LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made as of the 27th day of August, 1991, by and
between XXXXXX XXXXXXX, XX. ("Lessor") , CLEAN EARTH OF NEW CASTLE, INC., a
Delaware corporation ("Lessee"), and CLEAN EARTH, INC, a Delaware corporation
("Clean Earth").
WITNESSETH
WHEREAS, Lessor is the owner of certain real property consisting of
approximately 7.5 acres of land located at 00 Xxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxx
(the "Property"), as more particularly described in Exhibit A attached hereto
and incorporated herein by reference; and
WHEREAS, Lessee desires to lease the property and improvements located thereon
from Lessor subject to the terms and conditions contained herein.
Whereas, Clean Earth is the parent company of Lessee.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which
is hereby acknowledged, and in consideration of the mutual covenants and
promises contained herein, and intending to be legally bound hereby, the
parties agree as follows:
1. Demised Premises. Lessor shall lease to Lessee, and Lessee shall lease
from Lessor, the Property.
2. Term. The term of this Lease is for seven years beginning on August 28,
1991.
3. Use of the Property. Lessee shall use the Property for the business of a
non-hazardous soil remediation facility, as defined as of the date hereof, and
those uses reasonably incidental thereto. Lessee's use shall be in strict
compliance with all applicable laws and permits. No other uses shall be
permitted without the express written consent of Lessor, which consent may be
withheld in Lessor's sole discretion. Other uses which adversely impact the
volume of Lessee's soil remediation business of Tenant shall require a revised
rental formula.
4. Rental. Lessee agrees to pay Lessor monthly at the rate of $1.00 per ton
of contaminated material accepted on the Property for the purpose of
remediation, due within twenty-five (25) days of the last day of each calendar
month (to be accompanied by a computer generated report or other documentation
acceptable to Lessor and certified annually by a public accountant) ("Monthly
Rent Payment"). By way of example, payments for all material accepted during
the month of March, 1992 shall be due on or by April 25, 1992. A minimum
annual rent of 650,000 shall be paid commencing with the first year of the
initial lease term if Lessee is legally able to operate a larger plant for at
least three months of the first year, otherwise the guaranteed minimum rent
shall commence with the second year of the initial lease term. Should the rent
paid during any applicable lease year be less than the said minimum, the
amount of such deficiency shall be paid to Lessor with the first monthly
payment due Lessor in the immediately following lease year (or with the final
payment due upon expiration of this Lease). In addition, Lessee shall pay any
and all real estate taxes attributable to assets owned or improvements made by
Lessee. Lessor shall pay any and all real estate taxes attributable to the
land, and any and all real estate taxes attributable to buildings,
improvements and assets placed on the Property by Lessor during his occupancy
of Parcel "B" and/or Parcel "C". Real estate taxes shall be paid on or before
the due date; provided that the party responsible to pay, may, at its own
expense, contest the imposition or amount of any real estate tax in the manner
provided by law and provided further that such party shall pay the full amount
of any such tax so determined to be due, plus any penalty or interest thereon,
pursuant to the final resolution of any such contest. In addition, Lessee
agrees to pay Lessor upon the execution of this Lease Five Thousand Dollars
($5,000) as a deposit to be refunded without interest upon the expiration or
termination of the Lease or credited with the final lease payment.
5. Records: Net Worth. Lessee and Clean Earth, shall maintain a
consolidated net-worth of $500,000.00 throughout the term of this Lease, as
renewed from time to time Lessee and Clean Earth shall provide Lessor with
copies of their annual balance sheet, certified by a national independent
accounting firm, at such company's expense and Lessee shall provide a
quarterly current internally prepared balance sheet certified by its chief
financial and executive officers.
6. Option to Renew. Provided that Lessee is not in material default under
any terms of this Lease, Lessee shall have the option to renew at the end of
the initial term for an additional term of five years, and shall have a
similar right of renewal for two additional five-year renewal terms. This
right of renewal shall be subject to the right and option of Lessor requiring
Lessee to purchase the Property as Lessor's right is described in the
Paragraph next below. In order to exercise any renewal option, Lessee shall
give written notice to Lessor of Lessee's intention to renew at least six (6)
months prior to the expiration of the then current term.
7. Option to Purchase. Within three (3) months of receipt of notice of
Lessee's intent to renew this Lease for an additional term, as described in
the Paragraph above, Lessor shall have the superior right and option to
require Lessee at the conclusion of the then current term to purchase the
Property or, should Lessee fail to do so, to vacate the premises at the end of
the then existing term, subject to Paragraph 22. The purchase price for the
Property shall be $100,000 per acre during the first year of the first lease
renewal term, and shall escalate each year thereafter in accordance with the
annual percentage increase in the Consumer Price Index (as defined below).
Closing for such purchase shall take place on or before the last day of the
then current lease term. Lessee shall pay for the Property at closing by cash,
certified check or wire transfer (at Lessor's option) to Lessor. At closing,
Lessor shall provide good and marketable title, subject to all existing
easements and restrictions of record, by deed of special warranty such as will
be insured at regular rates by a title insurer duly authorized to issue
insurance in Delaware. In the event Lessor cannot provide such title (for any
reason other than the fault of Lessee), Lessee shall have the option of taking
such title as Lessor can give without reduction in price, declaring this Lease
null and void with no further rights of any kind under this Lease, or
continuing in possession of the Property as Lessee in the same manner as if
Lessor had not exercised its option to require Lessee to purchase the Property
until such time an Lessor can give good and marketable title (except for any
reason the fault of Lessee) in which case, Lessor can exercise its option and
closing shall occur within three months receipt of notice from Lessor to
Lessee that good title can now be given or Lessee shall then vacate the
property subject to Paragraph 22.
"Consumer Price Index" means the Consumer Price Index for Urban Wage Earners
and Clerical Workers (Revised Series) (CPI-W) All Items, (1967 equals 100) of
the United States Bureau of Labor Statistics. If the Consumer Price Index
shall become unavailable to the public because publication is discontinued, or
otherwise, the parties will substitute therefor the closest successor index as
identified by the United States Department of Labor, or if no such successor
exists, a comparable index based upon changes in the cost of living or
purchasing power of the consumer dollar published by any other governmental
agency or, if no such index shall be available, then a comparable index
published by a major bank or other financial institution or by a university or
a recognized financial publisher.
8. Portion of Property Retained by Lessor. Lessor shall retain possession
of a portion of the Property identified as Parcel "B" on the attached Exhibit
B and currently utilized by Lessor's salvage business, "so as to provide
Lessor additional time for the orderly termination or relocation of his
business and the removal of fixtures, equipment, inventory, etc. Lessor will
maintain Parcel "B" in compliance with all laws and regulations during the
period of his occupancy. Lessor shall have six months from the date hereof to
vacate Parcel "B", and the existing single family resident structure on the
Property may either be demolished and removed by Lessee, or left intact for
Lessee's use, at Lessee's option.
Lessor shall retain possession of a portion of the Property identified as
Parcel "C" on the attached Exhibit A. Lessor and Lessee shall execute a
separate sublease with respect to this Parcel "C".
9. Utilities. Lessee shall be responsible to pay for all utilities used or
consumed by Lessee. Lessor shall be responsible to pay for any utilities used
or consumed by Lessor. Lessee shall be responsible for acquiring, and hereby
indemnifies Lessor with respect to the cost of, any changes or improvements to
the utilities and their connections necessary for any expansion of Lessee's
business or any improvements to the Property by Lessee.
10. Improvements. Lessee may make any lawful improvements to the Property
without Lessor's prior written consent, provided that any improvements which
may affect a permanent change to the Property itself (including, but not
limited to, the spreading of dirt or soil other than on a temporary basis or
other than in the course of Lessee's normal business operations) shall not be
made without Lessor's prior written consent, which consent will not be
unreasonably withheld. In those circumstances requiring the consent of Lessor,
Lessee shall provide copies of all improvement plans (i.e., architectural or
construction drawings, appropriate environmental information, site plans,
etc.) to Lessor at least ninety (90) days, or such shorter period as may be
necessitated by any governmental requirements, prior to any actual
construction activity together with the name of the proposed general
contractor and construction manager (if any). Lessee shall also provide an
estimate of construction costs, and a construction schedule (including
proposed starting and ending date). Lessor shall have thirty days, or such
shorter period as may be necessitated by any governmental requirements, in
which to either approve or disapprove the intended improvements; Lessor's
failure to so act constitutes approval. All improvements made shall remain the
property of Lessee at the termination of this Lease. Lessee shall not commit
waste with respect to the Property and any improvements of Lessor thereon.
Lessor's consent is specifically not required for the erection of the larger,
70 ton per hour soil remediation plant and incidental facilities to be placed
on the Property by Lessee. Lessor shall assist Lessee in applying for and
obtaining any zoning changes or variance, use, building or other permits
necessary for the construction and/or operation of buildings or other
improvements on the Property. Lessee shall use good faith efforts to provide
Lessor with notice of any improvement costing in excess of $20,000.
11. Permits. Concurrent with the execution of this Lease, Lessor will
provide Lessee with copies of all existing building, use, occupancy, road, and
other permits relating in any way to Lessee's proposed use or occupancy of the
Property, without regard to Lessor's uses of Panel C. Lessee shall promptly
provide to Lessor copies of all permit applications made and all permits
received relating in any way to the Property or the use thereof as such arise
from time to time. Each party shall also provide the other with copies of any
notice of permit violation, suspension, or revocation or any notice of any
statute or regulation violation relating to the use of the Property (including
parcels B or C) within five (5) days' receipt of such notice. If such notice
is verbal or oral, that party shall provide a written summary of such notice
to the other within five (5) days.
12. Insurance. Lessee shall maintain in full force and effect during the
term of this Lease, or any renewal or extension thereof, general public
liability insurance in an amount not less than $1 million for any one
occurrence and having an annual aggregate not less than $1 million and
pollution liability insurance in an amount not less than $1 million for any
one occurrence and having an annual aggregate of not less than $1 million. The
limits of insurance shall be increased at the end of each term and prior to
each renewal term by an amount not less than the percentage increase in the
CPI (as previously defined) for the preceding term; unless, in the event such
coverage is not generally commercially available at such higher amount, then
the highest amount so available; and, if such insurance is not generally
commercially available, then Lessor shall have the option to accept such
coverage as Lessee can supply or require Lessee to purchase the Property in
accordance with Paragraph 7. For purposes of this Paragraph, insurance
coverage shall be deemed not "generally commercially available" if the premium
exceeds ten percent of the face amount of the coverage for reasons unrelated
to the past history or record of Lessee or any of Lessee's affiliates. The
policy (or policies) shall name Lessor as additional insured, and shall be
carried by an insurer authorized to do business in the State of Delaware.
Appropriate certificates of insurance shall be furnished to Lessor to evidence
the issuance of such policies and their coverage. The policy shall provide
that Lessor shall be notified in the event of any cancellation or non-renewals
of such policy (or policies). Each party shall provide notification to the
other in writing, as soon as possible, but in no case later than thirty days
of any claim, demand or action upon either party arising out of or in, or
occurring on or about the Property.
13. Surrender of Premises. Lessee shall, upon the expiration, termination or
cancellation of this Lease, surrender the Property to Lessor in the same
condition as existed at the time of execution of this Lease, reasonable wear
and tear as related to Lessee's use and changes in condition due to acts of,
or the responsibility of, Lessor and his agents excepted. Lessor may direct
Lessee to remove Lessee's property (including but not limited to personal
property and buildings and improvements) from the property upon the expiration
or termination of the Lease. Any property left on the Property by Lessee shall
be considered abandoned and the costs of such removal, if removed by Lessor
within six months of Lessee's surrender, shall be charged to Lessee.
14. Liability. Lessor, his agents, and employees, shall not be liable for
any damage or injury to Lessee, its officers, agents, or employees, or to any
third party coming upon the Property in connection with Lessee's use of the
premises, or for any damage or injury to any goods, chattels, or other
property of Lessee, its officers, agents, or employees caused other than by
the act or omission of Lessor, his agents, employees, heir. or assigns, or any
breach of this Lease by Lessor, including his warranties and representations
herein.
15. Inspection. Lessor, or his designee, shall have the right to enter the
Property upon prior notice during business hour" to ensure compliance with the
terms of this Lease; provided, however, that such action will not interfere
unreasonably with the conduct of Lessee's business.
16. Fire/Casualty. Lessee's obligation (including minimum rent payments)
shall in no way be abated as the result of fire or other casualty to the
Property, unless caused by any act or omission of Lessor, his agents,
employees, heirs or assigns, or any breach of this Lease by Lessor including
his representations and warranties herein.
17. Cancellation/Termination. This Lease shall be subject to immediate
cancellation by Lessor in the event Lessee shall:
(a) be in arrears in the payment of the whole or any part of any amount due
hereunder for a period of fifteen (15) days after receipt of written notice
from Lessor or its designee that such payments are due;
(b) be in default in the performance of any covenant, term or condition of
this Lease and such default continues for a period of thirty (30) days after
receipt from Lessor, or its designee, of written notice of such default;
however, if it is not reasonably possible to cure such default within thirty
(30) days, then the time period for curing the default shall be extended to
provide that the default is cured as expeditiously as practicable by actions
undertaken diligently and in good faith;
(c) file a voluntary petition in bankruptcy or any petition for relief under
any section of the bankruptcy laws of the United States; make any assignment
for the benefit of creditors; be the subject of an involuntary petition in
bankruptcy which is not dismissed within 120 days of its filing; have
appointed a receiver, custodian or trustee for Lessee by any court, or sell
any of its interests under any execution process or other legal process as
ordered by any court.
In the event of breach of this Lease as enumerated hereinabove by Lessee, but
no sooner than the aforementioned cure periods applicable to any such breach,
Lessor may, in addition to all other remedies available at law or equity,
recover possession of the Property and remove Lessee's effects without being
deemed guilty of trespass. Notwithstanding the recovery of possession by
Lessor as a result of Lessee's breach, Lessee shall remain liable to Lessor
for all amounts owing under this Lease payable to the expiration date of the
then current term, or any subsequent term for which Lessee has exercised any
option it may be granted by Lessor. Failure of Lessor to recover the Property
upon the default of Lessee shall not serve to bar or destroy the right of
Lessor to recover the Property or to otherwise exercise any and all of its
rights at law or equity by reason of any subsequent violation of the terms of
this Lease. Lessor shall use his best efforts to mitigate damages by reletting
the Property.
18. Eminent Domain. If all or any part of the Property shall be taken by any
public authority under the power of eminent domain, the term of this Lease
shall cease as to that portion taken, on the date of possession. If such
condemnation and taking prevents or materially interferes with the continuance
of Lessee's business, then from that day, Lessee shall have the right either
to cancel this Lease and declare it null and void, or to continue in
possession of the remainder of the Property under the terms herein. Lessee
shall notify Lessor within ninety (90) days after receipt of notice of any
taxing, of its intention to cancel this Lease; otherwise, the Lease shall
continue in full force and effect on the same terms and conditions herein
provided as to the portion of the Property not taken. The foregoing provisions
of this Paragraph notwithstanding, Lessee, upon receipt of any notice of
taking, may elect to contest such notice by all appropriate lawful means, at
Lessee's expense, and the commencement of the ninety (90) day period
prescribed in the preceding sentence shall be suspended until the date such
contest is resolved and upholds the power of any such public authority to make
such taking, and the extent of the property taken. Lessor shall provide Lessee
a copy of any notice of taking within ten (10) days of Lessor's receipt
thereof, and cooperate as reasonably necessary with Lessee in any contest of
ouch notice undertaken by Lessee. Lessee shall not have the right to seeing or
receive and portion of any eminent domain award for taking of any portion of
the Property which is not material to the use of Property by Lessee.
19. Notice. Any notice required herein shall be given by registered or
certified mail, postage prepaid, addressed, if to Lessor, at:
Xxxxxx Xxxxxxx, Xx.
000 Xxxxxxxxx Xxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
with a copy to Lessor's counsel:
Xxxxx X. Xxxxxx, Esquire
Duane, Morris & Heckscher
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
and if to Lessee, at:
Clean Earth of New Castle, Inc.
00 Xxxxx Xxxx
Xxx Xxxxxx, XX 00000
with a copy to Lessee's counsel:
W. Xxxxx Xxxxxxx, Esquire
Laws, Xxxxxxx and Piscarick
0000 X. Xxxxxx Xx.
Xxxxxxxxxx, Xx 00000
Notice is considered to have been given upon the date mailed; the time within
which any action must be taken by Lessor or Lessee in response to any notice
shall commence to run on the date such notice in actually received by such
party.
20. Holdover Tenancy. In the event that Lessee continues in possession of
the Property beyond the expiration, cancellation or termination of this Lease,
or any renewals or extensions thereof, without Lessor's consent, such tenancy
shall be presumed to be a tenancy from month-to-month and Lessee shall pay
rent equal to 1/2 times the monthly rent then pertaining plus any charges then
owing, but nothing in this Paragraph shall be construed as consent by Lessor
to such possession of the Property by Lessee beyond the term of this Lease. If
the notice prescribed by Paragraph 6 is not given, and Lessee holds possession
of the premises after the expiration of the initial term of this Lease, or any
renewal or extension thereof, with Lessor's written consent, a month-to-month
tenancy shall be created at a rent equal to the monthly rent and other charges
then payable, until such time as a new contract between the parties has been
executed or negotiations for ouch have ceased.
21. Hazardous Substances and Materials.
(a) Lessor represents and warrants to Lessee that there are no hazardous
substances, on, under or arising from the Property.
(b) During the term of this Lease, neither party shall suffer, allow, permit
or cause:
(i) The installation of any underground storage tanks for the purpose of
holding petroleum products or hazardous substances either on the Property; and
(ii) The accumulation of tires, spent batteries, debris or other solid wastes
on the Property except as may be lawfully permitted in the course of Lessee's
soil remediation business and rubbish placed in designated containers
scheduled for normal, scheduled disposal in accordance with all applicable
law; and
(iii) The generation, accumulation, storage, possession, release or threat of
release of "hazardous substances", "pollutants", "hazardous waste" or "toxic
materials" as those terms are used in Comprehensive Environmental Response
Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. Sections 9601,
et seq., as amended, the Toxic Substance Control Act (or any regulations
promulgated under the foregoing) or any other present or future federal, state
or local law, ordinance, rule or regulation, including extremely flammable
substances, explosives, radioactive materials and petroleum/petroleum products
(collectively, "Hazardous Substances"); provided, however, the foregoing
prohibition shall not be applicable to (i) normal and reasonable amounts of
cleaning and pest control supplies reasonably necessary for maintenance of the
premises so long as such materials are properly, safely, and lawfully stored
and used by Lessee or (ii) de minimis amounts of leaked or spilled petroleum
products from the normal operation of motor vehicles; and (iii) as may be
lawfully permitted in the course of Lessee's business.
(iv) The use of Property for any industrial, manufacturing or landfill
purposes except as expressly permitted by this Lease.
(c) Each party shall notify the other immediately upon learning that any
duty of either described in subparagraph (b) of this Paragraph has been
violated, that there has been a release, discharge or disposal of any
Hazardous Substance on a part of the Property, that radon gas or urea
formaldehyde has been detected on or in the Property, or that the Property is
subject to any third party claim or action, or threat thereof, because of any
environmental condition in or originating from the Property or arising in
connection with Lessor or Lessee's operations at the Property. Each party
shall promptly provide the other with copies. of all correspondence to or from
third parties regarding such claims or action. or regarding environmental
conditions in or originating from either party's operations on the Property.
In the event of a release, leaking, spilling or deposit (collectively "leak")
of any Hazardous Substance on, in or from the Property caused by Lessor or
Lessee, such party shall immediately cause complete remediation of such leak.
Lessor shall have the right, but not the obligation except as otherwise set
forth in this Paragraph, to enter the Property and remediate any environmental
condition on the Property to comply with all laws, regulations and ordinances
during which time Lessee shall not be entitled to any abatement of rent,
except for abatement for environmental conditions caused by Lessor (Lessor
shall seek to cause minimal disruption to Lessee's business). Lessor and
Lessee shall be responsible to remediate any environmental conditions
occurring on that portion of the Property occupied by each regardless of
whether such conditions are caused by third parties or acts of God, provided,
however, that Lessor shall be responsible to remediate any environmental
conditions caused by acts or conditions off the Property such as but not
limited to off-property ground water seepage or migration.
At the expiration or sooner termination hereof, Lessee shall return the
Property to Lessor in substantially the same condition as existed on the date
of commencement hereof or the date Lessee took possession of the Property,
whichever is earlier, free of any Hazardous Substance in, on, or from the
Property to the extent of Lessee's obligation under this Paragraph.
(d) Lessee shall promptly provide to Lessor copies of all quarterly
monitoring well reports and other environmental monitoring data received or
obtained by Lessee.
22. Security for Environmental Obligations. As security for Lessee's
environmental obligations hereunder, Lessee's agrees that:
(a) Lessee shall not in any event remove its soil remediation plant from the
Property upon the expiration or termination of this Lease until two (2) months
thereafter, except that Lessees will remove same as soon as practical upon
Lessor's request to do so at an earlier time;
(b) If Lessor advises Lessee, by a notice setting forth its full reasons
with supporting detail, at any time prior to expiration of the time in (a)
above that Lessor has reason to believe that Lessee is responsible for either
the cause or remediation of an environmental condition, then Lessee shall not
remove the plant until such time as Lessor advises Lessee, or a court of
competent Jurisdiction determines, that Lessee's responsibility as to such
condition has been satisfied or determined not to exist.
(c) Following Lessee's satisfaction of its remedial or other obligations
under Paragraph (b) above, Lessee shall then have two (2) months to remove its
facilities from the Property. During the periods identified in Paragraphs (a),
(b) and (c) hereof, Lessee may also dismantle but shall not operate the
facilities nor be responsible for rental under the Lease; provided however
this clause does not diminish in any respect any claim for damages that Lessor
may have against Lessee for any environmental condition on the Property.
(d) Prior to one (1) year after expiration or termination of the Lease,
Lessee and Clean Earth shall maintain the net worth requirements set forth in
Paragraph 5 hereof. At the end of such time, such obligation shall expire
unless Lessor advises Lessee, by a notice setting forth its full reasons with
supporting detail, prior to the expiration of such one year time that Lessor
has reason to believe that an environmental condition exists on the Property
caused by Lessee or for which it is responsible to remediate. If Lessor gives
such notice, Lessee and Clean Earth must continue such net worth until Lessor
gives notice, or a court of competent Jurisdiction determines, that Lessee's
responsibility as to such condition has been satisfied or has been determined
not to exist.
(e) Lessee may satisfy its obligations under Paragraph (c) above, and
thereafter remove its plant, by providing a letter of credit in form and
substance satisfactory to Lessor, or cash collateral in the amount of $500,000
pending the resolution of such environmental condition.
(f) Lessee may satisfy its obligations under Paragraph (d) above, and
thereafter diminish its net worth by providing guarantees or indemnities by
parties affiliated with Lessee, with such documents being satisfactory in form
and substance to Lessor and with such guaranteeing and indemnifying parties
being financially responsible to Lessor's reasonable satisfaction.
(g) Lessee acknowledges that the provisions of this Paragraph are important
to Lessor, are not remediable by the award of monetary damages and that Lessor
is entitled to specific performance and injunctive relief to obtain the
benefit of these provisions.
23. Best Efforts And Good Faith. Recognizing that the rental depends upon
the success of Lessee's business, Lessee shall operate its business in good
faith using commercially reasonable best efforts.
24. No Assignment/Sublease. Lessee shall not assign, sublet or otherwise
transfer or encumber all or any portion of its interest in this Lease except
with the prior written consent of Lessor, which consent may be withheld in
Lessor's sole discretion.
25. Miscellaneous.
(a) Entire Agreement. This Lease constitutes the entire agreement between
the parties and may only be modified by a writing signed by all of the
parties.
(b) Attorney's Fees. Subject to the applicable terms of the set-off provisions
of this Lease, in any action brought by either party for the enforcement of
the obligations of the other hereunder, the prevailing party shall be entitled
to recover reasonable attorney's fees to the fullest extent permitted by law.
(c) Authority. Each of the parties represents and warrants to the other that
it is fully authorized to enter into this Lease and has taken all necessary
steps and received all requisite approvals necessary to enter into this Lease.
(d) Binding on Successors. This Lease shall benefit and bind the parties
hereto, their respective heirs, personal representatives, successors and
assigns.
(e) Governing Law. This Lease shall be governed and construed by the laws of
the State of Delaware.
(f) Headings. Paragraph headings are inserted for convenience only and shall
not be considered in interpreting and construing this Lease.
(g) Severability. If any term or provision, or any portion thereof, of this
Lease is declared invalid or unenforceable for any reason, the remainder of
this Lease shall not be affected thereby and shall continue to be valid and
enforceable to the fullest extent permitted by law.
(h) Relationship of Parties. Neither party shall act, represent or attempt to
act or represent itself, directly or indirectly or by implication, as agent of
the other. Nothing in this Lease shall be deemed to create any relationship
of principal and agent between the parties.
(i) Construction of Lease. The parties represent that they have discussed,
bargained and negotiated the terms of this Lease and this Lease shall not be
construed against one party or the other merely because one party may have
initially drafted this Lease.
(j) No Conflicts. Each of the parties represents and warrants to the other
that this Lease and the entry into this Lease by the warranting party does not
conflict with any other agreements to which it is a party or by which it is
bound.
(k) No Waiver. Neither the failure of Lessor to insist upon the strict
performance of any of the terms, conditions and covenants herein, nor the
acceptance of any rent or partial rent, shall be deemed a waiver of any rights
or remedies available to Lessor, and such failure or acceptance shall not be
deemed a waiver of any subsequent or continuing breach or default in the
terms, conditions and covenants herein contained.
26. Representations and Warranties of Lessor. Lessor represents and warrants
that as of the date hereof: he has sole fee simple ownership of the Property;
he has complied with all material laws, rules, regulations, statutes,
ordinances, permits and other instruments affecting the Property or his use
thereof during the period of his ownership, and will continue to do so; there
are no actions, suits, or proceedings pending or threatened against Lessor or
affecting the Property at law or in equity or before any federal, state,
municipal, or other governmental agency or instrumentality, domestic or
foreign, nor is Lessor aware of any facts that might result in any such suit
or proceeding; all documents and records provided to Lessee by Lessor,
heretofore or hereafter, concerning the Property, are true and complete to the
best of Lessor's knowledge with respect to the information contained therein;
Lessor has in all material respects duly filed all federal, state and local
tax returns required to be filed by him and has paid all federal, state and
local taxes required to be paid with respect to the periods covered by such
returns, and Lessor has not had any tax deficiencies proposed or assessed
against him and has not executed any waiver of statute of limitations on the
assessment or collection of any tax; there are currently natural gas,
electricity, public water, and on-site sewage cervices available to the
Property with capacities adequate for the conduct of the soil remediation
business heretofore conducted on the Property by Atlantic Thermal Soil
Remediation, inc., and Lessor has no reason to believe Braid utility services
will be interrupted, curtailed or otherwise not remain available to Lessee
during the term of this Lease and any renewals thereof; and there are no
underground storage tanks on the Property.
27. No Brokers. Lessor and Lessee represent to one another that the
introduction of Lessor and Lessee and all negotiations relative to this Lease
have been effected and carried on directly between the parties without the
intervention of any broker, finder or other person.
28. Mutual Indemnification.
(a) Lessee shall indemnify and hold harmless Lessor (as well as Lessor's
employees, partners, servants, agents, heirs and assigns) (the indemnified
parties) of and from all liability (Joint or several and including strict
liabilities), claims, actions, penalties, demands, costs, damages and expenses
(including without limitation legal fees), remediation and response costs,
remediation plan preparation costs and any continuing monitoring or closure
costs, incurred or suffered by any indemnified party or asserted by a third
party against any indemnified party, resulting from: (1) any materially
inaccurate representation made by Lessee in or under this Lease; (2) material
breach of any of the warranties made by Lessee in or under this Lease; (3)
material breach or default in the performance by Lessee of any of the
covenants to be performed by it under this Lease; (4) any debts, liabilities
or obligations of Lessee, whether accrued, absolute, contingent or otherwise,
due or to become due; (5) the conduct of Lessee's business; (6) Lessee's use
or possession of the Property; (7) any past, present or future act or omission
of Lessee whether or not such act or omission constituted or constitutes a
violation of law, regulation, ordinance, permit, license or otherwise; this
indemnification provision is to be construed liberally in favor of Lessor and
is expressly intended to include all liability (joint or several and including
strict liabilities), claims, actions, penalties, demands, costs, damages and
expenses (including without limitation legal fees), remediation and response
costs, remediation plan preparation costs and any continuing monitoring or
closure costs, incurred or suffered by any indemnified party, resulting from
any act or omission of Lessee.
(b) Lessor shall indemnify and hold harmless Lessee (as well as Lessee's
officers, directors, employees, shareholders, agents, servants, successors and
assigns) (the "indemnified parties") of and from all liability (joint or
several and including strict liabilities), claims, actions, penalties,
demands, costs, damages and expenses (including without limitation legal
fees), remediation and response costs, remediation plan preparation costs and
any continuing monitoring or closure costs, incurred or offered by any
indemnified party or asserted by a third party against any indemnified party,
resulting from: (1) any materially inaccurate representation made by Lessor in
or under this Lease; (2) material breach of any of the warranties made by
Lessor in or under this Lease; (3) material breach or default in the
performance by Lessor of any of the covenants to be performed by it under this
Lease; (4) any debts, liabilities or obligations of Lessor whether accrued,
absolute, contingent or otherwise, due or to become due, except those
obligations specifically assumed by Lessee in this Lease or any documents
executed pursuant hereto; (5) the conduct of Lessor'- business; (6) the
condition of the Property except for conditions caused by Lessee; (7) Lessor's
use or possession of any portion of the Property; (8) any past, present or
future act or omission of Lessor whether or not such act or omission
constituted or constitutes a violation of law, regulation, ordinance, permit,
license or otherwise; this indemnification provision $s to be construed
liberally in favor of Lessee and is expressly intended to include all
liability (joint or several and including strict liabilities), claims,
actions, penalties, demands, costs, damages and expenses (including without
limitation legal fees), remediation and response costs, remediation plan
preparation costs and any continuing monitoring or closure costs incurred or
suffered by any indemnif$ed party or asserted by a third party against any
indemnified party, resulting from any act or omission of Lessor or the
condition of the property, except for conditions caused by Lessee.
(c) Notice and Defense. The indemnified party shall notify the indemnifying
party promptly in writing of any claim for which the indemnified party intends
to seek indemnification hereunder, stating, to the extent known, the nature
and basis of such claim and the amount thereof. The indemnifying party
thereafter shall have the right, by notice to the indemnified party within 15
days after receipt of such notice, to conduct at its own expense, through
counsel of its choosing reasonably approved by the indemnified party, the
defense, settlement and compromise of such claim; provided that, in conducting
such defense, settlement and compromise (i) the indemnifying party shall not
permit to exist any lien, encumbrance or other adverse charge upon any asset
or business of the indemnified party, (ii) the indemnifying party shall cause
its counsel to consult with the indemnified party and its counsel and keep
them fully advised of the progress of the defense, settlement and compromise
and shall take into account the continuing business interests of the
indemnified party, and (iii) the indemnifying party shall promptly reimburse
the indemnified party for the full amount of any liability resulting from such
claim and any defense, settlement or compromise thereof and all related costs
and expenses incurred by the indemnified party, except to the extent otherwise
provided in the next sentence. If the indemnifying party elects to conduct the
defense of such claim, the indemnified party shall cooperate with the
indemnifying party in connection therewith and shall be entitled to
participate in the defense thereof and to appoint counsel for that purpose,
except that the cost of any such participating counsel shall be solely for the
account of the indemnified party and the indemnifying party shall have no
responsibility therefor. So long as the indemnifying party is contesting any
such claim in good faith in accordance with the foregoing requirements, the
indemnified party shall not pay or settle any such claim. Notwithstanding the
foregoing, the indemnified party may pay or settle any such claim at any time,
provided that the indemnified party waives any right to indemnity therefor by
the indemnifying party.
If the indemnifying party does not notify the indemnified party within 15
days; after the receipt of the indemnified party's notice of any such claim
that it elects to undertake the defense of such claim, the indemnified party
shall have the right to defend, settle or compromise the claim in the exercise
of its exclusive discretion; provided, however, that the indemnifying party
shall have the right to participate in the defense of such claim at its own
expense. The indemnifying party shall promptly reimburse the indemnified party
for the full amount of any liability resulting from such claim and any
defense, settlement or compromise thereof and all related costs and expenses
incurred by the indemnified party or, in the alternative, such amounts may be
deducted from any sum under this Lease or otherwise to due the indemnifying
party from the indemnified party.
(d) The mutual indemnification provided by this Paragraph shall survive
expiration or earlier termination of this Lease.
29. Governmental Action. The parties recognize that the business to be
conducted by Lessee on the Property is subject to governmental action over
which the parties have no control (e.g., legislation, regulations, executive
orders, judicial determinations, etc.). Thus the parties agree that the
absence of any adverse governmental action is a condition of Lessee's
obligations under this Lease and any subsequently executed agreements among
them. For purposes of this provision, adverse governmental action shall mean
any governmental action, legislative, executive, judicial or otherwise (but
not including eminent domain which does cause a termination of this Lease), at
any level of government, which would prevent or materially impair Lessee's
ability to legally and economically conduct on the Property its intended soil
remediation business, specifically including the full operation of a 70 ton
per hour soil remediation plant placed thereon by Lessee or any successor
plant approved by Lessor; provided however that this right of termination
shall not apply to matters which Lessee can correct within the above legal and
economic parameters, or are the result of Lessee's own conduct or financial
condition or that of any of its affiliates. In the event of adverse
governmental action, Lessee may terminate this Lease as of that time, or,
alternatively, may propose alternate lawful use(s) of the Property, as to
which Lessor will not unreasonably object, and the rent payable by Lessee to
Lessor shall be adjusted by agreement as necessary to reflect a commercially
reasonable rental for such alternate use(s) on the Property.
30. Contest Of Local Requirements. Lessee shall have the right, after prior
written notice to Lessor, to contest the validity of any legal requirements
imposed or sought to be imposed upon Lessee by any governmental agency, by
appropriate legal proceedings, provided Lessor shall not be subject to any
criminal or civil liability a. a result of any legal contest. Lessee shall
indemnify and hold Lessor harmless from all loss, claims, damages, penalties
and expenses, including attorney's fees, incurred as a result of any such
contest.
31. Quiet Enjoyment. Lessor covenants and agrees that Lessee, on payment of
the rent and other charges provided for in this Lease, and fulfillment of its
obligations under the covenants and conditions of this Lease, shall lawfully
and quietly hold, occupy, and enjoy the Property during the term of this Lease
and all renewals thereof without any interference from anyone claiming through
or under Lessor.
32. Remediation Plants. Lessee agrees that it shall not remove its
Thermotech soil remediation plant currently on the Property until the issuance
of an operating permit by the State of Delaware, Department of Natural
Resources and Environmental Control for a 70 ton per hour soil remediation
plant on the Property. Subject to the terms of Xxxxxxxxx 00, Xxxxxx will not
remove said larger plant from the Property for at least seven (7) years from
the date of commencement of its operation unless such plant becomes inviable
legally or economically, when such plant is considered on an independent basis
without regard to the operations or location of other facilities of Lessee or
any of its affiliates. Lessee will use its best efforts to extend the larger
plant's manufacturer's warranties to Lessor.
33. Memorandum Of Lease. As soon as practicable after execution of this
Lease, Lessor and Lessee shall execute, in recordable form, a Memorandum of
Lease, which Lessee may record.
34. Remedies Cumulative. All rights, remedies and privileges of either party
under this Lease, and by law, are cumulative.
IN WITNESS WHEREOF, the parties hereto set their hands and seals the day and
year first above mentioned.
/s/ Xxxxxx Xxxxxxx, Xx. /s/ Xxxxxx Xxxxxxx, Xx. (SEAL)
Xxxxxx Xxxxxxx, Xx.
CLEAN EARTH OF NEW CASTLE, INC.
Attest: [corporate seal]
By: /s/ Xxxxx Xxxxxxx By: /s/ R. Molleron
Title: Secretary Title: Chairman
By: /s/ Xxxxxxx Xxxxxx
Title: Director
CLEAN EARTH, INC.
Attest: [corporate seal]
By: /s/ Xxxxx Xxxxxxx By: /s/ R. Molleron
Title: Secretary Title: Director
By: /s/ Xxxxxxx Xxxxxx
Title: Director
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