Shared Facilities Agreement - Express Inc. and Abercrombie & Fitch Co.
SHARED FACILITIES AGREEMENT
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This SHARED FACILITIES AGREEMENT is entered into as of September 27, 1996
(this "Agreement"), by and between EXPRESS, INC., a Delaware corporation
("Sublessor"), and ABERCROMBIE & FITCH CO., a Delaware corporation
("Sublessee").
WITNESSETH:
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WHEREAS, Sublessor is a tenant under each of the lease agreements described
on Schedule 1 attached hereto and made a part hereof;
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WHEREAS, prior to the date hereof, Sublessee has occupied all or a portion
of the premises leased by Sublessor under such lease agreements without a
written agreement; and
WHEREAS, Sublessor and Sublessee desire to evidence their agreement
relating to such shared occupancy upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants set forth herein, the
parties covenant and agree as follows
1. Definitions. The following are the defined terms used in this
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Agreement:
"Affiliate" means a corporation, partnership or other business entity,
which, directly or indirectly, controls, is controlled by, or is under common
control with, another corporation, partnership or other business entity. If more
than 50 percent of the voting stock of a corporation shall be owned by another
corporation or by a partnership or other business entity, the corporation whose
stock is so owned shall be deemed to be controlled by the corporation,
partnership or business entity owning such stock.
"Lease Term" means the initial term of a Prime Lease as it may be extended
by Sublessor pursuant to a renewal or extension option therein.
"Leased Premises" means the premises in which Sublessor has a leasehold
interest under a Prime Lease or all such premises collectively, as the context
may require.
"Lessor" means the landlord under a Prime Lease.
"Prime Lease" means each of the leases described on Schedule 1; all such
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leases are collectively referred to as the "Prime Leases". The parties may,
after the date hereof, designate any other lease as a Prime Lease subject to the
terms of this Agreement, by
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replacing Schedule 1 with a new Schedule 1, which describes such other lease and
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which is initialed by both parties.
"Space Size Ratios" means, in respect of any Leased Premises and the
Subleased Premises forming a part thereof, the ratio that the size of the
Subleased Premises bears to the size of the entire Leased Premises and the ratio
that the size of the Leased Premises exclusive of the Subleased Premises bears
to the size of the entire Leased Premises, with all such sizes being as
reflected on Schedule 1.
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"Subleased Premises" means the portion of the Leased Premises occupied by
Sublessee as described on Schedule 1, individually or collectively, as the
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context may require.
2. Sublease. Sublessor, in consideration of the covenants and agreements
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to be performed by Sublessee and upon the terms and conditions hereinafter
stated, does hereby sublease, demise and let unto Sublessee, and Sublessee does
hereby sublease from Sublessor, each of the Subleased Premises upon the terms
and conditions set forth below.
3. Priority of Prime Lease. This Agreement, as it relates to the
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Subleased Premises, is expressly subject and subordinate to the applicable Prime
Lease and, subject to the modifications set forth in this Agreement, all the
terms, conditions and covenants therein contained. Except to the extent
otherwise expressly set forth in this Agreement, in which event the terms of
this Agreement shall prevail, all the terms, covenants and conditions of a Prime
Lease shall be applicable to this Agreement with respect to the corresponding
Subleased Premises with the same force and effect as if Sublessor were the
landlord under the Prime Lease and Sublessee were the tenant thereunder and the
provisions of the Prime Lease are incorporated herein by reference with the same
force and effect as if they were fully set forth herein (except to the extent
that they are modified by the terms of this Agreement), and Sublessee shall
assume and fully perform and discharge, with regard to the Subleased Premises,
all the obligations of Sublessor as tenant under the Prime Lease during the
Lease Term. In the event of any breach by Sublessee of any term, covenant or
condition of this Agreement, Sublessor shall have all the rights against
Sublessee as would be available to the Lessor against the Sublessor as tenant
under the applicable Prime Lease if such breach were by Sublessor thereunder.
4. Term. The term of the sublease granted herein shall be coextensive,
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less one day, with the Lease Term of the applicable Prime Lease, unless sooner
terminated as provided herein. Sublessee acknowledges that the Lease Term may
include renewal or extension options exercisable by Sublessor and that the
exercise of any such option shall be determined by Sublessor in its sole and
absolute discretion. Sublessor will notify Sublessee in the event Sublessor has
determined not to exercise any renewal or extension option and will offer to
assign the Prime Lease, to the extent permitted under such Prime Lease or by the
Lessor, or otherwise to cooperate with Sublessee to allow Sublessee, in its
discretion, to exercise any such option with respect to the Leased Premises, so
long as Sublessor has no responsibility or liability under the Prime Lease after
expiration of the Lease Term (without consideration of such option)
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5. Utilities/Other Services. (a) Except as otherwise specified herein, the
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only services, utilities or rights to which Sublessee is entitled under this
Agreement with respect to the Subleased Premises are those to which Sublessor is
entitled from the Lessor under the applicable Prime Lease and Sublessor shall
have no liability to Sublessee for the failure to provide such services,
utilities or rights unless such failure to provide same is the result of some
act or omission of Sublessor under the Prime Lease. In addition, Sublessee shall
not be entitled to utility services greater than that which it was receiving (if
Sublessee was in possession) prior to the date hereof.
(b) If any utility services to the Leased Premises are not separately
metered as between the Subleased Premises and the remainder of the Leased
Premises, the accounts shall be in the name of Sublessor, or the Lessor if
required by the Prime Lease, and the payments to the utility companies or the
Lessor, as the case may be, shall be shared prorata by Sublessee and Sublessor
based on the Space Size Ratios, and without regard to consumption. Sublessee
shall pay its share of same to Sublessor on or before the later of (i) five
business days after Sublessee receives an invoice (including a copy of the
Lessor's invoice, if any) for same or (ii) the date such payment is due and
payable to the utility company or the Lessor, as the case may be
6. Monetary Obligations. (a) All monetary obligations of Sublessor under a
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Prime Lease, other than percentage rent, shall be shared prorata by Sublessee
and Sublessor based on the Space Size Ratios. Any percentage rent payable under
a Prime Lease shall be prorated by Sublessor and Sublessee based solely on the
sales made by each party during the period for which such percentage rent is
payable. Each party's proportionate share of percentage rent payable under a
Prime Lease shall be equal to the ratio that such party's sales during the
period for which such percentage rent is payable bears to the aggregate of such
party's sales and the other party's sales for such period. For purposes of such
proration, the percentage rent breakpoint shall not be prorated based on the
size of the Subleased Premises or by any other method.
(b) Sublessee shall pay its prorata share of such monetary obligations to
Sublessor on or before the later of (i) five business days after Sublessee's
receipt of written notice of such obligation (if the obligation is a recurring
one, only one notice that specifies the due dates shall be required) and a copy
of the Lessor's invoice, if any, or (ii) the date Sublessor is required to pay
such monetary obligations to the Lessor. The monetary obligations referred to in
this Section 6 shall include, without limitation, base, fixed and minimum rent,
percentage rent, common area maintenance charges, enclosed mall maintenance
charges, real estate taxes and assessments, insurance charges, merchants
association dues, marketing, advertising and other promotional fund
contributions and HVAC and chilled water charges.
7. Non-Monetary Obligations. In the event any non-monetary obligation of
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the tenant under a Prime Lease, other than those for which specific provision is
made in this Agreement, is not attributable to the Subleased Premises
exclusively or the remainder of the Leased Premises exclusively (e.g., the
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maintenance of insurance or the repair of any HVAC unit serving the entire
Leased Premises), such obligation shall be performed by Sublessor and the cost
of performing same shall be shared prorata by Sublessee and Sublessor based on
the Space Size Ratios, unless the parties have
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agreed to a different cost-sharing arrangement under a separate written
agreement (e g, the "Services Agreement" between The Limited, Inc., and
Abercrombie & Fitch Co.)
8. Tenant Inducements. The parties acknowledge that all monetary tenant
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inducements arising prior to the date hereof, including, without limitation,
tenant improvement allowances and moving allowances, under a Prime Lease have
been or will be received by Sublessor for its sole and exclusive benefit, unless
the parties have made prior arrangements (through course of conduct or written
or oral agreement) to share any such monetary inducement. All monetary
inducements arising after the date hereof, including, without limitation, tenant
improvement allowances and moving allowances, under a Prime Lease shall be
shared prorata by Sublessee and Sublessor based on the Space Size Ratios, unless
otherwise agreed by the parties
9. Termination Rights. All rights of the tenant to terminate a Prime
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Lease, including, without limitation, any "kickout" or "cotenancy" rights or
rights to terminate in the event of a casualty or condemnation or default of the
Lessor, shall belong exclusively to Sublessor and may be exercised by Sublessor
in its sole and absolute discretion without liability to Sublessee; provided,
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however, Sublessor will notify Sublessee of its intent to terminate a Prime
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Lease and will offer to assign the Prime Lease to Sublessee, to the extent
permitted under such Prime Lease or by the Lessor, so long as Sublessor has no
responsibility or liability under the Prime Lease after such assignment.
Sublessee acknowledges that in the event of any such termination, this Agreement
shall terminate with respect to such Prime Lease.
10. Access; Alterations. (a) The parties acknowledge that certain of the
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Leased Premises may be configured such that Sublessor may need access to the
Subleased Premises and Sublessee may need access to the remainder of the Leased
Premises for purposes of maintaining or making adjustments or repairs to
facilities (e.g., pipes, conduits, electrical and telecommunication wiring,
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etc.) serving such party's premises or for purposes of using restroom facilities
or stock or storage rooms or for such other reasonable purposes. The parties
hereby grant each other access through their respective premises for such
purposes, provided that the party exercising such right does not unreasonably
interfere with the business of the other party.
(b) No party may make any alterations to its premises that would adversely
affect the other party's business or use or occupancy of its premises, including
any alterations that would (i) reduce the availability of utilities, HVAC or
other services to the other party's premises, (ii) impair access to the other
party's premises or (iii) cause the other party's premises not to comply with
applicable law
11. Assignment and Subletting. (a) Sublessee may not assign this Agreement,
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or allow it to be assigned, in whole or in part, by operation of law or
otherwise or mortgage or pledge the same, or sublet the Subleased Premises, or
any part thereof (any of the foregoing transactions is herein referred to as a
"Transfer"), without the prior written consent of Sublessor, which consent may
be withheld by Sublessor in its sole and absolute discretion without regard to
standards of reasonableness. Notwithstanding the foregoing, but subject to the
terms of the Prime Lease, Sublessee may effect a Transfer, without the consent
of Sublessor, to an Affiliate of Sublessee or Sublessor,
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provided that if at any time after such permitted Transfer the transferee is no
longer an Affiliate of either Sublessor or Sublessee, the event terminating such
affiliation shall be deemed a Transfer subject to Sublessor's consent pursuant
to the preceding sentence.
(b) In the event of any Transfer, whether or not Sublessor grants its
consent to such Transfer or has the right to withhold its consent to such
Transfer, Sublessee shall remain fully liable to perform its duties under this
Agreement following a Transfer. If Sublessee enters into a Transfer, Sublessee
shall pay Sublessor any and all consideration received by Sublessee in such
transaction (as rent or inducement for such Transfer) in excess of the total
sums that Sublessee is obligated to pay Sublessor under this Agreement, or the
prorated portion thereof if only a portion of the Subleased Premises is
Transferred, as additional rent under this Agreement without affecting or
reducing any other obligations of Sublessee hereunder. Sublessee acknowledges
that the foregoing is intended to preclude Sublessee from obtaining a profit
from a Transfer.
(c) Any proposed Transfer shall also be subject to the restrictions and
requirements set forth in the Prime Lease. Any purported Transfer consummated in
violation of the provisions of this Section 11 shall be null and void and of no
force or effect.
(d) In the event Sublessor intends to assign a Prime Lease or further
sublet the Leased Premises exclusive of the Subleased Premises to a person or
entity that is not an Affiliate of Sublessor, Sublessor shall give Sublessee
written notice of such proposed assignment or sublease at least 60 days prior to
the effective date of such assignment or sublease, and Sublessee shall have the
right to terminate this Agreement with respect to such Prime Lease by giving
written notice thereof to Sublessor prior to such effective date. Sublessee's
termination notice shall specify the termination's effective date, which shall
be no later than 60 days after the effective date of the Sublessor's assignment
or sublease. If Sublessee does not elect to terminate this Agreement with
respect to such Prime Lease or such assignment or sublease is to an Affiliate of
Sublessor, the following shall be conditions precedent to the effectiveness of
such assignment or sublease: (i) in the case of an assignment, Sublessor shall
cause the assignee to assume and be bound by the terms of this Agreement, but
only to the extent such terms apply to such Prime Lease, and, notwithstanding
such assignment, Sublessor shall not be released from and shall remain fully
liable under the terms of this Agreement with respect to such Prime Lease; and
(ii) in the case of a sublease, Sublessor shall cause the sublessee to
acknowledge the rights of Sublessee under this Agreement with respect to the
Subleased Premises and the remainder of the Leased Premises and agree that its
possession is subject to such rights of Sublessee.
12. No Default Under Prime Lease. (a) Sublessee shall do nothing nor permit
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anything to be done that would cause the Prime Lease to be terminated or
forfeited because of any right of termination or forfeiture reserved or vested
in the Lessor under the Prime Lease or that would cause Sublessor to be in
default under the Prime Lease or to pay damages or any penalty (e.g., late
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charges). Except as may be due to the default by Sublessor under the Prime Lease
or except as may be due to the negligence or willful misconduct of Sublessor,
Sublessee will defend, indemnify and hold harmless Sublessor from and against
all claims, damages, losses, liabilities, obligations and costs (including,
without limitation, reasonable attorney's fees) of any kind arising from any
breach or default on the
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part of Sublessee by reason of which the Prime Lease may be terminated or
forfeited or Sublessor found to be in default thereunder or the Lessor may be
entitled to damages or a penalty.
(b) Sublessor shall do nothing nor permit anything to be done that would
cause the Prime Lease to be terminated or forfeited because of any right of
termination or forfeiture reserved or vested in the Lessor under the Prime Lease
or that would cause Sublessor to be in default under the Prime Lease or to pay
damages or any penalty (e.g., late charges). Except as may be due to the default
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by Sublessee under this Agreement or except as may be due to the negligence or
willful misconduct of Sublessee, Sublessor will defend, indemnify and hold
harmless Sublessee from and against all claims, damages, losses, liabilities,
obligations and costs (including, without limitation, reasonable attorney's
fees) of any kind arising from any breach or default on the part of Sublessor by
reason of which the Prime Lease may be terminated or forfeited or the Lessor may
be entitled to damages or a penalty
13. Familiaritv with Prime Lease. Sublessee represents and acknowledges
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that it is familiar with the terms of the Prime Leases.
14. Consent/Approvals. In the event Sublessee seeks a consent or approval
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from Sublessor with respect to any matter to which such consent or approval is
required under this Agreement or the Prime Lease, then (i) the time period, if
any, in which Sublessor shall be required to respond to Sublessee shall be
extended by ten days after the expiration of any time period in which the Lessor
has to respond under the Prime Lease and (ii) the denial of such consent or
approval by the Lessor shall be conclusive and binding on Sublessee; provided,
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however, that where consent or approval of the Lessor under a Prime Lease is
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required, Sublessor shall use good faith efforts, unless a different standard is
specified herein with respect to a particular matter, to obtain such consent or
approval from the Lessor, except that nothing herein shall require Sublessor to
make any payment, or to amend any terms of such Prime Lease in a way that would
have an adverse effect on Sublessor, in respect of such consent or approval.
15. Default Notice from Lessor. In the event Sublessor receives a notice of
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default from the Lessor with respect to any matter pertaining to the Subleased
Premises or any obligation of Sublessee under this Agreement, Sublessor shall
immediately notify Sublessee of same in writing, and if Sublessee fails to
promptly commence the cure of such default or fails to cure such default as of a
date that is at least 15 days prior to the expiration of the applicable cure
period under the Prime Lease, Sublessor shall have the right, but no obligation,
to immediately cure such default and Sublessee shall reimburse Sublessor for the
costs incurred in connection with curing such default within 30 days after
receipt of an invoice therefor from Sublessor.
In the event (i) Sublessor receives a notice of any monetary default from
the Lessor with respect to any matter pertaining to the Leased Premises that
does not pertain to any obligation of Sublessee under this Agreement, (ii)
Sublessor is not contesting or undertaking to cure the alleged default and (iii)
the Prime Lease permits a sublessee to cure such a default, Sublessor shall
immediately notify Sublessee of same in writing, and Sublessee shall have the
right, but no obligation, to immediately cure such default but shall not be
entitled to reimbursement from Sublessor for the costs incurred in connection
with such cure.
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16. Signage. Sublessee shall have the right to maintain any existing
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signage it may have in respect of any Subleased Premises. If Sublessee does not
have a storefront sign in respect of any Subleased Premises, Sublessee shall
have the right to install a sign on the storefront of such Subleased Premises
provided it conforms to the sign criteria set forth in the Prime Lease and does
not impair the rights of Sublessor to maintain signage on its storefront. In the
event any Leased Premises does not have a separate storefront for each party,
the parties shall mutually agree on the locations of their respective signs.
17. Indemnity; Subrogation. (a) Sublessor shall defend, indemnify and hold
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harmless Sublessee and its employees, officers, directors, partners and agents
against and from any and all claims, liabilities, demands, fines, suits,
actions, proceedings, orders, decrees and judgments (collectively, "Claims") of
any kind or nature by, or in favor of, anyone whomsoever, and against and from
any and all costs, damages and expenses, including attorneys' fees, resulting
from, or in connection with, loss of life, bodily or personal injury or property
damage (i) arising, directly or indirectly, out of, or from, or on account of
any accident or other occurrence in, upon or from the Leased Premises exclusive
of the Subleased Premises or (ii) occasioned in whole or in part through the use
and occupancy of the Leased Premises exclusive of the Subleased Premises or any
construction, repair, alterations or improvements therein or appurtenances
thereto, or by any act or omission of Sublessor or any subtenant, concessionaire
or licensee of Sublessor (other than Sublessee), or its employees, agents,
contractors or invitees in, upon, at or from the Leased Premises exclusive of
the Subleased Premises.
(b) Sublessee shall defend, indemnify and hold harmless Sublessor and its
employees, officers, directors, partners and agents against and from any and all
Claims in favor of, anyone whomsoever, and against and from any and all costs,
damages and expenses, including attorneys' fees, resulting from, or in
connection with, loss of life, bodily or personal injury or property damage (i)
arising, directly or indirectly, out of, or from, or on account of any accident
or other occurrence in, upon or from the Subleased Premises or (ii) occasioned
in whole or in part through the use and occupancy of the Subleased Premises or
any construction, repair, alterations or improvements therein or appurtenances
thereto, or by any act or omission of Sublessee or any subtenant, concessionaire
or licensee of Sublessee, or its employees, agents, contractors or invitees in,
upon, at or from the Subleased Premises.
(c) Each party hereto (the "Releasing Party") hereby releases the other
(the "Released Party"), from any loss, damage, claim or liability which the
Released Party would, but for this Section 1 7(c), have had to the Releasing
Party arising out of or in connection with any damage to the property of the
Releasing Party to the extent such damage or the cause thereof is covered by
insurance maintained by the Releasing Party. Such insurance coverage maintained
shall be deemed to include any deductible or self-insured retention in effect or
permitted pursuant to this Agreement. SUCH RELEASE SHALL EXTEND TO ANY LOSS,
DAMAGE, CLAIM OR LIABILITY THAT MAY HAVE RESULTED 1N WHOLE OR 1N PART FROM ANY
ACT OR NEGLECT OF THE RELEASED PARTY, ITS OFFICERS, AGENTS OR EMPLOYEES. Each
party hereto shall immediately give to each insurance company which has issued
to it property insurance policies written notice of the terms of such mutual
releases and have such insurance policies properly endorsed, if necessary, to
prevent the
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invalidation of such insurance coverages by reason of such releases and to waive
the Releasing Party's insurer's right of subrogation that would exist had the
Releasing Party not given the foregoing release.
18. Required Notice Under Prime Lease. Sublessee shall promptly give
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written notice to Sublessor of (i) all claims, demands or controversies by or
with the Lessor under the Prime Lease or (ii) any injury, death or property
damage arising on or about the Subleased Premises. Sublessor shall promptly give
written notice to Sublessee of (i) all claims, demands or controversies by or
with the Lessor under the Prime Lease or (ii) any injury, death or property
damage arising on or about the Leased Premises.
19. Accepting Subleased Premises "As Is". Sublessee acknowledges that it is
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familiar with the Subleased Premises and has operated therein prior to the date
hereof. Sublessee accepts and has accepted possession of the Subleased Premises
"AS IS". Sublessee acknowledges that, notwithstanding anything contrary in the
Prime Lease, Sublessor has made no representations or warranties with respect to
the Subleased Premises or to the condition thereof.
20. No Waiver. The failure of a party to insist in any instance upon the
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strict keeping, observance or performance of any covenant, agreement, term,
provision or condition of this Agreement or to exercise any election herein
contained shall not be construed as a waiver or relinquishment for the future of
such covenant, agreement, term, provision, condition or election, but the same
shall continue and remain in full force and effect. No waiver or modification by
a party of any covenant, agreement, term, provision or condition of this
Agreement shall be deemed to have been made unless expressed in writing and
signed by such party. No surrender by Sublessee of possession of the Subeased
Premises or of any part thereof or of any remainder of the term of this
Agreement shall release Sublessee from any of its obligations hereunder.
21. Notices. Any notice or demand which either party may or must give to
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the other under this Agreement shall be given in the same manner for giving
notices under the Prime Lease, but addressed as follows:
If to Sublessor: Express, Inc.
Three Limited Parkway
P.O. Box 16000
Columbus, Ohio 43216
(Columbus, Ohio 43230 for non-U.S. mail)
Attn: Corporate Real Estate Department
with a copy to:
The Limited, Inc.
Three Limited Parkway
P.O. Box 16000
Columbus, Ohio 43216
(Columbus, Ohio 43230 for non-U.S. mail)
Attn: Corporate Real Estate Department
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If to Sublessee: Abercrombie & Fitch Co.
Four Limited Parkway East
Columbus, Ohio 43218
(Reynoldsburg, Ohio 43068 for non-U.S. mail)
Attn: Real Estate Department
with a copy to:
The Limited, Inc.
Three Limited Parkway
P.O. Box 16000
Columbus, Ohio 43216
(Columbus, Ohio 43230 for non-U.S. mail)
Attn: Corporate Real Estate Department
Either party may, by notice in writing, direct that future notices or
demands be sent to a different address.
22. Successors. The covenants and agreements herein contained shall bind
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and inure to the benefit of Sublessor and Sublessee and their respective
permitted successors and assigns.
23. Captions. The captions or headings of paragraphs in this Agreement are
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inserted for convenience only, and shall not be considered in construing the
provisions hereof if any question of intent should arise.
24. Severability. If any provisions of this Agreement shall be held to be
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invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
25. Governing Law. This Agreement shall be construed in accordance with,
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and governed by, the laws of the State of Ohio.
26. Further Assurances. Sublessor and Sublessee shall execute, acknowledge
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and deliver such instruments and take such other action as may be necessary or
advisable to carry out their rights and obligations under this Agreement,
including the execution of any agreement or instrument required by the Lessor
under the Prime Lease. In addition, if Sublessee or Sublessor desires to enter
into a direct and separate lease with a Lessor for the Subleased Premises or the
remainder of the Leased Premises, respectively, the other party shall cooperate
in good faith and likewise agree to enter into a direct and separate lease for
its premises provided that such other party's new lease is on terms at least as
favorable as the terms of this Agreement, in the case of Sublessee, or the terms
of the Prime Lease, in the case of Sublessor.
27. Amendment to Prime Lease. Sublessor may not make any amendment to a
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Prime Lease that would impair or reduce the rights or increase the obligations
of Sublessee under this
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Agreement, without the written consent of Sublessee. Sublessor shall furnish
Sublessee with a copy of any amendment to the Prime Lease.
28. Reasonable Efforts of Sublessor. To the extent in this Agreement that
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Sublessor has conveyed to Sublessee such utilities, services and similar
entitlements as the Lessor may provide under a Prime Lease, or to which
Sublessor may be entitled under a Prime Lease, Sublessor agrees and covenants to
use its reasonable efforts to obtain delivery of same to Sublessee. With respect
to all such entitlements, as well as any covenants, warranties, representations,
obligations or other agreements of the Lessor (not otherwise expressly limited
in this Agreement), Sublessor's "reasonable efforts" shall require the
performance by Sublessor, at Sublessee's reasonable request and at Sublessee's
sole cost and expense, of one or more of the following:
(i) the execution by Sublessor and delivery to the Lessor, promptly
following receipt of Sublessee's written request therefor, of notices, requests
and other similar writings; and
(ii) the institution by Sublessor, promptly following receipt of
Sublessee's written request therefor, of arbitration (if permitted under the
Prime Lease) or legal proceedings to enforce, interpret or define the Lessor's
obligations under the Prime Lease; provided, however, that any legal proceedings
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instituted by Sublessor hereunder shall be under the exclusive control of
Sublessor and shall include all reasonable preliminary and trial proceedings in
the court of original jurisdiction.
Sublessee shall defend, indemnify and hold Sublessor harmless from and
against any and all court costs, costs of filing, attorneys' fees and awards
resulting from, or incurred in connection with, legal proceedings instituted by
Sublessor pursuant to this Section 28.
29. Reasonableness and Good Faith. Whenever this Agreement grants Sublessor
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or Sublessee the right to take action, exercise discretion or make other
determinations regarding the Subleased Premises, each party agrees to act
reasonably and in good faith unless a different standard is specified herein.
30. Arbitration. Except for the non-payment of rental or other charges due
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by Sublessee under this Agreement (unless Sublessee first pays under protest as
provided for below), or in the event that any action or inaction taken by
Sublessee would cause Sublessor to be in default under a Prime Lease, all
disputes and disagreements between Sublessor and Sublessee shall be resolved
pursuant to an arbitration proceeding pursuant to the rules of the American
Arbitration Association. The provisions of this Agreement contain the sole and
exclusive method, means and procedure to resolve, as between Sublessor and
Sublessee, any and all disputes or disagreements, including whether any
particular matter constitutes, or with the passage of time would constitute, a
default. As to any matter submitted to arbitration to determine whether it
would, with the passage of time, constitute a default, such passage of time
shall not commence to run until any such affirmative determination, so long as
it is simultaneously determined that the challenge of such matter as a potential
default was made in good faith, except with respect to the payment of money.
With respect to the payment of money, such passage of time shall not commence to
run in the event that the party which is obligated to make the payment does in
fact make payment to the other party. Such payment can be
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<PAGE>
accompanied by a good-faith notice stating why the party has elected to make a
payment under protest. Such protest will be deemed waived unless the subject
matter identified in the protest is submitted to arbitration pursuant to this
Section 30.
11
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the day and year first written above.
SUBLESSOR:
---------
EXPRESS, INC.,
a Delaware corporation,
ATTEST: By: /s/ George R. Sappenfield
--------------------------------------
Name: George R. Sappenfield
Title: Vice President -- Real Estate
/s/ Samuel P. Fried
--------------------------
Samuel P. Fried
Assistant Secretary
SUBLESSEE:
----------
ABERCROMBIE & FITCH CO.,
a Delaware corporation,
ATTEST: By: /s/ Seth R. Johnson
------------------------------------------------
Name: Seth R. Johnson
Title: Vice President -- Chief Financial Officer
/s/ Samuel P. Fried
--------------------------
Samuel P. Fried
Secretary
12
<PAGE>
Schedule 1
----------
<TABLE>
<CAPTION>
Bill Lse No. Center Name State Store Gross Store %
<S> <C> <C> <C> <C> <C> <C>
EXP 4272 Highland Park TX ABF 522 11,424 36.7%
EXP 155 8,961 28.7%
STC 155 4,045 13%
VIC 490 5,752 18.4%
VSB 490 1,022 3.3%
------
31,204
EXP 5923 San Franciso Centre CA ABF 575 8,360 45.9%
EXP 427 9,868 54.1%
------
18,228
</TABLE>
13