AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "LEASE"), dated as of
April 1, 1999, between XXXXXX ALUMINUM & CHEMICAL CORPORATION, a Delaware
corporation (the "LANDLORD"), and AKW L.P., a Delaware limited partnership,
having an address at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxx 00000
(the "TENANT") amends and restates that certain Lease Agreement dated as of
May 1, 1997, between Landlord and Tenant (the "ORIGINAL LEASE").
W I T N E S S E T H :
WHEREAS, Landlord, Accuride Corporation (collectively, the
"CONTRIBUTING PARTIES"), Tenant and AKW General Partner L.L.C., a Delaware
limited liability company, entered into a Contribution Agreement, dated as of
May 1, 1997 (the "CONTRIBUTION AGREEMENT"), pursuant to which, INTER ALIA,
the Contributing Parties contributed or otherwise caused to be transferred to
Tenant certain assets and rights necessary to permit Tenant to engage in the
Business (as defined in the Contribution Agreement); and
WHEREAS, Landlord is the owner of certain improved real property
located at 0000 X. 00xx Xxxxxx, Xxxx, Xxxxxxxxxxxx (the "PLANT") at which
Landlord conducted certain businesses, including without limitation, certain
aspects of the Business; and
WHEREAS, pursuant to the Contribution Agreement, Landlord and Tenant
agreed to enter into the Original Lease in order to provide for the leasing
by Landlord to Tenant of certain portions of the Plant used in connection
with the Business, all on the terms and conditions provided therein; and
WHEREAS, subsequent to the execution of the Original Lease, Landlord
ceased to independently conduct manufacturing operations at the Plant and
Tenant began to utilize space at the Plant in addition to the Demised
Premises (as defined in the Original Lease); and
WHEREAS, the Landlord and Tenant desire to enter into this Amended and
Restated Lease Agreement in order to amend the Original Lease to include the
Additional Premises (as defined) and to incorporate certain other changes and
modifications reflected herein;
NOW, THEREFORE, in consideration of the mutual covenants, and subject
to the terms and conditions, contained herein, the parties hereto agree as
follows:
ARTICLE 1
PREMISES - TERM
Section 1.1 (a) (i) The Landlord, for and in consideration of the
rents, covenants and agreements contained in this Lease to be paid, kept and
performed by the Tenant, demises and leases to the Tenant, and the Tenant
does hereby take and hire, upon and subject to the covenants, terms,
conditions and agreements in this Lease, which the Tenant agrees to keep and
perform, certain portions of the Plant which are described below and are
shown on EXHIBIT "A-1" attached hereto and made a part hereof:
(1) Building 11- an approximately 26,650 square foot building used for
the storage of raw materials, billet preparation and storage for
maintenance and production supplies;
(2) Building 22- an approximately 52,650 square foot building which
houses the hydraulic presses used to forge and extrude aluminum
products, and also houses the hydraulic pumps and contains office
space and a maintenance area;
(3) Building 26 - an approximately 33,750 square foot building used
for receiving production and maintenance supplies, shipping
products and spinning and heat treating products;
(4) Building 16 - an approximately 2,500 square foot building which
houses certain employee lockers;
(5) The second floor of the Administration Building;
(6) The training room located in Building 1 comprising an
approximately 1,600 square foot area;
(7) The dispensary located in Building 2 comprising an approximately
000 xxxxxx xxxx xxxx;
(8) Building 15A - an approximately 1,800 square foot building used to
house compressors;
(9) Building 19 - an approximately 800 square foot building used as an
oil house;
(10) Building 24 - an approximately 6,500 square foot building used as
a battery shop;
(11) The Substation;
(12) Building 3 - an approximately 16,575 square foot building used as
a die shop;
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(13) Building 4 - an approximately 16,575 square foot building used as
a die shop;
(14) The southern portion of Building 9 - comprising an approximately
2,200 square foot space used as a spinner/furnace loading area;
(15) Building 10 - an approximately 16,800 square foot building used as
a storage and layout area;
(16) Building 12 - an approximately 77,109 square foot area, including
Xxxxxxxxx 00X, 00X, 12N and 12S, which houses certain maintenance
areas, a maintenance and scrap loading dock and solution/aging
furnaces;
(17) Building 13 - an approximately 2,800 square foot area used for lab
and engineering purposes; and
(18) Building 25 - an approximately 6,500 square foot store room.
(ii) For purposes of this Lease, items (1) through (4) and the
eastern portion of item (5) above are collectively referred to in this Lease
as the "ORIGINAL DEMISED PREMISES", items (6) through (11) are collectively
referred to in this Lease as the "DESIGNATED ORIGINAL LICENSED PREMISES", and
the remaining portion of item (5) and items (12) through (18) above are
collectively referred to in this Lease as the "ADDITIONAL PREMISES", and the
Original Demised Premises, the Designated Original Licensed Premises and the
Additional Premises are collectively referred in this Lease to as the
"DEMISED PREMISES".
(iii) The Landlord also hereby grants to the Tenant, its agents,
employees, vendors and contractors a license to use, during the Term, on a
non-exclusive basis, the roadways, sidewalks, designated parking lots,
portions of the Plant not within the Demised Premises as reasonably necessary
in order for AKW to traverse from one portion of the Demised Premises to
another in connection with the operation of its business, and other areas as
generally shown on EXHIBIT "A-1" attached hereto and made a part hereof as
the "Licensed Premises" (the "LICENSED PREMISES", and together with the
Demised Premises, the "PREMISES") for purposes of access to and parking in
the vicinity of the Demised Premises. Landlord may, at its option, at any
time during the Term after reasonable prior notice to Tenant (except in the
event of an emergency), relocate all or a portion of the Designated Original
Licensed Premises or Licensed Premises to other areas in the Plant, provided
that such alternative areas provide reasonable access to, and parking in the
vicinity of, the Demised Premises. The Tenant shall use the Premises in
accordance with the terms and conditions set forth in this Lease and in
Section 6.5 of the Contribution Agreement. Tenant acknowledges and agrees
that the privileges granted Tenant under this Section shall merely constitute
a license and shall not be deemed to grant Tenant a leasehold or other real
property interest in the Licensed Premises. This license shall automatically
terminate and expire upon the expiration or earlier termination of this Lease
and the termination of such license shall be self-operative and no further
instrument shall be required to effect such termination.
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(iv) The Premises shall specifically exclude any and all steam
tunnels at the Plant and the emergency generator room located between
Buildings 11 and 26 housing the diesel generator which provides emergency
lighting for the east end of the Plant (collectively, the "PROHIBITED
AREAS"), irrespective of whether such Prohibited Areas or access thereto lies
within or beneath any portion of the land or improvements comprising the
Premises. Notwithstanding the foregoing, Tenant may access the Prohibited
Areas as necessary for purposes of normal routine maintenance of equipment
located in those areas; provided that all such work is performed in
accordance with applicable laws and regulations, including applicable health
and safety regulations.
(b) The Landlord hereby leases to the Tenant the items of
personal property set forth on EXHIBIT "A-2" annexed hereto and made a part
hereof (the "ORIGINAL PERSONAL PROPERTY") and the items of personal property
set forth on EXHIBIT "A-3" annexed hereto and made a part hereof (the "NEW
PERSONAL PROPERTY", the Original Personal Property and the New Personal
Property being collectively referred to herein as the "PERSONAL PROPERTY").
Section 1.2 (a) This Lease shall have an initial term of ten
(10) years (the "INITIAL TERM"), which Initial Term commenced on May 1, 1997
(the "COMMENCEMENT DATE") and shall expire on the day (the "EXPIRATION DATE")
immediately preceding the tenth (10th) anniversary of the Commencement Date,
unless the Initial Term shall be extended or sooner terminated as hereinafter
provided (the Initial Term, as the same may be extended from time to time,
the "TERM").
(b) Provided that this Lease is in full force and effect and
that the Tenant is not then in default hereunder beyond any applicable grace
periods, the Tenant shall have the right to renew this Lease for three (3)
periods of five (5) years each (each, a "RENEWAL PERIOD"), exercisable by
delivery of a written notice ("TENANT'S RENEWAL NOTICE") received by Landlord
no later than one hundred eighty (180) days prior to the expiration of the
then-current Term. Each Renewal Period shall commence on the day following
the expiration date of the Initial Term or the immediately preceding Renewal
Period, as the case may be, and shall end on the fifth (5th) anniversary of
such expiration date. Upon the exercise by the Tenant from time to time of
its right to renew as aforesaid, this Lease shall be deemed extended through
the last day of the applicable Renewal Period upon the terms and conditions
herein set forth except that the Basic Rent (as hereinafter defined) payable
during the Renewal Period shall be fixed in accordance with the provisions of
Section 2.1(a) and Section 2.1 (b) below.
(c) The Tenant shall have the right to terminate this Lease
at any time during the Term by giving the Landlord at least one hundred
eighty (180) days' prior written notice of such termination, which notice
shall specify the termination date. In the event of such termination, all
Basic Rent and Additional Rent shall be apportioned as of the termination
date set forth in Tenant's termination notice.
(d) The portions of the Plant being used by Tenant shall not
be increased without Landlord's prior written consent, which consent shall
not be unreasonably withheld. Tenant shall have the right to vacate any
portion of the Premises pursuant to the terms of this
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Lease. The parties hereto acknowledge and agree to communicate and
coordinate any contemplated increase or decrease in the portions of the Plant
included within the Premises and to promptly enter into written amendments to
this Lease to reflect any increase or decrease and reflect any necessary
reallocations of the appropriate costs.
ARTICLE 2
BASIC RENT - ADDITIONAL RENT
Section 2.1 (a) The Tenant shall pay to the Landlord during
the Initial Term an annual basic rent (the "BASIC RENT") equal to One Dollar
per annum, which Basic Rent shall be payable in advance on January 2 of each
year during the Initial Term. If the Term is extended pursuant to Section
1.2(b), the Basic Rent for the first Renewal Period shall be equal to One
Dollar per annum, which Basic Rent shall be payable in advance on January 2
of each year during the first Renewal Period.
(b) If the Term is extended from time to time for any
Renewal Period after the first Renewal Period, as provided in Section 1.2 (b)
above, the Basic Rent for such Renewal Period (the "RENEWAL RENT") shall be
determined as provided in this Section 2.1(b). Upon receipt of Tenant's
Renewal Notice, the Landlord and the Tenant shall attempt for thirty (30)
days to agree upon the Renewal Rent, which the parties agree shall be the
fair market rental value of the Demised Premises, taking into account the
Personal Property, the obligation of the Tenant to pay Taxes (hereinafter
defined) and other expenses allocated to the Demised Premises as provided
elsewhere in this Lease. Should the Landlord and the Tenant be unable to
agree on the Renewal Rent within such thirty (30) day period, the Tenant
shall, at its own cost, appoint a disinterested real estate broker licensed
in the State of Pennsylvania involved in the rental of similar space in the
area in which the Plant is located for at least five (5) years (a "QUALIFIED
BROKER") to serve as an appraiser on its behalf and shall give notice thereof
to the Landlord within sixty (60) days after the Landlord's receipt of the
Tenant's Renewal Notice. The Landlord shall, at its own cost, within thirty
(30) days after receiving said notice appoint a second Qualified Broker to
serve as appraiser on its behalf and shall give written notice thereof to the
Tenant. The Qualified Brokers shall independently, within thirty (30) days
after their appointment, render in writing to the Landlord and the Tenant
their independent appraisals of what the annual fair market rental value of
the Demised Premises would be for the applicable Renewal Period. If Landlord
and the Tenant or the two (2) Qualified Brokers cannot, within thirty (30)
days thereafter, agree on what the annual fair market rental value of the
Demised Premises would be for the applicable Renewal Period, the two (2)
Qualified Brokers theretofore appointed shall appoint a third Qualified
Broker. The third Qualified Broker shall then promptly select the amount set
forth in one or the other of the two appraisals theretofore prepared which
such Broker believes most closely approximates the annual fair market value
of the Demised Premises, and same shall be the Renewal Rent for the
applicable Renewal Period. The determination of the Qualified Broker(s)
shall conclusively be and be deemed to be the Renewal Rent and shall be
binding on Landlord and Tenant. In rendering their determination, the
Qualified Brokers shall have no power to modify or in any manner alter or
reform any of the provisions of this Lease. The cost of the third Qualified
Broker shall be shared equally by
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Landlord and Tenant. If, for any reason whatsoever, the Renewal Rent has
not been determined on or prior to the commencement of the applicable Renewal
Period, Tenant shall pay to the Landlord on account of Basic Rent (subject to
retroactive adjustment back to the beginning of the applicable Renewal
Period once the Basic Rent is determined) one hundred ten (110%) percent of
the Basic Rent payable by the Tenant immediately prior to the commencement of
the applicable Renewal Period.
Section 2.2 (a) In addition to the Basic Rent, the Tenant
shall pay and discharge, as additional rent (the "ADDITIONAL RENT"), any and
all other amounts, liabilities, charges, obligations and other payments which
the Tenant, under any of the provisions of this Lease, is now or hereafter
obligated to pay or discharge, as more particularly described in this Lease.
In the event of any failure on the part of the Tenant to pay all or any part
of the Additional Rent when due, the Landlord shall have the same rights and
remedies provided for herein or by applicable law or otherwise in the case of
the nonpayment of the Basic Rent.
(b) It is intended that the Basic Rent be net to the
Landlord and that the Tenant shall pay, as Additional Rent, all Taxes,
utilities, and other costs and expenses relating to the Demised Premises
(other than those environmental costs which Landlord shall pay pursuant to
Sections 6.3 and 6.4 of the Contribution Agreement) and an equitable portion
of such Taxes, utilities, insurance and other costs and expenses relating to
the Licensed Premises, all as reasonably determined by the Landlord and the
Tenant pursuant to the provisions of this Lease, including, without
limitation, Articles 4, 5, 6, 8 and 24 hereof, and taking into account the
total area occupied and their respective requirements based on usage. The
Landlord and the Tenant have agreed upon a preliminary allocation of certain
of these items as set forth in EXHIBIT "B" attached hereto and made a part
hereof (the "INITIAL EXPENSE ALLOCATIONS"), and as referenced below in
Section 24.4.
Section 2.3 During the term of this Lease, if the Tenant
shall fail to pay any installment of the Basic Rent or any of the Additional
Rent due or payable hereunder or in connection herewith, within 10 days after
Landlord notifies Tenant in writing that any such amount is due or payable,
in addition to all of the other rights and remedies of the Landlord
hereunder, the Tenant shall pay to the Landlord, in addition to all other
payments required to be made under this Lease, the amount not paid when due,
together with interest thereon, at a rate (the "INTEREST RATE") equal to the
lower of (i) 3% over the prime rate publicly announced from time to time by
Xxxxxx Guaranty Trust Company of New York and (ii) the highest rate permitted
by applicable law, from the due date until the date of payment. All amounts
payable to the Landlord pursuant to this Section 2.3 shall constitute
Additional Rent.
ARTICLE 3
CONDITION OF PREMISES AND PERSONAL PROPERTY; LANDLORD'S WORK
Section 3.1 Except as otherwise provided in Section 3.2
below, Tenant acknowledges that it inspected the Original Demised Premises,
the Designated Original Licensed Premises, the Licensed Premises and the
Original Personal Property prior to the Commencement
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Date and agreed to take the same "as is", where is, and with all faults, and
Landlord has no obligation to prepare the foregoing for Tenant's occupancy.
In addition, Tenant has inspected the Additional Premises and the New
Personal Property, and agrees to take the same "as is", where is, and with
all faults, including but not limited to, the conditions noted in the
engineering reports identified in Section 8.5 hereof, and Landlord shall have
no obligation to prepare the Additional Premises or the New Personal Property
for Tenant's occupancy or use.
Section 3.2 Landlord agrees to perform the following work
("LANDLORD'S WORK"):
(a) the Phase 1 Improvements (as defined in the Contribution
Agreement), to the extent the same affect or relate to the Demised Premises;
(b) the work (the "ENVIRONMENTAL WORK") described in the
Environmental Compliance Plan (as defined in the Contribution Agreement), to
the extent the same affects or relates to the Demised Premises; and
(c) the removal of furnace Xx. 0 xxxx Xxxxxxxx 00 (xxx
"XXXXXXX XXXXXXX XXXX").
Section 3.3 Landlord shall use its reasonable efforts to
complete Landlord's Work in a timely manner assuming reasonable cooperation
from Tenant (subject to Unavoidable Delays (hereinafter defined)); provided,
however that Landlord shall have no obligation to employ contractors or labor
at so-called overtime or other premium pay rates or to incur any other
overtime costs or expenses whatsoever. Landlord's Work shall be performed on
a timely basis and in such a manner so as to minimize interference with the
operation of the Business by the Tenant. Landlord shall have the right to
enter the Demised Premises subsequent to the Commencement Date to perform
Landlord's Work and the payment of Basic Rent and Additional Rent shall not
be affected thereby; provided, that in all such cases Landlord shall provide
notice to Tenant, shall coordinate all required work with Tenant and
Landlord's activities shall not unreasonably interfere with Tenant's business
operations.
Section 3.4 The cost of performing the Phase I Improvements
and the Environmental Work shall be borne by the party or parties responsible
therefor under Sections 6.3 and 6.4 of the Contribution Agreement. The cost
of performing the Furnace Removal Work shall be borne by Landlord.
Section 3.5 The Tenant shall comply with the operations and
maintenance plan for the Pits (as defined in the Contribution Agreement) as
set forth in Schedule 6.3(a) to the Contribution Agreement and for the
Personal Property.
Section 3.6 Any work performed after the date hereof and
otherwise deemed to be reasonably necessary by either party in order to
further segregate the Demised Premises from the rest of the Plant, to
segregate certain parking lots for Tenant's use from the parking lots for the
Plant, and to secure and provide for the independent use and operation of the
same, including
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without limitation, installing or causing to be installed, if possible,
separate metering devices for utilities serving the Demised Premises and the
Plant, shall, in the absence of a mutually written agreement to the contrary,
be borne by the party desiring to have the work performed.
Section 3.7 Tenant and Landlord agree to arrange for the
replacement of the sprinkler heads throughout the Plant as recommended in the
November 30, 1998, report prepared by Global Risk Consulting Corp. The cost
of performing the work shall be allocated between Tenant and Landlord based
on the location of the sprinkler heads actually replaced with Tenant being
responsible for replacements within the Demised Premises and Landlord being
responsible for replacements in areas of the Plant not included within the
Demised Premises.
Section 3.8 Except as otherwise set forth above, Landlord
shall not have any obligation hereunder to remove any machinery and equipment
owned by Landlord from areas of the Plant included within the Demised
Premises now or in the future except to the extent that such removal is
required by law or such machinery and equipment presents unreasonable health
and/or safety issues arising from or attributable to the materials contained
therein. Notwithstanding the foregoing, the parties agree that Landlord shall
have six months from the date hereof to dispose of surplus equipment owned by
Landlord currently located within the Demised Premises. Any such equipment
not removed during that period may be removed and disposed of by Tenant on an
"as is" where is basis at Tenant's sole costs and expense with Tenant
retaining any residual value realized on the sale or disposal. In the event
that Tenant and Landlord subsequently desire to include additional portions
of the Plant in the Demised Premises and notifies Landlord of its desire to
have additional equipment located within those areas removed, Landlord shall
have six months thereafter to dispose of such equipment and any such
equipment not removed during that period may be removed and disposed of by
Tenant on an "as is" where is basis at Tenant's sole costs and expense with
Tenant retaining any residual value realized on the sale or disposal.
ARTICLE 4
PAYMENT OF TAXES
Section 4.1 Subject to the provisions of Section 4.2 and
Article 24 below, Tenant shall pay (prior to the addition or imposition of
any fine, penalty, interest, cost or expense in respect of the nonpayment
thereof, if applicable), all real estate taxes, personal property taxes,
occupancy taxes, assessments, water and sewer rents and charges, vault
charges, license and permit fees and other governmental levies and charges,
of any kind or nature (collectively, "TAXES"), which are assessed, levied,
confirmed, imposed or which may become a lien upon all or any portion of the
Demised Premises, or shall become payable, during and with respect to the
Term; provided, that any Taxes relating to a fiscal period of the taxing or
imposing authority, a part of which period is included in a period of time
before the Commencement Date or after the Expiration Date, shall (whether or
not such Taxes shall be assessed, levied, confirmed, imposed or become a lien
upon the Demised Premises or the Personal Property, or shall become payable,
during the Term) be adjusted between the Landlord and the Tenant as of the
Commencement Date or as of the Expiration Date, as applicable. The Tenant,
on or before the date any installment of Taxes shall become delinquent, shall
furnish the Landlord with evidence of
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payment of such Taxes, in form reasonably satisfactory to the Landlord.
Tenant shall be responsible for any fine, penalty, interest, cost or expense
imposed upon the Demised Premises in respect of the nonpayment or late
payment of Taxes.
Section 4.2 In the event that any Taxes are billed pursuant
to a tax or other billing scheme that incorporates property owned by the
Landlord other than the Demised Premises and the Personal Property, then,
notwithstanding the other provisions of this Article 4, all such Taxes
respecting the Demised Premises and/or the Personal Property shall be paid by
the Landlord, and the Landlord shall thereafter xxxx the Tenant for the
Tenant's pro rata share of such Taxes as shall be reasonably determined by
the Landlord and the Tenant. In addition to the payment of Taxes
attributable to the Demised Premises and the Personal Property, the Tenant
shall pay a pro rata share of Taxes attributable to the Licensed Premises.
The determination of Tenant's pro rata share of Taxes shall be made by the
Landlord and the Tenant in accordance with Article 24 below and as set forth
on EXHIBIT "B" attached hereto. All amounts payable by the Tenant under this
Section 4.2 shall be treated as Additional Rent hereunder and shall be due
and payable thirty (30) days after delivery of such xxxx to the Tenant and
otherwise in accordance with the terms of this Lease.
Section 4.3 Nothing in this Lease shall require the Tenant to
pay any franchise, corporate, estate, inheritance, succession, capital levy,
income, profits, revenue or transfer tax imposed upon the Landlord, nor shall
any tax, assessment, charge or levy of the character above in this Section
4.3 be deemed to constitute Taxes, except if such taxes are customarily
payable by the Tenant in substitution of any item of Taxes.
ARTICLE 5
INSURANCE
Section 5.1 At all times during the term of this Lease the
Tenant shall maintain workers' compensation insurance in the amount required
by applicable law and employer's liability insurance to a limit of not less
than $1,000,000; and keep the Demised Premises and the Personal Property
insured against:
(1) loss or damage by fire, and such other risks as may be
included in the standard form of extended coverage insurance policy in an
amount not less than 100% of the replacement value of the Demised Premises
and the Personal Property (as reasonably determined by Landlord and
communicated to Tenant on an annual basis or as otherwise necessary to
reflect changes in the Demised Premises and/or Personal Property), with
reasonable deductibles not exceeding $100,000; and further provided that the
amount of such insurance is at all times sufficiently large and the amount of
such deductibles are sufficiently small, to prevent the Landlord from
becoming a co-insurer within the terms of the applicable policies;
(2) loss or damage by explosion of high pressure steam
boilers, air conditioning equipment, pressure vessels, motors or similar
apparatus, now or hereafter installed in the Demised Premises, in an amount
of not less than 100% of the replacement value of the Demised
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Premises and the Personal Property (as reasonably determined by Landlord and
communicated to Tenant on an annual basis or as otherwise necessary to
reflect changes in the Demised Premises and/or Personal Property); and
(3) such other insurance and increased policy limits with
respect to the Demised Premises or the Personal Property as may be reasonably
required from time to time by the Landlord.
Section 5.2 The Tenant shall also maintain a policy of
Commercial General Liability Insurance naming the Tenant as insured and the
Landlord as additional insured against claims by third parties arising from
the Tenant's use and occupancy of the Premises and the Personal Property.
Such insurance shall provide amounts of insurance of not less than $5,000,000
per occurrence for bodily injury including death and for property damage.
Section 5.3 All insurance provided to be maintained under
this Lease shall be effected under valid enforceable policies issued by
insurers of recognized responsibility, having a Best's rating of not less
than A/VIII. Upon the execution of this Lease, certificates thereof shall be
delivered to the Landlord and, if requested by the Landlord, certificates of
such insurance shall be delivered to the holder of any Fee Mortgage (as
hereinafter defined). Not later than fifteen (15) days after the expiration
date of any policy, the original renewal policy for such insurance or
certificate thereof shall be delivered to the Landlord. All such policies
shall contain agreements by the insurers that such policies shall not be
canceled except upon at least 30 days' prior written notice to each named
insured, additional insured and loss payee and the coverage afforded thereby
shall not be affected by the performance of any work by the Tenant, or its
agents or contractors on its behalf in or about the Premises. All insurance
shall provide that Tenant's insurance is primary and that any other insurance
which Landlord may have shall be excess of and not contributory.
Section 5.4 All policies of insurance required under Section
5.1 above shall name the Landlord as an additional insured and the holder of
any Fee Mortgage as loss payee with respect to the Demised Premises and the
Improvements (hereinafter defined), as their respective interests may appear,
pursuant to a standard mortgagee clause or endorsement. For purposes of this
Lease, the term "IMPROVEMENTS" shall mean alterations, installations,
improvements, additions or other physical changes in or about the Demised
Premises.
Section 5.5 Tenant shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Demised
Premises, Personal Property and fixtures and equipment located thereon or
therein, pursuant to which the insurance companies waive subrogation or
consent to a waiver of right of recovery and having obtained such clauses or
endorsements of waiver of subrogation or consent to a waiver of right of
recovery, will not make any claim against or seek to recover from the other
for any loss or damage to its property or the property or others resulting
from fire or other hazards covered by such fire and extended coverage
insurance, provided, however, that release, discharge, exoneration and
covenant not to xxx herein contained shall be limited by and be in
coexistence with the terms and provisions of the waiver of subrogation clause
or endorsements or clauses or endorsements consenting to a
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waiver of right to recovery. If the payment of an additional premium is
required for the inclusion of such waiver of subrogation provision, Tenant
shall advise Landlord of the amount of any such additional premiums and
Landlord at its own election may, but shall not be obligated to, pay the
same. If Landlord shall not elect to pay such additional premium, Tenant
shall not be required to obtain such waiver of subrogation provision. If
Tenant shall be unable to obtain the inclusion of such clause even with the
payment of an additional premium, then Tenant shall attempt to name Landlord
as an additional insured (but not a loss payee) under the policy. If the
payment of an additional premium is required for naming Landlord as an
additional insured (but not a loss payee), Tenant shall advise Landlord of
the amount of any such additional premium and Landlord at its own election
may, but shall not be obligated to, pay the same. If Landlord shall not
elect to pay such additional premium or if it shall not be possible to have
Landlord named as an additional insured (but not loss payee), even with the
payment of an aditional premium, then (in either event) Tenant shall so
notify Landlord and Tenant shall not have the obligation to name Landlord as
an additional insured. Tenant acknowledges that Landlord shall not carry
insurance on and shall not be responsible for damage to any alterations
performed by Tenant or Tenant's personal property, and that Landlord shall
not carry insurance against, or be responsible for any loss suffered by
Tenant due to, interruption of Tenant's business.
ARTICLE 6
UTILITIES AND OTHER PROPERTY-RELATED SERVICES
Section 6.1 The Tenant shall, prior to delinquency, pay or
cause to be paid all charges for heat, cooling, air, steam, water, sewer,
gas, electricity, light, telephone, or any other utility service rendered or
supplied to the Demised Premises throughout the Term (if and to the extent
the same are billed directly to the Tenant), and shall indemnify the Landlord
and hold the Landlord harmless against any liability or damages on such
account.
Section 6.2 In the event any utilities or other services
payable pursuant to this Article 6 are billed pursuant to a billing scheme
that incorporates property other than the Demised Premises, then,
notwithstanding the other provisions of this Article 6, such utilities or
other property-related services respecting the Demised Premises shall be paid
by Tenant, and the Tenant shall thereafter xxxx the Landlord for the
Landlord's proportionate share of such utilities or other property-related
services, as reasonably determined by the parties taking into account the
total area occupied and their respective requirements based on usage. In
addition to the payment of utilities and services attributable to the Demised
Premises, the Tenant shall pay a pro rata share of utilities and services
attributable to the Licensed Premises. The determination of Tenant's
proportionate share of utilities and services shall be made by the Landlord
and the Tenant in accordance with Article 24 below and EXHIBIT "B" attached
hereto taking into account the total area occupied and their respective
requirements based on usage. Any amounts payable by the Tenant under this
Section 6.2 shall be treated as Additional Rent hereunder and shall be due
and payable on the thirtieth (30th) day following delivery of any such xxxx
to the Tenant.
Section 6.3 The Landlord and the Tenant shall cooperate with
each other to the extent reasonably necessary to enable the Tenant to obtain
utility and other services at the
11
Demised Premises, which may include sharing such utilities and services;
provided, however, that the Landlord shall not be required to furnish any
services or facilities to the Demised Premises, nor shall the Landlord be
responsible for any interruption of services to the Demised Premises unless
caused by the gross negligence or wilful misconduct of the Landlord or its
agents, servants or employees.
ARTICLE 7
CHANGES AND ALTERATIONS - SURRENDER OF
DEMISED PREMISES AND PERSONAL PROPERTY
Section 7.1 The Tenant shall not make any alterations,
decorations, installations, additions, improvements, repairs, replacements or
removals (collectively, "ALTERATIONS") to the Demised Premises, to any of the
Improvements or any part thereof or any equipment or appurtenance thereto,
unless the Tenant shall comply with the following requirements:
(a) Any Alteration shall be made promptly in a first
class, workerlike manner, in compliance with all applicable legal
requirements ("REQUIREMENTS");
(b) No Alteration shall be made which would substantially
change the general character or use of the Demised Premises, any of the
Improvements or any part thereof or any equipment or appurtenance
thereto;
(c) Such Alteration shall be effected under the
supervision of the registered or licensed architect reasonably
satisfactory to the Landlord (the "ARCHITECT");
(d) Prior to the commencement of any proposed structural
Alteration, the Tenant shall furnish the Landlord complete plans and
specifications for the proposed Alteration prepared by the Architect,
which plans and specifications shall meet with the approval of the
Landlord, which, except with respect to Alterations to the roof, the
foundations or the exterior walls of any of the buildings comprising the
Demised Premises, shall not be unreasonably withheld, together with the
approval thereof by any governmental board, bureau or department then
exercising jurisdiction, which plans and specifications shall be and
become the property of the Landlord in the event that for any reason this
Lease shall be terminated or shall expire;
(e) If, as a result of any Alterations performed by or on
behalf of Tenant, any alterations, installations, improvements additions
or other physical changes are required to be performed or made to any
portion of the Plant other than the Demised Premises in order to comply
with any Requirement(s), Landlord, at Tenant's sole cost and expense, may
perform or make such alterations, installations, improvements, additions
or other physical changes and take such actions as Landlord shall deem
reasonably necessary;
12
(f) If, as a result of any Alteration by or on behalf of
the Tenant, any asbestos containing material ("ACM") is required to be
removed and disposed of, Tenant shall pay for all such removal and
disposal costs, including air monitoring and health and safety costs
associated with such removal, and shall remove and dispose of, or cause
to be removed and disposed of, such ACM in accordance with all applicable
Environmental Laws;
(g) The Demised Premises and the Personal Property shall
at all time be free of liens for labor and materials supplied or claimed
to have been supplied in connection with any Alteration and, if any
mechanic's lien is filed against the Premises, the Plant or the Land
(hereinafter defined) for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant, such lien shall be
discharged by Tenant within thirty (30) days after Tenant shall have
received notice thereof, at Tenant's expense, by payment or filing the
bond required by law or otherwise;
(h) The Tenant shall prosecute and complete, or cause to
be prosecuted and completed, any Alteration in compliance with the
approved plans and specifications and with all applicable laws and
regulations and all insurance policies and all orders and requirements of
any insurance underwriting or other similar body covering or applicable
to the Demised Premises. No Alteration shall be undertaken until the
Tenant shall have procured and paid for, so far as they may be required,
from time to time, all municipal and other governmental permits and
authorizations of the various municipal departments and governmental
subdivisions having jurisdiction over the Demised Premises or the
business or activities conducted thereon, and the Landlord agrees, at the
sole cost and expense of the Tenant, to join in the application for such
permits or authorizations whenever such action is necessary (so long as
such joining does not impose any personal liability upon the Landlord in
respect of any such Alteration). No plans and/or specifications required
to be filed by the Tenant with any governmental authority shall be filed
or submitted unless such plans and/or specifications are based upon and
consistent with the plans and specifications approved by the Landlord.
The Landlord's approval of any plans and specifications may be withdrawn
if the Tenant fails to obtain any required governmental approval or if
the Tenant otherwise fails to fulfill any obligation contained in this
Article 7;
(i) At all times when an Alteration is in process, the
Tenant, at the Tenant's sole cost and expense, shall obtain and keep in
full force and effect, or cause to be obtained and kept in full force and
effect: (1) workers' compensation insurance covering all persons employed
in connection with such Alteration and with respect to death or personal
injury or bodily injury claims which could be asserted against the
Landlord, the Tenant or the Demised Premises; (2) general liability and
property damage insurance (which insurance may be effected by
endorsement, if obtainable, on the insurance required to be carried
pursuant to this Lease and shall contain a completed operations
endorsement); and (3) builder's risk insurance, completed value form,
covering all physical loss, in an amount reasonably satisfactory to the
Landlord. The Landlord and the holder of any Fee Mortgage or other party
which the Landlord may
13
designate shall be named in all such insurance. The Tenant shall deliver
to the Landlord policies or certificates evidencing such insurance, and
evidence of the payment of the premiums therefor, prior to the
commencement of any Alteration. Such insurance shall be in addition
to the insurance provided for in Article 5 and shall otherwise be subject
to the provisions of Article 5;
(j) Promptly following the completion of any structural
Alteration, the Tenant shall deliver to the Landlord two complete sets of
"as-built" plans and specifications therefor, certified to by the
Architect as being accurate and complete; and
(k) Upon completion of any Alteration, the Tenant shall
obtain and deliver to the Landlord originals of all certificates of
occupancy (or equivalents), if any, or amendments thereof and of all
certificates from governmental authorities, the Board of Fire
Underwriters and such other certificates as are required or customarily
obtained from any bureau or department having jurisdiction.
Section 7.2 On the Expiration Date, the Tenant shall
surrender and deliver, broom clean, to the possession and use of the
Landlord, in substantially similar order, condition and repair as upon the
Commencement Date with respect to the Original Demised Premises and the
Original Personal Property, and with respect to the Designated Original
Licensed Premises, the Additional Premises and the New Personal Property as
upon the date Tenant first occupied or began use of the same, in each
instance reasonable wear and tear and casualty for which the Tenant is not
responsible for hereunder excepted, and free and clear of all tenancies and
occupancies and free and clear of all liens and encumbrances hereafter
affecting the Demised Premises or the Personal Property. All equipment,
furniture and furnishings installed in, or placed upon, the Demised Premises
by, or on behalf of, Tenant which Tenant, at Tenant's option, did not remove
on or prior to the Expiration Date shall become the property of the Landlord.
Tenant may not remove any fixtures or Alterations without the prior written
consent of the Landlord, except to replace them with items of greater or
equal value. Tenant shall restore and repair, in a good and workerlike
manner, to good condition any damage to the Premises or the Plant caused by
such removal.
Section 7.3 The provisions of this Article 7 shall survive
the expiration or earlier termination of this Lease.
ARTICLE 8
REPAIRS AND MAINTENANCE
Section 8.1 The Tenant, at its sole cost and expense, shall
take good care of and maintain the Premises and the Personal Property,
including following the maintenance schedules and procedures identified on
Schedule 8.1 hereto and Schedule 6.3(a) to the Contribution Agreement and
such other maintenance schedules and procedures as shall be mutually agreed
upon by the parties hereto, and shall keep the Premises and the Personal
Property in good order, condition and repair throughout the Term and shall,
in a good and
14
workerlike manner, make all repairs therein and thereon, interior and
exterior, structural and non-structural, necessary to keep the same in good
order and condition, whether or not necessitated by obsolescence or wear and
tear.
Section 8.2 The Tenant shall also be responsible for making
all structural repairs and replacements relating to the roof, the foundations
or the exterior walls of any of the buildings comprising the Demised
Premises; provided, however that Landlord shall be responsible for making all
structural repairs and replacements relating to the roof, the foundations or
the exterior walls of any of the buildings comprising the Original Demised
Premises and Designated Original Licensed Premises other than (a) those
structural repairs made in connection with routine and ordinary maintenance
of the Original Demised Premises and Designated Original Licensed Premises,
and (b) those repairs made in connection with damage or injury caused by or
resulting from Tenant's Alterations, or from carelessness, omission, neglect
or improper conduct of Tenant, Tenant's agents, employees, invitees or
licensees. Notwithstanding the foregoing, Landlord shall not have any
obligation under the preceding sentence unless and until such time as the
reasonably incurred costs and expenses incurred by Tenant for such repairs as
would otherwise be Landlord's responsibility under the preceding sentence
exceed Seven Hundred Fifty Thousand Dollars ($750,000) (the "BASKET") and
Tenant has presented invoices and other documentation reasonably requested by
Landlord in connection with the same. Landlord shall not have any obligation
to reimburse Tenant for any costs and expenses included within the Basket.
Tenant shall give Landlord prompt notice of any defective condition and the
party responsible for such repair hereunder shall make all such repairs as
soon as practicable.
Section 8.3 The Tenant shall, at the Tenant's cost and
expense, cause to be kept clean and free from dirt, snow, ice, rubbish,
obstructions and encumbrances, the sidewalks, passageways, grounds, parking
areas, walks, alleys and curbs within the Plant and the Landlord shall pay to
Tenant, a pro rata share of the cost thereof taking into account the total
area occupied and their respective requirements based on usage, as reasonably
determined by the Landlord and the Tenant in accordance with Article 24
hereof and EXHIBIT "B" attached hereto.
Section 8.4 The Tenant shall be responsible for repairing and
maintaining the Personal Property in accordance with the Landlord's
specifications as provided to the Tenant from time to time.
Section 8.5 Tenant agrees to perform the work necessary in a
manner determined by Tenant, but in accordance with the terms of Article 7,
to address the conditions noted within the Premises in (i) the Engineering
Report of Roof and Wall System for Xxxxxxxx/Xxxxxx Xxxxxxxx #00 dated March
12, 1999, prepared by Xxxxxxx and Associates, Inc. and (ii) the Engineering
Report of Erie Facility Buildings for Accuride Corporation dated March 12,
1999, prepared by Xxxxxxx and Associates, Inc. Such work shall be performed
on a timely basis as reasonably determined by Tenant in accordance with the
terms of this Lease and, except as otherwise set forth herein, Tenant shall
bear all costs and expenses associated with such work. Reasonable costs and
expenses incurred by Tenant to make any structural repairs and replacements
to address conditions noted in such reports relating to the roof, the
foundations or
15
the exterior walls of any of the buildings comprising the Original Demised
Premises and Designated Original Licensed Premises other than (a) those
structural repairs made in connection with routine and ordinary maintenance
of the Original Demised Premises and Designated Original Licensed Premises,
and (b) those repairs made in connection with damage or injury caused by or
resulting from Tenant's Alterations, or from carelessness, omission, neglect
or improper conduct of Tenant, Tenant's agents, employees, invitees or
licensees, shall, subject to the terms set forth above, be included within
the Basket.
Section 8.6 Notwithstanding any provision contained herein to
the contrary, Landlord shall not have any obligations to make any repairs to
any portion of the Plant not included within the Premises except those
repairs reasonably necessary to prevent unreasonable interference with
Tenant's operations.
ARTICLE 9
COMPLIANCE WITH ORDERS, ORDINANCES, ETC.
Section 9.1 Except as otherwise expressly set forth in
Section 6.3 of the Contribution Agreement, during the Term, the Tenant shall
comply, at its sole cost and expense, with all applicable laws and
regulations, and with all requirements of all insurance policies and insurers
under the policies required hereunder which may be applicable to the Demised
Premises or the Personal Property, irrespective of the nature of the work
required to be performed and irrespective of whether or not such work shall
be required on account of any particular manner of use relating to or
affecting the Demised Premises or the Personal Property.
Section 9.2 Notwithstanding the foregoing, except as
otherwise set forth in any other agreements between the parties, Landlord
hereby releases Tenant from any liability for compliance with all applicable
laws and regulations and with all Insurance Requirements existing on the
Commencement Date with respect to the Original Demised Premises and the
Original Personal Property and, with respect to the Additional Premises, the
Designated Original Licensed Premises and the New Personal Property, the date
upon which Tenant first occupied or assumed exclusive use of the same
("PRE-EXISTING LAWS"); provided, however, that Tenant shall comply with those
Pre-Existing Laws applicable to the making of any Alteration by Tenant or the
result of the making thereof. From and after the dates set forth above,
Tenant shall be liable for compliance with new or revised laws, regulations
and Insurance Requirements to the extent set forth above.
ARTICLE 10
MECHANIC'S LIENS
Section 10.1 The Tenant shall not suffer or permit any
mechanics' liens to be filed against the Demised Premises by reason of work,
labor, services or materials supplied or claimed to have been supplied to the
Tenant. If any such mechanics' lien shall at any time be filed against the
Demised Premises, the Tenant shall, within 30 days of the filing thereof,
cause
16
such lien to be discharged of record by payment, deposit, bond, order of a
court of competent jurisdiction or otherwise.
ARTICLE 11
INSPECTION OF PREMISES BY THE LANDLORD
Section 11.1 The Landlord and its authorized representatives
shall have the right to enter the Demised Premises at all reasonable times,
on reasonable prior notice, for the purpose of (a) inspecting or surveying
the Demised Premises and the Personal Property, (b) making any necessary
repairs or repairs required or permitted hereby to the Demised Premises and
the Personal Property, (c) gaining access to, and entering, the Prohibited
Areas, (d) performing any other act permitted under this Lease, (e)
surveying, investigating and remediating any environmental conditions that
may exist, and (f) arranging for the sale or removal of surplus equipment.
Notwithstanding the foregoing, Landlord shall use its reasonable best efforts
to coordinate all required work with Tenant, and Landlord's activities shall
not unreasonably interfere with Tenant's business or operations.
ARTICLE 12
RIGHT TO PERFORM COVENANTS OF THE TENANT
Section 12.1 If the Tenant shall at any time fail to make any
payment or perform any other act on its part to be made or performed under
this Lease, or diligently proceed to perform any such act, the Landlord,
after not less than fifteen (15) days' notice to the Tenant (except in case
of emergency, in which event no notice need be given), may, but shall not be
obligated to, make such payment or perform such other act. All amounts so
paid by the Landlord in connection therewith shall constitute Additional Rent
hereunder and shall be payable to the Landlord on the first day of the next
succeeding month, together with interest thereon at the Interest Rate from
the date the Landlord incurred such amount until the date of payment by the
Tenant.
ARTICLE 13
DAMAGE OR DESTRUCTION
Section 13.1 If the Demised Premises or the Personal Property
or any part thereof are damaged or destroyed in whole or in part by any
casualty, the Tenant shall give the Landlord immediate notice thereof, and
the Tenant shall, at its own cost and expense, whether or not such damage or
destruction shall have been insured and whether or not insurance proceeds, if
any, shall be sufficient for such purpose, promptly repair, alter, restore,
replace and rebuild the Demised Premises or the Personal Property (each, a
"RESTORATION") at least to the extent of the value and as nearly as
practicable, to the character, quality, scope and size of the Demised
Premises or the Personal Property existing immediately prior to such
occurrence subject to and in accordance with the terms and provisions of
Section 7.1 hereof. Landlord shall in no event be
17
called upon to do or perform any Restoration, nor to pay for any of the costs
or expenses thereof. Notwithstanding the provisions of the preceding
sentence, if the Demised Premises are damaged and destroyed to the extent
that they cannot reasonably be used for the conduct of the Business, and if
the reasonably estimated time to complete the Restoration exceeds 180 days,
the Tenant may terminate this Lease by notice to Landlord not later than
thirty (30) days after such damage or destruction, provided that such
termination shall only be effective if the Tenant pays or causes to be paid
to the Landlord an amount equal to the greater of: (a) the amount of
insurance proceeds received by the Tenant; or (b) the reasonably estimated
cost of restoring the Demised Premises at least to the extent of the value
and, as nearly as practicable, to the character, quality, scope and size the
Demised Premises or the Personal Property existing immediately prior to such
occurrence.
Section 13.2 Unless this Lease is canceled by the Tenant as
provided above, this Lease shall not be affected in any manner by reason of
total or partial damage or destruction of the Premises or any part thereof or
by reason of the untenantability of the Demised Premises or any part thereof,
for any reason, and the Tenant, notwithstanding any law or statute present or
future, waives any and all rights to quit or surrender the Demised Premises
or any part thereof. The Tenant's obligations hereunder shall continue as
though none of such events had occurred and without abatement, suspension,
diminution or reduction of any kind. The foregoing notwithstanding, if the
Demised Premises shall be damaged by fire or other casualty during any
Renewal Period, and if Tenant shall give prompt notice thereof to Landlord,
the Basic Rent and any Additional Rent shall be reduced in the proportion by
which the area of the part of the Premises which is not usable by Tenant, as
reasonably determined by Landlord, bears to the total area of the Premises
immediately prior to such casualty until such repairs which are required to
be performed by Tenant (excluding Long Lead Work (as defined below)) shall be
substantially completed. The Restoration shall be performed in a workerlike,
diligent manner and Tenant shall use its best efforts to complete the
Restoration as expeditiously as possible. If Tenant shall fail to perform
the Restoration in a diligent and expeditious manner, then the Basic Rent and
Additional Rent shall recommence on the date that the Restoration would have
been completed but for the Tenant's failure. For purposes of this Lease, the
term "LONG LEAD WORK" shall mean any item which is not a stock item and must
be specially manufactured, fabricated or installed or is of such an unusual,
delicate or fragile nature that there is a substantial risk that
(i) there will be a delay in its manufacture, fabrication,
delivery or installation, or
(ii) after delivery, such item will need to be reshipped or
redelivered or repaired
so that in Landlord's reasonable judgement the item in question cannot be
completed when the standard items are completed even though the item of Long
Lead Work in question is (1) ordered together with the other items required
and (2) installed or performed (after the manufacture or fabrication thereof)
in order and sequence that such Long Lead Work and other items are normally
installed or performed in accordance with good construction practice. In
addition, "Long Lead Work" shall include any standard item which in
accordance with good construction
18
practice should be completed after the completion of any item of work in the
nature of the items described in the immediately preceding sentence.
ARTICLE 14
CONDEMNATION
Section 14.1 If the Demised Premises, or any part thereof,
shall be taken in condemnation proceedings, or by exercise of any right of
eminent domain or action of condemnation, or by deed in lieu of condemnation
(any such taking or conveyance, a "TAKING"), the Tenant shall be entitled to
just compensation from any condemnor in accordance with the Pennsylvania
Eminent Domain Code (the "CODE") for the value of the Tenant's leasehold
estate, with all fixtures and improvements, together with dislocation damages
and other benefits available to tenants from condemnors under Article VI.A of
the Code, including, without limitation, actual damages with reference to
personal property and moving expenses. The Landlord shall be entitled to
just compensation in accordance with the provisions of the Code to the value
of the leased fee, i.e., the present value of the rental stream, together
with the present value of the Landlord's remainder interest in the Demised
Premises. The Tenant and the holder of any fee mortgage in cooperation with
the Landlord shall have the right to participate in any condemnation or
eminent domain proceedings and be represented by counsel for the purpose of
protecting their respective interests.
Section 14.2 (a) If at any time during the Term (i) a
Taking of all or substantially all of the Demised Premises shall occur, or
(ii) a Taking of less than substantially all of the Demised Premises shall
occur which, nevertheless, in the Tenant's reasonable judgment, materially
impairs the value or utility to the Tenant of the Demised Premises or access
thereto, such Taking shall be deemed to have caused this Lease to terminate
on the date of the Taking. In such event, the Basic Rent and all Additional
Rent required to be paid by the Tenant shall be paid up to the date of the
Taking and the Tenant shall, in all other respects, keep, observe or perform
all of the terms, covenants, agreements, provisions, conditions and
limitations of this Lease on the Tenant's part to be kept, observed or
performed, to the date of the Taking.
(b) Notwithstanding anything to the contrary
contained herein, if by reason of the Taking the value or utility of the
Demised Premises is impaired only by reason of a loss of access or parking in
the vicinity of the Demised Premises, then the Landlord shall use reasonable
efforts to provide reasonable alternative means of access or parking, as
applicable, for the Demised Premises; provided, however, if there are no
reasonable alternative means of access or parking, as applicable, available,
then the provisions of Section 14.2(a) shall apply.
Section 14.3 If there is a partial Taking pursuant to which
this Lease is not terminated, Tenant shall proceed, with reasonable
diligence, to perform any necessary repairs, restorations, alterations or
replacements to the Demised Premises, to the extent there are proceeds of
such Taking available. The proceeds of such Taking shall be made available to
Tenant for the
19
purpose of undertaking such work, and any of such proceeds remaining after
completion of such work shall be distributed in accordance with the
provisions of the Code.
ARTICLE 15
DEFAULTS AND REMEDIES; EVENTS OF TERMINATION
Section 15.1 The occurrence of any one or more of the
following events shall constitute an "Event of Default" under this Lease by
the Tenant:
(a) The "abandonment" of the Demised Premises by the
Tenant (for purposes of this Section 15.1(a), the term "abandonment"
shall mean that Tenant shall (i) have vacated the Demised Premises with
no intention to return; and (ii) not be maintaining the Premises in
accordance with good business practice).
(b) The failure by the Tenant to make any payment of Basic
Rent, Additional Rent or any other payment required to be made by the
Tenant under this Lease within ten (10) days after receiving written
notice from Landlord that any such amount is due and payable.
(c) The failure by the Tenant to observe or perform any of
the covenants, conditions or provisions of this Lease to be observed or
performed by the Tenant, other than described in Section 15.1(b) above,
where such failure shall continue for a period of thirty (30) days after
notice thereof by the Landlord to the Tenant; provided, that if the
nature of the Tenant's default is such that more than thirty (30) days
are reasonably required for its cure, then there shall not occur an Event
of Default hereunder if the Tenant commences such cure within such thirty
(30) day period and thereafter diligently prosecutes such cure to
completion.
(d)(i) The making by the Tenant of any general assignment
or general arrangement for the benefit of creditors; (ii) the filing by
or against the Tenant of a petition to have the Tenant adjudged a
bankrupt or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against
the Tenant, such petition is stayed or dismissed within 60 days); (iii)
the appointment of a trustee or receiver to take possession of
substantially all of the Tenant's assets located at the Demised Premises
or of the Tenant's interest in this Lease, where possession is not
restored to the Tenant within sixty (60) days; or (iv) the attachment,
execution or other judicial seizure of substantially all of the Tenant's
assets located at the Demised Premises or of the Tenant's interest in
this Lease, where such seizure is not discharged within sixty (60) days.
Section 15.2 (a) In the event of any Event of Default, the
Landlord shall have the right, at the Landlord's option, to elect to
terminate the Tenant's right to possession of the Demised Premises and the
Personal Property and the Landlord may re-enter, take possession of
20
the Demised Premises and Personal Property and remove any persons or property
by legal action.
(b) The foregoing remedies shall not be exclusive but
shall be in addition to all other remedies and rights provided under
applicable law, including without limitation, the right to all compensatory
and consequential damages suffered by the Landlord, and election to pursue
one remedy shall not preclude resort to another concurrent remedy.
(c) No action of the Landlord, other than express
written notice of termination pursuant to the provisions of this Lease, shall
terminate this Lease.
Section 15.3 The Tenant hereby waives the service of notice of
intention to re-enter the Demised Premises or to institute legal proceedings
with respect to such re-entry. The Tenant hereby further waives any and all
rights of redemption granted by or under any present or future applicable
laws in the event of the Tenant being evicted or dispossessed for any cause,
or in the event of the Landlord obtaining possession of the Demised Premises
and the Personal Property, by reason of the violation by the Tenant of any of
the covenants and conditions of this Lease or otherwise.
ARTICLE 16
CUMULATIVE REMEDIES - NO WAIVER
Section 16.1 Subject to the limitations contained in Section
27.1 below, the specific remedies to which the Landlord or the Tenant may
resort under the terms of this Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which they may be
lawfully entitled in case of any breach or threatened breach by either of
them of any provision of this Lease. The failure of either party hereunder
to insist in any one or more cases upon the strict performance of any of the
covenants of this Lease, or to exercise any option contained herein, shall
not be construed as a waiver or relinquishment for the future of such
covenant or option. The receipt by the Landlord of Basic Rent or Additional
Rent with knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach and no provision of this Lease shall be deemed
to have been waived by the Landlord unless such waiver is in writing and
executed by the Landlord. No act or thing done by the Landlord or the
Landlord's agents during the Term shall be deemed an acceptance of a
surrender of the Demised Premises and no agreement to accept such surrender
shall be valid unless in writing executed by the Landlord. In addition to the
other remedies in this Lease, the Landlord and the Tenant shall be entitled
to restraint by injunction of the violation, or attempted or threatened
violation, of any of the covenants, conditions or provisions of this Lease or
to a decree compelling performance of any of such covenants, conditions or
provisions.
21
ARTICLE 17
SUBORDINATION; FEE MORTGAGES
Section 17.1 Provided that the holder of any mortgages or
deeds of trust (each, a "FEE MORTGAGE") covering the Landlord's fee interest
in the Demised Premises, the Licensed Premises or any portion thereof shall
execute and deliver to Tenant a non-disturbance and attornment agreement in
form and substance reasonably satisfactory to the Tenant, this Lease shall be
subject and subordinate at all times to the lien of such Fee Mortgage (other
than the mortgage set forth in Item 2 of Schedule 3.4(b) to the Contribution
Agreement which shall be subordinate to the Lease pursuant to a subordination
agreement to be entered into by Landlord and the mortgagor). The Tenant will
execute and deliver such further instrument or instruments subordinating this
Lease to the lien of any such Fee Mortgage as shall be desired by the holder
thereof. Tenant shall not do anything that would constitute a default under
any Fee Mortgage of which Tenant has prior notice, or omit to do anything
that Tenant is obligated to do under the terms of this Lease so as to cause
Landlord to be in default thereunder. If, in connection with a financing
secured in part by the land on which the Plant stands (the "LAND"), the
Plant, or any buildings of the Plant, any lending institution shall request
reasonable modifications of this Lease, Tenant shall not unreasonably
withhold or delay its consent to such modifications.
Section 17.2 On or prior to the Commencement Date and the date
hereof, as applicable, Landlord shall obtain all necessary consents to the
Lease.
ARTICLE 18
QUIET ENJOYMENT
Section 18.1 So long as the Tenant shall not be in default of
its obligations under this Lease beyond any applicable grace periods, the
Tenant shall and may peaceably and quietly hold, occupy and enjoy the Demised
Premises, and, on a non-exclusive basis, the Licensed Premises, during the
Term, subject to the terms, conditions and provisions of this Lease.
ARTICLE 19
NOTICES
Section 19.1 All notices, demands and requests which may or
are required to be given by either party to the other shall be in writing.
All notices, demands and requests by the Landlord to the Tenant shall be
deemed to have been properly given if served in person by service by a
national overnight courier such as Federal Express, or if sent by United
States registered or certified mail, return receipt requested, postage
prepaid, addressed to the Tenant at its address set forth above, Attention:
Xxxxxxx Xxxxxxxx, with a copy to Accuride Corporation, 0000 Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel, or at such other place
as the Tenant may from time to time designate in a written notice to the
Landlord. A copy
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of each such notice, demand or request shall be sent to Xxxxxx Aluminum &
Chemical Corporation, 00000 Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000. All notices, demands and requests by the Tenant to the
Landlord shall be deemed to have been properly given if served in person by
service by a national overnight courier such as Federal Express, or sent by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed to the Landlord at the address first above written,
Attention: President, Engineered Components, or at such other place as the
Landlord may from time to time designate in a written notice to the Tenant.
A copy of each such notice, demand or request shall be sent to Xxxxxx
Aluminum & Chemical Corporation, 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx
00000, Attention: General Counsel.
ARTICLE 20
CERTIFICATES
Section 20.1 Each party hereto shall, at any time and from
time to time upon not less than 10 days' prior notice by the other party,
execute, acknowledge and deliver to such other party a statement in writing
certifying, if true, that this Lease is unmodified and in full force and
effect (or if there have been modifications that the Lease is in full force
and effect as modified and stating the modifications) and the dates to which
the Basic Rent and other charges have been paid in advance, and stating
whether or not, to the best knowledge of the signer of such statement, the
other party is in default in keeping, observing or performing any term,
covenant, agreement, provision, condition or limitation contained in this
Lease and, if so, specifying each such default.
ARTICLE 21
USE
Section 21.1 The Tenant shall use the Premises and the
Personal Property solely for the production of Joint Venture Products (as
defined in the Contribution Agreement) in connection with the conduct of the
Business and for no other purpose. The provisions of this Section 21.1 shall
not prohibit any new uses which become part of the Business, provided that
the same: (a) are of the same nature as the current uses of the Demised
Premises and the Personal Property; (b) are permitted under the certificate
of occupancy (or the certificate of occupancy is amended to permit such use);
and (c) are approved by the Landlord, such approval not to be unreasonably
withheld or delayed. Tenant shall not use, treat, or dispose of any
Hazardous Substances (as defined in the Contribution Agreement) in connection
with the use of the Premises for the production of Joint Venture Products
without first obtaining the prior consent of the Landlord, which consent
shall not be unreasonably withheld or delayed.
Section 21.2 Pursuant to the Contribution Agreement, the
Landlord may have transferred to, or made available for use by, the Tenant,
certain Governmental Authorizations (as defined in the Contribution
Agreement) required for the use and occupancy of, and conduct of the Business
at, the Demised Premises. The Tenant shall obtain (to the extent not
transferred or
23
made available to the Tenant as provided above) and thereafter shall maintain
in full force and effect, any permit, approval or license which is required
by any governmental or nongovernmental agency or insurance regulatory body
for the operation and maintenance of the Demised Premises and the use thereof
in connection with the Business (including, without limitation, the
Governmental Authorizations transferred to or made available to the Tenant
pursuant to the Contribution Agreement), and shall promptly furnish the
Landlord with a copy of same. The Tenant shall not use or allow the Premises
or any part thereof to be used or occupied for any unlawful purpose.
Section 21.3 In furtherance and not in limitation of the
foregoing, the Tenant's use of the Premises and the Personal Property shall
at all times be subject to the Landlord's reasonable health, safety and
operating regulations and guidelines from time to time which are applicable
to the Premises, the Personal Property and/or the Tenant's use thereof, to
the extent the same have been furnished to the Tenant by the Landlord.
ARTICLE 22
TRANSFER; ASSIGNMENT AND SUBLETTING
Section 22.1 The Tenant shall not assign, sublet, transfer,
sell or otherwise convey the whole or any part of its interest in this Lease.
Notwithstanding the foregoing, Tenant may, subject to the limitations set
forth in Section 21.1 hereof, assign or sublet the whole or any part of its
interest in this Lease to any Affiliate of Tenant for such Affiliate's use in
connection with the Business provided that such Affiliate expressly assumes
the liabilities of the Tenant hereunder. Notwithstanding such assignment and
assumption, the Tenant shall not be released from liability hereunder without
the consent of the Landlord, which consent shall not be unreasonably withheld
if the assignee has a net worth on the date of the assignment which is
reasonably adequate for the performance by the Tenant of its obligations
hereunder. Tenant shall notify Landlord of any such proposed assignment or
sublease at least three (3) months prior to the effective date of such
assignment or sublease.
Section 22.2. Subject to the rights of the Tenant set forth in
the following Section 22.3, the Landlord may assign or transfer its interest
in the Lease or the Premises or Personal Property at any time during the Term
hereof, provided that any transferee expressly assumes the liabilities of the
Landlord hereunder. Notwithstanding such assignment and assumption, the
Landlord shall not be released from liability hereunder without the consent
of the Tenant, which consent shall not be unreasonably withheld if the
assignee or transferee has a net worth on the date of the assignment which is
reasonably adequate for the performance by the Landlord of its obligations
hereunder. Landlord shall notify Tenant of any such proposed assignment or
transfer at least three (3) months prior to the effective date of such
assignment or transfer. The foregoing provisions of this Section 22.2 shall
not apply to the creation of any security interest, mortgage or lien by
Landlord on its interest in the Lease of the Premises or Personal Property in
connection with its existing primary credit facility or any replacement or
extension thereof.
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Section 22.3 If at any time Landlord desires to transfer all
of its right, title and interest in and to the Premises and Personal Property
to any person who is not an Affiliate of Landlord, Landlord shall deliver to
Tenant a written notice (the "OFFER NOTICE") specifying all of the material
terms of the proposed sale (the "OFFER"), including the consideration for
which Landlord proposes to sell the Premises and Personal Property and any
copies of any agreement or documents to be executed or delivered in
connection with the proposed sale. Thereafter, the Tenant shall have the
exclusive right for a period of sixty (60) days after receipt of the Offer
Notice to purchase all, but not less than all, of the Premises and Personal
Property upon the terms and conditions contained in the Offer Notice.
Section 22.4 For purposes of this Lease, "AFFILIATE" means,
with respect to any person, any other person directly or indirectly
controlling, controlled by or under common control with, such person.
Control of any person shall consist of the power to direct the management and
policies of such person whether through the ownership of voting securities or
by contract or otherwise and shall be deemed to exist upon the ownership of
securities entitling the holder thereof to exercise more than 50% of the
voting power in the election of directors (or other similar positions) of
such person.
ARTICLE 23
INVALIDITY OF PARTICULAR PROVISIONS
Section 23.1 If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
ARTICLE 24
ALLOCATION OF EXPENSES
Section 24.1 The Tenant and the Landlord agree that (i) all
costs and expenses solely attributable to the Demised Premises, the Personal
Property and the use thereof are to be borne by the Tenant (other than the
costs of certain structural repairs to be borne by the Landlord as provided
in Article 8 hereof), (ii) all costs and expenses solely attributable to the
portion of the Plant used and occupied exclusively by the Landlord or any
party other than the Tenant (collectively, "LANDLORD'S PREMISES") are to be
borne by the Landlord, and (iii) all costs and expenses relating to the
Licensed Premises are to be equitably apportioned between the Tenant and the
Landlord.
Section 24.2 The Landlord and the Tenant shall cooperate with
each other to arrange for Taxes, utilities and services exclusively relating
to or serving the Demised Premises to be separately assessed, metered or
contracted for, to the extent reasonably practicable and unless the Landlord
and the Tenant otherwise mutually agree (E.G. for the purpose of achieving
25
cost savings). The cost and expense of any Separation Work performed in
connection therewith shall be borne by the Tenant, as provided in Article 3
above.
Section 24.3 The Landlord and the Tenant agree that the
apportionment of costs or expenses (including Taxes, utilities and services)
relating partially to Landlord's Premises or a portion thereof, and partially
to the Demised Premises or a portion thereof, shall generally be made in
accordance with the ratio of the interior square footage of buildings lying
within the Demised Premises (or such portion thereof) to the square footage
of buildings lying within the Landlord's Premises (or portion thereof) taking
in account the total area occupied and their respective requirements based on
usage unless otherwise provided in Exhibit B. Similarly, apportionment of
Licensed Premises expenses shall generally be made in accordance with the
ratio of the interior square footage of all buildings lying within the entire
Demised Premises to the interior square footage of all buildings lying within
the entire Landlord's Premises taking in account the total area occupied and
their respective requirements based on usage unless otherwise provided in
Exhibit B. Notwithstanding the foregoing, if the method of apportionment
described in the preceding two sentences would be inequitable in any material
respect (E.G., because the benefit from the service in question, the use of
the utilities in question, or the value of the properties in question is
disproportionate), then a more equitable basis of allocation shall be used.
Section 24.4 Attached hereto as EXHIBIT "B" is a schedule of
Initial Expense Allocations pursuant to which the Landlord and the Tenant
have attempted to identify, and equitably apportion between the Landlord and
the Tenant, certain costs and expenses relating to the Demised Premises
and/or the Licensed Areas. Landlord and Tenant agree to review such
apportionment annually.
Section 24.5 If any item of cost or expense paid, payable or
incurred by either the Landlord or the Tenant is to be apportioned pursuant
to this Lease, the party to whom such cost or expense is billed or by whom it
is paid shall promptly notify the other party of the amount of such cost or
expense, and such other party's proportionate share thereof and the basis
upon which such proportionate share was determined. Such notice shall be
accompanied by reasonable documentation relating to such cost or expense.
The party so billed shall pay the billing party the amount requested within
fifteen (15) business days of receiving such xxxx. If the party billed
disputes the amount, such payment may be made under protest and the dispute
shall be settled in the manner provided in Section 24.6 below. Following
resolution of the dispute, any overpayment shall be refunded to the billed
party, and any underpayment shall be paid to the billing party, in each case
together with interest thereon at a rate equal to 2% above the rate of
interest publicly announced by Citibank, N.A. from time to time as its "base
rate" (unless such interest is waived by the party entitled to receive the
same).
Section 24.6 In the event any party disputes the amount of any
xxxx submitted to it for payment pursuant to Section 24.5 above, it shall
immediately notify the other party in writing, which notice shall set forth
the nature of the dispute with reasonable specificity and shall include any
documentation reasonably required to evaluate such dispute. Each party shall
appoint a representative who shall attempt to resolve the dispute. The
representatives shall use
26
the provisions of this paragraph and, if applicable, the methodology employed
by the parties in arriving at the Initial Expense Allocations set forth in
EXHIBIT "B" as guidelines in attempting to resolve the dispute. If such
representatives are unable to resolve the dispute within thirty (30) days,
they shall submit the dispute to arbitration in accordance with Article 28
hereof.
ARTICLE 25
BROKER
Section 25.1 Each party represents that it has not dealt with
any broker in connection with this Lease. The Landlord and the Tenant shall
indemnify and hold each other harmless from and against any and all loss,
claims, liabilities, damages and expenses, including without limitation,
attorneys' fees and expenses and court costs arising out of or in connection
with any breach or alleged breach of the above representation or any claim by
any person or entity for brokerage commissions or other compensation in
connection with this Lease. The provisions of this Article 25 shall survive
the expiration or sooner termination of this Lease.
ARTICLE 26
INDEMNITY
Section 26.1 Except as otherwise provided herein or in the
Contribution Agreement, the Tenant shall indemnify and hold harmless the
Landlord against and from any and all liability, fines, suits, claims,
demands, expenses (including without limitation, reasonable attorneys' fees
and disbursements) and actions of any kind or nature arising by reason of
injury to person or property occurring on or about the Premises and
occasioned in whole or in part by any act or omission of the Tenant, or of
any person on the Premises or any other part of the Plant by the license or
permission of the Tenant, expressed or implied, or by any use of the Premises
or the Personal Property, or any breach, violation or non-performance of any
covenant in this Lease on the part of the Tenant to be observed or performed;
provided, however, that with respect to the Original Demised Premises, the
Designated Original Licensed Premises, the Licensed Premises and the Original
Personal Property, the provisions of this Section 26.1 shall be in effect as
of the Commencement Date and with respect to the Additional Premises and the
New Personal Property, the provisions of this Section 26.1 shall be in effect
as of the date Tenant first occupied or used the same.
Section 26.2 Except as otherwise provided herein or in the
Contribution Agreement, Landlord shall indemnify and hold harmless the Tenant
from and against all claims against Tenant arising from any direct damage to
the Demised Premises and any bodily injury to Tenant's employees, agents or
invitees resulting from the negligence or wilful misconduct of Landlord or
its agents. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, fines, suits, claims,
demands and expenses (including, without limitation, reasonable attorneys'
fees and disbursements) incurred in or in connection with any such claim or
proceeding brought thereon, but shall be limited to the extent any insurance
proceeds collectible by Tenant or such injured party with respect to such
damage or
27
injury are insufficient to satisfy same. Landlord shall have no liability
for any consequential damages suffered either by Tenant or by any party
claiming through Tenant.
Section 26.3 If any claim, action or proceeding is made or
brought against either party, which claim, action or proceeding the other
party shall be obligated to indemnify such first party against pursuant to
the terms of this Lease, then, upon demand by the indemnified party, the
indemnifying party, at its sole cost and expense, shall resist or defend such
claim, action or proceeding in the indemnified party's name, if necessary, by
such attorneys as the indemnified party shall approve, which approval shall
not be unreasonably withheld. Attorneys for the indemnifying party's insurer
are hereby deemed approved for purposes of this Section 26.3.
Notwithstanding the foregoing, an indemnified party may retain its own
attorneys to defend or assist in defending any claim, action or proceeding
involving potential liability of Five Million Dollars ($5,000,000) or more,
and the indemnifying party shall pay the reasonable fees and disbursements of
such attorneys. The provisions of this Article 26 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 27
COVENANTS TO BIND AND BENEFIT
RESPECTIVE PARTIES; MODIFICATION;
WAIVER OF TRIAL BY JURY;
EXCULPATION; UNAVOIDABLE DELAY; CONFLICT
Section 27.1 The covenants and agreements herein contained
shall bind and inure to the benefit of the Landlord and the Tenant. The term
"Landlord" means a landlord or lessor, and as used in this Lease means only
the owner, or the mortgagee in possession, for the time being of the Demised
Premises, or the owner of this Lease of the Demised Premises, so that in the
event of any transfer of the Demised Premises or of this Lease, except as set
forth in Section 22.2, the Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of the Landlord hereunder, and it
shall be deemed and construed without further agreement between the parties,
or between the parties and the purchaser, at the time of any such transfer,
that the purchaser of the Demised Premises of the Landlord's interest in this
Lease has assumed and agreed to carry out any and all covenants and
obligations of the Landlord hereunder.
Section 27.2 The terms and provisions of this Lease may not be
altered, modified, waived or terminated except by an agreement in writing
signed by the party to be charged.
Section 27.3 It is mutually agreed by and between the Landlord
and the Tenant that the respective parties hereto shall and they hereby do
waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with the Lease, the relationship of
the Landlord and the Tenant, the Tenant's use of or occupancy of the Premises
or the Personal Property, and any emergency or any other statutory remedy.
It is further mutually agreed that in the event the Landlord commences any
summary proceeding for possession of the Demised
28
Premises and the Personal Property, the Tenant will not interpose any
counterclaim of whatever nature or description in such proceeding.
Section 27.4 Notwithstanding anything herein or in any rule,
law or statute to the contrary, the Tenant hereby acknowledges and agrees
that to the extent that the Landlord shall at any time have any liability
under, pursuant to or in connection with this Lease, none of the Tenant, its
officers, directors, partners, associates, employees, agents, guests,
licensees or invitees (or any other party claiming through or on behalf of
the Tenant) shall seek to enforce any personal or money judgment against the
Landlord except against the equity interest of the Landlord in the Plant. In
addition to and not in limitation of the foregoing, the Tenant further hereby
acknowledges and agrees that, in no event and under no circumstances, shall
the Landlord or any director indirect partner, officer, director, employee,
agent or principal (disclosed or undisclosed) of the Landlord have any
personal liability or monetary or other obligation of any kind under or
pursuant to this Lease, except that the Landlord may be held liable to the
extent of its equity interest in the Land and the Building. Any attempt by
the Tenant or any officer, director, direct or indirect partner, associate,
employee, agent, guest, licensee or invitee of the Tenant (or any other party
claiming through or on behalf of the Tenant) to seek to enforce any such
personal liability or monetary or other obligation shall be and be deemed to
be in material violation by the Tenant of the terms of the tenancy created
hereby and shall, in addition to and not limitation of the Landlord's other
rights, powers, privileges and remedies under the terms and provisions of
this Lease or otherwise afforded by applicable law in respect thereof,
immediately vest the Landlord with the unconditional right and option to
cancel this Lease on five (5) days' notice to the Tenant.
Section 27.5 This Lease and the obligation of Tenant to pay
Basic Rent and Additional Rent hereunder and perform all of the other
covenants and agreements hereunder on the part of Tenant to be performed
shall in no way be affected, impaired or excused because Landlord is unable
to fulfill any of its obligations under this Lease expressly or implied to be
performed by Landlord or because Landlord is unable to make, or is delayed in
making any repairs, additions, alterations, improvements or decorations or is
unable to supply or is delayed in supplying any equipment or fixtures, if
Landlord is prevented or delayed from so doing by reason of strikes or labor
troubles or by accident, or by any cause whatsoever beyond Landlord's
control, including, but not limited to, laws, governmental preemption in
connection with a national emergency or by reason of any Requirements of any
governmental authority, or by reason of the conditions of supply and demand
which have been or are affected by war or other emergency ("UNAVOIDABLE
DELAYS").
Section 27.6 In the event of any inconsistency between the
terms and provisions of this Lease and the terms and provisions of the
Contribution Agreement, the terms and provisions of the Contribution
Agreement shall control.
ARTICLE 28
ARBITRATION
29
Section 28.1 In such cases where this Lease expressly provides
for the settlement of a dispute or question by arbitration, and only in such
cases, either Landlord or Tenant may demand arbitration. Upon such demand,
and except where other provisions of this Lease have special provisions
therefor, the dispute or question shall be determined by arbitration in
accordance with the provisions of Section 8.3 of the Contribution Agreement.
ARTICLE 29
HAZARDOUS SUBSTANCES; ENVIRONMENTAL LAWS
Section 29.1 COMPLIANCE WITH ENVIRONMENTAL LAWS. Except as
specifically set forth or contemplated by Section 6.3(a), 6.3(b), 6.3(c) and
7.1(a)(ii) of the Contribution Agreement, Tenant represents, covenants and
agrees that in conducting its business operations and/or its occupancy at the
Premises, it shall (i) comply with all applicable Environmental Laws (as that
term is defined in the Contribution Agreement), (ii) it shall not in any
manner cause the emission, discharge, issuance, release or distribution of
any Hazardous Substances (as that term is defined in the Contribution
Agreement) in violation of any Environmental Law, and (iii) it shall comply
with the terms and conditions of any permit issued to Landlord which relates
in whole or in part to Tenant's use or occupancy of the Premises, including
but not limited to the wastewater discharge permit and stormwater permit;
provided, however, that with respect to the Additional Premises and the
related Licensed Premises, the provisions of this Section 29.1 shall be in
effect as of the date Tenant first occupied or used the same.
Section 29.2 COPIES OF SUBMISSIONS. Upon the prior reasonable
written request of Landlord, Tenant shall supply Landlord with copies of any
notices, reports, correspondence and submissions made by Tenant to the United
States Environmental Protection Agency ("EPA"), the Pennsylvania Department
of Environmental Protection, the Ohio Department of Environmental Protection,
the United States Occupational Safety and Health Administration or any other
local, state or federal authority which requires submissions by Tenant of any
information concerning environmental matters or Hazardous Substances pursuant
to any Environmental Law. Tenant's obligation under this paragraph shall not
apply to attorney-client privileged communications or the attorney work
product doctrine or to any confidential business information submitted to
local, state or federal authorities under confidentiality protection to which
Landlord would not otherwise be entitled under the Contribution Agreement.
Section 29.3 TENANT'S REMEDIATION. Except as contemplated by
Section 29.1 hereof or Section 7.1(a)(ii) of the Contribution Agreement, in
the event of any spill, discharge, or release of any Hazardous Substances at,
under or about, the Premises solely caused by Tenant or relating to the
operations of Tenant's business and/or Tenant's occupancy at the Premises
(hereinafter collectively referred to as a "HAZARDOUS DISCHARGE") or upon the
issuance of any complaint, order, citation or notice of violation with regard
to air emissions, water discharges, noise emissions or any other
environmental, health or safety matter caused by Tenant or relating to the
operations of Tenant's business and/or occupancy at the Premises (hereinafter
collectively referred to as an "ENVIRONMENTAL COMPLAINT"), Tenant shall, at
its sole cost and expense, promptly take all such necessary steps to initiate
and diligently complete all remedial action
30
relating to the Hazardous Discharge or the issuance of such Environmental
Complaint in accordance with all applicable Environmental Laws to the
reasonable satisfaction of Landlord and the applicable governmental authority
including the payment of any and all costs and penalties assessed against the
Premises. Provided however, with respect to a Hazardous Discharge caused by
Landlord, Tenant shall have no obligation to conduct any such remedial
actions. Notwithstanding the foregoing, with respect to the Additional
Premises and the related Licensed Premises, the provisions of this Section
29.3 shall be in effect as of the date Tenant first occupied or used the same.
Section 29.4 COPIES OF NOTICES. In the event that Tenant
receives any notice, whether written or oral, concerning the occurrence of
any Hazardous Discharge required to be reported under any Environmental Law
or of any Environmental Complaint from any person, entity or governmental
agency, then Tenant shall give prompt oral notice to Landlord, and shall
within five (5) days thereafter, give written notice of same to Landlord,
which notice shall set forth specifically and in detail all relevant facts
and circumstances with respect thereto.
Section 29.5 TENANT'S FAILURE TO REMEDIATE UNDER SECTION 29.3,
LANDLORD'S RIGHT TO REMEDIATE. Upon the occurrence of a Hazardous Discharge
or Environmental Complaint, in the event Tenant fails to comply with Section
29.3, Landlord shall have the right, but not the obligation, after giving
Tenant at least five (5) days prior written notice (unless emergent
circumstances require less notice) and a reasonable opportunity to cure
(which cure shall not exceed fifteen (15) days, unless emergent circumstances
require less time) to enter onto the Premises and after advising Tenant, to
take any actions necessary or advisable to remove, clean up and minimize the
impact of, or otherwise deal with any Hazardous Discharge or any
Environmental Complaint pertaining to the Premises. In the event such cure
shall take more than fifteen (15) days to accomplish, Tenant shall have a
period of time equal to the earlier of the reasonable time necessary to
accomplish the cure or any requirement of any applicable governmental agency
or Environmental Law, provided Tenant commences the cure within the fifteen
(15) day period and thereafter diligently pursues same to completion. All
reasonable costs and expenses incurred by Landlord in the exercise of any
such rights shall be deemed to be Additional Rent hereunder and shall be
immediately payable by Tenant to Landlord upon demand.
Section 29.6 ENVIRONMENTAL INDEMNIFICATION. Except as
specifically set forth in Section 7.1(a)(ii) of the Contribution Agreement,
Tenant shall indemnify the Landlord, its affiliates, shareholders, directors,
officers and employees against, and hold them harmless from any and all
damage, claim, loss, liability and expense (including without limitation
reasonable expenses of investigation and reasonable attorney's fees and
expenses) incurred or suffered by Landlord, (i) arising out of or due to any
spill, discharge, or release of any Hazardous Substances on, from, under or
at the Premises resulting from events or conduct occurring after the
Commencement Date and solely caused by Tenant or relating to Tenant's
business operations and/or Tenant's occupancy at the Premises, (ii) due to
Tenant's failure to comply with its obligations under this Article, or (iii)
due to Tenant's breach of any representation, warranty covenant or other
agreement of the Tenant contained in this Article; provided, however, that
with
31
respect to the Additional Premises and the related Licensed Premises, the
provisions of this Section 29.6 shall be in effect as of the date Tenant
first occupied or used the same.
ARTICLE 30
MISCELLANEOUS
Section 30.1 CONTRIBUTION AGREEMENT. Notwithstanding the foregoing,
the terms of the Contribution Agreement shall, and shall be deemed to,
continue, subject to the terms, conditions and limitations applicable thereto.
Section 30.2 ENTIRE AGREEMENT. This Lease, together with the
Purchase Agreement dated as of April 1, 1999, by and among Accuride Ventures,
Inc., Accuride Corporation and Landlord (the "Purchase Agreement") and the
Formation Agreements (as defined in the Purchase Agreement), embodies the
entire agreement and understanding between the parties relating to the
subject matter hereof and thereof, and supersedes any prior oral or written
agreements, commitments or terms.
Section 30.3 SECTION HEADINGS; COUNTERPARTS; ETC. The section
headings of this Lease are for convenience of reference only and are not to
be considered in construing this Lease. This Lease may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 30.4 FURTHER ASSURANCES. Each party hereto shall execute and
deliver such additional documents and perform such acts as are reasonably
requested by the other party hereto in order to fully effect the intent of
this Lease.
32
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease
as of the date first set forth above.
LANDLORD:
XXXXXX ALUMINUM & CHEMICAL CORPORATION
By:___________________________
Name: Xxxx X. Xxxxxxx
Title: Vice President
TENANT:
AKW L.P., by AKW GENERAL PARTNER L.L.C., its
General Partner
By:_________________________
Name:
Title:
33
EXHIBIT "A-1"
Demised Premises and Licensed Premises
[to be prepared and attached]
EXHIBIT "A-2"
Original Personal Property
The following three overhead cranes located in buildings to be leased to
the Company:
-- Xxxxxxx double box bean bridge crane, 20-ton capacity x 60' span,
cab operated
-- Case double box beam mill crane, 15-ton capacity x 65' span, cab
operated
-- Shawbox double box beam mill crane, 20-ton capacity x 65' span
EXHIBIT "A-3"
New Personal Property
- The personal property and equipment, including, but not limited to, the
personal property and equipment relating to the electrical substation,
used by Tenant and located within the Designated Original Licensed
Premises or the Additional Premises.
EXHIBIT "B"
INITIAL EXPENSE ALLOCATION
EXPENSE METHOD OF ALLOCATING
-------------------------- --------------------------------------------------
Security Guard Services Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant
Snow Removal Services 100% Tenant
Lawn Care Services Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant
Mail Delivery & Pick Up 100% Tenant
Floor Mats and Uniforms 100% Tenant
Trash/Garbage Services 100% Tenant
Heating, Ventilation, Air Pro rata based upon total square footage included
Conditioning within the Premises and the total square footage
included within the Plant, and taking into account
the total area occupied and their respective
requirements based on usage
Fire Extinguisher Based on upon location within the Plant
Services
Telephone, Fax, Paging, 100% Tenant
Voice Mail, and Mobiles
(including service
contracts)
Environmental Engineering Invoices to Tenant and Landlord separately based
and Consulting Services on work individually authorized
Electricity Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant, and taking into account
the total area occupied and their respective
requirements based on usage
Natural Gas Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant, and taking into account
the total area occupied and their respective
requirements based on usage
Water & Sewer 100% Tenant
Taxes Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant
All Other Pro rata based upon total square footage included
within the Premises and the total square footage
included within the Plant, and taking into
account the total area occupied and their respective
requirements based on usage
SCHEDULE 8.1
Personal Property Maintenance Schedules and Procedures
