SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) - January 21, 2000
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AMERICAN ECO CORPORATION
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(Exact name of registrant as specified in its charter)
Ontario, Canada 0-10621 52-1742490
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(State or other jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
154 University Avenue, Toronto, Ontario M5H 3Y9
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(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code - (416) 340-2727
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Not Applicable
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(Former Name or Former Address, if changed since last report)
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Item 5. Other Events.
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On January 21, 2000, American Eco Corporation (the "Company") and its
81.9% owned subsidiary U. S. Industrial Services, Inc. ("USIS") entered into a
Settlement Agreement with Deere Park Capital, L.L.C. ("Deere Park"), settling a
litigation that Deere Park had instituted against the Company based upon
guarantees that the Company had given to Deere Park of certain indebtedness to
Deere Park. The Company agreed to pay $2,807,235 to Deere Park on or before May
15, 2000, and secured its payment obligation by a pledge of all of its shares of
USIS.
Item 7. Financial Statements and Exhibits.
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(C) Exhibits
10.1 Settlement Agreement, dated January 21, 2000, by and among Deere Park
Capital, L.L.C., American Eco Corporation and U.S. Industrial
Services, Inc.
10.2 Escrow Agreement, dated as of January 21, 2000, by and among Deere
Park Capital, L.L.C., American Eco Corporation and LaSalle Bank
National Association.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN ECO CORPORATION
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(Registrant)
Dated: April 26, 2000 By: /s/ Michael E. McGinnis
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Michael E. McGinnis,
President
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EXHIBIT 10.1
SETTLEMENT AGREEMENT
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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
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A. On or about November 9, 1998, Deere Park loaned S3 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 tiled 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
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Eco Corporation, case number 99 C 5408 (the "Litigation").
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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 anti 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
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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
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forth herein.
2. STIPULATION OF JUDGMENT. Concurrent with the execution of this
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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
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in favor of Deere Park in the amount of $2,842,235 in U.S. currency. Deere Park
shall cause the Stipulation to be entered by the Court in the Litigation only
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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,
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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
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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
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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
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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
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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 in form 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
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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
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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
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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
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be effective immediately and shall be deemed coupled with an interest.
11. REPRESENTATIONS AND WARRANTIES. AEC and USIS jointly and
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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
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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 rights 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
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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
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encumbrance upon any of the Pledged Collateral, under: (A) the charter
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 are 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
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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
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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 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 tiled 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 tiling, 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 act` 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
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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 tiling 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 Linder 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
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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
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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 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
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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
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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 obligations made pursuant to this Agreement, or otherwise fail to comply
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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 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 AEC 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 by 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
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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;
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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 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
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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
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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
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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.
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22. NOTICES. All notices or other communications required or
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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 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
11011 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 60610-4795
Attn: Warren Baker
Fax: (312) 644-3381
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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.
23. NON-DISCLOSURE. Except as provided below, none of Deere Park, AEC
--------------
or USIS shall directly or indirectly disclose any of the contents, arrangements
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
patties 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
11
<PAGE>
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 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 am 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
supercedes 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]
12
<PAGE>
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: /s/ David Morris
------------------------------------
Name: David Morris
------------------------------------
Its: President
------------------------------------
Address:
40 Skokie Boulevard, Suite 110
---------------------------------------
Northbrook, Illinois 60062
---------------------------------------
Attention: David J. Morris, Esq.
-----------------------------
AMERICAN ECO CORPORATION
By: /s/ Michael E. McGinnis
------------------------------------
Name: Michael E. McGinnis
-----------------------------------
Its: President/CEO
-----------------------------------
Address:
11011 Jones Road
---------------------------------------
Houston, Texas 77070
---------------------------------------
Attention: Michael E. McGinnis
-----------------------------
U.S. INDUSTRIAL SERVICES, INC.
By: /s/ Michael E. McGinnis
------------------------------------
Name: Michael E. McGinnis
-----------------------------------
Its: President/CEO
-----------------------------------
Address:
11011 Jones Road
---------------------------------------
Houston, Texas 77070
---------------------------------------
Attention: Michael E. McGinnis
-----------------------------
13
EXHIBIT 10.2
ESCROW AGREEMENT
----------------
This Escrow Agreement (this "Escrow Agreement") dated as of January
21, 2000 is made and entered into by and among Deere Park Capital, L.L.C.
("Deere Park"), American Eco Corporation ("AEC") and LaSalle Bank National
Association (the "Escrow Agent"). All capitalized terms used and not defined
herein shall have the meanings contained in that certain Settlement Agreement
dated January 21, 2000 by and among Deere Park, U.S. Industrial Services, Inc.
("USIS") and AEC (the "Settlement Agreement"). A copy of the Settlement
Agreement is attached for ease of reference for such definitions.
RECITALS:
---------
WHEREAS, pursuant to the Settlement Agreement, Deere Park and AEC have
agreed to suspend the Litigation until May 15, 2000 by providing, among other
things, for the irrevocable and unconditional right by Deere Park upon an Event
of Default to receive and foreclose, in whole or in part, some or all of the
Pledged Securities;
WHEREAS, the Settlement Agreement provides for the execution and
delivery of an escrow agreement, and Deere Park and AEC have agreed that the
execution and delivery of this Escrow Agreement shall satisfy the obligations of
the parties hereto to execute and deliver such an escrow agreement.
NOW, THEREFORE, in consideration of the consummation of the
transactions contemplated by the Settlement Agreement, the covenants and
agreements herein set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Appointment and Agreement of the Escrow Agent. Deere Park and AEC
---------------------------------------------
hereby appoint and designate the Escrow Agent as the escrow agent for the
purposes set forth herein, and the Escrow Agent hereby accepts such appointment
under the terms and subject to the conditions set forth herein.
2. Deposit of the Pledged Securities and USIS Collateral. Pursuant
-----------------------------------------------------
to the Settlement Agreement, as of January 21, 2000, AEC shall deliver to the
Escrow Agent 7 certificates which represent 7,175,858 shares of common stock
(the "Pledged Securities") in USIS to be held in an account (the "Escrow
Account"). The Pledged Securities represent all of the equity interests in USIS
owned by AEC. The cost of establishing the Escrow Account and the ongoing costs
and expenses including Deere Park's legal fees and other expenses related to
such Escrow Account shall be borne by AEC. In addition, AEC shall deliver to the
Escrow Agent the assignment of the USIS Collateral (as such term is defined in
the Settlement Agreement).
3. Establishment of Escrow.
-----------------------
3.1 Pledged Securities. The Escrow Agent shall hold in escrow
------------------
the Pledged Securities for the benefit of Deere Park to secure payment to Deere
Park of all amounts owed to it under the Settlement Agreement.
<PAGE>
3.2 Use of Pledged Securities. The Pledged Securities shall be
-------------------------
held and disbursed pursuant to the terms and subject to the conditions of the
Settlement Agreement, as set forth in Section 4 hereof.
3.3 USIS Collateral. The USIS Collateral shall be held and
---------------
disbursed pursuant to the terms and subject to the conditions as set forth in
Section 4 hereof.
4. Disbursements of the Pledged Securities.
---------------------------------------
4.1 Disbursement Upon Event of Default in Payments.
----------------------------------------------
The Settlement Agreement provides that AEC shall deliver to
the Escrow Agent, for the benefit of Deere Park: (i) $40,000 concurrent with the
execution of this Escrow Agreement ($35,000 by wire transfer payable to Deere
Park and $5,000 by wire transfer payable to the Escrow Agent); and (ii)
$2,807,235 on or before May 15, 2000 (collectively, the "Payments"). All
Payments (except the $35,000 payable above) shall be paid to Escrow Agent.
Escrow Agent's records shall be dispositive concerning the receipt of all
Payments. Within one (1) business day of receipt, Escrow Agent will promptly
remit to Deere Park any Payments. Notwithstanding any other remedies available
under this Escrow Agreement and the provisions of Section 4.2 below, upon any
Event of Default, where AEC fails to timely make either of the Payments, the
Escrow Agent, without further inquiry by the Escrow Agent, further instruction
to the Escrow Agent or further notice to the parties hereto, shall immediately
deliver the Pledged Securities to Deere Park, with stock powers endorsed in
blank necessary for Deere Park to foreclose upon the Pledged Securities.
4.2 Disbursement Upon Other Events of Default.
-----------------------------------------
Upon any Event of Default other than an Event of Default
arising from failure to timely make either of the Payments, Deere Park shall
deliver to the Escrow Agent and AEC a written notice of such Event of Default,
in which notice Deere Park shall use commercially reasonable efforts to set
forth the nature of such Event of Default based on information reasonably
available to Deere Park. Within two (2) business days of receipt of such notice
by the Escrow Agent and without any further inquiry by the Escrow Agent or
further instruction to the Escrow Agent, the Escrow Agent shall deliver to Deere
Park from the Escrow Account the USIS Collateral and number of Pledged
Securities, as well as assignments separate from certificates, as indicated in
such notice, unless the Escrow Agent shall have received a written notice of
AEC's objection to. the Event of Default. In the event Deere Park and AEC
dispute the occurrence of an Event of Default, they shall use their best efforts
to cause such matters to be heard at an evidentiary hearing of the court in the
Litigation no later than two business days after AEC's notice of objection and
the Escrow Agent shall act in the manner directed by the court in the
Litigation.
4.3 Disbursement Upon Payments by AEC.
---------------------------------
The Escrow Agent shall maintain a separate account for the
Payments and shall promptly notify Deere Park of receipt of all or any portion
of the Payments from AEC. The parties hereto acknowledge that the interest
accrued on the Payments shall be prorated to the extent the Payments are
received prior to May 15, 2000. The Escrow Agent shall deliver the Pledged
Securities and the USIS Collateral to AEC within 95 days following the Escrow
2
<PAGE>
Agent's receipt of the Payments and an amount for Deere Park's legal fees not to
exceed $5,000 (such legal fees to be confirmed in writing to the Escrow Agent by
Deere Park).
5. Termination of Escrow.
---------------------
5.1 Ninety-five days after the last of the Payments have been
made to the Escrow Agent, unless bankruptcy proceedings have been initiated by
or against AEC, without further inquiry by the Escrow Agent or further
instruction to the Escrow Agent, the Escrow Agent shall terminate this Agreement
and deliver the Pledged Collateral.
5.2 This Escrow Agreement shall automatically terminate if and
when all of the Pledged Collateral shall have been released by the Escrow Agent
in accordance with the terms and subject to the conditions of this Escrow
Agreement. Thereafter, the Escrow Agent shall be deemed to have discharged all
of its obligations hereunder.
6. Matters Affecting the Escrow Agent.
----------------------------------
6.1 Indemnification of the Escrow Agent. From and at all times
-----------------------------------
after the date of this Escrow Agreement, Deere Park and AEC shall, to the
fullest extent permitted by law and to the extent provided herein, indemnify and
hold harmless the Escrow Agent and each director, officer, employee, attorney,
agent and affiliate of the Escrow Agent (collectively, the "Indemnified
Parties") against any and all actions, claims (whether or not valid), losses,
damages, liabilities, costs and expenses of any kind or nature whatsoever
(including, without limitation, reasonable attorneys' fees, costs and expenses
actually incurred) incurred by or asserted against any of the Indemnified
Parties from and after the date hereof, whether direct, indirect or
consequential, as a result of or arising from or in any way relating to any
claim, demand, suit, action or proceeding (including any inquiry or
investigation) by any person, including, without limitation, Deere Park or AEC,
whether threatened or initiated, asserting a claim for any legal or equitable
remedy against any person under any statute or regulation, including, but not
limited to, any applicable securities laws, or under any common law or equitable
cause or otherwise, arising from or in connection with the negotiation,
preparation, execution. performance or failure of performance of this Escrow
Agreement or any transactions contemplated herein, whether or not any such
Indemnified Party is a party to any such action, proceeding, suit or the target
of any such inquiry or investigation; provided, however, that no Indemnified
Party shall have the right to be indemnified hereunder for any liability finally
determined by a court of competent jurisdiction to have resulted solely from the
gross negligence or willful misconduct of such Indemnified Party. If any such
action or claim shall be brought or asserted against any Indemnified Party, such
Indemnified Party shall promptly notify Deere Park and AEC in writing, and Deere
Park and AEC shall assume the defense thereof, including the employment of
counsel and the payment of all expenses. Such Indemnified Party shall, in its
sole discretion, have the right to employ separate counsel (who may be selected
by such Indemnified Party in its sole discretion) in any such action and to
participate in the defense thereof, and the fees and expenses of such counsel
shall be paid by such Indemnified Party, except that Deere Park and AEC shall be
required to pay such fees and expenses. Each of Deere Park, on the one hand, and
AEC, on the other hand, shall be responsible for one-half (1/2) of each such
indemnification responsibility. All such reasonable fees and expenses payable by
Deere Park and/or AEC pursuant to the foregoing sentence shall be paid from time
to time as incurred, both in advance of and after the final disposition of such
action or claim. The obligations of Deere Park and AEC under this Section 6.1
-----------
4
<PAGE>
shall survive any termination of this Escrow Agreement and the resignation or
removal of the Escrow Agent shall be independent of any obligation to the Escrow
Agent. The parties agree that neither the payment by Deere Park or AEC of any
claim by the Escrow Agent for indemnification hereunder nor the disbursement of
any amounts to the Escrow Agent in respect of a claim by the Escrow Agent for
indemnification shall impair, limit. modify or affect, as between Deere Park and
AEC, the respective rights and obligations of Deere Park, on the one hand, and
AEC, on the other hand, under the Settlement Agreement.
6.2 Duties and Liability of the Escrow Agent. The Escrow Agent's
----------------------------------------
sole responsibility shall be for the safekeeping and disbursement of the Pledged
Securities in accordance with the terms of this Escrow Agreement. The Escrow
Agent shall have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact not specifically set forth herein. The Escrow
Agent may rely upon any instrument, not only as to its due execution, validity
and effectiveness, but also as to the truth and accuracy of any information
contained therein, which the Escrow Agent shall in good faith believe to be
genuine, to have been signed or presented by the person or parties purporting to
sign the same and to conform to the provisions of this Escrow Agreement. Except
to the extent of gross negligence or willful misconduct, in no event shall the
Escrow Agent be liable for incidental, indirect, special, consequential or
punitive damages. The Escrow Agent shall not be obligated to take any legal
action or commence any proceeding in connection with the Escrow Account, any
account in which the Pledged Securities are deposited, this Escrow Agreement or
the Settlement Agreement, or to appear in, prosecute or defend any such le;-al
action or proceeding. The Escrow Agent may consult legal counsel selected by it
in the event of any dispute or question as to the construction of any of the
provisions hereof or of any other agreement or of its duties hereunder, or
relating to any dispute involving any party hereto. Deere Park and AEC, jointly
and severally, shall promptly pay, upon demand, the reasonable fees and expenses
actually incurred of any such counsel.
6.3 Fees. AEC shall compensate the Escrow Agent for its services
----
hereunder in accordance with Schedule A attached hereto. All of the compensation
----------
and reimbursement obligations set forth in this Section 6.3 shall be payable by
-----------
AEC upon demand by the Escrow Agent. The obligations of Deere Park and AEC under
this Section 6.3 shall survive any termination of this Escrow Agreement and the
-----------
resignation or removal of the Escrow Agent. AEC shall promptly pay such amounts
to the Escrow Agent or any Indemnified Party upon receipt of an itemized
invoice.
6.4 Escrow Agent to Follow Instructions of Deere Park and AEC.
---------------------------------------------------------
Except for matters covered by Section 4 and Section 5 hereof, the Escrow Agent
--------- ---------
shall at any time and from time to time take such action hereunder with respect
to the Pledged Securities as shall be agreed to in writing by Deere Park and
AEC.
6.5 Removal and Resignation of the Escrow Agent. Deere Park and
-------------------------------------------
AEC, acting jointly, may remove the Escrow Agent at any time upon thirty (30)
calendar days' prior written notice, signed by both Deere Park and AEC, to the
Escrow Agent. The Escrow Agent may resign at any time upon thirty (30) calendar
days prior written notice (unless waived by both Deere Park and AEC) to Deere
Park and AEC. Within thirty (30) calendar days after giving the foregoing notice
of resignation from the Escrow Agent, Deere Park and AEC shall jointly agree on
and appoint a successor escrow agent. The successor escrow agent shall be a
national bank having combined capital and surplus satisfactory to Deere Park as
shall be mutually selected by Deere Park and AEC. Any such successor escrow
4
<PAGE>
agent shall be appointed by a written instrument mutually satisfactory to and
executed by Deere Park and AEC, the Escrow Agent and the successor escrow agent.
If a successor escrow agent has not accepted such appointment by the
end of such thirty (30) calendar day period, the Escrow Agent may apply to a
court of competent jurisdiction for the appointment of a successor escrow agent
or for other appropriate relief. The reasonable costs and expenses (including
reasonable attorneys' fees and expenses actually incurred) incurred by the
Escrow Agent in connection with such proceeding shall be paid by, and be deemed
a joint and several obligation of, Deere Park, on the one hand, and AEC, on the
other hand.
Any successor escrow agent appointed under the provisions of this
Escrow Agreement shall have all of the same rights, powers, privileges,
immunities and authority with respect to the matters contemplated herein as are
granted herein to the original Escrow Agent. It is understood and agreed that no
resignation of the Escrow Agent shall be effective until a successor escrow
agent agrees to act hereunder. If the Escrow Agent submits a notice of
resignation, its only duty, until a successor escrow agent shall have been
appointed and shall have accepted such appointment, shall be to hold and dispose
of the Pledged Securities in accordance with this Escrow Agreement, but without
regard to any notices, requests, instructions, demands or the like received by
it from the other parties hereto after such notice of resignation shall have
been given, unless the same is a direction that the Pledged Securities be
delivered in their entirety to one of the other parties hereto.
7. Other Provisions.
----------------
7.1 Amendment and Waiver. This Escrow Agreement may not be
--------------------
amended or waived except in a writing executed by the party against which such
amendment or waiver is sought to be enforced. No course of dealing between or
among any persons having any interest in this Escrow Agreement will be deemed
effective to modify or amend any part of this Escrow Agreement or any rights or
obligations of any person under or by reason of this Escrow Agreement.
7.2 Notices. All notices, requests, demands, claims, and other
-------
communications hereunder will be in writing. Any notice, request. demand. claim
or other communication hereunder shall be deemed duly given: (i) when delivered,
if delivered in person or by commercial messenger service; or (ii) two days
following deposit with a recognized overnight courier service, provided that
such deposit occurs prior to such deadline as has been imposed by such service
,for overnight delivery; or (iii) when transmitted, if sent by facsimile copy,
provided confirmation of receipt is received by the sender, in each case
provided that such communication is addressed to the intended recipient thereof
as set forth below:
If to the 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
5
<PAGE>
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
11011 Jones Road
Houston, Texas 77070
Attn: Michael McGinnis
Fax: (281) 774-7005
If to Escrow Agent:
LaSalle Bank National Association
135 South LaSalle Street
Suite 1960
Chicago, Illinois 60603
Attn: Laura H. Mackey
Fax: (312) 904-2236
Any party may send any notice, request, demand, claim or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery or 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.
7.3 Binding Effect and Assignment. This Escrow Agreement and all
-----------------------------
of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
this Escrow Agreement nor any of the rights, interests or obligations hereunder
may be assigned by AEC, Deere Park or the Escrow Agent without the prior written
consent of Deere Park and AEC.
7.4 Severability. Whenever possible, each provision of this
------------
Escrow Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Escrow Agreement is held to
be prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Escrow Agreement.
7.5 Complete Agreement; No Third Party Beneficiaries. Subject to
------------------------------------------------
the terms of the Settlement Agreement concerning AEC and Deere Park, this Escrow
Agreement contains the complete agreement between the parties and supersedes any
6
<PAGE>
prior understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any way.
Nothing in this Escrow Agreement, expressed or implied, is intended to confer
upon any person or entity, other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Escrow Agreement.
7.6 Governing Law. This Escrow Agreement shall be construed,
-------------
governed and enforced according to the internal laws of the State of Illinois
without regard to conflicts of law principles. Any suit or proceeding brought
hereunder shall be subject to the exclusive jurisdiction of the courts located
in Cook County, Illinois. The parties hereto submit to such jurisdiction.
8. [INTENTIONALLY OMITTED].
9. Attorneys' Fees. Should any litigation be commenced between Deere
---------------
Park, on one hand, and AEC, on the other hand, concerning this Escrow Agreement
or the rights and duties of any party in relation thereto, Deere Park, if it is
the prevailing party, shall be entitled, in addition to such other relief as may
be granted, to receive reimbursement from the opposing party or parties, as
applicable, for Deere Park's attorneys' fees in such litigation, which shall be
determined by the court in that litigation.
10. Waiver of Trial by Jury. EACH OF THE PARTIES HERETO WAIVES, TO
-----------------------
THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON-CONENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 10. 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 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.
11. Counterparts and Facsimile Signatures. This Escrow Agreement may
-------------------------------------
be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. 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 other party hereto original
copies of any facsimile signature by overnight courier to the addresses set
forth in Section 7.2 above.
-----------
[Signature Page Follows]
7
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed effective as of the date first written above.
DEERE PARK CAPITAL, L.L.C.
By: /s/ David Morris
------------------------------------
Name: David Morris
----------------------------------
Its: President
----------------------------------
AMERICAN ECO CORPORATION
By: /s/ Michael E. McGinnis
------------------------------------
Name: Michael E. McGinnis
----------------------------------
Its: President/CEO
-----------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
AS ESCROW AGENT
By: /s/ Estelita E. Tucker
------------------------------------
Name: Estelita E. Tucker
----------------------------------
Its: Vice President
-----------------------------------
8
