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Exhibit 1
SETTLEMENT AGREEMENT
BY AND AMONG
DEERE PARK CAPITAL, L.L.C.,
AMERICAN ECO, CORPORATION
AND
U.S. INDUSTRIAL SERVICES, INC.
JANUARY 21, 2000
HOLLEB & COFF
55 EAST MONROE STREET
SUITE 4000
CHICAGO, ILLINOIS 60603
(312) 807-4600
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SETTLEMENT AGREEMENT
This settlement agreement (this "Agreement") is entered into this 21st day
of January, 2000, by and among Deere Park Capital, L.L.C. ("Deere Park"),
American Eco Corporation ("AEC") and U.S. Industrial Services, Inc. ("USIS").
RECITALS
A. On or about November 9, 1998, Deere Park loaned $3 million to UKStar,
Inc. and AEC guaranteed UKStar's indebtedness under this loan.
B. On or about October 2, 1998, Deere Park loaned $750,000 to Midatlantic
Recycling Technologies, Inc. ("MART") and AEC guaranteed MART's indebtedness
under this loan.
C. On or about March 18, 1998, Deere Park and AEC restructured AEC's
obligations to Deere Park by entering into a Restructuring Agreement and Demand
Note in favor of Deere Park. The Restructuring Agreement, the Demand Note and
the guaranties related to such documents are collectively referred to herein as
the "Loan Documents".
D. On or about August 18, 1999, Deere Park filed a complaint in the United
States District Court for the Northern District of Illinois, Eastern Division
(the "Court"), under the caption Deere Park Capital, L.L.C v. American Eco
Corporation, case number 99 C 5408 (the "Litigation").
E. In the Litigation, Deere Park asserted claims against AEC for default
and failure to pay under the above-mentioned guarantees, the Restructuring
Agreement and the Demand Note. AEC contends that it has defenses to the
Litigation.
F. Deere Park and AEC now desire to settle and compromise these claims and
defenses in order to forgo the costs and risks of litigation.
G. AEC owns 7,175,858 shares of the outstanding capital stock of USIS.
PROVISIONS
In consideration of the foregoing Recitals, the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. RECITALS. The Recitals above are incorporated as though fully set forth
herein.
2. STIPULATION OF JUDGMENT. Concurrent with the execution of this
Agreement, AEC shall execute and deliver to Deere Park a copy of the Stipulation
of Judgment (attached hereto as Exhibit A) (the "Stipulation") against AEC and
in favor of Deere Park in the amount of
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$2,842,235 in U.S. currency. Deere Park shall cause the Stipulation to be
entered by the Court in the Litigation only upon an Event of Default, as defined
herein. Prior to any motion for entry of the Stipulation on or before May 15,
2000, Deere Park shall give AEC at least two (2) business days notice of said
motion, and any such motion shall be subject to any defenses raised by AEC so
long as they are related to the terms and provisions of this Agreement; however,
AEC expressly waives any defenses based on sufficient legal consideration for
this Agreement.
3. CERTAIN FEES. Concurrent with the execution of this Agreement, AEC shall
pay Deere Park $35,000 in U.S. currency for legal fees incurred to date by Deere
Park in seeking to enforce its claims in the Litigation.
4. CONTINUANCE. Immediately after execution of this Agreement, the parties
shall jointly request that the Court enter and continue all aspects of the
Litigation until the next status conference to be conducted on the most
convenient date for the Court occurring after May 16, 2000.
5. PAYMENT. On or before May 15, 2000, AEC shall pay to LaSalle Bank
National Association (the "Escrow Agent") for the benefit of Deere Park
$2,807,235 in U.S. currency in good funds as consideration for the settlement of
Deere Park's claims under the Loan Documents. In the event that AEC pays to
Escrow Agent for the benefit of Deere Park $2,807,235 and complies with all
terms of this Agreement, Deere Park shall dismiss the Litigation with prejudice
95 days after payment in full and if no bankruptcy is pending against AEC or
USIS.
6. SECURITY INTEREST. As security for the timely fulfillment and
performance of each and every obligation hereunder, AEC pledges, transfers and
assigns to Escrow Agent for the benefit of Deere Park and grants to Escrow Agent
for the benefit of Deere Park a lien on and security interest in, the following
collateral, whether now owned or hereafter acquired, howsoever AEC's interest
therein may arise or appear (whether beneficially or of record and whether by
ownership, security interest, claim or otherwise):
a. all of AEC's entire right, title and interest in and to the
7,175,858 shares of common stock of USIS (collectively, the "Pledged
Securities"), which constitutes all of the securities of USIS held by AEC,
and all substitutions therefor and replacements thereof, all proceeds and
products thereof and all rights related thereto, including, without
limitation, the certificates representing the Pledged Securities, the right
to request that the Pledged Securities be registered in the name of Deere
Park or any of its nominees after an Event of Default, all warrants,
options, share appreciation rights and other rights, contractual or
otherwise, in respect thereof and of all dividends, cash, instruments and
other property from time to time received, receivable or otherwise
distributed in respect of or in addition to, in substitution of, on account
of or in exchange for any or all of the Pledged Securities;
b. any other shares of USIS from time to time acquired by AEC in any
manner, the certificates or other instruments representing such shares, all
options, warrants, share appreciation rights and other rights, contractual
or otherwise, in respect thereof and all
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dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of, in addition to, in
substitution of, on account of, or in exchange for any and all of such
shares; and
c. all proceeds of any and all of the foregoing.
7. DELIVERY OF CERTIFICATES. Concurrently with the execution of this
Agreement, AEC shall deliver all certificates and instruments currently
representing the Pledged Securities to Escrow Agent (who shall hold such Pledged
Securities for the benefit of Deere Park) accompanied by duly executed
instruments of transfer or assignments in blank, all inform and substance
satisfactory to Deere Park. All other certificates and instruments constituting
the Pledged Securities from time to time shall be delivered to Escrow Agent
promptly upon the receipt thereof by or on behalf of AEC. All such certificates
and instruments shall be held by Escrow Agent pursuant to an escrow agreement in
the form set forth as Exhibit D (the "Escrow Agreement") and shall be
accompanied by duly executed instruments of transfer or assignments in blank,
all in form and substance satisfactory to Deere Park.
8. ADDITIONAL SECURITY. As additional security for the prompt satisfaction
of the obligations herein, AEC hereby pledges, transfers and assigns to Escrow
Agent for the benefit of Deere Park and hereby grants a lien to Escrow Agent for
the benefit of Deere Park in all proceeds and payments payable by USIS to AEC,
including without limitation $1,000,000, payable by USIS to AEC as accrued and
unpaid management fees (the "USIS Collateral"). USIS agrees to pay the USIS
Collateral directly to Escrow Agent for the benefit of Deere Park. As used
herein, the Pledged Securities and the USIS Collateral shall be referred to
collectively as (the "Pledged Collateral").
9. DIVIDENDS. Unless an Event of Default shall have occurred and be
continuing, AEC shall be entitled to receive for its own use cash dividends on
the Pledged Securities paid out of earned surplus of USIS. Upon the occurrence
of an Event of Default, Deere Park may require any such cash dividends to be
delivered to the Escrow Agent as additional security hereunder or applied toward
the satisfaction of the obligations hereunder. Furthermore, provided that there
is no Event of Default during the term of this Agreement, AEC shall be entitled
to receive all payments due with respect to the USIS Collateral. Upon the
occurrence of an Event of Default, Deere Park shall be entitled to require that
all payments due with respect to the USIS Collateral be made directly to Deere
Park.
10. VOTING RIGHTS. So long as no Event of Default shall have occurred and
be continuing, AEC shall be entitled to vote or consent with respect to the
Pledged Securities in any manner not inconsistent with this Agreement. Upon the
occurrence and during the continuance of an Event of Default, all rights of the
AEC to vote, consent and exercise voting and other consensual rights with
respect to the Pledged Securities shall, immediately become vested in Deere Park
which shall thereupon have the sole right to exercise such rights. AEC hereby
grants to Deere Park an irrevocable proxy to vote, consent and exercise voting
and other consensual rights with respect to the Pledged Securities upon the
occurrence and during the continuance of an Event of Default, which proxy shall
be effective immediately and shall be deemed coupled with
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an interest.
11. REPRESENTATIONS AND WARRANTIES. AEC and USIS jointly and severally
represent and warrant to Deere Park as long as this Agreement remains in effect
as follows:
a. AEC is the sole legal and beneficial owner of the Pledged
Collateral free of any pledge, hypothecation, lien, charge, encumbrance or
security interest (collectively, "Encumbrance") in such instruments or the
proceeds thereof, except such as are granted hereunder;
b. The authorized capital stock of USIS, as of the date of this
Agreement, consists of 25,000,000 shares of common stock, 8,763,982 shares
of which are issued and outstanding; and 1,000,000 shares of preferred
stock, of which no shares have been issued or are outstanding. All issued
and outstanding shares of USIS common stock: (i) have been duly authorized
and validly issued; (ii) are fully paid and nonassessable; and (iii) were
issued in compliance with all applicable state and federal laws concerning
the issuance of securities. Except as set forth on Exhibit B, there are no
outstanding options, warrants, rights (including conversion or preemptive
rights and rights of first refusal), proxy or stockholder agreements, or
agreements of any kind for the purchase or acquisition from USIS of any of
its securities. There are no voting or other agreements which restrict
voting or dividend right on the USIS common stock. The securities
comprising the Pledged Collateral have been duly authorized and validly
issued, and are fully paid and non-assessable and constitute 7,175,858
shares of the issued and outstanding shares of capital stock of USIS.
c. AEC and USIS have full power and authority to execute, deliver and
perform this Agreement and all of the documents, certificates, instruments
and agreements contemplated hereby (the "AEC Ancillary Agreements"). The
execution, delivery and performance of this Agreement and the AEC Ancillary
Agreements by AEC and USIS have been previously authorized and approved by
AEC's and USIS' respective boards of directors as set forth on Exhibit C
and do not require any further authorization or consent of AEC, USIS or
either of their respective boards of directors or stockholders. This
Agreement has been duly authorized, executed and delivered by AEC and USIS
and is the legal, valid and binding obligation of AEC and USIS enforceable
in accordance with its terms, and each of the AEC Ancillary Agreements has
been duly authorized by AEC and USIS and upon execution and delivery by AEC
and USIS will be a legal, valid and binding obligation of AEC and USIS
enforceable in accordance with its terms;
d. Neither the execution and delivery of this Agreement or any of the
AEC Ancillary Agreements or the consummation of any of the transactions
contemplated hereby nor compliance with or fulfillment of the terms,
conditions and provisions hereof will: (i) conflict with, result in a
breach of the terms, conditions or provisions of, or constitute a default,
an Event of Default or an event creating rights of acceleration or
termination; (ii) result in cancellation or a loss of rights under, or
result in the creation or imposition of any encumbrance upon any of the
Pledged Collateral, under: (A) the charter
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or By-laws of either AEC or USIS, (B) any AEC or USIS note, instrument,
agreement, mortgage, lease, license, franchise, permit or other
authorization, right, restriction or obligation to which AEC or USIS is a
party or any of the Pledged Collateral is subject or by which AEC or USIS
ate bound, (C) any court order to which AEC or USIS is a party or any of
the Pledged Collateral is subject or by which Deere Park, AEC or USIS is
bound; or (iii) require the approval, consent, authorization or act of, or
the making by AEC or USIS of any declaration, filing or registration with,
any person or entity;
e. Upon delivery of the Pledged Collateral to Escrow Agent, this
Agreement and the taking possession by the Escrow Agent of the certificates
and instruments constituting the Pledged Collateral shall create a valid
first lien and perfected security interest in the Pledged Collateral and
the proceeds thereof subject to no prior encumbrance or agreement
purporting to grant to any third party a security interest in the property
or assets of the AEC which would, include the Pledged Collateral; and
f. None of the funds originally advanced by Deere Park shall be used
for the purpose, whether immediate, incidental, or ultimate, of buying or
carrying the Pledged Securities.
g. AEC has provided USIS with adequate and sufficient consideration
for the execution of this Agreement and the performance of the covenants
and other obligations contemplated hereby; such consideration consists of
the elimination of management fees payable from USIS to AEC from the date
of execution hereof to the termination of all obligations hereunder. USIS
hereby acknowledges receipt of such consideration and the benefits it will
derive from its execution of this Agreement and its performance hereunder.
12. COVENANTS. AEC and USIS hereby covenant that until all of the
Obligations have been satisfied in full:
a. AEC and USIS will not sell, convey or otherwise dispose of the
Pledged Collateral or any interest therein or create, incur or permit to
exist any Encumbrance whatsoever in or with respect to the Pledged
Collateral or the proceeds thereof;
b. AEC and USIS will not take any action whatsoever that might impair
the value of the Pledged Collateral or the liquidity thereof;
c. AEC and USIS shall afford to the officers, employees and authorized
representatives of Deere Park (including, without limitation, independent
public accountants and attorneys) complete access during normal business
hours to the offices, properties, employees and business and financial
records) of AEC and USIS to the extent Deere Park shall deem necessary or
desirable and shall furnish to Deere Park or its authorized representatives
such additional information concerning the Pledged Collateral as shall be
reasonably requested, including all such information as shall be necessary
to enable Deere Park or its representatives to verify the accuracy of the
representations and warranties contained in this Agreement, to verify that
the covenants of AEC and USIS
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contained in this Agreement have been complied with and to further the
purposes of this Agreement. Deere Park agrees that such investigation shall
be conducted in such a manner as not to interfere unreasonably with the
operations of AEC or USIS. No investigation made by Deere Park or its
representatives hereunder shall affect the representations and warranties
of AEC or USIS hereunder;
d. In addition to all other amounts payable hereunder, AEC shall pay
to Deere Park all of the out-of-pocket costs and expenses of Deere Park
(including the fees and out-of-pocket expenses of Deere Park's counsel) in
connection with the negotiation, preparation, execution and delivery of any
amendments, supplements or modifications to this Agreement, the Escrow
Agreement and any documents, instruments or agreements required to be
prepared or filed in furtherance of the purposes of this Agreement;
e. AEC and USIS shall fully cooperate and within six (6) calendar days
of any request, provide all information required by Deere Park to be filed
with any governmental entity in connection with this Agreement, including
without limitation information required by the Securities and Exchange
Commission. Such information supplied by AEC and USIS for inclusion in any
document shall not at the time contain any untrue statement of a material
fact or omit to state any material fact required to be stated in any such
filing or necessary in order to make the statements in such filing, in
light of the circumstances in which such statements were made, not
misleading. If, at any time AEC or USIS should discover any event or fact
relating to AEC, USIS or any of its affiliates, officers or directors which
would be required to be set forth in any such filing AEC or USIS, as
applicable, shall promptly inform Deere Park of such event or fact; and
f. AEC and USIS will not perform any acts following an Event of
Default under this Agreement which might prevent Deere Park from enforcing
any of the terms and conditions of this Agreement.
13. FURTHER ASSURANCES. AEC and USIS agree that at any time and from time
to time, at the sole cost and expense of AEC and USIS, as applicable, AEC and
USIS will promptly execute and deliver or cause to be executed and delivered all
further instruments and documents, and take all further action (including
without limitation the filing of the Uniform Commercial Code financing
statements), that may be necessary or desirable, or that Deere Park or Escrow
Agent may reasonably request, in order to create, perfect, maintain and protect
any security interest granted or purported to be granted by AEC and USIS to
Deere Park under this Agreement or to enable Deere Park to exercise and enforce
its rights and remedies under this Agreement.
14. DEERE PARK APPOINTED ATTORNEY-IN-FACT. AEC and USIS irrevocably appoint
Deere Park, any officer or agent of Deere Park and any other Person selected by
Deere Park as AEC's and Deere Park's respective attorneys-in-fact, with full
power of substitution and full authority in the place and stead of AEC and USIS,
as applicable, and in the name of AEC and USIS or otherwise, from time to time
in such person's discretion, upon the occurrence and during the continuance of
an Event of Default, to take any action and to execute any instrument which
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such person may deem necessary or advisable to accomplish the purposes of this
Agreement and, if an Event of Default shall have occurred to: (a) notify the
parties obligated on any of the Pledged Collateral to make payment to Deere Park
of any amounts due or to become due thereunder; (b) cause the Escrow Agent to
take control of any the Pledged Collateral, whether or not in Deere Park's
possession; and (c) to receive, endorse and collect all instruments payable to
AEC representing any Pledged Collateral or any cash, securities, interest,
dividends, distributions, rights or other property constituting the Pledged
Collateral.
15. REASONABLE CARE. Deere Park and Escrow Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which Deere Park and Escrow Agent accord securities
held for their own account, if any, it being understood that Deere Park and
Escrow Agent shall not have any responsibility under any circumstances
whatsoever for: (i) ascertaining or taking action with respect to calls,
conversions, subscription rights, tenders, maturities or other matters relative
to the Pledged Collateral, whether or not the Deere Park and Escrow Agent has or
is deemed to have knowledge of such matters; or (ii) taking any necessary steps
to preserve rights of AEC or any other person against any parties with respect
to any Pledged Collateral. Deere Park and Escrow Agent shall further be deemed
to have exercised reasonable care in the custody and preservation of any of the
Pledged Collateral in its possession if it takes such action for that purpose
consistent with the purposes of this Agreement as, AEC shall request in writing,
but (unless such failure constitutes gross negligence or willful misconduct on
the part of Deere Park or Escrow Agent) failure by Deere Park and Escrow Agent
to comply with any such request shall not of itself be deemed a failure to
exercise reasonable care, and no failure by Deere Park or Escrow Agent to do any
act with respect to the preservation of such Pledged Collateral not so requested
by AEC, shall of itself be deemed a failure to exercise reasonable care in the
custody or preservation of such Pledged Collateral. AEC represents to Deere Park
and Escrow Agent that AEC has made its own arrangements for keeping informed of
changes or potential changes affecting the Pledged Collateral, and AEC agrees
that Deere Park and Escrow Agent shall have no responsibility to inform AEC of
any such changes or potential changes or for taking any action or omitting to
take any action with respect to such matters.
16. DEFAULT AND REMEDIES. The term "Event of Default" hereunder shall mean
any of the following: (i) AEC shall fail to pay any amount due hereunder when
due or declared due (whether by maturity, acceleration or otherwise); (ii) any
proceeding shall be instituted by or against either AEC or USIS or any of the
Pledged Collateral under the provisions of any federal bankruptcy,
reorganization, arrangement of debt, insolvency or receivership laws or similar
state or federal laws providing for the relief of debtors, and such proceeding
shall not have been dismissed within sixty (60) days following its institution
(except for a proceeding instituted by Deere Park prior to an Event of Default);
(iii) either AEC or USIS shall make an assignment for the benefit of its
creditors; (iv) either AEC or USIS is or shall be in breach or default in any
respect of any of its representations, warranties, covenants, undertakings or
other obligation made pursuant to this Agreement, or otherwise fail to comply
with any of the terms and provisions hereof; (v) any proceeding shall be
instituted by or against either AEC or USIS for its liquidation or dissolution
and not dismissed within sixty (60) days, or (vi) either AEC or USIS shall
cease, to do business as a going concern for any reason. If an Event of Default
under the terms of this
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Agreement shall occur and be continuing, Deere Park, without obligation to
resort to any other security, at the expense of AEC, shall have the right at any
time and from time to time, in its sole discretion, to take any and all of the
following actions:
a. cause the Court in the Litigation to enter the Stipulation and
enforce the same to its fullest extent;
b. exercise any and all rights under applicable law to enforce the
judgment and discover the assets of AEC;
c receive from the Escrow Agent the Pledged Collateral upon an Event
of Default relative from the failure of AEC to timely make the payments
under this Agreement.
d. instruct the Escrow Agent to deliver the Pledged Collateral to
Deere Park within two (2) business days of Deere Park's notice to the
Escrow Agent and AEC for all Events of Default (other than the failure of
AJEC to make any payments contemplated by this Agreement) of an Event of
Default and to exercise any and all rights under applicable law to enforce
its security interest including but not limited to its rights to foreclose
upon the Pledge Collateral and apply the proceeds of the Pledged Collateral
directly to reduce the obligations hereunder, provided that in the event of
an Event of Default other than a payment default, AEC shall have the right
to object to delivery of the Pledged Collateral as provided in the Escrow
Agreement; and
e. receive from AEC interest at a rate of 14% per annum on all amounts
due on the obligations hereunder accruing from May 15, 2000 to the date
paid and reimbursement of all attorneys' fees and costs and all other costs
and expenses incurred b Deere Park related to enforcement of Deere Park
rights herein, including without limitation, entering and enforcing the
Stipulation and foreclosing on the Pledged Collateral, all of which amounts
AEC hereby agrees to promptly pay to Deere Park.
17. SECURITY INTEREST ABSOLUTE. All rights of Deere Park and security
interests granted under this Agreement and all obligations of AEC and USIS under
this Agreement shall be absolute and unconditional irrespective of:
a. Any lack of validity or enforceability of the Loan Documents;
b. Any proceeding under any bankruptcy, reorganization, arrangement of
debt, insolvency, readjustment of debt or receivership having been filed by
or against AEC or USIS;
c. Any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations hereunder, or any other
amendment or waiver of or consent to any departure from the Loan Documents;
d. Any exchange, release or non-perfection of any collateral, or any
release or
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amendment or waiver of or consent to departure from any guaranty, for
all or any part of the obligations hereunder of any person or entity;
e. Any law, regulation or order of any jurisdiction affecting any term
of any of the obligations hereunder or Deere Park's rights with respect to
any of the obligations hereunder; or
f. Any other circumstances which might otherwise constitute a defense
available to, or a discharge of, AEC or USIS in respect of the obligations
hereunder or of this Agreement.
18. TERMINATIONS. Ninety-five days after the satisfaction in full of all
obligations hereunder and conditioned upon no bankruptcy proceeding pending
against AEC or USIS, this Agreement shall terminate and the Escrow Agent shall:
(i) release any lien and security interest that it has in the USIS Collateral;
(ii) deliver to the AEC the USIS Collateral and such proceeds, if any, or
interest thereon as shall not have been realized upon or otherwise disposed of
pursuant to this Agreement or applied at the direction of the AEC for payment in
part of the obligations hereunder; and (iii) deliver to AEC the Pledge
Securities. In addition, after satisfaction of all obligations hereunder, Deere
Park shall: (i) subrogate all of Deere Park's rights in UKStar and MART to AEC;
(ii) upon execution by the other parties hereto, enter into mutual releases in
form and substance satisfactory to the parties hereto; and (iii) deliver to AEC
the shares of ETI it holds as of the date of termination.
19. [Intentionally Omitted.]
20. SEVERABILITY. The provisions of this Agreement are severable, and if
any clause or provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or enforceability shall affect
only such clause or provision or part thereof in such jurisdiction and shall not
in any manner affect such clause or provision in any other jurisdiction or any
other clause or provision in this Agreement.
21. INDEMNIFICATION, SURVIVAL OF OBLIGATIONS. AEC and USIS shall jointly
and severally indemnify, defend and hold Deer Park harmless against and in
respect of all claims, demands, losses and expenses, including interest,
penalties and reasonable attorneys' fees and expenses, which arise, result from
or relate to any inaccuracy, misrepresentation, breach or failure by either AEC
or USIS to perform any of their representations, warranties, covenants or
agreements under or pursuant to this Agreement. All representations, warranties,
covenants and obligations contained in this Agreement shall survive the
execution of this Agreement.
22. NOTICES. All notices or other communications required or permitted
under this Agreement shall be in writing and shall be deemed given or delivered:
(i) when delivered personally or by commercial messenger; (ii) one day following
deposit with a recognized overnight courier service, provided such deposit
occurs prior to the deadline imposed by such service for overnight delivery; or
(iii) when transmitted, if sent by facsimile copy, provided confirmation of
receipt is received by sender in each case provided such communication is
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addressed to the intended recipient as set forth on the signature page hereto
and:
If to Deere Park:
Deere Park Capital, L.L.C.
40 Skokie Blvd.
Suite 110
Northbrook, Illinois 60062
Attn: David J. Morris, Esq.
Fax: (847) 509-8525
with a copy to:
Holleb & Coff
55 E. Monroe Street
Suite 4000
Chicago, Illinois 60603
Attn: Don S. Hershman, Esq.
Fax: (312) 807-3900
If to AEC:
American Eco Corporation
110 11 Jones Road
Houston, Texas 77070
Attn: Michael McGinnis
Fax: (281) 774-7005
With a copy to:
Gardner Carton & Douglas
Quaker Tower
321 North Clark Street
Suite 3400
Chicago, IL 606104795
Attn: Warren Baker
Fax: (312) 644-3381
Any party to this Agreement may send any notice, request, demand, claim or
other communication hereunder to the intended recipient at the address set forth
herein using any other means (including electronic mail), but no such notice,
request, demand, claim or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
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23. NON-DISCLOSURE. Except as provided below, none of Deere Park, AEC or
USIS shall directly or indirectly disclose any of the contents, arrangement, or
other information pursuant to this Agreement to any party other than those
employees, representatives and agents of Deere Park, AEC or USIS ("Authorized
Representatives") who need to know and who agree to be bound by the provisions
contained in this Section. Each party hereto shall be liable to the other
parties for any breach of this Section by any of them or their Authorized
Representatives. No party shall, without the approval of the other parties
hereto, make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent that
they shall be so obligated by law or the rules of any stock exchange, in which
case the other parties hereto shall be so advised and the parties hereto shall
use their best efforts to cause a mutually agreeable release or announcement to
be issued; provided that the foregoing shall not preclude communications or
disclosures necessary to comply with any court order, subpoena or civil
investigative demand, or any accounting and Securities and Exchange disclosure
obligations.
24. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and shall be binding upon the successors and assigns of the parties hereto.
25. HEADINGS. The section headings in this Agreement are solely for
convenience of reference and shall not affect the meaning or interpretation of
this Agreement or of any term of provision hereof.
26. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws (as opposed to the conflicts of law
provisions) of the State of Illinois. Any litigation between the parties which
arises out of this Agreement or the obligations hereunder shall be instituted
and prosecuted only in the appropriate state or federal court or other tribunal
situated in Cook County, Illinois. AEC and USIS hereby submit to the exclusive
jurisdiction of such courts and tribunals for purposes of any such action and
the enforcement of any judgment or order arising therefrom. AEC and USIS hereby
waive any right to a change of venue and any and all objections to the
jurisdiction of the state and federal courts and other tribunals located in the
State of Illinois.
27. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH OF THE PARTIES HERETO
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY AND TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT
TO A TRIAL BY THE COURT.
28. COUNTERPARTS/FACSIMILE SIGNATURES. This Agreement may be executed and
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delivered (including by facsimile transmission) in one or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart. Notwithstanding the laws of any jurisdiction in
which this Agreement is executed or delivered, a facsimile signature shall for
all purposes be deemed an original and shall bind the signor as if such
facsimile were an original. Each party hereto undertakes to deliver to each of
the other parties' hereto original copies of any facsimile signature by
overnight courier to the addresses set forth in Section 22 above.
29. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the parties with respect to the subject matter hereof and supersedes all
discussions, negotiations and agreements among the parties, whether oral or
written, prior to or contemporaneous with the date hereof This Agreement may be
changed, modified or amended only by written agreement signed by AEC, Deere Park
and USIS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Settlement
Agreement as of the date first written above.
DEERE PARK CAPITAL, L.L.C.
By:
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Name:
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Its:
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Address:
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Attention:
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AMERICAN ECO CORPORATION
By:
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Name:
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Its:
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Address:
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Attention:
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U.S. INDUSTRIAL SERVICES, INC.
By:
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Name:
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Its:
----------------------------------------
Address:
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Attention:
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