EXHIBIT 10.11 (Environmental Safeguards, Inc.)
The registrant has requested that portions of this exhibit be given confidential
treatment and the registrant has filed a confidential treatment request with
the Secretary of the Commission. In this exhibit, the registrant has omitted
such material and the registrant has marked this exhibit with a mark " ***** "to
indicate where material has been omitted.
FIRST AMENDMENT
TO
HAZARDOUS WASTE RECYCLING SERVICES CONTRACT - U.S.
This First Amendment to Hazardous Waste Recycling Services Contract - U.S.
("AMENDMENT") is entered into on the day hereinafter set forth by and between
OnSite Technology L.L.C., an Oklahoma limited liability company ("ONSITE") with
offices at 2600 South Loop West, Ste. 645, Houston, Texas 77054 and Rineco
Chemical Industries, Inc., ("CUSTOMER") with offices at 819 Vulcan Road,
Haskell, Arkansas 72015.
W-I-T-N-E-S-S-E-T-H
WHEREAS, OnSite and Customer have previously entered into a Hazardous Waste
Recycling Services Contract - U.S. dated February 15, 2003 ("Contract"); and
WHEREAS, a wholly-owned subsidiary of Customer, Rineco Recycling, LLC, an
Arkansas limited liability company ("Lender"), has agreed to lend certain sums
to OnSite subject and pursuant to the terms of that certain Commitment Letter
(herein so called) dated March 6, 2003, executed by and between OnSite and
Lender; and
WHEREAS, pursuant to the Commitment Letter, and as a condition of making
the Loan described therein, the parties hereto desire to amend the Contract as
set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, OnSite and Customer hereby mutually agree as
follows:
1. The parties hereto agree that the Contract did not terminate on
***** due to the failure of Customer to obtain any approvals as provided in
Paragraph 4.1, but remains in full force and effect except as modified herein,
and that Paragraph 4.1 is hereby amended in its entirety to read as follows:
TERM FOR PILOT PROGRAM PHASE: The initial term of this
Contract shall be the "Pilot Program Phase." The Pilot
Program Phase shall have a term of ***** operating days from
the Commencement of Pilot Program Phase. Commencement of
Pilot Program Phase shall be the date on which OnSite's ITD
Unit has been delivered to the Work Site and set up and
Onsite is ready to begin operating, but in no event shall be
later than *****. OnSite shall not deliver any Units to the
Work Site prior to notification from Customer that all
permits and approvals have been obtained. In the event
Customer has not obtained such approvals by *****, then this
Contract shall automatically
terminate effective on such date without either party having
any further obligations hereunder. At the end of the Pilot
Program Phase the parties shall evaluate the operating
results under this Contract, specifically evaluating (i)
throughput of the ITD Unit, (ii) acceptability of processed
solids residue for mixing with liquids (iii) salability of
the recycled liquid hydrocarbons residue and (iv) ability to
process *****. If the parties in good faith determine that
the results of the Pilot Program are acceptable, then the
Contract shall immediately, without further action on the
part of either party, progress to the "Operating Phase,"
otherwise, the Contract shall terminate. At any time during
the Pilot Program Phase at Rineco's option Rineco can elect
to move into the "Operating Phase."
2. Paragraph 4.2 of the Contract is amended in its entirety to read as
follows:
TERM FOR OPERATING PHASE: Unless terminated as otherwise
provided in this Contract, the Operating Phase shall have a
term ending on *****. On such date and each anniversary
thereof, the Contract will be automatically renewed on a
year-to-year basis for a one-year renewal term, unless
either party gives the other party sixty (60) days prior
notice of its intent to terminate this Contract, effective
on ***** or any anniversary date thereof.
3. Paragraph 4.3 of the Contract is amended in its entirety to read as
follows:
EARLY TERMINATION: Notwithstanding the provisions of
Paragraph 4.1 and 4.2, Customer may direct the stoppage of
the work and the termination of this Contract even though
there has been no default on the part of OnSite hereunder by
giving ninety (90) days prior written notice to OnSite. In
the event such notice is given, this Contract will terminate
on the ninetieth (90th) day after notice is given. OnSite
shall be entitled to payment in accordance with Paragraph
2.2 for all work performed under the Contract until
termination.
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4. Add a new Paragraph 2.4 to read as follows:
OFFSET: In the event OnSite falls to pay any sums when due
to Lender as provided in the Loan Documents, Customer shall
be permitted to offset any such sums from payments due
OnSite by Customer hereunder without the need to provide
prior notice to or obtain any consent from OnSite.
Customer's decision to exercise this right of offset shall
in no way relieve OnSite from its obligations under the Loan
Documents, including the obligation to pay any sums when
due, or constitute a waiver by Lender of any rights or
remedies it may have under said Loan Documents.
5. All of the terms, conditions, covenants, representations, warranties
and agreements contained in the Contract, except as to the extent amended by
this Amendment, including all Exhibits and Schedules thereto, shall remain in
full force and effect and continue to be binding upon the parties hereto and
thereto according to their respective terms. By executing and delivering this
Amendment, OnSite and Customer hereby expressly ratify and reaffirm the terms
and conditions of their respective obligations under the Contract.
6. This Amendment may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7. This Agreement shall be binding upon and inure to the benefit of the
parties, their respective heirs, successors and assigns, and personal and legal
representatives.
This Amendment is agreed to and accepted by the parties on this 20th day of
----
March, 2003.
RINECO CHEMICAL INDUSTRIES, INC. ONSITE TECHNOLOGY L.L.C.
By: /s/ Michael R. Spinks By: /s/ James S. Percell
--------------------------------- --------------------------------
James S. Percell, President
Name: Michael R. Spinks
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Title: V.P. of Admin & CFO
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