Exhibit 10.4
FORM OF
SHARED FACILITIES AGREEMENT
This SHARED FACILITIES AGREEMENT is entered into as of
[_________], 1996 (this "Agreement"), by and between [TENANT ENTITY], a
Delaware corporation ("Sublessor"), and ABERCROMBIE & FITCH CO., a Delaware
corporation (" Sublessee").
WITNESSETH:
WHEREAS, Sublessor is a tenant under each of the lease
agreements described on Schedule 1 attached hereto and made a part hereof;
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
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 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 replacing Schedule 1
with a new Schedule 1,which describes such other lease and 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.
"Subleased Premises" means the portion of the Leased Premises
occupied by Sublessee as described on Schedule 1, individually or
collectively, as the context may require.
2. Sublease. Sublessor, in consideration of the covenants and
agreements 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
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, 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)
5. Utilities/Other Services. (a) Except as otherwise specified
herein, the 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 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 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 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 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 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
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, however, Sublessor will notify Sublessee of its intent to terminate
a Prime 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 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, 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, 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,
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 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 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 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 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 that it is familiar with the terms of the Prime Leases.
14. Consent/Approvals. In the event Sublessee seeks a consent or
approval 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, however, that where consent or approval of the Lessor
under a Prime Lease is 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 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.
16. Signage. Sublessee shall have the right to maintain any existing
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 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 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 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 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 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 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: [address of Sublessor]
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
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 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 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 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, and governed by, the laws of the State of Ohio.
26. Further Assurances. Sublessor and Sublessee shall execute,
acknowledge 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 Prime Lease that would impair or reduce the rights or increase the
obligations of Sublessee under this 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 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 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 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 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 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.
IN WITNESS WHEREOF, the parties hereto have caused these
presents to be executed the day and year first written above.
SUBLESSOR:
[TENANT ENTITY],
a Delaware corporation,
ATTEST: By:____________________________________
Name:
Title:
____________,
Assistant Secretary
SUBLESSEE:
ABERCROMBIE & FITCH CO.,
a Delaware corporation,
ATTEST: By:____________________________________
Name:
Title:
___________,
Assistant Secretary
Schedule 1
(See attached)