SUBLEASE AND ACCESS AGREEMENT
This Sublease and Access Agreement ("Sublease") is made and entered into
this 12 day of August, 1996, by and between Xxxxxxxx Xxxxx, Ltd., a Delaware
limited partnership, Inc. ("Sublessor"), and Newpark Resources, Inc.
("Sublessee"), with reference to the following facts:
A. Concurrently with the execution and delivery of this Sublease,
pursuant to an Asset Purchase and Lease Agreement (the "Purchase Agreement")
dated June 5, 1996, by and among (i) Sanifill, Inc., a Delaware corporation
("Sanifill") of which Sublessor is an indirect wholly owned subsidiary,
Sublessor, NOW Disposal Holding Co., a Delaware corporation and an indirect
wholly-owned subsidiary of Sanifill ("Holdco"), and (ii) Sublessor, Sublessee
has purchased from Holdco all of the equity interests in NOW Disposal
Operating Co., a Delaware corporation ("Disposeco"), and has purchased or is
leasing from Sublessor the Included Assets (as that term is defined in the
Purchase Agreement) used in the Acquired Business (as that term is defined in
the Purchase Agreement). Sublessee may assign its rights and delegate its
duties under this Sublease to a wholly-owned subsidiary ("Subsidiary"),
provided that no such assignment of rights or delegation of duties shall
relieve Sublessee of its obligations under this Sublease. If such assignment
is made, references to Sublessee in this Sublease shall be deemed to refer to
Subsidiary, or to Sublessee and Subsidiary, as appropriate.
B. Concurrently with the execution and delivery of this Sublease,
Sublessee has guaranteed the obligations of Disposeco under the NOW Disposal
Agreement (the "Disposal Agreement") dated June 4, 1996, among Disposeco,
Sanifill and Sublessor.
C. Sublessor is the lessee under a lease agreement dated October 13,
1987 pursuant to which Xxxxxx Xxxxxxxx, Inc. ("Lessor") leased to Sublessor's
subsidiary, assignor, Land Treatment Systems, Inc. ("LTS"), certain immovable
property comprising 400 acres, more or less, including all buildings thereon
and improvements thereto, which property is located in the Parish of St.
Xxxx, State of Louisiana and is described more particularly in Exhibit "A"
hereto ("Prime Premises"). The lease was amended by an amendment to lease
agreement by and between Lessor and LTS dated March 25, 1991 (hereinafter the
lease agreement, as amended, the "Prime Lease"). A copy of the Prime Lease is
attached as Exhibit "B" hereto.
C. This Sublease sets forth the terms and conditions on which Sublessee
is subleasing from Sublessor the portion (and no other portion) (the "Dock")
of the Prime Premises described in Exhibit "C" attached hereto. The Dock is
part of the Included Assets and constitutes one of the Landfarm Docks
referred to in Paragraph 13.1 of the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by both parties, the parties hereby agree as follows:
1. SUBLEASE OF DOCK.
Sublessor hereby subleases the Dock to Sublessee, and Sublessee hereby
subleases the Dock from Sublessor, on the terms and conditions set forth in
this Sublease. Subject to the terms of this Sublease and Section 14 of the
Prime Lease, Sublessor hereby guarantees to Sublessee the quiet enjoyment and
peaceable possession of the Dock for the entire term of this Sublease.
Without limiting the generality of the foregoing, Sublessor covenants that,
except for its rights under Section 14 of the Prime Lease, it will not cause,
suffer or permit the Prime Lease to be terminated prior to the Termination
Date, as defined herein. Before exercising the right to terminate the Prime
Lease under Section 14 thereof, Sublessor will consult with Sublessee, and,
if Sublessee reasonably asserts that such termination would have a material
adverse effect on its business, the parties will attempt in good faith to
reach agreement on suitable compensation to Sublessee for its damages,
including any consequential damages, resulting from such termination.
2. WARRANTY BY SUBLESSOR.
Sublessor hereby warrants and represents to Sublessee that Sublessor is
the lawful successor or assignee of LTS, the original Lessee under the Prime
Lease, that the Prime Lease has not been amended or modified except as
expressly set forth herein, that Sublessor is not now, and as of the
commencement of the term hereof will not be, in default or breach of any of
the provisions of the Prime Lease, and that Sublessor has no knowledge of any
claim by Lessor that Sublessor is in default of breach of any of the
provisions of the Prime Lease.
3. TERM.
The term of this Sublease commences on the date hereof ("Commencement
Date") and shall continue for a period of twenty-five (25) years, i.e., until
August 12, 2021 ("Termination Date"), unless otherwise sooner terminated in
accordance with the provisions of this Sublease. Sublessor shall exercise all
options available to extend or renew the Prime Lease to and including the
Termination Date (or, if applicable, shall take no action to prevent the
automatic exercise or extension of any option(s) under the Prime Lease) to
ensure that the Prime Lease shall extend through and including the
Termination Date. The foregoing notwithstanding, (a) Sublessee (but not
Sublessor) shall have the right to terminate this Sublease at any time upon
not less than ten days' written notice to Sublessor, and (b) this Sublease
shall terminate automatically upon termination of the Disposal Agreement.
4. RENT.
All rental for the Dock for the entirety of the term of this Sublease,
to and including the Termination Date, is included in the Purchase Price, as
that term is defined in the Purchase Agreement, that has been paid by
Sublessee, the receipt and sufficiency of which are hereby expressly
acknowledged by Sublessor. The Purchase Price paid by Sublessee further
includes payment in full, for the entire term of this Sublease, of all other
amounts payable by Sublessor under the Prime Lease due on account of the
Prime Premises, whether characterized in the Prime Lease as additional rental
or otherwise.
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5. ACCESS TO DOCK.
The execution of this Sublease notwithstanding, Sublessor shall
have the right of access to the Dock and, in cooperation with Sublessee,
shall have the right to operate the Dock, in each case solely for the purpose
of performing their obligations under the Disposal Agreement. Subject to the
terms of the Disposal Agreement, Sublessor shall pay all costs and expenses
of operating the Dock in connection with the Disposal Agreement. The parties
shall indemnify and hold harmless each other with respect to obligations
arising in connection with the operation of the Dock to the extent and in the
manner provided in Article IX of the Disposal Agreement. If, at any time,
Sublessor permanently ceases to use the Prime Premises for disposal of waste
in connection with the Disposal Agreement, this right of access shall
terminate.
6. MAINTENANCE AND OPERATING EXPENSES.
To the extent the Prime Lease requires Sublessor to pay or
reimburse Lessor for any of the costs and expenses incurred in the repair,
maintenance or upkeep (including but not limited to taxes, utilities, and
insurance) of the Dock, Sublessor shall pay all such costs and expenses in
further consideration of its receipt of the Purchase Price. Without limiting
and generality of the foregoing, Sublessor shall pay all costs and expenses
relating to the repair, maintenance, upkeep and insuring of any improvements
on the Dock, when such improvements are erected by Sublessor, as required by
Section 8 of the Prime Lease. Sublessee shall pay all costs and expenses
relating to the repair, maintenance, upkeep and insuring of any improvements
on the Dock, when such improvements are erected by Sublessee, as required by
Section 8 of the Prime Lease. Sublessee shall obtain the written consent of
Sublessor prior to erecting any improvements on the Dock.
7. USE OF DOCK.
Sublessee may use the Dock for any lawful purpose permitted under
the Prime lease.
8. ASSIGNMENT AND SUBLETTING.
Sublessee may assign this Sublease or further sublet or assign all
or any part of the Dock without Sublessor's prior written consent, and
Sublessor may assign this Sublease without Sublessee's prior written consent;
provided, however, that no such subleasing or assignment shall relieve
Sublessor or Sublessee of any of its obligations hereunder.
9. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of the Prime Lease are
incorporated into and made a part of this Sublease as if Sublessor were the
lessor thereunder, Sublessee the lessee thereunder, and the Dock the Prime
Premises, except for Sections 8, 10, 11 and 13 thereof, which shall not be
binding on Sublessee. Upon the reasonable request of Sublessee, Sublessor
shall use commercially reasonable efforts to attempt to cause Lessor to
perform its obligations under the Prime Lease for the benefit of Sublessee.
If the Prime Lease terminates,
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this Sublease shall terminate and the parties shall be relieved of any
further liability or obligation under this Sublease; provided, however, that
if the Prime Lease terminates as a result of a default or breach by Sublessor
or Sublessee under this Sublease and/or the Prime Lease, then the defaulting
party shall be liable to the non-defaulting party for all damage suffered as
a result of such termination, including consequential damages but
excluding punitive damages.
10. DISPUTE RESOLUTION.
10.1 NEGOTIATION OF DISPUTES. In the event of any dispute or
disagreement arising out of or relating to the implementation and performance
of this Sublease, the parties agree to attempt to resolve such dispute in
good faith. Should a resolution of such dispute not be obtained within 15
days after the origination of the dispute, either party may submit the
dispute to arbitration in accordance with the provisions of this Paragraph 10
by written notice to the other party.
10.2 GENERAL ARBITRATION. Any claim, dispute or controversy
arising out of or relating to this Sublease or the breach thereof not settled
in accordance with the provisions of Section 10.1 shall be submitted to
binding arbitration by the American Arbitration Association (the "AAA") for
arbitration in Houston, Texas, in accordance with the Commercial Arbitration
Rules of the AAA then in effect. There shall be three arbitrators, with each
party selecting one. The third arbitrator shall be selected by the
two party-selected arbitrators and shall be the chairperson of the panel. The
party requesting arbitration shall name its arbitrator in the demand for
arbitration and the other party shall name its arbitrator within 30 days after
receipt of the arbitration demand. The third arbitrator shall be named within
30 days after the appointment of the second arbitrator. The AAA shall be
empowered to appoint any arbitrator not named in accordance with the
procedure set forth herein. The decision of the arbitrators shall be final
and binding upon the parties without the right to appeal to the courts. The
award rendered in arbitration shall be final and judgment thereon may be
entered by any court having jurisdiction thereof. The costs and expenses of
the arbitration (including reasonable attorney's fees) will be borne by the
losing party, unless the arbitrators determine that it would be manifestly
unfair to honor this provision and determine a different allocation of costs.
10.3 APPLICABLE LAW AND ARBITRATION ACT. This agreement to
arbitrate shall be enforceable in either federal or state court. The
enforcement of this agreement to arbitrate and all procedural aspects of this
agreement to arbitrate, including, without limitation, the construction and
interpretation of this agreement to arbitrate, the scope of the arbitrable
issues, allegations of waiver, delay or defenses as to arbitrability, and the
rules governing the conduct of the arbitrations, shall be governed by and
construed pursuant to the United States Arbitration Act. In deciding the
substance of any such claim, dispute or disagreement, the arbitrators shall
apply the substantive laws of the State of Texas; provided, however, that the
arbitrators shall have no authority to award punitive damages under any
circumstances regardless of whether such damages may be available under Texas
law, the parties hereby waiving their right, if any, to recover punitive
damages in connection with any such claims, disputes or disagreements.
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10.4 CONTINUATION OF PERFORMANCE. In the event of a dispute
arising under this Sublease, the parties shall continue performance of their
respective obligations hereunder pending resolution of the dispute.
11. NOTICES.
All notices and demands which may or are to be required or
permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Sublessor to Sublessee shall be given
in writing and delivered in person or sent by overnight delivery service or
United States Mail, postage prepaid, addressed to the Sublessee at the Dock,
and to the address hereinbelow, or to such other place as Sublessee may from
time to time designate in a notice to the Sublessor. All notices and demands
by the Sublessee to Sublessor shall be given in writing and delivered in
person or sent by overnight delivery service or United States Mail, postage
prepaid, addressed to the Sublessor at the address, set forth herein, and to
such other person or place as the Sublessor may from time to time designate
in a notice to the Sublessee.
To Sublessor at: Xxxxxxxx Xxxxx, Ltd.
0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: W. Xxxxxxx Xxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxx
Xxxxx & Xxxxx LLP
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, XX 00000-0000
To Sublessee at: Newpark Resources, Inc.
Lakeway Center
0000 X. Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxx, President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
12. MISCELLANEOUS.
12.1 BINDING EFFECT. This Sublease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns.
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12.2 COUNTERPARTS. This Sublease 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.
12.3 HEADINGS. Captions and paragraph headings used herein are for
convenience only and are not a part of this Sublease and shall not be used in
construing it.
12.4 AMENDMENTS; WAIVERS. No provision or term of this Sublease or any
agreement contemplated herein between the parties hereto may be supplemented,
amended, modified, waived or terminated except in a writing duly executed by
the party to be charged. No waiver of any of the provisions of this Sublease
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided. Failure of a party to insist on
strict compliance with any of the terms and conditions of this Sublease shall
not be deemed a waiver of any such terms and conditions.
12.5 ENTIRE AGREEMENT. This Sublease, the Purchase Agreement and the
Disposal Agreement comprise the entire agreement of the parties and
supersede all earlier understandings of the parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF the parties have executed and delivered this
Sublease as of the date first set forth above.
SUBLESSOR:
XXXXXXXX XXXXX, LTD.
By SANIFILL GP HOLDING CO., INC., its
General Partner
By: /s/ XXXXXXX X. XXXXXX
---------------------------------
SUBLESSEE:
NEWPARK RESOURCES, INC.
By: /s/ XXXXX X. XXXX
---------------------------------
Xxxxx X. Xxxx, President
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EXHIBIT A
ALL THAT CERTAIN PIECE OR PARCEL OF LAND, together with all the buildings and
improvements thereon, all rights, ways, means, privileges, servitudes,
prescriptions, appurtenances and advantages thereunto belonging or in anywise
appertaining thereto, and being that certain tract of land known as the upper
portion of Xxxxxxx Island situated in the junction of Bayou Xxxxxxx, Boeuf
and Berwick Bay or Atchafalaya River; bounded West by Bayou Xxxxxxx and in
the rear by swamp, and being that plantation commonly known as Xxxxxxx
Island, and estimated to contain 400 acres, more or less, comprising all of
Section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 12 East (SELF). Bounded on the south by
the third pipeline, all as per survey.
The above property is situated in St. Xxxx Xxxxxx, Louisiana.
EXHIBIT B
OCTOBER 19, 0000
XXXXX XXXXXXXXX XXXXXX XXXXXX XX XXXXXXX
BY: XXXXXX XXXXXXXX, INC. STATE OF LOUISIANA
TO: LAND TREATMENT SYSTEMS, INC. PARISH OF ST. XXXX
THIS CONTRACT OF LEASE, made and entered into by and between:
XXXXXX XXXXXXXX, INC., a Louisiana corporation, domiciled in St. Xxxx
Xxxxxx, Louisiana, herein represented by and appearing through XXXXXXX
XXXXXXXX XXXXX, its President and XXXXXX X. XXXXXXXX, XX., its
Vice-President, pursuant to the resolution attached hereto and made part
hereof, whose mailing address is (for purposes of any payments and notices
required hereunder) X.X. Xxx 000, Xxxxxx Xxxx, Xx. Xxxx Xxxxxx, Xxxxxxxxx
00000, hereinafter referred to as "LESSOR", and
LAND TREATMENT SYSTEMS, INC., a Louisiana Corporation, herein represented by
Xxxx X. Xxxx, its President, by virtue of a Resolution of the Board of
Directors attached hereto, which mailing address is Xxxxx 0, Xxx 00,
Xxxxxxxxx, Xxxxxxxxx 00000, hereinafter referred to as "LESSEE";
WITNESSETH:
1.
The LESSOR does by these presents lease unto LESSEE, who does by these
presents lease from the LESSOR, for the terms, considerations and subject to
all the conditions and stipulations hereinafter set forth, the following
described property ("leased premises" or "premises"), to-wit:
ALL THAT CERTAIN PIECE OF PARCEL OF LAND, together with all the
buildings and improvements thereon, all rights, ways, means,
privileges, servitudes, prescriptions, appurtenances and advantages
thereunto belonging or in anywise appertaining thereto, and being that
certain tract of land known as the upper portion of Xxxxxxx Island
situated in the junction of Bayou Xxxxxxx, Boeuf and Berwick Bay or
Atchafalaya River; bounded West by Bayou Xxxxxxx and in the rear by
swamp, and being that plantation commonly know as Xxxxxxx Island, and
estimated to contain 400 acres, more or less, comprising all of Section
16, Township 16 South, Range 12 East (SELD). Bounded on the south by the
???? pipeline, all as per survey.
The above property is situated in St. Xxxx Xxxxxx, Louisiana.
LESS AND EXCEPT:
A small tract situated in the Southwest Corner of said Section
owned or claimed by Estate of Xxxxx Xxxxxxx.
All as per survey by X.X. XXXX & COMPANY, dated April, 1964, the leased
premises shaded in "red" on attached survey attached hereto and made a
part hereof.
2.
LESSOR acknowledges that LESSEE intends to use all or a portion of
the tract herein leased premises as a non-hazardous waste treatment
facility, hereinafter a "Land Farm". Further, as part of its operation,
LESSEE intends to receive for treatment, oilfield wastes that presently
are classified as "non-hazardous" by State and Federal regulatory
agencies. In the event said agencies or any governmental or legislative
body should reclassify said oilfield waste to a "hazardous"
classification, such amendment or reclassification shall not serve as a
basis for cancellation of this lease by LESSOR. LESSEE acknowledges
that it has examined the leased premises, and is satisfied with same and
agrees that the premises are satisfactory for the purposes intended.
Notwithstanding any other provisions of this lease, LESSEE's sole
responsibility to LESSOR at the termination of this lease is to execute
a closure plan in compliance with the rules and regulations now in
effect.
Further, LESSOR acknowledges that because of the nature of the
activities to be conducted by LESSEE on the leased premises as
aforementioned and notwithstanding the fact that LESSEE has executed
the closure plan required by its lease, if all or some portion of the
leased premises may be unsuitable for some purposes, LESSOR agrees that
it will not be entitled to any damages from LESSEE as a result thereof.
3.
This lease is made and entered into a primary term ("primary
term") of three (3) years commencing on the 30th day of September, 1987
and terminating on the 29th day of September 1990.
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4.
This lease is made for and in consideration of the covenants
herein contained and rental payments as follows:
(A) an annual rental to be paid by LESSEE to LESSOR during the
primary term and any extensions or renewals thereof of TWO THOUSAND FOUR
HUNDRED DOLLARS AND NO/100 ($2,400.00) per annum due on the 30th day of
October of each year;
(B) a monthly rental of FORTY AND NO/100 ($40.00) DOLLARS per
month per acre, due and payable on the 1st day of each month
commencing October 1, 1987 and continuing on the 1st day of each month
thereafter. The rental per acre shall be calculated based on acreage
used in the non-hazardous waste treatment facility located on the
leased premises. The acreage shall be certified correct as per survey
by Paragon Engineers, Inc., Howda, Louisiana, or another surveyor
selected by LESSOR and LESSEE. LESSOR and LESSEE agree that there are
sixty (60) acres used in the non-hazardous waste treatment facility at
the commencement of this lease. Either LESSOR or LESSEE, at any time
during this lease or any extensions or renewals thereof, may obtain a
survey of the amount of acreage actually used in the non-hazardous
waste treatment facility operation in order to show an increase or
decrease of acreage used by the LESSEE, and the rent shall be adjusted
in the next following rental payment due following the date of
certification by the surveyor.
The phrase "used in the non-hazardous waste treatment facility"
described in this subsection shall mean the acreage permitted for
non-hazardous waste disposal by the State of Louisiana and actively
holding or available for receipt of non-hazardous waste product in the
land farm operation.
The rent payable by LESSEE to LESSOR under this subsection during
the primary term and any option periods exercised shall be as follows:
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BEG END YEAR RENTAL DUE
--- --- ---- ----------
10/87 9/88 1st $ 40.00 per acre/per month
2nd 50.00 per acre/per month
9/90 3rd 55.00 per acre/per month
10/90 10/91 4th) 1st option period 60.00 per acre/per month
92 5th) 60.00 per acre/per month
93 6th) 60.00 per acre/per month
10/93 7th) 2nd option period 65.00 per acre/per month
95 8th) 65.00 per acre/per month
96 9th) 65.00 per acre/per month
10/96 10th) 3rd option period 70.00 per acre/per month
98 11th) 70.00 per acre/per month
99 12th) 70.00 per acre/per month
10/99 00 13th) 4th option period 75.00 per acre/per month
01 14th) 75.00 per acre/per month
02 15th) 75.00 per acre/per month
(C) FORTY-FIVE DOLLARS AND NO/100 ($45.00) per month, due and payable on
the 1st day of each month commencing October 1, 1987 and continuing on the
1st day of each month thereafter, which is designated as rental for the
structure located on the leased premises and used as an office for the
non-hazardous waste operation on the leased premises.
All of the rental payments provided in this lease shall be made in the
name of "XXXXXX XXXXXXXX, INC." and paid in such name at P. O. Xxx 000,
Xxxxxx Xxxx, Xx. Xxxx Xxxxxx, Xxxxxxxxx 00000, unless LESSEE is notified in
writing of a change of address.
5.
At the expiration of the primary term of this lease, LESSEE shall have
the prior right and option to extend this lease for four (4) consecutive
three (3) year terms. The options shall be automatically exercised by LESSEE
and it shall be bound by the terms for each of the three (3) year option
periods unless LESSEE notifies LESSOR in writing that it does not intend to
exercise the option as provided below. The rentals due during the option
periods are in accordance with Section 4(a) hereinabove.
LESSEE shall be conclusively presumed to have automatically accepted the
right of option next exercisable unless LESSEE notifies LESSOR of LESSEE'S
rejection to the next option and hence termination of the lease at the
conclusion of the then current term which notice shall be mailed to LESSOR at
its address as provided
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herein (or at such other place as LESSOR may designate in writing) through
the United States Mail either registered or certified, not later than thirty
(30) days prior to the expiration of the primary term of this lease for
exercising the first option and thirty (30) days prior to the expiration of
the then current term of this lease in the case of all other options, with a
copy of the letter of said rejection of the right of option to be recorded
(if requested by LESSOR) in the Conveyance Records of St. Xxxx Xxxxxx,
Louisiana. The option(s) granted herein shall be void if thirty (30) days
prior to the expiration of the then current lease term, LESSEE (i) is in
default after notice of same from LESSOR as provided in this lease or (ii) in
fact does not properly exercise the previous option(s) granted it herein.
6.
The leased premises may be used for any lawful purposes, but not for any
unlawful purpose(s), or purposes which do not conform with or abide by the
zoning regulations and/or other regulations (including environmental
protection, clean water, Corps of Engineers) or ordinances, statutes and laws
of the Parish, State of other governmental agencies in which the premises are
located or to which it is now or in the future subjected. The premises may be
sublet or assigned in whole or in part by the LESSEE without LESSOR's prior
written consent except that the premises may not be sublet or assigned for
any purposes prohibited by this lease and any such subletting or assignment
shall not release the LESSEE from its obligations hereunder and shall further
be construed as a promise of the part of any such sub-lessee(s) or assignee
to assume to be bound by all of the obligations of LESSEE hereunder. LESSOR
reserves the right to inspect the leased premises at reasonable times.
7.
It is understood and agreed that LESSEE shall have the right to
construct or erect buildings, paving, lay utility lines and
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other improvements on the leased premises, as it desires provided that same are
so constructed or erected at LESSEE'S sole cost and expense after obtaining the
proper permits and approvals free the necessary governmental agencies. LESSEE
shall not subject the leased premises to any liens for such construction or
erection and if any be filed, whether meritorious or not, LESSEE shall promptly
have same extinguished or bonded out. All buildings, erections and/or
improvements (including any wharves, docks or excavation permitted herein) shall
conform to and have the proper permits for all buildings, zoning and/or other
laws, regulations or ordinance of the parish and state wherein the leased
premises are located, including Corps of Engineers, environmental protection,
clean water, State of Louisiana and other such agencies and/or governmental
entities. It is further agreed and understood that there shall be no diggings
or excavations of the surface of the premises within seventy-five feet (75') of
the water line of Zayou Boeuf, except as required for bulkheading and the laying
of utility-type lines.
LESSEE also has the right to bulkhead that portion of the leased premises
fronting on Bayou Boeuf and to construct levees on the leased premises. Any
dirt removed by excavation must remain on the leased premises but and be used
for the construction of levees thereon or for other purposes having to do with
operations of LESSEE'S business on the leased premises. In the event that any
native dirt obtained by excavation is removed from the leased premises (which
removal requires the affirmative prior written approval of LESSOR) LESSOR shall
be paid by LESSEE one-half (1/2) of the income from the sale of such dirt after
deducting LESSEE'S cost of removing same. Any reusable material generated from
the land treatment system may be sold by the LESSEE without any obligation to
the LESSOR.
LESSEE shall have the right to encumber its right to use and occupy the
leased premises, including any buildings and improvements which may be placed
upon the premises by LESSEE, by a
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leasehold mortgage as security for any bona fide debt. If required by a lender,
LESSOR shall promptly consent in writing to the LESSEE'S mortgaging its
leasehold interest in the leased premises as created by this lease contract,
and, if further required by the lender, LESSOR shall subordinate its lessor's
lien to the mortgage or security taken by any lender including any movables of
LESSEE or others which may be described in said mortgage; however, the
requirements of this paragraph shall in no manner be construed to be a mortgage
or other lien created against LESSOR'S ownership of the leased premises or
rights thereto (except the notice provisions hereinafter provided and the
subordination of LESSOR'S lien as described herein).
LESSOR will additionally, upon written request, setting forth the name and
address of the person to be so notified, given notice to any mortgagee, sub-
lessee or assignee of this leasehold of any default by LESSEE in the performance
of LESSEE'S obligations under this lease. Any mortgagee, sub-lessee or assignee
shall have the privilege of complying with the terms of this lease in order to
protect itself against such default, and such compliance shall have the same
effect as if performance had been by LESSEE. Any mortgagee, sub-lessee or
assignee shall be entitled to the same grace periods prescribed in this lease,
and LESSOR will take no action prejudicial to the interest of any mortgagee,
sub-lessee or assignee unless each such person shall have been given the notice
hereby required and shall have failed to cure such default within the time limit
set forth in this lease.
6.
Any and all repairs, maintenance and upkeep of and to the leased premises
shall be assumed and undertaken by the LESSEE at its sole cost and expense; this
shall include the LESSEE'S assuming all repairs and maintenance of any and all
improvements placed on the premises by LESSEE, all paving, utilities, grounds,
excavations and surface conditions of the leased premises. LESSEE shall
maintain the leased premises and any improvements constructed
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thereon in good condition at its own cost and expense and deliver the same to
the LESSOR at the termination of the lease and execution of the closure plan as
provided in Section 2 above. Prior to LESSEE vacating the leased premises, any
excavation for pits or otherwise shall be filled by LESSEE with dirt or reusable
material.
If for any reason any local, state or federal governmental agency or entity
prohibits LESSEE from (1) engaging in its waste treatment operations permitted
by LESSOR under the terms of this lease for a period of over three (3) months
and LESSEE has made a good faith effort to correct the deficiencies which gave
rise to the prohibition of LESSEE'S operation by said governmental agency, or
(ii) revises the rules applicable to operation of such business and thereby make
such operations significantly more expensive, then on giving three (3) months
notice to LESSOR, LESSEE may cancel this lease with no further liability except
that it shall have the obligation to meet all the conditions, including the
payment of rental, to the LESSOR until such cancellation and further LESSEE
shall be required to fill the land as provided in the above paragraph.
9.
LESSEE is hereby granted the privilege of erecting a sign in good taste on
the herein leased premises provided that such sign shall advertise LESSEE'S
business only and no revenue producing advertising shall be erected on the
demised premises.
10.
LESSEE will indemnify, protect and save harmless LESSOR from any loss,
cost, damage or expense, including defense and attorney's fees related
thereto, caused by injuries or death to person(s) or property while in or on
said demised premises or in any way connected with the occupancy or use
thereof; and the LESSOR shall not be liable for any loss or any property of
LESSEE from said premises or for any damage to any property of LESSEE,
LESSEE'S guests, invitees, patrons, customers or employees, however
-8-
occurring; further, LESSEE shall furnish to LESSOR certificates of general
liability insurance with good and solvent insurance companies in the Owner's,
Landlord's and Tenant's name, including pollution clean up if available,
acceptable to LESSOR protecting LESSOR and LESSEE from such above described
casualty(ies) and liability(ies) in the combined single limit of
$1,000,000.00. LESSEE shall cause LESSOR to be named as an additional insured
in said policy and shall maintain and pay the premium for said insurance
throughout the term of this lease.
The happening of any one or more of the following listed events
(hereinafter referred to singularly as "event of default" and plurally as
"events of default") shall constitute a breach of this lease agreement on the
part of LESSEE, namely:
a. The filing by or on behalf of LESSEE of any petition or pleading to
declare LESSEE a bankrupt or for any arrangement under the bankruptcy
act, or the adjudication in bankruptcy or LESSEE under any bankruptcy
law or act.
b. The failure of LESSEE to pay any rents payable under this lease
agreement on or before the maturity of same and the continued failure
to pay the same for fifteen (15) days or more after notice of such
default is received by the LESSEE.
c. The failure of LESSEE to fully and promptly perform any act required
of it in the performance of this lease or to otherwise comply with any
term or provision hereof and the continuance of such default for a
period of thirty (30) days after receipt of written notice, without
proper steps having been taken to remedy the same.
d. The appointment by any court or under any law of a receiver, trustee
or other custodian of the property, assets or business of LESSEE,
which appointment shall not have been vacated within thirty (30) days
after the appointment.
e. The assignment by the LESSEE of all of its property or leasehold
interest in this lease by process of law in satisfaction of any
judgment.
Upon the happening of any event of default, LESSOR shall have the right,
at its option, to exercise any one of the following remedies in addition to
appropriate remedies which may otherwise be provided by law, as follows:
A. There shall, at the election of LESSOR, become forthwith
-9-
due, accelerated, payable and eligible so much of the whole rent for the whole
term of this lease as shall have been ascertained to be payable in definite
and fixed amounts but which shall not have matured at the time such election
is exercised, and the LESSOR may proceed by attachment, suit or otherwise, to
collect the rents so becoming due, payable and eligible in the same manner as
though by the terms of this lease such rents were payable in advance, and the
LESSOR may thereafter from time to time proceed, by attachment, suit or
otherwise, to collect any of the rents thereafter from time to time becoming
due and payable under any of the provisions of this lease which LESSEE shall
fail to pay at maturity rates thereafter becoming due and payable as
aforesaid, and the covenant of LESSEE is to pay the same, being severable at
the option of LESSOR from which are accelerated and eligible under the
foregoing terms of this paragraph and from the covenant of LESSEE to pay such
rents.
X. XXXXXX shall have the right, at its election, to annul this lease and
immediately to re-enter upon and take possession of said premises; and such
re-entry shall not bar recovery of rent then accrued or damages for breach of
covenant, nor shall the receipt of rent after condition broken be deemed a
waiver or forfeiture.
C. If the demised premises shall be deserted or amended during the term,
or if LESSEE shall be evicted from said premises by summary proceedings, or
otherwise, or upon the happening of any event or default, LESSOR may, at its
election, re-enter the same by force or otherwise, without being liable for
prosecution therefor, and may relet said premises at any time as agent of
LESSEE, applying any monies collected, first, to cost, fees and expenses of
collecting, then, to the expense of obtaining possession and redecorating
and/or altering the premises, then, to the payment of the rent and all other
sums owing and to become owing LESSOR, and paying any surplus thereof to the
LESSEE, and such re-entry and reletting shall not discharge LESSEE from
liability for rent nor
-10-
free any other covenant of this lease by it to be kept and performed.
In the event of default on the part of LESSEE and the employment of an
attorney for the collection of any amount due hereunder, or for the institution
of any suit for possession of said property, for service incident to the breach
of any other condition of this lease by LESSEE, or on account of bankruptcy
proceedings by or against LESSEE, or legal process being issued against the
furniture or effects of LESSEE, located on the leased premises, or the leasehold
interest of LESSEE, LESSEE agrees to pay and shall be taxed with a reasonable
attorney's fee, for LESSOR'S attorney, which fee shall be a part of the debt
evidenced and secured by this lease.
The failure of LESSOR to insist, in any one or more instances upon a strict
performance of any of the covenants of this lease, or to exercise any option
herein contained, shall not be construed as a waiver or a relinquishment for the
future of such covenant or option, but the same shall continue and remain in
full force and effect. The receipt by LESSOR of rent, with knowledge of the
breach of any covenant hereof, shall not be deemed a waiver of such breach, and
no waiver by LESSOR of any provisions hereof shall be deemed to have been made
unless expressed in writing and signed by LESSOR, or LESSOR'S agent.
12.
Any permanent structures or permanent improvements placed or constructed on
the leased premises by LESSEE shall automatically become LESSOR'S property at
the termination of this lease without any cost or payment by said LESSOR to
LESSEE. At the termination of this lease, LESSEE may however remove, at its
costs, expense and without substantial damage to any permanent improvements on
the leased property, any trade fixtures, machinery, drainage conduit movable
metal buildings (even when fixed to a cement foundation), pumps, equipment,
furniture and merchandise.
-11-
13.
LESSOR shall pay all city, parish, district, and state ad valorem taxes and
special assessments (all of which are herein referred to as "taxes") on the
herein leased premises and as such taxes exist for the year ending 1987 and
LESSEE shall pay all increases in such taxes or any new taxes over the total
amount of such taxes as the same exist for the year ending 1987. In addition to
increases in taxes, the LESSEE shall pay all taxes on the movable property and
on all buildings, improvements and additions which he (or others) places on the
leased premises. LESSEE shall also pay for all utilities used and consumed on
or from the leased premises and all insurances on any improvements on the leased
premises.
14.
If any part of the leased premises be taken or obtained by any public or
private authority under the power or threat of eminent domain or under the right
of expropriation, excluding pipeline or powerline rights of way or servitudes,
and such taking or obtaining has a substantial adverse effect upon LESSEE'S
business then being conducted on the leased premises, LESSEE at its option
within one hundred twenty (120) days of such expropriation or taking and after
sixty (60) days prior written notice to the LESSOR, may cancel this lease with
no further liability: in the event of any taking or obtaining of any right of
way for pipeline or powerlines, such rights of way or servitudes shall be so
granted, if within the power of LESSOR, to have the least adverse effect upon
LESSEE'S business conducted on the leased premises. In the event of any
expropriation or taking, LESSEE may pursue and seek independently any award for
the taking or damages to improvements to which it may be entitled to claim or
collect any award for any lease advantage which it may enjoy in excess of the
cost of any improvements, erections, construction or excavation it has performed
on or to the leased premises at the time of taking, LESSEE expressly releasing
and relinquishing such other claims as it may have to and in favor of LESSOR.
-12-
13.
A. LESSEE hereby waives all rights of recovery against LESSOR or its
officers, employees, agents or representatives for loss or damage to LESSEE'S
property or the property of others under LESSEE'S control, arising from any
cause.
B. LESSEE hereby agrees that LESSOR shall not be liable for injury to
LESSEE'S business or any loss or income therefrom or for damage to the goods,
wares, merchandise, equipment or other property of LESSEE or of its employees,
invitees, customers, or any other person, in, or about the leased premises, nor
shall LESSOR be liable for injury to the person of LESSEE'S officers, employees,
agents or contractors, or its invitees, permitees, or any other persons, whether
such damage or injury is caused by or results from fire, flood, wind, steam,
electricity, gas, water, or rain, whether the said damage or injury results from
conditions arising upon the leased premises or from other sources or places.
This lease may not be cancelled as the result of any force majeure except that
if any flood prevents LESSEE for a period in excess of six (6) consecutive
months from substantially using the leased premises for the conducting of its
business established on the leased premises, then this lease may be cancelled
with no further liability to LESSEE upon ninety (90) days prior notice to
LESSOR.
C. A determination by a court of competent jurisdiction that any provision
of this lease is invalid shall in no way affect the validity of any other
provision hereof.
D. Except as expressly herein provided, any amount due from LESSEE not
paid when due shall bear interest at ten percent (10%) per annum from the date
due. Payment of such interest shall not excuse or cure any default by LESSEE
under this lease.
E. Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by prepaid certified or registered mail
and addressed to LESSOR at:
XXXXXX XXXXXXXX, INC.
X.X. XXX 000
XXXXXX XXXX, XXXXXXXXX 00000
-13-
and to LESSEE at:
LAND TREATMENT SYSTEMS, INC.
XXXXX 0, XXX 00
XXXXXXXXX, XXXXXXXXX 00000
unless the address above stated for LESSEE or LESSOR is changed and the other
party notified of such change in writing.
F. No waiver of LESSOR of any provision hereof shall be deemed a waiver of
any other provision hereof or of any subsequent breach by LESSEE of the same or
any other provision. LESSOR'S consent or approval of any act shall not be
deemed to render unnecessary the obtaining of LESSOR'S consent to or approval of
any subsequent act of LESSEE.
G. Except for the monitoring and other requirements of the State of
Louisiana or other governmental agencies related to the closure plan, LESSEE
agrees that the leased premises shall be vacated by LESSEE promptly upon the
expiration of this lease; restoration of the leased premises, and the repair of
any damage as required of LESSEE herein, shall be completed before the
termination of this lease.
LESSOR reserves all mineral rights; however, LESSOR waives all surface
rights except that LESSOR may conduct exploration and/or drilling operations in
wetland areas on the South half of the property.
Commencing one (1) year from date hereof, and continuing annually
thereafter on the anniversary date of this agreement, the LESSEE shall furnish
to LESSOR successive one (1) year letters of credit equal to the rental
projected to be due and owning for the next years rent in accordance with
Section 4(B) herein.
LESSEE shall furnish to LESSOR a copy of the initial letter(s) of credit
furnished by LESSEE to the State of Louisiana, Department of Conservation.
XXXX XXXX personally guarantees all sums due under the terms of this
lease.
THUS DONE AND SIGNED by the LESSOR at St. Xxxx Xxxxxx, Louisiana, on this
13th day of October, 1987, in the
-14-
presence of the undersigned competent witnesses.
WITNESSES: XXXXXX XXXXXXXX, INC.
/s/ Xxxx X. Xxxxxx BY /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------ --------------------------------------
XXXX X. XXXXXX XXXXXX X. XXXXXXXX, XX.
Vice-President
/s/ Xxxxxx Xxxxxxxx Xxxxxxxx XXXXXX XXXXXXXX, INC.
------------------------------
XXXXXX XXXXXXXX JESCLARD
BY /s/ Xxxxxxx Xxxxxxxx Xxxxx
--------------------------------------
XXXXXXX XXXXXXXX XXXXX
President
THUS DONE AND SIGNED by the LESSEE at St. Xxxx Xxxxxx, Louisiana, on the
15th day of October, 1987 in the presence of the undersigned competent
witnesses.
WITNESSES: LAND TREATMENT SYSTEMS, INC.
/s/ illegible BY /s/ Xxxx X. Xxxx
------------------------------ --------------------------------
XXXX X. XXXX PRESIDENT
/s/ illegible BY /s/ Xxxx X. Xxxx
------------------------------ --------------------------------
XXXX X. XXXX INDIVIDUALLY
-15-
Xxxxxxx Island
Landform Facility
AMENDMENT TO LEASE AGREEMENT UNITED STATES OF AMERICA
BY: XXXXXX XXXXXXXX, INC. STATE OF LOUISIANA
TO: LAND TREATMENT SYSTEMS, INC. PARISH OF ST. XXXX
THIS CONTRACT OF LEASE, made and entered into by and between:
XXXXXX XXXXXXXX, INC., a Louisiana corporation, domiciled in St. Xxxx
Xxxxxx, Louisiana, herein represented by and appearing through XXXXXXX XXXXXXXX
XXXXX, its President, and XXXXXX X. XXXXXXXX, XX., its Vice-President, pursuant
to the resolution attached hereto and made a part hereof, whose mailing address
is (for purposes of any payments and notices required hereunder) P. O. Xxx 000,
Xxxxxx Xxxx, Xx. Xxxx Xxxxxx, Xxxxxxxxx 00000, hereinafter referred to as
"LESSOR", and
LAND TREATMENT SYSTEMS, INC., a Louisiana corporation, herein represented
by Xxxx Xxxx', its President, by virtue of a Resolution of the Board of
Directors attached hereto, which mailing address is P. O. Xxx 0000, Xxxxxxxxx,
Xxxxxxxxx 00000, hereinafter referred to as "LESSEE",
THIS AMENDMENT TO LEASE AGREEMENT supplements and amends the LEASE
AGREEMENT executed by the parties hereto on October 13, 1987, in the following
particulars, to wit:
1. The parties hereto acknowledge that they previously entered into a
LEASE AGREEMENT on the 13th day of October, 1987, which LEASE AGREEMENT is
recorded in the office of records of St. Xxxx Xxxxxx in Book 30-T of Conveyance,
page 299 as No. 220,730.
2. Upon the execution by LESSOR of this AMENDMENT TO LEASE AGREEMENT,
LESSEE does hereby agree to pay to LESSOR the sum of THIRTY THOUSAND AND 00/100
DOLLARS ($30,000.00) as additional consideration, payable in full at execution.
3. The parties execute this AMENDMENT TO LEASE AGREEMENT for the purpose
of supplementing and amending paragraphs 4 and 5 of the original LEASE AGREEMENT
described in Paragraph 1 hereinabove so that said paragraph 4 and 5 of the
original LEASE AGREEMENT shall read as follows, to wit:
4.
This lease is made for and in consideration of the covenants herein
contained and rental payments as follows:
(A) an annual rental to be paid by LESSEE to LESSOR during the primary
term and any extensions or renewals thereof of TWO THOUSAND FOUR HUNDRED DOLLARS
AND NO/100 ($2,400.00) per annum due on the 30th day of October of each year,
and
(B) Effective April 1, 1991, LESSEE shall commence monthly rental payments
for the acreage portion of the entire leased property that is to be utilized in
the treatment of non-hazardous oilfield waste in accordance with the schedule
set forth herein below.
LESSOR and LESSEE agree that for purposes of calculating the total monthly
rental due by LESSEE to LESSOR as provided in paragraph 4(B), beginning with the
April 1, 1991 rental payment, and for the remaining life of this lease, one
hundred thirty (130) acres will be used as the acreage factor regardless of
whether such acreage total has been actually placed into usage by LESSEE for
non-hazardous waste treatment.
YEAR ACRES RATE ACRES RATE MONTHLY PAYMENT
---- ----- ---- ----- ---- ---------------
1st Option
----------
10/1/90 to
9/30/93 95 @ $60 + 35 @ $100 = $ 9,245.00
2nd Option
----------
10/1/93 to
9/30/96 95 @ $65 + 35 @ $105 = $ 9,895.00
3rd Option
----------
10/1/96 to
9/30/99 95 @ $70 + 35 @ $110 = $10,545.00
4th Option
----------
10/1/99 to
9/30/2002 95 @ $75 + 35 @ $115 = $11,195.00
5th Option
----------
10/1/2002 to
9/30/2005 95 @ $100 + 35 @ $120 = $13,745.00
6th Option
----------
10/1/2005 to
9/30/2008 95 @ $115 + 35 @ $135 = $15,695.00
7th Option
----------
10/1/2008 to
9/30/2011 95 @ $130 + 35 @ $150 = $17,645.00
8th Option
----------
10/1/2011 to
9/30/2014 95 @ $145 + 35 @ $165 = $19,595.00
9th Option
----------
10/1/2014 to
9/30/2017 95 @ $160 + 35 @ $180 = $21,545.00
10th Option
----------
10/1/2017 to
9/30/2020 95 @ $175 + 35 @ $195 = $23,495.00
LESSOR and LESSEE also acknowledge that through March 31, 1991, the rental
rates and acreage calculations as set forth in paragraph 4 of the October 13,
1987 LEASE AGREEMENT shall remain in effect.
(C) FORTH-FIVE AND NO/100 DOLLARS ($45.00) per month, due and payable on
the 1st day of each month commencing October 1, 1987 and continuing on the 1st
day of each month thereafter, which is designated as rental for the structure
located on the leased premises and used as an office for the non-hazardous waste
operation on the leased premises.
All of the rental payments provided in this lease shall be made in the name
of "XXXXXX XXXXXXXX, INC." and paid in such name at P. O. Xxx 000, Xxxxxx Xxxx,
Xx. Xxxx Xxxxxx, Xxxxxxxxx 00000 unless LESSEE is notified in writing of a
change of address.
5.
At the expiration of the primary term of this lease, LESSEE shall have the
prior right and option to extend this lease for ten (10) consecutive three (3)
year terms. The options shall be automatically exercised by LESSEE and it shall
be bound by the terms for each of the three (3) year option periods unless
LESSEE notifies LESSOR in writing that it does not intend to exercise the option
as provided below. The rentals due during the option periods are in accordance
with Section 4(B) hereinabove.
LESSEE shall be conclusively presumed to have automatically accepted the
right of option next exercisable unless LESSEE notifies LESSOR of LESSEE's
rejection to the next option and
hence termination of the lease at the conclusion of the then current term which
notice shall be mailed to LESSOR at its address as provided herein (or at such
other place as LESSOR may designate in writing) through the United States Mail
either registered or certified, not later than thirty (30) days prior to the
expiration of the primary term of this lease for exercising the first option and
thirty (30) days prior to the expiration of the then current term of this lease
in the case of all other options, with a copy of the letter of said rejection of
the right of option to be recorded (if requested by LESSOR) in the Conveyance
Records of St. Xxxx Xxxxxx, Louisiana. The option(s) granted herein shall be
void if thirty (30) days prior to the expiration of the then current lease term,
LESSEE (i) is in default after notice of same from LESSOR as provided in this
lease or (ii) in fact does not properly exercise the previous option(s) granted
it herein.
4. The parties further agree that the provisions of paragraph G on page
14 of the October 13, 1987 LEASE AGREEMENT requiring LESSEE to furnish to LESSOR
letters of credit equal to projected rents are hereby waived, rescinded, and any
claims for any past or future failure to so furnish are waived, relinquished,
and released.
5. It is further agreed by LESSOR and LESSEE that in the event LESSEE
merges with, or becomes owned by, Sanifill, Inc. or any of its subsidiaries or
affiliates, and provided that Sanifill, Inc. or any such subsidiary or affiliate
assumes the place and stead of LAND TREATMENT SYSTEMS, INC. as LESSEE, in that
event LESSOR agrees to fully release and discharge XXXX X. XXXX' as a personal
guarantor of LESSEE's lease obligations under the original lease and any
amendments thereto.
THUS DONE AND SIGNED by the LESSOR at St. Xxxx Xxxxxx, Louisiana, on this
25th day of March, 1991, in the presence of the undersigned competent witnesses.
WITNESSES: XXXXXX XXXXXXXX, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
------------------------------ -----------------------------------
XXXXXX X. XXXXXXXX, XX.
Vice President
/s/ Xxxx X. Xxxxxxxx XXXXXX XXXXXXXX, INC.
------------------------------
By: /s/ Xxxxxxx Xxxxxxxx Xxxxx
-----------------------------------
XXXXXXX XXXXXXXX XXXXX
President
THUS DONE AND SIGNED by the LESSEE at St. Xxxx Xxxxxx, Louisiana, on the
25th day of March, 1991, in the presence of the undersigned competent witnesses.
WITNESSES: LAND TREATMENT SYSTEMS, INC.
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxx X. Xxxx'
------------------------------ -----------------------------------
XXXX X. XXXX', President
Xxxx X. Xxxxxxxx
------------------------------
/s/ Xxxx X. Xxxx'
-----------------------------------
XXXX X. XXXX', Individually
EXHIBIT C
[MAP]
