EXHIBIT 10.24
FALCON SPACE LEASE
WITNESS THE FOLLOWING INDENTURE entered into the 14th day of January, 1994,
by and between XXXXXX X. XXX, doing business under the name and style of XXX
CONTINENTAL MILL, of Lewiston, County of Androscoggin, State of Maine
(hereinafter called "OWNER"), and FALCON SHOE MFG. CO., a Maine corporation
having a place of business in Lewiston, County of Androscoggin, State of Maine
(hereinafter called "TENANT").
ARTICLE I
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Premises
--------
OWNER does lease, demise and let unto TENANT and TENANT does lease and take
from OWNER, for the term and upon the terms and conditions set forth in this
Indenture, the following described premises:
The fourth and fifth floors of the Canal wing, each containing
approximately 19,110 square feet, and all of the fourth floor of the Oxford
Street wing, containing approximately 30,415 square feet, and the second
floor of the Canal wing and the back room on the second floor on the
riverside of the mill containing approximately 10,156 square feet, and the
fourth floor of the Picker wing, so called, containing approximately 13,912
square feet, or a total of 111,813 square feet; all being situated in the
Continental Mill building, so-called, near the intersection of Cedar and
Oxford Streets in Lewiston, Maine (the "demised premises").
Together with the non-exclusive use of the elevator situated at the
southeasterly corner of the North wing, the non-exclusive use of the
loading dock adjacent thereto and the non-exclusive use of the stairways
located near the north wall of said North wing, provided that no more than
four tenants, in addition to the TENANT and its affiliates shall be
authorized to use the aforesaid elevator during the term hereof, also non-
exclusive use of all elevators serving the premises as well as adjacent
shipping docks.
ARTICLE II
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Term
----
To have and to hold the same for a term of five (5) years, commencing on
the first day of April, 1994.
ARTICLE III
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Rent
----
The TENANT agrees to pay to the OWNER rental of One Million Eighty-four
Thousand Five Hundred Sixty-six Dollars and Forty Cents ($1,084,566.40) for said
term, payable in the manner following:
Twelve equal monthly payments of $16,585.60 each in advance for the period
April 1, 1994 through March 31, 1995; twelve equal monthly payments of
$17,331.02 each in advance for the period April 1, 1995 through March 31,
1996; twelve equal monthly payments of $18,076.44 each in advance for the
period April 1, 1996 through March 31, 1997; twelve equal monthly payments
of $18,821.86 each in advance for the period April 1, 1997 through March
31, 1998; twelve equal monthly payments of $19,567.28 each in advance for
the period April 1, 1998 and March 31, 1999.
Any increases in the price of heating oil chargeable to the OWNER during
the term hereof, over those prices in effect on December 1, 1980, shall be
chargeable by the OWNER to the TENANT in proportion to the square footage
leased by the TENANT as compared to the total square footage of the
building in which the demised premises are situated.
ARTICLE III-A
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In addition to the base rental provided in Article III, Tenant shall pay to
Owner twenty-four percent (24%) of the increase above the tax base year of 1980
in real estate taxes assessed by the City of Lewiston, Maine on the Continental
Mill real estate, including both land and buildings for its proportionate share
of said taxes. For the tax year 1993-1994, Tenant shall pay
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the sum of $4,560 in twelve monthly installments of $380. Thereafter, such
share of real estate taxes shall be adjusted annually as said taxes change.
ARTICLE IV
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Ownership
---------
OWNER covenants that it has good and marketable title to the premises and
full and complete right to lease and demise the same to the TENANT; excepting,
however, that this lease in all its particulars shall, without further consent
on the part of this TENANT, or any sublessees of this TENANT, be subordinated to
any mortgages which may, from time to time, during the term hereof or any
renewal hereof be given to any mortgages by the OWNER as security for monies or
funds lent to the OWNER by such mortgagees; provided, however, that such
mortgagees shall recognize this Lease and this TENANT for so long as this TENANT
shall not be in default under the terms hereof.
ARTICLE V
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Expiration and Condition
------------------------
TENANT agrees that it will, at the expiration of said term, or any
extension thereof, quit, surrender and deliver up the demised premises to the
OWNER, its successors and assigns, or the attorney for it or its successors and
assigns, peaceably and quietly, in good and reasonable repair, order and
condition in all respects, reasonable wear and use thereof and inevitable
accident thereto excepted, and will not make or suffer or permit others to
commit any strip or waste thereof.
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ARTICLE VI
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Alterations, Additions and Improvements
---------------------------------------
OWNER agrees that TENANT may, at its own expense, from time to time during
the term hereof or any renewal thereof, make such changes in the interior of the
demised premises as may be reasonably required for the full use and enjoyment
thereof, PROVIDE ALWAYS, that no such change shall be made without the TENANT
having first obtained the written approval of the OWNER, which approval shall
not be unreasonable withheld; and OWNER further agrees that TENANT may, at its
own expense, make structural alterations, additions, and changes in and to the
demised premises, PROVIDED ALWAYS, that all such structural alterations,
additions and changes shall preserve at least an equivalent intrinsic value and
all of the same shall have been approved in writing by OWNER before the work of
making any such structural alterations, additions, or changes is commenced,
which approval shall not be unreasonably withheld; PROVIDED FURTHER, that the
type, style and construction of any such alteration, addition, or change shall
be similar to that of the original building. Except as hereinafter provided, any
such alterations, additions, and changes which shall remain on the demised
premises, at the termination of the Lease in accordance with any of the
provisions hereof or at the end of the term of this Lease shall be considered as
improvements to and become a part of the real estate of the OWNER, and (unless
otherwise provided at the time written assent is given) TENANT shall have
neither the right nor the obligation to remove the same or restore the demised
premises to the condition in which they were originally.
TENANT agrees that any such alterations, additions and changes will be made
by TENANT, at its sole cost, risk, and expense in a first class, workmanlike
manner in substantial
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compliance with all ordinances, rules and regulations of all governmental
authorities having jurisdiction and in accordance with TENANT's plans and
specifications which shall be finally approved by such governmental authorities,
if plans and specifications for such work or any part thereof shall be required
by any such ordinances, rules or regulations to be filed with or approved by any
such governmental authorities. TENANT further agrees to indemnify and hold the
OWNER forever free and harmless from and against any and all mechanics' and
other liens arising from any such work and also from and against any and all
claims for damage or alleged damage to and destruction of property and injury to
and loss of life of persons which may result from any such work. The OWNER
shall have the right to require the TENANT to prove the acquisition of
reasonable types and amounts of liability insurance, performance bonds and
payment bonds under the terms of this provision.
ARTICLE VII
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Repairs and Maintenance, Arbitration
------------------------------------
Except as otherwise provided in this Indenture, TENANT agrees that it will,
at its own expense, provide all maintenance and make all interior repairs
necessary to maintain the interior of the demised premises in as good order and
repair at it is at the date of the commencement of this Lease, reasonable wear
and tear and damage by accidental fire or other casualty excepted, specifically
excepting exterior repairs, structural repairs, and repairs to the heating and
plumbing systems, which excepted exterior repairs, structural repairs, and
heating system repairs the OWNER agrees to make.
The TENANT shall not be obligated to make any repair which is occasioned by
defective materials or workmanship in the construction of the building or in the
OWNER's improvements
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which may be required of the OWNER, and such repairs shall be made by the OWNER
at its own expense. The OWNER shall during the term of this Lease and any
renewals or extension thereof, keep the structural supports, the roof and
exterior walls of the building including windows, doors and passageways from the
lobby, street and parking areas leading to the leased property, and the adjacent
sidewalks and entrance lobby, in good order and repair and free of snow, ice,
rubbish and other obstructions. The OWNER shall maintain in good working order
and repair all plumbing and toilet facilities below the floor level, the
sprinkler system, and other fixtures and equipment installed for the general
supply of hot and cold water, heat, and electricity. OWNER acknowledges his
responsibility to arrange connections to the building from the street for
electricity, water and sewer lines or pipes but not for the operational costs of
such services.
If OWNER, during the course of any examination of the condition of the
demised premises, observes any condition of, on, or to the demised premises
which reasonably should be repaired, maintained or corrected by the TENANT, in
accordance with the provisions of this Article, OWNER may notify TENANT of said
condition, in writing, requesting prompt remedying of said condition, and if
TENANT, after thirty (30) days from the mailing of such notice, shall not have
taken the necessary action to repair, maintain or correct the same, OWNER may
proceed to have such condition corrected and all costs incurred by OWNER for
such work, including reasonable charges by OWNER for time and expenses incurred
by it as a result of TENANT's negligence or failure to act, shall be deemed to
be in addition to rent due and payable by TENANT to OWNER and shall be paid by
TENANT to OWNER, and TENANT hereby so agrees to do, promptly upon demand.
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If TENANT, observes any condition of, on, or to the building in which the
demised premises is located or the demised premises which reasonably should be
repaired, maintained or corrected by the OWNER, in accordance with the
provisions of this Article, TENANT may notify OWNER of said condition, and if
OWNER, after thirty (30) days from the mailing of such notice, shall not have
taken the necessary action to repair, maintain, or correct the same, TENANT may
proceed to have such condition corrected and all costs incurred by TENANT for
such work, including reasonable charges by TENANT for time and expense incurred
by it as a result of OWNER's negligence or failure to act shall be deducted from
the rent due the OWNER from the TENANT and the OWNER hereby agrees to such
deduction.
Any dispute between the parties hereto involving repairs, rentals or any
other matter shall be determined by three arbitrators, one of whom shall be
designated by OWNER, one by TENANT, and a third by the two so designated, and
the determination of said arbitrators or a majority of them shall be conclusive.
ARTICLE VIII
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Fixtures and Equipment
----------------------
Any trade fixtures, equipment and other property installed in or attached
to the demised premises by and at the expense of TENANT shall remain the
property of TENANT and OWNER agrees that TENANT shall have the right at any time
and from time to time prior to the expiration of this Indenture or within a
reasonable time thereafter to remove any and all of its such trade fixtures,
equipment and other property which it may have stored or installed in the
demised premises. TENANT agrees to repair any damage to the demised premises
caused by the removal of any such property and to leave said premises in that
condition existing on April 1,
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1994, and/or as the same may have been put in since said date and/or as the same
may be put in during the term hereof.
ARTICLE IX
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Tenant as Owner's Attorney
--------------------------
OWNER hereby appoints and constitutes TENANT as OWNER's true and lawful
attorney-in-fact in the OWNER's name to apply for and secure from any
governmental authority having jurisdiction thereover any permits or licenses
which may be necessary in conjunction with the making of any alterations,
additions, changes and repairs, and OWNER agrees, upon the request by TENANT, to
execute or join in the execution of any application for such permits and
licenses, all at the expense, however, of the TENANT.
ARTICLE X
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Assignment and Subletting
-------------------------
The TENANT agrees not to assign this Indenture or underlet said premises or
any part thereof without first obtaining consent in writing of the OWNER which
covenants not unreasonably to withhold its consent.
ARTICLE XI
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Insurance
---------
TENANT agrees that during the term hereof it will maintain such insurance
against bodily injury and property damage, not less than $100,000 per person and
$300,000 per occurrence, as will protect itself and the OWNER against any
liability for injuries occurring upon or in connection with the demised
premises. OWNER will provide and maintain public liability insurance for common
areas of the building.
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ARTICLE XII
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Damage or Destruction
---------------------
In case the demised premises or any part thereof shall be taken by any
public authority or for any public use, or shall be destroyed or substantially
damaged by fire or other unavoidable casualty, or by the action of any public
authority, or if access to demised premises is substantially interfered with as
a result thereof, then this Indenture may be terminated at the election of
either the OWNER or the TENANT, or if neither shall so elect within a reasonable
time, then a just proportion of the rent, according to the nature and extent of
the damage sustained by the demised premises, shall be suspended or abated until
the demised premises, or what may remain thereof, shall be put by the OWNER in
proper condition for use, which the OWNER agrees to do with reasonable
promptness. It is further agreed that each party shall be entitled to receive
out of any award payment of the amount for damages sustained by it.
ARTICLE XIII
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Conduct of Business
-------------------
TENANT will at all times during the term hereof conform to all laws and
ordinances relative to its use of the demised premises and will obtain all
permits and licenses necessary in connection with such use.
ARTICLE XIV
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Access of Owner
---------------
OWNER shall have reasonable access to the demised premises during business
hours of the TENANT for the purposes of examining or exhibiting the same, or to
make any repairs which the TENANT has failed to make in accordance with the
terms hereof, but the making of any such
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repairs or the exhibiting or examination of the premises shall not unreasonably
interfere with the TENANT's use of the premises nor the conducting of the
TENANT's business thereon.
ARTICLE XV
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Default, Violation and Bankruptcy
---------------------------------
TENANT agrees that if it shall fail to pay the rent or any part thereof
within thirty (30) days after the same shall become due or shall violate or omit
(within thirty (30) days after notice of such default or breach shall have been
given, or , if a different notice period shall have been agreed upon in other
provisions hereof, then, as to such other provisions, the notice period therein
stated shall control) to perform any of the agreements or covenants hereof on
the part of TENANT to be performed, or if TENANT shall be adjudged bankrupt or
insolvent or shall make an assignment for the benefit of creditors or make a
compromise agreement with its creditors, or if a petition under the National
Bankruptcy Act as then in force shall be filed by or against TENANT and be
approved by the Court, or if a receiver or trustee of the TENANT's property
shall be appointed and such receiver or trustee of the TENANT's property shall
be appointed and such receiver or trustee shall not be discharged within forty-
five (45) days after such appointment, then and in any of such events, except as
hereinafter provided, OWNER may elect either (a) to re-enter the demised
premises by summary proceedings or otherwise and, thereupon, may expel all
persons and remove all property therefrom, either peaceably or by force without
becoming liable to prosecution therefore, and relet the premises as agent of the
TENANT, making reasonable efforts therefor, and receive the rent therefrom,
applying the same first to the payment of the reasonable expenses of such re-
entry and then to the payment of the rent accruing hereunder, the balance, if
any, to be paid by TENANT, but whether or not the demised premises
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be relet, TENANT shall remain liable for the equivalent of the amount of all
rent reserved herein, less avails or reletting, if any, and such amount shall be
due and payable to OWNER as damages or rent, as the case may be, on the
successive rent days hereinabove provided, and OWNER may recover such amount
periodically on said successive days, or (b) to declare this Indenture
terminated and to resume possession of the demised premises wholly discharged
from this Indenture. Such election shall be made, by written notice to the
TENANT, at any time on or before the doing of any act or the commencement of any
proceeding to recover possession of the demised premises by reason of the
default or breach then existing and shall be final as to that default or breach.
If OWNER shall elect to declare this Indenture terminated as aforesaid,
thereupon, all rights and obligations whatsoever of TENANT and of its successors
and sublessees under this Indenture, so far as the same may relate to the
unexpired portion of the term of this Indenture, shall cease and determine and,
within ten (10) days after receipt by TENANT of notice of election by OWNER to
terminate this Indenture as aforesaid, TENANT shall, by an instrument in writing
in form for record, cancel this Indenture and the unexpired portion of the term
hereof and surrender and deliver up to the OWNER the entire demised premises,
together with all improvements and additions (excepting the TENANT's own
fixtures, equipment and other property as hereinbefore provided), and, upon any
default by TENANT in so doing, OWNER shall have the right, forthwith, to re-
enter the demised premises, either by summary proceedings or otherwise and to
expel all persons and to remove all property therefrom, either peaceably or by
force without becoming liable to any prosecution therefore, and to repossess the
demised premises and to again have and enjoy the same, together with all
improvements and
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additions except that TENANT's fixtures, equipment and other property as
aforesaid, as fully and completely as if this Indenture had never been made.
It is agreed that, after default or breach as aforesaid, no demand for rent
and no re-entry for condition broken, as at common law, shall be necessary to
enable OWNER to recover possession pursuant to any statute relating to summary
proceedings, but all right to any such demand or any such re-entry is hereby
expressly waived by TENANT and that, except as hereinabove otherwise provided,
such re-entry of judgment shall not bar the recovery of future rent or of
damages for future breach of covenant nor shall the receipt of rent after
condition broken, except as aforesaid, be deemed a waiver of forfeiture or of
OWNER's right to terminate the term created by this Indenture. In the event of
the termination of this Indenture and re-entry by OWNER as aforesaid, TENANT
waives any and all right to redeem the premises whether given by any statute now
in effect or hereafter enacted or by any rule of common law; provided, however,
that this paragraph shall be applicable only to the defaults, violations and
breaches more or less specifically set forth in ARTICLE XV, but shall not be
applicable to the violations or defaults or breaches which are incorporated by
reference in this Article XV.
ARTICLE XVI
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Performance
-----------
The failure of either party to this Indenture to insist upon strict
performance of any of the covenants or conditions of this Indenture or to
exercise any option herein conferred in any one or more instances shall not be
construed as a waiver or relinquishment for the future of any such covenants,
conditions or options, but the same shall be and remain in full force and
effect.
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ARTICLE XVII
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Restrictive Covenants
---------------------
TENANT agrees that it will not conduct nor will it permit any sublessees to
conduct any business other than the manufacture of footwear or components
thereof and necessary storage and shipment relating thereto, except as
specifically authorized in writing by the OWNER. The OWNER agrees that it will
not unreasonably withhold such authorization. Without limiting the generality
of the foregoing, the selling of any foods or soft drinks in or about the
demised premises is specifically prohibited except to the extent which may from
time to time be authorized in writing; provided that the TENANT is hereby
authorized to maintain or provide for distribution of food and soft drinks
through the use of vending machines and/or food distribution arts if and for so
long as there shall be no other tenant of the OWNER authorized to make such
distribution and willing and able to provide services of the type and amount
required by TENANT and its employees. OWNER will not permit extra hazardous
operations to be conducted within said building.
ARTICLE XVIII
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Notices
-------
All notices required under this Indenture shall be deemed to be promptly
served if sent by certified or registered mail to the last address previously
furnished by the parties hereto. Until hereafter changed by the parties by
notice in writing, notices shall be sent to the OWNER at X.X. Xxx 000, Xxxxxxxx,
Xxxxx, and to the TENANT at X.X. Xxx 0000, Xxxxxxxx, Xxxxx 00000-0000. Date of
service of such notice shall be the date such notices are deposited in the post
offices of the United States Post Office Department.
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ARTICLE XIX
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Parking
-------
The OWNER will make available for the TENANT's use twenty (20) parking
spaces for cars of the TENANT's employees or visitors which shall be available
at no charge. In addition, the OWNER proposes to make available parking for
employees of this TENANT and other tenants of the OWNER at a weekly rental now
set at Three Dollars ($3.00) per space, but subject to change by the OWNER.
Such parking shall be available when practicable generally near the TENANT's
main entrance but only to the extent to which the OWNER develops the land
surrounding the buildings or adjacent thereto and the OWNER shall be under no
obligation to develop any particular amount or any specific area for such
parking. Such parking, when and as available, shall be rented on a "first
common, first served", basis, except that spaces vacated by employees of the
TENANT shall first be offered by the OWNER to the TENANT for the use of other
employees of the TENANT.
ARTICLE XX
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Miscellaneous
-------------
1) Heat. The OWNER agrees to provide heat during the necessary seasons of
----
the year to maintain the demised premises (except the landing dock and
storage area) at approximately 65 degrees Fahrenheit.
2) Water. The OWNER agrees to keep the sprinkler system in operating
-----
condition at its own expense. The TENANT is granted permission to connect
its own hot and cold water systems to the existing water mains.
3. Access. The OWNER agrees that it will not erect any properties or in
------
any way interfere with the TENANT's right of access to the demised
premises, and that it will maintain the outside of the building and keep
snow plowed from all parking spaces,
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hereby demised or leased at any time to TENANT's employees, as well as all
access driveways and approaches to the building.
4. Sign. The OWNER agrees to permit the TENANT to erect four (4) signs on
----
the outside walls of the demised portion of the building indicating the
TENANT's occupancy.
5. Installation of Equipment. The OWNER grants to the TENANT permission
-------------------------
to install equipment such as is usually used in shoe factories, including
but not limited to spray booths, wetting tanks, dust collectors, etc.,
including vents through walls and drains through floors. All work done
under the provisions of this paragraph shall be in compliance with the
applicable building codes, with notice to the OWNER, and so as to create no
injury to the OWNER or other persons using the building. Any opening
through floors or walls made subsequent to April 11, 1994, shall be
suitably repaired and closed at the termination of the term created by this
Indenture unless otherwise authorized.
6. All real and personal property insurance which is carried by either
party with respect to the demised premises shall include provisions which
either designate the other party as one of the insured to deny to the
insurer acquisition by subrogation of rights of recovery against the other
party to the extent such rights have been waived by the insured party prior
to occurrence of loss or injury, insofar as, and to the extent that such
provisions may be effective without making it impossible to obtain
insurance coverage from responsible companies qualified to do business in
Maine, even though extra premium may result therefrom. Each party hereby
waives all rights of recovery against the other for loss or injury against
which and to the extent that, the waiving party is protected by insurance
containing such provision.
ARTICLE XXI
-----------
Delivery of Premiums
--------------------
1. Water Metering and Sewerage. The OWNER may at any time or times
---------------------------
provide a separate meter for the water used in TENANT's manufacturing
process and charge the TENANT for water so used at the average rate
paid by the OWNER.
2. The OWNER hereby grants to the TENANT one option of extension of this
lease for a five year term on the same terms and conditions except as
to rental, which may be increased by mutual agreement, but in no event
shall such increase exceed ten cents (10c) per square foot per year.
3. The TENANT may at any time or from time to time introduce such
additional interior and/or exterior pipes, mains, wires, conduits,
ducts, compressed air lines, and other utilities, including
connections with adjacent premises, as may be
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necessary for the conduct of TENANT's business; provided that
permission of affected tenants must be obtained for any passage
through premises demised to others.
4. The TENANT shall reimburse the OWNER for its proportioned share of any
fees or charges payable by the OWNER for water and sewer charges.
5. Waste removal to be charged based on City of Lewiston dump charges and
trucking charges by OWNER.
ARTICLE XXII
------------
Construction of Lease
---------------------
The covenants and conditions herein contained shall apply to and bind the
successors and assigns of each of the parties hereto. No captions or titles on
this Indenture shall be considered in the interpretation of any of the
provisions hereof. This lease shall replace and supersede all prior leases and
amendments thereto between the parties hereto or their affiliates pertaining to
any or all of the premises hereby demised, said prior lease and amendments being
hereby terminated as of the commencement of the term created by this Indenture.
IN WITNESS WHEREOF, the OWNER and the TENANT have executed these presents,
in duplicate, the day and year first above written.
SIGNED, SEALED AND DELIVERED
IN PRESENCE OF XXX CONTINENTAL MILL
Owner
/s/ Xxxxxxx Xxx By: /s/ Xxxxxx X. Xxx
---------------------------- ---------------------------
Witness Xxxxxx X. Xxx
XXXXXX SHOE MFG., CO.
/s/ Xxxxxxx Xxx By: /s/ Xxxxxxxx X. Xxxxxxxx
---------------------------- --------------------------
Witness President
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