LEASE AGREEMENT
THIS LEASE, made by and between Plastic Properties, LLC, Green Bay,
Wisconsin, a Wisconsin Limited Liability corporation, hereinafter called
"Lessor", and Recycled Plastic Industries, Inc., a Wisconsin corporation,
Green Bay, Wisconsin, hereinafter called "Lessee".
WITNESSETH:
I. PREMISES:
In consideration of the rents, covenants and agreements hereinafter set
forth, Lessor does hereby demise and lease to Lessee, and Lessee does hereby
take and hire from Lessor, the building premises situated in the City of Green
Bay, County of Xxxxx and State of Wisconsin, containing approximately 20,000
square feet, and any and all improvements. Said building premises are located
at 0000 XxXxxxxx Xxxxxx, Xxxxx Xxx, Xxxxxxxxx 00000, and bears the following
legal description:
The building comprised or approximately 20,000 square feet located at
0000 XxXxxxxx Xxxxxx, Xxxx of Xxxxx Xxx, Xxxxx Xxxxxx, Xxxxxxxxx, 00000
described as that part of Lots Five (5) and Six (6), Block Four (4), lying
East of Xxxxxx Xxxxxxxxx Ice Company spur track, as shown on the blueprint
attached to the land contract recorded in the office of the Register of Deeds
for Xxxxx County, Wisconsin in Volume 13 Miscellaneous Records, Page 15,
according to the recorded Plat of McDonald's Addition, in the City of Green
Bay, West side of Fox River, together with a perpetual easement across lots
2,3 and 4, Block 4, according to the recorded Plat of McDonald's Addition, in
the City of Green Bay, West side of Fox River, for the installation, laying,
maintaining and repairing of sufficient sewer and water pipes to service Lots
5 and 6 above. ALSO that part of the vacated Xxxxxx Street as described in
Jacket 2639 Records, Image 15-16. AND Lot Three (3), according to the
recorded Plat of X.X. Xxxxxx'x Second Addition, in the City of Green Bay,
Xxxxx County, Wisconsin, except the most southerly Seventeen and One-half
(17.5) feet thereof.
II. TERMS:
A. Original Term: The Original lease term shall be for a period of
five (5) years commencing January 27, 1997 and terminating on December 31,
2001.
B. First Renewal Term: Lessee may renew the term of this lease for a
period of five (5) years upon the giving of notice to Lessor. Such notice
must be given at least ninety (90) days prior to the expiration of the
original term. Upon Lessee giving notice of the exercise of this option, this
lease shall be renewed upon the same terms and conditions as are applicable to
the original term.
III. COMMENCEMENT DATE:
The commencement date of this lease shall be January 1, 1997.
IV. RENTAL:
Lessee shall pay to Lessor, in advance, Four Thousand Four Hundred and
Thirty Two Dollars and 42 cents ($4,432.42) per month, due on the first day of
each calendar month. The first monthly payment shall be due on the signing
date of this Lease. Lessee shall also pay to Lessor $4,432.42 upon execution
of this lease which shall serve as security for Lessee's performance as
provided herein, and refunded to Lessee at the expiration or termination of
this Lease, subject to Lessee's satisfactory compliance with the conditions
hereof.
V. TAXES AND ASSESSMENTS:
Lessee agrees to pay to the appropriate governmental agencies all real
property taxes, impositions, or all other claims or charges, specifically not
including special assessments (herein collectively called the "taxes"), which
may constitute or may be reduced to a lien upon the leased premises, including
but not limited to water charges and sewer charges, before the same shall
become delinquent. All such payments for the first and last year of the
original term and any renewal tern shall be prorated between Lessor and
Lessee, so that Lessee shall be responsible for that portion of the taxes
which is attributable to the original term and any renewal term.
Lessee shall have the right in its own name, or in Lessor's name where
appropriate, but at its own cost and expense, to contest the amount or
legality of any taxes which it is obligated to pay hereunder and make
application for the reduction thereof, or any assessment upon which the same
may be based, and the Lessor agrees at the request of the Lessee to execute or
join in the execution of any instruments or documents necessary in connection
with such contest or application. If the Lessee shall contest such tax
assessment or other imposition, the time within which the Lessee shall be
required to pay the same shall be extended until such contest or application
shall have been finally determined, except that Lessee shall be responsible
for any penalty imposed by the taxing authority resulting from late payment of
taxes due to said contest.
VI. INSURANCE
Lessee hereby covenants and agrees at all times during the original term of
this lease and any renewal term to maintain and keep in force for the mutual
benefit of Lessor and Lessee.
(a) Comprehensive general liability insurance against all claims for personal
injury, death or property damage occurring on the leased premises with minimum
limits of liability of $1,000,000.00 per occurrence, property damage or bodily
injury, and $2,000,000.00 general aggregate.
(b) Fire insurance, with extended coverage, in an amount not less than the
replacement value of the improvements located on the leased premises. Such
policy may, at the option of Lessor, contain a loss payable clause in favor of
any mortgagee of the leased premises, as their interests may appear.
(c) All insurance provided by Lessee as required in this section shall be
carried in favor of Lessor and Lessee as their respective interests may
appear, and in case of insurance against damage to the leased premises by fire
or other casualty, shall provide that the loss, if any, shall be adjusted with
the payable to the Lessor. All insurance shall be written with responsible
companies and the policies shall be held by Lessor, or, when appropriate, by
the holder of any mortgage, in which case copies of the policies or
certificates of insurance shall be delivered by Lessee to Lessor. Lessor shall
be listed as an additional named insured and all policies shall require thirty
(30) days notice by registered mail to Lessor of any cancellation or change
affecting any interest of Lessor.
(d) All insurance policies for liability, fire, and casualty shall bear an
endorsement waiving the right of subrogation, first against the Lessor for any
acts or omissions on its part, and secondly, against the Lessee for any acts
or omissions on its part.
VII. UTILITIES
Lessee shall pay all natural gas, oil, electrical utility bills, water,
telephone, and any
and all other utilities for the leased premises and shall pay as and when due
all charges
against the premises for such utility services. All applications and
connections for necessary utility services on the leased premises subsequent
to January 1, 1997, shall be made only in the name of the Lessee.
VIII. ALTERATIONS, ADDITIONS AND IMPROVEMENTS:
A. Subject to the limitation that no substantial portion of the building
premises shall be demolished or removed by Lessee without prior written
consent of Lessor, and if necessary, of any mortgagee, Lessee may, at any time
during the lease term, subject to the conditions set forth below and at its
own expense, make any alterations, additions or improvements in and to the
building premises. Alterations shall be performed in a workmanlike manner and
shall not weaken or impair the structural strength, or lessen the value, of
the building premises, or change the purposes for which the building or any
part thereof, may be used.
B. Conditions with respect to alterations, additions or improvements are as
follows:
(1) Before commencement of any work all plans and specifications shall be
submitted, filed with, and approved by all governmental departments or
authorities having jurisdiction and any public utility company having an
interest therein, and all work shall be done in accordance with requirements
of all applicable governmental regulations. The plans and specifications for
any alternations estimated to cost Twenty-Five Thousand Dollars ($25,000.00)
or more shall be submitted to Lessor. However, all alternations to the
structure walls and roof of the building regardless of cost must be submitted
to Lessor for written approval prior to commencement of work.
(2) Prior to commencement of any work, Lessee shall pay the amount of any
increase in premiums on insurance policies provided for herein because of
endorsements to be made covering the risk during the course of work.
(3) All alterations, additions, and improvements to the leased premises at the
commencement of the term, and that may be erected or installed during the
term, shall become part of the leased premises and the sole property of the
Lessor, except that all movable trade fixtures installed by Lessee shall be
and remain the property of Lessee.
IX. REPAIRS:
Lessee shall, at all times during the Lease and at its own cost and
expense, repair, and maintain in good, safe and substantial condition, all
buildings and any improvements, additions, and alterations thereto, and shall
use all reasonable precaution to prevent waste, damage or injury to the leased
premises.
Lessor Maintenance. Lessor shall keep and maintain the roof and structural
components of the demised premises, except that Lessee shall promptly repair
any damage caused thereto by its act or negligence or that of its employees,
agents, invitees, or contractors. Except as otherwise provided herein, the
Lessor shall not be responsible to maintain or make any improvements or
repairs of any kind, in or upon the demised premises.
Should Lessor, subject to its right of entry to repair and inspect the
leased premises, desire repairs completed subject to this section, and
should Lessee refuse to complete said repairs, the matter shall be submitted
to binding arbitration as set forth below:
Either party may declare a deadlock by written notice to the other
party, naming an arbitrator. The other party shall name an arbitrator within
five (5) working days of receipt of the notice. The two (2) arbitrators
selected shall select a third arbitrator within ten (10) days of the
arbitration notice and a decision shall be rendered within ten (10) days of
the selection of the third arbitrator, unless any of these time periods are
changed by agreement of the parties. The parties agree to be bound by the
majority decision.
Any arbitrator named hereunder shall be a member of the Xxxxx County
Builders Association, regularly involved in commercial construction.
The party against whom a decision is rendered shall pay the cost of all
of the arbitrators.
At the expiration of said lease period, Lessee shall return to Lessor the
leased premises in the same good condition as they were at the commencement of
this lease, subject only to usual and reasonable wear and tear.
X. CASUALTY LOSS:
If the building premises should be damaged by fire or other casualty, Lessee
shall
promptly notify Lessor of such casualty and Lessee shall promptly commence to
repair or
reconstruct such building or other improvements as nearly as may be to their
condition immediately prior to such casualty. In the event of a casualty which
is insured against,
Lessor and/or its mortgagees shall make all insurance proceeds available to
Lessee.
In the event of fire or casualty rendering the premises either partially or
totally untenantable, there shall be an equitable abatement of the rental
until the leased premises are again rendered fully tenantable, provided
that Lessee shall not be relieved from the obligation to pay taxes and other
charges and to keep the premises insured.
In the event of destruction of the building premises occurring during the last
twelve (12) months of the original tern of this lease or any renewal term, to
the extent of fifty percent (50%) or more of the value of the building, Lessee
may, at its option, elect to terminate this lease as of the date of said
damage or destruction, and in such event, Lessor shall receive all of the
proceeds derived from any insurance applicable to said building. Notice of
such election must be sent by Lessee to Lessor in writing within thirty (30)
days after such casualty. In the event of such termination, Lessor shall
refund to Lessee any unearned rents paid in advance of such termination date.
XI. SURRENDER OF PREMISES:
Lessee will deliver up and surrender possession of the leased premises to
Lessor upon the expiration of the lease, any renewal or extension hereof, or
its termination in any way, in a good and substantial state of repair,
reasonable wear and tear and damage by fire or other casualty, or from other
causes beyond Lessee's control, excepted.
XII. DEFAULT OF BREACH:
Each of the following events shall constitute a default or breach of this
lease by Lessee:
(a) If Lessee shall file a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or shall voluntarily take advantage
of any such act by answer or otherwise, or shall make an assignment for the
benefit of creditors.
(b) If involuntary proceedings under any bankruptcy law or insolvency act
shall be instituted against Lessee, or if a receiver or trustee shall be
appointed of all or substantially all of the property of Lessee, and such
proceedings shall not be dismissed or the receivership or trusteeship vacated
within sixty (60) days after the institution or appointment.
(c) If Lessee shall fail to pay Lessor any rent or additional rent when the
rent shall become due and shall not make the payment within thirty (30) days
after notice thereof by Lessor to Lessee.
(d) If Lessee shall fail to perform or comply with any of the conditions of
this lease and if the nonperformance shall continue for a period of thirty
(30) days after notice thereof by Lessor to Lessee or, if the performance
cannot by reasonably had within the thirty (30) day period and shall not in
good faith have commenced performance within the thirty (30) day period and
shall not diligently proceed to completion of performance.
(e) If Lessee shall vacate or abandon the leased premises.
XIII. EFFECT OF DEFAULT:
In the event of any default hereunder, as set forth in Section 12, above, the
rights of Lessor shall be as follows:
(a) Lessor shall have the right to cancel and terminate this lease, as
well as all of the right, title, and interest of Lessee hereunder, by
giving to Lessee not less than thirty (30) days notice of the cancellation and
termination. On expiration of the time fixed in the notice, this lease and the
right, title and interest of Lessee hereunder, shall terminate in the same
manner and with the same force and effect, except as to Lessee's liability, as
if the date fixed in the notice of cancellation and termination were the end
of the term herein originally determined.
(b) Lessor may elect, but shall not be obligated, to make any payment required
of Lessee herein or comply with any agreement, term or condition required
hereby to be performed by Lessee, and Lessor shall have the right to enter the
leased premises for the purpose of correcting or remedying any such default
and to remain until the default has been corrected or remedied, but any
expenditure for the correction by Lessor shall not be deemed to waive or
release the default of Lessee or the right of Lessor to take any action as may
be otherwise permissible hereunder in the case of any default.
(c) Lessor may re-enter the premises immediately and remove the property
and personnel of Lessee, and store the property in a public warehouse or at a
place selected by Lessor, at the expense of Lessee. After re-entry, Lessor may
terminate the lease on giving thirty (30) days written notice of termination
to Lessee. Without the notice, re-entry will not terminate the lease. On
termination, Lessor may recover from Lessee all damages proximately resulting
from the breach, including the cost of recovering the premises, and the worth
of the balance of this lease over the reasonable rental value of the premises
for the remainder of the lease term, which shall be immediately due Lessor
from Lessee.
(d) After re-entry, Lessor may re-let the premises or an part thereof for any
term without terminating the lease, at the rent and on the terms as Lessor may
choose.
(e) After re-entry, Lessor may, procure the appointment of a receiver.
Proceedings for appointment of a receiver by Lessor shall not terminate and
forfeit the lease unless Lessor has given written notice of termination to
Lessee as provided herein.
IV. WARRANTY OF TITLE BY LESSOR:
Lessor hereby warrants, represents and covenants to the Lessee that thc
Lessor has good and marketable fee simple title to the leased premises,
subject only to prior mortgages, and that the Lessor has full authority, right
and power to execute this lease and to lease the premises for the term
provided herein.
XV. QUIET ENJOYMENT
Lessor hereby covenants and agrees that if Lessee shall perform, all the
covenants and agreements herein stipulated to be performed by Lessee, Lessee
shall, at all times during the original term of this lease and any renewal
term, have peaceable and quiet enjoyment and possession of the leased premises
without any manner of let or hindrance from the Lessor or any other person,
firm or corporation.
XVI. SUBORDINATION AND NON-DISTURBANCE:
This lease shall be subject and subordinate to the lien of any mortgage which
the Lessor may place upon the premises to finance the cost of construction of
the improvements and to all terms, conditions and provisions thereof, to all
advances made, and to any renewal, extensions, modifications or replacement
thereof. Provided, however, that if there are no defaults hereunder on the
part of the Lessee, the right of possession of Lessee to the leased premises
and Lessee's rights arising out of this lease shall not be affected or
disturbed by the mortgagee in the exercise of any of its rights under the
mortgage or the note secured thereby, nor shall Lessee be named as a party
defendant to any foreclosure or other proceeding under the mortgage nor in any
other way be deprived of any of its rights under this lease, nor shall this
lease be terminated or affected by any foreclosure or sale or any proceeding
under any mortgage.
XVII. ACCESS TO PREMISES BY LESSOR:
Lessor shall have access to the leased premises at all reasonable hours and
upon reasonable notice during the original term of this lease and any renewal
terms for the purpose of examining the same; provided, however, that Lessor
shall not interfere in any way with the business of Lessee.
XVIII. ASSIGNMENT AND SUBLETTING BY LESSEE:
Lessee shall have the right to assign this lease or let or underlet the whole
or any part of the leased premises with the consent of Lessor, which consent
shall not be unreasonably withheld, provided that Lessee remains liable on
this lease.
XIX. NON-WAIVER:
The failure of the Lessor or Lessee to enforce any of the rights given to
Lessor or Lessee under this lease by reason of the violation of any of the
covenants in this lease to be performed by the Lessee or Lessor shall not be
construed as a waiver of the rights of the Lessor or Lessee to exercise any
such rights as to any subsequent violations of such covenants, or as a waiver
of any of the rights given to the Lessor or Lessee by reason of the violation
of any of the other covenants of this lease.
XX. SNOW REMOVAL:
The removal of all snow and ice from all roadways, all blacktopped surfaces,
access ways and unobstructed parking and loading areas shall be the
responsibility of and the sole expense of Lessee.
XXI. ENVIRONMENT:
Lessee agrees to maintain efficient and effective services for preventing and
eliminating any odors or smells and will so conduct and operate the leased
premises as not to interfere with the use and enjoyment of neighboring
buildings by others by reason of odors, noise, accumulation of garbage or
trash, vermin or other pests or otherwise.
XXII. CONSTRUCTION OF LEASE:
Words of any gender used in this lease shall be held to include any other
gender, and words in the singular number shall be held to include the plural,
when the sense requires. Wherever used herein, the words "Lessor,' and
"Lessee" shall be determined to include the heirs, personal representatives,
successors, subleases and assigns of said parties, unless the context excludes
such construction.
XXIV. SERVICE OF NOTICE:
If any term or provision 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 term or provision to
persons whose circumstances are other than those as to which it is held
invalid or unenforceable, shall not be affected thereby.
XXIV. SERVICE OF NOTICE:
Notices hereunder shall be in writing signed by the party serving the
same and shall be sent by Registered or Certified U.S. Mail, Return Receipt
Requested, postage prepaid, and
(a) if intended for Lessor, shall be addressed to:
Plastic Properties, LLC
0000 XxXxxxxx Xxxxxx
Xxxxx Xxx, XX 00000
and
(b) if intended for Lessor, shall be addressed to:
Recycled Plastics Industries, Inc.
0000 XxXxxxxx Xxxxxx
Xxxxx Xxx, XX 00000
and
U.S. Plastic Lumber Corp.
0000 Xxxxxx Xxxx, Xxxxx 000X
Xxxx Xxxxx, XX 00000
or to such other address as either party may have furnished to the other from
time to time as a place for the service of notice. Any notice so mailed shall
be deemed to have been given as of the time said notice is deposited in the
U.S. Mail, unless otherwise provided herein.
XXV. HEADINGS:
It is understood and agreed that the headings are inserted only as a matter of
convenience and for reference, and in no way define, limit or describe the
scope or intent of this lease, nor in any way affect this lease.
XXVI. ENTIRE AGREEMENT:
This lease contains the entire agreement between the parties and any agreement
hereafter made shall be ineffective to change, modify or discharge it in
whole or in part unless such agreement is in writing and signed by the party
against whom enforcement of the change, modification or discharge is sought.
Signed at Green Bay, Wisconsin this 27th day of January, 1997, as of
January 27, 1997.
WITNESS: LESSOR:
PLASTIC PROPERTIES, LLC
/s/ Xxxxx X. Xxxxx
WITNESS: LESSEE:
RPI ACQUISITION CORPORATION
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
Chairman
