EXHIBIT 10.2
LEASE OF REAL PROPERTY
THIS LEASE OF REAL PROPERTY is made and entered into effective the 1st
day of February, 1999, by and between EEEK Limited Partnership (the "Lessor")
and RB RECYCLING, Inc., an Oregon corporation ("Lessee"), acting through its
duly authorized officer.
W I T N E S S E T H:
For and in consideration of the sum of Ten Dollars ($10.00) and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged and confessed, the parties hereto agree as follows:
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 thereof being as follows:
Lots 1 through ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇.
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 successive 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:
(i) During the first year of the primary term of this
lease monthly rent shall be the sum of $950 per
month.
(ii) During the second year of the primary term of this
lease monthly rent shall be the sum of $1,025 per
month.
(iii) During the third year of the primary term of this
lease monthly rent shall be the sum of $1,100 per
month.
(iv) During the fourth year of the primary term of this
lease monthly rent shall be the sum of $1,175 per
month.
(v) During the fifth year of the primary term of this
lease monthly rent shall be the sum of $1,250 per
month.
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.
(a) RENEWAL TERM. Lessee agrees to pay the Lessor
during the Upon election of the Lessee to exercise its option to renew
this Lease for the Renewal Term, as set forth in Paragraph 31 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 $1,325 per
month.
(ii)During the second year of the Renewal Term of
this lease monthly rent shall be the sum of
$1,400 per month.
(iii) During the third year of the Renewal Term of
this lease monthly rent shall be the sum of
$1,475 per month.
(iv)During the fourth year of the Renewal Term of
this lease monthly rent shall be the sum of
$1,550 per month.
(v) During the fifth year of the Renewal Term of this
lease monthly rent shall be the sum of $1,625 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 times and in the
manner aforesaid.
5. TAXES.
(a) In addition to the rentals above provided, Lessee shall
during any Lease term, pay and discharge, or cause to be paid
and discharged, 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 and
future assessments against the property which are made for the
purpose of paying for improvements, such as, without
limitation, street improvements, street sewers and water pipes
and any increase in property taxes arising out of or related
to any capital improvements constructed on the demised
premises by Lessee.
(b) General taxes on the demised premises for the first year
of the primary term of this Lease and for the last year of the
primary term of this Lease (or, if exercised by Lessee, the
Renewal Term of this Lease) shall be prorated between Lessor
and Lessee through the last day of the term of this Lease.
(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 with an insurer
licensed to do business in the State of Oregon, by the terms of
which Lessee is named as an insured, and Lessor is named as an
additional insured. 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 non-contributing 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 name of Lessee, and indicate Lessor as an additional
insured party. Executed copies of such policy or policies of
insurance, or certificates thereof, shall be delivered to
Lessor, and all such policies shall contain a provision that
not less than thirty (30) 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 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. EEEK Limited Partnership
8501 North Borthwick ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Plant Manager Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Managing General Partner
With a Copy to:
RB Rubber, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
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. 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.
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 and uses normally incident
thereto. Lessee may not use the demised premises for any other business or use
without Lessor's prior written consent, which consent will not be unreasonably
withheld, delayed or conditioned. Lessee shall not use the demised 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 demised premises shall not be disturbed or interfered
with by Lessor or any person claiming by, through, or under Lessor.
13. 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, reasonable
wear and tear excepted.
14. 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 continued occupancy for the uses and
purposes for which the demised premises are leased, in
Lessee's sole judgment, then in either event Lessee may
terminate this Lease 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 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 primary
term and Renewal Term of this Lease at the date of taking or
damage, ownership of the property taken, and the extent of
severance or other damage to equipment and improvements of
Lessee and Lessor.
15. 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 persons whomsoever to occupy the demised premises
without the written consent of the Lessor being first obtained in writing, which
consent shall not be unreasonably withheld. 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 conditions as set out in this
Lease. This Lease is personal to said Lessee's interests, in whole or in part,
and 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.
16. 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 form insurance policy.
17. 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 CHOSEN. 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.
18. 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.
19. ALTERATION, FIXTURES AND IMPROVEMENTS. Lessor hereby acknowledges
and confirms that title to all improvements, fixtures, equipment, and personal
property located on the demised premises at the commencement of this Lease is,
and shall remain, vested in Lessee, and may be altered or removed without the
prior consent of Lessor. No future 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 process of
waste materials. Lessee shall be permitted to remove all such additions,
improvements, and fixtures from the demised premises at any time during the
thirty (30) days prior to the expiration or sooner termination of this 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 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.
20. 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 20 contained
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.
21. 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 a default.
22. 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
demised 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 22, 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 demised premises.
23. 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 demised 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.
24. 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 thirty (30) continuous days.
(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, and continuation of such failure for a period of ten
(10) days after Lessee's receipt of written notice of such
failure from Lessor.
(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, and continuation of such failure for a
period of 30 days after Lessee's receipt of 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.
25. REMEDIES OF LESSOR. In the event of any breach of this Lease by
Lessee, and failure to cure during the subject notice and cure periods as
provided herein, then Lessor, in addition to such other rights or remedies
provided to Lessor herein, 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, they 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 demised premises. Upon each such
re-letting (a) Lessee shall be immediately liable to pay to Lessor, in addition
to any indebtedness other than rent due hereunder, 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 any such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of said premises 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 be 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
recovering the demised premises, and including 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 term, over the then reasonable rental value of the demised
premises for the remainder of such term, all of which amounts shall be due and
payable from Lessee to Lessor as they accrue.
26. 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 26 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.
27. TIME OF ESSENCE. Time is of the essence of this Lease, and of
each provision hereof.
28. 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 mortgagers. Reasonable times shall be construed
to be during Lessee's normal business hours.
29. CONSENTS. It is understood and agreed that the granting of any
consent by Lessor to Lessee to perform any act of Lessee requiring Lessor's
consent under the terms of this Lease, or the failure on the part of Lessor to
object to any such action taken by Lessee without Lessor's consent, shall not be
deemed a waiver by Lessor of their rights to require such consent for any
further similar act by Lessee, and Lessee hereby expressly covenants and
warrants that as to all matters requiring Lessor's consent under the terms of
this Lease, Lessee shall secure such consent for each and every happening of the
event requiring such consent, and shall not claim any waiver on the part of
Lessor of the requirement to secure such consent. Any consent or approval
required hereunder shall not be unreasonably withheld.
30. 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.
31. OPTION TO EXTEND. Lessee is hereby granted an option to extend
the primary 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,
which shall be as provided in Paragraph 3 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 States mail, not less than thirty
(30) days prior to expiration of the primary Lease term; provided, Lessee shall
only be entitled to exercise this option to extend if Lessee is (a) not in
default under 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) not in default at the time the Renewal Term is to commence.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. PURCHASE OPTION .
(a) For and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and
confessed, Lessor hereby grants to Lessee the sole and
exclusive option (the "Purchase Option") to purchase the
demised premises for a sum equal to the number of square feet
comprising the demised premises, multiplied by the sum of
$6.00.
(b) This Purchase Option may be exercised by Lessee by
delivery of written notice to Lessor on or before the
expiration date of this Purchase Option. This Purchase Option,
if not sooner exercised, expires five (5) years after the date
hereof.
(c) Upon closing of this Purchase Option, Lessee shall be
entitled to receive from Lessor a general warranty deed
conveying the demised property to Lessee, free and clear of
all liens, mortgages, and encumbrances except as may be
approved in writing by Lessee. The closing shall be held at
the offices of Chicago Title Insurance Company, ▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, on a mutually
agreeable date, but not later than the first business day
following the expiration of thirty (30) days after Lessee's
exercise of this Purchase Option.
(d) Within ten (10) days after Lessee's written notice to
Lessor of intention to exercise this Purchase Option, Lessor
shall cause to be delivered to Lessee a title commitment,
issued by the title company, committing to issue an owner's
policy of title insurance to Lessee, in the amount of the
purchase price. Defects in title, if any, as evidenced by such
title commitment, or any survey defects affecting the demised
premises, shall be remedied by Lessor within five (5) days of
written notice to him of such defects; provided, however,
Lessor shall not be obligated to expend any monies to cure
such defects. If any such defects are not cured on or before
the closing date, Lessee, at its sole election, may (i)
terminate this Lease and the Purchase Option, (ii) terminate
this Purchase Option, and continue with the terms of this
Lease as if this Purchase Option had not been exercised
(provided, if Lessee's time period to exercise the Renewal
Term has expired, Lessee shall have an additional thirty (30)
days after its termination of this Purchase Option to exercise
the Renewal Term), or (iii) waive such defect and close the
Purchase Option.
(e) At such closing, the purchase price shall be paid to
Lessor in cash, and Lessor shall deliver said deed, and an
owner's policy of title insurance in the amount of the
purchase price, at Lessor's sole cost and expense. Prepaid
rentals and ad valorem taxes shall be prorated as of the
closing date. All other closing costs shal1 be paid by such
party customarily paying such closing costs in Multnomah
County, Oregon. Pending the closing of the purchase, Lessee
shall pay rent as provided in Paragraph 3 above.
(f) If this Purchase Option has not been exercised prior to
that date which is five (5) years after the date of this
Lease, this Purchase Option shall automatically terminate.
Should Lessee exercise this Purchase Option and fail to close
for reasons not the fault of Lessor or not due to a title or
survey defect, Lessor may specifically enforce Lessee's
obligation to purchase, or seek such other remedies as may be
available at law or in equity. If Lessee shall exercise the
Purchase
Option and Lessor shall fail to close said transaction for
reason not the fault of Lessee, Lessee may enforce specific
performance of this purchase option, or seek such other
remedies as may be available to Lessor at law or in equity.
38. FINAL AGREEMENT. THIS LEASE REPRESENTS A FINAL AGREEMENT
BETWEEN THE PARTIES WITH RESPECT TO THE MATTERS CONTAINED HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
39. 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 39.
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.
IN WITNESS WHEREOF, this Lease has been executed as of the date first
set forth above.
LESSOR: EEEK Limited Partnership LESSEE: RB Recycling, Inc.
By:
-------------------------------------- By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Partner ----------------------------
Title:-------------------------