EXHIBIT 10.3
LEASE OF REAL PROPERTY
THIS LEASE is made and entered into effective the 1st day of
February, 1999, by and between XXXXXX XXXXX, owner of the demised premises
("Lessor"), and RB RECYCLING, INC., an Oregon corporation ("Lessee"), acting
through its duly authorized officer.
1. PREMISES. The premises leased to Lessee, together with
appurtenances, are herein referred to as the "demised premises" and are situated
in the City of Portland, County of Multnomah, State of Oregon, the legal
description hereof being as follows:
Lots 11 through 18 and Lots 27 through 00, Xxxxx 0, Xxxxxxx
Xxxxxxxx, Xxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxx. Lots 11 through
18, commonly known as 000 X. Xxxxxx and also known as 0000 X.
Xxxxxxxxx, Xxxxxxxx, Xxxxxx, and Lots 27 through 36 being
located on X. Xxxx Street, Portland, Multnomah County, Oregon
(all of said described property being contiguous and being
45,000 square feet (+/-).
2. TERM. The primary term of this lease shall be for five (5) years
commencing on the 1st day of February, 1999, and ending on the 31st day of
January, 2004, subject to one consecutive five (5) year renewal term (the
"Renewal Term") thereafter at Lessee's option as provided for herein.
3. RENT.
(a) PRIMARY TERM. Lessee agrees to pay the Lessor during the
primary term of this Lease, as rent for the use and occupancy of the
demised premises, the following (which amounts consist of first year
rental of $3,200 increased by five percent (5%) per year rounded up to
the nearest dollar):
(i) During the first year of the primary term of this lease
monthly rent shall be the sum of $3,200 per month.
(ii) During the second year of the primary term of this lease
monthly rent shall be the sum of $3,360 per month.
(iii) During the third year of the primary term of this lease
monthly rent shall be the sum of $3,528 per month.
(iv) During the fourth year of the primary term of this lease
monthly rent shall be the sum of $3,705 per month.
(v) During the fifth year of the primary term of this lease
monthly rent shall be the sum of $3,890 per month.
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Rent shall be payable monthly in advance, on the first day of each
calendar month throughout the primary term of this Lease, and during the Renewal
Term. All rent shall be paid in lawful money of the United States and without
prior notice or demand.
(b) RENEWAL TERM. Upon election of the Lessee to exercise its
option to renew this Lease for the Renewal Term, as set forth in Paragraph 35
below, the monthly rent for each month during the Renewal Term shall be as
follows:
(i) During the first year of the Renewal Term of this lease
monthly rent shall be the sum of $4,085 per month.
(ii) During the second year of the Renewal Term of this lease
monthly rent shall be the sum of $4,289 per month.
(iii) During the third year of the Renewal Term of this lease
monthly rent shall be the sum of $4,503 per month.
(iv) During the fourth year of the Renewal Term of this lease
monthly rent shall be the sum of $4,728 per month.
(v) During the fifth year of the Renewal Term of this lease
monthly rent shall be the sum of $4,965 per month.
4. LESSEE'S ACCEPTANCE OF LEASE. Lessee accepts said letting and agrees
to pay to the order of the Lessor the rentals above stated for the primary term
of this lease and for the Renewal Term, in advance, at the time and in the
manner aforesaid.
Lessee hereby acknowledges that the Lessor has not made and does not
make any representations as to the physical condition of the leased premises.
Lessee further acknowledges that it has made an independent inspection
of the physical condition of same and all parts thereof and accepts said
premises "AS IS."
5. TAXES.
(a) In addition to the rentals above provided, Lessee shall during
any lease term, pay and discharge upon, prior to the delinquency
date thereof, all real and personal property taxes levied by any
public agency authorized to levy such taxes, including all existing
assessments against the property which are made for the purpose of
paying for improvements, such as, without limitation, street sewers
and water pipes. Lessor shall provide Lessee with the tax statements
for all real property taxes assessed against the demised premises
and Lessee shall pay such taxes directly, providing Lessor with a
copy of the submitted tax statement and check as proof of payment.
(b) All such general taxes and existing L.I.D. assessments on the
demised premises from the first year shall be prorated between
Lessor and Lessee from the commencement of the term of this lease.
Such taxes For the last year of the
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primary term (or the Renewal Term) of this lease shall be prorated
between Lessor and Lessee through the last day of the primary term
(or the Renewal Term) of this lease. All such taxes shall be
prorated on the basis of a tax fiscal year commencing July 1 and
ending July 30.
(c) If Lessee shall, in good faith, contest such tax on the demised
premises, then Lessee may, at its expense, defend itself and Lessor
against the same and shall pay and satisfy any judgment, including
all penalties and interest that may be rendered thereon; provided,
however, Lessor may require Lessee to furnish to Lessor a surety
bond or other security satisfactory to Lessor in an amount equal to
such contested tax, indemnifying Lessor against liability for such
tax and holding the demised premises free from the effect of such
tax.
6. INSURANCE.
(A) LIABILITY INSURANCE. Lessee shall, at all times during any term
of this lease, carry and maintain a policy of broad form
comprehensive public liability insurance policies in form and with
an insurer licensed to do business in the State of Oregon, by the
terms of which Lessor and Lessee are named as insureds and shall be
indemnified against liability for any damage to the property or
bodily injury, including death, of any person entering on or using
the demised premises, or any structure thereon, or any part thereof.
Such insurance policy or policies shall be maintained in the minimum
coverage amounts of Five Hundred Thousand Dollars ($500,000.00) for
bodily injury to, or death of, one person, and One Million Dollars
($1,000,000.00) for bodily injury or death in any one occurrence.
Such insurance shall be stated to be primary and noncontributing
with any other insurance available for the protection of Lessor, and
shall contain a provision that Lessor, although named as an insured,
shall nevertheless be entitled to recover under said policy for any
loss, injury or damages to Lessor, his agents and employees, or to
the property of said persons, by result of the negligence of Lessee.
(B) CERTIFICATES OF INSURANCE. All policies of insurance procured
and maintained by Lessee hereunder shall be issued in the names of
Lessor and Lessee, and for the mutual and joint benefit and
protection of both parties. Executed copies of such policy or
policies of insurance or certificate thereof, shall be delivered to
Lessor, and all such policies shall contain a provision that not
less than ten (10) days' written notice shall be given to Lessor
prior to the cancellation, reduction of coverage, or any material
change in such policy.
7. UTILITIES. Lessee shall pay all charges for water, sewage, gas,
electricity, telephone, trash collection, and other like services used by Lessee
or any licensee, agent or other person occupying or using the demised premises.
8. PAYMENTS AND NOTICES. All rents and other sums payable by Lessee
to Lessor hereunder shall be paid to Lessor at the address herein, or at such
other place as Lessor may hereafter designate in writing and deliver to Lessee.
Any notice to be given by either of the parties
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hereto to the other hereunder may be delivered in person to Lessor or to Lessee
or may be deposited in the United States mail duly registered or certified, with
postage prepaid, and addressed to the party for whom intended, as follows:
If to Lessee: If to Lessor:
RB Recycling, Inc. Xxxxxx Xxxxx
8051 North Borthwick 0000 XX Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxx 00000 Xxxxxxxxx, Xxxxxx 00000
Attn: Plant Manager
With copy to:
RB Rubber Products, Inc.
000 X 00xx Xxxxxx
XxXxxxxxxxx, Xxxxxx 00000
Attn: Xxxx Xxxxxx
or at such other address as either of the parties hereto may thereafter
designate in writing. Service of any such written notice shall be deemed
complete at the time of such personal delivery or upon five days after the
mailing thereof as hereinabove provided.
9. ENTIRE AGREEMENT. This lease contains the entire agreement of the
parties hereto with respect to the matters covered hereby, and no other
agreement, statement, or promise made by any party hereto, or to any employee,
officer, or agent of any party hereto, which is not contained herein, shall be
binding or valid.
10. USE OF PREMISES. It is Lessee's intention to use or cause the
demised premises to be used for storage and processing of waste products and
anything convenient or desirable in connection therewith, including not by
limitation storage, grinding, and processing of tires, woody wastes, and related
or similar items, and for uses normally incident thereto. Lessee may use the
premises for any other lawful business as Lessee may from time to time deem
advisable. Lessee shall not use the premises in such a manner as to knowingly
violate any law, rule, ordinance, or regulation of any governmental body having
jurisdiction thereof.
11. UNLAWFUL USE PROHIBITED. Lessee shall not use the demised
premises for any unlawful purpose.
12. COVENANT OF QUIET ENJOYMENT. At all times when Lessee is not in
default under this lease and during any term of this lease, Lessee's quiet and
peaceable enjoyment of the premises shall not be disturbed or interfered with by
Lessor or any person claiming by, through, or under Lessor.
13. LESSOR'S NON-LIABILITY. Lessor shall not be liable for any loss,
damage or injury of any kind whatsoever to any person or property arising from
any use of the demised premises, or any part thereof, or caused by any defect in
any building, structure, or other improvement thereon or in any equipment or
other facility therein; or caused by or arising from any act or omission of
Lessee, or of its agent, employees, licensees, or invitees, or by or from
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any accident on said premises or any fire or other casualty thereon, or
occasioned by the failure of Lessee to maintain said premises and improvements
thereto in safe condition, or arising from any surface, subsurface, or soil
condition, or from any other cause whatsoever; and Lessee, as a material part of
the consideration of this lease, hereby waives on its behalf, all claims and
demands against Lessor for any such loss, damage, or injury of Lessee and hereby
agrees to indemnify and hold Lessor entirely free and harmless from all
liability for any such loss, damage, or injury to other persons and from all
costs and expenses arising therefrom.
14. MAINTENANCE AND REPAIR. Throughout the term of this lease,
Lessee, at its sole cost and expense, shall at all times, keep and maintain the
demised premises and each part thereof in as good repair and in as safe order
and condition as at the date of commencement of the term of this lease. Lessee
thereafter assumes full responsibility; for the condition, operation, repair
maintenance, during any term of this lease, of the premises, except structural
failures not attributable to Lessee's use of premises.
15. CONDEMNATION.
(a) If title to all or part of the demised premises is taken for any
public or quasi-public use under any statute, or if the demised
premises are taken by reason of an order for immediate possession or
by right or eminent domain, or by private purchase in lieu of
eminent domain or if title to so much of the demised premises is so
taken or if the demised premises are taken by reason of an order for
immediate possession, and a reasonable amount of reconstruction of
the demised premises will not result in the demised premises being a
practical improvement and reasonably suitable for Lessee's in
Lessee's sole judgment continued occupancy for the uses and purposes
for which the demised premises are leased, then in either event this
lease shall terminate on the date that possession of the demised
premises or part thereof is taken.
(b) If any part of the demised premises shall be so taken and the
remaining part is, in Lessee's sole judgment, reasonably suitable
for Lessee's continued occupancy for the purposes and uses for which
the premises are leased, this lease shall, as to the part so taken,
terminate as of the date that possession of such part is taken.
(c) In the event that the demised premises or any buildings or other
improvements thereon or any portion of any thereof shall during the
term of this lease be taken or damaged by eminent domain or be taken
by conveyance by the parties hereto to avoid or compromise any
proceeding in eminent domain, the total consideration paid in
connection with such taking, and damage (including both amounts paid
for property taken, loss of good will, and severance or other damage
to such portion of the demised premises or buildings or improvements
thereon as shall not be taken) shall be equitably apportioned
between the parties as their interests may appear, taking into
consideration the number of years remaining in the Renewal Term of
this lease at the date of taking or damage, and the extent of
severance or other damage to equipment and improvement of Lessee and
Lessor.
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16. RIGHT OF ASSIGNMENT. Lessee may not assign, transfer, pledge,
hypothecate, surrender or dispose of this lease, or any interest herein, or
permit any other person or person whomsoever to occupy the demised premised
without the written consent of the Lessor being first obtained in writing, which
consent shall not be unreasonably withheld; that in the event Lessor agrees to
such assignment, it shall be on the condition that Lessee shall continue to be
personally liable for the performance of all the condition as set out in this
lease; this lease is personal to said Lessee's interest, in whole or in part,
cannot be sold, assigned, transferred, seized, or taken by operation of law, or
under or by virtue of any execution or legal process, attachment or proceedings
instituted against the Lessee, or under or by virtue of any bankruptcy or
insolvency proceedings had in regard to the Lessee, or in any other manner,
except as mentioned above.
17. MODIFICATION OF LEASE. This lease contains the entire agreement
between the parties, and any executory agreement hereafter shall be ineffective
to change, modify, or discharge it in whole or in part, unless such executory
agreement is in writing and signed by the party against whom enforcement of the
change, modification, or discharge is sought.
18. SURRENDER. At the expiration of any term of this lease, unless
renewed as provided for herein, Lessee agrees to quit and surrender possession
of the demised premises to Lessor in as good condition as at the commencement
thereof, excepting reasonable wear and tear, damage by acts of God and the
elements, and the perils actually covered by and compensated for pursuant to a
standard for insurance policy.
19. ARBITRATION. ANY CONTROVERSY WHICH SHALL ALL ARISE BETWEEN
LESSOR AND LESSEE REGARDING THE RIGHTS, DUTIES OR LIABILITIES HEREUNDER OF
EITHER PARTY SHALL BE SETTLED BY ARBITRATION. SUCH ARBITRATION SHALL BE BEFORE
ONE DISINTERESTED ARBITRATOR IF ONE CAN BE AGREED UPON, OTHERWISE BEFORE THREE
DISINTERESTED ARBITRATORS, ONE NAMED BY THE LESSOR, ONE BY THE LESSEE, AND ONE
BY THE TWO THUS CH0SEN. THE ARBITRATOR OR ARBITRATORS SHALL DETERMINE THE
CONTROVERSY IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED AS APPLIED TO THE FACTS FOUND BY HIM OR THEM.
20. ATTORNEY'S FEES. In the event that either party hereto shall
commence any legal action or proceeding including an action for declaratory
relief or a request for arbitration, against the other by reason of the alleged
failure of the other to perform or keep any term, covenant or condition of this
lease by him to be performed or kept, the party prevailing in said action or
proceeding shall be entitled to recover, in addition to his court costs, a
reasonable attorney's fee to be fixed by the arbitrator(s) or court, and such
recovery shall include court costs and attorney's fees on appeal. As used
herein, "the prevailing party" means the party in whose favor final judgment is
rendered.
21. ALTERATION, FIXTURES AND IMPROVEMENTS. Save and except as to
alterations and improvements to Lessee's existing tire and woody waste
processing and shop facilities, Lessee shall not alter or improve the demised
premises without the prior written consent of Lessor to do so (which consent
will not be unreasonably withheld); no such
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alterations, additions, improvements and fixtures, including but not limited to
trade fixtures, shall become a part of the demised premises; trade fixtures as
used herein, shall include, but not be limited to, electrical controls and
mechanical equipment used in the processing of waste materials; Lessee shall be
permitted to remove all such additions, improvements, and fixtures from the
leased premises at any time during the terms hereof or within ninety (90) days
after expiration or sooner termination of his lease, and Lessor hereby waives
any landlord's lien or other lien, security interest, or right which may be
claimed as security, or to possession or ownership thereof, provided, however
that such removal can be effected without injury to the leased premises and
provided further that any such fixture shall not have become, by the manner in
which it is affixed, an integral part of the leased premises made or placed in
or on said premises shall on expiration or sooner termination of this lease
belong to Lessor without compensation to Lessee; provided, however, that Lessor
shall have the option to be exercised on expiration or sooner termination of
this lease to require Lessee to remove any or all such additions, improvements
or fixtures. Any alterations, installation of fixtures or improvements to the
demised premises shall comply with the requirements of all federal, state and
municipal authorities pertaining thereto and shall not cause any increase in the
rental provided to be paid by Lessee hereunder.
22. FIXTURES AND EQUIPMENT. Lessee agrees that there are fixtures
and equipment in the buildings on the demised premises existing at the date of
commencement of this lease, which have always been the property solely of
Lessor, including the air compressor and pump. The Lessee has the right to use
said fixtures and equipment. Lessee accepts said fixtures and equipment in their
present condition and without any warranties or representations by Lessor as to
their present condition, and Lessee hereby agrees to maintain said fixtures and
equipment and make whatever repairs are reasonably necessary for their continued
use, without any expense to Lessor, and at the termination of this lease, said
equipment and fixtures shall be returned to the Lessor in as good condition as
when received by Lessee, natural wear and depreciation being excepted. Lessee is
hereby given the right to replace any such equipment which shall wear out or
cease to function, provided, however, that said replacing equipment shall be of
an equal value to the replaced equipment as at the time of replacement, and
shall thereafter be in place and stead of the replaced equipment, and the right
and title thereto shall belong to the Lessor under this lease. Lessee is hereby
given the right to change the location of said fixtures and equipment, provided
that said moving does not damage the demised premises, and provided further that
at the termination of this lease, or any extensions hereof, that said fixtures
and equipment will be returned to the original location thereof.
23. FORCE MAJEURE. If either party hereto shall be delayed or
prevented from the performance of any act required hereunder by reason of acts
of God, strikes, lockouts, labor troubles, inability to procure materials,
restrictive governmental laws or regulations or other cause without fault and
beyond the control of the party obligated (financial inability excepted),
performance of such acts shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a period
equivalent to the period of such delay; provided, however, nothing in this
paragraph 23contained shall excuse Lessee from the prompt payment of any rental
or other charge required of Lessee hereunder except as may be expressly provided
elsewhere in :this lease.
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24. CONDITIONAL LIMITATIONS. Each covenant and agreement of Lessor
and Lessee shall be a condition to the performance of the other's obligation
hereunder, and breach by any party thereof, uncured as provided for herein,
shall be in default.
25. LIENS AND CLAIMS.
(a) Lessee shall not cause to be levied against the demised
premises, or any part thereof, any mechanic's, materialmen's
contractor's, or subcontractor's liens arising from any claim
for damage growing out of the work of any construction,
repair, restoration, replacement, or improvement, done at the
request of Lessee, and Lessee shall pay or cause to be paid
all of said liens, claims, or demands before any action is
brought to enforce the same against the demised premises;
Lessee agrees to defend, indemnify, and hold Lessor and said
premises free and harmless from all liability for any and all
such liens, claims, and demands, together with reasonable
attorney's fees and all costs and expenses in connection
therewith.
(b) Notwithstanding anything to the contrary hereinabove
contained in this Paragraph 25, if Lessee shall, in good
faith, contest the validity of any such lien, claim, or
demand, then Lessee shall, at its expenses, defend itself and
Lessor against the same and shall pay and satisfy any adverse
judgment that may be rendered thereon before the enforcement
thereof against Lessor or the leased premises.
26. LESSOR PAYING CLAIMS. In the event Lessee shall be otherwise
required by this lease to do so, and after thirty (30) days written notice
thereof as provided for herein, Lessee shall fail to pay and discharge or cause
to be paid and discharged, when due and payable, any tax, assessment, or other
charge upon or in connection with the leased premises, or any lien or claim for
labor or materials employed or used in, or any claim for damages arising out of
the construction, repair, restoration, replacement, maintenance and use of said
premises, and the improvements thereon, or any judgment or any contested lien or
claim, or any insurance premium expense in connection with said land and
improvements, or any or other claim, charge, or demand which Lessee has agreed
to pay, or cause to be paid under the covenants and conditions of this lease,
and if Lessee, after thirty (30) days' written notice from Lessor to do so,
shall fail to pay and discharge the same, then Lessor may, at his option, pay
any such tax, assessment, insurance premium or expense, lien claim, charge or
demand, or settle or discharge any action therefor, or judgment thereon, and all
costs, expenses, and other sums incurred or paid by Lessor in connection with
any of the foregoing shall be paid by Lessee to Lessor upon demand, together
with interest thereon at the rate of 10% per annum from the date paid, and any
default in such repayment shall constitute a breach of the covenants and
conditions of this lease.
27. DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this lease by Lessee:
(a) The vacation or abandonment of the demised premises by
Lessee for a period of sixty (60) continuous days.
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(b) The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and
when due.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions, or provisions of this lease to be
observed or performed by Lessee, other than described in
subparagraph (b) above, where such failure shall continue for
a period of 30 days after written notice thereof from Lessor
to Lessee; provided, however, that if the nature of Lessee's
default is such that more than 30 days are reasonably
required for its cure, then Lessee shall not be deemed to be
in default if Lessee shall commence such cure within said 30
day period and thereafter diligently prosecute such cure to
completion.
28. REMEDIES OF LESSOR. In the event of any breach of this lease by
Lessee, and failure to cure as provided for herein, then Lessor, after ten (10)
days written notice to Lessee besides other rights or remedies Lessor may have,
Lessor shall have the immediate right of re-entry and may remove all persons and
property from the demised premises. Such property may be removed and stored in a
public warehouse or elsewhere at the cost of, and for the account of Lessee.
Should Lessor elect to re-enter, as herein provided, or should he take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, she may either terminate this lease, or may from time to time, without
terminating this lease, re-let said premises, or any part thereof, for such term
or terms (which may be for a term extending beyond the term of this lease) and
at such fair market rental or rentals and upon such other reasonable terms and
conditions as Lessor may deem advisable with the right to make alterations and
repairs to said premises. Upon each such re-letting (a) Lessee shall be
immediately liable to Lessor, in addition to indebtedness other than rent due
hereunder, for the cost and expenses of such re-letting and of such alterations
and repairs incurred by Lessor, and the amount if any, by which the rent
reserved in this lease for the period of such re-letting (up to but not beyond
the remaining term of any then current renewal term of this lease) exceeds the
amount agreed to be paid as rent for the demised premises for such period on
such re-letting, as such becomes due; or (b) at the option of Lessor, rents
received by Lessor from such re-letting shall be applied as follows; first, to
the payment of any indebtedness other than rent due hereunder from Lessee to
Lessor; second, to the payment of any costs and expenses of such re-letting and
of such alterations and repairs; third, to the payment of rent due and unpaid
hereunder; and the residue, if any, shall be held by Lessor and applied in
payment of future rent as the same may become due and payable hereunder. If
Lessee has been credited with any rent to be received by such re-letting under
option (a) and such rent shall not be promptly paid to Lessor by the new tenant,
or if such rentals received from such re-letting under option (b) during any
month be less than that to be paid during that month by Lessee hereunder, Lessee
shall pay such deficiency to Lessor. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of said premised by Lessor
shall be construed as an election on Lessor's part to terminate this lease
unless a written notice of such intention be given to Lessee or unless the
termination thereof decreed by a court of competent jurisdiction.
Notwithstanding any such re-letting without termination, Lessor may at any time
thereafter elect to terminate this lease for such uncured previous breach.
Should Lessor at any time terminate this lease for any uncured breach, in
addition to any other remedy they may have, they may recover from Lessee all
damages they may incur by reason of such breach, including the cost of damages
they may incur by reason of such breach, including the cost of recovering the
demised premises, and including
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the excess, if any, of the amount of rent and charges equivalent to rent
reserved in this lease for the remainder of the then current premises for the
remainder of such term, all of which amounts shall be due and payable from
Lessee to Lessor as they accrue.
29. HOLDING OVER. Any holding over by Lessee after expiration of any
term hereof, shall be construed as a tenancy from month to month, subject to all
the conditions of this lease and at the rental rate effective as of the last
month of the term expired. Either party may terminate such month to month
tenancy by giving to the other party 30 days' written notice -of its intention
to terminate. The provisions of this paragraph 29 shall not be deemed a consent
on the part of Lessor of Lessee's continued occupancy after the termination of
this lease, nor waiver of any of Lessor's rights with respect hereto.
30. TIME OF ESSENCE. Time is of the essence of this lease, and of
each provision.
31. RIGHTS OF PARTIES. Either Lessor or Lessee may, from time to
time, at their respective option, exercise all rights or remedies which such
party may have at law or in equity, and any consent, waiver, compromise, or
indulgence by one party hereto, of or under any of the provisions of this lease,
or as to breach or default hereunder by the other party, shall not constitute or
be construed as a waiver of the former party's rights to enforce performance of
the conditions and terms hereof at all other times. Lessee shall permit Lessor
and their agents or representatives to enter the demised premises at all
reasonable times for the purposes of: (i) inspecting the same; or (ii) showing
it to prospective purchasers or mortgagors. Reasonable times shall be construed
to be during Lessee's normal business hours.
32. CONSENTS. Any consent or approval required hereunder will not be
unreasonably withheld.
33. INSOLVENCY OR RECEIVERSHIP. In the event an involuntary
petition in bankruptcy is filed against Lessee, or if Lessee shall file a
voluntary petition in bankruptcy, or shall institute any proceedings of any
kind or character under any bankruptcy or insolvency law, state or federal,
or institute any proceedings for reorganization under any Chapter of the
Federal Bankruptcy Act in effect at the date hereof, or which may hereafter
be enacted or become effective, wherein and whereby any right of Lessor shall
or may be affected in any degree, or shall be adjudged a bankrupt or
insolvent by any court, or shall make an assignment, general or otherwise,
for the benefit of creditors or appoint any creditor's committee to take
over, or if a receiver of any interest of Lessee in said premises shall be
appointed by any court and not discharged within thirty (30) days thereafter,
Lessor may, in any such event, at his option, without notice or demand upon
Lessee, or upon any person or persons claiming by, through or under Lessee,
terminate each, every and all of the rights of Lessee and of any and all
person claiming by, through or under Lessee, in and to the demised premises
34. OPTION TO EXTEND (RENEW). Lessee is hereby granted an option to
extend the term of this lease for one consecutive five (5) year renewal term
upon expiration of the initial five year primary term of this lease, under the
same terms, covenants, and conditions so far as applicable (except as to rent,
as provided in Paragraph 2 above), and subject to the same exceptions and
reservations as herein contained. This option shall be exercised by written
notice setting forth Lessee's election to exercise the option, delivered to
Lessor, in person, or by United
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States mail, not less than one hundred fifty (150) days prior to expiration of
the primary lease term; provided, Lessee is (a) in good standing with the Lessor
with respect to all of the articles and conditions of this Lease, at the time of
notice to Lessor by Lessee that Lessee intends to exercise Lessee's option to
extend the Lease period provided in this paragraph, and (b) still in good
standing at the time the lease extension would begin.
35. RIGHT OF FIRST REFUSAL. If Lessor shall receive a bona fide
third party offer (a "Third Party Offer") for the purchase of all or any part of
the demised premises (the "Sale Property") during the term of this lease
(including any renewals hereof), and the Third Party Offer shall be acceptable
to Lessor, in Lessor's sole and absolute discretion, Lessor shall give Lessee
the right to purchase the Sale Property (but not any other portion of the
demised premises not covered by the Third Party Offer) at the price and on the
terms and conditions of the Third Party Offer. This right of first refusal shall
be extended to Lessee by Lessor giving Lessee written notice of the Third Party
Offer, offering to sell the Sale Property to Lessee on the same terms and
conditions as the Third Party Offer ("Lessor's Offer"), and requiring Lessee to
accept Lessor's Offer in writing, within twenty (20) days after Lessee's receipt
of such notice. If Lessee fails to accept Lessor's offer within said twenty (20)
day period, Lessor shall have the right to accept the Third Party Offer, and
convey the Sale Property to said third party under the Third Party Offer,
subject to Lessee's rights under this lease. No sale of the demised premises to
a third party shall terminate this lease or otherwise affect Lessee's rights
under this lease.
36. INVALIDITY OF CERTAIN PROVISIONS. If any terms or provisions of
this lease, or the application thereof to any person or circumstances, shall, to
any extent, be invalid or unenforceable, the remainder of this lease, or the
application of such terms or provisions to persons or circumstances other than
that to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this lease shall be valid and be
enforced to the extent permitted by law.
37. BINDING FUTURE PARTIES. Each and all of the terms and
agreements herein contained shall be binding upon and inure to the benefit of
the parties hereto, their heirs, personal and legal representatives,
successors, and assigns.
38. CONSTRUCTION OF WORDS. The masculine gender, singular number,
and present tense, shall be deemed to include the feminine and neuter
genders, the plural number, and the future and past tenses, respectively, and
vice-versa, where the context so requires. The word "mortgage" and reference
words thereto shall also include "deed of trust" and reference words thereto,
and vice versa.
39. PARAGRAPH HEADINGS. Paragraph headings contained herein are for
reference only and are not intended to be part of the agreement, nor to be used
in its interpretation.
40. CONTROLLING LAW. IT IS UNDERSTOOD AND AGREED THAT THIS LEASE IS
ENTERED INTO ON THE BASIS OF THE LAW OF THE STATE OF OREGON, AND THAT LESSOR AND
LESSEE AGREE THAT THIS LEASE AND EACH OF ITS TERMS AND PROVISIONS SHALL BE
GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF OREGON.
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41. PAVING ASSESSMENT. Lessee agrees to pay during the term of this
lease all sums assessed against the demised premises, in respect of an existing
current paving assessment. Lessor will provide Lessee with payment-due notices
thereunder as received and Lessee will have thirty (30) days thereafter in which
to make such annual payment.
42. INVENTORY. Lessee agrees to limit inventory to 6,000 tons unless
inventory is controlled by a legitimate, bona fide purchase order from a listed
New York Stock Exchange company but in no event will inventory exceed 9,000
tons.
44. ENVIRONMENTAL MATTERS. Lessee shall conduct its operations at
the demised premises in accordance with applicable environmental laws and
regulations. In the event that any hazardous substances or materials are
released into the environment as a result of Lessee's operations, Lessee shall
promptly clean up the release at its expense and in accordance with applicable
laws and regulations. Lessee agrees to indemnify, defend and hold Lessor
harmless from and against any and all losses, liabilities, claims, costs and
expenses (including reasonable attorney fees) arising out of or in any way
related to Lessee's failure to perform its obligations under this paragraph 44.
Lessor agrees to indemnify, defend and hold Lessee harmless from and against any
and all losses, liabilities, claims, costs and expenses (including reasonable
attorney fees) arising out of or resulting from the release of any hazardous
substance or material on the demised premises prior to effective date first
stated above. The term "hazardous substance or material" as used herein shall
include, without limitation, petroleum, PCBs, asbestos and any substance or
material of any kind or nature whatsoever that is defined as hazardous or toxic
by any applicable federal, state, or local statute, rule, regulation or
ordinance.
LESSOR LESSEE:
RB Recycling, Inc.
By:
-----------------------------
Xxxxxx Xxxxx Title:
---------------------------
IN THE STATE OF OREGON )
)
COUNTY OF MULTNOMAH )
BEFORE ME, the undersigned authority, on this day personally appeared
XXXXXX XXXXX, known to me to be the person whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this ____ day of __________,
1999.
---------------------------
Notary Public in and for
Multnomah County, Oregon
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My Commission Expires: Printed Name of Notary:
------------------------------ ------------------------------
IN THE STATE OF OREGON )
)
COUNTY OF _____________ )
BEFORE ME, the undersigned authority, on this day personally appeared
_________ _________________, President of RB Recycling, Inc., known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated, and as the act and deed of
said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE on this ____ day of __________
1999.
-----------------------------
Notary Public in and for
Multnomah County, Oregon
My Commission Expires: Printed Name of Notary:
------------------------------ ------------------------------
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