TERMS AND CONDITIONS OF RENTAL CONTRACT
For good and valuable consideration, you and Ohio High Reach, LLC d/b/a “OHR Rents” (also referred to herein as “OHR,” “Lessor,” “we,” “us” and “our”) agree as follows:
1. As used herein, “P.1” refers to the first page or “face” of this Contract; “Contract” refers to P.1 together with these Terms and Conditions; “Rented Item(s)” or “Item(s)” means the item(s) provided (rented or if specifically set forth on P.1, sold) to you, as identified on P.1 (including any “Instructions” and/or safety devices provided per Section [or “§”] 5 below); “Site” means the address set forth on P.1 where the Item(s) is/are to be delivered and/or used; and “Customer,” “Lessee,” “you” and “your” mean the “Renter,” “Customer,” “Lessee” and/or “Guarantor” (as applicable) identified on P.1.
2. You agree to rent from OHR the Rented Item(s) for the period(s) specified on P.1 (the “Term”), to pay us our stated rental rate(s) (the “Rent”), together with all other charges accruing hereunder, without proration, reduction or setoff, and to remain liable for all loss, theft, injuries and damages of, to, or associated with such Item(s), until all Rented Item(s) is/are returned to and accepted by OHR in the return condition required under this Contract (including § 10). Unless otherwise specifically agreed by OHR, all rental rates are for normal use of the Rented Item(s) on a single-shift basis during the Term, not exceeding 8 hours per 24-hour period for which Rent is charged hereunder (each, a “Rental Day”), 40 hours per 7-Rental Day period, 160 hours per 28-Rental Day period (zero hours for any and all uncharged-for periods), and in accordance with the terms of this Contract. Additional Rent at our highest incremental rate will be charged for late returns and overuse. You will not be entitled to any cancellation right or reduction of Rent or other amounts coming due hereunder to account for time in transit, Act(s) of God, event(s) of force majeure or any other period(s) of nonuse. We have estimated the Rent based on your estimate of the length of the Term (the “Estimated Rent”). Unless otherwise agreed by OHR in writing, you agree: (a) to pay us: (i) the Estimated Rent specified on P.1 in advance of the Term (the “Prepayment”); and (ii) all other amounts coming due hereunder upon demand; and (b) that: (i) we may deduct any amount(s) you owe us from any Prepayment; (ii) no interest will accrue on any Prepayment; (iii) no Prepayment will be deemed a limit of your liability to us; and (iv) all Prepayments are NON-REFUNDABLE. Anything remaining with, in or on any Rented Item(s) upon return will, at our option, be deemed abandoned.
3. If we agree to deliver and/or retrieve any Item(s), you agree to: (a) pay our regular charge(s) therefor, and for all waiting time; (b) be present at the Site at the agreed time(s); and (c) ensure our personnel have full access to the Site. We will not be responsible for delay(s) caused by any acts or omissions of/by you, your agents, employees or contractors, or any other parties, including providers of other equipment or services (“Other Providers”) for which you agree to indemnify, defend, and hold harmless OHR, its agents, employees, and contractors. If you are not present upon delivery or retrieval of any Item(s), you agree to accept the statements of our representatives and/or delivery personnel regarding the same (including status, condition, quality, utility, defects, and quantities of or with respect to the Item(s) and the Site).
4. Except with respect to Rented Items OHR rents from one or more third parties (each, a “TPO”) and then re-rents to you (“Re-Rented Items”), OHR owns and will retain title to all Rented Items at all times. You will have exclusive control over the Rented Item(s) during the Term; subject however, to your obligation to fully and timely comply with this Contract at all times. You SHALL NOT: (a) permit the taking or existence of any lien, claim, security interest or encumbrance on any Rented Item(s); (b) have any title or ownership interest in or with respect to any Rented Item(s); or (c) loan, share, transfer, sublease, store, surrender or assign any Rented Item(s) or this Contract, without our prior written consent (in our sole discretion). OHR may, from time to time, substitute Rented Item(s) and/or sell or assign all or any part of its interests in one or more Rented Item(s) and/or this Contract, in which event, you will attorn to the assignee, who will not be responsible for any pre-existing obligations or liabilities of OHR or any TPO.
5. Upon the earlier of your receipt, or the delivery to the Site, of the Rented Item(s) unless you thereupon reject it/them, you represent, warrant, acknowledge and agree that: (a) each Item: (i) is complete and in good order, condition and repair; (ii) is appropriate for your purposes and in all ways acceptable to you; and (iii) was selected (not based on any recommendation by us), carefully examined, counted and tested by you or your agent(s); and (b) you: (i) have carefully reviewed and fully understand all laws, rules, regulations, training, instructions, user manuals, maintenance requirements, and other information, if any, including all EPA, OSHA, MSHA, ASME, IBC, IFC, IEEE, UL, ASSP, DOT, FMCSA, IFTA, ANSI and other standards, applicable to the Item(s) (collectively, “Instructions”); (ii) will fully comply therewith (including Tier 4, Silica Dust, Ventilation, AWP/MEWP, training and familiarization, cleaning, and site assessment requirements ); (iii) have been made aware of the need to use all applicable personal protective equipment and safety devices (including RESPIRATORY and FALL PROTECTION); (iv) will use each Item only for its intended purpose, in a reasonable and safe manner; (v) will timely give all applicable notice(s) to, and obtain all applicable licenses, authorizations, permits and approvals from, all affected parties, including governmental authorities, utilities, cable companies and the owner(s) of the Site, and ensure that all underground lines, cables and conduits are clearly and properly marked before using any Item(s) to disturb the ground surface (Call 811 and go to www.call811.com at least 3 full working days in advance); (vi) will immediately cease using any Item that is damaged, breaks down, or proves defective (a “Malfunction”); and (vii) will ensure that all others comply with this Contract. You agree to notify: (A) the police and OHR in the event of any theft or accident involving any Rented Item(s); and (B) OHR if any of the above requirements is/are breached or incorrect.
6. NO WARRANTIES. OHR IS NOT THE MANUFACTURER OR DESIGNER OF ANY ITEM(S), ALL OF WHICH ARE PROVIDED “AS-IS.” NEITHER OHR NOR ANY TPO MAKES ANY WARRANTY(IES), EXPRESS OR IMPLIED (INCLUDING ANY AND ALL WARRANTY(IES) OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, FUNCTION, DESIGN, QUALITY, CAPACITY, FREEDOM FROM DEFECTS AND GOOD AND WORKMANLIKE PERFORMANCE, as well as any warranty(ies) arising from course of dealing, course of performance and/or usage of trade) regarding any Item(s) or Service(s) provided by or at the direction of OHR or any TPO, nor does OHR or any TPO make any warranty against INTERFERENCE OR INFRINGEMENT, all of which warranties you hereby waive. NO DESCRIPTIONS, SPECIFICATIONS OR ADVERTISEMENTS CONSTITUTE REPRESENTATIONS OR WARRANTIES BY OHR OR ANY TPO. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF.
7. In the event of a Malfunction (as defined in § 5), you will immediately notify, and return the Malfunctioning Item(s) to, OHR, and provided such Malfunction did not result from or in connection with: (a) any wrongful or negligent act or omission of/by you or anyone you permit to use or otherwise deal with any Rented Item; or (b) your breach of any provision of this Contract, OHR will, at its option: (i) repair the Malfunctioning Item; (ii) provide you with a comparable item; or (iii) solely with respect to the Malfunctioning Item, return the unused portion of the Rent and cancel this Contract. The foregoing remedies are EXCLUSIVE. Neither OHR nor any TPO shall have any other obligation(s) regarding Malfunctions, all of which you waive, together with all incidental, consequential, special, exemplary, and punitive damages.
8. WARNINGS: THE RENTED ITEM(S) CAN BE DANGEROUS AND SHOULD BE SERVICED, MAINTAINED, REPAIRED AND USED WITH EXTREME CARE, ONLY FOR THEIR INTENDED PURPOSE(S), AND ONLY BY PROPERLY QUALIFIED, INSTRUCTED, TRAINED, FAMILIARIZED, AND IF APPLICABLE, LICENSED, ADULT USERS, OPERATORS AND OCCUPANTS. YOU AGREE TO PROVIDE ALL APPLICABLE FAMILIARIZATION, TRAINING, INSTRUCTIONS AND WARNINGS TO ALL SUCH PARTIES, and ensure that each such Item is used, operated and occupied safely and only: (a) for its intended purpose(s); (b) within its rated capacity; (c) unless otherwise specifically agreed by OHR at the Site; and (d) otherwise in full compliance with this Contract, the Instructions and all applicable warranties and insurance policies, at all times.
9. INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, YOU: (A) ASSUME ALL RISK OF PERSONAL AND BODILY INJURY, ILLNESS, PRODUCTS LIABILITY, LOSS, THEFT, PROPERTY DAMAGE, AND CONTAMINATION OF, TO, AND/OR ARISING IN CONNECTION WITH, THE ITEM(S) AND/OR SERVICE(S) REFERENCED IN THIS CONTRACT, INCLUDING ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM AND/OR IN CONNECTION WITH THE SELECTION, PROVISION, INSPECTION, DESIGN, MANUFACTURE, USE, LOADING, UNLOADING, TRANSPORTATION, DEMONSTRATION, INSTALLATION, CLEANING, STORAGE, SERVICING, MAINTENANCE, REPAIR, DELIVERY AND/OR RETRIEVAL OF SUCH ITEM(S) AND/OR SER-VICE(S), WHETHER OR NOT YOUR FAULT (COLLECTIVELY, “RISKS”); (B) RELEASE AND DISCHARGE, AND AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS, OHR, EACH TPO, their respective parents, affiliates and subsidiaries, and their respective owners, shareholders, members, managers, officers, directors, agents, employees, insurers, subrogees, representatives, successors and assigns (each, an “Indemnitee”), for, from and against all such RISKS, as well as all other liabilities, claims, damages, losses, costs and expenses (including attorneys’ fees) arising from and/or in connection with the Item(s), this Contract, our negligence, and/or your breach of any one or more of the terms hereof; and except only as provided in § 7, (C) WAIVE all rights, remedies and defenses available under the Uniform Commercial Code, as well as all direct, indirect, incidental, consequential, general, special, exemplary and punitive damages, against each Indemnitee.
10. You will ensure the Site is reasonably clean, safe, secure and fit for delivery and use of the Item(s), protect, properly maintain and care for each Item at all times, keep each such Item safely and securely stored and locked when not in use, and return each such Item to OHR on time at the end of the Term, complete (with all original batteries, cords, attachments and peripherals), clean and free of contamination (including asbestos, beryllium, silica and pathogens), and otherwise in good order, condition and repair, properly serviced and maintained, and if applicable, full of the appropriate fuel, fluids and lubricants. If you fail to do so, in addition to any other amounts specified on P.1, you will promptly pay to OHR: (a) Rent at our highest incremental rate(s) until all such Item(s) have been returned or replaced as required; and (b) all costs and expenses we may incur in connection with such failure. You shall not, nor shall you permit anyone else to: (i) use any Rented Item while under the influence of any intoxicant(s) (including without limitation, CANNABIS AND ALCOHOL, WHETHER OR NOT LEGAL) or to abuse, misuse, overuse, conceal, store with any third party, repair, modify or damage any Rented Item(s); (ii) violate any Instruction, insurance policy or warranty; (iii) expose any Rented Item(s) to any flammable, explosive, harmful or hazardous substance(s) or circumstance(s); (iv) disable, misuse or circumvent any safety equipment or device(s) in, on or with any Item(s); or (v) take possession of or exercise control over any Rented Item(s), without our prior consent (in our sole and absolute discretion). With respect to rented trailers, you hereby agree to: (a) assume all risk of personal injury and property damage arising in connection with your use of such trailer(s); (b) comply fully with each of the terms of this Contract, as applicable to trailers; (c) carefully inspect all coupling mechanisms, safety chains, doors, latches, tires, brakes, taillights and turning signals before each use; (d) secure and protect all contents and refrain from overloading trailer(s); (e) comply with all laws, rules, regulations, manufacturers’ instructions and policies of insurance; and (f) refrain from placing in trailers any illegal, hazardous, explosive, toxic or dangerous materials. Lessor is not liable for damage to, and you waive all claims arising in connection with, your bumpers or motor vehicle.
11. You agree to maintain all insurance we may require, including: (a) liability insurance with limits of at least $1,000,000 per occurrence; and (b) property damage/inland marine insurance covering all Rented Items for the full (new) replacement cost thereof: (i) naming OHR as an additional insured and loss payee on a closed-clause basis; (ii) waiving subrogation against OHR; (iii) being primary and non-contributory; and (iv) incorporating such other provisions (including deductibles) as we may require. You irrevocably appoint OHR as your agent and attorney-in-fact to submit claims on all such policies.
12. If and only if, we have offered, and you have paid for our OPTIONAL LIMITED DAMAGE WAIVER (“LDW”) (set forth on P.1, if available) in advance of the Term, OHR will waive its claims against you for physical damage to Item(s) covered by LDW (“Covered Item(s)”); EXCEPT THAT you will, remain fully liable for: (a) all loss of and damage to: (i) Covered Item(s) lost or damaged as a result of: (A) your breach of this Contract; (B) theft or other failure to timely return Covered Item(s) to OHR; (C) gross negligence, misuse and/or abuse of Covered Item(s) (including submerging, overturning and overloading); (iii) batteries, keys, glass, tires, tubes, tracks, booms, belts, chains, knobs and hoses; (b) damage during transportation; (c) the lesser of: (i) $1,000; or (ii) 10% of the first $50,000 of repair/replacement costs for Covered Item(s); and (d) repair and replacement costs exceeding $50,000 aggregate across all Covered Item(s). You may decline LDW if you provide the property damage/inland marine insurance referenced in §11. LDW IS NOT INSURANCE OR A WARRANTY.
13. There are no third-party beneficiaries hereto other than the applicable Indemnitees. These Terms and Conditions apply to all Item(s) identified on P.1, and to all other Items you obtain from us (except only as we may otherwise agree). The terms of this Contract are severable. If any provision (t)hereof is deemed invalid or unenforceable by any court or arbitrator of competent jurisdiction, such provision will be deleted, and the remainder (t)hereof will remain valid and enforceable. This Contract, and any pictures, videos and/or addenda we provide, each of which is incorporated herein, represent(s) the entire agreement between you and OHR, superseding all other agreements and representations (including our website and advertising) and cannot otherwise be amended or extended except in a writing signed by OHR. You agree to fully and timely pay all taxes (including sales, use, and other taxes), tolls, fines, and other fees, assessments, and other charges related to each item, including a 2% Environmental Fee. If legal action is commenced in connection herewith, we will be entitled to recover our associated costs and expenses (including without limitation, attorneys’ fees) from you if we prevail. To the maximum extent permitted under applicable law, you grant to OHR a lien on all real and personal property: (a) placed in or on; and/or (b) improved with, any Rented Item(s). We may, without notice or liability to you, monitor and/or inspect, in person and/or electronically (including via Telematics/GPS systems) any Rented Item(s) at any time. You consent thereto and agree that all information thereby obtained will be OHR’s property. If any performance required of OHR shall be delayed, impaired or made more costly as a result of any act or omission of/by you, any Other Provider(s) or any “Act of God,” event of force majeure (including fire, flood, storm, earthquake, tsunami, slide, subsidence, collapse, riot, war, violence or threat thereof, theft, terrorism, cyber-attack, supplier delay, strike, shutdown, power surge or outage, epidemic, pandemic and governmental and regulatory actions) or other events, facts or circumstances beyond our reasonable control, we will be excused from such performance. You waive all statutes of limitations regarding our rights and remedies. All amounts due hereunder but not timely paid will bear interest at the lesser of 18% per annum or the highest rate permitted under applicable law. You authorize us to charge all amounts coming due hereunder to any debit and/or credit card(s) you provide (up to 150% of the new replacement cost of the Item(s)). You agree to pay us the maximum lawful charge for returned checks. Our maximum liability in connection with this Contract is limited to the amount(s) actually paid by you and received by us hereunder for the Item(s) identified on P.1. Neither our exercise, nor our failure or delay in the exercise, of any rights or remedies available in connection herewith will constitute an election of remedies or a waiver of any of our rights or remedies. Time is of the essence. This Contract: (i) is a true operating lease, and not a financing; (ii) is fair and reasonable; and (iii) shall bind and be enforceable by you, OHR, the other Indemnitees and their respective insurers, subrogees, successors and permitted assigns. Digital, electronic, photocopied, and facsimiled signatures and initials appearing on this Contract will be deemed originals.
14. Any item(s) sold to you (“Sale Items”), as provided on P.1 are provided “AS-IS” and “WITH ALL FAULTS,” and are subject to the terms of this Contract (modified to address sales); provided that our obligations under § 7 shall expire and terminate 3 days after the date of purchase. All item(s) not specifically identified as Sale Items on P.1 will be deemed to be “Rented Item(s).”
15. This is a “net” rental. Your duties hereunder are unconditional. If you or any guarantor shall: (a) fail to fully and timely honor, pay, perform or comply with this Contract and/or any of your obligations arising hereunder or in connection herewith; (b) provide any incorrect or misleading information to us; (c) become insolvent; or (d) die or cease conducting business, or if any Rented Item(s) shall be lost or, except to the extent covered by LDW per § 12, damaged, you will be in DEFAULT under this Contract, whereupon, OHR may with or without legal process or notice (and without liability to you or any guarantor), to the maximum extent permitted under applicable law: (i) cancel the Term and/or the subject Contract(s) (and/or your rights to use and possess the Rented Item(s)); (ii) seek relief from stay; (iii) recover, empty, lock, restrict and/or disable any Item(s) without being guilty of breach, trespass or wrongful interference, or liable for any injuries or property damage, including without limitation, any and all damage to crops, flora and/or fauna (for which you will indemnify, defend and hold harmless each Indemnitee); (iv) perform your obligations hereunder on your behalf, without being obligated to do so; (v) purchase replacement Item(s); (vi) recover from you and/or any guarantor our associated damages, losses, costs and expenses (including without limitation, Rent for the entire scheduled Term, overtime, loss of use, interest, attorneys’ fees, repossession costs, and collection costs); and/or (vii) pursue any one or more other rights and/or remedies available in connection (t)herewith, all of which shall be cumulative.
16. This Contract shall be governed by and enforceable under the laws of Ohio. Disputes arising in connection with this Contract shall, at OHR’s option, be submitted to binding ARBITRATION in accordance with the Rules of the American Arbitration Association before a single arbitrator and in a location selected by OHR. Judgment on the arbitrator’s award shall be final and binding and may be entered in any court of competent jurisdiction. Proper venue for all other civil legal actions commenced in connection herewith shall lie solely and exclusively in the federal, state, and local courts located in or nearest to Cuyahoga County, Ohio. You consent and submit thereto and waive all claims that such venue lies in an inconvenient forum. YOU HEREBY WAIVE: (A) YOUR RIGHT(S), IF ANY, TO PARTICIPATE IN ANY CLASS, COLLECTIVE OR OTHER JOINT ACTION AGAINST OHR; AND (B) YOUR RIGHT TO TRIAL BY JURY.
17. WARNING: Under Ohio Revised Code, § 2913 (and specifically, §§ 2913.02, .41 and .72), and their successor provision(s), if you fail to return or pay the amount(s) due for the Item(s) at the agreed upon time, you may be subject to CRIMINAL PROSECUTION for theft and/or ordered to make restitution for the cost of repairing or replacing the Item(s) as well as any other losses (including loss of revenue) incurred by the Lessor.
18. OHR is committed to environmentally safe business practices. In its efforts to promote a clean and sustainable environment, OHR incurs a wide range of expenses (both direct and indirect), including costs for environmentally-friendly facilities, equipment and emission control technologies, as well as EPA-compliant cleaning, decontamination and waste disposal. To offset OHR’s associated costs, OHR charges a 2% Environmental fee on repairs and rentals. This fee is not a government mandated charge or tax (OHR may modify the fee at any time), nor is it earmarked for any particular use. Rather, it is collected as revenue and applied at OHR’s discretion.
WARNING: Under ORC, § 2913 (and specifically, §§ 2913.02, 41 and 72), if you fail to return or pay the amount(s) due for the Rented Item(s) at the agreed upon time(s), you may be subject to CRIMINAL PROSECUTION for theft and/or ordered to make restitution for the cost of repairing.
RE-RENTAL TERMS: COLLATERAL ACCESS AGREEMENT
December 22, 2020
To secure the obligations of OHR Rents (“Company”) owed to Great Rock Capital Partners, LLC (the “Agent”) the Company has granted to Agent a security interest in and to certain of the assets of the Company (the “Collateral”), including, without limitation, all of the Company’s raw materials, work-in-progress inventory and machinery and equipment, which may be located upon the real property (the “Premises”) of the Customer (the “Customer”).
Upon entering into an equipment lease agreement with the Company, the Customer hereby represents, warrants, covenants and agrees as follows:
- The Customer agrees that any Collateral is and shall remain personal property of the Company, subject to Agent’s security interest, and is not and shall not become or be deemed to be fixtures affixed to the Premises. Any Collateral may not be relocated without Agent’s written consent. In the event that any Collateral is deemed to be a fixture to the Premises for any reason, Customer agrees to execute such additional documentation as reasonably requested by Agent in order to properly perfect Agent’s security interest in that certain Collateral and to recognize and acknowledge such Collateral as the property of Company (subject to Agent’s security interest), including, without limitation, reasonably cooperate with the filing of a fixture filing on the Premises. In the event any third party, including a creditor or lender to the Company, by notice to Customer attempts to claim ownership or right in and to any Collateral, Customer agrees to notify Agent and Company in writing of such action or claim to provide Agent and/or Company an opportunity to defend against such claim or action. In the event any Customer seeks to sell or lease the Premises to a third party, Customer shall notify Agent and Company in writing of such action not less than thirty (30) days prior to such action being consummated to provide Agent and/or Company a reasonable opportunity to obtain a landlord waiver or similar agreement with such third party.
- The Customer hereby recognizes Agent’s security interest in and to any Collateral, acknowledges that it has no right or title over any Collateral superior to Agent’s and unconditionally waives and releases in favor of the Agent and any other credit parties: (a) any and all rights of distraint, levy, and execution, however arising, which Customer may now or hereafter have against the Collateral; (b) any and all statutory liens, security interests, or other liens which Customer may now or hereafter have in the Collateral and the proceeds thereof, whether by statute or by virtue of Company’s occupation of space at the Premises at which the Collateral resides; and (c) any and all other interests or claims of every nature whatsoever which Landlord may now or hereafter have in or against the Collateral for any rent, storage charges, or other sums due, or to become due, to Customer by Company. Customer agrees not to exercise any of Customer’s rights, remedies, powers, privileges, or discretions with respect to the Collateral, or liens or security interests in the Collateral, unless and until Customer receives written notice from an officer of the Agent that the Company’s obligations to the Agent and the other credit parties have been paid in full, and that the commitment of each credit party to make loans or furnish other financial accommodations to the Company under any loan agreement has been terminated. The foregoing waiver is for the benefit of the Agent and the other credit parties only and does not affect the obligations of the any Company to any Customer.
- In the event of the exercise by the Agent of its rights upon a default under the any loan agreement with respect to any Collateral, the Agent shall have a reasonable time, but in no event less than one hundred twenty (120) days, in which to repossess and/or dispose of the Collateral from the Premises; provided, however, that such period will be tolled during any period in which the Agent has been stayed from taking action to remove any Collateral in any bankruptcy, insolvency or similar proceeding, and the Agent shall have an additional period of time (but in no event less than one hundred twenty (120) days) thereafter in which to repossess and/or dispose of any Collateral from the Premises.
- In the event Company is threatened with a default, is notified of a pending default or is in default under the lease agreement, or in the event the lease agreement is set to terminate or expire early for any reason, Customer shall give the Agent not less than thirty (30) days’ prior written notice of such action at the address set forth below, and shall provide Agent with access to the Premises so that Agent has a reasonable opportunity to preserve, protect, liquidate, take possession of or remove any Collateral on the Premises and, if the Agent so elects, to cure such breach of or default. Notwithstanding the provisions of this paragraph, the Agent shall not have any obligation to cure any such breach or default. The cure of any such breach or default by the Agent on any one occasion shall not obligate the Agent to cure any other breach or default or to cure such breach or default on any other occasion.
- Company hereby unconditionally and irrevocably authorizes the Customer to grant and allow access by the Agent, or its agents or nominees, to the Premises pursuant to the terms hereof without any duty or obligation to make inquiry of the Agent or to oversee or monitor in any way the activities of the Agent in the Premises. Under this Agreement, the Customer agrees to provide Agent with reasonable assistance and recognizes Agent as attorney-in-fact for the Company and to take all reasonable directions from Agent.
- To the extent not paid or prepaid by the Company, the Agent shall pay the Company’s Customer a sum for its use and occupancy of the Premises on a per diem basis in an amount equal to the monthly base rent required to be paid by a Company under a lease agreement from the date on which the Agent shall have taken possession of the Collateral on the Premises until the date on which the Agent vacates the Premises, it being understood, however, that the Agent shall not, thereby, have assumed any of the obligations of any Company to any Customer, including, without limitation, any obligation to pay any past due rent owing by the Company. No payment by the Agent to any Customer hereunder shall affect any obligation of any Company and its affiliates to reimburse the Agent for any such payment by the Agent pursuant to the terms of any loan agreement.
- The Customer will, upon reasonable prior written notice from the Agent, (a) cooperate with the Agent in gaining access to the Premises and (b) if requested by the Agent, permit the Agent, or its agents or nominees, to dispose of any Collateral on the Premises in a manner reasonably designed to minimize any interference with any of any Landlord’s other tenants at the Premises. The Agent shall promptly repair, at the Agent’s cost and expense, any physical damage to the Premises actually caused by the Agent, but shall not be liable for any diminution in value of the Premises caused by the removal or absence of the Collateral.
- All notices shall be made to the following addresses by recognized overnight courier, by hand delivery or by facsimile transmission:
If to the Agent:
Great Rock Capital Partners Management, LLC, as Agent
c/o Two Sigma Investments, LLC
101 Avenue of the Americas, 17th Floor
New York, NY 10013
Attention: Stuart Armstrong
Email: Armstrong@greatrockcapital.com and firstname.lastname@example.org
Great Rock Capital Partners Management, LLC, as Agent
285 Riverside Avenue
Westport, CT 06880
Attention: Izabel Leal-Ross
with a copy to:
Moore & Van Allen PLLC
100 North Tryon St., Suite 4700
Charlotte, NC 28202
Attention: Kimberly Zirkle, Esq.