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EXHIBIT 10.22
MISCELLANEOUS AGREEMENT
THIS MISCELLANEOUS AGREEMENT (the "Agreement") is made and entered into
this 16th day of September, 1998 (the "Effective Date"), by and between Newpark
Resources, Inc., a Delaware corporation (herein, together with each of its
officers, directors, employees, agents, attorneys, representatives,
predecessors, successors, and assigns, and its direct and indirect corporate
parents, subsidiaries, partners, affiliates, and joint venturers, and all of
their respective officers, directors, employees, agents, attorneys,
representatives, predecessors, successors, and assigns, referred to as
"Newpark"), and U.S. Liquids, Inc., a Delaware corporation (herein, together
with each of its officers, directors, employees, agents, attorneys,
representatives, predecessors, successors, and assigns and its direct and
indirect corporate parents, subsidiaries, partners, affiliates, and joint
venturers and all of their respective officers, directors, employees, agents,
attorneys, representatives, predecessors, successors, and assigns, referred to
as "USL"), with reference to the following facts:
A. On or about December 13, 1996, pursuant to Asset Purchase Agreement
dated December 2, 1996 (the "Sanifill Purchase Agreement"), by and among (i)
SANIFILL, INC., a Delaware corporation ("Sanifill"), ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇., a
Delaware limited partnership also known as ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LTD. ("▇▇▇▇▇▇▇▇") and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, L.P., a Delaware limited partnership ("▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇") (collectively "Sellers"), and (ii) USL, as "Buyer," USL assumed all
liabilities and obligations of Sanifill and ▇▇▇▇▇▇▇▇ under the contracts (the
"Contracts") listed on Schedule I attached to this Agreement, which are referred
to in this Agreement by the names with which they are identified on Schedule I.
Sanifill and ▇▇▇▇▇▇▇▇ were not relieved of any of their obligations to Newpark
under the Contracts and certain other agreements.
B. Concurrently with the execution of this Agreement, Newpark and USL
are executing a Settlement of Arbitration and Release (the "Release"), a "NOW
Payment Agreement," a "Noncompetition Agreement," and an "Asset Purchase
Agreement" (collectively, the "New Deal Agreements"), which may affect the
continued existence of the Contracts.
C. By this Agreement, the parties intend to clarify the continuing
status of the Contracts after the execution of the Release and the New Deal
Agreements.
NOW THEREFORE, in consideration of the foregoing and of their mutual
covenants and agreements contained herein, the parties hereby agree as follows:
1. Status of Disposal Agreement. Articles VI, VII, VIII, IX, X (other
than Section 10.2) and XII of the Disposal Agreement shall remain in full force
and effect in accordance with their terms solely with respect to events
occurring and circumstances existing before the Effective Date. All other
provisions of the Disposal Agreement are hereby terminated, except to the extent
that such terminated provisions are necessary to the interpretation of the
articles of the Disposal Agreement that remain in effect.
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2. Status of Sanifill Noncompetition Agreement and Joinder Agreement.
As between Newpark and USL, the Sanifill Noncompetition Agreement between
Sanifill, Inc. and USL and the Joinder Agreement shall be superseded as of the
Effective Date by the Noncompetition Agreement dated September 16, 1998. As
regards Sellers and their Affiliates, the Sanifill Noncompetition Agreement and
the Joinder Agreement shall remain in full force and effect in accordance with
the terms of each.
3. Guarantee of NOW Payment Agreement.
3.1 Performance of NOW Payment Agreement. Newpark hereby covenants
and agrees that it shall cause Newpark Environmental Services, Inc. ("NESI") to
fully perform all of its obligations under the NOW Payment Agreement in a timely
manner. Newpark further covenants and agrees that it shall take all action,
including, without limitation, supplying information necessary for the
determination of quantities of NOW that may be delivered pursuant to the NOW
Payment Agreement, or shall refrain from taking any action, as is necessary or
appropriate, to permit NESI to fully perform all of its obligations under the
NOW Payment Agreement in a timely manner.
3.2 Unconditional Guarantee. Newpark hereby unconditionally and
irrevocably guarantees the performance in full of all obligations of NESI under
the NOW Payment Agreement, with the same force and effect and to the same extent
as if Newpark were a party to the NOW Payment Agreement having the same rights
and obligations thereunder as NESI.
3.3 No Set-Off; Guaranty of Performance or Payment Upon Demand.
Newpark shall perform any obligations or pay any amounts due in respect of the
obligations of NESI under the NOW Payment Agreement promptly upon demand by USL
or its Affiliates, without any set-off, defense or deduction for any claims or
counterclaims of any kind, except for any such set-offs, defenses, or deductions
that Newpark could assert if it were a party to the NOW Payment Agreement having
the same rights and obligations thereunder as NESI.
3.4 Waiver of Diligence, Etc. Newpark hereby waives diligence,
presentment, demand, protest and notice of any kind with respect to this
Guarantee, as well as any requirement that USL or its affiliates exhaust any
rights or take any action against NESI.
3.5 Waiver of Suretyship Defenses. To the extent permitted by
applicable law, Newpark hereby waives any and all legal and equitable defenses
that arise by reason of Newpark's status as a surety for NESI, which defenses
would not be available to Newpark if it were a party to the NOW Payment
Agreement having the same rights and obligations thereunder as NESI.
3.6 Status. This Section 3 shall remain in full force and effect to
the extent that the NOW Payment Agreement remains in full force and effect in
accordance with its terms and shall terminate when and to the extent that the
NOW Payment Agreement is terminated.
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4. Status of Prior Guaranty. The Prior Guaranty shall remain in full
force and effect to the extent that the Disposal Agreement remains in full force
and effect in accordance with its terms and shall terminate as of the Effective
Date to the extent that the Disposal Agreement is terminated.
5. Guarantee of Asset Purchase Agreement. Newpark hereby
unconditionally and irrevocably guarantees the performance in full of all
obligations of NESI under the Asset Purchase Agreement, with the same force and
effect and to the same extent as if Newpark were a party to the Asset Purchase
Agreement having the same rights and obligations thereunder as NESI. Newpark
hereby waives diligence, presentment, demand, protest and notice of any kind
with respect to this Guarantee, as well as any requirement that USL or its
affiliates exhaust any rights or take any action against NESI.
6. Status of Lease and Subleases. The Lease and the Subleases
referred to in Schedule I of this Agreement shall remain in full force and
effect for three years beginning July 1, 1998, and then terminate on June 30,
2001. USL shall take all necessary and reasonable measures to ensure that the
Lease and Subleases remain in full force and effect until June 30, 2001.
7. Other Agreements. All other agreements between or among Newpark
and Sellers, or any of them, whether or not assumed by USL, shall remain in full
force and effect in accordance with their terms. USL shall use commercially
reasonable efforts to enforce for the benefit of Newpark all relevant covenants,
including, but not limited to, noncompetition covenants, made by Sellers in
favor of USL under or in connection with the Sanifill Purchase Agreement.
8. Effect on Sellers. Although Sellers are not party to this
Agreement, the parties intend that none of Sellers shall be relieved of any
obligations owed by them to Newpark by reason of the transactions which gave
rise to the Contracts, except to the extent that certain provisions of the
Disposal Agreement are prospectively terminated hereby.
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ON THIS DATE, the Parties have executed multiple originals of this
Miscellaneous Agreement.
NEWPARK RESOURCES, INC.
Dated: By:
---------------------------- Name:
Title:
U.S. LIQUIDS, INC.
Dated: By:
---------------------------- Name:
Title:
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Schedule I
List of Contracts
1. NOW Disposal Agreement by and among Sanifill, Inc., a Delaware
corporation, NOW Disposal Operating Co., a Delaware corporation and an
indirect wholly-owned subsidiary of Sanifill, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd.,
a Delaware limited partnership, dated as of June 4, 1996, as assumed by
Newpark Resources, Inc., by an Assumption and Guarantee Agreement dated
August 12, 1996 (the "Disposal Agreement")
2. Noncompetition Agreement by and between Sanifill, Inc., a Delaware
corporation, and Newpark Resources, Inc., a Delaware corporation, dated
as of August 12, 1996 (the "Sanifill Noncompetition Agreement")
3. Joinder Agreement, dated as of August 12, 1996, by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Ltd., a Delaware limited partnership, for the benefit of Newpark
Resources, Inc., and its Affiliates (the "Joinder Agreement")
4. Assumption and Guarantee Agreement by and among Newpark Resources,
Inc., a Delaware corporation, Sanifill, Inc., a Delaware corporation,
and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd., a Delaware limited partnership, dated as of
August 12, 1996 (the "Prior Guaranty")
5. Lease and Access Agreement by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd., a
Delaware limited partnership, and Newpark Resources, Inc. [no date]
(the "Lease")
6. Sublease and Access Agreement by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd., a
Delaware limited partnership, and Newpark Resources, Inc. [no date]
(the "First Sublease")
7. Sublease and Access Agreement by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd. a
Delaware limited partnership, and Newpark Resources, Inc. [no date]
(the "Second Sublease," and, together with the First Sublease, the
"Subleases")