REAL ESTATE MATTERS AGREEMENT between SARA LEE CORPORATION and HANESBRANDS INC.
TABLE OF CONTENTS
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Section 4.13 Construction |
17 | |
Section 4.14 Counterparts |
17 | |
Section 4.15 Limitation On Damages |
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Section 4.16 Delivery By Facsimile Or Other Electronic Means |
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Section 4.17 Time of Essence |
18 | |
ARTICLE V DEFINITIONS |
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SCHEDULES
Schedule 1.1
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Owned Properties | |
Schedule 1.2
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Leased Properties |
EXHIBITS
Exhibit A
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Form Conveyance for Owned Properties | |
Exhibit B
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Form Assignment for Leased Properties |
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This Real Estate Matters Agreement (this “Agreement”) is dated as of August 31, 2006
between Xxxx Xxx Corporation, a Maryland corporation (“Xxxx Xxx”), and Hanesbrands Inc., a
Maryland corporation (“HBI”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in Article V hereof.
ARTICLE I
Section 1.1 Owned Property. Xxxx Xxx shall convey or otherwise transfer to HBI or its
designated Subsidiary, or cause its designated Subsidiary to convey or otherwise transfer to HBI or
its designated Subsidiary, and HBI shall accept, or cause its applicable Subsidiary to accept, all
of Xxxx Xxx’x or its Subsidiary’s rights, title and interests in and to the Owned Properties,
subject to the other provisions of this Agreement and (to the extent not inconsistent with the
provisions of this Agreement) the terms of the Separation Agreement and the other Ancillary
Agreements. The parties shall use reasonable best efforts to effect such conveyance or transfer
upon the Separation Date or as soon thereafter as practicable. The foregoing provisions in this
Section 1.1 contemplate that Owned Properties in the name of a Subsidiary of Xxxx Xxx (or
its predecessor), the stock of which is to be contributed to HBI or its designated Subsidiary,
shall not be conveyed under this Section 1.1 (with the result that such Owned Properties
will be owned by a Subsidiary of HBI upon completion of the Separation).
Section 1.2 Leased Property. Xxxx Xxx shall assign or otherwise transfer to HBI or
its designated Subsidiary, or cause its applicable Subsidiary to assign or otherwise transfer to
HBI or its designated Subsidiary, and HBI shall accept and assume, or cause its designated
Subsidiary
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to accept and assume, all of Xxxx Xxx’x or its Subsidiary’s rights, title, interests in
and to, and obligations under, the Leases (including thereunder, any right, title and interest in
and to any security deposits and related interest posted in accordance with such Leases), subject
to the other provisions of this Agreement and (to the extent not inconsistent with the provisions
of this Agreement) the terms of the Separation Agreement and the other Ancillary Agreements. Such
assignment or transfer shall be completed on the later of: (i) the Separation Date and (ii) the
fifth business day after the relevant Lease Consent has been granted (or such earlier date as is
mutually agreed upon by Xxxx Xxx and HBI). The foregoing provisions of this Section 1.2
contemplate that Xxxx Xxx or a Subsidiary of Xxxx Xxx (the stock of which is not being contributed
to HBI) is the lessee or that a “change in control” or similar provision appears in a Lease in
which a Subsidiary of Xxxx Xxx (or its predecessor), the stock of which is to be contributed to
HBI, is the lessee. Leases that do not contain such a provision which are in the name of a
Subsidiary of Xxxx Xxx (or its predecessor), the stock of which is to be contributed to HBI, shall
not be assigned or transferred under this Section 1.2 (but shall instead continue to be leased by
such Subsidiary from and after the time it is contributed to HBI in the Separation).
Section 1.3 Lease Consents.
(a) HBI confirms that it or Xxxx Xxx Branded Apparel has, before the Separation Date, applied
for the Lease Consents on Xxxx Xxx’x behalf by written notice to the Landlord with respect to each
Lease Requiring Consent and provided or plans to provide any notice required to be delivered under
each Lease Requiring Notice.
(b) HBI shall use its reasonable best efforts to obtain the Lease Consents required by each
Lease Requiring Consent. Xxxx Xxx shall cooperate as reasonably requested by HBI and at HBI’s sole
expense to obtain the Lease Consents; provided, however, that Xxxx Xxx shall not be
required to commence or pursue any Action (whether to obtain a declaration that a Lease Consent has
been improperly withheld or delayed or for any other purpose), nor shall Xxxx Xxx be required to
pay any consideration or otherwise offer or grant any accommodation (financial or otherwise), to
obtain any Lease Consent. Neither Xxxx Xxx nor any of its Subsidiaries shall have any liability to
HBI or any of its Subsidiaries arising out of, or relating to, the failure to obtain any Lease
Consents or any default, loss of any rights or acceleration of any obligations under, or any
termination of, any Lease Requiring Consent as a result of any failure to obtain any Lease
Consents. If and to the extent that a Lease Requiring Consent provides the applicable Landlord the
opportunity to recapture all or a portion of a leased premises due to request for a Lease Consent
and such Lease Requiring Consent permits a request to be withdrawn (or words of similar import)
upon such Landlord’s election so to recapture, then Xxxx Xxx shall use reasonable best efforts to
exercise such right to withdraw a request for Lease Consent at the request of HBI.
(c) HBI shall use its reasonable best efforts to satisfy promptly, or cause its applicable
Subsidiaries to use its reasonable best efforts to satisfy promptly, all of the
requirements set forth in each Lease Requiring Consent and any other lawful and reasonable
requirements of the Landlord in obtaining the Lease Consents, including, without limitation:
(i) if required by any Landlord with respect to any Lease Requiring Consent, entering
into an agreement with such Landlord to assume, observe and perform
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the tenant’s obligations
under such Lease Requiring Consent during the remainder of the term of such Lease Requiring
Consent; and
(ii) if reasonably required by any such Landlord, providing, or causing another Person
(other than Xxxx Xxx or any other member of the Xxxx Xxx Group) to provide, a guarantee,
surety, letter of credit, security deposit or other security for the obligations of HBI or
its applicable Subsidiary as tenant under any Lease Requiring Consent.
Section 1.4 Releases.
(a) HBI shall use its reasonable best efforts to obtain a Release from each Landlord with
respect to each Lease and to satisfy promptly, or cause its designated Subsidiaries to use their
reasonable best efforts to satisfy promptly, all of the lawful and reasonable requirements of each
Landlord in obtaining each Release, including, without limitation:
(i) if required by the Landlord with respect to any Lease, entering into an agreement
with such Landlord to assume, observe and perform the tenant’s obligations under such Lease
during the remainder of the term of such Lease; and
(ii) if reasonably required by any the Landlord with respect to any Lease, providing,
or causing another Person (other than Xxxx Xxx or any other member of the Xxxx Xxx Group) to
provide, a guarantee, surety, letter of credit, security deposit or other security for the
obligations of HBI or its applicable Subsidiary as tenant under such Lease.
(b) Xxxx Xxx shall cooperate, reasonably and at HBI’s sole expense, with HBI’s efforts to
obtain each Release; provided, however, that Xxxx Xxx shall not be required to
commence or pursue any Action, nor shall Xxxx Xxx be required to pay any consideration or incur any
cost or otherwise offer or grant any accommodation (financial or otherwise), to obtain any Release.
(c) To the extent that HBI does not obtain a Release from each Landlord with respect to any
Lease, HBI shall indemnify, defend, protect and hold harmless the Xxxx Xxx Indemnitees from and
against, and shall reimburse each Xxxx Xxx Indemnitee for, all Losses incurred by any Xxxx Xxx
Indemnitee and occurring or accruing after the Separation Date as a result of (i) all Obligations
or the failure by HBI or any of its Subsidiaries to pay, perform, observe and discharge all
Obligations or (ii) HBI’s or its applicable Subsidiary’s use or occupancy of the respective Leased
Properties under each such Lease, including without limitation HBI’s or such Subsidiary’s use or
occupancy of any Leased Property under Section 1.5 of this Agreement.
Section 1.5 Temporary Occupancy.
In the event that the Actual Closing for any Leased Property does not occur on or before the
Separation Date, Xxxx Xxx and HBI shall use their respective reasonable best efforts to allow HBI
to occupy such Leased Property upon the terms and conditions contained in the relevant Lease and
until the Actual Closing for such Leased Property; provided, however, that if an
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enforcement action
or forfeiture by the relevant Landlord due to HBI’s or its applicable Subsidiary’s occupation of
such Leased Property constituting a breach of a Relevant Lease cannot, in the reasonable opinion of
Xxxx Xxx, be avoided other than by requiring HBI or its applicable Subsidiary to promptly vacate
the relevant Leased Property, Xxxx Xxx may by notice to HBI promptly require HBI or its applicable
Subsidiary to vacate the relevant Leased Property on not less than ten (10) days prior written
notice. HBI will be responsible for all Losses incurred by Xxxx Xxx or any of its Subsidiaries as a
consequence of such occupation. Neither HBI nor its applicable Subsidiary shall be entitled to make
any claim or demand against, or obtain reimbursement from, Xxxx Xxx or any of its Subsidiaries with
respect to any Losses incurred by HBI or its applicable Subsidiary as a consequence of being
obliged to vacate the Leased Property or in obtaining alternative premises, including, without
limitation, any Action or forfeiture which a Landlord may take against HBI or its applicable
Subsidiary.
Section 1.6 Performance of Leases.
(a) Whether or not (i) the Actual Closing with respect to any Leased Property has occurred or
(ii) HBI or its applicable Subsidiary occupies any Leased Property under Section 1.5 above
as of the Separation Date, HBI shall, effective as of the Separation Date, pay, perform, observe
and discharge promptly when due, or cause its applicable Subsidiary to pay, perform, observe and
discharge promptly when due, all Obligations under the Lease of such Leased Property; provided,
however, that if, prior to an Actual Closing, a Landlord refuses to accept direct payment,
performance, observation or other discharge of Obligations by HBI, then Xxxx Xxx at HBI’s request
shall make such payment, performance, observation or otherwise discharge such Obligations until
such Actual Closing, subject to Xxxx Xxx’x receipt of payment from HBI of all rent and other
amounts payable under the applicable Lease prior to payment by Xxxx Xxx to the Landlord.
(b) Upon (i) the Actual Closing with respect to any Guaranteed Property or (ii) the
commencement of HBI’s or its applicable Subsidiary’s occupancy of any Leased Property under
Section 1.5 of this Agreement or sublease of any Leased Property under Section 1.7
of this Agreement, HBI and each of its applicable Subsidiaries shall obtain and maintain all
insurance, in such amounts and with such coverage, terms and conditions, as the tenant is required
to maintain under each such Lease; provided, however, if, prior to an Actual Closing, a Landlord
refuses to accept HBI’s performance of the insurance requirements of any Lease or HBI’s insurer
does not recognize an insurable interest on behalf of HBI, then Xxxx Xxx at HBI’s request shall use
reasonable best efforts to obtain and maintain insurance policies until such Actual Closing, in
such amounts and with such coverage, terms and conditions, as the tenant is required to maintain
under such Lease, subject to (i) Xxxx Xxx’x receipt of payment from HBI of all premiums and other
amounts owing with respect to such policies prior to payment by Xxxx Xxx to the carriers and (ii)
indemnification from HBI against any Losses which any Xxxx Xxx Indemnitee may suffer under or in
connection with such arrangements. HBI and each of its applicable Subsidiaries shall maintain such
insurance for so long as Xxxx Xxx retains any Obligations with regard to the Properties or Leases
subject to such insurance. Each of Xxxx Xxx and HBI (each, an “Obtaining
Party”) shall, when obtaining insurance pursuant to this Agreement, use reasonable best
efforts to provide that coverage under such insurance shall not expire or be terminated or
materially modified without such insurer endeavoring to provide written notice to the other party
at least 30 days in advance of such expiration, termination or modification. All policies of
commercial
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general liability insurance obtained by an Obtaining Party (or any Subsidiary of such
Obtaining Party) shall designate the other party and, as applicable, the other members of the Xxxx
Xxx Group or the appropriate Subsidiary of HBI, as additional insureds. On or before each such
Actual Closing or the commencement of any such occupancy or sublease, and thereafter at least 30
days before the expiration of any such insurance or within ten days after receiving a written
request from the other party, the Obtaining Party shall deliver certificates from the issuers of
all such insurance evidencing full compliance with this Section 1.6(b), together with evidence of
the payment of any premiums due on account of such insurance.
(c) Xxxx Xxx shall use reasonable best efforts to promptly deliver to HBI copies of all
invoices, demands, notices and other communications received by Xxxx Xxx or its applicable
Subsidiary or agents in connection with any of the Leased Properties or the Leases and shall, at
HBI’s cost and upon HBI’s reasonable request, use reasonable best efforts to give notices and
otherwise communicate on behalf of HBI or its applicable Subsidiary with respect to matters
relating to any Lease or Leased Property. HBI shall use reasonable best efforts to promptly
deliver to Xxxx Xxx copies of all demands, notices and other communications received by HBI or its
applicable Subsidiary or agents that allege any breach or default of any Lease, which breach or
default could reasonably be expected to result in Xxxx Xxx or any of its Subsidiaries incurring any
Liabilities under such Lease or relating to the applicable Leased Property.
Section 1.7 Alternative Sublease. If, at any time the relevant Lease Consent is
expressly refused, and provided HBI has otherwise discharged its obligations under Section
1.3 and Section 1.14 with regards to obtaining such Lease Consent, Xxxx Xxx may, in its
reasonable discretion, by written notice to HBI, elect to sublease all of the relevant Leased
Property utilized by HBI or its applicable Subsidiary to HBI or such Subsidiary for the remainder
of the term of the Lease (or, if required by Landlord, for a period equal to substantially all of
the remainder of the term of such Lease). If Xxxx Xxx makes such an election, Xxxx Xxx shall apply
to the relevant Landlord for the Lease Consent with respect to such sublease, and, on the grant of
such Lease Consent, Xxxx Xxx shall sublease or cause its applicable Subsidiary to sublease to HBI
or its applicable Subsidiary the relevant Leased Property for the remainder of the term of the
Lease Requiring Consent, at a rent equal to the rent from time to time under the Lease Requiring
Consent, but otherwise on substantially the same terms and conditions as the Lease Requiring
Consent, except to the extent inconsistent with this Agreement and except that Xxxx Xxx shall have
no obligation to perform any obligations of such Landlord under such Lease. The sublease shall
provide that (i) Xxxx Xxx shall use reasonable best efforts to enforce such Lease for the benefit
of HBI, at HBI’s sole cost and expense, (ii) Xxxx Xxx shall not terminate or otherwise amend such
Lease so as to materially adversely affect such subleased premises or HBI’s rights thereunder; and
(iii) subject to Section 1.13 of this Agreement, Xxxx Xxx shall exercise such Lease rights as may
be reasonably requested by HBI from time to time, at HBI’s sole cost and expense and subject to
indemnification from HBI against any Losses any Xxxx Xxx Indemnitee may suffer in connection
therewith.
Section 1.8 Form Of Transfer. Xxxx Xxx or its applicable Subsidiary shall make the
conveyance or transfer of the Owned Property in accordance Section 1.1 of this Agreement
using one or more instruments substantially in the form attached to this Agreement as Exhibit
A and shall make the assignment or transfer of the Leased Property in accordance Section
1.2 of this
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Agreement using one or more instruments substantially in the form attached to this
Agreement as Exhibit B (or, if any Landlord so requires, in the form of assignment
reasonably proposed by the relevant Landlord), in each case with such modifications as are
necessary to conform to local requirements, customs and practices to the extent necessary to render
such form effective and, if requested by HBI, recordable. Xxxx Xxx and HBI shall also execute and
deliver such other documents as may be reasonably necessary in connection with the conveyance,
assignment or other transfer of real property interests under this Agreement, including local
governmental forms and FIRPTA affidavits, and such other documents as may reasonably be requested
by title insurers in order to issue owner’s title insurance coverage; provided that in no event
shall Xxxx Xxx be required to make any representations or warranties which are broader than the
representations and warranties which Xxxx Xxx is making in the form of conveyance attached as
Exhibit A to this Agreement (or provide any indemnities or undertake any actual or contingent
exposure with respect to any such matter).
Section 1.9 Title to the Properties. Xxxx Xxx makes no representations or warranties,
express or implied, with respect to the quality or condition of, or any encumbrances on, the title
to the Properties, and HBI or its applicable Subsidiary shall accept the rights, title and
interests of Xxxx Xxx or its applicable Subsidiary in and to each Owned Property and each Lease,
subject to any defects in the quality or condition of such title and any easements, covenants,
conditions, restrictions, reservations and other matters affecting, encumbering or relating to each
Property.
Section 1.10 Condition of Properties. Xxxx Xxx makes no representations or
warranties, express or implied, with respect to the condition of the Properties, and HBI or its
applicable Subsidiary shall accept each Property in such condition and state of repair as exists on
the Separation Date, with respect to the Owned Properties, and on the Actual Closing Date, with
respect to the Leased Properties, with all faults, limitations and defects (latent and apparent),
without any representations or warranties, express or implied, as to its quality, merchantability
or its fitness for any intended use or particular purpose. HBI, for itself and on behalf of its
Subsidiaries, acknowledges that it has had the opportunity to inspect the Properties to its full
satisfaction and is familiar with the Properties. The Parties obligations under this Agreement are
not conditioned upon the Properties being in any particular condition, and, any damage from
condemnation or any fire or other casualty or any other change in the condition of any Property
notwithstanding, Xxxx Xxx shall make, or cause its applicable Subsidiary to make, the conveyances,
assignments and transfers under Sections 1.1 and 1.2 of this Agreement, and HBI
shall accept, or cause its applicable Subsidiary to accept, all
such conveyances, assignments and transfers; provided, however, in the event of any such
damage from condemnation or fire or other casualty before the Separation Date, with respect to the
Owned Properties, or the Actual Closing, with respect to the Leased Properties, Xxxx Xxx or its
applicable Subsidiary shall confer with HBI regarding, and use reasonable best efforts to pursue
and assign to HBI or its applicable Subsidiary, all rights and interests of Xxxx Xxx or its
applicable Subsidiary in and to any proceeds of insurance arising from such fire or casualty or
proceeds arising from any condemnation proceeding at the time of the conveyance, assignment or
transfer for the relevant Property. To the extent that there is any damage from condemnation or
any fire or other casualty to any Leased Property prior to the Actual Closing, Xxxx Xxx shall
consult with HBI prior to the exercise of any right set forth in the respective Lease with respect
to such an event.
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Section 1.11 Lease Termination. If any Lease expires or is terminated prior to the
Separation Date, (a) Xxxx Xxx or its applicable Subsidiary shall not be required to assign or
transfer such Lease, (b) HBI or its applicable Subsidiary shall not be required to accept an
assignment or transfer of such Lease or a sublease of the Leased Property relating to such Lease,
and (c) neither Party shall have any further obligations with respect to such Lease or Leased
Property under this Agreement.
Section 1.12 Tenant’s Fixtures And Fittings. The Separation Agreement and the other
Ancillary Agreements shall govern the ownership, and the transfer of ownership, of any trade
fixtures and personal property located at each Property.
Section 1.13 Lease Extensions.
(a) HBI shall not enter into, and shall not permit its applicable Subsidiaries to enter into,
any agreement renewing any Guaranteed Lease or extending the term of any Guaranteed Lease unless
Xxxx Xxx is released from all Obligations, including any guaranty, surety and other security
relating to such Guaranteed Lease. If HBI or its Subsidiary wishes to remain in any Guaranteed
Property after the expiration of the current term of any Guaranteed Lease, HBI shall enter into, or
cause its applicable Subsidiary to enter into, a new lease of such Guaranteed Property under which
neither Xxxx Xxx nor any of its Subsidiaries shall have any Liabilities. If any Guaranteed Lease
provides (a) a right or option to renew such Guaranteed Lease or extend the term of such Guaranteed
Lease that the tenant under such Guaranteed Lease may exercise with respect to such Guaranteed
Lease or (b) that such Guaranteed Lease shall renew or the term of such Guaranteed Lease shall be
extended automatically if the tenant under such Guaranteed Lease fails to take an action to prevent
such automatic renewal or extension, then, HBI shall not exercise, and shall not permit its
applicable Subsidiary to exercise, such right or option to renew such Guaranteed Lease or extend
the term of such Guaranteed Lease, and HBI shall take such action, or shall cause its applicable
Subsidiary to take such action, as is necessary to prevent the automatic renewal of such Guaranteed
Lease or the automatic extension of the term of such Guaranteed Lease. Neither Xxxx Xxx nor any of
its Subsidiaries shall have any
Liabilities under (i) any Lease that expires or is subject to renewal on or after the
Separation Date, or (ii) any new lease executed in connection with the Branded Apparel Business on
or after the Separation Date.
(b) Notwithstanding the proceeding provisions of this Section 1.13, if HBI desires to exercise
a renewal or extension right in a Guaranteed Lease, then HBI may exercise such renewal or extension
right upon posting a bond, Letter of Credit, or other security (in each case on terms and in
amounts which are reasonably acceptable to Xxxx Xxx) to fully indemnify Xxxx Xxx’x Obligations
during any such extension term. HBI shall post any such bond, Letter of Credit or other security
not less than ten (10) business days prior to HBI’s exercise of such renewal or extension right.
Section 1.14 Costs And Expenses.
(a) HBI shall pay all out-of-pocket costs and expenses incurred in connection with obtaining
the Lease Consents and the Releases by each Landlord, including, without limitation, any consent,
processing or other fee charged by any Landlord for any Lease Consent
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or Release and any attorneys’
fees and any costs and expenses relating to re-negotiation or renewal of any Lease. HBI shall also
pay all out-of-pocket costs and expenses payable in connection with the conveyance or transfer of
the Owned Properties and the assignment or transfer of the Leases, including, without limitation,
title insurance premiums, escrow fees, recording fees and any transfer taxes.
(b) If and to the extent that a Landlord requires the payment of any material consent fee,
processing fee or other fee in consideration for a Lease Consent or Release, then Xxxx Xxx and HBI
shall consider in good faith whether there is a mutually agreeable alternative arrangement which
Xxxx Xxx and HBI could implement with respect to the Lease which would not require the payment of
such fee.
Section 1.15 Landlord Estoppel Certificates. Xxxx Xxx will use its reasonable best
efforts to provide estoppel certificates to landlords under the Guaranteed Leases, subject to the
receipt of factual representations from HBI in form and substance reasonably satisfactory to Xxxx
Xxx (and subject to receipt of an acknowledgement from HBI that it will be solely responsible for,
and will hold Xxxx Xxx harmless against, any Liabilities which may arise from such estoppel
certificate or the matters covered thereby).
Section 1.16 Title Insurance. At the request of HBI (and at HBI’s sole cost and
expense), Xxxx Xxx shall use its reasonable best efforts to obtain endorsements to existing title
insurance policies held by the Xxxx Xxx Group providing for the transfer of such policies to HBI or
its designated Subsidiaries. HBI may, at its own cost and expense, elect to obtain title insurance
policies and/or surveys with respect to any or all of the Owned Properties.
Section 1.17 Cooperation. In the event that (1) Xxxx Xxx or HBI identifies any real properties which should have been
included in the Owned Real Properties or Leased Real Properties (but were not so included due to
mistake or unintentional omission), then it shall notify the other and the parties shall cooperate
to transfer such Owned Real Property or Leased Real Property to HBI or an HBI Subsidiary in
accordance with the terms of this Agreement, (2) Xxxx Xxx identifies any records or files relating
to the Owned Real Properties or Leased Real Properties in the possession of Xxxx Xxx or a Xxxx Xxx
Subsidiary (which records or files have not previously been transferred to HBI or an HBI
Subsidiary), then Xxxx Xxx shall promptly cause such records or files to transferred to HBI and (3)
Xxxx Xxx or HBI identifies any obligation of Xxxx Xxx, whether direct or indirect, to make payments
under or otherwise be financially responsible with respect to any Leased Real Property (and as to
which a Release has not previously been sought under this Agreement due to mistake or unintentional
omission), then it shall promptly notify the other and HBI shall promptly seek a Release in
accordance with the terms of this Agreement.
ARTICLE II
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(a) HBI shall provide Xxxx Xxx with a copy of any written notice of default, notice of alleged
default or other notice that HBI or any of its Subsidiaries receives from a Landlord or a lender
with respect to any Lease that may result in an event of default, which copy shall be given to Xxxx
Xxx as soon as practicable and in any event no later than five (5) business days after HBI’s or any
of its Subsidiaries’ receipt of any such notice. Xxxx Xxx shall provide HBI with a copy of any
written notice of default, notice of alleged default or other notice that Xxxx Xxx or any member of
the Xxxx Xxx Group receives from a Landlord with respect to any Lease, which copy shall be given to
HBI as soon as practicable and in any event no later than five (5) business days after Xxxx Xxx’x
or any of the Xxxx Xxx Group members’ receipt of any such notice.
(b) HBI shall deliver to Xxxx Xxx, as soon as practicable and in any event no later than five
(5) business days after HBI’s or any of its Subsidiaries’ receipt of any notice described in
Section 2.1(a) hereof, a statement from HBI concerning HBI’s intentions with respect to said
default or alleged default. Xxxx Xxx shall reasonably cooperate with any attempt by HBI pursuant
to this Section 2.1(b) to cure or contest a default or alleged default.
(i) If HBI indicates an intent to contest said default or alleged default, then HBI
shall engage legal counsel reasonably acceptable to Xxxx Xxx and shall diligently pursue
such contest; provided, however, if Xxxx Xxx reasonably believes that HBI is not likely to
prevail in such contest and Xxxx Xxx reasonably believes that Xxxx Xxx or any member of the
Xxxx Xxx Group will suffer adverse consequences as a result of such default or alleged
default if it is not cured promptly, then, in any such event, Xxxx Xxx may (in its sole and
absolute discretion and without any obligation to do so) give
HBI written notice of Xxxx Xxx’x intention to cure the default of alleged default under
such Guaranteed Lease, and the parties shall be thereafter be governed by Section
2.1(b)(iii).
(ii) If HBI indicates its intent to cure such default or alleged default, HBI shall
cure said default or alleged default within the time period set forth in the applicable
Guaranteed Lease, or if said default or alleged default is of a character which does not
permit the curing of said default or alleged default within the time period set forth in the
applicable Guaranteed Lease, HBI shall eliminate, cure, obtain a waiver or otherwise
constructively address such default or alleged default and proceed diligently with respect
to said default or alleged default until cured, waived or eliminated, but, in any event, in
the manner required under the terms and conditions of the applicable Guaranteed Lease. So
long as HBI is working diligently to cure such default or alleged default in accordance with
the foregoing, Xxxx Xxx shall refrain from taking actions to cure such default or alleged
default and shall cooperate as reasonably requested by HBI with respect to curing such
default or alleged default or settling such dispute with the applicable Landlord;
provided, however, if HBI (1) provides written notice to Xxxx Xxx of its
intention not to cure said default or alleged default, (2) fails to send any notice of its
intentions, or (3) fails to cure a default or alleged default in accordance with its
previous notice to Xxxx Xxx, or if Xxxx Xxx reasonably believes that Xxxx Xxx or any member
of the Xxxx Xxx Group will suffer adverse consequences as a result of such default or
alleged default if it is not cured promptly, then, in any such event, Xxxx Xxx may (in its
sole and absolute discretion and without any obligation to do so) give HBI written notice of
Xxxx
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Xxx’x intention to cure the default or alleged default under such Guaranteed Lease and
the parties shall be thereafter be governed by Section 2.1(b)(iii).
(iii) If HBI has not cured such default or alleged default within five (5) days after
HBI’s receipt of Xxxx Xxx’x written notice to HBI pursuant to the final sentences of
Sections 2.1(b)(i) or 2.1(b)(ii) (or, if such default or alleged default cannot be cured
within such five (5) day period, HBI has not commenced to cure and continued to diligently
pursue such cure to completion within the grace or cure periods provided under, and
otherwise in accordance with the terms of the applicable Guaranteed Lease), then, regardless
of any stated intention of HBI, Xxxx Xxx may (in its sole and absolute discretion and
without any obligation to do so) cure such default or alleged default on behalf of HBI at
HBI’s sole cost and expense, and HBI, for itself and on behalf of each of its Subsidiaries,
hereby grants to Xxxx Xxx a license to enter upon any Leased Property for the purpose of
effecting such cure, subject to the provisions of such Guaranteed Lease.
(iv) If Xxxx Xxx or any member of the Xxxx Xxx Group incurs any Losses as a result of a
default or alleged default under any Guaranteed Lease by HBI or any of its Subsidiaries, and
if HBI does not pay to Xxxx Xxx the full amount of such Losses promptly after receipt of
notice of such Losses from Xxxx Xxx, Xxxx Xxx shall be entitled to exercise any and all
remedies available to it under this Agreement or under any other agreement between the
parties, at law or in equity.
(c) HBI, for itself and as agent for each of its Subsidiaries, hereby agrees to indemnify,
defend (or, where applicable, pay the costs of defense for) and hold harmless the Xxxx
Xxx Indemnitees from and against, and shall reimburse such Xxxx Xxx Indemnitees for, all
Losses incurred by the Xxxx Xxx Indemnitees by reason of (i) the incurrence by any Xxxx Xxx
Indemnitees of reasonable out-of-pocket costs of enforcement (excluding any internal administrative
costs of such Xxxx Xxx Indemnitees) of any terms, covenants or agreements contained in this
Agreement, (ii) any and all payments or performance required of any of the Xxxx Xxx Indemnitees
with respect to any Obligation, and (iii) any breach or default by HBI or any of its Subsidiaries
under any Guaranteed Lease, except to the extent any such Losses have been finally determined by a
court of competent jurisdiction to have resulted directly from acts or omissions after the
Distribution Date of any Xxxx Xxx Indemnitee which constitute gross negligence or willful
misconduct. If any Xxxx Xxx Indemnitee incurs any such Losses, HBI shall reimburse Xxxx Xxx for
the full amount thereof, within ten (10) days after receiving a written demand for such Losses from
Xxxx Xxx; provided that each demand for reimbursement by Xxxx Xxx shall be accompanied by copies of
supporting invoices and copies of paid receipts, cancelled checks or other reasonable proof of
payment or incurrence of liability by Xxxx Xxx, to the extent available. In the event that, with
the consent of Xxxx Xxx, HBI assumes the defense of any Xxxx Xxx Indemnitee with respect to any
Action arising out of any matter from and against which HBI is obligated to indemnify, defend and
hold harmless such Xxxx Xxx Indemnitee under this Section 2.1(c), such defense shall
include the employment of counsel reasonably satisfactory to HBI and Xxxx Xxx and the payment by
HBI of all of such counsel’s fees and expenses. Xxxx Xxx shall not be liable for the payment of
any settlement of any such Action effected by HBI without the written consent of Xxxx Xxx. HBI
shall not, without the prior written consent of Xxxx Xxx (not to be unreasonably withheld or
delayed), effect any settlement of any Action in respect of which any Xxxx Xxx Indemnitee is a
party and from and against which HBI is obligated to indemnify,
10
defend and hold harmless such Xxxx
Xxx Indemnitee under this Section 2.1(c), unless such settlement is paid, in the first
instance, by HBI and includes an unconditional release of all Xxxx Xxx Indemnitees from all
liability on all claims that are the subject matter of such Action. Xxxx Xxx agrees to cooperate
with HBI’s defense of any such Action, as reasonably requested by HBI.
Section 2.2 Termination Of Assignment Upon Breach Or Event Of Default. If a breach or
default occurs under any of the Guaranteed Leases and such breach or default remains uncured after
any applicable notice and cure period, then Xxxx Xxx, at its election, shall have the following
non-exclusive remedies:
(a) Xxxx Xxx shall be entitled to all of the rights and remedies which Xxxx Xxx may have under
this Agreement or any other Contract or at law or in equity;
(b) Xxxx Xxx shall have the right to terminate the assignment to HBI or its applicable
Subsidiary of Xxxx Xxx’x or its applicable Subsidiary’s right, title and interest in and to the
Guaranteed Lease with respect to which there exists a default following any notice and cure period
provided for in such Guaranteed Lease, which right Xxxx Xxx shall exercise by written notice to
HBI. Provided that the Landlord consented in the Landlord’s Consent to the re-assignment of the
Guaranteed Lease to Xxxx Xxx or such Lease is not a Lease Requiring Consent, upon receiving such
notice from Xxxx Xxx, such assignment shall be of no further force and effect; and HBI shall assign
or otherwise transfer, or cause its applicable Subsidiary to assign or otherwise transfer, to Xxxx
Xxx all of HBI or such Subsidiary’s right, title and interest in and to such Guaranteed Lease and
any related improvements and fixtures (but excluding any
furnishings, trade fixtures and business equipment) used in connection with the Leased
Property demised under such Guaranteed Lease (collectively, the “Related Property”). If a
Landlord did not consent in the Landlord’s Consent to the re-assignment of the Guaranteed Lease to
Xxxx Xxx and such Guaranteed Lease is a Lease Requiring Consent, then Xxxx Xxx may seek Landlord’s
consent to re-assignment of the Lease to Xxxx Xxx at HBI’s sole cost and expense, and, upon the
receipt of such consent, HBI (or its Subsidiary) shall perform such assignment and transfer called
for in the preceding sentence.
(c) If Xxxx Xxx exercises its right to terminate the assignment to HBI of any Guaranteed
Lease, Xxxx Xxx shall have the immediate right to possession and use of the Leased Property with
respect to which such breach or event of default exists and any Related Property associated with
such Leased Property, and, upon receiving the notice of termination of such Guaranteed Lease from
Xxxx Xxx, HBI shall quit and vacate, or shall cause its applicable Subsidiary and all other tenants
and occupants of such Leased Property, to quit and vacate such Leased Property in accordance with
the requirements of such Guaranteed Lease, broom clean, with all rubbish, debris and personal
property belonging to HBI or such Subsidiary, tenant or occupant (other than the Related Property)
having been removed. If HBI or any such Subsidiary, tenant or occupant shall fail to quit and
vacate such Leased Property after receipt of such notice of termination in accordance with the
requirements of the Guaranteed Lease, Xxxx Xxx shall have all rights and remedies available at law
and in equity to evict HBI, or such Subsidiary, tenant or occupant from such Leased Premises.
(d) HBI, for itself and as agent for each of its Subsidiaries, hereby irrevocably constitutes
and appoints Xxxx Xxx its true and lawful attorney-in-fact for the purpose of carrying
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out the
terms and provisions of this Agreement after a breach or default under this Agreement or under any
Lease (which continues after the giving of any notice and the expiration of any cure period
provided under such Lease), in HBI’s or such Subsidiary’s name and stead, (i) to secure and
maintain the use and possession of any Leased Properties with respect to which any breach or event
of default exists under any Guaranteed Lease and any Related Property; (ii) to take any and all
actions which Xxxx Xxx reasonably deems necessary to protect, maintain and secure its interest in
any such Leased Property and Related Property; and (iii) to put and substitute one or more agents,
attorney or attorneys-in-fact for HBI or any such Subsidiary to do, execute, perform and finish for
HBI or such Subsidiary those matters which shall be reasonably necessary or advisable, or which
HBI’s agent, attorney-in-fact or its substitute shall deem reasonably necessary or advisable, with
respect to such Leased Property or Related Property, including, without limitation, executing on
behalf of HBI any instrument deemed necessary or advisable by Xxxx Xxx to evidence the termination
of the previous assignment, and the assignment of HBI’s or its Subsidiary’s rights, title and
interests in and to such Guaranteed Lease under this Section 2.2, as thoroughly, amply and
fully as HBI could do personally. All such powers of attorney shall be deemed coupled with an
interest and shall be irrevocable.
Section 2.3 No Obligation To Pay Rent. Nothing in this Agreement, the instruments
assigning the Guaranteed Leases to HBI or its applicable Subsidiary, or any other agreement between
HBI and Xxxx Xxx creates any obligation on the part of Xxxx Xxx to pay any amounts due or owing
under any of the Guaranteed Leases.
ARTICLE III
Section 3.1 Merger.
(a) As long as the Total Guaranteed Rent exceeds $25 million HBI shall not consolidate with or
merge into any Person or permit any Person to consolidate with or merge into HBI (or enter into any
transaction involving or related to an acquisition of a controlling interest in HBI or a sale of
all or substantially all of HBI’s assets on a consolidated basis) (in each case, a
“Transaction”) unless:
(i) the surviving Person in such Transaction (the “Surviving Person”) (A) is
rated at least B+ by Standard & Poor’s or at least Ba3 by Xxxxx’x Investors Services, and
(B) the Surviving Person assumes in writing all of HBI’s obligations under this Agreement;
or
(ii) (A) the Surviving Person assumes in writing all of HBI’s obligations under this
Agreement, and (B) the Surviving Person delivers to Xxxx Xxx a Letter of Credit in the
Required Amount; or
(iii) HBI obtains the prior written consent of Xxxx Xxx (which may be granted or
withheld in Xxxx Xxx’x sole discretion).
(b) If the Surviving Person provides the Letter of Credit under Section 3.1(a)(ii),
then (i) the Required Amount shall be calculated as of a date within 60 days
12
prior to the closing
of the Transaction (such date to be mutually acceptable to Xxxx Xxx and the Surviving Person), (ii)
the Required Amount shall be re-calculated on an annual basis following the closing of the
Transaction and the Surviving Person shall provide Xxxx Xxx with a replacement Letter of Credit in
the Required Amount as so re-calculated and (iii) the Surviving Person shall be obligated to
maintain the Letter of Credit in the Required Amount until the date on which the Total Guaranteed
Rent falls below $25 million (such term, the “Letter of Credit Term”).
Section 3.2 Security Interests. As long as Xxxx Xxx’x duties under any Obligation
remain outstanding with regards to any Leased Properties or Leases, HBI shall not pledge,
hypothecate, collaterally assign, mortgage or otherwise encumber, or permit any lien or encumbrance
upon, or grant any security interest in, any of HBI’s rights, title or interests, as lessee or
assignee, in or to any of such Leased Properties or Leases, except to the extent any such lien,
encumbrance or security interest is subordinate to, and would not otherwise interfere with, the
interests, rights or remedies of Xxxx Xxx with respect to such Leased Property or Lease under the
terms of this Agreement; provided, however, that this Section 3.2 shall not apply to (a)
any lien or encumbrance on any Landlord’s interest in any Leased Property existing as of the
Separation Date or expressly permitted under a Lease; (b) any liens against the Properties for real
estate taxes or mechanics’, materialmens’ or
other liens based upon claims for work, labor or materials relating to any Property, if (i)
such taxes or claims are not due and payable or are being contested in good faith by appropriate
proceedings and (ii) HBI maintains adequate reserves for payment of such taxes or claims in
accordance with generally accepted accounting principles; and (c) any mortgage, deed of trust or
security interest on any Property or Lease in favor of the provider or providers of any senior
working capital facility and/or any senior term loan facility. It shall not be considered a
default of this Agreement if, within ten (10) business days after HBI receives notice of a lien
against a Property, HBI causes such lien to be released of record or provides Xxxx Xxx with
insurance against the same issued by a major title insurance company or such other protection
against the same as Xxxx Xxx shall accept in its sole and absolute discretion.
Section 3.3 Sharing Of Information. As long as any Obligations remain outstanding,
HBI will provide to Xxxx Xxx, no later than fifteen (15) days after the end of each fiscal quarter
of HBI, a certificate of HBI’s Chief Operating Officer or Chief Financial Officer that (a)
certifies the accuracy of an attached schedule listing each Guaranteed Lease and, with respect
thereto, (i) the location of the Property covered by, and the parties to, such Guaranteed Lease,
(ii) the expiration date of each Guaranteed Lease, and (iii) the current monthly rental payment by
HBI or its applicable Subsidiary and the date of any contractual escalation in the monthly rental
payment under each Guaranteed Lease, and (b) certifies that HBI is not in breach or default under
any of the Guaranteed Leases and that no event exists which, with the passage of time, would become
an event of breach or default (or, if applicable, identifies any exceptions).
Section 3.4 Limitation On Assignment. As long as any Obligations remain outstanding
with regards to a Guaranteed Lease, HBI or its applicable Subsidiary may assign or otherwise
transfer its rights, title and interests in and to under any such Guaranteed Lease, or sublease all
or substantially all of any the Guaranteed Property, to a third party (any such proposed assignee,
sublessee or transferee being a “Proposed Transferee,” and any such proposed assignment,
sublease or transfer being a “Proposed Transfer”); provided, however, that
(a) Xxxx Xxx consents to such Proposed Transfer, such consent not to be unreasonably withheld,
13
(b)
effective upon or before such Proposed Transfer, Xxxx Xxx is fully and unconditionally released
from any and all Obligations under such Guaranteed Lease, or (c) the Proposed Transferee is a
direct or indirect wholly-owned Subsidiary of HBI, under common control with HBI, or in control of
HBI at all times and HBI remains primarily liable for the Obligations as if HBI were still the
tenant or assignee under the applicable Guaranteed Lease or Guaranteed Leases. Any transfer in
violation of this Section 3.4 is void.
Section 3.5 Further Assurances. At any time and from time to time, upon the request of the
other Party, HBI and Xxxx Xxx shall each execute and deliver to the other Party such further
instruments and documents, and do such further acts and things, as such other Party may reasonably
request in order to effectuate fully the purposes of this Agreement. To the extent it is possible
without causing a default under any Lease, Xxxx Xxx shall take such other actions as may be
reasonably requested by HBI in order to
place HBI, insofar as reasonably possible, in the same position as if the Leases for any Leased
Property for which the Actual Closing did not occur on or before the Separation Date had been
transferred as contemplated hereby.
ARTICLE IV
Section 4.1 Entire Agreement; Incorporation Of Schedules And Exhibits. This Agreement
(including all Schedules and Exhibits referred to herein) and the Ancillary Agreements constitute
the entire agreement among the Parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both written and oral, among the Parties with
respect to the subject matter hereof and thereof. All Schedules and Exhibits referred to herein
are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
Section 4.2 Amendments And Waivers. This Agreement may be amended and any provision
of this Agreement may be waived, provided that any such amendment or waiver shall be binding upon a
Party only if such amendment or waiver is set forth in a writing executed by such Party. No course
of dealing between or among any Persons having any interest in this Agreement shall be deemed
effective to modify, amend or discharge any part of this Agreement or any rights or obligations of
any Party under or by reason of this Agreement.
Section 4.3 No Implied Waivers; Cumulative Remedies; Writing Required. No delay or
failure in exercising any right, power or remedy hereunder shall affect or operate as a waiver
thereof; nor shall any single or partial exercise thereof or any abandonment or discontinuance of
steps to enforce such a right, power or remedy preclude any further exercise thereof or of any
other right, power or remedy. The rights and remedies hereunder are cumulative and not exclusive
of any rights or remedies that any party hereto would otherwise have. Any waiver, permit, consent
or approval of any kind or character of any breach or default under this Agreement or any such
waiver of any provision of this Agreement must satisfy the conditions set forth in Section
4.2 and shall be effective only to the extent in such writing specifically set forth.
14
Section 4.4 Parties In Interest. Nothing in this Agreement, express or implied, is
intended to confer on any Person other than the Parties, and their respective successors and
permitted assigns, any rights or remedies of any nature whatsoever under or by virtue of this
Agreement.
Section 4.5 Assignment; Binding Agreement. Neither this Agreement nor any of the rights, interests or obligations under this Agreement
shall be assigned, in whole or in part, by operation of law or otherwise by any of the Parties
without the prior written consent of the other Parties, and any instrument purporting to make such
an assignment without prior written consent shall be void; provided, however, either Party may
assign this Agreement to a successor entity in conjunction with such Party’s reincorporation.
Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the Parties and their respective successors and permitted assigns. Any
contrary or inconsistent provision of this Agreement notwithstanding, this Agreement shall be
binding upon HBI and any successor or assign of HBI that, through a merger or consolidation,
succeeds to all or substantially all of HBI’s interest in the Guaranteed Leases or the Guaranteed
Properties.
Section 4.6 Notices. All notices, demands and other communications given under this
Agreement must be in writing and must be either personally delivered, telecopied (and confirmed by
telecopy answer back), mailed by first class mail (postage prepaid and return receipt requested),
or sent by reputable overnight courier service (charges prepaid) to the recipient at the address or
telecopy number indicated below or such other address or telecopy number or to the attention of
such other Person as the recipient party shall have specified by prior written notice to the
sending party. Any notice, demand or other communication under this Agreement shall be deemed to
have been given when so personally delivered or so telecopied and confirmed (if telecopied before
5:00 p.m. Eastern Standard Time on a business day, and otherwise on the next business day), or if
sent, one business day after deposit with an overnight courier, or, if mailed, five business days
after deposit in the U.S. mail.
Xxxx Xxx Corporation
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Facsimile Number: (000) 000-0000
Three First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Facsimile Number: (000) 000-0000
Hanesbrands Inc.
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Facsimile Number: (000) 000-0000
0000 Xxxx Xxxxx Xxxx Xxxx
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Attention: General Counsel
Facsimile Number: (000) 000-0000
Section 4.7 Severability. The Parties agree that (a) the provisions of this Agreement
shall be severable in the event that for any reason whatsoever any of the provisions hereof are
invalid, void or otherwise unenforceable, (b) any such invalid, void or otherwise unenforceable
provisions shall be replaced by other provisions which are as similar as possible in terms to such
invalid, void or otherwise unenforceable provisions but are valid and enforceable, and (c) the
15
remaining provisions shall remain valid and enforceable to the fullest extent permitted by
applicable law.
Section 4.8 Governing Law. All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Illinois, without giving effect to any choice of law or conflict of law
provision (whether of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
Section 4.9 Submission To Jurisdiction. EACH OF THE PARTIES IRREVOCABLY SUBMITS (FOR
ITSELF AND IN RESPECT OF ITS PROPERTY) TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN
CHICAGO, ILLINOIS, OR FORSYTH COUNTY, NORTH CAROLINA OR GUILDFORD COUNTY, NORTH CAROLINA, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREES THAT ALL CLAIMS IN
RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT; PROVIDED THAT
THE PARTIES MAY BRING ACTIONS OR PROCEEDINGS AGAINST EACH OTHER IN OTHER JURISDICTIONS TO THE
EXTENT NECESSARY TO ENFORCE THEIR RIGHTS UNDER THIS AGREEMENT UNDER STATE LAW OR TO IMPLEAD THE
OTHER PARTY IN ANY ACTION COMMENCED BY A THIRD PARTY THAT IS RELATED TO THIS AGREEMENT. EACH PARTY
ALSO AGREES NOT TO BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY OTHER COURT OR OTHER JURISDICTIONS UNLESS SUCH ACTIONS OR PROCEEDINGS ARE NECESSARY TO ENFORCE
ITS RIGHTS UNDER THIS AGREEMENT UNDER STATE LAW OR TO IMPLEAD THE OTHER PARTY IN ANY ACTION
COMMENCED BY A THIRD PARTY THAT IS RELATED TO THIS AGREEMENT. EACH OF THE PARTIES WAIVES ANY
DEFENSE OF INCONVENIENT FORUM TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES
ANY BOND, SURETY, OR OTHER SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT THERETO.
ANY PARTY MAY MAKE SERVICE ON ANY OTHER PARTY BY SENDING OR DELIVERING A COPY OF THE PROCESS TO
THE PARTY TO BE SERVED AT THE ADDRESS AND IN THE MANNER PROVIDED FOR THE GIVING OF NOTICES IN
SECTION 4.6 ABOVE. NOTHING IN THIS SECTION 4.9, HOWEVER, SHALL AFFECT THE RIGHT OF
ANY PARTY TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AT EQUITY. EACH PARTY
AGREES THAT A FINAL JUDGMENT IN ANY ACTION OR PROCEEDING SO BROUGHT SHALL BE CONCLUSIVE AND MAY BE
ENFORCED BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW OR AT EQUITY.
Section 4.10 Waiver Of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR
EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT
WITH COUNSEL), EACH PARTY EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING
RELATING TO
OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
16
Section 4.11 Amicable Resolution. The Parties desire that friendly collaboration will
develop between them. Accordingly, they will try to resolve in an amicable manner all disputes and
disagreements connected with their respective rights and obligations under this Agreement in
accordance with Section 6.12 of the Separation Agreement.
Section 4.12 Arbitration. Except for suits seeking eviction, injunctive relief or
specific performance or in the event of any impleader action arising from any proceeding commenced
by a third party that it is related to this Agreement, in the event of any dispute, controversy or
claim arising under or in connection with this Agreement (including any dispute, controversy or
claim relating to the breach, termination or validity thereof), the Parties shall submit any such
dispute, controversy or claim to binding arbitration in accordance with Section 6.13 of the
Separation Agreement.
Section 4.13 Construction. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be a substantive part of or to affect the
meaning or interpretation of this Agreement. Whenever required by the context, any pronoun used in
this Agreement shall include the corresponding masculine, feminine or neuter forms, and the
singular forms of nouns, pronouns and verbs shall include the plural and vice versa. Reference to
any agreement, document, or instrument means such agreement, document or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof, and if applicable
hereof. The use of the words “include” or “including” in this Agreement shall be by way of example
rather than by limitation. The use of the words “or,” “either” or “any” shall not be exclusive.
The Parties have participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties hereto, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement. The Parties agree that prior drafts of this Agreement shall be deemed not to
provide any evidence as to the meaning of any provision hereof or the intent of the Parties hereto
with respect hereto.
Section 4.14 Counterparts. This Agreement may be executed in multiple counterparts
(any one of which need not contain the signatures of more than one party), each of which shall be
deemed to be an original but all of which taken together shall constitute one and the same
agreement.
Section 4.15 Limitation On Damages. Each Party irrevocably waives, and no Party shall
be entitled to seek or receive, consequential, special, indirect or incidental damages (including
without limitation damages for
loss of profits) or punitive damages, regardless of how such damages were caused and
regardless of the theory of liability; provided that the foregoing shall not limit each
Party’s indemnification obligations set forth in the Indemnification and Insurance Matters
Agreement.
Section 4.16 Delivery By Facsimile Or Other Electronic Means. This Agreement, and any
amendments hereto, to the extent signed and delivered by means of a facsimile machine or other
electronic transmission, shall be treated in all manner and respects as an original contract and
shall be considered to have the same binding legal effects as if it were the original signed
version thereof delivered in person. At the request of any Party, each other Party shall
re-execute
17
original forms thereof and deliver them to all other Parties. No Party shall raise the
use of a facsimile machine or other electronic means to deliver a signature or the fact that any
signature was transmitted or communicated through the use of facsimile machine or other electronic
means as a defense to the formation of a contract and each such party forever waives any such
defense.
Section 4.17 Time of Essence. Time is of the essence with respect to all terms and
conditions of, rights and obligations under, this Agreement.
ARTICLE V
Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in
the Separation Agreement. In addition, for purposes of this Agreement, the following terms shall
have the following meanings:
“Action” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding
or investigation by or before any federal, state, local, foreign or international governmental
authority or any arbitration or mediation tribunal.
“Actual Closing” means, with respect to each Leased Property, the consummation of the
assignment or transfer of the rights, title and interest of Xxxx Xxx or its applicable Subsidiary
in and to the Lease of such Leased Property to HBI or one of its Subsidiaries to HBI.
“Ancillary Agreements” shall have the meaning set forth in the Separation Agreement.
“Branded Apparel Business” shall have the meaning set forth in the Separation
Agreement.
“Contract” means any contract, agreement, lease, license, sales order, purchase order,
instrument or other commitment that is binding on any Person or any part of its property under
applicable law.
“Guaranteed Leases” means any Leases under which Xxxx Xxx or any member of the Xxxx
Xxx Group shall, from time to time, have Obligations after the Separation but only for so long as,
and to the extent that, any such Leases continue in effect after Separation and only with
respect to those Obligations that remain unperformed or unfulfilled after Separation and at the
time such determinations may be made.
“Guaranteed Properties” means any Leased Properties leased, used or occupied under any
Guaranteed Leases.
“Indemnification and Insurance Matters Agreement” shall have the meaning set forth in
the Separation Agreement.
“Landlord” means (1) the holder of the landlord’s rights, title and interests in and
to any Lease from time to time, (2) with respect to the Lease Consents, any other Person from which
any consent or waiver is required to assign any Lease or sublease any Leased Property to HBI or
18
its
applicable Subsidiary on the terms and conditions of this Agreement, and (3) with respect to the
release of all Liabilities of Xxxx Xxx or any of its Subsidiaries under any Lease, any other Person
having the right to enforce any such Liabilities.
“Lease” means, with respect to each Leased Property, any lease, sublease or other
agreement under which Xxxx Xxx or its applicable Subsidiary (including, for the avoidance of doubt,
through any division of Xxxx Xxx or any such Subsidiary) holds a leasehold interest in such Leased
Property or has the right to use or occupy such Leased Property, together with any amendments or
extensions of such leases, subleases or agreements, any guaranty of such lease, sublease or
agreement by any member of the Xxxx Xxx Group, and any other agreements affecting such leases,
subleases or agreements, such leasehold interest or the use and occupancy of such Leased Property.
“Lease Consents” means all consents under, or amendments or waivers of any provision
of, any Leases required to (1) assign the Lease or sublease the applicable Leased Property to HBI
or its applicable Subsidiary on the terms and conditions of this Agreement or (2) in order to
prevent a breach or default thereunder, in connection with the consummation of the Separation or
Distribution.
“Lease Requiring Consent” means any Lease (1) which prohibits the assignment of such
Lease, or the sublease of the applicable Leased Property, to HBI or its applicable Subsidiary or
(2) under which the consent of any Landlord is required for assignment of such Lease, or the
sublease of the applicable Leased Property, to HBI or such Subsidiary, on the terms and conditions
of this Agreement or, in order to prevent a breach or default thereunder, in connection with the
consummation of the Separation or Distribution.
“Lease Requiring Notice” means any Lease under which notice to any Landlord is
required for assignment of such Lease, or the sublease of the applicable Leased Property, to HBI or
such Subsidiary, on the terms and conditions of this Agreement or, in order to prevent a breach or
default thereunder, in connection with the consummation of the Separation or Distribution.
“Leased Properties” means those real properties, including without limitation any
land, buildings, fixtures and other improvements constituting real property, which are leased or
otherwise used and occupied by Xxxx Xxx or one of its Subsidiaries and are part of the HBI
Assets (including without limitation those properties identified in Schedule 1.2),
together with (1) all easements, rights-of-way, restrictions, reservations and other rights and
interests appurtenant to such real properties and (2) all of Xxxx Xxx’x or such Subsidiary’s
rights, interests and obligations under any subleases, licenses or other agreements regarding the
use or occupancy of all or any portion of any such real property.
“Letter of Credit” shall mean an irrevocable standby letter of credit in the Required
Amount issued by a Qualified Bank for the benefit of Xxxx Xxx on terms and conditions satisfactory
to Xxxx Xxx.
“Liabilities” means all debts, liabilities, guarantees, assurances, commitments and
obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured,
19
liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due,
whenever or however arising (including, without limitation, whether arising out of any Contract or
tort based on negligence or strict liability) and whether or not the same would be required by
generally accepted principles and accounting policies to be reflected in financial statements or
disclosed in the notes thereto.
“Loss” and “Losses” mean any and all damages, losses, deficiencies,
Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest,
costs and expenses (including, without limitation, the costs and expenses of any and all Actions
and demands, assessments, judgments, settlements and compromises relating thereto and the costs and
expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses
incurred in the investigation or defense thereof or the enforcement of rights hereunder), including
direct and consequential damages, but excluding punitive damages (other than punitive damages
awarded to any third party against an indemnified party).
“Obtaining Party” shall have the meaning set forth in Section 1.6(b) of this
Agreement.
“Obligations” means all Liabilities of Xxxx Xxx or its Subsidiaries as lessee,
assignor, sublessor, guarantor or otherwise under or relating to any Lease, including, without
limitation, any guarantee, surety, letter of credit, security deposit or other security which Xxxx
Xxx or its Subsidiaries have provided or will provide to a Landlord with respect to any Lease, to
the extent such Liabilities have not expired, terminated or been fully and unconditionally
released.
“Owned Properties” means those real properties, including without limitation all land
and any buildings, fixtures and other improvements on such land, which are owned by Xxxx Xxx or one
of its Subsidiaries and are part of the HBI Assets (including without limitation those properties
identified in Schedule 1.1), together with (1) all easements, rights-of-way, restrictions,
reservations and other rights and interests appurtenant to such real properties and (2) such
owners’ rights, interests and obligations under any leases, subleases, licenses or other agreements
regarding the use or occupancy of all or any portion of any such real property.
“Parties” means the parties to this Agreement.
“Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political subdivision thereof.
“Properties” means the Owned Properties and Leased Properties.
“Qualified Bank” shall be a financial institution with a minimum rating of A by
Standard & Poor’s or a minimum rating of A2 by Xxxxx’x Investors Services.
“Release” means, with respect to each Lease, the unconditional release of all
Liabilities of Xxxx Xxx or its Subsidiaries under such Lease, including, without limitation, the
termination and return of any guarantee, surety, letter of credit, security deposit or other
security which Xxxx Xxx or any of its Subsidiaries has provided to any Landlord with respect to
such Lease.
“Required Amount” means 100% of the Total Guaranteed Rent.
20
“Xxxx Xxx Group” shall have the meaning set forth in the Separation Agreement.
“Xxxx Xxx Indemnitees” means Xxxx Xxx, each member of the Xxxx Xxx Group and each of
their respective successors and assigns, and all Persons who are or have been stockholders,
directors, partners, managers, managing members, officers, agents or employees of any member of the
Xxxx Xxx Group (in each case, in their respective capacities as such), and their respective heirs,
executors, administrators, successors and assigns.
“Separation” shall have the meaning set forth in the Separation Agreement.
“Separation Date” has the meaning set forth in the Separation Agreement.
“Subsidiary” of any Person means a corporation or other organization whether
incorporated or unincorporated of which at least a majority of the securities or interests having
by the terms thereof ordinary voting power to elect at least a majority of the board of directors
or others performing similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries; provided, however, that no
Person that is not directly or indirectly wholly-owned by any other Person shall be a Subsidiary of
such other Person unless such other Person controls, or has the right, power or ability to control,
that Person. For purposes of this Agreement, it is understood that HBI and each Subsidiary of HBI
after the Separation shall be deemed not to be a Subsidiary of Xxxx Xxx after the Separation.
“Total Guaranteed Rent” means the minimum aggregate rent, additional rent and other
charges, costs and expenses that HBI or any of its Subsidiaries is required to pay to the Landlords
over the remaining life of the Guaranteed Leases, regardless of such Person’s volume of business.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, each of the parties has caused this Real Estate Matters Agreement to be
executed on its behalf by its officers hereunto duly authorized on the day and year first above
written.
| XXXX XXX CORPORATION | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx
Senior Vice President |
|||||
| HANESBRANDS INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Xxxxxxx X. Xxxx Chief Executive Officer |
||||||
22
SCHEDULE 1.1
OWNED PROPERTIES
23
SCHEDULE 1.1
OWNED PROPERTITES
OWNED PROPERTITES
| BU | Total Bldg SF | Plant Name | State | Address | Country | |||||||||
1 |
International | 60127 | S.A.) | Alsina 0000, Xxx Xxxxxx, Xxxxxx Xxxxx | Xxxxxxxxx | |||||||||
2 |
International | 20811 | S.A.) | San Xxxx | Argentina | |||||||||
3 |
International | 13285 | S.A.) | 0 xx Xxxxxxx 000, Xxx Xxxxxx, Xxxxxx Xxxxx | Xxxxxxxxx | |||||||||
4 |
International | 8211 | S.A.) | Xxxxxxxx 0000, Xxxxxx Xxxxx | Xxxxxxxxx | |||||||||
5 |
International | 289480 | Cutting, Packing, Dist., Head Xxxxxx | 0000 Xxxxxxxxxxxxx Xxxx., Xxxx, Xxxxxxxx, (XX) X0X 0X0 | Xxxxxx | |||||||||
6 |
International | 27300 | Sewing Plant | 0000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxx, (XX) X0X 0X0 | Xxxxxx | |||||||||
7 |
Intimates/Hosiery | 110011 | Bali - Cartago | Cartago | Costa Rica | |||||||||
8 |
Underwear/Socks | 76433 | Heredia | Industria Texilera Del Este, Heredia | Costa Rica | |||||||||
9 |
Underwear/Socks | 75000 | Cartex | Parque Industrial Cartago, Cartago | Costa Rica | |||||||||
10 |
Underwear/Socks | 75000 | Cretex | Costado Este del Liceo, Xxxxxx | Xxxxx Rica | |||||||||
11 |
Underwear/Socks | 74500 | Cartago | Industria Texilera Del Este, Heredia | Costa Rica | |||||||||
12 |
Intimates/Hosiery | 66505 | Tucurrique | Costa Rica | ||||||||||
13 |
Intimates/Hosiery | 43859 | Paraiso | Costa Rica | ||||||||||
14 |
Intimates/Hosiery | 35893 | Bali - Cartago | Contiguo Al Cementario, Cartago | Costa Rica | |||||||||
15 |
Underwear/Socks | 27000 | Cartex | Parque Industrial Cartago, Cartago | Costa Rica | |||||||||
16 |
Intimates/Hosiery | 530000 | Dos Xxxx (new 5/06) | D.R. | ||||||||||
17 |
Underwear/Socks | 88000 | Las Americas | Xxxx Xxxxxx Las Americas, Santa Xxxxxxx | D.R. | |||||||||
18 |
Underwear/Socks | 86000 | Las Americas | Xxxx Xxxxxx Las Americas, Santa Xxxxxxx | D.R. | |||||||||
19 |
Underwear/Socks | 74000 | San Xxxxxx | Xxxx Franca San Xxxxxx, Santa Xxxxxxx | D.R. | |||||||||
20 |
Underwear/Socks | 70000 | SU UW Lacaleta | Xxxx Xxxxxx Las Americas, Santa Xxxxxxx | D.R. | |||||||||
21 |
Intimates/Hosiery | 94584 | Jiboa | Xxxx Xxxxxx El Pedrigal | El Salvador | |||||||||
22 |
Underwear/Socks | 92492 | El Pedrigal | Xxxx Xxxxxx El Pedrigal, El Xxxxxxx | El Salvador | |||||||||
23 |
Intimates/Hosiery | 118020 | Villanueva | ZIP Buena Vista, Villanueva | Honduras | |||||||||
24 |
Sportswear | 94811 | Xxxxx Choloma | ZIP Choloma, Choloma, Cortes | Honduras | |||||||||
25 |
Underwear/Socks | 60000 | La Ceiba | Zona Libre Manufactura Celbena, La Ceiba | Honduras | |||||||||
26 |
Underwear/Socks | 55812 | San Xxxxx | ZIP Buenavista, Villanueva, Cortes | Honduras | |||||||||
27 |
Intimates/Hosiery | 53555 | Choloma | ZIP Choloma, Choloma | Honduras | |||||||||
28 |
International | 218039 | SLBA LAN (Knit) | Col., Renovacion | Mexico | |||||||||
29 |
Sportswear | 171019 | Xxxxxxxx 0 | Xxxxxxx Xxxxxxxxx Xxxxx, Xxxxxxxx | Xxxxxx | |||||||||
00 |
Sportswear | 166853 | San Xxxxx | #26 Xxxxx Xxxxxxxx Xxx, Xxxxxxxx | Xxxxxx | |||||||||
00 |
Sportswear | 121022 | Xxxxxx | Blvd. Xxxxxx Xxxxx Xxxxxxx, Xxxxxxxxx X. Mode | Mexico | |||||||||
32 |
Sportswear | 110344 | Xxxxxxx | Xxxxxxxxx 00 0000, Xxxxxxx, Xxxxxxxx | Xxxxxx | |||||||||
33 |
Sportswear | 100810 | Nueva Xxxxxx | Xxxxxxxxx 00 XX 000, Xxxxxx, Xxxxxxxx | Xxxxxx | |||||||||
34 |
Sportswear | 95968 | Xxxxxxxx 0 | Xxxxxxxx, Xxxxxxxx | Xxxxxx | |||||||||
00 |
Intimates/Hosiery | 68171 | Xxxxxxx | XX 000 Xxxxxx, Xxxxxx | Xxxxxx | |||||||||
36 |
International | 63238 | SLBA LAN (Knit) | AGS Pabellon Artteaga | Mexico | |||||||||
37 |
International | 54133 | SLBA LAN (Knit) | Taller 174 L. Boturini | Mexico | |||||||||
38 |
International | 36112 | SLBA LAN (Knit) | Col., Renovacion | Mexico | |||||||||
39 |
International | 27706 | SLBA LAN (Playtex) | Xxxxxxxxx 0 | Xxxxxx | |||||||||
00 |
International | 26864 | SLBA LAN (Playtex) | Naucalpan X.0 | Xxxxxx | |||||||||
00 |
Xxxxxxxxxxxxx | 00000 | XXXX LAN (Knit) | Taller 179 A. Graficas | Mexico | |||||||||
42 |
International | 10731 | SLBA LAN (Playtex) | Xxxxxxxxx 0 | Xxxxxx | |||||||||
00 |
International | 0 | SLBA LAN (Playtex) | Colon | Mexico | |||||||||
44 |
Intimates/Hosiery | 241419 | Clarksville | AR | Xxxxx & Xxxxx Xx. Clarksville, AR | USA | ||||||||
45 |
Textiles | 736453 | Xxxxx Gap | GA | Xxxx Xxxx Xxxxxxx Xx., Xxxxx Gap., Georgia | USA | ||||||||
46 |
Sportswear | 000000 | Xxxxx Xxxxx | XX | Xxxxx Xxxx, XX | XXX | ||||||||
47 |
Intimates/Hosiery | 840452 | Weeks | NC | 401 Xxxxx Mill Rd., W-S. NC | USA | ||||||||
48 |
Textiles | 000000 | Xxxxx Grove | NC | X. Xxxx Street, China Grove, North Carolina | USA | ||||||||
49 |
Underwear/Socks | 000000 | Xxxxxxxxx Xx. | XX | 000 Xxxxx Xxxxxxxxx Xxxx, X-X. NC | USA | ||||||||
50 |
Intimates/Hosiery | 000000 | Xxxxxxxx (Xxxxxxxxx) | XX | 000 Xxxxxxxx Xxxx, Xxxxx Xxxxxxxx, XX | USA | ||||||||
51 |
Textiles | 512406 | Eden | NC | Xxxx Road, Eden, North Carolina | USA | ||||||||
52 |
Sportswear | 000000 | Xxx Xxxxxx | XX | 1000 Xxxxx Mill Road, W-S. NC | USA | ||||||||
53 |
Intimates/Hosiery | 429578 | Canterbury | NC | 000 Xxxxxxxxxx Xx. Xxxxxxxx, XX | USA | ||||||||
54 |
Textiles | 422171 | Forest City | NC | W. Main Street, Forest City, North Carolina | USA | ||||||||
55 |
Sportswear | 398000 | Eden Yarns | NC | 000 Xxxx Xxxx, Xxxx. XX | USA | ||||||||
56 |
Underwear/Socks | 391888 | Annapolis | NC | 2655 Annapolis, W-S, NC | USA | ||||||||
57 |
Underwear/Socks | 385310 | Kennersville | NC | 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxxxxx, XX | USA | ||||||||
58 |
Sportswear | 380000 | Xxxxxx Xxxx | XX | 00000 Fielderest Road, Laurel Hill, NC | USA | ||||||||
59 |
Intimates/Hosiery | 380000 | Aleo | NC | 00 0xx Xxx., Xxxxxxxxxx, XX | XXX | ||||||||
60 |
Textiles | 290000 | Morganton | NC | USA | |||||||||
61 |
Textiles | 271659 | Sanford | NC | 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx | XXX | ||||||||
62 |
Sportswear | 2300000 | I-95 | NC | 0000 X. 0xx Xxxxxx, Xxxxxxxxx, XX | XXX | ||||||||
63 |
Textiles | 223836 | Gastonia | NC | Poplar Street, Gastonia, North Carolina | USA | ||||||||
64 |
Textiles | 206000 | Advance | NC | Xxxxxxxxx Road, Adnance, North Carolina | USA | ||||||||
65 |
Underwear/Socks | 201000 | Mt. Airy | NC | 000 Xxxx Xxxx Xxxxxx Xx. Xxxx, XX | XXX | ||||||||
66 |
Xxxxxxxxx/Xxxxxxx | 000000 | Xxxxxxxx | XX | 000 Xxxxxxxx Xx., Xxxxxxxxxxx, XX | USA | ||||||||
67 |
Underwear/Socks | 138892 | Asheboro | NC | 000 Xxxxxxxxxx Xxxx, Xxx., Xxxxxxxx, XX | USA | ||||||||
68 |
Intimates/Hosiery | 000000 | Xxxxxxx | XX | 000 Xxxxxxx Xx. Xxxxxxxxxxx, XX | XXX | ||||||||
69 |
Textiles | 103570 | Artington | NC | USA | |||||||||
70 |
Underwear/Socks | 66918 | Xxxxxxx | NC | 4801 Bethnia Tation Road, W-S. NC | USA | ||||||||
71 |
Textiles | 66925 | 490 Xxxxxx | XX | 000, X. Xxxxx Xxxx Xxxx, Xxxxxxx-Xxxxx. X.X. | XXX | ||||||||
72 |
Sportswear | 64000 | Starlite | NC | 0000 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX | XXX | ||||||||
73 |
Lumberton Xxxx Property | NC | Lumberton - Xxxx Property | USA | ||||||||||
74 |
Underwear/Socks | 35000 | Narrow Fabrics | NC | 000 XX Xxxxxxx 000 Xxxxx, Xxxxxxx, XX | XXX | ||||||||
75 |
Underwear/Socks | 000000 | Xxxxxxx Xxxxxxxx XX | XX | 000 Xxxxxxx Xxx, Xxxxxxx, XX | XXX | ||||||||
76 |
Underwear/Socks | 132000 | Tamaqua Tidewood DC | PA | 00 Xxxxxxxx Xxxxxx, Xxxxxxx, XX | XXX | ||||||||
77 |
Underwear/Socks | 00000 | Xxxxxxx Xxxxxxx XX | XX | 00 Xxxxxxx Xxxxxx, Xxxxxxx, XX | XXX | ||||||||
78 |
Textiles | 498912 | Xxxxxxxxx | XX | Xxxxxxx 00 Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx | XXX | ||||||||
79 |
Underwear/Socks | 236000 | Xxxxxxxx | SC | 00000 Xxxxxxxxx Xxxx, Xxxxxxxx, XX | XXX | ||||||||
80 |
Intimates/Hosiery | 143791 | Xxxxxx | XX | Xxxx 000, Xxxxxx, XX | XXX | ||||||||
81 |
Textiles | 0 | Xxxxxxxxx | XX | Xxxxxxx 00 Xxxxx, Xxxxxx, Xxxxx Xxxxxxxx | XXX | ||||||||
82 |
Textiles | 607577 | Mountain City | TN | Xxxxxxx 000 Xxxxx Xxxxxxxx Xxxx, Xxxxxxxxx | XXX | ||||||||
83 |
Sportwswear | 744000 | VSC | VA | 000 Xxxxxx Xxxxx Xxxx, Xxxxxxxxxxxx, XX | XXX | ||||||||
84 |
Textiles | 254603 | Galax (Textiles) | VA | 0000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx | XXX | ||||||||
85 |
Intimates/Hosiery | 243840 | Liberty | VA | 000 Xxxxxxxxxx Xx, Xxxxxx, XX | XXX | ||||||||
86 |
Textiles | 176560 | Galax (Yarn) | VA | 0000 Xxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx | XXX | ||||||||
24
SCHEDULE 1.2
LEASED PROPERTIES
LEASED PROPERTIES
| SLC Contracting Entity | Landlord | Start Date | Property Location | |||
Xxxx Xxx Corporation
(formerly in name of
Champion Products, Inc.)
|
Xxxxxxxxx XXX 00/00 XXX 00/00, X.X. (formerly Chedren, Inc.) | 7/1/1993 | 105,723 sq. ft.@ 000 Xxxxxxxxx Xxxxx, Xxxxxxx-Xxxxx, XX | |||
Xxxx Xxx Corporation
|
Twin City Properties, Corp. | 7/31/2003 | 000 Xxxxx Xxxx Xxxx Xxxxxx Xxxxxxxx, Xxxxxxx-Xxxxx, XX | |||
Xxxx Xxx Hosiery, a
division of Xxxx Xxx
Corporation
|
Xxxx Xxxxxxxxx | 3/10/2005 | Rental of bldg. at 000 Xxxxxx Xxxxxxxxxx Xx., Xxxxxxxxxxx, XX | |||
Xxxx Xxx Corporation
|
Twin City Properties, Corp. | 7/31/2003 | 450 and 000 Xxxxx Xxxx Xxxx Xxxxxxxxx, Xxxxxxx-Xxxxx XX | |||
Playtex Apparel, Inc.
|
XXX Capital Partners, Ltd. fka Metropolitan Parkway West 1994, Ltd. | 9/12/2000 | 1,162 square feet @4011 X. Xxxxx Xxxxxxx, Xxxxx 000, Xxxxx, XX | |||
Xxxx Xxx Corporation
|
Commerce Plaza, LLC | 10/1/1999 | Bentonville office, Xxxx 00 & 00, Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx | |||
Xxxx Xxx Underwear and
Xxxx Xxx Sportswear
|
Xxxxx Xxxx | 4/4/2005 | Warehouse @ 0000 Xxxxxxxxx Xx., Xxxxxxx-Xxxxx, XX | |||
Xxxx Xxx Corporation (as
successor to Scotch
Maid, Inc.)
|
WOHIO Holdings, Inc. | 6/12/1992 | 00xx Xxxxx, 00xx Xxxx 00xx Xx., Xxx Xxxx Xxxx | |||
Xxxx Xxx Corporation (as
successor in interest to
Playtex Apparel, Inc.)
|
WOHIO Holdings, Inc. | 10/10/1989 | 0xx Xxxxx, 00xx Xxxx 00xx Xx., Xxx Xxxx Xxxx | |||
Xxxx Xxx Intimate
Apparel, an operating
division of Xxxx Xxx
Corporation
|
Xxxxx Xxxxxxx Properties, L.L.C. | 9/1/2004 | 54,776 sq.ft. @ Xxxxx and Xxxxxxx Xx., Dover, Delaware | |||
Xxxx Xxx Corporation,
for its division of Xxxx
Xxx Hosiery
|
Xxxxx Land Company, LLC |
1/12/2001 | 000 Xxxxxxxxxx Xx., Xxxxxxxxxx, XX | |||
Bali Company, A Division
of Xxxx Xxx Corporation
|
260/61 Madison Equities Corp. | 0/0/0000 | 00xx xxxxx, 000 Xxxxxxx Xxx., Xxx Xxxx Xxxx |
25
SCHEDULE
1.2 (cont’d)
| SLC Contracting Entity | Landlord | Start Date | Property Location | |||
Xxxx Xxx Corporation
(originally Xxxxx
Knitwear/Printables,
Inc., a wholly owned
subsidiary of Xxxx Xxx
Corporation)
|
Highwoods Realty Limited Partnership (originally Forsyth/Stratford Partners) |
2/26/1987 | 0000 XxxxXxxxx Xxxx, Xxxxxxx-Xxxxx, XX (Warehouse) |
|||
Xxxx Xxx Intimate
Apparel, a division of
Xxxx Xxx Corporation
|
260/261 Madison Equities Corp. | 2/1/2002 | 0xx Xxxxx, 000 Xxxxxxx Xxx., Xxx Xxxx Xxxx | |||
Xxxx Xxx Sock Company
|
Xxxx Companies, Inc. | 10/23/2003 | Warehouse at 0000 Xxxxx Xxxx Xxxxx, 0000 Xxxxxxx 00 Xxxxx, Xxxxxxxxxxxx, XX | |||
Xxxx Xxx Corporation
|
Industrial Property Fund IV, L.P. | 6/112001 | 0000 Xxxx Xxxxxxxxx Xxxxx Xxxx., Xxxxxx, XX | |||
Xxxx Xxx Underwear, a
division of Xxxx Xxx
Corporation
|
Highwoods Industrial North Carolina, LLC |
7/1/2005 | 446,818 sq. ft. at 000 Xxxxxxxxxxx Xxxx, Xxxxx Xxxx, XX 00000 | |||
Xxxx Xxx Underwear, a
division of Xxxx Xxx
Corporation
|
Xxxxx Transfer and Storage Company | 7/1/2005 | Warehouse No 1, 0000 Xxxxxxx, Xx., Xxxxxxx-Xxxxx, XX | |||
Xxxx Xxx Intimate Apparel
|
Xxxxxxx County Fruit Growers, Inc. | 5/1/2003 | Warehouse on Route 8, Wooline, VA | |||
Xxxx Xxx Direct, LLC
(successor in interest
to Net Apparel, LLC,
L’eggs Brands, Inc., and
Xxxx Xxx Corporation on
behalf of its Direct
Marketing Division and
L’eggs Brands, Inc.)
NOTE: Payment
Guaranteed by Xxxx Xxx
Corporation
|
G-T Gateway, LLC (successor in interest to Winston-Salem Industrial, LLC, Highwoods Realty Limited Partnership, and The Xxxxxxx Companies) | 7/8/1988 | 000 Xxxxxxxxxx Xxxx Xxxxx, Xxxxx Xxxx, XX |
26
SCHEDULE
1.2 (cont’d)
| SLC Contracting Entity | Landlord | Start Date | Property Location | |||
Xxxx Xxx Underwear,
a division of Xxxx
Xxx Corporation
|
Gateway Holdings, LLC |
4/13/1998 | Warehouse space at Gateway Business Center, 0000 Xxx Xxx., Xxxxxxx-Xxxxx, XX | |||
Xxxx Xxx Underwear,
a division of Xxxx
Xxx Corporation
|
Highwoods Realty Limited Partnership |
9/28/2001 | Warehouse space at 0000 Xxxxxx Xx., Xxxxxxx-Xxxxx, XX 00000 | |||
**Xxxx Xxx Direct,
a division of Xxxx
Xxx corporation
|
Flatwoods Factory Outlet Stores, Inc. | 6/09/1997 | L’eggs Xxxxx Bali Playtex, Flatwoods Factory Outlet Shopping Center, Sutton, WV | |||
**Xxxx Xxx Direct,
a division of Xxxx
Xxx corporation
|
COROC/Hilton Head II, L.L.C. c/o Tanger Properties Limited Partnership, | 9/16/2003 | L’eggs Xxxxx Bali Playtex, Store A132, Hilton Head Factory Stores 2, Bluffton, SC | |||
**Xxxx Xxx Direct,
a division of Xxxx
Xxx corporation
|
R.R.Bayside, Inc. | 3/15/2003 | Socks Galore, Store 000 Xxxxxxxx Xxxxxxx Xxxxxxxx, XX |
|||
**Xxxx Xxx Direct,
a division of Xxxx
Xxx corporation
|
SunCor Development Company |
12/04/2001 | L’eggs Xxxxx Bali Playtex Express Store, Xxxxx X0, Xxxx Xxxxxx Xxxxxxxxxx Xxxx, Xxxxxxxx, XX |
| ** | The assignee is to be Xxxx Xxx Direct, LLC, a Colorado limited liability company and not Hanesbrands Inc. |
EXHIBIT A
FORM CONVEYANCE FOR OWNED PROPERTIES 1
Prepared by and after recording mail to: 2
Xxxx Xxx Corporation, a Maryland corporation [or the applicable Subsidiary] with its principal
office at with its principal office at
(“Grantor”), in
consideration of $10.00 4 and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby grants 5 to Hanesbrands Inc., a
Maryland corporation [or the applicable Subsidiary] with its principal office at
(“Grantee”),6
with SPECIAL WARRANTY
COVENANTS, the real property described on Exhibit A attached to this Deed (the “Property”).
The Property, the grant of the Property pursuant to this Deed, and the warranties and covenants
under this Special Warranty Deed are subject to (a) all easements, right-of-way, covenants,
conditions, restrictions, restrictive covenants, reservations, mortgages, deeds of trust, security
interests, liens, attachments, encumbrances and other matters of record or arising by statute
affecting, encumbering or relating to the Property, (b) any lease or other agreement granting a
right to use or occupy the Property, (c) any liens of mechanics and materialmen securing charges
for work performed on, or otherwise relating to, the Property, (d) any matters that would be
disclosed by a complete and accurate survey of the Property, and (e) all real estate taxes,
assessments and betterments assessed with respect to the Property, which, by accepting and
recording this Deed, Grantee assumes and agrees to pay.
| 1 | The form of Deed (including any formatting requirements) will be adapted as necessary to conform to local requirements, customs and practices to the extent necessary to render such form effective and, if requested by HBI, recordable. | |
| 2 | Insert name and address of local attorney. | |
| 3 | A separate Deed should be produced for each county in which any Owned Property is located (and covering all Owned Property in that county). | |
| 4 | Some states and counties may require a statement of the value attributed to the Owned Property covered by each Deed. | |
| 5 | The granting language required for effective conveyances under state law. | |
| 6 | Insert name, organizational jurisdiction and address of Buyer. |
Grantor executes this Deed as of , 2006. 7
| XXXX XXX CORPORATION, a Maryland corporation [or the applicable Subsidiary] |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
STATE OF 8
COUNTY OF
The attached Deed was acknowledged before me this day of
, 2005, by
, of Xxxx Xxx corporation, a Maryland corporation [or the
applicable Subsidiary], on behalf of said corporation.
| Print Name: | ||||||
| My commission expires: | ||||||
| 7 | The form of Deed should conform to any requirements and formalities for effective execution of deeds and recordable instruments under state law, including the number of signatories and witnesses (if any), execution by specific officers of corporations, attestation by a corporate secretary, and the appropriate form of acknowledgement for instruments executed in a different jurisdiction but recorded locally. | |
| 8 | The form of acknowledgement should conform to the requirements applicable in the jurisdiction of the Owned Property. |
EXHIBIT B
FORM ASSIGNMENT FOR LEASED PROPERTIES 9
Prepared by and after recording mail to: 10
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this “Assignment and Assumption”) made as of
, 2006 (the “Effective Date”), between Xxxx Xxx Corporation, a Maryland
corporation [or the applicable Subsidiary] with its principal office at
(“Assignor”), and Hanesbrands Inc., a Maryland corporation
[or the applicable Subsidiary] with its principal office at
(“Assignee”).
WHEREAS Assignor wishes to assign the Leases to Assignee, and Assignee wishes to accept such
assignment and assume the Leases, on the terms of the Real Estate Matters Agreement entered into as
of , 2006, between Assignor [or Xxxx Xxx] and Assignee [or HBI] (the “Real Estate Matters
Agreement”);
| 9 | The form of Assignment and Assumption of Leases, including any formatting requirements, will be adapted as necessary to conform to local requirements, customs and practices to the extent necessary to render such form effective and, if requested by HBI, recordable | |
| 10 | Insert name and address of a local attorney. | |
| 11 | A separate Assignment and Assumption of Leases should be produced for each county in which any Leased Property is located (and covering all Leased Property in that county). |
1. As of the Effective Date, Assignor hereby assigns and transfers to Assignee, without any
warranties, express or implied, all of Assignor’s rights, title and interests in and to, and
obligations arising or accruing on or after the Effective Date under, the Leases, together with
Assignor’s rights, title and interests in and to, and obligations arising or accruing on or after
the Effective Date with respect to, (a) all easements, rights-of-way, restrictions, reservations
and other rights and interests appurtenant to the Leased Properties, (b) any subleases, licenses or
other agreements regarding the use or occupancy of all or any portion of any Leased Property, and
(c) any guarantee, surety, letter of credit, security deposit or other security provided under the
Leases (the “Appurtenant Rights and Interests”), subject to the terms and conditions of the
Real Estate Matters Agreement.
2. Assignee hereby accepts such assignment and transfer and assumes, and agrees to pay,
perform, observe and discharge promptly when due, all of Assignor’s obligations arising or accruing
on or after the Effective Date under the Leases or with respect to the Appurtenant Rights and
Interests, subject to the terms and conditions of the Real Estate Matters Agreement.
[SIGNATURE PAGE FOLLOWS]
| 12 | Some states and counties may require a statement of the value attributed to the Leased Property covered by each Assignment and Assumption. |
| XXXX XXX CORPORATION, a
Maryland corporation [or the applicable Subsidiary] |
HANESBRANDS INC., a Maryland corporation [or the applicable Subsidiary] | |||||||||
By:
|
By: | |||||||||
Name:
|
Name: | |||||||||
Title:
|
Title: | |||||||||
STATE OF 14
COUNTY OF
The attached Assignment and Assumption of Leases was acknowledged before me this day of
, 2005, by
,
of Xxxx Xxx corporation, a
Maryland corporation [or the applicable Subsidiary], on behalf of said corporation.
| Notary Public | ||||||
| Print Name: | ||||||
STATE OF 15
COUNTY OF
The attached Assignment and Assumption of Leases was acknowledged before me this day of
, 2005, by
, of
| 13 | The form of Assignment and Assumption should conform to any requirements and formalities for effective execution of recordable instruments under state law, including the number of signatories and witnesses (if any), execution by specific officers of corporations, attestation by a corporate secretary, and the appropriate form of acknowledgement for instruments executed in a different jurisdiction but recorded locally. | |
| 14 | The form of acknowledgement should conform to the requirements applicable in the jurisdiction of the Leased Property. | |
| 15 | The form of acknowledgement should conform to the requirements applicable in the jurisdiction of the Leased Property. |
Hanesbrands Inc., a Maryland corporation [or the applicable Subsidiary], on behalf of said
corporation.
| Notary Public | ||||||
| Print Name: | ||||||
Schedule A
List of Leased Properties