EXHIBIT 10.7(b)
NORTH CAROLINA )
)
) SUB-LEASE
)
FORSYTH COUNTY )
_________________________________________________________________
THIS SUBLEASE is made and entered into as of this ________ day of _______
1997 by BLUE RHINO CORPORATION ("Sublessor") a Delaware corporation and
______________________("Sublessee") a ______________ corporation.
W I T N E S S E T H:
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WHEREAS, Sublessor, as lessee, and Xxxxxxxx/XxXxxxxx Associates, Inc.,
("Lessor"), have entered into Master Equipment Lease Agreement No. F27125 dated
September 24, 1996, incorporated herein by reference, (the "Master Lease"),
whereby Sublessor leases certain cylinder display racks from Lessor;
WHEREAS, Sublessor and Sublessee have agreed that Sublessor shall sublet to
Sublessee certain cylinder display racks leased to Sublessor pursuant to the
Master Lease and described in Exhibit A attached hereto (the "Equipment");
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, the Sublessor and Sublessee covenant and agree as
follows:
1. Personal Property Subleased. The Sublessor subleases to the Sublessee the
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equipment listed on Exhibit A attached hereto as amended from time to time.
2. Commencement and Term. The Sublessee shall have and hold the subleased
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equipment for the monthly term and commencing as set forth on Exhibit A
attached hereto as amended from time to time unless earlier terminated as
provided herein. Sublessor does not grant to Sublessee any rights of
renewal, extension or purchase hereunder.
3. "Master Lease. This Sublease is subject and subordinate to the Master
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Lease, and Sublessee expressly acknowledges Lessor's rights as lessor under
the Master Lease. Except as shall be inconsistent with the terms hereof, or
where the context can be applied only to the parties to the Master Lease,
all the terms, covenants and conditions contained in the Master Lease shall
be applicable to this Sublease with the same force and effect as if
Sublessor were the lessor under the Master Lease and Sublessee were the
lessee."
Default and Remedies. If Sublessee ceases doing business as a going
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concern, or if any credit or financial information submitted to Sublessor
by Sublessee is materially untrue, or if a petition in bankruptcy,
arrangement, insolvency, or reorganization is filed by or against Sublessee
or any guarantor of Sublessee's obligations hereunder, or if Sublessee
defaults in payment or other performance required under this Sublease or
under any other sublease or agreement between Sublessor and Sublessee,
Sublessor may exercise any one or more of the following remedies:
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a. To declare the entire balance of rent hereunder immediately due and
payable and to similarly accelerate the balances under any other
subleases between Sublessor and Sublessee without notice or demand.
b. To xxx for and recover all rents, and other properties due, with
respect to any and all items of equipment to the extent permitted by
law.
c. To require Sublessee to assemble all of the equipment at Sublessee's
expense at a place reasonably designated by Sublessor.
d. To take possession of any or all items of equipment, without demand or
notice, wherever the same shall be located, separating all such
equipment from any other property with or without court order or other
process of law.
e. To exercise any and all other remedies granted under the Uniform
Commercial Code.
All of Sublessor's remedies hereunder are cumulative, are in addition to
any other remedies provided for by law, and may, to the extent permitted by
law, be exercised concurrently or separately. The exercise of any one
remedy shall not be deemed to be an election of such remedy or to preclude
the exercise of any other remedy. No failure on the part of the Sublessor
to exercise and no delay in exercising any right or remedy shall operate as
a waiver thereof or modify the terms of this Lease.
4. Assignment of Sublease. As Security and collateral for the Master Lease,
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Sublessor does assign and transfer to Lessor the Sublessor's interest in
this Sublease and all rentals and income arising therefrom. Upon payment
of the Master Lease, Lessor shall reassign and transfer to the Sublessor
all interest in this Sublease and rentals and income arising therefrom.
Lessor shall not, by reason of this assignment of the Sublease nor by
reason of the collection of the rents from the Sublessee, be deemed liable
to Sublessee for any failure of the Sublessor to perform and comply with
Sublessor's remaining obligations.
Upon default by the Sublessor under the Master Lease, Sublessor hereby
irrevocably authorizes and directs Sublessee, upon receipt of any written
notice from Lessor stating that a default exists in the performance of
Sublessor's obligations under the Master Lease, to pay to Lessor the rents
due and to become due under the Sublease. Sublessor agrees the Sublessee
shall have the right to rely upon any such statement and request from
Lessor, and that Sublessee shall pay such rents to Lessor without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Sublessor to the contrary and
Sublessor shall have no right or claim against Sublessee for any such rents
so paid by Sublessee.
Title of the Property. The leased equipment is, and shall at all times
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remain, the Lessor's property, and the Sublessee shall have no right, title
or interest therein, except as may otherwise be herein set forth, and no
right to purchase or otherwise acquire title to or ownership of any of the
leased equipment. Sublessor is hereby authorized by Sublessee, at
Sublessee's expense, to cause this Sublease, or any statement or other
instrument in respect to this Subease showing the interest of Sublessor in
the subleased equipment, including Uniform Commercial Code Financing
Statements, to be filed or recorded and re-filed and re-recorded, and
grants Sublessor the right to execute Sublessee's name thereto. Sublessee
shall execute and deliver any statement or instrument requested by
Sublessor for such purpose, and agrees to pay or reimburse Sublessor for
any searches, filings, recordings or fees or taxes arising from the filing
or recording of any such instrument or statement. Sublessee shall, at its
expense, protect and defend Sublessor's title against all
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persons claiming through or against Sublessee, at all times keeping the
leased equipment free from any legal process or encumbrance whatsoever,
including, but not limited to, liens, attachments, judgments, levies, and
executions, and shall give Sublessor immediate written notice thereof and
shall indemnify Sublessor from any cost caused thereby. The leased
equipment is, and shall at all times be and remain, personal equipment,
notwithstanding that the leased equipment or any part thereof may now be,
or hereafter become, in any manner affixed or attached to the real estate
or any improvements located thereon.
5. Amount of Rent. Sublessee agrees to pay to Sublessor the monthly sums set
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forth on Exhibit A attached hereto as amended from time to time as rent for
the sublease of the equipment for the full term of this Sublease. The rent
shall be paid on the first (1st) day of each consecutive month for the full
term of this Agreement.
6. Maintenance and Insurance. During the term of this Agreement, the
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Sublessee shall maintain, service and keep in good repair each item of
subleased equipment at its own expense, except for normal wear, tear and
depreciation. The Sublessee shall not alter the subleased equipment without
Sublessor's prior written consent. The Sublessor shall have the right to
inspect the subleased equipment at any reasonable time. The Sublessee shall
comply with all laws and regulations applicable to the equipment. All risk
of loss or damage to each item of subleased equipment shall be borne by the
Sublessee. The Sublessee shall further, at its own expense, keep each item
of equipment insured against all risk of loss or damage and shall likewise
insure the equipment thereon under the liability insurance policy. All such
insurance shall name Sublessor as a Loss Payee, as Sublessor's interest may
appear or additional insured, as the case may be. Sublessee shall pay the
premiums therefor and deliver said policies, or duplicates thereof, or
certificates of coverage thereunder, to Sublessor with the Loss Payable
endorsement upon the policy or policies or by independent instrument that
gives Sublessor a right to thirty (30) days written notice before the
policy can be altered or canceled. If Sublessee shall fail to provide such
insurance coverage, Sublessor may (but is not required) obtain such desired
coverage and charge the premium therefor as additional rent to Sublessee.
7. Risk of Loss. The Sublessee shall bear all risks of loss and of damage to
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the subleased equipment from any cause. In the event of loss or damage,
Sublessee, at Sublessor's option, shall: (a) repair the damaged equipment
to good condition and working order; or (b) replace lost or damaged
equipment with like equipment in good repair, condition and working order
with documentation creating a clear title thereto in Sublessor with said
equipment becoming subject to the terms of this Sublease Agreement; or (c)
pay to Sublessor the then unpaid balance of the aggregate rent reserved
under this Sublease plus the value of Sublessor's residual interest in the
subleased equipment, if any. Upon Sublessor's receipt of such payment,
Sublessee and/or Sublessee's insurer shall be entitled to Sublessor's
interest in said equipment for salvage purposes, in its then condition and
location, as is, without warranties, express or implied.
8. Net Lease, Taxes. The Parties intend the rental payments hereunder to be
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net to Sublessor. Sublessee shall pay all sales, use, excise, personal
property, stamp, documentary and ad valorem taxes, license and registration
fees, assessments, fines, penalties and similar charges imposed on the
ownership, possession or use of the subleased equipment during the term of
this Sublease, and shall pay all taxes (except income taxes) imposed on
Sublessor or Sublessee with respect to the rental payments hereunder.
Sublessee shall reimburse Sublessor upon demand for any and all taxes paid
by or advanced by Sublessor. Sublessee shall file all returns required
therefor and furnish copies to Sublessor. Any amounts unpaid by Sublessee
shall be added by Sublessor to
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total rent due to Sublessor.
9. Indemnity. The Sublessee shall forever and further protect, save, and keep
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Sublessor harmless and indemnify Sublessor against and from any and all
claims, demands, losses, costs, damages, suits, judgments, penalties,
expenses, and liabilities, of any kind or nature whatsoever, arising
directly or indirectly out of or in connection with the leasing of the
equipment.
10. Assignment and Subletting. The Sublessee shall not assign all or any
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portion of this Sublease and shall not sublet all or any portion of the
subleased equipment without having first obtained the written consent of
the Lessor and the Sublessor.
11. No Warranties by Sublessor. SUBLESSOR MAKES NO WARRANTY, EXPRESS OR
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IMPLIED, TO ANYONE, AS TO THE FITNESS, MERCHANTABILITY, DESIGN, CONDITION,
CAPACITY, PERFORMANCE OR ANY OTHER ASPECT OF THE EQUIPMENT OR ITS MATERIAL
OR WORKMANSHIP. Sublessor further disclaims any further liability for loss,
damage or injury to sublessee or third parties as a result of any defects,
latent or otherwise, in the subleased equipment, whether arising from
Sublessor's negligence or application of the laws or strict liability.
Regardless of cause, Sublessor shall not be liable for loss of profits or
any other direct, special, or consequential damages. As to the Sublessor,
the Sublessee subleases the equipment "AS IS." Sublessor shall have no
obligation to maintain, test, adjust, or service the subleased equipment.
12. Compliance with Laws. The Sublessee shall conduct its business and
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maintain the subleased equipment in strict compliance with all applicable
laws, ordinances, regulations and other requirements of any federal, state,
county, municipal or other government and will obtain all necessary
permits, licenses, or other consents for the operation of its business.
13. Titles of Paragraphs. The various titles of the paragraphs herein are
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used solely for convenience and shall not be used for interpreting or
construing this Agreement.
14. Benefit. The covenants, terms, conditions, provisions and undertakings of
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this Agreement or any renewals, extensions or modifications thereof shall
extend to an be binding upon the heirs, executors, administrators,
successors, and assigns of the respective parties hereto.
15. Severability and Governing Law. This Agreement shall be interpreted under
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the laws of the State of North Carolina. Any provision hereof found to be
prohibited by law shall be ineffective to the extent of such prohibition
without invalidating the rest of this Agreement.
16. Jury Waiver. The Sublessor and Sublessee waive trial by jury in any action
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concerning this Lease.
17. Entire Agreement. This Agreement represents the entire understanding and
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contract between the parties hereto and there are no collateral or oral
agreements or understandings. This Agreement shall not be modified in any
manner except by instrument in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal the day and year first above written.
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SUBLESSOR:
BLUE RHINO CORPORATION
By:__________________________________
Officer
SUBLESSEE:
_____________________________
[Print Name]
By:__________________________________
Officer, Partner or Manager
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BLUE RHINO CORPORATION
SUBLEASE OF PERSONAL PROPERTY
EXHIBIT A
A. Name and Address of sublessee:
_______________________________________
_______________________________________
_______________________________________
B. List of Equipment
SEE EXHIBIT "B" ATTACHED
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C. Term: Term continues until either party terminates upon sixty (60) days
written notice to the other party and until return of all equipment to
Sublessor.
D. Rent:
1. Original rent of $ per month beginning
2. Plus additional $ per month beginning
3. Plus additional $ per month beginning
4. Plus additional $ per month beginning
5. Plus additional $ per month beginning
6. Plus additional $ per month beginning
B RHINO
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E. Original Date: Parties Initials:
Amended Date: Parties Initials:
Amended Date: Parties Initials:
Amended Date: Parties Initials:
Amended Date: Parties Initials:
Amended Date: Parties Initials:
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