LEASE AND ACCESS AGREEMENT
This Lease and Access Agreement ("Lease") is made and entered into this
12th day of August, 1996, by and between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd., a Delaware
limited partnership, Inc. ("Lessor"), and Newpark Resources, Inc. ("Lessee"),
with reference to the following facts:
A. Concurrently with the execution and delivery of this Lease, pursuant
to an Asset Purchase and Lease Agreement (the "Purchase Agreement") dated
June 5, 1996, by and among (i) Sanifill, Inc., a Delaware corporation
("Sanifill") of which Lessor is an indirect wholly owned subsidiary, Lessor,
NOW Disposal Holding Co., a Delaware corporation and an indirect wholly-owned
subsidiary of Sanifill ("Holdco"), and (ii) Lessor, Lessee has purchased from
Holdco all of the equity interests in NOW Disposal Operating Co., a Delaware
corporation ("Disposeco"), and has purchased or is leasing from Lessor the
Included Assets (as that term is defined in the Purchase Agreement) used in
the Acquired Business (as that term is defined in the Purchase Agreement).
Lessee may assign its rights and delegate its duties under this Lease to a
wholly-owned subsidiary ("Subsidiary"), provided that no such assignment of
rights or delegation of duties shall relieve Lessee of its obligations under
this Lease. If such assignment is made, references to Lessee in this Lease
shall be deemed to refer to Subsidiary, or to Lessee and Subsidiary, as
appropriate.
B. Concurrently with the execution and delivery of this Lease, Lessee
has guaranteed the obligations of Disposeco under the NOW Disposal Agreement
(the "Disposal Agreement") dated June 4, 1996, among Disposeco, Sanifill and
Lessor.
▇. ▇▇▇▇▇▇ is the owner of the real property, including all buildings
thereon and improvements thereto, located in the Parish of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
State of Louisiana, described more particularly in Exhibit "A" hereto (the
"Premises").
D. This Lease sets forth the terms and conditions on which Lessee is
subleasing from Lessor the portion (and no other portion) (the "Dock") of the
Premises described in Exhibit "B" attached hereto. The Dock is part of the
Included Assets and constitutes one of the Landfarm Docks referred to in
Paragraph 13.1 of the Purchase Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by both parties, the parties hereby agree as follows:
1. LEASE OF DOCK.
Lessor hereby leases the Dock to Lessee, and Lessee hereby leases
the Dock from Lessor, on the terms and conditions set forth in this Lease.
Subject to the terms of this Lease, Lessor hereby guarantees to Lessee the
quiet enjoyment and peaceable possession of the Dock for the entire term of
this Lease.
2. WARRANTY BY LESSOR.
Lessor hereby warrants and represents to Lessee that Lessor is the
lawful owner of the Premises.
3. TERM.
The term of this Lease commences on the date hereof ("Commencement
Date") and shall continue for a period of twenty-five (25) years, i.e., until
August 12, 2021 ("Termination Date"), unless otherwise sooner terminated in
accordance with the provisions of this Lease. The foregoing notwithstanding,
(a) Lessee (but not Lessor) shall have the right to terminate this Lease at
any time upon not less than ten days' written notice to Lessor, and (b) this
Lease shall terminate automatically upon termination of the Disposal
Agreement.
4. RENT.
All rental for the Dock for the entirety of the term of this Lease,
to and including the Termination Date, is included in the Purchase Price, as
that term is defined in the Purchase Agreement, that has been paid by Lessee,
the receipt and sufficiency of which are hereby expressly acknowledged by
Lessor. The Purchase Price paid by Lessee further includes payment in full,
for the entire term of this Lease, of all other amounts payable by Lessor on
account of the Premises, however characterized.
5. ACCESS TO DOCK.
The execution of this Lease notwithstanding, Lessor shall have the
right of access to the Dock and, in cooperation with Lessee, shall have the
right to operate the Dock, in each case solely for the purpose of performing
their obligations under the Disposal Agreement. Subject to the terms of the
Disposal Agreement, Lessor shall pay all costs and expenses of operating the
Dock in connection with the Disposal Agreement. The parties shall indemnify
and hold harmless each other with respect to obligations arising in
connection with the operation of the Dock to the extent and in the manner
provided in Article IX of the Disposal Agreement. If, at any time, Lessor
permanently ceases to use the Premises for disposal of waste in connection
with the Disposal Agreement, this right of access shall terminate.
6. MAINTENANCE AND OPERATING EXPENSES.
Lessor shall pay all of the costs and expenses incurred in the
repair, maintenance or upkeep (including but not limited to taxes, utilities,
and insurance) of the Dock, in further consideration of its receipt of the
Purchase Price. Without limiting the generality of the foregoing, Lessor
shall pay all costs and expenses relating to the repair, maintenance, upkeep
and insuring of any improvements on the Dock, when such improvements are
erected by Lessor. Lessee shall pay all costs and expenses relating to the
repair, maintenance, upkeep and insuring of any improvements on the Dock,
when such
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improvements are erected by Lessee. Lessee shall obtain the written consent
of Lessor prior to erecting any improvements on the Dock.
7. USE OF DOCK.
Lessee may use the Dock for any lawful purpose.
8. ASSIGNMENT AND SUBLETTING.
Lessee may assign this Lease or further sublet or assign all or any
part of the Dock without Lessor's prior written consent, and Lessor may
assign this Lease without Lessee's prior written consent; provided, however,
that no such subleasing or assignment shall relieve Lessor or Lessee of any
of its obligations hereunder.
9. DISPUTE RESOLUTION.
9.1 NEGOTIATION OF DISPUTES. In the event of any dispute or
disagreement arising out of or relating to the implementation and performance
of this Lease, the parties agree to attempt to resolve such dispute in good
faith. Should a resolution of such dispute not be obtained within 15 days
after the origination of the dispute, either party may submit the dispute to
arbitration in accordance with the provisions of this Paragraph 10 by written
notice to the other party.
9.2 GENERAL ARBITRATION. Any claim, dispute or controversy arising
out of or relating to this Lease or the breach thereof not settled in
accordance with the provisions of Section 9.1 shall be submitted to binding
arbitration by the American Arbitration Association (the "AAA") for
arbitration in Houston, Texas, in accordance with the Commercial Arbitration
Rules of the AAA then in effect. There shall be three arbitrators, with each
party selecting one. The third arbitrator shall be selected by the two
party-selected arbitrators and shall be the chairperson of the panel. The
party requesting arbitration shall name its arbitrator in the demand for
arbitration and the other party shall name its arbitrator within 30 days
after receipt of the arbitration demand. The third arbitrator shall be named
within 30 days after the appointment of the second arbitrator. The AAA shall
be empowered to appoint any arbitrator not named in accordance with the
procedure set forth herein. The decision of the arbitrators shall be final
and binding upon the parties without the right to appeal to the courts. The
award rendered in arbitration shall be final and judgment thereon may be
entered by any court having jurisdiction thereof. The costs and expenses of
the arbitration (including reasonable attorney's fees) will be borne by the
losing party, unless the arbitrators determine that it would be manifestly
unfair to honor this provision and determine a different allocation of costs.
9.3 APPLICABLE LAW AND ARBITRATION ACT. This agreement to
arbitrate shall be enforceable in either federal or state court. The
enforcement of this agreement to arbitrate and all procedural aspects of
this agreement to arbitrate, including, without limitation, the
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construction and interpretation of this agreement to arbitrate, the scope of
the arbitrable issues, allegations of waiver, delay or defenses as to
arbitrability, and the rules governing the conduct of the arbitrations, shall
be governed by and construed pursuant to the United States Arbitration Act.
In deciding the substance of any such claim, dispute or disagreement, the
arbitrators shall apply the substantive laws of the State of Texas; provided,
however, that the arbitrators shall have no authority to award punitive
damages under any circumstances regardless of whether such damages may be
available under Texas law, the parties hereby waiving their right, if any, to
recover punitive damages in connection with any such claims, disputes or
disagreements.
9.4 CONTINUATION OF PERFORMANCE. In the event of a dispute arising
under this Lease, the parties shall continue performance of their respective
obligations hereunder pending resolution of the dispute.
10. NOTICES.
All notices and demands which may or are to be required or
permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by the Lessor to Lessee shall be given in
writing and delivered in person or sent by overnight delivery service or
United States Mail, postage prepaid, addressed to the Lessee at the Dock, and
to the address hereinbelow, or to such other place as Lessee may from time to
time designate in a notice to the Lessor. All notices and demands by the
Lessee to Lessor shall be given in writing and delivered in person or sent by
overnight delivery service or United States Mail, postage prepaid, addressed
to the Lessor at the address, set forth herein, and to such other person or
place as the Lessor may from time to time designate in a notice to the Lessee.
To Lessor at: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W. ▇▇▇▇▇▇▇ ▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
To Lessee at: Newpark Resources, Inc.
Lakeway Center
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
11. MISCELLANEOUS.
11.1 BINDING EFFECT. This Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
11.2 COUNTERPARTS. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.3 HEADINGS. Captions and paragraph headings used herein are
for convenience only and are not a part of this Lease and shall not be used
in construing it.
11.4 AMENDMENTS; WAIVERS. No provision or term of this Lease or
any agreement contemplated herein between the parties hereto may be
supplemented, amended, modified, waived or terminated except in a writing
duly executed by the party to be charged. No waiver of any of the provisions
of this Lease shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided. Failure of a party
to insist on strict compliance with any of the terms and conditions of this
Lease shall not be deemed a waiver of any such terms and conditions.
11.5 ENTIRE AGREEMENT. This Lease, the Purchase Agreement and the
Disposal Agreement comprise the entire agreement of the parties and supersede
all earlier understandings of the parties with respect to the subject matter
hereof.
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IN WITNESS WHEREOF the parties have executed and delivered this Lease as
of the date first set forth above.
LESSOR:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, LTD.
By SANIFILL GP HOLDING CO., INC., its
General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Treasurer
LESSEE:
NEWPARK RESOURCES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, President
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EXHIBIT A
ALL OF THAT CERTAIN PARCEL OF LAND situated in Section Fourteen (14),
Township Ten (10) South, Range Two (2) West, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Parish,
Louisiana, and more fully described as follows, to-wit:
COMMENCING at the intersection of the West line of Section Fourteen (14) with
the centerline of the Southern Pacific Railroad Company's right-of-way,
thence 918.8 feet Northeasterly along the West line of Section Fourteen (14),
thence East 595 feet to the point of beginning;
THENCE East to the Mermentau River.
EXHIBIT B
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PLAT OF SURVEY
SHOWING DOCK AREA
TO BE LEASED TO
NEWPARK ENVIRONMENTAL SERVICES, INC.
FROM
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LTD.
OF PROPERTY LOCATED IN SECTION ▇▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
[MAP]
I HEREBY CERTIFY THAT THIS
PLAT REPRESENTS AN ACTUAL
GROUND SURVEY AND ENCROACH-
MENTS SHOWN ARE THOSE THAT
APPEAR VISUALLY AND THOSE
THAT HAVE BEEN DETERMINED
FROM INFORMATION PROVIDED
BY OWNER.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
REG. LAND SURVEYOR
▇▇▇▇▇▇▇▇ & LAFAYETTE, LA [SEAL]
FLD. BK. N
DATE: JULY 29, 1996
SCALE: 1" -- 80'
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