Exhibit 10.24
AGREEMENT FOR TRANSFER OF OWNERSHIP
AGREEMENT dated this 8th day of June, 2000 between CP CHEMICALS, INC., a
New Jersey Corporation located at 0 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx, with a
corporate office at Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx (hereinafter referred
to as "Seller"), and The Township of Woodbridge, a municipal corporation of the
New Jersey, with offices at Xxx Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Buyer").
The "Buyer" and "Seller" may be collectively referred to as the Parties.
1. PURCHASE AGREEMENT. The Seller agrees to transfer ownership to the
Buyer and the Buyer agrees to accept ownership from the Seller, in accordance
with the terms of this Agreement, the real property described in paragraph 3.A.
below, together with the buildings and all other structures and improvements
constructed thereon (hereinafter, the "Property") and including the Equipment
described in paragraph 3.B. below (hereinafter, the "Equipment"). All buildings
are transferred "as is."
2. PURCHASE PRICE. The purchase price for the Property, Equipment and all
other rights and interests to be transferred in accordance with this Agreement
shall be One (1) ($1.00) Dollar.
3. PROPERTY SOLD.
A. The Property is known and designated as Block 729, Lot 3; Block
729A, Lot 1; Block 730, Lots 1 and 1B; and Block 731, Lot 1B on the tax map of
the Township of Woodbridge, County of Middlesex, State of New Jersey and
commonly known as 0 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx (the
"Property") is shown on Exhibit A. A legal description of the Property is
annexed hereto as Exhibit B.
B. The Equipment sold consists of all boilers presently located on
the Property, one (1) scale located in the driveway near the office building;
the guard trailer and all Equipment located in the wastewater treatment plant.
All such Equipment presently exists on the Property and is included in this
sale. Seller agrees to provide Buyer with clear title to the Equipment. All
Equipment is sold "as is".
4. PAYMENT OF PURCHASE PRICE. The Buyer will pay the purchase price at
Closing.
5. CASH CLOSING; NO FINANCING CONTINGENCY. The Buyer represents and
warrants to Seller that it has or will have sufficient cash at Closing to close
the within purchase on the date set forth herein for closing.
6. TIME AND PLACE OF CLOSING. The Buyer and Seller agree to make a date no
later than June 29, 2000 as the date for Closing ("Closing Date"). The Closing
will be held at the offices of the Buyer or of the attorney for the Buyer in New
Jersey.
7. TRANSFER OF OWNERSHIP. At the Closing, the Seller will transfer
ownership of the Property and Equipment to the Buyer. The Seller will deliver to
Buyer at Closing:
A. A properly executed Deed;
B. A standard Affidavit of Title, as further defined below, and
insuring, inter alia, against mechanic's and materialman's
liens and stating that, to the best of Seller's knowledge,
there are no unrecorded interests in the Property or Equipment
of any kind, other than as set forth in the Agreement;
C. A Corporate Resolution authorizing the sale of the Property
and Equipment;
D. If requested, a FIRPTA Affidavit stating that Seller is not a
foreign person;
E. The most recent tax, water and sewer bills for the Property;
F. A payoff letter or release with respect to any mortgages or
liens encumbering the Property or the Equipment;
G. Any and all documents reasonably required by the Buyer's
attorney or title company in order to insure title;
H. A copy of any other document which Seller is required to
deliver by this Agreement and which has not been delivered;
I. Evidence of compliance with the Industrial Site Recovery Act,
N.J.S.A. 13:1K-6 et seq. in accordance with paragraph 29 of
this Agreement.
J. The Indemnification Agreement, properly executed, in the form
attached hereto as Exhibit C, to take effect as of the Closing
Date.
K. The Lease, properly executed, referred to in Paragraph 10 and
attached as Exhibit D in this Agreement, to take effect as of
the Closing Date.
L. A xxxx of sale for all equipment.
8. TYPE OF DEED.
A. Seller agrees to provide and the Buyer agrees to accept a deed
known as bargain and sale with covenants against grantor's acts, subject to
paragraph 14 and including the limitation set forth at Paragraph 44, of this
Agreement.
B. The title to be conveyed must be marketable and insurable, by a
title insurance company authorized to do business in New Jersey. If Seller has a
copy of a previous
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title search on the Property, Seller shall provide same to Buyer within ten days
of execution of this Agreement. Seller shall, at the same time, provide Buyer
with a copy of any searches, as well as the title/registration for any Equipment
that are in Seller's possession.
9. EXPENSES. Seller shall pay the realty transfer fee in connection with
the conveyance of the Property. Buyer shall pay for all title, survey and
inspection fees (including, without limitation, title insurance premiums, search
charges and environmental inspections, if any) incurred by it. Each Party shall
bear all other fees, charges and expenses incurred by it, including legal fees
of its counsel, without contribution from the other, except as expressly set
forth herein.
10. CONTINGENCIES.
A. Execution of Lease. Buyer and Seller acknowledge that the
execution of the Lease attached hereto as Exhibit D is a material inducement to
both Parties for entry into this Agreement. The execution of the Lease attached
as Exhibit D by the Township shall occur at the Closing and shall be a
contingency to the transfer of title pursuant to this Agreement. Said Lease
shall not take effect until the Closing Date.
B. Inspections. For a period of fifteen (15) days after the date a
fully executed copy of this Agreement is delivered to all Parties (the
"Inspection Period"), the Buyer may perform a due diligence investigation of the
Property, including, but not limited to the structural integrity of the
buildings on the Property, past uses of the Property, and the environmental
conditions of the Property.
C. Notwithstanding anything herein to the contrary, if Buyer
determines for any or no reason that it will not accept the Property in its "as
is" condition, Buyer may terminate this Agreement by providing written notice to
Seller on or before fifteen (15) days following the date this Agreement is fully
signed and delivered to all Parties.
D. Seller shall file all applications necessary, at its sole cost
and expenses, to obtain from the New Jersey Department of Environmental
Protection (the "DEP"), "Innocent Purchaser" status for the Buyer.
E. This Article 10 shall survive the Closing.
F. The Parties shall use best efforts to avoid interfering with each
others use of the Property when exercising these access rights, and shall follow
the reasonable rules and regulations promulgated by the other as to areas under
their control. All such rules and regulations should be provided to the other
Party in writing.
11. BUILDING AND ZONING LAWS. The Seller, to the best of its knowledge,
states that the Property is in an industrial zone. If the Property cannot be
used as an auto impound yard and as a testing laboratory, the Buyer shall have
the right to terminate this Agreement during the Inspection Period described
above at Paragraph 10.B.
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12. FLOOD AREA. The federal and state governments have designated certain
areas as "flood areas." Seller and Buyer acknowledge that the Property is
located in a flood area. See Exhibit A. Buyer shall secure its own flood
insurance at its option.
13. ACCESS.
A. Seller's Post Closing Access. The Buyer agrees that Seller shall
have a post Closing right of access as more specifically described in the Lease,
Exhibit D, to this Agreement, subject to the reasonable rules and regulations
established by the Seller from time to time. Buyer also agrees that Seller shall
have a right of access to the Property for the purpose of conducting remedial
investigation and/or remedial action consistent with Seller's obligation under
this Agreement and consistent with Seller's Environmental Obligations as defined
in the Lease, Exhibit D. Seller and Buyer agree that Seller's post Closing
access rights shall also be memorialized in a form of easement, the terms which
shall be agreeable to both Parties. This right shall extend to Seller's agents,
representatives and consultants. Before entering the Property, the Seller shall
deliver to the Buyer certificates of insurance.
B. Buyer's Post Closing Access. Seller and Buyer agree that Buyer
shall have access to the area leased by Seller pursuant to the terms of the
Lease attached as Exhibit D. This right shall extend to Seller's agents,
representatives and consultants.
C. This Article 13 shall survive the Closing.
D. The Parties shall use best efforts to avoid interfering with each
others use of the Property when exercising these access rights, and shall follow
the reasonable rules and regulations promulgated by the other as to areas under
their control. All such rules and regulations shall be provided to the other
Party in writing.
14. OWNERSHIP. The Seller agrees to transfer and the Buyer agrees to
accept title to the Property free of all claims and rights of others, except for
the following, provided that such exceptions would not render title unmarketable
nor uninsurable as provided herein:
A. Deed Notice contained in Deed Book 04643P, Pages 236 through 258.
B. Administrative Consent Order contained in Deed Book 390, Pages 30
through 130.
C. Possible title claim or riparian rights in State of New Jersey if
Property were ever flowed by tidewaters.
D. The rights of utility companies to maintain pipes, poles, cables
and wires over, on and under the Property.
E. Any other restrictions of record provided: (a) restrictions are
not now violated; and (b) violation of such restrictions will not cause a
forfeiture or reversion of title.
F. Such facts as an accurate survey may disclose, provided that
title to the Property is insurable as provided herein.
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15. RISK OF LOSS. Prior to Closing if there is any damage, Seller shall,
at its discretion, have three options: (a) request that Buyer accept the
Property in its damaged condition with an agreed upon adjustment at Closing; (b)
repair the damage within a reasonable period of time after the date of the
casualty but prior to Closing; or (c) terminate the Agreement. If Seller elects
option (a), Buyer may terminate the Agreement or, if Buyer accepts Seller's
election, the Parties will mutually agree on an adjustment at Closing.
16. ASSESSMENTS FOR MUNICIPAL IMPROVEMENTS. Certain municipal improvements
such as sidewalks may result in the municipality charging property owners to pay
for the improvements. Seller represents that to the best of its knowledge there
are no pending or forthcoming governmental improvements. All unpaid charges
(assessments) against the Property for work completed before the closing will be
paid by the Seller at or before the closing. If the improvement is not completed
before the closing, then only the Buyer will be responsible. If the improvement
is completed but the amount of the charge (assessment) is not determined, the
Seller will pay an estimated amount at the closing. When the amount of the
charge is finally determined, the Seller will pay any deficiency to the Buyer
(if the estimate proves to have been too low), or the Buyer will return any
excess to the Seller (if the estimate proves to have been too high).
17. ADJUSTMENTS AT CLOSING.
A. At Closing, the Buyer and the Seller shall adjust for sewer
charges and water charges and any other adjustments provided for in this
Agreement on the Property as of the Closing Date.
B. At Closing, the Buyer and the Seller shall adjust for real estate
taxes as of the day of Closing.
C. The present insurance coverage and public utility service on the
Property shall be terminated as of the Closing Date, and there shall be no
proration of insurance premiums or public utility bills. Seller shall fully pay
for its insurance and utilities. Seller shall be entitled to receive any rebates
related to the present insurance coverage and any utility deposit held by or for
the benefit of Seller in connection with any such utility service, if any.
D. Seller shall remain responsible for all remaining installments of
payment due under the March 1991 Administrative Consent Order. This obligation
shall survive closing of title.
18. POSSESSION AND OCCUPANCY.
A. At the closing the Buyer shall be entitled to possession and no
other individual or entity shall have any occupancy rights, except as may
otherwise be provided for in the Lease between Buyer and Seller attached as
Exhibit D or as set forth herein. Except as provided herein, the Property shall
be in broom-clean condition.
B. Buyer grants the Seller the right to leave equipment listed on
Exhibit E (the "Seller's Equipment") in place. The Seller's Equipment shall
remain the property of Seller. Buyer shall grant the Seller reasonable access to
the Seller's Equipment for the purposes of
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showing the Seller's Equipment for sale, and for removing the Seller's
Equipment. The Seller shall relocate the Seller's Equipment after reasonable
notice from the Buyer, if the Buyer needs the space. Seller shall repair any
damage caused by the removal of the Seller's Equipment. All Seller's Equipment,
except the spray dryer, will be removed from the Property within three (3)
years. The Seller shall use commercially reasonable efforts to remove the spray
dryer as soon as possible. The Buyer shall not be responsible for any loss or
damage to the Seller's Equipment. This Paragraph shall survive closing of title.
19. RIGHT OF WAYS. Seller has not granted any right of ways or easements,
except as disclosed in this Agreement, to any party.
20. PARTIES LIABLE. This Agreement is binding upon all Parties who sign it
and all who succeed to their rights and responsibilities.
21. RECORDING AND NO SURVIVAL.
A. Neither this Agreement, nor a memorandum thereof, shall be
recorded in any place of public record by Seller or Buyer. Buyer may file a
Notice of Settlement.
B. Except as otherwise provided, none of the provisions of this
Agreement shall survive the delivery of the Deed.
22. NOTICES. All notices under this Agreement must be in writing. The
notices must be delivered by nationally recognized overnight carrier; one day
U.S. Post Office delivery; mailed by certified mail, return receipt requested;
or receipted personal delivery to the Seller at the address written in this
Agreement, Attention: Xxxxxx X. Xxxxx, with a copy to Xxxxxxxx X. Xxxxxxx, Esq.,
Xxxxxxxx, Xxxxxxxx & Xxxxxx, 000 Xxxx Xxxx Xxxx, X.X. Xxx 000, Xxxxxxxxxx, Xxx
Xxxxxx 00000 (fax: 000-000-0000) and to Buyer at the address written in this
Agreement, Attention: Business Administrator, with a copy to Director of Law at
the address written in this Agreement. This provision shall survive the Closing.
23. DEFECTS IN TITLE. If the Seller shall be unable, at the time fixed for
closing of title, to convey good and marketable title subject to and in
accordance with this Agreement, the Seller is obligated to initiate steps to
remove forthwith any defects. If, for any reason, such defects cannot be
removed, or should Seller elect not to remove any such defects within forty-five
(45) days from its receipt of notice of the existence of such defects, then the
sole obligation of Seller shall be to notify Buyer in writing that the Agreement
is terminated. Upon the making of such notice, this Agreement shall wholly cease
and terminate and neither Party shall have any further claim against the other
by reason of this Agreement. The Buyer may nevertheless, accept such title as
the Seller may be able to convey without reduction of the purchase price or any
credit or allowance against the same and without any other liability on the part
of Seller, or may extend the date to remove any defects.
24. ASSIGNMENT. This Agreement may not be assigned by either Party without
the written consent of the other Party.
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25. BROKER. Each Party represents and warrants to the other Party that
such Party has not dealt with a broker or brokers in respect of the transaction
contemplated by this Agreement. This provision shall survive Closing or
termination of the Agreement.
26. SELLER'S COVENANTS. In addition to the covenants and representations
of this Agreement, Seller covenants that it will do the following:
Seller will maintain the physical condition of the Equipment and Property,
including the grounds and all other elements of the Property and operate the
Property, in the same condition in which it presently exists through the Closing
Date, reasonable wear and tear excepted. Seller will make all ordinary and
normal repairs and maintenance of the Property from the date hereof until
Closing.
27. EMINENT DOMAIN. Seller shall give Buyer prompt notice of any actual or
threatened taking or condemnation of all or any portion of the Property. In the
event that, prior to Closing, all or any portion of the Property, or the loss of
use of which would impair the overall use of the Property is taken by eminent
domain or notice of such taking is received by Seller, this Agreement may be
canceled at Buyer's option, upon which neither party shall have any rights or
obligations to the other. Should Buyer elect to proceed to Closing, then Seller
shall assign any interest in any sums payable or credit any sums paid as an
adjustment. Seller shall not adjust or settle any condemnation award without
prior written approval of Buyer which approval shall not be unreasonably
withheld or delayed. The provision shall survive the Closing.
28. SELLER'S REPRESENTATIONS. Seller hereby represents to Buyer, each of
which representations shall be true at and shall survive Closing, as follows:
A. Existence. Seller is a New Jersey corporation duly organized and
validly existing in good standing under the laws of the State of New Jersey and
has all requisite power and authority to consummate the transactions
contemplated hereunder and has made proper corporate proceedings, duly
authorized the execution and delivery of this Agreement and the consummation of
all transactions contemplated hereunder.
B. Execution and Performance. The execution and performance of this
Agreement shall not be a breach or violation of any Agreement to which the
Seller is a party.
C. Joinder. All persons or entities having a legal or equitable
title or interest in the Property (or whose joinder in the Deed would be
necessary to convey to Buyer title to the Property as provided in Section 15
hereof) have been identified herein and have executed this Agreement as
"Seller."
D. No Rights to Acquire. No person or entity other than Buyer, or
its assignee, has any right or option to acquire the Property or any portion
thereof.
E. Fire and Casualty Damage. As of the date of this Agreement, no
portion of the Property or any improvements thereof have been damaged or
destroyed by fire or other casualty which have not been fully restored.
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F. Condemnation. Seller has not heretofore received any notice or
communications from any governmental unit or other body having the power of
eminent domain of any pending or threatened condemnation proceeding or other
proceedings in the nature of eminent domain in connection with the Property or
any part thereof, nor are any such proceedings pending to the best of Seller's
knowledge.
G. F.I.R.P.T.A. Representations. Pursuant to Section 1445 of the
United States Internal Revenue Code, the Seller represents that it is not a
foreign corporation, foreign partnership, foreign trust, or foreign estate (as
those terms are defined in the U.S. Internal Revenue Code and Income Tax
Regulations). Seller further represents that its U.S. employer identification
number is 00-000-0000 and that its office address is 0 Xxxxx Xxxxxx, Xxxxxxx,
Xxx Xxxxxx. Seller agrees to provide to Buyer at closing an affidavit containing
all information required by Section 1445 of the U.S. Internal Revenue Code and
regulations pursuant thereto if requested by Buyer two (2) weeks before closing.
H. Ownership. Based on the title policy issued at the time of
acquisition of the Property, the Seller is the owner of good and marketable
title to the Property.
I. Adverse Possession. Seller has not acquired title to the Property
by adverse possession.
J. Taxes and Utilities. Seller has paid real property taxes, sewer
charges, water bills and utilities on the Property.
K. Leases. Seller represents that there are no leases, tenants or
other occupants respecting the Property, except as set forth in Paragraph 10.
L. The Private Road. The private road which is on the property of
Shell Oil Company, ends at the boundary line of the Property. Shell Oil Company
is responsible for maintenance of the road, including repairs and snow plowing.
There are no restrictions governing the use of the road.
29. ENVIRONMENTAL CONDITIONS.
A. Buyer and Seller acknowledge that the sale of the Property may be
subject to compliance with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et
seq., the regulations promulgated thereunder and any amending or successive
legislation and regulations ("ISRA"). No later than five (5) days from the
execution of this Agreement by the last Party to sign, Seller shall submit to
the New Jersey Department of Environmental Protection ("DEP") a General
Information Notice form, Amended General Information Notice form, Applicability
Determination or the equivalent. Seller shall provide Buyer with evidence of
compliance with ISRA at Closing which may include, at Seller's election, a
Remediation Agreement, Amended Administrative Consent Order or the equivalent; a
Non-Applicability Determination; a No Further Action Determination or any
combination thereof. Buyer agrees to waive its right, if any, to vacate this
transaction under ISRA, as a result of any violation of ISRA by Seller, provided
Seller complies with this section A. This section shall survive the closing of
title.
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B. Buyer acknowledges that the Property is currently the subject of
a Deed Notice that contains in Deed Book 04643P, Page 236 to 258 and agrees to
take title subject to all restrictions imposed therein. Buyer also agrees to
allow Seller to record any modifications to that Deed Notice approved by DEP.
Buyer further agrees to comply with all requirements set forth in the recorded
Deed Notice. This section shall survive the closing of title.
C. The Buyer shall accept responsibility for any
investigation/remediation required as a result of Buyer's activities on the
Property subsequent to closing. This section shall survive the closing of title.
D. Buyer further advises that it has been provided with a copy of
the Administrative Consent Order (the "ACO") between CP Chemicals and the DEP
and is aware of the obligations imposed thereunder. The Seller shall be
responsible for complying with all obligations under the ACO except as provided
herein.
E. Post Closing, Buyer shall maintain the Groundwater Recovery
System and the treatment plant on the Property. Seller shall make its Operations
Personnel available to Buyer without cost to the Buyer for a period of sixty
(60) days after closing of title to train Buyer's personnel in the operations of
all equipment at the Property.
F. Buyer agrees that it will obtain all necessary permits and
approvals for its use of the Property. Buyer agrees that, commencing on the
Closing Date, it will operate and maintain the Groundwater Recovery System as
defined in Exhibit F. This section shall survive the closing of title.
G. Both Parties agree to provide the other with a copy of all
documents sent to or received from the DEP within ten (10) business days of
receipt or mailing. This section shall survive the closing of title.
H. Buyer agrees to provide security to prevent unauthorized entry
onto the Property for the term of the Lease and thereafter until Seller advises
Buyer that such measures are no longer required, in accordance with the
requirement of Seller's facility permit issued pursuant to the Resource
Conservation and Recovery Act.
I. Seller shall maintain all financial assurances which may be
required by the DEP and which may be adjusted from time to time by the DEP, at
anytime, as a result of Seller's responsibilities pursuant to this Agreement.
This paragraph shall survive the closing of title.
30. OBLIGATIONS OF BUYER TO REPORT TRANSACTION-1986 TAX REFORM ACT. Buyer
hereby acknowledges and agrees that it shall assume all responsibility for
compliance with the transaction reporting requirements of the 1986 Federal Tax
Reform Act.
31. BUYER REPRESENTATIONS. Buyer hereby represents to Seller, each of
which representations shall be true at Closing, as follows:
A. Buyer has all requisite power and authority to consummate the
transaction contemplated hereunder and has undertaken proper proceedings to duly
authorized the execution
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and delivery of this Agreement and the consummation of all transactions
contemplated hereunder.
B. The execution and performance of this Agreement shall not be a
breach or violation of any agreement to which the Buyer is a Party.
32. BREACH OF CONTRACT. Seller's damages in the event of a breach by Buyer
shall be limited to termination of the Agreement. Buyer's damages in the event
of a breach by Seller shall be limited to termination of the Agreement.
33. ENTIRE AGREEMENT. This Agreement and its Exhibits contains the entire
agreement between the Parties, and no agent, representative, or officer of the
Parties hereto has authority to make or has made any statement, agreement or
representation, either oral or written in connection herewith modifying, adding
to or changing the terms set forth herein. No modification of this Agreement
shall be binding unless such modification shall be in writing and signed by both
Parties.
34. CONSTRUCTION. The Buyer and the Seller agree that each Party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any amendments, exhibits or schedules hereto.
35. EXECUTION. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered, shall be deemed an
original, but such counterparts together shall constitute but one and the same
instrument.
36. HEADINGS. The section headings herein are for convenience only and
shall not be construed to limit or affect any provisions of this Agreement.
37. SEVERABILITY. In the event that any one or more of the provisions of
this Agreement shall be determined to be devoid or unenforceable by a court of
competent jurisdiction, or by law, such determination will not render this
Agreement invalid or unenforceable and the remaining provisions hereof shall
remain in full force and effect.
38. CONTRACT DATE/EFFECTIVE DATE. "Contract Date" and "Effective Date"
shall be defined as the day on which a fully executed Agreement for Transfer of
Real Estate is received by the Buyer or Buyer's attorney.
39. GOVERNING LAW. This Agreement and all other documents shall be
governed by and construed in accordance with the laws of the State of New Jersey
and without reference to conflicts of law. In the event that the Seller or Buyer
brings any action hereunder in any state or federal court in New Jersey, the
Seller or Buyer consents to and confers jurisdiction by such court or courts.
40. INDEMNIFICATION.
A. Buyer hereby releases, holds harmless and agrees to defend and
indemnify Seller with respect to all actions, causes of action, obligations,
expenses, liabilities, losses,
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penalties, fines, fees (including counsel fees and reasonable costs of
investigation and defense) and costs, claims, suits and damages for personal
injury, property damage and violation of any federal, state, county or local
law, statute, regulation, rule or ordinance which Seller may incur, pay out, be
exposed to and/or otherwise be responsible for which arises from or is related
to the Property including without limitation as a result of the presence of any
Hazardous Materials (as defined hereinafter) and/or violation of any
Environmental Law (as defined hereinafter), any conduct, inaction, condition or
discharge that: (1) occurs after the Closing Date, except as a result of the
presence of any Hazardous Materials (as defined hereafter) and/or the violation
of any Environmental Law, as hereinafter defined, which condition or event
occurred prior to the Closing Date; or (2) arises or is related to the operation
and maintenance or failure to operate and maintain the Groundwater Recovery
System on or after the Closing Date.
B. Seller hereby releases, holds harmless and agrees to defend and
indemnify Buyer with respect to all actions, causes of action, obligations,
expenses, liabilities, losses, penalties, fines, fees (including counsel fees
and reasonable costs of investigation and defense) and costs, claims, suits and
damages for personal injury, property damage and violation of any federal,
state, county or local law, statute, regulation, rule or ordinance which may
incur, pay out, be exposed to and/or otherwise be responsible for which arises
from or is related to the Property including without limitation as a result of
the presence of any Hazardous Materials (as defined hereinafter) and/or
violation of any Environmental Law (as defined hereinafter), any conduct,
inaction, condition or discharge that: (1) occurred prior to the conveyance of
the Property pursuant to this Agreement, (2) is a result of the presence of any
Hazardous Materials (as defined hereafter) and/or violation of any Environmental
Law (as defined hereafter) on or before the Closing Date, or (3) occurs as a
result of Seller's post Closing activities on the Property.
C. As used in this Agreement, "Hazardous Material" if any hazardous
waste or hazardous substance as defined in any Environmental Law. As used in
this Agreement, "Environmental Law" means any and all laws relating to the
protection of the environment, human health and safety of any environmental
activity including federal, state, county, city and municipal environmental
clean up statute, law, rule, regulation or ordinance, decree or interpretation.
D. This Paragraph shall survive the Agreement.
E. The indemnification provided for herein shall not be assigned by
either Party.
41. CONFIDENTIAL INFORMATION. Except as precluded by applicable law, any
Party may designate any data, information, reports, or documents provided to the
other as "Confidential Information." The provisions of this Agreement constitute
Confidential Information. Except as required by applicable law or action of
governmental agent acting under color of authority, neither Party shall, without
the prior written consent of the other Party, disclose any Confidential
Information to any third party.
42. COOPERATION. The Parties agree to cooperate with respect to the
execution of documents and/or applications as may be necessary. The Party from
whom signature is sought shall be provided a reasonable opportunity to review
and comment upon any documents.
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43. SUCCESSORS AND/OR ASSIGNS. The covenants, conditions and agreements in
this Agreement shall bind and inure to the benefit of Seller and Buyer and,
except as provided in this Agreement, their respective permitted successors and
assigns.
44. LIMITATION ON FURTHER CONVEYANCE. Buyer acknowledges that a mutual
inducement for Seller's entry into this Agreement is Buyer's agreement not to
convey, either by instrument or operation of law, the to Property subject to
this Agreement, except to another public entity of the State of New Jersey.
Buyer agrees that the deed of conveyance and if requested by Seller, a separate
recordable instrument, shall contain a provision restricting Seller from
conveying the Property, in whole or in part, except to another public entity of
the State of New Jersey, until such time as Seller has received a site-wide No
Further Action Determination without conditions and has no affirmative
obligation of any kind with respect to the Property by reason of environmental
conditions.
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SIGNED AND AGREED TO BY:
Attest: Date Signed: TOWNSHIP OF WOODBRIDGE
/s/ 6/8/00 By /s/
--------------------- ----------- --------------------------------------
Xxxx X. Xxxxx Xxxxx X. XxXxxxxxx, Mayor
Municipal Clerk
CP CHEMICALS, INC.
Seller
ATTEST:
/s/ 4/18/00 By /s/
---------------------- ----------- --------------------------------------
Secretary Senior Vice President &
Chief Regulatory Officer
Exhibits*
Exhibit A - Property Location
Exhibit B - Legal Description
Exhibit C - Indemnification Agreement
Exhibit D - Lease
Exhibit E - Equipment List
Exhibit F - Description of Groundwater Recovery System
Appendix 1 - As-Built Site Plan - 1 of 3 and Details - 2 of 6
prepared by Xxxxx Associates, Inc.
Appendix 2 - Wastewater Treatment Plant Layout - 2 of 3 and
Wastewater
Treatment Plant P& I - 3 of 3 prepared by Xxxxx Associates, Inc.
Appendix 3 - Indirect Discharge Permit
Appendix 4 - Deed Notice
Appendix 5 - Easement
* Exhibits omitted
14
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
CP Chemicals, Inc. a corporation organized under the laws of the State of
NewJersey ("Indemnitor"), in consideration of the agreement for Transfer of
Ownership (the "Agreement") by the Township of Woodbridge (the "Township" or
"Indemnitee"), and for other good and valuable consideration, receipt of which
is hereby acknowledged, represents, agrees and covenants, as follows:
1. Except as otherwise provided, defined terms shall have the same meaning
as in the Agreement for Transfer of Ownership to which this document is an
Exhibit and the Lease between CP Chemicals, Inc. and the Township of Woodbridge.
2. This Indemnification Agreement shall supplement, but not supercede
Paragraph 40 of the Agreement.
3. Indemnitor hereby releases, holds harmless and agrees to defend and
indemnify the Township with respect to all actions, causes of action,
obligations, expenses, liabilities, losses, penalties, fines, fees (including
counsel fees and reasonable costs of investigation and defense) and costs,
claims, suits and damages for personal injury, property damage and violation of
any federal, state, county, or local law, stature, regulation, rule or ordinance
which may incur, pay out, be exposed to and/or otherwise be responsible
("claim") for which arises from or is related to the Property including without
limitation as a result of the presence of any Hazardous Materials and/or
violation of any Environmental Law, any conduct, inaction, condition or
discharge that: (i) occurred prior tot he conveyance eof the Property pursuant
to the Agreement, (ii) is a result of the presence of any Hazardous Materials
and/or violation of any Environmental Law on or before the Closing Date
notwithstanding the date of the damage, injury or loss, (iii)
occurs as a result of Indemnitor's post Closing activities in the Property, (iv)
or is a breach of Indemnitor's representations, warranties or covenants
respecting the environmental condition of the Property made herein (collectively
"Environmental Losses"). The Township agrees to provide Indemnitor with
reasonable notice of its intent to seek indemnification pursuant to thus
Paragraph 3. Indemnitor may elect to defense any claim with counsel of its
choosing provided said counsel is reasonably acceptable to the Township.
4. Indemnitor hereby agrees to defend, hold harmless and indemnify the
Township against all Environmental Losses, including, but not limited to, all
Environmental Losses arising or resulting from actions that: (i) occurred prior
to the conveyance of the Property pursuant to the Agreement, (ii) is a result of
the presence of any Hazardous Materials and /or violation of any Environmental
Law on or before the Closing Date notwithstanding the date of the damage, injury
or loss, (iii) occurs as a result of Indemnitor's post Closing activities on the
Property, (iv) Indemnitor or any prior owner, tenant or occupant of the Property
caused or suffered including a spill, leak, pumping, pouring, emission,
emptying, discharge, injection, escape, leaching, dumping or disposal in the
environment of any Hazardous Substance, oil or petroleum (any of the foregoing
being a "Release") at, upon, under or within the Property in connection with
their operations on the Property or any contiguous real estate; (v) involved
Indemnitor or any prior owner, tenant or occupant with respect to operations at
the Property which lead or could lead to the creation of a lien on such Property
under the Environmental Law; or (vi) permitted by Indemnitor or any prior owner,
tenant or occupant of the Property with respect to any tenant or occupant of the
Property to engage in any activity that could lead to the creation of a Lien on
the Property, under the Environmental Law. The Township agrees to provide
Indemnitor with reasonable notice of its intent to seek indemnification pursuant
to this Paragraph 4. Indemnitor
2
may elect to defend any claim with counsel of its choosing provided said counsel
is reasonably acceptable to the Township.
5. This indemnity encompasses all Environmental Losses, whether
foreseeable or unforeseeable, direct or consequential, actual or threatened,
including, without limitation, the cost of any required or necessary in section,
audit, cleanup, detoxification or similar action, and the preparation of any
closure or other required plans, consent orders, license applications or similar
processes.
6. Indemnitor agrees the environmental Losses shall include, without
limitation: (I) any loss or damage suffered by the Township, even if the claim
or suit resulting in such loss is ultimately determined to be false, or (ii) any
liability of Township for damages resulting from the personal injury or death of
any Person, and notwithstanding the fact that Indemnitor has paid, or is
obligated to pay, such Person (or his/her survivors) under the worker's
compensation laws of the State of New Jersey, or any other similar law for the
protection of employees.
7. This indemnity is an original obligation of Indemnitor and is an
absolute, unconditional, unlimited, continuing and irrevocable indemnity for
Environmental Losses and shall remain in full force and effect without respect
to the future changes and conditions, including changes of law or any invalidity
or irregularity with respect to this Indemnification Agreement.
8. This Indemnification Agreement shall continue in full force and effect
and shall not expire. This Indemnification Agreement shall not be discharged or
affected by the dissolution, amalgamation, any change in the name, business,
membership, directorate, powers, partnership, corporate or other business form,
winding -up proceedings, proceedings under the Bankruptcy
3
Code, liquidation, receivership proceedings, the appointment of a receiver or
other insolvency proceedings occurring in respect of Indemnitor.
9. Indemnitor further agreements that the Township shall not be obligated
to resort to or exhaust any recourse which Township may have against any other
source in respect of any Environmental Losses (such surety and Persons being
hereinafter "Third Party Obligor") or against any security therefor before being
entitled to claim against Indemnitor. The liability of Indemnitor shall be
continuing and enforceable by the Township against Indemnitor with respect to
each and every occurrence of Environmental Loss, and nothing shall prevent the
ownership, in its sole discretion, from resorting to recourse from other sources
first should it so elect.
10. No delay on the part of Township in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Township of any right or remedy shall preclude any further exercise thereof; nor
shall any modification or waiver of any of the provisions of this
Indemnification Agreement be binding upon township, except as expressly set
forth in writing duly signed and delivered on behalf of Township by an
authorized officer or agent. Any failure on the part of Township at any time or
times hereafter to require strict performance by Indemnitor or any Third Party
Obligor in respect of any Environmental Loss, shall not waive, affect or
diminish any right township may have at anytime or times hereafter to demand
strict performance thereof, and such right shall not be deemed to have been
waived by any act, failure to act or knowledge on the part of any of its agents,
officers or employees of Township, unless such waiver is contained in an
instrument in writing signed by such officer or agent or employee and directed
to Indemnitor or any third Party Obligor, as may be required, specifying such
waiver. No waiver by Township of any default shall operate as a waiver of any
4
other default or the same default on a future occasion, and no action on the
part of Township permitted hereunder shall in any way affect or impair the
rights of Township or the obligations of Indemnitor under this Indemnification
Agreement.
11. This Indemnification Agreement is independent of, and in addition to,
any and all rights of Township against any other Person.
12. This Indemnification Agreement shall be construed in accordance with
the laws of the State of New Jersey. Indemnitor hereby agrees that all actions
or proceedings arising directly or indirectly hereunder may, at Township's
option, be litigated in Courts having situs within the State of New Jersey, and
Indemnitor hereby expressly consents to the jurisdiction of any local, state or
federal court located within such State, and consents that any service of
process in such action or proceeding may be made by personal service or process
upon Indemnitor where Indemnitor may be then located or by certified or
registered mail directed to Indemnitor at the address set forth below its
signature on the last page of this Indemnification Agreement or such other
address as Indemnitor has notified Township of in writing.
13. In the event that any provision or any part of any provision of this
Indemnification Agreement is deemed to be invalid by reason of the operation of
any law or by reasoning of the interpretation placed thereon by a court, this
Indemnification Agreement shall be construed as not containing such provision or
the remainder of such provision, and all of the provision and remainders of
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
5
14. Without limiting the generality of any other provision of this
Indemnification Agreement, each and every right, remedy and power hereby granted
to Township or allowed Township by law or other agreement in respect of
Indemnitor shall be cumulative and not exclusive of any other and may be
exercised by Township at any time and from time to time.
15. This Indemnification Agreement shall be binding upon Indemnitor and
successors and assigns.
16. Indemnitor hereby certifies that it has all necessary authority to
grant and execute this Indemnification Agreement.
17. This Indemnification Agreement is not assignable.
18. The parties agree that there are no third party beneficiaries to this
Indemnification Agreement.
19. This Indemnification Agreement may be signed in counterparts.
20. This Indemnification Agreement shall be executed by the Township on
the Closing Date, shall not take effect until the Closing date and shall be
considered null, void and of no effect in the event that Closing and transfer of
title does not occur pursuant to the Agreement.
6
IN WITNESS WHEREOF, Indemnitor has executed this Indemnity Agreement this
______________ day of ______, 2000.
Attest: Date Signed: TOWNSHIP OF WOODBRIDGE
/s/ 6-8-00 By /s/
---------------------- ----------- -------------------------------------
Xxxx X. Xxxxx Xxxxx X. XxXxxxxxx, Mayor
Municipal Clerk
CP CHEMICALS, INC.
Attest:
/s/ 4/18/00 By /s/
---------------------- ----------- -------------------------------------
Secretary Senior Vice President &
Chief Regulatory Officer
LEASE
LANDLORD TOWNSHIP OF WOODBRIDGE
TENANT CP CHEMICALS, INC.
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEMISED PREMISES - TITLE - TERM OF LEASE.............................1
Section 1.01. Demised Premises..............................................1
Section 1.02. Title.........................................................2
Section 1.03. Term of Lease.................................................2
Section 1.04. Option to Modify or Extend....................................2
Section 1.05. Recordable Instruments........................................3
ARTICLE 2 USE OF PREMISES......................................................3
Section 2.01. Use...........................................................3
Section 2.02. Parking.......................................................3
Section 2.03. Scale.........................................................4
Section 2.04. Office........................................................4
ARTICLE 3 RENT AND OTHER CHARGES...............................................4
Section 3.01. Rent..........................................................4
Section 3.02. Additional Rent...............................................5
ARTICLE 4 INTENTIONALLY LEFT BLANK.............................................5
ARTICLE 5 UTILITY EXPENSE......................................................5
Section 5.01. Utility Expense...............................................5
Section 5.02. Taxes.........................................................6
ARTICLE 6 RIGHT OF ENTRY.......................................................7
Section 6.01. Landlord's Right of Entry.....................................7
Section 6.02. Tenant's Right of Entry.......................................7
Section 6.03. Noninterference...............................................8
Section 6.04. Easement......................................................8
ARTICLE 7 CHANGES, ALTERATIONS AND ADDITIONS...................................8
Section 7.01. Tenant's Right to Make Alterations............................8
Section 7.02. Compliance with Governmental Requirements.....................9
Section 7.03. Landlord's Cooperation........................................9
ARTICLE 8 AFFIRMATIVE OBLIGATIONS AND COVENANTS OF TENANT.....................10
Section 8.01. Affirmative Obligations......................................10
ARTICLE 9 WORK AT THE PREMISES................................................10
Section 9.01. Work at the Premises.........................................10
ARTICLE 10 ENVIRONMENTAL CONDITIONS...........................................11
Section 10.01. Deed Notice.................................................11
Section 10.02. Permits and Approvals.......................................11
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ARTICLE 11 LANDLORD'S WORK....................................................12
Section 11.01. Landlord's Work.............................................12
ARTICLE 12 INSURANCE, CASUALTY, CONDEMNATION..................................12
Section 12.01. Coverages...................................................12
Section 12.02. Evidence of Insurance.......................................13
Section 12.03. Fire or Other Casualty......................................13
Section 12.04. Condemnation................................................14
ARTICLE 13 INDEMNIFICATION....................................................16
Section 13.01. Tenant's Indemnification of Landlord Against Liability......16
Section 13.02. Landlord's Indemnification of Tenant Against Liability......16
ARTICLE 14 LANDLORD'S REMEDIES IN EVENT OF TENANT'S DEFAULT OR BANKRUPTCY.....17
Section 14.01. Events of Default...........................................17
Section 14.02. Termination of Lease........................................18
Section 14.03. Landlord's Damages..........................................18
Section 14.04. No Waiver...................................................18
ARTICLE 15 ASSIGNMENT AND SUBLETTING..........................................18
Section 15.01. Right of Assignment.........................................18
Section 15.02. Landlord's Right to Collect Rent............................19
ARTICLE 16 EFFECTIVE DATE.....................................................19
Section 16.01. Effective Date..............................................19
ARTICLE 17 EXONERATION OF INDIVIDUALS.........................................20
Section 17.01. Exoneration.................................................20
ARTICLE 18 NOTICES............................................................20
Section 18.01. Notices.....................................................20
ARTICLE 19 SECURITY...........................................................21
Section 19.01. Security....................................................21
ARTICLE 20 QUIET ENJOYMENT - CONVEYANCE BY LANDLORD-REPRESENTATIONS BY THE
LANDLORD .....................................................................21
Section 20.01. Quiet Enjoyment.............................................21
Section 20.02. Conveyance by Landlord......................................21
Section 20.03. Representations and Warranties of Landlord..................22
ARTICLE 21 ESTOPPEL CERTIFICATE...............................................23
ARTICLE 22 [INTENTIONALLY LEFT BLANK].........................................23
ARTICLE 23 SURRENDER..........................................................23
Section 23.01. Conditions of Surrender.....................................23
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Section 23.02. Tenant's Property...........................................23
ARTICLE 24 LEASEHOLD MORTGAGE.................................................24
Section 24.01. Leasehold Mortgage..........................................24
ARTICLE 25 MISCELLANEOUS......................................................31
Section 25.01. Submission of Lease.........................................31
Section 25.02. Governing Law...............................................31
Section 25.03. Broker......................................................31
Section 25.04. Savings Clause..............................................32
Section 25.05. Signs.......................................................32
Section 25.06. Non-Merger; No Fee Estate Subordination.....................32
Section 25.07. Parties Bound...............................................33
Section 25.08. Number and Gender...........................................33
Section 25.09. Captions....................................................33
Section 25.10. Counterparts................................................33
Section 25.11. No Surrender................................................33
ARTICLE 26 CONFIDENTIAL INFORMATION...........................................33
Section 26.01. Confidential Information....................................33
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L E A S E
THIS INDENTURE OF LEASE (hereinafter called "Lease") dated the day of
_______ 2000 by and between, THE TOWNSHIP OF WOODBRIDGE with an address at
________________ (hereinafter referred to as "Landlord"), and CP CHEMICALS, INC.
having an address at Xxx Xxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx 00000 (hereinafter
referred to as "Tenant"). This Lease shall take effect on the Closing Date, as
defined in the Agreement for Transfer of Ownership to which this Lease is an
Exhibit. The Landlord and Tenant may be collectively referred to as the Parties.
W I T N E S S E T H :
ARTICLE 1
DEMISED PREMISES - TITLE - TERM OF LEASE
Section 1.01. Demised Premises
In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of the Tenant to be observed and performed,
Landlord does hereby lease and demise to the Tenant and the Tenant does hereby
hire, lease and take from Landlord, for the Term subject to and upon the
covenants, terms, agreements and conditions hereinafter set forth, that portion
of a certain tract or parcel of land as described and depicted in Exhibit 1 (the
"Premises" or "Demised Premises") which is part of a larger tract or parcel of
land consisting of approximately fourteen (14) acres lying and being located on
Arbor Street, Sewaren, Woodbridge Township, know as Xxxxx 000, Xxx 0; Xxxxx
000X, Xxx 1; Block 730, Lots 1 and 1B; and Block 731, Lot 1B on the tax map of
the Township of Woodbridge, County of Middlesex, State of New Jersey (the
"Property"). The Premises is also commonly known as Areas 1, 5 and 7, the
loading pad at Building 19, the loading dock at Building 44, and Building 44.
The square footage of the Demised Premises is as follows: Area 1: 2,520 sq. ft.;
Area 5: 652 sq. ft.; Area 7: 856 sq. ft.; the loading pad at Building 19: 560
sq. ft.; the loading dock at Building 44: 4,200 sq. ft.; and Building 44: 9,052
sq. ft..
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Together with any and all improvements presently on the Premises.
Together with all the appurtenances, rights, interests, easements and
privileges pertaining to the Premises.
Section 1.02. Title
At the commencement of the Term of the Lease, Landlord shall own the fee
title to the Demised Premises, subject to restrictions and encumbrances of
record, zoning regulations affecting such Premises and any state of facts shown
on an accurate survey or as a visual inspection of the Premises would disclose.
Section 1.03. Term of Lease
The Term of the Lease shall be ten (10) years commencing on the Closing
Date, as defined in the Agreement for Transfer of Ownership to which this Lease
is an Exhibit ("Commencement Date") and shall expire ten (10) years thereafter,
except to the extent that Tenant continues to require access to satisfy Tenant's
Environmental Obligations, as defined herein. As to Tenant's Environmental
Obligations, this Lease shall expire when Tenant receives written notice from
the applicable governmental agency that its Environmental Obligations are
satisfied. Environmental Obligations shall be defined as any obligation imposed
on Tenant by a governmental authority under Environmental Laws. Environmental
Laws shall be defined as any state, federal, local or county, statute, law, rule
or regulation concerning the environment including any permit, order, consent
order or other document issued thereunder ("Expiration Date"). The aforesaid
period shall be referred to as the "Term" or "Lease Term".
Section 1.04. Option to Modify or Extend
Tenant shall have the option to expand or modify the Premises subject to
its use by providing Landlord with sixty (60) days advance written notice of a
request to modify its leasehold interest. Said notice shall include a
description of the property to be included in or excluded from the leasehold,
the effective date, and proposed terms and conditions associated with the
request. Landlord agrees to review any such request and respond to Tenant, in
writing, within thirty (30) days of receipt of Tenant's request.
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Landlord's consent to Tenant's request shall not be unreasonably withheld,
delayed or conditioned.
Section 1.05. Recordable Instruments
Upon the commencement of the Term, Landlord and Tenant shall execute and
exchange the following recordable instruments: 1. a form of memorandum of lease;
2. easement documents; and 3. any other recordable instruments required by this
Lease. All recordable instruments shall be in a form acceptable to both Parties
and shall be approved by both Parties prior to recordation. All costs associated
with the preparation, execution and recordation of any recordable instrument
shall be paid in full by the Party making the request for the recordable
instrument. All recordable instruments shall include a termination date and
shall automatically expire no later than the Expiration Date, as defined herein.
ARTICLE 2
USE OF PREMISES
Section 2.01. Use
The Tenant shall use and occupy the Premises for the uses permitted by
Tenant's Hazardous Waste Facility Permit, EPA I.D. No. NJD002141950, N.J.
Facility No. 1225H1, attached as Exhibit 2 and storage, preparation and/or
transfer of material for market or further development ("Tenant's Use").
Section 2.02. Parking
Subject to the following conditions, Tenant shall have access to and use
the parking area, at no Additional Rent or other charge, as designated on
Exhibit 3 for the Term of the Lease. Tenant will be allowed a minimum of two (2)
parking spaces throughout the Term. Landlord shall have the right to assign
parking spaces and limit the number of parking spaces available to Tenant, based
on Landlord's use of the Property. Tenant's use of the parking area shall be
subject to the reasonable
-3-
rules and regulations that may be established by Landlord and that shall be
provided to Tenant in writing.
Section 2.03. Scale
Tenant shall have the right to access and use the scale, at no Additional
Rent or other charge, as depicted on Exhibit 3 for the Term of the Lease.
Tenant's use of the scale shall be subject to the reasonable rules and
regulations that may be established by Landlord and that shall be provided to
Tenant in writing. Landlord reserves a right to designate hours during which
Tenant may have access to the scale. Landlord shall have no obligation to
maintain and/or repair the scale and shall have no liability to Tenant if the
scale fails to operate.
Section 2.04. Office
Tenant shall have access to and use of an office in the building currently
used for offices, at no Additional Rent or other charge, as designated on
Exhibit 3, for the Term of the Lease. Landlord shall designate the area in the
office available to Tenant. Tenant's use of the office shall be subject to the
reasonable rules and regulations that may be established by Landlord and shall
be provided to Tenant in writing.
ARTICLE 3
RENT AND OTHER CHARGES
Section 3.01. Rent
A. The Annual Rent to be paid by Tenant to Landlord shall be as follows:
Calendar Year or Portion Thereof Annual Amount
-------------------------------- -------------
1 $300,000.00
2 $300,000.00
3 $300,000.00
4 $200,000.00
5 $200,000.00
6 $200,000.00
7 $125,000.00
8 $125,000.00
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9 $125,000.00
10 $125,000.00
B. Said Annual Rent shall be paid in advance on a calendar year basis,
without notice or invoice from Landlord. The Annual Amount for year 1 shall be
paid in two payments. The first payment shall be in the amount of $150,000 and
shall be made upon execution of this Lease by Woodbridge Township on the Closing
Date. The second payment shall be made on December 1, 2000 and shall be in the
amount of $150,000. Thereafter, the Annual Rent shall be paid yearly on January
1 or the first business day thereafter. Said Annual Rent and all other payments
due under this Lease (sometimes herein collectively referred to as "Rent") shall
be paid to the Landlord at its address hereinabove first specified, or, to such
other payee or address as the Landlord may otherwise direct in writing.
C. In the event that the Annual Rent is not received by Landlord within
fifteen (15) days after the due date, there will be late charge in the amount of
eight percent (8%) of the annual amount.
Section 3.02. Additional Rent
All payments Tenant is required to make pursuant to this Lease, other than
Annual Rent payments shall constitute "Additional Rent" and, if Tenant defaults
in any such payment so as to create an Event of Default (as hereinafter
defined), Landlord shall have (in addition to any rights and remedies granted
hereby) all rights and remedies provided by law for the nonpayment of rent.
ARTICLE 4
INTENTIONALLY LEFT BLANK
ARTICLE 5
UTILITY EXPENSE
Section 5.01. Utility Expense
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Tenant shall bear its own utility costs. Tenant shall, at its election,
either arrange for separate electric, water, and gas service at its sole cost
or, if Tenant uses the existing electric, water or gas service, Tenant shall
reimburse Landlord for Tenant's electric, water, or gas use. Tenant does not
intend to use water or natural gas at the Premises. Tenant agrees to reimburse
Landlord for any incremental increase in the costs of operating the wastewater
treatment plant arising from Tenant's operations.
Section 5.02. Taxes
Tenant shall pay, as Additional Rent, the percent of all Real Estate Taxes
(as defined below) attributable to the land included in Demised Premises and one
hundred 100% percent of the Real Estate Taxes attributable to the buildings in
the Demised Premises and to any Improvements constructed on the Demised Premises
by the Tenant which may be levied or assessed or which accrue on or after the
Commencement Date. For purposes of this Lease, the percent of Real Estate Taxes
attributed to the Demised Premises shall be calculated by dividing the amount of
Real Estate Taxes by the square footage of the Property and multiplying the
result by the square footage of the Demised Premises. Any Real Estate Taxes
attributed to Improvements constructed by Tenant shall not be included in this
calculation. Tenant acknowledges that the Premises do not constitute a separate
independent tax lot but are part of a larger combined tax lot owned by Landlord.
As used in this Paragraph, the words and terms which follow mean and
include the following:
(i) "Real Estate Taxes shall mean the property taxes which shall or may be
levied, assessed imposed, become due and payable, or become liens upon the
property of which the Premises forms a part, or arise in connection with the
specific use, occupancy or possession of, or become due or payable out of, or
for the Premises, or for the Premises or any part thereof, or any buildings or
other improvements actually on the Premises, or levied, assigned or imposed upon
the rent, as such, payable the Landlord. If due to a future change in the method
of taxation prevailing at the date of this Lease, any franchise, income or
profit tax or a license fee measured by or based in
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whole or in part upon the Premises or any portion thereof, shall be levied,
assessed or imposed against Landlord in substitution for, or in lieu of, the
whole or any part of any tax now levied, assessed or imposed which would
otherwise constitute Real Estate Taxes, such franchise, income or profit tax or
license fee shall be deemed to be Real Estate Taxed for the purposes hereof;
conversely, any additional real estate tax hereafter imposed in substitution
for, or in lieu of, any franchise, income or profit tax (which is not in
substitution for, or in lieu of, or in addition to, a Real Estate Tax as
hereinbefore provided) shall not be deemed Real Estate Taxes for the purposes
hereof. Real Estate Taxes shall also include all fees and expenses, including
legal fees, to context and/or challenge any tax assessment.
ARTICLE 6
RIGHT OF ENTRY
Section 6.01. Landlord's Right of Entry
For the duration of this Lease, Landlord shall have the right to enter
upon the Demised Premises for the purpose of: (1) fulfilling its obligations
under the Agreement For Transfer of Ownership to which this Lease is an exhibit
including, without limitation, Landlord's obligations under Paragraphs 29 and
40; (2) inspecting Tenant's operations to ensure compliance with this Lease; (3)
inspect the Demised Premises; and (4) to carry out any actions ordered by the
state, federal or local governments. This access shall include, but not be
limited to access the interiors of buildings, the ability to drill xxxxx,
collect soil borings, and collect other samples as directed by local, state or
federal court or governmental agency.
Section 6.02. Tenant's Right of Entry
For the duration of this Lease, Tenant shall have the right to enter upon
the Property not included in the Premises for the purpose of: (1) fulfilling its
obligations under the Agreement For Transfer of Ownership to which this Lease is
an Exhibit; (2) for access post closing as described in
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Xxxxxxxxx 13 of the Agreement For Transfer of Ownership to which this Lease is
an Exhibit; (3) to carry out any actions ordered by the state, federal or local
governments; and (4) as may otherwise be necessary under this Lease including
without limitation, to access the Premises. This access shall include, but not
be limited to access the interiors of buildings, the ability to drill xxxxx,
collect soil borings, and collect other samples as directed by any local, state
or federal court or governmental agency.
Section 6.03. Noninterference
The Parties shall use best efforts to avoid interfering with each other's
use of the Property and the Premises when exercising these access rights.
Section 6.04. Easement
The Parties agree that Tenant's post closing access rights shall also be
memorialized in a form of an easement, the terms of which shall be agreeable to
both Parties, that will be executed simultaneous with and as a condition to the
execution of this Lease.
ARTICLE 7
CHANGES, ALTERATIONS AND ADDITIONS
Section 7.01. Tenant's Right to Make Alterations
A. Subject to the prior approval of the Landlord, which approval shall not
be unreasonably withheld, delayed, or conditioned, Tenant shall be entitled to
build, make any alterations, rebuildings, replacements, changes, improvements or
additions to the Premises (hereinafter referred to collectively as the
"Alterations" or "Improvements").
B. Subject to the provisions herein, Tenant has the right to make any
Alterations as long as Tenant complies with the requirements set forth below:
(i) that the same shall be performed in a first class workmanlike
manner;
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(ii) that before the commencement of any such work, Tenant's plans
and specifications shall be filed with and approved by necessary government
authorities and any public utility company and such work shall be done subject
to and in accordance with all applicable law;
(iii) all Improvements shall be and remain the property of the
Tenant until the Term expires. Upon that date, Landlord shall, at its option,
direct the Tenant to either deliver the Improvements to the Landlord or remove
the Improvements from the Property. Tenant shall repair any damages caused by
the removal of an Improvement at Tenant's cost.
(iv) Tenant agrees to pay any increase in taxes or make payment in
lieu of taxes for any increase in taxes over the base year 2000 that are
assessed as a result of an Improvement or Alteration made by Tenant.
(v) Tenant agrees that it shall provide a bond to insure the
completion of any Alteration in excess of $25,000.00.
(vi) All work shall be subject to inspection and approval by the
Landlord, consistent with Landlord's approval under SubParagraph A hereof and
Section 7.02. Landlord's approval shall not be unreasonably withheld, delayed or
conditioned.
Section 7.02. Compliance with Governmental Requirements
Any Alteration shall be made in compliance with all applicable laws, rules
and governmental regulations.
Section 7.03. Landlord's Cooperation
Landlord shall promptly sign all permits and applications which may be
required to secure any necessary approvals for the construction and/or
alteration of the Improvements constructed by Tenant, in accordance with the
terms of this Lease. Any request made hereunder shall be at the sole cost and
expense of Tenant.
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ARTICLE 8
AFFIRMATIVE OBLIGATIONS AND COVENANTS OF TENANT
Section 8.01. Affirmative Obligations
Tenant covenants and agrees, at its own cost and expense, at all times
during the Term, to:
A. Comply with Laws. Comply with applicable laws, ordinances, rules and
regulations of governmental authorities or obtain an exception or exemption
therefrom.
B. Garbage. Handle and dispose of all rubbish, garbage and waste from
Tenant's operation in accordance with laws and ordinances. Tenant's actions
under this provision shall be subject to the reasonable rules and regulations
that may be established by Landlord and that shall be provided to Tenant in
writing.
C. Tenant shall have the right to contest by appropriate legal proceedings
which shall be conducted diligently and in good faith in the name of Landlord or
Tenant or both and without cost or expense to Landlord, the validity or
applicability of any law, ordinance, order, rule, or regulation of the nature
hereinabove referred to and Tenant shall have the right to delay observance
thereof and compliance therewith until such contest is finally determined and is
no longer subject to appeal, provided that observance and compliance therewith
pending the prosecution of such proceeding may be legally delayed without
subjecting Landlord to any criminal liability or fine. Tenant shall indemnify,
defend and hold Landlord harmless for any damages, cost or expense incurred by
Landlord as a result of Tenant's actions under this SubParagraph C.
ARTICLE 9
WORK AT THE PREMISES
Section 9.01. Work at the Premises
A. Notice is hereby given that Landlord shall not be liable for any work
performed or to be performed at the Premises for Tenant, or for any materials
furnished or to be furnished at the Premises for Tenant, and that no mechanic's
or other lien for such work or materials shall attach to or
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affect the interest of Landlord in and to the Premises. Any mechanic's lien
filed against the Premises as a result of the Tenant's acts shall be bonded or
removed by the Tenant within thirty (30) days after Tenant receives written
notice of any such liens having been filed. Tenant is permitted to finance
equipment, furnishings, and fixtures installed by Tenant. Landlord shall sign a
waiver form acknowledging the financing and in which any such lender rights
shall be acknowledged and recognized. Such waiver must provide that any
lienholder will repair any damage caused in connection with the removal of any
property and that any property shall be removed within sixty (60) days after the
end of the Term so long as monthly payments of Annual Rent and Additional Rent
are paid to the Landlord for such additional period needed to remove the
property.
ARTICLE 10
ENVIRONMENTAL CONDITIONS
Section 10.01. Deed Notice
Landlord and Tenant acknowledge that the Property, including the Premises,
is currently the subject of a Deed Notice recorded in Deed Book 04643P, Pages
236 to 258. Landlord agrees to allow Tenant to record any modification(s) to
that Deed Notice approved by the New Jersey Department of Environmental
Protection ("DEP"). Landlord agrees to comply with all requirements set forth in
the recorded Deed Notice and any modifications. Tenant shall implement the
requirements pursuant to Article 13 and Section 10.02. Tenant shall provide
notice to Landlord of any modification to the Deed Notice. Landlord shall have
the opportunity to review any Deed Notice in advance of recordation; however,
Landlord agrees that its review and comment on a modification to the Deed Notice
shall not be inconsistent with the requirements imposed by the New Jersey
Department of Environmental Protection or other federal, state, local or county
agency and shall not cause Tenant to be in violation of any such requirement.
Tenant further agrees to provide Landlord with a copy of any documents sent to
or received from the DEP pursuant to this Section 10.01.
Section 10.02. Permits and Approvals
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Tenant agrees that it will obtain all necessary permits and approvals for
its use of the Premises. Tenant agrees that, except as provided below, Tenant
will not rely on any of Landlord's permits and approvals without the express
written consent of Landlord. Landlord agrees that it will not rely on any of
Tenant's permits and approvals without the express written consent of Tenant.
Landlord and Tenant agree that Tenant shall have a right, during the Term of the
Lease, to utilize Landlord's Indirect User Permit authorizing discharge to the
Middlesex County Utilities Authority and, to request that Landlord seek
modification of that permit, at no cost to Landlord. Tenant further agrees that
it will reimburse Landlord for any incremental increases in the cost of
operating the wastewater treatment plant or Groundwater Recovery System as a
result of any such request by Tenant. Landlord agrees that it will operate and
maintain the Groundwater Recovery System as defined in Exhibit 4.
ARTICLE 11
LANDLORD'S WORK
Section 11.01. Landlord's Work
Landlord shall not, except as specifically provided for herein, be
required to do any work to make the Demised Premises ready for Tenant's use and
occupancy.
ARTICLE 12
INSURANCE, CASUALTY, CONDEMNATION
Section 12.01. Coverages
A. Tenant shall, at its own cost and expense, maintain comprehensive
public liability insurance against claims for personal injury, death and
property damage occurring in or about the Premises; such insurance shall afford
minimum protection of one million dollars ($1,000,000) with respect to the
personal injury or death of any one person; one million dollars ($1,000,000)
with respect to personal injury or death occurring or resulting from one
occurrence naming Landlord as an additional insured.
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B. Tenant shall obtain at its own cost and expense, maintain all risk
property, fire and casualty insurance in the amount of one million dollars
($1,000,000). Landlord shall be named as an additional insured.
C. Landlord acknowledges that, except as specifically provided for in this
Lease, Landlord shall have no right to any of the proceeds of said insurance and
that Landlord has no insurance coverage under any policies obtained where Tenant
is named as the sole loss payee.
D. Except as provided herein, Landlord shall have the right to receive
insurance proceeds for damage or destruction to the Improvements. Landlord shall
have no right to any insurance proceeds covering Tenant's contents, including
without limitation equipment, machinery, raw materials and product.
E. Tenant shall advise its insurers to notify Landlord at least thirty
(30) days prior to the termination or cancellation of any insurance maintained
pursuant to this Section 12.01.
Section 12.02. Evidence of Insurance
All insurance required to be maintained by Tenant by this Article 12 may
be effected by policies of blanket insurance, covering property other than the
Premises. Tenant shall furnish Landlord with reasonable proof of compliance with
the requirements of this Article.
Section 12.03. Fire or Other Casualty.
A. In the event of a fire or other casualty affecting the Premises, Tenant
shall, within one hundred twenty (120) days after the date it receives its final
casualty insurance proceeds, advise Landlord in writing whether it shall: 1.
commence rebuilding its Improvements; or 2. abandon the Premises; or 3. modify
its use of the Premises. Tenant agrees to diligently pursue final casualty
insurance proceeds.
B. Notwithstanding anything to the contrary contained in the preceding
Paragraph A of this Section or elsewhere in this Lease, during the Term, Tenant
may terminate this Lease on fifteen (15) days notice to Landlord, given within
one hundred twenty (120) days after Tenant's receipt of its
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final casualty proceeds if Tenant's Improvements shall be damaged or destroyed
where the cost to repair the Improvements shall amount to ten (10%) percent or
more of the cost of replacement thereof. In the event Tenant does not elect to
terminate this Lease, Tenant shall, subject to receipt of any necessary
municipal approvals, commence restoration one hundred and twenty (120) days from
receipt of the casualty insurance proceeds and shall have the right to use said
proceeds to rebuild with the remainder of the proceeds to be paid to Landlord.
In the event Tenant elects to terminate the Lease, the casualty insurance
proceeds shall be used, first to level the building and remove all debris caused
by the casualty and the demolition of the building, then to payoff any Leasehold
Mortgagee and the remaining balance to the Landlord. Notwithstanding the above,
Landlord shall have no right to insurance proceeds paid as a result of loss of
contents including without limitation Tenant's equipment, machinery, raw
materials, product or other contents.
C. This provisions of this Section 12.03 shall have no effect on Tenant's
obligation to pay Rent pursuant to Article 3 of this Lease.
Section 12.04. Condemnation
A. Total or Partial Condemnation. If the whole of the Premises shall be
taken for any public or any quasi-public use under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then this Lease shall
automatically terminate as of the date that title shall be taken. If a
substantial part of the Premises shall be taken, including a portion of Tenant's
building or the property, so as to interfere with the operation of Tenant's
business, then Tenant shall have the right to terminate this Lease, effective as
of the actual taking, on thirty (30) days notice to the Landlord given within
ninety (90) days after receipt of the Notice of Taking. In the event only a
portion of the Premises (not affecting the building) shall be taken and, in
Tenant's judgment reasonably exercised, the balance of the Premises after
reconstruction is suitable for Tenant's business, this Lease shall not terminate
and Tenant shall be entitled to use the condemnation proceeds applicable to the
Improvements on the Premises to rebuild. Except as provided herein, in
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the event that Tenant elects not to rebuild, Landlord shall have the right to
all condemnation proceeds. In the event Tenant elects to rebuild, and Landlord
consents to use of the proceeds applicable to the Improvements on the Premises,
Landlord shall have the right to any remaining proceeds. In the event that
Tenant elects to rebuild and Landlord does not consent to the use of the
proceeds applicable to the Improvements on the Premises, Tenant shall have no
obligation to rebuild. This subparagraph shall have no effect on Tenant's
obligation to pay Rent pursuant to Article 3 of this Lease.
B. Disposition of Proceeds. Except as provided herein, all compensation
awarded or paid upon such total or partial taking of the land comprising the
Premises shall belong to and be the property of the Landlord unless Tenant is
permitted by law (at the same time as Landlord is permitted to assert its claim)
to assert a claim against the condemning authority enforcing the condemnation
for losses sustained by the Tenant as a result of the condemnation in which case
Tenant shall have a right to those proceeds. In the event Tenant is not entitled
to assert a separate claim, Landlord and Tenant shall jointly file a claim
asking for separate awards with respect to their respective interests. If the
condemning authority will not establish separate awards, and Landlord and Tenant
cannot agree upon the distribution and use of a unified award, the dispute shall
be submitted to arbitration in accordance with the rules of the American
Arbitration Association.
C. Commencement of Condemnation. Landlord agrees that it will not commence
a condemnation proceeding during the Term of the Lease without Tenant's consent.
Landlord further agrees that it will not solicit, direct or support a
condemnation by another authority during the Term of the Lease without Tenant's
consent.
D. Condemnation Process. Landlord and Tenant acknowledge that Tenant has
been issued a facility permit, Exhibit 2, for Tenant's operations at the Demised
Premises. In the event Tenant determines that the value offered by the
condemning authority does not, in Tenant's discretion, reflect the value of this
permit, Tenant reserves the right, at Tenant's cost and expense, to
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challenge the valuation of the Property. If Tenant pursues a challenge, Tenant
shall make best efforts to prevent a delay in Landlord's receipt of proceedings
and, if necessary, shall advance Landlord's proceeds in which case, Landlord
shall assign its rights in the condemnation to Tenant.
ARTICLE 13
INDEMNIFICATION
Section 13.01. Tenant's Indemnification of Landlord Against Liability
Tenant hereby releases, holds harmless and agrees to defend and indemnify
Landlord with respect to all actions, causes of action, obligations, expenses,
liabilities, losses, penalties, fines, fees (including counsel fees and
reasonable costs of investigation and defense) and costs, claims, suits and
damages for personal injury, property damage and violation of any federal,
state, county, or local law, statute, regulation, rule or ordinance which
Landlord may incur, pay out, be exposed to and/or other be responsible for which
arises from, or is related to the Premises, that is caused by Tenant's conduct,
inaction, condition or discharge that: (1) occurs during the Term of the Lease
and is a result of Tenant's activities on the Premises or use, non-use or
maintenance of the Premises; or (2) any use, non-use or maintenance of the
Premises in violation of the terms of the Lease; or (3) any negligence, willful
misconduct of Tenant, or intentional acts by Tenant, its agents, employees,
invitees, congregates, contractors, officers or directors; or (4) any breach or
default by Tenant of this Lease or failure by Tenant to perform any of its
obligations under the Lease. This indemnification is not assignable.
Section 13.02. Landlord's Indemnification of Tenant Against Liability
Landlord hereby releases, holds harmless and agrees to defend and
indemnify Tenant with respect to all actions, causes of actions, obligations,
expenses, liabilities, losses, penalties, fines, fees (including counsel fees
and reasonable costs of investigation and defense) and costs, claims, suits and
damages for personal injury, property damage and violation of any federal,
state, county or local law, statue, regulation, rule or ordinance which Tenant
may incur, pay out, be exposed to and/or otherwise
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be responsible for which arises from, or is related to the Property, that occurs
as: (1) a result of Landlord's activities on the Property, including the
Premises, or (2) arises or is related to the operation and maintenance or
failure to operate or maintain the Groundwater Recovery System; or (3) a result
of any negligence, willful misconduct of Landlord, or intentional acts by
Landlord, its agents, employees, invitees, congregates, contractors, officers or
directors; or (4) any breach or default by Landlord of this Lease or failure by
Landlord to perform any of its obligations under the Lease. This indemnification
is not assignable except as provided at Article 15.
ARTICLE 14
LANDLORD'S REMEDIES IN EVENT OF TENANT'S DEFAULT OR BANKRUPTCY
Section 14.01. Events of Default
Tenant shall be in default of this Lease if any one or more of the
following events (referred to herein as "Events of Default") occurs:
A. Tenant defaults in the payment of Annual Rent and/or Additional Rent
and such defaults continues for thirty (30) days after notice.
B. Except as set forth in Subparagraph A above, Tenant defaults in the
observance or performance of any covenant or provision of this Lease and such
default continues for sixty (60) days after notice of such default from Landlord
provided, however, if such default cannot by its nature be cured within such
sixty (60) day period, no event of default shall be deemed to exist as long as
Tenant has commenced curing the same within such sixty (60) day period and
diligently prosecutes the cure.
C. Tenant shall make an assignment for the benefit of creditors or shall
assign or sublet, except as permitted hereunder.
D. A voluntary petition is filed by Tenant under any laws for the purpose
of adjudication of Tenant as a bankrupt or the extension of the time of payment,
composition, arrangement, adjustment, modification, settlement or satisfaction
of the liabilities of Tenant, or the
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reorganization of Tenant under the Bankruptcy Act of the United States or any
future laws of the United States having the same general purpose, or receivers
appointed for Tenant by reason of insolvency or alleged insolvency of Tenant; an
involuntary petition shall be filed against Tenant for such relief and shall not
be dismissed within sixty (60) days.
Section 14.02. Termination of Lease
Landlord, notwithstanding any other right or remedy it may have under the
Lease, at law or in equity, may, in an event of Default and Tenant's failure to
cure as set forth above, terminate the Lease, by written notice to Tenant
setting forth the basis therefor and effective not less than ninety (90) days
thereafter, whereupon, upon such effective date, this Lease shall terminate
(with the same effect as if such date were the date fixed herein for the natural
expiration of the Term), Tenant shall surrender the Premises to Landlord. In
such event, Landlord may, without further notice, enter the Premises, repossess
the same and dispossess Tenant and all other persons and property therefrom.
Section 14.03. Landlord's Damages
If Landlord so terminates the Lease, Tenant shall pay Landlord, as damages
in a sum equal to the Annual Rent, when the same would have been payable over
the remaining Term if not for such termination.
Section 14.04. No Waiver
The failure of either Party to seek redress for violation of, or to insist
upon the strict performance of any covenant or condition of this Lease, shall
not prevent a subsequent act which would have originally constituted a violation
from having all the force and effect of an original violation. No provision of
this Lease shall be deemed to have been waived by either Party unless such
waiver be in writing signed by the Party against whom waiver is sought.
ARTICLE 15
ASSIGNMENT AND SUBLETTING
Section 15.01. Right of Assignment
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At any time during the Term Tenant may, upon not less than ten (10) days
written notice to Landlord, sublet or assign this Lease to an Affiliate of the
Tenant without consent of the Landlord. Affiliate shall be defined as a parent
or wholly owned subsidiary of the Tenant. As to Landlord, Tenant shall retain
responsibility for Tenant's obligations hereunder, notwithstanding any
assignment or subletting. All other assignments or sublettings require
Landlord's approval in Landlord's sole discretion.
A. In the event of any sublease or assignment, Tenant shall remain fully
and primarily liable for all terms and conditions of the Lease as a principal
and not as a surety. In the event of an assignment, the assignee, other than a
Leasehold Mortgagee, shall assume all of the Tenant's obligations under the
Lease.
Section 15.02. Landlord's Right to Collect Rent
If this Lease is assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may upon prior notice
to Tenant at any time and from time to time, collect Annual Rent and Additional
Rent and all the charges from the assignee, sublessee or occupant and apply the
net amount collected to such sums reserved herein.
ARTICLE 16
EFFECTIVE DATE
Section 16.01. Effective Date
This Lease shall be executed on the Closing Date by the Landlord and shall
take effect on the Closing Date as defined in the Agreement for Transfer of
Ownership to which this Lease is an Exhibit.
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ARTICLE 17
EXONERATION OF INDIVIDUALS
Section 17.01. Exoneration
If the Landlord or any successor in interest shall be an individual, joint
venture, trust, tenancy in common, limited liability company, firm or
partnership, general or limited there shall be no personal liability on such
individual or on any member of such joint venture, limited liability company,
trust, tenancy in common, firm or partnership in respect to any of the covenants
or conditions of this Lease. The Tenant shall look solely to the equity of the
Landlord in the Property and not its directors, shareholders, officers, members,
employees or agents in the event of a breach by the Tenant of any of the
covenants or conditions of this Lease or any liability arising out of the
Tenant's use or occupancy of the Premises.
ARTICLE 18
NOTICES
Section 18.01. Notices
All notices, demands and requests which may or are required to be given by
either party to the other shall be in writing. All notices, demands and requests
by the Landlord to the Tenant shall be sent by either (i) United States
Certified Mail, return receipt requested, postage prepaid; (ii) nationally
recognized overnight carrier; (iii) one day U.S. Post Office delivery; or (iv)
personal receipted delivery addressed to the Tenant, at the address set forth
above Attention: Xxxxxx X. Xxxxx or at such other place as the Tenant may from
time to time designate in a written notice to the Landlord. Additionally, copies
of all notices to Tenant shall be sent to: Xxxxxxxx X. Xxxxxxx, Esq., x/x
Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.C., 000 Xxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000. All notices, demands and requests by the Tenant to the Landlord shall be
sent by (i) United States Certified Mail, postage prepaid, return receipt
requested, (ii) nationally recognized overnight carrier;
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(iii) one day U.S. Post Office delivery; or (iv) personal receipted delivery
addressed to the Landlord as follows: Business Administrator, Township of
Woodbridge, Xxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000. Additionally, copies of all
notices to Landlord shall be sent to Director of Law, Township of Woodbridge,
Xxx Xxxx Xxxxxx, Xxxxxxxxxx, XX 00000. Notices, demands and requests which shall
be served upon the Landlord or the Tenant in the manner aforesaid shall be
deemed sufficiently served or given for all purposes hereunder five (5) days
after such notice, demand or request shall be mailed or on the date of personal
delivery, whichever is applicable.
ARTICLE 19
SECURITY
Section 19.01. Security
Landlord agrees to provide security for the Term of the Lease and
thereafter, until Tenant advises Landlord that such measures are no longer
required, in accordance with the requirement of Tenant's facility permit issued
pursuant to the Resource Conservation and Recovery Act. Not withstanding any
other provision herein, this Section shall survive the breach, termination or
end of the Term of this Lease.
ARTICLE 20
QUIET ENJOYMENT - CONVEYANCE BY
LANDLORD-REPRESENTATIONS BY THE LANDLORD
Section 20.01. Quiet Enjoyment
Tenant, upon paying the Annual Rent and all Additional Rent and other
charges herein provided for and performing all covenants and conditions of this
Lease, on its part to be performed, shall quietly have and enjoy the Premises
during the term, without hindrance or molestation by Landlord or any other
person claiming through Landlord.
Section 20.02. Conveyance by Xxxxxxxx
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Xxxxxxxx shall not convey the Premises during the Term in accordance with
the Agreement For Transfer of Ownership to which this Lease is an Exhibit.
Section 20.03. Representations and Warranties of Landlord
Landlord represents and warrants that to the best of its knowledge:
A. Landlord has good and marketable title in fee simple to the Premises,
free of all liens, mortgages, pledges, encumbrances, security interest, leases,
conditional sales agreements or charges of any kind or character.
B. The execution and delivery of this Lease and the consummation of the
transaction contemplated hereby will not result in a violation of any
requirement or a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, permit, franchise,
agreement or other instrument to which Landlord is a party, or by which Landlord
or the Premises may be bound.
C. There are no condemnation, zoning or other land use proceedings
(including, without limitation, abatement proceedings), either instituted or
planned to be instituted, which would affect in any way the use and operation of
the Premises or the value of the Premises.
D. There are no contemplated special assessments affecting the Premises.
E. As shown on Exhibit 3 annexed hereto, there is an unfettered and
unimpeded means of ingress and egress to the Premises across the Property and
such ingress and egress shall remain unimpeded during the entire Term. Landlord
agrees to execute in recordable form for the benefit of the Premises a
non-exclusive ingress and egress easement over the area shown on Exhibit 3 and
labeled ingress and egress easement thereon. The easement shall include a
requirement that Landlord or its successors or assigns maintain the easement
area. Landlord shall retain a right to reconfigure the easement so long as any
reconfiguration provides Tenant with an equivalent means of ingress and egress.
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ARTICLE 21
ESTOPPEL CERTIFICATE
Either party hereto shall, within twenty (20) days after notice by the
other party, execute, acknowledge and deliver to such other party or any other
party specified by such other party, a statement in writing certifying (i) that
this Lease is unmodified and in full force and effect (or if there are
modifications, that this Lease, is in full force and effect as modified, and
stating the modifications) and (ii) the date to which the Annual Rent and
Additional Rent payable by Tenant hereunder has been paid, and (b) whether or
not to the best knowledge of the signer of the certificate, the other party is
in default in performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying in detail each such default.
ARTICLE 22
[INTENTIONALLY LEFT BLANK]
ARTICLE 23
SURRENDER
Section 23.01. Conditions of Surrender
Except as set forth in this Lease, on the last day or sooner termination
of the Lease, Tenant shall quit and surrender the Premises broom-clean without
damage, except reasonable wear and tear, together with all additions and
Improvements which may have been made in, on, or to the Premises consistent with
Article 7 herein In the event Tenant remains in possession of the Premises after
the expiration of the Term created hereunder, and without the execution of a new
lease, Tenant shall be deemed to be holding over and the rate of use and
occupation shall be equal to the twice monthly payment of Annual Rent payable
for the last month of the Term, or any renewal thereof, plus any Additional Rent
as calculated on a month by month basis.
Section 23.02. Tenant's Property
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Any property left at the Premises by the Tenant at the expiration of the
Term or, when Tenant vacates the Premises, shall be deemed abandoned. Landlord
may sell or dispose of said property in any manner it deems appropriate.
ARTICLE 24
LEASEHOLD MORTGAGE
Section 24.01. Leasehold Mortgage
In the event Tenant gives a leasehold mortgage or collaterally assigns the
Lease to a lender ("Leasehold Mortgagee") so long as there is a Leasehold
Mortgage outstanding or the Lease is collaterally assigned, the Parties agree as
follows:
A. If the holder of a Leasehold Mortgage shall have registered with
Landlord by notice specifying the name and address of such Leasehold Mortgagee,
Landlord thereafter shall give to such Leasehold Mortgagee a copy of each notice
of default for which provision is made under this Lease at the same time as and
whenever such notice shall be given by Landlord to Tenant, such copy to be
addressed to such Leasehold Mortgagee at the address last furnished to Landlord
as provided hereinabove. In the event of any such registration, Landlord shall
not be entitled to serve a notice of cancellation and termination upon Tenant
unless a copy of any prior notice of default shall have been given to such
Leasehold Mortgagee as hereinabove provided and the time as hereinafter
specified for the curing of such default shall have expired without the same
having been cured. The performance by any such Leasehold Mortgagee of any
condition or agreement on the part of Tenant to be performed hereunder will be
deemed to have been performed with the same force and effect as though performed
by Tenant.
B. Landlord will accept performance by the Leasehold Mortgagee, within the
following periods (time being of the essence) of any term, covenant and
condition on Tenant's part to be performed hereunder, with the same force and
effect as though timely performed by Tenant (provided that under no
circumstances shall the Leasehold Mortgage be required to so perform):
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(i) As to any Annual Rent, Additional Rent and all other charges
payable hereunder within 30 days after notice of such default;
and
(ii) As to all other defaults hereunder, before the later of (a) 60
days after such notice, or (b) the time needed to effect such
cure if such default cannot be cured within such period and
Leasehold Mortgagee commences to so cure within such period
and diligently and continuously proceeds therewith.
Landlord acknowledges that Leasehold Mortgagee may not be able to effect
any cures until such time as Leasehold Mortgagee acquires title and possession
of the Premises through exercise of the remedies available to it under the
Leasehold Mortgage and agrees that the time periods described in (ii) above
shall be automatically extended so as not to commence running until the
Leasehold Mortgagee so acquires title and possession. The foregoing shall not
limit Tenant's right to cure under the Lease. Landlord further acknowledges that
Leasehold Mortgagee cannot be expected to cure and will not be required to cure
defaults which are personal to Tenant and not susceptible of cure by Leasehold
Mortgagee as a precondition to the rights of Leasehold Mortgagee hereunder.
C. Landlord shall not exercise its right to terminate this Lease, as
hereinbefore provided, during the time that the Leasehold Mortgagee, having
registered with Landlord pursuant to Section 24.01(A) above, shall require to
complete its remedies under the Leasehold Mortgage, provided, however,
(i) That the Leasehold Mortgagee proceeds, promptly and with due
diligence, with the remedies under its mortgage on the
leasehold estate and thereafter prosecutes and completes the
same with all due diligence; and
(ii) That the Leasehold Mortgagee shall pay to Landlord the Annual
Rent, Additional Rent, and all other charges required to be
paid by Tenant hereunder which have accrued and which shall
become due and payable during said period of time.
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D. Landlord shall also be obligated to give any notice of cancellation and
termination to the Leasehold Mortgagee, who shall have registered with Landlord
pursuant to Section 24.01(A) above, simultaneously with such notice being given
to Tenant. No such notice to Tenant shall be effective to terminate this Lease
if the Leasehold Mortgagee notifies Landlord in writing, within thirty (30) days
after receipt by the Leasehold Mortgagee of such notice of cancellation and
termination, that (i) the Leasehold Mortgagee, or any designee or nominee which
the Leasehold Mortgagee may designate or name in such notice, elects to lease
the Premises from the date of termination of this Lease (as specified in the
notice of cancellation and termination) for the remainder of the term of this
Lease, at the Rent, Additional Rent above, and other charges herein reserved,
and otherwise upon the same terms, covenants and conditions as are herein set
forth, with the same relative priority in time and in right as this Lease and
having the benefit of and vesting in the Leaschold Mortgagee, its designee or
nominee, of all of the rights, title, interest, powers and privileges of the
Tenant hereunder, and (ii) the Leasehold Mortgagee or such designee or nominee
further obligates itself to comply within sixty (60) days after delivery to
Landlord of such election: (a) to cure the default upon which such termination
was based (or in the case of a monetary default any delinquent payments are made
within thirty (30) days after the Tenant's time period to make the payment has
expired) and any other then existing defaults under this Lease, or in respect to
any default not capable of curing within such sixty (60) days, or which cannot
be cured without entry into possession, to proceed and effect cure with due
diligence following delivery of possession, (b) to pay to Landlord at the time
of execution and delivery of such new lease all Rent and Additional Rent and
other charges due under this Lease up to and including the date of commencement
of the term of such new lease, and (c) to pay to Landlord all expenses and
reasonable attorneys' fees incurred by Landlord in connection with any such
default and with the preparation, execution and delivery of such new lease.
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Upon compliance by the Leasehold Mortgagee, its designee or nominee,
within such time, Landlord shall thereupon execute and deliver such new lease
(the "New Lease") to the Leasehold Mortgagee, its designee or nominee, having
the same relative priority in time and in right as this Lease and having the
benefit of all of the right, title, interest, powers and privileges of the
Tenant hereunder in and to the Premises, including specifically an assignment of
Landlord's interest in and to any then existing sublease where the subtenant may
have attorney to Landlord and may have been recognized by Landlord and which, at
the time of cancellation or termination of this Lease, was prior in right to the
Leasehold Mortgage or which by separate agreement or by its terms had been
granted non-disturbance privileges. Landlord agrees that it will not modify or
amend any of the terms or provisions of any such sublease so assigned during the
period between the expiration or termination of this Lease and the execution and
delivery of the new lease.
Landlord shall not be obligated to deliver physical possession of the
Premises or the buildings and improvements on, under or above the Premises to
either the Leasehold Mortgagee or its designee or nominee. In the event,
however, that at the time the new lease is executed Tenant hereunder shall be in
possession of the Premises and of said buildings and improvements, Landlord, at
the request and expense of the Leasehold Mortgagee, its designee or nominee, as
the new tenant, will take all appropriate steps to remove Tenant from the
Premises and from said buildings and improvements, but shall not be liable to
such new tenant for any damages resulting from any delay of Tenant in vacating
the Premises, or from any failure to vacate them and there shall be no abatement
of rent by reason thereof.
E. A Leasehold Mortgagee may enforce its rights under its mortgage and
acquire title to the leasehold estate in any lawful way, and pending foreclosure
of such Leasehold Mortgage take up possession of the Premises; subject, however,
to the terms and conditions of this Lease and the rights of the holder of any
Leasehold Mortgage that is senior in lien to the Leasehold Mortgage in question.
During such time as a Leasehold Mortgagee is the owner and holder of the
leasehold estate and
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Tenant's interest hereunder, whether by foreclosure or otherwise, such interest
acquired hereunder shall be subject to all of the terms, conditions and
provisions of this Lease.
F. Landlord shall upon Tenant's reasonable request execute, acknowledge
and deliver to Tenant and/or each Leasehold Mortgagee an agreement prepared at
the cost and expense of Tenant and in form satisfactory to such Leasehold
Mortgagee, confirming all or any of the provisions of this Section.
G. The granting of a Leasehold Mortgage by Tenant shall not be deemed to
constitute an assignment or transfer of this Lease or of the leasehold estate
hereby created, nor shall any Leasehold Mortgagee, as such, be deemed to be an
assignee or transferee of this Lease or of the Leasehold Estate hereby created
so as to require such Leasehold Mortgagee, as such, to assume the performance of
any of the terms, covenants, or conditions on the part of the Tenant to be
performed hereunder, but the purchaser at any sale of this Lease and of the
leasehold estate hereby created in any proceedings for the foreclosure of any
Leasehold Mortgage, or the assignee or transferee of this Lease and of the
leasehold estate hereby created under any instrument of assignment or transfer
in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to be an
assignee or transferee, and shall be deemed to have agreed to perform all of the
ten-ns, covenants, and conditions on the part of the Tenant to be performed
hereunder from and after the date of such purchase and assignment, but only for
so long as such purchaser or assignee is the owner of the leasehold estate.
H. Any Leasehold Mortgagee or other acquirer of the leasehold estate of
Tenant pursuant to foreclosure, assignment in lieu of foreclosure of a tenant or
other proceedings may, upon acquiring Tenant's leasehold estate, without further
consent of Landlord, sell and assign the leasehold estate on such terms and to
such persons and organizations as are acceptable to such Leasehold Mortgagee or
acquirer and thereafter be relieved of all obligations under this Lease.
I. Notwithstanding any other provision of this Lease, any sale of this
Lease and of the leasehold estate hereby created in any proceedings for the
foreclosure of any Leasehold Mortgage, or
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the assigmuent or transfer of this Lease and of the leasehold estate hereby
created in lieu of the foreclosure of any Leasehold Mortgage, shall be deemed to
be a permitted sale, transfer, or assignment of this Lease and of the leasehold
estate hereby created.
J. Nothing herein contained shall require any Leasehold Mortgagee or its
designee as a condition to its exercise of its rights hereunder to cure any
default of Tenant not reasonably susceptible of being cured by such Leasehold
Mortgagee or its designee in order to comply with the provisions of this
Article. The financial condition of any Leasehold Mortgagee or successor to
Tenant's interest under this Lease or a new lease shall not be a consideration
in the determination of the reasonable susceptibility of cure of any default
hereunder. No default, the cure of which and no obligation of Tenant, the
performance of which, requires possession of the Premises shall be deemed
reasonably susceptible of cure or performance by any Leasehold Mortgagee or
successor to Tenant's interest under this Lease or a new lease not in possession
of the Premises, nor shall any Leasehold Mortgagee be required to cure the
bankruptcy, insolvency, or any related or similar condition of Tenant.
K. No payments made to Landlord by a Leasehold Mortgagee shall constitute
an acknowledgement that such payment was, in fact, due under the terms of this
Lease.
L. In the event of any proceeding by either Landlord or Tenant under the
United States Bankruptcy Code as now or hereafter in effect:
(i) if the Lease is rejected in connection with a bankruptcy
proceeding by the Tenant or a trustee in bankruptcy for the
Tenant, such rejection shall be deemed an assignment by Tenant
to the Leasehold Mortgagee (or if there is more than one
Leasehold Mortgagee, to the one highest in priority) of the
Leasehold Estate and all of Tenant's interest under this
Lease, in the nature of an assignment in lieu of foreclosure,
and this Lease shall not terminate and the Leasehold Mortgagee
shall have all the rights of the Leasehold Mortgagee
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under this Lease, as if such bankruptcy proceeding had not
occurred, unless such Leasehold Mortgagee shall reject such
deemed assignment by notice in writing to Landlord within
thirty (30) days following rejection of the Lease by Tenant or
Tenant's trustee in bankruptcy. If any court of competent
jurisdiction shall determine that this Lease shall have been
terminated notwithstanding the terms of the preceding sentence
as a result of rejection by Tenant or the Trustee in
connection with any such proceeding, the rights of any
Leasehold Mortgagee to a new lease from Landlord pursuant to
this Section 24.01 hereof shall not be affected thereby.
(ii) If the Lease is rejected by Landlord or by Landlord's trustee
in bankruptcy;
(a) Tenant shall not have the right to treat this Lease as
terminated except with the prior written consent of all
Leasehold Mortgagees; and the right to treat this Lease as
terminated in such event shall be deemed assigned to each and
every Leasehold Mortgagee, whether or not specifically set
forth in any such Leasehold Mortgage, so that the concurrence
in writing of Tenant and each Leasehold Mortgagee shall be
required as a condition to treating this Lease as terminated
in connection with such proceeding.
(b) If this Lease is treated as not having been terminated in
accordance with subsection (i) above, then this Lease shall
continue in effect upon all the terms and conditions set forth
herein, including Annual Rent, Additional Rent, and all
options to renew, but excluding requirements that are not then
applicable or pertinent to the remainder of the term hereof.
Thereafter, Tenant or its successors shall be entitled to
offset against Annual Rent and Additional Rent payable
hereunder any damages arising from such rejection and any such
offset properly made shall not be deemed a default under this
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Lease. The lien of any Leasehold Mortgage then in effect shall
extend to the continuing possessor rights of Tenant following
such rejection with the same priority with respect to each
such Leasehold Mortgage as it would have enjoyed had such
rejection not taken place.
M. Notwithstanding anything to the contrary set forth in this Lease, in
the event the Leasehold Mortgagee takes possession of the Premises, forecloses
on its leasehold mortgage, or takes an assignment of the Lease from the Tenant,
the Leasehold Mortgagee shall be entitled to surrender the Premises to the
Landlord. In the event on the date of the surrender of the Premises all of the
Rent and Additional Rent have been paid up through and including the date of
surrender, and the Premises are delivered vacant, then the Leasehold Mortgagee
shall have no further liability under this Lease. Nothing set forth herein shall
be deemed to release the Tenant from any default under this Lease.
N. The Leasehold Mortgagee shall have no right to assign the Lease unless
Landlord consents and shall not assign the Lease without Landlord's written
consent.
O. The Leasehold Mortgagee shall have no right to delay payment.
ARTICLE 25
MISCELLANEOUS
Section 25.01. Submission of Lease
Submission of this instrument for examination or signature by Tenant does
not constitute a reservation of or option to Lease, and it is not effective as a
Lease or otherwise until execution and delivery by both Landlord and Tenant.
Section 25.02. Governing Law
This Lease shall be governed by and construed in accordance with the laws
of the State of New Jersey ("State") and shall be deemed to have been created by
both Parties.
Section 25.03. Broker
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Tenant and Landlord warrants and represents that they have dealt with no
realtors, brokers or agents in connection with the negotiation of this Lease and
the renting of the Premises. Should any claims be made for brokerage commissions
through or on account of dealings of one Party or its agents or representatives,
that Party shall indemnify, defend and hold the other Party harmless against any
liability in connection therewith.
Section 25.04. Savings Clause
It is the desire and intent of the Parties that the provisions of this
Lease shall be enforced to the fullest extent permitted by law. Accordingly, the
invalidity or unenforceability of any provision of this Lease shall not affect
the validity or enforceability of any other provision of this Lease, which shall
remain in full force and effect, nor shall the invalidity or unenforceability of
any portion of any provision of this Lease affect the validity or enforceability
of the balance of such provisions.
Section 25.05. Signs
Upon receipt of written approval from Landlord, which shall not be
unreasonably delayed, conditioned or withheld, Tenant shall have the right to
install exterior signs (including pylon signs) on the Premises which conform to
all applicable laws and ordinances. Tenant shall maintain all signs on the
Premises in a good state of repair and save the Landlord harmless from any loss,
cost or damage as a result of the erection, maintenance, existence of the same,
and shall repair any damage which shall have been caused by the erection,
existence or maintenance of such signs.
Section 25.06. Non-Merger; No Fee Estate Subordination
There shall be no merger of this Lease, or of the leasehold estate created
by this Lease, with the fee estate in the Premises by reason of the fact that
this Lease, the leasehold estate created by this Lease, or any interest in this
Lease or in any such leasehold estate, may be held, directly or indirectly, by
or for the account of any person who shall own the fee estate, and no such
merger shall occur unless and until all persons at the time having an interest
in the fee estate in the Premises and all persons (including the Leasehold
Mortgagee) having an interest in this Lease, or in the leasehold
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estate created by this Lease, shall join in a written instrument effecting such
merger and shall duly record the same.
Section 25.07. Parties Bound
The covenants, conditions and agreements contained in this Lease shall
bind and inure to the benefit of the Landlord and Tenant and their respective
legal representatives, heirs, successors and, except as specifically provided in
this Lease, their assigns.
Section 25.08. Number and Gender
For purposes of this Lease, the singular shall include the plural and the
plural shall include the singular, and the masculine shall include the feminine
and the neuter, as the context may require.
Section 25.09. Captions
The captions contained herein are for the convenience of the parties only.
They do not in any way modify, amplify, alter or give full notice of the
provisions hereof.
Section 25.10. Counterparts
This Lease may be executed in several counterparts, each of which shall be
deemed an original, and such counterparts shall constitute but one and the same
instrument.
Section 25.11. No Surrender
Except as provided in this Lease, no surrender to Landlord of this Lease
or of the Premises, or any part thereof, or of any interest therein, shall be
valid or effective unless agreed to and accepted in writing by Landlord and
consented to in writing by any and all Mortgagees, and no act or omission by
Landlord or any representative or agent of Landlord, other than such a written
acceptance by Landlord, consented to as aforesaid, shall constitute an
acceptance of any such surrender.
ARTICLE 26
CONFIDENTIAL INFORMATION
Section 26.01. Confidential Information
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To the extent permitted by law, any Party may designate any data,
information, reports or documents provided to the other as "Confidential
Information". Except as required by applicable law or action of governmental
agents acting under color of authority, neither Party shall, without the written
consent of the other Party, disclose any Confidential Information to any third
party.
(INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF the Landlord and Tenant have caused these presents to
be signed by their duly authorized agent on the day and year above written.
SIGNED AND AGREED TO BY:
Date Signed: WOODBRIDGE TOWNSHIP
/s/ 6/8/00 By: /s/
------------------------------ ------------ ----------------------------
Xxxx X. Xxxxx, Municipal Clerk Xxxxx X. XxXxxxxxx, Mayor
CP CHEMICALS, INC.
Attest: Seller
/s/ 4/18/00 By /s/
------------------------------ ------------ ----------------------------
Secretary Senior Vice President &
Chief Regulatory Officer
EXHIBIT LIST*
Exhibit 1 Description of Premises
Exhibit 2 RCRA Permit
Exhibit 3 Site Map
Exhibit 4 Description of Groundwater Recovery System
Appendix 1 - As-Built Site Plan - 1 of 3 and Details - 2 of 6
prepared by Xxxxx Associates, Inc.
Appendix 2 - Wastewater Treatment Plant Layout - 2 of 3 and
Wastewater Treatment Plant P& I - 3 of 3 prepared by Xxxxx
Associates, Inc.
Appendix 3 - Indirect Discharge Permit
Appendix 4 - Deed Notice
Appendix 5 - Easement
* Exhibits omitted
