Exhibit 2.5
Lane ▇▇▇▇▇▇, Inc.
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LEASE AGREEMENT
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This Lease Agreement (this "Lease") is entered into and made as of the 16th
day of August, 2001, by and between Distribution Land Corp., a Delaware
corporation (hereinafter referred to as "Landlord") and Lane ▇▇▇▇▇▇, Inc., a
Delaware corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord owns a certain office/warehouse distribution facility
containing approximately 890,188 square feet of floor space identified on
Exhibit A attached hereto and made a part hereof by this reference (the
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"Building"); and
WHEREAS, the Building is located upon an approximately 321.1 acre parcel of
land located at the intersection of East Broad Street (State Route 16) and
▇▇▇▇▇▇ Road, Reynoldsburg, Ohio, which land is depicted on Exhibit A attached
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hereto and made a part hereof by this reference (the "Campus"), which Campus is
owned and/or controlled by Landlord or an affiliate thereof; and
WHEREAS, Landlord wishes to lease to Tenant a portion of the Building as
more particularly described in Section 1.02 below (the "Premises") and to grant
to Tenant the right to utilize certain common areas and facilities located
within the Building and the Campus, all subject to the terms and conditions of
this Lease; and
WHEREAS, Tenant wishes to lease, from Landlord, a portion of the Building
and to utilize those certain common areas and facilities located within the
Building and the Campus.
NOW, THEREFORE, in consideration of the premises described above and the
mutual promises set forth herein, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
ARTICLE 1
Lease Of Premises
Section 1.01. Lease Of Premises. Landlord, in consideration of the rents
and covenants hereinafter set forth, does hereby demise, let and lease to
Tenant, and Tenant does hereby hire, take and lease from Landlord, on the terms
and
conditions hereinafter set forth, the Premises, to have and to hold the same,
with all appurtenances unto Tenant for the Term hereinafter specified.
Section 1.02. Basic Lease Provisions.
(a) Building Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(b) Building Description: an office/warehouse distribution facility,
containing approximately 129,800 square feet of office space, 750,356 square
feet of warehouse/distribution space (the "Distribution Space") and 10,032
square feet of Building Common Area (as hereinafter defined).
(c) Premises Description: the floors of the Building on which the Premises
are located and the square footage of the Premises are depicted on the floor
plan attached hereto as Exhibit B and made a part hereof by this reference.
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As used herein, the term "Office" means that portion of the Premises consisting
of the office building (containing approximately 129,800 square feet), and the
term "Distribution Center" means that portion of the Distribution Space which
Tenant is leasing (which the parties agree is 513,665 square feet).
(d) Term: Three (3) years (plus a partial month, as the case may be),
beginning on the date hereof (the "Commencement Date") and ending, subject to
Section 3.01 herein, on the last day of the calendar month following the third
anniversary of the Commencement Date (the "Expiration Date").
(e) Annual Rent:
(i) Office space and Pro Rata Share of Building Common Areas -
$16.97 per square foot, or $2,372,949.04;
(ii) Distribution Center - $4.57 per square foot, or
$2,347,449.05;
(iii) Total Annual Rent of $4,720,398.09; and
(iv) The Annual Rent shall be subject to periodic adjustments as
provided in Section 4.02 of this Lease.
(f) Monthly Installments of Rent: $393,366.51.
(g) Renewal Option(s): None.
(h) Addresses for Notices:
Tenant: Lane ▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
with a copy to:
Lane ▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Landlord: Distribution Land Corp.
Three Limited Parkway
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Real Estate Department
with a copy to:
The Limited, Inc.
Three Limited Parkway
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate General Counsel
(i) Use: office/warehouse distribution use related to distribution for
retail sale of men's, women's and children's apparel and accessory items of a
type typically sold in Lane ▇▇▇▇▇▇ stores, and for all administrative activities
relating thereto.
Section 1.03. Description Of The Building, The Premises And The Common
Areas.
(a) The Building. The Building is depicted on the attached Exhibit A. The
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address and description of the Building are specified in Items A and B of the
Basic Lease Provisions (which are set forth in Section 1.02 of this Lease).
(b) The Premises. The Premises consist of space described in Item C of the
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Basic Lease Provisions, and which space: (i) is located on the floor or floors
of the Building designated on the attached Exhibit B, (ii) is located in one or
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more areas or parts of each such floor, and (iii) is bound by the proposed or
existing demising walls therefor, the approximate locations of such demising
walls and space being marked in color or cross-hatched and shown on the diagram
of the floor plan for each such floor, such diagram being attached to this Lease
as Exhibit B and made a part hereof by this reference. The Premises also include
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that portion of the Building Common Areas (as defined below) which has been
allocated to Tenant on the basis of the square footage of office space
designated for Tenant's use in items (i), (ii) and (iii) above divided by the
total square footage of office space located within the Building ("Pro Rata
Share of Building
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Common Areas"). The approximate number of square feet contained in the area
which comprises the Premises is also specified on Exhibit B.
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Tenant shall be the sole occupant of the Office except for
approximately 8,000 square feet of Office space (the "TLI Travel Office Space")
which shall be occupied by the travel department of The Limited, Inc. ("TLI
Travel"). TLI Travel shall (and Landlord or an affiliate shall cause TLI Travel
to) vacate the TLI Travel Office Space prior to November 1, 2001; if TLI Travel
fails to vacate the TLI Travel Office Space prior to November 1, 2001, then from
and after November 1, 2001 until such time as TLI Travel shall have vacated or
been removed from the TLI Travel Office Space, the rental adjustment described
in clause (z) below shall be calculated at 125% of the current rental rate per
square foot. There shall be an adjustment in the Monthly Installment of Rent
payable by Tenant for such period as TLI Travel is in possession of the TLI
Travel Office Space; such adjustment shall be based on (x) the area of the TLI
Travel Office Space (based on square feet), (y) the number of days TLI Travel is
in possession of the TLI Travel Office Space and (z) the rental rate per square
foot of Office space set forth in Section 1.02 of this Lease.
(c) Common Areas. The Building is located within, and constitutes a part
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of, the Campus. The Campus has been improved with the Building, additional
buildings and structures not subject to this Lease, security buildings and
facilities and roadways, driveways, walkways, parking areas, loading areas,
fences, walls, hedges, plantings, poles, ponds, lakes, signs, utility
improvements, trees, plantings and other landscaping features (the Campus,
excluding the Building, being referred to herein as the "Campus Common Areas").
The Building contains certain areas or parts which are designated for use in
common by all of the tenants of the Building and their respective employees,
agents, customers, and invitees. Such areas include entrances, exits and doors,
lobbies, hallways, corridors and stairwells, elevators and restrooms (all of
which are referred to herein as the "Building Common Areas"), but excluding
Special Amenities (as defined below). The Campus Common Areas and the Building
Common Areas are sometimes referred to herein collectively as the "Common
Areas".
ARTICLE 2
Common Areas
Section 2.01. Use Of Building Common Areas. Landlord hereby gives to Tenant
and its employees, agents, customers and invitees, the nonexclusive right to use
the Building Common Areas in common with and subject to the rights given to
other tenants of the Building.
Section 2.02. Use Of Campus Common Areas. Subject to Section 2.03 below and
to Landlord's right at any time to use the Campus Common Areas for
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its own purposes, Landlord hereby gives to Tenant and its employees, agents,
customers and invitees, the nonexclusive right to use the Campus Common Areas.
Except as otherwise set forth herein, provided Tenant shall always have at least
one point of access to the Campus, Landlord and Tenant agree that Landlord shall
have the right, at any time and in Landlord's sole discretion, but with
reasonable advance notice to Tenant, to alter, change or reconfigure (including,
without limitation, closing) access gates or other entrances to the Campus.
Section 2.03. Rules And Regulations For Common Areas. The Campus Common
Areas and the Building Common Areas shall at all times be subject to the
exclusive management and control of Landlord which shall have the right, from
time to time, to establish, modify and enforce reasonable, uniform and non-
discriminatory rules and regulations with respect to all such Common Areas, and
the use of such Campus Common Areas and the Building Common Areas by Tenant, its
subtenants and their respective employees, agents, customers and invitees shall
be subject to such rules and regulations. Such rules and regulations may
include, but shall not be limited to, restrictions on parking, hours of
operation, access routes, hours of access to the Building and the Campus, rules
with respect to the Building and such other matters as may be deemed appropriate
by Landlord from time to time; provided, Tenant shall always have access via the
Campus Common Areas to the Premises, and the parking area immediately adjacent
to the Building (as shown on Exhibit A), 24 hours per day, 7 days per week, and
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Landlord shall not reduce the size of such parking area, nor shall Landlord
shuttle its employees from other buildings in the Campus to such parking area
for purposes of parking.
Section 2.04. Changes In Common Areas. Subject to the provisions of Section
2.03, (i) Landlord may do and perform such acts in and to the Campus Common
Areas and the Building Common Areas, respectively, as it shall determine to be
advisable; (ii) Landlord hereby reserves the right to make reconfigurations,
alterations, additions, deletions or changes to the Campus Common Areas and
Building Common Areas, respectively, including, but not limited to, changes in
the size and configuration of said Common Areas; and (iii) Landlord reserves the
right to restrict and limit the use of the Campus Common Areas and Building
Common Areas, respectively, by Tenant, its subtenants and their respective
employees, agents, customers and invitees.
Section 2.05. Maintenance Of Common Areas. Subject to the provisions of
Section 18.01 hereof, Landlord shall adequately maintain the Campus Common Areas
and Building Common Areas, respectively, in a good and usable condition
throughout the Term of this Lease. Landlord shall remove ice and snow from the
sidewalks and parking areas and shall maintain plantings and repair and repave
the parking areas as necessary to keep the same in good and usable condition.
Section 2.06. Common Area Capital Improvements. Landlord may make capital
improvements, at Landlord's sole cost and expense (except as otherwise
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provided herein) to the Campus Common Areas and Building Common Areas,
respectively.
ARTICLE 3
Term And Possession
Section 3.01. Term. (a) The Term of this Lease shall be for the period of
years and months specified in Item D of the Basic Lease Provisions; and shall
begin and end on the Commencement Date and Expiration Date, respectively,
specified in Item D of the Basic Lease Provisions, unless the Term of this Lease
is renewed, modified or terminated as provided elsewhere herein.
(b) Notwithstanding the provisions of subsection (a) above, Tenant
shall have the right to terminate this Lease with respect to the entire
Premises, the Office space only or the Distribution Center only, effective upon
the expiration of or any time after the 24th month of the Term hereof, upon at
least 15 months' prior written notice (the "Termination Notice") to Landlord.
Upon timely delivery of the Termination Notice, this Lease shall terminate on
the termination date set forth in the Termination Notice with respect to all or
such portion of the Premises specified in the Termination Notice.
Section 3.02. Tenant's Acceptance Of The Premises. Except as otherwise
provided herein, Tenant hereby accepts the Premises in an "as is" condition and
acknowledges that Landlord has made no representations or warranties with
respect thereto, and that Tenant has inspected the Premises and found it to be
in satisfactory condition.
Section 3.03. Surrender Of The Premises. Upon the expiration or earlier
termination of this Lease, or upon the exercise by Landlord of its right to re-
enter the Premises without terminating this Lease, Tenant shall immediately
surrender the Premises to Landlord, together with all alterations, improvements
and other property as provided elsewhere herein, in broom-clean condition and in
good order, condition and repair, except for ordinary wear and tear, damage by
fire or other casualty, repairs that Landlord is required to make and damage
which Tenant is not obligated to repair, failing which Landlord may restore the
Premises to such condition at Tenant's expense. Upon such expiration or
termination, Tenant shall, provided Tenant is not in default and unless
prohibited from doing so by other provisions of this Lease, remove its
equipment, distribution equipment, office equipment, personal property and trade
fixtures. Tenant shall promptly repair any damage caused by any such removal,
and shall restore the Premises to the condition existing prior to the
installation of the items so removed, ordinary wear and tear and damage which
Tenant is not obligated to repair excepted. If Tenant fails to remove any and
all such equipment, distribution equipment, office equipment, personal property
and trade fixtures from the Premises on the Expiration Date or earlier
termination of this Lease, the
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same shall become the Property of Landlord, unless Landlord elects to require
their removal, in which case Tenant shall, at its cost, promptly remove the same
and restore the Premises to its prior condition.
Section 3.04. Holding Over. In the event that Tenant shall not immediately
surrender the Premises on the Expiration Date of the Term hereof, Tenant shall,
by virtue of the provisions hereof, become a tenant by the month at a monthly
rent equal to 125% of the monthly rent in effect during the last month of the
Term of this Lease, which monthly tenancy shall commence with the first day next
after the Expiration Date. Tenant, as a monthly tenant, shall be subject to all
of the terms, conditions, covenants and agreements of this Lease. Tenant shall
give to Landlord at least thirty (30) calendar days written notice of any
intention to quit the Premises, and Tenant shall be entitled to thirty (30)
calendar days written notice to quit the Premises, unless Tenant is in default
hereunder, in which event Tenant shall not be entitled to any notice to quit,
the usual thirty (30) calendar days notice to quit being hereby expressly
waived. Notwithstanding the foregoing provisions of this Section 3.04, in the
event that Tenant shall hold over after the expiration of the Term of this
Lease, and if Landlord shall desire to regain possession of the Premises
promptly at the expiration of the Term of this Lease, then, at any time prior to
Landlord's acceptance of rent from Tenant as a monthly tenant hereunder,
Landlord, at its option, may forthwith re-enter and take possession of the
Premises by any legal process.
ARTICLE 4
Rent
Section 4.01. Rent.
Monthly Rent. Commencing on the Commencement Date, Tenant shall pay to
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Landlord, as Rent for the Premises, the annual sum specified in Item E of the
Basic Lease Provisions, payable in equal consecutive monthly installments as
specified in Item F of the Basic Lease Provisions, in advance, on or before the
first day of each and every calendar month during the Term of this Lease;
provided, however, that if the Commencement Date or the Expiration Date shall be
a day other than the first day of a calendar month, the Rent installment for
such fractional month shall be prorated on the basis of the number of days
during the month this Lease was in effect in relation to the total number of
days in such month.
Section 4.02. Rent Adjustment.
(a) CPI Adjustments during the Initial Term. Commencing on the first (1st)
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anniversary of the Commencement Date and continuing on the same date every year
thereafter during the Initial Term, the Rent due and payable to Landlord shall
be adjusted for the next succeeding year. The adjusted Rent for
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each year shall be equal to the Rent paid during the immediately preceding
twelve (12) month period (the "lease year") increased by a percentage equal to
the percentage increase in the CPI (as hereinafter defined) computed by
comparing the CPI figure for that month which is two (2) months prior to the
adjustment date (the "adjustment month") with the CPI figure for the month
occurring twelve (12) months prior to the adjustment month (the "base month").
For example, in computing the percentage increase for the lease year commencing
January 31, 2002, the percentage increase in the CPI would be determined by
comparing the CPI figure for November, 2001, the adjustment month, with the CPI
figure for November, 2000, the base month, and similar comparisons would be made
using the CPI figures for adjustment months and base months every year
thereafter. For the purposes hereof, "CPI" shall mean the Consumer Price Index,
published by the Bureau of Labor Statistics of the United States Department of
Labor, in the column for "all items" in the table titled "Consumer Price Index
for all Urban Consumers: U.S. City average, 1982-1984 = 100".
If the CPI at any time herein is no longer published or issued, Landlord
and Tenant shall agree on such other index as is then generally recognized for
determination of purchasing power in the United States.
(b) Extraordinary Capital Expenditures. If, during the Term of this Lease,
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Landlord should agree to make any extraordinary Capital Improvements to the
Premises (which shall exclude any improvements made in connection with
Landlord's normal provision of maintenance and repair of the Building and the
Premises hereunder as provided in Section 8.01 of this Lease), such
extraordinary Capital Improvements being the result of Tenant's request, then
Landlord may either (x) immediately charge Tenant for the costs of all such
Capital Improvements, which costs shall be paid by Tenant within 30 days of
Landlord's invoice or (y) add to the Rent (to be paid in monthly installments),
an amount equal to the annual depreciation or amortization with respect to the
cost of such equipment or capital improvement, as determined by Landlord in
accordance with generally accepted accounting principles, together with interest
on such cost or the unamortized balance thereof at the rate as may have to be
paid by or accrued on the books of Landlord on the unamortized balance.
(c) Extraordinary Services. If, during the Term of this Lease, Landlord
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provides to Tenant services, including but not limited to repair, maintenance
and janitorial services, (i) in excess of those normally required to maintain
the Building in a manner consistent with those services provided to other
occupants of the Campus, and (ii) such extraordinary services are the result of
or made necessary as a result of Tenant's activities within the Premises, then
Landlord shall have the right to calculate the cost of such extraordinary
services and to charge Tenant the cost thereof. All such charges shall be
calculated and charged to Tenant, on a monthly basis, to be paid by Tenant as
Rent hereunder.
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Section 4.03. Late Payment Service Charge; Interest. In the event any
installment of Rent, or any other amount which may become due under this Lease
is not paid when due, and such nonpayment continues for a period of ten (10)
days after Landlord gives to Tenant written notice of such nonpayment, then, for
each and every such payment, Tenant shall pay interest on the amount not timely
paid at the rate of the lesser of (i) eighteen percent (18%) per annum or (ii)
the maximum rate allowed under applicable law, from the due date of such payment
until paid. The provisions of this Section 4.03 shall not be construed to
extend the date for payment of Rent, or any other amount which may become due
under this Lease, or to relieve Tenant of its obligations to pay all such items
at the time or times herein stipulated, and neither demand for, nor collection
by Landlord of, late payment service charges and interest pursuant to this
Section 4.03 shall be construed as a cure of any default in payment by Tenant.
ARTICLE 5
Use Of Premises
Section 5.01. Specific Use. The Premises shall be occupied and used
exclusively for the purposes specified in Item I of the Basic Lease Provisions
and for purposes incidental thereto, and shall not be used for any other
purposes.
Section 5.02. Covenants Regarding Use. In connection with its use of the
Premises, Tenant agrees to do the following:
(a) Tenant shall use the Premises and conduct its business therein in a
safe, careful, reputable and lawful manner; shall keep any garbage, trash,
rubbish or other refuse in containers within the interior of the Premises until
removed and placed in a dumpster or other authorized container for the deposit
of garbage and refuse, which shall be located in an area designated by Landlord.
(b) Tenant shall not commit, nor allow to be committed, in, on or about
the Premises any act of waste, including any act which might deface, damage or
destroy the Premises or any part thereof; use or permit to be used within the
Premises any hazardous substance, equipment, or other thing which might cause
injury to person or property or increase the danger of fire or other casualty
in, on or about the Premises; or permit any objectionable or offensive noise or
odors to be emitted from the Premises. Notwithstanding the foregoing, Landlord
acknowledges that Tenant will utilize certain distribution equipment which, but
for this sentence, might be deemed to violate this provision and use of such
equipment is expressly permitted.
(c) Tenant shall not use the Premises, or allow the Premises to be used,
for any purpose or in any manner other than the permitted uses which would, in
Landlord's opinion, invalidate any policy of insurance now or hereafter carried
on the Premises or the Building or increase the rate of premiums payable on any
such
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insurance policy. Landlord acknowledges that the Use contemplated in Section
1.02 will not invalidate such insurance policies or increase the premiums
thereunder. Should Tenant fail to comply with this covenant, Landlord may, at
its option, require Tenant to stop engaging in such activity or to reimburse
Landlord as additional rent for any increase in premiums charged during the Term
of this Lease on the insurance carried by Landlord on the Premises and the
Building and attributable to the use being made of the Premises by Tenant.
Section 5.03. Access To And Inspection Of The Premises. Landlord, its
employees and agents, shall have the right to enter any part of the Premises, at
all reasonable times during normal business hours, after reasonable notice
(except for repairs, etc., pursuant to clause (iii) below, for which no advance
notice shall be necessary for Landlord's dedicated maintenance personnel to
enter the Premises in connection with the provision of such services in
accordance with Section 8.02 below), for the purpose of (i) examining or
inspecting the same, (ii) showing the same to prospective purchasers, mortgagees
or tenants, and (iii) making such repairs, alterations or improvements to the
Premises and the Building as Landlord may deem necessary or desirable; provided,
however, Landlord agrees that Tenant may establish reasonable security
procedures (including requiring a representative of Tenant to accompany Landlord
(and its agents or invitees) during such inspections or visitations) for the
purpose of, or in connection with, the protection of Tenant's trade secrets and
other proprietary information; provided, further, if Landlord has complied with
the notice requirements described above, then Landlord's access rights as
described above shall not be conditioned by or otherwise dependent upon Tenant's
exercise or enforcement (or non-exercise or non-enforcement) of Tenant's
reasonable security procedures, and Tenant shall have an affirmative duty to
exercise or enforce its reasonable security procedures (if Tenant shall so
elect), including providing a representative to accompany Landlord (and its
agents or invitees) during such inspections. Landlord shall incur no liability
to Tenant for such entry, except with respect to the gross negligence or
intentional, wrongful acts or omissions of Landlord, its agents, employees and
invitees, nor shall such entry constitute an eviction of Tenant or a termination
of this Lease, or entitle Tenant to any abatement of rent therefor.
Section 5.04. Compliance With Laws. Tenant shall comply with all laws,
statutes, ordinances, rules, regulations and orders of any federal, state,
municipal, or other government or agency thereof having jurisdiction over and
relating to the manner in which Tenant uses and occupies of the Premises,
including any such laws, statutes or regulations requiring modifications or
alterations to the Premises, provided, Landlord agrees that Tenant shall have no
obligation to modify, alter, repair or otherwise perform work at the Premises
with respect to conditions that exist at the Premises as of the date hereof.
Landlord makes no representation or warranty with respect to compliance with
laws for the Campus, the Building or the Premises, except and only to the extent
as such representations and warranties have been made by the "Seller" or "The
Limited" pursuant to the Stock Purchase Agreement dated as of July 9, 2001 among
The Limited, Inc., Charming Shoppes,
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Inc., Venice Acquisition Corporation and LFAS, Inc. (the "Purchase Agreement").
Section 5.05. Rules And Regulations. The Building shall at all times be
subject to the management and control of the Landlord, and Landlord shall have
the right, from time to time, to establish, modify and enforce reasonable,
uniform and non-discriminatory rules and regulations with respect to the
Building, and the use of the Building by Tenant, its subtenants and their
respective employees, agents, customers and invitees shall be subject to such
rules and regulations. Such rules and regulations may include, but shall not be
limited to, restrictions upon noise levels within the Building, load placement
and utility usage.
ARTICLE 6
Utilities, Equipment Maintenance And Other Services
Section 6.01. Electric, Gas And Water. Landlord, or Limited Logistics
Services, Inc. ("LLS"), acting as Landlord's agent, shall contract with the
appropriate public utilities companies or other providers supplying electric,
gas, water, sanitary sewer and all other utilities and services to the Premises
or to Tenant and shall pay directly all charges for such services from and after
the Commencement Date. Thereafter, Landlord or LLS shall reasonably allocate
these utility or service charges attributable to the Premises or to Tenant and,
on a periodic basis, provide to Tenant a written statement detailing Tenant's
allocation thereof, provided Landlord agrees that utility charges shall be
billed to Tenant on a pass-through basis (based on Landlord's actual cost for
such utilities), and there shall be no imposition of any overhead, processing or
other like charges with respect to such utility charges.
Landlord and Tenant agree that (a) with respect to the Office space,
such charges shall be based on the ratio of the Office space occupied by Tenant
(measured in square feet) over the entire square footage of the Office space,
provided after the date on which TLI Travel vacates the TLI Travel Office Space,
Tenant shall pay 100% of such utility and service charges attributable to the
Office space; and (b) with respect to the Distribution Center, (i) during such
time as Tenant is the sole occupant of the Distribution Space, Tenant shall pay
100% of the utility and service charges attributable to the Distribution Space,
less the applicable Vacancy Credit (as defined below) and (ii) during such time
as another tenant or tenants shall occupy any part of the Distribution Space,
Tenant shall pay a fraction of the utility and service charges for the
Distribution Space, such fraction being the square footage of the Distribution
Center over the square footage of the Distribution Space occupied by Tenant and
such other tenant(s) (which area Tenant acknowledges may be less than the area
(measured in square feet) of the entire Distribution Space), less the applicable
Vacancy Credit; provided, however, if any other tenant's use of, or business
operations or activities in, such tenant's portion of the Distribution Space is
materially greater
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than Tenant's activities in or use of the Distribution Center, then Landlord and
Tenant agree to cooperate to determine a reasonable allocation of utility and
service charges as between Tenant and such other tenant(s), which determination
shall take into account Tenant's historical usage of utilities and services at
the Distribution Center (with due consideration given to significant factors
including, without limitation, seasonal variations and "peak" usage cycles
during the course of a calendar year). The term "Vacancy Credit" means, for each
month during the term of this Lease, (x) if no tenant other than Tenant occupies
any portion of the Distribution Space, $2,500 or (y) if a tenant or tenants
other than the Tenant occupies any portion of the Distribution Space, $2,500
less the product obtained by multiplying $2,500 by a fraction the numerator of
which is the square footage of the Distribution Space occupied by such other
tenant(s) and the denominator of which is 236,691. The Vacancy Credit shall be
appropriately adjusted to reflect any occupancy for only a portion of a month
Tenant shall pay to Landlord or LLS, as appropriate, within fifteen (15)
days of Tenant's receipt of the written statement therefor, Tenant's share of
all such utility and service charges as determined above.
Section 6.02. Equipment Maintenance. LLS shall provide all maintenance as
is required to or deemed advisable for Tenant's Distribution Center equipment
located within the Premises. Tenant shall pay directly to LLS all sums charged
by LLS in connection with such equipment maintenance.
Section 6.03. Janitorial And Refuse Collection Service. Landlord shall
contract for janitorial and refuse collection services for the Premises and
shall pay for all charges for such services.
Section 6.04. Discontinuances And Interruptions Of Utility Services.
Neither Landlord nor LLS shall be liable to Tenant in damages or otherwise (i)
if any utilities shall become unavailable from any public utility company,
public authority, or any other person supplying or distributing such utility, or
(ii) except and only to the extent of Landlord's gross negligence or willful
misconduct, for any interruption in any utility service (including, without
limitation, any heating, ventilation or air conditioning) caused by the making
of any necessary repairs or improvements or by any cause beyond Landlord's and
LLS's reasonable control, and the same shall not constitute a termination of
this Lease or an eviction of Tenant.
Section 6.05. Cafeteria, Mail Room And Reception Services. Included within
the Premises are areas designated for use as the cafeteria and the mail room.
Excluded from the Premises, but comprising part of the Building Common Areas, is
the reception area (the cafeteria, mailroom and reception area being referred to
herein as the "Special Amenities"). Except to the extent cafeteria and security
services are provided pursuant to the Services Agreement dated the date hereof
between The Limited, Inc. and LBH, Inc. ("LBH"), Tenant shall, in its
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reasonable discretion and in a uniform and non-discriminatory manner, maintain,
staff and operate the Special Amenities, including providing security services,
for the benefit of all tenants within the Building, subject to Section 2.01 of
this Lease. Tenant will also control the Special Amenities for purposes of
decorating and equipping the areas in which each of the Special Amenities is
located. Tenant will charge directly the other tenants within the Building for
the use of the Special Amenities. Neither Landlord nor LLS shall be liable to
Tenant or any other tenant in the Building as a result of Tenant's operation of
the Special Amenities.
Section 6.06. Campus Security Services. Tenant will comply with the
customary and reasonable directives and procedures of The Limited, Inc.'s
security operations.
ARTICLE 7
Signs
Section 7.01. Signs. Tenant shall not inscribe, paint, affix or display any
signs, advertisements or notices on the Premises, the Building, or the Campus
without Landlord's prior written consent, which consent Landlord shall have no
obligation to give and which may be given or withheld in Landlord's sole
discretion; provided, Landlord hereby approves Tenant's signs that exist at the
Campus, the Building and/or the Premises, as the case may be, as of the date
hereof.
ARTICLE 8
Repairs, Maintenance, Alterations, Improvements And Fixtures
Section 8.01. Repair And Maintenance Of Building. Landlord shall, at
Landlord's sole cost and expense (except as otherwise provided herein), keep and
maintain the Building (including all doors, whether interior or exterior, any
plate glass in the exterior walls and doors, the roof, exterior and interior
structural walls, and the foundation) and the electrical (including replacing
light bulbs), plumbing (including maintenance and repairs of public restrooms),
heating, ventilation and air conditioning systems serving the Building in good
order, condition and repair, and shall make all necessary repairs to the
Building and the electrical, plumbing, heating, ventilation and air conditioning
systems serving the Building, and will make all replacements from time to time
required thereto. Such repair and maintenance shall be consistent with the
standards Landlord provides for all other buildings in the Campus and which have
previously been customarily provided to Tenant.
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Section 8.02. Repair And Maintenance Of Premises. Landlord shall, at
Landlord's sole cost and expense (except as otherwise provided herein), provide
cleaning, janitorial, maintenance, repair and restoration services to the
Premises. If a repair is needed to so maintain the Building, then Tenant shall
give to Landlord verbal notice, and as soon thereafter as possible confirming
written notice, of such need for repair. Within a reasonable period of time
thereafter, Landlord shall examine the item or matter described in Tenant's
notice, and if Landlord should determine that such item or matter is in need of
repair, Landlord shall make such repair. Tenant acknowledges that the personnel
in charge of maintaining and repairing the Building and the Premises are located
in the Building on an ongoing basis and, therefore, such maintenance personnel
may perform their maintenance and repair duties (as described above) including,
without limitation, entering any part of the Premises in connection with the
provision of such services, without prior notice to Tenant.
Section 8.03. Alterations Or Improvements. Tenant shall neither make, nor
permit to be made, any alterations or improvements to the Premises without
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed, except as otherwise provided
below. Notwithstanding the foregoing, Tenant may, without Landlord's consent
but upon prior written notice to Landlord (which notice shall include all
proposed plans, drawings, etc. and such other information reasonably requested
by Landlord), relocate and/or remove interior partitions so as to create new
space or re-allocate existing space and redecorate offices, including non-
structural rearrangement of light fixtures and HVAC ductwork (to the extent such
rearrangement of HVAC ductwork will not, in the reasonable judgment of Landlord,
adversely impact other areas of the Premises or the Building); provided,
however, (i) Tenant shall not perform any structural alterations (including,
without limitation, any work to the Building Lobby and the HVAC systems which
does not meet the criteria set forth above) without Landlord's consent, which
consent may be granted or withheld in Landlord's sole discretion) and (ii)
subject to the provisions of the last sentence of this Section 8.03, Tenant
shall restore the Premises to its original condition at Tenant's sole cost and
expense (including repairing any damages resulting therefrom) on or prior to the
expiration of the Term hereof or sooner termination of this Lease; provided,
further, this clause (ii) shall not apply to the non-structural alterations
described above with respect to the relocation or removal of interior partitions
(including doorways), light fixtures or HVAC ductwork as well as office
redecoration,. If Tenant shall make any such alterations or improvements,
Tenant shall make the same in accordance with all applicable laws and building
codes, in a good and workmanlike manner and in quality equal to or better than
the original construction of the Building, and shall comply with such
requirements as Landlord considers necessary or desirable, including, without
limitation, requirements as to the manner in which and the times at which such
work shall be done and the contractor or subcontractors to be selected to
perform such work. Tenant shall promptly pay all costs attributable to
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such alterations and improvements and shall indemnify Landlord against any
mechanics' liens or other liens or claims filed or asserted as a result thereof
and against any costs or expenses which may be incurred as a result of building
code violations attributable to such work. Tenant shall promptly repair any
damage to the Premises and the Building caused by any such alterations or
improvements. Any alterations or improvements to the Premises, except movable
equipment and trade fixtures, shall become a part of the realty and the property
of Landlord, and shall not be removed by Tenant. Notwithstanding anything to the
contrary herein, Landlord agrees that if Landlord's consent is required in
connection with any alterations or improvements by Tenant, and Landlord grants
such consent to Tenant pursuant to clause (i) above, Landlord shall at the time
such consent is granted notify Tenant whether Tenant shall be required (or not
required) to remove such alteration or improvement at the end of the Term
hereof.
Section 8.04. Trade Fixtures. Any trade fixtures installed in the Premises
by Tenant at its own expense, such as movable partitions, counters, shelving,
and the like, may and, at the request of Landlord, shall be removed on the
Expiration Date or earlier termination of this Lease, provided that Tenant is
not then in default, that Tenant bears the cost of such removal, and further
that Tenant repairs, at its own expense, any and all damage to the Premises and
the Building resulting from such removal. If Tenant fails to remove any and all
such trade fixtures from the Premises on the Expiration Date or earlier
termination of this Lease, all such trade fixtures shall become the property of
Landlord, unless Landlord elects to require their removal, in which case Tenant
shall, at its cost, promptly remove same and restore the Premises to its prior
condition.
ARTICLE 9
Fire Or Other Casualty; Casualty Insurance
Section 9.01. Damage Or Destruction By Casualty. If the Building should be
substantially destroyed or damaged (which, as used herein, means destruction or
material damages to at least fifty percent (50%) of the Building) by fire or
other casualty, then either party hereto may, at its option, terminate this
Lease by giving written notice thereof to the other party within thirty (30)
calendar days after the date of such casualty. In such event, all Rent due
under this Lease shall be apportioned to and shall cease as of the date of such
casualty, and Tenant shall be given a reasonable period of time, not to exceed
thirty (30) calendar days after written notice of termination under this Section
9.01, in which to remove its trade fixtures and personal property, whereupon
both parties shall be released from all further obligations and liability
hereunder (except for any obligations previously incurred hereunder). If
neither party exercises this option, then the Building shall be reconstructed
and restored at Landlord's expense, to substantially the same condition as it
was prior to the casualty; provided, however, that, if Tenant has made any
additional improvements pursuant to Section 8.03,
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Tenant shall reimburse Landlord for the cost of reconstructing the same. In the
event of such reconstruction, all Rent due under this Lease shall be abated from
the date of the casualty until substantial completion of the reconstruction
repairs and Landlord has delivered possession of the Premises to Tenant, and
this Lease shall continue in full force and effect for the balance of the Term.
Landlord shall use reasonable diligence in completing such reconstruction
repairs.
Section 9.02. Casualty Insurance. Landlord shall obtain and pay for
insurance against fire and other casualty in respect of the Building; provided,
Tenant shall reimburse Landlord for any increases in Landlord's insurance
premiums caused by Tenant's activities on the Premises. Landlord shall not be
responsible for, and shall not be obligated to insure against, any loss of or
damage to any personal property of Tenant, or any trade fixtures installed by or
paid for by Tenant in the Premises, or any additional improvements which Tenant
may construct in the Premises, as provided in Section 8.03.
Section 9.03. Waiver Of Subrogation. Landlord and Tenant each hereby
waive any and all right that they may have to recover from the other damages for
any loss occurring to them by reason of any act or omission of the other, but
only to the extent that the waiving party is actually compensated therefor by
insurance; provided that this waiver shall be effective only with respect to
loss or damage occurring during such time as the waiving party's coverage under
the appropriate policy of insurance is not adversely affected by this waiver.
If, in order to avoid such adverse effect, an endorsement must be added to any
insurance policy required hereunder, Landlord and Tenant shall cause such
endorsement immediately to be added and thereafter maintained throughout the
Term of this Lease.
ARTICLE 10
General Public Liability, Indemnification And Insurance
Section 10.01. Indemnification. Tenant shall indemnify Landlord and hold
it harmless from any and all liability for any loss, damage or injury to person
or property occurring in, on or about the Campus, the Building and the Premises,
arising out of the acts or omissions of Tenant, its employees, agents, customers
and invitees on and after the date hereof, except for that caused by the gross
negligence or intentional wrongful acts of Landlord and its employees, agents,
customers and invitees; and Tenant hereby releases Landlord from any and all
liability for the same. Landlord shall indemnify Tenant and hold it harmless
from any and all liability for any loss, damage or injury to person or property
resulting from the gross negligence or intentional wrongful acts of Landlord and
its employees, agents, customers and invitees on and after the date hereof; and
Landlord hereby releases Tenant from any and all liability for the same. The
obligation to indemnify hereunder shall include the duty to defend against any
claims asserted by reason of such loss, damage or injury and to pay any
16
judgments, settlements, costs, fees and expenses, including attorneys' fees,
incurred in connection therewith.
Section 10.02. Tenant's Insurance. Tenant, shall, at all times during the
Term of this Lease, carry, at its own expense, policies of insurance, with such
coverages and in such amounts as are reasonably acceptable to Landlord, and
consistent with limits generally carried for similar premises in the Campus,
covering Tenant's general liability and property and fixtures located in the
Premises. Each policy of insurance shall expressly provide that the policy
shall not be cancelled or amended without thirty (30) days written notice to
Landlord. All liability insurance required hereunder shall name Landlord as an
additional insured. Tenant shall deliver a certificate evidencing such
insurance to Landlord on or prior to the Commencement Date. Landlord agrees
that Tenant's insurance requirements under this Section 10.02 may be satisfied
with an umbrella policy of coverage.
ARTICLE 11
Eminent Domain
Section 11.01. Eminent Domain. If the whole or any material part of the
Building shall be taken for public or quasi-public use by a governmental or
other authority having the power of eminent domain, or shall be conveyed to such
authority in lieu of such taking, and if such taking or conveyance shall cause
the remaining part of the Building to be untenantable and inadequate for use by
Tenant for the purpose for which it was leased, then Tenant may, at its option,
terminate this Lease as of the date Landlord is required to surrender possession
of the Building. In such event, all Rent due under this Lease shall be
apportioned to and shall cease as of the date Landlord is required to surrender
possession of the Building, and Landlord and Tenant shall be released from all
further obligations and liability hereunder (except for any obligations
previously incurred hereunder). If a part of the Building shall be taken or
conveyed, but the remaining part is tenantable and adequate for Tenant's use,
Landlord shall make such repairs, alterations and improvements (exclusive of
repairs, alterations or improvements to tenant improvements, if any, installed
by Tenant pursuant to Section 8.03) as may be necessary to render the part not
taken or conveyed tenantable. If such taking or conveyance includes any part of
the Premises, the Rent shall be reduced in proportion to the part of the
Premises so taken or conveyed. All compensation awarded for such taking or
conveyance shall be the property of Landlord, without any deduction therefrom
for any present or future estate of Tenant, and Tenant hereby assigns to
Landlord all of its right, title and interest in and to any such award.
However, Tenant shall have the right to recover from such authority, but not
from Landlord, such compensation as may be awarded to Tenant on account of
moving and relocation expenses and depreciation to and removal of Tenant's
17
trade fixtures and personal property and alterations or tenant improvements, if
any, installed by Tenant pursuant to Section 8.03.
ARTICLE 12
Liens
Section 12.01. Liens. If, because of any act or omission of Tenant or
anyone claiming by, through or under Tenant, any mechanic's lien or other lien
shall be filed against the Campus, the Building, the Premises or against other
property of Landlord (whether or not such lien is valid or enforceable as such),
Tenant shall, at its own expense, cause the same to be discharged or bonded of
record within a reasonable time, not to exceed thirty (30) calendar days after
the date of the filing thereof, and shall also indemnify Landlord and hold it
harmless from any and all claims, losses, damages, judgments, settlements, costs
and expenses, including attorneys' fees, resulting therefrom or by reason
thereof.
ARTICLE 13
Assignment And Subletting
Section 13.01. Assignment And Subletting. (a) Tenant shall not assign,
transfer, mortgage, or otherwise encumber this Lease or sublet or rent (or
license or permit occupancy or use of) the Premises, or any part thereof,
without obtaining the prior written consent of Landlord, which consent Landlord
shall have no obligation to give and which may be given or withheld in
Landlord's sole discretion. For purposes of this Section 13.01, a "Change of
Control" of Tenant shall be deemed an "assignment" prohibited hereunder. Any
attempted assignment or other transfer without Landlord's consent as required
hereunder shall be null and void. Landlord agrees that the provisions of this
Section 13.01 shall not apply to a Change of Control of Charming Shoppes, Inc.
("CSI")
(b) For purposes of this Section 13.01, the following terms shall
have the meanings ascribed thereto:
(i) "Change of Control" means, with respect to Tenant, (1) the
direct or indirect acquisition (by merger, consolidation, business combination
or otherwise) by any Person or group or Persons of beneficial ownership (as
defined in Rule 13d-1 and Rule 13d-5 under the Securities Exchange Act of 1934)
of 35% or more of the Total Voting Power of Tenant or any of its Subsidiaries;
(2) any transaction or arrangement pursuant to which any Person possesses,
directly or indirectly, the power to direct or to cause the direction of the
management or policies of Tenant or any Subsidiary of Tenant or any of their
respective businesses, whether through the ownership of voting securities, by
contract or otherwise; (3) any merger, consolidation or other
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business combination of Tenant or any Subsidiary of Tenant with any Person after
giving effect to which (x) the shareholders of Tenant immediately prior to such
transaction do not own at least 65% of the Total Voting Power of the ultimate
parent entity of the parties to such transaction, or (y) individuals who were
directors of Tenant immediately prior to such transaction (or their designees)
do not constitute a majority of the board of directors of such ultimate parent
entity; or, (4) the direct or indirect acquisition by any Person or group of
Persons of 50% or more of the assets of Tenant; provided that CSI may cause the
transfer of the capital stock of Tenant to any of its wholly-owned Subsidiaries;
provided, further, that such Subsidiary shall be bound by all of the terms and
conditions of this Lease.
(ii) "Subsidiary" means, at any time, with respect to any Person
(the "Subject Person"), (1) any Person of which either (x) more than 50% of the
shares of stock or other interests entitled to vote in the election of directors
or comparable Persons performing similar functions (excluding shares or other
interests entitled to vote only upon the failure to pay dividends thereon or
other contingencies) or (y) more than a 50% interest in the profits or capital
of such Person, are at the time owned or controlled directly or indirectly by
the Subject Person or (2) any Person whose assets, or portions thereof, are
consolidated with the net earnings of the Subject Person and are recorded on the
books of the Subject Person for financial reporting purposes in accordance with
generally accepted accounting principles in effect in the country in which the
Subject Person is incorporated.
(iii) The term "Total Voting Power" with respect to any Person
means the total combined voting power of all securities of such Person entitled
to vote generally in the election of directors of such Person.
ARTICLE 14
Transfer By Landlord
Section 14.01. Assignment Of Rights. Landlord shall have the right to
assign its rights under this Lease at any time during the Term of this Lease,
subject only to the rights of Tenant hereunder, and such assignment shall
operate to release Landlord from liability hereunder for all acts or omissions
occurring after the date of such assignment, provided such assignee shall assume
all of Landlord's obligations hereunder arising on and after the date of such
transfer. If Landlord assigns its rights under this Lease pursuant to this
Section 14.01, then Landlord agrees to deliver a notice of such transaction,
along with the name and address of such transferee.
Section 14.02. Subordination. Unless a mortgagee shall otherwise elect, as
provided in Section 14.03, this Lease is and shall be subject and subordinate to
the lien of any and all mortgages (which term "mortgages" shall include both
19
construction and permanent financing and shall include deeds of trust and
similar security instruments) and/or ground leases or other superior leases
which may now or hereafter encumber or otherwise affect this Lease, the
Building, the Campus, or both, and to all and any renewals, extensions,
modifications, recastings or refinancings thereof, provided Tenant's obligation
to subordinate this Lease to future mortgages or ground leases shall be
conditioned upon such mortgagee or ground lessor agreeing not to disturb
Tenant's possession and other rights under this Lease so long as Tenant is not
in default hereunder. Landlord agrees to use commercially reasonable efforts to
obtain for the benefit of Tenant a non-disturbance agreement (in customary form)
from the present mortgagee of the Premises (if any). In confirmation of such
subordination, Tenant shall, at the request of Landlord, promptly execute any
requisite or appropriate certificate or other document in customary form. Tenant
agrees that in the event that any proceedings are brought for the foreclosure of
any such mortgage, Tenant shall attorn to the purchaser at such foreclosure
sale, if requested to do so by such purchaser, and to recognize such purchaser
as the landlord under this Lease, provided that such purchaser agrees not to
disturb Tenant's possession and other rights under this Lease so long as Tenant
is not in default hereunder, and Tenant waives the provisions of any statute or
rule of law, now or hereafter in effect, which may give or purport to give
Tenant any right to terminate or otherwise adversely affect this Lease and the
obligations of Tenant hereunder, in the event that any such foreclosure
proceeding is prosecuted or completed.
Section 14.03. Mortgagee's Unilateral Subordination. If a mortgagee or
superior lessor shall so elect by notice to Tenant or by the recording of a
unilateral declaration of subordination, this Lease and Tenant's rights
hereunder shall be superior and prior in right to the mortgage and/or ground
lease of which such mortgagee or ground lessor has the benefit, with the same
force and effect as if this Lease had been executed, delivered and recorded
prior to the execution, delivery and recording of such mortgage and/or ground
lease, subject, nevertheless, to such conditions as may be set forth in any such
notice of declaration which do not result in Tenant's occupancy under this Lease
being disturbed while Tenant is not in default hereunder.
Section 14.04. Subordination To Covenants, Conditions And Restrictions.
Tenant agrees that this Lease shall be subordinate and subject to any covenants,
conditions, easements and restrictions ("CCR's") which Landlord, in its sole
discretion, has previously or hereafter grants or adopts with respect to or
imposes upon the Campus, or any portion thereof, as long as such CCR's do not
materially adversely impair Tenant's use and occupancy of the Premises as
contemplated under this Lease. In confirmation of such subordination, Tenant
shall, at Landlord's request, promptly execute any requisite or appropriate
certificate or other document in customary form.
Section 14.05. Exculpation. If Landlord shall fail to perform any
covenant, term or condition of this Lease upon Landlord's part to be performed,
20
and if, as a consequence of such default, Tenant shall recover a money judgment
against Landlord, such judgment shall be satisfied only out of the proceeds of
sale received upon execution of such judgment and levied thereon against the
Landlord's interest in the Building and out of rents or other income from the
Building receivable by Landlord, or out of the consideration received by
Landlord from the sale or other disposition of all or any part of Landlord's
interest in the Building, subject, nevertheless, to the rights of any mortgagee
and/or ground lessor, and neither Landlord nor any of the shareholders,
directors or officers of Landlord shall be liable for any deficiency or
personally liable in any manner.
ARTICLE 15
Defaults And Remedies
Section 15.01. Defaults By Tenant. The occurrence of any one or more of
the following events shall be a default and breach of this Lease by Tenant:
(a) Tenant shall fail to pay any monthly installment of Rent within five
(5) calendar days after the same shall be due and payable, or any other sum(s)
within ten (10) calendar days after the same shall be due and payable, and such
nonpayment continues for a period of ten (10) days after Landlord gives to
Tenant written notice of such nonpayment.
(b) Except as otherwise provided in Section 13.01, Tenant shall fail to
perform or observe any term, condition, covenant or obligation required to be
performed or observed by it under this Lease for a period of thirty (30)
calendar days or more after notice thereof from Landlord; provided, however,
that if the term, condition, covenant or obligation to be performed by Tenant is
of such nature that the same cannot reasonably be performed within such thirty
(30) day period, such default shall be deemed to have been cured if Tenant
commences such performance within said thirty (30) day period and thereafter
diligently completes the same.
(c) A trustee or receiver shall be appointed to take possession of
substantially all of Tenant's assets in or about the Premises or of Tenant's
interest in this Lease (and Tenant does not regain possession within sixty (60)
calendar days after such appointment); Tenant makes an assignment for the
benefit of creditors; or substantially all of Tenant's assets in or about the
Premises or Tenant's interest in this Lease are attached or levied upon under
execution (and Tenant does not discharge the same within sixty (60) calendar
days thereafter).
(d) A petition in bankruptcy, insolvency, or for reorganization or
arrangement is filed by or against Tenant pursuant to any federal or state
statute (and, with respect to any such petition filed against it, Tenant fails
to secure a stay or discharge thereof within sixty (60) calendar days after the
filing of the same).
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Section 15.02. Remedies Of Landlord. Upon the occurrence of any event of
default set forth in Section 15.01, Landlord shall have the following rights and
remedies, in addition to those allowed by law, any one or more of which may be
exercised without further notice to or demand upon Tenant:
(a) Landlord may re-enter the Premises and cure any default of Tenant, in
which event Tenant shall reimburse Landlord as additional rent for any costs and
expenses which Landlord may incur to cure such default; and Landlord shall not
be liable to Tenant for any loss or damage which Tenant may sustain by reason of
Landlord's action, regardless of whether caused by Landlord's negligence or
otherwise.
(b) Landlord may terminate this Lease as of the date of such default, in
which event: (1) neither Tenant nor any person claiming under or through Tenant
shall thereafter be entitled to possession of the Premises, and Tenant shall
immediately thereafter surrender the Premises to Landlord; (2) Landlord may re-
enter the Premises and dispossess Tenant or any other occupants of the Premises
by summary proceedings, ejectment or otherwise, and may remove their effects,
without prejudice to any other remedy which Landlord may have for possession or
arrearages in rent; and (3) notwithstanding the termination of this Lease (a)
Landlord may recover from Tenant, as general damages, the present value of the
balance of the Rent which would have been due and payable for the balance of the
Term of this Lease, less the present value of the fair rental value of the
Premises for such period (with said present values being determined using an
eight percent (8%) discount rate), whereupon Tenant shall be obligated to pay
the same to Landlord, together with all costs, losses and damages which Landlord
may sustain by reason of such termination and re-entry, or (b) Landlord may
relet all or any part of the Premises on commercially reasonable terms and
conditions (which Tenant acknowledges may differ from those contained herein),
whereupon Tenant shall immediately be obligated to pay to Landlord, as
liquidated damages, the difference between the Rent provided for herein and that
provided for in any lease covering a subsequent reletting of the Premises, for
the period which would otherwise have constituted the balance of the Term of
this Lease, together with all of Landlord's costs and expenses for preparing the
Premises for reletting, including all repairs, brokers' and attorneys' fees, and
all costs, losses and damages which Landlord may sustain by reason of such
termination, re-entry and reletting, it being expressly understood and agreed
that the liabilities and remedies specified in clauses (a) and (b) hereof shall
survive the termination of this Lease. Notwithstanding the foregoing, Landlord
shall use all commercially reasonable efforts to mitigate its damages, and
Tenant agrees that such determination shall take into account the following: (x)
Landlord is not in the business of, and does not customarily, lease space in the
Campus to third parties and (y) the Premises have historically been dedicated to
Tenant's business operations.
(c) Landlord may ▇▇▇ for injunctive relief or to recover damages for any
loss resulting from the breach.
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Section 15.03. Non-waiver Of Defaults. The failure or delay by Landlord or
Tenant to enforce or exercise, at any time, any of the rights or remedies or
other provisions of this Lease shall not be construed to be a waiver thereof,
nor affect the validity of any part of this Lease or the right of Landlord or
Tenant thereafter to enforce each and every such right or remedy or other
provision. No waiver of any default and breach of the Lease shall be held to be
a waiver of any other default and breach. The receipt by Landlord of less than
the full Rent due shall not be construed to be other than a payment on account
of Rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction, and Landlord
may accept such payment without prejudice to Landlord's right to recover the
balance of the Rent due or to pursue any other remedies provided in this Lease.
No act or omission by Landlord or its employees or agents during the Term of
this Lease shall be deemed an acceptance or a surrender of the Premises, and no
agreement to accept such a surrender shall be valid unless in writing and signed
by Landlord.
Section 15.04. Default by Landlord. (a) It shall be a default and breach
of this Lease by Landlord if Landlord shall fail to perform or observe any term,
condition, covenant or obligation required to be performed or observed by it
under this Lease for a period of thirty (30) calendar days or more after notice
thereof from Tenant, which notice shall prominently display (in bold face type)
the words "First Landlord Default Notice" on the cover page and first page
thereof (if such pages differ); provided, however, that if the term, condition,
covenant or obligation to be performed by Landlord is of such nature that the
same cannot reasonably be performed within such thirty (30) day period, such
default shall be deemed to have been cured if Landlord commences such
performance within said thirty (30) day period and thereafter diligently
completes the same.
(b) Upon the occurrence of any event of default set forth in Section
15.04(a), Tenant shall have the right to cure such default, in which event
Landlord shall reimburse Tenant for any costs and expenses which Tenant may
incur to cure such default; provided, however, Tenant shall not cure any such
default unless such default remains uncured 10 days after Tenant delivers a
second notice to Landlord, which notice shall prominently display (in bold face
type and all capital letters) the words "SECOND LANDLORD DEFAULT NOTICE - TENANT
RESERVES RIGHT TO CURE" on the cover page and first page thereof (if such pages
differ). Tenant may ▇▇▇ for injunctive relief or to recover damages (subject to
Section 14.05) for any loss resulting from the breach of this Lease by Landlord.
In addition to Landlord's notice addresses set forth in Section 1.02(h), Tenant
shall deliver a copy of any First Landlord Default Notice and Second Landlord
Default Notice to:
Limited Logistics Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ARTICLE 16
Notice And Place Of Payment
Section 16.01. Notice. Any notice or other communication required or
permitted to be given to a party under this Lease shall be in writing, unless
otherwise specified in this Lease, and shall be given by one of the following
methods to such party at the address set forth in Item H of the Basic Lease
Provisions: (1) it may be sent by registered or certified United States mail,
return receipt requested and postage prepaid, or (2) it may be delivered by
facsimile or interconnected computers (with, for facsimile or inter-computer
delivery, a hard copy to follow by overnight courier). Any such notice shall be
deemed to have been given as follows: (i) when sent by registered or certified
United States mail, as of the earlier of date of delivery shown on the receipt,
or as of the second calendar day after it was mailed, and (ii) when delivered by
any other means, upon receipt. Either party may change its address for notice
by giving written notice thereof to the other party.
Section 16.02. Place Of Payment. All rent and other payments required to
be made by Tenant to Landlord shall be delivered or mailed to Distribution Land
Corp., ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Accounting (Re:
Lane ▇▇▇▇▇▇ HQ/DC5 Lease), or any other address Landlord may specify from time
to time by written notice given to Tenant.
ARTICLE 17
Hazardous Substances
Section 17.01. Hazardous Substances. Tenant shall not cause or permit any
Hazardous Substance (as hereinafter defined) to be used, stored, generated or
disposed of on or in the Premises, the Building or the Campus by Tenant,
Tenant's agents, employees, contractors, invitees or sublessees, without first
obtaining Landlord's written consent. If Hazardous Substances are used, stored,
generated or disposed of on or in the Premises, or if the Premises, the Building
or the Campus becomes contaminated in any manner for which Tenant is legally
liable, Tenant shall indemnify and hold harmless Landlord from any and all
claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, a decrease in value of the Building or the
Campus, damages caused by loss or restriction of rentable or usable space, or
any damages caused by adverse impact on marketing of the space, and any and all
sums paid for settlement of claims, attorneys' fees, consultant and expert fees)
arising during or after the Term of the Lease, and arising as a result of that
contamination by
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Tenant. This indemnification includes, without limitation, any and all costs
incurred because of any investigation of the site or any cleanup, removal or
restoration mandated by a federal, state or local agency or political
subdivision. Without limitation of the foregoing, if Tenant causes or permits
the presence of any Hazardous Substance on or in the Premises, the Building or
the Campus and that results in contamination, Tenant shall promptly, at its sole
expense, take any and all necessary actions to return the Premises, the Building
and the Campus to the condition existing prior to the presence of any such
Hazardous Substance on or in the Premises. Tenant shall first obtain Landlord's
approval for any such remedial action. As used herein, "Hazardous Substance"
means any substance that is toxic, ignitable, reactive or corrosive and that is
regulated by any local government, the State of Ohio, or the United States
Government. "Hazardous Substance" includes any and all materials or substances
that are defined as "hazardous waste", "extremely hazardous waste", or a
"hazardous substance" pursuant to state, federal or local government law.
"Hazardous Substance" includes, but is not restricted to, asbestos,
polychlorinated biphenyls, petroleum, petroleum products, and petroleum wastes.
Landlord makes no representation or warranty with respect to the presence
of Hazardous Substances in, on, under or about the Premises or the Building,
except and only to the extent as such representations and warranties have been
made by the "Seller" or "The Limited" pursuant to the Purchase Agreement.
Subject to the applicable provisions of the Purchase Agreement, Landlord hereby
consents to the use of such Hazardous Substances by Tenant as historically have
been used at the Premises, if any, for purposes of operating and maintaining
Tenant's equipment or otherwise operating Tenant's business.
ARTICLE 18
Miscellaneous General Provisions
Section 18.01. Standard for Delivery of Services by Landlord. If Landlord
is required pursuant to the terms of this Lease to deliver services to Tenant
(including, without limitation, maintenance and repairs to the Campus, the
Building, the Premises or Tenant's equipment and/or janitorial and refuse
collection services), Landlord agrees that, during the Term hereof, Landlord
shall not, and shall not cause or permit LLS to, materially adversely depart
from the quality, level and manner of services historically and customarily
provided to the Building, the Premises and/or Tenant's equipment, as the case
may be.
Section 18.02. Definition Of Rent. Any amounts of money to be paid by
Tenant to Landlord pursuant to the provisions of this Lease, whether or not such
payments are denominated "Rent" and whether or not they are to be periodic or
recurring, shall be deemed "Rent" for purposes of this Lease; and any failure to
pay any of the same, as provided in Section 16.01 hereof, shall entitle Landlord
to exercise all of the rights and remedies afforded hereby or by law for the
collection
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and enforcement of Tenant's obligation to pay Rent. Tenant's obligation to pay
any such Rent, pursuant to the provisions of this Lease, shall survive the
expiration or other termination of this Lease and the surrender of possession of
the Premises after any hold over period.
Section 18.03. Estoppel Certificate. Tenant and Landlord agree, at any
time and from time to time, upon not less than ten (10) calendar days prior
written notice by the other party, to execute, acknowledge and deliver to the
other party, as appropriate, a statement in writing (i) certifying that this
Lease is unmodified and in full force and effect, (or, if there have been
modifications, stating such modifications); (ii) stating the dates to which the
rent and any other charges hereunder have been paid by Tenant;, (iii) stating
whether or not, to the best of such party's knowledge, the other party is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and, if so, specifying each such default of which such party may
have knowledge; and (iv) stating the address to which notices to such party
should be sent. Any such statement delivered pursuant hereto may be relied upon
by any lending institution of Tenant, the owner of the Building or the Campus,
any prospective purchaser of the Building, any mortgagee or prospective
mortgagee of the Building, or any prospective assignee of any such mortgagee.
Section 18.04. Governing Law. This Lease shall be construed and enforced
in accordance with the laws of the State of Ohio.
Section 18.05. Successors And Assigns. This Lease and the respective
rights and obligations of the parties hereto shall inure to the benefit of and
be binding upon the successors and assigns of the parties hereto, as well as the
parties themselves; provided, however, that Landlord, its successors and
assigns, shall be obligated to perform Landlord's covenants under this Lease
only during and in respect to their successive periods of ownership during the
Term of this Lease.
Section 18.06. Severability Of Invalid Provisions. If any provision of
this Lease shall be held to be invalid, void or unenforceable, the remaining
provisions hereof shall not be affected or impaired, and such remaining
provisions shall remain in full force and effect.
Section 18.07. Certain Words, Gender And Headings. As used in this Lease,
the word "person" shall mean and include, where appropriate, an individual,
corporation, partnership or other entity; the plural shall be substituted for
the singular and the singular for the plural, where appropriate; and words of
any gender shall include any other gender. The topical headings of the several
paragraphs of this Lease are inserted only as a matter of convenience and
reference, and do not affect, define, limit or describe the scope or intent of
this Lease.
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Section 18.08. Quiet Enjoyment. So long as Tenant pays the prescribed rent
and performs or observes all of the terms, conditions, covenants and obligations
of this Lease required to be performed or observed by it hereunder, Tenant
shall, at all times during the Term hereof, have the peaceable and quiet
enjoyment, possession, occupancy and use of the Premises, without any
interference from Landlord or any person or persons claiming the Premises, by,
through or under Landlord.
Section 18.09. Complete Agreement; Amendments. This Lease, including all
Exhibits, Riders and Addenda, constitutes the entire agreement between the
parties hereto; it supersedes all previous understandings and agreements between
the parties, if any, and no oral or implied representation or understandings
shall vary its terms; and it may not be amended, except by a written instrument
executed by both parties hereto.
Section 18.10. Reasonable Modifications. Tenant will consent to such
reasonable modifications of this Lease as Landlord may hereafter find it
necessary to make in order to obtain mortgage financing, provided that such
modifications (a) do not change the rental or any fees to be paid hereunder or
the length of the Term of the Lease; and (b) do not impose obligations upon
Tenant which are substantially or practically more burdensome to it than the
obligations contained herein or diminish Tenant's rights hereunder.
Section 18.11 Force Majeure. Except for the payment of any monetary
obligations hereunder, neither party shall be held liable or responsible to the
other party not be deemed to have defaulted under or breached this Lease for
failure or delay in fulfilling or performing any term of this Lease when such
failure or delay is caused by acts or occurrences which are beyond the
reasonable control of the affected party, including, but not limited to, acts of
God, war and civil unrest and labor strikes.
Section 18.12. Waiver of Landlord Lien. Landlord hereby waives and
relinquishes any landlord's lien, right of levy or distraint, claim, security
interest or other interest Landlord may now or hereafter have in or with respect
to any of Tenant's personal property at the Premises. For purposes of this
Lease, Tenant's "Personal Property" shall include all of Tenant's personal
property, including inventory and equipment, but shall not include plumbing and
electrical fixtures, heating, ventilation and air conditioning, wall and floor
coverings, walls or ceilings and other fixtures not constituting trade fixtures.
Landlord agrees to execute and deliver an Access and Waiver Agreement
substantially in the form of Exhibit F attached to the Purchase Agreement.
---------
Section 18.13. Termination of Prior Lease. Landlord and Tenant are parties
to a Lease Agreement dated as of January 31, 1999 with respect to premises in
the Building (the "Prior Lease"). Landlord and Tenant agree that, as
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of the Commencement Date, the Prior Lease shall be terminated and shall no
longer be in force or effect.
Section 18.14. Guaranty by CSI and LBH
(a) CSI and LBH (together with CSI, the "Guarantors"), for themselves and
their successors and assigns, hereby unconditionally jointly and severally
guarantee the full and punctual payment and performance of the obligations of
Tenant under this Lease (including, without limitation, interest accruing during
the pendency of any bankruptcy or insolvency proceeding, whether or not allowed
or allowable thereunder). Upon failure by Tenant to pay punctually any such
amount or perform such obligation, Guarantors shall forthwith on demand pay the
amount not so paid and/or otherwise perform such obligation at the place and in
the manner specified in this Lease.
(b) The obligations of the Guarantors hereunder shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not be
released, discharged or otherwise affected by:
(i) Any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of Tenant under this Lease, by
operation of law or otherwise;
(ii) Any modification or amendment of or supplement to this
Lease;
(iii) Any release, impairment, non-perfection or invalidity of
any direct or indirect security for any obligation of Tenant under this
Lease;
(iv) Any change in the corporate existence, structure or
ownership of Tenant, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting Tenant or its assets or any resulting release
or discharge of any obligation of Tenant contained in this Lease;
(v) The existence of any claim, set-off or other rights which
either Guarantor may have at any time against Tenant, or any other Person,
whether in connection with this Lease or any unrelated transaction,
provided that nothing herein shall prevent the assertion of any such claim
by separate suit or compulsory counterclaim;
(vi) Any invalidity or unenforceability relating to or against
Tenant for any reason of this Lease, or any provision of applicable law or
regulation purporting to prohibit the payment by Tenant of any amount
payable by Tenant under this Lease; or
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(vii) Any other act or omission to act or delay of any kind by
Tenant or any other Person or any other circumstance whatsoever which
might, but for the provisions of this paragraph, constitute a legal or
equitable discharge of or defense to the Guarantors' obligations hereunder.
(c) The Guarantors' obligations hereunder shall remain in full force and
effect until all amounts payable and obligations to be performed by Tenant under
this Lease shall have been paid and performed in full. If at any time any amount
payable by Tenant under this Lease is rescinded or must be otherwise restored or
returned upon the insolvency, bankruptcy or reorganization of Tenant or
otherwise, the Guarantors' obligations hereunder with respect to such payment
shall be reinstated as though such payment had been due but not made at such
time.
(d) Each Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any Person against Tenant or
any other Person.
(e) Upon making full payment with respect to any obligation of Tenant,
each Guarantor shall be subrogated to the rights of the payee against Tenant
with respect to such obligation; provided that the Guarantors shall not enforce
any payment by way of subrogation so long as any amount payable by Tenant
hereunder remains unpaid.
(f) If acceleration of the time for payment of any amount payable by
Tenant under this Lease is stayed upon the insolvency, bankruptcy or
reorganization of Tenant, all such amounts otherwise subject to acceleration
under the terms of this Lease shall nonetheless be payable by the Guarantors
hereunder forthwith on demand by Lessor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the
day and year first above written.
Witnesses as to Landlord: LANDLORD:
DISTRIBUTION LAND CORP., a
Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------- -----------------------------
Print Name:▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------ Title: Sr. Vice President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Print Name:▇▇▇▇ ▇. ▇▇▇▇▇
------------------
ATTESTED BY:
/s/ ▇▇▇▇▇ ▇. Day /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------- -----------------------------
Print Name:▇▇▇▇▇ ▇. Day Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------ Title: Vice President, Senior
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Print Name:▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------
Witnesses as to Tenant: TENANT:
LANE ▇▇▇▇▇▇, INC., a
Delaware corporation
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------- -----------------------------
Print Name:▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
_____________________________
Print Name:__________________
ATTESTED BY:
/s/ ▇▇▇▇▇▇▇ ▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------- -----------------------------
Print Name:▇▇▇▇▇▇▇ ▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
_____________________________
Print Name:__________________
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Executing solely for the purposes set
forth in Section 18.14 of this Lease:
Witnesses as to CHARMING: GUARANTORS:
SHOPPES, INC.
CHARMING SHOPPES, INC., a
Pennsylvania corporation
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ -----------------------------
Print Name:▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------- Title: Executive Vice President
______________________________
Print Name:___________________
ATTESTED BY:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------ ---------------------------------
Print Name:▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------- Title: Secretary
______________________________
Print Name:___________________
Witnesses as to LBH, INC.: LBH, INC.
a Nevada corporation
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ -----------------------------
Print Name:▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------- Title: Executive Vice President
______________________________
Print Name:___________________
ATTESTED BY:
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------ ---------------------------------
Print Name:▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------- Title: Assistant Secretary
______________________________
Print Name:___________________
31
STATE OF Ohio,
------
COUNTY OF Franklin, SS:
----------
The foregoing instrument was acknowledged before me this 16th day of August
2001, by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Sr. V.P. and V.P. Sr.,
respectively, of Distribution Land Corp., a Delaware corporation, on behalf of
the corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Notary Public
STATE OF New York,
COUNTY OF New York, SS:
The foregoing instrument was acknowledged before me this 16th day of
August, 2001, by ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇ ▇▇▇▇▇▇▇, EVP and EVP respectively, of
Lane ▇▇▇▇▇▇, Inc., a Delaware corporation, on behalf of the corporation.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Notary Public
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, SS:
The foregoing instrument was acknowledged before me this 16th day of
August, 2001, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, Exec. V.P. and Secretary,
respectively, of Charming Shoppes, Inc., a Pennsylvania corporation, on behalf
of the corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Notary Public
STATE OF New York,
COUNTY OF New York, SS:
The foregoing instrument was acknowledged before me this 16th day of
August, 2001, by ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇, Exec. V.P. and Asst.
Secretary, respectively, of LBH, Inc., a Nevada corporation, on behalf of the
corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Notary Public
33