EXHIBIT 10.39
GUARANTY
THIS GUARANTY, made this 6th day of February, 2003, by BLUE RHINO
CORPORATION, a Delaware corporation ("Guarantor"), manager of BUFFALO PROPANE,
LLC, a Colorado limited liability company, in favor of BR PARTNERS ONE, LLC, an
Indiana limited liability company ("Landlord").
RECITALS
A. Landlord and BUFFALO PROPANE, LLC, a Colorado limited
liability company ("Tenant") have entered into a lease agreement dated February
6, 2003 (the "Lease") wherein Tenant has leased real estate from Landlord
located in Commerce City, Colorado.
B. As partial consideration for the Lease, Landlord requires that
Guarantor guarantee the full performance of the Lease to be kept and performed
by Tenant, including the payment of all rentals and other charges to accrue
thereunder.
NOW, THEREFORE, Guarantor covenants as follows:
1. GUARANTY. The Guarantor, for itself and its successors and
assigns, guarantees the prompt payment when due, or whenever payment may become
due under the terms of the Lease, of all payments of rent, additional rent,
impositions, and all other charges, expenses and costs of every kind and nature,
which are or may be due now or in the future under the terms of the Lease, any
agreements or documents related to the Lease, or any other transaction between
the Landlord and the Tenant directly or indirectly related to the Lease; and the
complete and timely performance, satisfaction and observance of the terms,
covenants and conditions of the Lease, rules and
regulations and related obligations arising by reason of the Lease, required to
be performed, satisfied or observed by the Tenant.
2. COVERAGE OF GUARANTY. This guaranty extends to any and all
liability which the Tenant has or may have to the Landlord by reason of matters
occurring during the Lease Term (as defined in the Lease) and after the
expiration of the Lease Term by reason of removal of Tenant's property,
surrender of possession or other matters. This guaranty extends to any successor
of the Tenant, any assignee or sublessee of the Tenant, to any extension or
renewals of the Lease Term, and to any term established by reason of the
holdover of the Tenant, an assignee or sublessee, all pursuant to the terms and
conditions of the Lease.
3. PERFORMANCE GUARANTY. In the event that the Tenant fails to
perform, satisfy or observe the terms and conditions of the Lease, rules and
regulations, and related Lease obligations required to be performed, satisfied
or observed by the Tenant, the Guarantor will promptly and fully perform,
satisfy and observe the obligation or obligations in the place of the Tenant.
The Guarantor shall pay, reimburse and indemnify Landlord for any and all
damages, costs, expenses, losses and other liabilities, including reasonable
attorney fees, arising or resulting from the failure of the Tenant to perform,
satisfy or observe any of the terms and conditions of the Lease, rules and
regulations and related obligations.
4. WAIVER OF NOTICES. Without notice to or further assent from
the Guarantor, the Landlord may waive or modify any of the terms or conditions
of the Lease, any rules and regulations or related Tenant obligations; or
compromise, settle or extend the time of payment of any amount due from the
Tenant or the time of performance of any obligation of the Tenant. These actions
may be taken by the Landlord without discharging or otherwise affecting the
obligations of the Guarantor.
5. UNCONDITIONAL OBLIGATIONS. The liability of the Guarantor is
direct, immediate, absolute, continuing, unconditional and unlimited. The
Landlord shall not be required to pursue any remedies it may have against the
Tenant or against any collateral as a condition to enforcement of this guaranty.
Nor shall the Guarantor be discharged or released by reason of the discharge or
release of the Tenant for any reason, including a discharge in Bankruptcy,
receivership or other proceedings, a disaffirmation or rejection of the Lease by
a trustee, custodian, or other representative in Bankruptcy, a stay or other
enforcement restriction, or any other reduction, modification, impairment or
limitation of the liability of the Tenant or any remedy of the Landlord. The
Guarantor assumes all responsibility for being and keeping itself informed of
Tenant's financial condition and assets, and of all other circumstances bearing
upon the risk of nonperformance by Tenant under the Lease. The Guarantor agrees
that Landlord shall have no duty to advise the Guarantor of information known to
it regarding such circumstances or risks.
6. CERTIFICATE OF EXISTENCE. On ten (10) days written notice from
Landlord, Guarantor shall execute a certificate acknowledging and reaffirming
this Guaranty, its continued existence and that it remains binding and in full
force and effect.
7. BINDING EFFECT. This guaranty is binding upon the Guarantor,
its successors and assigns, and is binding upon and shall inure to the benefit
of the Landlord, its successors and assigns. No assignment or delegation by the
Guarantor shall release the Guarantor of its obligations under this guaranty.
The term "Tenant" used in this guaranty includes also the first and any
successive assignee or sublessee of the Tenant.
8. MODIFICATIONS. This guaranty may not be modified orally, but
only by a writing signed by both the Guarantor and the Landlord. Modifications
include any waiver, change, discharge, modification, or termination.
IN WITNESS WHEREOF, the Guarantor has duly signed this guaranty on the
date stated above.
GUARANTOR: BLUE RHINO CORPORATION
By: /s/ Xxxxx Xxxxx
Printed: Xxxxx Xxxxx
Its: VP, Technical Operations
