UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

 

Date of Report (Date of Earliest Event Reported): December 14, 2018

 

ATRM Holdings, Inc.
(Exact name of registrant as specified in its charter)
     
Minnesota 001-36318 41-1439182
(State or Other Jurisdiction
of Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
     
5215 Gershwin Avenue N., Oakdale, Minnesota 55128
(Address of Principal Executive Offices) (Zip Code)

 

Registrant’s Telephone Number, Including Area Code: (651) 704-1800

 

 
(Former Name or Former Address, If Changed Since Last Report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):

 

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐ 

 

 

Item 1.01 Entry into a Material Definitive Agreement.

Digirad Joint Venture and Services Agreement

On December 14, 2018, ATRM Holdings, Inc. (“ATRM” or the “Company”) entered into a Joint Venture Agreement with Digirad Corporation (“Digirad”), forming Star Procurement, LLC (“Star Procurement”), with each of ATRM and Digirad holding a 50% interest (the “Joint Venture Agreement”). The purpose of the joint venture is for Star Procurement to purchase from third parties and sell building materials and related goods to KBS Builders, Inc. (“KBS”), the Company’s wholly owned subsidiary. Star Procurement entered into a Services Agreement on January 2, 2019 (the “Services Agreement”) with KBS in connection with the joint venture. Digirad’s capital contribution to the joint venture was $1.0 million. ATRM did not make a capital contribution.

 

Jeffrey E. Eberwein, Chairman of the Company’s Board of Directors (the “Board”), is also the Chairman of the Board of Directors of Digirad. Mr. Eberwein beneficially owns approximately 2.7% of Digirad’s outstanding shares of common stock and directly owns approximately 17.4% of ATRM’s outstanding common stock. Additionally, Mr. Eberwein is the manager of Lone Star Value Investors GP, LLC, the general partner of Lone Star Value Investors, LP (“LSVI”) and Lone Star Value Co-Invest I, LP (“LSV Co-Invest I”), which respectively own 222,577 shares and 374,562 shares of ATRM’s 10.00% Series B Cumulative Preferred Stock (the “Series B Stock”). Also, as of the date of the Joint Venture Agreement, Mr. Eberwein was the sole member of Lone Star Value Management, LLC (“LSVM”), the investment manager of LSVI.

 

The foregoing descriptions of the Joint Venture Agreement and the Services Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed herewith as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference.

 

Purchase of LSVM

 

On April 1, 2019, the Company entered into a Membership Interest Purchase Agreement (the “LSVM Purchase Agreement”) with LSVM and Mr. Eberwein. Pursuant to the terms of the LSVM Purchase Agreement, Mr. Eberwein sold all of the issued and outstanding membership interests of LSVM to the Company (the “LSVM Acquisition”) for a purchase price of $100.00 subject to a working capital adjustment provision. Pursuant to the LSVM Purchase Agreement, the primary liabilities and assets of Lone Star Value Management existing prior to January 1, 2019 remain with Mr. Eberwein, including the $300,000 LSVM December 2018 Note (as defined and described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on December 18, 2019). The LSVM Acquisition closed simultaneously with the execution and delivery of the LSVM Purchase Agreement, and was deemed effective as of January 1, 2019 for accounting purposes, as a result of which LSVM became a wholly-owned subsidiary of ATRM. The LSVM Purchase Agreement contains representations, warranties, covenants and indemnification provisions customary for transactions of this type. The Company’s entry into the LSVM Purchase Agreement and the LSVM Acquisition were unanimously approved by a special committee of the Board comprised solely of independent directors.

 

The foregoing description of the LSVM Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the LSVM Purchase Agreement, which is filed herewith as Exhibit 10.3 and is incorporated herein by reference.

 

Amendments to KBS and EGBL Loan Agreements

 

On February 22, 2019, the Company entered into a Ninth Agreement of Amendment to Loan and Security Agreement (the “Ninth KBS Loan Amendment”) to amend the terms of the Loan and Security Agreement, dated as of February 23, 2016 (as amended, the “KBS Loan Agreement”), by and among the Company, KBS and Gerber Finance Inc. (“Gerber Finance”), providing KBS with a credit facility based on a formula tied to certain eligible assets of KBS. The Ninth KBS Loan Amendment amended the KBS Loan Agreement to extend the availability of up to $600,000 of overadvances through no later than February 23, 2020 in order to provide KBS with additional working capital.

 

 

 

On April 1, 2019, the Company entered into a Tenth Agreement of Amendment to Loan and Security Agreement (the “Tenth KBS Loan Amendment”) to amend the terms of the KBS Loan Agreement, and a Fifth Agreement of Amendment to Loan and Security Agreement (the “Fifth EGBL Loan Amendment”) to amend the terms of the Loan and Security Agreement, dated as of October 4, 2016 (as amended, the “EGBL Acquisition Loan Agreement”), by and among the Company, KBS, Edgebuilder, Inc., Glenbrook Building Supply, Inc., and Gerber Finance, providing financing for the Company’s acquisition of its EBGL business. The Tenth KBS Loan Amendment and the Fifth EGBL Loan Amendment amended the terms of the KBS Loan Agreement and the EGBL Acquisition Loan Agreement, respectively, to permit the Company’s acquisition of LSVM and to clarify the parties’ rights and duties in connection therewith, among other things.

 

In connection with each of the Ninth KBS Loan Amendment and the Tenth KBS Loan Amendment, Mr. Eberwein executed a reaffirmation of guaranty in favor of Gerber Finance relating to his unconditional guaranty of $600,000 of KBS’s obligations under the KBS Loan Agreement arising from the $600,000 of overadvances permitted under the Ninth KBS Loan Amendment. 

 

On April 26, 2019, the Company entered into an Eleventh Agreement of Amendment to Loan and Security Agreement (the “Eleventh KBS Loan Amendment”) to amend the terms of the KBS Loan Agreement to (i) provide for increased borrowing capability; (ii) to eliminate the Leverage Ratio financial covenant required by Schedule III (Financial Covenants); and (iii) to amend the Net Loss covenant required by Schedule III (Financial Covenants). In addition, the Eleventh KBS Loan Amendment provided a waiver for certain covenants for the 2017 and 2018 fiscal years.

In connection with the Eleventh KBS Loan Amendment, Mr. Eberwein executed a reaffirmation of agreements in favor of Gerber Finance relating to his unconditional guaranty as described above and any other documents related to KBS.  

Sale of Maine Facilities

 

Waterford

 

On April 3, 2019, 947 Waterford Road, LLC (“947 Waterford”) entered into a Purchase and Sale Agreement (the “Waterford Purchase Agreement”) with KBS, pursuant to which 947 Waterford purchased certain real property and related improvements (including buildings) located in Waterford, Maine (the “Waterford Facility”) from KBS (the “Waterford Transaction”), and acquired the Waterford Facility. The Waterford Purchase Agreement contains representations, warranties and covenants of KBS and 947 Waterford that are customary for a transaction of this nature. The purchase price of the Waterford Facility is $990,000, subject to adjustment for taxes and other charges and assessments.

947 Waterford is a wholly-owned indirect subsidiary of Digirad, formed for the purpose of acquiring and holding the Waterford Facility.

Paris

On April 3, 2019, 300 Park Street, LLC (“300 Park”) entered into a Purchase and Sale Agreement (the “Park Purchase Agreement”) with KBS, pursuant to which 300 Park purchased certain real property and related improvements and personal property (including buildings, machinery and equipment) located in Paris, Maine (the “Park Facility”) from KBS (the “Park Transaction”), and acquired the Park Facility. The Park Purchase Agreement contains representations, warranties and covenants of KBS and 300 Park that are customary for a transaction of this nature. The purchase price of the Park Facility is $2.9 million, subject to adjustment for taxes and other charges and assessments.

300 Park is a wholly-owned indirect subsidiary of Digirad, formed for the purpose of acquiring and holding the Park Facility.

 

 

The foregoing descriptions of the Waterford Purchase Agreement and the Park Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed herewith as Exhibits 10.4 and 10.5, respectively, and are incorporated herein by reference.

Lease of Maine Facilities

On April 3, 2019, KBS entered into a separate lease agreement with each of 947 Waterford (the “Waterford Lease”) and 300 Park (the “Park Lease”). The Waterford Lease has an initial term of 120 months, which is subject to extension. The base rental payments associated with the initial term under the Waterford Lease are estimated to be between $1.2 million and $1.3 million in the aggregate. The Park Lease has an initial term of 120 months, which is subject to extension. The base rental payments associated with the initial term under the Park Lease are estimated to be between $3.3 million and $3.6 million in the aggregate. ATRM has unconditionally guaranteed the performance of all obligations under the Waterford Lease and Park Lease to be performed by KSB, including, without limitation, the payment of all required rent.

On April 3, 2019, KBS signed a lease (the “Oxford Lease”) with 56 Mechanic Falls Road, LLC (“56 Mechanic”), which will be effective upon the closing of the sale (the “Oxford Transaction”) of the certain real property and related improvements and personal property owned by RJF – Keiser Real Estate, LLC (“RJF”) (including buildings, fixtures, and other improvements on the land, and all machinery and equipment and other personal property, if any, owned by RJF and located on the property) located in Oxford, Maine. The Oxford Lease was amended as of April 18, 2019 (the “Oxford Lease Amendment”) to provide that the commencement date will be the later of the closing of the Oxford Transaction and the date that possession of the leased premises is able to be delivered to KBS. The Oxford Transaction is pursuant to that certain Purchase and Sale Agreement between 56 Mechanic and RJF. The Oxford Lease has an initial term of 120 months, which is subject to extension. The base rental payments associated with the initial term under the Oxford Lease are estimated to be between $1.4 million and $1.6 million in the aggregate. ATRM has unconditionally guaranteed the performance of all obligations under the Oxford Lease to be performed by KBS, including, without limitation, the payment of all required rent.

The foregoing descriptions of the Waterford Lease, the Park Lease, the Oxford Lease and the Oxford Lease Amendment do not purport to be complete and are qualified in their entirety by reference to the full text of such documents, which are filed herewith as Exhibits 10.6, 10.7, 10.8 and 10.9, respectively, and are incorporated herein by reference.

Item 4.01 Changes in Registrant’s Certifying Accountant.

(a) Dismissal of Previous Independent Registered Public Accountant.

On April 1, 2019, the Company dismissed Boulay PLLP (“Boulay”) as the Company’s independent registered public accounting firm. The decision to dismiss Boulay was approved by the Audit Committee of the Board (the “Audit Committee”) on March 29, 2019. Boulay will continue to serve as the Company’s auditor for the duration of its review of the Company’s interim financial statements to be included in the Company’s Quarterly Reports on Form 10-Q for the quarters ended June 30, 2017 and September 30, 2017 and its audit of the consolidated financial statements of the Company as of and for the year ended December 31, 2017, which continuation was also approved by the Audit Committee. During the fiscal years ended December 31, 2015 and 2016 and during the period subsequent to December 31, 2016 to the date hereof, there were no “disagreements” (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K) with Boulay on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of Boulay, would have caused Boulay to make reference to the subject matter of such disagreements in connection with its reports on the financial statements for such years.

Boulay’s reports on the Company’s financial statements for the fiscal years ended December 31, 2015 and 2016 did not contain an adverse opinion or a disclaimer of opinion, nor were they qualified or modified as to uncertainty, audit scope, or accounting principles.

 

 

During the Company’s fiscal years ended December 31, 2015 and 2016 and during the period subsequent to December 31, 2016 to the date hereof, there have been no “reportable events” (as defined in Item 304(a)(1)(v) of Regulation S-K), except that management identified a material weakness in the Company’s internal control over financial reporting related to inadequate accounting processes and internal control procedures pertaining to the operations of KBS for the fiscal years ended December 31, 2015 and 2016. Management also identified a material weakness in the Company’s internal control over financial reporting related to inadequate accounting processes and internal control procedures pertaining to the operations of the Company’s EBGL business for the fiscal year ended December 31, 2016 and three months ending March 31, 2017. However, there was no disagreement between the Company and Boulay with respect to these determinations. The Audit Committee has authorized Boulay to respond fully to any inquiries of the Company’s successor independent registered public accounting firm concerning these material weaknesses, and Boulay has agreed to provide such information to the successor independent registered public accounting firm.

The Company has provided Boulay with a copy of the disclosures required by Item 304(a) of Regulation S-K contained in this Current Report on Form 8-K and has requested that Boulay furnish the Company with a letter addressed to the Securities and Exchange Commission stating whether Boulay agrees with the statements made by the Company in this Current Report on Form 8-K and, if not, stating the respects in which it does not agree. A copy of Boulay’s letter, dated April 25, 2019, is filed as Exhibit 16.1 to this Current Report on Form 8-K.

 

(b) Engagement of New Independent Registered Public Accountant .

 

On March 29, 2019, the Audit Committee selected BDO USA, LLP (“BDO”) as the Company’s independent registered public accounting firm, subject to completion of BDO’s standard acceptance procedures. On April 15, 2019, BDO was engaged to perform independent audit services for the fiscal year ending December 31, 2018. During the fiscal years ended December 31, 2016 and 2015 and during the period subsequent to December 31, 2016 to the date hereof, neither the Company nor anyone acting on its behalf consulted with BDO regarding either (i) the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered with respect to the consolidated financial statements of the Company; or (ii) any matter that was the subject of a disagreement as described in Item 304(a)(1)(iv) of Regulation S-K or a “reportable event” as described in Item 304(a)(1)(v) of Regulation S-K.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

On February 16, 2019, Galen Vetter notified the Company of his resignation from the Company’s Board, effective February 18, 2019. Mr. Vetter determined to resign from the Company’s Board due to his commitments to other companies. The resignation did not result from any disagreement with the Company or any person affiliated with the Company.

On April 3, 2019, James Elbaor notified the Company of his resignation from the Company’s Board, effective April 3, 2019. Mr. Elbaor determined to resign from the Company’s Board to pursue other endeavors. The resignation did not result from any disagreement with the Company or any person affiliated with the Company.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)        Exhibits

 

Exhibit No.   Description
     
10.1   Joint Venture Agreement by and between the Company and Digirad Corporation, dated as of December 14, 2018.
     
10.2   Services Agreement, by and between KBS Builders, Inc. and Star Procurement, LLC, dated as of January 2, 2019.
     
10.3   Membership Interest Purchase Agreement, by and among the Company, Lone Star Value Management, LLC and Jeffrey E. Eberwein, dated as of April 1, 2019.

 

 

 

     
10.4*   Purchase and Sale Agreement, dated April 3, 2019, by and between KBS Builders, Inc. and 947 Waterford Road, LLC.
     
10.5*   Purchase and Sale Agreement, dated April 3, 2019, by and between KBS Builders, Inc. and 300 Park Street, LLC.
     
10.6*   Lease Agreement, dated April 3, 2019, by and between KBS Builders, Inc. and 947 Waterford Road, LLC.
     
10.7*   Lease Agreement, dated April 3, 2019, by and between KBS Builders, Inc. and 300 Park Street, LLC.
     
10.8*   Lease Agreement, dated April 3, 2019, by and between KBS Builders, Inc. and 56 Mechanic Falls Road, LLC.
     
10.9   First Amendment to the Lease Agreement, dated as of April 18, 2019, by and between KBS Builders, Inc. and 56 Mechanic Falls Road, LLC.
     
16.1   Letter to the Securities and Exchange Commission from Boulay PLLP dated as of April 25, 2019.

 

* The schedules and exhibits to this Exhibit have been omitted. The Company agrees to furnish a copy of the omitted schedules and exhibits to the Securities and Exchange Commission on a supplemental basis upon its request.

 

 

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

  ATRM HOLDINGS, INC.
   
   
Dated: April 26, 2019 By: /s/ Stephen A. Clark
    Name: Stephen A. Clark
    Title: Chief Financial Officer

 

 

 



Exhibit 10.1
LIMITED LIABILITY
COMPANY AGREEMENT
FOR
STAR PROCUREMENT, LLC


THE MEMBERSHIP INTERESTS ISSUED PURSUANT TO THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ 1933 ACT ”), OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER THE 1933 ACT AND OTHER APPLICABLE LAW OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN. CERTAIN OF THE MEMBERSHIP INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFERABILITY SET FORTH IN THIS AGREEMENT.







Table of Contents

Page


ARTICLE I
DEFINITIONS
1

 
Section 1.1
 
Certain Definitions
1

 
 
 
 
 
ARTICLE II
 
ORGANIZATIONAL MATTERS
10

 
Section 2.1
 
Legal Status
10

 
Section 2.2
 
Name
10

 
Section 2.3
 
Purpose
10

 
Section 2.4
 
Term
11

 
 
 
 
 
ARTICLE III
MEMBERS AND MEMBERSHIP INTERESTS
11

 
Section 3.1
 
Holders
11

 
Section 3.2
 
Confidentiality
11

 
Section 3.3
 
Certification
12

 
 
 
 
 
ARTICLE IV
CONTRIBUTIONS AND CAPITAL ACCOUNTS
12

 
Section 4.1
 
Capital Contributions
12

 
Section 4.2
 
Loans
12

 
Section 4.3
 
Return of Capital Contributions; Interest
12

 
Section 4.4
 
Capital Accounts
12

 
Section 4.5
 
Limitation on Liability
13

 
 
 
 
 
ARTICLE V
 
DISTRIBUTIONS
13

 
Section 5.1
 
General
13

 
Section 5.2
 
In-Kind Distributions
13

 
Section 5.3
 
Tax Distributions
13

 
 
 
 
 
ARTICLE VI
 
ALLOCATIONS
14

 
Section 6.1
 
Allocations of Profit or Loss
14

 
Section 6.2
 
Special Allocations
14

 
Section 6.3
 
Curative Allocations
16

 
Section 6.4
 
Section 704(c) and Capital Account Revaluation Allocations
16

 
Section 6.5
 
Additional Allocation Rules
17

 
Section 6.6
 
Tax Filings, Elections and Cooperation
17

 
Section 6.7
 
Partnership Representative
19

 
Section 6.8
 
Survival
20

 
 
 
 
 
ARTICLE VII
 
MANAGEMENT
21

 
Section 7.1
 
Management of the Company
21

 
Section 7.2
 
Resignation
22

 
Section 7.3
 
Vacancies
22

 
Section 7.4
 
Action by the Board
22

 
Section 7.5
 
Action by the Members
22


- i



Table of Contents
(continued)
Page


 
Section 7.6
 
Officers
23

 
Section 7.7
 
Limitation on Authority of Members
25

 
 
 
 
 
ARTICLE VIII
 
EXCULPATION AND INDEMNIFICATION
25

 
Section 8.1
 
Exculpation
25

 
Section 8.2
 
Indemnification
26

 
 
 
 
 
ARTICLE IX
 
BOOKS AND RECORDS
27

 
Section 9.1
 
Books and Records
27

 
Section 9.2
 
Bank Accounts
28

 
 
 
 
 
ARTICLE X
 
TRANSFERS
28

 
Section 10.1
 
Restrictions on Transfers
28

 
Section 10.2
 
Other Transfer Conditions, Restrictions and Requirements
28

 
Section 10.3
 
Termination of Status
28

 
 
 
 
 
ARTICLE XI
 
WITHDRAWAL AND DISSOLUTION
29

 
Section 11.1
 
Withdrawal
29

 
Section 11.2
 
Events of Dissolution
29

 
Section 11.3
 
Liquidating Distributions
29

 
Section 11.4
 
Conduct of Winding-Up
29

 
Section 11.5
 
Deficit Capital Accounts
29

 
 
 
 
 
ARTICLE XII
 
REPRESENTATIONS, WARRANTIES, AGREEMENTS AND OTHER MATTERS
30

 
Section 12.1
 
Holder Representations
30

 
 
 
 
 
ARTICLE XIII
 
MISCELLANEOUS
31

 
Section 13.1
 
Counsel Clause
31

 
Section 13.2
 
Amendment of Agreement
31

 
Section 13.3
 
Remedies
31

 
Section 13.4
 
Waiver
31

 
Section 13.5
 
Notices
32

 
Section 13.6
 
Entire Agreement
32

 
Section 13.7
 
Binding Effect; Benefits
32

 
Section 13.8
 
Severability
32

 
Section 13.9
 
Headings
32

 
Section 13.10
 
No Strict Construction
32

 
Section 13.11
 
Interpretation
32

 
Section 13.12
 
Counterparts
33

 
Section 13.13
 
Governing Law
33

 
Section 13.14
 
Jurisdiction and Venue
33


ii



This LIMITED LIABILITY COMPANY AGREEMENT (this “ Agreement ”) for STAR PROCUREMENT, LLC , a Delaware limited liability company (the “ Company ”), dated as of December 14, 2018, is by and among the Persons listed on Exhibit A .
RECITALS
WHEREAS,
A.    The Company was formed as a Delaware limited liability company on December 14, 2018, by the filing of the Certificate of Formation with the Secretary of State of the State of Delaware.
B.    The Members desire to enter into this Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1      Certain Definitions . For purposes of this Agreement, the following terms shall have the meanings set forth below:
1933 Act ” means the Securities Act of 1933, as amended.
Affiliate ” means, with respect to any Person, any other Person Controlling, Controlled by or under common Control with such Person and any equity owner (including, but not limited to, any partner, member, or a shareholder) of such Person.
Agreement ” has the meaning given to such term in the introductory paragraph.
ATRM Manager ” means the Manager appointed by ATRM Holdings, Inc. and identified on Exhibit B .
Available Cash ” means all cash funds (and any other property treated as cash in accordance with Section 5.2 ) of the Company on hand from time to time after payment or provision for (a) all operating and other expenses of the Company as of such time, (b) all outstanding and unpaid current obligations of the Company as of such time, and (c) as determined by the Board in its sole discretion from time to time, any working capital, expense, capital expenditure or other reserve.
Board ” has the meaning set forth in Section 7.1(b) .

1



Business ” means the purchasing and sale of building materials and related goods and entry into the Services Agreement attached hereto as Exhibit C .
Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York City are authorized by law to close.
Capital Account ” means the individual accounts established and maintained pursuant to Section 4.4 .
Capital Contribution ” means, with respect to any Holder, the aggregate amount of cash and the initial Gross Asset Value of any other property contributed (or required to be contributed) to the Company by or on behalf of that Holder (or any predecessor-in-interest of such Holder).
Chairman ” has the meaning given to such term in Section 7.6(b) .
Chief Executive Officer ” has the meaning given to such term in Section 7.6(c) .
Code ” means the Internal Revenue Code of 1986, as amended. All references in this Agreement to sections of the Code shall include any corresponding provision or provisions of any succeeding law.
Company ” has the meaning given to such term in the introductory paragraph.
Confidential Information ” means any and all information, statements, reports, trade secrets, documents, and other items prepared or produced by or on behalf of the Company, any Subsidiary, the Board, any Member or any of their respective Affiliates and any and all information, statements, reports, trade secrets, documents, and other items concerning the Company, any Subsidiary, any Member or any of their respective Affiliates that any Holder may receive (as a Holder and not as a Manager or Officer) or that may be disclosed, distributed or disseminated (whether in writing, orally, electronically or by other means) by or to such Holder or any representative of such Holder, or otherwise as a result of such Holder’s ownership of a Membership Interest other than (a) any information such Holder can establish was already in such Holder’s possession at the time of its disclosure or which becomes available to such Holder from a source other than the Company or a representative of the Company and was lawfully obtained and is not known by such Holder to be the subject to another confidentiality agreement with, or obligation of secrecy or confidentiality to, the Company, any Member or any of their respective Affiliates, or (b) such information that becomes generally available to the public other than directly or indirectly as a result of the disclosure by such Holder or a representative of such Holder in violation of Section 3.2 or other provision hereof.
Control ” means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether by agreement, contract or law or through any ownership of voting securities, power-of-attorney, proxy, or other arrangement or mechanism.
Counsel” means Olshan Frome Wolosky LLP.

2



Delaware Act ” has the meaning given such term in Section 2.1 .
Depreciation ” means, for each Fiscal Year, an amount equal to the federal income tax depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such Fiscal Year; provided, that if the Gross Asset Value of an asset differs from its adjusted basis for federal income tax purposes at the beginning of such Fiscal Year, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted Tax basis; and, provided, further, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the Board.
Digirad Manager ” means the Manager appointed by Digirad Corporation and identified on Exhibit B .
Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, in each case as amended from time to time, or any successor thereto.
Fiscal Year ” means, except as otherwise determined by the Board in accordance with this Agreement, the calendar year, or any portion thereof for which the Company is required to allocate Profits, Losses and other items of income, gain, loss or deduction pursuant to Article VI hereof.
Gross Asset Value ” means, with respect to any asset, the asset’s adjusted basis for federal income tax purposes, except as follows:
(a)      the initial Gross Asset Value of any asset contributed to the Company (other than cash contributed by a Holder to the Company) shall be the gross fair market value of such asset at the time of contribution, as agreed by the contributing Holder and the Board;
(b)      as determined in good faith by the Board, the Gross Asset Values of all of the Company’s assets shall be adjusted to equal their respective gross fair market values as of the following events: (i) immediately before the acquisition of any Membership Interest by any new or existing Holder in exchange for more than a de minimis Capital Contribution or as consideration for the performance of services to or for the benefit of the Company, (ii) immediately before the distribution by the Company to a Holder of more than a de minimis amount of property as consideration for any Membership Interest (or portion thereof), (iii) immediately before the liquidation of the Company within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g), (iv) in connection with the grant of an interest in the Company (other than a de minimis interest), as consideration for the provision of services to or for the benefit of the Company by an existing Member acting in a member capacity, or by a new member acting in a member capacity or in anticipation of being a member (v) immediately before the Company’s issuance of a noncompensatory option (as defined in Treasury Regulation Section 1.721-2(g)) to acquire a Membership Interest (other than a de minimis Membership Interest), (vi) immediately after the

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exercise of a noncompensatory option (as defined in Treasury Regulation Section 1.721-2(g)) issued by the Company to acquire a Membership Interest (other than a de minimis Membership Interest), and (vii) such other times as may be required under Treasury Regulation Section 1.704-1(b)(2)(iv)(f)(5)(v); provided that no adjustment described in this subparagraph (b) shall be made if the Board determines in good faith that such adjustment is neither necessary nor appropriate to reflect the relative economic interests of the Holders in the Company;
(c)      the Gross Asset Value of any asset distributed by the Company (other than cash distributed to any Holder) shall be the gross fair market value of such asset, as determined immediately prior to the distribution in good faith by the Board;
(d)      the Gross Asset Values of the Company’s assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) or Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that an adjustment pursuant to subparagraph (b) is required in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d); and
(e)      if the Gross Asset Value of an asset has been determined or adjusted pursuant to subparagraph (a), (b) or (d), such Gross Asset Value shall thereafter be adjusted by the Depreciation (and not the depreciation, amortization or other cost recovery deductions allowable with respect to that asset for federal income tax purposes) taken into account with respect to such asset for purposes of computing Profits and Losses.
Holder ” means any Member or any other Person owning a Membership Interest, regardless of whether and to what extent such Member or other Person has been, is or will be admitted to the Company as a member in accordance with the provisions of this Agreement and applicable law.
Indemnitee ” means any Person that is or was a Manager, Member, or Officer, or any Person that is serving or served at the Company’s request as a director, manager, officer, employee or agent of another Person.
IRS ” means the United States Internal Revenue Service.
Major Decision ” means any decision, contract, agreement, or other material activity on the part of the Company or any of its Affiliates relating to any of the following:
(a)      except as otherwise specifically described and provided in this definition, any contract or agreement or activity if the Board determines that, over the course of and in connection with such contract, agreement or activity, the Company and/or any of its Affiliates is or will be or can reasonably expected to be required to pay, reserve or otherwise expend more than $50,000;

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(b)      except for any debt incurred in the ordinary course of business to trade creditors or a draw-down on a revolving debt or other similar credit line facility, the incurrence of any new debt, the addition of any principal to an existing debt, or any increase in the available credit under a revolving loan or other similar credit line facility, where such principal, additional principal, or increase in available credit exceeds or will exceed $50,000;
(c)      the payment, refinancing, modification or settlement of any debt with an outstanding principal amount in excess of $50,000, other than the payment of debt incurred in the ordinary course of business to trade creditors or the repayment (other than as part of a refinancing) of a debt in accordance with its terms;
(d)      any Proceeding (or other action relating to a Proceeding) that (i) the Board reasonably determines is necessary to avoid a default judgment against the Company, any Manager, any Member or any of their respective Affiliates or to prevent or ameliorate any adverse or emergency condition, or that is covered by insurance; (ii) involves a claim (without any offset for any counterclaim or otherwise) for damages (or settlement thereof) of $25,000 or more; (iii) involves or includes a claim for any material equitable relief by any party; or (iv) involves or includes any claim or allegation of fraud, illegality or criminality on the part of the Company, any Manager, or any of their respective Affiliates;
(e)      on the part of the Company, the issuance, exchange, modification, recapitalization or other Transfer of any Membership Interest or other equity interest in the Company or any of its Affiliates or any right to acquire any of the foregoing (including, but not limited to, any warrants, options, convertible debt or other instruments);
(f)      any agreement related to a Sale of the Company on the part of the Company, any Affiliate of the Company, any Holder, any of their respective Affiliates or any combination of the foregoing;
(g)      the selection or removal (for any reason or no reason) of any Person as a Manager;
(h)      any increase or decrease in the number of Managers on the Board;
(i)      the selection, retention or dismissal of (i) any accounting firm engaged or to be engaged for the purpose of preparing any material financial statements and/or federal income tax return for or inclusive of the Company or any of its Affiliates or (ii) any law firm retained or to be retained with respect to any Proceeding subject to approval under clause (d) of this definition;
(f)      any material transaction involving any Affiliate of any Holder or any Manager;
(g)      with respect to the Company or any of its Affiliates, any change in the Fiscal Year for purposes of preparing any financial statement or the preparation of any material federal or state income Tax return;

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(h)      any voluntary election or other action by the Company or any of its Affiliates to liquidate or dissolve or wind-up (or make any assignment for the benefit of creditors) or to commence bankruptcy or insolvency proceedings under applicable law or causing or permitting the adoption of a plan of liquidation with respect to the Company or any of its Affiliates; and
(i)      subject to Section 13.2 , any amendment to this Agreement, the Company’s Certificate of Formation or any corresponding organizational document in the case of any of the Company’s Affiliates.
Member ” means a Person admitted to the Company as a member in accordance with the provisions of this Agreement and applicable law. If a Person admitted as a Member with respect to a Membership Interest acquires an additional Membership Interest, such Person shall not be treated as Member with respect to such additional Membership Interest, unless and until such Person is admitted as a Member in accordance with this Agreement with respect to and to the extent of such additional Membership Interest.
Membership Interest ” means, as provided in this Agreement, the entire equity interest in the Company of a Person (whether or not such Person is or has been admitted as a Member), including, but not limited to, the number of Units, any share of Profits and Losses, any right to participate in liquidating and non-liquidating distributions from the Company, any obligation to make capital contributions, and any and all other rights, obligations and duties associated with such equity interest.
Nonrecourse Deductions ” has the meaning set forth in Treasury Regulation Section 1.704-2(b)(1).
Note ” means a non-negotiable, unsecured promissory note, which note shall (a) bear interest at a fixed rate per annum equal to the applicable Federal rate (as such term is defined in Code Section 1274) in effect for the calendar month including the date of issuance (payable annually) and (b) have a five-year term with all principal due at maturity. Principal may be pre-paid at any time without penalty.
Notice 2005-43 ” means IRS Notice 2005-43, or any similar future guidance of the IRS, including any final pronouncement in respect thereof.
Officer ” means any Person validly and properly appointed and acting as a Chief Executive Officer, President, Vice-President, Treasurer, Assistant Treasurer, Secretary, Assistant Secretary, Partnership Representative or other officer described in Section 7.1(f) .
Partner Nonrecourse Debt ” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(4).
Partner Nonrecourse Debt Minimum Gain ” has the meaning set forth in Treasury Regulations Section 1.704-2(i)(2).

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Partner Nonrecourse Deductions ” has the meaning set forth in Treasury Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).
Partnership Minimum Gain ” has the meaning set forth in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).
Partnership Representative ” means the Person designated on Exhibit B as such or (b) if the Person so designated on Exhibit B cannot serve in the capacity of “partnership representative,” “tax matters partner” or other similar capacity, a Person (which Person may include any Manager) designated by the Board.
Person ” means any individual, partnership, corporation, limited liability company, joint venture, trust, association or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
Preferred Return ” means, as determined with respect to a Holder, an amount that, when combined with all prior distributions made under Section 5.1(b) to such Holder, yields a cumulative return of fifteen percent (15%) per annum, compounded quarterly, on the Unrecovered Capital (as outstanding from time to time) of such Holder, which return shall accrue daily and shall be computed on the basis of a 365 day or a 366 day year, as applicable.
President ” has the meaning given to such term in Section 7.6(d) .
Proceeding ” means (a) any threatened, pending or completed administrative or judicial action, audit, suit, hearing, review deposition or other proceeding, whether civil or criminal, (b) any appeal or other administrative or judicial review of any item described in clause (a), and (c) any investigation or other inquiry that will or could potentially result in or give rise to any item described in clause (a).
Profits ” and “ Losses” means, for each Fiscal Year, an amount equal to the Company’s taxable income or loss, respectively, for such Fiscal Year, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain loss, expense, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:
(a)      income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be taken into account in computing Profits;
(b)      any expenditures of the Company described in Code Section 705(a)(2)(B) (or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Profits or Losses pursuant to this definition shall be taken into account in computing Profits and Losses;
(c)      in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (b) or (d) of the definition of Gross Asset Value, the amount of such adjustment

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shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Profits and Losses;
(d)      any gain or loss resulting from any disposition of any Company asset with respect to which gain or loss is recognized for federal income tax purposes shall be determined by reference to the Gross Asset Value of such asset, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value;
(e)      in lieu of the depreciation, amortization and other capital cost recovery deductions taken into account in computing taxable income or loss, there shall be taken into account Depreciation for such Fiscal Year;
(f)      the computation of all items of income, gain, loss, expense, and deduction shall be made without regard to any election under Code Section 754 which may be made by the Company (except to the extent required by Treasury Regulations Section 1.704-1(b)(2)(iv)(m));
(g)      notwithstanding any other provision in any clause of this definition, any items of income, gain, loss, expense or deduction that are specially allocated pursuant to Section 6.2 or Section 6.3 shall not be taken into account in computing Profits and Losses; and
(h)      items of Company income, gain, loss, expense or deduction available to be specially allocated pursuant to Article VI shall be determined by applying rules analogous to those set forth in subparagraphs (a) through (f) above.
Regulatory Allocations ” has the meaning set forth in Section 6.3 .
Sale of the Company ” means (a) any merger, consolidation or other combination of the Company with another Person, if the Members, as determined immediately prior to the relevant transaction, would own less than fifty percent (50%) (as measured immediately after the consummation of the relevant transaction in terms of either voting power or fair market value) of the equity interests of the surviving Person; (b) any sale or exchange or any series of related or coordinated sales or exchanges of Membership Interests, if the Members, as determined immediately prior to such sale or exchange or series of sales or exchanges, would own less than fifty percent (50%) (as measured immediately after such sale or exchange or series of sales or exchanges in terms of either Voting Units or fair market value) of the Membership Interests; (c) any issue or any series of related or coordinated issues of Membership Interests, if the Members, as determined immediately prior to such issue or series of issues, would own less than fifty percent (50%) (as measured immediately after such issue or series of issues in terms of either Voting Units or fair market value) of the Membership Interests; or (d) any direct or indirect sale or exchange of all or substantially all of the assets of the Company (including, but not limited to, any assets held directly or indirectly through an Affiliate of the Company). No transaction shall be taken into account so as to cause a Sale of the Company to occur, if and to the extent such transaction occurs between or among the Company, any Affiliate of the Company or any combination of the foregoing or if and to the extent such transaction is a Transfer was made in accordance with Section 10.2 .
SEC ” means the Securities and Exchange Commission.

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Secretary ” has the meaning given to such term in Section 7.6(f) .
State Tax ” means any Tax other than U.S. federal income tax.
Subsidiary ” means any Person of which the Company owns fifty percent (50%) or more of the equity interests therein (either by vote or value).
Services Agreement ” means the Services Agreement, dated the date hereof, by and between the Company and KBS Builders, Inc.
Tax ” means any federal, state, county, local, franchise or foreign income, payroll, employment, excise, environmental, customs, franchise, windfall profits, withholding, social security (or similar), unemployment, real property, personal property (tangible or intangible), sales, use, transfer, registration, value added, gross receipts, net proceeds, turnover, license, ad valorem, capital stock, disability, stamp, leasing, lease, excess profits, occupational and interest equalization, fuel, severance, alternative or add-on minimum or estimated tax, charge, fee, levy, duty or other assessment, and other obligations of the same or of a similar nature to any of the foregoing due or claimed to be due by or to any governmental or quasi-governmental authority, including any interest, penalty or addition thereto, whether disputed or not.
Tax Proceeding ” means any Proceeding to which the Company is a party if and when such Proceeding involves to any significant extent any issue or other matter (including, but not limited to, any adjustment to or other determination of any nexus, permanent establishment or item of income, gain, expense or loss) relating to (a) any U.S. federal, state or local income Tax, (b) the Company’s obligation to withhold or collect any Tax if any Manager, Member, or Officer could be held personally liable for any failure to collect or withhold such Tax and/or (c) any other domestic or foreign Tax if there is possibility that, as result of the Proceeding, any Member could either (i) become subject to Tax in a jurisdiction where such Member was not otherwise subject to Tax during the time period at issue or (ii) through the issuance of a revised Schedule K-1 or other similar mechanism, any adjustment or other determination resulting from such Proceeding would flow through to and would be required to be taken into account on any separate domestic or foreign Tax return of any Member.
Total Equity Value means, as determined from time to time as specified in this Agreement, the aggregate proceeds that would be received by the Holders if: (a) all of the assets of the Company were sold at their Gross Asset Value pursuant to a liquidation of the Company and (b) the Company satisfied and paid in full all of its respective obligations and liabilities (including all Taxes, costs and expenses incurred in connection with such transaction and any amounts reserved by the Board with respect to any contingent or other liabilities) all as determined by the Board in its sole discretion.
Transfer ” means, whether direct or indirect, any transfer, sale, redemption, option grant, swap or other derivative transaction, assignment, issuance, gift, abandonment, termination, withdrawal, bequest, pledge, lien, mortgage or other encumbrance or disposition (irrespective of whether any of the foregoing is effected voluntarily, by operation of law or otherwise, or whether inter vivos or upon death), including, but not limited to, (a) any issuance, redemption or abandonment

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of a Membership Interest, (b) any exchange or conversion of any Membership Interest as a result of or in connection with any incorporation, merger, consolidation, combination or other similar transaction involving the Company or any Affiliate of the Company, and (c) any transaction similar to any of foregoing transactions with respect to any Holder that is an entity or any equity interest in any such Holder.
Treasurer ” has the meaning given to such term in Section 7.6(g) .
Treasury Regulations ” means the final or temporary regulations that have been promulgated under the Code by the U.S. Department of the Treasury, and any successor regulations.
Underpayment Amount ” means, as determined with respect to a Holder, (a) any “imputed underpayment” determined under Code Section 6225, (b) any similar or corresponding amount determined under any similar or corresponding provision of any State Tax, (c) any other similar or corresponding amount if and to the extent such amount represents the payment or collection of any Tax that would otherwise be paid or payable by such Holder as a result of the pass-through (or similar treatment) of any item of Profit or Loss to such Holder, and (d) any withholding, estimated or other Tax required by law to be withheld or paid by the Company with respect to or on behalf of such Holder.
Unit ” means any unit associated with any Membership Interest under this Agreement.
Unpermitted Deficit ” has the meaning set forth in Section 6.2(c) .
Unrecovered Capital ” means, as determined with respect to a Holder, the excess of (a) the total aggregate Capital Contributions made by the Holder with respect to the Units of such Holder over (b) the aggregate distributions made under Section 5.1(a) to such Holder.
Vice-President ” has the meaning given to such term in Section 7.6(b) .
Voting Unit ” means any Unit entitled to a vote under the terms of this Agreement.
ARTICLE II
ORGANIZATIONAL MATTERS
Section 2.1      Legal Status . The Company is a limited liability company formed and existing under the Delaware Limited Liability Company Act, as amended (the “ Delaware Act ”). The Company shall be governed by the Delaware Act. The Board and the Holders shall take such steps as are necessary to maintain the Company’s status as a limited liability company formed under the laws of the State of Delaware and qualification to conduct business in any jurisdiction where the Company does business and is required to be so qualified.
Section 2.2      Name . The name of the Company is STAR PROCUREMENT, LLC. The Board may change the name of the Company at any time and from time to time. The Company’s business may be conducted under its name and/or any other name or names deemed advisable by the Board.

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Section 2.3      Purpose . The purpose of the Company is to engage in any lawful act or activity that may be conducted by a limited liability company formed under the Delaware Act related to the Business, and to engage in any other activities and transactions necessary or incidental to the foregoing. The Company shall possess and may exercise all the powers and privileges granted by the Delaware Act or by any other law or by this Agreement, together with any powers incidental thereto, insofar as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the foregoing objectives and purposes of the Company.
Section 2.4      Term . The term of the Company commenced on the date specified in the Certificate of Formation filed for record in the Office of the Secretary of State of the State of Delaware and shall continue until the Company is dissolved pursuant to this Agreement.
ARTICLE III
MEMBERS AND MEMBERSHIP INTERESTS
Section 3.1      Holders . Exhibit A sets forth the name of each Holder, along with certain specified characteristics of the Membership Interest of such Holder. From time to time, the Board may amend Exhibit A (without the consent of any Person) to reflect any change in ownership, redemption, forfeiture, cancellation or issuance of or other event affecting any Membership Interest; provided, that, except as otherwise specifically provided in this Agreement, no such amendment shall increase the Capital Contribution of any Holder.
Section 3.2      Confidentiality . To the maximum extent permitted by law and as permitted pursuant to this Agreement, (a) each Holder (in such ownership capacity and not as a Manager or Officer) agrees to hold all Confidential Information in confidence and not to disclose any Confidential Information to any Person (other than the Company, any other Holder, any Manager or any Officer) and (b) the Company agrees to hold all Confidential Information concerning any Member or any Affiliate of a Member in confidence and not to disclose any such Confidential Information to any Person (other than the Company, any Manager or any Officer), in each case other than (i) to the financial, legal or other professional advisors or translators of a Holder, or where such Person is an entity, to those employees, partners (general or limited), Affiliates, members, managers, shareholders, officers or directors of such Person or any lender or prospective lender of the Company or any Subsidiary, as reasonably required by such lender, provided that such Persons have been previously informed of the confidential nature of the Confidential Information, and, in any event, the Person disclosing such Confidential Information shall be liable for any failure by any Person to whom or which such Confidential Information has been disclosed to abide by the provisions of this Section 3.2 , (ii) as required under applicable law or regulation (including, but not limited to, the preparation of any Tax return) or by court or governmental order, subpoena or legal process, (iii) as permitted by the Board or any affected Holder, if applicable or (iv) as permitted to any permitted assignee of any Membership Interest pursuant to Article X . Each Holder and the Company acknowledge that disclosure of Confidential Information in violation of the provisions of this Section 3.2 may cause irreparable injury to the Company and/or the Members for which monetary damages are inadequate, difficult to compute, or both. Accordingly, each Holder and the Company agree that such Holder’s and the Company’s obligations under this Section 3.2 may be

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enforced by specific performance and that breaches or prospective breaches of this Section 3.2 may be preliminarily and/or permanently enjoined.
Section 3.3      Certification . No Membership Interest shall be certificated unless otherwise directed by the Board. From time to time, the Board may cause any or all of the Membership Interests to be certificated, and may place one or more legends on any of such certificates. Without limitation of the foregoing, the Board may place the following legend on such certificates:
The securities represented hereby have not been registered under the Securities Act of 1933, as amended (the “ Act ”) or any applicable states securities laws, and may not be resold unless they are registered under the Act and those securities laws or an exemption from registration is available thereunder. The securities represented hereby are subject to the Limited Liability Company Agreement of the issuer of such securities dated as of [DATE], as amended from time to time, including the transfer restrictions set forth therein. A copy of that agreement may be obtained at the Company’s principal executive offices without charge.
ARTICLE IV
CONTRIBUTIONS AND CAPITAL ACCOUNTS
Section 4.1      Capital Contributions . Each Holder has made or promptly shall make a Capital Contribution (if any) to the Company as set forth opposite such Person’ name on Exhibit A hereto. No other Capital Contributions have been made or shall be made to the Company other than as set forth on Exhibit A . Except as otherwise specifically provided in this Agreement, no Holder shall be required to make any additional Capital Contribution.
Section 4.2      Loans . Any Member may make loans to the Company at such times and on such terms as are mutually agreed upon by the Board and such Member, and any loan by a Member to the Company shall not be considered to be a Capital Contribution for any purpose and shall not result in an increase in the amount of the Capital Account of such Member.
Section 4.3      Return of Capital Contributions; Interest . No Holder shall be paid interest on any Capital Contribution to the Company or on such Person’s Capital Account, and no Person shall have any right (a) except upon dissolution of the Company pursuant to the terms of this Agreement, to demand the return of such Person’s Capital Contribution or any other distribution from the Company (whether upon resignation, withdrawal or otherwise) or (b) to cause a partition of the Company’s assets.
Section 4.4      Capital Accounts . An individual Capital Account shall be established and maintained for each Holder, in the manner provided by Treasury Regulations Section 1.704-1(b)(2)(iv) and the following provisions:
(a)      to such Holder’s Capital Account there shall be credited such Holder’s Capital Contributions, such Holder’s distributive share of Profits and other items of income or gain specially

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allocated hereunder and the amount of any Company liabilities that are assumed by such Holder or that are secured by any Company assets distributed to such Holder;
(b)      to such Holder’s Capital Account there shall be debited the amount of cash and the Gross Asset Value of any other asset of the Company distributed to such Holder pursuant to any provision of this Agreement, such Holder’s distributive share of Losses and other items of loss, expense and deduction specially allocated hereunder and the amount of any liabilities of such Holder that are assumed by the Company or that are secured by any asset contributed by such Holder to the Company;
(c)      in determining the amount of any liability for purposes of this Section 4.4 , there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code or the Treasury Regulations; and
(d)      in the event that ownership of (all or a portion of) any Membership Interest is acquired by a Person in accordance with the terms of this Agreement, such Person shall succeed to the Capital Account associated with the acquired Membership Interest.
Section 4.5      Limitation on Liability . Except as otherwise required by applicable law, no Holder shall have any personal liability whatsoever in such Holder’s capacity as a Holder, whether to the Company or any of its Affiliates, to any of the other Holders, to the creditors of the Company or any of its Affiliates or to any other Person, for the debts, liabilities, commitments or any other obligations of the Company or any of its Affiliates. Each Holder shall be liable only to make such Holder’s Capital Contribution and for any other obligations provided expressly herein and shall not be required to pay to the Company or any other Holder any deficit or negative balance which may exist from time to time in such Holder’s Capital Account including, but not limited to, upon or after dissolution of the Company.
ARTICLE V
DISTRIBUTIONS
Section 5.1      General . Subject to Section 5.2 and Section 5.3 , as determined by the Board in its sole discretion from time to time, the Company may make distributions of Available Cash to the Holders as follows:
(a)      First, to the Holders, pro rata in accordance with their respective amounts of Unrecovered Capital, until each such Holder’s Unrecovered Capital equals zero;
(b)      Second, to the Holders, pro rata in accordance with their respective amounts of Preferred Return, until each such Holder has received an amount equal to the Preferred Return of such Holder; and
(c)      Third, to the Holders, pro rata in accordance with their respective total Units.
Section 5.2      In-Kind Distributions . Distributions of property other than cash may be made in the discretion of the Digirad Manager. All distributions of property in kind shall be made

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as Available Cash under and in accordance with Section 5.1 and/or Section 11.3 , as applicable. Property distributed in kind shall be unencumbered and, for purposes of determining Available Cash, shall be treated as cash in an amount equal to its Gross Asset Value. Except explicitly provided under this Agreement or as otherwise required under the Delaware Act, no Holder shall be entitled to distributions of property other than cash.
Section 5.3      Tax Distributions .
(a)      Notwithstanding anything herein to the contrary, during each Fiscal Year or within ninety (90) days thereafter, to the extent of Available Cash and to the extent permitted by the Delaware Act, the Company shall, before any distributions are made under Section 5.1 , distribute, in cash, to each Member an amount sufficient to enable such Member to satisfy such Member’s federal, state and local Tax liabilities attributable to the items of income, gain, loss or deduction allocated to such Member by the Company with respect to such Fiscal Year. The amount to be distributed shall be determined by the Board in consultation with the Company’s accountants and shall be computed for each Member (i) as if such Member were taxable at the highest applicable federal, state and local income Tax rates applicable to an individual domiciled in New York City, New York; provided that such rate may be increased or decreased from time to time as reasonably determined by the Board to take into account increases or decreases in applicable federal, state and local income tax rates for such location; (ii) as if allocations from the Company were, for such year, the sole source of income and loss for such Member (but determined without regard to allocations of any Company items deductible by individuals only under Code Section 212); and (iii) without regard to the carryover of items of loss, deduction and expense previously allocated by the Company to such Member. The Board may cause the Company to make Tax distributions to Members during any year to cover estimated Taxes based on good-faith estimates of their respective tax liabilities attributable to Company Tax items for such year.
(b)      Any distributions under Section 5.3(a) to and any Underpayment Amount required by law to be withheld or paid by the Company with respect to or on behalf of or that is otherwise allocable to a Holder shall be treated as an advance and offset against and shall reduce any amount otherwise distributable to a Member under Section 5.1 or Section 5.2 . Promptly upon demand from the Company, a Holder shall pay to the Company an amount equal to any Underpayment Amount (to the extent not previously offset against any distributions under Section 5.1 or otherwise reimbursed to the Company by the Holder) that the Company has paid with respect to or on behalf of such Holder. Each Holder shall indemnify and hold harmless the Company and the other Holders from and against any liability arising out of the failure to deduct and withhold any Underpayment Amount.
ARTICLE VI
ALLOCATIONS
Section 6.1      Allocations of Profit or Loss . For each Fiscal Year, after adjusting each Holder’s Capital Account for all capital contributions and distributions during such Fiscal Year and making all allocations pursuant to Section 6.2 or Section 6.3 with respect to such Fiscal Year, items of Profit and Loss shall be allocated to each Holder such that, as of the end of such Fiscal Year, the Capital Account of each Holder shall equal:

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(a)      the amount that would be distributed under Section 5.1 to such Holder, determined as if the Company were to sell (as of the last day of the Fiscal Year) all of its assets for cash equal to their Gross Asset Values pursuant to a liquidation of the Company and distribute all of such cash in accordance with Section 11.3 (with the assumption that the amount paid in satisfaction of any nonrecourse obligation is limited to the Gross Asset Value of any property securing the nonrecourse obligation), minus
(b)      the sum of (i) the amount, if any, which each Holder is or would be obligated to contribute to capital in connection with a liquidation of the Company or otherwise in accordance with the Agreement or applicable law, (ii) such Holder’s share of Partnership Minimum Gain and (iii) such Holder’s share of Partner Nonrecourse Debt Minimum Gain.
Section 6.2      Special Allocations . The following special allocations shall be made in the following order:
(a)      Except as otherwise provided in Treasury Regulations Section 1.704-2(f), notwithstanding any other provision of this Article VI , if there is a net decrease in Partnership Minimum Gain during any Fiscal Year, each Holder shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Holder’s share of the net decrease in Partnership Minimum Gain, determined in accordance with Treasury Regulations Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 6.2(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
(b)      Except as otherwise provided in Treasury Regulations Section 1.704-2(i)(4), notwithstanding any other provision of this Article VI , if there is a net decrease in Partner Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during any Fiscal Year, each Holder who has a share of the Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an amount equal to such Holder’s share of the net decrease in Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse Debt, determined in accordance with Treasury Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Holder pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 6.2(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulations Section 1.704 2(i)(4) and shall be interpreted consistently therewith.
(c)      In the event any Holder unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) that cause such Holder’s Capital Account to be reduced below

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zero by an amount greater than such Holder’s obligation to restore deficits on the dissolution of the Company (including deemed obligations to restore deficits under Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5)) (such excess, an “ Unpermitted Deficit ”), items of Company income and gain shall be specially allocated to such Holder in an amount and manner sufficient to eliminate the Unpermitted Deficit of such Holder as quickly as possible, provided that an allocation pursuant to this Section 6.2(c) shall be made only if and to the extent that such Holder would have an Unpermitted Deficit after all other allocations provided for in this Article VI have been tentatively made as if this Section 6.2(c) were not in the Agreement. This Section 6.2(c) is intended to constitute a “qualified income offset” within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in a manner consistent therewith.
(d)      Notwithstanding any other provision of this Agreement to the contrary, for any Fiscal Year, Nonrecourse Deductions and any items required to be allocated for purposes of Code Section 199A shall be allocated among the Holders pro rata in accordance with their economic interests.
(e)      Notwithstanding any other provision of this Agreement to the contrary, any Partner Nonrecourse Deductions for any Fiscal Year shall be allocated to the Holder who (in its capacity, directly or indirectly, as lender, guarantor or otherwise) bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulations Section 1.704-2(i)(1).
(f)      To the extent an adjustment to the adjusted Tax basis of any Company asset pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Treasury Regulations Sections 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as the result of a distribution to a Holder in complete liquidation of the Holder’s Membership Interest, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis), and such gain or loss shall be specially allocated to the Holders in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such sections of the Treasury Regulations.
Section 6.3      Curative Allocations . The allocations set forth in Sections 6.2(a) through 6.2(f) hereof (the “ Regulatory Allocations ”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Holders that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 6.3 . Therefore, notwithstanding any other provision of this Article VI (other than the Regulatory Allocations), the Holders shall make such offsetting special allocations of Company income, gain, loss, or deduction so that, after such offsetting allocations are made, each Holder’s Capital Account balance is, to the extent possible, equal to the Capital Account balance such Holder would have had if the Regulatory Allocations were not part of the Agreement and all Company items were allocated pursuant to Section 6.1 and Section 6.5 .
Section 6.4      Section 704(c) and Capital Account Revaluation Allocations . In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss,

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expense, and deduction shall, solely for income Tax purposes, be allocated among the Holders so as to take account of any variation between the adjusted basis for federal income tax purposes of property contributed to the capital of the Company and such contributed property’s initial Gross Asset Value; provided that such allocations shall be based upon the “traditional method” described in the Treasury Regulations Section 1.704-3(b). In the event that the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (ii) of the definition of Gross Asset Value, subsequent allocations of income, gain, loss, expense, and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder; provided that such allocations shall be based upon the “traditional method” described in the Treasury Regulations Section 1.704-3(b). Allocations pursuant to this Section 6.4 are solely for federal, state, and local income Tax purposes and shall not affect, or in any way be taken into account in computing, any Holder’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.
Section 6.5      Additional Allocation Rules .
(a)      For purposes of determining the Profits, Losses or any other items allocable to any period, Profits, Losses and any such other items shall be determined on a daily, monthly or other basis (but no less frequently than once annually), as reasonably determined in good faith by the Board using any method that is permissible under the Code (including, but not limited to, Code Section 706) and the Treasury Regulations thereunder. In the event there is a change in any Holder’s interest in the Company during a Fiscal Year, Profits, Losses and other items of income, gain, loss, expense, and deduction shall be appropriately allocated among the Holders to take into account the varying interests of the Holders so as to comply with Code Section 706(d).
(b)      Except as otherwise provided in this Agreement, all items of income, gain, loss, expense and deduction and any other allocations not otherwise provided for shall be allocated among the Holders in the same manner as is applicable to Profits and Losses for the Fiscal Year in question.
Section 6.6      Tax Filings, Elections and Cooperation .
(a)      Except as otherwise set forth herein, the Company shall properly prepare and timely file or shall cause to be properly prepared and timely filed all Tax returns required to be filed for or on behalf of the Company, which Tax returns shall be prepared, except as otherwise provided herein, in such manner (including, but not limited to, the making of any election or the taking of any position) as the Board may determine in good faith to be in the best interests of the Members. Unless otherwise required by applicable law, the Company shall use the Fiscal Year as the Tax period on all income Tax returns.
(b)      The Company shall (a) use reasonable efforts to cause to be delivered within seventy-five (75) days after the end of each Fiscal Year (but in no event later than September 15 of the Fiscal Year immediately following each such Fiscal Year), a Schedule K-1 with respect to each such Fiscal Year to each Person that was a Holder at any time during each such Fiscal Year; and (b) make available to each Holder such other information as may be necessary for the preparation of

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any Tax return for or including such Holder or the making of any estimated Tax payment for or on behalf of such Holder (or if such Holder is a flow-through entity for federal income tax purposes, its direct or indirect owners).
(c)      To the maximum extent permitted by the Code, the Treasury Regulations and other applicable law, the Company shall make or cause to be made and shall maintain or cause to be maintained:
(i)      in the case of any Fiscal Year with respect to which the Company is eligible to make an election under Code Section 6221(b), an election to apply Code Section 6221(b), and
(ii)      in the case of any Fiscal Year with respect to which the Company fails or is ineligible to make an election under Code Section 6221(b), an election to apply Code Section 6226.
(d)      Except as provided in Section 7.1(e) , the Company shall take and shall cause to be taken any and all actions (including, but not limited to, the providing of all notices required under Code Section 6221(b)(1)(E) and all statements required under Code Section 6226(a)(2)) necessary to allow the making and maintenance of any election in accordance with Section 6.6(c) . As determined by the Digirad Manager, the Company may apply any reasonable method for the purpose of determining (i) a Holder’s share of any adjustment described in Code Section 6226(a)(2) (including, but not limited to, for the purpose of providing any statement described in Code Section 6226(a)(2)) or for any other Tax purpose or (ii) the extent to which any Underpayment Amount has been withheld or paid by the Company with respect to or on behalf of or is otherwise attributable to a Holder. Any determination under the preceding sentence shall be final and binding on the Company and all Holders and neither the Company nor any Holder shall take any position for any purpose that is inconsistent with such determination.
(e)      To the extent permitted by a State Tax, the Company shall take such actions as may be reasonably necessary to reduce, prevent or otherwise mitigate the Company’s liability for any Underpayment Amount under the State Tax, including, but not limited to, making elections similar to and in the same order of preference as the elections described in each of Section 6.6(c) and Section 6.6(d) .
(f)      As determined by the Digirad Manager in its sole discretion, the Company may elect in a timely manner pursuant to Code Section 754 and pursuant to any corresponding provisions of applicable state and local Tax laws to adjust the bases of the assets of the Company pursuant to Code Sections 734 and 743 and pursuant to any corresponding provisions of applicable state and local Tax laws.
(g)      Neither the Company, any Manager, any Officer, nor any Holder shall take any action (including, but not limited to, the filing of any Tax return or the making of any election on or in connection with any Tax return) or permit or cause any action to be taken by or on behalf of the Company that would cause or otherwise result in:

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(i)      the classification of the Company or any of its Affiliates as an association taxable as a corporation for any income Tax purpose,
(ii)      the exclusion of the Company from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of other applicable Tax law,
(iii)      the taking by any Holder of any position for any purpose that is inconsistent with the treatment of such position on any U.S. federal income tax return of the Company or any of its Affiliates, and
(iv)      the amendment, revocation, lapse or termination of any election under Code Section 6221(b) or Code Section 6226, each as in effect with respect to a Fiscal Year.
(h)      When and as requested by the Company, each Holder, at the Holder’s own expense, shall preserve and furnish to the Company all documents and information (including, but not limited to, any change in mailing address or other contact information, any change in residency for any Tax purpose, and any social security, employer identification or other taxpayer identification number), and shall take such other action (including, but not limited to, a Holder’s filing of one or more amended Tax returns) as may be necessary to enable the Company or the Board (or any Person on behalf of the Company or the Board) to (i) prepare, amend and/or file any Tax return (including, but not limited to, any making, amendment, rescission or revocation of any election on or with respect to any Tax return), (ii) eliminate, settle, limit, reduce, modify or otherwise determine any liability for any Underpayment Amount (including, but not limited to, any “imputed underpayment amount” under Code Section 6225(c)), (iii) register to do business, collect Tax, or comply with any similar prerequisite to doing business or conducting any other activity in any jurisdiction, or (iv) pursue, defend, settle or otherwise respond to any Proceeding. In the case of any Fiscal Year with respect to which an election under Code Section 6226 (or under any other similar or corresponding provisions of any State Tax) is or will be in effect, each Holder shall comply with all provisions of Code Section 6226 (and any other similar or corresponding provisions of any State Tax), including, but not limited to, taking such Holder’s share of any adjustment under Code Section 6226 into account on any separate Tax return of such Holder, the amendment of all Tax returns affected by such adjustment, and the payment of any increased or additional Tax resulting therefrom.
(i)      Without the consent of the Digirad Manager, which consent shall be at the sole discretion of the Digirad Manager, no Holder shall take any action (including, but not limited to, converting from an entity described in Code Section 6221(b)(1)(C) to an entity not described in Code Section 6221(b)(1)(C) and any gift, bequest or other Transfer) that, either alone or in conjunction with any other action or other circumstance, can or will revoke, amend, terminate or otherwise adversely affect any election under Code Section 6221(b) or the Company’s present or future ability or eligibility to make any election under Code Section 6221(b).
Section 6.7      Partnership Representative .
(a)      The Partnership Representative shall act and serve in the capacity as the “partnership representative” within the meaning of Code Section 6223 and, if and to the extent

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permitted by an applicable State Tax, as the “partnership representative” or “tax matters partner” or in any other similar capacity for purposes of such State Tax. If the Partnership Representative for federal income tax purposes cannot also serve in the capacity of a “partnership representative” or “tax matters partner” or in any other similar capacity for purposes of a State Tax, the Partnership Representative designated by the Board for purposes of such State Tax shall act in such capacity for purposes of such State Tax (and only for purposes of such State Tax). No more than one Person at any time may serve as the Partnership Representative with respect to the same Tax in the same Fiscal Year. No Person shall be selected as the Partnership Representative with respect to a Fiscal Year, unless (i) for federal income tax purposes, such Person is qualified to serve as the “partnership representative” within the meaning of Code Section 6223 and (ii) in the case of any State Tax for any Fiscal Year, such Person is qualified to serve in the requisite capacity under the State Tax. During any time that a Partnership Representative is not also a Manager, the Partnership Representative shall act at all times only under the supervision of and at the direction of the Digirad Manager and, except as otherwise provided in this Agreement, the Partnership Representative shall not and shall not have the authority to bind the Company, any Manager, any Holder or any Officer in any Proceeding. The Partnership Representative (and any designee of the Partnership Representative in its role as a “designated individual” (as such term is defined in Treasury Regulations Section 301.6223-1(b)(3))) shall be an Officer for all purposes of this Agreement.
(b)      Within ten (10) days after the receipt of any notice from the IRS (or other Tax authority) relating to any Tax Proceeding, the Company shall mail or cause to be mailed a copy of such notice to each Member. Thereafter, the Company shall deliver or cause to be delivered to each Member in writing (or in such other form as may be necessary to preserve any applicable attorney-client privilege) a report setting forth in reasonable detail the status of the Tax Proceeding, no later than ten (10) days after the close of each calendar quarter or an occurrence of any significant change, progress or other development in the Tax Proceeding (including, but not limited to, copies of all material written communications relating to the Tax Proceeding that the Company, any Manager or any Officer may send or receive).
(c)      Neither the Company, any Manager nor any Officer, either directly or through any of their respective Affiliates, shall take any material direct or indirect action or make any material decision with respect to any Tax Proceeding, or any of Code Sections 6221 through 6241, unless (i) (A) the Company has first given the Members written notice of the contemplated action or decision at least ten (10) Business Days prior to the taking such action and (B) the Company has received the written consent of the Members holding more than fifty percent (50%) of the Voting Units to such contemplated action or decision or (ii) the Board determines in good faith that obtaining the written consent of the Members in accordance with the immediately preceding clause would result, in the interim required to obtain such consent, in a default judicial or administrative judgment against the Company, any Manager, any Member or any of their respective Affiliates. Neither the Company, any Manager nor any Officer shall bind any Member to a settlement agreement with respect to any Tax without first obtaining the written consent of such Member.
Section 6.8      Survival . If a Person, in whole or in part, makes a Transfer of a Membership Interest or otherwise ceases to be a Holder (including, but not limited to, as a result of any abandonment of a Membership Interest), then such Person shall remain obligated and subject

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to the terms and conditions of each of Section 5.3(b) , Section 6.6 and Section 6.8 , along with any other provisions of this Agreement necessary or ancillary to implementation of any of Section 5.3(b) , Section 6.6 and Section 6.8 , in the same manner as if such Transfer or cessation never occurred.
ARTICLE VII
MANAGEMENT
Section 7.1      Management of the Company .
(a)      Each Voting Unit shall be entitled one (1) vote.
(b)      There shall be a board of managers (the “ Board ”) with at least one Person selected as a Manager (as defined below). Except as provided below in this Section 7.1 , a Person shall serve as a Manager until the effective date of such Person’s resignation or removal (for any reason or no reason) as a Manager by the Members in accordance with Section 7.1(c) . As of the date hereof and unless otherwise altered by the Members in accordance with Section 7.1(c) , the Board shall consist of two managers (each, a “ Manager ”) (as identified on Exhibit B) . Digirad Corporation may, in its sole discretion, replace the Digirad Manager, and ATRM Holdings, Inc. may, in its sole discretion, replace the ATRM Manager.
(c)      Subject to Section 7.1(b) , upon a vote of Members owning more than fifty percent (50%) of the Voting Units, the Members may (i) for any reason or no reason, remove any Person as a Manager (including, but not limited to, any removal necessary as a result of any decrease in the number of Managers on the Board) and/or (ii) fill any vacancy on the Board (whether occurring as a result of a resignation, an increase in the number of Managers on the Board or otherwise).
(d)      The business and affairs of the Company shall be managed exclusively by the Board and by such Officers as may be appointed from time to time by the Board. Except as provided in Section 7.1(e) or a non-waivable provision of the Delaware Act, the Board shall have full and complete authority, power and discretion to direct, manage and control the business, affairs and properties of the Company and its Affiliates.
(e)      Notwithstanding anything to the contrary contained herein, each of the Company, the Board, any Manager, any Officer and any of their respective Affiliates shall not take and shall not cause or allow any of their respective Affiliates to take any action or other activity (other than any non-binding and reasonable activity that is exploratory, investigatory or similar in nature) regarding any Major Decision without the consent of the Digirad Manager.
(f)      Except as provided on Exhibit B or as otherwise provided in this Agreement, the Board may appoint one or more Officers with the rights and duties set forth in this Agreement and such other officers and agents of the Company with such titles, rights and duties as the Board may from time to time determine. For any reason or no reason, at any time, the Board may remove a Person as an Officer (provided that such removal shall have no effect on such Person’s status, if any, as a Member). A Person shall serve as an Officer shall serve until such Person’s successor is appointed by the Board, or until such Person’s earlier death, incapacity, resignation or removal by the Board.

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Section 7.2      Resignation . A Person may resign as a Manager at any time by giving written notice to the Company. The resignation of a Person as a Manager shall not affect any rights or obligations of such Person and shall not constitute a withdrawal of such Person as a Member.
Section 7.3      Vacancies . Any vacancy occurring for any reason on the Board shall be filled by the Members, in accordance with the provisions of Section 7.1 .
Section 7.4      Action by the Board . The Board may act by vote, resolution or other action approved or adopted at a meeting held in accordance with this Section 7.4 , or by a written consent signed in accordance with this Section 7.4 . The rules for the conduct of meetings of the Board and for action by written consent of the Board are as follows:
(a)      A meeting of the Board may be called by any Manager. A meeting of the Board shall be called upon delivery to the Managers of notice of a special meeting of the Board given in accordance with Section 7.4(b) below.
(b)      The Company shall send written notice stating the date, time, and place of any meeting of the Board and a description of the purpose for which the meeting is called, to each Manager, at such address as appears in the records of the Company at least three (3) Business Days, but no more than thirty (30) Business Days, before the date of the meeting.
(c)      A Manager may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Company for inclusion in the minutes. A Manager’s presence at any meeting (i) waives objection to lack of notice or defective notice of the meeting, unless the Manager at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the Manager objects to considering the matter when it is presented.
(d)      Any or all Managers may participate in any meeting by, or through the use of, any means of communication by which all Managers participating may simultaneously hear each other during the meeting, and such means of communication shall be made available to each Manager in connection with each annual or special meeting of the Board. A Manager so participating is deemed to be present in person at the meeting.
(e)      The presence of both Managers at any meeting is necessary for a quorum. Any action proposed to be taken by the Board shall be approved upon the affirmative vote of both Managers present at the meeting, with each Manager having one vote.
(f)      Any action required or permitted to be taken at a meeting of the Board may be taken without a meeting if the action is consented to in writing and is signed by all of the Managers. The written consent shall be delivered to the Company for inclusion in the minutes.
Section 7.5      Action by the Members . The Members may act by vote, resolution or other action approved or adopted at a meeting held in accordance with this Section 7.5 , or by a

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written consent signed in accordance with this Section 7.5 . The rules for the conduct of meetings of the Members and for action by written consent of the Members are as follows:
(a)      Meetings of the Members may be called only by (i) the Board or (ii) Members owning at least ten percent (10%) of the Voting Units. Meetings of the Members shall be called upon delivery to the Members of notice of a meeting of the Members given in accordance with Section 7.5(b) below.
(b)      Upon the request of the Board or the Members calling a meeting of the Members under Section 7.5(a)(ii) , the Company shall send written notice stating the date, time, and place of any meeting of the Members and a description of the purpose for which the meeting is called, including any matter to be voted on by the Members (and no other matter may be so presented for a vote of the Members without first complying with the notice provisions in this Section 7.5(b) ), to each Member, at such address as appears in the records of the Company at least ten (10), but no more than thirty (30), days before the date of the meeting.
(c)      A Member may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Company for inclusion in the minutes. A Member’s presence at any meeting (i) waives objection to lack of notice or defective notice of the meeting, unless the Member at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (ii) waives objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the Member objects to considering the matter when it is presented.
(d)      Any or all Members may participate in any meeting by, or through the use of, any means of communication by which all Members participating may simultaneously hear each other during the meeting, and such means of communication shall be made available to each Member in connection with each annual or special meeting of the Members. A Member so participating is deemed to be present in person at the meeting.
(e)      The presence of Members holding a majority of the Voting Units at a meeting is necessary for a quorum. Except as provided in Section 7.1(e) , any action proposed to be taken by the Members shall be approved upon the affirmative vote of holders of a majority of the Voting Units represented at the meeting.
(f)      Any action required or permitted to be taken at a meeting of the Members may be taken without such meeting, without prior notice and without a vote, by written consent, setting forth the action so taken, signed by holders of a majority of the Voting Units consented to in writing.
Section 7.6      Officers .
(a)      Except as set forth on Exhibit B , in this Agreement, or in any employment or other applicable agreement, the Board, in its sole discretion, may designate and appoint one or more Officers on the terms and conditions set forth herein or on such other terms and conditions that the Board, in its sole discretion, may determine from time to time (including, but not limited to, any

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addition, restriction or other modification to any power, duty and/or responsibility set forth in this Section 7.6 ). No Officer may act as a Partnership Representative or have any power, right, duty or obligation of a Partnership Representative, in whole or in part, unless such Officer meets the qualifications for a Partnership Representative and is explicitly designated and appointed as such by the Board.
(b)      The Chairman of the Board (the “Chairman ”) shall preside at all meetings of the Members and the Board and shall see that the orders and resolutions of the Board are carried into effect.
(c)      Subject to the powers and oversight of the Board and the Chairman, the chief executive officer (the “ Chief Executive Officer ”) shall have general charge of the Company’s business, affairs and property (including, but not limited to, responsibility for the Company’s day-to-day operations of the Company and control over its Officers, agents and employees) and shall see that all orders and resolutions of the Board are carried into effect. The Chief Executive Officer shall execute bonds, mortgages and other contacts requiring a seal, under the seal of the Company, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the Board to some other Officer. Whenever the President is unable to serve, by reason of sickness, absence or otherwise, the Chief Executive Officer shall perform all the duties and responsibilities and exercise all the powers of the President.
(d)      Subject to the powers of the Board and the Chairman and the terms, the president (the “ President ”) shall devote such time and attention as is necessary to discharge the responsibilities of the office of the President. The President may execute contracts in the name of the Company and appoint and discharge agents and employees of the Company. The President may sign, with the secretary, assistant secretary, treasurer or assistant treasurer, certificates (if any) for any Membership Interest, and may sign any policies, deeds, mortgages, bonds, contracts, or other instruments that the Board has authorized to be executed except in cases where the signing and execution thereof shall be expressly delegated by the Board or by this Agreement to some other Officer, or shall be required by law to be otherwise signed or executed.
(e)      In the absence of the Chief Executive Officer and the President or in the event of the Chief Executive Officer’s or President’s inability or refusal to act, a vice-president (each, a “ Vice President ”) (if there be any or in the event there be more than one Vice-President, the Vice-Presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the Chief Executive Officer or President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer or President.
(f)      The secretary (the “ Secretary ”) shall attend all meetings of the Board and all meetings of the Members and record all the proceedings of the meetings of the Company and of the Board in a book to be kept for that purpose and shall perform like duties for the standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the Members and special meetings of the Board. The Secretary shall have custody of the Company’s seal (if any), and the Secretary shall have authority to affix the same to any instrument

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requiring it and when so affixed, it may be attested by the Secretary’s signature. The Board may give general authority to any other Officer to affix the Company’s seal (if any) and to attest the affixing by the Secretary’s signature.
(g)      The treasurer (the “ Treasurer ”) shall have the custody of the Company’s funds and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Company and shall deposit all moneys and other valuable effects in the name and to the credit of the Company in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the Company as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Board, at its regular meetings, or when the Board so requires, an account of all transactions as Treasurer and of the financial condition of the Company.
Section 7.7      Limitation on Authority of Members . Notwithstanding anything to the contrary in the Act, no Holder in his capacity as a Holder shall have the authority to bind the Company. No Holder is an agent of the Company solely by virtue of being a Holder, and no Holder has authority to act for the Company solely by virtue of being a Holder. Any Holder who takes any action that binds the Company in violation of this Agreement shall be solely responsible for any loss and expense incurred by the Company as a result of the unauthorized action and shall indemnify and hold the Company harmless with respect to the loss or expense.
ARTICLE VIII
EXCULPATION AND INDEMNIFICATION
Section 8.1      Exculpation .
(a)      Except as otherwise provided herein, to the maximum extent permitted by the Delaware Act, no Person who is or was a Manager or Officer or any of such Person’s respective Affiliates, heirs, successors, assigns, agents or representatives shall be liable to the Company or to any Holder for any act or omission performed or omitted by such Person in such Person’s capacity as a Manager or Officer or otherwise taken in good faith; provided that, except as otherwise provided herein, such limitation of liability shall not apply to the extent it shall have been finally adjudicated that such Person (i) did not act in good faith and in a manner that such Person reasonably believed to be in the best interest of the Company, (ii) was either grossly negligent or engaged in willful malfeasance, (iii) breached this Agreement in any material respect, or (iv) violated any material law. A Manager or Officer shall be entitled to rely upon the advice of legal counsel, independent public accountants and other experts, including financial advisors, and any act of or failure to act by such Manager or Officer in good faith reliance on such advice shall in no event subject such Manager or Officer or any of their respective Affiliates, heirs, successors, assigns, agents or representatives to liability to the Company or any Holder.
(b)      Notwithstanding anything to the contrary contained herein, whenever in this Agreement or any other agreement contemplated herein or otherwise, a Manager is permitted or required to take any action or to make a decision in its “sole discretion” or “discretion” or that it deems “necessary,” “necessary or appropriate,” “necessary or desirable” or “necessary, appropriate or advisable,” or under a grant of similar authority or latitude, such Manager shall, to the fullest extent permitted by applicable law, make such decision in its sole discretion (regardless of whether

25



there is a reference to “sole discretion” or “discretion”), shall be entitled to consider such interests and factors as it desires (including the interests of a Holder with which a Manager may be affiliated), and shall have no duty or obligation (fiduciary or otherwise) to give any consideration to any interest of or factors affecting the Company, its Affiliates or the Holders, and shall not be subject to any other or different standards imposed by this Agreement, any other agreement contemplated hereby, under the Delaware Act or under any other applicable law or in equity.
(c)      Whenever in this Agreement a Manager is permitted or required to take any action or to make a decision in its “good faith” or under another express standard, such Manager shall act under such express standard and, to the extent permitted by applicable law, shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein, and, notwithstanding anything contained herein to the contrary, so long as such Manager believes that the action taken or the decision made is in or not opposed to the best interests of the Company, the resolution, action or terms so made, taken or provided by such Manager shall not constitute a breach of this Agreement or any other agreement contemplated herein or impose liability upon such Manager or any of its Affiliates, heirs, successors, assigns, agents or representatives.
(d)      To the maximum extent permitted by applicable law, except as provided and subject to Section 7.7 , each Holder hereby waives any claim or cause of action against a Person who is or was a Manager (other than when acting solely in the capacity of an employee of the Company) or any of such Person’s Affiliates, heirs, successors, assigns, agents and representatives for any breach of any fiduciary duty to the Company or its Holders by such Person, including as may result from a conflict of interest between the Company or any of its Affiliates and such Person, and any liability for breach of fiduciary duties as a Manager (other than when acting solely in the capacity of an employee of the Company) is hereby eliminated to the fullest extent permitted by applicable law. Subject to compliance with the express terms of this Agreement, a Person who is or was a Manager (other than when acting solely in the capacity of an employee of the Company) shall not be obligated to recommend or take any action as a Manager that prefers the interests of the Company or the other Holders over the interests of such Person (or the interest of a Holder with which such Person is affiliated) or its Affiliates, heirs, successors, assigns, agents or representatives.
Section 8.2      Indemnification.
(a)      To the fullest extent permitted by law, the Company shall indemnify and hold harmless any Person that was or is a party or is threatened to be made a party to any Proceeding, by reason of the fact that such Person is or was an Indemnitee, against any loss, damage, liability or expense (including reasonable attorneys’ fees, costs of investigation and amount paid in settlement) incurred by or imposed upon the Indemnitee in connection with such Proceeding.
(b)      The Company shall pay the expenses incurred by an Indemnitee in defending any Proceeding, or in opposing any claim arising in connection with any potential or threatened Proceeding, in each case for which indemnification may be sought pursuant to this Section 8.2 , in advance of the final disposition thereof, upon receipt of a written undertaking by such Indemnitee to repay such payment if it shall be determined that such Indemnitee is not entitled to indemnification under this Section 8.2 with respect to such Proceeding.

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(c)      The rights to indemnification and advancement of expenses conferred in this Section 8.2 shall (i) not be exclusive of any other right which any Indemnitee may have or hereafter acquire under any law, statute, rule, regulation, charter document, by-law, contract or agreement and shall inure to the benefit of the executors, administrators, personal representatives and successors of each such Indemnitee and (ii) continue as to an Indemnitee even if such Indemnitee is not or ceases to be a Holder, Member, Manager, or Officer.
(d)      Rights and benefits conferred on an Indemnitee under this Section 8.2 shall be considered a contract right and shall not be retroactively abrogated or restricted without the written consent of the Indemnitee affected by the proposed abrogation or restriction.
(e)      The Company, at the sole discretion of the Board, may indemnify and advance expenses to a non-Officer employee or agent of the Company to the same extent and subject to the same conditions under which it may indemnify and advance expenses to an Indemnitee under Section 8.2 .
(f)      Recourse by an Indemnitee for indemnity under Section 8.2(a) shall be only against the Company as an entity and no Member shall by reason of being a Member be liable for the Company’s obligations under Section 8.2(a) or Section 8.2(c) .
(g)      Notwithstanding anything to the contrary in this Agreement or applicable law, an Indemnitee shall not have any right or benefit under this Section 8.2 or any other right to indemnification or reimbursement under this Agreement or applicable law with respect to a Proceeding if:
(i)      the Indemnitee is or was a plaintiff in the Proceeding for which indemnification is being sought under this Section 8.2 (other than a Proceeding brought and maintained solely for the purpose of obtaining indemnification under this Section 8.2) ; or
(ii)      it shall have been finally adjudicated that such Indemnitee (A) did not act in good faith and in a manner that such Indemnitee reasonably believed to be in the best interest of the Company, (B) was either grossly negligent or engaged in willful malfeasance, (C) breached this Agreement in any material respect, or (D) violated any material law applicable or relating to the Company or any of its Affiliates.
(h)      If this Section 8.2 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Person otherwise entitled to indemnification under this Section 8.2 to the full extent permitted by any portion of this Section 8.2 that shall not have been invalidated.
ARTICLE IX
BOOKS AND RECORDS
Section 9.1      Books and Records . Proper and complete books and records of the Company, in which shall be entered fully and accurately the transactions of the Company, shall be

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kept and maintained at all times at the principal offices of the Company or, subject to the provisions of the Delaware Act, at such other place as the Board may from time to time determine.
Section 9.2      Bank Accounts . Funds of the Company shall be used only for Company purposes and shall be deposited in such accounts in banks or other financial institutions as may be established from time to time by the Board. Withdrawals shall be made by such Persons as are designated from time to time by the Board.
ARTICLE X
TRANSFERS
Section 10.1      Restrictions on Transfers . No Person shall Transfer any Membership Interest without the prior written consent of the Digirad Manager, which consent shall be at the sole discretion of the Digirad Manager. A Transfer of a Membership Interest shall remain subject to Section 6.8 , Section 10.2 and Article XIII , without regard to the consent of the Digirad Manager to such Transfer.
Section 10.2      Other Transfer Conditions, Restrictions and Requirements .
(a)      In the event of a Transfer of any Membership Interest, the Transferee of the Membership Interest shall take and hold such Membership Interest subject to this Agreement, shall assume all of the obligations arising under the Agreement (including, but not limited to, an obligation set forth in Section 6.8 ) or applicable law of the Transferor of the Membership Interest, and otherwise shall comply with this Agreement. Without any limitation on the foregoing, unless and to the extent admitted as a Member in accordance with this Agreement, a Holder shall not have any right to vote or consent or otherwise participate in management.
(b)      Notwithstanding anything in this Agreement to the contrary, no Transfer of a Membership Interest shall be permitted and any such purported Transfer shall be void ab initio , and no Transferee of a Membership Interest shall be admitted to the Company as a Member, if (i) such Transfer violates any provision of this Agreement or (ii) the Transferee of such Membership Interest does not agree in writing to be bound by all of the provisions of this Agreement (such writing to be in form and substance reasonably satisfactory to the Digirad Manager) or fails to execute or provide any document required or requested by the Digirad Manager.
Section 10.3      Termination of Status . Upon a Transfer (other than a Transfer in the nature of a pledge, mortgage, lien or other encumbrance in the nature of a security interest) of all of a Holder’s Membership Interest in a Transfer permitted by this Agreement, such Holder, if admitted as a Member, shall cease to be a Member, and all rights of such Holder as a Member or Holder shall terminate, except that Section 6.8 , Article VIII and the representations and warranties made by such Member or Holder under Section 12.1 , together with any other provisions of this Agreement necessary or ancillary to implementation of any of the foregoing provision, shall survive such termination.
ARTICLE XI
WITHDRAWAL AND DISSOLUTION

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Section 11.1      Withdrawal . No Holder shall have the power or right to withdraw or otherwise resign from the Company prior to the dissolution and winding up of the Company pursuant to this Article XI without the prior written consent of the Digirad Manager (which consent may be withheld by the Digirad Manager in its sole discretion), except that, upon a Transfer (other than a Transfer in the nature of a pledge, mortgage, lien or other encumbrance in the nature of a security interest) of all of a Holder’s Membership Interest in a Transfer permitted by this Agreement, and subject to Section 6.8 , such Holder shall cease to be a Holder. Notwithstanding that payment on account of a withdrawal may be made after the effective time of such withdrawal, subject to Section 6.8 , any completely withdrawing Holder will not be considered a Holder for any purpose after the effective time of such complete withdrawal, and, in the case of a partial withdrawal, such Holder’s Capital Account (and corresponding voting and other rights) shall be reduced for all other purposes hereunder upon the effective time of such partial withdrawal.
Section 11.2      Events of Dissolution . The Company shall be dissolved and its affairs shall be wound up on the first to occur of the following:
(a)      the consent of Members owning more than fifty percent (50%) (as determined without regard to any quorum or other similar requirement) of the Voting Units;
(b)      the entry of a decree of judicial dissolution of the Company under the Delaware Act; or
(c)      the sale of all or substantially all of the Company’s assets.
Section 11.3      Liquidating Distributions . Upon the dissolution and winding-up of the Company, the assets shall be distributed as follows:
(a)      First, to creditors, including Holders who are creditors, to the extent permitted by law, in the order of priority as provided by law to satisfy the liabilities of the Company whether by payment or by the establishment of adequate reserves, excluding liabilities for distributions to Holders pursuant to Article V ; and
(b)      Thereafter, the remaining assets will be distributed in accordance with Section 5.1 .
Section 11.4      Conduct of Winding-Up . The winding-up of the business and affairs of the Company shall be conducted by the Board except as otherwise required by law.
Section 11.5      Deficit Capital Accounts . Notwithstanding any custom or rule of law to the contrary, to the extent that any Holder has a deficit Capital Account balance, upon dissolution of the Company such deficit shall not be an asset of the Company and no Holder shall be obligated to contribute such amount to the Company to bring the balance of any Holder’s Capital Account to zero.

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ARTICLE XII
REPRESENTATIONS, WARRANTIES,
AGREEMENTS AND OTHER MATTERS
Section 12.1      Holder Representations . In connection with the acquisition and/or ownership of any Membership Interest, the Person acquiring the Membership Interest represents and warrants to the Company and agrees and acknowledges that:
(a)      any Membership Interest acquired by or for such Person is and shall be acquired solely for such Person’s own account, for investment purposes only and not with a present view toward the distribution thereof and not with any present intention of distributing or reselling any such Membership Interest; provided that, irrespective of any other provisions of this Agreement, any Transfer of such Membership Interest by such Person shall be made only in compliance with all applicable federal and state securities laws, including, without limitation, the Securities Act;
(b)      any Membership Interest acquired by or for such Person is not registered under the Securities Act nor qualified nor registered under state law and must be held by such Person until such Membership Interest or any successor security is so registered or qualified for an exemption from such registration or qualification is available; neither the Company nor any Member or Manager shall have any obligation to take any action to cause any Membership Interest to be registered under the Securities Act or qualified or registered under state law or to qualify any Membership Interest for an exemption from such registration or qualification; and the Company shall give to the party responsible for recording Transfers of Membership Interest or successor securities “stop transfer” directions prohibiting Transfers in violation of the foregoing provisions of this Section 12.1(b) ;
(c)      the execution, delivery and performance of this Agreement by such Person does not and shall not conflict with, violate or cause a breach of any agreement, contract or instrument to which such Person is a party or any judgment, order or decree to which such Person is subject;
(d)      such Person has no and shall not grant any proxy or become party to any voting trust or other agreement which is inconsistent with, conflicts with or violates any provision of this Agreement;
(e)      if such Person is a corporation, partnership, limited liability company, trust, custodianship, estate or other entity, this Agreement has been duly executed by a duly authorized person on its behalf and constitutes the legally binding obligation of such Person, enforceable against such Person in accordance with its terms (except to the extent that enforcement may be affected by laws relating to bankruptcy, reorganization, insolvency and creditors’ rights generally and by the availability of injunctive relief, specific performance and other equitable remedies);
(f)      such Person has carefully reviewed this Agreement, has had the opportunity to ask questions and receive answers concerning such agreement and fully understands the provisions contained herein;

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(g)      with respect to the Tax and other consequences of acquiring, receiving, owning, holding, and disposing of any Membership Interest and the income and proceeds thereof, with the exception of such written opinions as may be given to a Person or for its benefit by counsel representing another Person or the Company, such Person is relying solely on its own Tax and other counsel and advisors and is not relying on the Company, or any person other than Person’s own counsel and advisors;
(h)      such Person is a “United States person” within the meaning of Code Section 7701(a)(30) (or a disregarded entity of such a United States person) and, with respect to any allocation or distribution under or any transaction contemplated by this Agreement, neither the Company, any Manager, any Officer, nor any Affiliate of any of the foregoing is or will be required to withhold or pay any Tax under Code Section 1445, Code Section 1446 or any other provision of any Tax law (other than the withholding or estimated payment of any state income Tax) with respect to or on behalf of such Person; and
(i)      such Person is not a “tax-exempt entity” within the meaning of Code Section 168(h)(2)(A).
ARTICLE XIII
MISCELLANEOUS
Section 13.1      Counsel Clause . Each of the Company, each Holder and each Manager acknowledge that Counsel represents Digirad Corporation in connection with the preparation or negotiation of this Agreement. 
Section 13.2      Amendment of Agreement . This Agreement may be amended by the Company with the written consent of Members owning more than fifty percent (50%) (as determined without regard to any quorum or other similar requirement) of the Voting Units, provided that in no event shall any amendment materially and adversely affect the economic or non-economic rights or obligations of any one Member without the prior written consent of such Member unless such amendment materially and adversely affects the same rights and obligations of all Members and in the same proportionate manner, except that any amendment which would require additional capital contributions from a Member shall require such Member’s prior written consent.
Section 13.3      Remedies . In any action to enforce this Agreement or to seek damages on account of any breach hereof, the prevailing party shall be entitled to reimbursement for its costs of collection (including reasonable attorneys’ fees and expenses). No remedy conferred upon any party to this Agreement is intended to be exclusive of any other remedy herein or by law provided or permitted, but each such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.
Section 13.4      Waiver . None of the terms of this Agreement shall be deemed to have been waived by any party hereto, unless such waiver is in writing and signed by that party. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other provision of this Agreement or any further breach of the provision so waived.

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Section 13.5      Notices .
(a)      All notices and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be delivered personally or by certified mail (return receipt requested), or telecopied (during normal business hours) and addressed, if to a Holder, to such Holder or such Holder’s personal representative at such Holder’s last address known as disclosed on the records of the Company, to the address set forth on Exhibit A or to such other address as any of the above shall have specified by notice hereunder. Each notice or other communication shall be deemed sufficiently given, served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt or the affidavit of messenger being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation.
(b)      Each Holder shall be required to keep a current address on file with the Company at all times such Holder is a Holder, and for five years following such Holder’s withdrawal from the Company. Each Holder shall indemnify and hold harmless the Company and the other Holders from and against any liability arising out of the failure to comply with this Section 13.5(b).
Section 13.6      Entire Agreement . This Agreement contains the entire agreement, and supersedes all prior agreements and understandings and arrangements, oral or written, among the parties hereto with respect to the subject matter hereof.
Section 13.7      Binding Effect; Benefits . All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns.
Section 13.8      Severability . Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be unenforceable or invalid under applicable law, such provision shall be ineffective only to the extent of such unenforceability or invalidity (and for purposes only of such applicable law), and the remaining provisions of this Agreement shall continue to be binding and in full force and effect.
Section 13.9      Headings . The section and other headings contained in this Agreement are for convenience only and shall not be deemed to limit, characterize or interpret any provisions of this Agreement.
Section 13.10      No Strict Construction . The parties hereto jointly participated in the negotiation and drafting of this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the parties hereto to express their collective mutual intent. This Agreement shall be construed as if drafted jointly by the parties hereto, and no rule of strict construction shall be applied against any Person.
Section 13.11      Interpretation . As used in this Agreement, each of the masculine, feminine and neuter genders shall be deemed to import the others whenever the context so indicates or requires. Terms defined in the singular have a comparable meaning when used in the plural and

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vice versa. Terms defined in the present tense shall have a comparable meaning when used in the past or future tense and vice versa. Terms defined as a noun shall have a comparable meaning when used as an adjective, adverb, or verb and vice versa. Whenever the term “include” or “including” is used in this Agreement, it shall mean “including, without limitation,” (whether or not such language is specifically set forth) and shall not be deeded to limit the range of possibilities to those items specifically enumerated. Unless otherwise limited, the words “hereof,” “herein” and “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular provision.
Section 13.12      Counterparts . This Agreement may be executed in any number of counterparts, and by facsimile, pdf or other electronic method, each of which shall be effective only upon delivery and thereafter shall be deemed to be an original, and all of which shall be taken to be one and the same instrument with the same effect as if each of the parties hereto had signed the same signature page.
Section 13.13      Governing Law . This Agreement and the rights of the parties hereunder shall be construed and interpreted in accordance with the laws of the State of Delaware applicable to agreements made and to the performance wholly within that jurisdiction.
Section 13.14      Jurisdiction and Venue . Each party hereto irrevocably submits to the exclusive jurisdiction of any state or federal court within the State of Delaware with respect to any cause or claim arising under or relating to this Agreement. Each party hereto irrevocably consents to the service of process by registered mail or personal service, irrevocably waives any objection based on forum non conveniens with respect to such a court, and irrevocably waives any objection to venue of such court.
[SIGNATURES APPEAR ON FOLLOWING PAGE]


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IN WITNESS WHEREOF, the parties hereto have executed this Limited Liability Company Agreement as of the date first above written.
“COMPANY”
“MEMBERS”
 
 
STAR PROCUREMENT, LLC
DIGIRAD CORPORATION
 
 
 
 
 
 
By:
/s/David J. Noble
By:
/s/Matthew G. Molchan
Name:
David J. Noble
Name:
Matt Molchan
Title:
Manager
Title:
CEO

 
 
 
 
 
ATRM HOLDINGS, INC.
 
 
 
 
 
 
 
 
By:
/s/Daniel M. Koch
 
 
Name:
Daniel M. Koch
 
 
Title:
President & CEO



S-1




EXHIBIT A

 
Holder Name & Address
Units
Capital Contribution
 
 
DIGIRAD CORPORATION
1048 Industrial Court
Suwanee, Georgia 30024
50
$1,000,000
 
ATRM HOLDINGS, INC.
5215 Gershwin Avenue, N.
Oakdale, MN 55128

50
0
 
TOTAL

100
$1,000,000















    





EXHIBIT B
Managers on the Board (as per Section 7.1(b)):
David Noble (the “ Digirad Manager ”)
Stephen Clark (the “ ATRM Manager ”)

Partnership Representative:
An individual designated by Digirad Corporation.
(Optional) In the case of any State Tax:
An individual designated by Digirad Corporation.






EXHIBIT C

Services Agreement







SERVICES AGREEMENT
This SERVICES AGREEMENT (this “ Agreement ”), effective as of January 2, 2019 is entered into by and among STAR PROCUREMENT, LLC, a Delaware limited liability Company (the “ Company ”) and KBS Builders, Inc. a Delaware Corporation (“ KBS ”). The Company and KBS are sometimes are referred to in this Agreement collectively as the “ Parties ” and individually as a “ Party ”. Capitalized terms used in this Agreement but not otherwise defined in this Agreement will have the meanings set forth in the LLC Agreement (defined below).

RECITALS

WHEREAS, ATRM Holdings, Inc., a Minnesota corporation (“ ATRM ”) and Digirad Corporation, a Delaware corporation (“ Digirad ”) are the sole members of the Company, and together with the Company are parties to that certain Limited Liability Company Agreement of the Company dated the date hereof (the “ LLC Agreement ”); and

WHEREAS, the Company was formed for purposes of creating a joint venture in which the Company will purchase and sell building materials and related goods and entry into this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:

1.    DEFINITIONS
1.1     Services ” means the services, functions, and tasks to be provided by the Company to KBS pursuant to this Agreement as described in the Service Schedule, as such services, functions and tasks may be changed or supplemented pursuant to the terms of this Agreement.
1.2     Service Schedule ” means a Schedule to this Agreement, describing (among other things) the particular Services being provided and the timing for such Services.
2.
SERVICES
2.1    Performance of Services . Subject to the other terms and conditions of this Agreement, KBS hereby grants the Company the right of first refusal to provide the Services to KBS (and, as necessary, its subsidiaries) during the Term (defined below) in accordance with and subject to the terms and conditions of this Agreement. Upon the mutual written agreement of the Parties, the Parties may modify the Services described on the existing Service Schedule or add additional Services to be performed by the Company. The Company has no obligation to provide any services other than the Services.

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2.2    First Refusal Right . KBS shall provide written notice to the Company containing all of the terms and conditions of the required Services (a “ Service Notice ”), and the Company shall be entitled to provide such Services on such (or better) terms and conditions. If the Company intends to exercise its first refusal right, it must deliver to KBS a commitment (a “ Service Commitment ”) to do so as soon as practicable and in no event later than thirty (30) days after receipt of the Service Notice from KBS or its subsidiaries. If the Company fails to provide a Service Commitment within the 30-day period or waives its first refusal right prior to that time, then KBS will be free to obtain such Services from any third party. All Services to be provided by the Company pursuant to this Agreement shall be provided by the Company in its sole discretion.
2.3    Affiliates and Subcontractors . The Company may use personnel of its Affiliates, or engage, consistent with past practice, the services of third parties to provide or assist the Company (or its Affiliates) to provide the Services.
2.4    Standard of Performance . Notwithstanding anything to the contrary in this Agreement, KBS understands and agrees that the standard of performance to which the Company and its Affiliates will be accountable under this Agreement will be to achieve a comparable level of service as KBS achieved with respect to the Services during the twelve (12) months prior to the date hereof.
2.5    Additional Resources and Consents . Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to perform any Service if doing so would require the Company to violate any law or breach any contract by which the Company or its Affiliates are bound. In addition and without limiting the foregoing, if the Company reasonably believes that performance of a particular Service requires the Company to obtain any third-party licenses or consents, or any software, technology or other goods, services or materials not already in the Company’s possession, then the Company shall promptly inform KBS, and KBS shall cooperate with the Company to obtain such licenses, consents or other or items at KBS’s sole expense if so requested by KBS. If KBS does not agree to pay the costs associated with obtaining such licenses, consents or other items, the Company shall be under no obligation to obtain such licenses, consents or other or items.
2.6    Cooperation . In order to enable the Company to perform the Services, KBS shall provide the Company with such cooperation and assistance (including access to employees) as is reasonably necessary for the Company or its Affiliates or contractors to timely perform the Services, as well as such other cooperation and assistance as the Company reasonably requests in connection with the provision of the Services hereunder.
2.7    Employees. The Parties agree that the employees and contractors of the Company providing the Services are the employees and contractors of the Company alone, and are not the employees or contractors of KBS for any purpose whatsoever.

2





3.
PAYMENT TERMS
3.1    Fees and Costs .
(a)     Unless otherwise set forth in the Service Schedule, KBS shall reimburse the Company, on a monthly basis in accordance with Section 0 , for the Company’s actual cost (excluding the Materials Purchase Amounts (defined below)) in providing the Services (the “ Service Fees ”).
(b)     Unless otherwise set forth in the Service Schedule, KBS shall pay the Company for all Building Materials, on a monthly basis in accordance with Section 0 , a purchase price equal to the full cost of Building Materials (as defined in the Service Schedule) (excluding any Service Fees) during such period, plus 3% of the cost of such Building Materials. The amount(s) payable pursuant to this Section 3.1(b) is referred to herein as the “ Materials Purchase Amount(s) .”
3.2    Invoicing and Payment . Each calendar month during the Term, the Company shall issue to KBS an invoice for the amount of the Service Fees and the Materials Purchase Amounts payable to Company for the Services rendered during that month. KBS shall pay the amount invoiced by the Company within thirty (30) days after receipt thereof. All payments made pursuant to this Section 3.2 must be made in U.S. Dollars, by wire transfer of immediately available funds to the bank account previously designated by the Company to KBS. The amount of any due but unpaid Service Fees and Materials Purchase Amounts shall bear interest from and including the due date of such fees to, and including, the date of payment at a rate per annum equal to 5%. Such interest shall be calculated daily on the basis of a 365-day year and the actual number of days elapsed, without compounding
3.3    Taxes . The fees for Services provided pursuant to this Agreement exclude all excise, sales, use, gross receipts, value added, goods and services or similar transaction or revenue-based taxes (excluding any income Taxes) applicable to the provision of the Services and imposed by any federal, state, or local taxing authority (such taxes, together with any applicable interest, penalties, or additions to tax imposed with respect to such taxes, “Taxes”), and KBS shall be responsible for payment of all such Taxes.
3.4    Expenses . Except as otherwise expressly provided in this Agreement, each Party shall bear its own costs and expenses incurred in the performance of this Agreement.
4.
PROPRIETARY RIGHTS . This Agreement and the performance of this Agreement will not affect the ownership of any intellectual property rights. No Party will gain, by virtue of this Agreement, any rights of ownership of any rights related to the intellectual property owned by any other Party.
5.
CONFIDENTIALITY . Each Party shall keep any confidential or proprietary information of the other Party acquired pursuant to or in connection with this Agreement strictly confidential.

3





6.    INDEMNIFICATION; LIMITATIONS OF LIABILITY
6.1    Indemnification . Each Party agrees to protect, defend, indemnify and hold harmless each other Party from and against any and all losses, claims, suits and actions (whether threatened or pending) arising out of or related to any (a) breach of any covenant or obligation of such Party contained in this Agreement or (b) negligence or willful misconduct of such Party or its employees or agents in connection with the performance of the Services hereunder. The rights to indemnification hereunder shall be in addition to any rights to indemnification that a Party may have under the LLC Agreement.
7.
TERM AND TERMINATION
7.1    Term of Agreement . The term of this Agreement begins on the date hereof and will continue until terminated in accordance with the terms hereof (the “ Term ”) .
7.2    Termination of Service . This Agreement shall automatically terminate upon the dissolution and winding-up of the Company pursuant to the LLC Agreement, or upon the written agreement of all Parties to the termination of this Agreement or the Services. If a Party breaches this Agreement, the other Party may terminate upon 30 days prior written notice if such breach is not cured.
7.3    Effect of Termination . Upon expiration or termination of this Agreement for any reason, the Company shall no longer be obligated to provide the terminated Services, and KBS shall no longer be obligated to pay for such Services, except with respect to any Service Fees and Materials Purchase Amounts incurred up to the date of termination or expiration (all such fees, including any applicable late fees, will become immediately due and payable by KBS to the Company upon the effective date of such termination).
7.4    Survival . The following provisions of this Agreement will survive its termination or expiration: Sections 1, 3 (with respect to Services performed prior to termination or expiration ), 4, 5, 6, 7.3, 7.4 and 8 .
8.
MISCELLANEOUS .
8.1    Notices . Any and all notices, requests, demands or other communications required to be given pursuant to this Agreement by any Party shall be in writing and shall be validly given or made to the applicable Party if served personally, by overnight mail, by nationally recognized overnight courier or sent by electronic mail, receipt confirmed. If the notice, request, demand or other communications are served personally, service shall be conclusively deemed made at the time of service. If the notice, request, demand or other communications are sent by electronic mail, service shall be conclusively deemed made the first (1st) business day following successful transmission or upon confirmation of receipt from the recipient. If the notice, demand or other communications are given by overnight mail, service shall be conclusively deemed made one (1) business day after sent in the United States mail, addressed to the applicable Party to whom the notice, demand or other communication is to be given, and when received if delivered by hand or

4





overnight courier service on any business day. Notices shall be provided to the following addresses (any of which may be changed upon like notice to the other Parties):
If to KBS to:
KBS BUILDERS, INC.
300 Park St.
South Paris, ME 04281
Attention: Matt Mosher
Telephone: (207) 744-0402
Fax: (207) 739-2223
Email: mmosher@kbs-homes.com

If to the Company to:

STAR PROCUREMENT, LLC
1048 Industrial Court
Suwanee, GA 30024
Attention: Matthew G. Molchan
Telephone: 858-726-1600
Fax: 858-726-1700
Email: Matt.Molchan@digirad.com

8.2    Assignment . No Party may assign this Agreement or its rights or obligations hereunder, in whole or in part, voluntarily or by operation of law, without the written consent of the other Party, and any attempted assignment without such consent shall be void and without legal effect.
8.3    Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
8.4    Entire Agreement . This Agreement (including the schedule attached hereto) constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
8.5    Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.

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A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
8.6    Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

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IN WITNESS WHEREOF, the undersigned have caused this Services Agreement to be executed by their duly authorized representatives as of the day and year first set written above.


 
STAR PROCUREMENT, LLC
 
 
 
By:
/s/ David J. Noble
 
 
Name:
David J. Noble
 
 
Title:
Manager
 
 
 
 
 
STAR PROCUREMENT, LLC
 
 
 
By:
/s/ Stephen Clark
 
 
Name:
Stephen Clark
 
 
Title:
Manager
       
       
  KBS BUILDERS, INC.
       
  By:   /s/ Daniel M. Koch
    Name: Daniel M. Koch
    Title: President


























8







[Signature Page to Services Agreement]


9





SERVICE SCHEDULE

1.
Services.


KBS shall submit a Service Notice to the Company for ALL Building Materials required by KBS and is subsidiaries in the conduct of their respective businesses.

Subject to the Company’s right of first refusal set forth on Section 2.2 of the Agreement, the Company shall source and purchase from a supplier (the “ Materials Supplier ”) all Building Materials requested by KBS in Service Notices and arrange for such materials to be delivered directly to KBS or its subsidiaries, as directed.

For purposes of this Agreement, “ Building Materials ” shall mean any and all goods, products, raw materials and similar items used to manufacture, produce, construct and/or build modular building unites (including, but not limited to, single-family homes, apartment buildings, condominiums, and other commercial structures).

2.
Additional Terms Related to Services .

KBS shall bear the risk of loss of all Building Materials upon any transfer of such risk by the Materials Supplier, even if related Materials Purchase Amounts are unpaid. In no event shall the Company bear the risk of loss for any Building Materials.


Exhibit 10.2

 

SERVICES AGREEMENT
This SERVICES AGREEMENT (this “ Agreement ”), effective as of January 2, 2019 is entered into by and among STAR PROCUREMENT, LLC, a Delaware limited liability Company (the “ Company ”) and KBS Builders, Inc. a Delaware Corporation (“ KBS ”). The Company and KBS are sometimes are referred to in this Agreement collectively as the “ Parties ” and individually as a “ Party ”. Capitalized terms used in this Agreement but not otherwise defined in this Agreement will have the meanings set forth in the LLC Agreement (defined below).

RECITALS

WHEREAS, ATRM Holdings, Inc., a Minnesota corporation (“ ATRM ”) and Digirad Corporation, a Delaware corporation (“ Digirad ”) are the sole members of the Company, and together with the Company are parties to that certain Limited Liability Company Agreement of the Company dated the date hereof (the “ LLC Agreement ”); and

WHEREAS, the Company was formed for purposes of creating a joint venture in which the Company will purchase and sell building materials and related goods and entry into this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained in this Agreement, and intending to be legally bound hereby, the Parties agree as follows:

1.    DEFINITIONS
1.1     Services ” means the services, functions, and tasks to be provided by the Company to KBS pursuant to this Agreement as described in the Service Schedule, as such services, functions and tasks may be changed or supplemented pursuant to the terms of this Agreement.
1.2     Service Schedule ” means a Schedule to this Agreement, describing (among other things) the particular Services being provided and the timing for such Services.
2.
SERVICES
2.1    Performance of Services . Subject to the other terms and conditions of this Agreement, KBS hereby grants the Company the right of first refusal to provide the Services to KBS (and, as necessary, its subsidiaries) during the Term (defined below) in accordance with and subject to the terms and conditions of this Agreement. Upon the mutual written agreement of the Parties, the Parties may modify the Services described on the existing Service Schedule or add additional Services to be performed by the Company. The Company has no obligation to provide any services other than the Services.

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2.2    First Refusal Right . KBS shall provide written notice to the Company containing all of the terms and conditions of the required Services (a “ Service Notice ”), and the Company shall be entitled to provide such Services on such (or better) terms and conditions. If the Company intends to exercise its first refusal right, it must deliver to KBS a commitment (a “ Service Commitment ”) to do so as soon as practicable and in no event later than thirty (30) days after receipt of the Service Notice from KBS or its subsidiaries. If the Company fails to provide a Service Commitment within the 30-day period or waives its first refusal right prior to that time, then KBS will be free to obtain such Services from any third party. All Services to be provided by the Company pursuant to this Agreement shall be provided by the Company in its sole discretion.
2.3    Affiliates and Subcontractors . The Company may use personnel of its Affiliates, or engage, consistent with past practice, the services of third parties to provide or assist the Company (or its Affiliates) to provide the Services.
2.4    Standard of Performance . Notwithstanding anything to the contrary in this Agreement, KBS understands and agrees that the standard of performance to which the Company and its Affiliates will be accountable under this Agreement will be to achieve a comparable level of service as KBS achieved with respect to the Services during the twelve (12) months prior to the date hereof.
2.5    Additional Resources and Consents . Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to perform any Service if doing so would require the Company to violate any law or breach any contract by which the Company or its Affiliates are bound. In addition and without limiting the foregoing, if the Company reasonably believes that performance of a particular Service requires the Company to obtain any third-party licenses or consents, or any software, technology or other goods, services or materials not already in the Company’s possession, then the Company shall promptly inform KBS, and KBS shall cooperate with the Company to obtain such licenses, consents or other or items at KBS’s sole expense if so requested by KBS. If KBS does not agree to pay the costs associated with obtaining such licenses, consents or other items, the Company shall be under no obligation to obtain such licenses, consents or other or items.
2.6    Cooperation . In order to enable the Company to perform the Services, KBS shall provide the Company with such cooperation and assistance (including access to employees) as is reasonably necessary for the Company or its Affiliates or contractors to timely perform the Services, as well as such other cooperation and assistance as the Company reasonably requests in connection with the provision of the Services hereunder.
2.7    Employees. The Parties agree that the employees and contractors of the Company providing the Services are the employees and contractors of the Company alone, and are not the employees or contractors of KBS for any purpose whatsoever.

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3.
PAYMENT TERMS
3.1    Fees and Costs .
(a)     Unless otherwise set forth in the Service Schedule, KBS shall reimburse the Company, on a monthly basis in accordance with Section 0 , for the Company’s actual cost (excluding the Materials Purchase Amounts (defined below)) in providing the Services (the “ Service Fees ”).
(b)     Unless otherwise set forth in the Service Schedule, KBS shall pay the Company for all Building Materials, on a monthly basis in accordance with Section 0 , a purchase price equal to the full cost of Building Materials (as defined in the Service Schedule) (excluding any Service Fees) during such period, plus 3% of the cost of such Building Materials. The amount(s) payable pursuant to this Section 3.1(b) is referred to herein as the “ Materials Purchase Amount(s) .”
3.2    Invoicing and Payment . Each calendar month during the Term, the Company shall issue to KBS an invoice for the amount of the Service Fees and the Materials Purchase Amounts payable to Company for the Services rendered during that month. KBS shall pay the amount invoiced by the Company within thirty (30) days after receipt thereof. All payments made pursuant to this Section 3.2 must be made in U.S. Dollars, by wire transfer of immediately available funds to the bank account previously designated by the Company to KBS. The amount of any due but unpaid Service Fees and Materials Purchase Amounts shall bear interest from and including the due date of such fees to, and including, the date of payment at a rate per annum equal to 5%. Such interest shall be calculated daily on the basis of a 365-day year and the actual number of days elapsed, without compounding
3.3    Taxes . The fees for Services provided pursuant to this Agreement exclude all excise, sales, use, gross receipts, value added, goods and services or similar transaction or revenue-based taxes (excluding any income Taxes) applicable to the provision of the Services and imposed by any federal, state, or local taxing authority (such taxes, together with any applicable interest, penalties, or additions to tax imposed with respect to such taxes, “Taxes”), and KBS shall be responsible for payment of all such Taxes.
3.4    Expenses . Except as otherwise expressly provided in this Agreement, each Party shall bear its own costs and expenses incurred in the performance of this Agreement.
4.
PROPRIETARY RIGHTS . This Agreement and the performance of this Agreement will not affect the ownership of any intellectual property rights. No Party will gain, by virtue of this Agreement, any rights of ownership of any rights related to the intellectual property owned by any other Party.
5.
CONFIDENTIALITY . Each Party shall keep any confidential or proprietary information of the other Party acquired pursuant to or in connection with this Agreement strictly confidential.

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6.    INDEMNIFICATION; LIMITATIONS OF LIABILITY
6.1    Indemnification . Each Party agrees to protect, defend, indemnify and hold harmless each other Party from and against any and all losses, claims, suits and actions (whether threatened or pending) arising out of or related to any (a) breach of any covenant or obligation of such Party contained in this Agreement or (b) negligence or willful misconduct of such Party or its employees or agents in connection with the performance of the Services hereunder. The rights to indemnification hereunder shall be in addition to any rights to indemnification that a Party may have under the LLC Agreement.
7.
TERM AND TERMINATION
7.1    Term of Agreement . The term of this Agreement begins on the date hereof and will continue until terminated in accordance with the terms hereof (the “ Term ”) .
7.2    Termination of Service . This Agreement shall automatically terminate upon the dissolution and winding-up of the Company pursuant to the LLC Agreement, or upon the written agreement of all Parties to the termination of this Agreement or the Services. If a Party breaches this Agreement, the other Party may terminate upon 30 days prior written notice if such breach is not cured.
7.3    Effect of Termination . Upon expiration or termination of this Agreement for any reason, the Company shall no longer be obligated to provide the terminated Services, and KBS shall no longer be obligated to pay for such Services, except with respect to any Service Fees and Materials Purchase Amounts incurred up to the date of termination or expiration (all such fees, including any applicable late fees, will become immediately due and payable by KBS to the Company upon the effective date of such termination).
7.4    Survival . The following provisions of this Agreement will survive its termination or expiration: Sections 1, 3 (with respect to Services performed prior to termination or expiration ), 4, 5, 6, 7.3, 7.4 and 8 .
8.
MISCELLANEOUS .
8.1    Notices . Any and all notices, requests, demands or other communications required to be given pursuant to this Agreement by any Party shall be in writing and shall be validly given or made to the applicable Party if served personally, by overnight mail, by nationally recognized overnight courier or sent by electronic mail, receipt confirmed. If the notice, request, demand or other communications are served personally, service shall be conclusively deemed made at the time of service. If the notice, request, demand or other communications are sent by electronic mail, service shall be conclusively deemed made the first (1st) business day following successful transmission or upon confirmation of receipt from the recipient. If the notice, demand or other communications are given by overnight mail, service shall be conclusively deemed made one (1) business day after sent in the United States mail, addressed to the applicable Party to whom the notice, demand or other communication is to be given, and when received if delivered by hand or

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overnight courier service on any business day. Notices shall be provided to the following addresses (any of which may be changed upon like notice to the other Parties):
If to KBS to:
KBS BUILDERS, INC.
300 Park St.
South Paris, ME 04281
Attention: Matt Mosher
Telephone: (207) 744-0402
Fax: (207) 739-2223
Email: mmosher@kbs-homes.com

If to the Company to:

STAR PROCUREMENT, LLC
1048 Industrial Court
Suwanee, GA 30024
Attention: Matthew G. Molchan
Telephone: 858-726-1600
Fax: 858-726-1700
Email: Matt.Molchan@digirad.com

8.2    Assignment . No Party may assign this Agreement or its rights or obligations hereunder, in whole or in part, voluntarily or by operation of law, without the written consent of the other Party, and any attempted assignment without such consent shall be void and without legal effect.
8.3    Amendment and Modification; Waiver . This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
8.4    Entire Agreement . This Agreement (including the schedule attached hereto) constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
8.5    Counterparts . This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.

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A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
8.6    Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

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7





IN WITNESS WHEREOF, the undersigned have caused this Services Agreement to be executed by their duly authorized representatives as of the day and year first set written above.


 
STAR PROCUREMENT, LLC
 
 
 
By:
/s/ David J. Noble
 
 
Name:
David J. Noble
 
 
Title:
Manager
 
 
 
 
 
STAR PROCUREMENT, LLC
 
 
 
By:
/s/ Stephen Clark
 
 
Name:
Stephen Clark
 
 
Title:
Manager
       
       
  KBS BUILDERS, INC.
       
  By:   /s/ Daniel M. Koch
    Name: Daniel M. Koch
    Title: President


























8







[Signature Page to Services Agreement]


9





SERVICE SCHEDULE

1.
Services.


KBS shall submit a Service Notice to the Company for ALL Building Materials required by KBS and is subsidiaries in the conduct of their respective businesses.

Subject to the Company’s right of first refusal set forth on Section 2.2 of the Agreement, the Company shall source and purchase from a supplier (the “ Materials Supplier ”) all Building Materials requested by KBS in Service Notices and arrange for such materials to be delivered directly to KBS or its subsidiaries, as directed.

For purposes of this Agreement, “ Building Materials ” shall mean any and all goods, products, raw materials and similar items used to manufacture, produce, construct and/or build modular building unites (including, but not limited to, single-family homes, apartment buildings, condominiums, and other commercial structures).

2.
Additional Terms Related to Services .

KBS shall bear the risk of loss of all Building Materials upon any transfer of such risk by the Materials Supplier, even if related Materials Purchase Amounts are unpaid. In no event shall the Company bear the risk of loss for any Building Materials.

Exhibit 10.3

 

 

 

 

 


MEMBERSHIP INTEREST PURCHASE AGREEMENT

dated as of April 1, 2019

by and among

ATRM HOLDINGS, INC., a Minnesota corporation,

LONE STAR VALUE MANAGEMENT, LLC, a Connecticut limited liability company,

 

and


JEFFREY E. EBERWEIN

 

 

 

 

 

 

 

ARTICLE I   PURCHASE AND SALE 1
Section 1.1   Purchase and Sale of the Membership Interests 1
Section 1.2   Working Capital Adjustment 2
Section 1.3   Closing 2
ARTICLE II   REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE MEMBER 3
Section 2.1   Organization, Etc 3
Section 2.2   Capitalization 3
Section 2.3   Authority Relative to this Agreement 3
Section 2.4   Consents and Approvals; No Violations 4
Section 2.5   Financial Statements 4
Section 2.6   No Undisclosed Liabilities; Discharge of Obligations 4
Section 2.7   Compliance with Law 4
Section 2.8   Material Contracts 5
Section 2.9   Litigation 5
Section 2.10   Taxes 5
Section 2.11   Owned and Leased Properties 6
Section 2.12   Intellectual Property; Personal Information 7
Section 2.13   Insurance 7
Section 2.14   Environmental Laws 7
Section 2.15   Employee and Labor Matters 8
Section 2.16   Employee Plans 8
Section 2.17   Brokers and Finders 9
Section 2.18   Absence of Questionable Payments 9
Section 2.19   Books and Records 10
Section 2.20   Bank Accounts; Powers of Attorney 10
Section 2.21   Certain Transactions 10
ARTICLE III   REPRESENTATIONS AND WARRANTIES OF THE MEMBER 10
Section 3.1   Ownership of Membership Interests 10
Section 3.2   Authority Relative to this Agreement 11
Section 3.3   Consents and Approvals; No Violations 11
Section 3.4   Litigation 11
Section 3.5   Brokers and Finders 11
ARTICLE IV   REPRESENTATIONS AND WARRANTIES OF THE BUYER 11
Section 4.1   Corporate Organization, Etc 11
Section 4.2   Authority Relative to this Agreement 12

 

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Section 4.3   Consents and Approvals; No Violations 12
Section 4.4   Financial Statements 12
Section 4.5   Compliance with Law 12
Section 4.6   Litigation 13
Section 4.7   Brokers and Finders 13
Section 4.8   Insurance 13
Section 4.9   Environmental Laws 13
ARTICLE V   COVENANTS 13
Section 5.1   Public Announcements 13
Section 5.2   Tax Covenants 13
ARTICLE VI   INDEMNIFICATION 15
Section 6.1   Indemnification 15
ARTICLE VII   MISCELLANEOUS 17
Section 7.1   Entire Agreement; Binding Effect; Assignment 17
Section 7.2   Notices 17
Section 7.3   Governing Law; Waiver of Jury Trial 18
Section 7.4   Expenses 18
Section 7.5   Severability 18
Section 7.6   Specific Performance 19
Section 7.7   Counterparts 19
Section 7.8   Interpretation 19
Section 7.9   Amendment and Modification; Waiver 19
Section 7.10   Legal Counsel 20
Section 7.11   Definitions 20

 

 

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MEMBERSHIP INTEREST PURCHASE AGREEMENT

THIS MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “ Agreement ”), dated as of April 1, 2019, is by and among ATRM HOLDINGS, INC., a Minnesota corporation (the “ Buyer ”), LONE STAR VALUE MANAGEMENT, LLC, a Connecticut limited liability company (the “ Company ”), and JEFFREY E. EBERWEIN, the sole member of the Company (the “ Member ”).

RECITALS

WHEREAS, as of the date of this Agreement, 100% of the issued and outstanding membership interests of the Company (the “ Membership Interests ”) are owned by the Member;

WHEREAS, the parties desire to enter into this Agreement to provide for the acquisition by the Buyer of the Company through the purchase by the Buyer from the Member of all of the Membership Interests, effective as of January 1, 2019 for accounting purposes;

WHEREAS, the Buyer issued a promissory note dated December 17, 2018 in the principal amount of $300,000.00 for benefit of the Company in exchange for the same amount in cash, with any then accrued and unpaid interest and any other amounts payable under such note due and payable on November 30, 2020 (the “ Buyer Note ”);

WHEREAS, the Member currently serves as Chairman of the Buyer’s Board of Directors and directly owns 418,017 shares of the Buyer’s common stock (the “ Buyer Common Stock ”), or approximately 17% of the shares outstanding, and may be deemed to beneficially own (i) 374,561 shares of the Buyer’s 10.00% Series B Cumulative Preferred Stock (the “ Buyer Series B Stock ”) and unsecured promissory notes with aggregate principal and interest outstanding in the amount of $1,505,031 held by Lone Star Value Co-Invest I, LP (“ LSV Co-Invest I ”), and (ii) 222,577 shares of Buyer Series B Stock held by Lone Star Value Investors, LP (“ LSVI ”), due to the Member’s status as the general partner of LSVI and LSV Co-Invest I; and

WHEREAS, the Buyer’s entry into this Agreement and the consummation of the Contemplated Transactions (as defined below) were approved by the independent members of the Buyer’s Board of Directors.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE I
PURCHASE AND SALE

Section 1.1 Purchase and Sale of the Membership Interests . Upon the terms and subject to the conditions of this Agreement, the Member agrees to sell to the Buyer, and the Buyer agrees to purchase from the Member, all of the Membership Interests at the Closing (the “ Membership Interest Purchase ”), with such transaction deemed effective as of January 1, 2019 for accounting purposes. The aggregate purchase price for the Membership Interests shall be $100.00, subject to adjustment as provided in Section 1.2 .

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Section 1.2 Working Capital Adjustment .

(a) The Member has delivered to the Buyer a statement setting forth the Member’s determination of Working Capital as of immediately prior to January 1, 2019 (the “ Working Capital Statement ”), which Working Capital Statement contains all information reasonably necessary to determine Working Capital as of immediately prior to January 1, 2019, includes appropriate supporting documentation, and is certified by the Member to be true and correct. “ Working Capital ” shall mean the total current assets of the Company less than total current liabilities of the Company, each as determined in accordance with generally accepted accounting principles in the United States of America, consistently applied; provided, however, any accrued and unpaid interest and any other amounts payable under the Buyer Note shall be deemed to constitute a current asset of the Company to be reflected in the calculation of Working Capital.

(b) The Buyer shall give written notice to the Member of any objection to the Working Capital Statement (the “ Objection Notice ”) within thirty (30) days after the Closing Date. The Objection Notice shall specify in reasonable detail the items in the Working Capital Statement to which the Buyer objects and shall provide a summary of reasons for such objections. In the event the Buyer does not deliver the Objection Notice within such thirty (30) day period, the Member’s determination of Working Capital as set forth in the Working Capital Statement shall be deemed to be final and binding on the Buyer.

(c) The Buyer and the Member shall use good faith efforts to resolve any dispute involving any matter set forth in the Objection Notice. If the parties are unable to resolve any dispute involving any matter set forth in the Objection Notice within thirty (30) days after receipt by the Member thereof, such dispute shall be referred for decision to a nationally recognized independent accounting firm chosen by the Buyer and reasonably acceptable to the Member (the “ Accounting Firm ”) to decide the dispute within thirty (30) days of such referral. The scope of the Accounting Firm’s engagement shall be limited to the resolution of the disputed items described in the Objection Notice that the Member and the Buyer are unable to resolve, and the recalculation, if any, of the Working Capital in light of such resolution. The decision by the Accounting Firm with respect to such disputed items shall be final and binding on the Member and the Buyer and shall be based upon a review of any relevant books and records or other documents requested by the Accounting Firm. The cost of retaining the Accounting Firm shall be borne equally by the Member and the Buyer.

(d) If the Working Capital as of immediately prior to January 1, 2019, as finally determined in accordance with this Section 1.2 , is greater than $0.00, then the Buyer shall pay the difference to the Member by the later of (x) fifteen (15) days after its final determination and (y) June 30, 2019, by wire transfer of immediately available United States funds into such accounts as shall have been designated by the Member in writing to the Buyer. If the Working Capital as of immediately prior to January 1, 2019, as finally determined, is less than $0.00, then the Member shall pay the difference to the Buyer by the later of (x) fifteen (15) days after its final determination and (y) June 30, 2019, by wire transfer of immediately available United States funds into such account or accounts as shall have been designated by the Buyer in writing to the Member.

Section 1.3 Closing .

(a) Subject to the terms and conditions of this Agreement, the consummation of the Contemplated Transactions (the “ Closing ”) shall take place simultaneously with the execution and delivery of this Agreement, and the date and time of the completion of the foregoing shall be deemed the “ Closing Date ”. The Closing shall take place via the electronic exchange of documents and signatures. The Closing shall be deemed effective as of 11:59 p.m., Eastern Time, on the Closing Date.

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(b) At the Closing, the Member will deliver to the Buyer good and valid title to the Membership Interests, free and clear of all Encumbrances other than Permitted Liens (if any), together with an executed form of assignment for the Membership Interests in a form reasonably acceptable to the Buyer.

ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE MEMBER

Except as set forth in the Company’s disclosure schedule provided herewith (the “ Company Disclosure Schedule ”), the Company and the Member, jointly and severally, hereby represent and warrant to the Buyer, as of the date hereof and as of the Closing Date, except to the extent certain representations and warranties are limited to a certain date set forth in the applicable section, as follows:

Section 2.1 Organization, Etc. The Company is duly formed, validly existing and in good standing under the Laws of the State of Connecticut and has all requisite limited liability company power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties and assets. The Company is qualified to do business and is in good standing in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing would not, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect. True and complete copies of the organizational and governing documents of the Company as presently in effect have been heretofore made available to the Buyer. The Company is not in violation of any term or provision of its organizational or governing documents. The Company does not have, and has never had, any subsidiaries.

Section 2.2 Capitalization . The Member is the sole member of the Company and the owner of all outstanding Membership Interests. All outstanding Membership Interests were duly authorized, validly issued, fully paid and non-assessable, and issued free from preemptive rights and in compliance with all applicable securities Laws. There are no outstanding (a) securities convertible into or exchangeable for Membership Interests of the Company, (b) options, warrants or other rights to purchase or subscribe for securities of the Company, or (c) contracts, commitments, agreements, understandings or arrangements of any kind relating to the issuance of any securities of the Company, any such convertible or exchangeable securities or any such options, warrants or rights, pursuant to which, in any of the foregoing cases, the Company is subject or bound. There are no voting trusts, voting agreements, proxies, Membership Interest holders’ agreements or other similar instruments restricting or relating to the rights of the Member to vote, transfer or receive dividends with respect to any Membership Interests or with respect to the management or control of the Company.

Section 2.3 Authority Relative to this Agreement . The Company has all requisite limited liability company power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations thereunder and to consummate the Contemplated Transactions. The execution and delivery of the Transaction Documents to which it is a party, the performance of its obligations thereunder and the consummation of the Contemplated Transactions have been duly and validly authorized by all required limited liability company or other action on the part of the Company and no other limited liability company or other proceedings on the part of the Company are necessary to authorize the Transaction Documents to which it is a party or to consummate the Contemplated Transactions. This Agreement has been, and each of the other Transaction Documents to which it is a party will be, duly and validly executed and delivered by the Company and, assuming this Agreement has been, and each of the other Transaction Documents to which it is a party will be, duly authorized, executed and delivered by the other parties thereto, this Agreement constitutes, and each of the other Transaction Documents to which it is a party will constitute, a legal, valid and binding obligation of the Company, enforceable against it in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other Laws regarding fraudulent conveyances and preferential transfers and subject to the limitations imposed by general equitable principles (regardless whether such enforceability is considered in a proceeding at law or in equity) (collectively, the “ Bankruptcy and Equity Principles ”).

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Section 2.4 Consents and Approvals; No Violations . Except as set forth on Section 2.4 of the Company Disclosure Schedule, none of the execution or delivery of any of the Transaction Documents by the Company, the performance by the Company of any of its obligations thereunder, or the consummation of any of the Contemplated Transactions by the Company will (a) violate any provision of the organizational or governing documents of the Company, (b) require it to obtain or make any consent, waiver, approval, exemption, declaration, license, authorization or permit of, or registration or filing with or notification to, any federal, state, local or foreign government, executive official thereof, governmental, administrative or regulatory authority, agency, body or commission, including any court of competent jurisdiction, domestic or foreign (each, a “ Governmental Entity ”), (c) require a consent under, result in a violation or breach of, constitute (with or without notice or lapse of time or both) a default (or give rise to any right of termination, cancellation, amendment or acceleration or any obligation) under, or result in the creation of any Encumbrance on any of the properties or assets of the Company pursuant to, any of the terms, conditions or provisions of any Material Contract, except for any consents obtained prior to the Closing, or (d) violate any Law of any Governmental Entity applicable to the Company or by which the Company or any of its properties or assets is bound.

Section 2.5 Financial Statements . The Company has previously delivered or made available to the Buyer true and complete copies of the balance sheet of the Company as of June 30, 2018 and December 31, 2018 (collectively, the “ Company Balance Sheet ”). The Company Balance Sheet (A) has been prepared from, and is in accordance with, the books and records of the Company, and (B) fairly presents in all material respects the financial position of the Company as of the date thereof.

Section 2.6 No Undisclosed Liabilities; Discharge of Obligations . The Company has no outstanding liabilities, indebtedness or known, defined financial obligations over $5,000, except as and to the extent set forth, disclosed in, reflected in or otherwise described in the Company Balance Sheet or in Section 2.6 of the Company Disclosure Schedule. The Company has no indebtedness for borrowed money immediately prior to Closing.

Section 2.7 Compliance with Law .

(a) Except as set forth on Section 2.7 of the Company Disclosure Schedule, (i) neither the Company nor the Member nor, to the Knowledge of the Company, any officer, manager or employee of the Company, in such capacity, has received notice from any Governmental Entity of, or to the Knowledge of the Company, is charged or threatened with or under investigation with respect to, any violation of any provision of any applicable Law and (ii) the Company is, and has been for the past three (3) years, in compliance in all material respects with all Laws applicable to it or any of its businesses, properties or assets.

(b) The Company currently is not required to be registered as an investment adviser with the U.S. Securities and Exchange Commission (“ SEC ”), and is currently an exempt reporting advisor with the State of Connecticut reporting to the SEC.

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Section 2.8 Material Contracts .

(a) Section 2.8(a) of the Company Disclosure Schedule sets forth a list of all Contracts that are material to the Company to which it is a party or by which it or any of its properties or assets is bound, including, without limitation, (i) any employment Contract or other Contract for services that is not terminable at will without liability for any penalty or severance payment, (ii) any Contract involving annual payments or receipts by the Company of $25,000 or more, (iii) any Contract containing an exclusivity provision that restricts the Company’s business or any Contract limiting the Company’s freedom to compete in any line of business, in any geographic area or with any Person, and (iv) any Contract providing for the borrowing or lending of money or any guarantee except for those providing funds to Buyer or Buyer’s direct or indirect subsidiaries (collectively, the “ Material Contracts ”). The Company has made available to the Buyer true, correct and complete copies of all Material Contracts.

(b) Each of the Material Contracts constitutes the valid, legally binding and enforceable obligation of the Company and, to the Knowledge of the Company, each of the other parties thereto, except as may be limited by applicable Bankruptcy and Equity Principles. Each Material Contract is in full force and effect.

(c) The Company is not in breach or default in any material respect, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default by the Company or permit termination, modification or acceleration, of or under any of the Material Contracts and, to the Knowledge of the Company, no other party to any Material Contract is in breach or default in any material respect, and no event has occurred that with notice or lapse of time or both would constitute such a breach or default by such party, of or under any Material Contract. The Company has not received written notice of a claim against the Company by any party to a Material Contract in respect of any breach or default thereunder, except as otherwise described in Section 2.8(c) of the Company Disclosure Schedule.

(d) The Company has not received any impending or forthcoming notice of termination, cancellation, material reduction of services or non-renewal that is currently in effect with respect to any Material Contract and, to the Knowledge of the Company, no other party to a Material Contract plans to terminate, cancel or not renew, or materially reduce the services provided to it under, any such Material Contract.

Section 2.9 Litigation . Except as set forth on Section 2.7 of the Company Disclosure Schedule or otherwise previously disclosed in writing to the Buyer, there is no action, suit or proceeding pending or, to the Knowledge of the Company, threatened against the Company or any of its properties by or before any Governmental Entity. The Company is not subject to any outstanding injunction, writ, judgment, order or decree of any Governmental Entity. There is no action, suit or proceeding pending or, to Knowledge of the Company, threatened against any current or former officer, manager, employee or consultant of the Company in his or her capacity as such, except as otherwise disclosed in Section 2.9 of the Company Disclosure Schedule or otherwise previously disclosed in writing to the Buyer. There is no action, suit or proceeding pending or, to the Knowledge of the Company, threatened against the Company by or before any Governmental Entity that questions the validity of any of the Transaction Documents or any action to be taken in connection with the consummation of any of the Contemplated Transactions or would otherwise prevent or materially delay the consummation of any of the Contemplated Transactions.

Section 2.10 Taxes . Except as set forth in Section 2.10 of the Company Disclosure Schedule:

(a) The Company or the Member has:

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(i) duly and timely filed, or caused to be filed, in accordance with applicable Law all Company Tax Returns, each of which is true, correct and complete,

(ii) duly and timely paid in full, or caused to be paid in full, all Company Taxes (including but not limited to withholding, payroll and employment Taxes) due and payable (whether or not shown on any Company Tax Return) on or prior to the Closing Date, and

(iii) properly accrued on its books and records a provision for the payment of all Company Taxes that are due, are claimed to be due, or may or will become due with respect to any Pre-Closing Period or the portion ending on the Closing Date of any Straddle Period.

(b) There is no power of attorney in effect with respect or relating to any Company Tax or Company Tax Return.

(c) No audit, action, assessment, examination, hearing, inquiry or investigation is pending, or to the Knowledge of the Company, threatened or proposed with regard to any Company Tax or Company Tax Return.

(d) The statute of limitations applicable or relating to any Company Tax or any Company Tax Return has never been modified, extended or waived, nor has any request been made in writing for any such modification, extension or waiver.

(e) No jurisdiction where a Company Tax Return has not been filed or Company Tax has not been paid has made or, to the Knowledge of the Company, threatened to make a claim for the payment of any Company Tax or the filing of any Company Tax Return.

(f) The Company is and always has been treated as a disregarded entity for federal income tax purposes. The Company has never filed an entity classification election under Code Section 7701.

Section 2.11 Owned and Leased Properties .

(a) The Company owns no interest in any real property. Section 2.11 of the Company Disclosure Schedule contains a correct and complete description of all leases, licenses, permits, subleases and occupancy agreements or arrangements, together with any amendments thereto (each a “ Real Property Lease ” and collectively, the “ Real Property Leases ”), with respect to real property to which the Company is a party to, bound by or enjoys the benefits of (the “ Leased Real Property ”), including the address and a description of uses by the Company of the Leased Real Property.

(b) The Leased Real Property constitutes all of the land, buildings, structures, improvements, fixtures and other interests and rights in real property that are used or occupied by the Company in connection with the business of the Company.

(c) The Company does not have any oral or written agreement with any real estate broker, agent or finder with respect to the Leased Real Property.

(d) True, complete and accurate copies of the Real Property Leases have been provided to the Buyer and the Real Property Leases are listed in Section 2.11(d) of the Company Disclosure Schedule.

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(e) Each Real Property Lease is valid and binding on the Company and, to the Company’s Knowledge, each other party thereto, and is in full force and effect. Except as set forth in Section 2.11(e) of the Company Disclosure Schedule, the Company has not assigned, transferred, conveyed, mortgaged, deeded in trust or encumbered any interest in any Real Property Lease, subleased all or any part of the space demised thereby, or granted any right to the possession, use, occupancy or enjoyment of any Leased Real Property, to any third party. No option has been exercised under any of such Real Property Leases, except options whose exercise has been evidenced by a written document, a true, correct and complete copy of which has been made available to Buyer with the corresponding Real Property Lease. No Real Property Lease will cease to be legal, valid, binding, enforceable and in full force and effect on terms identical to those currently in effect or require consent or notice solely as a result of the consummation of any of the Contemplated Transactions, nor will the consummation of any such transactions constitute a breach or default under any such Real Property Lease or otherwise give the landlord a right to terminate such Real Property Lease. The Company has not received any written notice that it has violated any Law applicable to the operation of the Leased Real Property or any covenant, condition, easement or restriction of record affecting any of the Leased Real Property. All brokerage commissions and other compensation and fees payable by the Company by reason of the Real Property Leases, if any, have been paid in full, and to the Company’s Knowledge, all brokerage commissions and other compensation and fees payable by any other Persons by reason of the Real Property Leases have been paid in full.

Section 2.12 Intellectual Property; Personal Information .

(a) There is no Intellectual Property owned or used by the Company that is material to the Company’s business as currently being conducted. Immediately following the Closing Date, Company will continue to have, and will be permitted to exercise all of Company’s rights under, and will have the same rights with respect to, all Intellectual Property necessary to enable the Company to conduct its business to the same extent Company would have had, and been able to exercise, had the Contemplated Transactions not occurred.

(b) To the Knowledge of the Company, there is no unauthorized use, disclosure, infringement or misappropriation of any Intellectual Property of the Company by any third party. The Company has not received any notice or other communication (in writing or otherwise) of any actual, alleged, possible or potential infringement, misappropriation or unlawful use of, and, to the Knowledge of the Company, the Company is not infringing, misappropriating or making unlawful use of, any Intellectual Property owned by any third party.  There are no actions, suits or proceedings that are pending or, to the Knowledge of the Company, threatened against the Company with respect to any infringement, misappropriation or unlawful use of any Intellectual Property owned or used by any third party.

Section 2.13 Insurance . The Company’s liability insurance policies are listed on Section 2.13 of the Company Disclosure Schedule. True, complete and accurate copies of the Company’s insurance policies have been provided to the Buyer. There are no pending claims under any of such policies.

Section 2.14 Environmental Laws . To the Knowledge of the Company, the Company (i) is in material compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety or the environment and with respect to hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”), (ii) has received all material permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business, if any, and (iii) is in material compliance with all terms and conditions of any such permit, license or approval, if any, except where, in each of the three foregoing clauses, the failure to so comply or receive such approvals could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

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Section 2.15 Employee and Labor Matters . The Company is not a party to any collective bargaining or other labor union Contract applicable to Persons employed by it, no collective bargaining agreement is being negotiated by the Company, and, to the Knowledge of the Company, there are no activities or proceedings of any labor union to organize any of the employees of the Company. Except as set forth in Section 2.15 of the Company Disclosure Schedule, (a) the Company is in compliance in all material respects with all applicable Laws relating to employment and employment practices, wages, hours, occupational safety, health standards, severance payments, equal opportunity, payment of social security, national insurance and other Taxes, and terms and conditions of employment, (b) there are no charges with respect to or relating to the Company, or to the Knowledge of the Company, threatened by or before any Governmental Entity responsible for the prevention of unlawful or discriminatory employment practices or unfair labor practices, and (c) there is no strike, work stoppage, work slowdown, lockout, picketing, concerted refusal to work overtime, or other similar labor activity pending or, to the Knowledge of the Company, threatened against or involving the Company or within the last three years. All sums due for employee, consultant and independent contractor compensation and benefits, including pension and severance benefits, and all vacation time owing to any employees of the Company have been duly and adequately accrued on the accounting records of the Company. Except to the extent a failure to correctly characterize or treat would not result in material liability to the Company, all individuals characterized and treated by the Company as consultants or independent contractors are properly treated as independent contractors under all applicable Laws. Except to the extent a failure to correctly classify would not result in material liability to the Company, all employees of the Company classified as exempt under the Fair Labor Standards Act and state and local wage and hour Laws are properly classified.

Section 2.16 Employee Plans .

(a) Section 2.16(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of:

(i) all “employee benefit plans,” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), with respect to which the Company has any obligation or liability, contingent or otherwise (the “ Benefit Plans ”);

(ii) all current managers and officers of the Company; and

(iii) all employment, consulting, termination, profit sharing, severance, change of control, individual compensation and indemnification agreements, and all bonus and other incentive compensation, deferred compensation, salary continuation, disability, severance, equity award, option, equity purchase, educational assistance, legal assistance, club membership, employee discount, employee loan, credit union and vacation agreements, policies and arrangements under which the Company has any obligation or liability (contingent or otherwise) in respect of any current or former officer, manager, employee, consultant or contractor of the Company (the “ Employee Arrangements ”), other than as previously provided to the Buyer in writing.

(b) If applicable, in respect of each Benefit Plan and Employee Arrangement, a complete and correct copy of each of the following documents (if applicable) has been made available to the Buyer: (i) the most recent plan and related trust documents, and all amendments thereto; (ii) the most recent summary plan description, and all related summaries of material modifications thereto; (iii) the most recent Form 5500 (including schedules and attachments); and (iv) each written Employee Arrangement, and all amendments thereto. The Company does not maintain any qualified retirement plans.

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(c) If applicable, all premium payments required to have been made by the Company have been timely and properly made or accrued.

(d) If applicable, the Benefit Plans and Employee Arrangements have been maintained and administered in accordance with their terms and applicable Laws in all material respects; unless otherwise disclosed within Section 2.16(d) of the Company Disclosure Schedule.

(e) Except as set forth on Section 2.16(e) of the Company Disclosure Schedule or otherwise previously disclosed in writing to the Buyer, there are no pending or, to the Knowledge of the Company, threatened actions, claims, suits or proceedings against or relating to any Benefit Plan or Employee Arrangement (other than routine benefit claims by persons entitled to benefits thereunder) and, to the Knowledge of the Company, there are no facts or circumstances which could reasonably be expected to form the basis for any of the foregoing.

(f) Except as set forth on Section 2.16(f) of the Company Disclosure Schedule, the Company has no obligation or liability (contingent or otherwise) to provide post-retirement life insurance or health benefits coverage for current or former officers, managers, employees, consultants or contractors except (i) as may be required under Part 6 of Title I of ERISA, (ii) a medical expense reimbursement account plan pursuant to Section 125 of the Code, or (iii) through the last day of the calendar month in which the participant terminates employment.

(g) None of the assets of any Benefit Plan is equity of the Company.

(h) Except as set forth on Section 2.16(h) of the Company Disclosure Schedule, neither the execution and delivery of any of the Transaction Documents nor the consummation of any of the Contemplated Transactions will (i) result in any payment becoming due to any manager, officer, employee, consultant or contractor (current, former or retired) of the Company, (ii) increase any benefits under any Benefit Plan or Employee Arrangement or (iii) result in the acceleration of the time of payment of, vesting of, or other rights in respect of any such benefits (except as may be required by the partial or full termination of any Benefit Plan intended to be qualified under Section 401 of the Code). No Benefit Plan or Employee Arrangement in effect immediately prior to the Closing Date would result, individually or in the aggregate (including as a result of this Agreement, any of the Transaction Documents or any of the Contemplated Transactions), in the payment of any “excess parachute payment” within the meaning of Section 280G of the Code.

(i) The Company has not entered into any non-qualified deferred compensation plan or arrangement with any employee or service provider.

Section 2.17 Brokers and Finders . Neither of the Company nor any of its Representatives has employed any investment banker, broker or finder or incurred any liability for any investment banking fees, brokerage fees, commissions or finders’ fees in connection with any of the Contemplated Transactions for which the Buyer would be liable.

Section 2.18 Absence of Questionable Payments . None of the Company or, to the Knowledge of the Company, the Member, manager, officer, employee, consultant or other Person acting on behalf of the Company has (a) used any funds for unlawful contributions, payments, gifts or expenditures, (b) made any unlawful expenditures of funds relating to political activity to government officials or others or (c) established or maintained any unlawful or unrecorded funds in violation of the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable domestic or foreign Law. None of the Company or, to the Knowledge of the Company, any manager, officer, employee, consultant or other Person acting on behalf of the Company has offered, paid or agreed to pay to any Person (including any governmental official), or solicited, received or agreed to receive from any such Person, directly or indirectly, any unlawful contributions, payments, gifts, expenditures, money or anything of value for the purpose or with the intent of (a) obtaining or maintaining business for the Company, (b) facilitating the purchase or sale of any product or service, or (c) avoiding the imposition of any fine or penalty.

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Section 2.19 Books and Records . Except as set forth on Section 2.19 of the Company Disclosure Schedule, the books of account and other books and records of the Company are complete and accurate in all material respects and have been maintained in accordance with sound business practice, applicable requirements of Law. Except as set forth on Section 2.19 of the Company Disclosure Schedule, the Company has (a) provided Buyer and its authorized Representatives reasonable access to all personnel, books, records (including information related to financial, legal, environmental, regulatory and employee benefits matters), offices and other facilities and properties of the Company as the Buyer may have reasonably requested, (b) permitted the Buyer and its authorized Representatives to make such inspections thereof as the Buyer reasonably requested, and (c) furnished the Buyer with such financial and operating data and other information with respect to the business and operations of the Company as the Buyer may have reasonably requested.

Section 2.20 Bank Accounts; Powers of Attorney . Section 2.20 of the Company Disclosure Schedule sets forth a true, complete and correct list showing: (a) all banks in which the Company maintains a bank account or safe deposit box (collectively, “ Bank Accounts ”), together with, as to each such Bank Account, the type of account, and the names of all signatories thereof ; and (b) the names of all Persons holding powers of attorney from the Company. The account numbers for all Bank Accounts were provided to the Buyer prior to Closing.

Section 2.21 Certain Transactions . Except as set forth on Section 2.21 of the Company Disclosure Schedule, neither the Member nor any of his Affiliates or any member of his immediate family (for this purpose, “immediate family” means such Person’s spouse, parents, children and siblings) is presently a party to any Contract or transaction with the Company, including without limitation, any Contract (a) providing for the furnishing of services by, (b) providing for the rental of real or personal property from, or (c) otherwise requiring payments to (other than for services in the foregoing capacities) any such Person or any corporation, partnership, trust or other entity in which any such Person has a substantial interest as a member, officer, manager, trustee or partner, and no such Person owns directly or indirectly any interest in (excluding passive investments in less than 1% of the shares of any company that lists its shares on a national securities exchange), or serves as an officer or manager or in another similar capacity of, any competitor or customer of the Company or any organization that has a Material Contract with the Company.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE MEMBER

Except as set forth in the Company Disclosure Schedule, the Member hereby represents and warrants to Buyer, as of the date hereof, except to the extent certain representations and warranties are limited to a certain date set forth in the applicable section, as follows:

Section 3.1 Ownership of Membership Interests . The Member owns all of the Membership Interests free and clear of all Encumbrances except for any Permitted Liens, and, as a result of the Membership Interest Purchase, the Buyer will acquire good, valid and marketable title to such Membership Interests free and clear of all Encumbrances.

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Section 3.2 Authority Relative to this Agreement . The Member has all requisite right, power and authority to execute and deliver the Transaction Documents to which he is a party, to perform his obligations thereunder and to consummate the Contemplated Transactions. This Agreement has been, and each of the other Transaction Documents to which the Member is a party will be, duly and validly executed and delivered by the Member and, assuming this Agreement has been, and each of the other Transaction Documents to which the Member is a party will be, duly authorized, executed and delivered by the other parties thereto, this Agreement constitutes, and each of the other Transaction Documents to which the Member is a party will constitute, a legal, valid and binding obligation of the Member, enforceable against the Member in accordance with their respective terms, except as limited by applicable Bankruptcy and Equity Principles.

Section 3.3 Consents and Approvals; No Violations . None of the execution or delivery of any of the Transaction Documents by the Member, the performance by the Member of its obligations thereunder, or the consummation of any of the Contemplated Transactions by the Member will (a) require the Member to obtain or make any consent, waiver, approval, exemption, declaration, license, authorization or permit of, or registration or filing with or notification to, any Governmental Entity, (b) require a consent under, result in a material violation or material breach of, constitute (with or without notice or lapse of time or both) a material default (or give rise to any right of termination, cancellation, amendment or acceleration or any obligation) under, or result in the creation of any Encumbrance on any of the properties or assets of the Member pursuant to, any of the terms, conditions or provisions of any Contract to which the Member is a party or by which the Member or any of his properties or assets is bound, except for any consents obtained prior to the Closing, or (c) violate any Law of any Governmental Entity applicable to the Member or by which he or any of his properties or assets is bound.

Section 3.4 Litigation . There is no action, suit or proceeding pending or, to the Knowledge of the Member, threatened against the Member by or before any Governmental Entity that questions the validity of any of the Transaction Documents or any action to be taken in connection with the consummation of any of the Contemplated Transactions or would otherwise prevent or materially delay the consummation of any of the Contemplated Transactions.

Section 3.5 Brokers and Finders . The Member has not employed any investment banker, broker or finder or incurred any liability for any investment banking fees, brokerage fees, commissions or finders’ fees in connection with any of the Contemplated Transactions for which the Buyer or the Company would be liable.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER

Except as set forth in the Buyer’s disclosure schedule provided herewith (the “ Buyer Disclosure Schedule ”), the Buyer hereby represents and warrants to the Company and the Member, as of the date hereof and as of the Closing Date, except to the extent certain representations and warranties are limited to a certain date set forth in the applicable section, as follows:

Section 4.1 Corporate Organization, Etc. The Buyer is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Minnesota and has all requisite corporate power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties and assets. The Buyer is qualified to do business as a foreign corporation and is in good standing (to the extent such concept is recognized) in each jurisdiction in which the ownership of its properties or the conduct of its business requires such qualification, except where the failure to be so qualified or in good standing (if applicable) would not, individually or in the aggregate, could not reasonably be expected to have a Buyer Material Adverse Effect. True and complete copies of the organizational and governing documents of the Buyer as presently in effect have been heretofore made available to the Company. The Buyer is not in violation of any term or provision of its organizational or governing documents. The Company is to become a separate and independent direct subsidiary of the Buyer upon the Closing.

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Section 4.2 Authority Relative to this Agreement . The Buyer has all requisite power and authority to execute and deliver the Transaction Documents to which it is a party, to perform its obligations thereunder and to consummate the Contemplated Transactions. The execution and delivery of the Transaction Documents to which it is a party, the performance of its obligations thereunder and the consummation of the Contemplated Transactions, including, without limitation, the Membership Interest Purchase, have been duly and validly authorized by all required corporate or other action on the part of the Buyer, and no other corporate or other proceedings on the part of the Buyer are necessary to authorize the Transaction Documents to which it is a party or to consummate the Contemplated Transactions. This Agreement has been, and each of the other Transaction Documents to which it is a party will be, duly and validly executed and delivered by the Buyer and, assuming this Agreement has been, and each of the other Transaction Documents to which it is a party will be, duly authorized, executed and delivered by the other parties thereto, this Agreement constitutes, and each of the other Transaction Documents to which it is a party will constitute, a legal, valid and binding obligation of the Buyer, enforceable against it in accordance with their respective terms, except as limited by applicable Bankruptcy and Equity Principles.

Section 4.3 Consents and Approvals; No Violations . None of the execution or delivery of any of the Transaction Documents by the Buyer, the performance by the Buyer of any of its obligations thereunder, or the consummation of any of the Contemplated Transactions by the Buyer will (a) violate any provision of the organizational or governing documents of the Buyer, (b) require it to obtain or make any consent, waiver, approval, exemption, declaration, license, authorization or permit of, or registration or filing with or notification to, any Governmental Entity, (c) require a consent under, result in a material violation or material breach of, constitute (with or without notice or lapse of time or both) a material default (or give rise to any right of termination, cancellation, amendment or acceleration or any obligation) under, or result in the creation of any Encumbrance on any of the properties or assets of the Buyer pursuant to, any of the terms, conditions or provisions of any material Contract to which the Buyer is a party or by which the Buyer or any of its properties or assets is bound, except for any consents obtained prior to the Closing, (d) violate any Law of any Governmental Entity applicable to the Buyer or by which the Buyer or any of its properties or assets is bound or (e) require the Buyer to obtain the approval of any holders of its capital stock by Law, the Buyer’s articles of incorporation or bylaws or otherwise in order for the Buyer to consummate the Membership Interest Purchase and the Contemplated Transactions.

Section 4.4 Financial Statements . The Buyer has previously delivered or made available to the Company a true and complete copy of the Buyer’s unaudited consolidated balance sheet as of September 30, 2018 (the “ Buyer Balance Sheet ”). The Buyer Balance Sheet (A) has been prepared from, and is in accordance with, the books and records of the Buyer, and (B) fairly presents in all material respects the financial position of the Buyer as of the date thereof.

Section 4.5 Compliance with Law . Except for the Buyer’s delinquent periodic reports required to be filed with the SEC, (i) neither the Buyer nor subsidiaries of the Buyer nor, to the Knowledge of the Buyer, any officer, manager or employee of the Buyer, in such capacity, has received notice from any Governmental Entity of, or to the Knowledge of the Buyer, is charged or threatened with or under investigation with respect to, any violation of any provision of any applicable Law and (ii) the Buyer and the Buyer’s subsidiaries are, and have been for the past three (3) years, in compliance in all material respects with all Laws applicable to it or any of its businesses, properties or assets.

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Section 4.6 Litigation . Except as disclosed in the Buyer’s periodic reports filed with the SEC, there is no action, suit, proceeding or investigation pending or, to the Knowledge of the Buyer, threatened against the Buyer or any of their respective properties by or before any Governmental Entity. The Buyer is not subject to any outstanding injunction, writ, judgment, order or decree of any Governmental Entity. There is no action, suit or proceeding pending or, to the Knowledge of the Buyer, threatened against the Buyer by or before any Governmental Entity that questions the validity of any of the Transaction Documents or any action to be taken in connection with the consummation of any of the Contemplated Transactions or would otherwise prevent or materially delay the consummation of any of the Contemplated Transactions.

Section 4.7 Brokers and Finders . The Buyer has not employed any investment banker, broker or finder or incurred any liability for any investment banking fees, brokerage fees, commissions or finders’ fees in connection with any of the Contemplated Transactions for which either the Company or the Member would be liable.

Section 4.8 Insurance . The Buyer’s director’s and officer’s insurance policies are listed on Section 4.8 of the Buyer Disclosure Schedule. True, complete and accurate copies of such policies have been provided to the Company. There are no pending claims under any of such policies.

Section 4.9 Environmental Laws . To the Knowledge of the Buyer, the Buyer (i) is in material compliance with any and all applicable Environmental Laws, (ii) has received all material permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its business, if any, and (iii) is in material compliance with all terms and conditions of any such permit, license or approval, if any, except where, in each of the three foregoing clauses, the failure to so comply or receive such approvals could not reasonably be expected to have, individually or in the aggregate, a Buyer Material Adverse Effect.

ARTICLE V
COVENANTS

Section 5.1 Public Announcements . The Buyer, on the one hand, and the Company and the Member, on the other hand, will consult with one another before issuing any press release or otherwise making any public statements in respect of this Agreement or any of the Contemplated Transactions, including the Membership Interest Purchase, and will not issue any such press release or make any such public statement without the prior written consent of the other party; provided , however , that any party may at any time make disclosures regarding the Contemplated Transactions if it is advised by legal counsel that such disclosure is required under applicable Law or by a Governmental Entity or any listing agreement with a public securities exchange, in which case the disclosing party will (a) consult with the other parties hereto prior to such disclosure, and (b) seek confidential treatment for such portions of such disclosure as are reasonably requested by any other party hereto.

Section 5.2 Tax Covenants .

(a) To the extent permitted under applicable Law, the Company shall close or terminate (or cause to be closed or terminated), as of the close of business on the Closing Date, each Tax period relating to any Company Tax or Company Tax Return.

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(b) The Buyer shall prepare and file each Company Tax Return that is due after the Closing Date and relates to a Pre-Closing Period or a Straddle Period in accordance with applicable Law. At least twenty (20) days prior to the date on which any such Company Tax Return is due (after taking into account any valid extension), the Buyer will deliver such Company Tax Return to the Member. No later than fifteen (15) days prior to the date on which such Company Tax Return is due (after taking into account any valid extension), the Member may make reasonable changes and revisions to such Company Tax Return. The Buyer shall cooperate fully in making any reasonable changes and revisions to such Company Tax Return. At least three (3) days prior to the date on which such Company Tax Return (as reasonably revised by a Member) is due (after taking into account any valid extension), the Member shall pay to the Buyer an amount equal to the Company Tax on such Company Tax Return to the extent such Company Tax relates, as determined under Section 5.2(c) , to a Pre-Closing Period (except to the extent such Company Taxes were taken into account in the determination of Working Capital).

(c) In the case of a Company Tax payable for a Straddle Period, the portion of such Company Tax that relates to the portion of the Straddle Period ending on the Closing Date will (i) in the case of a Tax other than a Tax based upon or related to income, employment, sales or other transactions, franchise or receipts, be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction the numerator of which is the number of days in the portion of the Straddle Period ending on the Closing Date and the denominator of which is the number of all of the days in the Straddle Period; and (ii) in the case of a Tax based upon or related to income, employment, sales or other transactions, franchise or receipts, be deemed equal to the amount that would be payable if the Straddle Period ended on the Closing Date and such Tax was based on an interim closing of the books as of the close of business on the Closing Date.

(d) Each party will promptly forward to the other a copy of all written communications from any Governmental Entity relating to any Company Tax or Company Tax Return for a Pre-Closing Period or Straddle Period. Upon reasonable request, each party will make available to the other all information, records and other documents relating to any Company Tax or any Company Tax Return for a Pre-Closing Period or Straddle Period. The parties will preserve all information, records and other documents relating to a Company Tax or a Company Tax Return for a Pre-Closing Period or Straddle Period until the date that is six (6) months after the expiration of the statute of limitations applicable to the Company Tax or the Company Tax Return. Prior to transferring, destroying or discarding any information, records or documents relating to any Company Tax or any Company Tax Return for a Pre-Closing Period or Straddle Period, the Company and the Member, as applicable, will give to Buyer reasonable written notice and, to the extent Buyer so requests, the Company and the Member, as applicable, will permit Buyer to take possession of all such information, records and documents. In addition, the parties will cooperate with each other in connection with all matters relating to the preparation of any Company Tax Return or the payment of any Company Tax for a Pre-Closing Period or Straddle Period and in connection with any audit, action, suit, claim or proceeding relating to any such Company Tax or Company Tax Return, and Buyer will have the right to control any such audit, action, suit, claim or proceeding. Nothing in this Section 5.2(d) will affect or limit any indemnity or similar provision or any representations, warranties or obligations of any of the parties. Each party will bear its own costs and expenses in complying with the provisions of this Section 5.2(d) .

(e) Buyer, on the one hand, and the Member, on the other hand, shall each be liable for and each shall pay when due fifty percent (50%) of all transfer taxes incurred in connection with this Agreement or any of the Contemplated Transactions (“ Transfer Taxes ”). The party as determined and communicated by Buyer required by any legal requirement to file a Tax Return or other documentation with respect to such Transfer Taxes shall do so within the time period prescribed by Law, and the other party shall promptly reimburse such party for any Transfer Taxes for which the other party is responsible upon receipt of notice that such Transfer Taxes are payable. To the extent permitted by any applicable legal requirement, the parties hereto shall cooperate in taking reasonable steps to minimize any Transfer Taxes.

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(f) None of the Member or the Company shall make or request a refund of any Company Tax or with respect to any Company Tax Return or amend any Company Tax Return, unless the Buyer, at its sole discretion, consents in writing thereto. The Buyer shall not be obligated to seek or request any refund of any Company Tax or amend any Company Tax Return; provided that the Buyer shall pay to the Member any refund or credit of Company Taxes with respect to a Pre-Closing Period (including any interest thereon).

(g) Each of the Company and the Member shall terminate or cause to be terminated any Tax sharing or similar agreement with respect to or involving the Company as of the Closing Date, without liability to any party, and any further effect for any year (whether the current year, a future year or a past year) or with respect to any Post-Closing Period. Any amounts payable under any Tax sharing or similar agreement will be cancelled as of the Closing Date, without any liability to the Company.

(h) The Buyer and the Member hereby acknowledge and agree that the purchase and sale of Membership Interests contemplated by this Agreement is intended to be treated as a sale of the Company’s assets for U.S. federal income tax purposes. The Buyer and the Member further agree not to take any action or position that is inconsistent with such treatment unless otherwise required to do so by applicable Law.

(i) In accordance with Section 5.2(h) , the Member shall prepare an allocation of the purchase price (together with all other items treated as consideration for U.S. federal income tax purposes) among the Company’s assets in accordance with Section 1060 and the Treasury regulations thereunder (and any similar provision of state, local, or non-U.S. law, as appropriate) (the “ Allocation ”). The Allocation, as finally determined (and subject to any further amendment in accordance with Section 1.2 ) (the “ Final Allocation ”), shall be binding upon the Member, the Buyer and the Company. The Member, the Buyer and the Company shall report, act, and file all Tax Returns (including, but not limited to Internal Revenue Service Form 8594) in all respects and for all purposes consistent with the Final Allocation prepared by the Member. Neither the Member, the Buyer nor the Company shall take any action or position that is inconsistent with the Final Allocation unless otherwise required to do so by applicable Law.

ARTICLE VI
INDEMNIFICATION

Section 6.1 Indemnification .

(a) Indemnification by the Member . Subject to the other terms of this Section 6.1 , the Member will defend, indemnify and hold harmless the Buyer and its Representatives (collectively, the “ Buyer Indemnified Parties ”) from and against and in respect of any and all losses, liabilities, obligations, claims, actions, damages, judgments, penalties, fines, settlements and expenses, including reasonable attorneys’ fees (collectively, “ Losses ”), incurred by any of the Buyer Indemnified Parties arising out of, based upon or related to (i) any inaccuracy or breach of any of the representations or warranties made by either the Company or the Member in this Agreement, (ii) any breach of or failure to comply with any covenant or agreement made by either the Company or the Member in this Agreement (except that as to the Company, only with respect to any breach prior to Closing), (iii) any Company Taxes for any Pre-Closing Period (except to the extent such Company Taxes were taken into account in the determination of Working Capital) or (iv) any matters described in Section 2.7 or Section 2.9 of the Company Disclosure Schedule, or any other action, suit, proceeding or investigation relating to periods prior to the Closing.

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(b) Indemnification by the Buyer . Subject to the other terms of this Section 6.1 , the Buyer will defend, indemnify and hold harmless the Member and each of his Representatives (collectively, the “ Member Indemnified Parties ”) from and against and in respect of any and all Losses incurred by any of the Member Indemnified Parties arising out of, based upon or related to (i) any inaccuracy or breach of any of the representations or warranties made by the Buyer in this Agreement, or (ii) any breach of or failure to comply with any covenant or agreement made by the Buyer in this Agreement.

(c) Indemnification Procedure .

(i) The Person seeking indemnification under this Section 6.1 (the “ Indemnified Party ”) shall give to the party(ies) from whom indemnification is sought (the “ Indemnifying Party ”) prompt written notice of any third-party claim which may give rise to any indemnity obligation under this Section 6.1 , and the Indemnifying Party will have the right to assume the defense of any such claim through counsel of its own choosing, by so notifying the Indemnified Party within ten (10) days of receipt of the Indemnified Party’s written notice; provided , however , that such counsel shall be reasonably satisfactory to the Indemnified Party. Failure of the Indemnified Party to give prompt notice shall not affect the Indemnifying Party’s indemnification obligations hereunder except to the extent the Indemnifying Party is materially prejudiced by such failure. If the Indemnified Party desires to participate in any such defense assumed by the Indemnifying Party, it may do so at its sole cost and expense; provided , however , that the Indemnified Party will be entitled to participate in any such defense with separate counsel at the expense of the Indemnifying Party if, in the reasonable judgment of counsel to the Indemnified Party, a conflict or potential conflict exists, or there are separate or additional defenses available to the Indemnified Party, that would make such separate representation advisable. If the Indemnifying Party declines to assume any such defense or fails to diligently pursue any such defense, then the Indemnifying Party will be liable for all reasonable costs and expenses incurred by the Indemnified Party in connection with investigating, defending, settling and/or otherwise dealing with such claim, including reasonable fees and disbursements of counsel. The parties hereto agree to cooperate with each other in connection with the defense of any such claim. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, settle, compromise, or consent to the entry of any judgment with respect to any such claim, unless such settlement, compromise or judgment (A) does not result in the imposition of a consent order, injunction or decree that would restrict the future activity or conduct of the Indemnified Party or any Affiliate thereof, (B) does not involve any remedies other than monetary damages, and (C) includes an unconditional release of the Indemnified Party and its Affiliates for all liability arising out of such claim and any related claim. The Indemnified Party will not, without the prior written consent of the Indemnifying Party, which will not be unreasonably withheld, delayed or conditioned, settle, compromise, or consent to the entry of any judgment with respect to any such claim.

(ii) If an indemnification claim by any Indemnified Party is not disputed by the Indemnifying Party within thirty (30) days after the Indemnifying Party’s having received written notice thereof, or has been resolved by a Law of a Governmental Entity, by a settlement of the indemnification claim in accordance with Section 6.1(c)(i) or by agreement of the Indemnified Party and the Indemnifying Party (any of the foregoing, a “ Resolution ”), then (A) in the case of indemnification under Section 6.1(b) , the Member will deliver evidence of such Resolution to the Buyer, whereupon the Buyer will pay to the Member Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Member Indemnified Party as set forth in such Resolution, or (B) in the case of indemnification under Section 6.1(a) , the Buyer will deliver evidence of such Resolution to the Member, whereupon the Member will pay to the Buyer Indemnified Party promptly following such Resolution an amount in cash equal to the Losses of such Buyer Indemnified Party as set forth in such Resolution.

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(d) Limitations . The foregoing indemnification obligations will survive the consummation of the Membership Interest Purchase for a period of eighteen (18) months following the Closing Date; provided , however , that the right to indemnification arising out of, based upon or related to any inaccuracy or breach of any of the representations or warranties contained in Sections 2.1 (Organization, Etc.) , 2.2 (Capitalization) , 2.3 (Authority Relative to this Agreement) , 2.4 (Consents and Approvals; No Violations) , 2.10 (Taxes) , 2.12 (Intellectual Property; Personal Information) , 2.16 (Employee Plans) , 2.17 (Brokers and Finders) , 3.1 (Ownership of Membership Interests) , 3.2 (Authority Relative to this Agreement) , 3.3 (Consents and Approvals; No Violations) , 3.5 (Brokers and Finders) , 4.1 (Corporate Organization, Etc.) , 4.2 (Authority Relative to this Agreement) , 4.3 (Consents and Approvals; No Violations) , 4.5 (Brokers and Finders) , subsection (b) of Section 2.7 , and the first sentence of Section 2.11(a) (collectively, the “ Fundamental Representations ”) or arising under Section 6.1(a)(iii-iv) will survive the Closing until 60 days after the expiration of the statute of limitations for any claim thereunder relating to the matters covered by the applicable Fundamental Representation, including any extensions thereof, or, if no statute of limitations is applicable thereto, for a period of six (6) years after the Closing Date; and provided , further , that claims first asserted in writing within the applicable survival period will not thereafter be barred.

ARTICLE VII
MISCELLANEOUS

Section 7.1 Entire Agreement; Binding Effect; Assignment . This Agreement (including the exhibits hereto and the Company Disclosure Schedule) constitutes the entire agreement among the parties hereto in respect of the subject matter hereof and supersede all other prior agreements and understandings, both written and oral, among the parties in respect of the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, by any of the Company or the Member, on the one hand, or the Buyer, on the other hand, without the prior written consent of the other party(ies). Any assignment in violation of the preceding sentence shall be void.

Section 7.2 Notices . All notices, requests, demands, instructions and other documents and communications to be given under this Agreement shall be in writing and shall be deemed given (a) three (3) Business Days following sending by registered or certified mail, postage prepaid, (b) when sent if sent by email, provided that the e-mail is not returned with an undeliverable, delayed or similar message, provided , further , that such notice must also be sent via the method described in subsection (c) or (d) hereof, (c) when delivered, if delivered personally to the intended recipient, and (d) one Business Day following sending by overnight delivery via a nationally recognized overnight courier service wherein the courier provided proof of delivery, and in each case, addressed to a party at the following address for such party:

  if to the Buyer, to: ATRM Holdings, Inc.
    5215 Gershwin Avenue N.
    Oakdale, Minnesota 55128
    Attention: Daniel M. Koch
      President and Chief Executive Officer
    Email: dkoch@atrmholdings.com
     

 

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  with a copy (which shall  
  not constitute notice) to: Olshan Frome Wolosky LLP
    1325 Avenue of the Americas
    New York, New York 10019
    Attention: Adam W. Finerman, Esq.
    Email: afinerman@olshanlaw.com
     
  if to the Member, to: Jeffrey Eberwein
    53 Forest Ave., 1 st Floor
    Old Greenwich, CT 06870
    Email: je@lonestarvm.com

or to such other address or email address as the party to whom notice is given shall have previously furnished to the other parties in writing in the manner set forth above.

Section 7.3 Governing Law; Waiver of Jury Trial . This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to the choice of law principles thereof to the extent that the application of the Laws of another jurisdiction would be required thereby. All actions, suits or proceedings arising out of or relating to this Agreement or any of the other Transaction Documents shall be heard and determined exclusively in any New York state or federal court. The parties hereto hereby (a) submit to the exclusive jurisdiction of any New York state or federal court located in New York County, New York for the purpose of any action, suit or proceeding arising out of or relating to this Agreement or any of the other Transaction Documents brought by any party hereto, and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper, or that this Agreement, any of the other Transaction Documents or any of the Contemplated Transactions may not be enforced in or by any of the above-named courts. Each of the parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of the parties hereto hereby consents to process being served by any party to this Agreement in any suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of Section 7.2 . EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.

Section 7.4 Expenses . All fees and out-of-pocket expenses incurred in connection with this Agreement, any of the other Transaction Documents or any of the Contemplated Transactions (including, without limitation, the fees and expenses of counsel, accountants, consultants and any broker, finder or financial advisor) will be paid by the party incurring such fees and expenses.

Section 7.5 Severability . The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.

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Section 7.6 Specific Performance . The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or injunctions to prevent any breach or threatened breach of this Agreement and to enforce specifically the terms and provisions of this Agreement, without the requirement to post a bond or other security, this being in addition to any other remedy to which they are entitled at law or in equity.

Section 7.7 Counterparts . This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto. Facsimile or .pdf signatures shall have the same force and effect as original signatures.

Section 7.8 Interpretation .

(a) The words “hereof,” “herein,” “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph, exhibit and schedule references are to the articles, sections, paragraphs, exhibits and schedules of this Agreement unless otherwise specified. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” All terms defined in this Agreement shall have the defined meanings contained herein when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, qualified or supplemented, including (in the case of agreements and instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and all attachments thereto and instruments incorporated therein. References to a Person are also to its successors and permitted assigns.

(b) The phrases “the date of this Agreement,” “the date hereof,” and terms of similar import, unless the context otherwise requires, shall be deemed to refer to the date set forth in the opening paragraph of this Agreement.

(c) The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

Section 7.9 Amendment and Modification; Waiver . This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the Buyer, the Company and the Member. No action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

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Section 7.10 Legal Counsel . The Company and the Member acknowledge that Olshan Frome Wolosky LLP represents the Buyer and does not, and did not, represent the Company or the Member in connection with this Agreement and the Contemplated Transactions. Each of the Company and the Member acknowledges that it has been represented by Kleinberg, Kaplan, Wolff & Cohen, P.C. in connection with this Agreement and the Contemplated Transactions. Accordingly, any rule of law or any legal decision that would provide any party with a defense to the enforcement of the terms of this Agreement against such party based upon lack of legal counsel shall have no application and is expressly waived.

Section 7.11 Definitions . As used herein:

Affiliate ” has the meaning given to it in Rule 12b-2 of Regulation 12B under the Exchange Act.

Business Day ” means any day other than a Saturday, a Sunday or a day on which banks in the State of New York generally are closed for regular banking business.

Buyer Material Adverse Effect ” means any event, development, change, circumstance, effect, occurrence or condition that, either individually or in the aggregate, (a) has caused or would reasonably be expected to cause a material adverse effect on the business, operations, financial condition or results of operations of Buyer and its subsidiaries, taken as a whole, or (b) prevents or materially impairs or delays the ability, or would reasonably be expected to prevent or materially impair or delay the ability, of the Buyer to perform any of its obligations under any of the Transaction Documents or to consummate any of the Contemplated Transactions.

Code ” means the Internal Revenue Code of 1986, as amended.

Company Material Adverse Effect ” means any event, development, change, circumstance, effect, occurrence or condition that, either individually or in the aggregate, (a) has caused or would reasonably be expected to cause a material adverse effect on the business, operations, financial condition or results of operations of the Company, or (b) prevents or materially impairs or delays the ability, or would reasonably be expected to prevent or materially impair or delay the ability, of the Company to perform any of their respective obligations under any of the Transaction Documents or to consummate any of the Contemplated Transactions.

Company Tax ” means any Tax, if and to the extent that the Company is or may be potentially liable under applicable Law, under Contract or on any other grounds (including, but not limited to, as a transferee or successor, under Code Section 6901 or Treasury Regulation Section 1.1502-6, as a result of any Tax sharing or other agreement, or by operation of Law) for any such Tax.

Company Tax Return ” means any Tax Return filed or required to be filed by the Company with any Governmental Entity, if, in any manner or to any extent, relating to or inclusive of the Company, or any Company Tax (which, for the avoidance of doubt, shall not include any personal income Tax Return of the Member).

Contemplated Transactions ” means the transactions contemplated by this Agreement and the other Transaction Documents, including the Membership Interest Purchase.

Contract ” means any written or oral contract, agreement, arrangement, license, lease, instrument or note that creates a legally binding obligation.

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Encumbrance ” means any lien, encumbrance, security interest, claim, charge, surety, mortgage, option, pledge, easement, limitation or restriction (including on any right to vote or Transfer any asset or security) of any nature whatsoever.

Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Intellectual Property ” means all intellectual property rights arising from or in respect of the following: (a) all patents and applications therefor, including continuations, divisionals, provisionals, continuations-in-part, or reissues of patent applications and patents issuing thereon; (b) all trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, slogans, Internet domain names and individual, limited liability company and business names, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof; (c) copyrights and registrations and applications therefor, works of authorship and mask work rights; (d) all computer programs and software (including any and all software implementations of algorithms, models and methodologies, whether in source code, object code or other form, but excluding off-the-shelf commercial or shrink-wrap software), databases and compilations (including any and all data and collections of data), and all descriptions, flow-charts and other work product used to design, plan, organize or develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, all technology supporting any of the foregoing, and all documentation, including user manuals and other training documentation, related to any of the foregoing; and (e) all trade secrets, designs, formulae, algorithms, procedures, methods, techniques, ideas, know-how, research and development, technical data, programs, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice), creations, improvements and other similar materials, and all recordings, graphs, drawings, reports, analyses and other works of authorship, and other tangible embodiments of the foregoing, in any form, and all related technology.

Knowledge ” means (a) in the case of the Company or the Member, the actual or constructive knowledge of Jeffrey E. Eberwein, after due inquiry, and (b) in the case of the Buyer, the actual knowledge of each of Daniel M. Koch and Stephen A. Clark, separately and collectively.

Law ” means any order, writ, injunction, decree, judgment, permit, license, ordinance, law, statute, rule, regulation, administrative interpretation, directive or other requirement of any Governmental Entity.

Permitted Lien ” means (a) liens for Taxes, assessments of other governmental charges not yet due and payable, (b) landlord’s, supplier’s, materialmens’, mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’ or other like liens arising or incurred in the ordinary course of business if the underlying obligations are not past due, (c) any interest or title of a lessor under an operating lease or capitalized lease or of any licensor or licensee under a license or (d) liens of lessors under Real Property Leases and licensors under intellectual property licenses.

Person ” means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in the Exchange Act).

Pre-Closing Period ” means any Tax period ending on or before the Closing Date, and the portion of any Straddle Period ending on and including the Closing Date.

Post-Closing Period ” means any Tax period beginning after the Closing Date.

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Representative ” means, with respect to any Person, each of such Person’s Affiliates, managers, officers, employees, partners, members, managers, consultants, advisors, accountants, attorneys, representatives and agents.

Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Straddle Period ” means any Tax period beginning before the Closing Date and ending after the Closing Date.

Tax ” means any tax, charge, deficiency, duty, fee, levy, toll or other amount (including, without limitation, any net income, gross income, profits, gross receipts, excise, property, sales, ad valorem, withholding, social security, retirement, excise, employment, unemployment, minimum, alternative, add-on minimum, estimated, severance, stamp, occupation, environmental, premium, capital stock, disability, windfall profits, use, service, net worth, payroll, franchise, license, gains, customs, transfer, recording, registration or other tax) assessed or otherwise imposed by any Governmental Entity or under applicable Law, together with any interest, penalties or any other additions or increases.

Tax Return ” means mean any return, election, declaration, report, schedule, information return, document, information, opinion, statement, or any amendment to any of the foregoing (including, without limitation, any consolidated, combined or unitary return and any related or supporting information) with respect to Taxes.

Transaction Documents ” means this Agreement, the Working Capital Statement, the assignment for the Membership Interests and any Schedule, Annex or Exhibit to any of the foregoing.

Transfer ” means any sale, assignment, pledge, hypothecation or other disposition.

Treasury Regulations ” means the regulations promulgated under the Code.

[Signature page follows]

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IN WITNESS WHEREOF , each of the parties has caused this Agreement to be duly executed on its behalf as of the date first above written.

 

BUYER:

 

ATRM HOLDINGS, INC.

   
  By:

/s/ Daniel M. Koch

    Name: Daniel M. Koch
    Title: President and Chief Executive Officer

 

 

COMPANY:

 

LONE STAR VALUE MANAGEMENT, LLC

   
  By:

/s/ Jeffrey E. Eberwein

    Name: Jeffrey E. Eberwein
    Title: Sole Member

 

  MEMBER:
   
   
 

/s/ Jeffrey E. Eberwein

  JEFFREY E. EBERWEIN

 

 

 

[Signature Page to Membership Interest Purchase Agreement]

 

 

 

 

Exhibit 10.4

 

PURCHASE AND SALE AGREEMENT

 

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of this 3rd day of April, 2019 (the “Effective Date”) by and between KBS Builders, Inc. , a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Seller”), and 947 Waterford Road, LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, CT 06870 (“Purchaser”).

 

1. Purchase and Sale; Leases at Closing .

 

(a) Subject to the terms and conditions of this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, the following property:

 

(i) The land located at or about 947 Waterford Road in the Town of Waterford, County of Oxford, and State of Maine, as more particularly described in Schedule 1(a)(i) , attached hereto and made a part hereof, together with all rights, privileges, easements, and appurtenances thereto, including all air rights, water rights, easements, rights-of-way, and other interests in, on, under or to any land, highway, alley, street, or right-of-way abutting, adjoining, or used in connection with said land or otherwise appurtenant to said land, including those, if any, set forth on said Schedule (the “Waterford Land”);

 

(ii) all buildings and other improvements located on the Waterford Land (the “Waterford Improvements” and, together with the Waterford Land, the “Waterford Real Property” or the “Real Property”);

 

(iii) (reserved);

 

(iv) (reserved);

 

(v) (reserved);

 

(vi) (reserved);

 

(vii) (reserved);

 

(viii) all warranties, if any, relating to the Real Property (collectively, the “Warranties”)

 

(all of items (i) through (viii) are referred to herein collectively as the “Premises”). Seller and Purchaser acknowledge and agree that Purchaser is not assuming and will not assume at Closing any obligations, debts, or liabilities in connection with the Premises, except as specifically set forth in this Agreement.

 

(b) Lease from Purchaser to Seller at Closing . Contemporaneous with the Closing (as hereafter defined), Purchaser, as landlord, and Seller, as tenant, shall enter into the lease agreement with respect to the Premises in substantially the form attached hereto as Schedule 1(b) .

 

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2. Purchase Price .

 

(a) The purchase price for the Premises (the “Purchase Price”) is Nine Hundred Ninety Thousand and 00/100 Dollars ($990,000.00) and shall be payable as follows:

 

The Purchase Price, subject to adjustment as provided herein, shall be paid by Purchaser at Closing by cashier’s or treasurer’s check made payable to Seller or by electronic wire transfer in accordance with wiring instructions provided by Seller within a reasonable time prior to the Closing.

 

(b) (reserved.)

 

3. Adjustments and Costs . All applicable real estate taxes, common area charges, association dues, fuel value, utility charges and other charges and assessments affecting the Premises shall be apportioned between Seller and Purchaser as of the Closing Date (as hereinafter defined), subject , however , to Seller’s obligations under the Lease.

 

4. Deed; Conveyance .

 

(a) Seller shall convey the Real Property to Purchaser by good and sufficient Quitclaim Deed with Covenant following the Maine statutory short form (the “Deed”). Title to the Real Property shall be good and marketable, free of all encumbrances, and subject only to such real estate taxes for the then-current tax year as are not yet due and payable as of the Closing Date. If requested by Purchaser, Seller agrees to convey the Premises utilizing a description prepared from a survey procured by Purchaser. Seller shall assign the Warranties by good and sufficient assignment instrument. Seller shall have the right to use the Purchase Price paid at Closing to satisfy any indebtedness secured by the Premises or any portion thereof provided that discharges or terminations of all mortgages of and security interests in the Premises are executed and delivered by the holder(s) of such indebtedness at Closing (or commercially reasonable arrangements acceptable to Purchaser and its title insurance company have been made for the execution and delivery of such discharges and terminations have been made at or prior to Closing).

 

(b) Without limiting the generality of Section 4(a), the Premises shall not be considered to be in compliance with the provisions of this Agreement with respect to title unless title to the Real Property is insurable for the benefit of Purchaser at ordinary rates under the 2006 ALTA form of owner’s title insurance policy by a title insurance company of Purchaser’s selection, with so-called “extended coverage,” and including such endorsements as Purchaser shall require and subject only to those exceptions from coverage (including for any easements, restrictions, encumbrances, or other matters set forth or referenced on any schedule hereto) that are approved by Purchaser in its sole discretion as provided in this Agreement.

 

(c) At Closing, Seller shall furnish such evidence of Seller’s existence and authority to enter into and perform the transactions contemplated by this Agreement as is sufficient to satisfy the requirements of Purchaser’s title insurance company and shall execute, acknowledge, and deliver affidavits and indemnity agreements in the forms customarily required by Purchaser’s title insurance company, including those necessary to: (i) delete the exceptions for unfiled mechanics’ liens and for parties in possession; (ii) delete the standard exception for such matters that would be shown by a current ALTA survey; and (iii) insure against matters affecting title to the Premises that arise during the period between the effective date of Purchaser’s title insurance commitment and the recording of the Deed.

 

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5. Items to be Delivered to Purchaser from Seller . To the extent within the possession or control of Seller, and to the extent such documents exist, Seller shall promptly deliver to Purchaser any and all surveys, environmental reports, engineering reports, title insurance policies and title reports, and such other information and/or documentation pertaining to the Premises as is reasonably requested by Purchaser from time-to-time after the Effective Date.

 

6. Specific Conditions . The obligations of Purchaser under this Agreement are subject to Purchaser being satisfied, in its sole discretion, with the following at or prior to Closing:

 

(a) the physical condition (including the environmental condition) of the Premises, including the Improvements;

 

(b) the status of title to the Premises and Purchaser’s ability to obtain an owner’s title insurance policy for the Real Property that is in all respects satisfactory to Purchaser, including with respect to the absence of tenants in possession and other occupants, and with such coverages and endorsements as Purchaser shall reasonably require;

 

(c) the boundaries and other states of facts, conditions and possible conditions shown by, and other results of, any existing surveys of the Real Property, if any, and/or any survey commissioned by or on behalf of Purchaser; and

 

(d) (Reserved.)

 

Purchaser shall have the right to enter upon the Premises at reasonable times after the Effective Date in connection with Purchaser’s efforts to satisfy the foregoing conditions. If any of the foregoing conditions are not satisfied, Purchaser shall have the right to terminate this Agreement by giving written notice to Seller, in which event all obligations of the parties hereunder shall cease.

 

7. Representation and Warranties.

 

(a) Seller represents and warrants to Purchaser that the following are true and correct as of the date of this Agreement and will be true and correct as of the Closing

 

(i) Seller is a limited liability company, duly organized and validly existing under the laws of the State of Delaware;

 

(ii) Seller has the right, power, and authority to enter into this Agreement or to perform its obligations hereunder, without the joinder of any other party;

 

(iii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated, and the compliance with the terms of this Agreement will not violate any provisions of the articles of incorporation, bylaws, or any other similar instrument of Seller and will not conflict with or, with or without notice or the passage of time, or both, result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, agreement, or other instrument to which Seller is a party or by which Seller or the Premises are bound, or of any applicable governmental regulation or any judgment, order, or decree of any court or governmental authority having jurisdiction over Seller or the Premises;

 

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(iv) There are no violations of laws or regulations affecting the Premises, including without limitation any laws relating to accessibility or Hazardous Substances (as defined below) and Seller has not received any notice from any source claiming or inquiring into the existence of any such violation;

 

(v) There is no action, suit, legal proceeding, or other proceeding (including proceedings for condemnation or eminent domain) pending or threatened (or, to the best of Seller’s knowledge, any basis therefor) against Seller or affecting any portion of the Premises in any court or before any arbitrator of any kind or before any governmental body or tribunal for dispute resolution that may materially or adversely affect the transactions contemplated by this Agreement or which may affect any portion of the Premises, other than the proceedings that are the subject of attachments recorded in the Oxford County Registry of Deeds in Book 5441, Page 463 and Book 5445, Page 667, both of which either have been fully resolved on or about the Effective Date or will be fully resolved prior to Closing;

 

(vi) Seller has not released or disposed of any Hazardous Substances on, in, under or from the Real Property, and Seller has no knowledge of the release or disposal of any Hazardous Substance on, in, under or from the Real Property at any time by any other person. There are no underground storage tanks on the Real Property. The term “Hazardous Substances” means any flammables, explosives, radioactive materials, gasoline, oil, other petroleum products, lead paint, urea formaldehyde (including urea formaldehyde foam insulation), asbestos, asbestos containing materials, polychlorinated biphenyls, and any other hazardous materials, hazardous waste, hazardous matter, hazardous or toxic substances, chemical pollutants, and other materials or substances defined in or regulated by Environmental Laws. The term “Environmental Laws” means (A) the Clean Water Act; (B) the Clean Air Act; (C) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act; (D) the Toxic Substance Control Act; (E) the Resource Conservation and Recovery Act; (F) the Hazardous Materials Transportation Act; and/or (G) any similar state laws regulating pollution or contamination of the environment;

 

(vii) The Real Property consists of an independent unit that does not rely on any property or facilities (other than public utilities) located on any property not included in such portion of the Real Property for any of the means of ingress or egress, to fulfill any zoning or other municipal or governmental requirements, for structural support, or for utilities, septic or water service, or any similar purposes, and no other property or facilities rely on any of the Real Property for any such purposes;

 

(viii) To the best of Seller’s knowledge, all written information furnished by Seller or its agents to Purchaser and its agents is true, accurate and complete; and no document, certificate or written statement furnished to Purchaser by or on behalf of Seller in connection with this Agreement or the transactions contemplated hereby contains or will contain any untrue statement of a material fact or omit or will omit or state any material fact necessary in order to make the statements contained herein and therein not misleading;

 

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(ix) The Improvements contain all heating systems and fixtures, ventilating systems and fixtures, cooling systems and fixtures, plumbing systems and fixtures (including water supply and wastewater disposal), electrical systems and fixtures, security systems and fixtures, fire alarms, sprinkler systems and fixtures, smoke detection systems and fixtures, storm water management facilities and other mechanical and life safety systems required for the operation of the Improvements for their intended use and in compliance with applicable laws and regulations, and the Improvements and all such systems and fixtures same are in good order, condition, and repair. Seller has not received any notice from any governmental, quasi-governmental agency or other group or individual alleging that the Improvements or any portion thereof does not comply with applicable law or requiring the correction of any condition with respect to the Premises by reason of any violation of any law or ordinance;

 

(x) Seller has paid or shall pay at Closing all taxes, charges and assessments required to be paid to each taxing authority which could in any way constitute a lien against the Premises or any part thereof. Seller has not received any written notice of any special assessments or betterments with respect to the Premises or any written notice of an increase or proposed increase in the assessed valuation of the Premises or any part thereof and no exemption from full taxation of the Premises or any part thereof has been claimed by Seller;

 

(xi) the Premises are not located in whole or in part within 250 feet of the normal high water line of a great pond, river, saltwater body or coastal or fresh water wetland and the Premises are serviced by public water and public sewer services and, if there is a subsurface waste water disposal system located on or serving the Premises, (A) Seller has a written inspection report for an inspection of the subsurface waste water disposal system that was performed within three years prior to the Closing Date by a person certified by the Department of Health and Human Services; and (B) it has not malfunctioned during the 180 days preceding the date of this Agreement and will not have malfunctioned during the 180 days preceding the Closing.

 

(xii) no abandoned or discontinued town ways, public easements, or private roads are located on or abutting the Premises

 

(xiii) the Premises are not subject to any special real estate tax classification, including tree growth, farmland, or open space, or to any tax increment financing arrangement or other arrangement for payments in lieu of taxes.

 

(c) Purchaser represents and warrants to Seller that the following are true as of the Effective Date and will be true as of the Closing:

 

(i) Purchaser is a corporation, duly organized and validly existing under the laws of the State of Delaware;

 

(ii) Purchaser has the right, power and authority to enter into this Agreement or to perform its obligations hereunder; and

 

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(iii) The execution and delivery of this Agreement, the consummation of the transaction herein contemplated, and the compliance with the terms of this Agreement will not violate any provisions of the Articles of Incorporation, Operating Agreement, Bylaws or similar instrument of Purchaser nor conflict with, or with or without notice or the passage of time, or both, result in a breach of, any of the terms or provisions of or constitute a default under any indenture, mortgage, loan agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or any applicable governmental regulation or any judgment, order or decree of any court having jurisdiction over Purchaser.

 

(d) All representations and warranties set forth in this Section shall survive the Closing. If either party discovers that any representation or warranty to the other party is untrue or incorrect in any material respect, it shall promptly notify the other party and the party having made the untrue or incorrect representation or warranty shall indemnify and hold harmless the discovering party for all demands, claims, causes of action, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees), incurred by the discovering party arising out of such untrue or incorrect representation or warranty, which obligation shall survive the Closing.

 

8. Covenants and Agreements of Seller . Seller covenants and agrees with Purchaser that between the Effective Date and the Closing:

 

(a) It shall not dispose of any interest in the Premises; shall not grant, mortgage, pledge or subject to lien or other encumbrances any interest in the Premises; shall not enter into any leases or other agreements relating to the Premises that would affect the sale or survive the Closing; shall keep the Improvements insured for not less than full replacement value and maintain, preserve and keep all of the Improvements in good condition and repair, ordinary and reasonable wear and tear excepted; and shall maintain its general liability insurance in effect consistent with its normal conduct of business;

 

(b) It shall not take any action or fail to take any action that would cause the Premises not to conform with the provisions of this Agreement, would cause any statements set forth in this Agreement to be untrue or incorrect, or would otherwise cause Seller to be unable to perform its obligations under this Agreement.

 

9. Conditions Precedent to Purchaser’s Performance .

 

(a) Purchaser’s obligations hereunder, including the obligation to purchase and pay for the Premises, are subject to the satisfaction of the following conditions, any of which may be waived by Purchaser, but only in a writing signed by Purchaser:

 

(i) All of Seller’s representations and warranties being true and correct as of the Closing Date;

 

(ii) no material adverse changes in the physical condition of the Premises or the results of operations thereof shall have occurred and the Premises shall be in the same condition at the Closing as of the Effective Date, ordinary and reasonable wear and tear excepted;

 

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(iii) no portion of the Premises shall have been condemned or sold in lieu thereof or be the subject of any pending or threatening condemnation proceeding or subject to any pending or threatening legislation, regulation, rezoning or zoning amendment, moratorium or referendum; and

 

(iv) Seller shall have performed all of the obligations required by this Agreement to be performed by Seller and all of the obligations required by a Purchase and Sale Agreement of even or near date between Seller and 300 Park Street, LLC, pertaining to certain property owned by Seller and located at or about 300 Park Street in Paris, Maine, and such agreement shall not have been terminated.

 

(b) If any of the conditions set forth above are, in Purchaser’s sole discretion, not satisfied, Purchaser may, by giving written notice to Seller on or before the Closing Date, elect (i) to waive such condition and proceed with the Closing or (ii) to terminate this Agreement. The foregoing notwithstanding, if such contingency is not satisfied and such dissatisfaction arises as a result of any act or omission of Seller in violation of this Agreement, Purchaser may exercise all remedies available to it, in law or in equity, against Seller for breach of this Agreement.

 

10. Closing .

 

(a) The consummation of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Purchaser’s counsel or at such other place as is agreed upon by the parties on or before April 3, 2019, or such other date as may be agreed upon by the parties (the “Closing Date”).

 

(b) The following shall occur at the Closing, each being a condition precedent to the others and all being considered as occurring simultaneously:

 

(i) Seller shall execute, acknowledge, and deliver to Purchaser the Deed, said Deed being subject only to the matters described in Section 4 and to any Exceptions accepted by Purchaser;

 

(ii) (reserved.);

 

(iii) Seller shall execute, acknowledge, and deliver to Purchaser one or more instruments conveying to Purchaser good and marketable title to the Warranties, free of all encumbrances, in form and substance acceptable to Seller;

 

(iv) Seller shall execute and deliver the title insurance affidavits and indemnities as provided in this Agreement;

 

(v) Seller and Purchaser shall deliver certifications confirming that their respective representations and warranties set forth in this Agreement continue to be true and correct as of the Closing Date;

 

(vi) Seller shall deliver an affidavit indicating that Seller is not a foreign person and that the transaction is exempt from the requirements of 26 U.S.C. § 1445, or in lieu thereof, Purchaser shall be entitled to withhold and account for a portion of the Purchase Price as required by such statute and corresponding regulations;

 

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(vii) Seller shall deliver an affidavit indicating that Seller is a Maine resident, or in lieu thereof, Purchaser shall be entitled to withhold and account for a portion of the Purchase Price as required by 33 M.R.S. §5250-A;

 

(viii) Each party shall deliver to the other a manager’s or member’s certificate certifying as to authority and appropriate resolutions adopted by the party, current officers or other parties authorized to execute documents on behalf of such party, and such other organizational and/or authority documents as shall be reasonably requested in connection with this transaction;

 

(ix) Purchaser shall pay the Purchase Price as provided in this Agreement and the parties shall execute and deliver a settlement statement memorializing the Purchase Price, the adjustments thereto, and other costs and expenses to be paid, or credited to or debited from the amounts due from or to either Party, at Closing;

 

(x) Each party shall deliver to the other such other documents, certificates and the like as may be required herein or as may be necessary to carry out the obligations under this Agreement; and

 

(xi) Seller shall deliver to Purchaser keys to and possession of the Premises, free and clear of any tenancy or persons in possession other than Seller as tenant under the Leases.

 

11. Risk of Loss .

 

(a) Risk of loss to the Premises prior to the Closing shall be borne by Seller. If between the Effective Date and the Closing, any part of the Premises (including any right appurtenant to the Premises) is taken in condemnation or under the right of eminent domain, or any portion of the Premises is damaged by fire or other peril, Purchaser shall have the right to terminate this Agreement by giving written notice to Seller at any time at or prior to Closing.

 

(b) If Purchaser does not elect to terminate this Agreement pursuant to this Section, Seller and Purchaser shall perform their respective obligations under this Agreement and Seller shall (i) deliver to Purchaser at the Closing any insurance proceeds and/or condemnation awards received by Seller as a result of any occurrence specified in this Section in respect of or allocable to the Premises; and (ii) assign to Purchaser all of Seller's right, title, and interest in any to any insurance proceeds and condemnation awards allocable to the Premises which have not yet been received by Seller.

 

12. Broker . Seller and Purchaser warrant and represent to each other that neither has employed or engaged any real estate broker or agent in connection with this transaction that could give rise to a lien against the Premises. Each party agrees to hold the other party harmless from and against any and all demands, claims, causes of action, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising from the breach of such party’s representation or warranty contained in this Section. The provisions of this Section shall survive the Closing.

 

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13. Notices . All notices and other communications required or permitted under this Agreement shall be in writing and shall be hand delivered, or given by certified mail, return receipt requested, or by Federal Express or another nationally recognized overnight courier service, addressed to the party to receive such notice at the address set forth in the preamble of this Agreement. Any such notice shall be deemed effective when personally delivered (in the case of hand delivery) or upon being deposited with such courier service or with the United States Postal Service. Any party may change the address to which its future notices shall be sent by notice given in the manner set forth above.

 

14. Miscellaneous .

 

(a) Any reference herein to time periods of less than seven (7) days shall be computed to exclude Saturdays, Sundays, and statutory holidays in the State of Maine. Any time period provided for herein which ends on a Saturday, Sunday, or statutory holiday in the State of Maine shall extend to midnight at the end of the next day that is not a Saturday, Sunday, or statutory holiday in the State of Maine.

 

(b) Purchaser or Purchaser’s agents shall have the right to enter upon the Real Property prior to the Closing for the purpose of making studies and inspections of the Real Property during normal business hours, so long as Purchaser or Purchaser’s agents do not unreasonably interfere with Seller’s use of the Real Property. Any such entry shall be at Purchaser’s own risk and Purchaser agrees to indemnify and hold Seller harmless from and against any property damage or personal injury or claim or lien against the Premises to the extent caused by any such access or inspection by Purchaser or its representatives.

 

(c) This Agreement shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective successors and assigns.

 

(d) All understandings, agreements, warranties, and representations, either oral or in writing, heretofore between the parties hereto with respect to the purchase and sale of the Premises are merged into this Agreement, which alone fully and completely expresses the parties’ agreement with respect to the transaction contemplated hereby. The representations and warranties set forth in this Agreement shall survive the Closing. This Agreement may not be modified in any manner except by an instrument in writing signed by Seller and Purchaser.

 

(e) This Agreement, and all claims or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of or relate to this Agreement, shall be governed by and enforced in accordance with the internal laws of the State of Maine, including its statutes of limitations, without regard or reference to conflicts of law principles. In the event of a breach of this Agreement by any party, the other party shall be entitled to recover reasonable attorneys’ fees incurred in connection with the enforcement of its rights hereunder. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which, taken together, shall constitute a single instrument.

 

(f) Whenever the word “include,” “includes,” or “including” is used in this Agreement, it is deemed to be followed by the words “without limitation.” The terms “this Agreement,” “hereof,” “herein,” “hereby,” “hereunder” and similar expressions refer to this Agreement as a whole and not to any particular section of this Agreement unless the context otherwise requires. The word “person” includes any individual, corporation, firm, association, partnership (general or limited), joint venture, limited liability company, trust, estate or other legal entity. The section and sub-section headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their undersigned representatives as of the date first written above.

 

  SELLER:
  KBS Builders, Inc.
     
  By: /s/Daniel M. Koch
  Name:  Daniel M. Koch
  Its: President
     
     
  PURCHASER:
  947 Waterford Road, LLC
     
  By: /s/David Noble
  Name: David Noble
  Its: President

 

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Exhibit 10.5

 

PURCHASE AND SALE AGREEMENT

 

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of this 3rd day of April, 2019 (the “Effective Date”) by and between KBS Builders, Inc. , a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Seller”), and 300 Park Street, LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, CT 06870 (“Purchaser”).

 

1. Purchase and Sale; Leases at Closing .

 

(a) Subject to the terms and conditions of this Agreement, Seller agrees to sell and convey to Purchaser, and Purchaser agrees to purchase from Seller, the following property:

 

(i) The land located at or about 300 Park Street in the Town of Paris, County of Oxford, and State of Maine, as more particularly described in Schedule 1(a)(i) , attached hereto and made a part hereof, together with all rights, privileges, easements, and appurtenances thereto, including all air rights, water rights, easements, rights-of-way, and other interests in, on, under or to any land, highway, alley, street, or right-of-way abutting, adjoining, or used in connection with said land or otherwise appurtenant to said land, including those, if any, set forth on said Schedule (the “Paris Land”);

 

(ii) all buildings and other improvements located on the Paris Land (the “Paris Improvements” and, together with the Paris Land, the “Paris Real Property” or the “Real Property”);

 

(iii) the machinery, equipment, furniture, furnishings, tangible personal property, trade fixtures, and fixtures located at or used in connection with the Paris Real Property, which are more particularly described on Schedule 1(a)(iii) (all such items, other than the aforesaid excluded items, being referred to herein as the “Paris Personal Property or the Personal Property”);

  

(iv) (reserved);

 

(v) (reserved);

 

(vi) (reserved);

 

(vii) (reserved)

 

(viii) all warranties, if any, relating to the Real Property and all warranties, if any, relating to the Personal Property (collectively, the “Warranties”)

 

(all of items (i) through (viii) are referred to herein collectively as the “Premises”). Seller and Purchaser acknowledge and agree that Purchaser is not assuming and will not assume at Closing any obligations, debts, or liabilities in connection with the Premises, except as specifically set forth in this Agreement.

 

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(b) Lease from Purchaser to Seller at Closing . Contemporaneous with the Closing (as hereafter defined), Purchaser, as landlord, and Seller, as tenant, shall enter into the lease agreement with respect to the Premises in substantially the form attached hereto as Schedule 1(b) .

 

2. Purchase Price; Allocation .

 

(a) The purchase price for the Premises (the “Purchase Price”) is Two Million Eight Hundred Eighty-Three Thousand Two Hundred Five and 70/100 Dollars ($2,883,205.70) and shall be payable as follows:

  

The Purchase Price, subject to adjustment as provided herein, shall be paid by Purchaser at Closing by cashier’s or treasurer’s check made payable to Seller or by electronic wire transfer in accordance with wiring instructions provided by Seller within a reasonable time prior to the Closing.

 

(b) The Purchase Price shall be allocated as follows:

 

  Paris Real Property $2,335,000.00
  Personal Property
  Hundegger Saw $230,105.70
  Other Personal Property

$318,100.00

 

3. Adjustments and Costs . All applicable real estate taxes, personal property taxes, common area charges, association dues, fuel value, utility charges and other charges and assessments affecting the Premises shall be apportioned between Seller and Purchaser as of the Closing Date (as hereinafter defined), subject , however , to Seller’s obligations under the Lease.

 

4. Deed; Conveyance .

 

(a) Seller shall convey the Real Property to Purchaser by good and sufficient Quitclaim Deed with Covenant following the Maine statutory short form (the “Deed”). Title to the Real Property shall be good and marketable, free of all encumbrances, and subject only to such real estate taxes for the then-current tax year as are not yet due and payable as of the Closing Date. If requested by Purchaser, Seller agrees to convey the Premises utilizing a description prepared from a survey procured by Purchaser. Seller shall convey the Personal Property to Purchaser by one or more good and sufficient warranty bills of sale. Title to the Personal Property shall be good and marketable, free of all encumbrances, and subject only to personal property taxes for the then-current tax year as are not yet due and payable as of the Closing Date. Seller shall assign the Warranties by good and sufficient assignment instrument. Seller shall have the right to use the Purchase Price paid at Closing to satisfy any indebtedness secured by the Premises or any portion thereof provided that discharges or terminations of all mortgages of and security interests in the Premises are executed and delivered by the holder(s) of such indebtedness at Closing (or commercially reasonable arrangements acceptable to Purchaser and its title insurance company have been made for the execution and delivery of such discharges and terminations have been made at or prior to Closing).

 

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(b) Without limiting the generality of Section 4(a), the Premises shall not be considered to be in compliance with the provisions of this Agreement with respect to title unless title to the Real Property is insurable for the benefit of Purchaser at ordinary rates under the 2006 ALTA form of owner’s title insurance policy by a title insurance company of Purchaser’s selection, with so-called “extended coverage,” and including such endorsements as Purchaser shall require and subject only to those exceptions from coverage (including for any easements, restrictions, encumbrances, or other matters set forth or referenced on any schedule hereto) that are approved by Purchaser in its sole discretion as provided in this Agreement.

 

(c) At Closing, Seller shall furnish such evidence of Seller’s existence and authority to enter into and perform the transactions contemplated by this Agreement as is sufficient to satisfy the requirements of Purchaser’s title insurance company and shall execute, acknowledge, and deliver affidavits and indemnity agreements in the forms customarily required by Purchaser’s title insurance company, including those necessary to: (i) delete the exceptions for unfiled mechanics’ liens and for parties in possession; (ii) delete the standard exception for such matters that would be shown by a current ALTA survey; and (iii) insure against matters affecting title to the Premises that arise during the period between the effective date of Purchaser’s title insurance commitment and the recording of the Deed.

 

5. Items to be Delivered to Purchaser from Seller . To the extent within the possession or control of Seller, and to the extent such documents exist, Seller shall promptly deliver to Purchaser any and all surveys, environmental reports, engineering reports, title insurance policies and title reports, and such other information and/or documentation pertaining to the Premises as is reasonably requested by Purchaser from time-to-time after the Effective Date.

 

6. Specific Conditions . The obligations of Purchaser under this Agreement are subject to Purchaser being satisfied, in its sole discretion, with the following at or prior to Closing:

 

(a) the physical condition (including the environmental condition) of the Premises, including the Improvements and the Personal Property;

 

(b) the status of title to the Premises and Purchaser’s ability to obtain an owner’s title insurance policy for the Real Property that is in all respects satisfactory to Purchaser, including with respect to the absence of tenants in possession and other occupants, and with such coverages and endorsements as Purchaser shall reasonably require;

 

(c) the boundaries and other states of facts, conditions and possible conditions shown by, and other results of, any existing surveys of the Real Property, if any, and/or any survey commissioned by or on behalf of Purchaser; and

 

(d) (Reserved.)

 

Purchaser shall have the right to enter upon the Premises at reasonable times after the Effective Date in connection with Purchaser’s efforts to satisfy the foregoing conditions. If any of the foregoing conditions are not satisfied, Purchaser shall have the right to terminate this Agreement by giving written notice to Seller, in which event all obligations of the parties hereunder shall cease.

 

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7. Representation and Warranties.

 

(a) Seller represents and warrants to Purchaser that the following are true and correct as of the date of this Agreement and will be true and correct as of the Closing

 

(i) Seller is a limited liability company, duly organized and validly existing under the laws of the State of Delaware;

 

(ii) Seller has the right, power, and authority to enter into this Agreement or to perform its obligations hereunder, without the joinder of any other party;

 

(iii) The execution and delivery of this Agreement, the consummation of the transactions herein contemplated, and the compliance with the terms of this Agreement will not violate any provisions of the articles of incorporation, bylaws, or any other similar instrument of Seller and will not conflict with or, with or without notice or the passage of time, or both, result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, agreement, or other instrument to which Seller is a party or by which Seller or the Premises are bound, or of any applicable governmental regulation or any judgment, order, or decree of any court or governmental authority having jurisdiction over Seller or the Premises;

 

(iv) There are no violations of laws or regulations affecting the Premises, including without limitation any laws relating to accessibility or Hazardous Substances (as defined below) and Seller has not received any notice from any source claiming or inquiring into the existence of any such violation;

 

(v) There is no action, suit, legal proceeding, or other proceeding (including proceedings for condemnation or eminent domain) pending or threatened (or, to the best of Seller’s knowledge, any basis therefor) against Seller or affecting any portion of the Premises in any court or before any arbitrator of any kind or before any governmental body or tribunal for dispute resolution that may materially or adversely affect the transactions contemplated by this Agreement or which may affect any portion of the Premises, other than the proceedings that are the subject of attachments recorded in the Oxford County Registry of Deeds in Book 5441, Page 463 and Book 5445, Page 667, both of which either have been fully resolved on or about the Effective Date or will be fully resolved prior to Closing;

 

(vi) Seller has not released or disposed of any Hazardous Substances on, in, under or from the Real Property, and Seller has no knowledge of the release or disposal of any Hazardous Substance on, in, under or from the Real Property at any time by any other person. There are no underground storage tanks on the Real Property. The term “Hazardous Substances” means any flammables, explosives, radioactive materials, gasoline, oil, other petroleum products, lead paint, urea formaldehyde (including urea formaldehyde foam insulation), asbestos, asbestos containing materials, polychlorinated biphenyls, and any other hazardous materials, hazardous waste, hazardous matter, hazardous or toxic substances, chemical pollutants, and other materials or substances defined in or regulated by Environmental Laws. The term “Environmental Laws” means (A) the Clean Water Act; (B) the Clean Air Act; (C) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act; (D) the Toxic Substance Control Act; (E) the Resource Conservation and Recovery Act; (F) the Hazardous Materials Transportation Act; and/or (G) any similar state laws regulating pollution or contamination of the environment;

 

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(vii) The Real Property consists of an independent unit that does not rely on any property or facilities (other than public utilities) located on any property not included in such portion of the Real Property for any of the means of ingress or egress, to fulfill any zoning or other municipal or governmental requirements, for structural support, or for utilities, septic or water service, or any similar purposes, and no other property or facilities rely on any of the Real Property for any such purposes;

 

(viii) To the best of Seller’s knowledge, all written information furnished by Seller or its agents to Purchaser and its agents is true, accurate and complete; and no document, certificate or written statement furnished to Purchaser by or on behalf of Seller in connection with this Agreement or the transactions contemplated hereby contains or will contain any untrue statement of a material fact or omit or will omit or state any material fact necessary in order to make the statements contained herein and therein not misleading;

 

(ix) The Improvements contain all heating systems and fixtures, ventilating systems and fixtures, cooling systems and fixtures, plumbing systems and fixtures (including water supply and wastewater disposal), electrical systems and fixtures, security systems and fixtures, fire alarms, sprinkler systems and fixtures, smoke detection systems and fixtures, storm water management facilities and other mechanical and life safety systems required for the operation of the Improvements for their intended use and in compliance with applicable laws and regulations, and the Improvements and all such systems and fixtures same are in good order, condition, and repair. Seller has not received any notice from any governmental, quasi-governmental agency or other group or individual alleging that the Improvements or any portion thereof does not comply with applicable law or requiring the correction of any condition with respect to the Premises by reason of any violation of any law or ordinance;

 

(x) Seller has paid or shall pay at Closing all taxes, charges and assessments required to be paid to each taxing authority which could in any way constitute a lien against the Premises or any part thereof. Seller has not received any written notice of any special assessments or betterments with respect to the Premises or any written notice of an increase or proposed increase in the assessed valuation of the Premises or any part thereof and no exemption from full taxation of the Premises or any part thereof has been claimed by Seller;

 

(xi) the Premises are not located in whole or in part within 250 feet of the normal high water line of a great pond, river, saltwater body or coastal or fresh water wetland and the Premises are serviced by public water and public sewer services.

 

(xii) no abandoned or discontinued town ways, public easements, or private roads are located on or abutting the Premises

 

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(xiii) the Premises are not subject to any special real estate tax classification, including tree growth, farmland, or open space, or to any tax increment financing arrangement or other arrangement for payments in lieu of taxes.

 

(c) Purchaser represents and warrants to Seller that the following are true as of the Effective Date and will be true as of the Closing:

 

(i) Purchaser is a corporation, duly organized and validly existing under the laws of the State of Delaware;

 

(ii) Purchaser has the right, power and authority to enter into this Agreement or to perform its obligations hereunder; and

 

(iii) The execution and delivery of this Agreement, the consummation of the transaction herein contemplated, and the compliance with the terms of this Agreement will not violate any provisions of the Articles of Incorporation, Operating Agreement, Bylaws or similar instrument of Purchaser nor conflict with, or with or without notice or the passage of time, or both, result in a breach of, any of the terms or provisions of or constitute a default under any indenture, mortgage, loan agreement or instrument to which Purchaser is a party or by which Purchaser is bound, or any applicable governmental regulation or any judgment, order or decree of any court having jurisdiction over Purchaser.

 

(d) All representations and warranties set forth in this Section shall survive the Closing. If either party discovers that any representation or warranty to the other party is untrue or incorrect in any material respect, it shall promptly notify the other party and the party having made the untrue or incorrect representation or warranty shall indemnify and hold harmless the discovering party for all demands, claims, causes of action, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees), incurred by the discovering party arising out of such untrue or incorrect representation or warranty, which obligation shall survive the Closing.

 

8. Covenants and Agreements of Seller . Seller covenants and agrees with Purchaser that between the Effective Date and the Closing:

 

(a) It shall not dispose of any interest in the Premises; shall not grant, mortgage, pledge or subject to lien or other encumbrances any interest in the Premises; shall not enter into any leases or other agreements relating to the Premises that would affect the sale or survive the Closing; shall keep the Improvements and Personal Property insured for not less than full replacement value and maintain, preserve and keep all of the Improvements and Personal Property in good condition and repair, ordinary and reasonable wear and tear excepted; and shall maintain its general liability insurance in effect consistent with its normal conduct of business;

 

(b) It shall not take any action or fail to take any action that would cause the Premises not to conform with the provisions of this Agreement, would cause any statements set forth in this Agreement to be untrue or incorrect, or would otherwise cause Seller to be unable to perform its obligations under this Agreement.

 

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9. Conditions Precedent to Purchaser’s Performance .

 

(a) Purchaser’s obligations hereunder, including the obligation to purchase and pay for the Premises, are subject to the satisfaction of the following conditions, any of which may be waived by Purchaser, but only in a writing signed by Purchaser:

 

(i) All of Seller’s representations and warranties being true and correct as of the Closing Date;

 

(ii) no material adverse changes in the physical condition of the Premises or the results of operations thereof shall have occurred and the Premises shall be in the same condition at the Closing as of the Effective Date, ordinary and reasonable wear and tear excepted;

 

(iii) no portion of the Premises shall have been condemned or sold in lieu thereof or be the subject of any pending or threatening condemnation proceeding or subject to any pending or threatening legislation, regulation, rezoning or zoning amendment, moratorium or referendum; and

 

(iv) Seller shall have performed all of the obligations required by this Agreement to be performed by Seller and all of the obligations required by a Purchase and Sale Agreement of even or near date between Seller and 947 Waterford Road, LLC, pertaining to certain property owned by Seller and located at or about 947 Waterford Road in Waterford, Maine, and such agreement shall not have been terminated.

 

(b) If any of the conditions set forth above are, in Purchaser’s sole discretion, not satisfied, Purchaser may, by giving written notice to Seller on or before the Closing Date, elect (i) to waive such condition and proceed with the Closing or (ii) to terminate this Agreement. The foregoing notwithstanding, if such contingency is not satisfied and such dissatisfaction arises as a result of any act or omission of Seller in violation of this Agreement, Purchaser may exercise all remedies available to it, in law or in equity, against Seller for breach of this Agreement.

 

10. Closing .

 

(a) The consummation of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Purchaser’s counsel or at such other place as is agreed upon by the parties on or before April 3, 2019, or such other date as may be agreed upon by the parties (the “Closing Date”).

 

(b) The following shall occur at the Closing, each being a condition precedent to the others and all being considered as occurring simultaneously:

 

(i) Seller shall execute, acknowledge, and deliver to Purchaser the Deed, said Deed being subject only to the matters described in Section 4 and to any Exceptions accepted by Purchaser;

 

(ii) Seller shall execute, acknowledge, and deliver to Purchaser one or more warranty bills of sale conveying to Purchaser good and marketable title to the Personal Property, free of all encumbrances, in form and substance acceptable to Seller;

 

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(iii) Seller shall execute, acknowledge, and deliver to Purchaser one or more instruments conveying to Purchaser good and marketable title to the Warranties, free of all encumbrances, in form and substance acceptable to Seller;

 

(iv) Seller shall execute and deliver the title insurance affidavits and indemnities as provided in this Agreement;

 

(v) Seller and Purchaser shall deliver certifications confirming that their respective representations and warranties set forth in this Agreement continue to be true and correct as of the Closing Date;

 

(vi) Seller shall deliver an affidavit indicating that Seller is not a foreign person and that the transaction is exempt from the requirements of 26 U.S.C. § 1445, or in lieu thereof, Purchaser shall be entitled to withhold and account for a portion of the Purchase Price as required by such statute and corresponding regulations;

 

(vii) Seller shall deliver an affidavit indicating that Seller is a Maine resident, or in lieu thereof, Purchaser shall be entitled to withhold and account for a portion of the Purchase Price as required by 33 M.R.S. §5250-A;

 

(viii) Each party shall deliver to the other a manager’s or member’s certificate certifying as to authority and appropriate resolutions adopted by the party, current officers or other parties authorized to execute documents on behalf of such party, and such other organizational and/or authority documents as shall be reasonably requested in connection with this transaction;

 

(ix) Purchaser shall pay the Purchase Price as provided in this Agreement and the parties shall execute and deliver a settlement statement memorializing the Purchase Price, the adjustments thereto, and other costs and expenses to be paid, or credited to or debited from the amounts due from or to either Party, at Closing;

 

(x) Each party shall deliver to the other such other documents, certificates and the like as may be required herein or as may be necessary to carry out the obligations under this Agreement; and

 

(xi) Seller shall deliver to Purchaser keys to and possession of the Premises, free and clear of any tenancy or persons in possession other than Seller as tenant under the Leases.

 

11. Risk of Loss .

 

(a) Risk of loss to the Premises prior to the Closing shall be borne by Seller. If between the Effective Date and the Closing, any part of the Premises (including any right appurtenant to the Premises) is taken in condemnation or under the right of eminent domain, or any portion of the Premises is damaged by fire or other peril, Purchaser shall have the right to terminate this Agreement by giving written notice to Seller at any time at or prior to Closing.

 

(b) If Purchaser does not elect to terminate this Agreement pursuant to this Section, Seller and Purchaser shall perform their respective obligations under this Agreement and Seller shall (i) deliver to Purchaser at the Closing any insurance proceeds and/or condemnation awards received by Seller as a result of any occurrence specified in this Section in respect of or allocable to the Premises; and (ii) assign to Purchaser all of Seller's right, title, and interest in any to any insurance proceeds and condemnation awards allocable to the Premises which have not yet been received by Seller.

 

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12. Broker . Seller and Purchaser warrant and represent to each other that neither has employed or engaged any real estate broker or agent in connection with this transaction that could give rise to a lien against the Premises. Each party agrees to hold the other party harmless from and against any and all demands, claims, causes of action, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) arising from the breach of such party’s representation or warranty contained in this Section. The provisions of this Section shall survive the Closing.

 

13. Notices . All notices and other communications required or permitted under this Agreement shall be in writing and shall be hand delivered, or given by certified mail, return receipt requested, or by Federal Express or another nationally recognized overnight courier service, addressed to the party to receive such notice at the address set forth in the preamble of this Agreement. Any such notice shall be deemed effective when personally delivered (in the case of hand delivery) or upon being deposited with such courier service or with the United States Postal Service. Any party may change the address to which its future notices shall be sent by notice given in the manner set forth above.

 

14. Miscellaneous .

 

(a) Any reference herein to time periods of less than seven (7) days shall be computed to exclude Saturdays, Sundays, and statutory holidays in the State of Maine. Any time period provided for herein which ends on a Saturday, Sunday, or statutory holiday in the State of Maine shall extend to midnight at the end of the next day that is not a Saturday, Sunday, or statutory holiday in the State of Maine.

 

(b) Purchaser or Purchaser’s agents shall have the right to enter upon the Real Property prior to the Closing for the purpose of making studies and inspections of the Real Property during normal business hours, so long as Purchaser or Purchaser’s agents do not unreasonably interfere with Seller’s use of the Real Property. Any such entry shall be at Purchaser’s own risk and Purchaser agrees to indemnify and hold Seller harmless from and against any property damage or personal injury or claim or lien against the Premises to the extent caused by any such access or inspection by Purchaser or its representatives.

 

(c) This Agreement shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective successors and assigns.

 

(d) All understandings, agreements, warranties, and representations, either oral or in writing, heretofore between the parties hereto with respect to the purchase and sale of the Premises are merged into this Agreement, which alone fully and completely expresses the parties’ agreement with respect to the transaction contemplated hereby. The representations and warranties set forth in this Agreement shall survive the Closing. This Agreement may not be modified in any manner except by an instrument in writing signed by Seller and Purchaser.

 

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(e) This Agreement, and all claims or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of or relate to this Agreement, shall be governed by and enforced in accordance with the internal laws of the State of Maine, including its statutes of limitations, without regard or reference to conflicts of law principles. In the event of a breach of this Agreement by any party, the other party shall be entitled to recover reasonable attorneys’ fees incurred in connection with the enforcement of its rights hereunder. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which, taken together, shall constitute a single instrument.

 

(f) Whenever the word “include,” “includes,” or “including” is used in this Agreement, it is deemed to be followed by the words “without limitation.” The terms “this Agreement,” “hereof,” “herein,” “hereby,” “hereunder” and similar expressions refer to this Agreement as a whole and not to any particular section of this Agreement unless the context otherwise requires. The word “person” includes any individual, corporation, firm, association, partnership (general or limited), joint venture, limited liability company, trust, estate or other legal entity. The section and sub-section headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Agreement.

 

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their undersigned representatives as of the date first written above.

 

  SELLER :
  KBS Builders, Inc.
     
  By: /s/David Noble
  Name:  David Noble
  Its: President
     
     
  PURCHASER:
  300 Park Street, LLC
     
  By: /s/ David Noble
  Name: David Noble
  Its: President

 

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Exhibit 10.6

 

LEASE AGREEMENT

 

THIS LEASE AGREEMENT (this “Lease”) is made this 3rd day of April, 2019 (the “Commencement Date”), by and between 947 Waterford Road, LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, Connecticut 06870 (“Landlord”), and KBS Builders, Inc., a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Tenant”). The parties hereby agree as follows:

 

LEASE INFORMATION AND DEFINITIONS

 

The following information and definitions are incorporated into and made a part of this Lease:

 

Leased Premises:

Certain land located in the Town of Waterford, County of Oxford, and State of Maine, and being more particularly described on Exhibit A , attached hereto and made a part hereof, together with all improvements thereon and all rights and easements appurtenant thereto (the “Leased Premises” or the “Real Property”).

 

Term:

The “Term” means:

 

(a)        an “Initial Term,” being a period commencing on the Commencement Date and ending at 5:00 p.m. on March 31, 2029, subject to adjustment and earlier termination as provided in the Lease; and

 

(b)        if Tenant duly exercises its option to extend the term of this Lease for one or both Extension Terms as provided in the Lease, then also each such Extension Term for which Tenant has duly exercised such option.

   
Extension Terms:

The Extension Terms shall be two (2) separate, consecutive sixty (60) month periods (hereinafter referred to as "First Extension Term” and the “Second Extension Term,” respectively, and also referred to in the singular as an “Extension Term” and in the plural as the “Extension Terms”), all on the terms and conditions set forth in the Lease.

 

Rent Commencement Date:

Tenant’s obligations to pay Base Rent shall commence on July 1, 2019 (the “Rent Commencement Date”), provided , however , that Tenant shall have the right, exercisable only by giving written notice to Landlord prior to May 1, 2019 (the “Rent Commencement Extension Notice”), to elect to defer the Rent Commencement Date until October 1, 2019.

 

 

 

Base Rent:

(a)       In the event that Tenant does not give Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit B , attached hereto and made a part hereof.

 

  (b) In the event that Tenant gives Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit C , attached hereto and made a part hereof.
   
  (c) The Base Rent for the Leased Premises for each year of each Extension Term shall be shall be an amount which is equal to 100% of the prevailing market rates in effect at the time of Tenant’ s exercise of its extension right for property comparable to the Leased Premises in the vicinity of the Leased Premises (and, for clarity, shall include annual escalators consistent with such prevailing market), all as determined by a licensed commercial real estate broker or appraiser doing business in the greater Portland, Maine vicinity and chosen by Landlord, but in no event shall Base Rent for any year of any Extension Term be less than the Base Rent payable for the immediately preceding year of the Term.
   
Rent:

The term “Rent” means Base Rent and all other sums payable by Tenant under this Lease.

 

Taxes:

Without limiting the “net” nature of this Lease as provided in herein, Tenant shall pay all Taxes (as defined in this Lease).

 

Utilities:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall contract for and pay for all Utilities (as defined in this Lease).

 

Operating Expenses; Maintenance and Repairs:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall pay 100% of all costs and expenses associated with the use, occupancy, operation, maintenance, repair, and/or replacement of the Leased Premises.

 

Permitted Use:

 

Subject in all events to the terms and conditions of the Lease, the Leased Premises shall be used only for purposes of a facility for the manufacture of modular homes and other components of modular home construction and associated administrative and general business offices of Tenant in connection therewith.

 

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1.        Leased Premises . Landlord leases to Tenant, in consideration of the Rent to be paid by Tenant and subject to the terms and conditions set forth herein, the Leased Premises. Tenant acknowledges that Tenant was the owner of the Leased Premises prior to the Commencement Date and has conveyed the Leased Premises to Landlord on the Commencement Date. Accordingly, Tenant agrees that Tenant accepts and is leasing the Leased Premises in their “as is” condition.

 

2.        Commencement and Term . The term of this Lease shall commence on the Commencement Date and shall be the Lease Term, unless earlier terminated or extended by mutual agreement of the parties or as otherwise provided in this Lease.

 

3.        Rent; Net Lease .

 

(a)       Tenant covenants and agrees to pay to Landlord at its address as set forth in the preamble to this Lease or at such other place as Landlord shall from time to time designate in writing, during the Lease Term, the Base Rent, without holdback or set-off, in advance, commencing on the Rent Commencement Date and continuing thereafter on the first day of each calendar month during the Lease Term. All other items of Rent shall be paid, without holdback or set-off, in accordance with the terms of this Lease. If any payment of Rent is received by Landlord more than five (5) days after the date when such payment is due, a late charge of five percent (5%) of the past due payment shall be assessed, due and payable immediately and without notice.

 

(b)       Landlord and Tenant acknowledge and agree that this Lease is intended to constitute, and shall constitute, an absolutely ‘net” Lease such that the Rent shall provide Landlord with a “net” return for the Term, free of all expenses and charges with respect to the Leased Premises, all of which shall be Tenant’s responsibility. Accordingly, Tenant shall pay as additional Rent and discharge, at the times specified herein, or if no time is specified, before failure to pay the same shall give rise to any interest or penalty or create any risk of lien or forfeiture, each and every item of expense, of every kind and nature whatsoever, foreseen or unforeseen, ordinary or extraordinary, related to or arising from the Leased Premises, or by reason of, or in any manner connected with or arising from, the development, leasing, operation, management, maintenance, repair, replacement, use, and/or occupancy of the Leased Premises.

 

4.       (Reserved.)

 

5.       (Reserved.)

 

6.        Permitted Use; Compliance with Laws .

 

(a)       Tenant agrees to use and occupy the Leased Premises for the Permitted Use, and for no other purpose without the written consent of Landlord, and further agrees not to use the Leased Premises for any purpose deemed extra hazardous or not covered by insurance. Tenant acknowledges and agrees that Landlord shall have the right to adopt reasonable rules and regulations for the use and/or occupancy of the Leased Premises and Tenant agrees that it shall at all times observe and comply with such rules and regulations.

 

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(b)       Tenant agrees to abide by and comply with all Laws (as hereafter defined) applicable to the Leased Premises and/or the use or occupancy of the Leased Premises. It is the responsibility of Tenant to determine all zoning information and secure all necessary permits, licenses, and approvals for Tenant’s use and occupancy of the Leased Premises. Without limiting the generality of the foregoing, Tenant agrees to maintain in full force and effect, during the Lease Term, at Tenant’s cost and expense, all permits, licenses, registrations, and approvals required under applicable Laws for the use and/or occupancy of the Leased Premises. Without limiting the “AS IS” nature of this Lease, Tenant acknowledges and agrees that Landlord has not made and is not making any representations or warranties as to the suitability of, or the ability to obtain any permits or approvals for, Tenant’s intended use of the Leased Premises.

 

(c)       As used in this Lease, the term “Laws” means all federal, state, municipal or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

 

7.        Taxes .

 

(a)       Tenant shall be responsible for the prompt payment of all taxes, levies, betterments, and assessments, and governmental impositions of every kind or nature, whether now existing or hereafter created, general or special, ordinary or extraordinary, foreseen or unforeseen, that may be charged, assessed, laid, levied, or imposed upon, or become a lien or liens against, the Leased Premises or this Lease, including any amount that Landlord may be required to pay to any governmental authority as sales tax, gross receipt tax, or any tax of like nature specifically measured as a percentage of, or fraction of, or other factors based upon the all or any portion of the Rent payable hereunder (whether in lieu of, or in addition to the current system of real estate taxation) (all amounts payable under this Section being referred to herein as “Taxes”).

 

(b)       Tenant shall pay all Taxes , at Landlord’s option, either (i) to Landlord as additional Rent in estimated monthly installments, with the actual amount of Taxes reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated Taxes exceeds the actual Taxes for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual Taxes for such annual period exceeds the estimated payments made by Tenant to Landlord; or (ii) to Landlord within thirty (30) days after Landlord makes demand therefor, with copies of any bills for Taxes; or (iii) directly to the taxing authority, in which event Tenant shall provide to Landlord evidence of the prompt payment of all Taxes prior to the date the same are due without the accrual of any interest on such Taxes.

 

8.        Utilities .

 

(a)       Tenant shall make arrangements for, and pay on or before the date the same become due, all charges for or relating to gas, oil, electricity, water, sewer, septic, telecommunications, and all other services used at or supplied to the Leased Premises (collectively, “Utilities”).

 

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(b)       Landlord shall in no way be liable for any loss, expense, or damage (whether direct or indirect) that Tenant may sustain or incur by reason of any change, failure, interference, disruption, interruption, or defect in the supply or character of any Utilities serving the Leased Premises, regardless of its duration, or if the quantity or character of Utilities become unavailable to the Leased Premises or no longer suitable for Tenant’s requirements. Additionally, any such change, failure, interference, disruption, interruption, defect, unavailability, or unsuitability mentioned in this Section shall not: (i) constitute an actual or constructive eviction of Tenant, in whole or in part; (ii) entitle Tenant to any abatement or diminution of Rent, or any other costs due from Tenant pursuant to this Lease; (iii) relieve or release Tenant from any of its obligations under this Lease; or (iv) entitle Tenant to terminate this Lease.

 

9.        Operation, Maintenance and Repairs .

 

(a)       Tenant agrees that from and after the Commencement Date, Tenant will keep neat and clean and maintain in good and safe order, condition and repair, and in compliance with all Laws the entirety of the Leased Premises, including any and all alterations or improvements to the Leased Premises occurring after the date of this Lease. Tenant agrees to pay the costs for cleaning and janitorial services relating to the Leased Premises (including trash removal and trash hauling), which services shall be provided or caused to be provided by Tenant. Tenant shall be responsible for the plowing, shoveling, and treatment of snow and ice and all grounds keeping, including all landscaping and sweeping of pavement and other hardscaped surfaces. Tenant shall be responsible for all items of maintenance and all repairs to and replacements (except as otherwise provided in Section 18) of all buildings and improvements and all Building Systems (as hereafter defined), and all foundations, structural supports, walls, ceilings, windows (including plate glass), siding, roof structure, roofing materials, doors, plate glass, driveways, parking areas, fences and signs located in, on or at the Leased Premises) that the Leased Premises may require from time to time during the Term, whether interior or exterior, structural or non-structural, ordinary or extra-ordinary, foreseen or unforeseen, all to keep the Leased Premises in good and safe order, condition, and repairs, and in at least as good condition as the Leased Premises are in on the Commencement Date. The term “Building Systems” means all heating systems, ventilating systems, air conditioning systems, fire alarm systems, sprinkler systems, and other life safety systems, septic systems, water supply systems (including any water treatment or filtration systems), plumbing systems, electrical systems, storm water management facilities, and all other systems located at or serving the Real Property.

 

(b)       Without limiting the generality of sub-section (a) of this Section, Tenant shall procure and maintain, with qualified vendors reasonably acceptable to Landlord, contracts providing for periodic inspections and maintenance of the heating, ventilating, and air conditioning (HVAC) systems, fire alarm, sprinkler, and life safety systems, the septic system, the crane(s) and related appurtenances in the building, at such intervals as are reasonably required by Landlord, but in all events at least annually.

 

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(c)       Without limiting the generality of sub-section (a) of this Section, Tenant shall promptly after the Commencement Date undertake all investigations (including an evaluation by a structural engineer and a roofing surveyor) with respect to, and promptly undertake all work necessary to repair, the roof (including roof framing) of the building on the Leased Premises and all damage and other adverse conditions associated with or arising out of the condition of the roof of the building, including any damage to the flooring, walls, siding, windows, ceilings (including drop ceilings), and trim of the building and any Building Systems that may have been adversely affected by any damage to or leaks in the roof of the Building. Tenant shall keep Landlord informed as to the results of all inspections and shall provide all plans and specifications for the foregoing repair work, which will be subject to the approval of Landlord, which will not be unreasonably withheld.

 

10.        Alterations, Renovations and Improvements . Tenant shall not make any alterations, renovations or improvements to the Leased Premises without obtaining Landlord’s prior written consent to the plans and specifications therefor and the contractor(s) to be retained by Tenant to perform such work, which shall not be unreasonably withheld, conditioned, or delayed in the case of cosmetic renovations that do not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, but otherwise shall be in Landlord’s sole discretion. Prior to any contractor or subcontractor (of any tier) providing or furnishing any labor, materials, or services in connection with any alterations, renovations, or improvements, Tenant shall obtain and furnish to Landlord the name and address of each such contractor and subcontractor. In addition, prior to any such labor, materials, or services being provided or furnished, Tenant shall furnish to Landlord a mechanic’s lien waiver and notice to prevent lien in a form prescribed by Landlord, duly executed by each such contractor or subcontractor who will furnish or provide labor, materials, and/or services. Tenant shall ensure that all such alterations, renovations and improvements are performed in a good and workmanlike and in compliance with all applicable Laws. In the event any lien is filed against the Leased Premises in connection with or arising out of any work performed at or materials, labor or other services supplied to the Leased Premises, Tenant shall cause the same to be discharged within thirty (30) days after such lien is filed. Tenant shall indemnify and hold Landlord harmless from and against all claims, demands, liabilities, liens, losses, costs and expenses (including reasonable attorneys’ fees) which may arise or be incurred by Landlord as a direct or indirect result of or in connection with such alterations, renovations and improvements, and Tenant shall be responsible for all costs, liabilities, and expenses arising out of such alterations, renovations and/or improvements. All alterations, renovations and improvements which may be made or installed by or on behalf of Tenant upon the Leased Premises and which in any manner are attached to the floors, walls or ceilings shall, at Landlord's option, remain upon the Leased Premises, and, upon termination of this Lease, shall be surrendered with the Leased Premises as a part thereof without disturbance, molestation or injury, provided, however, that Tenant’s furniture, equipment, other personal property, and trade fixtures (which, for avoidance of doubt, shall in no event include the crane(s) or related appurtenances located at the Leased Premises) may be removed by Tenant from the Leased Premises upon the expiration or termination of this Lease, subject to the provisions relating to removal thereof as provided in this Lease.

 

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11.        Signs . Tenant shall have the right to maintain the existing signage at the Real Property as of the Commencement Date and shall have the right to install additional signage that does not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, provided, however, that all signage shall be at Tenant’s sole cost and expense, and shall comply with all applicable Laws.

 

12.        Surrender; Holdover . Tenant shall vacate and surrender the Leased Premises to Landlord at the expiration or sooner termination of the Lease Term and the same shall be in the same condition as Tenant is required to maintain the same during the Lease Term, free of all of Tenant’s personal property except as may otherwise be provided herein, “broom clean,” and otherwise in accordance with the provisions of the Lease. Tenant shall have no right to holdover beyond the expiration of the Lease Term. If Tenant continues to occupy the Leased Premises after the end of the Lease Term, such continued occupancy shall be deemed a tenancy-at-sufferance even if Landlord accepts any payment from Tenant, but in the event that a court of competent jurisdiction deems such acceptance of a payment to constitute acceptance of “rent”, such acceptance shall create no rights in Tenant beyond a tenancy-at-will under the terms and conditions stated herein but at a Base Rent rate equal to one hundred fifty percent (150%) of the Base Rent applicable immediately preceding the end of the Lease Term, plus all additional Rent, until (i) Tenant shall vacate the Leased Premises; (ii) the termination of the tenancy-at-will; or (iii) Landlord shall give notice of a different rental amount. Nothing contained in this Section shall be deemed to (a) constitute consent by Landlord to such occupancy or holdover by Tenant; (b) confer any rights on Tenant as more than a tenant-at-sufferance or, if Landlord accepts any rental payments applicable to such period of holding over, a tenant-at-will; or (c) relieve Tenant from liability for damages suffered by Landlord as a result of such holding over.

 

13.        Removal of Tenant’s Property . Tenant’s trade fixtures, personal property, furniture and equipment, other than those items which are to remain or which Landlord elects to have remain at the Leased Premises as provided in Section 10 of this Lease, may be removed by Tenant at the termination of this Lease, provided (a) Tenant is not then be breach of any provision of this Lease; (b) such removal shall not cause any material damage to any portion of the Leased Premises, and any other damage created by such removal shall be repaired by Tenant at Tenant's expense prior to the expiration of the Lease Term to at least as good condition as existed when possession of the Leased Premises was delivered to Tenant; and (c) such removal shall be made before the termination of the Lease Term.

 

14.        Subletting and Assignment . Tenant shall not assign this Lease, in whole or in part, or sublet the Leased Premises or any portion thereof, or encumber the leasehold interest created by this Lease in any manner without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion during the first twenty-four full calendar months of the Term, and thereafter will not be unreasonably withheld. No assignment or sublease shall operate to release Tenant from any of its obligations under this Lease. Each sublease of the Leased Premises or any portion thereof must contain a release of and waiver of claims against Landlord and the other Releasees (as that term is defined in this Lease), in form and content acceptable to Landlord, and must require the subtenant’s property insurer to issue in favor of Landlord and the other Releasees waiver of subrogation rights endorsements to all policies of property insurance carried in connection with the Leased Premises and the contents thereof. Every transfer by levy or sale on execution, or other legal process, every transfer in bankruptcy, every transfer by merger, consolidation, or by operation of Law, every transfer of a controlling interest in Tenant, and every transfer under any compulsory procedure or order of court shall be deemed to constitute an “assignment” within the meaning of this Lease. Any attempted assignment or sublease in violation of this Section shall, at Landlord’s option, be void and shall constitute a default under this Lease. Consent by Landlord to an assignment or sublease in one instance shall not operate to release the requirement that consent from Landlord be obtained for any further or subsequent assignment or sublease. Tenant shall pay all fees and expenses, including reasonable attorneys’ fees, incurred by Landlord in connection with any proposed subletting or assignment, irrespective of whether Landlord’s consent is in fact granted.

 

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15.        Indemnification and Insurance .

 

(a)       Tenant agrees to maintain in full force during the Lease Term insurance as follows:

 

(i)        commercial general liability insurance, written on an occurrence basis, with a deductible in an amount not to exceed $10,000.00, and providing:

 

(A)        minimum limits of (y) $1,000,000.00 per occurrence with $3,000,000.00 annual aggregate limit for bodily injury (including death) and property damage; and (z) $3,000,000.00 in the annual aggregate with respect to products and completed operations;

 

(B)        coverage for damages arising out of bodily injury (including death) sustained by any person or persons or arising out of damage to or destruction of property;

 

(C)       coverage for damages arising out of premises liability, personal injury and advertising injury;

 

(D)       pollution liability coverage for sudden and accidental pollution;

 

(E)       for extension of such coverage to include liability for the operation of non-owned motor vehicles;

 

(F)       specific coverage for Tenant’s indemnification obligations under this Lease (but neither this provision nor such coverage shall be deemed to limit any of Tenant’s obligations under this Lease);

 

(G)        that Tenant’s commercial general liability insurance is provided on a primary and non-contributory basis;

 

(H)       that Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time are named as additional insureds by an endorsement provided on ISO Form 2026 (1185) or its equivalent, without modification, or such other endorsement as is acceptable to Landlord, acting reasonably; and

 

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(I)       for waiver of subrogation in favor of Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

(ii)       Automobile liability insurance covering all motor vehicles owned, leased, or licensed by Tenant, covering injury to or death of one or more persons or damage to or destruction of property, with a minimum limit of liability of $3,000,000.00 for each accident.

 

(iii)       Workers compensation insurance in accordance with the requirements of all applicable Laws, and employers liability insurance with limits of at least $1,000,000.00, with such workers compensation insurance and employers liability insurance providing for waiver of subrogation in favor of Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

(iv)       Umbrella excess liability insurance in a minimum amount of $10,000,000.00, on a following form basis over the insurance described in clauses (i) through (iii), above.

 

(v)       Special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all personal property and trade fixtures owned by or within the care, custody or control of Tenant, with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such property, without co-insurance provisions, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as additional insured(s). Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

(vi)       Until such time, if any, as Landlord elects to carry property insurance for the buildings and improvements located on the Leased Premises, special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all buildings and improvements (including fixtures) located on the Leased Premises, with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such buildings and improvements, and in all events sufficient at all times to avoid causing the insured to be or become a co-insurer, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as loss payee(s) and additional insured(s). Notwithstanding the foregoing, the insurance policy(ies) required by this sub-section may insure the building on an actual cash value basis during those portions of the Term for which Landlord has provided prior consent to the policy(ies) providing coverage on such basis. Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

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(vii)       business interruption insurance covering all of Tenant’s obligations under this Lease with respect to the payment of Rent for a period of at least eighteen (18) months.

 

(viii)       Such other insurance policies, such other endorsements, such other deductibles, and/or such other insurance policy limits as may from time to time be reasonably required by Landlord, provided that, at the time, such other insurance policies, endorsements, deductibles, and/or insurance policy limits are commonly carried for premises and/or buildings or improvements similar in construction, design, general location, use, operation, and occupancy to those located on or appurtenant to the Leased Premises or for operations similar to those conducted on or from the Leased Premises.

 

(b)       Without limiting the exculpatory provisions of this Lease, each policy of property insurance maintained by Tenant under this Lease shall contain waivers of subrogation in favor of Landlord and all other Releasees.

 

(c)       All insurance required to be obtained and maintained by Tenant pursuant to this Section must be with insurers authorized to transact insurance business and cover risks in the State of Maine and that are rated "A-" or better by A.M. Best Company, Inc. or other insurance companies of recognized responsibility acceptable to Landlord, acting reasonably.

 

(d)       The policies of insurance required to be maintained by Tenant under this Lease shall be endorsed to require that each policy will not be cancelled or materially changed without at least thirty (30) days prior written notice to Landlord.

 

(e)       Tenant shall deliver to Landlord copies of each policy of insurance (including all endorsements) required to be maintained by Tenant under this Lease or such other evidence of each such policy of insurance (and all required endorsements) as is acceptable to Landlord, acting reasonably.

 

(f)       If Tenant fails to obtain, maintain and/or pay for the insurance required by this Lease at the times and for the amounts and duration specified herein, Landlord has the right, but not the obligation, at any time and from time to time, to obtain such insurance and/or pay the premiums for such insurance, without limiting any other rights or remedies available to Landlord for such failure. In such event, Tenant shall repay Landlord, immediately upon demand, all sums so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith (including reasonable attorneys’ fees), all without prejudice to any other rights or remedies available to Landlord.

 

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(g)       Landlord shall have the right, at any time during the Term, to elect, by giving written notice to Tenant, to carry property insurance for the buildings and improvements located on the Leased Premises, in which event, Tenant shall pay to Landlord the amount of all premiums for such property insurance procured and maintained by Landlord with respect to the Real Property. Tenant shall pay such amounts to Landlord in estimated monthly installments, with the actual amount of incurred by Landlord for such premiums being reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated premiums exceeds the actual premiums for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual premiums for such annual period exceeds the estimated payments made by Tenant to Landlord.

 

(h)       Tenant acknowledges and agrees that such property insurance as Landlord elects to purchase with respect to the Real Property shall be for the sole benefit of Landlord and that such insurance shall not cover any personal property, trade fixtures, leasehold improvements, or other property or appurtenances owned by or within the care, custody, or control of Tenant, or otherwise located in the Leased Premises (collectively, “Tenant’s Property”) and that in the event of damage to or loss of any of Tenant’s Property, neither Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), nor any of the shareholders, members, directors, managers, officers, employees, or agents of Landlord or any such mortgagee(s) (each in the singular “Releasee”, and in the plural, “Releasees”) shall have any obligation to repair or replace the same. Notwithstanding any exception to Tenant’s indemnification obligations under this Lease, Tenant does hereby expressly release all Releasees of and from, and agrees to indemnify, hold harmless, and defend Releasees from and against, any and all claims for damages to or loss of any of Tenant’s Property, regardless of the cause thereof, including, damage or loss due to any Releasee’s negligence.

 

(i)       Tenant shall indemnify and hold all Releasees harmless and, if requested by Landlord, defend such Releasee(s) with counsel reasonably satisfactory to Landlord, from and against any and all liabilities, losses, claims, causes of action, damages, costs, and expenses (including reasonable attorney’s fees) incurred by or threatened against any Releasee arising out of (i) any occurrence on the Leased Premises or the use of the Leased Premises by Tenant, its employees, agents, licensees, or invitees, except to the extent caused by the negligence or willful misconduct of Landlord (but such exception shall not apply to limit the application of sub-section (h) of this Section); or (ii) Tenant’s breach of any provision of this Lease. Tenant agrees that the foregoing agreement to indemnify, defend, and hold harmless extends to liabilities, losses, claims, causes of action, damages, costs and expenses (including reasonable attorney’s fees) arising out of claims of Tenant's employees without regard to any immunity, statutory or otherwise, including any immunity under the workers compensation Laws of Maine or any other applicable jurisdiction, which immunity Tenant hereby waives, but only for the purposes of Tenant’s obligations to the Releasees under this sub-section. Tenant's obligations under this sub-section shall survive the termination of this Lease.

 

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16.        Hazardous Materials . Tenant covenants and agrees that Tenant will not permit any Hazardous Substances (as hereafter defined) to be stored, generated, or released from the Leased Premises, other than Hazardous Substances incidental to Tenant’s use, maintenance, and operation of the Leased Premises for the Permitted Use provided that Tenant shall store, generate, handle, and dispose of all such Hazardous Substances in full compliance with all applicable laws. Tenant hereby covenants and agrees to indemnify, hold harmless, and, if requested by Landlord, defend, Landlord from and from and against any and all demands, claims, causes, of action, losses, liabilities, damages, fines, costs, and expenses (including reasonable attorneys’ fees, court costs and clean-up costs) that may arise out of any Hazardous Substances located at or generated or released from the Leased Premises, irrespective of whether first occurring prior to or after the Commencement Date. The term “Hazardous Substances” means any flammables, explosives, radioactive materials, gasoline, oil, other petroleum products, lead paint, urea formaldehyde (including urea formaldehyde foam insulation), asbestos, asbestos containing materials, polychlorinated biphenyls, and any other hazardous materials, hazardous waste, hazardous matter, hazardous or toxic substances, chemical pollutants, and other materials or substances defined in or regulated by Environmental Laws. The term “Environmental Laws” means (A) the Clean Water Act; (B) the Clean Air Act; (C) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act; (D) the Toxic Substance Control Act; (E) the Resource Conservation and Recovery Act; (F) the Hazardous Materials Transportation Act; and/or (G) any similar state Laws regulating pollution or contamination of the environment The obligations of Tenant under this Section shall survive the termination of this Lease.

 

17.        Right to Enter . Tenant agrees to permit Landlord or its duly authorized agents to enter on the Leased Premises during Tenant's normal business hours, with reasonable prior notice, to examine the condition of said Leased Premises, exercise any rights of Landlord under this Lease, and/or to show the same to prospective tenants, lenders, or purchasers, provided such access to the Leased Premises shall not unnecessarily interfere with Tenant's use of the Leased Premises or the conduct of Tenant's business activities thereon. Notwithstanding the foregoing, Landlord shall have the right (but not the obligation) to enter the Leased Premises without prior notice in the event of an emergency in which prior notice is not practicable in the circumstances.

 

18.        Total or Partial Destruction .

 

(a)       In the event the improvements on the Real Property (including any Building Systems) are damaged or destroyed by fire or other peril (a “Casualty”), Tenant shall give Landlord notice of such Casualty as soon as reasonably possible after the Casualty. Landlord shall have the right to elect whether to have such improvements rebuilt or restored. In the event that Landlord elects not to have the improvements rebuilt or restored, and the nature of the Casualty is such as would, absent such rebuilding or restoration, materially impair Tenant’s ability to use and occupy such Leased Premises in substantially the same manner as they were used prior to the Casualty, this Lease shall terminate effective as of the date of the Casualty. In the event that Landlord elects to have the improvements rebuilt or restored, this Lease shall remain in effect without reduction or abatement of Rent, and the following provisions shall apply:

 

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(i)       Landlord shall, with reasonable promptness rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements, provided , however , that in no event shall Landlord be obligated to expend for any such rebuilding or restoration an amount in excess of the insurance proceeds actually collected by Landlord on account of the Casualty, less the costs and expenses (including reasonable attorneys’ fees) incurred by Landlord in collecting such proceeds.

 

(ii)       Notwithstanding the preceding clause (i), Landlord shall have the right to elect, by giving written notice to Tenant, to have Tenant rebuild or restore the Leased Premises, in which event Tenant shall, with reasonable promptness, and in all events within twelve (12) months of the date of Landlord’s election notice, rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements. The selection of all engineers, architects, and contractors engaged in connection with such rebuilding or restoration and all plans and specifications for such rebuilding or restoration, shall be subject to review and approval by Landlord. In the event that Landlord makes the election to have Tenant rebuild or restore as provided in this clause (ii), all proceeds payable by reason of any Casualty under all applicable policies of insurance (whether Tenant is carrying such insurance, or Landlord has elected to do so as provided in this Lease) shall be paid to Landlord or its mortgagee, and such proceeds will be held by Landlord or its mortgagee in an interest-bearing account and, provided Tenant is not in breach of this Lease, shall be made available for rebuilding or restoring the improvements, and shall be paid by Landlord (or such mortgagee) from time- to-time during the progress of construction for the costs of such reconstruction or repair, all subject to and in accordance with reasonable terms, conditions, and construction disbursement procedures specified by Landlord and/or such mortgagee. Any excess proceeds of insurance (and accrued interest) remaining after the completion of the restoration or reconstruction of the Leased Premises shall be paid to Landlord.

 

(b)       (Reserved.)

 

(c)       Tenant shall be responsible for all insurance deductibles applicable to any Casualty affecting any of the improvements on the Real Property (including Building Systems).

 

(d)       The provisions of this Section shall be subject and subordinate to the provisions of any mortgage now or hereafter placed upon the Real Property and the requirements of any mortgagee holding such mortgage.

 

19.        Condemnation .

 

(a)       “Condemnation” means any taking of title to or any interest in the Leased Premises or any part thereof or any other property used in connection with the Leased Premises (including for ingress, egress, parking, septic service, water supply or other services or utilities) by exercise of any right of eminent domain by, or by any similar proceeding or act of, any person having the power and legal authority to do so (or by purchase in lieu thereof). For the purposes of this definition, the effective date of any Condemnation shall be deemed to be the later of: (i) the date when title to the Leased Premises or part thereof or such other property is transferred by such proceeding or act of the condemning authority, and (ii) the date when Tenant o is no longer permitted to occupy the Leased Premises or to use such other property.

 

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(b)       “ Substantial Condemnation ” means any Condemnation that affects all or a substantial portion of the Leased Premises or any Condemnation that has or is reasonably likely to have a materially adverse effect on any business operations then being conducted on the Leased Premises. Tenant may waive its right to treat as a Substantial Condemnation any Condemnation that would otherwise qualify as such.

 

(c)       “Insubstantial Condemnation” means any Condemnation that is not a Substantial Condemnation.

 

(d)       If a Substantial Condemnation occurs, this Lease shall terminate upon the effective date of the Substantial Condemnation.

 

(e)       If an Insubstantial Condemnation occurs, then this Lease shall continue in full force and effect without reduction or abatement of Rent.

 

(f)       In the event of any Condemnation, Landlord shall be entitled to receive and retain the amounts awarded for the Leased Premises, and Tenant shall be entitled to receive and retain any amounts which may be specifically awarded to it in any such condemnation proceedings because of its business loss or the taking of its trade fixtures, furniture, or other property.

 

20.        Force Majeure . In any case where either party is required to perform any act pursuant to this Lease, except for Tenant’s monetary obligations hereunder, the time for the performance thereof shall be extended by a period of time equal to the period of any delay caused by or resulting from an act of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of energy or labor, government regulations, or delays caused by one party to the other, whether such period be designated by a fixed date, a fixed time, or as a reasonable date or time.

 

21.        Quiet Enjoyment . Tenant, on paying the Rent and performing and observing the covenants in this Lease, may hold and enjoy the Leased Premises for the Term without unreasonably interference from any person claiming by, through, or under Landlord, subject and subordinate to all provisions of this Lease.

 

22.        Default.

 

(a)       In the event that:

 

(i)       Tenant shall fail to pay when due the Rent or any other sums payable hereunder when due and such failure remains uncured for five (5) days after Landlord delivers a default notice to Tenant for such failure to pay rent; or

 

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(ii)       any petition in bankruptcy shall be filed by Tenant or any guarantor hereof or other petition or proceeding shall be filed or commenced by Tenant or any guarantor hereof to declare Tenant insolvent, or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations, or Tenant or any such guarantor admits its inability to pay its debts, or Tenant or any such guarantor makes an assignment for the benefit of creditors; or

 

(iii)       any bankruptcy petition or proceeding shall be filed against Tenant or any guarantor hereof or to otherwise declare Tenant or any guarantor hereof bankrupt or insolvent or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations or a receiver, trustee or other similar type of appointment or court appointee or nominee is appointed for Tenant or any such guarantor or any of the property of Tenant or any such guarantor, and such petition, appointment or proceeding is not dismissed within sixty (60) days after it is commenced; or

 

(iv)       the leasehold interest of Tenant is levied upon or attached by process of law, including the filing of any mechanic’s lien, and such levy, lien, or attachment is not dissolved within thirty (30) days after it is made; or

 

(v)       Tenant shall abandon the Leased Premises during the Lease Term; or

 

(vi)       Tenant shall assign this Lease or sublet any portion of the Leased Premises, or attempt to do either of the foregoing, in violation of this Lease; or

 

(vii)       Tenant violates or fails to observe or comply with any Laws applicable to the Leased Premises, Tenant’s use thereof, or Tenant's operations, activities or conduct of business at or from the Leased Premises; or

 

(viii)       any other event, occurrence, act, or omission described in any provision of this Lease as constituting a “default” or an “Event of Default” occurs;

 

(ix)       Tenant shall neglect or fail to perform or observe any of the other covenants, terms, provisions or conditions contained in this Lease and, if the neglect or failure is capable of being cured, such neglect or failure continues for more than thirty (30) days after written notice thereof ( provided , however , that if such neglect or failure is capable of being cured, but is not capable of being cured within said thirty (30) day period, then Tenant shall have such additional period of time, not to exceed an additional sixty (60) days, as is reasonably necessary to cure the same provided Tenant commences to cure within said thirty (30) day period and diligently and continuously prosecutes the cure to completion); or

 

(x)       there is a default by Tenant under (A) that certain Lease Agreement of even or near date herewith between Tenant and 300 Park Street, LLC pertaining to property located in the Town of Paris, County of Oxford, and State of Maine; and/or (B) that certain Lease Agreement of even or near date herewith between Tenant and 56 Mechanic Falls Road, LLC, pertaining to property located in the Town of Oxford, County of Oxford, and State of Maine, and any such default continues beyond the expiration of applicable notice and cure periods (if any), then, and in any of said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), and without limitation of any other remedies that might be available to Landlord under this Lease, at law, or in equity, Landlord lawfully may, immediately or at any time thereafter, terminate this Lease by sending written notice of termination to Tenant, or, subject to compliance with applicable Laws, enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, and expel Tenant and those claiming through or under it and remove it or their effects without being deemed guilty of any manner of trespass, in each case without prejudice to any rights or remedies which might otherwise be available to Landlord for collection of Rent and other damages for breach of covenant, and upon entry as aforesaid or upon sending of such notice, this Lease shall terminate.

 

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(b)       Without limiting other remedies of Landlord at law or in equity for any breach of or on account of termination of this Lease, Tenant covenants that in case of such termination under sub-section (a) of this Section, Tenant shall pay to Landlord the unpaid Rent owed to Landlord through the time of termination, plus interest thereon at the rate of 18% per annum from the date the same was due until paid; and (ii) at the election of Landlord, either:

 

(1)       the present value of a sum which, at the time of such termination of this Lease is equal to (A) the aggregate of the Rent which would have been payable by Tenant for the period commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant; minus (B) the fair market rental value of the Leased Premises (after deducting reasonable projections for Landlord’s costs and expenses of re-letting the Leased Premises, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant); or

 

(2)       for the period of time commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant hereunder, the difference, if any, between the Rent which would have been due had there been no such termination and the amount being received by Landlord as rent from a replacement Tenant of Leased Premises, if any. In addition, Tenant shall pay to Landlord all costs and expenses of such re-letting, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant.

 

(c)       If Tenant shall default in the performance or observance of any covenant, agreement, or condition in this Lease contained on its part to be performed or observed and shall not cure any such default as provided herein, Landlord may, at its option, without waiving any claim for damages or any other right or remedy for breach of this Lease, at any time thereafter, cure such default. Any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant agrees to immediately reimburse Landlord therefor, as additional Rent.

 

(d)       Tenant shall pay all reasonable attorneys’ fees incurred by Landlord in connection with the enforcement of Tenant’s obligations under this Lease.

 

- 16 -

 

(e)       Landlord shall in no event be in default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform, or failed diligently to attempt to perform, such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation.

 

(f)       In no event shall Landlord be liable to Tenant for incidental, consequential, or punitive damages in connection with any matter arising out of this Lease or the Leased Premises. Without in any way limiting or impairing the effect of the other provisions of this Lease, Tenant shall neither assert nor seek to enforce any claim arising out of this Lease or out of the use or occupancy of the Leased Premises against Landlord, its shareholders, directors, officers, employees, or agents, or any of its or their assets other than the value of Landlord’s interest in the Leased Premises and Tenant agrees to look solely to such interest and insurance coverage for the satisfaction of any claim arising out of this Lease or out of the use or occupancy of the Leased Premises.

 

23.        Sale or Mortgage; Estoppel; Subordination .

 

(a)       Nothing contained in this Lease shall limit Landlord's right to sell, mortgage, or otherwise encumber its fee interest in the Leased Premises, or affect Landlord's right to assign this Lease or the Rent payable under this Lease, whether as further security under a fee mortgage or otherwise. Any such assignment of this Lease or of the Rent payable under this Lease shall be honored by Tenant.

 

(b)       In the event Landlord shall sell, transfer, or otherwise convey the Leased Premises, Landlord, upon the written assumption by the transferee of the obligations arising hereunder after the date of such transfer, shall be entirely freed and relieved of all covenants and obligations of Landlord hereunder. Nothing in the preceding sentence shall be construed to impair Tenant’s leasehold interest under this Lease so long as Tenant performs and observes the covenants and terms of this Lease on its part to be performed and observed.

 

(c)       This Lease shall, at Landlord’s option, be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the Leased Premises, and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination, Tenant's right to quiet possession of the Leased Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the Rent and observe and perform all of the provisions of this Lease. If any mortgagee, trustee, or ground lessor shall elect to have this Lease made prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior to or subsequent to the date of said mortgage, deed of trust, or ground lease or the date of recording thereof. Tenant agrees to execute any documents required to effectuate an attornment, a subordination, or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Tenant's failure to execute such documents within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

 

- 17 -

 

(d)       At any time, and from time to time, upon the written request of Landlord or any mortgagee or prospective purchaser of the Leased Premises, Tenant, within ten (10) business days after such written request, agrees to execute, acknowledge and deliver to Landlord and/or mortgagee, without charge, an estoppel certificate which shall contain (i) a certification that this Lease is unmodified and in full force and effect or, if modified, a statement of the nature of any such modification and a certification that this Lease, as so modified, is in full force and effect; (ii) a certification of the date to which the Rent payable by Tenant are paid (including any payments in advance); (iii) a certification that Tenant is not in default hereunder and that there are not, to Tenant's knowledge, any uncured events of default on the part of Landlord hereunder, or a specification of such events of default if any are claimed by Tenant; and (iv) such other commercially reasonable certifications as are identified in such request. Tenant's failure to deliver such estoppel certificate within the time frame set forth above shall, at Landlord’s option, constitute an Event of Default hereunder and shall, at Landlord’s option, be conclusive proof that this Lease is in full force and effect without modification except as may be represented by Landlord, that there are no uncured defaults in Landlord's performance of Landlord's obligations under this Lease, and that not more than one month's Rent has been paid in advance.

 

(e)       If Landlord desires to finance, refinance, or sell the Leased Premises, Tenant hereby agrees to deliver to any lender or purchaser designated by Landlord, and cause any guarantor to so deliver, such financial statements and other financial information pertaining to Tenant and such guarantor as may be reasonably required by such lender or purchaser. Tenant's failure to provide such information or cause such information to be provided within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

 

24.        Notices . Any notice, request, demand, approval or consent given or required to be given under this Lease shall be, unless otherwise stated, in writing and shall be deemed to have been given (i) when hand delivered to the other party; or (ii) on the day on which the same shall have been mailed by United States registered or certified mail, return receipt requested, with all postage prepaid, or by Federal Express or similar nationally-recognized overnight courier service that provides evidence of delivery, to the address of the party to receive such notice as set forth in the preamble hereof, provided that either party may, by such manner of notice, add or substitute one or more persons or addresses for provision of such notice.

 

25.        Tenant Representations .

 

(a)       Neither Tenant nor any key personnel of Tenant nor any of Tenant’s underlying beneficial owners have engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any U.S., international or other anti-money laundering regulations or conventions, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder (collectively, the “ Patriot Act ”), or any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”); or (ii) in contravention of Executive Order No. 13224 issued by the President of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time (“ Executive Order 13224 ”); or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time.

 

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(b)       Neither Tenant nor any key personnel of Tenant nor any of the underlying beneficial owners of Tenant is or will be a person or entity (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224; or (ii) whose name appears on OFAC’s most current list of “Specially Designated Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf ); or (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in Executive Order 13224; or (iv) who has been associated with or is otherwise affiliated with any entity or person listed above.

 

(c)       Tenant represents that it has all requisite power and authority to enter into this Lease and the person executing this Lease on behalf of Tenant represents that he or she has all requisite power and authority to do so.

 

26.        Miscellaneous Provisions .

 

(a)        Invalidity of Particular Provisions . If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by applicable Laws.

 

(b)        Governing Law . This Lease, and all claims or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of or relate to this Lease, shall be governed by and enforced in accordance with the internal Laws of the State of Maine, including its statutes of limitations, without regard or reference to conflicts of law principles.

 

(c)        Interpretation . Whenever the word “include,” “includes,” or “including” is used in this Lease, it is deemed to be followed by the words “without limitation.” The terms “this Lease,” “hereof,” “herein,” “hereby,” “hereunder” and similar expressions refer to this Lease as a whole and not to any particular section of this Lease unless the context otherwise requires. The word “person” includes any individual, corporation, firm, association, partnership (general or limited), joint venture, limited liability company, trust, estate or other legal entity. The section and sub-section headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Lease. Whenever in this Lease provision is made for the doing of any act by any party, it is understood and agreed that said act shall be done by such party at its own cost and expense, unless a contrary intent is expressed.

 

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(d)        Entire Agreement; Binding Effect . All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by agreement in writing between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change, or modify any of the provisions hereof. All rights, obligations and liabilities contained herein given to, or imposed upon, Landlord and Tenant shall extend to and bind the several respective administrators, trustees, receivers, legal representatives, successors, heirs and permitted assigns of Landlord and Tenant. If the “Tenant” under this Lease consists of more than one person or entity, each such person and/or entity shall be bound jointly and severally by the terms, covenants and agreements herein and jointly and severally liable for all obligations arising hereunder.

 

(e)        Language . Words of any gender used in this instrument shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires.

 

(f)        Recording; Notice of Lease . Landlord and Tenant agree that this Lease shall not be recorded. The parties agree that at the request of either party, they will execute, acknowledge, and deliver a notice or memorandum of this Lease in recordable form for recording in the Oxford County Registry of Deeds. The requesting party shall bear the expense of recording such notice or memorandum. The Memorandum of Lease shall not be construed to vary the terms and conditions hereof. Landlord and Tenant also agree that, upon the request of either party, they will execute, acknowledge, and deliver a commercially reasonable instrument in recordable form with respect to the termination date of this Lease.

 

(g)        Timeliness of Landlord’s Notices . Landlord's failure during the Lease Term to prepare or deliver any of the statements, notices, or bills, or invoices for any sum payable by Tenant under this Lease shall not in any way cause Landlord to forfeit or surrender its rights to collect any amount that may have become due and owing from Tenant during the Lease Term.

 

(h)        Waiver of Jury Trial . Tenant, for itself and its heirs, successors, and assigns, does hereby WAIVE THE RIGHT TO A TRIAL BY JURY in any action or proceeding based upon, or related to, the subject matter of this Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant and Tenant acknowledges that neither Landlord nor any person acting on behalf of Landlord has made any representations of fact to induce this waiver of trial by jury or in any way to modify or nullify its effect. Tenant further acknowledges that it has been represented (or has had the opportunity to be represented) in the signing of this Lease and in the making of this waiver by independent legal counsel, selected of its own free will, and that it has had the opportunity to discuss this waiver with counsel. Tenant further acknowledges that it has read and understands the meaning and ramifications of this waiver provision.

 

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27.       (Reserved.)

 

[Signature Page(s) and Guaranty Follow]

 

- 21 -

 

IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their duly authorized undersigned representatives as an instrument under seal as of the day and year first written above.

 

WITNESS:   LANDLORD:
    947 Waterford Road, LLC
       
    By: /s/ David Noble
    Name:  David Noble
    Title: President

 

- 22 -

 

 

 

    TENANT:
    KBS Builders, Inc.
       
    By: /s/ Daniel M. Koch
    Printed Name:  Daniel M. Koch
    Its: President

 

GUARANTY

 

For value received, and in consideration of and as an inducement to Landlord to enter into the foregoing Lease (the “Lease”) with Tenant, the undersigned, ATRM Holdings, Inc. (“Guarantor”), does hereby unconditionally guaranty to Landlord the complete and due performance and observation of each and every agreement, covenant, term, and condition of the Lease to be performed or observed by Tenant, including, without limitation, the payment of all Rent required under the Lease. The validity of this Guaranty and the obligations of the Guarantor hereunder shall not be terminated, affected, or impaired by reason of the granting by the Landlord of any indulgences to the Tenant. This Guaranty shall remain and continue in full force and effect with respect to any and all renewals, modifications, or extensions of the Lease, irrespective of whether Guarantor shall have received any notice of or consented to such renewal, modification, or extension. The liability of the Guarantor hereunder shall be primary, and in any right of action that shall accrue to the Landlord under the Lease or applicable law, the Landlord may proceed against Guarantor without having commenced any action against or having obtained any judgment against Tenant and/or may proceed against Guarantor and Tenant, jointly and severally. Guarantor hereby waives all guaranty and suretyship defenses. All of the terms and provisions of this Guaranty shall inure to the benefit of the successors and assigns of the Landlord and shall be binding upon the successors and assigns of Guarantor. Capitalized terms that are used, but not defined, in this Guaranty shall have the meaning ascribed thereto in the Lease.

 

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as an instrument under seal as of the date of the Lease.

 

    GUARANTOR:
    ATRM Holdings, Inc.
       
    By: /s/ Daniel M. Koch
    Printed Name:  Daniel M. Koch
    Its: President and Chief Executive Officer

 

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List of Exhibits

 

Exhibit A – Description of the Leased Premises

 

Exhibit B – Base Rent if Tenant does not give a timely Rent Commencement Extension Notice

 

Exhibit C – Base Rent if Tenant does give a timely Rent Commencement Extension Notice

 

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EXHIBIT A

 

(Description of Leased Premises)

 

*

 

 

EXHIBIT B

 

(Base Rent if Tenant does not give a timely Rent Commencement Extension Notice)

 

Months Annual Rental Rate Monthly Installment

Commencement Date

through

June 30, 2019

$0.00

 

$0.00

 

July 1, 2019

through

March 31, 2020

$108,900.00

(Annual Rate)

 

$9,075.00

 

April 1, 2020

through

March 31, 2021

$111,078.00

 

$9,256.50

 

April 1, 2021

through

March 31, 2022

$113,299.56

 

$9,441.63

 

April 1, 2022

through

March 31, 2023

$115,565.55

 

$9,630.46

 

April 1, 2023

through

March 31, 2024

$117,876.86

 

$9,823.07

 

April 1, 2024

through

March 31, 2025

$120,234.40

 

$10,019.53

 

April 1, 2025

through

March 31, 2026

$122,639.09

 

$10,219.92

 

April 1, 2026

through

March 31, 2027

$125,091.87

 

$10,424.32

 

April 1, 2027

through

March 31, 2028

$127,593.71

 

$10,632.81

 

April 1, 2028

through

March 31, 2029

$130,145.58

 

$10,845.47

 

 

 

EXHIBIT C

 

(Base Rent if Tenant does give a timely Rent Commencement Extension Notice)

 

Months Annual Base Rent Monthly Installment

Commencement Date

through

September 30, 2019

$0.00

 

$0.00

 

October 1, 2019

through

March 31, 2020

$118,800.00

(Annual Rate)

$9,900.00

 

April 1, 2020

through

March 31, 2021

$121,176.00

 

$10,098.00

 

April 1, 2021

through

March 31, 2022

$123,599.52

 

$10,299.96

 

April 1, 2022

through

March 31, 2023

$126,071.51

 

$10,505.96

 

April 1, 2023

through

March 31, 2024

$128,592.94

 

$10,716.08

 

April 1, 2024

through

March 31, 2025

$131,164.80

 

$10,930.40

 

April 1, 2025

through

March 31, 2026

$133,788.10

 

$11,149.01

 

April 1, 2026

through

March 31, 2027

$136,463.86

 

$11,371.99

 

April 1, 2027

through

March 31, 2028

$139,193.14

 

$11,599.43

 

April 1, 2028

through

March 31, 2029

$141,977.00

 

$11,831.42

 

 

  

Exhibit 10.7

 

LEASE AGREEMENT

 

THIS LEASE AGREEMENT (this “Lease”) is made this 3rd day of April, 2019 (the “Commencement Date”), by and between 300 Park Street, LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, Connecticut 06870 (“Landlord”), and KBS Builders, Inc., a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Tenant”). The parties hereby agree as follows:

 

LEASE INFORMATION AND DEFINITIONS

 

The following information and definitions are incorporated into and made a part of this Lease:

 

Leased Premises:

The “Leased Premises” means certain land located in the Town of Paris, County of Oxford, and State of Maine, and being more particularly described on Exhibit A , attached hereto and made a part hereof, together with all improvements thereon and all rights and easements appurtenant thereto (the “Real Property”), together with certain personal property consisting of the Personal Property (as that term is defined in the Purchase and Sale Agreement of even or near date between Tenant, as seller, and Landlord, as purchaser, and more particularly listed on Exhibit A-1 , attached hereto and made a part hereof (the “Leased Personal Property”).

 

Term:

The “Term” means:

 

(a)        an “Initial Term,” being a period commencing on the Commencement Date and ending at 5:00 p.m. on March 31, 2029, subject to adjustment and earlier termination as provided in the Lease; and

 

(b)        if Tenant duly exercises its option to extend the term of this Lease for one or both Extension Terms as provided in the Lease, then also each such Extension Term for which Tenant has duly exercised such option.

   
Extension Terms:

The Extension Terms shall be two (2) separate, consecutive sixty (60) month periods (hereinafter referred to as "First Extension Term” and the “Second Extension Term,” respectively, and also referred to in the singular as an “Extension Term” and in the plural as the “Extension Terms”), all on the terms and conditions set forth in the Lease.

 

 

 

Rent Commencement Date:

Tenant’s obligations to pay Base Rent shall commence on July 1, 2019 (the “Rent Commencement Date”), provided , however , that Tenant shall have the right, exercisable only by giving written notice to Landlord prior to May 1, 2019 (the “Rent Commencement Extension Notice”), to elect to defer the Rent Commencement Date until October 1, 2019.

 

Base Rent:

(a)       In the event that Tenant does not give Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit B , attached hereto and made a part hereof.

 

 

(b)       In the event that Tenant gives Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit C , attached hereto and made a part hereof.

 

(c)       The Base Rent for the Leased Premises for each year of each Extension Term shall be shall be an amount which is equal to 100% of the prevailing market rates in effect at the time of Tenant’ s exercise of its extension right for property comparable to the Leased Premises in the vicinity of the Leased Premises (and, for clarity, shall include annual escalators consistent with such prevailing market), all as determined by a licensed commercial real estate broker or appraiser doing business in the greater Portland, Maine vicinity and chosen by Landlord, but in no event shall Base Rent for any year of any Extension Term be less than the Base Rent payable for the immediately preceding year of the Term.

 

   
Rent:

The term “Rent” means Base Rent and all other sums payable by Tenant under this Lease.

 

Taxes:

Without limiting the “net” nature of this Lease as provided in herein, Tenant shall pay all Taxes (as defined in this Lease).

 

Utilities:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall contract for and pay for all Utilities (as defined in this Lease).

 

Operating Expenses; Maintenance and Repairs:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall pay 100% of all costs and expenses associated with the use, occupancy, operation, maintenance, repair, and/or replacement of the Leased Premises.

 

 

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Permitted Use:

 

Subject in all events to the terms and conditions of the Lease, the Leased Premises shall be used only for purposes of a facility for the manufacture of modular homes and other components of modular home construction and associated administrative and general business offices of Tenant in connection therewith.

 

1.        Leased Premises . Landlord leases to Tenant, in consideration of the Rent to be paid by Tenant and subject to the terms and conditions set forth herein, the Leased Premises. Tenant acknowledges that Tenant was the owner of the Leased Premises prior to the Commencement Date and has conveyed the Leased Premises to Landlord on the Commencement Date. Accordingly, Tenant agrees that Tenant accepts and is leasing the Leased Premises in their “as is” condition.

 

2.        Commencement and Term . The term of this Lease shall commence on the Commencement Date and shall be the Lease Term, unless earlier terminated or extended by mutual agreement of the parties or as otherwise provided in this Lease.

 

3.        Rent; Net Lease .

 

(a)       Tenant covenants and agrees to pay to Landlord at its address as set forth in the preamble to this Lease or at such other place as Landlord shall from time to time designate in writing, during the Lease Term, the Base Rent, without holdback or set-off, in advance, commencing on the Rent Commencement Date and continuing thereafter on the first day of each calendar month during the Lease Term. All other items of Rent shall be paid, without holdback or set-off, in accordance with the terms of this Lease. If any payment of Rent is received by Landlord more than five (5) days after the date when such payment is due, a late charge of five percent (5%) of the past due payment shall be assessed, due and payable immediately and without notice.

 

(b)       Landlord and Tenant acknowledge and agree that this Lease is intended to constitute, and shall constitute, an absolutely ‘net” Lease such that the Rent shall provide Landlord with a “net” return for the Term, free of all expenses and charges with respect to the Leased Premises, all of which shall be Tenant’s responsibility. Accordingly, Tenant shall pay as additional Rent and discharge, at the times specified herein, or if no time is specified, before failure to pay the same shall give rise to any interest or penalty or create any risk of lien or forfeiture, each and every item of expense, of every kind and nature whatsoever, foreseen or unforeseen, ordinary or extraordinary, related to or arising from the Leased Premises, or by reason of, or in any manner connected with or arising from, the development, leasing, operation, management, maintenance, repair, replacement, use, and/or occupancy of the Leased Premises.

 

4.       (Reserved.)

 

5.       (Reserved.)

 

- 3 -

 

6.        Permitted Use; Compliance with Laws .

 

(a)       Tenant agrees to use and occupy the Leased Premises for the Permitted Use, and for no other purpose without the written consent of Landlord, and further agrees not to use the Leased Premises for any purpose deemed extra hazardous or not covered by insurance. Tenant acknowledges and agrees that Landlord shall have the right to adopt reasonable rules and regulations for the use and/or occupancy of the Leased Premises and Tenant agrees that it shall at all times observe and comply with such rules and regulations.

 

(b)       Tenant agrees to abide by and comply with all Laws (as hereafter defined) applicable to the Leased Premises and/or the use or occupancy of the Leased Premises. It is the responsibility of Tenant to determine all zoning information and secure all necessary permits, licenses, and approvals for Tenant’s use and occupancy of the Leased Premises. Without limiting the generality of the foregoing, Tenant agrees to maintain in full force and effect, during the Lease Term, at Tenant’s cost and expense, all permits, licenses, registrations, and approvals required under applicable Laws for the use and/or occupancy of the Leased Premises. Without limiting the “AS IS” nature of this Lease, Tenant acknowledges and agrees that Landlord has not made and is not making any representations or warranties as to the suitability of, or the ability to obtain any permits or approvals for, Tenant’s intended use of the Leased Premises.

 

(c)       As used in this Lease, the term “Laws” means all federal, state, municipal or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

 

7.        Taxes .

 

(a)       Tenant shall be responsible for the prompt payment of all taxes, levies, betterments, and assessments, and governmental impositions of every kind or nature, whether now existing or hereafter created, general or special, ordinary or extraordinary, foreseen or unforeseen, that may be charged, assessed, laid, levied, or imposed upon, or become a lien or liens against, the Leased Premises (including the Real Property and the Leased Personal Property) or this Lease, including any amount that Landlord may be required to pay to any governmental authority as sales tax, gross receipt tax, or any tax of like nature specifically measured as a percentage of, or fraction of, or other factors based upon the all or any portion of the Rent payable hereunder (whether in lieu of, or in addition to the current system of real estate taxation) (all amounts payable under this Section being referred to herein as “Taxes”).

 

(b)       Tenant shall pay all Taxes , at Landlord’s option, either (i) to Landlord as additional Rent in estimated monthly installments, with the actual amount of Taxes reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated Taxes exceeds the actual Taxes for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual Taxes for such annual period exceeds the estimated payments made by Tenant to Landlord; or (ii) to Landlord within thirty (30) days after Landlord makes demand therefor, with copies of any bills for Taxes; or (iii) directly to the taxing authority, in which event Tenant shall provide to Landlord evidence of the prompt payment of all Taxes prior to the date the same are due without the accrual of any interest on such Taxes.

 

- 4 -

 

8.        Utilities .

 

(a)       Tenant shall make arrangements for, and pay on or before the date the same become due, all charges for or relating to gas, oil, electricity, water, sewer, septic, telecommunications, and all other services used at or supplied to the Leased Premises (collectively, “Utilities”).

 

(b)       Landlord shall in no way be liable for any loss, expense, or damage (whether direct or indirect) that Tenant may sustain or incur by reason of any change, failure, interference, disruption, interruption, or defect in the supply or character of any Utilities serving the Leased Premises, regardless of its duration, or if the quantity or character of Utilities become unavailable to the Leased Premises or no longer suitable for Tenant’s requirements. Additionally, any such change, failure, interference, disruption, interruption, defect, unavailability, or unsuitability mentioned in this Section shall not: (i) constitute an actual or constructive eviction of Tenant, in whole or in part; (ii) entitle Tenant to any abatement or diminution of Rent, or any other costs due from Tenant pursuant to this Lease; (iii) relieve or release Tenant from any of its obligations under this Lease; or (iv) entitle Tenant to terminate this Lease.

 

9.        Operation, Maintenance and Repairs .

 

(a)       Tenant agrees that from and after the Commencement Date, Tenant will keep neat and clean and maintain in good and safe order, condition and repair, and in compliance with all Laws the entirety of the Leased Premises, including any and all alterations or improvements to the Leased Premises occurring after the date of this Lease. Tenant agrees to pay the costs for cleaning and janitorial services relating to the Leased Premises (including trash removal and trash hauling), which services shall be provided or caused to be provided by Tenant. Tenant shall be responsible for the plowing, shoveling, and treatment of snow and ice and all grounds keeping, including all landscaping and sweeping of pavement and other hardscaped surfaces. Tenant shall be responsible for all items of maintenance and all repairs to and replacements (except as otherwise provided in Section 18) of all buildings and improvements and all Building Systems (as hereafter defined), and all foundations, structural supports, walls, ceilings, windows (including plate glass), siding, roof structure, roofing materials, doors, plate glass, driveways, parking areas, fences and signs located in, on or at the Leased Premises) that the Leased Premises may require from time to time during the Term, whether interior or exterior, structural or non-structural, ordinary or extra-ordinary, foreseen or unforeseen, all to keep the Leased Premises in good and safe order, condition, and repairs, and in at least as good condition as the Leased Premises are in on the Commencement Date. The term “Building Systems” means all heating systems, ventilating systems, air conditioning systems, fire alarm systems, sprinkler systems, and other life safety systems, septic systems, water supply systems (including any water treatment or filtration systems), plumbing systems, electrical systems, storm water management facilities, and all other systems located at or serving the Real Property.

 

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(b)       Without limiting the generality of sub-section (a) of this Section, Tenant shall procure and maintain, with qualified vendors reasonably acceptable to Landlord, contracts providing for periodic inspections and maintenance of the heating, ventilating, and air conditioning (HVAC) systems, fire alarm, sprinkler, and life safety systems, the septic system (if any), the crane(s) and related appurtenances in the building, and the Hundegger saw, at such intervals as are reasonably required by Landlord, but in all events at least annually.

 

10.        Alterations, Renovations and Improvements . Tenant shall not make any alterations, renovations or improvements to the Leased Premises without obtaining Landlord’s prior written consent to the plans and specifications therefor and the contractor(s) to be retained by Tenant to perform such work, which shall not be unreasonably withheld, conditioned, or delayed in the case of cosmetic renovations that do not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, but otherwise shall be in Landlord’s sole discretion. Prior to any contractor or subcontractor (of any tier) providing or furnishing any labor, materials, or services in connection with any alterations, renovations, or improvements, Tenant shall obtain and furnish to Landlord the name and address of each such contractor and subcontractor. In addition, prior to any such labor, materials, or services being provided or furnished, Tenant shall furnish to Landlord a mechanic’s lien waiver and notice to prevent lien in a form prescribed by Landlord, duly executed by each such contractor or subcontractor who will furnish or provide labor, materials, and/or services. Tenant shall ensure that all such alterations, renovations and improvements are performed in a good and workmanlike and in compliance with all applicable Laws. In the event any lien is filed against the Leased Premises in connection with or arising out of any work performed at or materials, labor or other services supplied to the Leased Premises, Tenant shall cause the same to be discharged within thirty (30) days after such lien is filed. Tenant shall indemnify and hold Landlord harmless from and against all claims, demands, liabilities, liens, losses, costs and expenses (including reasonable attorneys’ fees) which may arise or be incurred by Landlord as a direct or indirect result of or in connection with such alterations, renovations and improvements, and Tenant shall be responsible for all costs, liabilities, and expenses arising out of such alterations, renovations and/or improvements. All alterations, renovations and improvements which may be made or installed by or on behalf of Tenant upon the Leased Premises and which in any manner are attached to the floors, walls or ceilings shall, at Landlord's option, remain upon the Leased Premises, and, upon termination of this Lease, shall be surrendered with the Leased Premises as a part thereof without disturbance, molestation or injury, provided, however, that Tenant’s furniture, equipment, other personal property, and trade fixtures (which, for avoidance of doubt, shall in no event include the Leased Personal Property or the crane(s) or related appurtenances located at the Leased Premises) may be removed by Tenant from the Leased Premises upon the expiration or termination of this Lease, subject to the provisions relating to removal thereof as provided in this Lease.

 

11.        Signs . Tenant shall have the right to maintain the existing signage at the Real Property as of the Commencement Date and shall have the right to install additional signage that does not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, provided, however, that all signage shall be at Tenant’s sole cost and expense, and shall comply with all applicable Laws.

 

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12.        Surrender; Holdover . Tenant shall vacate and surrender the Leased Premises to Landlord at the expiration or sooner termination of the Lease Term and the same shall be in the same condition as Tenant is required to maintain the same during the Lease Term, free of all of Tenant’s personal property except as may otherwise be provided herein, “broom clean,” and otherwise in accordance with the provisions of the Lease. Tenant shall have no right to holdover beyond the expiration of the Lease Term. If Tenant continues to occupy the Leased Premises after the end of the Lease Term, such continued occupancy shall be deemed a tenancy-at-sufferance even if Landlord accepts any payment from Tenant, but in the event that a court of competent jurisdiction deems such acceptance of a payment to constitute acceptance of “rent”, such acceptance shall create no rights in Tenant beyond a tenancy-at-will under the terms and conditions stated herein but at a Base Rent rate equal to one hundred fifty percent (150%) of the Base Rent applicable immediately preceding the end of the Lease Term, plus all additional Rent, until (i) Tenant shall vacate the Leased Premises; (ii) the termination of the tenancy-at-will; or (iii) Landlord shall give notice of a different rental amount. Nothing contained in this Section shall be deemed to (a) constitute consent by Landlord to such occupancy or holdover by Tenant; (b) confer any rights on Tenant as more than a tenant-at-sufferance or, if Landlord accepts any rental payments applicable to such period of holding over, a tenant-at-will; or (c) relieve Tenant from liability for damages suffered by Landlord as a result of such holding over.

 

13.        Removal of Tenant’s Property . Tenant’s trade fixtures, personal property, furniture and equipment, other than those items which are to remain or which Landlord elects to have remain at the Leased Premises as provided in Section 10 of this Lease, may be removed by Tenant at the termination of this Lease, provided (a) Tenant is not then be breach of any provision of this Lease; (b) such removal shall not cause any material damage to any portion of the Leased Premises, and any other damage created by such removal shall be repaired by Tenant at Tenant's expense prior to the expiration of the Lease Term to at least as good condition as existed when possession of the Leased Premises was delivered to Tenant; and (c) such removal shall be made before the termination of the Lease Term.

 

14.        Subletting and Assignment . Tenant shall not assign this Lease, in whole or in part, or sublet the Leased Premises or any portion thereof, or encumber the leasehold interest created by this Lease in any manner (including the creation of any security interest in or other pledge of or lien upon the Leased Personal Property) without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion during the first twenty-four full calendar months of the Term, and thereafter will not be unreasonably withheld. No assignment or sublease shall operate to release Tenant from any of its obligations under this Lease. Each sublease of the Leased Premises or any portion thereof must contain a release of and waiver of claims against Landlord and the other Releasees (as that term is defined in this Lease), in form and content acceptable to Landlord, and must require the subtenant’s property insurer to issue in favor of Landlord and the other Releasees waiver of subrogation rights endorsements to all policies of property insurance carried in connection with the Leased Premises and the contents thereof. Every transfer by levy or sale on execution, or other legal process, every transfer in bankruptcy, every transfer by merger, consolidation, or by operation of Law, every transfer of a controlling interest in Tenant, and every transfer under any compulsory procedure or order of court shall be deemed to constitute an “assignment” within the meaning of this Lease. Any attempted assignment or sublease in violation of this Section shall, at Landlord’s option, be void and shall constitute a default under this Lease. Consent by Landlord to an assignment or sublease in one instance shall not operate to release the requirement that consent from Landlord be obtained for any further or subsequent assignment or sublease. Tenant shall pay all fees and expenses, including reasonable attorneys’ fees, incurred by Landlord in connection with any proposed subletting or assignment, irrespective of whether Landlord’s consent is in fact granted.

 

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15.        Indemnification and Insurance .

 

(a)       Tenant agrees to maintain in full force during the Lease Term insurance as follows:

 

(i)        commercial general liability insurance, written on an occurrence basis, with a deductible in an amount not to exceed $10,000.00, and providing:

 

(A)        minimum limits of (y) $1,000,000.00 per occurrence with $3,000,000.00 annual aggregate limit for bodily injury (including death) and property damage; and (z) $3,000,000.00 in the annual aggregate with respect to products and completed operations;

 

(B)        coverage for damages arising out of bodily injury (including death) sustained by any person or persons or arising out of damage to or destruction of property;

 

(C)       coverage for damages arising out of premises liability, personal injury and advertising injury;

 

(D)       pollution liability coverage for sudden and accidental pollution;

 

(E)       for extension of such coverage to include liability for the operation of non-owned motor vehicles;

 

(F)       specific coverage for Tenant’s indemnification obligations under this Lease (but neither this provision nor such coverage shall be deemed to limit any of Tenant’s obligations under this Lease);

 

(G)        that Tenant’s commercial general liability insurance is provided on a primary and non-contributory basis;

 

(H)       that Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time are named as additional insureds by an endorsement provided on ISO Form 2026 (1185) or its equivalent, without modification, or such other endorsement as is acceptable to Landlord, acting reasonably; and

 

(I)       for waiver of subrogation in favor of Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

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(ii)       Automobile liability insurance covering all motor vehicles owned, leased, or licensed by Tenant, covering injury to or death of one or more persons or damage to or destruction of property, with a minimum limit of liability of $3,000,000.00 for each accident.

 

(iii)       Workers compensation insurance in accordance with the requirements of all applicable Laws, and employers liability insurance with limits of at least $1,000,000.00, with such workers compensation insurance and employers liability insurance providing for waiver of subrogation in favor of Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

(iv)       Umbrella excess liability insurance in a minimum amount of $10,000,000.00, on a following form basis over the insurance described in clauses (i) through (iii), above.

 

(v)       Special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all personal property and trade fixtures owned by or within the care, custody or control of Tenant (including the Leased Personal Property), with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such property, without co-insurance provisions, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as loss payee(s) with respect to the Leased Personal Property and additional insured(s). Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

(vi)       Until such time, if any, as Landlord elects to carry property insurance for the buildings and improvements located on the Leased Premises, special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all buildings and improvements (including fixtures) located on the Leased Premises, with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such buildings and improvements, and in all events sufficient at all times to avoid causing the insured to be or become a co-insurer, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as loss payee(s) and additional insured(s). Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

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(vii)       business interruption insurance covering all of Tenant’s obligations under this Lease with respect to the payment of Rent for a period of at least eighteen (18) months.

 

(viii)       Such other insurance policies, such other endorsements, such other deductibles, and/or such other insurance policy limits as may from time to time be reasonably required by Landlord, provided that, at the time, such other insurance policies, endorsements, deductibles, and/or insurance policy limits are commonly carried for premises and/or buildings or improvements similar in construction, design, general location, use, operation, and occupancy to those located on or appurtenant to the Leased Premises or for operations similar to those conducted on or from the Leased Premises.

 

(b)       Without limiting the exculpatory provisions of this Lease, each policy of property insurance maintained by Tenant under this Lease shall contain waivers of subrogation in favor of Landlord and all other Releasees.

 

(c)       All insurance required to be obtained and maintained by Tenant pursuant to this Section must be with insurers authorized to transact insurance business and cover risks in the State of Maine and that are rated "A-" or better by A.M. Best Company, Inc. or other insurance companies of recognized responsibility acceptable to Landlord, acting reasonably.

 

(d)       The policies of insurance required to be maintained by Tenant under this Lease shall be endorsed to require that each policy will not be cancelled or materially changed without at least thirty (30) days prior written notice to Landlord.

 

(e)       Tenant shall deliver to Landlord copies of each policy of insurance (including all endorsements) required to be maintained by Tenant under this Lease or such other evidence of each such policy of insurance (and all required endorsements) as is acceptable to Landlord, acting reasonably.

 

(f)       If Tenant fails to obtain, maintain and/or pay for the insurance required by this Lease at the times and for the amounts and duration specified herein, Landlord has the right, but not the obligation, at any time and from time to time, to obtain such insurance and/or pay the premiums for such insurance, without limiting any other rights or remedies available to Landlord for such failure. In such event, Tenant shall repay Landlord, immediately upon demand, all sums so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith (including reasonable attorneys’ fees), all without prejudice to any other rights or remedies available to Landlord.

 

(g)       Landlord shall have the right, at any time during the Term, to elect, by giving written notice to Tenant, to carry property insurance for the buildings and improvements located on the Leased Premises, in which event, Tenant shall pay to Landlord the amount of all premiums for such property insurance procured and maintained by Landlord with respect to the Real Property. Tenant shall pay such amounts to Landlord in estimated monthly installments, with the actual amount of incurred by Landlord for such premiums being reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated premiums exceeds the actual premiums for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual premiums for such annual period exceeds the estimated payments made by Tenant to Landlord.

 

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(h)       Tenant acknowledges and agrees that such property insurance as Landlord elects to purchase with respect to the Real Property shall be for the sole benefit of Landlord and that such insurance shall not cover any personal property, trade fixtures, leasehold improvements, or other property or appurtenances owned by or within the care, custody, or control of Tenant, or otherwise located in the Leased Premises (collectively, “Tenant’s Property”) and that in the event of damage to or loss of any of Tenant’s Property, neither Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), nor any of the shareholders, members, directors, managers, officers, employees, or agents of Landlord or any such mortgagee(s) (each in the singular “Releasee”, and in the plural, “Releasees”) shall have any obligation to repair or replace the same. Notwithstanding any exception to Tenant’s indemnification obligations under this Lease, Tenant does hereby expressly release all Releasees of and from, and agrees to indemnify, hold harmless, and defend Releasees from and against, any and all claims for damages to or loss of any of Tenant’s Property, regardless of the cause thereof, including, damage or loss due to any Releasee’s negligence.

 

(i)       Tenant shall indemnify and hold all Releasees harmless and, if requested by Landlord, defend such Releasee(s) with counsel reasonably satisfactory to Landlord, from and against any and all liabilities, losses, claims, causes of action, damages, costs, and expenses (including reasonable attorney’s fees) incurred by or threatened against any Releasee arising out of (i) any occurrence on the Leased Premises or the use of the Leased Premises by Tenant, its employees, agents, licensees, or invitees, except to the extent caused by the negligence or willful misconduct of Landlord (but such exception shall not apply to limit the application of sub-section (h) of this Section); or (ii) Tenant’s breach of any provision of this Lease. Tenant agrees that the foregoing agreement to indemnify, defend, and hold harmless extends to liabilities, losses, claims, causes of action, damages, costs and expenses (including reasonable attorney’s fees) arising out of claims of Tenant's employees without regard to any immunity, statutory or otherwise, including any immunity under the workers compensation Laws of Maine or any other applicable jurisdiction, which immunity Tenant hereby waives, but only for the purposes of Tenant’s obligations to the Releasees under this sub-section. Tenant's obligations under this sub-section shall survive the termination of this Lease.

 

16.        Hazardous Materials . Tenant covenants and agrees that Tenant will not permit any Hazardous Substances (as hereafter defined) to be stored, generated, or released from the Leased Premises, other than Hazardous Substances incidental to Tenant’s use, maintenance, and operation of the Leased Premises for the Permitted Use provided that Tenant shall store, generate, handle, and dispose of all such Hazardous Substances in full compliance with all applicable laws. Tenant hereby covenants and agrees to indemnify, hold harmless, and, if requested by Landlord, defend, Landlord from and from and against any and all demands, claims, causes, of action, losses, liabilities, damages, fines, costs, and expenses (including reasonable attorneys’ fees, court costs and clean-up costs) that may arise out of any Hazardous Substances located at or generated or released from the Leased Premises, irrespective of whether first occurring prior to or after the Commencement Date. The term “Hazardous Substances” means any flammables, explosives, radioactive materials, gasoline, oil, other petroleum products, lead paint, urea formaldehyde (including urea formaldehyde foam insulation), asbestos, asbestos containing materials, polychlorinated biphenyls, and any other hazardous materials, hazardous waste, hazardous matter, hazardous or toxic substances, chemical pollutants, and other materials or substances defined in or regulated by Environmental Laws. The term “Environmental Laws” means (A) the Clean Water Act; (B) the Clean Air Act; (C) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act; (D) the Toxic Substance Control Act; (E) the Resource Conservation and Recovery Act; (F) the Hazardous Materials Transportation Act; and/or (G) any similar state Laws regulating pollution or contamination of the environment The obligations of Tenant under this Section shall survive the termination of this Lease.

 

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17.        Right to Enter . Tenant agrees to permit Landlord or its duly authorized agents to enter on the Leased Premises during Tenant's normal business hours, with reasonable prior notice, to examine the condition of said Leased Premises, exercise any rights of Landlord under this Lease, and/or to show the same to prospective tenants, lenders, or purchasers, provided such access to the Leased Premises shall not unnecessarily interfere with Tenant's use of the Leased Premises or the conduct of Tenant's business activities thereon. Notwithstanding the foregoing, Landlord shall have the right (but not the obligation) to enter the Leased Premises without prior notice in the event of an emergency in which prior notice is not practicable in the circumstances.

 

18.        Total or Partial Destruction .

 

(a)       In the event the improvements on the Real Property (including any Building Systems) are damaged or destroyed by fire or other peril (a “Casualty”), Tenant shall give Landlord notice of such Casualty as soon as reasonably possible after the Casualty. Landlord shall have the right to elect whether to have such improvements rebuilt or restored. In the event that Landlord elects not to have the improvements rebuilt or restored, and the nature of the Casualty is such as would, absent such rebuilding or restoration, materially impair Tenant’s ability to use and occupy such Leased Premises in substantially the same manner as they were used prior to the Casualty, this Lease shall terminate effective as of the date of the Casualty. In the event that Landlord elects to have the improvements rebuilt or restored, this Lease shall remain in effect without reduction or abatement of Rent, and the following provisions shall apply:

 

(i)       Landlord shall, with reasonable promptness rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements, provided , however , that in no event shall Landlord be obligated to expend for any such rebuilding or restoration an amount in excess of the insurance proceeds actually collected by Landlord on account of the Casualty, less the costs and expenses (including reasonable attorneys’ fees) incurred by Landlord in collecting such proceeds.

 

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(ii)       Notwithstanding the preceding clause (i), Landlord shall have the right to elect, by giving written notice to Tenant, to have Tenant rebuild or restore the Leased Premises, in which event Tenant shall, with reasonable promptness, and in all events within twelve (12) months of the date of Landlord’s election notice, rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements. The selection of all engineers, architects, and contractors engaged in connection with such rebuilding or restoration and all plans and specifications for such rebuilding or restoration, shall be subject to review and approval by Landlord. In the event that Landlord makes the election to have Tenant rebuild or restore as provided in this clause (ii), all proceeds payable by reason of any Casualty under all applicable policies of insurance (whether Tenant is carrying such insurance, or Landlord has elected to do so as provided in this Lease) shall be paid to Landlord or its mortgagee, and such proceeds will be held by Landlord or its mortgagee in an interest-bearing account and, provided Tenant is not in breach of this Lease, shall be made available for rebuilding or restoring the improvements, and shall be paid by Landlord (or such mortgagee) from time- to-time during the progress of construction for the costs of such reconstruction or repair, all subject to and in accordance with reasonable terms, conditions, and construction disbursement procedures specified by Landlord and/or such mortgagee. Any excess proceeds of insurance (and accrued interest) remaining after the completion of the restoration or reconstruction of the Leased Premises shall be paid to Landlord.

 

(b)        Loss or Damage affecting Leased Personal Property . In the event of any loss or destruction of or damage to any of the Leased Personal Property, Tenant shall, unless Landlord or its mortgagee elects to retain any proceeds of insurance allocable to such Leased Personal Property, be responsible for the repair and replacement of such lost, destroyed, or damaged Leased Personal Property, with the restored or replacement items of at least equivalent condition, quality, class, and value to the item(s) of Leased Personal Property prior to such loss, destruction, or damage. All proceeds payable under all applicable policies of insurance by reason of any loss or destruction of or damage to any Leased Personal Property shall be paid to Landlord or its mortgagee. Unless Landlord or its mortgagee elect to retain such proceeds of insurance allocable to such Leased Personal Property, such proceeds will be held by Landlord or its mortgagee in an interest-bearing account and, provided Tenant is not in breach of this Lease, shall be made available for such repair or replacement, and shall be paid out by Landlord (or such mortgagee) from time to time during the progress of the repair or replacement for the reasonable costs of such repair or replacement, all subject to and in accordance with reasonable terms, conditions, and disbursement procedures specified by Landlord and/or such mortgagee. Any excess proceeds of insurance (and accrued interest) remaining after the completion of the repair or replacement of such Leased Personal Property shall be paid to Landlord. There shall be no abatement or reduction of Rent on account of any such loss, destruction, or damage.

 

(c)       Tenant shall be responsible for all insurance deductibles applicable to any Casualty affecting any of the improvements on the Real Property (including Building Systems) and/or any loss or destruction of or damage to any of the Leased Personal Property.

 

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(d)       The provisions of this Section shall be subject and subordinate to the provisions of any mortgage now or hereafter placed upon the Real Property, the provisions of any security agreement now or hereafter affecting the Leased Personal Property, and the requirements of any mortgagee holding such mortgage or secured party holding the security interest under such security agreement.

 

19.        Condemnation .

 

(a)       “Condemnation” means any taking of title to or any interest in the Leased Premises or any part thereof or any other property used in connection with the Leased Premises (including for ingress, egress, parking, septic service, water supply or other services or utilities) by exercise of any right of eminent domain by, or by any similar proceeding or act of, any person having the power and legal authority to do so (or by purchase in lieu thereof). For the purposes of this definition, the effective date of any Condemnation shall be deemed to be the later of: (i) the date when title to the Leased Premises or part thereof or such other property is transferred by such proceeding or act of the condemning authority, and (ii) the date when Tenant o is no longer permitted to occupy the Leased Premises or to use such other property.

 

(b)       “ Substantial Condemnation ” means any Condemnation that affects all or a substantial portion of the Leased Premises or any Condemnation that has or is reasonably likely to have a materially adverse effect on any business operations then being conducted on the Leased Premises. Tenant may waive its right to treat as a Substantial Condemnation any Condemnation that would otherwise qualify as such.

 

(c)       “Insubstantial Condemnation” means any Condemnation that is not a Substantial Condemnation.

 

(d)       If a Substantial Condemnation occurs, this Lease shall terminate upon the effective date of the Substantial Condemnation.

 

(e)       If an Insubstantial Condemnation occurs, then this Lease shall continue in full force and effect without reduction or abatement of Rent.

 

(f)       In the event of any Condemnation, Landlord shall be entitled to receive and retain the amounts awarded for the Leased Premises, and Tenant shall be entitled to receive and retain any amounts which may be specifically awarded to it in any such condemnation proceedings because of its business loss or the taking of its trade fixtures, furniture, or other property.

 

20.        Force Majeure . In any case where either party is required to perform any act pursuant to this Lease, except for Tenant’s monetary obligations hereunder, the time for the performance thereof shall be extended by a period of time equal to the period of any delay caused by or resulting from an act of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of energy or labor, government regulations, or delays caused by one party to the other, whether such period be designated by a fixed date, a fixed time, or as a reasonable date or time.

 

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21.        Quiet Enjoyment . Tenant, on paying the Rent and performing and observing the covenants in this Lease, may hold and enjoy the Leased Premises for the Term without unreasonably interference from any person claiming by, through, or under Landlord, subject and subordinate to all provisions of this Lease.

 

22.        Default.

 

(a)       In the event that:

 

(i)       Tenant shall fail to pay when due the Rent or any other sums payable hereunder when due and such failure remains uncured for five (5) days after Landlord delivers a default notice to Tenant for such failure to pay rent; or

 

(ii)       any petition in bankruptcy shall be filed by Tenant or any guarantor hereof or other petition or proceeding shall be filed or commenced by Tenant or any guarantor hereof to declare Tenant insolvent, or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations, or Tenant or any such guarantor admits its inability to pay its debts, or Tenant or any such guarantor makes an assignment for the benefit of creditors; or

 

(iii)       any bankruptcy petition or proceeding shall be filed against Tenant or any guarantor hereof or to otherwise declare Tenant or any guarantor hereof bankrupt or insolvent or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations or a receiver, trustee or other similar type of appointment or court appointee or nominee is appointed for Tenant or any such guarantor or any of the property of Tenant or any such guarantor, and such petition, appointment or proceeding is not dismissed within sixty (60) days after it is commenced; or

 

(iv)       the leasehold interest of Tenant is levied upon or attached by process of law, including the filing of any mechanic’s lien, and such levy, lien, or attachment is not dissolved within thirty (30) days after it is made; or

 

(v)       Tenant shall abandon the Leased Premises during the Lease Term; or

 

(vi)       Tenant shall assign this Lease or sublet any portion of the Leased Premises, or attempt to do either of the foregoing, in violation of this Lease; or

 

(vii)       Tenant violates or fails to observe or comply with any Laws applicable to the Leased Premises, Tenant’s use thereof, or Tenant's operations, activities or conduct of business at or from the Leased Premises; or

 

(viii)       any other event, occurrence, act, or omission described in any provision of this Lease as constituting a “default” or an “Event of Default” occurs;

 

(ix)       Tenant shall neglect or fail to perform or observe any of the other covenants, terms, provisions or conditions contained in this Lease and, if the neglect or failure is capable of being cured, such neglect or failure continues for more than thirty (30) days after written notice thereof ( provided , however , that if such neglect or failure is capable of being cured, but is not capable of being cured within said thirty (30) day period, then Tenant shall have such additional period of time, not to exceed an additional sixty (60) days, as is reasonably necessary to cure the same provided Tenant commences to cure within said thirty (30) day period and diligently and continuously prosecutes the cure to completion); or

 

- 15 -

 

(x)       there is a default by Tenant under (A) that certain Lease Agreement of even or near date herewith between Tenant and 947 Waterford Road, LLC pertaining to property located in the Town of Waterford, County of Oxford, and State of Maine; and/or (B) that certain Lease Agreement of even or near date herewith between Tenant and 56 Mechanic Falls Road, LLC pertaining to property located in the Town of Oxford, County of Oxford, and State of Maine, and any such default continues beyond the expiration of applicable notice and cure periods (if any),

 

then, and in any of said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), and without limitation of any other remedies that might be available to Landlord under this Lease, at law, or in equity, Landlord lawfully may, immediately or at any time thereafter, terminate this Lease by sending written notice of termination to Tenant, or, subject to compliance with applicable Laws, enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, and expel Tenant and those claiming through or under it and remove it or their effects without being deemed guilty of any manner of trespass, in each case without prejudice to any rights or remedies which might otherwise be available to Landlord for collection of Rent and other damages for breach of covenant, and upon entry as aforesaid or upon sending of such notice, this Lease shall terminate.

 

(b)       Without limiting other remedies of Landlord at law or in equity for any breach of or on account of termination of this Lease, Tenant covenants that in case of such termination under sub-section (a) of this Section, Tenant shall pay to Landlord the unpaid Rent owed to Landlord through the time of termination, plus interest thereon at the rate of 18% per annum from the date the same was due until paid; and (ii) at the election of Landlord, either:

 

(1)       the present value of a sum which, at the time of such termination of this Lease is equal to (A) the aggregate of the Rent which would have been payable by Tenant for the period commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant; minus (B) the fair market rental value of the Leased Premises (after deducting reasonable projections for Landlord’s costs and expenses of re-letting the Leased Premises, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant); or

 

(2)       for the period of time commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant hereunder, the difference, if any, between the Rent which would have been due had there been no such termination and the amount being received by Landlord as rent from a replacement Tenant of Leased Premises, if any. In addition, Tenant shall pay to Landlord all costs and expenses of such re-letting, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant.

 

- 16 -

 

(c)       If Tenant shall default in the performance or observance of any covenant, agreement, or condition in this Lease contained on its part to be performed or observed and shall not cure any such default as provided herein, Landlord may, at its option, without waiving any claim for damages or any other right or remedy for breach of this Lease, at any time thereafter, cure such default. Any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant agrees to immediately reimburse Landlord therefor, as additional Rent.

 

(d)       Tenant shall pay all reasonable attorneys’ fees incurred by Landlord in connection with the enforcement of Tenant’s obligations under this Lease.

 

(e) Landlord shall in no event be in default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform, or failed diligently to attempt to perform, such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation.

 

(f) In no event shall Landlord be liable to Tenant for incidental, consequential, or punitive damages in connection with any matter arising out of this Lease or the Leased Premises. Without in any way limiting or impairing the effect of the other provisions of this Lease, Tenant shall neither assert nor seek to enforce any claim arising out of this Lease or out of the use or occupancy of the Leased Premises against Landlord, its shareholders, directors, officers, employees, or agents, or any of its or their assets other than the value of Landlord’s interest in the Leased Premises and Tenant agrees to look solely to such interest and insurance coverage for the satisfaction of any claim arising out of this Lease or out of the use or occupancy of the Leased Premises.

 

23.        Sale or Mortgage; Estoppel; Subordination .

 

(a)       Nothing contained in this Lease shall limit Landlord's right to sell, mortgage, or otherwise encumber its fee interest in the Leased Premises, or affect Landlord's right to assign this Lease or the Rent payable under this Lease, whether as further security under a fee mortgage or otherwise. Any such assignment of this Lease or of the Rent payable under this Lease shall be honored by Tenant.

 

(b)       In the event Landlord shall sell, transfer, or otherwise convey the Leased Premises, Landlord, upon the written assumption by the transferee of the obligations arising hereunder after the date of such transfer, shall be entirely freed and relieved of all covenants and obligations of Landlord hereunder. Nothing in the preceding sentence shall be construed to impair Tenant’s leasehold interest under this Lease so long as Tenant performs and observes the covenants and terms of this Lease on its part to be performed and observed.

 

- 17 -

 

(c)       This Lease shall, at Landlord’s option, be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the Leased Premises, and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination, Tenant's right to quiet possession of the Leased Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the Rent and observe and perform all of the provisions of this Lease. If any mortgagee, trustee, or ground lessor shall elect to have this Lease made prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior to or subsequent to the date of said mortgage, deed of trust, or ground lease or the date of recording thereof. Tenant agrees to execute any documents required to effectuate an attornment, a subordination, or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Tenant's failure to execute such documents within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

 

(d)       At any time, and from time to time, upon the written request of Landlord or any mortgagee or prospective purchaser of the Leased Premises, Tenant, within ten (10) business days after such written request, agrees to execute, acknowledge and deliver to Landlord and/or mortgagee, without charge, an estoppel certificate which shall contain (i) a certification that this Lease is unmodified and in full force and effect or, if modified, a statement of the nature of any such modification and a certification that this Lease, as so modified, is in full force and effect; (ii) a certification of the date to which the Rent payable by Tenant are paid (including any payments in advance); (iii) a certification that Tenant is not in default hereunder and that there are not, to Tenant's knowledge, any uncured events of default on the part of Landlord hereunder, or a specification of such events of default if any are claimed by Tenant; and (iv) such other commercially reasonable certifications as are identified in such request. Tenant's failure to deliver such estoppel certificate within the time frame set forth above shall, at Landlord’s option, constitute an Event of Default hereunder and shall, at Landlord’s option, be conclusive proof that this Lease is in full force and effect without modification except as may be represented by Landlord, that there are no uncured defaults in Landlord's performance of Landlord's obligations under this Lease, and that not more than one month's Rent has been paid in advance.

 

(e)       If Landlord desires to finance, refinance, or sell the Leased Premises, Tenant hereby agrees to deliver to any lender or purchaser designated by Landlord, and cause any guarantor to so deliver, such financial statements and other financial information pertaining to Tenant and such guarantor as may be reasonably required by such lender or purchaser. Tenant's failure to provide such information or cause such information to be provided within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

 

24.        Notices . Any notice, request, demand, approval or consent given or required to be given under this Lease shall be, unless otherwise stated, in writing and shall be deemed to have been given (i) when hand delivered to the other party; or (ii) on the day on which the same shall have been mailed by United States registered or certified mail, return receipt requested, with all postage prepaid, or by Federal Express or similar nationally-recognized overnight courier service that provides evidence of delivery, to the address of the party to receive such notice as set forth in the preamble hereof, provided that either party may, by such manner of notice, add or substitute one or more persons or addresses for provision of such notice.

 

- 18 -

 

25.        Tenant Representations .

 

(a)       Neither Tenant nor any key personnel of Tenant nor any of Tenant’s underlying beneficial owners have engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any U.S., international or other anti-money laundering regulations or conventions, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder (collectively, the “ Patriot Act ”), or any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”); or (ii) in contravention of Executive Order No. 13224 issued by the President of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time (“ Executive Order 13224 ”); or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time.

 

(b)       Neither Tenant nor any key personnel of Tenant nor any of the underlying beneficial owners of Tenant is or will be a person or entity (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224; or (ii) whose name appears on OFAC’s most current list of “Specially Designated Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf ); or (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in Executive Order 13224; or (iv) who has been associated with or is otherwise affiliated with any entity or person listed above.

 

(c)       Tenant represents that it has all requisite power and authority to enter into this Lease and the person executing this Lease on behalf of Tenant represents that he or she has all requisite power and authority to do so.

 

26.        Miscellaneous Provisions .

 

(a)        Invalidity of Particular Provisions . If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by applicable Laws.

 

- 19 -

 

(b)        Governing Law . This Lease, and all claims or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of or relate to this Lease, shall be governed by and enforced in accordance with the internal Laws of the State of Maine, including its statutes of limitations, without regard or reference to conflicts of law principles.

 

(c)        Interpretation . Whenever the word “include,” “includes,” or “including” is used in this Lease, it is deemed to be followed by the words “without limitation.” The terms “this Lease,” “hereof,” “herein,” “hereby,” “hereunder” and similar expressions refer to this Lease as a whole and not to any particular section of this Lease unless the context otherwise requires. The word “person” includes any individual, corporation, firm, association, partnership (general or limited), joint venture, limited liability company, trust, estate or other legal entity. The section and sub-section headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Lease. Whenever in this Lease provision is made for the doing of any act by any party, it is understood and agreed that said act shall be done by such party at its own cost and expense, unless a contrary intent is expressed.

 

(d)        Entire Agreement; Binding Effect . All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by agreement in writing between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change, or modify any of the provisions hereof. All rights, obligations and liabilities contained herein given to, or imposed upon, Landlord and Tenant shall extend to and bind the several respective administrators, trustees, receivers, legal representatives, successors, heirs and permitted assigns of Landlord and Tenant. If the “Tenant” under this Lease consists of more than one person or entity, each such person and/or entity shall be bound jointly and severally by the terms, covenants and agreements herein and jointly and severally liable for all obligations arising hereunder.

 

(e)        Language . Words of any gender used in this instrument shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires.

 

(f)        Recording; Notice of Lease . Landlord and Tenant agree that this Lease shall not be recorded. The parties agree that at the request of either party, they will execute, acknowledge, and deliver a notice or memorandum of this Lease in recordable form for recording in the Oxford County Registry of Deeds. The requesting party shall bear the expense of recording such notice or memorandum. The Memorandum of Lease shall not be construed to vary the terms and conditions hereof. Landlord and Tenant also agree that, upon the request of either party, they will execute, acknowledge, and deliver a commercially reasonable instrument in recordable form with respect to the termination date of this Lease.

 

- 20 -

 

(g)        Timeliness of Landlord’s Notices . Landlord's failure during the Lease Term to prepare or deliver any of the statements, notices, or bills, or invoices for any sum payable by Tenant under this Lease shall not in any way cause Landlord to forfeit or surrender its rights to collect any amount that may have become due and owing from Tenant during the Lease Term.

 

(h)        Waiver of Jury Trial . Tenant, for itself and its heirs, successors, and assigns, does hereby WAIVE THE RIGHT TO A TRIAL BY JURY in any action or proceeding based upon, or related to, the subject matter of this Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant and Tenant acknowledges that neither Landlord nor any person acting on behalf of Landlord has made any representations of fact to induce this waiver of trial by jury or in any way to modify or nullify its effect. Tenant further acknowledges that it has been represented (or has had the opportunity to be represented) in the signing of this Lease and in the making of this waiver by independent legal counsel, selected of its own free will, and that it has had the opportunity to discuss this waiver with counsel. Tenant further acknowledges that it has read and understands the meaning and ramifications of this waiver provision.

 

27.        Additional Provisions Pertaining to Leased Personal Property .

 

(a)       Without limiting any other provision of this Lease, Tenant agrees that (i) title to the Leased Personal Property shall remain vested in Landlord; (ii) Tenant will not represent to any party that Tenant has title to the Leased Personal Property; (iii) the Leased Personal Property may not be used as collateral to secure any obligations of Tenant to any party; (iv) Tenant will not allow the Leased Personal Property to become encumbered in any way whatsoever; and (v) Tenant will not remove the Leased Personal Property from the Real Property without the written consent of Landlord. Tenant agrees that Landlord may file any financing statements or other documents Landlord deems reasonably necessary or desirable to protect or enforce its rights and interest in the Leased Personal Property and Tenant agrees to execute such documents as Landlord reasonably requests in connection therewith. In the event any of Leased Personal Property is lost, stolen, damaged, or destroyed, Tenant will be responsible for the full replacement of the same.

 

(b)        THE LEASED PERSONAL PROPERTY IS BEING PROVIDED TO TENANT IN “AS IS, WHERE IS” CONDITION, WITH ALL FAULTS. LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF MERCHANTABILITY, WITH RESPECT TO THE LEASED PERSONAL PROPERTY, AND ALL SUCH WARRANTIES AND REPRESENTATIONS ARE EXPRESSLY DISCLAIMED BY LANDLORD.

 

[Signature Page(s) and Guaranty Follow]

 

- 21 -

 

IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their duly authorized undersigned representatives as an instrument under seal as of the day and year first written above.

 

WITNESS:   LANDLORD:
    300 Park Street, LLC
       
    By: /s/ David Noble
    Name:  David Noble
    Title: President

 

- 22 -

 

    TENANT:
    KBS Builders, Inc.
       
    By: /s/ Daniel M. Koch
    Printed Name:  Daniel M. Koch
    Its: President

 

GUARANTY

 

For value received, and in consideration of and as an inducement to Landlord to enter into the foregoing Lease (the “Lease”) with Tenant, the undersigned, ATRM Holdings, Inc. (“Guarantor”), does hereby unconditionally guaranty to Landlord the complete and due performance and observation of each and every agreement, covenant, term, and condition of the Lease to be performed or observed by Tenant, including, without limitation, the payment of all Rent required under the Lease. The validity of this Guaranty and the obligations of the Guarantor hereunder shall not be terminated, affected, or impaired by reason of the granting by the Landlord of any indulgences to the Tenant. This Guaranty shall remain and continue in full force and effect with respect to any and all renewals, modifications, or extensions of the Lease, irrespective of whether Guarantor shall have received any notice of or consented to such renewal, modification, or extension. The liability of the Guarantor hereunder shall be primary, and in any right of action that shall accrue to the Landlord under the Lease or applicable law, the Landlord may proceed against Guarantor without having commenced any action against or having obtained any judgment against Tenant and/or may proceed against Guarantor and Tenant, jointly and severally. Guarantor hereby waives all guaranty and suretyship defenses. All of the terms and provisions of this Guaranty shall inure to the benefit of the successors and assigns of the Landlord and shall be binding upon the successors and assigns of Guarantor. Capitalized terms that are used, but not defined, in this Guaranty shall have the meaning ascribed thereto in the Lease.

 

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as an instrument under seal as of the date of the Lease.

 

    GUARANTOR:
    ATRM Holdings, Inc.
       
    By: /s/ Daniel M. Koch
    Printed Name:  Daniel M. Koch
    Its: President and Chief Executive Officer

 

- 23 -

 

List of Exhibits

 

Exhibit A – Description of the Leased Premises

 

Exhibit A-1-List of Leased Personal Property

 

Exhibit B – Base Rent if Tenant does not give a timely Rent Commencement Extension Notice

 

Exhibit C – Base Rent if Tenant does give a timely Rent Commencement Extension Notice

 

- 24 -

 

EXHIBIT A

 

(Description of Leased Premises)

 

*

 

 

EXHIBIT A-1

 

(Personal Property)

 

*

 

 

EXHIBIT B

(Base Rent if Tenant does not give a timely Rent Commencement Extension Notice)

 

Months Annual Base Rent ( Real Property ) Annual Base Rent - ( Leased Personal Property )

Total

Monthly Installment of Base Rent

Commencement Date

through

June 30, 2019

$0.00

$0.00

$0.00

July 1, 2019

through

March 31, 2020

$256,850.00

(Annual Rate)

$60,302.63

(Annual Rate)

$26,429.39

April 1, 2020

through

March 31, 2021

$261,987.00

$60,302.63

$26,857.47

April 1, 2021

through

March 31, 2022

$267,226.74

$60,302.63

$27,294.11

April 1, 2022

through

March 31, 2023

$272,571.27

$60,302.63

$27,739.49

April 1, 2023

through

March 31, 2024

$278,022.70

$60,302.63 

$28,193.78

April 1, 2024

through

March 31, 2025

$283,583.15

$60,302.63

$28,657.15

April 1, 2025

through

March 31, 2026

$289,254.81

$60,302.63

$29,129.79

April 1, 2026

through

March 31, 2027

$295,039.91

$60,302.63

$29,611.88

April 1, 2027

through

March 31, 2028

$300,940.71

$60,302.63

$30,103.61

April 1, 2028

through

March 31, 2029

$306,959.52

$60,302.63

$30,605.18

 

   

 

EXHIBIT C

(Base Rent if Tenant does give a timely Rent Commencement Extension Notice) 

 

Months Annual Base Rent ( Real Property ) Annual Base Rent - ( Leased Personal Property )

Total

Monthly Installment of Base Rent  

Commencement Date

through

September 30, 2019

$0.00

$0.00

$0.00

October 1, 2019

through

March 31, 2020

$280,200.00

(Annual Rate)

$65,784.68

(Annual Rate)

$28,832.06

April 1, 2020

through

March 31, 2021

$285,804.00

$65,784.68

$29,299.06

April 1, 2021

through

March 31, 2022

$291,520.08

$65,784.68

$29,775.40

April 1, 2022

through

March 31, 2023

$297,350.48

$65,784.68

$30,261.26

April 1, 2023

through

March 31, 2024

$303,297.49

$65,784.68

$30,756.85

April 1, 2024

through

March 31, 2025

$309,363.44

$65,784.68

$31,262.34

April 1, 2025

through

March 31, 2026

$315,550.71

$65,784.68

$31,777.95

April 1, 2026

through

March 31, 2027

$321,861.72

$65,784.68

$32,303.87

April 1, 2027

through

March 31, 2028

$328,298.95

$65,784.68

$32,840.30

April 1, 2028

through

March 31, 2029

$334,864.93

$65,784.68

$33,387.47

 

Exhibit 10.8

 

LEASE AGREEMENT

 

THIS LEASE AGREEMENT (this “Lease”) is made this 3rd day of April, 2019, by and between 56 Mechanic Falls Road, LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, Connecticut 06870 (“Landlord”), and KBS Builders, Inc., a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Tenant”). The parties hereby agree as follows:

 

LEASE INFORMATION AND DEFINITIONS

 

The following information and definitions are incorporated into and made a part of this Lease:

   
Leased Premises:

The “Leased Premises” means certain land located in the Town of Oxford, County of Oxford, and State of Maine, and being more particularly described on Exhibit A , attached hereto and made a part hereof, together with all improvements thereon and all rights and easements appurtenant thereto (the “Real Property”), together with those certain items of personal property listed on Exhibit A-1 , attached hereto and made a part hereof (the “Leased Personal Property”).

 

Term:

The “Term” means:

 

(a) an “Initial Term,” being a period commencing on the Acquisition Date (as defined in Section 28) (the “Commencement Date”) and ending at 5:00 p.m. on March 31, 2029, subject to adjustment and earlier termination as provided in the Lease; and

 

(b) if Tenant duly exercises its option to extend the term of this Lease for one or both Extension Terms as provided in the Lease, then also each such Extension Term for which Tenant has duly exercised such option.

 

   
Extension Terms:

The Extension Terms shall be two (2) separate, consecutive sixty (60) month periods (hereinafter referred to as "First Extension Term” and the “Second Extension Term,” respectively, and also referred to in the singular as an “Extension Term” and in the plural as the “Extension Terms”), all on the terms and conditions set forth in the Lease.

 

Rent Commencement Date:

Tenant’s obligations to pay Base Rent shall commence on August 1, 2019 (the “Rent Commencement Date”), provided , however , that Tenant shall have the right, exercisable only by giving written notice to Landlord prior to June 1, 2019 (the “Rent Commencement Extension Notice”), to elect to defer the Rent Commencement Date until November 1, 2019.

 

 

 

 

Base Rent:

(a) In the event that Tenant does not give Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit B , attached hereto and made a part hereof.

 

 

(b) In the event that Tenant gives Landlord a timely Rent Commencement Extension Notice as provided herein, the Base Rent for the Leased Premises during the Initial Term shall be as set forth on Exhibit C , attached hereto and made a part hereof.

 

(c) The Base Rent for the Leased Premises for each year of each Extension Term shall be shall be an amount which is equal to 100% of the prevailing market rates in effect at the time of Tenant’ s exercise of its extension right for property comparable to the Leased Premises in the vicinity of the Leased Premises (and, for clarity, shall include annual escalators consistent with such prevailing market), all as determined by a licensed commercial real estate broker or appraiser doing business in the greater Portland, Maine vicinity and chosen by Landlord, but in no event shall Base Rent for any year of any Extension Term be less than the Base Rent payable for the immediately preceding year of the Term.

   
Rent:

The term “Rent” means Base Rent and all other sums payable by Tenant under this Lease.

 

Taxes:

Without limiting the “net” nature of this Lease as provided in herein, Tenant shall pay all Taxes (as defined in this Lease).

 

Utilities:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall contract for and pay for all Utilities (as defined in this Lease).

 

Operating Expenses; Maintenance and Repairs:

Without limiting the “net” nature of this Lease as provided herein, Tenant shall pay 100% of all costs and expenses associated with the use, occupancy, operation, maintenance, repair, and/or replacement of the Leased Premises.

 

Permitted Use:

 

 

Subject in all events to the terms and conditions of the Lease, the Leased Premises shall be used only for purposes of a facility for the manufacture of modular homes and other components of modular home construction and associated administrative and general business offices of Tenant in connection therewith.

 

 

2

 

1. Leased Premises . Landlord leases to Tenant, in consideration of the Rent to be paid by Tenant and subject to the terms and conditions set forth herein, the Leased Premises. Tenant agrees that Tenant accepts and is leasing the Leased Premises in their “as is” condition.

 

2. Commencement and Term . The term of this Lease shall commence on the Commencement Date and shall be the Lease Term, unless earlier terminated or extended by mutual agreement of the parties or as otherwise provided in this Lease.

 

3. Rent; Net Lease .

 

(a) Tenant covenants and agrees to pay to Landlord at its address as set forth in the preamble to this Lease or at such other place as Landlord shall from time to time designate in writing, during the Lease Term, the Base Rent, without holdback or set-off, in advance, commencing on the Rent Commencement Date and continuing thereafter on the first day of each calendar month during the Lease Term. All other items of Rent shall be paid, without holdback or set-off, in accordance with the terms of this Lease. If any payment of Rent is received by Landlord more than five (5) days after the date when such payment is due, a late charge of five percent (5%) of the past due payment shall be assessed, due and payable immediately and without notice.

 

(b) Landlord and Tenant acknowledge and agree that this Lease is intended to constitute, and shall constitute, an absolutely ‘net” Lease such that the Rent shall provide Landlord with a “net” return for the Term, free of all expenses and charges with respect to the Leased Premises, all of which shall be Tenant’s responsibility. Accordingly, Tenant shall pay as additional Rent and discharge, at the times specified herein, or if no time is specified, before failure to pay the same shall give rise to any interest or penalty or create any risk of lien or forfeiture, each and every item of expense, of every kind and nature whatsoever, foreseen or unforeseen, ordinary or extraordinary, related to or arising from the Leased Premises, or by reason of, or in any manner connected with or arising from, the development, leasing, operation, management, maintenance, repair, replacement, use, and/or occupancy of the Leased Premises.

 

4. (Reserved.)

 

5. (Reserved.)

 

6. Permitted Use; Compliance with Laws .

 

(a) Tenant agrees to use and occupy the Leased Premises for the Permitted Use, and for no other purpose without the written consent of Landlord, and further agrees not to use the Leased Premises for any purpose deemed extra hazardous or not covered by insurance. Tenant acknowledges and agrees that Landlord shall have the right to adopt reasonable rules and regulations for the use and/or occupancy of the Leased Premises and Tenant agrees that it shall at all times observe and comply with such rules and regulations.

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(b) Tenant agrees to abide by and comply with all Laws (as hereafter defined) applicable to the Leased Premises and/or the use or occupancy of the Leased Premises. It is the responsibility of Tenant to determine all zoning information and secure all necessary permits, licenses, and approvals for Tenant’s use and occupancy of the Leased Premises. Without limiting the generality of the foregoing, Tenant agrees to maintain in full force and effect, during the Lease Term, at Tenant’s cost and expense, all permits, licenses, registrations, and approvals required under applicable Laws for the use and/or occupancy of the Leased Premises. Without limiting the “AS IS” nature of this Lease, Tenant acknowledges and agrees that Landlord has not made and is not making any representations or warranties as to the suitability of, or the ability to obtain any permits or approvals for, Tenant’s intended use of the Leased Premises.

 

(c) As used in this Lease, the term “Laws” means all federal, state, municipal or similar statute, law, ordinance, regulation, rule, code, order, requirement or rule of law (including common law).

 

7. Taxes .

 

(a) Tenant shall be responsible for the prompt payment of all taxes, levies, betterments, and assessments, and governmental impositions of every kind or nature, whether now existing or hereafter created, general or special, ordinary or extraordinary, foreseen or unforeseen, that may be charged, assessed, laid, levied, or imposed upon, or become a lien or liens against, the Leased Premises (including the Real Property and the Leased Personal Property) or this Lease, including any amount that Landlord may be required to pay to any governmental authority as sales tax, gross receipt tax, or any tax of like nature specifically measured as a percentage of, or fraction of, or other factors based upon the all or any portion of the Rent payable hereunder (whether in lieu of, or in addition to the current system of real estate taxation) (all amounts payable under this Section being referred to herein as “Taxes”).

 

(b) Tenant shall pay all Taxes , at Landlord’s option, either (i) to Landlord as additional Rent in estimated monthly installments, with the actual amount of Taxes reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated Taxes exceeds the actual Taxes for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual Taxes for such annual period exceeds the estimated payments made by Tenant to Landlord; or (ii) to Landlord within thirty (30) days after Landlord makes demand therefor, with copies of any bills for Taxes; or (iii) directly to the taxing authority, in which event Tenant shall provide to Landlord evidence of the prompt payment of all Taxes prior to the date the same are due without the accrual of any interest on such Taxes.

 

8. Utilities .

 

(a) Tenant shall make arrangements for , and pay on or before the date the same become due , all charges for or relating to gas, oil, electricity, water, sewer, septic, telecommunications, and all other services used at or supplied to the Leased Premises (collectively, “Utilities”) .

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(b) Landlord shall in no way be liable for any loss, expense, or damage (whether direct or indirect) that Tenant may sustain or incur by reason of any change, failure, interference, disruption, interruption, or defect in the supply or character of any Utilities serving the Leased Premises, regardless of its duration, or if the quantity or character of Utilities become unavailable to the Leased Premises or no longer suitable for Tenant’s requirements. Additionally, any such change, failure, interference, disruption, interruption, defect, unavailability, or unsuitability mentioned in this Section shall not: (i) constitute an actual or constructive eviction of Tenant, in whole or in part; (ii) entitle Tenant to any abatement or diminution of Rent, or any other costs due from Tenant pursuant to this Lease; (iii) relieve or release Tenant from any of its obligations under this Lease; or (iv) entitle Tenant to terminate this Lease.

 

9. Operation, Maintenance and Repairs .

 

(a) Tenant agrees that from and after the Commencement Date, Tenant will keep neat and clean and maintain in good and safe order, condition and repair, and in compliance with all Laws the entirety of the Leased Premises, including any and all alterations or improvements to the Leased Premises occurring after the date of this Lease. Tenant agrees to pay the costs for cleaning and janitorial services relating to the Leased Premises (including trash removal and trash hauling), which services shall be provided or caused to be provided by Tenant. Tenant shall be responsible for the plowing, shoveling, and treatment of snow and ice and all grounds keeping, including all landscaping and sweeping of pavement and other hardscaped surfaces. Tenant shall be responsible for all items of maintenance and all repairs to and replacements (except as otherwise provided in Section 18) of all buildings and improvements and all Building Systems (as hereafter defined), and all foundations, structural supports, walls, ceilings, windows (including plate glass), siding, roof structure, roofing materials, doors, plate glass, driveways, parking areas, fences and signs located in, on or at the Leased Premises) that the Leased Premises may require from time to time during the Term, whether interior or exterior, structural or non-structural, ordinary or extra-ordinary, foreseen or unforeseen, all to keep the Leased Premises in good and safe order, condition, and repairs, and in at least as good condition as the Leased Premises are in on the Commencement Date. The term “Building Systems” means all heating systems, ventilating systems, air conditioning systems, fire alarm systems, sprinkler systems, and other life safety systems, septic systems, water supply systems (including any water treatment or filtration systems), plumbing systems, electrical systems, storm water management facilities, and all other systems located at or serving the Real Property.

 

(b) Without limiting the generality of sub-section (a) of this Section, Tenant shall procure and maintain, with qualified vendors reasonably acceptable to Landlord, contracts providing for periodic inspections and maintenance of the heating, ventilating, and air conditioning (HVAC) systems, fire alarm, sprinkler, and life safety systems, the septic system (if any), the crane(s) and related appurtenances in the building, and the Hundegger saw, at such intervals as are reasonably required by Landlord, but in all events at least annually.

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10. Alterations, Renovations and Improvements . Tenant shall not make any alterations, renovations or improvements to the Leased Premises without obtaining Landlord’s prior written consent to the plans and specifications therefor and the contractor(s) to be retained by Tenant to perform such work, which shall not be unreasonably withheld, conditioned, or delayed in the case of cosmetic renovations that do not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, but otherwise shall be in Landlord’s sole discretion. Prior to any contractor or subcontractor (of any tier) providing or furnishing any labor, materials, or services in connection with any alterations, renovations, or improvements, Tenant shall obtain and furnish to Landlord the name and address of each such contractor and subcontractor. In addition, prior to any such labor, materials, or services being provided or furnished, Tenant shall furnish to Landlord a mechanic’s lien waiver and notice to prevent lien in a form prescribed by Landlord, duly executed by each such contractor or subcontractor who will furnish or provide labor, materials, and/or services. Tenant shall ensure that all such alterations, renovations and improvements are performed in a good and workmanlike and in compliance with all applicable Laws. In the event any lien is filed against the Leased Premises in connection with or arising out of any work performed at or materials, labor or other services supplied to the Leased Premises, Tenant shall cause the same to be discharged within thirty (30) days after such lien is filed. Tenant shall indemnify and hold Landlord harmless from and against all claims, demands, liabilities, liens, losses, costs and expenses (including reasonable attorneys’ fees) which may arise or be incurred by Landlord as a direct or indirect result of or in connection with such alterations, renovations and improvements, and Tenant shall be responsible for all costs, liabilities, and expenses arising out of such alterations, renovations and/or improvements. All alterations, renovations and improvements which may be made or installed by or on behalf of Tenant upon the Leased Premises and which in any manner are attached to the floors, walls or ceilings shall, at Landlord's option, remain upon the Leased Premises, and, upon termination of this Lease, shall be surrendered with the Leased Premises as a part thereof without disturbance, molestation or injury, provided, however, that Tenant’s furniture, equipment, other personal property, and trade fixtures (which, for avoidance of doubt, shall in no event include the Leased Personal Property or the crane(s) or related appurtenances located at the Leased Premises) may be removed by Tenant from the Leased Premises upon the expiration or termination of this Lease, subject to the provisions relating to removal thereof as provided in this Lease.

 

11. Signs . Tenant shall have the right to maintain the existing signage at the Real Property as of the Commencement Date and shall have the right to install additional signage that does not affect the structural elements of the improvements, the roof(s) of any buildings, or any of the Building Systems, provided, however, that all signage shall be at Tenant’s sole cost and expense, and shall comply with all applicable Laws.

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12. Surrender; Holdover . Tenant shall vacate and surrender the Leased Premises to Landlord at the expiration or sooner termination of the Lease Term and the same shall be in the same condition as Tenant is required to maintain the same during the Lease Term, free of all of Tenant’s personal property except as may otherwise be provided herein, “broom clean,” and otherwise in accordance with the provisions of the Lease. Tenant shall have no right to holdover beyond the expiration of the Lease Term. If Tenant continues to occupy the Leased Premises after the end of the Lease Term, such continued occupancy shall be deemed a tenancy-at-sufferance even if Landlord accepts any payment from Tenant, but in the event that a court of competent jurisdiction deems such acceptance of a payment to constitute acceptance of “rent”, such acceptance shall create no rights in Tenant beyond a tenancy-at-will under the terms and conditions stated herein but at a Base Rent rate equal to one hundred fifty percent (150%) of the Base Rent applicable immediately preceding the end of the Lease Term, plus all additional Rent, until (i) Tenant shall vacate the Leased Premises; (ii) the termination of the tenancy-at-will; or (iii) Landlord shall give notice of a different rental amount. Nothing contained in this Section shall be deemed to (a) constitute consent by Landlord to such occupancy or holdover by Tenant; (b) confer any rights on Tenant as more than a tenant-at-sufferance or, if Landlord accepts any rental payments applicable to such period of holding over, a tenant-at-will; or (c) relieve Tenant from liability for damages suffered by Landlord as a result of such holding over.

 

13. Removal of Tenant’s Property . Tenant’s trade fixtures, personal property, furniture and equipment, other than those items which are to remain or which Landlord elects to have remain at the Leased Premises as provided in Section 10 of this Lease, may be removed by Tenant at the termination of this Lease, provided (a) Tenant is not then be breach of any provision of this Lease; (b) such removal shall not cause any material damage to any portion of the Leased Premises, and any other damage created by such removal shall be repaired by Tenant at Tenant's expense prior to the expiration of the Lease Term to at least as good condition as existed when possession of the Leased Premises was delivered to Tenant; and (c) such removal shall be made before the termination of the Lease Term.

 

14. Subletting and Assignment . Tenant shall not assign this Lease, in whole or in part, or sublet the Leased Premises or any portion thereof, or encumber the leasehold interest created by this Lease in any manner (including the creation of any security interest in or other pledge of or lien upon the Leased Personal Property) without the prior written consent of Landlord, which may be withheld in Landlord’s sole discretion during the first twenty-four full calendar months of the Term, and thereafter will not be unreasonably withheld. No assignment or sublease shall operate to release Tenant from any of its obligations under this Lease. Each sublease of the Leased Premises or any portion thereof must contain a release of and waiver of claims against Landlord and the other Releasees (as that term is defined in this Lease), in form and content acceptable to Landlord, and must require the subtenant’s property insurer to issue in favor of Landlord and the other Releasees waiver of subrogation rights endorsements to all policies of property insurance carried in connection with the Leased Premises and the contents thereof. Every transfer by levy or sale on execution, or other legal process, every transfer in bankruptcy, every transfer by merger, consolidation, or by operation of Law, every transfer of a controlling interest in Tenant, and every transfer under any compulsory procedure or order of court shall be deemed to constitute an “assignment” within the meaning of this Lease. Any attempted assignment or sublease in violation of this Section shall, at Landlord’s option, be void and shall constitute a default under this Lease. Consent by Landlord to an assignment or sublease in one instance shall not operate to release the requirement that consent from Landlord be obtained for any further or subsequent assignment or sublease. Tenant shall pay all fees and expenses, including reasonable attorneys’ fees, incurred by Landlord in connection with any proposed subletting or assignment, irrespective of whether Landlord’s consent is in fact granted.

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15. Indemnification and Insurance .

 

(a) Tenant agrees to maintain in full force during the Lease Term insurance as follows:

 

(i) commercial general liability insurance, written on an occurrence basis, with a deductible in an amount not to exceed $10,000.00, and providing:

 

(A) minimum limits of (y) $1,000,000.00 per occurrence with $3,000,000.00 annual aggregate limit for bodily injury (including death) and property damage; and (z) $3,000,000.00 in the annual aggregate with respect to products and completed operations;

 

(B) coverage for damages arising out of bodily injury (including death) sustained by any person or persons or arising out of damage to or destruction of property;

 

(C) coverage for damages arising out of premises liability, personal injury and advertising injury;

 

(D) pollution liability coverage for sudden and accidental pollution;

 

(E) for extension of such coverage to include liability for the operation of non-owned motor vehicles;

 

(F) specific coverage for Tenant’s indemnification obligations under this Lease (but neither this provision nor such coverage shall be deemed to limit any of Tenant’s obligations under this Lease);

 

(G) that Tenant’s commercial general liability insurance is provided on a primary and non-contributory basis;

 

(H) that Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time are named as additional insureds by an endorsement provided on ISO Form 2026 (1185) or its equivalent, without modification, or such other endorsement as is acceptable to Landlord, acting reasonably; and

 

(I) for waiver of subrogation in favor of Landlord, Landlord’s mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

(ii) Automobile liability insurance covering all motor vehicles owned, leased, or licensed by Tenant, covering injury to or death of one or more persons or damage to or destruction of property, with a minimum limit of liability of $3,000,000.00 for each accident.

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(iii) Workers compensation insurance in accordance with the requirements of all applicable Laws, and employers liability insurance with limits of at least $1,000,000.00, with such workers compensation insurance and employers liability insurance providing for waiver of subrogation in favor of Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), and any other persons reasonably designated in writing by Landlord from time-to-time.

 

(iv) Umbrella excess liability insurance in a minimum amount of $10,000,000.00, on a following form basis over the insurance described in clauses (i) through (iii), above.

 

(v) Special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all personal property and trade fixtures owned by or within the care, custody or control of Tenant (including the Leased Personal Property), with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such property, without co-insurance provisions, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as loss payee(s) with respect to the Leased Personal Property and additional insured(s). Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

(vi) Until such time, if any, as Landlord elects to carry property insurance for the buildings and improvements located on the Leased Premises, special causes of loss form (also sometimes known as “all risk”) property insurance insuring, on a replacement cost basis (without any deduction for depreciation), all buildings and improvements (including fixtures) located on the Leased Premises, with limits in an amount of not less than one hundred percent (100%) of the full replacement cost of such buildings and improvements, and in all events sufficient at all times to avoid causing the insured to be or become a co-insurer, and with a deductible of not more than $10,000.00, and with Landlord (and Landlord’s mortgagee(s) of the Leased Premises from time-to-time) named as loss payee(s) and additional insured(s). Such policy(ies) of property insurance must insure against fire, sprinkler leakages, and earthquake, flood and collapse, and all other perils as are from time to time included in the standard special causes of loss form (also sometimes known as “all risk”) coverage;

 

(vii) business interruption insurance covering all of Tenant’s obligations under this Lease with respect to the payment of Rent for a period of at least eighteen (18) months.

 

(viii) Such other insurance policies, such other endorsements, such other deductibles, and/or such other insurance policy limits as may from time to time be reasonably required by Landlord, provided that, at the time, such other insurance policies, endorsements, deductibles, and/or insurance policy limits are commonly carried for premises and/or buildings or improvements similar in construction, design, general location, use, operation, and occupancy to those located on or appurtenant to the Leased Premises or for operations similar to those conducted on or from the Leased Premises.

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(b) Without limiting the exculpatory provisions of this Lease, each policy of property insurance maintained by Tenant under this Lease shall contain waivers of subrogation in favor of Landlord and all other Releasees.

 

(c) All insurance required to be obtained and maintained by Tenant pursuant to this Section must be with insurers authorized to transact insurance business and cover risks in the State of Maine and that are rated "A-" or better by A.M. Best Company, Inc. or other insurance companies of recognized responsibility acceptable to Landlord, acting reasonably.

 

(d) The policies of insurance required to be maintained by Tenant under this Lease shall be endorsed to require that each policy will not be cancelled or materially changed without at least thirty (30) days prior written notice to Landlord.

 

(e) Tenant shall deliver to Landlord copies of each policy of insurance (including all endorsements) required to be maintained by Tenant under this Lease or such other evidence of each such policy of insurance (and all required endorsements) as is acceptable to Landlord, acting reasonably.

 

(f) If Tenant fails to obtain, maintain and/or pay for the insurance required by this Lease at the times and for the amounts and duration specified herein, Landlord has the right, but not the obligation, at any time and from time to time, to obtain such insurance and/or pay the premiums for such insurance, without limiting any other rights or remedies available to Landlord for such failure. In such event, Tenant shall repay Landlord, immediately upon demand, all sums so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith (including reasonable attorneys’ fees), all without prejudice to any other rights or remedies available to Landlord.

 

(g) Landlord shall have the right, at any time during the Term, to elect, by giving written notice to Tenant, to carry property insurance for the buildings and improvements located on the Leased Premises, in which event, Tenant shall pay to Landlord the amount of all premiums for such property insurance procured and maintained by Landlord with respect to the Real Property. Tenant shall pay such amounts to Landlord in estimated monthly installments, with the actual amount of incurred by Landlord for such premiums being reconciled against such estimated monthly installments annually and, within thirty (30) days of such reconciliation, Landlord remitting to Tenant the amount by which the payment of estimated premiums exceeds the actual premiums for such annual period (provided Tenant is not then in breach of this Lease), or Tenant paying to Landlord the amount by which the actual premiums for such annual period exceeds the estimated payments made by Tenant to Landlord.

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(h) Tenant acknowledges and agrees that such property insurance as Landlord elects to purchase with respect to the Real Property shall be for the sole benefit of Landlord and that such insurance shall not cover any personal property, trade fixtures, leasehold improvements, or other property or appurtenances owned by or within the care, custody, or control of Tenant, or otherwise located in the Leased Premises (collectively, “Tenant’s Property”) and that in the event of damage to or loss of any of Tenant’s Property, neither Landlord, its mortgagee(s) of the Leased Premises from time-to-time (if any), nor any of the shareholders, members, directors, managers, officers, employees, or agents of Landlord or any such mortgagee(s) (each in the singular “Releasee”, and in the plural, “Releasees”) shall have any obligation to repair or replace the same. Notwithstanding any exception to Tenant’s indemnification obligations under this Lease, Tenant does hereby expressly release all Releasees of and from, and agrees to indemnify, hold harmless, and defend Releasees from and against, any and all claims for damages to or loss of any of Tenant’s Property, regardless of the cause thereof, including, damage or loss due to any Releasee’s negligence.

 

(i) Tenant shall indemnify and hold all Releasees harmless and, if requested by Landlord, defend such Releasee(s) with counsel reasonably satisfactory to Landlord, from and against any and all liabilities, losses, claims, causes of action, damages, costs, and expenses (including reasonable attorney’s fees) incurred by or threatened against any Releasee arising out of (i) any occurrence on the Leased Premises or the use of the Leased Premises by Tenant, its employees, agents, licensees, or invitees, except to the extent caused by the negligence or willful misconduct of Landlord (but such exception shall not apply to limit the application of sub-section (h) of this Section); or (ii) Tenant’s breach of any provision of this Lease. Tenant agrees that the foregoing agreement to indemnify, defend, and hold harmless extends to liabilities, losses, claims, causes of action, damages, costs and expenses (including reasonable attorney’s fees) arising out of claims of Tenant's employees without regard to any immunity, statutory or otherwise, including any immunity under the workers compensation Laws of Maine or any other applicable jurisdiction, which immunity Tenant hereby waives, but only for the purposes of Tenant’s obligations to the Releasees under this sub-section. Tenant's obligations under this sub-section shall survive the termination of this Lease.

 

16. Hazardous Materials . Tenant covenants and agrees that Tenant will not permit any Hazardous Substances (as hereafter defined) to be stored, generated, or released from the Leased Premises, other than Hazardous Substances incidental to Tenant’s use, maintenance, and operation of the Leased Premises for the Permitted Use provided that Tenant shall store, generate, handle, and dispose of all such Hazardous Substances in full compliance with all applicable laws. Tenant hereby covenants and agrees to indemnify, hold harmless, and, if requested by Landlord, defend, Landlord from and from and against any and all demands, claims, causes, of action, losses, liabilities, damages, fines, costs, and expenses (including reasonable attorneys’ fees, court costs and clean-up costs) that may arise out of any Hazardous Substances located at or generated or released from the Leased Premises, irrespective of whether first occurring prior to or after the Commencement Date. The term “Hazardous Substances” means any flammables, explosives, radioactive materials, gasoline, oil, other petroleum products, lead paint, urea formaldehyde (including urea formaldehyde foam insulation), asbestos, asbestos containing materials, polychlorinated biphenyls, and any other hazardous materials, hazardous waste, hazardous matter, hazardous or toxic substances, chemical pollutants, and other materials or substances defined in or regulated by Environmental Laws. The term “Environmental Laws” means (A) the Clean Water Act; (B) the Clean Air Act; (C) the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act; (D) the Toxic Substance Control Act; (E) the Resource Conservation and Recovery Act; (F) the Hazardous Materials Transportation Act; and/or (G) any similar state Laws regulating pollution or contamination of the environment The obligations of Tenant under this Section shall survive the termination of this Lease.

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17. Right to Enter . Tenant agrees to permit Landlord or its duly authorized agents to enter on the Leased Premises during Tenant's normal business hours, with reasonable prior notice, to examine the condition of said Leased Premises, exercise any rights of Landlord under this Lease, and/or to show the same to prospective tenants, lenders, or purchasers, provided such access to the Leased Premises shall not unnecessarily interfere with Tenant's use of the Leased Premises or the conduct of Tenant's business activities thereon. Notwithstanding the foregoing, Landlord shall have the right (but not the obligation) to enter the Leased Premises without prior notice in the event of an emergency in which prior notice is not practicable in the circumstances.

 

18. Total or Partial Destruction .

 

(a) In the event the improvements on the Real Property (including any Building Systems) are damaged or destroyed by fire or other peril (a “Casualty”), Tenant shall give Landlord notice of such Casualty as soon as reasonably possible after the Casualty. Landlord shall have the right to elect whether to have such improvements rebuilt or restored. In the event that Landlord elects not to have the improvements rebuilt or restored, and the nature of the Casualty is such as would, absent such rebuilding or restoration, materially impair Tenant’s ability to use and occupy such Leased Premises in substantially the same manner as they were used prior to the Casualty, this Lease shall terminate effective as of the date of the Casualty. In the event that Landlord elects to have the improvements rebuilt or restored, this Lease shall remain in effect without reduction or abatement of Rent, and the following provisions shall apply:

 

(i) Landlord shall, with reasonable promptness rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements, provided , however , that in no event shall Landlord be obligated to expend for any such rebuilding or restoration an amount in excess of the insurance proceeds actually collected by Landlord on account of the Casualty, less the costs and expenses (including reasonable attorneys’ fees) incurred by Landlord in collecting such proceeds.

 

(ii) Notwithstanding the preceding clause (i), Landlord shall have the right to elect, by giving written notice to Tenant, to have Tenant rebuild or restore the Leased Premises, in which event Tenant shall, with reasonable promptness, and in all events within twelve (12) months of the date of Landlord’s election notice, rebuild or restore such improvements to at least substantially the same condition, quality, and class as existed prior to the Casualty, using the proceeds of insurance covering such improvements. The selection of all engineers, architects, and contractors engaged in connection with such rebuilding or restoration and all plans and specifications for such rebuilding or restoration, shall be subject to review and approval by Landlord. In the event that Landlord makes the election to have Tenant rebuild or restore as provided in this clause (ii), all proceeds payable by reason of any Casualty under all applicable policies of insurance (whether Tenant is carrying such insurance, or Landlord has elected to do so as provided in this Lease) shall be paid to Landlord or its mortgagee, and such proceeds will be held by Landlord or its mortgagee in an interest-bearing account and, provided Tenant is not in breach of this Lease, shall be made available for rebuilding or restoring the improvements, and shall be paid by Landlord (or such mortgagee) from time- to-time during the progress of construction for the costs of such reconstruction or repair, all subject to and in accordance with reasonable terms, conditions, and construction disbursement procedures specified by Landlord and/or such mortgagee. Any excess proceeds of insurance (and accrued interest) remaining after the completion of the restoration or reconstruction of the Leased Premises shall be paid to Landlord.

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(b) Loss or Damage affecting Leased Personal Property . In the event of any loss or destruction of or damage to any of the Leased Personal Property, Tenant shall, unless Landlord or its mortgagee elects to retain any proceeds of insurance allocable to such Leased Personal Property, be responsible for the repair and replacement of such lost, destroyed, or damaged Leased Personal Property, with the restored or replacement items of at least equivalent condition, quality, class, and value to the item(s) of Leased Personal Property prior to such loss, destruction, or damage. All proceeds payable under all applicable policies of insurance by reason of any loss or destruction of or damage to any Leased Personal Property shall be paid to Landlord or its mortgagee. Unless Landlord or its mortgagee elect to retain such proceeds of insurance allocable to such Leased Personal Property, such proceeds will be held by Landlord or its mortgagee in an interest-bearing account and, provided Tenant is not in breach of this Lease, shall be made available for such repair or replacement, and shall be paid out by Landlord (or such mortgagee) from time to time during the progress of the repair or replacement for the reasonable costs of such repair or replacement, all subject to and in accordance with reasonable terms, conditions, and disbursement procedures specified by Landlord and/or such mortgagee. Any excess proceeds of insurance (and accrued interest) remaining after the completion of the repair or replacement of such Leased Personal Property shall be paid to Landlord. There shall be no abatement or reduction of Rent on account of any such loss, destruction, or damage.

 

(c) Tenant shall be responsible for all insurance deductibles applicable to any Casualty affecting any of the improvements on the Real Property (including Building Systems) and/or any loss or destruction of or damage to any of the Leased Personal Property.

 

(d) The provisions of this Section shall be subject and subordinate to the provisions of any mortgage now or hereafter placed upon the Real Property, the provisions of any security agreement now or hereafter affecting the Leased Personal Property, and the requirements of any mortgagee holding such mortgage or secured party holding the security interest under such security agreement.

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19. Condemnation .

 

(a) “Condemnation” means any taking of title to or any interest in the Leased Premises or any part thereof or any other property used in connection with the Leased Premises (including for ingress, egress, parking, septic service, water supply or other services or utilities) by exercise of any right of eminent domain by, or by any similar proceeding or act of, any person having the power and legal authority to do so (or by purchase in lieu thereof). For the purposes of this definition, the effective date of any Condemnation shall be deemed to be the later of: (i) the date when title to the Leased Premises or part thereof or such other property is transferred by such proceeding or act of the condemning authority, and (ii) the date when Tenant o is no longer permitted to occupy the Leased Premises or to use such other property.

 

(b) “Substantial Condemnation” means any Condemnation that affects all or a substantial portion of the Leased Premises or any Condemnation that has or is reasonably likely to have a materially adverse effect on any business operations then being conducted on the Leased Premises. Tenant may waive its right to treat as a Substantial Condemnation any Condemnation that would otherwise qualify as such.

 

(c) “Insubstantial Condemnation” means any Condemnation that is not a Substantial Condemnation.

 

(d) If a Substantial Condemnation occurs, this Lease shall terminate upon the effective date of the Substantial Condemnation.

 

(e) If an Insubstantial Condemnation occurs, then this Lease shall continue in full force and effect without reduction or abatement of Rent.

 

(f) In the event of any Condemnation, Landlord shall be entitled to receive and retain the amounts awarded for the Leased Premises, and Tenant shall be entitled to receive and retain any amounts which may be specifically awarded to it in any such condemnation proceedings because of its business loss or the taking of its trade fixtures, furniture, or other property.

 

20. Force Majeure . In any case where either party is required to perform any act pursuant to this Lease, except for Tenant’s monetary obligations hereunder, the time for the performance thereof shall be extended by a period of time equal to the period of any delay caused by or resulting from an act of God, war, civil commotion, fire or other casualty, labor difficulties, shortages of energy or labor, government regulations, or delays caused by one party to the other, whether such period be designated by a fixed date, a fixed time, or as a reasonable date or time.

 

21. Quiet Enjoyment . Tenant, on paying the Rent and performing and observing the covenants in this Lease, may hold and enjoy the Leased Premises for the Term without unreasonably interference from any person claiming by, through, or under Landlord, subject and subordinate to all provisions of this Lease.

14

 

 

22. Default.

 

(a) In the event that:

 

(i) Tenant shall fail to pay when due the Rent or any other sums payable hereunder when due and such failure remains uncured for five (5) days after Landlord delivers a default notice to Tenant for such failure to pay rent ; or

 

(ii) any petition in bankruptcy shall be filed by Tenant or any guarantor hereof or other petition or proceeding shall be filed or commenced by Tenant or any guarantor hereof to declare Tenant insolvent, or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations, or Tenant or any such guarantor admits its inability to pay its debts, or Tenant or any such guarantor makes an assignment for the benefit of creditors; or

 

(iii) any bankruptcy petition or proceeding shall be filed against Tenant or any guarantor hereof or to otherwise declare Tenant or any guarantor hereof bankrupt or insolvent or to delay, reduce or modify Tenant’s or any such guarantor’s debts or obligations or a receiver, trustee or other similar type of appointment or court appointee or nominee is appointed for Tenant or any such guarantor or any of the property of Tenant or any such guarantor, and such petition, appointment or proceeding is not dismissed within sixty (60) days after it is commenced; or

 

(iv) the leasehold interest of Tenant is levied upon or attached by process of law, including the filing of any mechanic’s lien, and such levy, lien, or attachment is not dissolved within thirty (30) days after it is made; or

 

(v) Tenant shall abandon the Leased Premises during the Lease Term; or

 

(vi) Tenant shall assign this Lease or sublet any portion of the Leased Premises, or attempt to do either of the foregoing, in violation of this Lease; or

 

(vii) Tenant violates or fails to observe or comply with any Laws applicable to the Leased Premises, Tenant’s use thereof, or Tenant's operations, activities or conduct of business at or from the Leased Premises; or

 

(viii) any other event, occurrence, act, or omission described in any provision of this Lease as constituting a “default” or an “Event of Default” occurs;

 

(ix) Tenant shall neglect or fail to perform or observe any of the other covenants, terms, provisions or conditions contained in this Lease and, if the neglect or failure is capable of being cured, such neglect or failure continues for more than thirty (30) days after written notice thereof ( provided , however , that if such neglect or failure is capable of being cured, but is not capable of being cured within said thirty (30) day period, then Tenant shall have such additional period of time, not to exceed an additional sixty (60) days, as is reasonably necessary to cure the same provided Tenant commences to cure within said thirty (30) day period and diligently and continuously prosecutes the cure to completion); or

15

 

 

(x) there is a default by Tenant under (A) that certain Lease Agreement of even or near date herewith between Tenant and 947 Waterford Road, LLC pertaining to property located in the Town of Waterford, County of Oxford, and State of Maine; and/or (B) that certain Lease Agreement of even or near date herewith between Tenant and 300 Park Street, LLC pertaining to property located in the Town of Paris, County of Oxford and State of Maine, and any such default continues beyond the expiration of applicable notice and cure periods (if any),

 

then, and in any of said cases (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance), and without limitation of any other remedies that might be available to Landlord under this Lease, at law, or in equity, Landlord lawfully may, immediately or at any time thereafter, terminate this Lease by sending written notice of termination to Tenant, or, subject to compliance with applicable Laws, enter into and upon the Leased Premises or any part thereof in the name of the whole and repossess the same as of its former estate, and expel Tenant and those claiming through or under it and remove it or their effects without being deemed guilty of any manner of trespass, in each case without prejudice to any rights or remedies which might otherwise be available to Landlord for collection of Rent and other damages for breach of covenant, and upon entry as aforesaid or upon sending of such notice, this Lease shall terminate.

 

(b) Without limiting other remedies of Landlord at law or in equity for any breach of or on account of termination of this Lease, Tenant covenants that in case of such termination under sub-section (a) of this Section, Tenant shall pay to Landlord the unpaid Rent owed to Landlord through the time of termination, plus interest thereon at the rate of 18% per annum from the date the same was due until paid; and (ii) at the election of Landlord, either:

 

(1) the present value of a sum which, at the time of such termination of this Lease is equal to (A) the aggregate of the Rent which would have been payable by Tenant for the period commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant; minus (B) the fair market rental value of the Leased Premises (after deducting reasonable projections for Landlord’s costs and expenses of re-letting the Leased Premises, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant); or

 

(2) for the period of time commencing upon such termination of this Lease and continuing through the date this Lease would have terminated had there been no default by Tenant hereunder, the difference, if any, between the Rent which would have been due had there been no such termination and the amount being received by Landlord as rent from a replacement Tenant of Leased Premises, if any. In addition, Tenant shall pay to Landlord all costs and expenses of such re-letting, including advertising expenses, brokerage commissions, reasonable attorneys’ fees, and commercially reasonable costs of repairing, renovating, or otherwise altering the Leased Premises to suit the new tenant.

 

(c) If Tenant shall default in the performance or observance of any covenant, agreement, or condition in this Lease contained on its part to be performed or observed and shall not cure any such default as provided herein, Landlord may, at its option, without waiving any claim for damages or any other right or remedy for breach of this Lease, at any time thereafter, cure such default. Any amount paid or any liability incurred by Landlord in so doing shall be deemed paid or incurred for the account of Tenant, and Tenant agrees to immediately reimburse Landlord therefor, as additional Rent.

16

 

 

(d) Tenant shall pay all reasonable attorneys’ fees incurred by Landlord in connection with the enforcement of Tenant’s obligations under this Lease.

 

(e) Landlord shall in no event be in default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform, or failed diligently to attempt to perform, such obligations within thirty (30) days or such additional time as is reasonably required to correct any such default after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation.

 

(f) In no event shall Landlord be liable to Tenant for incidental, consequential, or punitive damages in connection with any matter arising out of this Lease or the Leased Premises. Without in any way limiting or impairing the effect of the other provisions of this Lease, Tenant shall neither assert nor seek to enforce any claim arising out of this Lease or out of the use or occupancy of the Leased Premises against Landlord, its shareholders, directors, officers, employees, or agents, or any of its or their assets other than the value of Landlord’s interest in the Leased Premises and Tenant agrees to look solely to such interest and insurance coverage for the satisfaction of any claim arising out of this Lease or out of the use or occupancy of the Leased Premises.

 

23. Sale or Mortgage; Estoppel; Subordination .

 

(a) Nothing contained in this Lease shall limit Landlord's right to sell, mortgage, or otherwise encumber its fee interest in the Leased Premises, or affect Landlord's right to assign this Lease or the Rent payable under this Lease, whether as further security under a fee mortgage or otherwise. Any such assignment of this Lease or of the Rent payable under this Lease shall be honored by Tenant.

 

(b) In the event Landlord shall sell, transfer, or otherwise convey the Leased Premises, Landlord, upon the written assumption by the transferee of the obligations arising hereunder after the date of such transfer, shall be entirely freed and relieved of all covenants and obligations of Landlord hereunder. Nothing in the preceding sentence shall be construed to impair Tenant’s leasehold interest under this Lease so long as Tenant performs and observes the covenants and terms of this Lease on its part to be performed and observed.

 

(c) This Lease shall, at Landlord’s option, be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the Leased Premises, and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination, Tenant's right to quiet possession of the Leased Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the Rent and observe and perform all of the provisions of this Lease. If any mortgagee, trustee, or ground lessor shall elect to have this Lease made prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior to or subsequent to the date of said mortgage, deed of trust, or ground lease or the date of recording thereof. Tenant agrees to execute any documents required to effectuate an attornment, a subordination, or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Tenant's failure to execute such documents within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

17

 

 

(d) At any time, and from time to time, upon the written request of Landlord or any mortgagee or prospective purchaser of the Leased Premises, Tenant, within ten (10) business days after such written request, agrees to execute, acknowledge and deliver to Landlord and/or mortgagee, without charge, an estoppel certificate which shall contain (i) a certification that this Lease is unmodified and in full force and effect or, if modified, a statement of the nature of any such modification and a certification that this Lease, as so modified, is in full force and effect; (ii) a certification of the date to which the Rent payable by Tenant are paid (including any payments in advance); (iii) a certification that Tenant is not in default hereunder and that there are not, to Tenant's knowledge, any uncured events of default on the part of Landlord hereunder, or a specification of such events of default if any are claimed by Tenant; and (iv) such other commercially reasonable certifications as are identified in such request. Tenant's failure to deliver such estoppel certificate within the time frame set forth above shall, at Landlord’s option, constitute an Event of Default hereunder and shall, at Landlord’s option, be conclusive proof that this Lease is in full force and effect without modification except as may be represented by Landlord, that there are no uncured defaults in Landlord's performance of Landlord's obligations under this Lease, and that not more than one month's Rent has been paid in advance.

 

(e) If Landlord desires to finance, refinance, or sell the Leased Premises, Tenant hereby agrees to deliver to any lender or purchaser designated by Landlord, and cause any guarantor to so deliver, such financial statements and other financial information pertaining to Tenant and such guarantor as may be reasonably required by such lender or purchaser. Tenant's failure to provide such information or cause such information to be provided within ten (10) days after written demand shall constitute an Event of Default by Tenant hereunder.

 

24. Notices . Any notice, request, demand, approval or consent given or required to be given under this Lease shall be, unless otherwise stated, in writing and shall be deemed to have been given (i) when hand delivered to the other party; or (ii) on the day on which the same shall have been mailed by United States registered or certified mail, return receipt requested, with all postage prepaid, or by Federal Express or similar nationally-recognized overnight courier service that provides evidence of delivery, to the address of the party to receive such notice as set forth in the preamble hereof, provided that either party may, by such manner of notice, add or substitute one or more persons or addresses for provision of such notice.

18

 

 

25. Tenant Representations .

 

(a) Neither Tenant nor any key personnel of Tenant nor any of Tenant’s underlying beneficial owners have engaged in any dealings or transactions, directly or indirectly, (i) in contravention of any U.S., international or other anti-money laundering regulations or conventions, including without limitation the United States Bank Secrecy Act, the United States Money Laundering Control Act of 1986, the United States International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, Trading with the Enemy Act (50 U.S.C. §1 et seq., as amended), any foreign asset control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated thereunder (collectively, the “ Patriot Act ”), or any order issued with respect to anti-money laundering by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“ OFAC ”); or (ii) in contravention of Executive Order No. 13224 issued by the President of the United States on September 24, 2001 (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), as may be amended or supplemented from time to time (“ Executive Order 13224 ”); or (iii) on behalf of terrorists or terrorist organizations, including those persons or entities that are included on any relevant lists maintained by the United Nations, North Atlantic Treaty Organization, Organization of Economic Cooperation and Development, OFAC, Financial Action Task Force, U.S. Securities & Exchange Commission, U.S. Federal Bureau of Investigation, U.S. Central Intelligence Agency, U.S. Internal Revenue Service, or any country or organization, all as may be amended from time to time.

 

(b) Neither Tenant nor any key personnel of Tenant nor any of the underlying beneficial owners of Tenant is or will be a person or entity (i) that is listed in the Annex to or is otherwise subject to the provisions of Executive Order 13224; or (ii) whose name appears on OFAC’s most current list of “Specially Designated Nationals and Blocked Persons,” (which list may be published from time to time in various mediums including, but not limited to, the OFAC website, http:www.treas.gov/ofac/t11sdn.pdf ); or (iii) who commits, threatens to commit or supports “terrorism”, as that term is defined in Executive Order 13224; or (iv) who has been associated with or is otherwise affiliated with any entity or person listed above.

 

(c) Tenant represents that it has all requisite power and authority to enter into this Lease and the person executing this Lease on behalf of Tenant represents that he or she has all requisite power and authority to do so.

 

26. Miscellaneous Provisions .

 

(a) Invalidity of Particular Provisions . If any term or provision of this Lease, or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by applicable Laws.

 

(b) Governing Law . This Lease, and all claims or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of or relate to this Lease, shall be governed by and enforced in accordance with the internal Laws of the State of Maine, including its statutes of limitations, without regard or reference to conflicts of law principles.

19

 

 

(c) Interpretation . Whenever the word “include,” “includes,” or “including” is used in this Lease, it is deemed to be followed by the words “without limitation.” The terms “this Lease,” “hereof,” “herein,” “hereby,” “hereunder” and similar expressions refer to this Lease as a whole and not to any particular section of this Lease unless the context otherwise requires. The word “person” includes any individual, corporation, firm, association, partnership (general or limited), joint venture, limited liability company, trust, estate or other legal entity. The section and sub-section headings throughout this instrument are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify, or aid in the interpretation, construction, or meaning of the provisions of this Lease. Whenever in this Lease provision is made for the doing of any act by any party, it is understood and agreed that said act shall be done by such party at its own cost and expense, unless a contrary intent is expressed.

 

(d) Entire Agreement; Binding Effect . All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and may be modified or altered only by agreement in writing between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change, or modify any of the provisions hereof. All rights, obligations and liabilities contained herein given to, or imposed upon, Landlord and Tenant shall extend to and bind the several respective administrators, trustees, receivers, legal representatives, successors, heirs and permitted assigns of Landlord and Tenant. If the “Tenant” under this Lease consists of more than one person or entity, each such person and/or entity shall be bound jointly and severally by the terms, covenants and agreements herein and jointly and severally liable for all obligations arising hereunder.

 

(e) Language . Words of any gender used in this instrument shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, unless the context otherwise requires.

 

(f) Recording; Notice of Lease . Landlord and Tenant agree that this Lease shall not be recorded. The parties agree that at the request of either party, they will execute, acknowledge, and deliver a notice or memorandum of this Lease in recordable form for recording in the Oxford County Registry of Deeds. The requesting party shall bear the expense of recording such notice or memorandum. The Memorandum of Lease shall not be construed to vary the terms and conditions hereof. Landlord and Tenant also agree that, upon the request of either party, they will execute, acknowledge, and deliver a commercially reasonable instrument in recordable form with respect to the termination date of this Lease.

 

(g) Timeliness of Landlord’s Notices . Landlord's failure during the Lease Term to prepare or deliver any of the statements, notices, or bills, or invoices for any sum payable by Tenant under this Lease shall not in any way cause Landlord to forfeit or surrender its rights to collect any amount that may have become due and owing from Tenant during the Lease Term.

20

 

 

(h) Waiver of Jury Trial . Tenant, for itself and its heirs, successors, and assigns, does hereby WAIVE THE RIGHT TO A TRIAL BY JURY in any action or proceeding based upon, or related to, the subject matter of this Lease. This waiver is knowingly, intentionally, and voluntarily made by Tenant and Tenant acknowledges that neither Landlord nor any person acting on behalf of Landlord has made any representations of fact to induce this waiver of trial by jury or in any way to modify or nullify its effect. Tenant further acknowledges that it has been represented (or has had the opportunity to be represented) in the signing of this Lease and in the making of this waiver by independent legal counsel, selected of its own free will, and that it has had the opportunity to discuss this waiver with counsel. Tenant further acknowledges that it has read and understands the meaning and ramifications of this waiver provision.

 

27. Additional Provisions Pertaining to Leased Personal Property .

 

(a) Without limiting any other provision of this Lease, Tenant agrees that (i) title to the Leased Personal Property shall remain vested in Landlord; (ii) Tenant will not represent to any party that Tenant has title to the Leased Personal Property; (iii) the Leased Personal Property may not be used as collateral to secure any obligations of Tenant to any party; (iv) Tenant will not allow the Leased Personal Property to become encumbered in any way whatsoever; and (v) Tenant will not remove the Leased Personal Property from the Real Property without the written consent of Landlord. Tenant agrees that Landlord may file any financing statements or other documents Landlord deems reasonably necessary or desirable to protect or enforce its rights and interest in the Leased Personal Property and Tenant agrees to execute such documents as Landlord reasonably requests in connection therewith. In the event any of Leased Personal Property is lost, stolen, damaged, or destroyed, Tenant will be responsible for the full replacement of the same.

 

(b) THE LEASED PERSONAL PROPERTY IS BEING PROVIDED TO TENANT IN “AS IS, WHERE IS” CONDITION, WITH ALL FAULTS. LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF MERCHANTABILITY, WITH RESPECT TO THE LEASED PERSONAL PROPERTY, AND ALL SUCH WARRANTIES AND REPRESENTATIONS ARE EXPRESSLY DISCLAIMED BY LANDLORD.

 

28. Contingency for Acquisition of Leased Premises . The parties acknowledge that Landlord does not yet own the Premises and agree that this Lease is contingent upon Landlord acquiring fee title to the Real Property by no later than May 31, 2019. In the event that Landlord has not acquired fee title to the Real Property on or before May 31, 2019 (or such later date as the parties may agree upon in writing), this Lease shall automatically terminate. If Landlord does acquire fee title to the Real Property on or before May 31, 2019, then the date upon which Landlord acquires fee title to the Real Property is referred to herein as the “Acquisition Date.” Tenant shall not be entitled to possession of the Premises until the Acquisition Date (also referred to in this Lease as the Commencement Date).

 

[Signature Page(s) and Guaranty Follow]

21

 

 

IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed by their duly authorized undersigned representatives as an instrument under seal as of the day and year first written above.

 

WITNESS:   LANDLORD:
    56 Mechanic Falls Road, LLC
     
 
 
  By: /s/ David J. Noble
 
    Name: David J. Noble
 
    Title: President
 

 

 

22

 

    TENANT:
    KBS Builders, INC.
     
/s/
 
  By: /s/ Daniel M. Koch
 
    Printed Name: Daniel M. Koch
 
    Title: President
 

 

GUARANTY

 

For value received, and in consideration of and as an inducement to Landlord to enter into the foregoing Lease (the “Lease”) with Tenant, the undersigned, ATRM Holdings, Inc. (“Guarantor”), does hereby unconditionally guaranty to Landlord the complete and due performance and observation of each and every agreement, covenant, term, and condition of the Lease to be performed or observed by Tenant, including, without limitation, the payment of all Rent required under the Lease. The validity of this Guaranty and the obligations of the Guarantor hereunder shall not be terminated, affected, or impaired by reason of the granting by the Landlord of any indulgences to the Tenant. This Guaranty shall remain and continue in full force and effect with respect to any and all renewals, modifications, or extensions of the Lease, irrespective of whether Guarantor shall have received any notice of or consented to such renewal, modification, or extension. The liability of the Guarantor hereunder shall be primary, and in any right of action that shall accrue to the Landlord under the Lease or applicable law, the Landlord may proceed against Guarantor without having commenced any action against or having obtained any judgment against Tenant and/or may proceed against Guarantor and Tenant, jointly and severally. Guarantor hereby waives all guaranty and suretyship defenses. All of the terms and provisions of this Guaranty shall inure to the benefit of the successors and assigns of the Landlord and shall be binding upon the successors and assigns of Guarantor. Capitalized terms that are used, but not defined, in this Guaranty shall have the meaning ascribed thereto in the Lease.

 

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as an instrument under seal as of the date of the Lease.

 

    GUARANTOR:
    ATRM Holdings, INC.
     
/s/
 
  By:  /s/ Daniel M. Koch
 
    Printed Name:  Daniel M. Koch
 
    Title: President and CEO
 

 

 

24

 

List of Exhibits

 

Exhibit A – Description of the Leased Premises

 

Exhibit B – Base Rent if Tenant does not give a timely Rent Commencement Extension Notice

 

Exhibit C – Base Rent if Tenant does give a timely Rent Commencement Extension Notice

 

25

 

EXHIBIT A

(Description of Leased Premises)

*

 

 

 

EXHIBIT B

(Base Rent if Tenant does not give a timely Rent Commencement Extension Notice)

 

Months Annual Base Rent
( Real Property )
Annual Base Rent - ( Leased Personal Property )

Total

Monthly Installment of
Base Rent

Commencement Date

through

July 31, 2019

 

$0.00

 

$0.00

 

$0.00

August 1, 2019

through

March 31, 2020

 

$132,000.00

(Annual Rate)

 

$0.00

(Annual Rate)

 

$11,000.00

April 1, 2020

through

March 31, 2021

 

$134,640.00

 

$0.00

 

$11,220.00

April 1, 2021

through

March 31, 2022

 

$137,332.80

 

$0.00

 

$11,444.40

April 1, 2022

through

March 31, 2023

 

$140,079.46

 

$0.00

 

$11,673.29

April 1, 2023

through

March 31, 2024

 

$142,881.05

 

$0.00

 

$11,906.75

April 1, 2024

through

March 31, 2025

 

$145,738.67

 

$0.00

 

$12,144.89

April 1, 2025

through

March 31, 2026

 

$148,653.44

 

$0.00

 

$12,387.79

April 1, 2026

through

March 31, 2027

 

$151,626.51

 

$0.00

 

$12,635.54

April 1, 2027

through

March 31, 2028

 

$154,659.04

 

$0.00

 

$12,888.25

April 1, 2028

through

March 31, 2029

 

$157,752.22

 

$0.00

 

$13,146.02

 

 

 

EXHIBIT C

(Base Rent if Tenant does give a timely Rent Commencement Extension Notice)

 

Months Annual Base Rent
( Real Property )
Annual Base Rent - ( Leased Personal Property )

Total

Monthly Installment of
Base Rent

Commencement Date

through

October 31, 2019

 

$0.00

 

$0.00

 

$0.00

November 1, 2019

through

March 31, 2020

 

$144,000.00

(Annual Rate)

 

$0.00

(Annual Rate)

 

$12,000.00

April 1, 2020

through

March 31, 2021

 

$146,880.00

 

$0.00

 

$12,240.00

April 1, 2021

through

March 31, 2022

 

$149,817.60

 

$0.00

 

$12,484.80

April 1, 2022

through

March 31, 2023

 

$152,813.95

 

$0.00

 

$12,734.50

April 1, 2023

through

March 31, 2024

 

$155,870.23

 

$0.00

 

$12,989.19

April 1, 2024

through

March 31, 2025

 

$158,987.63

 

$0.00

 

$13,248.97

April 1, 2025

through

March 31, 2026

 

$162,167.38

 

$0.00

 

$13,513.95

April 1, 2026

through

March 31, 2027

 

$165,410.73

 

$0.00

 

$13,784.23

April 1, 2027

through

March 31, 2028

 

$168,718.94

 

$0.00

 

$14,059.91

April 1, 2028

through

March 31, 2029

 

$172,093.32

 

$0.00

 

$14,341.11

 

Exhibit 10.9

 

FIRST AMENDMENT TO LEASE

This First Amendment To Lease (this “Amendment”) is made as of this 18th day of April, 2019, by and between 56 Mechanic Falls Road , LLC , a Delaware limited liability company with a mailing address of 53 Forest Avenue, Old Greenwich, Connecticut 06870 (“Landlord”), and KBS Builders , INC., a Delaware corporation with a mailing address of 300 Park Street, Paris, Maine 04271 (“Tenant”).

WHEREAS, Landlord and Tenant are parties to a certain Lease Agreement dated April 3 2019 (the “Lease”), which Lease pertains to certain property located at or about 56 Mechanic Falls Road in the Town of Oxford, County of Oxford, and State of Maine, as more fully described in the Lease (referred to herein as the “Leased Premises”); and

WHEREAS, the Commencement Date (as defined in the Lease) under the Lease is scheduled to occur on the Acquisition Date (as defined in the Lease) and parties desire to amend the Commencement Date.

NOW THEREFORE in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the parties, intending to be 1egally bound, hereby agree as follows:

1.                   Amendment to Commencement Date . The term “Commencement Date,” as used in the Lease, is hereby amended to mean the later of (i) the Acquisition Date; or (ii) the date that Landlord is able to deliver possession of the Leased Premises to Tenant.

2.                   Capitalized Terms . Capitalized terms that are used but not defined in this Amendment but that are defined in the Lease have the meaning ascribed to such terms in the Lease.

3.                   Ratifications . The Lease, as amended by this Amendment, remains in full force and effect and is hereby ratified and confirmed.

4.                   Successors and Assigns . This Amendment is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns (but the foregoing is not to be construed as consent on the part of Landlord to any assignment by Tenant of the Lease, as amended by this Amendment).

5.                   Governing Law . This Amendment and all claims and/or causes of action (whether arising in contract, in tort, or by statute) that may be based upon, arise out of, or relate to this Amendment, shall be governed by, and enforced in accordance with, the laws of the State of Maine, without regard or reference to conflicts of law principles.

6.                   Multiple Counterparts . This Amendment may be executed in multiple counterparts, each of which will constitute an original, and all of which, taken together, will constitute a single instrument.

{Signature Page Follows}

 

 

IN WITNESS WHEREOF, Landlord and Tenant have caused this Amendment to be executed by their duly authorized undersigned representatives as of the day and year first written above.

 

 

WITNESS:   LANDLORD:
    56 Mechanic Falls Road, LLC
     
 
 
  By: /s/ David J. Noble
 
    Name:  David J. Noble
 
    Title: President
 

 

 

    TENANT:
    KBS Builders, INC.
     
/s/
 
  By:

/s/ Daniel M. Koch

    Printed Name:

Daniel M. Koch

    Title:

President

 

 

    SEEN AND AGREED TO :
    GUARANTOR:
    ATRM Holdings, INC.
     
/s/
 
  By:

/s/ Daniel M. Koch

    Printed Name:

Daniel M. Koch

    Title:

President & CEO

 

 

 

Exhibit 16.1

 

 

 

 

 

April 25, 2019

U.S. Securities and Exchange Commission
Office of the Chief Accountant
100 F Street, N.E.
Washington, DC 20549

Re: ATRM Holdings, Inc. (File No. 001-36318)

Commissioners:

We are currently principal accountants for ATRM Holdings, Inc. On April 10, 2019, we were notified that ATRM Holdings, Inc. engaged BDO USA, LLP as its principal accountant for the year ending December 31,2018 and that the auditor-client relationship with Boulay PLLP will cease upon completion of the audit of ATRM Holdings’ Inc’s consolidated financial statements as of and for the year ending December 31, 2017. Upon notification on the change in auditor on April 10, 2019, we issued our Exhibit 16 letter to ATRM Holdings, Inc. on that date. We have read ATRM Holdings Inc.’s statements included under Item 4.01 of its Form 8-K which we understand will be filed with the Securities and Exchange Commission, pursuant to Item 4.01 of Form 8-K. We agree with such statements included in item 4.01.

Very truly yours, 

 

Boulay PLLP

Minneapolis, Minnesota

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Boulay 7500 Flying Cloud Drive Suite 800 Minneapolis, MN 55344 (t) 952.893.9320 (f) 952.835.7296 BoulayGroup.com

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