EXHIBIT 10.15
Draft 8/15/03
TENANT USE AGREEMENT
This Tenant Use Agreement ("Agreement") dated as of August __, 2002, is
made by and between NI Industries, Inc., a division of TriMas, a wholly owned
subsidiary of Metaldyne ("Landlord"), as contractor for the United States
Government and the Department of the Army (the "Government") and Environmental
Recycling Services of America, Inc., a California corporation ("Tenant"),
collectively the "Parties."
Recitals
The Government is the owner of the Riverbank Army Ammunition Plant
located at 0000 Xxxxx Xxxx, Xxxxxxxxx, California ("the Project").
Landlord operates and maintains the Project as a government contractor
pursuant to that certain Facility Use Contract between Landlord and the
Government dated May 31, 1994, as amended from time to time ("Facility
Contract").
Landlord desires to lease to Tenant and Tenant desires to lease from
Landlord the premises located at the Project consisting of approximately 51,394
square feet comprising 34,086 square feet located in building 3, approximately
8,208 square feet located in building 47 and approximately 3,600 square feet in
building 172 (the "Building"), approximately _____ square feet of open area
between building 3 and building 4 (the "Courtyard") and approximately ____
square feet adjacent to building 172 (the "Open Space") as depicted on the map,
for location purposes only, attached to this Agreement as Exhibit "A" and
incorporated by this reference, and that certain personal property owned by
Landlord (the "Personal Property") located in building 172 as set forth in
Schedule "I" attached to Exhibit "A". The Building, the Courtyard, the Open
Space and the Personal Property are collectively referred to as the "Premises".
In the event of any discrepancy between the description of the Premises in this
paragraph and the location map in Exhibit "A", the description in this
paragraph shall control.
NOW THEREFORE, for good and valuable consideration, the Parties agree as
follows:
ARTICLE 1. DEFINITIONS.
1.0 Definitions. As used in this Agreement, the following terms shall
have the following definitions:
"Alterations" shall mean any change or modification of any of the
improvements on the Premises from that which the possession of the Premises was
provided by Landlord to
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Draft 8/15/02
of no further force or effect, and the month to month rental of the Premises
shall terminate; or (ii) in the event that all of the Conditions Precedent are
fully and completely satisfied as provided herein, the last day of the month in
which the fifth (5th) anniversary of the Subsequent Commencement Date occurs.
4.01 Termination for Convenience of Government. The Government has the
right to terminate the Facility Contract for the Government's convenience upon
(i) thirty (30) days written notice during any national emergency declared by
the President or Congress of the United States or in the event of mobilization
or (ii) upon 180 days notice in the event the Government determines that
termination of the Facility Contract or any part thereof is in the best
interest of the Government. In the event that the Government terminates the
Facility Contract, then Landlord shall have the obligation (as between Landlord
and the Government) and the right (as between Landlord and Tenant) to terminate
this Agreement upon any conditions imposed by the Government; provided, however
that Landlord shall endeavor to provide to Tenant the benefit of any extended
time table for termination of the Agreement which Landlord is able to obtain
from the Government in the event the Government terminates the Facility
Contract for no-emergency reasons. Neither Landlord nor the Government shall
have any liability whatever to Tenant in the event of an early termination of
this Agreement in accordance with this Section 4.01 including without
limitation for direct or indirect damages, loss of use, loss of profits,
relocation expenses, or any consequential damages whatever.
ARTICLE 5. RENT.
5.00 Rent. From the Month to Month Commencement Date, rent for the
Premises shall be: (i) $4,000.00 per month for the first month; (ii) $9,000.00
per month for the second month; (iii) $11,000.00 per month for the third month;
(iv) $13,000.00 per month for the fourth month; (v) $15,000.00 per month for
the fifth month; and (vi) $18,370.00 per month thereafter, all of which is
payable in advance on the first day of each month during the Term (the "base
Rent"). Any and all other charges or amounts due under this Agreement shall be
deemed rent hereunder and the Base Rent and any such other charges or amounts
due under this Agreement shall be and collectively referred to as "Rent."
Tenant shall cause payment of the Rent to be received by Landlord in lawful
money of the United States, without offset or deduction, on or before the day
on which it is due under the terms of this Agreement. The Rent under this
Agreement for any period during the Term which is for less than one (1) full
calendar month shall be prorated based upon the actual number of days of the
calendar month involved. Payment of the Rent shall be mde to Landlord at its
address stated herein or to such other persons or at such other addresses as
Landlord may from time to time designate in writing to Tenant.
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5.01 Base Rent Adjustment. The monthly Base Rent shall be adjusted and
set in the following manner:
(a) Consumer Price Index. The Consumer Price Index for All Urban
Consumers (base year 1982-1984 = 100) for the United States, published by the
United States Department of Labor, Bureau of Labor Statistics ("Index").
(b) Calculation of Adjustment in Base Rent. Base Rent shall be
adjusted (increased but not decreased) every twelve (12) month period during
the Term, with the first adjustment effective twelve (12) months after the
Month to Month Commencement Date, and with adjustments thereafter effective on
the first (1st) day of the month next succeeding the twelve (12) month period
elapsed since the last adjustment (each an "Adjustment Date") to an amount
equal to the product obtained by multiplying the Base Rent in effect on the
Month to Month Commencement Date by a fraction, the numerator of which is the
Index most recently published prior to the Adjustment Date, and the denominator
of which is the Index most recently prior to the Month to Month Commencement
Date, subject to a minimum increase in Base Rent of three percent (3%) per
annum for the twelve (12) month period just elapsed prior to each Adjustment.
(c) Change in Index. If the Index is changed so that the base
year differs from that used as of the moth most immediately preceding the Month
to Month Commencement Date, the Index shall be converted in accordance with the
conversion factor published by the United States Department of Labor, Bureau of
Labor Statistics. If the Index is discontinued or revised during the term,
such other government index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
5.01 Security Deposit. Tenant shall pay to Landlord concurrently with
the execution of this Agreement a security deposit in the amount of $37,460.00
which shall be held by Landlord, without interest, as security for the
performance of Tenant's promises and obligations under this Agreement. The
security deposit is not an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Upon default by Tenant, Landlord may, from
time to time and without prejudice to any other remedy provided by this
Agreement or by law, use the security deposit to the extent necessary to pay
any arrears of Rent or other payments or liability caused by Tenant's default.
Tenant shall pay to Landlord on demand the amount of the security deposit that
was applied in order to restore the security deposit to the amount required
hereunder. Although the security deposit shall be deemed the property of the
Landlord, any remaining balance of said deposit shall be promptly returned by
Landlord to Tenant at the time after termination of this Agreement provided
that Tenant has fulfilled all of its obligations under this Agreement.
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