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HomeMy WebLinkAbout01-04434 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW KIMCO DEVELOPMENT OF GIANTS, INC., Plaintiff, vs. No. Q l -'413 y l.. W ~ ~,~- - " L ZHENTING LI, Defendant NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance. personally or by attorney and filing in writing with the Court your defense or objections to the claims as set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association P. O. Box 186 Harrisburg, PA 17108 Telephone Number: (800)692-7375 APPEL & YOST r By: William J. as idy, Jr. Attorney I.D. .31724 Attorneys for Plaintiff 33 North Duke Street Lancaster, PA 17602 (717)394-0521 day of each calendar month during the Lease Term which began October 1, 2001. The monthly rent for second year is One Thousand Four Hundred Fifty-eight and 75/100 ($1,458.75) Dollars. The monthly rent for the third year is One Thousand Five Hundred Thirty-one and 25/100 ($1,531.25) Dollars. The monthly rent for the fourth yeaz is One Thousand Six Htmdred Seven and 50/100 ($1,607.50) Dollars. The monthly rent for the fifth year is One Thousand Six Hundred Eighty-eight and 75!100 ($1,688.75) Dollars. The Lease Term is to expire on September 30, 2006. COUNTI E7ECTMENT 6. Paragraphs 1 through 5 are incorporated herein by reference. 7. The Plaintiff is the Owner/Lessor of the property located at Giant Foods Plaza-- Store No. 5, Gettysburg Pike & U.S. 15, Upper Allen, PA, which is described in Exhibit "A". The Defendant is the Lessee of the premises located in the Giant Foods Plaza-- Store No. 5, Gettysburg Pike & U.S. 15, Upper Allen, PA, which is described in Exhibit "A". 9. The Defendant has failed to pay the rental amount of One Thousand Six Hundred Twenty ($1.620.00) Dollars from February, 2001, through May, 2001 for a total due of $6,480.00. 10. Because the rental charges due in the amount of Six Thousand Four Hundred )eighty ($6,480.00) remains unpaid, Defendant owes and the Plaintiff claims late charges at the rate of a Fifty and 00/100 Dollar ($50.00) late fee per month for a total of Two Hundred Dollars Dollazs ($200.00) ,,.,,a- 11 Common Area Maintenance fees, real estate taxes and sewer bills must also be paid by the defendant under the lease. There currently is owed Seven Hundred and Twenty-four dollazs ($724.00) in Cam Chazges, Three Hundred Forty Five Dollazs ($345.00) in real estate taxes and Three Hundred Seventeen Dollars and 38/100 ($317.38) due from the defendant for a total due from the defendant in the amount of Fourteen Thousand One Hundred sixty One Dollazs and 99/100 ($14,161.99). 12. Defendant is presently in possession of the aforesaid premises. 13. Notice was sent on January 26, 2001, that Defendant was in violation of the Lease for nonpayment of the rent and demanding that the defendant vacate the premises. A copy of the notice is attached to this complaint, marked Exhibit "B" and incorporated by reference. 14. Despite the terms of the Lease and the Notice to Quit, Defendant has failed and refuses to vacate and surrender possession of the premises. WHEREFORE, the Plaintiff requests that the Court enter a judgment in favor of the Plaintiff and against the Defendant, Zhenting Li, for possession of the premises located at Giant Foods Plaza--Store No. 5, Gettysburg Pike & U.S. 15, Upper Allen, PA, which is described in Exhibit "A". COUNT II BREACH OF CONTRACT 15. Pazagraphs 1 through 14 are incorporated herein by reference. 16. The Plaintiff claims damages in the amount of Fourteen Thousand One Hundred _~„ Sixty-One and 99/100 Dollazs ($14,161.99) for Defendant's failure to pay rent under the Lease as well as for interest, costs and attorney's fees. 17. The amount of chazges due through May 1, 2001 is Thirteen Thousand Nine Hundred Sixty-One and 99/100 Dollars ($13,961.99) and late charges provided for in the lease of Two Hundred Dollars ($200.00) for a total of Fourteen Thousand One Hundred Sixty One and 991100 Dollars ($14,161.99). WHEREFORE, Plaintiff requests that this Court enter judgment against the Defendant, Zhenting LI, for unpaid rent and late charges in the amount of Fourteen Thousand One Hundred Sixty-One and 99/100 Dollazs ($14,161.99), plus costs, accrued late charges and attorney's fees. APPEL & YOST By: Lancaster, PA 17602 (717)394-0521 Dated: ~ ~j(,'Q Attorneys for Plaintiff 33 North Duke Street ff~~ VERIFICATION ~j~"~h~Q Ftitt~~t^~ states that he/she is l~ Tct ~ Co ~ ~2L't6ir of Kimco Development of Giants, Inc., that he/she is authorized to make this Verification on its andhis/her behalf, that the facts set forth in the foregoing Complaint are true and correct to the best of his/her knowledge, information and belief, and that the foregoing is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. KIMCO DEVELOPMENT OF GIANTS, INC. sy: ~iG.!l~~I~ ' rslefi/,~ Dated: ~j -JO~ (~~ ASSIGNMENT AND ASSUMPTION OF LEASE TENANT CODE N0.37401e1 KNOW AL.L. MEN BY THESE PRESENTS, that the undersigned Assignor, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, hereby assigns, transfers and sets over unto the undersigned Assignee, ail right, title and interest of Assignor in, to, and under the lease agreement described on Exhibit "A" attached hereto (this lease agreement is herein referred to as the "Lease"), to have and to hold unto Assignee, its successors and assigns, for the balance of the term of the Lease, subject to the rants, covenants, terms, conditions and provisions contained in the Lease together with the security deposit held by Landlord, if any; AND Assignee acknowledges that it has read and reviewed the Lease and all amendments thereto; Assignee hereby assumes the performance of all of the terms, , covenants and conditions of the Lease; Assignee hereby agrees to pay the rents specified by the Lease; Assignee hereby agrees to perform all of the terms, covenants and conditions of the Lease required to be pertormed by the tenant under the Lease; PROVIDED, NEVERTHELESS, that nothing herein contained shall, as between the landlord under the Lease (hereinafter referred to as "Landlord") and Assignor, release or relieve, or be deemed to release or relieve, Assignor or any guarantor of the Lease of or from any obligations under the Lease and Assignor shall continue to be and remain liable under the 'Lease in all respects as though this Assignment had not been made. Assignor hereby waives any and all no{ice from Landlord of default of Assignee under any of the terms, provisions, covenants or conditions of the Lease, and Assignor hereby consents to the granting, without notice to Assignor, by Landlord to Assignee of any waiver, indulgence or extension of time or any amendment or modification of the Lease. TO INDUCE Landlord to grant its consent as provided herein, Assignor and Assignee each hereby agrees, represents and warrants that it ha¢ no claim against Landlord with respect to the Lease and no default on the part of Landlord exists under any of the terms ar conditions of the Lease. EACH of Assignor and Assignee hereby jointly and severally indemnify, defend and hold Landlord harmless from and against any and all liability, cost and expense (including, but not limited to, reasonable attorneys' fees) arising from any claims for brokerage commissions or other compensation arising out of this assignment of Lease. ASSIGNEE acknowledges that certain Common Area Rent, Tax Rent and other obligations under the Lease may have accrued but not been satisfied by the Assignor and that, without releasing Assignor, Landlord will aisD look to Assignee for the payment and performance of ail obligations under the Lease. IN the event there is more than one Assignor or Assignee or both, then the obligation of the Assignor or Assignee as the case maybe, shall be joint and several: ' ~. IN WITNE~S WHEREOF, Assignor and Assignee have executed this instrument as of the Z I` day of ']'1t,l~Jvt=ice , 1997. ASSIGNOR: ~.It~ G'~91>J KIM CHAN Social Security No.: 135-82-7982 WITNESSES TO ASS/~/I[G/NOR: /~//~/yam • PiDTARIALSEAL JACQUELINE K. DUKES, Notary PU611e Gettysburg, Adams County Ml' Commi~slon Expires DcL 25,1998 5N7i97 CB 7:ISI7E13741CHAN.014WSSN.DDC ASSIGNEE: ~_~ _ -- ZHENTI LI Social Security No.: 065-78-5775 WITNESSES TO ASSIGNEE: il~~-- t;O.N~T ACCEPTED AND CONSENTED T0. mLANDLORD: KIMCO DEVELOPMENT ~r OF GIANTS, INC. BY: Name' _ Micha .Flynn Title: tdes,t- STATE OF ) ss: COUNTY OF ) WITNESSES: Acknowledoement of Assignor I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ,known to me to be the individual described herein who executed the foregoing Instrument, and acknowledged that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this day of , 1997. i•~ Notary Public (Notarial Seal) My Commission expires: Acknowledgement of Assignee STATE OF ) ~~. } ss: COUNTY OF ) ~'vr k I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared z e '~• ,known to me to be the individual described herein who executed the foregoi g instrument, and acknowledged that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this aS day of Feb , 1997. My Commission expires: Notary Public-2.~--,.~--------- (Notarial Seal) raor<.n?n~sea~ TIIObinS U. BP.L';J;icVdq, ryolary ~ ubllc west rnnnclt~ ;? il'I rYYft, Y a>t Caunly rr'ry• Corv;•Iss?, n t:xi?iron r,;,rl 70, Y497 1/23/97AMS T:151TEt3741CHAN.0141ASSN.DOC ExHlBlr "A'. Date of the Assignment: # February 1, 1997 Lease Documents Lease dated as of: September 18, 1991 First Amendment to Lease dated as of: :, January 17, 1997 Shopping Center: Assignee's notice address: Giant Foods Plaza Upper Allen, PA 209 Madison Street, Apt. 4C New York, NY 10002 Assignee's telephone number: (212) 346-9765 Landlord's notice address: 3333 New Hyde Park (Road, Suite 1D0, P.O. Box 5020, New Hyde Park, NY 11042-0020. 3 1@3/97 CMB T:151TE17741CHAN.0141gSSN.DOC `w.:, j , ~ .~ ~ ~~ . 1 f ~ .. . itwi+ad 3(2oJiNP ~i~t'~, t~ r4 ~ ' ~}CiVpNT AiitlltEtd t3YTtt1~3E SgtVTB, Thai ihs Urrderatgnect Assignor, tar goad :xnd vtiuabte canaTderatiun the rasaipt grid sufficiency vt Which !a hanby ztciutaWiedged, ~+~i~y ircRigns, tr¢ns€err end seta pvor unto the usFtJsraipned Assiprtoe. aft ~~. tilts and 4nterest tit Assigner Tn, to, and antler ttre lases ayraensent deacribod on rchi '_'!~ attact•~d'hsreta ~tttts tasse agrawnent is gaTein YQferrod to ss thu "Lease"), to tittiVe and t4 hrid unto Aastpnee, its auccsscara :nc1 assigns, for the btanoe o€ ih. team of thM i,e,#sa, aub}ect to the rents, ~'ovenFtrtTic, fierma, sandiuana pad {xavisiCna cant8tned in ttie t_eatis tageCt~r vrtth ttta s+ecttrity deposit h81d 'by ~.ant9lard urtder the ease in the :~rr~tutr~ora„~ ;~cFa, A88it3KiaE ackn~it:dgea that ~it has read and reviewed the t.eaaa and sit •ittttittsd€6'1lti1t8 4heYeti3; Atisignaa tteraby *ssumes the psriarmance. of all a3f the tctrrns, uvvenagta unit tlbPiditiana of the tease; As~ign~e;tiat+eby ~grr~as ta:ptyttro rc+nia s>?vcitied by ttrt! Laxst3; ,gailgatss taArstbg+ ayreaa to ptrrfarni tilt oT ihtr -'tarns, cavsnantir and oondtdona of the teas$ regUirsdi tv be pertorrnr-d 8y tree {4snent•ut><irfr ttrti Litase inCtudi»a, but net dirnlted to, ustcig the t.exx~d f+retrttt+bu crroty icr airs purpot~eti,:spst~€fCatiy ~vrmTtted irgdsr the L.sart. KtOTHthtt3 tserres6n contained irh>til, as betw«an ihs tanditarti under the i,sstas (hereinailer rstorrnd fo as "Lendiartt") and Asrtt;}nor, rateeee ~ vb, rn i7t dssmard to fetaaae ar i~iiave, Assigner rrr Yny ~uarantar oaf lhtr L~atre'tltftrt strty +;rbii~ittioris tiridar ttw t.4iy1 /ltd (jI1~YbISty. lvttteaavor, Assignor end ~varAntbr, if afsy, shrill wynttht+b to ba rnd rr3hrAin tipble r~rrdsr trt6 dvese.end •gusranty in.rtli respcatt as though thie< Asatgnmant had aril boon msd~e. ~tssiQnar {sareby uvreiuaa any stud alt notice trorn. ta>tdltsiYi cr€ dgtauit a# Asstgnue urcdsr any qr the •terma, prxstrtrtot'srs, :wvanxnts p€ =ovndttipt!ai ~t the LeaSb, arul AIGi.Otiar hereby Cerrsfen2s ts> thv grar+ting, wit+rout >tiatice to ,tlsi~igrtcrt by irendltutS 'ia Aasigne# of >iny. waiver, iiiduigaruas Ar ePCtorrstaa rrf limn rrr ~ .iimentlmnnt to •tsr rrrtxt)fiasfroti OT the Ltraise. TO PhTLfUGE tandlard ttr grant its cnnssnt .es pruvidati t»rotrr, flssiflncr and Aastynee ersGtr hsrrby agrnas, reprassnta irnd .warrants .ttutt 9t :has ,no :atairrn •sgainst t.i!tndiQrti µr~h raapsoC tC tite •Lesae.aftd no tiafauit an ttiv par# erY t_r<tXtiord Axiate .trader any ctth~;gtrrrq or oondilianu trf the E.ease. ABSit'rtiG7)ti and Asalflnea hnrohy jcintiy yrrd asveraHy~igdec>tnffy, .defend .and ht7id t.andfard harmless from and ~psrtna2 +iriy slat! silt -tatxilfty, cast s{uf ext?o+we (+rrairtdtttq, buk nai firtlitsd tg, rpBSOn¢bitr .ntinrneya' tetra} sriainq frnm any.~oiatms .tor bnokerrrgs comrnicsiang ar other compQP?r}rltion sriainp net of this assignment of Lssse.. ASSi4si't')<'E #~Gkh4bylU~gt+6 #~'i9t Gartraln ~U7ttmptt ;Arse t~At, 3~ Aasni Gttd other obSfgt+ticnrr under the {,geyyr ?nsi3' ~titVB ~+GCruMd but rrt+t risen satisC+ed by :rtes As:sipnor and that, withaut raisaatnq Atisiytrt~r., Lsttdtorrt w`si1 sitars tack to AsayPnss for tree payment and.puriarmsnca o€ at6 crbligaltpn; unsaer.#hts.tsr~ltka: IN the avant there is mare thAry qn~ Aystignpr ar.AxNi~itsP or .bath, tt)et) trap Gbiigtitlisri of the Assignors yr Asslpnesi ets the i~tse m+xy be. rshatt t~Jpint ^rKt st-vvrsL It3 WtThIESS WFlEf2E.t3E, Aapignt:;~.. pad Msk~nrttc- trAYa s3xeauted this fnstrUment sa€fertive as nT fhe data of the Anatgnmr i .. ZTfi`NTttVG Lt 88 lio. ~~ T1d1TE177AOGt W fV.07 ~pL~HLa13, pC)i: A83-CNgR: VV1~'tvtr{iSE9 Tb AS~Ifa1N4?R ;. ~, ~^vY 3+i~.~ ASSIGNEE: NG SHE G ZHENG SS No. 755-88-6902 , ACCEPTED AND CONSENTED TO: ichael J. Flynn President STATE OF ) ss: COUNTY OF ) WITNESSES TO ASSIGNEE 1 HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZHENTING LI, known to ins to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. , WITNESS j y and ar d fficial seal in the County and State last aforesaid this ~_ day of , 1999. My Commissio Notary Public Notarial Seal (Notarial Seal) carotins tat, Notary Public Lower Alien Twp., Cumbedand County My Commission Expires Oct. e, 2001 Member, Pennsylvania Association of Notaries Acknowledgement of Assignee STATE OF ) } ss: COUAITY OF ) I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZHENG SHENG ZHENG, known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. 1 WITNES hand a d official seal in the County and State last aforesaid this day of , 1999. Notary Public (Notarial Seal) T:1S17EV3741CNgN.0141asgn.doc as My Commission expires: Notedal Seal Caroline Lai, Notary Public Lower AllanTwp., Cumbedand County My Commission Expires OcL 8, 20D Member, Pennsylvania Association of Notaries 2 3/1/99 LANDLORD: KIMCO DEVELOPMENT OF WITNESSES TO LANDLORD: ~~ GIANTS, INC, ~. ... ~ , . EXHI6IT "A" Effective Date of the Assignment: March 1, 1999. Lease Documents Lease dated as of September 18, 1991. Letter Agreement dated as of September 18, 1991 First Amendment to Lease dated as of January 17, 1997. Assignment and Assumption of Lease dated as of February 1;1997. Second Amendment to Lease dated as of February 26, 1999. Shopping Center: Assignee's notice address: Assignee's telephone number: Landlord's notice address: T:IS ITEU 741CHAN.0141ASGN.DOC Giant Foods Plaza Gettysburg Pflke & US 15 Upper Allen, PA 17055 Zheng Sheng Zheng 371 Broome Street, #28 New York, NY 10013 (717)766-1334 3333 New Hyde Park Road, Suite 100 P.O. Box 5020 New Hyde Park, NY 11042-0020. 3 3/17/9 as .. FIRST AMENDMENT TO LEASE J TENANT CODE: 374-t)14 THIS FIRST AMENDMENT TO LEASE made as of thel7th day of January, 1997 by and between KIMCO DEVELOPMENT OF GIANTS, INC. (hereinafter referred to as "Landlord") and KIM CHAN (hereinafter referred to as 'Tenant"); which terms "Landlord" and 'Tenant" shall include the successors and assigns of the respective parties. WITNESSETId: WHEREAS, by Lease Agreement dated September 18, 1991, Landlord did lease and demise unto Tenant certain premises therein more particularly described in a shiopping center at Upper Allen, Pennsylvania.' WHEREAS, the parties hereto desire to amend the Lease. NOW, THEREFORE, in consideration of the premises and the sum of Tern and no/100 ($10.00) Dollars and other good and valuable consideration, in hand, paid by Tenant to Landlord, the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows: 1. The term of the Lease is hereby extended for an additional period of two (2) years so that the term of the Lease shall now expire on September 30, 2001 (the "Expiration Date'. Tenant agrees and acknowledges that there are no options to extend the term of the Lease beyond the Expiration Date. 2. Commencing October 1, 1999, and continuing through and including September 30, 2001, the annual Base Rent payable by Tenant to Landlord shall be as follows: MONTHLY LEASE YEAR ANNUAL BASE RENT INSTALLMENT 10/1/99 - 9/30/00 $18,690.00 ~ $1,557.50 10/1/00 - 9/30/01 $19,440.00 $1,620.00 3. Tenant's address for notice purposes is: 209 Madison Street, Apt. 4C, New York, NY 10002 and Landlord's address for notice purposes is 3333 New Hyde Park Road, Suite 100, P.O. Box 5020, New Hyde Park, NY 11042-0020. 4. it is mutually understood and agreed that the Lease shall be and remain in full force and effect, except as same is specifically modifiecl and amended hereby. 5. Tenant acknowledges that, to Tenant's knowledge, no default exists on the part of Landlord under the Lease as of the date hereof. 6. In the event of a discrepancy between the Lease and this Amendment, this Amendment shall prevail. IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of the day and year first above written. LANDLORD: KIMCO DEVELOPMENT OF GIANTS, INC. By: Na Tit : Mic 1 J. Flynn rest WITNESSES: ''IrLt~,.~.e r~1 1/17/97 CMB T:~.S1TE13741CHAN.01411STAt~ND.DOC ,LEASING ~ LEGAL CONST. -~ . ~.:/ TENANT: k,l-~~ ~~ KIM CHAN Social Security No.~F;,/7 (3. j" WITNESSES: ~~. . ''; '~L7~ ~~ ~ 1~ t ~ ~ NOTARIAL SEAL (( i' ^~ JACQUELINE K. OUKES, Notary Public I IY" Gettysburg, Adams County My Commission Expires Oct. 25,1999 INDIVIDUAL ACKNOWLEDGEMENT FOR TENANT: STATE OF ) ~~r-z-~y~~~e~..~ <-- ss: ~J COUNTY OF ) ~-!' c( ~_, •t ~- I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared KIM CHANG known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this 3 day of ~iQ.~.~-G~ 1997. i' My1Commission expires: Notary Public (Notarial Seal) NOTARIALSEAL r ,1,,~,_„~~. ~~ (.~~e~ JACQUELINE K. DUKES, Notary Public / ~ Gettysburg, Adams County f My Commission Expiros Ort. 2$,1999 Y I/17l97 CMB T:LSITE~3741CHAK0141ISTAMEND.DOC ~~a~ _ _ _ ~ i ~ . ~,/ e LEA51N~ !'' LEpAL CONST. SECOND AMENDMENT TO LEASE TENANT CODE: 374-014 THIS SECONCt AMENDMENT TO LEASE made as of the 26th day of February, 1999, by and between ICIMCO DEVELOPMENT OF GIANTS, INC. (hereinafter referred to as "Landlord") and ZHENTING Ll (hereinafter referred to as'Tenant"}, which terms "Landlord" and "Tenant" shall include the successors and assigns of the respective parties; WITNESSETH: WHEREAS, by Lease Agreement dated as of September 18, 1991, Landlord did lease and demise untd Kim Chan certain premises therein more particularly described in a shopping center at Upper Alien, Pennsylvania; and WHEREAS, b~ Letter Agreement dated September 18, 1991, Landlord and Kim Chan did agree to certain modifications of the Lease Agreement therein more particularly described. WHEREAS, by First Amendment to Lease dated as of January 17, 1997, Landlord and Kim Chan did agree to certain modifications of the Lease Agreement therein more particularly described; and WHEREAS, by~Assignment and Assumption of Lease dated as of February 1, 1997, Kim Chan assigned her interest in and to the Lease Agreement to Tenant (said Lease Agreement as amended and assigned hereinafter referred to as the "Lease"). 4 WHEREAS, the parties hereto desire to further amend the Lease. NOW, THEREFORE, in consideration of the premises and the sum of Ten and no/100 ($10.00) Dollars and other good and valuable considerations, in hand, paid by Tenant to Landlord, the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows: 1. The term of the Lease is hereby extended for an additional period of five (5) years so that the term of the,Lease.shall now expire on September 30, 2006 (the "Expiration Date"). Tenant agrees and acknowledges that there are no options to extend the term of the Lease beyond the Expiration Date. ~ ' 2. Commencing October 1, 2001 and continuing through and including September 30, 2006, the annual Base Rent shall be as follows: 1 LEASE YEAR ANNUAL BASE RENT MONTHLY INSTALLMENT 10/1/2001-9/30!2002 , $16 665.00 ' ~ ' '•~ $1 388.75 10/1/2002-9/30/2003 $17505.00 $1458.75 10!1/2003-9/30/2004: $18 375.00 $1 5$1.25 10/1/2004-9/30/2005 $19 290.00 $1 607.50 1 0/1 /200 5-9/3 012 0 0 6 $20 265.00" '' $1 6 8.75 3. Tenant's address for notice purposes is: 210 East Portland Street, Mechanicsburg, Pennsylvania 17055; and Landlord's• address fo_r notice purposes is 3333 New Hyde Park Road, Suite 100, P:O.~t3ox 502b tJ®w 1.lyiie Park, N1C 11042=0020. . ., 4. It is mutually understood and agreed that~the Lease shall be and remain in full force and effect, except as the, same is specifcally..;modifed,_ and amended hereby, and Landlord and Tenant hereby ~ ratify -anii confirm tale L'ea~e as amended hereby. Without limitation of the foregoing, Landlord hereby, confirms its, grpnting, of the Leased Premises to Tenant, and Tenant hereby confirms Its acceptance of tile. Leased'Premises on•ail of the terms and conditions of the Lease as hereby amended.. ~- . J T:15ITE13 741CHAN.OI412NDAMEND.DOC ) .. .. ~ ' _. . , 3/19/9 as • ~:. l`~~vs~~ /i1~o I ~p . / ~ } 5. Tenant acknowledges that, to Tenant's knowledge, no dQfault exists on the part of Landlord under the Lease as of the date hereof. •• ~ ~ • 6. In the event of a discrepancy between the Lease and this Amendment, this Amendment shall prevail. 7. If not defined herein, all capitalized terms used in this document shall have the meaning ascribed to them in the Lease unless the context otherwise requires. IN WITNESS WHEREOF, the Landlord and Tenant have executed this instrument as of the day and year first above written. LANDLORD: KIMCO DEVELOPMENT OE VlIITNESSES:.. . NIGi+~ GIANTS, INC. ~ ~ ~ .. -~ v _ . sy: Na e: T e: ichael J. Flynn ..:. President ~.... . TENANT: ~ S~ ~ x ZHENT NG LI U Soc. Sec. No. 065-78-5775 STATE OF ) ss: COUNTY OF ) INDIVIDUAL ACKNOWLEDGMENT a FOR TENANT: I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZHENTIIJG LI, known to me to be the individual described herein who executed the foregoing instrument,.and acknowledged that he executed the same. WITNESS y and a fficial seal `iri the County and State last aforesaid this day of , 1999: My Commission expires: Notary Public (Notarial Seal) Notarial Seal Caroline Lai, Notary Pubilc Lower AllenTwp.,CumberlaRdCounry ' My Commission Expires Oct. li, 2001 Marribar, nnsylyenla Associalton of Notaries ~, T:\SITE1374\CHAN.01412NDAMEND.DOC 2 . 3/19/9 as ,~.~~~ WITNESSES: . w u,wo Constr SHOPPING CEfVTER LEASE SITE NO.: 374 - Store 05 2 LANDLORD: KIMCO DEVELOPMENT OF' GIANTS, INC. 3 TENANT: xlrt cxFiN 129 Gettysburg Pike 4 LOCATION: Mechanicsburg, PA 17055 5 DATED A5 OF: September 18, 1991 b 1. Leased Premises 7 1. Landlord leases to Tenant, and Tenant leases from Landlord, the Leased Premises shown on 8 attached Exhibit "A", which for all purposes shall be deemed to contain 1 , 5 0 0 square feet 9 of space (the "Floor Area") in the Shopping Center shown thereon. 10 Z. Lease Term ll 2. •The term'of this •leas4 j"Lease Term") and•~Tenant°s obii scion to.pa .Rent-shall -commence 12 October 1, 1991. -----=------- ' 13 The Lease Term 14 shall expire without prior notice on Septembet 30, 1999. - 15 Uhen the commencement date has occurred, and if Landlord' 16 so requests, Tenant shall deliver to Landlord a statement in recordable form specifying the 17 commencement and expiration dates; said statement will be a part of this lease. 18 3.Base Rent 29 3. Tenant agrees to pay Landlord Base Rent as follows: LEASE YEAR ANNUAL BASE RENT HOHTNLY INSTALLMENT 1 12,750.00 1,062.50 2 13,387.50 1,115.63 3 14,056.87 1,171.41 4 14,759.71 1,229.98 5 15,497.69 1,291.47 6 16,272.57 1,356.05 7 17,066.19 1,423.85 6 17,940.49 1,495.04 t 20 Base Rent shall be paid mont hly in advance on the first day of each calendar month during the 21 Lease Tenn. if the commencement date is not the first of the month, the Base Rent for that month 22 shall be prorated. Tenant agrees to pay all Base Rent and other Rent to Landlord or its designated kin d t T t d ith i d Z3 agent without the necessity of Landlord making g any ou enan ma eman an w any pr or 24 counterclaim, defense, deduction or offset. The obligation to pay Base Rent and other Rent is an 25 independent, unconditional covenant. Rent shall be sent to the address Landlord designates. If 26 Tenant's check far any Rent payment is not honored any time by Tenant's bank, Landlord may demand 27 all payments by certified check thereafter; and Tenant shall be liable to Landlord for any bank 28 charges incurred by Landlord. Al l other payments to be made by Tenant pursuant to this lease are in 29 addition to Base Rent, 30 4. Percentage Rent 32 4 (A) 34 Lease Year Defined 35 (B) "Lease Year" is defined as follows: the first Lease Year shall commence on the l6 commencement date of the Lease Term and end at the close of the twelfth full calendar month l7 following the commencement date.. Each succeeding Lease Year shall be the period of each 12 full l8 calendar months following s uccessively thereafter except if the last Lease Year is a lesser period l9 for any reason. Gross Sales (C} (1) "~ '--~ "--' --- - '-~ 'Re phrase "Gross Sates" for each Lease Year means the aggregate of the prices, charged for aiT merchandise and services sold or leased in or from the leased Premises during that Lease Year, whether by Tenant or by any other person, and whether sold on credit or paid for by the customer by cash, check or otherwise, and whether the merchandise is delivered or the services rendered from the Leased Premises or elsewhere, including (without (imitation) sales at the leased Premises across the counter, telephone or mail orders, sales from mechanical devices or vending machines, and deposits not refunded to customers, and la away sales; except that the following shall not be included as Gross Sates, or if previously included in any Lease Year, may be deducted subsequently from Gross Sales reported for such Lease Year: (ij refunds or credits to customers, and (ii) retail sales taxes charge•1 specifically and separately as such to customers and paid by Tenant to the taxing authority. Under no circumstances shall there 6e any deduction from Gross Sales by reason of Tenant's beeng liable to Qay any franchise tax, capital stock tax, income tax or similar or dissimilar tax based upon Tenant s gross receipts, gross or net income, capital structure, or profits. The prices chargged shall be included in Gross Sales on delivery to or the la ing away of the merchandise for the customers or on the rendering of the service. The risk and expense of non-collection for bad debts or for granting credit shall be on Tenant. -1- Initial Ner ; Landlord' Tenant '1L- ; Irt z 3 4 5 6 7 end of 1 as Lz or " Tenant's failure to report its Gross Sales timely ana to the manner required,by this lease shall be deemed a default equivalent to a nonpayment of Rent.-rf--:armor,;: it pay a late charge of E50 per month for each statement for each month the same is ove ue in dition, Landlord may employ its own accountant or other agent to examine Tenant's recor to get t information and Tenant shall pay all fees, expenses and costs thereof as addition rent. tenant ees to keep in the Leased Premises true and complete books and records of all s Sales made 6y e t or 6y any other person (including deductions or exclusions therefrom). rd records shall be in ordance with generally accepted principles of retail store accountin and shall at the least inclu :daily records of cash and credit sales, income tax returns, s s tax reports, cancelled checks, eck books, check stubs, bank statements, computer printout ooks of account deposit slips, sale li s, sales receipts, records of purchases and love ry records and cas(i register tapes. Land or its agents may completely audit, review an xamine all of Tenant's books and records, which nt agrees for each Lease Year to keep intac r not less than 46 months after the end of each Lease ar to which they pertain. Landlord's ure to make an examination for any period shall not be an mission of the correctness of any 4tement or payments by Tenant; nor wilt it bar Landlord from co ding any time thereafter th erc'entage Rent actually due. If Gross Sales reported for any Lease ar are understated by or more of the true amount Tenant shall pay to Landlord, in addition to a additional Perc ge Rent due which Tenant shah pay on demand, the costs and expenses of Landlo 's audit or ex nation. An understatement of 5i: or more shalt be deemed conclusively a delibera incurab default by Tenant. If Tenant disputes Landlord's claim for Percentage Rent based on amt ion results, Tenant may pay under protest and within 90 days after having received landlord's ice of the Percentage Rent due, may sue for a refund of claimed overppayment. Failure to sta ent under protest" in wrtting on the check or failure to sue within 9D days, shall be a w ' r o c m. In any such case the burden of proof to show Landlord's Grass Sales figures as be' inaccurate 11 be on Tenant. ~f Landlord schedules an examination and Landlord's examiner is a e to conduct t examination due to Tenant's failure to Produce proper records or failure to ep the appointment or er hindrance attributable to Tenant, then in each such case Tenant sh pays as additional rent, expenses and fees charged by the examiner regardless of whether a examination is not then held is held at a later date. If Tenant's records are inade a or are not produced sufficiently, the events occur which are described in the previou entente disabling Landlord's examiner fro conducting, a satisfactory examination, and any this causes Landlord's examiner to be unable determine, confirm or examine for actual G s Sales Landlord shall have the rights without needs Tenant's consent, to establish an esti eel Gross ~aies for the period in question by any alter a means, including (without limits ' )external or other indices such as customer count, number of ant's employees, amount of Te s purchases, the quantity in the store of inventory, the amount o ank deposits, test obser ions, Pest-period audit or other factors (all during a period or at dates 6sequent to the per' in question, if necessary) If Landlord causes an examination of Tenant's cords or basin to 6e made, or determines Elie estimated Gross Sales in the alternate manner o y the al ate method as just described in the previous sentence, the Gross Sales so establis by dlord shall be conclusively the Gross Sales for computing Percentage Rent, and Tenant shall 5. Taxes; Additional Rent 5. (A) The ward "Taxes" shall mean and include: al] real estate taxes; special and general assessments (including for sewers, roads and other betterments), water and sewer rents and charges including connection or hookup charges (but excluding water or sewer charges hosed on consumption, measured by meter directly and individually to and payable by another Tenant) governmental license and permit fees; charges for any public or private easements enefitting the Shopping Center; and in addition all other governmental impositions and charges of every kind and nature whatsoever (extraordinary as welt as ordinary, foreseen and unforeseen)) and each and every installment thereof, any of which of the foregoing during the Lease Term are eifher a lien on the Shopping Center lands, buildings or other improvements (or any portion) or which are charged, levied or assessed on, or imposed in connection with the use occupancy or possession of the Shopping Center lands, buildings or other improvements (or any port;on); and also: all taxes license fees or other charges measured by the rents receivable by Landlord from the Shopping Center, and occupancy taxes, rent taxes or similar taxes, and all interest on Tax installment payments and all costs, expenses and fees (includingg attorney's and other expert's fees) incurred by Landlord in contesting and/or negotiating Taxes wi{h the public authorities (regardless of the outcome of any such contestation or negotiation. If any method of taxation prevailing on the date of this tease shall be altered, so as a substitute for the whale or any part of rear estate taxes there is leveled or assessed a different kind of tax, the different tax shall be deemed included in "Taxes". However, "Taxes" -2- Landlord: ~/i/ 1' ' Tenant_ 1 ~ ~ shall not include any inheritance, estate, succession, transfer gift, franchise or corporation tax 2 or any net. income tax, profit tax or capital tax' levied imposed on Landlord. A copy of an officiati 3 tax brll with respect to a governmental tax or assessment shall be conclusive evidence of the amount 4 of a Tax. If the Leased Premises rs located in Indiana Ohio, Illinois or any other jurisdiction 5 wherein taxes are accrued or become a lien but are billet or payable afterwards in arrears, then so 6 long as, they are or become payable during the tease Term, such taxes shall be included in the 7 deftnitton of "Taxes" shared in or payable by Tenant according to the provisions of this Article 8 even though the pa ment thereof relates to a fiscal tax period in whole or in part occurring prior 9 to the commencement of the Lease Term. 10 Tax Rent 11 (B As additional rent (herein called Tax Rent"), Tenant agrees to pa to Landlord, its 12 share o the Taxes by paying on the first day of each month in advance, 1/12th of the product 13 obtained by multiplying the aggregate amount of all Taxes payable by Landlord for the then current 14 calendar year by a fraction, oT which the numerator is the Floor Area of the Leased Premises and the 15 denominator is the total square feet ground floor area which is leasable for space (on the first day 16 of the month in question) tnstde all the buildings of the Shopping Center. If at any time prior to 17 the date Taxes are pa able by Landlord it is determined byy Landlord that the esttmated Tax Rent 18 payments made by Tenant shall be insufficient for Landlord to have in hand on the said Tax pa ment 19 date the full amount of Tax Rent actually due from Tenant, then Tenant within 10 days after notice, 20 shall deposit with Landlord the full amount necessary in order to ena6Se Landlord to have to hand 6y 21 said lax payment date the total Tax Rent. If after the end of a calendar year (or other accounting 22 period used by Landlord) the total of the monthly payments (and, if applicable, the aforesaid 23 ..deficiency Dayments) made by Tenant for the yyear has exceeded or is less than the annual Tax Rent Z4 " actually due; then'promPtly an adju3tment shSli 'be"afade between tarrdiord'and S.enant with appropriate 25 payments to or repayment by Landlord, as the case may be. .If the amount of any Taxes payable during 26 the current year shall not yet have been billed by the taxing authority., the monthly Tax Rent then 27 payable shall be based on the amount of the corresponding' Taxes for the immediately preceding Tax 28 ear plus 6~ of said amount subject to immediate ad,l'ustment (and payment of the ad,7usted amount by 29 Tenant) when such Taxes shall be billed or determined. Tenant's esttmated monthly Tax Rent for the 30 first calendar year or balance of the first calendar year if the Lease Term starts on other than 31 January 1st shall not be less than GG gfi'5 er month. For an portion of a calendar month at 32 the beginning of the Lease Term, TedanC s T5x Rent shall be proratedyfor that month. 34 Other Taxes (C) In addition to sharing in Taxes by paying Tax Rent, Tenant agrees to pay in the entirety' 35 all Taxes attributable to its signs and to its other personal propert and to its leasehold 36 interest; all Taxes allocable or attributable to any improvements made bZy Tenant to the Leased 37 Premises; ,and also any occupancy tax or other tax on its right to occupy the premises; and also all 38 Taxes on its kent (including sales taxes on rents if the Leased Premises is to Florida or any other 39 jurisdiction imposing the same or similar tax do rents) and other' payments imposed on tenants 40 generally. Upon Landlord's demand, Tenant shall furnish proof of payment of all such Taxes. 41 Additional Rent 42 (D) In addition to the Base Rent, all other payments required to be made by Tenant (including 43 but no{t limited to .oanwosigs.tamt Tax Rent, Common Area Rent) shall be deemed to be additional 44 rent and included in the term "Rent' wherever used even though not ex$ressly so designoted. Unless 45 another time is expressly provided for the ayment of additional rent, it shall be due. and payable 46 on demand or together with the next instalPlment of Base Rent, whichever first occurs. Landlord 47 shall have. the same rights and remedies for non-payment of any additional rent or for not posting 48 with Landlord any Security Deposit as for anon-payment of the Base Rent. 49 Late Rent 50 (E) Any Rent or Security Deposit not paid when due shall bear interest on the payable amount 51 from thhe date when due until paid at the annual maximum rate of interest permitted by law; and in 52 addition, Tenant agrees to pay Landlord a j50.00 late charge for each overdue payment. 6. Securit Deposit 6.. (A) Landlord acknowledges receipt (yif by check, subject to collection from Tenant as security of the sum of$2,545; 00 Dollars as Security Deposit for the paymen~ of Rent and the performance and observance of this lease on the yart of Tenant. If Tenant defaults under this lease, or defaults under any other lease or agreement between Tenant and either Landlord or an affiliate of Landlord, Landlord may, without Grejudice to any other available remedy, apply the Securit peposit or any portion thereof towards the curing of such default and towards compensating Landlori~ for any loss or damage arising from such default. Upon the yielding up of the Leased Premises at the expiration,of this tease, if Tenant shall not then be to default or otherwise liable to Landlord the unapplted balance of the Security, Deposit shall be returned to Tenant. If at any time Landlord applies any part or all of the Security Deposit, Tenant, an demand, shall pay to Landlord twice the amount so applied, which shall become part of the Security Deposit, so that Landlord shall have on hand the full ongtnal Security Deposit plus such additional amounts at all times. If Landlord's interest in this Tease shall be transferred and the then Landlord turns over to its transferee said Security Deposit (or the unappplied balance thereof), then thereafter the transferor shall be released from any and all liability with respect to said Security Deposit or its return to Tenant, it being understood that Tenant shall thereafter look only to such transferee with respect thereto. Tenant shall not mortgage, assign or encumber its interest in the Security Deposit, and any attempt to do so shall be void. Upon any transfer byy Tenant of its interest in this lease, said Security Deposit and Tenant's interest therein shall be transferred to the assignee. In case of Tenant's bankruptcy, reorganization or other similar proceeding, the Security Deposit shall be deemed applied first to payment of unpaid Rent for all periods prior to institution of the proceedings. (B) Tenant agrees that notwithstanding any alleged defense, counterclaim or offset against ariy Rent, Tenant shall continue to pay Landlord faithfully when due according to this lease all Rent and additional rent accruing during the continuance of the dispute or legal action. Failure by Tenant to make such pa meats of Rent shall preclude Tenant from interposing any such, defense, counter- claim or offset in the legal action and shall be deemed automatically to constitute a waiver of Tenant's right to interpose such defense, counterclaim or offset in any legal action. Further, Tenant hereby consents to the entryy of an order in any court action by Landlord requiring Tenant to make Rent payments during the pendency of the lawsuit despite any defense, offset or counterclaim Tenant may assert. Upon Tenant's failure to continue to ppay the amount of the accruing Rent and other charges, Landlord in any such instance, in addition to all other remedies Landlord may have may send.Tenant a notice terminating this lease and Tenant's leasehold estate forthwith upon five (55 days' error notice, and if Tenant does not make all of such pa ments within said five (5) day notrce period then automatically and without any further notice to Tenant, this lease and the Lease Term shall terminate and expire with the same force and effect as if the end of said five (5) day period -3- Initial Nere -; ;Landlord' :r` Tenant ~=...i I was the original stated date set forth in this lease as the expiration of the Lease Term but Tenant 2 shall remain 1ia61e to Landlord as provided in Article 15 hereof, and Tenant shall forthwith vacate 3 and surrender the Leased Premises i n good order and condition, broom clean and in accordance with the 4 provisions of this lease, and in default of doing so; Landlord shall have the right t0 Summary 5 proceeding, eviction and all the other remedies against Tenant as a wrongful holdover Tenant. 7. Construction; Condition of premises. York 7. If Tenant enters the Leased Premises before the lease Perm has ca that Rent may not 6e yet payable during that preliminary period Tenon used by it and agrees to defenb, indemnify and hold Landlord harmic arises out of Tenant's possession, use or occupancyy during that perm Landlord with the insurante referred to in Article ii(B hereof, and tl and during that period all other provisions of this ease shall app stated herein) the obligation to pay ,Rent, Tenant agrees to fix {including installation of an attractive exterior lighted sign abo~ Landlord's prior written ayproval thereof) as is appropriate in order 1 and Tenant agrees to complete its work, and fully staff and stock its promptly. Prior to operating its business, Tenant agrees, at its permanent certificate of occupancy (or .local equivalent) from the be local government agency having jurisdiction) for the Leased Premises an work performed by or on behalf of Tenant and forward copies thereof tc with the preceding part of this sentence shall constitute a material del that throughout the entire Lease Term and during all times Tenant is oc it shall, at its sole exppense, in doing arty work or making any install or conducting `business at' the Lease premises tomply wiifi ~l-l--yrex2rrt a building codes and/or fire codes app]icable in whole or in part to the 1 occupancy or business operations, including but not limited to such maintenance, upgrading, repair or replacement of sprinkler systems; a indemnify and Bold Landlord harmless from all losses, damagges, cla expenses {includin legal fees) arising out of any failure to do so. E otherwise in this ease, Tenant acknowledges having conducted all inspec agrees, to, accept the Leased Premises and all of the equipment, appart rnnditioning, electric, water waste disposal and other syystems relating and the other Common Area oi' the Sho pping Center "AS IS" in its exist ppossession of the Leased Premises is delivered to Tenant, and Landlord i to either the Leases Premises or the Shopping Center to make insta]lations, do any work, make any alterations, repairs or replaces Premises, obtain any permits, licenses or ggovernmental approvals, or sp Tenant in possession or to permit Tenant to open for business, unless lease to do any work, in which case such work shall be limited to the attached work Exhibit signed by Landlord, which work §hall be deemes architect shall so certify. All work other than that to be performed in upon complete execution of this lease by additions and improvements made by Te air-conditioning units, equipment and apps ceiling tiles and grids, lighting fixtur ]fights toilet fixtures, partitions, door, removable trade fixtures installed 6y Tena +vhen made or installed be deemed to have orovided. however. if Landlord so directs occasion and in expense. may Fenced, then notwithstanding shall pay for. all utilities from all h ability which ;.and Tenant shall provide indemnity in Article IISA) exce t (unless otherwise re andp do all other work its entrance, subject to ready the Leased Premises; tore and open for business ole expense, to obtain a Iding department (or other final lien waivers for ail .andlord; failure to comply rlt. Tenant further agrees spying the Leased premises, ions ar using or occuovino s ens any Candles remises ate to ed Premises and other rr and wall coverings, except si~Irs, counters pense originally are ar ^eehold and become Land sties of. this lease or iprovements fixtures 's by Tenant and shalt r the Leased Premises to repairs and restorat 8. Common Area 8. (A) "Common Area" is hereby defined as all lands, areas, equipment of the SShopping Center (or of any other land or property, if made availa~Ul safetyi benefit or convenience of tenants and their employees, subtenants, including as illustrations (and not in limitation: all yarking areas, drive sidewalks and curbs; entrances and exits from he ad~acent•streets; traf areas, trees, shrubs and other Landscaping; meter rooms outside individual rear of, around or elsewhere located in the Shopping Center; lighting fa parking area or other areas outside individual stores. sprinkler system servi and sprinkler risers serving any buildings. cesspools, ,sewers, lift station conduits and the connections thereto located outside individual stores; the e and downspouts and the exterior of outside wall (but excluding storefronts) o implying that Tenant has a right to,use the roof or the outside walls); dire and pylons and sign panels to identify the Shopping Center; and other areas, facilities of the Shopping Center that are made available for the common us its use or tallation, to defend costs anb illy stated @ssary and sting, air arking lot ition when th respect changes, ".he Leased rer to put girth on has ten Lantllortl's dlord, if an e, it shall ybe nt immediately decorations Beating anb stores such as rlarm systems, other easily shall at once counters, r any damage I condition; at Tenant's facilities and services e by Landlord) for the customers and invitees, ways, truck serviceways, fit islands, landsca ed stores; fencin at the cilities to illuminate ng the landscaped areas s, drainage gapes, and ntire roof, all gutters fall buildingg (without ctional or safety signs equipmentr services or e or benefit of tenants and others. (B) Subject to the following subparagraph "~C)" and so longg as Tenant is not in default, Tenant and its employees, agents, and customers sha T have the righf, in common with others to the use or benefit of the Common Area to the extent and in the manner reasonably designated by landlord and permitted 6y this Tease. (C !andlord reserves the right at any time and from time to the ~o.amon Area. Except as set forth in Article 9(C) (wl things, to keep all sidewalks, service areas and loadin docks ad; Leased Premises swept and clean and to keep same free o~ ice, snot be cared for by Landlord. All Common Area shall be under the e Landlord (including the hours that parking area lights are kept thereafter modify and enforce rules and regulations with r non-discriminatory basis. Tenant agrees it and its officers and only in areas Landlord designates for employee yarking, and violation reoccurs by Tenant, its officers or emplloyees parkin employyee parking areas, Landlord shall have the right to tow of~ tenant's expense or to levy an assessment against Tenant of f40. It no time shall Tenant permit trucks or delivery vehicles used -4- to time to change or reduce or mein Tenant agrees, among o latent to the front and rear of v and trash), all Common Area s'. On). LantllOrtl may establish, antl espect to the Common Area on a em to ees will park their vehicles ifp after one violation notice a their vehicles in other than the any vehicle parked in violation at 00 per day for each such vehicle. 6y it to be parked in the Common Initial He ~' Landlord' / ; Tenant L~,~/'~ „a,~.~ . . 1 Area except where permitted by Landlord. Landlord shall have the right to ifipose and enforce 2"' parking charges by meter or otherwise. Landlord may ,close any part of the Common Area for such time 3 as is necessary In its opinion to prevent a dedication thereof or accrual of rights in any person, 4 or in order to discourage non-customer parking. Under no circumstances shall landlord be obligated 5 (although it may da so at its option) to keep the Common Area illuminated to any extent after 9:30 6 Ii.H. or on any Sunday or legal holiday. (0) In the manner hereina Common Area Costs. On the first additional rent (herein called "1 Landlord's estimated "Yearly C estimates. Tenant's annual propp0 Area Costs by a fraction, of whi denominator is the total quare f of the month in uestion insidc Rent for the first Galen ar year start on January Ist shall not be month at the beginning of the Lea: calendar)yeareaoryother~l2Amonthi at premiums, o the ranng organization n ( andlord shall have absolute repairs, replacements, line eliminating puddling or floor the like; lighting of areas fixtures, poles and repiacen drainage and sanitar9 contrc station and attendant facili system serving landscaped are of orooerty owned or rental r Coenon Area Rer Area 0 to share s to pay annuallyy its share Tenant agrees to pay to Lt enant's annual orooortionat gall tie determined by multiply is the Floor Area of the Lea area which is leasable for spt gs in the Shopping Center. ie first calendar Year if the not in ue f' the premiums actually paid of coverage and the limit of or ma payable by landlord for any Stropping Center pylon Common Area; real estate taxes assessed against lan such non-Shopping Center lands constitute "Common services, direct parking or to police the Common A added thereto equal to fifteen percent of all of t Landlord's administrative and overhead expenses. L snow removal repairs, etc. to be provided by rode part of Year(y Common Area Costs. (F) Within a reasonable time after the end Landlord shall furnish an annual statement in reas~ Costs. If the said statement shows that the aggreg by Tenant during such year (based on Landlord's advai Rent payable, Tenant shall pay the balance due to statement; and if the statement shows that the agc Common Area Rent payable, Landlord with said stall excess to Tenant or credit Tenant for the amount aggz annual statement of Yearly Common Area Costs by La chief accounting officer, and said statement shall b~ monthly Common Area Rent shall never be less than $ l tments and- maintenance-of tl iilding, including iri leased ichinery and equipment and pa, .taxes (or other taxes, how signs; equipment or other ds other than Shopping Center Area"); compensa ion to ppen rea; pus annually as additi he >Pearl'y Common Area Costs andlord ,may cause any service pendent contractors, and the of Tenant's next accruini all bear a ve on Tenant per month. s s :retion as trotection costs or ~ning and ]toggs and liabilit ce at tie r was the tpublished Landlord; ppolicy); xalks and :event of id sewagge mt,, liit spr?nkler facilities; upon the Sands (but only if sonnet to 'implement onal rent an amount as a fixed fee for s such as 'sweevingg fees paid shall be used by landlord, Yearly Common Area ges previously paid tenants Common Area ter receipt of said tenant exceeded the either refund the an Area Rent. Each icate of Landlord's any event, Tenant's 60 9. Use of Premises 61 9. (A) Tenant agrees that the Leased Premises will be used and occupied only for the following 6Z retail purpose and no other: THE OPERATION OF A RESTAURANT SERVING CHINESE FOOD. TENANT IS SPECIFICALLY PROHIBITED FROM SELLING ALCOHOLIC BEVERAGES AT THE LEASED PREMISES. 63 No sale or dispensing of lottery or other gaming tickets shall be permitted without Landlord's prior 65 consent. 66 m, neither Tenant nor any stoc holder owning more than ten percent of Tenant if Ted~ ' b7 corpora any person, corporation, partnership, trust, other firm or entity ~trols or 68 is controlled y w~~it is under common control with Tenant, nor any sub,' o Tenant nor any 69 business organization ~ with Tenant (including but not o any so-called "parent 70 company" of Tenant nor an gu of this lease will y or indirectly sell from any 71 other premises wit~in a ra~ius of thre of ed Premises any merchandise or services 72 which Tenant is permitted to sell in the L i In addition to, and not in exc]usion of, 73 any remedy available to landlord l~ch of the ~ in the preceding sentence and at 74 Landlord's option, Tenant' ase Rent shall be increase and one-half of ail of the 75 'Gross Sales' (as to this lease) realized in ar from such othe s shall be added to 76 the. Gross the Leased Premises for the purppoose of computing the ercen under this 77 1 the same effect as thoagh such other Gross Sales had actually been reap the 78 -5- Initial Here ; Landlord' J' Tenant=iJ~ ~, ~~,~~ I ~ ~ Ousiness Operations 2 (C) Tenant agrees that: the Leased Premises will be kept, open and operated continuously for 3 business during all of the regular business hdurs of the Shoppin Center each day but in any•case 4 from ch day for at least six days a week and that Tenant will operate its business 5 therein wit i igence and in a manner calculated to produce maximum Gross Sales, fully staffed and 6 stocked; no auction fire, bankruptcy, going out of business or similar sale will be conducted or 7 advertised; no merchandise will be kept, displayed or sold or business solicited in the Shopping 8 Center outside of the Leased Premises (whether by vending machines or otherwise),; no nuisance will 9 be permitted, nothing shall be done which is unlawful, improper, noisy or offensive, or contrary to ID any law, ordinance, regulation or requirement of any public authority or insurance inspection or 71 rating bureau or similar organization, or which may be injurious to or adversely affect the quality 12 of the leased Premises or the Shopping Center, no Part of the Leased Premises (especially the I3 electric and plumbing systems, the floor and walls) wi 1 be overloaded, damaged or defaced, no holes 14 will be drilled in the stone or brickwork or in concrete; no emission of any objectionable odor or 15 sounds will be permitted. Tenant will procure all .licenses and permits required for the use or 16 occupancy of, Leased Premises and the business being conducted therein; the storefront show windows 17 and siggns will be repaired, kept clean, in good condition and lighted; all merchandise and other IB property will be 'delivered to or removed from the Leased Premises only by the rear entrance; a71 19 garbage waste and refuse will he stored inside the Leased Premises in neat containers and 20 regularly removed at Tenant's expense and at Landlord's option only by the contractor designated by 21 Landlord provided his price is competitivei Tenant will cooperate with Landlord and with other 22 .tenants of the Shopping Center in promotions and advertising, and will become and remain a 23 dues-pa ing member of any Merchants' Association {or similar organization) of which fifty percent or 24 more of the tenants of the Shopping Center are members; or alternatively will become a participant 25 of and shall pay 'its prorata share (based on Tenant's relative store size) of any expenses incurred 26 by a Narketinq or Promotion Fund program now or hereafter established by Landlord. If at any time Z7 the Leased Premises are closed oilier than a temporary closing for repairs, alterations or 28 renovations) for a period ,longer ~'han 90 consecutive -days; 'L•and}ord may, -at .i.ts-'op'tion and in 29 addition to all other remedies available to Landlord hereunder, by Taw or in equifyy declare Tenant 30 in default of this lease, cancel and terminate this lease, ana avail itself of~ all rights and 31 remedies set forth in Article 15 hereof or as otherwise made available to Landlord by law. Tenant 32 further agrees that it shall throughout the Lease Term comply with and observe the provisions of the 33 Federal Comprehensive Environmental Response Compensation and Liability Act of 1980 (as the same 34 may be amended from time to time) and of alt' environmental statutes, regulations or ordinances now 35 or hereinafter enacted by the Federal Government and/or the State or Municipality wherein the Leased 36 Premises are situated; and that Tenant shall not permit or use the leased Premises for the emission, 37 disposal, dumpin or storage of hazardous wastes through or into the septic tanks, sewers, or other 38 waste disposal facilities of the Shopping Center or anywhere in the Shopping Center or permit same 39 to be brought into the Leased Premises at any time, and the provisions of this sentence shall 40 survive the expiration of the Lease Term for ten years. Tenant agrees that the leased Premises will 41 be kept free of rodents, vermin, insects and other pests, and Tenant will provide regular 4Z exterminator services ai its own expense, and at Landlord's option only by the exterminator 43 designated by Landlord provided his Price is competitive. Tenant agrees that nothing will be done 44 or kept, or suffered to be done or kept or omitted which may either prevent the obtaining of any 45 insurance on the Leased Premises or on any building or other parts of the Shopping Center or on any 46 ersonal property therein (including, without limitation, fire, extended coverage and public 47 liability insurance), or which way make void or voidable any such insurance, or which may create any 48 extra premiums for, or increase the rate of, any insurance carried by Landlord or other tenants, and 49 if anythingg shall be so done, kept or omitted to be done which creates any extra premiums for, or 50 increases fhe rate of, any such insurance (including but riot limited to Tenant's failure to install 51 sprinklers or fire extinguishers or failure to comply with any law, regulation, building code or 52 fire code relating to sprinklers or fire extinguishers or failure to comply with, any law, 53 regulation, building code or fire code relating to spripklers for or otherwise relating to the 54 Leased Premises, as more particularly stated in Article 7), this shall be a default by Tenant 55 allowing the Landlord all available remedies, but in any case Tenant agrees to correct the situation 56 and agrees to pay as additional rent to Landlord the increased premiums and costs and expenses to 57 obtain other insurance or to retain the existing insurance. 58 Tenant further agrees: to stock or store in the Leased Premises only merchandise Tenant 59 intends to offer for sale at retail, to use for office or other non-Selling purposes only such 60 incidental space reasonably required for Tenant's retail business conducted at the Ceased Premises; 61 to place business machines and mechanical equipment, which cause vibration or noise to be 62 transmitted to the building structure or to other space to a degree objectionable to other tenants, 63 in settings of vibration or noise eliminators sufficient to eliminate such vibration or noise; 64 Tenant will not solicit business or distribute advertising matter in the Common Areas; and Tenant 65 will not conduct nor permit preparation of food or any ,cooking, baking, or frying in the Leased 66 Premises. Tenant will comply with alt requirements of insurance companies, including maintaining 67 and servicing fire extinguishers. Tenant shall at all times keep the Leased Premises and the 68 sidewalks and curbs and ramps (if any) adjacent and exterior to the Leased Premises, and also all 69 delivery areas used exclusively by Tenant and loading docks used exclusively by Tenant, in a neat, 70 clean and orderly condition and free from snow, ice; rubbish dirt or other debris, and free from 71 obstructions or any potentially dangerous condition. Tenant shall, at its expense, keep all loading 72 docks ramps and loading areas used exclusively by it in good, sate and orderly repair and 73 condition. Upon Tenant's failure to keepp the sidewalks; curbs, ramps, and loading areas in the 74 condition required, Landlord' in addition to any other rights, may (but shall not be obligated to) 75 erform same as Tenant's a ent and the cost thereof shall be paid by Tenant as additional rent. 76 Tenant will not make or suf~er any waste of the Leased Premises or permit an thing to be done in or 77 upon the Leased Premises creating a nuisance. Landlord shall not be liable for the act of any other 78 tenant or person who may cause ,damage to or who may interfere with Tenant's use or occupancy of the 79 Leased Premises or Tenant's business. 80 10. Utilities, Repairs, Signs, Alterations, Liens B1 IO.~(A) Tenant agrees to provide and pay ,for ,its own heat, air conditioning, water, gas,, 82 eiectrtctty, sewer, sprinklers and other utritttes, including arty application deposits, and the cost 83 of and installation charges for all utility meters. if the authority having ,jurisdiction chargges $4 for the use of the sanitary sewer system, Tenant shall pay the share thereof properly apportionable 85 to the Ceased Premises reasonably determined by Landlord. Tenant agrees it will at all times keepp B6 sufficient heat at a level to prevent the pipes from freezingg. If Tenant receives utilities through 87 a meter which supplies utilities to other tenants, Tenant w911 pay to Landlord as additional rent, 88 Tenant's proportionate share (based on relative square feet size of premisesf of the total meter 89 charges. if Tenant receives water from Landlord's well or other sources made available by Landlord 90 (instead of from an independent water company not relatad to landlord) all costs and expenses for 91 supply, maintenance, repair or replacement and installation of pumps, tanks electric cost, 92 machinery, pipes, apparatus and facilities shall be included in Yearly Common Area hosts. -6- Initial Ue ~' Landlord' Tenant ; U~ ; ~L ~~ ~,~,. (8) On written notice from Tenant wl on less than 30 days notice) Landlord wi Article 25 below) make (or commence invest foundation, the roof the exterior of structural columns and beams in the Leased same become necessar by reason of improvements made by 'tenant or anyone clot of use of Tenant or anyone claiming, under on the part of Tenant of any provisions in make such repairs or replacements, In det expression "roof" does not include any roof or apparatus on the roof serving the Least store trout, any glass, windows, wtnac hardware any trim or closure devices or all of which shall be Tenant's duty to r liability shall be only to make the repot be liable for damage to or loss of per inventory, furnishings, any interior responsibility to maintain or repair, or any consequential damages. of the interior side ant agrees to give (but not, except in emergency :her permitting and subt'ect to the provisions o~ and plans to make) all necessary repairs to the rfineter demising, walls, and the weight-bearing !s, except that if repairs or replacements to the sirs installations, alterations, additions or ter `tenant or (ii) the fault or misuse or manner or ((iii) default rn the performance or observance ise {o be performed or observed then Tenant shall the object of Landlord's repair obligations, the :ing or air conditioning units or other structures ses, and "exterior of walls" does not include the or frames, or an doors. door frames or door al property , ements of loss of bus Tenant's Repairs (C) Excepting only the, repairs Landlord i; obligat "(B)" Tenant agrees to maintain the Leased Premises and n kind inside or with respect to the Leased Premises in of ' (including -the store -fronts •signs, the ~eeilings,,'the'~iii perimeter, walls, the floor and the floor coverings, tl conditioning, sewerage and sprinkler systems, and all fixtures) and to do all required by any laws ordinance: authorities, subject to Article~l3 and 14 hereof. In addi replacements and alterations necessary to maintain in goon panel boxes, conduits, fixtures, meters and equipme t rela? conditioning, water, gas, electricity and sewerage to th exclusively, whether located inside or outside the Leased if any air conditioning or heating equipment ((or other ut nature) even if located on the roof a damaged or destroy glass or dami and otherwise no same s ed tandlo~dra ~oiiiigation ~or ad, and Landlord shall not tiles carpeting stock, ses which are `tenant's ~s, loss of profits or for to make in the preceding subparagraph ! all repairs and alteratgions of every r to keep the same in good condition ~ior -walls, and 'the interior side of plumbing, electric, heating and air witches and appliances and lighting regulations or reqquirements of public .n, Tenant agrees to make all reppairs ondition and operation all electrical 1 to utilities (including heating, air extent they serve the Leased Premises raises; and Tenant further agrees that ty equipment of similar or dissimilar by fire, lightning or other casualty, tt at Tenant's sore cost and expense, Tenant agrees to replace damaged and quality. Tenant agrees to paint es attractive in appearance. 41 Signs; Paintingp; Displays 42 (D) No sign, other advertising or any other thing may be placed by Tenant or anyone claiming 43 under 7tenant an the exterior of the Leased premises or on interior part of either windows ar doors 44 without Landlord's prior written approval * Flashing, painted, neon or moving signs will not be 45 ermitted in aqy case. Tenant will not paint, decorate or mark any part of the exterior without 46 Landlord's prior written consent * Tenant agrees to install an exterior lighted sign or signs in 47 compliance with Landlord's specifications and to keep its exterior ligghted sign or signs (whit must 48 first be approved by landlord in writing lit to at least 10:D0 p.m. ddring dusk or night or to such 49 later hour as requested by Landlord on a~l days of the year. * which shall not be unreasonably withheld. 50 Alterations 51 (E} Tenant agrees that no alterations installations, additions or improvements will be made 52 to or on the Leased Premises without Landlord's priot written approval; and in any case all 53 installations, alterations, additions and improvements, whether by Landlord or Tenant or any other 54 erson (except only signs and movable trade fixtures installed prior to or during the ,lease Term at 55 Tenant's cost) shall become, when made, a part of Landlord's real estate, and on termination of the 56 Lease Term shall be surrendered with the Leased Premises without disturbance, molestation or injury; 57 rovided, however, that although Tenant may remove its signs and movable trade fixtures during the. 58 Lease Term or at the termination thereof, if Tenant shall be in default under this lease, such of 59 Tenant's signs and movable trade fixtures as Landlord shall designate shall not be removed and 60 shall become the property of Landlord until the default is fully cured and Tenant has paid all 61 damages, if any, owed to Landlord arising from the default. Unless otherwise directed by Landlord, 62 Tenant shall not have the right to remove sign boxes. Tenant agrees that all e in a good and workman y with all laws, ordinal s insurance policy requ' one in such manner th+ endangered or impaired; the filling of holes,, ed Qart to good eonditii !s in connection with ai ased Premises and the 51 indemnify and save Lan ~d~ ion ~ the~~pu6isic ~ record Iting from any act of lei request of or anyone ci it's expense, and collect Perwits;, Liens repairs, installations, alterations, in ike manner, only after Tenant has proton :es and regulations of public authorities 7uding but not lit Tenant aggrees to ~ ~rk done by or for ng Center will be I harmless `tom a or resulting from se, trom the public r in any way agains t or from labor or m. ing under Tenant, fa e same from Tenant as and claiming outlet Tenant, so of liens. Tenant agrees aims for injury, loss or such work, and to remove, s after notice all liens in the Shopping tenter to have been supplied at may remove such lien at B1 il. Indemnityy 82 11. (A) Tenant agrees to protect, defend, save harmless and indemnify Landlord and any fee owner 83 of the Shopping Center from and against all losses, claims, liabilities, injuries, expenses 84 (including legal fees), lawsuits and damages of whatever nature either (i) caused by or resultin~ 85 from, or claimed to have been caused by or to have resulted from any act, omission or negligence o 86 Tenant or anyone claiming under Tenant or its subtenants, concessionaires, employees,, contractors 87 and invitees no matter where occurring, or (ii) occurring in the Leased premises or arising through -7- Initial Her Landlord' , Tenan_ t ~ =,~ ~~ 1 .the use or occupancy of the Leased Premises no matter how caused. ]f in con,l unction witF~ its use of 2 the Leased Premises, Tenant makes shopping carts available for use by Tenant's customers, the 3 indemnity provisions of the preceding sen ehce sha'Il apply to any losses, claims, liabilities, 4 injuries, expenses ((including iegaT fees), lawsuits and damages of whatever nature and wherever 5 occurring, relating fo the use or misuse of such shopping carts; and Tenant covenants and agrees, at 6 its expense, to collect and remove all shoppping carts from the Common Area, as often as necessary, 7 so that the Common Area shall remain tree ut same; and all shopping carts shall be stored inside the e Leased Premises. Landlord shall not be liable or held accountable under anp circumstances for any 9 injury loss or damage to or interference with any merchandise, equipment, fixtures, furniture 1D furnisRings or other personal propertyy or the business operations of Tenant or anyone in the Leasetf I1 Premises that may be occasioned byy (i) the act or omission of parsons occuppying adjoining premises 12 or (ii) any defect, latent or otherwise, in any building or the equipment,•machinery, utilities, 13 appliances or apparatus therein, or (tit) any: bursting, breakage or leakage of the roof, walls, I4 floor, pipes or equipment or (iv} any running, backingg up seepage 'or overflow of water or 15 sewerage, or (v) caused by Mood, rain, snowfall or other elements or Acts of God. Tenant's Insurance B) Tenant agrees to maintain with financially responsible insurance companies satisfactor; to Lan lord and licensed to do business 1n the state where the Leased Promises are located: (i] eneral liability insurance policy with respect to the Leased Premises and its appurtenance: including signs) naming Landlord as an additional insured with a limit of not less than S1 mill' r combined sin le limit• (ii) an umbrella liability insurance policy with a limit not less than million, nam9n landlord as an additional insured; (iii a boiler and machiner insurance polyy written on a comprehensive basis to cover any insurable objects, with a limit o~ not less than ~1 million• (iv) an all-risk property insurance policy. insurinA all ~of the Tenant's merchandise; teaseho)d improvements, furniture and fixtures all at their replacement cost. Tenant shall deliver said insurance ~solicies" or certificates thereof issued .by. the -insura'rtee •eompany .to Landlord with premiums prepaid at least 30 days prior to the commencement date of the Lease Term and of each expiring policy thereafter. If Tenant does not deliver the policies or certif cates,as aforesaid, the same shall without.necessity of further notice, constitute a default hereun~er, and in addition to such other rights and remedies as are available to Landlord as a consequence thereof Landlord shall have the right (but not the obligation) to purchase said insurance on behalf of `tenant and charge the premium to Tenant, or in lieu thereof charge Tenant 30 cents per square foot of the Leased Premises and Tenant shall remit to Landlord within five (5) days of receiving the bill the amount owed for the premium or for the 30 cents per square foot, as additional rent. All policies of insurance required of Tenant shall have terms of not Less than one year. 36 12. Access to Premises 37 12. Landlord, without diminishing Tenant's obligations, shall have the right to enter the Leased 36 Premises at all reasona ble times and in case of emergency, at any time, for inspection, to show to 39 40 prospective purchasers, d mortga ees or tenants, or to make any repairs alterations, additions or ' i 1 i d d h f 9 improvements, inclu ing 1 or remove to inst a re er parts o s an other con u ts serving ot pipes, w 41 the Shopping Center. Commencing 6 months prior to expiration of the Lease Term, Landlord may 42 maintain 'For Rent" sign s on the front or any other part of the exterior of the Leased Premises. 43 13. Fire and Other Casualty 44 13. (A) Tenant shall give prompt notice to Landlord in case of fire or other damage to the Leased 45 Premises. 4fi (B) If (i the Shopping Center buildings shall be damaged to the extent of more than 25~ of 47 the cost of rep acement thereof or (ii) Landlord's insurance recovered and retained' by Landlord 48 shall be insufficient to pay fully for,the cost of replacement of the damaged building, or (iii) the 49 Leased Premises or Shopping Center buildings shall be damaged from a risk which is not covered by 50 Landlord's insurance, or (iv the Leased premises shall be damaged to the extent of more than 50~ of 51 the replacement cost, or (v~ the Leased Premises are dams ed and shall not have been operating for 52 business as required by Article 9(C) above at the time ot9 the fire or other casualty, or (vi) the 53 Leased Premises are damaged and less than 1 year of the Lease Term remains unexpired at the time of 54 the fire or other casualty; then in any of such events, Landlord may terminate this lease by notice 55 even within 90 days after such event, and on the date specified in such notice this lease shall 56 terminate. Notwithstandingg that the casualty, repairing or rebuilding renders the Leased Premises 57 wholly or partly untenanta3le, there shall not be any abatement or suspension of the Base Rent or 58 any Rent, (unless Tenant or Landlord have procured a rent insurance polity and Landlord receives 59 the pproceeds payable thereunder; and then only to the extent of such proceeds actually received by 60 Landlord) but unless this lease is terminated by landlord as aforesaid, this ]ease shall remain in 61 full effect notwithstanding the damage or any law to the contrary., 62 (C). If this lease is not terminated, Tenant shall, immediately upon receipt of notice from 63 Landlord to do so, remove such fixtures and other property and debris from the Leased Premises as 64 shall be reqaired by Landlord in order to enable Landlord to proceed with repair and restoration 65 work. Landlord shall proceed with repair and restoration of L'andlord's property; and upon 66 completion thereof Tenant shall proceed with repair and restoration of Tenant's property. All 67 repairs and restoration of the Leased Premises not Landlord's obligation shall be performed promptly 68 by Tenant, and Tenant will promptly reopen for business. In any case when Landlord has the 69 obligation to rebuild, such obligation shall be only to expend the amount of insurance proceeds 70 recovered, and fn any event only to rebuild the Leased Premises io the extent of its condition ' 71 existing at the time when the Leased Premises were originally delivered to Tenant. If Tenant carries 72 insurance Covering the damage or any portion of the damage, Tenant shall use the proceeds for 73 restoration of the Leased Premises. 74 (D) The cost of replacement" as used in "(B)" above shall be determined by a reputable 75 contractor selected by Landlord. 76 77 z8 /9 8Z 84 86 88 89 14. Eminent Domain 14 4A) If the whole of the Leased Premises shall be taken under the power of eminent domain, the Lease Term shall expire when Landlord shall be divested of its title, and Base Rent shall be apportioned as of the date of expiration. (B If only part of the Leased Premises is taken under the ppower of eminent domain, and the ground f~oor area of the leased Premises is reduced by more than ZO'k and the Dart remaining shall not be reasonably adequate for the r to the taking, Landlord or Tenant tea after it has received notice of sucl shall be required for public use• an is not terminated, Landlord shall, v use, repair and rebuild what remains according to the nature and extent s remains of the Leased Premises shall nn a reasor F the Leaser the injury put into s -8- iness conducted in t se by irin the oth as of ~.he Agate posse a as s Initial He La dlord' ; Tenant~,_ ` ; I~tc-1.i or t e ~. (~ .senw.ay. . 51 53 56 1 - Rent accordir 2 f for t there o ue f 4 o the val 5 reserves to i 6 taking under 7 authority for 8 may be requir 9 damage procee 10 movable trade I1 Landlord's aw 12 13 15. (Aj Any r 14 pay Rent, Secm 15 agreement or co 16 mentioned in cl 17 Deposit or mone; 18 Tenant commits 19 affiliate of La 20 interest or any 21 makes an assign 22 bankrupt or in. 23 arrangement wit 24 coanpenced -by qr 25 property, or (8, 26 business within 27 Tenant that the 28 devolved on, or 29 specifically pen 11 if 31 or ( 1 Tenon ~ r ~ 32 repeated fo r t w 33 then notwithstan 34 deemed to be del 35 in ca'. 36 above, Landlord t 37 inmedtately and 36 legal representai 39 force (including the nature and extent of the part so taken, shall be reduced by a just proportion glance of the Lease Term. shall not have, and hereby waives, any-claim for any part of the award based on unexplied portion of the Lease Term or loss of its leasehold estate. Landlord f, and Tenant assigns to Landlord, all rights to damagges accruing on account of any ppower of eminent domain or by reason of any act oT any public or quasi public ch damages are payable. Tenant agyrees to execute such instrument of assignment as y Landlord for the recovery of sucD damages and agrees to turn over to Landlord any hat may be recovered, provided,-however, Tenant may recover for itself damages ,for xtures which -were installed and paid .for by Tenant at its own cost, provided l5. Defaults of the following shall 6e an event of default -Deposit or other money, or (2) if_Tenant and fails to cure sae m default under any c Id lord) or (3) if any part thereof upon exec sent of its propert f olventi or (6 ify ar i creditors (whether ~ against, 7enantr or (7) if Tenant fails 'to m the period of time it Leased Premises are rea the Leased Premises a lifted 6y this lease or fails in the payment c consecutive months, or ling that such defaults berate and incurable. e of the occurrence of r its agent,shaTT have vthout notice or demon eves and other occupant without limitation, c t have for trespass or liable as hereinafter provided. (B) In case of re-entry or dispossess this lease by Landlord as in paragraph,"(I Landlord for all the expenses Landlord ince making any new lease with another tenant; br incurred in putting the Leased Premises in Tenant agrees it will remain liable to Landi up to the time of such re-entry, dispossessi of the failure of Tenant to observe and pe addition, for each month of the period, whi Lease Term, Tenant shall pay any deficiency Tax Rent, Common Area Rent and all other question, less the net amount, if an , of tenant, Landlord may relet, the LeasedyPrem or more than the period which would have a concessions or free rent to a new tenant. Premises or any part thereof to anyy new ten. liability; and Landlord shall not be liable if relet, for failure to collect the 'rent reletting shall be ap lied first to the fora payment of Rent and o~her payments due from- a also of within 15 or agree) all levy I ~chment or efit of c cy, insol in or by ever or ti take 'posse :ed so to Ipancy, or 6 Tenant: (1 if Tenant fails to fails to per orm or observe anv other than the events of default can failure to pay Rent, Security after notice from Landlord, or- if etween Tenant and Landlord (or an attach or take Tenant's leasehold process Of law or (41 if Tenant rs, or (5) if tenant is declared or reorganization proceed in or posed common law composition) is is appointed for any of Tenant's and lord has given notice {o :ase is transferred to or Tenant except as may be s at the Leased Premises, hen due, .al~.~iM.#kn.6imai+y. y such failure shall 6e eriod of twelve months sipmilar default shall be • a total of three montt 11 have been cured, any of said events of defa option to terminate the to enter the Leased Pre id their property 6 leg ling, of door locks or rerston or for any other on by legal " above pro 's for: legal kerage comma good order Ord for all F n or terming form said Te n would oche between the rent that w the rents a .es, or any i tstitufed thl Landlord's rt for any ri n any way fo order such r C) In any of the circumstances mentioned in the fore shall ave the right to hold Tenant liable upon the sever election, instead of holding Tenant so liable, forthwith to remaining balance of the Lease Term and all accrued Rent imm against Tenant, as liquidated damages all accrued Rent and a penalty, an amount equal to the excess of (i) the Rent that T for the balance of the Lease Term if Tenant had not default the Leased Premises for the same period. (D) In the event of a breach or threatened breach by have the right of injunction and the right to invoke any rei re-entry, summary proceedings and other remedies were not particular remedy shall not preclude Landlord from any other Leased Premises are located in Pennsylvania or any other ju rights or remedies provided that such rights or remedies are the cease agreement, Landlord hereby specifically reserves si is hereby deemed to have incorporated and expressed in total remedies, and Tenant hereby acknowledges notice of such inc extent permitted by law, anv and all objections or claims legal proceedinngs torthat ende5and waives any rights laws, relating to the event of a tenant being dispo Poss@salon of the Leased Premises by reason of it re-ebtr " as used in this lease are not restricted t ((F~ Landlord and Tenant mutually agree that i procaeding or counterclaim browght by either against or'in any way Connected with this lease, or their r use or occupancy. Tenant further agrees for itself a guarantor of this lease that no counterclaim or Seto -9- ult mentioned in (1) through (11] s lease and shall have the righhf, mises and dispossess Tenant, its al proceedings, use of reasonable otherwise, Tenant hereby waiving damages; but Tenant shall remain dings or otherwise, or termination of Tenant agorees it will be liable to related fo obtaining possession and in obtaining another tenant; expenses reparing for re-rental; in addition and other charges required to De paid nd for Landlord's damages, arising out s covenants herein contained; and in have constituted the balance of the ly installment of Base Rent plus the have been payable for the month in y collected by Landlord from a new hereof for a term which may be less nce of the lease Term and may grant sal or failure to relet the Leased shall not release or affect Tenant's are to relet the Leased Premises, or ing. Any monies collected from any damaoes of Landlord and then to the ing paragraph "(B " in which Landlord rent days, Land ord shall have the ~clare alT the aggregate Rent for the lately due and pa able, and to recover o for loss of a bargain and not as a ant would have been obligated to make over (ii) the fair rental value of tenant of this lease, Landlord shall ly allowed at law or in equity as if 'rein provided for. Hention of any remedy in la.. or in equity. If the sdiction affordfny landlords certain pecifically reserved or expressed in i rights .and remedies and this tease any and all such reserved rights and poration and waives, to the fullest f irregularity arising out of such intention to re-enter or institute ion granted by an present or future any cause, or ofyLandlord obtaining breach. The words "re-enter" and y waive trial by jury in any action, or as to any. matters ariseng out of p. as Landlord and Tenant, or Tenant's its successors or assigns and for any interposed in any action by Landlord Initial Her ~y landlord; ; Tenant ' ' u, . ,: ~ ~. . i i 1 ~ _v 1 ~~. .based on non-payment of rent even if such counterclaim or setoff is based on Landlord's alleged 2 breach of a duty to repair or alleged breach of quiet en,)oyment or any other allegation or even if 3 it is alleged to be inextricably related to laddlord's claim far Rent. q I6. Subordination 5 16. (A) This lease is and shall be subject and subordinate to (i) all gground or underlying 6 leases, and (ii al) mortgages or other security instruments which may now or bereafter~affect such 7 ground or underlying, leases and (iii all mortgages or other security instruments now or hereafter 8 placed on the Shopping Cen)er, and ~iv) all renewals, modifications, consolidations, replacements 9 and extensions of any such underlying leases and mortgages. This clause shall be self-operative and 10 no further instrument of subordination shall be required by any ground or underlying lessee or by II any mortgagee. !n confirmation of such subordination, Tenant agrees to execute promptly any 12 instrument that Landlord may request. However at the option of Landlord or such mortgagee or 13 ground lessor or secured party, this .lease shall be paramount to such mortgage or ground or 14 underlying lease or other security instrument. 15 `B) if Landlord transfers its interest in the Leased Premises, or proceedings are brought for I6 foreclosure of any such mortgage or in case of sale in lieu thereof, or termination of any such 17 ground or underlyying lease, Tenant aggrees, if requested to attorn to such transferee, mortgagee 18 ground or underlying lessor and to deliver, withoua` charge, instruments acknowledging such 19 attornment. 20 (C) Tenant agrees that it will give prompt written notice of any default b Landlord to the 21 holder of all mortgages, ground or underlying leases and security holders if the deefault is such as 22 to give Tenant a right to (i) terminate this lease, or (ii) reduce the Rents or any other sums 23 reserved, or (iii) credit or offset any amounts against Rents, provided Tenant was given notice in 24 writing of the names and addresses to which said notices should be sent. Any mortggagee, ground 25 lessor or security holder shall have the rigght to cure Landlord's default within bU days after ' 26 receipt` of Tenant. s -notice; .and •no •such'rights:or remedies shall. be exercised by Tenant until the 27 expiration of said 60 days (or such additional time reasonably required to curs 'such default). 28 17. Waiver of Subrogation 29 17. Tenant hereby releases Landlord and ail other persons claiming under it, to the extent of its 30 insurance coverage, from any and ail liability for an tosses or damages caused by fire or any of 31 the extended coverage casualties, or any other insuredycasualty , even tf such fire or other casualty 32 shall be brought about by the fault or negligence of Landlord or of any, ppersons claiming under it. 33 Tenant will cause its insurance company to endorse its insurance policy with a waiver of subrogation. 34 36 37 39 ~0 44 45 46 47 49 51 52 A 16. Tenant ag this lease or a sublet the whole y obYYai n on ach occas ska~~ ~ot bee unreal Landlord's administrativ any assignment or sublet subletting or occupancy Landlord's consent, Ten under this lease and s right to collect all the Tenant or waivino env rshal 1 con accepting the occupant as a per mergers consolidation or liquid an assignment for the purposes any circumstances, Landlord shal assignee, transferee or subtenar or transfer of Tenant's corpora arty subletting. In any case w assignment of this lease or tri desppite the prohibitions contai ri ht to refuse its consent to (i~ Tenant (as the proposed ass any Percents a Rent due for the is to occur for this purpose, the number o days in such ela,pp assignee covenants and agrees it Percentage Pent payable to land the basis of reducing the "Gross unelapsed portion of the said assignment contains a provisioi re-enter, re-possess or otherwi lease. Tenant further agrees proposed assignment, mortgage, therein, or to any proposed subl performed all of Tenant's obli Landlord's consent is sought, Te in posses ion of the eased ~Sc ~- ....i~~.~r Assignment or Subletting 1 not assign, mortgage, pledge, or otherwise transfer or encumber ein, either voluntarily or by operation of law or otherwise, or the Leased Premises, or permit occupancy by anyone else, without trd ' pri r written consent which consent wi:t~ihel~. -------=---------=---------Tenant agrees to pay irney's fees. for review or preparation of any documents relating to the event of any assignment voluntarily, or by operation of law or Leased Premises by anyone else even if wrongfully done without not be released from any obl)gations, liabi flies or covenants inue to remain responsible thereof, and Landlord shall have the ible b the assignee, subtenant or other occupant without releasing ~inst yl•enant for its default underl this Article 18 and without [led tenant, Any transfer of the corporate stock of the Tenant or Ion voluntarily or by operation of law shall be deemed the same as this Article and shall require Landlord's written consent. Under not be liable for any money damages to Tenant or Tenant's proposed for refusal to consent to any assignment or transfer of this lease stock or sale of Tenant's business or for refusal to consent to i the applicable law or a court order validly granted .permits,an fer of Tenant's stock or a merger or consolidation or mortgaging I in this Article 18, Tenant agrees that Landlord shall have the proposed asstg nment and no such assignment shall be valid, unless iorl oavs landlord, prior to effectua ing the proposed assignment, rd portion of the said Lease Year bears to 365); (ii) the proposed the pro osed instrument of asstanment) that the computation of any ird for pthe unelapsed portion of said lease Year shall 'be made on Sales Base" in the same proportion .that the number of days in such Lease Year bears to 365, and (iii) the proposed instrument of pursuant to which the pro osed assignor waives all rights to ein any right to occapy iPhe, Leased Premises or re-ac utre the 'fat Landlord shall have the right to refuse its consent to arty edgge or other transfer or encumbrance of this lease or any interest sting, in any case wherein Tenant has not faithfully observed and ations under this lease or in any case wherein, at the time ant is either in default of this lease, or Tenant is not actually es and operating for business therein. • ~~ 73 19. Nolding Over 74 19.~ If Tenant or anyone claiming under Tenant remains in possession of the Leased Premises after 75 the expiration of the Lease Term without any agreement in writing with Landlord with respect 76 77 thereto, the person remaining in possession shall be a tenant at sufferance; and durin i g such holding over, Base Rent shall be twice the rate which w as in effect immed ate) prior to t v he Lease Term 78 expiration, which Landlord may collect without admission that Tenant's est ate is more than a tenancy 79 at sufferance and all the other provisions of this lease shall apply insofar as the same are 80 applicable to a tenancy at sufferance. B1 20. No Waivers by Landlord 82 Z0. Landlord's failure to complain of any act or omission by Tenant, no matter how long, shall 83 84 not be deemed to be a waiver by Landlord of any of its rights. No waiver by Landlord ' at any t .time, ]1 h express or implied, of any breach of this lease or requirement of s obtaining Landlord consen a s 85 be deemed a waiver of a breach of any other provision of this lease or any subsequent breach of the 86 1 same provision or ' a waiver of any necessity for further consent. If any action by ' Tenant shall 8 require Landlord s consent or approval, Landlord s consent to or approval of such acti on on a ny one - 10 - Initial Her Landlord' Tenan~ t t ~..ti rees that it ny interest or an part r, ~ 1-° t,' ,„ 1 occasion shall not be deemed a consent to or approval of said action on any 2 consent to or approval of any other action on the same or any subsequent i 3 Tenant or acceptance by Landlord of a lesser amount than due from Tenant 4 anything but payment on account, and Landlord's acceptance of a lesser 5 endorsement or statement thereon or in a letter accompanying said check th 6 payment in full shall not be deemed an accord and satisfaction. Landlor 7 without prejudice to recover the balance due or pursue, any other remedy. 8 that landlord may accept pa ments of Rent (and/or partial payments thereat 9 Tenant, without pre,7udvice tyo the subsequent or concurrent exercise by L 10 remedy available to Landlord under this lease or by law or in equity. Any a 11 any payment made by Tenant after termination or expiration of the Lease Tera 12 acceptance of rent but rather shall constitute a payment to Landlord on ace 13 occuppancy of the Leased Premises. All rights and remedies which Landlord m I4 or by, law or in equity shall be distinct, separate 'and cumulative ar 15 inconsistent with each other; and no one of them, whether exercised by La 1fi deemed to be in exclusion of any other; and any or alt of such rights and r 17 at the same time. ubsequent occasion or a casion. No payment by shall be deemed to be mount by check with an said lesser amount is may, accept such check 1t is ex ressly agreed even after default by dlord of any right or ~eptance by Landlord of shall not constitute an int of Tenant's use and ~ have under this lease shall not be deemed ilord or not, shall be iedies may be exercised 18 Z1. Rules and Regulations 19 21. Tenant agrees to observe and complyy with, and will cause its subtenants and concessionaires, 20 and its and they employees and aggents, to observe and comply with all rules h and regulations from ' 22 time to time promulgated by Landlo rd 6y notice to Tenant for t e benefit, in Landlord s sole judgement, of the Shopping Center; and such rules or regulations shall have the same force and 23 effect as if originally contained in this lease. 24 22. Failure of perfonance by Tenant 25 22. If Tenant shall default under this lease, Landlord may, at its election, immediate)y or at 26 any time thereafter, without waiving any claim for breach of agreement, and without notice to 27 Tenant, cure such default or defaults for the account of Tenant, and the cost to landlord thereof 28 plus interest thereon at the annual rate of interest equal to the highest lawful rate, shall be 29 deemed to be additional rent and shall be added to the installment of rent next accruing or to any 3D subsequent installment of Base Rent. Tenant agrees to pa all attorneys' fees, costs and expenses 31 incurred by Landlord in enforcing the provisions of this lease, suing to collect Rent or to recover 32 possession of the Leased Premises, whether the lawsuit or other action was commenced by Landlord or 33 by Tenant. 34 23. Limitations on Landlord's Liability 35 23. (A) The words, "Lartdiord" and "tenant" shall include the original persons named expressly as 36 Landlord and Tenant, and their respective transferees, legal representatives, successors and 37 assigns, and all their liabilities hereunder shall be joint and several; and except as otherwise 38 provided in the next sentence, the agreements and conditions contained in this lease on the part of 39 either party to be performed and observed shall be binding upon and inure to the benefit of the 4D Parties hereto and their respective transferees, le al representatives, successors and asstgns. 41 'Landlord", as used herein, means only the owner for ~he time being of Landlord's interest in }his 42 lease, and in fhe event of a transfer by any landlord of its interest in this lease, the transferor 43 shall be automatically released from all liability and obligations of the Landlord subsequent to the 44 time of transfer. 45 (B) Notwithstanding anythingg,' to the contraryy Tenant a rees it Fvill look sole)Y to Landlord's 46 estate in the Shoppping .Center, suolect to the rigl~(s of the holder of any wortgage thereon, as the 47 sole asset for collectvon of any claim, judgement or damages or enforcement of any other judicial 48 process requiring payment of money . Tenant agrees that no other assets of Landlord shall be subject 49 to levy, execution or other procedures for satisfaction of Tenant's rights or remedies. 24. 8iscellaneous 24. (A) This lease contains the entire and statements or representations or written matter t effect. .This lease shall not be modified or teri Landlord and Tenant, except for a termination ex party executes this lease as "Tenant", the liat several. Neither this Tease nor an memorandm shall be. recorded in_any public records without L+ s Tenant's store n•isions ily agreement between the parties. No oral contained in this lease shall have any force or ited orally, but only by a writingg signed by the ssly permvtted by this lease. If more than one ty of all such signatories shall be joint and assignment or memorandum of assignment thereof ord's prior written consent. Tenant for its business shall constitute a ses are in the condition required by this lease vction work with respect thereto. nght at any time to use the roof, foundation for placing of signs or for the purpose of on is made for the doing of an act by any person, it is rch person at its own cost andyexpertse unless a contrary foregoing, however, Tenant expressly, covenants and agrees b Landlord in the course of enforcvn Landlord's rights fees relate to actual commencement of regal proceedings or Additidnal Rent and"all other charges required by"th of the covenants and other a reements on its part, sf be absolute and unconditional irrespective of any di performance 6y tandtord. Tenant will not suspend, d observe any covenant or agreement for any cause generality of the foregoing, any acts or circun constructive eviction, failure of consideration, or, this lease, for destruction of or damage to the Leas or the taking by eminent domain of title to or the r' Leased Premises, or for any change in the tax or otl the State where the Leased Premises is situated or ai whether expressed or implied, or any duty, liability with this lease. Nothing herein contained shall performance of any of the agreec~ents on its part hers sail to perform any such agreement on its part, Te action against landlord, as Tenant may deem necessary ts'of Base Rent, Tax Re lease and to perform an be a general obiigatio ise, offset, counterclai ~ntinue or abate any su hatsoever including, v nces that may constii ept as expressly and sp Premises, commercial fri of temporary use of al laws of the United Sta political subdivision ti obligation arising out construed to release contained, .and in the ~ t may instvtute a sepa compel performance. Common Area Rent observe any and alt of Tenant and shalt or right to compel payment or fail to :hoot limiting the :e an eviction or ificaliy allowed by tration of purpose, or any part of the s of America or of •eof, any agreemenf ~f or in connection ]I and Initial He_r ; , ,' Landlord' ` Tenant ' G- ~` 1•• 2 3 4 5 6 ~. (F) It is agreed that Tenant's "AS i5" acceptance equipment, apparatus, plumbing, heating, air. conditioning, e systems (as stated to paragraph 7 above) Includes Tenant'; eatent defects therein. It is further agreed that, in thi found to be PPresent within the Leased Premises which doe foundations, footin s or a load-bearing structural building give landlord written notice of such fact; (ii) Tenant Including (but not limited to) performance of alterations, that disturb the condition, or violate any legal requiremen retain control of all procedures employed to cure such co selection of consultants, attorneys and contractors retain curative work; and (iv) Landlord shall at Landlord's option does not elect to do it, Tenant shall at Tenant's ex( accomplished in accordance with all laws regulations a _ , f the Leased Premises and all of the ectric, water, waste disposal and other acceptance of any possible latent or event any latent or patent defect is not consist of defects in the roof, omponent: (i) Tenant shall immediately shall forthwith cease all activities, renovations or redecoration activities • (iii) Landlord may {if it so elects dition including (but not limited to d for curative work and scheduling of but at Tenant's expense (or if Landlord Anse) cause the curative work to be d legal requirements of governmental by Landlord to do so, in order to ised Premises for business, remove its :he cure and generally cooperate with rcably waives all claims for personal ness or otherwise in consequence of any tency between this clause (F) and any to any provision regarding repairs, ions oT this clause (F) shall control; Iny latent or patent defect within the lord's reasonable control" within the :tes or authorities having ,jurisdiction. If requ nPlish the cure, Tenant shall temporarily close the story and other contents permit entry to accomplii ord and its agents' efforts; and Tenant hereby it y, property loss or damage or other damage, loss of t occurrence. In the event of any conflict or incor provision of this lease including but of limi enance, alterations and comp lance with laws: the prr t is expressly agreed that any discovery hereafter d Premises shall be deemed to be a cause beyond I ng of paragraph 25 of this lease. •26 28 30 31 34 37 .25. .Unavoidable Delays 25. Hhere either party hereto is required to do any act;'the caused by Act of God, war, civil commotion, fire or other casual of labor, materials or equipment, government regulations or reasonable control shall not he.counted in determining the t• completed. In any case where work is to 6e aid for out of awards, due allowance shall be made, both to the party requir party required to make such payment, for delays in the toile Tenant agrees that the pprovisions of this Article 25 shall not I of the time for Tenant to pay Rent, or other money; and that the not in any manner excuse or permit delay in obtaining and ma required to be obtained and maintained by Tenant pursuant to the m P 38 26. Partial Invalidity 39 26. Each provision of this lease shall be valid and enforced to the fullest extent permitted by 40 law. However, if any provision of this lease or application thereof to any person or circumstance 41 for some unintended reason shall to any extent be declared by a court to be Invalid, the remainder 42 of this lease or the application of such provision to persons or circumstances other than those as 43 to which it is held invalid shall no t be affected thereby. 44 27. Inability To Deliver Premises 45 27. In the event for any reason or cause, Landlord shall be unable to deliver the Leased Premises 46 prior to one year after the date of the execution of this lease by Landlord, then Tenant or Landlord 47 shall have the option within 3D days thereafter to terminate this lease by giving written notice to 48 the other, and then this lease, immediately, on giving of such notice, shall be terminated, and both 49 Landlord and Tenant shall be relieved of all liabilities and obligations hereunder, except that 50 Landlord shall return Tenant's Security Deposit, if any. 51 ~ 28. Sole Broker 53 28. Tenant represents: that no broker or other person ~ .~ i4 was involved in this lease, and that no conversations or prior negotiations were had with any 55 -~~__ .~__ .~_ .,.__,___ concerning the renting of the Leased Premises. Tenant agrees to 56 indemnify and hold Landlord harmless against•any claims for brokerage commission or finder's 57 arising out of any conversations or negotiations had by Tenant with anyone,~~ve 58 29. Estoppel Certificates 59 29. Tenant aggrees it will, at an time and from time to time, within ten days following written 60 notice by LandTOrd deliver to Landlord a signed and acknowledged written statement presented by 61 Landlord certifying: the date of this lease and that this lease is in full force and effect and 62 unmodified (or if there have been modifications, stating the modifications); the amount of monthly 63 Base Rent payable throughout the Lease Term and the Percentage Rent Rate used; the date to which the 64 Rent and other payments have been paid; that Landlord is not in default or if default is claimed, 65 specifying the specific nature and details of each such default); whet er or not there are any 66 offsets, defenses or counterclaims against enforcement of the obligations to be performed by Tenant• 61 and stating any additional matters required by Landlord or a mortgagee. Failure to timely furnis(i 68 such statement shall be a default by Tenant. 69 30. Modifications for Financing Reasons 70 30. Tenant aggrees Landlord may at any time and from time to time place and replace mortgages on 71 all or a part of the Shopping Center. If a mortgaggee requires any modifications }o this lease as a 72 condition to issuing a commitment or closing the•loan, Tenant agrees to sign, within 10 da s after 73 request the necessary lease amendment to accomplish such modifications, fatting which Land~ord may 74 termiha~e this lease for Tenant's default; but Tenant shall not be required to agree to any 75 modification which changes either the Rent the permitted uses of or the size or location of the 76 Leased .Premises, the commencement date or duration of the Lease Term, or the improvements required 77 to be made by Tenant or Landlord to the Leased Premises. 76 31. Shopping ••*.enter Changes 79 31. Neither Exhibit "A" nor this lease is a warranty by Landlord that the Shopping Center will 80 remain as shown. Landlord in its sole discretion may at any time relocate, increase, reduce or 81 otherwise change the number, dimensions, levels or locations of the buildings parking areas, exits 82 and walks and may make alterations or additions to any buildings or parking fa cilities. If at any 83 time Landlord desires to alter or improve the facade of the Shopping Center so as to modernize and - 12 - Initial Her ) ime attributable ~d.irecily to delays y, labor difficulties, or shortages other causes beyond such party's e during which such act is to be Insurance proceeds or condemnation perform such work and to the of such proceeds and awards. applicable at all to permit delay rovisions of this Article 25 shall taining any policies of insurance rovisions of this lease. to ion Landlord' ` °' `-r; ~ Tenant ' C~ 1 ~ make it more aesthetically appealingi and Tenant is requested to install a new permanent exterior 2 sign or a temporary sign or improve its store front, Tenant agrees to comply with such request and 3 to follow the design of Landlord's architect, at Tenant's sole cost and expense. In the event of 4 any such alteration, improvement or modernization, Landlord reserves the right to use portions of 5 the Common Area for construction related activities; and to erect temporary scaffolding to front of 6 the Leased Premises. Tenant hereby waives anyy claim for rent abatement, loss of business or damages 7 arising out of any Temporary inconvenience allegedl experienced by Tenant during the course of any 8 such alteration, improvement or modernization, or during any repair activities in which Landlord is 9 engaged. 10 32. No D tion II 32. The submission of this lease to Tenant for review or even for Tenant's signature after review 12 does not constitute an execution and delivery hereof by Landlord and Tenant. No unsigned lease can 13 be enforced in any manner nor give rise in any manner to any rights or remedies. 33. Notices 33. All notices and other communications authorized or reqquired hereunder or relied on in order to impose liability on the other party shall be in writing and sent 6y certified or reggistered mail return receipt requested, postage prepaid or by telegram or by overnight independent courier such as Federal Express (and in order to be effective a copy of any notice o{ landlord's default must be sent by Tenant to the holders of any mortgages, ground leases or security interests as per Article 16(C) herenroniafi~)P. GIfug~ivFemn to Tenain~t~tthNe spaAme shall be effective when mailed to Tenant at: d~2toNSifC1~'OtIPeT"~fddreSST'a?:"Teiia~T~(~y-hel~eaftai`' d~~i~na~e y notice to Lan ord; an if given to Landlord the same shall be mailed to Landlord at P.0. BOX C, 1044 Northern Boulevard, Roslyn, New York 11576 or to such-other yerson~or at such btfier address.~s landlord,may hereafter designate by notice to Tenant. Notice to Landlord shall be effective only on the date actually, recei'vetl. Notice to Tenant shall be effective one (1) day after sent to. Tenant. The purported giving of notice or exercise by Tenant of any right, opttion.or privilege by any method or means of communication other than 6 written notice given to strict accordance with the preceding provisions of this Article 33 shall lie null, void and of no force or effect whatsoever, even if any such other method or means or means of communications used by Tenant succeeds in conveying actual notice of such purported exercise by Tenant. SEE RIDER ATTACHED HERETO AND MADE A PART HEREOF. IN WITNESS WHEREOF, the parties hereto have executed this lease under heir respective hands and 2 seals as of the day and year first above written. 3 WITNESS TO LANDLORD: LANDLORD: KIMCO D LOP NT OF GIANTS, INC. /1 . q "~~ ~ ~ ~ corporate seal) 3 ~ C. ? Date: `~~ ~~~1~ 6 WITNESS TO TENANT: 7 z ~ dpi ^, X42 `_ 9 SS8/Fed Tax ID R TENANT: KIM CHAN Date: / ~ - 13 - 135-82-7982 Initial N ; Landlord' l,~ Tenant ' ~--; .. , couerr of On the of the jurisdiction aforesatd, and did say that they are the (titles) and that the know the seal of said i seal andY that it was so affixes acknowledged execution of said y voluntarily executed. (Notari 55: ,19 be t~ a Notary Publit in and for appeared (names) personally known, who by me duly sworn vely of •atio cal affixed to said instrument is such coryora{e r of the Bo f Directors of said corporation; and they neat to be the volunt t and deed of said corporation by it My Commission expires FOR TENANT (INDIVIDUAL): STATE OF /i'~ 1( N~'1 ) 55: COUNTY OF ~ ,/ ) On the yJ ~ day of ~ ~,19 91 before me, a'Notary PuLli'c in and for the jurisdiction aforesaid personal y ap ared (name):_ _ to me personally known, who by me duly sworn did say that Fe acknowle ~i tion o'f-said~inst~ument to be his voluntary act act and by him volumtarily executed. (Notarial Seal) My Commission expi' ~~ LEE M.iONG Notts public, Stete d Nwv Yntt No-494n4B2 pwYdiad in Nstwu CoutttY rrpmmitwoa ~rM ~' Co+A - 14 - Initial Ner - ; Landlord' ' Tenant ' ~ ~` • nAnt,nnrr.J/~~w~rn PAGE. 1 RIDER TO LEASE DATED AS OF SEPTEMBER•18, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. 34. Notwithstanding anything provided herein, if there is any discrepancy between the printed form and this rider, the rider shall prevail. 35. Tenant's sign design drawings shall be submitted to the Landlord for Landlord's approval prior to the erection of Tenant's sign. The sign shall not exceed 30" in height, nor shat} the length exceed 2/3• of the Tenant's storefront. Flashing, neon or moving lights on sins are prohibited. All the provisions of this Lease shall apply to said sign, insofar as said provisions are appplicable, including but not limited to Tenant's, duty to repair (Article 10) and insure (Article 11) said sign, and said sign shall comply with all laws. The sign shall not be placed in such a manner that it extends above the .parapet or facade and shall be in the designated area. 36. It is understood and agreed tliaf`Tenant" has Inspected -and examin'e'd the premises being leased and the Parking lot and common areas of the Shopping Center and is familiar with the physical condition thereof; Landlord has not made and does not make any representations as to the physical condition of either the Leased Premises or the Shopping Center and Tenant agrees to take them "as is". 37. (A) At its expense, within thirty (30) days after the date of Landlord's execution of this Lease, Tenant small submit for Landlord's written approval complete detailed, drawin s and specifications (hereinafter collectively referred to as "Plans"~ for all the work to be done by Tenant to the Leased Premises, failing which landlord has the right to terminate this Lease and to retain the Tenant's ~ntire~ cu~~~ ~~ deposit as liquidated damages..Cu-.•.~~~~~~~''L'{"`s ~u.a (B) landlor shall inform Tenant of any objections to said Plans within days after receipt; then Tenant within fifteen (15) days shall de aver to Landlord corrected Plans, which Landlord shall accept or reject within the next days. Failure to inform Tenant of objections within said time periods shall be deemed Landlord's waiver of objections. Jr (C) If Tenant's Plans are approved, it shall not be deemed Landlord's undertaking that they conform to law or impose any liability on Landlord. Tenant shall immediately apply for all governmental permits necessary for Tenant's work. After such permits are issued and Landlord has completed the work, if any, Landlord has agreed in this Lease to do, Tenant agrees to promptly commence and complete Tenant's work in conformity with said Plans and with all legal requirements and with the requirements of the Building Department having jurisdiction, and before commencing Tenant's work, Tenant will deliver to Landlord all of the following: (11 n r.... i....,.a.,.. r .. .....l ..a ;.,., _b,..,.1 __ 3,...,n_..fJ ~,..7t~.,..1 +r n Comprehensive general liability insurance naming Landlord as additional insured for at least :x.000,000 combined single limit for bodily injury and property damage, 'and (3) Contractor's written Indemnity :agreement that Contractor agrees to indemnify, save and hold harmless Lanolord, its agents, employees and assigns, from all liabilities, claims, losses, bens, damage's and suits of whatsoever nature for personal injury, death or property damage alleged to arise out of the work performed under the contract, whether by Contractor or by' any subcontractor, and whether asserted against Landlord or Contractor, and (~;- ^--`-~ '~ " ~ ' TEN:Lii `~ ~,,~ •EGIMC~~AN.374/LS/TR `...~ PAGE -c• ~ , RIDER TO LEASE GATED AS OF SEPTEMBER 1$, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED A7 UPPER ALLEN, PENNSYLVANIA. (D) Tenant shall comply with all legal requirements during its work; and when completed, Tenant's work shall comply with all laws, ordinances, regulations or orders of public authority, and with all Fire Insurance Rating Organization (or similar body) requirements and the liability insurance company's requirements which insure against accidents connected with the Leased Premises, and Tenant shat] obtain and deliver to Landlord the certificate of occupancy (or its local equivalent if the same are not issued in the jurisdiction) for the Leased Premises.. (E) If Landlord or its representatives inspects the Leased Premises and determines that Tenant's work is not being done in accordance with the approved Plans, Tenant shah correct any deficiencies or omissions immediately. (F) Tenant agrees not to permit any mechanic's or other lien to be filed either against the Leased premises or the Shopping Center or Tenant's leasehold interest by reason of ~work;• labor,.-ser-vices ..or materials supplied to Tenant or anyone holding the leased Premises through Tenant. If any lien is filed, Tenant shall within ten (10) days after notice of the filing, cause it to be discharged of record, failing which Landlord, in addition to any other right or remedy, may (but shall not be obligated to) discharge such lien by deposit or by bonding proceedings, and if Landlord so elects, it may compe] the prosecution of a foreclosure action by the lienor and pay the amount of the judgment or may pay the claim for Tenant's account without compelling the' itenor to foreclose. Any amounts so paid to satisfy a judgment or claim, or deposited or paid to obtain a bond or discharge the lien, with interest thereon at the rate of 12e per annum or the highest legal rate (whichever is less) from the date of payment, shall 6e paid by Tenant to Landlord on demand as additional rent. Nothing herein shall be construed as the consent or request of Landlord, express or implied, to any contractor, subcontractor, laborer or materialman for performance of labor or furnishing of materials or as giving Tenant the authority to contract for or permit the rendering of any service or the furnishing of any material that would give rise to the filing of any lien. ~"renav-•i-/ c' crn~irrxt,~or (G) Tenant shall require ^~-~..~~r- to furnish to both Tenant and Landlord on completion of the work a guaranty, for a period of one (1) year from final completion of all work, that all work and materials will be free from ail defects and that all apparatus (i.e., air-conditioning equipment) will develop capacities and characteristics specified in the approved Plans upon use, and that whenever within one (1) year of the final acceptance of the work, Contactor is notified in writing by either Landlord or Tenant that an item of equipment, material or workmanship is defective or in some other way does not meet the. specifications requirements, Contractor, agrees to immediately replace, repair or otherwise correct the defect or deficiency without cost to Landlord. Additionally, Tenant agrees that the following items of work shall be guaranteed for periods in excess of the •one (1) year specified herein: Motor Com ressor Units: for five (5) years{ Exterior Walls:- for two (2) years guaranty against air and moisture leakage),; Roofing: for two (2) years. • (N) In the event Tenant's work involves the construction of a demising wall, Tenant shall physically .indicate the proposed location of the demising wall at the Leased Premises, notify Landlord's architect and/or representative that the' location has been marked and that construction of the wall is about to begin, and give Landlord a reasonable opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (I) For any Tenant work that involves Penetration of the roof surface, Tenant agrees to employ Landlord's roofing contractor, thereby ensuring that the roofing bond and/or warranty will remain in full force v~:.~- , iEN/lliT i. v~ 1L '~KIMCHAN.374/LS/TR - . PtivE3 "' ~~ RIDER 70 LEASE DATED AS OF SEPTEMBER•18, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CNAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. and effect, and the maintenance of Tenant's roof work will be the sole responsibility of Tenant, including repair, of adjoining areas of the Shopping Center that might be affected due to water penetration through Tenant's roof work. .. 38. Prior to the commencement of the Lease, Tenant shall, at its own cost and expense, install and maintain afire extinguishing system within the hood and duct of the cooking facility which satisfies the requirements now and hereafter established by Landlord's property insurer and to provide Landlord with a certificate evidencing that same has been installed. Tenant further agrees, at its own cost and expense,• to maintain the system throughout the term of the Lease. 39. Prior to the commencement of the lease, Tenant shall, at its own cost and expense, install grease traps ' -Prenr+ses~connecting all lines from Tenant's, kitchen to the. main sanitary branch and exhaust. system respectively..• The installation of said grease traps shall comply with all local laws and regulations. ~~.:~ .ca~~.e ~,y lv~-a.Q -QG• 40. Tenant acknowledges that Article 9(C) of the Lease prevents, the use of the Leased Premises in a manner that shall be offensive and that ' un]ess properly conducted, the operation of a restaurant can cause there to be an offensive odor in and about the premises. Tenant agrees that it shall immediately, upon the request of Landlord, install such ventilation ' and other equipment as may be necessary to relieve the premises and the adjoining and surrounding premises from any offensive odor caused by Tenant's business operation and that Tenant's failure to do so shall constitute a default hereunder. Landlord shall have all rights permitted under law to enforce a claim for its damages including, but not limited ' to, the right to cancel this Lease and Tenant shall defend, indemnify and •hold Landlord harmless of and from any loss, cost or expense arising out of odor or other conditions in the Leased Premises. , 41. It is understood that the Leased Premises are presently occupied by another existing tenant under a different lease, which lease is due to be terminated on September 30, 1991. In the event said other tenant fails to vacate the Leased Premises by September 30, 1991, and Landlord is delayed in obtaining possession from said tenant. then Landlord will de]iver possession of the Leased Premises to Tenant as soon as possession is obtained by Landlord. 42. Landlord agrees that during the term of the Lease and so long as Tenant is in possession and is not in default hereof, Landlord will not hereafter Tease any portion of the Shopping Center to a tenant whose principal permitted use is the operation of a restaurant serving Chinese food. The aforementioned restriction shall not apply to those stores marked as "i" and "2-4" on the Exhibit "A" attached hereto and made a part hereof. ~ ,~ END OF RIDER a- G/c.u.:t.o-~ ~~~~"~ ``~.c,e.C/ Gc.~{"t~ `t~ia„~ ~i v~CG:. u:~nrt h•-" °. u~rc^er • i i_e^aau~ ~i ~~ ~~~~,~ . • _ •_ ;r:IMCHAN.374~L$~TRy PAGE 4 . , a RIDER TO LEASE DATED AS OF SEPTEMBER I8, 1992, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVAWIA. EXHIBIT "A" THE (EASED PREMT$ES SHALL BE A STORE CONTAINING APPRDXIMATELY 1,500 SQUARE FEET KNOWN AS STORE "5" LOCATED WITHIN THE AREA HATCHED ON THE PLOT PLAN OF THE SHOPPING CENTER (SITE ND. 374), SHOWN BELOW. „ ~ ~ I ~•~ • ~i _ _ ~~ I Io4G96 L-'1 ~I~ Lam.- -- °- , I , I a ~ 1 ~ ~~ ' a , , , , -- -;~ ~,....~ 7EliF.i.i ~ •. SHERIFF'S RETURN - NOT FOUND CASE N0: 2001-04434 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KIMCO DEVELOPMENT OF GIANTS IN VS ZHENTING LI R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, DEFENDANT LI ZHENTING but was unable to locate Him in his bailiwick. He therefore returns the COMPLAINT & NOTICE , NOT FOUND as to the within named DEFENDANT LI ZHENTING CHINATOWN KITCHEN IS VACANT. Sheriff's Costs: Docketing 18.00 Service 6.50 Affidavit .00 Surcharge 10.00 nn J'S J V So answ~ ~' -~-- .- /.- Rf Thomas Kline Sheriff of Cumberland County APPEL & YOST 08/06/2001 Sworn and subscribed to before me this y ~ day of A.D. Px~c/tHonotary _~,,; IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW KIMCO DEVELOPMENT OF GIANTS, INC., Plaintiff, vs. No. Ut- ~4H3y Cv~~,`7_~ ZHENTING LI, Defendant NOTICE TO DEFEND You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defense or objections to the claims as set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAIKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association P. O. Box 186 Harrisburg, PA 17108 Telephone Number: (800)692-7375 APPEL & YOST ra By: William J. as idy, Jr. Attorney I. .31724 Attorneys for Plaintiff 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 '! itUE COPY ~ E~~+~Ol&iD Ip 3 ~. ~ lx~r~ ts~ ha9td ~~ ~ • ,~ ~ °,... Pa. ..~ err ., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW KIMCC DEVELOPMENT OF GIANTS, INC., Plaintiff vs. No. ZHENTING LI, Defendant COMPLAINT Plaintiff is Kimco Development of Giants, Inc., a Pennsylvania corporation with a principal place of business at 3333 New Hyde Park Road, Suite 100, P. O. Box 5020, New Hyde Pazk, New York, NY 11042-0020. 2. Defendant is Zhenting Li, an adult individual, having an address of 209 Madison Street, Apartment 4C, New York, NY 10002. 3. Defendant Zhenting Li, is the Assignor by Assignment of Lease dated Apri12, 1999, wherein Defendant agreed to assume the Lease between Landlord, Kimco Development of Giants, Inc. and Kim Chan, dated September 18, 1991, both the Assignment and Lease are attached hereto as Exhibit "A." 4. The Lease is for a store in the Giant Foods Plaza, known as Store No. 5, 129 Gettysburg Pike, Mechanicsburg, PA 17055, located in Upper Allan Township. 5. By the terms of the Lease the Defendant agreed to rent the premises identified in the Lease in Exhibit "A" to be paid in monthly installments of One Thousand Three Hundred Eighty-eight and 75/100/100 Dollars ($1,388.75) for the first 12 months of the Lease on the first day of each calendar month during the Lease Term which began October 1, 2001. The monthly rent for second year is One Thousand Four Hundred Fifty-eight and 75/100 ($1,458.75) Dollars. The monthly rent for the third yeaz is One Thousand Five Hundred Thirty-one and 25/100 ($1,531.25) Dollazs. The monthly rent for the fourth year is One Thousand Six Hundred Seven and SO/100 ($1,607.50) Dollars. The monthly rent for the fifth year is One Thousand Six Hundred Eighty-eight and 75/100 ($1,688.75) Dollars. The Lease Term is to expire on September 30, 2006. COUNTI EJECTMENT 6. Paragraphs 1 through 5 are incorporated herein by reference. 7. The Plaintiff is the Owner/Lessor of the property located at Giant Foods Plaza-- Store No. 5, Gettysburg Pike & U.S. 15, Upper Allen, PA, which is described in Exhibit "A". 8. The Defendant is the Lessee of the premises located in the Giant Foods Plaza-- Store No. 5, Gettysburg Pike & U.S. I5, Upper Allen, PA, which is described in Exhibit "A". 9. The Defendant has failed to pay the rental amount of One Thousand Six Hundred Twenty ($1.620.00) Dollars from February, 2001, through May, 2001 for a total due of $6,480.00. 10. Because the rental charges due in the amount of Six Thousand Four Hundred Eighty ($6,480.00) remains unpaid, Defendant owes and the Plaintiff claims late charges at the rate of a Fifty and 00/100 Dollaz ($50.00) late fee per month for a total of Two Hundred Dollars Dollazs ($200.00) ~,_~~, 11 Common Area Maintenance fees, real estate taxes and sewer bills must also be paid by the defendant under the lease. There currently is owed Seven Hundred and Twenty-four dollars ($724.00) in Cam Chazges, Three Hundred Forty Five Dollazs ($345.00) in real estate taxes and Three Hundred Seventeen Dollars and 38/100 ($317.38) due from the defendant for a total due from the defendant in the amount of Fourteen Thousand One Hundred sixty One Dollars and 99/100 ($14,161.99). 12. Defendant is presently in possession of the aforesaid premises. 13. Notice was sent on 7anuary 26, 2001, that Defendant was in violation of the Lease for nonpayment of the rent and demanding that the defendant vacate the premises. A copy of the notice is attached to this complaint, marked Exhibit "B" and incorporated by reference. 14. Despite the terms of the Lease and the Notice to Quit, Defendant has failed and refuses to vacate and surrender possession of the premises. VJHEI2EFORE, the Plaintiff requests that the Court enter a judgment in favor of the Plaintiff and against the Defendant, Zhenting Li, for possession of the premises located at Giant Foods Plaza--Store No. 5, Gettysburg Pike & U.S. 15, Upper Allen, PA, which is described in Exhibit "A". COUNT II BREACH OF CONTRACT 15. Pazagraphs 1 through 14 ate incorporated herein by reference. 16. The Plaintiff claims damages in the amount of Fourteen Thousand One Hundred :-~ Sixty-One and 99/100 Dollars ($14,161.99) fox Defendant's failure to pay rent under the Lease as well as for interest, costs and attorney's fees. 17. The amomit of charges due through May 1, 2001 is Thirteen Thousand Nine Hundred Sixty-One and 99/100 Dollars ($13,961.99) and late charges provided for in the lease of Two Hundred Dollars ($200.00) for a total of Fourteen Thousand One Hundred Sixty One uid 99/100 Dollars ($14,161.99). WHEREFORE, Plaintiff requests that this Court enter judgment against the Defendant, Zhenting LI, for unpaid rent and late charges in the amount of Fourteen Thousand One Hundred Sixty-One and 99/100 Dollars ($14,161.99), plus costs, accrued late charges and atoomey's fees. APPEL & YOST By: Dated: ~ -"~U-'© Attorneys for Plaintiff 33 North Duke Street Lancaster, PA 17602 (717) 394-0521 ~^,II p~ /VERIFICATION ~"P17Ul~ 6'~B~Q~'`r`,~ states that he/she is ~o~ ~~c'-EbI' F of Kimco Development of Giants, Inc., that he/she is authorized to make this Verification on its and his/her behalf, that the facts set forth hi the foregoing Complaint are true and correct to the best of his/her knowledge, information and belief, and that the foregoing is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. KIMCO DEVELOPMENT OF GIANTS, INC. Dated: ~ -1U- (~~ ASSIGNMENT AND ASSUMPTION OF LEASE TENANT CODE N0.374014 KNOW ALL MEN BY THESE PRESENTS, that the undersigned Assignor, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, hereby assigns, transfers and sets over unto the undersigned Assignee, all right, title and interest of Assignor in, to, and under the lease agreement described on F~€hibit "A" attached hereto (this (ease agreement is herein referred to as the "Lease'7, to have and to hold unto Assignee, its successors and assigns, for the balance of the term of the Lease, subject to the rents, covenants, terms, conditions and provisions contained in the Lease together with the security deposit held by Landlord, if any; AND Assignee acknowledges that it has read and reviewed the Lease and ail amendments thereto; Assignee hereby assumes the performance of ail of the terms, covenants and conditions of the Lease; Assignee hereby agrees to pay the rents specified by the Lease; Assignee hereby agrees to perform all of the terms, covenants and conditions of the Lease required to be performed by the tenant under the Lease; PROVIDED, NEVERTHELESS, that nothing herein contained shall, as between the landlord under the Lease (hereinafter referred to as "Landlord") and Assignor, release or relieve, or be deemed to release or relieve, Assignor or any guarantor of the Lease of or from any obligations under the Lease and Assignor shall continue to be and remain liable under the Lease in all respects as though this Assignment had not been made, Assignor hereby waives any and all no}ice from Landlord of default of Assignee under any of tha terms, provisions, covenants or conditions of the Lease, and Assignor hereby consents to the granting, without notice to Assignor, by Landlord to Assignee of any waiver, indulgence or extension of time or any amendment or modification of the Lease. TO INDUCE Landlord to grant its consent as provided herein, Assignor and Assignee each hereby agrees, represents and warrants that it ha¢ no claim against Landlord with respect to the Lease and no default on the part of Landlord exists under any of the terms or conditions of the Lease. EACH of Assignor and Assignee hereby jointly and severally indemnify, defend and hold Landlord harmless from and against any and ail liability, cost and expense (including, but not limited to, reasonable attorneys' fees) arising from any claims for brokerage commissions or other compensation arising out of this assignment of Lease. ASSIGNEE acknowledges that certain Common Area Rent, Tax Rent and other obligations under the Lease may have accrued but not bean satisfied by the Assignor and that, without releasing Assignor, Landlord will also look to Assignee for the payment and performance of all obligations under the Lease. IN the event there is more than one Assignor or Assignee or both, then the obligation of the Assignor orAssignee as the case maybe, shall be joint and several: ' ~. IN WITNE~S WHEREOF, Assignor and Assignee have executed this instrument as of the 1 I` day of ')`)~h~-I'-- , 1997. ASSIGNOR: KIM CHAN Social Sicurity No.: 135-82-7982 WITNESSES TO ASSIGNOR: .~ ~,~~ • NOTARIALSEAL JAC(}UELINE K. DUKES, Notary Pubile GeriXsburp, Adams County My Commission ERpires Dot. 25,1998 1H7/97 CB T:151TE13741CHAN.0141AS5N.DDC ASSIGNEE: ~ r ZHENTI LI Social Security No.: 065-78-5775 WITNESSES TO ASSIGNEE: /G>!~ ACCEPTED AND CONSENTED T0: LANDLORD: KIMCO DEVELOPMENT OF GIANTS, INC. BY; Name' Micha .Flynn Title: WITNESSES: Acknowledgement of Assignor STATE OF ) ss: COUNTY OF ) I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ,known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this day of , 9997. t° My Commission expires: Notary Public (Notarial Seal) Acknowledgement ofAssignee STATE OF ) ~a ss: COUNTY OF ) yv~ ~ I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared z e t: ,known to me to be the individual described herein who executed the foregoi g instrument, and acknowledged that he executed the same. WITNESS my hand and official sea{ in the County and State last aforesaid this z5 day of Feb , 9997. Notary Pubiic.- (Notarial Seal) 123/s7 AMS T:451TE1~741CHAN.0141AS5N.DOC My Commission expires: raatt.mn! sen~ 7110PAA5 D. 13nEtJtJeF.q,Ut, rtolory ~ ubllc WES7 FAnrlCHE ;?cJ'I 1'tKP., 5'a1 A Comely riry•Crsrn ,9s:dc!e t?xi~iruG fi,rr; 70, y997 .~:~., EXHIBIT "A" Date of the Assignment: # February 1, 1997 Lease D_ ocuments L Lease dated as of: September 18, 1991 First Amendment to Lease dated as of: _, _January 17, 1997 Shopping Center: Giant Foods Plaza Upper Allen, PA Assignee's notice address: Assignee's telephone number: 209 Madison Street, Apt. 4C New York, NY 10002 (212) 346-9765 Landlord's notice address: 3333 New Hyde Park &~oad, Suite 100, P.O. Box 5020, New Hyde Park, NY 11042-0020. j•: 3 (/23/97 CMa T:ISITE\i741CNAN.0141ASSN.DOC ~ •~..>~ ~ ~ 1 I t ~ ~ ~ ~kewawtl 3/2vrUB r :. A;1S?J,~; ~ t Na E 7 -rn~tvrrNG u eta tio. Q¢,~ 78 Y~Iem:177A1Cfigry,p96NROMDOC ~~ ~°jit~ ~'C1Vf1W' At,•t_ 11R~1U #3YTftt~fi . • ~°d and valuable consldaraticn, the Ste' that the undersipnad Asst n ~1~cttowledped, hereby gr,.~lgns, transta rece1pt and >zufficisno g o4 tvr n~~ taHe and Jntsregt tit Assignor In ~-and at~a qutlr unto the and nipn~e~ psJ~n~ ate " °' attached heretti (~~ tease to, mnd under the taasg agreement dascribod on tibVe rind is hold unto Alai a9roament to fierain relerrnd to thtr i~tse, aub of .i pnee, ire sUaoassors anci assigns, for the batanoe or ihi Sep' tv the traaag t 1e a the •rents, aovertants, •terma, conditions pnd Oenn of r~tlnountapf~~~n~vlth the shy d~R hid by tandiord ~s ~n A8Sit3N68 ackrltnAtedgg8 dhat tit has read and reviewed the t.easa and all ami6Aiimbnta thiiPeti7; Agsipntra harvby assumes the t~rformanoe. of all of the ts~rms, anvsnantg and apntTiHons caf-the lease; by the lapse, +Assippnae hAhl<(Dy ayrvae~t0 perfort~itbAl~rj~d:z~ covenanAaofaind conditions of the tease re~utroq to be performed by the tenant •utt~gr:~ ~tttatte inCiudinp, but not ttmltpd tp, tlairtg the taustltt ,pN,phi$,tls nnly for tht~ purposeti,ypaoNtcaliy pormltted rrndar #ha .rases. PJOTHIN{i hemin oontalnod •ehait, ~ :brtwsan the tandlcrd .under titre i,easa {haeinaRer raRtrred to ac 'y„ ttndtord"t and At*a~ynor, rrtlea~, t-r ry-ltpya, or be de~msd to retaaae Ar t'odieve, Assignor ~r anyguarantor of 4H,y l~aelt~e fivm slrfy:trtitigatltlns Undor the tori-e and guaranty. Moreover, AtalgnW and t7uaraMor, tf sny, Si~till vont-hutr to ba and rentals tipbla •ander •the t6ilae.and •guaranty Jn.ttll respects tea thtluplh thls Absignmeni had ntlt boon +nad,sr, ylssignor #tsrsby waiuoQ .any and all •notioe t'ron; 9.t;ndi6l~y of default of A9siQnae under any of the •ter:mr, prxrtrlrlont, xsovenrnts yr ~aandltlgtR~ cif ttre lstsi4b, ar-d AI~(gAQf hereby aansenis to the grsutllrtp; without notloe !o Aaflgirtar? by, ta~)ord Yo. Alrsipnaa of any waiver, indulyanoe Ar zMonelon Af •time or ~y .amendment to •ar fnodifioatbn of the t_saise. TO INDUCE r.pndlord to avant tits tYrrasent ss •• Assiynaa daGh hereby ~!9raez, reprsnanta .and .wetrants•xhet~d :hp srlo~•claim aoi3al~tsdl tandlprd With rpspaot So the Leese anti no default an rife part of lanbllord axistt:.under arty of iha farms qr t:onditinns .at the tease. ~ ~. a13SIGNOR rnd Aseldnea hsmby JclnUy,and aavars~Hy~:iriatarnraify, .defend anti htlld landlord htrrmless from .and apalnet any and a)1 tiatziUty, coat and,exp~nse ~Jnoludlnq, but not IlmRed tp, rgpatlnable .>alinrneya' fees) arising from a4y.:oatlms Anr .t7nakerape Gommisslnns or other oomp@~nsgtiprt ar.Ibirtp eat of this aS;9ipnmant tsf l.rtasa, AS~i~nNLE aCktftlWlprjggtt that Csrtaln Gammon Arlsj I~trtt, ~vr tram bpd other ob1(natlans under the beams ±r+ity .hayd arotuad but awl ~irtrl aat4a(lraal }ty ttu Assignor and that, without releasUtg Aaritprtpr, Landlord wul alga ta4k tv Ast:.ipnstr for thr payment and.pr;rfvrmanna ofi all obllgat)gn; uns#yr.#hg.t.gapp; 1N fhb-avant there ie more thaty gnq .Aaltiynor nr AaM)Qiwrp or bnIh, than tltp Gbiiiiatltln of the Assignors or Assiknbas ar the oaae.may ba, shall ~ joint I aavvral. IN W-TNESS WHEFtEOp, Aspl$r1~,~:: ar,d Msien~ #~Ay$ executep flats instrument efrertlva as or the datb of the Aeaignm A331GNOR:• Wl~'Nr$5E9 70 A~~jpNQR _ ~ .., ~.....F ASSIGNEE: NG SHE G ZHENG 55 No. 155-88-6902 ACCEPTED AND CONSENTED TO: LANDLORD: KIMCO DEVELOPMENT OF ~~ GIANTS, INC, By ame: tchaet I. R ' le: Presid WITNESSES TO ASSIGNEE WITNESSES TO LANDLORD: STATE OF ) ss: COUNTY OF ) I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZHEN7ING LI, known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. , WITNESS ~ y and a d fficial seat in the County and State last aforesaid this ,~ day of , 1999. Notary Public (Notarial Seal) My Commissio Notarial Seal Caroline Lai, Notary Public Lower Allen Twp., Cumbedand County My commission E~ires Oct. e, 2001 Member, Pennsylvania Association of Notaries Acknowledgement of Assignee STATE OF ) ss: COUNTY OF ) I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZHENG SHENG ZHENG, known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. WITNES hand a d official seal in the County and State last aforesaid this day of , 1999. Notary public (Notarial Seal) .~ My Commission expires: Notarial Seal Caroline Lai, Notary Public LowerAllen Twp.. Cumbedand Counly My Commiaelon Expires Oct. 8, 200 Member, Pennsylvania Association of Notades T;ISITE1374lCtigN.0i4\asgn.doc as 3/1/99 ,.~~~ rr~ ~ ~. EXHIBIT "A" Effective Date of the Assignment: March 1, 1999. Lease Documents Lease dated as of September 18, 1991. Letter Agreement dated as of September 18, 1991. First Amendment to Lease dated as of January 17, 1997. Assignment and Assumption of Lease dated as of February 1;1997. Second Amendment to Lease dated as of February 26, 1999. C Shopping Center: Giant Foods Plaza Gettysburg Poke & US 15 Upper Allen, PA 17055 Assignee's notice address: Assignee's telephone number. Landlord's notice address: T:ISITE13741CHAN.0141ASGN.DOC Zheng Sheng Zheng 371 Broome Street, #28 New York, NY 10013 (717)766-1334 3333 New Hyde Park Road, Suite 100 P.O. Box 5020 New Hyde Park, NY 11042-0020. 3 3/17/9 as FIRST AMENDMENT TO LEASE J TENANT CODE: 374-014 THIS FIRST AMENDMENT TO LEASE made as of thel7th day of January, 1997 by and between KIMCO DEVELOPMENT OF GIANTS, INC. (hereinafter referred to as "Landlord's and KIM CHAN (hereinafter referred to as 'Tenant'); which terms "Landlord" and "Tenant" shall include the successors and assigns of the respective parties. WITNESSETIi: WHEREAS, by Lease Agreement dated September 18, 1991, Landlord did lease and demise unto Tenant certain premises therein more particularly described in a shopping center at Upper Allen, Pennsylvania.' WHEREAS, the parties hereto desire to amend the Lease. NOW, THEREFORE, in consideration of the premises and the sum of Ten and no/100 ($10.00) Dollars and other good and valuable oonsideration, in hand, paid by Tenant to Landlord, the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows: 1. The term of the Lease is hereby extended for an additional period of two (2) years so that the term of the Lease shall now expire on September 30, 2001 (the "Expiration Date"). Tenant agrees and acknowledges that there are no options to extend the term of the Lease beyond the Expiration Date. 2. Commencing October 1, 1999, and continuing through and including September 30, 2001, the annual Base Rent payable by Tenant to Landlord shall be as follows: MONTHLY LEASE YEAR ANNUAL BASE RENT INSTALLMENT 10/1/99 - 9/30/00 $18,690.00 ~ $1,557.50 10/1/00 - 9/30/01 $19,440.00 $1,620.00 3. Tenant's address for notice purposes is: 209 Madison Street, Apt. 4C, New York, NY 10002 and Landlord's address for notice purposes is 3333 New Hyde Park Road, Suite 100, P.O. Box 5020, New Hyde Park, NY 11042-0020. 4. It is mutually understood and agreed that the Lease shall be and remain in full force and effect, except as same is specifically modified and amended hereby. 5. Tenant acknowledges that, to Tenants knowledge, no default exists on the part of landlord under the Lease as of the date hereof. 6. In the event of a discrepancy between the Lease and this Amendment, this Amendment shall prevail. IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument as of the day and year first above written. LANDLORD: KIMCO DEVELOPMENT OF GIANTS, INC. By: Na . Tit : Mic 17. Flynn res~ WITNESSES: IiLU~~t'ue . ~:B,G~C~ ,LEASING 7 LEGAL . CONSI: 1!17/97 CMB T:W"1TE13741CHAN.014115TAbffiND.DOC <.._% TENANT: KIM CHAN Sociai Security No,/7 WITNESSES: C-~. t3.~`-~2 ` " - 1 ~~' NO7ARIALSEAL JACQUELINE K. DUKES, NotarytytyPUblic ~~~ My Commisston Fxpir ssOctu25, i 999 INDIVIDUAL ACKNOWLEDGEMENT FOR TENANT: STATE OF ) ?.,..,~-",,~~~t~...~ t-- ss; ~~JJ COUNTY OF 1 ,-~ c( ~-, I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared KIM CHANG known to me to be the individual described herein who executed the foregoing instrument, and acknowledged that he executed the same. WITNESS my hand and official seal in the County and State last aforesaid this -3 day of ~iQ.~.a-F~ , 1997, I" Notary Public (Notarial Seal) My Commission expires: No7ARIALSEAL JACQUELINE K. DUKES, Notary Public Gettysburg, Adams County My Commissinn Expires Ort _25, 7999 1/I7/97 C1.4B T:151TE13941CHAN.0141ISTAMEND.DOC e :,',~ .~ SECOND AMENDMENT TO LEASE TENANT CODE: 374-014 'LEASINt9 LEQAL CON5T. THIS SECOND AMENDMENT TO LEASE made as of the 26th day of February, 1999, by and between KIMCO DEVELOPMENT OF GIANTS, INC. (hereinafter referred to as "Landlord") and ZHENTING LI (hereinafter referred to as 'Tenant"), which terms "Landlord" and "Tenant' shall include the successors and assigns of the respective parties; WITNESSETH: WHEREAS, by Lease Agreement dated as of September 18, 1991, Landlord did lease and demise unto Kim Chan certain premises therein more particularly described in a shopping center at Upper Allen, Pennsylvania; and WHEREAS, bX Letter Agreement dated September 18, 1991, Landlord and Kim Chan did agree to certain modifications of the Lease Agreement therein more particularly described. particularly described; and WHEREAS, by First Amendment to Lease dated as of January 17, 1997, Landlord and Kim Chan did agree to certain modifications of the Lease Agreement therein more WHEREAS, by•Assignment and Assumption of Lease dated as of February 1, 1997, Kim Chan assigned her interest in and to the Lease Agreement to Tenant (said Lease Agreement as amended and assigned hereinafter referred to as the "Lease"). s WHEREAS, the parties hereto desire to further amend the Lease. NOW, THEREFORE, in consideration of the premises and the sum of Ten and no/100 ($1 D,00) Dollars and~other good and valuable considerations, in hand, paid by Tenant to Landlord, the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows: 1. The term of the Lease is hereby extended for an additional period of five (5) years so that the term of the,Lease.shall now expire on•September 30, 2006 (the "Expiration Date"). Tenant agrees and acknowledges that there are no options to extend the term of the Lease beyond the Expiratian Date. . " 2. Commencirig October 1, 2001 and continuing through and including September 30, 2006, the annual Base Rent shall be as follows: J LEASE YEAR ANNUAL SA E RENT MONTHLY INSTALLMENT 10/1/2001-9/30/2002 , $'16,685,00 ' ~ ' '~ $1 388.75 10/1/2002-9/30/2003 ~ $17505.00 $1 458.75 10/1/2003-9/30/2004 - $18 375.00 $1 51.25 10/1/2004-9/30/2005 $19,290.00 $1607.50 10/1!2005-9!30!2006 $20 265.00" $1 6 8.75 3. Tenant's address for notice purposes is: 210 East Portland Street, Mechanicsburg, Pennsylvania 17055; and Landlord's address for notice purposes is 3333 New Hyde Park Road, Suite 100, p:O:~Biiz 50Yb~ 1Vew HyB~ Park, N$ 11042=0020. .. 4. It is mutually understood and agreed that~the Lease shall be and remain in full force and effect, except as the same is specifca{ly..•modified. and amended hereby, and Landlord and Tenant hereby'1'atify ~arid`corifirm tie Ce'as~e ~as~ amehded hereby. Without limitation of the foregoing, Landlord hereby, confirms its, granting, of the Leased Premises to Tenant, and Tenant hereby confirms Its acceptance of {lie. Leased Premises on•all of the terms and conditions of the Lease as hereby amended.. ~ ' . . r T:ISITE0741CHAN,01412NDAMEND.DOC l y ~vsQU~ `0 1 . , .. , _ 3/19/9 as f .. t ~ ., 5. Tenant acknowledges that, to Tenant's knowledge, no default exists on the part of Landlord under the Lease as of the date hereof. •• 6. In the event of a discrepancy between the Lease and this Amendment, this Amendment shall prevail. 7, if not defined herein, all capitalized terms used in this document shall have the meaning ascribed to them in the Lease unless the context otherwise requires. IN WITNESS WHEREOF, the Landlord and Tenant have executed this instrument as of the day and year first above written. LANDLORD: KIMCO DEVELOPMENT OF IAIITNESSES:.. . fBGI`~ GIANTS, INC. ~ ~ ~' ... -~ v _ . sy: Na e: ~ =~~ T• e: ichael J. Flynn .:. President TENANT: ~_ ZHENT NGNG L Soc. Sec. No. 065-78-5775 INDIVIDUAL ACKNOWLEDGMENT ~ FOR TENANT: STATE OF ) ss: COUNTY OF ) •~ ' ' I HEREBY CERTIFY that on this day, before me, a Notary Public in and for the jurisdiction aforesaid, personally appeared ZFIENTIIJG LI, known to me to be the individual described herein who executed the foregoing instrument,.and acknowledged that he executed the same. WITNESS y and a fficial seal `iri the County and State last aforesaid this day of , i 999: My Commission expires: Notary Public (Notarial Seai) Nolarial5eal CaroAne Lai, Notary Public LowerAllenTwp.,CumberlandCouniy My Commrsaion Expires Oct: 8, 2o0f Merrilter, nnsytyania Assopation of Notaries A /' T:\S ITEl3 74\CHAN.01412NDAMEND.DOC 2 3/19/9 as ;~~~ WITNESSES: 2 3 4 5 10 11 12 13 16 17 16 19 20 21 22 23 25 26 27 29 31 32 33 w , ,~ Constr ' SHOPPING CENTER LEASE l SITE NO.: 374 - Store 05 LANDLORD: KIMCO DEVELOPMENT OF GIANTS, INC. TENANT: KrM cxnN 129 Gettysburg Pike LOCATION: Mechanicsburg, PA 17053 DATED AS OF: September 18, 1991 1. Leased Premises 1. Landlord leases to Tenant, and Tenant teases from Landlord, the Leased Premises shown on attached Exhibit "A", which for all ppurposes shall be deemed to contain 1 , 5 0 0 square feet of space (the "Floor Area"} in the Shopping Center shown thereon. 2. Lease Tern 2. •The term•af chi's •l ease ("Lease Term") and•~Tsnant~~s ob'H ation to•pa .Rent-shall commence October 1, 1991. ---- =------- is..~fiw..rwww~' ' The Lease Term shall expire without prior notice on Septembet 30, 1999. ------------------------------ Nhen the commencement date has occurred, and if Landlord' so requests, Tenant shall deliver to Landlord a statement' in recordable form specifying the commencement and expiration dates; said statement will be a part of this lease. 3.Base Rent 3. Tenant agrees to pay Landlord Base Rent as follows: LEASE YEAR ANNUAL BASE RENT MONTHLY INSTALLMENT 1 12,750.00 1,062.50 2 13,387.50 1,115.63 3 14,056.87 ~ 1,171.41 4 14,759.71 1,229.96 5 15,497.69 1,291.47 6 16,272.57 1,356.05 7 17,086.19 1,423.85 8 17,940.49 1,495.04 Base Rent shall be paid monthl in advance on the first day of each calendar month during the Lease Term. If the commencement date is not the first of the month, the Base Rent for that month shall be prorated. Tenant agrees to pay all Base Rent and other Rent to Landlord or its designated agent without the necessity of Landlord making any prior demand and without Tenant making any counterclaim, defenses deduction or offset. The obligation to pay Base Rent and other Rent is an independent, unconditional covenant. Rent shalt be sent to the address Landlord designotes. If Tenant's check for any Rent payment is not honored any time by Tenant's bank, Landlord may demand all payments by certified check thereafter; and Tenant shall be liable to Landlord for any bank charges incurred by Landlord. All other payments to be made by Tenant pursuant to this lease are in addition to Base Rent. 4. Percentage Rent 34 Cease Year Defined 35 (B) "Lease Year" is defined as follows: the first Lease Year shall commence on the 36 commencement date of the Lease Term and end at the close of the twelfth full calendar month 37 following the commencement date.. Each succeeding Lease Year shall be the period of each 12 lull 38 calendar months following s uccessively thereafter except if the last Lease Year is a lesser period 39 for any reason. l0 6ross Sales it ~ (C) (1j "~ '- ' - '~ ~ ie phrase "Gross Sales" for each Lease Year means 12 the aggregate of the prices. charged for all merchandise and services sold or leased in or from the 13 leased Premises during that Lease Year, whether by Tenant or by any other person, and whether sold 14 on credit or paid for by the customer by cash, check or otherwise, and whether the merchandise is 15 delivered or the services rendered from the Leased Premises or elsewhere, including {without 16 limitation) sales at the leased Premises across the counter, telephone or mail orders, sales from 17 mechanical devices or vending machines, and deposits not refunded to customers, and la away sales; 18 except that the following shall not be included as Gross Sales, or if previously included in any 19 Lease Year, may be deducted subsequently from Gross Sales reported for such Lease Year: (i) refunds .D or credits to customers, and (ii) retail sales taxes charged specifically and separately as such to l customers and paid by Tenant to the toxinp authority. Under no circumstances shall there be any 2 deduction from Gross Sales by reason of Tenant's beeng liable to Qay any franchise tax, capital 3 stock tax, income tax or similar or dissimilar tax based upon Tenant s gross receipts, gross or net 4 income, capital structure, or profits. The prices charged shaTT be inciuded in Gross Sales on 5 delivery to or the la ing away of the merchandise for the customers or on the rendering of the 6 service. The risk andY expense of non-collection for bad debts or for granting credit shall be on 7 Tenant. -1- Initial Ner ; Landlord' -I'~ Tenant 'iL- ; 25 26 2i' 28 29 ent (~ ~ %) (the "Rate"~ of the amo excee $ jthe Gross Sales Sales Bas all be re uce proportionately calendar moot in which the aggregate Bas amount to be paid s 'fled in Section 3 here. each Cease Year on the day of that mor Sales exceeds the Gross Sale a for the th month remaining in that Lease a based on to the monthly Base Rent) the additi Per each monthly Gross Sales statement. lln r statement there shall be made, if warranted and reliably a difference from the cumulative Tenant, with pa ment to or repayment by Landl shall receive the exact amount of Percentage It is agreed that, if for any reason, the use expressly permitted pursuant to Article Gross Sales Base figure and the Rate figure res as are in Landlord's sold and absolute to which tae Leased Premises, are being put. 5. Taxes; 5. (A) The word "Taxes" shall mean sessments (including for sewers, roads cluding connection or hookup charges bi asured by meter directly and indtvidua 1 d ppermit fees; charges for any public or dition all other governmental imposit xtraordinary as well as ordinary, foresee y of which of the foregoing during the L tidings or other improvements (or any p posed in connection xttA the use eccupa other improvements (or any portion); an the rents receivable by Landlord from nflar taxes, and all interest on Tax icludin attorney's and other expert's fi tes wi~h the public authorities (reg lotiationl. If any method of taxation p a substitute for the whole or any pa `ferent kind of tax, the different tax -2- :Rent Nrw. ~+hich the that 1 co an able no , i th is less than twelve Year is less than the to pa Percentage Rent ows the month in which hereafter, for each succ Tenant shall pay (in ad same time as Tenant fur certified annual Gross ement showing more accu Ijustment between Landlo ire; to the end that la'. Year shall be a separal and Gross Sales of anv ude: all real estate taxes; special and general betterments), water and sewer rents and charges ling water ar sewer charges based on consumption, payable by another Tenantl governmental license easements enefitting the Shopping Center; and in charges of every kind and nature whatsoever foreseen)) and each and every installment thereof, x are eifher a lien on the Shopping Center lands, or which are charged, levied or assessed one or issession of the Shopping Center lands, buildings 911 taxes license fees or other charges measured lying Center, and occupancy taxes, rent taxes or ant payments and all costs, expenses and fees rred by Landlord in contesting and/or negotiating of the outcome of any such contestation or ~ on the date of this tease shalt be altered, so :al estate taxes there is levied or assessed a deemed included in "Taxes". However, 'Taxes" Initial Her ; Landlord' , Tenant ; ,~.~-~. 1 ~ shall not include any inheritance, estate, succession, transfer gift, franchise or corporation tax 2 or any net, income tax, profit tax or capital tax levied imposed on Landlord. A copy of an official 3 tax bill with respect to a governmental tax or assessment shall be conclusive evidence of the amount 4 of a Tax. If the Leased premises is located in Tndiana Ohio, Illinois or any other jurisdiction 5 wherein taxes are accrued or become a lien but are billet or payable afterwards in arrears, then so 6 long as they are or become payable during the tease Term, such taxes shalt be included in the 1 definition of "Taxes" shared in or payable by Tenant acrnrding to the provisions of this Article 8 even though the payment thereof relates to a fiscal tax period in whole or in part occurring prior 9 to the commencement of the Lease Term. 0 Tax Rent 1 (B) As additional rent (herein called "Tax Rent"), Tenant agrees to pay to Landlord, its 2 share off the Taxes by paying on the first day of each month in advance, 1/12th of the product 3 obtained by multiplying the a negate amount of all Taxes payable by Landlord for the then current 4 calendar year by a fraction, o~which the numerator is the Floor Area of the Leased Premises and the 5 denominator is the .total square feet ground floor area which is leasable for sppace (on the first day 6 of the month in question) inside all the buildings of the Shopping Center. If at any time prior to ~ the date Taxes are pa able by Landlord it is determined byy Landlord that the estimated Tax Rent B payments made by Tenant shall be insufficient for Landlord to have in hand on the said Tax pa ment 9 date the full amount of Tax Rent actually due from Tenant, then Tenant within 10 days after notice, l shall deposit with Landlord the full amount necessary in order to enab~e Landlord to have in hand by ~ said Tax payment date the total Tax Rent. If after the end of a calendar year (or other accounting period used by Landlord) the total of the monthly payments (and, if' applicable, the aforesaid l ..deficiency payments) made by Tenant for the yyear has exceeded or is less than the annual Tax Rent 1' actually due; then'prromptly an adju3tinent sh5li tte'iMade between Landlord'end Tenant with aRpropriate i yayments to or repayment by Landlord, as the case may be. .If the amount of any Taxes payable during i the current ear shall not yet have been billed by the taxing authoritq, the monthly Tax Rent then r payable sha1~ be based on the amount of the corresponding Taxes for the immediately preceding Tax t year plus 64 of said amount subject to immediate adjustment (and payment of the ad usted amount by ~ Tenant) when such Taxes shall be billed or determined. Tenant's estimated monthly ~ax Rent for the 1 first calendar year or balance of the first calendar year if the Lease Term starts on other than January 1st shall not be less than g er month. For an portion of a calendar month at the beginning of the Lease Term, Te~an~'s Tax Rent shall be proratedyfor that month. 33 Other Taxes 34 (C) In addition to sharing in Taxes by paying Tax Rent, Tenant agrees to pay in the entirety 35 all Taxes attributable to its signs and to its other personal propert9y and to its leasehold 36 interest; all Taxes allocable or attributable to any improvements made by Tenant to the Leased 37 Premises; and also any occupancy tax or other tax on its right to occupy the premises; and also all 38 Taxes on its Rent (including sales taxes on rents if the Leased Premises is to Florida or any other 39 jurisdiction imposing the same or similar tax do rents) and other payments imposed on tenants 4D generally. Upon Landlord's demand, Tenant shalt furnish proof of payment of all such Taxes. 41 Additional Rent 42 (D) In addition to the Base Rent, all other payments required to be made by Tenant (including 43 but no{t limited to aRwrrln::g~ ^^^' Tax Rent Common Area Rent) shall be deemed to be additional 44 rent and included in the term "Rentz' wherever used even though not ex8ressly so designated. Unless 45 another time is expressiy provided for the payment of additional rent, it shall be due. and payable 46 on demand or together, witfi the next installment of Base Rent, whichever first occurs. Landlord 47 shall have the same ri hts and remedies for non-payment of any additional rent or for not posting 48 with Landlord any Secur~ty Deposit as for anon-payment of the Base Rent. 49 Late Rent 50 (E) Any Rent or Security Deposit not paid when due shall bear interest on the payable amount 51 from thhe date when due until paid at the annual maximum rate of interest permitted by law; and in 52 addition, Tenant agrees to pay Landlord a j50.00 late charge for each overdue payment. 6. Securit DeFF 6.. (A) Landlord acknowledges receipt ~if 7 security of the sum of$2,545.00 Dollars as performance and observance of this lease on the par or defaults under any other lease or agreement bet Landlord, Landlord may, without prejudice to any i or any portion thereof towards the curing of such loss or damage arising from such default. Upon expiration of this lease, if Tenant shall not the the unapplied balance of the Security, Deposit shat applies any part or all of the Security Deposit, 1 amount so applied, which shall become Part of the hand the full original Security Deposit plus such interest in this lease shall be transferred and th Security Deposit (or the unapplied balance thei released from any and all liability with respect i it being understood that Tenant shall thereafter 1 Tenant shall not mortgage, assign or encumber its to do so shall be void. Upon any transfer byy Ten Deposit and Tenant's interest therein shall be tr bankruptcy, reorganization or other similar proceed -first to payment of unpaid Rent for all peri (B) Tenant agrees that notwithstanding any any Rent, Tenant shall continue to pay Landlord fai and additional rent accruing during the continuan Tenant to make such pa merits of Rent shall preclude claim or offset in tfie legal action and shall be Tenant's rigght to interpose such defense, counter Tenant heretiy consents to the entry of an order in make Rent payments during the pendency of the law Tenant may assert. Upon Tenant's failure to coot other charges, Landlord in any such instance, in a may send•Tenant a notice terminating this lease and days' prior notice, and if Tenant does not make alt period then automatically and without any further shall terminate and expire with the same force and -3- as the or ari affiliate lards compensating Landlortl for any up of the Leased Premises at the t or otherwise liable to Landlord o Tenant. If at any time Landlord d, shall pay to Landlord twice the it, so that Landlord shall have on punts at all times. If Landlord's turns over to its transferee said ereafter the transferor shalt be I Deposit or its return to Tenant, h transferee with respect thereto. Security Deposit, and any attemyt !rest in this lease, said Security ie assinnee. In case of Tenant's ned automatically'to 'constitute a waiver of i or offset in any legal action. Further, court action by Landlord requiring Tenant to despite any defense, offset or counterclaim to ppay the amount of the accruing Rent and on to all other remedies landlord may have it's leasehold estate forthwith upon five (5~ uch pa merits within said five (5) day notice e to Tenant, this lease and the Cease Term t as if the end of said five (5) day period Initial Nere -; ;Landlord' ' ' Tenant ~ ~~....F ! was the original stated date set forth in this lease as the expiration of the Lease Term but Tenant 2 shall remain liable to Landlord as provided in Article ]5 hereof, and Tenant shall forthwith vacate 3 and surrender the Leased Premises i n good order and condition, broom clean and in accordance with the 4 provisions of this lease, and in default of doing so; Landlord shall have the right to Summary 5 proceeding, eviction and all the other remedies against Tenant as a wrongful holdover Tenant. 7. Const 7. 1f Tenant enters the Leas that Rent may not 6e yet payab' used by it and agrees to defy arises out of Tenant's possess Landlord with the insurance ref and during that period all of stated herein) the obligation including installation of an andlord's prior written approv and Tenant agrees to complete oromotiv. Prior to operating on, use or oco rred to in Arti •r provisions o to pav Rent. is local government agency Naving juris~ work performed by or on behalf of T; with the precedingg part of this sent that throughout the entire Lease Ter it shall, at its sole expense, in dt or ebnducting 'business at' the Lease• building codes and/or fire codes apps occupancy or business operations, i maintenance, upgrading, repair or r~ :t 57 and Premises• Lease 1'i eofj as is appropriai k, and fully staff ai tartness Tenant aggr. it local'.equivalent) ction) for the Leased int and forward eopie :e shall constitute a and during all times ig aqv work or making 'emises ~zomply. with-a :able in whole or in I lading but not limn Iacement of sprinkles from all losses, t n has commenced, then notwithstanding d Tenant shall pay for all utilities I harmless from ail liability which at period; and Tenant shall provide and the indemnity in Article !!(A) all apply, except (unless otherwise to fixture and do all other work Ign above its entrance, subject to order to ready the Leased Premises; ock its store and open for business at its sole expense, to obtain a i the building department (or other nlses and final lien waivers for all ireof to Landlord; failure to comply rigs default. Tenant further agrees nt is occupying the Leased Premises, installations or using or occupvino 'f to the Leased Premises or its use or i to such as relate to installation, systems; and Tenant agrees to defend rages, claims, _liabih ties, costs- an~ on of the Leased Premises is delivered to Tenant, and Landlord is not oDliga er the Leases Premises or the Shopping Center to make any improve tions, do any work, make any alterations, repairs or replacements, clean obtain any permits, licenses or governmental approvals, or spend any mono n possession or to permit Tenant to open for business, unless landlord ha! do aqy work, in which case such work shall 6e limited to the provisions work Exhibit signed by Landlord, which, work shall be deemed completed t shall so certify. Aii work other than that to be performed initials by L accomplished 6 Tenant. Unless specifically stated otherwise in tXis le; hat Landlord stYall have tendered possession of the Leased Premises to Ter plate execution of this lease by both landlord and Tenant. All alteratioi and improvements made 6y Tenant to the Leased Premises and al itioninn units. eouipment and aooaratus at the Leased Premises and other i lights- toilet fixtures, partitions, doors and utifities except signs, counters i removable trade fixtures installed by Tenant at Tenant's expense originally are ant when made or installed be deemed to have attached to the freehold and become Lands provided, however, if landlord so directs prior to termination of this lease or thereafter, Tenant shalt pramptiy remove the additions, ,improvements fixtures s trade fixtures and installations placed in the Leased Premises by Tenant and shall re occasioned by such removal and restore the damaged part of the Leased Premises to and in default thereof, Landlord may effect said removals, repairs and restorati expense. 8. Common Area 8. (A) Common Area' is hereby defined as all 7. of the SShopping Center (or of any other land or pri safety benefit or convenience of tenants and their includ;ng as illustrations (and not in limitation): z sidewalks and curbs; entrances and exits from the areas, trees, shrubs and other landscaping; meter n rear of, around or elsewhere located in the Shopp parking .area or other areas outside individual stores and sprinkler risers serving any buildfnggs• cesspool conduits and the connections thereto locatet• outside and downs outs and the exterior of outside wall (but implying hat Tenant has a right to,use the roof or 1 and pylons and sign panels to identify the Shopping facilities of the Shopping Center that are made oval and others. (6) Subject to the following subparagraph "~( Tenant and its employees, agents, and customers she 1 use or benefit of the Common Area to the extent and i and permitted by this lease. to keep all s , areas, equipment, ~loyees, subtenants bll parking areas, drivew scent streets; traff outside individual Center; lighting fa ii•inkler system servii sewers, lift station vidual stores; the er lading storefronts) o~, outside walls); direr er; and other areas, e for the common use aggreed in this of forth on an rhen Landlord's idiord, if art .e, it shall ybe int immediately s, decorations heating and xtures such as alarm systems, r other easily shall at once rrd's property; within 30 days gns, counters, lair any damage food condition; m at Tenant's sties and services Landlord) for the Hers and invitees, truck serviceways, slands, landscaped s: fencing at the Iscaped areas e D1Pes, and ar or s pmenu benefit " and so long as Tenant is not in default, have the right, in common with others to the the manner reasonably designated by (andlord right at any time and from time to time to change or reduce or add set forth in Article 9(C) (wherein Tenant agrees, among other rvice areas and load in docks adjacent to the front and rear of the nd to keep same free o~ ice, snow and trash), all Common Area shall ommon Area shall. 6e under the exclusive control and management of rt parking area lights are kept on). Landlord may establish, and rules and regulations with respect to the Common Area on a as -discriminatory basis. Terient agrees it and its officers and em 1o ees will park their vehicles y ih areas Landlord designates for employee parking, and if after orie violation notice a lotion reoccurs by Tenant, its officers or amp oyees parking their vehicles in other than the to ee parking areas, Landlord shall have the right to tow off any vehicle parked in violation at ant's expense or to levy an assessment against Tenant of 540.00 per day for each such vehicle. no time shall Tenant permit trucks or delivery vehicles used by it to be parked in the Common _q_ Initial Ne ~' Landlord' / ; TenantT/'~ 1 Area except where permitted by 'landlord. Landlord shall have the right to ,impo$e ,and enforce 2°' ' parking charges by meter or otherwise. Landlord may close any part of the Common Area for such time 3 as is necessary to its opinion to prevent a dedication thereof or accrual of rights in any person, 4 or in order to discourage non-customer parking. Under no circumstances shall Landlord be obligated 5 although it may do so at its option) to keep the Common Area illuminated to any extent after 9:30 6 P.H. or on any Sunday or legal holiday. 7 Comaon Area Rent ' 8 {D) In the manner hereinafter described, Tenant agrees to pay annuall its share of Yearly 9 Common Area Costs. On the first day of each month in advance Tenant agrees ~o pay to Landlord, as 0 additional rent (herein called "Common Area Rent") 1/12th of tenant's annual proportionate share of 1 Landlord's estimated "Yearly Common Area Costs" (hereinafter defined), based on Landlord's 2 estimates. Tenant's annual proportionate share shall be determined by multiplying the Yearly Common 3 Area Costs by a fraction, of which the numerator is the Floor Area of the. Leased Premises and the 4 denominator is the total quare feet round floor area which is leasable for space (on the first day 5 of the month in question inside aliq the buildings in the Shopping Center. Tenant's Conmron Area 5 Rent for the first Galen ar year or balance of the first calendar Year if the Lease Term does not rt on th at E ender) na in relating. to: sweeping,, q; premiums for all t 0 ms less than 5123,75 per monl e Term Te an s Common Area Rent sts" s(iall mean all costs and. e: teriod selected 6y Landlord .at it Shopping Center. for repair. ret ,. of a i i as tion : or and and tt~ie the 31 (Landlord shad have absolute discretion as to the types of coverage and the limif of e5eh policy); 32 repairs, replacements, line painting, filling potholes, controllt„ng, 'reducing, treating or 33 eliminating puddjing or flooding, resurfacing and maintenance of affil parking .areas, sidewalks ant 34 the like; Itghang of areas (tncludtn electric cost and maintena~ee, repair or replacement of 35 fixtures, poles and replacement of bulbs); all materials and supplies; torn water' and sewage 36 drainage and sanitary control; operating, repairing and replacing', sewage treatment ;plant,, lift 37 station and attendant facilities; repairs, replacements and maintenance of the .entire sprinkler 38 system serving landscaped areas or servicing any building, includfng i,b leased areas; depreciation 39 of property owned or rental paid for maintenance machinery and eguigmeht and payments for personal 40 property taxes payable thereon; personal property taxes (or other taxes, howsoever denominated) 41 ayable by Landlord for any Shopping Center pylon signs,. equipment or other facilities upon the 42 Common Area; real estate taxes assessed against lands other t ah Sho pi',ng Center lands (b'ut only if 43 such non-Shopping Center lands constitute "Common Area°1; compensa>Pion to ppersonnel to implement 44 services, direct parking or to police the Common Area; p'us 8nnually las additional rent an amount 45 added thereto equal to fifteen percent of all of the Yearly Common br,~ea Costs as a fixed fee for 46 Landlord's administrative and overhead expenses. Landlo'rdlmay cause any services such as sweep ing , 47 snow removal repairs, etc. to be provided by independent contractors,' and the fees paid shall 6e 48 part of Year{y Common Area Costs. 49 (F) Within a reasonable time after the end of each accounting period used by Landlord, 50 Landlord shall furnish an annual statement in reasonable detail of the actual Yearly Common Area 51 Costs. If the said statement shows that the aggregate of Tenant's mtpnthly,char es previously paid 52 by Tenant during such year (based on Landlord's advance estimate) was less than Tenant's Common Area 53 Rent payable, Tenant shall pay the balance due to Landlord within ten da s after receipt of said 54 statement; and if the statement shows that the agggregate ppreJiously,paidY by Tenant exceeded the 55 Common Area Rent payable, Landlord with said statement, 'shall at its option, either refund the 56 excess to Tenant or credit Tenant for the amount against the next accruing Common Area Rent. Each 51 annual statement of Yearly Common Area Costs by Landlord shall bear ;a cCrtificate of Landlord's 58 chief accounting officer, and said statement shall be conclusive on Tenant. In any event, Tenant's 59 monthly Common Area Rent shall never be less than $ 12 3.7 5 per month. 60 9. Use of Premises 61 9. (A) Tenant agrees that the Leased Premises will 6e used and occupied only for the following 62 retail purpose and no other: THE OPERATION OF A RESTATJRANT SERVING CHINESE FOOD. TENANT IS SPECIFICALLY PROHIBITED FROM SELLING ALCOHOLIC BEVERAGES AT THE LEASED PREMISES. 63 Ro sale or dispensing of lottery or other gaming tickets-shall be permitted without Landlord's prior 65 consent. 66 m, neither enact nor any slot holder owning more than ten percent of Tenant if Te a 67 corpora any person, corporation, partnership, trust, other firm or entity n rots or 68 is controlled y tr is under common control with Tenant, nor any sub~,'itr~i~Tenant nor any 69 business organization a with Tenant (including, but not To any so-called "parent 70 company" of Tenant) nor any gu of this lease will y or indirectly sell from any 71 other premises within a radius of thre of ed Premises any merchandise or services 72 which Tenant is ermitted to sell in the L In addition to, and not in exclusion of 73 any remedy available to Landlord ac of the ~ in the preceding sentence and a~ 74 Landlord's option, Tenant' ase Rent shall be increase and one-half of ail of the 75 "Gross Sales' (as in this lease) realized in ar from such oche s shall be added to 76 the Gross the Leased Premises for the pdrppoose of computing the ercen under this 77 1 the same effect as though such other Gross.5ales had actually been reap the' 78 5 Initial Here ; Landlord' ~' Tenant_ ~ ,, ~~~ -_.,;~ ..}, iL{ -~iii~_c (I:L?L~,i~ti~~ ~:c IO'c'i• ~n~ ' • I ' Ousiness Operations 2 (C) Tenant agrees that: the Leased Premises will be kept open and operated continuously for 3 business Burin all of the regular business hdurs of the Shoppin Center each day but in any case 4 from ch day for at least six days a week and that Tenant will operate its business 5 therein wit i igence and in a manner calculated to produce maximum Gross Sales, fully staffed and 6 stacked; no auction fire, bankruptcy, going out of business or similar sale will 6e conducted or 7 advertised; no merchandise will be kept, displayed or•sold or business solicited in the Shopping 8 Center outside of the Leased Premises (whether by vend>.ng machines or otherwise); no nuisance will 9 be permitted, nothing shall be done which is unlawful, improper, noisy or offensive, or contrary to 10 any, law, ordinance, regulation or requirement of any public authority or insurance inspection or Il rating bureau or similar organization, or which may be injurious to or adversely affect the quality 12 of the Leased Premises or the Shopping Center no Part of the Leased Premises (especially the 13 electric and plumbing systems, the floor and walls) will be overloaded, damaged or defaced, no holes 14 will be drilled in the stone or brickwork or in concrete; no emission of any objectionable odor or 15 sounds will be permitted. Tenant will procure all .licenses and permits required for the use or 16 occupancy of• Leased Premises and the business being conducted therein; the storefront show windows 17 and signs will be repaired, kept clean, in good condition and lighted; all merchandise and other 18 property will be'dellvered to or removed from the Leased Premises only by the rear entrance; all 14 garbage waste and refuse will be stored inside the Leased Premises 1n neat containers and 20 regulartiy removed at Tenant's expense and at Landlord's option only by the contractor designated by 21 Landlord provided his price is competitivei Tenant will cooperate with Landlord and with other 22 .tenants of the Shopping Center in promotions and advertising, and will become and remain a 23 dues-pa ing member of any Merchants' Association (or similar organization) of which fifty percent or 24 more ofythe tenants of the Shopping Center are members; or alternatively will become a participant 25 of and shall pay 'its prorata share (based on Tenant's relative store size) of any expenses incurred 26 by a Nark etinq or Promotion Fund program now or hereafter established by Landlord. If at any time Z7 the Leased premises are closed (other than a temporary closing for repairs, alterations or 28 - renovations) for a period ,longer than 90 consecutive •days;~ tand}ord may,-at i.ts•~~option aad ir. 29 addition to all other remedies available to Landlord hereunder, by law or in equityy declare Tenant 30 in default of this lease, cancel and terminate this lease, ono avail itself of~ all rights and 31 remedies set forth in Article 15 hereof or as otherwise made available to Landlord by laa. Tenant 32 further agrees that it shall throwgbout the Lease Term comply with and observe the provisions of the 33 Federal Comprehensive Environmental Response Compensation and Liability Act• of 1980 (as the same 34 may be amended from time to time) and of all' environmental statutes, regulations or ordinances now 35 or hereinafter enacted by the Federal Government and/or the State or Municipality wherein the Leased 36 Premises are situated; and that Tenant shall not permit or use the Leased Premises for the emission, 37 disposal, dumpin or storage of hazardous wastes through or into the septic tanks, sewers, or other 38 waste disposal facilities of the Shopping Center or anywhere in the Shopping Center or permit same 39 to be brought into the Leased Premises at any time, and the provisions of this sentence shall 40 survive the expiration of the Lease Term for ten years. Tenant agrees that the Leased Premises wilt 41 be kept free of rodents, vermin, insects and other pests, and Tenant will provide regular 42 exterminator services at its own expense, and at Landlord's option only by the exterminator 43 designated by Landlord provided his price is competitive. Tenant agrees that nothing will be done 44 or kept, or suffered to be done or kept or omitted which may either prevent the obtaining of any 45 insurance on the Leased Premises or on any building or other parts of the Shopping Center or on any 46 ersonal property therein (including, without limitation, fire, extended coverage and public 47 liability insurance), or which way make void or voidable any such insurance, or which may create any 48 extra premiums for, or increase the rate of, any insurance carried by Landlord or other tenants, and 49 if anything shall be so done, kept or omitted to be done which creates any extra premiums for, or 50 increases the rate of, any such lnsurance (including but not limited to Tenant's failure to install 51 sprinklers or fire extinguishers or failure to comply with any law, regulation, building code or 52 fire code relating to sprinklers or fire extinguishers or failure to comply with, any law, 53 regulation, building code or fire code relating to sprinklers fior or otherwise relating to the 54 leased Premises, as more particularly stated in Article 7), this shall be a default by Tenant 55 allowing the Landlord all available remedies, but in any case Tenant agrees to correct the situation 56 and agrees to pay as additional rent to Landlord the increased premiums and costs and expenses to 57 obtain other insurance or to retain the existing insurance. 58 Tenant further agrees: to stock or store in the Leased Premises only merchandise Tenant 59 intends to offer for sale at retail, to use for office or other non-selling purposes only such 60 incidental space reasonably required for Tenant's retail business conducted at the Leased Premises; 61 to place business machines and mechanical equipment, which cause vibration or noise to be 62 transmitted to the building structure or to other space to a degree•objectionable to other tenants, 63 in settings of vibration or noise eliminators sufficient to eliminate such vibration or noise; 64 Tenant will not solicit business or distribute advertising matter in the Common Areas; and Tenant 65 will not conduct nor permit preparation of food or any •, cooking, baking, or frying in the Leased 66 Premises. Tenant wilt comply with all requirements of lnsurance companies, including maintaining 67 and servicing fire extinguishers. Tenant shall at all times keep the Leased Premises and the 68 sidewalks and curbs and ramps (if any) adjacent and exterior to the Leased Premises, and also all 69 delivery areas used exclusively by Tenant and loading docks used exclusively b Tenant, in a neat, 70 clean and orderly condition and free from snow,, ice; rubbish dirt or other dyebris, and free from 71 obstructions or any potentially dangerous condition. Tenant shall, at its expense, keep all load in 72 docks ramps and loading areas used exclusively by it in good, safe and orderly repa>.r and 73 condi}ion. Upon Tenant's failure to keepp the sidewalks; curbs, ramps, and loading areas 1n the 74 condition required, Landlord in addition to any other rights, may (but shall not be obligated to) 75 erform same as Tenant's agent and the cast thereof shall be paid by Tenant as additional rent. 76 Tenant will not make or suffer any waste of the teased Premises or permit an thing to be done in ar 77 upon the Leased Premises creating a nuisance. Landlord shall not be liable for the act of any other 78 tenant or person who may cause damage to or who may interfere with Tenant's use or occupancy of the 79 leased Premises or Tenant's business. 80 10. Utilities, Repairs, Signs, Alterations, Liens 81 10.~(A) Tenant agrees to provide and pay for its own heat, air conditioningg, water, gas, 82 electricity, sewer, sprinklers and other utilities, including any application deposifs, and the cost 83 of and installation charges for all utility meters. If the author, [y having ,}urisdiction chargges 84 for the use of the sanitary sewer system, Tenant shall pay the share thereof properly apportionable 85 to the Leased Premises reasonably determined by Landlord. Tenant agrees it will at all times keepp B6 sufficient heat at a level to prevent the pipes from freezingg. If Tenant receives utilities throwgh 67 a meter which supplies utilities to other tenants, Tenant w511 pay to Landlord as additional rent, 88 Tenant's proportionate share (based on relative square feet size of premisesf of the total meter 89 chargges. If Tenant receives water from Landlord's well or other sources made available by Landlord 91 SuPppsiyad malntenance,in~ePa~deno~ wareplacementy and instalia#iona ofo pumps~l tanks aneleetric5ecostr 42 macfllnery, pipes, apparatus and facilities shall be included in Yearly Common Area hosts. -6- Initial Ue ~' Landlord' / ; Tenant [<;~ ~ L 22 24 25.. 28 3/ 33 35 38 40 41 42 45 46 47 49 50 52 54 56 58 60 62 ~• Landlord's Repairs " ' (8) On written notice from Tenant which Tenant agrees to give {but not, except in emergency on less than 30 days notice) Landlord will (weather permitting and sub,7'ect to the provisions o~ Article 25 below) make (or commence investigations and plans to, make) all necessary repairs to the foundation, the roof the exterior of the perimeter demising walls, and the weight-bearing structural columns and beams in the Leased Premises, except that if repairs or replacements to the same become necessary by reason of (i) repairs installations, alterations, additions or improvements made 6y Tenant or anyone claiming under `tenant or (ii) the fault or misuse or manner of use of Tenant or anyone claiming• under Tenant, or ((iii) default to the performance or observance on the part of Tenant of any provisions in this lease to be performed or observed then Tenant shall make such repairs or replacements. In determining the object of Landlord's repair obligations, the expression "roof" does not include any rooftop heating or air conditioning units or other structures or apparatus on the roof serving the Leased Premises, and 'exterior of walls" does not include the store front, ahy glass, windows, window sashes or frames, or any doors, door frames or door hardware any trim or closure devices or any, part of the interior side of building perimeter walls, all of which shall be Tenant's duty to repair and. maintain. In any event Landlords obligation or liability shall 6e only to make the repairs for which it is hereby obligated, and Landlord shall not be liable for damage to or loss of personal propert , fixtures, ceiling tiles carpeting stock, inventoryi furnishings,. any interior elements of the Leased Premises which are Yenant's responsibbility,to maintain or repair, or for loss of business, loss of sales, loss of profits or for any consequential damages. Tenant's Repairs (C) Excepting only the repairs Landlord is obligated .to make in the preceding subparagraph " B~" Tenant agrees to maintain the Leased Premises and make all repairs and alterations of every .kin inside or with respect to the Leased Premises in order to keep the same in good condition ' (including ~~the store -Front;signs, the ~eeilings,, the'~iiiterior -walls, -and "the interior side of perimeter, walls, the floor and the floor coverindgs, the plumbing, electric, heatindq and air conditioning, sewerage and sprinkler systems, an ail switches and appliances an lighting fixtures), and to do a71 required by any laws ordinances, regulations or reqyuirements of public authorities, subject to Article~l3 and 14 hereof. In addition, Tenant agrees fo make all repairs replacements and alterations necessary to maintain in good. condition and operation alT electrical panel boxes, conduits, fixtures, meters and equipme t relating to utilities (including heating, air conditioning, water, gas, electricity and sewerage to the extent they serve the Leased Premises exclusively, whether Tocated inside or outside the Leased Premises; and Tenant further agrees that if any air conditionin or heating equipment (or other utility equipment of similar or dissimilar nature) even if locate on the roof is damaged or destroyed by fire, lightning or other tasualty, Tenant shall repair (and if necessary, replace) such equipment at Tenant's sore cost and expense, Landlord having no liability with respec thereto whatsoever. Tenant agrees to replace damaged glass or damaged equipment with substitutes of the same kind and quality. Tenant agrees to paint and otherwise redecorate periodically to keep the Leased premises attractive in appearance. Signs; Painting; Displays D) Ho sign, other advertising or any other thing may be placed by Tenant or anyone claiming enant on the exterior of the Leased Premises or on interior part of either windows or doors Landlord's prior written approval * Flashing, painted, neon or moving signs will not be ed in any case. Tenant will not paint, decorate or mark any part of the exterior without is prior written consent * Tenant a rees to install an exterior lighted sign or signs in ice with Landlord's specifications) and to keep its exterior ligghted sign or signs (which must ~urpasoreduested bloLandlordtonnalllda s of theca ear.0:00 p.m. ddring dusk or night or to such 4 Y Y Y * which shall not be unreasonably withheld. Alterations (E) Tenant agrees that no alterations instal to or on the Leased premises without Landlord's installations, alterations, additions and improvemen person (except only signs and movable trade fixtures Tenant's cost)_shall become, when made, a part of La ses Term or at the termination thereof, 's signs and movable trade fixture become the property of Landlord un ~, if any, owed to landlord arising shall not have the right to remove s Penrits; Liens Tenant agrees that all repairs, instalta ie in a good and workmanlike manner, only y with all lawsi ordinances and regulation s insurance policy requirements and with ii one in such manner that the structure c :ndangered or impaired; and Tenant will the filling of holes, {including but not ed Dart to good condition. tenant adrees ses and t and save nenf, -bond in 'or' ot6e on the public record ig from any act of Tel uest of or anyone cl expense, and collect ~rx done ny or for ng Center a?71 be I harmless `rom a or resulting from se, trom the puoilc r in any wa agams t or from la~or or m ing under Tenant, fa e same from Tenant as ions or improvements will be made approval; and in any case all ' Landlord or Tenant or any other or to or during the Lease Term at estate, and on termination of the Isturbance, molestation or injur movable trade fixtures during tie, lefault under this lease, such of ignate shall not be removed and y cured and Tenant has paid all s otherwise directed by Landlord, alterations, improvements and removals o sign box holes), and will restore nptly when due all charges for labor or anyone claiming under Tenant, so times free of liens. Tenant agrees nst all claims for injury, loss or ing of an such work, and to remove, in ten days after notice all liens s interest in the Shopping Center ng alleged to have been supplied at Landlord may remove such lien at renf. 81 11. Indemnity 82 11. (A) Tenant agrees to protect, defend, save harmless and indemnify Landlord and any fee owner 83 of the Shopping Center from and against all losses, claims, liabilities, injuries, expenses 84 (including legal fees), lawsuits and damages of whatever nature either (i) caused by or resulting 85 from, or claimed to have been caused by or to have resulted from any act, omission or negli cote of 86 Tenant or anyone claiming under Tenant or its subtenants, concessionaires, employees, contractors 87 and invitees no matter where occurring, or (ii) occurring in the Leased Premises or arising through _7_ Initial Ner Landlord' , ienan~ ...~ ~,~w 1 . Z 3 4 5 6 7 B to 11 14 15 16 17 19 ~0 24 "26 29 32 34 35 ,the use or occupancy of the leased Premises no matter how caused. if in conJunct'iort with its use of the Leased Premises, Tenant makes shopping carts available for use by Tenant's customers, the indemnity provisions( of the preceding sentehce shall apply to any losses, claims, liabilities, injuries, expensesgg ({{including legal fees), lawsuits and damages of whatever nature and wherever itsuex~penseretotcollecthandsremoverallesho ping cartsrf9omathe CommoneAreacasnoftenaas necessaryat so that the~Common Area shall remain free o~•same; and all shopping carts shall be Stored inside the Leased Premises. Landlord shall not be liable or held accountable under any circumstances for any injury loss or damage to or interference with any merchandise, equipment, fixtures, furniture furnisRings or other personal property or the business operations of Tenant or anyone in the Leases Premises that may be occassoned by (r) the act or omission of ppersons occuppying adjoining premises or (ii) any defect, latent or otherwise, in any building or fhe equipment,•machinery, utilities, appliances or apparatus therein, or (iii) any :bursting, breakage or leakage of the roof, walls, floor, pipes or equipment or (iv) any running, backingg up seepage 'or overflow of water or sewerage, or (v) caused by )'loud, rain, snowfall or other elemen)s or Acts of God. to Landlord and eneral liabili including sign combined single million, naming written on a cc Tenant's Insurance rgrees to maintain with financially responsible insurance companies sans censed to do business in the state where the Leased Premises are located: insurance policy with respect to the Leased Premises and its appurt laming Landlord as an additional insured with a limit of not less than jl i nit; (ii) an umbrella Tiability insurance policy with a limit not less i ndlor as an additional insured; iii) a boiler and machiner insurance ehensive basis to cover any insure 1e objects, with a limit o¥ not less 1 all-risk property insurance policy. insuring. all 'of the Tenant's merch~ nts, furniture and fixtures all at their replacement cost. Tenant shall c icies" or certificates thereof -issued by. the insdrarh:e company .to Landlor t least 30 days prior to the commencement date of the lease Term and o ~reafter. If Tenant does not deliver the polities-oe certif'cate;. as afor out.necessity of further notice, constitute a default hereunder, and in ad is and remedies as are available to Landlord as a consequence thereof La rt (but not the obligation) to purchase said insurance on hehalf of tepa to Tenant, or in h eu thereof charge Tenant 30 cents per square foot ~ Tenant shall remit to Landlord within five (5) days of receiving the bi premium or for the 30 cents per square foot, as additional rent, All pa :d of Tenant shall have terms of not less than one year. .~ 6 12. Access to Premises 7 12. Landlord without ' diminishing tenant's obligations, shall have the right to enter the Leased 38 Premises at a1 1 reasonable times and in case of emergency, at any time, for inspection, to show to 39 4 prospective purchasers, l d mortgagees or tenants, or to make any repairs alterations, additions or t ' th d it th f l i d i 0 4 improvements, inc u ing to insta l or remove s o re s an o er con u s serv ng o er par pipes, w f th d d i i L I the Shopping Center. Commencing 6 months ease Term, Lan may pnor to exp rat on o e lor 42 maintain "For Rent" signs on the front or any other part of the exterior of the Leased Premises. 43 13. Fire and Other Casualty 44 13. (A) Tenant shall give prompt notice to Landlord in case of fire or other damage to the Leased 46 Premises. (B) if (i) the Shopping Center buildings shall be damaged to the extent of more than 254 of 47 the cost of replacement thereof or (ii) Landlord's insurance recovered and retained' by Landlord 48 shalt be insufficient to pay fully for,the cost of replacement of the damaged building, or (iii) the 49 Leased Premises or shopping Center buildings. shall be damaged from a risk which is not covered by SO Landlord's insurance, or (iv) the Leased Premises sha1T be damaged to the extent of more than 504 of Si the replacement cost, or (v the Leased Premises are damaged and shall not have been operating for 52 business as required by Article 9(C) above at the time of the fire or other casualty, or (vi) the 53 Leased Premises are damagged and less than 1 year of the Lease Term remains unexpired at the time of S4 the fire or other casual}y; then in any of such events, landlord may terminate this lease by notice SS given within 90 days after such event, and on the date specified in such notice this lease shall S6 terminate. Notwithstandingp that the casualty, repairing or rebuilding renders the Leased Premises 57 wholly or partly untenantable there shall not be any abatement or suspension of the Base Rent or 58 any Rent, (unless Tenant or landlord have procured a rent insurance policy and Landlord receives 59 the proceeds payable thereunder; and then only to the extent of such proceeds actually received by b0 Landlord) but unless this lease is terminated by Landlord as aforesaid, this lease shall remain in 61 full effect notwithstanding the damage or any law to the contrary., (C). If this lease is not terminated, Tenant shall, immediately upon receipt of notice from 63 Landlord to do so, remove such fixtures and other property and debris from the leased Premises as 64 shall be reqwired by Landlord in order to enable Landlord to proceed with repair and restoration 65 work. Landlord shall proceed with repair and restoration of L'andlord's property; and upon 66 completion thereof Tenant shall proceed with repair and restoration of Tenant's property. All 61 repairs and restoration of the Leased Premises not Landlord's obligation shalt be performed promptly 68 by Tenant, and Tenant will promptly reopen for business. In arly case when Landlord has the 69 obligation to rebuild such obligation shall be only to expend the amount of insurance proceeds 70 recovered, and in any event only to rebuild the Leased Premises to the extent of its condition 71 existing at the time when the Leased Premises were originally delivered to Tenant. If Tenant carries 72 insurance covering the damage or any portion of the damage, Tenant shall use the proceeds for 74 restoration of the Leased Prpemises. 75 contractor selected by Landlord ement" as used in "(B)" above shall be determined by a reputable 76 14. Eminent Domain 77 14 A) if the whole of the Leased Premises shall be taken under the power of eminent domain, the 78 Lease Term shall expire when Landlord shall be divested of its title, and Base Rent shall be 79 apportioned as of the date of expiration. pp 8t ground(f~oorfarela ofathe Leased Premiseseis reducedaby moreethan ZO~eand the~part remainingnshail 82 not be reasonably adequate for the operation of the business conducted in the Leased Premises prior 83 to the taking, Landlord or Tenant may terminate this lease by giving the other notice within 30 days 84 after it has received notice of suth taking, effective as of the date possession of the taken part 85 shall be required for public use• and Base Rent shall be apportioned as of that date. If this lease 86 is not telvnrnated, Landlord shall, within a reasonable time after possession is required for public 8> use repair and rebuild what remains of the Leased Premises; and a just proportion of the Base Rent 88 according to the nature and extent of the injury to the Leased Premises shall be abated until what 89 remains of the Leased Premises shall be put into such condition by Landlord; and thereafter the Base _g_ Initial He ' ' Landlord' ~ Tenant,. =_ ; ~/ t 4'`. \ .a ~ i , , ~ 1 t 1 - Rent accord in to the nature and extent of the part so taken, shalt be reduced by a just proportion 2 thereof for tie balance of the Lease Term. 3 C) Tenant shall not have, and hereby waives, any claim for any part of the award based on 4 the value of the unexpfired portion of the Lease Term or loss of its leasehold estate. Landlord 5 reserves to itself, and Tenant assigns to Landlord, all rigghts to dame es accruing on account of any 6 taking under the pover of eminent domain or by reason of any act o~ any public or quasi public 7 authority for which damages are payable. Tenant aggrees to execute such instrument of assignment as B may be required by Landlord for the recovery of sucp damages and agrees to turn over to Landlord any 9 demo a proceeds that may be recovered, provided,~however, Tenant may recover for itself damages•for 10 movagble trade fixtures which were installed and paid .for by Tenant at its own cost, provided I1 Landlord's award is not reduced thereby. 12 15. Defaults 13 15. (Aj Any one of the following shall be an event of default b Tenant; (1 if Tenant fails to L4 pay Rent, Security peposit or other money, or (2) if Tenant fails to perform or observe any l5 agreement or condition on its part to be performed or observed other than the events of default 16 mentioned in clauses (3) through (11 )• below, and also other than failure to pay Rent, Security [Y Deposit or money and falls to cure sold default within IS days after notice from Landlord, or- if l$ Tenant commits anp default under any other lease or agreement between Tenant and landlord (or an Ig affiliate of Landlord) or (3) if any person shall levy upon, attach or take Tenant's leasehold '.D interest or any part thereof upon execution, attachment or other process of law or (4) if Tenant .'1 makes an assignment of its propert for the benefit of creditors, or (5) if 'tenant is declared :2 bankrupt or insolvent, or (6) ify any bankruptcy, insolvency or reorganization proceeding or :3 arrangement with creditors (whether through court or by proposed common law composition) is '4 commenced •by or against, TenantR or (7), if a receiver or trustee is appointed for any of Tenant's 'S roperty, or ,($) if Tenant fails to move 'ihto,' take''possession"and open the- Leased- Premises for 'ii Business within the period of time it is obligated so to do after Landiord has given notice to Tenant that the Leased Premises are ready for occupancy, or (9) if this lease is transferred to or $ devolved on, or the Leased Premises are occupied by anyone other than Tenant except as may be 9 specifically permitted 6y this lease or (10) if Tenant ceases doing business at the Leased Premises, 0 or (!lj if Tenant fails to the payment of an Rent, char es or other sums when due, ~w~tt+.•i+aw-iyi. 1 and any such failure shall 6e 2 repeated for two consecutive months, or or a total o t ree moot s in any period of twelve months 3 then notwithstanding that such defaults shall have been cured, any further similar default shall be 4 deemed to be deliberate and incurable. 5 In case of the occurrence of any of said events of default mentioned in (1) through 11] 6 above Landlord or its agent. shall have the option to terminate this lease and shalt have the right, 7 immediately and without non ce or demand, to enter the Leased Premises and dispossess Tenant, its $ legal representatives and other occupants and their property b legal proceedings, use of reasonable 9 force (including, without limitation, changing, of door locks or otherwise, Tenant here6y waiving 7 any claim it might have for trespass or conversion or for any other damages; but Tenant shall remain ~ liable as hereinafter provided. (Bj Tn case of re-entry or dispossession by legal proceedings or otherwise, or termination of l this lease by Landlord as in paragraph "(A)" above provided, Tenant agyrees it will be liable to 1 Landlord for alt the expenses Landlord incurs for: legal fees related fo obtaining possession and i making any new lease with another tenant; brokerage commission in obtaining another tenant; expenses ~ incurred in putting the Leased Premises in good order and preparing for re-rental; in addition ' Tenant agrees it will remain liable to Landlord for all Rents and other charges required to be paid f upp to the time of such re-entry, dispossession or termination and for Landlord's damages• arising out I of the failure of Tenant to observe and perform said Tenant's covenants herein contained; and in I addition, for each month of the period, which would otherwise have constituted the balance of the Lease Term, Tenant shall pa any deficiency between the monthly installment of Base Rent plus the Tax Rent, Common Area Rent and all other rent that would have been payable for the month in uestion, Less the net amount, if any , of the rents actually collected by Landiord from a new tenant. Landlord may relet the Leased Premises, or an part thereof for a term which may be less or more than the period which would have constituted ~he balance o~ the lease Term and may grant concessions or free rent to a new tenant. Landlord's refusal or failure to relet the Leased Premises or any part thereof to an new tenant for any reason shall not release or affect Tenant's liability; and Landlord shall not bye liable in any way for failure to relet the Leased Premises, or if relet, for failure to collect the 'rent under such relettinp. Any monies collected from any reletting shall be applied first to the fore oing expenses and damages of Landlord and then to the payment of Rent and other payments due from_l9e$ant_to Landlord. Tenant_ will not be entitled to any C) In any of the circumstances mentioned in the foregoing paragraph "(81" in which Landlord shall eve the right to hold Tenant liable upon the several rent days, Landllord shall have the election, instead of holding Tenant so liable, forthwith to declare all the aggregate Rent for the remaining balance of the Lease Term and all accrued Rent immediately due and pay able, and to recover against Tenant, as liquidated damages all accrued Rent and also for loss of a bargain and not as a penalty, an amount equal to the excess of (i) the Rent that Tenant would have been obligated to make for the balance of the Lease Term if Tenant had not defaulted, over (ii) the fair rental value of the Leased Premises for the same period. ((Dj In the event of a breach or threatened breach by Tenant of this lease, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention of any particular remedy shall not preclude Landlord from any other remedy in la,. or in equity. If the Leased Premises are located in Pennsylvania or any other jurisdiction affording landlords certain rights or remedies provided that such rights or remedies are specifically reserved or expreseed in the lease agreement, Landlord hereby specifically reserves such rights .and remedies and this lease is hereby deemed to have inrnrporated and expressed in total any and all such reserved rights and remedies, and Tenant hereby acknowledges notice of such incorporation and waives, to the fullest extent permitted by law, any and all objections or claims of irregularity arising out of such legalrproceedingns torthat ende5and waives any yr ghtsfof redemption granted by an a present orsfuture laws, relating to the event of a tenant being dispossessed for any cause, or ofyLandlord obtaining Pose~scion of the teased Premises by reason of the tenant's breach. The words "re-enter" and re-ebtrq" as used in this lease are not restricted to their technical legal meaning. (F) Landlord and Tenant mutually agree that they hereby waive trial by jury in any action, proceeding or counterclaim 6rou ht by either a ainst the other, or as to any matters arising out of or'in any way connected with this lease, or t~ieir relationship as Landlord and Tenant, or Tenant's use or occupancy. Tenant further agrees for itself and al.l of its successors or assigns and for any guarantor of this tease that no counterclaim or setoff will be interposed in any action by Landlord -g- Initial Her ' Landiord; • y Tenant ' ' .based on non-payment of rent even if such counterclaim or setoff is based on'Lah8lohd's alleged breach of a duty to repair or alleged breach of quiet en,(oyment or any other allegation or even if it is alleged to be inextricably related to Laddlord's claim far Rent. foreclosure of any such mortgage or in case of sale in lieu thereof, or termination of anp such ground or underlying lease, tenant aggrees, if requested to attorn to such transferee mortgagee ground or underlying lessor and fo deliver, withou( charge, instruments acknowledging suc{i attornment. (C~ Tenant agrees that it will give prompt written notice of any default by Landlord to the holder o all mortgages, ground or underlying Teases and security holders if the default is such as to give Tenant a right to (i) terminate this lease, or (ii) reduce the Rents or any other sums reserved, or (iii) credit or offset any amounts against Rents, Provided Tenant was given notice in writing of the names and addresses to which said notices should be sent. Any mort~gogee, ground lessor or security holder shall have the rtgfit to cure Landlord's default within 60 days after receipt" of Tertant• s -notice.; .and •no .such `righl9s:or remedies shall. be exercised by Tenant until the expiration of said 60 days (or such additional time reasonably required to curd such default). 16. Subordination 16. (A) This lease is and shall be subject and subordinate to (i) all ground or underlying leases, and (ii~ a1T mortgages or other security instruments which may now or bereafter~affect such ground or untler ying.leases, and (iii) all mortgages or other security instruments now or hereafter placed on the Shopping Center, and (iv) all renewals, modifications, consolidations replacements and extensions of any such underlying leases and mortgages. This clause shall be self `operative and no further instrument of subordination shall be required by any ground or underlying lessee or by any mortgogee. In confirmation of such sulioi-dination, Tenant agrees to execute promptly any instrument that Landlord may request. However at the option of Landlord or such mortgagee or ground 'lessor or secured party, this ..lease s~iall be paramount to such mortgage or ground or underlying lease or other security instrument. `B) If Landlord transfers its interest in the Leased Premises, or proceedings are brought for 28 17. Waiver of Subrogation 29 17. Tenant hereby releases Landlord and all other persons claiming under it, to the extent of its 30 insurance coverage, from any and all liability for an losses or damages caused by fire or any of 31 the extended coverage casualties, or any other insuredycasualt , even tf such fire or other casualty 32 shall be brought about by the fault or negligence of Landlordyor of any persons claiming under.it. 33 Tenant will cause its insurance company to endorse its insurance policy with a waiver of subrogation. 18. Tenant agrees that it wi this lease or any interest the suY~bB~let the whole or any pari~t o slia~~°~iot ~e unoieassonab~y Landlord's administrative and~at is to occur lfor this pur the number of days in suc assignee covenants and agt Percentage Rent payable t the basis of reductrig the unelapsed portion of the assignment contains a pr re-enter, re-possess or o lease. Tenant further a proposed assignment, mortg therein, or to any propose performed all of Tenant Landlord's consent is song in posses ion of the easel any assignment or Subletting. 'i subletting or occupancy of the Landlord's consent, Tenant shat under this lease and shall con right to collect all the rent pa; Tenant or waiving any right ai accepting the occupant as a perm mergers consolidation or liquids an assignment for the purposes o any circumstances, Landlord shat assignee, transferee or subtenant or transfer of Tenant's corporat any subletting. In any case wh assignment of this lease or trar desppite the prohibitions contain ri ht to refuse its consent to ar (i~ Tenant (as the proposed assn any Percents a Rent due for the or Subletting mortgage, pledge, or oluntarily or by open remises, or permit oa irney's fees. for review or preparation, of ar the event of any assignment voluntarily, or Leased Premises by anyone else, even if i not be released from any obligations, 1' inue to remain responsible thereof, and L able b9 the assignee, subtenant or other occ iinst Tenant for its default under6 this tted tenant. Any transfer of the corporate ion voluntarily or by operation of law shah this Article and shall require Landlord's not be liable for any money damages to Tena for refusal to consent to any assignment or stock or sale of Tenant's business or for n the applicable law or a court order volt ter of Tenant's stock or a merger or coast d in this Article 18, Tenant agrees that L proposed asst nment and no such asst nment norl oavs LandT4or•d. prior to effectuafina t blaPseA -portion of t he 'Gross Sales Base ed portion of the sa the proposed instru ird for the unelapse Sales Base" in the Lease Year bears t pursuant to which gain an right to hat Landlord shall 'dga or other transf ~tting, in any case ations under this ant is either in de es and operating for i.p~ Year transfer law or o' bcuments relating to operation of law or rppfully done without ilities or covenants lord shall have the nt without releasing icle 18 and without ick of the Tenant or e deemed the same as tten consent. Under or Tenant's proposed ansfer of this lease rfusal to consent to granted .permits an unless tgnment, meat.or asst nmencl gnat tine comput;anon or any d portion o said Lease Year shall 'be made" on same proportion that the number of days in such 0 365, and (iii) the proposed instrument of the proDosed assignor waives all rights to occu the, Leased Premises or re-acquire the have piYhe right to refuse its consent to any er or encumbrance of this lease or any interest wherein Tenant has not faifhfuTiy observed and lease or in any case wherein, at the time fault of this )ease, or Tenant is not actually business therein. 73 19. Holding Over 74 19.- If Tenant or anyone claiming under Tenant remains in possessiori of the Leased Premises after 75 the expiration of the Lease Term without any agreement in writing with Landlord with respect 76 7 thereto, the person remaining in ossession shall P be a tenant at sufferance; and Burin such holding T h 7 over, ease Rent shall be twice i he rate which w as in effect immediately prior to t erm e lease 78 expiration, which Landlord may collect without admission that Tenant's estate is more than a tenancy 79 at sufferance and all the other provisions of this lease shall apply insofar as the same are 80 applicable to a tenancy at sufferance. el 20. No Waivers by Landlord 82 83 20. Landlord's failure to complain of any act or omission 6y Tenant, no matter how long, d t b dl shall ti or not e deemed to be a waiver by landlord of any of its rights. No waiver by Lan a any me, . 84 express or implied, of any breach of this lease or requirement of obtaining Landlord's consent shall 85 be deemed a waiver of a breach of any other provision of this lease or any subsequent breach of the B6 87 same provision or a waiver of any necessit for further consent. If any action by ' ' l Tenant shall require Landlord s consent to or approval of such acti ord s consent or approval, Land on on a ny one - 10 - .. ' Intttal Her ; i Landlord' .> Tenan~_..ti; k. 1 2 4 5 6 7 8 9 12 14 16 17 occasion shall not be deemed a consent to consent to or approval of any other acti Tenant or acceptance by Landlord of a 1 anything but payment on account, and La endorsement or statement thereon or in a paymeet in full shall not be deemed an without prejudice to recover the balance that Landlord may accept paymeats of Rent Tenant, without pprejudice to the subsequ remedy available to Landlord under this 7e any payment made by Tenant after terminati acceptance of rent but rather shall consti or approval of said action on any subsequ on an the same or any subsequent occasior esser amount than due from Tenant shalt ndlord's acceptance of a lesser amount letter accompanying said check that said accord and satisfaction. Landlord may. due or pursue any other remedy. It is or a cniraca. n„ , ,yn,.a a or y, aw or in equity shall be distinct,' inconsistent with each other; and no one of ti deemed to be in exclusion of any other; and any at the same time. t occasion or a No payment by e deemed to be check with an esser amount is partial payments thereof) even after default by oncurrent exercise by Landlord of any right or law or in equity. Any acceptance by Landlord of iration of the Lease Term shall not constitute an yment to Landlord on account of Tenant's use and emedies which Landlord ma have under this lease orate 'and cumulative and shall not be deemed whether exercised by Landlord or not, shall be all of such rights and remedies may be exercised 18 21. Rules and Regulations 19 21. Tenant agrees to observe and complyy with, and will cause its subtenants and concessionaires, 20 and its and them employees and agants, to observe and comply with alt rules and regulations from ' 21 time to time promulgated by Landlo rd by notice to Tenant for the benefit, in Landlord s sole 22 judgement,.af the Shopping Center; and such rules or regulations shall have the same force and 23 effect as if originally contained in this lease. 24 22. Failure of Perfornance'Dy' Tenant 25 22. If Tenant shall default under this lease, Landlord may, at its election, immediate)y or at 26 any time thereafter, without waiving any claim for breach of agreement, and without notice to 27 Tenant, cure such default or defaults for the account of Tenant, and the cost to landlord thereof 28 plus interest thereon at the annual rate of interest equal to the highest lawful rate, shall be 29 deemed to be additional rent and shall be added to the installment of rent next accruing or fo any 3D subsequent installment of Base Rent. Tenant agrees to pa all attorneys' fees, rnsts and expenses 31 incurred by Landlord in enforcing the previsions of this lease, suing to collect Rent or to recover 32 possession of the Leased Premises, whether the lawsuit or other action was commenced by landlord or 33 by Tenant. 34 23. Li~itations on Landlord's Liability 35 23. (A) The words, "Landlord" and "Tenant" shall include the original persons named expressly as 36 Landlord and Tenant, and their respective transferees, legal representatives, successors and 37 assigns, and all their liabilities hereunder shalt be joint and several; and except as otherwise 38 provided in the next sentence, the agreements and conditions contained in this lease on the part of 39 either party to be performed and observed shall be binding upon and inure to the benefit of the 40 parties hereto and their respective transferees, le al representatives, successors and asstgns. 41 'Landlord", as used herein, means only the owner for the time being of Landlord's interest in }his 42 lease, and in the event of a transfer by any Landlord of its interest in this lease, the transferor 43 shall be automatically released from all liability and obligations of the Landlord subsequent to the 44 time of transfer. gg yy g Y 46 estate(en the ShopsPinggdiCenterthsubject tto thetrigh~sTofathe holder of any )mortgage lthereo~andas rthe 47 sole asset for rnltection of any claim, judgement or damages or enforcement of any other judicial 48 precess requiring payment of monep. Tenant agrees that no other assets of landlord shall be subject 49 to levy, execution or other procedures for satisfaction of Tenant's rights or remedies. 50 24. Miscellaneous Provisions 51 24. (A) This lease contains the entire and only agreement between the parties. No oral 52 statements or representations or written matter not contained in this lease shall have any force or 53 effect. This lease shall not be modified or terminated orally, but only by a writingg signed by the 54 Landlord and Tenant, except for a termination expressly permitted by this lease. If more than one 55 party executes this lease as "Tenant', the liability of all such signatories shall be joint and 56 several. Neither this lease nor an memorandum, assignment or memorandum of assignment thereof 57 shall be recorded in any public records without Landlord's prior written consent. SS (B) The opening of the Leased Premises by, Tenant for its business shall constitute a 59 conclusive admission by Tenant that the leased Premises are in the condition required by this lease SD and that Landlord has performed all Landlord's construction work with resppact thereto. i2 or exterior awallsd (other thane Tensanlt's hstore lfront)rtort plat nng of esigns sortforthe purpose iof i3 additional construction. i4 (D Wherever in this lease provision is made for the doing of an act by any person, it is i5 agreed that said act shall be done by such person at its own cost andYexpense unless a contrary .6 intent is expressed. Notwithstanding the foregoing, however, Tenant expressly covenants and agrees i7 to pay Landlord any legal fees incurred b Landlord in the course of enforcing Landlord's rights .B hereunder; and regardless of whether such fees relate to actual commencement of legal proceedings or ~9 relate to work performed by an attorneyy preparatory thereto. 0 (E) The obligations of Tenant fo make the pa meets of Base Rent, Tax Rent, Common Area Rent 1 Additional Rent and all other charges required by this lease and to perform and observe any and alb 2 of the covenants and other agreements on its part, shall be a general obligation of Tenant and shall 3 be absolute and unconditional irrespactive of any defense, offset, counterclaim or right to compel 4 performance by Landlord. Tenant will not suspend, discontinue or abate any such payment or fail to 5 observe any covenant or agreement for any cause whatsoever including, without limiting the 6 generality of the foregoing, any acts or circumstances that may constitute an eviction or 7 constructive eviction, failure of consideration, or, except as expressly and specifically allowed by 3 this Tease, for destruction of or damage to the Leased Premises, commercial frustration of purpose, 1 or the taking by eminent domain of titre to or the right of tamporary use of alt or any part of the Leased Premises, or for any change i» the tax or ether laws of the United States of America or of L the State where the Leased Premises is situated or any political subdivision thereof, any agreement ' whether expressed or implied, or any duty,, liability or obligation arising out of or in connection 3 wifh this lease. Nothing herein contained shall be construed to re Tease Landlord from the I erformance of any of the agreer.~ents on its part herein contained, and in the event Landlord should i fail to perform any such agreement on its part, Tenant may institute a separate and independent action against Landlord, as Tenant may deem necessary to compel performance. - 11 - Initial Her ; . Landlord' ` ,' Tenant ' G- '` r 1•• (F) It is agreed that Tenant's "AS IS" acceptant 2 equipment, apparatust plumbing, heating, air, conditioning, 3 systems (as stated to paragraph 7 above) includes Tenon 4 patent defects therein. It is further agreed that, in 5 found to be ppresent within the Leased Premises which d 6 foundations, footin s or a load-bearing structural builds! 7 give Landlord written notice of such fact; (ii) Tenon 8 tncludin (but not limited to) performance of alteration! 9 that disturb the condition, or violate any legal requirem 10 retain control of all procedures employed to cure such 11 selection of consultants, attorneys and contractors reta 12 curative work; and (iv) Landlord shall at Landlord's opts 13 does not elect to do it, Tenant shall at Tenant's i 14 accomplished in accordance with all laws, regulations 15 agencies or authorities having ,jurisdiction. If requi 16 accomplish the cure, Tenant shall temporarily close the 17 inventor and other contents permit entry to accomplis 16 Landlordy and its agents' eft!orts; and Tenant hereby in 19 injury, property loss or damage or other damage, loss of b 20 such occurrence. In the event of any conflict or incon 21 other provision of this lease including but of limn 22 maintenance, alterations and comp lance with laws the pro 23 and it is expressly agreed that any discovery hereafter c 24 Leased Premises shall be deemed to be a cause beyond L 25 Weaning of paragraph 25 of this lease. ~26 27 25. Nhere either party heret 28 caused by Act of God, war, civi 29 of labor, materials or equips 30 reasonable control shall not t 31 completed. In any case where 32 awards, due allowance shall be 33 34 arty required to make such p. i Tenant agrees that the pprov sio 35 of the time for Tenant to pay R 36 not in any manner excuse or p~ 37 required to be obtained and mats of the Leased Premises and all of the electric, water, waste disposal and other 's acceptance of any possible latent or he event any, latent or patent defect is es not consist of defects in the roof, ~ component: (i) Tenant shall immediately shall forthwith cease all activities, renovations or redecoration activities nt; (iii) Landlord may (if it so elects] ondition including (but not limited to) Wed for curative work and scheduling of n but at Tenant's expense (or if Landlord cpense) cause the curative work to be and le al requirements of governmental ed by Landlord to do so, in order to .eased Premises for business, remove its the cure and generally cooperate with !vocably waives all claims for personal siness or otherwise in consequence of any istency between this clause (F) and any 'd to any provision re~ggarding repairs, isions of this clause (F) shall control; ' any latent or patent defect within the ndlord's reasonable control" within the 25. .Unavoidable Delays is rey~ired to do any act,' the -time attributable •di~rectly to -delays commotion, fire or other casualty, labor difficulties, or shortages tt, government regulations or other causes beyond such party's ,counted in determining the time during which such act is to be ork is to be paid for out of insurance proceeds or condemnation ode, both to the partyy required,to perform such work and to the Went, for delays to tiie collect ton of such proceeds and awards. of this Article 25 shall not be applicable of all to permit delay t or other money; and that the provisions of this Article 25 shall nit delay in obtaining and maintaining any policies of insurance lined 6y Tenant pursuant to the provisions of this lease. 38 26. Partial Invalidity 39 26. Each provision of this lease shall be valid and enforced to the fullest extent permitted 6y 40 41 law. However if arty provision of f h ll i ( d d this lease or application thereof to any person or circumstance or some un reason s a to n en e any extent be declared by a court to be invalid, the remainder 42 of this lease or the application of such provision to persons or circumstances other than those as 43 to which it is held invalid shall no t be affected thereby. 44 27. Inability To Deliver Premises 45 27. In the event for any reason or cause, Landlord shall be unable to deliver the Leased Premises 46 prior to one year after the date of the execution of this lease by landlord, then Tenant or Landlord 47 shall have the option within 30 days thereafter to terminate this lease by giving written notice to 48 the other, and then this lease, immediate)y, on g~~ing of such notice, shall be terminated, and both 49 Landlord and Tenant shall be relieved of all liabilities and obligations hereunder, except that 50 Landlord shall return Tenant's Security Deposit, if any. 51 ~ 28. Sole Broker 52 28. Tenant represents: that no broker or other person 53 34 was, involved in this tease, and that no conversations or 55 concerning the renting of the 56 indemnify and hold Landlord harmless against. any claims 57 arising out of any conversations or negotiations had by 58 61 64 6 68 69 72 75 77 29. E 29. Tenant agrees it will, at an notice by Landlord deliver to Landlg Landlord certifyin ~ the date of thi! unmodified (or tf ~Itere have been mod Base Rent payable throughout the Lease Rent and other payments have been poi! specifying the specific nature and d offsets, defenses or counterclaims ago and stating any additional matters rec such statement shall be a default by Ti ipel Certificates !and from time to time a signed and acknowled ase and that this teas :ations, stating the mo •m and the Percentage Re .hat Landlord is not in Is of each such defau enforcement of the obl ed by Landlord or a mo! t. ations .es. ' commis 30. Modifications for Financing Reasons 30. Tenant aggrees landlord may at any time and from time to time plat all or a part of the Shopping Center. If a mortgagee requires any modifi condition to issuing a commitment or closing the. loan, Tenant agrees to request the necessary lease amendment to accomplish such modifications, terminate this lease for Tenant's default; but Tenant shall not be modification which changes either the Rent the permitted uses of or th Leased Premises, the commencement date or duration of the Lease Term, or to be made by Tenant or Landlord to the Leased Premises. ten s force and effect and the amount of monthly the date to which the if default is claimed, or not there are any e performed by Tenant lure to timely furnis(i and repplace mortgages on it ions to this lease as a an,_ within 10 daY s after sling which Landlord may gaited to agree to any size or location of the he improvements required 78 31. Shopping !'inter Changes 79 31. Neither Exhibit A" nor this lease is a warranty by Landlord that the Shopping Center will 8D remain as shown. Landlord in its sole discretion may at any time relocate, increase, reduce or 81 otherwise change the number, dimensions, levels or locations of the buildings parking areas, exits 82 and walks and may make alterations or additions to any buildings or parking 1`acilittes. If at any B3 time Landlord desires to alter or improve the facade of the Shopping Center so as to modernize and - 12 - Initial Her ' Landlord) ; Tenant ' L 1 make it more aesthetically appealing and Tenant is requested to install a new permanent exterior 2 sign or a temporary sign or improve its store front, Tenant agrees to comply witf~ such request and 3 to follow the design of Landlord's architect, at Tenant's sole cost and expense. In the event of 4 any such alteration, improvement or modernization, Landlord reserves the right to use portions of 5 the Common Area for construction related activities; and to erect temporary scaffolding ~n front of 6 the Leased Premises. Tenant hereby waives any claim for rent abatement, loss of business or damages 7 arising out of any temporary inconvenience allegedly experienced by Tenant during the course of any 8 such alteration, improvementt or modernization, or during any repair activities in which Landlord is 9 engaged. 10 II 13 14 15 17 19 21 23 26 3~ 3Z. No 0 tion 32. The submission of this lease to Tenant for review or even for Tenant's signature after review does not constitute an execution and delivery hereof 6y Landlord and Tenant. No unsigned lease can be enforced in any manner nor give rise in any manner to any rights or remedies. 33. Notices 33. All notices and other communications authorized or required hereunder or relied on in order to impose liability on the other party shall be in writing. and sent 6y certified or registered mail return receipt requested postage prepaid or by telegram or by overnight independent courier such as Federal Express (and in order to be effective a copy of any notice o Landlord's default must be sent 6y Tenant to the holders of any mortgages, ground leases or security interests as per A77rticllve 16m(CH) herenonf7). clfpg~ivFe~Pn tGO TFenaTn`tnthNe spame 7shall7 be effective when mailed to Tenant at: dFZt6'~i~cti'Otl~e~'~d~eSSTa';'TehaiftTata~-hel`eaffe~ d8si~~Ta~e y notice to Lan ord; and if geven to Landlord the same shall be mailed to Landlord at P.0. BOX C, 1044 Northern Boulevard Roslyn, New York 11576 or to such other person-ar~at such bther~addcess-as landlord may hereafter designate by notice to Tenant. Notice to Landlord shall 6e effective only on the date actually recei'ved'. Notice to Tenant shall be effective one (1) day after sent to Tenant. The purported giving of notice or exercise by Tenant of any right, opftion.or privilege by any method or means of communication other than 6y written notice given in strict accordance with the preceding provisions of this Article 33 shall be null, void and of no force or effect whatsoever, even if any such other method or means or means of communications used by Tenant succeeds in conveying actual notice of such purported exercise by Tenant. SEE RIDER ATTACHED HERETO AND MADE A PART HEREOF. 2 3 IN WITNESS WHEREOF, the parties hereto have executed this lease under seals as of the day and year first above written. WITNESS 70 LANDLORD: ~ / ~; ~` ~ ~~ ~ o~ 6 NITNESS TO TENANT: ~_ ~ ~. 8 9 LANDLORD: KIMCO a 1By' ~~ ~~~,~ Date: `C ~-~\ TENANT: 0.s W~ G~ ~'ti'. --T - KIM CHAN Date: ~~~_ SSf/Fed Tax ID f - 13 - 135-82-7982 Initial H Landlords _l,~ Tenant ; 1(.iti~ respective hands and OF (;IANTS, I.NC. seal) ;,: COUNTY OF Dn the of and ,jurisdiction aforesatd, I'~ did say that they are the (titles) and that they know the seal of said ~ seal and that it was so affixes acknowledged execution of said ~ voluntarily executed. _~/ (Notaria 55: ,19 appeared (names) i~ a Notary Public in and for lly known, who by me duly sworn said instrument is such corpora{'e s of said corporation; .and they I deed of said corporation by it Ny Commission expires FOR TENANT (INDIYIDUAL): STATE OF ~'~ ) N,V~ ) ss: COUNTY OF ~ ) On the Y, ~ day of ~~ ~ ,1991 before ine, a'Notary Publicin and for the jurisdiction aforesaid personal y ap ared (name)__ _ p~~{ to me personally known, w(lo by me duly sworn did say that 6e acknowleagea ~t3•ori oi-said instrument to be his voluntary act act and by him volumtarily executed. (Notarial Seal) Hy Commission expi'~r LEE M. i;ONG Notts Public, Stete d NwrYiorlt No.494a492 u~filad nHwvulbr~k~Com~ 2 ~~~ r~r.. Rk 1, 1si.~ - 14 - Initial Her - ; Landlord' ' Tenant ~ ~(` A APf4 nIx ltl.J/v/ W/ rn PAGE. 1 , , ~ , . . RIDER TO LEASE DATED AS OF SEPTEMBER•18, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. 34. Notwithstanding anything provided herein, if there is any discrepancy between the printed form and this rider, the rider shall prevail. , 35. Tenant's sign design drawings shall be submitted to the Landlord for Landlord's approval prior to the erection of Tenant's sign. The sign shall not exceed 30" in height, nor shall the length exceed 2/3• of the Tenant's storefront. Flashing, neon or moving lights on signs are prohibited. Ali the provisions of this Lease shall apply to said sign, insofar as said provisions are appplicable, including but not limited to Tenant's, duty to repair (Article 10) and insure (Article 11) said sign, and said sign shall comply with all laws. The sign shall not be placed in such a manner that it extends above the ,parapet or facade and shall be in the designated area. 36. It is understood and agreed thaf `Tenant' has inspected and examined the premises being leased and the parking lot and common areas of the Shopping Center and is familiar with the physicai condition thereof; Landlord has not made and does not make any representations as to the physical condition of either the Leased Premises or the Shopping Center and Tenant agrees to take them "as is". 37. (A) At its expense, within thirty (30) days after the date of Landlord's execution of this Lease, Tenant small submit for Landlord's written approval complete detailed, drawings and specifications (hereinafter collectively referred to as "Plans") for all the work to be done by Tenant to the Leased Premises, failing which Landlord has the right to terminate this Lease and to retain the Tenant's entire security deposit as liquidated damages..(~u-.«~~~~~,~''L"r"`s •~^~° '~ ~~`""~~ ~"~'°~ ~ p days ~~-,c~B' . {B) Landlor shall inform Tenant of any objections to said Plans within days after receipt; then Tenant within fifteen (15) days shall de aver to Landlord corrected Plans, which Landlord shall accept or reject within the next days. Failure to inform Tenant of objections within said time periods shall be deemed Landlord's waiver of objections. 5 (C) If Tenant's Plans are approved, it shall not be deemed Landlord's undertaking that they conform to law or impose any liability on Landlord. Tenant shall immediately apply for all governmental permits necessary for Tenant's work. After such permits are issued and Landlord has completed the work, if any, Landlord has agreed in this Lease to do, Tenant agrees to promptly commence and complete Tenant's work in conformity with said Plans and with all legal requirements and with the requirements of the Building Department having jurisdiction, and before commencing Tenant's work, Tenant will deliver to Landlord all of the following: (i}-,4 ~enrraeter's eemP;-=avian bend, r~°°~ °° ''^'"""' " Comprehensive general liability insurance naming Landlord as additional insured for at least.A.~000,000 combined single limit for bodily injury and property damage, `and (3) Contractor's written Indemnity :agreement that Contractor agrees to indemnify, save and hold harmless Lanolord, its agents, employees and assigns, from all liabilities, claims, losses, bens, damages and suits of whatsoever nature for personal injury, death or property damage alleged to arise out: of the work performed under the contract, whether by Contractor or by any subcontractor, and whether asserted against Landlord or Contractor, and _. , 7EN.~ir;r / ~ t `y ~ ~Y. rort~fmmmsn.nxnr_x ' 'KIMCHAN.374/~ S/?R `./ • PAUf •2 ~ , , , RIDER 'i0 LEASE DATED A5 OF SEPTEMBER. 18, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CNAN, A5 TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. (D) Tenant shall comply with alt legal requirements during its work; and when completed, Tenant's work shall comply with all laws, ordinances, regulations or orders of public authority, and with all Fire Insurance Rating Organization (or similar body) requirements and the liability insurance company's requirements which insure against accidents connected with the Leased Premises, and Tenant shaTT obtain and deliver to Landlord the certificate of occupancy (or its local equivalent if the same are not issued in the jurisdiction) for the Leased Premises.• (E) If Landlord or its representatives inspects the Leased Premises and determines that Tenant's work is not being done in accordance with the approved Plans, Tenant shall correct any deficiencies or omissions immediately. (F) Tenant agrees not to permit any mechanic's or other lien to be filed either against the Leased Premises or the Shopping Center or Tenant's leasehold interest by reason ofwork; • 1-abor,..ser-vices ..or materials supplied to Tenant or anyone holding the Leased Premises through Tenant. If any lien is filed, Tenant shall within ten (10) days after notice of the filing, cause it to be discharged of record, failing which Landlord, in addition to any other right or remedy, may (but shall not be obligated to) discharge such lien by deposit or by bonding proceedings, and if Landlord so elects, it may compel the prosecution of a foreclosure action by the lienor and pad the amount of the judgment or may pay the claim for Tenant's account without compelling the' lienor to foreclose. Any amounts so paid to satisfy a judgment or claim, or deposited or paid to obtain a bond or discharge the lien, with interest thereon at the rate of 12% per annum or the highest legal rate (whichever is less) from the date of payment, shall be paid by Tenant to Landlord on demand as additional rent. Nothing herein shall be construed as the consent or request of Landlord, express or implied, to any contractor, subcontractor, ]aborer or materialman for performance of labor or furnishing of materials or as giving Tenant the authority to contract for or permit the rendering of any service or the furnishing of any material that would give rise to the filing of any lien. (G) Tenant shall require -Gem=as~•e+= to furnish to both Tenant and Landlord on completion of the work a guaranty, for a period of one (1) year from final completion of all work, that all work and materials will be free from all defects and that all apparatus (i.e., air-conditioning equipment) will develop capacities and characteristics specified in the approved Plans upon use, and that whenever within one (1) year of the final acceptance of the work, Contactor is notified in writing by either Landlord or Tenant that an item of equipment, material or workmanship is defective or in some other way does •not meet the. specifications requirements, Contractor agrees to immediately replace, repair or otherwise correct the defect or deficiency without cost to Landlord. Additionally, Tenant agrees that the following items of work shall be guaranteed for periods in excess of the •one (1) year specified ' herein: Motor Com ressor Units: for five (5) years= Exterior Walls:. for two (2) years (pguaranty against air and moisture leakage),; Roofing: for two (2) years. • (N) In the event Tenant`s work involves the construction of a• demising wall, Tenant shall physically indicate the proposed location of the demising wall at the Leased Premises, notify Landlord's architect and/or representative that the location has been marked and that construction of the wall is about to begin, and give Landlord a reasonable opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (I) For any Tenant work that involves Qenetration of the roof surface, Tenant agrees to employ Landlord's roofing contractor, thereby ensuring that the roofing bond and/or warranty will remain in fuTi force u:.~~. ~ ~ 7fl1AIJ1 ~. ~--~ ,L . ` P14~E 3 ~ , RIDER. TO LEASE DATED AS OF SEPTEMBER.18, 1991, BY AND BETWEEN KIMCO OEVELOPMEN7 OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. and effect, and the maintenance of Tenant's roof work will be the sole responsibility of Tenant, including repair, of adjoining areas of the Shopping Center that might be affected due to water penetration through Tenant's roof work. 38. Prior to the commencement of the Lease, Tenant shall, at its own cost and expense, install and maintain afire extinguishing system within the hood and duct of the cooking facility which satisfies the requirements now and hereafter established by Landlord's property insurer and to provide Landlord with a certificate evidencing that same has been installed. Tenant further agrees, at its own cost and expense,• to maintain the system throughout the term of the Lease. 39. Prior to the commencement of the Lease, Tenant shall, at its own cost and expense, install grease traps ' i~remises~connecting all lines from 7enant.'s kitchen to the. main sanitary branch and exhaust. system respectively. _. The installation of said grease traps shall comply with all local laws and regulations. ~'..:~ ~c~r~.u,,:,(.e~/ ,r_y /.~~ .~G. ,p.~e.~,J'~'c7'Gr~-.c_ ..v1-a~4~.C(~ o~c-1 `,t-,^-z-~=~e.. 40. Tenant acknowledges that Article 9(C) of the Lease prevents, the use of the Leased Premises in a manner that shall be offensive and that ' unless property conducted, the operation of a restaurant can cause there to be an offensTVe odor in and about the premises. Tenant agrees that it shall immediately, upon the request of Landlord, install such ventilation ' and other equipment as may be necessary to relieve the premises and the adjoining and surrounding premises from any offensive odor caused by Tenant's business operatTOn and that Tenant's failure to do so shall constitute a default hereunder. Landlord shall have ail rights permitted . under law to enforce a claim for its damages including, but not limited to, the right to cancel this Lease and Tenant shall defend, indemnify and • hold Landlord harmless of and from any loss, cost or expense arising out of odor or other conditions in the Leased Premises. . 41. It is understood that the Leased Premises are presently occupied by another existing tenant under a different lease, which lease is due to be terminated on September 30, 1991. In the event said other tenant fails to vacate the Leased Premises by September 30, 1991, and Landlord is delayed in obtaining possession from said tenant, then Landlord will deliver possession of the Leased Premises to Tenant as soon as possession is obtained by Landlord. 42. Landlord agrees that during the term of the Lease and so long as Tenant is in possession and is not in default hereof, Landlord will not hereafter lease any portion of the Shopping Center to a tenant whose principal permitted use is the operation of a restaurant serving Chinese food. The aforementioned restriction shall not apply to those stores marked as "1" and "2-4" on the Exhibit "A" attached hereto and made a part hereof. ~ ~ -. END OF RIDER '~--~ ~ee. ~~ ~ _.,~,~-~ `7~-tee. ,~c.~, ,-yw o~,~.e:~a.,~-t.a-K~" +Frr+it n•s• 1'c^lA11T .,. • -'---~ ~:, ' s . _ _ •_ ;XIMCHAN.374/LS/TR ' ~ r ~ ' ' ' PAGE 4 RIDER TO LEASE DATED A5 OF SEPTEMBER 18, 1991, BY AND BETWEEN KIMCO DEVELOPMENT OF GIANTS, INC., AS LANDLORD, AND KIM CHAN, AS TENANT, FOR PREMISES LOCATED AT UPPER ALLEN, PENNSYLVANIA. EXHIBIT "A" THE LEASED PREMISES SHAH BE A STORE CONTAINING APPROXIMATELY 1,500 SQUARE FEET KNOWN A5 STORE "5" LOCATED WITHIN THE AREA HATCHED ON THE PLOT PLAN OF THE SHOPPING CENTER (SITE ND. 374), SHOWN BELOW. -- --- `_- _ , ~'~ ~ ~ _ s ~i I l0 4 6 9 6 L-•d , 1 3 ~ '~ I 1 ~~~ ~ I -- ~--~ 7Efii:E.T ~ t, p s ~ ~ ~~ ~~ ~~ ~~V i ~ F r ~ G C7 -*7 r _'m c.:~ ~ r _~ __~ •~~ -`; -t m