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Exhibit 10.9(k)
AGREEMENT OF LEASE
Between
MELVILLE CORPORATION
Landlord,
- and -
THE TIMBERLAND COMPANY
Tenant.
TABLE OF CONTENTS
Page
1. Demise 1
2. Term; Right to Terminate 1
3. Rent 2
4. Net Lease 2
5. Use of the Demised Premises 3
6. Condition of the Demised Premises 3
7. Taxes and Utility Expenses 3
8. Compliance with Laws 4
9. Repairs 4
10. Alterations and Improvements 4
11. Indemnification of Landlord 4
12. Insurance 5
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13. Assignment, Subletting and Mortgaging 6
14. Fixtures 6
15. Landlord's Access to the Demised Premises 6
16. Restoration Obligations 7
17. Eminent Domain 8
18. Quiet Enjoyment 9
19. Landlord's Representations and Warranties 9
20. Force Majeure 9
21. Landlord's Right to Cure 10
22. Tenant's Default 10
23. Holding Over 12
24. End of Term 12
25. Signs 12
26. No Broker 12
27. Notices 12
28. Certificates 13
29. Arbitration 14
30. Invalidity of Certain Provisions 14
31. Governing Law 14
32. No Waiver 14
33. Interpretation 15
34. Captions 15
35. Entire Agreement 15
36. Successors and Assigns 15
37. Right of First Refusal 15
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EXHIBITS
Exhibit A - The Land
Exhibit B - Equipment
Exhibit C - Permitted Encumbrances
AGREEMENT OF LEASE
AGREEMENT OF LEASE (this "Lease") made as of February 1, 1994, between
MELVILLE CORPORATION, a New York corporation, having an office at c/o Thom McAn
Shoe Company, 67 Millbrook Street, Worcester, MA 01606 ("Landlord"), and THE
TIMBERLAND COMPANY, a Delaware corporation having an office at 11 Merrill
Industrial Drive, P.O. Box 5050, Hampton, New Hampshire 03842-5050 ("Tenant").
1. Demise. Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, subject to all of the terms, covenants and conditions of this
Lease, all of that certain plot, piece or parcel of land located in Danville,
Kentucky, and more particularly described in Exhibit A attached hereto and made
a part hereof (the "Land"), together with (a) all of the buildings and
improvements now or hereafter erected on the Land (the "Improvements"), (b)
all fixtures and articles of personal property now or hereafter attached to or
used in connection with the Land or the Improvements, (c) all equipment in "as
is" condition, listed on Exhibit B attached hereto and made a part hereof (the
"Equipment"), (d) all appurtenances, rights, privileges and easements
benefiting, belonging or pertaining to the Land and (e) all of Landlord's
right, title and interest, if any, in and to any land lying in the bed of any
street, road or highway (open or proposed) in front of or adjoining the Land,
to the center line thereof, and any strips and/or gores relating to the Land
(all of the foregoing are hereinafter collectively called the "Demised
Premises").
2. Term; Right to Terminate.
(a) This Lease shall be for a term (the "Term") of five (5) years (or
until sooner terminated as hereinafter provided), to commence on February 1,
1994 (the "Commencement Date") and to end at midnight on January 31, 1999 (the
"Expiration Date").
(b) Provided Tenant shall not be in default of any of the
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terms or provisions of this Lease, Tenant shall have the right ("Tenant's
Termination Right") to terminate this Lease in accordance with the terms
hereof. If Tenant shall exercise Tenant's Termination Right during the first
year of the Term, then upon at least twelve (12) month's advance written notice
to Landlord, this Lease shall terminate on January 31, 1996, the last day of
the second year of the Term, and shall be null and void and of no further force
or effect. If Tenant shall elect to exercise Tenant's Termination Right at any
time after commencement of the third year of the Term, then upon twelve (12)
month's advance written notice to Landlord, this Lease shall terminate, and
shall be null and void and of no further force or effect.
(c) Provided Landlord shall not be in default of any terms and
provisions of this Lease, Landlord shall have the right ("Landlord's
Termination Right") to terminate this Lease at any time after commencement of
the third year of the Term, upon twelve (12) months advance written notice to
Tenant. If Landlord shall exercise Landlord's Termination Right, this Lease
shall terminate on a date which is twelve (12) months from the date Tenant
shall receive notice of Landlord's exercise of Landlord's Termination Right,
and shall be null and void and of no further force or effect.
3. Rent.
(a) Tenant shall pay rent ("Fixed Rent") to Landlord, at Landlord's
address set forth at the beginning of this Lease, or at such other address as
Landlord shall designate, at an annual rental rate of $1,021,608, payable in
equal monthly installments of $85,134 each, in advance on the first day of each
month during the Term. The first monthly installment of Fixed Rent due
hereunder shall be due and payable to Landlord upon execution of this Lease by
Tenant. Provided, however, in the event Tenant shall exercise Tenant's
Termination Right during the first year of the Term so that this Lease
terminates on January 31, 1996, the last day of the second year of the Term,
the Fixed Rent for the second year of Term shall be at an annual rental rate of
$1,115,916, payable in equal monthly installments of $92,993 each in advance on
the first day of each month during the second year of the Term commencing on
February 1, 1995.
(b) Tenant shall also pay as rent, all sums, costs, expenses and other
payments which Tenant assumes or agrees to pay under the terms of this Lease
(all of which are hereinafter collectively called "Additional Rent"), and, if
Tenant shall fail to pay any Additional Rent, Landlord shall have all of the
rights and remedies against Tenant provided for in this Lease, at law or in
equity, available to Landlord for Tenant's non-payment of
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Fixed Rent.
(c) No payment of less than the full amount of all Fixed Rent and
Additional Rent due under this Lease shall release Tenant from its obligation
to pay rent hereunder and the obligation of Tenant to pay the full amount of
all Fixed Rent and Additional Rent shall survive the expiration or earlier
termination of this Lease.
4. Net Lease. It is the intention of the parties that the rent payable
under this Lease shall be absolutely net to Landlord, so that this Lease shall,
under all circumstances, yield to Landlord the net annual Fixed Rent specified
in Article 3 of this Lease during the Term, and that all costs, expenses and
obligations of every kind and nature whatsoever relating to the Demised
Premises, including but not limited to, all taxes, utilities, maintenance and
any structural damage caused by any act or omission of Tenant, shall be paid by
Tenant.
5. Use of the Demised Premises. Tenant shall have the right to use the
Demised Premises for a distribution facility and for no other purpose.
6. Condition of the Demised Premises. Tenant shall accept possession
of the Demised Premises in its "AS IS" condition on the Commencement Date.
From and after the Commencement Date, Landlord shall have no obligation to
furnish, render or supply any work, labor, services, furniture, fixtures,
equipment, materials or other items to make the Demised Premises, or any
portion(s) thereof, ready or suitable for Tenant's occupancy.
7. Taxes and Utility Expenses.
(a) Tenant shall, during the Term, pay as Additional Rent all "Taxes"
and "Utility Expenses" (as such quoted terms are hereinafter defined) prior to
the imposition of any interest or penalty for late or non-payment. For the
purpose of this Article 7, "Taxes" shall mean all real property taxes,
installments of special and general assessments, water and sewer rents, rates
and charges and other governmental impositions and charges of every kind and
nature whatsoever, general and special, ordinary and extraordinary, foreseen
and unforeseen, which shall or may during the Term be levied, assessed or
imposed upon the Demised Premises, or any part thereof; and "Utility Expenses"
shall mean all water and sewer rents, rates and charges payable for the
furnishing of water to the Demised Premises based on actual usage, and all
amounts payable for the furnishing of steam, heat, gas, hot water, electricity,
light and power, and any other service or services to the Demised Premises, or
any part thereof.
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(b) If permitted by law, Tenant shall have the right to pay any
assessment for local improvements assessed during the Term in installments
and, in such event, Tenant's obligation to pay such assessment shall be
limited to the installments coming due during the Term. If the payment of
assessments in installments may be made only after application to an
appropriate authority, Tenant shall have the right to make such application,
in Landlord's name if legally required. Upon receipt of request therefor from
Tenant, Landlord shall execute any and all applications and/or other documents
necessary for such application.
(c) Taxes for the first year of the Term shall be prorated between
Landlord and Tenant.
8. Compliance with Laws.
(a) At all times during the Term, Tenant shall, at its own cost and
expense, promptly observe and comply with (i) all laws, orders and regulations
of any Federal, state, county and municipal authorities (including, but not
limited to, building codes and environmental laws, orders and regulations) (and
with any direction pursuant to law of any public officer thereof) having or
asserting jurisdiction over all or any part of the Demised Premises, or the use
and occupancy thereof, and of the National Board of Fire Underwriters, any
local board of fire underwriters or any other body or bodies exercising similar
functions (all of the foregoing are hereinafter collectively, called
"Governmental Regulations") and (ii) the provisions of all insurance policies
required to be maintained pursuant to Article 12 hereof and the requirements of
the issuers of all such policies.
9. Repairs. Tenant shall not do or suffer any waste or damage to the
Demised Premises or any part thereof and Tenant shall, at all times during the
Term, at its sole cost and expense, take good care of the Demised Premises and
make, or cause to be made, all maintenance and repairs, whether interior or
exterior, non-structural, or structural caused by any act or omission of
Tenant, ordinary or extraordinary, foreseen or unforeseen, necessary to keep
and maintain all of the Improvements in at least as good order and condition as
the same shall have been on the Commencement Date, reasonable wear and tear and
obsolescence excepted.
10. Alterations and Improvements. Tenant, with the prior written
consent of Landlord, which consent Landlord shall not withhold or delay
unreasonably, shall have the right, during the Term, at its own cost and
expense, to make any non-structural
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alterations, installations, improvements, additions, restorations, replacements
and other changes (collectively, "Alterations"), in, of or to the Improvements,
provided that the same shall not reduce the value of the Demised Premises.
Tenant, in making Alterations, shall comply with all applicable Governmental
Regulations and with all reasonable conditions imposed by Landlord in
connection with the making of any Alterations. Tenant shall obtain or cause to
be obtained all building permits, licenses, temporary and permanent
certificates of occupancy, and other governmental approvals which may be
required in connection with the making of any Alterations. Landlord shall
cooperate with Tenant in obtaining same and shall execute any documents
required therefor all at Tenant's sole cost and expense.
11. Indemnification of Landlord. Tenant shall indemnify, defend and hold
harmless Landlord against and from all liabilities, obligations, damages,
penalties, claims, costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and disbursements, which may be imposed on or
incurred by or asserted against Landlord by reason of any of the following
occurrences during the Term:
(a) any work or thing done in, on or about the Demised Premises, or any
part thereof, by any party other than Landlord;
(b) any use, non-use, possession, occupation, condition, operation,
maintenance or management of the Demised Premises;
(c) any negligence on the part of Tenant or any of its agents,
contractors, servants, employees, subtenants, licensees or invitees; or
(d) any accident, injury or damage to any person or property occurring
in the Demised Premises.
12. Insurance.
(a) Tenant shall provide, at its sole cost and expense, and shall keep
in force at all times during the Term, policies of insurance with an insurance
companies licensed to do business in the State of Kentucky, reasonably
satisfactory to Landlord, as follows:
(i) Comprehensive general public liability insurance in respect
of the Demised Premises and the conduct of Tenant's business, with a combined
single limit of not less than $10,000,000 for personal injury or death to any
number of persons in any one occurrence and for property damage. Each such
policy of liability insurance shall include Landlord and any other
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person(s) Landlord may designate as additional insureds;
(ii) casualty insurance for the benefit of Landlord covering all
of the Improvements for the full replacement value thereof and insuring against
loss or damage by fire or other casualty customarily included in extended
coverage endorsements. All proceeds payable under such casualty insurance
policies shall be adjusted with and payable to Tenant, to be held by Tenant in
trust for the benefit of Landlord and applied toward repair and restoration of
the Demised Premises in accordance with Article 16 of this Lease;
(iii) worker's compensation insurance covering all persons
employed by Tenant at the Demised Premises in such amounts and as required by
law, naming Landlord as an additional insured; and
(b) Tenant shall deliver policies of such insurance to Landlord on or
before the Commencement Date and thereafter not less than ten (10) days prior
to the expiration of any such policy. Such insurance shall provide, (i) that
it cannot be cancelled (including cancellation for failure to pay premiums) or
modified in any material respect without thirty (30) days' prior written notice
to Landlord and (ii) that no act or thing done by the Tenant shall invalidate
the policy as against the Landlord.
(c) Any insurance required to be provided by Tenant pursuant to this
Lease may, to the extent applicable, be provided by blanket insurance covering
the Demised Premises and other locations at which Tenant conducts business,
provided such blanket insurance complies with all applicable requirements of
this Lease and contains an endorsement specifically identifying the Demised
Premises as being covered thereunder.
(d) Tenant shall cause all policies of fire and casualty insurance
maintained by it in the respect of the Demised Premises to contain provisions
waiving any right of subrogation on the part of the insurer with respect to any
claims against Landlord.
13. Assignment, Subletting and Mortgaging. Tenant shall not, by
operation of law or otherwise, assign or otherwise transfer this Lease or the
term and estate hereby granted, sublet the Demised Premises or any part thereof
or allow the same to be used, occupied or utilized by anyone other than Tenant,
or mortgage, pledge, or encumber this Lease or the Demised Premises or any part
thereof in any manner by reason of any act or omission on the part of Tenant,
without in each instance obtaining the prior written consent of Landlord, which
consent Landlord shall not unreasonably withhold. Any transfer of the voting
stock of Tenant resulting in the "person(s)" who shall own a majority of such
stock immediately before such transfer ceasing
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to own a majority of such stock after such transfer or any transfer of all or
substantially all of the assets of Tenant shall be deemed to be an assignment
of this Lease as to which Landlord's consent shall have been required.
14. Fixtures. All trade fixtures, equipment and items of personal
property furnished or installed by Tenant at the Demised Premises, regardless
of the manner of attachment, shall be and remain the property of Tenant and may
be removed by Tenant at any time and from time to time during the Term or
within the period of ten (10) days after the expiration of the Term. Tenant
shall promptly repair all damage to the Demised Premises caused by the removal
of any such trade fixtures, equipment and personal property. Any property of
Tenant remaining in the Demised Premises after the expiration of such ten (10)
day period shall be deemed abandoned by Tenant and shall become the property of
Landlord without payment therefor.
15. Landlord's Access to the Demised Premises. Tenant shall permit
Landlord to enter upon the Demised Premises, at all reasonable times during
customary business hours of Tenant and upon reasonable notice, to inspect the
Demised Premises.
16. Restoration Obligations.
(a) In the event of damage to or destruction of the Demised Premises, or
any part thereof, Tenant shall give prompt written notice thereof to Landlord
and Tenant shall, at Tenant's sole cost and expense (whether or not any
"Proceeds" (as hereinafter defined) are sufficient therefor) (i) immediately
take all actions necessary to secure the Demised Premises from theft and
vandalism and to safeguard against the risk of collapse and falling debris and
(ii) promptly commence and diligently perform to completion the repair,
restoration and rebuilding of that portion or portions of the Demised Premises
so damaged or destroyed so as to restore the same to full compliance with all
Governmental Regulations and so that the Improvements shall be repaired and
restored, as nearly as possible, to the condition, value and general utility
that existed prior to the damage or destruction (such repair, restoration and
rebuilding being herein called "Restoration").
(b) All costs of Restoration, and all other work performed by or for
Tenant at the Demised Premises, shall be paid for promptly when due and all
Restoration and such other work shall be completed free and clear of claims of
mechanics, materialmen, contractors, subcontractors and other persons. If
required by Landlord, Tenant shall obtain waivers of liens, in form and
content satisfactory to Landlord, from all such mechanics, materialmen,
contractors, subcontractors and all other persons.
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(c) If any Restoration is structural, or if the cost of any Restoration,
as estimated by the Landlord, shall exceed $100,000 (in either case "Major
Restoration"), Tenant shall, prior to the commencement of the Major
Restoration, furnish to Landlord for its approval: (i) complete plans and
specifications for the Major Restoration prepared by an architect satisfactory
to the Landlord (the "Architect"), which shall be accompanied by (A) the
Architect's signed estimate, bearing the Architect's seal, of the entire cost
of completing the Major Restoration and (B) satisfactory evidence of the
approval thereof by all governmental authorities whose approval is required;
(ii) certified copies of all permits and approvals required in connection with
the commencement and conduct of the Major Restoration; and (iii) a surety bond
for, and/or guaranty of, the payment for the completion of the Major
Restoration, which bond and/or guaranty shall be in form and content, and from
a surety or guarantor, satisfactory to Landlord, and shall be in an amount not
less than the Architect's estimate of the entire cost of completing the Major
Restoration, less the net amount of insurance proceeds or (in the case of a
"Taking", as defined in Article 17), the net amount of the condemnation award
or compensation (in any such case "Proceeds"), if any, then held by Tenant for
application toward the cost of the Major Restoration. Tenant shall not
commence any Major Restoration until Tenant shall have complied with the
applicable requirements of this Article 16, and after commencing any Major
Restoration (and any other work undertaken at the Demised Premises) Tenant
shall proceed diligently and in good faith to perform the same to completion in
a good and workmanlike manner in accordance with (if required) the approved
plans and specifications therefor.
17. Eminent Domain.
(a) In the event of a taking for any public or quasi-public use by any
lawful power or authority by exercise of the right of condemnation or eminent
domain or by private purchase in lieu thereof (in any such event, a "Taking")
of the entire or a substantial portion of the Demised Premises which is
sufficient to render the remaining portion thereof unsuitable for restoration
for its continued use or occupancy by Tenant, either party to this Lease shall
have the right to cancel this Lease by a notice to the other given not later
than sixty (60) days following the Taking. Such notice shall specify a date
(the "Taking Cancellation Date") on which this Lease shall be cancelled, which
Taking Cancellation Date shall be the earlier to occur of the date of vesting
of title or the date of transfer of possession, as a result of the Taking. If
either party to this Lease shall exercise its right to cancel this Lease
pursuant to this Paragraph (a), this Lease and the term and estate granted
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by this Lease shall be wholly extinguished, and the Term shall expire on the
Taking Cancellation Date in the same manner and with the same effect as if the
Taking Cancellation Date were the Expiration Date, except that any Fixed Rent
paid for any period after the Taking Cancellation Date shall be refunded to
Tenant within fifteen (15) days after the Taking Cancellation Date.
(b) If this Lease shall not be cancelled pursuant to Paragraph (a) of
this Article 17, or in the event of a Taking of less than substantially all of
the Demised Premises, then (i) this Lease and the Term shall, upon the earlier
to occur of the date of vesting of title or transfer of possession as a result
of the Taking, cease and expire with respect to the portion of the Demised
Premises so Taken, (ii) Tenant shall promptly commence, and with reasonable
dispatch prosecute to completion, the restoration of the portion of the Demised
Premises remaining after the Taking to substantially the same condition and
tenantability as existed immediately preceding the Taking, any such restoration
to be performed in accordance with the provisions of Article 16 of this Lease,
and (iii) the Fixed Rent shall be equitably abated as of the date of vesting of
title or transfer of possession, whichever occurs earlier, as a result of the
Taking, to reflect the rental value of the portion of the Demised Premises lost
to Tenant by reason of the Taking. Any dispute as to the amount of such
equitable abatement in the Fixed Rent shall be submitted to arbitration
pursuant to Article 29 of this Lease. Until final resolution of the dispute,
Tenant shall pay the Fixed Rent at the rate determined by Landlord and, after
such determination, Landlord shall credit the amount of any overpayment toward
future payments of the Fixed Rent.
(c) In the event of a Taking, and whether or not this Lease is
terminated, Tenant shall have no claim in respect of the award or payment for
the value of the unexpired term of this Lease. Tenant may interpose and
prosecute in any proceeding in respect of a Taking, independent of any claim of
Landlord, claims for the reasonable value of Tenant's trade fixtures and
leasehold improvements, for damages for interruption or dislocation of business
in the Demised Premises and loss of good will, and for moving and remodeling
expenses. The Proceeds of any award or payment received by Landlord in
respect of any Taking shall be applied first toward payment of the cost of
restoring the Demised Premises or any portion thereof damaged as a result of
such Taking; the balance of such Proceeds, if any, shall be the sole property
of Landlord and Tenant shall have no claim thereto.
18. Quiet Enjoyment. Tenant, upon paying the Fixed Rent and any
Additional Rent due hereunder, and observing and keeping all covenants,
warranties, agreements and conditions of this Lease on its part to be kept,
shall quietly have and enjoy the
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Demised Premises during the term of this Lease, without hindrance or
molestation.
19. Landlord's Representations and Warranties.
(a) Landlord represents and warrants to Tenant that, as of the
Commencement Date:
(i) Landlord has full power and authority to execute and
deliver this Lease and to carry out and perform all covenants to be performed
by Landlord hereunder;
(ii) The Demised Premises are free from all encumbrances,
liens, defects in title, leases, tenancies, easements, restrictions and
agreements, except the Permitted Encumbrances;
(iii) The execution, delivery and performance of this Lease
by Landlord (A) does not violate any contract, agreement or commitment to
which Landlord is a party or by which Landlord is bound, and (B) have been duly
authorized by all necessary corporate action of Landlord.
20. Force Majeure. If either party shall be prevented or delayed from
punctually performing any obligation or satisfying any condition under this
Lease by any strike, lockout, labor dispute, inability to obtain labor or
materials, or reasonable substitutes therefor, Act of God, governmental
restriction, regulation or control, enemy or hostile government action, civil
commotion, insurrection, sabotage, fire or other casualty, or anyother
condition beyond the reasonable control of such party, then the time to perform
such obligation or satisfy such condition shall be extended by the delay caused
by such event. If either party shall, as a result of any such event, be unable
to exercise any right or option within any time limit provided therefor in this
Lease, such time shall be deemed extended for a period equal to the duration of
the delay caused by such event.
21. Landlord's Right to Cure. If Tenant shall be in default hereunder,
Landlord, after thirty (30) days' written notice that Landlord intends to cure
such default, or without notice if, in Landlord's reasonable judgment, an
emergency shall exist, shall have the right, but not the obligation, to cure
such default, and Tenant shall pay to Landlord upon demand the reasonable cost
thereof plus interest at the lesser of twelve percent (12%) per annum or the
maximum legal rate.
22. Tenant's Default.
(a) If Tenant defaults in the performance of any obligation
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under this Lease, Landlord may give notice to Tenant specifying the nature of
such default. If Tenant does not, within ten (10) days after receipt of such
notice, cure any default, other than a default in the payment of Fixed Rent or
Additional Rent, or, if the default is of such a nature that it cannot
reasonably be cured within such ten (10) day period and Tenant does not
commence and proceed with reasonable diligence and in good faith to cure such
default, or, if Tenant does not, within five (5) days after receipt of such
notice, cure a default in the payment of Fixed Rent or Additional Rent, then
after the expiration of such ten (10) or five (5) day period, as the case may
be, Landlord may give to Tenant a notice terminating this Lease, and thereupon,
this Lease and the term and estate hereby granted shall terminate with the same
effect as if the date of such notice of termination were the Expiration Date,
but Tenant shall remain liable for damages as provided in Paragraph (c) of this
Article 22. Upon such termination Landlord may reenter the Demised Premises
and dispossess Tenant and any other occupants thereof, remove their effects and
hold the Demised Premises as if this Lease had not been made; and Tenant waives
the service of any additional notice of intention to terminate this Lease,
reenter the Demised Premises or to institute legal proceedings to that end.
(b) If Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition under any bankruptcy or insolvency law, or any
involuntary petition alleging an act of bankruptcy or insolvency shall be
filed against Tenant under any bankruptcy or insolvency law, or if a petition
shall be filed by or against Tenant under the reorganization provisions of the
United States Bankruptcy Code or under the provisions of any law of like
import, or if a petition shall be filed by Tenant under the arrangement
provisions of the United States Bankruptcy Code or under the provisions of any
law of like import, or if a permanent receiver of Tenant or of or for all or
substantially all of the property of Tenant shall be appointed, then Landlord
shall, (i) at any time after Landlord becomes aware of any such event, if such
event occurs with the acquiescence of Tenant, or (ii) if such event occurs
without the acquiescence of Tenant, at any time after the event continues for
thirty (30) days, in either such case, give Tenant a notice specifying the same
and if the event giving rise to Landlord's notice shall continue for ten (10)
days after such notice is given; Landlord shall give Tenant a notice
terminating this Lease and, upon the giving of such notice of termination, this
Lease the term and estate hereby granted shall terminate with the same effect
as if the date of Landlord's termination notice were the Expiration Date, but
Tenant shall remain liable for damages as provided in Paragraph (c) of this
Article 22. If this Lease and the Term shall cease and expire in accordance
with this Paragraph (b), Landlord may
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dispossess or remove Tenant or any other occupant of the Demised Premises, by
summary proceedings or otherwise, and remove their effects and hold the Demised
Premises as if this Lease had not been made.
(c) After a dispossess or removal in accordance with Paragraph (a) or
Paragraph (b) of this Article 22, (i) the Fixed Rent shall be paid up to the
date of such dispossess or removal, (ii) Landlord may relet the Demised
Premises or any part or parts thereof, either in the name of Landlord or
otherwise for a term or terms which may, at the option of Landlord, be less
than or exceed the period which would otherwise have constituted the balance of
the Term and (iii) Tenant shall pay to Landlord, as liquidated damages, any
deficiency between the Fixed Rent due hereunder and the amount, if any, of the
rents collected on account of the new lease or leases of the Demised Premises
for each month of the period which would otherwise have constituted the balance
of the Term (not including any renewal period the commencement of which shall
not have occurred prior to such dispossess or removal). In computing such
liquidated damages there shall be added to said deficiency all expenses which
Landlord incurs in connection with reletting the Demised Premises, including,
without limitation, the cost of keeping the Demised Premised in good order and
the preparation of the same for such reletting, brokerage fees and attorneys'
fees and disbursements. Such liquidated damages shall be paid by Tenant in
monthly installments on the dates specified in this Lease for payment of Fixed
Rent and any suit brought to collect the amount of the deficiency for any month
shall not prejudice in any way the rights of Landlord to collect the deficiency
for any subsequent month by a similar proceeding. Landlord may make such
alterations, repairs, replacements, and decorations in and to the Demised
Premises as Landlord considers advisable and necessary for the purposes of
reletting the Demised Premises, and the making of such alterations and
decorations shall not operate or be construed to release Tenant from liability
for liquidated damages under this Lease. Landlord shall not be liable for
failure to relet the Demised Premises or, in the event that the Demised
Premises are relet, for failure to collect the rent under such reletting.
23. Holding Over. Should Tenant hold over in possession after the
expiration of the Term of this Lease, such holding over shall not be deemed to
extend the Term or renew this Lease, but the tenancy thereafter shall continue
as a tenancy from month to month at the sufferance of Landlord upon the terms
and conditions herein contained and at a rental equal to two (2) times the
Fixed Rent in effect immediately preceding the expiration of the Term.
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24. End of Term. Upon the expiration or other termination of the Term,
Tenant shall peaceably and quietly quit and surrender the Demised Premises.
25. Signs. Tenant shall have the right to install, maintain and replace
in, on, over or in front of the Demised Premises or in any part thereof, or on
the roof or exterior walls of any building(s) at the Demised Premises, such
signs, placards and lights as Tenant may desire, provided Tenant shall comply
with any applicable Governmental Regulations and shall obtain any necessary
permits for such purposes. Any installations made by Tenant under this Article
25 shall be promptly removed at Tenant's expense upon the expiration or other
termination of this Lease and any damage to the Improvements caused by such
installation of removal shall be promptly repaired by Tenant at its expense.
26. No Broker. Landlord and Tenant each represent and warrant to the
other that no broker was instrumental in consum-mating this Lease and neither
had any conversations or negotiations with any broker concerning the leasing
of the Demised Premises. Landlord and Tenant each agree to indemnify, defend
and hold harmless the other from and against any claims for brokerage
commissions or other compensation, and all claims, losses, damages,
liabilities, costs and expenses in connection therewith, including, without
limitation, reasonable attorneys' fees and disbursements, which may arise by
through or on account of any act of the indemnifying party.
27. Notices. All notices and other communications which either party is
required or desires to send to the other party hereunder shall be in writing,
mailed (registered or certified mail, return receipt requested, postage
prepaid), be hand delivered or sent by nationally recognized overnight courier,
prepaid. Notices and other communications shall be deemed to have been
received on the earlier of the date of actual receipt or the third (3rd)
regular business day after the day so mailed. Notices shall be addressed as
follows:
If to Landlord, to it at:
Melville Corporation
c/o Thom McAn Shoe Company
67 Millbrook Street
Worcester, MA 01606
Attention: Mr. Ashvin Mehta
with a copy to:
Melville Corporation
16
One Theall Road
Rye, NY 10580
Attention: Legal Department
If to Tenant, to it at:
The Timberland Company
11 Merrill Industrial Drive
P.O. Box 5050
Hampton, NH 03842-5050
with a copy to:
Any party may, by a notice given in accordance with this Article 27, designate
a different address for notices and other communications.
28. Certificates. Either party shall, without charge, at any time and
from time to time, within ten (10) days after written request therefor, certify
by written instrument duly executed and acknowledged, to the other party and to
any purchaser, or proposed purchaser, or any other person, firm or corporation
specified in such request: (a) That this Lease has not been amended, modified
or supplemented, or if this Lease has been amended, modified or supplemented,
the substance and manner of such amendment, modification or supplement; (b)
that this Lease is the valid and binding obligation of said party and is in
full force and effect in accordance with its terms as then constituted; (c)
whether, to the knowledge of said party, there exists any event that, with the
passage of time or the giving of notice, or both, would constitute a default
under this Lease, and if said party shall have knowledge of such an event,
specifying the nature of same; (d) whether, to the knowledge of said party,
there exists any offsets, counterclaims, or defenses against the enforcement of
any of the terms, covenants and conditions of this Lease as then constituted by
the party requesting the certificate, and if so, specifying same; (e) the
Commencement Date and Expiration Date of this Lease; and (f) any other matters
as may reasonably be requested. Any such certificate may be relied upon by the
party requesting it and any other person, firm or corporation to whom the same
may be delivered, and the contents of such certificate shall be binding on the
party executing same.
29. Arbitration. In any case where this Lease provides for submission
of a dispute or matter to arbitration, the same shall be settled by arbitration
in the State of Kentucky, in accordance
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with the rules then obtaining of the American Arbitration Association or any
successor thereto. The arbitrator or arbitrators may grant injunctions or
other relief in such disputes or matters. The decision of the arbitrator or
arbitrators shall be final, conclusive, and binding upon the parties, and a
judgment may be entered thereon in any court having jurisdiction. Landlord and
Tenant each shall pay one-half of the cost and expense of such arbitration, and
each shall separately pay for its own attorneys' fees and expenses.
30. Invalidity of Certain Provisions. If any term, covenant, condition
or provision of this Lease or the application thereof to any person or
circumstance shall, at any time, for any reason or to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that term or
pro-vision to other persons or circumstances, shall not be affected thereby,
but shall be enforced to the extent permitted by law.
31. Governing Law. Irrespective of the place of execution or
performance, this Lease, the rights and obligations of the parties hereto and
the performance hereof shall be governed by and construed in accordance with
the laws of the State of Kentucky as applied to contracts executed and to be
performed wholly within that State.
32. No Waiver. The failure of Landlord or Tenant to complain of any act
or omission on the part of the other party or to seek redress for the violation
of, or insist on the strict performance of, any term, covenant or condition in
this Lease no matter how long the same may continue, shall not be deemed to be
a waiver by said party of any of its rights hereunder. No waiver by Landlord
or Tenant at any time, express or implied, of any breach of any provision of
this Lease shall be deemed a waiver of a breach of any other provision of this
Lease or a consent to any subsequent breach of the same or any other provision.
No accept-ance by Landlord of any partial payment shall constitute an accord or
satisfaction but shall only be deemed a part payment on account.
33. Interpretation. This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted. All terms and words used in this Lease, regardless of the
number or gender shall be deemed to include any other number and any other
genders, as the context may require. The term "Landlord" as used in this Lease
shall mean only the owner for the time being of Landlord's interest in this
Lease, so that upon any sale of the interest of Landlord in this Lease,
Landlord's successor in interest shall, during the term of its ownership, be
deemed to be the "Landlord" hereunder.
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34. Captions. The article headings used in this Lease are for reference
and convenience only, and shall not enter into the construction or
interpretation of this Lease.
35. Entire Agreement. All prior understandings and agreements between
Landlord and Tenant relating to the subject matter of this Lease are merged
into this Lease, which alone contains the entire agreement between the parties.
This Lease may not be modified or cancelled except by a writing executed by
both Landlord and Tenant.
36. Successors and Assigns. Except as provided herein to the contrary,
the covenants and agreements contained in this Lease shall bind and inure to
the benefit of Landlord and Tenant, and their respective successors and
assigns.
37. Right of First Refusal. Provided Tenant shall not be in default of
any of the terms and provisions of this Lease, at any time during the Term, if
Landlord shall receive an offer to purchase the Demised Premises which Landlord
is willing to accept, Tenant shall have the right to purchase the Demised
Premises upon the same terms and conditions as such offer. Tenant shall have a
period of forty-five (45) days from the date of receipt of notice from Landlord
of such offer within which to enter into a purchase and sale agreement with
Landlord for the purchase of the Demised Premises on the same terms and
conditions as such offer.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed as of the day and year first above written.
LANDLORD: Melville Corporation
By: /s/ Arthur V. Richards
--------------------------
Name: Arthur V. Richards
TITLE: Vice President and Secretary
ATTEST:
/s/ Maureen Richards
- --------------------------
Assistant Secretary
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TENANT:
THE TIMBERLAND COMPANY
By: /s/ KEITH D. MONDA
-------------------------
Name: Keith D. Monda
Title: SR. VP/CFO
ATTEST
/s/ JANE E. OWENS
- ----------------------------
Jane E. Owens
Assistant Secretary
EXHIBIT A
The Land
All that certain plot, piece or parcel of land, together with the
buildings and improvements thereon erected and all appurtenances, rights,
privileges and easements pertaining thereto, situate, lying and being in
Danville, Kentucky, more particularly bounded and described as follows:
Beginning at an iron pin located at the northwest corner of the Jackson
Chair Company tract and in the south line of American Greetings tract; thence
with American Greetings' South line S. 73 deg. 27 min. W. 1025.7 feet along the
center line of a High Pressure Gas Line easement to a post corner to Boyle
County Industrial Foundation; thence continuing with Boyle County Industrial
Foundation and center line of High Pressure Gas Line S. 53 deg. 02 min. W. 25.0
feet to an iron pin corner to Boyle County Industrial Foundation and Danville
Development Corp; thence with Danville Development Corporation S. 16 deg. 33
min. E 1001.8 feet to an iron pin in the center line of a High Pressure Gas
Line easement and corner to William Stone Dale; thence with William Stone Dale
S. 89 deg. 56 min. E 819.3 feet to an iron pin; thence with Danville
Development Corporation N. 54 Deg. 00 min. E. 125.6 feet to an iron pin; N 39
deg. 00 min. E 180.0 feet to an iron pin; thence with Danville Development
Corporation and Jackson Chair Company N. 16 deg. 33 min W 1100.0 feet to the
point of beginning and containing 27.41 acres, more or less, according to
survey of Charles Thomas, R.L.S. 1918.
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EXHIBIT B
EQUIPMENT
All equipment affixed or anchored to the ground or ceiling,
including:
- power conveyors
- high bay racking
- mezzanines
- flow racks.
Office and cafeteria furniture.
Two (2) Toyota trucks.
Two (2) Clark trucks.
Six (6) Lift trucks for high bay storage area.
Batteries and chargers.
Picking carts.
One hundred fifty (150) wooden pallets.
Phone System.
Certain miscellaneous shop tools.
EXHIBIT C
Permitted Encumbrances
1. The terms, covenants and conditions of this lease.
2. Zoning or other laws, ordinances, resolutions, rules regulations and
orders of all boards, bureaus, commissions and bodies, whether Municipal,
County, State or Federal, now or hereafter having, acquiring or asserting
jurisdiction over the Demised Premises or the use and occupancy thereof,
provided the same do not prevent or interfere with the use and occupancy of the
Demised Premises for the purposes the same is being used and occupied on the
Commencement Date.
3. Any state of facts (including, without limitation, any party walls
not the subject of a written agreement) which any accurate survey may show,
provided the same do not prevent or interfere with the use and occupancy of the
Demised Premises for
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the purposes the same is being used and occupied on the Commencement Date.
4. All Agreements, easement, covenants and restrictions of record, to
the extent the same are in force on the Commencement Date.
5. Revocable nature of any right to maintain vaults or vault spaces,
basement and subbasement spaces, areas, pipes, water lines, conduits, sidewalk
elevators, marquees or signs, beyond the building lines.