Exhibit 10.22
GROUND LEASE
AGREEMENT
(Southern Reclamation
Plant)
This Ground Lease Agreement is
entered into as of March 31, 1999 by REYNOLDS ALUMINUM
PARTNERS (“RAP”) and WISE ALLOYS LLC
(“Buyer”).
RECITALS
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1.
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This Lease is
being executed and delivered in accordance with Section 7.4 of the
Asset Purchase Agreement, dated December 30, 1998 (the “Asset
Purchase Agreement”), by and among Reynolds Metals Company,
Southern Reclamation Company, Inc., Reynolds Aluminum Partners and
Buyer. Unless otherwise defined in this Lease, all capitalized
terms shall have the meanings given to them in the Asset Purchase
Agreement.
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2.
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Pursuant to the
terms of the Asset Purchase Agreement, RAP has agreed to sell to
Buyer and Buyer has agreed to purchase the buildings, fixtures and
equipment constituting the Southern Reclamation Plant located in
Colbert County, Alabama as is more specifically described in the
Asset Purchase Agreement.
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3.
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Pursuant to the
Asset Purchase Agreement, RAP has agreed to lease to Buyer and
Buyer has agreed to lease from RAP the real property upon which the
Southern Reclamation Plant is situated.
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THEREFORE, for valuable
consideration, receipt of which is acknowledged, RAP and Buyer
agree as follows:
ARTICLE I
DEMISED SRC
PROPERTY/USE
1.1 SRC
Property . RAP hereby
leases to Buyer and Buyer leases from RAP for the term, at the
rental, and upon all of the conditions set forth herein that
certain real property located in Colbert County, Alabama upon which
the Southern Reclamation Plant is situated as is more particularly
[described/depicted] in Exhibit A attached hereto and incorporated
herein (the “SRC Property”).
1.2 Use
. The SRC Property shall be used and
occupied only for the ownership, operation, maintenance, repair and
replacement of the Southern Reclamation Plant. Except as is
necessary for the ownership, operation, maintenance, repair and
replacement of the Southern Reclamation Plant, and except for the
construction and maintenance of the berm and the pipelines for the
transport of process and sanitary wastewater and storm water, which
Buyer shall construct in accordance with the terms and conditions
set forth in section 8.16 of the Asset Purchase Agreement, Buyer
shall not construct any permanent improvement on the SRC Property
without the prior written consent of RAP, which consent shall not
be unreasonably withheld.
1.3 Improvements/Personal
Property .
(a) Upon the termination or
expiration of this Lease, improvements on the SRC Property shall be
deemed to be and become part of the realty and the sole and
absolute property of RAP as of the expiration or termination of
this Lease and shall be surrendered to RAP at that time, free and
clear of all liens of mortgages, deeds of trust, liens of
mechanics, laborers or materialmen and all other liens or
encumbrances.
(b) All personal property on the SRC
Property shall remain the property of Buyer regardless of the
termination or expiration of this Lease. Buyer may remove from the
SRC Property all such personal property within thirty (30) business
days after the termination or expiration of this Lease and shall
repair at its sole cost and expense, any damage to the SRC Property
caused by such removal. Any personal property not removed by the
aforesaid date shall be deemed abandoned and may be used or
disposed of by RAP without compensation to Buyer.
1.4 Sanitary Waste and Process
Water Disposal . Buyer shall, at its cost and expense, take such
measures as are required to ensure that the sanitary waste and
process water from the Southern Reclamation Plant is disposed of on
property which does not constitute the SRC Property or any other
property owned by RAP, Reynolds Metals Company or Southern
Reclamation Company, Inc.
1.5 Access
. RAP hereby grants and conveys
unto Buyer, for the term of this Lease, a non-exclusive leasehold
easement for pedestrian and vehicular ingress to and egress from
the SRC Property through the double gate located adjacent to and on
the west side of the railroad line crossing of River Road on the
south side of the SRC Property and along the existing entrance road
to the SRC Property (the “Entrance Road”). RAP shall
have the right, exercisable at any time and from time to time, to
relocate the Entrance Road. In the event that RAP relocates the
Entrance Road, RAP shall either permit Buyer to use the Entrance
Road, as relocated, or provide Buyer with suitable alternative
access to the SRC Property. Buyer shall take all actions as may be
reasonably required to prevent trespassers from entering on to the
SRC Property.
ARTICLE II
RENT
2.1 Base Rent
. Buyer shall pay to RAP as base
rent for the SRC Property the sum of $10.00 per year subject to the
adjustments, if any, set forth below. The first base rent payment
shall be due and payable on the Commencement Date (defined below).
Each subsequent base rent payment shall be due and payable annually
on the anniversary of the Commencement Date. Rent shall be paid to
Reynolds Metals Company at 6601 West Broad Street, Richmond,
Virginia 23230, Attn: Real Estate Department, or at such other
address as may be specified in written notice to Buyer.
2.2 Additional
Rent . The parties
intend this to be an absolute net lease. In addition to the Base
Rent set forth above, Buyer shall pay as “additional
rent” any and all charges applicable to the SRC Property,
including without limitation, real property taxes and insurance as
more fully set forth below, and any other costs, fees, expenses or
other charges whether or not contemplated by the parties as of the
Commencement Date.
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ARTICLE III
TERM/TERMINATION
3.1 Term
. The term of this Lease shall
commence on March 31, 1999 (the “Commencement Date”),
and shall end ninety-nine (99) years thereafter on March 30, 2098
(the “Expiration Date”).
3.2 Termination
. Notwithstanding section 3.1, RAP
may terminate this Lease prior to the Expiration Date in the event
that Buyer sells, transfers or assigns this Lease or the Southern
Reclamation Plant without the prior consent of RAP, which consent
shall not be unreasonably withheld. In the event this Lease is
terminated pursuant to this section 3.2, the provisions of section
1.3 shall apply.
ARTICLE IV
RAP OBLIGATIONS
4.1 Quiet
Enjoyment . If, and
as long as, Buyer shall faithfully perform the agreements, terms,
covenants and conditions hereof, Buyer shall and may (subject,
however, to the provisions, reservations, terms and conditions of
this Lease) peaceably and quietly have, hold and enjoy the SRC
Property for the term hereby granted without molestation or
disturbance by or from RAP.
4.2 No Representations By
RAP . Buyer
acknowledges that RAP makes no representations or warranties in
respect of the SRC Property. RAP makes no representation or
warranty, and expressly disclaims any representation or warranty
with respect to the condition, value or quality of the Premises and
the Premises are leased to Buyer “AS IS” AND
“WHERE IS.”
ARTICLE V
BUYER’S RIGHTS AND
OBLIGATIONS
5.1 Buyer Compliance With
Laws . Buyer warrants
that its use of the SRC Property and the Entrance Road and
operation of the Southern Reclamation Plant shall not violate any
federal, state or local law, ordinance, order, rule, regulation, or
any other applicable law affecting the SRC Property or the Entrance
Road. Buyer may contest the application to Buyer or the validity
of, any applicable law, provided that Buyer shall fully indemnify
and hold RAP harmless from and against the consequences of any such
contest.
5.2 Waste and
Nuisance . Buyer
warrants that it shall not use the SRC Property or the Entrance
Road or permit the SRC Property or the Entrance Road to be used in
any manner that would tend to create waste or nuisance.
ARTICLE VI
ENVIRONMENTAL
MATTERS
Buyer represents, warrants and
covenants that it (i) shall not use the SRC Property or the
Entrance Road or the storage, generation, transportation,
processing, handling or disposal of any Hazardous Materials in
violation of any Environmental Law or Environmental Permit, (ii)
not
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cause or in any way, directly or indirectly,
contribute to any condition that is or may be characterized by any
federal, state or local government or agency as an actual or
potential threat or endangerment to the environment, (iii) shall
comply strictly with all applicable Environmental Laws, (iv)
immediately notify RAP of any notice of violation, noncompliance or
other written communication by any governmental authority or others
of any violation of any Environmental Law and (v) immediately
inform RAP if Buyer becomes aware of or causes a release of
Hazardous Materials on the SRC Property or the Entrance Road which
is reportable to a local, state, or federal regulatory authority.
For releases deemed by the Buyer as not reportable, copies of any
documentation relating to such release shall be maintained by Buyer
and made available for review by RAP upon request.
ARTICLE VII
TAXES AND
INSURANCE
7.1 Real Property
Taxes . RAP shall pay
prior to delinquency all real property taxes assessed against the
SRC Property and the improvements constituting the Southern
Reclamation Plant. RAP shall invoice Buyer for 100% of the taxes
assessed against the improvements constituting the Southern
Reclamation Plant and for Buyer’s share of the taxes assessed
against the tax parcel that includes the SRC Property, based upon
the percentage that the square footage of the SRC Property bears to
the total square footage of such tax parcel. Buyer shall reimburse
RAP within 30 days of the date of the invoice.
7.2 Personal Property
Taxes . Buyer shall
pay prior to delinquency all taxes assessed against and levied upon
its equipment and all other personal property located at the SRC
Property.
7.3 Insurance
. Buyer shall, at its expense,
obtain and keep in force during the term of this Lease, commercial
general liability insurance with a combined single limit of not
less than $5,000,000 per occurrence for bodily injury (including
death) and property damage, insuring both RAP and Buyer against
liability arising out of Buyer’s use or occupancy of the SRC
Property and the Entrance Road. In addition, Buyer shall, at its
expense, obtain and keep in force during the term of this Lease, a
policy or policies of insurance covering loss or damage to the
Southern Reclamation Plant providing protection against all perils
included within the classification of fire, lightning, all risk and
extended coverage.
7.4 Insurance
Certificates . All
such policies of insurance required under section 7.3 shall
designate RAP as an additional insured. Buyer shall deliver to RAP
certificates of insurance for the insurance required under section
7.3 on the Commencement Date. Such policies shall not be cancelable
or subject to reduction in coverage without 30 days prior written
notice to RAP. Buyer shall, within a reasonable time prior to the
expiration of such policies, furnish RAP with certificates of
insurance evidencing renewal thereof. Such insurance may be carried
under a “blanket” policy or policies covering other
properties or liabilities.
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ARTICLE VIII
INDEMNIFICATION OF
RAP
8.1 Indemnity
. Buyer shall indemnify and save
RAP and any agent, beneficiary, contractor, director, employee,
lessor, officer, parent, partner, shareholder or trustee of RAP
(each an “Indemnified Party”) harmless from and against
any and all liabilities, suits, obligations, fines, damages,
penalties, claims, costs, charges and expenses, including, without
limitation, engineers’, architects’ and
attorneys’ fees and disbursements (collectively,
“Claims”), which may be imposed upon or incurred by or
asserted against any Indemnified Party by reason of any of the
following occurring during or after (but attributable to a period
of time falling within) the term hereof; provided, however, that
the indemnification obligations set forth herein shall not apply to
the extent that the Claim