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Home My WebLink About99-05002 I` 1q- O Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 LMRES REAL ESTATE ADVISERS, INC., t1a EASTERN RETAIL HOLDINGS, L.P., Plaintiff V. JMR FOODS, INC., t/a LITTLE CAESAR'S PIZZA, a/k/a J.M.R. FOODS, INC., Defendant CONFESSION OF JUDGMENT FOR MONEY DAMA CIVIL ACTION - LAW IN EJECTMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against the Defendant as follows: Unpaid rent from March 1999 through November 2002 $ 70,599.99 Unpaid taxes, insurance, and common area maintenance charges $ 9,009.00 5% late charge $ 3,980.45 1.5% interest (per month) from 04/01/99 through 09/01/99 $ 6,269.21 20% attorney fees $ 17,971.73 TOTAL $107,830.38 Respectfully submitted, :124509 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99 *1e. S' as P--, C i. JOHNSON, DUFFIE, STEWART 8, WEIDNER By: K David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, LP., Plaintiff Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. V. CIVIL ACTION - LAW JMR FOODS, INC., Ua LITTLE CAESAR'S : IN EJECTMENT PIZZA, a/k/a J.M.R. FOODS, INC., Defendant COMPLAINT PURSUANT TO Pa.R.C.P. 2951(b) FOR CONF SS/ON OF J /DGMENT FOR MONEY DAMAC 1. The Plaintiff, LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, L.P., is a Delaware limited partnership with offices and a principal place of business at 1735 Market Street, Philadelphia, Pennsylvania 19103. 2. The Defendant, JMR FOODS, INC., t/a LITTLE CAESAR'S PIZZA, a/k/a J.M.R. FOODS, INC., is a business entity of undetermined nature with a place of business at 105 South Sporting Hill Road, Mechanicsburg, Pennsylvania 17055. 3. On or about October 8, 1992, Plaintiffs predecessor and Defendant entered into a Lease Agreement for the premises located at Silver Springs Commons, Store No. 3, Mechanicsburg, Cumberland County, Pennsylvania, a true and correct copy of which is attached hereto as Exhibit "A." True and correct copies of assignments by which Plaintiff became entitled to enforce the Lease are attached hereto as Exhibits "B" and "C." 4. On or about December 31, 1997, Plaintiff and Defendant entered into a Lease Amendment, a rue and correct copy of which is attached hereto as Exhibit "D." 5. Said Lease Agreement (and the Amendment thereof) has not been assigned by the Plaintiff. 6. No judgment on the Lease Agreement has been entered in any jurisdiction. 7. The aforesaid Lease Amendment requires Defendant to pay unto Plaintiff the sum of Two Thousand Sixty-six and 67/100 Dollars ($2,066.67) per month for the period from December 1, 1997, through November 30, 1999 with subsequent increases as set forth in paragraph 5 of Exhibit "D". 19998. Defendant has failed to make the required monthly rental payments from and after March . 9. As a result of Defendant's failure to make the monthly rental payments, the remaining monthly payments (through November 2002) have become immediately due and payable. 10. Pursuant to Paragraph 1.1(H) of the aforesaid Lease, Defendant is required to pay taxes, insurance, and common area maintenance charges in the amount of $273.00 per month. 11. Defendant has failed to pay any such charges from and after March 1999. 12. Pursuant to Paragraph 14.6 of the aforesaid Lease, Defendant is required to pay interest at the rate of one and one-half percent (1.5%) per month on any unpaid amount. 13. Pursuant to Paragraph 14.6 of the aforesaid Lease, Defendant is required to pay late charges in the amount of five percent (5%) of the unpaid rent. 14. Pursuant to the aforesaid Lease Agreement, Defendant is required to reimburse Plaintiff for Plaintiffs "reasonable" attorney fees. 15. The fees incurred in this case and Plaintiffs customary attorney fees equal twenty percent '20%) of the amount due. 16. There is justly due and owing to the Plaintiff from the Defendant on account of the aforesaid breach the sum of One Hundred Seven Thousand Eight Hundred Thirty and 38/100 Dollars ($107,830.38) calculated as follows: Unpaid rent from March 1999 through November 2002 $ 70,599.99 Unpaid taxes, insurance, and common area maintenance charges $ 9,009.00 5% late charge $ 3,980.45 1.5% interest (per month) from 04/01/99 through 09/01/99 $ 6,269.21 20% attorney fees $ 17,971.73 TOTAL $107,830.38 17. Plaintiff is entitled to immediate possession of the aforesaid premises. 18. Plaintiff has demanded the aforesaid sums and immediate possession from Defendant, but Defendant has neglected and refused and continues to neglect and refuse to pay the same or any part thereof. WHEREFORE, Plaintiff demand judgment against the Defendant for damages in the amount of One Hundred Seven Thousand Eight Hundred Thirty and 38/100 Dollars ($107,830.38) plus costs and interest and such other relief as this Court deems just and appropriate. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: Ak David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :124424 Attorneys for Plaintiff I, Jekn r A nd/o /O?j do verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, L.P. By: Dated: 7 Za `? Exhibit A SILVER SPRING COMMONS SHOPPING CENTER STORE LEASE INDEX TO LEASE -To- J71R FOODS. INC. ARTICLE or SECTION CAPTION AGE 1. GRANT AND BASIC TERMS....... ... .. 1 Section 1.1 Basic Data... . ......, ... 1 1.2 Construction of Demised Premises .......... 2 1.3 Demised Premises.. .. ....... ... 3 1.4 Acceptance of Demised Premises............ 3 1.5 Term of Lease ............................. 3 1.6 Option to Extend.......... .............. 3 II. RENT Section 2.1 ... .. ......... .... .. Annual Minimum Rent... . ...... 4 4 2.2 Commencement of Rent and Other Charges.... 5 2.3 Taxes .. ...... ............... 5 2.4 Common Area Maintenance Charges........... 6. 2.5 Adjustment of Minimum Rent ................ 7 2.6 Percentage Rent ........................... 7 2.7 Gross Sales ............................... 8 2.8 Record Keeping ............................ 9 2.9 Audit ..................................... 10 2.10 Late Charge.. ............ 10 2.11 Definition of Additional Rent ............. 10 III, USE OF DEMISED PREMISES ................... 11 Section 3.1 Tenant's Use.... ....................... 11 3.2 Continuous operation ...................... 12 3 Radius of operation ....................... 12 -.4 Utilities ................................. 12 3.5 Signs.. .... ... . 12 3.6 .. ............ Affecting Tenant's Business ............... 13 3.7 Sewer Discharge Limitation.. .............. 14 IV. COMMON AREAS ......... ................... 14 Section 4.1 Definition of Common Areas ................ 14 4.2 Common Area Operating Costs ............... 14 4.3 Control of Common Area .................... 15 V. CONSTRUCTION AND ALTERATIONS .............. 15 Section 5.1 Landlord's construction ................... 15 5.2 Tenant's Alterations ...................... 15 5.3 Builder's Risk..... ................. 16 5.4 Tenant's Discharge of Liens ............... 17 VI. MAINTENANCE AND REPAIRS ................... 17 Section 6.1 Landlord's obligations .................... 17 6.2 Tenant's Obligations.... ............... 17 6.3 Surrender of Demised Premises ............. 19 l/ ARTICLE 2X SECTION CAPTION GE VII. •INSURANCE AND INDEMNITY Section 7.1 ................... Casualty Insurance 19 7.2 .. . . Waiver of Subrogation....•.• " .... 19 7.3 Increase in Fire Insurance Premiums 20 7.4 ....... Liability Insurance 20 7.5 .. Business Interruption Insurance 20 7.6 .. Indemnification of Landlord 21 7.7 .....•. Plate Glass .•... 21 7.8 ... ...............•. •. Landlord's Mortga ee •...•..... 21 VIII. g .. SUBORDINATION, NOTICE, ESTOPPEL AND 21 ATTORNMENT Section 8.1 ....... . Subordination.. . . ..•... 22 8.2 ....... .. . ......... ...... Notice to Landlord. . 22 8.3 . Estoppel Certificate ...•...•..•.••. •..... 22 8.4 .. . . ... . . .......... Attornment 23 8.5 ................................ . Assignment of Rents . . • . . •• 24 IX. .. .. ASSIGNMENT AND SUBLETTING 24 Section 9.1 ................ Consent Required 24 X. .. ... WASTE, GOVERNMENTAL AND INSURANCE 24 REQUIREMENTS AND HAZARDOUS SUBSTANCES 26 Section 10.1 .. Waste or Nuisance 10.2 .. ... ..•... Insurance Requirements 26 10.'3 .. Hazardous Substances ...... . .... 26 10.4 ..... Government Permits • •.... 26 10.5 ........•..•..•.. .... ... Survival 28 XI ... ... 28 . ADVERTISING AND PROMOTIONAL PROGRAM..... 28 Section 11.1 .. Advertising and Promotional Program....... 28 XII• DESTRUCTION.. ..... . 29 Section 12.1 Total or Partial Destruction.. 29 12.2 Partial Destruction of Shopping Center.... 30 12.3 Tenant's Restoration....... 31 12.4 Substantial Damage. ................. 31 XIII. ... 6.. EMINENT DOMAIN Section 13.1 ......... ... Condemnation .... •.... 31 13.2 ... . .. Restoration of Demised Premises 31 XIV. .... DEFAULT OF TENANT ....................... .. . 31 32 Section 14.1 Default 14.2 ........................... . .... Remedies 32 14.3 .. ......... .... Additional and Percentage Rent 33 36 14.4 ..... Guarantors...... ..... 36 14.5 ........ Bankruptcy or other Default 14.6 ....... Failure to Pay, Interest .................. 36 38 XV. ACCESS BY LANDLORD........ 38 Section 15.1 .. Right of Entry 38 XVI. .. ......................... TENANT'S PROPERTY........ 39 Section 16.1 Taxes on Leasehold .......... . 39 16.2 .... ..... Loss and Damage ........... 39 16.3 ................ Notice b Tenant XVII. y .......................... HOLDING OVER, SUCCESSORS .................. 39 40 Section 17.1 Holdin Over g .............................. 40 ARTICLE 2X SECTION CAPTION • PAGE 17.2 •Successors and Assi ns VIII. g .. QUIET ENJOYMENT .••••••.••.•••••• 40 Section 18.1 „ •.••••••••••• Landlord's Covenant 40 XIX .. ............•••..••.. MISCELLANE 40 Section 19.1 OUS.. •• Waiver. .•.•.•..•.•• 41 19.2 ............ . . Accord and Satisfaction 41 19.3 ................... •••• No Partnershi 41 19.4 p........ ...... .............. Force Majeur 41 19.5 e .. Landlord's Liabilit .. ..•.•..• 41 19,6 ..... y.. Notices and Payments .••••••.••.•.• . 41 19,7 ... .. ......." •... Financial Statements . 42 19.8 .. • • .. • " • • " • " Guarant 4 2 19.9 ...... ors .. .••••• Captions and Section Numbers 43 19.10 .. •••••••••••• Definiti 43 19.11 ons.. .•.•.••• Partial Invalidity ... 43 19.12 .... ..................... • Recordi .•••.. ..•• 43 19.13 ...... . ng.. ••.•. Entire Agreement ...••.••.•. 43 ` 19.14 .. ........................ Surviv l 43 19.15 5 a .. ............................... Applicable Law ....... 44 19.1 ..................... Consents and Ap rovals 44 19.17 p .. Auth it .........•..•...•. 44 19.18 or y.. When Lease Becomes Effective •..• 45 19.19 ........ Inter t i .••••.••.••• 45 19.20 pre at on.. .......................... Brokers ... 45 19.21 •....• Landlord's Fees and Expenses 46 19.22 .............. Other Agreements 46 19.23 .. Shift Clause •••.••.•.•••...••••••• 46 19.24 .. Trade Fi t 46 x ures ............................ 47 XX. SECURITY AND RENT DEPOSITS ..... 47 Section 20.1 ........... Amount of Security Deposit ' 47 20.2 ................ Use and Return of Security Deposit........ 47 20.3 Rent Deposit XXI .. ............. 48 TENANT COVENANTS, BASEMENTS .. .••? 48 Section 21.1 Tenant Covenant •••...•. 21.2 .. . .. Ea 48 sements .................. ............ 49 E$BIBITS• ' A. Demised Premises B. Landlord 's Work C. Percenta ge Rent Statement D. Rules an d Regulations E. Sign Cri teria F. Tenant's Work G. Guaranty Agreement INDENTURE OF LEASE THIS INDENTURE OF LEASE made as of the day of 6k - MM/',J 199'0., by and between the landlord named in Section 1.1(0) (hereinafter referred to as the "Landlord"), and the tenant named in Section 1.1(A) below (hereinafter referred to as the ("Tenant"). W I T N E S S E T H• ARTICLE I: GRANT AND BASIC TERMS 1.1 BASIC DATA' The following sets forth basic data hereinafter referred to in this Lease, and, where appropriate, constitute def- initions of the terms hereinafter listed. A. TENANT: B. TRADE NAME; SITTLE CAESAR?S PIZZA C. SHOPPING CENTER NAME: Silver Spring Commons D. DEMISED PREMISES: STORE#: 3 WITH APPROX. 1_,600 l20? x 801 SQ. FT. E. ORIGINAL TERM LENGTH: MSMMMM?r F. OPTION(S) 6 LENGTH: 1VZS°''Er$`-WA-it G. MINIMUM RENT: YEAR(S) 1- 2 @ $1.866.67 YEAR(S) 3- 4 @ $1.933.33 YEAR(S) i @ $2.000.00 H. ESTIMATED FIRST YEAR PRORATA LEASE (SUBJECT TO ADJUSTMENT RPR - B. Y6 -1Ar9 - 7/, 1Y (i) Taxes: (ii) Insurance: Common Area: Totals PER MO., $22.400 ANNUALLY PER MO., $23.200 ANNUALLY PER MO., $24.000 ANNUALLY CHARGES AT COMMENCEMENT OF OVER TERM OF THE,. LEASE): $166.67 per mo. $ 2.000.00 ann. $ 26.67 per mo. $ 320.00 ann. $ 80.00 per mo. $ 960.00 ann. $273.34 per mo. $ 3.280.00 ann. Copies of notices sent to tenant shall be sent to: Scott K. Lites P.C. 1028 Buhl Buildino Detroit. MI 48226 Perce. -"e of overall Taxes, Ins,:a.,ce and gommon Area Maintenance Charges (°T.I.C:-") payable by Tenant: _*%. • Prorata share to be determined. I. PERCENTAGE RENT: None J. OPTION PERIOD RENT: OPTION 1 YEAR(S) 6-7 @ $2,066.67 PER MO., $24,800 ANNUALLY YEAR(S) Si9 @ $2.133.33 PER MO., $25.600 ANNUALLY YEAR(S) 100 _ @ $2,200.00 PER MO., $26.400 ANNUALLY OPTION 2 YEAR(S) 11-12 @ $2.333.33 PER MO., $28.000 ANNUALLY YEAR(S) 13-14 @ $2.466.67 PER MO., $29.600 ANNUALLY YEAR(S) 15 _ @ $2.600.00 PER MO., $31,200 ANNUALLY PERCENTAGE RENT: None K. SECURITY DEPOSIT: $ -0- L. 1st MONTH RENT DEPOSIT: $2.140.01 (INCLUDES T.I.C.) M. USE CLAUSE: To be used for the sale at retail of N. GUARANTOR(S): MARK J. WILSON AND RICHARD A. WILSON 0. LANDLORD: Silver Spring Center Limited Partnership C/o ABS Development Company 410 Asylum Street, Suite 215 Hartford, CT 06103 P. REALTOR: N/A 1.2 CONSTRUCTION OF DEMISED PREMISES: Landlord agrees to deliver a substantially completed store space on or before twelve (12) months from the date of this Lease; provided, however that in the event Landlord's work is delayed or hindered by strike, casualty, fire, injunction, local governmental action, inability to secure materials, or restraint of law, unusual action of the elements, or any other cause beyond the control of Landlord, then said period shall be extended to the extent of such delays. Tenant shall have the option of cancelling and terminating this-.Lease by giving written notice to Landlord should Landlord fail to complete Landlord's work within the allotted time frame, including extensions. If terminated, Tenant shall have no liability to Landlord and any Security Deposit held by Landlord from Tenant shall be refunded. Tenant's sole remedy, at law or in equity, for Landlord's failure to deliver a substantially completed store space as set forth in this Section 1.2 shall be the termination of the Lease and Tenant hereby waives all claims for damages, including consequential and special damages, resulting from Landlord's failure to deliver the store space as aforesaid. -2- otner purpose. 1.3 DEMISED PREMISES: The Landlord hereby leases to the Tenant and the Tenant hereby leases from the Landlord, upon and subject to the terms and provisions of this Lease, the premises (hereinafter referred to as the "Demised Premises") described in Section 1.1(D) hereof, and as shown on Exhibit A, hereto annexed and made a part hereof, in the shopping center commonly referred to as Silver Spring Commons (the "Shopping Center") located in the Township of Silver Spring, County of Cumberland, Commonwealth of Pennsylvania and more accurately described on Exhibit A-1 attached hereto and made a part hereof. Excepting and reserving to the Landlord the roof and exterior walls of the building or buildings of which the Demised Premises are a part and further reserving to the Landlord the right to place in the Demised Premises (in such manner as to reduce to a minimum the interference with the Tenant's use of the Demised Premises) utility lines, pipes, and the like, to serve premises other than the Demised Premises, and to replace and maintain and repair such utility lines, pipes and the like in, over and upon the Demised Premises as may have been installed in said building. 1.4 ACCEPTANCE OF DEMISED PREMISES: It is Landlord's intention to complete the Shopping Center as planned. However, no rights or remedies shall accrue to Tenant from Landlord's failure to construct or lease any other parts of the Shopping Center or from changes in occupancy, actual or planned. Landlord reserves the right, without Tenant's consent to (a) change the number, size, height (including additional stories) or location of buildings and common areas in the Shopping Center; (b) change or modify ingress and egress routes; and (c) add additional land or buildings or both to the shopping center. Tenant agrees to accept the Demised Premises "as is", without warranty or representation of any kind, express or implied, on the part of Landlord, provided Landlord substantially completes the Demised Premises substantially in conformity with the terms and conditions set forth on Exhibit 8 attached hereto and made a part hereof ("Landlord',s Work"). 1.5 TERM OF LEASE: TO HAVE AND TO HOLD the Demised Premises unto the Tenant for the term specified in Section 1.1(E) hereof unless sooner terminated as provided herein,. commencing on the Commencement Date as set forth in Section 2.2 hereof. If the Commencement Date is other than the first day of the month, the first year of the lease term shall be extended to include such partial month such that the first year of the lease term shall end on the last day of the month in which the first anniversary-date of the. COmmencement Date occurs. The parties hereto agree, upon demand made to the other, to execute a supplemental instrument expressing the Commencement Date of the term hereof when the Commencement Date has been determined. -3- i.6 92=U To.- ",,U: Tenant shall have the term of this --a e for an additional term of option to extend ars as set forth in Section 1.1 (F) under the same terms and condet ons contained herein except that the Minimum Rent shall be as specified in Section 1.1(J). The option to extend is conditioned upon Tenant during the original or then current term (1) Not having been in default more than three times during the then current term as defined in Section 14.1 of this Leaser (2) not being in default of any portion of the Lease and any appropriate grace period having expired (and there is no event or state of facts which, with the passage of time and/or the giving of notice, :would constitute a default of any portion of the Lease) when exercising the option and at the expiration of the original or then current term and (]) Tenant giving Landlord written notice of Tenants election to exercise the option term at least six (6) months prior to the end of the then current term. There shall be no further right to extend the term of this Lease. ARTICLE III B= 21 ANNIIAL ?f MUM RENT; Tenant covenants and agrees to pay Minimum Rent in monthly installments on the first day of each month, in advance, throughout the lease term without notice, demand or offset to the Landlord at the address of Landlord as set forth in section 1.1 (O) or at such place as the Landlord shall from time to time designate in writing. The first such payment is to be made on the Commencement Date, however, if the First Month Rent Deposit set forth in Section 1.1(L) hereof has been paid by Tenant to Landlord as provided in Section 20.01 hereof, then such amount as Tenant shall have deposited will be credited by Landlord against any amounts due hereunder for Minimum Rent upon the Commencement Date. Any fractional part of a month shall be prorated and payable in advance. Minimum Rent is based upon store location in the Shopping Center and a general measurement of square footage as computed below: (A) END STORP spACrc. SIDE To SIDE: Outside exterior wall to mid point of the adjoining neighboring wall. FRONT TO REAR: From the front outside wail housing the glass store front to the rear outside wall or in the case where stores are back to back, to the mid-point of the rear wall. (B) TNTFRZOR cTORp CpA Fc; SIDE TO SIDE: Interior mid-point of each side wall. FRONT TO R=AR: From the front outside wall housing the glass store front to the rear outside wall or in the case where stores are back to back, to the mid-point of the rear wall. -4- 10-05-1992 11:24 P 02_ Annual Minimum Rent during the original lease term is as set forth in section 1.1 (G) and during any option term as set forth in section 1.1 (J). Tenant's obligation to pay Minimum Rent is independent of all of the other covenants, conditions and obligations of either party to this Lease. 2.2 COlQ{EpCEMENT o RENT AND OTHER CR_aRGBS: The Commencement Date, which establishes the date from which the term of the Lease is measured and upon which Tenant is obligated to pay Minimum Rant, shall be the earlier of (a) ninety (90) days after Landlord delivers possession of the Demised Premises to Tenant; or (b) the date that the Tenant first opens for business in the Demised Premises. "Substantially complete" as used herein means the work performed by Landlord as described in Exhibit "B" has been completed with the exception of minor items which can be completed without material interference with Tenant's installation of fixtures or improvements. Upon the occurrence of the Commencement Date, Landlord and Tenant shall execute a Supplemental Agreement setting forth the Commencement Date. 2.3 T=@: From and after the Commencement Date with Landlord's work substantially complete, Tenant shall pay to Landlord as Additional Rent its proportionate share, expressed as a percentage as set forth in section 1.1 (A), of Real Estate Taxes, special taxes and assessments for the Shopping Center or any part thereof (as the same may be increased or diminished from time to time during the term of this Lease), excluding any taxes separately charged to or levied against Tenant (which Tenant shall pay 100%) or any other tenant (which Tenant shall not pay any proportion of). The "Delivery of Possession" as used herein shall be the earlier of (a) the date that Tenant obtains possession of the Demised Premises from Landlord, or (b) the date that landlord notifies Tenant in writing that the space is substantially complete and Tenant may install his fixtures and improvements. Notwithstanding anything to the contrary contained in Section 1.1(H) hereof, "Tenant's proportionate share" is a fraction, the numerator of which is the gross leasable area of the Demised Premises and the denominator of which is the gross leasable area of the Shopping Center as of the first day of each applicable tax year during the term hereof, provided that if the taxes for the Shopping center are increased materially because of assessment of Tenant's improvements at a higher rate than other tenants, Tenant agrees to pay any such excess taxes as Additional Rent. Tenant shall pay such Additional Rent applicable to Real Estate Taxes on a monthly basis, along with the monthly Minimum Rent. Initially, such monthly payments shall be as set forth in section 1.1(H). Tenant's proportionate share of Real Estate Taxes shall thereafter be estimated by Landlord on an annual basis for each calendar year ending on December 31. should the actual costs of Real Estate Taxes be less than each tenant paid, the amount overpaid by the Tenant will be credited towards such costs for the first month of the next year or if the Tenant is terminating, a refund shall be made provided no other charges are outstanding by Tenan dal ??J -5- Estate Taxes are more than Landlord's estimate, Tenant shall pay such excess within thirty (30) days of receiving a detailed statement from Landlord. In the event Tenant does not make said payment monthly, or reimburse Landlord at the end of any calendar year in the event of a deficiency, as aforesaid, Tenant shall be in default of this Lease. Landlord, at Landlord's option, may obtain separate taxable status for the Demised Premises, and in such event, Tenant shall pay 100% of such taxes as Additional Rent. If requested by Tenant, Landlord shall provide copies of Tax Bills to Tenant. Additionally, with respect to taxes: (A) RIGHT TC CONTEST ASSESSMENTS: Landlord may contest any and all Real Estate Taxes. The cost of any such contest shall be paid as Additional Rent in the same proportionate share as the Real Estate Taxes are paid and any refund or recovery shall be shared in the same proportionate manner. Tenant shall have no right to contest assessments without the prior written consent of Landlord. (B) REAL ESTATE TAX: Real Estate Tax means: (i) any fee, license fee, license tax, business license fee, commercial rental tax levy, charge assessment, penalty or tax imposed by any taxing or judicial authority against the Shopping Center or land upon which the Shopping Center is located; (ii) any tax imposed upon the Shopping Center by any state, county or local governmental authority including without limitation all school district taxes; (iii) any tax on the Landlord's right to receive, or the receipt of, rent or income from the Shopping Center or against Landlord's business of leasing the Shopping Center; (iv) any tax or charge for fire protection, streets, sidewalks, road maintenance, refuse or other services provided to the Shopping Center by any government agency; (v) any tax imposed upon this transaction, or based upon a reassessment of the Shopping Center due to a change in ownership or transfer of all or part of Landlord's interest in the Shopping Center; and (vi) any charge or fee replacing, in whole or in part, any tax previously included within the definition of Real Estate Tax. 2.4 COMMON AREA MAINTENANCE CHARGES: Commencing upon the Delivery of Possession and thereafter on the first of each month Tenant will pay Landlord, along with the monthly Minimum- Rent payment, as Additional Rent, one-twelfth (1/12) of Tenant's proportionate share of the annual common area operating costs, as hereinafter defined. Initially, such monthly payment shall be as set forth in Section 1.1(H). However, if Tenant's use of the Demised Premises is directly responsible for a material increase in the Shopping Center charges for common area operating costs, Tenant shall be solely responsible for such excess cost. The common area -6- ?l operating costs shall thereafter be estimated by Landlord on an annual basis for each calendar year ending on December 31. Should the actual common area operating cost be less than each tenant paid, the amount overpaid by the Tenant will be credited towards common area operating costs for the first month of the next year or if the Tenant is terminating, a refund shall be made provided no other charges are outstanding by Tenant. If common area operating costs are more than Landlord's estimate, Tenant shall pay such excess within thirty (30) days of receiving a detailed statement from Landlord. Failure to pay shall be a default under this Lease. Upon request, Landlord shall supply Tenant with copies of all bills and receipts for the Common Area Maintenance Charges. 2.5 ADJUSTMENT OF MINIMUM RENT: Intentionally Omitted. 2.6 PERCENTAGE RENT: Intentionally Omitted. 2.7 demand from the Landlord, within thirty?(30) days aft end of each lease year or partial lease year, to ca s atement of the Gross Sales of the Tenant made at n and/or from the Demised Premises for such lease a certified by Tenant's coporate financial office a copy of such statement certified by such office be delivered by the Tenant to the Landlord within 2.8 RECORD KEEPING: Intentionally Omitted. 2.9 AUDIT: Intentionally Omitted. 2.10 LATE CHARGE: If Tenant fails to pay any Additional Rent or Minimum Rent within five (5) days after it is due, Tenant shall pay to Landlord a "Late Charge" of five cents ($0.05) for each dollar so overdue to defray the cost of collection and administration. 2.11 DEFINITION OF ADDITIONAL RENT: Without limiting any other provision of this Lease, it is expressly understood and agreed that the Tenant's proportionate share of Taxes, Common Area Maintenance Charges and all other charges which the Tenant is required to pay hereunder, including, without limitation, the Promotional Charge, together with all interest and penalties that may accrue thereon, shall be deemed to be Additional (but not Minimum) Rent, and in the event of non-payment thereof by the Tenant, the Landlord shall have all of the rights and remedies with respect thereto as would accrue to the Landlord for non-payment of Minimum Rent..--Tenant's obligation to pay Additional Rent is independent of all of the other covenants, conditions and obligations of either party to this Lease. -7- ARTICLE III: USE OF DEMISED PREMISES 3.1 TENANT'S USE: Tenant shall use the Demised Premises solely for the purposes set forth in Section 1.1 (M) and for no other business or purpose without prior consent from Landlord. (A) No auction, fire or bankruptcy sales may be conducted within the Demised Premises without the previous consent of the Landlord. (B) The Tenant shall not use the malls or sidewalks adjacent to the Demised Premises. or the recessed vestibules, if any, of the Demised Premises for business purposes (including, without limitation, the distribution of handbills or advertising of any type) without the previous consent of the Landlord. (C) The Tenant shall keep the display windows of the Demised Premises clean and shall keep the same electrically lighted during such periods of time as the Shopping Center shall be open and, in addition, during such other periods of time as shall be determined by the Landlord, provided windows throughout a major portion of the Shopping Center are kept lighted during such additional periods, and for this purpose shall install and maintain a mechanical time-clock. (D) The Tenant shall at all times keep the Demised Premises fully and adequately stocked and fixtured. The Tenant shall devote the maximum possible floor area of the Demised Premises to selling space (consistent with the permitted uses hereunder), and shall not use any portion of the Demised Premises for storage or other services, except as is consistent with its operations in the Demised Premises. (E) The Tenant shall at all times fully and adequately heat and/or air-condition (as the circumstances require) the Demised Premises. (F) The Tenant agrees that it and its employees and others connected with the Tenant's operations at the Demised Premises will abide by all reasonable rules and regulations from time to time established by the Landlord by written notice to the Tenant with respect to such shopping center, a current copy of which are attached hereto as Exhibit D, but which are subject to change at Landlord's reasonable discretion. 3.2 CONTINUOUS OPERATION: Tenant shall continuously operate and keep open to the public the entire Demised Premises in good faith for the duration of the lease term from Monday through Saturday -a- during the hours Of S•10„Q?AIM tong and such other hours as a majority of the other tenants' "of the Shopping Center shall remain open, provided that tenant shall not be obligated to be open for business prior to.11:00 A.M. or after 10:00 p.M. Tenant will carry a complete stock of merchandise, maintain an adequate staff including a qualified store manager headquartered at the Demised Premises to accommodate customers and at all times promote the business through advertising and display of merchandise so as to produce the maximum Gross Sales possible. Tenant may open at earlier hours or close at a later time and open on Sunday, providing such opening is not in violation of any local govern- mental ordinance or law. Tenant may also close on major nationally recognized religious holidays and for periodic inventory. It is important to the success of a Shopping Center that all tenants have uniform days and hours of operation. Tenant acknowledges that this obligation is a material and significant inducement to the Landlord to enter into this Lease and Tenant agrees to abide by the hours and days of opening specified herein or be in violation of this Lease. 3.3 N: Tenant or any other person, firm or corporation which controls or is controlled by Tenant, or any franchise or licensee of any of them, shall not open a competing or similar business, either directly or indirectly operating within a radius of two rom the Shopping Center, during the term of this Lease. 34 UTILITIES: Tenant agrees to pay for Tenant's use of all of Hs requirements for utilities, including but not limited to, electricity, gas, sewer, heat, water and all other utilities and taxes or charges for such utility services which are used by or attributable to Tenant's Demised Premises from the date of Delivery of Possession of the Demised Premises by Landlord to Tenant. Where Landlord furnishes one or more of the utility services, Tenant shall accept and use same, paying all reasonable charges therefor. Landlord's charges shall not exceed the rates charged by local utility companies to retail customers for the same or similar services. In no event will Landlord be liable for an interruption or failure in the supply of any such utilities or services supplied by Landlord because of repairs or improvements or for any cause beyond Landlord's control. 3.5 SIGNS: It is Landlord's desire to create a Shopping Center environment that is modern and upscale. Towards this end,••d,andlord has established a uniform tenant sign criteria, (see Exhibit "E"), that will compliment and enhance the look of the Shopping Center. Tenant will not, without first obtaining Landlord's consent, place on any exterior door, wall, window, roof or fascia of the Demised Premises, any sign, awning, canopy or advertisement or other such matter including decorations and light attractions. Approved signs and approved advertisements shall be installed at Tenant's expense and maintained at all times in a good condition. 1: Tenant installs any sign not previously approved by Landlord that does not meet Landlord's sign criteria, Landlord shall have the authority, without liability, to remove and store the sign, at Tenant's sole expense and at Tenant's risk, if Tenant fails to voluntarily remove the sign within seven (7) days after receiving written notification from Landlord of the violation. Expenses incurred by Landlord for removing and storing. Tenant's sign shall be immediately paid by Tenant as Additional Rent. In addition, Landlord reserves the right at its expense to temporarily remove any or all of Tenant's signs during any period when Landlord repairs, restores, constructs or renovates the Demised Premises or other premises within the Shopping center which adjoin the Demised Premises, upon giving Tenant seven (7) days advance written notification. Attached hereto as Exhibit "E-1" is a copy of the Tenant ordinary sign specifications which the Landlord hereby acknowledges and approves. 3.6 hEPECTING TENA_NTIS SUSINESS: If Landlord leases a store in the Shopping center to a Direct Competitor of Tenant, i.e. which is principally in the pizza Take Out or Delivery business (such as Domino's Pizza or Pizza Hut Delivery)' and Tenant's gross income for the period comprizing six months after the competitor's opening for business is demonstrably reduced by twenty percent (20%) or more from Tenant's gross income for the period comprising six months prior to the competitors opening for business, then Tenant may terminate this Lease upon two (2) months notice. The term, "Direct Competitor", shall mean a business which derives over seventy percent (70%) of its gross income from either Take Out pizza or delivery of pizza. Nothing herein gontained shall restrict or prohibit Landlord, its successors and assigns, from leasing, subleasing or permitting the use of any portion of the Shopping Center to or by supermarkets, variety stores, drug stores, junior department stores, discount houses, department stores, home improvement centers price clubs or similar type stores or the equivalent thereto, any of which may be permitted by Landlord to use, assign or sublease their respective premises for any lawful purpose, including the sale or service of items to be sold or displayed by tenant hereunder. This section shall be null and void upon the happening of either: (a) cessation by Tenant of the use of the Demised Premises for the purposes permitted under this Lease; or (b) a default by Tenant of any of its obligations hereunder, which is not cured within ten (10) days after written notice thereof by Landlord. The Tenant shall indemnify and hold harmless against all liability and expenses including reasonable attorney fees resulting from the Landlord granting Tenant original rights under this Section 3.6. 3.7 SEWER DISCHARGE LIMITATION: Tenant shall be entitled to discharge sewage from the Demised Premises intg the sanitary sewer system to be constructed by Landlord for the benefit of the Shopping Center within which the Demised Premises are located, but Tenant covenants and agrees that such discharge (whether by Tenant or any other person or entity possessing or using the Demised Premises) shall not exceed an average of UO rV (the "Reserved Capacity") . The averse number of ??er'"day'"j of sewage discharged from the Demised Premises for aeachscalendar year will be based on the average daily flow during the three (3) consecutive months in any calendar year with the highest volume of sewage flow from the Demised Premises. "Average daily flow" shall be determined from the water consumption of the Demised Premises as evidenced by meter readings taken from the water meter monitoring water service to the Demised Premises, but excluding any meter readings for water used in fire sprinkler systems, fire hydrants, and/or site landscaping irrigation provided that the aforesaid excluded uses are separately metered or submetered. one gallon of water consumption shall equal one gallon of sewage discharge. The discharge of sewage from the Demised Premises in excess of the Reserved Capacity shall constitute a default by Tenant hereunder. In the event of a default, Landlord shall have the right to pursue all remedies at law and/or in equity, including the right to obtain an injunction enjoining Tenant from discharging sewage from the Demised Premises in excess of the Reserved Capacity. Tenant shall indemnify and hold Landlord harmless from any and all claims, liabilities and costs (including reasonable attorneys fees) made against or incurred by Landlord as a result, directly or indirectly, of the discharge of a quantity of sewage from the Demised Premises in excess of the Reserved Capacity. ARTICLE IV: COMMON AREAS 4.1 DEFINITION OF CO!-NON AREAS: Common areas are all areas, space, equipment, and special services provided by Landlord for common or joint use and benefit of the Tenant and other tenants of the Shopping center, their customers, employees, agents and invitees. This includes without limitation: roofs, walls, parking areas, access roads, driveways, sidewalks, ramps, stairways, wash rooms, fountains, public phones, pylon and/or other common area signs, shelters, lighting fixtures and equipment, security facilities, and the cost of maintaining these areas for the benefit of the Shopping Center. 4.2 COMMON AREA OPERATING COST: Common area operating costs include all costs and expenses of every kind and nature paid or incurred by.the Landlord (including reasonable and appropriate reserves) in operating, managing, equipping, policing (if -and to the, extent provided by the Landlord), lighting, repairing, replacing and maintaining all parking facilities (including any parking structure subsequently installed in the Shopping Center for the common use of customers and/or employees of the Shopping Center), enclosed malls (including the heating and air conditioning thereof), utilities and facilities serving the Shopping Center (including off-site utilities and facilities such as retention -11- areas and drainage facilities, all taxes, assessments, costs and other expenses related thereto), and all other common areas of the Shopping Center (including, but without limitation, all landscaping and gardening), and the fees, costs or expenses, if any, required for the maintenance and preservation of any rights arising under any reciprocal easement agreement ("REA") affecting the Shopping Center, or to fulfill any obligations arising under such an REA. Such costs and expenses shall likewise include (but shall not be limited to) water and sewer charges; utility system installation charges and assessments; costs of all roof and other maintenance, repairs and replacements performed by the Landlord; costs of the installation, operation, maintenance, repair and replacement of any energy management system; costs of the operation, maintenance, repair and replacement of any escalators and elevators; workers' compensation, public liability, rent interruption, fire insurance, extended coverage and all other perils coverage, plus all endorsements and other insurance coverages deemed reasonable and necessary by Landlord; wages, unemployment taxes, social security taxes, and personal property taxes and assessments; fees for required licenses and permits; supplies; operation of loudspeakers and any other equipment supplying music to the common areas; reasonable depreciation of equipment used in the operation or maintenance of the common areas; and an administrative fee equal to the fifteen percent (15%) of the total costs and expenses of operating, managing and maintaining the Shopping Center. CNotwithstanding anything contained herein to the contrary in no event shall the tenant's proportionate share of common area operating costs include costs of original construction, or the cost of major renovations to the Shopping Center or any management fee payable to the Landlord or to any third-party property management company except for the fifteen percent (15%) administrative fee referenced above. 4.3 CONTROL OF COMMON AREA: The common areas as defined in this Lease shall be under the exclusive control and management of the Landlord-who shall have the exclusive right to establish, revoke, modify and enforce rules and regulations governing the common areas. Tenant shall make no use of the Common Area except for non- exclusive parking in designated areas and for ingress and egress without the prior consent of Landlord. ARTICLE V: CONSTRUCTION AND ALTERATIONS 5.1 LANDLORD'S CONSTRUCTION: The construction work required to be done on the Demised Premises by Landlord prior to the..Delivery of Possession shall be as set forth in Exhibit "B". Notwith- standing anything contained herein to the contrary, the Landlord hereby represents and warrants that as of the rental commencement date the HVAC, plumbing, mechanical and electrical systems as set forth in Landlord's Work shall be in good working order and free of any latent defect. -12- ----------------------- 10-05-1992 11:26 P.04 5.2 ZMP=21 s AMRATIORB: Tenant agrees, upon Delivery of Possession of the Demised Premises, that it will with due diligence and renovation work,binstall su h3stt and ock fixture and constru uipme ctand to perform such other work as shall be necessary groriat and order to prepare the Demised Premises for the oeningpof business as soon thereafter as possible but in no event later than ninety (90) days after Delivery of Possession of the Demised Premises. In the event Tenant does not open the Demised Premises for the conduct of its business within thirty (30) days after the Commencement Date Landlord shall have the right at any time thereafter to terminate this Lease by giving Tenant written notice of such termination, whereupon this Lease shall be terminated, except for Landlord's rights and remedies upon termination as herein provided. In addition, Tenant shall not, without Landlord's prior consent, either at the inception or later in the lease term, commence any alterations or modifications without first complying with Exhibit F attached hereto and without first providing Landlord a copy of Tenant's plans, and copies of any and all governmental permits, approvals and authorizations required in connection with such work. Tenant's Plans are attached hereto as Exhibit T and are hereby approved. matters the Demied Premises concerning or that changes would alters theeeappearance he a and/or the structural integrity design nges to the interior structuralsoof the undness ofpthe Demised Premis es, consent shall be at Landlord's sole discretion. Alterations and construction plans consented to by Landlord shall be completed at Tenant's sole expense and shall be performed in a good workmanlike manner in compliance with all governmental requirements, and with all of the terms of this Lease, at such times as to cause a minimum of interference with other construction of Landlord or ongoing, operating businesses in the Shopping Center. Tenant agrees to indemnify and hold Landlord harmless against any loss, liability or damage resulting from such work. Tenant shall provide its own trash containers for construction debris and use side/service entrances where possible. 5.3 SIIILWZs RM: Tenant shall also maintain builders "all risk", fire and comprehensive general liability, workman's compensation and employer liability insurance with respect to any and all of Tenant's construction and alteration activities, naming Landlord and Landlord's mortgagees as additional insureds, in such amounts and on such terms as are satisfactory to Landlord and customary for like construction. Prior to commencing any -13- G;O 5.2 TENANT'S ALTERATIONS: Tenant agrees, upon Delivery of Possession of the Demised Premises, that it will with due diligence proceed to obtain a building permit and undertake such construction and renovation work, install such stock, fixtures and equipment and to perform such other work as shall be necessary or appropriate in order to prepare the Demised Premises for the opening of business as soon thereafter as possible but in no event later than ninety (90) days after Delivery of Possession of the Demised Premises. In the event Tenant does not open the Demised Premises for the conduct of its business within thirty (30) days after the commencement Date Landlord shall have the right at any time thereafter to terminate this Lease by giving Tenant written notice of such termination, whereupon this Lease shall be terminated, except for Landlord's rights and remedies upon termination as herein provided. In addition, Tenant shall not, without Landlord's prior consent, either at the inception or later in the lease term, commence any alterations or modifications without first complying with Exhibit F.attached hereto and without first providing Landlord a copy of Tenant's plans, and copies of any and all governmental permits, approvals and authorizations required in connection with such work. Tenant's Plans are attached hereto as Exhibit F-1 and are hereby approved. In matters concerning changes to the external appearance of the Demised Premises or that would alter the design and/or the structural integrity of the Shopping Center, or changes to the interior structural soundness of the Demised Premises, consent shall be at Landlord's sole discretion. Alterations and construction plans consented to by Landlord shall be completed at Tenant's sole expense and shall be performed in a good workmanlike manner in compliance with all governmental requirements, and with all of the terms of this Lease, at such times as to cause a minimum of interference with other construction of Landlord or ongoing, operating businesses in the Shopping Center. Tenant agrees to indemnify and hold Landlord harmless against any loss, liability or damage resulting from such work. Tenant shall provide its own trash containers for construction debris and use side/service entrances where possible. 513 AgILDERS RISK: Tenant shall also maintain builders "all risk", fire and comprehensive general liability, workman!s_..._ compensation and employer liability insurance with respect to any and all of Tenant's construction and alteration activities, naming Landlord and Landlord's mortgagees as additional insureds, in such amounts and on such terms as are satisfactory to Landlord and customary for like construction. Prior to commencing any construction work, Tenant shall provide Landlord with copies of certificate(s) reflecting such insurance coverage. -13- 5.4 TENANT'S DISCHARGE OF LIENS: Tenant shall promptly pa its contractor and materialmen for all work done upon the Demised Premises. Nothing in this Lease shall be construed to authorize Tenant or others dealing with Tenant, to charge the rents of the Demised Premises or the interest of Landlord in the estate of the Demised Premises with a mechanic's lien or encumbrance of any kind, and under no circumstance shall Tenant be construed to be the agent, employee or representative of Landlord in completing Tenant's work. All such work shall be for the immediate use and benefit of Tenant and not Landlord. Tenant shall, upon request, provide Landlord lien waivers, and should any such lien be asserted or filed, Tenant shall immediately discharge of record (either by payment or by filing of the necessary bond, or otherwise) the same within ten (10) business days. If Tenant fails to remove said lien within ten (10) business days, Landlord may at its option, remove the lien by paying the claim, without investigating the validity thereof, and Tenant shall pay Landlord upon demand the amount paid by Landlord to remove the lien, including Landlord's costs and expenses. Tenant's failure to cause the lien to be released of record or to reimburse Landlord within ten (10) business days of Landlord's request for reimbursement shall be a default of Tenant's Lease. If the laws of the state provide for filing a statutory bond to eliminate attachment of mechanic's or materialmen's liens, Tenant shall require that its contractor (or Tenant shall itself) file a statutory bond prior to initiation of construction. ARTICLE VI: MAINTENANCE AND REPAIRS 6.1 LANDLORD'S OBLiGATi0N3: Except as provided for in Article XII, Destruction, and Article XIII, Eminent Domain, Landlord shall keep and maintain the foundation and exterior walls and roof, the cost of which shall be included in common area operating costs, except when such repairs were necessitated from Tenant's actions or that of its officers, agents, customers or employees. 6.2 TENANT'S OBLIGATIONS: A. Tenant shall be responsible at its own expense for keeping the Demised Premises neat and clean and in good order, condition and repair at all times from the date of Delivery of Possession of the Demised Premises, and continuously thereafter until the end of the term hereof, including, but without limitation, replacement and restoration as required of the following: The exterior and interior portion of all doors and door checks, door locks, emergency hardware openers, and door handles; -14- 2. Windows, window molding, plate glass, store fronts, glass door panels, and showcases surrounding the Demised Premises; 3. All plumbing and sewage facilities within the Demised Premises, including free flow to the utility owned sewer line, including water meters; 4. Heating and air conditioning systems and equipment, sprinkler systems and electrical systems (after Landlord's Certificate of Occupancy has stated such systems are properly functioning) including electrical meters and wiring. Floors and floor covering, walls and wall covering, ceiling tiles and ceiling lights (including bulbs and coverings); 6. Tenant fixtures and all installations made by Tenant; 7. Repairs to the Demised Premises due to illegal entry; and P. Maintain Tenant's sign(s) in good repair as required in Section 3.5. B. dVE the-hentsng;rventilation-and•air- furnish-Landlord: a..copy?of-the!^contract-•-- --opening- and_any subseguuent contracts £?O'n?3't'tixe-original .contract. °" C. Cleanliness is important in Shopping Centers as it encourages repeat customers. Tenant shall therefore keep and maintain the Demised Premises in a clean, safe, sanitary and offensive-odor free condition and shall abide by all rules and regulations of governmental agencies and operate in compliance with all requirements of law, statute, ordinance, regulation, rule or other governmental authority affecting the Demised Premises and all appurtenances thereto. Tenant shall be responsible for trash storage and removal through rental of commercial dumpsters. Landlord will provide locations in the Shopping Center for placement of these dumpsters. If Landlord elects to.....p.rovide commercial dumpsters for trash removal, the cost of said dumpsters shall be included in Common Area Operating Costs. D. If Tenant refuses or neglects to commence and to complete repairs, Landlord may after ten (10) business days notice, at Landlord's option, place Tenant in default of the Lease and make -15- said repairs and Tenant shall pay the cost thereof plus any administrative charges, as Additional Rent upon demand. 6.3 SURRENDER OF DEMISED PREMISES: At the expiration of the tenancy, Tenant shall peaceably surrender the Demised Premises in the same condition as received by it on the Commencement Date, reasonable wear and tear expected. All keys to the Demised Premises and lock combinations to any safes or vaults which may be in the Demised Premises shall also be turned over to Landlord at the same address used for rent payment. Any and all alterations, additions, improvements, and fixtures which may be made or installed by either the Landlord or the Tenant upon the Demised Premises and which in any manner are attached to the floors, walls or ceilings (including, without limitation, any linoleum or other floor covering of similar character which may be cemented or otherwise adhesively affixed to the floor, and any heating, ventilating and/or air-conditioning equipment) shall remain upon the Demised Premises, and at the termination of this lease shall be surrendered with the Demised Premises as a part thereof without disturbance, molestation or injury. However, the usual trade fixtures and furniture which may be installed in the Demised Premises prior to or during the term hereof at the cost of the Tenant may be removed by the Tenant from the Demised Premises upon the termination of this Lease if, but only if, the Tenant is not then in default hereunder. Further, Landlord may require Tenant to remove trade fixtures, equipment and any other demising or partition walls, offices, counters or similar installations during the last thirty (30) days of its tenancy by giving sixty (60) days written notice to Tenant. Tenant shall repair any and all damage caused to the Demised Premises resulting from or caused by removal of Tenant's fixtures and for any of Tenant's alterations, installations or improvements. Tenant's obligation to perform this covenant shall survive the expiration of this Lease. In no event shall the Tenant be entitled to remove any heating, ventilating or air-conditioning equipment. Any items remaining in the Demised Premises on the termination date shall be deemed abandoned and shall become the property of Landlord and Landlord may dispose of same without liability. Any cost to remove fixtures or repair damage caused by Tenant's vacating shall be Tenant's expense and Landlord may use Tenant's Security Deposit to help defray such expenses but the Security Deposit shall not constitute satisfaction of the cost, should such cost exceed the amount of the Security Deposit. .. ARTICLE VIZ: INBIIRANCE'AND INDEMNITY... 7.1 CASUALTY INSURANCE: The Tenant also agrees that it shall continuously keep its fixtures, merchandise, equipment and other personal property from time to time located in, on or about the Demised Premises; and all leasehol'd' improvements to the Demised Premises insured by reputable; duly licensed insurance companies against loss or damage by fire with the usual extended coverage -16- 1 endorsements in amounts at least equal to the full replacement cost thereof. During the term of this Lease, the proceeds from any such policy of insurance shall be used for the repair or replacement of the fixtures and equipment so insured. Prior to the Commencement Date, and no less often than annually thereafter, and at any other time upon the request of the Landlord, the Tenant shall furnish to the Landlord evidence of such continuous insurance coverage satisfactory to the Landlord. It is understood and agreed that the Tenant assumes all risk of damage to its own property arising from any cause whatsoever, including, without limitation, loss by theft or otherwise, unless damage is caused by the negligent acts or omissions of Landlord, its representatives or employees. 7.2 WAIVER OF SUBROGATZON: Insofar as and to the extent that the following provision may be effective without invalidating or making it impossible to secure insurance coverage obtainable from responsible insurance companies doing business in the Commonwealth of Pennsylvania (even though extra premium may result therefrom), the Landlord and the Tenant mutually agree that with respect to any loss which is covered by insurance then being carried by them, respectively, the one carrying such insurance and suffering said loss releases the other of and from any and all claims with respect to such loss to the full extent, but only to the extent, of such insurance coverage; and they further mutually agree that their respective insurance companies shall have no right of subrogation against the other on account thereof. In the event that any additional premium is payable by either party as a result of this provision, the other party shall reimburse the party paying such premium the amount of such extra premium. The releases herein contained shall not apply to any loss or damage occasioned by the willful acts of either of the parties hereto. 7.3 INCREASE IN FIRE INsuRANCE PREMIUMS: Tenant agrees not to keep, use, sell or offer for sale, in or upon the Demised Premises, any articles or goods which may be prohibited by the standard form of fire insurance policy or will otherwise increase the rate of fire or other insurance on the Demised Premises. Tenant agrees to pay upon demand any such increase in premium for any insurance -- ...which may be carried by Landlord on said Demised Premises, or the Shopping Center of which the same are a part, resulting from the use of the Demised Premises by Tenant, whether or not Landlord has consented to such use. 7.4 . LIABILITY 'INSURANCE: Tenant shall, during the entire term hereof, keep in full force and effect a policy of public -liability and-property damage insurance with respect to the Demised Premises and the business operated by Tenant and permitted subtenants of Tenant in the Demised Premises in which the combined single limits of coverage shall not be less than $1,000,000.00 per occurrence. The limits of coverage shall be increased from time to time upon Landlord's request, in accordance with shopping center management practices then prevailing in the area of the Shopping Center. The -17- Policy shall be in form approved by Landlord, shall name Landlord (and such other persons as are in privity of estate with the Landlord as may be set out in notice from time to time) and Tenant as the insureds, and shall contain a clause that the insurer will not cancel, materially modify or fail to renew the insurance without first giving Landlord thirty (30) days prior written notice. The insurance policy shall be written by an insurance company approved by Landlord, authorized to do business in the Commonwealth of Pennsylvania and having a policyholders' rating of no less than "A" in the most current edition of Best's Insurance Reports. A copy of the policy or a certificate of insurance shall be delivered to Landlord. The policy shall insure Tenant's performance of the indemnity provisions of this Lease. 7.5 BUSINESS INTERRUPTION INSURANCE: Landlord may, in Landlord's sole discretion, maintain a policy of business interruption insurance, the cost of which shall be part of common area operating costs. Tenant shall, during the entire term hereof, keep in full force and effect a policy of business interruption insurance naming Landlord as the insured in an amount reasonably satisfactory to Landlord, which amount shall be Landlord's estimate of the Minimum Rent, Percentage Rent and Additional Rent to be paid by Tenant to Landlord hereunder for a period of twelve (12) months unless Landlord notifies Tenant in writing that Tenant does not have to obtain such coverage. 7.6 INDEMNIFICATION OF LANDLORD; Tenant will protect, indemnify, defend and save harmless Landlord, its agents and servants, from and against any and all claims, actions, damages, suits, judgements, decrees, orders, liability and expense (including all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding, and attorney fees) in connection with loss of life, bodily injury, personal injury and/or damage to property of whatever kind or character, howsoever caused, arising from or out of any occurrence in, upon or about the Demised Premises, or in the occupancy or use by Tenant of the Demised Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, licensees, employees, servants, sublessees, or concessionaires, unless caused by negligence on the part of Landlord, its representatives or employees. 7.7 PLATE GLASS: Tenant shall replace at its own expense any and all plate and other glass in and about the Demised Premises damaged or broken from any cause whatsoever. 7.8 LANDLORD'S MORTGAGEE: Wherever herein Tenant is required to add Landlord as an insured to any policy of insurance, to insure Landlord, or to provide a certificate or other proof of insurance or a notice to Landlord, Tenant must treat any mortgagee of Landlord that Landlord has notified Tenant of in a like manner. -18- ARTICLE VIII: SUBORDINATION NOTICE ESTOPPEL AND ATTORNNENT 8.1 SUBORDINATION: Landlord shall have the right to transfer, mortgage, assign,. pledge, sell and leaseback, convey or otherwise encumber in whole or in part, the Demised Premises, the Shopping Center, this Lease and all rights of Landlord existing and to exist, and rents and amounts payable to it under the provisions hereof; and nothing herein contained shall limit or restrict any such right, and the rights of the Tenant under this Lease shall be subject and subordinate to all instruments executed and to be executed in connection with the exercise of any such right of the Landlord, including, but not limited to, any REA affecting the Demised Premises and the Shopping Center and the lien of any mortgage, deed of trust or security agreement now or hereafter placed upon the Demised Premises and the Shopping Center and to all renewals, modifications, consolidations, participants, replace- ments and extensions thereof. Said subordination shall not require the agreement or consent of Tenant, but Tenant covenants and agrees, if requested, to execute and deliver upon demand such further instruments subordinating this Lease to the lien of any such mortgage, deed of trust, security agreement or sale and leaseback as shall be requested by the Landlord and/or any mortgagee, proposed mortgagee, holder of any security agreement, or purchaser or such other party. If Tenant fails to execute and deliver any such instruments within fifteen (15) days after receipt, then, Tenant hereby irrevocably appoints the Landlord as its attorney-in-fact to execute and deliver any such instrument for and in the name of the Tenant. Notwithstanding anything set out in this Lease to the contrary, in the event the holder of any mortgage or deed of trust elects to have this Lease superior to its mortgage or deed of trust, then, upon Tenant being notified to that effect by such encumbrance holder, this Lease shall be deemed prior to the lien of said mortgage or deed of trust, whether this Lease is adopted prior to or subsequent to the date of said mortgage or deed of trust. 8.2 NOTICE TO LANDLORD: The Landlord shall in no event be in default in the performance of any of the Landlord's obligations hereunder unless and until the Landlord shall have failed to perform such obligations within thirty (30) days, or such additional time as is reasonably required to correct any such default, after notice by the Tenant to the Landlord properly specifying wherein the Landlord has failed to perform such obligation. Further, if the holder of a mortgage which includes the Demised Premises notifies the Tenant that such holder has taken over the Landlord's rights under this Lease, the Tenant shall not assert any right to deduct the cost of repairs or any monetary claim against the Landlord from rent thereafter due and payable, but shall look solely to the Landlord for satisfaction of such -19- claim. Nothing herein contained shall be deemed to create any rights in Tenant not specifically granted in this Lease or under applicable provisions of law. 8.3 ESTOPPEL CERTIFICATE: Tenant agrees, at any time, and from time to time, upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a state- ment in writing addressed to Landlord or other party designated by Landlord certifying that this Lease is in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications) ; stating the actual commencement and expiration dates of the Lease; stating the dates to which rent, and other charges, if any, have been paid, stating the history of the Percentage Rent which has become due over the term of the Lease, if any; that the Demised Premises have been completed on or before the date of such cert- ificate and that all conditions precedent to the Lease taking effect have been carried out or fulfilled; that Tenant has accepted possession; that the lease term has commenced; Tenant is occupying the Demised Premises and is open for business; and stating whether or not there exists any default by either party in the performance of any covenant, agreement, term, provision or condition contained in this Lease, and, if so, specifying each such default of which the signer may have knowledge and the claims or offsets, if any, claimed by the Tenant; it being intended that any such statement delivered pursuant hereto may be relied upon by Landlord or a purchaser of Landlord's interest and by any mortgagee or prospect- ive mortgagee of any mortgage affecting the Demised Premises or the Shopping Center. If Tenant does not deliver such statement to Land- lord within such ten (10) day period, Landlord, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following facts: (i) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (ii) that this Lease has not been cancelled or terminated except as otherwise represented by Landlord; (iii) that not more than one month's Minimum Rent or other charges have been paid in advance; and (iv) that Landlord is not then in default under this Lease. In such event, Tenant shall be estopped from denying the truth of such facts. Tenant shall also, on ten (10) days written notice, provide an agreement in favor of and in the form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give prompt written notice to any such encumbrance holder in the event of any casualty damage to the Demised Premises or in the event of any default on the part of Landlord under this Lease, and will agree to allow such encu]nbrance holder a reasonable length of time after notice to cure or cause the curing of such default before exercising Tenant's right of self-help under this Lease, if any, or terminating or declaring a default under this Lease. -20- 1 8.4 ATTORNMENT: At the option of the holder of any mortgage affecting the Demised Premises, Tenant agrees that no foreclosure of a mortgage affecting the Demised Premises, nor the institution of any suit, action, summary or other proceeding against the Landlord herein, or any successor Landlord, or any foreclosure proceeding brought by the holder of any such mortgage to recover possession of such property, shall by operation of law or otherwise result in cancellation or termination of this Lease or the obligations of the Tenant hereunder, and upon the request of the holder of any such mortgage, Tenant covenants and agrees to execute an instrument in writing satisfactory to such party or parties or to the purchaser of the mortgaged premises in foreclosure whereby Tenant attorns to such successor in interest. 8.5 ASSIGNMENT OF RENTS: With-reference to any assignment by the Landlord of the Landlord's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of any mortgage on the Demised Premises, the Tenant agrees: (A) that the execution thereof by the Landlord, and the acceptance thereof by such holder, shall never be deemed an assumption by such holder of any of the obligations of the Landlord hereunder, unless such holder shall, by written notice sent to the Tenant, specifically other- wise elect; and (B) that, except as aforesaid, such holder shall be treated as having assumed the Landlord's obligations hereunder only upon foreclosure of such holder's mortgage and the taking of possession of the Demised Premises by such holder. ARTICLE IS: ASSIGNMENT AND SUBLETTING 9.1 CONSENT REOUIRED: Tenant shall not voluntarily or involun- tarily assign this Lease in whole or part, nor sublet (which term, without limitation, shall include the granting of concessions, licenses, and the like) all or any part of the Demised Premises without following the procedures detailed herein and obtaining the prior express consent of Landlord in each instance, which consent may be granted or withheld in Landlord's sole discretion. In the event the Tenant seeks the Landlord's consent pursuant to this Section 9.1, the Tenant shall furnish such information regarding the prospective assignee or sublessee as the Landlord may.,zequire, including without limitation information regarding financial ability and business experience relating to the uses permitted hereunder. The consent by Landlord to any assignment or subletting shall not constitute a waiver of the necessity for such consent in any subsequent assignment or subletting. The foregoing shall be construed to include a prohibition against any voluntary or involuntary assignment or subletting arising by operation of law. For the purposes of this Lease, the entering into of any management agreement or any agreement in the nature thereof transferring control of any substantial percentage of the profits and losses -21- 1 from the business operations of the Tenant in the Demised Premises s to a person or entity other than the Tenant, or otherwise having an as 9 ubstantially the same effect, shall be treated for all purposes as of this gSection 9 its Lease and shall be governed by the provisions 1 ? In the event that Tenant a bona rec from a third party for the subl asee ore ass g mentdof thetDemisedr Premises, Tenant shall forthwith notify Landlord in wiitin attaching a copy assign this Lease f upon offer, of Tenants desire to sublet or shall have thirty (30) pon terms of said offer, whereupon Landlord sublease, or at Landlord's days sole option or careject ncel anddt rminatenthis assinm or Lease, except for assignees set forth below, in which case Landlord may elect to enter into a direct lease with the proposed assignee or subtenant. The failure of Landlord to either accept or reject said assignment or sublease within the said thirty (30) days period shall be deemed a rejection of said assignment or sublease. If Tenant shall purport to assign this Lease, or sublet all or any portion of the Demised Premises, or permit any person or persons other than Tenant to occupy the Demised Premises, Landlord may collect rent from the person or persons then or thereafter occupying the Demised Premises and apply the net amount collected to the rent reserved herein, but no such collection shall be deemed sucwaiver of this Article IX Purported assi or the acceptance as tenant of any Tenant from the further' subtenant or occupant, or a release of part of Tenant herein containedance by Tenant of covenants on the Notwithstanding any assignment or sublease, Tenant shall remain fully liable for the obligations of the Tenant hereunder, including, without limitation the amounts provided for underh sl g ase ation and s all not be and the rents j released from performing any hereof. If Tenant an of the terms, covenants or conditions transfer, pled 1s gdP out or partnership, any sale, twenty-five gel leveraged buy buy out or other disposition of percent (25g) or more of the corporate stock or the stock of any corporate guarantor of the Tenant specified in Section 1.1 (N) hereof, or the stock of the parent corporation of the Tenant, or twenty-five percent (25%) or more of partnership ownership (or any general partner interest in the case of a limited partnership) (whether such sales, transfer or other dispositions occur at one time or at intervals so that in the aggregate, over the term of this Lease, such transfers of stock or partnership interests shall have occurred), or any reorganization or restructuring which results in the net worth of Tenant decreasing by more than ten percent (10%), shall be deemed to be an assignment. Notwithstanding anything contained herein to the contrary, the Tenant may assign this Lease without the Landlord's consent to any entity fifty percent (50%) or more owned or controlled by the Tenant or Richard Wilson or Mark Wilson or to the -22- Tenant's franchisor, Little Caesar Enterprises, Inc. (11LCE11) or to any approved franchisee of LCE. Notwithstanding such assignment, the Tenant and any guarantor hereunder shall remain fully liable for all terms and conditions of this Lease. Landlord shall be entitled to, and Tenant shall remit to Landlord, any profit or consideration which may inure to Tenant as a result of any assignment or subletting. If Tenant assigns or sublets the Demised Premises, the Minimum Rent shall thereafter be adjusted for the balance of the term of this Lease such that the Minimum Rent payable hereunder shall thereafter be equal to the sum of (i) the greater of (a) the annual Minimum Rent specified in Section 1.1 (G) or 1.1 (J) (whichever is applicable) of this Lease or (b) the annual Minimum Rent payable pursuant to such assignment or sublease, plus (ii) the highest of the amounts of the annual Percentage Rent payable hereunder for and with respect to any of the then last three (3) full lease years preceding the assignment or subletting. At Landlord's request, Tenant shall assign to Landlord the right to collect rent (including any Additional Rent) from any subtenant of Tenant and to apply such proceeds to Tenant's obligations under this Lease. Landlord shall have the right to sell, convey, transfer or assign all or part of its interest in the real property and the buildings of which the Demised Premises are a part or its interest in this Lease. All covenants and obligations of Landlord under this Lease shall cease upon the execution of such conveyance, transfer or assignment, but such covenants and-- obligations shall run with the land and shall be binding upon the subsequent owner or owners thereof or of this Lease. ARTICLE B: WASTE. GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES 10.1 WASTE DR NUISANCE: Tenant shall not commit or suffer to be committed any waste upon the Demised Premises or any nuisance, offensive odor or loud noise (including but without limitation, the use of loudspeakers) or other act or thing which may disturb the quiet enjoyment of any other tenant in the building in which the Demised Premises may be located or in the Shopping Center, or which may disturb the quiet enjoyment of occupants of adjoining proper- ties. 10.2 INSURANCE REQUIREMENTS: Tenant shall, at its sole cost and expense, comply with all of the requirements of any insurance carrier for the Shopping Center, now in force or which may hereafter become applicable. 10.3 RAZARDOUS SUBSTANCES: Tenant covenants and warrants that Tenant, Tenant's Work, as set forth in Exhibit F attached hereto and made a part hereof, and any alterations thereto and Tenant's use of Demised Premises and performance of its obligations -23- hereunder will at all times comply with and conform to all present and future laws, statutes, ordinances, rules and regulations of any federal, state or local governmental, quasi-governmental or regulatory authorities (the "Laws"), including, but not limited to, environmental laws, rules and regulations which relate to transportation, storage, placement, handling, treatment, discharge, generation, production or disposal (collectively "Treatment") of any liquid, solid or gaseous waste, petroleum product, waste products, radioactive waste, poly-chlorinated biphenyls, asbestos, hazardous materials of any kind, and any substance which is or becomes regulated by any Law, statute, ordinance, rule or regulation (collectively "Waste"). Tenant further covenants and warrants that it will not engage in or permit any person or entity to engage in any Treatment of any Waste on or which affects the Demised Premises. Immediately upon receipt of any Notice (a5 hereinafter defined) from any person or entity, Tenant shall deliver to Landlord a true, correct and complete copy of any written Notice. "Notice" shall mean any note, notice, or report of any suit, proceeding, investigation, order, consent order, injunction, writ, award, or action related to or affecting or indicating the Treatment of any Waste in or affecting the Demised Premises. Tenant hereby agrees, in addition to and not in lieu of any other indemnities contained in this Lease or otherwise provided by law, that it will indemnify, defend, save and hold harmless the Landlord and Landlord's officers, directors, shareholders, employees, agents, partners, and their respective heirs, successors and assigns (collectively "Indemnified Parties") against and from, and to reimburse the Indemnified Parties with respect to, any- and all damages, claims, judgments, penalties, fines, liabilities, loss, costs and expense (including, without limitation, all attorney's fees and expenses, court costs, administrative costs, costs of appeals, consultant's and expert's fees and expenses, damages arising from any adverse impact on marketing of space or diminution in value of the Demised Premises or the Shopping center and damages for the loss or restriction of use of rentable or usable space or of any amenity at the Demised Premises or the "Shopping Center), incurred by or asserted against the Indemnified Parties by reason of or arising out of; (a) the breach of any representation or undertaking of Tenant under this Section 10.3 or (b) arising out of the Treatment of any Waste by Tenant or any licensee, concessionaire, manager or other party occupying or using the Demised Premises, or in or affecting the Demised Premises. This indemnification of Landlord by Tenant_ also includes, but is not limited to, costs incurred in connection with any investigation by Landlord of site conditions from time to time or of any cleanup, remedial, removal, or restoration work required by any federal, state or local government agency or political subdivision because of any release of Waste or breach of this Section 10.3. -24- Landlord represents that Landlord, and, to the best of Landlord's knowledge, its employees and agents have not used any hazardous materials on the Demised Premises in any manner which violates any regulation governing hazardous materials. Landlord also represents that neither Landlord nor, to the best of Landlord's knowledge, Landlord's employees or agents, have ever received any notice of violations (and it is not aware of any existing violations) of any regulations governing hazardous materials and, to the best of Landlord's knowledge, there have been no actions commenced or threatened by any party for such non- compliance which affects the Premises. Landlord shall conduct and complete all investigations, studies, sampling and testing, and all removal and other actions necessary to cleanup and remove all hazardous materials on, under, from or affecting the Premises if required by and in accordance with all applicable orders and authorities ("Remediation"). However, if such Remediation is necessary as a result of Tenant's actions or negligence or otherwise result from Tenant's use of the Demised Premises then the provisions of Section 10.3 hereof shall apply. Landlord is given the right, but not the obligation, to inspect and monitor the Demised Premises and Tenant's use of the Demised Premises in order to confirm Tenant's compliance with the terms and the representations set forth in this Section 10.3. Landlord may require that Tenant deliver to Landlord concurrent with Tenant's vacating the Demised Premises at Tenant's expense, a certified statement by licensed engineers, in form and substance satisfactory to Landlord, stating that Tenant, Tenant's Work and any alterations thereto and Tenant's use of the Demised Premises complied and conformed to all Laws which relate to the Treatment of any Waste in or affecting the Demised Premises. The Tenant agrees to deliver upon request from Landlord estoppel certificates to Landlord expressly stipulating whether Tenant is engaged in or has engaged in the Treatment of any Waste in or affecting the Demised Premises, and whether the Tenant has caused any spill, contamination, discharge, leakage, release or escape of any Waste in or affecting the Demised Premises, whether sudden or gradual, accidental or anticipated, or of any other nature, at or affecting the Demised Premises and whether, to the best of Tenant's knowledge, such an occurrence has otherwise occurred at or affected the Demised Premises. 10.4 GOVERNMENT PERMITS: Tenant shall, in performing its ob- ligations hereunder and at its own expense, comply with all ap- plicable present and future laws, ordinances, rules, and regul- ations of all federal, state and local authorities from time to time applicable to the Demised Premises and the business conducted therein by Tenant, including, without limitation, obtaining and maintaining any and all permits, licenses, certificates or other -25- authorizations now or hereafter necessary, lawful and proper in order to permit Tenant to use the Demised Premises for the purposes set forth in Section 1.1 (M). Copies of all such permits, licenses, certificates and authorizations shall be delivered to Landlord on a timely basis. 10.5 SURVIVAL: All of the terms, covenants, warranties and in- demnifications contained in this Section shall survive the term- ination of this Lease. ARTICLE XI: ADVERTISING AND PROMOTIONAL PROGRAM 11.1 ADVERTISING AND PROMOTIONAL PROGRAM: The Landlord may establish an Advertising and Promotional Program (hereafter 1 referred to as the "Program") to furnish and maintain advertising and sales promotions which will benefit the Shopping Center. The promotions director staff and any consultants hired by Landlord to direct and perform the activities of the Program shall be under the direction and supervision of Landlord. A representative of each business occupying the Shopping Center will review the advertising and other promotional activities provided by the Program. All monies received under this Section shall be used solely for advertising, public relations, promotional services and administ- rative expenses relating to the promotion of the Shopping Center. During each lease year, Tenant shall pay to Landlord in monthly installments in advance, its share of the cost of the Program, an amount herein called the "Promotional Charge", based on total square footage of the Demised Premises. The Promotional Charge for the first lease year is estimated to be $0.50 per square foot, and the monthly installment to be paid by Tenant will be as indicated in Section 1.1 (H)(ii). For any fraction of a month at the commencement or expiration of the term, the monthly payment of the Tenant's Promotional Charge shall be prorated. The Tenant agrees, upon request from the Landlord, to furnish suitable advertising material for such purposes. Any advertisements, circulars or other promotions need not make specific reference to any one or more occupants of the Shopping Center, but may advertise the Shopping Center generally or specific portions therein or occupants of such portions. It is understood and agreed that if the Landlord shall elect, the Landlord may replace the Program with an association (the "Association") in order to carry out the activities formerly carried out by the Program. Upon the creation of such Association, the Tenant shall immediately join such Association and maintain membership therein. In addition thereto, the Tenant shall pay to the Association a sum.-equal to that which the Tenant would have paid to the Landlord for the Tenant's Promotional Charge if the Program had remained in existence. If the Landlord shall create such Association to replace the Program or if the Program shall be an independent entity, it is understood and agreed that, if the Tenant shall fail to pay the dues and assessments to the Association or if the Tenant shall fail to pay the Promotional Charge to such an independent -26- Program, as above provided, the Landlord shall have the same rights granted to the Landlord under this Lease for the non-payment of rent or other charges, even though such dues or assessments may be payable to such Association or the Tenant's Promotional Charge may be payable to another entity. Although neither a Program nor an Association is currently planned, Landlord, at a future date reserves the right, but undertakes no obligation, to establish such a Program or Association should Tenant's sales or Shopping Center business require such a promotional fund. ARTICLE %II: DESTRUCTION 12.1 TOTAL OR PARTIAL DESTRIICTION: If the Demised Premises shall be partially or totally destroyed by fire or other casualty insurable under full standard fire and extended risk insurance, so as to become partially or totally untenantable, the same (unless Landlord shall elect not to rebuild as hereinafter provided) shall be repaired and restored by and at the cost of Landlord, to 'the extent originally constructed by Landlord (consistent, however, with zoning laws and building codes then in existence), and to substantially the condition in which such portion of the Demised Premises was in at the time of such damage within one hundred and twenty (120) days of receipt of all insurance proceeds. If and only if the Demised Premises shall be rendered untenantable, Tenant's rent shall abate until thirty (30) days after Landlord has completed its work and delivered possession of the Demised Premises. If (i) more than one-third (1/3) of the building in which the Demised Premises are located shall be substantially destroyed or damaged (as that term is hereinafter defined) by fire or other casualty (whether or not the Demised Premises are damaged or destroyed), or (ii) any lender of Landlord does not permit use of insurance proceeds to repair and restore the building, or (iii) the unexpired portion of the term of this Lease shall be eighteen months (18) or less at the date of the damage, then Landlord may elect not to repair or rebuild the Demised Premises, or so much thereof as was originally constructed by Landlord, by giving written notice within sixty (60) days after such occurrence of its election to terminate this Lease; otherwise, Landlord shall proceed with such recon-struction with reasonable speed after such occurrence (but the Landlord shall not be responsible for any delay which may result from any cause beyond the Landlord's reasonable control), and this Lease shall remain in full force and effect. Notwithstanding anything to the contrary contained herein, Landlord shall not be obligated to commence reconstruction or repairs until Landlord has received the proceeds of any applicable insurance claim and Landlord's obligation to restore and repair is limited to the proceeds of such insurance. -27- In the event that Landlord shall exercise the right given heretofore to terminate, then this Lease and the terms hereof shall cease as of the date of such damage or destruction, and all rent or other charges payable by Tenant shall be prorated to the date of such damage or destruction. In the event that this Lease is not canceled, then Minimum Rent only shall be abated or reduced proportionately during the period in which the Demised Premises are rendered wholly or partially untenantable to the extent such damage or destruction shall interfere with the operation of Tenant's business in the Demised Premises and to the extent that Landlord is paid the equivalent of such Minimum Rent by rent loss insurance proceeds. Such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with Landlord's substantial completion of such work or repair or restoration as Landlord is obligated or elects to do, as the case may be, and as provided in this Article XII. Nothing in this Section shall be construed to abate or reduce Percentage or Additional Rent. 12.2 PARTIAL DESTRUCTION OF SHOPPING CENTER: In the event that 50$ or more of the Shopping Center shall be substantially damaged or destroyed by fire or other cause, notwithstanding that the Demised Premises may be unaffected by such fire or other cause, Landlord shall have the right, to be exercised by notice in writing delivered to Tenant within sixty (60) days after said occurrence, to cancel and terminate this Lease. Upon the giving of such notice to Tenant, the term of this Lease shall expire by lapse of time 30 days after such notice is given, and Tenant shall vacate the Demised Premises and surrender the same to Landlord pursuant to the terms of this Lease. 12.3 TENANT'S RESTORATION: Unless this Lease is terminated as provided in Section 12.1 or Section 12.2 of this ARTICLE XII, if the Demised Premises shall be damaged or destroyed by fire or other casualty, then the Tenant shall: (i) repair and restore all portions of the Demised Premises not required to be restored by the Landlord pursuant to this ARTICLE XII to substantially the condition which such portions of the Demised Premises were in at the time of such casualty; (ii) equip the Demised Premises with t the* rade fixtures and all personal property necessary or proper for business rinlthe Demised Premises as business; sther after as pos ible. 12.4 SIIHSTANTIAL DAMAGE: The term "substantially damaged or destroyed", as used in this ARTICLE XII, shall have reference to damage of such a character as cannot reasonably be expected to be repaired, or the premises restored, within sixty (60) days from the time that such repair or restoration work would be commenced. -28- ARTICLE %III: EMINENT DOMAIN 13.1 CONDEMNATION: In the event of any condemnation or conveyance in lieu thereof of the Demised Premises or the Shopping Center, or both, whether whole or partial, Landlord may terminate this Lease, and in any event, Tenant shall have no claim against Landlord or the condemning authority for the value of the unexpired term, and Tenant shall not be entitled to any part of the compensation or award, whether paid as compensation for diminution in value to the leasehold or to the fee of the Demised Premises, and Landlord shall receive the full amount thereof, Tenant hereby waiving any right to any part thereof and assigning to Landlord its interest therein, provided, however, to the extent the amount recoverable by Landlord, as hereinabove set forth, is not diminished thereby, Tenant shall have the right to claim and recover from the condemning authority (but not from Landlord) such compensation as may be separately awarded to Tenant in Tenant's own name and right on account of all damage to Tenant's business by reason of the condemnation, any cost which Tenant may incur in removing Tenant's property from the Demised Premises and any costs of relocating Tenant's business. Further, Tenant's rights to recover under this paragraph shall be subordinate to the rights of Landlord's first mortgagee. 13.2 RESTORATION OF DEMISED PREMISES: In the event that any part of the Demised Premises shall be taken or condemned, and should this Lease not be terminated in accordance with the foregoing provision, the Landlord will, within a reasonable time after such taking or condemnation, restore the Demised Premises to an architectural unit as nearly like its condition prior to such taking as shall be practicable. The Minimum Rent or a fair and just proportion* thereof, according to the nature and extent of the damage sustained, shall be suspended or abated until such restoration is substantially complete. ARTICLE BIV: DEFAULT OF TENANT 14.1 DEFAULT: Any one or more of the following shall constitute an "Event of Default" under this Lease: (A) failure of Tenant to make, within five (5) days after the date Tenant receives written notice of such failure to make payment, any payment of Minimum Rent, Percentage Rent, Additional Rent or other monetary amount payable by Tenant hereunder or to timely discharge any other monetary obligation (it being understood that Tenant's obligation to pay any rental herein is an independent covenant and that Tenant will pay such rental without offset or deduction); (S) Tenant's failure to perform any other of the terms, conditions or covenants of this Lease to be observed or performed by Tenant, which failure continues for ten (10) business days after written notice thereof, provided, however that such right to -29- written notice shall be limited to one (1) time during each calendar year of the term of this Lease. However, if such term or condition is (a) non-monetary and (b) is of such a nature that it cannot reasonably cured within ten (10) business days, and (c) Tenant is making good faith efforts to cure said default, then Tenant's obligation shall be extended to thirty (30) days; (C) if Tenant shall become bankrupt or insolvent, or file or have filed against it any bankruptcy proceedings, or take or have taken against it in any court pursuant to any statute, either of the United States or of any state, a petition of bankruptcy or insolvency, or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into such an arrangement; (D) if Tenant fails, after the term of this Lease commences, to be open for business to the public for more than one day when required by this Lease to be so open in any one lease year, or for more than an aggregate of any three (3) such days during the term hereof, or if the Tenant shall otherwise abandon or vacate the Demised Premises, or suffer this Lease to be taken under any writ of execution; minimum Rent, if Tenant Percentage Rent, Additional tRentlm or yo her charge payable by Tenant hereunder or to timely discharge any other monetary obligation three times in any twelve month period, notwithstanding the fact that any such default shall have been cured; (F) the falsification by Tenant or any agent of Tenant of any report or statement required to be furnished to Landlord pursuant to the terms of this Lease; the falsification of any such document shall be deemed an incurable, material breach of this Lease and, at Landlord's option, constitute an immediate termination of Tenant's right to possession of the Demised Premises; or The notice and grace period provisions in subparagraphs (A) and* (B) above shall have no application to the defaults referred to in subparagraphs (C), (D), (E), and (F) above. If any Event of Default occurs, the Landlord, besides all- such 'Other rights or remedies it may have under this Lease or in law or in equity, shall have the right, without demand or notice (and Tenant hereby expressly waives any notice to quit possession of the Demised Premises) to enter the Demised Premises and take possession thereof and of all permanent improvements thereon and may remove all persons and property from the Demised Premises by force, summary action, or otherwise, and such property may be removed and stored in a public warehouse or elsewhere at the cost of. and for the account of Tenant, all without service of notice or resort to legal process, and without being deemed guilty of trespass or becoming liable for any loss or damage which may be -30- occasioned thereby and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Tenant agrees that Tenant shall have no further claim under this Lease-and shall quit and deliver up the possession of the Demised Premises, including permanent improvements to the Demised Premises, when this Lease terminates by limitation or in any other manner provided for herein. 14.2 REMEDIES: If an Event of Default occurs, the Landlord may elect to re-enter or take possession as provided for herein, and it may either terminate this Lease, or it may from time to time without terminating this Lease make such alterations and repairs as may be necessary in order to relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable. Any reletting shall be done in such a manner as Landlord may deem proper. It is specifically understood and agreed that although Landlord may be required by law to mitigate Tenant's damages, Landlord shall only make commercially reasonable efforts to do so and shall be entitled to rent or re- rent any other space within the Shopping Center prior to re-letting the Demised Premises and take into account in connection with any reletting of the Demised Premises all relevant factors which would be taken into account by a sophisticated developer in securing a replacement tenant for the Demised Premises, such as, but not limited to, the type of shopping center then being operated on the Shopping Center, matters of tenant mix, the type of operation proposed to be conducted by any such replacement tenant, and the financial responsibility of any such replacement tenant. Further, at no time shall Landlord's decision to lease or let other available space in the Shopping Center be deemed to be a failure to mitigate said damages. Upon each such reletting all rentals received by Landlord shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second to the payment of any costs and expenses of such reletting including brokerage fees and attorneys' fees, costs of collecting the rent in connection with such relet, and the costs of any necessary or desirable alterations and repairs; third to the payment of the most overdue rent owed at that time; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder from Tenant. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall be liable for the payment .,.of, such deficiency to Landlord. Such deficiency shall be calculated and become payable monthly in the same manner as Minimum Rent, as specified in section 2.1 hereof. No such re-entry or the taking of possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease or to accept a surrender thereof unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting without -31- termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any Event of Default, in addition to any other remedies it. may have, it may recover from Tenant all damages it may occur by reason of such breach, including the cost of recovering the Demised Premises, and the amount of rent and charges eouivalent to rent reserved in this Lease for the remainder of the stated term, and all actual and reasonable attorney's fees. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the Minimum Rent set forth in Section 1.1G (or if default occurs during any option period hereto, as set forth in Section 1.1(J)), and the Additional and Percentage Rents specified in Section 14.3. To induce the Landlord to enter into this Lease, (i) the Tenant confirms and agrees that this transaction is a commercial and not a consumer transaction, (ii) the Tenant hereby waives, to the full extent permitted by law, any right to trial by jury in any action, proceeding or counterclaim brought by the Landlord against the Tenant on any matters whatsoever arising out of or in any way connected with this Lease, the relationship of the Landlord and the Tenant, the Tenant's use or occupancy of the Demised Premises, and/or any claim of injury or damage, and (iii) the Tenant agrees not to interpose, to the full extent permitted by law, any counterclaim of whatever nature or description in any proceeding commenced by the Landlord for nonpayment of Minimum Rent, Percentage Rent, Additional Rent or any other amount due hereunder, provided the foregoing shall not be construed as a waiver of the right of the Tenant to assert such claims in any separate action brought by the Tenant. 14.3 ADDST]ONAL AND PERCENTAGE RENT: For the purposes of this ARTICLE XIV, It shall be deemed that Additional Rent, if provision is made in this Lease, for any period after any default and entry by the Landlord would have been at a monthly rate thereafter equal to the average monthly Additional Rent which the Tenant was obligated to pay to the Landlord under tnis Lease either: (i) from the Commencement Date hereof to the date of such default; or (ii) during the last three (3) years prior to the date of such default - whichever is greater. 14.4 GUARANTORS: If this Lease shall be guaranteed on behalf of the Tenant, all of the provisions of this ARTICLE XIV with respect to bankruptcy of the Tenant, etc., shall be deemed to read "the Tenant or the Guarantor hereof." "" 14.5 BANKRUPTCY OR OTHER DEFAULT- Tenant agrees that this Lease is a lease of "real property in a shopping center" and that a debtor in possession and/or trustee in bankruptcy acting pursuant to the provisions of the revised bankruptcy code, may assume this Lease only if, in addition to such other conditions of this Lease -32- and of applicable law, said debtor in possession/trustee shall provide Landlord with such written assurances of future performance as are acceptable to Landlord. Any closing of Tenant's business, change in product or service mix, alteration in the size of the Demised Premises, change in advertising program, change in method of operation or change of Tenant's trade name by said debtor in possession/trustee shall be deemed to be a material disruption in the tenant mix and balance of the Shopping Center. Landlord shall have at all times a valid lien from all rentals and other sums of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises, and such property shall not be removed therefrom without the consent of Landlord until all. arrearages in rent as well as any and all other sums of money then due to Landlord hereunder shall first have been paid and discharged. Upon the occurrence of any Event of Default by Tenant, Landlord may, in addition to any other remedies provided herein or by law or equity, enter upon the Demised Premises and take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises without liability for trespass or conversion, and sell the same with or without notice -at public or private sale, with or without having such property at the sale, at which Landlord or its assigns may purchase, and apply the proceeds thereof less any and all expenses connected with the taking of possession and sale of the property, as a credit against any sums due by Tenant to Landlord. Any surplus shall be paid to Tenant, and Tenant agrees to pay any deficiency forthwith. Alternatively, the lien hereby granted may be foreclosed in the manner and form provided by law for foreclosure of security interest or in any other form provided by law. Any statutory lien for rent is not hereby waived, the express contractual lien herein granted being in addition and supplementary thereto. Tenant will execute upon Landlord's request a financing statement and security agreement evidencing Landlord's security interest in Tenant's personal property and warrants to Landlord that there are no prior liens or security interests on said personal properties. Notwithstanding anything herein contained to the contrary, Tenant may place liens on any furniture, trade fixture, equipment or appliance installed by Tenant. Landlord hereby waives any lien or right in and to such items. Landlord agrees, if required by any lending institution, to execute such additional lien waivers or other documents to evidence its waiver of lien. Any liens permitted hereby shall attach only against the personal property of the Tenant and shall not attach to the real estate or any personal property of the Landlord. Attached hereto as Exhibit "H" is a copy of the Tenant's lender's standard Landlord Waiver and Consent Agreement which the Landlord agrees to complete, execute and return to the Tenant simultaneous with its execution of this Lease. In addition to other remedies available under this Lease, in the event of an occurrence of an Event of Default or, in the event of a threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right -33- of injunction and the right to invoke any remedy allowed by law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, at law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws, including possession pursuant to §504 of the Landlord and Tenant Act of 1951, in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Demised Premises. No receipt of monies by Landlord from or for the account of Tenant, or from anyone in possession or occupancy of the Demised Premises, after the termination of this Lease shall affect any notice given Tenant prior to the receipt of such money, it being agreed that after (i) Landlord has repossessed the Demised Premises, (ii) the service of notice of termination, possessi on cof the mDemis d aPresuit, or (iv) mises, Landlord final ay e rec ive and collect any rent or other amounts due Landlord and such payment shall not in any respect reinstate this Lease and shall not waive, affect or impair said possession, notice, suit or judgement without the express written consent of Landlord. No delay or omission of Landlord to exercise any right or remedy under this Lease, or at law or in equity shall be construed as a waiver of any Event of Default. When, pursuant to the Bankruptcy Code, the Trustee or Tenant and Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Demised Premises or any portion thereof, such charges shall not be less than the Minimum Rent, Percentage Rent, Additional Rent and all other charges accruing hereunder. 14.6 FAILURE TO PAY INTEREST: If at any time Tenant shall fail to pay any taxes, assessments, or liens, provide insurance or perform any act required by this Lease to be made or performed by it, or fail to pay any charge payable by Tenant or to timely discharge any other monetary obligation of Tenant required by this Lease, Landlord, without waiving or releasing Tenant from any obligation or default under this Lease, may upon five (5) days notice (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of Tenant. Tenant shall pay to Landlord a "late charge" of five cents ($.05) for each dollar paid or each dollar of expense so incurred by Landlord and all sums payable by Tenant to Landlord under this Lease. All sums so paid by Landlord, all costs and expenses so incurred and all sums payable by Tenant to Landlord under this Lease shall accrue interest at a rate equal to the lesser of one and one-half (1.5$) per month or the maximum rate permitted by law, from the date of payment or incurring thereof by Landlord and shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord upon demand. -34- ARTICLE XV: ACCESS BY LANDLORD Ss.I RIGHT OF ENTRY: Landlord or Landlord's agents shall have the right to enter the Demised Premises at all times as may be required by an emergency situation and at all reasonable times to examine the same and to show it to prospective purchasers or lenders and to make such inspections, repairs, alterations, improvements or additions as Landlord may deem necessary or desirable, and Landlord shall be allowed to take all material into and upon said Demised Premises that may be required therefor without the same constituting an eviction of Tenant in whole or part. Landlord shall not unreasonably interfere with Tenant's normal business operations. If repairs are required to be made by the Tenant pursuant to the terms hereof or if the Tenant is required to perform any other obligation under this Lease, the Landlord may demand that the Tenant make such repairs or perform such obligation forthwith, and if the Tenant refuses or neglects to commence such repairs or performance and complete the same with reasonable dispatch, after such demand, the Landlord may (but shall not be required so to) make or cause such repairs or performance to be done and shall not be responsible to the Tenant for any loss or damage that may accrue to its stock or business by reason thereof. If the Landlord makes or causes such repairs or performance to be done, or endeavors so to do, the Tenant agrees that it will forthwith, on demand, pay to the Landlord the cost thus incurred as Additional Rent, and if it shall default in such payment, the Landlord shall have the remedies provided in ARTICLE XIV hereof. During the six (6) months prior to the expiration of the term of this Lease or any renewal term, Landlord may exhibit the Demised Premises to prospective tenants or purchasers and place upon the Demised Premises the usual signage for space rental. Nothing herein contained, however, shall be deemed or con- strued to impose upon Landlord any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the building or any part thereof, except as otherwise herein specifically provided. ARTICLE XVI: TENANT'S PROPERTY 16.1 TAXES ON LEASEHOLD: Tenant shall be responsible for, and shall pay before delinquency, all municipal, county, or state taxes assessed during the term of this Lease against any leasehold in- terest or personal property of any kind owned by or placed in, upon, or about the Demised Premises by Tenant, and the Tenant shall pay all license fees and other charges which may lawfully be imposed upon the business of the Tenant. -35- .I0-06-52 16.51 FROM. SHERATON INTL 6VI IU. 910 Ubw Wb" rr.oc 16.2 Loss UM DAKAGM: The Tenant agrees to use and occupy the Demised Premises and to use such other portions of the shopping canter as it is herein given the right to use at its own risk; and that the Landlord shall have no responsibility or liability for any 106s of or damage to the Tenant"s leasehold improvements or to fixtures or other personal property of the Tenant or those claiming by, through or under the Tenant. The provisions of this Section shall apply during the whole of the term hereof, and any earlier -period that Tenant may enter the Demised Premises after receiving written permission therefor from Landlord. The Tansnt agrees that the landlord shall not be responsible or liable to the Tenant, or to those claiming by, through or under the Tenant, for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connecting with the Demised Premises or any of the buildings on the Shopping Center, or otherwise, or for any less or damage resulting to the Tenant to those claiming by, through or under the Tenant, or its or their property, from the bursting, stopping o leaking i1waiter, gas, sprinkler, sewer or steam pipes. "t}y 16.3 NOT es BY TENANT: Tenant shall give i:mediate =ties t0 Landlord in case of fire or accidents, or damage to or of defects in the ed Premises or in the building of which the Demised Preen • /s a part. "TZCS,s 7R+z=s soma a OVER. SIICesssoa& 17. Any holding over by the Tenant after the E expira ion of the term of this Lease shall be treated as a tenancy at suffer a times the Minimum Rent payable immediately Otj a ore said exp r ticn of the Lease (and if varying rates are WALF specified herein, at one and one•ha1! (1 1/2) times the highest such rate) plus the Percentage and Additional Rent and other charges specified herein, prorated on a daily basis, and shall otherwise be on the terms and conditions set forth in this Lease, so far as applicable. 17.2 sDCCESSARS AND A88 GNa: Except as otherwise herein expressly provided, this Lease and all the covenants, terms, provisions and conditions herein contained shall inure to the benefit of and be binding upon the heirs, representatives, successors and assigns of each party hereto, and all covenants herein contained shall run with the land and bind any and all successors in title to Landlord. The reference contained herein to successors and assigns of the Tenant is not intended to constitute a consent to assignment by the Tenant, but has reference only to -36- those instances in which the Landlord may later give consent to a particular assignment as required by the provisions of ARTICLE IX hereof. ARTICLE SVIII: QUIET ENJOYMENT 18.1 LANDLORD'S COVENANT: The Tenant, subject to the terms and provisions of this Lease, on payment of the rent and observing, keeping and performing all of the terms and provisions of this Lease on its part to be observed, kept and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Demised Premises during the term hereof without hindrance or ejection by any persons lawfully claiming under the Landlord; but it is understood and agreed that this covenant and any and all other covenants of the Landlord contained in this Lease shall be binding upon the Landlord and the Landlord's successors only with respect to breaches occurring during the Landlord's and the Landlord's successors' respective ownership of the Landlord's interest hereunder. It is further understood and agreed that the Landlord shall in no event be liable for failure to perform any obligation under this Lease in the event the Landlord is prevented from so performing by strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts, or employees necessary to furnish such services, or because of war or other emergency, or for any cause beyond the Landlord's reasonable control, or for any cause due to any act or neglect of the Tenant or its servants, agents, employees, licensees, or any person claiming by, through or under the Tenant, or any termination for any reason of the Landlord's occupancy of the premises from which any service or work is being supplied by the Landlord, and in no event shall the Landlord ever be liable to the Tenant for any indirect or consequential damages. XIB: MISCELLANEOUS 19.1 WAIVER: The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing. 19.2 ACCORD AND SATISFACTION: No payment by Tenant or receipt by Landlord of a lesser amount than shall be due hereunder ,_shall be deemed to be other than a payment on account nor shall any endorse- ment or statement on any check or any letter accompanying any check or payment as rent be given any effect or be deemed an accord and satisfaction, and Landlord may accept such checks without prejudice to any other rights or remedies which the Landlord may have. -37- 19.3 NO PARTNERSHIP: Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business or otherwise, or joint adventurer or a member of a joint enterprise with Tenant. 19.4 FORCE NA.7EURE: In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then the time allowed for performance of such act shall be extended by a period equivalent to the period of such delay. The provisions of this Section 19.4 shall not operate to excuse Tenant from the prompt payment of Minimum Rent, Percentage Rent, Additional Rent, or any other payments required by the terms of this Lease. 19.5 LANDLORD'S LIABILITY: If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed, Tenant may not terminate the Lease, and Tenant's sole remedies shall be money damages (except as set forth in Section 19.16), and further_ Tenant hereby waives any and all rights or claims to consequential or special damages. If Tenant shall recover a money judgement against Landlord, such judgement shall be satisfied only out of the proceeds of sale received upon execution of such judgement and levy thereon against the right, title and interest of Landlord in the Shopping Center as the same may then be encumbered and neither Landlord nor if Landlord be a partnership, any of the partners comprising such partnership shall be liable for any deficiency. Notwithstanding anything herein contained to the contrary, it is specifically understood and agreed that there shall be no personal liability for any deficiency or otherwise on the part of the Landlord, its agents, representatives, employees, or any of its constituent members, partners or shareholders, or their respective legal representatives, heirs, successors and assigns as the case may be, with respect to any of the terms, provisions, covenants and conditions of this Lease or otherwise, and that Tenant shall look solely to the estate, property and equity of Landlord (or such successor in interest) in the Shopping Center and subject to the prior rights of any mortgagees for the satisfaction of each and every remedy of Tenant in the event of any breach of any-.of the terms, provisions, covenants and conditions of this Lease to be performed by Landlord, or in the event of any other claim which Tenant may allege against Landlord, its agents, representatives, employees, constituent members, partners or shareholders, or their respective legal representatives, heirs, successors and assigns, which exculpation of personal liability shall be absolute and without exception. In the event of the sale or other transfer of -38- Landlord's right, title and interest in the Demised Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 19.6 NOTICES AND PAYMENTS: Any notice by Tenant to Landlord must be served by certified mail, postage prepaid, addressed to Landlord at the place designated for the payment of rent, with copies to: Slater, Sandler & Shulman, P.C., One Hartford Square West, P.O. Box 231336, Hartford, CT, 06106, Attention: James H. Shulman, Esquire, or at such other address or addresses as Landlord may designate from time to time by written notice. Any notice by Landlord (which may be given by Landlord or Landlord's attorney or management company) to Tenant must be served by certified mail, postage prepaid, addressed to Tenant at the Demised Premises, or at such other address or addresses as Tenant may designate from time to time by written notice to Landlord. All notices shall be effective upon delivery or attempted delivery in accordance with this Section 19.6. Until otherwise notified in writing, Tenant shall pay all rent reserved herein and all other sums required under this Lease by check payable to the order of Landlord, and shall forward the same to Landlord as herein provided. 19.7 FINANCIAL STATEMENTS: The persons signing this Lease on behalf of Tenant hereby personally represent and warrant to Landlord that the financial statements delivered to Landlord prior to the execution of this Lease properly reflect the true and correct value of all the assets and liabilities of Tenant and Guarantors. Tenant acknowledges that in entering into this Lease, Landlord is relying upon such statements. 19..8 GUARANTORS: This Lease shall not be effective unless the persons listed in Section 1.1 (N) hereof shall execute the Guaranty attached as Exhibit "G" of this Lease. 19.9 CAPTIONS AND SECTION NUMBERS: The captions, section numbers, article numbers, and headings appearing in this Lease are inserted only as a matter of convenience, and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease. 19.10 DEFINITIONS: The word "Tenant" shall mean each and every person, firm or corporation mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to any one thereof, and it shall have the same force and effect as if given by or to all thereof. If there shall be more than one Tenant, they shall all be bound jointly and severally. -39- 19.11 PARTIAL iNVALiDiTY: If any term, covenant, or condition of Lease or the stance, shall application thereof to any person or circum- to an remainder of this Lease =tent y e invalid or unenforceable, the or condition of this Lease shal 1 be a valid o and enforceablevtoathe fullest extent permitted by law. 19.12 R.EC-LNG: The Tenant agrees not to record the within Lease, but each party hereto agrees, on request of the other, to execute a Notice of Lease in recordable form, complying with applicable Commonwealth of Pennsylvania laws, and reasonably satisfactory to Landlord's attorneys. In no event shall such document set forth the rental or other charges payable by the Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease. 19.13 ENTIRE AGREEMENT: The Lease and the exhibits and riders, if any, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Demised Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as herein set forth. All prior communications, negotia- tions, arrangements, reresons, understandings, whether oral, writtenaor both, between thesparties and hereto, and their representatives, are merged herein and extinguished, this Lease superseding and cancelling the same. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and executed by the party against which such subsequent alteration, amendment, change or modification is to be enforced. If any provision contained in any rider hereto is inconsistent with any printed provisions of this Lease the provision contained in such rider shall supersede said printed provision. Tenant hereby acknowledges that (a) this Lease contains no restrictive covenants or exclusives in favor of Tenant; (b) this Lease shall not be deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the term of this Lease or any part thereof; (c) before entering into this Lease the Tenant has made its own observations, studies, determinations and projections with respect to the Tenant's business in the Demised Premises and all other factors relevant to the Tenant's decision to enter into this Lease, including, without limitation, competition, market size, demographisales volume, profitability and general, so-called "cs" -- both present and prospective; and (d) neither the Tenant nor any representative of the Tenant has relied upon any representation by (or any "conversation" with) the Landlord or any -40- representative of the Landlord with respect to any of said factors, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as a condition of this Lease or as a covenant by Landlord. 19.14 BIIRVIVAL: Notwithstanding anything in this Lease to the contrary, the representations and undertakings of Tenant under this Lease shall survive the expiration or termination of this Lease regardless of the means of such expiration or termination. 19.15 APPLICABLE LAW: This Lease and the rights and obligations of the parties arising hereunder shall be construed exclusively by the provisions hereof and in accordance with the laws of the commonwealth of Pennsylvania. 19.16 CONSENTS AND APPROVALS: Whenever Landlord's consent or approval is required herein, such consent or approval shall not be deemed given until Landlord has provided such consent or approval in writing. Tenant shall pay Landlord's reasonable out-of-pocket costs, including, but not limited to, attorneys' fees incurred in connection with Tenant's request for Landlord's consent or approval. Where the consent or approval of Landlord shall be required, such consent or approval shall be granted in Landlord's sole discretion, unless otherwise expressly provided. With respect to any provision of this Lease which either expressly provides or is held to provide that Landlord shall not unreasonably withhold or unreasonably delay any consent or approval, Tenant shall not be entitled to make claim for, and Tenant expressly waives claim for, damages incurred by Tenant by reason of Landlord's failure to comply, it being understood and agreed that Tenant's sole remedy shall be an action for specific performance. 19.17 AUTHORITY: In the event Tenant and/or the Guarantor of the Tenant's obligations hereunder shall be a corporation, the persons executing this Lease on behalf of Tenant hereby individually covenant and warrant that: Tenant is a duly qualified corporation; all' steps have been taken prior to the date hereof to qualify Tenant to do business in the Commonwealth of Pennsylvania; all franchise and corporate taxes have been paid to date; all future forms, reports, fees and other documents necessary to comply with applicable laws will be filed when due; and those persons executing this Lease on behalf of Tenant are duly qualified and authorized to bind, and in fact do bind, the corporation. The Tenant and/or the Guarantor shall deliver to the Landlord, upon the execution of this Lease, a Clerk's Certificate or Secretary's Certificate in form reasonably satisfactory to the Landlord, confirming that the execution of this Lease and/or the Guarantee, as applicable, has been duly authorized. -41- In the event Tenant hereunder shall be a partnership,, either general or limited, the persons or entities executing this Lease on behalf of Tenant hereby individually covenant and warrant that: Tenant is a duly qualified partnership; all steps have been taken prior to the date hereof to qualify Tenant to do business in the Commonwealth of Pennsylvania, if required by law; all franchise and partnership taxes have been paid to date; all future forms, reports, fees and other documents necessary to comply with applicable law will be filed when due; and those entities executing this Lease on behalf of the partnership are duly qualified to bind, and in fact do bind, the partnership. 19.18 WHEN LEASE BECOMES EFFECTIVE: This Lease shall be effective only when it is signed and delivered by both Landlord and Tenant. The Tenant's submission of a signed lease for review by the Landlord does not give the Tenant any interest, right or option in the Demised Premises. Upon such full execution and delivery, all terms, provisions, covenants and obligations of the parties hereto shall be immediately in full force and effect, and enforceable in accordance with the terms hereof. 19.19 INTERPRETATION: Both parties have read this Lease and had the opportunity to employ legal counsel and negotiate changes to the Lease. The Lease is the joint product of the parties and, in the event of any ambiguity herein, no inference shall be drawn against a party by reason of document preparation. 19.20 BRORSRS: Tenant represents and warrants to Landlord that no broker or agent negotiated or was instrumental in negotiating or consummating this Lease excepting only Realtor, as set forth in Section 1.1 (P). Realtor is representing Landlord on this Lease, and Realtor's commission shall be paid by Landlord. Tenant knows of no other real estate broker or agent who is or might be entitled to a commission or compensation in connection with this Lease. All fees, commissions or other compensation payable to any broker or agent of Tenant shall be paid by Tenant. Tenant shall hold Landlord harmless from all damages and shall indemnify Landlord for all damages paid or incurred by Landlord resulting from any claims asserted against Landlord by brokers or agents claiming through Tenant. Tenant acknowledges that Tenant has been informed that person(s) associated with Realtor may have or may acquire an ownership interest in the Shopping Center, and Tenant acknowledges by signing this Lease that such ownership interest shall not affect the terms, conditions or validity of this Lease. 19.21 LANDLORD'S FEES AND EXPENSES: Unless prohibited by-applic- able law, the Tenant agrees to pay to the Landlord the amount of all legal fees and expenses incurred by the Landlord arising out of or resulting from any act or omission by the Tenant with respect to this Lease or the Demised Premises, including without limitation, any breach by the Tenant of its obligations hereunder. If litigation arises between Tenant and Landlord, the prevailing party shall be entitled to reimbursement of reasonable legal fees by the other party. -42- 19.22 OTHER AGREEMENTS: The Tenant hereby warrants and represents that neither this Lease nor the operation of the Demised Premises hereunder violates the provisions of any instrument heretofore executed by the Tenant or any affiliate of the Tenant, including, without limitation, any so-called radius restriction contained in any such instrument. 19.23 SHIF?LApgE: Notwithstanding the initial location of the Demised Premises as reflected on Exhibit "A" annexed to this Lease, it is expressly understood and agreed that the Landlord shall have the right, at any time prior to the Commencement Date or during the term of this Lease, to shift the location of the Demised Premises within the Shopping Center. In the event that the Landlord shall elect to exercise the foregoing privilege, written notice thereof shall be given to the Tenant, in which case the parties shall execute a supplemental instrument showing such shift in location of the Demised Premises. Tenant shall move to such relocated premises (i) immediately, in the event that Landlord's notice is given prior to the commencement Date; or (ii) as soon as is reasonably possible, and in any event within 90 days of Landlord's notice, in the event Landlord's notice is given after the Commencement Date. Landlord shall reimburse Tenant for all reasonable moving costs incurred by Tenant in relocating as contemplated by this Section 19.23. Additionally, if Tenant has made improvements to the Demised Premises prior to Landlord's notice, Landlord will compensate Tenant for the reasonable value thereof upon presentation of reasonable documentation setting forth such value. If the following conditions do not prevail: A. The parties agree exactly as to where in the Shopping Center the Premises will be located; B. The new premises shall not be smaller than the old premises; C. The rent in the new premises shall be identical to that in the old premises. This will not be computed on a per square foot basis but, rather, shall be computed on a dollar basis; D. ' The Landlord shall pay for all reasonable costs of the relocation; E. The Tenant shall not be shut-down for business for more than five (5) days, then, Tenant shall have the right to terminate this lease within thirty (30) days of notification by Landlord of Landlord's intention to exercise this option hereunder. Thereafter, this Lease will terminate sixty (60) days after notice by Tenant of termination. -43- 19.24 TRADE FIXTURES: Tenant may install and remove at any time under this Lease or at its termination any furniture, trade fixture, equipment or appliance installed by Tenant. Any damage to the Premises resulting from the removal of such items shall be promptly repaired by Tenant at its expense. Tenant may place liens on any furniture, trade fixture, equipment or appliance installed by Tenant. Landlord hereby waives any lien or right in and to such items. Landlord agrees, if required by any lending institution, to execute such additional lien of waivers or other documents to evidence its waiver of lien. Any liens permitted hereby shall attach only against the personal property of the Tenant and shall not attach to the real estate or any personal property of the Landlord. Attached hereto as Exhibit H is a copy of the Tenant's lender's standard Landlord Waiver and Consent Agreement which the Landlord agrees to complete, execute and return to the Tenant simultaneously with its execution of this Lease. ARTICLE XX: SECURITY AND RENT DEPOSITS 20.01 AMOIINT OF SECIIRITY DEPOSIT: Intentionally Omitted. 20.02 USE AND BEER" OF SECIIRITY DEPOSIT: Intentionally Omitted. 20.03 RENT DEPOSIT: Tenant, contemporaneously with the execution of this Lease has deposited with Landlord the sum set forth in section 1.1 (L) to be held and applied to the first month's rent due under this Lease. ARTICLE XXI: TENANT COVENANTS. EASEMENTS 21.01 TENANT COVENANTS: Notwithstanding anything to the contrary contained herein, this Lease is subject to and made on the understanding that Landlord has granted and/or will grant certain restrictions and exclusive use covenants to other tenants of the Shopping Center (herein the "Tenant Covenants"). Tenant acknowledges that Tenant's use and/or occupancy of the Demised Premises in violation of any current or future Tenant Covenants would subject Landlord to substantial damages and as such Tenant acknowledges and agrees that any such violation by Tenant of any such Tenant Covenants shall constitute a default hereunder entitling Landlord to cancel this Lease or enjoin Tenant from violating such Tenant Covenants, or exercise any of the._=emedies stated in Article XIV hereof and any other remedies available under the law of the Commonwealth of Pennsylvania. Nothing contained in this Section 21.01 shall be construed to permit Tenant to expand the use restrictions set forth in Section 1.1 (M) hereof. -44- 21.02 EASEM S: The Shopping Center is and/or may be encumbered and/or benefitted from time to time by certain easements, development and operating covenants, and similar agreements. Tenant agrees that it shall abide by any such agreement, including any such agreement as may be amended from time to time in Landlord's sole discretion. Landlord shall have the'right to enter into and/or terminate any such agreement in Landlord's sole discretion. IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the day and year first above written. Signed, Sealed and Delivered in the presence of: i=i= (58/92) LANDLORD: SILVER SPRING CENTER LIMITED PARTNERSHIP By: ABS DEVELOPMW COMPANY Its: qWr PARTHE& ? By: 3.c its: Fxecut Vice President TENANT: JMR FOODS, INC. By Its: -45- ,. Exhibit B J ' PURCHASF, AND SA -AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and executed this 28th day of June, 1996, by and between the Silver Spring Center Limited Partnership, a Connecticut limited partnership with offices at Suite 2575, one Atlanta Plaza, 950 East Paces Ferry Road, Atlanta, Georgia 30326 (the "Seller") and Silver Spring Commons Holdings, Inc., a Pennsylvania corporation with offices at Suits 200, 259 Radnor-Chester Road, Radnor, Pennsylvania 19087 (the 'Buyer"). WHEREAS, Seller is the owner in fee simple of the real estate more particularly described on Exhibit "A" attached heretu and incorporated herein by reference, the buildings, improvements and structures thereon (except for the buildings, improvements and structures located on that part of the Real Property which is subject to ground leases) and the easements, access rights, and appurtenances and hereditaments thereto (all being hereinafter collectively referred to as the `Real Property'); and WHEREAS, Seller is the owner of the personal property more particularly described on Exhibit 'B" attached hereto and incorporated herein by reference, located on and used in connection with the Real Property (such personal property being hereinafter collectively referred to as the "Personal Property°); and WHEREAS, the Real Property and the Personal Property comprise a two hundred sixty nine thousand three hundred two (269,302) net rentable square foot shopping center on thirty-seven and nine hundred four thousandtbs (37.904) acres more or less which are located on the Northeast corner of United States Route 11 and Pennsylvania Route 114 in Silver Spring Township, Cumberland County, Pennsylvania and known as Silver Spring Commons; and WHEREAS, Seller is the landlord under the tenant leases and ground leases affecting the Property, which ground leases and tenant leases (there are no subleases known to or approved by Seller except as permitted in the Amendment of Lease dated July 14, 1994 between Seller as Landlord and M.J. Todd, Inc. as Tenant) are listed and described on Exhibit "C" attached hereto and incorporated herein by reference (the "Leases"); and WHEREAS, Seller has entered into and is the obligee under certain service, supply, maintenance, leasing and management agreements if any affecting the Personal Property and the Real Property which service, supply, maintenance, leasing and management agreements are listed and described on Exhibit "D" attached hereto and incorporated herein by reference (the 'Contracts); and WHEREAS, Seller is the owncr of certain rights and benefits relating to the Property, including all development rights, permits, licenses, warranties (including but not limited to the roof warranties contained on Exhibit "L" attached hereto and incorporated herein by reference), guarantees, indemnities and deposits, (these rights of Seller's counsel required by Section 6.5(aXviii) hereof may be rendered under Connecticut law. 11.6 Time is of the Essence. Time is of the essence with respect to each and every provision of this Agreement. 11.7 Performance on Business Days. If any date for the occurrence of any event or act under this Agreement falls on a Saturday or Sunday nr legal holiday in the Commonwealth of Pennsylvania, then the time for the occurrence of such event or act sball be extended to the next succeeding business day. 11.8 Entire Agreement This Agreement, together with all the Exhibits attached hereto and incorporated by reference herein, constitutes the entire undertaking between the parties hereto, and supersedes any and all prior agreements, arrangements and undertakings between the parties. 11.0 Counterparts This Agreement may be executed in any number of identical counterparts by the parties hereto, each of which shall collectively constitute nne agreement, but in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year above first written, intending to be legally bound hereby. SELLER: SILVER SPRING CENTER LIMITED PARTNERSHIP By: AHOLD REAL ESTATE COMPANY Its only general partner and its duly autho ' gent Title: ?4i;,ofi,? E BUYER: SILVER SPRING COMMONS HOLDINGS, INC. By: Name: Title: Exhibit C PPR-29-1999 1046 MORGAN LEWIS PHILADELPHIA 215 963 5299 P.02i12 ASSIGNMENT AND ASSUMPTION OF LEASES This Assignment and Assumption of Leases ("Assignment") is entered into as of this &L day of January, 1999, by SILVER SPRING COMMOIss HOLDINGS, INC., a Pennsylvania corporation, with an address ato 259 Radnor-Chester Road, Suite 200, Radnor, PA 19087, Attn: Kathleen Hands ("Assignor"), and EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership, with an address of LMRES Real Estate Advisers, Ino., c/o Legg Mason Real Estate Services, Inc., 1735 Market Street, 12th Floor, Philadelphia, PA 19103 ("Assigo?"), For valuable consideration, the parties hereto, each intending to be legally bound and to bind their respective successors and assigns, hereby covenant and agree as fellows. BackgMun A. Assignor is the owner of that certain real property known as Silver Spring Commons Shopping Center situated in the Township of Silver Spring, County of Cumberland, Pennsylvania (the `Real Property'). The Real Property is more particularly described on ExhjWj A_' attached hereto and made a part hereof. B. In connection with the contribution of the leasehold estate in the Real Property pursuant to that certain Contribution Agreement, dated as of December 30, 1998 (the "Agreement'), !,y and among Assignor, as contributor, and Assignee, as acquiror, Assignor has agreed to assign its interest in the leases pertaining to the Real Property to Assignee, and Assignee has agreed to assume and accept the same. NONV. THEREFORE, in consideration of the premises, the promises and conditions contained herein and in the Agreement, and other good and valuable consideration in hand paid by Assignee, to Assignor, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: I. Assignor hereby assigns, transfers and sets over unto Assignee, and Assignee hereby accepts, all Assignor's rights, title and interest in and to those certain leases, which are listed in Exhibit "B' attached hereto and made a part hereof ("Leases"), which Leases pertain to various portions of that certain Real Property which Assignor has contemporaneously herewith conveyed unto Assignee. This Assignment includes (i) all sureties and guaranties of the Leases, (H) the right to collect from all tenants under the Leases (collectively, "Tenants") all rents and other payments whether heretofore or hereafter payable (to be applied as set forth in the Agreement), (iii) the right to enforce all obligations of the l"1711154M.1 _PPR-28-1999 10:47 ^MGAN LEWIS PHILgDELPHtg 215 963 5299 P.03i12 Tenants under the Leases and all sureties and guaranties, and (iv) all security deposits paid by the tenants under the Leases. 2. Assignee hereby assumes and agrees to perform all agreements and abligations of the landlord with respect to the Leases arising on and after the date hereof. However. Assignor, and not Assignee, shall be responsible for the observance and performance of all agreements and obligations of the landlord with respect to the Leases arising prior to the date hereof. 3. Nothing herein contained is intended to create agreements or obligations of the landlord to any Tenant under any Lease. 4. Assignor shall defend, protect, indemnify and save harmless Assignee from and against any and all liabilities, suits, actions, losses, damages, costs and expenses, including without limitation counsel fees, suffered or incurred by Assignee resulting from or relating to any failure by Assignor to observe or perform any of its agreements or obligations under the Leases prior to the date hereof. Assignee shall defend, protect, indemnify and save harmless Assignor from and against any and all liabilities, suits, actions, losses, damages, costs and expenses, including, without limitation counsel fees, suffered or incurred by Assignor resulting from or relating to any failure by Assignee to observe or perform any of its agreements or obligations under the Leases on or after the date hereof. [Execution Page Follows) n owts+3e. RPR-29-1993 1047 MORGRN LEWIS PHILADELPHIA 215 963 5299 ?.04/12 IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as of the date first above written. SILVER SPRING COMMONS HOLDINGS, INC., a Pennsylvania corporation By: LOCI? Nance: DKwe V ?t?rOCr: Title: yrcF- ^C9Sint107- EASTERN RETAIL HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership By: LMRES Real Estate Advisers, Inc., its general partner By: Name: kvid v. x-f c Title: Vicr- P•e%sia&,7- (997AIM1.1 -3- APR-29-1999 10:49 MaW-N LEWIS PHILADELPHIA 215 953 5299 P.05/12 FAMBIT "A" PNw2mm.l _q_ PPR-28-1999 10:49 MDRGPN LEWIS PHILRDELPHIR 21S 963 5299 P.06i12 SCUDMX A Legal Description Lot No. 2 Silver Spring Commons All that certain lot, tract or parcel of land situated in Silver Spring Township, Cyaborland County, Pennsylvania; bounded and described as-follows: Degiaaiag at a point on the eastern right-of-way line of S.R. 0114, said point' bing located one hundred ai,ghty and fifty-six hundredths feet north of the northern right-cf-way line of the Carlisle pike ((S.R. 0011); thence from said point of logimaiag, by the eastern rigbt-of-way line of S.R. 0114, the following four (4) courses 3.)' by a Curve to the left, having.a radius of nine hundred twenty-eight and fifty-one hundredths feet (S = 926.5&'), an arc distance of forty-six and nina hundredths feet (AIL a 46,098) 2) North nineteen degrees, seventeen minutes, thirty seconds went (N 19' 17' 30" A) a distance of one hundred forty-two and seventy-.six hundredths feet (142.76') 3) North ten degroes,.forty-five Minutes, thirty-nine seconds West (N 10' 451 391' W) a distance of two hundred two and twenty-four hundredths feet (202.24') 4) North nineteen degrees, seventeen minutes, thirty seconds. west (31 1!' 171 3011 W) a distance of two hundred forty feet (240.001) to a point, thence, by the southern right-of-way lane of sporting Green Drive, the following five (5) courses 1) North sixty-eight d ees, fifteen atnuhos, seven seconds East (!I 68: 15' 07" E) a distance of one hundred sixteen and sixty-seven hundredths feet (116.671) 2) by a -curve to the loft, having a radius of three hundred thirty feet (R s 930.001), an arc distance of two hundred four and thirty-one hundredths feet (204.211) 3) North thirty-fiva degrees, fourteen minutes, ten seconds East (N 35' 14' 1011 E) a distance of two hundred twenty-five and six hundredths feet '(225.06') 4) North twenty-nine Qegrees, thirty-one minutes, thirty-two seconds East (N 29' 31' 32" 8) a'distance of fifty and twenty-five hundredths feet (50.251) 5) by a curve to the left, having a radius of three hundred twenty-fiva feet (R = 325.006), an arc distance of two hundred seventeen and thirty-four hundredths feet (A/L = 217.341)to a point; thence by the acuthern right-of-way line of sporting Green Drive and by Lot No. i North three degrees, four minutes, forty-five seconds West (N 03° 04' 45" W) a distance of four hundred four and forty-six hundredths feet (404:468) to a point) thence by Lot No. 1 the following five (5) courses 1) by a curve to the right, having a radius of two hundred saventy-fiva feet (R = 275.001) an a=c distance of seventy-nine and fifty-two hundredths feet (AIL s 79.821) 2) Due East (N 90' Do' 00" E) a distance of too hundred forty-one and ninety-nino hundredths feet (241.991) 3) South forty-threa degrees, forty-two minutes, twenty- five seconds East (9 43' 421 2511 E) a distance of one hundred twenty and ten hundredths feet (12o.101) 4) South eighty-six degrees, twenty-four minutes, forty-five seconds East (S 86' 24' 4511 E) a distance oi one-hundred seventy-four and ninety-two hundredths feet EXHIBIT ^A" poor 143 PAGE 654 APR-28-1999 10:49 PIORGAV LEWIS PHILADELPHIA 215 963 5299 P.07/12 SCBEDULB A CONTINUED (174.921), (erroneously shown on plan as North eighty-six degrees, twenty-five minutes, forty-eight seconds East a distance of one- hundred seventy-four and ninety'-one hundredths feet) s) North si7hty-four degrees, twenty-two minutes, seven seconds East (1T 84' 22 0711 8) a distance of two hundred twority-seven and thirty-seven hundredths feet (227471)to a point at or near the top of bank of the Conedoguinet creek; thence down said creek south sixty degrees, two minutes, two seconds East (8 90' oz' 02" a) a distance of. eighty-six and fifty-three hundredths feet (26.531) to a point; thence by Lend now or late of Christian and Sara Thomas South zero degrees, fifty-nine minutes, four seconds west (8 004.391 04'0 x) a distance of three hundred thirty-eight and fifty hundredths feet (332.501) to a point on the southern right-of-way line of Creek Drive; thence by said right-ot-way the following two (2) courses 1) North eighty-three degrees, thirty-five minutes, thirty-nine seconds East (N 230 354 3911 E) a distance of three hundred sixty- four and nizietean hundredths feet (344.191) 2) North seventy-eight degrees, forty-thrae minutes, fifty-one seconds East (N 7e' 43' S1I' E) a distaaae of thirty-one and forty hundredths feet (31.401) to a point; thence by the western right-of-way line of silver Drive South thirteen degrass, thirty-three minutes, five seconds East 4S 130 331 05" s) a distance of six hundred seventy and ninety-six hundredths feet (670.960) to a point; thence by Lot No. 7 the following eight (8) courses 1) Due West (N 90' 001 0011 W) a distance of one hundred ninety-nine and eighteen hundredths feet (1994131) 2) Due North (N 001 002 Coll 8) a distance of seventy-seven and seventy-nine hundredths feet (77.791) 3)'Due West (N 90 001 00" 9I) a•distance of one hundred seventy-five and sixty-seven hundredths feet (178.671) 4) Due South (S Co' CO 00" E) a distance of seventy- seven and seventy-nine hundredths feet (77.79') 5) Due West (N 90' 001 0011 W) a distance of two hundred twenty and sixty-two hundredths feet (220.621) 6) Due Korth (N o0' ool 00" L) a distance of forty-six and sixteen hundredths teet (46.160) 7) South eighty- five degrees, thirty minutes, thirty seconds West (B 05' 300 ;0" W) a distance of six hundred six and eighty-one hundredths feet (606.411) 6) South four degrees, twenty-nine minutes, thirty seconds East (9 046 29' 30" F,) a distance of five hundred eighty-two and sixty-seven hundredths -feet (582.676) to a point on the line of Let No. 5; thence by Lot No. 5 and Lot No. 3 South eighty-five degrees, thirty minutes, thirty seconds West (S 800 301 30"•W) a distance of two hundred thirty-four and twenty-seven hundredths feet (234.271) to a point; thence by Lot No. 3 South eigahty-five degrees, eighteen minutes, forty-five seconds West (S 85 141 4511 W) a distance of two hundred forty-seven and seven hundredths feet (247.079) to a point on the eastern right-of-way line of S.R. 0114, the place of Beginning. Said tract contains 1,469,627.64 square toot or 33.74 acres. Being Lot No. 2 on a Final Limited Resubdivisio Lots del and ,#2 for Silver spring commons as reacrded i a of the Recorder of Deed of and for Cumberland court in Plan Book 65 Volume _, Page 3 hglo"AL EXHIBIT "A" .J A •j oicc 'r..r+.s APR-29-1999 10;50 MO.RGAN LEWIS PHILADELPHIA 215 963 5299 P.09/12 5CODM 11 Co t16D LEGAL DESCR)p'IION OLIVE GARDEN . LOT ,Y3, SILVER SPMNQ COMMONS SMVER SPRING TOWNSI0, CWMEZ.AND COUNTY PEMMYLVANMA • BEGINNING at a point, said point being the intersection of the Northern line of the Carlisle Pace (S.R.0011) with the Eastem line of S.R.0114; theca in a Northerly direction tlong tl14 FAstem line of S.R.0114, by a chnv4, curving to the left, having a radius of 928.51 feet cad an arc length of 180-16 feet to a plot, said point being the intersection of the Southem line of a 50' Right-of-Way and the 3ststam line of S.R. 0114; thence aloft; the Southern line of the 50' Right-of•Way the following two (2) courses and distances: 1. North 85 degrees 18 minutes 4S seconds Fast, a distance of 247.07 feet to a point, 2. North 85 degrees 30 minutes 30 seconds Fast, a distance of 228.78 fat to a peinr, ' Thence along the Westem line of l.ot 0. South 04 degrees 29 minutes 30 seconds Fast, a distance of 180.00 feet to a point on toe Northern line of the Ca3isle Pike; thence along the Northern line of the Carlisle Pike, South 85 degrees 30 minutes 30 seconds West, a distance of 455.80 feet to a point, said point being the place of beginning. CONTADTING 83,224.3737 square feet OR 1.911 Acres. EXHIBIT "A" PPR-29-1999 10?50 MORGA4 LEWIS PHILADELPHIA 215 953 5293 P.03/12 SCE110= A CORTZMED LEGAL AESCRIMON .*TACO DELL / EOT IN NOW LOT 05 OP SILVER SPPING CO 4t0NS SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY PENNSYLVANIA = TEAT CERTAW tract or parcel of land situate on the Nonhiast Corner of Route , . 114 (S.R.OI14) and the Carlisle Pflce'(S.R.0011) in the Township of Silva Spring, County of Cumberland, Commonwealth of Pennsylvania, more partlcnlarly bounded. and described as follows to wit: BEGINNING AT A point on the Ndnbcm Right-of-Way line of tha Carlisle Pikes aid point being 570.00 feet But of the intersection of Route 114 and the Carlisle Pike; thence aloe; lands of Lot #3 of Silvea Sprin; Commons, North 04 degrees 29 minutes 30 seconds pest' a distance of 180.00 feet to apoint, said point being on the 50-1oot wide access easement between Lot C5 and Lot ail of Silver Spring Commons; thence along the aforementioned access easement, North 85 degrees 30 minutes 30 seconds Fast, a distance of 284.06 feet to apoint; thence along a 92.00 foot access easement for the estimate to Silver Spring Commons from the Carlisle Plke, South 04 degrees 29 minutes 3b seconds Fast, a distance of 160.00 feet to apolnt; thence on . A curve, cuiving to the right, having a radius of 50.00 feet and an'aro length of 78.54 feet to' apbint on the Northern WSht-of Way line of the CuEste Pike; thence along the btorthert ]Rlght- of Way line of the Carlisle Pike, South 85 degrees 30 minutes 30 seconds West; a distance of 142.22 feat to a point; thence along same. North 04 degrees 29 minutes 30 seconds West, a distance of 30.00 feet to a point; thb ice along same, South 85 degrees 30 minutes 30 seconds West, a distance of 91.84 feet to a point, said point being the PLACE OF BEGINNING. BEING IRNOWlf AS Lot S'5 as 'shown or, the Final Resubdivision Plan, of Lots At3, #4 and PS, Silver Spring Commons. CONTAMiN.G $6,361.31 squats feet OR 1.294 acres. .. ' M13IT "A" FrffK J43 PAC: 657 ' flPR-29-1993 10 51 M7Po3flN ?EWIS PHI! HDE?PHIR DCEMD= A CONYUMM ALGAL DESCRIPTION OUT PARCEL 06 215 963 5233 P.10i12 BEGINNING at a point an the Northern right-of-way line of v.s. Route 11 and the Western line of land now or late of Richard L. Radabaugh; thence along the Northern right-of-way line of U.S. Route 11 by a curve, curving to the left, having a radius of 5,779.65 feet and an arC length 'of 246.79 feet to the line of land of Lot 17; thence along Lot J7 by a curve, curving to the right, having a radius"of-30.00 feet and an arc length of 77..63 Peet to a point; thence continuing along.same, North 04 degrees 29 minutes 30 seconds West,• a distance of 160.97 feat to a point; thence continuing along same/ North 85 degrees 30 minutes 30 seconds East, a distance of 165.31, feet to a point; thence continuing along same South 42 degrees 22- minutes 10 seconds East, a distance of 74.10 feat to the Northwest corner or lands now or late of Richard L. Mdabaugh; thence along lands of Radabaugh, south co degrees 59 minutes 04 seconds West, a distance of 157.69 feet to a point, said point being the place of SEG32 ma. CONTAINING 41,797.63 Square Feet or 0.959 Acres EXHIBIT "A" ra& x.43 PA:. 6M RPR-28-1939 10:52 MORGAN LEWIS PHILgDELrHIg 215 353 5239 P.11i12 EXHIBIT "B" PmXm6m.: -5- APR-29-1999 10:52 MORN LEWIS PHILaDELPHIA 215 353 5299 P.12i12 wS- ?i ?i . w. w. w w w w w .......... . M F; 11111111111191111 lE??E?a6???lSEE?ElEE; - r n?- 'r w ? ? ..w f •?? A Go 99Vd MAI www*wwwwwwww w*`*••.+•+. + ++w•ww+wwwwwwrw ww+ww+ w T"ITTHIp:1111 m41111114111gsii4l4 a ?c,:asa:e_eaaaaae:eaa a 1 a:: ?,? E tee ?°? 11 If ii '9rM*w63LV9Mw LSB9L69LIL ZvOT 646u, s: a RAMOSC17 P1 'nit `a 'v OM nn:a anus m1".7n ne 11 ,i TOTAL P.12 Exhibit D . l; ..- . JUL. -01' 99(THU) 10:43 LEGG MASON REAL ESTATE SERVICES FIRST AMENDMENT TO LEASE TEL:610 964 0830 P.001 THIS FIRST AMENDMENT is made as of this 3/ day of O 1997, by and between SILVER SPRING COMMONS HOLDINGS INC, a Penti$+lvmia corporation, successor by assignmetu from Silver Spring Center Limited partnership ("Landlord") and jMR FOODS, INC d/b/a Little Cmsar's pizza CTenate). BACKGROUND: A. Landlord is the landlord and Tenant is the tenant under a certain indenture of Lease pursuant to which Tenant leases from Landlord Store H30 containing approximately one thousand six hundred (1,600) square feet of space in Silver Spring Shopping November 41992 and exxppu' g on Nove"Demised mber 30,1997 (the") for a term commencing Term"). B. Tenant is desiring of exercising its first opdoa to extend the Lease pursuant to Sections 1.1j, and 1.6 thereof. illtnt$ee}is a,M?l NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein contained, and intending to be legally bound, Landlord and Tenant hereby covenant and agree as follows: 1. Incorporation byReference. The provisions of the foregoing "Background" section of this First Amendment are hereby incorporated into and made a pan of this First Amendment. Defined Terms Except as expressly otherwise indicated herein to the contruy, all capitalized words and phrases contained in this Firsc Amendment shall have the same meaning and definition as are contained in the Lease. 3, Exercise of Option to Extend. Tenani, by its execution of this First Amendment, hereby ratifies, confirms and acknowledges its intention to exercise its option to extend the Lease pursuant to Sections 1.1,j, and 1.6 thereof. Landlord hereby t1*1 acknowledges and accepts This First Amendment as constituting Tenanr's exercise of its option to extend the Lease as aforesaid 4. The Extended Term, The Original Term is hereby extended for an additional period commencing on Decem er 1, 1997 and expiring on November 30 2002 (such additional period is herein called the "Extended Term"). --0 St 7 Goat-It' Fax Note 7671 o+1r7 -1 ,? fro ep. Co. AIL. -01'99(THU) 10:44 LEGG MASON REAL ESTATE SERVICES TEL:610 964 0830 P. 002 5. Terms and Conditions of the Extended Term. Except as hereinafter provided, terms and conditions of the Lease during the Extended Term shall be the same as pertain during the Original Term except tba the Minimum Rent shall be as is set forth in said Section 1.1 ]. Byway of restatement, the Tenant's Minimum Rent during the Extended Term is as follows: mon 12/1/97 -11/30/99 S2,066,67 $244,0000.00 12/1/99 -11/30/01 $2,133.33 $25,600.00 12/1/01- 11/30/02 $2,200.00 $26,400.00 6. Other Amended Teems and Conditions. a. The name and address of the Landlord asset forth in section 1,0. of the Lease are hereby charged to read as follows: "O. LANDLORD: Silver Spring Commons Holdings Inc. C/o Wargo Properties, Inc. 580 Shoentakcr Road, Suite 100 Icing of Prussia, PA 19406" follows; b. Section of 19.6. of the Lease is hereby restated in its entirety so as to read as "19.6 NOTICES AND PAYMENTS: anynotice by Tenant to Landlord must be served by certified mail, postage prepaid, or by nationally recognized express mail delivery service, addressed to Landlord at the place designated for the payment of rent, with copies to: john S. Randolph, jr., Esq., 259 Radnor•ChesterRoad, Suite 200, Radnor, PA 19087 or at such other address or addresses as Landlord may designate from time to time by written notice. Any notice by Landlord (which may be given byLahdlord or Landlord's attorney or in-geuierrc company) to Tenant must be served by certified retail, postage prepaid, or by nationally .. 0*0 recognized express mail delivery service, addressed to Tenant atAk" 105 5. SPOR T I NG ?e+hrwii>.wrasr or --such other address or addresses as Tenant may HILL ROAD designate from tithe to time by writren notice to Landlord. All notices MECHA NICSB URG, shall be effective upon delivery or attempted delivery in accordance with PA. 17055 this Section 19.6. Until otherwise notified in writing, Tenant shall pay all rent reserved herein and all other sums required under this Lease by check payable to the order of Landlord, and shall forward the satire to Landlord as hereinpravided" a. The guaranty of Mark J. Wilson and Richard A. Wilson is hereby deleted. JUL. •01'99(THU) 10:45 LEGG MASON REAL ESTATE SERVICES TEL:610 964 0830 P. 003 7. Miscellaneous. a. Except as expressly hereinabove amended, the Lease shallremain unmodified and in full force and effect, and the Lease, as amended by this First Amendment, shall be binding upon and inure to the benefit of Landlord and Tenant and their respective successors and assigns. b. In the event of any conflict between the provisions of the Lease and the provisions of this first Amendment, the provisions of this First Amendment shall control and prevail. c, The section headings of this First Amendment are for convenience of reference only, and form no pan hereof. IN WITNESS WI f MEOF, Landlord and Tenant have executed and delivered this First Amendment as of the date and year first above written. LANDLORD: SILVER SPRING COMMONS HOLDINGS INC B. e?Al, 1A TENANT: JMRFOODS, INC. py, I w?- Attest-, el-mr."MmIM&MC ?o ?o A R_ ?J ? ` l wu. - 5Z f.. C .fit w Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 57782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, L.P., Plaintiff V. JMR FOODS, INC., Ua LITTLE CAESAR'S PIZZA, a/k/a J.M.R. FOODS, INC., Defendants II?II, u IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 9y -NO. ,SGp? qt? CIVIL ACTION - LAW TO: JMR FOODS, INC., Na LITTLE CAESAR'S PIZZA, alk/a J.M.R. FOODS, INC. 105 South Sporting Hill Road Mechanicsburg, Pennsylvania 17055 You are hereby notified that on August 1999, judgment by confession was entered against you in the sum of $ in the above-caplione case. / DATE: Ci `L _El 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. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 1 hereby certify that the following is the address of the Defendants stated in the certificate of residence: JMR FOODS, INC., f/a LITTLE CAESAR'S PIZZA, a/k/a J.M.R. FOODS, INC. 105 South Sporting Hill Road Mechanicsburg, PA 17055 / Attorney for Plaintiff :125529 Wo ( ? ? a. C,T c co r c G ? cn J U Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 57782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 LMRES REAL ESTATE ADVISERS, INC., tie EASTERN RETAIL HOLDINGS, L.P., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff -NO. V. CIVIL ACTION - LAW JMR FOODS, INC., Va LITTLE CAESAR'S PIZZA, aikia J.M.R. FOODS, INC., Defendants IN EJECTMENT NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON TO: JMR FOODS, INC., tie LITTLE CAESAR'S PIZZA, a/Wa J.M.R. FOODS, INC. 105 South Sporting Hill Road Mechanicsburg, Pennsylvania 17055 A judgment in the amount of $107,830.88 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOUR OR YOU MAY LOSE YOUR RIGHTS. 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. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 :125529 JOHNSON, DUFF , STEWART & WEIDNER BY: David J. Lanza L,t? ?s -.: -)_. a p f:: CD Cz ' u ' ?'- Q i cu Cq 4t G Cri ti SHERIFF'S RETURN - REGULAR CASE NO: 1999-05002 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LMRES REAL ESTATE ADVISERS INC vs. JMR FOODS INC ET AL CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon JMR FOODS INC T/A LITTLE CEASARS PIZZA A/K/A JMR FOODS the defendant, at 15:13 HOURS, on the 20th day of August 1999 at 105 S SPORTING HILL RD MECHANICSBURG, PA 17055 ,CUMBERLAND County, Pennsylvania, by handing to MARK WILSON (PRESIDENT) a true and attested copy of the CONFESSION OF JUDGMENT together with NOTICE OF JUDGEMENT & EXECUTION, COMPLAINT IN EJECTMENT and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Docketing 18.00 Service 7.44 Affidavit .00 Surcharge 8.00 $-3 Ij omas ine, eri .JO NSON DUFFIE, STEWART by ep eri Sworn and subscribed to before me this .z 3hl day of 19 9 A. D. rotnonotarr