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Exhibit 10.12
LEASE OF REAL PROPERTY
BETWEEN
MASSACHUSETTS COLONY CORPORATION
OWNER
AND
ESP LOCK PRODUCTS, INC.
TENANT
From the office of:
Xxx & Xxx
000 Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
(000) 000-0000
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TABLE OF CONTENTS
Page
----
1. Premises...............................................................1
2. Quiet Enjoyment........................................................1
3. Terms..................................................................2
4. Rent...................................................................2
5. Payments of Rent.......................................................2
6. Additions to Rent......................................................3
7. Interest on Delinquent Payments........................................3
8. Taxes and Assessments..................................................3
9. Utilities, Septic Tank.................................................4
10. Compliance with Law....................................................4
11. Maintenance and Repair.................................................5
12. Alterations............................................................5
13. Hazardous Materials....................................................6
14. Use....................................................................6
15. Snow Removal...........................................................6
16. Trash Removal..........................................................7
17. Landscaping and Maintenance of Grounds.................................7
18. Signs..................................................................7
19. Liens..................................................................7
20. Indemnification........................................................7
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21. Condemnation and Casualty..............................................8
22. Insurance.............................................................10
23. Assignment and Subletting.............................................12
24. Estoppel Certificates.................................................12
25. Subordination of Lease to Mortgage....................................12
26. Conditional Limitations; Default Provision............................13
27. Additional Rights of OWNER............................................15
28. Notices, Demands and other Instruments................................16
29. Inspection; Showing Premises..........................................17
30. Surrender.............................................................17
31. Right of First Refusal................................................17
32. Option to Purchase....................................................18
33. Procedure Upon Purchase...............................................18
34. Owner's Consent to Lender's Interest in Tenant's Assets...............19
35. Separability; Binding Effect; Miscellany..............................20
SCHEDULE A - Description of Land....................................Appendix A
SCHEDULE B - Specimen Landlord's Waiver and Consent.................Appendix B
SCHEDULE C - Hazardous Materials, Remediation
and Indemnity Agreement...........................Appendix C
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SUMMARY OF PRINCIPAL PROVISIONS
The following summary of the lease between MASSACHUSETTS COLONY
CORPORATION, with an office c/o Xxxxxxx X. Xxxxxxxxx, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called "OWNER", and ESP LOCK
PRODUCTS, INC. a Delaware Corporation, with a place of business at 000 Xxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, hereinafter called "TENANT", is not
part of the lease. This Summary is qualified in its entirety by the provisions
of the lease.
OWNER: Massachusetts Colony Corporation, with an office c/o Xxxxxxx
X. Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000
TENANT: ESP Lock Products, Inc. a Delaware Corporation, with a place
of business at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000
PREMISES: The approximately 10.2 acres of land and the building thereon
located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
PRIMARY TERM: From 1 June 1993 through 31 May 1998.
EXTENDED TERM: From 1 June 1998 through 31 May 2003 - Option to extend
expires 30 November 1997.
RENT: Fixed Base Rent during the Primary Term is at the rate of
$225,000.00 per year.
Fixed Base Rent during the first year of the Extended Term is
at the rate of $200,000.00 per year.
Fixed Base Rent during each year of the second through fifth
years of the Extended Term shall bear the same relation to
$200,000.00 as the CPI-U for the January that precedes the
lease year bears to the CPI-U for January 1998, subject to the
limitation that the Fixed Base Rent for a particular lease
year shall not be less than the Fixed Base Rent for the prior
lease year nor more that $10,000.00 greater than the Fixed
Base Rent for the prior lease year.
TENANT to pay/perform/purchase real estate taxes, insurance,
utilities, maintenance, non-structural repairs, heat, air
conditioning, electric power, water, sewage, snow removal and
other similar items.
OPTION TO TENANT has an option to purchase the Premises. TENANT also has
PURCHASE, a right of first refusal.
RIGHT OF FIRST
REFUSAL:
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LEASE OF REAL PROPERTY
MASSACHUSETTS COLONY CORPORATION, with an office c/o Xxxxxxx X. Xxxxxxxxx,
000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, (herein, together with its
successors and assigns as lessors herein, called "OWNER"),
AND
ESP CORPORATION, a Delaware business corporation, (herein, together with
any corporation succeeding thereto by consolidation, merger or acquisition of
its assets substantially as an entity, called "TENANT"), soon to have an address
of 000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000,
IN CONSIDERATION OF THE RENTS AND COVENANTS
HEREIN STIPULATED TO BE PAID AND PERFORMED
BY TENANT AND UPON THE TERMS AND CONDITIONS
HEREIN SPECIFIED, OWNER HEREBY LEASES
TO TENANT, AND TENANT HEREBY LEASES
FROM OWNER, THE PREMISES HEREINAFTER DESCRIBED
1. Premises. The leased premises (the Premises) consists of (a) the
approximately 10.2 acres of land described in Schedule A, (b) all buildings and
other improvements now or hereafter located thereon (the Improvements) and (c)
all easements rights and appurtenances relating thereto. The Premises are leased
in their present condition without representation or warranty by OWNER, subject
to the existing state of title, and subject to all applicable legal requirements
now or hereafter in effect. TENANT has examined the Premises and title thereto
and has found the same satisfactory.
2. Quiet Enjoyment. So long as TENANT shall pay all Fixed Base Rent (as
hereinafter defined) and additional rental obligations as the same become due
and shall fully comply with all of the terms of this Lease and fully perform its
obligations hereunder, TENANT shall peacefully and quietly have, hold and enjoy
the Premises for the term hereof, free of any claim or other action by OWNER
(except as provided in this Lease) or anyone claiming by, through or under OWNER
other than the holder of a mortgage which by subordination of this Lease is
superior to this Lease, excepting only the existing mortgage described in
Paragraph 25(b). No failure to comply with the foregoing covenant during the
term hereof shall give TENANT any right while TENANT is occupying the Premises
to cancel or terminate this Lease or xxxxx, reduce or make a deduction from or
offset against the Fixed Base Rent or additional rental obligations or any sum
payable under this Lease, or to fail to perform any other obligation of TENANT
hereunder. Any sale of the Premises by OWNER shall be subject to this Lease and
the rights of TENANT hereunder.
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3. Terms. The Premises are leased for a primary term that commences on 1
June 1993 and terminates on 31 May 1998, (the Primary Term), and unless and
until the term of this Lease shall expire or be terminated pursuant to any
provision hereof, at TENANT'S option, for an Extended Term that commences on 1
June 1998 and terminates on 31 May 2003, (the Extended Term). TENANT shall
exercise its option to extend the term of this Lease for the Extended Term by
giving written notice thereof to OWNER not later than 30 November 1997. This
Lease shall not be subject to termination by OWNER or by TENANT, except as
expressly provided herein.
4. Rent.
During the Primary Term, TENANT shall pay to OWNER, or its assignee,
Fixed Base Rent at the rate of $225,000.00 for each lease year.
During the Extended Term (in the event TENANT elects such an
extension), TENANT shall pay to OWNER, or its assignee, Fixed Base Rent for each
lease year as follows:
(a) The Fixed Base Rent shall be $200,000.00 for the first lease
year of the Extended Term (1 June 1998 through 31 May 1999);
(b) Fixed Base Rent for each lease year during the second through
fifth lease years of the Extended Term (1 June 1999 through 31 May 2003), shall
be that amount which bears the same relationship to $200,000.00 as the Consumer
Price Index for all Urban Consumers (CPI-U) for the January preceding the
commencement of the lease year bears to the CPI-U for January 1998, adjusted to
the nearest multiple of $60.00, provided, however, that the Fixed Base Rent for
a lease year shall not be less than the Fixed Base Rent for the preceding lease
year nor more than $10,000.00 greater than the Fixed Base Rent for the preceding
lease year.
Provided, further, that in the event the CPI-U, or its substitute or
equivalent, ceases to be compiled and published by some agency of the Government
of the United States of America, OWNER and TENANT shall mutually select some
other computation and publication of an index measuring inflation and,
thereafter, use such other computation and publication for purposes of
increasing or decreasing the rent called for herein. In the event OWNER and
TENANT shall be unable to agree on such substitute computation and publication,
they shall request the FIRST JUDGE of the Leominster District Court (in his
non-judicial capacity) to name a qualified individual to select the necessary
replacement computation and publication, with the charges for the services of
such individual to be paid one-half by OWNER and one-half by TENANT.
5. Payments of Rent. All rents shall be paid in equal monthly installments
with the payment for each calendar month to be paid on or before the first day
of the month. Each such payment shall be mailed or delivered to MASSACHUSETTS
COLONY CORPORATION, C/O XXXXXXX X. XXXXXXXXX, 000 XXXXXXX XXXXXX, XXXXXXXXXX,
XXXXXXXXXXXXX 00000, unless and until OWNER shall notify TENANT in writing to
mail or deliver the payments
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to some other entity or individual and/or some other address. Should this Lease
commence other than on the first day of a month, the rent for the month in which
the Lease commences shall be pro rated.
6. Additions to Rent. All amounts which TENANT is required to pay pursuant
to this Lease to OWNER or to others - other than Fixed Base Rent and amounts
payable as liquidated damages pursuant to Paragraph (26) - together with every
fine, penalty, interest and cost which may be added for non-payment or late
payment thereof, shall constitute additional rental obligations. If TENANT shall
fail to pay an additional rental obligation payable to someone other than OWNER,
OWNER shall have the right, after fourteen (14) days' notice to TENANT to pay
the obligation and the amount paid by OWNER shall be an additional rental
obligation due OWNER. OWNER shall have the rights, powers and remedies with
respect to additional rental obligations as are provided herein or by law in the
case of non-payment of Fixed Base Rent.
7. Interest on Delinquent Payments. TENANT shall pay OWNER interest at
that rate which is two (2%) percent over the prevailing prime rate of interest
as reported in the Wall Street Journal on (a) all overdue interest as report
installments of Fixed Base Rent from the due date thereof until paid, and (b)
all overdue additional rental obligations paid by OWNER on behalf of TENANT from
the date of payment by OWNER until repaid by TENANT. Such interest shall be
waived if the Fixed Base Rent or other additional rental obligation is paid in
full (except interest) within ten (10) days of its due date. TENANT shall
perform all its obligations under this Lease at its sole cost and expense, and
shall pay all Fixed Base Rent and additional rental obligations when due,
without notice or demand, except as provided otherwise herein.
8. Taxes and Assessments.
TENANT shall pay, in addition to the Fixed Base Rent:
(a) all taxes, assessments, levies, fees, water and sewer rents and
charges, all other governmental charges, general and special, excluding only
income taxes and franchise taxes based on OWNER'S income, which are imposed or
levied upon or assessed against the Premises at any time (including after
termination of this Lease) on account of any event or a period of time that
occurred, in whole or in part, after the commencement of this Lease and before
the termination of this Lease. TENANT'S obligations to pay such charges shall be
pro-rated if the charge is based on an event or a period of time which occurred
partly before or after the commencement of this Lease or partly before or after
the termination of this Lease and any holding over;
To provide OWNER with the funds required to pay the taxes
assessed on the Premises, TENANT shall pay to OWNER on or before the first day
of each month, an amount equal to eight (8%) percent of the amount of such tax
for the prior fiscal year of the City of Leominster (1 July through the
following 30 June). OWNER shall deposit such payments in a special interest
bearing savings account registered in OWNER'S name and shall use all funds so
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deposited and the interest earned thereon solely to pay such real property taxes
when and as they become due and, in the event the funds in such special account
shall be less than such taxes paid, TENANT shall promptly pay the amount of the
shortage to OWNER, upon OWNER demanding the same and providing evidence of the
same. Conversely, if the funds in the special account shall be more than
required to pay such real property taxes, OWNER shall promptly remit the excess
to TENANT at the end of the Municipal Fiscal Year in question.
(b) all premiums for the insurance required by Paragraph 22 hereof.
TENANT shall pay, when due, directly to the entity entitled thereto,
all charges for expenses (in addition to the real property taxes) for which it
is responsible under the provisions of this paragraph, and will furnish OWNER
with proof that it has done so, within ten (10) days after receiving a written
request for such proof from the OWNER.
9. Utilities, Septic Tank. TENANT shall pay all charges for utilities
serving the Premises and for fuel used to heat the Premises. Any utility charges
or fuel charges which TENANT does not pay and which OWNER pays (i) to prevent
damage to the Premises (such as paying electrical power and fuel charges to
maintain sufficient heat in the Premises during the winter to prevent the
freezing of water pipes) or (ii) to prevent a lien attaching to OWNER'S property
(such as a lien for water charges) or (iii) to release such a lien, shall
constitute additional rental obligations.
A septic system is part of the sanitary sewage disposal system that
serves the Improvements. TENANT shall, at its expense, clean out the system's
septic tank annually.
10. Compliance with Law.
(a) TENANT shall comply with and cause the Premises to comply with:
(i) all legal requirements applicable to the Premises or the
use thereof; and
(ii) all contracts (including insurance policies), agreements
and restrictions applicable to the Premises or the
occupancy or use thereof.
(b) TENANT will obtain and keep in full force and effect whatever
governmental or regulatory approvals, consents, authorizations and/or licenses,
if any, which may be required by TENANT or OWNER or any other party having an
interest in the Premises in connection with the Premises or the use thereof.
(c) OWNER represents and warrants that as of 1 June 1993 the
Premises may be lawfully used for the purposes for which they were used during
May 1993 and that the
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Premises are in compliance with all applicable laws, rules, regulations and
ordinances of all federal, state and municipal government authorities, including
but not limited to, zoning, building, health, safety, and laws concerning access
by handicapped and disabled persons.
11. Maintenance and Repair.
(a) TENANT will, at its expense, maintain the Premises in good
repair and condition, except for ordinary wear and tear. The word "Premises" as
used in this paragraph includes (but is not limited to) interior walls, wall
coverings, ceilings, lights, door frames, doors, windows, window glass, window
frames, floor coverings - all electrical, plumbing, heating and air
conditioning, wires, pipes, apparatus, equipment, machinery and fixtures in or
on the Premises exterior surfaces, street entrances, parking lots, driveways,
fences, exterior lighting facilities, and landscaping. TENANT shall cause all
electrical, plumbing, heating, and air conditioning maintenance and repair work
to be performed only by duly licensed, qualified service people. TENANT will
make all foreseen and unforeseen, ordinary and extraordinary, changes and
repairs which may be required to keep the Premises in good repair and condition.
(b) OWNER shall, at its expense, make all required structural (by
way of example - exterior walls, foundation, beam, members, columns and
sub-floor) repairs but shall not otherwise be required to maintain or repair the
Premises. OWNER may from time to time, and with a minimum of interference to the
TENANT, enter the Premises in order to make repairs required of it hereunder.
After making any such repairs or replacements, OWNER will, at its expense,
restore the Premises to their condition prior thereto.
(c) The roof of the building of which the Premises are a part was
installed by an authorized installer of a national company or organization (the
Roofing Company) and was warranted against leaks by the Roofing Company. If the
roof develops a leak, TENANT shall notify OWNER and OWNER shall notify the
Roofing Company's representative to repair the roof as promised in the warranty,
if the Roofing Company does not repair the roof within a reasonable time, OWNER
will repair the roof at its sole expense.
12. Alterations. TENANT may, at its expense, alter the interior of the
Premises, provided (i) the market value of the Premises shall not be materially
lessened thereby, (ii) with reference to alterations that will cost in excess of
$25,000.00, TENANT has submitted plans and specifications for the alterations to
OWNER and obtained OWNER'S approval of the alterations prior to the commencement
of work, which approval OWNER will not unreasonably withhold or delay, (iii)
TENANT has provided builder's risk insurance acceptable to OWNER, (iv) the
alterations are expeditiously completed in a good and workmanlike manner and in
compliance with all applicable legal requirements and the requirements of any
insurance policy required to be maintained hereunder, (v) no Improvements shall
be demolished unless TENANT shall have first furnished OWNER with such surety
bonds or other security acceptable to OWNER as shall be necessary to assure
completion of the alterations and (vi) the Premises will not be changed from a
building suitable for use as a general purpose industrial building.
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No work shall be performed involving - and no object shall be
attached to or pass through - the structural components of the Premises
(exterior walls, foundation, beam, member, column, and sub-floor) or the roof -
and no exterior alterations shall be made without OWNER'S prior written
approval, which approval OWNER will not unreasonably withhold or delay. (OWNER
agrees to the installation of exterior signs as authorized in Paragraph 18.)
All alterations shall be at TENANT'S expense and shall be in quality
at least equal to the present construction. TENANT shall not permit any
mechanics' liens, or similar liens, to be placed on the Premises for labor and
material furnished to TENANT or claimed to have been furnished to TENANT in
connection with work of any character performed or claimed to have been
performed at the direction of TENANT and shall cause any such lien to be
released of record within a reasonable time and without cost to OWNER.
Any alterations or improvements made by TENANT, which are, or become
a fixture, shall - unless OWNER agrees in writing to the contrary - become the
property of OWNER at the termination of occupancy, unless TENANT is notified by
OWNER prior to the termination of this Lease to remove said alterations or
improvements.
13. Hazardous Materials. OWNER and TENANT have this day signed a Hazardous
Materials Remediation and Indemnity Agreement ("Remediation Agreement"). A copy
of the Remediation Agreement is attached hereto as Appendix C. The Remediation
Agreement is, by reference, made part of this Lease as fully as though all of
its provisions appeared in this Lease. With reference to matters covered by the
Remediation Agreement, to the extent any provision of the Remediation Agreement
is contrary to any provision of this Lease, the Remediation Agreement shall
control. TENANT shall have the right (in addition to any other remedy that may
be available hereunder or at law or in equity) to set off against TENANT'S
rental obligations hereunder, any losses or other sums for which it is entitled
to indemnification pursuant to this Agreement.
14. Use. TENANT (and all sub-lessees) shall use the Premises only for the
manufacture and distribution of locks, keys and related goods and related office
use. No activity shall be conducted in the Premises or use made thereof which
will be unlawful, improper, noisy or offensive, Or contrary to any law or any
municipal ordinance or by-law in force in the City of Leominster.
TENANT shall not permit any use of the Premises which will make
voidable any insurance on the Premises, or on the contents of the Premises, or
which shall be contrary to any law or regulation from time to time established
by the New England Fire Insurance Rating Association or any similar body
succeeding to its powers.
15. Snow Removal. TENANT shall, with reasonable promptness, remove snow
and ice from the entrances, walkways, driveways and parking areas and keep the
same free of snow and ice.
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16. Trash Removal. TENANT shall remove all its trash and solid waste.
TENANT may locate a commercial-type trash container at a suitable place on the
Premises. TENANT shall keep the doorways, walkways, driveways, parking areas and
grounds free and clear of trash and debris.
17. Landscaping and Maintenance of Grounds. TENANT shall maintain and keep
in good condition the parking lots and landscaping located on the Premises.
TENANT shall keep the same reasonably clean and tidy.
18. Signs. TENANT may, at its expense, install such signs as TENANT
desires on and about the Premises, subject to the limitation that permanent
exterior signs must be installed by a commercial sign company in accordance with
good construction practices.
19. Liens. TENANT will promptly remove and discharge any charge, lien,
padlocking, security interest or encumbrance upon the Premises or any Fixed Base
Rent, additional rental obligations or other sum payable hereunder which arises
for any reason, including all liens which arise out of the TENANT'S use or
occupancy of the Premises or by reason of labor or materials furnished or
claimed to have been furnished to TENANT, or by reason of taxes owed by TENANT,
or imposed by Chapter 21E of the Massachusetts General Laws or 42 United States
Code, Sections 9601 et. seq. (except as provided otherwise in the Remediation
Agreement) but not including any mortgage, charge, lien, padlocking, security
interest or encumbrance created by - or attributable to OWNER. The obligations
of this Paragraph shall survive termination of this Lease for two years (except
as provided otherwise in the Remediation Agreement).
20. Indemnification. In case of any claim against OWNER by any third party
or any liability on the part of OWNER to any third party, TENANT shall pay, and
shall protect, indemnify and save harmless OWNER from and against, 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:
(a) injury to or death of any person, or damage to or loss of
property, on the Premises, or immediately adjacent to the Premises, caused by
the use, or occupancy of the Premises, or caused by a condition of the Premises
that TENANT is obligated to maintain in good condition by Paragraph 11(a) of
this Lease;
(b) any failure on the part of TENANT to perform or comply with any
of the terms of this Lease; or
(c) any act of negligence of TENANT or any person for whose conduct
TENANT is legally responsible.
The obligations of this Paragraph shall survive termination of this
Lease for two years.
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In case of any claim against TENANT by any third party or any
liability on the part of TENANT to any third party, OWNER shall pay, and shall
protect, indemnify and save harmless TENANT from and against, 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:
(d) injury to or death of any person, or damage to or loss of
property, on the Premises, or immediately adjacent to the Premises, caused by a
condition of the Premises that OWNER is obligated to maintain and repair by
Paragraphs 11(b) and 11(c) of this Lease;
(e) any failure on the part of OWNER to perform or comply with any
of the terms of this Lease; or
(f) any act of negligence of OWNER or any person for whose conduct
OWNER is legally responsible.
The obligations of this Paragraph shall survive termination of this
Lease for two years.
21. Condemnation and Casualty.
(a) TENANT shall promptly notify OWNER and OWNER shall promptly
notify TENANT:
(i) if the Premises are damaged or destroyed by fire or other
casualty;
or
(ii) if the use, occupancy or title of the Premises or any
part thereof is or may be taken, requisitioned or sold in, by or on account of
any actual or threatened eminent domain proceeding, other action by any person
having the power of eminent domain or any claim of or eviction by paramount
title.
OWNER shall have the right to require TENANT to reasonably
assist OWNER in any proceeding or action (but at no cost to TENANT) to collect
any award, compensation or insurance payment to which OWNER may become entitled
by reason of OWNER'S interest in the Premises, and to assist OWNER to negotiate,
prosecute and adjust any claim for any award, compensation or insurance payment
on account of any such damage, destruction, taking, requisition, sale, or claim
of or eviction by paramount title. Both OWNER and TENANT shall be entitled and
do not forfeit their respective rights to participate in any such proceedings,
action, negotiation, prosecution or adjustment by the exercise of the rights set
forth in the preceding sentences. TENANT may make its own claim for trade
fixtures, lease hold improvements and moving expenses.
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(b) If an occurrence of the character referred to in Paragraph 21(a)
hereof shall:
(i) be such that the Premises cannot be substantially restored
by OWNER within ninety (90) days after notice of such damage, destruction or
condemnation, or
if such damage, destruction or condemnation occurred
during the last three (3) months of the Primary Term and TENANT has not given
notice of TENANT'S election to extend this Lease for the Extended Term, or
such damage, destruction or condemnation occurred during
the last three (3) months of the Extended Term,
TENANT shall have the option within thirty (30) days aft
the occurrence of an occurrence of the character referred in Paragraph 21(a), to
deliver to OWNER notice of TENANT'S intention to terminate this Lease on a day
specified by TENANT (the Termination Date) which day shall be within thirty (30)
days after delivery of such notice.
(ii) be such that the cost of substantially restoring the
Premise shall exceed twenty-five (25%) percent of the value of the Premises
before such damage, destruction or condemnation, or
if such damage, destruction or condemnation occurred
during the last three (3) months of the Primary Term and TENANT has not given
notice of TENANT'S election to extend this Lease for the Extended Term, or
such damage, destruction or condemnation occurred during
the last three (3) months of the Extended Term,
OWNER shall have the option within thirty (30) days
after the occurrence of an occurrence of the character described in Paragraph
21(a), to deliver to TENANT notice of OWNER'S intention to terminate this Lease
on a day to be specified by TENANT (the Termination Date) which day shall be
within thirty (30) days after delivery of such notice, and if TENANT fails to
specify the Termination Date, the Termination Date shall be the thirtieth (30th)
day after delivery of such notice to TENANT.
(c) if, after an occurrence of the character referred to in
Paragraph 21(a), this Lease is not terminated under Paragraph 21(b), then this
Lease shall continue in full force and effect, and OWNER shall commence the
restoration or repair of the Premises and shall substantially complete such
restoration or repair with reasonable diligence, provided, however, OWNER shall
not be obligated to commence any restoration or repair work costing in total in
excess of $100,000.00 until after either:
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(i) OWNER shall have collected an award, compensation or
insurance payment on account of such occurrence which equals or exceeds that sum
of money which is $100,000.00 less than the total cost of such restoration or
repair work, or
(ii) the holder of any mortgage on the Premises has collected
an award, compensation or insurance payment on account of such occurrence which
equals or exceeds that sum of money which is $100,000.00 less than the total
cost of such restoration or replacement work and such mortgagee has made the
amount so collected available to OWNER for such restoration or replacement work.
Should OWNER fail to commence the restoration or repair of the
Premises within thirty (30) days after an occurrence of the character referred
to in Paragraph 21(a), or should OWNER fail to substantially complete such
restoration or repair work with reasonable diligence, TENANT shall have the
option while the restoration or repair work remains substantially not completed,
to (A) do the work at OWNER'S expense, with the right to off set against future
rent payments the cost of such work paid by TENANT, or (B) cancel this Lease.
(d) If an occurrence of the character referred to in Paragraph 21(a)
deprives TENANT of full use of the Premises, whether or not insured against, and
the occurrence was not caused by TENANT, its agents or employees, TENANT'S
obligation to pay Fixed Base Rent (Paragraph 41), additional rental obligations
(Paragraph 6) and, real estate taxes and other payments (Paragraph 8) shall be
reduced month by month while the effects of such damage, destruction or
condemnation continue by the fractional reduction in rental value of the
Premises during each such month attributable to such damage, destruction or
condemnation.
(e) In the event this Lease is terminated by either OWNER or TENANT
under the provisions of Paragraphs 21(b) or 21(c), the term of this Lease and
the estate hereby granted shall expire as of the Termination 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 of this Lease, except with respect to obligations
and liabilities of TENANT hereunder, actual or contingent, which have arisen on
or prior to the Termination Date. TENANT'S obligation to pay Fixed Base Rent,
additional rental obligations and other sums payable under this Lease shall be
pro-rated as of the Termination Date.
22. Insurance.
(a) TENANT will maintain or cause to be maintained, insurance on the
Premises of the following character:
(i) Insurance against loss by fire, lightening and other risks
from time to time included under "extended coverage" policies, in amounts not
less than the actual replacement value of the Improvements, exclusive of
foundations, excavations, landscaping, paving and similar non-insurable
improvements, insuring as a named insured OWNER and every holder of a Mortgage
on the Premises to the extent of its interest. So long as no event of default
- 10 -
15
shall have occurred and be continuing, said policies may include deductibles not
to exceed $5,000.00 for any single loss. TENANT shall reimburse OWNER for any
loss sustained by OWNER because of a deductible.
(ii) General public liability insurance insuring OWNER and
TENANT against claims for bodily injury, death or property damage occurring on,
in or about the Premises and adjoining parking lots and walkways, in the minimum
amounts of $1,000,000.00 for bodily injury or death to any one person,
$1,000,000.00 for any one accident, and $500,000.00 for property damage.
(iii) Xxxxxxx'x compensation insurance to the extent required
by the law of The Commonwealth of Massachusetts.
Such insurance shall be written by companies of nationally
recognized financial standing, having an A.M. Best rating of A or better and in
a financial category of 10 or better, legally qualified to issue such insurance.
(b) Every such policy (other than any general public liability or
xxxxxxx'x compensation policy) shall bear a mortgagee endorsement in favor of
any Mortgagee holding a mortgage on the Premises, and any loss under such policy
shall be payable to the Mortgagee to the extent of its interest. Every policy
referred to Paragraph 22(a) hereof shall provide that it will not be cancelled
except after thirty (30) days' written notice to OWNER and, if applicable, the
Mortgagee and that it shall not be invalidated by any act or negligence of OWNER
or TENANT, nor by occupancy of the Premises for purposes more hazardous than
permitted by such policy, nor by any foreclosure or other proceedings relating
to the Premises, nor by change in title to the Premises.
(c) TENANT hereby waives to the extent permitted by its insurance
policies, and shall attempt to cause its insurance carriers to waive in writing,
all causes and rights of recovery against OWNER, OWNER'S agents, officers and
employees for any loss occurring to property placed on the Premises by TENANT,
regardless of cause or origin, including OWNER'S negligence, and the negligence
of his agents, officers and employees.
(d) TENANT shall deliver to OWNER original or duplicate policies or
certificates of insurers, evidencing the existence of all insurance which is
required to be maintained by TENANT hereunder, such delivery to be made:
(i) prior to the commencement date of this Lease; and
(ii) within thirty (30) days prior to the expiration of any
such insurance.
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16
Any insurance required hereunder may be provided under blanket
policies which comply with the provisions hereof and specify the coverage and
amount thereof with respect to the Premises.
23. Assignment and Subletting. Subject to OWNER'S prior written approval
which shall not be unreasonably withheld or delayed, TENANT may sublet all or
any part of the Premises or assign its interests hereunder, provided that each
sub-lease shall expressly be made subject to the provisions hereof. No such
assignment or sub-lease shall modify or limit any right or power of OWNER
hereunder or affect or reduce any obligation of TENANT hereunder, and all such
obligations shall continue in full effect as obligations of a principal and not
of a guarantor or surety, as though no assignment or subletting had been made.
Neither this Lease nor the term hereby demised shall be mortgaged by TENANT, nor
shall TENANT mortgage or pledge its interest in any sub-lease of the Premises or
the rentals payable thereunder. Any such mortgage or pledge, and any sub-lease
or assignment made otherwise than as permitted by this Paragraph 23 shall be
void.
24. Estoppel Certificates. TENANT will, from time to time, upon twenty
(20) days' prior request by OWNER, execute, acknowledge and deliver to OWNER a
certificate of TENANT stating that this Lease is unmodified and in full effect
(or, if there have been modifications, that this Lease is in full effect as
modified, and setting forth such modifications) and the dates to which Fixed
Base Rent, additional rental obligations and other sums payable hereunder have
been paid, and either stating that to the knowledge of the signer of such
certificate no default exists hereunder or specifying each such default of which
the signer has knowledge. Any such certificate may be relied upon by any
prospective mortgagee or purchaser of the Premises.
25. Subordination of Lease to Mortgage.
(a) This Lease shall be subordinated to any mortgage hereafter
granted on the property of which the Premises are a part, or the Premises or any
part of the Premises as though the mortgage had been executed, delivered and
recorded prior to the execution and delivery of this Lease if, and only if, the
mortgagee executes and delivers to TENANT as reasonable agreement that in the
event of an entry by the mortgagee to foreclose the mortgage, or in the event of
a foreclosure of the mortgage by entry or by sale, the mortgagee, and any person
claiming through or under the mortgagee, including a purchaser at a foreclosure
sale, (a) shall not disturb TENANT'S possession under this Lease so long as
TENANT substantially complies with the terms of this Lease, and (b) will permit
TENANT to remove property as provided in Paragraph 30. "Mortgage" as used herein
includes any modification, consolidation, extension, renewal, replacement or
substitution of any existing or subsequent mortgage on the Premises. The
provisions of this Paragraph 25(a) are self-operative. No instrument of
subordination shall be necessary to effectuate the subordination. TENANT agrees,
however, to execute and deliver any appropriate instrument OWNER requests to
confirm the subordination of this Lease to any such mortgage.
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17
(b) The Premises are currently subject to the mortgage Massachusetts
Colony Corporation granted to Leominster Savings Bank on 3 November 1976,
recorded in the Worcester Northern District Registry of Deeds (in Fitchburg,
Massachusetts) in Book 1169, Page 557. The Premises are not subject to any other
mortgage. OWNER shall timely pay all its obligations under the loan secured by
said mortgage and under said mortgage as they become due. Should OWNER fail to
do so, TENANT may pay such obligations that are past due and set off the amount
TENANT pays against TENANT'S rental obligations hereunder. OWNER represents that
as of 1 June 1993 the balance due on the loan secured by said mortgage was
approximately $147,346.24. OWNER shall use reasonable due diligence to obtain a
Non-Disturbance Agreement from the present holder of such mortgage with
reference to TENANT'S right to occupy under this Lease.
(c) Notwithstanding anything herein to the contrary, TENANT agrees
at the written request of any party purchasing the Premises at a foreclosure
sale to accept such party as OWNER under this Lease and to observe the
obligations imposed on TENANT by this Lease, provided that such party recognizes
the rights of TENANT under this Lease and agrees to observe OWNER'S obligations
under this Lease, in which event this Lease shall remain in full force and
effect. TENANT agrees to execute and deliver any appropriate instruments
necessary to reasonably carry out the agreements contained in this Paragraph.
26. Conditional Limitations; Default Provision.
(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 Fixed Base Rent, additional rental
obligations referred to in Paragraph 6 hereof or other sum required to be paid
by TENANT hereunder and such failure shall continue for ten (10) days after
notice to TENANT of such failure; or
(2) fail to observe or perform any other provision
hereof and such failure shall continue for thirty (30) days after notice to
TENANT of such failure (provided, that, in the case of any such default 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 default may be cured shall be extended for such period as is
necessary to complete the curing thereof with diligence); or
(ii) if TENANT shall file a petition commencing a voluntary
case under any federal bankruptcy or similar law, federal or state, or for
reorganization or an arrangement pursuant to any bankruptcy law, insolvency or
any similar law, federal or state, or shall be adjudicated a debtor or bankrupt
under any bankruptcy, insolvency or any similar law, federal or
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18
state, or become insolvent, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts generally as
they become due, or if a petition commencing an involuntary case against TENANT
or answer proposing the adjudication of TENANT as a debtor or bankrupt or its
reorganization pursuant to any federal or state bankruptcy law or any similar
law shall be filed in any court and TENANT shall consent to or acquiesce in the
filing thereof or such petition or answer shall not be dismissed, discharged or
denied within ninety (90) days after the filing thereof; or
(iii) if a custodian, receiver , trustee, United States
Trustee or liquidator of TENANT or of all or substantially all of the assets of
TENANT or of the Premises or TENANT'S estate therein shaft be appointed in any
proceeding brought by TENANT, or if any such custodian, receiver, trustee,
United States Trustee or liquidator 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 in
writing; or
(iv) if the Premises shall have been left unoccupied and,
wholly unattended for a period of thirty (30) consecutive days.
(b) If an event of default shall have happened and be continuing,
OWNER shall have the right to give TENANT notice of OWNER'S intention to
terminate the term of this Lease on a date not less than ten (10) days after the
date of such notice. Upon the giving of such notice, the term of this Lease 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 of this Lease, 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,
OWNER shall have the immediate right, whether or not the term of this Lease
shall have been terminated pursuant to Paragraph 26(b) hereof, to re-enter and
repossess the Premises by summary proceedings, ejectment or in any other manner
permitted by law and the right to remove all persons and property therefrom.
OWNER shall be under no liability by reason of any such re-entry, repossession
or removal, except for gross negligence or willful misconduct. No such re-entry
or repossession of the Premises shall be construed as an election by OWNER to
terminate the term of this Lease unless a notice of such intention is given to
TENANT pursuant to Paragraph 26(b) hereof, or unless such termination is decreed
by a court of competent jurisdiction.
(d) After the re-entry or repossession of the Premises pursuant to
Paragraph 26(c) hereof, whether or not the term of this Lease shall have been
terminated pursuant to Paragraph 26(b) hereof, OWNER shall make best effort to
relet the Premises for the account of TENANT in the name of TENANT or OWNER or
otherwise, with notice to TENANT, for such commercially reasonable term or terms
and on such conditions and for such uses as OWNER, in its reasonable discretion,
may determine. OWNER may collect and receive any rents payable by
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19
reason of such reletting. OWNER shall not be liable for any failure to relet the
Premises (after making best efforts to relet) or for any failure to collect
(after making best efforts to collect) any rent due upon any such reletting.
(e) No expiration or termination of the term of this Lease pursuant
to Paragraph 26(b) hereof, by operation of law or otherwise, and no re-entry or
repossession of the Premises pursuant to Paragraph 26(c) hereof or otherwise,
and no reletting of the Premises pursuant to Paragraph 26(d) hereof or
otherwise, shall relieve TENANT of its liabilities and obligations hereunder,
all of which shall survive such expiration, termination, re-entry, repossession
or reletting.
(f) In the event of any expiration or termination of the term of
this Lease or re-entry or repossession of the Premises by reason of the
occurrence of any event of default, TENANT will pay to OWNER all Fixed Base
Rent, additional rental obligations and other sums required to be paid by TENANT
to and including the date of such expiration, termination, re-entry or
repossession, including any reasonable Attorneys' fees and expenses incurred in
connection with such expiration, termination, re-entry or repossession; and,
thereafter, TENANT shall, until the end of what would have been the term of this
Lease in the absence of such expiration, terminations, re-entry, or
repossession, and whether or not the Premises shall have been relet, be liable
to OWNER for, and shall pay to OWNER, as liquidated and agreed current damages:
(i) all Fixed Base Rent, additional rental obligations and
other sums which would be payable under this Lease by TENANT in the absence of
such expiration, termination, re-entry, or repossession, including any
reasonable Attorneys' fees and expenses incurred in connection with such
expiration, termination, re-entry, or repossession, less;
(ii) the net proceeds, if any, of any reletting effected for
the account of TENANT pursuant to Paragraph 28(d) hereof, after deducting from
such proceeds all OWNER'S reasonable expenses in connection with such reletting
(including all reasonable repossession costs, brokerage commissions, reasonable
Attorneys' fees and expenses, reasonable employees' expenses, reasonable
alteration costs and reasonable expenses of preparation for such reletting).
TENANT will pay such current damages on the days on which Fixed Base
Rent would be payable under this Lease in the absence of such expiration,
termination, re-entry, or repossession, and OWNER shall be entitled to recover
the same from TENANT on each such day.
27. Additional Rights of OWNER.
(a) 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 under law or in equity. Failure to
insist upon the strict performance of any
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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 OWNER of any Fixed Base Rent, additional rental obligations or other
sums payable hereunder with knowledge of the breach of any provision hereof
shall not constitute a waiver of such breach, and no waiver by OWNER of any
provision hereof shall be deemed to have been made unless made in writing. OWNER
shall be entitled to injunctive relief in case of the violation, 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
OWNER by law.
(b) If TENANT shall be in default in the performance of any of its
obligations hereunder, beyond the term of all applicable notice and cure
periods, TENANT shall pay to OWNER, on demand, all expenses reasonably incurred
by OWNER as a result thereof, including reasonable Attorneys' fees and expenses.
If TENANT is obligated under Paragraph 20 to defend OWNER in any litigation
commenced against OWNER, and TENANT, at its expense, shall fail to provide OWNER
with counsel reasonably approved by OWNER, TENANT shall pay all costs and
reasonable Attorneys' fees and expenses reasonably incurred by OWNER in
connection with such litigation.
(c) If OWNER shall be in default in the performance of any of its
obligations hereunder, OWNER shall pay to TENANT, an demand, all expenses
reasonably incurred by TENANT as a result thereof, including reasonable
Attorneys' fees and expenses. If OWNER is obligated under Paragraph 20 to defend
TENANT in any litigation commenced against TENANT, and OWNER, at its expense,
shall fail to provide TENANT with counsel approved by TENANT, OWNER shall pay
all costs and reasonable Attorneys' fees and expenses incurred by TENANT in
connection with such litigation.
28. Notices, Demands and other Instruments. All notices, demands,
designations, certificates, requests, offers, consents, approvals and other
instruments given pursuant to this Lease shall be in writing and shall be
validly given when mailed by prepaid registered or certified mail:
(a) if to OWNER, addressed to OWNER at its address set forth above,
with copy to Xxxxxx X. Xxx, Esquire, Xxx and Xxx, 000 Xxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxxxx, XX 00000-0000; and
(b) if to TENANT, addressed to TENANT at its address set forth
above, with copy to Xxxx Xxxxxx, Esquire, Xxxxx & XxXxxxxx, 000 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
OWNER and TENANT each may from time to time specify any address in
the United States as their address for purposes of this Lease by giving fifteen
(15) days' notice to the other party.
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21
29. Inspection; Showing Premises. Upon reasonable notice, OWNER may
inspect the Premises from time to time during normal business hours for
compliance with the terms of this Lease. Upon reasonable prior notice, OWNER may
exhibit the Premises to prospective mortgagees and purchasers during normal
business hours. During the two months preceding termination of this Lease OWNER
may (a) upon reasonable prior notice exhibit the Premises to prospective tenants
and others and (b) place "For Rent" and "For Sale" notices on the Premises. Upon
the expiration or termination of the term of this Lease
30. Surrender. Upon the expiration or termination of the term of this
lease or holdover period, TENANT shall surrender the Premises to OWNER in the
condition in which the Premises were originally received from OWNER except as
repaired, rebuilt, restored, altered or added to as permitted or required
hereby, and except for ordinary wear and tear. TENANT shall remove from the
Premises on or prior to such expiration or termination all property situated
thereon which is not owned by OWNER, unless such property is or has become a
fixture. TENANT shall not remove any fixture installed by TENANT unless directed
to do so by OWNER, in which event TENANT shall remove the fixture and repair any
damage caused by such removal. Any property not removed shall become the
property of OWNER; provided, however, if OWNER does not want such property,
OWNER may ask TENANT to remove such property from the Premises and if TENANT
does not promptly remove such property from the Premises, OWNER may cause such
property to be removed from the Premises at TENANT'S reasonable expense and
discarded as trash. OWNER may, after giving TENANT seven (7) days' notice, cause
such property to be removed from the Premises.
31. Right of First Refusal. If at any time during the Primary Term or the
Extended Term of the Lease OWNER receives a bona fide offer to purchase the
Premises other than a bid or offer to purchase the Premises at a sale incidental
to the exercise of any remedy provided for in a mortgage held by a commercial
lending institution, which OWNER desires to accept, OWNER will, prior to
accepting the same, give TENANT the right to purchase the Premises upon the same
terms and conditions contained in such offer. If TENANT elects to exercise its
right, TENANT shall (a) give OWNER notice of TENANT'S election within thirty
(30) days of receiving written notice of the full terms of the proposed sale and
OWNER'S intention to sell, and (b) pay OWNER a deposit of $100,000.00 to be
applied to the purchase price or retained by OWNER as provided in Paragraph 33.
The $100,000.00 shall be deposited in an interest bearing account in a financial
institution insured by the Federal Deposit Insurance Corporation. Interest
earned on the account shall be paid to TENANT. TENANT must complete the purchase
within one hundred twenty (120) days of receiving written notice of the full
terms of sale and OWNER'S intention to sell. If TENANT fails to exercise its
right to purchase, OWNER may proceed to sell the Premises in accordance with the
terms of the offer. If such sale is not made, TENANT'S right to purchase shall
be reinstated as aforesaid. The rights granted TENANT under this paragraph are
coupled with an interest in the Premises. Except only that a conveyance or
transfer pursuant to this paragraph shall forever terminate TENANT'S rights
under this paragraph, any conveyance or transfer pursuant to this paragraph
shall be expressly subject to this Lease.
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22
32. Option to Purchase. If no event of default shall have occurred and be
continuing, TENANT shall have the option to purchase the Premises for its fair
market value (the Purchase Price), such amount to be determined as hereinafter
specified, the option to be exercised in the manner hereinafter specified. To
exercise the option, TENANT must deliver to OWNER written notice that TENANT has
elected to exercise its option under this Paragraph to purchase the Premises.
The notice must specify a date selected by TENANT on which the purchase is to be
consummated (the Purchase Date). The Purchase Date must be prior to the
termination of this Lease and at least sixty (60) days after - and not more one
one hundred twenty (120) days after the day the notice is delivered to OWNER.
The notice must be accompanied by a cash deposit of $100,000.00, to be applied
to the purchase price or retained by OWNER as provided in Paragraph 33. The
$100,000.00 shall be deposited in an interest bearing account in a financial
institution insured by the Federal Deposit Insurance Corporation. Interest
earned on the account shall be paid to TENANT. If OWNER and TENANT are unable to
agree upon the fair market value of the premises within twenty (20) days of when
TENANT gave written notice to OWNER of TENANT'S desire to purchase the Premises,
the fair market value of the Premises shall be determined as follows:
OWNER and TENANT shall each, within ten (10) days of the expiration
of said twenty (20) days, name an arbitrator by written notice to the other. If
the two (2) arbitrators agree on the fair market value of the Premises within
twenty (20) days after their appointment, the agreed amount shall be the fair
market value of such property for purposes of this option. If the two (2)
arbitrators do not reach an agreement on the fair market value of the Premises
within twenty (20) days of their appointment, they shall each set forth in
writing his opinion (without explanation) of the Premises' fair market value and
deliver his written opinion of value to the other, and they shall jointly name a
third arbitrator. It shall be the duty of the third arbitrator to select that
one of said written opinions of value that is closest to the third arbitrator's
opinion of the Premises' fair market value. The written opinion of value so
selected shall be the fair market value of the Premises for purposes of this
option. If an arbitrator is not named by OWNER within the applicable ten (10)
day period, or such arbitrator fails to perform his duties hereunder, the single
arbitrator named by TENANT shall determine such fair market value. OWNER and
TENANT shall each pay all expenses of the arbitrator it named, and they shall
both pay one-half (1/2) of the expenses of the third arbitrator.
33. Procedure Upon Purchase. If TENANT shall purchase the Premises
pursuant to this Lease, OWNER shall convey good record and marketable fee simple
title to TENANT or its designee subject only to this Lease and the matters
reported in Schedule A, and TENANT or its designee shall accept such title,
subject however, to provisions of local building and zoning laws, lien for such
taxes for the current municipal fiscal year which are not due and payable on the
Purchase Date, lien for any municipal betterments assessed after the date of
this Lease; easements, rights of way and restrictions of record now existing or
hereafter created which do not unreasonably interfere with TENANT'S use of the
Premises, but free of the lien of any mortgage granted by OWNER and free of
charges, liens, and security interests resulting from acts of
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23
OWNER. OWNER represents and warrants its title in the premises on the date this
Lease is signed (except as to current real estate taxes) is as set forth in
Schedule A.
Upon the Purchase Date, or such other date as the parties may by
agreement fix for the purchase of the Premises hereunder, TENANT shall pay OWNER
the Purchase Price therefor specified herein together with all Fixed Base Rent,
additional rental obligations and other sums then due and payable hereunder to
and including such date of purchase, less the $100,000.00 deposit paid by
TENANT, and OWNER shall deliver to TENANT or TENANT'S designee a quitclaim deed
(as defined in Massachusetts General Laws Chapter 183, Section 11) to the
Premises, in recordable form, and any other instruments necessary to assign any
other property then required to be assigned by OWNER pursuant hereto. TENANT
shall pay all charges incident to such conveyance and assignment, including
escrow fees, recording fees, and title Insurance premiums (but not document tax
stamps for the deed and not Attorney's fees incurred by OWNER) which may be
Imposed by reason of such conveyance and assignment and the delivery of said
deed and other instruments. Upon the completion of such purchase, but not prior
thereto (whether or not any delay or failure in the completion of such purchase
shall be the fault of OWNER), this Lease shall terminate, except with respect to
obligations and liabilities of TENANT hereunder, actual or contingent, which
have arisen on or prior to such date of purchase.
If TENANT shall have given notice, pursuant to Paragraph 31 or 32 of
TENANT'S intention to purchase the Premises, and should OWNER be ready, willing
and able to consummate the purchase of the Premises by TENANT on the date fixed
for the purchase, and should TENANT fail to consummate the purchase on such
date, except as provided in the following sentence, OWNER shall retain the
$100,000.00 deposit as liquidated damages and thereafter neither party shall
have any rights against the other on account of such intended purchase. If
TENANT fails to purchase the Premises because TENANT, or its designee, was not
able, after using due diligence and reasonable effort, to borrow seventy (70%)
percent of the purchase price from a commercial money lending institution on a
loan to be secured by a first mortgage of the Premises and terms then currently
available for similar loans, OWNER shall return the $100,000.00 deposit to
TENANT, and, thereafter, neither party shall have any rights against the other
on account of such intended purchase and this Lease shall continue.
If TENANT shall have given notice, pursuant to Paragraphs 31 or 32
of TENANT'S intention to purchase the Premises, and should OWNER fall to
consummate the purchase on the date fixed for the purchase, TENANT's obligation
to pay ongoing rent shall terminate on the dated fixed for the purchase, TENANT
may bring an action seeking specific performance of OWNER'S obligation to sell
the Premises to TENANT, or damages, or both and OWNER shall reimburse TENANT for
all reasonable costs incurred by TENANT, including reasonable Attorney's fees,
in connection with such action.
34. Owner's Consent to Lender's Interest in Tenant's Assets. OWNER will,
if TENANT is not in default hereunder, from time to time, upon twenty (20) days'
prior request by TENANT, beyond any applicable notice and grace periods
hereunder, execute, acknowledge and
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deliver to TENANT a LANDLORD'S WAIVER AND CONSENT substantially identical to the
Specimen Landlord's Waiver and Consent in Schedule B.
35. Separability; Binding Effect; Miscellany. Each provision hereof shall
be separate and independent and the breach of any such provision by OWNER shall
not discharge or relieve TENANT from its obligations to perform each and every
covenant to, be performed by TENANT hereunder. If any provision hereof or the
application thereof to any person or circumstance or at any time shallot any
extent be invalid or unenforceable, the remaining provisions hereof, or the
application of such provision to persons or circumstances or at times other than
those as to which it is invalid or unenforceable shall not be affected thereby,
and each provision hereof shall be valid and shall be enforced to the extent
permitted by law. All provisions contained in this Lease shall be binding upon,
inure to the benefit of and be enforceable by, the respective successors and
assigns of OWNER and TENANT to the same extent as if each successor and assign
were named as a party hereto. If OWNER is a representative or fiduciary, only
the assets of the estate represented shall be bound, and neither the OWNER, nor
any shareholder nor any beneficiary of any trust, shall be personally liable for
any obligation expressed or implied hereunder. This Lease shall be governed by
the law of The Commonwealth of Massachusetts. This Lease may not be changed,
modified or discharged except by a writing signed by OWNER and TENANT. This
Lease may be executed in any number of counterparts, each of which shall be an
original, and such counterparts shall together constitute but one and the same
Lease. The headings of the various paragraphs herein have been inserted - and
the Summary preceding this Lease has been included - for reference only and
shall not to any extent have the effect of modifying or amending the express
terms and provisions hereof.
IN WITNESS WHEREOF, OWNER and TENANT have each caused this Lease to be
duly executed and delivered to take effect as a sealed instrument on 1 June
1993, regardless of the date in fact signed.
MASSACHUSETTS COLONY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X. Xxxxxxxx, President
ESP LOCK PRODUCTS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Xxxxx X. Xxxxxxxx, President
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SCHEDULE A
Attached to and forming a part of the Lease between
MASSACHUSETTS COLONY CORPORATION, Owner,
and
ESP LOCK PRODUCTS, INC., Tenant
Property situated in Leominster, Mass., on the westerly side of Harvard Street
and the easterly side of White Street, which is shown as Lot 2 on plan entitled
"Land in Leominster, Mass. owned by Xxxxx X. Xxxxxxxxxx et ux," dated August 20,
1973, prepared by Xxxxxxx X. Xxxxxxx & Associates, Registered Engineers and
Surveyors, and recorded in Worcester Northern District Registry of Deeds, Plan
Book 180, Page 20, and bounded and described as follows:
Beginning at the northeasterly corner thereof at a point on said westerly
side of Harvard Street, which point is 214.06 feet southerly of the point
of tangency of said westerly side of Harvard Street with the curve at the
southerly corner of the intersection of said Harvard Street and said White
Street, and at Lot 1 as shown on said plan;
THENCE, South 19(degrees) 42' 40" East by said westerly side of Harvard
Street, one hundred sixty-six and 79/100 (166.79) feet;
THENCE, South 37(degrees) 31' 10" East, still by said westerly side of
Harvard Street, eight hundred fifty and 45/100 (850.45) feet to land of
Xxxxx X. Xxxxxxxxxx;
THENCE, South 24(degrees) 36' 30" West by said land one hundred
seventy-seven and 31/100 (177.31) feet to an iron rod at land now or
formerly of New England Power Co.;
THENCE, North 66(degrees) 01' 40" West, two hundred eighty-six and 92/100
(286.92) feet to an iron rod;
THENCE, North 67(degrees) 04' 40" West, fifty-six and 66/100 (56.66) feet;
THENCE, North 74(degrees) 15' 15" West, fifty-one and 20/100 (51.20) feet
to an iron rod;
THENCE, North 67(degrees) 54' 30" West-, one hundred eighty-seven and
98/100 (187.98) feet to a drill hole;
THENCE, North 69(degrees) 00' West, one hundred sixteen and 52/100
(116.52) feet to an iron rod;
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THENCE, North 67(degrees) 05' 30" West, two hundred seventeen and 23/100
(217.23) feet to the easterly side of White Street, the last six courses
all being by New England Power Co. land;
THENCE, North 16(degrees) 18' East by said easterly side of White Street
two hundred forty-eight and 31/100 (248.31) feet;
THENCE, North 12(degrees) 36' East, still by said easterly side of White
Street, two hundred eighty-nine and 01/100 (289.01) feet;
THENCE, North 19(degrees) 07' 15" East, still by said easterly side of
White Street one hundred forty-five and 50/100 (145.50) feet to Lot 1 as
shown on the plan above referred to;
THENCE, South 71(degrees) 07' 35" East by said Lot 1, one hundred seven
and 74/100 (107.74) feet;
THENCE, North 70(degrees) 17' 20" East, still by said Lot 1, seventy-four
(74.00) feet to the place of beginning.
Containing 10.214 acres.
Being the same premises Xxxxx X. Xxxxxxxxxx conveyed to Massachusetts
Colony Corporation by deed dated October 6, 1976, recorded in said Registry of
Deeds in Book 1168, Page 163.
Subject to the Mortgage Massachusetts Colony Corporation granted to
Leominster Savings Bank on 3 November 1976, recorded in said Registry of Deeds
in Book 1169, Page 557.
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SCHEDULE B
Attached to and forming a part of the Lease between
MASSACHUSETTS COLONY CORPORATION, Owner,
and
ESP LOCK PRODUCTS, INC., Tenant
Copy of Lessor's Agreement with Shawmut Bank and Xxxxxxxxx Capital
Partners to be inserted here.
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SCHEDULE C
Attached to and forming a part of the Lease between
MASSACHUSETTS COLONY CORPORATION, Owner,
and
ESP LOCK PRODUCTS, INC., Tenant
Copy of Hazardous Materials, Remediation and Indemnity Agreement to be
inserted here.
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