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Exhibit 10.17
LEASE AGREEMENT
AGREEMENT AND LEASE MADE THIS 6th day of March, 1992 by and between
Xxxxxxxxx Realty Venture, Xxxxxx Xxxxxxxxx, Trustee of Xxxxxxxxx Realty
Venture, Xxxxx Xxxxxxxxx, Trustee, Commonwealth of Massachusetts, hereinafter
called "Landlord", and VICTORY BUTTON, INC., a Massachusetts corporation with
principal offices in Leominster, Massachusetts, hereinafter called "Tenant",
which expression shall include its successors, executors, administrators and
assigns.
WHEREAS, the Landlord owns a parcel of land with a building thereon in
Fitchburg, Massachusetts, and
WHEREAS, the Tenant is desirous of leasing said land and building to be
used for a plastics manufacturing and warehouse facility, and the Landlord is
willing to lease said property to said Tenant,
NOW, THEREFORE, the parties agree as follows:
LEASED PREMISES
The Landlord hereby demises and leases unto the Tenant the following
described parcel of land and building located at Xxxxxxxx Street, Fitchburg,
Massachusetts, bounded and described as contained in Exhibit "A" attached
hereto and incorporated herein by reference.
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I
USE OF DEMISED PREMISES
The demised premises are to be used by the Tenant for a plastics
manufacturing facility and warehouse or any other use permissible under the
current zoning of said demised premises, any future amendments to the zoning
ordinance or any special permits, variances or licenses obtained by the Tenant
by petition to the proper granting authority.
II
TERM OF LEASE
The term of this lease shall be for thirty-six (36) months commencing
on April 1, 1992 and ending on March 31, 1995. The Tenant shall thereafter hold
said premises hereby leased during the full term of this lease and paying as
rent, except only in case of fire, the sum of Eight Hundred Seventy Five
Thousand Nine Hundred and Eighty Eight Dollars ($875,988.00) for said term,
payable in equal monthly installments of Twenty Four Thousand Three Hundred and
Thirty Three Dollars ($24,333.00).
III
REAL ESTATE TAXES
The Tenant shall pay the real estate taxes levied by the City of
Fitchburg on the demised premises.
IV
The Tenant shall pay for all water and sewer charges assessed by the
City of Fitchburg on said property for the
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term of this lease and shall pay for all electricity and heat used on said
premises.
V
TENANT'S OBLIGATION TO REPAIR
The Tenant shall have the express obligation to make repairs to the
interior of the demised premises, except repairs required because of reasonable
wear and tear and the Landlord's obligation with respect to damage by fire as
hereinafter exempted, and the Tenant shall hold the Landlord harmless from any
loss, cost or damage in connection therewith where said loss, cost or damage is
occasioned by the Tenant, its agents, servants or employees, or by persons
coming on the demised premises at the express or implied invitation of the
Tenant.
VI
LANDLORD'S OBLIGATION TO REPAIR
The Landlord shall have the express obligation to make, promptly after
the necessity therefore arises, such repairs to the roof and structure, and
plumbing and electrical systems and the exterior of the building of which the
demised premises are a part, as may be necessary to keep the building in good
repair and condition.
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VII
ASSIGNMENT
The Tenant shall not assign this lease, nor underlet the whole or any
part of the demised premises without first obtaining the written consent of the
Landlord. The Landlord covenants and agrees that he will not unreasonably
withhold such written consent for such assignment or underletting.
VIII
PAYMENT OF RENT
The Tenant agrees that it will during said term and for such further
time as the said Tenant or any person or persons claiming under it shall hold
said premises or any part thereof pay unto the Landlord and his assigns the
said yearly rent hereinbefore provided for upon the days hereinbefore appointed
for the payment of rent during said term.
IX
STOCK IN TRADE AND FIXTURES
The Tenant's stock in trade and fixtures in the demised premises shall
be at the sole risk of the Tenant, except if loss, cost of damage in connection
therewith is occasioned by the active negligence of the Landlord, its agents,
servants or employees.
X
DAMAGE BY FIRE
The Landlord agrees that no claim shall be made and that no suit or
action, either at law or in equity, shall be
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brought by the Landlord or by any person, firm or corporation claiming by,
through or under the Landlord, against the Tenant, its successors and assigns,
for any loss, cost or damage caused by or resulting from fire, of whatsoever
origin, to the building constituting the demised premises are a part, as the
case may be.
XI
DAMAGE TO PREMISES BY FIRE, CASUALTY OR BY
TAKING FOR PUBLIC USE
Provided always, that in case the said premises or any part thereof
shall be taken for any street or other public use or shall be destroyed or
damaged by fire or other casualty, or by the action of the City of Fitchburg or
other public authorities, after the execution hereof and before the expiration
of said term, then a just proportion of the rent hereinbefore reserved,
according to the nature and extent of the taking or injury sustained by the
demised premises, or in the case of such taking, what may remain thereof, shall
have been put in proper condition for use and occupation with due diligence by
Landlord at Landlord's sole cost and expense, and in case of taking there shall
be a permanent abatement according to the nature and extent of the portion of
the premises taken; PROVIDED, however, that in case the said premises or any
substantial part thereof, shall be taken for any street or other public use, or
shall
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be destroyed or substantially damaged by fire or casualty, or condemned by the
action of the City of Fitchburg or other public authorities after the execution
hereof and before the expiration of the said term, then this lease and the said
term shall terminate at the election of the Landlord or its representatives or
assigns or of the Tenant and such election may be made in case of any such
taking or destruction notwithstanding the entire interest of the Landlord or
its representatives or assigns may have been divested by such taking, and if
the lease shall not be terminated as aforesaid, the Landlord shall proceed with
all expedition to restore the premises to their condition before said fire or
casualty, or in case of a taking to put what may remain of said premises in
proper and fit condition for use of said purposes. Should any such taking
exceed five percent (5%) of the lot area, as described on Exhibit "A", then
this lease and the said term shall terminate at the election of the Tenant.
XII
INSURANCE
The Tenant shall insure, at its sole expense, the building on the
demised premises against the risk of fire. The Tenant shall provide, at its
sole expense, public liability insurance, including property damage with a One
Million Dollar ($1,000,000.00) limit and name Landlord as additional insured,
and including death and personal injury with One Million Dollar ($1,000,000.00)
limits.
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XIII
TENANT'S OBLIGATION AT THE END OF TERM
The Tenant shall at the expiration of said term peaceably yield up to
the said Landlord all and singular the premises in such repair as the same are
in at the commencement of said term or may be put in by the said Landlord or
its representatives during the continuance thereof, reasonable wear and use
thereof and such other damage, the obligation to repair which has hereinbefore
been specifically provided for in this lease, only excepted.
XIV
DEFAULT, INSOLVENCY ET CETERA OF TENANT
If the Tenant shall neglect or fail to perform and observe any of the
covenants in this instrument, which on its part are to be performed and such
default shall continue for a period of thirty (30) days after the mailing of a
written notice, postage prepaid from the Landlord to the Tenant specifying such
default, or if the Tenant shall be declared bankrupt or insolvent according to
law, or if any assignment shall be made of any of its property for the benefit
of creditors, then and in any of the said cases, the Landlord or those having
their estate in said premises, lawfully may immediately or at any time
thereafter and while such neglect or default continues and without further
notice of demand, enter into and upon the premises or any part thereof in the
name of the whole and repossess the same as of their former estate and expel
the said Tenant and those
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claiming under it, and remove their effects (forcibly if necessary) without
being taken or deemed guilty of any manner of trespass and without prejudice to
any remedies which might otherwise be used for arrears of rent, or preceding
breach of covenant and that upon entry as aforesaid the said term shall cease
and be ended.
XV
REMOVAL OF FIXTURES AND STOCK IN TRADE AT
END OF LEASE
So far as the same are not inconsistent with the term of the lease, as
hereinbefore provided, the Tenant at the expiration of this lease or within a
period of thirty (30) days thereafter shall have the right to remove all
fixtures, trade or otherwise, which it has installed upon the demised premises
during the term of this lease, or by its assignor, during prior leases.
XVI
OPTION FOR RENEWAL
The Tenant shall have the right to extend the term of this lease for a
period of thirty-six (36) months, beginning on April 1, 1995, and ending on
March 31, 1998, upon the same terms, covenants, conditions and rent. The Tenant
will be deemed to have elected such right to extend unless it has notified the
Landlord, in writing, to the contrary.
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XVII
COVENANTS AND AGREEMENTS
All of the covenants, agreements and conditions of this lease shall
accrue to the benefit of and be binding upon the respective parties hereto and
their successors and assigns as if they were in every case named and express.
This agreement and lease shall be deemed a Massachusetts contract and
governed by the laws of the Commonwealth of Massachusetts.
XVIII
QUIET ENJOYMENT
The Landlord agrees that if the Tenant shall pay the rent as aforesaid
and perform the covenants and agreements herein contained on its part to be
paid and performed, the Tenant shall peaceably hold and enjoy the said rented
premises without hindrance or interruption by the Landlord or by any other
person or persons.
XIX
NOTICES
All notices, demands and requests to be given hereunder by either party
shall be in writing and must be sent by first class mail to the persons and at
the addresses as contained in Exhibit "B" attached hereto.
XX
LANDLORD'S COOPERATION
If any provision of law, act, rule, code, regulation, ordinance or
other provision of any state, municipal or
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other governmental department, board, bureau or agency having jurisdiction over
the demised premises or any of the appurtenances thereunto belonging shall
require that the owner of the demised premises join in, consent to or institute
any action, proceeding or application with respect to the exercise by Tenant of
any right, not in violation of the terms of the lease, for the enjoyment and
use of the demised premises or of any buildings or improvements now or
hereafter thereon, or the appurtenances thereunto belonging, Landlord agrees,
to the extent that same is reasonable, free of expense to Tenant to give
Landlord's consent thereto and Tenant may, in its name, in Landlord's name or
in both names, institute such actions or proceedings and make such applications
as shall be requisite for Tenant's enjoyment and use of the premises, and the
appurtenances thereunto belonging. In the event the Landlord shall fail or
neglect to comply with any of its obligations as set forth in this numbered
article, Tenant may, in addition to any other remedies, as agent or attorney in
fact or Landlord do all such things a Landlord is obligated hereunder to do and
to execute, acknowledge and deliver all instruments required for Tenant to
exercise its rights pursuant to this lease for the lawful enjoyment and use of
the demised premises; and in any such case Landlord hereby irrevocably
nominates, constitutes and appoints Tenant Landlord's proper and legal
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attorney in fact for such action, proceeding or application; and Tenant will
indemnify and hold Landlord harmless from all such costs and expenses. All
actions and proceedings shall be conducted, all applications shall be made, and
all instructions and documents required shall be prepared by Tenant's attorney
at Tenant's expense.
XXI
CURING DEFAULTS
If either party is required to perform or comply with any agreement or
provision hereof and shall fail to do so within the time provided therefor (or
if not time is provided therefore then within thirty (30) days after written
demand for compliance shall have been received by any party hereto from the
other unless such default shall be of such nature that same cannot be
completely cured within such thirty (30) days period but the curing thereof has
commenced within the said thirty (30) day period and shall thereafter be
continued with reasonable diligence) then, in each such case, upon the
expiration of the time provided in this article for the performance or
compliance therewith or for the curing of same, the party demanding compliance
may perform and comply therewith for the account and at the expense of the
party failing to do so; and the party failing to do immediately upon receipt of
an itemized invoice of the cost and expense thereof, agrees to pay promptly the
reasonable cost and expense incurred by the other party
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hereto, with interest at the rate of ten percent (10%) per annum to the date
payment is received. Should the Tenant be the party failing to make such
payment, the cost and expense thereof shall be charged to Tenant as additional
rent, which shall be paid by the Tenant on the next rent payment date following
the date of receipt by Tenant of such invoice, and in the event such additional
rent shall not be paid when due, it may be collected in the same manner as is
herein provided for the collection of rent. Should the Landlord be the party
failing to make such payment to the Tenant, then the Tenant, without impairing
or affecting any other of its rights, shall have the right to withhold payment
of all rent, and additional rent if any, until Tenant has recouped all such
costs and expenses, with interest as aforesaid, to the date full payment is
received. In any such case, if Landlord is in default hereunder, tenant,
without impairing or affecting any other rights it may have for damages or
otherwise, shall have the right to cancel and terminate this lease by giving
written notice of Tenant's election to do so unless said default is cured
within thirty (30) days of said written notice; and upon giving such notice the
life of this lease shall cease and come to an end as of the date set forth in
said notice, with the same force and effect as if the date set forth were the
date originally fixed for the termination of the term and of any extended term
thereof. In computing the
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time within which either party is required to comply with any covenant,
agreement or provision of this lease, there shall be excluded therefrom periods
of reasonable delay on account of war, "labor troubles", "Acts of God" and
other unavoidable delays.
XXII
BROKER'S COMMISSION
The Landlord and Tenant covenant that this lease was directly
negotiated between them and that no broker was involved in bringing about this
agreement. No claim of a broker's fee shall be made against either party.
XXIII
OPTION TO PURCHASE
The Landlord and Tenant agree that the Tenant, their executors,
administrators or assigns shall have the right on or before March 31, 1998 to
give notice to the Landlord, their executors, administrators or assigns of
their desire to purchase title to said premises free and clear of all
encumbrances, hereby demised, and that the Landlord shall upon receipt of said
notice and upon payment by the Tenant of the sum of Three Million Two Hundred
Thousand Dollars ($3,200,000.00) and all rent accrued to that time, convey said
premises unto the Tenant, their executors, administrators or assigns.
The parties acknowledge and agree that the lack of a Chapter 21E Test
Report demonstrating compliance with all environmental laws, regulations and
standards in a form
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acceptable to the Tenant and any mortgage lender shall be deemed an encumbrance
on the property. The Landlord shall bear the sole and full expense of all
testing, reports, engineering and remedial work required to obtain full
compliance with all environmental laws, regulations, rules and standards. The
Landlord shall commence testing within thirty (30) days from a written notice
received by the Landlord from the Tenant indicating Tenant's desire to exercise
its option to purchase. The testing is to be completed within ninety (90) days
from the receipt of said notice. Should environmental testing result in
findings requiring remedial work to achieve compliance, then the Landlord shall
complete the action required within one hundred eighty (180) days from the
receipt of Tenant's notice exercising its option to purchase. Should the
Landlord fail to perform its obligations within the time limits heretofore
described, the Tenant will be entitled to the sole and exclusive option to
cancel its notice and obligation to purchase free from any and all expense or
to extend such time periods in each case for a period up to or equal to the
original time limit as provided above. The Landlord shall not be required by
this agreement to undertake remedial work exceeding Three Hundred Thousand
Dollars ($300,000.00) in value and should the Landlord not
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undertake such measures as a result the Tenant shall be discharged at no
expense from any obligation to purchase the realty of the Landlord.
SIGNED the date above first written.
LANDLORD:
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/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
BY:
TENANT:
VICTORY BUTTON, INC.
/s/ President, Xxxxxxx X. Xxxxx
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BY:
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XXXXXXXX XX.0
This Agreement shall comprise an Addendum to certain Lease Agreement
between the parties dated March 6, 1992 for the land and building of the
landlord located on Xxxxxxxx Street, Fitchburg, Massachusetts.
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. The Landlord agrees that the Tenant shall have the right to a second
extension of the lease term for the period beginning April 1, 1998 and
ending March 31, 2001, upon the same terms, covenants, conditions and
rent. The Tenant will be deemed to have elected such right to extend
unless it has notified the landlord in writing to the contrary.
Signed this 10th day of May, 1993.
The Landlord: The Tenant:
By: /s/ XXXXXX XXXXXXXXX By: /s/ XXXXXXX X. XXXXX
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Xxxxxx Xxxxxxxxx, Trustee Xxxxxxx X. Xxxxx, President
Xxxxxxxxx Realty Venture Victory Button Co., Inc.
