EXHIBIT 10.1
LEASE AGREEMENT
BY AND BETWEEN
MERCURY REFINING COMPANY, INC.,
AND
00 XXXXXXXX XXX., INC.,
AS LANDLORD
AND
MWS NEW YORK, INC.,
AS TENANT
MAY 11 , 1998
TABLE OF CONTENTS
PAGE
ARTICLE 1- DEFINITIONS.........................................................1
ARTICLE 2 - LEASED PROPERTY....................................................4
2.1 Leased Premises...........................................4
2.2 Access Easement Rights....................................4
2.3 Term......................................................4
2.4 Rent......................................................5
2.5 Adjustment of Fixed Rent..................................6
2.6 Delivery..................................................7
2.7 Security..................................................7
2.8 Permitted Uses............................................7
2.9 Restrictive Use of Property...............................8
ARTICLE 3 - TAXES & PROPERTY EXPENSES..........................................8
3.1 Taxes.....................................................8
3.2 Lien Payment Rights.......................................8
ARTICLE 4 - INSTALLATIONS, REPAIRS & MAINTENANCE...............................9
4.1 Installations.............................................9
4.2 Approval of Material Installations........................9
4.3 Installations Surrendered.................................9
4.4 Abandonment of Installations..............................9
4.5 Repairs and Maintenance..................................10
ARTICLE 5 - CONDEMNATION/DESTRUCTION OF PROPERTY..............................11
5.1 Condemnation.............................................11
5.2 Damage and Destruction of Leased Property................11
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES....................................11
6.1 Representations and Warranties of Landlord...............11
6.2 Representations and Warranties of Tenant.................13
6.3 Covenants of Landlord....................................13
6.4 Covenants of Tenant......................................14
ARTICLE 7 - COMPLIANCE WITH LAWS..............................................14
7.1 Tenant Responsible for Compliance........................14
7.2 Contests to Compliance...................................14
ARTICLE 8 - PHYSICAL CONDITION OF PROPERTY....................................15
8.1 Tenant Accepts Condition of Leased Property..............15
ARTICLE 9 - RIGHT OF ENTRY....................................................15
9.1 Right to Inspect.........................................15
9.2 Right to Perform Testing.................................15
9.3 Right to Perform Certain Acts............................15
9.4 Landlord Liable for Damages..............................15
ARTICLE 10 - INDEMNIFICATION..................................................16
10.1 Landlord Liability Limited...............................16
10.2 Tenant Liability Limited.................................16
10.3 Indemnification by Tenant................................16
10.4 Indemnification by Landlord..............................17
10.5 Indemnification Obligation Continuing....................18
10.6 Indemnification Procedures...............................18
ARTICLE 11- INSURANCE.........................................................18
11.1 Tenant's Insurance.......................................18
11.2 Landlord's Insurance.....................................19
11.3 Waiver of Recovery Rights................................19
ARTICLE 12 - EVENTS OF DEFAULT................................................19
12.1 Tenant Defaults..........................................19
12.2 Landlord Defaults........................................19
12.3 Remedies.................................................20
12.4 Additional Remedies of Landlord..........................20
12.5 Additional Remedies of Tenant............................21
12.6 Not Released.............................................21
12.7 TSD Permit...............................................21
12.8 Mitigation...............................................21
12.9 Shortening of Cure Periods...............................21
ARTICLE 13 - TERMINATION......................................................21
13.1 Surrender of Leased Property.............................21
13.2 Closure of Leased Property...............................21
13.3 Noncompete Obligation of Landlord........................21
13.4 Termination for Force Majeure............................22
13.5 Obligation to Remove.....................................22
13.6 Removal of Tenant from Government Permits and
Approvals................................................22
ARTICLE 14 - MISCELLANEOUS....................................................22
14.1 Binding Effect...........................................22
14.2 Notices..................................................22
14.3 Memorandum of Lease......................................23
14.4 Severability.............................................23
14.5 Amendments...............................................24
14.6 Appendices...............................................24
14.7 Captions.................................................24
14.8 Governing Law............................................24
14.9 Waiver...................................................24
ARTICLE 15 - DISPUTE RESOLUTION...............................................24
15.1 Arbitration..............................................24
15.2 Forum Selection: Venue...................................24
ARTICLE 16 - RIGHT OF FIRST REFUSAL...........................................24
16.1 Grant of Right...........................................24
16.2 Third Party Offer........................................24
16.3 Acceptance/Rejection.....................................25
16.4 Definition of "Third Party"..............................25
Appendix A: Survey ..................................................27
Appendix B: Legal Description of Property............................27
Appendix C: Exceptions to Landlord's Representations.................27
Appendix D: Description of Existing Right of First Refusal...........27
LEASE AGREEMENT
This Lease Agreement ("Lease") is made as of this 11 day of May,
1998 ("Lease Commencement Date") by and between Mercury Refining Company, Inc.,
a New York corporation ("MERECO"), and 00 Xxxxxxxx Xxx., Inc., a New York
corporation ("26 Railroad"), each with a principal place of business located at
0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000 (MERECO and 26 Railroad are
collectively referred to herein as the "Landlord") and MWS New York, Inc., a
Minnesota corporation ("Tenant"), with a principal place of business located at
000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000-0000 (Landlord and Tenant
are collectively referred to herein as the "Parties").
ARTICLE 1- DEFINITIONS
As used in this Lease, the following DEFINITIONS shall apply:
1.1 "ACCESS EASEMENT RIGHTS" shall mean the access easement rights
to the Property from Railroad Avenue over what is commonly referred to as the
"Western Driveway," which access easement rights were created in Section 3 of
that certain Agreement between 26 Railroad Avenue, Inc., Mercury Refining Co.,
Inc. and Albany Pallet & Box Co., Inc. dated March, 1996, which was recorded in
Liber 2600, cp. 261 and which was modified by a letter amendment dated April 17,
1998 (the "Settlement Agreement"). The Western Driveway is depicted on the
survey which is attached as Exhibit A to the Settlement Agreement.
1.2 "ADDITIONAL RENT" shall mean all sums of money, costs, taxes,
expenses or charges, interest or fees (including, but not limited to, attorneys
fees) of every kind or amount whatsoever (other than the fixed rent set forth in
Section 2.4(a)) which Tenant specifically agrees to pay to Landlord or which
otherwise become due and payable by Tenant under this Lease.
1.3 "AFFILIATE" shall mean any person or entity which controls, is
controlled by, or is under common control with a party or any director, officer,
employee, agent, contractor, licensee or representative of the party or any of
the foregoing.
1.4 "COMMON AREA" means that portion of the Property containing all
of the following:
(a) All paved areas helpful, necessary and convenient to
the operation of Tenant's business operations (including but not
limited to parking places);
(b) All helpful, necessary and reasonable ways of
access; and
(c) That portion of the Phase 1 Building consisting of
the bathrooms, the locker rooms, showers, lunchroom and office space
and access ways to same,
all as depicted on APPENDIX A annexed hereto.
1.5 "CONTAINER STORAGE BUILDING" is that building located on the
Leased Property permitted and operated as a hazardous waste storage facility
pursuant to the TSD Permit for mercury-contaminated waste as depicted on
APPENDIX A annexed hereto.
1.6 "CORRECTIVE ACTION" means (i) the investigations and remedial
activity required (now or in the future) under the TSD Permit to address Past
Releases and Future Releases of Hazardous Substances at, from or associated with
the Property, (ii) the investigation and remedial activity in connection with
any Environmental Laws or associated with any Hazardous Substance required by
any Government Entity in connection with Past Releases and Future Releases
related to the Property, (iii) any action required to be taken by Landlord
pursuant to any consent orders or agreements entered into by Landlord, and (iv)
any action required by any Law that Landlord must take to address Past Releases
and Future Releases in connection with its ownership of the Property or its
activities or omissions on the Property at any time in the past, present or
future. Past Releases means Releases that occurred due to activities conducted
or failed to have been conducted prior to the Lease Commencement Date, whether
or not such Release is now known. Future Releases means Releases that occur or
are discovered in the future due to activities of Landlord or any other third
party which occurred prior to the Lease Commencement Date, which become known
after the Lease Commencement Date and which are due to actions or omissions of
Landlord or any third party (other than Tenant or Tenant's Affiliates or any
invitee of either) which occur after the Lease Commencement Date. Past Releases
and Future Releases include but shall not be limited to Releases on, from or
associated with the Property.
1.7 "DEC" means the New York Department of Environmental
Conservation and all successor agencies thereto.
1.8 "ENVIRONMENTAL LAWS" means all applicable federal, state, local
laws, rules, regulations, codes, ordinances, orders, decrees, directives,
permits, licenses and judgments relating to pollution, contamination or
protection of the environment (including, without limitation, all applicable
federal, state, local laws, rules, regulations, codes, ordinances, orders,
decrees, directives, permits, licenses and judgments relating to any Hazardous
Substances in effect as of the date of this Agreement), including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportations Act, as amended (49 U.S.C. Sections 1801, et seq.),
the Resource Conservation and Recovery Act, as amended (42 U.S.C. Sections 6901,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601,
et seq.) Articles 15 and 27 of the New York State Environmental Conservation
Law.
1.9 "GOVERNMENT ENTITY" means the United States, the State of New
York, the County of Albany, the Town of Colonie, the Town of Guilderland, and
any and every other agency, department, commission, rule making body, bureau,
instrumentality and/or political subdivision of government of any kind
whatsoever, now existing or hereafter created, now or hereafter having
jurisdiction over the Property, and/or the use, occupancy, possession, operation
and/or maintenance of the Property, and the New York Board of Fire Underwriters
(and any successor organization, or any similar insurance rate-making body).
1.10 "GOVERNMENT PERMITS AND APPROVALS" mean all permits, licenses,
approvals, authorizations, consents or registrations, present or future,
required by any applicable Law in connection with the ownership, use and/or
operation of the Leased Property.
1.11 "HAZARDOUS SUBSTANCE" means, without limitation, any flammable
explosives, radon, radioactive materials, asbestos, urea-formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum products,
methane, hazardous materials, hazardous wastes, hazardous or toxic substances or
related materials, any dangerous, toxic or hazardous pollutant, contaminant,
chemical, waste, material or substance as defined in or governed by any federal,
state or local law, statute, code, ordinance, regulation, rule or other
requirement relating to such substance or otherwise relating to the environment
or human health or safety, including without limitation any waste, material,
substance, pollutant or contaminant that might
cause any injury to human health or safety or to the environment or might
subject Landlord or Tenant to any imposition of costs or liability under any
Environmental Law.
1.12 "INSTALLATIONS" means the installation or construction of
immoveable fixtures and equipment of every kind whatsoever affixed or
incorporated in or upon the Leased Property after the Lease Commencement Date,
and all additions, alterations, modifications, or improvements of every kind
whatsoever made in, to or upon the Leased Property after the Lease Commencement
Date. "Installations" shall include (but not be limited to) equipment; lifts;
engines; boilers; heating, ventilating and air conditioning equipment; ducts;
pipes; conduits wiring, and fittings; paneling; partitioning; railings; lighting
fixtures; plumbing equipment and fixtures; window fixtures; and fire alarm,
protection and suppression equipment. The term "Material Installations" includes
Installations that cost in excess of $25,000 (including design, construction and
materials), but excludes loading docks.
1.13 "LAW" or "LAWS" means each and every law, rule, regulation,
order, ordinance, statute, requirement, code, policy, guideline, interpretation,
decision, order, directive or executive mandate of any kind whatsoever, present
or future, issued by any Government Entity applicable to or affecting the
Property, and/or the use, occupancy, possession, operation, and/or maintenance
of the Leased Property including but not limited to all Environmental Laws.
1.14 "LEASE COMMENCEMENT DATE" shall mean the date as set forth in
Section 2.3(a).
1.15 "LEASED PROPERTY" shall mean and include a right of access
pursuant to the Access Easement Rights and those portions of the Property which
are depicted on APPENDIX A attached hereto and which consist of the following:
(a) The Container Storage Building, including all
fixtures and appurtenances thereto; and
(b) The Common Area together with all improvements now
or hereafter located thereon and all easements, rights, privileges
and appurtenances incident thereto.
1.16 "MATERIAL" means a condition, event or occurrence of such
significance that it materially adversely affects (a) the condition and/or value
of the Leased Property; or (b) the ability of the parties to perform their
respective obligations under this Lease.
1.17 "PHASE I BUILDING" means that building (including fixtures)
housing the mercury recycling equipment and such other machinery and equipment
necessary or convenient to the processing of mercury contaminated waste as
depicted on the survey attached hereto as APPENDIX A.
1.18 "PRECIOUS METALS OPERATION" shall mean any and all components
to the processing of materials, including, without limitation, silver oxide
batteries, dental amalgam and related dental alloys and wastes, for the
recapture of precious metals therein.
1.19 "PROPERTY" means that property commonly referred to as the
southern portion of 00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx which is depicted on
APPENDIX A and legally described on APPENDIX B attached hereto.
1.20 "RELEASE" and "THREATENED RELEASE" has the same meaning as
given to that term in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C.
Section 9601, et seq.), and the regulations promulgated thereunder, and shall
include without limitation, the spilling, leaking, disposing, discharging,
emitting, seeping, depositing, ejecting, leaching, escaping or any other release
or threatened release, however defined, whether intentional or unintentional,
past, present or future, of any Hazardous Substance.
1.21 "TENANT'S PROPERTY" shall mean all movable industrial equipment
and machinery, furniture, computers, office equipment and machinery, and other
items of personal property of Tenant, which can be removed without damage to the
Leased Property.
1.22 "TSD PERMIT" means the permit issued to Landlord by the New
York Department of Environmental Conservation and the U.S. Environmental
Protection Agency pursuant to 6 NYCRR Part 373 and 40 C.F.R. Part 264,
respectively, to store hazardous waste in the Container Storage Building, and
any renewal, extension or replacement thereof.
ARTICLE 2 - LEASED PROPERTY
2.1 LEASED PREMISES. (a) Landlord hereby leases to Tenant and Tenant
hereby leases from Landlord the Leased Property; provided that Landlord shall
retain an irrevocable nonexclusive license to use the Common Area, including a
right of access thereto; and (b) Landlord agrees not to unreasonably interfere
with the business operations of Tenant in the Common Area.
2.2 ACCESS EASEMENT RIGHTS.
(a) Section 3 of the Settlement Agreement provides that
00 Xxxxxxxx Xxxxxx, Inc. may relinquish its right to and use of the
Access Easement Rights at any time. Mercury Refining Co., Inc. and
00 Xxxxxxxx Xxxxxx, Inc. hereby agree that neither they nor any
party which may hereafter have any interest in the Property shall
have the right to relinquish the Access Easement Rights or any
tenant's right to and use of the Access Easement Rights and they
hereby agree that neither they nor any other party which may
hereafter have any interest in the Property shall have the right to
modify the Access Easement Rights or their tenant's rights to and
use of the Access Easement Rights in any way without obtaining the
express prior written consent of the Tenant, which consent shall not
be unreasonably withheld, conditioned or delayed provided that the
access to the Property from Railroad Avenue shall not be adversely
affected in a material way by such modification.
2.3 TERM.
(a) The term of this Lease shall commence at 12:00 a.m.
on the 12th day of May, 1998 (the "Lease Commencement Date") and
shall expire unless earlier terminated or extended as provided
herein, at 12:00 a.m. on May 11, 2001. The initial term and
extensions thereof pursuant to the terms of this Lease shall be
referred to herein as the "Lease Term" or "Term."
(b) Provided that no Event of Default (as set forth in
Section 12.1) exists as of the time Tenant exercises its option for
an Extended Term, Tenant shall have the right and option (an
"Extension Option") to extend the Lease Term prior to the expiration
of the then current Lease Term for the following additional
extension terms (individually an "Extended Term" and collectively,
the "Extended Terms"):
(i) The First Extended Term of two (2) years
shall commence on May 12, 2001 and expire on May 11,
2003;
(ii) The Second Extended Term of four (4)
years shall commence on May 12, 2003 and expire on May
11, 2007;
(iii) The Third Extended Term of three (3)
years shall commence on May 12, 2007 and expire on May
11, 2010;
Landlord must notify Tenant in writing within five (5) business days
after Landlord's receipt of Tenant's Exercise Notice (as defined
below) if Landlord believes that an Event of Default by Tenant
exists and precisely what actions Tenant must take to cure such
Event of Default. If Landlord fails to provide such notice, Landlord
waives any right to object to the validity of Tenant's exercise of
the Extension Option. If Landlord notifies Tenant that an Event of
Default existed at the time Landlord received Tenant's Exercise
Notice, Tenant shall have a period of thirty (30) days to cure such
Event of Default and if such Event of Default is cured within such
thirty (30) day period, Tenant's exercise of the Extension Option
shall remain valid.
(c) Tenant's right to extend the Lease Term for any
Extended Term shall be exercised by Tenant's delivery of written
notice (an "Exercise Notice") in accordance with Section 14.2 to
Landlord of its intention to extend the then current Term, which
notice shall be delivered at least three (3) months prior to the
expiration of the then current Term. Tenant's failure to give such
written notice with respect to the extension of the Lease for any
Extended Term shall be deemed a waiver of its right to so extend the
Lease, but only if Landlord shall have notified Tenant in writing
(the "Reminder Notice") of Tenant's failure to exercise its
Extension Option in a timely manner and such failure continues for
ten (10) days after Tenant's receipt of the Reminder Notice.
(d) Notwithstanding any other term of this Lease, upon
the occurrence of any of the following events, Tenant shall have the
option to terminate this Lease: (i) if Landlord or Tenant receives
notice that the TSD Permit is being or will be revoked or not
renewed for any reason, or (ii) if Landlord or Tenant receives
notice that the TSD Permit is being modified so that such
modification adversely affects in a material way the ability of
Tenant to utilize the Leased Property for Tenant's intended purpose;
provided, however, that such modification to the TSD Permit was not
caused by Tenant's negligent acts, or (iii) if any of the events set
forth in (i) or (ii) actually occurs. The Lease shall be terminated
on the thirtieth (30th) day following Tenant giving written notice
to Landlord of Tenant's intent to terminate the Lease.
2.4 RENT.
(a) Annual fixed rent on the Leased Property during the
initial Lease Term and the First Extended Term shall be Seventy Five
Thousand Dollars ($75,000) per year, which Tenant agrees to pay in
lawful money of the United States in equal monthly installments of
Six Thousand Two Hundred Fifty Dollars ($6,250) in advance on the
first day of each month at the office of Landlord or such other
place as Landlord may designate in writing. All rent and other
amounts due hereunder shall be prorated for any partial month during
which Tenant occupies the Leased Property.
(b) Tenant shall pay Additional Rent as such may become
due and payable by Tenant under this Lease. Landlord shall have the
same rights and remedies for Tenant's failure to pay any Additional
Rent as for Tenant's failure to pay the fixed rent in accordance
with Section 2.4(a).
(c) Except as otherwise provided in the Lease, Tenant's
obligation to pay all fixed rent payable hereunder shall be absolute
and unconditional and shall be paid without notice.
(d) Any liability of Tenant for payment of any money
required to be paid pursuant to this Lease during the Lease Term (as
such Lease Term may be shortened by early termination as provided
for herein) shall survive the termination or expiration thereof. Any
and all liabilities or obligations of Landlord to be paid or
performed by Landlord pursuant to this Lease during the Lease Term
(as such Lease Term may be shortened by early termination as
provided for herein) shall survive the termination or expiration
thereof.
(e) Notwithstanding the foregoing, the parties agree
that, pursuant to section VII.B. of the Order In the Matter of 00
Xxxxxxxx Xxxxxx Site by Mercury Refining Company, Inc. and MWS New
York, Inc., Index No. D3-0001-96-42 (the "Order"), beginning on June
1, 1998 and continuing on the first day of each month through April
1, 2001, Tenant shall pay $2,084.00 of each monthly installment of
the fixed rent payment payable to Landlord under Section 2.4(a) of
this Lease to the New York State Department of Environmental
Conservation (the "DEC") and Tenant shall pay $2,060.00 of the
monthly installment of the fixed rent payment which is due on May 1,
2001 to the DEC. Such payments to the DEC by Tenant shall satisfy
Tenant's obligation to pay such portion of the fixed rent payments
to Landlord.
2.5 ADJUSTMENT OF FIXED RENT. For each Extended Term following the
First Extended Term, Tenant shall pay to Landlord a fixed rent equal to the
greater of (i) Fifty Thousand Dollars ($50,000), or (ii) the then current
"Market Rent" determined pursuant to this Section 2.5:
(a) "Market Rent" means the annual rent which a landlord
would receive by then renting the property in question assuming the
landlord to be a prudent person willing to lease but being under no
compulsion to do so, assuming the tenant to be a prudent person
willing to lease but being under no compulsion to do so, assuming a
lease term equal to the term in question, and assuming a lease
containing the same terms and provisions as those contained in this
Lease; provided that Market Rent shall not include or take into
consideration any Installations or other improvements to the Leased
Property made by Tenant after the Lease Commencement Date.
(b) Landlord shall initially determine the Market Rent
for the Extended Term and give Tenant notice of such determination
not later than thirty (30) days after Landlord receives Tenant's
Exercise Notice, failing which the annual fixed rent for that
Extended Term shall be the same as the annual fixed rent in effect
at the time Tenant delivers the Exercise Notice.
(c) If Tenant does not agree with Landlord's
determination of Market Rent, Tenant shall give notice to Landlord
of such disagreement within twenty (20) days after Landlord gives
notice to Tenant under Section 2.5(b). If Tenant fails to give such
notice of disagreement for any reason, then Tenant shall be bound by
Landlord's determination of Market Rent.
(d) If Tenant gives Landlord notice of disagreement
within the time permitted, each party will choose a person with at
least five (5) years experience as a commercial/industrial real
estate appraiser in the Albany, New York area who shall be a member
in good standing of the American Institute of Real Estate Appraisers
(or successor organization or if no such organization exists, then
persons of similar professional qualification), with the designation
M.A.I., and give notice of the name and address of such person to
the other within thirty (30) days of the notice of disagreement from
Tenant. If only one party appoints an appraiser, then the lone
appraiser shall within twenty (20) days render his or her opinion as
to the Market Rent. If each party appoints an appraiser, they shall
meet and attempt to agree upon the Market Rent within twenty (20)
days. If the two appraisers cannot reach agreement as to Market
Rent, then those two persons shall within the twenty (20) day period
select a third person who is experienced in the determination of
commercial/industrial rental rates for similar space in the Albany,
New York area and the
three appraisers shall make a determination of Market Rent as
expeditiously as possible thereafter and in any event within thirty
(30) days after the selection of the third appraiser. The
determination of the appraisers shall be made as follows:
(i) Each appraiser will independently
determine the Market Rent and then all will meet and
simultaneously disclose to the others their respective
determinations.
(ii) If neither the highest nor the lowest
determination differs from the middle determination by
more than ten percent (10%) of such middle
determination, then the Market Rent shall be the average
of all three determinations.
(iii) If subparagraph (ii) does not apply,
then the Market Rent shall be the average of the two
determinations which are closest to each other.
(iv) The appraisers shall promptly notify
Landlord and Tenant of each of their separate
determinations and the resulting Market Rent. The
determination of Market Rent pursuant to this procedure
shall be final, binding and conclusive upon Landlord and
Tenant and may be enforced in a court of competent
jurisdiction.
(e) Each party will pay any and all fees and expenses
incurred in connection with such party's appraiser and the fees and
expenses for the third appraiser will be borne equally by the
parties.
(f) Notwithstanding the foregoing, if Tenant is not
satisfied with the determination of Market Rent by the appraisers,
Tenant shall have the right to rescind its exercise of the Extension
Option and in such event Tenant shall be responsible for paying the
cost of all of the appraisers.
(g) Notwithstanding the foregoing, the Market Rent
during any Extended Term shall not be more than Seventy-five
Thousand Dollars ($75,000) per year.
2.6 DELIVERY. Landlord shall deliver possession of Leased Property
to Tenant on the Lease Commencement Date.
2.7 SECURITY. On or before the Lease Commencement Date, Tenant shall
deposit the sum of $6,250 with Landlord as security for the full and faithful
performance by Tenant of each and every term, covenant and condition of this
Lease. While any Event of Default exists hereunder with respect to any of the
terms, provisions, covenants and conditions of this Lease, including, but not
limited to (i) payment of any rent or Additional Rent, (ii) closure of the TSD
Permit in accordance with Section 13.2, and (iii) removal of Hazardous
Substances in accordance with the provision of Section 13.4(e) hereof, Landlord
may use, apply, or retain the whole or any part of the security so deposited for
the payment of any such rental payment in default or for any other reasonable
sum which Landlord may expend or be required to expend by reason of Tenant's
default, whether such damage or deficiency accrues before or after summary
proceedings or other re-entry by Landlord. If there is no Event of Default by
Tenant at the expiration or termination of this Lease, the security deposit or
any balance thereof after deducting a reasonable amount to render Tenant in
compliance shall be returned to Tenant within ten (10) days after the expiration
or termination of this Lease.
2.8 PERMITTED USES.
(a) Tenant may use and occupy the Leased Property for
all lawful purposes including but not limited to the management and
operation of a mercury processing, recycling and refining business
and operation of a permitted treatment, storage and disposal
facility for mercury-contaminated waste and other Hazardous
Substances, in accordance with the TSD Permit and all other existing
and future Government Permits and Approvals obtained by Tenant;
provided, however, Tenant may not dispose of mercury contaminated
waste or other Hazardous Substances on the Leased Property.
(b) Tenant shall not use or knowingly permit any part of
the Leased Property to be used for any unlawful purpose, or any
purpose other than that specified in subsection (a). Tenant shall
not use or occupy or permit the Leased Property to be used or
occupied, nor do or permit anything to be done in or on the Leased
Property, in any manner which will in any way violate any existing
or future Government Permit or Approval or make void or voidable any
insurance then in force with respect to the Leased Property, or
which will cause or be likely to cause structural damage to any
building or structure or any part thereof, or which will constitute
a public or private nuisance.
(c) Tenant shall not use any part of the Leased Property
for a Precious Metal Operation, except as authorized in that certain
Asset Purchase Agreement dated March 11, 1998 between Tenant, 26
Railroad, MERECO, Xxxxx Xxxxx and Xxx Xxxxx (the "Asset Purchase
Agreement").
2.9 RESTRICTIVE USE OF PROPERTY. As a material inducement to
Tenant's execution of this Lease, Landlord hereby covenants that for so long as
this Lease is in effect, Landlord shall not use any portion of the Property, and
Landlord shall not enter into any lease, license, use or other agreement which
would permit any other party to use any portion of the Property, for retorting
or refining mercury (except for minimal mercury retorting in connection with
Landlord's Precious Metal Operation) and Landlord agrees that this covenant is
intended to be binding upon any party (including Landlord), that now or
hereafter owns the Property or any portion thereof, including but not limited to
the Leased Property, and their successors and assigns and is intended to be a
covenant that shall run with the land. Landlord agrees that this restriction
shall be filed of record against the Property.
ARTICLE 3 - TAXES & PROPERTY EXPENSES
3.1 TAXES. Landlord shall pay all real estate taxes which are
imposed by any Government Entity upon or with respect to the use, occupancy,
possession, operation and/or maintenance of the Property. For the purpose of
Article 3 hereof, real estate taxes shall include, without limitation, (a)
taxes, rates and assessments, general or special, levied or imposed on the
Property, (b) water and sewer charges, rates and installation, repair and
replacement charges, (c) assessments for sewer, water, roads, curbs, gutters and
sidewalks, (d) costs and fees for licenses and permits including with respect to
Government Permits and Approvals, with the exception of costs and fees for those
licenses and permits assumed by Tenant under Section 6.4(b), (e) service charges
with respect to fire and police protection, security or street maintenance and
lighting, and (f) interest and costs with respect to any of the foregoing
(collectively, "Taxes"); provided, however, Landlord shall not pay and Tenant
shall pay taxes imposed upon revenues or income from Tenant's business
operations and taxes or fees pertaining to the TSD Permit.
3.2 LIEN PAYMENT RIGHTS. If Landlord fails to pay when due any Taxes
or any other amount whatsoever which is secured by or constitutes a lien against
the Property which may be foreclosed and which might, in Tenant's reasonable
opinion, jeopardize Tenant's leasehold interest in the Leased Property and
Landlord fails to pay such Taxes or other amount within thirty (30) days after
receiving written notice from Tenant (or sooner in the event foreclosure is
imminent), then Tenant shall have the right to pay such Taxes or other amount
and deduct the amounts thus expended together with interest thereon at ten
percent (10%)
per annum from the next installments of fixed rent, Additional Rent and/or any
other amounts owed Landlord by Tenant.
ARTICLE 4 - INSTALLATIONS, REPAIRS & MAINTENANCE
4.1 INSTALLATIONS. Tenant may make Installations to the Leased
Property without Landlord's consent, except that Tenant shall make no Material
Installations in or to the Leased Property without Landlord's prior written
consent as provided for in Section 4.2, which consent shall not be unreasonably
withheld, conditioned or delayed. Subject to the prior written consent of
Landlord, and to the provisions of this Article, Tenant, at Tenant's expense,
may make Material Installations in or to the Leased Property.
4.2 APPROVAL OF MATERIAL INSTALLATIONS. Before making any Material
Installations, Tenant shall comply with the following:
(a) Tenant shall submit reasonably detailed final plans
and specifications and working drawings (collectively, "Plans") of
the proposed Material Installations at least ten (10) days before
the date it intends to commence the Material Installations.
(b) The Material Installations shall not be commenced
until after Landlord has received a notice from Tenant stating the
date the Material Installations are to commence so that Landlord can
post and record an appropriate notice of nonresponsibility. If
Landlord fails to respond within ten (10) days, the Plans shall be
deemed approved. The Material Installations shall be approved by all
appropriate Government Entities and all applicable Government
Permits and Approvals shall be obtained before commencement of the
Material Installations. Landlord shall cooperate with Tenant in
securing all necessary Government Permits and Approvals.
(c) All Material Installations shall be completed with
due diligence in compliance with the Plans and all Laws.
(d) Before commencing the Material Installations and at
all times during construction, Tenant agrees to carry and will
require Tenant's contractors and subcontractors to carry such
workers compensation, general liability, personal and property
damage insurance as Landlord may reasonably require.
4.3 INSTALLATIONS SURRENDERED. Any Installations made shall remain
on and be surrendered with the Leased Property on expiration or termination of
the Lease Term, provided, however, (a) Tenant may elect, by giving written
notice to Landlord within thirty (30) days before the expiration of the Term, or
within thirty (30) days after termination of the Term, to remove any
Installations that Tenant made to the Leased Property, and (b) Landlord may
elect, by giving written notice to Tenant within thirty (30) days before the
expiration of the Term, to require Tenant to remove any Installations that
Tenant made to the Leased Property, except any loading dock.
4.4 ABANDONMENT OF INSTALLATIONS. All Installations not removed by
Tenant in accordance with a written notice provided in accordance with Section
4.3 shall be deemed abandoned property (hereinafter "Abandoned Leased
Property"). Without liability of any kind whatsoever to Tenant, Landlord may
retain, remove, sell, destroy or otherwise dispose of all (or any part of) any
Abandoned Leased Property.
4.5 REPAIRS AND MAINTENANCE.
(a) Tenant's Obligations. Except as otherwise expressly
provided herein, throughout the Lease Term, Tenant, at Tenant's
expense, will perform all necessary routine maintenance of the
Leased Property, interior and exterior, except for the Common Area
which shall be Landlord's responsibility and except for the Access
Easement Rights. Tenant, at Tenant's expense, will cleanup any
debris in the Common Area other than the Phase I Building if such
debris resulted from Tenant's or Tenant's Affiliate's or their
invitees' use of the Common Area.
(b) Landlord's Obligations. Throughout the Lease Term,
Landlord shall, at Landlord's Expense, maintain, repair and replace
all structural members, walls, footings, roofs, floors and doorways
and other material parts of the buildings located on the Leased
Property and the parking lots and driving lanes, and shall maintain,
repair and replace all mechanical, plumbing, electrical, heating,
ventilating and air conditioning systems and all utility metering
equipment and facilities and other parts of the Leased Property;
except that Tenant shall be responsible for maintenance of all
Installations, Material or otherwise, and, subject to the provisions
of Section 11.3, Tenant shall be responsible for the repair or
replacement of all structures, systems and facilities damaged to the
extent caused by Tenant's or Tenant's Affiliates' negligence.
Landlord shall be responsible for all Corrective Action on the
Property and glass replacement upon the Leased Property. Landlord
shall, at Landlord's expense, maintain the Common Area in a clean,
safe and operable condition, except for Tenant's cleanup obligations
as set forth in Section 4.5(a) hereof, and make all necessary
repairs, replacements and improvements to the Common Area. Landlord
shall pay all utility charges and expenses pertaining to the Leased
Property; provided that, if Tenant is performing waste processing on
the Leased Premises, then during such periods Tenant shall be
obligated to pay the increased cost of the utilities used in
connection with such processing. Any maintenance, repair,
replacement or improvement performed by Landlord on the Leased
Property shall be performed by Landlord in a manner so as to
minimize any disruption to Tenant's business operations.
(c) If a Party fails to fulfill any of its obligations
in this Section 4.5 and such failure continues for ten (10) days
after written notice thereof is sent by the other party (or in the
event of any emergency to avoid further damage to the Leased
Property or Tenant's or Landlord's property or to avoid a disruption
in Tenant's business operations no notice shall be required ), the
other Party may, but shall not be required to, make such repairs and
replacements for the other Party's account, and the nonperforming
party shall pay the other party on demand, the amount thus expended.
To the extent such nondefaulting Party fulfills the obligations of
the defaulting Party as set forth herein, such nondefaulting Party
shall be entitled to receive from the defaulting Party, interest on
the amounts thus expended from the date the expenditure is paid at
an annualized rate of ten percent (10%) as well as a service fee
equal to ten percent (10%) of the amount thus expended.
(d) Notwithstanding any provision in this Section 4.5 or
any other provision of this Lease to the contrary, no provision of
this Lease is intended or shall be construed to require or impose
the obligation, responsibility or liability upon Tenant or any of
Tenant's Affiliates for the implementation of Corrective Action and
remediation of environmental contaminant conditions on, under or
adjacent to the Leased Property arising from the Release of
contaminants of whatever description, caused by or resulting from
Landlord's operations at any time prior to the Lease Commencement
Date (whether or not now known) or for any contaminants which may be
Released from any on-going operations conducted by Landlord,
Landlord's Affiliates or any of their employees, agents,
subsidiaries, lessees (other than Tenant) or related entities.
Similarly, nothing in this Section 4.5 is intended or shall be
construed to reduce the obligations on Landlord to implement and
complete Corrective Action.
(e) Tenant agrees to comply with Landlord's reasonable
rules and policies for usage of the Common Area so long as Landlord
gives Tenant prior written notice of such rules and policies and
modifies such rules and policies to incorporate any reasonable
suggestions of Tenant.
ARTICLE 5 - CONDEMNATION/DESTRUCTION OF PROPERTY
5.1 CONDEMNATION. If the whole of the Leased Property is taken under
power of eminent domain or is conveyed to any entity having the power of eminent
domain under threat of condemnation, this Lease shall terminate on the day on
which the condemnor or buyer takes possession thereof. In the event of any
taking or conveyance of only a part of the Leased Property which shall, in
Tenant's judgment, interfere with Tenant's use or enjoyment thereof, Tenant may
terminate this Lease by giving Landlord written notice thereof not more than
thirty (30) days after the condemnor or buyer takes possession of the part taken
or conveyed. If a partial taking or conveyance shall not interfere with Tenant's
use or enjoyment of the Leased Property, or if Tenant does not terminate the
Lease as hereinbefore provided, then on the day on which the condemnor or buyer
takes possession of the part taken or conveyed, the annual fixed rent and all of
Tenant's other obligations herein shall be reduced in proportion to the value of
the part of the Leased Property so taken or sold, and Landlord shall to the
extent practicable restore the remaining Leased Property to its condition prior
to such partial taking or conveyance, anything elsewhere in this Lease regarding
repair or replacement to the contrary notwithstanding. Notwithstanding anything
to the contrary, Tenant shall be entitled to any award for such taking or sale
of all or part of the Leased Property and/or improvements thereon that relates
to the value of Tenant's interest in the Lease, the value of Tenant's
improvements upon the Leased Property or any of Tenant's relocation expenses.
5.2 DAMAGE AND DESTRUCTION OF LEASED PROPERTY. If the Leased
Property shall be so damaged by fire, lightning, tornado or similar catastrophe
so as to render the Leased Property untenantable or unusable to the Tenant in
whole or in part and the damage is so great that the Leased Property cannot be
rebuilt within ninety (90) days, then Tenant, at its option, may terminate this
Lease, and Tenant shall pay rent only up to the time the Leased Property became
untenantable or unusable, and shall then surrender the Leased Property to
Landlord. If the Leased Property can be made tenantable for Tenant within ninety
(90) days, Landlord shall proceed to do so, and Tenant's rent and all other
obligations due Landlord hereunder shall xxxxx during the period the Leased
Property are untenantable or unusable.
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF LANDLORD.
(a) Landlord represents and warrants that, as of the
date of execution of this Lease, it is a corporation duly created
and validly existing under the laws of the State of New York, with
full legal right, power and authority to enter into and perform its
obligations under this Lease.
(b) Landlord (i) has been duly authorized to enter into
this Lease; (ii) has the requisite approval of its shareholders and
directors; and (iii) to the best knowledge of Landlord, this Lease
will not violate any judgment, order, or Law applicable to the
Landlord.
(c) Landlord represents and warrants as of the Lease
Commencement Date:
(i) The Property complies in all Material
respects with all Laws;
(ii) Landlord has obtained all Government
Permits and Approvals required for the Property by any
applicable Law;
(iii) Landlord is not subject to, has no
notice or knowledge of, and is not required to give any
notice of any environmental claim involving the Property
except as identified in the corrective action module of
the TSD Permit;
(iv) Landlord has provided or otherwise made
available to Tenant all environmental records concerning
the Property which Landlord possesses or could
reasonably have obtained;
(v) There has been no labor or materials
furnished to the Property for which payment has not been
paid;
(vi) Except as set forth in APPENDIX C
annexed hereto, there are no unrecorded mortgages,
contracts, purchase agreements, options, leases,
easements or other agreements or interests relating to
the Property;
(vii) There are no persons in possession of
any portion of the Leased Property other than pursuant
to a recorded document, or a lease which has been
disclosed to Tenant and which will be terminated at or
prior to the Lease Commencement Date;
(viii) There are no encroachments or
boundary line questions affecting the Leased Property
except as set forth in APPENDIX C;
(ix) There are no contracts, leases,
licenses, permits and certificates related to the
Property, other than those copies of which have been
made available to Tenant pursuant to the provisions of
this Agreement;
(x) The Leased Property has legal access to
Railroad Avenue;
(xi) Landlord has not received notice of any
new public improvement project(s), the cost of which a
Government entity may assess against the Property;
(xii) The Property and the improvements
thereon, and their current use, are in Material
compliance with all Government ordinances, statutes,
codes, rules, regulations and orders, including, without
limitation, zoning, building, subdivision, environmental
laws and the Americans with Disabilities Act, and with
all private restrictions (whether or not of record)
affecting the Property;
(xiii) Except as set forth in APPENDIX C,
there is no action, litigation, Government
investigation, condemnation or administrative proceeding
of any kind pending or, to the Landlord's knowledge,
threatened, against Landlord involving any portion of
the Property;
(xiv) Landlord is not in default in the
performance of any of Landlord's obligations under any
easement agreement, covenant, condition, restriction or
other instrument relating to the Property;
(xv) The improvements located on the Leased
Property and all mechanical, electrical, heating, air
conditioning, drainage, sewer, water and plumbing
systems, if any, located on the Leased Property are in
good condition and repair, age and ordinary wear and
tear excepted;
(xvi) To the best of Seller's knowledge,
there are no xxxxx located on the Leased Property which:
are constructed or maintained in such a manner that
their continued use or existence endangers ground water
quality or is a safety or health hazard; are inoperable
or not in use; or which must be sealed under state or
federal law;
(xvii) Neither the execution by Landlord of
the Lease nor the performance by Landlord of the terms
hereof will conflict with or violate any other agreement
or instrument, order or decree to which Landlord is a
party or to which Landlord is bound; and
(xviii) 26 Railroad owns fee title to the
Property.
6.2 REPRESENTATIONS AND WARRANTIES OF TENANT.
(a) Tenant represents and warrants that, as of the date
of execution of this Lease, it is a corporation duly created and
validly existing under the laws of the State of Minnesota, with full
legal right, power and authority to enter into and perform its
obligations under this Lease.
(b) Tenant (i) has been duly authorized to enter into
this Lease; (ii) has the requisite approval of its shareholders and
directors; and (iii) to the best knowledge of Tenant, this Lease
will not violate any judgment, order or Law applicable to the
Tenant.
(c) Tenant is solvent and can operate the Leased
Property in accordance with this Lease and all Government Permits
and Approvals.
6.3 COVENANTS OF LANDLORD.
(a) Landlord shall provide its full cooperation to
Tenant in obtaining any renewals or extensions of or replacements to
the TSD Permit. Tenant shall have complete control of any renewal or
extension of or replacement to the TSD Permit. Tenant will pay
Landlord's reasonable attorney's fees in connection with such
cooperation if approved in advance by Tenant.
(b) Landlord shall have the right to encumber or
mortgage the Property only if Tenant receives a Non-Disturbance and
Attornment Agreement acceptable to Tenant.
(c) Landlord shall maintain at its sole cost, all storm
water runoff related permits for the Property throughout the Term of
this Lease provided Tenant does not conduct any outdoor storage of
mercury contaminated equipment or waste material and immediately
cleans any releases of hazardous substances arising from its
operation and otherwise complies with the best management practices
in its business operations on the Leased Property as required by
such permits.
(d) Landlord shall execute any reasonable estoppel
certificates requested by Tenant within ten (10) days after any such
request be Tenant.
6.4 COVENANTS OF TENANT.
(a) Tenant shall not enter into any assignment or
sublease of the Leased Property without the written consent of
Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Tenant may,
without Landlord's consent, assign this Lease and sublet portions of
the Leased Property to any of Tenant's Affiliates and Tenant may
assign this Lease in connection with the sale of substantially all
of Tenant's assets or the assets of Tenant's Affiliates.
(b) Tenant, at Tenant's expense, shall secure, maintain
and renew, as necessary, all Government Permits and Approvals
required by any Law for Tenant's operations at the Leased Property
including the TSD Permit.
(c) Tenant shall, within ten (10) business days, notify
Landlord in writing of and provide Landlord all documents related
to, any of the following which arise in connection with the Leased
Property during the Lease Term and result from operations or
activities of Tenant, Tenant's Affiliates or their invitees: any
environmental claim, any violation of Law or Release, or any
liability or potential liability for response or for corrective
action, natural resource damage, or other harm pursuant to CERCLA,
RCRA, or any comparable state law.
(d) Tenant shall not increase the capacity of the
Container Storage Building for processable waste without Landlord's
written approval, which will not be unreasonably withheld,
conditioned or delayed.
(e) Tenant, at Tenant's expense, shall take all
reasonable actions to add itself as co- permittee to the TSD Permit
and shall perform all other and further reasonable acts required by
any Government Entity from Tenant with respect to said TSD Permit.
Tenant may terminate the TSD Permit (in compliance with any
applicable Laws) to the extent that Tenant determines that
maintaining the TSD Permit is not in the best interest of its
business or its shareholders and subject to Landlord's right and
election to maintain the TSD Permit after termination of this Lease
as set forth in Section 13.2 hereof.
ARTICLE 7 - COMPLIANCE WITH LAWS
7.1 TENANT RESPONSIBLE FOR COMPLIANCE. Except for any representation
or warranty of Landlord with respect to the Property's current compliance with
any Law as set forth in this Lease or in the Asset Purchase Agreement, Tenant
shall maintain the Leased Property in compliance, in all Material respects, with
all Laws (other than the Americans with Disabilities Act) existing as of the
Lease Commencement Date and be responsible for making any notification or report
concerning the Leased Property to a Government Entity required to be made by any
Law. Notwithstanding the foregoing, Landlord shall bear all responsibility, cost
and expense in connection with complying with and maintaining all storm water
permits and for any action required under any Law as a result of any act or
omission of Landlord on, prior to or after the Term of this Lease.
7.2 CONTESTS TO COMPLIANCE. To the extent permitted by Law, Tenant
may contest, at Tenant's expense and by appropriate proceedings, the validity or
effect of any Law (and Tenant may defer compliance during such contest);
provided, however, that:
(a) Tenant shall conduct the contest diligently;
(b) Tenant shall advise Landlord regularly as to the
status of the contest;
(c) Tenant shall comply with the Law before the Leased
Property may be forfeited or the operations thereon may be
Materially adversely affected by non-compliance with such Law; and
(d) Termination or expiration of the Lease Term during
the pendency of any contest shall not relieve, or otherwise affect
in any way, (i) Tenant's obligation to diligently conduct such
contest to its conclusion, and (ii) Tenant's liability for any and
all costs and expenses of such contest, including, without
limitation, payment of any penalty, fine, settlement or judgment
imposed as a result of such contest.
ARTICLE 8 - PHYSICAL CONDITION OF PROPERTY
8.1 TENANT ACCEPTS CONDITION OF LEASED PROPERTY. Tenant acknowledges
that, except as to the representations and warranties expressly contained in
this Agreement and in the Asset Purchase Agreement, Landlord has not made and
shall not be deemed to have made, any representation or warranty, express or
implied, as to the value, compliance with specifications or legal requirements,
condition, merchantability, design, quality, durability, operation or fitness
for use or purpose of the Leased Property or any portion thereof, or any other
representation or warranty whatsoever, express or implied, with respect to the
Leased Property or any portion thereof or otherwise.
ARTICLE 9 - RIGHT OF ENTRY
9.1 RIGHT TO INSPECT. Tenant authorizes Landlord and Landlord's
authorized representative(s) to enter the Leased Property at all reasonable
times during usual business hours upon twenty-four (24) hour advance written
notice but at any time in case of emergency (and by force if necessary in such
event) to visually inspect the Leased Property and/or to perform any maintenance
or to make any repairs to the Leased Property pursuant to Section 4.5 which
Tenant has failed to perform; provided, however, that such actions shall be
taken in a manner that minimizes any interference with Tenant's business.
9.2 RIGHT TO PERFORM TESTING. Tenant shall allow Landlord, its
agents and representatives, upon reasonable written notice to Tenant and at
Landlord's reasonable discretion and expense, to inspect the Leased Property and
conduct an environmental assessment, including invasive soil or groundwater
sampling; provided, however, that such actions shall be taken in a manner that
minimizes any interference with Tenant's business. All work plans, data and
reports generated by or on behalf of Landlord shall be provided to Tenant within
five (5) business days of receipt by Landlord.
9.3 RIGHT TO PERFORM CERTAIN ACTS. Landlord and its duly authorized
agents shall have the right at all reasonable times, and upon at least
twenty-four (24) hours written notice to enter the Leased Property (i) to do all
things necessary and convenient for the performance of the Corrective Action;
provided, however, that such actions shall be taken in a manner that minimizes
interference with Tenant's business. Tenant and Landlord shall mutually agree
upon the scheduling of the Corrective Action to minimize the interference with
Tenant's business.
9.4 LANDLORD LIABLE FOR DAMAGES. Landlord shall be liable to Tenant
for damages caused to Tenant by Landlord, Landlord's Affiliates or their
invitees for any material disruption to Tenant's business and for any damages
caused to the Leased Property or any of Tenant's assets located on the Leased
Property resulting from any actions taken hereunder by Landlord, Landlord's
Affiliates or their invitees.
ARTICLE 10 - INDEMNIFICATION
10.1 LANDLORD LIABILITY LIMITED. Except as otherwise provided herein
and subject to the provisions of Section 11.3, Landlord and Landlord's
Affiliates shall not be liable to Tenant for any injury or damage to persons or
property resulting from any cause of whatsoever nature unless caused by or due
to the willful acts or omissions or negligent acts or omissions or negligence of
Landlord or Landlord's Affiliates or arising from contamination on or migration
or Release from or to the Property caused by Landlord, Landlord's Affiliates or
their respective invitees, or their operations, either prior to, on or following
the Lease Commencement Date which shall include but shall not be limited to any
Corrective Action.
10.2 TENANT LIABILITY LIMITED. Except as otherwise provided herein
and subject to the provisions of Section 11.3, Tenant and Tenant's Affiliates
shall not be liable to Landlord for any injury or damage to persons or property
resulting from any cause of whatsoever nature unless caused by or due to the
willful or negligent acts or omissions or negligence of Tenant or Tenant's
Affiliates following the Lease Commencement Date; provided however, that
Landlord shall remain liable for any and all liability arising from
contamination on or migration or Release from the Property caused by Landlord,
Landlord's Affiliates or their invitees, or their operations, either prior to,
on or following the Lease Commencement Date which shall include but shall not be
limited to any Corrective Action.
10.3 INDEMNIFICATION BY TENANT. In furtherance (and not in
limitation) of the terms, covenants, conditions and provisions of this Lease and
subject to the provisions of Section 11.3, Tenant agrees to indemnify Landlord
and Landlord's Affiliates and hold Landlord and Landlord's Affiliates harmless
from and against all loss, liability, obligation, damage, penalty, settlement,
cost, charge and expense of any kind whatsoever (including, but not limited to
reasonable attorneys', engineer's, architects' fees or other expert's fees),
whensoever asserted or occurring, which Landlord and/or Landlord's Affiliates
may incur or pay out, by reason of:
(a) any failure of or by Tenant to perform or comply
with any and all of the terms, covenants, conditions and provisions
of this Lease, but only if and to the extent that such performance
or compliance may be accomplished by or is applicable to Tenant;
and/or
(b) any work or thing of whatsoever kind done in, on, or
about the Leased Property by Tenant, Tenant's Affiliates, or their
respective invitees (including, but not limited to, construction,
alterations, repairs, or similar acts of any kind whatsoever, and
whether or not authorized by this Lease), including, but not limited
to claims made under the State's Labor Law; and/or
(c) any negligent, unlawful or willful act or omission
of Tenant, Tenant's Affiliates or their invitees; and/or
(d) any injuries to persons or property occurring in,
on, or about the Leased Property caused by Tenant, Tenant's
Affiliates, or their contractors or invitees (provided, however,
that this subsection shall not apply to injuries to persons or
property caused by willful acts or omissions or negligence of or
from contamination of the Property by Landlord, Landlord's
Affiliates or their invitees or resulting from anything associated
or connected with the Corrective Action); and/or
(e) any liability for response or corrective action,
natural resource damage, or other harm pursuant to CERCLA, RCRA, the
New York Navigation Law or any other Law in any way caused, related
to or arising out of Tenant's, Tenant's Affiliates' or their
invitees' activities on the Leased Property other than Corrective
Action; and/or
(f) any environmental claim or health and safety
condition (including any common law claim) in any way caused,
related to or arising out of Tenant's, Tenant's Affiliates' or their
invitees' activities on the Leased Property; and/or
(g) any violation of any Law or Release, Threatened
Release or disposal of a Hazardous Substance in any way caused by or
arising out of Tenant's, Tenant's Affiliates' or their invitees'
activities on the Leased Property.
10.4 INDEMNIFICATION BY LANDLORD. In furtherance (and not in
limitation) of the terms, covenants, conditions and provisions of this Lease and
subject to the provisions of Section 11.3, Landlord agrees to indemnify Tenant
and Tenant's Affiliates and hold Tenant and Tenant's Affiliates harmless from
and against all loss, liability, obligation, damage, penalty, settlement, cost,
charge and expense of any kind whatsoever (including, but not limited to
reasonable attorneys', engineer's, architects' fees or other expert's fees),
whensoever asserted or occurring, which Tenant and/or Tenant's Affiliates may
incur or pay out, by reason of:
(a) any failure of or by Landlord to perform or comply
with any and all of the terms, covenants, conditions and provisions
of this Lease, but only if and to the extent that such performance
or compliance may be accomplished by or is applicable to Landlord;
and/or
(b) any work or thing of whatsoever kind done in, on, or
about the Property by Landlord, Landlord's Affiliates, or their
respective invitees (including, but not limited to, construction,
alterations, repairs, or similar acts of any kind whatsoever, and
whether or not authorized by this Lease), including, but not limited
to claims made under the State's Labor Law; and/or
(c) any negligent, unlawful or willful act or omission
of Landlord, Landlord's Affiliates, or their invitees; and/or
(d) any injuries to persons or property occurring in,
on, or about the Property caused by Landlord, Landlord's Affiliates,
or their respective invitees (provided, however, that this
subsection shall not apply to injuries to persons or property caused
by willful acts or omissions or negligence of or from contamination
of the Leased Property by Tenant, Tenant's Affiliates or their
invitees); and/or
(e) any liability for response or corrective action,
natural resource damage, or other harm pursuant to CERCLA, RCRA, the
New York Navigation Law or any other Law in any way caused, related
to or arising out of the use, operation or activities (past, present
and future) by Landlord, Landlord's Affiliates or their invitees
activities on the Property, including but not limited to any and all
liabilities and costs associated with the Corrective Action; and/or
(f) any environmental claim or health and safety
condition (including any common law claim) in any way caused,
related to or arising out of the use, operation or activities (past,
present and future) by Landlord, Landlord's Affiliates or their
respective invitees activities on the Property, including but not
limited to any and all liabilities and costs associated with the
Corrective Action; and/or
(g) any violation of any Law or Release, Threatened
Release or disposal of a Hazardous Substance in any way caused by or
arising out of Landlord's, Landlord's Affiliates' or their invitees'
activities on the Property; and/or
(h) any liability for response or corrective action,
natural resource damages, or other harm pursuant to CERCLA, RCRA,
the New York Navigation Law or any other Law, or any environmental
claim or health and safety condition or any violation of any Law or
Release, Threatened Release or disposal of a Hazardous Substance
existing as of the Lease Commencement Date or in any way caused,
related to or arising out of the use, operation or activities on the
Property prior to the Lease Commencement Date.
10.5 INDEMNIFICATION OBLIGATION CONTINUING. The indemnification
obligations in this Article shall terminate on the expiration or termination of
this Lease. Notwithstanding the foregoing, all of Landlord's indemnification and
other obligations related to or connected with any Corrective Action and
obligations related to or connected with environmental claims or environmental
matters shall forever survive the expiration or termination of this Lease for
any reason. To the extent that Landlord has provided Tenant with notice of any
alleged environmental violations for which indemnification is mandatory by
Tenant under Section 10.3 and which allegation is based upon an environmental
assessment of the Leased Property, the indemnification obligations of Tenant
shall survive the expiration or termination of this Lease provided the Landlord
asserts a claim hereunder within a period of one year. Said one-year period
shall not be applicable with respect to a violation by Tenant of Section 6.4(c)
hereof; in the event of such violation of Section 6.4(c), the one-year period
shall begin at the earlier of the time Tenant gives the notice required by
Section 6.4(c) hereof or Landlord discovers Tenant's violation of Section
6.4(c).
10.6 INDEMNIFICATION PROCEDURES. In the event any demands or claims
are asserted against a party entitled to indemnification hereunder ("Indemnified
Party"), or any actions, suits or proceedings are commenced against an
Indemnified Party for which the other party to this Lease ("Indemnifying Party")
is obligated to indemnify an Indemnified Party, then the Indemnified Party shall
give notice thereof to the Indemnifying Party within a reasonable amount of time
in order to permit the Indemnifying Party the necessary time to evaluate the
merits of such demand, claim, action, suit or proceeding and defend, settle or
compromise the same so that the Indemnifying Party's rights are not materially
prejudiced. Within ten (10) business days after such notice, the Indemnifying
Party shall assume the defense thereof with counsel chosen by the Indemnifying
Party or its insurer and reasonably acceptable to the Indemnified Party. The
Indemnifying Party shall not be liable for any costs or expenses incurred by a
Indemnified Party in connection with any demand, claim, action, suit or
proceeding for which the Indemnifying Party is obligated to indemnify the
Indemnified Party under this Lease, provided that the Indemnifying Party shall
have assumed the defense thereof in accordance with this Section. The
Indemnified Party shall be entitled to participate in (but not control) the
defense of any such action, with its counsel and at its own expense. If the
Indemnifying Party does not assume the defense of any such claim or litigation
resulting therefrom, (a) an Indemnified Party may defend against such claim or
litigation, in such manner as it may deem appropriate, at the Indemnifying
Party's expense, including, but not limited to, settling such claim or
litigation, after giving notice of the same to the Indemnifying Party on such
terms as such Indemnified Party may deem appropriate, and (b) the Indemnifying
Party shall be entitled to participate in (but not control) the defense of such
action, with its own counsel and at its own expense.
ARTICLE 11- INSURANCE
11.1 TENANT'S INSURANCE. Tenant shall at all times and at its
expense during the Term of this Lease maintain liability insurance on the Leased
Property with respect to bodily injury, property damage, personal injury and
advertising injury in the sum of at least $1,000,000 in the aggregate. In
addition, Tenant shall keep in force pollution legal liability insurance in the
sum of at least $2,000,000 for pollution caused by Tenant on the Leased
Property. In both cases, the Landlord shall be named as an additional insured,
and Tenant shall deliver certificates of such insurance to Landlord, with a
provision that the insurer shall
undertake to give Landlord notification of cancellation of such insurance at
least thirty (30) days prior to such cancellation.
11.2 LANDLORD'S INSURANCE. Landlord shall at all times and its
expense maintain a policy of all risk property insurance for the full insurable
replacement value of all real property improvements on the Property, but in any
case not less than $1,000,000, including an endorsement for Building Ordinance
Coverage in the amount of $250,000, or higher amount if Tenant agrees to pay the
additional premium. In the event the Installations made by Tenant to the
Container Storage Building results in a material increase in the cost of such
all risk property insurance, Tenant shall pay such increase as Additional Rent.
Tenant shall be named as a loss payee as its interests appear on the all risk
property insurance policy, and Landlord shall deliver certificates of such
insurance to Tenant, with a provision that the insurer shall undertake to give
Tenant notification of cancellation of such insurance at least thirty (30) days
prior to such cancellation. Landlord agrees that the proceeds of any such
insurance shall be utilized to repair or replace the real property improvements
unless Tenant determines to terminate this Lease pursuant to Section 5.2 hereof
and shall provide Tenant reasonable assurance that the proceeds will be used in
such manner, including the escrow of such proceeds with Tenant.
11.3 WAIVER OF RECOVERY RIGHTS. Notwithstanding anything to the
contrary in this Lease, to the extent any loss is covered by insurance, Landlord
and Tenant each hereby waive any and all rights of recovery, claim, action or
cause of action, against the other, its Affiliates and each of their directors,
officers, shareholders and employees for any loss or damage that may occur to
the Leased Property, the Property and any improvements thereon or any personal
property of such party by reason of any cause, including the negligence or
willful act or omission of the other party hereto, its Affiliates and each of
their directors, officers, shareholders and employees.
ARTICLE 12 - EVENTS OF DEFAULT
12.1 TENANT DEFAULTS. Occurrence of any of the following shall
constitute an "Event of Default" by Tenant under this Lease:
(a) If Tenant shall fail to pay any installment of rent
or any other charge required to be paid by Tenant hereunder, within
(30) days after receiving written notice of such failure from
Landlord.
(b) If Tenant shall fail to perform or observe any other
term, provision, covenant, condition or requirement of this Lease to
be performed or observed and such failure shall continue for thirty
(30) days after written notice thereof from Landlord, provided that
if such failure cannot reasonably be cured within such thirty (30)
day period and Tenant commences to cure such failure within such
period and is diligently prosecuting the same, then the same shall
not constitute an Event of Default hereunder.
(c) Upon Tenant's insolvency, making an assignment for
the benefit of its creditors, appointment of a receiver, or the
filing of any action (voluntary or involuntary) by or on behalf of
Tenant for the relief of debtors, and such action is not dismissed
within sixty (60) days.
(d) Any representation and warranty made by Tenant under
or in connection with this Lease or the Asset Purchase Agreement
shall prove to have been incorrect in any Material respect when
made.
12.2 LANDLORD DEFAULTS. Occurrence of any of the following shall
constitute an "Event of Default" by Landlord under this Lease:
(a) If Landlord shall fail to perform or observe any
term, provision, covenant, condition or requirement of this Lease or
the Asset Purchase Agreement on the part of Landlord to be performed
or observed, and such failure shall continue for thirty (30) days
after written notice thereof from Tenant, provided that where such
failure cannot reasonably be cured within such thirty (30) day
period and Landlord commences to cure such failure within such
period and is diligently prosecuting the same, then the same shall
not constitute an Event of Default hereunder, but in no event shall
such cure period exceed ninety (90) days.
(b) Upon Landlord's insolvency, making an assignment for
the benefit of its creditors, appointment of a receiver, or the
filing of any action (voluntary or involuntary) by or on behalf of
Landlord for the relief of debtors, and such action is not dismissed
within sixty (60) days.
(c) Any representation and warranty made by Landlord
under or in connection with this Lease or the Asset Purchase
Agreement shall prove to have been incorrect in any Material respect
when made.
(d) Landlord's failure to comply in all Material
respects with any Corrective Action obligations.
(e) A breach by Landlord of Section 2.2 of this Lease.
(f) Any default (which remains uncured after any
applicable notice and cure period) by 26 Railroad or MERECO under
the Asset Purchase Agreement or any other agreement between either
of such parties and Tenant or Tenant's Affiliates.
12.3 REMEDIES. Upon the occurrence of any Event of Default
hereunder, the nondefaulting party, may, at its option, terminate this Lease
pursuant to Article 13 by giving written notice thereof, in which event this
Lease shall cease and terminate. Upon the occurrence of an Event of Default by
Tenant, Landlord may proceed to recover possession of the Leased Property in
accordance with the provisions of Section 12.4 herein, or by any legal process
as may at the time be in operation and force in like cases relative to
proceedings between lessors and lessees, and Tenant shall pay for any court
costs relative to such proceedings and reasonable legal fees. On the occurrence
of an Event of Default by either Party, the nondefaulting Party shall be
entitled to all remedies at law or in equity and the nondefaulting Party shall
be entitled to recover its costs, including reasonable attorneys' fees, from the
defaulting party. In addition to all other remedies Tenant may have under this
Lease or other agreements with Landlord, upon the occurrence of an Event of
Default by Landlord, Tenant may, at its sole discretion, use and apply any fixed
rent or Additional Rent owed to Landlord under this Lease to pay for the
performance of any duties of Landlord hereunder which Landlord has failed to
perform, provided said failure constitutes a material breach under this Lease.
If the Event of Default by Landlord consists of the termination or material
adverse modification of the Access Easement Rights and Landlord is not using all
reasonable efforts to secure reasonable access rights from Railroad Avenue to
the Property, then Tenant shall have the right to apply any and all payments due
Landlord hereunder to any legal and other fees and expenses related to obtaining
reasonable access rights from Railroad Avenue to the Property and/or enforcing
Tenant's right to use the Access Easement Rights.
12.4 ADDITIONAL REMEDIES OF LANDLORD. Upon the occurrence of any
Event of Default hereunder by Tenant, Landlord may require that Tenant, and
Tenant shall, immediately vacate and surrender the Leased Property. If Tenant
does not so vacate and surrender, Landlord shall have the right, without further
demand or notice, to re-enter the Leased Property (Tenant hereby waiving any and
all right to any statutory notice
of re-entry) and remove all persons and property therefrom. Such re-entry shall
be allowed by Tenant without interference or hindrance and Landlord shall not be
liable in damages for re-entry or be guilty of trespass. Any remedies
specifically provided for in this Section 12.4 are in addition to and not
exclusive of any other remedy available to Landlord.
12.5 ADDITIONAL REMEDIES OF TENANT. If either 26 Railroad or MERECO
fails to pay any amounts it owes Tenant or any of Tenant's Affiliates pursuant
to this Lease, the Asset Purchase Agreement or any other agreement between
either of such parties and Tenant or Tenant's Affiliates, Tenant shall have the
right to offset such amounts which have not been paid against all amounts which
are owed by Tenant to Landlord under this Lease, including the fixed rent and
any Additional Rent.
12.6 NOT RELEASED. Exercise by a nondefaulting party of a remedy set
forth in this Article 12 shall not release the defaulting party from its
obligations under this Lease for the remainder of the then current Term (namely
the period between the date the nondefaulting party exercises its remedy and the
date this Lease would have expired but for the Event of Default and/or the
nondefaulting party's exercise of its remedy) even though the remedy exercised
shall have been the termination of this Lease.
12.7 TSD PERMIT. In the event of termination of the Lease, each
party agrees to cooperate and submit the documentation necessary to DEC so that
the TSD Permit is modified to reflect the parties respective obligations.
12.8 MITIGATION. Both parties shall take all reasonable actions to
mitigate its damages upon any breach hereof by the other party.
12.9 SHORTENING OF CURE PERIODS. The period(s) in which to cure any
Event of Default by Tenant may be reduced by Landlord by writing only in the
event a shorter period is required by any Government Entity or Law.
ARTICLE 13 - TERMINATION
13.1 SURRENDER OF LEASED PROPERTY. Upon the termination or
expiration of this Lease, Tenant shall surrender the Leased Property to Landlord
in the same condition, reasonable wear and tear and insurable casualty damage
excepted.
13.2 CLOSURE OF LEASED PROPERTY. Upon the termination or expiration
of this Lease, Tenant shall implement closure of the Container Storage Building
as required under the TSD Permit. Such closure shall be performed by Tenant, at
Tenant's expense, and shall be fully and timely performed in compliance with the
closure plan made part of the TSD Permit and approved by the DEC, and in
compliance with all applicable Laws. By giving Tenant written notice prior to
Tenant's implementation of such closure, Landlord may, in its discretion, keep
the TSD Permit in effect after the expiration or termination of this Lease, but
only if Tenant is fully relieved of its closure obligations under the TSD
Permit. Nothing herein relieves Tenant of its removal obligations under Section
13.5 hereof.
13.3 NONCOMPETE OBLIGATION OF LANDLORD.
(a) If Landlord elects to maintain the TSD Permit
pursuant to Section 13.2 hereof, neither Landlord, Landlord's
Affiliates or any of their successors, assigns, lessees, licensees
or any other person or entity obtaining any interest in or right to
the Property, shall for the period of Landlord's
noncompete obligation under the Asset Purchase Agreement, retort, treat, store
or manage on the Property any materials that require treatment, disposal, or
special handling because of their mercury or PCB content.
(b) In the event that the above covenant not to compete
and restrictions with respect to the Property is considered by a
court of competent jurisdiction to be excessive in its duration or
in the area to which it applies, it shall be considered modified and
valid for such duration and for such area as said court may
determine reasonable under the circumstances. In recognition of the
irreparable harm that a violation of the foregoing paragraph would
cause to Tenant, 26 Railroad and MERECO each agree that Tenant shall
have the right to enforce compliance with this section 13.3 by
specific remedies, which shall include, among other things,
temporary restraining orders and temporary and permanent
injunctions.
13.4 TERMINATION FOR FORCE MAJEURE. If an event occurs that
Materially impairs Tenant's ability to conduct Tenant's operations at the
Property for at least thirty (30) days, Tenant may terminate this Lease after
the expiration of such thirty (30) day period and the fixed rent, all Additional
Rent and any other obligations due Landlord hereunder shall be abated from the
date such event occurs. Upon termination, the obligations of the Parties shall
cease except for obligations that have accrued prior to the effective date of
such termination, any indemnification obligations set forth herein and any
closure obligation of either party pursuant to Section 13.2. If Tenant does not
elect to terminate this Lease, the fixed rent, all Additional Rent and any other
obligations due Landlord hereunder shall be abated during the existence of such
event.
13.5 OBLIGATION TO REMOVE. Prior to the end of the Lease Term (or
other expiration of this Lease), at Tenant's expense, Tenant shall:
(a) remove all of Tenant's Property from the Leased
Property;
(b) remove all Tenant's waste (whether regulated or
unregulated), and Tenant's inventory, from the Leased Property;
(c) repair all damage to the Leased Property caused by
Tenant during any such removal other than screw and nail holes and
similar minor damage; and
(d) to the extent Landlord provides written notice to
Tenant and provides reasonable supporting evidence that there exists
on the Leased Property any Material quantities of Hazardous
Substances released by Tenant during the Lease Term, perform such
corrective action as necessary to remove such Material quantities of
Hazardous Substances from the Leased Property released by Tenant
during the Lease Term subject to the terms of Section 10.5 hereof.
13.6 REMOVAL OF TENANT FROM GOVERNMENT PERMITS AND APPROVALS. Upon
termination or expiration of this Lease, Tenant shall perform all reasonable
acts to remove itself as a co-permittee to any then existing Government Permits
and Approvals, and shall perform all further reasonable acts required by any
Government Entity with respect to said Government Permits and Approvals arising
solely from Tenant's activities. Landlord shall reasonably assist Tenant in the
performance of this obligation.
ARTICLE 14 - MISCELLANEOUS
14.1 BINDING EFFECT. This Lease shall be binding upon and enure to
the benefit of Landlord and Tenant and their respective successors and permitted
assigns. Except as expressly set forth herein, there are no third parties
intended to be benefited by this Lease.
14.2 NOTICES. All notices required or desired to be given by either
party to the other shall be (i) personally delivered, (ii) sent by recognized
overnight courier or by certified mail, return receipt requested, postage
prepaid, and shall be effective upon actual receipt as verified by written
acknowledgment of delivery in the case of personal or overnight delivery and by
the return receipt in the case of certified mail, or (iii) via telecopy.
If to Landlord:
Mr. Xxxxx Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
With copy to:
Young & Xxxx
Executive Xxxxx
0 Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxx
and
Xxxxxxxx Xxxxxxxx & Xxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Apple
If to Tenant:
Xxxx Xxxxxxx
MWS New York, Inc.
000 Xxxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
With copy to:
Xxxxxx Xxxxxxx Xxxxxx & Brand, LLP
3300 Norwest Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attn: Counsel for Mercury Waste Solutions
Or to such other person, address or number as the party entitled to such notice
or communication shall have specified by notice to the other party in accordance
with the provisions of this Section. Any such notice or other communications
shall be deemed given: (i) if mailed, when deposited in the mail, properly
addressed and the postage prepaid; or (ii) if sent by telecopy, when
transmitted.
14.3 MEMORANDUM OF LEASE. Contemporaneously with the execution of
this Lease, Landlord and Tenant shall execute a Memorandum of Lease in the form
prepared by Tenant and approved by Landlord
(which approval shall not be unreasonably withheld, conditioned or delayed) and
such memorandum shall be recorded at the sole cost and expense of Landlord.
14.4 SEVERABILITY. Any provision of this Lease which shall be held
invalid, void, unenforceable or illegal shall in no way affect, impair, or
invalidate any other provision, and the remaining provisions shall remain in
full force and effect.
14.5 AMENDMENTS. This Lease may not be modified or amended except in
a writing signed by all parties hereto.
14.6 APPENDICES. All appendices referenced as attached to this Lease
are incorporated herein as though set forth in full herein.
14.7 CAPTIONS. Captions used in this Lease are for convenience of
reference only and shall not define, limit or expand the terms hereof.
14.8 GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State of New York.
14.9 WAIVER. A waiver by either party of a breach of any provision
of this Lease shall not operate or be construed as a waiver of any subsequent
breach by either party.
ARTICLE 15 - DISPUTE RESOLUTION
15.1 ARBITRATION. Any controversy or claim arising out of or
relating to this Lease or breach thereof, shall be settled by arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association and judgment upon the award rendered by the arbitrator may be
entered in any Court having jurisdiction thereof. The arbitration shall be held
in the County of Albany, State of New York, and shall be conducted before a
single arbitrator mutually agreeable to the parties hereto or, if no agreement
can be reached, selected by the American Arbitration Association. The
nonprevailing party agrees to pay the prevailing parties' costs of arbitration
and enforcement, including reasonable attorneys' fees.
15.2 FORUM SELECTION: VENUE. Except as other provided in Section
15.1, all questions or controversies arising out of or in any way relating to
this Agreement shall be submitted to the Albany County Supreme Court or, in the
event the Albany County Supreme Court is without subject matter jurisdiction, to
the proper Court of the State of New York having subject matter jurisdiction,
and the parties submit themselves to the personal jurisdiction of said Court as
the case may be, and any service of a summons, process or other paper in
connection with such proceeding may be made by giving notice as provided in this
Lease. If either party resorts to suit or other legal proceedings to enforce any
right or remedy hereunder, the nonprevailing party agrees to pay the prevailing
parties' costs of suit and enforcement, including reasonable attorneys' fees.
ARTICLE 16 - RIGHT OF FIRST REFUSAL
16.1 GRANT OF RIGHT. In consideration of Tenant entering into this
Lease, Landlord hereby grants, conveys and transfers to Tenant during the Term
of the Lease, subject to an existing right of refusal set forth on APPENDIX D,
the first and prior right and privilege of purchasing the Property, or to the
extent that any portion of or interest in the Property other than the entire fee
interest is subject to purchase, then such portion thereof or interest therein
(the "Offered Property") (the "Right of First Refusal").
16.2 THIRD PARTY OFFER. Upon receipt by Landlord of a written offer
reasonably acceptable to Landlord to purchase the Offered Property, made in good
faith by a Third Party (the "THIRD PARTY OFFER"), Landlord shall give written
notice to Tenant of the Third Party Offer, attaching thereto a true and correct
copy of the Third Party Offer, which notice shall contain Landlord's offer to
sell the Offered Property to Tenant on the terms and conditions set forth in the
Third Party Offer (the "THIRD PARTY NOTICE").
16.3 ACCEPTANCE/REJECTION. Tenant shall have twenty (20) business
days following the day it receives the Third Party Notice to elect to accept or
reject the terms and conditions thereof. Tenant shall notify Landlord in writing
of Tenant's election to accept the terms of the Third Party Offer before the
expiration of said twenty (20) business day period (the "ELECTION PERIOD"). In
the event Tenant elects to reject the terms of the Third Party Offer or fails to
respond to the Third Party Offer, Landlord shall have the limited right to sell
the Offered Property to the Third Party pursuant to the terms of the Third Party
Offer. If Tenant elects to reject the terms of the Third Party Offer or fails to
respond to the Third Party Offer and Seller does not sell the Offered Property
to the Third Party pursuant to the terms of the Third Party Offer within sixty
(60) days after the Election Period, Tenant's Right of First Refusal shall
continue in full force and effect. Landlord may not sell the Offered Property to
the Third Party on terms different than those specified in the Third Party Offer
without first giving to Tenant the Third Party Notice required in Section 16.2.
16.4 DEFINITION OF "THIRD PARTY". As used herein, the term "Third
Party" shall mean a person or entity unrelated to, unaffiliated with, not acting
in concert with, and not connected in any manner whatsoever to Landlord or an
Affiliate of Landlord.
(SIGNATURES CONTINUE ON NEXT PAGE)
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease to
be effective as of the date first above written.
MWS NEW YORK, INC.
By: s/ Xxxx X. Xxxxxx
------------------------------
Name: Xxxx X. Xxxxxx
Title: Its President
MERCURY REFINING COMPANY, INC.
By: s/ Xxx Xxxxx
------------------------------
Name: Xxx Xxxxx
Title: Secretary
00 XXXXXXXX XXX, INC.
By: s/ Xxxxx Xxxxx
------------------------------
Name: Xxxxx Xxxxx
Title: President
Certain Appendices to the Lease Agreement are not being filed herewith. The
Registrant undertakes to furnish a copy of any omitted Appendix to the
Commission upon request. Pursuant to Item 601(b)(2) of Regulation S-K, the
following is a list of the omitted Appendices:
LIST OF APPENDICES
Appendix A: Survey
Appendix B: Legal Description of Property
Appendix C: Exceptions to Landlord's Representations
Appendix D: Description of Existing Right of First Refusal
