EXHIBIT 10.14
STATE OF NORTH CAROLINA )
) LEASE AGREEMENT
COUNTY OF FORSYTH )
________________________________________________________________________________
THIS LEASE AGREEMENT ("Lease") is made and entered into as of the 4/th/ day
of December 1998 by and between Rhino Real Estate LLC, a North Carolina limited
liability company ("Landlord") and Blue Rhino Corporation, a Delaware
corporation ("Tenant").
W I T N E S S E T H :
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In consideration of the rents, covenants and agreements hereinafter
reserved and contained on the part of Tenant to be performed, Landlord hereby
grants, demises and leases to the Tenant, and Tenant hereby takes and hires from
Landlord the two (2) office buildings owned by the Landlord located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, each containing seven thousand ninety (7,090) square feet of
space together with the parking lots, surrounding grounds, appurtenances,
rights, interests, easements and privileges in any way pertaining thereto (the
"Premises").
THIS LEASE is made upon the following terms and conditions:
ARTICLE I
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TERM
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Section 1.01. Commencement Date. The term of this Lease shall commence on
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January 1, 1999.
Section 1.02. Length of Term. The term of this Lease shall be for a period
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of three (3) years beginning on the Commencement Date (the "Term").
Section 1.03. Option to Extend. Provided it is not in default hereunder,
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Tenant shall have the option to extend the term of this Lease for an additional
three (3) years provided Tenant gives Landlord written notice of its election to
extend at least six (6) months prior to the end of the original Term hereof. All
of the provisions hereof shall remain the same during any extension except the
annual rent shall be increased by nine (9%) percent.
Section 1.04. No Warranties by Landlord. LANDLORD MAKES NO WARRANTY,
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EXPRESS OR IMPLIED, TO ANYONE, AS TO THE FITNESS, MERCHANTABILITY, DESIGN,
CONDITION, CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE PREMISES. LANDLORD
DISCLAIMS ANY FURTHER LIABILITY FOR LOSS, DAMAGE OR INJURY TO TENANT OR THIRD
PARTIES AS A RESULT OF ANY CONDITION OF THE PREMISES. REGARDLESS OF CAUSE,
LANDLORD SHALL NOT BE LIABLE FOR LOSS OF PROFITS OR ANY OTHER DIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES. LANDLORD LEASES THE PREMISES "AS IS".
ARTICLE II
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RENT
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Section 2.01. Rent. During the Term hereof, Tenant shall pay to Landlord
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the annual rent of $212,700 payable in equal monthly installments of $17,725 in
advance, on or before the 10th day of each month.
Section 2.02. Late Charge. Tenant agrees that if rent or any other sum is
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due and payable pursuant to this Lease, and such amount remains due and unpaid
ten (10) days after said amount is due, such amount shall be increased by a late
charge equal to four (4%) percent of the amount due. The amount of the late
charge shall be reassessed and added to Tenant's obligation for each successive
monthly period until paid. The provisions of this Section shall not in any way
affect Landlord's remedies for default pursuant to this Lease.
Section 2.03. Triple Net Lease. It is the intention of the parties hereto
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that the Landlord shall receive the rents and any sum or sums which may become
payable hereunder by the Landlord under any contingency free from all taxes,
charges, expenses, damages and deductions of every kind whatsoever, and that the
Tenant shall and hereby expressly agrees to pay all such other sums which,
except for the execution and delivery of this Lease, would have been chargeable
against the Premises and payable by Landlord.
ARTICLE III
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USE
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Section 3.01. Use of Premises. The Premises may be used for general office
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space and related purposes and for no other use or purpose without the prior
written consent of the Landlord in each instance.
ARTICLE IV
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TAXES
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Section 4.01. Personal Property Tax. Tenant shall pay before delinquency,
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all taxes, assessments, license fees and other charges that are levied against
any of Tenant's personal property installed or located in or on the Premises,
and that become payable during the term.
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Section 4.02. Real Property Tax. Tenant shall pay all Real Property taxes
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and assessments on the Premises including any increases in value or rate. Tenant
shall pay and discharge such taxes no later than the due date, and shall provide
Landlord evidence of such payment. The Real Property taxes shall be prorated
between the parties for any partial years during the Term hereof.
ARTICLE V
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MAINTENANCE, REPAIRS AND ALTERATIONS
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Section 5.01. Tenant's Responsibilities.
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(a) At all times during the Term, Tenant shall at its own expense, put
and maintain in thorough repair and in good and safe condition all of
the Premises. Tenant shall keep and maintain the Premises in good
order, condition and repair, in a clean, sanitary, and safe condition
in accordance with the laws of the State of North Carolina, and in
accordance with all applicable directions, rules, and regulations of
any proper officer of the governmental agencies having jurisdiction
over the Premises. Tenant shall permit no waste, damage, or injury to
the Premises. If at any time and from time to time during the Term,
and any renewal thereof, Tenant shall fail to make any maintenance,
repair or replacements in and to the Premises as required in this
Lease, after thirty (30) days' written notice to Tenant or to commence
and diligently complete repairs that cannot be completed within thirty
(30) days, Landlord shall have the right, but not the obligation, to
enter the Premises and to make the same for and on behalf of Tenant,
and all sums so expended by Landlord shall be deemed to be additional
rent hereunder and payable to Landlord upon demand.
(b) At the expiration or other termination of the Term, Tenant will
surrender the Premises in good order, repair and condition.
Section 5.02. Alterations. Without the prior written consent of Landlord,
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Tenant shall not make any alterations, changes and improvements to the Premises.
In the event Landlord consents to such alterations, Tenant shall (a) pay all
costs and expense thereof, and (b) make such alterations, changes and
improvements in a good and workmanlike manner, with new materials of first-class
quality, and in accordance with all applicable laws and building regulations.
Section 5.03. Landlord's Right of Access. Landlord and its agents shall
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have free access to the Premises during all reasonable and regular business
hours for the purpose of examining the same, to ascertain if they are in good
repair, to make any repairs not made by Tenant and to exhibit the same to
prospective purchasers or tenants.
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ARTICLE VI
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UTILITIES
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Section 6.01. Tenant to Provide Utilities. Tenant shall pay all light,
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power, gas, telephone, water, fuel and other utility charges and shall be
responsible for its own heat and air conditioning. Landlord shall not be liable
for any interruption of gas, water, heat, air-conditioning, electricity or other
utility in the Premises.
ARTICLE VII
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SUBORDINATION
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Section 7.01. Subordination of Lease. The Tenant agrees that this Lease,
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shall be subordinate to any mortgages or deeds of trust presently or hereafter
placed upon the Premises, or any part thereof, and to any and all advances, past
or future, made thereunder. The subordination shall be automatic and shall not
require the execution of any additional subordination agreement. The Tenant
agrees, however, immediately upon the request of the Landlord, to execute a
subordination agreement in recordable form.
Section 7.02. Quiet Enjoyment. Landlord covenants that so long as Tenant
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continues to pay rent and is otherwise in compliance with the terms of this
Lease, Tenant shall at all times during the Term, peaceably and quietly enjoy
the Premises without any disturbance from the Landlord or from any other person
claiming through Landlord.
ARTICLE VIII
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ASSIGNMENT AND SUBLETTING
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Section 8.01. Restriction. Tenant shall not cause or permit, by operation
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of law or otherwise, any assignment, encumbrance or transfer of this Lease or
any estate or interest therein without the prior written consent of Landlord.
Tenant shall not sublet the Premises or any part thereof without the prior
written consent of Landlord. Landlord's consent to any such assignment, transfer
or subletting shall not constitute consent to any further assignment or
subletting.
ARTICLE IX
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INSURANCE
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Section 9.01. Liability Insurance. Tenant shall procure, keep in force, and
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pay for comprehensive public liability insurance indemnifying Landlord and
Tenant against all claims and demands for injury to or death of persons or
damage to property which may be
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claimed to have occurred upon the Premises in amounts which shall be not less
than one million ($1,000,000) dollars for general liability.
Section 9.02. Hazard Insurance. During this Lease, Tenant at its own cost
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and expense, shall insure the Premises and any improvements thereon in an amount
equal to one hundred (100%) percent of the replacement value of such
improvements. Tenant shall pay the insurance premiums when due and shall
promptly exhibit to Landlord paid receipts or copies thereof.
Section 9.03. Terms of Insurance. For all insurance hereunder, Landlord
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shall be a named insured on each policy and Tenant's insurance shall not be
cancelled without thirty (30) days prior written notice from the insurance
company to the Landlord.
Section 9.04. Waiver of Subrogation. Tenant and Landlord each hereby agree
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(to the extent that such agreement does not invalidate coverage under any policy
of insurance) to mutually release and relieve the other from all claims and
liabilities arising from or caused by any hazard covered by insurance on the
Premises and/or the property of which the Premises are a part, or covered by
insurance in connection with property on or activities conducted in or about the
Premises, regardless of the cause of the damage or loss, provided that this
release shall apply only to the extent that such loss is covered by such
insurance.
ARTICLE X
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NOTICES
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Section 10.01. Notice Delivery. Any notice which, under this Lease or under
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any law now or hereafter in force, is required to be given may be given
personally, telecopied or by certified or registered mail, return receipt
requested or by a nationally recognized overnight service at the following
addresses envelope directed as follows:
(a) To Landlord at: Rhino Real Estate LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) To Tenant at: Blue Rhino Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or at such other address as Tenant or Landlord may designate in writing.
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ARTICLE XI
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MEMORANDUM OF LEASE
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Section 11.01. Recording of Memorandum. Either Landlord or Tenant may
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record this Lease. Either party shall, at the request of the other, execute,
acknowledge and deliver at any time a Memorandum of Lease in due form proper for
recordation prepared by the requesting party.
ARTICLE XII
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DAMAGE OR DESTRUCTION OF PREMISES BY FIRE
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OR OTHER CASUALTY
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Section 12.01. Repair After Casualty.
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(a) In the event that the Premises are damaged or destroyed by fire or
other casualty, except as otherwise provided herein and to the extent
of any insurance proceeds received, Landlord shall commence promptly,
and with reasonable dispatch continue, to restore the Premises
(excluding Tenant's property) to substantially the same condition as
existed immediately preceding the damage or destruction. All insurance
proceeds for damage or destruction to the Premises by fire or other
casualty shall be paid directly to Landlord, to be held in trust and
applied to the payment of the restoration. If as a result of such
damage or destruction the Premises shall be partially or totally
unsuitable or unfit for Tenant's purposes, use and occupation, then
and in that event the rental herein reserved shall be reduced and
adjusted in a proportionate amount as determined by Landlord until the
Premises have been restored and repaired.
(b) If Landlord does not receive sufficient insurance proceeds to pay for
the cost of the complete repair or restoration, then either party may
terminate this Lease upon thirty (30) days written notice to the
other party.
Section 12.02. Right to Cancel. If the Premises are destroyed or damaged to
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the extent of seventy-five percent (75%) of their full insurable value
(excluding land), or during the last year of the Term to the extent of
twenty-five percent (25)% of their then full insurable value (excluding land),
then Tenant or Landlord shall have the right to cancel and terminate this Lease
as of the date of such damage or destruction by giving written notice thereof
within thirty (30) days after the date of said damage or destruction, and all
insurance proceeds received or receivable under any policy of insurance shall be
retained by Landlord.
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ARTICLE XIII
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DEFAULT
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Section 13.01. Events of Default.
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(a) The happening of any one or more of the following listed events shall
constitute a breach of this Lease on the part of Tenant, namely:
(1) The failure of Tenant to pay any rent or other payment or charge
payable under this Lease when the same is due and payable.
(2) The failure of Tenant to perform fully and promptly any act required
of it in the performance of this Lease or to comply otherwise with any
term or provision thereof other than those requiring the payment of
rent or other charges, which failure shall continue for thirty (30)
days after delivery by Landlord to Tenant of written notice thereof.
(3) The commencement in any court or tribunal of any proceeding, voluntary
or involuntary, to declare Tenant insolvent or unable to pay their
debts, which proceeding is not dismissed within thirty (30) days.
(4) The appointment by any court or under any law of a receiver, trustee
or other custodian of the property, assets or business of the Tenant,
which appointment is not vacated or set aside within thirty (30) days.
(5) The levy of execution, attachment or taking of property, assets or the
leasehold interest of Tenant by process of law or otherwise in
satisfaction of any judgment, debt or claim.
Upon the occurrence of an event of default as defined above, Landlord shall
have the right, at its option, to terminate this Lease; and if Landlord
shall exercise such right of election, the same shall be effective as of
the date of the event of default upon written notice of Landlord's election
given by Landlord to Tenant at any time after that date of such event of
default; or Landlord, if it shall so elect, may terminate Tenant's right to
possession or occupancy only, without terminating the Term of the Lease.
(b) Upon any termination of the Term hereof, whether by lapse of time or
otherwise, or upon any termination of Tenant's right to possession or
occupancy of the Premises without terminating the Term hereof, Tenant shall
surrender possession and vacate the Premises and deliver possession
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thereof to Landlord; and Tenant hereby grants to Landlord full and
free license to enter into and upon the Premises in such event and
without process of law to repossess the Premises and to expel or
remove Tenant and any others who may be occupying the Premises and to
remove therefrom any and all property using for such purpose such
force as may be necessary without being guilty of or liable for
trespass, eviction or forcible entry or detainer and without
relinquishing Landlord's right to rent or any other right given to
Landlord hereunder or by operation of law. Except as otherwise
expressly provided in this Lease, Tenant hereby expressly waives the
service and demand for the payment of rent or for possession of the
Premises or to reenter the Premises, including any and every form of
demand and notice prescribed by any statute or other law.
(c) If Landlord shall elect to terminate Tenant's right to possession only
as above provided, without terminating the Term hereof, Landlord at
its option may enter into the Premises, remove Tenant's property and
other evidences of tenancy and take and hold possession thereof
without such entry and possession terminating the Term hereof or
otherwise releasing Tenant in whole or in part from its obligation to
pay the rent herein reserved for the full Term. Upon and after entry
into possession without termination of the Term, Landlord may relet
the Premises or any part for the account of Tenant to any person, firm
or corporation other than Tenant for such rent, for such time, and
upon such terms as Landlord in its sole discretion shall determine. If
any rent collected by Landlord upon such reletting for Tenant's
account is not sufficient to pay monthly the full amount of the rent
herein reserved, and all other charges of every type which are in this
Lease and not theretofore paid by Tenant, together with the costs
incurred by Landlord in connection with the reletting of the Premises
including advertising and broker's commission as well as all costs of
repairs, alterations, redecoration or remodelling, Tenant shall pay to
Landlord the amount of each monthly deficiency upon demand; and if the
rent so collected from such reletting is more than sufficient to pay
the full amount of the rent reserved hereunder, together with the
aforementioned costs, any balance then remaining such belong to
Landlord. Any suit or proceeding brought to collect any deficiency or
rent shall not prejudice or preclude in any way the right of the
Landlord to collect any deficiencies thereafter arising by similar
suit or proceeding. For purposes of this sub-section, the rent due
from Tenant shall be computed on the basis of the average monthly rent
due from Tenant during the twelve (12) full months prior to default.
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(d) In the event that the Tenant should default hereunder, Landlord shall
be entitled to recover reasonable attorneys' fees and all other costs
incurred by Landlord in enforcing its rights hereunder.
ARTICLE XIV
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INDEMNITY
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Section 14.01. Tenant's Indemnity. Tenant shall indemnify and hold
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harmless Landlord from and against any and all claims arising from (a) Tenant's
use of the Premises or the conduct of its business; (b) any act or omission
done, permitted or suffered by Tenant in or about the Premises; or (c) any
breach or default in the performance of any obligation of Tenant under the terms
of this Lease, which indemnity shall include reasonable court costs and
attorneys' fees.
ARTICLE XV
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CONDEMNATION
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Section 15.01. Effect of Condemnation. If the whole of the Premises shall
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be acquired or condemned by eminent domain for any public use or purpose, or if
part of the Premises is so taken and the part remaining is insufficient for the
reasonable use of the Tenant, either Landlord or Tenant may elect to terminate
this Lease. If this Lease shall thus be terminated, rent shall be payable up to
the date that physical possession is taken by the condemning authority. All
sums awarded or agreed upon between the Landlord and the condemning authority
for such taking shall be the property of the Landlord, and the Tenant shall not
be entitled to any part of the condemnation award or purchase price, except for
any portion separately awarded to Tenant for Tenant's personal property.
ARTICLE XVI
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ENVIRONMENTAL
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Section 16.01. Hazardous Substances. Tenant shall not, without Landlord's
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prior written consent, after full disclosure, use, store, manufacture, transport
or dispose of any Hazardous Material (as hereinafter defined) on or about the
Premises. Tenant shall not install or permit the installation or maintenance of
an underground fuel storage tank on the Premises. Tenant shall not violate any
applicable Environmental Laws (as hereinafter defined) relating to or affecting
the Premises. Tenant shall comply with and ensure compliance by Tenant's
agents, contractors, employees, servants, lessees or concessionaires, with all
applicable Environmental Laws relating to or affecting the Premises and shall
keep the Premises free and clear of any liens imposed pursuant to any applicable
Environmental Laws. Tenant has obtained and will at all times continue to
obtain and/or maintain all licenses, permits and/or other
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governmental or regulatory actions necessary to comply with Environmental Laws
(the "Permits") and Tenant is in full compliance with the terms and provisions
of the Permits and will continue to comply with the terms and provisions of the
Permits. Tenant shall immediately give Landlord oral and written notice of any
spill of Hazardous Materials or in the event that Tenant receives any notice
from any governmental agency, entity, or any other party with regard to
Hazardous Materials on, from or affecting the Premises and shall conduct and
complete all investigations, sampling, and testing, and all remedial, removal,
and other actions necessary to clean up and remove all Hazardous Materials on,
from or affecting the Premises in accordance with all applicable Environmental
Laws.
Section 16.02. Tenant's Environmental Indemnity. Tenant hereby agrees to
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indemnify Landlord and hold Landlord harmless from and against any and all
losses, liabilities, damages, injuries (including, without limitation,
attorneys' fees and expenses) and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against Landlord for, with respect to, or
as a direct result of (a) the presence on, or under, or the escape, spillage,
emission or release from the Premises of any Hazardous Material caused by or
within the control of Tenant; (b) the violation of any Environmental Laws
relating to or affecting the Premises, caused by or within the control of
Tenant; (c) or the failure by Tenant to comply fully with the terms and
provisions of this paragraph. For purposes of this Lease, "Hazardous Material"
means and includes any petroleum products, any flammable explosives, radioactive
materials, asbestos or any material containing asbestos, and/or any hazardous,
toxic or dangerous waste, substance or material defined as such in (or for the
purposes of) the Environmental Laws. For the purposes of this Lease,
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, the
Resource Conservation and Recovery Act, any "Super Fund" or "Super Lien" law, or
any other federal, state or local law, regulation, decree, regulating, relating
to or imposing liability or standards of conduct concerning any petroleum
products, any flammable explosives, radioactive materials, asbestos or any
material containing asbestos, and/or hazardous, toxic or dangerous waste,
substance or material, as may now or at any time hereafter be in effect. The
obligations and liabilities of Tenant under this Section shall survive this
Lease.
ARTICLE XVII
MISCELLANEOUS
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Section 17.01. Governing Law. This Lease shall be governed by and construed
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in accordance with the laws of the State of North Carolina.
Section 17.02. Partial Invalidity. In the event that any term, covenant,
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condition or provision of this Lease shall at any time or
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to any extent be invalid or unenforceable, the remainder of this Lease shall not
be affected thereby, and each term, covenant, condition and provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
Section 17.03. Waiver. No waiver of any breach of a provision of this
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Lease shall be construed to be a waiver of any succeeding breach of the same or
any other provision.
Section 17.04. Entire Agreement. This Lease represents the entire agreement
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of the parties. This Lease supersedes and cancels any prior oral or written
lease, negotiation, arrangement, agreement and understanding between the parties
pertaining to the Premises.
Section 17.05. Binding Effect. This Lease shall inure to the benefit of,
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and be binding upon, the parties hereto, and their heirs, executors,
administrators, successors and assigns. No rights, however, shall inure to the
benefit of any assignee of Tenant unless the assignment to such assignee has
been approved in writing by the Landlord as is provided elsewhere in this
Lease.
Section 17.06. Headings. The headings or captions of Articles and Sections
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are for identification purposes only and do not limit or construe the contents
of the Articles and Sections.
IN WITNESS WHEREOF, the parties hereto have executed this Lease and affixed
their seals, the day and year first above written.
LANDLORD:
Rhino Real Estate LLC,
a North Carolina limited
liability company
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Manager
TENANT:
Blue Rhino Corporation,
a Delaware corporation
ATTEST: BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ President
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Secretary
[CORPORATE SEAL]
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NORTH CAROLINA )
)
FORSYTH COUNTY )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ a Notary Public of the County and State aforesaid,
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certify that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ personally came before me this day and acknowledged
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that he is the Secretary of Blue Rhino Corporation, a Delaware corporation, and
that by authority duly given and as the act of the corporation, the foregoing
instrument was signed in its name by its President, sealed with its corporate
seal and attested by its Secretary.
Witness my hand and official seal, this the 11/th/ day of November, 1998
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[SEAL APPEARS HERE] /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
********************************************************************************
NORTH CAROLINA )
)
FORSYTH COUNTY )
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a Notary Public for said County and State, do hereby
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certify ▇▇▇▇▇ ▇. ▇▇▇▇, Manager of Rhino Real Estate LLC, a North Carolina
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limited liability company, personally appeared before me this day and
acknowledged the due execution of the foregoing instrument on behalf of the
Company.
Witness my hand and office stamp this the 11/th/ day of November 1998.
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[SEAL APPEARS HERE] /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary Public
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