Exhibit 10.3
MASTER LEASE AGREEMENT
BETWEEN
BLUE RHINO CORPORATION,
LANDLORD,
AND
R4 TECHNICAL CENTER - NORTH CAROLINA, LLC,
TENANT
FOR
PREMISES LOCATED AT
1309 BUCK SHOALS ROAD
YADKIN COUNTY, NORTH CAROLINA
TABLE OF CONTENTS
PAGE
Article 1 Definitions........................................................1
1.1 Additional Rent................................................1
1.2 Affiliate......................................................1
1.3 Agents.........................................................1
1.4 Alterations....................................................1
1.5 Base Rent......................................................1
1.6 Buildings......................................................2
1.7 Calendar Year..................................................2
1.8 Commencement Date..............................................2
1.9 Equipment......................................................2
1.10 Event of Default...............................................2
1.11 Expiration Date................................................2
1.12 Herein, hereafter, hereunder and hereof........................2
1.13 Interest Rate..................................................2
1.14 Land...........................................................2
1.15 Lease Year.....................................................2
1.16 Mortgage.......................................................3
1.17 Mortgagee......................................................3
1.18 Permitted Use..................................................3
1.19 Premises.......................................................3
1.20 Project........................................................3
1.21 Rent...........................................................3
1.22 Rules and Regulations..........................................3
1.23 Security Deposit...............................................3
1.24 Substantial Part...............................................3
1.25 Taxes..........................................................3
1.26 Term...........................................................3
Article 2 The Premises and Additional Equipment..............................3
2.1 Lease of Premises..............................................3
2.2 Covenants of Record............................................4
2.3 Additional Equipment...........................................4
2.4 Ordering, Delivery and Acceptance of Additional Equipment......4
Article 3 Term and Purchase Options..........................................5
3.1 Term...........................................................5
3.2 Termination for Failure to Close...............................5
3.3 Option to Purchase at End of Lease.............................5
3.4 Early Buy-out Price...........................................7
3.5 Independent Appraisal..........................................7
Article 4 Rent...............................................................7
4.1 Base Rent......................................................7
4.2 Payment of Base Rent...........................................8
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4.3 Additional Rent................................................8
4.4 Net Lease......................................................8
Article 5 Security Deposit...................................................9
5.1 General........................................................9
5.2 Application of Security Deposit................................9
5.3 Escrow Agreements..............................................9
Article 6 Taxes.............................................................10
6.1 Payment of Taxes..............................................10
6.2 Estimated Payments............................................10
6.3 Actual Taxes..................................................10
6.4 Tax Escrow....................................................11
Article 7 Use...............................................................11
7.1 Use of Premises and Additional Equipment......................11
7.2 [Intentionally Omitted].......................................11
Article 8 Assignment and Subletting.........................................11
8.1 Consent Required..............................................11
8.2 Exception for Affiliates......................................11
8.3 Tenant to Remain Liable.......................................12
Article 9 Maintenance and Repair; Operation of Premises.....................12
9.1 Tenant's Obligation...........................................12
9.2 Landlord's Right to Maintain or Repair........................13
9.3 Approval of Service Contracts.................................13
9.4 Security......................................................13
9.5 Assignment of Warranties......................................13
Article 10 Alterations......................................................13
10.1 Alterations...................................................13
10.2 Removal of Alterations........................................14
Article 11 Mechanic's Liens.................................................14
Article 12 Signs............................................................15
Article 13 Tenant's Equipment and Property..................................15
13.1 Moving Tenant's Property......................................15
13.2 Installing and Operating Tenant's Equipment...................15
Article 14 Right of Entry...................................................15
Article 15 Insurance........................................................16
15.1 Insurance Rating..............................................16
15.2 Liability Insurance...........................................16
15.3 Insurance for Personal Property...............................16
15.4 Requirements of Insurance Coverage............................16
15.5 Waiver of Subrogation.........................................17
15.6 Landlord's Insurance..........................................17
15.7 Reimbursement for the Cost of Landlord's Insurance............17
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Article 16 Utilities........................................................17
16.1 Payment of Utilities..........................................17
16.2 No Back-Up Systems............................................18
Article 17 Liability of Landlord............................................18
17.1 Limit on Landlord's Liability.................................18
17.2 Personal Property at Tenant's Risk; No Consequential Damages..18
Article 18 Rules and Regulations............................................18
Article 19 Damage; Condemnation.............................................19
19.1 Damage to the Premises........................................19
19.2 Condemnation..................................................20
Article 20 Default..........................................................20
20.1 Events of Default.............................................20
20.2 Landlord's Remedies...........................................21
20.3 Rights Upon Possession........................................22
20.4 No Waiver.....................................................22
20.5 Right of Landlord to Cure Tenant's Default....................22
20.6 Late Payment..................................................23
20.7 Landlord Default..............................................23
Article 21 Mortgages........................................................23
21.1 Subordination.................................................23
21.2 Mortgagee Protection..........................................24
21.3 Modification Due to Financing.................................24
Article 22 Surrender; Holding Over; Prorations..............................24
22.1 Surrender of the Premises.....................................24
22.2 Holding Over..................................................25
22.3 Prorations....................................................25
Article 23 Quiet Enjoyment..................................................25
Article 24 Tenant's Covenants Regarding Hazardous Materials.................26
24.1 Definition....................................................26
24.2 Existing Hazardous Materials..................................26
24.3 General Prohibition...........................................26
24.4 Indemnification...............................................27
24.5 Notice........................................................27
24.6 Survival......................................................28
Article 25 Miscellaneous....................................................28
25.1 No Representations by Landlord................................28
25.2 No Partnership................................................28
25.3 Brokers.......................................................28
25.4 Estoppel Certificate..........................................28
25.5 No Counterclaims..............................................29
25.6 Notices.......................................................29
25.7 Invalidity of Particular Provisions...........................29
25.8 Gender and Number.............................................29
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25.9 Benefit and Burden............................................29
25.10 Entire Agreement..............................................29
25.11 Authority.....................................................30
25.12 Attorneys' Fees...............................................30
25.13 Interpretation................................................30
25.14 No Personal Liability; Sale...................................30
25.15 Force Majeure.................................................30
25.16 Headings......................................................31
25.17 Memorandum of Lease...........................................31
25.18 Effectiveness.................................................31
25.19 Governing Law.................................................31
LIST OF EXHIBITS
Exhibit A Legal Description of the Land
Exhibit B Description of the Buildings
Exhibit C Description of the Equipment
Exhibit D Rules and Regulations
Appendix A Equipment Schedule
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MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT (this "Lease") is made as of the 30th day of
September, 2001, by and between BLUE RHINO CORPORATION, a Delaware corporation
("Landlord"), and R4 TECHNICAL CENTER B NORTH CAROLINA, LLC, a Delaware limited
liability company ("Tenant").
R E C I T A L S:
A. Contemporaneously with the execution of this Lease, Landlord and Tenant
are entering into, among other things, an Agreement to Purchase and Sell Real
Property (the "Contract"), pursuant to which Tenant shall sell, and Landlord
shall purchase, the Land, the Buildings and the Equipment (each as defined
below) pursuant to, and in accordance with, the terms of such Contract; and
B. Landlord has agreed to lease back to Tenant, and Tenant has agreed to
lease from Landlord, the Land, the Buildings and the Equipment pursuant to, and
in accordance with, the terms and conditions of this Lease.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Landlord and Tenant covenant and agree as follows:
ARTICLE 1 DEFINITIONS
The following capitalized terms, when used in this Lease, shall have the
meanings set forth below. Other capitalized terms used in this Lease shall have
the meanings as set forth in the text of the Lease.
1.1 Additional Rent. As defined in Section 4.3.
1.2 Affiliate. Any successor to Tenant upon merger, reorganization or
consolidation and any other entity now or hereafter that (i) controls Tenant or
any successor to Tenant, (ii) is controlled by Tenant or any successor to
Tenant, or (iii) is controlled by the same entity that controls Tenant or any
successor to Tenant.
1.3 Agents. Officers, partners, directors, employees, agents, licensees,
customers, contractors and invitees.
1.4 Alterations. Alterations, decorations, additions or improvements of any
kind or nature to the Premises or to any Additional Equipment (as defined in
Section 2.4), whether structural or non-structural, interior, exterior or
otherwise, that are made by Tenant or its Agents on or after the Commencement
Date, including any "Allowed Alterations" (as defined in Section 10.1).
"Alterations" shall not include any of Tenant's personal property.
1.5 Base Rent. The Base Rent for the Premises shall be as follows:
Lease Year Annual Base Rent Monthly Installment
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First $759,884.00 $63,324.00
Second $759,884.00 $63,324.00
Third $759,884.00 $63,324.00
The Base Rent for any Additional Equipment shall be as provided in the Equipment
Schedule with respect to such Additional Equipment.
1.6 Buildings. The four (4) buildings located on the Land, consisting of
(i) the office building containing approximately 4,930 square feet, (ii) the
production building containing approximately 23,900 square feet, (iii) the
warehouse building containing approximately 17,955 square feet, and (iv) the
service building containing approximately 4,800 square feet, all as more
particularly described in Exhibit B, all alterations, additions, improvements,
restorations and replacements made thereto, and all other improvements located
on the Land.
1.7 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall be that
period from and including the Commencement Date through December 31 of that same
year, and the last Calendar Year shall be that period from and including the
last January 1 of the Term through the earlier of the Expiration Date or date of
Lease termination.
1.8 Commencement Date. The day after the "Closing Date" (as hereafter
defined). The term "Closing Date" means the date of closing of the Agreement to
Purchase and Sell Real Property, dated as of September 30, 2001 between Landlord
(as purchaser) and Tenant (as seller), pursuant to which the Land, the Buildings
and the Equipment will be sold to Landlord.
1.9 Equipment. The equipment, as more particularly described in Exhibit C,
installed in the Buildings and all additions thereto and substitutions and
replacements therefor.
1.10 Event of Default. As defined in Section 20.1.
1.11 Expiration Date. The last day of the third Lease Year.
1.12 Herein, hereafter, hereunder and hereof. Under this Lease, including
all Exhibits.
1.13 Interest Rate. Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in the Wall Street Journal plus two percent
(2%), but in no event greater than the maximum rate permitted by law. In the
event the Wall Street Journal ceases to publish such rates, Landlord shall
choose at Landlord's reasonable discretion a similar publication which publishes
such rates.
1.14 Land. The parcel of land more particularly described in Exhibit A and
all rights, easements and appurtenances thereunto belonging or pertaining.
1.15 Lease Year. The first "Lease Year" shall begin on the Commencement
Date. If the Commencement Date is the first day of a month, the first Lease Year
will end twelve (12) full calendar months after the Commencement Date. If the
Commencement Date is a day other
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than the first day of a month, the first Lease Year will end on the last day of
the month in which the first anniversary of the Commencement Date occurs. Each
subsequent Lease Year shall commence on the day immediately following the last
day of the preceding Lease Year, and shall continue for a period of twelve (12)
full calendar months.
1.16 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Buildings, the Equipment or the Land.
1.17 Mortgagee. The holder of any note or obligation secured by a mortgage,
deed of trust, security interest or title retention interest affecting the
Buildings, the Equipment or the Land, including lessors under ground leases,
sale-leasebacks and lease-leasebacks.
1.18 Permitted Use. Operation of a propane tank filling facility, together
with attendant office, maintenance and storage facilities, and such other lawful
uses as long as these uses do not impair the value or character of the Premises
or pose a health or safety risk.
1.19 Premises. The Land, the Buildings and the Equipment.
1.20 Project. The Land and all improvements located thereon.
1.21 Rent. Base Rent and Additional Rent.
1.22 Rules and Regulations. The rules and regulations set forth in Exhibit
D attached hereto and made a part hereof, as the same may be amended or
supplemented from time to time pursuant to Article 18.
1.23 Security Deposit. $50,000.
1.24 Substantial Part. More than fifty percent (50%) of the rentable square
feet of any Building.
1.25 Taxes. As defined in Section 6.1.
1.26 Term. As defined in Section 3.1.
ARTICLE 2 THE PREMISES AND ADDITIONAL EQUIPMENT
2.1 Lease of Premises. In consideration of the agreements contained herein,
Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the
Premises from Landlord, for the Term and upon the terms and conditions
hereinafter provided.
2.2 Acceptance of the Premises. As of the date hereof, Tenant is the owner
and occupant of the Premises. At the commencement of the Term hereunder, Tenant
shall continue to use and occupy the Premises in their "as is" condition, and
Landlord shall not be required to make any repairs or improvements to the
Premises other than as provided elsewhere in this Lease.
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2.3 Covenants of Record. The Premises are leased subject to, and Tenant
agrees not to violate, all present and future covenants, conditions and
restrictions of record which affect the Land; provided, however, that Landlord
shall not voluntarily impose any future covenant, condition or restriction that
impairs Tenant's right of quiet enjoyment hereunder.
2.4 Additional Equipment. In consideration of the agreements contained
herein, Landlord hereby further leases to Tenant, and Tenant hereby further
leases from Landlord, additional equipment described in one or more equipment
schedules (each, an "Equipment Schedule") substantially in the form of Appendix
A attached hereto, that may hereafter be executed by Landlord and Tenant (such
additional equipment, together with all replacement parts, repairs, additions,
substitutions and accessories shall be referred as to the "Additional
Equipment") on the terms and conditions contained in this Lease and in any
Equipment Schedule. This Lease and each of the terms, covenants, conditions,
provisions and agreements contained herein shall be incorporated into each
Equipment Schedule in full to the same extent as if each of the terms,
covenants, conditions, provisions and agreements had been repeated and set forth
in full therein, and this Lease shall control and be effective as to all such
Equipment Schedules except to the extent that this Lease may be inconsistent
with the terms and provisions of such Equipment Schedule, in which event the
terms and provisions of such Equipment Schedule shall prevail. Each Equipment
Schedule shall constitute a separate lease and a distinct and independent
obligation of Tenant.
2.5 Ordering, Delivery and Acceptance of Additional Equipment.
(i) In the event Tenant desires to lease from Landlord any Additional
Equipment, Tenant shall deliver to Landlord an Equipment Schedule
with respect to such Additional Equipment, the first four items
of which Equipment Schedule shall have been completed in full by
Tenant. Delivery of such an Equipment Schedule to Landlord shall
constitute a request of Landlord to order the Additional
Equipment from the supplier named on the Equipment Schedule and
to arrange for delivery of the Additional Equipment to Tenant at
Tenant's expense, and to lease the Additional Equipment to
Tenant. If the Additional Equipment is not delivered to and
accepted by Tenant in form satisfactory to Landlord within ninety
(90) days (or such longer period of time agreed to in writing by
Landlord) from the date Landlord orders the Additional Equipment,
Landlord may terminate the applicable Equipment Schedule and its
obligations thereunder. Tenant waives any requirement of Landlord
to furnish Tenant a copy of Landlord's purchase order for the
Additional Equipment.
(ii) Tenant shall, as Landlord's agent, immediately inspect the
Additional Equipment after it is delivered and installed. Tenant
agrees that on the date the Additional Equipment is available for
first use (the "Acceptance Date"), it shall execute and deliver
to Landlord a written notice of Tenant's acceptance of the
Additional Equipment. Notwithstanding the foregoing, unless
Tenant shall notify Landlord in writing to the contrary within
five (5) days after the Acceptance Date, Tenant shall be deemed
to have unconditionally, irrevocably and finally accepted the
Additional Equipment. However, Tenant's confirmation to Landlord,
by telephone or other means, of the delivery and acceptance of
the Additional Equipment to and by Tenant in all respects shall
constitute Tenant's acknowledgement of its receipt of the
Additional
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Equipment in good working condition, that all installation and
other work necessary prior to use thereof have been completed and
that Tenant has inspected the Additional Equipment and found it
to be satisfactory in all respects. Tenant understands that
Landlord will be relying upon such confirmation by Tenant as a
condition of making payment for the Additional Equipment and,
therefore, such confirmation shall supersede any notice from
Tenant to the contrary received by Landlord within the above
five-day period after the Acceptance Date.
(iii) The Term of any Equipment Schedule to which this Lease relates
shall commence on the Acceptance Date and shall be of such
duration as is prescribed in such Equipment Schedule. Any
Security Deposit as provided in any Equipment Schedule shall be
payable upon the execution of the applicable Equipment Schedule.
Base Rent payments shall commence on the first day of the month
following the Acceptance Date unless the Acceptance Date is the
first day of the applicable period, in which case Base Rent
payments shall commence on the first day of the applicable
period. Any Security Deposit shall secure all obligations of
Tenant hereunder and may be applied at Landlord's discretion to
any past due obligation of Tenant and to the extent not applied
shall be returned to Tenant, without interest, at the expiration
of the applicable Equipment Schedule.
ARTICLE 3 TERM AND PURCHASE OPTIONS
3.1 Term. The term of this Lease (the "Term") shall commence on the
Commencement Date and expire at midnight on the Expiration Date, unless
otherwise provided in an Equipment Schedule with respect to Additional
Equipment. If requested by Landlord, Tenant shall, within fifteen (15) days of a
request made after the Commencement Date, sign a declaration acknowledging the
Commencement Date and the Expiration Date.
3.2 Termination for Failure to Close.
(i) If the Closing Date does not occur because of Landlord's default
under the Contract, this Lease shall terminate and neither party
shall have any further rights or obligations hereunder.
(ii) If the Closing Date does not occur because of Tenant's default
under the Contract, this Lease shall terminate and neither party
shall have any further rights or obligations hereunder; provided,
however, that, if Landlord elects to specifically enforce the
Contract, Landlord also shall have the remedy of specific
performance with respect to this Lease if and when Closing
occurs.
3.3 Option to Purchase at End of Lease. Subject to the provisions set forth
in this Section 3.3 and so long as no Event of Default shall have occurred and
be continuing, Tenant shall have the option (the "End of Term Purchase Option")
on the Expiration Date to purchase all, but not less than all, of the Premises
and any Additional Equipment for a purchase price (the "Option Price") equal to
the sum of (i) the amount paid by Landlord for the Premises under the Contract
and (ii) the amount paid by Landlord for any Additional Equipment. The Option
Price shall be paid by Tenant to Landlord pursuant to a promissory note (the
"Note") bearing interest
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at the rate of thirteen percent (13%) per annum on the unpaid principal balance
and payable in 120 consecutive equal monthly installments of principal and
interest in amounts sufficient to fully amortize the Option Price over the term
of the Note. Tenant's obligation to repay the Note shall be secured by (i) a
perfected first lien security interest in the Premises, as evidenced by a duly
executed and recorded deed of trust on the Premises (the "Mortgage"), (ii) a
perfected first lien security interest in the Equipment and any Additional
Equipment, as evidenced by duly executed and filed UCC financing statements (the
"Financing Statements"), and (iii) such other documents and instruments as are
deemed reasonably necessary by Landlord to evidence Tenant's obligation to pay
the Option Price and to secure that obligation with a perfected first lien
security interest in the Premises and any Additional Equipment (the "Other
Instruments"). The Note, the Mortgage, the UCC Financing Statements and the
Other Instruments (collectively, the "Documents") shall (a) be prepared by
Landlord, (b) contain such terms and conditions as are customary for a
commercial loan made by a third-party financial institution secured by real
property and equipment and (c) be reasonably acceptable to Tenant. The costs of
preparing, drafting, recording, filing and closing on the Documents (including,
without limitation, Landlord's attorney's fees and expenses) shall be borne
exclusively by Tenant. To exercise the End of Term Purchase Option, Tenant shall
deliver to Landlord irrevocable written notice not less than one hundred twenty
(120) days and not more than one hundred eighty (180) days prior to the
Expiration Date. Closing on the purchase of the Premises and any Additional
Equipment by Tenant pursuant to the End of Tem Purchase Option shall occur on
the date immediately following the Expiration Date and be held at the offices of
the attorneys for Landlord. Subject to execution and delivery by Tenant of the
Documents and the payment by Tenant of any unpaid Rent through and including the
Expiration Date, at the closing Landlord shall, subject to all of its rights
under the Documents, (i) transfer all of its right, title and interest in and to
the Premises and any Additional Equipment to Tenant on an "as is, where is"
basis and without recourse or warranty, and (ii) at the sole cost and expense of
Tenant, execute and deliver to Tenant a quitclaim deed and such other documents
as Tenant may reasonably request to evidence the transfer of all of Landlord's
right, title and interest in and to the Premises and any Additional Equipment.
3.4 Option to Purchase during Term of Lease. Subject to the provisions set
forth in this Section 3.4 and so long as no Event of Default shall have occurred
and be continuing, Tenant shall have the option (the "Early Buy-out Option") at
any time after the first Lease Year to purchase all, but not less than all, of
the Premises and any Additional Equipment for the Early Buy-out Price (as
defined in Section 3.5). To exercise the Early Buy-out Option, Tenant shall
deliver to Landlord irrevocable written notice not less than ninety (90) days
and not more than one hundred twenty (120) days prior to the date specified in
such written notice for the closing on the purchase by Tenant of the Premises
and any Additional Equipment (the "Purchase Date"). If Tenant shall have
exercised the Early Buy-out Option, Tenant shall pay to Landlord the Early
Buy-out Price in immediately available funds on the Purchase Date. Subject to
such payment of the Early Buy-out Price and the payment by Tenant of any unpaid
Rent through and including the Purchase Date, (i) Landlord shall transfer all of
its right, title and interest in and to the Premises and any Additional
Equipment to Tenant on an "as is, where is" basis and without recourse or
warranty and (ii) this Lease shall terminate. Landlord, at the sole cost and
expense of Tenant, shall execute and deliver to Tenant a quitclaim deed and such
other documents as Tenant may reasonably request to evidence the transfer of all
of Landlord's right, title and interest in and to the Premises and any
Additional Equipment.
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3.5 Early Buy-out Price. The "Early Buy-out Price" shall be the greater of
(i) the "book value" of the Premises and any Additional Equipment as reflected
on the books and records of Landlord maintained in accordance with generally
accepted accounting principles consistently applied and (ii) the Fair Market
Sales Value (as defined in this Section 3.5) of the Premises and any Additional
Equipment. "Fair Market Sales Value" means an amount determined by an
Independent Appraisal (as defined in Section 3.6) on the basis of, and shall be
equal in amount to, the value which would be obtained in an arm's-length
transaction between an informed and willing purchaser under no compulsion to buy
and an informed and willing seller under no compulsion to sell.
3.6 Independent Appraisal. "Independent Appraisal" means the procedure
specified in this Section 3.6 for determining Fair Market Sales Value. Landlord
and Tenant shall initially consult with one another for the purpose of
determining Fair Market Sales Value of the Premises and any Additional Equipment
by mutual agreement. In the absence of such agreement, at any time after the
twentieth day following the commencement of such consultation either party may
give written notice to the other requesting determination of such Fair Market
Sales Value by appraisal, and in that event the parties shall consult with one
another for the purpose of appointing a mutually acceptable qualified
independent appraiser. If the parties are unable to agree on an appraiser on or
before the tenth day after such notice, such Fair Market Sales Value shall be
determined by a panel of three independent appraisers, one of whom shall be
selected by each of Landlord and Tenant on or before the fifth day following the
expiration of such 10-day period. If one party appoints an appraiser pursuant to
the immediately preceding sentence, and if the other party fails to appoint a
second appraiser within the applicable time limit, the appraisal shall be made
by such appraiser. On or before the tenth day after appointment of the second
appraiser, a third appraiser shall be selected by agreement of the first two
appraisers. Tenant shall pay all fees and expenses of the appraisers. Each
appraiser appointed pursuant to the foregoing procedure shall be experienced,
have equivalent qualifications to those of a senior member of the American
Society of Appraisers, shall be independent of Landlord and Tenant, and shall be
instructed to determine Fair Market Sales Value in accordance with the uniform
standards for professional appraisal practice or the equivalent, before the 45th
day after the appointment of the last of such appraisers to be appointed, and
such determination shall be final, binding and conclusive upon the parties. If
three appraisers shall be appointed, the determination of Fair Market Sales
Value shall be the average of the three appraisals rendered by the appraisers.
In the event, however, that the lowest or the highest of the three appraisals,
or both, varies by more than ten percent (10%) from the middle appraisal, the
appraisal or appraisals so varying shall be disregarded and the average of the
remaining appraisals, or the remaining appraisal, shall be the determination of
Fair Market Sales Value.
ARTICLE 4 RENT
4.1 Base Rent. Tenant shall pay to Landlord the Base Rent as specified in
Section 1.5.
4.2 Payment of Base Rent.
(i) Base Rent for each Lease Year shall be payable in equal monthly
installments, in advance, without demand, notice, deduction, offset or
counterclaim, on or
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before the first day of each and every calendar month during the Term;
provided, however, that if the Commencement Date occurs on a date other
than on the first day of a calendar month, prorated Base Rent for the month
in which the Commencement Date falls shall be paid on the Commencement
Date.
(ii) Tenant shall pay the Base Rent and all Additional Rent by
electronic wire transfer of good funds to Landlord at such address
(including bank routing data) as Landlord shall timely designate in
writing, or in such other manner as Landlord from time to time specifies by
notice to Tenant; provided, however, that any other means of payment
designated by Landlord must be one that does not subject Tenant to any
added cost, burden or delay in transmitting its funds.
(iii) Any payment made by Tenant to Landlord on account of Base Rent
may be credited by Landlord to the payment of any late charges then due and
payable and to any Base Rent or Additional Rent then past due before being
credited to Base Rent currently due.
4.3 Additional Rent. All sums payable by Tenant under this Lease, other
than Base Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in advance, without demand, notice, deduction,
offset or counterclaim, and in the same manner as set forth above for Base Rent.
4.4 Net Lease. It is the purpose and intent of Landlord and Tenant that the
Base Rent shall be absolutely net to Landlord, so that this Lease shall yield,
net to Landlord, the Base Rent specified above, commencing on the Commencement
Date and thereafter during the entire Term, and that all Taxes, and other costs
and expenses of every kind and nature whatsoever relating to the operation,
maintenance and repair of the Premises and any Additional Equipment and
applicable during any part of the Term shall be paid or discharged by Tenant,
except as otherwise expressly provided in this Lease. This Lease is a net lease,
and Tenant acknowledges and agrees that Tenant's obligation to pay all Rent
hereunder and the rights of Landlord in and to such Rent, shall be absolute,
irrevocable and unconditional and shall not be subject to cancellation,
termination, modification or repudiation by Tenant or any abatement, reduction,
setoff, defense, counterclaim or recoupment (collectively, "Abatements") for any
reason or under any circumstance whatsoever including, without limitation,
Abatements due to any present or future claims of Tenant against Landlord, its
successors and assigns whether under this Lease or otherwise, for whatever
reason. Tenant hereby waives any and all existing and future claims to any
Abatement against such Rent and agrees to pay all such Rent regardless of any
Abatement that may be asserted in connection with this Lease. Except as
otherwise expressly provided herein, the Lease shall not terminate, nor shall
the obligations of Tenant be affected, by reason of any defect in or damage to,
or any loss or destruction of, the Premises, any Additional Equipment or any
part thereof from whatsoever cause, or the invalidity or unenforceability or
lack of due authorization of the Lease or lack of right, power or authority of
Landlord to enter into the Lease, or for any other cause, whether similar or
dissimilar to the foregoing, any present or future law or regulation to the
contrary notwithstanding, it being the express intention of Landlord and Tenant
that all Rent payable to Landlord hereunder shall be, and continue to be,
payable in all events unless and until the obligation to pay the same shall be
terminated pursuant to the expressed provisions of this Lease. Notwithstanding
anything to the contrary in this
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Section 4.4, Landlord and Tenant acknowledge and agree that (i) Landlord is
indebted to Tenant for a portion of the purchase price for the Premises payable
under the Contract, as evidenced by a promissory note executed and delivered by
Landlord on the Closing Date, and (ii) Tenant may offset against each payment
under such promissory note (each, a "Payment") as it becomes due any Rent that
is due hereunder on or about the same date as such Payment is due and pay to
Landlord only the excess, if any, of such Rent over such Payment. Landlord and
Tenant shall record in their respective books of account the full amount of each
such Rent payment and Payment as if they had been fully paid by Tenant and
Landlord, respectively, and not been wholly or partially offset against one
another.
ARTICLE 5 SECURITY DEPOSIT
5.1 General. On the Commencement Date, Tenant shall deposit with "Escrow
Agent" (as defined below) the Security Deposit in cash, which shall be held by
Escrow Agent, as security, for the performance of Tenant's obligations and
covenants under this Lease. It is expressly understood and agreed that such
deposit is not an advance rental deposit or a measure of Landlord's damages in
case of an Event of Default.
5.2 Application of Security Deposit. If an Event of Default shall occur or
if Tenant fails to surrender the Premises in the condition required by this
Lease, Landlord, pursuant to the "Escrow Agreement" (as defined below), shall
have the right (but not the obligation), and without prejudice to any other
remedy which Landlord may have on account thereof, to apply all or any portion
of the Security Deposit to cure such default or to remedy the condition of the
Premises. If Landlord so applies the Security Deposit or any portion thereof
before the Expiration Date or earlier termination of this Lease, Tenant shall
deposit with Escrow Agent, upon demand, the amount necessary to restore the
Security Deposit to its original amount. Except to the extent funds from the
Security Deposit are paid to Landlord in accordance with this Section 5.2, the
Security Deposit shall be deemed Tenant's property, and shall not be subject to
the claims of Landlord's creditors. Any remaining balance of the Security
Deposit shall be returned to Tenant at such time after the Expiration Date or
earlier termination of this Lease that all of Tenant's obligations under this
Lease have been fulfilled. Landlord shall conduct a "Post Move-Out Inspection"
of the Premises within fifteen (15) days after the Expiration Date or earlier
termination of this Lease.
5.3 Escrow Agreements. On or before the Commencement Date, the parties
shall enter into an escrow agreement for the Security Deposit (the "Escrow
Agreement") with an escrow agent selected by the parties (the "Escrow Agent").
Notwithstanding anything to the contrary in this Article, the Security Deposit
shall be held by the Escrow Agent pursuant to the Escrow Agreement.
ARTICLE 6 TAXES
6.1 Payment of Taxes. Tenant shall pay throughout the Term, as Additional
Rent, all Taxes. In the event the Commencement Date or the Expiration Date are
other than the first (1st) day of a Calendar Year, Tenant's liability for Taxes
shall be adjusted to reflect the actual period of occupancy during the Calendar
Year. "Taxes" shall mean all taxes and assessments, including general or
special, ordinary or extraordinary, foreseen or unforeseen, assessed, levied or
imposed
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by any governmental authority upon the Buildings and the Land, and upon the
Equipment, any Additional Equipment and all other fixtures, machinery, equipment
or systems in, upon or used in connection with any of the foregoing, and the
rental, revenue or receipts derived therefrom, under the current or any future
taxation or assessment system or modification of, supplement to, or substitute
for such system. Taxes also shall include any vault rents and any special
assessments which are in the nature of or in substitution for personal property
taxes or real estate taxes, including road improvement assessments, special use
area assessments and school district assessments. If at any time the method of
taxation prevailing on the date hereof shall be altered so that in lieu of, as a
substitute for or in addition to the whole or any part of the taxes now levied
or assessed, there shall be levied or assessed a tax of whatever nature, then
the same shall be included as Taxes hereunder; provided, however, that in no
event shall Taxes hereunder include any tax on Landlord's net income or profits.
Neither Landlord nor Tenant shall have an obligation to challenge Taxes, but if
either Landlord or Tenant does challenge any Tax and the challenge is
successful, the costs of such challenge incurred after the Commencement Date
shall be shared equally between the parties and Tenant's share shall be treated
as additional Taxes for all purposes of this Lease.. Tenant shall give Landlord
reasonable notice before challenging any Real Estate Tax. If, as a result of any
such challenge (whether initiated by Landlord or Tenant), a tax refund is made
to Landlord, then the amount of such refund less the expenses of the challenge
payable by Landlord shall be deducted from Taxes due in the Lease Year such
refund is received.
6.2 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year, a statement of Landlord's estimate of Taxes
payable by Tenant during such Calendar Year. In addition to the Base Rent,
Tenant shall pay to Escrow Agent on or before the first day of each month during
such Calendar Year an amount equal to one-twelfth (1/12) the estimated Taxes
payable by Tenant for such Calendar Year as set forth in Landlord's statement.
If Landlord fails to give Tenant notice of its estimated payments due under this
Section for any Calendar Year, then Tenant shall continue making monthly
estimated payments in accordance with the estimate for the previous Calendar
Year until a new estimate is provided. If Landlord determines that, because of
unexpected increases in Taxes or other reasons, Landlord's estimate of Taxes was
too low, then Landlord shall have the right to give a new statement of the
estimated Taxes to Tenant for such Calendar Year or the balance thereof and to
bill Tenant for any deficiency which may have accrued during such Calendar Year,
and Tenant shall thereafter pay monthly estimated payments based on such new
statement.
6.3 Actual Taxes. Within one hundred twenty (120) days after the end of
each Calendar Year, Landlord shall submit a statement to Tenant showing the
actual Taxes for such Calendar Year. If for any Calendar Year, Tenant's
estimated monthly payments exceed actual Taxes for such Calendar Year, then
Landlord shall give Tenant a credit in the amount of the overpayment toward
Tenant's next monthly payments of estimated Taxes. If for any Calendar Year
Tenant's estimated monthly payments are less than actual Taxes for such Calendar
Year, then Tenant shall pay the total amount of such deficiency to Escrow Agent
within thirty (30) days after receipt of the statement from Landlord. Landlord's
and Tenant's obligations with respect to any overpayment or underpayment of
Taxes shall survive the expiration or termination of this Lease.
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6.4 Tax Escrow. Notwithstanding anything to the contrary in this Article,
all payments of Taxes due from Tenant hereunder shall be paid to the Escrow
Agent pursuant to the Tax Escrow. All funds in the Tax Escrow shall be deemed
Tenant's property and shall not be subject to the claims of Landlord's
creditors.
ARTICLE 7 USE
7.1 Use of Premises and Additional Equipment. Tenant shall occupy and use
the Premises and any Additional Equipment solely for the Permitted Use. Tenant
shall comply, at Tenant's expense, with (i) all present and future laws,
ordinances, codes, regulations and orders applicable to the Premises and any
Additional Equipment of the United States of America, the State of North
Carolina and any other public or quasi-public federal, state or local authority
having jurisdiction over the Premises and any Additional Equipment, and (ii) any
reasonable requests of Mortgagee or any insurance company providing coverage
with respect to the Premises and any Additional Equipment; provided, however,
that Tenant's obligations with respect to Hazardous Materials shall be as set
forth in Article 24. Tenant shall maintain in full force and effect all licenses
and permits required for Tenant to operate its business on the Premises
lawfully. Tenant shall not use or occupy the Premises or any Additional
Equipment in any manner that is unlawful or dangerous or that shall constitute
waste, unreasonable annoyance or a nuisance to Landlord.
7.2 [Intentionally Omitted]
ARTICLE 8 ASSIGNMENT AND SUBLETTING
8.1 Consent Required. Tenant shall not assign, transfer, mortgage or
otherwise encumber this Lease or sublet or rent (or permit a third party to
occupy or use) the Premises or any Additional Equipment, or any part thereof,
nor shall any assignment or transfer of this Lease or the right of occupancy
hereunder be effected by operation of law or otherwise, without the prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Any assignment, encumbrance, or sublease without Landlord's written
consent shall be voidable by Landlord and, at Landlord's election, constitute an
Event of Default hereunder.
8.2 Exception for Affiliates.
(i) Notwithstanding anything to the contrary in Section 8.1, Tenant,
without Landlord's consent, may (a) sublet all or any part of the Premises
or any Additional Equipment to an Affiliate, or (b) assign this Lease to an
Affiliate whose net worth as of the effective date of the assignment is
equal to or greater than the net worth of Tenant as of the Commencement
Date. Tenant shall notify Landlord of an assignment or sublet effectuated
under this Section, and the form of any sublease or assignment of lease
shall be subject to Landlord's reasonable approval.
(ii) Tenant shall indemnify, defend and hold Landlord harmless from
and against all claims, damages, losses, and expenses of any kind
(including reasonable attorneys' fees) permitted by law that may be
incurred by Landlord or that Landlord shall suffer as a result of the use
of the Premises or any Additional Equipment by any Affiliates or their
Agents; provided, however, that this indemnity shall not apply to the
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extent that such claims, damages, losses or expenses are directly caused by
the gross negligence or willful misconduct of Landlord or its Agents.
8.3 Tenant to Remain Liable. If, pursuant to Section 8.1 or 8.2, an
assignment or subletting occurs, the initial Tenant shall remain liable under
this Lease. Neither the consent by Landlord to any assignment, transfer,
encumbrance or subletting nor the collection or acceptance by Landlord of rent
from any assignee, subtenant or occupant shall be construed as a waiver or
release of the initial Tenant from the terms and conditions of this Lease or
relieve Tenant or any subtenant, assignee or other party from obtaining the
consent in writing of Landlord to any further assignment, transfer, encumbrance
or subletting. Tenant hereby assigns to Landlord the rent and other sums due
from any subtenant, assignee or other occupant or user of the Premises or any
Additional Equipment, and hereby authorizes and directs each such subtenant,
assignee or other occupant to pay such rent or other sums directly to Landlord;
provided, however, that until the occurrence of an Event of Default, Tenant
shall have the license to continue collecting and retaining for Tenant's own
account such rent and other sums.
ARTICLE 9 MAINTENANCE AND REPAIR; OPERATION OF PREMISES
9.1 Tenant's Obligation.
(i) Subject to subsections (iii) and (iv) below, Tenant, at its
expense, shall maintain all parts of the Premises (which term shall
include, without limitation, for all purposes of this Article 9, any
Additional Equipment, the Equipment, the roof, the foundation and the
structural soundness of the exterior walls of the Buildings) in the
condition thereof as of the Commencement Date, ordinary wear and tear
excepted, promptly making all necessary repairs and replacements, including
windows, glass and plate glass, doors, any special office entry, interior
walls and finish work, floors and floor covering, downspouts, gutters,
lighting and electrical systems, dock boards, truck doors, dock bumpers,
paving, HVAC systems (including fixtures and equipment), plumbing work and
fixtures, termite and pest extermination, regular removal of trash and
debris. Tenant, at its expense, shall maintain existing regularly scheduled
preventive maintenance/service contracts for all of the Equipment and any
Additional Equipment and for all elevators, hot water heaters, heating and
air conditioning systems and other equipment within the Premises, or enter
into new contracts with maintenance contractors and maintenance schedules
reasonably acceptable to Landlord.
(ii) Tenant, at its expense, shall keep the Premises in a clean and
sanitary condition commensurate with the present standard for the Premises,
maintain suitable receptacles for trash and refuse, and promptly remove
from the Premises all accumulations of trash and refuse. In order to
fulfill the immediately foregoing obligations, Tenant shall, at its
expense, maintain the existing janitorial and/or char service contracts or
enter into new contract(s) with a contractor or contractors reasonably
acceptable to Landlord. In addition, Tenant, at its expense, shall arrange
for (a) the removal of all snow and ice from the Premises, (b) the
maintenance of all landscaped areas on the Land, and (c) the washing on a
semi-annual basis of the exterior windows of the Building.
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(iii) If, as a result of negligence or willful misconduct, Landlord or
its Agents damages an item that Tenant is required to maintain hereunder,
Tenant shall repair the damage, and Landlord shall pay for the cost of the
repair to the extent that it is not covered by insurance.
(iv) Before making a repair that will cost more than $50,000.00,
Tenant shall consult with Landlord to determine whether Landlord would
prefer to replace the item to be repaired. If Landlord indicates an
interest in replacing the item, the parties shall negotiate in good faith
to determine how the cost of the replacement will be allocated between
them. If agreement is not reached within ten (10) days after Tenant first
consults with Landlord, Tenant shall proceed with the repair. This
provision shall not apply to an emergency repair.
9.2 Landlord's Right to Maintain or Repair. If, within ten (10) days
following notice to Tenant, Tenant fails to commence to maintain, repair or
replace any part of the Premises and diligently pursue timely completion of such
maintenance, repair or replacement, Landlord may cause all required maintenance,
repairs or replacements to be made. Tenant shall promptly pay Landlord all
reasonable costs incurred in connection therewith plus interest thereon at the
Interest Rate from the due date until paid.
9.3 Approval of Service Contracts. All maintenance agreements or service
contracts hereafter entered into by Tenant with respect to the Premises
(collectively, the "Service Contracts") shall be subject to Landlord's prior
approval, which shall not be unreasonably withheld. All Service Contracts shall
be terminable upon no more than thirty (30) days' notice by Tenant.
9.4 Security. Tenant, at its expense, shall be responsible for all security
with respect to the Premises during the Term, except with respect to any Agents
of Landlord, such Agents' property, and any construction or improvements or
other activities undertaken by or on behalf of Landlord. Landlord shall not
provide a security service or system of any kind.
9.5 Assignment of Warranties. During the Term, Landlord shall assign to
Tenant (or otherwise make available for Tenant's use) all assignable warranties,
guaranties, bonds, claims and rights running to or assigned to Landlord in
connection with the construction, maintenance, operation or repair of the
Premises.
ARTICLE 10 ALTERATIONS
10.1 Alterations.
(i) Except for "Allowed Alterations" (as defined below), Tenant shall
not make or permit any Alterations without the prior written consent of
Landlord, which Landlord may withhold in its sole and absolute discretion.
Landlord may impose any reasonable conditions to its consent, including (a)
delivery to Landlord of written and unconditional waivers of mechanic's and
materialmen's liens as to the Premises, any Additional Equipment, the
Equipment, the Buildings and the Land for all work, labor and services to
be performed and materials to be furnished, signed by all contractors,
subcontractors, and materialmen participating in the Alterations, (b) prior
approval of the
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plans and specifications and Tenant's contractor(s) with respect to the
Alterations, (c) supervision by Landlord's representative at Tenant's
expense of the Alterations and (d) delivery to Landlord of payment and
performance bonds naming Landlord and Mortgagee as obligees.
Notwithstanding the foregoing, Tenant, without Landlord's consent, may make
any Alterations to the interior of any Building for which a building permit
from the applicable governmental authorities is not required (collectively,
the "Allowed Alterations").
(ii) All Alterations shall conform to the requirements of Landlord's
and Tenant's insurers and of the Federal, state and local governments
having jurisdiction over the Premises and any Additional Equipment, shall
be performed in accordance with the terms and provisions of this Lease in a
good and workmanlike manner and shall not adversely affect the value,
utility or character of the Premises or any Additional Equipment. If any
Alterations are not performed as herein required, Landlord shall have the
right, at Landlord's option, to halt any further Alterations, or to require
Tenant to perform the Alterations as herein required or to require Tenant
to return the Premises and any Additional Equipment to its condition before
such Alterations.
10.2 Removal of Alterations.
(i) At the time Landlord gives its consent to any Alterations for
which its consent is required, Landlord may designate that all or any part
of the Alterations shall, at the election of Landlord, either be removed by
Tenant at its expense before the expiration of the Term or shall remain
upon or as part of the Premises or any Additional Equipment, as the case
may be, and be surrendered therewith at the expiration of the Term or
earlier termination of this Lease as the property of Landlord without
disturbance, molestation or injury. If Landlord requires the removal of all
or part of such Alterations, Tenant, at its expense, shall repair any
damage to the Premises or any Additional Equipment, as the case may be,
caused by such removal. If Tenant fails to remove such Alterations upon
Landlord's request, then Landlord may (but shall not be obligated to)
remove the same and the reasonable cost of such removal and repair of any
damage caused by the same, together with any and all damages which Landlord
may suffer and sustain by reason of the failure of Tenant to remove the
same, shall be charged to Tenant and paid upon demand.
(ii) Landlord may not require Tenant to remove any Allowed Alterations
that have been made in compliance with Section 10.1(ii) above, and all such
Allowed Alterations shall remain upon or as part of the Premises or any
Additional Equipment, as the case may be, and be surrendered therewith at
the expiration of the Term or earlier termination of this Lease as the
property of Landlord without disturbance, molestation or injury.
ARTICLE 11 MECHANIC'S LIENS
If any mechanic's or materialmen's lien is filed against all or any portion
of the Premises or any Additional Equipment, as the case may be, for work
claimed to have been done for, or materials claimed to have been furnished to or
at the direction of Tenant, such lien shall be
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discharged of record by Tenant within twenty (20) days after Tenant's receipt of
written notice thereof by the payment thereof or the filing of any bond required
by law. If Tenant shall fail to discharge any such lien, Landlord may (but shall
not be obligated to) discharge the same, the cost of which shall be paid by
Tenant within five (5) days of demand by Landlord. Such discharge by Landlord
shall not be deemed to waive or release the default of Tenant in not discharging
the same. Neither Landlord's consent to any Alterations nor anything contained
in this Lease shall be deemed to be the agreement or consent of Landlord to
subject Landlord's interest in the Project to any mechanic's or materialmen's
liens.
ARTICLE 12 SIGNS
Landlord consents to Tenant's existing signage, including the existing
exterior sign(s) (collectively, "Tenant's Signage") which are in place on the
date hereof. Except for Tenant's Signage, Tenant shall not display any exterior
signs, lights (other than illumination for safety or security purposes), or
advertisements anywhere outside of any Building without Landlord's prior
approval, which Landlord may withhold in its reasonable discretion; provided,
however, that Landlord may not withhold its consent to any change in signage
occasioned by any reorganization, merger, or other business combination
involving Tenant as long as Tenant has complied with Article 8 with respect
thereto. Tenant shall maintain Tenant's Signage (as well as any other signage
approved by Landlord) in good repair, and shall replace it when needed so that
it is in good condition at all times. Upon termination of the Lease, Tenant, at
its expense, shall remove Tenant's Signage (as well as any other signage
approved by Landlord), and shall repair any damage caused by this removal.
ARTICLE 13 TENANT'S EQUIPMENT AND PROPERTY
13.1 Moving Tenant's Property. Any and all damage or injury to the Premises
or any Additional Equipment caused by moving the property of Tenant into or out
of the Premises, or due to the same being on or a part of the Premises or any
Additional Equipment, shall be repaired by Tenant at its sole cost and expense.
13.2 Installing and Operating Tenant's Equipment. Without first obtaining
the written consent of Landlord, which shall not be unreasonably withheld,
Tenant shall not install or operate in or as part of the Premises (i) any
electrically operated equipment or other machinery, other than the Equipment or
any Additional Equipment or any other equipment that does not require wiring,
cooling or other service in excess of Building standards, (ii) any equipment of
any kind or nature whatsoever which will require any changes, replacements or
additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises for which a building permit
must be obtained from the applicable governmental authorities, or (iii) any
equipment which causes the floor load to exceed the reasonable load limits set
by Landlord for each Building.
ARTICLE 14 RIGHT OF ENTRY
Tenant shall permit Landlord or its Agents, upon reasonable notice (except
in an emergency, when notice shall not be required), to enter the Land and the
Buildings, without charge therefor to Landlord and without diminution of Rent,
to (i) examine, inspect and protect
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the Premises and any Additional Equipment, (ii) make such improvements,
alterations and repairs or perform such maintenance as Landlord is permitted to
make or perform under this Lease, (iii) exhibit the same to prospective
purchasers of the Premises and any Additional Equipment or to present or future
Mortgagees, or (iv) exhibit the same to prospective tenants.
ARTICLE 15 INSURANCE
15.1 Insurance Rating. Tenant shall not conduct or permit any activity, or
place any equipment or material, in or about or as part of the Premises or any
Additional Equipment which will increase the rate of fire or other insurance on
any Building; and if any increase in the rate of insurance is stated by any
insurance company or by the applicable insurance rating bureau to be due to any
activity, equipment or material of Tenant in or about or as part of the Premises
or any Additional Equipment, such statement shall be conclusive evidence that
the increase in such rate is due to the same and, as a result thereof, Tenant
shall pay such increase to Landlord upon demand.
15.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a commercial general liability policy
insuring against claims, demands or actions for bodily injury, death, personal
injury, and loss or damage to property (and covering costs and expenses,
including reasonable attorneys' fees) arising out of or in connection with: (i)
the Premises and any Additional Equipment; (ii) Tenant's operations in,
maintenance and use of the Premises and any Additional Equipment, and (iii)
Tenant's liability assumed under this Lease. Such insurance shall have such
combined single limit as reasonably required by Landlord from time to time, but
in no event less than $5,000,000 per occurrence, on an occurrence basis, and
shall be primary over any insurance carried by Landlord. Endorsements shall be
obtained for cross-liability and contractual liability, if not otherwise covered
by the policy.
15.3 Insurance for Personal Property. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a property insurance policy
(written on an "All Risk" basis) insuring all of Tenant's personal property,
including the Equipment and any Additional Equipment and all other equipment,
furniture, fixtures, furnishings and leasehold improvements which are the
responsibility of Tenant. In addition, Tenant shall, at its sole cost and
expense, procure and maintain business interruption insurance in an amount not
less than the Base Rent due hereunder for the first Lease Year.
15.4 Requirements of Insurance Coverage. All such insurance required to be
carried by Tenant herein shall be with an insurance company licensed to do
business in the State of North Carolina and rated not lower than A-12 in the
A.M. Best Rating Guide. Such insurance (i) shall contain a provision or
endorsement that such policy shall remain in full force and effect
notwithstanding that the insured has released its right of action against any
party before the occurrence of a loss; (ii) shall name Landlord and, at
Landlord's request, any Mortgagee or ground lessor, as additional insured
parties on the general liability policy; and (iii) shall provide that the policy
shall not be cancelled, failed to be renewed or materially amended without at
least thirty (30) days' prior notice to Landlord and, at Landlord's request, any
Mortgagee. Within fifteen (15) days after the Commencement Date and, thereafter,
not less than thirty (30) days before the expiration date of the insurance
policy, a certificate of insurance for each policy to be
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carried by Tenant hereunder shall be delivered to Landlord and, at Landlord's
request, to any Mortgagee.
15.5 Waiver of Subrogation. Each party hereby releases the other party
hereto from liability for any loss or damage to any building, structure or
tangible personal property located at or used in connection with the Project or
this Lease, or any loss of income or losses under worker's compensation laws or
benefits resulting therefrom, notwithstanding that such loss, damage or
liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its Agents, to the extent that such loss or
damage (i) is covered and paid by insurance benefitting the party suffering such
loss or damage, or (ii) would have been covered and paid by insurance
benefitting the party suffering such loss or damage if such party had maintained
the insurance that it was required to maintain pursuant to this Lease. Each
party hereto shall use reasonable efforts to have a waiver of subrogation clause
(providing that such waiver of right of recovery against the other party shall
not impair the effectiveness of such policy or the insured's ability to recover
thereunder) included in its said policies, and shall promptly notify the other
in writing if such clause cannot be included in any such policy; if such waiver
of subrogation clause shall not be available, then the foregoing waiver of right
of recovery shall be void.
15.6 Landlord's Insurance. Landlord shall procure and maintain throughout
the Term the following insurance pertaining to the Project:
(i) All-risk coverage insurance covering the Premises (but excluding
any of Tenant's personal property other than the Equipment and any
Additional Equipment), in an amount not less than the full replacement cost
thereof;
(ii) General liability insurance with a combined single occurrence
limit of not less than $5,000,000 per occurrence; and
(iii) Such other insurance as Landlord reasonably determines from time
to time.
15.7 Reimbursement for the Cost of Landlord's Insurance. Tenant, as
Additional Rent, shall reimburse Landlord, without deduction or offset, for the
cost of Landlord's insurance pursuant to Section 15.6 above in effect during the
Term. Tenant shall pay Landlord for this cost within thirty (30) days after
receipt of an invoice from Landlord. If an invoice covers a time period that is
not part of the Term, Tenant's share of the invoice shall be prorated based upon
the portion that pertains to the Term.
ARTICLE 16 UTILITIES
16.1 Payment of Utilities. Tenant shall pay directly to the suppliers all
charges for water, sewer, gas, electricity, telephone and other utilities used
upon or in connection with the Premises or any Additional Equipment commencing
on the Commencement Date. Expenses for maintenance of utility meters shall be
borne by Tenant, and if Landlord pays any such expenses, Tenant shall reimburse
Landlord promptly upon demand. Landlord shall not be liable to Tenant for
interruption in or curtailment of any utility service, unless the interruption
or curtailment is directly caused by the gross negligence or willful misconduct
of Landlord or its Agents. No
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interruption or curtailment of utility service shall constitute a constructive
eviction or grounds for rental abatement in whole or in part.
16.2 No Back-Up Systems. Tenant acknowledges that there are no supplemental
or back-up systems for any of the utilities serving the Premises or any
Additional Equipment.
ARTICLE 17 LIABILITY OF LANDLORD
17.1 Limit on Landlord's Liability. Except where due to Landlord or its
Agents' gross negligence or willful misconduct, Landlord and its Agents shall
not be liable to Tenant or its Agents for, and Tenant, for itself and its
Agents, does hereby release Landlord and its Agents from liability for, any
damage, compensation or claim arising from (i) the necessity of repairing any
portion of the Premises or any Additional Equipment or any structural defects
thereto, (ii) any interruption in the use of the Premises or any Additional
Equipment for any reason including any interruption or suspension of utility
service, (iii) fire or other casualty or personal or property injury, damage or
loss resulting from the use or operation (by Tenant or any other person
whomsoever) of the Premises or any Additional Equipment, (iv) the termination of
this Lease, (v) robbery, assault or theft, or (vi) any leakage in the Premises
or any Building from water, rain, snow or other cause whatsoever. None of the
occurrences described in the preceding sentence shall give rise to diminution or
abatement of Rent or constructive eviction.
17.2 Personal Property at Tenant's Risk; No Consequential Damages.
Notwithstanding anything to the contrary in this Lease, (i) the Equipment, any
Additional Equipment and any goods, automobiles, property or personal effects
stored or placed by Tenant or its Agents in or about the Premises shall be at
the sole risk of Tenant, and Tenant hereby expressly waives its right to recover
against Landlord and its Agents therefor, and (ii) Tenant hereby waives any
claim it might have against Landlord or its Agents for any consequential or
indirect damages sustained by Tenant arising out of the loss or damage to any
person or property of Tenant, or any interruption in the use of the Premises or
any Additional Equipment, for any reason. Tenant acknowledges its obligation to
insure against such losses and damages.
ARTICLE 18 RULES AND REGULATIONS
Tenant and its Agents shall at all times abide by and observe the Rules and
Regulations and any amendments thereto that may be promulgated from time to time
by Landlord for the operation and maintenance of the Buildings and the Rules and
Regulations shall be deemed to be covenants of the Lease to be performed and/or
observed by Tenant. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to enforce the Rules and Regulations.
Landlord shall not be liable to Tenant for any violation by any party of the
Rules and Regulations. If there is any inconsistency between this Lease and the
Rules and Regulations, this Lease shall govern. Landlord reserves the right to
amend the Rules and Regulations as it deems necessary; provided, however, that
no such amendments may adversely affect Tenant's use and enjoyment of the
Premises or any Additional Equipment as currently or then conducted or Tenant's
financial obligations under this Lease.
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ARTICLE 19 DAMAGE; CONDEMNATION
19.1 Damage to the Premises.
(i) If any Building shall be damaged by fire or other cause without
the fault or negligence of Tenant or its Agents, Landlord shall diligently
and as soon as practicable after such damage occurs (taking into account
the time necessary to effect a satisfactory settlement with any insurance
company involved) repair such damage at the expense of Landlord; provided,
however, that Landlord's obligation to repair such damage shall not exceed
the proceeds of insurance available to Landlord (reduced by any proceeds
retained pursuant to the rights of Mortgagee). If Landlord decides not to
repair the damage because of a lack of insurance proceeds, Landlord will
promptly so notify Tenant, and Tenant may terminate this Lease upon notice
to Landlord given within thirty (30) days after the date of Landlord's
notice, in which case the Rent shall be apportioned and paid to the date of
such termination. Notwithstanding the foregoing, if any Building shall be
damaged by fire or other cause attributable to the fault or negligence of
Tenant or its Agents, (a) Landlord shall repair such damage to the extent
of available insurance proceeds, (b) Tenant shall pay the cost of the
remaining repairs necessary to restore such Building to its condition prior
to such damage and (c) this Lease shall remain in full force and effect.
(ii) Notwithstanding subsection (i) above, if any Building is damaged
by fire or other cause without the fault or negligence of Tenant or its
Agents to such an extent that, in Landlord's reasonable judgment, the
damage cannot be substantially repaired within two hundred (200) days after
the date of such damage, Landlord will promptly so notify Tenant. If the
damage or the repair thereof will materially affect Tenant's ability to use
the Premises, Tenant may terminate this Lease upon notice to Landlord given
within thirty (30) days from the date of Landlord's notice, in which case
the Rent shall be apportioned and paid to the date of such termination. If
Tenant does not elect to terminate this Lease but the damage required to be
repaired by Landlord is not repaired within two hundred (200) days from the
date of such damage [such two hundred (200) day period to be extended by
the period of any delay outside the direct control of Landlord plus a
reasonable period for a satisfactory settlement with any insurance company
involved], Tenant, within thirty (30) days from the expiration of such two
hundred (200) day period (as the same may be extended), may terminate this
Lease by notice to Landlord, in which case the Rent shall be apportioned
and paid to the date of termination.
(iii) Tenant assumes the entire risk of loss (including loss of use)
of or damage to the Equipment, any Additional Equipment or any part
thereof, from any cause whatsoever. No such loss or damage shall affect or
impair the obligations of Tenant hereunder which shall continue in full
force and effect. In the event of destruction of the Equipment, any
Additional Equipment or any part thereof or damage thereto which cannot be
repaired, Tenant shall promptly notify Landlord and Tenant shall replace
any part thereof destroyed or damaged with a part or parts having a value
and utility at least equal to the part replaced assuming such replaced part
was in the condition and repair required to be maintained by the terms of
this Lease; provided, however, in the event
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damage to the Equipment or any Additional Equipment, as the case may be,
renders the Equipment or any Additional Equipment, as the case may be, a
total loss, then Tenant shall, at its sole cost and expense, replace the
Equipment or any Additional Equipment, as the case may be, with equipment
of like manufacture and having a value and utility at least equal to the
value and utility of the Equipment or any Additional Equipment, as the case
may be, on the date of such damage, assuming the Equipment or any
Additional Equipment, as the case may be, was in the condition and repair
required to be maintained by the terms of this Lease as of the date of such
damage.
19.2 Condemnation. If the whole or a Substantial Part of the Project shall
be taken or condemned by any governmental or quasi-governmental authority for
any public or quasi-public use or purpose (including sale under threat of such a
taking), then the Term shall cease and terminate as of the date when title vests
in such governmental or quasi-governmental authority, and Rent shall be prorated
to the date when title vests in such governmental or quasi-governmental
authority. If less than a Substantial Part of the Project is taken or condemned
by any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including sale under threat of such a taking), Base
Rent shall be reduced by the ratio that the portion so taken bears to the
rentable square footage of the Project before such taking, effective as of the
date when title vests in such governmental or quasi-governmental authority, and
this Lease shall otherwise continue in full force and effect. Tenant shall have
no claim against Landlord (or otherwise) as a result of such taking, and Tenant
hereby agrees to make no claim against the condemning authority for any portion
of the amount that may be awarded as compensation or damages as a result of such
taking; provided, however, that Tenant may, to the extent allowed by law, claim
an award for moving expenses and for the taking of any of Tenant's property
(other than its leasehold interest in the Premises and in any Additional
Equipment) which does not, under the terms of this Lease, become the property of
Landlord at the termination hereof, as long as such claim is separate and
distinct from any claim of Landlord and does not diminish Landlord's award.
Tenant hereby assigns to Landlord any right and interest it may have in any
award for its leasehold interest in the Premises and in any Additional
Equipment.
ARTICLE 20 DEFAULT
20.1 Events of Default. Each of the following shall constitute an Event of
Default: (i) Tenant fails to pay Rent within fifteen (15) days after notice from
Landlord; provided that no such notice shall be required if two (2) other such
notices shall have been given during the same Lease Year; (ii) Tenant fails to
observe or perform any other term, condition or covenant herein binding upon or
obligating Tenant within sixty (60) days after notice from Landlord [or, in the
case of any such failure which cannot with due diligence be cured within sixty
(60) days, within such additional period, not to exceed an additional one
hundred eighty (180) days, as may be reasonably required by Tenant to cure such
failure with due diligence]; (iii) Tenant abandons or vacates the Premises; (iv)
Tenant makes or consents to a general assignment for the benefit of creditors or
a common law composition of creditors, or a receiver of the Premises or all or
substantially all of Tenant's assets is appointed, or (v) Tenant files a
voluntary petition in any bankruptcy or insolvency proceeding, or an involuntary
petition in any bankruptcy or insolvency proceeding is filed against Tenant and
is not discharged by Tenant within ninety (90) days. Notwithstanding anything to
the contrary in this Section 20.1, the notice required to be given by
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Landlord to Tenant in clause (i) and clause (ii) above shall not be effective
unless also delivered at or about the same time to each of the Members of
Tenant, which Members currently are Manchester Tank & Equipment Co.
("Manchester"), Platinum Propane Holdings LLC ("PPH") and Blue Rhino
Corporation. Such notices shall be delivered to the principal business office of
each such Member. Any or all of such Members shall have the right, on behalf of
Tenant, to timely cure any monetary or non-monetary default described in clause
(i) or (ii) above and such cure shall be effective for all purposes of this
Lease.
20.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, may in
addition to all other rights and remedies provided in this Lease, at law or in
equity:
(i) Terminate this Lease and Tenant's right of use and possession of
the Premises and any Additional Equipment, and recover all damages to which
Landlord is entitled under law, specifically including all of Landlord's
expenses of reletting (including rental concessions to new tenants,
repairs, Alterations, legal fees and brokerage commissions). If Landlord
elects to terminate this Lease, every obligation of the parties shall cease
as of the date of such termination, except that Tenant shall remain liable
for payment of Rent and performance of all other terms and conditions of
this Lease to the date of termination.
(ii) Terminate Tenant's right of use and possession of the Premises
and any Additional Equipment without terminating this Lease, in which event
Landlord may, but shall not be obligated to, relet the Premises and any
Additional Equipment, or any part thereof, for the account of Tenant, for
such rent and term and upon such other conditions as are acceptable to
Landlord. For purposes of such reletting, Landlord is authorized to
redecorate, repair, alter and improve the Premises and any Additional
Equipment to the extent necessary in Landlord's reasonable discretion.
Until Landlord relets the Premises and any Additional Equipment, Tenant
shall remain obligated to pay Rent to Landlord as provided in this Lease.
If and when the Premises and any Additional Equipment are relet and if a
sufficient sum is not realized from such reletting after payment of all
Landlord's reasonable expenses of reletting (including rental concessions
to new tenants, repairs, Alterations, legal fees and brokerage commissions)
to satisfy the payment of Rent due under this Lease for any month, Tenant
shall pay Landlord any such deficiency upon demand. Tenant agrees that
Landlord may file suit to recover any sums due Landlord under this Section
from time to time and that such suit or recovery of any amount due Landlord
shall not be any defense to any subsequent action brought for any amount
not previously reduced to judgment in favor of Landlord.
(iii) Terminate this Lease and Tenant's right of possession of the
Premises and any Additional Equipment, and recover from Tenant the net
present value of the Rent due from the date of termination until the
Expiration Date, discounted at the lesser of the Interest Rate as of the
date of termination or nine percent (9%) per annum.
(iv) Re-enter and repossess the Premises and any Additional Equipment
and remove all persons and effects therefrom, by summary proceeding,
ejectment or other legal action.
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Notwithstanding the foregoing, prior to Landlord exercising any of its remedies
set forth in subsections (i) through (iv) above, (A) Landlord shall provide to
Manchester written notice of its intent to exercise any one or more of the
above-referenced remedies, and (B) pursuant to and in accordance with Section
7.12(b) of that certain Limited Liability Company Agreement, dated April 28,
2000, by and among Landlord, Manchester and PPH, as amended by that certain
First Amendment thereto dated as of September 30, 2001, Manchester shall have
ten (10) days after such written notice to elect to compel Landlord to purchase
Manchester's Units, as defined in that Limited Liability Company Agreement. Upon
the expiration of such ten-day period, Landlord shall be free to exercise any
one or more of the above-referenced remedies.
Notwithstanding the foregoing, nothing in this Section 20.2 shall operate to
relieve Landlord of any duty imposed by applicable law to mitigate its damages.
20.3 Rights Upon Possession. If Landlord takes possession pursuant to this
Article, with or without terminating this Lease, Landlord may, at its option,
enter into the Premises, remove Tenant's Alterations, signs, personal property,
equipment and other evidences of tenancy, and store them at Tenant's risk and
expense or dispose of them, and take and hold possession of the Premises and any
Additional Equipment; provided, however, that if Landlord elects to take
possession only without terminating this Lease, such entry and possession shall
not terminate this Lease or release Tenant, in, in whole or in part, from the
obligation to pay the Rent reserved hereunder for the full Term or from any
other obligation under this Lease.
20.4 No Waiver. If Landlord shall institute proceedings against Tenant and
a compromise or settlement thereof shall be made, the same shall not constitute
a waiver of any other covenant, condition or agreement herein contained, or of
any of Landlord's rights hereunder, except to the extent expressly provided in
the compromise or settlement. No waiver by Landlord of any breach shall operate
as a waiver of such covenant, condition or agreement, or operate as a waiver of
such covenant, condition or agreement itself, or of any subsequent breach
thereof. No payment of Rent by Tenant or acceptance of Rent by Landlord shall
operate as a waiver of any breach or default by Tenant under this Lease. No
payment by Tenant or receipt by Landlord of a lesser amount than the monthly
installment of Rent herein stipulated shall be deemed to be other than a payment
on account of the earliest unpaid Rent, nor shall any endorsement or statement
on any check or communication accompanying a check for the payment of Rent be
deemed an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
20.5 Right of Landlord to Cure Tenant's Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment
or do such act to cure the Event of Default, and charge the amount of the
reasonable expense thereof, together with interest thereon at the Interest Rate,
to Tenant. Such payment shall be due and payable upon demand; however, the
making of such payment or the taking of such action by Landlord shall not be
deemed to cure the Event of Default or to stop Landlord from the pursuit of any
remedy to which Landlord would otherwise be entitled. Any such payment made by
Landlord on Tenant's behalf shall bear interest until paid at the Interest Rate.
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20.6 Late Payment.
(i) If Tenant fails to pay any Rent within the "Grace Period" (as
defined below), Tenant shall pay to Landlord a "Late Charge" (as defined
below). In addition, any Rent payment made after the Grace Period expires
shall bear interest from the date such Rent became due and payable to the
date of payment thereof by Tenant at the Interest Rate. Such Late Charge
and interest shall be due and payable within two (2) days after written
demand from Landlord. The term "Grace Period" means five (5) days after
Rent becomes due and payable; provided, however, that if Landlord changes
its wiring or other payment instructions, then, for the first two (2)
months after Landlord notifies Tenant of each such change, the term "Grace
Period" shall mean ten (10) days after Rent becomes due and payable. The
term "Late Charge" means three percent (3%) of the amount of the overdue
Rent; provided, however, that if any Mortgagee charges Landlord a late fee
of more than three percent (3%) for an overdue mortgage payment, then,
while such Mortgage is in effect, the term "Late Charge" shall equal the
amount of the overdue Rent multiplied by the same percentage [not to exceed
five percent (5%)] that such Mortgagee charges Landlord for an overdue
mortgage payment.
(ii) No Late Charge or interest shall be due with respect to a payment
of Additional Rent that is contested by Tenant and is determined not to be
due.
20.7 Landlord Default. If Landlord shall fail to keep or perform any of its
obligations under this Lease, then Tenant may (but shall not be obligated to do
so) upon the continuance of such failure on Landlord's part for twenty (20) days
after Landlord's receipt of notice from Tenant specifying the failure (or, in
the case of any such failure which cannot with due diligence be cured within
twenty (20) days, within such additional period, if any, as may be reasonably
required by Landlord to cure such failure with due diligence), and without
waiving or releasing Landlord from any obligation, make such payment or perform
such obligation and all sums so paid by Tenant and all necessary and incidental
costs and expenses, including reasonable attorney's fees paid to independent
legal counsel, incurred by Tenant in making such payment or performing such
obligation, together with interest thereon at the Interest Rate from the date of
payment, shall be paid by Landlord to Tenant on demand, and if not so paid by
Landlord, Tenant shall have the right to pursue any legal remedies available to
it to collect payment, but shall not be entitled to offset such payment against
Rent thereafter payable under this Lease.
ARTICLE 21 MORTGAGES
21.1 Subordination. This Lease is subject and subordinate to all ground or
underlying leases and to any Mortgage(s) which may now or hereafter affect such
leases or the Land and to all renewals, modifications, consolidations,
replacements and extensions thereof; provided, however, that this subordination
shall be operative only if the ground lessor or Mortgagee executes a
non-disturbance agreement in favor of Tenant, which may be on the ground
lessor's or Mortgagee's standard form as long as this form includes a provision
that ground lessor, Mortgagee or a purchaser at a foreclosure sale shall
recognize this Lease as long as there is no Event of Default (the
"Non-Disturbance Agreement"). Subject to receipt of a Non-Disturbance Agreement,
Tenant shall execute promptly any instrument confirming such subordination that
Landlord or any ground lessor or Mortgagee may request by notice to Tenant.
Notwithstanding
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the foregoing, before a proceeding to terminate a ground lease or a foreclosure
sale under a Mortgage, the ground lessor or Mortgagee shall have the right to
subordinate the ground lease or Mortgage to this Lease, in which case, in the
event of a termination of the ground lease or a foreclosure under the Mortgage,
this Lease shall continue in full force and effect and Tenant shall attorn to
and recognize as its landlord the ground lessor or the purchaser of Landlord's
interest under this Lease, as case may be. Tenant shall, upon the request of a
purchaser at foreclosure, execute, acknowledge and deliver any instrument that
has for its purpose and effect Tenant's attornment to such purchaser provided
that such instrument contains a customary non-disturbance agreement in favor of
Tenant, which shall include a provision that such purchaser agrees to recognize
this Lease as long as there is no Event of Default.
21.2 Mortgagee Protection. Tenant agrees to give any Mortgagee by certified
mail, return receipt requested, a copy of any notice of default by Landlord
served upon Landlord, provided that before such notice Tenant has been notified
in writing of the address of such Mortgagee. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then Mortgagee shall have an additional thirty (30) days within
which to cure such default; provided, however, that if such default cannot be
reasonably cured within that time, then such Mortgagee shall have such
additional time as may be necessary to cure such default so long as Mortgagee
has commenced and is diligently pursuing the remedies necessary to cure such
default (including the commencement of foreclosure proceedings, if necessary),
in which event this Lease shall not be terminated while such remedies are being
so diligently pursued.
21.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Equipment, any
Additional Equipment, the Building or the Land, any lender (or Mortgagee) shall
request reasonable modifications of this Lease as a condition to such financing,
Tenant shall promptly execute a modification of this Lease, provided such
modifications do not increase the financial obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created or Tenant's
reasonable use and enjoyment of the Premises or any Additional Equipment. Tenant
shall, prior to execution and throughout the Term, upon request from time to
time, provide audited financial statements and non-proprietary documentation
about itself to Landlord or Mortgagee as may be reasonably requested, subject to
appropriate confidentiality conditions.
ARTICLE 22 SURRENDER; HOLDING OVER; PRORATIONS
22.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises and any Additional Equipment to Landlord on the expiration of the Term
or earlier termination of this Lease, (i) in the case of the Project, in
broom-clean condition and in as good condition as when Tenant took possession,
including the repair of any damage to the Premises and any Additional Equipment
caused by the removal of any of Tenant's personal property or trade fixtures
from the Premises, and (ii) in the case of the Equipment and any Additional
Equipment, in as good operating condition as when Tenant took possession,
ordinary wear and tear excepted. Any of Tenant's personal property left on or in
the Premises after the expiration of the Term or earlier termination of this
Lease shall be deemed to be abandoned, and, at Landlord's option, title shall
pass to Landlord under this Lease.
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22.2 Holding Over. In the event that Tenant shall not immediately surrender
the Premises to Landlord on the expiration of the Term or earlier termination of
this Lease, Tenant shall be deemed to be a tenant at sufferance upon all of the
terms and provisions of this Lease, except the monthly Base Rent shall be twice
the monthly Base Rent in effect during the last month of the Term.
Notwithstanding the foregoing, if Tenant shall hold over after the expiration of
the Term or earlier termination of this Lease, and Landlord shall desire to
regain possession of the Premises and any Additional Equipment, then Landlord
may forthwith re-enter and take possession of the Premises and any Additional
Equipment. Tenant shall indemnify Landlord against all damages, losses, expenses
and costs (including reasonable attorneys' fees and court costs) permitted under
law that Landlord may incur as a result of Tenant's holdover use and occupancy
of the Premises and any Additional Equipment.
22.3 Prorations.
(i) All Taxes, operating expenses pertaining to the operation of the
Premises and any Additional Equipment incurred by Tenant, utility expenses,
water and sewer rents and charges, front-foot benefit charges (if
applicable), or similar charges or fees shall be prorated as of the
Expiration Date.
(ii) All Service Contracts to be assigned to Landlord shall be
prorated between the parties as of the Expiration Date, and the costs of
terminating any contracts or agreements that are not assumed by Landlord
shall be borne by Tenant.
(iii) Tenant shall pay for, and shall indemnify Landlord against any
liability for, services performed or for work on the Premises or any
Additional Equipment undertaken by or at the direction of Tenant prior to
the expiration of the Term.
(iv) On the expiration of the Term, (A) all prorations between
Landlord and Tenant provided for pursuant to the terms of this Lease shall
be made on the basis of estimates using the most current information
available as of the expiration of the Term; and (B) a suitable escrow (the
"Escrow"), the amount and terms of which shall be satisfactory to Landlord
and Tenant, shall be established by Landlord and held by an independent
escrow agent selected by Landlord and Tenant to provide for payment of
utility charges, operating expenses, contract liabilities accrued, and/or
work on the Premises contracted for by Tenant, that are due and payable by
Tenant pursuant to the terms of this Lease, but for which final bills are
not available on the expiration of the Term. Within forty-five (45) days
after the expiration of the Term or as soon thereafter as is reasonably
possible, the parties shall make a final settlement of all prorations to be
made pursuant to the terms of this Lease, and following such final
settlement, any sums remaining in the Escrow shall be paid by escrow agent
to the applicable party.
ARTICLE 23 QUIET ENJOYMENT
Landlord covenants that provided no Event of Default has occurred and is
continuing, Tenant shall during the Term peaceably and quietly occupy and enjoy
use and possession of the Premises and any Additional Equipment without
molestation or hindrance by Landlord or any party claiming through or under
Landlord, subject to the provisions of this Lease and any
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Mortgage to which this Lease is subordinate and easements, conditions and
restrictions of record affecting the Land; provided, however, that nothing
herein shall derogate the provisions of Section 21.1 concerning non-disturbance
as a condition of subordination or Section 2.3 concerning limitations on future
covenants, conditions and restrictions of record.
ARTICLE 24 TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
24.1 Definition. As used in this Lease, the term "Hazardous Materials"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including oil, 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.
24.2 Existing Hazardous Materials. As of the date hereof, the Buildings may
contain certain Hazardous Materials, including lead in the pipes supplying
drinking water and asbestos in certain materials (collectively, the "Existing
Hazardous Materials"). Tenant is leasing the Premises in its "as is" condition
with knowledge of the possible presence of the Existing Hazardous Materials.
Landlord shall not be required to abate any of the Existing Hazardous Materials,
except to the extent required by law. Tenant hereby releases Landlord from any
claims that it may have against Landlord pertaining to any Existing Hazardous
Materials in any way.
24.3 General Prohibition. Except for the Existing Hazardous Materials,
Tenant and Affiliates shall not cause or permit any Hazardous Materials to be
generated, produced, brought upon, used, stored, treated, discharged, released,
spilled or disposed of on, in, under or about the Premises or any Additional
Equipment by Tenant or its Agents, Affiliates, sublessees or assignees without
the prior written consent of Landlord; provided, however, that Tenant and
Affiliates, without Landlord's consent, may use toner, ordinary cleaning
supplies, and other substances commonly found in manufacturing facilities or
used in Tenant's or Affiliates' normal business operations as long as they are
used and stored in compliance with law. Landlord shall be entitled to take into
account such factors or facts as Landlord may in its good faith business
judgment determine to be relevant in determining whether to grant, condition or
withhold consent to Tenant's proposed activity with respect to Hazardous
Materials. In no event, however, shall Landlord be required to consent to the
installation or use of any storage tanks in, on or under the Premises, the
Buildings or the Land. If Landlord consents to the generation, production, use,
storage, treatment or disposal of Hazardous Materials in or about the Premises
or any Additional Equipment by Tenant, its Agents, Affiliates, sublessees or
assignees, then, in addition to any other requirements or conditions that
Landlord may impose in connection with such consent, (i) Tenant promptly shall
deliver to Landlord copies of all permits, approvals, filings, and reports
reflecting the legal and proper generation, production, use, storage, treatment
or disposal of all Hazardous Materials generated, used, stored, treated or
removed from the Premises or any Additional Equipment and, upon Landlord's
request, copies of all hazardous
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waste manifests relating thereto, and (ii) upon expiration or earlier
termination of this Lease, Tenant shall cause all Hazardous Materials arising
out of or related to the use or occupancy of the Premises or any Additional
Equipment during the Term by Tenant or its Agents, Affiliates, sublessees or
assignees to be removed from the Premises and any Additional Equipment and
transported for use, storage or disposal in accordance with all applicable laws,
regulations and ordinances and Tenant shall provide Landlord with evidence
reasonably satisfactory to Landlord of the same. Notwithstanding the foregoing,
nothing in this Article shall be construed to require Tenant to (i) remove any
asbestos present in any Building as of Commencement Date, or (ii) remediate lead
in the drinking water as of the Commencement Date.
24.4 Indemnification. Tenant shall indemnify, defend and hold Landlord
harmless from any and all actions (including remedial or enforcement actions of
any kind, administrative or judicial proceedings, and orders or judgments
arising out of or resulting therefrom), costs, claims, damages (including
punitive damages), expenses (including reasonable attorneys', consultants' and
experts' fees, court costs and amounts paid in settlement of any claims or
actions), fines, forfeitures or other civil, administrative or criminal
penalties, injunctive or other relief (whether or not based upon personal or
bodily injury, property damage, contamination of, or adverse effects upon, the
environment, water tables or natural resources), liabilities or losses permitted
by law and incurred by Landlord arising from (i) a breach of Section 24.3 by
Tenant, its Agents, Affiliates, sublessees or assignees, or (ii) any claims made
by Tenant's Agents, Affiliates, sublessees or assignees pertaining to the
Existing Hazardous Materials in any way; provided, however, that this indemnity
shall not extend to any claims arising from any asbestos remediation made by or
at the direction of Landlord.
24.5 Notice. In the event that any governmental agency or entity having
jurisdiction over the Premises or any Additional Equipment requires the removal
of any Hazardous Materials, Tenant shall be responsible for removing those
Hazardous Materials arising out of or related to the use or occupancy of the
Premises or any Additional Equipment both before and after the Commencement Date
by Tenant or its Agents, Affiliates, sublessees or assignees, but not those of
its predecessors. Notwithstanding the foregoing, Tenant shall not take any
remedial action in or about the Premises or any Additional Equipment, nor enter
into any settlement agreement, consent decree or other compromise with respect
to any claims relating to any Hazardous Materials in any way connected with the
Premises or any Additional Equipment without first notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to appear,
intervene or otherwise appropriately assert and protect Landlord's interest with
respect thereto. Except to the extent attributable to work undertaken by or on
behalf of Landlord, Tenant immediately shall notify Landlord in writing of: (i)
any spill, release, discharge or disposal of any Hazardous Materials in, on or
under the Premises or any Additional Equipment or any portion thereof during the
Term, (ii) any enforcement, cleanup, removal or other governmental or regulatory
action instituted, contemplated or threatened (if Tenant has notice thereof)
pursuant to any Hazardous Materials laws; (iii) any claim made or threatened by
any person against Tenant or with respect to the Premises or any Additional
Equipment relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials; and
(iv) any reports made to any environmental agency or entity arising out of or in
connection with any Hazardous Materials in, on, under or about or removed from
the Premises or any Additional Equipment during the Term, including any
complaints, notices, warnings, reports or asserted violations in connection
therewith of which
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Tenant has notice. Tenant also shall supply to Landlord as promptly as possible,
and in any event within five (5) business days after Tenant first receives or
sends the same, copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to the Premises or any Additional
Equipment or Tenant's use or occupancy thereof.
24.6 Survival. The respective rights and obligations of Landlord and Tenant
under this Article 24 shall survive the expiration or earlier termination of
this Lease.
ARTICLE 25 MISCELLANEOUS
25.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises or any Additional Equipment, except as herein
expressly set forth, and no rights, privileges, easements or licenses are
acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises and any Additional Equipment shall accept the
Premises and any Additional Equipment, the Equipment and the Buildings "AS IS,"
and such taking of possession shall be conclusive evidence that the Premises and
any Additional Equipment, the Equipment and the Buildings are in good and
satisfactory condition at the time of such taking of possession.
25.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
25.3 Brokers. Landlord and Tenant each represents and warrants to the other
that it has not employed any broker, agent or finder relating to this Lease.
Landlord shall indemnify and hold Tenant harmless, and Tenant shall indemnify
and hold Landlord harmless, from and against any claim for brokerage or other
commission arising from or out of any breach of the indemnitor's representation
and warranty.
25.4 Estoppel Certificate. Tenant shall, without charge, at any time and
from time to time, within five (5) days after request therefor by Landlord,
Mortgagee, any purchaser of the Land, the Equipment, any Additional Equipment or
any Building or any other interested person, execute, acknowledge and deliver to
such requesting party a written estoppel certificate certifying, as of the date
of such estoppel certificate, the following: (i) that this Lease is unmodified
and in full force and effect (or if modified, that the Lease is in full force
and effect as modified and setting forth such modifications); (ii) that the Term
has commenced (and setting forth the Commencement Date and Expiration Date);
(iii) that Tenant is occupying the Premises (or, if Tenant is not occupying the
Premises, so stating); (iv) the amounts of Base Rent and Additional Rent
currently due and payable by Tenant; (v) that there are no existing set-offs,
charges, liens, claims or defenses against the enforcement of any right
hereunder, including Base Rent or Additional Rent (or, if alleged, specifying
the same in detail); (vi) that no Base Rent (except the first installment
thereof) has been paid more than thirty (30) days in advance of its due date;
(vii) that Tenant has no knowledge of any then uncured default by Landlord of
its obligations under this Lease (or, if Tenant has such knowledge, specifying
the same in detail); (viii) that Tenant is not in default (or, if Tenant is in
default, specifying the same in detail); (ix) that the address to which notices
to Tenant should be sent is as set forth in the Lease (or, if not,
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specifying the correct address); and (x) any other certifications consistent
with this Lease requested by Landlord, with any qualifications to such
certifications that are needed for accuracy.
25.5 No Counterclaims. In the event Landlord commences any proceedings for
nonpayment of Rent, Tenant shall not interpose any counterclaims, except to the
extent compulsory under applicable procedure. This shall not, however, be
construed as a waiver of Tenant's right to assert such claims in any separate
action brought by Tenant.
25.6 Notices. All notices, demands, requests or other communications
hereunder shall be in writing and shall be deemed duly given if delivered in
person or upon receipt, if delivered by a recognized overnight delivery service
providing for a receipted delivery (e.g., Federal Express), if to Landlord to
Landlord's Address specified below or if to Tenant to Tenant's Address specified
below. Landlord and Tenant may from time to time by written notice to the other
designate another or a different address for receipt of future notices.
Landlord's Address Mark Castaneda
c/o Blue Rhino Corporation
1420 Cambridge Plaza Drive
Winston-Salem, NC 27104
Tenant's Address Dave Slone
c/o R4 Technical Center
1420 Cambridge Plaza Drive
Winston-Salem, NC 27104
25.7 Invalidity of Particular Provisions. If any provisions of this Lease
or the application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision to persons or circumstances other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each provision of
this Lease shall be valid and be enforced to the full extent permitted by law.
25.8 Gender and Number. All terms and words used in this Lease, regardless
of the number or gender in which they are used, shall be deemed to include any
other number or gender as the context may require.
25.9 Benefit and Burden. Subject to the provisions of Article 8 and Section
21.1, and except as otherwise expressly provided in this Lease, the provisions
of this Lease shall be binding upon, and shall inure to the benefit of, the
parties hereto and each of their respective representatives, heirs, successors
and assigns. Landlord may freely and fully assign its interest hereunder.
25.10 Entire Agreement. This Lease (which includes the Exhibits attached
hereto) contains and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise, between the
parties not contained in this Lease shall be of any force or effect. This Lease
(other than the Rules and Regulations, which may be changed from time to time as
provided herein) may not be modified, changed or terminated in
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whole or in part in any manner other than by an agreement in writing duly signed
by Landlord and Tenant.
25.11 Authority.
(i) The person executing this Lease on behalf of Tenant hereby
represents and warrants that Tenant is a duly formed and validly existing
limited liability company, in good standing, and qualified to do business
in the State of North Carolina, that the limited liability company has full
power and authority to enter into this Lease and that he or she is
authorized to execute this Lease on behalf of the limited liability
company.
(ii) The person executing this Lease on behalf of Landlord hereby
represents and warrants that Landlord is a duly formed and validly existing
corporation, in good standing and qualified to do business in the State of
North Carolina, that the corporation has full power and authority to enter
into this Lease and that he or she is authorized to execute this Lease on
behalf of the corporation.
25.12 Attorneys' Fees. If, as a result of any default of Landlord or Tenant
in its performance of any of the provisions of this Lease, the other party uses
the services of an attorney in order to secure compliance with such provisions
or recover damages therefor, or to terminate this Lease or evict Tenant, the
non-prevailing party shall reimburse the prevailing party upon demand for any
and all reasonable attorneys' fees and expenses so incurred by the prevailing
party.
25.13 Interpretation. "Include," "includes," and "including" mean
considered as part of a larger group, and not limited to the items recited.
"Shall" means is obligated to. "May" means "is permitted to." The necessary
grammatical changes required to make the provisions hereof apply either to
corporations, partnerships, or individuals, men or women, as the case may be,
shall in all cases be assumed as though in each case fully expressed.
25.14 No Personal Liability; Sale. Neither Landlord nor its Agents, whether
disclosed or undisclosed, shall have any personal liability under any provision
of this Lease. In the event of a judgment in favor of Tenant which remains
unpaid, Tenant's right of redress, execution and levy shall be limited to the
equity of Landlord in the Premises and any Additional Equipment. If the original
Landlord hereunder, or any successor owner of the Premises and any Additional
Equipment, shall sell or convey the Premises and any Additional Equipment, all
liabilities and obligations on the part of the original Landlord, or such
successor owner, under this Lease occurring thereafter shall terminate as of the
day of such sale, and thereupon all such liabilities and obligations shall be
binding on the new owner, subject to the limitations on liability provided in
this Section 25.14 and elsewhere in this Lease. Tenant agrees to attorn to such
new owner as long as such new owner agrees to recognize this Lease. Any
successor to Landlord's interest shall not be bound by any payment of Base Rent
or Additional Rent for more than one (1) month in advance.
25.15 Force Majeure. Except for Tenant's obligations to pay Rent hereunder,
neither Landlord nor Tenant shall be required to perform any of its obligations
under this Lease, nor shall such party be liable for loss or damage for failure
to do so, nor shall the other party thereby
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be released from any of its obligations under this Lease, where such failure by
the non-performing party arises from or through acts of God, strikes, lockouts,
labor difficulties, explosions, sabotage, accidents, riots, civil commotions,
acts of war, results of any warfare or warlike conditions in this or any foreign
country, fire or casualty, legal requirements, energy shortage or other causes
beyond the reasonable control of the non-performing party, unless such loss or
damage results from the willful misconduct or gross negligence of the
non-performing party.
25.16 Headings. Captions and headings are for convenience of reference
only.
25.17 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not
record such a memorandum or this Lease without Landlord's consent. In the event
Tenant requests recordation of a memorandum of this Lease, Tenant shall be
obligated to pay all costs, fees and taxes, if any, associated with such
recordation, and Landlord shall cooperate with any request by Tenant for a
memorandum of lease.
25.18 Effectiveness. The furnishing of the form of this Lease shall not
constitute an offer and this Lease shall become effective upon and only upon its
execution by and delivery to each party hereto.
25.19 Governing Law. This Lease is governed by and shall be construed in
accordance with the laws of the State of North Carolina.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease under seal
as of the date first above written.
ATTEST/WITNESS LANDLORD:
BLUE RHINO CORPORATION, a Delaware
/s/ Loretta C. Hall corporation
- ----------------------------
By: /s/ Mark Castaneda (SEAL)
----------------------------------------
Name: Mark Castaneda
---------------------------------
Title: CFO
---------------------------------
ATTEST/WITNESS TENANT:
R4 TECHNICAL CENTER - NORTH
CAROLINA, LLC, a Delaware
limited liability company
/s/ Abbye R. Caudle
- -----------------------------
By: /s/ David Slone (SEAL)
----------------------------------------
Name: David Slone
---------------------------------
Title: President
---------------------------------
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
Beginning at an existing nail in the Intersection of the centerlines of Buck
Shoals Road (SR 1103) and Burgiss Road (SR 1112); thence with the centerline of
Buck Shoals Road the following three (3) calls: N 06 degrees 23' 17" W, 334.83
feet to a point; N 00 degrees 47' 46" W, 185.99 feet to a point; and N 03
degrees 40' 07" E, 395.86 feet to a new nail; thence with the southern boundary
of Lydall Atlantic, Inc. S 85 degrees 57' 32" E, 633.57 feet to an existing iron
pipe; thence continuing with the southern boundary of Lydall Atlantic, Inc. S 42
degrees 35' 09" E, 231.68 feet to a new iron pipe; thence a new line with
Millard F. Ashley, Sr. S 00 degrees 20' 28" W, 884.18 feet to a new nail in the
centerline of Burgiss Road (SR 1112); thence with the centerline of Burgiss Road
the following five (5) calls: N 50 degrees 49' 29" W, 66.94 feet to a point;
along a curve to the left having a radius of 331.10 feet, a chord bearing N 66
degrees 48' 28" W, and a chord distance 213.84 feet to a point; N 85 degrees 38'
52" W, 54.28 feet to a point; along a curve to the right having a radius of
1,848.46 feet, a chord bearing N 85 degrees 02' 34" W, and a chord distance
275.43 feet to a point; and N 80 degrees 46' 13" W, 194.54 feet to the point and
place of BEGINNING, containing 17.000 Acres more or less.
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EXHIBIT B
DESCRIPTION OF THE BUILDINGS
Office
This building is located at the northwestern side of the property and is
used for administrative purposes relating to the business. The interior is
divided into offices, restrooms, break rooms, storage rooms and equipment rooms.
This business is briefly described as follows:
Size: 4,930 square feet
Foundation: Continuous reinforced concrete.
Exterior walls: Insulated metal frame with
split-block approximately 4' high
across the front and sides.
Roof system: Steel bar joists with metal standing
seam cover.
Interior finish: Carpet or the floor covering,
painted drywall walls, acoustic tile
ceilings and recessed fluorescent
lighting. Building has central heat and
air conditioning.
Plumbing: 1 restroom B 3 fixtures and 3 restrooms
with 2 fixtures each.
Other: Break rooms have custom cabinets with
a small one compartment stainless
steel sink and no built-in appliances.
Production Building
To the south of the office building is the office building. This building
is used for refurbishing and filing the small propane tanks. It is divided into
two separate areas with a 4-hour masonry firewall and automatic fire doors. This
building is briefly described as follows:
Size: 23,900 square feet
Foundation: Continuous reinforced concrete.
Exterior walls: Insulated metal siding.
Roof system: Steel bar joists with metal cover.
Interior finish: 6 inch reinforced unfinished concrete
floors, metal walls to 8 feet high
with exposed insulation above and
acoustic tile ceiling. Building is
heated by hot water pipes imbedded in
concrete floor. Water is heated by a
boiler in an adjacent shed and piped
underground to building.
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Plumbing: 1 restroom with 3 fixtures and 1
restroom with 2 fixtures. All of the
building has a wet sprinkler system
that obtains water from a 75,000 gallon
tank located at the northeastern
corner of the lot.
Other: All fixtures are explosion proof.
Metal support columns are encased in
concrete block. Building has two
drive-in doors.
Storage Building
To the south of the production building is the storage building. This
building is used for storing the small propane tanks until they are ready for
refurbishing or shipping. It is divided into two separate areas with a 4-hour
masonry firewall and automatic fire doors. This building is briefly described as
follows:
Size: 17,955 square feet
Foundation: Continuous reinforced concrete.
Exterior walls: Wall on one side is concrete block
with exposed insulation. Other sides
of the building are open.
Roof system: Steel bar joists with metal cover.
Interior finish: 6 inch reinforced unfinished concrete
floors and acoustic tile ceiling.
Building has no heat.
Plumbing: No restrooms. All of the building has
a dry sprinkler system.
Other: All fixtures are explosion proof.
Metal support columns are encased in
concrete block. Building has 7 dock
height truck walls with load levelers.
Fire wall divides these wells into 4 on
one side and 3 on the other.
Service Building
This building is located east of the production building. It is primarily
used for assembly and storage of patio heaters and cage displays for the propane
gas cylinders that are sent to retailers. This building is briefly described as
follows:
Size: 4,800 square feet
Foundation: Continuous reinforced concrete.
Exterior walls: 1,025 sq. ft. at the western end is
enclosed with insulated metal panels,
remainder has 1 metal wall and the
other three are open.
Roof system: Steel bar joists with metal cover.
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Interior finish: No finish or heat.
Plumbing: None.
Other: Building has 2 dock height truck wells.
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EXHIBIT C
DESCRIPTION OF THE EQUIPMENT
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EXHIBIT D
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, vestibules, or stairways, or
other parts of any Building not occupied by Tenant shall not be obstructed or
encumbered or used for any purpose other than ingress and egress to and from the
Premises.
2. No signs, awnings or other projections shall be attached to the outside
walls of any Building without the prior written consent of Landlord.
3. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of any Building without the prior written consent of
Landlord.
4. The water and wash closets and other plumbing fixtures shall not be used
for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by Tenant.
5. Subject to Article 10 of this Lease, there shall be no marking,
painting, drilling into or in anyway defacing any part of the Premises or any
Building. Tenant shall not construct, maintain, use or operate within the
Premises any sound system that can be heard outside of any Building, except to
the extent required by law.
6. No animals, birds or pets of any kind shall be brought into or kept in
or about the Premises, except for seeing eye dogs.
7. Subject to Section 24.3 of this Lease, no inflammable, combustible, or
explosive fluid, chemical or radioactive substance shall be brought or kept upon
the Premises.
8. Tenant, upon termination of its tenancy, shall provide to Landlord all
keys for the Premises.
9. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
10. There shall not be used in any space, or in the public halls of any
Building, either by Tenant or by jobbers or others in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires.
11. Where carpet is installed over access plates to under-floor ducts,
Tenant will be required, at Tenant's expense, to provide access to said access
plates when necessary. This rule shall not apply to carpet in existence on the
date of this Lease.
12. Tenant shall not permit the accumulation of trash in the public
corridors.
13. Tenant shall not overload the floors or exceed the maximum floor weight
limits of the Premises.
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14. Tenant agrees not to operate any machinery in the Premises which may
cause vibration or damage to the Premises.
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APPENDIX A
EQUIPMENT SCHEDULE
Description of Equipment:
Manufacturer of Equipment:
Supplier of Equipment:
Equipment Cost (inclusive of all sales and use taxes, transportation, delivery
and other equipment-related charges paid by Landlord):
Financial Terms:
Base Rent: each monthly installment of Base Rent shall
be equal to one percent (1%) of Equipment
Cost
Commencement Date:
Expiration Date:
Term:
Security Deposit:
Tenant hereby acknowledges, agrees and certifies that the equipment as set
forth and described in this Equipment Schedule (the "Additional Equipment") is
in Tenant's possession, has been inspected by Tenant to its complete
satisfaction, has been found to be in good working order, repair and condition
and fully equipped to operate as required under applicable law for its purpose,
is of a size, design, capacity and manufacture selected by Tenant and suitable
for Tenant's purposes, and is, as of the date set forth below, unconditionally,
irrevocably and fully
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accepted by Tenant for lease under the Lease. Tenant hereby further
unconditionally and irrevocably reaffirms its acknowledgements and agreements in
the Lease. All capitalized terms used herein that are not otherwise defined
herein shall have the meanings given such terms in the Lease.
Tenant hereby represents and warrants to Landlord that on the date hereof:
(i) The representations and warranties of Tenant set forth in the Lease and
all certificates and opinions delivered in connection therewith were true and
correct in all material respects when made and are true and correct in all
material respects as of the date hereof, with the same force and effect as if
the same had been made on this date.
(ii) Tenant has satisfied or complied with all conditions precedent and
requirements as set forth in the Lease that are required to be to have been
satisfied or complied with on or prior to the date thereof.
(iii) No Event of Default under the Lease has occurred and is continuing on
the date hereof, and no event has occurred which, with the passage of time, the
giving of notice or both, would constitute an Event of Default.
(iv) Tenant has obtained, and there are in full force and effect, such
insurance policies with respect to the Additional Equipment as are required to
be obtained under the terms of the Lease.
(v) The facts, terms, information, description and costs set forth in this
Equipment Schedule are true, complete, accurate and correct.
Date of unconditional, irrevocable and final acceptance by Tenant:
__________________
IN WITNESS WHEREOF, Tenant has caused this Equipment Schedule to be duly
executed by its duly authorized officer as of the _____ day of ______________,
______.
R4 TECHNICAL CENTER - NORTH CAROLINA, LLC
By: (SEAL)
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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