COMMONWEALTH OF MASSACHUSETTS

SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT
HAMPDEN, SS.

CIVIL ACTION NO. [4"

IRON DUKE BREWING LLC,

Plaintiff;
v.
WESTMASS AREA DEVELOPMENT
CORPORATION,
Defendant.
VERIFIED COMPLAINT
PARTIES
1. Plaintiff Iron Duke Brewing LLC ("Iron Duke") is a Massachusetts limited
liability
company with a principal office located at I00 State Street, Building 122

in Ludlow,

Massachusetts.
2. Defendant Westmass Area Development Corporation ("Westmass") is
a Massac

husetts

non-profit corporation with a principal office located at 255 Padgette Street

in Chicopee,

Massachusetts.
FACTS
3. Iron Duke is a craft brewery owned by Nicholas Morin ("Mr. Morin")

and Michael

Marcoux ("Mr. Marcoux") (collectively the "Owners").

4. In or around the autumn of 2012, Iron Duke began looking for a location

to set up its first

brewery and taproom.

5. Iron Duke considered several locations in Western Massachusetts, includi
ng

a warehouse

space located at 100 State Street, Stockhouse 122, Ludlow, Massachusetts

(the
"Premises"), a building within what is known as the Ludlow Mills Complex.
(Client Files/312875/0001/PLD/B0648711.DOCX;1)

6. The Owners worked with Kenneth Delude ("Mr. Delud

e"), the
of Westmass, and Edward Jodoin ("Mr. Jodoin"), Westmass's

Chief Executive Officer

property manager for the

Ludlow Mills Complex to discuss the possibility of leasing

the Premises for their

brewery

and taproom.
7. The Premises was in need of extensive renovations
.
8. Both Westmass and Iron Duke understood that it was
Iron Duke's desire to occupy the
Premises on a long term basis. This was particularly true
since the Premises was in need
of a gut-rehabilitation and extensive renovations in order to

be converted into usable

space and fitted as a brewery.

9. The Owners were understandably cautious about entering
into

a long-term lease because

Iron Duke was a new business. Still, Westmass assured Iron

Duke that it had a future at
the Ludlow Mills Complex and was a part of Westmass's 20

year plan for the space.

10. Iron Duke was clear with Westmass from the outset that
their business model was
twofold: the space would be used to produce beer for sale
and/or consu

mption off

premises, and that they also intended to provide beer for consu

mption on the premises as

part of a taproom.
11. The Owners elaborated to Westmass, specifically to Mr.

Delude and Mr. Jodoin, that

their business model was typical for the industry and includ

ed more than just beer taps

and a bar, but also live music, yoga sessions, and access to

local food provided by food

trucks.
12. This vision was integral to Iron Duke. In a mostly vacan
t and once-abandoned industrial
park, the viability of Iron Duke's business and their ability
their ability to supply food and live entertainment, in additi

to attract patrons hinged on

on to their craft beer.

{Client Files/312875/0001/PLD/B064871 I.DOCX;1}

13. Westmass, through Mr. Delude and Mr. Jodoin, not

only agreed to that business model,

they embraced Iron Duke's business plan wholeheartedly.

14. Mr. Delude and Mr. Jodoin regularly asked Iron Duke which

food trucks they had lined

up.
15. Westmass also told Iron Duke that the Ludlow Mills
Complex would not always be a
mostly-vacant industrial park; Westmass had developed

and submitted a twenty (20) year

plan to the Town of Ludlow for the Ludlow Mills Comp

lex in or around late 2010 or
early 2011 (the "Plan").
16. The Plan included development of a river walk and

public road that would run parallel

with the Chicopee River, development of public open space

and market-rate residences.

17. Mr. Delude assured the Owners that there was no chanc

e that the public road would

impact the Premises. Once the road was built, Westmass

intended to subdivide and sell
the parcels.
18. Based on the representation that the Premises would

not always be vacant and that an

opportunity to eventually purchase their space would arise,

the Premises appeared ideal

for Iron Duke's long-term success.

19. Westmass drafted a lease agreement, which the Partie
s signed on or

about December 13,

2013 ("Lease"). A true and accurate copy of the Lease is

attached hereto
20. Iron Duke was not represented by counsel during the

as Exhibit A.

Lease negotiation.

21. The Lease was for a term of three (3) years, with two
(2) options to extend
years.

{Client Files/312875/0001/PLD/B0648711.DOCX;1)

for an two (2)

22. Although the Lease was executed on December 13, 2013, the Lease provides that the
term commenced on November 1, 2013 and that the initial term would expire on October
31, 2016.
23. The Lease provided that the "Premises shall be used and occupied by Tenant [Iron

Duke]

solely for microbrewery business purposes which includes the production and sale of

beer

made at the premises for consumption within the Leased premises and for the sale of beer
for consumption off premises through any and all legal means but in no event on any
other portion and no other use or purposes whatsoever without the prior consent of
Landlord, which consent Landlord shall be entitled to withhold in its sole discretion."
24. The Lease does not define the term "microbrewery business purposes" and does not
specifically exclude activities that are necessarily incident to the operation of a
microbrewery business, such as live music, food truck presence, lawn games, or yoga.
25. The Lease also provided that "any option to extend the term of this Lease must be
exercised in writing at least six (6) months prior to the ending date of the then current
term. Provided the Tenant is not in default on the date of delivery of any such written
notice or on the last day of the then current term [sic] the term of this Lease shall be
extended upon all of the terms and conditions set forth herein without the necessity of
the
execution of any further document."
26. Because the Ludlow Mills Complex only contained one water meter, the Lease provided
that the water bills would be invoiced to Iron Duke "based on employee count divided
actual cost."
27. After execution of the Lease, the Owners invested significant time and money into
renovating the Premises into a taproom and brewery.

{Client Files/312875/0001/PLD/B064871I.DOCX;1}

by

28. Iron Duke provided Westmass copies of the extensive renovation plans, includin

g the

construction of a taproom and seating area for patrons.

29. Renovations to the space included, but were not limited to:
a. complete gut renovation of the existing space and fixtures;
b. complete retrofit and customization for the brewery and taproom;
c. installation of all bar hardware and equipment, including the installation of tap
lines and associated hardware;
d. installation of new utilities including water service, plumbing, sewer service;
e. extensive update of electrical wiring;
f. installation of restrooms facilities; and
g. new carpentry for partition walls to enclose restroom facilities, closet spaces, and
partial enclosure of other brewery spaces.
30. The value of the improvements made to the Premises is between five hundred thousand
dollars ($500,000.00) and six hundred thousand dollars ($600,000.00).
31. Much of that value rests in sweat equity: the Owners, who both had full-time jobs at the
time, worked tirelessly at the Premises for six (6) to eight (8) hours a day for
approximately one and a half (1 1
2
/) years designing and building out the Premises as their
brewery's first home.
32. The Owners undertook these activities after finishing a day's work at their full-time
jobs
and took out a $200,000.00 loan to finance the materials needed for the renovation and
the brewing and taproom equipment. That loan remains outstanding.
33. Iron Duke obtained a Common Victualer License to Expose, Keep for Sale, and to
Malt Beverages ("Pouring Permit") to be consumed on the site and a License for

{Client Files/312875/0001/PLD/B064871I.DOCX;1)

Sell

Innholders, Common Victuallers, and other Keepers of Restaurants and Other

Establishments for "live entertainment, recorded or live music, radio, and televisi

on" to

be conducted during regular business hours ("Entertainment License"). Iron

Duke's
capacity was limited to 75 patrons at a time by the Town of Ludlow. Its capacit
y was
increased to 99 patrons at a time on its 2017 Certificate of Inspection.
34. After over a year of hard work, Iron Duke opened its taproom doors for
the

first time in

November of 2014.
35. Iron Duke forged relationships with approximately eight (8) different local
and immediately implemented the business plan it had discussed with

food trucks

Westmass. One

Food truck was present during its regular business hours on Fridays, Saturda

ys, and

Sundays.
36. Similarly, Iron Duke fostered relationships with local musicians and has

hosted at least a

dozen (12) different live music events.

37. Like many other breweries, Iron Duke also hosts yoga sessions at the Premis

es.

38. The schedules for food trucks, live music, and yoga were all publically
shared on Iron
Duke's social media.
39. Throughout 2015 and until late 2016, Iron Duke operated its microb
rewery and taproom
as provided in the Lease without incident.
40. Mr. Delude and/or Mr. Jodoin visited the brewery and taproom when food

trucks were

present and never raised concerns with Iron Duke's business practices.
41. In April of 2016, the Owners notified Westmass in writing that it was exercis
ing its
option to extend the Lease for an additional two years.

tClienl Files/312875/0001/PLD/B0648711.DOCX;1)

42. In or around the spring of 2016, Mr. Jodoin ceased being the property manager. Mr.
Delude retired from his role as CEO shortly thereafter and Eric Nelson ("Mr. Nelson")
assumed the role of CEO.
43. After those corporate transitions, Westmass started challenge Iron Duke's business model
and began a campaign intended to constructively evict Iron Duke from the Premises.
44. In correspondence dated August 11, 2016, Westmass asserted that the Lease did not
allow for Iron Duke to host food trucks and/or live music, among other demands. A true
and accurate copy of this correspondence is attached hereto as Exhibit B.
45. Westmass unilaterally made these legal conclusions without any citation to law and in
absolute contradiction to the plain wording of the Lease, which specifically permits the
operation of "microbrewery business" on the premises.
46. In an effort to compromise with Westmass, Iron Duke offered to meet some of
Westmass's demands, despite Westmass's lack of legal basis to make such demands.
47. Iron Duke continued to negotiate with Westmass to reach a good faith resolution of their
differences in meetings and written correspondence, despite Westmass's brazen refusal to
negotiate. True and accurate copies of letters from Westmass dated September 19, 2016
and October 27, 2016 are attached hereto as Exhibit C and Exhibit D, respectively.
48. Shortly thereafter, on October 31, 2016 Iron Duke reminded Westmass of its intent to
exercise its option.
49. After the parties were unable to resolve their differences, on November 29, 2016,
Westmass sent Iron Duke a Notice of Default under the Lease, alleging that the presence
of food trucks and live musical entertainment, and activities that create the need for

[Client Files/312875/0001/PLD/B0648711.DOCX;I }

additional parking created occupancy violations ("November 29 Notice

"). A true and

accurate copy of this correspondence is attached hereto as Exhibit

50. Even though the Lease provides that Iron Duke is to pay its pro

E.

rata share of the water

and Westmass had invoiced Iron Duke in that manner for the first

two years of the Lease,

Westmass had a separate water meter installed for Iron Duke in or

around March of 2015.

51. After installing a separate water meter, Westmass began deman

ding that Iron Duke pay

the actual water usage based on the secondary meter that Westmass
installed.
52. Iron Duke contested Westmass's assertion that it was obliga
ted to pay the actual water
usage, relying on the language of the Lease. Iron Duke indicat
ed that, upon receipt of an
invoice which calculates the amount due and payable for water based

on the formula set

forth in the Lease, it would remit payment for those utilities.

53. In response, Westmass sent another Notice of Default on or

about December 29, 2016

("December 29 Notice"). A true and accurate copy of this corresp

ondence is attached
hereto as Exhibit F.
54. Although very similar to the November 29 Notice, the Decem

ber 29 Notice also asserts

that Iron Duke was in default because it insisted that the water

invoice be calculated

pursuant to the formula set forth in the Lease.

55. Iron Duke responded to Westmass on January 9, 2017 as a follow

up to an in person

meeting which occurred on January 4, 2017 and in response to

the Decem

ber 29 Notice.

A true and accurate copy of this correspondence is attached hereto

as Exhibit G.

56. In that correspondence, Iron Duke communicated that it had

addressed all defaul

t issues

that were set forth in the December 29 Notice and maintained that
its live enterta

inment

is not a violation of the Lease and therefore, that Iron Duke intend

ed to continue to

{Client Files/312875/0001/PLD/B064871I.DOCX; 1)

provide entertainment to its patrons in a manner consistent

with its Entertainment

License.
57. Despite the fact that the presence of live music falls well
within the bounds of operating a
taproom, a Permitted Use under the Lease, Westmass sent
Iron Duke

a letter dated

January 12, 2017 demanding that Iron Duke cancel a live perfor

mance scheduled for

January 14, 2017 or Westmass would deem Iron Duke in contin

accurate copy of this correspondence is attached hereto as

uing default. A true and

Exhibit H.

58. In a show of good faith and in an effort to avoid immediate

confrontation, Iron Duke

cancelled the scheduled the January 14, 2017 live music perfor

mance.

59. Iron Duke has suffered significant damages to its busine

ss, amounting to at least a one-

third reduction in sales, each and every night there is no food truck
present on the
Premises. The taproom's occupancy is reduced by two-thirds
each night that there is no
live music present on the Premises.
60. These reductions in sales and patronage are crippling:

although Iron Duke distributes its

beer to a handful of small local businesses, the majority of its

revenue comes from

operation of the taproom.

61. Its continued viability as a business hinges on the availa

bility of food trucks and live

entertainment in the taproom.

62. Although the Owners initially worked full time while opera
ting Iron Duke, they left their
other careers in order to work at the brewery and taproom fill-tim
e.
63. The popularity of the brewery and taproom among the

local community were based, in

part on these business practices and Westmass's blanket prohib

ition on food trucks and

{Client Files/312875/0001/PLD/B0648711.DOCX }

live entertainment have harmed Iron Duke's goodwill and reputation

with its patrons and

in the greater craft brewing community.

64. The Ludlow community has shown its support for Iron Duke and

a petition has been

circulated demanding that Iron Duke not be evicted from the Premis

es, garnering nearly

two thousand five hundred (2,500) signatures in the first twenty-four

(24) hours.

COUNTI
Declaratory Judgment
65. Iron Duke repeats and re-alleges Paragraphs 1 through 64 of this

Verified Complaint as

if fully set forth herein.

66. An actual and justiciable controversy exists between Iron Duke
67. This controversy necessitates a declaratory judgment pursuant

and Westmass.

to M.G.L. c. 231A, 1 and

Mass. R. Civ. P. 57 to determine the rights and duties of the parties

, specifically that:

a. the Permitted Use as set forth in the Lease allows Iron Duke to
operate a taproom,
host food trucks on the Premises, and host live entertainment on the
Premises and
therefore such activities do not constitute a breach of the Lease; and
b. the Lease requires Westmass to calculate and invoice
Iron Duke's water
obligations based their employee count divided by actual cost.
68. Iron Duke contends that the operation of a taproom, hostin
g of food trucks, and live
entertainment all fall within the operation of a "microbrewery

business" and, as such, is a

Permitted Use under the Lease.

69. The term "microbrewery business" is not defined by the Lease.
70. Iron Duke further contends that it is entitled to calculation of
its water obligations based
on employee count divided by actual cost, as set forth in the Lease.

{Client Files/312875/0001/PLD/B0648711.DOCX;1}

10

71. Iron Duke will suffer irreparable harm if the operation of a taproom
, hosting of food
trucks, and hosting of live entertainment do not fall within the
"Permitted Use" of the
Lease because it chose its location, invested significant assets
and built its brand,
business model, and reputation in the community based entirely on
the availability of
these activities for their space.
72. In short, finding that Iron Duke's "Permitted Use" excludes
food trucks and live
entertainment would put them out of business.
COUNT II
Breach of Contract
73. Iron Duke repeats and re-alleges Paragraphs I through 72 of this

Verified Complaint as if

hilly set forth herein.

74. Iron Duke and Westmass entered into a valid and enforceable Lease

in December of

2013.
75. The Lease provides that Westmass shall invoice Iron Duke for
water utilities "based on
employee count divided by actual cost."
76. Despite its obligation to use the above-referenced calculation under
refused to issue an invoice to Iron Duke for the amount owed, as

the Lease, Westmass

calculated under the

Lease.
77. Instead, Westmass installed a separate water meter for Iron Duke
and unilaterally insisted
that Iron Duke pay its water utility based on the meter reading, despite

the Lease's clear

language that mandates a calculation based on employee count divided

by actual cost.

78. When Iron Duke indicated that Westmass's demands were inconsistent
with Iron Duke's
obligations under the Lease, Westmass issued a Notice of Default.
79. Westmass's actions constitute a breach of the Lease.
{Client Files/312875/0001/PL1313064871 I.DOCX;I }

11

80. Iron Duke has been harmed as a result of this breach in

an amount to be determined.

COUNT III
Breach of the Covenant of Good Faith and Fair Dealing
81. Iron Duke repeats and re-alleges Paragraphs 1 through
80 of this Verified Complaint as if
fully set forth herein.
82. Iron Duke and Westmass entered into a Lease.
83. Westmass had an obligation to act in good faith with respec

t to the Lease.

84. Iron Duke was clear in its communications of what

constituted a "micro

brewery

business" and that food trucks and live entertainment were

part and parcel with the
operation of such a business.
85. Westmass was aware of and sanctioned those activities
prior to entering
86. Iron Duke relied on those representations in choosing the

into the Lease.

Premises as its site, in crafting

its business plan, and ultimately in deciding to enter into the

Lease.

87. Westmass breached its obligation to act in good faith

when it improperly interfered with
Iron Duke's microbrewery business by prohibiting the presen

ce of food trucks and live

entertainment on the premises, despite the fact that it knew

that those activities were an

integral part of Iron Duke's microbrewery business, which

includes a taproom.

88. Westmass further breached its obligation to act in good

faith when it
terms of the Lease and used another method for calculating

disregarded the

Iron Duke's portion of the

water utility, even though the Lease clearly provides that the

water utility calculation

shall be "based on employee count divided by actual cost."

89. Even though the method applied by Westmass is incons
istent with the Lease's prescribed
method for calculating the water utility, Westmass refused
to
invoice, and instead issued a Notice of Default.
{Client Files/312875/0001/PLD/B064871I.DOCX;I)

12

make adjustments to the

90. Westmass's conduct deprived Iron Duke from receiving the

benefits

of the Lease.

91. As a result of Westmass's conduct, Iron Duke has experie

nced a drastic decrease in sale

and patronage, and was harmed.

COUNT IV
Unjust Enrichment
92. Iron Duke repeats and re-alleges Paragraphs 1 through 91
of this Verified Complaint as if
fully set forth herein.
93. Iron Duke invested approximately $600,000 in substantial

improvements to the Premises

with the understanding that it would be permitted to conduct its

business consistent with

the Lease, and that it would be permitted to exercise its option

s to extend the Lease and

operate for a period of time substantially longer than the origina

l term of the Lease.

94. Iron Duke did not intend for Westmass to receive the benefi

ts of its improvements to the

Premises.
95. Should Iron Duke not be permitted to remain on the Premis

es due to Westmass's newly

implemented and one-sided interpretation of the "Permitted Use"

of the Premises, which

is contrary to the Lease, Westrnass will receive a substantial benefi

t for which the Parties

did not bargain.

96. Westmass's retention of the value of Iron Duke's improvement

s under these

circumstances is unjust and inequitable, and therefore, Westm

ass must make restitution to

Iron Duke for the value of the benefit received.

COUNT V
Injunctive Relief
97. Iron Duke repeats and re-alleges Paragraphs 1 through 96 of this
fully set forth herein.

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13

Verified Complaint as if

98. Westmass must be enjoined from further interfering with Iron

Duke's

microbrewery

business by prohibiting the presence of food trucks and/or live enterta

inment on the

Premises.
99. In addition to suffering substantial monetary losses associated

with the decrease in sales

and patronage, Iron Duke will also suffer irreparable harm if an injunct

ion is denied,

because it built its brand, business model, and its goodwill and reputa

tion in the

community rely on the availability of these activities for their space.

100.

There is a strong likelihood that Iron Duke will prevail on the merits of

101.

Balancing the equities weighs heavily in favor of Iron Duke without any

its claims.

substantial harm to Westmass.

WHEREFORE, for the foregoing reasons Plaintiff Iron Duke Brewing,

LLC respectfully

requests that this Honorable Court find in its favor as to all counts
of this Verified Complaint,
award attorney's fees and costs, and grant such other and further relief
in law or in equity as this
Court deems just and appropriate.

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14

IRON DUKE BREWING LLC

By Its Attorneys,

AiVi Nguyen ( O #675319)

Jennifer Gamer BO #688754)
BOWDITCH & DEWEY, LLP
311 Main Street
P.O. Box 15156
Worcester, MA 01615-0156
Telephone: 508-926-3402
Facsimile: 508-929-3023
E-mail: anguyen@bowditch.com
jgamer@bowditch.com

Date: January 20, 2017

{Client Files/312875/0001/PLD/B0648711.DOCX;1)

15

VERIFICATION
I, Nicholas Morin, having read the foregoing Verified Complaint, hereby verify
personal knowledge and in my capacity as Manager of Iron Duke Brewing

on my

LLC, make oath that

the facts recited therein are true and correct to the best of my knowledge and

that no material

facts have been omitted.

Signed under the penalties of perjury on this 20th day of January, 2017.

Nicholas Morin
Manager
Iron Duke Brewing LLC

EXHIBIT A

LEASE AGREEMENT
This Lease Agreement (this "Lease") is made and entered
into as of l4 vem ea 13441
_
2013, by and
between Landlord and Tenant. The Lease consists of the followin
g Schedule, Terms and Conditions, Exhibit(s) and
Rider(s) (if any) referenced herein. Execution of this Lease
shall terminate the existing Lease between the Landlord and
Tenant for Building #122 dated July 29, 2013.

SCHEDULE
For purposes of this Lease, the following terms shall have the

following meanings:

"Landlord":

WESTMASS AREA DEVELOPMENT CORPORATION

Federal Employers Identification Number: 04 6057343
Address:
255 Padgette Street
Chicopee, MA 01022
Attention:
Kenneth W Delude, President
Phone:
413-593-6421
Fax:
413-593-5126
Email:
k.delude@westmassdevelopment.com
Copy to:
A. Craig Brown, Esq.
Phone:
413-733-3111
Email:
acbrown@dwpm.com

"Tenant":

IRON DUKE BREWING LLC

Federal Employers Identification Number: 90-0916610
Address:
100 State Street
PO Box 402
Building 122
Attention:
Nicholas Morin
Phone:
413-624-6258
Fax:
Email:
nick@irondukebrewino.com
Copy to:
Michael Marcoux
Phone:
413-883-8041
Fax:
Email:
MikeM@irondukebrewing.com

523376.3

"Guarantor":

Westmass Area Development Corporation

"Land":

Parcel of land which is commonly known as 100 State Street Building

#122, Ludlow,
Massachusetts upon which the Building is located (the "Land").

"Building":

The Building known as Building No. 122, approximately 3,000 sf. in area
and located upon the
Land, within which the premises are located.

"Premises":

The space within the Building leased by the Landlord to the Tenant which
is approximately
3,000 sf. pursuant to this Lease, as more particularly described on Exhibit
A, which is attached
hereto and made a part hereof. In addition to the building area, this Lease
shall include an
exterior area of approximately 300 sf. to be used for the placement of
brewing equipment
along with 10 parking spaces to be used "in common" in an existing parking
lot located north
of Westmass' Ludlow Mills Office (Bldg. #123A) and 10 "exclusive" parking
spaces to be
constructed by the Landlord in the spring of 2014 located east of Bldg. #122
and adjacent to
the existing access way as shown on Exhibit A or as otherwise approved
by the Town of
Ludlow.
At any point during this lease, if parking in excess of what is herein provided
by the Landlord
is required it shall be discussed among the Parties in advance and will
be paid for in a
mutually acceptable manner.

"Lease Term":

3 years with two-2 year options plus annual CPI increases

"Base Rent":

The initial "Base Rent" shall be at a rate of $3.00 per sf. in the first year
for the building area
and at a rate of $1.00 per sf. for the first year for the exterior brewing
equipment area.
Month(s) of 36
Lease

"Commencement
Date"

Annual
Base Rent

Nov. 1, 2013-Feb. 28, 2014

$0

Mar. 1, 2014-Oct. 31, 2014

$9,300

Monthly
Base Rent
$0
$775.00

November 1, 2013

"Common Areas": Those areas within the Building and those portions of
the Land located outside of the Premises
that are provided and designated for the general use and convenience of the
Tenant and other
Tenants located within the Building, together with their respective employee
s, customers and
invitees. Common Areas include, without limitation, connector buildings, pedestria
n sidewalks,
landscaped areas, roadways, parking areas and railroad tracks, if any.
Landlord expressly
reserves the right from time to time to make changes in the shape, size, location,
number and
extent of the areas within the Building, those portions of the Land
and any other
improvements that constitute the Common Areas provided such changes do
not interfere with
the tenant's usable space and enjoyment of the leased premises. Landlord
may designate
from time to time additional parcels of land for use as part of the Common
Areas, and any
such additional land so designated by Landlord for such Common Area use
shall be included
until such designation is revoked by Landlord. The location of the Common
Areas that are
outside of the Building is shown on Exhibit B, which is attached hereto
and made a part
hereof.
Delivery Date
523376.3

November 1, 2013
-2-

Expiration Date

October 31, 2016

Base Rent
Commencement
Date:

March 1, 2014

Tenant Additional
Rent:

Electricity and heating fuel costs for heating season 2013. Tenant
to secure and
pay for its own utilities including but not limited to: electricity, heating
fuel from
2013/2014 heating season and beyond, Phones, data and other.

Water: As Invoiced

Invoiced annually: rate is based on employee count divided by actual

cost

Sewer: As Invoiced

Invoiced annually: rate is based on employee count divided by actual

cost

Electrical as invoiced

Sub-metered by Westmass and invoiced monthly. The sub-meter

shall measure the
electric usage of the premises. In the event that building 222 is leased
by Westmass to an
unrelated entity then an additional sub-meter will be installed to provide
separate
readings.

by agreed amount or
sub metered
"Permitted Use":

The Premises shall be used and occupied by Tenant solely for

microbrewery business
purposes which includes the production and sale of beer made at
the premises for
consumption within the Leased premises and for the sale of beer
for consumption off
premises through any and all legal means but in no event on any other
portion of the
Ludlow Mills property and no other use or purposes whatsoever without
the prior consent
of Landlord, which consent Landlord shall be entitled to withhold in
its sole discretion.

"Security Deposit":

In the amount of $750.00, as previously paid on August 1, 2013.

"Tenant's Broker":

None

"Lease Year":

A period of twelve (12) consecutive calendar months during the Term

(including any
Extension Term), beginning on the Base Rent Commencement Date, if on
the first day of
the calendar month, or on the first day of the calendar month following
the Base Rent
Commencement Date, if the Base Rent Commencement Date falls on a
day other than the
first day of a calendar month.

"Partial Lease Year":

The period, if any, of fewer than twelve (12) consecutive calendar

months during the
Term, beginning on the Base Rent Commencement Date, if
the Base Rent
Commencement Date falls on a day other than the first day of a calendar
month until the
first day of the first Lease Year.
A - Location of Premises within Building
B - Location of Common Areas Outside of Building
C - Commencement Date Agreement
D - Estoppel Certificate
E - Condition of the Premises
F - Landlord's Work Rider NONE
G - Exdusivity Clause

EXHIBITS:

523376.3

- 3-

IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease

in multiple original counterparts as of the
date written above.
LANDLORD:

TENANT:

WESTMASS j A DEVELOP ENT CORPORATION

IRON DUKE BREWING LLC

By:
By:

Da

"/

4/4>c

7)

Its.

Z. 3

Date'

f 2 A,

By:
Its:
Date:

END OF SCHEDULE

523376.3

-4 -

TERMS AND CONDITIONS

1.

LEASE OF PREMISES.

(a)
Demise. Subject to the covenants, terms, provisions and condition
s of this Lease,
Landlord leases to Tenant the Premises.
(b)
Term. The Term shall commence on the Commencement Date and
shall expire on the
Expiration Date. Within thirty (30) days after the actual Commen
cement Date has been ascertained, Landlord will
deliver to Tenant a Commencement Date Agreement in the form
attached as Exhibit C, that shall acknowledge said
actual Commencement Date and the actual Expiration Date, and
Landlord and Tenant shall execute the
Commencement Date Agreement within thirty (30) days of such
delivery. Any option to extend the term of this Lease
must be exercised in writing at least six (6) months prior to the ending
date of the then current term. Provided the
Tenant is not in default either on the date of delivery of any such written
notice or on the last day of the then current
term the term of this Lease shall be extended upon all of the terms
and conditions set forth herein without the
necessity of the execution of any further document.
(c)
Possession. Subject to the terms and conditions of this Lease, Landlord
agrees to deliver
possession of the Premises to Tenant. In no event shall Landlord be
liable to Tenant if Landlord is unable to deliver
possession of the Premises to Tenant for causes outside Landlord's reasonab
le control.
2.

RENT.

Rent. As used in this Lease, "Rent" shall mean Base Rent, Tenant
(a)
Additional Rent
Amount and all other fees, charges and amounts due from Tenant under
this Lease.
(b)
Base Rent. Commencing on the Base Rent Commencement Date
and continuing
throughout the Term, Tenant shall pay Base Rent in monthly installments in
advance on or before 5:00 p.m. Eastern
Time on the first day of each month of the Term. If the Base Rent
Commencement Date is not the first day of a
month, Tenant shall pay a proportionate part of the Base Rent for
the period beginning upon the Base Rent
Commencement Date and ending on the last day of the calendar month
in which the Base Rent Commencement
Date occurs.
(c)
Annual Increase in Base Rent. Landlord and Tenant agree that
the Base Rent shall be
increased each year during the Term of this Lease by an amount equal
to the product of the percentage increase in
the United States Department of Labor, Consumer Price Index, All Urban
Consumers, Boston (1984.400) (the "CPI")
during each lease year during the Term of this Lease times the then current
annual Base Rent. The product thereof
shall be added to the then current Base Rent to calculate the Base Rent
payable for the following lease year. This
calculation shall be made by the 15th day of the last month of each
lease year based upon the percentage increase
in the CPI from the beginning of such lease year through the 15th day
of the last month of such lease year or the
date closest to the 15th day of the last month of the lease year that the CPI
is published.
(d)
Tenant Additional Rent Amount. Commencing on the Tenant
Additional Rent Amount
Commencement Date, Tenant shall pay the Tenant Additional Rent Amount.
'Tenant Additional Rent Amount"
shall mean the payments required to be made by Tenant to reimburs
e Landlord for the cost of all electricity, water
and sewer usage by Tenant in connection with Tenant's use and occupanc
y of the Premises. Tenant Additional Rent
Amounts shall be payable directly by Tenant to the utility provider if metered
separately. If not metered separately,
Tenant shall be invoiced by Landlord for the Tenant Additional Rent
Amount attributable to Tenant's use and
occupancy of the Premises. Landlord shall be entitled to bill Tenant for Tenant
Additional Rent Amounts with the
same frequency with which Landlord receives bills for such services,
and Tenant shall pay all Tenant Additional Rent
Amounts invoiced by Landlord within Thirty (30) days following Tenant's receipt
of each such invoice from Landlord.
Landlord shall furnish to Tenant, upon request made by Tenant from time to
time during the Term of this Lease, with
documentary evidence of any Tenant Additional Rent Amounts that are payable by
Tenant to Landlord.
(e)
Payment of Rent. The following provisions shall govern the payment of
Rent: (i) Tenant
shall pay Rent to Landlord at Landlord's address described in the Schedule
(Attention: Premises Management), or to
523376.3
-5-

such other party or to such other address as Landlord may hereafter designate
by written notice to Tenant, (ii) if the
Term commences or ends on a day other than the first day or last day of
a calendar month, then Base Rent for the
month in which the Term so begins or ends shall be prorated based upon
the ratio that the number of days in the
applicable month which fall within the Term bears to the total number of
days in such month, (Hi) all Rent shall be
paid to Landlord without demand, offset or deduction, and the covenant
to pay Rent shall be independent of every
other covenant in this Lease, (iv) any Rent payment owed by Tenant to Landlord
which is not paid within (15) days
of the date when due (A) shall be subject to a late charge in the amount equal
to six (6) percent of the unpaid Rent
amount and (B) if any Rent payments remain unpaid for a period of (30)
days after the date when it is due, any
unpaid Rent shall bear Interest beginning upon the end of such (30) day period
at a rate ( "the Default Rate") equal
to (5%) percent above the prime rate of Interest announced from time
to time by Peoples Bank at its Holyoke ,
Massachusetts office (Prime rate), but in no event higher that the maximum
rate permitted by law. (v) each amount
owed to Landlord under this Lease for which the date of payment is not
expressly fixed shall be due on the same
date as the Rent listed on the statement showing such amount is due, and
(vi) Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease (regardless
of Tenant's designation of any contrary
application) to satisfy any obligations of Tenant hereunder, in such
order and amounts as Landlord in its sole
discretion may elect.
Base Rent Includes Real Estate Taxes. Landlord and Tenant acknowledge and
(f)
agree that
the Base Rent has been established at a level that reflects the real estate
taxes and assessments payable with
respect to the Premises, and Tenant shall not have any obligation pursuant
to this Lease to make any additional
payment on account of such real estate taxes.
Rent Absolute. Except as otherwise expressly provided in this Lease,
any damage or
destruction to all or any portion of the buildings, structures and fixtures
comprising the Premises, by fire, the
elements, or any other cause whatsoever, whether with or without fault on
the part of any Tenant Party, shall not
terminate this Lease or entitle Tenant to surrender the Premises or entitle
Tenant to any abatement or reduction in
Rent payable under this Lease, or otherwise affect the respective obligations
of the parties hereto. If the use of the
Premises for any purpose should, at any time during the Term, be prohibited
by Law or prevented by injunction, this
Lease shall not be thereby terminated, nor shall Tenant be entitled by reason
thereof to surrender the Premises, or
to any abatement or reduction in Rent, nor shall the respective obligations
of the parties hereto be otherwise
affected unless such eviction Is due to the act of Landlord or any person
or persons claiming any interest in the
Premises by or under Landlord: Landlord represents to Tenant that, as of the
Commencement Date of this Lease,
Landlord has no knowledge of any unrecorded restriction against the Premises
(other than any matters that may be
contained under applicable Laws, including without limitation applicable zoning
requirements, ordinances and other
governmental rules, regulations that may be in effect against the Premises)
prohibiting Tenant's right to use the
Premises for the Permitted Use.
3.

USE.

(a)
Limitation on Use. The Premises shall be used and occupied solely for the
Permitted Use.
Tenant shall not cause or permit the Premises to be used in any way which
(i) constitutes a violation of federal, state
or local law, statute, ordinance, code, rule, order or decree (individually,
a "Law" and collectively, the "Laws"), or
(ii) violates any private use covenants, conditions or restrictions of record or (H)
constitutes a nuisance or waste.
(b)
Operating Covenants. Tenant agrees to use the Premises for the Permitted
Use during
the Term. Tenant shall keep the Premises open for business during such hours
as are customary for and reasonably
determined by Tenant, except when prevented from doing so by strikes, fires,
casualties and other causes beyond
Tenant's reasonable control and except for reasonable periods during repairs
and alterations. Tenant shall not be
deemed to be in violation of the foregoing if the failure to use and operate
the Premises is due to repairs, alterations,
or renovations due to remodeling, or due to rebuilding and repairing due
to a casualty or condemnation. Landlord
and Tenant acknowledge and agree that the Permitted Use includes the sale
of beer and merchandise at the
microbrewery that will be operated by Tenant within the Premises ("the
Brewery"), induding the sale of beer for
consumption within the Brewery and the sale of beer for consumption off premises
through any and all legal means,
but in no event on any other part of the Ludlow Mills property. Tenant agrees
that in connection with Its use of the
Premises for the operation of the Brewery as part of the Permitted Use, Tenant
shall comply at all times with the
following:
523376.3

-6-

Tenant shall comply with all of applicable laws, statutes, ordinance

s and
regulations relating to the sale of beer for consumption within the premises
where such beer is sold and for
consumption at home, including without limitation all applicable requireme
nts of the License Commission for the
Town of Ludlow, Massachusetts and the Alcoholic Beverages Control
Commission for the Commonwealth of
Massachusetts;
Tenant shall periodically monitor and patrol the Common Areas surroundi
ng the
Premises for the purpose of ensuring that individuals who purchase beer from the
Brewery for consumption at home
do not consume such beer on any of the Common Areas;
(iii)
Tenant shall ensure at all times that the operation of the Brewery within
the
Premises does not interfere in any manner whatsoever with the use and
occupancy of other portions of the overall
premises of which the Premises; and
(iv)
Tenant shall comply with such additional reasonable rules and regulation
s
relating to the operation of the Brewery within the Premises as Landlord may
establish from time to time in order to
ensure that the operation of the Brewery within the Premises does not disrupt
or interfere with the overall operation
by Landlord of the premises of which the Premises are a part and/or the
use and enjoyment by Landlord's other
tenants of the space that such other tenants lease from Landlord and/or the Common
Areas.
(c)
Tenants Premises. With the exception of real estate taxes, Tenant shall pay
before
delinquency all taxes, assessments, license fees and public charges levied,
assessed or imposed upon its business
operation in the Premises as well as upon Tenant's Premises in or upon the
Premises. If any such items of Tenant's
Premises are assessed with Premises of Landlord, then such assessment shall
be equitably divided between Landlord
and Tenant on the basis of the relative fair market value of Tenant's
Premises included in such assessment as
compared to the fair market value of other Premises included in such assessme
nt.
(d)
Ouiet Enjoyment. As long as no Default exists beyond any applicable notice
and cure
period provided under the terms and conditions of this Lease, Tenant shall peacefully
and quietly have and enjoy the
Premises for the Term, free from interference by Landlord, subject, however,
to the provisions of this Lease.
During the Term of this agreement the Landlord shall not lease space in Ludlow
Mills to another Tenant who Brews
and sells Beer.
4.

ENVIRONMENTAL MATTERS.

(a)
Tenant's Reoresentations. Warranties and Covenants. Tenant represents,
warrants and
covenants to and with Landlord that:
(i)
obligations hereunder.

Tenant has the full right, power, and authority to carry out its environm
ental

(ii)
obligations hereunder.

Tenant is financially capable of performing and satisfying its environm

ental

(iii)

Intentionally Deleted.

(iv)
Tenants generation, handling, usage, transportation, treatment, storage, or
disposal of Hazardous Materials at the Premises will (A) comply with applicable Environm
ental Laws, and (B)
no Tenant Party shall cause any Environmental Condition to occur or exist at the
Premises.
(v)
Tenant, at its expense, shall comply with each Environmental Law pertaining to
Tenant's use and occupancy of the Premises.
(vi)
Tenant will not install, use or operate any underground storage tank without the
express written permission of Landlord, which permission may be withheld in Landlord's
sole and arbitrary
discretion.
523376.3

-7-

(b)
Notice. To the extent it has notice thereof, Tenant shall
use commercially reasonable
efforts to give prompt written notice to Landlord of (i) any
proceeding or inquiry by any governmental authority with
respect to the presence of any Hazardous Materials on the
Premises or the migration thereof from or to other areas,
(H) all claims made by any third party against Tenant or the
Premises relating to any loss or injury resulting from any
Hazardous Materials, and (iii) Tenants discovery of any
occurrence or condition on any Premises adjoining or in the
vicinity of the Premises that could cause the Premises or any
part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Premises under
any Environmental Law.
(c)
Tenant Indemnification. Tenant shall defend with counsel
reasonably approved by
Landlord, all actions against any Landlord Party with respect
to, and pay, protect, indemnify, and hold harmless, to
the extent permitted by Law, the Landlord Parties from and
against any and all Environmental Costs of any nature
arising out of, or claimed to be arising out of any Environmental
Conditions on the Premises or occurring as a result
of migration from the Premises but only to the extent that such
Environmental Conditions are caused by or arise out
of Tenant's use or occupancy of the Premises or by the acts
or omissions of any Tenant Party. Notwithstanding
anything in this Lease to the contrary, Landlord agrees that
Tenant shall not be responsible for Environmental
Conditions to the extent that such Environmental Conditions
exist as of the Commencement Date or are the direct
result from the actions or omissions of any Landlord Party
occurring after the Commencement Date. This
indemnification shall include without limitation Environmental Costs
arising out of any violations of Environmental
Laws, including, without limitation, those based on strict liability.
The foregoing indemnity shall survive the end of the
Term.
(d)
Landlord Indemnification. Landlord shall defend with counsel
reasonably approved by
Tenant, all actions against any Tenant Party with respect to and pay,
protect, indemnify and hold harmless, to the
extent permitted by Law, the Tenant Parties from and against any
and all Environmental Costs of any nature arising
out of, or claimed to be arising out of, any Environmental Conditions
directly caused by Landlord's use or operation of
the Premises or by the acts or omissions of any Landlord Party
occurring after the Commencement Date. This
indemnification shall include without limitation Environmental
Costs arising out of any violations of Environmental
Laws, regardless of any real or alleged fault of any Landlord
Party. Notwithstanding anything to the contrary
contained herein, Tenant and Landlord acknowledge and agree
the foregoing Landlord Indemnification in this Section
4(d) shall in no way be applicable to any Environmental Conditio
ns which predate the Commencement Date, and
Tenant hereby expressly releases and holds Landlord harmless from
any liability for same. The foregoing indemnity
shall survive the end of the Term.
(e)
Disclosure. Within thirty (30) days after Landlord's request for
same, Tenant shall
disclose to Landlord in writing the names and amounts of all Hazardo
us Materials, or any combination thereof, which
were stored, used or disposed of on the Premises, other than those
Hazardous Materials that are customarily used in
the normal course of Tenant's business, or those Hazardous Material
s which Tenant intends to store, use or dispose
of on the Premises in its normal course of business and in conjunc
tion with the Permitted Use. Further, Tenant shall
provide Landlord a copy of every document Tenant makes available
to any person under any Environmental Law.
Inspection. Landlord shall have the right, but not the duty, to inspect
(0
the Premises to
determine whether Tenant is complying with the terms of this
Section 4. Landlord shall provide tenant with a
minimum of 48 hours of advanced notice prior to any inspections,
unless in the case of an emergency. If Tenant is
not in compliance, then Landlord shall have the right to immediately
enter upon the Premises to remedy, at Tenant's
expense, any Environmental Conditions caused by Tenant's failure
to comply, notwithstanding any other provision of
this Lease to the contrary. Such remediation measures shall be
done in accordance with the recommendations of
Landlord's geotechnical engineers and/or consultants, and/or the requirem
ents of any governmental authority having
jurisdiction over such matters. Tenant shall pay to Landlord, addition
as
al rent, all Environmental Costs incurred by
Landlord in performing any such remediation measures within
thirty (30) days after Landlord's written request
therefore. Landlord shall use reasonable efforts to minimize interfere
nce with Tenant's business operations, but
Landlord shall not be liable for any interference caused thereby.
(g)
meanings.

Definitions. For purposes of this Lease, the following terms shall have
the following

"Environmental Law or Laws" shall mean any and all federal,

state or local
laws, regulations, ordinances, rules, orders, directions, requirements
or court decrees pertaining to health,
523376.3

-8-

industrial hygiene, or the environmental conditions on,

under or about the Premises, including, without
limitation, the Resource Conservation and Recovery Act,
as amended (42 U.S.C. 6901, et seq.), and
regulations promulgated there under ("RCRA");
the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (42 U.S.C.
9601, et seq.), and regulations promulgated there
under ("CERCLA"), the Hazardous Materials Transportatio
n Act, as amended (49 U.S.C. 1801, et seq.),
and regulations promulgated there under; the Toxic Substa
nces Control Act, as amended (15 U.S.C. 2601,
at seq.), and regulations promulgated there under; the
Federal Insecticide, Fungicide and Rodenticide Act,
as amended (7 U.S.C. 136, et seq.), and regulations promu
lgated there under; the Federal Water Pollution
Control Act (the Clean Water Act), as amended (33 U.S.C.
1251, et seq.), and regulations promulgated
there under; the Safe Drinking Water Act, as amend
ed (42 U.S.C. 300f et seq.), and regulations
promulgated there under; the Clean Air Act, as amend
ed (42 U.S.C. 7401 et seq.), and regulations
promulgated there under; Mass General Law, Chapter 21E
and regulations promulgated there under; and all
parallel, similar or relevant Laws.
(ii)
"Hazardous Materials" shall mean any (A) hazardous
waste as defined in
RCRA, (8) hazardous substance as defined in CERCLA, (C)
petroleum or liquid petroleum or wastes, and (D)
any other toxic or hazardous substances that may
be regulated from time to time by applicable
Environmental Laws.
(iii)
"Environmental Conditions" shall mean any spilling
, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escapi
ng, leaching, dumping, or disposing of Hazardous
Materials other than in compliance with applicable
Environmental Laws. The term "Environmental
Conditions" includes, but is not limited to, the presence of
Hazardous Materials attributable to the operation
of any underground or above-ground storage tanks, oil/wat
er separators, or in-ground hydraulic lifts or
hoists, and associated equipment.
(iv)
"Environmental Costs" shall mean any and all judgments,
damages, penalties,
fines, costs, liabilities, obligations, losses, or expenses
of whatever kind and nature (including, without
limitation, diminution in value of the Premises, damages
for the loss or restriction on use of leasable space,
damages arising from any adverse impact on marketing
of space, sums paid in settlement of claims,
attorney fees, consultant fees and expert fees), arising
from or incurred in connection with Environmental
Conditions, including, but not limited to, those relating
to the presence, investigation, or remediation of
Hazardous Materials.
CONDITION OF PREMISES. Tenant acknowledges and
agrees that there has been no agreement of Landlord to
alter, remodel, decorate, dean or improve the Premises or
to demolish and/or remove any improvements, equipment
or Premises located in the Premises (or to provide
Tenant with any credit or allowance for any of the forego
ing,
except as expressly set forth in Landlord's Work Rider),
and no representation regarding the condition of the
Premises have been made by or on behalf of Landlord or
relied upon by Tenant, it being agreed that Tenant shall
accept the Premises in an "as-is" "where-is" condition
and configuration on the Delivery Date. Tenant, at its
expense, shall (a) obtain any and all certificates of occupa
ncy, special use permits, business licenses and other
permits and licenses which may be required by applicable
Law for Tenants use and occupancy of the Premises in
accordance with the provisions of this Lease, and (b) make
any and all improvements, alterations and additions to
the Premises, in accordance with the provisions of this
Lease, which may be required to obtain such certificates,
permits and licenses. The failure of Tenant to obtain any
such certificate, permit or license shall not be a condition
precedent to Tenant's obligation to pay Rent or to perform
any of its other obligations hereunder or affect the validity
of this Lease.
5.

UTILITIES AND SERVICES.

(a)
Tenant's Utilities and Services. Tenant shall contract in its own
name and timely pay all
charges for all (i) utilities including, but not limited to,
gas, electricity, heating fuel, (individually, a "Utility" and
collectively the "Utilities"), and 00 services including, but
not limited to, telephone, security, alarm, janitorial, trash
and debris removal and pest control (individually, a "Servi
ce" and collectively the "Services") used in, servicing or
assessed against the Premises, unless otherwise herein
expressly provided. In the event that it is impracticable
or
impossible for Tenant to contract in its own name for any
Utility, such Utility shall be placed in Landlord's name and
523376.3

-9 -

Tenant shall pay Additional Rent Amount with respect to such Utility
cost to Landlord as set forth in Paragraph 2(d)
above.
(b)
Interruptions in Utilities or Services. Tenant agrees that Landlord shall
not be liable for
damages for any failure or interruption in furnishing any Utility or
Service nor shall any such failure or interruption be
considered to be an eviction or disturbance of Tenants use of the
Premises, or relieve Tenant from its obligation to
pay any Rent when due or from any other obligations of Tenant
under this Lease. Notwithstanding the foregoing, if
any such failure or interruption is caused by the negligence or willful
misconduct of Landlord Party, and such failure
or interruption continues for two (2) consecutive days and as a
result thereof Tenant is unable to and does not use
all or any significant portion of the Premises for the normal
conduct of business (except storage of Tenant's
Premises), then for so long as the failure or interruption continue
s thereafter, Base Rent shall be abated,
commencing upon the date Tenant notifies Landlord of such interrupt
ion or failure, in the same proportion that the
leasable area of the portion of the Premises which Tenant is unable
to (and does not) use as a result of the failure or
interruption bears to the total leasable area of the Premises. The
aforesaid abatement shall be Tenant's sole remedy
and Landlord's sole liability for any failure or interruption in furnishin
g Utilities and Services to the Premises, and in
no event shall Landlord be liable for Tenant's loss of business or
profits. The Landlord must give the Tenant at least
24 hours of advance notice when a foreseeable utility interrupt
ion will occur in order for the Tenant to make
appropriate accommodations
6.
LANDLORD'S RULES AND REGULATIONS. Tenant shall faithfully
observe and comply with the
rules and regulations that Landlord shall from time to time promulg
ate with respect to the use and occupancy of the
Building and/or the use or the Common Areas. Landlord reserves
the right from time to time during the Term of this
Lease to make such changes to Landlord's rules and regulations
as Landlord may deem necessary or appropriate.
Landlord's rules and regulations and any modifications to Landlord
's rules and regulations shall be binding upon
tenant upon delivery of a copy to Tenant. Landlord agrees that
all of its rules and regulations with respect to the
Building and the Common Areas shall equally applicable to all tenants
occupying any portion of the Building and/or
utilizing any portion of the Common Areas. Landlord shall not
be responsible to Tenant for any violation of
Landlord's rules and regulations by any other tenants or occupan
ts of any portion of the Building and/or the Common
Areas.
7.
CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves
the following rights, each of
which Landlord may exercise without notice to Tenant and without
liability to Tenant, and the exercise of any such
rights shall not be deemed to constitute an eviction or disturbance
of Tenant's use or possession of the Premises and
shall not give rise to any claim for set-off, deduction, or abatement of rent
or any other claim: (a) to install, affix and
maintain a "For Lease" or "For Sale" sign on the Premises during
the six (6) month period prior to the end of the then
current Term unless Tenant exercises an Extension Option in accordan
ce with the terms and conditions of this Lease
or In the event Tenant is in Default under this Lease and Landlord has
elected to enforce its remedies under this
Lease, (b) to show the Premises to a prospective purchaser of the Premises
and its lender, if any, or Landlord's then
current mortgagee or inspect the Premises at reasonable times and upon
no less than twenty-four (24) hours prior
notice to Tenant and in all cases in the presence of any employe
e of Tenant (although notice shall not be required if
there is an emergency situation) and, if abandoned, to prepare the Premises
for re-occupancy, and (c) to take any
other action which Landlord deems reasonable in connection with the
operation, maintenance or preservation of the
Premises.
8.

MAINTENANCE AND REPAIRS.

(a)
General Landlord Requirements. Subject to the provisions of Section
14 below, and
except for damage caused by any negligent or intentional act or omission
of Tenant, Tenant's agents, employees or
invitees, Landlord, at Landlord's expense, shall keep in good order
condition and repair the building structure,
foundations and exterior roof of the Building. Landlord shall not be
obligated to paint such exterior nor shall
Landlord be required to maintain the interior surface of exterior walls,
windows, doors or plate glass. Landlord shall
not have any obligation to make repairs hereunder until a reasonable time
after receipt of written notice of the need
for such repairs. If written notice of needed repairs has been provided
to the Landlord for repairs related to the
building structure, foundations and exterior roof of the building as
provided above, and those repairs are not
addressed within thirty (30) days, the tenant has the right to perform
the tasks needed to make the repairs and
deduct the cost of such repairs from the rent due the Landlord.
523376.3

- 10-

(b)
Common Areas. During the term of this Lease, Landlord shall operate,
manage and
maintain the Common Areas so that they are clean and free from
accumulation of debris, filth, rubbish and garbage.
The manner in which the Common Areas are maintained and the
expenditures for Common Area maintenance shall
be at the sole discretion of Landlord. Landlord shall provide reasonab
le exterior lighting for the parking areas and
sidewalks leading to and from the parking areas that constitute part
of the Common Areas and Landlord shall use
reasonable efforts to keep such parking areas and sidewalks
reasonably free of snow and ice. Landlord expressly
reserves the right to close from time to time all or any portion of the
Common Areas to such extent as may be legally
sufficient, in the opinion of Landlord's counsel, to prevent a dedicatio
n thereof or the accrual or rights or any person
of the public therein or to close temporarily all or any portion of such
Common Areas for such purposes.
(c)
General Tenant Requirements. Tenant, at its expense, shall keep, maintain
, repair and
replace the Premises, in good and sanitary condition, working order
and repair (including making any necessary
replacements) and in compliance with all applicable Laws. Tenant
shall perform all maintenance, repairs or
replacements in a good, workmanlike and lien-free manner, consisten
t with the quality of labor and materials used in
the initial build-out of the Premises and in accordance with all applicable
Laws. If Tenant fails to make any repairs or
replacements to the Premises which is required of Tenant and such failure
continues for more than fifteen (1S) days
after written notice from Landlord (although notice shall not be required
if there is an emergency), then Landlord
may itself make the required repairs, and Tenant shall pay the cost
of such repairs and replacements to Landlord,
together with an administrative charge in an amount equal to ten
percent (10%) of the cost of such repairs and
replacements. Tenant shall permit no waste, damage or injury to the
Premises, and shall initiate and carry out a
program of regular maintenance and repair of the Premises including
, but not limited to, the painting and refinishing
of all areas so as to Impede, to the extent possible, deterioration by ordinary
wear and tear, and to keep the same in
substantially the same condition as existed on the Original Commencement
Date of August 1, 2013, subject to
Section 14 of this Lease.
(d)
Fire Protection. Landlord, at its expense, shall perform all work required
to maintain,
repair and replace the units, systems and equipment comprising the fire protectio
n, sprinkler and alarm systems and
all other equipment serving the Premises that is installed by Landlord or in
existence on the Commencement Date
(collectively, the "Fire Protection "), unless any such maintenance, repair
or replacement is caused by the negligent
or tortuous acts or omissions of any Tenant Party. Tenant is prohibited from
performing any work or inspections on
any of the Fire Protection and Mechanical Systems, Landlord shall engage,
at Tenant's expense, contractors to
perform any work with respect to the Fire Protection and Mechanic
al Systems that maybe required as a result of
Tenant's use and occupancy of the Premises. Landlord and Tenant shall identify
any such requirements prior to the
Commencement Date.
9.

ALTERATIONS.

(a) Requirements. Tenant shall not make any alteration, improvement or

addition to or removal from the
Premises (individually, an "Alteration" and collectively the "Alterations")
without the prior written consent of
Landlord in each such instance, which consent shall not be unreasonably
withheld, conditioned or delayed. In the
event Tenant proposes to make any Alteration, Tenant shall, prior to commenc
ing such Alteration and/or applying for
any necessary permits, licenses and approvals, submit to Landlord for prior
written approval (I) detailed plans and
specifications reasonably acceptable to Landlord (and Tenant shall thereafte
r submit to Landlord for approval any
and all proposed changes to such plans and specifications), (ii) names and
addresses of all contractors reasonably
acceptable to Landlord and copies of all contracts with said contractors, (iii)
a detailed cost estimate, certified by the
architect who prepared the plans and specifications, (iv) all necessary permit
applications evidencing intention to
comply with all applicable governmental rules, regulations and requirements,
(v) certificates of insurance in form and
amounts reasonably required by Landlord, naming the Landlord Parties
as additional insured, and (vi) all other
documents and information as Landlord may reasonably request in connectio
n with such Alteration. Notwithstanding
the foregoing to the contrary, Landlord's consent shall not be required (but Tenant
shall give Landlord not less than
ten (10) days' prior written notice) for any painting, wall-papering or re-carpet
ing of the interior of the Premises that
Tenant undertakes during the Term. Tenant shall pay the entire cost of any Alteration
. Provided that the Alteration is
one that is structural in nature or to be performed on the exterior of the Building
and/or Premises, Tenant shall pay
to Landlord within thirty (30) days after billing an amount equal to the greater
of (i) the sum of (a) Landlord's actual
and reasonable out-of-pocket costs and expenses paid to third parties
for the review of Tenant's plans and
specifications for such Alteration. Landlord's approval of any Alteration
shall not constitute a representation by
Landlord that such Alteration complies with applicable Laws and insurance company
requirements or will be adequate
523376.3
- 11 -

for Tenant's use. Except as otherwise provided in this Section

10, all Alterations (i) shall be performed in a good and
workmanlike manner, in accordance with the plans and
specifications approved by Landlord, (ii) intentionally deleted,
(iii) shall meet or exceed the standards for construction
and quality of materials established by Landlord for the
building, and (iv) shall be performed in compliance with
all applicable Laws and insurance company requirements.
Upon completion of any Alteration, except in the event of
painting, carpeting and/or wall-papering of the interior of
the Building, Tenant shall deliver to Landlord all contractor's
and subcontractor's affidavits and full and final waivers
of lien for all labor, services or materials and a copy of the
plans and specifications for such Alteration. Tenant has
permission to hang a sign on the exterior of the premise
s. All exterior building signs shall be restricted to
identification of the business or services located or provided
therein. No exterior building sign shall extend above the
building roof or be painted on the exterior building
surface. All signage must be in accordance with all local,
municipal code requirements and approval of Westmass Area
Development Corporation.
(b)
Ownership. Each Alteration, whether temporary or perman
ent in character, made by
Landlord or Tenant in and upon the Premises (excepting Tenant's
Property as hereinafter defined and any or all
equipment installations performed by the Tenant), shall become
Landlord's Premises and shall remain upon the
Premises at the expiration or termination of this Lease without
compensation to Tenant; provided, however, that
Landlord shall have the right to require Tenant to remove
such Alteration or any portion of such Alteration (the
"Required Removable?) at Tenant's sole cost and expense
in accordance with Section 17 below. Landlord shall
advise Tenant in writing as to which portions of such Alteration,
if any, will be required to be removed at the same time
as (but shall be an independent determination from) Landlord
's consent to the making of such Alteration.
Notwithstanding anything contained herein to the contrary, as
of the Expiration Date, Tenant shall only be required to
remove those Alterations Landlord required to be removed when
it gave its consent to the making of such Alteration.
Equipment installations performed by the Tenant are to remain
the property of the Tenant and will be removed from the
premises by the Tenant upon termination of this lease.
10.

LIENS.

(a)
Lien Claims. Tenant shall not do any act which shall in any way
encumber the title of the
Landlord in and to the Premises nor shall any interest or estate
of Landlord in the Premises be in any way subject to
any claim by way of lien or encumbrance, whether by operation of
law or by virtue of any express or implied contract
by Tenant, and any claim to or lien upon the Premises arising from
any act or omission of Tenant shall accrue only
against the leasehold estate of Tenant under this Lease and
shall in all respects be subject and subordinate to the
paramount title and rights of Landlord in and to the Premise
s. Tenant will not permit the Premises to become
subject to any mechanics', laborers', or material men's lien on account
of labor or 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 on the Premises by or at the direction or sufferan
ce of Tenant; provided, however that Tenant shall
have the right to contest in good faith and with reasonable diligenc
e, the validity of any such lien or claimed lien if
Tenant shall first either (x) give to Landlord an amount equal
to one hundred twenty percent (120%) of the amount
of the lien or claimed lien which, together with interest thereon
, shall be held by Landlord as security to insure
payment thereof and to prevent any sale, foreclosure or
forfeiture of the Premises by reason of non-payment
thereof, (y) bond over such lien in accordance with the statutory bonding
procedures (if any) in effect in the state in
which the Premises is located so that such lien is no longer an encumb
rance against title to the Premises, or (z)
cause a title insurance company satisfactory to Landlord to insure
over such lien in favor of Landlord, any present or
future Mortgagee and any prospective purchaser of the Premise
s. If Tenant elects to deposit such sums with
Landlord, then Landlord shall hold the amount so deposited with
Landlord in an account established at a federally
insured banking institution until satisfactory removal of said lien or
claim of lien. On any final determination of the
lien or claim for lien, Tenant will immediately pay any judgment rendere
d, with all proper costs and charges, and will,
at its own expense, have the lien released and any judgment satisfied
. If Tenant fails to diligently contest and
pursue such lien contest, Landlord may, at its option, use the sums
so deposited to discharge any such lien upon the
renewal of such lien or encumbrance Landlord shall pay all such sums
remaining on deposit to Tenant.
(b)
Landlord's Right to Cure. If Tenant shall fail to contest the validity
of any lien or claimed
lien or fail to either give security to Landlord to insure payment thereof
or to bond or insure over such lien, or shall
fail to prosecute such contest with diligence, or shall fail to have
the same released and satisfy any judgment
rendered thereon, then Landlord may, at its election (but shall not
be so required) remove or discharge such lien or
claim for lien (with the right, in its discretion, to settle or comprom
ise the same), and any amounts advanced by
Landlord, including reasonable attorneys' fees, for such purposes shall
be deemed to be additional rent due from
523376.3

- 12 -

Tenant to Landlord on the first day of the next calendar month

after any such payment, with the interest thereon at
the Default Rate from the date so advanced until the date paid
in full.
11.

INSURANCE.

(a)
Landlord's Insurance. Landlord will purchase and maintain through
out the Term, Commercial
General Liability Insurance on non-contributory basis (with
broad form commercial general liability endorsement),
insuring Landlord and naming the Landlord Parties and any other
parties designated by Landlord from time to time as
additional insureds, covering, without limitation, any liability
for bodily injury, personal injury, including death, and
Premises damage arising out of Tenant's operations, acts,
omissions, assumed liabilities or use of the Premises,
having a combined single limit of at least Five Million Dollars
($5,000,000) and containing a deductible not in excess
of Fifty Thousand Dollars ($50,000) (the "landlord's Liabilit
y Insurance"). Landlord shall also purchase and
maintain throughout the Term Property Insurance ("Property
Insurance") including but not limited to fire, sprinkler
leakage, vandalism and all other risks of direct physical loss
as insured against under special form coverage
endorsement (A) in amounts that would cover the one hundred
percent (100%) actual cash value of the Building and
all additions, improvements, alterations to t he Building, provided
that the Landlord and any other parties designated
by Landlord from time to time are loss payees as their interests
may appear.
Tenants Insurance. (A) Tennant shall, at its own cost and expense
, procure and maintain In full force "commercial
general liability" insurance under which landlord shall be named as
an additional insured. Under such policy bodily
injury and property damage limits shall be not less than $1,000,
000 per occurrence, and $2,000,000 annual
aggregate. Such commercial liability insurance will be carried with
companies qualified to do business in
Massachusetts and be acceptable to the Landlord. Certificates of insuranc
e under this section, and certificates of any
and all renewals or replacements of this policy, shall be delivered to
Landlord as soon as possible.
(B) Tennant shall carry fire insurance with extended coverage on all
Tennant's fixtures, furniture, furnishings,
leasehold improvements and stock in trade to the extent of their full
replacement value
(C) Tennant shall give landlord notice of any intended cancellation
or receipt of notice of cancellation from the
insurer, of any of the insurance coverage described herein.
(D) Property Insurance, including, but not limited to, fire,
sprinkler and or roof, leakage, vandalism and all other
risks of direct physical loss as insured against under special broad
form coverage endorsement, covering all trade
fixtures, business equipment, inventory, trademarked items,
signage (interior and , exterior), decorative soffit,
counters, shelving, racks, showcases, mirrors and other items
of Tenant's Premises in or on the Premises
(collectively, 'Tenant's Property") Such insurance shall be
written on a "Causes of Loss-Special Form" of physical
loss or damage basis, for the full replacement cost value of the
covered items and in amounts that meet any
coinsurance clause of the policies of insurance.
(E) Worker's Compensation Insurance covering all employees
of Tenant performing work in, on, or with respect to
the Premises, in amounts not less than those required by Law.

Employers liability insurance covering all employees of Tenant

performing work in, on or with respect to the
Premises, in amounts not less than those required by law.
Tenant shall concurrently with Tenant's execution of this Lease and
from time to time thereafter
upon insurance renewals, furnish to Landlord certificates of
insurance evidencing such coverage and with renewal
certificates no less than thirty (30) days prior to the expiration of
such policies, which certificates of insurance shall
state that such insurance coverage may not be materially amended
or canceled without at least thirty (30) days' prior
written notice to Landlord and Tenant.
(b)
Waiver of Subrogation. Landlord and Tenant each waives
any and every claim for
recovery from the other for any and all loss or damage to the
Project or to the contents thereof, whether such loss or
damage is due to the negligence of any Landlord Party or any Tenant
Party, to the extent that the amount of such
523376.3
- 13 -

loss or damage is recovered under its policies

of insurance; provided, however, that the forego
ing waiver shall not be
operative in any case where its effect is to invalid
ate any insurance coverage of the waiving party
cost of such insurance coverage; provided, furthe
or increase the
r, however, that in the case of an increase in
the cost of insurance
coverage, the insured shall give to the other
party notice of the increase and the amount
of the increase, and the
other party may reinstate such waiver by paying
to the insured the amount of the increase in the
cost of insurance.
(c)
Avoid Action Increasing Rates. Tenant shall
comply with all applicable Laws, and
requirements and recommendations of insura
nce rating agencies with respect to the Premis
es, and shall not, directly
or indirectly, make any use of the Premises which
may thereby be prohibited or be dangerous to
person or Premises,
which may jeopardize any insurance covera
ge, increase the cost of insurance, or requir
e additional insurance
coverage. If Tenant fails to comply with the
provisions of this Section 12(d), then, in the
event Tenant fails to cure
such non-compliance within thirty (30) days after
written notice of such non-compliance from Landlo
of non-compliance shall not be required to
rd (which notice
be given by Landlord to Tenant in the event
such non-compliance is
prohibited or dangerous to person or the Premi
ses and for which Tenant shall have no time
to cure), then Landlord,
in addition to any other rights or remedies availa
ble to Landlord, shall have the option to termin
ate this Lease, and
may require Tenant to make immediate paym
ent of any increase in Landlord's insurance costs.
(d)
Tenants Failure to Insure. If Tenant shall fail
to maintain any insurance which Tenant is
required to maintain pursuant to this Sectio
n 12, or in the event such insurance shall be
cancelled, terminated or
materially changed and such failure, cancellation
, termination or change, as the case may be,
continues for three
days after written notice thereof from Landlo
rd to Tenant, then Landlord shall have the right
at its election (but
without being obligated so to do) to procure or
renew the same; and the amounts so paid by Landlo
additional Rent due under this Lease and shall
rd shall be
be reimbursed by Tenant to Landlord within five
(5) days after
demand, together with interest thereon at the
Default Rate from the date of Landlord's payment
until reimbursement
by Tenant.
(e)
Reoresentation. Landlord makes no representatio
n that the limits of liability specified to
be carried by Tenant under this Section 12 are adequ
ate to protect Tenant. In the event Tenant believ
such insurance coverage called for under this Lease
es that any
is insufficient, Tenant shall provide, at its own
expense, such
additional insurance as Tenant deems adequate.
Additional Reouirements. Tenant shall require each
(0
of its contractors and trades people,
and their relevant subcontractors, to carry insura
nce in amounts and standards specified in this Sectio
n 12 excluding
coverage required in Section 12(b) (v), and Sectio
n 12(b) (vi) as it pertains to contractors personal
Premises, or as
Landlord may from time to time require, from insura
nce companies licensed to do business in the State
in which the
Premises is located. In addition, Tenant shall cause
all contractors to maintain builder's risk Premises
insurance for
the full replacement value of Tenant's Work.
12.

INDEMNITY.

Tenant agrees to indemnify, defend and hold

harmless Landlord, Landlord's members, each
Mortgagee and their respective directors, officers,
shareholders, affiliates, agents and employees (Land
lord and each
of said persons and entities being herein
individually called a "Landlord Party" and collec
tively called the
"Landlord Parties"), from and against any and
all daims, demands, actions, liabilities, damages,
costs and
expenses (including reasonable attorneys' fees),
for injuries to any persons and damage to
or theft or
misappropriation or loss of Premises occurring in
or about the Premises, the Building and/or the Comm
on Areas and
arising from the use and occupancy of the Premises,
the Building and/or the Common Areas from any
activity, work,
or thing done, permitted or suffered by Tenant
in or about the Premises, the Building and/or the
Common Areas,
including, without limitation, any Alterations perfor
med by or on behalf of Tenant (ex ept if and to the
extent same is
caused by the negligence or willful misconduct
of any Landlord Party), or from any Default by Tenan
t under this
Lease or due to any other act or omission of
Tenant, its subtenants, assignees, invitees, license
es, employees,
contractors and agents (Tenant and each of said
persons and entities being hereinafter individually
called a "Tenant
Party" and collectively called the "Tenant Partie
s"), except to the extent same was caused by the
negligence or
willful misconduct of the Landlord Parties. If any
such proceeding is filed against any Landlord Party,
then Tenant
shall defend such Landlord Party in such proceeding
at Tenant's sole cost by legal counsel reasonably
satisfactory to
such Landlord Party, if requested by such Landlord Party.
The foregoing indemnity shall survive the end of the
Term.
523376.3
- 14-

13.

FIRE AND CASUALTY.

If fire or other casualty damages all or any part of the

Premises, which includes but is not limited
to the Building, Tenant shall immediately notify Landlor
d in writing. If the Premises are rendered partially or
wholly
untenantable as a result thereof, Rent shall be abated
based upon the nature and extent of the damage and
Landlord shall notify Tenant within sixty (60) days followin
g the date of occurrence of damage by fire or other
casualty whether Landlord will proceed to repair and
restore the Premises and/or the Building ("Restoration
Election'). If Landlord makes a Restoration Election,
Landlord shall proceed to repair and restore the Premises
and/or the Building as soon as practicable, and rent shall continu
e to abate until Landlord has completed such repair
and restoration work. If Landlord does not make a Restora
tion Election, this Lease shall terminate. If the Premise
s
are not rendered untenantable as a result of any such
damage by fire or casualty, there shall be no abatement of
rent and Landlord shall proceed to repair the damage to
the Premises and restore the Premises substantially to the
condition existing before any such damage by fire or
other casualty as soon as practicable, at Landlord's sole cost
and expense. Landlord has the burden and responsibility
of solely making the decision as to whether or not the
structure is deemed "untenantable" in the event of a loss.
Landlord will seek the tenant's input along with weighing
the input and requirements of the insurance carriers
, building inspectors and commissioner, fire officials, etc.
in
making its determination. In the event of such termination:
(i) this Lease shall terminate effective as the occurrence
of such casualty; and (H) Rent shall be paid through as of the
date of termination.
14.
CONDEMNATION. Either party may terminate this Lease
if the whole or any material part of the
Premises shall be taken or condemned for any public
or quasi-public use under any applicable Law, by eminent
domain or private purchase in lieu thereof (each, a 'Takin
g"). Landlord shall also have the right to terminate this
Lease if there is a Taking of any portion of the Buildin
g or the Premises that would leave the remainder of
the
Building unsuitable for use In a manner comparable
to the use of the Building prior to the Taking. In order
to
exercise its right to terminate this Lease, Landlord or Tenant
, as the case may be, must provide written notice of
termination to the other within forty-five (45) days after
the terminating party first receives notice of the Taking.
Any such termination shall be effetlive as of the date the physica
l taking of a portion of the Building or the Premises
occurs. If this Lease is not terminated, the leasable
area of the Premises shall, if applicable, be appropriately
adjusted. In addition, Rent for any portion of the Premis
es taken or condemned shall be abated during the
unexpired Term effective as of the date when the
physical taking of the portion of the Premises occurs. All
compensation awarded for a Taking, or sale proceeds, shall
be the Premises of Landlord, any right to receive
compensation or proceeds being expressly waived by Tenan
t However, Tenant may file a separate claim at its
expense, for Tenant's Premises and Tenant's reasonable
relocation expenses, provided the filing of the claim does
not diminish the award which would otherwise be received by
Landlord.
15.

ASSIGNMENT AND SUBLETTING.

(a)
Transfer. Except in connection with a Permitted Transfer,
Tenant shall not, without the
prior written consent of Landlord: (i) assign, re-assign, convey
, mortgage or otherwise transfer this Lease or any
Interest hereunder, or (ii) sublease the Premises, or any part
thereof, whether voluntarily or by operation of Law; (iii)
permit the use of the Premises by any person or entity other
than Tenant and its employees. Any such transfer,
sublease or use described in the preceding sentence is hereina
fter called a "Transfer. Landlord's consent to any
Transfer shall not constitute a waiver of Landlord's right to
withhold its consent to any future Transfer. Landlord's
consent to any Transfer or acceptance of rent from any party
other than Tenant shall not release Tenant from any
covenant or obligation under this Lease. Landlord may require
as a condition to its consent to any assignment of this
Lease that the assignee sign a commercially reasonable form
of assumption agreement. Except as provided below
with respect to a Permitted Transfer, if Tenant is a corpora
tion, limited liability company, partnership, or similar
entity, and if the person or entity which owns or controls a
majority of the voting shares/rights in Tenant at any time
changes for any reason (including but not limited to a merger
, consolidation or reorganization), such change of
ownership or control shall constitute a Transfer. The foregoi
ng shall not apply so long as Tenant is an entity whose
outstanding stock is listed on a recognized security exchange,
or if at least fifty-one percent (51%) of its voting {trick
is owned by another entity, the voting stock of which is so listed.
(b)
Permitted Transfer. Notwithstanding Section 16(a) above
to the contrary, Tenant may
assign its interest in this Lease or sublease all or any part
of the Premises (each a "Permitted Transfer") to a
Permitted Transferee without Landlord's prior written consen
t; provided, that (i) Tenant gives Landlord a written
notice of any Permitted Transfer not later than thirty (30) days
prior to the effective date of such Permitted Transfer,
together with current financial statements of Tenant and of
the Permitted Transferee, (H) Tenant is not in Default
523376.3
- 15 -

under this Lease, (Hi) with respect to a Permitted

Transfer involving an assignment of this Lease, the
Permitted
Transferee assumes this Lease by a written assumption
agreement delivered to Landlord prior to the effective
date of
such Permitted Transfer, (iv) the Permitted Transferee
shall use the Premises only for the Permitted Use, (v)
the use
of the Premises by the Permitted Transferee shall not
violate any other agreements or leases affecting the
Premises,
(vi) the occurrence of a Permitted Transfer shall not
waive Landlord's rights as to any subsequent Transfer,
and (vii)
Tenant shall not be released from any liability under
this Lease (whether past, present or future) by reason of
such
Permitted Transfer). As used herein, (A) "Affiliate"
means any person or entity who or which controls, is
controlled
by, or is under common control with Tenant, (B) "Succe
ssor" means any business entity in which or with
which
Tenant is merged or consolidated in accordance
with applicable statutory provisions governing merge
r and
consolidation of business entities, so long as (1) Tenant
's obligations under this Lease are assumed by the Succes
sor,
and (2) the Tangible Net Worth of the Successor is not
less than the greater of the Tangible Net Worth of Tenant
on
the date hereof or the Tangible Net Worth of Tenant
immediately preceding the effective date of such merger
or
consolidation, (C) "Purchaser" means any person
or entity who or which acquires all or substantially all
of the
assets of Tenant, so long as the Tangible Net Worth of
the Purchaser is not less than the greater of the Tangible
Net
Worth of Tenant as of the date hereof or the Tangible Net
Worth of Tenant immediately preceding such acquis
ition,
(D) "Permitted Transferee" means an Affiliate, Succes
sor, or Purchaser, and (E) "Tangible Net Worth"
means
the excess of total assets over total liabilities, in each
case as determined in accordance with generally accept
ed
accounting principles consistently applied ("GAAP"),
excluding however, from the determination of total assets,
all
assets which would be classified as intangible assets under
GAAP, induding, without limitation, good will, licenses,
patents, trademarks, trade names, copyrights and franchi
ses.
(c)
Tenant's Reouest for Consent. If Tenant desires the
consent of Landlord to a Transfer,
Tenant shall submit to Landlord at least sixty (60) days
prior to the effective date of the Transfer, a written notice
which includes current financial statements for the transfe
ree, a complete copy of the Transfer documents and
such
other information as Landlord may reasonably request.
If Landlord does not terminate this Lease, in whole
or in
part, then Landlord shall not unreasonably withhold its consen
t to any assignment or sublease. Landlord shall not be
deemed to have unreasonably withheld its consent if,
in the judgment of Landlord: (I) the transferee
is of a
character, image or reputation which is not in keeping
with the standards or criteria used by Landlord In leasing
the
Premises, (ii) the financial condition of the proposed transfe
ree does not meet the criteria Landlord uses to select
Premises tenants having similar leasehold obligations, (iii)
the purpose for which the transferee intends to use the
Premises or portion thereof differs in any way from
the Permitted Use, (iv) the transferee (or any Affiliate of
the
transferee) is then a tenant or occupant of the Premises,
(v) any portion of the Premises would likely become subjec
t
to additional or different Laws as a result of the Transfe
r or the intended use of the Premises by the transferee
would, in Landlord's reasonable judgment, more likely
cause a violation of Section 4 above or any other tenant'
s
lease; or (vi) any other bases which Landlord reasonably
deems appropriate. If Tenant is in Default at the time
Tenant requests Landlord's consent to a proposed
Transfer, then Landlord's consent to such Transfer may
be
conditioned upon Tenant curing such Default. If Landlord
wrongfully withholds its consent to any Transfer, Tenant's
sole and exclusive remedy therefore shall be to seek specific
performance of Landlord's obligation to consent to such
Transfer. In addition, Tenant shall pay to Landlord all reason
able attorneys' fees (in no event less than Five Hundred
Dollars ($500.00) per request) and expenses incurred by
Landlord in connection with any Transfer, whether or not
Landlord consents to such Transfer.
(d)
Excess Rent. If Landlord consents to a Transfer,
then Tenant shall pay Landlord fifty
percent (50%) of all rent and other consideration that
Tenant receives as a result of a transfer that is in excess
of
the Base Rent and Tenant Additional Rent Amount payabl
e to Landlord for the portion of the Premises and Term
covered by the Transfer. Tenant shall pay Landlord for
Landlord's share of any excess within thirty (30) days after
Tenant's receipt of each such excess consideration.
Tenant may deduct from the excess all reasonable
and
customary expenses directly incurred by Tenant and attribu
table to the Transfer (other than Landlord's review fee,
including brokerage fees, legal fees and construction costs).
(e)
Recapture Except for a Permitted Transfer, Landlo
rd shall have the right to terminate
this Lease as to that portion of the Premises covered by
any Landlord consent to a Transfer requested by Tenant
.
Landlord may exercise such right to Terminate by giving notice to
Tenant at any time within thirty (30) days after the
date in which Tenant has furnished to Landlord all of the
items required under Section 16 (a) above. If Landlord
exercises such right to terminate, Landlord shall be entitled
to recover possession of, and Tenant shall surrender
such portion of, the Premises (with appropriate demising
partitions erected at the expense of Tenant) on the later
of
(i) the effective date of the proposed Transfer or (ii) sixty
(60) days after the date of Landlord's notice of termination.
523376.3
- 16 -

In the event that Landlord exercises such right to terminate, Landlord

shall have the right to enter into a Lease with
the proposed transferee without incurring any liability to Tenant on
account thereof.
16.

SURRENDER.

(a)
Condition at Surrender. Upon the end of the Term or termination of Tenant's
right to
possession of the Premises, Tenant will at once surrender and deliver up the
Premises to Landlord, Broom Clean and
in Good Condition, ordinary wear and damage by fire or other casualty
excepted. As used herein, (i) "Broom
Clean" means free from all debris, dirt, rubbish, oil, grease, tire tracks, marking
tape or other substances, inside the
Premises, and (ii) "Good Condition" means that the Premises are in good
condition and in good working order.
Any damage caused by removal of Tenant from the Premises, including
any damage caused by the removal of
Tenant's Property under Section 17(b) below, shall be repaired and paid for
by Tenant prior to the end of the Term.
Notwithstanding any provision in this Lease to the contrary, upon the end
of the Term of termination of Tenant's
right to possession of the Premises, Landlord shall become the owner of
any building or improvements on the
Premises. Tenant acknowledges and agrees that Tenant shall be deemed
to be holding over pursuant to Paragraph
19 below if the condition of the Premises does not conform with the requireme
nts of this Paragraph 17(a) at the end
of the Term, and Tenant shall be deemed to be holding over pursuant to
Paragraph 19 until the condition of the
Premises conforms with the requirements of this Paragraph 17(a).
(b)
Removal of Tenant's Property. Upon the end of the Term or termination of Tenant's
right
to possession of the Project, Tenant shall remove all of the Required
Removables and all of Tenant's Property
(including, without limitation, all computer and telecommunications cabling
and wiring and all signage), which
removal shall be done in a good, workmanlike and lien-free manner, and upon
such removal Tenant shall repair all
damage to the Premises caused by the installation or removal of such items
(including the removal of any and all
floor bolts) and restore the Premises to its condition prior to the installatio
n of such items. if Tenant does not
remove any items comprising Tenant's Property or the Required Removab
les prior to the end of the Term, then
Landlord may remove such items and repair and restore the Premises and
Landlord shall be entitled to deduct the
cost thereof from the Security Deposit or, in the alternative as determined by Landlord
in its sole discretion, Tenant
shall pay the cost of such removal, repair and restoration to Landlord upon demand.
If Tenant does not remove any
items comprising Tenants Property or the Required Removables, then Tenant shall
be conclusively presumed to have
conveyed such items to Landlord without further payment or credit by Landlord
to Tenant or, at Landlord's sole
option, such items shall be deemed abandoned, in which event Landlord
may cause such items to be stored,
removed or disposed of at Tenant's expense, without notice to Tenant and without
obligation to compensate Tenant.
17.

DEFAULTS AND REMEDIES.

(a)
Default. The occurrence of each of the following shall constitute an event of default
(a
"Default') by Tenant under this Lease: (i) Tenant fails to pay any Rent within
five (5) days after the date when
same is due, (H) Tenant fails to timely deliver any Estoppel Certificate to Landlord
under Section 22 below, (Hi)
Tenant fails to timely surrender and vacate the Project in the manner described in
Section 17 above, (iv) Tenant
makes any Transfer (other than a Permitted Transfer) without obtaining Landlord's
prior written consent, (v) Tenant
fails to maintain any insurance required to be maintained by Tenant under Section
12 above, (vi) the occurrence of a
default by any guarantor of this Lease under the applicable guaranty, (vii) Tenant
(or any Affiliate) is in default
beyond any applicable notice and cure period under any other lease or agreemen
t with Landlord (or any affiliate of
Landlord), (viii) Tenant fails to observe or perform any other covenant or
obligation of Tenant under this Lease
(which is not referred to in dauses (i) through (vii) above) and such failure is not
cured within thirty (30) days (or
immediately if such failure involves a hazardous condition) after written notice from
Landlord; provided, however,
that if such failure cannot reasonably be cured within said 30-day period, Tenant
shall be allowed such additional
time (not to exceed sixty (60) days) as is reasonably necessary to cure such failure,
so long as (A) Tenant
commences to cure the failure within ten (10) days, and (B) Tenant diligently pursues
a course of action that will
cure the failure and bring Tenant back into compliance with this Lease, and (C)
Tenant provides Landlord with
detailed weekly written status reports of Tenant's progress in curing such failure
throughout the period of such
failure.
(b)
kI ria40. Upon any Default, Landlord shall have the right without further
notice or
demand to pursue any of its rights and remedies at Law or in equity, induding any
one or more of the following
remedies:
523376.3

- 17 -

(i)
Terminate this Lease, in which case Tenant shall immedia
tely surrender the
Project to Landlord. If Tenant fails to surrender the Project,
Landlord may, in compliance with applicable
Law and without prejudice to any other right or remedy, enter
upon and take possession of the Project and
expel and remove Tenant, Tenant's Premises and all parties
occupying all or any part of the Project. Tenant
shall pay Landlord on demand the amount of all past due
Rent and other losses and damages which
Landlord may suffer as a result of the Default, whether
by Landlord's inability to relet the Project on
satisfactory terms or otherwise, including, without limitatio
n, all Costs of Reletting and any deficiency that
may arise from reletting or the failure to relet the Project. "Costs
of Reletting" shall mean and include all
costs and expenses incurred by Landlord in reletting or attempt
ing to relet the Project, including, without
limitation, reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other
concessions or allowances granted to a new tenant.
(ii)
Terminate Tenant's right to possession of the Project and
in compliance with
applicable Law, expel and remove Tenant, Tenant's Premises
and all parties occupying all or any part of the
Project. Landlord may (but shall not be obligated to) relet
all or any part of the Project, without notice to
Tenant, for a term that may be greater or less than the balance
of the Term and on such conditions (which
may include concessions, free rent and alterations of the
Project) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may collect and
receive all rents and other income from the
reletting. Tenant shall pay Landlord on demand all past
due Rent, all Costs of Reletting and any deficiency
arising from the reletting or failure to relet the Project. Landlord
shall not be responsible or liable for the
failure to relet all or any part of the Project or for the failure
to collect any Rent. The re-entry or taking of
possession of the Project shall not be construed as an election
by Landlord to terminate this Lease unless
and until a written notice of termination is given to Tenant.
In lieu of calculating damages under Sections 18(b)(i) or 18(b)(ii)
above, Landlord may elect to
receive as damages the sum of (A) all Rent accrued through the
date of termination of this Lease or Tenant's right to
possession, and (B) an amount equal to the total Rent that
Tenant would have been required to pay for the
remainder of the Term discounted to present value at the
Prime Rate then in effect, minus the then present fair
rental value of the Project for the remainder of the Term, similarly
discounted, after deducting all anticipated Costs of
Reletting.
(c)
Other Remedies. Landlord may but shall not be obligated
to perform any obligation of
Tenant under this Lease, and if Landlord so elects, Tenant shall
reimburse all costs and expenses paid by Landlord in
performing such obligation, together with interest at the Default
Rate, to Landlord on demand. Any and all rights
and remedies set forth in this Lease: (i) shall be in addition to any
and all other rights and remedies Landlord may
have at Law or in equity, (ii) shall be cumulative, and (iii) may
be pursued successively or concurrently as Landlord
may elect. The exercise of any remedy by Landlord shall
not be deemed an election of remedies or predude
Landlord from exercising any other remedies in the future.
(d)
Waiver of Trial by Jury. Landlord and Tenant waive trial
by jury in the event of any
action, proceeding or counterclaim brought by either Landlor
d or Tenant against the other in connection with this
Lease.
(e)
Attorney's Fees. Tenant shall reimburse Landlord upon demand for
all reasonable costs
and expenses incurred by Landlord by reason of any Default (includin
g legal fees), whether or not Landlord institutes
any legal action or proceeding against Tenant by reason of such
Default. If either Landlord or Tenant brings an
action or proceeding to enforce or defend its rights under
this Lease the Prevailing Party in any such action or
proceeding, or appeal thereon, shall be entitled to receive (and shall
be awarded) all of its court costs and reasonable
attorneys' fees. Such costs and fees may be awarded in the
same suit or recovered in a separate suit, whether or
not such action or proceeding is pursued to decision or judgme
nt. As used herein, "Prevailing Party" shall mean
the party who substantially attains or defeats the relief sought,
as the case may be, whether by compromise,
settlement, judgment, or the abandonment by the other party of its
claim or defense.
Venue. If either Landlord or Tenant desires to bring an action
(f)
against the other in
connection with this Lease, such action shall be brought either in
the state courts or in the federal courts where the
Premises are located. In addition to any rights at law or in equity,
Landlord, at its election, may institute any such
action necessary to regain possession of the Premises or for any
other equitable relief against Tenant in the state
523376.3
- 18-

courts located in the county in which the Premises is located.

Landlord and Tenant consent to the jurisdiction of
such courts and waive any right to have such action transferred
from such courts on the grounds of improper venue
or inconvenient forum.
(g)
Chronic Defaults. Notwithstanding anything contained in this Lease
to the contrary, and
without limiting Landlord's other rights and remedies under this
Lease, at law or equity, if Tenant is in monetary
Default more than two (2) times within any twelve (12) month
period during the Term, then irrespective of whether
or not such Default has been or is subsequently cured, Landlord
, at its sole election, may do one or more of the
following:
(I)
Increase the Security Deposit by an amount that Landlord determines,
in its sole
and absolute discretion, is necessary to protect its interests; provided
that such increased amount does not
exceed three (3) months of the then current monthly Rent payable
under this Lease, and which increase
shall be paid by Tenant immediately upon demand by Landlord
; and
(ii)
Require Tenant to pay all Rent due under this Lease by automatic
fund transfers
from Tenant's bank account, in accordance with procedures
designated by Landlord.
20.
HOLDING OVER. If Tenant retains possession of the Premises
or any part thereof after the end
of the Term or termination of Tenant's right to possession of the
Premises (it being agreed that Tenant's failure to
timely remove all Tenant's Premises and all the Required Remova
bles from the Premises shall also be considered a
retention of the Project by Tenant), then such retention of possessi
on shall be considered a tenancy "at will" or
"sufferance" (and not a month-to-month tenancy), and Tenant
shall pay Rent for such holding over in an amount
equal to the sum of (a) one hundred fifty percent (150%) of the
monthly Rent in effect immediately preceding such
holding over computed on a monthly basis for each of the first two
(2) months or partial months that Tenant remains
in possession, plus (b) two hundred percent (200%) of the monthly
Rent in effect immediately preceding such
holding over computed on a monthly basis for each month or partial
month that Tenant remains in possession after
such first two (2) months or partial months. In addition to the paymen
t of the amounts provided above, if Landlord
is unable to timely deliver possession of the Premises to a third party
as a result of Tenant's holdover then Tenant
shall be liable to Landlord for all damages including, but not limited
to, consequential damages that Landlord suffers
from the holdover. The provisions of this Section do not waive
Landlord's right of re-entry or right to regain
possession by actions at Law or in equity or any other rights hereund
er, and any receipt of payment by Landlord
shall not be deemed a consent by Landlord to Tenant's remainin
g in possession or be construed as creating or
renewing any lease or right of tenancy between Landlord and Tenant.
21.
SECURITY DEPOSIT. Tenant shall deposit the Security Deposit with
Landlord as security for the
performance of Tenant's obligations under this Lease. Upon the occurren
ce of a Default, Landlord may use all or any
part of the Security Deposit for the payment of any Rent or for the paymen
t of any amount which Landlord may pay
or become obligated to pay by reason of such Default, or to compens
ate Landlord for any losses or damages which
Landlord may suffer by reason of such Default. If any portion of
the Security Deposit is used, Tenant shall within five
(5) days after written demand therefore deposit cash with Landlord
in an amount sufficient to restore the Security
Deposit to its original amount. Landlord shall not be required to
keep the Security Deposit separate from its general
funds, and Tenant shall not be entitled to interest on the Security
Deposit. in no event shall the Security Deposit be
considered an advanced payment of Rent, and in no event shall Tenant
be entitled to use the Security Deposit for
the payment of Rent. If no Default by Tenant exists hereunder,
Landlord shall return the Security Deposit or any
balance thereof to Tenant within thirty (30) days after the end of the Term
and vacation of the Premises by Tenant.
Landlord shall have the right to transfer the Security Deposit to
any purchaser of the Building. Upon such transfer,
Tenant shall look solely to such purchaser for return of the Security Deposit,
and Landlord shall be relieved of any
liability with respect to the Security Deposit
21.
RELOCATION. Landlord expressly reserves the right to relocate Tenant
to other space within the
Building and/or to other space within another building that constitutes part
of the overall Ludlow Mills Premises
owned and operated by Landlord (a "Relocation"). Landlord shall provide
Tenant with at least Ninety (90) days prior
written notice of any Relocation, specifying in such written notice the specific
date upon which Tenant shall be
relocated and the new location to which Tenant shall be relocated. Tenant
shall cooperate fully with Landlord in
connection with such Relocation. Landlord shall pay all reasonable
costs and expenses incurred by Tenant in
523376.3
- 19 -

connection with a Relocation, provided that such costs and

expenses are directly attributable to the Relocation.
Landlord and Tenant agree to work cooperatively to
minimize any interference to Tenant's business operations
that
may be caused by a relocation. In the event that Landlo
rd proposes a Relocation, Tenant may, at its option exercis
e
in its sole discretion, elect to terminate this Lease by
delivering written notice of termination to Landlord within
thirty
(30) days after Tenant's receipt of Landlord's written
notice of a Relocation.
22.
ESTOPPEL CERTIFICATE. Tenant agrees from time to
time upon written request from Landlord,
to execute and deliver to Landlord or to any third party
designated by Landlord in such request, a written estopp
el
certificate (an "Estoppel Certificate") in the form
attached hereto as Exhibit 0, induding such additio
nal
statements as may be requested by Landlord, it being
agreed that each Estoppel Certificate may be relied upon
by
any prospective purchaser, Mortgagee, prospective Mortga
gee, or other person having or acquiring an interest
in the
Building. Tenant's failure to execute and deliver any
Estoppel Certificate to Landlord (or to any such designated
third
party) within ten (10) days after written request from
Landlord shall automatically constitute Tenant's approval
of the
requested Estoppel Certificate as though such Estopp
el Certificate had been executed and delivered by Tenan
t to
Landlord or such designated third party in form identic
al to the form submitted by Landlord to Tenant.
23.
SUBORDINATION. This Lease is and shall be expres
sly subject and subordinate at all times to
(a) any ground or underlying lease of the Land, now
or hereafter existing, and all amendments, renewals and
modifications to any such lease, and (b) the lien of
any mortgage or trust deed now or hereafter encumbering
fee
title to the Land and/or the leasehold estate under any such
lease. If any such mortgage or trust deed is foreclosed,
or if any such lease is terminated, upon request of the
mortgagee, holder or lessor, as the case may be (each,
a
"Mortgagee"), Tenant will attorn to the purchaser
at the foreclosure sale or to the lessor under such lease,
as the
case may be. Notwithstanding anything to the contrar
y contained herein, any Mortgagee may subordinate, in whole
or in part, its mortgage, trust deed or le se (as the
case may be) to this Lease by sending Tenant notice in
writing
subordinating such mortgage, trust deed or lens. to this Lease.
The foregoing provisions are declared to be selfoperative and no further instruments shall be required
to effect such subordination and/or attomment; provide
d,
however, that Tenant agrees upon request at any time by
any such Mortgagee (or by any purchaser at foreclo
sure),
to execute and deliver any instrument (a "Subordinat
ion Agreement") as may be required by such entity
to
confirm such subordination and/or Attomment. Tenant's
failure to execute and deliver any Subordination Agreem
ent
within ten (10) days after written request from Landlo
rd shall automatically constitute Tenant's acknowledgem
ent
and agreement that this Lease is subordinate (or superio
r as the case may be) to the mortgage, trust deed or lease,
as the case may be, identified in the Subordination Agreem
ent submitted by Landlord to Tenant.
24. TENANTS BROKER. Tenant represents to Landlo
rd that insofar as Tenant knows, no broker has
negotiated this Lease on Tenant's behalf or is entitled to
any commission by reason of its representation of Tenant
except as set forth in the Schedule. Tenant agrees to indemn
ify, defend and hold the Landlord Parties harmless from
and against any claims for a fee or commission made by
any broker claiming to have acted by or on behalf of Tenan
t
in connection with this Lease.
25.
NOTICES. All notices and demands to be given by one
party to the other party under this Lease
shall be given in writing, mailed or delivered to Landlord
or Tenant, as the case may be, at the address for such party
described in the Schedule above or at such other addres
s as either party may hereafter designate. In the event of
a
notice or demand sent by Landlord to Tenant, Landlord shall
also concurrently send a copy of such notice or demand
to Franchisor. Notices shall be delivered by hand or by
United States certified or registered mail, postage prepaid
,
return receipt requested, or by a nationally recognized overnig
ht air courier service or by a locally recognized courier
service. Notices shall be considered to have been given
upon the earlier to occur of actual receipt or two (2)
business days after depositing in the United States mail.
26.
CONDITION OF THE PREMISES. Landlord and Tenan
t acknowledge that as of the Delivery
Date the Premises are in the condition set forth in Exhibit E attache
d hereto and incorporated herein.
27.

MISCELLANEOUS.

(a)
Successors and Assigns. Subject to Section 16 of this Lease,
each provision of this Lease
shall extend to, bind and inure to the benefit of Landlo
rd and Tenant and their respective legal representatives,
successors and assigns; and all references herein to Landlo
rd and Tenant shall be deemed to include all such parties.
523376.3

- 20 -

(b)
Entire Agreement. This Lease, and the riders and exhibits
, if any, attached hereto which
are hereby made a part of this Lease, represent the
complete agreement between Landlord and Tenant; and
Landlord has made no representations or warranties
except as expressly set forth in this Lease. No modification
or
amendment of or waiver under this Lease shall be binding
upon Landlord or Tenant unless in writing signed by
Landlord and Tenant.
(c)
lime. If the date for payment of any sum or the performance
of any obligation under this
Lease by either party falls on a Saturday, Sunday or nationa
l holiday, then the date for such payment or performance
shall be extended to 5:00 p.m. Eastern Time on the first
business day following such Saturday, Sunday or nationa
l
holiday. Time is of the essence of this Lease and each
and all of its provisions, specifically including, without
limitation, the payment of Rent and the exercise of any
option or right in favor of Tenant under this Lease.
(d)
Execution and Delivery. Submission of this Lease for examin
ation or signature by Tenant
does not constitute a reservation of space or an option
for lease, and it is not effective until execution and delivery
by both Landlord and Tenant. Execution and delivery
of this Lease by Tenant to Landlord shall constitute an
irrevocable offer by Tenant to lease the Premises on the
terms and conditions set forth herein, which offer may not
be revoked for ten (10) business days after such delivery.
Tenant covenants, warrants and represents that: (I) each
individual executing, attesting and/or delivering this
Lease on behalf of Tenant is authorized to do so on behalf
of
Tenant, (ii) this Lease is binding upon Tenant, and (iii) Tenant
is duly organized and legally existing in the state of its
organization and is qualified to do business in the state
in which the Premises is located. Landlord covenants,
warrants and represents that: (i) each individual
executing, attesting and/or delivering this Lease on behalf
of
Landlord is authorized to do so on behalf of Landlord, (ii)
this Lease is binding upon Landlord, and (iii) Landlord is
duly organized and legally existing in the state of its
organization and is qualified to do business in the state in
which
the Premises is located.
(e)
Severability. The invalidity or unenforceability of any provisio
n of this Lease shall not
affect or impair any other provisions.
Joint and Several Liability. If Tenant is comprised of more
(f)
than one party, each such
party shall be jointly and severally liable for Tenant's
obligations under this Lease. Notices, payments and
agreements given or made by, with or to any one person
or entity shall be deemed to have been given or made by,
with and to all of them.
(g)
Force Majeure. Landlord shall not be in default hereund
er and Tenant shall not be
excused from performing any of its obligations hereun
der if Landlord is prevented from performing any of its
obligations hereunder due to any accident, breakage, strike,
delay in obtaining any governmental permit or license,
including any budding permit, shortage of materials, act
of God or other causes beyond Landlords reasonable
control. Tenant shall not be in default hereunder and Landlor
d shall not be excused from performing any of its
obligations hereunder if Tenant is prevented from perform
ing any of its obligations hereunder due to any accident,
breakage, strike, delay in obtaining any governmental permit
or license, including any building permit, shortage of
materials, act of God or other causes beyond Tenant's reasona
ble control; provided, however, that nothing contained
in this Section 27(g) shall excuse Tenant from its obligation
to perform any of its financial obligations under this
Lead, including without limitation, Tenant's obligation to pay Base
Rent when due.
(h)
Captions. The headings and titles in this Lease are for convenience
only and shall have
no effect upon the construction or interpretation of this Lease.
No Waiver. No receipt of money by Landlord from Tenant after
(i)
termination of this Lease
or after the service of any notice or after the commencing
of any suit or after final judgment for possession of the
Premises shall renew, reinstate, continue or extend the Term
or affect any such notice or suit. No waiver of any
default of Tenant shall be implied from any omission by
Landlord to take any action on account of such default if
such default persists or be repeated, and no express waiver
shall affect any default other than the default specified in
the express waiver and then only for the time and to the extent
therein stated.
No Recording. Except as otherwise specifically provided in
(j)
this Lease, neither Tenant (nor
anyone acting through, under or on behalf of Tenant) shall record
this Lease or a memorandum of this Lease in any
official records.
523376.3

- 21 -

(k)
Relation of Parties. It is the intention of this Lease to create the relation between
the
parties hereto of landlord and tenant and no other relation whatsoev
er, and nothing contained in this Lease
(including, without limitation, the method of determining Rent) shall be
construed to make the parties hereto
partners or joint venturers or to render either party hereto liable for any
of the debts or obligations of the other
party.
(I)
Recapture Right. If Tenant vacates or abandons the Premises for a period
of at least
three (3) months, then and notwithstanding the fact that such vacation
or abandonment may not ipso facto
constitute a Default, Landlord shall have the right to terminate this Lease and
recapture the Premises by giving
Tenant a written notice thereof at any time after the expiration of said 3-month
period; provided, however, Tenant
does not re-occupy the Premises for the Permitted Use within thirty (30)
days after receipt of such notice from
Landlord. In the event Landlord elects to terminate this Lease pursuant to
the terms and conditions of this Section
270), then this Lease shall terminate and neither party shall have any further
liability to each other under this Lease
except for those obligations that specifically survive the termination or
expiration of the Term of this Lease.
Notwithstanding anything to the contrary herein contained, the terms and conditions
of the Section 270) shall not
apply if Tenant temporarily vacates the Premises for a period of time not to exceed
three (3) consecutive months for
the purpose of re-modeling the Premises or for a period of time not to exceed six
(6) consecutive months if due to a
casualty.
(m)
Counterparts This Lease may be executed in counterparts and each copy of this
Lease to
which is attached counterpart signature pages collectively containing the signatures
of all of the parties hereto shall
be deemed for all purposes to be a fully executed original of this Lease.
(n)
Limitation on Landlord's Liability. It is expressly understood and agreed by Tenant
that
none of Landlord's covenants, undertakings or agreements are made or
intended as personal covenants,
undertakings or agreements by Landlord or the members in Landlord, and any
liability of Landlord or the members in
Landlord for damages or breach or nonperformance by Landlord or otherwise
arising under or in connection with this
Lease or the relationship of Landlord and Tenant hereunder, shall be collectible only
out of Landlord's interest in the
Premises, as the same may then be encumbered, and no personal liability
is assumed by, nor at any time may be
asserted against any of the Landlord Parties, all such liability, if any, being expressly
waived and released by Tenant.
Tenant further expressly understands and agrees that Landlord's agent executes
this Lease, not in its own right but
solely as Landlord's agent and that nothing in this Lease shall be construed as
creating any liability whatsoever
against such Landlord's agent, its members or their respective shareholders, directors,
officers or employees and in
particular, without limiting the generality of the foregoing, there shall be no liability
to pay any indebtedness or sum
accruing hereunder, or to perform any covenant or agreement whether express or
implied herein contained, it being
agreed that Landlord shall have sole responsibility therefor. Landlord shall have the
right to sell or convey and/or
master lease the Building, and in connection therewith, to transfer and assign its
rights under this Lease, and upon
any such transfer and assignment Landlord shall be released ft um all obligation
s of the landlord under this Lease
accruing after the effective date of such transfer or assignment, and Tenant agrees
to look solely to the successor in
interest of Landlord for the performance of such obligations.
(o)
parking Areas. The portions of the Common Areas dedicated to parking, loading
and
unloading shall be used only for those purposes. In the event the event the parking
areas, or any portion thereof,
are used in any other matter Landlord shall be entitled to: (i) charge a monthly
surcharge as an Expense in an
amount equal to the amount of square footage of parking area so occupied multiplied
by a ratio the numerator of
which is the Base Rent over the denominator being the number of square feet comprisin
g the Premises; (ii) remove
any vehicle, trailer or other object, at Tenant's expense, without liability to Landlord;
and/or (iii) dedare a Default of
this Lease under and be entitled to all remedies hereunder as set forth in paragraph 18.
(p)
Governing Law. This Lease shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.
END OF TERMS AND CONDITIONS

523376.3

- 22 -

OR AS OTHERWISE APPROVED

PROPOSED PARKING AREA (10)

INCLUDING ONE (1) ADA SPACE

Site Stockhouse
Demolished

Norpin Cleanup Site

Mill Office

(Location)

Stockhouse 122

(COMMON ARM)

CONNECTOR

77r^

EX STING ACCESSWAY

Stockhouse 122
Subject of Lease

IttevIstel Dee. 6,2013

EXHIBIT A

Iron Duke Brewing

Stockhouse 122 Lease Area
Outlined in R

COMMON
PARKING

EXHIBIT B
LOCATION OF COMMON AREAS OUTSIDE OF BUILDING

Common Area
(to be shared with neighboring tenant)

EXHIBIT C
COMMENCEMENT DATE AGREEMENT
1:::EZEmege_.
THIS COMMENCEMENT DATE AGREEMENT, made this J3 day of Novembe
r
, 2013, by
and between Westmass Area Development Corporation ("Landlord") drid Iron
Duke Brewing LLC ("Tenant").
W ITNESSETH:
WHEREAS, Landlord and Tenant have entered into that certain Lease
Agreement (the "Lease) dated
IS,
2013, for the lease of certain space in that certain building known as Building
122 and located at
100 State Stteet Ludlow Ma, 01056
WHEREAS, Landlord and Tenant wish to set forth their agreements
as to the commencement of the term
of the Lease.
NOW, THEREFORE, in consideration of the Leased Premises as described
in the Lease and the covenants
set forth therein Landlord and Tenant agree as follows:

written.

1.

The Commencement Date of the Term of the Lease is Novemberl, 2013.

2.

The Base Rent Commencement Date is March 1, 2014.

3.

The Expiration Date of the Term of the Lease is October 31, 2016.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as

of the day and year first above

TENANT:
By.1
4
/444...._
(
1... fro
It's:
By:

)2,(j4..i

Its:

JANDLORD:

PC24

EXHIBIT D
ESTOPPEL CERTIFICATE

(Tenant") hereby certifies to you that Tenant leases from Westmass

Area
Development Corporation ("Landlord") approximately
gross leaseable square feet of space (the
"Premises") in that certain building located at
(the "Premises') pursuant to that certain Lease Agreement dated
by and
between Landlord and Tenant, as amended by
(collectively, the "Lease"), a true and correct
copy of which is attached hereto as Exhibit A. Tenant hereby further
certifies that as of the date hereof:
1.
The Lease is in full force and effect and has not been modified, suppleme
nted or amended, except
as set forth in the introductory paragraph hereof.
2.

Tenant is in actual occupancy of and has accepted the Premises.

3.
Landlord has performed all obligations under the Lease to be performed
by Landlord, including,
without limitation, completion of all tenant improvement work required
under the Lease and the payment of all
required allowances and contributions therefor. Tenant is not entitled to any
further payment, credit or allowance for
tenant improvement work.
4.

The initial

term of

the

Lease commenced

and shall expire

5.
Tenant has no options or rights to renew or extend the term of the
Lease or to expand the
Premises, except as follows:
6.
follows:

Tenant has not paid any rent or other payments more than one (1) month
in advance, except as

7.
Base Rent and Tenant Additional Rent Amount have been paid through
. There
currently exists no claims, defenses or rights of set-off to or against the
obligations of Tenant to pay Base Rent or
Tenant Additional Rent Amount or relating to any other term, covenant or condition
under the Lease.
8.
There are no concessions, bonuses, free rent, rebates or other matters affecting
the rent payable
under the Lease, except as follows:
9.

No security or other deposit has been paid under the Lease,

except as follows:

10.
Landlord is not currently in default under the Lease and there are no events
or conditions existing
which, with or without notice or the lapse of time, or both, could constitute
a default of the Landlord under the Lease
or entitle Tenant to offsets or defenses against the prompt
payment of rent, except as follows:
Tenant is not in default under any of the terms and conditions of the Lease
nor is
there now any fact or condition which, with notice or lapse of time or both, will become
such a default.
11.
Tenant has not assigned, transferred, mortgaged or otherwise encumbered its
interest under the
Lease, nor subleased any of the Premises, nor permitted any person or entity to
use the Premises except as follows:
12.

Tenant has no rights of refusal or options to purchase the Premises.

13.
The Lease represents the entire agreement between the parties with respect
to Tenant's right to
use and occupy the Premises.
- 1-

Tenant acknowledges that the parties to whom this Estoppel Certificate is addressed will be relying upon
the
accuracy of this Estoppel Certificate In connection with their acquisition and/or financing of
the Premises.
IN WITNESS WHEREOF, Tenant has caused this Estoppel Certificate to be executed this
20 .
TENANT:

By:
Name:
Title:

2-

day of

Exhibit G

Exclusivity:

Exclusivity will be granted when the last of the listed

contingencies are secured by Iron Duke
Brewing, LLC and documented to Westmass.

Lease Commencement Date: November 1, 2013

Rent commencement: March 1, 2014
All licensing required for full operation as a brewery at the Ludlow
Mills.

Exclusivity is only for the brewing of beer at the Mill Complex

during the lease term.

Exclusivity shall terminate upon the occurrence of any Event

of Default, regardless of whether
the Tenant subsequently cures the act or omission that
formed the basis for the Event of
Default."
Beer and other spirit sales will not be exclusive to Iron Duke Brewe
ry, LLC and will be allowed
by other tenants who may operate a restaurant, tavern or other
Westmass approved uses.
Beer, wine and alcohol distribution will not be exclusive to Iron
Duke Brewery, LLC and will be
allowed by other tenants who may operate a beer and/or spirits
distribution center.

Tenant Acceptance

-A,z5,,tz

Date
Date

21
2
/ 3A)
1;;?- t 3

EXHIBIT B

Westmass
Westmass Ares Devalopment Corpom&s

August 11, 2016

Nicholas Morin
Michael Marcoux
Iron Duke Brewery
PO Box 402
Ludlow, MA 01056

Certified Mail No: 7013 30200001 1143 1142

Return Receipt Requested

Re: Stockhouse #122

Dear Gentlemen:
This letter is intended to communicate concerns Westm
ass Area Development Corporation (Westmass)
has with Iron Duke Brewery currently as a tenant at
Stockhouse #122 in the Ludlow Mills. These concerns
have been the subject of conversations and meetings
between the two parties for many months. It should
come as no surprise that Westmass has these conce
rns, but the time has come to bring these concerns to
resolution.
The concerns can be summarized as follows:
1.

Operation of Food Trucks and Food Vendors in the Comm

on Area of the Ludlow Mills It is our
understanding that Food Trucks and other Food
Vendors are operating directly adjacent to
Stockhouse #122 either by agreement with or at the
invitation of Iron Duke Brewery. Westmass is
responsible for the activities that occur in the Comm
on Area of the Ludlow Mills including the area
outside of your leased premises. Westmass does not
want a food truck operation to continue in the
area outside your leased premises, and you must imme
diately stop any association with said food
trucks and food vendors.

2.

Live Musical Entertainment/Other Astivities It is our

understanding that Iron Duke Brewery is hosting
live musical entertainment and other activities
at its leased premises. These activities are not
permitted pursuant to the lease, specifically "3. Use".
Iron Duke Brewery was permitted to set up in
the Ludlow Mills primarily as a manufacturing opera
tion for production and wholesale distribution of
products off site along with a small "tasting room"
for a limited number of patrons to sample the
products manufactured on site. Westmass must insist
that only permitted uses, pursuant to the
lease, occur at Iron Duke Brewery.

3.

Parking The lease sets forth ten parking spaces to be

used "in common" in a parking lot located
north of Building #123A and ten "exclusive" parking
spaces in a parking lot located east of Building
#122. The lease further states that if additional
parking is required, it will be discussed among the
Parties in advance.

255 Pacigetie Street Chicopee, MaesaChusetts

01022-1308 (413) 593-6421 wmv.westmassd

Affiliated with the Economic Development Council

evelopmentcOm

of Western Massachusetts, Inc

Westmass Area Development Cor

poration
August 11, 2016
Page 2
Stockhouse #122

Parking (continued) - Excess par

king of vehicles is occurring in the
paved and unpaved area of the
Ludlow Mills, the Mills access driv
e, and in areas adjacent to Stockh
ouse #122 and on the town's
Riverwalk easement directly adja
cent to the ten foot wide Riverwalk.
Such parking beyond the terms
of the lease has created concerns for
Westmass involving liability issues,
emergency access and public
safety. This letter provides notice
to Iron Duke Brewery that parking
for
your patrons must comply
with the lease and additional par
king is not permitted.
The operation of Iron Duke Brewer
y has grown significantly since you
first moved into the premises in 201
Such growth is a testament to
3.
your entrepreneurial success.
How
ever, your growth and the activitie
occurring associated with your Bre
s
wery has created liability issues and
caused the concerns outlined above.
Westmass is confident we can rea
ch a reasonable solution, and I sug
gest that we meet as soon as possibl
to discuss these issues. I would ask
e
that you contact Westmass once
you are in the receipt of this letter.
Sincerely,

Eric Nelson
President & CEO
cc: W. Rooney, Esq.

Westmass Area Development Corp

255 Padgette Street
Chicopee, MA 01022

Sold
To:

Number:
Page:
Date:

IN000000290
1
5/27/2015

Iron Duke Stewing LLC

PO Box 402
Ludlow, MA 01056

Customer No.
10-IRODUK

Terms
Due Upon Receipt

3escription

Amount

Annual water & sewer

Due Date
5/27/2015

Remit To:
Westmasa Area Dev. Corp.
255 Padgette Street
Chicopee, MA 01022

225.92

Amount Due
225.92

Total amount

225.92

Payment received

0.00

Amount due

225.92

EXHIBIT C

Westmass
Westmass Area Development Corporation

September 19, 2016

Nicholas Morin
Michael Marcoux
Iron Duke Brewery
PO Box 402
Ludlow, MA 01056
Dear Gentlemen:
_This letter is a fnllow_up to our
letter to you dated August 9, 2016.

held on August 22, 2016 and the concerns contained in the previous -

Westmass' Board of Directors has reviewed the concerns previously expressed to Iron Duke Brewery and would
like to remind you that the current Lease under which you are operating your business does not permit the
following activities:
1. Operation of Food Trucks and Food Vendors in the Common Area of the Ludlow Mills;
2. Food Service in the iron Duke Brewery Lease Space;
3. Live Musical Entertainment/Other Activities which create the need for parking of vehicles over the
number of spaces provided;
4. Parking in areas of the Ludlow Mills grounds beyond the 10 spaces constructed by Westmass for
your use directly adjacent to your business and the 10 spaces designated "in common" that could
be utilized by Iron Duke patrons in the existing paved lot north of Stockhouse #123A at Ludlow Mills.
At the meeting on August 22, 2016, Iron Duke Brewery agreed to submit its business concept going forward
with the total number increased patrons and proposed parking requirements to support such proposed
changes. As of this date, this information has not been received by Westmass.
Westmass acknowledges your request to extend your current lease which expires on October 31, 2016 under
the existing Terms and Conditions contained in the Lease for Stock house #122
Westnuss wcruki
ringthese Lunt-erns end the tease extension to d resolution and-urges yau-to
submit
this information as soon as possible. We look forward to conducting a productive discussion once your
information is received.
Sincerely,

ric A. Nelson
President/CEO
cc: Attorney William Rooney
Attorney Mike Siddall
Lynn Kucejko, CFO

255 Pedgette Street Chicopee, Massachusetts 01022-1308 (413) 593-6421. www.wesbnessdevelopmentcorn

AtiMated with the Economic Development Council of Wintern Massachusetts, Inc.

Westmass
lt
vo

vvestmass Amapa
September 19, 2016
Certified Mail No: 7008 1830 0002 3033 4044
Return Receipt Requested

Nicholas Morin
Michael Marcoux
Iron Duke Brewery
PO Box 402
Ludlow, MA 01056
Dear Gentlemen:

This letter is a follow up to our meeting held on August 22, 2016 and the concerns contained in the previous
letter to you dated August 9, 2016.
Westmass' Board of Directors has reviewed the concerns previously expressed to Iron Duke Brewery and would
like to remind you that the current Lease under which you are operating your business does not permit the
following activities:
1. Operation of Food Trucks and Food Vendors in the Common Area of the Ludlow Mills;
2. Food Service in the Iron Duke Brewery Lease Space;
3. Live Musical Entertainment/Other Activities which create the need for parking of vehicles over the
number of spaces provided;
4. Parking in areas of the Ludlow Mills grounds beyond the 10 spaces constructed by Westmass for
your use directly adjacent to your business and the 10 spaces designated "in common" that could
be utilized by Iron Duke patrons in the existing paved lot north of Stockhouse #123A at Ludlow Mills.
At the meeting on August 22, 2016, Iron Duke Brewery agreed to submit its business concept going forward
with the total number increased patrons and proposed parking requirements to support such proposed
changes. As of this date, this information has not been received by Westmass.
Westmass acknowledges your request to extend your current lease which expires on October 31, 2016 under
the existing Terms and Conditions contained in the Lease for Stock house #122
Westmass would like to bring these concerns and the lease extension to a resolution and urges you to submit
- this information as Soon as possible. We look forward to conducting a proactive discussion once your
information is received.
Sincerely,

Eric A. Nelson
President/CEO
cc: Attorney William Rooney
Attorney Mike Siddall
Lynn Kucejko, CFO

255 Padgetle Street Chicopee, Massachusetts 01022-1308 (413) 5838421 www.westmassclevebpmentcom

Affiliated with the Economic Development Council of Western Massachusetts, Ma

EXHIBIT D

Westmass
wis Development
Corporation

October 27, 2016

Certified Mail No: 7008 1830 0002 3033 2941

Return Receipt Requested

Nicholas Morin
Michael Ma rcoux
Iron Duke Brewery
PO Box 402
' Ludlow, MA 01056
Re: Lease Agreement Renewal
Dear Gentlemen:

This letter follows up on our meeting held on August 22, 2016 and the concerns contained in the previous
letters to you dated August 9th, and September 19, 2016. If you will recall, Iron Duke was to provide
Westmass the projected number of patrons and associated parking which would be generated if your
business undertook the changes Iron Duke envisions.
Because this requested information has not been received, Westmass specifically and solely
acknowledges only your request to extend your current lease and permitted uses for a period of two (2)
years. However, Westmass remains open to continuing a conversation at your request to address
your
business concerns.
Westmass has reviewed this extension and wishes to provide clarification and state clearly to Iron Duke
Brewery the conditions of its current lease and its proposed two-year extension.
Permitted uses allowed are activities primarily as a production facility for brewing beer. The Tasting Room
portion of your business, utilized solely for beer Iron Duke produces is not the intended Primary Use. No
other use or purposes whatsoever are allowed without the prior consent of Landlord (Westmass). Iron
Duke Brewery's current lease agreement with the 2-year extension for the Ludlow Mills space does not
permit the following activities:
Operation of Food Trucks and Food Venckws in the Common Area of the Ludlow Mills;
Food Service within the Iron Duke Brewery Lease Space;
Live Musical Entertainment'
Other Activities which create the need for parking of vehicles over the number of spaces
provided in the Lease; (10 spaces constructed by Westmass for your use directly adjacent to
your business and parking in areas of the Ludlow Mills grounds beyond the already cited 10
spaces with an additional 10 spaces designated "in common" that could be utilized by Iron Duke
patrons in the existing paved lot north of Stockhouse #123A at Ludlow Mills displayed on Exhibit
A (Dec. 6, 2013) of the Lease.
5. Storage of Containers on the Ludlow Mills grounds outside of the Leased Premises not
specifically cited in the Lease or displayed on Exhibit A (Dec. 6, 2013).

as.
2.
3.
4.

255 Padgette Street ChicCpee, Massachusetts 01022-1308 (413) 503-6421. wvamwestrnessdevelopment.com

Affiliated with the Economic Development Council of Western Massachusetts, Inc

Pg 2
Lease Agreement Renewal
In the spring of 2015, a new water meter was installed at Stockhouse #122 at Westmass' cost in order to
correctly and accurately measure water usage for Iron Duke's Brewery production process. Starting with
a base reading on November 1, 2016, Westmass will be invoicing Iron Duke Brewing going forward
monthly for its water usage. Westmass also installed at its cost, a new electric meter in December of 2015
and has been reading and invoicing Iron Duke Brewer for electric use since January of this year.
In an effort to provide Iron Duke Brewery further clarification to the types of activities permitted in regards
to the Tasting Room within Stockhouse #122, Westmass will research the number of allowable patrons
and employees your Tasting Room use can safely accommodate based on such factors as the number of
approved parking spaces assigned in the current lease, applicable State Fire codes and other public safety
regulations that Westmass and Iron Duke Brewery must adhere to. As always the efforts of Westmass are
framed with the intention of encouraging reasonable tasting room activity and ultimately ensuring public
safety for your patrons and employees as a well as other Tenants and the Public at Ludlow Mills.
Since Westmass has not received the requested information and the approaching expiration of your
current lease on October 31, 2016, Westmass would like to obtain your acknowledgement and agreement
(see below) with these clarifications and terms as soon as possible. Please sign this letter and return to
Westmass so that a full two-year lease extension document can be drafted for your execution.

Eric A. Nelson
President/CEO
cc: Attorney William.Rooney
Attorney Mike Siddall
Lynn Kucejko, CFO
Acknowledgement and agreement with the terms, conditions and clarification as outlined in the letter
above.
Iron Duke Brewery, LLC
Date:

Date:
Nicholas Morin

Michael Marcoux

EXHIBIT E

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

PHILIP J. CALLAN, JR
GARY P. SHANNON
ROBERT L. LEONARD
A. CRAIG BROWN
L. JEFFREY MEEHAN
JOHN J. MCCARTHY
BARRY M. RYAN
DEBORAH A. BASILEt
PAUL M. MALECK
W. GARTH JANES
GREGORY A. SCHMIDT
MICHAEL D. SWEET'
GREGORY M. SCHMIDT
MICHAEL S. SCHNEIDER,
THOMAS M. GROWHOSKI
BRENDA S. DOHERTY
KAREN K. CHADWELL1
JESSE BELCHER-TIMME
JOSE A. AGUIAR*
REBECCA M. THIBAULT
ANGELINA P. STAFFORD'
ERIN J. MEEHAN

ATTORNEYS AT LAW
ONE MONARCH PLACE, SUITE 1800
SPRINGFIELD, MASSACHUSETTS 01144.1900
TELEPHONE (413) 733.3111
FAX (413)734.5910

60 STATE STREET
NORTHAMPTON, MA 01060
TELEPHONE (413) 584-1500
FAX (413) 584-1670

wWw.dwpm.com
E-MAIL: Inownectimpmmom

COUNSEL
WILLIAM M BENNETT
ROSEMARY CROWLEY
DAVID J. MARTELS (RETIRED)
DUDLEY B. WALLACE
(1900.1987)
LOUIS W. DOHERTY
(1896-1990)
FREDERICK S. PILLSBURY
(1919-1996)
ROBERT E. MURPHY
(1919.2003)
SAMUEL A, MARCELLA
(1931-2004)
PAUL S. DOHERTY
(1934.2016)
REGISTERED PATENT ATTORNEY
ALSO ADWITES IN CONNECTICSI
ALSO AUNTIES INNEW YORK
ALSO AMITIESIN DISTRICT OP GOWNS
ALSO ADMITTED IN BOUM CAROLINA

November 29,2016

VIA OVERNIGHT MAIL

Nicholas Morin, Manager
Iron Duke Brewing LLC
100 State Street - Suite 122
P.O. Box 402 - Building 122
Ludlow, MA 01056
Michael Marcoux, Manager
Iron Duke Brewing LLC
100 State Street - Suite 122
P.O. Box 402 - Building 122
Ludlow, MA 01056
Re:

Notice of Default

Dear Mr. Morin and Mr. Marcoux:

We represent Westmass Area Development Corporation ("Westmass"). Westmass and
Iron Duke Brewing LLC (the "Tenant") are parties to a Lease Agreement dated December 13,
2013 (the "Lease"). This letter constitutes a Notice of Default by the Tenant under the Lease
that is being delivered to you pursuant to Paragraph 17(a) of the Lease. All terms not otherwise
defined in this Notice of Default shall have the same meanings as set forth in the Lease.
The Permitted Use of the Premises pursuant to the Lease is the operation of a
microbrewery business, which includes the production and sale of beer made at the Premises for
consumption within the Premises and for the sale of beer for consumption off Premises. The
Permitted Use was modified partially pursuant to Paragraph 3(b) of the Lease, which provides
that the Permitted Use "includes the sale of beer and merchandise at the microbrewery that will
be operated by Tenant within the Premises (the "Brewery"), including the sale of beer for
632713

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

November 28, 2016

Page 2
consumption within the Brewery and the sale of beer for consumption off Premises through any
and all legal means, but in no event on any other part of the Ludlow Mills property". In
connection with this expanded description of the Permitted Use, the Tenant agreed to comply at
all times with the following:
(i)
Tenant shall comply with all of applicable laws, statutes, ordinances and
regulations relating to the sale of beer for consumption within the premises where such beer is
sold and for consumption at home, including without limitation all applicable requirements of the
License Commission for the Town of Ludlow, Massachusetts and the Alcoholic Beverages
Control Commission for the Commonwealth of Massachusetts;
(ii)
Tenant shall periodically monitor and patrol the Common Areas surrounding the
Premises for the purpose of ensuring that individuals who purchase beer from the Brewery for
consumption at home do not consume such beer on any of the Common Areas;
(iii) Tenant shall ensure at all times that the operation of the Brewery within the
Premises does not interfere in any manner whatsoever with the use and occupancy of other
portions of the overall premises of which the Premises; and
(iv)
Tenant shall comply with such additional reasonable rules and regulations relating
to the operation of the Brewery within the Premises as Landlord may establish from time to time
in order to ensure that the operation of the Brewery within the Premises does not disrupt or
interfere with the overall operation by Landlord of the premises of which the Premises are a part
and/or the use and enjoyment by Landlord's other tenants of the space that such other tenants
lease from Landlord and/or the Common Areas.
As set forth in the October 27, 2016 letter to you from Westmass, the Tenant has engaged
in numerous activities in connection with its occupancy of the Premises that are not encompassed
within or part of the Permitted Use, including without limitation the following:
Operation of food trucks and food vendors in the Common Areas;
Food service within the Premises;
Live musical entertainment within the Premises;
Numerous other activities that create the need for the parking of vehicles
substantially in excess of the twenty (20) parking spaces that are appurtenant to
the Premises, ten (10) of which are exclusive and ten (10) of which are in
common with all others entitled thereto, resulting in the parking of patrons of the
Tenant in Common Areas, thereby interfering in a material way with the use and
occupancy of other portions of the overall premises of which the Premises are a
part; and
632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

November 28, 2016

Page 3

The storage of containers outside of the Premises on Common Areas that are not
identified in the Lease as a storage area that is appurtenant to the Premises.
In addition, it is my understanding that the Tenant has wrongfully taken possession of
Stock House 222, which is located immediately adjacent to the Premises, and the Tenant is
wrongfully using Stock House 222 for storage purposes. All of the foregoing activities and
actions of the Tenant constitute violations of the terms and conditions of the Lease (collectively,
the "Occupancy Violations").
In addition, Westmass has reviewed the two (2) Licenses issued by the Town of Ludlow
to the Tenant, consisting of the "License for InnHolders, Common Victuallers and Other Keepers
of Restaurants and Other Establishments" Number 226-16 (the "Entertainment License") and the
"License to Expose ,Keep for Sale, and to Sell (Pouring Permit) Malt Beverages Manufactured
on Site to be Drunk on the Premises", License 063200054 (the "Pouring License"). Copies of
these Licenses are enclosed. Although the Lease does not permit any entertainment within the
Premises whatsoever, the Entertainment License was obtained by the Tenant for the purpose of
conducting amusements within the Premises, consisting of "live entertainment, recorded or live
music, radio, television". The offering of live entertainment in the Premises constitutes a
violation of the Lease (the "Permitted Use Violation").
The Pouring License describes the Licensed Premises as follows:
"Iron Duke Brewing will be a tasting room and manufacturing brewery. Tasting room
access will be through an exterior door in the east wall of the building. Entering through the
door and looking west you see the manufacturing entrance double doors and an right (8) foot
wall that separates the brewery from the tasting room and runs the length of the building north to
south. Looking to your right, north you will see bathroom situated in the northeast corner of the
tasting room. You will also see a door located on the north wall of the brewery which locks and
leads to an adjacent building which is part of the brewery (emphasis supplied). Looking to your
left, south, you will see a bar area where beer is poured and beyond that you will see a small
seating area for patrons (emphasis supplied). Attached is a small deck/patio to the existing
building which will be directly connected to the existing taproom space. The deck/patio will be
enclosed with a railing and egress will only be allowed with an emergency exist off the deck
space".
Notwithstanding the fact the Premises specifically exclude Stock House 222, which is the
"adjacent" building which is identified in the Pouring License as part of the Brewery", the Tenant
wrongfully and illegally identified Stock House 222 as part of the Brewery, which is expressly
limited in accordance with terms of the Lease to Stock House 122. In addition, the Pouring
License specifically references "a small seating area for patrons", and Westmass has observed on
multiple occasions the use of long tables and multiple seats that transform the Premises from a

632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

November 28, 2016

Page 4
tasting room with a small seating area for patrons to what appears to be a taproom or bar, in
violation of the terms and conditions of the Lease (collectively, the "License Violations").
Finally, Westmass recently invoiced the Tenant for actual water usage from March, 2015
through October 28, 2016. Ihave enclosed a copy of the invoice in the amount of $1,124.54. In
response to receiving this invoice, the Tenant stated "based on our current Lease, as executed on
12/13/2013, water is to be invoiced annually: rate is based on employee count divided by actual
costs". Since the Tenant was not invoiced for any water usage for the period beginning in
March, 2015 and continuing through the end of October, 2016, an invoice for water usage was
certainly timely. The use of employee counts to attribute water usage was only applicable when
there was a shared water meter. As a result of the installation by Westmass of a water meter that
measures water usage solely at the Premises, there is no question that the Tenant is obligated to
pay the invoice dated November 16, 2016 in the amount of $1,124.54 (the "Payment Violation").
The Occupancy Violations, the License Violations, the Permitted Use Violation and the
Payment Violation all constitute violations by the Tenant of the terms and conditions of the
Lease. In accordance with Paragraph 17(a) of the Lease, the Tenant shall have a period of thirty
(30) days from receipt of this Notice of Default to cure the various defaults by the Tenant that are
the subject of this Notice of Default. The curing of such defaults shall consist of the following:
1.
The complete discontinuance of the Occupancy Violations, including without
limitation the removal by the Tenant of all of its property from Stock House 222.
2.
The surrender by the Tenant of the Entertainment License and the correction by
the Tenant of the description of the Licensed Premises on the Pouring License, thereby curing
the Permitted Use Violation and the License Violations.
3.
The payment by the Tenant of the enclosed invoice for the Tenant's water usage
in the amount of $1,124.54.
Please understand that if the Tenant does not cure the Occupancy Violations, the License
Violations, the Permitted Use Violation and the Payment Violation within thirty (30) days from
the date of this letter as required pursuant Paragraph 17(a) of the Lease, the Landlord will
proceed to exercise any and all of its remedies under the Lease, which include the right to
terminate the Lease. Please understand as well that in accordance with Paragraph 17(e) of the
Lease, as a result of the Defaults enumerated in this letter, the Tenant is obligated to reimburse
Westmass for all reasonable costs and expenses incurred by Westmass by reason of such
Defaults (including legal fees), whether or not Westmass institutes any legal action or proceeding
against Tenant by reason of such Default.
This letter does not purport to enumerate all of the current Defaults by Tenant in
connection with the performance of its obligations under the Lease and occupancy of the
Premises, and Westmass expressly reserves the right to notify the Tenant of any and all
632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

November 28, 2016

Page 5
additional Defaults by the Tenant under the Lease. This letter is being sent to the Tenant without
prejudice to the exercise by Westmass of all of its rights and remedies arising out of the Tenant's
ongoing Default, and Westmass expressly reserves the right to exercise all such rights and
remedies. Please refrain from having any contact whatsoever with Westmass, and any
communications relating to this Notice of Default should be directly solely to the undersigned.
Sincerely,
A. Craig Brown
ACB/vak
Enclosure
cc:
Eric Nelson

632713.1

Westmass Area Development Corp

255 Padgett Street
Chicopee, MA 01022

Sold
To:

Number:
Page:
Date:

IN000000390
1
11/16/2016

Iron Duke Brewing LLC

PO Box 402
Ludlow, MA 01056

Ludlow

Customer No.
10-1RODUK

Description

Due Date
11/16/2016

Remit To:
Westmass Area Dev. Corp.
255 Padgette Street

Terms
Due Upon Receipt
Usage in Cubic Feet

Actual water usage from March 2015

Installation of water meter to 10/28/16
meter reading per lease clause
(see attached)

Mills

52,304

Amount

Rate/CF

.0215

1,124.54

Amount Due
1,124.54

Total amount

1,124.54

Payment received

0.00

Amount due

1,124.54

Chicopee, MA 01022

Taut tilt

v10

11.CM

P.PI A P C-L4

NO.068
13 FAO

c ra a[P

#002

OPPAPP

LICENSE
ALCOHOLIC BEVE'

GES

A
THE LICENSING BOARD OF
TFIE TOWN OP LUDLOW, MASSACIIUS
TTS
ITERERY GRANTS A

COMMON VICTU LER

2016

License to Expose, Keep for Sale nd to Sell

*POURING PERMIT*

Malt Beverages
**MANUFACTURED ON SITE *

To

To Be Drunk On 17te

ensises

IRON DUKE BREW1NCI LLC

PITCH
S MORIN, MGR.
DBA/1RON DUKE BREWING
P.O. BOX 402,100 S ATE ST., STE 122
on the folloWing described premises: Iron Duk
e Brewing will be :tasting room and
manufacturing brewery. Tasting room acce
ss will be through an ex 'or door on the east
wall of
the building. Entering through the door and look
ing west you see e manufacturing entra
nce
double doors and an eight fixtt wall that separates
the brewery from c tasting room and rum; the
length of the building north to south. Looking
to
situated in the northeast corner of the tasting roomyour right, north, ou will see bathrooms
. You will also s a door located on the north
wall of the brewery which locks and leads to an
adjacent building w ich is part of the brewery.
Looking to your left, south, you will see a bar
area where beer is po red and beyond that you
will see a small seating area for patrons. Atta
ched is a small deck/p io to the existing build
ing
which will be directly connected to the existing
taproom space. Th deck/patio will be enclo
sed
with a railing and egress will only be allow
ed with an emergency ex t off of the deck space.
This license is granted and accepted upon the
express co Mon that the licensee
shall, in all respects, conform to all the prov
isions of the Liquor ntrol Act, Chapter 138
of the General Laws, as amended, and any
rules or regulations ade thereunder by
the
licensing authorities. This license expires
December 311, 2016, less earlier
suspended,
cancelled or revolted.
IN TESTIMONY WHEREOF, the undersig
ned have her unto affixed their official
signatures this 1st
day of December
2015.
The Hours during which Alcoholic
Beverages may he sold are
From Monday Thursday
8:00 a.m. -1:00 a.m.
Friday and Saturday
8:00 a.m. 2:00 a.m.
Sunday
12:00 noon 7 12:00 midnight

.24

LICENSE 063200054
THIS

LICENSE SHALL $E DISPLAYED ON THE PREMISES IN

BOARD OF S ECTMEN
Licen
earth
A CONSPICUOUS POSsing
MO 'WHERE IT CAN EASILY BE'READ

raniraftspokr

151
61
ft
0
Co

Brewery

WO iNUMBEM

Located10 State Street. Su

ite 1 72
:STREET

MUM
THE COMMONWEALTH OF MASSAC
FEE
HUSETTS
236
-26
Tow
n
Ludlow
of
$20.00
LICENSE FOR INNHOLDE
RS. COMMON VICTUALLERS
A ND OTHER KEEPER
S OF RESTAURANTS AND OTH
ER ESTABLISHMENTS
in accordance with the provision
s of Qiapter 1.40 of the CP..tteral Law
the Acts of 1926, and amendm
s as amended by Chapter 299 of
ents thereto, LICENSE
Trap Duke Brewin is hereby granted to
g
LLC
to conduct the amusements as here
in described inconnectio
n
with
hinit
ter
regu
eicmaller, a owner,
lar
man
ager
or
cont
roller of a cafe, restaurant or she: eatin business of innholder, common
premises owned by
g or drinking establishment. on the
Nicholas Morin
of
Ludlow
Description of premises:

Description of amusements to conducte

be
d: Live entertainment, record
ed or live
music, radio, televis
ion
To be tom:Meted on week days
betvreen the hours of Regular business hours

MOSES & W.1.11/1/Fes

S LICENSE MUST SE POST

IN A C NSPICUOUS

vaseSit)

This LICENSE is granted as subject

to the provision
s
of
the
Gen
eral
Sections Tammy-Two to Thirty-Tw
LAW
S,
Chap
ter One Hundred and Forty.
o inclosive and of Chapter Two Hundred
and
tern
Seve
ary
nty-Two, Sections Twenty-Five
-Sen
n
inclu
sive
,
and

a
tiotrothert tashereindescribed.
LICE
NSE
granted try
Dale, 12/ 1/ 15
.
EXPIRES DEC. 31, 2016
euTNOglTIES
THI

roma 332

EXHIBIT F

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

PHILIP .1. CALLAN. JR
GARY P. SHANNON
ROBERT L. LEONARD
A. CRAIG DROWN
L. arrticv MEEHAN
JOHN J. SMARTHy
BARRY M. RYAN
DEBORAH A. BASILEt
PAUL M. MALECK
W. GARTH JANES,*
GREGORY A. SCHMIDT
MICHAEL D. SWEET*
GREGORY M. SCHMIDT
MICHAEL S. SCHEMER*
THOMAS IA GROWHOSKI
BRENDA S. DOHERTY
KAREN K. CHADWELL1
JESSE BELCHER-TIMME
A. AGulAR
REBECCA M. THiBAuLT
ANGELINA P. STAFFORD*
ERIN J. MEEHAN

ATTORNEYS AT LAW
ONE MONARCH PLACE, SUITE 190S
SPRINGFIELD, MASSACHUSETTS 01144-1D00
TELEPHONE (413) 7334111
FAX (419) 734.3910

JOSE

BO STATE STREET
NORTHAMPTON. MA 01060
TELEPHONE (415) 544-1600
FAX (413) 5844670

www.dwpm.com
E-MAIL: browaftdwpm.com

COUNSEL
WILLIAM If BENNETT
ROSEMARY CROWLEY
DAVID J. MANTELS (RETIRED)
DUDLEY O. WALLACE
(19004937)
LOUIS W. DOHERTY
(18951-10110)
FREDERICK S. PILLSBURY
(1010.1996)
ROBERT E. MURPHY
(19111.2003)
SAMUEL A. MARSELLA
(1931.2004)
PAUL S. DOHERTY
(1094-2015)
misTERED PATENTATIORNEY
ALSOA0147601614014M071AR
AIZO MAXIMINPEW YORC
ALSO MIMICiNURN= OF COLUFAIM
"4 AMADMITTED INSOUTHGAMMA

December 29, 2016

VIA OVERNIGHT MAIL

Nicholas Morin, Manager
Iron Duke Brewing LLC
100 State Street - Suite 122
P.O. Box 402 - Building 122
Ludlow, MA 01056
Michael lvlarcoux, Manager
Iron Duke Brewing LLC
100 State Street - Suite 122
P.O. Box 402 - Building 122
Ludlow, MA 01056
Re:

Notice of Default

Dear Mr. Morin and Mr. Marcoux:

We represent Westmass Area Development Corporation ("Westmass"). Westmass and
Iron Duke Brewing LLC (the "Tenant") are parties to a Lease Agreement dated December 13,
2013 (the "Lease"). This letter constitutes a Notice of Default by the Tenant under the Lease
that is being delivered to you pursuant to Paragraph 17(a) of the Lease. All terms not otherwise
defined in this Notice of Default shall have the same meanings as set forth in the Lease.
The Permitted Use of the Premises pursuant to the Lease is the operation of a
microbrewery business, which includes the production and sale of beer made at the Premises for
consumption within the Premises and for the sale of beer for consumption off Premises.
The
Permitted Use was modified partially pursuant to Paragraph 3(b) of the Lease, which provides
that the Permitted Use "includes the sale of beer and merchandise at the microbrewery that will
be operated by Tenant within the Premises (the "Brewery"), including the sale of beer for
632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

December 29, 2016

Page 2
consumption within the Brewery and the sale of beer for consumption
off Premises through any
and all legal means, but in no event on any other part of the Ludlow
Mills property". In
connection with this expanded description of the Permitted Use,
the Tenant agreed to comply at
all times with the following:
(1)
Tenant shall comply with all of applicable laws, statutes, ordinances and
regulations relating to the sale of beer for consumption within the premis
es where such beer is
sold and for consumption at home, including without limitation
all applicable requirements of the
License Commission for the Town of Ludlow, Massachusetts and the Alcoho
lic Beverages
Control Commission for the Commonwealth of Massachusetts
;
(ii)
Tenant shall periodically monitor and patrol the Common Areas surrounding
the
Premises for the purpose of ensuring that individuals who purchase beer
from the Brewery for
consumption at home do not consume such beer on any of the Common
Areas;
(iii) Tenant shall ensure at $1 times that the operation of the Brewery
within the
Premises does not interfere in any manner whatsoever with the use and
occupancy of other
portions of the overall premises of which the Premises; and
(iv) Tenant shall comply with such additional reasonable rules and regulat
ions relating
to the operation of the Brewery within the Premises as Landlord may establis
h from time to time
in order to ensure that the operation of the Brewery within the Premises does
not disrupt or
interfere with the overall operation by Landlord of the premises of which the
Premises are a part
and/or the use and enjoyment by Landlord's other tenants of the space that
such other tenants
lease from Landlord and/or the Common Areas.
As set forth in the October 27, 2016 letter to you from Westmass, the Tenant
has engaged
in numerous activities in connection with its occupancy of the Premises
that are not encompassed
within or part of the Permitted Use, including without limitation the followi
ng:
Operation of food trucks and food vendors in the Common Areas;
Food service within the Premises;
Live musical entertainment within the Premises;
Numerous other activities that create the need for the parking of vehicle
s
substantially in excess of the twenty (20) parking spaces that are appurtenant
to
the Premises, ten (10) of which are exclusive and ten (10) of which are
in
common with all others entitled thereto, resulting in the parking of patrons
of the
Tenant in Common Areas, thereby interfering in a material way with
the use and
occupancy of other portions of the overall premises of which the Premises are
a
part; and
612713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

December 29, 2016

Page 3

The storage of containers outside of the Premises on Common Areas that are not
identified in the Lease as a storage area that is appurtenant to the Premises.
In addition, it is my understanding that the Tenant has wrongfblly taken possession of
Stock House 222, which is located immediately adjacent to the Premises, and the Tenant is
wrongfitlly using Stock House 222 for storage purposes. All of the foregoing activities and
actions of the Tenant constitute violations of the terms and conditions of the Lease (collectively,
the "Occupancy Violations").
In addition, Westmass has reviewed the two (2) Licenses issued by the Town of Ludlow
to the Tenant, consisting of the "License for innHolders, Common Victuallers and Other
Keepers
of Restaurants and Other Establishments" Number 226-16 (the "Entertainment License") and the
"License to Expose ,Keep for Sale, and to Sell (Pouring Permit) Malt Beverages Manufactured
on Site to be Drunk on the Premises", License 063200054 (the "Pouring License"). Copies of
these Licenses are enclosed. Although the Lease does not permit any entertainment within the
Premises whatsoever, the Entertainment License was obtained by the Tenant for the purpose of
conducting amusements within the Premises, consisting of "live entertainment, recorded or live
music, radio, television". The offering of live entertainment in the Premises constitutes a
violation of the Lease (the "Permitted Use Violation").
The Pouring License describes the Licensed Premises as follows:
"Iron Duke Brewing will be a tasting room and manufacturing brewery. Tasting room
access will be through an exterior door in the east wall of the building. Entering through the
door and looking west you see the manufacturing entrance double doors and an right (8) foot
wall that separates the brewery from the tasting room and runs the length of the building north to
south. Looking to your right, north you will see bathroom situated in the northeast corner of the
tasting room. You will also see a door located on the north wall of the brewery which locks and
leads to an adjacent building which is Dart of the brewery (emphasis supplied). Looking to your
left, south, you will see a bar area where beer is poured and beyond that you will see a small
seating area forpatrons (emphasis supplied). Attached is a small deck/patio to the existing
building which will be directly connected to the existing taproom space. The deck/patio will be
enclosed with a railing and egress will only be allowed with an emergency exist off the deck
space".
Notwithstanding the fact the Premises specifically exclude Stock House 222, which is the
"adjacent" building which is identified in the Pouring License as part of the Brewery", the Tenant
wrongfully and illegally identified Stock House 222 as part of the Brewery, which is expressly
limited in accordance with terms of the Lease to Stock House 122. In addition, the Pouring
License specifically references "a small seating area for patrons", and Westmass has observed on
multiple occasions the use of long tables and multiple seats that transform the Premises from a

632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

December 29, 2016

Page 4
tasting room with a small seating area for patrons to what appears to be a taproom or bar,
in
violation of the terms and conditions of the Lease (collectively, the "License Violation
s").
Finally, Westmass recently invoiced the Tenant for actual water usage from March,
2015
through October 28, 2016. Ihave enclosed a copy of the invoice in the amount of
$1,124.54. In
response to receiving this invoice, the Tenant stated "based on our current Lease,
as executed on
12/13/2013, water is to be invoiced annually: rate is based on employee count divided by
actual
costs". Since the Tenant was not invoiced for any water usage for the period
beginning in
March, 2015 and continuing through the end of October, 2016, an invoice for water usage
was
certainly timely. The use of employee counts to attribute water usage was only applicab
le when
there was a shared water meter. As a result of the installation by Westmass of a water meter
that
measures water usage solely at the Premises, there is no question that the Tenant is
obligated to
pay the invoice dated November 16, 2016 in the amount of $1,124.54 (the "Payment Violation
"),
In addition, Westmass received a check from the Tenant in the amount of $476.62,
purportedly representing payment for the electric charge invoiced to the Tenant pursuan
t to
Invoice RC000002528 in the amount of $400.87 and the electric delivery charge invoiced
to the
Tenant pursuant to Invoice RC000002528 in the amount of $325.75, but the Tenant wrongfu
lly
deducted from this payment $250 on account of "heat tape credit", whatever that may be.
This
constitutes a further Payment Violation by the Tenant and is part of the overall Paymen
t
Violation that is the subject of this Notice of Default.
The Occupancy Violations, the License Violations, the Permitted Use Violation and the
Payment Violation all constitute violations by the Tenant of the terms and conditions of
the
Lease. In accordance with Paragraph 17(a) of the Lease, the Tenant shall have a period
of thirty
(30) days from receipt of this Notice of Default to cure the various defaults by the Tenant
that are
the subject of this Notice of Default. The curing of such defaults shall consist of the followin
g:
1.
The complete discontinuance of the Occupancy Violations, including without
limitation the removal by the Tenant of all of its property from Stock House 222.
2.
The surrender by the Tenant of the Entertainment License and the correction by
the Tenant of the description of the Licensed Premises on the Pouring License, thereby
curing
the Permitted Use Violation and the License Violations.
3.
The payment by the Tenant of the enclosed invoice for the Tenant's water usage
in the amount of $1,124.54 and the balance of the electric charge or the payment of $250.
Please understand that if the Tenant does not cure the Occupancy Violations, the License
Violations, the Permitted Use Violation and the Payment Violation within thirty
(30) days from
the date of this letter as required pursuant Paragraph 17(a) of the Lease, the Landlor
d will
proceed to exercise any and all of its remedies under the Lease, which include the tight to
terminate the Lease. Please understand as well that in accordance with Paragraph 17(e)
of the
632713.1

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

December 29, 2016

Page 5
Lease, as a result of the Defaults enumerated in this letter, the Tenant is obligate
d to reimburse
Westmass for all reasonable costs and expenses incurred by Westmass
by reason of such
Defaults (including legal fees), whether or not Westmass institutes any legal
action or proceeding
against Tenant by reason of such Default.
This letter does not purport to enumerate all of the current Defaults by Tenant in
connection with the performance of its obligations under the Lease and occupa
ncy of the
Premises, and Westmass expressly reserves the right to notify the Tenant of any
and all
additional Defaults by the Tenant under the Lease. This letter is being sent to the
Tenant without
prejudice to the exercise by Westmass of all of its rights and remedies arising out of
the Tenant's
ongoing Default, and Westmass expressly reserves the right to exercise all such
rights and
remedies. Please refrain from having any contact whatsoever with Westmass, and
any
communications relating to this Notice of Default should be directly solely to the
undersigned.

A. Craig Brown
ACB/vak
Enclosures
cc:
Eric Nelson

632713.1

Westmase Area Development Corp

255 Padgett(' Stniet
Chicopee, MA 0=

Bold
To:

Number:
Page:
Date:

011100000390
1
11/1612010

Iron Duke Brewing LW

PO 8ex 402
Ludlow. MA01056

Customer No.
10-IRODUK
Description

Usage inCubic Feel

Actual water usage from March 2015

installation of water meter to 1020/16
meter reading per lease clause
(see attached)

Due Date
11(162016

Remit To:
Westrnasc Area Dew Corp.
265 Padgett, Street
Chicopee, MA 01022

Terms
Due UNA Receipt

52,304

RatalCF

Amount

.0215

1,12454

Amount Due
1,124.54

Total amount

1.124.54

Payment received

0.00

Amount due

1.124.54

EXHIBIT G

Law Office of Attorney Kevin J. Sullivan

1 Monarch Place Suite 1200-A
Springfield, MA 01144
Phone: (413) 454-1251
Fax: (413) 285-8025
E-Mail: kevinjsullivan@verizon.net

Mail
P.O. Box 2239
Westfield, MA 01086

January 9, 2017
Attorney A. Craig Brown
Doherty, Wallace, Pillsbury and Murphy, P.C.
One Monarch Place, Suite 1900
Springfield, MA 01144

RE:

Iron Duke Brewing, LLC/ Westmass Development

Dear Attorney Brown:

As you are aware, this office represents Iron Duke Brewing, LLC, in regards to a
Lease dispute which has arisen with Westmass Area Development Corporation. Please
accept this letter as a follow up to our meeting of January 4, 2017, and as a response to
your Notice of Default dated December 29, 2016.
In response to the three issues you presented in the letter of 12/29/16, each have
been addressed by the Tenants, with evidence provided to you at our meeting. More
specifically:
(1)
Iron Duke has ceased using Stock House 222 in any capacity. All pallets
which were stored in this area have been relocated to an off-site facility. Furthermore,
the storage unit which was located on the premises was also relocated.
(2)
The Common Victualer License issued by the Town of Ludlow (Pouring
Permit), has been amended to remove any mention of Stock House 222 or the proposed
deck when describing the premises. (A copy of the 2017 license was provided to you at
our meeting). It should be noted that the only reason the additional spaces where
included on the 2016 Pouring Permit was due to previous agreements which Iron Duke
believed were in place with Westmass, as well joint meeting Westmass attended with the
Town of Ludlow.
(3)

As discussed, the Tenant has acknowledged that some amount is due for

water usage over the past year. The amount of $1,124.54 would appear reasona
ble, but
Iron Duke has requested a copy of the water invoices showing consumption on
the new
dedicated meter. Also, a discussion at our meeting revealed that a credit for the electric
charge during the winter months has been agreed to by the parties for the past
3 years due
to the fact that Westmass runs a heating system servicing the entire building off
of the Iron
Duke meter. The amount of that credit remains in question, but both parties
agreed to
find a mutual solution.
Based on the above summary, Iron Duke believes that all default issues formall
y
presented in the letter of 12/29/16 have been addressed and cured. It is our
hope that
we can now move forward with a clean slate and address other issues with the
Lease
Agreement.
At the meeting of 1/4/17, you requested thatI secure answers to a few questions
in
order to fashion amendments to the Lease Agreement which will benefit both parties
. In
that regard, please see the following responses:
(1)
Ideally, Iron Duke would like between 50/60 parking spaces to service their
facility during operational hours.
The majority of these spaces would be located
between Stock House 122, Stock House 222 and the neighboring building. Some spots
could remain in the common parking area which is presently reserved for 10 Iron
Duke
parking spaces. Contributions for the Grading and Lighting of the additional parking
area
are issues which can be explored if a comprehensive agreement is reached between
the
parties.
(2)
As to future use of Stock House 222, Iron Duke would only be interested in
this area if it could be used for expanded manufacturing in this area. With the directiv
e to
store materials off site, this area is no longer needed for storage. However, if the
area
could be used for production of beer, and brewing machinery placed in this area, Iron
Duke
would be willing to discuss rental terms. Please note, Iron Duke is not sugges
ting that
this area be used to increase their seating capacity above the limit presently allowed
by
their Town issued license.
(3)
Iron Duke has agreed to pay individual water bills generated by the Town of
Ludlow, once those bills are presented to them by Westmass.
(4)
Iron Duke intends to continue with entertainment in the manner allowed by
their License issued by the Town of Ludlow. Although Iron Duke anticipates no
expansion of their operating hours, they will commit to operating only in the hours
allowed
by the Town of Ludlow and Massachusetts Law.
(5)
In regards to the sale of food, Iron Duke has discontinued the presence of all
food trucks to service the premises. However, if an agreement could be reached, Iron
Duke would like once again allow these types of food sales to help better serve their
customers.

Ilook forward to your response to both this letter, and the issues we discussed
at
the 1/4/17 meeting. If you have any questions or need clarification on any
of the above
addressed topics, please do not hesitate to contact this office. Thank you for your
anticipated cooperation on this matter.

Yours truly,

Kevin J. Sullivan

EXHIBIT H

DOHERTY, WALLACE, PILLSBURY AND MURPHY, P.C.

PHILIP J CALLAN! JR
GARY P. SHANNON
ROBERT I. LEONARD
A CRAIG BROWN
I. JEFFREY MEEHAN
JOHN J. 1.10CARTHY
BARRY M. RYAN
DEBORAH A. BASILE'
PAUL M. MALECK
W. GARTH JANES"
GREGORY A. SCHMIDT
MICHAEL 0. SWEET'
GREGORY M SCHMIDT
MICHAEL 9. SCHNEIDER'
JESSE BELCHER-TIMME
JOSE A AGUIARTHOMAS M. GROWNOSKI
BRENDA S DOHERTY
KAREN K cmikoweLvi
REBECCA M THIBAULT
ANGELINA P STAFFORD'
ERIN J MEEHAN
ANJALI V SHANKAR,

ATTORNEYS AT LAW
ONE MONARCH PLACE, SUITE 1900
SPRINGFIELD, MASSACHUSETTS 01144-1000
TELEPHONE 4413) /33-3111
FAX (413) 734-3910

Via E-mail

60 STATE STREET
NORTHAMPTON. MA 01080
TELEPHONE (413) 5114-1500
FAX (413) 3114-1670

www owpm.eam
E-MAIL. brownedwpm 9903

January 12, 2017

COUNSEL
WILLIAM II SENNETT
ROSEMARY CROWLEY"
DAVID J.MARTELt (RET6'.E0)
DUDLEY S WALLACE
(19004967)
LOUIS W. DOHERTY
(1E90-19119)
FREDERICK S. PILLSBURY
(11119.1996)
ROBERT E. MURPHY
(1919.2003)
SAMUEL A. MARSELLA
41931.2004)
PAUL S DOHERTY
(104-2010)
REOMEREOPATIENTAMINEY
ALSOMira COMECTICUT
t ALU AtattliDIIINWYORK
ALMAbinnemmumict attoLuutia
"' Ai= AMMOMOWNCMGS
maganDNaNtit.$01A

Kevin J. Sullivan, Esq.

Law Office of Attorney Kevin J. Sullivan
One Monarch Place, Suite 1200-A
Springfield, MA 01144
RE:

Notice of Continuing Default

Dear Kevin:
This letter does not constitute a response to your January 9, 2017 letter,
except to confirm that all
of the default issues identified in my December 29, 2016 letter to Iron Duke
Brewing, LLC have not been
cured. Iam writing to you today because my client has brought to my attention
Brewing is advertising on its Facebook page live entertainment this Saturday the fact that Iron Duke
night from 7:00 p.m. until
10:00 p.m. As set forth in my December 29, 2016 letter to Iron Duke Brewing
, the Lease between
Westmass Area Development Corporation and Iron Duke Brewing does
not permit live entertainment.
Accordingly, you are hereby notified by Westmass Area Development Corpora
tion that any live or other
entertainment carried out by Iron Duke Brewing within the premises
leased by Westmass Area
Development Corporation to Iron Duke Brewing constitutes a further default
under the Lease dated
December 13, 2013. Iron Duke Brewing is expressly instructed by Westmas
s Area Development
Corporation to cancel any live entertainment that is scheduled.
1 will provide you with a more complete response to your January 9, 2017 letter
next week, and
this letter is being sent to you without prejudice to the exercise by
Westmass Area Development
Corporation of all of its rights and remedies arising out of the continuing
default by Iron Duke Brewing
under the Lease with Westmass and Westmass expressly reserves the right
to exercise all such rights and
remedies.

ACB/meh
cc:
Eric Nelson

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