EXHIBIT C
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LEASE AND OPTION AGREEMENT
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This LEASE is by and between WASTE U.S.A., INC., a Vermont corporation with
a place of business in Coventry, Vermont and its successors and assigns
("Lessor"), and NEW ENGLAND WASTE SERVICES OF VERMONT, INC., a Vermont
corporation with a place of business in Rutland, Vermont and its successors and
assigns ("Lessee"), and 161531 CANADA INC., a Canadian corporation with a place
of business in Sherbrooke, Quebec ("Intervenor").
W I T N E S S E T H:
WHEREAS, Lessor and Intervenor entered into an Asset Purchase, Stock
Purchase and Lease Agreement with new England Waste Services, Inc. dated May 6,
1994 (the "Agreement"); and
WHEREAS, New England Waste Services, Inc. assigned its interest in the
Agreement to Lessee by Assignment dated December 14, 1995; and
WHEREAS, the parties hereto wish to record this Lease and Option Agreement
(the "Lease") in the Town of Coventry Land Records,
NOW THEREFORE, the parties hereto agree as follows:
1. Lease - In consideration of the Lease Payments, as defined in Section 4
below, Lessor does hereby lease to Lessee and Lessee does hereby hire from
Lessor, certain premises located in the Town of Coventry, County of Orleans,
State of Vermont, more particularly described below.
2. Premises - All landfill volume immediately above the landfill footprint
for which Governmental Permits have been or may be issued to Lessee by the State
of Vermont or any other Governmental Authority and are in full force and effect,
all with respect to the Waste U.S.A. landfill located in the Town of Coventry,
Vermont, on the real property conveyed by Lessor to Lessee by Warranty Deed
dated January __, 1995 and recorded in the Town of Coventry Land Records, and
more particularly described in Exhibit A attached hereto (the "Leased
Premises"). For the purposes of this Lease, "Governmental Permits" shall include
all franchises, approvals, authorizations, permits, licenses, easements,
registrations, qualifications, leases, variances and similar rights obtained
from any Governmental Authority. For the purposes of this Lease, "Governmental
Authority" shall mean (i) the United States of America; (ii) any state,
commonwealth, territory or possession of the United States of America, and any
political subdivision thereof (including counties, municipalities and the like);
or (iii) any agency, authority or instrumentality of any of the foregoing,
including any court, tribunal, department, bureau, commission or board.
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3. Term of Lease - The initial lease term shall run for a period of six (6)
years commencing on December __, 1994 ("Commencement Date") and terminating six
(6) years from said date ("Initial Termination Date") unless extended as
provided below (the "Initial Term").
4.1 a. Lease Payments - Lease Payments of an amount not to exceed
$6,028,151.00 for the use of the Leased Premises shall be paid by Lessee to
Lessor as follows: (A) upon the execution of this Lease, Lessee shall pay to
Lessor in cash or by certified or bank cashier's check or by wire transfer of
such funds in accordance with Lessor's written instructions to Lessee, to secure
Lease Payments when due, the amount of $800,000 as a deposit in advance of Lease
Payments. This advance Lease Payment is not to be credited against quarterly
Lease Payments described below; and (B) the Lessee shall pay to the Lessor Lease
Payments in the aggregate amount of ten percent (10%) of the Gross Revenues (as
defined in the Agreement) of the Waste U.S.A. landfill operation (the
"Business"). The Lease Payments shall be made quarterly, within thirty (30) days
of the end of each calendar year quarter with the first such payment due at the
end of the first calendar quarter following the Commencement Date. The quarterly
Lease Payments shall be made in an amount equal to the greater of (a) the rate
of $3.75 per ton of all waste accepted at the Business adjusted (either up or
down in order to obtain 10% of Gross Revenues) at the end of the final calendar
quarter of each year following the Closing ("Adjustment Quarter") or (b)
$33,000.00. Notwithstanding the foregoing, if there shall not be sufficient cash
flow after the payment of any amounts associated with Lessee's Senior Debt as
defined in the Subordination Agreement, as defined below, and all Costs of
Operation, as defined below, of the Business in any Adjustment Quarter, the
Lessee may defer that portion of the quarterly payment of the Lease Payment that
exceeds $33,000.00, for one year (said deferred payment shall be due to Lessor
twelve (12) months from the end of the quarter in which such payment was
deferred). Any balance due with respect to the Lease Payments as aforesaid, at
the Initial Termination date, shall be paid in full only if (i) all necessary
permits for an additional one million tons of airspace over that specified in
Lessor's Phase I and Phase II Governmental Permit applications as of April 4,
1993 have been issued for the Waste U.S.A. landfill, including a final and
unappealable Act 250 permit and all necessary Governmental Permits, including an
Act 78 permit; or (ii) Dufresne-Henry, Inc. certifies that there exists
1,000,000 tons of airspace for which a final and unappealable Act 250 permit has
been issued and for which all other necessary Governmental Permits, including an
Act 78 permit may be issued. Any such balance due shall be paid in accordance
with Section 4.2. To the extent that there shall be less than an additional
1,000,000 million tons of airspace permitted, or, certified by Dufresne-Henry,
Inc., as specified above, Dufresne-Henry shall certify a pro rata reduction of
any amounts still due. All said Lease Payments shall be subordinate to Lessee's
Senior Debt. Lessee shall apply for permits for as many additional cubic yards
of airspace permitted by law within three (3) years of the Commencement Date.
For the purposes of this Lease, "Costs of Operation" include, all bona fide
costs
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of operation, including, without limitation, wages, salaries and fringe
benefits, fuel, utilities (including telephone) repairs, maintenance,
monitoring, professional fees, supplies, insurance (including, as appropriate,
allocation of Lessee's blanket policy premiums based on sales or labor), taxes
other than income taxes, government fees, licenses, assessments, costs for
transportation of leachate, fees for leachate disposal, and rental charges for
equipment and excluding any special payment to any shareholders or officers of
Lessee, calculated in accordance with GAAP as of December 13, 1994. For
financial and fiscal reporting purposes only, Lease Payments are earned at a
rate of $4.30.
4.1 (b) Notwithstanding the provisions of 4.1(a) above, the Lessee shall
complete and file, within 3 years of the Commencement Date (the "Application
Period") an Act 250 permit for Phase III (substantially as shown on the plan
prepared by Dufresne-Henry, Inc. dated April 23, 1993) or, as many other Act 250
phase applications as are necessary to provide for the development of land area
necessary for an additional one million tons of airspace, over that specified in
Phase I and II Governmental Permit Application as of April 4, 1993.
In the event Lessee fails or has been precluded, for any reason, from
making such applications within the Application Period Lessee's obligations
shall be as follows:
(i) Lessee shall pay to Lessor at the Subsequent Closing the pro rata
portion of Lease Payments due according to Section 4.1(a) above; and
(ii) Lessee shall make those Act 250 applications necessary to develop one
million tons of additional airspace over and above that specified in
Phases I and II. The additional time required from the Application
Period until the legal application for one million tons has been
completed and filed with the appropriate Governmental Authority shall
be added to the Initial Termination Date (the "Permit Extension
Period"). Any such permit issued, final and unappealable during the
Permit Extension Period, shall become the basis for the Final Lease
Payment in accordance with 4.1(a) above. The Final Lease Payment, less
the amount paid at the Subsequent Closing, shall be made within 30
days thereof.
The provisions of this subsection shall not affect the terms of the Option
as set out in Section 4.2(d) or, the calculation of taxes as set out in Section
4.2(g). Any payments to be made under Section 4.2(g) shall be calculated based
on the Option chosen, all tax laws and regulations in effect at the Subsequent
Closing, and amounts paid at the Subsequent Closing and thereafter.
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4.2 Purchase of Stock of Lessor/Option for Purchase of Leased Premises or
Extension of Initial Term - As an inducement for Lessee to enter into this
Agreement the Lessor and Intervenor hereby give and grant to the Lessee the
exclusive option: (i) to purchase from Intervenor all of the shares of stock of
Lessor free and clear of all encumbrances of any nature for the amount of
$300,000 (the "Option Price") on the Initial Termination Date (the "Share
Option"); or (ii) to purchase the Leased Premises and the Permit Note of Lessor
(as defined in the Agreement), rather than the shares of stock for the Option
Price (the "Asset Option"); or (iii) to extend the term of the Lease for the
remaining permitted life of the Business for the Option Price (the "Extension
Option"). The Share Option, Asset Option and Extension Option are collectively
referred to herein as the "Option" and may be exercised upon the following terms
and conditions:
(a) Term of Option - The option shall be for the duration of six (6)
years from the Commencement Date. If this option shall expire, the Lessor shall
be entitled to receive from Lessor's counsel, who shall hold such document in
escrow, a Notice of Termination in the form of Exhibit K attached hereto, the
terms of which are incorporated herein by reference.
(b) Option Price - At the time of the Subsequent Closing (as defined
below), the Option Price, as well as the Final Lease Payment as defined below,
shall be paid by Lessee to Lessor by providing the Lessor the full amount in the
form of cash, bank check, certified check, or by wire transfer of such funds in
accordance with Lessor's written instructions to Lessee.
(c) Consideration - As additional consideration for the grant of the
Option, Lessor shall continue to assist the Lessee in obtaining permits related
to the Leased Premises. In the event that there shall not be a Subsequent
Closing (as defined below), Lessor shall not be entitled to any liquidated and
agreed upon damages beyond the consideration referred to in this Subsection
4.2(c).
(d) Exercise - At any time between May 23, 1998 and six (6) years from
the Commencement Date, Lessee may exercise the Option upon twenty (20) days
written notice to Lessor. In the event of such notice to Lessor the Closing
shall occur at a closing, referred to in this Lease as the "Subsequent Closing."
At the Subsequent Closing, the Lessee shall pay to Lessor the amounts remaining
due, if any, with respect to the Lease Payments as set forth in Section 4.1 (the
"Final Lease Payment") and such amount shall be paid, along with the Option
Price. In the event of such notice of Lessee's intention to exercise the Share
Option, the Option Price and the Final Lease Payment shall be added together and
shall constitute the total purchase price of the stock, and the transfer of all
of the said shares, by appropriate transfer documents, shall be made free and
clear of any and all encumbrances and shall occur at the Subsequent Closing.
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(i) Exercise of Asset Option - In the event of such notice of
Lessee's intention to exercise the Asset Option Lessor shall deliver
to Lessee title by good and sufficient warranty deed or other
appropriate documents, transferring and conveying to Lessee marketable
title to the Leased Premises free and clear of all encumbrances,
except all zoning, planning or building, rules, orders, regulations
and ordinances applicable to said Leased Premises, and any rights of
way and easements of record as of the date of the Option Agreement.
Possession of the Leased Premises shall be delivered on the date of
the Subsequent Closing.
(ii) Exercise of Share Option - In the event of such notice of
Lessee's intention to exercise the Share Option, the transfer of all
of the said shares, by appropriate transfer documents, shall be made
free and clear of any and all encumbrances and shall occur at the
Subsequent Closing.
(iii) Exercise of Extension Option - In the event of such notice
of Lessee's intention to exercise the Extension Option, a notice to
extend to Lessee, shall be executed by Lessor at the Subsequent
Closing.
The exercise of any of the Asset Option, Share Option or Extension Option
automatically extinguishes the remaining options.
(f) Improvements - Lessee shall make no improvements to the Leased
Premises during the period prior to the Subsequent Closing, other than those
permitted by Governmental Permits and to operate the Business.
(g) Taxes - If, for any reason, exercise of the Asset Option or the
Extension Option, obligates the Lessor, the Intervenor, or Jean-Pierre Rancourt,
Alain Duhamel, Rene St. Pierre and Donat Chartier ("Intervenor's Shareholders")
the shareholders of Intervenor, to pay any additional taxes in addition to the
amount of taxes such persons would have been required to pay if the Lessee had
elected to exercise the Share Option, either to Vermont, the United States,
Canada or Quebec then sufficient amounts shall be added to the payment due to
Lessor at the Subsequent Closing so as to result in no dollar effect on said
Intervenor and Intervenor's Shareholders. In addition, with respect to the
impact of the Asset Option on taxes payable by Intervenor or Intervenor's
Shareholders, the proceeds for the purchase of the shares shall be deemed
distributed to the Intervenor and Intervenor's Shareholders. It is the intention
of the parties that the Lessor shall be entitled to the benefit of the bargain
as though it negotiated the terms and conditions of this Section 4.2 as to tax
matters only, based upon a sale of its shares for the Option Price plus the
Final Lease Payment, rather than an asset transaction. In other words, the
exercise by Lessee of the Asset Option for the Option Price plus the Final Lease
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Payment rather than shares of stock for the Option Price plus the Final Lease
Payment shall have no dollar effect upon Lessor, Intervenor or Intervenor's
Shareholders.
4.3 Final Lease Payment - In the event that no Option is exercised, as
provided herein, Lessee shall make the Final Lease Payment to Lessor, in cash or
by certified or bank cashier's check or by wire transfer of such funds in
accordance with Lessor's written instructions to Lessee no later than six (6)
years from the date of execution of this lease.
5. Use of Property - The Leased Premises shall be used solely by Lessee for
the purposes of the operation of a landfill according to Governmental Permits.
Said use by Lessee shall include the erection of all structures and any
improvements permitted by Governmental Permits and in order to operate the
Business.
6. Lessor's Right of Access - Lessor and Lessor's agent shall have the
right to review the books of the Lessee only during regular business hours and
upon reasonable notice to Lessee. Lessor shall have no right to enter the Leased
Premises during the term of this Lease.
7. Assignments - Lessee shall be able to assign mortgage or sublease the
Leased Premises without any consent, approvals or other restraints or
alienation.
8. Liability and Insurance - Lessee shall hold Lessor free and harmless
from any liability, loss, costs, expense and other charge imposed for any
violation of law by Lessee or its employees, agents or contracting parties and
Lessee will indemnify and hold Lessor harmless against and from any liability,
loss, cost, expenses or other charges caused by or resulting from any accident
or other occurrence and due directly or indirectly to the use of the Leased
Premises. Lessee shall maintain during the term of this Lease, liability
insurance in at least the amount of $___________, with Lessor and any leasehold
mortgagee named as additional insured parties.
9. Taxes - Lessee covenants and agrees to bear, pay and discharge all
taxes, public assessments, public utilities and any other public charges of any
nature in kind, whatsoever, which may be fixed, levied, assessed or otherwise
imposed by a Governmental Authority upon the Leased Premises. Lessee further
covenants that Lessor shall have at all times during the term of this Lease, the
right to pay any delinquent taxes, public assessments, public utility
assessments, and any other public liens or public charges assessed against the
Leased Premises, and the amount so paid, including reasonable expenses, shall be
additional rent due thirty (30) days after the rendering of a statement thereof,
by Lessor to Lessee. Lessor's payment of such delinquent amount shall not
terminate Lessee's leasehold rights or constitute a default by the Lessee
hereunder.
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10. Arbitration - This Lease is made upon the condition that Lessor and
Lessee shall serve, perform and comply with all of the provisions of this Lease,
and if Lessor or Lessee fails to observe, perform or comply therewith, and if
such failure shall continue for a period of thirty-five (35) days after written
notice of such failure being given by Lessor to Lessee or vice versa, Lessor or
Lessee at any time thereafter may seek recourse only by the following procedure
(except as otherwise provided in Section 12 of this Lease and except in the case
injunctive relief is sought). Any claim by one party of the other's failure to
comply with any of the provisions of this Lease, or any claims by the other
party that despite the contention, the other party has not in fact failed to
comply with the terms of this Lease, shall be resolved by binding arbitration in
accordance with the rules of the American Arbitration Association. In the event
that the provisions of this paragraph are not met, either party may thereupon
seek any other remedy at law or in equity which may be available, except that no
remedy shall cause a termination of forfeiture of this Lease. Likewise, no
decision arising from arbitration shall cause a termination or forfeiture of
this Lease.
11. Default - If any one or more of the following events (herein sometimes
referred to as "events of default") shall happen:
(a) If default shall be made in the due and punctual payment of Lease
Payments or failure to make other payments required hereunder, or any part
thereof, when and as the same shall be become due and payable, and such default
shall continue for a period of thirty (30) days.
Lessor may not terminate this Lease but may accelerate the balance of lease
payments owing and, if permitted by the Subordination and Collateral Sharing
Agreement dated as of December, 1994, among Lessor, Lessee, The First National
Bank of Boston, as Agent and certain other parties (as amended and in effect
from time to time, the "Subordination Agreement"), may take whatever recourse it
may have against the real estate owned by Lessee and known as the Waste U.S.A.
landfill in Coventry, Vermont, only in the event the default is not cured in
thirty (30) days or if Lessor does not receive notice that Lessee is seeking
arbitration within thirty (30) days.
12. Condemnation or Eminent Domain - If, at any time, during the term of
this Lease, title to a substantial portion of the Leased Premises (meaning
hereby so much as shall render the remaining portion substantially unusable by
the Lessee for the purposes set forth herein) shall be taken by exercise of the
right of condemnation or eminent domain or by agreement between Lessor and those
authorized to exercise such right (all such proceedings being collectively
referred to as a "taking in condemnation"), this Lease shall terminate and
expire on the date of such taking and the lease payments shall be due in
accordance with Section 4.1 and Section 4.2 hereof.
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That portion of the award attributable solely to Lessor shall belong solely
to Lessor. That portion of the award attributable solely to the Lessee shall
belong to the Lessee except in the event that a leasehold mortgagee also holds
title to the Leased Premises in which case, Lessee's share of the award for a
total taking or partial taking should be payable to said leasehold mortgagee(s).
If title to less than a substantial portion of the Leased Premises is taken
in condemnation, so that the Business may continue without material diminution,
this Lease shall continue in full force and effect.
13. Cancellation of Lease - Lessee shall not have the right to cancel this
Lease for damage or destruction caused by casualty or taking so long as any
leasehold mortgage is a lien on the Lease.
14.1 Indemnification by Lessor - Lessor shall indemnify, defend and hold
harmless Lessee, Lessee's shareholders, directors, officers, employees, agents,
successors and assigns, from and against all losses, damages, liabilities,
deficiencies or obligations of or to Lessee resulting from or arising out of any
claims, actions, suits, proceedings, demands, judgment, assessments, fines,
interest, penalties, costs and expenses (including settlement costs and
reasonable legal, accounting, experts and other fees, costs and expenses)
incident or relating to or resulting from any actions of Pollution Solutions of
Vermont, Inc. with or in connection with the Business. This indemnity provision
shall also apply to any and all claims, damages, fines, judgments, penalties,
costs of liabilities or lawsuits brought by any governmental agency that is
directly and indirectly caused by or results from the disposals made by
Pollution Solutions of Vermont, Inc. at the Waste U.S.A. landfill.
14.2 Right of Offset - At Lessee's option, Lessee may offset against any
Lease Payment due, the amount of any claim for which Lessor is obligated to
indemnify Lessee under this Section 14, but only if Lessee in good faith
notifies Lessor of any such indemnification claim and provides Lessee with
reasonable details forming the basis of any such indemnification claim. In the
event of a dispute with respect to the indemnification claim, the parties shall
proceed to arbitration, which arbitration shall not affect Lessee's right of
offset and shall be binding on both parties.
15. Quiet Enjoyment - Lessor covenants that the said Lessee, on paying all
lease payments required to be paid by Lessee, and performing the other covenants
and undertakings by the Lessee to be performed, shall and may peaceably have and
enjoy said Leased Premises for the term aforesaid in accordance with the terms
of this Lease.
16. Successors and Assigns - All rights and liabilities herein given to, or
imposed upon, the respective parties hereto shall extend to and bind the
respective successors and assigns of said parties herewith.
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17. Notices - Any notice to be given pursuant to this Lease shall be
sufficient if given by a writing, delivered by hand or deposited in the United
States mail, certified mail or registered mail, postage prepaid and addressed as
follows:
If to Lessor: Waste U.S.A., Inc.
c/o Wilson & White, P.C.
City Center
P.O. Box 159
Montpelier, VT 05601-0159
Attn: President
With a copy to: David Wilson, Esq.
Wilson & White, P.C.
City Center
P.O. Box 159
Montpelier, VT 05601-0159
If to Lessee: New England Waste Services of Vermont, Inc.
25 Greens Hill Lane
Rutland, VT 05701
With a copy to: Catherine Kronk, Esq.
Miller, Eggleston & Rosenberg, Ltd.
150 South Champlain Street
P.O. Box 1489
Burlington, VT 05402-1489
Or to such other person or address as the parties entitled to notice shall have
specified by written notice to the other party given in accordance with the
provisions of this Section.
18. Partial Invalidity - If any term, covenant or condition of this Lease
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
ACKNOWLEDGEMENT TO ARBITRATE
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WE UNDERSTAND THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE. AFTER
SIGNING THIS DOCUMENT, WE UNDERSTAND THAT WE WILL NOT BE ABLE TO BRING A LAWSUIT
CONCERNING ANY
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DISPUTE, UNLESS IT INVOLVES A QUESTION OF CONSTITUTIONAL OR CIVIL RIGHTS OR
INJUNCTIVE RELIEF IS SOUGHT. INSTEAD, WE AGREE TO SUBMIT ANY SUCH DISPUTE TO AN
IMPARTIAL ARBITRATOR.
IN WITNESS WHEREOF, the parties have executed this Lease and Option
Agreement under seal effective as of the date first-above written.
IN PRESENCE OF: WASTE U.S.A., INC.
By:
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Duly Authorized Agent
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NEW ENGLAND WASTE SERVICES
OF VERMONT, INC.
By:
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Duly Authorized Agent
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STATE OF VERMONT
COUNTY, SS.
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At _____________________, in said County, this ___ day of ______________,
1995, personally appeared _____________________, duly authorized agent of Waste
U.S.A., Inc., who acknowledged the above instrument, by him sealed and
subscribed, to be his free act and deed and the free act and deed of Waste
U.S.A., Inc.
Before me,
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Notary Public
Commission Expires
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STATE OF VERMONT
COUNTY, SS.
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At _____________________, in said County, this ___ day of ______________,
1995, personally appeared _____________________, duly authorized agent of New
England Waste Services of Vermont, Inc., who acknowledged the above instrument,
by him sealed and subscribed, to be his free act and deed and the free act and
deed of New England Waste Services of Vermont, Inc.
Before me,
----------------------------------
Notary Public
Commission Expires
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EXHIBIT A
Being all and the same lands and premises conveyed to New England
Waste Services of Vermont, Inc. by Warranty Deed of Waste U.S.A., Inc., dated
January 25, 1995, of record in Volume __ at Page ___ of the Coventry Land
Records, more particularly described as follows:
PARCEL 1:
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Being a parcel of land consisting of 276 acres, more or less, and being all
and the same lands and premises conveyed to Waste U.S.A., Inc. by Warranty Deed
of Charles H. Nadeau and Myrna R. Nadeau dated October 24, 1989, of record in
Volume 29 at Page 193 of the Coventry Land Records.
PARCEL 2:
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Being a parcel of land consisting of 41 acres, more or less, and being all
and the same lands and premises conveyed to Waste U.S.A., Inc. by Warranty Deed
of Leslie J. Joseph dated May 22, 1992, of record in Volume 31 at Page 101 of
the Coventry Land Records.
PARCEL 3:
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Being a parcel of land consisting of 114.8 acres, more or less, and being
all and the same lands and premises conveyed to Waste U.S.A., Inc. by Warranty
Deed of Leslie J. Joseph dated May 22, 1992, of record in Volume 31 at Page 99
of the Coventry Land Records.
PARCEL 4:
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Being Lots 1, 2, 3, 4 and 5, and being all and the same lands and premises
conveyed to Waste U.S.A., Inc. by Warranty Deeds of Charles H. Nadeau and Myrna
R. Nadeau dated October 24, 1989, of record in Volume 29 at Pages 195 through
202 of the Coventry Land Records EXCEPT a parcel of land containing 8.9 acres,
more or less, conveyed by Waste U.S.A., Inc. to Leslie J. Joseph dated October
1, 1993, of record in Volume 31 at Page 509 of the Coventry Land Records.
PARCEL 5:
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Being all and the same lands and premises conveyed to Waste U.S.A., Inc. by
Warranty Deed of Therese B. Gervais dated January 24, 1995, of record in Volume
__ at Page ___ of the Coventry Land Records. Also being all and the same lands
and premises conveyed to Therese B. Gervais by Warranty Deed of Mary Lou Duff
dated November 2, 1993, of record in Volume 31 at Page 499 of the Coventry Land
Records.
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