DSHW-2024-005486

8/1/23 , 8 :06 PM OBA FILING -Pending Review
Basic Information Address & Contact Additional Information ( 8J Confirm )
OBA FILING -Pending Review
Business Information
DBA Name : EMPIRE RECYCLING SERVICES
Business Purpose : Remediation and Other Waste Management Services
Address
1135 E 770 N
Saint George, UT 84770
Female Owned : --
Minority Owned : --
Owners
Name: CIRCLE D ENTERPRISES, LLC
Entity Number: 2046679-0160
Address
1135 E 770 N
Saint George, UT 84770
Registered Agent Information
Name: Troy
Middle Name :
Last Name : Darius
Address
1135 E 770 N
Saint George, UT 84770
https ://secure .utah .gov/dba/application/summary.html
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DOC ff 20230032796
Notice Pa9e 1 of 4
Gary Christensen Washington County Recorder
IC/31 /2023 04 54 12 PM Fee$ 40 00
By TB LANCHARD LAW
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NOTICE OF LEASE AND PURCHASE OBLIGATIONS
THIS NOTICE OF LEASE AND PURCHASE OBLIGATION (this "Notice"} is made as of the
/ day of A I.) , 2023, ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC, a Utah
limited liability compan ("Seller-Landlord"} and CIRCLE D ENTERPRISES, LLC, a Utah li mited
liability company ("Buyer-Tenant"} (each, a "Party" and sometimes collectively referred to as
"the Parties"}.
A. Seller-Landlord is the fee si mple t itle owner of that certain parcel of prope rty
legally described on the Sch e dule attached hereto and made a part hereof (the "Property");
8 . Seller-Landlord and Buyer-Tenant have entered into that certain COMMERCIAL
REAL ESTATE LEASE AND PURCHASE AGREEMENT dated as of A"4' I , 2023 (the "Lease"),
pursuant to which Seller-Landlord has agreed to lease to Buyer-Tenant the Property upon the
terms and conditions set forth in the Lease and grant to Buyer-Tenant th e right and obligation to
purchase the Property; and
C. Seller-Landlord and Buyer-Tenant now desire give notice of the Lease.
NOW, THEREFORE, for and in consideration of the rents reserved and the covenants and
conditions set forth in the Lease, Seller-Landlord and Buyer-Tenant hereby give notice as follows:
1.
ending on
The Lease is effective for a term commencing on ~4 -Y ..... j i---'--~' 2023, and
r \,\, "I ; , , 202s
2. The Lease provides for the payment of Base Rent and other items.
3. The Lease contains an obligation for the Buyer-Tenant to purchase the Property
from the Seller-Landlord for a price set forth in the Lease .
4. Reference should be made to the Lease for more particular terms.
IN WITNESS WHEREOF, the parties hereto have caused this Notice to be executed by their
duly authorized representatives as of the day and year first above written .
For Seller-Landlord:
ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC
~-~
Signed:-::;,.~_.;.:7' ...,
By: John K. Sasine
Its: Manage~r ,/1/
Dated : ~ ------!'---------
STATE OF UTAH
County of Salt Lake
) ss.
)
Subscribed and sworn to before me on this O { day of August 2023 by John K. Sasine.
NOTARY PUBLIC
Oeyda Lonaine Ganycoa
Comm. No. 719839
l\,f> Commission Expires
08/10/2025
STATE OF UTAH
For Buyer-Tenant:
CIRCLED ENTERPRISES, LLC
Signed : _____________ _
By :
Its:
Dated :
STATE OF UTAH
County of Washington
) ss.
)
~ a
Subscribed and sworn to before me on this _ day of August 2023 by
________ (signer name).
Notary Public
Its : Manager
Dated:
STATE OF UTAH
County of Salt Lake
) ss .
)
Subscribed and sworn to before me on this_ day of August 2023 by John K. Sasine .
For Buyer-Tenant:
CIRCLE D ENTERPRISES, LLC
Signed :~
By. ......-,-r;; ,,_.,..,. ~
Its: ~
Dated: 1[ -1--:Z.. 3
STATE OF UTAH
County of Washington
Notary Public
) ss.
)
Subscribed and sworn to before me on this ..l_ day of August 2023 by
1\:~:Dl5Y\\)S (s i gner name).
1'10TARY PUHLJC 7
TARAKlMBER
723330
My ComJ!lJss E . ion xp1res
03101/2026
STATE OF UTAH
Schedule to Notice of lease and Purcha se Obligations
The real property consisting of three (3) contiguous acres of land referenced in the Recorder of
Washington County as :
Parcel No. SG-WRKS -7,
and having the legal description :
ALL OF LOT SEVEN (7), WESTERN ROCK SUBDIVISION , ACCORDING TO
THE OFFICIAL PLAT THEREOF, ON FLE AND OF RECORD IN THE OFFICE OF THE RECORDER OF
WASHINGTON COUNTY, STATE OF UTAH
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
This COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT ("Agreement") is
made by and between ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC, a Utah limited liability
company ("Seller-Landlord") and CIRCLE D ENTERPRISES, LLC, a Utah limited liability company
("Buyer-Tenant") (each, a "Party" and sometimes collectively referred to as "the Parties") as
follows :
WHEREAS, Seller-Landlord is the fee simple owner of that certain real property located at
820 North 1080 East, in St. George, Utah 84770, described in greater particularity in Section 1.02,
below (the "Property");
WHEREAS, Buyer-Tenant desires to lease, from Seller-Landlord and Seller-Landlord
desires to lease to Buyer-Tenant, the Property according to the terms in this Agreement, subject
to the express condition that Buyer-Tenant purchase the Property by the end of the Lease Term
as defined herein;
NOW, THEREFORE, fof good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Parties agree as follows:
ARTICLE 1 PRINCIPAL LEASE TERMS
Section 1.01 Granting Clause. Seller-Landlord leases the Property to Buyer-Tenant and Buyer-
Tenant leases the Property from Seller-Landlord pursuant to the terms and conditions set forth
in this Agreement (the "Lease").
Section 1.02 Property Defined . For the purposes of this Agreement and its provisions, the
Property is defined as, and shall consist of, the following:
(a) The real property consisting of three (3) contiguous acres of land referenced in the
Recorder of Washington County as Parcel No . SG-WRKS-7, and having the legal
description: ALL OF LOT SEVEN (7), WESTERN ROCK SUBDIVISION, ACCORDING TO
THE OFFICIAL PLAT THEREOF, ON FLE AND OF RECORD IN THE OFFICE OF THE RECORDER
OF WASHINGTON COUNTY, STATE OF UTAH (the "Land");
(b) One (1) office and warehouse building approximately three-thousand six-hundred
(3,600) square feet in size (the "Building"); and
(c) All rights of use, easements, rights of way, means of ingress and egress and all
beneficial easements that may exist with respect to the Property, and exclusive use of all
parking fields on the Property (the "Access and Use Rights").
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 1 of 22
Initials:
For Seller-Landlord:
For Buyer-Tenant: 'I!2..
Section 1.03 Lease Term. The term of the Lease shall be for a period of sixty (60) consecutive
months (the "Lease Term"). The Lease Term shall commence at 12:01 a.m. Mountain Daylight
Time on August 1, 2023 (the "Lease Start Date") and conclude at 11:59 p.m. Mountain Daylight
Time on July 31, 2028 ("Lease Termination Date"), unless terminated earlier by operation of
Section 4.07 of this Agreement.
Section 1.04 Rent and Other Charges Payable by Buyer-Tenant. Commencing on the Lease
Start Date and continuing on the first (1st) day of each month of the Lease Term, Buyer-Tenant
shall pay to Seller-Landlord, without prior demand and without deduction or setoff (except as
permitted by the terms of this Agreement) the following :
(a) Base Rent. Base rent, of six-thousand five-hundred seventy-eight and 35/100
Dollars ($6,578.35) ("Base Rent") shall be paid every month for the entire Initial Lease
Term. If the Effective Date of this Agreement occurs on a day other than the first day of a
calendar month, the Base Rent for the initial month shall be prorated on a per diem basis
using a thirty (30) calendar day period as a standard denominator for calculating the
amount owed, which shall be due on the Effective Date; and
(b) Transaction Deposit. On or before the Effective Date, Buyer-Tenant shall provide
a deposit to Seller-Landlord in the amount of fifty-thousand and no/100 Dollars
($50,000.00) which shall serve, in part, as a security deposit and, in-part, as an earnest
money deposit as Earnest Money toward the purchase of the Property by Buyer-Tenant
(collectively, the "Transaction Deposit"). Twenty-thousand and no/100 Dollars
($20,000.00) of the Transaction Deposit shall be allocated to the landlord-tenant
relationship and shall be be deposited into a bank account designated by Seller at Closing
(the "Security Deposit"). The balance of the Transaction Deposit shall be held in an
interest-bearing account owned by Southern Utah Title (the "Escrow Agent") at a
federally insured financial institution .
(1) Use of Security Deposit. If Buyer-Tenant breaches its Purchase Obligation
to purchase the Property (as described in Article 4 hereof), Seller-Landlord is
expressly authorized to retain the entire Transaction Deposit as its sole remedy
for such breach . Buyer-Tenant agrees to If Buyer-Tenant fails to purchase the
Property as set forth below for a reason other than the breach of its Purchase
Obligations (e.g., due to termination of the Purchase Obligation for a
condemnation, or due to a breach by Seller), then the Security Deposit shall be
refunded to Buyer.
(2) Application of Entire Transaction Deposit Upon Purchase . Should Buyer-
Tenant honor its Purchase Obligation as set forth below, the entire sum of the
Transaction Deposit, plus all interest earned thereupon, shall be applied as a credit
against the balance of the Purchase Price of the Property due at Closing.
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord : Rocky Mountain Recycl ing Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Initials:
For Seller-Landlord:
For Buyer-Ten ant: co
Page 2 of 22
Section 1.05 Buyer-Tenant's Responsibility for Property-Related Expenses. Buyer-Tenant shall
be solely responsible for payment of the following expenditures related to the Property as they
become due:
(a) One hundred percent (100%) of the costs of operating and maintaining the
Property, the Buildings, related parking areas, drive aisles, sidewalks, patios and landings,
limited to the following : heating, electricity, water, waste disposal, sewage, and all other
utilities; routine maintenance of electrical, plumbing, and all other equipment; operating
materials and supplies, service agreements and charges; lawn care; snow removal;
parking lot restriping and repairs; repaving cleaning and custodial costs; security costs;
insurance; the cost of contesting the validity or applicability of any governmental acts
which may affect operating expenses (in the event Buyer-Tenant elects to contest same).
Moreover, Buyer-Tenant shall pay, directly to the appropriate supplier, the cost of all
natural gas, heat, light, power, sewer service, telephone, water, refuse disposal and other
utilities and services supplied to the Property (collectively, the "Operating Expenses");
(b) One hundred percent (100%) of all real estate taxes assessed by the Washington
County Assessor and any other taxation authorities with respect to the Property, and all
other taxes, assessments, levies, and charges, whether general, special, extraordinary, or
otherwise, whether foreseen or unforeseen, which may be levied, assessed, or imposed
on (1) the land comprising the Property, or any ownership and/or other taxable interest
therein; and (2) all Buildings, structures, and other improvements situated on such land
(collectively, "Property Tax Expenses"), but specifically excluding any income taxes
incurred by Seller-Landlord and/or any franchise taxes; and
(c) One hundred percent (100%) of any and all costs associated with Buyer-Tenant's
obligations to insure the Property, including as set forth in Section 3.04 and Section 3.05
of this Agreement (collectively, the "Insurance Expenses").
It is the intent of both Parties that the Base Rent shall be net to Seller-Landlord throughout the
Lease Term that all operating costs, expenses and obligations of any kind relating to the Premises,
which may arise or become due during the Term shall be paid by Buyer-Tenant, unless specifically
stated otherwise in this Agreement. Further, Buyer-Tenant shall indemnify and hold harmless
Seller-Landlord against such costs, expenses, and obligations, except for Seller-Landlord's
maintenance obligations hereinafter set forth and as other Seller-Landlord obligations expressly
provided for by the terms of this Agreement (collectively, the "Property-Related Operating
Expenses").
Section 1.06 Pro Ration of Base Rent/Property-Related Operating Expenses. To the extent
that any Property-Related Operating Expense relates to or staddles a period of time prior to or
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 3 of 22
Initials:
For Seller-Landlord:
For Buyer-Tenant: ~
after this lease is in effect, then Property-Related Operating Expenses (including, without
limitation, any Operating Expenses, Property Tax Expenses, and Insurance Expenses) shall be pro
rated accordingly. By way of example, Property Taxes for the 2023 calendar year shall be
prorated with Seller-Landlord's paying its pro rata share of such 2023 Property Taxes based on
the number of days occurring prior to the Effective Date of the Lease relationship created by this
Agreement.
Section 1.07 Late Charges. Buyer-Tenant acknowledges and agrees that Buyer-Tenant's failure
to pay rent promptly when due may cause Seller-Landlord to incur unanticipated and additional
costs. The exact amount of such costs may be impractical or difficult to ascertain. and may include
(without limitation) processing and accounting charges and late charges which may be imposed
on Seller-Landlord by any ground lease, mortgage or trust deed encumbering the Property.
Therefore, if Seller-Landlord does not receive any rent payment by the fifth (5th) day of the
month, Buyer-Tenant shall pay Seller-Landlord a late charge equal to five percent (5%) of the
overdue amount (each, a "late Charge"). The Parties agree that the Late Charge defined herein
represents a fair and reasonable estimate of the costs Seller-Landlord will incur by reason of such
late payment.
ARTICLE Z TENANT'S OCCUPATION OF THE PROPERTY
Section 2.01 Permitted Uses. Buyer-Tenant shall be entitled to utilize the Property for the
conduct of its current business operations as a recycling facility and related activities, in a manner
that complies with (a) all zoning requirements applicable to the Property, and (b) all federal,
state, and local laws that apply to Buyer-Tenant's business and operations ("Permitted Uses").
Any changes to the nature or scope of the Permitted Uses during the Lease Term shall require
Seller-Landlord's advance written consent, which shall not be unreasonably withheld. Seller-
Landlord hereby represents and warrants that a recycling facility and related activities have been
conducted on the Property in accordance with all applicable state and local legal authority.
Section 2.02 Manner of Use . Buyer-Tenant shall not cause or permit the Property to be used in
any way which constitutes a violation of any law, ordinance, or governmental regulation or order.
Buyer-Tenant shall obtain and pay for all permits required by local, state and/or federal law for
Buyer-Tenant's occupancy on and conduct of the Permitted Uses on the Property and shall
promptly take all actions necessary to comply with all applicable statutes, ordinances, rules,
regulations, orders and requirements regulating the use by Buyer-Tenant of the Property and
other portions of the Property (including without limitation those areas defined in Section 1.02
of this Agreement), including the Occupational Safety and Health Act. Seller-Landlord hereby
represents and warrants that it has received no notice from any governmental entity of any
violation of any law, ordinance, or governmental regulation or order at the Property.
Section 2.03 Hazardous Materials. Buyer-Tenant shall not cause or permit the following: any
flammable items, explosives, radioactive materials, hazardous or toxic substances, waste or
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 4 of 22
Initials:
For Seller-Landlord:
For Buyer-Tenant: ~
related materials, including any substances defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any applicable federal, state or local laws or regulations, including
without limitation petroleum-based products, paints, solvents, lead, cyanide, DDT, printing inks,
acids, pesticides, ammonia compounds and other chemical products, asbestos, PCBs and similar
compounds, and including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons ("Hazardous
Material(s)") to be generated, produced, brought upon, used, stored, treated or disposed of in
or about the Property by Buyer-Tenant, its agents, employees, contractors, or invitees, except as
is necessary for Buyer-Tenant to carry out the Permitted Uses, without the prior written consent
of Seller-Landlord, which shall not be unreasonably withheld if (a) such use is necessary for Buyer-
Tenant to carry out the Permitted Uses, (b) Buyer-Tenant demonstrates that the use of such
substances will be used and contained as required by law, and (c) Buyer-Tenant provides Seller-
Landlord with all proof to Seller-Landlord 's satisfaction of Buyer-Tenant's legal entitlement to use
such substances (in the form of permits or other official documentation). Seller-Landlord shall be
entitled to take into account such other factors or facts as Seller-Landlord may reasonably
determine to be relevant in determining whether to grant or withhold consent to Buyer-Tenant's
proposed activity with respect to such Hazardous Material(s). Seller-Landlord hereby represents
and warrants that all Hazardous Materials (if any) that have been generated, produced, brought
upon, used, stored, treated or disposed of in or about the Property have been addressed in
accordance with all applicable environmental laws, ordinances, and regulations, that the
Property is currently in compliance with all applicable environmental laws, ordinances, and
regulations, and that Seller-Landlord has received no notice from any governmental entity of any
v i olation of any environmental law, ordinance or governmental regulation at the Property.
Section 2.04 Seller-Landlord's Access . Seller-Landlord shall have the right at reasonable
intervals to enter upon the Property to inspect the same or make repairs, provided Seller-
Landlord shall give Buyer-Tenant prior notice of such entry no less than two (2) calendar days in
advance, except in the case of an emergency that poses an immediate threat of damage to the
Property.
Section 2.05 Quiet Enjoyment. Subject to Buyer-Tenant's compliance with its obligations as
identified in this Agreement, Buyer-Tenant may peaceably and quietly occupy, hold and enjoy
the Property for the full Lease Term, free of any claim(s) or other action(s) by Seller-Landlord,
except as otherwise provided in this Agreement.
Section 2.06 Assignment and Subletting Prohibited . Buyer-Tenant shall not:
(a) Assign its [Buyer-Tenant's] leasehold interest in th e Property, obligation to
purcha se the Property, or any other obligations under this Agreement; or
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Se ller -Landlord: Rocky Mountai n Recycling Holdings, LLC
Buye r -Tenant: Circle D En t erprises, LLC
Page S of 22
Initials :
For Se ller-Landlord:
For Buye r-Tenant: -c.::Q_
(b) Sublease the Property to any third party(ies) or other person(s) not controlled by
or under common control with Buyer-Tenant.
Section 2.07 Exception to Prohibition on Assignment. Notwithstanding Section 2.06, Buyer-
Tenant may assign its rights and obligations under this Agreement, without Seller-Landlord's
consent, to any entity that is controlled by or under common control with, Buyer-Tenant
("Permitted Assignment"). Prior to making a Permitted Assignment, Buyer-Tenant shall submit
written notice to Seller-Landlord of Buyer-Tenant's intention to do so ("Notice of Permitted
Assignment"). Buyer-Tenant's Notice of Permitted Assignment shall be tendered to Seller-
Landlord not less than ten (10) calendar days before the date of the assignment, subject to the
following conditions:
(a) The content of Buyer-Tenant's Notice of Permitted Assignment shall include, at a
minimum: (i) the identification of the designated assignee(s) ("Buyer-Tenant's
Assignee(s)"); (ii) confirmation that Buyer-Tenant's relationship with Buyer-Tenant's
Assignee(s) meets the requirements of Section 2.07 of this Agreement; (iii) express
assumption of all obligations by Buyer-Tenant as specified in this Agreement and all
ancillary agreements; and (iv) provide verifiable proof satisfactory to Seller-Landlord of
Buyer-Tenant Assignee's financial abilities to perform the obligations under this
Agreement.
(b) Seller-Landlord shall, upon receipt of any Notice of Permitted Assignment and
supporting information as specified in Section 2.07(a), prepare and deliver to Buyer-
Tenant an Assignment and Assumption Agreement for execution by Buyer-Tenant, Buyer-
Tenant's Assignee(s), and Seller-Landlord.
ARTICLE 3 CONDITION OF PROPERTY, MAINTENANCE, REPAIRS, AND ALTERATIONS
Section 3.01 Existing Conditions. By executing this Agreement, Buyer-Tenant expressly
acknowledges and represents that it has had the opportunity to inspect and investigate the
physical condition of the Property. Buyer-Tenant accepts the Property in its physical condition as
of the Effective Date and subject to all obligations arising out of laws, ordinances, and
governmental regulations and orders. Except as provided herein, Buyer-Tenant acknowledges
that neither Seller-Landlord nor any agent of Seller-Landlord has made any representation as to
the physical condition of the Property or the suitability of the Property for any intended use.
Buyer-Tenant represents and warrants that Buyer-Tenant has made its own inspection of and
inquiry regarding the condition of the Property and is not relying on any representations of Seller-
Landlord except as specifically made in this Agreement. Notwithstanding the provisions of this
Section 3.01, Seller-Landlord shall deliver the Property to Buyer-Tenant with all plumbing,
mechanical and electrical systems in good working order.
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterpris es, LLC
Page 6 of 22
Initials:
For Seller-Landlord:
For Buyer-Tenant: "'L12...
Section 3.02 Parties' Respective Obligations. Except as specifically provided by other
provisions of this Agreement:
(a) Buyer-Tenant, at its sole cost and expense, shall keep all portions of the Property
(including, without limitation, doors, glass and window moldings, partitions, fixtures,
equipment, appurtenances, lighting, plumbing fixtures, sewage facilities, electric motors,
heating and air conditioning systems and equipment, drive aisles and parking areas,
interior walls, the roof and roof membrane, and all other nonstructural components of
the Buildings interiors, utility and other systems) in good order, condition and repair
(including interior repainting and refinishing, as needed) and free of debris and other
clutter. Buyer-Tenant shall not demolish, tear-down, destroy or remove any part of the
Property without Seller-Landlord's prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed.
(b) Buyer-Tenant shall fulfill all its obligations under Section 3.02 of this Agreement
at Buyer-Tenant's sole expense. Buyer-Tenant shall have an ongoing obligation to notify
Seller-Landlord of any damage to the Property caused by Buyer-Tenant that occurs within
three (3) business days of Buyer-Tenant learning of such damage. Buyer-Tenant shall
repa i r any such damage in full within thirty (30) calendar days from the date the damage
occurred . It is the intention of Seller-Landlord and Buyer-Tenant that, at all times during
the Lease Term and any extensions thereto, Buyer-Tenant shall maintain the Property in
a legally compliant condition and fully operative condition .
(c) The Seller-Landlord represents that there are no known structural issues with the
Buildings on the Property. Notwithstanding anything to the contrary contained herein,
the Seller-Landlord shall make, at its cost, all repairs within a reasonable time after
wri tten notice by the Buyer-Tenant to the foundation, structural elements, and exterior
wall s of the Buildings .
Section 3 .03 Buyer-Tenant's Insurance Obligations. During the Lease Term, Buyer-Tenant shall
maintain a policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Buyer-Tenant against liability for bodily
injury, property damage (including loss of use of property) and personal injury arising out of the
operation, use or occupancy of the Property and its activity elsewhere on the Property ("General
Liability Insurance"). Buyer-Tenant shall name Seller-Landlord as an add itional insured under
such policy. The in itial amount of such General Li ability Insurance shall be one million Dollars
($1,000,000.00) per occurrence, and two million Dollars ($2,000,000) annual general aggregate.
The liability insurance obtained by Buyer -Tenant under this Section 3.03 shall (i) be primary and
non-contri buting. The amount and coverage of such insurance shall not limit Buyer-Tenant's
liability nor relieve Buyer-Tenant of any other obligation under this Agreement. Seller-Landlord
may also obtain at its cost comprehensive public liability insurance in an amount and with
coverage determined by Seller-Landlord insuring Seller-Landlord against liability arising out of
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Re cycling Holdings, LLC
Buyer-Tenant: Circle D Enterpris es, LLC
Pa ge 7 of 22
Initials:
For Seller-Landlord:
For Buye r -Tenant: -i::Q._
ownership, operation, use or occupancy of the Property. The policy obtained by Seller-Landlord
shall not be contributory and shall not provide primary insurance
Section 3 .04 General Insurance Provisions.
(a) Any insurance which either party is required to maintain under this Agreement
shall include a provision which requires the insurance carrier to give the other party
hereto not less than ten (10) calendar days' written notice prior to any cancellation or
modification of such coverage .
(b) If Buyer-Tenant fails to deliver any policy, certificate or renewal to Seller-Landlord
required under this Agreement within the prescribed time period or if any such policy is
canceled or modified during the Lease Term without Seller-Landlord's consent, Seller-
Landlord may obtain such insurance, in which case Buyer-Tenant shall reimburse Seller-
Landlord for the cost of such insurance within fifteen (15) calendar days after receipt of a
statement that indicates the cost of such insurance and copy of paid invoice.
(c) Buyer-Tenant shall maintain all insurance required under this Agreement with
companies holding a "General Policy Rating" of A-/XII or better, as set forth in the most
current issue of "Best Key Rating Guide." Seller-Landlord and Buyer-Tenant acknowledge
the insurance markets are rapidly changing and that insu r ance in the form and amounts
described in this Section 3.04 may not be available in the future. Buyer-Tenant
acknowledges that the insurance described in this Section 3.04 is also for the benefit of
Seller-Landlord and Buyer-Tenant shall identify Seller-Landlord as an additional insured
party on all insurance policies obtained by Buyer-Tenant.
(d) Unless prohibited under any applicable insurance policies maintained, Seller-
Landlord and Buyer-Tenant each hereby waive any and all rights of recovery against the
other, or against the officers, employees, agents or representatives of the other, for loss
of or damage to its property or the property of others under its control, if such loss or
damage is covered by any insurance policy in force (whether or not described in this
Agreement) at the time of such loss or damage. Upon obtaining the required policies of
insurance, Seller-Landlord and Buyer-Tenant shall give notice to the insurance carriers of
this mutual waiver of subrogation.
Section 3.05 Property and Rental Income Insurance . During the Lease Term, Buyer-Tenant
shall maintain a Special Form Cause of Loss policy of insurance covering loss of, or damage to,
the Property, including all fixtures, equipment and improvements, in the full amount of its
replacement value and cost of reconstruction. The agreed value of the Property is nine hundred
thousand and no/100 ($900,000.00} and the estimated cost of replacement/construction of the
improvements upon this property is less than $900,000 (the "Property Insurance"}. Such policy
shall contain an Inflation Guard Endorsement and shall provide protection against all perils
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tena nt: Circle D Enterprises, LLC
Page 8 of 22
Initials:
For Seller-Landlord :
For Buyer-Tenant: 'IJ2_
included within the classification of fire, extended coverage, vandalism, malicious mischief,
special extended perils (all risk), sprinkler leakage and any other perils which Seller-Landlord
deems reasonably necessary . Buyer-Tenant shall be liable for the payment of any deductible
amount under Buyer-Tenant's insurance policies maintained pursuant to this Section 3 .05 . Buyer-
Tenant shall not do or permit anything to be done which invalidates any such insurance policies.
Section 3.06 Exemption of Seller-Landlord from Liability. Seller-Landlord shall not be liable for
any damage or injury to any person, business (or any loss of income therefrom), goods, wares,
merchandise or other property of Buyer-Tenant, Buyer-Tenant's employees, invitees, customers
or any other person in or about the Property, whether such damage or injury is caused by o r
results from (a) fire, steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprin klers, wires, appliances, plumbing, air conditioning or lighting
fixtures or any other cause ; or (c) conditions arising in or about the Property, upon other portions
of the Property, or from other sources or places. Seller-Landlord shall not be liable for any such
damage or injury even though the cause of o r the means of repairi ng such damage or injury are
not accessible to Buyer-Tenant. The provisions of this Section 3.06 shall not, however, exempt
Seller-Landlord from liability for Seller-Landlord's gross negligence or willful misconduct, or
breach by Seller-Landlord of its express obligations under this Agreement.
Section 3.07 Alterations, Additions, and Improvements . All equipment and personal property
for the carrying out of Buyer-Tenant's Permitted Uses of the Property, and/or other related items
shall remain the exclusive Property of Buyer-Tenant, regardless of their degree of affixation or
appurtenance to the Property and/or any Buildings and shall be removed upon Buyer-Tenant's
vacating the Property. Buyer-Tenant shall be permitted, with the prior written permission of
Seller-Landlord, which shall not be unreasonably withheld, to make alterations to the Property
necessary for the purpose of conducting Buyer-Tenant's business which w i ll not impair Buyer-
Tenant 's ability to restore the Property to its condition as of the Effective Date of this Agreement
at the time Buyer-Tenant vacates the Property. Notwithstanding the foregoing, Buyer-Tenant
may make interior alternations that do not exceed five-thousand and no/100 Dollars ($5,000.00)
in value without Seller-Landlord's consent. All other alterations may be made with Seller-
Landlord 's consent with shall not be unrea sonably withheld. Unless otherwise agreed upon by
the Parties in advance, Buyer-Tenant shall provide Seller-Landlord with proof of demolition
and/or lien and completion bonds in a form and in amounts satisfactory to Seller-Landlord. All
alterations, additions, and improvements shall be done in a good and workmanlike manner, in
conformity with all applicable laws and regulations, and by a contractor approved by Seller-
Landlord . Upon completion of any such work, Buyer-Tenant shall provide Seller-Landlord with
"as built" plans (if applicable/required by municipality), copies of all construction contracts, and
proof of payment for all labor and materials. Buyer-Tenant shall pay when due all claims for labor
and material furnished to the Property. Buyer-Tenant shall promptly remove any alterations,
add itions, or improvements constructed in violation of this Section 3.07 upon Seller-Landlord's
written request.
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller -Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenan t: Circl e D Enterprises, LLC
Page 9 of 22
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For Seller-Landlord :
For Buyer-Tenant: -rJ)
Section 3.08 Restoration Following Casualty. If the Property or either building located
thereon is damaged by a casualty insured by the Property Insurance Buyer-Tenant is obligated to
maintain as set forth in Section 3.05 of this Agreement, Buyer-Tenant shall, with due diligence
promptly repair or restore the damage to the condition that existed immediately prior to such
damage or destruction, consistent with all applicable laws, codes and regulations (collectively,
"Legal Requirements"). Seller-Landlord and Buyer-Tenant shall cooperate in the insurance claim
process and in the distribution of insurance proceeds to fund the repair and restoration of the
Property. If the Property or other building located thereon is damaged to such an extent that
Buyer-Tenant in its reasonable discretion believes that the conduct of its business at the Property
shall be impaired, the Buyer-Tenant shall undertake the restoration/repair efforts provided for
in the first paragraph of this Section 3.08, and Base Rent and all other charges due hereunder
shall, upon presentment of Buyer-Tenant's claim to the relevant insurer against the policy Buyer-
Tenant is obligated to cover interruption in rental payments, abate equitably until the date that
the affected building is fully restored/repaired.
Section 3.09 Condemnation. If all of the Property is condemned by any governmental
authority, this Agreement and Buyer-Tenant's rights and obligations under it will terminate as of
the date such governmental authority takes title. If twenty-five percent (25%) or more of the
Property is condemned by any governmental authority, either Seller-Landlord or Buyer-Tenant
shall have the right to terminate this Agreement by giving written notice thereof to the other party
within sixty (60) calendar days after the date of such taking. Buyer-Tenant will pay all rent due
under this Agreement until the date of such taking, without reduction or abatement. If Seller-
Landlord or Buyer-Tenant does not cancel this Agreement, the rent payable from and after the
date title vests in such governmental authority will be decreased in proportion to the portion of
the Property condemned . The parties will have such interests as may arise under this Agreement
and the Purchase Obligation in the event of any condemnation and may each pursue their
respective claims against the condemning authority. Notwithstanding the foregoing, in the event
Seller-Landlord elects to cancel this Agreement as permitted above, then Buyer-Tenant shall
continue to have the right to purchase the Property so long as Buyer-Tenant exercises its right to
purchase the Property within the sixty (GO) day notice period set forth above.
Section 3.10 Waiver. Buyer-Tenant waives the protection of any statute, code or judicial
decision which grants a tenant the right to terminate a lease in the event of the substantial or
total destruction of the leased property. Buyer-Tenant agrees that the provisions of Section 3.09
shall govern the rights and obligations of Seller-Landlord and Buyer-Tenant in the event of any
substantial or total destruction to the Property.
Section 3.11 General Indemnity. Buyer-Tenant shall indemnify Seller-Landlord against and
hold Seller-Landlord harmless from any and all costs, claims or liability arising from: (a) Buyer-
Tenant's use of the Property; (b) the conduct of Buyer-Tenant's business or anything else done
or permitted by Buyer-Tenant to be done in or about the Property, including any contamination
of the Property or any other property resulting from the presence or use of Hazardous Material
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 10 of 22
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For Seller-Landlord:
For Buyer-Tenant: 7J)_
caused or permitted by Buyer-Tenant; (c) any breach or default in the performance of Buyer-
Tenant's obligations under this Agreement, or (d) any misrepresentation or breach of warranty
by Buyer-Tenant under this Agreement. Buyer-Tenant shall defend Seller-Landlord against any
such cost, claim or liability at Buyer-Tenant's expense with counsel reasonably acceptable to
Seller-Landlord, or, at Seller-Landlord's election, Buyer-Tenant shall reimburse Seller-Landlord
for any legal fees or costs incurred by Seller-Landlord in connection with any such claim. As used
in this Section the term "Buyer-Tenant" shall include Buyer-Tenant's employees, agents,
contractors, and invitees, if applicable.
Seller-Landlord shall indemnify Buyer-Tenant against and hold Buyer-Tenant harmless from any
and all costs, claims or liabil ity arising from : {a) Any contamination of the Property or any other
property resulting from the presence or use of Hazardous Material caused or permitted by any
party which arises prior to the date that Buyer-Tenant takes possession of the Property; {b) any
breach or default in the performance of Seller -Landlord's obligations under this Agreement, or
(c) any misrepresentation or breach of warranty by Seller-Landlord under this Agreement. Seller-
Landlord shall defend Buyer-Tenant against any such cost, claim or liability at Seller-Landlord's
expense with counsel reasonably acceptable to Buyer-Tenant, or, at Buyer-Tenant 's election,
Seller-Landlord shall reimburse Buyer-Tenant for any legal fees or costs incurred by Buyer-Tenant
in connection with any such claim. As used in this Section the term "Seller-Landlord" shall include
Seller-Landlord's employees, agents, and contractors .
ARTICLE 4 TENANT'S PURCHASE OF REAL PROPERTY
Section 4.01 Obligation to Purchase Property. At any time withi n sixty (60) months following
the Effecti ve Date of this Agreement, Buyer-Tenant shall purchase the Property from Seller-
Landlord (the "Purchase Obligation") on the terms and conditions set forth in this Article 4.
Section 4 .02 Notice of Intent to Purchase . Buyer-Tenant shall deliver to Selle r -Landlord written
notice of Buyer-Tenant's intention to exercise its obligation to purchase the Property ("Purchase
Notice"). Buyer-Tenant's Purchase Notice shall be del ivered to Seller-Landlord not later than
ninety (90) calendar days before the end of the Lease Term {as defined in Section 1 .03, above)
(the "Purchase Notice Period"). The Purchase Notice shall identify a proposed closing date for
the Purchase, which shall be not later than ninety {90) calendar days after the date of the
Purchase Notice (the "Closing Date"). Seller-Landlord and Buyer-Tenant may, upon mutual
written agreement, shorten the Purchase Notice Period .
Section 4 .03 Purchase Price . Seller-Landlord and Buyer-Tenant agree that Buyer-Tenant shall
purchase the Property for nine -hundred thousand and no/100 Dollars ($900,000.00) (the
"Purchase Price,") which shall be payable as follows :
(a) Application of Security Deposit and Lease Payments to Balance of Purchase
Price . Subject to the express condition that no Default{s) by Buyer-Tenant (as defined in
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord : Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprise s, LLC
Page 11 of 22
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For Seller-Landlord:
For Buyer -Tenant: -( .. .D
Article 5 of this Agreement) exist, all Security Deposit funds and Base Rent payments
made by Buyer-Tenant during the lease Term and up to the Closing Date shall be credited
toward the balance of the Purchase Price payable by Buyer-Tenant at Closing .
(b) Lease Obligations Until Closing. Notwithstanding Buyer-Tenant's delivery of its
Purchase Notice to Seller-landlord, Buyer-Tenant and Seller-Landlord shall remain
obligated to honor all terms of the lease identified in this Agreement, including (with
respect to Buyer-Tenant)payment of all Base Rent and other obligations.
(c) Addition of Default-Related Costs. Should any Default(s) by Buyer-Tenant exist at
the time of Closing, all unpaid costs incurred by either Seller-Landlord or Buyer-Tenant
arising out of and/or relating to such Default(s) shall be added to the balance of the
Purchase Price payable by Buyer-Tenant at Closing.
Section 4.04 Remittance of Purchase Price. Buyer-Tenant shall remit the balance of the
Purchase Price due at Closing, calculated by applying the provisions of Section 4.03, by wire
transfer to an account designated by Seller-Landlord so as to be received before the Fedwire
Funds Service cutoff time in effect on the Closing Date.
Section 4.05 Broker Commissions and Closing Costs . The Parties agree that:
(a) Broker Commissions. Seller-Landlord, as Seller, shall not be represented by a real
estate broker in connection with its sale of the Property to Buyer-Tenant, as Buyer. Buyer-
Tenant, as Buyer, is represented by Steven Kemp of Vantage Real Estate. Each Party shall
be solely responsible for, and indemnify and hold harmless the other Party, for all
commission obligations incurred by their respective broker(s).
(b) Title and Closing Costs . At the Closing, Seller-Landlord shall provide to Buyer-
Tenant, at Seller-Landlord's cost a standard form owner's policy of title insurance issued
by the Escrow Agent as agent for an underwriter reasonably acceptable to Buyer-Tenant,
insuring that title to the Premises is vested in Buyer-Tenant, subject only to the Permitted
Exceptions (defined below). The policy shall be in the amount of the Purchase Price.
There shall be no property tax prorations. Recording fees and other closing costs shall be
allocated between Buyer-Tenant and Seller-Landlord in the customary manner as
determined by the Escrow Agent .
(c) Conveyance . At closing, Seller-Landlord shall cause the Property to be conveyed
to Buyer-Tenant by Warranty Deed conveying good and marketable title to the Premises,
free of all mortgages, deeds of trust, financial encumbrances, easements, restrictions and
other exceptions to title, other than exceptions 13, 14 and 15 set forth in the commitment
for title insurance attached as "Exhibit A" to this Agreement (the "Permitted
Exceptions"). For clarification, the exclusions to the Permitted Exceptions are not, and
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enter prises, LLC
Page 12 of 22
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For Seller-Landlord:
For Buyer-Tenant: --r:::D
shall not be construed as, Permitted Exceptions. Seller-Landlord shall satisfy, concurrent
with the Closing, any mortgage indebtedness or other financial encumbrances affecting
the Property. Buyer-Tenant shall accept the physical condition of the Property "as is, w ith
all faults" at the time of the Closing .
Section 4.06 Limit on Seller-Landlord Encumbrances. Seller-Landlord shall not, during the
Lease Term, encumber the Property with any easements, rights of way, liens, trust deeds, or
other encumbrances without Buyer-Tenant's prior written consent .
Section 4 .07 Termination of Lease Upon Buyer-Tenant's Purchase of the Property. Buyer-
Tenant's Lease hereunder shall terminate as of the Closing Date of Buyer-Tenant's purchase of
the Property pursuant to the terms of this Article and any other provisions that Seller-Landlord
and Buyer-Tenant may agree to while transacting the purchase of the Property. Buyer-Tenant
shall, upon Closing, obtain sufficient property loss and general liability insurance to ensure
coverage of any claims that arise relating to Buyer-Tenant's tenancy prior to Closing. Buyer-
Tenant shall identify Sellers, and each of them, as additional insureds under such policies for a
period of one-year after Closing .
Section 4.08 Risk of Loss and Condemnation. In the event of any material damage to the
Property through casualty, or condemnation of all or any portion of the Property prior to closing,
Buyer-Tenant shall have the option of accepting title to the Property or the remaining portion
thereof and of receiving as assignment of insurance and/or condemnation awards, or of revoking
or terminating its exercise of or obligation under the Purchase Obligation.
ARTICLE 5 DEFAULTS AND REMEDIES
Section 5.01 Buyer-Tenant Defaults . Buyer-Tenant shall be in default under this Agreement:
(a) If Buyer-Tenant vacates the Property and said vacation results in the cancellation
of any insurance described in Section 3.04 or 3.05; or
(b) If Buyer-Tenant fails to pay rent or any other charge within ten (10) calendar days
after written notice of such payment due from Seller-Landlord; or
(c) If Buyer-Tenant fails to perform any of Buyer-Tenant's non-monetary obligations
under this Agreement for a period of thirty (30) calendar days after written notice from
Seller-Landlord; provided that if more than thirty (30) days are required to complete such
performance, Buyer-Tenant shall not be in default if Buyer-Tenant commences such
performance within the thirty (30)-day period and thereafter diligently pursues its
completion; or
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 13 of 22
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For Buyer-Tenant: 'lJ:2..
(d) If Buyer-Tenant fails to honor its obligation to purchase the property as required
under Section 4.01 through Section 4.08; or
(e) If any of the following occur:
(1) if a petition for adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against Buyer-Tenant and is not dismissed within sixty
(GO) days; or
(2) if a trustee or receiver is appointed to take possession of substantially all
of Buyer-Tenant's assets located at the Property or of Buyer-Tenant's interest in
this Agreement and possession is not restored to Buyer-Tenant within sixty (GO)
days; or
(3) if substantially all of Buyer-Tenant's assets located at the Property or of
Buyer-Tenant's interest in this Agreement is subjected to attachment, execution
or other judicial seizure which is not discharged within sixty (GO) days. If a court of
competent jurisdiction determines that any of the acts described in this
subparagraph (d) are not a default under this Agreement, and a trustee is
appointed to take possession (or if Buyer-Tenant remains a debtor in possession)
and such trustee or Buyer-Tenant transfers Buyer-Tenant's interest hereunder,
then Seller-Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Buyer-Tenant under this Agreement.
Section 5.02 Seller-Landlord Remedies. On the occurrence of any default by Buyer-Tenant,
Seller-Landlord may, at any time thereafter, with or without notice or demand and without
limiting Seller-Landlord in the exercise of any right or remedy which Seller-Landlord has, including
as follows:
(a) Seller-Landlord's Right of Termination. Seller-Landlord shall have the right to
terminate Buyer-Tenant's r ight to possession of the Property by written notice ("Seller-
Landlord's Termination Notice"), in which case Buyer-Tenant's Lease shall terminate .
Following delivery of Seller-Landlord's Termination Notice, Buyer-Tenant shall
immediately surrender possession of the Property to Seller-Landlord and, within ten (10)
calendar days, vacate the Property completely (including the removal of Buyer-Tenant's
property, equipment and/or fixtures).
(b) Damages Recoverable by Seller-Landlord.
(1) Recovery of Unpaid Rent, Expenses and Costs of Termination. Seller-
Landlord shall be entitled to recover, and Buyer-Tenant shall be obligated to pay
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 14 of 22
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For Seller-Landlord:
For Buyer-Tenant: -L:D_
within ten (10) days of demand by Seller-Landlord, compensatory damages for
expenses incurred by reason of Buye r -Tenant's default, including without
limitation all unpaid Base Rent and other charges identified i n Section 1 .04 which
Buyer-Tenant owes at the time of terminat i on, along with costs incurred by Seller-
Landlord to remove Buyer-Tenant's personal property, and the cost of performing
necessary repairs; and
(2) liquidated Damages If Default Relates to Purchase Obligations. Seller-
Landlord shall be entitled to retain the full amount of the Transaction Deposit
along with all accrued interest thereupon, as and for full and complete liquidated
and agreed damages if Buyer-Tenant's Default is a Default with respect to its
Purchase Obligations, and the Parties shall be released from further liability to
each other hereunder with respect to Buyer -Tenant's Default related to its
Purchase Obligations. SELLER AND BUYER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH
SELLER MAY SUFFER UPON A BUYER DEFAULT WITH RESPECT TO ITS PURCHASE
OBLIGATIONS AND THAT THE DEPOSIT AND ANY INTEREST EARNED THEREON, AS
THE CASE MAY BE , REPRESENTS A REASONABLE ESTIMATE OF THE TOTAL NET
DETRIMENT THAT SELLER WOULD SUFFER UPON A BUYER DEFAULT WITH
RESPECT TO ITS PURCHASE OBLIGATIONS. SUCH LIQUIDATED AND AGREED
DAMAGES ARE NOT INTENDED AS A FORFEITURE OR A PENALTY WITHIN THE
MEANING OF APPLICABLE LAW .
(c) Maintain Buyer-Tenant's right to possession, in which case this Agreement shall
continue in effect whether or not Buyer-Tenant has abandoned the Property. In such
event, Selle r-Landlord shall be entitled to enforce all of Seller-Landlord's rights and
remedies under this Agreement, including the right to recover the rent as it becomes due;
(d) Pursue any other remedy now or hereafter ava ilable to Seller-Landlord under the
laws or judicial decisions of the state in wh ich the Property is located, however, in no
event shall Seller-Landlord be entitled to recovery of consequential or punitive damages
or, with respect to a Default of the Purchase Obligations, be entitled to recover more than
the Liquidated Damages above .
(e) Seller-Landlord shall use all commercially reasonable efforts to mitigate its
damages.
Section 5.03 Cumulative Remedies . Seller-Landlord 's exercise of any right or remedy shall not
prevent it from exercising any other right or remedy.
Section 5 .04 Default by Seller-Landlord . To the extent Seller-Landlord breaches any term of
this Agreement or there exi sts a condition which with the passage of time would re sult in a breach
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Se ller-Landlord: Rocky Mountain Re cycling Holdings, LLC
Buyer -Tenant: Circle D Enterprises, LL C
Pag e 15 o f 2 2
Initials:
For Seller-La ndlord:
For Bu yer-Tenant: -r:/2._
by Seller-Landlord, Buyer-Tenant shall furnish Seller-Landlord with written notice of the
breach(es) or condition. Seller-Landlord shall cure any such breach(es) or condition within thirty
(30) days of notifying Buyer-Tenant of its intention to do so. In the event Seller-Landlord fails to
cure any such breach after receiving notice pursuant to this Section 5.04, Buyer-Tenant shall have
the right to cure any breach of Seller-Landlord hereunder, after expiration of applicable grace
and cure period, and to offset against any obligations due for Base Rent, the Purchase Price, or
other charges payable by Buyer-Tenant under this Agreement.
ARTICLE 6 PROTECTION OF LANDLORD'S LENDERS
Section 6.01 Subordination. Seller-Landlord shall have the right to subordinate this
Agreement to any ground lease, deed of trust or mortgage encumbering the Property, any
advances made on the security thereof and any renewals, modifications, consolidations,
replacements or extensions thereof, whenever made or recorded, provided that as a condition
to any subordination and/or attornment provided for in this Article 6, the applicable lender
execute in favor of Buyer-Tenant a commercially reasonable non-disturbance agreement
(including, without limitation, an agreement to honor and be subject to the Purchase Obligation
at the Purchase Price described herein), which may be included within a subordination, non-
disturbance and attornment agreement ("SNDA.") Buyer-Tenant shall cooperate with Seller-
Landlord and any lender which is acquiring a security interest in the Property. Buyer-Tenant shall
execute such further documents and assurances as such lender may require. However, Buyer-
Tenant's right to quiet possession of and to purchase the Property during the Lease Term shall
not be disturbed if Buyer-Tenant performs its obligations under the terms of this Agreement and
performs all of Buyer-Tenant's obligations under this Agreement and is not otherwise in default.
If any ground lessor, beneficiary or mortgagee elects to have this Agreement prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to Buyer-Tenant, this
Agreement shall be deemed prior to such ground lease, deed of trust or mortgage whether this
Agreement is dated prior or subsequent to the date of said ground lease, deed of trust or
mortgage or the date of recording thereof.
Section 6.02 Attornment. If Seller-Landlord's interest in the Property is acquired by any ground
lessor, beneficiary under a deed of trust, mortgagee, or purchaser at a foreclosure sale, Buyer-
Tenant shall attorn to the transferee of or successor to Seller-Landlord's interest in the Property
and recognize such transferee or successor as Seller-Landlord under this Agreement subject to
such transferee or successor's agreement to take the Property subject to all of the terms of this
Lease including, without limitation, the Purchase Obligations. Buyer-Tenant waives the
protection of any statue or rule of law which gives or purports to give Buyer-Tenant any right to
terminate this Agreement or surrender possession of the Property upon the transfer of Seller-
Landlord's interest.
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Pag e 16 of 22
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For Seller-Landlord:
For Buyer-Tenant: -r..f2_
Section 6.03 Execution of Documents. Buyer-Tenant shall sign and deliver any instrument or
documents reasonably necessary or appropriate to evidence any such attornment or
subordination or agreement to do so .
Section 6.04 Estoppel Certificates Upon Seller-Landlord's, or its Lender's, written request,
Buyer-Tenant shall execute, acknowledge and deliver to Seller-landlord a written statement
certifying : (a) that none of the terms or provisions of this Agreement have been changed (or if
they have been changed, stating how they have been changed); (b) that this Agreement has not
been canceled or terminated; (c) the last date of payment of the Base Rent and other charges as
required by Section 1.04 of this Agreement, and the time period covered by such payment; (d)
that Seller-landlord is not in default under this Agreement (or, if Seller-Landlord is claimed to be
in default, stating why); and (e) such other representations or information with respect to Buyer-
Tenant or the Lease as Seller-Landlord may reasonably request or which any prospective
purchaser or encumbrancer of the Property may require. Buyer-Tenant shall deliver such
statement to Seller-Landlord within ten (10) days after Seller-Landlord's request, in a form
acceptable to Seller-Landlord. Seller-Landlord shall be entitled to give any such statement by
Buyer-Tenant to any prospective purchaser or encumbrancer of the Property. Such purchaser or
encumbrancer may rely conclusively upon such statement as true and correct.
Section 6.05 Waiver of Seller-Landlord Lien. Notwithstanding anything herein to the contrary,
Seller-Landlord shall not possess any "landlord's lien" under which Seller-Landlord would be
permitted to liquidate the assets at the Property and apply the proceeds of same to Buyer-
Tenant's obligations hereunder. However, the absence of a formal lack of said landlord's lien
shall not preclude Seller-Landlord from exercising its rights to remove Buyer-Tenant's property
from the Premises in the event that Buyer-Tenant fails to do so upon termination of this
Agreement. Seller -Landlord hereby agrees that it shall execute any commercially reasonable lien
waivers required by the Buyer-Tenant's lender in connection with Buyer-Tenant's financing
activities, i n confirmation of the foregoing.
ARTICLE 7 GENERAL PROVISIONS
Section 7 .01 Expenses . Each Party shall be solely responsible for all costs and expenses incurred
by it in connection with the negotiation, preparation, and performance of and compliance with
the terms of this Agreement.
Section 7.02 Further Assurances . Each Party shall execute all such instruments and take all such
actions as any other Party may reasonably request, without payment of further consideration, to
effectuate the transactions contemplated by this Agreement, including without limitation the
execution and delivery of confirmatory and other transfer documents in addition to those to be
delivered at Closing .
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recyclin g Holdings, LLC
Buyer -Tenan t: Circl e D Enterpr ises , LLC
Page 17 of 22
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For Sell er-Landlord:
For Buyer-Tenant: T.l2._
Section 7.03 Notices. Any notice required to be given under this Agreement shall be given in
writing as follows:
If to Seller:
Copy to:
ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC
Attn : Marvin S. Acey
3293 W. Jacob Astor Way
South Jordan, Utah 84095
Email: marvin [e-mail]
ROSA COMMERCE LTD.
Attn: Angelo L. Rosa
2211 East Camelback Road, No. 301
Phoenix, Arizona 85016
Tel. [phone]
Fax. (208} 515-2203
Email: arosa@rosacommerce .com
If to Buyer: CIRCLED ENTERPRISES, LLC
Attn: Troy Dorius
Copy to :
135 East 770 North
St . George, Utah 84770
Email: [e-mail]
BLANCHARD PATTISON LLC
Attn: Troy Blanchard
SO East 100 South, Suite 101
St. George, Utah 84770
Tel: [phone]
Fax: (435} 628-2444
Email : [e-mail]
Such notice shall be effective when actually delivered, when actually received by email with
confirmation of receipt (unless otherwise required by law), one business day after deposited with
a nationally recognized overnight courier (such as FedEx, UPS, DHL, etc.) or, if mailed, three
bus i ness days after deposited in the United States First Class Mail, certified or registered mail
postage prepaid, directed to the addresses shown near the beginning of this Agreement. Any
party may change its contact details for notices under this Agreement by giving formal written
notice to the other parties, specifying that the purpose of the notice is to change the party's
address. For notice purposes, Seller-Landlord and Buyer-Tenant agree to keep the other party
informed at all times of their respective current address in advance of formally changing those
contact details.
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LL C
Buyer-Tenant: Circle D Enterprises, LLC
Page 18 of 22
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For Seller-Landlord:
For Buyer-Tenant: -W..
Section 7.04 Severability. If a court of competent jurisdiction finds any prov1s1on of this
Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not
make the offending provision illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that it becomes legal, valid and
enforceable. If the offending provision cannot be so modified, it shall be considered deleted from
this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of
any provision of this Agreement shall not affect the legality, validity or enforceability of any other
provision of this Agreement.
Section 7.05 Binding Effect. Subject to any limitations stated in this Agreement, both the Lease
and the Purchase Obligation set forth herein shall be binding upon and inure to the benefit of the
parties, their successors and assigns .
Section 7.06 Authority of Signers. Both Seller-Landlord and Buyer-Tenant are limited liability
companies. Each person signing this Agreement on behalf of each party warrants his or her
authority to do so and to bind Buyer and Seller.
Section 7.07 Entire Agreement. This Commercial Real Estate Lease and Purchase Agreement,
together with any addenda, attached exhibits, and schedules, constitutes the entire agreement
between the Parties on the subject-matter addressed herein, and supersedes and replaces any
and all prior negotiations, representations, warranties, understandings or contracts between the
parties whether verbal or otherwise.
Section 7.08 Electronic Transmission and Counterparts. Electronic execution (e.g., digital
signatures, PDF) and electronic transmission (including e-mail, and facsimile} of a signed copy of
this Agreement, any addenda and/or exhibits, and the retransmiss ion of any signed electronic
transmission shall be the same as the delivery of an original. This Agreement and any addenda
and/or exhibits may be executed in counterparts.
Section 7.09 Modifications . This Agreement shall not be changed or otherwise modified except
by prior written agreement of the Parties.
Section 7.10 Governing Law. This Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the State of Utah without giving effect to
any choice or conflict of law provision or rule (whether of the State of Utah or any other
jurisdiction) that would cause the application of the laws of any jurisdiction. Any action or
proceeding concerning this Agreement shall be commenced in Washington County, State of Utah,
and the parties irrevocably consent to personal jurisdiction and venue in Washington County,
State of Utah.
Section 7.11 Attorney's Fees, Costs and Expenses . In the event of a dispute concerning this
Agreement the prevailing party shall be entitled to all costs, disbursements, and expenses,
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord: Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 19 of 22
Initials :
For Seller-Landlord:
For Buyer-Tenant: --ct)
including attorney's fees incurred in connection with the enforcement of this Agreement. These
include fees, costs and expenses incurred in connection with alternative dispute resolution, legal
expenses incurred in the course of bankruptcy (including efforts to modify or vacate any
automatic stay or injunction), appeals, civil litigation proceedings, and any anticipated post-
judgment collection services .
Section 7 .12 Holding Over. Any holding over after the expiration or earlier termination of the
Term without Seller-Landlord's prior written consent shall be a default of the Lease and shall not
be construed to be a tenancy from month to month. Base Rent during any such holdover period
shall be equal to one-hundred and twenty five percent (125%) of the Base Rent due under the
Lease immediately prior to such expiration or termination and such tenancy shall otherwise be
on the same terms and conditions specified in this Agreement. Nothing contained in this Section
shall be construed as consent by Seller-Landlord to any such holding over by Buyer-Tenant, and
unless otherwise agreed by Seller-Landlord, Buyer-Tenant shall surrender possession of the
Property to Seller-Landlord as provided in this Agreement upon the expiration or other
termination of this Agreement. The provisions of this Section shall not be deemed to li mit, or
constitute a waiver of, any other rights or remedies of Seller-Landlord provided herein or at law
or in equity and shall survive the expiration or earlier termination of this Agreement.
Section 7.13 Notice Of Purchase . Seller-Landlord and Buyer-Tenant shall, at Closing, execute a
memorandum of this Lease to be recorded in a form substantially in the form attached hereto as
Exhibit B," unless recordation would constitute a default of Seller-Landlord's existing l oan and/or
loan guaranty covenants with its current lender.
Section 7.14 Liens. In the event that any mechanic's or other lien, notice of lien, encumbrance
or charge is filed against all or any portion of the Property by reason of any act or omission of
Buyer-Tenant, or its employees, agents or contractors, or in connection with any claim against
Buyer-Tenant, Buyer-Tenant shall cause the same to be canceled and discharged of record by
payment, deposit, letter of credit, bond or otherwise within thirty (30) days after written notice
thereof from Seller-Landlord or any other person. If Buyer-Tenant fails to cause such lien or notice
of lien to be discharged within such period, Seller-Landlord, or Seller-Landlord's lend e r, may, but
shall not be obligated to, discharge the same either by paying the amounts claimed to be due or
by procuring the discharge of such lien by deposit, bond or otherwise, and Buyer-Tenant shall ,
immediately upon demand, reimburse Seller-Landlord or Seller-Landlord's lender for any and all
costs and expenses incurred to discharge such lien including, without limitation, all attorneys'
fees, court costs and similar expenses . In addition, Buyer-Tenant shall indemnify and hold Seller-
Landlord, and Seller-Landlord's lender, if any, harmless from and against all loss, cost, expense
and liability whatsoever resulting or occurring by reason of any claims or causes of actions that
may arise as a r esult of any lien, notice of lien or, claim relating to work and/or materials
furnished to the Property at the request of Buyer-Tenant, its employees, agents or contractors .
.,
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Se ller-Landlord : Ro cky Mountain Recyclin g Holdings, LLC
Bu y er-Tenant: Circl e D Enterpr ises, LLC
Page 20 of 22
Initials:
For Seller-Landlord:
For Buyer-Tenant: --:c:12._
Section 7.15 Surrender. Upon t h e expiration or early termination of the Lea se, Buyer-Tenant
shall have the right, at Buyer-Tenant's so le cost and expe nse, to remove its personal property,
equ ipment and fixtures a nd sha ll peacefully su rre nd er possession of the Premises, free from
any damage caused by Buyer-Tenant's negligence and subj ect to damage caused by fire or other
casualty, acts of God and acts of governmental authorities, r easonab le wear and tear excepted,
and free from all personal property, eq u ipment and fixtures of Buyer-Tenant, and sha l l repair a ll
damages caused by such removal.
IN WITNESS WHEREOF, Seller-Landlord and Buyer-Tenant have each voluntarily sign e d
this Agreement consisting of twenty-two one (22) pages plus Exhibits, to be effective as July 1,
2023.
For Seller-Lan dlord:
ROCKY MOUNTAIN RECYCLING HOLDING S, LLC
Signed: -~-•-------
By: John K. Sasin¾e
It s: Manag~/'~1
Dated: ~/---,.,.,;
-----'"---+, ---------
STAT E OF UTAH
County of Salt Lake
) ss .
)
Subscribed and sworn to before me on this el_ day of August 2023 by John K. Sasine .
NOTARY PUBLIC ~~
Deyd1 Lomiiae G lril)'COI •
Comm . No. 719839 _...,........._,.,._-=-----+-+----------
My Commission Bllpi1L'!I Nota ry Publ ic
081l0/Z025
~T/\1 e. CW UTAH
For Buyer-Tenant:
COMMERCIAL REAL ESTATE LEASE ANO PURCHASE AGREEMENT
Seller-Landlord : Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circl e D Enterprises, LLC
Page 21 of 22
Initia ls : __ .... "::>
For Seller-Land l o . __
For Buyer-Tenant:
CIRCLE D ENTERPRISES, LLC
!~ned:~
Its: 446::h;;'l /4?=1 =
Dated ~~/-~
STATE OF UTAH
County of Washington
) ss.
)
Subscribed and sworn to before me on this \
]ID"'?) ·:Dor ms. (signer name).
COMMERCIAL REAL ESTATE LEASE AND PURCHASE AGREEMENT
Seller-Landlord : Rocky Mountain Recycling Holdings, LLC
Buyer-Tenant: Circle D Enterprises, LLC
Page 22 of 22
day of August 2023 by
NOTARY PUBLIC
TARA KIMBER
723330
My Commission Expires
03/0 J/2026
STATE OF UTAH
Initials:
For Seller-Landlord:
For Buyer-Tenant: 'JJ2_
Exhibit A
Title Committment
[copy attached]
Exhibit B
NOTICE OF LEASE AND PURCHASE OBLIGATIONS
THIS NOTICE OF LEASE AND PURCHASE OBLIGATION (this "Notice") is made as of the
___ day of _____ _, 2023, ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC , a Utah
limited liability company ("Seller•landlord") and CIRCLE D ENTERPRISES, LLC, a Utah limited
liability company ("Buyer-Tenant") (each, a "Party" and sometimes collectively referred to as
"the Parties").
A. Seller-Landlord is the fee simple title owner of that certain parcel of property
legally described on the Schedule attached hereto and made a part hereof (the "Property");
8. Seller-Landlord and Buyer-Tenant have entered into that certain COMMERCIAL
REAL ESTATE LEASE AND PURCHASE AGREEMENT dated as of _____ , 2023 (the "Lease "),
pursuant to which Seller-Landlord has agreed to lease to Buyer-Tenant the Property upon the
terms and conditions set forth in the Lease and grant to Buyer-Tenant the right and obligation to
purchase the Property; and
C. Seller-Landlord and Buyer• Tenant now desire give notice of the Lease .
NOW, THEREFORE, for and in consideration of the rents reserved and the covenants and
conditions set forth in the Lease, Seller-Landlord and Buyer•Tenant hereby give notice as follows :
1. The Lease is effective for a term commencing on ______ _, 2023, and
ending on ________ ___, 2028
2. The Lease provides for the payment of Base Rent and other items.
3. The Lease contains an obligation for the Buyer-Tenant to purchase the Property
from the Seller-Landlord for a price set forth in the Lease .
4 . Reference should be made to the Lease for more particular terms.
IN WITNESS WHEREOF, the parties hereto have caused this Notice to be executed by t heir
duly authorized representatives as of the day and year first above written.
For Seller•landlord:
ROCKY MOUNTAIN RECYCLING HOLDINGS, LLC
¥·3
Signed:-::...~;;;,:;rr 2
By: John K. Sasine
STATE OF UTAH
County of Sa lt Lak e
) ss.
)
Subscribe d a nd sworn to b efore me on this O ( day of August 2023 by John K. Sasine.
NOT/\H.Y PUBLIC
lk,>da Lomime G&l'llyCOII
Comm . No. 719839
My Cnmmi!!,i on Expirct1
0R/1012025
S"l'ATP. or UTAli
For Buyer-Tenant:
CIRCLED ENTERPRISES, LLC
~~L N-0ty Public
Sign ed: ____________ _
By:
Its:
Dated : -------------
STATE OF UTAH
County of Wa shington
) ss.
)
Subscribed and sworn to before m e on this _ day of August 2023 by
________ (signer name).
Notary Publ ic
Its: Manager
Dated: ____________ _
STATE OF UTAH
County of Salt Lake
) ss.
)
Subscribed and sworn to before me on this_ day of August 2023 by John K. Sasine.
For Buyer-Tenant:
CIRCLE D ENTERPRISES, LLC
STATE OF UTAH
County of Washington
=---
Notary Public
) ss.
)
Subscribed and sworn to before me on this _l_ day of August 2023 by
1\0\hIX5Y\\)S (signer name).
NOTARY PUBLIC -,
TARA KIMBER
723 330
My Corruni • . ssion Expires
03101/2026
STATii OF UTAH
EXECUTION DRAFT
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
This BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment") is
executed to be effective on 1 August 2023 ("Effective Date") by ROCKY MOUNTAIN RECYCLING,
LLC, a Utah limited liability company ("Seller") in favor of CIRCLE D ENTERPRISES, LLC, a Utah
limited liability company ("Buyer")) (each a "Party" and collectively sometimes referred to as the
"Parties") as follows:
WHEREAS, Buyer and Seller entered into that certain Asset Purchase and Sale Agreement
having an effective date of 1 August 2023 (the "APA"), whereby Buyer agreed to purchase from
Seller those certain items of personal property which are specifically itemized in "Exhibit A" to
this Assignment (the "RMR Assets");
WHEREAS, subject to the terms and conditions of the APA and this Assignment, Seller is
executing this Assignment for the purpose of transferring to and vesting in Buyer all of Seller's
right, title and interest in and to the RMR Assets itemized in Exhibit A; and
WHEREAS, the execution and delivery of this Assignment is required under the Asset
Purchase Agreement,
NOW, THEREFORE, in consideration of the foregoing premises and as an integral and
necessary part of the transfer to Buyer of the Assets under the terms of the APA, the Parties
hereto agree as follows:
1. Asset Transfer. Seller hereby conveys, bargains, sells, assigns and transfers and
sets over unto Buyer, all of Seller's right, title and interest in and to the assets of Seller, as
identified in Exhibit A hereto.
2. Assignment and Assumption of Liabilities . The terms and provIsIons of the
assumption of liabilities by Purchaser set forth in the APA identify the full extent to which
assignment and assumption of liabilities are made with respect to the RMR Assets. This
Assignment shall not expand or modify Buyer's liability.
3. Excluded Assets.:. For avoidance of doubt, the RMR Assets conveyed hereunder
are limited to those itemized in Exhibit A. The Excluded Assets, as defined in Section 1.05 of the
APA are not, and shall not be, conveyed to Buyer, and shall be retained by Seller.
4. Conditions of Sale. This Assignment is subject to all of the terms, conditions and
limitations set forth in the APA . Nothing contained in this Assignment shall (a) modify the
obligations of each Party as set forth in the APA, (b) release the Seller or Buyer from any of their
respective obligations under the APA or the Security Agreement executed with respect to the
RMR Assets, or (c) in any way diminish, limit, enlarge or modify any of the representations,
warranties, indemnities, covenants, agreements or in general, any rights and remedies, and any
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer: Circle D Enterprises, LLC
Seller: Rocky Mountain Recycling, LLC
Page 1 of 2
Initials:
For Buyer: T .l>
For Seller:
EXECUTION DRAFT
of the obligations of such parties set forth in the APA . Solely between the Seller and Buyer, in
the event of any conflict or inconsistency between the terms of the APA and the terms hereof,
the terms of the APA shall govern .
5 . Assets as Collateral. Seller conveys, transfers, assigns , and vests the RMR Assets
identified in Exhibit A to Buyer subject to, and upon the express cond itions of, the terms of that
certain Promissory Note and Security Agreement executed in favor of Seller concurrently with
this Assignment, whereby the RMR Assets shall be pledged as collateral to secure repayment of
the Promissory Note .
6. Additional Actions. Each Party agrees to take all additional actions necessary and
to execute, acknowledge and deliver any and all documents which either Party may reasonably
request in order to effect the intent and purpose of this Assignment and the transfer of
ownership interests contemplated hereby.
7 . General Provisions. All General Provisions set forth in Article 13 of the APA are
incorporated hereto by reference and shall apply to this Assignment as though set forth
completely.
IN WITNESS WHEREOF, Seller has executed, and Buyer has acknowledged, this
Assignment, total i ng three (3) pages (consisting of two (2) pages for the body of the agreement
and a one (1) page exhibit), to be effective as of 1 August 2023 .
FOR SELLER:
By ROCKY MOUNTAIN RECYCLING, LLC:
Signed:
Printed:
Its :
FOR BUYER:
John K. Sasine
Manager
By CIRCLE D ENTERPRISES, LLC:
Signed:
Printed:
Its :
Troy Darius
Manager
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer : Circle D Enterpr ises , LLC
Seller: Rocky Mountain Recycling , LLC
Page 2 of 2
Initials :
For Buyer :
For Selle . .;.;r:=-::;;aiipll!ll[ll4-illl!!!!:::::>::::
EXECUTION DRAFT
of the obligations of such parties set forth in the APA. Solely between the Seller and Buyer, in
the event of any conflict or inconsistency between the terms of the APA and the terms hereof,
the terms of the APA shall govern .
5. Assets as Collateral. Seller conveys, transfers, assigns, and vests the RMR Assets
identified in Exhibit A to Buyer subject to, and upon the express conditions of, the terms of that
certain Promissory Note and Security Agreement executed in favor of Seller concurrently with
this Assignment, whereby the RMR Assets shall be pledged as collateral to secure repayment of
the Prom issory Note.
6. Additional Actions:. Each Party agrees to take all additional actions necessary and
to execute, acknowledge and deliver any and all documents which either Party may reasonably
request in order to effect the intent and purpose of this Assignment and the transfer of
ownership interests contemplated hereby.
7. General Provisions . All General Provisions set forth in Article 13 of the APA are
incorporated hereto by reference and shall apply to this Assignment as though set forth
completely.
IN WITNESS WHEREOF, Seller has executed, and Buyer has acknowledged, this
Assignment, totaling three (3) pages (consisting of two (2) pages for the body of the agr eement
and a one (1) page exhibit), to be effective as of 1 August 2023 .
FOR SELLER:
By ROCKY MOUNTAIN RECYCLING, LLC :
Signed :
Printed :
Its:
FOR BUYER:
John K. Sasine
Manager
By CIRCLE D ENTERPRISES, LLC :
Signed :
Printed:
Its: Manage r
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer : Ci rcle D Enterpr ise s, LLC
Sell er : Rocky Mountai n Recycling, LLC
Page 2 of 2
Initials:
Fo r Bu yer: TD
For Seller :
EXHIBIT A
TO
EXECUTION DRAFT
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULE OF ASSETS (ROCKY MOUNTAIN RECYCLING, LLC]
No. Asset Description
1 Files and Records Copies of all files, documents, records, and books
of account (or copies thereof) relating to the
operation of the St. George Plant, including
statistical data, information and studies, technical
information, engineering data, marketing and
demographic data, sales correspondence, credit
and sales reports, and logs
2 Inventory Any commodity materials processed for sale in the
ordinary course of Sellers' business at the St.
George Plant at the time of Closing
3 Client/Customer Accounts All customer relationships served by and/or
fulfilled through, the St. George Plant.
4 Goodwill All of Seller's goodwill and going concern value of
the St. George Plant, together with those assets
necessary to continue to benefit from such
goodwill, including (without limitation) signage,
the right to use the name "Rocky Mountain
Recycling", the internet domain name
"rockymountainrecyclingstg.com,"
all emails and phone numbers associated with the
St. George Plant and official company numbers
used by customers to communicate with the St.
George Plant.
EXHIBIT A TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer: Circle D Enterprises, LLC
Seller: ROCKY MOUNTAIN RECYCLING, LLC
Page 1 of 1
EXECUTION DRAFT
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
This BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment"} is
executed to be effective on 1 August 2023 ("Effective Date"} by ROCKY MOUNTAIN PROCESSING,
LLC, a Utah limited liability company ("Seller"} in favor of CIRCLE D ENTERPRISES, LLC, a Utah
limited liability company ("Buyer"} ") (each a "Party" and collectively sometimes referred to as
the "Parties"} as follows:
WHEREAS, Buyer and Seller entered into that certain Asset Purchase and Sale Agreement
having an effective date of 1 August 2023 (the "APA"}, whereby Buyer agreed to purchase from
Seller those certain items of personal property which are specifically itemized in "Exhibit A" to
this Assignment (the "RMP Assets"};
WHEREAS, subject to the terms and conditions of the APA and this Assignment, Seller is
executing this Assignment for the purpose of transferring to and vesting in Buyer all of Seller's
right, title and interest in and to the RMP Assets itemized in Exhibit A; and
WHEREAS, the execution and delivery of this Assignment is required under the Asset
Purchase Agreement,
NOW, THEREFORE, in consideration of the foregoing premises and as an integral and
necessary part of the transfer to Buyer of the Assets under the terms of the APA, the Parties
hereto agree as follows :
l. Asset Transfer . Seller hereby conveys, bargains, sells, assigns and transfers and
sets over unto Buyer, all of Seller's right, title and interest in and to the assets of Seller, as
identified in Exhibit A hereto.
2. Assignment and Assumption of Liabilities. The terms and prov1s1ons of the
assumption of liabilities by Purchaser set forth in the APA identify the full extent to which
assignment and assumption of liabilities are made with respect to the RMP Assets . This
Assignment shall not expand or modify Buyer's liability.
3. Excluded Assets:. For avoidance of doubt, the RMP Assets conveyed hereunder
are limited to those itemized in Exhibit A. The Excluded Assets, as defined in Section 1.05 of the
APA are not, and shall not be, conveyed to Buyer, and shall be retained by Seller.
4 . Conditions of Sale. This Assignment is subject to all of the terms, conditions and
limitations set forth in the APA . Nothing contained in this Assignment shall (a) modify the
obligations of each Party as set forth in the APA, (b} release the Seller or Buyer from any of their
respective obligations under the APA or the Security Agreement executed with respect to the
RMP Assets, or (c} in any way diminish, limit, enlarge or modify any of the representations,
warranties, indemnities, covenants, agreements or in general, any rights and remedies, and any
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT Initials:
Buyer : Circle D Enterprises, LLC For Buyer: T J)
Seller : Rocky Mountain Processing, LLC For Seller: ---:rJ2
Page 1 of 2
EXECUTION DRAFT
of the obligations of such parties set forth in the APA. Solely between the Seller and Buyer, in
the event of any conflict or inconsistency between the terms of the APA and the terms hereof,
the terms of the APA shall govern.
5. Assets as Collateral. Seller conveys, transfers, assigns, and vests the RMP Assets
identified in Exhibit A to Buyer subject to, and upon the express conditions of, the terms of that
certain Promissory Note and Security Agreement executed in favor of Seller concurrently with
this Assignment, whereby the RMP Assets shall be pledged as collateral to secure repayment of
the Promissory Note.
6. Additional Actions. Each Party agrees to take all additional actions necessary and
to execute, acknowledge and deliver any and all documents which either Party may reasonably
request in order to effect the intent and purpose of this Assignment and the transfer of
ownership interests contemplated hereby.
7. General Provisions. All General Provisions set forth in Article 13 of the APA are
incorporated hereto by reference and shall apply to this Assignment as though set forth
completely.
IN WITNESS WHEREOF, Seller has executed, and Buyer has acknowledged this
Assignment, totaling four (4) pages (consisting of two (2) pages for the body of the document and
two (2) pages of exhibits), to be effective as of 1 August 2023.
FOR SELLER:
By ROCKY MOUNTAIN PROCESSING, LLC:
Signed:
Printed:
Its:
FOR BUYER:
John K. Sasine
Manager
By CIRCLE D ENTERPRISES, LLC:
Signed:
Printed:
Its :
Troy Darius
Manager
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer: Circle D Enterprises, LLC
Seller: Rocky Mountain Processing, LLC
Page 2 of 2
Initials:
For Buyer:
For Seller:
EXECUTION DRAFT
of the obligations of such parties set forth in the APA. Solely between the Seller and Buyer, in
the event of any conflict or inconsistency between the terms of the APA and the terms hereof,
the terms of the APA shall govern.
5 . Assets as Collateral. Seller conveys, transfers, assigns, and vests the RMP Assets
identified in Exhibit A to Buyer subject to, and upon the express conditions of, the terms of that
certain Promissory Note and Security Agreement executed in favor of Seller concurrently with
this Assignment, whereby the RMP Assets shall be pledged as collateral to secure repayment of
the Promissory Note.
6. Additional Actions.! Each Party agrees to take all additional actions necessary and
to execute, acknowledge and deliver any and all documents which either Party may reasonably
request in order to effect the intent and purpose of this Assignment and the transfer of
ownership interests contemplated hereby.
7. General Provisions. All General Provisions set forth in Article 13 of the APA are
incorporated hereto by reference and shall apply to this Assignment as though set forth
completely.
IN WITNESS WHEREOF, Seller has executed, and Buyer has acknowledged this
Assignment, totaling four (4) pages (consisting of two (2) pages for the body of the document and
two (2) pages of exhibits), to be effective as of 1 August 2023 .
FOR SELLER:
By ROCKY MOUNTAIN PROCESSING, LLC:
Signed:
Printed:
Its:
John K. Sasine
Manager
FOR BUYER:
By CIRCLE O ENTERPRISES, LLC:
Signed:
Printed: ~-=,,:. TrovD ius
Its: Manager
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Buyer: Circle D Enterprises, LLC
Seller: Rocky Mountain Processing, LLC
Page 2 of 2
Initials:
For Buyer: TJ)
For Seller :
EXECUTION DRAFT
EXHIBIT A
TO
BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
SCHEDULE OF ASSETS [ROCKY MOUNTAIN PROCESSING, LLC]
No . Asset Serial Number
1 Hyundai Forkli ft 3035 HHKHHL04JH000301
2 Rightline Rotating Head on 3035 175340
3 Hyundai Fork li ft 3036 04JH00003
4 CAT Loader 2023 F5K02700
5 BHS Sort System All Components 1738
6 Metering lnfeed 1738-10.0-0408
7 Inclined lnfeed 1738-11. 0-0408
8 Pre-Sort Converyor 1738-12 .0-0408
9 OCC Seperator 1738-13.0-1408
10 Pre -Sort Platform 1738-50.0 -1808
11 BHS OCC Seperator Platform 1738-51.0-0408
12 BHS Motor Control 1738-80.0 -0408
13 OCC Ove rs Chute 1738-150.0-0408
14 Fa irbanks Platform Sc ale #1 (w digital readout) M08142020027
15 Fairbanks Digital Readout 71140100142
16 HRBlOA with Pinnacle Strapper 1981
17 Karl W. Schmidt Conveyor 11807846
18 1114 Ecoblocks
19 Lincoln Electric Welder U1070905918
20 Ptarmigi n Sort System RMR #0042
21 A i r Compressor 4 HP 80 Gallon Ll/10/07-00082
22 Ingersoll Rand Air Compre ss o r by Baler 506270109
23 70 ' MidAmerica Truck Scale 113056
24 Rice Lake Digital Read Out 1601200102
25 Portable Dock RMR #00049
26 Portable Dock NSN -3990 01-XX X
27 Se a Container 4841204-7
28 Se a Container NOLU455256-0
29 Sea Container GSTU867162-8
30 Sea Conta iner CSTU867991-2
EXHIBIT A TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Bu yer: Circle D Enterprises, LLC
Sell er : Rocky Mountain Process ing, LLC
Page 1 of 2
Model
Number
R0658-48C
93OM
FB -2200-2
PS -76635
HS781003AJ
TS7011
7201-2A
EXECUTION DRAFT
31 6 Yard Bins 8 pieces
32 4 Yard Bins 4 pieces
33 7 Yard Bins 6 pieces
34 Palletainers with No Whee ls 6 pieces
35 lnnovX Systems Metal Gun 2011 511131 DP-2000
36 HP Laserjet Pro MFP 4101 FDWE CN598-80017
37 Radiation Detector
38 Wire Feed LN25
39 2007 International 9200 I / Day Cab 2HSCEAPRX7C429553 Unit No . 237
40 2003 Freightliner Day Cab 1FUJA6AS43LK58165 Unit No . 238
41 1999 Comm 53 ' Van 1PTO4KAH2X9003041 Unit No . 488
42 1999 Trailmobile 53 ' Van 1PTO4KAH8X9003061 Unit No. 486
43 1995 Gr eat Dane 53 ' Van 1GRAA0620SB181575 Unit No . 496
44 2004 Stoughton 53' Van 1DW1A532X4S675015 Unit No. 4133
45 2005 Twamco Drop Deck 1T9ST482651473006 Unit No . 523
46 1990 Trailer 1PTF7ATJSL9001810 Unit No. 565
47 Toyota Forklift 32950 Unit No . 3003
48 Flammable cabinets (4)
49 Employee lockers (2)
so Press ure washe rs (2)
51 Cut off saws (6)
52 Electric Blowers (2)
53 Ai r compressor shop (1)
54 Lincoln welder (on skid) (1)
55 Dri ll presses (2)
56 Generators (2)
57 Man lift gates (2)
58 Gas bottles/cyilinders (6)
59 Pallet jacks (4)
60 Honda Ranch er 4-Wheeler
61 Lincoln Electric, LN-25 suitcase welder
62 Porta power jack (1)
63 Gas trolleys (2)
64 Portable fire suppress ion sy stem (2300
gal s/Honda WH20XT gas w at er pup & two (2)
SO -foot lengths of fire hose
EXHIBIT A TO BILL OF SALE, ASSIGNMENT AND ASSUMPTION AGREEMENT
Bu yer: Ci r cl e D Enterprises, LLC
Se ller: Rocky M o unta in Processing, LL C
Page 2 of 2
UNANIMOUS JOINT WRITTEN CONSENT TO ACTION
OF THE MANAGERS AND MEMBERS OF
CIRCLE D ENTERPRISES, LLC
The undersigned, constituting all of the Managers and all of the Members of Circle D Enterprises,
LLC (the "Company"), a Utah limited liability company, do hereby consent in writing to the actions set
forth in the following resolutions:
WHEREAS, the Managers and the Members have evaluated the purchase by the Company
of those certain assets of Rocky Mountain Processing, LLC, a Utah limited liability company
("RMP"), Rocky Mountain Recycling, LLC, a Utah limited liability company ("RMR"), and
Rocky Mountain Recycling Holdings , LLC, a Utah limited liability company (each a "Seller" and
collectively the "Sellers") pursuant to that certain Asset Purchase and Sale Agreement among
Sellers and the Company in the form reviewed by the undersigned (the "Purchase Agreement").
WHEREAS, the Managers and the Members believe it is in the Company's best interests
to authorize, approve and enter into the Purchase Agreement and to consummate the transactions
contemplated by the Purchase Agreement, including without limitation executing the Promissory
Note, Security Agreement, Commercial Real Estate Lease and Purchase Agreement and the other
documents referenced therein (the "Ancillary Documents").
NOW, THEREFORE, BE IT RESOLVED, that the Purchase Agreement and Ancillary
Documents are hereby authorized and approved in all respects and Skylar Dorius and/or Troy
Dorius (each acting alone or together), each as a Manager of the Company, is hereby authorized
and directed to execute and deliver the Purchase Agreement and Ancillary Documents to the Seller.
RESOLVED FURTHER, that all other agreements , instruments, certificates and
documents necessary to consummate the transactions contemplated by the Purchase Agreement,
including, without limitation, the Ancillary Documents (such other agreements, instruments,
certificates and documents, including, without limitation, the Ancillary Documents, being referred
to collectively as the "Transaction Documents") are hereby authorized and approved in all respects
including such changes to the Transaction Documents and/or Purchase Agreement as either Skylar
Dorius and/or Troy Dorius, each as a Manager of the Company, in his or their sole discretion,
determines to be necessary or appropriate to consummate the transactions contemplated thereby.
RESOLVED FURTHER, that Skylr Dorius and/or Troy Dori us , each as a Manager of the
Company ( each authorized to execute the Transaction Documents alone as a Manager without the
signature of the other) be, and he hereby is, authorized and directed, on behalf of the Company, to
execute and deliver the Transaction Documents, and to cause the Company to perform its
obligations under the Purchase Agreement and Transaction Documents, subject to the terms and
conditions thereof.
RESOLVED FURTHER, that all prior lawful actions taken by Skylar Dori us and/or Troy
Dorius, each as a Manager of the Company with respect to the preparation and negotiation of the
Purchase Agreement and Transaction Documents be, and each of them hereby is , authorized,
ratified and approved in all respects.
IN WITNESS WHEREOF, the undersigned have signed this instrument as of the day and
year first above written.
MANAGERS:
~
Skylar Dorius, Manager
MEMBERS:
'Skyia(Dorius, Member
c;~? TroyDorius ~er
'5?~ Troy Dori ~ber
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