Exhibit 10.2
FORM OF
STORE LEASES AGREEMENT
This STORE LEASES AGREEMENT is entered into as of ________,
1999 (this "Agreement"), by and among THE LIMITED STORES, INC.
("TLS"), VICTORIA'S SECRET STORES, INC. ("Victoria's Secret"),
▇▇▇▇▇▇ NEW YORK, INC. ("▇▇▇▇▇▇"), EXPRESS, LLC ("Express"),
STRUCTURE, INC. ("Structure"), THE LIMITED, INC. ("Limited") and TOO,
INC., a Delaware corporation and successor to Limited Too, Inc. ("Too, Inc.").
WITNESSETH:
WHEREAS, each of TLS, Victoria's Secret, ▇▇▇▇▇▇, Express and Structure
are subsidiaries of Limited;
WHEREAS, one of TLS, Victoria's Secret, ▇▇▇▇▇▇, Express or Structure
is the prime tenant (as to each individual lease, the "Prime Tenant") under
each of the lease agreements described on Schedule 1 hereto;
WHEREAS, prior to the date hereof, Too, Inc. has occupied all or a
portion of the premises leased by such Prime Tenant under such lease
agreements, as such premises are described on Schedule 1 hereto, without a
written agreement;
WHEREAS, the parties hereto desire to memorialize their prior
agreements and understandings with respect to such premises, as such
agreements and understandings are amended by this Agreement;
WHEREAS, Too, Inc. leases directly the additional premises described on
Schedule 2 hereto, all of which are presently guaranteed by Limited;
WHEREAS, all of Too, Inc.'s premises described on Schedule 1 hereto
and all of Too, Inc.'s directly-leased premises described on Schedule 3 hereto
are adjacent to or shared with premises of a Prime Tenant; and
WHEREAS, as a consequence of the spin-off of Too, Inc. by Limited
pursuant to the Distribution Agreement dated as of _______, 1999 between
Limited and Too, Inc. (the "Distribution Agreement"), Too, Inc. will no longer
be an Affiliate (as hereafter defined) of Limited or the Prime Tenants,
Limited, each Prime Tenant and Too, Inc. desire to evidence their agreement
relating to the shared occupancy of such premises as well as the continuation
of Limited's guarantees of Too, Inc.'s directly-leased premises, in each case
upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the covenants set forth herein,
the parties agree as follows:
1. Definitions.
As used in this Agreement the following terms will have the following
meanings, applicable both to the singular and the plural forms of the terms
described:
"Adjacent Premises" means premises where, as of the date
hereof, Too, Inc. stores are either adjacent to, not fully separated
from or operated as a department within, a Prime Tenant store. As of
the date hereof, such premises constitute all of the Subleased
Premises plus the additional premises listed on Schedule 3 hereto.
"Affiliate" means a corporation, partnership, limited
liability company or other business entity, which, directly or
indirectly, controls, is controlled by, or is under common control
with, another corporation, partnership, limited liability company or
other business entity. If more than 50 percent of the voting stock of
a corporation is owned by another corporation, partnership, limited
liability company or other business entity, the corporation whose
stock is so owned shall be deemed to be controlled by the
corporation, partnership, limited liability company or business
entity owning such stock.
"Distribution Date" is defined in the Distribution Agreement.
"Excess Rent" means, in respect of any Leased Premises, rent
or any other amount payable under the relevant Prime Lease, which is
calculated on the basis of a fixed percentage of sales over a
pre-determined sales level, and is in addition to the fixed base rent
or other fixed payment required by the relevant Prime Lease.
"Gross Sales" shall mean the term (or any similar term) used
in the relevant Prime Lease to determine the basis for calculating
the payments due to the landlord thereunder, regardless of whether
the relevant Prime Lease refers to such term as gross sales, net
sales or a similar term. In the absence of any such term being
defined in the applicable Prime Lease, "Gross Sales" shall have the
meaning attributed thereto in the Lease Agreement dated __________
between Limited and _____________.
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"Guaranteed Lease" means, as of the date hereof, each Too,
Inc. lease set forth on Schedule 2 hereto, as such Schedule may be
deemed modified after the date hereof in accordance with Section 23
and as such Schedule may be amended from time to time by agreement of
all parties to the relevant Guaranteed Lease; all such leases are
collectively referred to as the "Guaranteed Leases."
"Landlord" means the landlord under a Prime Lease.
"Lease Term" means, in respect of any Prime Lease, the
initial term of such Prime Lease, excluding any renewal or extension
option thereunder.
"Leased Premises" means the premises in which a Prime Tenant
has a leasehold interest under a Prime Lease or all such premises
collectively, as the context may require.
"Percentage Rent" means, in respect of any Leased Premises,
monthly rent which, in lieu of a fixed monthly rent or any other
amount payable under the relevant Prime Lease, is calculated
exclusively as a percentage of the gross sales of the tenant of such
Leased Premises for such month.
"Prime Lease" means each of the leases described on Schedule
1; all such leases are collectively referred to as the "Prime
Leases."
"Ratably" means, in respect of any Leased Premises, divided
equally among all persons occupying any portion of such Premises
(regardless of the portion of such Premises which each person
occupies or uses).
"Space Size Ratios" means,
(i) in respect of any Subleased Premises, the ratio of (x)
the size of the selling space in the Subleased Premises to (y) the
size of the selling space in the entire Leased Premises and
(ii) in respect of the portion of the Leased Premises
retained by the Prime Tenant, the ratio of (x) the size of the
selling space in such retained premises to (y) the size of the
selling space in the entire Leased Premises.
All such sizes, as of the date hereof, are as reflected on Schedule
1. The applicable Space Size Ratios shall be adjusted accordingly in
the event of
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any change in the size of either a Leased Premises or a Subleased
Premises, or in the event of the presence of any other tenants in the
Leased Premises, but shall not be adjusted solely due to a
reallocation between the total amount of selling space and the total
amount of storage space in a given Leased Premises or Subleased
Premises.
"Store Separation Costs" means all costs reasonably
necessary to physically separate, in a manner and to an extent
mutually satisfactory to Limited, the applicable Prime Tenant and
Too, Inc., the Prime Tenant store from the corresponding Too, Inc.
Adjacent Premises, including any segregation of selling or storage
space, construction of firewalls, construction of access corridors,
necessary modifications to the HVAC system or utilities (e.g. to
enable separate metering) and, where applicable, purchase of cabinets
and fixtures for use on the newly constructed separation wall, in
each case on both sides of a separation wall and of comparable
quality to other cabinets and fixtures already used in the relevant
store.
"Subleased Premises" means the portion of the Leased
Premises occupied by Too, Inc. in accordance with this Agreement,
individually or collectively, as the context may require. Each of the
Subleased Premises on the date hereof is described on Schedule 1
hereto.
2. Sublease.
Each Prime Tenant, in consideration of the covenants and agreements
to be performed by Too, Inc. and upon the terms and conditions hereinafter
stated, does hereby sublease, demise and let unto Too, Inc., and Too, Inc.
does hereby sublease from each Prime Tenant, each of the Subleased Premises
upon the terms and conditions set forth below.
3. Priority of Prime Lease.
(a) Except to the extent otherwise expressly set forth in this
Agreement, this Agreement, as it relates to the Subleased Premises, is
expressly subject and subordinate to the applicable Prime Lease and 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 with respect to the corresponding Subleased
Premises with the same force and effect as if Prime Tenant were the landlord
under the Prime Lease and Too, Inc. were the tenant thereunder and the
provisions of the Prime Lease are
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incorporated herein by reference with the same force and effect as if they were
fully set forth herein.
(b) Too, Inc. agrees that nothing in this Agreement shall be deemed
to grant Too, Inc. any rights that would conflict with any of the covenants
and conditions of the Prime Lease, and Too, Inc. agrees that it will do
nothing in, on or about the Subleased Premises that would result in the breach
by Prime Tenant of its undertakings and obligations under the Prime Lease.
Too, Inc. hereby assumes and shall fully perform and discharge, with regard to
the Subleased Premises, all the obligations of Prime Tenant as tenant under
the Prime Lease during the Lease Term and shall abide by and adhere to all
restrictions and all other terms, covenants and conditions of the Prime Lease.
Nothing contained in this Agreement shall be construed as a guarantee by Prime
Tenant of any of the obligations, covenants, warranties, agreements or
undertakings of the Landlord in the Prime Lease, nor as an undertaking by
Prime Tenant to Too, Inc. on the same or similar terms as are contained in the
Prime Lease.
(c) In the event of any breach by Too, Inc. of any term, covenant or
condition of this Agreement, in addition to the rights and remedies provided
in this Agreement, Prime Tenant shall have all the rights against Too, Inc. as
would be available to the Landlord against Prime Tenant as tenant under the
applicable Prime Lease if such breach were by Prime Tenant thereunder,
including the right to terminate the sublease under circumstances and upon
notice to Too, Inc. that is similar to that which the applicable Landlord
would be entitled to assert against Prime Tenant under the applicable Prime
Lease.
4. Term; Renewals.
(a) The term of the sublease granted herein with respect to each of
the Subleased Premises shall be coextensive, less one day, with the Lease Term
of the corresponding Prime Lease, unless sooner terminated as provided herein.
Too, Inc. acknowledges that the Lease Term shall not include renewal or
extension options exercisable by Prime Tenant (whether or not Prime Tenant in
fact exercises same) and that the exercise of any such option shall be
determined by Prime Tenant in its sole and absolute discretion.
(b) Prime Tenant will notify Too, Inc. no later than the 60th day
prior to the expiration of any renewal or extension option in respect of the
Prime Lease if Prime Tenant has determined not to exercise any such option,
and will first offer to assign the Prime Lease to Too, Inc., to the extent
permitted under such Prime Lease or by the Landlord, or otherwise to cooperate
with Too, Inc. to allow Too, Inc., in its discretion, to exercise any such
option with respect to the Leased Premises, so long as Limited and its
Affiliates have no responsibility or liability
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under the Prime Lease after expiration of the Lease Term (without giving
effect to such renewal option). If Too, Inc. decides to, and is permitted to,
assume the Prime Lease on such terms, then Too, Inc. shall assume
responsibility for and pay any and all costs relating to such premises
(including, without limitation, all liabilities and obligations under the
Prime Lease as so extended). Too, Inc. acknowledges that in the event of any
expiration of a Lease Term, this Agreement shall terminate with respect to the
corresponding Prime Lease.
(c) If Prime Tenant desires to renew or extend a Prime Lease, then it
shall notify Too, Inc. thereof no later then 60 days prior to the expiration
of the applicable Prime Lease. Within 10 days of Too, Inc.'s receiving such
notice, it shall notify Prime Tenant as to whether it wishes to remain in the
Leased Premises. If both parties have decided to renew or extend their
respective lease arrangements, then, unless otherwise agreed, the parties
shall each negotiate and enter into separate lease arrangements with the
applicable Landlord with respect their respective premises, and the parties
shall divide Ratably all Store Separation Costs relating to such premises. If
Prime Tenant intends to extend or renew the Prime Lease notwithstanding that
Too, Inc. has not elected to continue its sublease arrangements, and Prime
Tenant does not intend to use all of the floor space in the Prime Lease, then
Prime Tenant shall assume responsibility for and pay all Store Separation
Costs which the Landlord may require in relation to such premises in exchange
for Landlord's consent to such renewal or extension.
5. Utilities/Other Services.
(a) Except as otherwise specified herein, the only services,
utilities or rights to which Too, Inc. is entitled under this Agreement with
respect to the Subleased Premises are those to which the applicable Prime
Tenant is entitled from the Landlord under the applicable Prime Lease and
Prime Tenant shall have no liability to Too, Inc. for the failure to provide
such services, utilities or rights unless such failure is the result of some
act or omission of Prime Tenant under the Prime Lease. In addition, Too, Inc.
shall not, without the consent of Prime Tenant, claim any entitlement to
utility services greater than that which it was receiving (if Too, Inc. 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 Prime Tenant, or the Landlord
if required by the Prime Lease, and the payments to the utility companies or
the Landlord, as the case may be, shall be shared pro rata by Too, Inc., Prime
Tenant and any other occupant of the premises based on their respective Space
Size Ratios, and without regard to consumption. Either party shall have the
right to cause the utility services furnished to their respective premises to
be separately
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metered or sub-metered, subject to applicable law and the
obtaining of any necessary consent from the Landlord and provided that the
party causing separate metering or sub-metering pays all costs and expenses
related thereto and that the other party's utility services are not thereby
diminished. For so long as utility services in respect of the Subleased
Premises are paid for by Landlord or Prime Tenant, they shall be considered to
be "monetary obligations" for purposes of Section 6 and invoiced and paid in
accordance therewith.
6. Monetary Obligations Under the Prime Lease.
(a) Except as specified in Section 7 and except with respect to
Percentage Rent, all monetary obligations of Prime Tenant (including, without
limitation, base, fixed or minimum rent, common area maintenance charges, real
estate taxes and assessments, insurance charges, waste removal, merchants
association dues, marketing, advertising and other promotional fund
contributions, utilities (if applicable), HVAC and chilled water charges,
whether same are payable pursuant to the Prime Lease, any other covenant or
restriction, or otherwise) shall be shared pro rata by Too, Inc. and Prime
Tenant in proportion to their respective Space Size Ratios. Any Excess Rent
payable under a Prime Lease shall be paid exclusively by Prime Tenant, and
shall not be passed on to, or payable by, Too, Inc.
(b) On or before the 14th day of each fiscal month of Limited, the
Prime Tenant shall provide an invoice to Too, Inc. setting forth Too, Inc.'s
pro rata share of such fiscal month's estimated monetary obligations for all
Subleased Premises. To the extent that the estimated payment invoiced by Prime
Tenant in respect of any such fiscal month ultimately differs from Too, Inc.'s
pro rata share of the monetary obligations actually incurred by Prime Tenant
in such fiscal month, Prime Tenant's monthly invoice in the following fiscal
month shall include an adjustment to correct such difference; provided that
any failure by Prime Tenant to effect such adjustment shall not preclude such
Prime Tenant from effecting such adjustment at any subsequent time. Too, Inc.
shall pay to the Prime Tenant, on or before the last day of each fiscal month
of Limited, the amount so invoiced. Too, Inc. may request to audit the source
of Prime Tenant's billing records up to twice per year. All costs of any such
audit will be paid by Too, Inc. unless the audit reveals there to have been an
overcharge by Limited in excess of 5%, in which case the costs of such audit
shall be shared equally by Limited and Too, Inc.. The scope of any audits will
be limited to charges paid by the Prime Tenant and invoiced to Too, Inc. All
monthly payments by Too, Inc. will be due regardless of any dispute regarding
any payments hereunder; and retroactive adjustments, if any, will be paid
following dispute resolution procedure set forth in Section 34. Any remedial
payments made by either party shall be without interest, except that remedial
payments relating to a period ending more than 30
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days prior to the
commencement of the applicable audit shall bear interest at the prime rate (as
quoted from time to time in the Wall Street Journal).
(c) If rent under a Prime Lease is based upon Percentage Rent, then
such rent shall be divided between Prime Tenant and Too, Inc. in proportion to
the percentage which each party's Gross Sales in the store occupied under such
Prime Lease represents of the total Gross Sales attributable to such store.
Too, Inc. shall pay its share of the Percentage Rent to Prime Tenant for any
fiscal month on or before the last day of the following fiscal month.
(d) Too, Inc. agrees to provide the relevant Prime Tenant promptly
with all sales and other information as may be reasonably requested by such
Prime Tenant in connection with the calculation of the Prime Tenant's monetary
obligations to the relevant landlord required under the relevant Prime Lease
or in connection with Prime Tenant's calculation of Percentage Rent or Excess
Rent. At Prime Tenant's request, Too, Inc. shall certify the accuracy of any
information so submitted.
(e) All obligations of Too, Inc. hereunder shall survive the
termination of the relevant Prime Lease or the sublease hereunder for the same
period that the relevant Prime Tenant has any obligation to the relevant
Landlord.
7. Non-Monetary Obligations.
(a) Except as set forth in subsection (b), if 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 either 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 or the roof), such obligation shall be
performed by Prime Tenant and the cost of performing same shall be shared pro
rata by Too, Inc. and Prime Tenant based on their respective Space Size
Ratios, unless the parties have agreed to a different cost-sharing arrangement
under a separate written agreement.
(b) If any individual capital expenditure or repair is estimated to
be in excess of $50,000, Prime Tenant shall notify Too, Inc. of such estimate
prior to entering into any binding agreement with respect thereto, and Too,
Inc. shall have the right (i) to challenge such estimate or find a lower
estimate within 10 business days of receiving such notice from Prime Tenant
and (ii) to decline to share the costs of such capital expenditure or repair
if the remaining term of the applicable sublease is less than one year (unless
such expenditure or repair is reasonably necessary or is mandated by the Prime
Lease, in which case Too, Inc. may pay only its ratable share of the costs of
any reasonable, lower cost alternative which
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would be permissible under the Prime Lease if the Prime Tenant were not
renewing the Prime Lease upon its expiration).
8. Tenant Inducements
(a) 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 Prime Tenant for its sole and exclusive benefit, unless
the parties have made prior arrangements (through a written agreement) to
share any such monetary inducement. Except as specified in paragraph (c), all
monetary inducements arising after the date hereof, including, without
limitation, tenant improvement allowances, moving allowances and key money,
under a Prime Lease shall be shared pro rata by Too, Inc. and Prime Tenant
based on the applicable Space Size Ratios, unless otherwise agreed by the
parties under a separate written agreement. Any reporting obligation to
Landlord arising under Section 110 of the Internal Revenue Code in respect of
tenant inducements shall be effected jointly by Prime Tenant and Too, Inc. if
such tenant inducements relate wholly or partially to the Subleased Premises.
(b) Except as specified in paragraph (c), if a Prime Tenant is
entitled to an abatement or reduction of rent (e.g., as a result of a
condemnation or casualty) under a Prime Lease, as same exists as of the date
hereof, Too, Inc. shall be entitled to a share of such abatement or reduction
of rent in an equitable manner taking into account the extent to which the
Subleased Premises are affected by the circumstances resulting in such
abatement or rent reduction.
(c) If a Prime Tenant or Limited recovers from a landlord under a
Prime Lease, whether before, on or after the Distribution Date, any amounts in
respect of such Prime Lease (including without limitation common area charges,
maintenance or related charges) in respect of any period ending on or prior to
the Distribution Date, such amounts shall belong exclusively to Prime Tenant
or Limited (regardless of whether such amounts are actually paid or take the
form of a reduction or abatement in rent or other charges otherwise
subsequently payable to Landlord under the Prime Lease). If, however, Prime
Tenant becomes entitled at any time after the Distribution Date to any
abatement or reduction in common charges, maintenance or related charges
relating, in each case, solely to the period or periods commencing after the
Distribution Date, then Prime Tenant and Too, Inc. shall share such abatement
or reduction in proportion to their respective Space Size Ratios after the
party incurring any out-of-pocket costs and expenses related to obtaining such
abatements and reductions has been fully reimbursed for such costs and
expenses.
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9. Tenant Termination Rights.
Subject only to Prime Tenant's obligations set forth in Section 18,
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 Landlord, shall belong
exclusively to Prime Tenant and may be exercised by Prime Tenant in its sole
and absolute discretion without liability to Too, Inc.; provided, that Prime
Tenant will promptly notify Too, Inc. of its intent to terminate a Prime Lease
and will first offer to assign the Prime Lease to Too, Inc., to the extent
permitted under such Prime Lease or by the Landlord, so long as neither Prime
Tenant nor any of its Affiliates has any responsibility or liability under the
Prime Lease after such assignment. Too, Inc. 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 in such a manner that Prime Tenant may need access to the
Subleased Premises and Too, Inc. 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 such access is limited to business hours (or,
if outside of regular business hours, is requested at least 48 hours in
advance) and 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 without limitation 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. No party make may
make any alterations or effect any renovations to its premises without first
obtaining all necessary consents from the Landlord and any other necessary
persons, and ensuring the compliance of such alterations or renovations with
applicable building codes. The party making such alterations or renovations
shall bear the entire cost of obtaining such consents and ensuring such
compliance.
(c) If either Prime Tenant or Too, Inc. seeks, in one or more
projects in any twelve consecutive months, to remodel premises which are the
subject of a
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Prime Lease or which otherwise abut upon Adjacent Premises, and the total
budgeted or actual cost of such renovations exceeds $160,000, then the party
undertaking such renovations shall notify the other party of its renovation
plans and budget and Prime Tenant and Too, Inc. shall cooperate and use
reasonable efforts (i) to obtain the consent of the lessor of such premises to
the physical separation of the Prime Tenant store from the Too, Inc. store and
(ii) to ensure that such renovations comply with all applicable building
codes. If such consent is granted and such codes can be complied with, then
the party undertaking such renovations shall pay all Store Separation Costs
reasonably necessary to physically separate, in a manner and to an extent
mutually satisfactory to Prime Tenant and Too, Inc., the Too, Inc. store
premises from the Adjacent Premises.
11. Assignment and Subletting.
(a) Too, Inc. 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 Prime Tenant, which consent may be withheld by Prime
Tenant in its sole and absolute discretion without regard to standards of
reasonableness. Notwithstanding the foregoing, but subject to the terms of the
Prime Lease, Too, Inc. may effect a Transfer, without the consent of Prime
Tenant, to an Affiliate of Too, Inc., provided that if at any time after such
permitted Transfer the transferee is no longer an Affiliate of Too, Inc., the
event terminating such affiliation shall be deemed a Transfer subject to Prime
Tenant's consent pursuant to the preceding sentence.
(b) In the event of any Transfer, whether or not Prime Tenant grants
its consent to such Transfer or withholds its consent to such Transfer, Too,
Inc. shall remain fully liable to perform its duties under this Agreement
following a Transfer. If Too, Inc. enters into a Transfer, Too, Inc. shall pay
to Prime Tenant 50% of all consideration received by Too, Inc. in such
transaction (as rent or inducement for such Transfer) that is in excess of the
total sums that Too, Inc. is obligated to pay Prime Tenant under this
Agreement, or the prorated portion thereof if only a portion of the Subleased
Premises is Transferred; provided that if the Prime Lease requires that any
such excess amounts received in connection with any Transfer be remitted to
the Landlord under the Prime Lease, then all such amounts shall be so
remitted.
(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.
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(d) If Prime Tenant 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 Limited, Prime Tenant shall give Too, Inc. written
notice of such proposed assignment or sublease at least 60 days prior to the
effective date of such assignment or sublease, and Too, Inc. shall have the
right to terminate this Agreement with respect to such Prime Lease by giving
written notice thereof to Prime Tenant prior to such effective date. Too,
Inc.'s termination notice shall specify the termination's effective date,
which shall be no later than 60 days after the effective date of Prime
Tenant's assignment or sublease. If Too, Inc. does not elect to terminate this
Agreement with respect to such Prime Lease or such assignment or sublease is
to an Affiliate of Limited, the following shall be conditions precedent to the
effectiveness of such assignment or sublease:
(i) in the case of an assignment, Prime Tenant 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, Prime Tenant 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, Prime Tenant shall cause the
transferee to acknowledge the rights of Too, Inc. 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 Too, Inc.
Any sublet or assignment by Prime Tenant to a non-Affiliate under this
Section shall not be deemed to be an early termination of the Prime Lease by
Prime Tenant for purposes of Section 18 hereof unless Prime Tenant, in its
discretion, concludes that such sublease or assignment would materially impair
Too, Inc.'s business as then conducted in the adjacent Subleased Premises.
Furthermore, if, as a condition to such sublease or assignment, the Prime
Tenant is obliged to incur Store Separation Costs:
(x) in excess of $160,000, then such costs shall be paid
entirely by Prime Tenant, or
(y) of $160,000 or less, then such costs shall be divided
Ratably by Prime Tenant and Too, Inc.,
and, in either case, the sublessee or assignee shall be relieved of any
obligation it might otherwise have hereunder to pay any such costs in respect
of the subleased or assigned premises.
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12. Shared Back Rooms in Adjacent Premises.
With respect to Adjacent Premises which share back rooms, Prime
Tenant and Too, Inc. agree, as practicable, to take all steps reasonably
necessary in order to physically segregate and secure their respective
inventory in such back rooms. The cost of any renovations necessary to achieve
this end shall be divided Ratably among Prime Tenant, Too, Inc. and any other
tenant sharing such premises.
13. No Default Under Prime Lease.
(a) Too, Inc. 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 Landlord under the
Prime Lease or that would cause Prime Tenant 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 Prime Tenant under the Prime Lease or except as may be
due to the negligence or willful misconduct of Prime Tenant, Too, Inc. will
defend, indemnify and hold harmless Limited and its Affiliates 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 Too, Inc. by reason of which
the Prime Lease is or may be terminated or forfeited or Prime Tenant found to
be in default thereunder or the Landlord is or may be entitled to damages or a
penalty.
(b) Prime Tenant 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 Landlord under the
Prime Lease or that would cause Prime Tenant to be in default under the Prime
Lease or to pay damages or any penalty (e.g., late charges); provided that the
foregoing shall not limit the rights of Prime Tenant to early terminate a
Prime Lease pursuant to Section 18. Except as may be due to the default by
Too, Inc. under this Agreement or except as may be due to the negligence or
willful misconduct of Too, Inc., Prime Tenant will defend, indemnify and hold
harmless Too, Inc. 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 Prime
Tenant by reason of which the Landlord is or may be entitled to damages or a
penalty.
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14. Prime Leases.
Limited shall make available to Too, Inc. a copy of any Prime Lease
requested by Too, Inc.. Too, Inc. acknowledges that it has been provided with
an opportunity to make copies of such Prime Leases as it desires, and that it
accepts to be bound by all of the obligations of the Prime Leases as if it
were a party thereto.
15. Consent/Approvals.
To the extent that the Landlord under a Prime Lease has reserved the
power to consent to or to object to an action to be performed by the tenant
under the Prime Lease, Prime Tenant reserves the same right to consent to or
object to such action by Too, Inc. under this Agreement. If Too, Inc. seeks a
consent or approval from Prime Tenant 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 Prime Tenant shall be required to
respond to Too, Inc. shall be extended by ten days after the expiration of any
time period in which the Landlord has to respond under the Prime Lease and
(ii) the denial of such consent or approval by the Landlord shall be
conclusive and binding on Too, Inc.; provided that, where consent or approval
of the Landlord under a Prime Lease is required, Prime Tenant 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 Landlord,
except that nothing herein shall require Prime Tenant to make any payment, or
to amend any terms of such Prime Lease in a way that would have an adverse
effect on Prime Tenant, in respect of such consent or approval.
16. Default Notice from Landlord.
If Prime Tenant receives a notice of default from the Landlord with
respect to any matter pertaining to the Subleased Premises or any obligation
of Too, Inc. under this Agreement, Prime Tenant shall immediately notify Too,
Inc. of same in writing, and if Too, Inc. 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, Prime Tenant shall have the right, but no obligation, to immediately
cure such default and Too, Inc. shall reimburse Prime Tenant for the costs
incurred in connection with curing such default within 30 days after receipt
of an invoice therefor from Prime Tenant.
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17. Signage.
Too, Inc. shall have the right to maintain any existing signage it
may have in respect of any Subleased Premises. If Too, Inc. does not have a
storefront sign in respect of any Subleased Premises, Too, Inc. shall have the
right to install a sign on the storefront of such Subleased Premises, provided
the same is permitted under the Prime Lease as well as the Trademark and
Service ▇▇▇▇ Licensing Agreement, dated the date hereof, between Limco, Inc.
and LimToo, Inc., and does not impair the rights of Prime Tenant to maintain
signage on its storefront. If any Leased Premises does not have a separate
storefront for each party, the parties shall mutually agree on the locations
of their respective signs.
18. Early Discretionary Termination of Prime Lease by Prime Tenant.
(a) If Prime Tenant decides to early terminate a Prime Lease (other
than pursuant to the exercise of "kickout" rights, "cotenancy" rights or any
right to terminate in the event of a casualty or condemnation or default of
the Landlord), or if any event of default occurs under a Prime Lease
attributable to any cessation of operations by Prime Tenant which could or
does give rise to Landlord's right to early terminate such Prime Lease, then
the Prime Tenant shall offer to assign the Prime Lease to Too, Inc., to the
extent permitted under such Prime Lease or by the Landlord, so long as neither
Limited nor any of its Affiliates has any responsibility or liability under
the Prime Lease after such assignment. If Too, Inc. elects to assume the
entire Prime Lease on such terms, and the Landlord consents thereto, then the
parties shall cause such assignment to be effective no later than the date on
which the Prime Lease would otherwise have been terminated pursuant to the
first sentence hereof (such date, as well as any date on which a Prime Lease
is actually terminated, being herein referred to as a "Lease Early Termination
Date").
(b) If a Prime Lease has been early terminated in accordance with
this Section 18 then, subject to subsection (c) hereof, Prime Tenant or its
Affiliates shall provide to Too, Inc. a combination of cash and loans for each
Prime Lease so terminated, as set forth below, in accordance with the number
of years remaining in the applicable Lease Term after the applicable Lease
Early Termination Date:
Remaining Term of
Prime Lease Cash Payment Loan Amount
----------- ------------ ------------
Less than one year -- $ 100,000.00
One to two years $ 50,000.00 $ 100,000.00
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Three to four years $ 100,000.00 $ 100,000.00
Greater than four years $ 100,000.00 $ 150,000.00
All such amounts shall be funded by Limited or one of its Affiliates to Too,
Inc. no later than the 90th day after the applicable Lease Early Termination
Date.
(c) Too, Inc. shall be entitled to the cash payments and loans pursuant
to subsection (b) or (e) if and only if:
(x) (i) Too, Inc. continues to have store operations in
excess of 1,000 square feet of selling space in the shopping mall or
other commercial premises in which the relevant Prime Lease was
located during and after the 90-day period commencing on the
applicable Lease Early Termination Date, or (ii) Too, Inc. reopens
another store within such shopping mall or commercial premises within
a year of the Lease Early Termination Date; and
(y) Too, Inc. shall operate a store in the shopping mall or
other commercial premises in which the corresponding Prime Lease was
located for (A) more than 18 months after (i) the Lease Early
Termination Date, if Too, Inc. maintained a store presence in the
Subleased Premises on and after the Lease Early Termination Date, or
(ii) the date on which Too, Inc. reopened a store in accordance with
clause (x)(ii) above, if Too, Inc. vacated the Subleased Premises on
or before the Lease Early Termination Date or (B) the remainder of the
lease term for the stores where the balance of the Prime Lease term is
less than a year.
(d) Any loans made available by Limited or its Affiliates pursuant to
subsection (b) hereof shall have the following terms: (i) principal of the
loan shall be repaid in one installment on the fifth anniversary of the making
of such loan, (ii) interest shall accrue at a rate equal to Limited's
five-year borrowing rate in effect from time to time and shall be payable
annually in arrears by Too, Inc, (iii) each loan shall be prepayable in whole
or in part (together with accrued but unpaid interest thereon) at any time
prior to the due date, and (iv) each loan shall have other terms and
conditions customary for similar loans.
(e) At any time after Limited or its Affiliates have closed pursuant
to this Section 18 an aggregate of 98 stores to which Too, Inc. has Adjacent
Premises, Limited or one of its Affiliates shall, subject to subsection (c)
hereof, pay to Too, Inc. no later than the 90th day after the applicable Lease
Early Termination Date an additional cash payment of $50,000 (which amount
shall be
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in addition to any other cash or loan amount payable to Too, Inc.
under this Section 18) for each additional Limited store (x) which a Prime
Tenant closes, (y) to which Too, Inc. has Adjacent Premises and (z) as to
which the remaining term of the Prime Lease at the time of such closure is
greater than four years.
(f) If, on any date after the payment to Too, Inc. of any
compensatory amounts pursuant to this Section 18, Too, Inc. loses its right to
such compensation pursuant to paragraph (c) hereof, then Too, Inc. shall
promptly after the date of such loss (and in any event no later than the 60th
day after the date of such loss) repay to Limited (x) all cash amounts paid to
Too, Inc. under this Section 18 (together with interest accrued on such cash
payments from the date of Too, Inc.'s non-compliance through the date of
repayment by Too, Inc. at a rate equal to the rate of interest charged to Too,
Inc. on the loans extended pursuant to Section 18) and (y) all loans (together
with accrued but unpaid interest thereon through the date of repayment)
extended to Too, Inc., in each case with respect to the store or stores for
which compensation was provided to Too, Inc. pursuant to paragraphs (b) or (e)
hereof.
(g) Too, Inc. acknowledges that any amount received pursuant to this
Section 18 shall constitute complete satisfaction of any claims that it might
otherwise have against Limited or any Affiliate of Limited, whether in tort or
contract, in any way related to Prime Tenant's early termination of a Prime
Lease, and hereby waives, to the maximum extent permitted by law, any such
claim. Too, Inc. hereby also waives any right, claim or entitlement that it
may have to any other type or amount of payment for any early termination of a
Prime Lease by Prime Tenant, regardless of the actual costs incurred by Too,
Inc., any loss of business to Too, Inc., any consequential damages or losses
to Too, Inc. or any disruption experienced by Too, Inc. as a result of such
early termination by Prime Tenant.
(h) Any cash payment made pursuant to this Section 18 (exclusive of
loan amounts) in connection with the termination of a store occupying
Subleased Premises is being made in cancellation of the sublease hereunder, in
accordance with Section 1241 of the Internal Revenue Code. Too, Inc. and each
Prime Tenant hereby expressly acknowledge that Prime Tenant is receiving no
present or future benefit in respect of such cancellation in connection with
the Leased Premises or other premises.
(i) Too, Inc. agrees that if it enters into any agreement or
instrument providing for an incurrence or guarantee of indebtedness for
borrowed money by Too, Inc. or any of its subsidiaries (including without
limitation any agreement or instrument relating to term loans, revolving
loans, lines of credit, reimbursement obligations in respect of letters of
credit, notes or bonds), it shall provide in such
17
agreement or instrument that all obligations of Too, Inc. or its subsidiaries
thereunder shall be subordinated to the obligations of Too, Inc. arising under
the loans contemplated by this Section 18; provided that the foregoing shall
not apply to the credit agreement to be entered into by Too, Inc. prior to the
Distribution Date in connection with the spin-off of Too, Inc. to the
shareholders of Limited, or to any refinancing thereof (unless such
refinancing provides for a maximum borrowing greater than that under the
original credit agreement).
(j) All obligations of Limited under paragraphs (b) and (e) shall
terminate if Too, Inc. fails to comply with its obligations hereunder with
respect to two or more stores.
19. Indemnity; Subrogation.
(a) Prime Tenant shall defend, indemnify and hold harmless Too, Inc.
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 Prime Tenant or any subtenant,
concessionaire or licensee of Prime Tenant (other than Too, Inc. or any of its
Affiliates), or its employees, agents, contractors or invitees in, upon, at or
from the Leased Premises exclusive of the Subleased Premises.
(b) Too, Inc. shall defend, indemnify and hold harmless Limited and
its Affiliates, employees, officers, directors, partners and agents against
and from any and all 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 without limitation 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 Too, Inc. or any subtenant,
concessionaire or licensee of Too, Inc., or its employees, agents, contractors
or invitees in, upon, at or from the Subleased Premises.
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(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 19(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 IN
WHOLE OR IN 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.
20. Required Notice Under Prime Lease.
Too, Inc. shall promptly give written notice to Prime Tenant of (i)
all claims, demands or controversies by or with the Landlord under the Prime
Lease or (ii) any injury, death or property damage arising on or about the
Subleased Premises. Prime Tenant shall promptly give written notice to Too,
Inc. of (i) all claims, demands or controversies by or with the Landlord under
the Prime Lease with respect to the Subleased Premises or (ii) any injury,
death or property damage arising on or about the Leased Premises.
21. Accepting Subleased Premises "As Is".
Too, Inc. represents that it is familiar with the Subleased Premises
and has inspected same prior to the date hereof. Too, Inc. accepts and has
accepted possession of the Subleased Premises "as is". Too, Inc. acknowledges
that, notwithstanding anything to the contrary in the Prime Lease, Prime
Tenant has made no representations or warranties with respect to the Subleased
Premises or to the condition thereof.
22. 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,
19
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 Too, Inc. of possession of the Subleased
Premises or of any part thereof or of any remainder of the term of this
Agreement shall release Too, Inc. from any of its obligations hereunder.
23. Lease Guarantees.
(a) Limited shall continue to guarantee the full amount of lease
payments under each Guaranteed Lease until any of the following occurs in
respect of a Guaranteed Lease:
(i) the initial Lease Term in respect of such Guaranteed Lease
(excluding any renewals or extensions thereunder) expires,
or such Guaranteed Lease earlier terminates according to its
terms;
(ii) the first day on which such Guaranteed Lease is amended,
extended or renewed; or
(iii) the first day on which the landlord under such Guaranteed
Lease consents to any amendment to or waiver under the
Guaranteed Lease (other than any consent, amendment or
waiver relating to the spin-off of Too, Inc. on the
Distribution Date).
Upon the earliest occurrence of any of the preceding with respect to any
Guaranteed Lease, Limited's guarantee obligations in respect of such
Guaranteed Lease shall immediately cease, and such lease shall be deemed to
have been deleted from Schedule 2 hereto.
(b) Limited shall have no obligation to provide any guarantee or
other assurance for any lease entered into, modified or amended by Too, Inc.
after the Distribution Date.
24. Amounts Payable Upon Achievement of Threshold Sales.
(a) No later than the first Sunday of each fiscal month of Limited,
Too, Inc. shall provide to Limited a data file, in a file format acceptable to
both parties, with the following information: (i) for each store occupying
Subleased Premises, the prior fiscal month's Gross Sales and (ii) for each
store which is the subject of a Guaranteed Lease, the prior fiscal month's
total sales and Excess Rent paid to third party landlords. In furtherance of
and not in limitation of the
20
foregoing, Too, Inc. shall provide to Limited
such further information as Limited may request in order to comply with
Limited's obligations to third party landlords.
(b) In addition to any other amounts payable by Too, Inc. hereunder,
Too, Inc. shall also pay to Limited such additional amounts as are set forth
in Schedule 4 hereto as consideration for Limited's guarantee of the
Guaranteed Leases and for the Prime Tenants' implicit guarantee of Subleased
Premises as to which they are the Prime Tenant. On the 14th day after the end
of each fiscal year of Limited, Limited shall furnish to Too, Inc. an invoice
of such additional amounts, calculated by Limited in accordance with Schedule
4 hereto, in respect of all Guaranteed Leases and Subleased Premises. Such
invoice shall be accompanied by sufficient supporting detail to enable Too,
Inc. to verify the calculations and the amounts due to Limited. Too, Inc.
shall pay all such amounts in full by no later than 30 days after the
submission of such invoice, whether or not all or any part of any amount so
invoiced by Limited is being disputed by Too, Inc.
25. 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 Limited or any
Prime Tenant: The Limited, Inc.
Three Limited Parkway
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(Columbus, Ohio 43230 for non-U.S. mail)
Attn: C. ▇▇▇▇▇ ▇▇▇▇,
Senior Vice President
If to Too, Inc.: Too, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Chief Financial Officer
Either party may, by notice in writing, direct that future notices or demands
be sent to a different address.
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26. Successors.
Subject to Section 11, the covenants and agreements herein contained
shall bind and inure to the benefit of Limited, each Prime Tenant and Too,
Inc. and their respective permitted successors and assigns.
27. 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.
28. 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.
29. Governing Law.
This Agreement shall be construed in accordance with, and governed
by, the laws of the State of Ohio.
30. Further Assurances.
Limited, each Prime Tenant and Too, Inc. 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
Landlord under the Prime Lease. In addition, if Too, Inc. or a Prime Tenant
desires to enter into a direct and separate lease with a Landlord 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 for a term equal to the term remaining under the Prime Lease and
is on terms at least as favorable as the terms of this Agreement, in the case
of Too, Inc., or the terms of the Prime Lease, in the case of Prime Tenant;
and provided further that the party initiating a separate lease shall (i) pay
the full amount of all Store Separation Costs relating to such premises and
(ii) perform all of the construction and other separation services related to
such premises (such construction and other separation services to be performed
in a manner which does not unreasonably interfere with the operations of the
other party hereto).
22
31. Amendment to Prime Lease.
No Prime Tenant may make any amendment to a Prime Lease that would
impair or reduce the rights or increase the obligations of Too, Inc. under
this Agreement, without the written consent of Too, Inc., except that Prime
Tenant shall have the right, without Too, Inc.'s consent, to amend the Prime
Lease to reduce or enlarge the Leased Premises so long as the size and space
of the Subleased Premises is not thereby changed, and in such event the Space
Size Ratios shall be adjusted. Prime Tenant reserves the right to amend a
Prime Lease to switch the rental payments from fixed amounts to Percentage
Basis; provided that such change shall not impair or reduce the rights or
increase the obligations of Too, Inc. under this Agreement except with the
written consent of Too, Inc. Except as otherwise provided in Section 8(c)
hereof, any amendments to a Prime Lease made after the date hereof by Prime
Tenant that increases the rights or reduces the obligations of, or grants
monetary or non-monetary inducements to, Prime Tenant shall be shared ratably
(in proportion to the parties' respective Space Size Ratios) between Prime
Tenant and Too, Inc. Prime Tenant shall furnish Too, Inc. with a copy of any
amendment to the Prime Lease.
32. Reasonable Efforts of Prime Tenants.
To the extent in this Agreement that a Prime Tenant has conveyed to
Too, Inc. such utilities, services and similar entitlements as the Landlord
may provide under a Prime Lease, or to which Prime Tenant may be entitled
under a Prime Lease, Prime Tenant agrees and covenants to use its reasonable
efforts to obtain delivery of same to Too, Inc. With respect to all such
entitlements, as well as any covenants, warranties, representations,
obligations or other agreements of the Landlord (not otherwise expressly
limited in this Agreement), Prime Tenant's "reasonable efforts" shall require
the performance by such Prime Tenant, at Too, Inc.'s reasonable request and at
Too, Inc.'s sole cost and expense, of one or more of the following:
(i) the execution by Prime Tenant and delivery to the
Landlord, promptly following receipt of Too, Inc.'s written request
therefor, of notices, requests and other similar writings; and
(ii) the institution by Prime Tenant, promptly following
receipt of Too, Inc.'s written request therefor, of arbitration (if
permitted under the Prime Lease) or legal proceedings to enforce,
interpret or define the Landlord's obligations under the Prime Lease;
provided that any legal proceedings instituted by Prime Tenant
hereunder shall be under the exclusive control of Prime Tenant and
shall include all reasonable preliminary and trial proceedings in the
court of original jurisdiction.
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Too, Inc. shall defend, indemnify and hold Limited and its Affiliates
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 Prime Tenant pursuant to this Section 32.
33. Reasonableness and Good Faith.
Whenever this Agreement grants a Prime Tenant or Too, Inc. 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.
34. Arbitration.
Except for the non-payment of rental or other charges due by Too,
Inc. under this Agreement (unless Too, Inc. first pays under protest as
provided for below), or in the event that any action or inaction taken by Too,
Inc. would cause a Prime Tenant to be in default under a Prime Lease, all
disputes and disagreements between such Prime Tenant and Too, Inc. 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 such
Prime Tenant and Too, Inc., 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 34.
35. Defaults. If Too, Inc. fails to comply with its obligations
hereunder with respect to two or more stores, then Limited and Prime Tenants
shall have the right (but not the obligation) to treat such failure as a
default by Too, Inc. of its obligations hereunder with respect to any or all
of the Subleased Premises. In such event, Limited may exercise all remedies in
respect of any or all of the Subleased Premises (whether or not such failure
relates to the Subleased Premises with respect to which the remedies are being
exercised by Limited) to
24
the same extent that the Landlord of such Subleased Premises could exercise
remedies against Prime Tenant under the relevant Prime Lease in the event of a
default by such Prime Tenant.
25
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed the day and year first written above.
THE LIMITED STORES, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
VICTORIA'S SECRET STORES, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
▇▇▇▇▇▇ NEW YORK, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
EXPRESS, LLC
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
STRUCTURE, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
THE LIMITED, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
27
TOO, INC.
By:________________________________________
Name:
Title:
ATTEST:
_________________________________
28
