Exhibit 10.15
LEASE AGREEMENT
THIS LEASE AGREEMENT made as of the 30th day of August 2005 ("Lease") between CK
HOLDINGS, LLC with its principal office at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxx
Xxxxxxxx 00000 ("Landlord") and HAMPSHIRE DESIGNERS, INC. whose present address
is 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Tenant").
WITNESSETH:
Landlord hereby agrees to lease to Tenant and Tenant hereby agrees to lease from
Landlord the building ("Building") located at 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxx Xxxxxxxx 00000, and the premises including the appurtenant parking areas
(the "Premises") designated on the plan attached hereto as Exhibit A and made a
part hereof and described on Schedule I attached hereto and made a part hereof,
legally described on the City of Xxxxxxxx Tax Map Xx. 000-00-00-000, Xxxxx Xx.
XXX-X on plat prepared by Xxxxxx & Xxxxxxx Engineers, Inc., subject to the
covenants, terms, provisions and conditions of this Lease.
In consideration thereof, Landlord and Tenant covenant and agree as follows:
1. TERM.
A. The term of this Lease shall be for the period of twelve (12) years
commencing on January 1, 2006 (the "Commencement Date") and ending on
December 31, 2017 (the "Termination Date"), plus the options to renew
set forth in Paragraph B below (the "Term"), unless sooner terminated
or extended as provided herein, under the terms stated in Schedule I
attached hereto.
B. Providing Tenant gives written notification to the Landlord on or
before December 31, 2016, (one year prior to the expiration of the
current Term), the Tenant, at its option, may extend this Lease under
the same terms hereof for a four year period commencing January 1,
2018 and ending December 31, 2021. Further, providing the Tenant gives
written notification to the Landlord on or before December 31, 2020,
the Tenant, at its option, may extend this Lease for an additional
four year period commencing January 1, 2022 and ending December 31,
2025.
2. RENT.
A. On or before the first day of each and every month during the Term,
Tenant shall pay the annual sum stated in Schedule I attached hereto
("Rent") in equal monthly installments as stated in Schedule I
attached hereto to Landlord. If the Rent is not received within ten
(10) days after the due date, Tenant shall pay a penalty of five
percent (5%) of the amount due, and after thirty days, plus interest
at Branch Bank & Trust prime rate plus two percent (2%) per annum,
until paid in full. Tenant agrees to electronically transfer to the
designated bank account of the Landlord the monthly rent payment
without charge to the Landlord.
B. Notwithstanding the foregoing, the Rent shall be increased in the
amounts and at the times set forth on Schedule I, and the monthly
installments of Rent shall be increased accordingly. If the Term
commences other than on the first day of a month or ends other than on
the last day of the month, the Rent for such month shall be prorated.
C. Tenant hereby agrees to make a make a deposit of Twenty Three Thousand
Dollars with Landlord. Such deposit shall serve as security of
Tenant's performance hereunder and shall not accrue interest during
the Term hereof. In the event that Tenant shall comply with all of the
terms, provisions and covenants of this Lease, the security shall be
returned to Tenant within thirty (30) days after the date fixed as the
end of the Lease and after delivery of possession of the Premises to
Landlord.
3. POSSESSION. In the event the Premises shall not be completed and ready for
occupancy on the Commencement Date, this Lease shall nevertheless continue
in force and effect but rent shall xxxxx until Landlord has completed its
obligations to prepare the Premises for occupancy.
4. USE OF PREMISES.
A. Tenant, its successors and permitted assigns shall use and occupy the
Premises for the sole purpose described in Schedule I, and for no
other purposes.
B. Tenant shall not use or permit the use of the Premises or any part
thereof for any purpose prohibited by law, and Tenant shall, at its
sole expense, comply with and conform to all of the requirements of
all governmental authorities having jurisdiction thereof, present or
future, relating in any way to the conditions, use and occupancy of
the Premises throughout the entire Term of this Lease.
5. CONDITION OF PREMISES. Landlord shall deliver the Premises broom clean with
no defects and all structural components and utilities, including heat
pumps for heating and cooling, shall be in good working order. Tenant
acknowledges that Tenant's taking possession of any portion of the Premises
shall be conclusive evidence that the Premises were in good order and
satisfactory condition when Tenant took possession except as to latent
defects and to any items as to which Tenant notifies Landlord in writing
within thirty days after initially taking possession except for the A/C
which shall be thirty days after the commencement of the A/C season.
6. SERVICES, UTILITIES.
A. Services. Landlord shall provide the following services during the
Term, unless otherwise stated:
(1) Electrical meters for the Premises and adequate electrical wiring
transmission lines and facilities for standard building lighting
fixtures and appliances provided by Landlord. Tenant is
responsible for arranging for the supply of electricity to the
Premises and shall bear the cost of replacement of ballasts and
fluorescent tubes, bulbs or lamps.
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(2) City water from the regular Building outlets for drinking,
lavatory and toilet purposes. Tenant shall immediately repair
malfunctioning systems, such as dripping faucets or running
toilets.
B. Communication. Tenant shall provide, at its own expense, wiring,
junction boxes, terminals and such other equipment necessary for data
processing and communication.
C. Utilities. Tenant agrees to pay promptly, as and when the same become
due and payable, effective with the date of delivery of possession,
all charges for electricity, heat, water, sewer, telephone and other
utilities supplied to the Premises during the Lease Term.
7. REAL ESTATE TAXES. Tenant shall pay to Landlord, as additional rent, the
real estate taxes for the term as and when due. The term "Real Estate
Taxes" shall mean the total of all taxes and special or other assessments
levied, assessed or imposed at any time by any governmental authority upon
or against the Building. As to special assessments which are payable over a
period of time extending beyond the term of this Lease, only a pro rata
portion thereof, covering the portion of the term of this Lease unexpired
at the time of the imposition of such assessment, shall be included in
"Real Estate Taxes".
8. REPAIRS & CLEANING. Subject to the terms of Paragraph 9 hereof, Tenant, at
Tenant's own expense, shall (a) keep the Premises, including the elevator,
in good order, repair and condition at all times during the Term and (b)
keep the outside areas adjoining the Premises, including the parking areas,
clean and free from dirt, rubbish, ice and snow. Tenant shall promptly and
adequately repair all damage to the Premises and replace or repair all
damaged or broken fixtures and appurtenances, under the supervision and
subject to the approval of Landlord, and within any reasonable period of
time specified by Landlord. Tenant will keep the Premises reasonably clean
and shall remove all trash and dispose of same as directed by the local
government authority. If Tenant does not do so, Landlord may, but need not,
make such repairs and replacements, and Tenant shall pay Landlord the cost
thereof, including an amount sufficient to reimburse Landlord for overhead
and related expenses, forthwith upon being billed for same and such amounts
shall be deemed to be Additional Rent due hereunder. Landlord may, but
shall not be required to, enter the Premises at all reasonable times to
make such repairs, alterations, improvements and additions as Landlord
shall desire or deem necessary to the Premises or to the Building or to any
equipment located in the Building or as Landlord may be required to do by
governmental authority or court order or decree. Further, Tenant, at
Tenant's own expense, shall maintain the grass, plants, landscaping and
sprinkler system at the Premises.
Landlord, at its own expense, shall maintain and repair the structure and the
roof of the Building. If Landlord does not do so, Tenant may, but need not, make
such repairs, and Landlord shall pay Tenant the cost thereof, including an
amount sufficient to reimburse Tenant for overhead and related expenses,
forthwith upon being billed for same and such amounts shall be deemed to be a
deduction from Rent due hereunder.
9. ADDITIONS AND ALTERATIONS. Tenant shall not, without the prior written
consent of Landlord, make any material alterations, improvements or
additions to the Premises. Said consent shall not be unreasonably withheld
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if such alterations, improvements or additions do not adversely affect the
Building's structure or detract from the Building's appearance from outside
of the Premises. If Landlord consents to said alterations, improvements or
additions, it may impose such conditions with respect thereto as Landlord
deems appropriate, including, without limitation, requiring Tenant to
furnish Landlord with security for the payment of all costs to be incurred
in connection with such work, insurance against liabilities which may arise
out of such work, and plans and specifications plus permits necessary for
such work. The work necessary to make any alterations, improvements or
additions to the Premises shall be done at Tenant's expense by employees of
or contractors hired by Landlord, at competitive prices, except to the
extent Landlord gives its prior written consent to Tenant's hiring
contractors. Tenant shall promptly pay to Landlord or to Tenant's
contractors, as the case may be, when due, the cost of all such work and of
all decorating required by reason thereof. Upon completion, Tenant shall
deliver to Landlord, if payment is made directly to contractors, evidence
of payment, contractors' affidavits and full and final waivers of all liens
for labor, services or materials. Tenant shall defend and hold Landlord and
the Premises and Building harmless from all costs, damages, Liens and
expenses related to such work. All work done by Tenant or its contractors
pursuant to Paragraphs 8 or 9 shall be done in a first-class workmanlike
manner using only good grades of materials and shall comply with all
insurance requirements and all applicable laws and ordinances and rules and
regulations of governmental departments or agencies.
All alterations, improvements and additions to the Premises, whether temporary
or permanent in character, made or paid for by Landlord or Tenant, shall without
compensation to Tenant become Landlord's property at the termination of this
Lease by lapse of time or otherwise and shall, unless Landlord had requested
their removal when Landlord consented to their installation (in which case
Tenant shall remove the same as provided in Paragraph 19) be relinquished to
Landlord in good condition, ordinary wear and tear excepted.
10. GLASS. Tenant agrees to replace at its expense any and all glass, which may
become broken in and on the Premises. Plate glass and mirrors, if any,
shall be insured by Tenant at its full insurable value by a company
satisfactory to Landlord.
11. SIGNAGE. Tenant shall have the right to install, at its own expense, all
exterior and interior signage necessary of desired in connection with its
business, provided such signage is in compliance with governmental laws,
orders, rules and regulations and that such signage shall be removed by
Tenant, at its own expense, prior to the termination of this Lease and
Tenant agrees to reimburse Landlord for expenses of repair of any damages
residual from the signage.
12. COVENANT AGAINST LIENS. Tenant has no authority or power to cause or permit
any lien or encumbrance of any kind whatsoever, whether created by act of
Tenant, operation of law or otherwise to attach to or be placed upon
Landlord's title or interest in the Building or Premises, and any and all
liens and encumbrances created by Tenant shall attach to Tenant's interest
only. Tenant covenants and agrees not to suffer or permit any lien of
mechanics or materialmen or others to be placed against the Building or the
Premises with respect to work or services claimed to have been performed
for or materials claimed to have been furnished to Tenant or the Premises,
and, in case of any such lien attaching, Tenant covenants and agrees to
cause it to be promptly bonded or released and removed of record. In the
event that such lien is not promptly bonded or released and removed,
Landlord, at its sole option, may take all action necessary to release and
remove such lien. Tenant, upon notice, shall promptly reimburse Landlord
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for all sums, costs and expenses (including reasonable attorneys' fees)
incurred by Landlord in connection with any lien described in this
Paragraph, and the same shall be deemed to be Additional Rent due
hereunder.
13. INSURANCE. Tenant shall carry insurance during the entire Term insuring
Tenant and Landlord as their interests may appear with terms and coverages
and in companies satisfactory to Landlord, and with such increases in
limits as Landlord may from time to time request, but initially Tenant
shall maintain the following coverages in the following amounts:
A. In case of fire or casualty loss of the Building, not less than
$3,000,000 increased annually for inflation increases;
B. In case of personal injury to or death of any person or persons, not
less than $l,000,000 for each injury or death to a person and
$5,000,000 for each incident involving personal injury or death to
more than one (1) person, and in case of property damage, not less
than $2,500,000 for any one occurrence (Landlord shall be a named
insured under the $10,000,000 umbrella liability policy carried by
Tenant; and
C. In case of fire, sprinkler leakage, malicious mischief, vandalism, and
other extended coverage perils, for the full insurable replacement
value of all additions, improvements and alterations to the Premises
and of all office furniture, trade fixtures, office equipment,
merchandise and all other items of Tenant's property on the Premises.
Tenant shall, prior to the commencement of the Term, furnish to Landlord
certificates evidencing such coverage, which certificates shall state that such
insurance coverage may not be changed or canceled without at least thirty days'
prior written notice to Landlord and Tenant. Subject to the provisions of
Paragraph 15, Tenant agrees to hold Landlord harmless, including reasonable
legal expenses in the event of injury or loss on the Premises.
14. FIRE OR CASUALTY.
A. Restoration/Cancellation Upon Major Damage. If the Premises or the
Building (including machinery or equipment used in its operation) are
damaged by fire or other casualty and if such damage does not render
all or a substantial portion of the Building or the Premises
untenantable, Landlord shall repair and restore the same with
reasonable promptness. If any such damage renders all or a substantial
portion of the Building or the Premises untenantable, Landlord shall
with reasonable promptness after the occurrence of such damage
estimate the length of time that will be required to substantially
complete the repair and restoration of such damage and shall by notice
advise Tenant of such estimate. If such estimate is that the amount of
time required to substantially complete the repair and restoration
will exceed ninety (90) days from the date such damage occurred,
either Landlord or Tenant shall have the right to terminate this Lease
as of the date of such notice upon giving notice to the other at any
time within ten (10) days after Landlord gives Tenant the notice
containing said estimate (it being understood that Landlord may, if it
elects to do so, also give such notice of termination together with
the notice containing such estimate). Unless this Lease is terminated
as provided in the preceding sentence, Landlord shall proceed with
reasonable promptness to repair and restore the Premises.
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B. Rent Abatement. In the event any such fire or casualty damage not
caused by the act or neglect of Tenant, its agents or servants,
renders the Premises, or any part thereof, untenantable and if this
Lease shall not be terminated pursuant to Paragraph 14(A) hereof by
reason of such damage, rent shall xxxxx during the period beginning
with the date of such damage and ending with the date when Landlord
tenders the Premises to Tenant as being ready for occupancy. Such
abatement shall be in an amount bearing the same ratio to the total
amount of rent for such period as the portion of the Premises not
ready for occupancy from time to time bears to the entire Premises.
15. LIMITATION OF LIABILITY
A. Notwithstanding anything to the contrary contained in this Lease,
neither the Landlord, its principals, shareholders, directors,
officers, contractors, agents, employees or assigns ("Landlord
Parties") shall be liable to Tenant or its partners, principals,
shareholders, directors, officers, contractors, agents, employees,
invitees, sub lessees, assignees, licensees or any other person or
entity claiming through or under Tenant for any loss, injury or damage
to Tenant or to any other person or entity, or to its or their
property, or for any inconvenience, annoyance, interruption or injury
to business arising from (i) Landlord performing any maintenance,
repairs, alterations, additions or improvements in or to any portion
of the Building or the demised premises or in or to the fixtures,
equipment or appurtenances of the Building or the demised premises
(nor shall Tenant or any other person or entity be entitled to any
abatement or suspension of its obligation to pay fixed annual rent or
any additional rent or any other obligations hereunder or be construed
to be constructively or otherwise evicted on account of the
foregoing), irrespective of the cause of such loss, injury, damage,
inconvenience, annoyance, interruption or injury unless caused by or
resulting from the gross negligence or willful misconduct of Landlord
or its agents or employees; provided, however, that even if due to any
such gross negligence or willful misconduct of Landlord, its agents or
employees, Tenant waives, to the full extent permitted by law, any
claim for any indirect, consequential or punitive damages, including
loss of profits in connection therewith and (ii) (notwithstanding
whether the loss, injury or damage is caused by the gross negligence
or willful misconduct of any Landlord Party) any injury or damage for
which Tenant would have been reimbursed under policies of insurance
required to be maintained by Tenant by the terms of this Lease had
Tenant (i) not failed to procure or maintain such policies of
insurance and (ii) not failed to procure or maintain such policies of
insurance with at least the limits specified herein.
B. Tenant shall look solely to the estate and property of Landlord in the
Land and Building for the satisfaction of Tenant's remedies for the
collection of a judgment or judicial process or arbitration award
requiring the payment of money by Landlord and no other property or
assets of Landlord, Landlord's agents, shareholders, officers,
directors, partners, members, principals (disclosed or undisclosed) or
affiliates, whether directly or indirectly through Landlord or through
any receiver, assignee, trustee in bankruptcy or through any other
person or entity shall be subject to levy, lien, execution, attachment
or other enforcement procedure for any liability of Landlord to Tenant
under this Lease or under law .
C. In no event shall Landlord be liable for any loss, injury or damage
(including indirect, consequential or punitive damages) claimed by
Tenant or any person or entity claiming through or under Tenant in
connection with the failure or refusal by Landlord to grant its
consent or approval with respect to any matter as to which it is
entitled to give its consent or approval pursuant to this Lease. If
Landlord withholds or delays its consent or conditions its consent and
Tenant believes that Landlord did so unreasonably, Tenant may
prosecute an action for declaratory relief to determine if Landlord
properly withheld, delayed or conditioned its consent, but Tenant
waives and discharges any claims it may have against Landlord for
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damages arising from Landlord's withholding, delaying or conditioning
its consent. In any such action, the non-prevailing party shall bear
all reasonable attorneys' fees incurred by the parties in connection
therewith.
D. Notwithstanding any provision to the contrary, Landlord covenants and
agrees to indemnify and hold harmless Tenant and its agents, servants,
employees and contractors from and against any actual out-of-pocket
damages and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred as a result of the gross
negligence or willful misconduct of Landlord, its agents, servants,
employees, contractors, licensees or invitees.
16. NONWAIVER. No waiver of any provision of this Lease shall be implied by any
failure of Landlord to enforce any remedy on account of the violation of
such provision even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than
the one specified in such waiver and that one only for the time and in the
manner specifically stated.
17. CONDEMNATION. If the Building or the Premises, or any portion thereof which
includes a substantial part of the Premises or which prevents the
economical operation of the Building or Premises are taken or condemned by
any competent authority for any public or quasi-public use or purpose, the
Term of this Lease and the term and estate hereby granted shall end upon,
and not before, the date when the possession of the part so taken shall be
required for such use or purpose and without apportionment of the
condemnation award. Tenant shall have no right to share in such award, but
may seek its own award for loss of or damage to Tenant's business or its
property resulting from such taking (provided that such an award to Tenant
does not in any way diminish the award payable to Landlord on account of
such taking). If the Lease is terminated, current rent shall be apportioned
as of the date of such termination.
18. ASSIGNMENT AND SUBLETTING. Tenant shall not, without the prior written
consent of Landlord, which consent may not be unreasonably withheld: (a)
assign, convey or mortgage the Lease or any interest hereunder; (b) suffer
to occur or permit to exist any assignment of this Lease or any lien upon
Tenant's interest, involuntarily or by operation of law; or (c) sublet more
than 40% of the Premises or any part thereof. Landlord's consent to any
assignment, subletting or transfer or Landlord's election to accept any
assignee, sublessee or transferee as Tenant hereunder shall not release the
original Tenant from any covenant or obligation under this Lease.
Landlord's consent to any assignment, subletting or transfer shall not
constitute a waiver of Landlord's right to withhold its consent to any
future assignment, subletting or transfer. Notwithstanding the foregoing,
Tenant may, upon prior written notice to Landlord, but without Landlord's
consent and without affording Landlord any recapture rights, assign this
Lease or sublet the Premises to its parent company or to any subsidiary or
affiliated company or to a purchaser of all or substantially all of
Tenant's assets or to any entity with which Tenant is merged or
consolidated, or in connection with a transfer of ownership interest in
Tenant, providing in any such event that the transaction is done for a bona
fide business purpose and not principally for the purpose of transferring
the Lease.
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Tenant shall give Landlord written notice of any proposed assignment or
sublease of more than 40% of the Premises, which notice shall contain the
proposed principal terms thereof, and upon receipt of such notice, Landlord
shall have the option to terminate the Lease. If Landlord wishes to
exercise such option to terminate, Landlord shall, within thirty (30) days
after Landlord's receipt of such notice from Tenant, send to Tenant a
notice so stating and in such notice Landlord shall specify the date as of
which such termination is effective, which date shall be not less than
thirty (30) and not more than ninety (90) days after the date on which
Landlord sends such notice. If Landlord does not elect to terminate as
aforesaid, Landlord may withhold its consent to any proposed assignment or
proposed subletting of more than 40% of the Premises if in Landlord's
reasonable business judgment, the proposed assignee or subtenant does not
have adequate financial responsibility.
19. SURRENDER OF POSSESSION. Upon the expiration of the Term or upon the
termination of Tenant's right of possession, whether by lapse of time or at
the option of Landlord as herein provided, all permanent alterations,
improvements and additions to the Premises, made or paid for by Landlord or
Tenant, shall without compensation to Tenant become Landlord's property at
the termination of this Lease by lapse of time or otherwise and shall be
relinquished to Landlord in good condition, ordinary wear and tear
excepted. Tenant shall remove all of its other property from the Premises.
If Tenant shall fail or refuse to remove any such property from the
Premises, Tenant shall be conclusively presumed to have abandoned the same,
and title thereto shall thereupon pass to Landlord without any cost either
by set-off, credit, allowance or otherwise. Landlord may at its option
accept the title to such property or, at Tenant's expense, may remove the
same or any part in any manner that Landlord shall choose and/or store,
destroy or otherwise dispose of the same without incurring liability to
Tenant or any other person.
Tenant shall surrender the Premises to Landlord in good order, repair and
condition, ordinary wear and tear excepted. Tenant's obligation to observe
or perform the covenants in this Paragraph shall survive the expiration or
other termination of this Lease.
20. ESTOPPEL. CERTIFICATE. Tenant agrees that upon request by Landlord, Tenant
will deliver to Landlord a statement in writing, certifying: (a) this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that the Lease as modified is in full force and effect); (b)
the dates on which Tenant began paying rent and that no rent has been paid
more than one month in advance; (c) neither Tenant nor Landlord is in
default under any provision of this Lease, or, if in default, the nature
thereof in detail; (d) Tenant has no existing defenses or offsets to the
enforcement of the Lease or, if any, specifying same; (e) provided the
Commencement Date has occurred, Tenant has accepted and occupied the
Premises and that the Premises have been completed in accordance with the
terms hereof; and (f) such other information as Landlord may reasonably
require; it being intended that any such statement may be relied upon by
any prospective purchaser, mortgagee or tenant of the Building, or any
prospective assignee of any mortgage thereof.
21. SUBORDINATION. This Lease is subject and subordinate to all present and
future ground or underlying leases of the Premises and to the lien of any
mortgages or trust deeds, now and hereafter in force against the Premises
and Building, or either, and to all renewals, extensions, modifications,
consolidation and replacements thereof, and to all advances made or
hereafter to be made upon the security of such mortgages or trust deeds.
Tenant shall at Landlord's request execute such further instruments or
assurances as Landlord may deem necessary to evidence or confirm the
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subordination of this Lease to any such mortgages, trust deeds, ground
leases or underlying leases. Landlord shall use its reasonable commercial
efforts to obtain for Tenant a non-disturbance agreement from any current
or future mortgagee, deed trustee or grand lesser.
22. CERTAIN RIGHTS RESERVED BY LANDLORD. Landlord shall have the following
rights, each of which Landlord may exercise without liability to Tenant for
damage or injury to property, person or business on account of the exercise
thereof, and the exercise of any such rights shall not be deemed to
constitute an eviction or disturbance of Tenant's use or possession of the
Premises and shall not give rise to any claim for set-off or abatement of
rent or any other claim:
A. To change the Building's name or street address.
B. To decorate or to make repairs, alterations, additions, or
improvements, whether structural or otherwise, in and about the
Building, or any part thereof, and for such purposes to enter upon the
Premises, and, during the continuance of any of said work, to
temporarily close doors, entryways, public space and corridors in the
Building and to interrupt or temporarily suspend services or use of
facilities, all without affecting any of Tenant's obligations
hereunder, so long as the Premises are reasonably accessible and
usable.
C. To retain at all times, and to use at appropriate instances, keys to
all doors within and into the Premises. Landlord shall give Tenant
reasonable prior notice before entering the Premises except in the
event of emergency. Notwithstanding the provisions for Landlord's
access to portions of the Premises, Tenant relieves and releases
Landlord of all responsibility arising out of thief, robbery and
pilferage.
D. To approve the weight, size and location of safes, vaults and other
heavy equipment and articles in and about the Premises and the
Building (so as not to exceed the legal live load per square foot
designated by the structural engineers for the Building), and to
require all such items and furniture and similar items to be moved
into or out of the Building and Premises only at such times and in
such manner as Landlord shall direct in writing. Tenant shall not
install or operate machinery or any mechanical devices of a nature not
directly related to Tenant's ordinary use of the Premises without the
prior written consent of Landlord. Movements of Tenant's property into
or out of the Building and within the Building are entirely at the
risk and responsibility of Tenant.
E. To show the Premises to prospective buyers or mortgagees at reasonable
hours during the Term, and to show the Premises to prospective Tenants
at reasonable hours during the last six (6) months of the Term, and,
if vacated or abandoned, to show the Premises at any time and to
prepare the Premises for re-occupancy. Landlord will give at least 24
hours' notice to Tenant.
23. DEFAULT/LANDLORD'S REMEDIES. If (a) payment of rent or any installment
thereof or any other sum required to be paid by Tenant under this Lease or
under the terms of any other agreement between Landlord and Tenant is not
made within ten (10) days of receipt of notice of nonpayment; (b) Tenant
breaches its obligation to observe or perform of any of the other covenants
or conditions in this Lease and such breach shall continue for a period of
ten (10) days of receipt of written notice to Tenant; (c) Tenant's breach
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involves a hazardous condition and is not cured by Tenant immediately upon
written notice to Tenant; (d) the interest of Tenant in this Lease shall be
levied on under execution or other legal process; (e) voluntary petition in
bankruptcy or for corporate reorganization or any similar relief shall be
filed by Tenant; (f) any involuntary petition in bankruptcy shall be filed
against Tenant under any federal or state bankruptcy or insolvency act and
shall not have been dismissed within thirty (30) days from the filing
thereof; (g) a receiver shall be appointed for Tenant or any of the
property of Tenant by any court and such receiver shall not have been
dismissed within thirty (30) days from the date of his appointment; (h)
Tenant shall make an assignment for the benefit of creditors; (i) Tenant
shall admit in writing Tenant's inability to meet Tenant's debts as they
mature; or (j) the Premises are vacated, abandoned or deserted during the
Term, Landlord may treat the occurrence of any one or more of the foregoing
events as a default of Tenant under this Lease, and thereupon at its option
may, with or without notice or demand of any kind to Tenant or any other
person, have any one or more of the following described remedies in
addition to all other rights and remedies provided at law or in equity or
elsewhere herein:
A. Landlord may (1) terminate this Lease and the Term created thereby and
thereupon re-enter and take possession of the Premises, with legal
process, and (2) at its option and without further notice, declare the
rent, for the entire remaining term of this Lease, and any other
indebtedness hereunder, if any, immediately due and payable without
regard to whether or not possession shall have been surrendered to or
taken by Landlord, and may commence action immediately thereupon and
recover judgment therefore. In determining the rent which would be
payable by Tenant hereunder subsequent to default, the rent for each
year of the unexpired Term shall be calculated by computing the Gross
Rent for such period and any other sums of money which Tenant may not
have paid when due discounted to present value at five percent (5%)
per annum.
B. Landlord may terminate Tenant's right of possession and may repossess
the Premises by forcible entry or any legal means with due process of
law, by taking peaceful possession or otherwise, without terminating
the Lease, in which event Landlord may, but shall be under no
obligation to, relet the same for the account of Tenant, for such rent
and upon such terms as shall be satisfactory to Landlord, for the
purpose of such reletting, Landlord is authorized to decorate or to
make any repairs at Tenant's cost. If Landlord shall fail to relet the
Premises, Tenant shall pay to Landlord as damages a sum equal to the
amount of the rental reserved in this Lease for the balance of its
Term discounted to present value at five percent (5%) per annum.
Landlord agrees to use reasonable commercial efforts to re-let the
Premises. If the Premises are relet and a sufficient sum shall not be
realized from such reletting after paying all of the costs and
expenses of such decorations, repairs, changes, alterations and
additions and the expenses (including commissions) of such reletting
and of the collection of the rent accruing therefrom to satisfy the
rent provided for in this Lease, Tenant shall satisfy and pay any such
deficiency upon demand therefore from time to time. Tenant agrees that
Landlord may file suit to recover any sums falling due under the terms
of this Paragraph from time to time and that no suit or recovery of
any portion due Landlord hereunder shall be any defense to any
subsequent action brought for any amount not theretofore reduced to
judgment in favor of Landlord.
24. EXPENSES OF ENFORCEMENT. Tenant shall pay/reimburse Landlord the costs and
expenses incurred in enforcing Tenant's obligations hereunder, including
reasonable attorneys' fees.
25. COVENANT OF QUIET ENJOYMENT. Landlord covenants that, subject to the terms,
covenants, conditions, provisions, and agreements hereof, Tenant shall
peaceably and quietly have, hold and enjoy the Premises upon paying rent,
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charges for services and other payments herein reserved, and, on keeping,
observing and performing all the other terms, covenants, conditions,
provisions and agreements herein contained on the part of Tenant to be kept
observed and performed.
26. HAZARDOUS WASTE. Tenant shall not cause or permit any "hazardous material"
(as hereinafter defined) to be used, stored, transported, released,
handled, produced or installed in, on or from the Premises or any other
portion of the Building or Premises. "Hazardous material" as used herein
shall mean any flammables, explosives, radioactive material, hazardous
waste, hazardous or toxic substances or related materials, asbestos or any
material containing asbestos, or any other substance or material as defined
in any federal, state or local environmental law, ordinance, rule or
regulation, including, without limitation, the Comprehensive Environmental
Response Compensation and Liability Act of 1980, as amended, the Hazardous
Material Transportation Act, as amended, the Resource Conservation and
Recovery Act, as amended, and in the regulations adopted in publications
promulgated pursuant to each of the foregoing. In the event of a breach of
the provisions of this Paragraph, Landlord shall have the right in addition
to all other rights and remedies of Landlord under this Lease or at law, to
require Tenant to remove such hazardous materials from the Premises or
other portion of the Building or Premises in the manner prescribed for such
removal by law and requirements of any public authorities. The provisions
of this Paragraph shall survive the expiration or any other termination of
this Lease. Landlord represents that the Premises shall be free of all
hazardous material upon delivery of possession to Tenant.
27. MISCELLANEOUS.
A. Rights Cumulative. All rights and remedies or Landlord under this
Lease shall be cumulative and shall not exclude any other rights and
remedies allowed by law.
B. Terms. The necessary grammatical changes required to make the
provisions hereof apply either to corporations or partnerships or
individuals, men or women, as the case may require, shall in all cases
be assumed as though in each ease fully expressed.
C. Binding Effect. Each of the provisions of this Lease shall extend to
and shall, as the case may require, bind or inure to the benefit not
only of Landlord and of Tenant, but also of their respective
successors or assigns, provided this clause shall not permit any
assignment by Tenant contrary to the provisions of Paragraph 16
hereof.
D. Lease Contains All Terms. All of the representations and obligations
of Landlord are contained herein, and no modification, waiver or
amendment of this Lease or of any of its conditions or provisions
shall be binding upon Landlord unless in writing signed by Landlord or
by a duly authorized agent of Landlord empowered by a written
authority signed by Landlord.
E. Transfer of Landlord's Interest. Tenant acknowledges that Landlord has
the right to transfer its interest in the Premises and Building and in
this Lease, and Tenant agrees that in the event of any such transfer,
Landlord shall automatically be released from all liability under this
Lease and Tenant agrees to look solely to such transferee (the
"Purchaser") for the performance of Landlord's obligations hereunder.
If the interests of Landlord under this Lease shall be transferred
voluntarily or by reason of foreclosure or other proceedings for
enforcement of any mortgage on the Premises or Building, Tenant shall,
at the election of such transferee, be bound to such transferee for
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the balance of the Term hereof remaining, with the same force and
effect as if the Purchaser were Landlord under this Lease, and Tenant
does hereby agree to attorn to the Purchaser, including the mortgagee
under any such mortgage if it be the Purchaser, as its Landlord, said
attornment to be effective and self-operative without the execution of
any further instruments, upon the Purchaser succeeding to the interest
of Landlord under this Lease. Landlord's successor(s) will at Tenant's
request enter into a writing affirming the enforceabilty of Tenant's
leasehold interest so long as Tenant fulfills its obligations
hereunder.
Notwithstanding the foregoing, however, Tenant hereby agrees to
execute any instrument(s) which Landlord may deem desirable to
evidence said attornment by Tenant. The respective rights and
obligations of Tenant and the Purchaser upon such attornment, to the
extent of the then remaining balance of the Term of this Lease and any
such extensions and renewals, shall be and are the same as those set
forth herein.
F. Landlord's Title. Landlord's title is and always shall be paramount to
the title of Tenant. Nothing herein contained shall empower Tenant to
do any act, which can, shall or may encumber the title of Landlord.
G. Prohibition Against Recording. Neither this Lease nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by
Tenant or by anyone acting through, under or on behalf of Tenant, and
the recording thereof in violation of this provision shall make this
Lease null and void at Landlord's election.
H. Captions. The captions, paragraphs and subparagraphs are for
convenience only and shall not be deemed to limit, construe, affect or
alter the meaning of such sections or subsections.
I. Only Landlord/Tenant Relationship. Nothing contained in this Lease
shall be deemed or construed by the parties hereto or by any third
party to create the relationship of principal and agent, partnership,
joint venture or any association between Landlord and Tenant, it being
expressly understood and agreed that neither the method of computation
of rent nor any other provisions contained in this Lease nor any act
of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of Landlord
and Tenant.
J. Security. Landlord shall not be responsible and/or liable for the
security of Tenant's employees, patrons, guests, or others who come on
or about the Premises in connection with Tenant or Tenant's use, or
for any damage to or theft of personal property left in or about the
Premises.
K. Landlord's Lien. To secure Tenant's performance under this Lease,
Landlord does and shall have a Landlord's lien on Tenant's personal
property, equipment and trade fixtures within the Premises to the
extent permitted by law. Landlord shall have such rights and remedies
in connection with such lien as are available under applicable
statutes and common laws.
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28. CHOICE OF LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of South Carolina, but without giving
effect to any choice or conflict of law provision or rule that would cause
application of the law of any other jurisdiction.
29. NOTICES. All notices to be given under this Lease shall be in writing and
delivered personally or deposited in the United States mail, certified or
registered mail with return receipt requested, postage prepaid and
addressed as follows:
A. If to Landlord: With a copy to:
CK Holdings, LLC K Holdings, LLC 3
000 Xxxxxxx Xxxxxx Xxxx Xxxxxx Xxx 000
Xxxxxxxx, XX 00000 Xxxxx, XX 00000
or to such other person at such other address designated by notice sent by
Landlord to Tenant.
B. If to Tenant: Addressed to Tenant at Tenant's present address, and
after occupancy of the Premises by Tenant, at 0000 Xxxxxxx Xxxxx Xxxx,
Xxxxxxxx, XX 00000, or to such other address as is designated by
Tenant in a notice to Landlord.
Notice by mail shall be deemed to have been given three days after deposited in
the United States mail as aforesaid.
IN WITNESS OF the foregoing, Landlord and Tenant have signed this Lease as of
the date first written above.
CK HOLDINGS, LLC, LANDLORD WITNESS
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
HAMPSHIRE DESIGNERS, INC.,
TENANT WITNESS
By: /s/ H. Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
-------------------------------- --------------------------------
Name: H. Xxxxxx Xxxxxx
Title: Executive Vice President
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Xxxxxxxx X
XX XXXXXXXX XXXXXXXX
Xxxxxxxx: CK Holdings, LLC
Tenant: Hampshire Designers, Inc.
Premises: Three-floor building, as outlined in Exhibit A
Attached hereto. 1st & 2nd floors = 12,224
sq./ft +/- each = 24,448 sq./ft. (at $10.75
per sq. ft.) = $262,644 and 3rd floor = 6,590
sq. ft. +/- (storage space at $2.00 per sq./ft.)=
$13180, plus right of egress and parking area.
Lease Term: Twelve (12) years from the Commencement Date
Lease Commencement Date: January 1, 2006
Lease Termination Date: December 31, 2017
Option Periods: Jan. 1, 2018-Dec. 31, 2021 &
Jan. 1, 2022-Dec. 31, 2025
Rent: Annualized Rent for the first lease year shall be
$275,996 payable in monthly installments of $23,000.
Commencing on the first anniversary of the Lease
Commencement Date and continuing on each anniversary
thereafter, Rent shall increase from year to year at
the rate of three and one half percent (3.5%)
over the prior year's Rent or the increase in the
Consumer Price Index ("CPI"), whichever is greater.
Brokers: None
Use: General, administrative and executive offices
Right to sublet up to 40% of space.
TENANT: WITNESS
By: /s/ H. Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
------------------------------ ----------------------------
Name: H. Xxxxxx Xxxxxx
Title: Executive Vice President
LANDLORD: WITNESS
By: /s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxx
------------------------------ ----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Member
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