HomeMy WebLinkAbout99-02572
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HAMPDEN CENTER, INC.,
Plaintiff
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
v.
Jq /), '-r':
NO . c, . ,))' 72. w......J f t...-
EAST COAST SUPPLEMENTAL
NUTRITION, INC.,
JOEY ARENDT, VIPAN K. SOOD
and ROSANNA V. SOOD,
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
FOR MONEY AND FOR POSSESSION OF
REAL PROPERTY
Defendants
NOTICE OF JUDGMENT BY CONFESSION
To: East Coast Supplemental Nutrition, Inc., Defendant
You are hereby notified that on Q#~,:t' J fJ' , 1999, the
following judgment was entered against you in the above captioned
case.
Judgment by Confession in the amount $15,141.19 and for
possession of all that certain real property located at and known as
Space Numbers D-14 and C-4, Hampden Centre, 4830 Carlisle Pike,
Mechanicsburg, Pennsylvania 17055, together with reasonable attorneys
fees in the amount of $1,000.00.
Date: 0/J,.....1 .2-9 ~ /9<,'/
,
(,,;'1. ~-t2 e.~ j .
Prothonotary ,
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.
I::""'" ((... "--"'- '
CUMBERLAND COUNTY L-mrtER-REFERAAh-SERVICE Q
OI1e-~Squa~e .J I J...:L...,~ "'<-....~~
Carlisle, PA 17013
(:7..1.7.) 240-6200 71/...1. 'IV..)/(. '-
'T~...("-- J~, 1_ \,eu' '1<'0- "/{OJ
I hereby certify that the fbllow1ng 1S the address of the
defendant stated in the certificate of residence:
East Coast Supplemental Nutrition,
510 North Front Street
Wormleysburg, PA 17043
4830 Carlisle Pike
Mechanicsburg, PA 17055
Inc.
f1W1YC~
Tracy L. McNamara, Esquire
Attorney ID ~72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Plaintiff
,
HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
NO.
EAST COAST SUPPLEMENTAL
NUTRITION, INC.,
JOEY ARENDT, VIPAN K. SOOD
and ROSANNA V. SOOD,
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
FOR MONEY AND FOR POSSESSION OF
REAL PROPERTY
Defendants
NOTICE OF JUDGMENT BY CONFESSION
To: Joey Arendt, Defendant
."1-
You are hereby notified that on ~...J' J C, -
following judgment was entered against-tou in the
case.
, 1999, the
above captioned
Judgment by Confession in the amount $15,141.19 and for
possession of all that certain real property located at and known as
Space Numbers D-14 and C-4, Hampden Centre, 4830 Carlisle Pike,
Mechanicsburg, Pennsylvania 17055, together with reasonable attorneys
fees in the amount of $1,000.00.
Date: Q~ ;)9 Iv'l'}
,
/1 t...' /J 4- '
L-l.tA A K.. l"!_ .
Prothonotary ,
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.
ClJ!ImERLAND COUNTY LA~IYER REFERRAL SERVICE
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
I hereby certify that the following is the address of the
defendant stated in the certificate of residence:
Joey Arendt
107 East Allen Street
Mechanicsburg, PA 17055
-
R'
Tracy L. McNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Plaintiff
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.
A: Rosanna V, Sood, Defendant
Por este medio sea avisado que en el dia de de
1999, un fallo ha sido anotado en contra suy en caso mencionado en el
epigrafe.
Fecha: el dia
de
de ),999.
protonotario
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE
ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR
ASISTENCIA LEGAL.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
Por este medio certifico que 10 siguiente es la direccion del
demandado dicho en el certificado de residencia:
Rosanna V. Sood
1045 Snapper Dam Road
Landisville, PA 17538
~a1!j~
Tracy L. McNamara, Esquire
Attornev ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-50DO
Abogado del Demandante
, '.. I ~ " .,': ',' . , ~ -. '\., ". .
HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 9'1,.2" 7.:l ~ 7;_
EAST COAST SUPPLEMENTAL
NUTRITION, INC.,
JOEY ARENDT, VIPAN K. SOOD
and ROSAln~A V. SOOD,
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
FOR MONEY AND FOR POSSESSION OF
REAL PROPERTY
Defendants
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of
Attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for Defendant, Rosanna
V. Sood, and confess judgment in favor of Plaintiff and against
Rosanna V. Sood as follows:
Amount Past Due
Unpaid Balance of Instrument
$l,G01.64/month through 12/31/99
Attorneys Fees
$ 1,601.64
$ 12,818.54
$ 721. 01
TOTAL
.-L~
Tracy L. McNamara, Esquire
Attorney ID ff72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendant
Rosanna V. Sood
. --, --" ", ' , .' , . , ~--_:-::- ~ - ,-. '......- - ~,- . ~ ' .
~
HAMPDEN CENTER, INC.,
IN THE COURT OF COMMON PLEAS,
CUMBER1,AND COUNTY, PENNSYLVANIA
, ,
' .
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Plaintiff
v.
NO.
'1<;'. -" 'J 7;z. ~'.J. T;...-
EAST COAST SUPPLEMENTAL
NUTRITION, INC.,
JOEY ARENDT, VIPAN K, SOOD
and ROSANNA V. SOOD,
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
FOR MONEY AND FOR POSSESSION OF
REAL PROPERTY
Defendants
CONFESSION OF JUD~ENT
Pursuant to the authority contained in the Warrant of
Attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for Defendants and
confess judgment in favor of Plaintiff and against Defendants as
follows:
(a) Possession of the real property located at:
Hampden Centre
Space Numbers D-14 and C-4
4830 Carlisle Pike
Mechanicsburg, PA 17055
(b) Attorneys Fees
~iiLAO~
Tracy L. MCNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendants
address of 107 East Allen Street, Mechanicsburg, Cumberland
County, Pennsylvania 17055 ("ARENDT"),
6. Defendant, Vipan K. Sood, is an adult individual with
an address of 1045 Snapper Dam Road, Landisville, Lancaster
County, Pennsylvania 17538.
7. Defendant, Rosanna V, Sood, is an adult individual with
an address of 1045 Snapper Dam Road, Landisville, Lancaster
County, Pennsylvania 17538.
8. East Coast, as Tenant, and Plaintiff, as Landlord,
executed an Agreement of Lease prepared August 19, 1998, for
1,360 square feet of commercial space known as Space D-14 located
in the Shopping Center ("LEASE PREMISES"). A true and correct
hereof as "Exhibit A".
copy of the Agreement of Lease is attached hereto and made a part
9. On or about August 29, 1998, Vipan K. Sood and Rosanna
V. Sood executed a Lease Guaranty, whereby they "unconditionally
guarantees the full and prompt payment of rent and all other sums
required to be paid by Tenant under the Lease." The Lease
Guaranty is attached to the Lease Agreement as "Exhibit G".
10. On or about August 31, 1998, Joey Arendt executed a the
Lease Guaranty, Lease "Exhibit G", whereby he "unconditionally
guarantees the full and prompt payment of rent and all other sums
required to be paid by Tenant under the Lease."
11. With the consent of Landlord, on or about October 1,
1998, East Coast COmmenced Occupying alternate premises in the
Shopping Center known as Space C-4 ("ALTERNATE PREMIF.ES").
- :;. '.' .
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month of April, 1999, and other charges when due as required
under the Lease. The amount past due and owing by East Coast is
$1,601.64.
23. East Coast is further in default under the terms and
conditions of the Lease in that East Coast, without prior notice
to Landlord and without Landlord's consent, has abandoned the
Premises.
24. The Lease provides, inter alia, that, in the event of a
default by East Coast, Plaintiff may confess judgment against
East Coast including attorneys fees in the amount of five percent
(5%) of the amount claimed.
25. The Lease provides, inter alia, that in the event of a
default by East Coast, Plaintiff may accelerate the monthly rent
and confess judgment against East Coast including attorneys fees
in the amount of five percent (5%) of the amount claimed.
26. Based upon the foregoing, East Coast is liable to
plaintiff as follows:
TOTAL
$ l,6D1.64
$ 12,818.54
$ 721. 01
$ 15,141.19
Amount Past Due
Unpaid Balance of Instrument
$l,601.64/month through 12/31/99
Attorneys Fees
WHEREFORE, Plaintiff demands judgment in the amount of
$15,141.19 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT II: CONFESSION OF JUDGMENT FOR MONEY
~en Center. Inc. v. Joey Arendt
27. The averments set forth in paragraphs 1 through 26 are
incorporated herein by reference as if set forth at length,
28. East Coast has defaulted under the terms and conditions
of its Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
29. Pursuant to the terms of the Lease Guaranty, Joey
Arendt is liable for East Coast's default.
30. Based upon the foregoing, Joey Arendt is liable to
Plaintiff as follows:
Amount Past Due
Unpaid Balance of Instrument
$l,601.64/month through 12/31/99
Attorneys Fees
$ 1,601.64
$ 12,818.54
$ 721.01
$ 15,141.19
TOTAL
WHEREFORE, Plaintiff demands judgment in the amount of
$15,141,19 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT III: CONFESSION OF JUDGMENT FOR MONEY
~nter, Il1.!;.. v. Vipan K. ~
31. The averments set forth in paragraphs 1 through 30 are
incorporated herein by reference as if set forth at length.
32. East Coast has defaulted under the terms and conditions
of its Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
33. Pursuant to the terms of the Lease Guaranty, Vipan K.
Sood is liable for East Coast's default.
""I~...":',
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34. Based upon the foregoing, Vipan K. Sood is liable to
Plaintiff as follows:
Amount Past Due
Unpaid Balance of Instrument
$l,601.64/month through 12/31/99
Attorneys Fees
TOTAL
$ 1,601.64
$ 12,818.54
$ 721. 01
$ 15,141.19
WHEREFORE, Plaintiff demands judgment in the amount of
$15,141.19 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT III, CONFESSION OF JUDGMENT FOR MONEY
Hamoden Center. Inc. v. Rosanna V. Sood
35. The averments set forth in paragraphs 1 through 34 are
incorporated herein by reference as if set forth at length.
36. East Coast has defaulted under the terms and conditions
of its Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
Sood is liable for East Coast's default.
37. Pursuant to the terms of the Lease Guarant.y, Rosanna V.
Plaintiff as follows:
38. Based upon the foregoing, Rosanna V. sood is liable to
Amount Past Due
Unpaid Balance of Instrument
$l,601.64/month through 12/31/99
Attorneys Fees
TOTAL
$ 1,601.64
$ 12,818.54
$ 721.01
$ 15,141. 19
WHEREFORE, Plaintiff demands judgment in the amount of
$15,141.19 in accQrdance with the terms of the Lease as
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authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT III: CONFESSION OF JUDGMENT FOR
POSSESSION OF REAL PROPERTY
39. The averments set forth in paragraph 1 through 38 are
incorporated herein by reference as if set forth at length.
40. East Coast has defaulted under the te~lS and conditions
of its Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
41. The Lease provides. inter alia, that in the event of a
default by East Coast, Plaintiff may confess judgment against
East Coast for possession of the Premises together with
reasonable attorneys fees of not less than $1,000.00.
WHEREFORE, Plaintiff demands judgment for possession of real
property together with reasonable attorneys fees in the amount of
$1,000. DD in accordance with the terms of the Lease authorized by
the Warrant appearing in the attached Lease plus interest, costs
of suit and attorneys fees.
Respectfully submitted,
Date: l{ ,;)1- q 4
JO;;;;;;X;;~
Stephen c. Nudel, Esquire
Attorney ID #41703
Tracy L. McNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
S~r:tiOl1 )
S~r:Lion ?
Secti on 3
Section 4
Section 5
Section 6
Section 7
Section 8
Section 9
Section 10
Section 11
Section 12
Section 13
Section 14
Section 15
Section 16
Section 17
Section 18
Section 19
Section 20
Section 21
Section 22 -
Scc'..:ion 23
S8ction 24
Section 25
Section 26
Section 27
Section 28
Section 2~
Section 30
Section 31
Section 32
Section 33
Section 34
Section 35
Section 36
Section 37
Section 38
Section 39
Section 40
Section 41
Section 42
!lxhiJ;>i..tJ1
I1AII
"B"
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"E"
Up"
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Ver.7.09.98
MlRIilllillNT OF LllllJlll
Wlliill.&li12 :
III1MPDEN CENTER, INC.
TIllil\I:IT :
EIIST COAST SUPPI,EMENTIIL NUTRITION, INC,
,'\GRlmr.mNT OF I~lmsc:
INDllX
Prf~mi fH:!O
Term
Fixed Rent:
Pcrcent<t9p. Rent
GroGG S<tlp.n Dcfi.np.d
Addi.tiolli'll Rent
Common Areas .
Construction of Premises
Use.
Utilities . . . . ,
Rules and Regulations , ,
Change of Improvements by Tenant
Repairs and Maintenance ,
Waiver of Liability by Tenant
Indemnification and Insurance
Signs . , . , . . , , , , . .
Assignment and Subletting . .
Repair After Casualty . . . .
Condemnation . . . . .
Landlord' 8 Remedies Upon Default.
Discharge of Liens . . .
l,iability of Landlord . .
Ri.ghts of Landlord
Subordination to l-1ortgage
No Waiver by Landlord
Vacation of Premises
Memorandum of Lease
Rent Demand . .
Not.ices . . . . . . . . .
Applicable La\</ and Construction
Force Majeure .
Landlord's Lien
Quiet. Enjoyment
Holding Over
Brokers . . . .
Capt iona . .
Variation in Pronouns
Lenders' Approval . .
Security Deposit
No Income Participation
JlazardouG Substances
Binding Effect ....
Legal Descript ion of Shopping Center
Description of Premises
Landlord' IJ Work
Ten<1nt'r. Work
Rules aml Regulations
Signage
Guaranty
i
Page No.
1
1
2
3
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, ..
LANIlWRD,
LANDLORD'S ADDRESS,
TENANT,
TENAN1" S ADDRESS,
TENANT'S TRADE NAME,
PRElHSES,
USE,
LEASE
COMMENCSMENT DATE,
RENT
COI~MENCEMENT DATE,
TERMINATION DATE,
'!'ERM OF LE/\SE,
IINNU/\I. FIXED RENT,
MONTHLY INST/\LLMENTS
OF FIXED RBNT,
PERCENTAGE RENT,
REFERENCE P/\GE
prepared August 19, 1998
i.
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HAMPDEN CENTRE
IIAMPDEN CENTBR, INC.
444 Park Avenue South
Suite 302
New York. NY 10016
E/\ST CO/\ST SUPPLEMENT/\L NUTRI'rION, INC,
510 North Front Street
Not"m10yr;bllt"g, PA 17043
EAST CO/\ST SUPPLEMENTAL NUTRI'rION, INC.
1,360 square feet (see Exhibit liB" for
outline of Premises) aka Space 0-14
Subj eet to
operate a
performance
existing Leases I Tenant may
business selling high
and nutritional drinks.
f\ugust 24, 1998
The earli.er of the date Tenant opens fo)'7
business or ninety (90l days after
Landlord substantially completes i.ts work.
Three years from the last day of the month
in which the Rent Commencement Date
occurn.
3 years, beginning on the Rent
commencement Date and ending on the
Termination Date (unless sooner terminated
pursuant to this Lease) .
Lease Year 1.....$ 14,280,00
Lease Year 2.....$ 14,715.20
Lease Year 3.....$ 15,150.40
Lease Year 1....,$ 1,190.00
Lease year 2....,$ 1,226.27
Lear::e Year 3.....$ 1,262.53
N//\
INITIAL J\NNUAL
PROI~OTIONAL FmID COST, $0, 30/SF annually payable at the
l:.cginning of each lease year.,
TENIINT'S PRORl\TA SHARE, 1.0\ (Subject to a Shopping Center of
228,192 SFI
SECURITY DEPOSIT,
REAl. ESTATE BROKER
DUE COMMISSION,
RENEWI\L OPT] ONS,
$1,190.QO
Bennett Williams, Inc.
pl:ovided that Tenant has not defaul ted
\mder the termG hereof, Tenant is granted
on~ 3,'year opUon to renew t.hiH Lease.
ii
LEI\SE
THIS LEASE made and entered into between HAMPDEN CENTER,
INC" os [,andlord and EI\ST COI\ST SUPP[,EMENl'I\L NUTRI'l'ION, INC" as
Tnnillll. Qvidenc.:clJ tilt] Co] lowi.ng understandings and agreements. The
Rt~(ercl1ce Page n.t:t<'lched hereto, i.ncluding all terms defined
thereon, is incorpOl-ated ilS part DE this Lease.
WITNESSETH, that for good and valuable consideration,
each to the other in hand paid, the receipt whereof is hereby
acknowledged, the parties agree as follows:
PREMI,~liS.
s.~QlL..-:1... (a) Landlord leases to Tenant and Tenant rents from
Landlord the Premises having the frontage and depth indicilted on
the Reference pnge (all dimensions herf1in are measured from center
or the wall to center of the W<lll. for all party wallG and (rom the
ol1tt'lide Lace of all ext.erior walls and store fronts). located in
the building (the "Buildingll) commonly known as Hampden Cel1tr(~
("Shopping Center" l, The Shopping Center is more particularly
deGcr:Jbed by meter; alia boulld:, on R'fll.iv.LL~~ c1ttilched hereto and
1ll,Hle i1 Pfll-t hereof by rerereIlC(~,
(bl The Premises are outlined in red on Exhibit IIB"
att.ached hereto and made a part hereof by reference, IlTenant's
proportionate Share" as used in this Lease shall mean a fraction,
the numerator of which is the gross leasable area of the Premises
and the denominator of which is the gr-oBs leasable area of the
Shopping Center, Premises are cross-hatched on Exhibit lIBI1 attachecl
hereto. Landlord's calculation of Tenant'r, Proportionate Share is
uS indicated on the Reference Page, GloOSS leasable area of the
Shopping Center. means all ground floor area contained in the
Shopping Center designated for tenants' exclusive occupancy,
(c) Landlord expressly reserves (1) the use of the
exterior rear and side walls and roof of the Premises and the
exclusive use of any space between the ceiling of the Premises and
the floor above or the roof of the Building, (ii) the right to
install, maintain, use, repair, and replace the pipes, ducts,
condui.ts, and wires leading into or running through the Premises
(in locations whi.ch will not materially interfere with Tenant's use
L1lnrc'Jf). (i ii) the l'ight in itn Gale and ablJolute discretion to
expiHld, enlarge, make alterations or additions to, and to build
.1dJit:ionill stories on, the Shopping Center and to build other
buildings or improvementl1 on the Common Areas (as hereinafter
(l(>f illed) , and (iv) the right, upon sixty (GO) days prior written
lloticQ to Tenant:, to l:.ransfer and remove Tenant from the Premises
to other available tenant space of equal area and equivalent rent
in the Shopping Center. (Landlord shall bear the expense of said
u-ansfer or removal as well as th~ expense of any renovations or
;:11 tel-ation~ necessary t.o make the new space conform substantially
in ilrrangement and layout with the Premises covered by t.his Lease) ,
The within reservations in favor cf Landlord are in addition to the
rights granted to Landlord under Section 23 hereof,
I~BM
~i..Q1L~, (a.) The Lease Term shall be as indicated on the
Refer(>nce Page. The term "Commencement Date" means the day after
L;mdlord's work on the Premi.ses, as specifically set forth in
S.t:'J;.tjQ.n---..-6 hereof, will be completed to the extent reasonably
n:>quh:ed, for the inst.allation by Tel1~nt of Tenant's fixtures,
furnir;hill95 and equipment or if no work is to be perfonned by
L~ndlord pursuant to ~ti.on 8_ hereof, on the date keys are
df"l ~v(~J~ed to Tenant by Landlord. Landlord aha11 notify Tenant in
v:ri t i I1g of the date on which Lilndlord' r; work on the Premi 50S h,1G
IJPP!1 m~ wi] 1 be completc"d and of th(~ Commencement Date, The- pal-ti(~!3
a~:p-.'"'e to t~ndonH.~ this Lear;c to identify the day, month and yei1r
that U1(> Commencement D.1.le .1ctuitlly occurs,
(bl If Lilndlord in required to pe'rform work pursuant to
", 'f " ' ' ,,' . '.," , .:':,' -,\ -!' "" - ,"0." ,'. " ," ,," ,,"" "\' . '- " , ,I A"
~s;.tl.nn_O. hereof, when the <letual Cowmencement Date is established,
the p,1rtien wi 11 prompt.ly enter into a Supplement to Leiwe,
pr~pi1rpd by I.illldlonl, ntipulatill9 the Commencement Date and the
Expit~<1tjon Dnte of the Tenn.
(el The t[!rm nJ~ease Yearn as used herein shall begin on
the COl11l11t!nccment Date ilnd end twel va months therefrom.
Cdl L.1Jldlonl hereby grant:r, to 'I'pniHlt thp rigl1t nllr]
option to extend the Term of this Lease for the option periods
indic,lted in the Renew;1l Option Section of the Reference Page (each
<l "Renewnl Termtl). Tenant shall notify Landlord in writing of its
elect.loll to extend thi.!] LenGe (or each Renewal Term not less than
l1ix (6) lllontho nor more than twelve (12) months prior to the
expi.ration date of tile then exinting term. Each Renewal Term shall
be upon i'l.ll of t.he terms, covenants, ilnd conditions of this Lease
except that the 1\nllunl Fixl.?d Rent and Percentage Rent pilyablc
durillU' Gllch Renewal Term 1311.1.11 be aG Get forth in ~ and
1Ji!1 hereof, reGpectivcly. Tenant shall have no right to exteJld or
n'~l1ew thiG Leanc if it i r. in default hereunder at the time of
giving itn notice of rellcwi\l, nor shall any renewal notice be
effect: ~.vc if 'J'cn;mt i8 in default hereunder no ot the first day of
tJ1C' extended term which wan the subject of Guch llotice.
EJXI,ILR<;tn:
~>-I;.r.t.LQn-1. (a) Tenant agrees, without notice or demand and
without any deduction or Getoff, to pay to Landlord, at Landlord's
l\ddrefiG r.hown on tile Reference Page, or at such otlwr place as
Lalldlord may designate, as a f ix.ed minimum rent (or the:! Premises
per t.eflse Year, the Annual Fix.ed Rent indicated on the Reference
Page for r;uch Lease Year in fixed equal monthly installments during
eilch 1~0.a5e Year equal to the Monthly Installments of Fixed Rent
indicated on the Reference Page (or such Lease Year, each Montllly
Installmcmt of Fixed Rent to be payable in advance on the first day
of each month during the Tel-m. Tenant agrees to pay to I~andlord, if
i'lsGPr;r;ed by the jurisdicti.on in which the Shopping Center is
locilt,o:~d, ilny sales or excise tax imposed, assessed or levied in
connection with Tenant's payment of the Annual Fi.xed Rent.
(b) Upon execution of this Lease, Tenant shall deposit
with Landlord (i,) the Security Deposit as indicated on t.he
Reference Page to be held by Landlord during the Term pursuant to
t.hr~ pnwir.ions of. S~_C;:J:j_QJt_J.:l h~reof; nnd (ii) the first Monthly
Ill:;l:;d Imcllt uf Fix(>(l npnt, and olle mOl1th'n worth of ArtditiOlllll R~llt.
(,1:; Ill'll'ill.lf:t0J' dl'fill(.ti). TI1("! fundfi fin d('pm:dt~d pun-;uanL to lLC'lll
(.1 i) of lhir; SUbpaJ-agJ-aph (1)) shall be applied to the MOllLllly
JnGt:a) lment of Fixed Rent and the Additional Rent due [or the [in>t
Cull. month of the Telln.
(c) Tenant' GobI i,galion to pay rent (as defined in
~;Ubpilri1gnlph 6 (cl) Gllall begin on the earlier to occur of the date
(:;(3;i<1 d;'ite is hereinafter referred to flS the "Rental Commencement
Dat/?") upon which Tenant sh<)ll open for blH3iness in the Premises or
till? dill' after the expiration of the "Fixturing Pel-lad". The
Fixturing Period 13ha11 begin Oil the Commencement Date and continue
for the number of dayn r,pecified on the Reference Page. Rent duc
10]- .'IlY period which is lc~:;r:; than a calendar month, whether prior
to the Rental Commencement Dat.e or after the expiration Date, shall
be pnll-ated on a. daily bi'l.5is and shall be computed on the basiG of
T0n;~lH'r. monthly rental pa.yments (uti.lizing a thirty (30) day month
fer purpor;e:; of rouch computation). Tenant shall pay t.o Landlord the
Jcnt fOJ" p.1.ch 1111C'h d,~y (i) concur:rcntly with the !irnt fvlolithly
lnf:t,lllmr>llt of Fixf?Cj Ri.'llt due hereund(~rj (ii) upon vac.iting the
rn'mi!~('fi as herein provided; or (iii) upon demand from L.indlord, as
the Cilr:;C 1't\.iy be.
(d) 111 the e\'ent Tenant cxercir,eG its ri.ght to extend
the 1'(>1'111 for a ;~I~IlP"".,'ll Tc:orm, the Annual Fixed I{ent paYlibl(' during
tIll' F'1'I1f>u,,1 Tpli\l :>h,,:11 1;:.-' '-:"1l1,11 to tIle ,-,mounl inuicatC'd in t.he
2
Hcnewt\l Opti.on fiCction of the Reference Page for such Renewal Term
ill rixf"c1 (lC}llill monthly innt.nllmentfi equal to the Monthly
Inr.I.,lllllf>lll" of 1.'ixN! Ur>llI' indir,'I'l"'!d in till"'! Rpllnwnl. Opt.ioll r:i{~Ct:iOI1
01 IIIP IU'!","(",H'P PallP IOl' nlldl 1~0.llPw",l ']'('1"1n Pilch to IIp- pilyablp. ill
,HIV;IlWf' (III II,r" f i nil' d.-IY of p;)eli l1Ionth dUJ'i WI f>llr.h l{cncwn.1 Term.
(el 'j'PIl.,nt reco~Jlli7.en lIlat late payment or illlY l'ClIL OJ;'
other ollln clue hcn:!U1Hlr>l' wi 11 I~(>nult in administrative expellse to
Li'lndlonJ, the extent: of which additional expenoe is extrmnC'!ly
di f [i ell) t and ccollomie,1l1y i mprilctJcill to ascertain. Tenant
therefore ,1~Jl~eeS that if: rent or nllY other sum is due and unpaid
fifteen (1.5) dayn after said amount: i.u due, such amount shall be
increaned by ,1 late ch<lrge in an amount equal to the greater of:
(al Fifty Dollars ($50.00) or (b) a sum equal to five percent (5\)
of the unpaid amount. The amount of the late charge shall be
reaDseGsed and added to Tenant's obligation for each succer.sive
monthly period until pai.d, The provisions of thiD Section sllall not
in any WilY affect Landlord's remedies pursuant to Sect:iolL2..Q of
this LeaDe.
PERCr,;tITM1E RENT
~~.' la) In addition to Annual Fixed Rent, and as a
material inducement for Landlord to lease the Premises to Tenant,
Tenant agreeo to pay to Landlord during each I~ease Year the
Percentage Rent indicated on the Reference Page for such Lease
Year. During each Renewal Term, Percentage Rent shall be equal to
t.he Percentage Relit indicated in the Renewal Option secti.on of tlle
Refcl'ence Pagf~ foJ." f1llch Renewal Term.
(b) In any Lease Year in which (i) Tenant shall cease
conducting businesG in the Premises, (ii) the Term is terminated,
or (iii) there shall be an abatement of Annual Fixed Rent, so that
the Lease Year is less than twelve (12) calendar months, Tenant
Rha11 pay to Landlord prori'itcd Percentage Rent equal to the amount
by .....'hich the percentage of Tenant's Gross Sales Get forth on the
Refen!lIcc P.1ge for such lCIH;cr period exceedr; the Annual Fixed Rel~t
relid during the prior 01- subsequent Lease Year multiplied by the
number o( months in the shortened Lease Year divided by twelve
112) ,
(c) On or before the twentieth (20th) day of each
calendar month during the Term, Tenant shall deliver to Landlord a
complete and accurate statement, signed and certified by Tenant,
Ghowi.ng in detail GrOGS Salea (as hereinafter defined) for the
previous month and GrOGS Salen for c:ach prior month during the
current Leaze Year.
(d) (i) During the first Lease Year, Percentage Rent
shall be payable in one lump Bum no later than thirty (30) days
after the end of the first r...ease YC,3r. (iil Commencing with the
r;econd Leilsc Year imd continuing throughout the term of this Leasp.,
P0rC(>nt"aqc R~Ilt. r>lJilll he pf'Yc1lJlr~ 011 .1 mOllthly bar;iB as fo) lOWG; I~('J
1.-tI01' t hall thirty (30) d<1.Ys bc>fon: the firl1t dc\y of p.ach JA"c1f;(>
i'eat", L<1.lldlortl G11..11 r,cnd Tenant an eGtimatc of annual Per-centagc
Rent due for t:aid LealJe Year baGed on tl1e .1mount of Percentage Rent
pilid by TCllilnt in the prior cOnl;ecutive twelve (12). months. The
estimate Ghilll be adjuGted to equal twelve (12) times the average
montl~] y Percentage Rent due if the Tenant has not been in
POSIH?Sr;i on of the premises tor t.....C'l ve (12) months. On or before the
f irr.t of e;\ch month of said LeaGc Year, Tenant 5hall pay to
Landlord one-twelfth (1/12) of the clJtimated annual Percentage Rent.
due [or tIle said Lease Year. (iiil Within (30) days after the end
of each I..c.asc Year, Tenant nhall del j vel- to Landlord a complete and
accm-ate Gtatement, l'iigned and certified by Tenant, showing (a)
Gronr. Sales for Guch Lease Yeal~; and (b) the computat1cn of:
I'el-centag~' Rent (or G1.:o:h Lease YP,u'. In the event such statement
n~flectr:; that T011ant ower; Landlord Percentage Rent in addition to
tll~ r;um of monthly P'~rcentage Rent payment,G previouGly made during
suel) Lease Year, Tenant nhall pay the amount of such additional
3
'.
Percentage Rent to Landlord at the time such statement is delivered
to Landlord. In the event such statement reflects that the sum of
Hlonthl y Percentage Rent payments previously made during such Lease
Veilt: exceeds the Perc':!l1t:agc Hellt actually due (Of such Lease Year,
the amount of Guch nxccr;s nhilll be credited against the next due
monthl Y p"Yll1rml:r; or P~t'r::r:IlI._.1C'J0. R(!IlL hereunder. If such exec-r;n
l:hOIlJd ocr:III' ill till":! l.1flt I.r"nor< Y0.ilr or th8 Term, r~~Hldlord shall pny
tllP amount of nuch exeCG::; to Tenant within thirty (30) days after
H"coipt of rille!! r.tntcmeJ1t.
(~) During tho Term, Tenant shall 110t directly or
imli roctly 0119<1gc in any nimilar or competi.ng busillesn \oJithin three
(J) miles of the Shopping Center. This restriction shall not apply
to Tenant'!] stol~es, if any, pl.-er;ent,ly open and in operation within
rmch area. As Ilsed in this :~.ectioIL....1, the word IlTenantlt shall
include: (i) if Tenant is a corporation, all of Tenant's officers,
directors, employees, or shnreholders, jointly and severally, and
all entities in which Tenant or its officers, directors, employees,
or ohareholders, jointly and Geverally, Ghall have any interest;
and (ii) if Tenant consists of one (1) or more partners,
individu.11s, and/or unincorporated entities, each partner, the
respective spouses and children of such partners and individuals,
jointly and severally, and all corporations and/or other entities
in which such partners, individuals, entities, or any member of
such unincorporated cnti ties, jointly and severally, shall have any
interest.
(f) If Tenant shall engage in any similar or competing
business in violation of Section 4 (e) hereof, in addition to any
and all other remedies available to Landlord at law and in equity,
the amount of GrOGG Sales, made by such competing or similar
business shall be included in Gross Sales for the Premises in the
computation of Percentage Rent.
~J2[~8"ES DEFINED
~.a...5.. (a) The term "Gross Sales" as used herein shall be
construed to include the entire amount of the 'actual sales price of
all goods and services provided at, in, on, or from the Premises,
including, without liIi1itation, mail or telephone orders received or
filled at the Premises, all deposits not refunded to purchasers,
ordern taken at or from the PremiseG (although said orders may be
filled elsewhere), and sales and receipts by any sublessee,
concesGionaire, licensee or other party in the Premises. Each
installment or credit sale shall be treated as a sale for the full
price in the month during which such installment or credit sale
Shilll be made, irrespective of the time when Tenant shall receive
payment (wllether full or parti,al) from its customer. Layaway sales,
Go-called, shall be included in the Gross Sales to the extent of
the down payment and any further payments thereupon during each
c<llendar month. Gross Saleti Ghall not include the following: (i)
Gum!> collected and paid out by Tenant for any sales or exciGe tax
imponed by any duly constituted governmental authority; (ii) the
exchange of merchandise between the stores of Tenant, if any, where
r>uch exchanges of goods or merchandise are made SOlely [or the
convenient operat ion of the busineGs of Tenant and not for the
pUl'pm;e of conmllnlnating a sale which has theretofore been made at,
in, Oil, 01. [rom the PremiseG, nnd/or for the purpoGe of depriving
Landlord of the benefit of: a sale which otherwist~ would be mnde at,
ill, 011, from, 01- upon the Premises; (iii) tbe amount of returns to
Gl:ippers or manufacturers; (iv) the amount of any caGh or credit
refund made upon any sale where the merchandine sold, or c;ome part
t.hcn:o(, is thereafter returned by the purchaGer and accepted by
TC'Il.:lnt; (v) GaleG of fixtures: or (vi) a11 surr.s and credits
n~cei\'C'd in Gcttlemt?nt of cl;dms for loss or damage to merchandise.
(b) All sales Ghall be recorded by means of cash
rf"ginten; or co:nputers ("RegiGtern") which di.splay to the customer
the ~mOUllt of the transaction. All n~giRten~ shall be equipped wiLh
sa,lr:>;, totali:-::t:r C()UI1U~J'r; for a~l G;iler; calegod(>s an(1 c1. sequeljtia]
4
. _ _ . ." .'...' _ '. <:' ",'" ' _ ". \ . _: . " ~,'. _' _", ',' .~ \' ). _ _ '.': ": _ " _. . , " ,4:
....--".-..
tro1l10c1ction totali::er counter, which counters are locked in,
constalltly accumulating, and which cannot be reset. Said registers
olw11 further contain tapes upon which sales details and sequential
tJ'ill1nilction 11l1l1ll>err. are imprinted. Beginning ilnd ending Balen
Inti)li~~)- n:-!,1dincJn nil,'ll be lllade.1 mattcl~ of: daily record. Landlord
m"I~' n::quire Tenant to provide l.<1ndlonl by noon of the next bUGiner)fi
d,lY ,1 recapitulation of GrOfj[l Sales to be nct forth upon formn
pro'/idee.! by' J.':lIldlOI d. Fili lun: to Illake ilvilililble i1 proper n~ceipt to
eclch C:UBtOlllcr upon hi.n L"equent o( the Game upon payment shall
cOJlr.ti tute n breach or thi r; Lcar.e.
'I'cn;mt !:ih.,ll keep Oil the Premises, or at its principal
office, tnl~ and complete records and i'lCcounts of all Gross Sales,
including daily bank deposits, in, at, and (rom the Premises. Such
hookR ,lnd records Gllilll include Duch sille records as would normally
IIp f~xrlmi nett by "11 accountant pur::mant to genertllly flcceptcd
.llalitillg standardG in performing an audit of Tenant's sales or the
RBle~ of its subtenants or concessionaires.
On or before the twentieth (20th) day of each month,
Tenant shall furnish to Landlord a true and accurate statement for
Ci]clI preceding month of all Gross Sales during said preceding month
(Ghowing the re[unds and ret.urno deducted in computing the amount
ol Gtlch Gross Sales), which otatement shall be certified by an
authorized representative of Tenant to be correct. Tenant agrees to
give Landlord acceOE during businezs hours to such books and
rec01:dlJ. Tenant agrees that it will J-;;eep and preserve for at least
thi1~ty-six (36) months after the end of each Lease Year all sales
Glips, cash register tape readings, sales books, bank books, or
dupl i cate depos i t sl ipG, and other evidence of Gross Sales for stich
}'pnr, LnncHord sh<'lll hove the right at any time and from time to
ti me to rludi t all of the books of account, bank statements.
documents, records returns, p.1pers, and files of Tenant relating t.o
Gross Sales and Tenant 011 request by Landlord shall make all such
m,1ttem i'lvaililble for [mch (!xilmination at the premises or at its
pdncipnl office. I( Lmldlon) should have such an audit made (or
(IllY Yf.'ar and the Grosn S.ller. r;hown by Tenant's statement for such
}'p,1r r,lial 1 be found to be Und01"stated by mrne thaJl thre(~ percent
O\). then, ill ildditioll to immedi,1tely paying Landlord the full
,lnlOtlnt of the understated Percentage Rent, Tenant shall pay to
Landlord tJIP. cost o( such O1udit. Landlord's right to have such an
<iudi t made with :r:.espect to ilny year shall expire thirty- six (36)
lt1011t.IHi .l(ter Tenant' G statement for such year shall have been
delivered to Landlord. Landlord shall have the right to terminate
this Ll?aG(~ upon notice to Tenant i( there ahould be more than two
(2) audita during the Lease Term which reveal understatements of
grof-iG oale::> by Tenant by more than three percent (3\).
(c) All statements o( GroGs Sales shall be delivered to
Landlord's Address or to such other place as Landlord may from time
to t.ime direct by written notice to Tenant,
Cd) Computation o( t.h~ Percentage Rent specified hE'rein
shall be made Gcparately with regard to each calendar month and
each L~aGc Year of the Term hereof, it being understood and agreed
'.hilt the GrosG Sales of any Le,H:;C Year and the Percentage Rent due
thereon shall have no bearing on or connection with the Gross SCiles
of .11lY other LeaGe Year.
(e) It: iG undr.>n,tood and agreed that Landlord Rhall in
no I?Vellt be conr:tTtlf:lcj or hpld to be .1 p"lrtner, co-venturer or
aE170ci.lt:~ o( Tenallt: in t1H~ conduct of Tenant' G busiJless, !lor [;11,111
J"llldlord be Jiabl~ fo)" any df~l>' f:i :incLJrred by Tpf)imt :in the conduct
of ']'(,!1,ll1f:'s bur.;iner;r.. ;t if; ulld(~n;;'.ooci and ugn>C'd lhat tllO
)r>lo1tionr,hip it; _lnd lit ~ll time>::> r.ll;dl n"m"in Ulat"of L;mdlonj .:me)
Tt"ll.:111I. L,mdlord .1nd Tf'l1ant ..'CKllc.....ledge and ,1gfe>e that n(>i tIler
:~h,111 bp subj(>ct to ;wi' imp1i..d ob1j').:1tiol'ls to the other, by 1"l"<1C0Jl
of tlH' filCt. th.lt thin Ll','i:;c> rno'JidPD fOI. the P'IYlllf'lll. of. PPJTCl1t.1,gP
FC'llt
5
" . j ; r, ,_'. , .. ..' ~,.', ',: :,: .' . . _ .. ':"" ,- . ~"., .: _.. . ' ',.: ' ,: ", .' ."
l\PJUTJ.QlJl\kJi!'JIT
s.!lC.\:Jsm..-G.. (a) 'l'l?I1<1nt c1.grcen to PilY to Landlord, an additional
rent ("^dditional RentU) for. the Premifies, throughout the Term. the
following nmounts:
(i) Tenant' G Proport.ionate Share of the cost oC
opeL"nting and maintaining the Common Areas, which areas are defined
ill !i!..".~.lLQ11--2f (tl1(> II Common An..,"" ('ORt"), including, without
] imitation, the cont of tht~ following: lighting, utilities,
clr:o.:ming, [mow and t1~afih removal, 1 iw~ Pilinting, Gccurity (i(
provided) I management [er~s not to exceed 5\ of all rent and
;Hidi t iona 1 rent charged [or the Shopping Center. maintenance,
lI1atcriills I laboL" costo. equipment, (including. without limitation,
tile cont of service agreementG 011 equipmcmt) I toola, general
n"p.li I 11, emf',l oYPP. betH~fi Ui ilnd pilYl"o11 taxefi, nCCOlllltil1g (ees,
lP~Jill f"f~r., pi!lnlitli, 1 iC0.lIfif' ill}{1 illr.pncLioll (P00, 0.11er:, unr> ,'IIr1
nervicC' Lilxcn, nlld the repilir or J.'r.placemr.nl: of paving, c:urIJlI,
ntlitionn, [inlt aid ntatiOJll3, camfor"\: ntatiollo, otairwo1yn, tnlck
WilY!:>, loading docks, p.1ckage pick-up stations, sidewalks, ramps,
the parking lot, dJ:ivf~w<lYc, <lilY gil]~ilgC, landnci"ping, drainage
facili.tief.i, and lighting (aeilities, including traffic lights, ao
may ue lIecessary [,.-om time to time, alld allY other cost of operation
or the improvements on the Common Areas. The Common Area Coots
nhall include depreciation of equipment acquired for use in Conunon
1I.n:!a l11<lintel1ance, but shall not. include the original coot thereof.
(ii) Tenant's Proportionate Share of any real estate and
ad valor.em taxes and assessments (1) which shall or may become a
lien upon, or be assessed, imposed, or levied by lawfu1 taxing
authorities tlg.linot. the land upon which the Shopping Center in
lOCrlted, the Building, and other improvements on the Shopping
C..nte]' for the tax yeilrn (tile yearn for which .1 lien is impor;cd)
f alli ng wholly or part ially wi thin the Term o( this Lease; (2)
which arise in connection with the use, occupancy, or possession o[
the mlOpping Center or. 1111Y part then~of or any land, buil~illgs, Ol~
other il11l>I."OVC1l\(mtn Lhereoll; ()) which become due and payable out of
or (or the Shopping Center, any I"l;ll~t thereof, or any land,
hui)diTlgn, or other improvemcllto thereon; or (4) which arc imposed,
<H~r.er;r;C'd, or levied in lieu 0(, in flubfititution for, or ill i:l.ddition
t"n ,1J1Y Ol~ 1111 of t1\f! forpqoing (c::o]1(~cl:ivp.ly the "T;;x Cost"). The
1"1 X ('ont. r,l1,l)] inclwlc> <lilY 1.('1":':1, 0xpCIlfies or COHtS (:including
,1U"or"lleys' fceG, expert fcell and ilpprai:'::l1l feer;) incurred hy
lJilndlonl ill protcrllillg l1ny ilsr.cm'lmcnlr., levien or the tax rate, but
nh,111 not include any charge (nuch an il water meter r.hargcl 'N'hich
if> mear,urcd by actual. user conGumption. A real estate tax bill or
copy thereof Gubmitted by Landlor.d to Tenant: ahall be conclusive
evidence of the amount o( any real pstate taxes, ase.cssments. or
inr::ta]),nent then~of. Tn <idditim1l Tfl!l;Ult nhil]] prJY ~'l]] tflXPR ]pvipd
agil.irwt: pernonal property, (ixtures and Tenant' G improvements in
the Pn?miseo. If such taxes (or Which Tena.nt i6 liable are levied
aga.illnt Lalldlord or I.andlord'n property and if Landlord elects to
pay thf~ Ilame Ol~ if the (lsGc:wC'd v,'lhw of l~andlord' r, property in
incn~<1sed by inclusion of any :;uch items and Landlord elects to pay
the taxes based 011 such increase, Tenant r.hall pay to Landlord upon
dc.momd that: part of Guch taxer; for .....hich Tenimt is Iiilble
hereunder.
(i ii) Tenant's Proportionate Shan,- of all premiums tor
publ i C 1. iabi 1 i ty, tire and extended coverage or all risk. business
lnten.uption, and/or rent 1 Of" 11 , and/or any other in6urance poliqr
which may reaflonably be carried by Ll'Indlord insuring the PremiGen,
the Building, the Common J\rea5. the Shopping Center, or any
i lIljlrovpmentG therein (the n l.nrmrc'1l1ce COfit").
(iv) 11. pt'oportionute share of a]1. utilitien GerViCeE not
mc"a.nun?d by it tiC'pt'lrate meter" for tlH' Pl'cmj Gel> ,1.nd pt.ovjded to
Tpll.1nt .11ld otJj(~J" t(~ll,UltG ot the Shopping CenU~r (the "Ut.ility
Cor-I'''). TC"lltlllt'fI rohan' of tlw Utility Co:H ::b.111 hI""' dr~t"('J.min('(1 011
l:lll' h;;:~i:-; ot t.lj(~ tot.,] ::~q\l.iJ-l~ fH~t of f IllfJi ;1.j",--ti cd t.he PI.(.mic;'~5 i.f,;
r,
it percentage of the total square feet of floor area leased by all
tCI1i'lnts provided Duch scrviceo. Tenant shall pay its share of such
cant, together with an amount equi1l to fifteen percent (151;)
then~()[ tlr. payment of adminir,trative costs o( '~andlord. within ten
(10) days after dCllIill1d thcrefo).-, Landlord ahalInot bill Tenant [or
rluch cont mon~ often than monthly. In the event Landlord determines
that: it i:l not appropriate ttl bane the utility bills on Tenant's
propOl"t:ioll.1l:e ohare due to the nature of Tenant' G business
ilctivitieG, Land10nl may une ita diocretion in allocating such
iJiilfi.
(v) Tenant shall pay to Landlord prior to the
Commencement Date the Annual Promotional Fund Cost indicated on the
He(en!nce rage, ilG Tenant' n initial annual payment for Tenant's
Ghil1.'e o[ the COGtG ("PL"omotional Fund Contsn) of a promotional fund
(npromotionnl Fund") to be uned to pny all costs and expenses
incuup<! ill enlll1ect:ioll wH,h tl1f~ formulation ilnd execution of
pulll -icily pnlgr.1:1lG 1'01" thp promoti.oll o[ tli(~ Shopping C~tltcr. Such
pJ.()~Jr"I1u;, which, at l.alldlon]':. option, nhalJ be determined by all
advert i G i 119 agency or (i. nn or vol unteer commi.ttee of tenants, may
illclude, without: limitation, special events, shown, displays,
.1.dverti.nementn, f.wi\sonal events, and promotional literature;
provided, howeveJ~, tili'll: I.,,'lndlord or an outside advertising agency
rlPPI.-ovcd hy Landlord sh.:1l1 have the right to review ilnd approve
n\lch publici.ty programs, the items on the Promotional Fund budget
fOl- each yeilr, clnd any amendmCl1tG to (mid hudget. A portion of the
Plomot ional Fund may be applied to pay casto oC admini.stering the
Promot i OIHll Fund. 'I'cnilnt' G initial payment to the Promotional Fund
!1hall be incr-caDed i.n such Lease Years, i.t any, that the Annual
Fixed Rent is increased pursuant to ~t..imL...l hereof by the
pc:rccntage increase in the Annual Fixed Rent. Tenant agrees to
advel~t ine in any .111<1 all special Promotional Fund newspaper
r;ectionr;, tab10idn or other advertisements, (including audio and/or
viau,)l m.!dia) and agrees to cooperate and participate fully in all
r.peci,ll ::;;11011 and promot.iolln f3ponsOJ,-cd b)' the Promotional Fund.
(b) Tenant's Proportionate Share of the Common Area
Cont, the Tax Cost, and the Insurance Cost shall be estimated by
Landlord no later than thirty (30) days prior to the first day of
each Lease Year. l,andlord shall notify Tenant of such estimates
'.vhicli ~;hi1l1 be p<'l irl , tO~let1Jf;r,. wit.h (ill .1HlOunt equal to fi fteen
pCITC'llt (P)\) thereof as paym~nt of: admini.ntrative COGts o[
1...1lHiJord, by Tctl<ll1t in ndv;\llc;p', 011 the fin:;t day of each and every
C.11('l1d;1I~ month throughout !il1c!l l..0.1fH~ YP'ill". At the cnd of the J.eaGe
Ycar, when Landloni has calculated the exact amount of Tenant' B
rl-opoJ-tioll.1tc Shi1r~ of such costs, Landlord shall notify Tenant of
r;lIcl1 eX<lct iln10unt. Any deficiencicfi in the paymentG theretofore
(incllHHng silid ndministrativc costG) made hy Tenant shall be pai.d
by Tenant to Landlord within ten (10) days of receipt of said
Ilolicp. Imy nurpluc; pi1id by 'l'en,1nt during the preceding I,caGc Year
shall be applied against the next due monthly installments of Dueh
cOHtn tiue Crom Tenant. During any part of the Term which shall be
lenD tllall " full calendar year, any alld all Guch costs shall be
pt.orated 011 ;1 daily basi G GO that Tenant shall only pay Tenant' s
Prupol,tiOllilte Sl1an~ of nuell cants attributable to the portion of
the cll]e>!1diU^ year occurring within the Term.
(c) The term UrentU ill3 herein used shall include f~nnual
Fixed 1(.(>111:, Percentage Rl?:nt and Additional Rent.
~'Ql1l1Q!UlR.E1IJ.i
S~L1. Subje.::t to the Rules and Regulations specified in
Sc_ct,iQILll. hereof and Landlon1' G righto under ~n 1 tel hareoC,
1,;1nI11oni lH?p:'by grantn to 1'('I1;111t one! Tel1.1nt' G employcen, agclltn,
cln~l OIll('1 n, alld .1l1vit(>('fi t-!1l-' nOllf>){r.lur.ivf> J-iqhL, Ihn"ill'J t 11(> T~nl1, to
11:~1'. ::lllljl"'l'l '0 Ill" tiqhtr: (lr ()()V"lTlll1"lllill ,1\lthor-,it.if'f'l. 0,lriI':'1Ilf>lItn,
IJlJtJli,. hi(Jhw,l~'f> ant' ntll"l If'n'-t'icti{)li:~ of f('('onl, in common ....'ll!l
otlu-'n; qr"il'lU~(! the \l~;C t.l1f::>rPD!, th,?: Comma:l 1\n:-;,r; locatcd within tl,e'
~-;hnppjllq Cl"ntet.. Tile 1:01'"01 "Common An~,1G" ,1l'; uced in t111li Lear;:f>
7
011.111 mc.,n the ent ire Shopping Center leGs the gross leasable area
of the Shopping Center and shall include, without limitation, the
pill-king are.:lG, roadways, pedestrian sidewalks, loading docks,
cI(~livp.ry iln~as, landBcilped areas, and all other areas or
illlpl~o"emcntG which may be provided by Landlord for the general use
o( tenants of the Duilding and the Shopping Center and their
tlg(~nt(l, cmployeen, and cust.omerli. Landlord Sh"111 be responsible for
LI1F:': op~l""ation, 1O<lnagement, and maintenance at the Common Areas. The
11Iill1ner i.n which the Common Areas shall be maintained and Lhe
expenditures therefor shall be nt the reasonable discretion of
J~al1dlord. Landlord may temporarily close parts of the Common Areas
for such periods of time as ma}-" be necessary for (i) temporary use
<10 a work area in connection with the construction of buildings or
other improvements wit.hin the Shopping Center or contiguous
property; (ii) repairs or alterations in or to the Common Areas or
to iU1Y utility. type facilities; (iii) preventing the public from
obtnlning prescriptive rights in or to the Common Areas; (iv)
emergency or added safety re3130n13; or (v) doing and performing such
other (lctr> ;lr> in the use of good business judgment Landlord shall
c1~tr~nlli.ne to be ilppropriate [or the Shopping Center; p-rovid~Q,
hQY!_~Y..~J~, tl1flt. Li'llldlonl sllall une reflsonahle effortE> not to unduly
int:...r!r>l"r> with or dinrupt Tenant's bUGineEf~.
CQtl~'iTEJ)J.;:nQtLQL1'REM Iml.S.
Section 8. (a) Prior to the Commencement Date, Landlord shall
complete the improvements to the Premises described in IDilli.l;>it "C"
at tilchec1 hereto and made a part hereof by reference. Tenant hereby
ilpprovcs E.'ihj.JJ..;L~,,: i"lnd all of the improvements, plans and
specificatiol1s deGcribed therein. It is understood and agreed by
Tenant that changcs in such improvements, plans and specifications
which will not materially interfere with Tenant's use of the
Pn:~l1lh;en and which may be necessary during construction af thc
Pl-emit;l?s shall not:. affect, invalidate, or change this Lease or any
of its terms and praviGiollS.
(0) Landlord' G work in accordance with Exhibit "e" shall
be deemed approved by Tenant in all respects thirty (30) days after
the Commencement Date, unless prior thereto Landlord receives
written notice from Tenant of any defect in such work. Any
di sag1"Cemcnt whi.ch may arise between Landlord and Tenant concerning
the work to be performed by Landlord shall be resolved by t.he
dcci!d on8 of Landlord' G architect.
(e) Tenant ahall complete the improvementG to the
Pn'mi t:cn d(~Gcrihed in J~xJli)).iJ;,__~~ attached hereto and made a part
llen~()r by n~fcrencc, Landlord and Tenant hereby approve IDill.i.lll..t.-.:P~
and. all of the improvements, plans and specifications described
Lllf~l.-Cjll, pnJVidp.d t.hdL Tlmdl\L "i wOl""k described in &_oJJi.Q.it tlD" :::h.::.l1
be pet.fonncd ill accon!allce with the provisions of ~tion 12.Ji!..LlU..
hcreof; and provided further that any change in the impx'ovements,
plane cmd f;pecificationo described in .E.m.iQiL.:..P~ shall be approved
by Landlord in writing in accordance with the provisions of Spction
)?'J(llJjj~ hereof.
US.E
S.e.t:.timL2.. (a) The Premises shall be occupied and used
exclusively for the purposes described on the Reference Page and
for no other \lEe, unless Tenant haG obtained Landlord's prior
wd tten consent, which conGCl1t may be '..,ithheld in Landlord' G Gole
diFCleli()1l [01. any reason or no reason 'o'hatsoever. Tenant shall
commence businesG in the Pn~miseG on or before sixty (GO) days
after the' Commencemcnt Date, shall operate continuously one hundred
pPl"cC'nt (100\) of the Premi::;es during the entire Term, and shall
JH~f>'P thf~ Pn:mi6er. fully stocked with merchandise and staffed with
pPt'r;nlllll~] AU nn to mnxilld.~(! GrOBO Snleo ftt the Pn~mineB ftt nil
t ii',lP:~, TI."'Il,.nt: r.hall conduct it::; bllGinef;G in the j'n:-miGC>G on all
b~H,ilH':~:~ d,'yn \hnill~] ...]1 Iwurr. ,Hi from time to time may be
lPar:on..1.bly df:>t01-min,.d h)' ]..1IHiJoni to bC' consiGlC'llt. ....'ith the d3Yt~
8
" .:'. ',' , , :' I.' . \. ~ " I . ~. '. I' , .
and hours of other tenants in the Shopping Center, but in no event
less than eight (8) hours in a business day, five (5) days a week
and fo)~ty {40l hours a week (Holidays excepted). Tenant may close
thp Pn"mifip-s dllrinq reason;tble periods [or repairing, cleaning or
d0(~Onlt: illq thp. PI'e1!li~a:~r;, wi th th0. prior wril:ten consent of
Landlord.
(b) Tenant agrees to conduct its business in the
Premises under Tenant' 5 Trade Name as indicated on the Reference
Page.
(c) Tenant shall use and occupy the Premises in
accordance with all governmental laws, ordinances~ rules, and
regulations and shall keep the Premises in a clean, careful, safe,
and proper manner. Tenant shall not use, or allow the Premises to
be used, for any purpose other than as specified herein and 511,,11
not use or permit the Premises to be used for any unlawful,
disreputable, or immoral purpose or in any way that will injure the
reputation of the Shopping Center. Tenant shall not permit any
activii:ies in the Premises which may create or cause noise level!;
which are audible outside the Premises and disturbing to
neighboring residences, other. tenants or their customers or
employees. Tenant shall not permit the Premises to be occupied in
whole or in part by any other person or entity. Tenant shall not
cause or permit the use or occupancy of the Premises to be 0)"
remain a nuisance or disturbance, as determined by Landlord in j to
sole discretion, to neighboring residences, other tenantl1,
occupante, or uiiers of the Shopping Center.
UTlI>ITIE(i
Section lQ. (a) (i) Landlord shall provide, up to the lease linn of
the Premises, the necessary mains and conduits to provide wa.ter,
sewer, gas (if available by public utilities) and electric se)~vice
to the Prcmisl;!s. Tenant shall duly and promptly p<1y to the r;upp) iet"
thereof all bills [or utilities consumed in the Premises meaGun~{l
by a Geparate meter for the Premises.
(ii) If Tenant shall use any utility service for allY
purpose in the Premises which is or can be measured by a separfl.te
met:er for the Premises and Landlord shall elect to supply such
service, Tenant shall accept and use the same as tendered by
Landlord and pay Landlord therefor at the applicable rates charged
by Landlord. In no event shall Tenant pay to Landlord for any such
service more than '..;ould be chargeable to Tenant by the uti] i ty
company providing sllch service. Payment for any and all water. gar;.
sewer. and electricity service used by Tenant, i.f furniGhed by
Landlord, shall be made monthly aG Additional Rent within lid fl.}'
DO) uays o[ the presentation by Ldndlord to Tenant or LiU&
therefor.
(iii) Notwithstanding anything to the contrary provided in
thin Section 10 or in SubGcction 6(a) (iv), Tenant acknowledges th,lt
'f,,'ater r;c):vicc to the Shopping Center shall be supplied by I~tl.nd]oni,
and TeJlilnt agrees to purchacc same fl-om Landlot-d '-.Uld to P,lY tilc"
c.:ha)-gr-r; thcn?fOJ: wlH~n billr; a:t:e rendct"ce] at the appliciib]p 1'''''1':;,
Such water tiervice shall be mea!mred by a master I1\Qter, and Tenant' 1:;
share of the charges for such service shall be allocated l1J'
Landlord, at Landlord's option, either (a) on the basis of the
total square feet of floor area at the PremiscG an a percentage 01
the total square feet of (loor area leaDed by all tel1,1ntG in till"
Shopping Center provided ::mch .....ater ser.....ice; or (b) baGC"(i UPOIl
I"l:8.dings taken from a water sub-meter for the Premi~;(>(;. if Lal1c1~(j1(1
electn to install such a sub-meter. All ::mch Ch.l:rgC"!l Dh.111 I".' I"ull
monthly to Landlot-d as Additional Rent within thil-ty DOl 11,-lj.'f'. (,f
tllC'"' prC>Gcntatiotl bi-' Landlord to Tenant: of bi))r. throldol
{bl 1n the event Landlol-d Guppl il~::;
facilities to the PremiscG, Tenant ~}lall pay
Tenant' 5 Proportionate Sh<1re of t l1r rcr:t
all}' Etlllll .1) j' h' .....r' 1
.1n '.IMil ,\url.'} 1"'1.1
nf /11"" ,'d 111'1 HI'
9
maintaining such facilities, including, without limitation, the
rental cost and/or amortization of such facilities.
(c) Landlord shall have the right to cut off and
discontinue, without notice to Tenant, any utility or other service
whenever and during any period for which bills for the same, rent,
or other obligations hereunder are not promptly paid or performed
bY'!'0Ilolllt.
(ell Tile ob.l ig;1t:ionfl of Tenant to pay for utility service
as herein provided shall commence on the Commencement Date.
Landlord shnll not be liable in damages or otherwise should the
furnishing of such services to the Premises be interrupted by fire,
accident, riot, strike, act of God, the making of necessary repairs
or improvements, or other causes beyond the control of Landlord.
(e) Landlord shall not be liable in the event of any
interruption in the supply of any utilities. Tenant agrees that it
will not install any equipment which will exceed or overload the
capacity of any utility facilities serving the pr!::mises and that if
any equipment installed by Tenant shall require additional utility
facilities, installation of the same should be at Tenant's expense,
but only after Landlord's written approval of same.
RULES AND REGULATIONS
Section 11. Tenant agrees that Landlord has the right, at any time
and from time to time, for the general welfare of the Shopping
Center and its occupants, to impose reasonable rules and
)"egulntionD of general application governing the conduct of
occupants of the Shopping Center and their use of the Common Areas.
Tenant agrees to comply with any and all such rules and regulations
impos~d by Lrll1dlord, including, without limitation, those rules and
nO'gulntiolls set forth in Exhibit "Ell.
CIUillGE OF IMPROVEMENTS BY TENANT
Section 12. (al (i) Upon prior written approval of Landlord,
Tenant shall have the right during the Term to make such interior
alterations, changes and improvements to the PremisEs (except
structural alterations, changes, or improvements), as may be proper
and necessary for the conduct of Tenant's business and for the full
beneficial use of the Premises, provided Tenant shall (Ai pay all
costs and expenses thereof; (B) make such alterations, changes, and
improvements in a good and workmanlike manner, with new materials
of first-class quality, and in accordance with all applicable laws
and building regulations; and (el provide Landlord reasonable
assurances, prior to commencing such alterations, changes, and
improvements, that payment for the same will be made by Tenant.
Tenant shall not make any structural aiterations, changes or
improvements to the Premises.
(ii) In order to obtain Landlord's appro....al for such
alterations, changes, and improvements, Ten,ant shall submit to
Landlord plans and specifications describing the design, materials,
style, and appearance of Guch alterations, changes, and
.impJ~ovemcllts \<"ith reasonable particularity. Within thiJ:"ty (30) daya
after receipt of such plans and specifications, Landlord shall
notify Tenant of any Objections of Landlord. Tenant shall cure the
cause for such objection within thirty (30) days after receipt of
:::uch notice and shall resubmit such plans and specifications for
L,1ndlord's review and approval. Landlord may charge Tenant a
reasonnhle charge to cover Landlord's overhead as it relates to
such proposed work. Prior to construction, Tenant shall provide
such financial assurances as Landlord shall require to assure
payment of the costs thereof and to protect Landlord against any
lOGS from any mechanic's, materialmen's, or other liens. Tenant
shall not be permitted to enter upon the roof of any buiJding
without the prior COI1Gent of Landlord.
lO
(b) Except as otherwise provided below, .111 lli~lIl11,
equipment, furnishings, nonpermanent improvemento, ..md trillll'
fixtures within the Premises, installed in the Prcmirum by 'I'PIWIlI
and paid for by Tenant, shall remain the property of 'I'nll,111t ,111/1
shall be removed by Tenant upon the termination of thiH I,OUIII',
provided that any of such as are affi.xed to tho f1n~lllifi(,11 ,'11111
require severance shall be removed by Tenant ilnd Tnnilllt' 11111' II
repnir any damage caused by such removnl, Oy wri t.t'.I!1l 1I0!: I(~p 'II
Tenant prior to expiration or terminati.on or: the 'l'PlllI, LlHUllllld
shall have the right to require Tenant t.o leave i 11 Llll":' PIPrnl/II'1l
equipment, improvements, or fixtllren attClchcd to t:IH~ (In"'mlll/'II nl
the Building 0 Anythi.ng contained herein 1:0 1.111' f'ollll,lI~'
lIoLwithnt,lIlding, tile I1VAC F'nci.lit i.er., t1Ilfl ndill:rlt nYlllf'lllli nlltlll ;\1
all times remain tile property C.l( Lalldlont .1lu1 nho111 lint bl' IP1!lIIVI'd
by Tenant,
REPAIRS AND MAINTENANCE
Section 1l...., (a) Landlord shall maintain the fmlluJ,H Jon, till'
exterior structural walls, and the roof of the Bu i 1 d t JIIJi II 1.lII/'lll
repair, except that Tenant shall reimburoe LandlonJ fol' tilt.' f,'onl ot
any repair occasioned by the act or ncgliqel1t.:n of 'l'f,'1\.1II1, II n
a9~nts, employees, invitees or 1. iC(~nfH~r:>n, 11[11\('1 I on\ JlhrtJ J 1101 J.ll'
required to make any other improvemr~ntrJ or repnlnJ of '"I't' I.; 11111 IlpOIl
the Premises and appurtE:nances therr::!to, r:!xcopt an ntlll'l wi nl'
provided in this Leace, If the premi lies nhoultl l.lr~c()tlIl! ill IIP/-lI of
repairs required to be made by Landlord h~n~Ul1tlpl., 'I'l'lliU1L 1111...11
give immediate written notice thereat to Li:1lldlonl, itl1~t LttlUI1I11d
shall not be responsible in any way (or [nilUJ~("J t n mttl(n "IIY lilH:h
repairs until a reasonable time f3ha11 h,1VO cl;Ipuc<l ;'1' t.PI- t Iw qivillfj
of such written notice, Landlord's Gole liability I1JI,,11 I,ll' Ilmilnl1
to the cost of the repair, Landlord nhall not bn 1 iilhlp to 'I'/'nrllll.
for any interruption o[ Tenant's busincnn 01" i ncollvelli r>llf'P CiHlIll'll
Tenant. or Tenant' n assigns, Gllhl(!fjneen, curl! OI\lPII1, i!lv i I "I'll ,
!~l\lployees, licensee:; or concor.nioll"in~l'l ill I hI" fln'minl'n llll at'cllIIlI!
of Landlord' r; performa.nce of ;lIlY rcpili )', mai 11U~lli\lH'P or n'pl,.H'C'IIlPlll
ill the prcmines, any other work tilercdn or i II till"' filloppi IIq ('Plltl~l
pursuant 1:0 Lilndlord's rights or obligilt..iOlHl 11II(k~1- I.Idg Iptllll-' 110
long as such work is being conducted by Landlc.nd in iWCOII!;IlWP with
the terms of the LeaGe and without. 9rmw lII~gl ,iql'lH'I' UJ qtO:;!l
disregard for Tenant's business operations, Unlol1fi ot Ill'rwi lil'
provided herein, there shall be 110 abatement of 'IC'nl dlld 110
liability of Landlord by reaf'iOl1 of any injury to or' illtl~J'!l!Jf'm:e
with Tenant's business ariGing from the making of ,my lC'pi'd I"n,
alterations or impro.....ements in or to illlY portion or till' flIlOppilllJ
Center or the Premises or in or to fixL\Jn~l1, appllJ'IYl1iHlCt~l; olnd
equipment therein.
(b) At the sole cont and cxpenl10 ot Tenanl <l1lt1
throughout the Term, Tenant shall keep nnd ma:1ntt\1n tho Pn"'l1\11.ul~ 1n
good order, condition, and r-epi'lir, in.l clean, nanit:aJ'")', tUH1 IH1fl~
condition in accordance with the lawn of thf! !it,'lt ,.. In .....hidl t.lll~
Premiaes are located, and in accordance with all din'clilml1, nl)('r;,
and regulations of the heal III o[f. i('(>1'", (i_n~ 1l\.'lnl~Ii11, 1nl i lIh nf)
inspector, or any other proper office1" o( th4~ ~Joven}mf!lll.ill .1~.wnch'li
having jurisdiction over the Pre-miGeo. WithmJL 1 im1tln9 tlw
foregoing, Tenant shall be rer;ponA i ble (or 1lIl) j Iltf~JH\I1CP, tr')),li T,
and, with Landlord's COIlLient, l'epl,lcement au IWf~(1{.'(1 of lll]
electrical, plumbing, he;ning, "t?l1ti].'lill~, :ti1'" condilinnhlq, ti!111
utility systems locat(>d Oil tilt:> Pl"l.\miur.'fl, all plat~ ~Jl"Ha; imd
windows, window fittingr. and n<1nhr'n, ,111\1 ill: I~,.io!' ,'f}\1 r')(I.PJior
dOOl-;" all fixtureG withinl'lj(" jJJf'mirH'J1, ,11) ill!f'Jiol ""..-'dIn, i)UOJH
and ceilingn, \\later heaterr;, t."J'mitf' 11Illt IH'I';I (')(lpl'l1ljn,tl.iOll. all q!
Tenant'::; improvementr; .111d tl'.1111' 'i:x!.uI4'r:. '1'1'\),"1111 f.;h,111 ~4"'P ii1l<1
milintain the Premif;p's in i'lr'nlJ'(i;mcl' with ,ll1 Jl'qU}J~c!l\"lltn of ,lit""
concerning the moJ.I1I!e]-, u:;a'_V'l dill' (OOllllltJllll of I tlf' l'll.minl.n ;i1H1
,1ppUrlen,'lIlCen thr'~reto, ilC: th,' fi'-Amp :,h.ill 1>1" jll f'ff,-,"I tlUtH 1 im,' tn
t.ime, Tenant f:h.1l1 pI'lmit IlU \1,',1[;11', d"lt\\,l'Il', 1;J jlljlJl)' 10 tIll'
Pn-:omir,;".r;, If at "1I~' l.i!1\l' ;111" fJI!lll t il1il' III tilllo' (\11111:'1114,. .JI.I'lI, ,llj(1
!lilY J"f:Il('wa] 1.110)('01, ']'1'll,ill! ::]ldll f,ll] 1" t1\'I~1' ,11;,. 11ldlli!'<I'dlil-",
jj
", ' " ' , 'I': . \ .' .' ,',", ,:.' . " ,'., i " . "
repairs or replacements in and to the Premises as required in this
Leasel Landlord shall have the right, but not the obligation, to
enter the Premises and to make the same for and on behalf o[
Tennnt, and all sums so expended by Lc1udlord shall be deemed to be
Additional Rent hereunder and payable to Landlord upon demand.
Tenant s11a1l keep in force throughout the Lease Term maintenance
contracts for the heating, ventilating and air conditioning system!;
reasonably satisfactory to Landlord.
WAIVER OF LIABILITY BY TENANT
Section 14. Landlord and Landlord' 5 agents and employees shall not
be liable for, and Tenant unconditionally and absolutely waives any
and all causes of actionl rights, and claims against Landlord and
its agents and employees arising from, any damage or injury to
person or property, regardless of cause, sustained by Tenant or any
pel'son claiming through or under Tenant, resulting from any
ilccident or occurrence in or upon the Premises of any other part of
the 13uilding or the Shopping Center, unless the same shall be due
to the gr:oss negl igcnce of Landlord <'Ind/or I.;U1dlord's agentG and
employees. Thi.s provision shall r.urvive the termination ot"
expiration of this Lease.
INDEMNIFICATION AND INSURANCE
Section 15. (a) Tenant will defend I indemnifYI and save Landlord
harmless from and against any and all claims, actions, lawsuits,
damages, liability, and expense (including, withol.1t limitation,
attorneys' fees) arising from loss, damage, or injury to persons or
property occurring in, on, or about the Premises, arising out of
the Premises, or occasio:1ed wholly or in part by any act or
omission of Tenant, Tenant' 5 agents, contractors, customers or
employees.
(b) At all times from the Corrmencement Date and during
the Term or any Renewal Term, Tenant shall, at its expense, keep in
full force and effect the following insurance policies insuring
Tenant, IJi1ndlord, and Landlord's mortgagee: (i) public liability
'insurance in companies acceptable to Landlord with mi.nimum limi.ts
of (a) One Million Dollars (::;1,000,000.00) on account of bodily
injuries to or deC\th of: one (1) person, and One Million Dollars
($1,000,000.00) on account of bodily injuries to or death of more
than one (1) per.son as the result of anyone (1) accident or
di~,i1r;Lel~, and Qne Million Dolli1rn (C1,OOO,OOD.00) on i1ccount of
d<-lmi1ge to property; or (b) Qlle Million Dollars ($1,000,000) Bodily
Injury Liability and Property Damage Liability Combined Single
Limit Coverage; and (ii) all-risk hazard insurance covering
Tenant's improvements to the Premises and all equipment aud
contents wi thin the Premises for the (ull replacement value and
business interruption insurance for a minimum of six (6) months.
Prior to the Commencement Date and upon each renewal, Tenant shall
deposit with Landlord the policies of such insurance, or
certificates thereof, showing Landlord and its mortgagee as
additi.onal insureds, and shall update the same prior to expit'ation
thereof. Tenant's insurance shall not be cancelable without thirty
(1.0) days prior written notice to Landlord.
(c) Tenant shall not carry any stock of goods or do
anything in or about the Premises which will in any way increase
the insurance rates on the Premises, the Building and/or the
Shopping Cent.er. An)' such increase shall be paid by Tenant to
'Landlord within thirty (30) days after written demand therefoI".
(d) All casualty coverage insurance carried by Landlord
or Tenant shall provide for waiver of subrogation against Landlord,
Tenant and other tenant:> in the Shopping Center on the part of the
iTlf;\lr,-IIlCe C,HTi~l'. Evidr;,ncp of the ('xir~t(>llC(" of l~uch ,,"':li\.'(~I- :;11<l11
be fU1'll'i:;bed by cithex" flally to tbp olheJ- p,nt}' Oll n~qu(>f)l.
12
sJ.GJm
S.e.tttQD--1..2.. Prior to opening for busineGs, Tenant Ghall install an
identificati.on sign for the Premises at its cost and expense, which
sign ~hall comply with JlXh...tQ.it_~. Tenant Ghall not erect or
illr.tall any other signs except as exprcGsly permitted by Landlord.
^ll p(~l'mitted nignlJ shall comply with the terms i\nd provisions o(
J\Xhl1>..LL~ illld 011 n?quirements of appropriate governmental
authorities. All necessary pel:mits or liccn:::;cc Ghall be obtained hy
Teni:l11t. Tenant shall maintain all permitted si.gns in good condition
and repair at all ti.mes and shall Gave Landlord harmless (rom any
i.l1jur~' to person 01' property arising from the erection and
maintenance of said signs. Upon vacating the PrcmiseG, Tenant shall
remove 0.11 signs and repair all damage caused by such removal.
ASS1GNMENT ANIL..m.!f'LETT1NG
.Qg~i9JLl~. (a) Neither this Lease nor any or all. interest herein
shall be sold, mortgaged, pledged, encumbered, assigned,
transferred, or otherwise di sposed of in any manner by Tenant,
voluntarily or involuntarily, by operation of law, or otherwise,
nDY !,hnll the premises or any part thereof he sublet, used, or
occupi cd for the conduct of <lilY buninens by any third person, finn,
or corpor<1tion or [or nny purpose other than herein authorized,
except with the prior written consent of IJandlord, which consent.
Landlord may grant or withhold in its sole discretion. A sale or
sales of fifty percent (50%) or more of the capital stock of Tenant
(if Tenant is a corporation) or of the interest in capital,
profits, or losses of Tenant (if Tenant is a partnership) shall be
deemed to be a prohibited assignment of this Lease within the
meaning of this Section 17. In the event Tenant desires to sublet
the Pl~emises, or any portion thereof, or assign this lease, Tenant
shall give t...ritten notice thereof to Landlord at least ninety (90)
daj's but not more than one hundred eighty (180) days prior to the
proposed commencement date of such subletting or assignment, which
notice shall set forth the name of the proposed subtenant or
assignee, the relevant terms of any sublease or assignment and
copieR of financial reports and other relevant financial
infc)rmation on the proposed subtenant or assignee. Notwithstanding
any permi.tted assignment or subletting, Tenant shall at all times
remain di.rectly and primarily liable for the payment of the rent
herein specified and for compliance with all of its other
obligatiollr. under this Lease. Upon the occurrence of a default
under S-e:ction 4.Q. of this Lease. which is not cured within the
applicable grace period, if the Premises or any part thereof are
tlletl r;ublet, Landlord, in addition to any other remedies provided
hen~in or by law, om.y collect directly from such subtenant all
rcnts due and becoming due to Tenant under such sublease and apply
such ~:ent against any sums due to Lo.ndlord from TpJ1ilnt hereunder.
No such collection directly from an assignee or subtenant shall be
construed to constitute a novation or a release of Tenant. from the
further performance of Tenant's obligati.ons hereunder nor shall it
constitute consent of the sublease or assignment. Any guaranty of
Teni'l.nt:' G performance executed as consideration for this Lease shall
remain in full force and effect before and after any such
ar:;r;ignment or Gubletting. Landlord may require Tenant, and TeJlant
hereby agrees, to execute a guaranty of this Lease before Landlord
COlmentG t.o any such assignment or sublease and to cause the
guarantor of Tenant's Lease to execute an acknowledgment of the
assignment or sublease.
(b} In addition to Landlord's right to consent to any
subtenant or assignee, Landlord shall have the option, in its sole
discretion, in the event of any propoGcd subletting or assignmc-nt,
to tCl-minilte this Lease, or in the case of a pr.oposed sublet.ting o(
lCf.>G than the enlire rremiscG, to recapture the portion of the
Pl"emir,cs to be sublet, as of the date the sublett.ing or aaoignmc:nt
in to he effective. The option shall be oxerciaed by Landlord' B
~3ivin':.1 Tenant written notice thereof within thirty (30) days
following L."llldlord's n"ceipt of Ten."lnt'ri writtC>11 notice ,1.5 requirecl
13
. '~ " . . ".- , . . : " , , " ' , . ' . . ):. , , ." , . " " ": ,
.1bove, If thin 1,~t1nC' [11101] 1 1m tennil1ilted with rnnpect to the entire
fln"ll1d (If'lr1, '"11('> '1'01'11\ 011<111 (~lllJ nil thn dnte ntilted in Ten,ll1t I 0 noti.ce
:Hllh,.. pfl(lf~I'lv'" dill,.. of Illf' fllllJlpi\np 01" o1f1f1lqllll1(ml: ilfl if I.llnt tlnLt!
ll;ulllf"'lI (II iqill,'ll~' lixf'd ill Ihin If"','ftP lor Ih,' ~Xpll"l.il}lI 01. 111l~
'1'1'1111. If 1,;11111101(1 If~(';lflllln'n olllY;l portioll 01" the Pn~llIifll'fl, 11Ir!
^lIlJua) Fixed !lellt awl Addi.tiunal RCllL duri.lIfj t1w ullPxpi n:!d Term
ahall abate, proport.iolliltely, banco on the Annual Fixed Rent and
Additiol1i11 Rent due an of the date inuncdiatcly priOJ~ to r.llch
n:c;~ptlln::! aud Perc(~ntagc Rent r.hilll be Cc1] cul.lted usinCJ the
adjusted Annual Fixed Rent. TenaIlt Ghall, at 'l'enant'n own coat and
expense, di5charge in full any outstanding commission obligation
wi.th respect to this [,case and any commission6 which may be owing
an i'l r"esult of any proposed arwignment or subletting, whether or
not the Premises are rented by I.landlord to the proposed tenant or
any other tenant,
(c) Consent by Landlord to any assignment or subletting
shall not include consent on a subsequent assignment or subletting
of the Premises by Tenant or its assignee or sublessee or the
consent to the assi.gnment or tran:3ferring of any Lease rencI....al
option rightG, space option rights or other special privileges
granted to Tenant hereunder {and such options, rights or privileges
shall terminate UpO:1 such assi.gnment or subletti.ng), unless
I,andlord specifically grants in writing such options, rights or
privileges to assignee or subtenant. Any sale assignment, mortgage,
transfer of this Lease or subletting which does not comply with the
provisi.ons of this Section shall be void,
(d) Notwithstanding Landlord's consent, in the event
that Tenant sells, sublets, assigns, or transfers this Lease and at
ony ti.me receives periodic rent and/or other consideration which
C!xceeds that which Tenant would at that time be obligated to pay to
Landlord, Tenant shall pay to Landlord 100% of the gross increaoe
in such rent as such rent is received by Tenant and 100\ of any
otiler consideration received by Tenant from fi\lch subtenant or such
ossignee.
(e) Should LandlOl:d consent to an assignment or sublease
of thin Lease, Tenant, its proposed assignee or subtenant and
Landlord shall execute an agreement prepared by or acceptable to
L,llldlord wherein the proposed assignee or subtenant agrees to be
bOu.nd by the terms and conditions of this Lease, and Tenant will
pay to Landlord on demand a sum equal to all at Landlord's costs!
including reasonable .1ttorneys' fees, incurred in connection with
such <lssignment, subleaSe! or transfer.
REPAIR AFTER CASUALTY
~mQlL.1--'i. (a) (i) Tenant shall immediately give \I.'ritten notice
to l,andlord of any damages ciiuGed to the Premises by (ire or other
c<lr:uillty, If the premir,{>!'; r;llilll be destroyed or so injured, due to
,lily caur;e, ar; to b{> Ullfit, .ill whole or in part, for occup;mcy, and
such dentt-uction or injury could reasonab1)r be repaired within nine
(9) months from the receipt of insurance proceeds covering such
de:>truction or injury, then Tenant shall not be entitled to
GUITender possession of the Premil:ics. nor, except as hereinafter
provi.ded. shall Tenant's liability to pay rent under this Leose
cease without the mutual consent of the parties hereto. In the case
of any !iuch destruCi:ion or injury, Landlord Ghall repair all
5tTucLura.l portions of the PremiGes with all reasonable speed and
r:;hall complete such repairG within nine (9) months from the receipt
of such insurance proceeds. NotwithGtanding the foregoing, Landlord
[;h1\] 1 not be required to expend any amount in execs:> of the net
in:~urance proceeds for ::;11ch repairs. Unless such damage iG tile
result of the negligence or willful misconduct of Tenant or its
agents, C'mp1oyces or invitee:>, if during such period Tcn,1nt shall
be deprived of the use of all or any portioll of the rrem.if~es, a
proportionate adju5tmellt in the Annua.l rixel' Rent and )\dd.it:iol1ill
Fl~nt r;hal1 be m.:ide correr:pond.ing to tlw tlme during o".;!1ich, and the
port inn of the rremi:;/~slJf \o:hich, Tplli\1nt Gllall be co deprived .-:lI1d
14
',' " '. . J " 0 }, . '. . " !'" .' '. ' ,1,'~" 1 . ".',."".'
-',
Percentage Rent shall be calculated using the adjusted Annual Fixed
Rent. Tenant Shilll! within sixty (60) days after completi.on of
rJ.1lldlord' n ".,'ork, complete:- all work to the Premiacs (without any
ill lowal1ce (rom ),andlord) necesnary to restore the Premises to their
r:ollclit iOI1 011 th0. daLe 'I'Cllflllt opened fOf" bunincon to t111~ public.
(iil If' ouch d"ntnll:t:ion nr injury to the PrcmiGCG cannot
reilnollilhly be repaired withi.n nine (9) months from the receipt of
inr.urflIlC0. pt-oc/?(ldn r.ov0,-iI19 ouch dr:r.t:nlctioll or i.njur.y, or. if the
lIel i.1l!H11'''IICC pt:nc0erln av.,! 1.1blo foJ." nllch rC!p.1irn .1r.C !lot
!;uffici.cnt: in Landlord' r, IT:i\:;ol1ill.Jl~ determination, Landlord r;hi:lll
notify Telhlnt withill ninety (90) days il[te]~ the OCCurrence of. Guch
destructi.on or injury whether: or not Landlord will repair or
rebuild. If Landlord elt::1ct!3 not to repair or rebuild, this Lease
Hllall be terminated. I( I..1lldlord nhi'lll elect to repair or rebuild,
I.andlord shall notify Tenant DC tll<! time within which such repairs
or reconstruction will be completed, and Tenant ohall have the
optioll, within tllirty (30) days after the receipt of suell notice,
to elect by written notice to Landlord to either terminate this
I.ease and any fur.ther liability hereunder. or to extend the Term by
a periOd of time cqui vnlent to the time [rom the occurrence of sueh
destruction or i.njury until the Premises are restored to their
former condition. In the event Tenant elects to extend the Term,
I.flndlord shall restore the structural portions of the PremiseEi to
their former condition within the time specified in said notice,
Tenant shall complete the work required of Tenant pursuant to
paragraph (i) above within sixty (60) days after completion of
Landlord's work, and Tenant shall not be liable to pay the Annual
Fixed Rent and Addit.ional Rent for the period from the occurrence
of such destruction or injury until the structural portions of the
Premises are so restored by Landlord and Percentage Rent shall be
calculated using the adjusted Annual Fixed Rent.
(b) In addition to all rights to cancel or terminate
this Lease given to the parties in Section 18 fa) hereof, (aa) if
fifty percent (50\) or more of the gross .leasable area of the
Shopping Center is destroyed or damaged, regardless of whether or
not the Premises shall be affected b)! such damage or destruction,
Landlord shall have the right to cancel and terminate this Lease as
of the date of such damage or destruction by giving notice thereof
to Tenant within ninety (90) days after the date of such damage or
destruction and (bb) if the Premises are destroyed or damaged
during the last two (2) years of the Term to the extent of fifty
percent (50\:) or more of the total square feet of floor area of the
Premises, then either Landlord or Tenant shall have the right to
cancel and terminate this Lease as of the date of such damage or
destruction by giving notice thereof within thirty (30) da}'s after
the date of said damage or destruction. However, if subsection (aa)
above does not apply and Tenant shall, within thirty (30) days
following receipt of I...n.ndlord's noti.ce of cancellation pursuant to
(bb) above, give Landlord notice of its intention to renew the
Lease for any additional option periOdS then available tC' it under
the t.erms of this LeaBf.~. then the notice of Landlord to terminate
the Lease ahall be of no force and effect and Section 18iUl.il or
l!Ll&li.U hereof, as the case may be, shall apply. If no additional
opt i on periOds are then aVililable to Tenant, this Lease zhall
tCI.millaLt= all the dale recited in such notice (rom L,'iudlord.
(c) Notwithr,tanding anything to the contrary containr:d
in .$-"J;,tllm.lL~(a)(il, 18(a)(iil, and lllb.l herecf, Landlord mal'
c.1ncel this I...ease wit.h no further liability to Tenant whatsoever :in
the event that following any di'tmagc, d(~Gtruction, or injury to the.
.PremifJcs or the Bui1ding, IJrtlldlord's mOl"tqagce elects to requi re
Landlord to make advnnce payments upon or (or ."lny indebtedn0G[;
r.;ccured by i1 mortga~]C' on the Shopping C,.'nter or .'l:lY portion
then~of .
(dJ III tile eV0Jlt of ~J1Y illGUranCe cl~im agaillGt allY of
La,ndlord' G insurance policie:::, Landlord [;h311 have the right to
recover from Tena,nt T;~I1tint's Pl-oportionate ShiiTe of the amO~Jlt of
1 ~)
-- . .....,......
"'li,",'
., ":'"
any deductible or other loss not r.eimbursed to Landlord by proceeds
of insurance.
!:.ONDEMNATION
~..2ll-ll. (a) In the eVent the entire Premises shall be taken
by condemnation or right of eminent domain, this Lease shall
tennllwte as of tho day possession shall be taken by the ta.kinq
uuthority ilnd Landlord and Tenant shall be relea:::cd from dlly
further liability hereunder. In the event only a portion of the
Premines shall be taken by condemnation or right of eminent domain
nnd t.he port.ion so tnken renders the balance unsuitable for the
purpose of this Lease, either Landlord or Tenant shall be entitled
to termillilte this Lease, such termination to become effective as of
tIle dCiY P()llllCllfiioll or tile Premise:> Ghall be taken, provided notice
o[ mlr:h t~rll1illiltion in ~J.i.veJl within thirty (30) dnyn il[tpr the d,lta
of notice of such taking. If, in such case, this Lease is not
terminated, Landlord ilgrees to restore the Premises with reilsonable
speed to an archItectural unit as nearly like its condition prior
to Buell taking as Shall be practicable. I( during and/or after the
work of restoration, Tenant shall be deprived of the use of all or
any porti.on of: the Premises, a proportionate adjustment in the
Annual Fixed Rent and Additional Rent shall be made corresponding
to the time during which and the portion of the Premises of which
Tenant is 50 depri.ved and Percentage Rent shall be calculated using
the adjusted Annual Fixed Rent in the formula specified in ~
:1 hereof.
(b) All damages awarded in connection with the taking of
the Premises, whether allowed as compensation for diminution in
value to the leasehold, to the reversion and fee of the Premises,
to Tenant's leasehold improvements or otherwise, shall belong to
LandlClrd. Notwithstanding the foregoing, Tenant shall be entitled
to make a separate claim to the condemning authori.ty for damage to
mer.chandise imd fixt.ures, removal and reinstallation costs, and
moving expenscn.
(e) Notwithstanding anything to the contrary contained
in .s.g;_G..!.;jorHL1..2.Jjl~ and ~ hereof, Landlord may cancel this Lease
with 110 ftlrth0r liability to Tenant whatso~vcr ill the eV8nt that
(.,.\ fifty percent (50'1;') or more of the groG!'> lear;able <1r('<I of tile
Shopping Centcr is tnkcn by condemnation Ol~ right of eminent
domai.n, or (bJ following any taking of the P..remises or the Building
by condemnation or r.ight of eminent domain, Landlord's mortgagee
elects to require Landlord to make advance payments upon or for any
indebtedness secured by a mortgage on the Shopping Center or any
portion thereof.
LllliDLORD' S REMEDI ES UPON DEFAULT
~ction 20.
(a) If, at any time after the Commencement Date:
(i) Tenant shall be in detault in the payment of rent
or other sums of money required to be paid by Tenant, or in th~
performance of any of the covenants, terms, conditions, proviGion8,
rules and regulations of this Lease, and Tenant shall fail to
remedy nuch default within ten (10) daYli of the date. when due ill
the event the defaul t is as to payment of any sums of money, or.
except as provided in subsection (ii) below! within twenty (20)
days after receipt of written notice thereof if the default relates
to matters other than the payment of money; or
(ii) Landlord ::;hall h,'we an audit made [or allY Yl?ar in
accordance with S~ction 5 (bJ above and the GrOGG Sale!i Ghown by
Tena.nt'r; statement o[ Gross Sales for such year shall be found to
be underr.tated by more than tllret~ percent (3\); or
for t.he
bf;>c()m~
(i i i l Tenant becomer; i11Go1 vent or maken an ar,ni gnmenl
benefit of creditoro. OJ~ if any guarantor of Tenant [;11,111
ill:lo1v(>nt or rr:.,lk'" ,'11 ar;Glgnm('>11l for tl~(' br>llf'fH or
!
](,
creditors. or if a receiver shall be appointed, or if proceedings
under the Bankruptcy Code shall be instituted by or against Tenant
or any guarantor of this Lease and the same shall not be dismissed
by the Court within ninety (90) days after being filed, or if any
event shall hilppen which, "side (rom this provision, would cause
any assignnu~nt or devolution of Tenant's interest or occupancy
hereunder by operation of liB"'; t.hen if any of the circumstances
described in (i), (iO or (iii) above should occur, Landlord may,
in ildditiol1 to all other remedies given to Landlord in law or in
equity, by writlen notice to TelH''Ult, terminate this Lease or
wi.thout tennillilti1l9 thiB I,ease reenter the Premises by summary
pl'oceedings or otherwise and, in any event, dispossess the Tenant,
it being the understanding and agreement of the parties that under
110 circumGtances ic; this Lease to be an asset for Tenant's
creditors by operation of law or otherwise. In the event of such
reentry Landlord lflay, but need not, relet the Premises or any part
thereof for rmch rent and upon such terms as Landlord, in its sole
discretion, shrill determine (including the right to relet the
premin9R (or (1 gn~"ltcr or leGSel:- term than that remaini.ng under
tit i:; !,r"r1f1P, 1:110 d_~JIlt:. 1.0 r<:1 r.L Lhe rrcmincn an a pClrt of a l<1)-g(~r
ill'pa, (lntl tlln right to dl,lll~W the charilcter or uae made o[ the
Prcnd.ficn). J [ J,;tl1dlonl decides to relet the premioes or a duty to
r.elet in imposed upon l.andlord by law, Landlord and Tenant agree
that Landlord shall ou.ly be required to use the same efforts
LandlCJrd then uses to lease other properties Landlord owns or
manages (or if the Premises is then managed for Landlord. then
Landlord will instruct such manager to use the same efforts such
manager then ur;es to lease other space or properties which it owns
or manageG); NOviQ5'JL howeve~, that Landlord (or its manager)
shall not be required to give any preference or priority to the
show il1g or leaGlng of the Premises over any other space that
J..nl1dlord (0r its manager) may be leasing or have available and may
place a suitable prospective tenant in any such available space
r.egal.-,Ue!;!:; of when such Hlternative space becomes available;
providgy, .il.U;:.tJl~, that T~andlord shall not be required to observe
,'lny instruction given by Tenant about such reletting or accept any
tenant offered by Tenant unless GlJch offered tenant has a
creditworthinesG acceptable to Landlord, leases the entire
Premises, agrees to uSe the Premises in a manner consistent wi.th
this Lease and leases the Premises at the same rent, for no more
tl1..n the Te:rm and on the same other terms and conditions as in this
Le,lSC without the expenditure by Landlord for tenant improvements
or broker' fi commissionfi. In any such case, Landlord may, but shall
not be l"equired to. mal<c repairs, alterati.ons and additions in or
to the prcmisen ,'Ind n~decor."l.t('~ the same to the extent Landlord
dCClll.f.; necessary or desirable. and Tenant shall, upon demand, pay
the cost thereo(, together with Landlord's expenses of reletting,
inCluding. without limitation, any broker's commission incurred by
Landlord. In the event of a reletting. Landlord may apply the rent
tlJ(;!'refrom fi rf,;t" to the payment of Landlord's expenses. including
attorneys' fees incurred by reason of Tenant's default and the
expenr;e or reletting (including, without limitation, repairs,
renovation or alteration of the Premises) and then to the amount of
rent and all other sums due from Tenant hereunder, Tenant remaining
liable for any deficiency. Any and all deficiencies shall be
pnyable by Tenant monthly on the date herein provided for the
ptiyrnent or Monthly InstallmentG of Fixed Rent. In determining the
deficiencies and rent which would be payable by Tenant hereunder
r;ubr:l?quent to default, the annual rent for each Lease Year' of the
unf><xpired portion of the Term shall be equal to the average Annual
Fixl?d Rent and Percentage Rent paid by Tenant (rom the commencement
of t}ll~ Term to the time of default, or during the preceding three
(3) full calendar year'G, whichever :is Ghorter.
(b) No tennination of thia Lease or any taking or
recovery of possession of the Premi~eB shall deprive Landlord of
nny or itn r....medien or rightB of action ngllinst Tenant, and Tenant
r,hall n"'m,dn li;\ble for .111 p;wt or 1uture rent, including .'111
Addj t iOIli'il Rr:>:lt, taxes. i n!:;uf',....nce prpnd urns, and other cb;u"ge5 and
l'Pllt p.1yt.blr> by Ten\1nt \llld/:or thin L~>ll[;e, during the Term. In no
]'I
~.,
II
I
I
t
\,
,I
I
event shall the bringing of any action for rent or other default be
construed as a waiver of the right to obtain possession of the
Premises.
(c) If ~uit Ghall be brought for recovery of possession
of th~ premines, for the r.ecovery of r.ent, or for any other amount
(111(' umlfJr th0 termn .'lId provir.iolln o( thi.n I.e;H1(~. or heCi\\HlC of the
In:eflch of any other covellant herein contaillcd Oil thp. ptll"t" of
Tenant. and a breach Sh;111 be esti1bl ir;hed I Tenant shall pay to
I~andlord all expenses incurred therefor. including reasonable
a.ttorneys' fees.
(dl WHEN THIS LEASE I\ND ITS TERM SHALL HAVE BEEN
TERMINATED ON ACCOUNT OF /\NY DEFAUI"T HEREUNDER AND ALSO WHEN THE
TERM HEREBY CREATED SHALL HAVE EXPIRED, IT SIlALL BE I,AWFUL FOR /\NY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS
WELl" AS FOR ALL PERSONS CI,AIMING BY, THROUGH OR UNDER TENANT ANO TO
SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE
ACTION IN EJECTMENT AGAINST TEN/\NT I\ND ALL PERSONS CLAIMING BY,
THROUGH OR UNDER TENANT AND TO THEREIN CONFESS JUDGMENT FOR THE
HECOVERY BY I,/\NDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER
,11TH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES OF NOT LESS THAN
ONE Tl10USAND DOLLARS, FOR WHICH THIS LEASE SHAI,L BE SUFFICIENT
WARRJlNT. THEREUPON, IF L/\NDLORD SO DESIRES, AN APPROPRIATE WRIT OF
POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR
PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR /\NY REASON AFTER SUCH
ACTION SHALL HAVE BEEN COMMENCED IT SHALl. BE DETERMINED THAT
POSSESSION OF THE DEMISED PREMISES SHOULD REMAIN IN OR BE RESTORED
TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DBFAULT AND
UPON ANY SUBSBQUENT DEFAULT OR DEFAUl"TS, OR UPON THE TERMINATION OF
TillS LEASE OR OF TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET
FORTH, TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS
HEREINBEFORE SET FORTH, TO RECOVER POSSESSION OF THE DEMISED
PRBMISES I\ND TO CONFESS JUDG~IENT FOR THE RECOVERY OF POSSESS ION OF
THB DEMISED PREMISES AS HEREINBEFORE PROVIDED, NOTWITHSTANDING
ANYTHTNG CONTAINED IN THIS LEASE TO TIm CONTRARY, THE RIGHT OF
I,ANDWRD TO INITIATE /\N AMICABLB ACTION OF EJECTMENT AS SPECIFIED
AnOVB SHAI,I, NOT PRECLUDE OR I,mIT LIINDLORD'S RIGHT TO INITIATE AN
AmCABl,E ACTION FOR RENT,
IN THE EVENT OF DEFAULT HEREUNDER AND ALSO ,IHEN THE TERl~ HEREBY
CREATED SHALL HAVE EXPIRED, IT StlllLL BE LAWFUL FOR /\NY ATTORNEY OF
ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR
Al,L PBRSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO SIGN AN
AGREEMBNT FOR ENTERING IN /\NY COMPETENT COURT AN N~ICABLE ACTION
AGAINST TEN/INT I\ND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TEN/\NT
AND TO THEREIN CONFESS JUDGMENT FOR DIIMIIGES FOR 1IM0UliTS DUE
HEREUNDER TOGETHER WITH COSTS OF SUIT ~JID ATTORNBY~ FEES OF FIVE
rERCBNT OF THE AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE
SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN
l<F,rROPRIATE WRIT OF EXECUTION [.lAY ISSUE FORTHWITH, WITHOUT ANY
PRIOR WRIT OR PROCBEDING WHATSOEVER, PROVIDED THAT IF FOR ANY
REASON AFTER SUClI ACTTOtJ SIJ.\LI, HAVE nr.r.N COMMBtJCED LANDI,DRD SIIAL!.
IIAVE TilE IHGlIT FOR TIlB SAME llEFAUUr MiD lIPON ANY SllBSF.QllBNT DEFAlIl;r
OR IlEFl\tlLTS, OR UPON THE TElH-1IUTl.TION OF THIS LEl\SB OR OF TEW\NT' S
I.eIGHTS AS HEREIlHlBFOHB SET FORTH, TO IllUNG OtJB Oil MORE Fllln'llER
ACTION OR ACTIONS AS lIERBINBEFORE SET FORTlI, ANIJ. TO CONPBSS
JlIDr;r~ENT AS lIERE1NBEFORB PROVIDED, NOTWITHSTNIDING ANYTHlNG
COllTAINED IN THIS LBASE TO THIl CONTRARY, THE RIGHT OF I./\NDLORD TO
IIJJTIATE /\N ACTION AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT
I.J\NDl~ORD' S RIGHT TO INITIATE ANY OTHER ACTION.
ee) In any amicable action ot: eject.ment or for rent and
other GUIDa, Landlord ahalI first caU!i'=' to be filed in such action
"n .1.ffic1a.vit made by Landlord or someone acting for Landlord.
Gettillg forth the facts lIeceGsary to .1.uthorize the entry of
judgment ilnd :if a true copy of this L('r;.1:L' (and of. the truth of t\H~
copy Guch affidavit shall be G\l(!:~ci(>nt \?vil.!pnce) Ghall bp. fih~(i in
raH;!1 f;U it. ,'let ion or acti OIlG. it rolla.Ii noll'll? necer,l1ary t.o f i 1 (> thp
ori~~illal an a v.'an','ult of. aU.orney. allY l-U]'" of COllrt. C\~Gtom OT
18
practice to the contrary notwithstanding.
(f.) Tel1cJnt expressly waives:
(i l The right to delay execution on any real eatate
t1h1t may be levied upon to collect any amount which may
h0.cnrll(! due lltld~r the tel~mn ilnd conditions of this Lease and
.111)' riqht to hilVC the flame! appraised. Tenant authorizes the
ProLhllllot,lIY or Cl el.'k to cnter a wt:it of execution or other
pnH:flfHl UpOIl Tnll;lIlL' n volullttlJ:y waiver and further agreee
thnt o,lid real cst.lt.e may be sold on a writ of execution or
0111(>1' pl"()(;nr.r..
(i il
"enalll.: Act
thereto.
All rights under the Pennsylvania IJandlord and
of 1951 and all supplements and amendments
(iii) The right to three (3) months and fifteen (15)
or thirty (30) days' notice required under certain
circumstances by the Pennsylvania Landlord and Tenant Act of
1951, Tenant hereby agreeing that the respective notice
pC1.-iods provided [or in this Lease shall be sufficient in
either or any such case.
(9) The parties hereto shall, and they hereby do,
waive trial by jury in any action, proceeding, or counterclaim
brought by either of the parties against the other on any matters
whatsoever arising out of., or in any way connected with, this
Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Premises, and/or any claim of injury or damage
arising out of the Premises, the Building, or the Shopping Center.
(h) All rights and remedies provided he1..ein or
otherwise existing at law or in equity are cumulative, and the
exerci.se of aile or more rights or remedies by either party shall
not preclude or waive ita right to the exercise of imy or all of
the others.
pJ!KIlARGE OF LIEHS
fl~J;..~. (a) The Tenant shall not cause, suffer, or per.mit the
Premises, Building, or the Shopping Center to be encumbered by any
licns of mechanic" s, laborers, or materialmen, any security
interests, or any ocher liens. Tenant shall, whenever and as often
as any such liens are filed against the Premises, the Building, or
th..~ Shopping Center and are purported to be for labor or material
furniGhed or to be furnished to Tenant, discharge without demand by
Landlord the same of record within ten (10) days after the date of
filing by payment, bonding or otherwise, as provided by law. Tenant
sh~11, upon re:tsonable notice and request in writing from Landlord,
also defend against Landlord, at Tenant's sole cost and expense,
any action, suit, or proceeding which may be brought on or for the
enforcement of any such lien and shall pay any damages and satisfy
and discharge any judgments entered in such action, suit, or
proceeding and shall save harmless Landlord from any liability,
claim, or damages rer.ulting therefrom. In default of Tenant
proelll"jng the di r;c:harge of any such lit~n, I~Cltldlord .may, without.
(lnllwl" lIotice, procure the discharge thereof by bonding or payment
Ol~ otl}(~l.wise, and all costs and expenses which Landlord may incur
in obtaini.ng such discharge shall be paid by Tenant as Additional
Rent within tcn (10) days of any demand therefor.
(b) Nothing in this Lease1 nor any approval by Landlord
of: any of Tenant's alterations or contractors, shall be deemed or
conr;trued in any way as constituting consent by Landlord {or the
mak.ing of any alterntiono or additions by Tenantj or constituting
;-1 J"0qlleGt by Land] on.!, expressed or imp] ied, to any contractor,
r;ubcontractor, laborer or materialman for the perf:ol,nance of an:,'
1<0lbcr or the [urniGhing of any materials for the use or benefit of
l~;;nd lord.
19
UlABILITY QEJ,ANDLORD
s..~tc..tjSill_U. If Landlord Ghall (ail to perform any covenant, term,
OJ~ conditi.on ot: this Lease, and if Tenant ahall recover a money
judgment i1g;linst Landlord, 8ucl1 judgment. shall be satisfied only
nllt of the proceeds of sale received upon execution o( Buch
jl1dgl1\(~llt and levy then~ol1 ng;d.lwt the right, title, and interest of
Lill1dlnn! in the Shoppin~J Center as the name may then be encumbered
ill1d I1cdtlwJ: I.ilndlonl nor any ot ltfJ pnrtncro ohnll be liable for
any de(jcielll.:Y. It ir. under.stood thilt in no event shall Tenant have
;lilY ri gilt to levy execution ng.1.i net any property of Landlord other
tltal} itr; intpre>nt in tile shoppi.ng Center. Such right of execution
nhilll I)p :mhonlillitte illHl rmhjecl: to illlY mor.tgnge or other
("'Illcllmhr'f\lH~(~ IIp01l 1:11.. Shoppi IIlJ CCI1!:CI".
lU"JjTILQ!!J.J;JiQ)~9Jm
SQ&.t.ll>.lLU. (a) Landlord shall have the right, but not the duty,
at all reasonable times, by itself or through its duly authorized
agents, to go upon and inBpect all or any part of the Premises and,
at Landlord's option, to make repairs. alterations, and additions
to the Premises, the Buildi.ng, or any part thereof, or to show the
premiseG or the Building to lenders or to prospective purchasers or
tenants.
(bl If Tenant shall fail to fulfill any of its
obligations hereunder, Landlord shall have the right to fulfill
such obligation and any amounts so paid by Landlord are agreed and
declared to he "Additional Rentl1 due and payable to Landlord from
Tenant with the next installment of Monthly Installment of Fixed
Rent due thereafter under this Lease. Any such amounts which shall
be paid by Landlord on behalf of Tenant shall bear interest fr.om
the dat~ so paid by Landlord at the rate of eighteen percent (18\)
per annum or at the prime rate of interest then. being charged by
Chase Manhattan Bank N .A., a national banking association,
whichever is higher provided that in no event shall such rate to be
charged Tenant exceed the rate otherwise permitted by law.
(el All right.s of Landlord hereunder shall be deemed to
accrue to the benefit of Landlord's mortgagee, if any.
ru~ORDINATION TO MORTGA'lli
s~~j-"..ll-J~' (a) Tenant understands, acknowledges and agrees that
this Lease is and shall be subordinate to any mortgage, ground
lease or other lien or restriction of record now existing or
hereafter placed on or affecting the premise-s, the Building, or the
Shopping Center, or any part thereof, and to any renewals,
refinatlcing or e:xtensiotlG thereof and to all advances made or
hereaft:er to be ul'1de upen the ~ecurit)' thereo(. 'T'hiA subordination
provision shall be licIt-operative and no further instrument of
subordi nat.ion Gliall be required by any mortgagee or lender.
Howe\'er, Landlord ia hereby irrevocably veated with full power and
authority to fiubordinate thiG LcaGe to any mortgage or other lien
now e.Y.isting or' hereafter placed upon the Premises, the Building,
or t~he Shopping Center as a whole. Further. Tenant agrees, upon the
demand or request of any party in interest, to execute promptly
Guch further instrumentG or certificates as may be necessary to
c,l1:ry out t)-je intent of this Section.
(b) Not",ithstanding the provisions of ,S.ection 24 (ill
hereof I any mortgagee may at any time subordinate the lien of its
mortgage to the operation and effect of this Leas~ without
obtaining Tenant'G consent thereto, by giving the Tenant written
notic(~ thCl"Cof, in which event thiG Lease shall be deemed to be
sl?ni()t~ to r;uch mortgage without regard to their respective dates of
cxecut ion, del iVl?ry, ilnd/oJ" n~cordation among t.he- 1.1.nd records of
the ("OU!lty in whicll tlH~ Shopping ('enter ir; locCit(~d, ,"inti therl~afl~r
:;Ucll 11l01tq.,q('f~ :~h;11l ha.v(' till.> r;ame dghts <.1,G to thiG LeaGC as it
.....ould llav(> h;H1, \o'n:> thiG Ll'ii:,I_' executed i'H1t! del ivep2d before the
20
execution of such mortgage.
(c) Tenant shall, within ten (IO) days from request by
I..1.ndlord, execute and deliver to such perRons as Landlord shall
flpeci.fy a statement in recOl:dablc (arm certifying that this Lease
in ullmodified nnd in full force .111d effect (or, if there have been
modiUc:atiollfl, L11<1l:. the Grime :lG in full [ol-ce and effect ao GO
modified), stating the dates to which rent ilnd other chargeD
payable under this Lease have been paid, stating that Landlord is
not in default hereunder (Ot', iC Tenant alleges a default, Btating
the nature of such alleged default) and further stating ouch other
matteni as Landlord or its mortgagee (8) or proposed purchaser (G)
shall reasonably require.
(d) In the event: any proceedings are brought for
foreclosure or in the event of the exercise of the power of sale
under nny mor.tgage or deed of truAt, Tenant shall attorn to the
purchilficr in <lny r,uch forec;loGun: or selle and recogni7.p. r:uch
plln~lIa:1(:>r: ilfi lillHUonl \lIldr.)~ thin I.P,,1.l',p',
NO WIIIVER BY LIINDWRD
~~. No waiver of any of the terms, covenants, provisions,
conditions, rules, and regulations imposed by this Lease, and no
waiver of any legal or equitable relief or remedy, shall be implied
by the failure of Landlord to assert any rights, declare any
forfeiture, or for any other reason. No waiver of any of said
terms, provisions, covenants, conditions, rules, and regulations
shall be valid unless it shall be in writing signed by Landlord. No
w"iver by Landlord or forgiveness of performance by Landlord in
respect to one or more tenants of the Building shall constitute a
waiver or forgiveness of performance in respect to Tenant.
Yb~ OF PREMISES
.s~i.m1....1.2.' Tenant shall deliver and surrender to Landlord
possession of the PremioeG (including all of Tenant's permanent
work upon and to the Premises, all replacements thereof, and all
fixt\lt:efi permanently attached to the Premises during the Term)
immediately upon the expiration of the Term or the termination of
t111:J t.~c1.r;f? in i'luy othe)~ WilY in i'lfi good condition and repair as the
fielmc w~r:e Oil the Commencement Date (losE1 by any insured casualty
and onJinClr.y wear t'\nd tCi'lr only excepted) <:l.l1d deliver the key::; at
till'!' office or LamHord or I~i1ndlord' s agent; l?%~~, l19weveI, th,1.t
upon Lrindlonl' s reque~t made at least thirty (30) days prior to the
end of the Term, or the date Tenant is otherwise required to vacate
the Premises, Tenant shall remove all fixtures and equipment
afrixed to the Premises by Tenant, and restore the Premises to
their condition on the Commencement Date (loss by any insured
Casualty and ordinaJ:Y ...ear t"'lnd L~ar only excepted), at Tenant's
sole expense. Such removal shall be performed prior to the earlier
of the end of the Term or the date Tenant is required to vacate the
Premises.
l11lMQ!llWDUM OF LEIISE
SR..t'.t.i.ol1..21. Upon request by Landlord, Tenant hereby agrees to
execute for recordation a memorandum of this Lease.
RENT DE!1I1@
~.t..tiQ1U.e.. Every demand for rent wherever and \to'henever made shall
have the same effect as if made at the time it falls due and at the
place of payment. After the Gcrvice of any notice or commencement
of L\l1Y Guit, or finCil judg;r;fOnt therein. Liln(jlord may receive and
{"oll("r.t <lny rent due, and r;uch collection or n?ceipt r;haU l1ej t!lPt.
Op0t.1tC .~r: ;1 wnivcr of nor affect r;uch Ilol'.icc>, rmit, Ot: jUdglllPllL
NQTKRS
21
S.e~..tiQIL1.9.. Any notices, requests, or consents required to be
givrm by or 011 hehr\lf: of: I~<lndlord or Tenant r;hall be in writing and
!lhi\ll he Dent overnight courier or by regintered or certified
United St<\teB nh1.il. retur.'n rp.ceipt requested, postage prepaid,
ilddrcliBcd to the pal-tier. hereLo at the respective addresses set
forth on the Re[crellce P."),g(~, or Olt such other address as may be
f;pecified from time to time, in writing. Such notice shall be
deemed given when it is deposiLed in an official United StaLes Post
Office, postage prepaid. CO}JieB of all notices to Landlord shall be
sent: to:
Lavipour & Company, LLC
4.4.4. Park Avenue South
suite 302
New York. NY 10016
~D CONSTRUCTI.Qll
.s..~..Q!L1.9., The lawf; of the Commonwealth of Pennsylvania shall
govern the validity, performance! interpretation, and enforcement
of this Lease.. The invalidit.y or unenforceability of any provision
of this Lease shall not affcct or impair any other provision. All
negotiations, considerations, representations, and understandings
bet\wcn the pClrti er; .1.re incorporated herein. This LeaBC may be
lllodifi0-cl or altered only by i1greement in writi.ng between the
p<lrtin:::. TCl1mlt. r.hilll 11,1VC no right to qui.t the Prr!mir.cG or cilncel
Of reGcind t.his Lease except as expressly granted herein. This
Lease has been negotiated by Landlord and Tenant and this Lease,
together with all of the terms and provisions hereof, shall not be
deemed to have been prepared by either Landlord Dr Tenant, but by
both equally. If any provision of this Lease is held to be invalid
or unenforceable, the validity and enforceability of the remainder
of this Lease shall not be affected thereby.
!'..QRQLMAJEURli
~ction 31. In the event that either party hereto shall be
delayed, hindered in, or prevented from performing any act required
hereunder by reason of strikes, lockouts, inability to procure
m,1terials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war, or any other reason of a
like nature not the fault of the party delayed in performing such
act! then performance of such act shall be excused for the period
of the delay and the period allowed for the performance of such act
shall he extended for a period equivalent to the period of such
delil)'. Not"with~tilnding anything contained herein to the contrary,
Tenant. r,hClll not be excused from the payment. o[ r~nt or other Gums
of mOJ\ey which m3Y become due under the terms ot this Lear-e.
1!\ljjJ_WJlD' S L!EN
.~~. (al Tenant hereby grant5 to Landlord a lien and
Gecurity interest on all property of Tenant now or hereafter placed
ill or upon the Premises, and such property shall be and remain
n\Jbject to such lien and security interest of Landlord for payment
of all rent and other Gum!:> agreed to be paid by Tenant herein.
Lill1d1ord's lien, ho....'cver, Gha1l not be superior to a lien from a
lending institution, supplier or leasing company I if such lending
institutionj supp1 ier or leasing company has a perfected security
interest in the equipment, furniture or other tangible personal
property which origin.1ted in a transaction whereby Tenant acquired
same.
(bi The provirdonG of t.his Sect.ion relating to Guch lien
ilnd Gecurity intere::;t ::;h01.11 constitute a security agree:nent under
ilnd subject to the :Ull.:i.tQInL..c~!D-!1}I.:rlli.l~Q.~ of the (..tate wherein t.he
Slloppinq C('nU~l. ir; loca.tPd, :>0 that L"ndlon1 r,h,ll1 have and may
enforC(.' <l r,cclll.ity interest on all pt:"opel~ty of Te!1ol1t now or
hereafter placed in OJ:" on the Premises, in adc1ition to and.
22
-'. '.....
CUllluli\tive of Landlordl G liens and rights provided by law or by the
oth~r terms and provisions of this Lease.
(cl Tenant agrees to execute as debtor Guch financing
nt.ltclllcnt or statements and such other documents as Landlord may
flOW 01" 11C1"cafter request in order to protect or further perfect
Landlord':> Gccurity interest. Notwithstanding the above, Landlord
Hh"J 1 lleither Gell nor withhold (rom Tenant Tenant's business
n~conln ,
QlU..IITJll'l.1lQ1llilN:r
S~tLQn-3.J_. Lnudlord hereby covenants and agrees that if Tenant
(;ha11 perform all of the covenants and agreements herein stipulated
to be performed by Tenant, Tenant shall at all times during the
cOlltilluance hereof have peaceable and quiet enjoyment and
pOfiseasi.on of the Premises \dthout any manner of let or hindrance
from Landlord or any person or persons claiming by, through, or
under J~andlord, subject, always, to the terms and provisions of
this Lease.
HOLDING QJllili
~.t.j.Q~.' If at the expiration of the Term or any renewal
thereof Tenant continues to occupy the Premises, such holding over
shall not constitute a renewal of this Lease, but Tenant shall be
-3 tenflnt [l~om month to month upon all o( the terms, provisions,
covenants, and agreements hereof, except that Landlord may, in its
501e dincretion, increase the amount of the Annual Fixed Rent
thereaft.er due hereunder to an amount equal to 200\ of the Annual
Fixed Rent being pllid immediatel)' prior to such expirations.
BROKER",
~Q!.LJ..5... Tenant represents and warrants that it has not dealt
with any real estate broker other than the real est.ate broker(s)
J int:pcl 011 the Reference Page in connection with this Lease,
1,,11111 1 on] f~h.l] 1 p,'y any comrni !"inion OJ- f0.f! clll~ stl~h broke)- (r;) aD ,1
re:mlt. of I:llin L{~a:,;c. TCIl<lllt agrees to iJldell1nify J...illldloni aga:inrit,
and hold it Ihlnnless from, all liabilities arising from any claim
reGlIlling [rom its hnvil1g dealt with any other broker in connection
wi lh thin l.er1se.
Cll.IT1.Qlli2
S~cti.on 36. All parc'lgraph titles or captions contained in this
Lease arc for convenience only and shall not be deemed part of the
('(H1t0.-v:t c! t.!l.ic LC<J.Gc.
VI\RlllT.LQ1LJ1LEB.QllQJ.1/J.S.
S_e..c.t..tQ1LJ.I, All of the terms and words used in this Lease,
regardless of the number and gender in which they are used, shall
be ueemed and construed to include any other number or gender, as
the context or r,l:nne oC this Le,':ise or any paragraph or clause
hen'in nli'lY n:quire, as if such terms and \f,'ords h.1d been fully and
propc'J"l}1 writtr!n in the a,ppropriate number and gendet:.
I,EllDJ;R:L..l\UJlQYAL
S.e.ct.i.QlUJ1, Notwithstanding anything contained herein to the
contraI~)'. Landlord' G obligations and Tenant' G rIghts under thi3
J,r>~n(> an~ conditioned upon its approv,ll by Landlord's COI1GtI"uction
l~ndcl. and p;':'rma.flI~llt If':>nder. 1n till" event Landlord ir; unable to
obtain r:urh ."Ippro\'aJG, J.,,1IHHord ell..) 1 notify Tenant of th~ b,1:>]:;
thl:"lf-fol alH1 TpJ1.1llt r;ll;ll.J have thiI,ty DO) day:) in which to ,igree
Lo fitl)' Ch,lll9t'G lequ(,Gl.ed b)' Gllch ]cndel- in order to m,)ke the within
1.(',1;;(' .1c("(>pl.1bJl'f to it. 111 the event Tenant filils to ('gn:c to allY
GlJch chalJges In'ithin t;aid thirty (30) day period, L,:l11dlo:d may
u~rmin,'lc> thir. l..I~;H;e within lh:i,'t:y (30) d,')'::; thcn.".1!ter. ]n :;uc.-h
~3
, ',~ \ .:. . .: ,. ' . " I I "', ',",.:.' '. ,", " : " ',.', ..'. ,,'1'_ '...., ,', , \ . . , ' .
event, both parties shall be released from any further liability
under thi.n i.casp..
B"CURl:!'Y.,IJIWOS1'1'
~~C.t;.i9.11_J.2.. The Security Deponit sholl be held by Landlord without
li.lbilit:y [or interest and ar. r.ccurity (or the performance by
Tenant o( Tenallt'r. coven<1ntG and obligations under this Lease, it
hein9 exprcnnly underGtood that the ~;cc\lrity Deponit ahall not be
considered all mlwmcl? p:l.ym(!l1t of rental or a measure of Tenant's
d<lmagen in case of default by Tenant. The Security Deposit shall be
pnid to Landlord upon execution or tllis Lease. Landlord may, in its
sole discretion, from time to time without prejudice to any other
I~emedy, use the Security DepoGit to the extent necessary to make
good ilny default under thio Lense or to satiofy any other covenant
or obligation of Tenant hereunder; nrovided, h.mie:Y!lr., that no
portion of the Security Deposit shall be applied towards payment of
the laa!: month'a rent hereunder without the prior written consent
of the Landlord's mortgagee. Following any such application of the
Security Deposit, Tenant shall pay to Landlord on demand the amount
E;O applied in order to restore the Security Deposit to its original
amount. If Tenant is not in default at the termination of thi.,;;
Lease, the balance of the Security Deposit remaining after any such
"ppl iC<1t:ion r:;lia 1.1 he returned by Landlord to Tenant after deduction
l-h0.n~rn)m .11lY llllp,dd obI iq;lt:.ioll of the Tenant to the I.,andlord as
may ndr.c under Lids I..cnne, including, without limitiltion, the
obligation to reGtore the Pl-emisca pursua.nt to ~t..iQ11....l.9. hereof.
It Landlor.d tr.611l3[ero its interef3t in the premiseo during the term
of this I.lease, Landlord may ilGsign the Security Deposit to the
tranoferee and thereafter f.landlord shall have no further liability
to Tellant for the return of such Security Deposit, nnd Tenant shall
look solely to the transferee for return of such Security Deposit.
li9-1ll~~RTIcrPATIQN
S~Q.I1-4Q. Neither Tenant nor any other person having an interest
in the possession, use, occupancy or utilization of the Premises
shall enter into any leaEie, sublease, license, concession or other
agreement [or use, occupancy at' utilization of the Premises which
provides (or rental or other: payment for such use, occupancy or
utilization based in whole or in part on the net income or profits
derived by any person from the Premises or portion thereof leased,
used, occupied or utilized (other than an amount based on a fixed
percentage or percentages of receipts or saler;), and that any such
purported lease, sublease, license, concession 01:' other agreement
shilll be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use, occupancy or utilization
of any part of the !TIOl:tgaged Premises.
ll~U\BD,Q\JJUill.ll.STI\I'!J:Ii"-
~ill..Q1L1-h In addition to, and not in limitation of any other
provision of this Lease, Tenant. agrees not to generate, store, use
tn~at or dispose of, nor too allow, suffer or permit the generation,
:::;tora~le, use, treatment. or disposal of, any "ha~3.rdou!; \I.'aste" or
"hazardous substance" (as those terms are detined in the Resource
Conversation and Recovery Act, 42 U.S.C Sections 6901. tl ~Q.., as
amended ("RCRAlll or t.he Comprehensive Environmental Response,
CompenGRtion, and Liability Act, 42 11.S,C. St:ctions 9601 ~ l&.Q.,
as amended ("CERCLhl: l, and any rules and regulations now 01~
h'?rcafter promulgated under ei thef~ of such acts) or any pollutant
or other cont.lminant on, in from or about the Premises or the
Shopping Center, \I.'hich hazardous material is prohibited or
contl.o1led by any fedel-al, state or local law, ordinance, rule or
regulati.on now or hereaf.ter in {~!fect. Tenant. shall ('\nd hereby does
indenmify <'1nd hold Landlord h;uinlp.GG tram <'ind against. any and ;111
JOG:>, u.)mnges, C:XPPIlSC>G, fees, claims, contr. and lia,bilities
(1Ilclud1ng, but not limited to. atto-rlleyr-' fee::; and costs of
litigiltion) ilrj,;.ill~J out of or 111 any manller relatcll to the
"reJf't1nc" or. "thl-~..telH.>(j tel(>ar;ell of., and for any cl(!an~\lp
24
......
S'l'NrB OF Nl,W YORK )
K'1N6-So ) SS:
COlm'l'Y OF NEil '[ClllK)
nEFORE ME, <l Jlotill~Y puhlic i 11 and for Gai.d cOllnt..y (,lIld
nt.1t:e, p(~rf;oI1(111y .1[J[>Qcl.l:c<l IJnvi.rl I", IJ<l'lipour, Vice Prcnidcnt of:
lfilll1pdcll Center, Inc" who acknowledged that, with due authori.ty, he
0-xecutC'rl the foreuoi.ng illr:trllllv:mt Oil heh<11f of Guid Hampden Center.,
rne. and Chnl: the snme i.f.:> the tree net nlld deed of Baid lIampden
Center, Inc. and his free act und deed i.ndividually and as such
Vice Prcr.drJl?nt.
IN TESTIMONY WHEREOF, I have hereunto Bet my hand and
of(icii'll GeaI this 3 day of ~t, 1990.
SCJ> Ten. Bel<..
-~~
Notary Pub .
SA It MENDEZ
Nolary PubliC.. ~t!ol. of NawYoftc
No,OlME60024'9
COMt.10NWEl\!JTH OF PENNSYLVANIA Com~:~~~~'F;g,~~OOO
COUNTY OF ,Cuntb.ed(.l,nJ\__
ss:
On t.i1is, the _~l"tl d.1:/ of August, 1998, before me, the
\lllden:;i.9n~(l off.i,cer, per.sOIvll1.y appcilr.ed, __~~tu_At.!ncl+______,
\,:hn flC!: I1nvll (~{JD""(l hi 1lI[j0 1. f to he tile .Vl~-..F'(e='ld~hL___ of m\~;'l' COll:;'l'
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I.lJy commission expires:
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nor encroach in any manner into the covered
sidewalk.
c. No unfinished wall area will be permitted on
the storefront.
d. Storefront material shall be selected (or.
durability and freedom from mnintemmco.
e. 'I'0.mpor<lry r.t:orcfr.ont: If <l Tenilnt'B work in not
cOlllpletp.d within t1l0. tilll~ rr;>quircd by thio
1.0.ar.~ (Ol', i II <lily 0.v(,!llt, i r, lIot completed 011
the grand opening date), L<lndJord may. at
Tenant' f3 expense, install a tempOrt1ry
storefront or barricade.
3. lriS~: Tenant shall secure, pay for and
maintain, or cause its contractor(s) to secure, pay
(or rmd maintain, as the case roilY be, during the
continuance ot construction and fixturing work
within the leased premises, workman Compensation
Employer.s Liability Insurance; comprehensive
General Liability Insurance (including Contractors
protective Liability); Owner's Protective Liability
Insurance, insuring Tenant against any and all
liability to third parties for damage due to bodily
injury and property damage liability; and Tenant's
Builder's Risk Insurance; and statutory Automobile
Insurance.
All of the foregoing insurance policies shall be
with an insurance company approved by Landlord and
the insurance 1 imi ts contained therein shall be
a.cceptable to Landlord. In addi.tion, the aforesaid
'1'mlilTlt' f1 1111mrance pol icies shall name Lillllllonl,
it::; Lender, its Architect and its General
contr<:1ctor al~ an additional insured and Tenant's
cuntr.actor shall deliver necessary evidence o( .111
of the foregoing policies to Landlord.
NO WORK SHALL BEGIN UNTIL ALL INSURANCE
CERTIFICATES ARE IN POSSESSION OF LANDLORD.
4. Each tenant shall be responsible for the cost of
delivery and arranging all receipt and unloading of
all materials and equipment pertaining t~ his work.
5, Q&.8NING OF PREMISES: The Tenant shall. at all
times, keep the premises free from accumulations of
waste materials and/or rubbish caused by his
employees, workers, or contractors. Tenant shall
maintain the premises in a clean and orderly
condi t ion during construction and merchandising.
Tenant shall promptly remove all unused
construction materials. equipment, shipping
containers, packaging, debris, and flammable waste
from the Shopping Center. Tenant shall contain all
construction materials, equipment, fixtures,
merchandise, Shipping containers and debris within
the premises. The common exter'ior areas of the
Shopping Center shall be clear of Tenant's
equipment, merchandise, fixtures, refuse and debris
at all times. Trash storage within the premises
shall be conf ined to covered metal contains. Tenant
is responsible for the removal of all trash and
debris from Tenant's premiGes.
6,
~ERTr~JJL9F OCCUPANCY:
Gecure a eel-tificate of
The Tenant shall
Occupancy from the
D.2
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EXHIBIT IIEII
RULES AND REGULATIONS
1. Landlord reserves the right to change from time to time the
format of the signs or lettering on the signs, and to require
1:'l?placemcnt of any signs pn~viously approved pursuant to
Section 16 to conform to Landlord's new standard sign criteria
cstilbl iohed pursuant to any remodel in9 of the Shopping Center.
;:. 1'011illll: r:hil] 1 no!:, without the prior written COI1r;ent of:
J,nndlord (i) lJ.1int, decoJ:ilt,e or mflke any changes to the store
fnH1t of the Premi.nco; or (i.i) inotall any exter.ior lighti.ng,
awning or protrusions, signB, advertising matter, decoration
OL~ painting visible from the exterior of the Premises or any
coverings 011 exterior windows and doors, excepting only
dignified displays of customary type in store windows. If
l,andlord objects in wri ting to any of the foregoing, Tenant
shall immediately discontinue such use.
3. Tenant shall not (i) conduct or permit any fire, bankruptcy or
auction sale (whether real or fictitious) unless directed by
order of a court of competent jurisdiction, or conduct or
permit any legitimate or fictitious flGoing Out of Businessu
sale nor represent or advertise that it regularly or
customarily sells Merchandise at "manufacturer' 511,
I1distributor's'l, or "wholesale", I1warehouse", or similar
pr.ices or other than at "off:pricen or at "retailn prices; (ii)
use, or permit to be used, the malls or sidewalks adjacent to
Fiuch Premises, or any other area outside the Premises for
solicitation or for the sale or ciisplay of any merchandise or
for any other business, occupation or undertaking, or for
outdoor public meetings, circus or other entertainment (except
fo]~ promotiollill activitiAs in cooperation with the management
of the Shopping Center or aTl association of merchants within
Ute Shopping Center); (1 ii) use or pennit to be used any soulld
broadcasting or amplifying device which call be heard outside
of the Premises or any flickering lights; (iv) operate or
cause to be operated any video games or transportation
devices; or (v) use or permit to be used any portion of the
Premises for any unlawful purpose or use or pennit the use of
any portion of the Premises as regular living quarters,
sleeping apartments or lOdging rooms or for the conduct of any
manufacturing business.
4. Tenant shall at all times keep the Premises at a temperature
sufficiently high to prevent freezing of water pipes and
fixtures. Tenant shall not, nor shall Tenant at any time,
permit any occupant of the Premises to: (i) use, operate or
maintain the Premises in such manner that any rates for any
insul-ance carried by Landlord, or the occupant of any premises
within the Shopping Center, shall thereby be increased; or
(ii) commit waste, perform allY acts or carryon any practices
....'hich may inj'lJre the Shopping Center or be a nuisance or
menace to other tenants in the Shopping Center.
S. Tenant. shall not obstruct any sidewalks, passages, exits,
~l1trnnc(>o, truck ways, loading docks, package piCk-up
fit,1t ionn, pedestrian Gidcwalk and rampri, first <'lid and comfort
st.a.tions, or stairways of t,he Shopping Center. No tenant and
110 employee or invitee of any tenant shall go upon the roof of
the Shopping CeIlter without. notifying the Landlord.
6. Lnndlord .....ill furnish Tenant free of chilrge with two keys to
each door lock in the Premises. Landlor"d may make a reaGonablt'
('"horge (or any additional keys. Tenant., upon the termination
oi itr: ll?!1i"illCY, shall deliver to Lam1lOJ-d the keys of all
d'.Jun:; .....hich have been furnished to Tenant, and in the event of
] 0:35 of any keys GO fun)i ::;heJ, GIlall p~'iy Landlord then?for.
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7. If Tenant req~i.res telegraphic, telephonic, burglar alarm or
similar servIces, it shall first obtain and comply with
r,andlor.d's instructions in their installation.
O. Tenant ohall not place a load upon any floor which exceeds the
designed load per square foot or the load permitted by law.
Landlord shall have the right to prescribe the weight, size
and posi.tion of flll equipment, materials, furniture or other
fJl."opcrty brought into the premiscn. Heavy objects shall stand
011 such platforms aFi determined by Landlord to be neceGsary to
properly distribute the weight. Business machine::: iJ.nd
mechanical equipment belonging to Tenant which caUDe noise or
vibr.ation that may be transmitted to the structure of Tenant' 8
store or to any other space to such a degree as to be
objectionable to Landlord or to any tenants shall be placed
and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other similar devices. The persons employed to
move equipment in or out of Tenant's store must be acceptable
to Landlord. Landlord will not be responsible for 10s8 of, or
damage to, any equi pment or other property fr.om any cause, and
.111 d,1111aCJ(! dOII0- to the Shopping CenLer by tnninl:ninjng or
nlovill~l mlt:h equiJMl0.llL or ollie!: IH-"OPP.L'ly nll"ll he I:ep.1ircd ;lL
the expellGC o( Tenant.
9. The toilet rooms, toilets, urinals, wash bowls aud other
apparatus shall not be used for any purpose other than that
for which they were constructed. No foreign substance of any
kind whatsoever shall be thrown therein, and the expense of
any breakage, stoppage or damage resulting from the violation
of this rule shall be borne by the tenant who, or whose
employees or invitees, shall have caused it.
10. Tenant shall not install any radio or television antenna,
loudspeaker or other device on the roof or exterior walls of
Tenant's store. Tenant shall not interfere with radio or.
television broadcasting or reception from cr in the Shopping
Center or elsewhere.
11. Except as approved by Landlord, Tenant shall not damage
partitions, woodwork or plaster or in any way deface the
pr.emises. Tenant shall not cut or bore holes for wires. Tenant
shall not affix any floor covering to the floor of the
J1remines in <lny m<lnner except an approved by Landlord. Tenant
nhall repair any damage resulting from noncompliance with this
rule.
12. Tenant. shall not install, maintain or operate upon the
Premises or in any Common Areas under the exclusive control of
Tenant any vending machine or video game without Landlord's
prior wri.tten consent.
13. Tenant shall store all its trash and garbage in containers
within its Premises and/or in the porticn of the Common Areas
designated by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot. be disposed of in
the ordi.nary and customary manner of trash and garb"ge
disposal. All garbage and refuse diEposal shall be made in
accordance with directions issued from time to time by
Landlord.
14. No cooking shall be done or permitted by Tenant on the
Premises without Landlord's prior written consent, except for
brewing coffee and similar beverages and use of a oingle
mi crowave oven by employees only and in ani' event will not
permit odors to emanate from the Premises provided that such
use is in accordance with all applicable federal. state and
citjO laws. codes, ordinances, rules and regulations.
E-2
1". No animation, moving lights, or floodlight illumination
oha11 be pel~mitted.
G. The l\i1n\C ;&l1d/or. l1L:nmp of the sign contractor or sign company,
or hotll, Bllilll not be expor;ed to view.
II. Sigllfl, nymholr:, illltl/Or: l:l"ildcmtlr.I~G must have a pr'climinilry
npprovill by 1~<1lHnOJ~d before ohop drnwinglJ are executed.
1.. One sign, or other gr;'jphic trcJ.tmcnt, iG allQ'oo.'Cd per
storefront elevation. Stores with two storefront elevations
may have il second sign with the written approval of the
I~andlord. Such second OigllS should maintain the same sign
message, graphic techni.que and design intent as the first
sign.
J, Signing is 1 imi ted to trading name or logo only.
K. All signing muot occur on the sign bnnd unless otherwise
approved.
L, Color of race\tlay must match sign band color.
PROHIBITED SJ~
A. Paper signs, cardboard and hanging signs and/or stickers
utilized as signs.
B. Si.gns of a temporary character or purpose, irrespective of the
composition of the sign or: material used therefor.
C. Moving signs.
D. Pictures or paintings.
E. Box type signs or signs with formed plastic letters.
r. Advertising devices, slogans, merchandise or several listings.
G. t"loving or rou.:!.t:ing obj ects.
H. Back illuminated signs, "haloll effect letters.
I. Moving or flashing lights.
J. Painted on or luminous letters.
K. Cloth, wood, paper or cardboard.
L. Free Gt<1nding signs or sandwich bORrds.
r.,. Noise making devices.
N. I1oxes. cabinets, frames, transparent or translucent panels.
O. Rooftop signs or banners, except [or those beneat.h canopy, as
approved by the Landlord.
P. Names of designer, manuL"lcturer or installer.
Q. Any other slgns, graphics or components which the Landlord
determines to distract from the overall center theme.
R. Individual dimensional wood, metal or plastic letters.
s. Formed plastic or injected molded plastic signs.
T. Pn)jecti n9 signs and banners.
U. ExpoGcd neon tubing.
F-2
. > ' . .~', . - . . . : ' ." " .' '. \ '
and all de>mands and notices of an}' ~nd in connection with this
gUiln1l1l:y or any Guaranteed Payment OJ~' Guaranteed Obligation,
"!. Th~ \lIH1el~l1i9Iled h01:r:>by acknowledges full and complete
lIol ice ml(l J~lIowl.(~dgo of: all of (:l1e tcnno, conditiolllJ, covCllantu,
ouli'ltltionn and ,lgrcem~llts of the l,eaE8.
01, The payment by the lll1derGigned of any amount pursuant to
this ~JlIiH..1nty shall not in any WilY entitle the undersigned to any
right. title or inl:cn:cHL (whether by subrogation or otherwise) of
(:l1c Tenant under the Lease or to ilny Gecurity being held [or ,lilY
(~\Iill'.lllt:epd 1\1ynll:mt or Guaranteed ObliqC1.tioll.
S. If Tenant filill'3 to make such payments as provided above,
or if Tenant in otherwise in default under the Lease all said
tel:mination dilte, thi.s gUilranty shall not terminate and shall be
continuing, absolute and unconditional and remain in full force and
{~ffpCI 11111: i.1 "1] GU.1r.1l1te0.d P<1ymcntr; ,1ro n1.1dc, nl] GUllrill1teed
Obl.iqill:.ionn .1n' fl0I'foJ'tl10.d, c1nd .111 ohlig,ltionl> of the I1ndcnJiqn~d
lll\(I"'l' thin ~JIl"rillll:y iln~ fulfilled.
6. This guaranty shall also bind the successors and assigns
of the undersigncd and inure to the benefit of Lessor, ita
Succnl1Gor.r; ilnd aGsigns. This guaranty shall be construed aCCording
to thc laws of the Commonwealth of PennGylvania, in which state it
~;Ilall bl:' performcd by the undersigned.
.,. If this guarant}' is executed by more than one entity, all
singular nouns and verbs herein relating to the undersigned shall
i Ilcl ude the plur.al number and the obI igat ion of the several
guar;ultors shall be joint and several.
8. In the event of default hereunder and also when the tenn
of the Lease nhall have expired, it shall be lawful for any
i1ttOJ:ncy of any court of record to appear as attorney for the
llnderl1igned tiS well al> for all persOIw claiming by, through or
under the undersigned and to sign an agreement for entering in any
competent court an a.micable action against the undersigned and all
persons claiming by. through or under the undersigned and to
l"hcrein confess judgment for damagefJ for amounts due hereunder
together with costs of suit and attorneys fees of five percent. of
the amount claimed, for which this document shall be sufficient
warrant. Thereupon, if L;mdlord so dcnircn, ,111 appropriate writ of
0X0Clltioll may il~r,ue forthwitli, without an}' prior writ or proceeding
Wh,ll::;ocvpr, provided that if for any reason after such action Gha11
h.1V0 b('(.I11 commenced Lilndlord shall have the right. [or the samc
d(>fault and upon 11I1Y l'lubscqucnt defaul t Or defaults, or upon the
ter'mination of thc Lease or of the undersigned's rights as
hereinbefore set forth, to bring one or more further action or
~ct:i_on:J a::; hcrcinbcf:ore. Bet forth, and to contesG judgment as
hereinbefore provided. Notwithstanding anything contained in this
document to the contrary, the right of Landlord to initiate an
action as specified above shall not preclude or limit Landlord's
right to initiate any other action.
9. In any amicable action for rent and other GUms, Landlord
shal) firGt caUGe to be filed in such action an affidavit made b}'
Landlord or someone acting for Landlord, fetting forth the facts
neCCf'G,1ry to authorize the entry of judgment and i[ a true copy of
lhiG document (and of the truth of the copy nuch affidavit shall be
nu!ficient evidencel shall be filed in such cuit, action or
actions, it Ghall not be necesGary to file the original as a
warrant of attorney, any rule of court, cuatom or practice to the
contrary notwi thr..tanding.
10. The underaignc:d expreGsly waives:
a. The> l-ight to delay execution on any real est.ite
that may be> }evied upon to collect. .in}' amount which
may become du{~ under the It'?>rms And cone!itiol1G of
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