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HomeMy WebLinkAbout99-05991`r 1f LEVIN MANAGEMENT CORPORATION Agent for FALK US PROPERTY INCOME FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. (/7 -.59?'/ 0Ww CIVIL ACTION - LAW NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17103 Telephone: (717)149-3166 AVISO USTED HA SIDO DEMANDADO/A en corte. Si usted desea defenderse de has demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y mdicando en la Corte por escrito sus defensas de, y objecciones a, has demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y on fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. L USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 LibertyAvenue Carlisle, Pennsylvania 17103 Telephone. (717)249-3166 LLACE & NURICK By Mc4Fenson Matche s Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: ')- 4- "1 J K 4 LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant NO. CIVIL ACTION - LAW 1. Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership ("Plaintiff'), is a New Jersey corporation, with authority to do business in the Commonwealth of Pennsylvania, with its principal place of business at 893 Route 22 West, North Plainfield, New Jersey 07060. 2. Defendant, J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza ("Defendant') is a Pennsylvania corporation with its principal place of business at 5012 Lenker Street, Mechanicsburg, Pennsylvania 17055. 3. On or about March 8, 1996, Defendant entered into a Lease Agreement with Carlisle Marketplace Limited Partnership, predecessor in interest to Plaintiff ("Lease") for its business known as Little Caesar's Pizza at the Carlisle Marketplace Shopping Center in Carlisle, Cumberland County, Pennsylvania. Attached hereto as Exhibit "A" is a true and correct copy of the Lease. 4. The Lease was duly executed by Defendant, who agreed to be legally bound by the terms of said Lease. 5. The Lease provides that Defendant shall pay monthly rent and Defendant's pro rata share of insurance, taxes and operating costs, as well as all other charges accruing under the Lease or identified as additional rent, on the first day of each calendar month during the term of the Lease. 6. On or about June, 1999, Defendant terminated its business operations and removed all of its property from the Carlisle Marketplace Shopping Center. 7. Pursuant to Section 4.2 of the Lease, Defendant was obligated to continuously operate its business at the Carlisle Marketplace Shopping Center for the term of the Lease. 8. Defendant has willfully failed to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease for the subject premises. 9. Defendant's failure to pay rent and other charges as per the terms of the Lease constitutes a material breach of the Lease. 10. The aggregate sum due and owing under the Lease, as of August 23, 1999 is Sixty-Four Thousand, Six Hundred and Sixty-Six Dollars and Thirty-two Cents ($64,666.32), exclusive of attorneys' fees. 11. Pursuant to the Lease, Defendant waived its rights to notice upon default and acceleration of the terms of the Lease. 12. Section 15.2 of the Lease provides that, in the event of default, Plaintiff may terminate the Lease without notice to Defendant and Plaintiff is entitled to collect rent and charges equivalent to rent reserved in the Lease for the remainder of the stated terms, together with actual and reasonable attorney's fees. 13. Pursuant to the Lease, Plaintiff has accelerated the Lease. 14. As of August 23, 1999 the amount dire under the Lease is Sixty-Four Thousand 1 Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees. 15. Defendant's failure to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease provides Plaintiff with the authority to file this Complaint. WHEREFORE, Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership, demands judgment against J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza in the sum of Sixty-Four Thousand Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three •- , j Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees and all costs of suit, any pre judgment and post judgment interest, as any other amounts Plaintiff may be entitled to collect under law or in equity. McNEES, WALLACE & NURICK ?) - ts'?? By F. Stephenson Maithes Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: ?- l i, ? 59 1, Evelyn S. Leonard, Vice President and General Counsel of Levin Management Corporation, agent for Falk US Property Income Fund , L.P., successor to Carlisle Marketplace Limited Partnership, am authorized to verify this Complaint on its behalf and further; the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unworn falsification to authorities. BY: Levin Management Corporation, agent for Falk US Property Income Fund , L.P., Successor to Carlisle Marketplace Limited Parmership By: ?„ cam/ ? ?0? Evelyn S. Leonard, Vice President and General Counsel Dated: September 15, 1999 TOTAL P.02 i i i Exhibk A CARLISLE MARKETPLAC SHOPPING CENTER ST )RF 'AS INDEX T L 7AH :7Q: LM,,%.FOODS, INr, Ila lit" ? CAESAR'S P1 ' A ARTICLE 1 - GRANT AND BASIC TERMS Section 1.1 -Basic Data Section 1.2 - Construction of Demised Premises Section 1.3 - Demised Premises Section 1.4 - Acceptance of Demised Premises Section 1.5 - Tenn of Lease Section 1.6 - Option to Extend Section 1.7 - Landlord's Termination Right ARTICLE ill - RENT Section 2.1 - Annual Minimum Rent Section 2.2 - Commencement of Rent Section 2.3 - Taxes Section 2.4 - Common Area Maintenance Charges Section 2.5 - Percentage Rent Section 2.6 - Late Charge Section 2.7 - Definition of Additional Rent ARTICLE III - PERCENTAGE RENT Section 3.1 - Gross Sales Reporting and Percentage Rent Payment Section 3.2 - Gross Sales Section 3.3 - Record Keeping Section 3.4 - Audit ARTICLE IV - USE OF DEMISED PREMISES Section 4.1 - Tenant's Use Section 4.2 - Continuous Operation Section 4.3 - Radius of Operation Section 4.4 - Utilities Section 4.5 - Signs Section 4.6 - Affecting Tenant's Business 5 ARTICLE V - COMMON ARRAS Section 5.1 - Monthly Common Area Maintenance Charges Section 5.2 - Definition of Common Areas Section 5.3 - Common Area Operating Costs Section 5.4 - Control of Common Areas 7 ARTICLE VI - CONSTRUCTION AND ALTERATIONS Section 6.1 - Landlord's Construction Section 6.2 - Tenant's Alterations Section 6.3 - Builder's Risk Section 6.4 - Tenant's Discharge of Liens 8 ARTICLE VII - MAINTENANCE AND REPAIRS Section .I - Landlord's Obligolom Section 7.2 - Tenant's Obligations Section 7.3 - Surrender of Demised Premises 9 ARTICLE VIII - INSURANCE AND INDEMNITY Section 8.1 - Casualty Insurance Section 8.2 - Waiver of Subrogation Secth n 8.3 - Increase in Fire Insurance Premiums Section 8.4 - Liability Insurance Section 8.5 - Rental Interruption Insurance Section 8.6 - Indemnification of Landlord Section 8.7 - Plate Glass Section 8.8 - Landlord's Mortgagee K r. 10 ARTICLE IX - SUBORDINATION, NOTICE, ESTOPPEL AND A'ITORNMENT Section 9.1 - Subordination Section 9.2 - Notice to Landlord Secdcv. 9.3 • Estoppel Cen:f:o^.ie Section 9.4 - Attomment Section 9.5 - Assignment of Rents i I ARTICLE X - ASSIGNMENT AND SUBLETTING Section 10.1 -Consent Required 12 ARTICLE XI - WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES Section 11.1 - Waste or Nuisance Section 11.2 - Insurance Requirements Section 11.3 - Hazardous Substances Section 11.4 - Government Permits Section 11.5 - Survival 13 ARTICLE Y_:7 - ADVERTISL' 43 A14D PROMOTIONAL PROGRAM Section 12.1 - Advertising and Promotional Program 14 ARTICLE X111- DESTRUCTION Section 13.1 - Total or Partial Destruction Section 13.2 - Partial Destruction of Shopping Center Section 13.3 - Tenant's Restoration Section 13.4 - Substantial Damage 15 ARTICLE XIV - EMINENT DOMAIN Section 14.1 - Condemnation Section 14.2 - Restoration of Demised Premises 15 ARTICLE XV - DEFAULT OF TENANT Section 15.1 -.Default Section 15.2 - Remedies Section 15.3 - Additional Rent Section 15.4 - Guarantors Section 15.5 - Bankruptcy or Other Default Section 15.6 - Failure to Pay, Interest 18 ARTICLE XVI - ACCESS BY LANDLORD Section 16.: - Right of Entry 18 ARTICLE XVII - TENANT'S PROPERTY Section 17.1 - Taxes on Leasehold Section 17.2 - Loss and Damage Section 17.3 - Notice by Tenant 19 ARTICLE XVIII - HOLDING OVER, SUCCESSORS Section 18.1 - holding Over Section 18.2 - Successors and Assigns 19 ARTICLE XIX - QUIET ENJOYMENT Section 19.1 - Landlord's Covenant 19 ARTICLE XX - MISCELLANEOUS Section 20.1 - Craiver Section 20.2 - Accord and Satisfaction Section 20.3 - No Partnership Section 20.4 - Force Majeure Section 20.5 - Landlord's Liability Section 20.6 - Notices and Payments Section 20.7 - Financial Statements Section 20.8 - Guarantors Section 20.9 - Captions and Section Numbers Section 20.10 - Definitions Section 20.11 - Partial Invalidity Section 20.12 - Recording Section 20.13 - Entire Agreement Section 20.14 - Survival Section 20.15 - Applicable Law Seclic-. 7C.'6 - Consents and Approvals Section 20.17 - Authority Section 20.18 - When Lease Becomes Effective Section 20.19 - Interpretation Section 20.20 - Brokers Section 20.21 - Landlord's Fees and Expenses Section 20.22 - Other Agreements Section 20.23 - Shift Clause 22 ARTICLE XXI - SECURITY AND RENT DEPOSITS Section 21.1 - Amount of Security Deposit Section 21.2 - Use and Return of Security Deposit Section 21.3 - Rent Deposit 23 ARTICLE XXII - TENANT COVENANTS, EASEMENTS Section 22.1 -Tenant Covenants Section 22.2 - Easements A. Demised Premises A-I. Legal Description of Shopping Center B. Landlord's Work C. Intentionally omitted D. Rules and Regulations E. Sign Criteria F. Tenant's Work THIS INDENTURE OF LEASE is made as of the kkday of 1- Jn / d y , 199(2, by and between the landlord named in Section I.I(O) (hereinafter referred to as die "Landlord"), and the tenant named in Section I.I(A) below (hereinafter referred to as the ("Tenant"). ARTICLE I: SRANT AND BASSr'r'FRM4 1.1 BASIC DATA: The following sets forth basic data hereinafter referred to in this Lease, and, where appropriate, constitute definitions of the terms hereinafter listed. A. TENANT: J.M.R. Foods, Inc., a Pennsylvania corporation with an address of 5012 Lenker Street, Mechanicsburg, Pennsylvania 17055 B. TRADE NAME: Little Caesar's Pizza C. SHOPPING CENTER NAME: Carlisle Marketplace Shopping Center D. DEMISED PREMISES: For the purposes of this Lease the Demised Premises is agreed to be as shown on Exhibit 'A" with approximately 1,600 square feet E. ORIGINAL TERM LENGTH: Five (5) years F. OPTION(S) & LENGTH: Two (2) optional terms of five (5) years each G. MINIMUM RENT: Year(s) 1-2 ® $1,733,33 per month, $20,800.00 annually cit, 41S1 Year(s) 1-4 @ $1,820.00 per month, $21,840.00 annually 98 0 0 Year S rg $1,883.70 ner month, $22,604.40 annually oo - n t H. ESTIMATED FIRST YEAR PRORATA CHARGES AT COMMENCEMENT OF LEASE (SUBJECT TO ADJUSTMENT OVER TERM OF THE LEASE): (i) Taxes: $152.49 per month $1,829.88 annually (ii) Common Area (including insurance): $105.14 per month $1,801.68 annually Totals $302.73 per month $3,631.56 annually Percentage of overall Taxes, Insurance and Common Area Maintenance Charges ("T.I.C. ") initially payable by Tenant to be determined in accordance with Sections 2.3 and 5.1 hereof. PERCENTAGE RENT: None 1. OPTION PERIOD RENT: MINIMUM RENT: First Option Period: Year(s) 6-7 ® $1,949.63 per month, $23,395.56 annually Year(s) 8-9 ® $2,017.87 per month, $24,214.44 annually Year 10 ® $2,088.50 per month, $25,062.00 annually Second Option Period: Year(s) 11-12 ® $2,161.60 per month, $25,939.20 annually Year(s) 13-14 ® $2,237.26 per month, $26,847.12 annually Year 15 ® $2,315.56 per month, $27,786.72 annually PERCENTAGE RENT: None K. SECURITY DEPOSIT: None L. ist MONTH RENT DEPOSIT: $2,036.06 (includes T.I.C.) M. USE CLAUSE: To be used for the sale at retail of food and beverages and other related promotional items customarily sold in other Little Caesar's establishments throughout the continental United States, provided that the primary product shall be pizza, and for no other purpose. N. GUARANTOR(S): None 0. LANDLORD: Carlis!.,, M, i xetptace Limited P.rinership, A, Ahold Real Estate Company, 333 North Main Street, West Hartford, CT 06117 r For Payments Only To' Carlisle Marketplace Limited Parhlership, c/o Ahold Real Estate Company, P.O. Box 40,000, Dept. 816, Hartford, CT 06151-0816 P. REALTOR: Wargo Properties, Inc. 1.2 CONSTRIX'170N OFD MIS D 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 sold period shall be extended to die extent of such delays. 'tenant shall have life option of canceling 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 field 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 fortis 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. 1.3 DEMISED PREMISES: The Landlord hereby leases to the Tenant and lire Tenant hereby leases from rile 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 stropping center commonly referred to as Carlisle Marketplace Shopping Center (the "Shopping Center") located in Carlisle, Pennsvhsnia and mo...-ccurately 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 pan 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 life 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 DFMISFD PREMISES: Tenant agrees to accept she Demised Premises "as is", without warranty or representation of any kind, express or implied, on the pan of landlord, provided Landlord substantially completes the Demised Premises substantially In conformity with the terms and conditions set forth on Exhibit "B" attached hereto and made a part hereof ("landlord's Work"). If 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 parrs of the Shopping Center or from changes in occupancy, actual or planned, landlord reserves the right, without Tenant's consent to (a) change die number, size, height (including additional stories) or location of buildings and common areas in die Shopping Center; (b) change or modify ingress and egress routes; and (c) add additional land or buildings or both to the Shopping Center. 1.5 TERM OF LEASE: TO HAVE AND TO HOLD the Demised Premises unto the Tenant for the term specified in Section I.I(E) hereof unless sooner terminated as provided herein, commencing on the Rent Commencement Date as set forth in Section 2.2 hereof. If tie Rent Commencement Date is other than the first day of the month, the first lease year shall be extended to include such partial month such that the first lease year shall end on the last day of [lie month in which the first anniversary date of the Rent Commencement Date occurs. The parries hereto agree, upon demand made to the other, to execute a supplemental instrument expressing the Rent Commencement Date when the Rent Commencement Dare has been determined. 1.6 OPTION TO EXTEND: Tenant shall have the option to extend the term of this Lease for an additional tern of years as set forth in Section 1.1 (F) under the same terms and conditions contained herein except that the Minimum Rent shall be as specified in Section 1.1(1). The option to extend is conditioned upon Tenant during she original or then current term (I)not having been in default more than three times during the then current term as defined in Section 15.1 of this Lease; (2) not being in default of any portion of file Lease and any appropriate grace period having expired (and there is no event or stare of facts which, with the passage of time and/or the giving (it' 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 (3) Tenant giving landlord written notice of Tenant's election to exercise file option term ar 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. 1.7 LANDLORD'S TERMINATION RIGHT: (A) Giant Food Stores, Inc. has the option to expand its store after the fifth year front the date of its store opening into an area which includes the Demised Premises ([he "Expansion Area"), which right may be exercised during the term of the Lease (or an option period thereof) gramcd herein. Notwithstanding anything to the contrary contained herein, should Giant Food Stores, Inc. actually exercise such right, landlord may terminate this Lease upon four (4) months notice and Tenant agrees to vacate the Dera:je4 Premises on or :?Jcrc the expindion of said four (4) nunuh period. -5- r (B) If Landlord has other similar space within the Shopping Center available that would accommodate llte relocation of Tenant dun ing said four (4) month period, then Tenant shall have Cite option of relocating into such space within thirty (30) days of the later to occur of (i) Tenant receiving notice from Landlord of the availability of such space, or (ii) such relocation space actually becoming available for Tenant to move in. In no event shall any such relocation delay the surrender of the existing Demised Premises beyond the end of said four (4) month period. Tenant shall have five (5) business days after receipt of Landlord's notice that relocation space is available to elect in relocate, thereafter, this relocation provision shall be null, void and of no effect whatsoever. If Tenant elects to relocate in accordance herewith, this Lease shall not terminate, but shall be amended to reflect the relocation of the Demised Premises and Landlord shall reimburse Tenant for one-half of the cost of Tenant's leasehold improvements and moving expenses, up to a combined maximum of twenty-five thousand (525,000.00) dollars, within thirty (30) days of receipt of Tenant's request therefor, accompanied by adequate proof of such expenditures, a permanent certificate of occupancy for [lie relocated Dcnhised Premises and lien waivers from Tenant's contractors. The relocation provision contained in this Section 1.7(B) shall only be effective during the original term and the visa optional term 0 :i,:s lease, and shall thereafter be null, void and of no effect whatsoever. ARTICLE II: RM 2.1 ANNUAL. MINIMUM 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 die address of Landlord as set faith for payments in Section 1.1 (0) or at such place as die Landlord shall from time to time designate in writing. The first such payment is to be made on the Rent Commencement Date, however, if llte First Montle Rent Deposit set forth in Section I.I(L) hereof has been paid by Tenant to Landlord as provided in Section 21.3 hereof, then such amount as Tenant shall have deposited will be credited by Landlord against any amounts due hereunder for Minimum Rent upon the Rent Commencement Date. Any fractional part of a month shall be prorated and payable in advance. 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 LI (1). Tenant's obligation to pay Minimum Reid is independent of all of Cite other covenants, conditions and obligations of either party to this Lease. 2.2 COMMENCEMENT OF RENT: The "Delivery of Possession" shall be the earlier of (a) the date that Tenant obtains possession of the Demised Premises from Landlord, or (b) the dale that Landlord notifies Tenant in writing that the space is substantially complete and Tenant may install its fixtures and improvements. The "Rent Commencement Date% which establishes the date from which the term of the Lease Is measured and upon which Tenant is obligated to pay Minimum Rent, shall be die earlier of (a) ninety (90) days after Delivery of Possession; or (b) the date that the Tenant first opens for b^si: ash in lite Dcnr..d Premises. "Substantially complete" as used herein means the work to be 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. 2.3 TAXES: From and after rite Rent Commencement Dale, Tenant shall pay to Landlord as Additional Rent its proportionate share, expressed as a percentage as set forth in Section 1.1 (H), of Real Estate 'faxes, 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 tern of this Lease), excluding any razes separately charged to or levied against Tenant (which Tenant shall pay 100'%) or any oilier lenanl (which Tenant shall not pay any proportion of). Notwithstanding anything to the contrary contained in Section 1.1(11) hereof, "Tenant's proportionate share" is a fraction, the numerator of which is rite gross leasable area of rite Demised Premises and the denominator of which is rite gross leasable area of the Shopping Center as of die first day of each applicable lax 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 Real. Tenant shall pay such Additional Rent applicable to Real Estatc :axes on a monthly basis, along with the monthly Minimum Rent. Initially, such monthly payments shall be as set forth in Section 1.1(11). 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, rite amount overpaid by line 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 Tenant. If Real Estate'taxes are more than Landlord's estimate, Tenant shall pay such excess within thirty (30) days of receiving a detailed statement front Landlord. Landlord, at Landlord's option, may obtain separate taxable status for the Demised Premises, and in such eves. Tenant shall pay 100% of such taxes as Additional Rent. If requested by Tenant, Landlord shall provide topics of lax bills to Tenant, Additionally, with respect to taxes: (A) RI Ifl' TO NT'FST ASSFSSM ENT's: Landlord may contest any and all Real Estate 'T'axes. The cost orally such contest shall he 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 mmnner. Tenant shill have no right to contest Real Estate Taxes or assessments without the prior written consent of Landlord. -ft. (B) REAL. ESTATE TAX: Real Estate Taxes mean: (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 Pgainst 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; (ill) any tax on the landlord's right to receive, or the receipt of, rem or Income from the Shopping Center or against Landlord's business of leasing the Shopping Center; IN) 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 tae 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 or in addition to, in whole or in part, any tax previously included within the definition of Real Estate Taxes. 2.4 COMMON AREA MAINTENANCE CHARGES: Commencing upon the Delivery of Possession and thereafter on the first of each month Tenant will pay Landlord as Additional Rent, onc-Twelfth (1/12) of Tenant's proportionate share of the annual common area operating costs, as more fully set forth in Article V hereof. 2.5 PERCENTAGE RENT: Intentior.4y -.niued. 2.6 LATE. CIIARGE: 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. 2.7 DEFINITION OF ADDITIONAL RENT: Without limiting any other provision of this Lease, it is expressly understood and agreed that 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, die Promotional Charge, together with all interest, Late Charges 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 (lie rights and remedies with respect thereto as would accrue to the Landlord for non-payment of Minimum Relit. Tenant's obligation to pay Additional Rent is independent of all of die other covenants, conditions and obligations of either party to this :.ease. ARTICLE 111: PERCENTAGE RENT 3.1 CROSS SALES REPORTING AND PERCENTAGE RENT PAYMENT: Intentionally omitted. 3.2 GROSS SALES: Intentionally omitted. 3.3 RECORD KEEPING: Intentionally omitted. 3.4 AUDIT: Intentionally Omitted. ARTICLE IV: USE OF DEMISED PREMISES 4.1 TENANT'S USE: Tenant shall use die Demised Premises solely for die 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 die 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 she Landlord. (C) The Tenant shall keep the dispiay windows of the Detnised Premises clean and shall keep the same electrically lighted during such periods of time as tie 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 [lie 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 fixlured. The Tenant shall devote the maximum possible floor area of the Demised premises it) 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 T'omul 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 -7. written notice to the Tenant with respect to such Shopping Center, a current copy of which arc attached herein as Exhibit "D', but which are subject to change at Landlord's reasonable discretion. 4.2 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 during the hours of 11:00 AM to 8:00 PM, and such other hours as a majority of die other mnants of the Shopping Center shall remain open, provided that Tenant shall not be obligated to be open for business prior to 11:00 AM or after 10:00 PM. Tenant will carry a complete stock of merchnn^I•:. maintain an arbquatt 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 governmental ordinance or law. Tenant may also close on major nationally recognized or 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 [lie hours and days of opening specified herein or be in violation of this Lease. 4.3 RADIUS OF OPERATION: Tenant, or any other person, firm or corporation which controls or is controlled by Tenant, or any franchise or licensee of any of them, shalt not open a competing or similar business, either directly or indirectly operating within a radius of one-half (hk) mile from the Shopping Center during the term of this Lease. This radius clause does not apply to businesses of Tenant currently open and in operation within said radius at the time this Lease is executed. 4.4 UTILITIES: Tenant agrees to pay for Tenant's use of all of its 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 the 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. 4.5 SIGNS: Landlord has established a uniform tenant sign criteria (see Exhibit 'E") for 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. If Tenant f. s[z;is any sign not r:eriously approved by landlord that does not nice[ 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 Cite 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 Dennised Premises, upon giving Tenant seven (7) days advance written notification. Attached hereto as Exhibit E- I is a copy of Tenant's ordinary sign specifications which 6- landlord hereby act!awledges and approves. 4.6 AFFECTING TENANT'S B ISIN SS: If Landlord leases a store in the Shopping Center to a Direct Competitor, as hereinafter defined, of Tenant and Tenant's gross income for the six (6) months after the opening of the Direct Competitor for business is demonstrably reduced by twenty percent (20%) or more from Tenant's gross income for the six (6) months prior to said Direct Competitor's 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 (70%) percent of its gross income form either lake-out or delivery pizza. However, nothing contained herein shall be deemed to prohibit any otter tenant in the Shopping Center from dealing or displaying merchandise or services which are the same or similar to those sold or displayed by Tenant hereunder, so long as such sale or display by such other tenant is incidental to its main line of business. Notwithstanding anything to the contrary contained herein, Ilse foregoing provisions shall not be applicable to (t) the premises presently demised to Giant Food Stores, Inc., Revco Drug Stores or (pi) any tenant of the Shopping Center occupying in excess of 15,000 square feel of leasable area. This section shall be null and void upon tine happening of either: (a) cessation by Tenant of the use of the Demised Premises for the purposes pertained under this Lease; or (b) a default by Tenant of any of its obligations hereunder, which is not cured within any applicable grace or cure period after written notice thereof by Landlord. The Tenant shall indemnify and hold Landlord harmless against all liability and expenses including reasonable attorney fees resulting from the Landlord granting Tenant the rights set forth under this Section 4.6. ARTICLE V: COMMON AREAS 5.1 MONHILV COMMON AREA MAINTENANCE CHARGES: Initially, Tenant's monthly contribution towards its proportionate share of annual common area operating costs shall be as set forth in Section 1.101). -8. Notwithstanding anything to lire contrary contained in Section 1.1(11) hereof, "Tenant's proportionate share" is a fraction, the numerator of which is tha gross lea:ab,c area of the ECMiaed Premises and the denominator of which is the gross leasable area of the Shopping Center from [line to time. However, Landlord may (without obligation, and in Landlord's sole and absolute discretion) allow or permit a tenant (or [enanls) within the Shopping Center to assume and discharge certain common area maintenance obligations with respect to specific portions of the Shopping Center common areas. In such event, the square footage of the space occupied by such Tenant(s) may be deducted from the foregoing denominator for purposes of calculating Tenant's proportionate share of common area operating costs (which costs shall not include those obligations assumed by said tenant(s)). Further, 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 cnst. The common area operating costs shall [hereafter 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 term of [his Lease is expiring, 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. Upon request, Landlord shall supply Tenant with copies of all bills and receipts for the common area operating costs. 5.2 L)EFINITION OF COMMON 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 [Ire Slopping 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 die cost of maintaining these areas for the benefit of the Shopping Center. 5.3 COMMON AREA OPERATING COSTS: 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 healing and air conditioning thereof), utilities and facilities serving lite Shopping Center (including off-site utilities and facilities such as retention areas and drainage facilities, all taxes, assessments, costs and other expenses related tlierelo), teal 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 die maintenance and preservation of any rights arising under any easement agreement affecting the Shopping Center, or to fulfill any obligations arising under such an easement agreement. Such costs and expenses shall likewise include (but shall not be limited to) water and sewer charges; utility system installation charges and asses,-vwivs; costs of all ror•f and other maintenance, repairs and replacements performed by the Landlord; costs of seasonal or holiday decorations; workers' compensation, public liability, rent interruption, fire insurance, extended coverage anu a;r other perils co.-gag,:, plus all endorsements and other insurance coverages deemed reasonable and necessary by Landlord, including boiler and machinery coverages; all applicable wage, unemployment, social security, and persona( property taxes and assessments; fees for required licenses and permits; supplies; reasonable depreciation of equipment used in the operation or maintenance of the common areas; and an administrative fee equal to fifteen percent (15%) of the total costs and expenses of operating, managing and maintaining llte Shopping Center. Notwithstanding anything contained herein to the contrary, in no event shall Tenant's proportionate share of common area operating costs include costs of original construction, or lite cost of major renovations to die Shopping Center or any management fee payable to Landlord or to any third-party property management company except for the fifteen percent (15%) administrative fee referenced above. 5,4 CONTROL OF COMMON AREAS: The common areas as defined in this Lease shall be under the exclusive control and management of tat Landlord who shall have the exclusive right to modify, remove, relocate and otherwise change the common areas from time to time as well as the 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 [ton-exclusive parking in designated areas and for ingress and egress without the prior consent of Landlord. ARTICLE VI: CONSTRUCTION AND ALTERATIONS 6.1 LANDLORD'S CONSTRUCTION: The construction work required to be done on file Demised Premises by Landlord prior to the Delivery of Possession shall be as set forth in Exhibit "R". Notwithstanding anything contained herein to the contrary, Landlord hereby represents and warrants that, as of the Delivery of Possession, the IIVAC, plumbing, mechanical and electrical systems asset forth in landlord's Work shall be in good working order and free of any latent defect. 6.2 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, new fixtures (including, but tint limited to, Landlord approved signage) and new equipment and to perform such other work as shall be necessary or appropriate in order to prepare lite Dentised Premises for the opening of its business in a first class condition as soon thereafter as possible bat in oo event later than ninety (90) days after Delivery of Possession of the Demised Premises. [it the event that Tenant does not open the Denhised Premises with all stock, such fixtures (including, but not limited to, landlord approved signage) and such equipment -9- necessary for the conduct of its business in a first class manner within thirty (30) days after ilia Rent Commencement Date landlord shall have the right at any time thereafter to terminate this Lease by giving Tenant written notice of such termination, whereupon Ads 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 ilia lease tern, continence any alterations or modifications without first complying with Exhibit P 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. In matters concerning changes to the external appearance of the Dcnhised Premises or that would other ilia design and/or the structural integrity of [lie 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 goad workmanlike manner in compliance with all governmental requirements, and in compliance 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. Tenant's plans are attached hereto as Exhibit I and arc hereby approved. 6.3 BUILDERS 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 ) rdvrd's mortgagee:.,. s 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. 6.4 TZ?NAN7" S IHSCIIARGE OF LIENS: Tenant shall promptly pay its contractor and materialmen for all work done upon the Demiscd Premises. Nothing in this Lease shall be construed to authorize Tenant or others dealing with Tenant, to charge the rents of die Demised Premises or the interest of Landlord in the estate of the Dcmiscd 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 wort:. All such work shall be for ilia 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 ilia 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 constitute a default by Tenant under this Lease. Landlord hereby requires Tenant and/or Tenant's contractor, to file a Stipulation Against liens in tine form attached hereto as Exhibit F-2 with ilia Office of the Prothonotary for the county in which ilia Demised Premises is located to eliminate attachment of mechanic's or matcrialmen's liens prior to initiation of any construction. ARTICLE VII: MAINTENANCE AND REPAIRS 7.1 LANDLORD'S OBLIGATIONS: Except as provided for in Article XIII, Destruction, and Article XIV, Eminent Domain, Landlord shall keep and maintain the roof, foundation and exterior walls, the cost of which shall be included in common area operating costs, except when such repairs were necessitated front Tenant's actions or that of its officers, agents, customers or employees, in which event Tenant shall reimburse Landlord for 100% of such costs upon demand. 7.2 (A) Tenant shall be responsible at its own expense for keeping me Demised Premises neat and clean and in goal 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: (1) The exterior and interior portion of all doors and door checks, door locks, emergency hardware openers, and door handles; (2) Windows, window molding, plate glass, sore fronts, glass door panels, and showcases surrounding die Der: sad Premises; (3) A!! f;umbing and sewage facilities within lite Demised Premise, including free flow to the utility owned sewer pine, 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; (5) 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 Ilia Demised Premises due to illegal entry; and (g) Maintain Tenant's sign(s) in good repair as required in Section 4.5. (B) Tenant shall contract with a qualified service company for reasonable maintenance of the heating, ventilation and air conditioning equipment and furnish landlord a copy of the contract within ten (10) days after opening and with subsequent contracts upon cancellation or expiration of the original contract. -10- (C) Tenant shall keep and maintain the Dernised 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 lite Demised Premises and all appurtenances thereto. Tenant shall be responsible for wash storage and removal through rental of commercial dunipslers. Landlord will provide locations in the Shopping Center for placement of these dunipsters. (D) If Tenant refuses or neglects to commence and to complete repairs, Landlord only after ten (10) days notice, at Landlord's option, place Tenant in default of the Lease and make said repairs and Tenant shall pay the cost thereof plus any administrative charges, as Additional Rent upon demand. 7.3 SURRENDER )F) MISFD PN M'CFS: Al the expiration of tie tenancy, Tenant shall peaceably surrender the Demised Premises in the same condition as received by it on die Delivery of Possession, reasonable wear and tear excepted. All keys to the Dernised Premises and lock combinations to any safes or vaults which may be in lire 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 die 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 Demiscd 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 llte Demised Premises prior to or during the term hereof at the cost of the Tenant may be removed by llte Tenant from the Demised Premises upon the termination of this Lease if, but only if, the Tenant is not then in default hereunder. Tenant shall repair any and :11 -u.mage caused le %r 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 Vlll: INSURANCE AND INDEMNITY 8.1 CASUALTY INS RAN : The Tenant also agrees that it shall continuously keep its fixtures, merchandise, equipment and other personal property from time to lime located in, on or about the Demised Premises, and all leasehold improvements to the Demised Premises insured by reputable, duly licensed insurance companies against loss or damage by fire with the usual extended coverage endorsements in amounts at least equal to me full replacement cost thereof. During the term of this Lease, the proceeds from any such policy of insurance shall be used for line repair or replacement of the fixtures and equipment so insured. Prior to the Delivery of Possession, and no less often than annually thereafter, and at any other lime upon the request of ahe Landlord, the Tenant shall furnish to the Landlord evidence of such continuous insurance coverage satisfactory to [lie 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. 8.2 WAIVER OF SUiIROGAT ION: Insofar as and to the extent that lire following provision may be effective without invalidating or making it impossible t0 secure insurance coverage obtainable front responsible insurance companies doing business in die Commonwealth of Pennsylvania (every 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 thent, 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 lire willful acts of either of lite parties hereto. 8.3 INCREASE IN FIRE INSURANCE PRFMI iMS: Tenant agrees not to keep, use, sell or offer for sale, in or upon the Demised Premises, any anicles or goods which may be prohibited by the standard form of fire insurance policy or will otherwise Increase the rate of fire or other Insua:ca 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 lite use of the Demised Premises by Tenant, whether or not Landlord has consented to such use. 8.4 LIABILITY INSURANU: 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 51,000,000.00 per occurrence, with an annual aggregate of not less than $2.000,M0.00. The limits of coverage shall be increased from time to little upon landlord's request, in accordance with shopping center management practices then prevailing in the area of the Shopping Center. The policy shall be in form approved by Landlord, shall name Landlord (and such other persons as are in privily 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. 8.5 RENTAL INTERRUPTION INS IRAN .R: Landlord may, In Landlord's sole discretion, maintain a policy of rental interruption insurance, the cost of which shall be part of common area operating costs. 8.6 INDEMNIFICATION OF LANDLORD: To the extent permitted by law, 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 tine 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. 8.7 PLATE GLASS: Tenant shall replace at ih own expense any and all plate and other glass in and about the Demised Premises damaged or broken from any cause whatsoever. 8.8 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. ARTICLE IX: SUBORDINATION, NOTICE, ESTOPPEL. AND ATTORNMENT 9.1 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 or Landlord existing and to exist, aril .:nu, and amounts pa able to it under:he 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 easement affecting the Dernised 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, replacements 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, easement or sale and leaseback as shall be reasonably requested by [lie 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 of receipt, [lien, Tenant hereby irrevocably appoints the Landlord as its atiomey-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 tie contrary, in [lie event Cite 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 [fiat 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 dale of said mortgage or deed of trust. 9.2 NOTICE TO LANDLORD: The Landlord shall in no event be in default in lite performance of any of [lie Landlord's obligations hereunder unless and until the Landlord shall have failed to perform such obligations within thirty (30) days, or such additional lime 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, die Tenant shall not assert any right to deduct the cost of repairs or any monetary claim against the 1 andlord from rent Uxreafter due anti n?vable, but shall look solely to die Landlord for satisfaction of such 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. 9.3 ESTOPPEL CERTIFICATE: Tenant agrees, at any time, and from time to lime, upon not less than tell (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement 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, Ihat the same is in full force and effect as modified and staling the modifications); stating the actual commencement and expiration dates of lite Lease; stating the dates to which rem, and other charges, if any, have been paid, stating that the Demised Premises have been completed on or before the date of such certificate and -12- 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; slating whether or not there exists any default by either parry in the performance of any covenant, agreement, term, provision or condition contained in this Lease, and, if so, specifying each such default of which lire signer may have knowledge and lire claims or offsets, if any, claimed by the Tenant; and any other slate of facts which Landlord or such other designated parties may reasonably require; 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 prospective mortgagee of any mortgage affecting the Demised Premises or the Stropping Center. If Tenant does not deliver such statement to Landlord within such ten (10) day period, Landlord, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following facts: (f) that the terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (II) dial this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii) that not more than one mouth'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 Cite terms of which Tenant will agree to give prompt written notice to any snnh encumbrance holder in tine 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 encumbrance 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. 9.4 ATI'ORNMENT: 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 die mortgaged premises in foreclosure whereby Tenant anoms to such successor in interest. 9.5 ASSIGNMENT OF RENTS: With reference to any assignment by tine Landlord of the Landlord's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to [lie holder of any mortgage on the Demised Premises, the Tenant agrees: (A) that the execution thereof by the I..vllrrd, and the accrgfance 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 otherwise 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 bolder. ARTICLE X: ASSIGNMENT AND SUBLETTING 10.1 CONSENT RE.O BRE 1: Tenant shall not voluntarily or Involuntarily 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 pan 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 10. 1, the Tenant shall furnish such information regarding the prospective assignee or sublessee as the landlord may require, including without limitation information regarding financial ability and business experience relating to the uses pe:milled 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 nu.ration 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 from die business operations of the Tenant in the Demised Premises to a person or entity other than [lie Tenant, or otherwise having substantially the same effect, shall be treated for all purposes as an assignment of this Lease and shall be governed by Ilse provisions of this Section 10.1. In the event that Tenant receives a bona ride written offer from a third parry (other than an Approved Assignee, as hereinafter defined) for the sublease or assignment of the Demised Premises, Tenant shall forthwith notify Landlord in writing, attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon terns of said offer, whereupon landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option, cancel and terminate this Lease, 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 (all) 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 in occupy tie Demiscd Premises, landlord may collect rent from the person or persons then or (hereafter occupying the Demised Premises and apply the net amount collected to lite real reserved -U. herein, but no such collection shall be deemed a waiver of this Article X, or the acceptance as tenant of any such purported assignee, subtenant or occupant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable for lire obligations of the Tenant hereunder, including, without limitation, the obligation to pay the rents and other amounts provided for under this Lease, and shall not be released from performing any of the terms, covenants or conditions hereof. If Tenant is a corporation or partnership, any sale, transfer, pledge, leveraged buy out or other disposition of twenty-five percent (25%) 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, 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 Guarantors or to the Tenant's franchisor, Little Caesar's Enterprises, Inc. ("LCE") or to any approved franchisee of LCE (individually and collectively, each an "Approved Assignee"), provided that Tenant provides Landlord with notice of such assignment, including copies of all documents related therelo, within ten (1:1) d„ys of such assigmacrt. Notwithirnding any such assignment, 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, [lie 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 greater of (a) the annual Minimum Rent specified in Section 1.1 (G) or l.1 (J) (whichever is applicable) of this Lease or (b) the annual Minimum Rent payable pursuant to such assignment or sublease. 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 XI: WAS'rE COVERNMEN'f'AL AND INSURANCE IcEUUIKemrrrrb Arvu HAZARDOUS SUBSTANCES 11.1 WASTE OR 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 die 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 properties. 11.2 INSURANCE REQUIREMENTS: Tenant shall, at its sole cost and expense, comply with all of fire requirements of any insurance carrier for the Shopping Center, now in force or which may hereafter become applicable. 11.3 HAZARDOUS 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 hereunder will at all times comply with mid conform to all present and future laws, statutes, ordinances, rules and regulations of any federal, state or local governmental, quasi-governmental or regulatory authorities (tire "Laws"), including, but not limited to, environmental laws, rules and regulations which relate to the 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 n,` p ity kind, and uny 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 (as 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 tiny 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, sbareholders, employees, agents, partners, and their respective heirs, successors and assigns (collectively *Indemnified Panics") 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, admipistraive costs, costs of appeals, consultant's and expert's fees and 14- 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 [he 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 11.3, 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 11.3. 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 Demised Premises. Landlord shall conduct and complete all investigations, studies, sampling and testing, and all removal and other actions necessary to cleanup and remove all hazardnrs materials on, under, front or affecting the Demised 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 use of the Demised Premises then the other provisions of this Section 11.3 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 11.3. Landlord may require that Tenant deliver to Landlord concurrent with Tenant's vacating llte Demised Premises at Tenant's expense, a certified s:aicment by licensed cagineers, in form and substance satisfactory to landlord, staling that Tenant, Tenant's Work and any alterations thereto and Tenant's use of die 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 outer nature, at or affecting the Demised Premises and whether, to the best of Tenant's knowledge, such an occurrence has otherwise occurred nl or affected the Demised Premises. 11.4 GOVERNMENT PERMITS: Tenant shall, in performing its obligations hereunder and at its own expense, comply with all applicable present and future laws, ordinances, rules, and regulations 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 authorizations now or hereafter necessary, lawful and proper in order to permit Tenant to use the Demised Premises for the purposes set fords in Section 1.1 M. Copies of all such permits, licenses, certificates and authorizations shall be delivered to Landlord on a timely basis. 11.5 SURVIVAL: All of the terms, covenants, warranties and indemnifications contained in this Section shall survive the termination of this Lease. ARTICLE XII: ADVERTISING AND PROMOTIONAL PROGRAM 12.1 ADVERTISING AND PROMOTIONAL. PROGRAM: Intentionally Omitted. ARTICLE XIII: DESTRUCTION 13.1 TOTAL OR PARTIAL. DESTRUCTION: If the Demised Premises shall be partially or totally destroyed by fire or otter casualty insurable under full str h.,e fire and extended risk insurarre, so as to become partially or totally untenantable, [lie same (unless Landlord shall elect not to rebuild as hereinafter provided) shall be repaired and restored by and at llte cost of Landlord, to the extent originally constructed by Landlord (consistent, however, with zoning laws and building tales 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 Minimum and Additional Rem 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 (113) 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 arc damaged or destroyed), or (ii) any lender of Landlord does not permit use of insurance proceeds to repair and restore the building, or (iii) die unexpired portion of the term of this Lease shall be eighteen (18) months or less at llte time of the damage, then Landlord may elect not to repair or rebuild die Demised Premises, or so hutch 111=01 15- 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 reconstruction 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 fu;l fora and effect. Notwithstanding anything to tile contrary contained herein, Landlord she:] r,.:: 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. In the event that Landlord shall exercise the right given heretofore to terminate, (lien this Lease and she terms hereof shall cease as of die 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 and Additional Rent 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 die equivalent of such Minimum and Additional 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 XIII. 13.2 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 alter 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. 13.3 TENANT'S RESTORATION: Unless this Lease is terminated as provided in Section 13.1 or Section 13.2 of this ARTICLE XIII, 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 XIII to substantially the condition which such portions of the Dernised Premises were in at the time of such casualty; (ii) equip the Demised Premises with trade fixtures and all personal property necessary or proper for the operation of the Tenant's business; and (iii) open for business in the Demised Premises as soon thereafter as possible. 13,4 SI RSTANTIAllDAMAGE: The term "substantially damaged or destroyed", as used in this ARTICLE XIII, 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. ARTICLE XIV: EMINENT DOMAIN 14.1 TAKING BY EMINENT DOMAIN CONDEMNATION: ;n the event of any taking by eminent domain, condemnation or conveyance in lieu thereof ruraiaafter a'Taking ') of the Demise,, 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 pan 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 die right to clainn 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 'faking, any cost which Tenant may incur in removing Tenant's property from the Dernised 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 mortgagee(s). 14.2 @ SfORAT ION OF DEMISED PREMISES: In the event that any part of the Demised Premises shall be subject to a Taking, and should this Lease not be terminated in accordance with the foregoing provision, [lie Landlord will, within a reasonable time after such Taking, 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 XV: nc°"rrr.T OF TENANT IS.I I)EFAULT: 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 notice of such failure ut make payment when due, any payment of Minimum Rent, Additional Rent or other monetary auto']"[ payable by Tenant hereunder or to timely discharge any other monetary obligation (it being understood that Tenant's obligation to pay :my rental herein is an independent covenant and that Tenant will pay such rental without offset or deduction); 16• (B) Tenant's failure to perform any other of the terms, conditions or covenants of this Lease to be observed or perforated by Tenant, which failure continues for ten (10) business days after written notice thereof, provided, however that such right to written notice shall be limited to one (1) time during each calendar year of the terra of this Lease; however, if such term or condition is of such a nature that it cannot reasonably be cured within ten (10) business days , and Tenant is making goes (alai efforts to cure s3;d default, then Tenant may have up to thirty (30) days to cure such default; (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 die 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; (E) if Tenant shall default in the timely payment of Minimum Rent, Additional Rent, or other charge payable by Tenant hereunder or to timely discharge any other monetary obligation three times in any Iwelve month period, notwithstanding the fact that any such default shall have been cured; or (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, shall constitute an immediate termination of Tenant's right to possession of the Demised Premises. The notice or 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. [Demised f any Event of Default occurs, the Landlord, besides all such other rights or remedies it may have under this r in law or in equity, shall have the right, without demand or notice (and Tenant hereby expressly waives any to quit possession of the Demised Premises) to enter the Demised Premises and take possession thereof and of anent improvements thereon and may remo-e all persons and property from the Demised Premises by force, ry action, or otherwise, and such property may be removed ana stored in a public warehouse or elsewhere at t of and for the account of Tenant, all without service of notice or resort to legal process, and without being guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby and without ce to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Tenant that Tenant shall have no further claim under this Lease and shall quit and deliver up the possession of the d Premises, including permanent improvements to the Demised Premises, when this Lease terminates by on of its term or in any other manner provided for herein. 15.2 RF.MDI¢_S: 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 retelling 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 tlo so and shall be entitled to rent or re-rent any other space within die Shopping Center prior to releuing the Demised Premises and lake into account in connection with any retelling of the Demised Premises all relevant factors which would be taken into account by a sophisticated developer in securing a replacement tenant for die 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 [lie Shopping Center be deemed to be a failure to mitigate said damages. Upon each such retelling 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 retelling 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 relelling during any month be less than that to be paid during dial month by Tenant hereunder, Tenant shall be liable for die payment of such deficiency to Landlord. Such deficiency shall be calculated and become payable monthly in the same manner as Minimum Real, 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 (in its part to terminate this Lease or to accept a surrender [hereof unless a written notice of such intention be given to Tenant. Notwithstanding any such reletling without termination, Landlord may at any time thereafter elect to terminate [his 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 17- breach, including the cost of recovering [he Denhhcd Premises, mai [lie amnun, of rent and charges equivalent to rent reserved in this Lease for the remainder of the stated terns, and all actual and reasonable attorney's recs. In determining tie rent which would be payable toy 'tenant hereunder subsequent in default, the annual rent for each year of the unexpired tern shall be equal m the Mlnifnntn Rent Act forth lit Section I.I(O) (or if default occurs during any option period Imreto, as set forth lit Section I.I(J)), and the Additional Reun specified in Section 15. TO INDUCE TIIE LANDLORD TO ENTER INTO TIIIS LEASE, (01'11E TENANT CONFIRMS AND AGREES THAT THIS TRANSACTION IS A COMMERCIAL. AND NOT A CONSUMER TRANSACTION, (11) THE TENANT HEREBY WAIVES, TO THE FULL EXTENT PERMI-ITIM BY LAW, ANY RIGI IT TO TRIAL BY JURY IN ANY ACTION, PROCEEDINO Olt COUNTERCLAIM BROUGHT BY TIIE LANDLORD AGAINST THE 'T'ENANT ON ANY MA'TT'ERS WIIATSoEVHR ARISING OUT 01: OR IN ANY WAY CONNECTED WITH THIS LEASE, TIIE REI-n'rIONSIIIP OP'f111i IANDLORD AND THE TENANT, TIIE TENANT'S USE OR OCCUPANCY OF TIIH DHMISED PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND (111) TIIE TENANT AORRES NOTT'O INTIiRPOSH ANY COUNTERCLAIM OF WHATEVER NATURE. OR DESCRIPTION IN ANY PROCEEDING COMMENCED BY TIIE LANDLORD FOR NONPAYMENTOFMINIMUM RENT, ADDITIONAL RENT Olt ANY OTHER AMOUNT DUE I IEREUNDER, PROVIDED THAT SUCII CLAIM IS NOT REQUIRED BY LAW TO III? BROUGHT AS A COUNTERCLAIM TO AVOID FORFEITURE OP TUT CLAIM AND TIIE FOREOOINO 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. 15.3 ADDITIONAL RENT: For the purposes of this ARTICLE X V, It shall be deemed that Additional Rent for any period after any defauh and entry by [he landlord would have been at a monthly rate thereafter equal to the average monthly Additional Rent which the Tenant was obligated to pay to lie landlord under [his Lease either: (i) from the Rent Commencement Date hereof to tine date of such default; or (Ill during the last three (3) years prior to the date of such default - whichever Is greater. 15.4 GUARANTORS: If this Lease Ah.ull 9e guaranteed oil lnhulf of file Tunant, all of the provisions of this AR'T'ICLE XV with respect to bankn Lucy of the'renanL etc., shall be deemed to read "the Tenant or the Guarantor hereof." 15.5 UANKRUPT'CY OR OTIIER DRFAUL'L': Tenant agrees that this Lease is a lease of "real property in a shopping center" and [lint a dchlor in possession anal/or trustee lit bankruptcy acting pursuant to the provisions of life revised bankruptcy code, may ossune this Lease only if, lit addition to such other conditions of this Lease and of applicable law, sold debtor lit possession/lntsice 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 ntix, alteration lit the size of the Demised Premises, change lit advertising program, change fn method of operation or change of Tenant's trade nano by said debtor in possessinu/Irus[ce shall be dccrucd to be a material disruption in tine tenant mix and balance of the Shopping Center. landlord shall have at all tines a valid lien front all rentals and other stuns of money imoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture and other personal property of Tenant showed on line Dcmhcd Premises, and such property shall not he removed therefronn without the conscm of Landlord until all arrearages lit rent as well as any and all other sums of money then due to Landlord hereunder shall first have been pald and discharged, Upon [he occurrence of any Event of Default by Tenant, landlord nay, ht addition uo any ether remedies provided herein or by law ter equity, enter upon [he Demised Premises anti take possession of any and all goods, wares, equipment, fixtures, furniture and other personal property of 'tenant situated on the minised Premises wllhon 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 tie pra:eeds thereof less any anti all expenses connected with the taking of possession and sale of life propcr[y, as a credit against any soda due by Tenant m iasdlord. Any surplus shall be paid to Tenant, and Tenant agrees to pay any deficiency fur[hwlth. Alternatively, the lien hereby granted may be foreclosed in the manner and form provided by law for foreclusme 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 therein. Tenant will execute upon landlord's request a financing statement and security agreement evidencing lauullonl's security Interest In Tenam's personal property and warrants to Landlord that [here are no prior liens or security hucresus on said personal properties. Notwithstanding anything herein contained to life contrary. Tenanl may place liens of any furniture, trade fixture or appliance installed by Tenant. Landlord hereby waives any lien or right lit null in such items. Landlord agrees, as fully be reasonably required by any lending institution, to execute such Additional lien waivers ter other documents to evidence its waiver of lien. Any liens permitted hereby slmll 411ACII only against the pc[sonal property of Tenam and shall not attach to the real estate or oily personal property of Landlord. Attached hereon as Exhibit "II" Is a copy of life Tenant's lender's standard Landlord Waiver and Consent Agicaocnt which the landlord agrees in complete, execute and return to the Tenant simultaneously with its execution of this (case; provided that 'T'enant has Rrst provided landlord with an equipment list to attach as an exhibit therein. In addition it) other remedies available under this Lease, ht the event of an occurrence of an Event of Default or, in the event ill it threatened bench by Tenant of any of the covenants or provisions hereof, Landlord shall have fire right ml injunction and the right ter invoke oily remedy aiiowed by law or in equity as if re-entry, summary pmcccd llis and utbrf remcdles went not herein provided for. Mention in this Lease of any particular remedy shall [lilt preclude Landluul from fifty other remedy, at law or in equity. Tenant hereby expressly waives any and all rights of redemption gunned by or under fifty pnescm ter fulure laws, including possession pursuant to §504 of tine Landlord and Tenant Act of 1451, In life event 'T'enant is evicted or dispossessed for any cause, or in the even[ Landlord obtains IR. Iossession 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 die 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 (1) Landlord has repossessed tie Demised Premises, (11) the service of notice of termination, (iii) the commencement of a suit, or (iv) final judgement for possession of die Demised Premises, Landlord may receive 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 ibis 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, Additional Rent and all other charges accruing hereunder. 15.6 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 mach 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 (S.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 dale 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. ARTICLE XVI: ACCESS BY LAN t LORD 16.1 RIGHT OF ENTRY: Landlord or Landlord's agents shall have the right to enter [lie 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 Ilia 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, [lie Landlord may (but shall not be required so [o) 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 [lie 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 Ilse 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 XV 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 lice Demised Premises the usual signage for space rental. Nothing herein contained, however, shall be deemed or construed 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 XVII: TENANT'S PROPERTY 17.1 ']'AXES ON LEASEIIOL.II: Tenant shall be responsible for, and shall pay before delinquency, all municipal, county, or state taxes assessed during die term of this Lease against any leasehold interest 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. 17.2 LOSS AND DAMAGE: The Tenant agrees to use and occupy the Demised Premises and to use such other portions of the Shopping Center as it is herein given die right to use at its own risk; and that tie Landlord shall have no responsibility or liability for any loss of or damage m 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 bite whole of die term hexof, a.hd any earlier p.iial that Tenant may enter the Demised Premises. The Tenant 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 loss or damage resulting to the Tenant to 19- those claiming by, through or undt: Ilia Termnt, of iii or their prol.,.ny, from the bursting, stopping or leaking of water, gas, sprinkler, sewer or steam pipes. Any such waiver of liability of the Landlord by the Tenant shall not apply in the event any Injury, loss or damage was proximately caused by the negligent acts or omissions or intentional acts of the Landlord, its agents, representatives or employees. 17.3 NOTICE BY TENANT: Tetanal shall give inunendiale notice to Landlord in case of fire or accidents, or damage to or of defects in the Demised Pretnlses or in the building of which the Demised Premises are a part. ARTICLE XVIII: 11(OL.DIN . OV 'R cnrrFCCORc 18.1 HOLDING OVER: Any holding over by ilia Tenant after the expiration of the term of this Lease shall be treated as a tenancy at sufferance at one mat nne-hilf (I 'A) times the Minimum Rent payable immediately before said expiration of the Lease (and If varying rates are specified herein, at one and one-half (I 'A) times ilia highest such rate) plus the Additional Rent and other charges specified herein, prorated on a daily basis, and shall otherwise be on the terms and conditions set forth lit this Lease, so far as applicable. 18.2 SUCCESSORS AND ASSIGN : 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 those Instances lit which the landlord may later give consent to a particular assignment as required by the provisions of ARTICLE X hereof. AR'111CLE XIX: QUIET ENJOYMENT 19.1 LANDLORD'S ' )VENAMI: The Tenant, subject to the terms and provisions of this Lease, on payment of the rent and observing, kceping Aix) performing all of the terms and provisions of this Lease on its pan 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 Mal this covenant sold any and all other covenants of the Landlord contained in this Lease shall be binding upon ilia Landlord slid the landlord's successors only with respect to breaches occurring during rite Landlord's and die Landlord's successors' respective ownership of the landlord's interest hereunder. It Is further understood And agreed that ilia landlord shall In no event be liable for failure to perform any obligation under this Lease ht the event the Iandlord 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 dlllger[cc to obtain supplies, pals, or cnmployeex necessary to furnish such services, or because of war or other emergency, or for any cause beyond ilia Landlord s reasonable control, or for any cause due to any act or neglect of ilia Tenant or its servants, agents, employees, licensees, or any person claiming by, through or under the Tenant, or any terininntiun for any reason of the landlord's occupancy of die premises from which any service or work is being supplied by ilia Landlord, and in no event shall the Landlord ever be liable to the Tenant for any indirect or consequential damages. ARTICLE XX: MISCELLANEOUS 20.1 WAIMO : 'Ue 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 die same or any other term, covenant or condition herein coninined. No covcnaut, term or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be lit writing. 211,2 ACCORD AND SATISFACTION: No payment by Tenant or receipt by landlord of a lesser aniount than shall he due hereunder, shall be deemed to be other than a payment on account nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be given any effect or be deemed an accord mid satisfaction, and Landlord may accept such checks without prejudice to any other rights or remedies which the Landlord may have. 20.3 NO PAR'INERSIIIP: 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 venturer or a member of a joint enterprise with Tenant. 20.4 FORCE MAJEUItE: In die event that either party hereto shall be delayed or hindered in or prevented from lite 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 [lie party delayed in performing work or doing acts required under the terms of this [.ease, then ilia time allowed for performance of such act shall be extended by a period equivalent to [lie period of such delay. The provisions of this Section 20.4 shall not operate to excuse Tenant from the prompt payment of Minimum Rent, Additional Rent, or any other payments required by the terms of this Lease. 20.5 LANDLORD'S LIABILITY: If Landlord shall fail to perform any covenant, term or condition of this Lease upon Landlord's par[ it) to performed, Tenant may not terminate the Lease, and Tenant's sole remedies shall be -20- money damages (except as set forth in Section 20.16), 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 suchjudgement and levy thereon against the right, title and interest of Landlord in the Shopping Center as the sane 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, i! Is specifically understood and agreed that there shall be no personal liability for any deficiency or otherwise on lire 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. :•n6 mbject to the p!;?, rights of ehy 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 Landlord's right, title and interest in the Demised Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 20.6 N(MCES AND PAYMENTS: Any notice by Tenant to Landlord must be served by certified mail, postage prepaid, or national overnight delivery service, addressed to Landlord at the place designated for the delivery of correspondence in Section 1.1 (O), with copies to: Ahold Real E=;lc. Company, 333 North Main Street, West Hartford, CT, 06117, Attention: Executive Vice President - Leasing, 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, or national overnight delivery service addressed to Tenant at the Demised Premises, with copies to Scott K. Liles, P.C., 3000 Town Center, Suite 2690, Southfield, Michigan 48075, 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 20.6. 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 at the address set forth in Section 1.1 (O) for payments. 20.7 FINANCIAL STATEMENT : 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 !Ire 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. 20.8 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. 20.9 CAPTIONS AND SECTION NUMBERS: The captions, section numbers, article numbers, and headings appearing in this Lease are insened 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. 20.10 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. 20.11 PARTIAL. INVALIDITY: If any term, covenant, or condition of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease or the application of such term, covenant, or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 20.12 RECORDING: 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 undr• 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. 20.13 ENTIRE AGREEMENT: The Lease and We exhibits and riders, if any, set forth all ire covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning die Demised Premises and there arc no covenants, promises, agreements, conditions or understandings, either oral or written, between ihcnr other than as herein set forth. All prior communications, negotiations, arrangements, representations, agreements and understandings, whether oral, written or both, between the parties hereto, and their representatives, arc merged herein and extinguished, this Lease superseding and canceling 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 -21- 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 provisions of this Lease the provision contained in such rider shall supersede said provision set forth herein. Tenant hereby acknowledges that (a) except as otherwise expressly provided herein, this Lease contains no restrictive covenants or exclusives in favor of Tenant; (b) this Lease shall not be deemed or interpreted to contain, by implicatl3n 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 Stropping Center during the term of this Lease or any part r!,rrrof; (c) before ra'ering into this Lease the Tenant has made its own observations, studies, determinations and projections with respect to the Tenant's business in the Dcmised Premises and all other factors relevant to the Tenant's decision to enter into this Lease, including, without limitation, competition, market size, sales volume, profitability and general, so-called 'demographics" -- both present and prospective; and (d) neither the Tenant nor any representative of tie Tenant has relied upon any representation by (or any "conversation" with) die Landlord or any 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. 20.14 SURVIVAL.: 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. 20.15 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. 20.16 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. 20.17 AUTHORITY: In the event Tenant and/or lire 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 tire execution of this Lease and/or the Gurranly, rs sgiitcable, has beer, :uly authorized. 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. 20.18 WIIFN 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, anti enforceable in accordance with the terms hereof. 20.19 LNTF.RPRETATION: Both parties have read this Lease and had the opportunity to employ legal counsel and negotiate changes to die 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. 20.20 BROKERS: Tenant represents and warrants to Landlord that no broker or agent negotiated or was instrumental in negotiating of 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 Ili: entitled in a commission or conhpe,satinn in connection will, 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 -22- or incurred by landlord resulting from any claims asserted against Landlord by brokers or agents claiming through Tenant. 20.21 LANDLORD'S FEES AND XP NSFC; Unless prohibited by applicable law, the Tenant agrees to pay to rite 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 Landlord and Tenant, die prevailing party shall be entitled to reimbursement of reasonable legal fees by the other party. 20.22 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. 20.23 SHIFT CLAUS .: 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 Rent Commencement Dale or during the term of this Lease, to shift the location of the Dentsed Premises within the Shopping Center. In the event that the Landlord shall elect to exercise the foregoing privilege, wriucn notice thereof shall be given to the Tenant, in which case the parties shall execute a supplemental Instrument allowing such shift in location of the Demised Premises. Tenant shall move to such relocated premises (I) Immediately, in file event that Landlord's notice is given prior to the Rent Commencement Dale; 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 Rent Commencement Date. Landlord shall reimburse Tenant for all reasonable moving costs incurred by Tenant in relocating as contemplated by this Section 20.23. 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 Stropping Censer lire Demised Premises will be relocated; (B) the new premises shall not be smaller than the Demised Premises; (C) The rent in the new premises shall be ideni'ral to that In •r Demiscd Prem;ses (not computed on a per square foot basis, but, rather, computed on a dollar basis); (D) Landlord shall pay for all reasonable costs of relocation; and (E) Tenant shall not be unable to operate its 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 its option hereunder. In such event, this Lease will terminate sixty (60) days after notice by Tenant of termination. 20.24 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 Demised 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, as may be reasonably 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 Tenant and shall not attach to the real estate or any personal property of Landlord. Attached hereto as Exhibit "if" is a copy of die 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; provided that Tenant has first provided Landlord with an equipment list to attach as an exhibit thereto. ARTICLE XXI: SECURITY AND RENT DEPOSITS 21.1 AMOUNT OF SECURITY DEPOSIT: Intentionally omitted. 21.2 USE AND RETURN OF SECURITY DEPOSIT: Intentionally omitted. 21.3 RENT DEPOSIT: Tenant, contemporaneously with the execution of this Lease has deposited with Landlord tine sum set forth in Section 1.1 (L) to be held and applied to tie first month's rent due under this Lease. ARTICLE XXII: TENANT COVENANTS. EASEMENTS 22.t TENANT COVENANTS: Notwithstanding anything to the contrary contained herein, this Lease is subject to and made on rile understanding that Landlord has granted and/or may or will grant certain restrictions and exclusive use covenants to other tenants of the Shopping Center (herein the 'Tenant Covenants"). Tenant acknowledges that Tenar)t'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 emitting Landlord to cancel this Lease or enjoin Tenant front violating such Tenant covenants, or exercise any of ire remedies stated in Article XV hereof and any other remedies available under the 1_w of tie Comm-w,.nrealdh of Penr-:v,nia. Nothing contained in this Section 22.1 shall be construed to permit Tenant to expand the allowed uses set forth in Section 1.1 (M) hereof. -23- 22.2 EASE HEM: The Shopping Center is and/or may be encumbered and/or beneE(ted from time to time by certain easements, development and operating covr, nrts, and simile, +f•e2ments. 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 LANDLORD: CARLISLE MARKETPLACE LIMITED PARTNERSHIP BY: Carlisle Corp., its general partner 1 irYA By' UU Its.. TENANT: J.M.R. FOODS, INC. I/a LITTLE CAESAR'S PIZZA By:.:Z rV Its: V t 0101•PnIA.LSE) 2MM6 o:srya) -24- DC %,reoP 7xlllF' ALL THAT CERTAIN tract of land situate along the eastern line of South Spring Garden Street, in the Second Ward of the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described in accordance with a Final Subdivision Plan for Seven Gables Estates and Ahold Real Estate Company, by J. Michael Brill 6 Associates, Inc., Consulting Engineers, dated July 8, 1994, revised December 2, 1994 and recorded in Subdivision Plan Book 69, Page 124, as follows: BEGINNING at a rebar on the eastern line of South Spring Garden Street, (Township Route T-516), at corner of lands now or formerly of W. C. Wertz; thence by the eastern line of South Spring Garden Street, North nineteen (19) degrees fifty-two (52) minutes sixteen (16) seconds East, a distance of 672.99 feet to a point on the southerly line of Samuels Drive; thence by the said Samuels Drive, by a curve to the right having a radius of 25.00 feet, an arc length of 36.91 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, 395.59 feet to a point; thence by a curve to the right having a radius of 190 feet, an arc length of 97.13 feet to a point; thence by the same, by a curve to the left, having a radius of 310 feet, an arc length of 158.47 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, a distance of 96.67 feet to a point at corner of Lot 3 ;n the herelInabove mentioned Plan of Lots; thence by the said Lot 3, South fourteen (14) degrees twenty-one (21) minutes thirty-one (31) seconds West, a distance of 566.72 feet to a point; thence by the same, South seventy-three (73) degrees thirty-three (33) minutes forty-three (43) seconds West, a distance of 110.80 feet to a point on line of lands now or formerly of Jeffrey S. Smith; thence by lands now or formerly of Jeffery S. Smith and along lands now or formerly of W. C. Wertz, North seventy-five (75) degrees fifty-five (55) minutes forty (40) seconds West, a distance of 731.16 feet,to a rebar (found), the point and place of BEGINNING. BEING Lot 12 as shown on said plan. TOGETHER WITH rights, easements, covenants, and restrictions contained in a Declaration of Covenants, Restrictions and Easements between Seven Cables Estates and Carlisle Marketplace Limited Partnership, dated March 24, 1995 and recorded March 24, 1995 in Misc. Book 493, Page 120. LANDLORD'S WORK Landlord's Work is limited to the work described herein, all work not classified as Landlord's Work is Tenant's Work. Storefront 1. Aluminum and glass door single acting 3'-0" X 7'-0". 2. Aluminum storefront framing with I' insulated clear glass to 10'-0" above the floor line, or as required by local code. 3. Lower panel glass and glass within 5'-0" of door will be tempered. Interior Finishes 1. Demising partitions: 3-5/8" metal studs at 16" o.c. with 5/8" fire code gypsum board, painted with one (1) coal of primer, ready for Tenant's paint. Interior partition dividing stock and sales area: 3.5/8" studs at 16" o.c. with 'h" gypsum board, painted with one (1) coal of primer, ready for Tenant's paint. Ifollow core wood door with hardware shall be provided in drywall partition between sale and stock areas. 2. 4' Concrete floor, troweled smooth (no finish flooring materials). 3. Vinyl composition rile In restroom. 4. Standard duty, smooth and washable to meet all applicable Health Department requirements, 2' x 2' in customer lobby and 2' x 4' in the remainder of the Demised Premises, white suspended acoustical ceiling tile and white metal grid at 10'-0" A.F.F. with an 8'-0" A.F.F. ceiling height in restroom In accordance with Tenant's plans and specifications attached hereto as Exhibit 1. 5. One 3'-0" X 6'-8" hollow metal insulated door (painted) and frame at rear, with panic hardware. Resiroom I. Complete with fixtures, including water closet, lavatory, toilet tissue holder, soap and paper dispensers, light fixtures, mirror and exhaust fan per local code and the ADA. 2. One pre-finished 3'-0" X 6'-8" hollow core wood door with a privacy latch and self closure. 3. Complete with handicap accessible fixtures and accessories including grab bar at toilet. 4. Restroom walls of 'h" gypsum wallboard, painted with one (1) cost of primer, ready for Tenant to paint. 5. Water service to tenant space restroom (3/4"). 6. One dual light/fan. HVAC 1. HVAC system complete with one (1) manual control accustat thermostat and distribution ducts and diffusers throughout sales and stock area with all main and secondary runs of ductwork. 2. Size of system to be seven and oiv ha, 1' (7 %) Ions Electrical I. 3-phase, 4 wire, 208/240 volt, 200 amp, three-phase electrical service with 42 breaker panel, including breakers and volt main di.".connect localf,accordance with F :hibit I. 2. 2 X 4 fluorescent fixtures (one per 100SF) with prismatic acrylic lens in accordance with Exhibit 1. 3. Three (3) 4' fluorescent strip fixtures in stock area. 4. One duplex outlet every 20'-0" or as code requires. 5. One 20 amp sign circuit to canopy. 6. Battery powered exit lights per code. 7. Battery powered emergency lights per code. 8. One rear exterior door light with switch. 9. One empty conduit for telephone service. Sprinkler I. Installed by Landlord if required by NFPA code for general retail use. Miscellaneous 1. New 75 gallon 80,000 BTU quick recovery commercial hot water heater of a make and manufacturer to be reasonably acceptable to Tenant. 2. Single (U two inch (2") gasline, stubbed to location shown on Exhibit 1. 3. Underground plumbing including pop chase, plastic (PVC) drainage lines that are under flour, floor drains, and installation of water lines that can be run under the floor to the locations shown on Exhibit I hereto. NOT : Sales area, as referred above, is an area calculated to be eighty (80%) percent of the total lensed area. Stock area, as referred above, is an area calculated to be twenty (20%) percent of the total leased area. EXHIBIT 1) Tenant agrees as follows: 1) All loading and unloading shall be through the rear entrance service door or other designated entry specified by Landlord. 2) All garbage and refuse shall be kept in a container within the Demised Premises that has a lid capable of totally fitting over the opening and shall be kept In such a sanitary condition as to prevent vermin, insects and offensive odors. 3) Tenant shall not burn trash or garbage of any kind in or about die Demised Premises. 4) No radio, television or other communication or electronic device shall be installed by Tenant on the roof, any exterior wall or common area of the Shopping Center without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 5) No loud speakers, television, phonograph, radio or other noise making device may be used in such a manner as to be heard outside the Demised Premises without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 6) Tenant shall maintain a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 7) Tenant and Tenant's employees shall park their cars and other vehicles only its those areas designated for that purpose by the Landlord, and Landlord shail nays the right, at all :iches, to impose fines upon Tenant or to tow such cars or other vehicles that fail to comply with this regulation at Tenant's sole expense. 8) Trailers, crates, boxes and other such containers shall not be stored in the common areas or used for the storage of goods or other materials in the common areas. SIGN CRITERIA CARLISLE MARKETPLACE SHOPPING CENTER CARLISLE, PENNSYLVANIA 1. GENERAL: The following sign criteria has been established for the purpose of developing uniform, highly visible, aesthetically pleasing store signage and fascia to harmonize with and compliment the shopping center's building material. A. Each Tenant will Identify Its store with Landlord approved signs. B. Tenant will provide at its expense two copies of drawings of its proposed sign. Sign drawings shall include a scale showing individual lettering height and total copy length. Sign construction, installation diagram, material information and color scheme shall also be indicated. Upon review, Landlord will notify Tenant or sign manufacturer of approval or disapproval. C. All Tenant signs will be designed and installed a: a rat's expense. All algns shall meet requirements and specifications set forth In the Landlord's sign criteria. Please note: It Is the Tenant's responsibility to be Informed of sign ordinances in his local area. Where governmental sign requirements are more restrictive than Landlord's criteria, governmental restrictions will prevail. Necessary sign permits shall be obtained at the Tenant's expense. In some cases, your sign company will provide ordinance information as well as obtaining necessary sign permits. Tenant will be held liable and bear all costs for removal/and or correction of signs; sign installation and damage to the building because of signage installation that does not conform with Landlord's sign criteria. Upon Tenant's departure, Tenant will remove its sign and repair store front sign bank to its original condition. D. Tenant shall have sign installed and operating within sixty (60) days of the Rent Commencement Dale. E. National or Regional Tenants: Landlord reserves the right to allow these Tenants to place their registered sign and trade mark on the fascia. If. FASCIA SIGN: A. TYPE: One sign of Individual Channel Letters Internally illuminated is allowed. B. DIMENSIONS: I. Maximum overall height: 28 inches 2. Maximum overall length: 75% of the front footage of the store. (15 feet for a twenty fool storefront.) 3. Minimum letter height: one (1) foot. C. CONSTRUCTION: I. The casings will be fabricated from .050 aluminum. All letters shall have a white interior for an even distribution of lighting. The contour of the letter shall be approved by Landlord. All casing returns shall have a factory finish polyurelhane coating. (Color as per Landlord.) Silva trim shall coordinate with letter color. 2. All letters will be faced with 3/16' acrylic supplied by the Rohm & Hass Company, or equivalent. 3. Each letter will have a diffused lighting effect for an even distribution of illumination. The neon tubing (size of tubes relevant to size of letter) will be as provided by the Corning Company with EGL electrodes (or equal) and with a proper vacuum and pressure of neon gas. The transformers powering the lighting system will be 60 milliamp for increase illumination, and will be underrated 5% to compensate for voltage fluctuation and assure even light distribution. The electrodes will be housed In pyrex spring type units which will be protected from the elements. Secondary wiring will be accomplished by proper high tension cable and Sta-Con fasteners. All wiring shall be remote. All electrical must be U.L. approved and meet all local and state codes. D. BALANCE: I. Vertical: Unless stylized by design, capital letters will be spaced so there is an equal border on top and bottom of each letter with smaller case letters even with the bottom of the capital letter. 2. Horizontal: Letters will be evenly balanced from midpoint of the sign. 3. Logos: Must fit within the 23' height ;.,4-!: %menl. E. OTHER: 1. No flashing action, other mechanical animation, formed or injection molded plastic, or boxtype signs will be permitted. 2. Tenant's sign must be kept clean and in good operating condition at all times at Tenant's expense. 3. Content of signage shall be limited to Tenant's trade name and, at Landlord's discretion, logo only. 4. Lights may not be installed in the storefront to illuminate signs, nor be installed in the sign to illuminate ttte storefront. 111. MOUNTING: A. Mounting brackets are to Ite stainless steel fasteners to prevent staining of fascia. B. Mounting brackets are not to be exposed cr be s.-en. C. Signs are to be mounted for bird control. TENAN'r'S WORK The Landlord will provide Tenant with scale drawings showing the general features of the Demised Premises and locations of toilet room, air ducts, electrical outlets, and sprinkler system (If Installed). Tenant shall submit for approval to Landlord Tenant's interior working drawings and plans prior to making any alterations or improvements to the Demised Premises. The Landlord reserves the right to approve such plans for the purpose of insuring such planned changes will not overload the existing electrical system, degrade die air flow, sprinkler system, or weaken the structural integrity of the Demised Premises or otherwise be detrimental to the Demised Premises or the adjoining stores in the Shopping Center, and to make sure that such plans conform to the architectural design standards of the project. Such approval shall not be unreasonably withheld and shall be promptly responded to by Landlord, Landlord's contractor and/or architect. CONSTRUCIION: All Tenant's work shall be at Tenant's expense. All structural alterations such as plumbing, electrical work, additional walls or bathrooms, vents, grease traps etc., undertaken by Tenant will only be awarded to any operating licensed contractor approved by state or local authority and whose livelihood is derived primarily from such work. Construction personnel hired by Landlord may be used by Tenant, at Tenant's expense, to complete some or all of Tenant's interior upfit, providing such additional employment will not conflict with the Landlord's completion of the Shopping Center and Tenant enters a separate agreement with the contractor. Landlord will not be responsible for or obligated to Tenapt or contractor to intercede on either parties behalf, should disputes arise over work or payment thereof. I.The following work shall be completed at Tenant's sole cost and expense within thirty (30) days of Delivery of Possession. Heating & Air Conditioning: Any and all ductwork, rooftop equipment or split systems not included in landlord's Work. Plumbing; Any and all sprinkler and grease trap work required as a result of Tenant's Work, including the addition of partitions or anything interfering with Landlord's Work. Any and all fixtures and underground plumbing not described in Landlord's Work. Electrical: Any additional electric to the Demised Premises and/or any additional light fixtures, outlets and/or wiring, other than Landlord's Work. Kitchen Equipment: (a) Any and all kitchen equipment shall be installed in accordance with all governmental codes, rules, laws, regulations or ordinances, including but not limited to, building, health and fire tales, and including, but not limited to, such equipment as grease traps or dry sprinkler systems as required. (b) Any cooking equipment that requires howls and/or vent fans which penetrate through the roof or any exterior wall shall have an exhaust system with make-up air. @QUf: (a) Any and all work affecting the roof, including but not limited to, penetrations and anchorages shall be performed by landlord's roofing contractor (at Tenant's expense). (b) Tenant shall protect the roof from all grease, chemical or other emissions in a manner approved by Landlord and Landlord's roofing contractor or warrantee company so that Landlord's roof warranty is not compromised. 2. The following work, should Tenant desire, shall be done at Tenant's expense. a. Installation and service cost of telephone. b. Installation of intercom, radio or T.V. and associated wiring. C. Ceiling light covers not standard to project. d. Display window platforms, elevated floors, room partitions or special rooms. C. Store signs. f. Automatic doors. g. All interior walls and curtain wall within the Demised Premises except as provided by Landlord's work. It. All signs in or on the Demised Premises including construction, furnishing and installation. No sign shall be erected without prior written approval of the landlord or Landlord's architect. )THER: Tenant may add to this list at Tenant's discretion, so long as any such improvements are coordinated with the Landlord beforehand. EXIDRIT F-2 STIPULATION AGAINST LIENS The undersigned contractor, materialman or other entity or person furnishing services, labor or materials, known as , a Pennsylvania (the "Contractor") imending to be legally bound, and in consideration of the sum of ONE AND NO1100 DOLLARS ($1.00) to it in hand paid by , a Pennsylvania ('Owner") the receipt whereof is hereby acknowledged, for Itself and any subcontractors, materialmen, laborers or anyone else acting through or under it, covenants and agrees that no mechanics or materialmen's liens or claims shall be filed or maintained by it, them or any of them, against the real estate described in Schedule "A", attached hereto and made a part hereof, or against any buildings or other improvements thereon Uoitnly and severally, the "Real Estate"), for or on account of any work to Ile done or materials furnished under the principal contract between Owner and Contractor, dated , 19_, or under any supplemental contract, verbal or written, or contract for extra work or materials relating to and work to be done or material furnished tinder salt principal contract. The undersigned, for itself, its subcontractors, materialmen, laborers and anyone else acting or claiming through or under it, hereby waives and relinquishes all right to file a mechanics' lien, claim or notice of intention to file any lien or claim against the Real Estate. The undersigned, for itself, its subcontractors, materialmen, laborers and anyone else acting under or through it, hereby irrevocably authorizes and empowers any attorney of any court of competent jurisdiction of the Commonwealth of Pennsylvania, or elsewhere, to appear as attorney for it, them or any of them, in any such court and, In its or their name or names, mark satisfied of record at the cost and expense of the undersigned, any and all claims, liens, any pleading or instrument, or any amendment to any pleading or instrument previously riled by it or them, to incorporate therein as part of the record this waiver and for such act or acts this waiver shall be good and sufficient warrant and authority, and the undersigned for itself, and for them, does hereby remise, release and quitclaim all rights and all manner of errors, in filing such pleading, instrument or amendment, or in any way concerning them. Owner shall have the absolute right in its name or in the name of the undersigned or any other entity or person who shall have filed a claim or lien, to cause any and all such claims or liens to be discharged by any other instrument, pleading or proceeding permitted at law or in equity. The undersigned hereby avers, represents and warrants that no work has commenced on the Real Estate and no labor or materials have been delivered to the Real Estate or furnished for the improvement of the Real Estate by the undersigned or by any subcontractor, materialman, laborer, or other person or entity, and that no authorization has yet been given by the owner to the undersigned to commence work or purchase materials in connection with the Real Estate. This stipulation is made and intended to be filed with the county Prothonotary in accordance with the requirements of the Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the undersigned Ira's caused this Instrument to be duly executed as of the _ day of ,199. ATTEST: CONTRACTOR: Name: Name: Title: Title: (CORPORATE SEAL) [OR] WITNESS: CONTRACTOR: nmI3 PIZZA ISE 2111M 13.I9,m1 - -._..- .. .`?,' I;.. :,???;?i ., been tried, All have failed because they 11sl1up with eve water and the grease Is pushed onto the roof. Only Grease Guard collects, traps, and holds grease In the worst weather conditional RR Homsrl Development Compsny glnctor of Maintenance "Sandboxes, pickle buckets, rock boxes, and special membrnnos all failed miserably. A Grease Guard grease conlalnmenl system has proven to be the only alleclive solution to our problems.' Grease Is the number one cause of rcollop damage In the restaurant Industry. Unfortunately, no mailer how good your rooftop warranly Is, It dossn'I cover damage from oreass. This is why you need a Grease Guardl Gnaw Guard traps grease before It has a chance to destroy your roof and Vold your warranty. RoPranchlas Burger King Owner 'Grease Guard Is the guarantee the roofing company wouldn't give me.' • i. In every case ilia ruined aroa nipet be replaced • an expensive rgpalr that can be prq'vented by installing a Grosse Guard. Grease also cl s roollop drains causing pending water rind flooroing, weakening the slructure of the root deck. .• RR U.6, Inleo Roofing Products Tgohnloal manager 'grease attacks, and ultimately destroys, every type of roof on the market. Until Grease Guard theta has never been a system to remedy [his problem.' l1?LLl Fuddruokero V.P. Construction `I've been replacing grease damaged roofs for years. During that lime I've filed everything to keep grease from destroying my roofs. The only thing I've found that slops the problem Is the Grease Guard system. Grease Guard really worksl' • IF;. :r• .vn uor Iwuuy w1111uwvi what grease aces to your root and the answer will always bo the same: Grease destroys your roofl The quality of the membrane or the Installation molhod does not make a difference. Hero's how grease allocis different rooting systems: A simple roof repair can cost $3,000, while a now root cnn cast $60,000 or more. When you wolgh the cost of ongoing (possibly annual) tool repairs with ilia cost of a Grease Guard, your decision Is obvious: Grease Guard saves both your tool and your bottom final go RSI Rooting Magazine 'Anyone who walks on a greasy roof, and then ettsmpls to climb down a ladder, or slips near the roof edge, exposes himself to risk of serious Injury or death' I R Guardian Restaurant Fire Protection President Ve dean some of our customers' exhaust systems as often as once a month and their roollops are 61111 greasy and damaged. Greeea Guard is the only solution to roblems - rooftop grease problems.- L Grease on the Bolos of shoos le an open Invitation to moonop grease is Inevrtaote, no muttor now Orion your Grease accidents, Insurance claims and lawsuits. Grease exhaust system la serviced, damaging grease will end on your roof Is as dangerous as grease on your up on your roof, Grasse Guard catches the grease that kitchen floors. even proper exhaust cleanings can't prevent. In most cases a Grease Guard system can be Installad In two hours or less, and requires only a few hours of service each year. Our national network of more than 860 authorized servicing contractors have the training and experience to property Install and ser- vice your Grease Guard system. Protecting your roofing Investment Is easy. Simply call your local Authorized Servicing Contractor for a (roe rooftop evaluation. If a roohop grease problem exists. the contractor will recommend the size and style that meets your needs. Moro than a product, Gres" Guard offers these Important services; • Consulting and Troubleshooting • Nallonal Account Program • National Retrofit Program • Nationwide Installation • Leasing Program • Toll-Free Technical Holhne R Chill's Manager - Const. 6 Development We've been using Grease Guard for years. The jallonal retrofit program and the network of authorized ser- Icing contractors has made Gresss Guard a coat-alloc• ve, and efficient way for us to protect all of our roofing Services Available In Canada and Pueno Rico Customized Services Designed to Meet Your Needs Ir CALL TODAY! 1-800-284-8273 RR Simply attack the condition of the $liters each quarler. Depending on the nature of the loud and the amount of cooking, the middle filler should be reploood when saturated (about every a•12 months). Under normal conditions, the lop filter ^ will fool a year or more, I I f I I I I Greece Deflecting Flashing, I I First Absorbent Layer • UV stable and trq \ t 1 and Flame Reludenl filler that t cape ?'T as large debris. 1 1 -0 r Second Absorbent 4ysr • All grease that lbws through the first layer Is amtw n INI stage, ull char also ads as a repellant to ralre water. When II Wne, ilia grease is hell In N/ Ntar, While the water passes onto am fool, Anodized aluminum [hat Is Impervious to arconWdons. Security Layer: Filter that has a polyufpplhans lining that allows nothing to pass through h. Gros" Guard Unit Sloes and Weights Model No,. Lenglh Wldlh Helghl a Ohl 4911 6W. GO 24 224' 1 38' 1 4' 1 3' 231he. SW6G 36 36" 1 46' 4 26lbs. Oa 30: 39- 36' '4- '3- 201be. X13 46• - 40' 46' .4 3 22lbs. BT Off d ; 3 a. Go 72• 72- 72- 4- 3- 39lbs. 000 72. 72- 60' 4" 3- 35lbs. 000 90, go- 80' 4 3' 441bs. ft • Bide Well Mounted Unlit 000•Cuelorn Steed Units I Alt Plow Layer - Keeps abeolbenl RAs( above any standing water while allowing air to circulate property throughout the Grosse Guard, Many Major Restaurant Chains Are Currently Protecting Their Roofing Investments With The Grease Guard. Some of the National restaurant chains Include: Chills TO[ Friday'& Fuddruckerc Applabees Burger King Ground Round Ruby Tuesday Chevy'sMexican All ir.r rLr' Pitched Roof` 0012 1 4 r min to or MIN Custom F11 01waa Guard • We W2h UW„I or'pquW Cape' Eah,wl F,n 1 A Cwtom FN 0raan 0uwd bhbw ar«Nragplh.dl dpm,nlon'A'. whmb. got mu,baUon " 11n end 2. Odwmina the model numbu by m,IWnp c"n6lw W belwaen Iha orooar minlnwm ,.I . .Ir et,ndard Drwae Quad • U,, wuh TYNuI Upbla,tand Duwnblaw Fan, e D?ilormino ft wi I, de rcurrbb Amm.bn •A' dawn ph. 2. D,IwmN, Uw nlod,l number by m,IWrp dm,n,kn'A• belw.,n the Dropor murmur 'A' A _ a a Pr) L?,. Co n _,JL `y \ (li ON r SHERIFF'S RETURN - NOT FOUND CASE NO: 1999-05991 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LEVIN MANAGEMENT CORP VS. J M R FOODS INC ET AL R. Thomas Kline , Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named defendant, to wit: J M R FOODS INC D/B/A LITTLE LEASERS PIZZA but was unable to locate Them -in his bailiwick. He therefore returns the COMPLAINT AND NOTICE NOT FOUND , as to the within named defendant J M R FOODS INC D/B/A LITTLE LEASERS PIZZA DEFT MOVED TO 105 S. SPORTING HILL RD., MECHBG. THEY THEN MOVED FROM THAT ADDRESS & LEFT NO FORWARDIUQ ADDRESS cmi v?rv Sheriff's Costs: So a rs: Docketing 18.00 Service 6.20 Not found return 5.00 Surcharge 8.00 omas i $?= MO eS9A9 CE & NURICK Sworn and subscribed to before me this .7.2 day of Ocz-1, 19-q er A. D. x.00 . ?rro nono[arY0 A r 4 w LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. NO. J.M.R. FOODS, INC., d/b/a CIVIL ACTION - LAW LITTLE CAESAR'S PIZZA, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. T? fr?PY FROM R Cumberland County Bar Association 2 LibertyAvenue In Tea tow whereto, I here untD 10 My h" Carlisle, Pennsylvania 17103 arW SL u to lab,?} Telephone: (717)149-3166 AVISO USED HA SIDO DEMANDADO/A en come. Si usted desea defenderse de Ins demandas que se presentan mas adelante en Ins siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dial despues de In notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en In Corte por escrito sus defenses de, y objecciones a, Ins demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en In demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL, Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17103 Telephone: (717)249-3166 McNEES WALLACE & NURICK B 7 Cam. y F. Stephenson Matthes Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: 'H6 16 -A ? --1 a r a 4 .4. 11 LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V, J.M.R. FOODS, INC., d/bla LITTLE CAESAR'S PIZZA, Defendant NO. CIVIL ACTION - LAW 1. Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership ("Plaintiff"), is a New Jersey corporation, with authority to do business in the Commonwealth of Pennsylvania, with its principal place of business at 893 Route 22 West, North Plainfield, New Jersey 07060. 2. Defendant, J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza ("Defendant') is a Pennsylvania corporation with its principal place of business at 5012 Lenker Street, Mechanicsburg, Pennsylvania 17055. 3. On or about March 8, 1996, Defendant entered into a Lease Agreement with Carlisle Marketplace Limited Partnership, predecessor in interest to Plaintiff ("Lease") for its business known as Little Caesar's Pizza at the Carlisle Marketplace Shopping Center in Carlisle, Cumberland County, Pennsylvania. Attached hereto as Exhibit "A" is a true and correct copy of the Lease. 4. The Lease was duly executed by Defendant, who agreed to be legally bound by the terms of said Lease. 5. The Lease provides that Defendant shall pay monthly rent and Defendant's pro .41 rata share of insurance, taxes and operating costs, as well as all other charges accruing under the Lease or identified as additional rent, on the first day of each calendar month during the term of the Lease. 6. On or about June, 1999, Defendant terminated its business operations and removed all of its property from the Carlisle Marketplace Shopping Center. Pursuant to Section 4.2 of the Lease, Defendant was obligated to continuously operate its business at the Carlisle Marketplace Shopping Center for the term of the Lease. 8. Defendant has willfully failed to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease for the subject premises. 9. Defendant's failure to pay rent and other charges as per the terms of the Lease constitutes a material breach of the Lease. 10. The aggregate sum due and owing under the Lease, as of August 23, 1999 is Sixty-Four Thousand, Six Hundred and Sixty-Six Dollars and Thirty-two Cents ($64,666.32), exclusive of attorneys' fees. 11. Pursuant to the Lease, Defendant waived its rights to notice upon default and acceleration of the terms of the Lease. 12. Section 15.2 of the Lease provides that, in the event of default, Plaintiff may terminate the Lease without notice to Defendant and Plaintiff is entitled to collect rent and charges equivalent to rent reserved in the Lease for the remainder of the stated terms, together with actual and reasonable attorney's fees. 13. Pursuant to the Lease, Plaintiff has accelerated the Lease. 14. As of August 23, 1999 the amount due under the Lease is Sixty-Four Thousand ., Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees. 15. Defendant's failure to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease provides Plaintiff with the authority to file this Complaint. WHEREFORE, Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership, demands judgment against J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza in the sum of Sixty-Four Thousand Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three 4, Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees and all costs of suit, any pre judgment and post judgment interest, is any other amounts Plaintiff may be entitled to collect under law or in equity. McNEES, WALLACE & NURICK 1, By F. St henson Matthes Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: tj. IL .5y i ? I, Evelyn S. Leonard, Vice President and General Counsel of Levin Management Corporation, agent for Falk US Property Income Fund , L.P., successor to Carlisle Marketplace Limited Partnership, am authorized to verify this Complaint on its behalf and fitrther; the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification to authorities. BY: Levin Management Corporation, agent for Falk US Property Income Fund , L.P., Successor to Carlisle Marketplace Limited Partnership By: ? S. ??- Evelyn S. Leonard, Vice President and General Counsel Dated: September 15, 1999 TOTAL P.02 ,. Exhibit A 4, CARLISLE MARKETPLACE SHOPPING CENTER STORE LEASE ,[,M,,@ ,FOODS. INCA t/a LI i r;,E CAESARB P12LA ARTICLE I - GRANT AND BASIC TERMS Section 1.1 -Basic Data Section 1.2 - Construction of Demised Premises Section 1.3 - Demised Premises Section 1.4 - Acceptance of Demised Premises Section 1.5 - Term of Lease Section 1.6 - Option to Extend Section 1.7 - Landlord's Termination Right AR7TCLEH-RENT Section 2.1 - Annual Minimum Rent Section 2.2 - Commencement of Rent Section 2.3 - Taxes Section 2.4 - Common Area Maintenance Charges Section 2.5 - Percentage Rent Section 2.6 - Late Charge Section 2.7 - Definition of Additional Rent ARTICLE III - PERCENTAGE RENT Section 3.1 - Gross Sales Reporting and Percentage Rent Payment Section 3.2 - Gross Sales Section 3.3 - Record Keeping Section 3.4 - Audit ARTICLE IV - USE OF DEMISED PREMISES Section 4.1 - Tenant's Use Section 4.2 - Continuous Operation Section 4.3 - Radius of Operation Section 4.4 - Utilities Section 4.5 - Signs Section 4.6 - Affecting Tenant's Business 5 ARTICLE V - COMMON ARRAS Section 5.1 - Monthly Common Area Maintenance Charges Section 5.2 - Definition of Common Areas Section 5.3 - Common Area Operating Costs Section 5.4 - Control of Common Areas 7 ARTICLE VI - CONSTRUCTION AND ALTERATIONS Section 6.1 - Landlord's Construction Section 6.2 - Tenant's Alterations Section 6.3 - Builder's Risk Section 6.4 - Tenant's Discharge of Liens 8 ARTICLE VII - MAINTENANCE AND REPAIRS Sectior::.I - Landlord's ObIlivions Section 7.2 - Tenant's Obligations Section 7.3 - Surrender of Demised Premises 9 ARTICLE Vlll - INSURANCE AND INDEMNITY Section 8.1 - Casualty Insurance Section 8.2 - Waiver of Subrogation Sectir n 8.3 - Increase in Fire Insurance Premiums Section 8.4 - liability Insurance Section 8.5 - Rental Interruption Insurance Section 8.6 - Indemnification of Landlord Section 8.7 - Plate Glass Section 8.8 - Landlord's Mortgagee 41 EAU 10 ARTICLE IX - SUBORDINATION, NOTICE, ESTOPPEL AND ATTORNMENT Section 9.1 - Subordination Section 9.2 - Notice to Landlord Sectic,: 9.3 • Estoppel Cert:r'o^.le Section 9.4 - Aitornment Section 9,5 - Assignment of Rents I I ARTICLE X - ASSIGNMENT AND SUBLETTING Section 10.1 -Consent Required 12 ARTICLE XI - WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES Section 11.1 - Waste or Nuisance Section 11.2 - Insurance Requirements Section 11.3 - Hazardous Substances Section 11.4 - Government Permits Section 11.5 - Survival 13 ARTICLE Ell - ADVERTISDIO.; AND PROMOTIONAL PROGRAM Section 12.1 - Advertising and Promotional Program 14 ARTICLE XIII - DESTRUCTION Section 13.1 - Total or Partial Destruction Section 13.2 - Partial Destruction of Shopping Center Section 13.3 - Tenant's Restoration Section 13.4 - Substantial Damage 15 ARTICLE XIV - EMINENT DOMAIN Section 14A - Condemnation Section 14.2 - Restoration of Demised Premises 15 ARTICLE XV - DEFAULT OF TENANT Section 15.1 ..Default Section 15.2 - Remedies Section 153 - Additional Rent Section 15.4 - Guarantors Section 15.5 - Bankruptcy or Other Default Section 15.6 - Failure to Pay, Interest 18 ARTICLE XVI - ACCESS BY LANDLORD Section 16.: - Right of Entry 18 ARTICLE XVII - TENANT'S PROPERTY Section 17.1 - Taxes on Leasehold Section 17.2 - Lass and Damage Section 17.3 - Notice by Tenant 19 ARTICLE XVIII - HOLDING OVER, SUCCESSORS Section 18.1 - holding Over Section IE.2 - Successors and Assigns 19 ARTICLE XIX - QUIET ENJOYMENT Section 19.1 - Landlord's Covenant 19 ARTICLE XX - MISCELLANEOUS Section 20.1 - 7vaiver Section 20.2 - Accord and Satisfaction Section 20.3 - No Partnership Section 20.4 - Force Majeure Section 20.5 - Landlord's Liability Section 20.6 - Notices and Payments Section 20.7 - Financial Statements Section 20.8 - Guarantors Section 20.9 - Captions and Section Numbers Section 20.10 - Definitions Section 20.11 - Partial Invalidity a f7 Section 20.12 - Recording Section 20.13 - Entire Agreement Section 20.14 - Survival Section 20.15 - Applicable Law Sectic-. 7f..'6 - Consents anA Approvals Section 20.17 - Authority Section 20.18 - When Lease Becomes Effective Section 20.19 - Interpretation Section 20.20 - Brokers Section 20.21 - Landlord's Fees and Expenses Section 20.22 - Other Agreements Section 20.23 - Shift Clause 22 ARTICLE XXI - SECURITY AND RENT DEPOSITS Section 21.1 - Amount of Security Deposit Section 21.2 - Use and Return of Security Deposit Section 21.3 - Rent Deposit 23 ARTICLE XXII - TENANT COVENANTS, EASEMENTS Section 22.1 - Tenant Covenants Section 22.2 - Easements A. Demised Premises A-i. Legal Description of Shopping Center B. Landlord's Work C. Intentionally omitted D. Rules and Regulations E. Sign Criteria P. Tenant's Work THIS INDENTURE OF LEASE is made as of theY'? day of -??, 199(p, by and between the landlord mined in Section 1.1(O) (hereinafter referred to as the "Landlord'), and the tenant named in Section I.I(A) below (hereinafter referred to as the ('Tenant'). ARTICLE It GRANT AND BASIC TERMS 1,1 BASIC DATA: The following sets forth basic data hereinafter referred to in this Lease, and, where appropriate, constitute definitions of the terms hereinafter listed. A. TENANT: J.M.R. Foods, Inc., a Pennsylvania corporation with an address of 5012 L.enker Street, Mechanicsburg, Pennsylvania 17055 B. TRADE NAME: Little Caesar's Pizza C. SHOPPING CENTER NAME: Carlisle Marketplace Shopping Center D. DEMISED PREMISES: For the purposes of this Lease the Demised Premises is agreed to be as shown on Exhibit 'A' with approximately 1,600 square feet E. ORIGINAL TERM LENGTH: Five (5) years F. OPTION(S) & LENGTH: Two (2) optional terms of five (5) years each G. MINIMUM RENT: Year(s) 1-2 ® $1,733.33 per month, $20,800.00 annually rtl. 4151 Year(s) 3-4 @ $1,820.00 per month, $21,840.00 annually gs 40 Yem 5 tg $1,883.7n nee month, $22,604.40 annually oo - n t H. ESTIMATED FIRST YEAR PRORATA CHARGES AT COMMENCEMENT OF LEASE (SUBJECT TO ADJUSTMENT OVER TERM OF THE LEASE): (i) Taxes: $152.49 per month $1,829.88 annually (ii) Common Area (including insurance): $105.14 per month $1,801.68 annually Totals $302.73 per month $3,631.56 annually Percentage of overall Taxes. Insurance and Common Area Maintenance Charges ("T.I.C. ") initially payable by Tenant to be determined in accordance with Sections 2.3 and 5.1 hereof. PERCENTAGE RENT: None OPTION PERIOD RENT: MINIMUM RENT: First Option Period: Year(s) 6-7 ® $1,949.63 per month, $23,395.56 annually Year(s) 8-9 ® $2,017.87 per month, $24,214.44 annually Year 10 ® $2,088.50 per month, $25,062.00 annually Second Option Period: Year(s) 11-12 ® $2,161.60 per month, $25,939.20 annually Year(s) 13-14 ® $2,237.26 per month, $26,847.12 annually Year 15 ® $2,315.56 per month, $27,786.72 annually PERCENTAGE RENT: None K. SECURITY DEPOSIT: None L. lag MONTH RENT DEPOSIT: $2,036.06 (includes T.I.C.) M. USE CLAUSE: To be used for the sale at retail of food and beverages and other related promotional items customarily sold in other Little Caesar's establishments throughout the continental United Stales, provided that the primary product shall be pizza, and for no other purpose. N. GUARANTOR(S): None 0. LANDLORD: Canis:.: M,txetptace Limiter Partnership, :/o Ahold Real Estate Company, 333 North Main Street, West Hartford, CT 06117 For Payments Only To: Carlisle Marketplace Limited Partnership, c/o Ahold Real Estate Company, P.O. Box 40,000, Dept. 816, Hartford, CT 06151-0816 P. REALTOR: Wargo Properties, Inc. 1.2 ON91'R t I'1 N 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 canceling and terminating this Lease by giving written notice to Landlord should Landlord fail to complete Landlord's work wiihiu 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 tine 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 apace as aforesaid. 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 pan hereof, in the shopping center commonly referred to as Carlisle Marketplace Shopping Center (the "Shopping Center") located in Carlisle, Pennsylvania and mo;. occura[eiy desciiaed on Exhibit "A- I" 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: Tenant agrees to accept die 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'). 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 pans of the Shopping Center or from changes in occupancy, actual or planned. Landlord reserves the right, without Tenant's consent to (a) change die number, size, height (including additional stories) or location of buildings and common areas in die Shopping Center; (b) change or modify ingress and egress routes; and (c) add additional land or buildings or both to the Shopping Center. 1.5 TFRM OFLEASE .: TO HAVE AND TO HOLD die Demised Premises unto the Tenant for the term specified in Section 1. I(E) hereof unless sooner terminated as provided herein, commencing on the Rent Commencement Date as set forth in Section 2.2 hereof. If the Rent Commencement Date is other than the first day of the month, the first lease year shall be extended to include such partial month such that the first lease year shall end on the last day of the month in which the first anniversary date of the Rent Commencement Date occurs. The parties hereto agree, upon demand made to the other, to execute a supplemental instrument expressing the Rent Commencement Date when the Rent Commencement Dale has been determined. 1.6 OPTION TO EXTEND: Tenant shall have the option to extend the term of this Lease for an additional term of years as set forth in Section 1.1 (F) under the same terms and conditions contained herein except that the Minimum Rent shall be as specified in Section 1.1(1). The option to extend is conditioned upon Tenant during the original or [lien current term (l)oot having been in default more than three limes (luring the then current terns as defined in Section 15.1 of this Lease; (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 tine giving of notice, would constitute n default of any portion of the Lease) when exercising the option and at the expiration of the original or then current term and (3) Tenant giving Landlord written notice of Tenant's 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 ;o extend the term of this Lease. 1.7 LANDLORD'S 1ERMINAI7UN Ulkasr: (A) Giant Food Stores, Inc. has the option to expand its store after the fifth year from the date of its store opening into an area which includes the Demised Premises (the "Expansion Area"), which right may be exercised during the term of the Lease (or an option period thereop granted herein. Notwithstanding anything to die contrary contained herein, should Giant Food Stores, Inc. actually exercise such right, Landlord may terminate this Lease upon four (4) months notice and Tenant agrees to vacate the Deha:ded !'remises on or :%.iurc the expira!ion of said four (4) month period. -5- (B) If Landlord has other similar space within the Shopping Center available that would accommodate the relocation of Tenant during said four (4) month period, then Tenant shall have the option of relocating into such space within thirty (30) days of the later to occur of (i) Tenant receiving notice from Landlord of the availability of such space, or (!i) such relocation space actually becoming available for Tenant to move in. In no event shall any such relocation delay the surrender of the existing Demised Premises beyond the end of said four (4) month period. Tenant shall have five (5) business days after receipt of Landlord's notice that relocation space is available to elect to relocate, thereafter, this relocation provision shall be null, void and of no effect whatsoever. If Tenant elects to relocate in accordance herewith, this Lease shall not terminate, but shall he amended to reflect the relocation of the Demised Premises and Landlord shall reimburse Tenant for one-half of the cost of Tenant's leasehold improvements and moving expenses, up to a combined maximum of twenty-live thousand ($25,000.00) dollars, within thirty (30) days of receipt of Tenant's request therefor, accompanied by adequate proof of such expenditures, a permanent certificate of occupancy for the relocated Demised Premises and lien waivers from Tenant's contractors. The relocation provision contained in this Section 1.7(B) shall only be effective during the original term and Ehr ir:h optional term of :i,:s lease, and :hall thereafter be null, void and of no effect whatsoever. ARTICLE 11: RENT 2.1 ANNUAL MINIMUM RENT: Tenant covenants and agrees to pay Minimum Rent in monthly installments on Elie 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 for payments in Section I.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 Rent Commencement Date, however, if the First Month Rent Deposit set forth in Section I.I(L) hereof has been paid by Tenant to Landlord as provided in Section 21.3 hereof, then such amount as Tenant shall have deposited will be credited by Landlord against any amounts due hereunder for Minimum Rent upon the Rent Commencement Date. Any fractional part of a month shall be prorated and payable in advance. 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 L I (J). Tenant's obligation to pay Minimum Rent is independent of all of [lie other covenants, conditions and obligations of either party to this Lease. 2.2 COMMENCEMENT OF RENT: The "Delivery of Possession" shall be die earlier of (a) the dale that Tenant obtains possession of the Demised Premises from Landlord, or (b) the dale that Landlord notifies Tenant in writing that the space is substantially complete and Tenant may install its fixtures and improvements. The "Rent Commencement Dale", which establishes the dale from which the term of the Lease is measured and upon which Tenant is obligated to pay Minimum Rent, shall be the earlier of (a) ninety (90) days after Delivery of Possession; or (b) the date Iliac the Tenant first opens for b^.s:.ar5r in the Demis :d Premises. "Substantially complete" as used herein means the work to be 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. 2.3 TAX : Front and after the Rent Commencement Date, Tenant shall pay to Landlord as Additional Rent its proportionate share, expressed as a percentage as set forth in Section I.1 (11), of Real Estate Taxes, special lazes and assessments for the Shopping Center or any part thereof (as the same may be increased or diminished from time to lime during the term or this Lease), excluding any lazes separately charged to or levied against Tenant (which Tenant shall pay 100%) or any other tenant (which Tenant shall not pay any proportion of). Notwithstanding anything to the contrary contained in Section I.I(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 tecause 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 appticaZae to Real Estalc : dxes on a motthly basis, along with the monthly Minimum Rent. Initially, such monthly payments slmll be asset forth in Section L I(II). 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 that 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 die Tenant is terminating, a refund shall be made provided no other charges are outstanding by Tenant. If Real Estate Taxes are more than Landlord's estimate, 'tenant shall pay such excess within thirty (30) days of receiving a detailed statement from Landlord. 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 nix bills to Tenant. Additionally, with respect to taxes: (A) RIGHT TO COMIMST ASS SSM M'S: Landlord may contest any and all Real Estate Taxes. The cost of any such contest shall be paid as Additional Rent in the same proporionate share as the Real Estate 'Faxes arc paid and any refund or recovery shall be shared in the same proportionate manner. Tenant shall have no right to contest Real Estate Taxes or assessments without the prior written consent of landlord. -6- (B) REAL ESTATE TAX: Real Estate Taxes 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 Pgaimt 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 Slopping Center by any government agency; (v) any tax imposed upon this transaction, or based upon a reassessment of the Stropping 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 or in addition to, in whole or in part, any tax previously included within the definition of Real Estate Taxes. 2.4 COMMON AREA MAINTENANCE .LIAR .FS: Commencing upon the Delivery of Possession and thereafter on the first of each month Tenant will pay Landlord as Additional Rent, one-twelfth (1/12) of Tenant's proportionate share of the annual common area operating costs, as more fully set forth in Article V hereof. 2.5 PERCENTAGE RENT: Inlendm:_,::y ?.nincd. 2.6 LATE CIIARGE: 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 administrations. 2.7 DFFINI'I70N OF ADDMONAL RE MT: Without limiting any other provision of this Lease, it is expressly understood and agreed that 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, Late Charges 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 die other covenants, conditions and obligations of either party to this Lease. ARTICLE III: PERCENTAf:_E RENT 3.1 GROSS SALES REPORTING AND PERCENTAGE RENT PAYMENT: Intentionally omitted. 3.2 GROSS SAI.F?: Intentionally omitted. 3.3 RECORD KEEPING: Intentionally omitted. 3.4 AUDIT: Intentionally Omitted. ARTICLE IV: USE OFDEMISED PREMISES 4.1 TENANT'S USE: Tenant shall use the Demised Premises solely for tine purposes set forth in Section I.I(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 die 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 Tennant shall keep the dispiay windows of the Dcadsed Premises clean and shall keep the same electrically lighted during such periods of time as die 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 rimes keep the Demised Premises fully and adequately stocked and frxtured. 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 Dcmised 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 -7. written notice to the Tenant with respect to such Shopping Cemer, a current copy of which are attached hereto as Exhibit "D", but which are subject to change at Landlord's reasonable discretion. 4.2 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 during the hours of 11:00 AM to 8:00 PM, and such other hours as a majority of die 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 AM or after 10:00 PM. Tenant will carry a complete stock- of merclumdUre. maintain an ad. oiip!e staff including a qualified store manager headquartered at the Demised Premises to accommodate customers and at all limes 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 oil Sunday, providing such opening is not in violation of any local governmental ordinance or law. Tenant may also close on major nationally recognized or 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 [Iris Lease and Tenant agrees to abide by the hours and days of opening specified herein or be in violation of this Lease. 4.3 RADIUS OF OPERATION: 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 one-half ('A) mile from the Shopping Center during the term of this Lease. This radius clause does not apply to businesses of Tenant currently open and in operation within said radius at the time this Lease is executed. 4.4 UTILITIES: Tenant agrees to pay for Tenant's use of all of its 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 the 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. 4.5 SIGNS: Landlord has established a uniform tenant sign criteria (see Exhibit "E") for 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 goal condition. If Tenant stalls any sign not r.evicusly approved by Landlord chat 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 tine 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 Cemer which adjoin the Demised Premises, upon giving Tenant seven (7) days advance written notification. Attached hereto as Exhibit E-I is a copy of Tenant's ordinary sign specificxlions which Ch^ 7.sndlord hereby a:",,wlcdges and approves. 4.6 AFFECTING TENANT'S BUSINESS: If Landlord leases a store in the Shopping Center to a Direct Competitor, as hereinafter defined, of Tenant and Tenant's gross income for the six (6) months after [he opening of the Direct Competitor for business is demonstrably reduced by twenty percent (20%) or more from Tenant's gross income for [the six (6) months prior to said Direct Competitor's 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 (70%) percent of its gross income form either lake-out or delivery pizza. However, nothing contained herein shall be deemed to prohibit any other tenant in the Shopping Center from dealing or displaying merchandise or services which are the same or similar to [hose sold or displayed by Tenant hereunder, so long as such sale or display by such other tenant is incidental to its main line of business. Notwithstanding anything to die contrary contained herein, the foregoing provisions shall not be applicable to (i) the premises presently demised to Giant Food Stores, Inc., Revco Drug Stores or (ii) any tenant of the Shopping Center occupying in excess of 15,000 square feet of leasable area. This section shall be mull 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 any applicable grace or cure period after written notice thereof by Landlord. 'rhe Tenant shall indemnify and hold Landlord harmless against all liability and expenses including reasonable attorney fees resulting from the Landlord granting Tenant the rights set forth under this Section 4.6. ARTICLE V: COMMON AREAS 5.1 MONTIILY COMMON AREA MAINTENANCE CHARGES: Initially, Tenant's monthly contribulion towards its proportionate share of annual common area operating costs shall be as set hutch in Section 1.1(11). -8- Notwithstanding anylhing to the contrary contained in Section 1. 1(11) hereof, "Tenant's Proportionate share" is a fraction, the numerator of which is the gross lea:dbic area of the Ceml3ed Premises and the denominator of which is the gross leasable area of the Shopping Center from time to time. However, Landlord may (without obligation, and in landlord's sole and absolute discretion) allow or permit a tenant (or tenants) within the Shopping Center to assume and discharge certain common area maintenance obligations with respect to specific portions of the Shopping Center common areas. In such event, the square footage of the space occupied by such (enmu(s) may be deducted from the foregoing denominator for purposes of calculating Tenant's proportionate share of common area operating costs (which costs shall not include those obligations assumed by said tenant(s)). Further, if Tenant's use of the Demised Premises is directly responsible for a material increase in the Shopping Center charges for coalition area operating costs, Tenant shall be solely responsible for such excess cost. The common area operating costs shall thereafter be estimated by Landlord on an annual basis for each calendar year ending run 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 tern of this lease is expiring, 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. Upon request, Landlord shall supply Tenant with copies of all bills and receipts for the common area operating costs. 5.2 DEFINITION OF COMMON 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, spellers, lighting fixtures and equipment, security facilities, and die cost of maintaining these areas for the benefit of the Shopping Center. 5.3 COMMON AREA OPERATING COSTS: 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 lite Stropping 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 areas and drainage facilities, all taxes, assessments, costs and other expenses related thereto), and all other common areas of die Shopping Center (including, but without limitation, all landscaping and gardening), and the fees, costs or expenses, if any, required for tie maintenance and preservation of any rights arising under any easement agreement affecting the Shopping Center, or to fulfill any obligations arising under such an easement agreement. Such costs and expenses shall likewise include (but shall not be limited to) water and sewer charges; utility system installation charges and asses!vwrns; costs of all roof a?td other maintenance, repairs and replacements performed by the Landlord; costs of seasonal or holiday decorations; workers' compensation, public liability, rent interruption, fire insurance, extended coverage avid as other perils co:c,age, plus all endorsements and other insurance coverages deemed reasonable and necessary by Landlord, including boiler and machinery coverages; all applicable wage, unemployment, social security, and personal property taxes and assessments; fees for required licenses and permits; supplies; reasonable depreciation of equipment used in the operation or maintenance of the common areas; and an administrative fee equal to fifteen percent (15%) of the total costs and expenses of operating, managing and maintaining the Shopping Center. Notwithstanding anything contained herein to the contrary, in no event shall Tenant's proportionate share of common area operating costs include costs of original construction, or rite cost of major renovations to the Shopping Center or any management fee payable to Landlord or to any third-parry property management company except for the fifteen percent (15%) administrative fee referenced above. 5.4 CONTROL OF COMMON AREAS: 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 modify, remove, relocate and otherwise change Ibe common areas from time to time as well as the 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 VI: CONRTRUCTION AND ALTERATIONS 6.1 L.ANI)L 1RD'S CONSTRUCTION: The construction work required to be done run the Demised Premises by Landlord prior to the Delivery of Possession shall be as set forth in Exhibit "B". Notwithstanding anything contained herein to the contrary, Landlord hereby represents and warrants that, as of the Delivery of Possession, the IIVAC, plumbing, mechanical and electrical systems as set forth in landlord's Work shall be in good working order and free of any latent defect. 6.2 TENANT'S ALTERATIONS: Tenant agrees, upon Delivery of Possession of the Demised Premises, 111.11 it will with due diligence proceed to obtain a building permit and undertake such construction and renovation work, install such stock, new fixtures (including, but not limited to, Landlord approved signage) and new equipment and to perform such other work as shall be necessary or appropriate in order ill prepare the Deuhised Premises for (lie opening of is business in a first class condition as soon thereafter as possible but in no even( later than ninety (90) days after Delivery of Possession of (he Demised Premises. In the even( that Tenant does not open the Demised Premises with all stock, such Fixtures (including, but not limited to, landlord approved signage) and such equipment -9- necessary for the conduct of its business in a first class manner within thirty (30) (lays after the Ran Commencement Date Landlord shall have the right at any time thereafter to terminate this Lease try 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 Ilse lease term, continence any alterations or modifications without first complying with Exhibit F auached 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. 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 lite 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 goal workmanlike manner in compliance with all governmental requirements, and in compliance with all of the terns 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. Tenant's plans are attached hereto as Exhibit I and are hereby approved. 6.3 BUILDERS 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 i anevrd's mortgagee,., s 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. 6.4 TENAh S DIS LIAR .R OF I tNS; Tenant shall promptly pay its contractor and malerialmen for all work done upon the Demised Premises. Nothing in this Lease shall be construed to authorize Tenant or otters dealing with Tenant, to charge the rents of the Demised Premises or the interest of Landlord in the estate of tire 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 file lien, including Landlord's costs and expenses. Tenant's failure to cause the lien to be released of record or to reimburse Landlord within len (10) business days of Landlord's request for reimbursement shall constitute a default by Tenant under this Lease. Landlord hereby requires Tenant and/or Tenant's contractor, to file a Stipulation Against Liens in the form attached hereto as Exhibit F-2 with [lie Office of the Prothonotary for the county in which the Demised Premises is located to eliminate attachment of mechanic's or materialmen's liens prior to initiation of any construction. ARTICLE VII: MAINTENANCE AND RFPAIRS 7.1 LANDI ORD'S OBLIGATIONS: Except as provided for in Article X111, Destruction, and Article XIV, Eminent Domain, Landlord shall keep and maintain the roof, foundation and exterior walls, 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, in which event Tenant shall reimburse Landlord for 100% of such costs upon demand, 7.2 TENANT" (A) Tenant shall be responsible at its own expense for keeping me Demised Premises neat and clean and in gtxxl order, condition and repair at all limes from fine date of Delivery of Possession of the Demised Premises, and continuously thereafter until the end of the term hereof, including, but without limitation, replacement mid restoration as required of the following: (1) The exterior and interior portion of all doors and door checks, door locks, emergency hardware openers, and door handles; (2) Windows, window molding, plate glass, store fronts, glass (door panels, and showcases surrounding the Dee::sc6 Premises; (3) M f.;umbing and sewage facilities within the Demised Premises, including free now 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; (5) Floors arid floor covering, walls and wall covering, ceiling tiles and ceiling lights (including bulbs and coverings); (6) Tenant fixtures arid all installations made by Tenant; (7) Repairs to rile Dcmised Premises due to illegal entry; and (8) Maintain Tenant's sign(s) in good repair as required in Section 4.5. (B) Tenant shall contract with a qualified service company for reasonable maintenance of the healing, ventilation and air conditioning equipment and famish landlord a copy of the contract within tell (10) days after opening and with subsequent contracts upon cancellation or expiration of rite original contract. 10- (C) Tenant shall 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 Cite 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. (D) If Tenant refuses or neglects to commence and to complete repairs, Landlord may after ten (10) days notice, at Landlord's option, place Tenant in default of the Lease and make said repairs and Tenant shall pay the cost thereof plus any administrative charges, as Additional Rent upon demand. 7.3 SURRENDER OF DFMISED PR MI S: At the expiration of the tenancy, Tenant shall peaceably surrender lice Demised Premises in the same condition as received by It on the Delivery of Possession, reasonable wear and tear excepted. 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 [lie 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 ilia Tenant from the Demised Premises upon the termination of this Lease if, but only if, the Tenant is not then in default hereunder. Tenant shall repair any and all -ivmage caused [c %r 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 cite termination dale 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 [Ile Security Deposit shall not constitute satisfaction of the cost, should such cost exceed the amount of the Security Deposit. ARTICLE VIII: INSURANCE AND INDEMNITY 8.1 CASUALTY INSURAN : The Tenant also agrees that it shall continuously keep its fixtures, merchandise, equipment and other personal property from time [o time located in, on or about the Demised Premises, and all leasehold improvements to the Demised Premises insured by reputable, duly licensed insurance companies against loss or damage by fire with lite usual extended coverage endorsements in amounts at least equal to Cite 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 Delivery of Possession, and no less often than annually thereafter, and at any other time upon the request of the Landlord, the Tenant shall furnish to file 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. 8.2 WAIVER OF S RO ATION: Insofar as and to the extent ilia[ Fite following provision may be effective without invalidating or making 4 impossible to s .cure insurance coverage obtainable front responsible insurance companies doing business in the Commonwealth of Pennsylvania (even though extra premium may result therefrom), the Landlord and ilia Tenant mutually agree That with respect to any loss which is covered by insurance then being carried by [hens, respectively, the one carrying such insurance and suffering said loss releases the otter 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 [he otter on account thereof. fit Fite event that any additional premium is payable by either party as a result of [his provision, [lie 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 line parties hereto. 8.3 INCREASE IN FIRE INSURANCE PREMIUM 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 insuia:ce 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. 8.4 LIABILITY INS IRAN -E: 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 die Demised Premises and the business operated by Tenant and permitted sublenams of Tenant in the Demised Premises in which the combiners single limits of coverage shall not be less than $1,000,000.00 per occurrence, with an annual aggregate of not less than $2,000,000.00. The limits of coverage shall be increased from time m time upon Landlord's request, in accordance with shopping center management practices then prevailing in the area of the Shopping Center. The policy shall be in form approved by Landlord, shall name Landlord (and such other persons as are In privily of estate will, 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 PcOnsylvania 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. 8.5 RENTAL. INTERRI PTION INSURANCE: Landlord may, In Landlord's sole discretion, maintain a policy of rental interruption insurance, the cost of which shall be part of common area operating costs. 8.6 INDEMNIFICATION OF r ANDr ORD: To the extent permitted by law, Tenant will protect, indemnity, defend end 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. 8.7 PLATE CLAU: Tenant shall replace at its own expense anv and all plate and other glass in and about the Demised Premises damaged or broKen from any cause whatsoever. 8.8 LANDLORD'S MORTGAGE : 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. ARTICLE IX: SUBORDINATION NOTICE, ESTOPPEL AND ATTORM Ffv I 9.1 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:,nL, and amounts pa able to it under :he 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 easement 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, replacements 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, easement or sale and leaseback as shall be reasonably requested by file 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 of receipt, then, Tenant hereby irrevocably appoints the Landlord as its attomey-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 die contrary, in the event file 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. 9.2 NOTICE TO LANDLORD: The Landlord shall in no event be in default in the performance of any of the Landlord's ebligations 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 Demisell Premises notifies the Tenant that such holder has taken over the Landlord's rights under this I-ease, the Tenant shall not assert any right to deduct the cost of repairs or any monetary claim against the I andlord from rent ibereafrer duc znd navable, but shall look solely to (lie Landlord for satisfaction of such 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. 9.3 FSPOPPE . RUJIFI .ATE: Tenant agrees, at any time, and from time to tittle, upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement 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 staling 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 that the Demised Premises have been completed on or before the date of such certificate and .12_ that all conditions precedent to the Lease taking effect have been carried out or fulfilled; that Tenant fins accepted possession; (flat the lease term has commenced; Tenant is occupying Ole Demised Premises and is open for business; slating whether or not there exists any default by either party in the performance of any covenant, agreement, tern, 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; and any other state of facts which Landlord or such other designated parties may reasonably require; 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 prospective mortgagee of any mortgage affecting the Demised Premises or the Shopping Center. If Tenant does not deliver such statement to Landlord within such ten (10) day period, Landlorl, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following facts: (1)lhal die terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; (ii) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii) dial not more than one month's Minimum Rem 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 tell (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 snrh encumbrance bolder in the event of any casualty damage to the Demised Premises or in the event of any default on die pan of Landlord under this Lease, and will agree to allow such encumbrance 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. 9.4 ATfORNMENT; At the option of Ore holder of any mortgage affecting die Dendsed 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 die 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 die mortgaged premises in foreclosure whereby Tenant atoms to such successor in interest. 9.5 ASSIGNMENT OP 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 file Demised Premises, the Tenant agrees: (A) that the execution thereof by the I.:nd:.-jrd, and the accrr-lance 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 otherwise 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 X: ASSIGNMENT AND SUBLETTING 10.1 CONS .NT R .O IR .D: Tenant shall not voluntarily or involuntarily assign this Lease in whole or part, nor sublet (which tern, 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 file Landlord's consent pursuant to this Section 10. 1, the Tenant shall furnish such information regarding the prospective assignee or sublessee as the Landlord may require, 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 n"ration 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 from the business operations of the Tenant in the Demised Premises to a person or entity other than the Tenant, or otherwise having substantially the same effect, shall be treated for all purposes as an assignment of this Lease and shall be governed by the provisions of this Section 10.1. In the event tint Tenant receives a bona fide written offer front a third party (other than an Approved Assignee, as hereinafter defined) for the sublease or assignment of the Demised Premises, Tenant shall fnnhwith notify Landlord in writing, attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon terms of said offer, whereupon Landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option, cancel and terminate this Lease, 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 file 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 13- herein, but no such collection shall be deemed a waiver of this Article X, or the acceptance as tenant of any such purported assignee, subtenant or occupant, or a release of Tenant from the further performance by Tenant of covenants on the pan of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable for the obligations of the Tenant hereunder, including, without limitation, the obligation to pay tire rents and other amounts provided for under this Lease, and shall not be released from performing any of the terms, covenants or conditions hereof. If Tenant is a corporation or partnership, any sale, transfer, pledge, leveraged buy out or other disposition of twenty-five percent (25%) 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, 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 Guarantors or to the Tenant's franchisor, Little Caesar's Enterprises, Inc. ("LCE") or to any approved franchisee of LCE (individually and collectively, each an "Approved Assignee"), provided that Tenant provides Landlord with notice of such assignment, including copies of all documents related thereto, within ten (b) days of such assigrmcri. Notwiihstrnding any such assignment, 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 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. 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 XI: WASTE GOVERNMENTAL AND INSURANCE REOUIREMENTS AN HAZARDOUS SUBSTANCES 11.1 WASTE OR 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 wi ich may disturb rite quiet enjoyment of occupants of adjoining properties. 11.2 INSURANCE REQUIREMENTS: Tenant shall, at its sole cost and expense, comply with all of [lie requirements of any insurance carrier for the Shopping Center, now in force or which may hereafter become applicable. 11.3 HAZARDOUS SUBSTANCES: Tenant covenants and warrants that Tenant, Tenant's Work, as set forth in Exhibit F attached hereto and made a pan hereof, and any alterations thereto and Tenant's use of Demised Premises and performance of its obligations 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 the 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, ariza:dous materinis n.` tohy 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 (as 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. 't'enant 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 14- 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 11.3, or (b) arising out of the Treatment of any Waste by Tenant or any licensee, concessionaire, manager or otter party occupying or using file 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 11.3. 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 Demised Premises. Landlord shall conduct and complete all investigations, studies, sampling and testing, and all removal and other actions necessary to cleanup and remove all hazarclons materials on, under, front or affecting the Detnised Premises if required by and in accordance with all applicable orders and authorities ("Remediation"). Ilowevcr, if such remedlaton is necessary as a result of Tenant's use of tie Demised Premises then the other provisions of this Section 11.3 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 die terns and die representations set forth in this Section 11.3. Landlord may require that Tenant deliver to landlord concurrent with Tenant's vacating the Demised Premises at Tenant's expense, a certified statement by licenszd cagineers, in form and substance satisfactory to Landlord, slating that Tenant, Tenant's Work and any alterations thereto and Tenant's use of the Despised 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 xt or affected the Demised Premises. 11.4 GOVERNMENT PERMITS: Tenant shall, in performing its obligations hereunder and at its own expense, comply with all applicable present and future laws, ordinances, rules, and regulations 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 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. 11.5 SURVIVAL: All of the terms, covenants, warranties and indemnifications contained in this Section shall survive the termination of this Lease, ARTICLE XII: ADVERTISING AND PROMOTIONAL. PROGRAM 12.1 ADVERTISING AND PROMOTIONAL PROGRAM: Intentionally Omitted. ARTICLE XIII: DESTRUCTION 13.1 TOTAL OR PARTIAL DESTRUCTION: If the Demised Premises shall be partially or totally destroyed by fire or other casualty insurable under full st:,cA;-, fire and extent. l 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 (consisient, 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 lime 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 Minimum and Additional 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 Dentiscd Premises are damaged or destroyed), or (ii) any lender of landlord does not permit use of insurance proceeds uh repair and restore the building, or (iii) the unexpired portion of the term of this Lease shall tic eighteen (18) mantes or less at the dale of the damage, Chen landlord may elect not to repair or rebuild the Dcmised Premises, or so much thereof -IS- 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 reconstruction 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 sha;l remain in fu;l force and effect. Notwithstanding anything to the contrary contained herein, Landlord she:l no: he 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. In the event that Landlord shall exercise the right given heretofore to terminate, then this Lease and the terms hereof shall cease as of die 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 and Additional Rent shall be abated or reduced proportionately during the period in which the Demised promises arc rendered wholly or partially unienantable 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 and Additional 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 XIII. 13,2 PARTIAL DESTRUCTION OF SIIOPPIN a R: In the event that 50% or more of tee Shopping Center shall be substantially damaged or destroyed by fire or other cause, notwithstanding that lite 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 lime 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. 13,3 TENANT'S RESTORATION: Unless this Lease is terminated as provided in Section 13.1 or Section 13.2 of this ARTICLE XIII, 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 tine Landlord pursuant to this ARTICLE XIII 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 trade fixtures and all personal property necessary or proper for the operation of the Tenant's business; and (iii) open for business in the Demised Premises as soon thereafter as possible. 13.4 SUBSTANTIAL DMA : The term "substantially damaged or destroyed", as used in this ARTICLE XIII, 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. ARTICLE XIV: EMINENT DOMAIN 14.1 TAKING 1)V EMINENT DOMAIN ONL) MINATION: in the event of any taking by eminent domain, condemnation or conveyance in lieu thereof.rxraiaafter a "Taking,') 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 [lie extent tine 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 he separately awarded to Tenant in Tenant's own name and right on account of all damage to Tenant's business by reason of flit Taking, any cost which Tenant may incur in removing Tenant's property from lite Dcmised Premises and any costs of relocating Tenant's business. Further, Tenant's rights to recover under this paragraph shall be subordinate to lite rights of Landlord's mortgagee(s). 14.2 RESTORATION OF DEMISED PREMISES: In the event that any part of the Demised Premises shall be subject to a Taking, and should this Lease not be terminated in accordance with the foregoing provision, the Landlord will, within a reasonable time after such Taking, 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 XV: 12EEAUL.T OF TFNANT 15.1 DEFAULT: Anyone 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 notice of such failure to make payment when due, any payment of Minimum 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); 16- (B) 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 written notice shall be limited to one ( l) time during each calendar year of the term of this Lease; however, if such term or condition is of such a nature that it cannot reasonably be cured within ten (10) business days , and Tenant is making goof faint efforts to cure avid default, then Tenant may have up to thirty (30) days to cure such default; (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 Slates 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 die benefit of creditors, or petitions for or enters into such an arrangement; (D) If Tenant fails, after the term of this tease 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; (E) If Tenant shall default in the timely payment of Minimum Rent, Additional Rent, or other 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; or (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, shall constitute an immediate termination of Tenant's right to possession of the Demised Premises. The notice or 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 LDemised permanent improvements thereon and may rem-e all persons and property from the Demised Premises by force, mary action, or otherwise, and such properly may be removed ana stored in a public warehouse or elsewhere at cost of and for the account of Tenant, all without service of notice or resort to legal process, and without being med guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby and without udice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Tenant es that Tenant shall have no further claim under this Lease and shall quit and deliver up the possession of the Premises, including permanent improvements to the Demised Premises, when this Lease terminates by tation of its term or in any other manner provided for herein. 15.2 REMEDIES: If an Event of Default occurs, the Landlord may elect to re-toter 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 releiting 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 retelling the Demised Premises and take into account In connection with any retelling 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, mailers 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 Melling 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 retailing including brokerage fees and attorneys' fees, costs of collecting the rent in connection with such relet, and lire costs of any necessary or desirable alterations and repairs; third to the payment of the most overdue rent owed at that lime; 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 relining during any month be less than that to be paid during that month by Tenant hereunder, Tenant shot] be liable for the payment of such deficiency to Landlord. Such deficiency shall be calculated and become payable monthly in the same nhan er 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 consumed as an ctccrion 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 retelling without 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 or such -17- breach, Including die cost of recovering the Demised Premises, and the amount of rent and charges equivalent 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 die Minimum Rem set forth in Section I.JIG) (or if default occurs during any option period hereto, as set forth in Section 1.l(J)), and the Additional Rents specified in Section 15. TO INDUCE THE LANDLORD TO ENTER INTO THIS LEASE, (1 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 T412 LANDLORD AND THE TENANT, THE TENANT'S USE OR OCCUPANCY OF THE DEMISED PREMISES, ANDIOR ANY CLAIM OF INJURY OR DAMAGE, AND (III) THE TENANT AGREES NOT TO INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY PROCEEDING COMMENCED BY THE LANDLORD FOR NONPAYMENT OF MINIMUM RENT, ADDITIONAL RENT OR ANY OTHER AMOUNT DUE HEREUNDER, PROVIDED THAT SUCH CLAIM IS NOT REQUIRED BY LAW TO BE BROUGHT AS A COUNTERCLAIM TO AVOID FORFEITURE OF THE CLAIM AND 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, 15.3 ADDITIONAL RE: For the purposes of this ARTICLE XV, it shall be deemed that Additional Rent for any period after any default and entry by die Landlord would have been at a monthly rate thereafter equal to the average monthly Additional Rent which the Tenant was obligated to pay to rile landlord under this Lease either: (I) from the Rent Commencement Date hereof to the date of such default; or (ii) during die last three (3) years prior to the dale of such default - whichever Is greater. 15.4 GUARANTORS: If this Lease shall be guaranteed ou b half of the Tenant, all of the provisions of this ARTICLE XV with respect to bankruptcy of the Tenant, etc., shall be deemed to read 'the Tenant or the Guarantor hereof.' 15.5 BANKRUPTCY OR OTHERDEFAULT: 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 and of applicable law, said debtor in possession/trustee shall provide Landlord with such written assurances of future performance as are acceptable ro 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 goals, 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 tine 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 mild all goals, 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 line proceeds thereof less any and all expenses connected with tine taking of possession and sale of the property, as a credit against any sons due by Tenant :o 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 or appliance installed by Tenant. Landlord hereby waives any lien or right in and to such items. Landlord agrees, as may be reasonably 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 Tenant and shall not attach to the real estate or any personal properly of Landlord. Attached hereto as Exhibit "II" 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; provided that Tenant has first provided Landlord with an equipment list m attach as an exhibit thereto. In addition to other remedies available under this Lease, in the event of an occurrence of an Evert of Default or, in the event of a threatened breach by Tenant of any of tie covenants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy a:;uwed by law or in equity as if reentry, 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 is- 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, (iii) rite commencement of a suit, or (iv) final judgement for possession of die Demised Premises, Landlord may receive 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, suitor 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, Additional Rent and all other charges accruing hereunder. 15.6 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 ihis Lease to be mad;; 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 (S.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 (1.596) 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. ARTICLE XVI: ACCESS BY LANDLORD 16.1 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 saute 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) snake 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 dial 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 XV 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 construed to impose upon Landlord any obligation, responsibility or liability whatsoever for die care, maintenance or repair of the building or any part thereof, except as otherwise herein specifically provided. ARTICLE XVII: TENANT'S PROPERTY 17.1 TAXES ON L 2A •iIO •D: Tenant shall be responsible for, and shall pay before delinquency, all municipal, county, or state taxes assessed during die term of this Lease against any leasehold interest or personal property of any kind owned by or placed in, upon, or about die 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. 17.2 LOSS AND DAMAGE: The Tenant agrees to use and occupy the Demised Premises and to use such other portions of the Shopping Center as it is herein given rite right to use at its own risk; and that the Landlord shall have no responsibility or liability for any loss of or damage to die 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 die whole of die term he:wf, a.ld any earlier p:.i i,rJ that Tenant may enter the Demised Premises. The Tenant 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 loss or damage resulting to the Tenant to -19- those claiming by, through or undo: the Tenant, at ds or their property, from the bursting, stopping or leaking of water, gas, sprinkler, sewer or steam pipes. Any such waiver of liability of the Landlord by the Tenant shall not apply in the event any injury, loss or damage was proximately caused by die negligent acts or omissions or Intentional acts of die Landlord, its agents, representatives or employees. 17.3 NOTICE BY TENANT: Tenant shall give immediate notice to Landlord In case of fire or accidents, or damage to or of defects in die Demised Premises or in the building of which the Demised Premises are a part. ARTICLE XVIIL• HOLDING OV R C ScORS 18.1 HOLDING OVER: Any holding over by the Tcnanl after [lie expiration of the term of this lease shall be treated as a tenancy at sufferance at one and one-half (I 'h) times the Minimum Rent payable immediately before said expiration of the Lease (and if varying rates are specified herein, at one and one-half (1 hh) times the highest such rate) plus the Additional Rent and other charges specified herein, prorated on a daily basis, and shall otherwise be on the terms and conditions act forth in this Lease, so far as applicable. 18.2 SUCCESSORS AND ASSIGNS: 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 those instances in which the Landlord may later give consent to a particular assignment as required by the provisions of ARTICLE X hereof. ARTICLE XIX: OUIET ENJOYMENT 19.1 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 pan 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 die 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 die 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. ARTICLE XX: MIS . • .AN'O IS 20.1 WAS: 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 terns, 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. 20.2 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 endorsement 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. 20.3 NO PARTNE.RSIIip: 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 venturer or a member of a joint enterprise with Tenant. 20.4 FORCE. MAJEURE: 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 20.4 shall not operate to excuse Tenant from the prompt payment of Minimum Rent, Additional Rent, or any other payments required by the terms of this Lease. 20.5 LANDLORD'S L•IADILLU: 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 -20. money damages (except as set forth in Section 20.16), 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 die 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 Cenle, m4 hubjeci to the pt;a; rights of any mortgagees for ilia 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 Landlord's right, title and interest in the Demised Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 20.6 NOTICRS AND PAYMF*^ ?: Any notice by Tenant to Landlord must be served by certified mail, postage prepaid, or national overnight delivery service, addressed to Landlord at the place designated for the delivery of correspondence in Section 1.1 (O), with copies ti.: Ahold Real Es:alc Company, 333 North Main Street, West Hanford, CT, 06117, Attention: Executive Vice President - Leasing, 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, or national overnight delivery service addressed to Tenant at llte Demised Premises, with copies to Scott K. Liles, P.C., 3000 Town Center, Suite 2690, Southfield, Michigan 48075, 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 20.6. 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 at the address set forth in Section 1.1 (O) for payments. 20.7 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. 20.8 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. 20.9 CAPTION AND SECTION N IMO RS: 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. 20.10 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. 20.11 PARTIAL INVALIDITY: If any term, covenant, or condition of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this tease or the application of such term, covenant, or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 20.12 RECORDING: 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 fortis the rental or other charges payable by the Tenant unrie- this Lease; and any such document shall expressly state that it is executed pursuant to lite provisions contained to this Lease, and is not intended to vary the terms and conditions of this Lease. 20.13 ENTIRE. AGREEMENT: The Lease and the exhibits and riders, if any, set forth all ilia 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, negotiations, arrangements, representations, agreements and understandings, whether oral, written or both, between the parties hereto, and their representatives, are merged herein and extinguished, this lease superseding and canceling the same. Except as herein otherwise provided, no subsequent alteration, amendment, change or addition to tlhis Lease shall be binding upon Landlord or Tenant unless reduced to -21- 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 provisions of this Lease the provision contained in such rider shall supersede said provision act forth herein, Tenant hereby acknowledges that (a) except as otherwise expressly provided herein, this Lease contains no restrictive covenants or exclusives In favor or Tenant; (b) this Lease shall not be deemed or Interpreted to contain, by implication or otherwise, any warranty, representation or agreement on die 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 n:irrrof; (c) before crrering Into this Lease the Tenant has made Its own observations, studies, determinations and projections with respect to the Tenant's business in the Dcmiscd Premises and all other factors relevant to the Tenant's decision to enter into this Lease, including, without limitation, competition, market size, sales volume, profitability and general, so-called "demographics" -- both present and prospective; and (d) neither the Tenant nor any representative of die Tenant has relied upon any representation by (or any "conversation" with) the Landlord or any representative of tine 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. 20.14 SURVIVAL: 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. 20.15 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 die laws of the Commonwealth of Pennsylvania. 20.16 CONSENTS AND APPROVAI c: 'Arhenever 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. 20.17 AUTHORITY: In the event Tenant and/or (he 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 dale 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?uzranty, rn aprlicable, has been Goly authorized. In the event Tenant hereunder shall be a partnership, either general or limited, the persons or entitles 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 dale; all future forms, reports, fees and other documents necessary to comply with applicable law will be filed when due; and those entities executing (Iris Lease on behalf of the partnership are duly qualified to bind, and in fact do bind, the partnership. 20.18 WHEN LEASE BECOMES . CTIV This Lease shall be effective only when it is signed and delivered by bolls 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 herein shall be immediately in full force and effect, and enforceable in accordance with the terms hereof, 20.19 INT'E.RPRETATION: Roth 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 die parties and, in die event of any ambiguity herein, no inference shall be drawn against a party by reason of document preparation. 20.20 BROKERS: 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 Seclinn 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 tither 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 -22- or incurred by Landlord resulting from any claims asserted against Landlord by brokers or agents claiming through Tenant. 20.21 LANDLORD'S FEES AND EXPENSES: Unless prohibited by applicable 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 Miles between Landlord and Tenant, die prevailing party shalt be entitled to reimbursement of reasonable legal fees by the other party. 20.22 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. 20.23 SHIED CLAUSE: 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 Rent Commencement Date or during the term of this (lase, 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 parries shall execute a supplemental instrument showing such shift in location of the Demised Premises. Tenant shall move to such relocated premises (p immediately, in the event that Landlord's notice is given prior to the Rent 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 Rent Commencement Date. Landlord shall reimburse Tenant for all reasonable moving costs incurred by Tenant in relocating as contemplated by this Section 20.23. 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 Demised Premises will be relocated; (B) the new premises shall not be smaller than the Demised Premises; (C) the rent in the new premises shall be ident'ral to that ;n r • Demised Preinises (not computed on a per square foot basis, but, rather, computed on a dollar basis); (D) Landlord shall pay for all reasonable costs of relocation; and (E) Tenant shall not be unable to operate its 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 its option hereunder. In such event, this Lease will terminate sixty (60) days after notice by Tenant of termination. 20.24 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 Demised 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, as may be reasonably 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 Tenant and shall not attach to the real estate or any personal property of landlord. Attached hereto as Exhibit "if" 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; provided that Tenant has first provided Landlord with an equipment list to attach as an exhibit thereto. ARTICLE XXI: SECURITY AND RENT DEPOSITS 21.1 AMOUNT OF SECURfrY DEPOSIT: Intentionally omitted. 21.2 USE AND RETURN OF SECURITY DEPOSIT: Intentionally omitted. 21.3 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 XXII: TENANT COVENANTS. EASEMENTS 22.1 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 may 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 dial 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 remedies stated in Article XV hereof and any other remedies available under the 11-H of the Corant n.::realth of Penrs"iv_cia. Nothing contained in this Section 22.1 shall be construed to permit Tenant to expand the allowed uses set forth in Section 1.1 (M) hereof. -23- 22,2 FASEMEM: The Shopping Center is and/or may be encumbered and/or benefilted from time to time by certain easements, development and operating ron•„arts, and simile, f•e:ments. 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: LANDLORD: CARLISLE MARKETPLACE LIMITED PARTNERSHIP BY: Carlisle Corp., its general partner By: Its. TENANT: J.M.R. FOODS, INC. t/a LITTLE CAESAR'S PIZZA By: 44,e14,jJk- Its: V..t P,..? (5803-PIZZA ASE) HI796 (3:47pm) -24- DC???p?77. //ZG?7i? e ALL THAT CERTAIN tract of land situate along the eastern line of South Spring Garden Street, in the Second Ward of the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described in accordance with a Final Subdivision Plan for Seven Gables Estates and Ahold Real Estate Company, by J. Michael Brill 6 Associates, Inc., Consulting Engineers, dated July 8, 1994, revised December 2, 1994 and recorded in Subdivision Plan Book 69, Page 124, as follows: BEGINNING at a rebar on the eastern line of South Spring Garden Street, (Township Route T-516), at corner of lands now or formerly of W. C. Wertz; thence by the eastern line of South Spring Garden Street, North nineteen (19) degrees fifty-two (52) minutes sixteen (16) seconds East, a distance of 672.99 feet to a point on the southerly line of Samuels Drive; thence by the said Samuels Drive, by a curve to the right having a radius of 25.00 feet, an arc length of 36.91 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, 395.59 feet to a point; thence by a curve to the right having a radius of 190 feet, an arc length of 97.13 feet to a point; thence by the same, by a curve to the left, having a radius of 310 feet, an arc length of 158.47 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, a distance of 96.67 feet to a point at corner of Lot 3 .:•n the hereinabove mentioned Plan of Lots; thence by the said Lot 3, South fourteen (14) degrees twenty-one (21) minutes thirty-one (31) seconds West, a distance of 566.72 feet to a point; thence by the same, South seventy-three (73) degrees thirty-three (33) minutes forty-three (43) seconds West, a distance of 110.80 feet to a point on line of lands now or formerly of Jeffrey S. Smith; thence by lands now or formerly of Jeffery S. Smith and along lands now or formerly of W. C. Wertz, North seventy-five (75) degrees fifty-five (55) minutes forty (40) seconds West, a distance of 731.16 feet, to a rebar (found), the point and place of BEGINNING. BEING Lot 12 as shown on said plan. TOGETHER WITH rights, easements, covenants, and restrictions contained in a Declaration of Covenants, Restrictions and Easements between seven Gables Estates and Carlisle Marketplace Limited Partnership, dated March 24, 1995 and recorded March 24, 1995 in Misc. Book 493, page 120. Landlord's Work Is limited to the work described herein, all work not classified as landlord's Work is Tenant's Work. Storefront 1. Aluminum and glass door single acting 3'-0" X T-O". 2, Aluminum storefront framing with 1" insulated clear glass to 10'-0' above the floor line, or as required by local code. 3. Lower panel glass and glass within 5'-0" of door will be tempered. Interior Finishes 1. Demising partitions: 3-5/8" metal studs at 16" o.c. with 518" fire code gypsum board, painted with one (1) coat of primer, ready for Tenant's paint. Interior partition dividing stock and sales area: 3-5/8" studs at 16" o.c. with 'h" gypsum board, pointed with one (1) coat of primer, ready for Tenant's paint. Ilollow core wood door with hardware shall be provided in drywall partition between sate and stock areas. 2. 4" Concrete floor, troweled smooth (no finish flooring materials). 3. Vinyl composition tile in restroom. 4. Standard duty, smooth and washable to meet all applicable Ilealih Department requirements, 2' x 2' in customer lobby and 2' x 4' in the remainder of the Demised Premises, white suspended acoustical ceiling tile and white metal grid at 10'-0" A.F.F. with an 8'-0" A.F.F. ceiling height in restroom in accordance with Tenant's plans and specifications attached hereto as Exhibit 1. 5. One 3'-0" X 6'-8' hollow metal insulated door (painted) and frame at rear, with panic hardware. RestmQm 1. Complete with fixtures, including water closet, lavatory, toilet tissue holder, soap and paper dispensers, light fixtures, mirror and exhaust fan per local code and the ADA. 2. One pre-finished 3'-0" X 6'-8" hollow core wood door with a privacy latch and self closure. 3. Complete wilh handicap accessible fixtures and accessories including grab bar at toilet. 4. Restroom walls of 'h' gypsum wallboard, painted with one (1) coat of primer, ready for Tenant to paint. 5. Water service to lerant space restroom (3/4"). 6. One dual light/fan. I. HVAC system complete with one (1) manual control accustat thermostat and distribution ducts and diffusers throughout sales and stock area with all main and secondary runs of ductwork. S. Size of system to be seven and m%, hwl' (7 'h) tons Electrical 1. 3-phase, 4 wire, 208/240 volt, 200 amp, three-phase electrical service with 42 breaker panel, including breakers and volt main di.".connect lorat^.'. accordance w:d+ Frhibit 1. 2. 2 X 4 fluorescent fixtures (one per 100SF) with prismatic acrylic lens in accordance with Exhibit 1. 3. Three (3) 4' fluorescent strip fixtures in stock area. 4. One duplex outlet every 20'-0" or as code requires. 5. One 20 amp sign circuit to canopy. 6. Battery powered exit lights per code. 7. Battery powered emergency lights per code. 8. One rear exterior door light with switch. 9. One empty conduit for telephone service. Sprinkler I. Installed by Landlord if required by NFPA code for general retail use. Miscellaneous I. New 75 gallon 80,000 BTU quick recovery commercial hot water heater of a make and manufacturer to be reasonably acceptable to Tenant. 2. Single (1) two inch (2") gasline, stubbed to location shown on Exhibit 1. 3. Underground plumbing including pop chase, plastic (PVC) drainage lines that are under floor, floor drains, and installation of water lines that can be run under the floor to the locations shown on Exhibit I hereto. NOTE: Sales area, as referred above, is an area calculated to be eighty (80%) percent of the total leased area. Stock area, as referred above, is an area calculated to be twenty (20%) percent of the total leased area. CxIBBIT D Tenant agrees as follows: 1) All loading and unloading shall be through the rear entrance service door or other designated entry specified by Landlord. 2) All garbage and refuse shall be kept in a container within the Demised Premises that has a lid capable of totally filling over the opening and shall be kept in such a sanitary condition as to prevent vermin, insects and offensive odors. 3) Tenant shall not burn trash or garbage of any kind in or about the Demised Premises. 4) No radio, television or other communication or electronic device shall be installed by Tenant on the roof, any exterior wall or common area of the Shopping Center without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 5) No loud speakers, television, phonograph, radio or other noise making device may be used in such a manner as to be heard outside the Demised Premises without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 6) Tenant shall maintain a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 7) Tenant and Tenant's employees shall park their cars and other vehicles only in those areas designated for that purpose by the Landlord, and Landlord shah navc the right, at all :ides, to impose fines upon Tenant or to tow such cars or other vehicles that fail to comply with this regulation at Tenant's sole expense. 8) Trailers, crates, boxes and other such containers shall not be stored in the common areas or used for the storage of goods or other materials in the common areas. SIGN CRITERIA CARLISLE MARKETPLACE SHOPPING CENTER CARLISLE, PENNSYLVANIA 1. GENERAL: The following sign criteria has been established for the purpose of developing uniform, highly visible, aesthetically pleasing store signage and fascia to harmonize with and compliment the shopping center's building material. A. Each Tenant will identify its store with Landlord approved signs. B. Tenant will provide at its expense two copies of drawings of its proposed sign. Sign drawings shall include a scale showing individual lettering height and total copy length. Sign construction, Installation diagram, material Information and color scheme shall also be indicated. Upon review, Landlord will notify Tenant or sign manufacturer of approval or disapproval. C. All Tenant signs will be designed and ;nstalled a: "e...w's expense. .41; a'gns shall meet requirements and specifications set forth in the Landlord's sign criteria. Please note: It is the Tenant's responsibility to be Informed of sign ordinances in his local area. Where governmental sign requirements are more restrictive than Landlord's criteria, governmental restrictions will prevail. Necessary sign permits shall be obtained at the Tenant's expense. In some cases, your sign company will provide ordinance information as well as obtaining necessary sign permits. Tenant will be held liable and bear all costs for removal/and or correction of signs; sign Installation and damage to the building because of signage installation that does not conform with Landlord's sign criteria. Upon Tenant's departure, Tenant will remove its sign and repair store front sign bank to its original condition. D. Tenant shall have sign installed and operating within sixty (60) days of the Rem Commencement Date. E. National or Regional Tenants: Landlord reserves the right to allow these Tenants to place their registered sign and trade mark on the fascia. 11. FASCIA SIGN: A. TYPE: One sign of Individual Channel Letters Internally Illuminated is allowed. B. DIMENSIONS: 1. Maximum overall height: 28 inches 2. Maximum overall length: 75% of the front footage of the store. (15 feet for a twenty foot storefront.) 3. Minimum letter height: one (1) foot. C. CONSTRUCTION: I. The casings will be fabricated from .050 aluminum. All letters shall have a white interior for an even distribution of lighting. The contour of the letter shall be approved by Landlord. All casing returns shall have a factory finish polyurethane coating. (Color as per Landlord.) Silva trill shall coordinate with letter color. 2. All letters will be faced with 3/16" acrylic supplied by the Rohm & Hass Company, or equivalent. 3. Each letter will have a diffused lighting effect for an even distribution of illumination. The neon tubing (size of tubes relevant to size of letter) will be as provided by the Corning Company with EGL electrodes (or equal) and with a proper vacuum and pressure of neon gas. The transformers powering the lighting system will be 60 milliamp for Increase illumination, and will be underrated 5% to compensate for voltage fluctuation and assure even light distribution. The electrodes will be housed In pyrex spring type units which will be protected from the elements. Secondary wiring will be accomplished by proper high tension cable and Ste-Con fasteners. All wiring shall be remote. All electrical must be U.L. approved and meet all local and state codes. D. BALANCE: I. Vertical: Unless stylized by design, capital letters will be spaced so there is an equal border on top and bottom of each letter with smaller case letters even with the bottom of the capital letter. 2. Horizontal: Letters will be evenly balanced from midpoint of the sign. 3. Logos: Must fit within the 23' height ;:dr:romem. E. OTHER: I. No flashing action, other mechanical animation, formed or injection molded plastic, or boxtype signs will be permitted. 2. Tenant's sign must be kept clean and in good operating condition at all times at T'enant's expense. 3. Content of signage shall be limited to Tenant's trade name and, at Landlord's discretion, logo only. 4. Lights may not be installed In the storefront to Illuminate signs, nor be installed in the sign to illuminate the storefront. III. MOUNTING: A. Mounting brackets are to be stainless steel fasteners to prevent staining of fascia. B. Mounting brackets are not to be exposed er 1w i;en. C. Signs are to be mounted for bird control. TENAN'1" S WORK The Landlord will provide Tenant with scale drawings showing the general features of the Demised Premises and locations of toilet room, air ducts, electrical outlets, and sprinkler system (if installed). Tenant shall submit for approval to Landlord Tenant's interior working drawings and plans prior to making any alterations or improvements to the Demised Premises. The Landlord reserves the right to approve such plans for the purpose of insuring such planned changes will not overload the existing electrical system, degrade die air flow, sprinkler system, or weaken the structural integrity of the Demised Premises or otherwise be detrimental to the Demised Premises or the adjoining stores in the Shopping Center, and to make sure that such plans conform to the architectural design standards of the project. Such approval shall not be unreasonably withheld and shall be promptly responded to by Landlord, landlord's contractor and/or architect. All Tenant's work shall be at Tenant's expense. All structural alterations such as plumbing, electrical work, additional walls or bathrooms, vents, grease traps etc., undertaken by Tenant will only be awarded to any operating licensed contractor approved by slate or local authority and whose livelihood is derived primarily from such work. Construction personnel hired by Landlord may be used by Tenant, at Tenant's expense, to complete some or all of Tenant's interior upfil, providing such additional employment will not conflict with the Landlord's completion of the Shopping Center and Tenant enters a separate agreement with the contractor. Landlord will not be responsible for or obligated to Tenapt or contractor to intercede on either parties behalf, should disputes arise over work or payment thereof. TENANT ADDITIONS: I.The following work shall be completed at Tenant's sole cost and expense within thirty (30) days of Delivery of Possession. Healine & Air Conditionine: Any and all ductwork, rooftop equipment or split systems not included in Landlord's Work. Plumbine: Any and all sprinkler and grease trap work required as a result of Tenant's Work, including the addition of partitions or anything interfering with Landlord's Work. Any and all fixtures and underground plumbing not described in Landlord's Work. Electrical: Any additional electric to the Demised Premises and/or any additional light fixtures, outlets and/or wiring, other than Landlord's Work. Kitchen Equipment: (a) Any and all kitchen equipment shall be installed in accordance with all governmental codes, rules, laws, regulations or ordinances, including but not limited to, building, health and fire codes, and Including, but not limited to, such equipment as grease traps or dry sprinkler systems as required. (b) Any cooking equipment that requires hoods and/or vent fans which penetrate through the roof or any exterior wall shall have an exhaust system with make-up air. ggsj: (a) Any and all work affecting the roof, including but not limited to, penetrations and anchorages shall be performed by Landlord's roofing contractor (at Tenant's expense). (b) Tenant shall protect the roof from all grease, chemical or other emissions in a manner approved by Landlord and Landlord's roofing contractor or warrantee company so that Landlord's roof warranty is not compromised. 2. The following work, should Tenant desire, shall be done at Tenant's expense. a. Installation and service cost of telephone. b. Installation of intercom, radio or T.V. and associated wiring. C. Ceiling light covers not standard to project. d. Display window platforms, elevated floors, room partitions or special rooms. C. Store signs. f. Automatic doors. g. All interior walls and curtain wall within the Demised Premises except as provided by Landlord's work. h. All signs in or on the Demised Premises including construction, furnishing and installation. No sign shall be erected without prior written approval of the Landlord or Landlord's architect. )THER: Tenant may add to this list at Tenant's discretion, so long as any such improvements are coordinated with tine Landlord beforehand. The undersigned contractor, materialmen or other entity or person furnishing services, labor or materials, known as , a Pennsylvania (the "Contractor") intending to be legally bound, and in consideration of the sum of ONE AND NO1100 DOLLARS ($1.00) to it in hand paid by a Pennsylvania ("Owner") the receipt whereof is hereby acknowledged, for Itself and any subcontractors, materialmen, laborers or anyone else acting through or under it, covenants and agrees that no mechanics or materialmen's liens or claims shall be filed or maintained by it, them or any of them, against the real estate described in Schedule "A", attached hereto and made a pan hereof, or against any buildings or other improvements thereon (jointly and severally, the "Real Estate"), for or on account of any work to be done or materials furnished under the principal contract between Owner and Contractor, dated , 19_, or under any supplemental contract, verbal or written, or contract for extra work or materials relating to and work to be done or material furnished under sail principal contract. The undersigned, for itself, its subcontractors, materialmen, laborers and anyone else acting or claiming through or under it, hereby waives and relinquishes all right to file a mechanics' lien, claim or notice of intention to file any lien or claim against Ilse Real Estate. The undersigned, for itself, its subcontractors, materialmen, laborers and anyone else acting under or through it, hereby Irrevocably authorizes and empowers any attorney of any court of competent jurisdiction of the Commonwealth of Pennsylvania, or elsewhere, to appear as attorney for it, them or any of them, in any such court and, in its or their name or names, mark satisfied of record at the cost and expense of the undersigned, any and all claims, liens, any pleading or instrument, or ally amendment to any pleading or instrument previously filed by it or them, to incorporate therein as part of lire record this waiver and for such act or acts this waiver shall be good and sufficient warrant and authority, and the undersigned for itself, and for them, does hereby remise, release and quitclaim all rights and all manner of errors, in filing such pleading, instrument or amendment, or in any way concerning them. Owner shall have the absolute right in its name or in the name of the undersigned or any other entity or person who shall have filed a claim or lien, to cause any and all such claims or liens to be discharged by any other instrument, pleading or proceeding permitted at law or in equity. The undersigned hereby avers, represents and warrants that no work has commenced on the Real Estate and no labor or materials have been delivered to the Real Estate or furnished for the improvement of the Real Estate by the undersigned or by any subcontractor, materialmen, laborer, or other person or entity, and that no authorization has yet been given by the owner to the undersigned to commence work or purchase materials in connection with the Real Estate. This stipulation is made and intended to be filed with the County Prothonotary in accordance with the requirements of file Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the undersigned ha's caused this instrument to be duly executed as of the _ day of , 199. ATTEST: By: Name: Title: (CORPORATE SEAL) WITNESS: CONTRACTOR: By: Name: Title: [OR] CONTRACTOR: (SEAL.) 171177 FIr.ZA.ISa 2117196 0.43p.) ?<idi been Ided. +All have railed beca use boy containment Systems up Wsl, water and the glossa Is pushed onto the roof, only Grease Guard collects, traps, and holds grease In the worst weather condillonol ffy ?yy Homart Development Company ??]]LL1111 glrectorof Maintenance 'Sandboxos, plokle buckets, rock boxes, and special membranes all fallod miserably. A Grease Guard prease containment system has proven to be the only effective solution to our problems: Grease is the number one cause of rooftop damage In the restaurant Industry. Unfortunately, no matter how good your rooftop warranty la, II doesn't cover damage from grease. This is why you need a Grease Guardl Gres" Guard traps grease before II has a chance to destroy your roof and void your warranty. NORML11chiso Burger King Owner 'Grease Guard Is the guarantee the roofing company wouldn't give ma.* in every case Iho turned Me ntyst be replaced • an expensive rgpair that can be prq'vented by installing a Grease Guq'rd. Grease also cl s rooftop drains causing ponding water and floogling, weakening the structure of the fool deck. r U.S. Intact Roofing Products Teohnlosl Manager 'Grease attacks, and ulllmatelydestroys, every type of roof on the market. Until Grease Guard there has never been a system to remedy this problem.' RO Fuddruokers V.P. Construction `I've been replacing grease damaged roofs for years. During that time I've tried everything to keep greaso from d4slroying my roofs. The only thing I've found that slaps the problem to the Grease Guard system. Gnus. Guard really worksl' _....' --••'•--.y' ••.'o. u,vnma uwa ru yuur fool and Iho answer will always bn the same: Grease deelroys your roof) The quality of the membrane or the installation mnlhod does not make a difference. Hare's how grease effects different tooling systems: A simple roof repair can cost $3,000, while a now roof con cost $60,000 or more. Whon you wolgh ilia cost of ongoing (possibly annual) roof repairs with Ilia cost of a Gresse Guard, your decision Is obvious: Grease Guard emves both your roof and your bollont 111101 RR RSI Rooting Magazlns 'Anyone who walks on a greasy roof, and then attempts to climb down a ladder, or slips near the root edge, exposes himself to risk of serious Injury or death' I Guardlan Restaurant Fire Protection President 'We dean some of our customers' exhaust systems as often as once a month and their rooftops are still greasy and damaged. Grasse Guard Is the only solution to rooftop grease problems.' v„ ,,,a bv,oa u, bnuus is an open invitation to riooltOp gresss Is Inevitable, No multor how often your ' accidents, insurance claims and lawsuits. Grease exllausl ayalam Is serviced, damaging grease will and on your roof Is as dangerous as grease on your up on your roof, Grassa Guard catches the grease that kitchen Iloors. even proper exhaust cleanings can't prevent. In most cases a Grease Guard system can be Installed In two hours or less, and requires only a few hours of service each year, Our national network of more than 350 authorized servicing contractors have the training and experience to properly Install and ear. vice your Grosse Guard system. Protecting your roofing Investment Is easy. Simply call your local Authorized Servicing Conlractor for a free rooftop evaluation. It a rooftop grease problem exists, the contractor will recommend the size and style that meets your needs. More than a product, Gres" Guard offers these Important sarvlcss: • Consulting and Troubleshooting • National Account Program • National Retrofit Program • Nationwide Installation • Leasing Program • Tolf-Frea Technical Hollins R Chill's We've been using Gnase Guard for yeears?The lallonal retroill program and the network of authorized ser• Icing contractors has mode Graeae Guard a cosl•alloc- ve, and efficient way for us to protect all of our roofing rvealmenls' Services Available In Canada and Pueno Rico Customized Services Designed to Meal Your Needs 9V CALL TODAY! 1-800.284-8273 RR 1 Simply check the condition of the fillers each quettor. Depending on the nature of the lood and the amount of coohing. the middle filler should be replotted when saturated (about ovary 8.12 months). -- : ? 1 . 11. Under normal conditions, the lop filler ^. f will last a year or more. Grease Dolleoling First Absorbent layer. UV alabte and Flame Retardant filler that gape ep large debris. 8eoond Absorbent Layer • All grotto that flows through the Hot layer Is absorbed al INS stage. The Atlas Also ode as a repollanl to rxln• waist. When It faire, the grease is hold In the Nter, while the water posses onto line fool. r Frame . Anodlzod aluminum extrusion that Is Impervious to all weather oonulilone. Modal No.. f I I 1 I I Security Dyer: Filler that has e polyurFPNaM lining that allows nothing to pate through h. Unit Sizes and Air Flow Layer • Keeps absorbent fillet above any standing water while Allowing sir to drwtste properly throughoul the Greaes Guard. Many Major Restaurant Chains Are Currently Protecting Their Roofing Investments With The Grease Guard. Some of the National restaurant chains Include: Chills TGI Friday's Fuddrudrere Applabees Burger King Ground Round Ruby Tuesday Chevy's Mexican ; flat r.r ' .r K .J Blandard Grease Ouard • Use Wllh Typical Upblasl and Downblut Fans Bpedlylnp A Blandard Grease Ouard 1.Oeurmine me outside Curb dimension •A' shown loft. P. Determine Ill model number by malWrp dimension A'belwesn lha proper minimum and maximum curb sizes shown below. { t I .Model I_ almenolon W I A "A O072 1 41' min to 62' Max Cullom fit OrYN Guard • Use With i. Uerarnwre IM leoplh, dlmsnebn'A', - whkh Is do overall lenpm rk the fan and curb. 8110ueballon Is". 2. Dolarmine r1N modal number by malct kV c"nelon W between the prgwr mrnWwf and max411um curb tires shown below. ??Jv.•tt' PIIchad Root Make-up I Alr Byelem 91dawall Unlt WD w OFFICr or rHr SHERIFF r?u cONr t?R SEP 30 2 ss PH 199 G W, , - ,_c PENNS'11 vn,via LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. NO. t q ` 7 ?? I J.M.R. FOODS, INC., d/b/a CIVIL ACTION - LAW LITTLE CAESAR'S PIZZA, Defendant NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and ajudgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association TRM GWY FROM RECp 2 Liberty Avenue IIrnTY.nt?" whereat, I hefe UM 10 MY w Carlisle, Pennsylvania 17103 /te e L Carp !e, pa Telephone: (717)249-3166 II !w AVISO WSTED HA SIDO DEMANDADO/A en corte. Si usted desea defenderse de las demandas que se pWentan mas adelante en Ins siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquiersuma de dinero reclamada en la demanda o cualquier otra reclarracion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO IMMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO 0 NO PUEDE PAGARLE A UNO, LLAME 0 VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. Cumberland County Bar Association 2 LihertyA venue Carlisle, Pennsylvania 17103 Telephone: (717)249-3166 McNEES WALLACE & NURICK B Y F. Stephenson Matthes Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: ? - I b - A 1 LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant NO. CIVIL ACTION - LAW COMPLAINT Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership ("Plaintiff'), is a New Jersey corporation, with authority to do business in the Commonwealth of Pennsylvania, with its principal place of business at 893 Route 22 West, North Plainfield, New Jersey 07060. 2. Defendant, J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza ("Defendant") is a Pennsylvania corporation with its principal place of business at 5012 Lenker Street, Mechanicsburg, Pennsylvania 17055. On or about March 8, 1996, Defendant entered into a Lease Agreement with Carlisle Marketplace Limited Partnership, predecessor in interest to Plaintiff ("Lease") for its business known as Little Caesar's Pizza at the Carlisle Marketplace Shopping Center in Carlisle, Cumberland County, Pennsylvania. Attached hereto as Exhibit "A" is a true and correct copy of the Lease. 4. The Lease was duly executed by Defendant, who agreed to be legally bound by the terms of said Lease. 5. The Lease provides that Defendant shall pay monthly rent and Defendant's pro 4 rata share of insurance, taxes and operating costs, as well as all other charges accruing under the Lease or identified as additional rent, on the first day of each calendar month during the term of the Lease. 6. On or about June, 1999, Defendant terminated its business operations and removed all of its property from the Carlisle Marketplace Shopping Center. 7. Pursuant to Section 4.2 of the Lease, Defendant was obligated to continuously operate its business at the Carlisle Marketplace Shopping Center for the term of the Lease. 8. Defendant has willfully failed to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease for the subject premises. 9. Defendant's failure to pay rent and other charges as per the terms of the Lease constitutes a material breach of the Lease. 10. The aggregate sum due and owing under the Lease, as of August 23, 1999 is Sixty-Four Thousand, Six Hundred and Sixty-Six Dollars and Thirty-two Cents ($64,666.32), exclusive of attorneys' fees. 11. Pursuant to the Lease, Defendant waived its rights to notice upon default and acceleration of the terms of the Lease. 12. Section 15.2 of the Lease provides that, in the event of default, Plaintiff may terminate the Lease without notice to Defendant and Plaintiff is entitled to collect rent and charges equivalent to rent reserved in the Lease for the remainder of the stated terms, together with actual and reasonable attorney's fees. 13. Pursuant to the Lease, Plaintiff has accelerated the Lease. 14. As of August 23, 1999 the amount due under the Lease is Sixty-Four Thousand Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees. 15. Defendant's failure to pay minimum rent, additional rent, late payment charges and certain other charges payable to Plaintiff under the Lease provides Plaintiff with the authority to file this Complaint. WHEREFORE, Plaintiff, Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership, demands judgment against J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza in the sum of Sixty-Four Thousand Six Hundred Sixty-Six Dollars and Thirty-two Cents ($64,666.32), which consists of a past due balance as of July 31, 1999 in the amount of Twelve Thousand Nine Hundred Fifty-Six Dollars and Ninety Cents ($12,956.90), additional minimum rent through the Lease term in the amount of Forty-Two Thousand Six Hundred Twenty-Four Dollars and Forty Cents ($42,624.40), monthly maintenance charges through the Lease term in the amount of Five Thousand Four Hundred Thirty-Seven Dollars and Sixty-six Cents ($5,437.66), monthly real estate taxes through the Lease term in the amount of Two Thousand Six Hundred Fifteen Dollars and Thirty-three 4. r 4. Cents ($2,615.33), insurance through the Lease term in the amount of Two Hundred Seventy- Five Dollars and Eight Cents ($275.08), and late charges through August 23, 1999 in the amount of Seven Hundred Fifty-Six Dollars and Ninety-five Cents ($756.95), plus actual attorney's fees and all costs of suit, any pre judgment and post judgment interest, as any other amounts Plaintiff may be entitled to collect under law or in equity. McNEES, WALLACE & NURICK By F. Stephenson Matches " Attorney I.D. No. 67408 100 Pine Street P. O. Box 1166 Harrisburg, Pennsylvania 17108-1166 (717) 232-8000 Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership Dated: '1.11, `)I 4. I, Evelyn S. Leonard, Vice President and General Counsel of Levin Management Corporation, agent for Falk US Property Income Fund , L.P., successor to Carlisle Marketplace Limited Partnership, am authorized to verify this Complaint on its behalf and further; the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. The undersigned understands that false statements herein are made subject to the penalties of IS Pa. C.S.A. §4904, relating to unworn falsification to authorities. BY: Levin Management Corporation, agent for Falk US Property Income Fund , L.P., Successor to Carlisle Marketplace Limited Partnership By: I/ ? dZ01 s?? Evelyn S. Leonard, Vice President and General Counsel Dated: September 15, 1999 TOTAL P.02 Exhibit A 1 .. CARLISLE MARKKEPLAC SHOPPING CENTER STORE LEASE Ift ,LM_..I ,FOODS. IN-r„ Ila LI i FLE .A C R'4 PI .':A ARTICLE 1 - GRANT AND BASIC TERMS Section 1.1 - Basic Data Section 1.2 - Construction of Demised Premises Section 1.3 - Demised Premises Section 1.4 - Acceptance of Demised Premises Section 1.5 - Term of Lease Section 1.6 - Option to Extend Section f.7 - Landlord's Termination Right ARTICLE 1111 - RENT' Section 2.1 - Annual Minimum Rent Section 2.2 - Commencement of Rent Section 2.3 - Taxes Section 2.4 - Common Area Maintenance Charges Section 2.5 - Percentage Rent Section 2.6 - Late Charge Section 2.7 - Definition of Additional Rent ARTICLE 11111 - PERCENTAGE RENT Section 3.1 - Gross Sales Reporting and Percentage Rent Payment Section 3.2 - Gross Sales Section 3.3 - Record Keeping Section 3.4 - Audit ARTICLE IV - USE OF DEMISED PREMISES Section 4.1 - Tenant's Use Section 4.2 - Continuous Operation Section 4.3 - Radius of Operation Section 4.4 - Utilities Section 4.5 - Signs Section 4.6 - Affecting Tenant's Business 5 ARTICLE V - COMMON ARRAS Section 5.1 - Monthly Common Area Maintenance Charges Section 5.2 - Definition of Common Areas Section 5.3 - Common Area Operating Costs Section 5.4 - Control of Common Areas 7 ARTICLE VI - CONSTRUCTION AND ALTERATIONS Section 6.1 - Landlord's Construction Section 6.2 - Tenant's Alterations Section 6.3 - Builder's Risk Section 6.4 - Tenant's Discharge of Liens 8 ARTICLE VII - MAINTENANCE AND REPAIRS Sectiot. 1.1 - Landlord's Obligations Section 7.2 - Tenant's Obligations Section 7.3 - Surrender of Demised Premises 9 ARTICLE Vlll - INSURANCE AND INDEMNITY Section 8.1 - Casualty Insurance Section 8.2 - Waiver of Subrogation Sectir n 8.3 - Increase in Fire Insurance Premiums Section 8.4 - Liability Insurance Section 8.5 - Rental Interruption Insurance Section 8.6 - Indemnification of Landlord Section 8.7 - Plate Glass Section 8.8 - Landlord's Mortgagee 4; 10 ARTICLE IX - SUBORDINATION, NOTICE, ESTOPPEL AND ATTORNMENT Section 9.1 - Subordination Section 9.2 - Notice to Landlord Secticr. 9.3 • Estoppel Cen:i -..te Section 9.4 - Allomment Section 9.5 - Assignment of Rents 1 t ARTICLE X - ASSIGNMENT AND SUBLETTING Section 10.1 -Consent Required 12 ARTICLE XI - WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES Section 11.1 - Waste or Nuisance Section 11.2 - Insurance Requirements Section 11.3 -Hazardous Substances Section 11.4 - Government Permits Section 11,5-Survival 13 ARTICLE Y-:7 - ADVERTISL'+9J AND PROMOTIONAL PROGRAM Section 12.1 - Advertising and Promotional Program 14 AR77CLE XIII - DESTRUCTION Section 13.1 - Total or Partial Destruction Section 13.2 - Partial Destruction of Shopping Center Section 13.3 - Tenant's Restoration Section 13.4 - Substantial Damage 15 ARTICLE XIV - EMINENT DOMAIN Section 14.1 - Condemnation Section 14.2 - Restoration of Demised Premises 15 ARTICLE XV - DEFAULT OF TENANT Section 15.1 -Default Section 15.2 - Remedies Section 15.3 - Additional Rent Section 15.4 - Guarantors Section 15.5 - Bankruptcy or Other Default Section 15.6 - Failure to Pay, Interest 18 ARTICLE XVI - ACCESS BY LANDLORD Section 16.: - Right of Entry 18 ARTICLE XVII - TENANT'S PROPERTY Section 17.1 - Taxes on Leasehold Section 17.2 - Loss and Damage Section 17.3 - Notice by Tenant 19 ARTICLE XVIIi - HOLDING OVER, SUCCESSORS Section 18.1 - holding Over Section 18.2 - Successors and Assigns 19 ARTICLE XIX - QUIET ENJOYMENT Section 19.1 - Landlord's Covenant 19 ARTICLE XX - MISCELLANEOUS Section 20.1 - Pvaiver Section 20.2 - Accord and Satisfaction Section 20.3 - No Partnership Section 20.4 - Force Majeure Section 20.5 - Landlord's Liability Section 20.6 - Notices and Payments Section 20.7 - Financial Statements Section 20.8 - Guarantors Section 20.9 - Captions and Section Numbers Section 20.10 - Definitions Section 20.11 - Partial Invalidity { Section 20.12 - Recording Section 20.13 - Entire Agreement Section 20.14 - Survival Section 20.13 - Applicable Law Seclic7. 7C t6 - Consents and Approvals Section 20.17 - Authority Section 20.18 - When Lease Becomes Effective Section 20.19 - Interpretation Section 20.20 - Brokers Section 20.21 - Landlord's Fees and Expenses Section 20.22 - Other Agreements Section 20.23 - Shift Clause 22 ARTICLE XXI - SECURITY AND RENT DEPOSITS Section 21.1 - Amount of Security Deposit Section 21.2 - Use and Return of Security Deposit Section 21.3 - Rent Deposit 23 ARTICLE XXII - TENANT COVENANTS, EASEMENTS Section 22.1 - Tenant Covenants Section 22.2 - Easements A. Demised Premises A-I. Legal Description of Shopping Center B. Landlord's Work C. Intentionally omitted D. Rules and Regulations E. Sign Criteria F. Tenant's Work 1 THIS INDENTURE OF LEASE Is made as of the day of M17/ j7 199L. by and between the landlord named in Section 1.1(0) (hereinafter referred to as the 'Landlord anthenant named in Section I.I(A) below (hereinafter referred to as the ("Tenant'). ARTICLE 1; GRANT AND BASIC TERMS 1.1 BASIC DATA: The following sets forth basic data hereinafter referred to in [his Lease, and, where appropriate, constitute defud8ons of the terms hereinafter listed. A. TENANT: J.M.R. Foals, Inc., a Pennsylvania corporation with an address of 5012 Lenker Street, Mechanicsburg, Pennsylvania 17055 B. TRADE NAME: Little Caesar's Pizza C. SHOPPING CENTER NAME: Carlisle Marketplace Shopping Center D. DEMISED PREMISES: For [he purposes of this Lease the Demised Premises is agreed to be as shown on Exhibit "A" with approximately 1,600 square feet E. ORIGINAL TERM LENGTH: Five (5) years F. OPTION(S) & LENGTH: Two (2) optional terms of five (5) years each G. MINIMUM RENT: Year(s) 1-2 ® $1,733.33 per month, $20,800.00 annually rtt. <18 Year(s) 3.4 @ $1,820.00 per month, $21,840.00 annually -18 0 0 YPTr 5 (m $1,883.7n ndr month, $22,604.40 annually oo - n t H. ESTIMATED FIRST YEAR PRORATA CHARGES AT COMMENCEMENT OF LEASE (SUBJECT TO ADJUSTMENT OVER TERM OF THE LEASE): (i) Taxes: $152.49 per month $1,829.88 annually (ii) Common Area (including insurance): $105.14 per month $1,801.68 annually Totals $302.73 per month $3,631.56 annually Percentage of overall Taxes, Insurance and Common Area Maintenance Charges ("T.I.C. ") initially payable by Tenant to be determined in accordance with Sections 2.3 and 5.1 hereof. 1. PERCENTAGE RENT: None J. OPTION PERIOD RENT: MINIMUM RENT: First Option Period: Year(s) 6-7 ® $1,949.63 per month, $23,395.56 annually Year(s) 8.9 ® $2,017.87 per month, $24,214.44 annually Year 10 ® $2,088.50 per month, $25,062.00 annually Second Option Period: Year(s) 11.12 @ $2,161.60 per month, $25,939.20 annually Year(s) 13-14 ® $2,237.26 per month, $26,847.12 annually Year 15 ® $2,315.56 per month, $27,786.72 annually PERCENTAGE RENT: None K. SECURITY DEPOSIT: None L. Is1 MONTH RENT DEPOSIT: $2,036.06 (includes T.I.C.) M. USE CLAUSE: To be used for the sale at retail of foal and beverages and other related promotional items customarily sold in other Little Caesar's establishments throughout the continental United States, provided that the primary product shall be pizza, and for no other purpose. N. GUARANTOR(S): None 0. LANDLORD: Carlin!.; M,tKetpmce Limited P.rlnership, -/r?Ahoid Rcal Estate Company, 333 North Main Street, West Hartford, CT 06117 A For Paymetits Only To: Carlisle Marketplace Limited Partnership, c/o Ahold Real Estate Company, P.O. Box 40,000, Dept. 816, Hanford, CT 06151-0816 REALTOR: Wargo Properties, Inc. 1.2 CONSTRUC ]ION OF DEMISED PR MISS; 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 tine event Landlord's work :s 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 canceling 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. 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 stropping center commonly referred to as Carlisle Marketplace Shopping Center (the "Shopping Center") located in Carlisle, Pennsylsania and rno:.r ;ccuralcly 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 pan and further reserving to the Landlord the right to place in the Dernised 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 D 7MIS .D PR .MLM: Tenant agrees to accept the Demised Premises "as is", without warranty or representation of any kind, express or implied, on die pan of landlord, provided landlord substantially completes the Demised Premises substantially In conformity with the terms and conditions set forth on Exhibit "B" attached hereto and made a part hereof ("landlord's Work"). 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 die Shopping Center; (b) change or modify ingress and egress routes; and (c) add additional land or buildings or both to the Shopping Center. 1.5 TERM OF LEASE: TO HAVE AND TO HOLD the Demised Premises unto the Tenant for the term specified in Section I.I(E) hereof unless sooner terminated as provided herein, commencing on the Rent Commencement Date as set forth in Section 2.2 hereof. If the Rent Commencement Date is other than the first day of the month, [lie first lease year shall be extended to include such partial month such that die first lease year shall end on the last day of the month in which the first anniversary date of the Rent Commencement Date occurs. The parties hereto agree, upon demand made to the other, to execute a supplemental instrument expressing the Rent Commencement Date when the Rent Commencement Date has been determined. 1.6 OPTION TO EXTEND: Tenant shall have the option to extend the term of this Lease for an additional term of years as set forth in Section 1.1 (F) under the same terms and conditions contained herein except that the Minimum Rent shall be as specified in Section 1.l(J). The option to extend is conditioned upon Tenant during [Ire original or [lien current term (I)not having been in default more than three limes during the then current term as defined in Section 15.1 of this Lease; (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 die original or then current term and (3) Tenant giving Landlord written notice of Tenant's election to exercise the option terra at least six (6) months prior to the end of the [hen current term. There shall be no further right to extend the term of this Lease. 1.7 LANDLORD'S TERMINATION RIGIIT: (A) Giant Food Stores, Inc, has the option to expand its store after the fifth year from the dale of its store opening into an area which includes the Demised Premises (the "Expansion Area"), which right may be exercised during the term of the Lease (or an option period thereof) granted herein. Notwithstanding anything to the contrary contained herein, should Giant Food Stores, Inc. actually exercise such right, Landlord may terminate this Lease upon four (4) months notice and Tenant agrees to vacate the Dc :.ed Chemises on or :%Jcre the expiration of said four (4) month period. -5- (B) if Landlord has other similar space within the Shopping Center available that would accommodate the relocation of Tenant during said four (4) month period, then Tenant shall have the option of relocating into such space within thirty (30) days of the later to occur of (i) Tenant receiving notice from Landlord of the availability of such space, or (il) such relocation space actually becoming available for Tenant to move in. In no event shall any such relocation delay the surrender of the existing Demised Premises beyond the end of said four (4) month period. Tenant shall have five (5) business days after receipt of Landlord's notice that relocation space is available to elect to relocate, thereafter, this relocation provision shall be null, void and of no effect whatsoever. If Tenant elects to relocate in accordance herewith, this Lease shall not terminate, but shall be amended to reflect the relocation of die Demised Premises and Landlord shall reimburse Tenant for one-half of the cost of Tenant's leasehold improvements and moving expenses, up to a combined maximum of twenty-five thousand ($25,000.00) dollars, within thirty (30) days of receipt of Tenant's request therefor, accompanied by adequate proof of such expenditures, a permanent certificate of occupancy for the relocated Demised Premises and lien waivers from Tenant's contractors. The relocation provision contained in this Section 1.7(B) shall only be effective during the original term and thr lira optional term el :hts lease, and shall thereafter be null, void and of no effect whatsoever. ARTICLE II: RESET j 2.1 ANNUAL M INIMLln4 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 for payments in Section 1.1 (O) or at such place as the Landlord shall from little to time designate in writing. The first such payment is to be made on the Rent 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 21.3 hereof, then such amount as Tenant shall have deposited will be credited by Landlord against any amounts due hereunder for Minimum Rent upon the Rent Commencement Date. Any fractional part of a month shall be prorated and payable in advance. 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 L I (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 COMMENCEMENT OF RE : TThe "Delivery of Possession" shall be die earlier of (a) the date that Tenant obtains possession of the Demised Premises from Landlord, or (b) rile date that Landlord notifies Tenant in writing that the space is substantially complete and Tenant may install its fixtures and improvements. The "Rent Commencement Date", which establishes the date from which the term of the Lease is measured and upon which Tenant is obligated to pay Minimum Rent, shall be the earlier of (a) ninety (90) days after Delivery of Possession; or (b) the date that the Tenant first opens for b^siaesr in the Demi:.d Premises. "Substantially complete" as used herein means the work to be 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. 2.3 TAXES: Front and after the Rent Commencement Date, Tenant shall pay to Landlord as Additional Rent its proportionate share, expressed as a percentage as set forth in Section 1.1 (11), 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 lime 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). Notwithstanding anything to the contrary contained in Section 1.1(11) hereof, "Tenant's proportionate share" is a fraction, the numerator of which is the gloss leasable area of the Demised Premises and the denominator of which is the gross leasable area of the Shopping Center as of die first day of each applicable tax year during the tenth 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 appticacre to Real Estate faxes on a monthly basis, along with the monthly Minimum Rent. Initially, such monthly payments shall be as set forth in Section 1.1(11). 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 die 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 Real Estate Taxes are more than Landlord's estimate, Tenant shall pay such excess within thirty (30) days of receiving a detailed statement from landlord. Landlord, at Landlord's option, may obtain separate taxable status for the Demised Premises, and in such even[, Tenant shall pay 100% of such taxes as Additional Rent. If requested by Tenant, Landlord shall provide copies of tux bills to'renant. Additionally, with respect to taxes: (A) RIGHT TO CONTEST ASSESSMENTS: Landlord may contest any and all Real Estate Taxes. The cost of any such contest shall be paid as Additional Rem in die same proportionate share as die Real Estate Taxes are paid and any refund or recovery shall In shared in the same proportionate manner. Tenant shall have no right to contest Real Estate Taxes or assessments without the prior written consent of landlord. .6- (B) REAL WrATE TAX: Real Estate Taxes 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 [lie Shopping Center or land upon which the Shopping Center is located; (ii) any tax imposed upon the Shopping Center by any stale, county or local governmental authority including without limitation all school district taxes; (iii) any lax on the Landlord's right to receive, or the receipt of, rem 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 or in addition to, in whole or in part, any tax previously included within the definition of Real Estate Taxes. 2.4 COMMON AREA MAINTENANCE CHARGES: Commencing upon the Delivery of Possession and thereafter on the first of each month Tenant will pay Landlord as Additional Rent, one-twelfilh (1/12) of Tenant's proportionate share of the annual common area operating costs, as more fully set forth In Article V hereof. 2.5 PERCENTAGE RENT: Intentior..4y ^.nitted. 2.6 I.A .LIAR .E: 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. 2.7 DEFINITION OF ADDITIONAL REM P: Without limiting any other provision of this Lease, it is expressly understood and agreed that 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, Late Charges 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 die 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 die other covenants, conditions and obligations of eider party to [his Lease. ARTICLE III: PERCENTAGE R .NT' 3.1 GgOSS SALES REPORTING AND PERCENTAGE RENT P? AIMENT: Intentionally omitted. 3.2 ROCS SALES: Intentionally omitted. 3.3 RFCORD KEEPING: Intentionally omitted. 3.4 AUDIT: Intentionally Omitted. ARTICLE IV: USE OF DEMISED PREMISES 4.1 TENANT'S US : Tenant shall use the Demised Premises solely for the purposes set forth in Section I- I(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 die Demised Premises or the recessed vestibules, if any, of the Demised Premises for business purposes (including, withou! 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 Dunised Premises clean and shall keep [lie 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 (lie 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 rimes keep the Demised Premises fully and adequately stocked and fhxtured. The Tenant shall devote die 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 Deniscd Premises will abide by all reasonable rules and regulations from time to time established by the Landlord by -7- written notice to the Ti n oil with respect to such Shopping Center, a current copy of which are attached herein as Exhlbll "D", bill which are subject to change at Landlord's reasonable discretion. 4.2 CONTINUOUS sl' ' ATLM: Tcnam shall continuously operate and keep open to the public the entire Denriscd Premises lo god falth for the duration of the pease term front Monday through Saturday during the hours of 11:00 AM to HO) PM, mid such other horns as a majority of the other icnanls of the Shopping Center shall remain open, provided that Tenant loll not be obligated to be open for business prior to 11:00 AM or after 10:00 PM. Tenant will carry a complete stock, of i erchnn,11,e. maintain an ar!: Qnl,!s staff including a qualified store manager headquartered at the Denriscd Premiscs to accommodate customers and at all times promote the business through advenishig and display of merchandise so as if) produce the maximum Gross Sales possible. Tenant may open at earlier hours or close at a pater time and open nn Sunday, providing such opening is not in violation of any local govenuneut d ordinance or paw. Tenaul cony also close tin major nationally recognized or religious holidays and for periodic Inventory. It Is Ingomant ur the success of a Shopping Center that all lenants have uniform days and hours of operation. Tentu l acknowledges that this obligation Is a material and significant inducement to the Landlord to enter into this Lease find Tenant agrees hr abide by the hours and days of opening specified herein or be in violation of this Lease. 4.3 RADIUS OF Oi!LeRKFION: Tennnl, 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 one-hnlf (A) mile front the Shopping Center during the term of this Lease. This radius clause does not apply to businesses of Tcnant currently open and in operation within said radius at the time this Lease is executed, 4.4 1'IlP 1.1'1'IIs: Tenon agrees to pay for Tcnanl's use of all of its requirements for utilities, including but not lim;led to, electricity, gas, sewer, heal, water and all other utilities and taxes or charges for such utility services which are used by (it attributable to the Denied Premises front 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 sane 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. 4.5 EMS: Landlord has esurbllshed a uniform levant sign criteria (see Exhibit "E") for Ilse Shopping Center. Tenant will not, without first obtaining Landlord's consent, place on any exterior door, wall, window, roof or fascia of the Denriscd 14enrises, any sign, awning, canopy or advcrlisennent or other such matter including decorations and light ournctluns. Approved signs and approved advertisements shape be installed at Tenant's expense and maintained al app limes In n good condition. It "'tenant '; stalls any sign not r-c?'iously approved by Landlord that does not meet Landlord's sign criteria, I.nndlord shall have the authority, without liability, to remove and store the sign, at Tenant's stile expense and fit Tcounl's risk, if'I'cumu fails to voluntarily remove the sign within seven (7) days after receiving written nulificallun from Landlord of the violation. Expenses incurred by Landlord for removing and storing 't'enant's sign shall lie immediately pald 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, constnhcts or renovates the Demised Premises or other premises within the Shopping Center which adjoin the Demised lionises, upon giving Tennot seven (7) days advance written notification. Attached hereto as Exhibit E-I is a copy of Tenant's ordinary sign specifications which qj- ;.:•ndlord hereby act'owledges and approves. 4.6 AFFECT NG TENANT'S BUSINESS: If Landlord leases a store in the Shopping Center to a Direct Competitor, as herchudler dclincd, of Tenant and Tenant's gross income for the six (6) months after the opening of the Direct Conipcllor for business Is demonstrably reduced by twenty percent (20%) or more from Tenant's gross Income for the six (6) months prior to said Direct Competitor's opening for business, then Tenant may terminate this Lease upon two (2) months notice. The tern "Direct Competitor" shall mean a business which derives over seventy (70%) percent of lux gross Income form either take-oat or delivery pizza. However, nothing contained herein shall be deci ed u) prohibit any other tenant in the Shopping Center from dealing or displaying merchandise or services which arc the sane or similar no dose sold or displayed by Tenant hereunder, so long as such sale or display by such (filter lemon Is inchicnud bit its main line of business. Notwilhsla ding anything to the contrary contained herein, the foregoing provisions shall not be applicable to (i) the lirentisex presently demised ill Giant Food Stores, Inc., Revco Drug Stares or (ii) any tenant of the Shopping ('enter occupying in excess (if 15,000 square feet of leasable area. This section shall be null and void upon the happening of either: (a) cessation by Tenant of the use of the Demised Premises for ire purposes permitted under Iris Lease; or (h) it default by Tenant of any of its obligations hereunder, which is not cured within any applicable grace or cure petiod titter written nulice thereof by Landlord. The Tenant shall indemnify and hold Landlord harmless against 4111 liability null expenses including reasonable attorney fees resulting from the Landlord granting Tenant the nights eel forth under this Secllun 4.6. ARTICLE V: COMMON ARRAS 5.1 MONTHLY COMMON AREA MAINTENANCE CIIARGES: Initially, Tenant's monthly contribution Inwards its proportionate share of annual common area operating costs shall be as set forth in Section 1.101). -8- Notwithstanding anything to the contrary contained in Section 1.101) hereof, "Tenant's proportionate share" is a fraction, the numerator of which is tta gross lea?db,c area of the Dcmised Premises and the denominator of which is the gross leasable area of the Shopping Center from time to time. However, Landlord may (without obligation, and in landlord's sole and absolute discretion) allow or permit a tenant (or tenants) within the Shopping Center to assume and discharge certain common area maintenance obligations with respect to specific portions of the Shopping Center common areas. In such event, the square footage of the space occupied by such tenant(s) may be deducted from the foregoing denominator for purposes of calculating Tenant's proportionate share of common area operating costs (which costs shall not include those obligations assumed by said tenant(s)). Further, 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 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 term of this Lease is expiring, 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 front Landlord. Upon request, Landlord shall supply Tenant with copies of all bills and receipts for she common area operating costs. 5.2 DEFINITION OF COMMON 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 tike 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 die cost of maintaining these areas for the benefit of the Shopping Center. 5.3 COMMON AREA OPERATING COSTS: 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 healing and air conditioning thereof), utilities and facilities serving the Shopping Center (including off-site utilities and facilities such as retention 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 easement agreement affecting the Shopping Center, or to fulfill any obligations arising under such an easement agreement. Such costs and expenses shall likewise include (but shall not be limited to) water and sewer charges; utility system installation charges and asses:<aews, costs of all roc.,' twd other maintenance, repairs and replacements performed by the Landlord; costs of seasonal or holiday decorations; workers' compensation, public liability, rent interruption, fire insurance, extended coverage mud alt otter perils co:,,aga, plus all endorsements and other insurance coverages deemed reasonable and necessary by Landlord, including boiler and machinery coverages; all applicable wage, unemployment, social security, and personal property taxes and assessments; fees for required licenses and permits; supplies; reasonable depreciation of equipment used in the operation or maintenance of the common areas; and an administrative fee equal to fifteen percent (I5%) of the total costs and expenses of operating, managing and maintaining the Shopping Center. Notwithstanding anything contained herein to the contrary, in no event shall Tenant's proportionate share of common area operating costs include costs of original construction, or the cost of major renovations to die Shopping Center or any management fee payable to Landlord or to any third-party property management company except for the fifteen percent (15%) administrative fee referenced above. 5.4 CONTROL OF COMMON AREAS: 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 modify, remove, relocate and otherwise change the common areas from time to time as well as the right to establish, revoke, modify and enforce rules and regulations governing [lie 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 [lie prior consent of Landlord. ARTICLE VI: CONSTRUCTION AND ALTERATIONS 6.1 LANDLORD'S CONSTRUCTION: The construction work required to be done on the Denhised Premises by Landlord prior to the Delivery of Possession shall be as set forth in Exhibit "D". Notwithstanding anything contained herein to the contrary, Landlord hereby represents and warrants that, as of the Delivery of Possession, the IIVAC, plumbing, mechanical and electrical systems as set forth in landlord's Work shall be in good working order and free of any latent defect. 6.2 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, new fhxlures (including, but not limited to, landlord approved signage) and new equipment and to perform such other work as shall be necessary or appropriate in order to prepare the Demised Premises for the opening of its business in a first class condition as soon thereafter as possible but in no event later than ninety (90) days after Delivery of Possession of the Dcmised Premises. In die event that Tenant does not open the Demised Premises with all stock, such fixtures (including, but not limited to, Landlord approved signage) and such equipment .9. necessary for the conduct of Its business in a first class manner within thirty (30) days after [he Rent Commencement Dale Landlord shall have tike right al any lime 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 tine 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. In matters concerning changes to the external appearance of the Demised Premises or that would alter life design and/or the structural integrity of the Shopping Center, or changes in 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 goal workmanlike manner in compliance with all governmental requirements, and in compliance 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. Tenant's plans are attached hereto as Exhibit I and fire hereby approved. 6.3 BUILD M RISK: Tenant shall also maintain builders "all risk", fire and comprehensive general liability, workman's connpensatlun and employer liability insurance with respect to any and all of Tenant's construction and alteration activities, naming Landlord and ; atd'rrd's mortgagee:.,. i 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. 6.4 jr,ryAM 2 DIMCIIAR F OF I I NR; Tenant shall rumpII p y pay its contractor and materialmen for all work done upon life Demised Premises. Nothing in this Lease shall be construed to authorize Tenant or others dealing with 't'enant, 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 tile and Imnefil of Tcnam and not Landlord. Tenant shall, upon request, provide Landlord lien waivers, and should any such lien be nsserted or filed, Tenant shall immediately discharge of record (either by payment or by filing of the necessary bond, or otherwise) the some 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 fell (10) business days of Landlord's request for reimbursement shall constitute a default by Tenant under [iris (.ruse. Landlord hereby requires Tenant and/or Tenant's contractor, to file a Stipulation Against Liens in the form attached hereto as Exhibit F-2 with the Office of the Prothonotary for the county in which the Demised Premises is located to eliminate attachment of mechanic's or malerialmen's liens prior to initiation of any construction. ARTICLE VII: MAIMEENAN F AND REPAIRS 7.1 LANDLORD'S OBLIGATIONS: Except as provided for in Article XIII, Destruction, and Article XIV, Eminent Domain, Landlord shall keep and maintain the roof, foundation and exterior walls, life 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, in which event Tenant shall reimburse Landlord for 100% of such costs upon demand. 7.2 TENANT'S OBLIGATIONS: (A) Tend shall be responsible at its own expense for keeping me Demised Premises neat and clean and in good order, condition and repair at all times from the dale 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: (1) The exterior and interior portion of all doors and door checks, door locks, emergency hardware openers, and door handles; (2) Windows, window molding, plate glass, store fronts, glass door panels, and showcases surrounding the Deh„;se6 Premises; (3) All plumbing and sewage facilities within die Demised Premises, including free flow to the utility owned sewer line, including water meters; (4) Healing and air conditioning systems and equipment, sprinkler systems and electrical systems (after Landlord's Certificate of Occupancy has slated such systems are properly functioning) including electrical meters and wiring; (5) 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 (8) Maintain 'tenant's sign(s) in good repair as required in Section 4.5. (8) Tenant shall contract with a qualified service company for reasonable maintenance of the healing, ventilation and air conditioning equipment and furnish Landlord a copy of the contract within ten (I0) days after opening and with subsequent contracts upon cancellation or expiration of the original contract. -10- (C) Tenant shall 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 lite 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 die Shopping Center for placement of these diunpslers. (D) If Tenant refuses or neglects to commence and to complete repairs, Landlord may after ten (10) days notice, at Landlord's option, place Tenant in default of the Lease and make said repairs and Tenant shall pay the cost thereof plus any administrative charges, as Additional Rent upon demand. 7.3 SURRENDER OFDEMISED PLF6 ISFS; At the expiration of the tenancy, Tenant shall peaceably surrender the Demised Premises in the same condition as received by it on the Delivery of Possession, reasonable wear and tear excepted. All keys to the Demised Premises and lock combinations to any safes or vaults which may be in Cite 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 he made or installed by either die Landlord or the Tenant upon the Demised Premises and which in any manner are attached to die 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 Dcmised Premises upon the termination of this Lease if, but only if, the Tenant is not then in default hereunder. Tenant shall repair any and :11 •tmage caused to %r 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 Leme. In no event shall the Tenant be entitled to remove any healing, 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 tine Security Deposit shall not constitute satisfaction of the cost, should such cost exceed the amount of the Security Deposit. ARTICLE VIII: INSURANCE AND INpEMNITV 8.1 CASUALTY iNS RAN : 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 leasehold improvements to die Demised Premises insured by reputable, duly licensed insurance companies against loss or damage by fire with the usual extended coverage endorsements in amounts at least equal to lite 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 Delivery of Possession, 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. 8.2 WAIVER OF SIIItROGATION; Insofar as and to the extent that the following provision may be effective without invalidating or making it impossible to sxure insurance cow.age obtainable front 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 [lien being carried by [hens, 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 die 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. 8.3 INCREASE IN FIRE INSURANCE PREMIUM : Tenant agrees not to keep, use, sell or offer for sale, in or upon the Demised Premises, any anicles or goods which may be prohibited by the standard forms of fire insurance policy or will otherwise increase the rate t,f tire or other instuame on the Demised Premises. 'T'enant 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. 8.4 LIAIII 111 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 'T'enant and permitted sublenans 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, with an annual aggregate of not less than $2,000,000.1111. 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. Tile 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 tine 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. 8.5 RENTAL. INTERR PTION INSURANCE: Landlord may, in Landlord's sole discretion, maintain a policy of rental interruption insurance, the cost of which shall be part of common area operating costs. 8.6 INDEMNIFICATION OF I ANDr-ORD: To the extent permitted by law, 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 fire Dernised Premises or any pan thereof, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, licensees, employees, servants, subiessees, or concessionaires, unless caused by negligence on the part of Landlord, its representatives or employees. 8.7 PLATE GLASS: Tenant shall replace at its own expense any and all plate and other glass ill and about the Demised Premises damaged or brOKen from any cause whatsoever. 8.8 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. ARTICLE IX: SUBORDINATION. NOTICE, -S1'OPP AND ATTORNMENT 9.1 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: ^n > and amounts pa;:nble to it under :he 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 easement affecting the Dernised Premises and the Shopping Censer 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, consolidatio, ;, participants, replacements 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, easement or sale and leaseback as shall be reasonably 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 of receipt, then, Tenant hereby irrevocably appoints the Landlord as its stfomey-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. 9.2 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 rime as is reasonably required to correct any such default, after notice by the Tenant to the Landlord properly specifying wherein [lie Landlord has failed to perform such obligation. Purther, if the holder of a mortgage which includes the Dernisco Premises notifies die Tenant that such holder has taken over the landlord's rights under this Lcase, the Tenant shall not assert any right to deduct tie cost of repairs or any monetary claim against the I andlord from rent dereafter due P.?d pavablc, bill shall look solely to the landlord for satisfaction of such claim. Nothing herein contained shall be deemed to create any rights in Tenant not slecifncally granted in this Lease or under applicable provisions of law. 9.3 ESTOPPEL CFRT'IPICAI : Tenant agrees, at any time, and from time to time, upon not less than tell (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a statement in writing addressed to Landlord or other party designated by Landlord certifying that this I-ease is in full force and effect (or, if there have been modifications, that the some is in full force and effect as modified and staling the modifications); stating the actual commencement and expiration dates of the Lease; stating the dares to which rent, and other charges, if any, have been paid, stating that the Demised Premises have been completed on or before the date of such certificate and 12- that all conditions precedent to the Lease taking effect have been carried out or fulfilled; that Tenant has accepted possession; 111,11 Ole lease term has commenced; Tenant is occupying the Demiscd Premises and Is open for business; 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; and any other state of facts which Landlord or such other designated parties may reasonably require; 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 prospective mortgagee of any mortgage affecting the Demised Premises or the Shopping Center. If Tenant does not deliver such statement to Landlord within such ten (10) day period, Landlord, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following facts: (1) that 11he terms and provisions of this Lease have not been changed except as otherwise represented by Landlord; III) that this Lease has not been canceled or terminated except as otherwise represented by Landlord; (iii) that not more than one month's Minimum Rem or other charges have been paid in advance; and IN) 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 ilia terms of which Tenant will agree to give prompt written notice to any s,irh encumbrance holder in tine event of any casually damage to ilia Demised Premises or in ilia event of any default on the part of Landlord under this Lease, and will agree to allow such encumbrance 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. 9.4 ATPORNMENT: At the option of the holder of any mortgage affecting ilia 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 [lie 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 die mortgaged premises in foreclosure whereby Tenant atoms to such successor in interest. 9.5 ASSIGNMENT OF RENTS: With reference to any assignment by Ilia Landlord of the Landlord's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to ilia holder of any mortgage on the Demised Premises, the Tenant agrees: (A) that the execution thereof by the 1.:vC ,rd, and the accec,ance thereof by such holder, shall never be deemed an assumption by such holder of any of die obligations of ilia Landlord hereunder, unless such (holder shall, by written notice sent to the Tenant, specifically otherwise 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 ilia Demised Premises by such holder. ARTICLE X: ASSIGNMENT AND SUBLETTING 10.1 CONSENT REQUIRED: Tenant shall not voluntarily or involuntarily assign this Lease in whole or part, nor sublet (which term, without limitation, shall include the granting of concessions, licenses, and ilia 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 ilia Tenant seeks the Landlord's consent pursuant to this Section 10.1, ilia Tenant shall furnish such information regarding the prospective assignee or sublessee as ilia Landlord may require, including without limitation information regarding financial ability and business experience relating to ilia uses permitted hereunder. Ilia 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. Tire foregoing shall be construed to include a prohibition against any voluntary or involuntary assignment or subletting arising by nrration of law. For ilia 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 ilia profits and losses from [lie business operations of the Tenant in ilia Demised Premises to a person or entity other than ilia Tenant, or otherwise having substantially the same effect, shall be treated for all purposes as an assignment of this Lease and shall be governed by the provisions of this Section 10.1. In the event that Tenant receives a bona fide written offer from a third party (other than an Approved Assignee, as hereinafter definer) for the sublease or assignment of Ole Demised Premises, Tenant shall forthwith notify Landlord in writing, attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon terms of said offer, whereupon landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option, cancel and terminate this Lease, in which case Landlord may elect to enter into a direct lease with the proposed assignee or subtenant. 'Ilse failure of Landlord to either accept or reject said assignment or sublease within ilia 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 ilia Demised Premises, or permit tiny person or persons other than Tenahl to occupy the Demised Premises, Landlord may collect rent from the person or persons then or thereafter occupying ilia Demised Premises and apply the net amount collected u) ilia reni reserved 13- herein, but no such collection shall be deemed a waiver of this Article X, or the acceptance as Lenart of any such purported assignee, subtenant or occupant, or a release of Tenant from the further Performance by Tenant of covenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable for (Pte obligations of the Tenant hereunder, including, without limitation, the obligation to pay the rents and other amounts provided for under this Lease, and shall not be released from performing any or the terms, covenants or conditions hereof. If Tenant is a corporation or partnership, any sale, transfer, pledge, leveraged buy out or other disposition of twenty-rive percent (25%) or more of the corporate stock or the stock of any corporate guarantor of the Tenant specified in Section 1. I (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 llte 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, 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 Guarantors or to the Tenant's franchisor, Little Caesar's Fnterprises, Inc. ("LCE") or to any approved franchisee of LCE (individually and collectively, each an "Approved Assignee"), provided that Tenant provides Landlord with notice of such assignment, including copies of all documents related tereto, within ten (l9) d. ? s of such assigrrncri. Notwithsirriding any such assignment, 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, [lie 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 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. 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 properly 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 tun with the land and shall be binding upon the subsequent owner or owners thereof or of this Lease. ARTICLE XI: WASTE GOVERNMENTAL AND INSURANCC KCUUrRCmcv r? nh?ri HAZARDOUS SUBSTANCES 11.1 WASTE Olt NUISANCE: Tenant shall not commit or suffer to be committed any waste upon lire 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 [lie 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 properties. 11.2 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. 11.3 HAZARDOUS IBSI'ANCFS: Tenant covenants and warrants that Tenant, Tenant's Work, as set forth in Exhibit P attached hereto and made a pan hereof, and any alterations thereto and Tenant's use of Demised Premises and performance of its obligations hereunder will at all limes comply with and conform to all present and future laws, startles, ordinances, rules and regulations of any federal, slate or local governmental, quasi-governnhcniai or regulatory authorities (the "Laws"), including, but not limited to, environmental laws, rules and regulations which relate to the 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, lha;.a;dous materials o' ;ty 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 (as 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 still, proceeding, investigation, order, consent order, injunction, writ, award, or action related to or affecting or indicating rite 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 low, that it will indemnify, defend, save and hold harmless Lhe Landlord and Landlord's officers, directors, shareholders, employees, agents, partners, and their respective heirs, successors and assigns (collectively "Indemnified Parries") 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 14- expenses, damages arising from any adverse impact on marketing of space or diminution in value of the Demised Premises or die Shopping Center and damages for the loss or restriction of use of remable 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 11.3. 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 11.3. 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 ilia ben 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 Demised Premises. Landlord shall conduct and complete all investigations, studies, sampling and testing, and all removal and oilier actions necessary to cleanup and remove all hazardom materials on, render, from or affecting the Demised 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 use of die Demised Premises then die other provisions of this Section 11.3 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 11.3. Landlord may require that Tenant deliver to Landlord concurrent with Tenant's vacating the Dernised Premises at Tenant's expense, a certified staiement by Iice=J engineers, in form and substance satisfactory to landlord, stating drat Tenant, Tenant's Work and any alterations thereto and Tenant's use of (lie 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 [lie 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. 11.4 GOVERNMENT P RMITS: Tenant shall, in performing its obligations Hereunder and at its own expense, comply with all applicable present and future laws, ordinances, rules, and regulations 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 authorizations now or hereafter necessary, lawful and proper in order to permit Tenant to use the Demised Premises for die 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. 11.5 SUR_ VIVAI : All of the terms, covenants, warranties and indemnifications contained in this Section shall survive the termination of this Lease. ARTICLE XII: ADVERTISING AND PROMOTIONAL. PR )CRAM 12.1 ADVERTISING AND PROMOTIONAL PROGRAM: Intentionally Omiucd. ARTICLE X111: DESTRUCTION 13.1 TOTAL OR PARTIAL. D '-STR ICTION: If the Demised Premises shall be partially or totally destroyed by fire or other casualty insurable under full staA-a' fire and exlcn&I risk insurance, so as to become partially or totally untenrantable, 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 untenamable, Tenant's Minimum and Additional Real 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 Dcmised Premises are located shall he 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) die unexpired portion of the term of this Lease shall be eighteen (18) months or less at the date of the damage, then Landlord may elect not to repair or rebuild the Demised Premises, or so much thereof -15- 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 reconstruction 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 fu;I :'orca and effect. Notwithstanding anything to the contrary contained herein, Landlord she!] na: be obligated to .o:nmence reconstruction or repairs until Landlord Itas received the proceeds of any applicable insurance claim and Landlord's obligation to restore and repair is limited to the proceeds of such insurance. 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 he prorated to the date of such damage or destruction. In the event that this Lease is not canceled, then Minimum and Additional Rent 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 dial Landlord is paid die equivalent of such Minimum and Additional 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 XIII. 13,2 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. 13.3 TENANT'S RESTORATION: Unless this Lease is terminated as provided in Section 13.1 or Section 13.2 of this ARTICLE X111, 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 XIII to substantially the condition which such portions of the Demised Premises were in at the time of such casually; (ii) equip the Demised Premises with trade fixtures and all personal property necessary or proper for the operation of the Tenant's business; and (iii) open for business in the Demised Premises as soon thereafter as possible. 13.4 SUBSTANTIAL DAMAGE: The term "substantially damaged or destroyed", as used in this ARTICLE XIII, 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. ARTICLE XIV: EMINENT DOMAIN 14.1 TAKING DV EMINENT DOMAIN. CONDEMNATION: ;n the event of any taking by eminent domain, condemnation or conveyance in lieu thereof asaialifter a "Taking') of the Demise. 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 pan 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 Taking, 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 mortgagee(s). 14.2 REMORATION OF DEMISED PREMISES: In the event that any part of the Demised Premises shall be subject to a Taking, and should this Lease not be terminated in accordance with the foregoing provision, the Landlord will, within a reasonable time after such Taking, 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 XV: DEFAULT OF TF.NAN'1' 15.1 DEFAULT: Any one or more of the following shall constitute an "Evert of Default" under ibis Lease: (A) failure of Tenant to make, within five (5) days after the date Tenant receives notice of such failure to make payment when due, any payment of Minimum Rent, Additional (tent 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); -16- (B) Tenant's failure to perform any other of the terms, conditions or covenants of this Lease io be observed or performed by Tenant, which failure continues for ten (10) business days after wrilten notice thereof, provided, however that such right to written notice shall be limited to one (1) lime during each calendar year of the term of this Lease; however, if such term or condition is of such a nature that it cannot reasonably be cured within ten (10) business days , and Tenant is making goes Lama efforts to cure si;d default, [hen Tenant may have up to thirty (30) days to cure such default; (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 stature, either of the United Slates 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 benefnt of creditors, or petitions for or enters into such an arrangement; (D) If Tenant fails, alter the term of this Lease commences, to be open for business to file 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 Denhised Premises, or suffer this Lease to be taken under any writ of execution; (E) if Tenant shall default in the timely payment of Minimum Rent, Additional Rent, or other charge payable by Tenant hereunder or to timely discharge any other monetary obligation three rimes in any twelve month period, notwithstanding the fact that any such default shall have been cured; or (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 declined an incurable, material breach of this Lease and, at Landlord's option, shall constitute an immediate termination of Tenant's right to possession of the Demised Premises. The notice or 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. f any Event of Default occurs, the Landlord, besides all such other rights or remedies it may have under this or in law or in equity, shall have the right, without demand or notice (and Tenant hereby expressly waives any to quit possession of the Demised Premises) to enter the Demised Premises and take possession thereof and of anent improvements thereon and may retro-e all persons and. property, from the Demised Premises by force, ry action, or otherwise, and such property may be removed ana stored in a public warehouse or elsewhere at t of and for the account of Tenant, all without service of notice or resort to legal process, and without being guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby and without e to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Tenant that Tenant shall have no further claim under this Lease and shall quit and deliver up fire possession of the [Dcmised d Premises, including permanent improvements to the Demised Premis es, when this Lease terminates by on of its term or in any other manner provided for herein. 15.2 R .M LDI S; 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 lire 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 retelling 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 m retelling the Demised Premises and lake into account in connection with any retelling of the Demised Premises all relevant factors which would be taken info account by a sophisticated developer in securing a replacement tenant for the Dernised Premises, such as, but not limited to, the type of shopping center then being operated on tie Shopping Center, matters of reliant mix, the type of operation proposed to be conducted by any such replacement Ienam, 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 life Stropping Center be deemed to be a failure to mitigate said damages. Upon each such releuing all rentals received by Landlord shall be applied first to the payment of any indebtedness other Than rent dire hereunder from Tenant to Landlord; second to the payment of any costs and expenses of such retelling including brokerage fees and attorneys' fees, costs of collecting the rent in connection with such relel, 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 lie (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 releuing 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 ro Tenant. Notwithstanding any such retelling without lcro lnation, Landlord may at any tittle 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 -17- breach, including die cost of recovering the Demised Premises, and die amount of rent and charges equivalent to rent reserved in this Lease for (he remainder of die 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 due Minimum Rent set forth in Section 1.1(G) (or if default occurs during any option period hereto, as set forth in Section 1. 1(])), and the Additional Rents specified In Section 15. 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'fgE LANDLORD AND THE TENANT, THE TENANT'S USE OR OCCUPANCY OF THE DEMISED PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE, AND (111) THE TENANT AGREES NOT TO INTERPOSE ANY COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY PROCEEDING COMMENCED BY THE LANDLORD FOR NONPAYMENT OF MINIMUM RENT, ADDITIONAL RENT OR ANY OTHER AMOUNT DUE HEREUNDER, PROVIDED THAT SUCH CLAIM IS NOT REQUIRED BY LAW TO BE BROUGIIT AS A COUNTERCLAIM TO AVOID FORFEITURE OF THE CLAIM AND 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. 15.3 ADDITIONAL REMf: For the purposes of this ARTICLE XV, it shall be deemed that Additional Rem for any period after any default and entry by the Landlord would have been at a monthly rate thereafter equal to ilia average monthly Additional Rent which the Tenant was obligated to pay to Cite Landlord under this Lease either: (I) from the Rent Commencement Dale hereof to the date of such default; or (if) during the last three (3) years prior to the date of such default - whichever is greater. 15.4 GUARANTOR& If this Lease stall be guaranteed on WWI` of the Tunam, all of [lie provisions of this ARTICLE XV with respect to bankruptcy of the Tenant, etc., shall be deemed to read 'the Tenant or Elie Guarantor hereof." 15.5 j)ANKRUPTCY OR OTHER DEFAULT: Tenant agrees [hat 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 due provisions of ilia revised bankruptcy code, may assume this Lease only if, in addition to such other conditions of this Lease 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 Ilia 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 ilia tenant mix and balance of due Shopping Center. Landlord shall have at all times a valid lien from all rentals and other surns of money becoming due hereunder from Tenant, upon all goods, wares, equipment, fixtures, furniture and other pcrsonal properly 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 ilia 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 ilia Demised Premises and lake 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 safe, with or without having such property at the sale, at which Landlord or its assigns may purchase, and apply ilia proceeds thereof less any and all expenses connected with ilia taking of possession and sale of the property, as a credit against any s:.ns due by Tenant m Landlord. Any surplus shall [e paid to Tenant, and Tenant agrees to pay any deficiency forthwith. Alternatively, ilia lieu hereby granted may be foreclosed in ilia 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 m the contrary, Tenant may place liens on any furniture, trade fixture or appliance installed by Tenant. Landlord hereby waives any lien or right in and to such items. Landlord agrees, as may be reasonably 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 atlach only against die personal property of Tenant and shall not allach to the real estate or any personal property of Landlord. Attached hereto as Exhibit "it" is a copy of ilia Tenant's lender's standard Landlord Waiver and Consent Agreement which die landlord agrees to complete, execute and return to the Tenant simultaneously with its execution of this lease; provided that Tenant has first provided landlord with an equipment list to attach as an exhibit thereto, ht addition to other remedies available under this Lease, fn [lie event of an occurrence of an Event of Default or, in the event of a threatened breach by Tenant of any of ilia covenants or provisions hereof, Landlord shall have the right of injunction and die right to invoke any remedy allawcd by law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lcase of any particular remedy shall not preclude Landlord from any other remedy, at law or fn equity. Tenon hereby expressly waives any and all rights of redemption granted by or under any present or future laws, including possession pursuant to §504 of die Landlord and Tenant Act of 1951, in the event Tenant is evicted or dispossessed for any cause, or fn de event landlord obtains -18- 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 [lie 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, (iii) [lie commencement of a suit, or (iv) final judgement for possession of die Dcmised Premises, Landlord may receive 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, Additional Rent and all other charges accruing hereunder. 15.6 FAILURE TO PAY. INTEREST: If at any time Tenant shall fall to pay any taxes, assessments, or liens, provide insurance or perform any act required by this Lease to be mad 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 (1.596) 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. ARTICLE XVI: ACCESS BY LAND ORD 16.1 RIGIIT OP F.NTRY: 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) snake 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 XV 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 construed 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 XVII: TENANT'S PROPERTY 17.1 1AX S ON LEASEHOLD: Tenant shall be responsible for, and shall pay before delinquency, all municipal, county, or state taxes assessed during tie term of this Lease against any leasehold interest or personal property of any kind owned by or placed in, upon, or about the Demised Premises by Tenant, and (lie Tenant shall pay all license fees and other charges which may lawfully be imposed upon the business of the Tenant. 17.1 LOSS AND DAMAGE: The Tenant agrees to use and occupy the Demised Premises and to use such other portions of die Shopping Center 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 loss 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 he.cof, aad any earlier pa i,vJ that Tenant may enter the Demised Premises. The Tenant 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 pan of tie premises adjacent to or connecting with the Demised Premises or any of the buildings on the Shopping Censer, or otherwise, or for any loss or damage resulting to the Tenant to -19- Those claiming by, through or undei the Tenant, at as or their property, from die bursting, stopping or leaking of water, gas, sprinkler, sewer or slearn pipes. Any such waiver of liability of the Landlord by ilia Tenant shall not apply in the event any injury, loss or damage was proximately caused by die negligent acts or omissions or intentional acts of ilia Landlord, its agents, representatives or employees. 17.3 NOTICE BY TENANT: Tenant shall give Immediate notice to Landlord In case of fire or accidents, or damage to or of defects in the Demised Premises or In the building of which the Demised Premises are a part. ARTICLE XVIII: HOLDING OVER. SUCCESSORS 18.1 1101.DING OVER: Any holding over by the Tenant after the expiration of the term of this Lease shall be treated as a tenancy at sufferance at one and nne-kalf (I 'A) times the Minimum Rent payable immediately before said expiration of the Lease (and If varying rates are specified herein, at one and one-half (I 'A) times [lie highest such rate) plus the Additional Rent and other charges specified herein, prorated on a daily basis, and shall otherwise be on lire terms and conditions set forth in [his Lease, so far as applicable. 18.2 SUCCESSORS AND ASSIGNS: Except as otherwise herein expressly provided, this Lease and all ilia 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 those instances in which the Landlord may later give consent to a particular assignment as required by the provisions of ARTICLE X hereof. ARTICLE XIX: OUIET ENJOYMENT 19.1 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 pan 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 thin 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'e successors' respective ownership of the Landlord's interest hereunder. It is further understood and agreed that Ihti Landlord shall in no event be liable for failure to perform any obligation under this Lease in the event [Ile 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 die Landlords reasonable control, or for any cause due to any act or neglect of [Ire Tenant or its servants, agents, employees, licensees, or any person claiming by, through or under the Tenant, or any termination for any reason of die Landlord's occupancy of the premises from which any service or work is being supplied by ilia Landlord, and in no event shall the Landlord ever be liable to the Tenant for any indirect or consequential damages. ARTICLE XX: MISCELLANEOUS 20.1 WAIVER: The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver #f any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, lerdh or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing. 20.2 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 endorsement 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 ilia Landlord may have. 20.3 NO PARTNERS111P: 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 venturer or a member of a joint enterprise with Tenant. 20.4 FORCE MAJEURE: In the event that either parry hereto shall be delayed or hindered in or prevented from [he 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 ilia fault of the party delayed in performing work or doing acts required under the terms of this Lease, then the little allowed for performance of such act shall be extended by a period equivalent to the period of such delay. The provisions of this Section 20A shall not operate to excuse Tenant from the prompt payment of Minimum Rent, Additional Rent, or any otter payments required by the terms of this Lease. 20.5 LANDLORD'S L.IADILnT: 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 ilia Lease, and Tenant's sole remedies shall be -20- money damages (except as set forth in Section 20.16), 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 den 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 ogents, 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 Centc, ;m mbject to the pri 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 Landlord's right, title and interest in the Demised Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 20,6 NOTICES AND PAYMENTS: Any notice by Tenant to Landlord must be served by certified mail, postage prepaid, or national overnight delivery service, addressed to Landlord at the place designated for the delivery of correspondence in Section 1.1 (0), with copies to: Ahold Real Es=c Company, 333 North Main Street, West I lariford, CT, 06117, Attention: Executive Vice President - Leasing, 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, or national overnight delivery service addressed to Tenant at the Demised Premises, with copies to Scott K. Lites, P.C., 3000 Town Center, Suite 2690, Southfield, Michigan 48075, or at such odor 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 20.6. 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 at the address set forth in Section 11,1 (O) for payments. 20.7 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. 20.8 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. 20.9 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. 20.10 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. 20.11 PARTIAL INVALIDITY: If any term, covenant, or condition of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this lease or the application of such term, covenant, or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 20.12 RECORDING: 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 undr• 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. 20.13 ENTIRE AGBE.EMENT: The Lease and the exhibits and riders, if any, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning die Demised Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other 111011 as herein set forth. All prior communications, negotiations, arrangements, representations, agreements and understandings, whether oral, written or both, between the panics hereto, and their representatives, are merged herein and extinguished, this Lease superseding and canceling 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 -21- 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 provisions of this Lease cite provision contained in such rider shall supersede said provision set forth herein. Tenant hereby acknowledges that (a) except as otherwise expressly provided herein, 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 pan 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 tlhe Shopping Center during the term of this Lease or any pan thrrrof; (c) before owedng into this Lease the Tenant has made its own observations, studies, determinations slid projections with respect to the Tenant's business in tlhe Dcmised Premises and all otter factors relevant to the Tenant's decision to enter Into this Lease, Including, without limitation, competition, market size, sales volume, profitability and general, so-called "demographics" -- both present and prospective; and (d) neither the Tenant nor any representative of die Tenant has relied upon any representation by (or any 'conversation"-with) the Landlord or any representative of the Landlord with respect to any of said factors, and Tenant hereby expressly waives all claims with respect titerclo 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. 20.14 SURVIVAL: Notwithstanding anything in Ibis Lease to the contrary, the representations and undertakings of Tenant under this Lease shall survive the expiration or termination or this Lease regardless of the means of such expiration or termination. 20.15 AEPLICABI.R LAR: 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. 20.16 ONSIENTS AND APPROVA-I,s: 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. 20.17 AUTIIORITV: 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 tike 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 Gurranty, rr, sefiicable, has been Duly authorized. 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 tlhe 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. 20.16 WHEN LFASF. BECOMES EFFECTIVE: This Lease shall be effective only when it is signed and delivered by bath 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 its accordance with the terms hereof. 20.19 INTFRP_ RE7'AT_ION: 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. 20.20 BROKERS: 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 L I (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 -22- or incurred by Landlord resulting from any claims asserted against Landlord by brokers or agents claiming through Tenant. 20.21 LANDLORD'S FEES AND EXPENS & Unless prohibited by applicable law, the Tenant agrees to pay to site 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 Landlord and Tenant, die prevailing party shall be entitled to reimbursement of reasonable legal fees by the other party. 20.22 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. 20.23 SIIIFT ..A tS : 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 Rent Commencement Dale or during the term of this Lease, to shift the location of the Demiscd Premises within lire 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 rite Demised Premises. Tenant shall move to such relocated premises (1) immediately, in the event that Landlord's notice is given prior to the Rent 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 Rent Commencement Date. Landlord shall reimburse Tenant for all reasonable moving costs incurred by Tenant in relocating as contemplated by this Section 20.23. 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 selling forth such value. If the following conditions do not prevail: (A) the parties agree exactly as to where in the Shopping Center the Demised Premises will be relocated; (B) the new premises shall not be smaller than the Demised Premises; (C) the rent in the new premises shall be idem'cal to that ;n'r • Demised Preinises (not computed on a per square foot basis, but, rather, computed on a dollar basis); (D) Landlord shall pay for all reasonable costs of relocation; and (E) Tenant shall not be unable to operate its 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 its option hereunder. In such event, this Lease will terminate sixty (60) days after notice by Tenant of termination. 20.24 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 Demised 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, as may be reasonably 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 Tenant and shall not attach to the real estate or any personal property of Landlord. Attached hereto as Exhibit "H" is a copy of die 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; provided that Tenant has first provided Landlord with an equipment list to attach as an exhibit thereto. ARTICLE XXI: SECURITY AND RENT DEPOSITS 21.1 AMOUNT OF SECURITY DEPOSIT: Intentionally omitted. 21.2 USE AND RETURN OF S .. OIITY D .POSIT; Intentionally omitted. 21.3 REM' DEPOSIT: Tenant, contemporaneously with the execution of this Lease has deposited with Landlord the sum set fortis in Section I.1 (L) to be held and applied to the first month's rent due under this Lease. ARTICLE XXII: TENANT COVENANTS. EASEMENTS 22.1 TENANT COVENANTS: Notwithstanding anything to the contrary contained herein, [his Lease is subject to and made on the understanding that Landlord has granted and/or may or will grant certain restrictions and exclusive use covenants to other tenants of lite Shopping Center (herein the "Tenant Covenants"). Tenant acknowledges that Tenair's use and/or occupancy of the Demised Premises in violation of any current or hhture 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 remedies slated in Article XV hereof and any other remedies available under the law of the Cora . %:%,-eallh of Pena"%weia. Nothing contained in this Section 22.1 shall be construed to permit Tenant to expand the allowed uses set forth in Section 1. 1 (M) hereof. -23- 22.2 EASEMENTS: The Shopping Center Is and/or may be encumbered and/or benefitled from time to lime by certain easements, development and operating co-n•a arts, and simils, ^r•e:ments. Tenant agrees that it shall abide by any such agreement. Including any such agreement as may be amended from time to lime 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: (- ?. eras P)uA.tse) 2aH96 n:Opm) LANDLORD: CARLISLE MARKETPLACE LIMITED PARTNERSHIP BY: Carlisle Corp., Its general partner By: AWA Its, TENANT: J.M.R. FOODS, INC. Us LITTLE CAESAR'S PIZZA kk- By: -? Its: V c P .? IL.X -24- DEMIISEI)ZHE LM !De 'ate /?XI I ALL THAT CERTAIN tract of land situate along the eastern line of South Spring Garden Street, in the Second Ward of the Borough of Carlisle, County of Cumberland and Commonwealth of Pennsylvania, bounded and described in accordance with a Final Subdivision Plan for Seven Gables Estates and Ahold Real Estate Company, by J. Michael Brill & Associates, Inc., Consulting Engineers, dated July B, 1994, revised December 2, 1994 and recorded in Subdivision Plan Book 69, Page 124, as follows: BEGINNING at a rebar on the eastern line of South Spring Garden Street, (Township Route T-516), at corner of lands now or formerly of W. C. Wertz; thence by the eastern line of South Spring Garden Street, North nineteen (19) degrees fifty-two (52) minutes sixteen (16) seconds East, a distance of 672.99 feet to a point on the southerly line of Samuels Drive; thence by the said Samuels Drive, by a curve to the right having a radius of 25.00 feet, an arc length of 36.91 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, 395.59 feet to a point; thence by a curve to the right having a radius of 190 feet, an arc length of 97.13 feet to a point; thence by the same, by a curve to the left, having a radius of 310 feet, an arc length of 158.47 feet to a point; thence by the same, South seventy-five (75) degrees thirty-one (31) minutes forty-four (44) seconds East, a distance of 96.67 feet to a point at corner of Lot 3 .:•n the here)nabove mentioned Plan of Lots; thence by the said Lot 3, South fourteen (14) degrees twenty-one (21) minutes thirty-one (31) seconds West, a distance of 566.72 feet to a point; thence by the same, South seventy-three (73) degrees thirty-three (33) minutes forty-three (43) seconds West, a distance of 110.80 feet to a point on line of lands now or formerly of Jeffrey S. Smith; thence by lands now or formerly of Jeffery S. Smith and along lands now or formerly of W. C. Wertz, North seventy-five (75) degrees fifty-five (55) minutes forty (40) seconds West, a distance of 731.16 feet•to a rebar (found), the point and place of BEGINNING. BEING Lot 12 as shown on said plan. TOGETHER WITH rights, easements, covenants, and restrictions contained in a Declaration of Covenants, Restrictions and Easements between Seven Gables Estates and Carlisle Marketplace Limited Partnership, dated March 24, 1995 and recorded March 24, 1995 in Misc. Book 493, Page 120. Landlord's Work Is limited to die work described herein, all work not classified as landlord's Work is Tenant's Work. Storefront I. Aluminum and glass door single acting 3'-0" X 7'-0". 2. Aluminum storefront framing with I" Insulated clear glass f. 10'-0" above the floor line, or as required by local code. 3. Lower panel glass and glass within 5'-0" of door will be tempered. I. Demising partitions: 3-5/8" metal studs at 16" o.c. with 5/8" fire code gypsum (ward, painted with one (1) coat of primer, ready for Tenant's paint. Interior partition dividing stock and sales area: 3-518" studs at 16" o.c, with 'h" gypsum board, painted with one (1) coat of primer, ready for Tenant's paint. Hollow core wood door with hardware shall be provided in drywall partition between sale and stock areas. 2. 4" Concrete floor, troweled smooth (no finish flooring materials). 3. Vinyl composition the in restroom. 4. Standard duty, smooth and washable to meet all applicable Health Department requirements, 2' x 2' in customer lobby and 2' x 4' in the remainder of the Demised Premises, white suspended acoustical ceiling tile and white metal grid at 10'-0" A.F.F. with an 8'-0" A.F.F. ceiling height in restroom in accordance with Tenant's plans and specifications attached hereto as Exhibit 1. 5. One 3'-0" X 6'-8" hollow metal insulated door (painted) and frame at rear, with panic hardware. I . Complete with fixtures, including water closet, lavatory, toilet tissue holder, soap and paper dispensers, light fixtures, mirror and exhaust fan per local code and the ADA. 2. One pre-finished 3'-0" X 6'-8' hollow core wood door with a privacy latch and self closure. 3. Complete with handicap accessible fixtures and accessories including grab bar at toilet. 4. Restroom walls of 'A" gypsum wallboard, painted with one (1) coat of primer, ready for Tenant to paint. 5. Water service to tenant space revroom (3/4"). 6. One dual light/fan. HVAC I. IIVAC system complete with one (1) manual control accustat thermostat and distribution ducts and diffusers throughout sales and stock area with all main and secondary runs of ductwork. 2. Size of system to be seven and oiv hall' (7 1h) tons Ele I. ctrical 3-phase, 4 wire, 208/240 volt, 200 amp, three-phase electrical service with 42 breaker panel, including breakers and volt main dincomnect local.! :n, accordance with F :hibit I. 2. 2 X 4 fluorescent fixtures (one per IOOSf) with prismatic acrylic lens in accordance with Exhibit 1. 3. Three (3) 4' fluorescent strip fixtures in stock area. 4. One duplex outlet every 20'-0" or as code requires. 5. One 20 amp sign circuit to canopy. 6. Battery powered exit lights per code. 7. Battery powered emergency lights per code. 7 8. One rear exterior door light with switch. 9. One empty conduit for telephone service. s a I. Mis t lled by Landlord if required by NFPA code for general retail use. In cellaneous I. New 75 gallon 80.000 BTU quick recovery commercial hot water heater of a make and manufacturer to be reasonably acceptable to Tenant. 2. Single (1) two inch (2") gnsline, stubbed to Incation shown on Exhibit 1. 3. Underground plumbing including pop chase, plastic (PVC) drainage lines that are under floor, floor drains, and installation of water lines that can be run under the floor to the locations shown on Exhibit I hereto. NOTE: Sales area, as referred above, is an area calculated to be eighty (80%) percent of the total lensed area. Stock area, as referred above, Is an area calculated to be twenty (20%) percent of the total leased area. EXHIBIT n Tenant agrees as follows: 1) All loading and unloading shall be through the rear entrance service door or other designated entry specified by Landlord. 2) All garbage and refuse shall be kept in a container within the Demised Premises that has a lid capable of totally fitting over the opening and shall be kept in such a sanitary condition as to prevent vermin, insects and offensive odors. 3) Tenant shall not burn trash or garbage of any kind in or about the Demised Premises. 4) No radio, television or other communication or electronic device shall be installed by Tenant on the roof, any exterior wall or common area of the Shopping Center without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 5) No loud speakers, television, phonograph, radio or other noise making device may be used in such a manner as to be heard outside the Demised Premises without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 6) Tenant shall maintain a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 7) Tenant and Tenant's employees shall park their cars and other vehicles only in those areas designated for that purpose by the Landlord, and Landlord shail navy, die right, at all :i nies, to impose fines upon Tenant or to tow such cars or other vehicles that fail to comply with this regulation at Tenant's sole expense. g) Trailers, crates, boxes and other such containers shall not be stored in [die common areas or used for the storage of goods or other materials in the common areas. SIGN CRITERIA CARLISLE MARKETPLACE SHOPPING CENTER CARLISLE, PENNSYLVANIA 1. GENERAL; The following sign criteria has been established for the purpose of developing uniform, highly visible, aesthetically pleasing store signage and fascia to harmonize with and compliment the shopping center's building material. A. Each Tenant will identify its store with Landlord approved signs. B. Tenant will provide at its expense two copies of drawings of its proposed sign. Sign drawings shall include a scale showing individual lettering height and total copy length. Sign construction, installation diagram, material information and color scheme shall also be indicated. Upon review, Landlord will notify Tenant or sign manufacturer of approval or disapproval. C. All Tenant signs will be designed and Installer a:'e ot's expense. .41:.a!gns shall meet requirements and specifications set forth in the Landlord's sign criteria. Please note: It is the Tenant's responsibility to be Informed of sign ordinances in his local area. Where governmental sign requirements are more restrictive than Landlord's criteria, governmental restrictions will prevail. Necessary sign permits shall be obtained at the Tenant's expense. In some cases, your sign company will provide ordinance information as well as obtaining necessary sign permits. Tenant will be held liable and bear all costs for removal/and or correction of signs; sign installation and damage to the building because of signage installation that does not conform with Landlord's sign criteria. Upon Tenant's departure, Tenant will remove its sign and repair store front sign bank to its original condition. D. Tenant shall have sign installed and operating within sixty (60) days of the Rent Commencement Date. E. National or Regional Tenants: Landlord reserves the right to allow these Tenants to place their registered sign and trade mark on the fascia. 11. FASCIA SIGN: A. TYPE: One sign of Individual Channel Letters Internally Illuminated is allowed. B. DIMENSIONS: I. Maximum overall height: 28 inches 2. Maximum overall length: 75% of the from footage of the store. (15 feet for a twenty foot storefront.) 3. Minimum letter height: one (1) foot. C. CONSTRUCTION: I. The casings will be fabricated from .050 aluminum. All letters shall have a white interior for an even distribution of lighting. The contour of the letter shall be approved by Landlord. All casing returns shall have a factory finish polyurethane coating. (Color as per Landlord.) Silva trim shall coordinate with letter color. 2. All letters will be faced with 3/16" acrylic supplied by the Rohm & (lass Company, or equivalent. 3. Each letter will have a diffused lighting effect for an even distribution of illumination. The neon tubing (size of tubes relevant to size of letter) will be as provided by the Corning Company with EGL electrodes (or equal) and with a proper vacuum and pressure of neon gas. The transformers powering the lighting system will be 60 milliamp for increase illumination, and will be underrated 5% to compensate for voltage fluctuation and assure even light distribution. The electrodes will be housed in pyrex spring type units which will be protected from the elements. Secondary wiring will be accomplished by proper thigh tension cable and Sm-Con fasteners. All wiring shall be remote. All electrical must be U.L. approved and meet all local and state codes. D. BALANCE: I. Vertical: Unless stylized by design, capital letters will be spaced so there is an equal border on top and bottom of each letter with smaller case letters even with the bottom of the capital letter. 2, horizontal: Letters will be evenly balanced from midpoint of the sign. 3. Logos: Must fit within the 13" height r:yv:rcment. E. OTHER: I. No flashing action, other mechanical animation, formed or injection molded plastic, or boxtype signs will be permitted. 2. Tenant's sign must be kept clean and in good operating condition at all times at Tenant's expense. 3. Content of signagCshall be limited to Tenant's trade name and, at Landlord's discretion, logo only. 4. Lights may not be installed in the storefront to illuminate signs, nor be installed in tithe sign to illuminate [lie storefront. 111. MOUNTING: A. Mounting brackets are to be stainless steel fasteners to prevent staining of fascia. B. Mounting brackets are not to be exposed cr be +:en. C. Signs are to be mounted for bird control. TENAN'T'S WORK The Landlord will provide Tenant with scale drawings showing the general features of the Demised Premises and locations of toilet room, air ducts, electrical outlets, and sprinkler system (if installed). Tenant shall submit for approval to Landlord Tenant's interior working drawings and plans prior to making any alterations or Improvements to the Demised Premises. The Landlord reserves the right to approve such plans for the purpose of insuring such planned changes will not overload the existing electrical system, degrade the air flow, sprinkler system, or weaken the structural Integrity of the Demised Premises or otherwise be detrimental to the Demised Premises or lite adjoining stores fn the Shopping Center, and to make sure that such plans conform to the architectural desig,h standards of the project. Such approval shall not be unreasonably withheld and shall be promptly responded to by Landlord, Landlord's contractor and/or architect. CONSTRUCTION: All Tenant's work shall be at Tenant's expense. All structural alterations such as plumbing, electrical work, additional walls or bathrooms, vents, grease traps etc., undertaken by Tenant will only be awarded to any operating licensed contractor approved by state or local authority and whose livelihood is derived primarily from such work. Construction personnel hired by Landlord may be used by Tenant, at Tenant's expense, to complete some or all of Tenant's interior upfit, providing such additional employment will not conflict with the Landlord's completion of the Shopping Center and Tenant enters a separate agreement with the contractor. Landlord will not be responsible for or obligated to Tenap! or contractor to intercede on either parties behalf, should disputes arise over work or payment thereof. TENANT ADDITIONS: [.The following work shall be completed at Tenant's sole cost and expense within thirty (30) days of Delivery of Possession. Heatine & Air Conditioning: Any and all ductwork, rooftop equipment or split systems not included in Landlord's Work. nutnoma: Any and all sprinkler and grease trap work required as a result of Tenant's Work, including the addition of partitions or anything interfering with Landlord's Work. Any and all fixtures and underground plumbing not described in Landlord's Work. Electrical: Any additional electric to the Demised Premises and/or any additional light fixtures, outlets and/or wiring, other than Landlord's Work. Kitchen guipment: (a) Any and all kitchen equipment shall be installed in accordance with all governmental codes, rules, laws, regulations or ordinances, including but not limited to, building, health and fire codes, and Including, but not limited to, such equipment as grease traps or dry sprinkler systems as required. (b) Any cooking equipment that requires hoods and/or vent fans which penetrate through the roof or any exterior wall shall have an exhaust system with make-up air. BmC (a) Any and all work affecting tie roof, including but not limited to, penetrations and anchorages shall be performed by Landlord's roofing contractor (at Tenant's expense). (b) Tenant shall protect the roof from all grease, chemical or other emissions in a manner approved by landlord and Landlord's roofing contractor or warrantee company so that Landlord's roof warranty is not compromised. 2. The following work, should Tenant desire, shall be done at Tenant's expense. a. Installation and service cost of telephone. b. Installation of intercom, radio or T. V, and associated wiring. C. Ceiling light covers not standard to project. d. Display window platforms, elevated floors, room partitions or special rooms. C. Store signs. f. Automatic doors. g. All interior walls and curtain wall within the Demised Premises except as provided by Landlord's work. It. All signs fn or on The Demised Premises including construction, furnishing and installation. No sign shall be erected without prior written approval of the Landlord or Landlord's architect. )THER: Tenant may add to this list at Tenant's discretion, so long as any such improvements arc coordinated with file landlord beforehand. The undersigned contractor, materialman or other entity or person furnishing services, labor or materials, known as , a Pennsylvania (the 'Contractor") Intending to be legally bound, and in consideration of the sum of ONE AND NO/100 DOLLARS ($1.00) to it in hand paid by a Pennsylvania ("Owner') the receipt whereof is hereby acknowledged, for itself and any subcontractors, materialmen, laborers or anyone else acting through or under It, covenants and agrees that no mechanics or materialmen's liens or claims shall be filed or maintained by it, them at any of them, against the real estate described in Schedule "A", attached hereto and made a part hercof, or against any buildings or other improvements thereon Oointly and severally, the "Real Estate"), for or on account of any work to be done or materials furnished under the principal contract between Owner and Contractor, dated , 19_, or under any supplemental contract, verbal or written, or contract for extra work or materials relating to and work to be done or material furnished under sail principal contract. The undersigned, for itself, its subcontractors, materialmen, laborers and anyone else acting or claiming through or under it, hereby waives and relinquishes all right to file a mechanics' lien, claim or notice of intention to file any lien or claim against the Real Estate. The undersigned, for itself, its subcontractors, malerialmen, laborers and anyone else acting under or through it, hereby irrevocably authorizes and empower; any attorney of any court of competent jurisdiction of the Commonwealth of Pennsylvania, or elsewhere, to appear as attorney for it, them or any of them, in any such court and, in Its or their name or narnes, mark satisfied of record at the cost and expense of the undersigned, any and all claims, liens, any pleading or instrument, or ariy amendment to any pleading or instrument previously filed by it or them, to incorporate therein as part of the record this waiver and for such act or acts this waiver shall be good and sufficient warrant and authority, and the undersigned for itself, and for them, does hereby remise, release and quil•clainn all rights and all manner of errors, in filing such pleading, Instrument or amendment, or in any way concerning them. Owner shall have the absolute right in its name or in the name of the undersigned or any other entity or person who shall have filed a claim or lien, to cause any and all such claims or liens to be discharged by any other instrument, pleading or proceeding permitted at law or in equity. The undersigned hereby avers, represents and warrants that no work has commenced on the Real Estate and no labor or materials have been delivered to the Real Estate or furnished for the improvement of the Real Estate by the undersigned or by any subcontractor, materialman, laborer, or other person or entity, and that no authorization has yet been given by tine owner to the undersigned to commence work or purchase materials In connection with the Real Estate. This stipulation is made and intended to be filed with the County Prothonotary in accordance with the requirements of file Mechanics' Lien Law of 1963 of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, the undersigned ha's caused dais instrument to be duly executed as of the _ day of , 199. ATTEST: CONTRACTOR: By: Name: Name: Title: Title: (CORPORATE SEAL) [ORI WITNESS: CONTRACTOR: (11115 PIZZA ISK 21)71%I1:11Pm1 (SEAT.) i1'i .. ; .`. ?? I;, :.?a?,?i ?, been tded, All havs failed beca use they fill up wit have water and the glossa Is pushed onto the roof. Only Green Guard collects, traps, and holds grease In the worst weather conditional Homed Development Company RR glreclor al Melntenance 'Sandboxes, pickle buckets, rock boxes, and special membranes all lolled miserably, A Grease Guard grease containment system has proven to be the only sllective solution to our problems.' Grease Is the number one cause of rooftop damage In the restaurant Industry. Unfortunately, no matter how good your rooftop warranty is, II doesn't cover damage from grease. This Is why you need a Greece Gusrdl Gnats Guard traps groase before It has a chance to destroy your roof and void your warranty. NoPranchlaa Burger King Owner 'Grease Guard Is the guarantee the tooling company wouldn't give me.° 11. In every case (he ruined arua copal be replaced • an expensive rgpair that oan be pritvented by Installing a Graeae Guard. Grease also cl s rooftop drains causing pending water and flooring, weakening the structure of the fool deck. U.S. Intact Roofing Products RR Tobhnloel el Manager 'Grease attacks, and ultimatelydeslfoy6, every type of roof on the market. Until Grosse Guard there has never been a system to remedy this problem' Fuddruokafe V.P. Construction `I've been raplaoing grease damaoed roofs for years. During that lime I've tried everything to keep grease from destroying my roofs. The only thing I've found that slope the problem Is Ilia Grease Guard system. Green Guard really woiksl' ASK any reeling contractor what 019960 does to your roof and the answer will always bn the same: Grease destroys your rooll The quality of the membrane or the installnllon method does not make a difference. Here's how grease effects different rooting systems: A simple roof repair can cost $3,000, while a now roof can cost $60.000 or more. When VOL) weigh 1119 cost Of ongoing (possibly annual) roof repairs with Ilia cost of a Graeae Guard, your decision Is obvious: Graeae Guard eaves both your roof and your bottom Ilnol W RS) Roofing Magazine 'Anyone who walks on a greasy roof, and then attempts to climb down a ladder, or slips near the roof edge, exposes himself to risk of serious Injury or death' I Guardian Restaurant Fire Proteoilon President We dean some of our customers' exhaust syslsmS as often as onoe a month and their rooltops are still greasy and damaged. Grease Guard Is the only solution to rooftop grease problems' V uroase on the 80109 of shone is an open invitation to noo lop grease Is Inevltaote. No mutter how often your accidents, insurance claims and lawsuits. Grease exhaust system Is serviced, damaging grease will and on your roof Is as dangerous as grease on your up on your roof. Greene Guard catches Iho groaso [lint kitchen floors. even proper exhaust cloanings can't prevent. In most cases a Grease Guard system can be Installed In two hours or less, and requires only a low hours of service each year. Our nalional network of more than 350 aulhorized servicing contractors have the training and experience to properly Install and sere vice your Greene Guard syslem. Profecling your roofing Investment Is easy. Simply call your local Authorized Servicing Contractor for it free rooftop ovaluauon. It a rooftop grease problem exists. the contractor will recommend the size and style that masts your needs. More than a product, Grease Guard offers these Important services: • Consulling and Troubleshoollrlg • National Account Program • Nollonal Ralrofll Program • NoNonwtde Inslallallon • LeesIng Program • Toll•Free Technical Hollins 1- R Chlfl'e We've been using Gromso Guard foryearrs.The tailonal rotrom program and the nelwoik of authorized sere Icing contractors has made Grease Guard a cost•allec. vs. and eflloleni way for us to protect all of our tooling Iveslmenis.' Services Available In Canada and Pueno Rico Cuslomlzed Services Designed to Meet Your Needs CALL TODAY! 1-800-284-8273 Slmpty Check the condition of the fillers eaoll yusrter. Depending on the nature of Iho loud and Iho amount of cooking, the middle filter should be replaced when saturated (about ovary S. 12 months). Under normal conditions, the top filler ^ will last it year or more, 1 j r I I I I Gress* Oelleoling Fleshing. First Absorbent Layer • UV slable and Flame Retardant filter that Voice afi large deeds. Security Layer: Finer that has a polyurepthane lining that allows nothing to pass through h. Second Absorbent Layer • All grease that lbws through the first layst Is absorbed at Ihle slap. This filler also acts as a repellent to raln• walar. When II rdno, the glossa is held In Iho after, white the water p14e4e onto the rdol. r Frame • Anodlsod aluminum j axtrusbn that is Impervious to Air Plow Layer • Keeps abeorbant filler above any standing walor whilo allowing air to drallats property INDughdul the Grease Guard. Gros" Guard Unit Slzes and Weights Model No,. Lenoth Width Hslghl JITITUN't i We{tgbl -SW. 00 24 24' 1 2 ibs. SK G 36 35 48' 4' 261bs. 00 30: 3B' 3B" '4' 3" 20lbs. 0 48. 48' 48' 4 3' 221ba. ACC 8?- 80 4' 1 3 a. 00 72' 72' 7T' 4' 3" 39lbs. GOO 72. 72" 60' 4' 1 3' 35166. 00090• gO" 80' 4 3' Mlbe• Many Major Restaurant Chains Arm Currently Protecting Their Roofing Investments With The Grease Guard. Some of the National restaurant chains Include: Chills TGI Friday's Fuddruchers Applebees Burger King Ground Round Ruby Tuesday Chevy's Mexican W. • 5140 Wan Mounted Unlit OOC•Cuelom Steed Unhe 111 ": ill 11.1' 8landerd Dreeae Ouard • Uu Wllh Typlal ?lael end Downblul Fan1 epedtyiry A 81IrMard Oreaee Guard I. Delermine IN oOW@ alb dmenrlon-A' shown Ish. P. Determine Pw model number by mlCMrp dmenslon'A' between ma proper mkpmw and mealmum Curb 0I @a Shown bebw. Model I _ Dlmenefon "A" 130 72 1 I1" Min to 67- Mee Pitched Root Cuslmn fllOrww guard • Use Whh U64ee1 or •6qubrel Ceps' Eahauel Fans 6pedrypp A Custom R Druse Duerd 1. Delem*ia Pw Woh, dmenom-A*, • whbh Is the oveNl IIAP of IM Ian and ar). 8N Iluskallon Idl. 2. Drlmmine the modal number by malahkq drtwnslon'A' balween the propar Mnknw and meaklium cum elrea el:e,an Mu,W_ A Make-up I Air System Sidswawll Unit J Q OFFICE OF THE SHE0.fYF rl! PENNSILOWN 30 2500S se wa ag UVP LEVIN MANAGEMENT CORPORATION IN THE COURTOF COMMON PLEAS Agent for FALK US PROPERTY INCOME : CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant CIVIL ACTION - LAW NO. 99-5991 PRAF.CIPF. TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Counsel moves the Court to reinstate the Complaint in the above-captioned matter which was filed on or about September 30, 1999, to be able to obtain service of the Complaint upon Defendant. McNEES, WALLACE & NURICK By Vrtkephcn?son atthes Attorney I.D. No.67408 100 Pine Street P. 0. Box 1 166 Harrisburg, PA 17108-1166 (717)232-8000 0-j6 Mark W'05.ri, .A-ce, ?-p ?II ?A X70 ?? Attorneys for Plaintiff Levin Management Corporation agent for Falk US Property Income Fund, L.P. successor to Carlisle Marketplace Limited Partnership . LL.1 L- I I: . LL O Q1 -? u'. U j LEVIN MANAGEMENT CORPORATION Agent for FALK US PROPERTY INCOME FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5991 NOTICE OF INTENTION TO ENTER JUDGMENT BY DEFAULT TO: J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA c/o Mark Wilson, President, DEFENDANT DATE OF NOTICE: December 7, 1999 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU ON PLAINTIFF'S COMPLAINT WITHOUT A HEARING. AS A RESULT, YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013-3387 Telephone: (717) 249-3166 McNEES, WALLACE & NURICK By '/Lta -M • Lt? Rhonda M. Weaver, Esquire Attorney I.D. No. 82047 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: 1 ? 1-71q q Qom. f0 yy j` ILI '; IIL „" SHERIFF'S RETURN - REGULAR CASE NO: 1999-05991 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LEVIN MANAGEMENT CORP VS. J M R FOODS INC ET AL KATHY CLARKE Sheriff or Deputy Sheriff of CUMBERLAND County, Pennsylvania, who being duly sworn according to law, says, the within REINSTATED COMPLAINT was served upon J M R FOODS INC D/B/A LITTLE CEASERS PIZZA the defendant, at 16:00 HOURS, on the 16th day of November 1999 at 32 CHARISMA DRIVE CAMP HILL, PA 17011 CUMBERLAND County, Pennsylvania, by handing to MARK WILSON a true and attested copy of the REINSTATED COMPLAINT together with NOTICE and at the same time directing His attention to the contents thereof. Sheriff's Costs: So answers-.,, Docketing 18.00 ii e Service 9.30 Affidavit 2 Surcharge 8.00 omas ine, 5 $72=37-MC I?EES, WALLACE & NURICK 11/18/1999 epu y3 eri Sworn and subscribed to before me this 9 M, day of k&,z„ 19? A.D.//? ro on LEVIN MANAGEMENT CORPORATION IN THE COURT OF COMMON PLEAS Agent for FALK US PROPERTY INCOME CUMBERLAND COUNTY, PENNSYLVANIA FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP, Plaintiff V. CIVIL ACTION - LAW J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant NO. 99-5991 TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Pursuant to Pa. R. Civ. P. No. 1037(b), please enter judgment in favor of Levin Management Corporation, Agent for Falk US Property Income Fund, L.P. Successor to Carlisle Marketplace Limited Partnership, Plaintiff, in the above-captioned action, and against J.M.R. Foods, Inc., d/b/a Little Caesar's Pizza. Defendant, in the above-captioned action, for failure to file an Answer to Plaintiffs Complaint within twenty (20) days from the date of service of said Complaint, and assess Plaintiffs damages in the total sum of $64,666.32 as principal, plus interest, late fees, collection costs and attorneys' fees, until Defendants obligation is paid in full. I hereby certify that a written Notice of Intention to File this Praecipe for Entry of Default Judgment was given in accordance with Pa. R. Civ. P. No. 237.1; a true and correct copy of the aforesaid Notice is attached hereto. I hereby certify that the last known address of the Defendant(s) is J.M.R. Foods, Inc. d/b/a Little Caesar's Pizza c/o Mark Wilson, President 32 Charisma Drive Camp Hill, PA 17011 By McNEES, WALLACE & NURICK Rhonda M. Weaver, Esquire Attorney I.D. No. 82047 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 i Attorneys for Plaintiff Dated: QdL"c7 LEVIN MANAGEMENT CORPORATION Agent for FALK US PROPERTY INCOME FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP Plaintiff V. J.M.R. FOODS, INC., d/b/a IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW LITTLE CAESAR'S PIZZA, ? ;0 Defendant NO. 99-5991 mac: :h n,1- n -_ NOTICE OF INTENTION TO -' ' - ENTER JUDGMENT BY DEFAULT D TO- J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA c/o Mark Wilson, President, I)I*ENI*NT.,:Z. DATE OF NOTICE: December 7, 1999 a YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU ON PLAINTIFF'S COMPLAINT WITHOUT A HEARING. AS A RESULT, YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 1 Liberty Avenue Carlyle, Pennsylvania 17013-3387 Telephone: (717) 149-3166 McNEES, WALLACE & NURICK Rhonda M. Weaver, Esquire Attorney I.D. No. 82047 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff Dated: 1a 171 a q U.S. POSTAL SERVICE 'RTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR IN5UR N : STMASTEq 7 Reealved F.= p b f unol, 1--b n; 1D?? Q e ??RC? 4 rI l 7/U / % One Plaee of ardinart, mail R jildsoused to: . z 6 ?e? JA % 3CQ ar) r19_ br.'Y (G«0 F .. ICJ I9 PS Form 3817, Mar. 1989 -U.S.0.76 .:,gw-=MM9277 } y U7 F- CV 04 C--- ? :v C NCD , LEVIN MANAGEMENT CORPORATION Agent for FALK US PROPERTY INCOME FUND, L.P. Successor to CARLISLE MARKETPLACE LIMITED PARTNERSHIP, Plaintiff V. J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-5991 TO: J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA c/o Mark Wilson, President ?.rm You are hereby notified that on , 1/3 -1.99"he following Judgment has been entered against you in the above-c , tioned case. DATE: j/L? -__/3 XZ , /.i i? 6 9 PROTHONOTARY/ A: J.M.R. FOODS, INC., d/b/a LITTLE CAESAR'S PIZZA c/o Mark Wilson, President Por este medio se le esta notificando que el de del 199_, el/la siguiente (Orden), (Decreto), (Fallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Protonotario Certifico que In siguiente direccion es la del defendido/a Begun indicada en el certif icado de residencia: J.M.R. Foods, Inc. d/b/a Little Caesar's Pizza c/o Mark Wilson, President 32 Charisma Drive Camp Hill, PA 17011 I hereby certify that the name and address of the proper person(s) to receive this notice under Pa. R. Civ. P. 236 is: J.M.R. Foods, Inc. d/b/a Little Caesar's Pizza c/o Mark Wilson, President 32 Charisma Drive Camp Hill, PA 17011 McNEES, WALLACE & NURICK Rhonda M. Weaver, Esquire Attorney I.D. No. 82047 100 Pine Street P. O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Plaintiff