Exhibit 10.23
LEASE AGREEMENT
(Locomotive Shed and Maintenance
Building)
This Lease is entered into as of
March 31, 1999 by REYNOLDS METALS COMPANY ,
(“Reynolds”) 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, 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, Reynolds has agreed to lease
to Buyer and Buyer has agreed to lease from Reynolds the locomotive
shed and the maintenance building located at the site of
Reynolds’ Listerhill reduction plant, as are more
specifically described in the Asset Purchase Agreement.
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THEREFORE , for valuable consideration, receipt of which
is acknowledged, Reynolds and Buyer agree as follows:
ARTICLE I
DEMISED
PREMISES/ACCESS
1.1 Premises
. Reynolds hereby leases to Buyer
and Buyer leases from Reynolds for the term, at the rental, and
upon all of the conditions set forth herein, the locomotive shed
and the maintenance building located at the site of Reynolds’
Listerhill reduction plant (the “Reduction Plant
Property”) as is more particularly described in Exhibit A
attached hereto and incorporated herein (collectively the
“Premises”). The Premises shall be deemed to include
the land and improvements located thereon together with any and all
interests, rights, privileges, and easements appurtenant
thereto.
1.2 Use
. The Premises shall be used and
occupied only for use as a locomotive shed and maintenance building
in connection with Buyer’s operation of the
Plants.
1.3 Condition of Premises
. Buyer shall accept the
Premises “AS IS” on the Commencement Date (defined
below). Reynolds makes no warranty, express or implied, regarding
the condition of the Premises or the suitability of the Premises
for Buyer’s use.
1.4 Access .
Reynolds hereby grants to Buyer,
for the term of this Lease, a non-exclusive easement for pedestrian
and vehicular ingress to and egress from the Premises through the
Reduction Plant Property main gate entrance located on Second
Street and over the existing internal gravel road leading from
Second Street to the Premises (the “Entrance Road”).
Reynolds shall have the right, exercisable at any time and from
time to time, to relocate the Entrance Road. In the event that
Reynolds relocates the Entrance Road, Reynolds shall either permit
Buyer to use the Entrance Road, as relocated, or provide Buyer with
suitable alternative access to the Premises.
ARTICLE II
RENT
2.1 Base Rent
. Buyer shall pay to Reynolds as
base rent for the Premises 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 22320, 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 Premises, including without limitation,
utilities, 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.
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, Reynolds may terminate this Lease prior to the Expiration Date
in the event that Buyer (i) ceases operating the Plants or any one
of them or (ii) sells, transfers or assigns this Lease or the
Plants or any one of them without the prior consent of Reynolds,
which consent shall not be unreasonably withheld.
ARTICLE IV
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 Premises for the term hereby
granted without molestation or disturbance by or from
Reynolds.
ARTICLE V
BUYER’S RIGHTS AND
OBLIGATIONS
5.1 Buyer Compliance With
Laws . Buyer warrants
that its use of the Premises and the Entrance Road shall not
violate any federal, state or local law, ordinance, order, rule,
regulation, or any other applicable law affecting the Premises 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 Reynolds harmless from and against the
consequences of any such contest.
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5.2 Waste and
Nuisance . Buyer
warrants that it shall not use the Premises or the Entrance Road or
permit the Premises or the Entrance Road to be used in any manner
that would tend to create waste or nuisance.
5.3 Maintenance and Repair
. Buyer shall, at its own
cost and expense, keep in good order, condition, and repair the
structural and non-structural portions of the Premises, including,
without limitation, the foundation, floor, roof, all plumbing,
electrical, heating, ventilating, and air conditioning equipment,
all fixtures, exterior and interior walls, ceilings, windows, doors
and plate glass.
5.4 Utilities
. Buyer shall pay any and all
charges for water, gas, heat, light, power, telephone and other
utilities supplied to the Premises, together with any taxes
thereon.
5.5 Alterations
. Buyer shall be permitted to make
non-structural alterations, improvements, or additions in or about
the internal portions of the Premises without obtaining
Reynolds’ prior consent. All alterations, improvements or
additions installed or erected by Buyer on or about the Premises
shall remain the property of Buyer and shall, at the request of
Reynolds, be removed by Buyer upon the expiration or earlier
termination of this Lease. Buyer shall not make any alterations,
improvements or additions to the external or structural portions of
the Premises without the prior written consent of Reynolds, which
consent shall not be unreasonably withheld.
ARTICLE VI
ENVIRONMENTAL
MATTERS
Buyer represents, warrants and
covenants that it (i) shall not use the Premises or the Entrance
Road for the storage, generation, transportation, processing,
handling or disposal of any Hazardous Materials in violation of any
Environmental Law or Environmental Permit, (ii) not 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 Reynolds 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 Reynolds if Buyer
becomes aware of or causes a release of Hazardous Materials on the
Premises 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 Reynolds upon request.
ARTICLE VII
TAXES AND
INSURANCE
7.1 Real Property
Taxes . Reynolds
shall pay prior to delinquency all real property taxes assessed
against the Premises. Reynolds shall invoice Buyer for
Buyer’s share of the taxes assessed against the tax parcel
that includes the Premises based upon the percentage that the
square footage of the Premises bears to the total square footage of
such tax parcel. Buyer shall reimburse Reynolds within 30 days of
the date of Reynolds’ invoice.
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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
Premises.
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 Reynolds and Buyer
against liability arising out of Buyer’s use or occupancy of
the Premises 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 Premises 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 Reynolds as an additional insured. Buyer shall deliver to
Reynolds 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 Reynolds. Buyer shall, within a reasonable
time prior to the expiration of such policies, furnish Reynolds
with certificates of insurance evidencing renewal thereof. Such
insurance may be carried under a “blanket” policy or
policies covering other properties or liabilities.
ARTICLE VIII
INDEMNIFICATION OF
REYNOLDS
8.1 Indemnity .
Buyer shall indemnify and save
Reynolds and any agent, beneficiary, contractor, director,
employee, lessor, officer, parent, partner, shareholder or trustee
of Reynolds (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 is caused by the act or omission, since
the Commencement Date, of the Indemnified Party:
(a) any work or thing done in, on or
about the Premises or any part thereof;
(b) any use, non-use, possession,
occupation, alteration, repair, condition, operation, maintenance
or management of the Premises or any part thereof;
(c) any act or failure to act on the
part of Buyer or of its officers, agents, employees or
licensees;
(d) any accident, injury (including
death at any time resulting therefrom) or damage to any person or
property occurring in, on or about the Premises or any part
thereof;
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(e) any failure on the part of Buyer
to pay rent, or to perform or comply with any of the
covenant