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Shared Facilities Agre Dated 09/27/96-express

This is an actual contract by Abercrombie & Fitch.

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Sectors: Retail
Governing Law: Ohio, View Ohio State Laws
Effective Date: September 27, 1996
Related Agreement Types:
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Exhibit 10.3


SHARED FACILITIES AGREEMENT
---------------------------


This SHARED FACILITIES AGREEMENT is entered into as of September 27, 1996 (this "Agreement"), by and between EXPRESS, INC., a Delaware corporation ("Sublessor"), and ABERCROMBIE & FITCH CO., a Delaware corporation ("Sublessee").


WITNESSETH:
-----------


WHEREAS, Sublessor is a tenant under each of the lease agreements described on Schedule 1 attached hereto and made a part hereof;
---------


WHEREAS, prior to the date hereof, Sublessee has occupied all or a portion of the premises leased by Sublessor under such lease agreements without a written agreement; and


WHEREAS, Sublessor and Sublessee desire to evidence their agreement relating to such shared occupancy upon the terms and conditions set forth below.


NOW, THEREFORE, in consideration of the covenants set forth herein, the parties covenant and agree as follows


1. Definitions. The following are the defined terms used in this
------------ Agreement:


"Affiliate" means a corporation, partnership or other business entity, which, directly or indirectly, controls, is controlled by, or is under common control with, another corporation, partnership or other business entity. If more than 50 percent of the voting stock of a corporation shall be owned by another corporation or by a partnership or other business entity, the corporation whose stock is so owned shall be deemed to be controlled by the corporation, partnership or business entity owning such stock.


"Lease Term" means the initial term of a Prime Lease as it may be extended by Sublessor pursuant to a renewal or extension option therein.


"Leased Premises" means the premises in which Sublessor has a leasehold interest under a Prime Lease or all such premises collectively, as the context may require.


"Lessor" means the landlord under a Prime Lease.


"Prime Lease" means each of the leases described on Schedule 1; all such
---------- leases are collectively referred to as the "Prime Leases". The parties may, after the date hereof, designate any other lease as a Prime Lease subject to the terms of this Agreement, by


replacing Schedule 1 with a new Schedule 1, which describes such other lease and
---------- ---------- which is initialed by both parties.


"Space Size Ratios" means, in respect of any Leased Premises and the Subleased Premises forming a part thereof, the ratio that the size of the Subleased Premises bears to the size of the entire Leased Premises and the ratio that the size of the Leased Premises exclusive of the Subleased Premises bears to the size of the entire Leased Premises, with all such sizes being as reflected on Schedule 1.
----------


"Subleased Premises" means the portion of the Leased Premises occupied by Sublessee as described on Schedule 1, individually or collectively, as the
---------- context may require.


2. Sublease. Sublessor, in consideration of the covenants and agreements
-------- to be performed by Sublessee and upon the terms and conditions hereinafter stated, does hereby sublease, demise and let unto Sublessee, and Sublessee does hereby sublease from Sublessor, each of the Subleased Premises upon the terms and conditions set forth below.


3. Priority of Prime Lease. This Agreement, as it relates to the
----------------------- Subleased Premises, is expressly subject and subordinate to the applicable Prime Lease and, subject to the modifications set forth in this Agreement, all the terms, conditions and covenants therein contained. Except to the extent otherwise expressly set forth in this Agreement, in which event the terms of this Agreement shall prevail, all the terms, covenants and conditions of a Prime Lease shall be applicable to this Agreement with respect to the corresponding Subleased Premises with the same force and effect as if Sublessor were the landlord under the Prime Lease and Sublessee were the tenant thereunder and the provisions of the Prime Lease are incorporated herein by reference with the same force and effect as if they were fully set forth herein (except to the extent that they are modified by the terms of this Agreement), and Sublessee shall assume and fully perform and discharge, with regard to the Subleased Premises, all the obligations of Sublessor as tenant under the Prime Lease during the Lease Term. In the event of any breach by Sublessee of any term, covenant or condition of this Agreement, Sublessor shall have all the rights against Sublessee as would be available to the Lessor against the Sublessor as tenant under the applicable Prime Lease if such breach were by Sublessor thereunder.


4. Term. The term of the sublease granted herein shall be coextensive,
----- less one day, with the Lease Term of the applicable Prime Lease, unless sooner terminated as provided herein. Sublessee acknowledges that the Lease Term may include renewal or extension options exercisable by Sublessor and that the exercise of any such option shall be determined by Sublessor in its sole and absolute discretion. Sublessor will notify Sublessee in the event Sublessor has determined not to exercise any renewal or extension option and will offer to assign the Prime Lease, to the extent permitted under such Prime Lease or by the Lessor, or otherwise to cooperate with Sublessee to allow Sublessee, in its discretion, to exercise any such option with respect to the Leased Premises, so long as Sublessor has no responsibility or liability under the Prime Lease after expiration of the Lease Term (without consideration of such option)


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5. Utilities/Other Services. (a) Except as otherwise specified herein, the
------------------------ only services, utilities or rights to which Sublessee is entitled under this Agreement with respect to the Subleased Premises are those to which Sublessor is entitled from the Lessor under the applicable Prime Lease and Sublessor shall have no liability to Sublessee for the failure to provide such services, utilities or rights unless such failure to provide same is the result of some act or omission of Sublessor under the Prime Lease. In addition, Sublessee shall not be entitled to utility services greater than that which it was receiving (if Sublessee was in possession) prior to the date hereof.


(b) If any utility services to the Leased Premises are not separately metered as between the Subleased Premises and the remainder of the Leased Premises, the accounts shall be in the name of Sublessor, or the Lessor if required by the Prime Lease, and the payments to the utility companies or the Lessor, as the case may be, shall be shared prorata by Sublessee and Sublessor based on the Space Size Ratios, and without regard to consumption. Sublessee shall pay its share of same to Sublessor on or before the later of (i) five business days after Sublessee receives an invoice (including a copy of the Lessor's invoice, if any) for same or (ii) the date such payment is due and payable to the utility company or the Lessor, as the case may be


6. Monetary Obligations. (a) All monetary obligations of Sublessor under a
-------------------- Prime Lease, other than percentage rent, shall be shared prorata by Sublessee and Sublessor based on the Space Size Ratios. Any percentage rent payable under a Prime Lease shall be prorated by Sublessor and Sublessee based solely on the sales made by each party during the period for which such percentage rent is payable. Each party's proportionate share of percentage rent payable under a Prime Lease shall be equal to the ratio that such party's sales during the period for which such percentage rent is payable bears to the aggregate of such party's sales and the other party's sales for such period. For purposes of such proration, the percentage rent breakpoint shall not be prorated based on the size of the Subleased Premises or by any other method.


(b) Sublessee shall pay its prorata share of such monetary obligations to Sublessor on or before the later of (i) five business days after Sublessee's receipt of written notice of such obligation (if the obligation is a recurring one, only one notice that specifies the due dates shall be required) and a copy of the Lessor's invoice, if any, or (ii) the date Sublessor is required to pay such monetary obligations to the Lessor. The monetary obligations referred to in this Section 6 shall include, without limitation, base, fixed and minimum rent, percentage rent, common area maintenance charges, enclosed mall maintenance charges, real estate taxes and assessments, insurance charges, merchants association dues, marketing, advertising and other promotional fund contributions and HVAC and chilled water charges.


7. Non-Monetary Obligations. In the event any non-monetary obligation of
------------------------ the tenant under a Prime Lease, other than those for which specific provision is made in this Agreement, is not attributable to the Subleased Premises exclusively or the remainder of the Leased Premises exclusively (e.g., the
---- maintenance of insurance or the repair of any HVAC unit serving the entire Leased Premises), such obligation shall be performed by Sublessor and the cost of performing same shall be shared prorata by Sublessee and Sublessor based on the Space Size Ratios, unless the parties have


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agreed to a different cost-sharing arrangement under a separate written agreement (e g, the "Services Agreement" between The Limited, Inc., and Abercrombie & Fitch Co.)


8. Tenant Inducements. The parties acknowledge that all monetary tenant
------------------- inducements arising prior to the date hereof, including, without limitation, tenant improvement allowances and moving allowances, under a Prime Lease have been or will be received by Sublessor for its sole and exclusive benefit, unless the parties have made prior arrangements (through course of conduct or written or oral agreement) to share any such monetary inducement. All monetary inducements arising after the date hereof, including, without limitation, tenant improvement allowances and moving allowances, under a Prime Lease shall be shared prorata by Sublessee and Sublessor based on the Space Size Ratios, unless otherwise agreed by the parties


9. Termination Rights. All rights of the tenant to terminate a Prime
------------------- Lease, including, without limitation, any "kickout" or "cotenancy" rights or rights to terminate in the event of a casualty or condemnation or default of the Lessor, shall belong exclusively to Sublessor and may be exercised by Sublessor in its sole and absolute discretion without liability to Sublessee; provided,
-------- however, Sublessor will notify Sublessee of its intent to terminate a Prime - ------- Lease and will offer to assign the Prime Lease to Sublessee, to the extent permitted under such Prime Lease or by the Lessor, so long as Sublessor has no responsibility or liability under the Prime Lease after such assignment. Sublessee acknowledges that in the event of any such termination, this Agreement shall terminate with respect to such Prime Lease.


10. Access; Alterations. (a) The parties acknowledge that certain of the
------------------- Leased Premises may be configured such that Sublessor may need access to the Subleased Premises and Sublessee may need access to the remainder of the Leased Premises for purposes of maintaining or making adjustments or repairs to facilities (e.g., pipes, conduits, electrical and telecommunication wiring,
---- etc.) serving such party's premises or for purposes of using restroom facilities or stock or storage rooms or for such other reasonable purposes. The parties hereby grant each other access through their respective premises for such purposes, provided that the
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