LEASE INDENTURE
|
LEASE INDENTURE
|
| This
Lease is made effective as of the 1st day of March, 2004 and is
by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., TRUSTEE OF HD REALTY TRUST - 1993, under Declaration of Trust dated January 14, 1994 and recorded
with the Essex South District Registry of Deeds in Book 12245, Page 562,
with a mailing address of ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as the "Landlord" which
expression shall mean and include his successors and assigns wherever the
context permits), and TITAN PCB EAST, INC., a Delaware corporation
with a mailing address of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ (hereinafter referred to as the "Tenant" which expression
shall include its successors and assigns wherever the context permits).
|
|
W I T N E S S E T H:
|
|
SECTION ONE
|
|
DEMISED PREMISES
|
| 1.1 Description.
Landlord hereby leases to Tenant the land owned by Landlord at One and ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, being the land described on
Exhibit A attached hereto and made a part hereof, together with all
buildings and improvements thereon (said land and all such buildings and
improvements, whether presently existing or hereafter constructed
hereinafter collectively referred to as the "demised premises").
|
| 1.2 Rights
and Encumbrances. The demised premises are leased to Tenant
together with all rights and appurtenances to the demised premises
including the parking areas, driveways and walkways serving the demised
premises, and are subject to all rights, mortgages, easements,
restrictions, covenants and other matters of record, and all laws,
regulations, rules, orders ordinances and the like imposed by any
governmental authority or legal subdivision having jurisdiction over the
demised premises or Tenant's activities thereon.
----------------------------------------------------------------------------------------------------------------------- |
| 1.3 Possession.
Tenant has inspected the demised premises and all of the fixtures and
equipment therein, and accepts the demised premises and all such
furnishings, fixtures and equipment in the same "AS IS"
condition as they presently are in. Landlord shall have no obligation to
prepare, construct, renovate or repair any portion of the demised premises
for Tenant's occupancy, or otherwise bear any cost with respect thereto.
|
|
SECTION TWO
|
|
COVENANT OF QUIET ENJOYMENT
|
| 2.1 Quiet
Enjoyment. Landlord covenants that Tenant on paying the rent and
performing and observing Tenant's obligations in this Lease, shall
peacefully and quietly have, hold and enjoy the demised premises free of
lawful claims made by, through or under Landlord, subject to all the terms
and provisions hereof, and subject to mortgages, rights, easements,
restrictions, covenants and other matters of record.
|
|
SECTION THREE
|
|
TERM
|
| 3.1 Term.
Tenant shall have and hold the demised premises for a term of five (5)
years (unless sooner terminated as herein provided) commencing on the date
of this Lease and terminating on the last day of February 2009.
|
|
SECTION FOUR
|
|
SUBORDINATION
|
| 4.1 Subordination.
This Lease, and the rights of Tenant hereunder, are subject and
subordinate to any mortgage now or hereafter placed upon the demised
premises or any part thereof by Landlord (a "Mortgage"). Unless
the holder of any such Mortgage (a "Mortgagee") elects to the
contrary, such subordination shall be automatic, without the execution of
any further subordination agreement by Tenant. At the request of Landlord,
Tenant shall join in a subordination agreement requested by any Mortgagee,
which shall provide for the subordination of this Lease, in whole or in
part, to the Mortgage in question, or vice versa, in accordance with the
request of such Mortgagee. If any Mortgagee shall succeed to the interest
of Landlord, Tenant will pay to Mortgagee all rents subsequently payable
under this Lease, and, at Mortgagee's elections, Tenant shall attorn to
such successor Mortgagee and shall ipso facto be and become bound
directly to such Mortgagee as landlord to perform and observe all of the
Tenant's obligations under this Lease without the necessity of the
execution of any further instrument.
----------------------------------------------------------------------------------------------------------------------- |
|
SECTION FIVE
|
|
RENT
|
| 5.1 Minimum
Monthly Rent. Tenant covenants to pay by check in lawful currency
of the United States a minimum monthly rent during the term of this Lease
on the first day of each month as set forth on EXHIBIT B attached hereto
and hereby made a part hereof.
|
| Tenant's
obligation to make monthly payments of minimum rent shall commence to
accrue as of March 1, 2004. Landlord acknowledges that Tenant has
paid the first month's rent due on March 1, 2004. Notwithstanding any
provision of this Lease to the contrary, Tenant, at Tenant's sole option,
may make payments of minimum monthly rent directly to the holder or
holders of a mortgage on the demised premises. Landlord agrees upon the
request of Tenant to provide Tenant with all information necessary to make
payments to any mortgagees.
|
| 5.2 Additional
Rent. As set forth on EXHIBIT B, attached hereto and hereby
made a part hereof, Tenant further covenants to pay, as additional rent,
the sum of $7,500/month towards all real estate taxes, assessments, water
and sewer charges, and other amounts required under any provision of this
Lease, and, in the event of failure by Tenant to pay any of the same,
Landlord shall have all the rights and remedies provided for in this Lease
and by law in the case of nonpayment of rent.
---------------------------------------------------------------------------------------------------------------------- |
| 5.3 Payment
of Rent. Tenant covenants that during the term hereof and for such
|
| further
time as Tenant or any other person or persons claiming by or under Tenant
shall hold the demised premises or any part thereof, Tenant will pay the
minimum monthly rent and the additional rent to Landlord at its address as
specified in Section Thirteen without demand at the times specified
herein, and without offset or deduction of any kind.
|
| 5.4 Net
Lease. It is intended and agreed that the minimum rent shall be
absolutely net to Landlord and shall be paid without any abatement,
deduction, or setoff. Except as otherwise specifically set forth herein,
Tenant agrees to pay as additional rent, and shall save Landlord harmless
from and against all costs, real estate taxes, insurance premiums, water
and sewer and all other utility charges, maintenance and repair costs, and
expenses and obligations of every kind and nature whatsoever relating to
the demised premises or Tenant's use thereof, which may arise or become
due after the commencement date of this Lease and until the end of the
term. It is intended and agreed that Tenant shall be responsible for all
costs associated with the use of the demised premises, including any and
all costs of compliance with requirements of governmental authorities, as
well as any insurance rating bureau, whether or not such compliance is
required by reason of acts or omissions of Tenant, and whether such
compliance relates to the land, buildings and improvements, or conditions
above or below ground. For recovery of additional rent referred to in
Section 5.2 and this section 5.4, Landlord shall have the remedies
provided in this Lease for nonpayment of minimum rent. Landlord and Tenant
agree that Tenant is not responsible for the payment of any amount of
Taxes or utility charges on account of any period prior to the effective
date of this Lease.
---------------------------------------------------------------------------------------------------------------------- |
|
SECTION SIX
|
|
MAINTENANCE AND REPAIRS
|
| 6.1 Tenant's
Repairs. Tenant shall, at its sole cost and expense, (i)
make all necessary repairs to the demised premises and each and every part
thereof, including, but not limited to, the roof (including both
structural members and covering), walls and floor slab, so as to keep the
demised premises in the same condition in which they are now or may
hereafter be put, reasonable wear and use, damage by fire or other
casualty only accepted, (ii) maintain, repair and renew as necessary all
mechanical and utility systems on the demised premises so as to keep them
in good and safe operating condition in all respects, and (iii) keep the
sidewalks and parking areas in good repair and condition and reasonably
free from trash, snow, ice and other objectionable matter. All repairs
made by Tenant shall be equal or better in quality and class to the
original work.
|
| 6.2 Compliance
with Laws. Tenant shall at all times comply with all
applicable building, zoning and land use, health, sanitary and safety
laws, rules, regulations, by-laws and other governmental requirements,
orders, rules or regulations and Environmental Laws, as hereinbelow
defined, as may be applicable to the demised premises, or the occupancy
thereof from time to time. As used herein, the term
"Environmental Laws," shall include, but not limited to, the
Comprehensive Environmental Response Compensation and Liability Act of
1990, as amended, 42 U.S.C. Section 9601 et. seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Section 1801 et. seq.; the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901
et seq.; Massachusetts General Laws, Chapter
----------------------------------------------------------------------------------------------------------------------- |
| 21E, as amended; the Massachusetts Contingency
Plan, as amended, 310 CMR 40.0000 et. seq.; and all other related
environmental laws, regulations, rulings, administrative interpretations
and common law requirements. The term "hazardous material "
shall include all hazardous materials (as that term is defined by M.G.L.
c.21E, Section 2), hazardous substances (as that term is defined by 42
U.S.C. Section 9601 et seq.), oil (as defined by the foregoing statutes),
and any other chemical, contaminant, substance, material or waste
regulated under any Environmental Laws. The term "release"
means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, flushing or in any
other respect disposing into the surface, subsurface, groundwater or
environment (including without limitation, the abandonment or
discarding of barrels, containers and other closed receptacles containing
any hazardous material), on or about the demised premises.
|
| 6.3 Use
of Substances. Tenant represents and warrants and agrees that
Tenant will not cause or permit any hazardous materials to be stored,
generated or disposed of in the demised premises except for hazardous
materials used in the ordinary course of Tenant's business in such manner
that it does not constitute a release or threat of release, or otherwise
establish responsibility under, liability under of violation of any
Environmental Laws. To the extent that Tenant uses any hazardous
materials, Tenant represents and warrants that Tenant has provided
Landlord with an inventory of all hazardous materials used or to be used
in the Tenant's normal operations at the demised premises, a copy of which
is attached hereto as EXHIBIT C and incorporated herein by reference, and
that Tenant will update said inventory as and when new materials are
introduced or previously inventoried materials are no longer stored.
Tenant further represents and warrants to the Landlord that in the
Commonwealth of Massachusetts, to the best of Tenant's knowledge, (i) has
not been subject to any regulatory action with respect to a violation of
any Environmental Laws or
----------------------------------------------------------------------------------------------------------------------- |
| otherwise with respect to any release or threat
of release, (ii) has not received any "notice of responsibility"
or the like from any governmental agency, (iii) has not previously caused
or been a person responsible for a release or threat of release of
hazardous materials, (iv) has not been a defendant in any lawsuit,
administrative proceeding, arbitration, mediation or other proceeding in
which it has been alleged that tenant has liability under any
Environmental Laws or otherwise for a release or a threat of release of
hazardous material, and (vi) has not at any time violated any
Environmental Law in its operations.
|
| 6.4 Release;
Reporting; Remediation. Tenant shall not release or otherwise
cause any hazardous materials to be the subject of a release or threat of
release to the soils, groundwater, subsurface, surface or otherwise at the
demised premises. In the event of a release or threat of release at the
demised premises, Tenant shall immediately report such release to Landlord
and to the applicable governmental authority as required by the applicable
Environmental Laws, and shall promptly provide Landlord with all reports,
data, sampling results and information concerning any such release. Tenant
shall further immediately take any and all steps to remedy any such
release; to in all other respects comply with all Environmental Laws; and
to restore the Premises to its conditions existing prior to such release.
|
| 6.5 Inspection.
Upon reasonable notice to Tenant, except in the case of an emergency,
Tenant hereby grants Landlord and its employees, agents, consultants and
independent contractors the right to enter upon the Premises for the
purpose of conducting tests, soil borings and selection of monitoring
▇▇▇▇▇, and any other tests and/or inspection which Landlord deems
necessary or desirable. At any time during the term of this Lease,
Landlord may for reasonable cause, require Tenant to provide Landlord, at
the expense of Tenant, an inspection or audit of the Premises, prepared by
a qualified consultant approved by Landlord, certifying as to the presence
or absence of hazardous materials, or to permit Landlord to so inspect or
audit the Premises at Tenant's expense
|
| 6.6 Indemnification
Against Release. Tenant hereby agrees to indemnify Landlord from
and against all loss, liability, damage and expense, including attorneys'
fees, suffered or incurred by Landlord by reason of any Release or
violation of any Federal, state or local law, order, rule or regulation
with respect to use, storage or disposal of Hazardous Material on the
demised premises.
|
| 6.7 Tenant's
Alterations. Tenant, at its expense and in a good and workmanlike
manner, (i) may make improvements, additions or alterations to or upon the
demised premises, provided that prior written approval has been granted by
Landlord, and (ii) shall make all improvements, additions, and alterations
to or upon the demised premises required by any public authority or
insurance rating bureau. All such improvements, alterations or additions
shall be performed by contractors approved in advance by Landlord in
writing, which contractors shall provide evidence of liability insurance,
including completed operations coverage, plus builders, risk insurance in
amounts not less than specified in this Lease. Tenant shall pay all
contractors amounts for work performed as and when due and shall not
permit the recording or filing of any notice of contract or similar item
signifying a lien for labor or materials in respect of such work. Tenant
shall immediately discharge any such lien by payment or provision of a
bond, in form and substance reasonably satisfactory to Landlord and
Mortgagee. Tenant shall obtain all licenses and permits required for the
performance of any such work, as well as such documentation signifying
completion thereof to the satisfaction of the local governmental
authorities. Such permits shall be displayed in a conspicuous place on the
demised premises during performance of any such work.
----------------------------------------------------------------------------------------------------------------------- |
| 6.8 Title to Improvements. All improvements, additions and alterations made or installed by or on behalf of Tenant, except as provided in Subsection 12.1 hereof, shall upon the expiration or earlier termination of this Lease become the property of Landlord without payment therefor by Landlord. All machinery, equipment, trade fixtures, movable partitions, furniture and furnishings installed at the expense of Tenant shall remain the property of Tenant, but Tenant shall at its own cost and expense repair any and all damage to the demised premises caused by the installation or removal thereof. |
|
6.9 Survival of Obligations. Tenant's obligation to observe or perform the covenants and agreements in this Section Six shall survive the expiration or other termination of this Lease. SECTION SEVEN
|
|
TAXES, ASSESSMENTS AND UTILITY CHARGES
|
| 7
.1 Obligations
of Tenant -Taxes. Tenant shall pay as additional rent all Taxes
imposed with respect to the demised premises or any portion thereof,
Tenant's interest therein, and/or property of Tenant located thereon or
therein, which are attributable to any period beginning with the date of
commencement of this Lease and until the end of the term as the same may
be extended from time to time.
|
| As used herein the term Taxes shall mean: All
taxes, assessments, rates, charges, betterments, excises, levies, license
and permit fees, and all other governmental charges, or impositions,
general and special, ordinary and extraordinary, unforeseen and foreseen,
of any kind and nature whatsoever which at any time may be assessed,
levied, confirmed, imposed upon, become due and payable out of or in
respect of, or becoming a lien on the demised premises, or any part
thereof or any appurtenance thereto, or upon any lease, rent, use or
occupation of the demised premises, or any part thereof or any facilities
associated therewith, and such franchises as may be appurtenant to the use
thereof; excluding, however, general federal and state income, death, gift
or transfer taxes of Landlord. Should any such Taxes be determined with
respect to rents or Tenant's use and/or occupancy, Tenant shall be
responsible for the entire amount of such Tax which is determined with
respect to rents or Tenant's use and/ or occupancy.
--------------------------------------------------------------------------------------------------------------------- |
| 7.2 Payment
by Tenant. Tenant agrees to pay all Taxes to Landlord within
twenty (20) days of receipt of Landlord's demand therefor accompanied by a
copy of the ▇▇▇▇.
|
| 7.3 Tenant's
Right to Contest Taxes. Tenant shall have the right, upon prior
written notice to Landlord and at Tenant's sole cost and expense, to
contest the amount or validity, in whole or in part, of any Taxes, or to
seek a reduction in the valuation of the demised premises as assessed for
real estate or personal property tax purposes by appropriate proceedings
diligently conducted in good faith so long as neither the demised premises
nor any part thereof would be in danger of being forfeited or lost.
|
| 7.4 Landlord's
Right to Contest Taxes. Landlord shall have the right to contest
by appropriate proceedings the amount or validity, in whole or in part, of
any Taxes, or to seek a reduction in the assessed valuation for tax
purposes of the demised premises, if, within thirty (30) days after notice
by Landlord (or, if sooner, five (5) business days prior to the last date
on which such proceedings may be commenced of right), Tenant fails to
commence such a proceeding. Landlord shall also have the right, if Tenant
fails diligently to prosecute any such proceeding, to intervene in and
prosecute any proceeding commenced by Tenant, to contest the amount or
validity of any Taxes in whole or in part or to seek a reduction of such
assessed valuation or valuations.
---------------------------------------------------------------------------------------------------------------------- |
| 7.5 Obligations
of Tenant -Utilities and Other Charges. Tenant shall pay as
additional rent all water and sewer charges, general and special
assessments, and other governmental charges together with interest and
penalties, if any, which may be payable in respect of the demised
premises, and to pay promptly as they become due all charges for any gas,
electricity, telephone, fuel oil, water and sewer or other utility
service, commodity or facility (collectively called "Utility
Charges") supplied to the demised premises during the term of this
Lease.
|
| 7.6 Apportionment.
Upon termination of the term or any further period during which the Tenant
or any person claiming under the Tenant shall hold the demised premises or
any part thereof, Tenant shall pay all such Taxes and Utility Charges,
prorated to such termination, as shall have been assessed or incurred, but
remain unpaid, whether or not then due.
|
|
SECTION EIGHT
|
|
ASSIGNMENT OR SUBLETTING, ETC.
|
| 8.1 Approval
Required. Tenant may not assign this Lease or sublet the
whole or any part of the demised premises, or permit the same to be
occupied or used by any person without first obtaining the written consent
of Landlord and Mortgagee in each case. A transfer of a controlling
interest in Tenant shall be deemed an assignment for purposes of this
section. In the case of an assignment or subletting of the demised
premises, Tenant shall pay to the Landlord, as additional rent, all
consideration, payments or rent received by Tenant over and above the
minimum monthly rent paid hereunder. No consent once given shall be deemed
to constitute consent to any further assignment or sublet, as the case
may, or to waive the requirement that consent be obtained in each such
further instance.
|
| Approval
Not Required. Landlord may, upon a sale of the demised premises,
assign all of its rights and obligations to the buyer without approval of
the Tenant and Tenant agrees to attorn to the new Landlord.
|
|
SECTION NINE
|
|
INSURANCE
|
| 9.1 Tenant's
Insurance. Tenant shall maintain the following insurance at the
Tenant's expense throughout the term of this Lease and during such further
time as Tenant or any person claiming under it shall hold the demised
premises or any part thereof:
|
| (a)
Commercial general liability insurance with a contractual liability
exclusion rider insuring Landlord and Tenant and any Mortgagee against
claims for bodily injury or death occurring on or about the demised
premises, such insurance to afford protection to a limit of not less than
Two Million Dollars ($2,000,000.00), or such greater amount as may be
required by the holder of any mortgage which includes the demised
premises;
|
| (b)
Property damage insurance insuring Landlord, Tenant and any Mortgagee as
loss payee against claims for damage or injury to property occurring on or
about the demised premises, such insurance to afford protection to a limit
of not less than Five Hundred Thousand Dollars ($500,000.00) with respect
to damage to the property of anyone owner.
|
| (c)
Property insurance with special form (formerly designated all-risk)
coverage in an amount sufficient to cover the full replacement cost of all
buildings, structures, improvements, additions and alterations, now or at
any time hereafter on the demised premises;
----------------------------------------------------------------------------------------------------------------------- |
| (d)
Workers ' compensation policies in amounts and coverages required by the
laws and regulations of the Commonwealth of Massachusetts; and
|
| (e)
Such other insurance and in such amounts as from time to time may
reasonably be required by Landlord against other insurable hazards which
at the time are commonly insured against in the case of premises similarly
situated and used, or which are required by any Mortgagee.
|
| 9.2 Insurance
Provisions. All insurance provided for in Section 9.1 shall be
effected with or through responsible insurers authorized to write such
insurance in Massachusetts, shall name Landlord and Mortgagee as
additional insured and loss payees, as applicable, and shall provide that
such insurance shall not be canceled or modified without at least thirty
(30) days' prior written notice to any Mortgagee and each insured named
therein. Such insurance may be maintained under a "blanket
policy," so-called, insuring other property of Tenant. The limits and
types of insurance required hereunder may be increased, modified or added
to from time to time by Landlord effective after thirty (30) days prior
notice to the Tenant so that they are, (i) in the reasonable opinion of
Landlord comparable to the limits and types customarily carried by the
responsible tenants similarly situated and conducting comparable
businesses, and/or (ii) in conformity with the requirements of any
Mortgagee.
|
| 9.3 Evidence
of Insurance. Upon the commencement of this Lease and thereafter
not less than twenty (20) days prior to the expiration dates of the
expiring policies, Tenant shall deliver to Landlord and any Mortgagee
certificates or binders evidencing the insurance coverages provided for in
Section 9.1 and renewals thereof.
---------------------------------------------------------------------------------------------------------------------- |
| 9.4 Property
at Tenant's Risk. In addition to and not in limitation of the
foregoing, Tenant covenants and agrees that all vehicles, equipment,
supplies, merchandise, furniture, fixtures and property of every kind,
nature and description, whether or not owned by Tenant, which may be in or
about the demised premises, or on the sidewalks, areaways, walls, or
approaches adjacent thereto, during the term hereof, shall be there at the
sole risk and hazard of Tenant, and that if the whole or any part thereof
shall be damaged, destroyed, stolen, or removed for any cause or reason
whatsoever, whether or not due to negligence of Landlord, no part of said
damage or loss shall be charged to, or borne by, Landlord. Tenant shall
keep its personal property and trade fixtures fully insured against loss
or damage by fire and other casualties, under policies which, shall name
Landlord as an insured as its interest may appear, and provide for waiver
of any rights of subrogation against Landlord.
|
|
SECTION TEN
|
|
INDEMNIFICATION
|
| 10.1 Indemnification.
(a) Tenant shall indemnify, defend, protect, and save Landlord harmless
from and against, and shall reimburse Landlord for all liabilities,
obligations, damages, fines, penalties, claims, demands, costs, charges,
judgments and expenses, including, but not limited to, reasonable fees of
engineers, architects, and attorneys, which may be imposed upon or
incurred or paid or asserted against Landlord or Landlord's interest in
the demised premises by reason of or in connection with (i) any condition
or occurrence on or about the demised premises, which is discovered or
happens during the term of this Lease and such additional time as Tenant
(or anyone claiming by, through, or under Tenant) shall remain in
possession of the demised premises, other than such liabilities as are
caused solely by the gross negligence of Landlord, (ii) any breach of,
default in, or failure to perform any obligations of Tenant under this
Lease, and (iii) any matters referred to in Subsections 9.4 and 19.4
hereof.
---------------------------------------------------------------------------------------------------------------------- |
| (b) Any expenses incurred by Landlord because of
Tenant's failure to observe the provisions of this Lease, including,
without limiting the generality of the foregoing, those incurred under
Section Six hereof, shall constitute additional rent due hereunder and
shall be paid to Landlord upon demand, in lump sum, together with interest
at the lesser of (a) the maximum legal allowable rate or (b) four percent
(4%) per annum in excess of the then prime rate of interest being charged
by Eastern Bank (or any successor thereto), from the date said expenses
were incurred to the date said additional rent is paid. For the recovery
of such amounts Landlord shall have the remedies provided in this Lease
for nonpayment of minimum rent.
|
| 10.2 Survival
of Obligations. Tenant's obligation to observe or perform the
covenants and agreements in this Section Ten shall survive the expiration
or other termination of this Lease.
|
|
SECTION ELEVEN
|
|
USE OF DEMISED PREMISES
|
| 11.1 Limitations
on Use. The demised premises shall be used only for
manufacturing, offices and warehousing to the extent permitted by
applicable zoning laws and not in violation of any restrictions of record
applicable to the demised premises and for no other purpose whatsoever.
Landlord makes no representation or warranty to Tenant in respect of the
legality of tenant's proposed use of the demised premises. Tenant shall,
at its own expense (a) promptly execute and comply with and conform to all
applicable rules, regulations, orders and requirements of any public
authority, and (b) obtain and maintain all permits, licenses, certificates
and franchises necessary for its use and occupation of the demised
premises and for the erection and maintenance of all signs. Failure to
obtain or maintain any of the same shall not excuse Tenant from its
obligations under this Lease. Tenant agrees that the demised premises and
their appurtenances shall not be overloaded, damaged or defaced and that
no trade or occupation shall be carried on upon the demised premises, or
use made thereof, which shall produce noxious odors or constitute a
nuisance, or which shall be unlawful, improper, noisy or offensive, or
contrary to any laws or any bylaw of the Town of Amesbury, or injurious to
any person or property.
---------------------------------------------------------------------------------------------------------------------- |
| 11.2 Tenant's
Right to Appeal. Tenant shall have the right to contest and appeal
any requirements of any public authority, provided such contest is made in
good faith and in compliance with applicable procedures and is diligently
pursued, but in no way shall any noncompliance occur or delays be caused
by any such contest or appeal which could impose any liability on or
adversely affect either Landlord or the demised premises.
|
|
SECTION TWELVE
|
|
YIELDING UP
|
| 12.1 Surrender.
Upon the expiration or earlier termination of this Lease, Tenant shall
surrender and yield up peacefully and quietly to Landlord possession of
the demised premises and all alterations, additions, fixtures,
improvements and equipment therein, broom clean and in as good condition
as they were in at the time of commencement of Tenant's initial occupancy
of the demised premises, or as the demised premises may have been improved
thereafter, reasonable wear and tear and damage by casualty excepted, and
subject to the provisions of Sections Fourteen and Fifteen. Tenant shall
have the right to remove only removable items which it is entitled to
remove pursuant to this Lease and which are Tenant's own personal
property. All installations, alterations, additions and improvements to or
upon the demised premises, made by Tenant or any other person during the
Tenant's occupancy of the demised premises, whether or not during the term
of this Lease shall be deemed part of the demised premises, and upon the
expiration or other termination of the term of this Lease shall be
surrendered with the demised premises as a part thereof, without
----------------------------------------------------------------------------------------------------------------------- |
| disturbance, molestation or injury (except to
the extent that Landlord shall elect to have Tenant remove any such
installations, alterations, additions or improvements prior to or within
sixty (60) days after the later of expiration or other termination of the
term hereof or the time Tenant vacates the demised premises, in which
event Tenant shall so remove such installations, alterations, additions
and improvements, repairing all damage caused thereby). In the event that
Tenant shall fail to remove its goods and effects from and shall continue
in occupancy of, the demised premises after the expiration or prior
termination of this Lease, a tenancy at sufferance only shall be deemed to
exist, and Tenant shall owe Landlord rent therefore at a rate equal to one
hundred fifty percent (150%) of the minimum rent, additional rent and
other charges in effect at expiration or prior termination of this Lease,
prorated on a daily basis for each day or partial day that the Tenant
continues in possession past the expiration or prior termination hereof.
|
| 12.2 Abandoned
Property. Any personal property which shall remain on the demised
premises after Tenant shall have vacated or abandoned the demised premises
shall be conclusively deemed to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit; provided, however, notwithstanding the foregoing,
that Tenant will, upon request of Landlord made not later than thirty (30)
days after the expiration or termination of the term hereof, promptly
remove from the demised premises any such personal property, provided
further, however, that in all events Tenant shall remove, hiring duly
licensed and insured reputable contractors, any and all materials that may
constitute hazardous substances or hazardous materials as defined by
applicable law above, without further request of Landlord. If any part of
such personal property shall be sold, Landlord may receive and retain the
proceeds of such sale and apply the same, at its option, against the
expenses of the sale, the cost of moving and storage, any arrearages of
minimum monthly rent, additional rent or other charges payable hereunder
by Tenant to Landlord, and any damages to which Landlord may be entitled
under this Lease or pursuant to law.
----------------------------------------------------------------------------------------------------------------------- |
| 12.3 Survival
of Obligations. Tenant's obligation to observe or perform the
covenants and agreements in this Section Twelve shall survive the
expiration or other termination of this Lease.
|
|
SECTION THIRTEEN
|
|
NOTICES
|
| 13.1 Notice Procedure. All notices required to be given or delivered by either party to the other shall be delivered or sent by registered or certified mail, postage prepaid, return receipt requested, or by reputable national overnight courier who provides a receipt against delivery, addressed to the other party at its usual place of business which shall be: |
| If to Landlord:
▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇., Trustee of HD Realty Trust - 1993 ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ If to Tenant:
Titan
PCB East, Inc. unless notice of a different address to which notices shall be delivered or mailed shall have been given one to the other in the manner herein provided at least ten (10) days before the effective date thereof. Notices to Landlord shall also be sent to Eastern Bank, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to the attention of Mr. ▇▇▇▇ ▇▇▇▇▇▇, Vice President. ----------------------------------------------------------------------------------------------------------------------- |
| 13.2
Notice to Mortgagee. After receiving written notice from
any person, firm or other entity that it holds a Mortgage which includes
as part of the mortgaged premises the demised premises, Tenant shall, so
long as such Mortgage is outstanding, be required to give to such holder
the same notice as is required to be given to Landlord under the terms of
this Lease; but such notice may be given by Tenant to Landlord and such
holder concurrently.
|
|
SECTION FOURTEEN
|
|
CONDEMNATION
|
| 14.1 Complete
Taking. If title to the whole or substantially all of the
demised premises shall be taken as a result of the exercise of the power
of eminent domain or by agreement between Landlord and those authorized to
exercise such power (a "complete taking"), the term of this
Lease and all right, title and interest of Tenant hereunder, subject only
to Tenant's rights under this Section Fourteen, shall terminate on the
date of vesting of title pursuant to such taking or agreement, and all
rent shall be apportioned and paid to the date thereof. For the purposes
of this section, a "complete taking" shall be deemed to have
occurred if a taking shall (a) include fifty percent (50%) or more of the
total floor area of the buildings on the demised premises, or (b) include
seventy-five percent (75%) or more of the land area of the demised
premises.
|
| 14.2 Partial
Taking. If title to any portion of the demised premises
shall be so taken which shall be less than a complete taking (a
"partial taking"), Landlord shall be entitled to and shall
receive the total award made in such proceeding, including interest
thereon, if any, and the rent and other terms of this Lease shall not be
reduced or affected in any way. Subject to the rights of Mortgagee,
Tenant, at its sole expense, shall proceed to restore, repair, replace or
rebuild the remaining part of the demised premises as nearly as possible
to the condition they were in immediately prior to such taking, to the
extent that the same shall be feasible. The obligation of Tenant to make
such restoration, repairs,
----------------------------------------------------------------------------------------------------------------------- |
| replacements, or rebuilding shall be conditioned
upon the payment to Tenant (or agreement to pay subject to conditions
referred to in the next sentence) of the net amount of such award
including interest thereon, if any, after deducting (a) the fair value of
the land so taken, and (b) all expenses incurred by Landlord in connection
with such proceeding. Such payment may be made in installments subject to
customary applications with respect to the cost of the work as said cost
shall be certified to Landlord or Mortgagee(s), and/or by the architect or
contractor in charge of the work who shall be approved in writing by the
Landlord and such Mortgagee(s), which approval shall not be unreasonably
withheld. The excess of any such award over the cost of such restoration,
repairs, replacements or rebuilding shall belong to Landlord, and the cost
of such restoration, repairs, replacements or rebuilding in excess of any
such award shall be borne by Tenant.
|
| 14.3 Damages.
If a complete taking shall occur during the original or any extended term
of this Lease, Landlord reserves to itself and Tenant hereby assigns to
Landlord all rights to damages accruing on account of any such taking.
Nothing in the preceding sentence shall prohibit Tenant from applying to
the taking authority for any separate award to which Tenant may be
lawfully entitled, provided that such award shall not reduce the amount of
Landlord' s award.
|
|
SECTION FIFTEEN
|
|
DAMAGE OR DESTRUCTION
|
| 15.1 Tenant's
Duty to Repair. Tenant covenants and agrees that in case of
damage to or destruction of the demised premises or any part thereof by
fire or other casualty, Tenant, at its sole cost and expense, shall
proceed to restore, repair, replace or rebuild the same as nearly as
possible to the condition they were in immediately prior to such damage or
destruction, and any such restoration, repairs, replacements or rebuilding
shall be commenced promptly and prosecuted with reasonable diligence.
---------------------------------------------------------------------------------------------------------------------- |
| 15.2 Application
of Insurance Proceeds. Subject to the rights of Mortgagee, the
obligations of Tenant under Subsection 15.1 hereof are subject to the
condition that all insurance money recovered by Landlord and any
Mortgagee(s) on account of such damage or destruction shall be applied by
Landlord and such Mortgagee to the payment of the cost of the aforesaid
restoration, repairs, replacements or rebuilding. The payment of such
insurance proceeds may at the election of Landlord and/or such Mortgagee(s)
be paid to Tenant from time to time for application to the cost of the
work as said cost shall be certified to Landlord and/or such mortgagee(s)
by an architect or contractor in charge of the work who shall be approved
in writing by Landlord and such Mortgagee(s), which approval shall not be
unreasonably withheld; provided, however, that the balance of insurance
proceeds shall not thereby be reduced below the amount which shall be
specified in such architect's certificate or such contractor's
requisitions as the amount required to complete the restoration. Upon
receipt by Landlord and such Mortgagee(s) of satisfactory evidence that
the restoration has been completed and paid for in full, and that there
are no liens, encumbrances or other charges on the demised premises or any
part thereof, any balance of the insurance proceeds at the time held by
Landlord or such holder or holders shall be paid to Tenant (subject to the
rights of Mortgagee).
|
| 15.3 Abatement
of Rent. Tenant's obligation to make payment of the rent and to
perform all other covenants and agreements hereunder shall not be affected
by any such damage or destruction of any building on the demised premises
by fire or otherwise.
----------------------------------------------------------------------------------------------------------------------- |
|
SECTION SIXTEEN
|
|
LANDLORD'S REMEDIES
|
| 16.1 Landlord's
Right to Cure. If Tenant shall default in the performance or
observance of any agreement or condition in the Lease contained on its
part to be performed or observed, other than in the payment of any minimum
monthly rent, additional rent, or other charges, Landlord, after written
notice by Landlord to Tenant specifying the nature of the default and upon
the expiration of thirty (30) days after the delivery of said notice
unless the default cannot reasonably be cured within said thirty (30) days
due to causes beyond Tenant's control, then upon failure of Tenant to
commence to cure said default within a reasonable time after the delivery
of said notice, and prosecute the curing of said default to completion
with due diligence may, at its option, but without obligation to do so,
cure any such default for the account of Tenant and any amount and any
expense paid by Landlord in so doing with interest thereon at the rate per
annum of four percent above the "prime rate" of Eastern Bank (or
any successor thereto) shall be charged by Landlord as additional rent and
added to the installment or installments of rent thereafter accruing and
Tenant agrees to pay such additional rent to Landlord on demand, and for
recovery of which Landlord shall have the remedies provided in this Lease
for nonpayment of minimum rent. Notwithstanding the foregoing, Landlord
may cure any such default prior to the expiration of the waiting period
after such notice to Tenant, if the curing of such default is reasonably
necessary to protect the demised premises or Landlord's interest therein
or to prevent injury or damage to persons or property. All of the rights
and remedies given to Landlord in this Lease or by law or equity shall be
cumulative and concurrent. The failure of Landlord to insist in anyone or
more cases upon the strict performance of any of the covenants of this
Lease, or to exercise any option herein contained, shall not be construed
as a waiver or relinquishment for the future of such covenant or option.
|
|
SECTION SEVENTEEN
|
|
DEFAULT
|
| 17.1 Conditions
of Limitation. This Lease is subject to the limitation that each
of the following shall constitute an event of default:
|
| (a)
if Tenant shall default in the payment of the minimum monthly rent; or
|
| (b)
if Tenant shall default in the payment of any additional rent or other
charge payable hereunder by Tenant to Landlord on any date upon which the
same becomes due, and such default shall continue for fifteen (15) days;
or
|
| (c)
if Tenant makes any assignment for the benefit of creditors, or if Tenant
files a petition under any bankruptcy or insolvency law; or if such a
petition is filed against Tenant and is not dismissed within thirty (30)
days; or if a receiver or similar officer becomes entitled to Tenant's
leasehold hereunder and it is not returned to Tenant within thirty (30)
days; or if such leasehold is taken on execution or other process of law
in any action against Tenant; or if Tenant shall desert or abandon the
demised premises or the same shall become, or shall appear to have become,
vacant; or any event shall occur or any contingency shall arise whereby
this Lease, or the term and estate hereby created, or possession of the
demised premises would (by operation of law or otherwise) devolve upon or
pass to any person, firm, corporation or entity other than Tenant; or
---------------------------------------------------------------------------------------------------------------------- |
| (d)
if Tenant shall do anything or permit anything to be done, whether by
action or inaction, contrary to any covenant, agreement, term, provision
or condition of this Lease on the part of Tenant to be kept, observed or
performed [other than a default of the character referred to in
subparagraphs (a), (b) or (c) above], and if such situation shall continue
and shall not be remedied by Tenant within thirty (30) days after Landlord
shall have given to Tenant a written notice specifying the same, or, in
the case of such a situation which for causes beyond Tenant's control
cannot with due diligence be cured within said period of thirty (30) days,
if Tenant (i) shall not, promptly upon the giving of such notice, advise
Landlord in writing of Tenant's intention to duly institute all steps
necessary to remedy such situation, (ii) shall not duly institute and
thereafter diligently prosecute to completion all steps necessary to
remedy the same, or (iii) shall not remedy he same within a reasonable
time after the date of the giving of said notice by Landlord; then, upon
the occurrence of any of the foregoing events of default, Landlord may
give to Tenant a notice of intention to end the term of this Lease at the
expiration of three (3) days from the date of the giving of such notice,
and, in the event such notice is given, this Lease and the term and estate
hereby granted shall terminate upon the expiration of said three (3) days
with the same effect as if that day were the date hereinbefore set for the
expiration of the term of this Lease.
|
| 17.2 Right
of Entry. If Tenant shall default in the payment of any rent or
any installment thereof or any other charge payable hereunder by Tenant to
Landlord on any date upon which the same becomes due, and if such default
shall continue beyond any period of grace specified herein, or if this
Lease shall terminate as in Subsection 17.1 hereof provided, Landlord or
Landlord's agents and servants may immediately or at any time thereafter
re-enter upon the demised premises, or any part thereof, in the name of
the whole, either by summary process proceedings or by any suitable action
or proceeding at law, or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and may repossess the same,
and, may remove any persons therefrom, without prejudice to any remedies
which might otherwise be used for arrears of rent. In the event of any
termination of this Lease under the provisions of Subsection 17.1 hereof
or if Landlord shall re-enter the demised premises under the provisions of
this Section 17.2 or in the event of the termination of this Lease (or of
re-entry) by or under any summary process or other proceeding or action or
any provision of law, Tenant shall thereupon pay to Landlord the minimum
monthly rent, additional rent and any other charge payable hereunder by
Tenant to Landlord up to the time of such termination of this Lease, or of
such recovery of possession of the demised premises by Landlord, as the
case may be.
----------------------------------------------------------------------------------------------------------------------- |
|
SECTION EIGHTEEN
|
|
DAMAGES
|
| 18.1 Damages
in the Event of Termination. In the event of any
termination of this Lease under the provisions of Subsection 17.1 hereof
or if Landlord shall re-enter the demised premises under the provisions of
Subsection 17.2 hereof or in the event of the termination of this Lease
(or of re-entry) by or under any summary process or other proceeding or
action or any provision of law, Tenant will pay to Landlord as liquidated
current damages sums equal to the aggregate of the minimum monthly rent
and the additional rent which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so re-entered the demised
premises, payable upon the due dates therefor specified herein following
such termination or such re-entry and until the date hereinbefore set for
the expiration of the then current term; provided, however, that if
Landlord shall re-let the demised premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such re-letting the
expenses incurred or paid by Landlord in terminating this Lease or of
re-entering the demised premises and of securing possession thereof, as
well as the expenses of re-letting, including brokers' commissions and all
other expenses properly chargeable in connection with such re-letting.
------------------------------------------------------------------------------------------------------------------------ |
|
SECTION NINETEEN
|
|
MISCELLANEOUS
|
| 19.1 Non-Interference
with Landlord's Entry and Repairs. Landlord reserves the right,
and without liability to Tenant for any compensation or reduction of rent
by reason of inconveniences or annoyance or for loss of business arising
therefrom, to enter the demised premises for any of the purposes in this
Lease authorized, or for repairing the demised premises however the
necessity may occur. In case Landlord is prevented or delayed from making
any repairs, or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's
control, Landlord shall not be liable to Tenant therefor, nor shall Tenant
be entitled to any abatement or reduction of rent by reason thereof, nor
shall the same give rise to a claim in Tenant's favor that such failure
constitutes actual or constructive eviction from the demised premises or
any part thereof, provided, however, no duty or obligation of Landlord
shall be implied by reason of any rights of access set forth in this
Section 19 or elsewhere in this Lease.
|
| 19.2 Reasonable
Right of Entry by Landlord. Tenant agrees to permit
Landlord and Landlord's agents to examine the demised premises at
reasonable times during working hours and, if Landlord shall so elect, to
make any repairs or replacements Landlord may deem necessary, and to show
the demised premises to prospective purchasers and mortgagees at
reasonable times during working hours and to prospective tenants. Under
emergency circumstances, Landlord shall have the right of entry at any
time.
----------------------------------------------------------------------------------------------------------------------- |
| 19.3 Restrictions
on Floor Load. etc. Tenant covenants and agrees not to
place a load upon the demised premises exceeding the live load for which
the floors have been designed; and not to move any safe, vault or other
heavy equipment in, about or out of the demised premises except at
Tenant's expense and in such manner and at such time as Landlord shall in
each instance authorize.
|
| 19.4 Property
Damage. Tenant covenants and agrees that all equipment, furniture,
fixtures, leasehold improvements and property of every kind, nature and
description of Tenant or Tenant's employees, agents, contractors,
invitees, customers, visitors or guests which may be in or upon the
demised premises, or on the sidewalks, parking areas and approaches
adjacent thereto, shall be at the sole risk and hazard of Tenant, and that
if the whole or any part thereof shall be damaged, destroyed, stolen or
removed by reason of any cause or reason whatsoever including leakage of
water, whether or not attributable in whole or in part to negligence of
Landlord, no part of said damage or loss shall be charged to or borne by
Landlord.
|
| 19.5 Tenant
Payment of Personal Property Taxes. Tenant covenants and agrees to
pay promptly when due all taxes which may be imposed upon personal
property (including, without limitation, fixtures and equipment) in the
demised premises to whomever assessed.
|
| 19.6 Limitation
on Landlord's Liability. etc. Neither Landlord nor any individual
or entity affiliated with Landlord shall be personally liable for any
obligations to Tenant or anyone claiming by, through, or under Tenant, and
Tenant shall look solely to Landlord's interest in the demised premises
(but no other assets) in pursuit of any claims or remedies.
|
| 19.7 Financial
Statements. Tenant shall provide to Landlord on request financial
statements and such other information as may be requested by any Mortgagee.
----------------------------------------------------------------------------------------------------------------------- |
| 19.8 Estoppel
Certificates. Within ten (10) business days after receipt
of a request from Landlord or Tenant, the other party agrees to deliver to
any perspective purchaser or other person specified in the request an
estoppel certificate in such form as the purchaser, Mortgagee or other
person may reasonably request. Each estoppel certificate will be (i)
signed by a duly authorized representative of Tenant or Landlord as the
case may be, (ii) delivered without charge to the party requesting it, and
(iii) binding as to its contents on Tenant or Landlord as the case may be.
|
| 19.9 Rules
of Construction. It is expressly agreed between the parties hereto
that:
|
| (a)
Unless the context otherwise provides it shall not be necessary that
Landlord demand the performance of this Lease by Tenant.
|
| (b)
Any rule of law or equity to the contrary notwithstanding, time shall be
construed to be of the essence hereof wherever any act hereunder is
required to be done at a certain time or within a prescribed period of
time.
|
| (c)
This Lease and any exhibits or memoranda attached hereto set forth all the
promises, agreements, conditions and understandings, either oral or
written, between the Landlord and Tenant.
|
| (d)
No subsequent alteration, amendment, change or addition to this Lease
shall be binding upon Landlord or Tenant unless reduced to writing and
executed by Landlord and Tenant.
------------------------------------------------------------------------------------------------------------------------ |
| (e)
The marginal headings preceding the text of the several sections and
subsections hereby are inserted solely for the convenience of reference
and shall not constitute a part of this Lease nor shall they affect its
meaning, construction or effect.
|
| (f)
If, in any respect, any provision of this Lease, in whole or in part,
shall prove to be invalid for any reason, such invalidity shall only
effect the part of such provision which shall be invalid and in all other
respects this Lease shall stand as if such invalid provision had not been
made, and it shall fail to the extent, and only to the extent, of such
invalid provision, and no other portion or provision of this Lease shall
be invalidated, impaired or effected thereby.
|
| (g)
Landlord and Tenant shall cooperate with each other to the extent
necessary to permit either, under and subject to the terms of the Lease,
to carry out any obligation or take any authorized action in the name of
the other.
|
| (h)
Unless the context otherwise requires, the term "rent" shall
mean and include the minimum monthly rent and all additional rent and
other charges for recovery of which Landlord shall have the remedies
provided in this Lease for nonpayment of minimum rent.
|
| (i)
Whenever in this Lease, nouns or pronouns are used in the masculine, they
shall be read and construed in the feminine or neuter whenever they would
so apply, and wherever in this Lease, words, including pronouns, are used
in the singular or plural, they shall be read and construed in the plural
or singular, respectively, wherever they would so apply.
----------------------------------------------------------------------------------------------------------------------- |
| 19.10 Waiver.
No waiver or failure to complain of any act or omission by either party of
any of the terms, covenants, provisions, and conditions required by this
Lease, and no waiver of any legal or equitable relief or remedy shall be
implied by the failure of either party to assert any of its rights, or to
declare any forfeiture or for any other reason, and no waiver of any of
said terms, provisions, and covenants shall be valid unless it shall be in
writing signed by both parties hereto.
|
| 19.11 Governing
Law. This Lease shall be governed by the laws (without reference
to choice of law rules) of the Commonwealth of Massachusetts.
|
| 19.12 Guaranty.
This Lease is guaranteed by that certain written Guaranty of even date and
executed by Ventures-National, Inc. in favor of Landlord as security for
the performance of all obligations by Tenant under this Lease. Tenant
acknowledges that both the Lease and the Guaranty constitute collateral
under two certain Collateral Assignments of Leases and Rents by Tenant to
Eastern Bank each dated May 13, 1999, and recorded with the Essex South
District Registry of Deeds in Book 15671, Page 539 and Book 15671, Page
568, respectively.
|
| 19.13 Covenants.
Each party's covenants and duties set forth in this Lease shall be deemed
independent of the others, and enforceable in accordance with their terms,
the failure of the other to perform or observe its duties and covenants
notwithstanding.
|
|
SECTION TWENTY
|
|
OPTION TO PURCHASE
|
| 20.1
Tenant has the option to purchase the demised premises (the
"Option") upon the terms and condition set forth below:
---------------------------------------------------------------------------------------------------------------------- |
| (a) The
Option is exercisable by written notice (in accordance with section 13.1
of this Lease) given by Tenant to Landlord (the "Exercise
Notice") and the closing shall occur on a date and at a time set
forth in the Exercise Notice (the "Closing"), provided that
Tenant is not then in default under this Lease. The Closing shall be no
sooner fifteen (15) days or later than thirty (30) days after the date of
the Exercise Notice, but in no event later than June 30, 2004, unless
extended as provided in 20.1(d) below. The Closing shall occur at the
Essex South District Registry of Deeds.
|
| (b)
The purchase price for the demised premises shall be $2,000,000 plus the
balance due (but not to exceed $190,000) to SBA re loan (#1450643009) to
EMC and secured by ▇▇▇▇▇ assets.
|
| (c)
If the Option is exercised, the demised premises shall be conveyed by a
good and sufficient deed in appropriate form running from Landlord to
Tenant at the Closing (the "Deed"). The Deed will convey good
and clear record and marketable title to the demised premises subject only
to (i) provisions of existing building and zoning laws, (ii) real estate
taxes for the then current fiscal year as are not due and payable on the
date of the delivery of the Deed, (iii) any liens for municipal
betterments assessed after the date of the Exercise Notice, and (iv)
easements, restrictions and reservations of record, if any, so long as the
same do not prohibit or materially interfere with the current use of the
demised premises. Tenant shall pay for and provide its own title
certificate and owner's and lender's title insurance policies, if any.
Tenant shall also pay the recording costs associated with the recording of
the Deed and for any documents not required to be paid for by Landlord.
Landlord shall pay for the tax stamps and the recording costs of any
instrument necessary to be recorded in order to comply with the title
provisions of this paragraph. The purchase price shall be paid at the
closing in cash, or by bank cashier's check payable to Landlord or by wire
transfer to Landlord' s account. All real estates taxes, water and sewer
charges, minimum and additional rent and fuel costs and all other charges
due under the Lease shall be paid by Tenant prior to the Closing.
---------------------------------------------------------------------------------------------------------------------- |
| (d)
Full possession of the demised premises, except for Tenant, is to be
delivered at the Closing. If Landlord shall be unable to give title or to
make conveyance, or to deliver possession of the demised premises, all as
herein provided, or if at the Closing the demised premises do not conform
with the provisions hereof, then Landlord shall use reasonable efforts to
remove any defects in title, or to deliver possession as provided herein,
or to make the demised premises conform to the provisions hereof, as the
case may be, in which event Landlord shall give written notice thereof to
Tenant at or before the Closing, and thereupon the time for performance
shall be extended for a period of thirty (30) days, but in no event later
than July 30, 2004, provided that Landlord is not obligated to spend more
than $1,000.00 to remove defects in title or make the demised premises
conform. If at the expiration of the extended time, Landlord shall have
failed to so remove any defects in title, deliver possession, or make the
demised premises conform, then Tenant may terminate its exercise of the
Option. Tenant shall have the election, at either the original or any
extended time for performance, to accept such title as Landlord can
deliver to the demised premises in their then condition and to pay
therefore the purchase price without reduction, in which case Landlord
shall convey such title.
----------------------------------------------------------------------------------------------------------------------- |
| (e)
Notwithstanding any provision of this Lease to the contrary, if any damage
occurs to the demised premises from any cause whatsoever after the date of
the Exercise Notice and prior to the Closing, Tenant shall fulfill its
obligation to purchase the demised premises without a reduction in the
purchase price.
|
| (f)
To enable Landlord to make conveyance as herein provided, Landlord may, at
the Closing, use the purchase money or any portion thereof to clear the
title of any encumbrances or interests, provided that all instruments so
procured are recorded within a reasonable amount of time after delivery of
the Deed.
|
| (g)
If Tenant terminates its exercise of the Option for any reason, or if the
Option shall lapse for any reason, then the term of this Lease shall
promptly terminate.
|
|
SECTION TWENTY ONE
|
|
RIGHT OF FIRST REFUSAL
|
| In
consideration of this Lease of the demised premises, Landlord hereby
grants to the said Tenant a Right of First Refusal in the event that
Landlord decides to sell the premises during the term of this Lease.
Landlord agrees that, if it decides to sell said premises, it will provide
Tenant with written notice of the proposed sale together with a copy of an
executed Purchase and Sale Agreement executed by Landlord and the proposed
buyer, setting forth the terms of the proposed sale and further setting
forth the fact that said proposed sale is specifically subject to the
exercise by Tenant of its Right of First Refusal.
|
| Upon
receipt of the written documentation described above, Tenant shall have
seven (7) days in which to send written notice of its decision to exercise
its right to purchase the premises and, if it decides to do so then it
shall have an additional twenty-one (21) days in which to close on the
purchase of the premises.
|
| Tenant
understands that this Right of First Refusal will not be recorded at the
Registry of Deeds at any time. It is specifically intended that this Right
of First Refusal be limited to Tenant only and not extend to its
successors or assigns.
|
| All
notices required to be given or delivered by either party shall be
completed in accordance with section 13.1 of this Lease.
|
| IN
WITNESS WHEREOF, the respective parties hereto have caused these presents
to be signed and sealed in duplicate on the day and year first above
written.
|
| Landlord:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Tenant TITAN PCB EAST, INC.
/s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
|
EXHIBIT A Legal Description of Property
Parcel I - One Industrial Way: The land in Amesbury, being shown as Lot 9A on a plan entitled "Plan of Land in Amesbury, Mass., County of Essex, for Amesbury Industrial Foundation Incorporated, Scale 1" = 40', August 2, 1983", said plan being recorded in the Essex South District Registry of Deeds and said lot being more particularly bounded and described as follows: Beginning at a point on Monroe Street and at land, now or formerly of ▇▇▇▇▇▇ ▇▇▇▇▇; thence running along Monroe Street and Industrial Way on an arc with a radius of25 feet for a distance of 39.73 feet to a drill hole; thence running along Industrial Way on an arc with a radius of 507.67 feet for a distance of 144.43 feet to a drill hole; thence running SOUTH 19(degrees) 4' ▇▇" ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ 268.00 feet to a drill hole at Lot 9B as shown on said plan; thence turning and running SOUTH 70(degrees) 55' 25" West along Lot 9B, 190.14 feet to a drill hole at land now or formerly of ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; thence turning and running NORTH 6(degrees) 21' 35" West along land now or formerly of ▇▇▇▇▇▇▇▇ 54.72 feet to a drill hole; thence turning and running SOUTH 82(degrees) 51' 10" West along land now or formerly of ▇▇▇▇▇▇▇▇ 55 feet to a drill hole at land now or formerly of ▇▇▇▇ ▇▇▇▇; thence turning and running NORTH 23(degrees) 17' 25" West along land now or formerly of ▇▇▇▇ ▇▇▇▇ 94.50 feet to a drill hole; thence turning and running SOUTH 88(degrees) 46' 50" East along land now or formerly of ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 25 feet to a drill hole; thence turning and running NORTH 8(degrees) 5' 15" East along land now or formerly of ▇▇▇▇▇▇▇▇ 100 feet to a drill hole; thence turning and running ----------------------------------------------------------------------------------------------------------------------- NORTH 51(degrees) 57' 15" East along land now or formerly of ▇▇▇▇▇▇ ▇▇▇▇▇ 145 feet to a drill hole; thence running NORTH 53(degrees) 01' 35" East along land now or formerly of ▇▇▇▇▇ 25 feet to a drill hole; thence turning and running NORTH 36(degrees) 58' 25" West along land now or formerly of ▇▇▇▇▇ 140 feet to the point and place of beginning. Lot 9A contains 57,033 square feet more or less, according to said plan
Parcel II -Two Industrial Way (a) A certain parcel of land on the Easterly side of Industrial Way and the Southerly side of Monroe Street in Amesbury, Essex County, Massachusetts, being shown as Lot 1 on a plan entitled "Subdivision Plan, Amesbury Industrial Park in Amesbury, Massachusetts, prepared for Amesbury Industrial Foundation, Incorporated, Amesbury, Massachusetts, Scale 1" = 100', August 31, 1981, Revised October 6, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Inc." Said plan being recorded in Essex South District Registry of Deeds Plan Book 170, Plan 34. Beginning at a point on the Southerly side of Monroe Street and land now or formerly of ▇▇▇▇▇▇▇; thence running SOUTH 42(degrees) 13' 14" East along said land of ▇▇▇▇▇▇▇, 111.69 feet to a point; thence turning and running NORTH 48(degrees) 17' 35" East along said ▇▇▇▇▇▇▇ Land, 74.00 feet to a point at land now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; thence turning and running SOUTH 42(degrees) 47' 10" East along land now or formerly of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 186.18 feet to a drill hole; thence running SOUTH 45(degrees) 02' 15" East along land now or formerly of Cargocaire Engineering Corp., 21.82 feet to a drill hole; thence running SOUTH 42(degrees) 50' 55" East along land now or formerly of Cargocaire Engineering Corp., 168.41 feet to a point at Lot 2 as shown on said plan; thence turning and running SOUTH 70(degrees) 55' 25" West along said Lot 2,332.32 feet to a point on the Easterly side of Industrial Way; thence turning and running NORTH 19(degrees) 04' 35" West along the Easterly side of Industrial Way, 209.00 feet to a stone bound; thence running on a curve with a radius of 567.67 feet along the Easterly side of Industrial Way for a distance of 161.50 feet to a stone bound; thence running on a curve with a ----------------------------------------------------------------------------------------------------------------------- radius of 25.00 feet along the Easterly side of Industrial Way and the Southerly side of Monroe Street for a distance of 39.73 feet to a stone bound; thence running on a curve with a radius of 3,000 feet along the Southerly side of Monroe Street for a distance of 75.67 feet to the point and place of beginning. Said lot contains 2.168 acres, more or less, according to said plan The granted premises are also shown as Lot 1 on a plan entitled "Subdivision Plan, Amesbury Industrial Park in Amesbury, Mass., Prepared for Industrial Foundations:, dated May 28, 1979, Rev. August, 1979, by ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., H. ▇▇▇▇▇ ▇▇▇▇▇, Reg. Land Surveyor, recorded with Essex South District Registry of Deeds in Plan Book 160, Plan 46, and re-recorded in Plan Book 163, Plan 88
(b) The land in said Amesbury, Essex County, Massachusetts, being ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, dated May 28,1979 (Rev. Aug. 1979) recorded with Essex South Registry of Deeds in Plan Book 160, Plan 46, and re-recorded in Plan Book 163, Plan 88 Containing 2.478 acres, according to said plan |
|
EXHIBIT B The tenant, Titan PCB East, Inc. ("Titan"), would like to propose the following terms to Eastern Bank ("Eastern") of a 5-year lease: For the fiscal quarter March 2004 - May 2004 - $18,000/mth with no taxes/water/sewer amortization since we have paid our taxes thru June 30, 2004. For the fiscal quarter June 2004 - August 2004 - $26,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter September 2004 - November 2004 - $26,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter December 2004 - February 2005 - $27,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter March 2005 - May 2005 - $27,500/mth which would include $7,500/month towards taxes/water/sewer) For the fiscal quarter June 2005 - August 2005 - $28,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter September 2005 - November 2005 - $28,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter December 2005 - February 2006 - $29,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter March 2006 - May 2006 - $29,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter June 2006 - August 2006 - $30,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter September 2006 - November 2007 - $30,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter December 2007 - February 2008 - $31,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter March 2008 - May 2008 - $31,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter June 2008 - August 2008 - $32,000/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter September 2008 - November 2008 - $32,500/mth which would include $7,500/month towards taxes/water/sewer). For the fiscal quarter December 2008 - March 2009 - $32,500/mth which would include $7,500/month towards taxes/water/sewer).
|
|
EXHIBIT C
INVENTORY OF HAZARDOUS MATERIALS |