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Home My WebLink About98-04327 \~';. ~ ~ 1 " ~ ~ I Y)! ~I i ~ J' \, \ \ , , " ! 1 j J I 'I 'j' " J il p.' ..J~ ryl ~ j , ['-.'1 . 'OJ ~. -,;:~';;,';,~;~C~:~...,........_. ~r.:.:,: ~ CAMP HILL SHOPPING CENTER ASSOCIATES. IN TilE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA Plaintiff v, NO, c;o~ 4'3)-7 (l~L~ CIVIL ACTION. LAW JOHN LEE D/B/A TOKYO De/endant CONFESSIO~N OF .HJDGMEN'( Pursuantlo thc authority containcd in the warrant of attorney. a true and correct copy of which is attached to thc Complaint filcd in this action. I appear for thc Defendant and confess judgmcnt in favor of Plaintiff and against the Dcfendant as follows: Principal amount duc .,',.""..",."...."" $ 51.229.20 Attorncys' Commission (5%) ... ................ $2.561 .46 Tohll ........ $53,790.66* 'Plus statutory intcrest at six percent (6%) pCI' annum from date ofjudgmcnt and all costs of sui I. Respectfully submitted. By 17108-1166 Attorneys 1'01' Camp Hill Shopping Ccntcr Associates Dated July 23, 1998 ~~~- ~ f:::J ~~ ~ ~ ~ ~ (' -t\ "- -<:: '-l:I ~ , ~ ~ '-.. ~ Q" ()I ~ J ~ '="r"J -'t ~ (') <tl ~ C co -~ "' r= -l uCJ -f~ rnlYJ , i'ol;::!J z- ' r- _..I.' N .,~ tfl on ) ~"" -' ;:~ " , _ ..r-, r~C:.:; "j , ~() -0 ~)~:d ::J: ._-~ 20 .", ...;;; - ~ ...- c: .. -~ ~ -~ N =< .. 0 '" 9n C- eo "'" '-- ::1 ~. -0 'CO c:: ""::0 men .. r.~1Ti /.__0 N :::c;:;.. t3~ (n..~... ...J ~G --0 ~-ri ..--1\ ~(') ::;: QB ~.rn ~.-;:CI c- ~ J" c:: .. ~ N 3i .1'"" -~ .... CAMP HILL SHOPPING CENTER ASSOCIATES. IN TilE COURT OF COMMON PLEAS CUMI3ERLAND COUNTY, PENNSYLVANIA Plaintiff NO, t;S~ in)? ~L~ f I CIVIL ACTION. LA W v, JOI'IN LEE D/B/A TOKYO Defendant COMPLAINT FOR CONFESSION OF .JUDGME~I AND NOW, comes Plaintiff, Camp Hill Shopping Center Associates, by and through its counsel, the law linn of McNees, Wallace & Nurick, and files this Complaint pursuant to Pa, R. Civ, 1'. No, 2951 (b) for judgment by confession and avers as follows: I. Plaintin~ Camp Hill Shopping Center Associates ("Plaintiff'), is a Pennsylvania corporation with its principal place of business located at Camp Hill Shopping Mall, South 32nd Street and Trindle Road, Camp I-Iill, Cumberland County, Pennsylvania 17011. 2. Defendant, John Lee d/b/a Tokyo ("Defendant"), is an adult individual with a last known address 01'20 Water Street, Dillsburg, York County, Pennsylvania 17019, 3, On or about November II, 1996, Defendant entered into a Lease Agreement with Plaintiff ("Lease") for its business known as Tokyo at the Camp Hill Shopping Center located at 3400 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011, Attached hereto as Exhibit "AU is a true and correct copy of the original Lease, 4, D~fendant authorized Plaintiff to enterjudgmcnt by confession against it for recovery of rcnt or other charges under the Lease as more specifically set forth in Article XVI, Section 02(b), (page 24 of the Lease), 5. Thc Lease was duly executed by Defendant, who agreed to be legally bound by the terms of said Lease. VERIFICATION The undersigned, Kravco Company, Agent for Camp Hill Shopping Center Associates, verifies that the statements made in the foregoing Complaint for Confession of Judgmcnt arc true and correct to the best of the undersigned's knowledge, information and belief, The undersigned understands that false statements herein arc made subject to the penalties of 18 Pa, C.S,A. Section 4904, relating to unsworn falsification to authorities. KRA vca CaMP ANY BY: KRA vca, INC. BY: <- ;2Ct{fC( y ~,/t(-9cd- Debra L. Lambert Vice President Dated: 4f~().:;-1 i E;\legoI\Slephen SUSlmanlverdicalion camp hlllssussman Ie 0402ge,B.doc ..1.', ') '~ , 1:, :,..,v,.., :'I':f I ,,~J :{ "'r'; :!'{;:\ ,I"';,',: Ii '. Ii"' II;:' "I::;:' k}~. l- ,,:~~ l'<;; ',<~ LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS Sactlon 1.01: REFERENCES ANO CONFLICTS, References appearing in the Fundamental Lease Provisions afC to designate some of the other places In this Lease where additional provisions applicable to the particular Fundamental Lease ProvIsions appear. Each reference in this Lease to any of the Fundamental Lease Provisions shall be construed to Incorporate all of the terms provided for under such provisions, and such provision shall be read in conjunction with all other provisions of this lease applicable therelo. If there is any connic! between any of the Fundamental Lease Provisions and any other provisions or this lease. the latter shall control. The listing on the Fundamenlallease ProviSIons of monetary charges payable by Tenant shall not be construed to be an exhaustive list of all charges or the amount thereof payabre by Tenanl under this Lease. Secllon 1,02: GENERAL OEFINITIONS, <a) The term "Shopping Cente," means the land shown on Exhibit "A" altached hereto and by Ihis reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time. (b) The term "Mall Premises" means the Shopping Center excluding however the Majors' Premises and the term "Mall Premises" includes the same as reduced, expanded or otherNise altered from time to lime. (c) The term "Landlord's Building" means the buildings, structures and other improvements shown in general on ExhIbit "A" and includes the "Enclosed Mall" (hereinafter defined), but excludes the Majors' Premises (hereinafter defined). Landlord's Building is part of Ihe Mall Premises. The term "Landlord's Building" includes the same as reduced, expanded or otherNlSe altered from time to time. (d) The term "Majors' Premises" (or "Majors Premises") means Ihe premises shown on Exhlbil"A" by such lerm, or by the word "Major" or name of the prospective or actual principal Occupant thereof (the "Majors" or a "Major"), and the term "Majors' Premises" (or "Major's Premises") includes the same as reduced, expanded or otherwise altered from time to lime. The term "Major" (or "Majors") includes any replacement for or other substitute of the primary occupanl of a Major's Premises as well as, in the case of an expansion on or of the Shopping Cenler, the primary occupant of the premises equal 10 or exceeding, In lerms or GLA, Ihe GLA or anyone (1) or Ihe Majors' Premises shown on Exhibit "A" hereof (even though those premises may not be originally shown thereon). References in this Lease to a Major or Majors shall include any such replacemenl, substllute or addillonal Major and lis premises are Included within the lerms "Majors' Premisas" and "Major's Premises". (e) The term "Common Areas" means all areas, facilities and improvements operated or provided at or in connection wilh Ihe Shopping Center from lime 10 time for the non-exclusive Common use of Landlord, the lenants of the Mall Premises and the Majors, and shall include but not be limited to the "Enclosed Mall" (hereinafter defined), parking areas, roadways, ramps, traffic controls, truck ways, loading and unloading docks, delivery areas, sidewalks, stairNays, escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer areas, screening facilities, merchandise pickup stations (excluding those of Majors, if any), public rest rooms and comfort stations, retaining walls, landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage systems, and lighting systems. The term "Common Areas" includes the same as reduced, expanded or otherwise altered from time to lime, I 'I':' I I ! ~:", I "' II : ~ \ :.". \h, ..K I' ,\''', 0: "I " il"'''',,''l : i ,"i/:': :!(., (f) The term "Enclosed Mall" means the enclosed climate 'controlled pedestrian mall located in Landlord's Building, and the term "Enclosed Mall" includes the same as reduced, expanded or otherNise allered from time to time. (g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which space is in the approximate location marked on Exhibit "A" to the ceiling height above the structural floor set forth in Landlord's "Store Design Criteria" (defined in Section 2,03(b) heraory, (h) The term "Fast Food Cluster" means the area or areas now or in the future specifically designated by Landlord for small restaurant or olher food service opera lions silualed In Landiord's Building or elsewhere In Ihe Mall Premises, including the individual premises and any sealing areas localed therein and the malnlenance and housekeoping areas prlr.1arlly serving the Fast Food Cluster. The term "Fa'st Food Cluster" includes lhe same as reduced, expanded or otherwise altered from time to time (i) The term "GLA" means wilh respect to Ihe Premises and all other leasable areas, Landlord's beSl estimale olthe number 01 square feel of area on all Ooors in Landlord's Building for Ihe exclusive use by Ihe tenanls or olher Occupanls thereof and their customers, clients or other invitees including without limitation mezzanines and balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of Common Areas). GLA shall be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of the Premises where the Premises abuts lhe Enclosed Man as shown on Exhibit A (WhiCh line is cOmmonly known as the "Lease Line"), or the Lease Line of any pop-outs referred to in Section 1,04, as the case may be, and the center line of any wall Tenant shares with other lenanls or occupanls of the Landlord's Building, No deduction from GlA shall be made for columns, stairs, elevalors, or any interior construction 'or equipment. From time to lime during the Term, Landlord may give Tenant notice of Ihe GLA of Landlord's Building, at a given time for a given period 01 lime, as such GLA may be revised because of reductions, expansions or other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions in the leases of other tenants or occupants similar to Ihose set forth In Section 1,04, The GLA of the Premises and of Landlord's Building shall be ullllzed 10 calculale the GLA Fraction (defined in Section 1.02Q) and 10 make any olher calculallons required to determine the charges to Tenant. '"' (j) The term "GLA Fraction" means a IraClron, Ihe numeralor of whICh shall be the GLA 01 Ihe Premises and the denominator of which shall be the GlA of Landlord's Budding, subject, however. 10 the provIsions of SectIon 4,08. (k) Tho term "Junior MaJor(s)" moans an occupant, (nol heroin identified as or otherwIse hereunder constituting a "Malar") wh,ch owns, occupies or leases (,) any bu,'d,ng or ground not connecled to Landlord's BUilding (e g , a so called "out parcel") or (II) In excess 01 15,000 square feet of GLA ,n Ihe Shopping Cenler and Ihe lerm "Junior MaJor(s') PremISes" means the promIses in the Shopping Center owned. occuplOd or leased by a Junior Major. (I) The term "Leaso" as used in this document (lhe "Loase") shall mean the Fundamenlallease Provisions, the Lease Agreement. the Exhibits aUached hereto and Addendum, I' any < Section 1,03: EXHIBITS, The following plans and special provisions afC attached herelo as ExhIbits. are incorporated herOin and hereby made a part 01 IhlS Lease, EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of the Premises. EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G Oeleted Completion CertIficate. EleclrlCl1y Schedule (See Section 6.02), Conditioned Air Charge Rate Adjuslment Schedule Fast Food Clusler (See Secllon 6,02) Menu Section 1,04: GLA OF PREMISES The GLA 01 the Premises may be recalculaled by Landlord during Ihe Term, In the event the recalculaled GLA 01 Ihe Premises differs from the GLA set forth in the Fundamental Lease Provisions and Landlord or Agent so notifies Tenant, from and a~er the date of such notice the GLA of the Premises shalf be deemed amended to correspond to the recalculated GLA and the Minimum Rent and Gross Sales Break Point and Partial Vear Break Point shall be deemed to be those amounts which bear the same relationship to the Minimum Rent. Gross Sales Break Point and Partial Year Break Poir.t stated in this Lease or determined by the provisions thereof, as the actual recalculated GLA of the Premises bears to the GLA set forth on the Fundamental Lease Provisions. For the purposes of this Lease, the Gross Sales Break Faint and Partial Vear Break Point are collectively referred to as the "Breal< Poinr. Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop-out" all or a portion of the storefront. Should Tenant install a pop-out storefront, the GLA of the Premises shall be increased to include the square foot area of the pop-out(s). The Minimum Rent and the Break Point shall be adjusted in accordance with the formula set forth in this Section, to include the area of such pop-out(s). Section 1,05: CHANGES TO SHOPPING CENTER. As betvleen Landlord and Tenant. Landlord may at any time and from lime to time eliminate land from, or add to or substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any improvements, or change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or any part thereof,including, without limitation adding additional levels to any existing buildings therein. Section 1,06: CROSS EASEMENT AGREEMENT, Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this Lease, the Shopping Center including, without limitation, the Common Areas and the Premises are and shall be subject, subordinate and othef'.'Iisc junior to any cross easement agreement (as they may be or may have been created, amended, supplemented or otherwise modified from time to lime) betv/een Landlord and each of the Majors or Junior Majors who are parties therelo (such cross easement agreement being herein collectively called the "REA"). ARTICLE 2: PREMISES AND TENANT'S WORK Section 2,01: LEASE OF PREMISES, Landlord, in consideration of the "Renr' (defined in Section 4.01) tobe paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein as the Premises situated or to be situated in Landlord's Building, as the case may be. Section 2,02: SECURITY OEPOSIT, The sum referred to as the security deposit in the Fundamental Lease Provisions is herein called the "Security Deposlf', The Securily Deposit will be held by Landlord, without Interest accruing In favor of Tenant, as securlly for Tenanl's faithful performance of all of the terms and conditions of this Lease for and during the Term. Provided Tenant is not in default under this. Lease, landlord shall return the Security Deposit to Tenant at the expiration of the Term. In no instance shall the amounl of Ihe Secunty Deposit be conSidered a measure of liquidated or other damages. All or any part of the Security DepoSIt may be applied by Landlord in lolal or pM,., cure by Landlord 0' any breach or Olher de'aull 0' Tenant The appllcahon 0' all or any part ollhe Securily Depos,' 10 any obllgalion or de'ault 0' Tenanl under Ihls Lease shall nol deprive Landlord 0' any olher rights or remedies Landlord may have nor shall such appllcahon by Landlord consl,tule a waiver or assumpllon by Landlord. If all or any part 0' Ihe Security DepoSll,s appl,ed by Landlord 10 an obl'gal,on or de'aull 0' Tenanl hereunder, Landlord shall have the rlghllo call upon Tenanllo reslore the Security Oepos,' to .ts original amounl by g"lng nollce 10 Tenant and Tenanl shall immediately reslore Ihe Security Oeoos,'IO .15 orlg'nal amounl by paymenllhereo' to Landlord, Tenanl shall nol have Ihe right '0 call upon Landlord 10 apply all or any part 0' Ihe Security Depos,"o cure any breach or olher delaull or 10 fulfill any obligalion of Tenant but such use shall bo sc~ely In the discretIon of Landlord It IS dlslinctly understood and agreed Ihal should Landlord Irans'er its interest In this Lease, the Security Deposll may be lumed over by Landlord 10 Landlord's grantee or olher transferee, and upon any suCh lurnolier of the Secunt, DepOSit Tenanl heleby releases Landlord herem named of any and allliabihly or olner obligalton wIth respect to the Secuflty Deposl!, its applicatIon and return, and Tenant agrees to look solely to suCh grantee or other transferee It IS further understood and agreed that these provisions shall also apply 10 subsequenl granlees and olher trans'erees The Secu"ly Deposll shall be deemed Ihe sole property 0' Landlord, Section 2,03: PREPARATION OF PLANS ANO TENANT'S WORK. (a) Tenant has had the opportumty to examine the Premises and hereby agrees to accept same in the "as is" condition in which the Premises exist on the dale Landlord turns Over the key to the Premises to Tenant or Tenant's designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future condition of the Premises, the presence or absence of hazardous materrals (hereInafter defined) and chlorofluorocarbons therein or what items, if any, the present occupant of the Premises is reqUired to or may leave therein. Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord be liable in the avent the existing occupant of the Premises fails to timely vacate the same, except that any delay in occupancy shall extend the Required Opening Date specified herein for a period equaf to the number of days between the ConstructIon Commencement Date specified herein and the date such former tenant vacates; provided that if physical possessIon of the Premises is not available by a date which is one year from the Construction Commencement Date, at Landlord's option, this Lease shall be null and void and neIther party shall have any liability hereunder to the other. (b) Tenant shall perform all work required to be performed by Tenant to tully and completely remodel the Premises and 10 adapt the same for Tenant's use. as such use is specified and limlled by the Fundamental Lease Provisions, all such work being referred to herein as 'Tenant's Work", Tenant shall design the Premises in accordance with Landlord's current Slore and storefront design criteria booklet and othet'Nise comply with all requirements therein (herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received, Tenant shall instruct its architect or designer to prepare Tenant's plans for the Premises in compliance with Ihe Americans with Disabilities Act. the Clean Air Act and all other applicable laws, rules, codes, and regulations. In the evenl of any inconsistences between the text of this Lease and the Store Design Criteria, the laUer shall prevail. Entry by Tenant to the Premises prior to the Rent Commencement Dale shall be subject to all of Ihe provisions of this Lease. except the duty to pay Rent but Tenant shall pay for all utilities and services supplied to it dunng such period. Tenant agrees to perform Tenant's Work in such manner so as not to cause any interference with the use. occupancy or enjoyment of Ihe remainder of the Shopping Center, or any part thereof. Tenant shall promptly cause to be repaired all items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of such damage and shall al all limes keep all portions of the Shopping Center (other than the Premises) free from and unobstructed by debris, equipment or materials related to Tenant's Work. (c) On or before the Design Drawing Submission Date. Tenant shall submit to Landlord's tenant coordinator (herein called Ihe "Tenant Coordinator') 'or Ihe Landlord's approval design drawings (herein called Ihe "Oeslgn Drawings") specifying each aspect of Tenant's Work and specifically including a colored rendering of the proposed storefront and signing, sample materials 10 be used in the Premises and sign. photograph of fixtures 10 be used and the inlerior layout of the Premises. The Design Drawings shall be prepared in accordance with the Store Design Criteria. After receipt of the Design Drawings, Landlord shall return to the Tenant the Design Drawings. either "approved", "approved as noted" or "disapproved"; if they are marked "disapproved", Landlord shall also nole Ihe reasons 0' such disapproval. On or before Ihlrty (30) days after recelpl of the "disapproved" Design Drawings, Tenant shall resubmit to the Tenant Coordinator revised Design Drawings meeting Landlord's objections. Landlord shall thereafter return the same to Tenan!, marked as set forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been "approved as noted" or "approved". On or be'ore Ihirty (30) days after recelpl of "approved as noled" or "approved" Design Orawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working drawings and specifications (herein called "Final Plans") for architectural, electrical, mechanical. sprinkler and plumbing work within the Premises and all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the Store Design Criteria. The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as noted" or "approved" by Landlord, The Final Plans shall incorporate any revisions required by Landlord to the Design Drawings, including those forming the basis of Landlord's approving the same "as noted", After receipt of the Final Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved". If they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, or before ten (10) days after receipt of such "disapproved" Final Plans, correct any dc'liciencies slated by Landlord and resubmit within ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or "approved", If Landlord accepts Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator, but Tenant shall revise such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant Work in the Premises shall be constructed in such fashion as to comply with the notes disclosed on such "approved as noled" Final Plans, If Tenant does not correct such deficiency and resubmit any disapproved Final Plans within the required time period, such failure shall constitute an Event of Default. Tenant's Work shall be performed only in accordance with the Final Plans, as marked "approved as noted" or "approved" by Landlord. Tenant's failure to submit its Design Drawings on or before the Design Drawings Submission Date or Tenant's failure 10 commepce Tenant's Work on or before the Construction Commencement Dale shall be an Event of Default pursuant to Section 16.01 unless such failure results from Landlord's inability to deliver possession of the Premises to Tenant on the Construction Commencement Date. (d) Together with Tenant's submission of its Design Drawings and together with any other plans submitted by Tenant relating to any other work in the Premises which Tenant desires or is required to perform, Tenant shall pay Agent on 5 each occaSion the sum 01 One Thousand and 00/100 Oollars IS1,OOO 00) to defray Ihe cost of rev'ew'"g Tenanl's Oes'gn Drawings and Final Plans (ej On or before the Construchon Commencement Oate, Tenant shall depos't w'th Landlord cert,ficates of insurance as required in Article 11 and a true copy of Tenant's building permit and shall commence Tenant's Work and prosecute It dIligently and continuously to completlon meludlng Installalron of fixtures and equipment in the Premises. Prior 10 the commencement of any Tenant Work or the delivery of any matenal to the Premises by any contractor, subcontractor or matenalman (herein called "Contractor'). Tenant shall deliver to the Tenanl Coordinator a Signed, acknowledged and sealed waiver of liens (herein called "Contractor's Waiver 0' Liens") from each Contractor in the form speCified by Landlord. The ConlractlJr's Waiver of Liens provides, among other things, that the Contractor waives any and all lien fights thai it may have against landlord's estate, right, tItle and interest in the Shopping Center and any part thereof including, Without limitation, landlord's Building and Ihe Mall Premises. Within thirty (30) days atter Tenant's opening the Premises for business, Tenant shall deliver to landlord an executed Completion CerMlcale in the form attached hereto as Exhibit "Coo. m Landlord shall have the righlto post and keep posted in Ihe Premises notices 01 non.responsibility, or such other notices as Landlord may deem 10 be proper for the protection 01 the Landlord or Landlord's estate, right, tille and interest in the Shopping Center and any part thereof.. Tenanl shall before the commencement of any work which might resull in any claim, lien or other charge give to the Landlord wfltlen notice cf Its intention to commence said work in sufficient time to enable landlord to post, fite and record such nolices. The provisions of this Section 2.03 shall apply With respect to Tenant's Work or any other work performed in or about the Premises at any time during Ihe Term hereof. Section 2,04: OPENING OF PREMISES, (a) Tenant agrees to open its business to the public in the Premises no later than the Required Opening Date specified in the Fundamental lease Provisions. (b) Tenant shall complete, or cause to be completed, Tenant's Work and the installation of fixtures, equipment and merchandise no later than the Required Opening Date. If Tenant fails to open ils business to the public in the Premises on or before the Required Opening Date, Tenant shall pay to landlord, in addition to Minimum Rent and Additional Rent, an amount equal 10 one percent (1 %) of the annual Minimum Rent for each day Tenant's bUSiness remains not open in the Premises from and after the Required Opening Date (counting the said Required Opening Date as the first such day.) Any and all sums and other charges payable by Tenant to landlord pursuant to the immediately preceding sentence shall be paid on demand 10 offset administrative costs and expenses incurred by landlord as a result of Tenant's late opening and shall In no way abrogate, or relieve Tenant from any of Tenant's obligations under this lease. including without limitation the obligation to open its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at law and in equity, arising from Tenant's failure to open pursuant to this Section 2.04(b). Section 2,05: MECHANIC'S LIENS, (a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge arising out of any work done or materials or SUppi,.S furnished by any contractor, subcontractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien or encumbrance or other charge (collectively a "Charge") against or upon the Shopping Center or any part thereof, including without limitation the Mall Premises and Landlord's ~uilding or the income therefrom. Tenant will not suNer any other matter or thing whereby the estate, right, litle and interest of landlord in the Shopping Center or any part thereof including without limitation the Mall Premises and landlord's Building might be impaired, If any claim or lien or notice of claim or lien on account of an alleged debt of Tenant or any notice of contract or Charge by a person engaged by Tenant or Tenant's contractor to work on the Premises shall be filed against or upon the Shopping Center or any part thereof including without limitation, the landlord's Building or the Mall Premises, Tenant shall within twenty (20) days after demand from Landlord, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant shall fail to cause such claim or lien or notice of claim or lien or other Charge 10 be discharged within the period aforesaid, then, in addition to any other rlghl or remedy It may have, Landlord may, but shall not be obligated to, discharge the same by payment, deposil or by bonding proceedings, and in any such event landlord shall be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure of the same by the claimant and to pay the amount of any judgment in favor of the claimant with interest, costs and allowances. Any amount so paid by landlord and alf interest, costs and expenses, including attorneys' fees, incurred by landlord in connection therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to landlord on demand, Nothing herein contained shall obligate Tenant to payor discharge any charge created by Landlord, (b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work by Ten~nt or Tenant's contractor in or about the Premises. No work which landlord permits Tenant to do shall be deemed to be for the immediate use and benefit of landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against the estate, right, title or interest of Landlord by reason of any consent given by landlord to Tenant to dO work in or about the Premises or provide materials therefor. Nothing contained herein shall imply any consent or agreement on the part of landlord to subject landlord's estate to liability under any mechanics' or other lien law. ARTICLE 3: TERM Section 3,01: TERM OF THIS LEASE, The term of this lease (sometimes herein called the "Term") means the period of the "Interim Term" (hereafter defined) followed immediately by the periOd of the "Rent Term" (hereinafter defined), The "Interim Term" means the period commencing on the date of this Lease and ending on the date Immediately preceding the Rent Commencement Date. The "Rent Term" means the period commencing on the Rent COlllmencement Date and ending on the Expiration Date, as extended pursuant to Section 21,02 here.of or by agreement executed by landlord and Tenant or sooner terminated as 6 provided herein, as lho case may be Soctlon 3,02: YEARS The term "Yoar" means each successIve twel....e (12) month penod ftom January 1 through December 31 occurrmg dunng Ihe Term, plus, if appl'cablo any Partial Year, "Partial Year" means Ihe penod between and including Ihe Renl Commencemenl Dale, ,f Ihal dale is nol Janu",,, \, and Ihe nexlsucceedlng Oecember 31 and, ,f applicable, If Ihe Term ends on Olher Ihan a December 31, Ihe penod beg'nnmg on Ihe lasl January 1 of Ihe Term and ending on Ihe lasl day of Ihe Term ARTICLE 4: RENT Soctlon 4,01: TENANT'S AGREEMENT TO PAY RENT. Tenant hereby agrees to pay for the right of use and occupancy of the Premises during the Term, at the times and in the manner herein provided, the Mmimum Renl. Percentage Renl and Additional Rent. As used in this lease, the term "Rent" means, collective lV, the Minimum Renl, Percentage Renl and AddItional Rent Soctlon 4,02: RENT COMMENCEMENT OA TE. As used in this lease, the term "Rent Commencement Date" shall mean the earlier at: (a) Oalo"), or (b) tho dale on which Tenant initially opens its business to the public in the Premises (the "Actual Opening the calendar date set forth as the ReqUIred Opening Date in the Fundamental lease Provisions Soctlon 4,03: MINIMUM RENT, (a) The base rent Tenant shall pay landlord for each Year shall be the amount set forth in the Fundamental lease PrOVISions as the Minimum Rent per Year and shall be payable in twelve (12) equal monthly installments, in advance, on the firsl day of each calendar month. (b) The base rent Tenant shall pay landlord for any Partial Year shall be that amount set forth in the FundClmenlal Lease Provisions as the Minimum Rent per Year limes the Partial Year Fraction. As used in this Lease, "Partial Year Fraction" means a fraction, the numerator of which is the number of days in the applicable Partial Year, and the denominator of which Islhree hundred sixty.five (365), The base renl payable for a Partial Year shall be paid in equal monlhly Inslallmenls, in advance, on the first day of each calendar month, except that if the Rent Commencement Date is not the first day of a calendar month, then that portion of such base rent which is allributable to the days in that first partial calendar month shall be paid, in advance, on the Rent Commencemenl Dale. (c) The base rent payable by Tenanl pursuanllo Secllon 4,03(a) or (b), whichever is applicable, Is called Ihe "Minimum Rent" in this Lease, Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a partial monlh shall be disregarded, (d) If, at any time during the Term the Shopping Center shall be expanded by the addition of one or more Majors' Premises or the Shopping Center is expanded by more than 50,000 square feet of GLA, Tenant agrees that the Minimum Rent provided in the Fundamental Lease Provisions shall be increased by fifteen percent (15%) upon the date each such additional Majors' Premises first opens for business or the opening of the expanded Shopping Center, Landlord agrees that the Break Point shall be likewise increased by fifteen percent (15%). Secllon 4,04: PERCENTAGE RENT, (a) In addition to Minimum Rent, Tenant shall pay Landlord percentage rent (herein called "Percentage Rent") as determined bV this Article 4, The Percentage Rent for each Year shall be an amount equal 10 the "Percentage" (which is set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross Sales made during such Year In excess of the applicable Break Point set forth in the Fundamental Lease Provisions, The Percentage Rent for each Partial Year shall be an amounl equalta the Percentage multiplied bV the amount of Gross Sales made during such Partial Year in excess of the Partial Year Break Point. The term "PartIal Yoar Break PoInt" shall mean an amount equal 10 the Break Point multiplied by Ihe Parllal Year Fraclion for Ihe applicable Partial Year, (b) In each Year or Partial Year, Tenanlshall be obligaled 10 pay Percenlage Renl beginning wllh Ihe firsl month in which the aggregate amount of Gross Sales made tor such Year or Partial Year exceeds the Break Point. Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every succeeding month during the remainder of SuCh Year or Partial Year on all additional Gross Sales, Each paymenl of Percenlage Rent shall be paid by Tenant 10 Landlord wilhout demand and olherwlse as sel forth in Ihis Article 4 logelher wilh Tenant's monlhly slatement of Gross Sales provided. for in Section 4.06, subject to the annual adjustment provided for in such Section 4,06, (c) In Ihe evenl any Break Polnl is subjecllo adjuslmenl during Ihe lerm of Ihis Lease, and Ihe dale on which any such adjuslmenl isla occur (hereafter referred 10 as the "Ronlal Adjuslmenl Oalo") is olher Ihan Ihe firsl day of a Year, the Break Point for Ihe Year in which Ihe Renlal Adjuslmenl Oale shall fall shall be Ihe sum of: (1) Ihe Inlllal Break Poinl mulllplied by a fraction the numerator of which shall be the number of days in the petiod commencing on the first day of the Year in which Ihe Renlal AdJuslmenl Dale shall fall and ending on Ihe day Immedialely prior 10 the Renlal Adjuslmenl Oate and the denominator of which shall be Ihree hundred sixiy.five (365), plus (2) the latter Break Point multiplied by a fraction, the numeralor of which shall be Ihe number of days in Ihe perled commencing on the Rental Adjuslment Oate and ending on the 7 '.'. .., ......." ''" .- .... .,-'~_..:--...-.... .-,.c~;;';~-;;;':;::;':7.-,~::: .. -"~-'~;""""''''''''~':''~';''?~'t1'"' ..",~.....;--:........,....","!:.~","!!,,"~,: last day 0' tho Year In which the Rental Adjustment Dale shall fall and tho denomma!or of whICh shall be three hundred sixty- five (365) Soctlon 4,05: GROSS SALES (a) The term "Gross Salel" means tho tolal gross receipts and receIvables of all merchandIse, wares and other goods sold or leased and the actual charges for all services performed. business conducted and accommodations rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant In, at. from, or artSing out of the use of the Premises, whether wholesale or retail, whether for cash or credit. or otherwise. and including the value of all consideration other than money received for any of tho foregOing. without reserve or dcducllo" for inability or failure to collecl. including but not limlled to sales, leases and seNlces' (i) where the orders therefor onglnate in. at. from or arlsmg out of the use of the Premises, whether delivery or performance is made from tho Promises or from sarno other place and regardless of the place of bookkeeping for, paymenl of, or collection of any account; or (Ii) made or performed by mall. telephone, or telegraph orders received or filled in, at or from the Premises; or (iil) made or performed by means of telephonic. meChanIcal or other vendmg means or devices in or for the Premises; or (iv) which Tenant, and any subtenant, licensee. concessionaire and other occupant, in the normal and customary course of its business, would or does credit or attflbule to its operations at the Premises or any part thereof. Any depOSit accepled and retained by Tenant shall be included in Gross Sales. Each installment or credit sale shall be treated as a sale for the full price in lhe month durmg which such sale is made. irrespective of whether or when Tenant receives payment therefor. No franchise, value added tax. capilal stock tax, tax based upon assets or nel worth or gross receipt tax, and no income or similar lax based on income or profits shall be deducted from Gross Sales (b) Only Ihe following shall be excluded from Gross Sales (i) any exchange of merchandise bet'-Neen stores of Tenant when such exchange IS made solely for the convenient opera!lon at Tenant's business and is not for the purpose of consummating a sare made in. at or from the Premises; (ii) returns to suppliers, shippers or manufacturers; (iii) cash or credit refunds to customers on transaction otherwise included in Gross Sales; (iv) sales of fixtures, machinery and equipment. which are not stock for sale or trade, after use thereof in the conduct of Tenant's business; (v) amounts separately stated in the sales receipt and collected from customers which are paid by Tenant to any government for any sales or excise tax imposed by law at the point of sale. Section 4,06: REPORTING OF GROSS SALES; VEAR END AOJUSTMENT. (a) Tenant shall furnish 10 Landlord within twenly (20) days after the end of each calendar month during the Term a complete stalement (the "Monthly Report"), certified by Tenant (or a responsible financial officer thereof if Tenant is a corporation), selling forth (i) the amount of Gross Sales during such month. (ii) the aggregate amount of Gross Sales during such Year (or Partial Year, as the case may be). including such month. (iii) the amount. if any, by which such aggregate amount of Gross Sales exceeds the Break Paint, and (iv) the amount of Percentage Rent previously paid by Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shaH be in such form and style and contain such delails and breakdown as Landlord may reasonably require. (b) Tenant w,lI also furnish to Landlord within sixty (60) days after the end of each Year a complete statement (the "Yearly Report") certified by the chief financial officer of Tenant. showing in reasonable detail the amount of Gross Sales during such Year and the amount paid 10 Landlord pursuant to Section 4,04(b) for such Year, The Vearly Report shall be accompanied by the signed opinion of the person certifying the Yearly Report specifically stating that such person has read the definition of "Gross Sales" contained in this Lease, that such person has examined the Yearly Report of Gross Sales of such Year, that such person's examination included such tests of Tenant's books and records as such person considered necessary under the circumstances, and that the Yearly Report accurately represents the Gross Sales of such Year. (c) An adjustment shall be made with the furnishing of each Veariy Report wllh respect 10 Percentage Renl as follows: if Tenant shall have paid 10 landlord an amount greater than Tenant is required to pay as Minimum Rent and Percentage Rent under the terms of Sections 4.03 and 4.04(a}, Tenant shall receive a credit of such excess against payments of Minimum Rent next becoming Jue 10 landlord; or, if Tenant shall have paid an amount less than was required to be so paid, then Tenant shilll forll1with pay such difference. In no event. however, shalllhe sum of Ihe Minimum Rent and Percentage Rent 10 be paid by Tenant and retained by Landlord under Ihe terms of Sections 4,03 and 4,04(a) for any given Vear be less than the Minimum Rent for such Year. (d) The reports required by this Section 4,06 shall be delivered to Landlord al the notices address of Landlord or 10 such other person and/or 10 such other place as may t:;~ designated from time 10 lime by notice from Landlord to Tenant. Section 4,07: TENANT'S RECOROS & AUOITS, (a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or concessionaire shall be maintained in accordance with generally accepted accounting principles. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at the home or regional office of Tenant, full complete and accurate books of account and records in accordance with generally accepted accounting practice with respect to all operations of the business conducted in or from the Premises, including the recording of Gross Sales and the receipt of all merchandise and other goods into and the delivery of all merchandise and other goods from the Premises during the Term, and shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, 8 checks, Inventory records and other documents and papers in any way relating to the operation of such business for at least three (3) years from the end of the period to which they are applicable, or If any audit is required or a controversy should arise bet'Neen the parties hereto regarding the Rent payable hereunder, until such audit or controversy is terminated even though such retention period may be after the expiration of the Term or earlier termination of this Lease. Such books and records shall be open at all reasonable times during the aforesaid relenlion peflod 10 Ihe inspection of Landlord or 'IS duly aulho,ized representatives. who shall have full and free .access to such books and records and the right to require of Tenant. its agents and employees. such information or explanation and audltlhereof and the right to require Tenant to make such books, records and other matenals which Tenant is required to retain available at the Premises for such examination and audit (b) The acceplance by Ihe Landlord of paymenls of Percentage Renl shall be wilhout prejudice to Ihe Landlord's examination and audit rights hereunder. Landlord may at any reasonable time, upon ten (10) days' prior written notice to Tenant. cause a complete audit to be made of Tenant's entire books. records and other materials which Tenant is required to retain (including the books and records of any subtenant. licensee, concessionaire and other occupant) for all or any part of the three (3) year period Immedlalely preceding the day of Ihe giving of such notice by Landlord to Tenanl II such audil shall reveal a deficiency in any payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount of the deficiency. (c) II such audit shall disclose that (i) any of the Yearly Reports underslale Gross Sales dUllng the reporting period of the report to the extent of two percent (2%) or more; or (Ii) Tenant has nol recorded Gross Sales, or kept books of account and records, as and for the period required by this Section 4,07; or (iii) if Tenant shall be delinquent in delivering 10 Landlord the Yearly Report or Monthly Reports lor two (2) consecutive months, or more than twice in any Year or Panlal Year, then such understatement. failure or delinquency shall be an Event of Default. In addition, in the event of such understatement or failure, Landlo,d shall have the right to bill to Tenanl the amount of any deficiency In Percenlage Rent and the reasonable cost of said audit which shall be paid by Tenant within ten (10) days after demand which deficiency w,lI bear interest at the "Defaull Rate" (defined in Secllon 16,03 hereoD from and after the dale it should have been paid until paid. (dJ In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such violation, landlord, or its duly authorized representatives, is unable to conduct a proper examination and/or audit. the parties agree that landlord shall have been deprived of an important right under this lease and, as a result thereof. will suffer damages in an amount which is not readily ascertainable and thus, in such event. landlord, in addition to and not in lieu of any other remedies which landlord has under this Lease, at law or in equity, shall have the right, at its option. to collect. as liquidated damages and not as a penally, an amount equal to twenty percent (20%) of the greater of Ii) Percentage Rent reponed for the period or periods in question, or (ii) the annual Minimum Rent payable for the period or periods in question. Tenant agrees to pay such liquidated damages, Section 4,08: ADOITIONAL RENT, In addition to Minimum Rent and Percentage Rent. Tenant shall pay, as additional rent (herein sometimes collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent". The terms "Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined In Articles 5 and 8, respectively, In computing the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar basis as the Tax Charge or the CAM Charge (collectively "Other Like Charges"), the net payments by Majors and Junior Majors 10 Landlord loward the Taxes, the CAM Sum or the sums on which Other Like Charges are based (collecllvely the "OLC Sums") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC Sum before apportionment and determination of the Tax Charge, CAM Charge or Olher Like Charge to be paid by Tenant and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the GLA Fraction shall not include the GLA of the Majors' Premises and the Junior Majors' Premises. Section 4,09: WHERE RENT PAYABLE ANO TO WHOM: NO OEOUCTIONS, Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent. or Additional Rent) shall be paid when due without prior demand therefor (unless such prior demand is expressly provided for in this Lease), shall be payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this lease) and shall be paid by Tenant to Landlord at the payment address of landlord set forth in the Fundamental Lease Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to Tenant. At the end of the Term, provided Tenant is not in default, landlord shall refund to Tenant any amount of excess Rent paid to Landlord and any other amounts due from Landlord to Tenant. Any Rent, or installment thereof, which is not paid by Tenant to landlord within seven (7) calendar days after it is due shall bear interest at the Default Rate, In the event any installment of Minimum Rent or other sum under this Lease shall not be paid when due, a "Late Charge" of five cents (S.05) per each dollar so overdue may be charged by Landlord, as Additional Rent. for the purpose of defraying landlord's administrative expenses incident to the handling of such overdue payments. ARTICLE 5: TAXES AND ASSESSMENTS Section 5,01: TENANT'S TAX CHARGE, Tenant shall pay 10 Landlord in each calendar year, as Additional Rent. Tenant's share of all real estate and other ad valorem taxes and other assessments, impositions, excises and other governmental or quasi-governmental charges of every kind and nature (including, b.ut not limited to. general and sp~cial assessments, sewer and fire district assessments, foreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and all improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease. Tenant's share of the Taxes in each calendar year (the "Tax Charge") shall be an amount equal to the product obtained by multiplying the Taxes applicable to such calendar year by the GLA Fraction (with dally proration for any Partial Year). "Taxes" shall also include landlord's reasonable costs and expenses (including statutory interest, if any) in obtaining or attempting to obtain any refund, reduction or deferral of Taxes. 9 Section 5,02: PAYMENT BY TENANT. (a) Payment of the Tax Charge required under thIS Article 5 shall be pa'd by Tenant,n equal monlhly 'nstallmenls In advance In such amounts as are estimated and billed by Landlord based upon the lotal Taxes payable in each calendar year. Landlord may revISe ,Is esllmale and may adjust such monthly payment atlhe end 0' any calendar month, The first such 'nstallment shall be due and payable by Tenant on the Rent Commencement Oale (proraled 'or Ihe remalnmg number 0' days In the calendar year) and subsequent installments shalllhereafter be due and payable at the beg'nmng 0' each ensuing calendar month during the Term. In addition to the payments prOVided for in the Immediately proceding sentence. if, ptlor 10 the Rent Commencement Oale, Landlord shall have prepaid all or a portion of Ihe Taxes applicabie to the Term, the Tax Charge shall include and Tenant shall reimburse to Landlord the Tenant's share at such Taxes (calculated in accordance with the prOVISions of Secllon 5,01), on or before the Rent Commencemenl Dale, Landlord shall send to Tenant an Invoice seiling forth Tenant's share 0' such Taxes, together with copies 0' receipled bills evidencing Landlord's payment of such Taxes, (b) After Landlord has received the Tax bills for each calendar year, Landlord will nollly Tenant of (i) Ihe amount 0' Taxes on which the Tax Charge is based, (Ii) the amounl 0' any refund, reducllon or de'erral expenses, (iii) the total GLA of the Premises and Landlord's Buitding on which the Tax Charge Is based and (iv) the amount of the Tax Charge, If the aforesaid monthly payments on account of the Tax Charg~ for a given calendar year are greater than Tenant's share of the Taxes payable for a given calendar year, Tenant shall receIVe a credit from tandford for lne excess against installments of the Tax Charge next becoming due to Landlord, and If said paymenls are less than Tenant's share, Tenant shall forthwith pay Landlord the difference, Section 5,03: TENANT'S AOOITIONAL TAX OBLIGATIONS, (a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other charges levied, assessed or imposed by governmental or quasi-governmental authority upon Tenant or its business operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold interest, trade fixlures, furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to Tenant's Work) alterations. changes and additions made by Tenant. merchandise and personal property of any kind owned, installed or used by Tenant in, from or upon the Premises, If the property of Landlord is included in any of the foregoing items, the aforesaid taxes, assessments, impositions, excises, fees and other charges shall nonetheless be paid by Tenant as herein provided. Tenant shall pay, when due and payable, any sales lax, or other lax, assessment. imposition, excise or other charge now or herea~er levied, assessed or imposed upon or against this Lease or any Rent or other sums paid or 10 be paid hereunder, or Tenant's, Landlord's or Agent's interest in this Lease or any Rent or other sums paid or to be paid hereunder. Should lhe appropriate taxing authority req~ire that any tax, assessment, imposition, excise or other charge referred to in this Section 5.03(a) be collected by Landlord or Agent for or on behalf of such taxing authority, then such tax, assessment, imposition, excise or other charge shall be paid by Tenant to Landlord or to Agent monthly as Additional Rent in accordance with the terms of any notice from Landlord or Agent to Tenant to such effect. The taxes, assessments, impositions, excises, fees and other charges described in this Section 5.03(a) shall be the obligation of Tenant and not Landlord or Agent. If any lax, assessment. imposition, excise, fee or other charge covered by this Section 5.03{a) is imposed on Landlord or Agent, Tenant shall pay the same 10 Landlord within thirty (30) days after receipt of each billlherefor, (b) Nothing herein contained shall be construed to include in Taxes any inheritance, estate, succession, transfer, gift, franchise, corporation, net income or profit tax or capital levy that is or may be imposed upon Landlord; provided, however, that, if at any time during the Term the methods of taxation prevailing at the commencement of the Term shall be altered so that in lieu of or as a supplement to the whole or any part of the taxes now levied, assessed or imposed on real estate as such there shall be levied, assessed or imposed (i) a tax on the rents received from such real estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof, or (iii) a tax or license fee imposed upon Landlord which is otherwise measured by or based in whole or in part upon the Shopping Cenler or any portion thereof, then the same shall be included in the computation of "real estate taxes" hereunder, compuled as if the amount of such tax or fee so payable were that due if the Shopping Center were Ihe only property of Landlord subject thereto, If any gross receipts tax shall be payable by Landlord, Tenant shall pay Ihe portion thereof attributable to Landlord's receipts from Ihls Lease, ARTICLE 6: SERVICES Section 6,01: SERVICES, (a) Tenant agrees 10 connect to and use the utilities, facilities and/or services (including electricity, sanitary sewer, water, chilled water, gas, telephone and any other utility faCility and/or service) supplied to or for the Premises by Landlord or the applicable utility company, municipality andlor other governmental body or authority supplying the utility seNice and to pay Landlord or the applicable utility company or other supplier thereof for such utilities. Landlord shall incur no liability to Tenant, nor shall this Lease be affected, in the event that,any utility, facility and/or service becomes unavailable from any source of supply or for any reason not within Landlord's control. (b) In the event the Premises do not presently contain an electric or other utility meter, at Landlord's request Tenant shall, within forty five (45) days after receipt of such request, at its sole cost and expense, install a meter of a type approved in advance by Landlord. Section 6,02: SERVtCE CHARGES, (a) In the event any utilities used in the Premises are supplied by Landlord, Tenant agrees to pay the charges for such use, as Additional Rent, in advance, on the first day of each month during the Term (prorated for any fractional month). Such charges are collectively called the "Services Charges". The present amount or method of calculation of the Services Charges is set forth on Exhibit "0", Exhibit "E" and Section 6,05, Landlord shall Invoice Tenant for the amount of the monthly Services Charges for the Premises, IfTenanl falls 10 make any such payment to Landlord within ten (10) days from the date such payment is due, or upon failure of Tenant to pay any other sums of Minimum Rent, Percentage Rent, Additional Rent, 10 ! i i " I I I I i or olher Renl or charges due under Ihe provisions 01 IhlS Lease in lull, Landlord may, w,'hout limllal'on, cui off and dlsconllnue any such waler, energy and SaMary services lurn'shed to or for Ihe Premises, Wllhoul any liability 10 Landlord, Any aCllon by Landlord pursuanl to Ihe prov'slons of Ihls Seclion 602 shall nol be construed as an eviclion or d,slurbance of possession or an electJon by Landlord to terminate this lease. Ib) Landlord shall not be liable 10 Tenant In damages or olherwlse If any 01 the ulil,tles supplied by Landlord are Interrupled or lerm'naled because of necessary repaITs, Inslallalions or 'mprovements, or any cause beyond Ihe Landlord's conlrol, nor shall any such inlerruption or lermination relieve Tenanl of Ihe perlormance 01 any of ils obligations hereunder, Tenant shall operale Ihe Premises in SUCh a manner as shall nol waSle energy or waler or burden or harm sanilary service, Landlord may cease 10 furnish anyone or more 01 said services Wllhout responsibll,ly 10 Tenanlexcepl10 connectlhe service facilitJes Wllh such other nearby Source as may be available 'or the services so dIscontinued. Secllon 6.03: TELEPHONE. Alllelephone service reqU/(ed by Tenant lor ,ts Premises shall be oblalned by Tenant and shall be Installed by Ihe appropriate utilily company, All charges for lelephone service (Including Ihe inslallal'on IhereoQ shall be billed direclly to Tenanl by the ulillly company providing the service, Tenant shall pay 10 Ihe appropriate utility company all charges as and when they become due and payable, Sect/on 6,04: TRASH ANO GARBAGE REMOVAL, Tenanl shall be Solely respons,ble lor Irash and garbage removal from the Premises, including Ihe placing 01 alllrash and garbage In conlalners provided by Landlord for such purpose In Ihe event Landlord elecls 10 furnish such service to the tenanls In Landlord's Building, Tenanl agrees to use only Ihe service provided by Landlord and 10 pay for such service (including, without limilation, both the cosl of leasing containers and Ihe cosl of removal) mOnlhly, as Additional Renl, in accordance wllh a schedule 01 charges 10 be established by Landlord (the "Refuse Handling Charge") which Landlord may Include among Ihe Service Charges sel lorth In Seclion 6,02 hereof, In no evenl shall Tenanl be obligaled to pay Landlord more lor such Irash and garbage removal service Ihan the prevailing compel,l,ve rales 01 reputable independenllrash removal contraclors lor service similar 10 Ihal provided by Landlord, Tenant shall, al its expense, Comply wllh all trash recycling procedures in effecl from time to time, Tenant shall nol dispose of any hazardous materials or enVironmentally sensitive or restricled Ilem of waste in any trash facililies provided by Landlord, and In lieu Ihereol. Tenant shall arrange, at lis sole cost and expense, 10 have all such items removed from Ihe Premises and Shopping Center in accordance wilh all Governmenlal Requirements (hereinafter defined). Sect/on 6,05: WATER SERVICE. (a) Landlord will initially purChase waler from Ihe Rlverton Weier Company via alleasl four (4) melered services al four (4) meler room locations, Each domestic water meler will service a grouping of mall stores, A 3/4" capped valve oullet will be provided for each tenant. If Tenanl requires grealer Ihan a 3/4" waler service, Landlord will furnish and inslallthe required water piping and modification, at Tenant's expense. (b) Landlord will divide its lolal waler cosl by gallons Supplied 10 oblain Ihe average waler cosl per gallon, Landlord will charge melered lenants for water usage based on Ihe average cost per gallon multiplied by metered gallons consumed, Landlord willlhen deduct from Ihe 10lal water cas I, the amount billed to melered tenanls and Ihe balance of Ihe water costs shall be apportioned on a GLA basis among the unmelered tenants, ARTICLE 7: USE OF PREMISES Sect/on 7.01: SOLE USE ANO TRADE NAME, Tenant covenanls and agrees thallhroughout Ihe Rent Term, Tenanl shall conlinuously use and operale all of Ihe Premises for Ihe use sel forth in Ihe Fundamenlal Lease Provisions and under Tenanl's Trade Name sel forth therein, Tenant shall nol use or permit the Premises 10 be used for any other purpose or under any olher trade name wilhoutlhe prior wrillen consenl of Landlord, Tenant agrees Ihallf Tenanl or anyone else claiming Ihrough or under Tenanl uses the Premises for a Use or Irade name nol set lorth in Ihe Fundemenlal Lease Provisions wllhout Landlord's prior wrillen consenl, such conducl shall conslitule an Event of Default. Tenanl shall, al its expense, procure any and all governmenlallicenses and permits, InclUding, wllhout limllation, sign permils, required lor the conduct of business in or from Ihe Premises and shall, at all times, comply wilh the requiremenls of each such license and permit. Lendiord does nol represenl or warranlIhalII will oblaln for Tenant (or that Tenant will be able 10 oblain) any license or permit Sect/on 7,02: HOURS, Tenanl covenanls and agrees Ihat Ihroughout Ihe Renl Term, Tenanl shall continuously operate, conduct ils business wllhin and olherwise use Ihe Premises in accordance wilh Ihe terms end condllions ollhls Lease, inclUding, limitation, Ihe provisions of Section 7,01 hereof and all of Ihe olher provisions of Ihls Article 7 (unless Ihe Premises are unfit lor occupancy by reason 01 fire or other casually, in which evenl Article 12 shall COnlrol), Tenanl will keep the lor business to Ihe public alleast: (a) every Monday through Salurday from 9;30 a,m, un1il9;30 p,m,; and (b) als.o from 11 :00 a,m, un11l6:00 p,m, (unless prohibited by juriSdictional authorities) as required by Landlord, In addition 10 right or remedy, the Break Poinl shall be reduced, al Landlord's opllon, on a per diem basis for each violation of the and Tenanl shall pay to Landiord Ihe Percenlage Rent so computed by Landiord, The per diem reduclion shall be 01 Ihe applicable Break Point divided by 360 for each viola lion, Tenant agrees Ihat Landlord may change the business hours Irom time 10 time to renecllocal custom or seasonal shopping pallerns provided thai such changes are" unilormly applied to Ihe majonly of relalllenanls In Landiord's Building, Tenan! shall not be required 10 keep Ihe Premises open during hours when Ihe Enclosed Mall is closed to the public, The requirements of Ihls Section 7,02 are subject, with respect 10 any business controlled by governmenlai reguiations in its hours of operation, to Ihe hours or operation so presc',ibed by" 11 sUCh governmental regulations and are further subject to applicable federal, state. and local environmental and other laws, rules. or regulations, guidelines, judgments or orders. Socllon 7,03: OPERATIONAL REQUIREMENTS, Tenant agrees that it: (a) will not In connection wIth the Premises conduct or permit to be conducted any auction. fire. bankruptcy or gOing oul of business sales, or similar type sale, or utlllze any unethical method of business; provIded. however, that this provisIon shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine its own selling pnces nor shall it preclude the conduct of periodic, seasonal, promotlonal or clearance sales; (b) will not use or permit the use of any apparatus for sound and/or light reproduction or transmission including loudspeakers. phonographs, radios or televisions, or o~ any mUSical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the Interior of the Premises; will not distribute, or cause to be distributed, at Ihe Shopping c.enter or in any part Ihe,eof any handbills or other advertising or nollces; and will not conduct or pe,mit any activities that might constitute a nuisance. or which iue prurient or otheMise not generally considered appropriate In accordance With standards of operallon for the Shopping Cenler established by landlord; will not Install any anlennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior of the Premises; (c) will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable sound. sights, odors. fumes, dust or vapors to emanate or be dispelled from the Premises; (d) will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the area and entrance designated therefor by Landlord from time to tIme; will not permit the parking or standing outside of said area of trucks. trailers. or other vehicles or equipment engaged in such loading or unloading in a manner which may interfere WIth the use of any Common Areas or any pedestrian or vehicular use and good regional shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading and services to the Premises prior to 9:30 a.m. each day; (e) will not paint or decorate any part of the exterior or interior of the Premises, or change the architectural treatment. fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's written approval of such painting, decoration or change; and will remove promptly upon order of Landlord any paint, decoration or change which has been applied to or installed upon the exterior or interior of the Premises without Landlord's written approval; (f) will keep the inside and outside of all glass in the doors and windows of the Premises clean and will replace any cracked or broken glass with glass of the same kind. size and quality; will maintain the Premises at its own expense in a clean, orderly and sanitary condition and free of insects, rodents. vermin, and other pests and will use an exterminator designated by Landlord and at times designated by Landlord; will not burn or permit undue accumulation of garbage, trash, rubbish and other refuse; will (subject to Section 6.04) remove the same from the Premises to compactors or other receptacles designated by Landlord, and will keep such refuse in proper containers in the interior of the Premises until so removed from the Premises; (g) will comply wilh all applicable federal, slate and local environmental and other laws, rules, regulations, guidelines. judgments and orders and all recommendations of any public or private agency having authority over insurance rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant. including, without limitations the requirements imposed by the Americans with Disabilities Act which imposes requirements relating to the design and use of the Premises and the requirements imposed by the Clean Air Act which imposes, among others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants; will not use or permit the, use of any portion of the Premises for any unlawful purpose; and will conduct its business in the Premises in all respects in a dignified manner and in accordance with high standards of store operation; (h) will not. within the vestibule or within three (3) feet of any entrance or exit or of any window of the Premises, or upon glass panes and supports of the show windows, or upon doors and exterior walls of the Premises, affix, place, suspend, or maintain any signs, advertising placards, names, banners, display fixtures, insignia. trademark, descriptive materials, merchandise or any such other item or like items, except as shall be in conformity with the Store Design Criteria and approved by Landlord, Anylhlng placed by Tenanl within the vestibule or within Ihree (3) feel of a lease Line or of any window of the Premises shall be subject to landlord's absolute right of approval. Anything placed by Tenant within the Premises which can be seen. heard or experienced outside the Premises shall be subject to Landlord's approval as to the size, type, design, content, color, copy, location, brightness, volume and display qualities. Further, Tenant agrees to maintain all such items in good condition and repair at all limes. Landlord reserves the right to do so at Tenant's expense if Tenant fails to do scafter five (5) days notice from Landlord, (i) will kee_ the storefronl sign and display windows in the Premises lighted during all periods that the Enclosed Mall is open to the public and for one.half hour after required business hours and for such other periods as may be reasonably required by rules and regulations established in accordance with Section 7.03(k) below; m will provide, or cause to be provided all security within its Premises as it deems appropriate; (k) will also comply with and observe all rules and regulations established by Landlord from time to time in accordance with Section 8.05; (I) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities inconsistent with reasonable standards of a first class shopping mall: 12 (m) will nol use, or permlllo be used, the malls or sidewalks adjacent to the Premises. or any other space outside of Ihe Prem,ses for Ihe dISplay or sale or offef/ng for sale 01 any merchandISe or for any olher bus,ness, Occupalion or undertaking; (n) w,lI provide or cause 10 be prov,ded w,lhln the PremISes, without cosl or expense 10 Landlord, adequale IIghling and secuf/Iy for Its licensees, invlle" and employees dUf/ng such penods as Ihe Premises are open for business; (0) Will mainla'n at all limes a full slaff of employees and a complele slack of merchandISe and olhor goods consistenl with the use of the Premises: (P) Will conduct Its business to maXImIze Gross Sales; (0) will wilh,n nlnely (90) days before or after lhe fifth (5Ih) ann,versary of Ihe Rent Commencement Dale al Tenanl's sole cost and expense remodellhe PremISes, Such remodeling shall include refinishing, renewing and/or replacing the floor covermgs, wall coverlngs,lIghltng, ceiling, fix lures, furniShings, equlpmenl and other trade fixlures at tho Premises and, In Landlord's reasonable judgment, all other work necessary to pulthe Premises in a slale of appearance and condition conforming 10 Landlord's then currenl slandards (or relalllenants of Landlord's Building, All of Ihe provisions of Ihls Lease which apply 10 Tenanl's Work including, Without IImllallon, those for Final Plans and Complellon Cerfificato, shall appiy to Ihe remodeling; (r) will conducllts labor "Ialions and ,ts relallons with employees In such a manner as 10 avoid all slrikes, plckellng, boycolls or handbllling at or about the Prem,ses and Ihe Mall Premises, Tenanl further agrees thai if, during Ihe periOd of any work by or for Tenanl in or aboul Ihe Prem,ses in connection with such work there Is a slrlke, pickeling, boycolling, hand billing or olher aCli'llIy objecllonable 10 Landlord, Tenanl shall remove or cause 10 be removed Irom Ihe Premises and the Mall Premises all pelSons, to Ihe extenl not prohibited by law, unlll such stf/ke, plCkellng, boycolllng, handbiUing or other activity ceases and lhe cause thereof is seltled to Landlord's satisfaction; (s) will not. w,thout oblalning Landlord's prior written approval, which approval may be withheld in Landlord's dlscrellon, inslall any slorage or propane lank, whether above or underground, at Ihe Premises or in Ihe Shopping Center and ,f Landlord shall consenl 10 such inslallation, Tenanl will comply with all applicable laws, regulations and underwriter requlremenls concerning the installallon, operallon, and ClOsure of such lank, Upon terminallon of Ihls Lease, Landiord shall have the opllon of requiring that Tenant, al Tenanl's sole cost and expense, perform leSls relating 10 Ihe condition of such lank andlor remove any tank installed by Tenanl and associaled contaminated malerlal. Tenanl shall be deemed the Owner and operator of any tank Inslalled by Tenanl Tenanl shall relocate such tank at Landlord's request and al Tenanl's expense, 10 another locat;on acceptable to Landlord; (t) will, if applicable, inslall and properly ma'ntain a grease trap and either a "black iron duct", or other self- conlained venllng and exhausl system acceplable to Landlord, Such items shall be inslalled in a manner, of malerials and al a locallon approved in advance by Landlord and shall, at Landlord's opllon, connect 10 lrunk facllllles, If any, supplied by Landlord for same. (u) will nol use Ihe plumbing lacililies for any purpose other than Ihal for which Ihey were construcled and will not dispose of any damaging or injurious substance therein; (v) will not inslall, er permlllobe inslalled or operate any coin or loken opera led vending machine, game machine, pinball machine, pay telephones, pay leckers, pay loilels, scales, amusement devices and machines for Ihe sale of beverages, foods, candy, clgarelles or other commodilles, excepl solely for use by Tenanl's employees In non sales area and nollo exceed collectively two (2) machines or other devices; and Section 7,04: TENANT'S USE OF ROOF, EXTERIOR WALLS, ETe, (w) will not store, display, rent Or seU any audio or video cassettes. Tenanl shall nOl, wilhoUI having oblalned Ihe prior wrlllen consenl of Ihe Landlord, perform any work of any nature whalsoever to Ihe roof, exterier walls er 10 any of the slruclural Portions of Landlord's Building or Ihe Premises or In areas reserved 10 Landlord or excluded from Tenanlln the Store Oesign Criteria, Any damage 10 Ihe Premises or any person or property occurring as a result of a breach ollhis provision shall be the sole responsibility, cosl and expense of Ihe Tenant. Notwithstanding Tenanl's rights set forth elseWhere in this Lease, Landlord may erecl additional stories or olher structures over. all or any part of the Premises, Landlord's BUilding and any olher part of the Mall Premises, In connecllon with such ereclion, or otherwise, Landiord may relocate Tenanrsequipmenl and may erect temporary scaffolds and other aids 10 such construcllon at Landlord's sofe cost and expense. SocHon 7,05: OPERATION OF HVAC SYSTEM, Tenanl agrees, during Ihe hours the PI. mises is open fer business, to control and/or operate as applicable the HVAC syslem serving the Premises regardless olWhether such equipment was installed by Landlord or Tenant so Ihal conditions inside Ihe Premises are mainlalned within a range ef 68 10 72 degrees Fahrenheit or within such range as may be prescribed by applicable governmental authorities so Ihal heal, venlilalion and cooled air are nol drained from Ihe Premises or the Enclosed Mall, Section 7,06: EMPLOYEE PARKING AREAS, Landlord may, from lime 10 lime, designate thai particular portions of Ihe Shopping Cenler parking areas (the "Employee Parking Areas") are 10 be used by Tenant and its employees, or olher individuals working alar from the Premises, If Landlord does so, Tenant and its employees shall park Iheir vehicles only In the Empioyee Parking Areas, Tenanl shall furnish Landlord with a IiSI of Tenant's and employees' vehicle license numbers within fifteen (15) days after Tenant opens for 13 bUSiness in the PremIses, and at Landlord's request, tho Tenant shall thereafter notify Landlord in wnling of any addition, delellon or other change to or from such liSl within five (5) days after Landlord makes such request. Tenant shall notify each employee in wfltlng of the provisions of this Section 7.06 prIOr to each employee commencing employment or work at or from Ihe Premises If Tenanl or any 01 ils employees do not park Iheir veh,cles In the Iimployee Parking Areas, Landlord may give Tenant notice of such violation. If Tenant does not cease such violation, or cause such violation by the employee 10 cease" as Ihe case may be, wllh,n two (2) days after Landlord's nollce of violallon lS.g,ven, Tenant shall pay to Landlord, as Additional Renl. an amount equal to Twenty Five Dollars (52500) per day per violaling vehicle, For any subsequenl violations, said Twenty Five Dollars (525.00) per day per vlolallng vehicle charge shall commence wlthoulthe necesSity 01 fu"her nOlice, and Landlord shall, in addition, have the right to have the violating vehIcles towed at Tenant's expense See lion 7,07: NON.COMPETITION COVENANT, Tenant covenants and agrees wIth Landlord that through the Term, neither Tenant or any "Affiliate of Tenant" (hereinafter defined) shall directly or indlrecUy own, operate or manage or have a financial interest in any business which Is Similar to that of Tenant or which sells or displays, directly or indirectly, merchandise or other goods, or services, similar to those sold or offered or displayed by Tenant at or from Ihe PremISes (the "Competing Store") within five (5) miles from that property line of the Shopping Center nearest 10 Ihe Compellng Slore (Ihe foregoing covenant being hereinafter called ''Tenant's Non.Competltlon Covenant"). "Afflllato of Tenant" means a proprietorship, corporation, partnership, unincorporated association or other person or entity "controlling", "controlled" by or under common "control" with Tenant. The words "con/roiling", "controUed" and "control" snail have lne meanings given them under lne Securllies Exchange Act of 1934, as amended. If the Tenanrs Non-Competition Covenant is violated, then, in addition to all other rights and remedies, Landlord shall have Ihe right to add the "gross recelpls of Ine Compel,ng Slore" (hereinafter defined) 10 Ihe Gross Sales made by Tenanl hereunder 'or Ihe purpose 0' computing Percenlage Rent. The phrase "gross recslpts of Ihe Competing Store" shall be delermined by applYing Ihe definition of Gross Sales al Seclion 4,05 to Iransaclions of the Compellng Slore, Tenant shall include the address and identity of its business at the Premises in all advertisements made by Tenant in which the address and identity of any similar local business of Tenant is mentioned and shall not divert from the Premises any transactions or other business Which would occur at or from the Premises. ARTICLE 8: COMMON AREAS; INSURANCE COSTS Secllon 8,01: USE OF COMMON AREAS, (a) Tenant and its employees and invitees are, except as othef'Nise specifically provided in this Lease, authorized, empowered and privileged during the Term to use the Common Areas for their respective intended purposes in common with other persons. Tenant's right to use any meeting room or auditorium, if any, in the Common Areas shall be subject to such schedules and payment of such fees or charges therefor as Landlord may from time to time adopt governing the use thereof. (b) Landlord shall at all times have the right to utilize the Common Areas including, without limitation, Ihe Enclosed. Mall for promotions, exhibits, carnival type shows, rides, outdoor shows, displays, automobile and other shows or events, the leasing or licensing of kiosks, push carts and food facilities, landscaping, seating areas, seasonal displays, decorative items, and any other use which, in Landlord's judgment, tends to attract customers to, or benefit the customers of the Shopping Cenler, Section 8,02: COMMON AREA MAINTENANCE SUM, (a) The term "Common Area Maintenance Sum" (or the "CAM Sum") shall be charged and prorated in the manner hereinafter set forth and shall mean all sums incurred in a manner deemed by Landlord 10 be reasonable and appropriate and for the best interests of the Shopping Center in connection with the operation and maintenance of the Common Areas and the Shopping Center (and any additions thereto), including, without limitation, the costs and expenses of: (i) operation or maintenance of the storm and sanitary facilities, all water and sewer seNice supplied individual tenants, electrical, gas, steam, water, chilled water and telephone systems, lighting system (including poles, bulbs, and fixtures), other utility systems; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both on and off site; ducts, conduits and similar items: (ii) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and repaving all parking surfaces, services areas and ather portions of the Common Areas: (iii) operation or maintenance of all heating, ventilaling and air coaling and other utility systems, emergency water and sprinkler, security, life safety systems, pumping systems, electrical systems and all escalator and elevator systems and any other items, facilities,equipment, and systems furnished by Landlord as part of the Common Areas; (iv) premiums and other charges far insurance to the extent provided by Landlord, including without limitalion, liability insurance for personal and bodily injury, workers' compensation; plate glass insurance for glass exclusively serving the Common Areas; boiler insurance (if carried); Landlord's risk management expenses and rent insurance provided by Landlord pursuant to Section 11.02; (v) operation or maintenance of gazebos, fountains, art features, sculptures, fencing and similar items located within the Common Areas and interior and exterior planting, replanHng and replacing of alf flowers, shrubbery, plants, trees and ather landscaping within the Common Areas; (vi) operation or maintenance of landlord's Building's structure, including, without limitation, floors, doors, walls, ceiling, roofs, skylights, and windows; (vii) maintenance and depreciation of all machinery and equipment used in the operation or maintenance of the Common Areas (including but nollimited to all escalators, elevators and ather vertical transportation (if any), security vehicles and equipment) and all personal property taxes and other charges incurred in connection with such machinery and equipment; (viii) all license and permit fees, and any and all parking surcharges that may result from any environmental or olher laws, rules, regulations, guidelines or orders; 14 ., ..,.".~'. ;,;:.......~ - ._~._- _..~....;.~'-.,. (ix) the expense of installation and operation of loudspeaker systems, musIC program servIces, cable teleVISIon systems, or similar audIo or video Iransmlsslon systems; (x) personnel, Including wlthoul limitation, cleaning and maintenance personnel, Landlord's on.sito management staff (which Includes the General Manager, AssIStant Manager, secretanes and bookkeepers) together w,th the umforms, payroll, payroll taxes and employee benefits of all such personnel; (xi) the expense of security personnel and eqUIpment. including, without limitation, uniforms as well as transportation and surveillance equipment; (xii) all expenses incurred by Landlord at the same rale per uM landlord charges 10 tenants, in c.:onnection With refuse disposal, water and sewer, gas, steam, exterior slle lighting, electriCity, air conditioning, heating. and other utilities, including, without limitation, an~' nnd all usage, service, hook.up, connection, availabIlity andlor standby fees or charges pertaining to same; and (xiii) Landlord's supervisory charge in an amount aquallo fifteen percent (15%) of the total aggregate cost of operating and maintaining the Common Areas, including but nollimited to those things listed in Section 8.02(a}. (b) Notwithstanding the foregoing, Ihe CAM Sum shall not ,nclude: (i) the expense of any repair or replacement required of landlord pursuant to the reconstruction obligaliOns of Section 12,01; (ii) depreciation (other than depreciation as above specified); and (iii) any utilities which are directly metered, submetered or otherwise payable directly by tenants in Landlord's BUlld,ng, (c) Notwithstanding anything contained in this Lease to the conlrary, in calculallng Ihe "CAM Charge" (defined in Section 8,03), the. CAM Charge may be based upon Landlord's estimales, which estimates and paymenls thereon shall be subject 10 adjustments in future billings 10 Tenant based on Landlord's actual cost. it being understood and agreed that in determining actual costs, Landlord in its sole discretion. will make allocations of certain items bet'Neen the Enclosed Mall and other portions of the Shopping Center of which the Enclosed Mall is a part, which need not be based on relative size or use. (d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an independent contractor or contractors or others and the costs therefor shall be included in the CAM Sum. Except as provided hereinabove, none of the costs for the original construction and installation of the Common Areas shall be included in the CAM Sum. (e) If Landlord from time to time acquires, or makes available. addltionalland or improvements for parking or other Common Area purposes, the CAM Sum shaH also include all costs and expenses incurred by Landlord in connection with the operation or maintenance of said additional land and improvements. (0 The words "maintenance", "maintain" or "maintaining" as used in this Article a includes, without limitation, all repairs, replacements and other work and service of any type whatsoever. Tenant shaH pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum in the manner set forth in (c) below, Tenant's share of the CAM Sum for each calendar year shalf be an amount equal to the CAM Sum for thai period ' lied by the GLA Fracllon (the "CAM" Charge"), For any Partial Year, Ihe CAM Sum will be multiplied by the Partial Year Fractio ith the result multiplied by the GLA Fraction. (b) Tenant shall pay Lan d on the Rent Commencement Oate and on Ihe first day of each calendar month in the Term thereafter amounts estimated by dlord to be Tenant's monthly share of the CAM Sum. landlord may adjust said amount at the end of any calendar month on th sis of Landlord's experience and reasonably anticipated costs. (c) Following the end of each calendar year, Lord shall furnish Tenant a statement covering the calendar year just expired, certified as correct by an independent public acco nt or an authorized representative of Landlord, showing the CAM Sum and the amount of the CAM Charge and the pay men Is e by Tenant with respeclthereto as set forth in the preceding Secllon 8,03(b), If Tenant's aggregate monthly payments on acco of the CAM Charge are greater than Tenant's share of the CAM Sum, Tenant shall receive a credit for the excess against m Iy installments on account of the CAM Charge next becoming due to Landlord; if said payments are less than said share, Tena hall pay to Landlord the difference forthwith, (d) Landlord may have herelofore elected 10 spread, and may hereafter elect 10 spread, amount or any of Ihe expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over s periods instead of including such expenses entirely in the year in which expended or incurred, in which event, tho annual amo tion amount shall be deemed to be an expense incurred during each yeatof the amortization period, notwithstanding that sucli ('nses 111c::l'1IIc::lVl;; been-e~ed-or-tneu(fed-prjeHo-tAe-6xaclltjOrl-Of..thi~a " Section 8.04: CHANGES BY LANDLORO, As between Landlord and Tenant, Landlord shan at all times have the right and privilege of determining the nature and extent of the Common Areas and of making such changes. rearrangement. additions or reductions therein and thereto from time to time which in its opinion are deemed to be desirable or which are made as a result of any federal, state or local environmental or other law, rule, regulation, guideline, judgment or order, including but not limited to, the location, relocation, enlargement. reducement or addition of driveways, entrances, exits, automobile parking spaces, employee and customer parking areas (if any), the direction and flow of traffic, installation of prohibited areas, landscaped areas, and any and all other facilities of the Common Areas. Landlord (or others entitled to) may from time to time make alterations, reductions, or additions anywhere within Landlord's Building or to the Common Areas or other part of the Shopping Center or any lands or improvements added thereto, construct additional buildings or improvements on the Common Areas or elsewhere and make alterations thereta,-build additional stories on any buildings, construct multi.level or elevated or underground parking facilities, 15 and construct roof, walls, and any other Improvemenls over, or in connection With any part of, or all of, Ihe Common Areas in order 10 enclose same. Socllon 8,05: RULES AND REGULATIONS. Tenant agrees thai Landlord may establish and 'rom time 10 time change, alter and amend, and enforce against Tenant. such reasonable rules and regulations as Landlord may deem necessary or advisable for the proper and efficient use, operation and maintenance of the Common Areas, provided that all such rules and regulations aHecting Tenant and its invitees and employees shall apply equally and Without diSCrimination 10 substantially all of the retail tenanls in Landlord's Building or substantially all retail tenants engaging In certain acts or of a certam use. The rules and regulations herem provided for may include, but shall not be limited to, the hours during which the Common Areas shall be open for use Socllon 8,06: LANOLORO'S MAINTENANCE ANO CONTROL, Landlord agrees to maintain and operate, or cause to be maintained and operated, the Common Areas in good and reasonable condition and manner. Landlord shal', as between Landlord and Tenant. at air limes during Ihe Term have the sole and exclusive control, management and direction of Ihe Common Areas, and shall provide or cause to be provided, security in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Areas, excepting, however, Tenant and other tenants of Landlord and bona fide invitees of either who make use of said areas for their Intended purposes and in accordance with the rules and regulations established by Landlord from lime 10 time with respect therelo. The rights at Tenant in and to the Common Areas shall at all times be subjeclto the rights of others 10 use the same in common Wllh Tenant, and it shall be the duty of Tenant to keep all of the Common Areas free and clear of any obstructions or interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord may at any time and from time to time close all or any portion of the Common Areas 10 make repairs or changes, or to such extent as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, to close temporarily any or all portions of Ihe Common Areas and to do and perform such other acts in and to Common Areas as, in the exercise of good business judgment. Landlord shall determIne to be advisable with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees ana invitees. Soctlon 8.07: COST OF LANOLORO'S INSURANCE. For each Year of the Rent Term hereof, Tenant shall pay to Landlord, as additional rent, Tenant's share of all premium costs for fire and broad form all risks extended coverage insurance and rent insurance respecting all of Landlord's BUildings and improvements upon the Shopping Center, multiplied by Ihe GLA Fracllon, payable monlhly, If Tenant's sharo of the aclual cost at such insurance for any Year exceeds said annual insurance charge actually paid by Tenant for such period, within ninety (90) days after the end of Year, Landlord will deliver to Tenant a statement showing in reasonable detail Tenant's share of such actual insurance costs and, within twenty (20) days after delivery of such statement, Tenant will pay such excess shown 10 be due by said statement, as additional rent (subject to adjustment as set forth below). The statement submitted by Landlord shall be sufficient evidence of the actual insurance costs. At anytime costs will exceed the monthly installments then due from Tenant hereunder, Landlord may adjust Ihe amount of the monthly installments thereafter due from Tenant on account of its share of the costs of insurance by increasing such installments by an amount equal to one4twelfth (1/12th) of the excess, if any, of Tenant's estimated share of such costs over the annual insurance charge then due hereunder. ARTICLE 9: MERCHANT'S ASSOCIATION Soctlon 9,01: MERCHANT'S ASSOCIATION, Tenant shall join and maintain membership in the Merchant's Association ("Association") authorized and recognized by Landlord and established by tho tenants in tho Shopping Cenlor, Tenant shall pay to Ihe Association oach Year such reasonable assessments as may be fixed from lime to time by the Association for creating and maintaining a fund to be used by the Association for general promotional, advertising and welfare purposes, including any assessments. or dues for advertising, publicity and general public relations. Tenant will comply with such by laws, rules and regulations as may be adopted from time to time by said Association and take such action as shall from time 10 time be necessary to remain in good standing in the Association. Tenant agrees to use the name of the Shopping Center prominently in all of its advertising and promotional literature regarding the Premises, Soctlon 9,02: BY LAWS, Tenant agrees that the by Itlws of the Association shall provide: (a) each member which is present at a meeting and not delinquent in any of its payments to the Association shall have one vote for each square foot of noor area in its Premises, (b) each delinquent member shall be liable to the Association for its costs (including attorney's fees) incurred in collecting such member's delinquent debts to the Association, (c) Landlord shall have a number of votes equal to the lesser of twenty4five (25%) percent of the total of all votes in the Association including the votes of Landlord or the percentage which Landlord's contribution to the Association for the association year bears .to the lotal amount of all dues payable to Iho Association for such association year (d) the Landlord, as agent for the Association, may, at its option, collect all assessments due including delinquent assessments or designate another party to do so, (e) Landlord may, at its option, elecllo provide the Association with the services of a promotion director and all staff deemed necessary by Landlord to effectively carry out the promotion and public relations objectives of the Association and/orsuch reasonable space within the Shopping Center as may be necessary to carry out the functions of the promotion director and 16 his or her staff and the Assocratlon shall relmburso landlord for such, and (f) Landlord may provide that Ihe occupant at any Major shall havo a seat on the Board ot Directors Furthermore, no by law, rule or regulation of Iho Association shall connict wllh the provIsions 0' Ihls Lease, and mOle parl,cularly wllh any rules and regula lions adopled by Landlord or in any respect diminish the fig his 0' Lanr1lord hereunder, Soctlon 9,03: OISSOLUTION OF MERCHANT'S ASSOCIA TION, Tenant agreos that landlord sMII have the unilateral flghl to lake any steps reqUired to terminate the Association and to replace the same with a marketing service, promo lion fund, advertising fund, or any other Similar enllty designaled by landlord in which even!. upon notIce to Tenant, Tenant shall aulomatlcally be deem~d a member thereof and shall contribute to the same Ihe amount which Tenant immediately pnor to such terminatIon was required to contnbule to the Association. FUr1her, Tenant does hereby irrevocably assign to landlord all of Tenant's vOling righls contained In any by-law or other similar documenl forming or governing the administration of any such Association, to enable landlord 10 vote in favor at such termination. ARTICLE 10: CONSTRUCTION WORK Soctlon 10.01: APPROVALS AND S1'ANOAROS. Tenant shall not perform any conslruction or make any alteratIons or changes in or to the Premises at any lime during the Term (herein sometimes collectively called "Construction Work") without landlord's prior wntlen consent. In no event shall Tenant make or cause to be made any penetration through any roof, noor or exterior or corridor wall without the prior wrjllen consent of Landlord. Tenant shall be directly responsible for any and all damages, including, without limitation, damages 10 landlord's Building, the Premises and the premises of other tenants in landlord's BUilding resulting from any of Tenant's Construction Work, whether or not landlord's consent therefor was obtained. Any and all Construction Work which IS consented to by landlord shaff be performed in accordance with (a) plans and specifications prepared by a licensed architect, or engineer and approved in Writing by the landlord before the commencement of the Construction Work, (b) all necessary governmental approvals and permits, which approvals and permits Tenant shafJ obtain at its sole expense, and (c) all applicable laws, rules, regulations and building codes relating thereto. All Construction Work shaff conform to landlord's Store Design Criteria and shall be performed in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shalf at all times be a complete unit except during the period of the Construction Work, Any Construction Work performed by Tenant without landlord's consent shall be returned to its original condition at Tenant's expense upon request by landlord. Tenant shall perform any Construction Work in such a manner as not 10 obstruct the access to the premises of any other occupant to the Enclosed Mall nor obstruct other Common Areas Soctlon 10.02: INSURANCE ANO RECONSTRUCTION, In the event Tenant shall perform any permitted or required Construction Work, none at the Construction Work need be insured by landlord under such insurance as landlord may carry upon the Landlord's Building nor shafllandlord be required under any provisions of this lease relating to reconstruction of the Premises to reconstruct or reinstall any such Construction Work. ARTICLE 11: INDEMNITY AND INSURANCE Soctlon 11.01: TENANT'S INSURANCE, (a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the foHowing types of insura:1ce, in the amounts specified and in the form hereinafter provided for: (i) Commercial General liabilitv Insurance. Commercial general liability insurance covering Ihe Premises and Tenant's use thereof against claims for personal and bodily injury or death, property damage and product liability occurring upon, in or about the Premises, such insurance to afford protection to the limit of not less than $3,000,000 in respect of property damage and bodily or personal injury or death to any number of persons arising out of anyone occurrence. The insurance coverage required under this Section 11.01(a)(i) shall, in addition, extend 10 any liability of Tenant arising out of the indemnities provided for in Section 11.03, The general aggregate limits under the liability insurance policy or policies must apply separately to the Premises and to Tenant's use thereof, The certificate of insurance evidencing the commercial generalliabifity form of policies shall specify on the face thereof that the limits of such policies apply separately to the Premises. (Ii) Boilers, Boiler and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels and systems serving the Premises (if any); and if the said objects and the damage that may be caused by them or result from them are not covered by Tenant's extended coverage insurance, then such insurance shall be in an amount not less than $250,000 and be issued on a replacement cost basis, (iii) Tenant Leasehold Improvements and Property. Insurance covering all of the items included in Tenant's leasehold improvements, heating, ventilating and air conditioning equipment and all other improvements and betterments installed by (or demised by this lease to) Tenant. and aU trade fixtures, merchandise and personal property from time to time in, on or upon the Premises, and alterations, additions or changes made by Tenant pursuant to Article 10, in an amount not less than one hundred percent (100%) of their full replacement cost from lime to time during the Term, providing special form coverage, including but not limited to, protection against the perils incluaed with the standard state form of fire and broad form extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief, Any policy proceeds from such insurance shall be held in trust by Tenant's insurance company for the repair, reconstruction and restoration or replacement of the property damaged or deslroyed unless this lease shall cease and terminate under the provisions of Article 12, (iv) Workers' Compensation And Employer's liability, Workers' Compensation and Employer's 17 liability insurance affording statutory c(,.~rage and containing statutory limits with the Employer's liability portion thereof to have minimum Ilm,ts of $ 1,000,000,00, (v) Business Interruption Insurance. Business Interruption Insurance equal to not less than fifty percent (50%) of the estimated gross earnings (as defined in the standard state form of business Interruption insurance pOlicy) of Tenant at tho Premises which insurance shall be issued on an "all risks" basis (or its equivalent). (b) All pOlicies ot insurance provided tor in SeclFon 1 101(a) shall be Issued by 'nsurance companies with a financial rallOg of not less than A as rated in the most current avatlable "Best's Insurance Reports", and qualified to do business in the state in which Landlord's Building is located. Each and every SUCh policy. except for Workers' Compensation and Employer's Liability insurance: (i) shall be issued in the name of Tenant and shall name as an additional insured each of Landlord, Agent and any other parties In Interest from time to time designated in writing by notice from Landlord to Tenant; (II) shall be tor the mutual end joint benefit and protection of Landlord and Tenant and any such other parties in interest; (iii) shall (or a cMificafe Ihereof shall) be delivered to each of Landlord and any such other parties in Interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent; (iv) shall contain a provision that the insurer will give to Landlord and such other parties in interest at least thirty (30) days notice in writing In advance of any material change, cancellation. termination or lapse, or the effective date of any reduction in the amounts of insurance; (v) shall be written as a primary policy which does not contribute to and is not in excess of coverage which Landlord may carry; and (vi) shall contain a provision that Landlord and any such other parties in interest. although named as an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents and employees by reason of the negligence of Tenant. (e) Any insurance provided for in Section 11.01{a) may be maintained by means of a policy or policies of blanket Insurance. covering additional items or locations or insureds, provided, however, that (i) Landlord and any other parties in interest from time to time designated by Landlord to Tenant shall be named as an additional insured thereunder as its interest may appear; (ii) the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance; (Iii) any such policy or policies [except any covering the (Fsks referred to in Section 11..Q1 (a)(i)] shall specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying) the amount of the lotal insurance allocated to the Tenant's Improvements and property more specifically detailed in Section 11,01 (a)(iii); and (iv) the requirements set forth in this Article 11 are otherwise satisfied. (d) Tenant agrees to permit Landlord at all reasonable times to inspect the policies of insuran'ce of Tellant with respect to the Premises for which policies or copies thereof are not delivered to Landlord. Sect/on 11.02: LANDLORD'S INSURANCE, (a) Landlord shall at all times during the Term carry and maintain the following types of insurance in the amounts specified and in the form hereinafter provided for: (i) Commercial General Liabilitv Insurance. Commercial general liability insurance against claims for property damage and bodily Injury or death and property damage, such insurance to afford protection to the limit of not less than 55,000,000 in respect to property damage, injury or death to any number of persons arising out of anyone occurrence. (Ii) landlord's Real and Personal Property. Insurance covering the Landlord's Building[exclusive of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section 11.01(a)(ili)) in an amount not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of excavations, foundations and footings), from lime to time during the Term, providing protection against perils included within the standard stale formof fire and extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and ma!icious mischief, and such other risks as Landlord may from lime to time determine and with any such deductibles as Landlord may from time to time determine. . (iii) Rent Insurance. Rent insurance with respect to the premises of the tenants In the Shopping Center if available at a cost which Lanplord In its sole judgment deems reasonable, against loss of rents in an aggregate amount equal to nol more Ihan twenty-four (24) times the sum of (I) the monthly requirement of Minimum Rent of such lenanls, pius (Ii) the average monthly amount estimated from time to time by landlord to be payable by such tenants as Percentage Rent and as' Additional Rent pursuant to their leases. (b) Any insurance provided for in Section 1 1..02(a) may be mainlalned by means of a policy or policies of blanket insurance, covering additior.al items or locations or insureds provided that the requirements of Section 11.02(a) are otherwise satisfied. . (c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be ' named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the insurance provided for in this Section 11,02 or otherwise. Section 11,03: INDEMNIFICATION BY TENANT, Tenant agrees that Landiord shall not be liable for any damage or liability of any kind or for any injury to or death ,of 16 persons or demage 10 property of Tenanl or any olher person dunng Ihe Term, 'or any cause whalsoever (Including w,lhoul IImllallon Ihe acls or omissions 01 Landlord or Agenl, bursl,ng pipes and smoke) by reason of Ihe conslruCllon, use, occupancy or enjoymenl 0' Ihe Premises by Tenanl or any person Ihereln or holding under Tenanl or happening upon or eboullhe Premises and Tenanlforlhe purposes ofthis Secl,on 11,03 shall be deemed 10 be In exclusive conlrol oflhe Premises during Ihe Term, Tenanl does hereby egree 10 and shall prolect. defend, indemnify and save harmless Landlord end Agenl from all claims, acl,ons, demands, cosls and expenses end liability whalsoever, Includ,ng reasonable allorney's 'ees, on accounl of any such real orelaimed evenl, damage or liabil,ty, and from all liens, claims and demands ariSing from any OCcurrence in, or aboullhe Premises, or arising oul 0' Ihe conslruClion, use, occupancy or enjoymonl of Ihe Premises, or occasioned In whole or in Part by any acl or omISsion of Tenant. lis agenls, conlraclors, selVanls, employees or invilees. Tenanl shall not. however, be lIabie for damage or injury occaSioned by Ihe w"'ful act 0' Ihe Landlord wh,ch Is Ihe cause 0' damage or 'nJury uniess Tenant is required by this Lease to aSSume or insure against such damage or injury. Secllon 11,04: MUTUAL WAIVERS, Landlord and Tenant hereby waive any rlghls each may have againsllhe olher on accounl of any loss or damage occasioned 10 Landlord or Tenant, es Ihe case may be, Iheir respecl,ve property, Ihe Premises, liS conlenls or 10 Ihe olher ponlons of Lendlord's Building, arising 'rom any risk covered by fire and exlended coverage insurance, and 10 Ihe extenl of recovery under valid and colleclible pOlicies of Such insurance, provided Ihal such waiver does nol invalid ale such policies or prohlbll recovery Ihereunder, The Parties herelo each, on behalf of Ihelf respeclive insurance companies insunng Ihe property of eilher Landlord or Tenanl agalnsl any such loss, waive any righl of subrogallon Ihal such insurers may have againsl Landlord or Tenanf, as Ihe case may be. Secllon 11,05: COMPLIANCE WITH INSURANCE ANO GOVERNMENTAL REQUIREMENTS. Subjecllo Landlord's obllgalions in Seclion 13,01 to malnlaln the slructure of Ihe Premises, Tenanl agrees at lis own expense 10 complywilh all Governmenlal Requiremenls (hereafter defined) as well as Ihe recommendalions and requirements, wllh respecl to Ihe Premises, or ils use or OCCupancy, of Ihe insurance underwrilers or Insurance rallhg bureau or any similar public or privale body and any govern menial aulhollly having jurlsdiclion wilh respect to the use or occupancy of Landlord's BUilding, inClUding, bUI nolllmiled 10, inslallallon of fire exlinguishers or automalic deleclion, Suppression syslems and/or life- safely syslems, any changes, mOdifications or alleralions in Ihe deleclion and/or suppression Syslems or addllional deleclors and/or sprinkler heads or the iocalion of panllions, trade fixlures, or olher conlenls of Ihe Premises, Landlord shall not malerially change Ihe dimensions of Ihe Premises or malenally affect access 10 Ihe Premises from Ihe Landlord's Building unless required 10 make any such changes by reason of any federal, Slale or local environmental or olher law, rule, regulalion, guideline, judgmenl or order (collecllvely "Governmental ReqUirements"), Secllon 11,06: EFFECT ON LANOLORO'S INSURANCE, Tenanl shall nol do or suffer 10 be done, or keep or suffer 10 be kepI, anylhlng In, upon or aboullhe Premises which w'" conlravene Landlord's policies insuring agalnslloss or damage by fire or other hazards, or which will prevenl Landlord from procuring such policies in companies acceplable 10 Landlord al regular rales or which w'" in any way cause an increase In the insurance rales for any ponion of Ihe Shopping Cenler, If Tenanl violales any prohlbilion provided for in Ihe firsl senlence of lhis Section 11,06, Landiord may, wilhout nOl,ce 10 Tenanl, correct Ihe same al Tenant's expense, Tenanl shall pay to Landlord as Additional Renl fonhwlth upon demand Ihe amount of any increase in Ihe premiums for insurance resulling from any violalion of Ihe firsl senlence of Ihls Seclion 11.06, eVen if Landlord shall have consemed 10 Ihe doing of or the keeping 01 enylhing on Ihe Premises which consliluled such a violation (bul payment of such Addilional Renl shall nol entitie Tenant to violate the provisions of the tirst sentence of this Section 11.06). Secllon 11,07: LIMIT OF LANOLORD'S RESPONSIBILITY, Landlord shall not be responsible or liable 10 Tenanl for any loss or damage Ihal may be occasioned by or Ihrough Ihe acls or omissions of persons OCcupying space adjoining 1I1e Premises or any olher pan of Ihe Shopping Cenler or Landlord's Building, or for any loss or damage resulllng 10 the Tenant or Its property from burs ling, Sloppage or leaking of water, gas, sewer or sleam pipes or olher utility. lines or for any damage or loss of property wilhin the Premises from any cause whalsoever, Such IImilallon of responslblllly and liability shall nol, however, apply to Landlord's willful acts, exceptio Ihe exlent such wiUful acls are waived or released by Tenanl pursuant to Seclicns 11,03 or 11,04, Secl/on 12,01: LANDLORD'S OUTY TO RECONSTRUCT. ARTICLE 12: DAMAGE OR DESTRUCTION In the evenllhe Landlord's Building is damaged or destroyed by any of Ihe risks referred 10 in Section 11 ,02(a)(/I) agalnsl which Landlord is obligaled to procure insurance, Landlord shall (SUbject to being able to obtain all necessary permils and approvals Iherefor, InClUding Withoullim/:allon permils and approvals required from any agency or bOdy adminislering environmental laws, rules or regulallons), wilhin one hundred twenty (120) days after Such damage or destruction (unless Landlord lerminales Ihis Lease pursuanllo Seclion 12,03), commence 10: (a) repair or reconslruct Landlord's Building and (b) repair or reconstruct the structural noor slab, demising wall Sluds (wilhout drywall) and roof (or floor slab above) as tha case may be of Ihe Premises, Landlord shall prosecule all such work dillgenlly 10 completion, In no event shall Landlord be liable for inlerruplion 10 Tenant's business or for damage 10 or repair or reconslruclion of any of Ihose things which Tenant is required 10 insure pursuant to Section 11,01(a)(/li), nor shall Landlord be required 10 expend more for any repair or reconstruction pursuanlto Ihis Seclion Ihan Ihe nel amounl of insurance proceeds aclually received by Landlord and allocable 10 the Premises on a square foot basis. 19 Section 12,02: TENANT'S OUTV TO RECONSTRUCT. If any ,tern which Tenant Is required to Insure pursuanllo Sect,on 11..01(a}(,'i) ,s damaged or deslroyed by firoor olher casually, Tenant shall (subject 10 being able to oblaln all necessary permits and approvals therefor, 'ncludlng w,lhoull,m,lal'on permits and approvals required from any agency or body admlnlstorlng envrronmenlallaws, rules and regulations), within fifteen (15) days aher Landlord has subslantially repaired or reconstrucled Landlord's Building and the portion of the Premises Landlord Is obligated to repair or reconSlrucl pursuanllo Section 12.01 (unless Landlord term,nates this Lease pursuanllo Secllon 1203), commence 10 repair or reconstruct such damaged or deslroyed ilems 10 alleasl subslanllally the same condition In which they were prior 10 such damage or destruction and prosecute the same diligently to completion Section 12,03: LANOLORO'S RIGHT TO TERMINATE, (s) landlord shall have the option to terminate this Lease upon giVing written notIce to Tenant of the exercise Ihereol wllhln one hundred twenty (120) days aher the Landlord's Building is damaged or destroyed If, (I) the Premises are rendered wholly unM for carrying on the Tenant's business after damage to or destruction thereof from any cause; or (ii' landlord's Buildmg 15 damaged or destroyed as a result of any need, earthquake, act of war, nuclear reaction, nuclear radiation or radioactive contamination, or from any other risk not covered by insurance which Landlord Is obligated 10 procure pursuanllo Section 11,02(a)(II); or (III) any damage to or destruction of Landlord's Bu"ding occurs w,thln the last three (3) Vears of the Term or in any Partial Year at the end of the Term; or (iv) fifty percenl (50%) or more of the GLA in the Landlord's Build,ng Immediately prior 10 the damage or destruction is rendered unfit for carrying on business therein; or (v) Landlord's Building Is so substanllally damaged that II is reasonably necessary, In Landlord's judgment. to demolish the same for the purpose of reconstruction. (b) Unless so terminated, this L~ase shall continue in full force and effect, and Landlord and Tenant shall perform their respective obligations under Section 12.01 and 12.02. Upon any termination of this Lease under any of the provisions of thiS Section 12.03, the Rent shall be adjusted as of the date of such termination and the parties shall be released from all liability hereunder upon the surrender of possession of the Premises to the Landlord, except for items which have been theretofore accrued and are then unpaid. Section 12,04: ABATEMENT OF RENT, If this Lease is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the Landlord's Building, and if the Premises are rendered wholly or partially unfit for carrying on Tenant's business by such damage or destruction, then the Minimum Rent and the Additional Rent payable by Tenant under this Lease shall be abated, and the applicable Break Point and Partial Vear Break Point (as the case may be) shall be reduced In direcl proportion to Ihe percentage of the GLA in the Premises which is rendered unfit for that period from the date the Premises are so rendered unfit until the earlier of sixty (60) days after Landlord re.delivers possession of the Premises to Tenant or the date Tenant reopens for business. ARTICLE 13: MAINTENANCE OF PREMISES Section 13,01: LANOLORD'S DUTY TO MAINTAIN STRUCTURE. Landlord will keep the roof, exterior face of service corridor walls, structural columns and structural floor or floors which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other special flooring, walls installed at the request of Tenant, doors, windows and glass) in good repair subject to the provisions of Article 8. Notwithstanding the foregoing provisions of this Section 13.01, Landlord shall not in any way be liable to Tenant unless Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord fails to commence making such repairs within a reasonable period thereafter, and provided that any damage necessitating such repairs shall not have been caused by the omission, neglig~nce or willful act of Tenant. its concessionaires, invitees, officers, employees, licensees or contractors or by the failure of Ten ant to perform any of its obligations under this Lease (in either of which events Tenant shall be responsible therefor) or have been caused to any of the items Tenant is required to insure pursuant to Article 11. Landlord shall be under no liability for repair, maintenance, alteration, improvement, reconstruction, renewal or any other action with respect to the Premises or any part thereof, or any plumbing, electrical, healing, ventilating, air conditioning, or other mechRnicallnstallation therein, except as may be expressly set forth in this Lease. Section 13.02: TENANT'S OUTV TO MAINTAIN PREMISES, Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at its own cost and expense, maintain and make all needed repairs, and do all other work to or for the Premises and every part thereof to render the same in good and tenantable condition. Tenant's obligation under this Section 13.02 shall include, but not be limited to, repairing, replacing and otherwise maintaining items as are required by any governmental agency having jurisdiction thereof (whether the same Is ordinary or extraordinary, foreseen or unforeseen), walls (other than the exterior face of service corridor walls), ceilings, plate glass, utility meters, pipes and conduits outside the Premises which are.inslalled by or demised to Tenant or which exclusively serve the Premises, all fixtures, heating, ventilating and air conditioning equipment installed by or demised to or used solely by Tenant, if any (whether such heating ventilating and air conditioning equipment is located inside the Premises, between the ceiling and the roof or on the roof of Landlord's Building), sprinkler equipment and other equipment within the Premises, the storefront or storefronts, all of Tenant's signs, security grilles or similar enclosures, locks and closing devices, and all window sash, casement or frames, doors and door frames: provided that Tenant shall make ,no adjustment, alteration or repair of any part of any sprinkler, life safety or other detection or suppression system in or serving the Premises without Landlord's prior approval. Tenant shall permit no waste, damage or injury to the Premises and Tenant shall Initiate 20 ,.-- - -'.,~~., and carry out a program of regular repair and other mamtenance of the PremIses, Including the painting or refinishing of aU areaG of the interror and the storefront as approved by landlord, so as to Impede, to the extent possible, deterloration by ordinary wear and tear and 10 keep tho sarno in allrachve conditIon. ,Tenant will not overload the electrical wiring or other systems serving the Premises or within the Premises, and wIll install at Its expense, but only after obtaining landlord's written approval. any additional electrical wiring or other Ilems whIch may be reqUired in connection with Tenant's apparatus. Soctlon 13,03: RIGHT TO ACCESS TO THE PREMISES. landlord and Its authorized representallve may enter tho PrOmises at any and all times durrng usual business hours for the purpose of inspecting Ihe same (and at all other times in Ihe case of emergency), Tenant funher agrees Ihal Landlord may from time 10 time go upon the Premises and make any additions, alterations, repairs or replacements and do other work to the Premises or to any utilities, systems or equipment located in, above or under the Premises which landlord may deem necessary or desirable 10 comply with all governmental requirements andlor recommendations of an insurance rating bureau or of any similar public or private body or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the Premises if the Tenant does not make or cause such additions, alterations, repairs or other work to be made or performed promplly after receipt of written demand from Landlord. Nothing herein contained shall imply any duty on the part of Landlord to do any such work which under any provision of this Lease that Tenant may be required 10 do. nor shall il constllute a waiver of Tenant's default In failing to do the same. In the event Landlord performs or causes any such work to be perlormed, Tenanl shali pay Ihe cost thereof 10 Landlord as Addillonal Rent upon demand Iherefor, In addition, Landlord may install, use, repair or replace any and all materials, tools and equipment. and pipes, ducts, conduits, columns. foundations. footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building in, through, under or above the Premises that Landlord deems desirable therefor, wilhoullhe same constituting an actual or constructive eviction of Tenant. Landlord may also enler the Premises at all limes during usual business hours for the purpose of showing Ihe Premises to prospective purchasers, mortgagees and tenants. No exercise by Landlord of any rights provided in Section 13.01 or 13.03 shall entitle Tenant to any damage for any inconvenience, disturbance, loss of business or other damage to Tenant occasioned thereby nor 10 any abatement of Renl. Section 13.04: CONFLICTS, To the extent. If any, that there may be any conflict betweel' this Article 13 and Article 12. or between this Article 13 and Anlcle 22, Anlele 12,11 applicable, or Micle 22, if applicable, shall prevail. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Sect/on 14.01: TENANT'S PROPERTY; REMOVAL, Any trade fixtures, signs, counters, shelving, inventory, showcases, mirrors, and olher personal property of Tenant not permanently affixed to the Premises shall remain the property of Tenant. Tenant shall have the right, provided Tenant Is not in default under this lease, at any time and from time to time during the Term, to remove any and all of its personal property which it may have stored or installed in the Premises. If Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of such property and to use such property without rent or charge, and Landlord, whether or not it takes possession of such property, shall have the benefit of any lien thereon permitted under the laws of the state in which Landlord's Building is localed and, if such possession is taken or such lien is asserted by Landlord In any manner, including but not limited 10 operation of law, Tenant shall not remove or permit the removal of said trade fixtures, signs .or other personal property until such possession is rellnquished or the lien is removed, as the case may be. Nothing in this Article shall be deemed o'r construed to permit or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement thereof with similar personal property of comparable or better quality, or otherwise render the Premises unsuitable for the continued conduct of Tenant's permitted use thereof. Tenant at its expense shall immediately repair and otherwise make good any damage occasioned to the Premises or Shopping Center by reason of installation or removal of any such personal property unless such damage is caused by Landlord pursuant to Section 13.03 and if Tenant fails to remove such items from the Premises prior to such expiration or termination, or if this Lease is terminated by Landlord and Tenant fails to remove such items from the Premises prior to the effective date of such termination, then in any such event all such personal property shalllhereupon become the property of Landlord, wllhout funher act by eilher party hereto, unless Landlord elects to require aU or a portion of such items to be removed by Tenant in which case Tenant shall promptly remove the items'designated by Landlord and restore the Premises to its prior condition at Tenant's expense, Section 14,02: IMPROVEMENTS TO PREMISES, All improvements made to the Premises by Tenant. including, but not limited to, the items furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and partitions, heating, ventilating and air-conditioning equipment, mechanical and plumbing equipment, but excluding trade fixtures and signs and other personal property specified in Section 14,01, shall become the property of Landlord upon expiration or earlier termination of this Lease; provided, however, that Landlord may designate by written notice to Tenant, prior to Tenant's making such alterations. those alterations, changes, and additions made in the Premises after the Rent Commencement Date which shall be removed by Tenant at the expiration or termination of this Lease, in Which event Tenant shall at Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the Premises caused by such removal or by the installation of such alterations, changes or additions. Section 14,03: FINANCING STATEMENT, Tenant shall not enter into, execute or deliver any financing agreement that can be considered as a priority to any lease. mortgage or deed of trust upon the Premises and. in the event Tenant does so execute or deliver such, financing agreement, such action on the part of Tenant shall be considered an Event of Default entitling Landlord to such remedies as are provided for herein. Tenant agrees that Landlord shall have an express contractual lien (in addition to any statutory lien) 21 .... for the performance of all Tenant's obligations pursuant to this lease, upon all of tho fixtures. machinery, eqUipment, goods, inventory and personalty which are, or hereafter may be, placed in or l,pon the Premises. ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 15,01: PROHIBITED. Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not transfer. assign, sublet. enter into license or concession or other occupancy or use agreements or mortgage or hypothecate this lease or the Tenant's interest in and to the Lease or the Premises or any part thereof (herein collectively referred to as "Transf.r") without first obtaining in each and every instance the prior written consent of landlord which landlord may withhold in its sole discretion. Any attempted Transfer without such prior written consent shall be an Event of Default, shall not be binding upon Landlord, shall confer no rights upon any third person and shall not relieve Tenant of its obligations under this Lease, Any transfer by merger, consolidation, liquidation or otherwise by operation of law, including, but not limited to, an assignment for the benefit of creditors, as well as any transfer, assignment, or hypothecation of any stock or general partnership interest In Tenant so as to result in a change of the control thereof, shall be included in the term "Transfer" for the purposes of this lease and shall be a violation of this Section 15,01 and an Event of Default, except as otherwise specifically set forth In this Article , 5, Consent by Landlord to any Transfer shall not constitute a waiver of the necessity for such consent to any subsequent Transfer, In the event of a permitted Transfer, Tenant agrees nevertheless to and shall remain fully liable for tho full performance of each and every obligation under this Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of the terms of this Lease, In the event of any proposed Transfer, Tenant shall deliver to landlord written notice (the "Request Notice") requesting landlord's consent to the proposed Transfer at least thirty (30) days prior to the date on which, with landlord's prior written consent. the Transfer would be effective. The Request Notice shall contain, without limitation, at least: (i) the full identification of the proposed transferee: (Ii) the most recent financial statements and other evidence of the transferee's financial responsibility and business performance; (iii) the transferee's proposed speCific use and business proposed to be conducted at the Premises; (iv) the scope of any proposed alterations to the storefront of and within the Premises; and (v) the monetary and non.monetary terms and conditions of the proposed Transfer, Landlord shall have Ihe right and option (the "Take.back Option"), exercisable by Landlord giving Tenant written notice within thirty (30) days after landlord's receipt of the Request Notice of reacquiring the Premises or portion thereof which is the subject of the proposed Transfer and terminating this Lease with respect thereto. If Landlord elects not to exercise the Take-back Option and elects to give Landlord's written consent to the proposed Transfer, then Tenant shall pay to Landlord forthwith upon Tenant's receipt. as Additional Rent. all sums and other economic consideration (whether by lump sum payment or otherwise) received by Tenant in any month as a result of the Transfer whether denominated rentals or otherwise which exceed, in the aggregate, the total sums which Tenant is obligated to pay and does pay Landlord under this lease in the same month (prorated to rellect obllgallons allocable to that portion of the Premises which Is the subject of the Transfer), all without affecting or reducing any other obligation otTenant hereunder provided, that in the case of an assignment of this Lease such Additional Rent payment by Tenant to Landlord shall equal the entire consideration for such assignment. If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer is not made (including without limitation, delivery of possession by Tenant to and occupancy by the proposed transferee approved by Landlord) within thirty (30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent and the Transfer shall be automatically null, void and of no force or effect whatsoever, The Take-back Option shall not be exhausted by anyone exercise thereof by landlord but shall be exercisable from time to time and as often as there is a proposed Transfer. The Take.back Option may be exercised by any assignee of Landlord's right, title and interest in this lease or any other person which at the time of the Request Notice is landlord under this lease. If after receipt of the Request Notice landlord requests additional or further information which landlord reasonably requires to consider the proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request therefor and the period for Landlord to exercise the Take.back Option shaH be extended by the number of days between Landlord's request for and Landlord's receipt of such additional or further information, Tenant shall pay to Landlord the sum of Five Hundred (S500,OO) Dollars to defray Landlord's adminlslratlve costs, overhead and. counsel fees in connection with the consideration, review and document preparation of any consented to assignment or subletting, such sum to be paid at the time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor. ARTICLE 16: DEFAULTS BY TENANT Section 16,01: EVENTS OF DEFAULT. This Lease is made upon the condition that Tenant shall punctually and faithfully perform and fulfill all of the covenants, conditions and agreements by it to be performed as in this Lease set forth. In addition to events elsewhere stated in this lease as Events of Default; the following shall be deemed to be an Event of Default (each of which is sometimes referred to as an "Event of Defautt" In this Lease): (a) the failure by the Tenanlto pay Minimum Rent and/or Percentage Renl and/or Additional Rent or any installment or year-end adjustment thereof if such failure continues for ten (10) days after written notice thereof by landlord to Tenant; or (b) the failure of Tenant to submit its Design Drawings on or before the Design Drawings Submission Date in accordance with Section 2.03(c) or commence Tenant's Work on or before the Construction Commencement Date in accordance with the terms and conditions of Section 2.03(c); or (c) the failure of Tenant to open its business to the public in the Premises on or prior to the dale on which Tenant is required to open its. business to the public pursuant to the terms and conditions of Section 2,04, or the failure to open the Premises, or to keep the Premises open, on the days and hours required by this lease, or if Tenant vacates or abandons the Premises; or 22 (d) the failure of Tenant to observe or perform any of the covenants, terms or condllions sot forth In Article 15 (relal,"g 10 assign men I and sublelllng); or (e) Deleled; (f) the sale or removal of a substantial portion of Tenant's property located In the Promises In a manner which IS outside the ordinary course of Tenant's business; or (g) the failure to maintain Inventory levels and employee staff in accordance with the provIsions of Article 7 hereof, or (h) repetition or continuation of any failure ,to timely pay any Minimum Rent and/or Percentage Rent and/or Additional Rent or other sums reserved hereunder or to timely report Gross Sales as provided in SectIon 4.06 hereof where such failure shall continue or be repeated for two (2) consecutive months, or for a total of three (3) months in any period of twelve consecutive months; or (i) repetition of any failure to observe or perform any of Ihe Lease cDvenanls, lerms or conditions more than three (3) limes, In Iha aggregale, in any period of Iwelve (12) conseculive monlhs; or (j) any other failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth In this Lease where said failure continues for a period of twenty (20) days a~er wnllen notice thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within twenty (20) days and Tenant shall have commenced to cure said failure wllhln Iwenly (20) days and continues dlligenlly to pursue Ihe curing of the same until compleled): or (k) the commencement of levy, execution, or attachment proceedings against Tenant or any guarantor of Tenant or a substantial portion of Tenant's or guarantor's assets: the commencement of levy, execution, attachment or other process of law upon, on or against the estate created in Tenant hereby; the application for or the appointment of a liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or any guarantor of Tenant or for all or any substantial part of the property of Tenant or any such guarantor (and such appointment continues for a period of thirty (30) days); the insolvency of Tenant or any guarantor of Tenant in bankruptcy or eqUity sense; any assignment by Tenant or any guarantor of Tenant for the benefit of creditors; or (I) the commencement of a case by or against Tenant or any guarantor of Tenant. under any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by the Tenant or any guarantor of Tenant to request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or federal, and in no event shall the Premises or Tenant's interest in this Lease become an asset in any such proceedings. Section 16,02: LANOLORD'S REMEDIES, (a) Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist upon strict performance of any covenant. term or condition of this Lease or to exercise any right or remedy it has herein shall not be deemed a waiver or relinquishment for the future of such performance, right or remedy, In addition to any and all other rights or remedies of Landlord in this Lease or at law or in equity provided, Landlord shall have the following rights and remedies if there shall occur any Event of Default: (i) at Landlord's option, the whole balance of Rent, and all other sums payable hereunder by Tenant, for the entire balance of the Term, or any part of such Rent and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the terms of the Lease said balance of Rent and other sums were on the date of the exercise of such option payable in advance; and/or (ii) to terminate this Lease, and to re-enter the Premises and take possession thereof and to remove all persons and contents therefrom, and Tenant shall have no further claim or right hereunder; andlor (iii) to bring suit for the collection of Rent and for damages (including without limitation reasonable attorney's fees and the costs of repairing and reletting the Premises) without entering into possession of the Premises or terminating this Lease; and/or (iv) to retake possession of the Premises from Tenant by summary proceedings or otherwise, with or without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs as landlord may deem necessary or advisable and may relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's option be less than or exceed the period which othernise would have constituted the balance of the Term and at such rent or rents and upon such other terms and conditions as in Landlord's sole discretion may seem advisable and to such person or persons as may in Landlord's discretion seem best; and whether or not the Premises are relet, Tenant shall be liable for any loss of Rent and other sums for such period as would be the balance of the Term of this Lease and any extensions or renewals thereof plus the cost and expenses of reletting and of redecorating,. remodeling or making repairs and alterations to the Premises for the purpose of reletting, the amount of such liability to be computed monthly and to be paid by Tenant 1.0 Landlord from time to time upon demand. Landlord shall in no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, failure to relet the. Premises or failure to collect the rent from any reletting, Tenant shall not be entitled to any rents or other sums received by Landlord in excess of the Rents and other sums provided for in this Lease, Tenant agrees that Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time and Ihat no suit or recovery of any portion due Landlord hereunder shall be any defense to any subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord. Notwithstanding any reletting without termination, Landlord may at any time hereafter elect to terminate this Lease for Tenant's previous breach; andlor (v) commencement of any actions by Landlord for Rent and damages shall not be construed as an election to terminate this Lease and shall not absoive or discharge Tenant from any of its obligations or liabilities for the remainder of the Term; and/or 23 (vi) to enter the Premises and wIthout further demand or notice proceed !o dIstress and sale of the goods, chattels, personal property and other contents Ihere found and 10 levy the Renl, and Tenant shall pay all costs and officers' commissions, including watchmen's wages and sums chargeable by Landlord, and further including charges which Landlord may impose by statute as commissions to the consldble or other person making the levy, and In such cases aU costs, officers' commissions and other charges shalllmmedlalely attach and become part of the claim of Landlord for Renl, and any lender of Rent without said costs, commissions and charges made, after the issuallce of a warrant of distress, shall not be sufficient to satisfy Ihe claim of Landlord: and/or (vii) in the event of any re-entry, landlord shall have the right but not the obligation 10 remove any personal property from the Premises and either treat such property as abandoned, or at Landlord's optIon, place the same in storage at a public warehouse at the sole cost, expense and risk of the Tenant. (b) Confession of Judamont . Ront. Tenant covenants and agrees that if there is an Event of Default, then Landlord may, without limitation, cause judgments for money to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (i) Tenant hereby Irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) In any and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be paid to Landlord by Tenant to appear for Tenant, and assess damages and confess or otherwise enter judgment against Tenant, for all or any part of the Rent andlor other amounts to be paid to Landtord by Tenant Including, withoutlimitallon, sums under Section 16,02(a), together with interest, costs and an attorneys' commission of five percent (5%) of the full amount of such Renl, amounts and sums, and thereupon writs of execution as well as attachment may forthwith issue and be served, without any prior notIce, writ or proceeding whatsoever, except as may otherwise be required by apptlcable law; (il) the warranl of attorney herein granted shall not be exhausted by one or more exercises thereof but successive actIons may be commenced and successive judgments may be confessed or othel"Nise entered against Tenant from time to time as often as any of the Rent andlor other amounts and sums shall fall or be due or be in arrears, and this warrant of attorney may be exercised after the termination or expiration of the Term andlor during or after any extensions of the Term or renewals of this Lease; and (Hi) the provisions of Section 16.02(d) are incorporated herein by this reference thereto. (c) Confession of Judament . Possession. Tenant covenants and agrees that if there is an Event of Default or this lease is terminated or the Term or any extensions or renewals thereof is terminated or the Term or any extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section 16.02(b), landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (i) Tenant hereby irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record andlor landlord (as well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to appear for Tenant and confess or othel"Nise enter judgment in ejectment for possession of the Premises against Tenant and all persons claiming directly or indirectly by, through or under Tenant, and thereupon writ of possession may forthwith issue and be served, without any prior notice, writ or proceeding whatsoever, except as may otherwise be required by applicable law; (Ii) if, for any reason after the foregoing action or actions shall have been commenced, it shall be determined that possession of the Premises should remain in or be restored to Tenant, Landlord shall have the right to commence one or more further actions as hereinbefore set forth to recover possession of the Premises including, without limitation, appearing for Tenant and confessing or otherwise entering judgment for possession of the Premises as hereinbefore set forth; and (iii) the provisions of Section 16.02{d) are incorporated herein by this reference thereto. (d) In any action or proceeding described In Section 16,02(b) and/or Section 16,02(c), or In connection therewith, if a copy of this Lease is therein verified by Landlord or somaone acting for Landlord to be a true and correct copy ot this Lease (and such copy shall be conclusively presumed to be true and correct by virtue ot such verification), then it shall not be necessary to file the original of this Lease, any statute, rule of court of law, custom or practice to the contrary notvJithstanding, Tenant hereby releases to landlord, anyone acting for Landlord and all attorneys who may appear for Tenant all errors in procedure regarding the entry of judgment or judgments by confession or othel"Nise by virtue at the warrants of attorney contained in this Lease, and aflliability therefor. The right to enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce aU of the other provisions of this Lease may be exercised by any assignee of landlord's right, title and interest in this lease in such assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding. (e) Tenant expressly waives: (i) The benefit of all laws, now or hereinafter in force, exempting any goods in the Premises or elsewhere from distraint, levy or sale in any legal proceedings laken by Landlord to enforce any rights under this Lease. (ii) The benefit of all laws now made or which may hereafter be made regarding any limitation as to the goods upon which, or the lime within which, distress is to be made after the removal of goods, and Tenant further relieves Landlord of the obligation of proving or identifying such goods: It being the purpose and intent of this provision that all goods of Tenant whether upon the Premises or not, shall be liable to distress for rent. (iii) The right to issue a writ of replevin for the recovery of any goods seized under a distress for Rent or levy upon an execution for Rent. damages or otherwise. (iv) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this lease and any right to have the same appraised, The Prothonotary or Clerk of Court is hereby authorized and empowered by Tenant at landlord's instance to enter a writ of execution or other' process upon Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of execution or other process. (v) All rights under the Landlord and Tenant Act of 1951, and all supplements and amendments thereto, hereby authorizing the sale of any goods distrained for rent at any time after seven (7) days from said distraint without any appraisement and condemnation thereof. (vi) The right to three (3) months and/or fifteen (15) or thirty (30) days' notice required under certain circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of summary proceedings or an action for possession or to the termination :::>f this Lease or any retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in this lease shall be sufficient in any such case. 24 Soctlon 16,03: OAMAGES UPON TERMINATION, (a) If Landlord elects to terminate this Leaso under ItlO provisions of Section 1602 above, Landlord may recover from Tenant damages compuled in accordanco with the followmg formulll in addition 10 jts other remedlos: (,) Iho worth at the lime of judgment of any unpaid Rent wh'ch has been earned allhe time of such termination; plus (Ii) Ihe worth al the lime of judgment of Ihe amounl by which Ihe unpaid Rent wh'Ch would have been earned after terminaliorl untlllhe lime of judgment exceeds the amount of SUCh rental loss Tenant proves could have been reasonably avoided: plus (Iii) Ihe worth allhe lime of judgmenl of Ihe amounl (as dlscounled al the rale of seven percenl (7%) per annum) by which Ihe unpaid Renl for Ihe balance of the Term after Ihe lime of judgment exceeds Ihe amount of such renlal loss that Tenant proves could have been reasonably avoided; plus (iv) any other amount necessary to compensate landlord for all the detriment proximately caused by Tenant's failure 10 perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom including without limitallon the cost of repairing the Premises and reasonable attorney's fees; plus (v) at Landlord's electIon, such other amounts in addition to or in lieu of the foregoing as may be permilled from lime 10 time by applicable slate law, Damages shall be due and payable from the date of lerminalion, As used In this Section, Ihe phrase "worth allhe lime of judgment" Is computed by adding to the past Rent due interest al the Default Rale, (b) For Iho purposes of calculallng Ihe slims due by Tenanl pursuant 10 Seclion 16,02 and Seclion 16,03, Ihe Percenlage Renl for the balance of the Term shall be deemed 10 be that amount per annum which Is the highest annual Percenlage Rent Iherelofore payable by Tenant pursuant to this Lease, provided that If the default occurs less Ihan one year from the Required Opening Oale, such Percenlage Rent per annum shall be deemed 10 be an amount equal to ,25 limes Ihe Minimum Rent per Year, For the purposes of computing the sums due by Tenant pursuant to Section 16,02 and Section 16.03, the amounts of AdditionalRentwhlch would have been payable per Year pursuant to this Lease shall be such amounts aswere or would have been payable (wilhout the benefit of any abatemenl to which Tenant may have been entilled) for the full calendar year next preceding the calendar year in which the default occurred, increasing annually on the first day of each year after such calendar year at the rate of seven percent (7%) per annum compounded. As used in this Section 16, the "Term" shall Include the term of this Lease and any renewals or extensions thereof to which Tenant shall have become bound prior to the Event of Default. The "Default Rate" means that rale of interest which is three percent (3%) over the announced pnme rate of the bank selected by Landlord, Section 16,04: LANDLORO'S SELF.HELP, In addition to Landlord's rights to self. help set forth elsewhere in this Lease, if Tenant at any lime fails to perform any of its obligations under this lease in a manner reasonably satisfactory to Landlord, landlord shall have the right, but not the obligation, upon giving Tenant at least three (3) days prior written notice of its election to do so (in the event of any emergency no prior notice shall be required) to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform such obligations. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent, forthwith, upon demand therefor, with interest thereon from the date Landlord performs such work at the Default Rate. The performance by landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom. ARTICLE 17: LIABILITY OF LANDLORD Section 17,01: LANOLORO'S DEFAULT, Except as otherwise provided in this lease, Landlord shall be in default under this lease if landlord fails to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall have commenced to cure said failure Within said Ihirty (30) days and conllnues diligently to pursue the curing of the same), If Landlord shall be In defaull under this lease and, if, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such jUdgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levied thereon against the right, tille and interest of Landlord in the Shopping Center as the same may then be encumbered and Landlord shall not be liable for any deficiency. In no .event shall Tenant have the right to levy execution against any property of landlord other than Landlord's right, tille and interest in the Shopping Center as hereinbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this Lease, Section 17,02: TRANSFER OF LANDLORO'S INTEREST, In the event oflhe sale or other transfer of Landlord's right, lille and interest in the Premises or the ShoppIng Center (except in the case of a sale-leaseback financing transaction in which Landlord is the lessee), Landlord shall transfer.and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by Landlord pursuant to Seclion 2,02 of Ihls Lease, and Landlord thereupon and without further act by either party herelo shall be released from all liability and obligations hereunder derived from this Lease arising out of any act. occurrence or omission relating to, the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant shall have no right te terminat~ this lease nor to abate Renlnor to deduct from nor set-off nor counterclaim against Rent because of any sale or transfer (including without limitation any sale.leaseback) by Landlord or ils grantees, successors or assigns, Neither Landlord's mortgagee (o( its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant for the return of Tenant's Security Deposit unless . and until landlord actually delivers the Security Deposit to such mortgagee or purchaser or their designee, 25 be an unlawrul delalner and all such parties shall be subject 10 immediate ouster and removal, and (a) Tenant shall pay upon demand to landlord for any period when Tenanl shall hold the Premises aller the Term has terminated or expired, as Iiquidaled renl for such period, a sum equal 10 all Percenlage Rent and Additional Rent provided for in Ihls lease plus an amount computed at the rale of double Ihe Minimum Renl ror such period, and (b) Tenanl shall Indemnify and hold harmless landlo'd from aU loss, cost, expense and liability whatsoever resulting from suCh holding over, including. without limiting the generality of the foregoing, any claims made by any succeeding tenant based on such holding over, ARTICLE 22: CONDEMNATION Section 22,01: All OF PREMISES TAKEN, If the whole of the Premises shall be taken or condemned eIther permanently or temporarily for any public or quasi. public use or purpose by any competent authority in appropriation proceedings or by any right of eminent domain or by agreement or conveyance in lieu thereof (each being hereinafter referred to as "Condemnation"), this Lease shall terminate as of the day possession shall be taken by such authority, and Tenanl shall pay Rent and perform all of its other obligations under Ihls lease up to Ihal date wilh a proportionate rerund by landlord of any Rent as shall have been paid In advance for a period subsequenllo the date or the taking of possession, Section 22,02: lESS THAN All OF PREMISES TAKEN, U iess than all bul more than twenly.five percent (25%) of the GlA in the Premises is laken by Condemnalion, or If (regardless of the percentage of the GLA in the Premises which is taken) the remainder of the Premises cannot be used for the carrying on of Tenant's business, then in either event landlord or Tenant shall each have the right to terminate this lease upon notice in writing to the other party within ninety (90) days after possession is laken by such Condemnation, If this lease is so terminated, it shall terminale as of the day possession shall be taken by such authority, and Tenant shall pay Rent and perform aU of its obligations under this lease up to that date with a proportionate refund by Landlord of any Rent as may have been paid in advance for a period subsequent to the date of the taking of possession. If this Lease is not so terminated, it shall terminate only with respect to the parts of the Premises so taken as of the day of possession shall be taken by such 'authority, and Tenant shall pay Rent up to that day with a proportionate refund by Landlord of any Rent as may have been paid for a period subsequent 10 the date of such taking and, thereafter, the Rent and the applicable Break Point shall be reduced In direct proportion to the amount of GLA of the Premises taken and Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible): provided that Landlord shall not be required to expend more on such restoration than an amount equal 10 the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in connection with such award), Section 22.03: SHOPPING CENTER TAKEN. If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment; the ,remainder unsuitable for use as an enc:osed mall shopping center, landlord shall have the right to terminate this lease upon notice In writing to Tenant within one hundred twenty (120) days after possession is taken by such Condemnation, If Landlord so terminates this Lease, it shall terminate as of the day poss,ession is taken by the condemning authority, and Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proportionate refund by landlord of any Rent as may have been paid in advance for a period subsequent to such possession. Section 22,04: OWNERSHIP OF AWARO, As between Landlord and Tenant. all damages for any Condemnation of aU or any part of Shopping without limitation, all damages as compensation for diminution in value of the leasehold, reversion and leasehold improvements, shall belong 10 the Landlord without any deduction therefrom for any present or Tenant, and Tenant hereby assigns to Landlord all its right, title and interest to any such award. . Although all event of any Condemnation are to belong to the Landlord, whether such damages are awarded as compensation in value of the leasehold, reversion or fee of the Premises, or Tenant's leasehold improvements, Tenant to claim and recover from the condemning authonty, but not from Landlord, such compensation as may be or recoverable by Tenant in Tenant's own right for or on account of any cost or expense which Tenant might Tenant's merchandise, furniture and fixtures, provided such compensation does not in any way diminish otherwise available to landlord. ARTICLE 23: MISCELLANEOUS Section 23,01: INTERPRETATION, (a) The captions, table of contents and index of defined terms appearing in this lease are inserted only as a matter of convenience and in no way amplify, define, limit, construe, or describe the scope or intent of such Sections of this lease nor in any way affect this Lease, (b) If more than one person or corporation is named as Landlord or Tenant in this Lease and executes the same as such, or becomes Landlord or Tenant, then and in such event, the words "Landlord" or "Tenant" wherever used in this Lease are intended to refer to all such persons or corporations, and the liability of such perso~s or corporations for compliance with and performance of all the terms, covenants and provisions of this Lease shall be joint and several., ' (c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural. 27 Cd) The partlos herolo ngrOQ that all the proYISlons 01 Ihlsloaso 3ro to be construed as covenants and agreements as though tho words Importing SUCh covenants Dnd agreements wero used in each separate provIsion hereof. Furthermore, each covenant. Jgroomont, obhoallon ond othor prOVISIon contained In this lease IS. and shall be deemed and construed as a separate and independent coyonar1t of the party bound by, undertaking or make Ihe same, and not dependent on any other provision of thiS Lease unless exprossly 110 prOVIded (e) Allhough Iho proyu;/ons 01 thIS lease woro drawn by landlord, this lease shall not be construed for or against Landlord or Tonant, but this loaso ~hatl bo IntmprOled In accordance WIth the general tenor of the language in an effort to reach tho 1Olonded rusult Socllon 23.02: RELATlONSIUP OF PARTIES. Nothing herOIn conlained shall be doemed or construed by the parties hereto, or by any third party, as creating the rolallonshlp of principal end egonl or of partnership or of joint venture between the parties hereto, it being understood and agreed that nOllhor tho mothod of computatIon of Percentage Rent, nor any other provision contained herein, nor any acts of tho par110s horo/n, shall bo doemed to cruata any relationship bel'Neen the parties hereto ather than the relationship of landlord and lenanl nor Couse landlord 10 bo rosponslble in any way for acts, debts or obligatlvlls of Tenant. Socllon 23,03: NOTICES, Any nOhco, demand, roquest. approval, consent or other instrument which may be or is required to be given under this Loase I'lall bo In Writing, and, shall be deomed to have been given (a) when mailed by United Stales registered or certified mall relurn fRColrt requesled, postago prepaid and received or refused by the addressee, or (b) when sent by courier guaranlVlng oyernlght dellYory, addressed to landlord or Tenant at the respective addresses set forth in the Fundamental Lease Provlalons and/or such athor address or addresses as either party may designate by notice to the other in accordance with Ihls Socllon and received or rerused by the addressee. Any notice by the landlord may be given on its behalf by Agent or by an "Ilorney tor landlord or Agont Any notice properly sent to Tenant shall be deemed effective whether or not a copy 15 senllo lho addross desjgnalod in Iho Fundamental lease Provisions to receive a copy of such notice. Socllon 23,04: SUCCESSORS, TtllS leaso and the covenants and condItions herein contained shall inure to the be:1efil of and be binding upon (subJoctlo Arllcle 17) landlord, Its successors and assigns. and shall be binding upon Tenant, its heirs; successors and assIgns and shan inure 10 tho benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has been consented 10 by landlord In Writing, Nothing in this Section 23.04 shall be deemed to require landlord to give any such con.onl All of Tonont's obllgallons during tho Torm pursuant to Section 4,05, 4,06, 4,07, 5.01, 5,02, 7,03, 8,03, 11,03 and 23 17 sholl survive the expiration or earlier termination of this lease. Soctlon 23,05: BROKER'S COMMISSION, Tenant Wilrrants that, except for Agent and. if applicable, The Rubin Organization, Inc., it has dealt with no broker in conneclion with this lease, and agrees to and shall defend, indemnify and save Landlord harmless from all claims, actions, damages. costs and expenses and liability whalsoever, Including reasonable attorneys' (ees, that may arise from any claim by or through Tenant for a commission, finder's or like fee in connection with this lease. landlord sf"lall pay the fee or commission duo Agont and The Rubin Organization, Inc. in connection with this lease. Socllon 23,06: UNAVOIOABLE OELAYS, In tho event that either pnrty hereto shall be delayed or hindered in or prevented from the pl... iormance, of any act reqUIred horeunder by reason of strikes, lockouls, inability to procure labor or materials, failure of power, restrictive goyornmontallaws or rogulations, riots, insurrection. war, fire or other casualty or other reason of a similar or dissimilar nature boyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, Ihon porformanco of such acl, bul not Tonant's obligallon to pay Rent, shail be oxcused for the period of the delay and the porlod for tho performance of any such act shall be extended for a period equivalent to the period of such delay. During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excuse Tenant from completing construction of the Promises within Tenant's Construction Period unless Tenant gives written notice of the delaying event to Londlord wllhln ton (10) days of Ihe occurronco of such delaying event. Such wrltton nolico shail specify the nalure of tho delaying ovont and tho number of days at delay claimed to result therefrom. Tenant's Construction Period shall be extended Jor 0 ponod oqulvolont 10 Iho porlod 01 aclual delay, After Ihe Rent Commoncemont Date the provisions oJ this Section 23,06 sholl not excuse Tenont from lhe prompt payment of Rent and all other sums due by Tenant under this lease and such delay shall not oxtend tho Term, Delays or failures to perform resulting from lack of funds or the unavailability of a particular conlractor or porsonnel shall not be deemed delays beyond the reasonable control of a party. Socllon 23,07: SEVERABILITY. It Is Iho Intontion or tho parties hereto that if any provision of this lease is capable of l'No constructions, one of which would rondor lho provision Invalid and the other of which would render the provision valid, then the provision shall have the meanIng which renders it valid. If any term or provision, or any portion thereof, of this Lease, or the application thereof to any porson or circumstances shall, 10 any extent, be invalid or unenforceable, Ihe remainder of this lease, or the application of . such term Or provIsion to the persons or circumstances other than those as to which it is held invalid or unenforceable, shall nol bo affected thereby, and each term and provision of this Lease shall be valid and be enforced 10 the fullest extent permitted by law ' Soctlon 23.06: TIME OF ESSENCE, Tlmo is of the essence with respect to the performance of the respective obligations of Landlord and Tenant.set forth 28 in this Lease, Section 23.09: OTHER TENANTS/SUBSTITUTE PREMISES. (aJ Landlord reserves the absolute fight 10 effecl such olher tenancies ,n Ihe Shopp,ng Cenler as Landlord shall determine in the exercise of its sole business judgment. Tenant hereby acknowledges that (i) this tease conlains no restrictive covenants or exclusives in favor of Tenant; (ii) this Lease shall not be deemed or interpreted 10 contain, by implication or otherNise. any warranty, representation or agreement on the part of Landlord thai any department store or regional or national chain store or any other merchant shall open for busmess or occupy or continue to occupy any premises in or adjoining the Shopping Cenler during the Term or any part thereof or that Tenant shall generate a cettatn amount of Gross Sales or that any reimbursable amount payable by Tenant shall be any specific amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not rely 109 on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as condition of this Lease or as a covenant by Landlord. (b) During the Term or any exlensions or renewals thereof, Landlord, at Tenant's expense, and upon at least sixty (60) days' prior written notice ("Landlord's Nollce"), may require Tenant to relocale from tile Premises 10 another retail space designated by Landlord ("Relocated Premises"), which shall con lain approximalely the same GLA as Ihe Premises, in order 10 permit Landlord to: (I) consolidate the Premises with olher adjoining space leased or 10 be leased to anolher aclual or prospective tenant in Landlord's Building, andlor (ii) recapture the Premises in connection with any re-merchandising, reconfiguralion andlor expansion of Landlord's Building or the Shopping Center. Landlord's Notice shall specify the location of Ihe Relocated Premises and Ihe date by which Landlord will require that Tenanl complete such relocation, If Landlord sends Landlord's Notice, Tenant may, wilhln fifteen (15) days from the date of Landlord's Notice, send a written notice ("Tenant's Notice") 10 Landlord electing not to relocate 10 Ihe Relocated Premises and in lieu thereof terminating the Lease as of the day specified in Landlord's Notice for the completion of such relocation by Tenant, in which event this Lease will expire and terminate on such date as though the date set forth in Landlord's Notice was fixed as the expiration date hereof, and Landlord shall have no liability 10 Tenant as a result of such cancellation. If Tenant fails 10 deliver Tenant's Notice within fifteen (15) days after the date of landlord's Notice" Tenant shall be obligated to relocate in accordance with landlord's Notice and commence doing business in the Relocated Premises not later than the date specified in landlord's Notice. Prior to performing any work in the Relocated Premises, Tenant shall submit 10 Landlord for approval Design Drawings in accordance with the provisions specified in 9 2.03 and no such work shall commence unlll the same have been approved by Landlord. landlord shall pay the reasonable expenses of moving Tenant's inventory, existing furniture, existing trade fixtures and equipment from the Premises to the Relocated Premises, such payment to be mc:de within thirty (30) days after Tenant opens for business in the Relocated Premises and delivers to landlord evidence reasonably acceptable to Landlord specifying such costs and expenses. Not later than the date specified in landlord's Notice for the completion of such relocation, and whether or not Tenant shall have commenced business in the Relocated Premises. Tenant shall vacate the Premises hereby demised and peaceably surrender possession thereof to Landlord in accordance with the provisions hereof. Commencing as of the last day by which the relocation to the Relocated Premises must be accomplished, or if sooner, the date Tenant commences business in the Relocated Premises, all of Tenant's right, title and interest in and to the Premises originally demised by this lease shall cease and terminate and from and after such date, the Relocated Premises shall be deemed demised hereunder in lieu of the premises originally demised hereby. Occupancy of the Relocated Premises shall be under and pursuant to the lerms of this lease, except that the Minimum Rent and Break Point shall automatically be amended 10 bear the same relationship to the Minimum Rent and the Break Point presently set forth in the Lease as the GlA of the Relocated Premises bears to Ihe GLA of the Premises. At the request of landlord. the parties shall enter into an amendment of this Lease which shall confirm the GLA, new Minimum Rent and new Break Point of the Relocated Premises. Section 23,10: APPLICABLE LAW, The raws oflhe state in which Landlord's Building IS located shall gover:1 the validity, performance and enforcement of this lease. If either party institutes legal suit or action for enforcement of any obligation contained herein, it is agreed that venue for such suit or action shall be in the state in which the Premises are located. Section 23,11: WAIVER, (a) The waiver by Landlord of any term. covenant. agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other terms, covenant. agreement or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agreement or condition 'of this lease, other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Renl. No covenant, term, agreement or condition of this Lease shall be deemed to have been waived by landlord, unless such waiver be in writing and executed by Landlord. (b) No waiver of any covenant, term, agreement or condition of this lease or legal right or remedy shall be implied by the failure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord in respect to one or more tenants or occupants of landlord's Building or any other part of the Shopping Center shall constitute a waiver in favor of any other tenant. Landlord's consent to, or approval of, any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent 10 or approval of any subsequent similar act' by Tenant. No consent or approval by Landlord shall operate to change any condition, requirement or other provision of this. Lease on any occasion unl~ss made in writing and executed by a general partner (or executive officer) of Landlord. Secllon 23,12: ACCORD ANO SATISFACTION, No payment by Tenant. or receipt by Landlord of a lesser amount than the Rent herein stipulated shalf be deemed to be other than on account of the earliest stipulated Rent nor shall any endorsement or statement on any check or any letter accompanying any such check or payment as Rent or the like be deemed an accord and satisfaction, and landlord may accept such check or paymenl without prejudice to landlord's rights and remedies to recover the balance of such Rent or pursue any other right and remedy provided for in this Lease or available at law or in equity. If Landlord shall direct Tenant to pay Rent 29 10 a "loCkboK" or oUlOr deposItory whereby checks Issued in payment of Rent are InItially cashed or deposited by a person or onhty omor man Landlord (albOlt on Landlord'. authollly) then, lor any and all purposes under Ihis Lease: (a) Landlord shall not bo doomod 10 havo accopted such paymalll until n'nely (90) days after the dale on which Landlord shall havo actually roco,vod luch lunds, (b) Landlord shall bo doemod to havo accopled such payment il (and only ,n w,lhin said ninety (90) day pOllod, Landlord Iholl not hovo rolundad (or ollempled to relund) such payment 10 Tenanl and (c) Landlord shall not be bound by any endorlomont or statement on any chock or any lelter accompanYing any check or payment and no such endorsement, IInleman\ or lellor Iholl bo daomod on accord and sallS'achon, Landlord or Landlord's bank may accept such check or paymenl without projudico to Landlord's right to recover tho balance ot such rent or pursue any other remedy provided In this Laolo. at law or In equity. Nothing contained 10 the Immediately preceding sentence shall be construed to place Tenant in defoult of Tenonl's obligation 10 pay Ront if and for so long as Tenant shall timely pay the Rent required pursuant to this Lease In tho monnor dosignated by Landlord 80CtlO1l23,13: CORPORATE TENANTS. In Iho oventthe Tenanl hereunder is a corporal,on,lhe persons execulln9 this Lease on behal' 01 the Tenant hereby covenant and warranl that: the Tenant Is a duly constituted corporation qualified to do business in the state in which Landlord's Ouitdlno is 10clItod; all Tenant's franchise, corporate and other lienable taxes have been paid to date; all future forms, reports, leol and olher documenls necessary for Tenanlto comply with applicable laws will be filed by Tenanl when due; and such porsons ore duly outhorized by tho governing body of SUCh corporation to execute and deliver this Lease (including the warrant andlor powor 01 allorney provisions conlalned in secllons 16 02, 1603 and 19,02) on behal' of Ihe corporation, soctlon 23,14: L1QUIOATEO OAMAGEs; ATTORNEY'S FEES, 'Mten liquidated damages are speCified anywhere in this Lease, it is understood and agreed that said sum is to be paid to Landlord because Landlord's actual damages will be dl.'flcult or imposS,ible to ascertain with accuracy. The obligation of Tenant set forth herein to pay Landlord's attorneys' fees In conneclton With Tenant's default shall include the obligation of Tenant to pay all reasonable attorneys' fees incurred by landlord before. during and after trial and on appeaL soctlon 23,15: RECOROING, ThiS Lease shall not be recorded; however Landlord shall have the right to record a short form or memorandum thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall execute same. soctlon 23,16: AGENT OF LANOLORO, Agent and, if applicable, The Rubin Organization, Inc" has acted ,as an agent of landlord in connection with the execution of this Lease and shall not in any event be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms or conditions of thls Lease or for any action or proceeding that may be taken by Landlord against Tenant. or by Tenant against landlord. Any waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect to, and as a waiver of any liability of, Agent and The Rubin Organization, Inc" soclion 23,17: HAZAROOUs MATERIAL, (a) As used herein the term "hazardous material" means any flammable, explosive, medical, human or animal tissues or substances, hazardous or toxic substance, material or waste (including, without limitation, asbestos and chlaronuorocarbons) which has been, or in the future is. determined by any state, federal or local governmental authority or any law, ordinance, statute, governmental rule or regulation to be capable of posing a risk of injury to health, safety or property andlor the use, storage andlor disposal of which is regulated by any governmental authority, including, without limitation, all of those materials and substances designated as hazardous or toxic by the local government having jurisdiction over the Premises, the U.S. Environmental Protection Agency, the Consumer Products Safety Commission, the Food and Drug Administration or any other governmental agency now or hereafter authorized 10 regulate materials and substance. Tenant shall not cause or permit any hazardous material to be installed in the Premises as a part of Tenant's Work or otherwise brought upon, used, kept, stored or disposed of in or about the Premises or the Shopping Center by Tenant, its agents, employees, contractors or Invitees. Notwithstanding the foregoing, Tenant may handle, store, use and dispose of products containing small quantities of hazardous materials (such as aerosol cans containing Insecticides, toner for copiers, paints, varnishes and cleaning supplies) of insignificant quantities stored in sealed containers and used in accordance with manufacturers' requirements, (b) If Ihe Premises, any equipment (Includin9, wllhoutlimltatlon, HVAC equipment), trade fixtures or other mechanical apparatus therein contain any hazardous materials installed by Tenant, its agents, employees, contractors or invitees, Landlord, at ils election, shall have the righllo (I) cause Tenanlto remove and properly dispose of same, all at Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by Landlord and its professional consultants, or (ii) perform the removal and disposal thereof itself, in which event Tenant shall reimburse Landlord, on demand, for the cost incurred by landlord in doing so (including Landlord's cost of professional consultants) and securing the certifications referred to below, (c) If Landlord requires Tenant to remove any hazardous material installed by Tenant, its agents, employees, contractors or invilees, Tenant shall retain the services of an environmental engineer and a contractor, both of whom must be previously approved in wnting by Landlord. Tenant shall submit 10 Landlord for approval the insurance certificates of Tenant's environmental engineer and contractor, a written removal plan and detailed plans and specifications which shall disclose, without limitation, the dates on which such work is to be performed and the steps to be taken to protect the public, all public areas in the Shopping Center, and tne HVAC, water, sprinkler, sanitary and storm systems from contamination during the removal and disposal process. No work disclosed in the removal plan shall be commenced until Landlord has approved all aspects of such removal and disposal process ana Tenant shall only perform such work in strict accordance with the process as approved by Landlord. If required by landlord, Tenant shall close for business while such work is being performed and remain closed until the removal work has been completed in a manner satisfactory to Landlord. landlord reserves the right 30 to monitor the performance of such work from lime to lIme and, If landlord belIeves that such work is being done in a manner which permits hazardous matenal to escape from Ihe Promises or otherwise constllutes an unsafo condition, at Landlord's direcllon Tenanl shall immedialely cease work unl,l SUCh problem has been correcled 10 Landlord's salislaclion. Tenant shall replace any contaminated equipment or malerials removed from tho Premises with new equipment or material performing the same funcllOn, All work performed by or on behalf of Tenant shall be performed in accordance w,lh all applicable Governmenlal Requirements, including. withoullimltation. requirements reqUiring the keeping ot a duly executed manifest which documenls all sleps taken from Ihe lime Iha hazardous male"al was removed from the PremISes unl,l il was lawfully disposed 01 in a dump sile aulhorized 10 accept such hazardous male"al, Landlord shall not be responSible In any way by reason of the facllhat landlord has approved Tenant's environmental engineer, environmental contractor, the removal plan, the detailed plans and specifications or made suggestions. recommondalions or modifications 10 any of the foregoing. Tenant and its engineer and contractor shall disclose to landlord if anything suggested or recommended by landlord does not comply With the Governmental Requirements, and Tenant shall be solely liable for such compliance. (d) If Landlord elecls 10 perform Ihe removal of the hazardous male"al from Ihe Premises, Landlord shall so nolify Tenant of Landlord's anllclpated commencement dale of such work and, if required by Landlord, Tenant shall close for business nollater than such date and remain closed until notified by landlord to reopen whereupon Tenant shall promplly reopen for business, If Landlord performs such work it shall do so in compliance wilh all applicable Governmental Requiremenls, If directed 10 do so by Landlord, Tenant shall remove such of ils merchandise, personal property and trade fixtures as shall be required by Landlord for the complelion of such work or Landlord, ils contraclors and sub.conlraclors, may relocate the same within the Premises or elsewhere in the Shopping Center during the performance of such work; neither landlord. Agent, nor their contractors or subcontractors shall be liable to Tenant in any regard for any damage to or loss of such items or for any other acts occurring in the Premises during the performance of such work. (e) Tenanl shall comply wilh all applicable Governmenlal Requirements affecling Ihe Premises, the operation of Tenant's business at the Premises. and the use and removal of any substances therefrom, including, without limitation, hazardous materials installed by Tenant. its agents. employees. contractors or invitees. Such compliance shall include, inter alia. (i) Ihe filing by Tenant of all governmental applications and registrations for all substances used. stored. manufactured, generated or otherwise in the Premises; (ii) the obtaining of all licenses and permits with respect thereto; and (iii) the timely filing from time to time. as required. of all reports and other matters required to be filed with governmenlal authorities having jurisdiction. (f) Tenant shall protect. defend, indemnify and hold landlord harmless of, from and against all claims, actions, liens. demands, costs, damages, punitive damages. expenses. fines and judgments (including legal costs and attorneys fees) incurred by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this Section 23.17 andlor spills or other contamination of air. soil. or water by or resulting from any hazardous materials installed by Tenant, its agents, employees, contractors or invilees at or around the Premises or the Shopping Center or resulting from removal thereof, (g) Upon ten (10) days prior written requesl from Landlord, Tenant shall execute, acknowledge and deliver to Landlord a written statement in form satisfactory to landlord certifying (i) if true. that Tenant has not disposed of any oil. grease. toxic. or hazardous material. at the Premises or (ii) that any such substances used, processed or generated at the Premises have been disposed of properly in accordance with all applicable Governmental Requirements. If Tenant is unable to certify either of Ihe above, Tenant shall so notify Landlord and give Landlord the details resulting in Tenant's inability to so certify, (h) Tenant shall surrender the Premises to landlord upon the expiration or earlier termination of this Lease free of hazardous materials and in a condition which complies with all Governmental Requirements. recommendations of consultants hired by Landlord. and such other reasonable requirements as may be imposed by landlord. (i) This Section shall survive the expiration or sooner termination of this Lease. Section 23,18: FINALIZATION OF CHARGES, Tenant's failure to object to any statement, invoice or billing rendered by Landlord within a period of thirty (30) days after receipt thereof shall, at landlord's option, constitute Tenant's acquiescence with respect thereto and shall render such statement, invoice or billing a final and binding account stated between landlord and Tenant. Section 23,19: PRIOR LEASE, Oeleled Section 23,20: FINANCIAL INFORMATION, Tenanl shall at any lime and from lime to time within twenty (20) days of written request from landlord, deliver to landlord such financial information concerning Tenant and Tenant's business operations as may be requested by landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaser. Section 23,21 : NOTICE TO MORTGAGEE. If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant written notice of the existence of such lien. then Tenant shall. so long as such rnortgage is outstanding, be required to give to such lienholder the same notice and opportunity to correct any default as is required to be given to landlord under this Lease, but such notice of default may be given by Tenant 10 landlord and such lienholder concurrently: Section 23,22: WAIVER OF JURY TRIAL, landlord and Tenant hereby waive all right to a trial by jury in any litigation related to this lease including any 31 ,,-''-....._~':~:-"~,',;.:i.if EXHIBIT "B" GUARANTEE OF LEASE Oeleled F eleClrlcal underwfllor's certlflcato from an organization sallsfactory to landlorct All terms defined In any other par1 of Ihe lease are used horOln as defIned Iherem ThIS COMPLETION CERTIFICATE has been e,eculed as 0' Ihe dale '"sl above wnllen illA!il: John lee an IndiVIdual 8y' Witness C.2 SAMPLE HEATING/COOLING CALCULATION ASSUME: lEASED AREA = 2,500 Squa,e Feel TENANT MAKE.UP AIR = 3,500 CFM TENANT CFM = 2,600 CFM COST/YR SSF/YR A CAPITAL FACILITIES CHARGE 2,600 CFM at 51.00/CFM 5 2,60000 = 5112 6 ELECTRIC ENERGY CHARGE (Assume landlord's Cost is 6 Cenls/KWH) Excess CFM=Aclua12600 CFM minus aliowed CFM of 1/CFM per squa'e foot of GLA = 300 excess CFM 300 CFM x 14 KWH/CFM x 5 O,06/KWH = 5252,00 5 ,10 C MAINTENANCE CHARGE (Assume landlord Annual Cost = 5 56,000 and 160,000 CFM lolal) 556000 iBffi CFM = 33 cenls/CFMIYR 2600 CFM at 33 cenls/CFMIYR = 5 924 00 5 3,97600 037 51,59 SUB TOTAL 0, MAKE-UP AIR CHARGE 3500 CFM x 15 KWH/CFMx50,06/KWH = GRANO TOTAL 53150 57,12600 5126 52,65 5UMMARY Condilioned Air = 51,59/SFIYR Make,Up Air = 1 26/SFIYR TOTAL = 52,65/SFIYR 0-2 EXHIBIT "F" FAST FOOO CLUSTER This FAST FOOO CLUSTER TENANT EXHIBIT (the "FFC Exhibit") is annexed to and made a pa't of the Shopp,ng Cenler Lease (the "Lease") by and between CAMP HtLL SHOPPING CENTER ASSOCIATES, a Pennsylvan,a pa~nershlp, as Landlord. and JOHN LEE. an Individual, a~ Tenant for lhose Premises designated currenUv by Landlord as Tonant Slore Numcer L.5b (the "Premises") in the Camp Hili Shopp'ng Mall, Camp Hill, PA and is execuled of even dale With the said Lease, In the tivent a conflIct arises between the provIsIons of this FFC Exhibit and any other pM of the Lease. the provIsions of this FCC Exhibit shall modify and supersede the conflicting prOVISions of such other part of the Lease 10 the exlent necessary to eliminate such conflict but not further, All terms which are defined in any other part at the leasa shall have the same meaning when used herein. ARTICLE 1: THE FOOO COURT AREA Secllon 1,01: THE FOOD COURT AREA, The "Food Court Area" (sometimes referred to in this lease as the "Fast Food Clusler'" means and shall be the area speCifically designed for small restaurant opera lions situated in the Landlord's Building, including, Without limitation the indiVidual premises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area. Secllon 1,02: FOOO COURT SEATING AREA. The "Food Court Seating Area" means and shall be the portion of the Common Areas which is made available by Landlord for seating purposes and shall be for the non.exclusive use by customers and patrons of the Food Court Area. Landlord shall furnish and install equipment. noor covering, lighting fixtures, decorative and permanent fixtures, ceiling, tables, chaIrs. accessories and other property in the Food Court Seating Area. Landlord shall be the sole owner of said fixtures, equipment and property, and shall have the right to make changes from time to time in the size, shape or location or both, of the Food Court Sealing Area and in the number, type and style of any or all aspects of the facilities, equipment and other property therein Secllon 1,03: CHANGES BY LANOLORO. As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature and extent of the Food Court Area and of making such changes, rearrangements, additions, or reductions therein and thereto from time to time which in its opinion are deemed to be desirable and for the best interest of a significant number of the persons using the Food Court Area or which are made, pursuant to Section 1.05 of this Lease, as a result of any federal, state or local, environmental or other law, rule, regulation, guideline, judgment or order. Landlord shall not, however, change materially the dimensions of the Premises. ARTICLE 2: USE Section 2,01: USE, Tenant shall use the Premises solely for the preparation, sale and delivery of food 10 the public for "carry-out" or for consumption in the Food Court Seating Area. Tenant agrees to sell only lhose food items specifically enumerated in Section !!ll of the Fundamental Lease Provisions (lhose food items hereinafter sometimes referred to as Ihe "Menu") and to maintain the highest standards in quality, portions of servings, and preparation of such food items. Tenant agrees to offer for sale each of the enumerated food items on the Menu and any failure to sell any of the items on the Menu or any substitution for or addition to such Menu without Landlord's specific written approval shall be deemed an Event of Default pursuant to Section 1601 of this Lease; and, in addition 10 any other rights or remedies pursuant to this Lease, Landlord shall specifically have the right to terminate this Lease if Tenant violates thiS provision. Section 2,02: OtSPOSABLE PROOUCTS, For the purpose of serving food and beverages to the public, Tenant agrees to use only disposable paper or other equally degradable goods and utensils, including, but not limited to, cups, wrap materials, plates, trays, boats, straws, bags, napkins, spoons, forks, knives, stir slicks and the ilke (collectively the "Disposables"), Landlord shall have the right to develop a uniform design for all such Disposables as may be required in the operation of the Food Court Area. All Disposables shall bear the name and/or logo of Tenant, or the uniform design developed by Landlord, if any, Tenant agrees, in any event, to use only Disposables of lhe type, size, material and color approved by Landlord. Tenant shall not be required to purchase such Disposables from Landlord, but Landlord may, for the convenience of both parties, develop a local source of supply, Tenant shall at aU times have the right to develop its own source of supply for such Disposables, provided only that the Disposables meet the requirements stated herein. Section 2,03: EMPLOYEE ORESS ANO CONOUCT, Employees shall at all times be required to present a clean and well.groomed appearance and shall wear uniforms, the color and style of which are to be subject to Landlord's approval. Tenant may make such arrangement with Employees as it deems appropriate regarding the purchase and maintenance at standard uniforrns. However, Tenant shall require its standard uniform to be worn by all Employees at all times while on duty in the Premises. Landlord may, at any time, direct Tenant to require any Employees not so attired to immediately conform 10 the requirements or leave the Premisss, ARTICLE 3: FOOO COURT CAM SUM & FOOO COURT CAM CHARGE Soction 3,01: FOOO COURT CAM SUM, As a lenant of Ihe Food coun Area, Tenanl agrees to pay and shall pallo Landlord, commencing on the Renl Commencement Date and each and every month and as Additional Rent thereafter throughout the Term. Tenant's share. as hereinaller sel fMh, of the "Food coun CAM Sum", The lerm "Food Coun CAM Sum" means and shall be all sums incurred in a manner deemed by Landlord to be reasonable and appropriale and for Ihe best inleresls of the Shopping Center in connection with the operation and maintenance of the Food, Court Seatlng Area (as the same is reduced, expanded or otherwise altered from time to time) including, without limitation, the following' (a) the cost of operating, maintaining or repairing any HVAC equlpmont specifically installed 10 serve the Fast Food Soahng Area: (b) the cost of all insuranco specifically required for the operation of the Fast Food Seatlng Area (Including, without limitation. insurance against fire and other casualties, bodily injury, personal inJUry, property damage, product liability, sign insurance and any other insurance required 10 be carried by Landlord :or Ihe Fast Food Sealing Area; (c) the cost of maintenance, r~pair andlor replacement of Interior landscaping, decorating, Iighllng, lighting syslems, eleclrlcal systems, plumbing syslems, HVAC Syslem and any olher syslems serving Ihe Fast Food Seating Area; (d) the cost of Irash, rubbish and garQage removal service; (e) cost of sanilary conlrol; (n the cosl of malnlenance, repair and/or replacement of furnilure and fixtures; (g) Ihe cost of all supplies and equipmenl necessary properly to clean, operate or maintain Ihe Fast Food Sealing Area; (h) the cost of all personnel required by Landlord satisfactorily 10 supervise, implement. maintain or operate Jhe Fast Food Sealing Area in a high standard of cleanliness and efficiency: (I) the cost of any security personnel that may be required by Landlord specifically for the Fast Food Seating Area: ij) amonizallon of the furn,lure, fixtures and equlpmenl of the Fast Food Sealing Area: (k) the cost of any other item Dr personnel deemed by Landlord necessary to operate or maintain the Fast Food Seating Area in a first class manner; and (I) Landlord's supervisory charge In an amount equal 10 filleen percent (15%) ofthe total aggregale cosl of operating and maintaining the Fast Food Seating Area, including, without limItation, those things listed hereinabove. Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of certain items of the Food Court CAM Sum over such period of years as Landlord shall determine by amortizing them over such periods instead of incllJdmg such amounts entirely in the year in which expended or incurred, in which event. the annual amortization amount shall be deemed to be an expense incurred during each year of the amortization period, notwithstanding that such expenses may have been expended or incurred prior to the execution hereof. (a) Tenant shall pay 10 Landlord, as Additional Rent. Tenant's Food coun CAM Charge, Tenant shall pay Landlord, on the Rent Commencement Date and on the first day of each calendar month of the Term thereafter, amounts estimated by Landlord to be Tenant's monthly Food Court CAM Charge. Landlord may adjust any of said estimates at the end of any Year on the basis of Landlord's experience and reasonably anticipated costs. (b) Within ninety (90) days following the end of each Rent Year, Landlord shall furnish to Tenant a statement covering such Year just expired, certified as correct by an independent publiC accountant or an authorized representative of Landlord, showing the Food Court CAM Sum and the amount of Tenant's Food Court CAM Charge for such Rent Year and the payments made by Tenant therefor with respect to such Rent Year. If Tenant's aggregate monthly payments therefor with respect to such Rent Year are greater than Tenant's share, Tenant shall receive a credit for the excess against monthly payments next becoming due to Landlord; if said payments are less than said share, Tenant shall pay to Landlord the difference within len (10) days of demand by Landlord, If I !iTJ [:(, Ii' 1'\: It 'l.'~'...'...'. I ,Y I) <, 1"1 ,I 'I ,) j' ! ! Seclion 3,02: FOOO COURT CAM CHARGE. Tenant's share of the Food Court CAM Sum (Ihe "Food Court CAM Charge") shall per Year be Ihe product oblainlng by mulllplylng the Food coun CAM Sum for Ihal Year ty a fracllon, the numerator of which shall be the GLA of the PremISes and the denominator of which shall be the lolal GLA of Ihe Food coun Area (to wil, the total GLA of all Food coun Area tenanls only). Tenant understands and agrees that the CAM Sum set forth in Article 8 of this Lease does not include the Food Court CAM Sum and Tenant's obligallon to pay Ihe Food coun CAM Charge shall in no way reduce Tenant's obligalion 10 pay Tenant's CAM Charge as set fonh In Miele B of this Lease, Seclion 3,03: PAYMENT OF FOOO COURT CAM CHARGE, (c) After Landlord has furnished its annual statement to Tenant pursuant to Section 3 03(b) hereof, Landlord shall make its records relating 10 Tenant's Food Court CAM Charge for the immediately preceding Rent Year available for Tenant's inspection within ten (10) days after receiving a written request from Tenant to inspect same provided Tenant has previously paid Landlord Ihe Tenant's share of the Food coun CAM Sum, ,j :1 ~ . .....'.....:1).......'....'.'...'.'.............'... " ". ~ ;" c, ";:'. ! l~.' 1':', I ': " i~: ""~\~ll:, it ii".:. I.;, ~l(" } Iii {d) Tenant acknowledges and agrees that Tenant's Food Court CAM Charge is in addition to not only Tenant's CAM Charges but also Tenant's Utility Charges pursuant to Article 6 of this Lease, Tenant's Tax Charges pursuant to Article .Q of this Lease and all of the other charges set forth, without limitation, in Pace 1 of this Lease. F.2 IIII i: ~ ;'l ~(J z 'Oc III :t:I(J '" tT.l::x n Cl C/l... ~d~ g C/l1111 ;;J~ H~~ ,,~, >- ~~ ;; ! ~ I I111 .. J .~ fJ~ '. ~ If ~ II/II "f 8f,:;, .r' , If" , n 11III , or ~l. ;l> I ~ if lJI5 ;r'l~;!. t" ! ~> ;l> I ~ ~ (l :0 m ;l> I' " :tI ,p 10 , r -l i. ~ (l ~~ tll If ~ 0 'I"' '1 .!' 0 j ~ ~ , L..8 ~ t:ll " ~= 0 ;;' n w e w n I I/W ~ 1, ,r("f' /jW I ~ ~ . ~ 8 .',. , f~~ ,.. .' ....~n EXHIBIT G (") 1.0 (") C~ tP "1' s: '- ,04 c:: -r ..'On.: i'ii~ Q\(!..': r- .t.: _~J N :;:;2 -.zc UJ, 2; -J (5 ....... :~31 ~C) '"'" ~::Q ::;l: RN\ .-'- \ oC.-l.... r' 0 p(:;: ~ ~ ,-..) ~ .I'" "< _'.....~M......... ..' . ,.,," ,-:,,,,,~, .' CAMP HILL SHOPPING CENTER ASSOCIATES, IN TIlE COURT or COMMON PLEAS CUMI3ERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO, 98-4327 JOHN LEE D/I3/A TOKYO Defendant CIVIL ACTION - LAW COMPLAINI AND NOW, comes Plaintiff, Camp Hill Shopping Center Associates, by and through its counsel, the law firm of McNees, Wallace & Nurick, and files this Complaint pursuant to Pa, R, C.P. 2983 to conform the judgment confesscd in this action, and, in support of its Complaint avers as follows: 1. Plaintiff, Camp Hill Shopping Center Associates ("Plaintiff'), is a Pennsylvania corporation with its principal place of business located at Camp Hill Shopping Mall, South 32nd , Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2, Defendant, John Lee d/b/a Tokyo ("Defendant"), is an adult individual with a last known address 01'20 Water Road, Dillsburg, York County, Pennsylvania 17019, 3, On or about November 11, 1996, Defendant entered into a Lease Agreement with Plaintiff ("Lease") for its business known as Tokyo at the Camp Hill Shopping Center located at 3400 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011, Attached hereto as Exhibit "A" is a true and correct copy of the original Lease, 4, Defendant authorized Plaintiff to enter judgment by confession against it for recovery of rent or other charges under the Lease as more specifically set forth in Article XVI, Section 02(b), (page 24 of the Lease). 5, The Lease was duly executed by Defendant, who agreed to be legally bound by the terms of said Lease. 6, The Lease provides that Defendant shall pay monthly rent and Defendant's pro rata share of insurance, taxes and operating costs, as well as all other charges accruing under thc Lease or identified as additional rent on the tirst day of each calendar month during the term of the Lease, 7, Thc term of the Lease expires on December 31, 200 I. 8, Defendant vacatcd the premises prior to the expiration of the term of the Lease on March 28, 1998. 9. Tenant did not properly terminate Lease prior to vacating the premiscs. 10. Despite repeatcd, numerous requests for rent, Defendant has willfully failed to pay base rent, additional rent, late payment charges or any other charges payable to Plaintiff under the Lease for the subject premises, II. Defendant's failure to pay rcnt as per the terms of the Lease constitutes a material breach of the Lease, 12, The sum presently due and owing under the Lease is Fifty One Thousand Two Hundred Twenty Nine Dollars and Twenty Cents ($51,229,20), 13, On July 27, 1998, Plaintiff caused ajudgment by confession to be entered against Defendant in the amount of Fi fty One Thousand Two Hundred Twenty Nine Dollars and Twenty Cents ($51,229,20), plus interest at the statutory rate of six (6%) percent per annum from date of judgment, attorneys' fees in the amount of Two Thousand Five Hundred Sixty One Dollars and Forty-Six Cents ($2,561.46), and all costs of suit, in the Court of Common Pleas of Cumberland County, Pcnnsylvania at Docket No, 98-4327, -2- 14, The auaehed instrumcnt has not bccn assigncd, 15, Thc Judgmcnt is not being entered by confession against a natural person in connection with n consumer credit transaction, 16. Defendnnt is not subject to the protection of the provisions of the Solders and Sailors Civil RelicI' Act of 1940, as amended, 17, Plaintiff advised Defendant of his material brcaeh of thc Lease in a Icttcr datcd April 16, 1998 ("Notice"). 18, Section 16.02(i) ofthc Lease providcs that at Plaintiffs option "the whole balance of Rent, and all other sums payable hereundcr by Tenant, for the entirc balance of the Term, or any part of such Rent and other sums, shall be taken to be due and payable from Tenant and in arrears as if by the tenns oCthe Lease said balance of Rcnt and other sums were on the date of the exercise of such option payable in advance;", 19. The confession of judgment clause set forth in Article XVI of the Lease provides for recovery of amounts past due under the Lease, amounts due under Section 16.02, and an attorneys' commission of five percent (5%) of all charges, payments, costs and expenses reserved as rent or agreed to be paid by Defendant, together with costs of suit. 20, An attorneys' fee of five percent (5%) ofthc total amount of damages, together with costs of suit, is due by the terms of the authorization to confess judgment, amounting to the sum of Two Thousand Five Hundred Sixty One Dollars and Forty-six Cents ($2,56 I .46). 21, Defendant's failurc to pay base rent, additional rent, late charges and any other charges payable to Plaintiff under the Lease provides Plaintiff with the authority to file this Complaint. -3- VE~I.FICA l]O~ Thc undcrsigned, Kravco Company, Agcnt for Camp Hill Shopping Ccntcr Associatcs, vcrifics that thc statcmcnts madc in thc forcgoing Complaint to Conform .Judgmcnt arc truc and corrcct to the best ofthc undcrsigncd's knowlcdgc, information and bclicf, Thc undcrsigned undcrstands that falsc statcmcnts hcrcin arc madc subjcct to thc pcnaltics of 18 Pa, C.S,A. S4904, relating to unsworn falsification to authoritics, KRAVCO COMPANY BY: KRA veo, INC. By: - L/"; / ( J.J((.fll j\ '-;(c;'1//&-e.Cr- Debra L. Lambert Vice President Dated: <O~/f-c:r<{, -5- I' LEASE AGREEMENT BY ANO BETWEEN CAMP HILL SHOPPING CENTER ASSOCIATES, as Landlord and JOHN LEE, an Individual, as Tenant TRADE NAME: Tokyo 10/07/96 HM . .'. FUNDAMENTAL LEASE PROVISIONS This Lease Is execuled and made as 0' /, I'i , 1996, by and between KRAVITZ PROPERTIES.INC.. a Pennsylvania corporalion ('Agent"), as Agent for CAMP HILL SHOPPING CENTER ASSOCIATES, a Pennsylvania partnership (herein called "Landlord") and JOHN LEE, an Individual, (here'n called "Tenant"), Landlord and Tenant having the fOllowing nolice addresses: Landlord: Kravitz Properties, Inc. Suite 460 555 East City Line Avenue Bala Cynwyd, PA 19004 Camp Hill Shopping Mall 32nd Street and Trindle Road Camp Hili, PA 17011 Tenant: Altn,: Don Miller Att: General Manager John Lee 20 Water Road Dlllsburg, PA 17019 Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto, subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease: (a) (b) Tenant's Trade Name: Tokyo Term: Sixty (60) months commencing on Ihe Rent Commencement Date, The Rent Term expires on the last day 0' the sixtieth (60) month following the Rent Commencement Oate (the "Expiration Oate"), Tenant Store Number: L,5b GLA of Premises: 330 square feet De"lgn Drawings Submission Date: (See Sec, 7,01) (c) (d) (e) (D Tenant's "Construction Commencement Date": & "ConstructIon PerIod": Minimum Rent: October 1, 1996 October 15, 1996 Thirty (30) days (See Sec, 3,01) (See Exh, A) (See See, 1,04) (See Sec, 2,03) (See Sec, 2,03) (See See, 2,03) (See See, 4,03) (g) Time Period Annual Amount Monthlv Amount Rent Commencement Date through the 36th month: 59,141,00 5761,75 From the 371h month through the end of the Term: 512,741,30 51,061,78 Tenant shall not be obligated to pay any Minimum Rent for the first two (2) months of the Term following the Rent Commencement Date, Tenant shail be obligated to pay all other charges under the Lease during this pertod, (h) Percentage Rent: Time Period (See Sec, 4,04) Break Point The "percentaae" Rent Commencement Date through the 36th monlh; 5152,350,00 Six Percent (6%) From the 37th month through the end of the Term: 5212,355,00 , Six Percent (6%) (i) Ol (k) Required Opening Oate: Security Oeposlt: Merchants Association November 15, 1996 51,100,00 5165,00 (See Sec, 4,02) (See Sec, 2,02) (See Sec, 9,01) .... LEASE AGREEMENT ARTICLE 1: INTRODUCTORY PROVISIONS S.ctlon 1,01: REFERENCES ANO CONFLICTS. References appearing in the Fundamental Lease Provisions are to deslgnale some of the other places In this Lease where additional provisions applicable to the pertlcular Fundamental Lease Provisions appear, Each reference In this Lease to any of the Fundamental Lease Provisions shall be conslrued to incorporate all of the terms provided for under such provisions, and such proviSion shall be read in conjunction with all other provisions of this Lease applicable therelo, If there is any connict between any of the Fundamental Lease Provisions and any other provisions of this Lease, the latter shall control. The Iisling on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not be construed to be an exhaustive list of all charges or the amount thereof payable by Tenant under Ihls Lease, S.ctlon 1,02: GENERAL OEFINITIONS, (a) The term "Shopping Cenle(' means the land shown on Exhibit "A" aUached hereto and by Ihis reference incorporated herein, as the same may hereafter be reduced. expanded or otherwise altered from time to time. (b) The term "Mall Pr.ml..... means the Shopping Center excluding however the Majors' Premises and the term "Mall Premises" includes the same as reduced, expanded or otherwise altered from time to time. (c) The term "Landlord'. BuUdlng" means the buildings, structures and other Improvements shown In general on Exhibit "A" and Includes the "Enclosed Malr' (hereinafter defined), bul excludes the Majors' Premises (hereinafter defined), Landlord's Building is part of Ihe Mall Premises, The term "Landlord's Building" Includes the same as reduced, expanded or otherwise altered from time to lime, (d) The term "MaIo"" Preml.e." (or "Majors Premises") means the premises shown on Exhibit "A- by such lerm, or by the word "Major" or name of the prospective or actual principal occupanlthereof (Ihe "Majors" or a "Major'), and the term "Majors' Premises" (or "Major's Premises") includes the same as reduced, expanded or otherwise altered from time to time. The term "Major' (or "Majo",") includes any replacement for or other substitute of the primary occupant of a Majo(s Premises as well as, In the case of an expansion on or of the Shopping Center, the primary occupant of the premises equal to or exceeding, In terms of GLA, the GLA of anyone (1) of the Majors' Premises shown on Exhibit "A" hereof (even though those premises may not be originally shown thereon), References In this Lease to a Major or Majors shall Include any such replacement, substitute or additional Major and its premises are included within the terms "Majors' Premises" and "Major's Premises". (e) The term "Common Areas" means all areas, facilities and improvements operated or provided at or In connection with the Shopping Center from time tu time for the non.exclusive common use of Landlord, the tenants of the Mall Premises and the Majors, and shall Include but not be limited to the "Enclosed Mall" (hereinafter defined), parking areas, roadways, ramps, traffic conlrols, truck ways, loading and unloading docks, delivery areas, sidewalks, stairways, escalators and elevators (if any), service corridors. exit corridors, seating areas, buffer areas, screening facilities, merchandise pickup stations (excluding those of Majors, if any), public rest rooms and comfort stations, retaining walls, landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage systems, and lighting systems, The term "Common Areas" Includes the same as reduced, expanded or otherwise altered from time to time. (~ The term "Enclo.ed MaU" means the enclosed climale controlled pedestrian mall located in Landlord's Building, and the term "Enclosed Mall" includes the same as reduced, expanded or other"ise altered from time to time, (g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which space Is In the approximate location marked on Exhibit "A" to the ceiling height above the structural floor set forth In Landlord's "Slore Design Criteria" (defined in Seclion 2,03(b) hereo~, (h) The term "Fast Food Cluster" n,eans the area or areas now or in the future specifically designated by Landlord for small restaurant or other food service operations situaled In Landlord's Building or elsewhere in the Mall Premises, including the individual premises and any seating areas located therein and the maintenance and housekeeping areas primarily serving the Fast Food Cluster, The term "Fast Food Ciuster' Inciudes the same as reduced, expanded or otherwise allered from time to time. (i) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best estimate of the number of square feel of area on all floors in Landlord's Building for the exclusive use by the tenants or other occupants thereof and their customers, clients or other invitees including without limitation mezzanines and balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of Common Areas), GLA shall be measured from the exterior face of exterior walls and the exterior face of service corridor walls, the line along the front of the Premises where Ihe Premises abuts the Enclosed Mall as shown on Exhibit A (which line is commonly known as the "L.ase Line"), or the Lease Line of any pop-outs referred to In Section 1.04, as the case may be, and the center line of any wall Tenant shares wilh other tenants or occupants of the Landlord's Building, No deduction from GLA shall be made for columns, stairs, elevators, or any interior construction or equipment. From time 10 time during the Term, Landlord may give Tenant notice of the GLA of Landlord's Building, at a given time for a given period of time, as such GLA may be revised because of reductions, expansions or other alleratlons of Landlord's BUilding or as such GLA may be adjusted pursuant to provisions in the leases of other tenants or occupants similar to those set forth in Section 1,04, The GLA of the Premises and of Landlord's Building shall be utilized to calculate the GLA Fraction (defined In Section 1,020) and to make any other calculations required to determine the charges to Tenant. , ' , . " ij) Th. t.rm "GLA Friction" means a fraction, th. num.rator 01 which shall b. the GLA of the Pr.mls.. and th. d.nominator of which shall be the GLA of Landlord's Building, subj.ct, how.ver, to the provisions of S.ction 4,08, (k) The t.rm "Junior MaJor(I)" means an occupant, (not herein identified as or otherwise her.und.r constituting a "Ma)o(') which owns, occupies or leas.s (i) any bUilding or grounG not conn.cted to Landlord's Building (..g.. a so called .out parcer) or (ii) in .xc... 0115,000 square '..t of GLA in the Shopping C.nt.r and the term "Junior Major(s') Premises" means th. premises in th. Shopping Cent.r owned, occupi.d or leased by a Junior Major, (I) Th. t.rm "Le..e" a. us.d in this document (th. ..Le....) shall mean th. Fundam.ntal Leas. Provisions, th. Lease Agreem.nt, th. Exhibits atlach.d hereto end Add.ndum, if any, Section 1.03: EXHIBITS. Th. following plans and sp.cial provisions a,e attach.d h.r.to as Exhibits, ar.incorporated h.r.in and h.r.by mada a part of Ihis L.as., EXHIBIT A Plan of the Shopping C.nt.r as pr.s.ntly constltut.d which plan also shows the approximate location 01 the Premises. EXHIBIT B EXHIBIT C EXHIBIT 0 EXHIBIT E EXHiBIT F EXHIBiT G D.I.t.d Compl.tlon Ce~lficat., EI.ctricity Schedul. (5.. S.ctlon 6,02), Condition.d Air Charg. Rat. Adjustm.nt Schedul., Fast Food Cluster (S.e Section 6,02) Menu S.ctlon 1,04: GlA OF PREMISES, The GLA 01 the Pr.mises may be recalculated by landlord during the Term, In the eventlhe recalculated GLA 01 the Premises differs from the GLA set Iorth in the Fundamental Lease Provisions and Landlord or Agent so notifies T.nant, Irom and aller the date 0' such nollce the GLA of the Premises shall be deemed amended to correspond to the recalculated GLA and the Minimum Rent and G,oss Sales Break Point and Partial Year Break Point shall be deemed to be those amounts which bear the same relallonship 10 the Minimum Rent, Gross Sales Break Point and Partial Year Break Point stated in this lease or determined by the provisions thereof, as the actual recalculated GLA of the Premises bears to the GLA set forth on the Fundamental lease Provisions, For the purposes 01 this l.ase, the Gross Sales Br.ak Point and Partial Year Break Point are collectlv.ly relerred to as th. 'Br.ak Poinr, T.nant may, subject to receipt 01 all required governmental approvals and Landlord's prior wrltt.n approval, .pop"our' all or a portion 01 the stor.front. Should Tenant install a pop-out stor.front, the GLA of the pr.mlses shall b. Incr.ased 10 inciud.the squar.loot area of th. pop-out(s), Th. Minimum Rent and the Break Point shall b. adjusted in accordanc. with th.lormula setlorth in this Section, to Includ.the area 01 such pop-out(s), Soctlon 1.05: CHANGES TO SHOPPING CENTER. As betwe.n Landlord and Tenant. Landlord may at any time and from time to time eliminate land Irom, or add to or substitute lor land 01, the Shopping Center or any part thereol, or eliminate, add or substltut. any Improvements, or change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the Shopping Center or any part thereof, including, without limitation adding additional ievels to any .xisting buildings ther.ln, Soctlon 1,06: CROSS EASEMENT AGREEMENT. T.nant understands and agrees with Landlord that. notwithstanding anything to the contrary contained in this leas., the Shopping C.nter including, withoutlimitallon, the Common Areas and the Premises are and shall be subj.ct, subordinate and oth.rwise junior to any cross .asem.nt agreement (as they may be or may have been created, am.nded, suppl.m.nted or otherwise modified from time to tim.) between Landlord and each of the Majors or Junior Majors who are parties th.r.to (such cross easement agreement being herein collectively called the "REA"), ARTICLE 2: PREMISES AND TENANT'S WORK Socllon 2,01: lEASE OF PREMISES, landiord, in consideration of the "Renr' (defined in Section 4,01) to be paid and the covenants to be performed by Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, lor the T.rm, al the rental, and upon Ihe covenants, conditions and other terms herein set forth, the commerciai space referred to her.in as the Premises situated or to be situated in Landlord's Building, as the case may be, Section 2,02: SECURITY OEPOSIT, Th. sum referred to as the security deposit in the Fundamental lease Provisions is herein called Oopoolt', The Security Deposit will be held by landlord, without interest accruing in favor 01 Tenant, as faithful performance 01 all of the terms and conditions 01 this Lease lor and during the Term, Provided Tenant under this. Lease, Landlord shall return the Security Deposit to Tenentet the expiration 01 the Term, In no Instance shall , . ", , ' amount of th. Secunty D.pe.it b. consld.r.d a m.a.ur. of liquidated or oth.r damage., All or any part 01 the S.cunty D.pe.~ may b. appli.d by Landlord In tolal or partial cur. by Landlord of any br.ach or oth.r d.fault of T.nant Th. application of all or any part olth. S.curity D.po.llto any obligation or d.lault of T.nant und.r this L.as. shall nol d.priv. Landlord of any olh.r right. or r.madl.. Landlord may have nor shall .uch appllcallon by Landlo'd constitul. a waiv.r or a..umpllon by Landlord, If all or any part or tha Secu"ty Deposit i. applied by Landlord to an obligation or delaull of Tenant hereunder, Landlord .hall hav.lhe right to call upen Tenant to r.stor. the Secunty Depesit to its o"glnal amount by giving notice to T.nant and T.nant .hall immedlat.ty r..tor.lhe S.cunty DepeSlt to It. orlg",al amount by paym.nt th.r.of to Landlord, Tenant .hall not hav. th. light to call upen Landlord to apply all or any part 01 the Secullty Depo.'t 10 cure any br.ach or other d.lault or to fulfill any obllgallon ofT.nanl but .uch u.. shall be sol.ry in the dlScr.lion of Landlord, It Is distlnclly und.rstccd and agr..d that should Landlord transfer Its Int.r.st In thl. L.as., the S.curity D.poslt may be turned ov.r by Landlord to Landlord', g,ant.. or olher transl.ree, and upen any .uch turnov.r of the Security Deposit, Tenant her.by r.l.ase. Landlord herein named 01 any and all liability or other obllgallon with r.spect to th. Security D.pesit, It. application and r.turn, and Tenant agre.s 10 lock solely to such granlee or oth.r transf.ree, It is furth.r und.rstood and agreed thatth.se provision. .hallalso apply 10 .ubsequ.nt grant.e. and other tran.f.'..., The S.curlty D.posit shall b. deemed th. sol. prop.rty of Landlord, Section 2.03: PREPARATION OF PLANS AND TENANrS WORK, (a) Tenanl has had the opportunity 10 examine the Premls.s and h.reby agrees 10 accept same In the "as Is" condition In which Ih. Pr.mlses .xlst on the dal. Landlord lurns ov.r the key to th. Premises to Tenant or T.nant's d.slgn.., T.nant lurth.r acknowl.dg.s that Landlord has not mad. any r.pr.s.ntatlons as to the pr.s.nt or fulur. condition 01 the Pr.mis.s, th. pr.ssnce or abs.nc. of hezardous mal.rlals (h.r.inaft.r d.fined) and chloroftuorocarbcns Iher.in or whatlt.ms, ifany.th. pr.s.nt occupant ofth. Pr.mis.s is r.quir.d 10 or may I.av.th.r.in, Landlord .hall not b. r.qulr.d to s.nd T.nant any formal notic. tsnd."ng pe....slon of th. Pr.mls.s nor .hall Landlord b. liabl. In the event th. .xlstlng occupant of th. Premls.s falls to timely vacat.the same, .xcept that any delay In occupancy shall ext.nd the Required Opening Oate specified h.reln for a p.rlod equal to the number 01 days b.twe.n th. Construction Commenc.ment Oat. sp.cifi.d h.r.ln and the date such lormer t.nant vacat.s; provided that If physical poss.sslon of the Premises is not availabl. by a date which Is one year ~om th. Construction Commencement Dale, at Landlord'. option, this Lease shall be null and void and neither party shall have any liability h.reunder to the oth.r, (b) Tenant .hall perform all wo,k required to be performed by Tenant to fully and complet.ly remodel the Preml..s and to adapt the same for Tenant's us., as .uch use Is specified and limited by the Fundamental L.ase Provisions, all such work being referred to herein as "lenant's Work". Tenant shall design the Premises in accordance with Landlord's current store and sto'e~ont design critella booklet and otherwise comply with all requirements therein (herein call.d "Store D.,lgn Crltsrla"), a copy of which Tenanl acknowledg.. it has r.c.ived, T.nanl shalt Instruct Its archit.ct or designer 10 prepare T.nant's plans lor the Premises In compliance with the Americans with Disabilities Act, the CI.an Air Act and all oth.r applicabl.laws, rul.s, cod.s, and r.gulatlons, In Ihe .vent of any Inconsistences b.tween the t.xl of this L.as. and the Store Oeslgn Criteria, th. latter shall pr.valt, Entry by Tenant to the Premises prior to the R.nt Commencement Oate shall b. subj.ct to all 01 the provisions of this L.ase, .xcepl the duty to pay Rent but T.nant shall pay for all ulillti.s and s.rvlc.. supplied to it during such period, T.nant agr... to perform T.nanl's Work in such manner so as not to caus. any Int.rfer.nce with the us., occupancy or .njoym.nt of the r.maind.r 01 the Shopping C.nt.r, or any part th.r.of, T.nanl shalt promptly cause to be r.paired all items which may have been damaged as a r.sult of the performance of Tenant's Work promptly upen the occurr.nce of such damage and shall at alltim.s ke.p all portions of the Shopping C.nter (other than the Premls.s) free Irom and unobstructed by debris, equlpmenl or materials related to Tenanl's Work, (c) On or before th. D.slgn Orawing Submi..lon Date, Tenant shall submit to Landlord's lenanl cccrdlnator (herein called the "T.nant Coordinator') for the Landlord's approval design drawings (herein called the "O.algn Drawings") specifying each aspect 01 Tenanrs Work and specifically Including a colored rendering 01 the proposed store~ont and signing. sample mate"als to be used In the Premises and sign, photograph 01 fixtures to be used and the interior layout 01 the Premises. The Design Drawings shall be prepared In accordance with the Store Design Criteria, After receipt of the Oeslgn Drawings, Landlord shall retum to the Tenent the Design Drawings, either "approved", "approved as noled" or "disapproved"; II they are marked "disapproved", Landlord shall also note the reasons 01 such disapproval. On or before thirty (30) days after r.celpt of the "disapproved" Design Drawings, Tenant shall resubmit 10 the Tenant Coordinator revised Oeslgn Orawlngs meeting Landlord's objections, Landlord shell thereafter relurn the same to Tenant, marked as set forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been "approved as noted" or "approved", On or before thirty (30) days after receipt of "approved as noted" or "approved" Oeslgn Drawings Tenent shailsubmlt 10 the Tenant Cocrdinator for Landlord's approval, working drawings and specifications (herein called "Final Plans") for architecturel, el.ctllcal, mechanical, sprinkler and plumbing work within the Premises end all olher Tenant Work propesed by Tenant and shown on the Design Drawings and required by the Store Design Criteria, The Final Plans shall be prepared In accordance with the Design Orawings es marked "approved as noled" or "approved" by Lendlord, The Flnel Plans shall Incorporate any revisions required by Landlord to the Design Drawings, Including those forming the basis of Landlord's approving the same "as noted", After receipt 01 the Final Plans, Landlord shall return to Tenant the Finel Plans, marked elth.r "approved", "approved as noted" or "disapproved", If they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, or before ten (10) days after receipl 01 sucli "disepproved" Final Plans. correct any deficiencies slated by Landlord and resubmit within ten (10) days corrected Final Plans to Landlord until sama are accepted as "approved as noted" or "approved", If Landlord accepls Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordlnalor, but Tenant shell revls. such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant Work In the Premises shall be constructed in such fashion as to comply with Ihe notes disclosed on such "approved as noted" Final Plans, IfTenant does not correct such deficiency and resubmit any disapproved Final Plan. within the required time period, such failure shall constilute an Event 01 Default Tenanrs Work shall be performed only In accordance 'wilh the Final Plans, es marked "approved as noted" or "approved" by Landlord, Tenanrs failure to .ubmlt lis Design Drawings on or before the Design Drawings Submission Date or Tenant's failure to commericeTenant's Work on or befors' the Construction Commencement Date shall be an Evenl of Delaull pursuant to Section 16,01 unless such failure results from Landlord's Inability 10 deliver possession of the Premises 10 Tenant on the Conslructlon Commencement Date, (d) Together with Tenant's submission of ils Oeslgn Drawings and together with any other plans submitted by Tenant relating 10 any other work In the Premises which Tenant desires or Is required to perform, Tenant shell pey Agent on 5 .... each occasion the sum of One Thousand and 00/100 Dollars ($1,000.00) to defray the cost of reviewing Tenant's Design Orawings and Final Plans, (e) On or before the Construction Commencement Oate, Tenant shall deposit with Landlord certificates of insurance as requi,ed in Article 11 and a true copy of Tenant's building permit and shall commence Tenanrs Work and prosecute 'I diligently and continuously to completion including installallon of fixtures and equipment in the Premises, Prior to the commencement of any Tenant Work or the delivery of any material to the Premises by any contractor, subcontraclor or malerlalman (herein called "Contractor"), Tenanl shall deliver 10 the Tenant Coordinetor a signed, acknOWledged and sealed waiver of liens (herein called 'Contractor's Waiver of Liens") from each Contractor In the form specified by Landlord, The Con~actor's Waiver of Liens provides, among other things, that the Contractor waives any and aliI/en righls that it may have against Landlord's estate, right, title and interest in the Shopping Center and any part thereof including, without limitation, Landlord's Building end the Mall Premises, Within Ihlrty (30) days after Tenant's opening the Premises for business, Tenant shall deliver to Landlord an executed Completion Certificate In the form altached hereto as Exhibit 'Co, (Q Landlord shall have the right to post and keep posted In the Premises notices of non.responslbillty. or such other notices as Landlord may deem to be proper for the protection of the landlord or landlord's estate, right, tllIe and interest in l11e Shopping Center and any part thereof, Tenant shall before the commencement of any work which might result In any claim, lien or olher charge give 10 Ihe Landlord written notice of its intention to commence said WOrk in sufficient time Ie enable Landlord to post, file end record such notices, The provisions of this Section 2,03 shall apply with respeclto Tenanrs Work or any other work performed In or about the Premises at any time during the Term hereof, Section 2.04: OPENING OF PREMISES. (a) Tenanl agrees to open its business to the public in the Premises no later than the Required Opening Date specified in the Fundamental Lease Provisions. (b) Tenant shall complete, or cause to be completed, Tenant's Work and the installation 0' fixtures, equipment and merchandise no later than the Required Opening Date, If Tenant falls to open its business to the public In l11e Premises on or before the Required Opening Date, Tenant shall pay to Landlord, In addition to Minimum Rent and Additional Rent, an amounlequal to one percent (1%) of the annual Minimum Rent for each day Tenanrs business remains not open In the Premises from and after the Required Opening Date (counllng the said Required Opening Oate as the first such day,) Any and allsurns and other charges payable by Tenant to Landlord pursuant to the Immediately preCeding sentence shall be paid on demand to offset adminls~atlve costs and expenses incurred by Landlord as a result of Tenant's late opening and shall in no way abrogate, or relieve Tenant from any of Tenant's obllgallons under this Lease, inciuding without limitation l11e obI/gallon to open its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at law and In equity, arising from Tenant's failure to open pursuant to this Section 2,04(b), Section 2,05: MECHANIC'S LIENS, (a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge arising out of any work done or materials or SUPPj,..s furnished by any contractor, subcontractor, mechanic, laborer or materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien or encumbrance or other charge (collectlvety a "Charge') against or upon the Shopping Center or any part thereof, including without limltallon the Mall Premises and Landlord's Building or the income therefrom, Tenant will not suffer any other matter or thing whereby the estate, righllitle and interest of Landlord in the Shopping Center or any part thereof Inciudlng without limitation the Mati Premises and Landlord's Building might be impaired, If any claim or lien or notice of claim or lien on account of an elleged debt ofTenant or any notice of contract or Charge by a person engaged by Tenant orTenant's contractor to work on the Premises shall be filed against or upon the Shopping Center or any part thereof Inciuding without limitation, the Landlord's Building or the Mall Premises, Tenant shall within twenty (20) days after demand from Landlord, cause the same to be dlscherged of record by payment, deposit, bond, order of a court of competent juriSdiction or otherwise, If Tenant shall fail to cause such claim or lien or notice of claim or lien or other Charge to be discharged within the period aforesaid, then, in addition to any other right or remedy It may have, landlord may, but shall nol be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord shall be entilled, if landlord so elects, to compel the prosecution of an acllon for the foreclosure of l11e same by the claimant and to pay the amount of any Judgment in favor 0' the claimant wil11 interest. costs and allowances, Any amounl so paid by Landlord and ail interest, costs and expenses, Including attorneys' fees, Incurred by Landlord in connection therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on demand, Nothing herein contained shali obligate Tenant to payor diScharge any charge created by , Landlord, (b) Tenant shall pay promptly all persons furnishing labor or malerlals wilh respect to any work by Tenant or Tenant's contractor In or about the Premises, . No work which landlord permits Tenant to do shall be deemed to be for the Immediate use and benefit or Landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against the estate, right, tille or interest of Landlord by reason of any consent given by Landlord to Tenant to do work in or ebout the Premises or provide malerials therefor, Nothing contained herein shaillmply any consent or agreement on the part of Landlord to subject landlord's estate to liability under any mechanics' or other lien law, ARTICLE 3: TERM Socllon 3,01: TERM OF THIS LEASE, The term of this lease (sometimes herein called the "Term") means the period of the "'nterim Term" (hereafter defined) followed immedialely by the period of the "Rent Term" (hereinafter defined), The "Interim Term" means the period commencing on the dale of this Lease and ending on the date Immediately preceding the Rent Commencement Dale, The "Rent Term" means the period commencing on the Rent COlllmencement Oate and ending on the Expiration Date..88 extended pursuant to Section 21,02 hereof or by agreement executed by Landlord and Tenant or sooner terminated 88 6 ..'. . ' provided herein, as the case may be, Section 3.02: VEARS, Thetarm "Vea(' means each successivelwelvel12) month period from January 1 through December 31 occurring during the Term, plus, if applicable any Panial Vear.. "Partial Vear" means the period between and including the Rent Commencement Oate, If that dale Is not January " and the next succeeding December 31 and, If applicable, lithe Term ends on otherthan a Oecember 31, the period beginning on the lasl January 1 01 the Te,m and ending on the last day olthe Term ARTICLE 4: RENT Section 4.01: TENANT'S AGREEMENT TO PA V RENT. Tenant hareby agrees to pay lor the right 0' use and occupancy 01 the Premises during the Term, at the times and In the manner herein provided, the Minimum Rent, Percenlage Renf and Additiona' Rent As used in Ihis lease, Ihe term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent Section 4,02: RENT COMMENCEMENT OATE, As used in this Lease, the term "Ront Commoncomont Oato" shall mean the earlier of; (a) Oate"); or (b) the date on which Tenant initially opens Its business to the public in the Premises (the "Actual Opening the calendar date set lonh as the Required Opening Date in the Fundamental Lease Provisions, Secllon 4.03: MINIMUM RENT. (a) The base ,ent Tenant shall pay Landlord for each Vear shall be the amount set lonh in the Fundamental Lease Provisions as the Minimum Rent perVear and shall be payable In twelve (12) equal monthly installments, In advance, on the firsl day of each calendar month, (b) The base rent Tenant shall pay Landlord for any Panial Vear shall be that amount set lonh in the Fundamenlal Lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this Lease, "Partial Year Fracllon" means a Iraction, the numerator of which is the number of days in the applicable Panial Vear, and the denominator of which Is three hundred sixty-five (365), The base rent payable lor a Panlal Vear shall be paid In equal monthly Installments, in advance, on the first day of each calendar month, except that il Ihe Rent Commencement Date is not the first day of a calendar month, then that portion of such base rent which is attributable to the days in that first partial calendar month shall be paid, In advance, on the Rent Commencement Date, (c) The base rent payable by Tenant pursuant to Section 4,03(a) or (b), whichever Is applicable, is called the "Minimum Rent1t in this Lease. Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent increases during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a partial month shall be disregarded, (d) II, at any time during the Term the Shopping Center shall be expanded by the addition of one or more Majors' Premises or the Shopping Center is expanded by more than 60,000 square feet of GLA, Tenant agrees that the Minimum Rent provided in the Fundamenlal Lease Provisions shall be increased by fifteen percent (15%) upon the dale each such additional Majors' Premises first opens for business or the opening of the expanded Shopping Center, Landlord agrees that the Break Point shall be likewise increased by fifteen percent (15%), Secllon 4,04: PERCENTAGE RENT, (a) In addition to Minimum Rent, Tenant shall pay Landlord percentage rent (herein called "Percontage Ront") as determined by this Article 4, The Percentage Rent lor each Vear shall be an amount equal to the "Percentage" (which Is set forth In the Fundamenlal Lease Provisions) multiplied by the amount 01 Gross Sales made during such Vear In excess of the applicable Break Point set forth in the Fundamental Lease Provisions, The Percentage Rent for each Partial Vear shall be an amount equal to the Percentage multiplied by the amount of Gross Sales made during such Panlal Vear In excess 0' the Panial Vear Break Point The term "Partial Vear Break Point" shall mean an amount equal to the Break Point multiplied by the Panial Vear Fraction for the applicable Panial Vear, (b) In each Vear or Panial Vear, Tenant shall be obligated to pay Percentage Rent beginning with the first month in which the aggregate amount of Gross Sales made for such Vear or Panlal Vear exceeds the Break Point. Tenant shall pay Percentage Rent (In addition to Minimum Rent and Addlllonal Rent) for each and every succeeding month during the remainder of such Vear or Panlal Vear on all additional Gross Sales, Each payment of Percentage Rent shail be paid by Tenant to Landlord without demand and otherwise as set forth In this Allicle 4 together with Tenant's monthly statement of Gross Sales provided for in Section 4,06, subject to the annual adjustment provided for In such Section 4,06, (c) In the event any Break Point is subject to adjustment during the term of this Lease, and the date on which any such adjustment Is to occur (hereafter referred to as the "Rental Adjustment Date") is other than the first day of a Vear, the Break Point for the Vear In which the Rental Adjustment Date shall fall shall be the sum ot (1) the Initial Break Point multiplied by a fraction the numerator of which shall be the number 0' days In the period commencing on the first day of the Vear in which the Rental Adjustment Date shall fall and ending on the day Immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty.five (365), plus (2) the latter Break Point multiplied by a fraction, the numerator of which shall be the number of days In the period commencing on the Rental Adjustment Oate and ending on the 7 " la.t day of the Year in which Ihe Rental Adju.lmenl Dale shall fall and Ihe denominator of which shall be three hundred .ixty" five (365), Socllon 4.05: GROSS SALES, (a) The le,m "Groll Salo." mean. the tolal gross receipt. and receivable. of all merchandise, wares and olher good. soid or leased dnd the aclual charge. 'or all .ervlce. performed. business conducled and accommodations rondered by Tenant and by any sublenant, IIcan.ee, concesslonalra and olher occupanlln, at, from, or arising out of Iha use of tha Premises, whelherwholesale orretall, whelher for cash or credil, or otherwise, and Including Ihe value of all consideration olher than money received for any 0' the foregoing, w'thoul reserve or deducllon 'or inabillly or failure to collecl, Inciuding but not IImiled to sales, leases and services: (I) where Ihe orders there'or orlginale In, at, from or arising oul of the use of Ihe Premises, whether delivery or performance is made from the Premises or 'rom some other place and regardless of Ihe place of bookkeeping for. payment of, or collection of any accounl; or (II) made or performed by mall, telephone, or lelegraph orders received or filled In, at or from Ihe Premises; or (iii) made or performed by means of lelephonlc, mechanical or olher vending means or devices In or for the Premises: or (iv) which Tenanl, and any sublenanl, licensee, concessionaire and other occupant, In the normal and cuslomary course of lis business, would or does c,edit or attrlbule to lis operallons althe Premises or any part thereof, Any deposll accepled and retained by Tenant shall be Included In Gross Sales, Each Installment or credit sale shall be treated as a sale for the full price In the monlh during which such sale Is made, Irrespective of whether or when Tenant receives payment therefor, No franchise, value added tax, capital stock lax, tax based upon assels or net worth or gross recelptlax, and no Income or similar tax based on Income or profits shall be deducled from Gross Sales, (b) Only the following shall be excluded 'rom Gross Sales: (I) any exchange of merchandise between slores 0' Tenanl when such exchange Is made solely for the convenient operation of Tenanfs business and Is not for the purpose of consummating a sale made in, at or from lhe Premises; (II) relurns 10 suppliers, shippers or manufacturers; (iii) cash or credit refunds to customers on transaction othetW'ise included in Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock for sale or trade. after use thereof In Ihe conduct of Tenant's business; (v) amounls separately slaled In the sales receipl and collected from customers which are paid by Tenant 10 any governmenl for any sales or excise tax imposed by law althe point of sale, Socllon 4.06: REPORTING OF GROSS SALES; VEAR ENO AOJUSTMENT, (a) Tenanl shall furnish to Landlord within twenty (20) days after the end of each calendar month during the Term a complete stalement (Ihe "Monthly Roport"), certified by Tenant (or a responsible financial officer thereof If Tenant is a corporation), selling forth (I) the amount of Gross Sales during such monlh, (i1) the aggregate amounl of Gross Sales during such Year (or Partial Year, as the case may be), Including such monlh, (ill) lhe amount, If any, by which such aggregate amount of Gross Sales exceeds the Break Point, and (Iv) the amounl of Percenlage Rent previously paid by Tenant to Landlord for such Year (or Partial Year, as the case may be), The Monlhly Report shall be In such form and style and contain such details and breakdown as Landlord may reasonably require, (b) Tenant will also fumish to Landlord wllhln sixty (60) days after lhe end of each Year a complete statement (the "Vearly Report") certified by Ihe chief financial officer of Tenant, showing in reasonable delailthe amount of Gross Sales during such Year and the amoullt paid to Landlord pursuant to Section 4,04(b) for such Year, The Vearly Report shall be accompanied by the signed opinion of the person certifying Ihe Veariy Report specifically slallng that such person has read the definition of "Gross Sales" contained in this Lease, that such person has examined the Vearly Report of Gross Sales of such Year, that such person's examination included such tests of Tenant's bocks and records as such person considered necessary under Ihe circumstances, and that the Vearly Report accuralely represenls the Gross Sales of such Year, (c) An adjustment shall be made with the furniShing of each Vearly Report with respect to Percentage Renl as follows: If Tenanl shall have paid to Landlord an amount greater than Tenant Is required to pay as Mlllimum Rent and Percentage Renl under Ihe terms of Seclk",s 4,03 and 4,04(a), Tenant shall receive a credit of such excess against payments of Minimum Rent next becoming liue to Landlord; or, If Tenanl shall have paid an amounlless than was required to be so paid, then Tenant shall forthwith pay such difference, In no event, however, shall the sum of Ihe Minimum Renl and Percentaga Rent to be paid by Tenant and relalned by Landlord under lhe lerms of Sections 4,03 and 4,04(a) for any given Year be less than the Minimum Rent for such Year, (d) The reports required by this Secllon 4,06 shall be delivered to Landlord at the notices address of Landlord or to such other person and/or 10 such olher place as may 0" deslgllated from time 10 time by notice from Landlord to Tenant Soclloll 4,07: TENANT'S RECORDS & AUOITS, (a) Tenant covenanls and agrees that the business records of Tenant and of any subtenant, licensee or concessionaire shall be maintained In accordance with generally accepted accounting principles, Furthermore, Tenant shall keep at all times during the Term, al the Premises or allhe home or regional office of Tenant, full complete and accurate books of account and records in accordance with generally accepled accounllng practice with respeclto all operations of the business conducted In or from lhe Premises, Including lhe recording of Gross Sales and the receipt of all merchandise and other goods Inlo and the delivery of all merchandise and olher goods from the Premises during Ihe Term, and shall retain such books and records, copies of all lax reports and tax returns submllted 10 laxing aulhorlties, as well as copies of contracts, vouchers. 8 .', , ' checks, invenlory records and other documents and papers in any way relating to the opera lion 01 such business for at least three (3) years from the end of Ihe period 10 which Ihey are applicable, or if any audit is required or a conlroversy should arise between lI1e parties hereto regarding Ihe Renl payable hereunder, until such audit or conlroversy is terminated even 1I10ugh such retention period may be after Ihe explral/on 01 Ihe Term or earlier lerminal/on 01 this lease. Such books and records shall be open al all reasonable times during the aloresald relenlion period 10 Ihe inspection 01 landlord or ils duly aulhorlzed represenlatives, who shall have full and Iree access to such books and records and Ihe right to require 01 Tenant, its agents and employees, such informalion or explanal/on and audillhereof and the rig hi 10 require Tenanlto make such books, records and olher malerials which Tenanl is required 10 relain available allhe Premises for such examlnal/on end audit. (b) The ecceplanco by the landlord of payments of Percentage Renlshall be without prejudice 10 the landlord's axamination and audit rig his hereunder. landlord may al any reasonable lime, upon len (10) days' prior written notice to Tenant, cause a complete eudltto be made of Tenant's entire books, records and olher malerials which Tenant Is required 10 relain (including Ihe books and records of any subtenant, I/cens.e, concessionaire and olher occupanl) for all or eny part olthethree (3) year period immediately preceding the day ofthe giving of such notice by landlord to Tenant Ifsuch audilshall reveal a deficiency in any paymenl of Percentage Renl, Tenanlshall lorthwlth pay 10 landlord Ihe amount of the deficiency, (c) II such audilshall disclosell1at (i) any of the Yearly Reporls understate Gross Sales during lI1e reporting period ofthe report 10 Ihe extenl of lwo percent (2%) or more; or (il) Tenanl has not recorded Gross Sales, or kepi books 01 accounl and records, as and for Ihe period required by Ihis Section 4.07; or (ill) if Tenanl shall be delinquenl in delivering 10 landlord lI1e Yearly Reporl or Monthly Reports for two (2) consecutive months, or more than twice In any Year or Partial Year, Ihen such underslatement, failure or delinquency shall be an Event 01 Default. In addillon, in the event 01 such understalement or failure, landlord shall have the rlghllo bill 10 Tenanlthe amount 0' any deficiency In Percentage Renl and the reasonable cost of said audit which shall be paid by Tenanl within len (10) days after demand which deficiency will bear interest allhe "Default Rate" (defined In Section 16.03 hereoQ 'rom and after Ihe date it should have been paid until paid. (d) In Ihe ,-.enl Tenanl violates lI1e provisions 01 Sections 4.06 or 4.07 or both and as a resull of such violation, landlord, or its duly aul!l. rlzed represenlatives, Is unable 10 conduct a proper examination andlor audit, Ihe parties agree Ihat landlord shall have been deprived of an important right under this lease and, as a resulllhereof, will suffer damages in an amount which is nol readily ascertainable and Ihus, in such evenl, landlord, in addition 10 and not in lieu of any oll1er remodles which landlord has under Ihis lease, at law or in equity, shall havelhe righi, at ils option, 10 collecl. as liquidaled damages and nol as a penally, an amount equal 10 twenly percent (20%) 01 the greater of (i) Percenlage Rent reported 'or the period or periodS in quesllon, or (ii) Ihe annual Minimum Rent payable for Ihe period or periods in question. Tenanl agrees to pay such liquidaled damages. Section 4,08: ADDITIONAl. RENT. In addilion 10 Minimum Rent and Percenlage Rent, Tenanl shall pay, as additional rent (herein sometimes collectively called "Additional Renl") all oll1er amounls, sums 01 money or charges of whatsoever nature required to be paid by Tenant 10 Landlord pursuant to Ihis lease, whelher or nollhe same is designaled as "Additional Renl". The terms ''Taxes", ''Tax Charge", "CAM Sum" and "CAM Charge" are defined In Arlicles 5 and S, respecllvely. In compullngthe Tax Charge, the CAM Charge and any other charge 10 Tenant compuled on Ihe same or subslantially similar basis as Ihe Tax Charge or the CAM Charge (collectively "Olher Like Charges"), the nel payments by Majors and Junior Majors to landlord loward Ihe Taxes, Ihe CAM Sum or the sums on which Olher like Charges are based (collectively the "OlC Sums") shall be applied respectively to reduce the Taxes, lI1e CAM Sum and lI1e particular OLC Sum belore apportionment and delerminatlon of Ihe Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant and for the purposes of computing lI1e Tax Charge, Ihe CAM Charge and such Oll1er like Charge, the denominator 0' Ihe GLA Fraction shall not Include Ihe GLA 0' the Majors' Premises and Ihe Junior Majors' Premises. Section 4,09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS, Renl payable by Tenant under this lease (whell1er Minimum Renl, Percentage Rent, or Additional Rent) shall be paid when due without prior demand lI1ere'or (unless such prior demand Is expressly provided for in this Lease), shall be payable will10ut any deductions or seloffs or counterclaims whalsoever (except for credits expressly permitted by this Lease) and shall be paid by Tenant to landlord at the paymenl address 01 Landlord set 'orth in the Fundamental lease Provisions or to such payee andlor at such other place as may be designaled from time 10 time by notice from landlord 10 Tenant. Allhe end 0' Ihe Term, provided Tenant Is not in default, landlord shall re'und to Tenanl any amounl of excess Renl paid to landlord and any other amounts due from Landlord to Tenant. Any Rent, or installmenlthereof, which is not paid by Tenanlto Landlord within seven (7) calendar days after it is due shall bear interesl at the Oe'aull Rate. In Ihe event any installment 0' Minimum Renl or olher sum under this Lease shall not be paid when due, a "Late Charge" 0' five cents ($.05) per each dollar so overdue may be charged by Landlord, as Additiona! Rent, lor the purpose 0' delraylng landlord's adminislrative exponses incident 10 Ihe handling 01 such overdue payments. Secllon 5.01: TENANrS TAX CHARGE, ARTICLE 5: TAXES AND ASSESSMENTS Tenant shall pay to Landlord In each calendar year, as Additional Rent, Tenant's share 01 all real estate and other ad valorem taxes and olher assessments, imposilions, excises and olher governmental or quasl.governmental charges of every kind and nature (Including, bUI not limited to, general and special assessments, sewer and fire district assessments, loreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and alllmprovemenls thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease. Tenant's share of the Taxes in each calendar year (Ihe "Tax Charge") shall be an amount equal 10 the producl obtained by mUltiplying the Taxes appllcableto such calendar year by Ihe GLA Fraction (with dally proration lor any Partial Year). "Taxes" shall also include landlord's reasonable costs and expenses (InclUding slatulory interest, if any) in obtaining or attempling to oblaln any refund, reduction or deferral of Taxes. 9 .'. Section 5,02: PAYMENT BY TENANT, (a) Payment of Ihe Tax Charge required under this Article 5 shall be paid by Tenant in equal monthly Installments In advance In such amounts as are estimated and billed by Landlord based upon Ihe total Taxes payable In each calendar year. landlord may revise i1s estimate and may adjust such monthly payment atlhe end 01 any calendar month. The first such Installment shall be due end payable by Tenant on the Rent Commencement Dale (prorated 'or the remaining number of days in Ihe calendar year) and subsequent Inslallments shalllhereafter be due and payable atlhe beginning of each ensuing calendar monll1 during lI1e Term. In addlllon to Ihe payments provided lor In thelmmedialely preceding senlence, if, prior to Ihe Rent Commencement Date, landlord shall have prepaid all or a portion 01 the Taxes applicable to tho Term, the Tax Charge shall Include end Tenant shall reimburse 10 landlord the Tenant's share 01 such Taxes (calculaled In accordance wlll1 the provisions of Section 5.01), on or belorethe Rent Commencement Dale. Landlord shall send to Tenant an invoice selling forth Tenant's share 01 such Taxes, togelher with copies of receipted bills evidencing landlord's payment 01 such Taxes. (b) After landlord has received Ihe Tax bills for each calendar year, landlord will notify Tenant 01 (I) Ihe amount 01 Taxes on which the Tex Charge Is based, (II) Ihe amounl of any refund, reduction or delerralexpenses, (iii) Ihelotal GLA of the Premises and landlord's Building on which the Tax Charge Is based and (iv) the amount of Ihe Tax Charge, If Ihe aforesaid monthly paymants on account of the Tax Charge for a given calendar yea, are grealer than Tenanl's share of Ihe Taxes payable for a given calendar year, Tenant shall receive a credit Irom Landlord for the excess againSllnslallments of Ihe Tax Charge next becoming due to Landlord, and if said payments are less Ihan Tenant's share, Tenant shall forthwill1 pay landlord the difference. Section 5,03: TENANrS ADDITIONAL TAX OBLIGATIONS, <a) Tenant shall pay before delinquency any and alllaxes, assessmenls, impositions, excises, fees and other charges levied, assessed or imposed by governmentat or quasl.governmental aull10rily upon Tenant or its business operalion. or based upon Ihe use or occupancy 0' the Premises, or upon Tenant's leasehold Interesl, Irade fixtures, fumishlngs, equipment, leasehold improvements (Including, but not limited to, those required to be made pursuanlto Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal properly of any kind owned, inslalled or used by Tenant in, 'rom or upon the Premises. If the properly of landlord Is included in any of the foregoing items, lI1e aforesaid taxes, assessmenls, imposillons, excises, lees and other charges shall nonell1eless be paid by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax, or other tax, assessment, imposillon, excise or olher charge now or hereafter levied, assessed or Imposed upon or against this Lease or any Rent or other sums paid or 10 be paid hereunder, or Tenant's, Landlord's or Agent's Intereslln this lease or any Rent or olher sums paid or 10 be paid hereunder. Should the approprialelaxlng aulhorlty require Ihat any lax, assessment, Imposition, excise or other charge relerred to In this Section 5.03(a) be collected by Landlord or Agent 'or or on behalf of such taxing authorily, then such tax, assessment, Imposillon, excise or other charge shall be paid by Tenanlto Landlord or to Agent monll1ly as Additional Rent in accordance with the terms of any notice from landlord or Agent to Tenanllo such effect. The laxes, assessments, Impositions, excises, fees and oll1er charges described in this Secllon 5.03(a) shall be the obllgallon olTenant and not Landlord or Agent. II any tax, assessment, imposition, excise, 'ee or other charge covered by this Section 5.03(a) is Imposed on landlord or Agenl, Tenant shall pay lI1e same 10 Landlord within Ihirly (30) days after receipt 01 each billtherelor. (b) Nothing herein contained shall be construed to include in Taxes any Inherilance, estale, succession, transfer, gift, franchise, corporation, net Income or profit lax or capital levy that Is or may be Imposed upon landlord; provided, however, thai, If at any time during lI1e Term the methods of taxation prevailing at the commencement of Ihe Term shall be allered so that In lieu of or as a supplement to the whole or any part ofthetaxes now levied, assessed or impOSed on real estate as such there shall be levied, assessed or Imposed (il a lax on the rents received from such real eslate, or (ii) a license fee measured by the rents receivable by Landlord from lI1e Shopping Cenler or any portion thereof, or (Iii) a lax or license 'eelmposed upon landlord which is otherwise measured by or based in whole or in part upon the Shopping Cenler or any portion thereof, then the same shall be included in Ihe computation of "real eslatelaxes" hereunder, computed as if Ihe amount of such lax or fee so payable were that due if the Shopping Cenler were the only properly of landlord sUbJecI therelo. If any gross receipts lax shall be payable by landlord, Tenant shall pay the portion thereof attributable to Landlord's receipts from Ihis lease. ARTICLE 6: SERVICES Section 6,01: SERVICES, (a) Tenant agrees to connect to and use the utilities, facilities and/or services (including electricity, sanitary sewer, water, chilled water, gas, telephone and any other utility facility and/or service) supplied to or for the Premises by Landlord or the applicable ulllity company, municipality andlor other governmental body or authority supplying the utility service and to pay landlord or the applicable utility company or olher suppllerthereorror such utilities. Landlord shall Incur no liability to Tenant, nor shalllhis lease be affected, In the event that any utillly, facllily andlor service becomes unavailable 'rom any source of supply or for any reason not within Landlord's conlrol. (b) In Ihe event the Premises do nol presenlly contain an electric or other utility meter, al Landlord's request Tenant shall, within 'arty five (45) days after receipt 01 such requesl, at its sole cost and expense, install a meler 0' a type approved in advance by landlord. Section 6.02: SERVICE CHARGES. (a) In the event any utilities used In the Premises are supplied by landlord, Tenant agrees to pay the charges 'or such use, as Additional Rent. in advance, on the firsl day of each monlh during the Term (proraled for any tractional monll1). Such charges are collectively called the "Services Charges". The presenl amount or method 0' calculation 0' the Services Charges is set forth on Exhibit "0", Exhiblt"E" and Secllon 6.05, landlord shall Invoice Tenanl for the amount 0' the monthly Services Charges 'orthe Premises. II Tenant fails 10 make any such payment to Landlord within len (10) days tram the dale such payment is due, or upon failure of Tenanlto pay any other sums of Minimum Rent, Percentage Rent, Additional Ren~ 10 .', or other Rent or charges due under the provisions of this Lease in full, Landlord may, without limitation, cut off and discontinue any such water, energy and samtary services furnished to or 'or the Premises, without any liability to landlord. Any action by Landlord pursuant to tha provisions 01 this Secl/on 6.02 shall nol be construed as an eviction or disturbance of possession or an election by Landlord to terminale this lease. (b) Landlord shall not be liable to Tenant In damages or otherwise if any 01 the utilities supplied by Landlord are Interrupled or tarminated bOc:luse of necessary repalfs, installations or improvements, or any cause beyond the Landlord's control, nor shall any such Interruption or termination relieve Tenanl of the performance 0' any of Its obligations hereunder. Tenanl shall operate the Premises in such a manner as shall not waste energy or water or burden or harm sanitary service. Landlord may cease to furnish anyone or more of said services wilhout responsibility to Tenant except to connect the service facilities with such other nearby source as may be available for the services so discontinued. Secllon 6,03: TELEPHONE, Alllelephone service required by Tenant for lIs Premises shall be obtained by Tenant and shall be Installed by lI1e appropriate utility company. All charges for telephone service (Including the Installation thereoQ shall be billed directly to Tenant by the utility company providing the service. Tenant shall pay 10 the appropriate utility company all charges as and when they become due and payable. Section 6,04: TRASH AND GARBAGE REMOVAL. Tenant shall be solely responsible lor trash and garbage removal 'rom Ihe Premises, Including the placing of all trash and garbage in containers provided by Landlord for such purpose. In the event Landlord elects to furnish such service to the tenants In Landlord's Sulldlng, Tenant agrees to use only the service provided by Landlord and to pay for such service (Including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as Additional Rent, in accordance with a schedute of charges to be established by landlord (Ihe "Refuse Handling Charge") which landlord may include among the Service Charges set forth in Section 6.02 hereof. In no event shall Tenant be obligated to pay landlord more for such trash and garbage removal service lI1an lI1e prevailing compelitive rates of reputable independentlrash removat contractors for service similar to Ihat provided by landlord. Tenant shall, at lis expense, comply with all trash recycling procedures in effect from time to time. Tenant shall not dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided by Landlord, and in lieu lI1ereof, Tenant shall arrange, at lis sole cost and expense, to have all such items removed from the Premises and Shopping Center in accordance with all Governmental Requirements (hereinafter defined). Secllon 6,05: WATER SERVICE, (al Landlord will initially purchase water Irorn the Riverton Water Company via at least 'our (4) melered services at four (4) meter room local/ons. Each domestic water meter will service a grouping of mall slores. A 3/4" capped valve outlet will be provided for each lenanl. If Tenant requires greater Ihan a 3/4" waler service, Landlord will furnish and Inslallll1e required waler piping and modification, at Tenant's expense. (bl landlord will divide its total water cost by gallons supplied to obtain the average water cost per gallon. Landlord will charge metered tenanls for water usage based on the average cost per gallon multiplied by melered gallons consumed. Landlord will then deduct from Ihe total water cost, the amount billed 10 metered tenants and the balance of the water costs shall be apportioned on a GLA basis among the unmetered tenants. ARTICLE 7: USE OF PREMISES Section 7.01: SOLE USE AND TRADE NAME, Tenant covenants and agrees that throughout the Rent Term. Tenant shall continuously use and operate all of the Premises for the use set forth in the Fundamental Lease Provisions and under Tenant's Trade Name set forth therein. . Tenant shall not use or permit the Premises te be used for any other purpose or under any other trade name without the prior written consent of Landlord. Tenant agrees that if Tenant or anyone else claiming through or under Tenant uses the Premises for a use or trade name not set forth in the Fundamental lease Provisions without Landlord's prior written consent, such conduct shall constitute an Event of Default. Tenant shall, at its expense, procure any and all governmental licenses and permils, including, without Iimltal/on, sign permits, required for the conduct of business In or from the Premises and shall, at all limes, comply with the requirements of each such license and permit. Landlord does not represent or warrant that It will obtain for Tenant (or that Tenanl will be able to obtain) any license or permit Section 7,02: HOURS, Tenant covenants and agrees that throughout the Rent Term. Tenant shall continuously operate, conduct its business within and otherwise use the Premises In accordance with the terms and conditions of this Lease, including, without limitation, the provisions of Seclion 7.01 hereof and all of the olher provisions of this Article 7 (unless the Premises are rendered unfit lor occupancy by reason of fire or olher casualty, In which event Article 12 shall control). Tenant will keep the Premises open for business to the public at least: (a) every Monday through Salurday Irom 9:30 a.m. until 9:30 p.m.; and (b) also on Sunday Irom 11:00 a.m. un1il6:00 p.m. (unless prohibited by jurisdictional authorities) as required by landlord. In addilion to any other right or remedy, the Break Point shall be reduced, at landlord's option, on a per diem basis lor each viotalion of the foregoing and Tenant shall pay 10 Landlord the Percenlage Rent so computed by Landlord, The perd/em reduction shall be the amount of the applicable Break Point divided by 360 for each violation. Tenant agrees that Landlord may change the foregoing business hours from time to time to reflect local custom or seasonal shopping patterns provided that such changes are uniformly applied to lI1e majority of relailtenants in Landlord's Building. Tenant shall not be required to keep lI1e Premises open during hours when the Enclosed Mall is closed 10 the public. The requirements of this Section 7.02 are subject. with respect to any business controlled by governmental regulations in its hours of operation, to the hours or operation so prescribed by 11 " such governmental regulallons and are further subject to applicable lederal, slale, and localenvironmenlal and other 1aw1, rules, or regulations, guldehnes, judgments or orders. Socllon 7,03: OPERATIONAL REQUIREMENTS. Tenant agrees thai it: (a) will not In connection With the Premises conduct or permit to be conducted any auction, fire, bankruptcy or going out of business sales, or similar type sale. or uhlize any unethical method of business: provided, however, that this proviSion shall not res~ictthe absolute freedom (as between Landlord and Tenant) of Tenant 10 delermine lis own selling prices nor shall it preclude the conduct of periodic, seasonal, promotional or clearance sales; (b) will not use or permit the use 01 any apparalus for sound and/or light reproduction or ~ansmission including loudspeakers, phonographs, radios or televisions, or of any musical Instrument In such manner lI1atthe sounds so reproduced, transmitted or produced shall be audible beyond the Interior of the Premises; will not distribute, or cause to be dls~ibuted, et the Shopping Cenler or In any part thereof any handbills or other advertising or notices; and will not conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally considered appropriate In accordance will1 standards of operation for the Shopping Cenler eSlablished by Landlord; will nol inslall any anlennae or other communication equipment on the roof of landlord's Building or anywhere on the exterior 01 the Premises; (c) will keep all mechanical apparatus free of vibration and noise which may be Iransmitted beyond the confines of the Premises: will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes, dust or vapors 10 emanale or be dispelled from Ihe Premises; (d) will noltoad or permilthe loading or unloading 0' merchandise, supplies or other property, nor ship, nor receive, oulsldethe area and entrance designated therefor by Landlord from time 10 time; will not permit the parking or standing outside of said area of trucks, trailers, or olher vehicles or equipment engaged In such loading or unloading in a manner which may interfera with the use of any Common Areas or any pedestrian or vehicular use and good regional shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading and services to lI1e Premises prior to 9:30 a.m. each day; (e) will not paint or decorate any part of Ihe exterior or interior of the Premises, or change the architecwral treatment. fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's written approval of such painl/ng, decoralion or change; and will remove promptly upon order of landlord any paint, decoration or change which has been applied to or installed upon the exterior or interior 0' the Premises without landlord's written approval; (Q will keep lI1e inside and outside of all glass in the doors and windows of the Premises clean and will replace any cracked or broken glass with glass of the same kind, size and quality: will maintain the Premises at Its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests and will use an exterminator designated by landlord and at times designaled by landlord; will not burn or permil undue accumulation of garbage, lrash, rubbish and other refuse; will (subject to Secl/on 6.04) remove the same from lI1e Premises to compactors or oll1er receplacles designated by landlord, and will keep such refuse in proper containers In the interior of the Premises until so removed from the Premises; (g) will comply with all applicable federal, stale and local environmental and other laws, rules, regulations, guidelines, judgments and orders and all recommendations of any public or private agency having authority over Insurance rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant, Including, withoutllmilations the requirements imposed by the Americans with Disabilities Act which imposes requirements relating to the design and use 0' Ii',e Premises and the requirements imposed by the Clean Air Act which imposes, among others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants; will not use or permit the use of any portion of the Premises for any unlawful purpose; and will conduct its business in the Premises in all respects in a dignified manner and in accordance with high standards of store operatlon; (h) will not, will1ln Ihe vestibule or within three (3) 'eet 01 any entrance or exit or of any window oflho Premises, or upon glass panes and supports of the show windows, or upon doors and exterior walls of the Premises, affIX, place, suspend, or maintain any signs, advertising placards, names, banners, display fixtures, insignia, trademark, descriptive materials, merchandise or any such other item or like items, except as shall be in conformity with lI1e Store Design Criteria and approved by Landlord. Anylhing placed by Tenant within the vestibule or within three (3) teet of a lease Line or of any window of the Premises shall be subject to landlord's absolute right of approval. Anything placed by Tenant within the Premises which can be seen, heard or experienced outside Ihe Premises shall be subjeclto Landlord's approval as to the size, Iype, design, content, color, copy, location, brightness, volume and display qualities. Further, Tenant agrees to maintain all such items In good condition and repair at all times. Landlord reserves the right to do so at Tenant's expense if Tenant 'ails 10 do so after five (5) days notice from Landlord. <i) will keep lI1e storefront sign and display windows In the Premises lighted during all periods that the Enclosed Mall is open to lI1e public and for one-half hour after required business hours and for such other periOdS as may be reasonably required by rules and regulations established in accordance wilh Section 7.03(k) below; Q) will provide, or cause to be provided all security within its Premises as il deems appropriate; (k) will also comply with and observe all rules and regulations established by Landlord 'rom lime to time In accordance with Section S.05; (I) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities Inconsistent with reasonable slandards of a first class shopping mall; 12 .', (m) will nol use, or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space outside of the Premises for the dis~lay or sale or offering for sale of any merchandise or for any olher business, occupation or undertaking: (n) will provide or cause to be provided within the Premises, without cost or expense 10 landlord, adequate lighting and security for its licensees, Invitees and employees during such periods as the Premises are open for business; (0) Will maintain at all times a full staff 01 employees and a complete stock of merchandISe and other goods consistent with the usa of the Premises: (p) will conduct Its business 10 maximize Gross Sales; (Q) will within ninety (gO) days belore or after the fifth (5th) anniversary of the Rent Commencement Date at Tenanfs sole cost and expense remodel the Premises. Such remodeling shall include refinishing, renewing andlor replacing lI1e floor coverings, wall coverings, lighting, ceiling, fixtures, lurnishings, equipment and other trade fixtures atll1e Premises end, In landlord's reasonable Judgment, all other work necessary to put the Premises in a slate of appearance and condition conforming to Landlord's Ihen current standards 'or relailtenants of Landlord's Building. All of the provisions of this Leasa which apply to Tenanfs Work Including, without limitation, those 'or Final Plans and Completion Certificate, shall apply 10 the remodeling: (r) will conduct its labor relations and lis relations with employees in such a manner as to avoid all strikes, picketing, boycotts or handbilling at or about the Premises and the Mall Premises. Tenant further agrees that if, during the period of any work by or for Tenant in or about the Premises in connection with such work there is a strike, picketing, boycolting, handbitling or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from Ihe Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting, handbilling or other activity ceases and Ihe cause thereof is settled to Landiord's satis'action; (s) will not, without obtaining landlord's prior written approval, which approval may be withheld in landlord's discretion, inslall any storage or propane lank, whelher above or underground, at the Premises or in the Shopping Center and if Landiord shall consent 10 such Installation, Tenant will comply with all applicable laws, regulations and underwriter requirements conceming the inslallation, operation, and closure of such tank. Upon termination 01 Ihis Lease, landlord shall havell1e option of reqUiring that Tenanl, at Tenant's sole cost and expense, perform tests relating to the condil/on of such lank and/or remove any tank inslalled by Tenant and associated contaminated material. Tenant shall be deemed lI1e owner and operator of any tank installed by Tenant. Tenanl shall relocate such tank at Landlord's request and at Tenant's expense, to another location acceptable to Landlord; (t) will, if applicable, install and properly maintain a grease trap and either a "black iron ducr, or other self. contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, 0' materials and at a location approved in advance by landlord and shall, at Landlord's option, connect to trunk facilities, if any, supplied by Landlord for same. (u) will not use the plumbing facilities for any purpose other than that for which they were constructed and will not dispose of any damaging or injurious substance therein; (v) will not inslall, or permit to be inslalled or operate any coin or token operated vending machine, game machine, pinball machine, pay telephones, pay lockers, pay toilets, scales, amusement devices and machines for the sale of beverages, foods. candy,cigarettes or other commodities, 6xcept solely for use by Tenant's employees in non sales area and not to exceed collectively two (2) machines or other devices; and (w) will not store, display, rent or sell any audio orvideo cassettes. Section 7,04: TENANrS USE OF ROOF, EXTERIOR WALLS, ETC, Tenant shall not, without having obtained the prior written consent of the Landlord, perform any work of any nature whatsoever to the roof. exterior walls or to any of the structural portions of Landlord's Building or the Premises or in areas reserved to Landlord or excluded from Tenant in the Store Design Criteria. Any damage to the Premises or any person or property occurring as a result of a breach of this provision shall be the sole responsibility, cost and expense of the Tenant. Notwithstanding Tenant's rights set forth elsewhere in this lease, Landlord may erect additional stories or oll1er structures over all or any part of the Premises, Landlord's Building and any other part 01 the Mall Premises. In connection with such erection, or otherwise, landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aids to such construction at Landlord's sole cosl and expense. Section 7,05: OPERATION OF HVAC SYSTEM. Tenant agrees, during the hours the Pr .mises is open for business, to control and/or operate as appticablethe HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant so that conditions inside the Premises are maintained within a range of 68 to 72 degrees Fahrenheit or within such range as may be prescribed by applicablegovernmenlal authorities so that heat, ventilation and cooled air are not drained from the Premises or the Enclosed Mall. Section 7,06: EMPLOYEE PARKING AREAS, Landlord may, 'rom time to time, designate that particular portions of the ShoppinS Center parking areas (the "Employee Parking Areas") are to be used by Tenant and its employees, or other individuals working at or from the Premises. If Landlord does so, Tenant and its employees shall park their vehicles only in the Employee Parking Areas, Tenant shall furnish Landlord with a list ofTenant's and employees' vehicle license numbers will1in fifteen (15) days after Tenant opens for 13 ." business In the Premises, and at Landlord's request, the Tenant shalllhereafter notify Landlord in writing of any addition, deletion or other change '.J or from such list wilhin five (5) days after Landlord makes such request. Tenant shall nol/fy each employee in wrll/ng of lI1e provisions of Ihis Section 7.06 prior to each employee commencing employment or work alar from the Premises. II Tenant or any 01 its employees do not park lI1eir vehicles in lI1e employee Parking Areas, Landlord may give Tenant notice 01 such violation. "Tenant does not cease such violation, or cause such violation by Ihe employee to cease,. as the case may be, will1in two (2) days after landlord's notice of violation is given, Tenant shall pay to landlord, as Additional Renl, an amount equal to Twenty Five Dollars ($25.00) per day per violating vehicle. For any subsequent violations, said Twenty Five Dollars ($25.00) per day per vlolaling vehicle charge shall commence without the necessity of further notice, and Landlord shatl, in addition, have the righlto have the violating vehicies lowed al Tenant's expense. Section 7,07: NON.COMPETITION COVENANT, Tenanl covenant> and agrees with landlord Ihatlhrough Ihe Term, neither Tenant or any "Affiliate of Tenanr' (hereinaner defined) shall directly or indirectly own, operate or manage or have a financial Interest In any business which Is similar to that of Tenanl or which sells or displays, directly or indireclly, merchandise or other goods, or services, similar 10 1I10se sold or offered or displayed by Tenanl at or 'rom the Premises (lI1e "Competing Store") within five (5) miles from Ihat properly line ofll1e Shopping Center nearest to lI1e Compeling Store (the 'oregolng covenant being hereinafter called ''Tenenl'. Non"Competltlon Covenant"). "AlfIllate of Tonanl" means a proprlelorshlp, corporation, partnership, unincorporated association or other person or entity "controlling", "controlled" by or under common "conlrol" with Tensl1t. The words "controlling", "controlled" and "control" shall have the meanings given them under the Securities Exchange Act of 1934, as amended. If the Tenant's Non-Compelillon Covenant is violated, lI1en, in addition to all olher rights and remedies, Landlord shatl have the right to add the "gross receipts of lI1e Competing Store" (hereinafter defined) to the Gross Sales made by Tenant hereunder for the purpose of computing Percentage Rent. The phrase "gross recetpts of the Compellng Store" shall be determined by applying Ihe definition of Gross Sales at Section 4.05 10 transactions of the Competing Slore. Tenant shall include the address and identity of its business al the Premises in all advertisements made by Tenant in which the address and idenlily of any similar local business of Tenanl is mentioned and shall nol divert 'rom the Premises any transactions or other business Which would occur at or from the Premises. ARTICLE B: COMMON AREAS; INSURANCE COSTS Section 8.01: USE OF COMMON AREAS, (al Tenant and its employees and invitees are, except as otherwise specifically provided in this Lease, authorized, empowered and privileged during the Term to use the Common Areas for their respective intended purposes in common with ether persons. Tenant's right to use any meeting room or auditorium, if any, in the Common Areas shall be subject to such schedules and paymenl of such fees or charges therefor as Landlord may from time to time adopt governing Ihe use thereof. (b) landlord shall at all times have Ihe right to utilize lI1e Common Areas including, withoutlimilation, the Enclosed Mall for promotions, exhibits, carnival type shows, rides, ouldoor shows, displays, automobile and olher shows or events, the leasing or licensing of kiosks, push carts and food facilities, landscaping, sealing areas, seasonal displays, decorative items. and any other use which, in landlord's judgment, tends 10 attract customers to, or benefit the customers of the Shopping Center. Section 8,02: COMMON AREA MAINTENANCE SUM, (a) The term "Common Area Malnlenance Sum" (or the "CAM Sum") shall be charged and proraled in the manner hereinafter set forth 'and shall mean all sums incurred in a manner deemed by landlord to be reasonable and appropriate and for lI1e best interests of Ihe Shopping Center in connection with the operation and maintenance of the Common Areas and the Shopping Center (and any additions thereto), including, wilhoutlimitation, the costs and expenses of. (i) operation or maintenance of the storm and sanitary facilities, ail water and sewer service suppiled individual tenants, electrical, gas, steam, water, chilled water and teiephone systems, lighting system (including poles, bulbs, and fixtures), other utility systems; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both on and off site; ducts, conduits and similar items: (ii) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and repaving all parking surfaces, services areas and other portions of the Common Areas; <iii) operation or maintenance 01 ail heal/ng, ventilating and air cooling and other utillly systems, emergency water and sprinkler, securily, life sa'ely syslems, pumping systems, electrical systems and all escalator and elevator systems and any olher items, facilities, equipmant, and systems. furnished by landlord as part of the Common Areas; (iv) premiums and other charges for insurance to the extent provided by landlord, Including without limitation, i1abllity insurance for personal and bodily injury, workers' compensation; plate glass insurance for glass exclusively serving the Common Areas; boiler insurance (if carried); Landlord's risk management expenses and rent insurance provided by landlord pursuanl to Section 11.02; . (v) operation or maintenance of gazebos, fountains, art features, sculptures, fencing and similar items located within lI1e Common Areas and Interior and exterior planting, replanting and replacing 01 all fiowers, shrubbery, plants, trees and other landscaping within the Common Areas; (vi) operation or maintenance of landlord's Building's structure, including, without limitation. floors, doors, wails, ceiling, roofs, skylights, and windows; '. (Vii) maintenance and depreciation of all machinery and equipment used in the operation or maintenance of Ihe Common Areas (including but not limited to ail escalators, elevators and oll1er verticallransportatlon (if any), securily vehicles and equipment) and all personal property taxes and other charges incurred in connection with such machinery and eqUipment; (viii) all license and permit fees, and any and ail parking surcharges that may result from any environmental or other laws, rules, regulations, guidelines or orders; 14 ", (ix) the expense 01 InSlallal/on and operation of loudspeaker systems, music program services, cable television systems. or similar audio or video transmission systems: (x) personnel, including without limitation, cleaning and maintenance personnel, landlord's on.site management slaff (Which includes the General Manager, Asslstanl Manager, secrelaries and bookkeepers) together with the unl'orms, payroll, payroll taxes and employee benefits of all such personnel; (xl) the expense of security personnel and equipment, including, without limitation, unl'orms as well as transpor1ation and surveillance equipment; (xii) ell expenses Incurred by Landlord at the same rate per unit Landlord charges to tenants, in connection with reluse disposal, waler and sewer, gas, steam, exterior sitelighl/ng, electricily, air conditioning, heating, and other utilities, including, without limitation, any and all usago. service, hook.up, connaclion, ava,labilily andlor standby lees or charges per1alningto same; and (xlii) Landlord's supervisory charge in an amount equal to fifteen percent (15%) olthetotal aggregate cosl of operating and malnlainlng Ihe Common Areas, including but not limited to those things lisled in Section S.02(a), (b) Notwithstanding the foregoing, the CAM Sum shall not Include: (I) Ihe expense 0' any repair or replacemenl required 0' Landlord pursuanl 10 Ihe reconstruction obligations of Section 12.01; (i1) depreciation (other than depreciation as above specified); and (iii) any utilities which are directly metered, submetered or otherwise payable direclly by tenants In landlord's Building. (c) Notwithstanding anylhing conlained in this Lease 10 the contrary, In calculating Ihe "CAM Charge" (defined in Section S.03), Ihe CAM Charge may be based upon Landlord's estimates, which estimates and paymenls lI1ereon shall be subject to adjustments In 'uture billings to Tenant based on Landlord's actual cost, It being underslood and agreed that In determining actual cosls, landlord In its sole discretion, will make allocations of certain items between Ihe Enclosed Mall and oll1er por1ions of the Shopping Center of which the Enclosed Mall is a part, which need not be based on relative size or use, (d) Landlord may cause any or all maintenance services 'or the Common Areas to be provided by an Independent contractor or contractors or others and the costs there'or shall be included in the CAM Sum. Except as provided hereinabove, none of the costs for Ihe original construclion and installation of the Common Areas shall be included In the CAM Sum. (e) II landlord from time 10 time acquires, or makes available, additional land or improvements lor parking or oll1er Common Area purposes, the CAM Sum shall also include all cosls and expenses incurred by landlord in connection with lI1e operation or maintenance of said additional land and improvements. (Q The words "maintenance", "maintain" or "maintaining" as used in this Article B Includes, without limitation, all repairs, replacements and other work and service of any type whatsoever. Tenant shall pay to landlord, as Additional Rent, Tenant's share of Ihe CAM Sum In the manner sel forth in Section S.03(b (c) below. Tenant's share of lI1e CAM Sum 'or each calendar year shall be an amount equal to the CAM Sum for that period . lied by the GLA Fraction (the "CAM" Charge"). For any Partial Year, lI1e CAM Sum will be multiplied by the Partial Year Fracti Ith the resull multiplied by the GLA Fraction. ' (b) on the Renl Commencement Date and on Ihe first day 0' each calendar month in lI1e Term thereafter amounts estimated by lord to be Tenanfs monlhly share of the CAM Sum. Landlord may adjust said amounl at the end 0' any calendar month on th sis of Landlord's experience and reasonably antlclpaled costs. (c) Following the end of each calendar year, Lord shalllurnish Tenant a slalement covering the calendar year just expired, certified as correct by an independent public aceD nt or an authorized representative of Landlord, showing lI1e CAM Sum and the amount of lI1e CAM Charge and the payments e by Tenanl with respect thereto as set forth In the preceding Section S.03(b). II Tenant's aggregate monthly payments on acco 0' the CAM Charge are grealer than Tenant's share of the CAM Sum, Tenant shall receive a credit for Ihe excess against m Iy installments on account of the CAM Charge next becoming due to Landlord; If said payments are less Ihan said share, Tena hall pay to Landlord the difference forthwith. (d) Landlord may have hereto'ore elected 10 spread, and may hereafter elect to spread, amount 01 any of Ihe expenses of the CAM Sum over such period of years as landlord shall determine by amortizing them over s periodS Inslead of Including such expenses entirely in the year in which expended or Incurred, in which event, the annual amo tlon amount shall be deemed 10 be an expense Incurred during each year of the amortization period, notwithstanding that suc~ enses '..ayl.av.... beC:II <!:xpended or lAmmed prier Ie tAe 9X9CUtlO . " Section 8,04: CHANGES BY LANDLORD. As between landlord and Tenant, Landlord shall at all times have lI1e right and privilege of determining lI1e nature and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and thereto from lime 10 lime which in its opinion are deemed 10 be desirable or which are made as a result of any federal, slale or local environmenlal or other law, rule, regulalion, guideline, judgment or order, inclUding but nollimiled 10, Ihe location, relocation, enlargement, reducement or addition of driveways, entrances, exits, automobile parking spaces, employee and customer parking areas (if any), the direction and flow of traffic, Installation 0' prohibited areas, landscaped areas, and any and all oll1er facilil/es 0' the Common Areas. Landlord (or others enlilled to) may ftom time 10 time make alterations, reduclions, or additions anywhere within Landlord's Building or to Ihe Common Areas or other part 0' the Shopping Center or any lands or improvements added thereto, construct additional buildings or improvements on the Common Areas or elsewhere and make alterations thereto, build additional stories on any buildings, conslruct multi-level or elevated or underground parking facilities, 15 '. and construct rocf, walls, and any other Improvements over, or in connection with any part of, or aU a', the Common Areas In order to enclose same. Section 8,05: RULES AND REGULATIONS, Tenant agrees that Landlord may establish and Irom lime to lime change, aller and amend, and enforce against Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for Ihe proper and efticlenl use, operation and maintenance of the Common Areas, provided lI1al all such rules and regulation. affecting Tenanl and its Invitee. and employees shall epply equally and withoutdiscrlmlnal/on to subslantially all 0' the relaillenanls In landlord's Building or subslantially all relailtenants engaging In certain acls or of a certain use. The rules and regulations herein provided for may include, but shall not beUmited to, the hours during which Ihe Common Areas shall be open for use. Section 8,08: LANDLORD'S MAINTENANCE AND CONTROL, landlord agrees to malnlain and operale, or cause 10 be mainlained and operated, the Common Areas in good and reasonable condition and manner. landlord shall, as between landlord and Tenant, al all times during the Term havell1e sole and exclusive control, manegement and direcllon 0' the Common Areas, and shall provide or cause to be provIded, security 'n Ihe Common Areas at a level delermined by landlord (and Tenanl shall provide, or cause to be provided, adequate security within Tenant's Premises as Tenant deems appropriale). landlord may at any time and 'rom time to time during the Term exclude and restrein any person ~om use or occupancy 01 any 01 the Common Areas, excepting, however, Tenant and olher tenanls of Landlord and bona fide Invltees 01 either who make use of said areas for their inlended purposes and In accordance with Ihe rules and regulaUons eslablished by landlord from time 10 I/me with respecllherelo. The rights of Tenant in and to the Common Areas shall at aU times be subjeclto the rig his of others to use the same In common with Tenanl, and it shall be the duly 01 Tenant to keep ell of the Common Areas Iree and clear 01 any obslructions or Interferences created or permitted by Tenanl or resulting ~om Tenant's operation. landlord may at any time and ~om lime to lime close all or any portion of Ihe Common Areas 10 make repairs or changes, or to such extenl as may, in the opinion of Landlord, be necessary 10 prevent a dedication thereof or Ihe accrual 01 any rlghls to any person or to the public therein, to close temporarily any or all portions of Ihe Common Areas and to do and perform such other acts in and 10 Common Areas as, In the exercise of good business jUdgmenl, Landlord shall determine 10 be advisable with a view to the Improvement of Ihe convenience and use thereof by occupants and tenanls, their employees and Invitees. Section 8.07: COST OF LANDLORD'S INSURANCE, For each Year of lI1e Rent Term hereol, Tenant shall pay to landlord, as additional rent, Tenanl's share of all premium costs for fire and broad form all risks extended coverage Insurance and renl insurance respecting all of landlord's Buildings and improvements upon the Shopping Center, mulliplied by the GLA Fraction, payable monll1ly, If Tenant's share 01 lI1e aclual cost of such insurance for any Year exceeds said annual Insurance charge actually paid by Tenant for such period, within ninety (gO) days after the end of Year, Landlord will deliver 10 Tenanl a slalement showing in reasonable detail Tenanl's share of such acluallnsurance costs and, within twenty (20) days after delivery of such stalemenl, Tenant will pay such excess shown 10 be due by said slatement, as additional rent (subject to adjustment as set forth below). The slatement submitted by landlord shall be sufticienlevidence 01 the actual insurance costs. At anytime cosls will exceed the monlhly installments then due 'rom Tenant hereunder, Landlord may adjustlhe amount 0' the monthly installments thereafter due Irom Tenant on account of lis share 0' the costs of insurance by increasing such installments by an amount equal 10 one.twelfth (1112th) of the excess, jf any, of Tenant's estimated share of such costs over the annual insurance charge then due hereunder. ARTICLE 9: MERCHANT'S ASSOCIATION Section 9,01: MERCHANT'S ASSOCIATION, Tenant shall join and maintain membership in the Merchant's Association rAssociation"} authorized and recognized by Landlord and established by the tenants in the Shopping Center. Tenant shall pay 10 the Association each Year such reasonable assessments as may be fixed from lime to time by the Association for creating and maintaining a fund to be used by the Association for general promotional, advertising and welfare purposes, Including any assessments or dues for advertising, publicity and general public relations. Tenant will comply will1 such by laws, rules and regulations as may be adopted from time to time by said Association and lake such action as shall from time 10 time be necessary to remain in good slanding in the Association. Tenant agrees 10 use Ihe name 01 the Shopping Cenler prominently in all of Its advertising and promol/onalliterature regarding the Premises. Section 9,02: BY LAWS, Tenant agrees that the by laws of Ihe Association shall provide: (a) each member which Is present at a meeting and nol delinquenlin any of ils payments to the Association shall have one vote for each square fool 0' ftoor area in its Premises, (b) each delinquent member shall be liable to the Association for ils costs (Including allomey's lees) Incurred in collecling such membe~s delinquent debls to the Association, (c) landlord shall have a number of votes equal to Ihe lesser 0' twenly.five (25%) percent 01 lI1e lotal 0' all Vales in the Association Including the votes of landlord or Ihe percentage which Landlord's conlributlon to the Associallon 'or the association year bears 10 the lotal amount of all dues payable to lI1e Associalion for such association year (d) Ihe landlord, as agent for the Association, may, at its option, collect all assessmenls due including delinquent assessmenls or deslgnale another party to do so, Ce) landlord may, at lis option, elect to provide the Association with the services of a promotion director and all slaff deemed necessary by landlord to effectively carry out the promotion and public relations objectives of the Association and/or such reasonable space within Ihe Shopping Cenler as may be necessary to carry outlhe functions 0' the promotion director and 16 hIS or her staff and the Association shall reimburse Landlord for such, and (Q Landlord may provide that the occupant of any Major shall have a seat on the Board of Directors. Furthermore, no by law, rule or regulation 01 the AssociaUon shall connlct with the provisions of this Lease, and more particularly with any rules and regulaUons adopted by Landlord or In any respect diminish the rights of landlord hereunder. Secllon 9.03: DISSOLUTION OF MERCHANT'S ASSOCIATION. Tenant agrees that Landlord shall have the unilateral right to take any steps required to terminate the AssoclaUon and to replace lI1e same with a marketing service, promotion fund, advertising fund, or any other similar entity designated by Landlord in which event, upon notice to Tenant, Tenant shall automatically be deemed a member thereof and shall conlribute to the same the amount which Tenant Immediately prior to such termination was required to contribute to the Association. Further, Tenant does hereby Irrevocably assign to Landlord all of Tenant's voling rights contained in any by.law or other similar document forming or governing the adminlslration of any such Association, to enable Landlord to vote in favor of such termination. ARTICLE 10: CONSTRUCTION WORK Secllon 10,01: APPROVALS AND STANDARDS, Tenant shall not perform any construction Of make any alterations or changes in or to the Premises at any time during the Term (herein sometimes collectively called "Conetrucllon Work") without Landlord's prior written consent. In no event shall Tenant make or cause to be made any penetration through any roof, floor or exterior or corridor wall without the prior written consent of Landlord. Tenant shall be directly responsible for any and all damages, including, without limitation, damages to Landlord's Building, the Premises and the premises of other tenants in landlord's Building resulting from any of Tenant's Construction War/<, whether or not Landlord's consent therefor was obtained. Any and all Construction Work which is consented to by Landlord shall be perlormed in accordance with (a) plans and specifications prepared by a licensed architect. or engineer and approved In writing by the Landlord before the commencement of the Construction Work, (b) all necessary govemmental approvals and psrmits, which approvals and permits Tenant shall obtain at its sole expense, and (c) all applicable laws, rules, regulations and building codes relating thereto. All Construction Work shall conform to Landlord's Store Design Criteria and shall be perlormed in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at all times be a complete unit except during the period of the Construction Work. Any Construction Work perlormed by Tenant without Landlord's consent shall be returned to its original condition at Tenanrs expense upon request by Landlord. Tenant shall perlorm any Construction Work in such a manner as not to obstruct the access 10 the premises of any other occupant to the Enclosed Mall nor obstruct other Common Areas. Section 10,02: INSURANCE AND RECONSTRUCTION. In the event Tenant shall perform any permitted Of required Construction Work, none of the Construction Work need be insured by Landlord under such insurance as landlord may carry upon the Landlord's Building nor shall Landlord be required under any provisions of this Lease relating to reconstruction of the Premises to reconstruct or reinstall any such Construction Work. ARTICLE 11: INDEMNITY AND INSURANCE Section 11,01: TENANT'S INSURANCE. (a) Tenant further covenants and agrees that from and after the dale of delivery of the Premises from Landtord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for: (i) Commercial General Uabilitv Insurance. Commercial general liability insurance covering the Premises and Tenants use lI1ereof against claims for personal and bodily injury or death, propeny damage and product liability occurring upon, in or about the Premises, such Insurance to afford protection to the limit of not less than $3,000,000 In respect of properly damage and bodily or personal injury or death to any number of persons arising out of anyone occurrence. The Insurance coverage required under this Section 11 .01(a)(i) shall, in addition, extend to any liability of Tenant arising out of the indemnities providod for In Section 11.03. The general aggregate limits under the liability Insurance policy or policies must apply separately to the Premises and to Tenant's use thereof. The certificate of insurance evidencing the commercial general liability form of: policies shall specify on the face thereof that. the limits of such policies apply separately to the Premises. . (i1) Boilers, Boiler and machinery insurance in adequate amounts on all fired objects and other fired pressure vessels and systems serving the Premises (if any); and if the said objects and the damage that may be caused by them or result from them are t10t covered by Tenant's extended coverage insurance, then such insurance shall be in an amount not less than $250,000 and be Issued on a replacement cost basis. (i1i) Tenant Leasehotd Improvements and Property, Insurance covering all of the items Included In Tenant's leasehold improvements, heating, ventilating and air conditio,nlng equipment and all other improvements and betterments installed by (or demised by this Lease to) Tenant, and all trade fixtures, merchandise and personal properly from time to time in, on or upon the Premises, and alterations, additions or c.hanges made by Tenant pursuant to Article 10; In an amount not less than one hundred percent (100%) of their full replacement cost from time to time during the Term, providing special form coverage, Including but not limited to, protection against the perils Included with the slandard state form of fire and broad (orm extended coverage insurance policy, together with insurance against sprinkler damage, vandalism and malicious mischief. Any policy proceeds from such insurance shall be held in trust by Tenant's insurance company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless thls'Lease shall cease and terminate under the provisions of Article 12. . (iv) Workers' Compensation And Employer's Liability, Workers' Compensation and Employe(s 17 ." llabilily IrlSurance affording statutory ".,.rage and containing statulory limits wilh the Employefs Llabilily portion thereollD have minimum limits 0' $1,000,000.00. (v) Busln...lnterruptlon Insurance, Business Interruption Insurance equal to not less than fifty percent (50%) of Ihe estimated gross earnings (as defined In Ihe standard slale form of business Interruplion insurance policy) of Tenanl at the Premises which insurance shall be Issued on an "all risks" baSiS (or its equlvalenl). (b) All policies 01 insurance provided for in Section 11.011a) shall be issued by Insurance companies with a financial rating of not less than A as rated in the most currenl available "Best's Insurance Reports", and qualified to do business in Ihe slate In which landlord's Building is located. Each and every such policy, except 'or Workers' Compensation and Employefs liability insurance: (i) shall be Issued In lI1e name of Tenant and shall name as an addil/onal insured each of Landlord, Agent and any olher parties In interest from time 10 time designated In wriling by nolice Irom Landlord to Tenant; (ii) shall be 'or the mutual and joinl benefit and prolection of landlord and Tenanl and any such other parties In inlerest; (Iii) shall (or a certificate thereof shall) be delivered to each of landlord and any such other parties In interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate. Renewal or addillonal policies shall be procured and maintained by Tenant in like manner and to like extent, (iv) shall contain a provision thallhe insurer will give to landlord and such other parties in interest at least II1lr1y (30) days notice in writing in advance of any malerial change, cancellation, lermination or lapse, or the effective dale of any reduction in the amounts of Insurance: (v) shall be written as a primary policy which does not contribuleto and is not in excess of coverage which Landlord may carry; and (vi) shall conlain a provision that Landlord and any such other parties In interest, although named as an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents and employees by reason 0' the negligence of Tenant. (c) Any insurance provided 'or in Section 11.01(a) may be mainlained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds, provided, however, that: (i) Landlord and any other partie. in interest 'rom time to time designated by Landlord to Tenant shall be named as an additional insured thereunder sa its interest may appear: (ii) lI1e coverage afforded Landlord and any such other parties in interesl will not be reduced or diminished by reason 01 the use of such blanket pOlicy 01 Insurance; (iii) any such policy or policies [except any covering Ihe risks referred to in Section 11.01(a)(i)] shall specify lI1erein (or Tenant shall fumish Landlord with a written stalement Irom the insurers under such poticy specifying) the amount of the total insurance allocated to the Tenant's improvements and property more specifically detailed in Section 11.01(a)(III); and (Iv) the requiremenls set lorth in Ihis Article 11 are olherwise satisfied. (d) Tenanl agrees to permit landlord at all reasonable times to inspect the policies 0' insurance of Tenant with respect to the Premises for which policies or copies thereof are not delivered to landlord. Section 11,02: LANDLORD'S INSURANCE, (a) landlord shall at all limes during the Term carry and maintain the following types 0' insurance in lI1e amounts specified and in the ferm hereinafter provided for: {I} Commercial General Uabilitv Insurance. Commercial general liability insurance against claims for properly damage and bodily Injury or dealh and property damage, such insurance to afford protection to the limit 0' nolless than $5,000,000 in respec1to properly damage, injury or dealh to any number of persons arising out of anyone occurrence. (ii) Landlord's Real and Personal Property, Insurance covering the landlord's Building [exclusive of any tenant improvements and betterments and properly required to be Insured by Tenanl pursuant to Section 11.01(a)(Iii)] in an amount not less than one hundred percent (100%) 0' full replacement cost (exclusive oflhe cost of excavations, foundations and 'ootings), 'rom time 10 time during the Term, providing protection against perils included wilhin Ihe standard slate form of fire and extended coverage insurance policy, together with Insurance against sprinkler damage, vandalism and malicious mischlel, and such olher risks as Landlord may Irom time to time determine and with any such deductlbles as Landlord may from time to time determine, (Iii) Renllnsurance, Rent insurance with respect to the premises of the tenants in the Shopping Center II available at a cost which landlord in its sole judgment deems reasonable, against loss 0' rents in an aggregate amount equal to not morelhan twenty.four (24) times the sum of (i) the monthly requirement of Minimum Rent of such lenants, plus (II) the average monthly amount estimated 'rom time to time by Landlord to be payable by such tenants as Percenlage Rent and as Additional Rent pursuant to their leases. (b) Any insurance provided for in Seclion 11.02(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insureds provided that the requirements of Section 11;02(a} are ottlerwlse satisfied, (c) Tenant shall have no rights In any policy or policies maintained by landlord and shall not be entitled to be named an Insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the insurance provided for in this Section 11,02 or otherwise. Section 11,03: INDEMNIFICATION BY TENANT, Tenant agrees that Landlord shall not be liable 'or ony damage or liability 0' any kind or for any injury to or death of 1S persons or damage 10 property of Tenant or any other person during the Term, lor any cause whatsoever (Inctuding without limitation lI1e acls or omissions of Landlord or Agent, bursting pipes and smoke) by reason of the construction, use, occupancy or enjoyment of the Premises by Tenant or any person Iherein or holding under Tenanl or happening upon or about the Premises and Tenant for the purposes of this Section 11.03 shall be deemed to be In exclusive control of the Premises during the Term. Tenant does hereby agree to and shall protecl, de'end, indemnify and save harmless Landlord and Agent Irom all claims, actions, demands, costs and expenses and liability whatsoever, including reasonable atlorney's lees, on account of any such real or claimed event, damage or liability, and from "" liens, claims and demands arising from any occurrence in, or about the Premises, or arising out of lI1e construction, use, occupancy or enjoyment of the Premises, or occasioned In whole or In part by any act or omission of Tenant. its agents, contractors, servants, employees or invitees. Tenant shall nol. however, be liable for damage or injury occasioned by lI1e wiliful act of the landlord which is lI1e cause of damage or injury unless Tenant Is required by this lease to assume or Insure against such damage or injury. Section 11,04: MUTUAL WAIVERS, Landlord and Tenant hereby waive any rights each may have against the other on account of any toss or damage occasioned to landlord or Tenant, as the case may be, their respective property, the Premises, its contents or to the other portions of Landlord's Building, arising from any risk covered by fire and extended coverage Insurance, and to the extent of recovery under valid and collecl/ble policies 01 such Insurance, provided that such waiver does not invalidate such policies or prohibit recovery thereunder, The parties hereto each, on behalf of their respective Insurance companies Insuring the property of either Landtord or Tenant agalnsl any such loss, waive any right of subrogation Ihat such Insurers may have against Landlord or Tenant. as the case may be. Section 11,05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS, Subject to Landlord's obtigations in Section 13.0110 maintain the structure of the Premises, Tenant agrees at its own expense to comply wlll1 all Govemmental Requirements (hereafter defined) as well as the recommendations and requirements, with respect to the Premises. or its use or occupancy, of the insurance underwriters or insurance rating bureau or any similar public or private body and any governmenlal authorily having jurisdiction with respect to the use or occupancy of Landlord's Building, including, but not Iimiled to, Installation of fire extinguishers or automatic detection, suppression systems andlor life- safety systems, any changes, modifications or alteraUons in the detection and/or suppression systems or additional detectors andlor sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premises. landlord shall not materially change the dimensions of the Premises or materially affect access 10 the Premises from the Landlord's Building unless required to make any such changes by reason of any federal, state or local environmental or other law, rule, regulation. guideline, judgment or order (collectively "Governmental Requirements"). Section 11,06: EFFECT ON LANDLORD'S INSURANCE, Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about the Premises which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which wili prevent Landlord from procuring such policies in companies acceptable to Landlord at regular rates or which will in any way cause an increase In the insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in the firsl sentence of this Section 11,06, Landlord may, without notice to Tenant, con'ect the same at Tenant's expense. Tenant shall pay to Landlord as Additional Rent forthwith upon demand the amount of any increase in the premiums for insurance resulting from any violation ofthe first sentence of this Section 11.06, even if Landlord shall have consented to the doing of or the keeping of anyll1ing on the Premises which constituted such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of Ihe first sentence 01 this Section 11.06). Section 11,07: LIMIT OF LANDLORD'S RESPONSIBILtTY. Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying space adjoining the Premises or any other part 01 the Shopping Center or Landlord's Building, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property within the Premises from any cause whatsoever. Such limitation of responsibility and liability shall not, however, appiy to landlord's willful acts, except to lI1e extent such willful acts are waived or reieased by Tenant pursuant to Sections 11.03 or 11.04. ARTICLE 12: DAMAGE OR DESTRUCTION Section 12,01: LANDLORD'S DUTY TO RECONSTRUCT, In the event the Landlord's Suildlng is damaged or destroyed by any of the risks re'erred to in Section 11 ,02(a)(li) against which Landlord Is obligated to procure insurance, Landlord shall (subject to being able to obtain all necessary permits and approvals therefor, including without limitation permits and approvals required from any agency or body administering environmental laws, rules or regulations), within one hundred twenty (120) days after such damage or destruction (unless Landlord terminates this Lease pursuanlto Section 12.03), commence to: (a) repair or reconstruct Landlord's Building and (b) repair or reconstructll1e structural floor slab, demising wall studs (without drywall) and roo' (or floor slab above) as lI1e case may be of the Premises. Landlord shall prosecute all such work diligently to completion. In no event shall Landlord be liable for Interruption to Tenant's business or for damage to or repair or reconstruction of any of those things which Tenant is required 10 insure pursuant 10 Section 11.01(a)(iii), nor shall Landlord be required to expend more for any repair or reconstruction pursuant to this Section than the net amount of insurance proceeds actually received by Landlord and allocable to the Premises on a square foot basis. 19 Soctlon 12,02: TENANT'S DUTY TO RECONSTRUCT. II any item which Tenant Is required 10 Insure pursuant 10 Secllon 11.01(a)(lii) is damaged or deslroyed by fire orolher casualty, Tenant shall (subjecl to being able to obtain all necessary permits and approvals Ihere'or, Including wilhoutlimltallon permits and approvals required Irom any agency or body admlnlslering envlronmenlallaws, rules and regulations), within fifteen (15) days after landlord has subslantially repaired or reconslructed landlord's Building and the portion 0' Ihe Premises Landlord is obllgaled to repair or reconslrucl pursuanllo Section 12.01 (unless landlord terminates Ihis lease pursuant to Section 12.03), commence to repair or reconstruct such damaged or destroyed Items 10 atleasl substantially Ihe same condition in which they were prior 10 such damage or deslructlon and prosecute the same diligently to compietlon. Section 12,03: LANDLORD'S RIGHT TO TERMINATE. (a) landlord shall have Ihe option 10 termlnale this lease upon giving wflllen notice 10 Tenanl 01 Ihe exercise thereof within one hundred twenty (120) days ailer the landlord's BUilding is damaged or destroyed If: (i) the Premises are rendered wholly unfit for carrying on Ihe Tenant's business ailer damage to or destruction thereof from any cause; or (Ii) landlord's Building is damaged or deslroyed as a result of any fiood, earthquake, act of war, nuclear reaction. nuclear radiation or radioactive contamination, or from any other risk not covered by insurance which Landlord Is obligated 10 procure pursuant to Seclion 11.02(a)(i1); or (iiI) any damage to or destruction of landlord's Building occurs wilhin the last three (3) Years of lI1e Term or in any Partial Year at the end 01 Ihe Term; or (iv) fifty percent (50%) or more 01 the GLA in Ihe landlord's Suilding immedlalely prior 10 the damage or destruction is rendered unfit for carrying on business thereIn; or (v) Landlord's Building Is so substantially damaged Ihat it is reasonably necessary, in Landlord's judgment. to demolish Ihe same for the purpose of reconslruction. (b) Unless so terminated, this lease shall continue in lull force and effect, and landlord and Tenant shall per10rm their respective obligations under Section 12.01 and 12.02. Upon any termination oflhis lease under any 0' Ihe provisions 01 this Section 12.03, the Renl shall be adjusted as 01 the date of such termination and Ihe parties shall be released 'rom ail liability hereunder upon the surrender of possession of the Premises to the Landlord, except for items which have been theretofore accrued and are then unpaid. Section 12,04: ABATEMENT OF RENT, If this Lease is notlerminated by Landlord pursuant 10 Section 12.03 after damage or destruction 0' the landlord's Building, and if the Premises are rendered wholly or partially unfit 'or carrying on Tenant's business by such damage or destruction, then the Minimum Rent and the Additional Rent payable by Tenant under this lease shall be abated, and the applicable Break Point and Partial Year Break Point (as Ihe case may be) shall be reduced in direct proportion to the percentage 01 the GLA in the Premises which is rendered unfit for Ihat period 'rom Iha date the Premises are so rendered unfit until the earlier 01 sixty (60) days after landlord re-delivers possession of the Premises 10 Tenant or Ihe date Tenant reopens for business. ARTICLE 13: MAINTENANCE OF PREMISES Section 13,01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE, landlord will keep lI1e roo', exterior face 01 service corridor walls, slructural columns and struclural fioor or floors which enclose the Premises (excluding noor coverings, such as carpeting, terrazzo and other special flooring, walls installed at the request of Tenant, doors, windows and glass) in good repair subject to the provisions of Article S. Notwithstanding Ihe 'oregoing provisions of this Section 13.01, landlord shall not In any way be liable to Tenant unless Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord fails to commence making such repairs within a reasonable period thereafter, and provided thaI any damage necessitating such repairs shall not have been caused by the omission, neglige~ce or willful act of Tenant, its concessionaires, invitees, officers, employees, licensees or contractors or by the failure of Tenant to perform any 0' its obligations underthls lease (in either 0' which events Tenant shall be responsible therefor) or have been caused to any of the items Tenant Is required to insure pursuant 10 Article 11. Landlord shall be under no liability for repair, maintenance, alteration, improvement, reconstruction, renewal or any other action with respect to the Premises or any part thereof, or any plumbing, electrical, heating, ventilating, air conditioning, or other mechanical installation therein, except as may be expressly set forth in this Lease. Secllon 13.02: TENANrS DUTY TO MAINTAIN PREMISES, Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at its own cost and expense, mainlain and make all needed repairs, and do all olher work 10 or for the Premises and every part thereof 10 render the same in good and.lenanlable condition. Tenant's obligation under this Section 13.02 shall Include, but not be limited to, repairing, replacing and otherwise maintaining items as are required by any governmental agency having jurisdiction thereof (whelher the same is ordinary or extraordinary, foreseen or unforeseen), walls (other than the exterior face of service corridor walls), ceilings, plate glass, utility meters, pipes and conduits outside the Premises which are installed by or demised to Tenant or Which exclusively serve the Premises, all fixtures, heating, ventilating and air condilioning equipment installed by or demised to or used soleiy by Tenant, if any (whether such heal/ng ventilating and air conditioning equipment Is localed Inside the' Premises, between the ceiling and the roof or on Ihe roo' of landlord's Building), sprinkler equipmenl and other equipment within the Premises, the storefront or storefronts, all of Tenanrs signs, security grilles or similar enclosures, locks and closing devices, and all window sash, casemenl or 'rames, doors and door frames; provided that Tenant shall make no adjustment, alterallon or repair 0' any part of any sprinkler, life safety or olher detection or suppression syslem in or serving the Premises without Landlord's prior approval. Tenant shall permil no waste, damage or injury 10 Ihe Premises and Tenanl shall Initiate 20 and carry out a program of regular repair and other maintenance 01 Ihe PremISes, including the painting or refinishing of all areas of the Inle"or and the storelront as approved by Landlord, so as 10 Impede, to the exlent possible, deterioration by ordinary wear and tear and 10 keep Ihe same in allractive condition. Tenant will nol overload Ihe eleclrlcal wiring or olher syslems serving the Premises or within the Premises, and will inslall al i1s expense, but only after obtaining landlord's written approval, any additional electrical wiring or other Items which may be required In connection with Tenant's apparatus. Section 13,03: RIGHT TO ACCESS TO THE PREMISES, landlord and its authorized representative may enter the Premises at any and all times during usual business hours for the purpose of Inspecting the same (and at all olher limes in the case 01 emergency). Tenant lurther agrees that landlord may Irom time 10 time go upon the Premises and make any additions, alterations, repairs or replacements and do other work to the Premises or to any utilities, systems or equipmentlocaled In, above or under the Premises which landlord may deem necessary or desirable 10 comply with allgovernmenlal requiremenls andlor recommendations of an insurance rating bureau or of any similar public or private body or that landlord may deem necessary or desirable 10 prevent waste or deterioration in connection will1l11e Premises if the Tenant does not make or cause such additions, alterations, repairs or other work to be made or performed promplly after receipt of written demand from Landlord. Nothing herein contained shall Imply any duly on the part of Landlord to do any such work which under any provision of this Leasell1at Tenant may be required to do, nor shall it constitute a waiver 0' Tenants default in failing to do Ihe same. In the event Landlord performs or causes any such work to be performed, Tenant shall pay the cost thereof to Landlord as Additinnal Rent upon demand Iherefor. In addition, landlord may install, use, repairorreplace any and all materials, tools and equipment. and pipes, ducts, conduits, columns, foundallons, footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building in, through, under or above lI1e Premises that landlord deems desirable therefor, withoutlhe same constituting an actual or constructive eviction of Ten ant. landlord may also enterlhe Premises at all times during usual business hours for the purpose of showing the Premises to prospective purchasers, mortgagees and lenants. No exercise by Landlord of any rights provided in Section 13.01 or 13.03 shall entitle Tenant to any damage for any Inconvenience, dislurbance, loss 01 business or oll1er damage 10 Tenanl occasioned thereby nor to any abalement of Rent. Section 13,04: CONFLICTS. To the extent, if any, that there may be any connict between this Article 13 and Article 12, or between this Article 13 and Article 22, Article 12, if applicable, or Article 22, if applicable, shall prevail. ARTICLE 14: FIXTURES AND PERSONAL PROPERTY Section 14,01: TENANT'S PROPERTY; REMOVAL, Any trade fixtures, signs, counters, shelving, inventory, showcases, mirrors, and other personal property of Tenant not permanenlly affixed to lI1e Premises shall remain the properly of Tenant. Tenant shall have the right, provided Tenant I. not in default under this Lease, at any time and from lime 10 time duringll1e Term, to remove any and all of its personal property which it may have stored or Installed In the Premises. II Tenant is in default under this lease, landlord shall have the right to lake exciusive possession of such properly and to use such property without rent or charge, and Landlord, whether or not it lakes possession of such properly, shall have the benefit of any lien thereon permitted under the laws of the slate in which Landlord's Building is located and, if such Dossession is taken or such lien is asserted by Landlord in any manner, including but not limited to operation of law, Tenant shall not remove or permit the removal of said trade fixtures, signs or other personal property until such possession is relinquished or the lien is removed, as the case may be. Nothing in this Article shall be deemed or construed to permit or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement thereof with similar personal property 0' comparable or better quality, or otherwise render the Premises unsuitable for the continued conduct of Tenant's permitted use thereof. Tenant at its expense shall Immediately repair and otherwise make good any damage occasioned to lI1e Premises or Shopping Center by reason of inslallation or removal of any such personal property unless such damage Is caused by Landlord pursuant to Section 13.03 and If Tenant fails to remove such items from the Premises prior to such expiration or termination, or if this Lease is terminated by landlord and Tenant fails to remove such items from the Premises prior to the effective date of such termination, then in any such event all such personal property shall thereupon become the property of Landlord, without further act by either parly hereto, unless Landlord elects to require all or a portion of such items to be removed by Tenant in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Section 14,02: IMPROVEMENTS TO PREMISES, All improvements made to the Premises by Tenant, including, but not limited to, the items furnished pursuant to Tenant's Work, alterations, changes and additions by Tenant, light fixtures, "oar coverings and partitions, heating, ventilating and air..canditioning equipment, mechanical and plumbing equipment, but excluding trade fixtures and signs and other personal properly specified in Section 14.01, shall become the properly of landlord upon expiration or earlier termination of this lease; provided, however, that Landlord may designate by written notice to Tenant, prior to Tenant's making such alterations, those alterations, changes, and additions made in the Premises after the Rent Commencement Date which shall be removed by Tenant at the expiration or termination of this Lease, in which event Tenant shall at Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the Premises caused by such removal or by the installation of such alterations. changes or additions. Section 14.03: FINANCtNG STATEMENT. Tenant shall not enter Inlo, execute or deliver any financing agreement that can be considered as a priority to any lease, mortgage or deed of trust upon the Premises and. in Ihe event Tenant does so execute or deliver such financing agreement, such action on the part of Tenant shall be considered an Event of Default entitling Landlord to such remedies as are provided for herein. Tenant agrees that Landlord shall have an express contractual lien (in addition to any statutory lien) 21 lor Ihe performance 01 all Tenant's obligal/ons pursuanlto Ihis Lease, upon all 01 Ihe fix lures, maChinery, equipment, goods, Inventory and personally which are, or hereafter may be, placed In or upon Ihe Premises. ARTICLE 15: ASSIGNMENT AND SUBLETTING Section 1~,01: PROHIBITED. Tenant shall nol permit anyone other Ihan Tonantlo occupy the PremISes or any part Ihereol and shall nol ~ansfer, assign, sUblel, enler Into license or concession or Olher occupancy or use agreemenls or mortgage or hypothecale II1ls lease or lI1e Tenants Intereslln and 10 the lease or the Premises or any part thereol (herein collectively relerred to as "Transfar") without first oblalnlng In each and every Inslance Ihe prior written consent of landlord which landlord may withhold In Its sole dlscrellon. Any attempled Transler withoulsuch prior written consenl shall be an Evenl of De'ault, shall not be binding upon landlord, shall conler no rights upon eny Ihlrd person and shall not relieve Tenant 01 Its obligations under this lease. Any transfer by merger, consolidallon, liquldallon or otherwise by operalion of law, InCluding, bul notlimiled 10, an assignment for lI1e benefit 01 credllors, as well as any trans'er, assignment, or hypolhecatlon 01 any stock or general partnership Interest In Tenant so as 10 result in a change of lI1e con~ol Ihe,eo', shall be Included in lheterm ''Transfe(' for Ihe purposes of II1ls lease and shall be a violation ollhls Section 15.01 and an Event of Default, except as otherwise specifically set forth In this Article 15, Consenl by landlord to eny Trans'er shall not conslilule a waiver of Ihe necesslly for such consent 10 any subsequent Transfer. In the evenl 01 a permitted Transfer, Tenant agrees neverlheless 10 and shall remain 'ully liable for Ihe full perlormance of each and every obligation under Ihis lease 10 be performed by Tenant and the assignee shall be deemed 10 have assumed, and agreed to be bound by all 0' Ihelerms of Ihis lease. In lI1e event 01 any proposed Trans'er, Tenant.hall deliver to landlord written notice (lI1e "Raquast Notice") requesting landlord's consent to the proposed Transfer at least II1lrty (30) days prior to the date on which, with landlord's prior written consent, Ihe Transfer would be effective, The Request Notice shall conlaln, without limitation, atleasl: (i) the 'ullldentification of Ihe proposed transferee: (ii) the me51 recent financial statements and other evidence 01 the Iransferee's financial responslbilily and business performance: (Iii) Ihe transferee'a proposed specific use and business Proposed to be conducled at the Premises; (iv) the scope of any proposed alterations 10 Ihe storefront 01 and wilhin the Premises: and (v) the monetary and non-monelary lerms and conditions of lI1e proposed Transfer. landlord shall have the right and option (Ihe "Take-back Option"), exercisable by landlord giving Tenant written notice wilhin thirty (30) days after Landlord's receipt 0' Ihe Request Notice 01 reacquiring Ihe Premises or portion lI1ereof which is lI1e subjecl of lI1e proposed Trans'er and terminating this lease with respectlhereto. II Landlord elects not to exel1:ise the Take-back Option and elects 10 give landlord's written consent to Ihe proposed Transfer, then Tenant shall pay to Landlord 'orlhwith upon Tenants receipt, as Additional Rent, all sums and olher economic consideration (whelher by iump sum payment or otherwise) received by Tenanl in any monlh as a result 0' Ihe Transfer whether denominated renlals or otherwise which exceed, in lI1e aggregale, Ihe tolal sums which Tenant Is obligated to pay end does pay landlord under this lease In the same monll1 (prorated to refiect obligations allocable to that portion of the Premises which Is the subject of the Transler), all without affecting or reducing any other obligalion of Tenant heraunder provided, thaI in the case of an assignment of this Lease such Additional Rent payment by Tenant to landlord shall equallhe entire consideralion for such assignment, II landlord gives landlord's written consent 10 the proposed Trans'er and the Trans'er Is nol made (including withoutllmilatlon, delivery of possession by Tenant to and occupancy by lI1e proposed Iransferee approved by landlord) within Ihirly (30) days after the dale landlord gives its written consent 10 Ihe proposed Transfer, then Landlord's written consent and the Transfer shall be aUlomatically null, void and 0' no lorce or effecl whalsoever, The Take-back Option shall not be exhausted by anyone exercise thereof by landlord but shall be exercisable Irom time to time and as often as there Is a proposed Transfer, Tho Take-back Option may be exel1:ised by any assignee 01 Landlord's right, tltte and interest In Ihis lease or any oll1er person which atll1e time of lI1e Request Notice Is LandlOrd under lI1is Lease. "after recelpl of Ihe Request Notice Landlord requests additional or lurther information which Landlord reasonably requires 10 consider the proposed Trans'er, Tenant shall deliver such information to landlord upon Landlord's requestthere'or and Ihe period for landlord to exercise Ihe Take-back Option shall be extended by the number of days between landlord's request for and landlord's receipt of such additional or further information. Tenant shall pay to landlord the sum of Five Hundred ($500.00) Dollars to defray landlord's administrative costs, overhead and counsel fees in connection with the consideration, review and document preparation of any consented to assignment or subletting, such sum to be paid at the time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor. ARTICLE 16: DEFAULTS BY TENANT Section 16,01: EVENTS OF DEFAULT. This lease Is made upon the condition lI1at Tenant shall punctually and faithfully perform and fulfill all olll1e covenants, conditions and agreemenls by illo be performed as In Ihls Lease sel forth. In addition to evenls elsewhere stated In this lease as Events of De'ault, the 'ollowing shall be deemed to be an Evenl of De'aull (each of which Is sometimes re'erred to as en "Event of Default" In this lease): (a) Ihe failure by Ihe Tenanl 10 pay Minimum Rent andlor Percentage Rent andlor Additional Rent or any installment or year-end adjuslmentthereof II such failure conlinues for ten (10) days after written notlcethereol by landlord to Tenant; or (b) Ihe failure 0' Tenant to submit Its Design Drawings on or before the Design Drawings Submission Dale in accordance with Section 2.03(c) or commence Tenant's Work on or before the Construction Commencement Date In accordance with the lerms and conditions of Seclion 2.03(c); or (c) the lailure of Tenant to open its business to the pUblic in Ihe Premises on or prior to the date on which Tenant is required 10 open its business to Ihe public pursuanlto the lerms and conditions of Section 2.04, or the lailure 10 open the Premises, or 10 keep Ihe Premises open, on the days and hours required by this Lease, or II Tenant vacates or abandons lI1e Premises; or 22 (d) the failure 01 Tenanlto observe or perlorm any of the covenonls, terms or condlllons sel lorth In Arllcle 15 (relating to assign men I and subletting); or (e) Deleted; (I) the sale or removal of a subslanllal portion 0' Tenant's property located In Ihe PremISes in D manner which is outsido Ih. ordinary course of Tenant's business; or (g) the '.,Iureto maintain Inventory levels and employee staff in accordance wllh the provisions of Article 7 hareo~ or (h) repetition or continuation 01 any failure to timely pay any Minimum Rent andlor Percentage Rent and/or Addil/onal Rent or other sums reserved hereunder or 10 timely report Gross Sales as provided in Section 4.06 hereof where such failure shall cor,tlnue or be repeated lor two (2) consecutive monlhs, or lor a lotal 01 three (3) months In any period 0' twelve consecutive months; or (I) repetition of any failure to observe or perlorm any ollhe Lease covenants, lerms or condillons more lI1an II1ree (3) limes, In the aggregate, In any period 01 twelve (12) consecutive monlhs; or fj) any other 'ailure of Tenant 10 observe or perlorm any of the other covenants, terms or conditions set forth in Ihis Lease where said failure continues for a periOd 01 twenty (20) days after written notice Ihereof from landlord 10 Tenant (unless such fuilure cannot reasonably be cured wilhin twenly (20) days and Tenant shall have commenced to cure said failure withintwenly (20) days and continues diligently to pursue Ihe curing 0' the same until completed); or (k) the commencement 01 levy, execution, or attachment proceedings against Tenanl or any guaranlor 01 Tenant or a substantial portion of Tensors or guarantor's assets; the commencement of levy, execution, attachment or other process of law upon, on or against the estale created in Tenanl hereby; the application 'or or the appointment of a liquldalor, receiver, custodian, sequestrator, conservator. trustee, or other similar judicial officer for Tenant or any guarantor of Tenant or for all or any substantial part of the properly of Tenant or any such guarantor (and such appointment continues 'or a period of thirty (30) days); lI1elnsolvency of Tenant or any guaranlor of Tenant in bankruptcy or equity sense; any assignment by Tenant or any guarantor of Tenant for the benefit of creditors; or (I) the commencement of a case by or against Tenant or any guarantor 01 Tenant, under any Insolvency, bankruptcy, creditor adjustment or debtor rehabilitation laws, state or 'ederal; or Ihe delerminal/on by the Tenant or any guarantor of Tenant to request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor rehabilllation laws, state or 'ederal, and in no event shall the Premises or Tenant's interest In this lease become an asset In any such proceedings. Seotlon 16.02: LANDLORD'S REMEDIES, (a) Landlord may treal any Event 01 Delault as a material breach 0' this lease. Landlord's 'ailure to insisl upon strict performance of any covenant. term or condition of this Lease or to exercise any right or remedy it has herein shall not be deemed a waiver or relinquishment for the future 0' such perlormance, right or remedy. In addition 10 any and all other rights or remedies of Landlord in this Lease or at law or In equity provided, landlord shall have the following rights and remedies if there shall occur any Event 01 Default: (i) at landlord's option, the whole balance 0' Renl, and all other sums payable hereunder by Tenan~ for the entire balance of Ihe Term, or any part of such Rent and other sums, shall be taken to be due and payable 'rom Tenant and In arrears as if by the terms of the Lease said balance of Rent and ether sums were on the date of the exercise of such option payable in advance; and/or (i1) to terminate this lease, end to re-enler Ihe Premises and take possession thereo' and to remove all persons and conlents there'rom, and Tenant shall have no further claim or right hereunder; andlor (ill) to bring suit for the collection 0' Rent and for damages (Including wilhoutlimitaUon reasonable attorney's fees and the costs of repairing and reletting the Premises) without entering into possession of the Premises or terminating this Lease; and/or (iv) to retake possession of the Premises from Tenant by summary proceedings or otherwise, with or without terminating this Lease. After reentry or retaking or recovering of the Premises, whether by termination of this Lease or not, Landlord may, but shall be under no obligation to, make such alterations and repairs as Landlord may deem necessary or advisable and may relet the Premises or any part or parts thereof, either in Landlord's name or otherwise, for a term or terms which may at Landlord's opUon be less Ihan or excead Ihe period which otherwise would have conslituled Ihe balance 0' the Term and at such rent or rents and upon such other terms and condilions as in Landlord's sole discretion may seem advisable and 10 "uch person or persons as may in Landlord's discretion seem besl; and whether or not the Premises are relet, Tenant shall be liable 'or any loss 01 Rent and oll1er sums 'or such period as would be Ihe balance or the Term of this Lease and any extensions or renewals thereof plus the cost and expenses of relelting and 0' redecoraUng, remodeling or making repairs and allerations to the Premises for the purpose 0' reletting, the amount 01 such liabllily to be computed monlhly and to be paid by Tenant 10 landlord from time to time upon demand. Landlord shall In no event be liable for, nor shall any damages or other sums to be paid by Tenant to Landlord be reduced by, 'allure to relet the Premises or 'allure to collecl the rent from any relelting. Tenant shall not be entilled to any renls or other sums received by Landlord In excess 01 the Rents and other sums provided for In this Lease. Tenant agrees that Landlord may file suit to recover any sums 'ailing due under the terms 0' this subsection from time to time and Ihat no suit or recovery 0' any portion due Landlord hereunder shall be any de'ense to any subsequent action broughl for any amount notthereto'ore reduced 10 Judgment In favor or Landlord. Notwithstanding any reletting wilhouttermination, Landlord may at any time hereafter elect to terminate this Lease for Tenant's previous breach; and/or (v) commencement 0' any actions by Landlord for Rent and damages shall not be construed as an election to terminate lI1is Lease and shall not absolve or discharge Tenant from any of ils obligations or liabilities lor the remainder of the Term; andlor 23 (vi) 10 enler Ihe Premises and without furthar demand or nollce proceed to distress and sale of Ihe goods, chatlels, personal property and olher conlonlsthore lound and to levy Ihe Renl, and Tenanl shall pay all costs and officars' commissions, Including watchmen'. wages and sums chargeable by landlord, and lu"her including charges which landlord may Impose by slalul. as commission. 10 the conslable or olher person making the levy, and In such casas all cosls, officer.' commissions and other charge. shalllmmedlalely allach and become part 01 the claim of Landlord 'or Renl, and any lender 01 Rent without said cosls, commissions and charges made, after tha Issuance 01 a warrant 01 distress, shall not be sufficient 10 satisfy the claim of Landlord; end/or (vII) In the event 0' eny re-enlry, landlord shall havetha rlghl but nOlthe obligation 10 remove any personal properly from the Premises and ellher Irealsuch properly as abandoned, or etlandlord's oplion, place Ihe same in storage at a public warehouse atlhe sole cost, expense and risk 0' the Tenant. (b) Confa.slon of Judam.nt "Rent, Tenant covenants and agrees Ihat if there is an Evenl 01 Default, then landlord may, without limitation, cause judgmenls lor money 10 be entered against Tenant and, lor Ihose purposes, Tenant hereby granls Ihe following warrant of allorney: (I) Tenant hereby Irrevocably authorizes and empowars any prathnnolary, cieri< of court, attomey of any court of record and/or Landlord (as well as someone acting for landlord) in any and all action. commenced against Tenant lor recovery of the Rent and/or other amounts to be paid to Landlord by Tenant to eppear for Tenant, end assess damages and confess or otherwise enter Judgment agalnsl Tenant, for ail or any part of the Renl and/or other amounts to be paid fa landlord by Tenant Including, wllhoutlimitation, sums under Section 16.02(a), together with Inlerest, cosls and an attomeys' commission of five percent (5%) 01 Ihe lull amount of such Rent, amounls and sums, and Ihereupon writs of execulion as well as attachment may 'orthwith Issue and be served, without any prior notice, writ or proceeding whatsoever, except as may olherwise be required by applicable law; (II) Ihe warranl of attorney herein granted shall not be exhausted by one or more exercises thereof but successive actions may be commenced and successive judgments may be conlessed or otherwise entered agalnsl Tenant from time to time as often as any of the Rent and/or other amounts and sums shall fall or be due or be In arrears, and this warrant of attomey may be exercised after Ihe termination or expiration of the Term and/or during or after any extensions of the Term or renewals 0' this lease; and (iil) Ihe provisions of Section 16.02(d) are incorporated herein by this re'erencethereto. (c) Conf...lon of Judament . PO.....lon, Tenant covenants and agrees lI1at if Ihere is an Event of Default or this Lease is terminated or the Term or any extensions or renewals thereof is terminated or the Term or any extensions or renewals thereof is lerminated or expires, then, and in addition to the rlghls and remedies sel fo"h in Section lS.02(b), Landlord may, wilhoutllmitation, cause judgmenls in ejectmenl for posseSSion 01 the Premises to be entered against Tenanl and, for 1I10se purposes, Tenant hereby grants lI1e following warrant of attorney: (i) Tenant hereby Irrevocably aull10rlzes and empowers any prolhonolary, clerk of court, attorney of any court of record andlor landlord <as well as someone acl/ng 'or landlord) in any and all actions commenced lor recovery 0' possession of the Premises to appear 'or Tenant and confess or otherwise enter judgment In ejectment for possession of Ihe Premises againsl Tenant and all persons claiming directly or indirectly by, II1rough or under Tenant, and thereupon writ of posseSSion may forthwith issue and be served, will10ut any prior notice, writ or proceeding whatsoever, except as may otherwise be required by applicable law; (ii) it, for any reason after the 'oregoing action or actions shall have been commenced, it shall be determined thai possession of the Premises should remain in or be reslored to Tenant, landlord shall have the righlto commence one or more further actions as hereinbefore set forth to recover possession of the Premises Including, without limitation, appearing for Tenant and confessing or otherwise entering judgment for possession orthe Premises as hereinbefore sel forth; and (iii) the provisions of Section 16.02(d) are incorporaled herein by this reference thereto. . (d) In any action or proceeding described in Section 16.02(b) and/or Secl/on 16.02(c), or in connection therewith, if a copy of this lease is therein v.rified by landlOrd or someone acl/ng for Landlord to be a t'Ue and correct copy of II1ls lease (and such copy shall be conclusively presumed to be true and correcl by virtue 01 such verification), then it shall not be necessary to file the original of this Lease, any statute, rule of court 0' law, custom or practice to the contrary notwill1standlng. Tenant hereby releases to landlord, anyone acting for Landlord and all attorneys who may appear for Tenant all errors In procedure regarding the entry of judgment or Judgmenls by conlession or otherwise by virtue of the warrants of attomey contained in this lease, and allliabilily therefor. The right 10 enter judgment or judgments by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other provisions of this Lease may be exercised by any assignee of Landlord's righI, litle and interest in this lease In such assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding. (e) Tenant expressly waives: (i) The benefit of all laws, now or hereinafter in force. exempting any goods in the Premises or elsewhere from distraint, levy or sale In any legal proceedings taken by landlord to enforce any rights under this Lease, (ii) The benefit of all laws now made or which may hereafter be made regarding any limitation as 10 the goods upon which, or the time wilhin which, distress is to be made after Ihe removal of goods, and Tenant further relieves LandlOrd of the obligation of proving or identifying such goods; it being the purpose and intent of this provision that all goods 0' Tenant whether upon the Premises or nOI, shall be liable to distress for renL (iii) The right to Issue a writ of replevin for Ihe recovery 0' any goods seized under a distress 'or Rent or levy upon an execution for Rent, damages or otherwise. (iv) The righlto delay execution on any real estate that may be levied upon 10 collect any amount which may become due under the terms and conditions 01 Ihis Lease and any right to have the same appraised. The Prothonolary or Cieri< of Court Is hereby aull10rlzed and empowered by Teroant allandlord's instance to enler a wril of execution or olher process upon Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of execution or other process. (v) All rights under the landlord and Tenant Act of 1951, and all supplements and amendments Ihereto, hereby authorizing Ihe sale of any goods distrained for rent at any time after seven (7) days from said distraint without any appraisemenl and condemnation thereof. (vi) The right to three (3) monlhs and/or fifteen (15) or thirly (30) days' notice required under certain circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of summary proceedings or an action for possession or to the termination of this Lease or any retaking of possession, Tenant hereby agreeing that the respective notice periods provided for in this lease shall be sufficient in any such case. 24 Section 18.03: DAMAGES UPON TERMINATION, (a) If Landlord elects to lermlnate IhisLease under tho provisions 01 Section lS 02 above, Landlord may recover Irom Tenanl damages computed In accordanco with Ihe lollowlng 'ormula In addlllon 10 lis other remedies: (I) the worth etlhe time 0' Judgment 01 any unpaid Rent which has been earned allhe time of such terminallon; plus (il) the worth at the lime oljudgmenl ollhe amount by which the unpaid Rent which would have been earned after termlnallon unlil the time of judgmenlexceeds Ihe amounl 01 such rental loss Tenant proves could have been reasonably avoided; plus (iii) lI1e worth etlhe time of Judgment 0' the amount (as discounted atlhe rale of seven percent (7%) per annum) by which the unpaid Rent 'or Ihe balance of Ihe Term after Ihe lime 01 judgment exceeds the amount of such renlal loss lI1at Tenanl proves could have been reasonably avoided; plus (iv) any other amounl necessary 10 compensate landlord lor all the detriment proxlmalely caused by Tenent's failure to perform Its obligations under Ihls lease or which in the ordinary course of things would be likely 10 result therefrom Including withoutlimilation the cost of repairing Ihe Premises and reasonable attorney's fees; plus (v) at Landlord's election, such other amounts in addillon 10 or in lieu 01 Ihe 'oregolng as may be permitted Irom time 10 time by applicable stale law. Damages shall be due and payable from Ihe date 0' termination. As used in Ihls Seeton, Ihe phrase "worth atlhe time 01 judgment" Is computed by adding to Ihe past Renl duelnlerest at the Defaull Rate, (b) For the purposes of calculating the sLims due by Tenant pursuant 10 Section 16.02 and Secllon lS.03, the Percentage Rent lor the balance of the Term shall be deemed to be that amount per annum which is the highest annual Percentage Rentthereto'ore payable by Tenant pursuant to this Lease, provided that if the default occurs less lI1an one year ~om lI1e Required Opening Date, such Percenlage Rent per annum shall be deemed to be an amount equal to .25 times Ihe Minimum Rent per Year. For the purposes of computing the sums due by Tenanl pursuant 10 Section 16.02 and Section 16.03, the amounts of Additional Rent which would have been payable per Year pursuant 10 this lease shall be such amounls as were or would have been payable (wlthoulthe benefit of any abatement to which Tenant may have been entitled) for lI1e full calendar year next preceding the calendar year In which the default occurred, increasing annually on the first day of each year aftersuch calendar year at the rate 0' seven percent (7%) per annum compounded. As used in this Section 16, Ihe "Term" shall include the term of Ihis Lease and any renewals or extensions thereof to which Tenant shall have become bound prior 10 the Event 0' Default. The "Default Rate" means lI1at rate of Interest which is three percent (3%) over the announced prime rate of the bank selected by landlord. Section 16,04: LANDLORD'S SELF-HELP. In addition to landlord's rights 10 self-help set forth elsewhere In this Lease, if Tenant at any time fails to perform any of its obligations under this lease in a manner reasonably satisfactory to Landlord, landlord shall have the right, but not the obligation, upon giving Tenant at least II1ree (3) days prior written notice of its eleclion to do so (in the event of any emergency no prior notice shall be required) to perform such obligations on behalf of and 'or Ihe account 0' Tenant and 10 take all such action to perform such obligallons. In such event, landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent forthwith, upon demand therefor, with interest Ihereon 'rom the dale Landlord performs such work etthe De'ault Rate. The performance by Landlord of any such obligation shall not constitule a release or waiver of Tenantll1erefrom. ARTICLE 17: LIABILITY OF LANDLORD Section 17,01: LANDLORD'S DEFAULT, Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if landlord falls to perform any ofits obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereo' ~om Tenant to landlord (unless such failure cannot reasonably be cured within thirty (30) days and landlord shall have commenced 10 cure said failure within said thirty (30) days and conlinues diligenlly to pursue the curing of the same). If landlord shall be In default under this Lease and, if, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of saie received upon execution of such judgment and levied thereon against the righI, tltie and interest of landlord in the Shopping Center as lI1e same may then be encumbered and landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property 01 Landlord other than Landlord's right, title and Interest in Ihe Shopping Center as hereinbefore expressly provided. No default by Landlord under this lease shall give Tenant the right to lerminalethls lease. Section 17,02: TRANSFER OF LANDLORD'S INTEREST. In lI1e evenl 01 the sale or olher trans'er 01 Landlord's right, tille and interest in the Premises or the Shopping Center (except in the case of a sale-leaseback financing Iransaclion in which Landlord is the lessee), landlord shall transfer and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by landlord pursuanllo Section 2.02 of this Lease, and landlord thereupon and without further act by either party hereto shall be released from all liability and obligations hereunder derived from this Lease arising out of any act, occurrence or omission relating to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant shall have no right to terminate this Lease nor to abate Rent nor to deduct from nor set.off nor counterclaim against Rent because of any sale or transfer (including wllhoutlimilation any sale-leaseback) by landlord or its granlees, successors or assigns. Neither Landlord's mortgagee (or its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant for the return of Ten ant's Security Deposit unless and until Landlord actually delivers the Security Deposit to such mortgagee or purchaser or their designee. 25 ARTICLE 18: SUBORDINATION AND ATTORNMENT Section 18,01: SUBORDINATION OF LEASE, Tenanlagreeslhal, except as hereinafter provided, this Lease Is, and shall always be, subject and subordinate 10 any lease wherein landlord is the lessee and to the lien of any or all mortgages or deeds 01 trust, regardless 0' whelher such lease, mortgages or deeds of trust now exist or may hereafter be created wllh regard to all or any part of the Shopping Center, and to any and ail edvances to be made thereunder, and 10 the IntereSl thereon, and all modifications, consolidations, renewals, replacemenls and extensions thereof. Such subordination shall be effectIVe without Ihe execution of any further Instrument. Tenant also agrees 1I10t any lessor, mortgagee or trustee may eleclto have this Lease prior to any lease or lien 01 its mortgage or deed of trust, and In the event 0' such elecl/on and upon notification by such lessor, mortgagee or trustee to Tenant to thai effecl, Ihis lease shall be deemed prior In lien to Ihe said lease, mortgage or deed of trust, whether this lease is dated prior to or subsequenl to the date of said lease, mortgage or deed of trust. Section 18,02: TENANTS ATTORNMENT. In lI1e event of any 'oreclosure of, or Ihe exercise of a power 01 sale under, any mortgage or deed of trust relerred to in Section 18.0' covering lI1e Premises or in the event 01 Ihe termination of any lease re'erred to In Section lS.01 wherein Landlord Is the lessee, Tenant, upon Ihe purchaser or lesso~s request, shall attorn to and recognize the purchaser or Landlord's lessor as landlord under this lease. Section 18,03: INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or lrustee, Tenanl shall execute and deliver whatever Instruments may be required 'or such purposes and to carry outlhe inlent of this Article lS, and in the event Tenant fails to do so within fifteen (15) days after demand in writing, Tenant shall be deemed to have committed an Event of De'ault. ARTICLE 19: ESTOPPEL CERTIFICATES Section 19,01: TENANT'S AGREEMENT TO DELIVER, From time to time within twenty (20) days after request in writing therefor from Landlord, Tenant agrees 10 execute and detiver to landlord, or 10 such other addressee or addressees as Landlord may designate (and landlord and any such addressee may rely Ihereon), a statement in writing In 'arm and substance satisfactory to landlord (herein called "Tenant'. Estoppel Certlficale"), certifying as to such mailers as may be reasonably requested by Landlord. Tenanl expressly agrees that landlord may assign its interest in the Tenant's Estoppel Certificale 10 its lender(s) at any time who may actin material reliance thereon. Section 19,02: FAILURE OF TENANT TO PROVIDE. In the eventll1at Tenant fails to provide a Tenant's Estoppel Certificate will1in twenty (20) days after landlord's written request therefor, Tenant shall be deemed to have committed an Event of De'ault. ARTICLE 20: QUIET ENJOYMENT Section 20,01: FAITHFUL PERFORMANCE, Upon payment by the Tenant of the Rent herein provided for, and upon the observance and performance of all of the agreements, covenants. terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and enjoy the Premises lor the Term without hindrance or interruption by landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions 01 this Lease, and mortgages, leases and other matters to which this Lease is subject or subordinate. ARTICLE 21: SURRENDER AND HOLDING OVER Section 21.01: DELIVERY AFTER TERM, Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier termination 01 the Term, broom clean, 'ree of debris, In good order, condition and state of repair and In compliance with Section 14.01 (excepting as may be landlord's obligation under this Lease and ordinary wear and tear), and shall deliver Ihe keys to lI1e management office of Landlord or to such other place as may be designated 'rom time 10 time by notice 'rom Landlord to Tenant. il not sooner terminated as herein provided, this Lease shall terminate at the end of the Term as provided for In Article 3 without the necessity of notice from either Landlord or Tenant to terminate the same. Section 21.02: EFFECT OF HOLDING OVER; RENT, If Tenant or any party claiming under Tenant remains in possession of the Premises or any part thereof, after any expiration or termination of this Lease, no tenancy or interest in the Premises shall result therefrom b~t such holding over shall 26 be an unlew'ul delalner and all such parties shall be subjecllo Immediate ousler and removal, and (a) Tenant shall pay upon demand to lendlord for any period when Tenanl shall hold the Premises after the Term has lerminaled or expired, as IIquidaled renl lor such period, a sum equal 10 all Percenlage Renl and Additional Renl provided lor In this Lease plus an amount computed allhe rate 01 double lI1e Minimum Renl for such period, and (b) Tenant shalllndemnily and hold harmless Landlord from all loss, cosl, expense and lIabilily whatsoever resulting from such holding over, Including, Wilhoullimlting the generality 01 Ihe loregolng, any claims made by any succoedlng lenant based on such holding over. ARTICLE 22: CONDEMNATION Section 22,01: ALL OF PREMISES TAKEN. If Ihe whole of Ihe Premises shall belaken or condemned eilher permanently or lemporarily 'or any public or qua.l- public use or purpose by any competenl authority in appropriation proceedings or by any right 01 eminent domain or by agreement or conveyance in lieu lI1ereol (each being hereinafter referred to as "Condemnation"), this Lease shall terminate as oflhe day possession shall be laken by such authorlly, and Tenant shall pay Renl and perform all oUts other obligations under this Lease up 10 that date with a proportlonale relund by Landlord of any Renl as shall have been paid In advance for a period subsequenllo Ihe date 0' the laking of possession. Section 22,02: lESS THAN ALL OF PREMISES TAKEN, If less Ihan all but more Ihan twenly.five percent (25%) 01 Ihe GLA In Ihe Premises is laken by Condemnation, or if (regardless of the percenlage of Ihe GLA In Ihe Premises which is taken) Ihe remainder of the Premises cannol be used for the carrying on orTenanfs business, lI1en in either event landlord or Tenant shall each have the right to lerminale this lease upon notice In wril/ngto lI1e olher parly within ninety (gO) days after possession is taken by such Condemnation. If this lease Is so terminaled, it shall terminate as 01 the day posseSSion shall be taken by such authority, and Tenanl shall pay Rent and perllorm all 0' its obligallons under Ihls lease up 10 that date with a proportionate refund by landlord of any Renl as may have been paid in advance lor a period subsequenlto the date 0' Ihetaking of possession. If this lease is not so lerminaled, it shall lerminate only with rospect 10 lI1e parts of the Premises so laken as of the day of possession shall be laken by such aull1orlty, and Tenanl shall pay Rent up to that day with a proportionate refund by landlord of any Rent as may have been paid for a period subsequent 10 lI1e date of such laking and, thereafter, the Rent and Ihe applicable Sreak Point shall be reduced in direct proportion to the amounl of GLA of Ihe Premises laken and landlord agrees, at landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to a complete unit of similar quality and character as existed prior 10 such appropriation or taking (to Ihe extent feasible); provided thaI Landlord shall not be required to expend more on such restoration than an amount equal 10 the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord In connection with such award). Section 22,03: SHOPPING CENTER TAKEN, If any part 0' lI1e Shopping Cenler is laken by Condemnation so as to render, in landlord's judgment, Ihe remainder unsuitable for use as an enclosed mall shopping center, landlord shall have the right to terminate this lease upon notice in writing to Tenant will1ln one hundred twenly (120) days after possession is lIken by such Condemnation. If landlord so termlnales Ihis Lease, it shalllermlnale as 01 the day possession is taken by Ihe condemning authority, and Tenant shall pay Rent and perform all of its otl1er obligations under this lease up to thaI date with a proportionate re'und by landlord 01 any Rent as may h~ve been paid in advance for a period subsequent to such possession. Section 22,04: OWNERSHIP OF AWARD, As between landlord and Tenant. all damages 'or any Condemnation of all or any part 0' Shopping Cenler, including, without limitation, all damages as compensation for diminution in value of the leasehold, reversion and fee, and Tenanrs leasehold Improvements, shall belong to the Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenanl hereby assigns 10 landlord all its right, title and intereslto any such award. Allhough all damages In the event of any Condemnation are to belong to the Landlord, whether such damages are awarded as compensation for diminution in value of the leasehold, reversion or fee of the Premises, or Tenant's leasehold improvements, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any cost or expense which Tenant might incur in removing Tenant's merchandise, furniture and fixtures, provided such compensation does not in any way diminish the compensation olherwise available 10 Landlord. ARTICLE 23: MISCELLANEOUS Section 23.01: INTERPRETATION. (a) The capllons, table of contents and index of defined lerms appearing In this Lease are Inserted only as a matter of convenience and in no way amplify, define, limit, construe, or describe the scope or intent of such Sections or this lease nor in any way affect this lease. (b) If more than one person or corporation is named as Landlord or Tenant in this lease and executes the same as such, or becomes landlord or Tenant, then and in such event, the words "Landlord'~ or ''Tenant'' wherever used In this Lease are intended to refer to all such persons or corporations, and the liability of such persons or corporations for compliance with and performance of aU the terms, covenants and provisions of this lease shall be joint and severai. (c) The neuter, feminine or masculine pronoun when used herein shall each Include each of the olher genders and Ihe use of Ihe singular shall Include the plural. 27 (d) The parties herelo agree that all the proviSions 0' this lease are to be construed as covenants and agreements aSlhough the words importing such covenanls and agreemenls were used In each separate provision hereof, Furthermore, aach covenanl, agreement, obligation and olher provision conlained In Ihls lease is, and shall be deemed and construed as a separala and Independent covenanl 01 the party bound by, undertaking or make the same, and nol dependent on any olher provision 0' this lease unless expressly so provided. (e) AllI10ugh lI1e provisions 01 this lease were drawn by landlord, lI1is lease shall not be construed for or against Landlord or Tenanl, butlhis lease shall be Interpreted in accordance wllh the generallenor of the language in an effort to leach Ihe Inlended resull. Secllon 23.02: RELATIONSHIP OF PARTIES, Nothing herein contained shall be deemed or construed by Ihe parties herelo, or by any Ihlrd party, as creating Ihe relationship of principal and agent or of partnership or 0' joint venture between the parties herelo, it being underslood and agreed that neill1er the method 01 compulation 01 Percenlage Renl, nor any other provision conlained herein, nor any acls of 1110 parties herein, shall be deemed 10 creale any relationship between the parties herelo other lI1an the relationship 0' landlord and tenant nor cause Landlord to be responsible In any way for acls, debls or obligal"..,s of Tenant. Secllon 23.03: NOTICES, Any notice, demand, requesl, approval, consenl or olher instrument which may be or is required 10 be given under this Lease shall be In writing, and, shall be deemed 10 have been given (a) when mailed by United States registered or certified mall, relurn receipt requesled, postage prepaid and received or re'used by the addressee, or (b) when sent by courier guarantying overnight delivery, addressed to landlord or Tenanl at the respective addresses set forth in Ihe Fundamenlal lease Provisions andlor such other address or addresses as either parly may designate by notice to the other in accordance wilh Ihis Section and received or refused by Ihe addressee. Any notice by Ihe landlord may be given on ils behalf by Agent or by an allorney for landlord or Agent Any nol/ce properly sent to Tenant shall be deemed effective whether or not a copy is sent to the address designated In Ihe Fundamental Lease Provisions to receive a copy of such nolice. Secllon 23,04: SUCCESSORS. This lease and the covenants and conditions herein conlained shall inure to the benefit 0' and be binding upon (subjecl to Article 17) Landlord, its successors and assigns, and shall be binding upon Tenant, its heirs, successors and assigns and shall inure 10 lI1e benefit of Tenanl and only such assigns of Tenant to whom the assignmenl by Tenant has been consenled to by Landlord in writing. Noll1lng In Ihis Section 23.04 shall be deemed 10 require Landlord 10 give any such consent. All 0' Tenant's obligations duringlhe Term pursuant to Section 4.05, 4.06, 4.07,5.01,5.02,7.03, S.03, 11.03 and 23.17 shall survive the expiration or earlier termination of this Lease. Secllon 23,05: BROKER'S COMMISSION. Tenanl warrants that, excepl for Agent and, II applicable, The Rubin Organization, Inc., il has dealt wilh no broker In connection wilh this Lease, and agrees to and shall de'end, indemnify and save landlord harmiess from all claims, actions, damages, costs and expenses and liability whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through Tenanl for a commission, finde~s or like fee in connecllon with Ihis Lease. landlord shall pay the fee or commission due Agent and The Rubin Organizallon, Inc. In connection with this Lease. Secllon 23,06: UNAVOIDABLE DELAYS, In Ihe eventlhat either party herelo shall be delayed or hindered in or prevented Irom the p", ;ormance of any act required hereunder by reason of strikes, lockouts, inability to procure labor or malerlals, failure of power, restrictive governments/laws or regulations, riots, insurrection, war, fire or other casualty or ether reason of a similar or dissimilar nature beyond Ihe reasonable control 01 the parly delayed in performing work or doing acts required under thelerms of Ihls lease, then performance of such act, but not Tenants obligation to pay Rent, shall be excused lor Ihe period of lI1e delay and Ihe period for the p.rformance of any such act shall be exlended for a periOd equivalent to the period of such delay, During Tenant's Construction PeriOd the provisions of this Section 23.06 shall nol operate 10 excuse Tenant from completing construction of the Premises within Tenant's Construction Period unless Tenant gives written notice of the delaying event to Landlord within len (10) days of the occurrence 01 such delaying event. Such written notice shall specify the nature of the delaying event and Ihe number 0' days of delay claimed to result therefrom. Tenant's Construcl/on Period shall be extended 'or a period equivalenllo the period of actual delay. After the Rent Commencement Date the provisions of this Section 23.06 shall not excuse Tenanl from Ihe prompt paymenl 0' Rent and ail other sums due by Tenant under this Lease and such delay shall nol exlend the Term. Delays or lallures to perform resulting from lack of funds or Ihe unavailability of a particular contractor or parsonnel shall not be deemed delays beyond lI1e reasonable control of a parly. , Section 23,07: SEVERABILITY. It is the Intention of lI1e parties herelo that If any provision of this lease is capable 0' two constructions, one or which would render Ihe provision invalid and Ihe other 0' which Would render the provision valid, Ihen the provision shall have the meaning which renders it valid. If any term or provision, or any porlion thereol, of Ihis lease, or Ihe application thereo'lo any person or circumstances shall, to any extent, be Invalid or unenforceable, Ihe remainder of this Lease, or the application of such term or provision to Ihe persons or circumstances other than those as to which it Is held invalid or unenforceable, shall not be affected thereby, and eacti term and provision ofll1is leas. shall be valid and be enforced to the fullest extent permitted by law. Section 23.0S: TIME OF ESSENCE. Time is of the essence will1 respect 10 the performance of the respective obligations of landlord and Tenanl set forth 2S " In this lease. Section 23.09: OTHER TENANTS/SUBSTITUTE PREMISES, <a) Landlord reserves Ihe absolute right to effeclsuch other tenancies In Ihe Shopping Cenler as Landlord shall determine in the exercise of its sole business judgment Tenant hereby acknowledges Ihat (i) Ihls lease conlalns no restrictive covenants or exclusivas in favor of Tanont; (i1) this lease shall not be deemed or inlerpreted to conlain, by Implication or otherwise, any warranty, representation or agreemenl on tha part 01 Landlord lI1at any department store or regional or national cnain store or any other merchant shall open for buSiness or occupy or conl/nuo to occupy any premises in or adjoining the Shopping Center during the Term or any part the real or that Tenant shall generate a certain amount of Gross Seles or that any reimbursable amount payable by Tenant shall be any specific amount, and Tenant hereby expressly waives all claims wlll1 respect thereto and acknowledges that Tenant Is not relYing on any such warranty, representation or agreement by Landlord either as a matter of Inducemenlln entering Into this lease or as condition 01 this lease or as a covenant by Landlord, (b) During lI1e Term or any exlensions or renewals thereof,landlord, at Tenanrs expense, and upon at least sixty (60) days' prior written notice ("Landlord'a Notlca"), may require Tenant to relocate from the Premises to another retail spece designated by landlord ("Relocated Premises"), which shall contain approximately the same GLA as Ihe Premises, In order to permit landlord to: (i) consotidate Ihe Premises wilh olher adjoining space leased or to be leased to anoll1er actual or prospective tenanl in Landlord's Building, andlor (ii) recaplure the Premises In connection with any re-merchandlslng, reconfiguration andlor expansion of Landlord's Building or the Shopping Center, landlord's Notice shall specify the location oflhe Relocated Premises and lI1e date by which Landlord will require that Tenant complete such relocation. If Landlord sends Landlord's Notice, Tenant may, within fifteen (15) days from the date of landlord's Notice, send a written notice ("Tenant'. Notice") to landlord electing not 10 relocate to the Relocated Premises and in lieu thereof terminating the Lease as of tha day specified in Landiord's Notice for the completion of such relocation by Tenanl, In which event this Lease will expire and terminate on such dale as 1I10ugh lI1e date set forth in landlord's Notice was fixed as the expiration date hereof, and Landlord shall have no liability to Tenant as a result of such canceilation. If Tenant fails to deliver Tenanrs Notice within fifteen (15) days after the date of landlord's Notice, Tenant shail be obligated to relocate in accordance with Landlord's Notice and commence doing business in the Relocated Premises not later than tha date specified in Landlord's Notica. Prior to performing any work in Ihe Relocated Premises, Tenant shall submit to Landiord for approval Design Drawings in accordance with the provisions specified in ~ 2.03 and no such work shall commence until the same have been approved by Landlord. Landlord shall pay the reasonable expenses of moving Tenant's inventory. existing furniture, eXisting trade fixtures and equipment from the Premises to the Relocated Premises, such payment to be made within lI1irty (30) days after Tenant opens for business in the Relocated Premises and delivers to landlord evidence reasonably acceptable to Landlord specifying such cosls and expenses. Not later Ihan the date specified In Landlord's Notice 'or the completion of such relocation, and whether or not Tenant shall have commenced business In the Relocated Premises, Tenant shall vacatell1e Premises hereby damised and peaceably surrender possession thereof 10 Landlord in accordance with Ihe provisions hereof. Commencing as of the last day by which the relocation to the Relocated Premises must be accomplished, or if sooner, the date Tenant commences business In the Relocated Premises, all of Tenanrs righi, title and interest in and to the Premises originally demised by this Lease shall cease and terminate and lrom and after such date, the Relocated Premises shall be deemed demised hereunder In lieu of the premises originaily demised hereby. Occupancy of the Relocated Premises shail be under and pursuant to the terms of this Lease, except Ihat lI1e Minimum Rent and Break Point shall automaticaily be amended to bear the same relationship to the Minimum Rent and the Break Point presently set forth in Ihe Lease as Ihe GLA of the Relocated Premises bears to the GLA ofll1e Premises. At the request of Landlord, Ihe parties shail enter into an amendment of this Lease which shall confirm lI1e GLA, new Minimum Rent and new Break Point of the Relocated Premises. Section 23,10: APPLICABLE LAW, The laws oflhe state in which landlord's Building is located shall govern the validity, performance and enforcement of this Lease. If either party Institutes legal suit or action for enforcement of any obligation contained herein, it Is agreed that venue for such suit or action shall be in the state in which the Premises are located. Section 23.11: WAIVER, (al The waiver by Landlord of any lerm, covenant, agreement or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other terms, covenant. agreement or condition herein contained. The subsequent acceplance of Rent hereunder by landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, agreement or condition of this Lease, other lI1an the failure of Tenant to pay the particular Rent so accepted, regardless of landlord's knowledge of such preceding breach at the time of acceptance of such Rent. . No covenant. term, agreement or condition of this lease shall be deemed to have been waived by Landlord, unless such waiver be In writing and executed by Landlord. (bl No waiver of any covenant, term, agreement or condition ollhis lease orlegal right orremady shall be Implied by the failure of Landlord to declare a forfeiture, or 'or any other reason. No waiver by Landlord In respect to one or more tenants or occupants of landlord's Building or any other part of the Shopping Center snail constitute a waiver In favor of any other tenant. landlord's consent to, or approval of, any act by Tenant requiring Landlord's consent or approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval 0' any subsequent similar act by Tenant.. No consent or approval by Landlord shall operate to change any condition, requirement or other provision of this Lease on any' occasion unless made in writing and executed by a general partner (or executive officer) of Landlord. Section 23.12: ACCORD AND SATISFACTION. No payment by Tenant or receipt by landlord 0' a lesser amount than Ihe Rent herein stipulated shall be other than on account of the earliest stipulated Rent nor shall any endorsement or statement on any accompanying any such check or payment as Rent or the like be deemed an accord and satisfaction, and Landlord such check or payment without prejudice to Landlord's rights and remedies to recover the balance of such Rent or pursue other right and remedy provided for in this Lease or available allaw or in equity. If Landlord shall direct Tenant to pay 29 , " to a "Iockbox" or olher depoSitory whereby checks issued in paymenl of Rent are IMlally cashed or depoSited by a person or entity oll1er than Landlord (albeit on landlord's authority) then, lor any and all purposes under this Lease: (a) landlord shall not be deemed to have accepted such payment unlil ninety (90) days a~er Ihe date on which landlord shall have ectually received such funds, (b) landlord shall be deemed 10 have accepled such payment if (and only IQ within said ninety (gO) day period,lendlord shall not have refunded (or allempted 10 refund) such payment 10 Tenant and (c) Landlord shall not be bound by any endorsement or slatement on any check or any leller accompanying any check or payment and no such endorsement, slatement or letter shall be deemed an accord and satisfaction. Landlord or Landlord's bank may accept such check or p.yment will10ul prejudice to L.ndlord's rlghlto recover the balance 01 such rent or pursue any other remedy provided In this Le.s., .tlaw or in eqully. Nothing contained in the Immediately preceding sentence shall be construed to place Tenant In delault 01 Ten.nt's obligation to pay Rent" and for so long as Tenant shalltimety pay the Rent required pursuant 10 II1ls Lease in Ihe manner designated by L.ndlord. Section 23.13: CORPORATE TENANTS, In lI1e eventlhe Tenant hereunder Is a corporation, the persons executing this lease on behalf ollhe Tenant hereby covenant and warrant that lI1e Tenanlls a duly conslituled corporation qualified 10 do business in lI1e slate in which landlord's Building Is located; .11 Tenants franchise, corporate and other lienable laxes heve been paid to dale; all future forms, reports, lees .nd other documents necessary for Tenant to comply with applicable laws will be filed by Tenant when due: .nd such persons are duly authorized by lI1e governing body of such corporation to execute and deliver II1ls lease (includingll1e warrant andlor power of allorney proviSions contained In Sections 1S.02, lS.03 and 19.02) on be hall of the corporallon. Section 23.14: LIQUIDATED DAMAGES; ATTORNEY'S FEES, When liquidated damages are specified anywhere In Ihis lease, it is understood and agreed that said sum is to be paid to Landlord because Landlord's aclual damages will be difficult or impossible to ascertain with accuracy. The obligation of Tenant set forth herein to pay Landlord's attorneys' lees In connecllon with Tenant's default shall include the obligation of Tenant to pay all reasonable attorneys' lees Incurred by landlord before, during and a~er trial and on appeal. S.ctlon 23.15: RECORDtNG, This lease shall not be recorded: however Landlord shall have the right to record a short form or memorandum thereof, allandlord's expense, at any time during thelerm hereof, and Tenant shall execute same. Section 23,16: AGENT OF LANDLORD. Agent and, if applicable, The Rubin Organization, Inc., has acted as an agent of Landlord in connection with the execution of lI1is Lease and shall not In any event be held liable to the landlord or to Tenant 'or the fulfillment or non.fulfillment of any of lI1eterms or conditions of lI1is Lease or for any action or proceeding that may be taken by Landlord against Tenant, or by Tenant against landlord. Any waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply wilh equal force and effect to, and as a waiver of any liability of, Agent and The Rubin Organization, Inc.. Section 23.17: HAZARDOUS MATERIAL, (a) As used herein lI1e terrn "hazardous material" means any flammable, explosive, medical, human or animal tissues or substances. hazardous or toxic substance, material or waste (including, without limitation, asbestos and chlorofluorocarbons) which has been, or In the future Is, determined by any state, federal or local governmental authority or any law, ordinance, slatute, govemmental rule or regulation to be capable of posing a risk of Injury to health, safety or properly andlor the use, storage and/or disposal of which is regulated by any governmental authority, including, without limitation, all 0' those materials and subslances designated as hazardous or toxic by the local governmant having jurisdiction over Ihe Premises, the U.S. Environmental Protection Agency, the Consumer Products Safety Commission, lI1e Food and Drug Administration or any other governmental agency now or hereafter authorized to regulate materials and substance. Tenant shall not cause or permit any hazardous material to be installed in lI1e Premises as a part of Tenant's Work or otherwise brought upon, used, kept, stored or disposed of in or about the Premises or the Shopping Center by Tenant, its agents, employees, contractors or invitees. Notwithstanding the foregoing, Tenant may handle, store. use and dispose of products containing smal1 quantities of hazardous materials (such as aerosol cans containing insecticides, toner for copiers. paints, varnishes and cleaning supplies) of insignificant quantities stored in sealed containers and used in accordance with manufacturers' requirements. (b) If the Premises, any equipment (including, withoutlimitallon, HVAC equipment), trade fixtures or other mechanical apparatus therein contain any hazardous materials installed by Tenant, its agents, employees, contractors or invitees, Landlord, at its elecllon, shall have the right to (i) cause Tenant to remove and properly dispose of same, an at Tenant's sole cost and expense, in accordance will1 applicable law and means and methods approved in advance by landlord and its professional consullants, or (Ii) perlorm Ihe removal and disposalthereo' itself, In which event Tenant shall reimburse Landlord, on demand, for the cost incurred by Landlord in doing so (including landlord's cost of professional consullants) and securing the certifications referred to below. (c) If Landlord requires Tenant to remove any hazardous material inslalled by Tenant, Its agents, employees, contractors or invitees, Tenant shall retain the services of an environmental engineer and a contractor, both of whom must be previously approved in wrlllng by Landlord. Tenant shan submit to Landlord for approvalll1e Insurance certificates of Tenant's environmental engineer and contractor, a written removal plan and detailed plans and specifications which shall disclose, without limitation, the dates on which such work is 10 be performed and the steps to be taken to protect the public, all public areas In Ihe Shopping Center, and the HVAC, waler, sprinkler, sanitary and storm systems from conlaminatlon during Ihe removal and disposal process. No work disclosed in the removal plan shall be commenced until Landlord has approved all aspects of such removal and disposal process and Tenant shall only perform such work in strict accordance with the process as approved by Landlord, If required by Landlord, Tenant shall close for business while such work is being performed and remain closed until the removal work has been completed In a manner satisfactory 10 landlord. Landlord reserves the right 30 ---. -.-.- . " 10 monitor Ihe performance of such work lrom time 10 lime and, i' Landlord believes Ihalsuch work Is being done In a manner which permits hazardous matenalto escape 'rom the Premises or olherwlse con,tllutes an unsale condition, at landlord's direction Tenant shalllmmedlalely cease work until suCh problem has been correcled to landlord's setlslactlon, Tenant shall replace any conlamlnaled equipnmnt or materials removed from lI1e Premises with new equipment or malerlal performing lI1a same function. All work performed by or on behall 01 Tenanl shall be performed In accordance with all applicable Governmental Requiremenls, inctudlng, wlthoutlimllalion, requirements requiring the keeping of a duly executed manliest which documents all sleps laken from the lime the hazardous matenal was removed from Ihe Premises untilll was lawfully disposed of In a dump site aulhorlzed 10 accept such hazardous material. landlord 'hall not be responsible In any way by reason of the factll1atlandlord has approved Tenant's environmontolengineer, environmenlal contractor, (he removal plan, the delailed plans and speCifications or made suggesllons, recommendations or modifications to any of the foregoing. Tenant and its engineer and contractor shall disclose to Landlord If anything suggested or recommended by Landiord does not comply with the Governmenlal Requirements, and Tenant shall be solely liable 'or such compliance. (d) It landlord elects 10 perform the removal of lI1e hazardous malerial ~om the Premises, landlord shall so nol/fy Tenant 01 Landlord's anticipaled commencement date 0' such work and, If required by landlord, Tenanl shall close for business not later lI1an such dale and remain closed unlil notified by landlord 10 reopen whereupon Tenant shall promptly reopen for business. Jf landlord performs such work II shall do so In compliance with all applicable Governmental Requirements. If directed 10 do so by Landlord, Tenant shall remove such of lis merchandise, personal properly and trade fixtures as shall be required by Landlord for the completion of such work or landlord, its contractors and sub-conlractors, may relocate Ihe sema within Ihe Premises or elsewhere in Ihe Shopping Center during the performance of such work; neither landlord, Agent, nor their contraclors or subcontraclors shall be liable to Tenant In any regard for any damage 10 or loss of such items or fer any other acts occurringl" the Premises during the performance of such work. (e) Tenanl shall comply wlll1 all applicable Governmental Requirements affecting the Premises, the operation of Tenant's business at the Premises. and the use and removal of any substances therefrom, including, without limitation, hazardous malerials installed by Tenant its agents, employees, conlractors or invitees. Such compliance shall include, Inler alia, (i) lI1e filing by Tenant 01 all governmenlal applications and registrations 'or all substances used, slored, manufactured, generaled or otherwise In the Premises; (ii) the obtaining 01 all licenses and permits with respect thereto; and (ill) Ihellmely filing Irom time to time, as required, 01 all reports and other matters required to be filed with governmental authorities having jurisdiction. (Q Tenant shall protect, de'end, indemnify and hold Landlord harmless aI, from and against all claims, actions, liens, demands. costs, damages. punitive damages, expenses, fines and judgments (Including legal costs and aUorneys fees) incurred by reason 01 any actual or asserted failure of Tenant to lully comply with the provisions of Ihis Section 23,17 and/or spills or other contamination of air, soil, or water by or resulting from any hazardous materials installed by Tenant, its agents, employees, contractors or Invitees at or around the Premises or lI1e Shopping Center or resulting 'rom removallhereof. (g) Upon ten (10) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver 10 Landlord a written stalement in form salis'actory to landlord certifying (i) if true, that Tenant has not disposed of eny 011, grease, loxic, or hazardous material, at the Premises or (Ii) that any such substances used, processed or generaled at the Premises have been disposed of property in accordance with all applicable Governmental Requirements. If Tenant is unable 10 certify either of the above, Tenant shall so notify Landlord and give landlord the details resulting In Tenant's inability 10 so certify. (h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease free of hazardous materials and in a condition which complies with all Governmental Requirements, recommendations of consuitants hired by landlord, and such other reasonable requirements as may be imposed by landlord. (i) This Section shall survive the expiration or sooner termination of this Lease. Section 23.1S: FINALIZATION OF CHARGES. Tenant's failure 10 objeclto any statement, invoice or billing rendered by Landlord within a period of thlrly (30) days after receipt thereof shall, at Landlord's option, constitute Tenant's acquiescence with respect thereto and shall render such statement, invoice or billing a final and binding account slated between Landlord and Tenant. Section 23,19: PRIOR LEASE, Deleted Section 23,20: FINANCIAL tNFORMA TION. Tenant shall at any time and from time to time within twenty (20) days of written request Irom Landlord, deliver to Landlord such financiallnfor'llation concerning Tenant and Tenant's business operations as may be requested by Landlord. any mortgagee or prospective mortgagee or purchaser or prospective purchaser, Section 23.21 : NOTICE TO MORTGAGEE, lithe holder 0' any mortgage which has a lien against the Shopping Center or any part thereof 'orwards to Tenant . written notice 0' the exislence of such lien, then Tenant shall, so long as such mortgage Is oUlstanding, be required to give to such lienholder Ihe same notice and opportunily to correct any default as Is required 10 be given to Landlord under II1ls Lease, but such notice of de'ault may be given by Tenant to Landlord and such lienholder concurrently, Section 23,22 : WAIVER OF JURY TRIAL, landlord and Tenant hereby waive all right 10 a trial by jury in any litigation relaled to this lease including any 31 ,._.;",;,:.~;;,.,.'_.,:,::.~~'~~. , '" 'I . >> .. !l g n I :z CAMP HILL SHOPPING MALL EXHIBIT "An PAGE 2 OF 2 ... . " ~.~~.:.,;,::~~~~:.z. EXHIBIT "D" SERVICES CHARGE SCHEDULE CAMP HILL SHOPPING CENTER HEA TING/COOLING SCHEDULE SERVICES CHARGE The Tenant's annual charge lor air supplied by Landlord shall be the sum 01 the capital lacilities charge, the electric energy usage charge, the maintenance charge, and the make.up air charge, as determined by this Exhibit -0-. (a) The cubic leet per minute (CFM) of conditioned air for the Premises ("Tenant CFM") shall be delermined in accordance with procedures described In the Design Criteria. Tenanl shall supply 10 landlord all data, information and calculations required 10 be supplied 10 Tenant, not later than Ihe Construction Commencement Dale. (b) The Tenanl's annual capital 'acilities charge shall be equal 10 One ($1.00) Dollar per Tenant CFM of conditioned air for the Premises, (c) The Tenant's annual electric charge for heatinglcooling shall be based on the following criteria: (1) Included as part 0' the CAM Sum, each lenanlwill be allowed a maximum alone (1) CFM of conditioned air per square 'oct of GLA of its Premises al no additional electric energy charge. (2) The annual electric energy Charge for the Tenant CFM shall be equal 10 14 KWH mulliplied by the Tenant CFM 10 the extent such Tenant CFM is in excess of one (1) CFM persquare foot 01 the GLA 0' the Premises, with such product being multiplied by the Landlord's KWH cost. (3) The Landlord's KWH cost shall be the landlord's total electric energy cosl for the Shopping Center divided by the total KWH purchased. (d) The Tenant's annual maintenance charge for heating/cooling shall be based on lI1e following criteria: (1) The Tenant's annual charge for maintenance 0' Ihe system supplying air to the Premises shan be equal to the Tenant CFM muUiplied by the Landlord's maintenance cost per CFM of conditioned air. (2) The landlord's maintenance cosl per CFM of conditioned air shan bell1e landlord's tolal cost to maintain the tenant conditioned air system divided by the sum of all the Tenant CFM for anlenants served by such system. (e) The Tenant's annual make-up air charge shall be based on the following crilerla, (1) Make-up air is that air which is exhausted by Tenant because 01 code requirements or because the air is contaminated by odor or temperature caused by Tenant's operations and cannot be returned to the system. Such operations include, but are not limited to, restaurants, beauty salons, pet shops, 'ast food, elc. (2) The quanl/ty 0' make-up air required by Tenant, hereinafter caned "Tenanl MA CFM", shall be determined in accordance with procedures described In applicable sections of the Design Criteria. (3) The Tenant's annual electric energy make-up air charge shall be equal to 15 KWH per Tenant MA CFM, muUiplied by the Landlord's KWH cost. . EXHIBIT "F" FAST FOOD CLUSTER This FAST FOOD CLUSTER TENANT EXHISIT (Ihe "FFC Exhibit") is annexed to and made a part 01 the Ghopping Center lease (the "Lease") by and between CAMP HILL SHOPPING CENTER ASSOCIATES, a Pennsylvania partnership, as Landlord, and JOHN LEE, an Individual, as Tenant 'or those Premises designated currenUy by landlord as Tenant Store Number L.5b (the "Premises") in the Camp Hill Shopping Mall, Camp Hill, PA and is execuled 01 even date with 1110 .aid lease. In the event a confiicl arises between lI1e provisions 01 this FFC Exhibit and any olher part of the Lease, the provisions of Ihis FCC Exhibit shall modify and supersede the confiicting provisions of such other part 01 lI1e Lease to the extent necessary to eliminate ouch confiict but not further. All terms which are defined in any other part of the lease shall have the same meaning when used herein. ARTICLE 1: THE FOOD COURT AREA Section 1,01: THE FOOD COURT AREA. The "Food Court Area" (sometimes re'erred to In this lease as Ihe "Fast Food Clusler") means and shall bathe area specifically designed for small restaurant operations situaled in the landlord's Building, including, without limitation the individual premises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area. Section 1,02: FOOD COURT SEATING AREA. The "Food Court Sealing Area" means and shall be the portion of the Common Areas which is made available by Landlord for seating purposes and shall be for the non.exclusive use by customers and patrons of the Food Court Area. Landlord shall furnish and install equipment, ftoor covering, lighting fixtures, decorative and permanent fixtures, ceiling, tables, chairs, accessories and other property in the Food Court Seating Area. landlord shall be the sole owner of said fixtures, equipment and property, and shall have the right to make changes 'rom time to time In the size, shape or location or both, of Ihe Food Court Seating Area and in the number, type and style of any or all aspects of the facilities, equipment and other property therein. Section 1,03: CHANGES BY LANDLORD. As between Landlord and Tenant, Landlord shall at al: times havelhe right and privilege of determining lI1e nature and extent of the Food Court Area and of making such changes, rearrangements. additions, or reductions therein and thereto from time to time which In its opinion are deemed to be desirable and for the best interest of a significant number of the persons usingU,e Food Court Area or which are made, pursuanlto Section 1.05 of this Lease, as a result of any federal, slate or local, environmenlal or other law, rule, regulation, guideline, judgment or order. landlord shall nOl, however, change materially the dimensions of the Premises. ARTICLE 2: USE Section 2,01: USE, Tenant shall use the Premises solely for the preparation, sale and delivery of food to the public 'or "carry-out" or for consumption in the Food Court Seating Area. Tenant agrees to sell only those food items specifically enumerated In Section !nl of the Fundamental Lease Provisions (those food items hereinafter sometimes referred to as the "Menu") and to maintain the highest standards in quality, portions of servings, and preparation of such food items. Tenant agrees to offer for sale each 01 the enumerated load items on the Menu and any failure to sell any of the items on the Menu or any subslitution for or addilion to such Menu without Landlord's specific written approval shall be deemed an Event of Defaull pursuant to Section 16.01 of this lease; and, in addition to any olher rights or remedies pursuant to this Lease, Landlord shall specifically have the right to terminate this Lease if Tenant violates this provision. Section 2.02: DISPOSABLE PRODUCTS, For Ihe purpose of serving food and beverages to the public, Tenant agrees 10 use only disposable paper or other equally degradable goods and utensils, including, but not limited to, cups, wrap materials, plates, trays, boals, straws, bags, napkins, spoons, forks, knives, stir sticks and the like (collectively the "Disposables"). landlord shall have the rtght to develop a uniform design 'or all such Oisposables as may be required in the operation 0' the Food Court Area. All Disposables shall bear the name and/or logo of Tenant, or the uniform design developed by Landlord, if any, Tenant agrees, In any event, to use only Disposables orthetype, size, material and color approved by Landlord. Tenant shall not be required to purchase such Disposables from Landlord, but landlord may, for the convenience of both parties, develop a local source of supply. Tenant shall at all limes have Ihe right to develop its own source of supply for such Disposables, provided only that the Disposables . meet the requirements slated herein. Section 2,03: EMPLOYEE DRESS AND CONDUCT, Employees shall at all limes be required to present a clean and well-groomed appearance and shall wear uniforms, Ihe color and style of which are to be subjeclto Landlord's approval. Tenant may make such arrangement with Employees as it deems appropriate regarding the purchase and maintenance of standard uniforms. However, Tenant shall require its standard uniform to be worn by all Employees at all times while on duty in the Premises. Landlord may, at any time, direct Tenant to require any Employees not so attired to immediately conform to the requirements or leave the Premises. . . ARTICLE 3: FOOD COURT CAM SUM & FOOD COURT CAM CHARGE Secllon 3,01: FOOD COURT CAM SUM. As a tenant of the Food Court Area, Tenant agrees 10 pay and shall pay to landlord, commencing on the Rent Commencement Date and each and every monlh and as Additional Rent thereafter throughout the Term, Tenanl's share, as hereinaftor set forth, of lI1e "Food Court CAM Sum", The term "Food Court CAM Sum" means and shall be all sums incurred in a manner deemed by Landlord to be reasonable and appropriate and lor the bestlnlerests of the Shopping Center In connection with the operation and maintenance of the Food Court Seating Area (as the same is reduced, expanded or otherwise altered Irom time to time) Including, withoullimitation, the following: <a) the cost of operating, malnlainlng or repairing any HVAC equipment specifically installed to serve the Fast Food Seating Area; (b) the cost 01 all Insurance specifically required for the operation 01 the Fast Food Seating Area (including, without limitation, Insurance against fire and other casualties, bodily Injury, personal Injury, properly damage, product liability, sign insurance and any other Insurance required to be carried by Landlord for Ihe Fast Food Seating Area; (c) the cost 0' maintenance, repair and/or replacement of interior landscaping, decorallng, lighting, lighl/ng systems, eleclrlcal syslems, plumbing systems, HVAC Syslem and any other syslems servingll1e Fast Food Seating Area; (d) the cost of Irash, rubbish and garbage removal sef\'ice; (e) cost of sanitary conlrol; (Q the cost of maintenance, repair andlor replacement of furniture and fixtures; (g) Ihe cost of all supplies and equipment necessary properly to clean, operate or maintain the Fast Food Seating Area: (h) the cost of all personnel required by Landlord satis'aclorily to supervise, Implement, malnlaln or operale Ihe Fast Food Sealing Area In a high standard of cleanliness and efficiency; (I) Ihe cost of any securily personnel thaI may be required by Landlord specifically for the Fast Food Sealing Area; OJ amortization of the fumilure, fixtures and equipmenl of the Fast Food Sealing Area; (k) the cost of any oll1er i1em or personnel deemed by Landlord necessary to operate or malnlain the Fast Food Seating Area In a first class manner, and (I) landtord's supervisory charge In an amounl equal to fifteen percent (15%) of the total aggregate cost 01 operaling and mainlalnlng lI1e Fast Food Seating Area, including, without limitation, those things listed hereinabove. landlord may have heretofore elected to spread, and may hereafter elect to spread, Ihe amount of certain items of the Food Court CAM Sum over such period of years as Landlord shall determine by amortizing them over such periods instead of including such amounts enl/rely in lI1e year In which expended or incurred, in which event, the annual amortization amount shall be deemed to be an expense Incurred during each year of lI1e amortizal/on period, notwithstanding that such expenses may have been expended or incurred prior to the execution hereof. Section 3,02: FOOD COURT CAM CHARGE, Tenant's share of lI1e Food Court CAM Sum (Ihe "Food Court CAM Charge") shall per Year belhe producl obtaining by multiplying the Food Court CAM Sum for that Year by a fraction, the numerator of which shall be the GLA of the Premises and the denomlnalor of which shall be the tolal GLA of Ihe Food Court Area (to wit, thetolal GLA of all Food Court Area tenants only). Tenant underslands and agrees thai the CAM Sum set forth in Article S 0' Ihis lease does not include the Food Court CAM Sum and Tenant's obligation to pay the Food Court CAM Charge shall in no way reduce Tenant's obligation to pay Tenanrs CAM Charge as set forth in Article S of this Lease. Section 3,03: PAYMENT OF FOOD COURT CAM CHARGE, (a) Tenant shall pay to Landlord, as Additional Rent, Tenant's Food Court CAM Charge. Tenant shall pay landlord, on the Rent Commencemenl Date and on the first day 0' each calendar month of Ihe Term Ihereafter, amounts estimated by landlord to be Tenanrs monthly Food Court CAM Charge. Landlord may adjust any of said estimates at lI1e end of any Year on the basis of landlord's experience and reasonably anticipated costs. (b) Within ninety (90) days 'ollowing the end of each Rent Year, Landlord shall lurnish to Tenant a statement covering such Year just expired, certified as correct by an independent public accountant or an authorized representative of Landlord, showing Ihe Food Court CAM Sum and the amount of Tenant's Food Court CAM Charge for such Rent Year and lI1e payments made by Tenanl therefor with respect to such Rent Year. II Tenanrs aggregate monthly paymenls therefor with respect to such Rent Year are greater than Tenant's share, Tenant shall receive a credit for the excess against monthly payments next becoming due to landlord; if said payments are less than said share, Tenant shall pay to Landlord lI1e difference within len (10) days of demand by Landlord. (c) After landlord has 'urnlshed its annual statement to Tenant pursuant to Section 3.03rbl hereof, Landlord shall make i1s records relating to Tenant's Food Court CAM Charge for the immediately preceding Rent Year available for Tenant's Inspection within ten (10) days after receiving a written request from Tenant to inspect same provided Tenant has previously paid Landlord Ihe Tenant's share of the Food Court CAM Sum. (d) Tenant acknowledges and agrees that Tenant's Food Court CAM Charge is in addition to not onty Tenanrs CAM Charges but also Tenant's Utility Charges pursuant 10 Article 6 of Ihls Lease, Tenant's Tax Charges pursuanlto Article 2 of Ihis lease and all of the other charges set forth, without limitation, In Pace 1 of this lease. F-2 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 1998-04327 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CAMP HILL SHOPPING CENTER VS. LEE JOHN ET AL R. Thomas Kline . Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: LEE JOHN D/BI A TOKYO but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK to serve the within NOTICE AND COMPLAINT County, Pennsylvania. On October 1st. 1998 the attached return from YORI< , this office was in receipt of County, Pennsylvania. Sheriff's Costs: Docketing Out of County Surcharge Dep. York Co 18.00 9.00 6.00 82.40 $115.40 MCNEES, WALLACE & NURICK 10/0111998 So ans::;.'...;s:/ /~~~~/ R:/'''I'homas J\lJ.ne, erJ. f Sworn and subscribed to before me this 1.4-1- day of (Ar;fi." . 19 9go A. D. qt" Q. nf.deL~ ~ . Prothon6 ry . ... Yo In The Court of Common Pleas of Cumberland County, Pennsylvania Camp Hill Shopping Center Associates VS. John Lee, D/B/A Tokyo No, 98-4327 Civil ,19 Now, 8/24/98 ,19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of York County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~V~fde~ Sheriff of Cumberland County, PA ~,l_ C",...;:) .;7'l - l.._ ~J:". = "- o ::r ("0 Affidavit of Service ... I.;~ ~.[~:. i~~\ I::, .~:.' '-' ~~ '...:.1 ~:: {; Now'~.. ,~_. u.. If. S~e~r 17 .2 1998 at 7:50 '-' o'clock P M, served the ~:;., within Complaint in Civil Action upon John Lee d/b/a Tokyo at 20 Water Rd., Dillsburg, PA 17019 by handing to Fong Lee, wife a copy of the original Complaint in Civil Action and made known to her the contents thereof. So answers, fi1--L~ William M. Hose Sheriff of York County, PA NOTARIAL SEAL MEUSSA J, SHAFFER, NolDry Pubflo Oil): of York, Y9rk Counly COSTS SERVICE MILEAGE AFFIDAVIT $ S me this 29tithiy ~frseptember , 19 ~ /1ft"JL/;~::~b'~ 9;1/f~ r I $ . """',' ,:) ,.-:'> () C' (.,J II Cl ) ,. ") ~-i i '-1 i i -n r:-:..: I ,";"1 t"" , 0 ) , c; -'" " - , .';"1 ~:~ c '.J , '" :'; ~.'i U"1 .J.) -0: