GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT ("Lease") is made by and between ALBEMARLE
CORPORATION, a Virginia corporation, with offices located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lessor") and MEMC PASADENA, INC., a Delaware
corporation, with offices located at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Lessee") and is effective as of this 31st day of July, 1995.
W I T N E S S E T H:
WHEREAS:
A. Lessor is the owner in fee simple of a parcel of real estate containing
approximately 477 acres in Pasadena, Texas, as more fully described in Exhibit
A-1 hereto, and as depicted on Exhibit A-2 hereto (the "Pasadena Plant").
B. Lessee desires to lease from Lessor a portion of the Pasadena Plant,
which portion contains approximately 12.3 acres as described in Exhibit B-1, and
as depicted on Exhibit B-2 (collectively, the "Land"). As used herein, the term
"Land" refers to the real property only, and not to any improvements thereon
from time to time during the term hereof.
▇. ▇▇▇▇▇▇ desires to lease the Land to Lessee pursuant to the terms
contained herein.
▇. ▇▇▇▇▇▇ and Lessee have entered into that certain Operating Agreement of
even date herewith (the "Operating Agreement") with respect to Albemarle's
operation of the Electronic Materials Facility (as defined in the Operating
Agreement), such Operating Agreement to be for a period of up to five (5) years
after the Closing Date and a Utilities and Services Agreement of even date
herewith (the "Utilities and Services Agreement") with respect to the supply of
Utilities and Services (as defined in the Utilities and Services Agreement)
after termination of the Operating Agreement.
NOW, THEREFORE, in consideration of the premises and the rents and the
mutual covenants and agreements hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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SECTION 1.
DEMISE, DESCRIPTION, USE OF THE LAND AND TERM
1.1 Demise, Description and Use. Lessor leases to Lessee and Lessee rents
from Lessor, for the purposes described below and for no other purpose, the
surface of the Land. This Lease is a surface lease only, and Lessee is granted
no rights of any kind to any oil and gas or other mineral contained under the
surface of the Land, such rights being expressly reserved to Lessor. The Land
may only be used as follows:
A. The Land may be used for the production of such granular polysilicon,
silane, sodium aluminum hydride, sodium aluminum fluoride and sodium
ethyl silicate products and such other products as may be permitted by
the Operating Agreement (collectively the "Permitted Products") and
Lessee's general activities in association with the production of the
Permitted Products.
B. In the event Lessee desires to use the Land for the manufacture of
silicon derivatives (whether in commercial quantities or not) other
than the Permitted Products ("Other Products"), Lessee shall so advise
Lessor in writing not less than three (3) months prior to the
anticipated commencement of production of the Other Products, and
Lessee and Lessor shall meet an discuss in good faith the proposed
manufacture of the Other Products by Lessee on the Land. Lessor's
prior written consent shall be required prior to the manufacture of
Other Products on the Land, which consent shall not be unreasonably
withheld or delayed.
C. The Land may not be used for any other reason, nor may Lessee produce,
manufacture, store or process at the Land any products, chemicals,
substances or materials of any kind (except as a raw material,
processing material, byproduct or waste of the products permitted to
be produced pursuant to (A) or (B)) except with the prior written
consent of Lessor, which may or may not grant such a request in its
sole discretion.
1.2 Term. The initial term of this Lease ("Initial Term") shall commence
upon the Commencement Date (as hereinafter defined) and shall terminate on the
day which is one day prior to the 35th anniversary of the Commencement Date,
unless sooner terminated as herein provided. The Initial Term shall be extended
automatically for four (4) additional five (5) year periods (an "Extension
Term") unless Lessee shall have given Lessor written notice on non-renewal at
least 12 months prior to the end of the Initial Term or any subsequent Extension
Term (the Initial Term and any Extension Term are referred to as the "Lease
Term"). The last day of the Lease Term is called the Termination Date. If at any
time during the term of this Lease and prior to the Termination Date, Lessee
permanently ceases or suspends for a period in excess of two years the
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production in commercial quantities of Permitted Products and Other Products on
the Land, then upon written notice by Lessor to Lessee, this Lease shall be
terminated ("Early Termination Date") and at the Early Termination Date all of
the provisions regarding termination of this Lease shall become immediately
applicable, and all of Lessee's right and interest in and to the Land shall
terminate.
1.3 Commencement Date. The Commencement Date shall be the Closing Date as
defined in that certain Asset Purchase Agreement among Lessee, MEMC Electronic
Materials Company, Inc. and Lessor of even date herewith.
SECTION 2.
RENT, TAXES AND UTILITIES
2.1 Rent. Lessee covenants and agrees to pay Lessor the amount of One and
No/100ths Dollar ($1.00) per year of the Lease Term representing rent ("Rent").
Rent shall be payable on the Commencement Date and on each annual anniversary of
the Commencement Date throughout the Lease Term.
2.2 Taxes. During the Lease Term, Lessee shall pay when due all real estate
taxes, installments of special assessments, sewer rental, rates and charges,
transit taxes, state or local governmental charges, whether general, special,
ordinary or extraordinary, which shall now or hereafter be assessed against the
Land (collectively, "Taxes"). Lessor shall be obligated to pay the portion, if
any, of any ▇▇▇▇ for Taxes applicable to the period prior to the Commencement
Date and to the period after the expiration or earlier termination of the Lease
Term. In the event that the Land is not currently separately assessed as a
distinct parcel of real property, then Lessor and Lessee shall cooperate in good
faith to take all reasonable steps necessary to cause the Land to be separately
assessed for Taxes. Until the Land has been separately assessed for Taxes,
Lessor and Lessee agree to negotiate in good faith to determine an allocation of
Taxes attributable to the Land based upon the relative fair market value of the
Land as compared to the larger parcel of real property on which the applicable
tax ▇▇▇▇ pertains. In the event that Lessor and Lessee fail to agree upon such
allocation, then the matter shall be resolved by arbitration in accordance with
the provisions of Article 28.04 of the Operating Agreement. Upon written request
of Lessor, Lessee shall deliver to Lessor proof of payment of all Taxes. In the
event that Lessee fails to pay any such Taxes when due, Lessor may, but shall
not be obligated to, pay such Taxes, in which event, Lessee shall be obligated
to immediately reimburse Lessor for such sums paid by Lessor, plus interest on
such sums from the date paid by Lessor until payment is made by Lessee to Lessor
at a rate equal to five (5%) percent per annum above the Prime Rate, or at the
maximum legal rate, whichever is lower. For purposes of this Lease, the term
"Prime Rate" shall mean the base rate of interest charged on corporate loans at
large U.S. money center commercial banks as reported in The Wall Street Journal,
Midwest Edition, under the heading "Money Rates."
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2.3 Contest of Taxes. In the event that Lessee makes a request of Lessor,
Lessor may, at Lessee's expense, contest by legal proceeding, or in such other
manner as may be reasonably specified by Lessee, the validity or amount of any
Taxes or the assessed value of the Land. In the event that Lessor fails to do so
after a request has been made by Lessee, then Lessee shall have the right to
contest by legal proceeding, or in such other manner as may be reasonably
determined by Lessee, the validity or amount of any Taxes or the assessed value
of the Land. Lessee may conduct said contest in name of Lessor, if necessary.
Prior to any such contest by legal proceeding or other action, Lessee shall
deposit with Lessor an amount equal to the Taxes levied by the taxing authority.
If the contest by legal proceeding or other action is successful, then Lessor
shall immediately return to Lessee the portion of such deposit which is not owed
as Taxes. Lessor shall, within fifteen (15) days after learning of any increase
of change in the assessment or the rate of Taxes, advise Lessee in writing
thereof and Lessee shall, within ten (10) days of the receipt of said notice
from Lessor, advise Lessor in writing in the event Lessee elects to contest said
change. Lessor agrees that it will, at Lessee's expense, provide reasonable
cooperation to Lessee in connection with such contest. Any contest conducted by
Lessee hereunder shall be at Lessee's expense, and, in the event that any
penalties, interest or late charges become payable with respect to the Taxes as
a result of such contest, Lessee shall pay the same or shall reimburse Lessor
therefor.
2.4 Utilities. Lessee shall be responsible for the payment of all
utilities, including, without limitation, water, gas and electricity for the
Land. Notwithstanding the above, in the event of any conflict between the terms
of this paragraph and the terms of the Operating Agreement or the Utilities and
Services Agreement, the terms of said Operating Agreement or Utilities and
Services Agreement shall control.
2.5 Triple Net Lease. Except as otherwise specifically provided herein,
this Lease is intended by the parties to be interpreted for all purposes as a
triple net lease.
SECTION 3.
TITLE, QUIET ENJOYMENT AND POSSESSION
3.1 Title and Quiet Enjoyment. Lessor represents and warrants to Lessee
that Lessor has good and marketable legal title to the Land, subject to those
liens, mortgage, charges, pledges, easements, encumbrances and imperfections of
title of record. Lessor has full power and authority to enter into and perform
this Lease, and Lessee shall have quiet and peaceable possession of the demised
premises during the Lease Term. This Lease is subject to existing easements and
rights of way, if any, including pipeline(s), utilities (including firewater and
other connections of Lessor), and any government restrictions.
3.2 Possession. Lessor covenants that it will deliver to Lessee possession
of the Land at the Commencement Date. No rents or other charges shall accrue or
be payable by Lessee during any period prior to such tender.
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SECTION 4.
CONDITION AND IMPROVEMENT OF PREMISES
4.1 Condition. Other than the warranties of title, quiet enjoyment and
possession as provided above, or as otherwise set forth in the Asset Purchase
Agreement, the Operating Agreement or the Utilities and Services Agreement,
Lessor provides the Land to Lessee "as-is" and "where-is", without any warranty
of any kind, including any warranty of merchantability or fitness for any
particular purpose.
4.2 Compliance. During the term of this Lease, each of Lessor and Lessee
shall comply with all applicable statutes, ordinances, rules, orders,
regulations and requirements (including but not limited to matters relating to
the environment) of the Federal, State and municipal governments and of any of
their departments or bureaus (hereinafter "Laws") affecting the Land. Lessee
shall at all times operate and maintain the Land so as not to cause a nuisance
or be a hazard to safety or the environment. Lessee agrees to defend, indemnify
and hold Lessor, its successor and assigns and their officers, directors,
employees and representatives from and against any non-compliance by Lessee with
Laws and Lessee's obligations under this Section.
4.3 Improvements. Lessee shall have the right at any time during the Lease
Term, at its sole cost and expense, to demolish, rebuild, repair or construct
any Improvement(s) (as hereinafter defined) on the Land as well as any
preliminary work required to effect such Improvements, provided that same is in
compliance with all Laws and the terms of this Lease. During the Lease Term, all
Improvements shall be deemed the property of Lessee. Upon the termination of the
Lease Term, Lessee shall, unless Lessor directs otherwise, remove from the Land
all above ground structures, improvements and foundations, whether or not
installed, erected or placed on the Land by Lessee. If Lessee fails to remove
all such structures, improvements and foundations or other property which
currently exist or which it may have installed, erected or placed upon the Land,
Lessor may remove same at Lessee's cost and expense or retain such without
compensation to Lessee. For purposes of this Lease, an "Improvement" is any
valuable addition or amelioration to the Land intended to enhance its value,
beauty, utility or to adapt it for a specific purpose, including, but not
limited to, structures, streets, sidewalks, sewers, utilities and landscaping,
both above ground and below.
4.4 Easements.
4.4.1 Reciprocal Easement. Lessor and Lessee hereby covenant and agree that
they will enter into a legally valid, binding and recorded reciprocal easement
agreement (substantially in the form attached hereto as Exhibit C) whereby the
parties will grant to each other easements for pedestrians and vehicular access
over the Pasadena Plant and the Land respectively for the parties' respective
licensees' and the parties' invitees' mutual use and benefit. Said easement
shall be entered into as of the Commencement Date.
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4.4.2 Lessee Utility Easement. Lessee covenants and agrees that, at the
request of Lessor, Lessee shall promptly execute and deliver a legally valid,
binding and recordable easement agreement (which shall be for the full term of
the Lease (or such longer period as Lessee shall have an interest in the Land))
(substantially in the form attached hereto as Exhibit D) whereby Lessee provides
one or more easements to Lessor over, across, upon, in or under, as the case may
be, a certain portion or portions of the Land to be agreed upon in good faith
between the parties to enable Lessor to obtain, install, operate, maintain,
repair and replace utilities, including, without limitation, electricity, gas,
telephone, sewage and water from the applicable providers to service the
Pasadena Plant, and to repair fences, it being the intent that the location of
such easements shall be in the most convenient place for the provision of such
utilities to the extent reasonably practicable, while providing the least
inconvenience to Lessee. Lessee shall also provide Lessor, its agents and
contractors, access across other parts of the Land for the purpose of ingress
and egress to said easement locations.
4.4.3 Lessor Utility Easement. Lessor covenants and agrees that, at the
request of Lessee, Lessor shall promptly execute and deliver a legally valid,
binding and recordable easement agreement (which shall be for the full term of
the Lease (or such longer period as Lessee shall have an interest in the Land))
(substantially in the form attached hereto as Exhibit D) whereby Lessor provides
one or more easements to Lessee over, across, upon, in or under, as the case may
be, a certain portion or portions of the Pasadena Plant to be agreed upon in
good faith between the parties to enable Lessee to obtain, install, operate,
maintain, repair and replace utilities, including, without limitation,
electricity, gas, telephone, sewage and water from the applicable providers to
service the Land, and to repair fences, it being the intent that the location of
such easements shall be in the most convenient place for the provision of such
utilities to the extent reasonably practicable, while providing the least
inconvenience to Lessor. Lessor shall also provide Lessee, its agents and
contractors, access across other parts of the Pasadena Plant for the purpose of
ingress and egress to said easement locations.
4.4.4 Compliance with Rules and Regulations. While on the property of the
other party, Lessor and Lessee agree to cause all persons utilizing any
easements (including, without limitation, Lessor's and Lessee's employees,
customers, invitees and contractors) to obey fully all rules and regulations of
the other party, including but not limited to rules and regulations relating to
safety, security and vehicle operation.
4.5 Fencing. Lessee, at its expense, will at Lessor's request erect a fence
along the perimeter of the Land, and as described in and depicted on Exhibit
B-2. Lessor shall permit Lessee and its agents and contractors access over the
Pasadena Plant to the extent reasonably necessary or convenient in connection
with the ongoing maintenance, repair and replacement of said fence. Except as
otherwise agreed to by the parties in writing, Lessee shall at all times be
responsible for furnishing its own security for its personnel and property and
Lessor shall not provide any security services to Lessee.
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SECTION 5.
NO ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
5.1 Lessee may not encumber by mortgage, deed of trust or otherwise,
Lessee's leasehold interest and estate in the Land.
SECTION 6.
ASSIGNMENT AND SUBLETTING
6.1 Assignment. Lessee shall have the right to assign this Lease together
with all of the rights of the Lessee hereunder only to a successor in interest
to substantially all of Lessee's polysilicon manufacturing business carried out
on the Land. Otherwise, Lessee may not assign this Lease without the prior
written consent of Lessor, and any attempted assignment will be null and void.
Lessee shall give Lessor notice of any intended assignment of this Lease not
less than thirty (30) days prior to the proposed effective date of such
assignment. In the event that any proposed assignee of Lessee is a competitor of
products manufactured by Lessor, Ethyl Corporation or the successors to either
of their products produced at the Pasadena Plant, or becomes an affiliate or
merged with a competitor of products manufactured by Lessor, Ethyl Corporation
or the successors to either of their products produced at the Pasadena Plant,
then, as a condition of such assignment or subleasing, Lessor shall have the
right to require such assignee or sublessee and its representatives to agree to
reasonable obligations of confidentiality and non-use with respect to any
proprietary information of Lessor, Ethyl Corporation, or the successors to
either of their products produced at the Pasadena Plant, as the case may be, of
which it or they may become aware of at the Pasadena Plant.
6.2 Sublet. Lessee shall not sublet the Land, this Lease, or any portion
thereof, at any time, without the prior written consent of Lessor.
6.3 Lessor Restriction. Lessor is hereby prohibited from assigning this
Lease or agreeing to assign this Lease to or with any other party (other than to
any successor in interest to Lessor's equitable interest in the Land, and
pursuant to which assignment shall be mandatory upon Lessor, and which Lessor
shall obtain an assumption, in writing, from such successor of the terms and
provisions of this Lease) and any attempt to do so shall be deemed null and
void. In the event that any proposed assignee of Lessor is a competitor of
products manufactured by Lessee or its successor on the Land, or becomes an
affiliate of or merged with a competitor of products manufactured by Lessee or
its successor on the Land, then, as a condition of such assignment or
subleasing, Lessee shall have the right to require such assignee or sublessee
and its representatives to agree to reasonable obligations of confidentiality
and non-use with respect to any proprietary information of Lessee or its
successor for products produced on the Land, or of which it or they may become
aware of at the Land.
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SECTION 7.
DAMAGE AND DESTRUCTION, INDEMNIFICATION, INSURANCE
7.1 Damage or Destruction of Improvements. If at any time during the Lease
Term Improvements which are erected upon the Land are damaged or destroyed,
Lessee shall not be obligated to repair or replace any damaged or destroyed
Improvements.
7.2 Cooperation. Lessor and Lessee agree to cooperate with each other in
good faith to develop methods to minimize exposure for claims from employees,
subcontractors and invitees.
7.3 Liability Insurance. Lessor and Lessee shall each (at their own cost)
obtain comprehensive general liability coverage of not less than $5,000,000, as
part of its insurance coverage for the Pasadena Plant and the Land,
respectively, and shall name the other party as an additional insured. The
parties shall provide each other with certification of such insurance upon
written request. This minimum coverage shall be adjusted for inflation during
the Lease Term.
7.4 Waiver of Subrogation. Whenever any loss, cost, damage or expense
resulting from public liability or any other casualty is incurred by either of
the parties to this Lease in connection with the Pasadena Plant or the Land and
such party is then covered in whole or in part by insurance with respect to such
loss, cost, damage or expense, said covered party hereby releases the other
party of any and all liability to the extent of any amount recovered by reason
of such insurance and waives any right of subrogation, which might otherwise
exist in or accrue to any person on account thereof, provided that such release
of liability and waiver of right of subrogation shall not be operative in any
case where the effect thereof is to invalidate such insurance coverage.
SECTION 8.
REPAIRS AND MAINTENANCE
8.1 Maintenance and Repair. Except as provided in Section 7.1 to the
contrary, during the term of this Lease, the Land and all buildings and
Improvements thereon shall be kept by Lessee in a safe, clean and serviceable,
and environmentally sound condition and in a good state of repair (all
maintenance is to be at Lessee's sole cost and expense). Except as provided in
Section 7.1 to the contrary, Lessee will keep the Land, the buildings and the
Improvements (including sidewalks, roads and driveways) in general conformance
with the condition of the Pasadena Plant. Except to the extent otherwise
provided herein or in any other agreement between Lessor and Lessee, Lessor
shall not be required to maintain, repair or rebuild, or to make any
alterations, replacements or renewals of any nature or description to the
Improvements, whether ordinary or extraordinary, structural or non-structural,
foreseen or unforeseen.
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8.2 No Mechanic's Liens. Lessee shall not permit any mechanic's or
materialmen's liens (herein collectively called "mechanic's liens") to be filed
against the Land by reason of services or material supplied or claimed to have
been supplied. If any such mechanic's liens shall at any time be filed, Lessee
shall cause the same to be discharged of record within thirty (30) days after
the recording thereof or diligently contest same and if judgment is rendered,
pay such judgment. If Lessee shall fail to discharge such mechanic's liens upon
such judgment, then, in addition to any other right or remedy, Lessor party may,
but shall not be obligated to, discharge the lien, after reasonable
investigation as to its validity. All amounts expended by Lessor to contest or
discharge such lien, or both, shall be subject to immediate reimbursement by
Lessee on demand, and shall be subject to interest until paid at the rate of
five percent (5%) plus the Prime Rate, or the maximum legal rate, whichever is
less.
SECTION 9.
CONDEMNATION
9.1 Taking of Whole. If the whole of the Land shall be taken, condemned or
acquired by deed in lieu thereof by any competent authority or if such a portion
of the Land shall be so taken or acquired that as a result thereof the balance
cannot, in Lessee's opinion, be used for Lessee's intended use, then in either
of such events, the Lease Term shall terminate upon, at Lessee's election,
either (i) commencement of the condemnation action or notice thereof, or (ii)
delivery of possession to the condemning authority. In either case, all rental
and other sums payable shall hereunder be prorated to such date.
9.2 Partial Taking. If only a part of the Land shall be so taken, condemned
or acquired, and as a result thereof the balance of the Land can, in Lessee's
opinion, be used for Lessee's intended use, then this Lease shall not terminate,
and rental to be paid from the date of such taking until the end of the Lease
Term shall be reduced in proportion to the square footage taken, condemned or
acquired.
9.3 Apportionment. In the event of the occurrence of either a taking of the
whole pursuant to Section 9.1 or a partial taking pursuant to Section 9.2, then
any award from the condemning authority for the taking of the Land shall be paid
to Lessor and any awarded from the condemning authority for the taking of the
Improvements shall be paid to Lessee.
SECTION 10.
REMEDIES FOR DEFAULT
10.1 Lessor's Remedies. If the Rent or any other payments due hereunder,
including Taxes, is not paid when same becomes due and payable and such monetary
default shall continue for thirty (30) days or more (after written notice of
such default by Lessor), or if default shall be made in the observance or
performance of any of the other mutual covenants or conditions in this Lease
which Lessee is required to observe and perform and such nonmonetary default
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shall continue for sixty (60) days or more after written notice to Lessee (under
such default cannot be cured within said 60 days and Lessee diligently pursues
said cure), Lessor may treat the occurrence of any one or more of the foregoing
events as a breach of this Lease, and thereupon at its option may, with any
additional notice required by law, Lessor may terminate this Lease and the term
created hereby, in which event Lessee shall surrender the Land and shall, unless
Lessor directs otherwise, remove all of Lessee's equipment, inventories,
supplies and other personal property within a reasonable time period.
10.2 Lessor's and Lessee's Remedies. Lessor and Lessee shall have any and
all remedies afforded by law and equity against the other, including specific
performance and offset, in the event that Lessor or Lessee, as the case may be,
defaults under any of the covenants, conditions or agreements contained in this
Lease.
10.3 Expenses of Enforcement. Anything herein to the contrary
notwithstanding, with regard to any controversy between Lessor and Lessee
respecting this Lease or acts or omissions done or suffered to be done pursuant
hereto, or any claims or action arising thereunder, the prevailing party shall
be entitled to recover, in addition to all damages and costs which would
otherwise be recoverable, all reasonable expenses, including fees of counsel,
incurred by such prevailing party in connection with such controversy, claim or
action, irrespective of whether such claim is liquidated, or whether such
controversy, claim or action is prosecuted to a final judgment.
10.4 Right of Parties to Perform. If Lessee, as the case may be, shall
default in the performance of any covenant on its part to be performed herein or
shall breach any representation or warranty given herein and shall fail to
remedy such default or breach with reasonable dispatch after the Lessor shall
have notified Lessee in writing of such default or breach, Lessor, without being
obligated to do so and without thereby waiving such default or breach, may taken
such action as is reasonable and appropriate to cure such default or breach.
Lessor's reasonable expenditures and costs in connection therewith shall be at
Lessee's expense and shall be payable as additional rent within thirty (30) days
after demand therefor is made by Lessor.
10.5 Remedies Cumulative. All remedies herein conferred upon parties shall
be cumulative and no one remedy shall be exclusive of any other remedy conferred
herein or by law.
SECTION 11.
MISCELLANEOUS
11.1 Entire Agreement. This Lease and the Exhibits attached hereto and
forming a part hereof set forth all the covenants, promises, agreements,
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conditions and understandings between Lessor and Lessee concerning the Land, and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them other than as herein set forth, except as
herein otherwise provided. No subsequent alteration, amendment, change or
addition to the Lease shall be binding upon Lessor or Lessee unless reduced to
writing and signed by them.
11.2 Binding Effect. The terms, agreements, covenants and conditions
contained in this Lease are binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
11.4 Notices. Any notice, demand, request or other instrument which may be
or is required to be given under this Lease shall be in writing and be delivered
in person, sent by private (including U.S. Postage Service) overnight courier,
postage prepaid and shall be addressed as follows:
If to Lessor:
Albemarle Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President, Manufacturing
with a copy to:
Albemarle Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Law Department
If to Lessee:
MEMC Pasadena, Inc.
c/o MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President-MEMC Pasadena, Inc.
copy to:
MEMC Pasadena Site Manager
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇
Attention: MEMC Site Coordinator
or at such other address as Lessee or Lessor shall designate by written notice
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to the other. Any such notice, demand, request or other instrument shall be
deemed to have been given in the case of personal delivery or overnight courier
on the date of actual receipt of delivery or refusal of delivery and in the case
of United States certified mail three (3) days after deposit with the United
States Postal Service.
11.4 Captions and Section Numbers. The captions, section numbers, article
numbers, and table of contents appearing in or attached to this Lease are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of such sections or articles of this Lease nor
in any way affect this Lease.
11.5 Partial Invalidity. If any term, covenant or condition 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, covenant or condition to persons or circumstances, other than those
as to which it is held invalid or unenforceable, shall not be affected thereby
and each term, covenant or condition of this Lease shall be valid and enforced
to the fullest extent permitted by law.
11.6 Insolvency. If Lessee or Guarantor (as defined in Section 12 below)
makes an assignment for the benefit of its creditor(s), or attachment or
garnishment proceedings are commenced, or a receiver is appointed over any
property of Lessee or Guarantor, or proceedings are instituted by or against
Lessee or Guarantor hereto under the Bankruptcy Code, then Lessor may terminate
this Agreement effective upon the date of such assignment, commencement,
appointment of institution or proceedings.
11.7 Construction of Lease. The language in all parts of Lease shall in all
cases be construed as a whole according to its fair meaning.
11.8 Governing Law. This Lease shall be construed and governed by the
internal laws and decisions of the State of Texas.
11.9 Memorandum. Lessee has the right to record a memorandum of this Lease
with a legal description of the Land with the county recorder or other
applicable governmental authority with reference to the Lease and any other
terms Lessee so determines.
11.10 Option to Terminate. Lessee shall have the right to terminate this
Lease upon (i) delivering written notice to Lessor of its intent to do so, and
(ii) paying to Lessor a termination fee equal to the amount of Rent due for the
remainder of the Lease Term and any payments then due or accrued, including
Taxes, up to the date of termination. Lessee shall be relieved from any further
liability for rent from the effective date of termination, provided that this
will not release Lessee from liability for occurrences prior to the effective
date of termination, Lessee's obligations with respect to return of the Land to
Lessor in the condition specified by this Lease or Lessee's violation of any
laws or governmental regulations (including without limitation, environmental
laws and regulations) during the Lease.
12
SECTION 12.
GUARANTY
12.1 Guaranty. MEMC Electronic Materials, Inc., parent company of Lessor,
absolutely, unconditionally and irrevocably the obligations of Lessor pursuant
to this Lease, and as such, is a contracting party to this Lease.
LESSOR: LESSEE:
ALBEMARLE CORPORATION MEMC PASADENA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇
------------------------------- ------------------------------
Its: Senior Vice President Its: President
Subscribed before me this 31st day Subscribed before me this 31st day
of July 1995 of July 1995
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Notary Public Notary Public
My commission expires: 6/20/96 My commission expires: 6/20/96
----------- ------------
MEMC ELECTRONIC MATERIALS, INC.
By: /s/ ▇▇▇▇ ▇▇ ▇▇▇▇
-------------------------------
Its:
Subscribed before me this 31st day
of July 1995
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Notary Public
My commission expires: 6/20/96
------------
13
EXHIBIT A-1
METES AND BOUND DESCRIPTION
477.4217 ACRES OF LAND
LOCATED IN THE
▇▇▇▇▇▇ ▇▇▇▇▇ SURVEY, A-18 AND THE
▇▇▇▇▇ ▇▇▇▇▇▇▇ SURVEY, A-698
▇▇▇▇▇▇ COUNTY, TEXAS
BEING 477.4217 acres of land located in the ▇▇▇▇▇▇ ▇▇▇▇▇ Survey, Abstract
No. 18 and the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Survey, Abstract No. 698, ▇▇▇▇▇▇ County, Texas,
same being a portion of that certain 682.3105 acre tract (called to contain
683.1599 acres) comprised of five tracts conveyed to Ethyl Corporation by the
following instruments:
1) 397 acres by instrument recorded in Volume 2176, Page 283 of the Deed
Records of ▇▇▇▇▇▇ County, Texas;
2) Residue of 7.283 acres (Ethyl Road, an 80 foot wide private road) by
instrument recorded in Volume 2176, Page 287 of said Deed Records;
3) 25.317 acres comprised of Parcel 1 containing 24.235 acres and Parcel
2 containing 1.082 acres by instrument recorded under County Clerk's
File (C.C.F.) No. G466418 of the Official Public Records of Real
Property, ▇▇▇▇▇▇ County, Texas (O.P.R.R.P.H.C.T.);
4) 181.536 acres by instrument recorded under C.C.F. No. K602614 of the
O.P.R.R.P.H.C.T.;
5) 72.039 acres by instrument recorded under C.C.F. No. M789119 of the
O.P.R.R.P.H.C.T.;
said 477.4217 acre tract being comprised of two separate tracts more
particularly described by metes and bounds as follows:
TRACT A
COMMENCING at said City of Houston Monument No. 5856-1603;
THENCE N 02(degree) 32' 14" W, a distance of 1505.42 feet to a 1/2-inch iron rod
found marking the northeast corner of said 72.0239 acre tract in the southerly
right-of-way line of the Port Terminal Railroad (based on a width of 100 feet),
same being the northwest corner of said 7.283 acre tract, same also being the
northeast corner and PLACE OF BEGINNING of the herein described tract (Monument
No. 72, X=3,216,867.54 feet and Y=707,138.33 feet);
THENCE S 01(degree) 46' 48" E, along the common line between said 72.0239 acre
tract and said 7.283 acre tract, a distance of 774.92 feet to a 5/8-inch rod
with aluminum disk set for the southeast corner of the herein described tract
(Monument No. 81, X=3,216,891.62 feet and Y=706,363.78 feet);
1
THENCE N 65(degree) 03' 13" W, a distance of 1,239.09 feet to a 5/8-inch iron
rod with aluminum disk set for the southwest corner of the herein described
tract (Monument No. 80, X=3,215,768.13 feet and Y=706,886.40 feet);
THENCE N 19(degree) 01' 41" W, a distance of 961.76 feet to a 5/8-inch iron rod
with aluminum disk set in the southerly right-of-way line of said Port Terminal
Railroad, same being the northwest corner of the herein described tract
(Monument No. 79, X=3,215,454.57 feet and Y=707,795.60 feet);
THENCE S 65(degree) 03' 13" E, along the southerly right-of-way line of said
Port Terminal Railroad, a distance of 1558.37 feet to the PLACE OF BEGINNING and
containing 22.2245 acres of land.
TRACT B
COMMENCING at said City of Houston Monument No. 5856-1603;
THENCE N 48(degree) 11' 05" E, a distance of 1562.77 feet to a concrete
monument (broken) found marking the southeast corner of said 181.536 acre tract
in the curved northerly right-of-way line of said Port Terminal Railroad, same
being the southwest corner of the residue of 525.997 acres of land conveyed to
Georgia-Pacific Chemicals, Inc. by instrument recorded under C.C.F. No. J838887
of the O.P.R.R.P.H.C.T., same also being the most southerly southeast corner and
PLACE OF BEGINNING of the herein described tract (Monument No. 31,
X=3,218,098.92 feet and Y=706,676.33 feet);
THENCE in a northwesterly direction along said curved northerly right-of-way
line concave to the north, having a radius of 5671.65 feet, a central angle of
00(degree) 43' 55", an Arc Length of 72.45 feet and a Long Chord which bears N
65(degree) 25' 10" W, 72.45 feet to a 5/8-inch iron rod found marking the end of
said curve (Monument No. 32, X=3,218,033.04 feet and Y=706,706.46 feet);
THENCE N 65(degree) 03' 13" W, along the northerly right-of-way of said Port
Terminal Railroad, a distance of 1,222.19 feet to a concrete monument with
aluminum disk set for a southwest corner of the herein described tract (Monument
No. 33, X=3,216,924.87 feet and Y=707,221.95 feet), same being the beginning of
a non-tangent curve to the left;
THENCE running concentric with and 9 feet easterly and northeasterly of the
easterly and northeasterly edge of a plant road named Ethyl Street, in a
northwesterly direction along said curve to the left having a Radius of 460.00
feet, a Central Angle of 66(degree) 24' 10", an Arc Length of 533.12 feet and a
Long Chord which bears N 31(degree) 22' 02" W, 503.78 feet to a 5/8-inch iron
rod with aluminum disk set for the end of said curve (Monument No. 34,
X=3,216,662.65 feet and Y=707,652.10 feet);
THENCE N 64(degree) 34' 07" W, parallel with and 9 feet northerly of the
northerly edge of said plant road, a distance of 348.62 feet to a 5/8-inch iron
rod with aluminum disk set for the beginning of a curve to the right (Monument
No. 35, X=3,216,347.81 feet and Y=707,801.81 feet);
2
THENCE running concentric with and 9 feet northeasterly of the northeasterly
edge of said plant road, in a northwesterly direction along said curve having a
Radius of 550.00 feet, a Central Angle of 37(degree) 09' 30", an Arc Length of
356.69 feet and a Long Chord which bears N 45(degree) 59' 22" W, 350.48 feet to
a 5/8-inch iron rod with aluminum disk set for the end of said curve (Monument
No. 36, X=3,216,095.74 feet and Y=708,045.31 feet);
THENCE N 27(degree) 24' 37" W, parallel with and 9 feet easterly of the easterly
edge of said plant road, a distance of 160.04 feet to an aluminum disk set on a
concrete slab for the beginning of a curve to the right (Monument No. 37,
X=3,216,022.07 feet and Y=708,187.38 feet);
THENCE running concentric with and 9 feet easterly of the easterly edge of said
plant road, in a northwesterly direction along said curve having a Radius of
650.00 feet, a Central Angle of 24(degree) 44' 17", an Arc Length of 280.64 feet
and a Long Chord which bears N 15(degree) 02' 29" W, 278.47 feet to a 5/8-inch
iron rod with aluminum disk set for the end of said curve (Monument No. 38,
X=3,215,949.80 feet and Y=708,456.31 feet);
THENCE N 02(degree) 40' 20" W, parallel with and 9 feet westerly of the
centerline of a railroad spur, a distance of 1694.37 to a 5/8-inch iron rod with
aluminum disk set for an angle point (Monument No. 39, X=3,215,870.80 feet and
Y=710,148.84 feet);
THENCE N 01(degree) 55' 46" W, parallel with and 9 feet easterly of the east
edge of said plant road, a distance of 467.28 feet to a concrete monument with
aluminum disk set for an angle point (Monument No. 40, X=3,215,855.07 feet and
Y=710,615.85 feet);
THENCE N 06(degree) 22' 22" E, a distance of 225.29 feet to a 5/8-inch iron rod
with aluminum disk set for an angle point (Monument No. 41, X=3,215,880.08 feet
and Y=710,839.75 feet);
THENCE N 02(degree) 40' 20" W, a distance of 746.68 feet to a 5/8-inch iron rod
with aluminum disk set for a corner (Monument No. 42, X=3,215,845.26 feet and
Y=711,585.61 feet);
THENCE S 87(degree) 19' 40" W, along the south edge of a plant road named Eighth
Street, a distance of 281.05 feet to a 5/8-inch iron rod with aluminum disk set
for a corner (Monument No. 43, X=3,215,564.52 feet and Y=711,572.51 feet);
THENCE S 02(degree) 40' 20" E, a distance of 72.23 feet to a 5/8-inch rod with
aluminum disk set for a corner (Monument No. 44, X=3,215,567.89 feet and
Y=711,500.35);
THENCE S 87(degree) 19' 40" W, a distance of 82.62 feet to an aluminum disk set
in the centerline expansion joint of a plant road named Center Street (Monument
No. 45, X=3,215,485.36 feet and Y=711,496.50 feet);
3
THENCE S 02(degree) 42' 38" E, along said centerline expansion joint, a distance
of 220.13 feet to an aluminum disk set for corner (Monument No. 46,
X=3,215,495.77 feet and Y=711,276.62 feet);
THENCE S 87(degree) 19' 40" W, a distance of 190.95 feet to a 5/8-inch iron rod
with aluminum disk set for a corner (Monument No. 47, X=3,215,305.02 feet and
Y=711,267.72 feet);
THENCE N 02(degree) 40' 20" W, a distance of 118.97 feet to a 5/8-inch iron rod
with aluminum disk set for a corner (Monument No. 48, X=3,215,299.48 feet and
Y=711,386.55 feet);
THENCE S 87(degree) 19' 40" W, a distance of 541.15 feet to concrete monument
with aluminum disk set for a corner (Monument No. 49, X=3,214,758.91 feet and
Y=711,361.32 feet);
THENCE S 00(degree) 08' 23" W, parallel with and 10 feet east of the east edge
of a plant road named South Avenue, a distance of 100.00 feet to a concrete
monument with aluminum disk set for a corner (Monument No. 50, X=3,214,758.67
feet and Y=711,261.32 feet);
THENCE S 02(degree) 40' 20" E, parallel with and 10 feet east of the east edge
of said plant road, a distance of 3111.20 feet to a concrete monument with
aluminum disk set in the curved northerly right-of-way line of the Port Terminal
Railroad, same being a southerly line of said 397 acre tract, same also being a
southeast corner of the herein described tract (Monument No. 51, X=3,214,903.72
feet and Y=708,153.51 feet);
THENCE in a northwesterly direction along said curved northerly right-of-way
line concave to the south, having a Radius of 2922.90 feet, a Central Angle of
07(degree) 28' 04", an Arc Length of 380.96 feet and a Long Chord which bears N
72(degree) 58' 43" W, 380.69 feet to a concrete monument with aluminum disk set
for a southwest corner of the herein described tract (Monument No. 52,
X=3,214,539.71 feet and Y=708,264.95 feet), same being a southwest corner of
said 397 acre tract, same also being a southeast corner of the residue of
338.561 acres of land (Tract A) conveyed to ▇▇▇▇▇▇▇▇ Chemical Company by
instrument recorded under C.C.F. No. H204648 of the O.P.R.R.P.H.C.T., said
338.561 acres of land being described by instrument recorded in Volume 5410,
Page 69 of said Deed Records;
THENCE N 27(degree) 34' 49" W, along a common line between said 397 acre tract
and said ▇▇▇▇▇▇▇▇ tract, a distance of 565.25 feet to a concrete monument with
aluminum disk set for a southwest corner of the herein described tract (Monument
No. 53, X=3,214,278.01 feet and Y=708,765.96 feet0;
THENCE N 02(degree) 38' 19" W, along a common line between said 397 acre tract
and said ▇▇▇▇▇▇▇▇ tract, a distance of 3026.42 feet to a concrete monument found
marking a northwest corner of said 397 acre tract, same being a northwest corner
of the herein described tract, same also being an interior corner of said
▇▇▇▇▇▇▇▇ tract, (Monument No. 54, X=3,214,138.67 feet and Y=711,789.17 feet);
4
THENCE N 87(degree) 23' 41" E, along a common line between said 397 acre tract
and the residue of said 338.561 acre tract, a distance of 606.70 feet to a
concrete monument with aluminum disk set for an interior corner of the herein
described tract (Monument No. 55, X=3,214,744.75 feet and Y=711,816.75 feet),
same being an interior corner of said 397 acre trace, same also being a
southeast corner of said ▇▇▇▇▇▇▇▇ tract;
THENCE N 02(degree) 37' 19" W, along a common line between said 397 acre tract
and said ▇▇▇▇▇▇▇▇ tract, a distance of 1072.80 feet to a concrete monument with
aluminum disk set for corner (Monument No. 56, X=3,214,695.67 feet and
Y=712,888.43 feet), same being the south corner of said 25.317 acre tract in a
west line of said 397 acre tract, same also being in the east line of said
▇▇▇▇▇▇▇▇ tract;
THENCE N 16(degree) 42' 00" W, a distance of 162.00 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 57, X=3,214,649.12 feet and
Y=713,043.60 feet), same being at an angle point in the common line between said
25.317 acre tract and said ▇▇▇▇▇▇▇▇ tract;
THENCE N 42(degree) 11' 19" W, a distance of 166.40 feet to a concrete monument
with a 2" aluminum disk found marked PC CO INT COR TR-2 (Monument No. 58,
X=3,214,537.37 feet and Y=713,166.89 feet), same being at an angle point in the
common line between said 25.317 acre tract and said ▇▇▇▇▇▇▇▇ tract;
THENCE N 56(degree) 20' 13" W, a distance of 228.00 feet to a concrete monument
with aluminum disk set for corner (Monument No. 59, X=3,214,347.60 feet and
Y=713,293.27 feet), same being at an angle point in common line between said
25.317 acrea tract of and said ▇▇▇▇▇▇▇▇ tract;
THENCE S 87(degree) 22' 41" W, a distance of 145.01 feet to a concrete monument
with a 2-inch aluminum disk found marked PC SW COR TR-2 marking a southwest
corner of said 25.317 acre tract, same being an interior corner of said ▇▇▇▇▇▇▇▇
tract (Monument No. 60, X=3,214,202.74 and Y=713,286.64 feet);
THENCE N 12(degree) 54' 19" W, running thru a dredged boat slip along a common
line between said 25.317 acre tract and said ▇▇▇▇▇▇▇▇ tract, a distance of
2099.13 feet to the northwest corner of said 25.317 acre tract located within
the Houston Ship Channel, same being the northeast corner of said ▇▇▇▇▇▇▇▇
tract;
THENCE S 81(degree) 51' 19" E, a distance of 343.20 feet;
THENCE N 57(degree)04' 14" E, a distance of 203.77 feet to the northeast corner
of said 25.317 acre tract located within the Houston Ship Channel;
THENCE S 12(degree) 54' 19" E, along the east line of said 25.317 acre tract, a
distance of 171.55 feet to its intersection with the southerly waters edge of
the Houston Ship Channel, same being the most northerly northwest corner of said
397 acre tract;
5
THENCE N 87(degree) 21' 54" E, along the southerly waters edge of the Houston
Ship Channel a distance of 29.44 feet to a northeast corner of the herein
described tract;
THENCE S 13(degree) 07' 30" E, at 8.77 feet pass a concrete monument with
aluminum disk set for reference (Monument No. 22, X=3,214,314.41 feet and
Y=715,220.48 feet), at 85.72 feet pass a 5/8-inch iron rod with aluminum disk
set on top of a levee for reference (Monument No. 21, X=3,214,331.88 feet and
Y=715,145.55 feet), continuing the same course running parallel with and
approximately 8 feet westerly of the westerly edge of a plant road named South
Street, a total distance of 760.97 to a concrete monument with aluminum disk set
for corner (Monument No. 20, X=3,214,485.22 feet and Y=714,487.93 feet);
THENCE N 87(degree) 19' 40" E, parallel with and approximately 9 feet south of
the south edge of a plant road named Second Street, a distance of 1220.65 feet
to a 5/8-inch iron rod with aluminum disk set for corner (Monument No. 19,
X=3,215,704.54 feet and Y=714,544.84 feet);
THENCE S 02(degree) 40' 20" E, a distance of 344.71 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 18, X=3,215,720.61 feet and
Y=714,200.51 feet);
THENCE S 87(degree) 19' 40" W, a distance of 349.13 feet to an aluminum disk set
for corner (Monument No. 17, X=3,215,371.86 feet and Y=714,184.23 feet);
THENCE S 02(degree) 40' 20" E, parallel with and one foot east of the east edge
of Center Street, a distance of 555.75 feet to an aluminum disk set for corner
(Monument No. 16, X=3,215,397.77 feet and Y=713,629.09 feet);
THENCE N 87(degree) 19' 40" E, parallel with and one foot north of the north
edge of a plant road named Third Street, a distance of 399.13 feet to a 5/8-inch
iron rod with aluminum disk set for corner (Monument No. 15, X=3,215,796.47 feet
and Y=713,647.69 feet);
THENCE S 02(degree) 38' 28" E, a distance of 233.50 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 14, X=3,215,807.23 feet and
Y=713,414.44 feet);
THENCE N 87(degree) 21' 32" E, a distance of 58.56 feet to a point for corner;
THENCE S 02(degree) 38' 28" E, at 210.78 feet pass a 5/8-inch iron rod with
aluminum disk set for reference (Monument No. 13, X=3,215,875.43 feet and
Y=713,206.59 feet), continuing the same course a total distance of 212.78 feet
to a point for corner;
THENCE N 87(degree) 21' 32" E, a distance of 56.07 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 12, X=3,215,931.53 feet and
Y=713,207.17 feet);
THENCE N 02(degree) 38' 28" W, a distance of 43.23 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 11, X=3,215,929.54 feet and
Y=713,250.36 feet);
6
THENCE S 87(degree) 21' 32" W, a distance of 26.00 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 10, X=3,215,903.57 and
Y=713,249.16 feet);
THENCE N 00(degree) 04' 01" E, a distance of 537.69 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 9, X=3,215,904.20 and
Y=713,786.85 feet);
THENCE N 83(degree) 24' 45" E, a distance of 214.81 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 8, X=3,216,117.59 and
Y=713,811.49 feet);
THENCE N 52(degree) 48' 48" E, a distance of 168.99 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 7, X=3,216,252.22 and
Y=713,913.63 feet);
THENCE N 01(degree)30' 38" W, a distance of 179.83 feet to an "X" cut in the
east handrail of a metal walkway for corner;
THENCE N 88(degree) 07' 20" W, at 184.39 feet pass a 5/8-inch iron rod with
aluminum disk set for reference (Monument No. 6, X=3,216,063.19 and Y=714,099.44
feet), continuing the same course a total distance of 442.63 feet to a 5/8-inch
iron rod with aluminum disk set for corner (Monument No. 5, X=3,215,805.08 feet
and Y=714,107.90 feet);
THENCE N 02(degree) 43' 37" W, a distance of 263.97 feet to a 5/8-inch iron rod
with aluminum disk set for corner (Monument No. 4, X=3,215,792.52 and
Y=714,371.57 feet);
THENCE N 87(degree) 16' 23" E, a distance of 87.68 feet to a 5/8-inch iron rod
with aluminum disk set for corner in the west edge of a plant road (Monument No.
3, X=3,215,880.10 and Y=714,375.74 feet);
THENCE N 02(degree) 43' 37" W, a distance of 133.35 feet to an aluminum disk set
for corner in the west edge of a plant road (Monument No. 2, X=3,215,873.76 and
Y=714,508.94 feet);
THENCE 70(degree)21' 47" E, a distance of 308.79 feet to a 5/8-inch iron rod set
at the base of the northerly face of a concrete wall;
THENCE N 43(degree)05' 57" W, along the northerly face of said concrete wall, a
distance of 158.72 feet to a 5/8-inch iron rod set for corner;
THENCE N 58(degree)16' 37" W, along the northerly face of said concrete wall, a
distance of 118.61 feet to a 5/8-inch iron rod set for corner;
THENCE N 64(degree)49' 09" W, along the northerly face of said concrete wall, a
distance of 210.85 feet to a 5/8-inch iron rod set for corner;
THENCE N 24(degree) 39' 30" E, at 45.72 feet pass a 5/8-inch iron rod with
aluminum disk set for reference (Monument No. 1, X=3,215,783.52 and Y=714,922.24
feet), continuing the same course a total distance of 66.16 feet to a point for
corner on the northerly edge of a bulkhead, same being the southerly waters edge
of the Houston Ship Channel;
7
THENCE in a southeasterly direction along the northerly edge of a concrete
bulkhead, same being the southerly waters edge of the Houston Ship Channel the
following courses and distances:
S 64(degree) 53' 24" E, a distance of 271.78 feet;
S 44(degree) 59' 16" E, a distance of 250.83 feet;
S 67(degree) 02' 59" E, a distance of 155.04 feet to the end of said
concrete bulkhead;
THENCE in an easterly and southeasterly direction along the southerly
waters edge of the Houston Ship Channel the following courses and
distances:
N 86(degree) 12' 39" E, a distance of 80.97 feet;
S 67(degree) 10' 23" E, a distance of 145.11 feet;
S 40(degree) 39' 22" E, a distance of 191.89 feet;
S 15(degree) 29' 08" E, a distance of 135.54 feet;
S 02(degree) 27' 21" E, a distance of 288.40 feet;
S 30(degree) 20' 53" E, a distance of 147.21 feet;
S 07(degree) 09' 56" W, a distance of 72.95 feet to a point on existing
steel pilings;
THENCE along said steel pilings, same being the southerly waters edge of
the Houston Ship Channel the following courses and distances:
S 46(degree) 40' 38" E, a distance of 105.21 feet to an angle point of said
steel pilings;
N 27(degree) 41' 15" E, a distance of 104.27 feet to an angle point of said
steel pilings;
THENCE in an easterly direction along the southerly waters edge of the Houston
Ship Channel the following courses and distances:
S 78(degree) 39' 32" E, a distance of 66.00 feet;
S 76(degree) 13' 06" E, a distance of 851.45 feet;
N 83(degree) 16' 48" E, a distance of 77.20 feet;
N 71(degree) 23' 44" E, a distance of 34.08 feet;
S 51(degree) 01' 35" E, a distance of 14.22 feet to the northeast corner of
said 181.536 acre tract, same being the northwest corner of the residue of
said Georgia-Pacific Chemicals, Inc. 525.997 acre tract;
THENCE S 12(degree) 48' 29" W, along the common line between said
Georgia-Pacific tract and said 181.536 acre tract, at 118.60 feet pass a
5/8-inch iron rod with aluminum disk set for reference (Monument No. 61,
X=3,217,922.00 feet and Y=713,472.56 feet), continuing the same course a total
distance of 375.33 feet to a 5/8-inch iron rod with aluminum disk set for corner
(Monument No. 62, X=3,217,865.08 feet and Y=713,222.23 feet);
8
THENCE S 26(degree) 22' 53" E, along said common line, a distance of 170.82 feet
to a 5/8-inch iron rod found for corner (Monument No. 63, X=3,217,940.99 feet
and Y=713,069.20 feet);
THENCE S 01(degree) 06' 08" E, along said common line, a distance of 534.12 feet
to a 5/8-inch iron rod with aluminum disk set for corner (Monument No. 64,
X=3,217,951.26 and Y=712,535.18 feet);
THENCE S 02(degree) 17' 45" E, along said common line, a distance of 676.82 feet
to a 5/8-inch iron rod with aluminum disk set for corner (Monument No. 65,
X=3,217,978.37 and Y=711,858.91 feet);
THENCE S 01(degree) 35' 39" E, along said common line, a distance of 1568.72
feet to a 5/8-inch iron rod with aluminum disk set for corner (Monument No. 66,
X=3,218,022.01 and Y=710,290.80 feet);
THENCE S 01(degree) 48' 33" E, along said common line a distance of 3305.54 feet
to a concrete monument with aluminum disk set for corner (Monument No. 67,
X=3,218,126.38 and Y=707,986.90 feet);
THENCE S 89(degree) 25' 33" W, along said common line, a distance of 1.99 feet
to a concrete monument with aluminum disk set for corner (Monument No. 68,
X=3,218,124.39 and Y=706,986.88 feet);
THENCE S 00(degree) 26' 38" E, along said common line a distance of 94.27 feet
to a concrete monument found corner (Monument No. 69, X=3,218,125.12 and
Y=706,892.62 feet);
THENCE S 03(degree) 22' 51" E, along said common line a distance of 142.19 feet
to a concrete monument found for corner (Monument No. 70, X=3,218,133.50 and
Y=706,750.68 feet);
THENCE S 24(degree)56' 32" W, along said common line a distance of 82.00 feet to
the PLACE OF BEGINNING and containing 477.1219 acres of land.
SAVE AND EXCEPT the following described tract of land;
COMMENCING at said City of Houston Monument No. 5856-1603;
THENCE N 02(degree) 07' 38" W, a distance of 6,085.09 feet to an aluminum disk
set in an existing plant road for the northeast corner and PLACE OF BEGINNING of
the herein described tract (Monument No. 23, X=3,216,708.33 feet and
Y=711,715.27 feet);
THENCE S 01(degree) 13' 42" E, a distance of 782.09 feet to an aluminum disk set
in said plant road for a southeast corner of the herein described tract
(Monument No. 24, X=3,216,725.09 and Y=710,933.36 feet);
THENCE S 89(degree) 00' 37" W, a distance of 264.09 feet to a concrete monument
with aluminum disk set for an interior corner of the herein described tract
(Monument No. 25, X=3,216,461.04 feet and Y=710,928.80 feet);
9
THENCE S 02(degree) 43' 45" E, a distance of 1485.73 feet to a concrete monument
with aluminum disk set for the most southerly southeast corner of the herein
described tract (Monument No. 26, X=3,216,531.78 and Y=709,444.75 feet);
THENCE S 86(degree) 48' 37" W, a distance of 351.13 feet to a concrete monument
with aluminum disk set for the southwest corner of the herein described tract in
the west edge of a gravel road (Monument No. 27, X=3,216,181.20 and Y=709,425.21
feet);
THENCE N 02(degree) 36' 27" W, along the west edge of said gravel road and its
northerly projection, a distance of 2116.53 feet to a concrete monument with
aluminum disk set for the most westerly northwest corner of the herein described
tract (Monument No. 28, X=3,216,084.91 and Y=711,539.55 feet);
THENCE N 83(degree) 30' 41" E, a distance of 344.41 feet to a 5/8-inch iron rod
with aluminum disk set for an interior corner of the herein described tract
(Monument No. 29, X=3,216,427.11 and Y=711,578.47 feet);
THENCE N 04(degree) 22' 22" W, a distance of 118.38 feet to a 5/8-inch iron rod
with aluminum disk set for the most northerly northwest corner of the herein
described tract in the southerly edge of an existing plant road (Monument No.
30, X=3,216,418.09 and Y=711,696.51 feet);
THENCE N 86(degree) 18' 02" E, a distance of 290.84 feet to the PLACE OF
BEGINNING and containing 21.9247 acres of land, leaving a net area of 455.1972
acres. The combined area of the above described TRACT A (22.2245 acres) and
TRACT B (455.1972 acres) is 477.4217 acres of land.
NOTE: Bearings recited above are referenced to the Texas State Plane Coordinate
System, South Central Zone, based on City of Houston Monuments No. 5856-1603 and
5856-1202.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
R.P.L.S. No. 4181
Date: April 7, 1994
Dwg. No.: EC-2036D-8001
UEE Job No.: 2036
10
EXHIBIT B-1
METES AND BOUNDS DESCRIPTION
12,2947 ACRES OF LAND LOCATED IN THE ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
BEING 12.2947 acres (535,557 square feet) of land located in the ▇▇▇▇▇▇ ▇▇▇▇▇
Survey, Abstract No. 18, ▇▇▇▇▇▇ County, Texas, same being out of that certain
447,4217 acre tract of land conveyed to the Albemarle Corporation as per an
instrument recorded under County Clerk's File No. R143010 (Film Code No.
###-##-####) of the Official Public Records of Real Property of ▇▇▇▇▇▇ County,
Texas, said 12.2947 acres tract of land being more particularly described by
metes and bounds as follows:
COMMENCING at City of Houston Monument No. 5856-1603 (X=3,216,934.19 feet and
Y=705,634.38 feet);
THENCE North 15(degree) 18' 06" West , a distance of 9,128.97 feet to a railroad
spike set for the northwest corner and PLACE OF BEGINNING of the herein
described tract (X=3,214,525.04 feet and Y=714,439.72 feet);
THENCE North 87(degree)30' 34" East , a distance of 562.70 feet to a railroad
spike set for a corner of the herein described tract;
THENCE South 86(degree)21' 18" East , a distance of 94.34 feet to a railroad
spike set for a corner of the herein described tract;
THENCE South 02(degree)20' 51" East , a distance of 206.50 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 87(degree)30' 25" East , a distance of 79.68 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 02(degree)20' 51" East , a distance of 52.20 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 87(degree)41' 11" East , a distance of 51.39 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 02(degree)30' 43" East , a distance of 425.70 feet to a concrete
nail set for a corner of the herein described tract;
THENCE South 87(degree)39' 28" West , a distance of 49.74 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 02(degree)57' 30" East , a distance of 27.82 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
1
THENCE South 87(degree)43'38" West , a distance of 30.14 feet to a 60 ▇▇▇▇▇ nail
set for a corner of the herein described tract;
THENCE South 02(degree)06' 16" East , a distance of 31.02 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 87(degree)37' 16" West , a distance of 41.81 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 02(degree)28' 12" East , a distance of 181.81 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 89(degree)09' 26" West , a distance of 43.03 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 02(degree)14' 07" East , a distance of 41.14 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE South 87(degree)51' 55" West , a distance of 428.10 feet to 1/2 inch iron
rod set for a corner of the herein described tract;
THENCE South 02(degree)09' 05" East , a distance of 72.60 feet to a `+' scribed
in concrete for a corner of the herein described tract;
THENCE South 02(degree)09' 35" East , a distance of 106.04 feet to a `+' scribed
in concrete for a corner of the herein described tract;
THENCE South 02(degree)09' 45" East , a distance of 120.98 feet to a `+' scribed
in concrete for a corner of the herein described tract;
THENCE South 14(degree)33' 35" West, a distance of 113.17 feet to a `+' scribed
in concrete for a corner of the herein described tract;
THENCE South 03(degree)03' 58" East, a distance of 126.64 feet to a1/2inch iron
rod set for a corner of the herein described tract;
THENCE South 86(degree)18' 50" West, a distance of 27.95 feet to a1/2inch iron
rod set for a corner of the herein described tract;
THENCE North 02(degree)46' 14" West, a distance of 130.12 feet to a `+' scribed
in concrete for a corner of the herein described tract;
2
THENCE North 14(degree)02' 35" East, a distance of 114.20 feet to a `+' scribed
in concrete for a corner of the herein described tract;
THENCE North 02(degree)10' 10" West, a distance of 322.62 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 18(degree)33' 02" West, a distance of 216.50 feet to a 60 ▇▇▇▇▇
nail set for a corner of the herein described tract;
THENCE North 12(degree)52' 40" West, a distance of 602.95 feet to the PLACE OF
BEGINNING, containing 12.2947 acres (535,557 square feet) of land.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Registered Professional Land Surveyor
Texas Registration No. 4218
3
EXHIBIT C TO GROUND LEASE AGREEMENT
EASEMENT AGREEMENT
This Easement Agreement is dated July 31, 1995 and is between ALBEMARLE
CORPORATION, a Virginia corporation, having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Grantor"), and MEMC PASADENA, INC., a Delaware
corporation, having an office at ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Grantee").
WHEREAS:
A. Grantor is the owner of a trace of land described on Exhibit A attached
hereto and made a part hereof ("Parcel 1"); and
B. Grantee is the lessee of a tract of land described on Exhibit A ("Parcel
2").
C. In connection with that certain Ground Lease Agreement dated July 31,
1995 by and between Grantor and Grantee, Grantor has agreed to grant to Grantee
an easement over, under and across that part of Parcel 1 described as the
"Easement" on Exhibit A (the "Easement") for the purposes described herein and
subject to the provisions hereof.
NOW THEREFORE, in consideration of $1.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
following grants, agreement, covenants and restrictions are made:
1. GRANT OF EASEMENT. Grantor hereby grants to Grantee, its successor and
assigns, as an easement appurtenant to Parcel 2, a perpetual easement over,
under and across the Easement for the purposes of gaining pedestrian and
vehicular access from public roads to Parcel 2. This Easement shall run with the
land described as Parcel 2 and shall be binding upon and inure to the benefit of
Grantee, its successors and assigns and all persons and entities claiming by,
through or under any of them.
2. GRANTOR'S USE OF EASEMENT. Grantor's use of the Easement is not
exclusive. Grantor reserves the right to make or permit any use of the Easement
that does not unreasonably interfere with Grantee's use of the Easement.
3. GRANTEE'S USE OF EASEMENT. Grantee covenants that the Easement will be
used only for the purposes described in paragraph 1 above.
4. MAINTENANCE AND REPAIR.
4.1 Grantor shall maintain and repair the Easement. If Grantee is not
already reimbursing Grantor pursuant to the Operating Agreement of even
date between Grantor and Grantee for such costs and expenses, Grantee shall
reimburse
1
Grantor for Grantee's fair share of all of the actual costs and expenses
incurred by Grantee in maintaining and repairing the Easement, including
but not limited to manpower, administration, equipment and materials. This
reimbursement shall be Grantee's fair share of such actual cost to Grantor
for such costs and expenses calculated in accordance with Grantor's then
current internal Pasadena Plant accounting practices and procedures
("Reimbursable Costs"). Grantor and Grantee will use their best efforts to
reach agreement on the calculation of Grantee's fair share of the costs and
expenses. The application of such accounting practices shall not favor
Grantor or Grantee. Any charge for salaried and hourly employees used by
Grantor in maintenance or repair of the Easement shall include Grantor's
expenditures or accruals for all of Grantor's costs and expenses associated
with its employees, including, but not limited to, benefit and pension
programs, and for taxes, workers' compensation insurance, vacations,
holidays, and unavoidable absences. When employees are used on a part-time
basis to perform maintenance and repair, charges for their expenses shall
be apportioned according to the time spent. In the event Grantor and
Grantee are unable after reasonable effort to reach agreement on Grantee's
fair share of the cost and expenses, then either Grantor or Grantee may
submit the matter to arbitration in the same manner as set forth in Section
28.04 of the Operating Agreement.
4.2 Grantor shall submit to Grantee quarterly (or monthly at Grantor's
option) its invoice for Grantee's fair share of the costs and expenses
outlined in Section 4.1 during the prior quarter (month). Such invoice
shall be due and payable without discount ten (10) days after receipt of
the invoice.
Invoices shall be faxed to:
MEMC Pasadena, Inc.
c/o MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: MEMC Pasadena Accountant (▇▇▇▇ Bouquet)
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Tel.: ▇▇▇-▇▇▇-▇▇▇▇
Payments will be made to the address specified on the invoice. Any
delinquent or overdue invoices shall be subject to a finance charge of one
percent (1%) per month, or the maximum rate allowed by law, whichever is
less.
4.3 Grantor shall maintain good and sufficient records to support the
costs and expenses invoiced hereunder. All records maintained by Grantor
relating to the costs and expenses incurred pursuant to this section shall
be made available for review by Grantee's representative during normal
hours of business if Grantee has a reasonable basis to question the
accuracy of the costs and
2
expenses invoiced by Grantor hereunder. Grantee may request, and Grantor
shall provide, detail information supporting, and explanation of, specific
charges at any time.
4.4 In the event that there is a disagreement between the parties on
any item or items included in an invoice or as revealed in a review as
provided for in Section 4.3, the parties shall meet and in good faith use
their reasonable efforts to resolve the disagreement as promptly as
possible and prior to the issuance of the next invoice. Payments of
invoices shall not be delayed in whole or in part, however, because of any
such agreement between the parties and proper adjustments shall be made
when the disagreement is resolved. In no event shall Grantee be entitled
to, nor will it set off any claims Grantee or its affiliates might have
against Grantor against Grantee's fair share of the costs and expenses
invoiced pursuant to this Section.
5. WARRANTIES OF TITLE. Grantor warrants that it has good title to the
Easement, subject only to those liens, mortgage, charges, pledges, easements,
encumbrances and imperfections of record, and that the grant of this easement
has been duly authorized by all necessary corporate action.
6. CONSTRUCTION. The rule of strict construction does not apply to this
grant of easement. This grant shall be given a reasonable construction so that
the intention of the parties to confer a commercially usable right of access to
Parcel 2 to Grantee, its successor and assigns, is carried out.
7. NOTICES. All notices and other communications in connection with this
Agreement shall be in writing and any notice or communication hereunder shall be
deemed delivered to the address thereof on the earlier of: (a) three days after
deposit in any main or branch United States Post Office, certified or registered
mail, postage prepaid, (b) one day after deposit with any nationally recognized
courier server, with charges prepaid, or (c) when hand delivered, in any case
address to the parties, respectively, as follows:
For notices to Grantor:
Albemarle Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Vice President, Manufacturing
3
with a copy to:
Albemarle Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department
For notices to Grantee:
MEMC Pasadena, Inc.
c/o MEMC Electronic Materials, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇
▇▇. ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President-MEMC Pasadena, Inc.
By notice complying with the requirements of this paragraph, each party
shall have the right to change the address for all future notices and other
communications to such party; provided, however, that no notice of change of
address or addresses shall be effective until actually received.
8. RELEASE OF EASEMENT. Grantee may herein terminate this instrument by
recording a release in recordable form with directions for delivery of same to
Grantor, its successors or assigns, at Grantor's past address given pursuant
hereto, whereupon all rights duties and liabilities hereby created shall
terminate. This Easement shall automatically terminate in the event of
termination or expiration of the Ground Lease of even date between Grantor and
Grantee, whereupon Grantor may record such termination or expiration as of
public record.
9. GOVERNING LAW; COMPLETE AGREEMENT. This Agreement is entered into and
shall be construed and governed in all respects under the laws of the State of
Texas. This Agreement sets forth the entire agreement of the parties with
respect to the subject matter hereof.
10. GUARANTY. MEMC Electronic Materials, Inc., parent company of Grantee,
absolutely, unconditionally and irrevocably guarantees the obligations of
Grantee, its successors and assigns, pursuant to this Agreement, and as such, is
a contracting party to this Agreement.
11. INSOLVENCY. If Grantee or MEMC Electronic Materials, Inc. makes an
assignment for the benefits of its creditor(s), or attachment or garnishment
proceedings are commenced, or a receiver is appointed over any property of
Grantee or MEMC Electronic Materials, Inc. is appointed over any property of
Grantee or MEMC Electronic Materials, Inc., or proceedings are instituted by or
4
against Grantee or MEMC Electronic Materials, inc. under the bankruptcy Code,
then Grantor may terminate this Agreement effective upon the date of such
assignment, commencement, appointment of institution or proceedings.
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
instrument to be executed by their proper officers duly authorized to execute
the same, as of the day and year first above written.
GRANTOR: GRANTEE:
ALBEMARLE CORPORATION MEMC PASADENA, INC.
By: By:
Its: Its:
Sworn and subscribed before me Sworn and subscribed before me
this 31st day of July, 1995 this31st day of July, 1995
----------------------------------- -----------------------------------
Notary Public Notary Public
My commission expires: My commission expires:
5
EXHIBIT A
This Exhibit A shall be substituted for promptly following Closing by a map
to be prepared by Grantor depicting Parcel 1 and Parcel 2.
Exhibit A will show that an approximately 30(degree) wide easement (or such
normally associated with the width of N. South Street) is granted by Grantor to
Grantee along N. South Street through Parcel 1 (which is Grantor's Pasadena
Plant site) from the point N. South Street ceases to be a public road until the
point where N. South Street intersects the closest point of Parcel 2 (which is
the land as defined in the Ground Lease Agreement). In the event N. South Street
ends prior to intersecting Parcel 2, then the easement shall continue in the
most direct route to the closest point of Parcel 2.
6
EXHIBIT D TO GROUND LEASE AGREEMENT
EASEMENT AGREEMENT
This Easement Agreement is dated , 1995 and is between MEMC
Pasadena, Inc. or Albemarle Corporation (as the case may be), a
corporation, having an office at ("Grantor"), and
MEMC Pasadena Inc. or Albemarle Corporation (as the case may be), a
corporation, having an office at ("Grantee).
WHEREAS:
A. Grantor is the owner of a tract of land described on Exhibit A attached
hereto and made a part hereof ("Parcel A"); and
B. Grantee is the lessee of a tract of land described on Exhibit A ("Parcel
B"); and
C. In connection with that certain Ground Lease Agreement dated July 31,
1995 by and between Grantor and Grantee, Grantor has agreed to grant to Grantee
a legally valid, binding and recordable perpetual easement whereby the Grantor
provides one or more easements to Grantee over, across, upon, in or under, as
the case may be, a certain portion or potions of Parcel A to be agreed upon in
good faith between the parties to enable Grantor to obtain, install, operate,
maintain, repair and replace utilities, including, without limitation,
electricity, gas, telephone, sewage and water from he applicable producers to
service Parcel B, and to repair fences, it being the intent that the location of
such easements shall be in the most convenient place for the provision of such
utilities to the extent reasonably practicable, while providing the least
inconvenience to Grantor.
NOW THEREFORE, in consideration of $1.00 and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
following grants, agreement, covenants and restrictions are made:
1. GRANT OF EASEMENT. Grantor hereby grants to Grantee, its successors and
assigns, as an easement appurtenant to Parcel 2, a perpetual easement over,
under and across the Easement for the purposes of
-----------------------------------------------------
-----------------------------------------------------------------------------
______________________________________ ("Easement"). This Easement shall run
with the land described as Parcel 2 and shall be binding upon and inure to the
benefit of Grantee, its successors and assigns and all persons and entities
claiming by, through or under any of them.
2. GRANTOR'S USE OF EASEMENT. Grantor's use of the Easement is not
exclusive. Grantor reserves the right to make or permit any use of the Easement
that does not unreasonably interfere with Grantee's use of the Easement.
3. GRANTEE'S USE OF EASEMENT. Grantee covenants that the Easement will be
used only for the purposes described in paragraph 1 above.
4. MAINTENANCE AND REPAIR.
4.1 Grantor shall maintain and repair the Easement. Grantee shall reimburse
Grantor for Grantee's fair share of all of the actual costs and expenses
incurred by Grantee in maintaining and repairing the Easement, including,
but not limited to manpower, administration, equipment and materials. This
reimbursement shall be Grantee's fair share of such additional cost to
Grantor for such costs and expenses calculated in accordance with Grantor's
then current internal Pasadena Plant or MEMC Plant accounting practices and
procedures ("Reimbursable Costs"). Grantor and Grantee will use their best
efforts to reach agreement on the calculation of Grantee's fair share of
the costs and expenses. The application of such accounting practices shall
not favor Grantor or Grantee. Any charge for salaried and hourly employees
used by Grantor in maintenance or repair of the Easement shall include
Grantor's expenditures or accruals for all of Grantor's costs and expenses
associated with its employees, including, but not limited to, benefit and
pension programs, and for taxes, workers' compensation insurance,
vacations, holidays, and unavoidable absences. When employees are used on a
part-time basis to perform maintenance and repair, charges for their
expenses shall be apportioned according to the time spent. In the event
Grantor and Grantee are unable after reasonable effort to reach agreement
on Grantee's fair share of the cost and expenses, then either Grantor or
Grantee may submit the matter to arbitration in the same manner as set
forth in Section 28.04 of the Operating Agreement.
4.2 Grantor shall submit to Grantee quarterly (or monthly at Grantor's
option) its invoice for Grantee's fair share of the costs and expenses
outlined in Section 4.1 during the prior quarter (month). Such invoice
shall be due and payable without discount ten (10) days after receipt of
the invoice.
Invoices shall be faxed to:
---------------------------
---------------------------
---------------------------
Attention: Accounts Payable
Payments will be made to the address specified on the invoice. Any
delinquent or overdue invoices shall be subject to a finance charge of one
percent (1%) per month, or the maximum rate allowed by law, whichever is
less.
2
4.3 Grantor shall maintain good and sufficient records to support the costs
and expenses invoiced hereunder. All records maintained by Grantor relating
to the costs and expenses incurred pursuant to this section shall be made
available for review by Grantee's representative during normal hours of
business if Grantee has a reasonable basis to question the accuracy of the
costs and expenses invoiced by Grantor hereunder. Grantee may request, and
Grantor shall provide, detail information supporting, and explanation of,
specific charges at any time.
4.4 In the event that there is a disagreement between the parties on any
item or items included in an invoice or as revealed in a review as provided
for n Section 4.3, the parties shall meet and in good faith use their
reasonable efforts to resolve the disagreement as promptly as possible and
prior to the issuance of the next invoice. Payments of invoices shall not
be delayed in whole or in part, however, because of any such agreement
between the parties and proper adjustments shall be made when the
disagreement is resolved. In no event shall Grantee be entitled to, nor
will it set off any claims Grantee or its affiliates might have against
Grantor against Grantee's fair share of the costs and expenses invoiced
pursuant to this Section.
5. WARRANTIES OF TITLE. Grantor warrants that it has good title to the
Easement, subject only to those liens, mortgage, charges, pledges, easements,
encumbrances and imperfections of record, and that the grant of this easement
has been duly authorized by all necessary corporate action.
6. CONSTRUCTION. The rule of strict construction does not apply to this
grant of easement. This grant shall be given a reasonable construction so that
the intention of the parties to confer a commercial usable easement for Grantee,
its successors and assigns, is carried out.
7. NOTICES. All notices and other communications in connection with this
Agreement shall be in writing and any notice or communication hereunder shall be
deemed delivered to the addresses thereof on the earlier of: (a) three days
after deposit in any main or branch United States Post Office, certified or
registered mail, postage prepaid, (b) one day after deposit with any nationally
recognized courier server, with charges prepaid, or (c) when hand delivered, in
any case address to the parties, respectively, as follows:
For notices to Grantor:
---------------------------
---------------------------
---------------------------
Attention:
3
with a copy to:
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Attention:
For Notices to Grantee:
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with a copy to:
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Attention:
By notice complying with the requirements of this paragraph, each party
shall have the right to change the address for all future notices and other
communications to such party; provided, however, that no notice of change of
address or addresses shall be effective until actually received.
8. RELEASE OF EASEMENT. Grantee may herein terminate this instrument by
recording a release in recordable form with directions for delivery of same to
Grantor, its successors or assigns, at Grantor's last address given pursuant
hereto, whereupon all rights, duties and liabilities hereby created shall
terminate.
9. GOVERNING LAW; COMPLETE AGREEMENT. This Agreement is entered into and
shall be construed and governed in all respects under the laws of the State of
Texas. This Agreement sets forth the entire agreement of the parties with
respect to the subject matter hereof.
10. INSOLVENCY. If Grantee makes an assignment for the benefit of its
creditor(s), or attachment or garnishment proceedings are commenced, or a
receiver is appointed over any property of Grantee, or proceedings are
instituted by or against Grantee hereto under the bankruptcy code, then Grantor
may terminate this Agreement effective upon the date of such assignment,
commencement, appointment or institution of proceedings.
IN WITNESS WHEREOF, the parties hereto have executed or have caused this
instrument to be executed by their proper officers duly authorized to execute
the same, as of the day and year first above written.
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GRANTOR: GRANTEE:
ALBEMARLE CORPORATION MEMC PASADENA, INC.
By: By:
Its: Its:
Subscribed before me this st day Subscribed before me this st day
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of , of ,
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Notary Public Notary Public
My commission expires: My commission expires:
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EXHIBIT A
To be attached. Map of Pasadena Plant Setting Forth Outline of Electronic
Materials Facility and Easement.