Exhibit (10)(H)(3)
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MTB Bank
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
(000) 000-0000
Fax: 000-0000
July 14, 1999
Segue (America) Limited
c/o Hampshire Group Limited
000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
Re: Renewal of Credit Facility
Dear Xx. Xxxxxxx:
Reference is made to the Credit Agreement dated February 15, 1995 executed by
and between Segue (America) Limited, formerly named Vintage, Inc., a Delaware
corporation (the "Borrower") and MTB Bank (the "Bank") and the Letter of Credit
and Security Agreement, the Corporate Guarantee executed by Hampshire Group
Limited (the "Corporate Guarantor") and other related loan documents executed in
connection therewith (collectively, the "Loan Documents"). All capitalized terms
used herein and not defined shall have the meanings set forth in the Credit
Agreement.
Effective July 14, 1999, the Borrower and the Bank hereby agree to amend the
Credit Agreement as follows:
The definition of Termination Date set forth in Section I(f) of the Credit
Agreement is hereby amended by deleting the date "April 30, 1999" therefrom
and inserting the date "April 30, 2000" in its place.
Each of the Loan Documents is hereby amended to give effect to the foregoing and
except as amended hereby, each such Loan Document remains in full force and
effect in accordance with its terms.
The Corporate Guarantor acknowledges and confirms that the term "Obligations"
referred to in the Corporate Guarantee executed by it includes, without
limitation, the indebtedness, liabilities and obligations of the Borrower under
the Credit Agreement, as amended hereby. The foregoing amendment shall not
affect or impair in any way the validity, binding effect or enforceability of
any Loan Document to which the Borrower or the Corporate Guarantor is party, and
the Borrower's and Guarantor's obligations and the Bank's rights and remedies
thereunder shall continue in full force and effect, notwithstanding such
amendment.
1
If the foregoing is acceptable to you, kindly execute both copies of this
letter, returning it to MTB Bank, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attn: Xx. Xxxxxxx Xxxxx no later than July 31, 1999. Upon receipt by
the Bank of counterparts of this letter duly executed by all the parties listed
below by such date, this letter shall become a binding agreement between the
Bank and the other signatories hereto as of the date first above written.
Very truly yours,
MTB BANK
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Senior Vice President
Chief Lending Officer
Accepted and Agreed:
SEGUE (AMERICA) LIMITED,
formerly named VINTAGE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Vice President - Finance
HAMPSHIRE GROUP LIMITED,
as Corporate Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
2
Exhibit (10)(J)(7)
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LEASE
BETWEEN
XXXX XXXXXXXXX AND XXXXX XXXXXXXXX
HUSBAND AND WIFE
LESSOR,
AND HAMPSHIRE DESIGNERS, INC.
LESSEE,
WAREHOUSE D/C
000 X. 0XX XX.
XXXXXX, XXXXXXXXX
LEASE DATE: JUNE 15,1999
LEASE
THIS LEASE (this "Lease"), dated as of the 15th day of June, 1999, is made
by and among XXXX XXXXXXXXX and XXXXX XXXXXXXXX, husband and wife, having an
address at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 ("Lessor") and HAMPSHIRE
DESIGNERS, INC., a corporation organized under the laws of the State of Delaware
having an address at X.X. Xxx 0000, 000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxx
Xxxxxxxx 00000 ("Lessee").
A. Lessor is the owner of the Demised Premises (hereinafter defined).
X. Xxxxxx desires to lease to Lessee, and Lessee desires to lease from
Lessor, the Demised Premises.
NOW, THEREFORE for good and valuation consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee agree as
follows:
ARTICLE I - Premises
1.1. Demised Premises. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, for the Term (hereinafter defined), at the rental, and upon all of
the Term covenants and conditions set forth herein, the following (collectively,
the "Demised Premises"):
(a) that certain real property located at 000 X. 0xx Xx., Xxxxxx, Xxxxxxxxx
and described in Exhibit A attached hereto and made a part hereof, together with
any buildings and improvements now or hereafter located therein or thereon
(collectively, the "Real Property");
(b) all right, title and interest, if any, of Lessor in and to any land
lying in the bed of any street, road or avenue, open or proposed, in front of or
adjoining the Real Property to the center line;
(c) all right, title and interest, if any, of Lessor in and to any strips
and gores of land adjacent to, abutting, or used in connection with the Real
Property, and in and to easements, if any, ensuring to the benefit of the Real
Property or the fee owner;
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(d) any appurtenances and hereditaments belonging or in any wise
appertaining to the Real Property; and
(e) any and all personal property located at the Real Property owned by
Lessor and used in connection with the operation of the Real Property as a
manufacturing and/or warehouse facility; and
(f) any and all leases, tenancies and occupancy agreements in any way
affecting the Real Property.
ARTICLE II - Term
2.1. Initial Term. The term of this Lease (as the same may be extended, the
"Term") shall commence on the date hereof (the "Commencement Date") and shall
continue until Oct.31, 2004 (the "Initial Term").
2.2. Renewal Options.
(a) Lessee shall have the option to extend the Term on all of the terms and
provisions contained in this Lease, except for the payment of Rent, for a three
year renewal term (the "First Renewal Term") following the expiration of the
Initial Term of this Lease, by giving written notice to Lessor of the exercise
of this option to extend the Term not later than 135 days prior to the
expiration of the Initial Term.
ARTICLE III - Rent
3.1. Fixed Rent
(a) The term "Lease Year" shall mean each 12-month period commencing on
Nov.1 of each year succeeding through end of the previous Lease Year. The
initial Lease Year shall commence on the Commencement Date and shall end on Oct.
31 of the year after the date of this Lease. Lessee shall, during the Term, pay
to Lessor at such place as Lessor shall designate in writing, from time to time,
and, except as expressly provided herein, without offset, counterclaim, defense
or demand therefor, the following annual minimum rentals (hereinafter, the
"Fixed Rent"):
(i) during the initial Three Lease Years, $95,107.50 per annum
($7,925.63/Month); and
(ii) during each succeeding Lease Year after the first three years
(e.g. 6/99 - 10/02) (including, without limitation, any Lease Year
occurring during any renewal term hereunder) an amount per annum which
equals (x) the Fixed Rent for the preceding Lease Year, plus (y) 4% of the
Fixed Rent for the preceding Lease Year, (e. g. starting 11/02 - 11/03)
(b) The Fixed Rent shall be payable monthly in advance on the first day of
each month, in equal monthly installments equal to one-twelfth (1/12) of the
Fixed Rent.
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(c) Fixed Rent for any period during the Term which is for less than one
calendar month shall be prorated based on the number of calendar days in such
calendar month that falls within the Term.
3.2. Additional Rent. Lessee shall, during the Term pay to Lessor at such place
as Lessor shall designate in writing, from time to time, and except as expressly
provided herein, without offset, counterclaim, defense or demand thereof,
additional rent ("Additional Rent") consisting of all other sums of money that
become due from Lessee and payable to Lessor hereunder. Fixed Rent and
Additional Rent are hereinafter collectively referred to as "Rent".
ARTICLE IV - Use
The Demised Premises shall be used for manufacturing, warehousing, storage,
distributing, general office purposes and/or any other lawful purposes. Lessee
shall obtain, at its sole cost and expense, all licenses, approvals and permits
required for Lessee's use and occupancy of the Demised Premises. Lessee shall
not use or permit the use of the Demised Premises, in violation of an applicable
law, statute, ordinance, code, rule, regulation order or decree, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act, the Resource Conservation and Recovery Act, and so-called
"Superfund" or "Superlien" law, or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to,
or imposing liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time hereafter in
effect.
ARTICLE V. - Compliance With Law
5.1. Lessor Compliance. Lessor covenants and agrees with Lessee that during the
Term, the Demised Premises shall, but without regard to the use for which Lessee
will use the Demised Premises, comply with all applicable laws, statutes,
ordinances, rules, regulations and orders of all federal, state, municipal and
local governmental authorities having jurisdiction over the Demised Premises,
including, building and zoning codes, regulations and ordinances and
environmental codes, regulations and laws, including those related to pollution
and contamination (collectively "Governmental Laws"). If it is determined that
this covenant has been violated, then it shall be the obligation of Lessor,
after written notice from Lessee, to promptly, at Lessor's sole cost and
expense, rectify any such violation.
5.2. Lessee Compliance. Lessee shall, at Lessee's expense, promptly comply with
all Governmental Laws relating to the Demised Premises in effect during the Term
or any part of the Term regulating the use by Lessee of the Demised Premises.
5.3. Contests. Lessee shall have the right, to the extent permitted by law, at
its own expense to contest the validity and/or applicability of any Governmental
Laws relating the Demised Premises by appropriate proceedings diligently
conducted in good faith, and, notwithstanding the provisions of Paragraph 5.2
hereof, Lessee's compliance with such contested Governmental Laws may be
postponed or deferred during the pendency of such proceeding so long as neither
the Demised Premises nor any part thereof would, by reason of such noncompliance
be, in the reasonable judgment of Lessor, in danger of being forfeited or lost
and Lessor shall not be subject to any criminal or civil liability.
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ARTICLE VI - Condition of the Demised Premises
Lessee hereby agrees to accept the Demised Premises in accordance with the
terms of this Lease, subject to all Governmental Laws and restrictions of record
governing and regulating the use of the Demised Premises, and accepts this Lease
subject thereto and to all matters disclosed thereby and by any exhibits
attached hereto.
ARTICLE VII - Maintenance and Repairs
7.1. Lessee Repair Obligations. Lessee shall, at its expense, take good care of
the Demised Premises, the fixtures, and appurtenances therein and any of
Lessee's trade fixtures, furnishings, equipment and personal property
(collectively, "Lessee's Property"). Except as provided in Paragraph 7.2, Lessee
shall be responsible for and shall promptly make all repairs, interior and
exterior, structural and nonstructural, ordinary and extraordinary, in and to
the Demised Premises. Lessee, at its expense, shall be responsible for the
repair, maintenance and replacement of all mechanical, electrical, sanitary,
heating, ventilating, air-conditioning and other fixtures and equipment in the
Demised Premises (the "Building System").
7.2. Lessor Repair Obligations. Lessor agrees, at its sole cost and expense, to
make any and all repairs and replacements of the roof of the Demised Premises.
ARTICLE VIII - Surrender
On the last day of the Term, or on any sooner termination of this Lease,
Lessee shall surrender the Demised Premises to Lessor in the same condition as
when received by Lessee broom clean, ordinary wear and tear and damage due to
perils beyond the reasonable control of Lessee excepted. These perils include,
but are not limited to, fire, earthquake, flood, windstorm and other so-called
"acts of God", vandalism, malicious mischief, and sprinkler damage.
ARTICLE IX - Lessor's and Lessee's Rights
If either party fails to perform its obligations hereunder, the other may
at its option (but shall not be required to) put the same in good order,
condition and repair, upon thirty (30) days written notice to the non-performing
party (which written notice shall not be required in the case of an emergency)
and the cost thereof, together with interest thereon at the Lease Interest Rate
(as defined in Paragraph 21.3) shall become due and payable from the
non-performing party to the other party within ten (10) days after demand by the
performing party; provided, however, if the obligation of the non-performing
party is not capable of being performed within such thirty (30) day period and
if the non-performing party is diligently endeavoring to perform such
obligation, the performing party shall not perform such obligation. All such
work performed by the performing party shall be performed in a good and
workmanlike manner, in compliance with all Governmental Laws. Neither Lessee nor
Lessor shall perform any such work until such time as it has received all
necessary permits, licenses and approvals from the applicable state, county and
municipal governmental authorities having jurisdiction over the Demised Premises
("Governmental authorities"). If either party performs any such work, such party
shall, at all times, keep the Demised Premises free of liens and encumbrances
for labor and materials.
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ARTICLE X - Alterations and Improvements
10. 1. Lessee Alterations. Lessee shall have the right, at its own cost and
expense, to make such alterations and changes in and to the Demised Premises as
it shall deem expedient or necessary for its purposes. All such work shall be
done in a good and workmanlike manner, and in accordance with all Governmental
Laws. Lessor shall execute and deliver upon request of Lessee such reasonable
instrument or instruments embodying the approval of Lessor which may be required
by any Governmental Authority for the purpose of obtaining any license, permit
or approval for the making of alterations or changes in, to or upon the Demised
Premises, Lessee agreeing to pay for any such license, permit or approval.
Lessee shall not make any alterations to the Demised Premises until such time as
it has received all required permits, licenses and approvals from the applicable
Governmental Authority.
10.2. Removal of Improvements. Any and all alterations, improvements and
installations made by Lessee in, to or upon the Demised Premises, as well as any
fixtures installed on the Demised Premises by Lessee, at Lessee's option, may be
removed from the Demised Premises at any time and from time to time during the
Term and shall remain the property of Lessee during and at the expiration of the
Term of this Lease, provided that, if any such alterations, improvements,
installations and/or fixtures are removed by Lessee, any damage caused by such
removal shall be promptly repaired by Lessee at its sole cost and expense.
ARTICLE XI - Insurance
11. 1. Insurance Coverage.
(a) Lessee shall, at Lessee's cost and expense maintain the following
insurance issued in the names of Lessor and Lessee as their interests may
appear:
(i) a policy of standard fire and extended coverage insurance on all
buildings and improvements included in the Demised Premises with vandalism
and malicious mischief endorsements, to the extent of full replacement
value; and
(ii) a policy of general public liability insurance against claims for
personal injury or property damage, with such limits as may be reasonably
requested by Lessor from time to time, but not more than Two Million
Dollars ($2,000,000) in respect of bodily injury or death and One Million
Dollars ($1,000,000) for property damage.
(b) All such insurance policies shall provide that any proceeds shall be
made payable to Lessee in accordance with the terms of this Lease.
(c) All such insurance policies may, at the option of Lessee, be effected
by blanket and/or umbrella policies issued to Lessee covering the Demised
Premises and other properties owned or leased by Lessee or its affiliates.
(d) Lessor shall not obtain or continue to maintain any separate or
additional insurance which is contributing in the event of loss unless it is
properly endorsed and otherwise satisfactory to Lessee in all respects.
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11.2. Certificates. All insurance provided for under this Lease shall be
effected under valid enforceable policies issued by insurers of recognized
responsibility and who are reasonably acceptable to Lessor and licensed to do
business in the State of Minnesota. Such insurance may be carried by Lessee as a
part of blanket coverage for such insurance covering all premises owned or
leased by Lessee wherever located. Certificates of Insurance evidencing the
current existence of such coverage shall be delivered by Lessee to Lessor,
together with satisfactory evidence of payment of the premium on such policies.
To the extent obtainable, all such policies shall contain agreements by the
insurers that such policies shall not be canceled except upon thirty days' prior
written notice to each named insured and loss payee, including Lessor.
11.3. Adjustments. All policies of insurance required herein shall name Lessor
and Lessee as the insureds as their respective interest may appear. The loss, if
any, under said policies referred to in this Article 11 shall be adjusted with
the insurance companies by Lessee to the extent that Lessee is obligated to
repair or restore the Demised Premises pursuant to Article XII hereof and by
Lessor in the event that Lessee is not so obligated to restore.
11.4. Proceeds. All proceeds payable by reason of any loss or damage to the
Demised Premises, or any portion thereof, and insured under any policy of
insurance required by this Article I I shall be paid to Lessee and shall be used
only for reconstruction or repair, as the case may be, of any damage to or
destruction of the Demised Premises, or any portion thereof. Any excess proceeds
of insurance remaining after the completion of the restoration or reconstruction
of the Demised Premises shall be retained by Lessee. In the event Lessee is not
required or does not elect to repair and restore, and this Lease expires or is
terminated, all such insurance proceeds shall be paid to and retained by Lessor.
ARTICLE XII - Damage or Destruction
12.1. Restoration. Subject to the provisions (if Paragraph 12.2 hereof, Lessee
covenants that in the event of damage to all or a portion of the Demised
Premises by fire or any other cause, similar or dissimilar, insured or uninsured
(a "Casualty"), Lessee will promptly, at its sole cost and expense, restore or
repair the Demised Premises so damaged or destroyed as nearly as possible to the
condition it was in immediately prior to such Casualty, or with such changes or
alterations as Lessee shall elect to make in conformity with Article 10 hereof,
whether or not any costs or expenses of such restoration exceeds the amount of
the insurance proceeds received in connection with such damage or destruction.
Such restoration, shall be commenced promptly and prosecuted with reasonable
diligence, unavoidable delays excepted.
12.2. Termination Option. Notwithstanding the provisions of Paragraph 12.1
hereof, in the event that at any time during the Term all or a portion of the
Demised Premises are damaged to the extent that, in Lessee's reasonable
judgment, either (x) the cost of the necessary repairs or restoration would
exceed fifty percent (50%) of the estimated marked value of the Demised Premises
as determined by the Winona county Assessor's Office for the year in which such
damage shall have occurred or (y) the necessary repairs or restoration would not
be substantially completed within six (6) months from the date of said casualty,
Lessee may terminate this Lease upon delivery of written notice to Lessor within
sixty (60) days after the occurrence of the casualty causing such damage and
Lessee shall be released from any liability under this Lease accruing from and
after the date of Lessor's receipt of said notice. In the event that Lessee
terminates this Lease as provided in the immediately preceding sentence, all
insurance proceeds resulting from said casualty shall be paid to and retained by
Lessor.
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ARTICLE XIII - Taxes
13. 1. Impositions. Lessee covenants and agrees to pay or cause to be paid, as
hereinafter provided, to the Governmental Authority imposing the same, all of
the following items ("Impositions") not later than the date on which same are
due without the payment of any fines, penalties or interest: (a) real property
taxes and assessments assessed and levied against the Demised Premises or any
part thereof, (b) personal property taxes, (c) water, water meter and sewer
rents, rates and charges, and (d) fines, penalties and other similar or like
governmental charges applicable to the foregoing and any interest or costs with
respect thereto only to the extent such fines, penalties and other similar or
like governmental charges are incurred by reason of Lessee's wrongful act or
omission or Lessee's failure fully and promptly to comply with any provisions of
this Lease. Each such Imposition, or installment thereof, during the Term shall
be paid prior to the last day the same may be paid without fine, penalty,
interest or additional cost; provided, however, that if, by law, any Imposition
may at the option of the taxpayer be paid in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Lessee may
exercise the option to pay the same in such installments and shall be
responsible for the payment of such installments only.
13.2. Evidence of Payment. If Lessee is paying any Imposition directly to the
Governmental Authority imposing the same, then Lessee, from time to time upon
the request of Lessor, shall furnish to Lessor, within the earlier of (i) thirty
(30) days after the date when such Imposition is due and payable under this
Lease, or (ii) thirty (30) days after the date when an official receipt of the
Governmental Authority imposing the same is received, such official receipt or,
if no such receipt has been received by Lessee, other evidence reasonably
satisfactory to Lessor, evidencing the payment of the Imposition.
13.3. Excluded Taxes. Nothing herein contained shall require Lessee to pay
municipal, state or federal income, inheritance, estate, succession, transfer or
gift taxes of Lessor, or any corporate franchise tax imposed upon Lessor or any
gross income or gross receipts taxes to the extent the same are imposed on
Lessor in lieu of net income taxes or corporate franchise taxes.
13.4. Apportionments. Any Imposition, relating to a fiscal period of the
imposing Governmental Authority, a part of which period is included within the
Term and a part of which is included in a period of time before the Commencement
Date or after the expiration of the Term (whether or not such Imposition shall
be assessed, levied, confirmed, imposed upon or in respect of or become a lien
upon the Demised Premises, or shall become payable, during the Term) shall be
apportioned between Lessor and Lessee as of the Commencement Date or the date of
expiration of the Term, as the case may be, so that Lessee shall pay that
portion of such Imposition which that part of such fiscal period included in the
period of time after the Commencement Date and before the date of expiration of
the Term.
13.5. Contests.
(a) Lessee shall have the right, to the extent permitted by law, at its own
expense to contest the amount or validity, in whole or in part, of any
Imposition by appropriate proceedings diligently conducted in good faith, and,
notwithstanding the provisions of Paragraph 13.1 hereof, the payment of such
contested Imposition may be postponed or deferred so long as neither the Demised
Premises nor any part thereof, nor any part of the rents, issues and profits
thereof, would, by reason of such postponement or deferment, be, in the
reasonable judgment of Lessor, in danger of being forfeited or lost and Lessor
shall not be subject to any criminal or civil liability.
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(b) Lessee shall have the right, to the extent permitted by law, and at
Lessee's sole cost and expense, to seek a reduction in the valuation of the
Demised Premises assessed for real property tax purposes and to prosecute any
action or proceeding in connection therewith. Lessor shall fully cooperate with
Lessee in any such proceeding.
(c) Lessor shall not be required to join in any proceedings referred to in
Paragraphs 13.5(a) and (b) hereof unless the provisions of any law, rule or
regulation at the time in effect shall require that such proceedings be brought
by and/or in the name of Lessor, in which event, Lessor shall join and cooperate
in such proceedings or permit the same to be brought in its name, but shall not
be liable for the payment of any costs or expenses in connection with any such
proceedings and Lessee shall reimburse Lessor for any and all reasonable costs
or expenses which lessor may sustain or incur in connection with any such
proceedings.
ARTICLE XIV - Utilities and Services
14.1. Lessor Representation. Lessor represents and warrants that the Demised
Premises are equipped with all plumbing equipment, electrical facilities and
lighting fixtures and equipment, heating, air conditioning, ventilating, and
other appurtenant equipment and facilities necessary or appropriate for Lessee's
use of the Demised Premises in the manner used prior to the date hereof or as
otherwise required by Governmental Laws. Lessee will pay, or cause to be paid
all charges for electricity, power, gas, oil, water and other utilities used in
connection with the Demised Premises during the term of this Lease.
14.2. No Services. Lessor shall not be obligated to furnish utilities or
services to the Demised Premises.
ARTICLE XV - Assignment
15.1. Except as expressly permitted in this Lease, Lessee shall not voluntarily
or by operation of law assign all or any part of Lessee's interest in this
Lease, without Lessor's prior written consent, which Lessor shall not
unreasonably withhold, condition or delay. Any attempted assignment without such
consent shall be void and shall constitute a breach of this Lease, unless the
same is expressly permitted hereunder.
15.2. Notwithstanding the provisions of Paragraph 15.1 hereof, Lessee may assign
this Lease, without Lessor's consent, to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, to any person or entity
which acquired all the assets of Lessee as a going concern of the business that
is being conducted on the Demised Premises, or to any person or entity having,
in Lessor's reasonable judgment, a net worth greater than the net worth of
Lessee prior to such assignment, provided that said assignee assumes, in full,
the obligations of Lessee under this Lease and provided that Lessee shall remain
liable for all of its obligations to be performed or observed under this Lease.
For purposes of the foregoing definition, "control" (including "control by" and
"under common control with") shall mean ownership of not less than fifty percent
(50%) of each class of the authorized and outstanding stock of a corporation and
not less than fifty percent (50%) of all of the legal and equitable interests in
a partnership or other business entity.
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ARTICLE XVI - Defaults; Remedies
16.1. Defaults. If any of the following events shall occur (each, a "Default"
and collectively "Defaults":
(a) the failure by Lessee to make any payment of Rent or any other payment
required to be made by Lessee hereunder, as and when due, where such failure
shall continue for a period of ten (10) days after written notice from Lessor to
Lessee;
(b) the failure by Lessee to observe or perform any of the material
covenants, conditions or provisions of this Lease to be observed or performed by
Lessee, other than described in Paragraph 16.1 (a) above, where such failure
shall continue for a period of thirty (30) days after written notice thereof
from Lessor to Lessee specifying, in reasonable detail, how Lessee has failed to
perform: provided, however, that if Lessee's Default is such that more than
thirty (30) days are reasonably required for its cure, then Lessee shall not be
deemed to be in Default if Lessee commenced such cure within said 30-day period
and thereafter diligently prosecutes such cure to completion; and
(c) the filing by Lessee of a voluntary petition in bankruptcy or the
institution against Lessee of proceedings in bankruptcy which proceedings shall
not be stayed or discharged within ninety (90) days; or the appointment of a
receiver of Lessee's assets, which is not stayed or discharged within ninety
(90) days.
16.2. Remedies. In the event of any such Default, Lessor may at any time
thereafter, with or without notice or demand, and without limiting Lessor in the
exercise of any right or remedy which Lessor may have by reason of such default
or breach:
(a) terminate Lessee's right to possession of the Demised Premises by any
lawful means, in which case this Lease shall terminate, and Lessee shall
immediately surrender possession of the Demised Premises to Lessor. In such
event, Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of the Default including, but not limited to, the cost of
recovering possession of the Demised Premises; expenses of reletting including
costs of necessary renovation and alteration of the Premises, reasonable
attorneys' fees, and any real estate commission actually paid; and the worth at
the time of award by the court having jurisdiction thereof of the amount by
which the unpaid rent for the balance of the Term after the time of such award
exceeds the aggregate rental value of the Demised Premises for the same period;
or
(b) pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of Minnesota.
16.3. Lessor's Self-Help Remedy. If lessee shall fail, after thirty (30) days
notice from Lessor, to perform any of the covenants, terms or conditions
required to be performed by Lessee hereunder (except that in the event of an
emergency, the notice shall either be dispensed with or shortened as reasonably
required by the nature of the emergency), in addition to the provisions of this
Article 16, Lessor may do whatever is reasonably necessary for the performance
thereof for the account and at the expense of Lessee. In the event Lessor shall
pay any money by reason of said failure Lessee shall repay any such reasonable
sums so paid on its behalf together with Interest thereon which shall be deemed
Rent, and the same shall be payable within 30 days after presentation of the
request for payment, accompanied by Lessor's statement submitted to Lessee by
Lessor showing in all reasonable
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detail the expense of Lessor, why incurred, to whom payment was made and the
calculations of and supporting bills or records showing Lessor's expenditures.
16.4. Lessee's Self-Help Remedy. If Lessor shall fail, after thirty (30) days
notice from Lessee, to perform any of the covenants, terms or conditions
required to be performed by Lessor hereunder (except that in the event of an
emergency, the notice shall either be dispensed with or shortened as reasonably
required by the nature of the emergency), Lessee may do whatever is reasonably
necessary for the performance thereof for the account and at the expense of
Lessor. In the event Lessee shall pay any money by reason of said failure,
Lessor shall repay any such reasonable sums so paid on its behalf together with
Interest thereon, and the same shall be payable within 30 days after
presentation of the request for payment, accompanied by Lessee's statement
submitted to Lessor by Lessee showing in all reasonable detail the expense of
Lessee, why incurred, to whom payment was made and the calculations of and
supporting bills or records showing Lessee's expenditures. If Lessor shall fail
to reimburse Lessee within thirty (30) days after receipt of Lessee's request
for reimbursement for money expended by Lessee under this Paragraph 16.4, Lessee
may set-off against Rent, next becoming due to Lessor, such amount together with
interest at the Lease Interest Rate from the date expended until Lessee has
recouped the money due it under this Paragraph 16.4.
16.5. In the event Lessor elects to terminate this Lease as provided in
Paragraph 16.1 hereof, and this Lease is so terminated, and possession of the
Demised Premises is surrendered by Lessee in accordance with Article VIII
hereof, except as specified in Paragraph 16.2 hereof, neither Lessor nor Lessee
shall have any claim against the other for money owed or damages resulting from
a breach of this Lease, regardless of whether the claim accrued prior to or
subsequent to the termination of this Lease, except with respect to provisions
herein which expressly survive any termination or expiration of this Lease.
Except for the expressed exclusively of remedy in the event of a
termination of this Lease as hereinabove provided in the first paragraph of this
Paragraph 16.5, no remedy herein or otherwise conferred upon or reserved to
Lessor or Lessee shall be considered exclusive of any other remedy, but the same
shall be distinct, separate and cumulative and shall be in addition to every
other remedy given under this Lease, or now or hereafter existing at law or in
equity or by statute. Every power and remedy given by this Lease to Lessor, or
Lessee, may be exercised from time to time as often as occasion may arise, or as
may be deemed expedient. No delay or omission of Lessor or Lessee to exercise
any right or power arising from any default on the part of the other shall
impair any such right or power, or shall be construed to be a waiver of such
default or any other default or an acquiescence thereto. The consent or approval
by Lessor or Lessee to or of any act by the other requiring such consent or
approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar acts by Lessor or Lessee, as the case
may be.
16.6. Lessee Termination Right.
(a) Without limiting the provisions of Paragraph 16.5 and in addition to
all other remedies which the Lessee may have as stated elsewhere in this Lease,
at law or in equity, including the right to seek specific performance or
injunctive relief, Lessee shall have the right, but not the obligation, on
notice to lessor, to terminate this Lease if lessor shall fail to perform any of
the terms, covenants and obligations of lessor herein.
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(b) With respect to defaults as to which this Lease does not provide any
grace period or opportunity to cure, Lessor shall have thirty (30) days after
receipt of such notice from Lessee to cure the default giving rise to Lessee's
right to so terminate this Lease; provided, however, that if Lessors' default is
such that more than thirty (30) days are reasonably required for its cure, then
Lessor shall not be deemed to be in default if Lessor commenced such cure within
said 30-day period and thereafter diligently prosecutes such cure to completion.
(c) If Lessor cures the default within the period set forth in Paragraph
16.6(b), this Lease shall not terminate and shall continue in full force and
effect. If Lessor falls to cure the default within said cure period, Lessee
shall give notice to Lessor or Lessor's failure to cure the same and this Lease
shall terminate, as if by passage of time, on the date set forth in Lessee's
notice of termination.
ARTICLE XVII - Condemnation
If the Demised Premises or any portion thereof are taken under the power of
eminent domain, or sold under the threat of the exercise of said power (all of
which are herein called "Condemnation"), this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title to or
possession of the Demised Premises of such portion thereof, whichever first
occurs. If more than 40% of the floor area of the Demised Premises, or more than
40% of the paring area included in the Demised Premises and used by Lessee, is
taken by Condemnation (or such lesser percentage if the remaining parking area
is insufficient for the reasonable needs of Lessee or would cause a violation of
any Governmental Law), Lessee may, at Lessee's option, to be exercised in
writing within twenty (20) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within twenty (20) days
after the condemning authority shall have taken title to or possession of the
Demised Premises or any part thereof) terminate this Lease as of the later of
the date on which the condemning authority takes title to or possession of the
Demised Premises or any part thereof. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Demised Premises remaining, except that the Rent shall
be reduced from the date of the taking in a reasonable proportion based on the
amount of the Demised Premises so taken and the value or utility of such portion
so taken to the operation of Lessee's business on the Demised Premises. Any
dispute as to such reduction in rent may be submitted by either party to
arbitration in accordance with Article XX hereof. Any award for the taking of
all or any part of the Demised Premises under the power of eminent domain or any
payment made under threat of the exercise of such power shall be the property of
Lessor; provided, however, that Lessee shall be entitled to any award made as
compensation for diminution in value of the Lessee's leasehold estate, business
loss, moving expenses, loss of or damage to the Lessee's trade fixtures and
removable personal property. In the event that this Lease is not terminated by
reason of such Condemnation, Lessor shall, to the extent of an award received by
Lessor in connection with such Condemnation, repair any damage to the Demised
Premises caused by such condemnation except to the extent that Lessee has been
reimbursed therefor by the condemning authority.
Notwithstanding anything which may be to the contrary in this Article XVII,
in connection with any taking, Lessee shall be entitled to make a separate
claim, and to prove and receive an award for (a) the diminution in value of
Lessee's leasehold estate, (b) the value of Lessee's property to the extent the
same is taken, and (c) any moving allowance and other expenses permitted by law.
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ARTICLE XVIII. - INTENTIONALLY OMITTED
ARTICLE XIX - Purchase
19.1. If Lessor desire to see or otherwise transfer its interest in the Demised
Premises to a third party and has received a bona-fide offer with respect
thereto (the "Offer"), Lessor must first deliver to Lessee a notice (the
"Offering Notice") offering to sell the Demised Premises to Lessee at the price
and on the other terms and conditions contained in the Offer (the "Offering
Terms").A true, correct and complete copy of the offer shall be delivered along
with the Offering Notice. Lessee shall have 30 days after it receives the Offer
Notice to notify Lessor whether it will purchase the Demised Premises at the
Offering Terms. If Lessee notifies Lessor that it will purchase the Demised
Premises, Lessee and lessor shall thereafter with reasonable promptness, enter
into a contract for the sale of the Demised Premises at the Offering Terms and
on such other terms and conditions as are customary in contacts of sale for the
sale of property similar to the Demised Premises. If Lessee fails to notify
Lessor that it will purchase the Demised Premises within the time period
specified above, Lessor may sell the Demised Premises to such third party,
provided that if (x) the sales to such third party is closed more than one year
following the delivery of the Offer Notice to Lessee or (y) the sale to such
third party is made on terms more favorable to such third party than the
Offering Terms, then Lessor must again offer the Demised Premises to Lessee in
accordance with this Article XIX before any such third party can become
effective. The provisions of this, Article XIX shall apply to every Offer
received by Lessor with respect to the Demised Premises. Notwithstanding
anything to the contrary contained in this Article XIX, Xxxx Xxxxxxxxx shall
have the right, such right being personal to Xxxx Xxxxxxxxx, to transfer his
interest in the Demised Premises to his spouse or one or more of his children
without first offering to sell the Demised Premises to Lessee as provided
herein.
ARTICLE XX - Arbitration
20.1. Arbitration. In each case expressly specified in this Lease in which it
shall become necessary to resort to arbitration, such arbitration shall be
determined in the manner provided in this Article 20.
20.2. Arbitration Procedure. The party desiring such arbitration shall give
written notice to that effect to the other party and shall in such notice (the
"First Notice") appoint an impartial person of recognized competence in the
field involved, having not less than ten (10) years' experience in the county in
which the Demised Premises are located, as arbitrator on its behalf. Within ten
(10) days thereafter, the other party shall by written notice to the original
party appoint a second impartial person of recognized competence in such field,
having not less than ten (10) years' experience in the county in which the
Demised Premises are located, as arbitrator on behalf of such other party.
Within ten (10) days thereafter, the arbitrators thus appointed shall appoint a
third similarly qualified impartial person of recognized competence in such
field, and such three arbitrators shall as promptly as possible determine such
matter, provided, however, that:
(i) if the second arbitrator shall not have been appointed as aforesaid,
the first arbitrator shall proceed to determine such matter; and
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(ii) if the two arbitrators appointed by the parties shall be unable to
agree, within ten days after the appointment of the second arbitrator, upon the
appointment of a third arbitrator, they shall give written notice of such
failure to agree to the parties, and, if the parties fail to agree upon the
selection of such third arbitrator within ten days after the arbitrators
appointed by the parties give notice as aforesaid, then within five days
thereafter either of the parties upon written notice to the other party hereto
may request such appointment by the American Arbitration Association (or any
organization successor thereto), or in its absence, refusal, failure or
inability to act, may apply for a court appointment of such arbitrator.
20.3. Rules. The arbitration shall be conducted, to the extent consistent with
this Article XX, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto). The arbitrators
shall render their decision and award, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of the third
arbitrator. Such decision and award shall be in writing and counterpart copies
thereof shall be delivered to each of the parties. In rendering such decision
and award, the arbitrators shall not add to, subtract from or otherwise modify
the provisions of this Lease. Judgment may be had on the decision and award of
the arbitrators so rendered.
20.4. Fees. Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party and the fees and expenses of
the third arbitrator and all other expenses of the arbitration shall be borne by
the parties equally.
ARTICLE XXI - General Provisions
21.1. Estoppel Certificates.
(a) Lessee shall at any time upon not less than twenty (20) days prior
written notice from Lessor execute, acknowledge and deliver to Lessor or any
party designated by Lessor a statement in writing (i) certifying that this Lease
is unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the Rent and other charges are paid in
advance, if any, (ii) acknowledging, as of the date of the certificate, that, to
its actual knowledge, there are no unsecured Defaults or events which with the
giving of notice or the passage of time or both would constitute a Default or
specifying such Defaults or events, if any are claimed and (iii) any other
information reasonably requested by Lessor. Such statement shall be binding on
Lessee and may be relied upon by Lessor or any other party designated by Lessor
to whom such certificate is delivered.
(b) Lessor shall at any time upon not less than twenty (20) days prior
written notice from Lessee execute, acknowledge and deliver to Lessee or any
party designated by Lessee a statement in writing (1) certifying that this lease
is unmodified and in full force and effect (or, if modified, stating the nature
of such modification and certifying that this Lease, as so modified, is in full
force and effect) and the date to which the Rent and other charges are paid in
advance, if any, (ii) acknowledging, as of the date of the certificate, that, to
its actual knowledge, there are no unsecured Defaults or events which with the
giving of notice or the passage of time or both would constitute a Default or
specifying such Defaults or events, if any are claimed and (iii) any other
information reasonably requested by Lessee. Such statement shall be binding on
Lessor and may be
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relied upon by Lessee or any other party designated by Lessee to whom such
certificate is delivered.
21.2. Severability. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
21.3. Interest on Past-Due Obligations. Except as expressly provided herein, any
amount due hereunder to either Lessor or Lessee from the other party which is
not paid when due and any amount paid by Lessor or Lessee on behalf of the other
in accordance with the terms hereof shall bear interest from the date due or the
date paid, as applicable, at the lesser of (a) the greater of 2% in excess of
the prime or base rate of interest announced by Citibank N.A. at its principal
office in New York City, New York (the "Lease Interest Rate"), and (b) the
maximum rate of interest permitted by applicable law with respect to said
amounts. Payment of such interest shall not excuse or cure any Default or event
of default by Lessee under this Lease; provided, however, that interest shall
not be payable on late charges incurred by Lessee nor on any amounts upon which
late charges are paid by Lessee.
21.4. Captions. Article and paragraph captions are not a part hereof and are for
convenience of reference only.
21.5. Incorporation of Prior Agreements; Amendments. This Lease contains the
entire agreement and understanding of the parties hereto with respect to the
subject matter hereof. All prior agreements or understandings pertaining to the
subject matter hereof shall be of no force or effect. This Lease may only be
amended or modified in writing, signed by parties in interest at the time of
such amendment or modification.
21.6. Notices. Any notices required or permitted to be given hereunder shall be
sufficient if in writing and given at the addresses of Lessor and Lessee first
set forth above. Notices shall be sufficient if sent by certified mail, return
receipt requested, postage pre-paid; nationally recognized overnight courier
service; or by hand. Notices sent (i) by certified mail, return receipt
requested shall be deemed received three (3) days after deposit in a United
States mail box, postage prepaid, (ii) by nationally recognized overnight
courier service shall be deemed received on (1) business day after delivery to
such courier service; and (iii) by hand shall be deemed delivered upon receipt.
A copy of any notice of default sent to Lessor shall be sent to Xxx Xxxxxx,
Esq., 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000. A copy of any notice of default
sent to Lessee shall be sent to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxxx Xxxxxx, Esq. Any notice to Lessee shall
be addressed to Xx. Xx Xxxxxx, 000 Xxx Xxxxx Xxxx, Xxxxxxxx, XX 00000.
21.7. Waivers. No waiver by either party of any term or provision hereof shall
be deemed a waiver of any other provision hereof or of any subsequent breach by
the other of the same or any of the provision. Lessor's consent to or approval
of any act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of Rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of
any provision hereof, other than the failure of Lessee to pay the particular
Rent so accepted, regardless of Lessor's knowledge of such preceding breach at
the time of acceptance of such Rent.
21.8. Recording. Lessee shall not record this Lease without Lessor's prior
written consent. The parties hereto shall contemporaneously herewith execute and
record, at Lessee's expense, a Memorandum of lease in the form attached hereto
as Exhibit B.
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21.9. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
21.10. Binding Effect; Choice of Law. This Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns,
heirs, distributees, executors, administrators and personal representatives.
This Lease shall be governed by the laws of the State in which the Demised
Premises is located.
21.11. Subordination. (a) Provided Lessor obtains and delivers to Lessee a
subordination, nondisturbance and attornment agreement in form and substance
acceptable to Lessee (which provides, among other things, that so long as the
Lessee is not in default beyond applicable notice and grace periods under this
Lease, its possession of the Demised Premises in accordance with the Terms of
this Lease shall not be distributed) (the "SNDA") from the holder of any present
or future mortgage or deed of trust encumbering the Demised Premises (a
"Mortgagee"), then this Lease shall be subject and subordinate to the lien of
the mortgage or deed of trust, specifically referenced in such SNDA.
(b) If at any time a Mortgagee or any party claiming by or through a
Mortgagee shall succeed to the rights of Lessor as Lessor under this Lease,
whether through foreclosure action, assignment or deed in lieu of foreclosure or
otherwise (a "Successor Lessor"), at the request of such Successor Lessor, and
upon the written agreement of such Successor Lessor to accept Lessee's
attornment, Lessee shall attorn to and recognize such Successor lessor as
Lessee's lessor under this Lease. In confirmation of such attornment, Lessee
shall promptly execute, acknowledge and deliver any instrument that Lessor or
such Successor Lessor requests to evidence such attornment. Upon any such
attornment, this Lease shall continue in full force and effect as, or as if it
were, a direct lease between such Successor Lessor and Lessee upon all of the
then executory terms, conditions and covenants as are set forth in this Lease
and which shall be applicable after such attornment, except that the successor
Lessor shall not be:
(i) liable for any prior act or mission of Lessor;
(ii) subject to any offsets or defenses which Lessee may have against
Lessor;
(iii) bound by any payment of Rent which Lessee might have made to
Lessor for more than one month in advance of the date the same was due
under this Lease or bound by any security or other deposits not actually
received by such Successor Lessor;
(iv) bound by any obligation to make any payment to Lessee, or provide
any services or perform any repairs, maintenance or restoration provided
for under this Lease to be performed before the date that the Successor
Lessor becomes the Lessor of Lessee;
(v) bound by any obligation to construct any improvements on the
Demised Premises; or
(vi) bound by any modification of this Lease made without the written
consent of such Successor Lessor or the Mortgagee through which such
Successor Lessor is claiming its interest, where such consent is required
under the terms of the documents evidencing its loan to Lessor, after
written notice has been given to Lessee of the existence of such Successor
Lessor or Mortgagee.
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(vii) If any act or omission of Lessor would give Lessee the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Lessee shall not exercise
such right until (a) Lessee gives notice of such act or omission to Lessor
and to each Mortgagee whose name and address were previously furnished to
Lessee and (b) a reasonable period of time when such Mortgagee become
entitled under its Mortgage to remedy same (which reasonable period shall
in no event be less than the period to which Lessor is entitled under this
Lease or otherwise, after similar notice, to effect such remedy or be
longer than 45 days after notice from Lessee to Mortgagee of such act or
omission).
21.12. Lessor's Access. Subject to Lessee's reasonable security regulations,
Lessor and Lessor's agents shall have the right to enter the Demised Premises at
reasonable times upon reasonable notice for the purpose of inspecting the same,
showing the same to prospective purchasers, Lenders, or Lessees, and making such
alterations, repairs, improvements or additions to the Demised Premises as
Lessor deems necessary or desirable. Any time during the last one hundred eighty
(180) days of the Term, Lessor may place on or about the Demised Premises any
ordinary "For Lease" sign.
21.13. Consents. Wherever in this Lease the consent of one party is required to
an act of the other party such consent shall not be unreasonably withheld,
conditioned or delayed.
21.14. Quiet Possession. Upon Lessee paying the Rent reserved hereunder and
observing and performing all of the material covenants, conditions and
provisions on Lessee's part to be observed and performed hereunder, Lessee shall
have quiet possession of the Demised Premises for the entire Term hereof subject
to all of the provisions of this Lease.
21.15. Signage. During the period in which Lessee occupies the Demised Premises,
Lessee shall have the right to place signs on the Demised Premises. All signs
erected or placed on the Demised Premises by Lessee shall comply with all
applicable Governmental Laws.
21.16. Brokers. Lessor and Lessee each covenant, warrant and represent to the
other that no broker was instrumental in bringing about or consummating this
Lease and that neither Lessor nor Lessee has had dealings with any broker or
other person concerning the leasing of the Demised Premises. Lessor and Lessee
shall each identify and hold the other harmless against and from any claims for
any brokerage commissions or fees, and all costs, expense and liabilities in
connection therewith, including, without limitation, attorneys' fees and expense
(a) in connection with such claim if any broker or other person claims to have
had dealings with the indemnifying party and/or (b) in connection with the
enforcement of a party's rights under this Paragraph 21.16.
21.17. Indemnities.
(a) Lessor shall indemnify, defend and hold harmless Lessee, its officers,
agents, employees, parents, subsidiaries and affiliate organizations, from and
against any claims, suites, loss, costs, (including attorneys' fees and
disbursements and cleanup cost), damages, expenses and liabilities, including
claims by reason of property damage or personal injury (including death) of
whatsoever nature against them individually or collectively (collectively
referred to as "Claims") arising out of the ownership or maintenance of the
Demised Premises by Lessor (to the extent such maintenance by Lessor is required
hereunder) or to the extent the same results from Lessor's actions or in actions
arising from any acts, incidents, events, occurrences, or omissions which
occurred or took place prior to the
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effective date of this Lease including, but not limited to, those related to
ownership, tenancy, possession, construction, operation, or use by Lessor or any
other party of the Demised Premises or which result in pollution, contamination
or seepage and all maters relating to environmental waste disposal laws,
regulations, or issues, other than Claims relating to the gross negligence or
willful misconduct of Lessee, its officers, agents, employees, parents,
subsidiaries and affiliate organizations. This provision shall survive any
termination or expiration of this Lease.
(b) Lessee shall indemnify, defend and hold harmless Lessor, its officers,
agents, employees, parent, subsidiaries and affiliate organizations, from and
against any and all Claims arising out of the use or maintenance of the Demised
Premises by Lessee, its officers, agents, employees, parents, subsidiaries and
affiliate organizations and the exercise by Lessee of enjoyment of the
privileges herein granted or by reason of any act or omission of Lessee, its
officers, agents, employees, parents, subsidiaries and affiliate organizations,
from or in connection with this Lease, other than Claims arising from the gross
negligence or willful misconduct of Lessor and other Lessees of the Demised
Premises and their respective officers, agents, employees, parents, subsidiaries
and affiliate organizations. This provision shall survive any termination or
expiration of this Lease.
21.18. Unavoidable Delays. In the event of any Unavoidable Delays (hereinafter
defined) under this Lease, the time of performance of the covenants and
obligations under this Lease in question shall automatically be extended for a
period of time equal to the aggregate period of the Unavoidable Delays.
"Unavoidable Delays" shall mean delays due to (i) strikes, lockouts, acts of
God, governmental restrictions or peremptions, enemy action, riot, civil
commotion, storms, fire, floods, earthquakes, or the inability to obtain labor
or materials due to governmental restrictions, (ii) the wrongful failure of
either party hereto to grant any consent or approval to the other party hereto,
(iii) fire or other casualty or other causes beyond the control of the parties
hereto and (iv) the breach or default of either party hereto in the performance
of its obligations under this Lease which directly prevents the other party from
proceeding to perform its obligations hereunder.
21.19. Authorization. Lessor and Lessee each represents to the other that all
necessary authorizations, consents and approvals required in connection with the
execution and delivery of this Lease have been obtained and that the entering
into of this Lease does not violate the organizational documents of such party
or any agreement, court order or law to which such party is subject.
21.20. No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Lessor and
Lessee, or to create any relationship between the parties other than that of a
lessor and a lessee.
21.21. Release of Liabilily. Lessor hereby release Lessee from all liabilities
arising out of loss or damage to the Demised Premises (except any damage to
Lessee's leasehold improvements which Lessee is required to insure under the
terms of this Lease) caused by perils covered under fire and extended coverage
insurance policies or all risk property insurance.
21.22. Mortgage Defaults. If Lessor shall default under any mortgage encumbering
its interest in the Demised Premises, Lessee shall have the night to cure such
default and shall be entitled to offset the amounts paid by Lessee to so cure
such default against any amounts due to Lessor hereunder. Lessor shall promptly
notify Lessee of any default by Lessor under any such Mortgage and shall
promptly deliver a copy to Lessee of any notices sent by either Lessor or the
Mortgagee under such Mortgage.
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21.23. Ownership of Demised Premises. Lessor represents and warrants to Lessee
that Lessor is the fee owner of the Demised Premises and that Exhibit A
constitutes a true, correct and accurate description of the Real Property.
The parties hereto have executed this Lease as of the date set forth above.
LESSOR:
/s/ Xxxx Xxxxxxxxx /s/ Xxxxx Xxxxxxxxx
-------------------------- ---------------------------
Xxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
LESSEE:
HAMPSHIRE DESIGNERS, INC.
By:/s/ H. Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx Xx.
-------------------------- -------------------------------
Name: H. Xxxxxx Xxxxxx Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chief Operating Officer Title: Vice President - Finance
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Exhbit (10)(T)(1)
----------------
THIRD AMENDMENT TO CREDIT AGREEMENT AND GUARANTY
This Third Amendment to the Credit Agreement and Guaranty ("Third
Amendment") dated as of June 22, 1999 amends the Credit Agreement and Guaranty
(the "Credit Agreement") dated as of May 28, 1998, as amended from time to time,
by and among Hampshire Group, Limited ("Borrower"), Hampshire Designers, Inc.,
Hampshire Investments, Limited, Glamourette Fashion Xxxxx, Inc., San Francisco
Knitworks, Inc. and Segue (America), Limited (individually a "Guarantor" and
collectively the "Guarantors"), The Chase Manhattan Bank, Republic National Bank
of New York and NationsBank, N.A. (collectively the "Banks") and The Chase
Manhattan Bank ("Agent").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors, the Banks and Agent are parties to
the Credit Agreement, and
WHEREAS, Borrower, the Guarantors, the Banks and Agent desire to amend the
Credit Agreement as set forth herein;
NOW THEREFORE, in consideration of the promises and the mutual agreements
contained herein, the sufficiency of which is hereby acknowledged, and intending
to be legally bound, the parties agree that the Credit Agreement shall be
amended as follows:
1. All capitalized terms not otherwise defined herein shall the meaning
given such terms in the Credit Agreement.
2. The definition of Revolving Credit Commitment in Section 1.01 of the
Credit Agreement shall be amended in its entirety by substituting the following:
"'Revolving Credit Commitment' means the commitment of the Banks to lend
pursuant to their Pro Rata Share, Fifty-Five Million ($55,000,000.00)
Dollars to the Borrower pursuant to the terms of this Agreement"
3. The definition of Revolving Credit Termination Date in Section 1.01 of
the Credit Agreement shall be amended in its entirety by substituting the
following:
"'Revolving Credit Termination Date' means May 24, 2000 unless earlier
extended by Borrower and Banks in accordance with the letter in form of
Exhibit D annexed hereto."
4. The definition of Pro Rata Share in Section 1.01 of the Credit Agreement
shall be amended by adding to said definition the following paragraph and chart
and in no other way shall it be amended:
As of June 22, 1999, the amount of each Bank's revolving credit commitment
and its pro rata share of such revolving credit commitment is as follows:
"Bank Commitment Pro Rata Share
---------- ---------------------- -------------------
Chase $22,000,000 40%
NationsBank $18,150,000 33%
Republic $14,850,000 27%"
5. Section 4.01 of the Credit Agreement shall be amended by substituting
the following for the chart after the colon in that section and in no other way
shall it be amended:
"Bank Pro Rata Share
--------------- -----------------
NationsBank 33%
Republic 27%"
6. Section 9.01(5) of the Credit Agreement shall be amended in its entirety
by substituting the following:
"(5) Unsecured Debt owing to the parties listed on Schedule 9.01 or to such
other institutional lenders, from time to time, approved by the Agent, in
writing prior to the making of any loan, advance or issuing a letter of
credit, which Agent's approval shall not be unreasonably withheld and will
be based on the financial strength of such lender at the time of the
request in an aggregate amount not to exceed $10,965,000 at any one time
outstanding, provided however that the Borrower and each Guarantor shall
not incur loans and advances in an amount exceeding $5,000,000."
7. The representations and warranties contained in the Credit Agreement are
correct, on and as of the date of this Third Amendment as though made on and as
of the date of the Third Amendment (except to the extent such representations or
warranties expressly relate to an earlier date) and no Event of Default has
occurred and is continuing on and as of the date of this Third Amendment, except
those that have been waived, if any, by the Banks and the Agent in writing.
8. Simultaneously with the execution of this Agreement, Borrower shall
execute promissory notes to each of the Banks to evidence the Revolving Credit
Loans, as amended.
9. Except as herein specifically provided, no other amendment, changes, or
modifications to the Credit Agreement or any of the Loan Documents are intended
or implied.
10. Borrower and each Guarantor confirms and agrees that the Credit
Agreement, as hereby amended, and each Loan Document to which Borrower and each
Guarantor is a party is, and shall continue to be, in full force and effect and
is hereby ratified and confirmed in all respects.
11. This Third Amendment shall be governed by and construed in accordance
with the internal laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed by the respective officers hereunder duly authorized as of the day
and year first above written.
HAMPSHIRE GROUP, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
HAMPSHIRE DESIGNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
HAMPSHIRE INVESTMENTS LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
GLAMOURETTE FASHION XXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
SAN FRANCISCO KNITWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President
SEGUE (AMERICA) LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Title:
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Title:
REPUBLIC NATIONAL BANK OF NEW YORK
By: /s/ Xxxxxx Commander
-----------------------------
Title:
NATIONSBANK N.A.
By: /s/ Xxxxxxx Xxxxxxxx
-------------------------------
Title: Sr. Vice President
PROMISSORY NOTE
$22,000,000.00 June 22, 1999
HAMPSHIRE GROUP, LIMITED (the "Borrower"), a corporation organized under
the laws of Delaware, for value received, hereby promises to pay to the order of
THE CHASE MANHATTAN BANK (the "Lender") at its office at 000 Xxxx Xxxxxx, Xxx
Xxxx, XX 00000, the principal sum of Twenty Two Million ($22,000,000.00) Dollars
or, if less, the amount loaned by the Lender to the Borrower pursuant to the
Credit Agreement and Guaranty referred to below, in lawful money of the United
States of America and in immediately available funds, on the date(s) and in the
manner provided in said Credit Agreement and Guaranty. The Borrower also
promises to pay interest on the unpaid principal balance hereof, for the period
such balance is outstanding at said office in like money, at the rates of
interest as provided in the Credit Agreement described below, on the date(s) and
in the manner provided in said Credit Agreement and Guaranty.
The date and amount of each type of Loan made by the Lender to the Borrower
under the Credit Agreement referred below, and each payment of principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note (or, at the discretion of the Lender, at any other time), endorsed
by the Lender on the schedule attached hereto or any continuation thereof and
all such notations by Lender shall be conclusive on Borrower absent manifest
error.
This the Note referred to in that certain Credit Agreement and Guaranty (as
amended from time to time the "Credit Agreement") dated as of May 28, 1998,
among the Borrower, The Chase Manhattan Bank, Republic National Bank of New
York, NationsBank, N.A. and The Chase Manhattan Bank, as Agent and the
Guarantors described therein and evidences the Loans made by the Lender
thereunder. All terms not defined herein shall have the meanings given to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default specified therein.
The Borrower waives presentment, notice of dishonor, protest and any other
notice or formality with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
HAMPSHIRE GROUP, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
EXHIBIT A
Schedule to Promissory Note
Date Amount Interest Interest Amount Total Notation
of Loan Rate Period of Loan Made By
Payment Balance
PROMISSORY NOTE
$18,150,000.00 June 22, 1999
HAMPSHIRE GROUP, LIMITED (the "Borrower"), a corporation organized under
the laws of Delaware, for value received, hereby promises to pay to- the order
of NATIONSBANK, N.A. (the "Lender") at its office at 0000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000 the principal sum of Eighteen Million, One
Hundred Fifty Thousand ($18,150,000.00) Dollars or, if less, the amount loaned
by the Lender to the Borrower pursuant to the Credit Agreement and Guaranty
referred to below, in lawful money of the United States of America and in
immediately available funds, on the date(s) and in the manner provided in said
Credit Agreement and Guaranty. The Borrower also promises to pay interest on the
unpaid principal balance hereof, for the period such balance is outstanding at
said office in like money, at the rates of interest as provided in the Credit
Agreement described below, on the date(s) and in the manner provided in said
Credit Agreement and Guaranty.
The date and amount of each type of Loan made by the Lender to the Borrower
under the Credit Agreement referred below, and each payment of principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note (or, at the discretion of the Lender, at any other time), endorsed
by the Lender on the schedule attached hereto or any continuation thereof and
all such notations by Lender shall be conclusive on Borrower absent manifest
error.
This the Note referred to in that certain Credit Agreement and Guaranty (as
amended from time to time the "Credit Agreement") dated as of May 28, 1998,
among the Borrower, The Chase Manhattan Bank, Republic National Bank of New
York, NationsBank, N.A. and The Chase Manhattan Bank, as Agent and the
Guarantors described therein and evidences the Loans made by the Lender
thereunder. All terms not defined herein shall have the meanings given to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default specified therein.
The Borrower waives presentment, notice of dishonor, protest and any other
notice or formality with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
HAMPSHIRE GROUP, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
EXHIBIT A
Schedule to Promissory Note
Date Amount Interest Interest Amount Total Notation
of Loan Rate Period of Loan Made By
Payment Balance
PROMISSORY NOTE
$14,850,000.00 June 22, 1999
HAMPSHIRE GROUP, LIMITED (the "Borrower"), a corporation organized under
the laws of Delaware, for value received, hereby promises to pay to the order of
REPUBLIC NATIONAL BANK OF NEW YORK (the "Lender") at its office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, XX 00000, the principal sum of Fourteen Million, Eight Hundred
Fifty Thousand ($14,850,000.00) Dollars or, if less, the amount loaned by the
Lender to the Borrower pursuant to the Credit Agreement and Guaranty referred to
below, in lawful money of the United States of America and in immediately
available funds, on the date(s) and in the manner provided in said Credit
Agreement and Guaranty. The Borrower also promises to pay interest on the unpaid
principal balance hereof, for the period such balance is outstanding at said
office in like money, at the rates of interest as provided in the Credit
Agreement described below, on the date(s) and in the manner provided in said
Credit Agreement and Guaranty.
The date and amount of each type of Loan made by the Lender to the Borrower
under the Credit Agreement referred below, and each payment of principal
thereof, shall be recorded by the Lender on its books and, prior to any transfer
of this Note (or, at the discretion of the Lender, at any other time), endorsed
by the Lender on the schedule attached hereto or any continuation thereof and
all such notations by Lender shall be conclusive on Borrower absent manifest
error.
This the Note referred to in that certain Credit Agreement and Guaranty (as
amended from time to time the "Credit Agreement") dated as of May 28, 1998,
among the Borrower, The Chase Manhattan Bank, Republic National Bank of New
York, NationsBank, N.A. and The Chase Manhattan Bank, as Agent and the
Guarantors described therein and evidences the Loans made by the Lender
thereunder. All terms not defined herein shall have the meanings given to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default specified therein.
The Borrower waives presentment, notice of dishonor, protest and any other
notice or formality with respect to this Note.
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
HAMPSHIRE GROUP, LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President
EXHIBIT A
Schedule to Promissory Note
Date Amount Interest Interest Amount Total Notation
of Loan Rate Period of Loan Made By
Payment Balance
