NCG050407_Name-Owner Change Supporting Info_1/14/2020

EXHIBIT A
EXISTING CERTIFICATE OF COVERAGE
(NCG050407)
www.wiIbertpIasticservices.cam
BELMONT, NC• EASLEY, SC
HARRISBURG, NC • WHITE BEAR LAKE, MN

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1-4
Certificate of Coverage
STATE OF NORTH CAROLINA
DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF ENERGY, MINERAL, AND LAND RESOURCES
GENERAL PERMIT NO. NCGO50000
CertlflcaW of Coverage No. NCG050407
STORMWATER DISCHARGES
NATIONAL POLLUTANT DISCHARGE ELM NATION SYSTEM
In compliance with the provision of North Caroana General Statute 143-215.1. other lawful standards and
regulations promulgated and adopted by the North Carolina ErMronmentai Management Commission, and the
Federal Water Pollution Control Act, as amended,
WM*d Plastic Services
.s herebyauthoriaed to discharge stormwaterfrom a alto located at
Wiltbert Plastic services
1000 Oaks Pkwy
Belmont
Galion County
to receiving waters designated as South Fork Catawba River, class WS V waters in the Catawba River Basin,
In accordance with the eftluart Imitations, monitoring requIremerds, and other conditions set forth in N.C.
General Permit No. NCG050000, issued on 50112018.
This Certificate of Coverage shad become effective on 6/1/201 B.
This Certificate of Coverage shall remain In effect for the duration of the General Permit.
&W16(rB Jim
ltorWllaam E. (Toby) Vinson. Jr., P.E., CPM
Interim Director, Division of Energy, Mineral, and Land Resources
By the Authority of the Environmental Management Comndsslon

STATE OF NORTH CAROLINA
I DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION OF ENERGY, MINERAL, AND LAND RESOURCES
TO DISCHARGE STORMWATER UNDER THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
for establishments primarily engaged In the following activities:
Apparel, Printing, Leather, Rubber, & Miscellaneous Manufacturing
In compliance with the provisions of North Carolina General Statute 143-215.1, other lawful standards and
regulations promulgated and adopted by the North Carona Environmental Management Commission and
the Federal Water Pollution Control Ac% as amended, this permit is hereby issued to all owners or operators,
hereinafter permittees, which are covered by this permit as evidenced by receipt of a Cerdficate of Coverage
by the Environmental Management Commission to allow the discharge of stormwater to the surface
waters of North Carolina or to a separate storm sewer system conveying discharges to surface waters In
accordance with the terms and conditions set forth herein.
Coverage under this General Permit Is applicable to:
• All owners or operators of stormwater point source discharges associated with establishments
primarily engaged In activities classified as Apparel and Other Finished Products Made from Fabrics
and Similar Materials [Standard Industrial Classification (SIC) 23], Printing Publishing and Awed
© Industries [SIC 27], Converted Paper and Paperboard Products [SIC 267], Paperboard Containers
and Boxes [SIC 265], Miscellaneous Manufacturing industries [SIC 39], Leather amd Leather
Products [SIC 31], and Rubber and MisceDaneous Products [SIC 30],
♦ Stormwater point source discharges from like Industrial activities deemed by The Division of Energy,
Mineral, and Land Resources (DEMLR) to be similar to these operations In the process, or the
discharges, or the exposure of raw materials, intermediate products, by-products, products, or waste
products.
The General Permit shall become effective on June 1, 2018.
The General Permit shall expire at midnight on May 31, 2023.
Signed this day May 31, 2018,
Original signed by W1111am E (Toby) Vinson
William E. (Toby) Vinson, Jr., P.E., CPM
Interim Director, Division of Energy, Mineral and Land Resources
By the Authority of the Environmental Management Commission
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EXHIBIT B
LEASE AGREEMENT BETWEEN BNC REAL ESTATE
HOLDINGS, LLC (AS LANDLORD) AND THERMOFORM
PLASTICS, INC. (AS TENANT)
DATED DECEMBER 16, 2019
www. wiIbertpIasticservices. com
BELMONT, NC• EASLEY, SC
HARRISBURG, NC • WHITE BEAR LAKE, MN

1000 Oaks Parkway, Belmont, North Carolina
LEASE AGREEMENT
I:):01VIk 001
BNC REAL ESTATE HOLDINGS, LLC,
a North Carolina limited liability company
as Landlord
AND
THERMOFORM PLASTICS, INC.,
a Minnesota corporation
as Tenant
12261 [034_ 5

LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") dated as of DecemberU, 2019 (the
"Commencement Date") is made and entered into between BNC REAL ESTATE HOLDINGS,
LLC, a North Carolina limited liability company ("Landlord'), and THERMOFORM
PLASTICS, INC., a Minnesota corporation ("Tenant'.
ARTICLE I
Section 1.01 Lease of Premises; Title and Condition. Upon and subject to the terms
and conditions herein specified, Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord., the premises (the "Premises") consisting of the following:
(a) that parcel of land more particularly described in Exhibit A attached hereto
and made a part hereof for all purposes having the following address: 1000 Oaks Parkway,
Belmont, North Carolina, together with all of Landlord's right, title and interest, if any, in and to
all easements, rights -of -way, appurtenances and other rights and benefits associated with such
parcel(s) of land and to all public streets abutting such parcel of land (collectively, the "Land');
and
(b) all of the buildings, structures, fixtures, facilities, installations and other
improvements of every kind and description now or hereafter in, on, over and under the Land and
all plumbing, gas, electrical, ventilating, lighting and other utility systems, ducts, hot water heaters,
oil burners, domestic water systems, elevators, escalators, canopies, air conditioning systems and
all other building systems and fixtures attached to or comprising a part of the buildings, including
all other building systems and fixtures necessary to the ownership, use, operation, repair and
maintenance of the buildings, structures, fixtures, facilities, installations and other improvements
of every kind, but excluding all Severable Property (as defined in Section 3.01 hereof)
(collectively, the "Improvements").
The Premises are leased to Tenant in their present condition without representation or
warranty by Landlord and subject to all applicable Legal Requirements (as defined in Section
5.02(b)) now or hereafter in effect and to liens and encumbrances listed in Exhibit B attached
hereto and made a part hereof (collectively, "Permitted Exceptions ') for all purposes. Tenant has
examined the Premises and title to the Premises and has found all of the same satisfactory for all
purposes. LANDLORD LEASES AND WILL LEASE AND TENANT TAKES AND WILL
TAKE THE PREMISES "AS IS", "WHERE -IS" AND "WITH ALL FAULTS." TENANT
ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD
HEREUNDER OR IN ANY OTHER CAPACITY) HAS NOT MADE NOR SHALL
LANDLORD BE DEEMED TO HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, WITH RESPECT TO ANY OF THE PREMISES, INCLUDING ANY
WARRANTY OR REPRESENTATION AS TO (i) ITS FITNESS, DESIGN OR CONDITION
FOR ANY PARTICULAR USE OR PURPOSE, (ii) THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, (iii) THE EXISTENCE OF ANY DEFECT, LATENT OR
PATENT, (iv) LANDLORD'S TITLE THERETO, (v) VALUE, (vi) COMPLIANCE WITH
SPECIFICATIONS, (vii), LOCATION, (viii) USE, (ix) CONDITION, (x)
MERCHANTABILITY, (xi) QUALITY, (xii) DESCRIPTION, (xiii) DURABILITY, (xiv)
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OPERATION, (xv) THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, HAZARDOUS
CONDITION OR HAZARDOUS ACTIVITY OR (xvi) COMPLIANCE OF THE PREMISES
WITH ANY LAW; AND ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY
TENANT. TENANT ACKNOWLEDGES THAT THE PREMISES ARE OF TENANT'S
SELECTION AND TO ITS SPECIFICATIONS AND THAT THE PREMISES HAVE BEEN
INSPECTED BY TENANT AND ARE SATISFACTORY TO TENANT. IN THE EVENT OF
ANY DEFECT OR DEFICIENCY IN ANY OF THE PREMISES OF ANY NATURE,
WHETHER LATENT OR PATENT, LANDLORD SHALL NOT HAVE ANY
RESPONSIBILITY OR LIABILITY WITH RESPECT THERETO OR FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY IN
TORT). The provisions of this paragraph have been negotiated and are intended to be a complete
exclusion and negation of any warranty by Landlord, express or implied, with respect to any of the
Premises, arising pursuant to the Uniform Commercial Code or any other law now or hereafter in
effect or arising otherwise.
Section 1.02 Use. Except as expressly set forth in the following sentence, Tenant may
use the Premises for manufacturing, assembly, warehouse and general office uses and for any other
legal use. Tenant shall not use or occupy or permit any of the Premises to be used or occupied, nor
do or permit anything to be done in or on any of the Premises, in a manner which would (i) make
void or voidable or cause any insurer to cancel any insurance required by this Lease, or make it
difficult or impossible to obtain any such insurance at commercially reasonable rates, (ii) make
void or voidable, cancel or cause to be canceled or release any warranty, guaranty or indemnity
running to the benefit of the Premises or Landlord, (iii) cause structural injury to any of the
Improvements, (iv) constitute a public or private nuisance or waste, or (v) violate any Legal
Requirements. Notwithstanding any provision hereof to the contrary, in no event shall Tenant or
any Transferee, whether consented to by Landlord or otherwise, be permitted to change the use of
the Premises without Landlord's prior written consent, which may be withheld or granted in its
sole and absolute discretion.
Section 1.03
(a) Terra. This Lease shall begin on the Commencement Date and shall end on
the Iast day of the 120th full calendar month following the Commencement Date. The time period
during which this Lease shall actually be in effect, as the same may be terminated prior to its
scheduled expiration pursuant to the provisions hereof, is referred to herein as the "Term."
(b) Right of Renewal. Tenant shall have the right to renew the Tenn for all of
the Premises for two (2) renewal terms of five (5) years (each, a "Renewal Term"), each of which
shall commence on the day following the expiration of the Tenn, as previously extended and end
on the fifth (5th) anniversary of the last day of the Term, unless such Renewal Term shall sooner
terminate pursuant to any of the terms of this Lease or otherwise. Each Renewal Term shall
commence only if (I) Tenant shall have notified Landlord in writing of Tenant's exercise of such
renewal right not later than nine (9) months prior to the then last day of the Term and (2) at the
time of the exercise of such right and immediately prior to the then last day of the Term, no Event
of Default shall have occurred and be continuing hereunder. Time is of the essence with respect to
the giving of the notice of Tenant's exercise of each renewal option, and Tenant's failure to timely
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give notice of Tenant's exercise of a renewal option shall render null and void the subject renewal
option and any subsequent renewal options hereunder. Each Renewal Term shall be upon all of
the agreements, terms, covenants and conditions hereof binding upon Tenant, except that Base
Rent payable during each Renewal Term shall be as set forth in Exhibit C. Upon the
commencement of each Renewal Term, (A) such Renewal Term shall be added to and become
part of the Term and (B) any reference to "this Lease," to the "Term," the "term of this Lease" or
any similar expression shall be deemed to include such Renewal Term.
Section 1.04 Rent. In consideration of this Lease, during the Term, Tenant shall pay to
Landlord the amounts set forth in Exhibit C as annual basic rent for the Premises {`Basic Rent').
Tenant shall pay Basic Rent and all other sums payable to Landlord hereunder to Landlord by
ACH electronic payment to the account as follows:
Bank: UMB
ABA Routing #: 101000695
Account Number: 9840878785
Account Name: Joseph U. Suhor III
or at such other address or to such other Person as Landlord from time to time may designate.
Landlord shall give Tenant not less than fifteen (15) days prior written notice of any change in the
address to which such payments are to be made. If the party entitled to receive Basic Rent or such
parry's address shall change, Tenant may, until receipt of notice of such change from the party
entitled to receive Basic Rent or other sums payable hereunder immediately preceding such
change, continue to pay Basic Rent and other sums payable hereunder to the party to which, and
in the manner in which, the preceding installment of Basic Rent or other sums payable hereunder,
as the case may be, was paid. Such Basic Rent shall be paid in equal monthly installments in
advance on the first day of each month, except for any Basic Rent due for the rental of the Premises
during the period from the Commencement Date through the end of the calendar month in which
the Commencement Date occurs, which shall be payable in advance on or before the
Commencement Date. Any rental payment made in respect of a period which is less than one
month shall be prorated by multiplying the then applicable monthly Basic Rent by a fraction the
numerator of which is the number of days in such month with respect to which rent is being paid
and the denominator of which is the total number of days in such month. Tenant shall perform all
its obligations under this Lease at its sole cost and expense, and shall pay all Basic Rent, and other
sums payable hereunder when due and payable, without notice, demand, abatement, deduction or
set off.
ARTICLE Il
Section 2.01 Maintenance and Repair.
(a) Tenant, at its own expense, will maintain all parts of the Premises in good
repair, appearance and condition in accordance with all Legal Requirements and will take all
commercially reasonable action and will make all commercially reasonable structural and
nonstructural changes and repairs which may be required to keep all parts of the Premises in good
repair and condition similar to comparable warehouse and manufacturing buildings in the general
vicinity of the Premises (including all painting; glass, utilities, conduits, fixtures and equipment,
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122611039_5

Ofoundation, roof, exterior walls, heating and air conditioning systems, wiring, plumbing, sprinkler
systems and other utilities, and all paving, sidewalks, roads, parking areas, curbs and gutters and
fences). Landlord, its contractors, subcontractors, servants, employees and agents, shall have the
right to enter upon the Premises with three (3) business days' prior notice (except in the event of
an emergency, in which case no notice shall be required) to inspect same to ensure that all parts of
the Premises are maintained in good repair and condition, and Tenant shall not be entitled to any
abatement or reduction in rent by reason thereof. Landlord shall not be required to maintain, repair
or rebuild all or any part of the Premises. Tenant waives the right to require Landlord to maintain,
repair or rebuild all or any part of the Premises or make repairs at the expense of Landlord pursuant
to any Legal Requirements, agreement, contract, covenant, condition or restrictions at any time.
Section 2.02 Alterations, Replacements and Additions. Tenant may, at its expense,
make additions to and alterations of the Improvements, and construct additional Improvements,
provided that (i) the fair market value, the utility, the square footage or the useful life of the
Premises shall not be materially lessened thereby, (ii) such work shall be expeditiously completed
in a good and workmanlike manner and in compliance with all applicable Legal Requirements and
the requirements of all insurance policies required to be maintained by Tenant hereunder, (iii) no
material structural alterations shall be made to the Improvements or additional structure
improvements constructed or structural demolitions conducted in connection therewith unless
Tenant shall have obtained Landlord's consent (including Landlord's approval of the plans and
specifications therefor to the extent necessary given the scope of the work) and furnished Landlord.
withsuch evidence of bonding or other security acceptable to Landlord as shall be reasonably
acceptable to Landlord (but in no event greater than the cost of such alterations or demolitions),
(iv) no additions, replacements or alterations (other than cosmetic, interior or nonstructural
alterations) which cost $100,000 or more per single addition, replacement or alteration, or
$250,000 or more in the aggregate of all such additions, replacements or alterations shall be made
unless prior written consent from Landlord shall have been obtained (including Landlord's
approval of the plans and specifications therefor), and (v) no Event of Default exists. Cosmetic,
interior or nonstructural alterations (including demolition or construction of iciterior dernising
walls that are non-structural and non -load bearing) that cost less than $100,000 per single addition,
replacement or alteration, or $250,000 in the aggregate of any other such additions, replacements
or alterations, shall not require prior written consent from Landlord. All additions and alterations
of the Premises, without consideration by Landlord, shall be and remain part of the Premises (not
subject to removal upon termination) and the property of Landlord and shall be subject to this
Lease.
ARTICLE III
Section 3.01 Severable Property. Tenant currently has severable property on the
Premises and may, at its expense, install, assemble or, place on the Premises and remove and
substitute any severable property used or useful in Tenant's business, all as more particularly
described in Exhibit D attached hereto and made a part hereof for all purposes (collectively, the
"Severable Pro»e'). Provided no Event of Default then exists, upon the written request of
Tenant and at Tenant's sole cost and expense, Landlord will subordinate any of its claims or
interests in the Severable Property to the lienholders or landlords of such Severable Property on
terms and conditions reasonably acceptable to Landlord.
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Section 3.02 Removal. So long as no Event of Default exists, Tenant may remove the
Severable Property at any time during the Term. Any of Tenant's Severable Property not removed
by Tenant within thirty (30) days following the expiration of this Lease or thirty (30) days after an
earlier termination shall be considered abandoned by Tenant and may be appropriated, sold,
destroyed or otherwise disposed of by Landlord without obligation to account therefor. Tenant will
repair at its expense all damage to the Premises necessarily caused by the removal of Tenant's
Severable Property, whether effected by Tenant or by Landlord.
ARTICLE IV
Section 4.01 Tenant's Assignment and Subletting. Tenant shall not, whether for its
own account or otherwise, assign this Lease or sublet or grant concessions or licenses or other
rights for the occupancy or the use of all or any part of the Premises (each, a "Transfer") for the
Term of this Lease without Landlord's prior written consent to such Transfer, which consent will
not be unreasonably withheld or delayed. Any transfer of all or substantially all of the assets of
Tenant or all or more than 49% of the stock or other direct or indirect ownership interests in Tenant
(whether in one or a series of transactions), any merger of Tenant into another entity or of another
entity into Tenant, or any transfer occurring by operation of law shall be deemed to constitute a
Transfer by Tenant of its interest hereunder for the purposes hereof. Each such Transfer shall
expressly be made subject to the provisions hereof. No such Transfer shall modify or limit any
right or power of Landlord hereunder or affect, reduce or relieve Tenant of any duty or obligation
of Tenant hereunder, and all such duties and obligations shall be those of Tenant and shall continue
in full effect as obligations of Tenant as a,principal and not of a guarantor or surety, as though no
subletting or assignment had been made, such liability of the Tenant named herein to continue
notwithstanding any Transfer and subsequent modifications or amendments of this Lease after
such Transfer. Neither this Lease nor the Term hereby demised shall be mortgaged or pledged by
Tenant, nor shall Tenant mortgage or pledge its interest in any sublease of the Premises or the
rentals payable thereunder without Landlord's prior written consent to such Transfer, which may
be withheld or granted at Landlord's sole and absolute discretion. Any Transfer by Tenant without
Landlord's prior written consent, except as otherwise expressly permitted by this Lease, shall be
null and void, ab initlo, shall constitute bad faith, and shall constitute an immediate Event of
Default hereunder. Tenant shall, within twenty (20) days after the execution of any assignment,
sublease or other Transfer document, deliver a conformed copy thereof to Landlord.
Section 4.02 Transfer by Landlord. Landlord shall be free to transfer its interest in the
Premises or any part thereof or interest therein, subject, however, to the terms of this Lease. Any
such transfer shall relieve the transferor of all liability and obligations hereunder (to the extent of
the interest transferred) accruing after the date of the transfer and any Transferee shall deemed to
have assumed all obligations of Landlord hereunder arising from and after the date of such transfer
and be bound by the terms and provisions of this Lease.
ARTICLE V
Section 5.01 Net Lease.
(a) It is expressly understood and agreed by and between the parties that this
Lease is an absolute net lease, and the Basic Rent and all other sums payable hereunder to or on
122611039_5

behalf of Landlord shall be paid without notice or demand and without setoff, counterclaim,
abatement, suspension, deduction or defense,
(b) Except as otherwise expressly provided in this Lease, this Lease shall not
terminate, nor shall Tenant have any right to terminate this Lease or be entitled to the abatement
of any rent or any reduction thereof, nor shall the obligations hereunder of Tenant be otherwise
affected, by reason of any damage to or destruction of all or any part of the Premises from whatever
cause, the taking of the Premises or any portion. thereof by condemnation or otherwise, the
prohibition, limitation or restriction of Tenant's use of the Premises, any default on the part of
Landlord, any latent or other defect in any afthe Premises, the breach of any warranty of any seller
or manufacturer of any of the Improvements or Severable Property, any violation of any provision
of this Lease by Landlord, the bankruptcy, insolvency, reorganization, composition, readjustment,
liquidation, dissolution or winding -up of, or other proceeding affecting Landlord, the exercise of
any remedy, including foreclosure, under any mortgage or collateral assignment, any action with
respect to this Lease (including the disaffirmance hereof) which may be taken by Landlord, any
trustee, receiver or liquidator of Landlord or any court under the Federal Bankruptcy Code or
otherwise, and market or economic changes, or interference with such use by any private Person,
or by reason of any eviction by paramount title resulting by a claim from Landlord's predecessor
in title, or for any other cause whether similar or dissimilar to the foregoing, any present or future
law to the contrary notwithstanding, it being the intention of the parties hereto that the rent and all
other charges payable hereunder to or on behalf of Landlord shall continue to be payable in all
events and the obligations of Tenant hereunder shall continue unaffected, unless the requirement
to pay or perform the same shall be terminated pursuant to an express provision of this Lease.
(c) The obligations of Tenant hereunder shall be separate and independent
covenants and agreements. Tenant covenants and agrees that it will remain obligated under this
Lease in accordance with its terms, and that Tenant will not take ariy action to terminate, rescind
or avoid this Lease, notwithstanding the bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding -up or other proceeding affecting Landlord or any
assignee of Landlord in any such proceeding and notwithstanding any action with respect to this
Lease which may be taken by any trustee or receiver of Landlord or of any assignee of Landlord
in any such proceeding or by any court in any such proceeding.
(d) Except as otherwise expressly provided in this Lease, Tenant waives all
rights now or hereafter conferred by law (i) to quit, terminate or surrender this Lease or the
Premises or any part thereof or (ii) to any abatement, suspension, deferment or reduction of the
rent, or any other sums payable hereunder to or on behalf of Landlord, regardless of whether such
rights shall arise from any present or future constitution, statute or rule of law.
Section 5.02 Taxes and Assessments; Comphance with Law.
(a) Tenant shall pay, as additional rent, prior to delinquency, the fallowing
(collectively, "Taxes") and shall provide proof of payment of the Taxes to Landlord within thirty
(30) days of such payment:
(i) all taxes, assessments, levies, fees, water and sewer rents and
charges and all other governmental charges (whether federal, state, county or municipal),
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general and special, ordinary and extraordinary, foreseen and unforeseen, which are, at any
time prior to or during the Term imposed or levied upon or assessed by a taxing or
management district or authorities presently existing or hereafter created against or which
arise with respect to (A) the Premises, (B) any Basic Rent, additional rent or other sums
payable hereunder, (C) this Lease or the leasehold estate hereby created or (D) the
operation, possession or use of the Premises;
(ii) all gross receipts or similar taxes (i.e., taxes based upon gross
income which fail to take into account deductions with respect to depreciation, interest,
taxes or ordinary and necessary business expenses, in each case relating to the Premises)
imposed or levied upon, assessed against or measured by any Basic Rent, additional rent
or other sums payable hereunder;
(iii) all franchise, sales, value added, ad valorem, use and similar taxes
at any time levied, assessed or payable on account of the leasing, operation, possession or
use of the Premises; and
(iv) all charges of utilities, communications and similar services serving
the Premises.
Notwithstanding the foregoing, "Taxes," as used herein, shall not include, and
Tenant shall not be required to pay, any estate, inheritance, transfer, income, capital gains or
similar tax of or on Landlord unless such tax is imposed, levied or assessed in substitution for any
other tax, assessment, charge or levy which Tenant is required to pay pursuant to this
Section 5.02(a); provided, however, that if, at any time during the Term, the method of taxation
shall be such that there shall be assessed, levied, charged or imposed on Landlord a capital levy or
other tax directly on the rents received therefrom (other than income tax), or upon the value of the
Premises or any present or future improvement or improvements on the Premises, then all such
levies and taxes or the part thereof so measured or based shall be included in the term "Taxes" and
payable by Tenant, and Tenant shall pay and discharge the same as herein provided. Tenant will
furnish to Landlord, promptly after request therefor, proof of payment of all items referred to above
which are payable by Tenant. If any such assessment may legally be paid in installments, Tenant
may pay such assessment in installments; in such event, Tenant shall be liable only for installments
which become due and payable with respect to any tax period occurring in whole or in part during
the Term hereof; provided, however, that all amounts referred to in this Section 5.02(a) for the
fiscal or tax year in which the Term shall expire shall be apportioned so that Tenant shall pay those
portions thereof which correspond with the portion of such year as are within the Term hereby
demised.
(b) Tenant shall comply with and cause the Premises to comply with and shall
assume all obligations and liabilities with respect to the following;
(i) all laws, ordinances and regulations and other governmental rules,
orders and determinations presently in effect or hereafter enacted, made or issued, whether
or not presently contemplated (collectively, "Legal Renuirements"), as applied to the
Premises or the ownership, operation, use or possession thereof, including maintaining an
adequate number of vehicular parking spaces, and
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(ii) all contracts, insurance policies (including to the extent necessary to
prevent cancellation thereof and to insure full payment of any' claims made under such
policies), agreements, covenants, conditions and restrictions now or hereafter applicable to
the Premises or the ownership, operation, use or possession thereof (other than covenants,
conditions and restrictions imposed by Landlord subsequent to the date of this Lease
without the consent of Tenant, not to be unreasonably withheld, conditioned or delayed),
including all such Legal Requirements, contracts, agreements, covenants, conditions and
restrictions which require structural, unforeseen or extraordinary changes; provided,
however, that, with respect to any of the obligations of Tenant in clause (ii) above which
are not now in existence, Tenant shall not be required to so comply unless Tenant is either
a party thereto or has given its written consent thereto, or unless the same is occasioned by
Legal Requirements or Tenant's default (including any failure or omission by Tenant)
under this Lease. Nothing in clause (ii) of the immediately preceding sentence or the
following sentence shall modify the obligations of Tenant under Section 5.04 of this Lease.
(c) In the event Tenant fails to comply with the provisions of Section 5.02, then,
in addition to any other remedies Landlord may elect, Tenant shall, in addition to and concurrently
with the payment of Basic Rent as required in Section 1.04 hereof, pay one -twelfth of the amount
(as estimated by Landlord) of the annual Taxes (each such payment, a "Tax Escrow Payment")
and, collectively, the "Tax Escrow Payments") next becoming due and payable with respect to
the Premises. Tenant shall also pay to Landlord on demand therefor the amount by which the
actual Taxes exceed the payment by Tenant required in this Subsection. Notwithstanding anything
to the contrary contained in this Lease, so long as Tenant shall have complied in its obligations
under this Section 5.02(c), Landlord shall be solely liable for the application of the Tax Escrow
Payments to the actual payment of Taxes as and when the same shall become due. Any excess Tax
Escrow Payments remaining at the expiration of the Term shall be refunded to Tenant; provided,
however, that in the event there shall remain at the expiration of the Term, unpaid Taxes for any
tax period occurring, in whole or in part, during the Term, only that portion of any remaining Tax
Escrow Payments in excess of such unpaid amounts, if any, shall be refunded to Tenant.
Section 5.03 Liens. Tenant will remove and discharge any charge, lien, security interest
or encumbrance upon the Premises, or upon any Basic Rent, additional rent or other sums payable
hereunder which arises for any reason, including all liens which arise out of the possession, use,
occupancy, construction, repair or rebuilding of the Premises or by reason of labor or materials
furnished or claimed to have been furnished to Tenant or for the Premises, but not including (i) the
Permitted Exceptions, (b) this Lease and any assignment hereof or any sublease permitted
hereunder, (iii) any mortgage, charge, lien, security interest or encumbrance created or caused by
or through Landlord or its agents, employees or representatives without the consent of Tenant, and
(iv) any liens, charges, security interests or encumbrances granted by Tenant against any Severable
Property. Tenant may provide a bond or other security reasonably acceptable to Landlord (but in
no event greater in amount than the amount of such encumbrance) to remove or pay all costs
associated with the removal of any such lien, provided the conditions of Section 5.05 shall be
satisfied. Nothing contained in this Lease shall be construed as constituting the consent or request
of Landlord, express or implied, to or for the performance (on behalf of or for the benefit of
Landlord) by any contractor, laborer, materiahnen or vendor, of any labor or services or for the
furnishing of any materials for any construction, alteration, addition, repair or demolition of or to
1226lt074 5

the Premises or any part thereof. NOTICE IS HEREBY GIVEN THAT LANDLORD WILL NOT
BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO TENANT, OR TO ANYONE HOLDING AN INTEREST IN THE PREMISES
OR ANY PART THEREOF THROUGH OR UNDER TENANT, AND THAT NO MECHANICS
OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS SHALL
ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO THE PREMISES
UNLESS BY OR THROUGH LANDLORD OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES.
Section 5.04 Indemnification.
(a) Except for the negligence or willful misconduct of any Indemnified Party
(as defined herein), Tenant shall defend all actions against Landlord acid any partner, officer,
director, member, employee or shareholder of the foregoing (collectively, "Indemnified
Parties"), with respect to, and shall pay, protect, indemnify and save harmless the Indemnified
Parties from and against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims, demands or judgments
of any nature arising from (i) injury to or death of any person, or damage to or loss of property,
on or about the Premises that occurred during the Term or connected with the use, condition or
occupancy of the Premises, (ii) default by Tenant under this Lease, (iii) use, act or omission of
Tenant or its agents, contractors, licensees, subtenants or invitees, (iv) contest referred to in
Section 5.05 of this Lease, and (v) liens against the Premises in violation of Section 5.03 of this
Lease. TENANT UNDERSTANDS AND AGREES THAT THE FOREGOING
INDEMNIFICATION OBLIGATIONS OF TENANT ARE EXPRESSLY INTENDED TO AND
SHALL INURE TO THE BENEFIT OF THE INDEMNIFIED PARTIES EVEN IF SOME OR
ALL OF THE MATTERS FOR WHICH SUCH INDEMNIFICATION IS .PROVIDED ARE
CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY THE SOLE, SIMPLE, JOINT OR
CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY OF THE INDEMNIFIED
PARTIES, BUT NOT TO THE EXTENT CAUSED BY THE INDEMNIFIED PARTIES'
NEGLIGENCE OR WILLFUL MISCONDUCT. The obligations of Tenant under this Section
5.04 shall survive any termination, expiration, rejection in bankruptcy, or assumption in
bankruptcy of this Lease.
(b) The rights and obligations of Landlord and Tenant with respect to claims by
Landlord'against Tenant brought pursuant to this Section 5.04 and Section 5.06 shall be subject to
the following conditions:
(i) If Landlord receives notice of the assertion of any claim for which
it intends to seek indemnification under this Section 5.04 or Section 5.06, Landlord shall
promptly provide written notice of such assertion to Tenant; provided that failure of
Landlord to give Tenant prompt notice as provided herein shall not relieve Tenant of any
of its obligations hereunder, except to the extent the Tenant is prejudiced by such failure.
The notice shall describe in reasonable detail the nature of the claim and the basis for an
indemnification claim under Section 5.04 or Section 5.06, and shall be accompanied by all
papers and documents which have been served upon Landlord and such other documents
and information as may be appropriate to an understanding of such claim and the liability
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of Tenant to indemnify Landlord hereunder. Except as required by law, the Landlord shall
not answer or otherwise respond to such claim or take any other action which may prejudice
the defense thereof unless and until Tenant has been given the opportunity to assume the
defense thereof as required by this Section 5.04 and refused to do so,
(ii) Upon receipt of an indemnification notice under this Section 5.04,
the Tenant shall have the right, but not the obligation, to promptly assume and take
exclusive control of the defense, negotiation and/or settlement of such claim with counsel
selected by Tenant and approved by Landlord, provided, however, that if either Landlord
or Tenant determines the representation of both parties by Tenant would be inappropriate
due to actual or potential conflict of interests between them, then Tenant shall not be
obligated to assume such defense on behalf of Landlord, but such conflict shall not lessen
Tenant's indemnity and hold harmless obligations hereunder. In the event of a conflict of
interest or dispute or during the continuance of an Event of Default, Landlord shall have
the right to select counsel, and the reasonable cost of such counsel shall be paid by Tenant.
The parties acknowledge that, with respect to claims for which insurance is available, the
rights of the parties to select counsel for the defense of such claims shall be subject to such
approval rights as the insurance company providing coverage may have.
(iii) The party controlling the defense of a claim shall keep the other
party reasonably informed at all stages of the defense of such claim. The party not
controlling the defense of any claim shall have the right, at its sole cost and expense, to
participate in, but not control, the defense of any such claim. Each party shall reasonably
cooperate with the other in the defense, negotiation and/or settlement of any such claim. In
connection with any defense, of a claim undertaken by Tenant, Landlord shall provide
Tenant, and its counsel, accountants and other representatives, with reasonable access to
relevant books and records and make available such personnel of Landlord as Tenant may
reasonably request.
Section, 5.05 Permitted Contests. Tenant, at its expense, may contest, by appropriate
legal proceedings conducted in good faith and with due diligence, any Legal Requirements with
which Tenant is required to comply pursuant to Section 5.02(b) or any Environmental Law under
Section 5.06, or the amount or validity or application, in whole or in part, of any tax, assessment
or charge which Tenant is obligated to pay or any lien, encumbrance or charge not permitted by
Sections 5.02(a), 5.03 and 6.01, provided that unless Tenant has already paid such tax, assessment
or charge, such contest may be undertaken by Tenant only in compliance with the following
conditions: (i) the commencement of such proceedings shall suspend the enforcement or collection
thereof against or from Landlord and against or from the Premises, (ii) neither the Premises nor
any rent therefrom nor any part thereof or interest therein would be in any danger of being sold,
forfeited, attached or lost, (iii) Tenant shall have furnished such security, if any, as may be required
in the proceedings, and (iv) if such contest be finally resolved against Tenant, Tenant shall
promptly pay the amount required to be paid, together with all charges, fees and penalties accrued
thereon. So long as no Event of Default has occurred and is continuing, Landlord, at Tenant's
expense, shall execute and deliver to Tenant such authorizations and other documents as
reasonably may be required in any such contest. Tenant shall indemnify and hold Landlord
harmless against any cost or expense of any kind that may be imposed upon Landlord in connection
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with any such contest and any loss resulting therefrom. Notwithstanding any other provision of
this Lease to the contrary, Tenant shall not be in default hereunder in respect to the compliance
with any Legal Requirements with which Tenant is obligated to comply pursuant to Section
5.02(b), any Environmental Law under Section 5.06, or in respect to the payment of any tax,
assessment or charge which Tenant is obligated to pay or any lien, encumbrance or charge not
permitted by Sections 5.02(a), 5.03 and 6.01 which Tenant is in good faith contesting.
Section 5.06 Environmental Compliance.
(a) For purposes of this Lease:
(i) the term "Environmental Laws" shall mean and include the
Resource Conservation and Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984, the Comprehensive Environmental Response, Compensation and
Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control
Act, the Federal Insecticide, Fungicide and Rodenticide Act and all applicable federal, state
and local environmental laws, ordinances, rules, requirements, regulations and
publications, as any of the foregoing may have been or may be from time to time amended,
supplemented or supplanted and any and all other federal, state or local laws, ordinances,
rules, requirements, regulations and publications, now or hereafter existing, relating to (i)
the preservation or regulation of the public health, safety, welfare or environment, (ii) the
regulation or control of toxic or hazardous substances or materials, or (iii) any wrongful
death, personal injury or property damage that is caused by or related to the presence,
growth, proliferation, reproduction, dispersal, or contact with any biological organism or
portion thereof (living or dead); including molds or other fungi, bacteria or other
microorganisms or any etiologic agents or materials; and
(ii) the term "Regulated Substance" shall mean and include any, each
and all substances, biological and etiologic agents or materials now or hereafter regulated
pursuant to any Environmental Laws, including any such substance, biological or
etiological agent or material now or hereafter defined as or deemed to be a "regulated
substance," "pesticide," "hazardous substance" or "hazardous_ waste" or included in any
similar or like classification or categorizatiori thereunder, petroleum or petroleum by-
products, and asbestos and asbestos -containing materials.
(b) Tenant shall:
(i) not cause or permit any Regulated Substance to be placed, held,
located, released, transported or disposed of on, under, at or from the Premises except in
full compliance with Environmental Laws;
(ii) contain at or remove from the Premises, or perform any other
necessary remedial action regarding, any Regulated Substance in any way affecting the
Premises if, as and when such containment, removal or other remedial action is either (1)
required under any Environmental Laws or (2) whether or not so required, such Regulated
Substance in any way materially adversely affects the Premises, and, upon reasonable
request of Landlord after consultation with Tenant (which request may be given only if
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Landlord has received information such that it reasonably believes that environmental
contamination exists which may violate Environmental Laws or have a material adverse
effect on the Premises), shall arrange a Site Assessment (as such term is defined in Section
5.06(c)), or such other or further testing or actions as may be required by Environmental
Laws or as may be mutually agreed to by Landlord and Tenant, to be conducted at the
Premises by qualified companies retained by Tenant specializing in environmental matters
and reasonably satisfactory to Landlord in order to ascertain compliance with all
Environmental Laws and the requirements of this Lease, all of the foregoing to be at
Tenant's sole cost and expense;
(iii) provide Landlord with written notice (and a copy as may be
applicable) of any of the following within ten (10) days of receipt thereof: (A) Tenant's
obtaining knowledge or notice of any kind of the material presence, or any actual or
threatened release, of any Regulated Substance in any way materially adversely affecting
the Premises; (B) Tenant's receipt or submission, or Tenant's obtaining knowledge or
notice of any kind, of any report, citation, notice or other communication from or to any
federal, state or local governmental or quasi -governmental authority regarding any
Regulated Substance in any way materially adversely affecting the Premises; or (C)
Tenant's obtaining knowledge or notice of any kind of the incurrence of any cost or
expense by any federal, state or local governmental Or quasi- governmental authority or
any private party in connection with the assessment, monitoring, containment, removal or
remediation of any kind of any Regulated Substance, or of the filing or recording of any
lien on the Premises or any portion thereof in connection with any such action or Regulated
Substance; and
(iv) in addition to the requirements of Section 5.04 hereof, defend all
actions against the Indemnified Parties and pay, protect, indemnify and save harmless the
Indemnified Parties from and against any and all liabilities, losses, damages, costs,
expenses (including reasonable attorneys' fees and expenses), causes of action, suits,
claims, demands or judgments of any nature relating to any Environmental Laws,
Regulated Substances or other environmental matters as all pertain to the Premises, except
to the extent caused by or through the negligent conduct or willful misconduct of Landlord,
Mortgagee, or their respective agents, employees or representatives. The indemnity
contained in this Section 5.06 shall survive the expiration or earlier termination of this
Lease, unless at the time of or after such expiration or earlier termination of this Lease,
Tenant provides Landlord a Site Assessment acceptable to Landlord showing the Premises
to be (1) free of all Regulated Substances except those placed on the Premises by Landlord,
Mortgagee, or their agents, employees or representatives, and (2) not in violation of
Environmental Laws and that there exists no condition which could result in any violations
of Environmental Laws.
(c) Upon reasonable cause and three (3) business days prior written notice from
Landlord, Tenant shall permit such reasonably qualified persons as Landlord may designate ("Site
Reviewers") to visit the Premises during reasonable times during normal business hours and
perform reasonable environmental site investigations and assessments ("Site Assessments") on
the Premises for the purpose of determining whether there exists on, under or at the Premises any
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Regulated Substance or violation of Environmental Laws or any condition which could result in
any violations of Environmental Laws. Such Site Assessments may include both above and below
the ground environmental testing for violations of Environmental Laws and such other tests as
may be necessary, in the reasonable opinion of the Site Reviewers, to conduct the Site
Assessments. Tenant shall supply to the Site Reviewers such historical and operational information
regarding the Premises as may be reasonably requested by the Site Reviewers to facilitate the Site
Assessments, and shall make available for meetings with the Site Reviewers appropriate personnel
having knowledge of such matters. The cost of performing and reporting a Site Assessment under
this subsection shall be paid by Landlord, unless the Site Assessment indicates that there exists on,
under or at the Premises any Regulated Substance in material violation of Environmental Laws or
a material violation of Environmental Laws, in which case the cost Of performing and reporting a
Site Assessment under this subsection shall be paid by Tenant.
(d) If any violation of Environmental Laws occurs or is found to exist or if
Tenant is otherwise required under the provisions of this Section 5.06 to perform remediation or
undertake any other response action, and, in Landlord's reasonable judgment based upon the
written bids of reputable environmental professionals, the cost of remediation of, or other response
action with respect to, the same is likely to exceed $100,000, Tenant shall provide to Landlord,
within ten (10) days after Landlord's request therefor, adequate financial assurances that Tenant
will effect such remediation or other response action in accordance with applicable Environmental
Laws and the requirements of this Lease. Such financial assurances shall be a bond or letter of
credit reasonably satisfactory to Landlord in form and substance and in an amount equal to one
hundred twenty-five percent (125%) of Landlord's reasonable estimate of the anticipated cost of
such remedial or other response action, based upon a Site Assessment performed pursuant to
Section 5.06(c). Notwithstanding any other provision of this Lease, if a violation of Environmental
Laws occurs or is found to exist and the Term would otherwise terminate or expire, and the
Premises cannot be rented to another Tenant on commercially reasonable terms during the
remedial or other response action, then, at the option of Landlord, the Term shall be automatically
extended beyond the date of termination or expiration and this Lease shall remain in full force and
effect beyond such date until the earlier to occur of (i) the completion of all remedial or other
response action in accordance with applicable Environmental Laws, or (ii) the date specified in a
written notice from Landlord to Tenant terminating this Lease.
(e) If Tenant fails to correct any violation of Environmental Laws which occurs
or is found to exist or fails to undertake and complete any other remediation or response action
required under the provisions of this Section 5.06, Landlord shall have the right (but no obligation)
to take any and all actions as Landlord shall reasonably deem necessary or advisable in order to
cure such violation of Environmental Laws or complete such remediation or other response action,
and in such event all reasonable expenses incurred by Landlord in connection therewith (including
attorneys' fees and expenses) shall constitute additional rent under this Lease and shall be paid by
Tenant to Landlord upon demand.
(f) All future leases, subleases or use agreements permitted by this Lease
relating to the Premises entered into by Tenant shall contain covenants of the other party not to at
any time (i) cause any violation of Environmental Laws to occur or (ii) permit any Person
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occupying the Premises through such an agreement to cause any violation of Environmental Laws
to occur.
ARTICLE VI
Section 6.01 Condemnation and Casualty.
(a) General Provisions. Except as provided in Section 6.01(b) and (c), Tenant
hereby irrevocably assigns to Landlord any award, compensation or insurance payment to which
Tenant may become entitled by reason of Tenant's interest in the Premises (i) if the use, occupancy
or title of the Premises or any part thereof is taken, requisitioned or sold in, by or on account of
any actual or threatened eminent domain proceeding or other action by any Person having the
power of eminent domain ("Condemnation") or (ii) if the Premises, or any part thereof is damaged
or destroyed by fire, flood or other casualty ("Casualty'). All awards, compensations and
insurance payments on account of any Condemnation or Casualty are herein collectively called
"Compensation". Tenant may not unilaterally negotiate, prosecute or adjust any claim for any
Compensation; Tenant must consult with Landlord and obtain Landlord's consent thereto. If the
parties are unable to so agree, then they shall appoint an entity or individual that specializes in
such negotiations which entity or individual shall negotiate, prosecute and adjust a claim for
Compensation. Landlord shall be entitled to participate in any such proceeding, action, negotiation,
prosecution, appeal or adjustment as contemplated herein. Notwithstanding anything to the
contrary contained in this Article VI, if permissible under applicable law, any separate
Compensation made to Tenant ("Tenant's Comnensation'� for its moving and relocation
expenses, anticipated loss of business profits, loss of fixtures and equipment paid for by Tenant
and which are not part of the Premises (including the Severable Property) shall be paid directly to
and shall be retained by Tenant (and shall not be deemed to be Compensation), and Tenant shall
have no obligation to deliver any such funds to Landlord. All Compensation shall be applied
pursuant to this Section 6.01, and all such Compensation (less the expense of collecting such
Compensation) is herein called the "Net Proceeds." Except as specifically set forth herein, all Net
Proceeds shall be paid to the Proceeds Trustee (as defined herein) and applied pursuant to this
Section 6.01. If the Premises or any part thereof shall be damaged or destroyed by Casualty, and
if the estimated cost of rebuilding, replacing or repairing the same shall exceed $50,000, Tenant
promptly shall notify Landlord thereof.
(b) Substantial Condemnation during the Term. If a final; non -appealable
judgment of Condemnation shall be rendered which affects all or a substantial portion of the
Premises and shall render the Improvements permanently untenantable for Tenant's use and
occupancy in Tenant's business, then Tenant may, not later than sixty (60) days after a
determination has been made as to when possession of the Premises must be delivered with respect
to such Condemnation, deliver to Landlord (i) notice of its intention ("Notice of Intention') to
terminate this Lease on the rental payment date which occurs not less than thirty (30) days after
the delivery of such Notice of Intention (the "Condemnation Termination Date"), and (ii) a
certificate of an authorized officer of Tenant describing the event giving rise to such termination
and stating that such Condemnation has rendered the Improvements permanently untenantable for
Tenant's use and occupancy in Tenant's business. This Lease shall terminate on the
Condemnation Termination Date, except with respect to obligations and liabilities of Tenant
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hereunder, actual or contingent, which have accrued on or prior to the Condemnation Termination
Date, upon payment by Tenant of all Basic Rent, additional rent and other sums due and payable
hereunder to and including the Condemnation Termination Date, The Net Proceeds, not including
Tenant's Compensation, from any Condemnation shall belong to and be paid, assigned and set
over to Landlord.
(c) Substantial Casualty during the Last Two Years of the Term. If an
insured Casualty shall occur with respect all or a substantial portion of the improvements during
the last two (2) years of the Term and shall render the Improvements untenantable for Tenant's
use and occupancy in Tenant's business for a period of greater than 180 days, then Tenant may,
not later than sixty (60) days after such Casualty, deliver to Landlord (i) notice of its intention to
terminate this Lease on the next rental payment date which occurs not less than sixty (60) days
after the delivery of such notice (the "Casualty Termination Date"), and (ii) a certificate of an
authorized officer of Tenant describing the event giving rise to such termination and stating that
such Casualty has rendered the Improvements permanently untenantable for Tenant's use and
occupancy in Tenant's business. Upon payment by Tenant of all Basic Rent, additional rent and
other sums then due and payable hereunder to and including the Casualty Termination Date, this
Lease shall terminate on the Casualty Termination Date except with respect to obligations and
liabilities of Tenant hereunder, actual or contingent, which have accrued on or prior to the Casualty
Termination Date, and the Net Proceeds, not including Tenant's Compensation, from any Casualty
shall belong to and be paid, assigned and set over to Landlord.
(d) Less Than Substantial Condemnation or any Casualty. If, after a
Condemnation or Casualty, Tenant does not give or does not have the right to give notice of its
intention to terminate this Lease as provided in subsection 6.01(b) or 6.01(c), then this Lease shall
continue in full force and effect and Tenant shall, at its expense, rebuild, replace or repair the
Premises in conformity with the requirements of subsections 2.01, 2.02 and 5.03 so as to restore
the Premises (in the case of Condemnation, as nearly as practicable) to the condition, and character
thereof immediately prior to such Casualty or Condemnation. To the extent the Net Proceeds with
respect to any Casualty are less than $100,000, such amount shall be paid to Tenant to be used to
rebuild, replace or repair the Premises in a lien free and good and workmanlike manner. To the
extent the Net Proceeds from any Casualty are $100,000 or greater, such amount shall be paid to
the Proceeds Trustee and prior to any such rebuilding, replacement or repair, Tenant shall
determine the maximum cost thereof (the "Restoration Cost', which amount shall be reasonably
acceptable to Landlord. The Restoration Cost shall be, paid first out of Tenant's own funds to the
extent that the Restoration Cost exceeds the Net Proceeds payable in connection with such
occurrence, after which expenditure Tenant shall be entitled to receive the Net Proceeds from the
Proceeds Trustee, but only against (i) certificates of Tenant delivered to Landlord and the Proceeds
Trustee from time to time but no more often than monthly as such work of rebuilding, replacement
and repair progresses, each such certificate describing the work for which Tenant is requesting
payment and the cost incurred by Tenant in connection therewith and stating that Tenant has not
theretofore received payment for such work and (ii) such additional documentation or conditions
as Landlord or the Proceeds Trustee may reasonably require, including copies of all contracts and
subcontracts relating to restoration, architects' certifications, title policy updates and lien waivers
or releases. Any Net Proceeds remaining after final payment has been made for such work from
Net Proceeds and after Tenant has been reimbursed from Net Proceeds for any portions it
15
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contributed to the Restoration Cost with respect to any Casualty shall be paid to Tenant and with
respect to any Condemnation shall be paid to Landlord. In the event of any temporary
Condemnation, this Lease shall remain in full effect and Tenant shall be entitled to receive the Net
Proceeds allocable to such temporary Condemnation, except that any portion of the Net Proceeds
allocable to the period after the expiration or termination of the Term shall be paid to Landlord. If
the cost of any rebuilding, replacement or repair required to be made by Tenant pursuant to this
subsection 6.01(d) shall exceed the amount of such Net Proceeds, the deficiency shall be paid by
Tenant.
Section 6.02 Insurance.
(a) Tenant will maintain insurance on the Premises of the fallowing character:
(i) Insurance (on an occurrence basis) against all risks of direct physical
loss ("Causes of Loss - Special Form"), including loss by fire, lightning, flooding (if the
Premises are in a flood zone), earthquakes (if the Premises are in an earthquake zone), and
other risks which at the time are included under "extended coverage" endorsements, on
ISO form CP1030, or its equivalent, in amounts sufficient to prevent Landlord and Tenant
from becoming a coinsurer of any loss but in any event in amounts not less than 100% of
the actual replacement cost of the Improvements, exclusive of foundations and excavations,
without any exclusions other than standard printed exclusions and without exclusion for
terrorism and with deductibles of not more than $250,000.00 per occurrence;
(ii) Commercial general liability insurance and/or umbrella liability
insurance, on ISO form CG 0001 0413, or its equivalent, against claims for bodily injury,
death or property damage occurring on, in or about the Premises in the minimum amount
of $5,000,000;
(iii) Rent loss insurance or business interruption insurance in an amount
sufficient to cover loss of rents from the Premises pursuant to this Lease for a period of at
least twelve (12) months;
(iv) Worker's compensation insurance to the extent required by the law
of the state in which the Premises are located;
(v) Boiler and machinery insurance in respect of any boilers and similar
apparatus located on the Premises in the minimum amount of $500,000 or in such greater
amounts as to adequately insure the Premises;
(vi) During any period of construction on the Premises, builder's risk
insurance on a completed value, non -reporting basis for the total cost of such alterations or
improvements, and workers' compensation insurance as required by applicable law. This
coverage may be provided by Tenant's all risk property insurance pursuant to
Section 6.02(a)(i) herein; and
Such insurance shall be written by companies authorized to do business in the state
where the Premises are located and carrying a claims paying ability rating of at least A: XII by
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A.M. Best or A by Standard and Poor's, as applicable, and with the exception of workers'
compensation insurance, shall name Landlord as an additional insured as its interest may appear.
(b) Every such policy provided pursuant to Section 6.02(a)(i), above shall bear
a mortgagee endorsement in favor of the Mortgagee under any Mortgage and any loss under any
such policy shall be payable to the Mortgagee which has a first lien on such interest (if there is
more than one first Mortgagee, then to the trustee for such Mortgagees) to be held and applied by
Mortgagee toward restoration pursuant to Section 6.01, and (ii) contain an ordinance or law
coverage endorsement. Every such policy with the exception of workers' compensation insurance
shall name the Mortgagee as an additional insured as its interest may appear. Every policy referred
to in subsection 6.02(a) shall provide that it will not be cancelled or amended except after thirty
(30) days written notice to Landlord and the Mortgagee. The "Proceeds Trustee" shall be a
financial institution selected by Landlord and reasonably approved by Tenant and may be the
Mortgagee.
(c) Tenant shall deliver to Landlord certificates of insurance evidencing the
existence of all insurance which is required to be maintained by Tenant hereunder and payment of
all premiums therefor, such delivery to be made upon the execution and delivery hereof. Tenant
shall not obtain or carry separate insurance concurrent in form or contributing in the event of loss
with that required by this Section 6.02 unless Landlord is named an additional insured therein and
unless there is a mortgagee endorsement in favor of Mortgagee with loss payable as provided
herein. Tenant shall immediately notify Landlord whenever any such separate insurance is
obtained and shall deliver to Landlord the policies or certificates evidencing the same. Any
insurance required hereunder may be provided under blanket policies, provided that the Premises
are specified therein.
(d) The requirements of this Section 6.02 shall not be construed to negate or
modify Tenant's obligations under Section 5.04.
(e) Notwithstanding anything contained in this Lease to the contrary, each party
hereto hereby waives any and all rights of recovery, claim, action or cause of action, against the
other party and its agents, officers, and employees, for any loss or damage that may occur to the
Premises (including the Improvements) or to the Severable Property or any other property of
Tenant in, on or about the Premises, regardless of cause or origin, including the negligence of the
other party and its agents, officers, and employees, without prejudice to any waiver or indemnity
provisions applicable to Tenant and any limitation of liability provisions applicable to Landlord
hereunder, of which provisions Tenant shall notify all insurers. Landlord and Tenant agree that
any Policies presently existing or obtained on or after the date hereof (including renewals of
present policies) shall include a clause or endorsement to the effect that any such release shall not
adversely affect or impair said policies or prejudice the right of the insured to recover thereunder
and that the insurer expressly waives its rights of subrogation against Landlord or Tenant, as the
case may be, with respect to any claims under any such policies to the fullest extent permitted by
law.
ARTICLE VII
Section 7.01 Conditional Limitations; Default Provisions.
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(a) Any of the following occurrences or acts shall constitute an Event of Default
under this Lease:
(i) If Tenant shall (1) fail to pay any Basic Rent, recurring additional
rent or other recurring sum when due or (2) fail to observe or perform any other provision
hereof not otherwise specifically described in this Section 7.01(a) and such monetary
failure shall continue for five (5) days, or such non -monetary failure shall continue for
thirty (30) days, after written notice to Tenant of such failure (provided that, in the case of
any such non -monetary failure which cannot be cured by the payment of money and cannot
with diligence be cured within such thirty (30) day period, if Tenant shall commence
promptly to cure the same and thereafter prosecute the curing thereof with diligence, the
time within which such failure may be cured shall be extended for such period not to exceed
ninety (90) days as is necessary to complete the curing thereof with diligence);
(ii) If any representation or warranty of Tenant set forth in this Lease or
any certificate provided by Tenant pursuant to this Lease, shall prove to be incorrect in any
material respect as of the time when the same shall have been made and such
representation, warranty or certificate shall continue to be incorrect for thirty (30) days
after written notice to Tenant;
(iii) If Tenant shall file a petition in bankruptcy or for reorganization or
for an arrangement pursuant to any federal or state law or shall be adjudicated a bankrupt
or become insolvent or shall make an assignment for the benefit of creditors, or if a petition
proposing the adjudication of Tenant as a bankrupt or its reorganization pursuant to any
federal or state bankruptcy law or any similar federal or state law shall be filed in any court
and Tenant shall consent to or acquiesce in the filing thereof or such petition shall not be
discharged or denied within ninety (90) days after the filing thereof,
(iv) If a receiver, trustee or conservator of Tenant, or of all or
substantially all of the assets of Tenant, or of the Premises or Tenant's estate therein shall
be appointed in any proceeding brought by Tenant, or if any such receiver, trustee or
conservator shall be appointed in any proceeding brought against Tenant and shall not be.
discharged within ninety (90) days after such appointment, or if Tenant shall consent to or
acquiesce in such appointment;
(v) If Tenant assigns this Lease or sublets the Premises without
Landlord's consent in violation of Section 4.01 hereof or without complying with the
express terms of Section 4.03 hereof;
(vi) If any breach occurs under Section 5.06 hereof and such breach is
not cured within thirty (30) days after Landlord gives notice of breach (provided that, in
the case of any such breach which cannot be cured by the payment of money and cannot
with diligence be cured within such thirty (30) day period, if Tenant shall commence
promptly to cure the breach and thereafter prosecute the curing thereof with diligence, the
time within which such failure may be cured shall be extended for such period not to exceed
ninety (90) days as is necessary to complete the curing thereof with diligence);
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(vii) If Tenant fails to deliver any financial statements or reports required
to be delivered under this Lease, provided that if the failure continues for less than thirty
(30) days after written notice to Tenant of such failure, Tenant may cure such Event of
Default by delivering such financial statements and reports within thirty (30) days after the
same are due;
(b) If an Event of Default shall have happened and be continuing, Landlord
shall have the right to give Tenant notice of Landlord's termination of the Term. Upon the giving
of such notice, the Term and the estate hereby granted shall expire and terminate on such date as
fully and completely and with the same effect as if such date were the date herein fixed for the
expiration of the Term, and all rights of Tenant hereunder shall expire and terminate, but Tenant
shall remain liable as hereinafter provided.
(c) If an Event of Default shall have happened and be continuing, Landlord
shall have the immediate right, whether or not the Term shall have been terminated pursuant to
subsection 7.01(b), to reenter and repossess the Premises and the right to remove all persons and
property (subject to Section 3.02) therefrom by summary proceedings, ejectment or any other legal
action or in any lawful manner Landlord determines to be necessary or desirable. Landlord shall
be under no liability by reason of any such reentry, repossession or removal. No such reentry,
repossession or removal shall be construed as an election by Landlord to terminate the Term unless
a notice of such termination is given to Tenant pursuant to subsection 7.01(b) or unless such
termination is decreed by a court.
(d) At any time or from time to time after a reentry, repossession or removal
pursuant to subsection 7.01(c), whether or not the Term shall have been terminated pursuant to
subsection 7.01(b), Landlord may relet the Premises for the account of Tenant, in the name of
Tenant or Landlord or otherwise. Landlord may collect any rents payable by reason of such
reletting. Landlord shall not be liable for any failure to relet the Premises or for any failure to
collect any rent due upon any such reletting. To the extent required by applicable Legal
Requirements, Landlord agrees to make reasonable efforts to mitigate its damages under this
Lease in the event Tenant actually vacates or advises Landlord that it is, as of a specified date, to
vacate the Premises. The phrase "reasonable efforts," as it relates to Landlord's duty to attempt
to relet the Premises, shall require Landlord to do only the following: (i) notify Landlord's
management company, if any, in writing of. the availability of the Premises for reletting and
authorize same to advertise as appropriate, (ii) post Landlord's leasing contact telephone number
in an appropriate area of the Premises, and (iii) show the Premises to any prospective tenant
interested in the Premises and to any prospective tenant specifically referred to Landlord by
Tenant. Under any requirement of Landlord to use reasonable efforts as described herein, (A)
Landlord shall not be required to relet the Premises ahead of any other properties in the same
market not producing any income to Landlord; (B) Landlord shall be entitled to consider tenant
quality, the financial condition of any prospective tenant, the nature of the Premises, the proposed
use of the Premises by any prospective tenant, and any rights of existing subtenants located in the
Premises, in making any leasing decision without being deemed to have violated its mitigation
requirement hereunder; and (C) under any new lease entered into by Landlord, Landlord may relet
all or any portion of the Premises to create an appropriate block of space for a new tenant, may
relet for a greater or lesser term than that remaining at that time under this Lease, and may include
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free rent, concessions, inducements, alterations and upgrades in the new lease. If a reletting
occurs, Landlord shall recoup all of its expenses of reletting (including all expenses relating to
remodeling, alterations, repairs, capital improvements, brokerage fees, decorating fees, and fees
for architects, designers, space planners and attorneys) before Tenant is entitled to a credit on the
damages owed by Tenant hereunder. If Landlord shall do all the foregoing then, anything in this
Lease, or any statute, or common law rule to the contrary notwithstanding, Landlord shall be
deemed to have met its duty (if any) to mitigate its damages hereunder.
(e) No expiration or termination of the Term pursuant to subsection 7.01(b), by
operation of law or otherwise, and no reentry, repossession or removal pursuant to subsection
7.01(c) or otherwise, and no reletting of the Premises pursuant to subsection 7.01(d) or otherwise,
shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such
expiration, termination, reentry, repossession, removal or reletting other than as provided by
applicable law.
(f) In the event of any expiration or termination of the Term or reentry or
repossession of the Premises or removal of persons or property therefrom by reason of the
occurrence of an Event of Default, Tenant shall pay to Landlord all Basic Rent, additional rent and
other sums required to be paid by Tenant, in each case to and including the date of such expiration,
termination, reentry, repossession or removal, and, thereafter, Tenant shall, until the end of what
would have been the Term in the absence of such expiration, termination, reentry, repossession or
removal and whether or not the Premises shall have been relet, be liable to Landlord for, and shall
pay to Landlord, as liquidated and agreed current damages: (i) all Basic Rent, all additional rent
O and other sums which would be payable under this Lease by Tenant in the absence of any such
expiration, termination, reentry, repossession or removal, together with all expenses of Landlord
in connection with such reletting (including all repossession costs, brokerage commissions,
reasonable attorneys' fees and expenses (including fees and expenses of appellate proceedings),
employee's expenses, alteration costs and expenses of necessary preparation for such reletting),
less (ii) the net proceeds, if any, of any reletting effected for the account of Tenant pursuant to
subsection 7.01(d). Tenant shall pay such liquidated and agreed current damages on the dates on
which rent would be payable under this Lease in the absence of such expiration, termination,
reentry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant
on each such date.
(g) At any time after any such expiration or termination of the Term or reentry
or repossession of the Premises or removal of persons or property therefrom by reason of the
occurrence of an Event of Default, whether or not Landlord shall have collected any liquidated
and agreed current damages pursuant to subsection 7.01(t), Landlord shall be entitled to recover
from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final
damages for Tenant's default and in lieu of all liquidated and agreed current damages beyond the
date of such demand (it being agreed that it would be impracticable or extremely difficult to fix
the actual damages), an amount equal to the excess, if any, of (i) the aggregate of all Basic Rent,
additional rent and other sums which would be payable under this Lease, in each case from the
date of such demand (or, if it be earlier, to date to which Tenant shall have satisfied in full its
obligations under subsection 7.01(f) to pay liquidated and agreed current damages) for what would
be the then unexpired Term in the absence of such expiration, termination, reentry, repossession
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or removal, discounted at the Reference Rate, over (ii) the then fair rental value of the Premises,
discounted at the Reference Rate for the same period. If any law shall limit the amount of liquidated
final damages to less than the amount above agreed upon, Landlord shall be entitled to the
maximum amount allowable under such law.
Section 7.02 Bankruptcy or Insolvency.
(a) If Tenant shall become a debtor in a case filed under Chapter 7 or Chapter
I l of the Bankruptcy Code and Tenant or Tenant's trustee shall fail to elect to assume this Lease
within sixty (60) days after the filing of such petition or such additional time as provided by the
court within such sixty (60) day period, this. Lease shall be deemed to have been rejected.
Immediately thereupon, Landlord shall be entitled to possession of the Premises without further
obligation to Tenant or Tenant's trustee, and this Lease, upon the election of Landlord, shall
terminate, but Landlord's right to be compensated for damages (including liquidated damages
pursuant to any provision hereof) or the exercise of any other remedies in any such proceeding
shall survive, whether or not this Lease shall be terminated.
(b) Neither the whole nor any portion of Tenant's interest in this Lease or its
estate in the Premises shall pass to any trustee, receiver, conservator, assignee for the benefit of
creditors or any other Person, by operation of law or otherwise under the laws of any state having
jurisdiction of the person or property of Tenant, unless Landlord shall have consented to such
transfer. No acceptance by Landlord of rent or any other payments from any such trustee, receiver,
assignee, or Person shall not be deemed to constitute such consent by Landlord nor shall it be
deemed a waiver of Landlord's right to terminate this Lease for any transfer of Tenant's interest
under this Lease without such consent.
Section 7.03 Additional Rights of Landlord.
(a) Except as provided in Section 7.01(g), no right or remedy hereunder shall
be exclusive of any other right or remedy, but shall be cumulative and in addition to any other right
or remedy hereunder or now or hereafter existing. Failure to insist upon the strict performance of
any provision hereof or to exercise any option, right, power or remedy contained herein shall not
constitute a waiver or relinquishment thereof for the future. Receipt by Landlord of any Basic
Rent, additional rent or other sums payable hereunder with knowledge of the breach of any
provision hereof shall not constitute waiver of such breach, and no waiver by Landlord of any
provision hereof shall be deemed to have been made unless made in writing. Landlord shall be
entitled to seek injunctive relief in case of the violation, or attempted or threatened violation, of
any of the provisions hereof, or to a decree compelling performance of any of the provisions hereof,
or to any other remedy allowed to Landlord by law or equity,
(b) Tenant hereby waives and surrenders for itself and all those claiming under
it, including creditors of all kinds, (i) any right and privilege which it or any of them may have to
redeem the Premises or to have a continuance of this Lease after termination of Tenant's right of
occupancy by order or judgment of any court or by any legal process or writ, or under the terms
of this Lease, or after the termination of the Term as herein provided, (ii) the benefits of any law
which exempts property from liability for debt and (iii) Tenant specifically waives any rights of
redemption or reinstatement available by law or any successor law.
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(c) If an Event of Default on the part of Tenant shall have occurred hereunder
and be continuing, then, without thereby waiving such default, Landlord may, but shall be under
no obligation to, take all action, including entry upon the Premises, to perform the obligation of
Tenant hereunder immediately and without notice in the case of any emergency as may be
reasonably determined by Landlord and upon five (5) business days' notice to Tenant in other
cases. All reasonable expenses incurred by Landlord in connection therewith, including attorneys'
fees and expenses (including those incurred in connection with any appellate proceedings), shall
constitute additional rent under this Lease and shall be paid by Tenant to Landlord upon demand.
(d) If Tenant shall be in default in the performance of any of its obligations
under this Lease beyond any applicable grace or cure period hereunder, Tenant shall pay to
Landlord., on demand, all expenses incurred by Landlord as a result thereof, including reasonable
attorneys' fees and expenses (including those incurred in connection with any appellate
proceedings) and any additional sums (including any late charge, default penalties, interest and
fees of the counsel of Mortgagee) which are payable by Landlord to its Mortgagee by reason of
Tenant's late payment or non-payment of Basic Rent. If Landlord shall be made a party to any
litigation commenced against Tenant and Tenant shall fail to provide Landlord with counsel
approved by Landlord and pay the expenses thereof, Tenant shall pay all costs and reasonable
attorneys' fees and expenses in connection with such litigation (including fees and expenses
incurred in connection with any appellate proceedings).
(e) If Tenant shall fail to pay when due any Basic Rent, additional rent or other
sum required to be paid by Tenant hereunder, Landlord shall be entitled to collect from Tenant as
additional rent and Tenant shall pay to Landlord, in addition to such Basic Rent, additional rent or
other sum, interest on the delinquency equal to the Late Rate from the date due until paid. The
Late Rate shall be the lesser of (i) ten percent (10%) per annum or (ii) the maximum rate permitted
by applicable law. In addition to all other remedies Landlord has hereunder, if Tenant shall fail to
pay any Basic Rent, additional rent or other sum, as and when required to be paid by Tenant
hereunder prior to the expiration for the period of payment pursuant to subsection 7.01(a)(i),
Landlord shall be entitled to collect from Tenant, and Tenant shall pay to Landlord, as additional
rent, a late payment charge in an amount equal to five percent (5%) of the amount shown in the
notice as unpaid.
ARTICLE V111
Section 8.01 Notices and Other instruments. All notices, offers, consents and other
instruments given pursuant to this Lease shall be in writing and shall be validly given when hand
delivered or sent by a courier or express service guaranteeing overnight delivery or by telecopy or
electronic mail transmission, with original being promptly sent as otherwise provided above,
addressed as follows:
If for Tenant: Thermoform Plastics, Inc.
2001 Oaks Parkway
Belmont, NC 28012
Attn: James C. Melton
Email: jmeltonQa wilbertinc.com
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With copy to: McGuireWoods LLP
201 North Tryon Street
Charlotte, NC 28202
Attn: Harrison Marshall, Esq.
Email: [e-mail]
If for Landlord: BNC Real Estate Holdings, LLC
108 Buchanan Church Road
Greensboro, NC 28214
Attn: Mr. doe Suhor
Email: [e-mail]
With copy to: Spencer Fane LLP
1000 Walnut, Suite 1400
Kansas City, MO 64106
Attn: Allison Tanner, Esq.
Email: atanner rc sl2encerfane.com
Landlord and Tenant may from time to time specify, by giving ten (i 0) days' advance written
notice to each other party, (i) any other address in the United States as its address for purposes of
this Lease, and (ii) any other Person in the United States that is to receive copies of notices, offers,
consents and other instruments hereunder. Notice under the terms of this Lease shall be deemed
delivered, whether or not actually received, upon the earlier of (A) the date of actual receipt by
such party, or (B) the day after said notice is either deposited with such overnight delivery service,
transmitted by electronic mail transmission, or personally delivered, as applicable, pursuant to the
above provisions. Notices hereunder may be delivered by counsel on behalf of a party hereto, and
such notice shall have the same effect as if delivered directly by the party hereto.
Section 8.02 Estoppel Certificates; Financial Information.
(a) Tenant will, upon ten (10) business days' advance written notice at the
request of Landlord or a Mortgagee, execute, acknowledge and deliver to Landlord a certificate of
Tenant, stating that (i) this Lease is unmodified and in full•force and effect (or, if there have been
modifications, that this Lease is in full force and effect as modified, and setting forth such
modifications), (ii) the dates to which Basic Rent, additional rent and other sums payable
hereunder have been paid, and the applicable amounts thereof, (iii) (A) no default caused by Tenant
exists under this Lease, to Tenant's knowledge, no default exists under this Lease caused by any
other party, and no fact or circumstance exists which, with the giving of notice, the, passage of
time, or both, would constitute a default hereunder, and (B) if any such default, fact or
circumstance exists, specifying each such default, fact or circumstance, (iv) whether Tenant
continues to occupy and operate the Premises, (v) Tenant has no right of offset against Rent, (vi)
Tenant's representations and warranties set forth in this Lease remain true and correct in all
material respects, and (vii) such other information as Landlord or Mortgagee shall reasonably
request. Any such certificate may be relied upon by any actual or prospective mortgagee, investor
or purchaser of the Premises.
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R
(b) Tenant shall deliver to Landlord as soon as available, but in any event within
one hundred twenty (120) days of the close of each fiscal year, annual audited GAAP based
consolidated financial statements of the parent of Tenant and all other subsidiaries which, at a
minimum, shall include balance sheets as of the end of such fiscal year and the related statement
of operations, statement of cash flows and statement of stockholders' equity, which consolidated
statements shall be audited and include the independent auditor's report from a firm of independent
certified public accountants and shall set forth in comparative form corresponding figures for the
preceding fiscal year. Tenant shall also deliver to Landlord, within forty-five (45) days after the
end of each fiscal quarter, unaudited internal consolidated financial statements certified by
Tenant's chief financial officer to be true, accurate and complete which, at a minimum, shall
include a balance sheet as of the end of such quarter and related statements of operations for such
quarter setting forth, in each case, in comparative form, the figures from the similar quarter of the
preceding year.
(c) Upon an Event of Default and upon advance written notice of at least three
(3) business days, Landlord and its agents and designees may enter upon and examine the Premises
during normal business hours. Except in the event of emergency, Tenant may designate an
employee to accompany Landlord, its agents and designees on such examinations. Upon an Event
of Default, Tenant will provide access to its officers and employees during normal business hours
on advance written notice of at least three (3) business days to discuss the finances and business
and make available copies of information reasonably requested by Landlord and relevant to the
Premises. Landlord and its agents and designees may also enter upon and examine the Premises
and show the Premises to prospective mortgagees and/or purchasers or investors during normal
business hours upon advance written notice of at least three (3) business days.
(d) Landlord agrees to exercise the same care it exercises with respect to its
own confidential and proprietary information to protect Tenant's Confidential Information (as
hereinafter defined) against unauthorized use, loss, theft or disclosure. Landlord shall restrict
access to such Confidential Information to its employees, agents, attorneys, lenders, partners,
investors and potential purchasers who need to know such information (requiring such other parties
to keep the information confidential) or as required by law. "Confidential Information" as used
herein means all financial information, in any form, that is disclosed by Tenant pursuant to its
obligations under Sections 8.02(b) and 8.02(c) above. Confidential Information does not include
any information that (a) is now or becomes publicly available by lawful means and without breach
of any confidentiality obligation; (b) was known by Landlord prior to the date of disclosure; or (c)
is lawfully obtained from any third party. Landlord agrees that if any act in violation of the
provisions of this Section 8.02(d) hereof occurs, Tenant shall be entitled to an injunction
prohibiting Landlord from engaging in any such act or specifically enforcing the provisions of this
Section 8.02(d).
ARTICLE IX
Section 9.01 No Merger. There shall be no merger of this Lease or of the leasehold estate
hereby created with the Landlord's estate in the Premises by reason of the fact that the same Person
acquires or holds, directly or indirectly, this Lease or the leasehold estate hereby created or any
ln61IQ39 5
24

interest herein or in such leasehold estate, as well as the Landlord's estate in the Premises or any
interest of Landlord's in such estate.
Section 9.02 Surrender. Upon the expiration or termination of this Lease, Tenant shall
surrender the Premises to Landlord in as good repair and condition as received under Section
2.01(a) except for any damage resulting from Condemnation or Casualty or normal wear and tear
not required to be repaired by Tenant. The provisions of this Section shall survive the expiration
or other termination of this Lease.
Section 9.03 Time. Time is of the essence with respect to this Lease, and the respective
time periods set forth herein.
Section 9.04 Separability; Binding Effect; Governing Law. Each provision hereof
shall be separate and independent, and the breach of any provision by Landlord shall not discharge
or relieve Tenant from any of its obligations hereunder. Each provision hereof shall be valid and
shall be enforceable to the extent not prohibited by law. If any provision hereof or the application
thereof to any Person or circumstance shall to any extent be invalid or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected thereby. All provisions contained
in this Lease shall be binding upon, inure to the benefit of and be enforceable by the successors
and assigns of Landlord to the same extent as if each such successor and assign were named as a
party hereto. All provisions contained in this Lease shall be binding upon the successors and
assigns of Tenant and shall inure to the benefit of and be enforceable only by the permitted
successors and assigns of Tenant in each case to the same extent as if each successor and assign
were named as a party hereto, This Lease shall be governed by and interpreted in accordance with
the laws of the state in which the Premises are located.
Section 9.05 Table of Contents and Headings; Internal References. The table of
contents and the headings of the various paragraphs and exhibits of this Lease have been inserted
for reference only and shall not to any extent have the effect of modifying the express terms and
provisions of this Lease. Unless stated to the contrary, any references to any Section, subsection,
Exhibit and the like contained herein are to the respective Section, subsection, Exhibit and the
like of this Lease.
Section 9.06 Counterparts. This Lease may be executed in two or more counterparts
and shall be deemed to have become effective when and only when one or more of such
counterparts shall have been executed by or on behalf of each of the parties hereto (although it
shall not be necessary that any single counterpart be executed by or on behalf of each of the parties
hereto, and all such counterparts shall be deemed to constitute but one and the same instrument)
and shall have been delivered by each of the parties to the other..
Section 9.07 Landlord's Liability. Notwithstanding anything to the contrary provided
in this Lease, it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Landlord, that there shall be absolutely no personal
liability on the part of any partner, director, member, officer or shareholder of Landlord, its
successors or assigns with respect to any of the terms, covenants and conditions of this Lease, and
25
122611039_5

any liability on the part of Landlord shall be limited solely to Landlord's interest in the Premises,
such exculpation of liability to be absolute and without any exception whatsoever.
Section 9.08 Amendments and Modifications. Except as expressly provided herein,
this Lease may not be modified or terminated except by a writing signed by Landlord and Tenant.
Section 9.09 Additional Rent. All amounts other than Basic Rent which Tenant is
required to pay or discharge pursuant to this Lease, including the charge provided for by Section
7.03(e) hereof, shall constitute additional rent which shall include all reasonable costs and
expenses of Tenant and Landlord which are incurred in connection or associated with (A) the use,
occupancy, possession, operation, condition, design, construction, maintenance, alteration, repair
or restoration of any of the Premises, (B) the performance of any of Tenant's obligations under
this Lease; (C) the prosecution, defense or settlement of any litigation involving or arising from
any of the Premises or this Lease, (D) the enforcement by Landlord, its successors and assigns, of
any of its rights under this Lease, (E) any amendment to or modification of this Lease made at the
request of Tenant, (F) costs of Landlord's counsel incurred in connection with any act undertaken
by Landlord (or its counsel) at the request of Tenant, or incurred in connection with any act of
Landlord performed on behalf of Tenant pursuant to this Lease.
Section 9.10 Consent of Landlord. Except as specifically set forth in this Lease, all
consents and approvals to be granted by Landlord shall not be unreasonably withheld or delayed,
and Tenant's sole remedy against Landlord for the failure to grant any consent shall be to seek
injunctive relief. In no circumstance will, Tenant be entitled to damages with respect to the failure
to grant any consent or approval.
Section 911 Quiet Enjoyment. Landlord agrees that, subject to the rights of Landlord
under this Lease, and so long as no Event of Default has occurred, Tenant shall hold and enjoy the
Premises during the term of this Lease, free from any hindrance or interference from Landlord or
any party claiming by, through or under Landlord.
Section 9.12 Holding Over. If Tenant remains in possession of the Premises, or any part
thereof, after the expiration or other termination of the Term, without Landlord's express written
consent, Tenant shall be guilty of an unlawful detention of the Premises and shall be liable to
Landlord for damages for use of the Premises during the period of such unlawful detention at a
rate equal to one hundred fifty percent (150%) times the Basic Rent and all other amounts which
would be payable during the Term hereof (collectively, "Holdover Rent"), plus any direct
damages suffered by Landlord. In the event of such unlawful detention, Tenant shall indemnify
and hold Landlord harmless from and against any and all claims, suits, proceedings, losses,
damages, liabilities, costs and expenses, including attorneys' fees and disbursements, asserted
against or incurred by Landlord, as a result of such unlawful detention. Notwithstanding the
foregoing, Landlord shall be entitled to such other remedies and damages provided under this
Lease or at law or in equity.
Section 9.13 Compliance with Terrorism Laws. Each of Landlord and Tenant
represents and warrants to the other that neither the indemnifying party nor any Person controlling
the indemnifying party (i) is included on any Government List (as hereinafter defined); (ii) has
been determined by competent authority to be subject to the prohibitions contained in Presidential
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122611039 5

Executive Order No. l 33224 (September 23, 2001) or in any enabling or implementing legislation
or other Presidential Executive Orders in respect thereof, (iii) has been previously indicted for or
convicted of any felony involving a crime or crimes of moral turpitude or for any offense under
the criminal laws against terrorists, the criminal laws against money laundering, the Bank Secrecy
Act, as amended, the Money Laundering Control Act of 1986, as amended, or the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorists (USA PATRIOT ACT) Act of 2001, Public Law 107-56 (October 26, 2001), as
amended; or (iv) to the indemnifying party's knowledge, is currently under investigation by any
governmental authority for alleged criminal activity. For purposes of this Lease, the term
"Government List" means (1) the Specialty Designated Nationals and Blocked Persons Lists
maintained by the Office of Foreign Assets Control, United States Department of the Treasury
("OFAC"), (2) the Denied Persons List and the Entity List maintained by the United States
Department of Commerce, (3) the List of Terrorists and List of Disbarred Parties maintained by
the United States Department of State, (4) any other list of terrorists, terrorist organizations or
narcotics traffickers maintained pursuant to any of the lists, laws, rules and regulations maintained
by OFAC pursuant to any authorizing statute, Executive Order or regulation, (5) any other similar
Iist maintained by the United States Department of State, the United States Department of
Commerce or any other governmental authority or pursuant to any Executive Order of the
President of the United. States of America and (6) any list or qualification of "Designated
Nationals" as defined in the Cuban Assets Control Regulations, 31 C.F.R. Part 515, as all such
Government Lists may be updated from time to time.
Section 9.14 Subordination and Attornment.
(a) Subordination to Mortgages. Landlord shall be free to convey the
Premises or any part thereof or interest therein, and to collaterally assign or pledge its interest in
the Lease, as security for any financing to which Landlord and/or its Affiliates are party. Provided
that the Mortgagee (as hereinafter defined) agrees not to disturb Tenant's occupancy so long as
Tenant complies with all terms and conditions of the Lease, this Lease and Tenant's interest herein
are and shall be subject and subordinate to each and every mortgage, assignment or pledge (each,
a "Mortgage I now existing or made subsequent to the date hereof and which cover any part of
the Premises or the Lease, and to all renewals, modifications, replacements, consolidations and
extensions thereof and to any and all advances made thereunder and the interest thereon. Such
subordination shall be effective automatically and without the need for further documentation, but,
if requested by the holder of any such Mortgage (a "Mortgagee'), Tenant shall, within ten (10)
days of receipt of same, execute, acknowledge and deliver any and all documents and instruments
confirming such subordination of this Lease and Tenant's interest herein as the Mortgagee shall
require, including a subordination, non -disturbance and attornment provision on Mortgagee's
form. In the event that a Mortgagee pursuant to a Mortgage made prior to the delivery of this Lease
shall request that this Lease have priority over such Mortgage, and such Mortgage covers any part
of the Premises, and Landlord consents thereto, this Lease shall have priority over said Mortgage
and all renewals, modifications, replacements, consolidations and extensions thereof and all
advances made thereunder and the interest thereon, and Tenant shall, within ten (10) days of receipt
of same, execute, acknowledge and deliver any and all documents and instruments confirming the
priority of this Lease,
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(b) Attornment. In the event of (i) a transfer of Landlord's interest in the
Premises, (ii) the termination of any underlying lease of premises which include the Premises or
(iii) the purchase of the Premises or Landlord's interest therein in a foreclosure sale or by deed in
lieu of foreclosure under any mortgage or pursuant to a power of sale contained in any mortgage,
then in any of such events Tenant shall, at the request of such Transferee, attorn to and recognize
the Transferee, as "Landlord" under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct Lease between such Person, as "Landlord", and
Tenant, as "Tenant", and such Person shall not be liable for any act or omission of Landlord prior
to such Lease termination or prior to such Person's succession to title, nor be subject to any offset,
defense or counterclaim accruing prior to such Lease termination or prior to such Person's
succession to title, nor be bound by any payment of Basic Rent or additional rent prior to such
Lease termination or prior to such Person's succession to title for more than one month in advance
or by any modification of this Lease or any waiver, compromise, release or discharge of any
obligation of Tenant hereunder unless such modification, waiver, compromise, release or
discharge shall have been specifically consented to in writing by the Landlord under such
underlying lease or the mortgagee under said mortgage, or for return of the security deposit, if any
(unless actually received by such Person). In consideration for such attornment, Tenant shall be
entitled not to be disturbed in its possession of the Premises in accordance with the terms and
conditions of this Lease, so long as no Event of Default occurs hereunder beyond any applicable
notice and cure periods.
(c) Notices to Mortgagees. Tenant shall send to each mortgagee of any
mortgage covering any part of the Premises (of which Tenant has been provided notice) copies of
all notices that Tenant sends to Landlord; such notices to said mortgagee shall be sent concurrently
with the sending of the notices to Landlord and in the same manner as notices are required to be
sent pursuant to Section 8.01 hereof. Tenant will accept performance of any provision of this Lease
by such mortgagee as performance by, and with the same force and effect as though performed by,
Landlord. If any act or omission of Landlord would give Tenant the right, immediately or after
lapse of a period of time, to cancel or terminate this Lease, or to claim a partial or total eviction,
Tenant shall not exercise such right until (i) Tenant gives notice of such act or omission to Landlord
and to each such mortgagee, and (ii) a reasonable period of time for remedying such act or omission
elapses following the time when such mortgagee becomes entitled under such mortgage to remedy
same (which reasonable period shall in no event be less than the period to, which Landlord is
entitled under this Lease or otherwise, after similar notice, to effect such remedy and which
reasonable period shall take into account such time as shall be required to institute and complete
any foreclosure proceedings).
Section 9.15 Lender Protections. Notwithstanding anything to the contrary in this Lease
or any Mortgage, any party that becomes owner of the Premises as a result of (x) foreclosure under
any Mortgage, (y) any other exercise by any Mortgagee of rights and remedies (whether under any
Mortgage or under applicable law, including bankruptcy Iaw) as holder of a Mortgage, or (z)
delivery by Landlord to a Mortgagee (or its designee or nominee) of a deed or other conveyance
of Landlord's interest in the Premises in lieu of any of the foregoing ("Successor Landlord"),
shall not be liable for or bound by any of the following matters:
28
1226110395

2
(a) any right of Tenant to any offset, defense, claim, counterclaim, reduction,
deduction, or abatement against Tenant's payment of rent or performance of Tenant's other
obligations under this Lease, arising (whether under. this Lease or under applicable law) from
Landlord's breach or default under this Lease ("Offset Right") that Tenant may have against
Landlord or any other party that was Landlord under this Lease at any time before the occurrence
of any attornment by Tenant ("Farmer Landlord") relating to any event or occurrence before the
date of attornment, including any claim for damages of any kind whatsoever as the result of any
breach by Former Landlord that occurred before the date of attornment. The foregoing shall not
limit either (x) Tenant's right to exercise against Successor Landlord any Offset Right otherwise
available to Tenant because of events occurring after the date of attornment or (y) Successor
Landlord's obligation to correct any conditions that existed as of the date of attornment and violate
Successor Landlord's obligations as Landlord under this Lease;
(b) any obligation with respect to any security deposited with Former Landlord,
unless such security was actually delivered to Mortgagee;
(c) to commence or complete any initial construction of improvements in the
Premises or any expansion or rehabilitation of existing improvements thereon;
(d) to reconstruct or repair improvements following a fire, casualty or
condemnation;
(e) any offset, defense, claim; counterclaim, reduction; deduction, or abatement
arising from representations and warranties related to Former Landlord;
(f) any modification or amendment of the Lease, or any waiver of the terms of
the Lease, made without Mortgagee's written consent;
(g) any consensual or negotiated surrender, cancellation, or termination of this
Lease, in whole or in part, agreed upon between Landlord and Tenant, unless effected unilaterally
by Tenant pursuant to the express terms of the Lease;
(h) any payment of rent that Tenant may have made to Former Landlord more
than thirty (30) days before the date such rent was first due and payable under the Lease with
respect to any period after the date of attornment other than, and only to the extent that, the Lease
expressly required such a prepayment; and
(i) to pay Tenant any sum(s) that any Former Landlord owed to Tenant unless
such sums, if any, shall have been actually delivered to Mortgagee by way of an assumption of
escrow accounts or otherwise,
Section 9.16 Disclaimer of Purchase Rights. Nothing in this Lease is intended or shall
operate to grant to Tenant any right of first refusal, right of first offer, purchase option, or. similar
right to elect to purchase or acquire the Premises or any portion thereof, and Tenant hereby
expressly waives any and all such rights.
IU6110339 5
29

Section 9.17 Security Deposit. Tenant will deposit or cause to be deposited with
Landlord or Mortgagee, as Landlord shall designate, on or before the date hereof, $175,000, as a
"Security Deposit" for its full and faithful performance of the terms of this Lease, it being
expressly understood that such Security Deposit shall not be considered an advance payment of
any Basic Rent, additional rent or other sums payable under this Lease or a measure of Landlord's
damages in case of an Event of Default, and any interest earned shall remain as an additional
Security Deposit. If Landlord transfers its interest in the Premises during the Term to a Transferee
who assumes Landlord's obligations hereunder and to whom the Security Deposit is transferred,
Landlord may assign the Security Deposit to the Transferee and, thereafter, Landlord shall have
no further liability for the return of such Security Deposit to Tenant.
Section 9.18 Short Form Memorandum of Lease. Upon Landlord's or Tenant's
request, the parties shall record a "short form" Memorandum ofLease identifying the Term granted
to Tenant by this Lease, and any other terms which may be required by applicable Legal
Requirements as a matter of record. Any recording costs associated with the memorandum or short
form of this Lease shall be borne by Tenant. Upon the expiration or earlier termination of this
Lease, Tenant shall promptly execute and deliver to Landlord an Instrument, in recordable form,
wherein Tenant acknowledges the expiration or earlier termination of this Lease. Upon transfer or
conveyance of the Premises by Landlord, Tenant agrees to execute an amendment to the
memorandum indicating the change of Landlord.
Section 9.19 Brokers. Landlord and Tenant mutually represent and warrant to each other
that it dealt with no real estate brokers in the transactions contemplated by this Lease, and that no
brokerage fees, commissions, or other remuneration of any kind are due in connection herewith.
Landlord shall forever indemnify and hold harmless Tenant against and in respect of any and all
claims, losses, liabilities and expenses, including reasonable attorney's fees and court costs, which
Tenant may incur on account of any claim by any broker or agent or other Person on the basis of
any arrangements or agreements made or alleged to have been made by or on behalf of Landlord
in respect to the transactions herein contemplated. Tenant shall forever indemnify and hold
harmless Landlord against and in respect of any and all claims, losses, liabilities and expenses,
including reasonable attorney's fees and court costs, which Landlord may incur on account of any
claim by any broker or agent or other Person on the basis of any arrangements or agreements made
or alleged to have been made by or on behalf of Tenant in respect to the transactions herein
contemplated. The provisions of this Section shall survive expiration or termination of this Lease.
Section 9.20 No Partnership. Nothing herein contained shall be deemed or construed
either by the parties hereto, or by a third party, to create a relationship between the parties of
principal and agent, partnership, or joint venture. None of computation of rent, or any other
provision contained herein,' or any acts of the parties hereto, shall be deemed to create any
relationship between the parties hereto other than the relationship of landlord and tenant.
Section 9.21 No Construction Against Drafter. Each of the parties hereto
acknowledges that it is sophisticated and experienced in transactions of the nature contemplated
hereby and that it has been represented by counsel of its choosing in connection herewith;
accordingly, each party hereto waives to the fullest extent permitted by law the application of any
30
1226110395

law or rule of construction requiring that this Lease be construed or interpreted against the drafting
party or in favor of the non -drafting party.
Section 9.22 Waiver of Trial by Jury. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF TENANT AND LANDLORD (A)
AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE
ARISING OUT OF THIS LEASE OR THE RELATIONSHIP BETWEEN THE PARTIES
AS TENANT AND LANDLORD THAT IS TRIABLE OF RIGHT BY A JURY AND (B)
WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE
EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS
WAVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY TENANT AND
LANDLORD, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF
COMPETENT LEGAL COUNSEL.
Section 9.23 Representations and Warranties of Tenant. To induce Landlord to
execute, deliver and perform its obligations under this Lease, Tenant hereby represents and
warrants to Landlord on and as of the date hereof as follows;
(a) Tenant is duly organized or formed, validly existing, and in good standing
under the laws of the state of its formation and is duly authorized to transact business in under the
laws of the state where the Premises is located.
(b) Tenant has full capacity, right, power and authority to execute, deliver and
perform this Lease and all documents to be executed by Tenant pursuant hereto; all required action
and approvals therefore have been duly taken and obtained, and the individuals signing this Lease
and all other documents executed pursuant hereto on behalf of Tenant are duly authorized to sign
the same on Tenant's behalf and to bind Tenant thereto; and to the best of Tenant's knowledge,
Tenant's execution of and performance under this Lease shall not constitute a breach of any
agreement, understanding, order, judgment or decree, written or oral, to which Tenant is a party,
or to which any part of the Premises may be subject, or by which Tenant may be bound, and to the
best of Tenant's knowledge shall not constitute a violation of any provision of Legal Requirement,
to which Tenant or the Premises are or may become subject; and this Lease and all documents to
be executed pursuant hereto by Tenant are and shall be binding upon and enforceable against
Tenant in accordance with their respective terms.
(c) Tenant is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax
Regulations).
(d) There are no contracts, agreements, leases, licenses, invoices, bills or
understandings of any nature, written or oral, formal or informal to which Tenant is a party or
otherwise bound which Landlord, upon becoming owner of the Premises, will be required to
assume or pay or to which Landlord, as a consequence of entering into this Lease, may become
bound without Landlord's express and prior written consent.
(e) No petition in bankruptcy has been filed by or against Tenant, and there are
no claims, causes of action, proceedings, litigation or investigations pending or, to the best of
31
122611039 5

Tenant's knowledge, threatened against or affecting Tenant or the Premises (including disputes
with governmental authorities, utilities, contractors, adjoining land owners), and no basis known
to Tenant for the same, which, if decided adversely, would affect Tenant's ability to carry out the
transaction contemplated by this Lease or would interfere with or prevent the use of the Premises
for its industrial purposes.
Section 9.24 Construction. As used in this Lease, the phrase "to the best of Tenant's
knowledge" means with respect to any statement following such phrase that to the date hereof no
information has come to the attention of any of Tenant's agents in the normal course of performing
management responsibilities for the Premises, or otherwise, and after reasonable independent
investigation having been made by Tenant or one or more of Tenant's agents, which would cause
any of Tenant's agents to believe that such statement is not true and correct. Tenant shall defend,
indemnify and hold Landlord harmless from and against any and all damage, cost, liability and
expense resulting from any material breach of any of the representations and warranties set forth
in this Lease. As used in this Lease, the words "include", "includes", "including" and other similar
words based on the root "include", are deemed to be followed by the words "without limitation."
Section 9.25 Landlord Waivers. Tenant and certain of its affiliates have entered, and
may from time to time hereafter enter, into financing arrangements with one or more lenders and
secure its obligations and liabilities to such lenders by granting security interests in certain of the
Tenant's personal property, including the Severable Property, and the products and proceeds
thereof. Landlord acknowledges Tenant's right to make such grants and agrees to waive its rights
in such collateral (excluding fixtures and any deposits made pursuant to this Lease) and execute
such waivers as may be requested by such lenders to the extent the same are reasonably acceptable
to Landlord. Specifically but without limitation, Landlord agrees to execute contemporaneously
with its execution of this Lease, the Landlord Waiver attached as Exhibit E by reference.
[Signatures of Landlord and Tenant Follow on Next Pages]
32
122611039_5

IN WITNESS 'WHEREOF, the parties hereto have caused this Lease to be executed as of
the Commencement Date.
LANDLORD:
BNC REAL ESTATE HOLDINGS, LLC,
a North Carolina limited liability company
By: %2us ra
Joseph U. Suhor, III, Trustee of the Joseph
U. Suhor Revocable Trust U_T.A. dated
4/6/1994
Being the sole Member of the
above -named Company.
010M ZI,
THERMOFORM PLASTICS, INC.,
a Minnesota corporation
By:
Name:
Title:
WA 140M65.1

IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of
the Commencement Date.
LANDLORD:
BNC REAL ESTATE HOLDINGS, LLC,
a North Carolina limited liability company
By:
Name:
Title:
TENANT:
THERMOFORM PLASTICS, INC.,
a Minnesota corporation
By: --
Name: - �r.2c� M . �-r.✓sTe�
Title: e�/dam
1226110395

0
EXHIBIT A
LEGAL DESCRIPTION
Lying and being situated in Gaston County, North Carolina and being more particularly described
as follows:
Being all of Lot 1, The Oaks Commerce Center, Phase IV, according to the plat thereof recorded
in Plat Book 56, Page 9 in the Office of the Register of Deeds of Gaston County, North Carolina.
122611039 S

EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes or assessments for the year 2020, and subsequent years, not yet due or payable.
2. Any circumstance affecting the title disclosed by survey entitled "ALTA/NSPS Land
Title Survey Prepared For: Wilbert, Inc." by C. Clark Neilson, P.L.S. of R.B. Pharr &
Associates, P.A., dated October 11, 2019 (the "Survey").
3. Any circumstance affecting the title disclosed by plat recorded in Plat Book 56, page 9,
and as shown on the Survey.
4. Covenants, conditions, restrictions, easements, and liens provided for in instrument(s)
filed for record in Book 2500, page 748, and as shown on the Survey.
5. Easement(s) to Duke Power Company recorded in Book 2071, page 248; Book 2474,
page 213; Book 2474, page 211; Book 2069, page 768.
12261ID39 5

0
f af11:3 9 �[�]
BASIC RENT SCHEDULE
The Basic Rent for the Term shall be as follows:
Lease
Year
Dates
Annual Rent
Monthly Rent
1
December 16, 2019 through November 30, 2020
$419,717.04
$34,976.42
2
December 1, 2020 through November 30, 2021
$428,1 I 1.28
$35,675.94
3
December 1, 2021 through November 30, 2022
$436,673.52
$36,389.46
4
December 1, 2022 through November 30, 2023
$445,407.00
$37,117.25
5
December 1,2023 through November 30, 2024
$454,315.20
$37,859.60
6
December 1,2024 through November 30, 2025
$463,401.48
$38,616.79
7
December 1, 2025 through November 30, 2026
$472,669.44
$39,389.12
8
December 1, 2026 through November 30, 2027
$482,122.92
$40,176.91
9
December 1, 2027 through November 30, 2028
$491,765.40
$40,980.45
10
December 1,2028 through November 30, 2029
$501,600.72
$41,800.06
11
December 1, 2029 through November 30, 2030
$511,632.72
$42,636.06
12
December 1, 2030 through November 30, 2031
$521,965.36
$43,488.78
13
December 1, 2031 through November 30, 2032
$532,302.60
$44,358.55
14
December 1, 2032 through November 30, 2033
$542,948.64
$45,245.72
15
December 1, 2033 through November 3 0, 2034
$553,807.68
$46,150.64
16
December 1,2034 through November 30, 2035
$564,883.80
$47,073.65
17
December 1,2035 through November 30, 2036
$576,181.44
$48,015.12
18
December 1, 2036 through November 30, 2037
$587,705.16
$48,975.43
19
December 1, 2037 through November 30, 2038
$599,459.28
$49,954.94
20
December 1, 2038 through November 30, 2039
$611,448.36
$50,954.03
122611039 5

EXHTBTT D
SEVERABLE PROPERTY
Severable Property shall include all apparatus, personal property, trade fixtures, inventory,
equipment, machinery, fittings, furniture, furnishings, chattel, materials and supplies, which are
owned by Tenant and located on and used in the Premises or related to Tenant's business, including
mainframe computers, removable kitchen equipment and telephone and similar systems and
articles of personal property of every kind and nature whatsoever, and any additions, replacements,
accessions and substitutions thereto or therefor, and all proceeds of all of the foregoing.
Severable Property shall not include the Improvements.
122611039_5

EXHIBIT E
LANDLORD WAIVER
This Landlord Waiver (the "Waiver") is entered into as of 2019 between
BNC Real Estate Holdings, LLC., a North Carolina limited liability company (the "Landlord")
and Bank of America, N.A., as agent (the "Agent") under the Loan Documents described below.
Landlord is the owner of the real property and has the right to lease the real property
commonly known as 1000 Oaks Parkway, Belmont, North Carolina (the "Premises").
Landlord has entered into that certain Lease Agreement (together with any renewals,
extensions, amendments, modifications, substitutions or replacements thereof, the "Lease"), a
copy of which is attached hereto as Exhibit A, with Thermoform Plastics, Inc., a Minnesota
corporation (the "Company"), with respect to the Premises.
The Company and certain of its affiliates have entered, and may from time to time enter,
into a revolving loan and security agreement and other documents (as the same may be amended,
restated, amended and restated, supplemented and otherwise modified from time to time, the "Loan
Documents' } evidencing a financing arrangement with the Agent. The Company has also agreed
to secure its obligations and liabilities under the Loan Documents (the "Obligations"} by granting
a security interest to the Agent, in certain of the Company's property and all products and proceeds
of the foregoing, as more fully described in the Loan Documents, but specifically excluding
Obuilding fixtures such as plumbing, lighting and HVAC systems (the "Collateral').
In order to enter into the Loan Documents, the Agent has required that the Company obtain
this Waiver from the Landlord, and the Landlord hereby agrees and covenants with the Agent as
follows:
FU
1. The Landlord acknowledges that the Lease is in full force and effect and is not
aware of any existing default under the Lease.
2. The Landlord acknowledges the validity of the Agent's lien on the Collateral and,
until such time as the Obligations of Company are indefeasibly paid in full, waives any interest in
the Collateral and agrees not to levy or distrain upon any Collateral or to claim or assert any lien,
right or other claim against any Collateral for any reason.
3. The Landlord agrees to give notice to the Agent of the occurrence of any default by
the Company under the Lease resulting in termination of the Lease (a "Default Notice") and agrees
to permit the Agent to cure any such default within 30 days of the Agent's receipt of such Default
Notice, but the Agent shall not be under any obligation to cure any default by the Company under
the Lease. No action by the Agent pursuant to this Waiver shall be deemed to be an assumption
by the Agent of any obligation under the Lease, and except as expressly provided in paragraphs 6,
7 and 8 below, the Agent shall not have any obligation to the Landlord.
4. The Landlord agrees that the Collateral is and shall remain personal property of the
Company regardless of the manner or mode of attachment of any item of Collateral to the premises
and shall not be deemed to be fixtures.
122611039_5

5. The Landlord agrees that the Collateral may be inspected and evaluated by the
Agent or its designee, without necessity of court order, at any time without payment of any fee.
6. In the event of default by the Company in the payment or performance of the
Obligations or if the Landlord takes possession of the Premises for any reason, including because
of termination of the Company's lease (each a "Disposition Event'j, the Landlord agrees that, at
the Agent's option, the Collateral may remain upon the Premises for a period not to exceed 90
consecutive days (the "Disposition Period") after delivery of the DefaultNotice to Agent; provided
that the Agent pays monthly rent in advance for the period of time the Agent remains on the
Premises, based upon the amount of rent set forth in the Lease. If any injunction or stay is issued
(including an automatic stay due to a bankruptcy proceeding) that prohibits the Agent from
removing the Collateral, commencement of the Disposition Period shall be deferred until such
injunction or stay is lifted or removed.
7. During any Disposition Period, the Agent (a) or its designee may, without necessity
of court order, enter upon the Premises at any time to inspect or remove all or any Collateral from
the Premises without interference by the Landlord, and the Agent or its designee may sell, transfer,
or otherwise dispose of that Collateral free of all liens, claims, demands, rights and interests that
the Landlord may have in that Collateral by law or agreement, including, without limitation, by
public auction or private sale (and the Agent may advertise and conduct such auction or sale at the
Premises, and shall use reasonable efforts to notify the Landlord of its intention to hold any such
auction or sale), in each case, without interference by the Landlord and (b) shall snake the Premises
available for inspection by the Landlord and prospective tenants and shall cooperate in Landlord's
reasonable efforts to re -lease the Premises.
8. The Agent shall promptly repair, at the Agent's expense, or reimburse the Landlord
for any physical damage to the Premises actually caused by the conduct of any auction or sale and
any removal of the Collateral by or through the Agent (ordinary wear and tear excluded). The
Agent shall not (a) be liable to the Landlord for any diminution in value caused by the absence of
any removed Collateral or for any other matter except as specifically set forth herein or (b) have
any duty or obligation to remove or dispose of any Collateral or other property left on the Premises
by the Company.
9. Without affecting the validity of this Waiver, any of the Obligations may be
extended, amended, or otherwise modified without the consent of the Landlord and without giving
notice thereof to the Landlord. This Waiver shall inure to the benefit of the successor and assigns
of the Agent and shall be binding upon the heirs, personal representatives, successors and assigns
of the Landlord. The person signing this Waiver on behalf of the Landlord represents to the Agent
that helshe has the authority to do so on behalf of the Landlord.
10. All notices hereunder shall be in writing and sent by certified mail (return receipt
requested) or overnight mail to the other party at the address set forth on the signature page hereto
or at such other address as such other party shall otherwise designate.
11. This Waiver shall be governed by the laws of the State of North Carolina, without
giving effect to any conflict of law principles (but giving effect to federal laws relating to national
banks). The Landlord hereby consents to the non-exclusive jurisdiction of any federal or state
39
1226LI039 5

01
court sitting in or with jurisdiction over the State of North Carolina, in any proceeding or dispute
relating in any way to this Waiver, and agrees that any such proceeding shall be brought by it
solely in any such court. The Landlord irrevocably waives all claims, objectives and defenses that
it may have regarding such court's personal or subject matter jurisdiction, venue or inconvenient
forum.
12. WAIVER OF SPECIAL DAMAGES. THE LANDLORD WANES, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT THE LANDLORD MAY
HAVE TO CLAIM OR RECOVER FROM THE AGENT IN ANY LEGAL ACTION OR
PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
13. JURY WAIVER. THE LANDLORD AND THE AGENT HEREBY
VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO
THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT TO HAVE A .JURY
PARTICIPATE IN RESOLVING ANY DISPUTE BETWEEN THE LANDLORD AND THE
AGENT IN ANY WAY RELATED TO THIS WAIVER.
14. This Waiver shall continue in full force and affect until the indefeasible payment in
full of all Obligations.
122611039_5
[Signature Pages Follow]
40

C
This Waiver is executed and delivered by the Landlord as of the date first written above,
122611034 5
LANDLORD:
BNC REAL ESTATE HOLDINGS, LLC
By:
Name:
Title:
Notice Address:
BNC Real Estate Holdings, Inc.
108 Buchanan Church Road
Greensboro, NC 28214
Attention: Joe Suhor
AGENT:
BANK OF AMERICA, N.A.
By: _
Name:
Title:
Notice Address:
135 S. LaSalle Street, Suite 925
Chicago, IL 60603
Attention: Portfolio Manager

EXHIBIT C
NORTH CAROLINA SPECIAL WARRANTY DEED
DATED DECEMBER 161 2019
GRANTING 1000 OAKS PARKWAY, BELMONT, NC
TO BNC REAL ESTATE HOLDINGS, LLC
www.wiIbertpiasticservices.com
BELMONT, NC• EASLEY, SC
HARRISBURG, NC + WHITE BEAR LAKE, MN

Page 1 of 3
NOTARY
SEAL PG 3
Type. CONSOLIDATED REAL PROPERTY
Recorded: 12/16/2019 1,47:24 PM
Fee Amt: $11,452.00 Page 1 of 3
Revenue Tax: $11,426.00
Gaston, NC
Susan S. Lockridge Register of Deeds
NORTH CAROLINA SPECIAL WARRANTY DEED
Excise Tax: $11,426.00
Tax Lot No. 218558 _
Verified by
by
Mail after recording to: Grantee
This instrument was prepared by: William N. Barris,
Charlotte, NC 28202
Brief Description for the Index
Parcel
County on the
of
Tryon Street, Suite 3000,
THIS DEED made this — JVZ dXf December, 2019, by and between
GRANTOR
WILBERT, INC., a North olina
corporation `
2001 Oaks Parkway
Belmont, North ft
GRANTEE
BNC REAL ESTATE HOLDINGS,
LLC, a North Carolina limited liability
company
108 Buchanan Church Road
Greensboro, North Carolina 28214
Enter in appropriate bloc'3 party: name, address, and, if appropriate, character ofentity, e.g. corporation or partnership
The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and
assigns, and shall include singular, plural, masculine, feminine or neuter as required by context.
WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of which is
hereby acknowledged, has and by these presents does grant, bargain, sell and convey unto the Grantee in fee
simple, all that certain lot or parcel of land situated in the City of Belmont, Gaston County, North Carolina and
more particularly described as follows:
BEING all of Lot 1, The Oaks Commerce Center, Phase IV, according to the plat thereof recorded In
Plat Book 56, Page 9, in the office of the Register of Deeds of Gaston County, North Carolina (the
"Registry").
submitted electronically by "Gallimore Levy Chrisawn Gallimore PLLC"
124111n compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the Gaston County Register of Deeds.
Book: 5088 Page: 883 Seq: 1

Page 2 of 3
The property hereinabove described was acquired by Grantor by instrument recorded in Book 2915, Page 263
of the Registry. See also Certificate of Corporate Merger and Change of Name recorded at Book 5080,
Page 2050 of the Registry.
All or a portion of the property herein conveyed does not include the primary residence of a Grantor.
A map showing the above -described property is recorded in Map Book 56, Page 9 of the Registry.
TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances thereto
belonging to the Grantee in fee simple.
AND the Grantor covenants with the Grantee, that Grantor has done nothing to impair such title as Grantor
received, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by,
under or through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the following exc ons:
1. The lien of ad valorem real property taxes and asses ents 0 and subsequent years.
2. Any circumstance affecting the title disclose "�rvey .t d "ALTAINSPS Land Title
Survey Prepared for Wilbert, Inc." by C. Clark Neilson, P. of R. arr & Associates, P.A., dated
October 11, 2019.
3. Any circumstance affecting the titW cI.Wed lat recorded in Plat Book 56, Page 9 of the
Registry.
4. Covenants, conditions, res do easeM. nts and liens provided for in instrument(s) filed for
record in Book 2500, Page 748, and as %the Survey, and any related maps, plans, bylaws and other
document(s) and amendment(s).
5. Easements to u e wer C pany recorded in Book 2071, Page 248; Book 2474, Page 2 i 3;
Book 2474, Page 21 l; Book 20 a of the Registry.
6. The L e eemen by and between Grantee and Thermoform Plastics, Inc., a Minnesota
corporation, dated as of m I 6, 2019, as evidenced by a Memorandum of Lease recorded in the Registry
contemporaneous erewit
124113933 4
Book: 5088 Page: 883 Seq:2

Page 3 of 3
IN WITNESS WHEREOF, the Grantor has duly executed the foregoing as of the day and year first
above written.
WILBERT, INC., a North Carolina corporation
By:
Name: chi / Aal�i2�I'
Title: woce* _
STATE OF NORTH CAROLINA
COUNTY OF _ G Q s 4o rl
(Place of Acknowledgment)
I certify that the following persons) personally appeared before ay, acknowledging to
me that he or she signed the foregoing document: !'
m signatory)
124113933_3
Name -
JW
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