Loading...
HomeMy WebLinkAbout07-3817 John P. Rodgers, Esquire Attorney for Plaintiff, Gateway Square Associates Identification No. 79998 Law Offices: Wetzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 Phone: (570) 823-0101 Fax: (570) 825-7799 GATEWAY SQUARE ASSOCIATES, Plaintiff VS. LEE WOODALL trading as LEE WOODALL ENTERPRISES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - -LAW JURY TRIAL DEMANDED No. 07 - 3 7 ('! u ~ . T~~zJ'''~ NOTICE 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 a judgment may be entered against you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bradford St. Carlisle, PA 17013 (717) 249-3166 800-990-9108 Respectfully ESQUIRE ~tzel, Caverly, Shea, Phillips & Rodgers 5 Public Square, Suite 210 Wilkes-Barre, PA 18701 (570) 823-0101 John P. Rodgers, Esquire Attorney for Plaintiff, Gateway Square Associates Identification No. 79998 Law Offices: Wetzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 Phone: (570)823-0101 Fax: (570)825-7799 GATEWAY SQUARE ASSOCIATES, Plaintiff VS. LEE WOODALL trading as LEE WOODALL ENTERPRISES, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - -LAW JURY TRIAL DEMANDED No. ~~`I " 3 ~~~~ COMPLAINT AND NOW, comes the Plaintiff, GATEWAY SQUARE ASSOCIATES, by and through its Attorney, John P. Rodgers, Esquire, and files this, its Complaint and avers as follows: 1. That, the Plaintiff, Gateway Square Associates, is a Pennsylvania Company with its principal place of business located at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004. 2. That, the Defendant, Lee Woodall, trading as Lee Woodall Enterprises, has its principal place of business located at 1110 N. Mountain Road, Harrisburg, Dauphin County, Pennsylvania 17112. 3. That, at all times relevant hereto, the Plaintiff, Gateway Square Associates, was the owner and operator of Gateway Square Shopping Center, located at 125 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. Defendant which includes the costs as averred in paragraph five; (c) such expenses that include, but are not limited to attorney's fees and court costs. 9. That, pursuant to the Lease Agreement, the Defendants, failed to pay rent in the amount of Forty Three Thousand Seven Hundred Eight and 00/100 ($43,708.00) Dollars for the months of July 2004 through October 2004 for which claim is herein made. 10. That, pursuant to the Lease Agreement, the Defendants, failed to pay certain costs related to common area maintenance, real estate taxes, insurance, water charges and sewer charges, including costs for "Initial Common Area Charges" and for "Initial Real Estate Taxes" in the amount of Nine Thousand Five Hundred Nineteen and 40/100 ($9,519.40) Dollars for the months of July 2004 through October 2004 for which claim is herein made. 11. That, pursuant to the Lease Agreement, the Plaintiff is entitled to interest at a rate of 18% per annum on any unpaid rents already earned at the time of termination and Plaintiff is entitled to any interest which would have been earned after termination until the time of award which totals Nineteen Thousand Four Hundred Thirty Five and 51/100 ($19,435.51) Dollars for which claim is herein made. 12. That, pursuant to the Lease Agreement, the Plaintiff terminated the lease, effective October 1, 2004. A copy of notice of termination addressed to the Defendant is attached hereto, made a part hereof and labeled Exhibit "C". 13. That, despite the repeated demands of the Plaintiff, Defendant has failed to pay the sum of Forty Thousand Three Hundred Ninety-Six and 53/100 ($40,396.53) Dollars plus interest of Nineteen Thousand Two Hundred Seventy and 84/100 ($19,270.84) Dollars together with reasonable attorney's fees and costs pursuant to the Lease Agreement. ~ ~ WHEREFORE, the Plaintiff, Gateway Square Associates, requests this Honorable Court to enter judgment in i#s favor and against Defendants, Lee Woodall trading as Lee Woodall Enterprises in the amount of Fifty-Nine Thousand Eight Hundred Thirty and 80/100 ($59,830.80) Dollars together with costs, interest and reasonable attorney's fees. Jgfild-gt~f2~~RS, ESQUIRE Vd€tzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 (570) 823-0101 Attorney for Plaintiff, Gateway Square Associates VERIFICATION That, the language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and the factual information contained therein is true and correct to the best of my personal knowledge, except as to any averments specifically to be "on information and belief'. To the extent that the factual averments of the foregoing documents are stated to be "on information and belief', the averments are true and correct to the best of my information and belief. To the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification and said content is true and correct to the best of my information and belief. That, I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to falsification to authorities. i Dated: d ~ Patricia M. Smith Property & Leasing Manager Becker Associates Exhibit "A" . ~ LEE WOODALL ENTERPRISES. INC TENANT Date:_December 5.2003 ~~ LEASSE AGREEMENT . THIS LEASE dated this ~of ~~e+~ 20 I Between GATEWAY 50UARE A.5SOCIATES . Naving an address at SUITE 140111 PRESIDENTIAL BLVD., BALA C'Y:VWYD, F ("Landlord") and LEE WOODALL ENTERPRISES, I:YC. Having an address at X941 MONTARAY DRIVE: MECRANTCSBURG. PA 17055 ("Tenant"). Certain Fandsimentai I,esise Provisions are presented in this Section aad reps agreement of fife parties hereto, subject to inrther definition snd elaboration in the ~ referenced'Sections`elservhcre`in'this Lease: Shopping Center: Located is the Gateway Sauare Sbonuine Center, 125 Gateway ~4lechanicsburg: PA '. Demised Premises: Containing approximately.,~,8 73Z sgnare feet as shown as Sto Aftd oatlincd in red'~on Exhibit " A" attached hereto. Peruifiitted Use: Heakh~Clab/Gym ; Under the style sad trade name of "LEE WOODALL ENTERPRISES. INC.." and. other purpose. (See Paragraph Twenty). Lease Start Date; Rent Commeneement Date' Lease Termiaatiott Date Minimum Annual Rent Initially Monthly Rent Payments Initially Initial Comtpon Area Charges. 12!31/03 or neon execution of Lease by both na 7/1/04 6/3012019 '' . S1.31.124.00 ' (See Paragraph Two P: S 10.927.00 (See Paragraph Two Pt S 967.82 ~ (See Paragraph Nn Initial Taz Share 5 936.60 (See Paragraph Twenty -S Initial Monthly Remittance S 12.831.42 _ Percentage Rent Factor :NIA (See paragraph Nineteen) Term ~.5 Years (See Paragraph On. Security Deposit 510.927.00 ee Paragraph Tw dUe i~ days l~~c ~ Re[ereuces appearing in the.Fandaroental L use rov i ar to designate the other places 1n this Lease where.additional provisfons applic .ble to the particul . Fundamental Lease Provisions appear. Each reference in this Lease to any of thr . Fundamental Lease Provisions on Pages 1, 2 and 3 shall be construed to incorporat terms provided for under such provisions :and aach provisions shall be read in conj with sll other provisions of this Lease applicable thereto. _ If there is any conflict br . of the Fundamental Lease Provisions set forth on Pages 1, 2 and 3 and any other pr this Lesse, the latter shall control. The listing on Page 1 of monetary charges pays! Tenant shall not be construed to be an cxhaustivo list of all monctat3! amounts pays Tenant under this Lease... . . 2 . LEASE AGREEMENT THIS LEASE dated this of December. 2003 Between GATEWAY SQUARE ASSOCIATES Having an address at SUITE 140111 PRESIDENTIAL BLVD., BALA CYNWYD, PA 19004 ("Landlord") and LEE WOODALL ENTERPRISES INC Having an address at 1941 MONTARAY DRTVE_, MECHANICSBURG PA 17055 ("Tenant"). Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto, subject to farther definition and elaboration in the respective referenced Sections elsewhere in this Lease: Shopping Center: Located in the Gateway Saaare Shounine Center 125 Gateway Drive. Mechanicsbure, PA Demised Premises: Containing approarimately 18.732 square feet as shown as Store ElO1C And outlined in red on Exhibit "A" attached hereto. Permitted Use: Health Clab/Gym Under the style and trade name of "LEE WOODALL ENTERPRISES. INC "and for no other purpose. (See Paragraph Twenty). Lease Start Date: _ 12/31/03 or anon execution of Lease by both narties Rent Commencement Date 7/1/04 Lease Termination Date 6/30/2019 Minimum Annual Rent Initially $ 131.124.00 Monthly Rent Payments Initially $ 10.927.00 Initial Common Area Charges Initial Tax Share Initial Monthly Remittance Percentage Rent Factor Term Security Deposit S 967.82 S 936.60 $ 12,831.42 (See Paragraph Two Page 3 & 4) (See Paragraph Two Page 3 & 4) (See Paragraph Nine) (See Paragraph Twenty -Siz) N/A (See paragraph Nineteen) 15 Years (See Paragraph One) $10927.00 (See Paragraph Twenty-Flue) References appearing in the Fundamental Lease Provisions are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions on Pages 1, 2 and 3 shall be construed to incorporate all of the terms provided for under anch provisions and such provisions shall be read in conjnnetion with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions set forth on Pages 1, 2 and 3 and any other provisions of this Lease, the latter shall control The listing on Page 1 of monetary charges.gayablc by Tenant shall not be construed to be sn exhaustive list of all monetary amounts payable by Tenant under this Lease. i ~ Rent For The Demised Premises Is As Follows: Base rent will be increaseYl. by 5•/. every three (3) years. 7/1/04 -6/30/07 - S131,124:00 annually; S10,927.00 monthly 7/1/07 -6/30/10 - S137,680.80 annually; 511,473.35 monthly 7/1/10 - 6.30/13 - S144,564.21 annually; 512,047.01 monthly 7/1/13 - 6/30/16 - 5151,792,42 annually; 512,649.36 monthly 7/1/16 -6/30/19 - S159,382.04 annually; 513,2.81.83 monthly It is also understood and agreed that Tenant accepts the premises in "As Is" condition. Tenant will receive 6 months free rent with rent commencement to begin Jaly i, 2004. Tenant agrees to pay Common Area Maintenance and Real Estate charges for the months of 11~ay, 2004 and dune, 2004. Tenant agrees to do the build out of the premises in accordance with all state and township regulations. Tenant wiU also be responsible for architectural drawings (if required) and all necessary permits. Tenant nedeXstands that the usage for said premises is for a health club/gym facility. Landlord will not permit any nntritionat or.weight loss programs that violate any ezisting tenant use.. Tenant will have.first right of refusal to lease the space presently occupied by the Central Pennsylvania School of Gymnastics upon non-renevKal or default. 3 i• ~ , Landlord and Tenant having the following notice addresses on the date of this Lease: LANDLORD - - Copy tos Phone Number 610-668-9820 GATEWAY SQUARE ASSOCIATES SUITE 140111 PRESIDENTIAL BLVD. BALA CYNWYD, PA 19004 ' TENANT Copy to: Phone Number: LEE WOODALL ENTERPRISES, INC. 717~~g 1941 MONTARAY DRIVE /~ 11ZECIiANICSBURG, PA 17055 (J -This Lease Agreement consists of 43 paragraphs, a plan of the Shopping Center marked ezhibIt "A", Sign Criteria marked EzhWlt "t<";set of Tonant Sigu Standards marked Ezhibit "C-A", all of which are igcorporated herein and by reference made a part hereof as if set forth at length; all of which are attached hereto: IN WITNESS WHEREOF, this Lease has been duly ezecated by the parties hereto, intending to be legally bound thereby, under seal as o[ the date and year first written above. WITNESS :GATEWAY SQUARE ASSOCIATES "7 Mkt,. - CiG y~E¢Ga LEE OO~ALL ENTERPRISES, INC. t~~z',~, ~~/ ~~~~ ~PritS bR-r~ 4 The Landlord does hereby lease and demise to the Tenant, and the Tenant does hereby accept the lease from the Landlord, upon the terms, covenants, conditions, and limitations hereinafter set forth, the Demised Premises as set [orth on'Page One of this Lease Agreement. For the use and occupancy o[said Demised Premises during the term of the Lease, Tenant shall pay to Landlord a guaranteed minimum rental in the amounts apecitied on Pages One and Two hereof; a proportionate share of the ezpenses o[ operating the common areas of and a proportionate share of the real estate taxes from time to time Imposed against the Shopping Center, and:uc6 other charges as maybe required to be paid by the Tenant hereunder, all as hereinafter more parttcalarly set forth, The parties hereto; intending to be legally bound hereby, further covenant with each: older as follows: ONE. COMMENCBMBIVT'DATE.`: The terra shall commence on the ezpiratioa of 30 days after notice :to Tenant that the Demised Premises are ready !or occupancy by Tenant, or the date when Tenant commences business operation, whichever is sooner (hereinafter called ' "Commencement Date" ); and the term shall ezpire on the last day of the calendar month In which there shall have elapsed the time set forth on Page Qne hereof as the Term. If the Comme®cemeat Date is not on the first day of a calendar month, rent [or We period between Commeaeemenf Date and the first day of the following awnth shall be apportioned at the annual rate heretaabove provided (based on a 360 day annual basis) and shall be due and payable on the Commencement Date. As soon as Commencement date has been determined, memoranda la the form appended hereto and marked Ezhlbit "C", shall be signed by Landlord and Tenant confirming the matters herein set forth. TWO. PAYMENTOFLEASB. All guaranteed minimum teats, and ezcept as-Gray be herein otherwise provided, all percentage rents, additional rents and any other lease charges due hereunder:hall be payable in equal monthly installments; in'advance without set-off or deduction of any kind, upon the first day of each calendar month of the term at the office of the Landtord, or at such other place as the L~odlord may from time to time designate, all without relief frontvaluatjon aad~appraisement laws. The parties covenant And agree that any payment of rent or additional rent made hereunder may, at We option of the Landlord, be accepted and applied ht payment on account of the rent or additional rent IOagest overdue ' under this Lease, notwithstanding any statement to the contrary endorsed on or . accompanying each payment.' Should any payment or installment of such rent or additional teat not be made on the date.when itsliall have become due and payable, Landlord shalt be entitled to collect a late charge thereon equal to one and one-half percent (1.5%) per month, or the highest legal rate~permitted by law, or a fraction thereof of the amount or amounts ~ . overdue, the same to be deemed additional rent hereunder. ' Ezcept~as herein otherwise specifically provided, it is the intent of the parties that the teat, additional rents sad other ezpensea which may become due and payable by Tenant hereunder shall be absolutely net of any and all charges, assessments; impositions, costs, expenses or deductions of every kind or nature applicable to-the Demised Premises, or the use and occupancy thereof, the Tenant to be solely respons161e therefore and the Landlord to Gave absolutely ao ItabIllty or respoasibtllty whatever in connection therewith. . THREE. REPAIRS, ORDINANCES, AND'f'IOLATIONS. The Tenant covenants that no waste or damage shall be committed within; upon or to the Demised Premises; that the same shall be used for only the purpose hereinabove stated, shall not 6e used for any unlawful purpose and that no violations of law or ordinance or duly constituted authority shall be committed thereon. Throughout the term hereof Tenant shall take good care othee Demised premises, including without limitations, the electrical and plumbing systems from their points of entry therein; the heating, ventilating and air conditioning system and the ~electrlcal system servicing Demised Premises and any and all doors, molding, trim, window frames, door frames, closure devises, door hardware, door hinges and/or windows as well as firtures and appurtenances and all alterations, additions and Improvements to same; and Tenant shall make all repairs and replacements to and about the-same, In part and In their entirety, as may be necessary to preserve them in good order and condition. All repairs and replacements shall be equal in quality to the original work and Tenant shall promptly pay the ezpense of such repairs and replacements, suffer no waste or Injury to Demised Premises, give prompt notice to the Landlord of any damage that may occur, ezecute and comply with all laws, rules, orders, ordinances sad regulations at any time issued or in force, applicable to the Demised Premises or to the Tenant's rase and occupancy thereof, of the Landlord and/or the Municipal, City, County, State,~Federal Governments and of each and every department, bureau and official thereof, and of the Board of Fire Underwriters having jurisdiction thereof. Landlord wilt keep in repair the structural elements, ezterior, roof and common areas of the Shopping Center, provided the Tenant shall give Landlord written notice of the necessity for any such repairs thereoo, and provided further that fhe damage to the same shall not have been caused by the negligence or careless act of Tenant, In which event Tenant shall be responsible there[ore. Landlord's obligation with respect to repairs to the Demised Premises shalt be only as ezpressly set forth in this Paragraph Three, and all costs incurred la connection therewith shall be Included as part of the ezpenses Incurred by Landlord under and pursuant to the provisions of Paragraph Nlne hereof. At the ezpiration o[ the term Tenant shall peacefully surrender the Demised Premises to the Landlord in good order and repair, and broom clean. FOUR. INCREASED FIRE INSURANCER.lTES. Tenant shall not do, suffer to be done, or keep; :or suffer to be kept anything In, upon or about the Demised Premises or xake any action which would void, make voidable, affect the enforceability of or Increase the premlam for any of Landlord': insurance policies insuring.against loss~or damage by fire or other hazards, Inclading but not limited to pu611c liablltty, or which will prevent Landlord from procuring each policies in companies acceptable to Landlord. II Tenant allows the Demised Premises to remain vacant or anything be done, omitted to be done or suffered to 6e done by Tenant, or kept or suffered by Tenant to be kept In, upon or about the'DemLsed ~' Premises that shall caase the rate of fire or other insurance maintaisied'thereon by the Landlord in companies acceptable to Landlord to be Increased beyond the minimum rate from time to time applicable to the Demised Premises when fully occup'ted~by Tenant or to its ase for the purpose perm[tted ander this lease or to the ase of each other property of Teaaat . as may be kept or maintained therein, Tenant will pay as an additional rent hereunder the amount of such Increase promptly upon Landlord's demand.. Should any use of vacating the ~ Demised Premises by Tenant operate in any manner to void or make voidable any such inaaraace policy or otherwise affect its enforceability by Landlord then Landlord shall have the right (la addition to all other remedies available to Landlord] to terminate-this Lease upon thirty (30j days written notice to Tenant. FIi2: ASSIGNMENT OR SUBlET1'ING. Tenant ezpressly covenants that It wlil not assign, mortgage or encumber this Lease not ander-let or sublet or suffer or permit the Demised Premises or any part. thereof, Whether by license, concession, or otherwise, to be used by others without the prior written rnnsent o[Landlord in each instance. In the event the Tenant hereunder shall be.a corporation any transfer, sale,-pledge, or other disposition of the . . corporate stock or voting securlttes of the Tenant shall be deemed an assignment of this Lease and therefore prohibited without the ezpress written consent of Landlord. At all times during the term of this Lease and any renewal thereof, It is hereby agreed that all persons signing on behalf of the Tenant corporaNon.shall be officers and directors of said Tenant corporation sad they will collectively own at least 75% or more of all stocks, egaiHes, and securities of said Tenant. If this Lease be assigned or if the Demised Premises or any part thereof be sublet under-let or occupied by anyone other than Tenant without the ezpress written.consent of Landlord first Lad and obtained, Landlord may collect rent [rom the assignee, undertenant, user or occupant and apply the net amount collected to all rent herein reserved, bat no such assignment, underletting, occupancy or collection shall be deemed a waiver of this covenantor the acceptance of the assignee, undertenant, user or occupant as Tenant, or a waiver or release of the performance by Tenant's part to be herein observed and performed, In the event the Landlord's wrItten.consent to any assignment or subletting is granted hereunder, the Tenant shall, nevertheless, remain liable to perform all covenants and conditions 6y the tenant to be observed and/or performed hereunder, and to guarantee such performance 6y the assignee orsub-tenant, and such consent shall in no event be deemed continuing for the purpose of any subsequent assignments and/or subletting, each of which shall require the separate written consent of Landlord first bad and obtained for which Landlord may, at Its option, require the payment of ad administrative fee of 5250.00 is each instance. 6 SIaG BANgRUPTCY OR INSOLVENCY. A. Lease Resection In Bankruptcv. In the event the Tenant shall become a Debtor under Chapter 7 of the Bankruptcy Code, and the Trustee or Tenant shall elect to assume this Lease for the purpose of assigning ' the same or othcrvrise, such election and assignment may be made only if all terms an~~ conditions o[ Puagraph Siz hereof are satisfied. If such Trustee shall fall to elect to assume this Lease within aizty (60) days after the filing of the Petition; the Lease shall be deemed to have been rejected, unless for cause shown, the Bankruptcy Court shall, prior to ezpiration of said sixty (60) days, have eztended the time !or assumption of this Lease. Landlord shall be thereupon immediately eutided to' possesaiou of the Demised Premises wiWbut further obligation to Tenant oc the Trustee, sad this Lease shall be cancelled, but Landlord's right to be compensated for damages is such Uquidation proceeding shall survive. $. Conditions for Aaaumotion of Lease - 1. In the event that a Petition for reorganization or adjastmeat of debts is tiled coacerniug Teuaut under Chapter I1 or 13 of the Bankruptcy Code, or a proceeding is tiled under Chapter 7 of the Bankruptcy Code and is converted to Chapter it or 13,'the Trustee or Tenant, as Debtor and Debtor-In-Possession, mast elect to assume this Lease within sixty (60) -days from the date of ftUng of the Petition-ender Chapter 11 or 13, or the Trustee or Debtor ..sad Debtor=In-Process stiall be deemed to Gave rejected this Lease, unless for cease shown, the Bankruptcy Court ahs116ave prior to the ezpiration of said slzty (60) days Gave eztended the time for assumption of this Lease. No election by the Trustee or Debtor and Debtor-In- Possession to sesame this Lease, whether under Chapter 7,11, or 13,'shaU be effective unless each of the following conditions, which Landlord and Tenant acknowledge. are commercially reasonable in-toe contezt of a bankruptcy proceeding of Tenant, have been satisRed, sad Landlord has so acknowledged in writing: ~(a) The Trustee or the Debtor and Debtor-In-Possession bas cured, or ' has provided Landlord adequate assurance (as defined below) that: . (i) Within ten (10) days from the date of such assumption, the Trustee wW cure aU monetary'defsults under this Lease; and (Ii) Within thirty (30) days from the date of such assumption, the . Trustee wiU curealloon-monetary defanlts under this Lease. (b) The Trustee of the Debtor and Debtor-In-Possession has • compensated, or has provided to Landlord adequate assurance (as defined below) tL'at within (10) days from We date of assumption . Landlord will be compens&ted for any pecuniary loss incurred by . Landlord arLsing from the default o[ Tenant; the Trustee, or the Debtor and Debtor-Ia-Possession as recited In Landlord's written statement of ' pecuniary loss sent to the Trustee or Debtor and Debtor-In-Possession. (c) The Trustee of the Debtor and Debtor-In-Possession has provided Landlord with adegaate'assurance o! the future performance of each of Tenant's, the Trnstee or Debtor and Debtor-In-Possession's obligations under this Lease, provided however, that: _ (i) The Trustee or Debtor and Debtor-In-Possession shall also deposit with the Landlord, as security for the timely payment, an amount equal to two (2) months rent (as adjusted for,charges pursuant to Six B(lxc)(iIi)(below) and other monetary charges accruing ender this Lease in Addition to anypreviously deposited security under paragraph Twenty-five hereof; and - . (ii) If not otherwise required by the terms of this Lease, the Trustee or Debtor and Debtor-In-Possession shall also pay In advance on the date minimum rent Is payable 1/1201 of Tenant's annual obligations under this Lease for added charges. (lit) From and after the date of assumption of this Lease, the Trustee or Debtor and' Debtor-In-Possession of the minimum rent otherwise payable hereunder, plus the average amount o[ the annual percentage paid by Tenant to Landlord within the flue (5~ year period .. prior to the date of Tenant's petition under the Bankruptcy Code, which .amount shall be paid is advance in equal monthly Installments on the ` date minlmnm rent is payable. (iv) The obligations imposed upon the Trustee or.Debtor and Debtor-Ia-Possession shall continue with respecfto Tenant or any assignee of thLv Lease after comp[etion`o[ bankruptcy proceedings. (d) The assumption of this Lease will not: (i) Breach any provision in any other lease, mortgage, financing agrcement or other agreement by which Landlord is bound relating to the Shopping Center; Or (ii) Disrupt the tenant balance, the tenant mix or the Shopping Center or any other attempt by Landlord to provide a specific tenant balance (or tenant tniz) of retail_atores in Shopping Center which would be most beneficial to.all. of the tenants in tie Shopping Center and would enhance the image, reputation, and protItability of the Shopping Center. 2. For the purpose of this Section Siz B, Landlord and Tenant acknowledge that, in the rnntext of a bankruptcy proceeding of Tenant, at a minimum "adequate assurance" shall mean that the Trustee or Debtor and. Debtor-In-Possession has sad will continue to have:afl)eient anencuml~ered assets after the •payment of all secured obligations and administrative ezpeases to assure Landlord that the Trustee or Debtor and Debtor-In- Possession wUi have aaflicient funds to fulfill the obligations of Tenanfnnder this Lease, sad to kcep t6e,Demised Premises stocked with merchandise and properly staffed with sufficient . employees to conduct a fully operational, actively promoted business on the Demised Premises. C. Landlord's Rieht to Terminate. In the event tbat this Lease is assumed by a Trustee appointed for Teaant or by Teaant as Debtor and Debtor-In-Possession under the provisions of Section Six B hereof and thereafter ' Tenant is Uquidsted or files a sabsequeat Petition or reorganization or adjustments of debts adder Chapter 11 or 13 of the Bankraptcy.Code, then, and la either such events, Landlord .may, at~its optbn, terminate this Lease and aU rights of Tenant hereunder, by giving Teaant written notice of its election to so terminate, within thirty {30) days after the occurrence of each events. For the purpose of this Section Siz C; Landlord and Tenant acknowledge that, in the context of bankruptcy proceedings of Tenant, at a minhnum "adequate assurance of future performance!' shall mean that each of the following conditions have been aatisiled, and' Landlord has so acknowledged hi writing:`... 1. The assignee has submitted a current certified financial statement prepared: by a Certified Public Accountant which shows a net worth and working capital in the amounts determined to fie sufficient by Landlord to assure the future performance by such assignee of Tenant's obligations under this Lease; 2. The assignee bas submitted In writing evldence,aatlsfactory to Landlord, of substantial retailing ezperience in shopping centers o[ comparable size to the Shopping . Center and in the sale.of merchandise and services permitted under this Lease; and 3. The Landlord has obtained all consents or waivers from any third party . required under any.lease, mortgage, financial arrangement or older agreement by which Landlord is bound to permit Landlord to consent to such assignment. D. Use and Occuaancv in Bankruptcy When, pursuant to the Bankruptcy Code, the Trustee or Debtor and Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of Demised Premises or any portion thereof, such charges shall not be less than the minimum rent as defined in this Lease and other monetary obligations of Tenant for added charges. E: State Law. Neither Tenant's interest in Wis Lease, nor any lesser interest of Tenant herein, nor any Estate of Tenant hereby created, shall pass to any trustee, receiver, assignee for We benefit of creditors, or any other person or entity, or by operation of law or otherwise under the laws of any state having jurisdiction or the person or property of Tenant (hereinafter referred to the "state law") unless the Landlord shall consent to such transfer fn writing. No acceptance by Landlord or rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to be waived, nor shall It waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's interest under this Lease without such consent. • 8 ezpeoded or incurred by Landlord in connection with the Shopping Area and/or the Common Areas or all general maintenance and repairs, (including those made in performance of Landlord's obligation aader and pursuant to Paragraph Three hereof), resurfacing, painting, striping, cleaning, sweeping, and providing Janitorial services; management services ..maintenance and repair of sidewalk, curbs, Shopping Center signs, sprinkler systems, planting and landscaping; providing lighting and other utilities; directional signs and other markers and bumpers; the operations, maintenance and repair of any [Ire protection (including sprinkler) rystems, storm drainage systems and other utility systems; the cost of all personae) to implement such services including, if Landlord deems necessary, the cost of providing security guard service; any and aU personal property taxes and assessments on the improvements and land comprising said Common Areas, as well as any governmental Imposition or surcharge imposed upon Landlord or assessed against the Common Areas or say portion thereof; theiees, costs, or ezpenses, If any, required [or the maintenance and preservation of any rights arising under any REA; the costs of ezpenses, If any, of providing and malatalning anysecurity alarm system for the benefit of the Tenants of the Shopping Center; depreciatiou'o[any machinery and equipment used in the maintenance and thg~ operation of the Cotnu~on Areas (if owned) and/or the rental paid for each machinery and egaipment (if rented); premiums. for insurance coverage !or the Shopping Center (including the building of which the Demised Premises is a part) under each policies with such companies and iu such Uiuits as Landlord may, in its judgment determine select (including but not . limited to fire tasarance with eztended coverage, UabiUty Insurance covering personal Injury, death, and property damage with a personal Injury endorsement covering [else arrest, detention or imprisonment, malicious prosecution, libel and slander, and wrongful entry or eviction, worlunen'a compensation. insurance, plate glass insurance, rent insurance, contractual Iia6iUty Insurance, sad fidelity bonds);'the cost of removing snow, ice, rubbish and debris from the Shopping Center, as well as the cost of inspecting the same and regulating. trafic thereon; the cost of heating, ventilating -and air conditioning enclosed. Common Areas; the cost of providing and replacing uniforms for, as weU as for the gross compensation o[ ail personnel required to supervise and accomplish the foregoing; and the rental paid for any music service programs and/or loudspeaker rystems provided for the Shopping Center .generally, including th~e.coat of faraishing the electricity therefor; plus an amount equal to [I[teen (15%) percent of the total of all such ezpenses, whether herein specifically mentioned • or otherwise contemplated by the Intent hereof, to reimburse Landlord for is administrative and overhead costs !n providing the accounting, bookkeeping and collection functions required In connectbn therewith. - In consideration of Landlord's agreement to operate and maintain the Common Areas, 7,'enant covenants and agrees to pay a proportionate share of the ezpenses advanced and/or incurred. by Landlord therefor in each Lease year or Fartial Lease Yeat• (as those terms are defined iu Paragraph 19 6ereofj daring the term o[this Lease, as herein before provided: While the Tenant's proportionate share of each ezpeases shall not exceed a sum equal to the product obtained by multiplying (i) the tool of al ezpensea advanced or incurred in each • Lease Year by (in a fraction the numerator of which shall be the cumber of square feet of [loot area in the•Demised Premises and denominator of which shall bethe-number of square feet of leasable floor area lp.the Shopping Center, the Landlord shall annually estimate the - total cost of such ezpeases for the Shopping Center on the basis of its ezperieace and reasonably anticipated ezpenses therefor, and the Tenant shall pay to the Landlord, on the first day of each calendar month, together with Its monthly installment of mipimum rent due hereunder, an amount equal to 1/12 otits proportionate share thereof. As soon as practicable following the close of eacp Lease Year, the Landlord shall submit to Tenant a statement indicting the actual amount of the ezpenses advanced and/or incurred by Landlord in performing its obUgations hereunder for the immediately preceding Lease Year, the actual amount of Tenant's proportional share thereof, the amount of We Landlord's~estlmate thereof for such Immediately preceding Lease Year, and the amount o[ the re:4ulting balance due . thereon, or overpayment thereof, as the case may be. Appropriate adjustment shall thereupon be made between the parties, on demand,'on the basis of such statement. Earle statement shall be binding upon Tenant, its successors and assigns, as to the matters set forth therein, if no objection is raised with respect thereto ninety (90) days after submission of each statement to Tenant. Tenant shall have the right to ezamine Landlord's books sad records at the o[fices of Landlord during ordinary business hours not more than once In each Lease Year for the purpose of verifying the matters set forth in the statement for the immediately preceding Lease Year. For and during the first Lease Year (or Partial Lease Year) as the case may be,.the Tenant's estimated proportionate share of the expenses [or operating and 10 maintaining the Common Areas of the Shopping Center shall be payable monthly In the amounts as set forth as "Initial Common Area Charge" on Page One hereof, the same to be deemed additional rent hereunderand subject to the annual adjustment heretofore provided. Tenant covenants and agrees that If the Lease Is terminated by reason of default on Its part, or if it fails to take possession of the Demised Premises or vacates the Devised Premises prior to the expiration of the term hereof, it shall remain liable to pay its proportionate share,nf such expenses. Tenant agrees that this is not to be construed as a penalty, but rather as a portion of the proper measure of Landlord's damages In the event of the breach of this Lease by Tenant as aforesaid. TEN. STORE APPEARANCE OUTSIDE. Tenant shall maintain its show windows, if any, in a neat and clean condition,=shall keep the sidewalks and Common Areas adjacent to the Demised Premises clean and [ree from rubbish, shall store all trash and garbage within . the Demised Premises or within`adjacent closed containers not visible to the general public, and shall arrange,for the regular pick up of trash and garbage. Tenant shall not burn trash of any kind in or about the Demised Premises,~nor shall Tenant permit rubbish, refuse or gartiage to accumulate or fire hazard to exist about the same. ELEVEN. SIGNS. The Tenant shall sot display any sign, picture, advertisement, awning, verchandise, or notice on the outside of the bullding of which the Demised Premises hr a part, nor on the interior or erterlor of any plate glass of the Demised Premises, without theprior written consent of Landlord first had and obtained ln'eachanstance. It shall be the obligation o[ the Tenant to install; display an'd'thereafter tnaintaln on the frost fagade of the Demised Premises, A permanent outdoor, illumin'ated alga, identifying its business operation in accordance.with and subject to a plan or aketch'there of tote prepared by Tenant and submitted to Landlord for Its prior. approval which approval shall not be ' unreasonably withheld. To establish guidelines 3or thesigns, type, color And design of such sign, Landlord has prepared Tenant Sign Standards, the same being attached hereto, made a part.hereof and marked Ezhibit'!C", it being to intended that Tenant's plan or sketch o[said sign shall be v pursuance of specifications and requirements Wereln-set forth. In addition to the foregoing, Tenant shall have the farther obligation to install, display and :thereafter maintaht such aader-canopy:Ign identifying its busluess operation, as Landlord may require intheevent-there is included In the overall design of the Shopping Center such a canopy structure. In that event, the size, style, color and design o[ the Tenant's under-canopy sign shall be subject to xnd in accordance with the standards, specifications, and requirements relating to sdc6 signs as promulgated by the Landlord. All work required or the installation and maintenance of the aforementioned signs, or . either of them, shall be performed by Tenant ln-a good and workmanlike manner, in accordaace with the rules; regulations, codes and ordinances of the authorities having jurisdiction thereo[, at the sole cost and expense of the Tenant with no expenditure whatever . required of Landlord in c~nnectlon therewith. TWELVE. OUTSIDE DISPLAYS. The Tenant shalt not display. any merchandise, place vending machines or show case or other obstructions or-any other object on the outside of the Demised Premises or the building of which the Demised Premises is a part, upon the G'ommoa Area adjacent to the Demised Premises. THIRTEEN.. INTERIOR ALTERATIONS. Tenant may, at'its expense, make such alterations and improvements to the interior, non-structural portions of the Demised Premises and install interior partitions as it may require, provided that the written approval of the Landlord be first obtained and that such improvements and alterations are done in a .workmanlike manner in keeping with all building codes anti regulations and in noway harm the structure of the Demised Premises, provided. at the expiration of this Lease or any extension thereof, Tenant, if requested to do so by Landlord, at Its expense, shall restore the witl-in Demised Premises. to Its original condition and repair any damage to the Demised Premises resulting from the installation or removal of such partitions, fixtures, or equipment as may have been installed by Tenant. ~ ' The Landlord reserves the right, before approving any such changes, additions, or alterations Involving costs and expenditures in excess of S5000.00 to require tite Tenant to furnish it a good and sufficient bond to assure that the Landlord is indemnified and held ' harmless from the payment of any claims, by way of either damages or liens. All of such changes, additions, or alterations shall be made solely at the expense of the Tenant; and the 11 Tenant agrees to protect, indemnify and save harmless the Landlord.oa account of any injury to any persons or property, by reason of any each changes, additions'or alterations, and to protect, indemnify and save harmless Landlord from the payment of. any claim of any kind or character on account of bills for labor or material furnished Ia connection therewith. FOURTEEN. FIRE. If the Demised Premises are damaged by fire or other insured casualty, not occurring through any act or failure to act on the part of Tenant, its agents, servants, employees, and each damage can. be repaired within 120 days of the date of such occurrences, this Lease shall remain in fail force and effect, and the Landlord shall promptly repair such damage at Its expense, and in the event, there shall be a proportionate abatement of rent [or so much of the Demised Premises as may be untenantable during the period of repair or restoration.. If In the opinion of A registered Architect or Engineer appointed by the Landlord the Demised Premises are damaged by fire or other casualty to sack an extent that the damage cannot be repaired or restored within 120 days troro the date of such occurrence, or that such damage is due to any.act or failure to act on the part of the Tenant, its agents, servants, or employees, this Lease shall terminate at the option of the Landlord upon written notice given within thirty (30) days after snch occurrence.. If this option is-not exercised by Landlord, Wan this Lease shall continue !n full force and effect. If 25% or more of the building of which the Demised Premises is a part is damaged by fire or other casualty to such an extent that the same cannot be restored within 120 days of the date of such occurrence, this Lease may be cancelled at the option of the Landlord upon thirty (30)`days written notice from the date of such occurrence, even Woag6 the Demised Premises have not become untenantable, and there shall be a proportionate adjustment of rent to the date of termination. In addition, there shall be na obligadon on the part of the Landlord to repair or rebuild during the last three (3) years of We:term of this Lease unless Tenant within fifteen (15j days utter such occurrence, shall have exercised any option to extend the termm of this Lease that may be afforded to Tenant ander.the terms hereof. Landlord's obligation to repair. or.rebuild pursuant to this Paragraph Fourtcen shall be limited to a basic building'and the replacement of any interior work which may have-originally been installed therein at Landlord's cost. Except as herein`provided, there shall be no obligation on the part of Landlord to repair or rebuild In case of fire or other casualty.:. FIFTEEN. HOLDOt2R. If the Tenant shall occupy Demised Premises without the written consent o[ the Landlord alter the expiration of the term of this Lease, and rent is accepted from said Tenant, such occupancy and payment shall be construed as an eztegs~on of this Lease for the term of one month only from the date of each expiration, and occupation and payment thereafter shall operate to extend the term of tLis Lease for bat one month at a . 'time unless other terms of each extension are reduced to anci expressed in writing and signed by the parties hereto. In Such event if either Landlord or Tenant desires to terminate said occupancy of the end of any.monW after the termination of this Lease, the party so desiring to terminate the same shall glue the other party"at least twenty (20) days written notice to that effect.. Failure on the part of Tenant to give such~notice shall obligate It to pay rent for an additional calendar month, following the month in which the Tenant has vacated the Demised Premises. If snch occupancy continues without the consent of the Landlord, the Tenant shall pay to Landlord as liquidated damages, double the amount of rent and all other charges at the highest rate specified in this Lease [or the tLne Tenant retains possession of the Demised Premises or any part thereof_after termination of the term by lapse of time or otherwise. SIXTEEN. INSPECTION. Landlord expressly reserves the following rights: (a) to enter the Demised Premises at any time to examine or to make such repairs, additions or . alterations as it may deem.necessary for the safety, improvement, or preservation thereof, or of the building of which the, Demised Premises is a part, but Landlord assumes no obligation to make any such repairs other than as expressly stated in this Lease,• and (b) to enter the Demised Premises and display and maintain a notice or sign "FOR RENT" and/or "FOR SALE" at any time within six months before the expiration or on the sooner termination of this Lease; and (c) during or after the time Tenant abandons or vacates the Demised Premises or otherwise defaults hereunder, to enter and decorate, remodel, repair, alter or otherwise prepare the same for reoccupancy. The exercise of any reserved right by Landlord shall never be deemed an eviction or disturbance of Tenant's use and possession of the Demised Premises nor shall It render Landlord liable in any manner to Tenant or to any other person. 12 SEVENTEEN. LIABILITY. Landlord shall not be underany responsibility or liability in any way whatsoever for the quality, quantity, impairment,. interruption, stoppage or other Interference with service involving water, sewer, heat, air conditioning, gas, electric current •-for light and power, telephone or any other service.. . Landlord shall not be liable [or any damage'to property of Tenant or o[ others located oa the Demised Premises, nor for the loss of or damage to any property of Tenant or of others by theft or otherwise. Landlord shalt not be Uable for any injury or damage to any property resulting from (but not limited to) tire,•ezplosion, falUng plaster, or ceiling tiles, steam, gas, electricity, water, rain, snow or leaks from any part of Dem[sed Premises or from the pipes, appliances, or plumbing works or fro~ri the roof, street or sub-surface or from any other place or by dampness or by any other cause of whatsoever nature. Landlord-shall not be liable for any such damage caased by other tenants of the buUding of which the Demised Premises is a part or persons id'the Demised Premises, occupants of adjacent property, of the Shopping .Center, or the pubUc or.cattsed 6y`opemtions in construction of any private, public or quasi- . public work.:AU property of Tenant kept or stored on the Demised Premises shall be so kept at the risk of.Tenant only and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carriers. .EIGHTEEN.. LIABILITYFOR DAMAGESAND PLATE GL,4SS=TENANT. The Tenant agrees to be responsible for any damage to the property of the Landlord which may result from any use of the Demised Premises or any act done thereon by the Tenant or soy person comiag or being thereon by the Ucense or permission of the Tenant,, ezpress or implied; to save the Landlord harmless from any UabUity to any person'or Estate, for damage ' to person or. property, resultbYg from any such causes, and to protect such UabiUty with comprehensive public IlabUity and property damage Insurance, having a single limit liaBlllty of at least S1,000,t100•for damage to all property and for all occurrence resulting la bodily sad/or personal injury to• or the death of one or more persons• and consequential damages resulting there from, and to furnish Landlord on the Commencement Date a certificate issued by the insurance carrier evidencing such insurance in force, with Landlord and its Agents covered thereby. Tenant agrees to replace all glass' broken, damaged, or destroyed in any • ~ meaner whatever, the Tenant assuming all responsibility for. any plate glass in the Demised Premises, and to cause such Uabllityto be protected by plate glass insurance at Tenant's ezpense, and further to deposit such plate glass insurance policy or certificate showing each insurance in• force with Landlord at the Commencement Date of the term of this Lease. In the event that Tenant does not procure each insurance as aforesaid, Landlord may, at its option, purchase-the same in the name. of the Tenant and/or'at its option include such coverage in any master poUcy cabled by Landlord.: If Landlord ezerclses its rights hereunder the Tenant shall, npon demand, pay all costs thereof to Landlord together with an administrative charge of SI00.00 [or.each such coverage made by Landlord on behalf of Tenant. • ~ ETEEN. PERCENTAGE RENT: Tenant agrees to pay Landlord as addition to foregoing minimum rest, a sum equal to the amount of which th ni m rent to be paid any Lease Year (as hereinafter defined) is less than the P centage Rent G Factor times or mal ed by the gross sales (as hereinafter defined) o e Demised Premises, for. said Lease Year, ands being hereinafter sometimes refere o as "percentage rent". On or before the tenth `~) day after the ezpiratlou ach month Tenant shall submit to Landlord a statement sh ng in reasonable 1, the amount of gross sales of the .Demised Premises during the preceding nth. _If ercentage RentFactor times or . multiplied by the gross sales made durWg t eding month shall be in excess of the minimum-rent payable with respect to sal rec 'month than the amount of such excess shall be paid over to Landlord at the a time as the diNon of said monthly statement. If the Commencement Date shall b er than the first day o calendar month, then the first month's gross sales stateme nd percentage rent due, pursue this paragraph, shall include the portion of onth from the Commencement Date,to t rst day of the nett succeeding calend onth. • Each se Year during the term hereof shall be considered as an inde dent accounts eriod for the purposes of computing and determining the amount of p entage ren any, payable hereunder, and the amount of gross sales in anyLease Year shall t be rled over Into any other Lease Year. If the guaranteed miaimum and percentage rent is 13 aid by the Tenant with respect to any Lease Year shall exceed the Percentage Rent Fact r t es or multiplied by the Tenant's gross sales for each Lease Year, the amount of such cars pe entage rents actually paid shalt be credited against the next accrniag Installment o last Invents of minimum and/or_percentage rent due hereunder. The term "gross sales" shall mean the entire amount of the actual sales pri n 5 wholly partly for cash or on credit, of all sales of merchandise and services, and other ©i" receipts al[ business conducted la or from the Demised Premises, iacluding cat og, electronic nd telephone sales, and including all deposits not refunded to porch err, orders taken in or om the Demised PremLses although said order may be tilled else ere; sad sales by any sables coacessioaaire or licensee la or from the Demised Premises hall be treated as if We sales re made by Tenant with the proper notation as to the sour of such sales, and all without c edit to Tenant for uncollected or uncollectible credit acc ots. There shall be excluded from toss sales" and sums collected and paid out for any lee tax or tax based upon the sale or sal . of merchaadL4e and required by law, whether no or hereafter in force, to be paid by Tenant r collected;from its customers, to We extent tha such fazes are to be charges and collected s stately and to be rendtted by Tenant to the zIag authorities~The term 'igross sales" shall of ioclnde the exchange of merchandise b cen the stores of Tenant, of any, where su exchange of merchandise Is made sole for the convenient operation of the Tenant an aot for.the purpose of consummati a sale which is theretofore bcen made sit, in, from or u the Demised Premises or for th purpose of depriving Landlord of the beaefit of a sa which would otherwise be m eat, in, -from or neon the ..Demised Premises; nor shall aai term include the amount r rned to shippers or .manufacturers, aor the amount o ray cash or credit re[un made upou;any sale where merchandise sold, or some part the t, is.t6ereafter rata ed by the purchaser to and accepted by the Tenant. Each sale u on installment or edit shall be treated as a sale for the full price in the month during which. s c6 sale shall be ade lrrespecdve of the time when Tenant shall receive payment:(whether it or partia from its customers. TenanCahall and hereby agrees to cep the D mired Premises, during the term hereof, for a period of three (3j consecutlve years: Ilow the end of each Lease Year, a permanent,. complete and accurate record of all gross sa revenue derived from business conducted in the Demised Premises for each Lease Year. Want farther agrees to keep, retain and preserve for at least two (2) years after the ez flora of each Lease Year, alt original sales records and sales slips or sales checks and o er rtinent original sales records. Accurate non-resettable cash registers or other mode syst shall be Installed and kept, or caused to be installed and kept, by the Tenaat with the De Premises, which shall show, record and preserve, in complete detail all it aking up ors sales, as 6ereina6ove defined. AU such records, iacluding sales tax repo -and busiaesa a d occupation tax records and all other records and books kept by Ten tin relat[on to W usiness conducted an the Demised Premises sha1C be open'to the inspce nand Audit of Land rd and its representatives or agents at all reasonable times dud ordinary business hou ..Tenant shall also submit to Landlord on or before the thirtiet (30"'j day following the en of each Lease Year at the place then fixed for the paymen f rent, a complete audited eta ement made and certified by a Certified Public Accountant a also certified by a duly autho officer of Tenant, showing . accurately in reasonable data the amount of gross sales made by errant and its sublessees, concessionaires, or Ucensees f any, upon and within the Demised P mires during the preceding Lease Year or P rtlal Lease Year, if any, and shall submit nor before the thirtieth (30"') day following the a iration of termination of the term~a like eta meat covering the preceding Lease Year o artial Lease Year, if any. Ia the event tha the Tenaat or parties aftillated with Tenant coed t one or more . operations or stores a her with the Shopping Center or elsewhere, the Lan ord is hereby given the right to in ode in its audit an inspection of all books and records o uch other stores or chain-wi operation in order to satisfy itself as to the proper allocafi and inclusions of gros sales to the Demised Premises. Failure o the Tenant to meet a scheduled audit date at the time fazed by th Landlord shall be deeme a default under this Lease-and Landlord, In addition to all other re edies afforded to i radar this Landlord, shall be promptly'reimbursed by Tenant for al co is of such sched ed audit together with an administrative fee of 5100.00. FaI re of Tenant to promptly supply Landlord with the monthly and/or annual reports r aired Iereunder shall be deemed a default under this Lease and, in addition t all other r edies afforded to it under this Lease, Landlord shall be entitled, without notice t the Te ant, to conduct an audit of Tenant's books for such period or periods during which 14 ~ 1 . . Want has failed tq supply Landlord with the reports at the cost and.ezpense of the T ant Ten t together with an administrative fee of S100.00. receipt by Landlord or any statement or payment of percentage re period or ailare of Landlord to make ea audit for said period shall neither d Lan ord - . as to correctnes f the statement or the payment,"nor bar Landlord from c ecting at any / `time thereafter perc rage rent due for said period. if-any siudit by La ord or its agents of~~l Tenant's records shalt r al a deficiency of any payment of perce ge rent Tenant shall forthwith pay to Landbrd amount of deficiency together w an interest at s rate of twelve percent (12%) per annu rom the date when said went should Gave been made, together with reasonable cost of suc udit. It is agreed Wat nothing contain n the L e.shaU be deemed or construed as creating a partnership or joint ventare betty andlord and Tenant, or between Landlord and any other party; or cause Landlord t e r nslble in any way for the debts or obligations of Tenant, or any other p For the purposes of Wts e, the "first Lease "shall mean a period beginning January 1'` following the Co encement Date hereof and a nding twelve (12) calendar months'thereafter, endia ecember 31'; and each pubs vent se Year shall be the twelve consecutive calendar nth period thereafter (January ~ to Dece r 31'x). The period from the Commen Date of this Lease to the next succeeding December ~, and from the January 1'~ t.preceding, and extending to the termWatlon date of this Le shall be ...consider as "Partial Lease Years", and any changes under this Lease which a computed on ase.Year basis shall be appropriately pro-rated so as to be computed as aepa a and tinct accounting periods ht accordance with the terms and conditions aforesaid. TWENTY. BUSINESS OPERATION.. Tenant shall, during the term o[ this Lease, continuously use the Demised Premises for the purpose stated on Page One of this.Lease, carrying on therein Tenant's business undertaking diligently, assiduously and energetically under We trade~name stated on Page"Onc.~Tenant shall maintain on the premises a substantial stock of goods, wares, and merchandise and egaipment, adegaate to assure saccessful operation of Tenant's business. Tenant shall keep the premises open and available for business activity therein during all usual days-and hours as are set by the Landlord except when prevented by strikes, Mes, casaalty or other causes beyond Tenant's reasonable control. • Tenant shall not divert elsewhere any trade, commerce or business which ordinarily would be transacted by Tenant in or from the Demised Premises. Tenant.ahall not conduct any "Are sale'', "distress sale"; bankruptcy sale", "going out of business sale", or any other sale designed to rnnvey to the public that the business operations are to 6e discontlnaed and Tenant shall not apply.for or cause to 6e applied from . say municipal, state, local, or federal license or permit applicable to such sales. , TWENTY-ONE. WAIVERS. The failure o[ Landlord to insist, in any one or more instances upon a strict performance or observance by';Tenant of any of the covenants of this Lease, or to exercise any option herein contained;'shall not be construed as a waiver or relinquishment for the future of such covenant or option, buC the same shall continue and . remain in full force and effect. The receipt by the Landlord of rent, with knowledge of the breach by Tenant of any covenant hereof, shall not be deemed a waiver of such breach and no waiver by the Landlord of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the Landlord. Even though the Landlord shall consent to an assignment and/or subletting hereof no further assignment and/or subletting shall be made without express consent In writing by the.Landlord Arst had and obtained in each instance. TWENTY-TWO. SUBORDINATION..: This Lease, at the option of Landlord, shall be . subject and subordinate at all.tlmes, to the lien of the mortgages now or herea[ier made upon the security of the shopping Center or the Demised Premises, and to all advances made or hereafter to be made upon the security thereof, and subject and snbordinate to the lien of any . mortgage or mortgages which at any time may be made a lien upon the same; and subject and subordinate to any lease or other arrangement or right to possession under which Landlord is In control of Demised Premises and/ or the Shopping Center and~to the rights of the owner or owners.thereof, and/or the rights, privileges, and burdens arising from any ILEA affecting the Shopping Center.. The Tenant hereby appoints the Landlord the attorney-in-fact of the tenant, to execute and deliver any such Instrument or instruments for the Tenant. X15 • _.:.__ . -The Tenant shall have no power to do aay act or make any contract w61ch may create or be the' foundation for.-aay lien, mortgage or other encumbrance upon the estate of the _ Landlord:or of any lntereshof the Landlord In We Demised Premises,'or: upon or is the buildingof which tho Demised Premises is a part of otherwise within or npoo the Shopping ~~Center, It being agreed that should the Tenant cause any auch improvements, alterations or ..repair: to be made or material furnished or labor performed therein or thereon, neither the Landlord nor the Demised Premises nor any other portion of the Shopping Center shall under aay circumstances be 1[enable for the purpose of enforcing payment of aay of the expenses incurred or-for the value of any work done or material furnished thereto or any part thereof, the parties expressly intending that hereby all Improvements, altentlons, repairs, materials - add labor shall be performed at the Tenant's- sole cost and expense aad the Tenant shall be `solely and wholly responsible to contractors, laborers and material men furnishing labor and material In connection therewith, all such laborers, material men and contractors being hereby charged with notice that they mast look solely and woolly to the Tenant and We .Tenant's interest In the Detnlsed Premises, to secure the payment of any bills for any such work performed and materials furnished.. ~ . TWENTY-THREE. DEFAULT. (a): (1) If Tenant shall default in the payment of any rent or other payments required of Tenant, or any part thereof and if auch default shall . continue for five (S~ days after. the payment shall be due, or (2).if Tenant shall default in the performance or observance o[ aay; older agrcement or condition on its part to be performed or observed and if Tenant:hell fait to cure said default withal ten (10) days After notice of said default from Landlord, or (3) if any person shall levy upon, take, or attempt to take this leasehold interest or any part thereof upon execution, attachment or other process. of law, or (4) I[ Tenant or any affiliate of Tenant shall make default with respect to. any other Lease or agreement between it or Landlord or suy affiliate of Landlord, or (S) if the premises shall be deserted, vacated, abandoned,or business operations shall sot be conducted therein for a period.of two (~) or more days, or (~ Itthls Lease, or any other interest Werein shall by operation by law devolve apon or pass to any person or persons other than Tenant, or (~ if Tenant shall fail to move into and take possession of the Demised Premises and open for business within thirty (30) days after.Landlord's giving notice to Tenant that the Demised Premises are ready for occupancy by Tenant, then the~Landlord may treat the occurrence of say one or more of the foregoing events as a breach of this Lease, aad is addition to any or all other rights or remedies of the Landlord hereunder and by the law provided, it shall be, at the option of the Landlord, without further notice or demand of any kind to Tenant or aay other person: (a) the right of the Landlord to declare the term hereof ended and to reenter the premises. and take possession thereof aad remove all persons therefrom, and . the Tenant shall Gave no farther claim thereon or. hereunder; and/or . (b) the right of the Landlord without declaring this Lease terminated to reenter the premises and, occupy the whole~or any part thereof, remove all persons and property therefrom either by summary dispossess proceedings or by a suitable action or proceeding at law or in equity, or by force, or otherwise, without being liable for any damages therefor, no such reentry by the Landlord to be deemed or otherwise construed'as an acceptance of a surrender otthis Lease; and/or (c) the right of the Landlord, even though It may have reentered the premises, to thereafter elect to terminate this Lease aad all the rights of the Tenant in or to the premises. Should the Landlord have reentered the premises under the provLslons of sub- paragraph (b) above, the Landlord shell not be deemed to Lave terminated this Lease, or released the Tenant from its liability to pay the rents and additional rents theq owing~and due and/or thereafter to accrue hereunder, thereafter. to accrue, or its liability for damages under any of the provisions hereof, by any such reentry or by an action in ualawful.detainer, or otherwise, to obtain possession of the Demised Premises, unless the Landlord shall have notified the Tenant ht writing that It has so elected to terminate this Lease, and the Tenant .further covenants that the service by Landlord of any notice pursuant to the unlawful detainer statutes of the State where the Shopping Center is situated and the surrender of possession pursuant.to suc6.notice shall not (unless the Landlord elects to the contrary at the time of or at any time subsequent to the serving of such notices and such election Is evidenced by a written notice to. the Tenant) be deemed to be a termination o[ this Lease. In the event of. 16 any entry or takiag•possession of the premises as aforesaid, the Landlord shall have the right, but not the obligation, to remove therefrom all or nay part of the personal property located therein and may place the same in storage at a pablic warehouse at the expense and risk of the other or owners thereof. . Should th'e Landlord elect to terminate this Lease under the provisions of sub- . paragraph (a) or (c) above, the Landlord may recover from the Tenant as damages: (n -the worth at the time of award of any unpaid rents and additional rents which bad been earned at the time of such termination; plus (ii) the worth at the time of award of the amount of the unpaid rents and additional rents which would have been earned after termination until the time of award, pias•, (Iii) the worth at the time of award of the amoant•of the unpaid rents and additional rents for the balance of the term after the time of award, plus (lv) any other amoant necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or in which the ordinary course of things would be likely to result thereform, including, bat not limited to any hosts or ezpeases by Landlord In mainbining or preserving the premises after each default, preparing the . premises for releting to a new tenant, any repairs or alterations to the premises for each relettiag, leasing commissions, or any other costs necessary or appropriate to relet the premises; and (v) at Landlord's election,-each other amounts in addition to or In ilea of the foregoing as may be permitted from time to time by the laws of the State where the Shopping Center is situated. Aa seed in sub-paragraphs (i) and (1>) above, the "worth at the time otaward" ism computed by allowing interest at the. rate.of eighteen percent (1S•/.) per annum. As used in sub-paragraph{lli) above, the."worth at the time of award" Is'computing by discounting such amount at We lesser of dther-the discount rate of the Federal Reserve Bank situated nearest to the location of the Shopping Ceuter in effect at the time of the award, or eight percent (8%)• For all purposes of this Paragraph 23 the~term "rent" shall be deemed to be the minimum annual rental, percentage rental and all other sums which 6y the terms hereof are deemed additional rent or are oWerwise regalred to be paid by Tenant pursuant to the terms of this Lease. •All such-sums, other than the minimum annual rental, shall be computed on the basLs of the average monthly amoant thereof accraing during the immediatety preceding sizty (60) moaW period, ezcept that if it becomes necessary to compute-each rental before such a sixty (60) monW period has occurred then such rental shall be computed ou the basis o(the average monthly amount hereof accraing during-each shorter period. In.the event of defaalt, all of the Tenant's fiitares, furniture, equipment, improvements, additions, alterstions, and other personal property shall remain on`the Demised Premises and In that event, and continuing during the length of said default, Landlord shall Gave the right to take the exclusive possession ofsameand to use same, rent or charge free, until all defaults are cued, or'at its option, at any time during the term of this Lease, to require Tenant to fo~thwIth remove same, falling which the Landlord may effect such removal at the sole Bost and risk of Tenant. Notwithstanding nay other provisions of the Paragraph 23, the Landlord agrees that if the default complained of, other than for the payment of monies, is of such a nature that file same caanot,be rectified or cured within the period requiring such rectification. or curing as specified In the written notice relating thereto, then such default shall be deemed to be rectified or cured lf.the Tenant within such period shall have commenced the rectification and curing thereof and shall continue thereafter with all due diligence to cease"such rectification and curing thereof and does so diligently complete the same. The'remedies afforded the Landlord In this Paragraph 23 shall be in addition and supplemental to all other rights or remedies which th'e Landlord may have under the laws • then in force: ~ ~ • The waiver by Landlord of any breach of any term, covenantor condition herein contained.shall not 6e deemed to be a waiver of such term, covenant or condition should there occur any subsequent breach of the same or any other term, covenant or. condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of 17 ~ -` Landlord's knowledge of such preceding breach at the time of acceptance ofsuch rent. No covenant, term, or condition of this Lease-shall be deemed to have been waived by Landlord unless-such waiver be in writing signed by Landlord. All sums other than minimum rent due and payable to Tenanf hereunder, such, as, by • way of ezample and not in limitation, percentage rents, common area maintenance expenses, utility charges, real estate fazes, cooperative advertising and promotional charges, attorney's fees, collection fees and coati costs shall be deemed to be and shalt become additional rent hereunder whether or not the same be designated as such, and shall be included in the term "teat" wherever used in this Lease (notwithstanding that the words "additional rent" are used in specific cases, but not used in other cases); and shall, unless otherwise specifically provided herein, be dne and payable on demand or together with-the nezt succeeding installment of rhinimam rent, whichever shall first occur, and Landlord shall have the same `remedies for failure'to pay the same as for anon-payment of minimum rent. The parties hereto distinctly covenant-and agree that any payment of rent or additional rent made hereunder may, at the option of the Landlord, be accepted and applied is payment on account of •the rent or additional rent longest overdue under this Lease, notwithstanding any statement to the contrary endorsed on or accompanying each payment. TWENTY-FOUR ATTORNEY'S FEES. Tenant agrees that in the event that say default.by it in performance of soy of We terms, conditions or covenants of this Lease requires the Landlord, in the ezercise of its sole discretion, to engage the services of any attorney, whether or not an employee`o[ the Landlord, to enforce compliance by the Tenant with terms, conditions and covenaats hereof, We Tenant will reimburse Landlord for any and all expenses incurred in its use for sack attorney and In -any action which said attorney may, pursue. -Such ezpenses shall lnclade bat are not limited to: legal fees, court costs, costs of filing and serving summons and/or complaints, etc.. The term !'default" as used in this paragraph shall mean, but shall not be construed as being Umited in meaning to nonpayment of: minimum rent, percentage rent, atllity bills, fazes, promotion and advertising charges, and common area ezpenee contribution. Tenant further agrees that should itcommit any default or. defaults under this Lease, Landlord may, at its election, immediately or at any time thereafter, without waiving.any claim for breach of agreement, and without notice to Tenant, cure such default of defaults for the accoant of Tenant. If the Landlord shall Institute an action or summary proceeding against the Tenant based upon suchdefault, or if the Landlord shall cure sac6 de_ fault or defaults for the accoant of Tenant, then the Tenant will reimburse We Landlord for the expense of attorney's fees and disbursements thereby incurred by the Landlord, so tar as the same are reasonable in amount.-The cost to the Landlord Wereof shall be due and payable on• . demand, shall be deemed to be additional rent hereunder and shall be added.to the installment of rent nezf accruing or to any subsequent installment of rent due and payable hereunder, of the election oCLandlord. "Landlord shall not be responsible to Tenant for any loss or damage resulting in anylr-annerby reason of its undertaking andpursuing any o[the rights and remedies which by Weterms hereof are reserved to and for the benefit of Landlord. " TWENTY-FIVE. SECURITYDEPOSIT. Concurrently with-the ezecution of this Lease, Tenant shall deposit with Landlord the sum set forth on Page One hereof as Security Deposit, the same to be Geld 6y Landlord without liability for interest,~as security for the full and faithful performance by Tenant of the terms and conditions by it to be observed and performed hereunder. If any of the rents herein reserved, or any other sum payable by Tenant to Landlord become overdue and remain unpaid, or should Landlord make any payments on behalf of Tenant, or should Tenant fall to perform any of the terms and conditions of this Lease, then Landlord, at its option, and without prejudice to any other remedy to which Landlord may have an accoant thereof, shall appropriate and apply said deposit, or so much thereof as may be required to compensate or reimburse Landlord, as the case maybe, toward the payment .of rent or additional rent, or loss or damage sustaine~lby Landlord due to the breach or failure to perform on the part of Tenant, and upon demand, Tenant shall. restore such security to the original sum deposited;., _ Conditioned upon the full compliance by Tenant of ail of the terms of this Lease, and the prompt payment of all teats and other sums due hereunder as and when tuey fall due said deposit shall be returned in full to Tenant within thirty (30) days after the end of the term hereof. " 18 r Iu the eventof a sale of the Shopping Center or lease of the land on which it steads, subject to this.Lease, the Landlord sha116ave the right to transfer the security to the vendee or lessee and the Landlord shall be considered released by the Tenant-from all liability for the return of such secgrity and the Tenant shall look solely to the new Landlord for the return of the said security, it being agreed that this shalt apply to every transfer or assignment made of the security to a new Landlord. The security deposited under this Lease shall not be mortgaged,-assigned or encumbered by the Tenant .without the written consent o[ the r~ Landlord and any attempt to do so shall be void. In the event of any rightful and permitted assignment of this Lease, the said secnrlty depos[t shall be deemed to be Geld by the Landlord as a deposit made by the assignee and Landlord shall have ao further liability with the respect to the return of said security deposit to the assignor. TWENTY~IX REAL ESTATE TAXES. As used herein, We term "Taxes" shall mean 'and include all real estate fazes, assessmeab, Ucense and permit fees charges for any easement, including au I2EA (as herein elsewhere defined), maintained for the benefit of the .Demised Premises and other governmental levies sad charges of every kind and nature whatsoever, general and special, eztraordinaty as well~as grdinary, foresees and unforeseen, and each aqd every Installment theretaf which shall or au~y during the term of this Lease be levied, assessed, imposed, become due and payable or Uens upon, or arise in cosnection with the use; occupancy or possession of, or grow due and payable out of, or for, the entire . Shopping Center of say part thereof, or #ny rest or income received there from, or say land, buildings or other improvemenb thereln,aacladluginterest on installmest paymenb and all- rnsb and fees (including reasonable,attorneys fees) incurred by Landlord in contesting Taxes, assesameab and/or negotiating wiW`pubUc authorities-with respect to the seine: If at any time during the term of this Lease the methods and/or bases of tazatios prevailing at the Commencement Date shall be altered so that in addition to, or is lieu of or as a substitute for the whole or any'part of the Taxes now levied, assessed or imposed oa rest estate as each, , there shall be levied, assessed, or imposed (i) a taz on the renb-received from such real estate, or (ii) a Uce~rse fee measured by the renb receivable by Landlord.from the Shopping Center or any portion thereof, or (lit) a taz or license fee imposed upon Landlord which is otherwise measured by or based in whole or la part apoa rents derived. from the whole Shopping Center. 'or say. portion thereof, then sad lu say of aach evenb,.the same shall•be included in the . ~ computation hereunder of Tazes. Tenant shall pay in each Taz Year during the term of this Lease as addittousl rent, a proportionate share of aU aach fazes, afthe times sad is the manner hereinafter~provtded. While the Tenant's proportionate share of auch.Tazes shall not ezceed a sum equal to the . product obtained by multiplying (i) the total of all Tazes assessed or imposed against the Shopping Center in each Taz Year by (in a fractloai of the numerator of which shall be the number of square feet of floor area in the Deailsed Premises and the denominator of which shall be the number of square feet o! leasable floor. area. in the Shopping Area, the Landlord shall annually estimate the total amount of such .Tazes for the Shopping eater on the basis of its experience and reasonable anticipated charges therefor, and the Tenant shall pay to the Landlord, on the first calendar day of each month, together with lb monthly installments of minimum rent due hereunder, an amount equal to 1/12 of Ib proportionate share thereof. As .soon as practicable following the close of each Taz Year, Landlord shall submit to Tenant a statement indicating We actual amount of the Taxes assessed or Imposed against the Shoopping Center for the immediately preceding Taz year, and the amount of the resulting balagce due thereon, or overpayment thereof, as the case, may be, with an npproprtate adjustment to be thereupon made betweeq the parties, on demand, on the basis of such statement. Each statement shall be binding upon Tenant, Ib successors and assigns, as to the matters set forth therein, i[ no objection is raised with respect thereto within ninety (90) days after submission of each statement to Tenant. The term "Tazes" shalt not include any interest or other charge imposed by any fazing authority as a penalty or delinquency charge, based upon late payment of any tax obligation by the Landlord. . The faUure of Landlord to provide such statement to Tenant as required above shall not relieve Tenant of ib obligations hereunder or for the specific Taz Year In which any such failure occurs, nor shall such failure in any way relieve the Landlord from Its obligation to provide such statement. As used 6ereis, the term "Taz Year" shall be deemed to mean each twelve (12) month period (deemed, for the purposes of this Paragraph 26 to have 365 days) established as the real estate Ta: Year` by tie fazing authorities having lawful )urisdictlon over the property comprising the Shopping Center. For and during the first Taz Year (or Partial Tax Year, as 19 ~~,, r the case may be) occurring during the term of this Lease, the Tenant's estimated proportionate share of the Tazes applicable to the Shopping Center shalt be payable monthly In the amounts set forth on Page One hereof as "Initial Tan Share", payable monthly as above provided, the same to be deemed additional rent hereunder and subject to the annual ,adjustment hereinbefore provided. Tenant covenants sad agrees tbat It if this Lease is terminated by reason of default on Its part, or it if fails to take possession of Demised Premises or leaves the Demised Premises prior to the explraflon of the term hereof, It shall remain liable to pay its proportionate share of such Tazes. Tenant agrees that this is not to be construed as a penalty, bat rather as a portion of the proper measure of Landlord's damages in the event of a breach o[ this Lease by Tenant as aforesaid. If at Any time during the term of this Lease, or any erteaslon or renewal thereof, the laws of any one or more of We jurisdictions in which We Shopping Center is located Imposes, charges, assesses or levies apou'or against the rents (whether guaranteed minimum, percentage rent or additional rent, or any or all of the foregoing), or any'other conslderatlon In lieu of the rent payable hereunder, a taz, imposition, charge, assessment, levy, ezclse !ee or license fee, then In the absence o[ say provision fo the contrary specifically contained in such laws, the same shall be paid in full by We Tenant andauc6 obligation may be enforced by Landlord in the acme way and manner as provided for the enforcement of the payment of minimum rent, percentage rent and additional rent hereunder. Tii'ENTYSEVEN. EMIIYENTDOMAIN. If 10•/. or more of We building of which the Demised Premises is a part or 15°/. or more of the Shopping Center shall be acquired or condemned by right of eminent domain Yor any public or quasi-public ase:or purpose, then Landlord at its election-may terminate thls`Lease by giving notice to Tenant of its election to do so, and in such event rentals shall be apportioned and adjusted as of the date of termination. If the term of thLv Lease shall not be terminated as aforesaid, Wen We same shall continue In fall force and effect,:We Landlord`s6ap within a reasonable time after possession is physically taken (subject.to delays due to shortage of labor, materials or equipment, labor difficulties, breakdown of equipment, government restrictions, fires, other casualties or other causes beyond the reasonable contro`I of Landlord) repair or rebuild what may remain of the ..Shopping Center; ezerting its' best efforts to preserve We Demised Premises !or the occupancy of the Tenant. Should any sack acquisldon or condemnation Include the Demised Premises or any portion thereof and Landlord shall not elect to terminate this Lease as aforesaid, Wen and In such event a just proportion of the minimum rent shall be abated, according to the nature and eztent of the injury of the Demised i'remises, until what may remain .of We Demised Premises shall be repaired and reballt as aforesaid; and thereafter a just proportion of the 'minimum rent shall be permanently abated, according to the nature and ertent of the portion ~ . of the Demised Premises acquired or condemned for the balance of.the term of this.Lease.. Landiord.reserves to itself, and Tenant assigns to Landlord, all rights to damages accruing on account of any such taking or condemnation or by reason of any act of any public or quasi-public authority !or which damages`are payable. ~Tenant.agrees to ezecute such instruments or assignment as may be required by Landlord, to join with Landlord is any' petition for the recovery of damages, if requested by Landlord, and to turn over to Landlord any such damages that may be recovered in any such proceeding. If Tenant shalt fail to ezecute such instruments as may be required by Landlord, or to undertake such other steps as may be requested as herein stated, then and in any such event, Landlord shall be deemed the duty authorized irrevocable agent and attorney-if--fact of Tenant to execute such instruments and undertake such steps as herein stated in and on behalf o[ the Tenant. It is agreed and understood, however, that Landlord does not reserve to itself, add Tenant does not assign to . ~ Landlord any damages payable for trade fixtures installed by Tenant at'its own cost and ezpenses which are not part of We realty. Tll2rNTY-EIGHT: INTERPRETATION. IC is agreed that ~if any provision of this Lease shall be determined to be void by any court of competent jurisdiction then such determination. shall not affect any other provision of this Lease, all of which other provisions shall remain in full force and effect; and it is We Intention of the parties hereto that if any provision of this Lease is capable .of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the proi~Islon shall have the meaning which renders It valid. 20 -.>TWENTY-NINE. ~-MISCELLANEOl/SPROVISIONS.`=It is~agreed ttiat neither ~ ' Landlord nor~;tayoae acting on'its behalf has made any statement, promise or agreement, or taken uponltself snyengagementwhateverwerbally or iu writing; la~conNct wiW the terms of this;LeaseEOrahatln any way modifies,+varles, alters, enlarges or invalidates any of its ~~ provisions'aod that no obligations of the Landlord shall be applied in addition to the obligations herein ezpressed. _ ~ . , . . ..:. a ,Within' ten days after request therefor by Landlord, or in the eventthat it be required upon any :ale; assignment or hypothecation of this Lease and/or of the Demised Premises and/or;the,lapd thereunder by. Landlord,.Tenant agrees to deliver In recordable form a certificate to:any proposed mortgagee or purchaser, or to Landlord, certifying (if such be the case) that this Lease is in full force and e[fect and that there are ao defenses or offsets thereto by,Teaant(orstattng those claimed by Tenant), and each other relevant facts as may be therein regaested. • The title of the various Articles of this Lease are for reference and Index purposes only, and nose of them shall be taken into consideration or given any effect whatever In.. determining the meaning or scope of the Article to which Any o[ them apply. The use o[ any pronou~l referring to either of the parties of this Lease shall be construed to include any or no gender or any number, ;. ~ , r, ~ , . It is understood that the Term Landlord and,.Teasnt used herein, s6a11 be,coastrued to mean Landlords and Tenants where there; Ls,more than one,:und necessary grammatical changes required to make any provisions hereof apply either to:corporations orandividuals, . mescaline or feminine, shall in all cases be:aasumed:as thoagh.fully'ezpressed ~ _.=~ . .:. .. The word "Landlord" as need in Wis Lease means only the other for the time being of Landlord's interest In the Lease.. In the event of any assignment of Landlord's interest in this Lease, the assignor;shall:ao longer be liable,for;the performance or,observaace of soy , agreements of condition9 on the part of the,Landlord to be performed or observed, ' In the event;the Tenant.hereunder shall be a corporation, the parties ezecuting tills Lease hereby covenant'and.werrsint that:: the Tenant is a duly qualified corporation and all steps Gave been taken prior to the date hereof .to qualify Tenant to do business in the state wherein the Demised Premises are located; all franchise and corporate fazes have bees paid to date: all future forms, repottss fees and-other documents necessary to comply with applicable laws will be taken or.filed when due. ;; In addition to the minimum and percentage rents herein provided, all other payments to be made by:Tenant, e1Wer to Landlord or Merchants Association, shall be deemed to be and :hall become additional rent hereander whether or not the same be designated as such, and shall be lncladed.inahe term "rent" wherever,ia this Lease (notwithstandingthat the words'.'additlonalxent"_are used in.specific cases; bat not seed in`other cases); -and shall, unless otherwise specifically provided herein; be due and payable upon demand or together with the next succeedinginstallment.of minimum rent, whichever shalLfirst occur, and Landlord•ahall have the same remedies for failure to pay the same as for a nt-n-paymeat of minimum rent: ~ fi: . , .. , ~:,: s, ,~ ~:~- , s_:i~: Anything contained in this Lease to the contrary notwithstanding.~Tenant agrees that it should look solely to the Estate and property of the Landlord of this Shopping Center for the collection of any judgment (ar other jadlcial process) requiring" the"payment of money by. Landlord in the event of a defAUlt or breach by Laadlprd with the respect to any of the terms, covenants and conditions of this Lease to be observed and/or. performed:by Landlord, and no other property or assets of Landlord shall become subject to levy, execution, attachment or other enforcement procedures for the~satisfaction of Tenant's remedies:.If the building is .> transferred or conveyed, Landlord shall be relieved. of all covenants and obligations under . this Lease thereafter occurring and Tenant shall thereafter look to such transferee for the ' performance and observance thereof... ~ . ., :, .,. , ,. THIRTY..MERCHANTS'ASSOCL4TION. Tenant agrees that as soon as a Merchants' Association is organized, controlled and operated by and among the,tenants of the Shopping . Center, it shall promptly become a member of, and during the term of this Lease and any eztensions or.renewals thereof, if shall abide by the regulations of and remain in good standing such.Association, as well as participate fully in its activities and promotional programs.:; Tenant agrees to pay does to the Merchants'.Assoclation an amount`.assessed per annum, such sum to be used solely for Advertising and promotional purposes, and to be ' payable upon receipt by Tenant of statements or bills being rendered therefore by the Association. Said dues shall be subject to annual adjustments approved by a majority vote of 21 , r Landlord agrees that upon its election to perform any of the work herein, it shall be performed in such a way so as not to interfere with the conduct of the Tenant's ordinary business at the Demised Premises. THIRTY-FOUR SUBMISSIONOFLEASB. The submission of this Lease for examination dues not constitute an offer to Lease, and this Lease becomes effective only upon the execution thereof by Landlord and Tenant. Upon the execution of this Lease by the Tenant, the Landlord is granted by Tenant an option on the part o[ the Landlord for thirty (30) days to ezecute and complete this Lease. Said option may not be withdrawn during said thirty day period. If Landlord shall not ezecute this Lease within said period and immediately thereafter return a fully executed copy to Tenant, the Tenant may withdraw Its offer hereunder. THIRTY--FINK: DELIVERIES. Tenant shall load or unload all merchandise, supplies, fiztures, equipment and faraitnre and cause We collection of rubbish only t6rougli the rear service door or doors of the Demised Premises. No deliveries of any kind shall be made through the front entrance. No delivery veh[c1e shall parkxlong the.curb of the Shopping Center between the hours o[ 10:00 a.m sad 9:30 p.m, or in any area marked "No Loading". No delivery trucks or other vehicles servicing the Demised Premises shall park or otherwise remain upon the parking facilities of the Shopping Center after 10:00 A.M. of each day. The . Landlord reserves the rightto further regulate the activlttes of the Tenantla regard to .. deliveries and aervlchsg of the Demised. Premises; and Tepant agrees to abide by such further . regulations of Landlord. . THIRTY-SI~fG RECORIIING OFLEASE BYLANDLORD. Landlord, may whenever. Landlord. decals it necessary, record this Lease and abstracts and memoranda thereof, whether required or permitted by law, in whatever States or jurisdictions in which the same Lv recordable, at Tenant's sole cost and expense (including, but not limited to, the recording fees, taxes and all other costs~and ezpenses of recordation), wLIch Teaaat ahalipay to Landlord immediately upon such recordation; and farther, Landlord-shall have each right of recordatlon notwithstanding any recordation, if any, of this Lease or any abstracts or memoranda thereof by Tenant, or any other act of Tenant. THIRTY~EVEN. POSSESSION. If Landlord Is unable to tender Tenant possession of the Demised Premises as herein provided, by reason of the holding over of a previous occupant or by reason of any other cause beyond.the control o[ Landlord, Landlord shall not be liable to the Tenant therefor and during the period that Landlord is unable to give possession; all rights, remedies and obligatiops of both parties hereunder shall be suspended. Should the Commencement Date not have occurredJn accordance with the applicable provisions of this Lease within three (3) years from the date hereof, the Lease shall be deemed- ipso facto, null and void, of no force and effect between the parties, and both. Landlord and Tenant shall thereupon be relieved and released from all obligations and !lability hereunder; it.being the sole~intention of We parties hereby to prevent this Lease from becoming void or voidable by virtue of any.rule against perpetuities prevailing in the jurlsdictlon wherein the Demised Premises are situate, nothing herein contained to be deemed or construed to otherwise permit or justify for any reason the postponement o[ said Commencement Date. I[Tenant shall eater the Demised Premises prior to We term hereof, Tenant shall'be liable as herein set out and such occupancy shall be upon the terms and conditions hereof except that rent shall be due at the time set forth In Paragraph One hereof. Such prior occupancy shall be at the sole risk of Tenant. THIRTY-EIGHT: AGENCY. In negotiating and ezecuttng this Lease, Agent is acting as Agent only, and shall in no event be held liable to Landlord or to Tenant or to any other party for the terms, conditions, fulfillment or.nonfulRllment of any of. the terms, covenants andJor conditions of this Lease, or for any action or proceeding that may be taken by Landlord against Tenant or by Tenant against Landlord or be or on behalf or through either of them or any third party. THIRTY-NINE. LIMITATZONOFLIABILITY-LANDLORD. In the event that the Landlord may be or elect to be or to adopt the form of a llm~ited or general partnership or of a Real Estate Investment Trust; Tenant agrees that the Tenant shall (whether general or limited) not file a claim against any partner personally or against any trustee thereof by 23 t reason of any matter arishtg under the terms of this Lease or arising in connection with the use or occupancy of the Demised Premises, bat shall look solely to the Estate and property of the Landlord in this Shopping Center as stated. in Paragraph 29. No personal asset or any partner (general or limited) In such partnership or of say trustee of such Real Estate Investment Trust shall be subject to levy, ezecution, attachment or other enforcement ~procedurea.by Tenant or anyaaccessor or assign of Tenant on account of any. matter whatsoever relating to this Lease or to the use or occupancy of the Demised Premises. Consistent with We iatentlon ezpressed in the immediately preceding paragraph, sad notwithstanding anything to We contrary n this Lease elsewhere set forth; either ezpressed of implied, Tenant agrees that in all events it shall look solely to the. estate and property of the Landlord (regardless o[ whether the entity is a corporation, partnership, trust, individual or otherwise) in the Shopping Center for the collection of any judgment (or other judicial process) requiring payment of money by Landlord In the event of a default or breach by Landlord with respect to any of the terpis, covenants and conditions of this Lease to be .observed and/or performed by Landlord, and no other property or assets of Landlord shall ' become subject to levy, ezecution, attachment or other enforcement procedures for the satisfaction of T'enant': remedies. If the building is transferred or conveyed, Landlord shall be relieved of all covenants and obligations under this Lease thereafter occurring and Tenant shall thereafter look to such transferee for. We performance and observance thereof. . FORTY. This lease L4 granted upon the ezpress condition that Lessee and/or the . occupants of the premises herein leased,shalt not conduct themselves in a manner which the Lessor in its sok opinion lnay deem improper or_ objectionable, and that if at any time daring . 'the term of this lease'or anyeztension or`coutlnaation'thereof,~;Lessee or;any occupier of the said premises shall have conducted himself, herself or themselves in a'manner-which Lessor in its sole opinion deems improper or objectionable, Lessee shall be taken or have broken the ' :covenants and conditions of this lease, and Lessor will be entitled to aA of the rights and remedies granted and reserved herein, for the Lessee's failure to observe any of the covenants and conditions of this lease. . FORTY-ONL Lessee agrees Wat from time to time, wiWin ten (10) days after Lessor's written request, Lessee will ezecate, acknowledge and deliver to Lessor a statement certifying . ~ to each reasonable iaformatlpn regarding this lease as Lessor may request, Inclndhtg, without Ilmitatlon, the commencement and ezpiration'dates of the term of this lease, that this lease is unmodified and in fall force and `effect (br if there have been modifications, that it is in full force and et[ect as ntoditled'add statingahe modiiications), the dates to which minImam rest, additional rest and aU other sams~and chalrges due hereunder (rota Lessee have been paid sad stating whether or not to We knowhsdge ot`the signer of snch certificate, Lessor is in . default under this lease,(and if so, specifying each such default of which signer has . knowledge). FORTY-TWO..The Tenant acknowledges that it has ezamhled the Demised Premises and agrees to accept the same without any representations, warranties or covenants on the part of the Landlord and in the condition commonly referred to as "as Is". 24 ~~ f SECTION FORTY-THREE'ENVIRONMENTAL CONSIDERATIONS 1: befinitions For purposes of this Section Forty-three of this Lease, the following definitions shall apply: . A. "Environmental Release": The term Envlronmental Release shall mean the releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injections, escaping, leaching, disposing, abandoning; discarding or dumping of any Tozic Substance from, on,-Into or about the Demised Premises or the Shopping Center. - B. "Shopping Center": The term Shopping Center shall mean the larger premises of which the Demised Premises as shovrn on Ezhibit "A "and attac6~ed hereto is part. C. "Municipal Waste":. The term Municipal Waste shall have the meaning set forth in the Solid Waste Management Act, 35 P.S. x6018.103. D. "Remediation": Activities 1n connection with the clean-up of an Environmental Release, including bat not Umited to saq~pHng, analysis, excavation, removal, disposal and, replacement of soils, ground water and/or other materials, in Accordance with the provisions of all applicable laws, ordinances and regulations, now or hereafter enacted. E. "Remediation Plan": The term Remediation Plan shat! mean a written plan to effect the Remediation of the Environmental Release which shall be prepared by an environmental engineer acceptable to Landlord..: F. "Tozic Substance": The term Tozic Substance shall'mean a "hazardous subsbnce," , !'pollgfant," or'!contaminant,'!; as such` terms are norv or hereafter defined in all appUcable federal,~~tate; a~nd~local lava, ordlpancea or regulatlous rior~ or'hereafter enacted or amended, sad any'apd-all other terms which'are or maybe axed In any`or all applicable environmental laws nor or hereafter enacted to define prohibited or regulated substances. 2. Tenant shall sot nae the Demised Premises or asiy part thereof, or the Shopping ' Center, or any partthereof, for the purpose of treating, producing, handUng, transferrJng, processing, transporting; disposing, acing or storing a Tozic Substance..., 3. Tenant and Its igents, employees, contractors, licensees and invitees shalt not cease or permit to ezist, as the result of intentional or unintentional action or omission by oae or more of them, an Envlronmental Release.. ' 4. Notwithstanding We foregoing, Tenant may use normal amounts of cleaning • ~ materials and office sgppUes In the ordinary course of Tenaat's business in reasonable quantities and provided the same are axed, stored and disposed of in compliance with all applicable laws, ordinances and regulations, or now or hereafter enacted. ' 5. Tenant shall dispose, remove and/or arrange for the disposal and/or removal o[ its Municipal Waste by a lkensed Municipal Waste transporter or Municipal Waste disposal .. company approved by Landlord and which shall be operated In accordance with applicable laws, ordinances and regulations, Tenant and its agents, employees; contractors, licensees and Invitees shall not place or permit the placement of any Toz[c Substance In anq waste receptacle located in the Demiaed'Premises or the Shopping Center, or the plumbing or sewer systems of the Demised Premises or the Shopping Center. 6. IJ' an Environmental Release Is caused by Tenant as stated in subparagraph 3 above: • A. Tenant shall promptly notify Landlord and any governmental agencies required by law to be notlfied;• and B. Tenant shall promptly submit to Landlord the Remediation Plan for Landlord's approval. The Remediation Plan shall disclose a schedule and detailed description o[ Remediatlon activities which shall include Information as Landlord may request, Including: . (i) a plan for Remediation which shall Include all courses of action as may be necessary to obtain a certificatiop from the Department of Environmental Protection and the Federal Environmental Protection Agency, and any other appropriate local agency, that the Demised Premises and//or Shopping center have beep remediated in accordance with all applicable laws, ordinances and regulations, and to the satisfaction'of these agencies: (iI) reasonable safety measures; (iii} a plan to avoid interference with the operation of the Shopping Center, or any part thereof, and the conduct of business therein; and; (iv) a plan to restore the Demised Premises and/or Shopping Center to the condltioa existing prior to the- - Envlronmental Release, including the replac[ng of soils, landscaping, regarding, repaving and repairing the improvements. Tenant shall modify the Remediation Plan as requested by Landlord. 25 C:; Landlord may, in its sole discretion (I) undertake all'or part of the Remediation, at Tenant's sole cost, or (ii) regaire that Tenant take all steps necessary to promptly remediate all or part of the Environmental Release, in accordance with the Remediation Plan, which 'shall be performed by environmental professionals approved by Landlord. Tenant shall, upon the regaest of the Landlord, deposit with Landlord 125% of the cost o[ performance of the Remediation Plan, as reasonably estimated by Landlord. Portions of the amount deposited with Landlord may, from tlme to time, be released by Landlord to be applied to the cost of performance of the Remediation Pian. D. Upon receipt, Tenant shall immediately sabmit to Landlord true and complete copies of any correspondence between Tenant and any regulatory agency, concerning matters arising out of or relating to an Environmental Release. In addition, Tenant shall keep Landlord [ally intormed of its progress in complying with its obligations under this Section Forty-three of this Lease.. E. Landlord shall have the opportunity to participate with Tenant in negotiations with any governmental aaWorlties involved in the Remediation, leading to the obtalulag 6y Tenant of a.certitication from each governmental agency that Tenant has remediated tGe Environmental Release to the satisfaction of each agency. F. Tenant shall obtain a certiilcation from the "DEPARTMENT" of Envlronmeotat Protection sad the Federal Environmental Protection Agency, and.any appropNate local . agency, certifying that Tenant.haa performed and sattsfactorUy completed We Remediation in accordance with all stpplicable Sawa, ordinances and regulations, a copy of ~-hlch shall be .promptly. delivered to Landlord . G: Tenant shall be responsible for the cost bf repair or replacement of any part of We Demised Premises or-the Shopping Center,'and the ilztures, equipment, personalty, and installations thereon and therein, necessitated by reason of the Remediation: 7. Tenant shall comply with aU appUcable laws, ordinances and regalations of all governmental authorities, as now or. hereafter. enacted, and shall be solely responsible for any necessary alterations or renovations to the Demised Premises; including but not limited to Remediation, strnctaral renovations, or cessation of activities necessary to comply with such taws, ordinances, and regulations. • S. If any certifications regaired in Section Forty Three shall not be obtained prior to the ezpiration or earlier termination of this Lease, they until such certlfication.is obtained, Tenant shall be responsible for and ahall•pay to Landlord an amount, for each day,-equal to one-three hundred atzty-fifth of the aggregate.of the highest amount of Minimum Annual Rest and Additional Rent payable by Tenant in any Lease Year during the five (5) year period immediately preceding, diminished by any rent or other. revenues received by Landlord by reason of the occapancy.of the Demised Premises during each period.. 9. Tenant represents sad warrants thatthe-plans and specifications to be submitted to and/or heretofore aabmitted and approved by Landlord for. We construction, decoration, improvement and/or renovation of the Demised Premises are in conformance with all applicable laws, ordinances and regulations of all governmental authorities.. Tenant shall, prior to commencement of construction, obtain aU licenses, permits and approvals necessary . for construction of the Demised Premises pursuant to the plans and specifications approved . by Landlord, and for the operation for the Demised Premises as contemplated by this Lease, including all lead development requirements. All construction work performed. by Tenant or its contractors shall be in accordance with appUcable laws, ordinances and regulations o[ the governmental authorities having jurisdiction thereof. .-~ 26 10. Except as otherwise allowed or provided herein, Tenant shall not-use any Tozlc Substance on the D.eutised Premises or'the Shopping Center, other°;thatl those subsfapces listed below, which shall be stored in appropriate safety'or protective'containers and`dlspos~ed of in the following a~nouats and frequencies in accordance with all applicable laws`ordiaances and `regulations (U ao Ustiag is included hereander'no such use shalt be permitted or allowed under anycircumstances):.:...,, .m. m .;...,.~, 4:, °,; „ ,~ TOXIC SUBSTANCE USED STORAGE METHOD DISPOSAL METHOD i t. 't _ AMOUNT. DISPOSED RPA/DER PER MONTH ° "" - ' '" GENERATOR LD. NUMBER ' f, (If Applicable) _ .. ... _. . `~ ~ '. ,.. r__ .Teuaq~:haU give prior written uotice~to Landlord of any proposed changes la the above`'scliedale,'and within thirty (30) days after-Landlord's receipt of such notice, Landlord may approi~'e of Tejeef aach=proposed change,° la its'sole discretion. ` ~ ~„ 11. The covenants, representations and warranties provided herein shall survive the • ezpIration or earlier: termination •oI this Lease. ^ ~~ 12 •= Tenant shall pay, defend, indemnify, sad hold harmless Landlord "from sad against any and nU claims, losses, costs,. damages and liabUitiea arising from or relating to . Environmental Releases, Remedtation, or the faUure of Tenant, or its agents, employees,. contractors, Ilceasees'or invitees to comply with the provisions of thin Section Forty-three. • :, ~ ~ ` i • ?, _; L. 2/ ,. , r ~~ ' ~ ' G101 w Ou N Hg's F101 t^ 9 s. ~ ~. d /r ~• ~. ice' ~ ~ Q = .~- Y `. 9~ ~~ ' • :~-• ''a •;. ~~ w~ 11 n i ~ ~ _ _ ~ C ,~: ~$~ ~ ~ v m D ~+ n ~ ~ w t=f ,~ ~' 9 ~ ~ ~ `~ 0 3~ ~ ~ ~a - ~ o y~ v) ~~ ~ o~°. %~' ~~ _~`_ ~ .: l / / / / ~~ ~ ~ ~~ ~ ~ o ~ p. - n' ~ ~ ~ ~ oe ,~ 3 ~ ~ ~ ~ ~ n ~i a~ nz -xxx2xxxxp-n~~mmmoa~a~a~DDDDYDDD. v~ J J oJ J J J J pp J pp pp J J pp pJp Jp J J J J a ~ ~ O O OD J ~ ~ ~ N ~ W N ~ ~ ~ D ~.N w N~~ (1~ A ~ ~.W ~ ~ f~i1 '~ J J J J J ~°,~ W a a . y Inn w ~ pa...._.~~~N- ~°~o~ia .w~~w~~.+~uw~wa-+~~w ~a~sogo~s~~~s$~a~a~~~~~~$oooo~o~-r ~ a x~ r~ d . ~. 1 - H r G1 a -„~ . EXHIBIT "C" SIGN CRITERIA A. GENERAL 1. TENANT is required to identify its premises by a sign, which it shall [urnish and install at [ts own ezpeuse. Signs~shaU meet the Sign Criteria as outlined herein and shall be approved by local authorities, which approval shall be obtained by TENANT and at its ezpense. Any sign which does not conform or is improperly manufactured and/or installed, shall be removed at TENANT'S ezpense: . • 2. All signa~shall be individually lettered and internally illuminated as outlined In this Ezhibit. Signs shall_have Underwriter's Laboratories label of approval on all parts snd completed display. . B. SIGN CRITERIA -EXTERIOR 1. The sign shall 6e located on the exterior fascia, as determined by the LESSOR . 2. Sign wordage shall be limited to the store name only, on a single line.' . 3. The use of logos o~ insignia' (which shall not exceed the average height of sign letters) may btpermitiedf subject to LESSOR'S approval. - 4. The mazimnm height of sign letters or components shall not ezceed 36.inches. The . length of the sign shall not ezceed 80 percent.of the store front. The length of the sign shall be centered over the store front.. 5. LESSOR shall provide wiring for bne (1)120-volt circnlt only to building fascia. Cost and lnst~llation of additional clrcalts wlll be the responsibility. of TENANT.. 6. A detailed description of design staedards is attached hereto as C-A.. C. SIGN APPRbVAL ~ . 1. No sign shall be erected until written specifications and drawings for said sign are . . approved In writing by LESSOR 2. TENANT shall submit to LESSOR three (3) sets of all sign drawings and specifications which shall show the location of the sign on We buildings, the size, construction materials, colors, script, attachment details, electrical load requirements, brightness, In-foot lamberts and name, address and phone number of sign manufacturer/installer. 3. LESSOR shall return to TENANT one set of such signs. plans within fifteen (15) days, with suggested modifications or approval. D. INDEMNIFICATION BY TENANT TENANT shall, at its own risk and ezpense, erect said sign and maintain sign in a good state.of repair. TENANT hereby agrees to indemnify LESSOR against and save LESSOR harmless from any loss, cost or damage resulting from the erection, ~gatntenance, ezistence or removal of said sign and farther agrees to repair, at its sole ezpense, any damage which- may be caused by the erection, maintenance, ezistence or removal of such sign. Upon vacating the premises, TENANT agrees, at its sole ezpense, to remove all signs and repair any and all damage caused by such removal, within thirty (30) days of vacating premises. 29 -~ .: ~ '. r ~, i ~ v r ~ EXHIBIT C-A DESIGN STANDARDS SIGNS , 1. Alt signs ahaU be comprised of indivldnal letters. Sign letters shall.have metal sides aad . back made of .040 gauge aluminum #313 Dark Bronze Duraaodic finish with minimum one- . eighth (1/8") Acrylic plastic [aces, with rip cap edging to match aluminam. These letters are to be mounted directly to the front canopy with non-corrosive fasteners. All attachment devices shall be concealed inside the letter casing. . ~' 2. Secondary wiring and transformers shall be hoaxed in metal condait concealed behind the canopy fascia. No open wiring is permitted: 3. Sign letters not ezceeding two and three-gaarter inch (2'/") stroke shall contain not-more than two (2) rows, nor less than one (1) row,.of 12 mm: neon tubing. 4. Sign letters not exceeding four inch (4") stroke shall contain not more than foar (4) rows, . but not less than two.(2) rows of 12 mm. neon tubing. 5. The color rendition of~neontubing shall be coordinated with We color of the translucent plastic face o[the sign letter. No ezposed tubing or lamps will be permitted..: 6. A1112 mm. mercury-filled neon tubing a6aU be coptrolled by self-contained U.S. approved . 60 MA, H.P.F. 120-volt transformera'(as many as may be required). 30 MA. Transformers may be used with_ornpge, capper or red tubing only. 7. Tenant's sign contractor shall connect sign to wiring provided at a designated location behind ezterior fascia. 8. No~ezposed conduit, junction bozes or raceways permitted. 9. No light leakage wlll be permitted on sides,~back or front of letter. 10. Signs shall not project beyond the front face of building [ascia by more than four (4) inches. 11. All letters within the sign shall b~e one (1) color when sign is IIghted. Clear, smoked or tinted acrylic faces which allow for neon to~be seen will not be permitted. /1 30 r Addendum to the Lease Contract Betweea Gateway Square Associates (Landlord) And Lee Woodall Enterprises, inc. Landlord's Work: Within sixty (60) days, weather permitting of a fully executed. tease document, Landlord- wiU have all roof leaks patched and so that no further leaks penetrate into the demised premises. If weather k not conducive to repair, fife landlord will be required to make repair as soon as weather is acceptable. Landlord agrees to pay for one half of the lowest bid for replacement (units and installation) of the two '(2) nonfunctioning HVAC units for the demised space. The Landlord will not contribute to any upgrades or additional snits necessary for the Tenants intended use. The two (2) existing units for the previous office and pharmacy, which are in good working order, will not be included in the bid to the Landlord. No later than June i, 2004, weather permitting; Landlord vn'll patch aU visible holes primarily caused by prior signage in the front wall of the demised premises above the door and windows, and blend them to appro~amately the same color as the existing color. Tenant will send Landlord, via overnight mail, the security deposit within fourteen (14) days of Lease signing. . ~~ nLl La dtord G~' ~1~" _ Date .: it ess Date ~~% ~ / o e t ~. r ~ D e r`. ~~ Date r . Exhibit "B" s ,. ~, ..~ BECKER ASSOCIATES suITE lao 111 PRESIDENTIAL BLVD. BALA CYNWYD, PA 19004-1086 July 14, 2004 Lee Woodall Enterprises, Inc. 1941 Montaray Drive Mechanicsburg, PA 17055 Attn: Mr. Lee Woodall Dear:M~: Woodall: Telephone: 610-668-9820 FAX: 610-668-4077 As a follow uP to my telephone message of July 8, 2004, we were advised by Jon Powers, the Codes Compliance Officer of Hampden Township that your building permit has been issued for your leased premises at the Gateway Square Shopping Center. By copy of this letter, we are also informing you that you are presently in default of your Lease Agreement dated January 19, 2004 between Gateway Square Associates and Lee Woodall Enterprises, Inc. since we have not received the July rental payment which was due July 1, 2004.... . Can you please remit payment. as soon as possible Thank you, Gateway Square Associates _ ~, `\~i~IGt~000e~ Patricia M. Smith Property & Leasing Manager /pms Certified MaiUReturn Receipt 7001 2510 0008 8934 3070 ~ ~~ a / ~ ,/~v0. re ~%l Sr`'i~ d~fj5e r~0 ~'7f_C /~~ho Sa,,~ie '~aj t 4~,, _ a9a~,~ SUITE 140 111 PRESIDENTIAL. BLVD. BALA CYNWYD, PA 19004-1086 August 5, 2004 Lee Woodall 21 W. Mulberry Hill Road Cazlisle, PA 17013 Deaz Mr. Woodall: Telephone: 610-668-9820 FAX: 610-668-4077 As a follow up to my many telephone messages and my letter of July 14, 2004, please be advised that you aze presently in default of your Lease Agreement dated January 19, 2004 between Gateway, Squaze Associates and Lee Woodall Enterprises, Inc. . If you would like to discuss this matter, please contact our office upon receipt of this letter. If we do not heaz back from you by August 13, 2004, Gateway Squaze Associates will exercise their option as outlined in Paragraph Twenty-Three Default to terminate this Lease and all the rights of the Tenant in or to the premises. Sincerely, Gateway Square Associates %~~~~~, ~~`~J Patricia M. -Smith Property Manager . BECKER ASSOCIATES CERTIFIED MAIL 7001 2510 0008 8934 2981/Regulaz Mail ,~ .. Exhibit "C" a ~' `... ,r .. SUITE 140 111 PRESIDE~1'rIAL BLVD. BALA CY\'WYD, PA 19004-1086 October 1, 2004 Mr. Lee Woodall 21 W. Mulberry Hill Road Carlisle, PA 17013 RE: Store E 101 C -Gateway Squaze Shopping Center, Mechanicsburg, PA Dear Mr. Woodall: Telephone: 610-668-98Z 0 FAX: 610-668-4077 By copy of this letter, you aze hereby advised Gateway Squaze Associates (Landlord) has exercised their option as outlined in Paragraph Twenty-Three of the Lease to terminate the Lease dated January 19, 2004 between Gateway Square Associates and Lee Woodall Enterprises, Inc.(Tenarit) effective.October 1, 2004. Landlord has taken possession of said premises terminating the rights of the Tenant in or to the premises. Sincerely, Gateway Square. Associates ~~ atricla M. Smith .Attorney in fact for Gateway Squaze Associates BECKER ASSOCIATES Certified Mai1 7001 2510 0008 8934 2851/Regulaz Mail ~.:~'.~+r.....~.:h~~. .,.........,..~.. ~. ,. _.........w'~.~.~..+:.:.~~~.e:.P.may?]:.'~.~~..:..,n..~......~~~~.v.-.e~..~-.~~,. tee.. ......~.. _... .. ...._. .. .. ... .. . j,~ ~ cn''_' i~- ~ -,-, `'; ~' r•(~ r ~ , ^0 O. ~-,: ..~ ~~~- `~2 ~h -- ~Q ~ ~' --; '-G. -~, t._ _~ tV u, ~~, ~t ~~ ~ ~, ~-~~ '~ John P. Rodgers, Esquire Attorney for Plaintiff, Gateway Square Associates Identification No. 79998 Law Offices: Wetzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 Phone: (570) 823-0101 Fax: (570)825-7799 GATEWAY SQUARE ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - -LAW VS. LEE WOODALL T/DB/A LEE WOODALL ENTERPRISES and WOODALL ENTERPRISES, INC. :JURY TRIAL DEMANDED Defendants No. 07-3 817 Civil Term NOTICE 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 Amended 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 a judgment may be entered against you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIItING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bradford St. Carlisle, PA 17013 (717) 249-3166 800-990-9108 Respectful) ESQUIRE W+etz~l, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 (570) 823-0101 r John P. Rodgers, Esquire Attorney for Plaintiff, Gateway Square Associates Identification No. 79998 Law Offices: Wetzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 Phone: (570) 823-0101 Fax: (570) 825-7799 GATEWAY SQUARE ASSOCIATES, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY CIVIL ACTION - -LAW VS. LEE WOODALL T/DB/A LEE WOODALL ENTERPRISES and WOODALL ENTERPRISES, INC. :JURY TRIAL DEMANDED Defendants No. 07-3 817 Civil Term AMENDED COMPLAINT AND NOW, comes the Plaintiff, GATEWAY SQUARE ASSOCIATES, by and through its Attorney, John P. Rodgers, Esquire, and files this, its Amended Complaint and avers as follows: 1. That, the Plaintiff, Gateway Square Associates, is a Pennsylvania Company with its principal place of business located at 111 Presidential Boulevard, Suite 140, Bala Cynwyd, Montgomery County, Pennsylvania 19004. 2. That, the Defendant, Lee Woodall trading and doing business as Lee Woodall Enterprises, has his principal place of business address at 257 Penrose Place, Carlisle, Cumberland County, Pennsylvania 17013. f ~ ~ ~ 3. That, the Defendant, Woodall Enterprises, Inc., has its principal place of business located at 11 Three Oak Lane, West Chester, Chester County, Pennsylvania 19382. 4. That, at all times relevant hereto, the Plaintiff, Gateway Square Associates, was the owner and operator of Gateway Square Shopping Center, located at 125 Gateway Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 5. That, on or about January 19, 2004, the Plaintiff and Defendants, Lee Woodall t/d/b/a Lee Woodall Enterprises and Woodall Enterprises, Inc., (hereafter "Defendants") entered into a Fifteen (15) year Lease Agreement whereby the Defendants agreed to pay monthly rental payments due on the first of each month beginning July 2004 in the amount of Ten Thousand Nine Hundred Twenty-Seven and 00/100 ($10,927.00) Dollars. A copy of said Lease Agreement is attached hereto, made a part hereof and labeled Exhibit "A". 5. That, simultaneously upon entering into the above referenced Lease Agreement, Defendants paid Plaintiff a security deposit in the amount of Ten Thousand Nine Hundred Twenty-Seven and 00/100 ($10,927.00) Dollars which has been applied to Defendants's outstanding balance. 6. That, pursuant to the Lease Agreement, the Defendants further agreed to pay certain costs and/or assume certain duties related to common area maintenance, real estate taxes, insurance, water charges and sewer charges totaling One Thousand Nine Hundred Three and 88/100 (1,903.88) Dollars per month, which included common area charges of Nine Hundred Sixty-Seven and 28/100 ($967.28) Dollars and real estate taxes of Nine Hundred Thirty-Six and 60/100 ($936.60) Dollars. 7. That, beginning on or about July 14, 2004, the Plaintiff provided the Defendants with default notices. A copy of said default notices are attached hereto, made a part hereof and labeled Exhibit "B". ~ ~ 8. That, as part of the above referenced Lease Agreement, in the event that the default continued for five (5) consecutive days after payment was due OR if Tenant did not cure the default within ten (10) days of receipt of the notice, the Plaintiff may recover from the Defendants as damages (a) any unpaid rents, plus interest on the amount owed at a rate of Eighteen percent per annum (18%); (b) any other amount necessary to compensate the Plaintiff for the detriment proximately caused by the Defendants which includes the costs as averred in paragraph five; (c) such expenses that include, but are not limited to attorney's fees and court costs. 9. That, pursuant to the Lease Agreement, the Defendants failed to pay rent in the amount of Forty Three Thousand Seven Hundred Eight and 00/100 ($43,708.00) Dollars for the months of July 2004 through October 2004 for which claim is herein made. 10. That, pursuant to the Lease Agreement, the Defendants failed to pay certain costs related to common area maintenance, real estate taxes, insurance, water charges and sewer charges, including costs for "Initial Common Area Charges" and for "Initial Real Estate Taxes" in the amount of Nine Thousand Five Hundred Nineteen and 40/100 ($9,519.40) Dollars for the months of July 2004 through October 2004 for which claim is herein made. 11. That, pursuant to the Lease Agreement, the Plaintiff is entitled to interest at a rate of 18% per annum on any unpaid rents already earned at the time of termination and Plaintiff is entitled to any interest which would have been earned after termination until the time of award which totals Nineteen Thousand Four Hundred Thirty Five and 51/100 ($19,435.51) Dollars for which claim is herein made. 12. That, pursuant to the Lease Agreement, the Plaintiff terminated the lease, effective October 1, 2004. A copy of notice of termination addressed to the Defendants is attached hereto, made a part hereof and labeled Exhibit "C". 13. That, despite the repeated demands of the Plaintiff, Defendants has failed to pay the sum of Forty Thousand Three Hundred Ninety-Six and 53/100 ($40,396.53) Dollars plus interest of Nineteen Thousand Two Hundred Seventy and 84/100 ($19,270.84) Dollars together with reasonable attorney's fees and costs pursuant to the Lease Agreement. WHEREFORE, the Plaintiff, Gateway Square Associates, requests this Honorable Court to enter judgment in its favor and against Defendants, Lee Woodall t/d/b/a Lee Woodall Enterprisesand Woodall Enterprises, Inc., in the amount of Fifty- Nine Thousand Eight Hundred Thirty and 80/100 ($59,830.80) Dollars together with costs, interest and reasonable attorney's fees. mitted, Wetzel, Caverly, Shea, Phillips & Rodgers 15 Public Square, Suite 210 Wilkes-Barre, PA 18701 (570) 823-0101 Attorney for Plaintiff, Gateway Square Associates VERIFICATION That, the language of the foregoing document is that of counsel and not necessarily my own; however, I have read the foregoing document and the factual information contained therein is true and correct to the best of my personal knowledge, except as to any averments specifically to be "on information and belief". To the extent that the factual averments of the foregoing documents are stated to be "on information and beliefH, the averments are true and correct to the best of my information and belief. To the extent that the content of the foregoing document is that of counsel, I have relied upon counsel in making this Verification and said content is true and correct to the best of my information and belief. That, I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904, relating to falsification to authorities. Dated: 7 / C7 Patricia M. Smith Property & Leasing Manager Becker Associates AND LEE WOODALL ENTERPRISES; INC. TENANT Date: December 5.2003 -, ,,,~<; ,. LEASE AGREEMENT . . THIS ASE ``pp . ~. ~ ~ of~~a~ 20 • is LE dated tb ~ Between GATEWAY_SOUARE ASSOCIATES ,:. . Having an address at SUITE.140111 PRESIDENTIAL BGYD., BALA C'Y:VWYD, F („Landlord") .:._. . ..: and LEE WOODt~LL ENTERPRiSES.I:YC, Having an address at 1941 MONTARAY DRIVE: MECHANTCSBURG. PA 17055 ("Tenant"): • Certain FundamentaiLease Pro~~isions are presented in this Section and reps • ~ agreerpent of the parties hereto, anbject to inrtber.detmitioa and elaboration in the ~ ~referenced~'Se"ctions'elsewhere iu this Lease. ' " .. `:.Shopping Center: Located in the Gateway Sauare Shaanine Center.lZ5 Gateway =~echanicsbure: PA: . Y Demised Premises: . Contaiaiag approximately.,~,8,732 square feet as shown as Sto~ ''"'~' Aind'outlincd in red~~on E>lhibit " A".attached.hereto..:. :":'..Permitted Use: FIealth~Club/Gvnn :: ; . .. • Under the style and trade name of "LEE WOODALL`ENTERPRISE5.WC. "and other purpose, (Sce.Paragraph Twenty).. Lease Start Date; ~ 12/31/03 or upon execntion`otLease byboth pa : Rent Commencemeat Date ` 7/1/04 . '-Lease Terminatiot- Date 4' 6/30/2019 -' Minimum Annual Rent Initially. .1; •131.124.00 (See Paragraph Two Po Monthly Rent Payments Initially ~ ~,10.9Z7.00 (See Paragraph, Two PE Initial Com~oa Area Charges. '. S 967:82 Initial Taz Share Initial Monthly Remittance Percentage Rent Factor . Term S 936:60 S 12.831.42 . N/A 1.5 Years (See Paragraph Nin (See Paragraph Twenty -S (See paragraph Nineteen) (See Paragraph Ong Security Deposit ~ .510,927.00- ee Paragraph Tw- References appearing in the.F~ndamental L. ass rov ar to designate the other places in this Lease where.additional provisions applic ble to.the particul Fundamental Lease Provisions appear. Each reference in this Lease to any of thr Fundamental Lease )'rovisions on Pages 1, 2:and 3.shall be construed to incorporat terms provided for_ under such `provisions:and sach provisiogs aball be read is eonj with all other provisions ~of this Lease applicable thereto..If there is any conflict br of the Fundamental Lease Provisions set forth on Pages 1, 2 and 3 and any other pr this Lease, the latter shall control. The listing on Page 1 of monetary charges payal Tenant shall not be construed to be an exhaustive list of all monetat~~ amounts pay: Tenant under this Lease:.. 2 dt~e ~~ ci~ay5 ~ i ~~ ~ - ~~ . LEASE AGREEMENT THIS LEASE dated this of December, 2003 Between GATEWAY SQUARE ASSOCIATES Having an address at SUITE 140111 PRESIDENTIAL BLVD., BALA CYNWYD, PA 19004 ("Landlord") and LEE WOODALL ENTERPRISES, INC. Having an address at 1941 MONTARAY DRIVE. MECHANICSBURG, PA 17055 ("Tenant"). Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto, subject to further definition and elaboration in the respective referenced Sections elsewhere in this Lease: Shopping Center: Located in the Gateway Square Shoaain¢ Center.125 Gateway Drive. Mechanicsbure. PA Demised Premises: Containing approximately 18.732 square feet as shown as Store ElOiC And outlined in red on Exhibit "A" attached hereto. Permitted Use: health Club/Gym Under the style and trade name of "LEE WOODALL ENTERPRISES. INC. "and for no other purpose. (See Paragraph Twenty). Lease Start Date: 12/31/03 or upon execution of Lease by both uarties Rent Commencement Date 7/1/04 Lease Termination Date 6/30/2019 Minimum Annual Rent Initially $ 131.124.00 (See Paragraph Two Page 3 & 4) Monthly Rent Payments lnitisily $ 10.927.00 Initial Common Area Charges Initial Tag Share Initial Monthly Remittance Percentage Rent Factor Term Security Deposit ~ 967.82 $ 936.60 $ 12,831.42 (See Paragraph Two Page 3 & 4) . (See Paragraph Nine) (See Paragraph Twenty -5iz) N/A (See paragraph Nineteen) 15 Years (See Paragraph One) $10,927.00 (See Paragraph Twenty-Five) References appearing in the Fundamental Lease Provisions are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions on Pages 1, 2 and 3 shall be construed to incorporate all of the terms provided for under such provisions and such provisions shall be read in conjunction with all other provisions of this Lease applicable thereto. If there h any conflict between any of the Fundamental Lease Provisions set forth on Pages 1, Z and 3 and any other provisions of this Lease, the latter shall control. The listing on Page 1 of monetary cliarges.gayab.Ie by Tenant shall not be construed to be an exhaustive list of all monetary amounts payable by Teaant under this Lease. Rent For The Demised Premises Is As Follows: Base rent will be increas~d,by 5°lo every three (3) years. 7/1/04 - 6/30/07 - S131,124:00 annually; 510,927.00 monthly 7/1/07 - 6/30/10 - 5137,680.80 annually; 511,473.35 monthly 7/1/10 - 6.30113 - 5144,564.21 annually; 512,047.01 monthly 7!1/13 - 6/30/16 - 5151,792,42 annua{!y; 512,649.36 monthly 7/1/16 - 6/30/19 - S159,382.04 annually; 513,281.83 monthly It is also understood and agreed that Tenant accepts the premises Tin KAs Is" condition. Tenant will receive 6 months free rent with rent commencement to begin Jaly 1, 2004. Tenant agrees to pay Common Area Maintenance and Real Estate charges for the months of May, 2004 and June, 2004. , Tenant agrees to do the build out of the premises in accordance with all state- and township regulations. .. ~ ' Tenant will also be respoasi6le for architectural drawings (if required) and alt necessary permits. Tenant understands that the usage for said premises !s for a health club/gym facility. Landlord will not pecmlt any nutritional,or,weight lass programs that violate any ezlsting tenant use... 'T'enant will have.first right of refusal to lease,the space presently occupied by the Centre! Peansyivani$.Schooi.of Gymnastics upon non.-renevKaCor default. 3 Laud{ore and Teuaut havheg the Io{Iowing notice addresses ou the date of this Lease: LANDLURD GATEWAY SQUARE ASSOCIATES SUITC 1,40111 ~'RESIDEN'~'IAL BLVD. BALA CYNWYD, PA 19004 Copy toc Phone Nuruber 610-668-9820 TENANT LEE WOODALL ENTERPRISES, INC. 1941 MONTA1tAY DRIVE AZECIiANICSBURG, PA 17055 Copy to: Phone Nuruber: 717- $ J Z~$ This Lease Agreement consists of 43 paragraphs, a plea of the Shopping Center marked exhibit "A", Sign Criteria marked Ezi<itttt "C"; set of Tenant Sign Standards marked Exhibit "G A", all of which are incorporated herein and by reference made a part hereof as if set forth at length; all of which are attached.hereto: IN WITNESS WHEREOF, this Lease has been duly executed by the parties Lereto, intending to be lega{fy bound thereby, under seal as of fire date and year tirst.written above. /„1 ~ ~~.~~~~ ~Prl~ 4 The Landlord does hereby lease and demise to the Tenant, and the Tenant does hereby accept the tease from the Landlord, upon the terms, covenants, conditions, and Umitations hereinafter set forth, the Demised Premises'as set forth on`Page One of this Lease Agreement. For the use and occupancy of said Demised Premises daring the term of the Lease, Tenant shall pay to Landlord a guaranteed minimam rental in the amounts specified on Pages One and Two hereof; a proportionate share of the expenses of operating the common areas of and a proportionate share of the real estate takes from time to time Imposed against the Shopping Center, and such other charges as maybe required to be paid by the Tenant hereunder, all as hereinafter more particularly set forth::>Tlie parties hereto; Intending to be legally bound hereby, fufther covenant with each: other'as follows: . O1V~ COMMBNCEMEIVT'DATB..:Tke term shall commence on the ezpiratton of 30 days after notice: to,Tenaut that the Demised Premises are ready for occupancy by Tenant, or the date when Tenanf'cdmmence~ business ogeratlon, whichever is sooner (hereinafter called "Commencement Date"), and the term shall expire on the last day of the calendar month in whlcli there `shall have elapsed'the time set forth oa Page Qne hereof as the Term. If the Commencement Date is not on the [first dap of a calendar month, rent for the period between CommencementDate and the first day of the following-month shall be apportioned at the annual mite herelnabove provided (based on a 360 day annual basis) and shall be due and ~,. payable on~ the Commencement Date. As soon as Commencement date has been determined, " , -memoranda la the form appended hereto and marked Exhibit "C", shall be signed by ,.Landlord and Tenant confirming the matters herein set forth . Tif~O. PAYMENT OFLBASE. All guaranteed minimum tents,'and except.as tfisy be hereto otherwise provided, alt percentage rents, additional rents and any other lease charges ' due hereunder shall be payable in egasl monthly Installments; in'advance without set-off or deduction of any k#nd, npon the first day of each calendar month of the term at the office of .the Landlord, or at such other place as the Landlord may from time to time designate, all without relief froarwaluation and~appraisement laws. The"parties covenant and agree that any payment of rent or additional rent made hereunder may, at the option of We Landlord, be accepted and applied In payment on account of the rent or additional rent lbagest overdue under thi's Lease, notwithstanding any statement to the contrary endorsed on or . accompanying each payment. Should any payment or installment of such rent or additional rent not be made on the date.when It stiall 4ave become due and payable, Landlord shall be entitled to collect s late charge thereon equal to one and one=half percent (1.5%.) per month, . or the higlsest legal rate"permitted by law, or a fraction thereof of the'amount or amounts ~ . overdue, the same to be deemed additional rent hereunder.. • .. " Except'~s herein otlierwise specifically provided, it is the intent of the parties that the rent, additional rents and other expenses which may become due and,payable by Tenant hereunder shall be absolutely net of any and all. charges, assessments, impositions, costs, expenses or deductions of every kind or mature appIIcabie to the~Demised Premises, or the use sod occupancy thereof, the Tenant to be solely responsible therefore and the Landlord to have absolutely no Uability or respoastbtlity whatever in connection therewith... THREE. REPAIRS, ORDINANCES, AND'VIOLATIONS. The Tenant covenants that no waste or damage shall be committed within; upon or to the Demised Premises; that the same shall be used for only the purpose hereinabove stated, shall not be used for say unlaw[ul purpose an¢ that no violations of law or ordinance or duly constituted authority shall be . committed thereon. TLroughout the term hereof Tenant shall take good care of tl~e Demised Premises, including without (Imitations, the electrical and plumbing systems from their points . of entry therein; the heating, ventilating and air condltionIng system and the~electrical system servicing. Demised Premises and any and all doors, molding, trim, window frames, door frames, closure devises, door hardfvare, door hinges and/or windows as well as fixtures and . appurtenances and all alterations, additions and improvements to same; and Tenant shall make all repairs and replacements to and about the same; in part and In their entirety, as may be necessary to preserve them in good order and condition. Ail repairs and replacements shalt be equal in quality to the original work and Tenant shall promptly pay the ezpenee of such repairs and replacements, suffer ao waste or injury to Demised Premises, give prompt notice to the Landlord of any damage that may occur, execute and comply with all laws, rules, orders, ordinances land regulations aE any time issued or in force, applicable to the Demised Premises or to the Tenant's use and occupancy thereof, of the Landlord and/or the Municipal, ~:'•.. 1'.:.' City, County, State,~Federal Governments and of each and every. `department, bureau and official thereof; sad of the Board of Fire Underwriters Laving j urisdIction thereof. Landlord will keep~ia repair the stractural elements, exterior, roof and common areas of the Shopping Cepter; prov[ded the Tenant shall give Landlord written notice of the necessity for any such repairs thereto, and provided further that the damage to the same shall not Lave been caused by the negligence or careless act of Tenant, in which event Tenant shall be responsible therefore. Landlord's obligation with respect to repairs to the Demised Premises shall be only as expressly set fortL in this Paragrsp6 Three, and all costs incurred in connection therewitL shall be included as partof the expenses incurred by Landlord under and pursuant to the provisions of Paragraph Nine hereof: At the expiration o[ the term Tenant shall peacefully surrender the Demised Premises to the Landlord in good order and repair, and broom clean. FOfIR. INCREASED FIRE INSiIRANCE RATES. Tenant shall not do, suffer to be done, or keep~'or suffer to be kept anything In, apon or about the Demised.Premises or take any action wh[ch would void, taake voidable, affect the enforceability of or increase the premium for any of Landlord~a insurance policies insuring.against.loss~or damage by fire or other hazards, including but not limited to.publlc liability, or which wlll prevent Landlord from procuring such po4cies in companies acceptable to Landlord: ItTenant allows the Demised Premises to remain vacant or anything be done, omitted to be done or suffered to be done by Tenant, or kept or suffered by Tenant to be kept in, upon. or about the'Demised .'Premises that shall cause the rate of fire or other Insurance maintained th'e~eoa by the '~ Landlord in companies acceptable to Landlord to be "increased beyond the minimum rate from time to time applicable to We Demised Premises when fully occupled~byTenant or to its use for the purpose permitted under: this lease or to ~We use of such other property of Tenant . as maybe kept or maintained therein, TenaabwiU pay as an additional rent hereunder the amount of such tn'crease promptly upon Landlord's demaad..'Should any use ofwacating We ~ Demised Premises by Tenant operate is any. [Wanner. to void oC make voidable say such IasUraace policy or otherwise affect its enforceability by Landlord then Landlord shall have the right (in addition to all other remedies available to Landlord) to terminate this Lease upon Warty (30) days written notice to Tenant. . ' . FIVE'. ASSIGNMENT OR SUBLETTING. Tenant expressly covenants that it will not assign, mortgage or encumber this Lease nor tinder-let or sublet or suffer or.permit the Demised Premises or say part. Wereaf, v~+hether by license, concession, or otherwise; to be used by others without We prior written consent ofLaadlord in each instance. In We.eveut the . ~ Tenant hereunder shall be.a corporation any transfer, sale, pledge, or other disposition of the . . corporate stock or voting securities of the Tenant shall be~deemed an assignment o[ this Lease and therefore prohibited without the express written consent of Landlord. 'At all times during . the term pf this Lease and any renewal thereof, it is hereby agreed that all persons signing on behalf of the Tenant corporatioa.shaU be officers and directors of said Tenant corporation. and they will collectively own at least 75% or more of all stocks; equities, and securlties~ of said Tenant. If this Lease be assigned or if the Demised Premises or any part thereof be sublet under-let or occupied by anyone other than Tenant without the express writtea:consent of Landlord first Lad and obtained, Landlord may collect rent from the assignee, underteaant, user or occupant and apply tl~e net amount collected to all rent 6erela reserved, but ao such assignment, underletting, occupancy or collection ahaU be deemed a waiver of this covenantor .the acceptance of the assignee, undertenant, aser or occupant as Tenant, or a waiver or release of the performance by Tenant's part to be herein observed and performed. In the event the Landlord's written.coasent to any assignment or subletting Is granted hereunder, the Tenant shall, nevertheless, remain liable to per[orm sl! covenants and ~ . conditions by the tenant to be observed and/or performed hereunder,'arid to guarantee such performance by the assignee or sub-tenant, and such consent shaft in no event be deemEd~ . continuing for the purpose of any subsequent assignments and/or subletting, each of wl-ich shall require the separate written consent of Landlord first had aqd obtained for which Landlord may, &t Its option, require We payment of an administrative fee of 5250.00 in each instance. 6 Slaf~ BANKRUPTCYORINSOLVENCY. A. Lease Reiection in Bankruptcy. In the event We Tenant shall become~a Debtor:under Chapter 7 of the Bankruptcy . Code, and the Trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or otherwise, such election and assignment may be made only if all terms aatf` conditions of Paragraph Six 4ereof are satisfied: ~.If such Trustee shall fall to elect.to assume this Lease within slzty (60) days after the~filing of the Petition; the Lease shall be deemed to have been rejected, unless for cease shown; the Bankruptcy Court shall, prior to expiration of said sixty (ti0) days, have eztended We tithe for assumption of this Lease. Landlord shall be thereupon lmmediately:eutitled to' possession of the Demised Premises without further obligation to Tenant or`the Trustee, and ibis Lease shalt be cancelled, but Landlord's right to ' ' be compensated for~damages.in such liquidation proceeding shall survive. $. Condi'tions' for Assumation of Lease. ~:::.1.~In the event that a Petition for reorganization or adjustment of debts h tiled concerning'Tenaatnnder Chapter 11 or.13 of the Bankruptcy Code; or a proceeding is tiled under Ctiapter 7 of the Bankruptcy Code and is converted to Chapter 11 or 13, the Trustee or " Tenant, as Debtor and Debtor-In-Possession, must elect to assume this Lease wlWln siriy (60) . days froth We date of fling of the Petition under Chapter 11 or 13, or the Trustee or Debtor . sad Debtor=Ia-Process:hall be deemed to Gave rejected this LeaseY unless for cause shown, the Bankruptcy Court shall have prior to'the ezpIratioa of said sixty (60) days have extended the time for assumption of this Lease. No election by the Trustee or Debtor and Debtor-In- . Possession to~ assume this Lease, whether under Chapter 7, il, or 13 shall.be effective unless each of the following conditions, which Landlord and Tenant acknowledge are commercially reasonable !n 'the content of a bankruptcy proceeding of Tenant, have been satisfied, and I:andlord has so acknowledged in writing: ~, ~(a) The Trustee or the Debtor and Debtor-In-Possession has cured, or has provided Landlord adequate assurance (as defined below) that: . (i) Within ten (10) days. from the date of such assumption, the Trustee will cure aU monetary'defaulta under this Lease; and (ii) Within thirty (30) days from the date of such assumption, the . Trustee wIU cure all non-monetary defaults under tills Lease. (b) The Trustee of the Debtor and Debtor-In-Possession has compensated, or has provided to Landlord adequate assurance (as defined below) tL'at within (10) days Irom the date of assumption Landlord will be eompensgted for any pecuniary loss incurred by - Landlord arising from the default of Tenant; the Trustee, or the Debtor . ~ and Debtor-In-Possession as recited W Landlord's written statement of . pecuniary loss sent to the Trustee or Debtor and Debtor-In-Possession. (c) The Trustee of the Debtor and Debtor-In-Possession bas provided . Landlord with adequate'assarance'of the future performance of each of Tenant's, the Trustee or Debtor and Debtor+In-Possession's obligations under this Lease, provided however, that: ~ ,., (i) The Trusteeor~Debtor and Debtor-In-Possession shall also deposit with the Landlord, as security for the timely payment, as amount equal to two (2) months rent (as adjusted'for,charges pursuant to Six B(1)(c)(Iti)(betow) and other monetary charges accruing under this Lease is pdditlon to anypreviously deposited security under paragraph Twenty-five hereof; and..• -' ::: -c ~.'-.- _:.. . (ii) If not otherwise required by the terms~of this Lease,the Trustee or Debtor and Debtor-In-Possession shalt also pay in advance on . the date minimum rent is payable 1l12ei of Tenant's annual obligations under this Lease for added charges. , . . (iii) From and after fire date o[ assumption of this Lease, the _ Trustee or Debtor and Debtor In-Possession of the minimum rent otherwise payable hereunder, plus the average amount of the annual percentage paid by Tenant to Landlord within the five (~ year period prior to the date of Tenant's petition under the Bankruptcy Code, which .amount shalt be paid iu advance in equal monthly installments on the date minimum rent is payable. .• (iv) The obligations imposed upon theTrustee or.Debtor and Debtor-In-Possession s6a11 continue witEi respecE to Tenant or any assignee of this Lease after'comp[etion` ofbankruptcyproceedings. (d) The assumption of this-Lease will not: ~ . (i) Breach any provision in any other lease; mortgage, financing agreement or other agreement by which Landlord Is bound relating to . the Shopping Center; Or . . (i~ Disrupt the tenant balance, the tenaat mix or the Shopping Center or any other attempt by Landlord to provide a specific tenant balance (or tenaat mix) of cetail,storea in Shopping Center which would be most beneficial to.all. of the tenants In tae Shopping Center sad would enhance the Image, reputation, and profitability of the Shopping Center. 2. For the purpose of this Section Six B, Landlord and Tenant acknowledge that, in the context of a bankruptcy proceeding of Tenant, at a minlmnm "ndequate assurance" shall mean that the Trustee or Debtor and.Debtor-In-Possession has and will continue.to Lave suifieieat unencum4ered assets after the payment'of alt secured obligations and admlaistratlve eicpeuses to assure Landlord that fife Trustee or Debtor and Debtor-In- , Possession wild Gave:ufllcient funds to fulfill the obligations of.Tenant under this Lease, and to keep tbe,Demised Premises stocked with merchandise and properly staffed with sufficient . ~ • ;employees to conduct a fully operational, actively promoted business on the Demised `Premises. ~ . C. Landlord's Riaht to Terminate. In the event that this Lease is assumed by aTrustee appointed for T"enaat or by Tenant as Debtor sad Debtor-In-Possession ender the provisions of Section Siz B lleXeof and thereafter ' Teaaat Is liquidated or files a subsequent Petition or reorganization or adjustatents of debts under Chapter 11 or 13 of the Bankruptcy Code, then, and in efWer such events, Landlord may, at•its option, terminate Wis Lease and all rights of Tenant hereunder, by gluing Tenant written notice of its election to so terminate, within thirty (30)-days afterahe occurrence of such events. • ~ For the purpose of tliis Section Siz C; Landlord and Tenant acknowledge that, In the context of bankruptcy proceedings of Tenant, at a minhnunr "adequate assurance of future performance!' steal[ mesa that each of tke foAowing conditions have been aatistted, and' Landlord has so acknowledged In writing:... ~ . 2. The assignee has snbmltted a current certified financial statement prepared . . by a Certified Public Accountant which shows a het worth and working.capltat In the amounts determined to be suffident by Landlord to assure the future performance by suc!< assignee of Tenant's obligations under this Lease; :..:, , . - , . ~ 2. The assignee bas submitted in writing evidence, satisfactory to Landlord, of • substantial retailing experleace~in shopping centers of comparable alas to the Shopping . Center and la ttie sale.of merchandise and services permitted under.this Lease; and 3.. The Landlord has obtalaed all consents or.walvers:from`any third party • required under aay.lease, mortgage, financ{al arrangement or other agreement by which Landlord is bound to permit Landlord to consent to such assignment. D. Use and Occupaacv in Bankruatev. WI-en, pursuant to the Bankruptcy Code, the Trustee or Debtor and Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of Demised Premises or any portion•thereof,snch charges shall not be.less than the minimum rent as ' ' defined in this Lease and other monetary obllgatIons of Tenant for added charges. ' E: State Law. ~ `' .Neither Tenant's interest is this Lease, nor any lesser interest of Tenant herein, nor any Estate of Tenant hereby.created, shall pass to any trustee, receiver, assignee for the benefit o[ creditors, or any other person or entity, or by operation of law~or otl-erwise under the laws of any state having jurisdiction or the person or property of Tenant (hereinafter referred to the "state law") unless the Landlord shall consent to such transfer Iri writing. No acceptance by Landlord or rent or any other payments from any such trustee, receiver, assignee, person or other entity shall be deemed to be waived, nor shall It waive the need to obtain Landlord's right to terminate this Lease for any transfer of Tenant's Interest under this Lease without • such consent. expended or incurred by Landlord in connection with the Shopping Area and/or the Common Areas or ail general maintenance-and repairs;(including those made in performance of Landlord's obligation under and pursuant to Paragraph Three.hereof), resurfacing, painting, striping, cleaning, sweeping; and providing janitorial services; rnanagetuent aervices ' .,maintenance and repair of sidewalk, curbs, Shopping Center signs; sprinkler systems, pleating and landscaping; providing lighting and other utilities; directional signs and other markers and bumpers; the operations, maintenance and repair of any fire protection (including sprinkler) systems; storm drainage systems and other utility systems; the cost of all personnel to implement such services including, if Landlord deems necessary, the cost of providing security guard service; any and all personal property tazes and assessments on the improvements and land comprising said Common Areas, as well as any governmental imposition or surcharge imposed upon Landlord or assessed against the Common Areas or any portion thereof; the fees; costs, or expenses, if any, required for the maintenance and preservation of any rights arising under any 1tEA; the costs of expenses; ii any, of providing and maintaining~ any security alarm system for the benefit of the Tenants of tie Shopping • Center; depreciationof any machinery and equipment used in the. maintenance and the operation of the Common Areas (if owned)' and/or the rental paid for such machinery and ~equipment~ (if rented); premiums. for Insurance coverage for the Sbopplag Center (including the building of which the Demtsed Premises is a part) under such policies with such companies and In such limits as Landlord may, in its judgment determine select (including but not . limited to fire Insurance with extended coverage, liability Insurance covering personal injury, death, and property damage with a personal injury endorsement covering false arrest, detention or'imprisonment, malicious prosecution, libel and slander, and wrongful entry or eviction, workmen's compensation. insarance, plate glass insurance, rent ln~urance, contractual IiabWty insurance, apd fidelity. bonds)•,'the cost o[ removing scow; ice, rubbish and debris from the Shopping Center, as well as the cost of lnspectiug the same and regulattng. ' traffic thereon; the cost of heating, ventilating and air conditioning enclosed. Common Areas; the cost of providing and replacing uniforms for, as well as for the gross compensation of all personae! required to sapervise and accomplish the foregoing; and We rental paid for any music service programs and/or loudspeaker systems provided for We Slioppiag Center .generally, including th'e.cost of farnlshing the elecfrlclty therefor, plus an amount equal to 'fitteep. (15%) percent of the total of all such expenses, whether herein:pacifically mentioned • or otherwise contemplated by the Intent hereof, to reimbarse.Landlord for b administrative and overhead costs in providing the accoanting, bookkeeping and collection functions required In connection therewith. • In consideration of Landlord's. agreement to operate and maintain We Common Areas, Tenant covenants and agrees to pay a proportionate share of the expenses advanced and/or . . incurred. by Landlord therefor in each Lease year;or Partial Lease Year..(as those terms are • defined in Paragraph 19 hereof) during the term of th[s Lease,'as herein before provided: While the Tenant's proportionate share of such expenses shall not exceed a sum equal to the product obtained by multiplying (i) the total of ai expenses advanced or incurred in each Lease Year by (ti) a fraction We numerator of which shall be the number otsqusre feet of (toor area in the~Demised Premises and denominator of which shall be the: number of square feet of leasable floor area in.the Shopping Center, the Landlord shall annually estimate the total cost of such expenses for the Shopping Center on the basis of its ezpertence and reasonably anticipated expenses therefor, and the Tenant shall pay to the Landlord, on the first day of each calendar month, together with its monthly installment of mlpimum rent due hereunder, an amount equal to 1/12 of its proportionate share thereof. As soon as practicable following the close of eacjt Lease Year, the Landlord shall submit to Tenant.a atatemeat indicting the actual amount of the ezpenses advanced and/or incurred by Landlord in performing its obligations hereunder for the immediately~preceding Lease Year, the actual . amount of Tenant's proportional share thereon the amount of the Landlord's~esttmate thereof for such Immediately preceding Lease Year, and the amount of the resulting balance due thereon, or overpayment thereof, as the case may be. Appropriate adjustment shall _ . thereupon be made between.the parties, on demand; on the basis of such statement. Eaeli statement shall be binding upon Tenant, its successors and assigns, as to the matters set forth therein, if no objection is raised with respect thereto ninety (90)~days after subniissian of each statement to Tenant. Tenant stall have toe right to examine Landlord's books and records at the offices of Landlord during ordinary business hours not more than.once to each Lease Year for the purpose of verifying the matters set forth in the statement for the immediately preceding Lease Year. For apd during the first Lease Year (or Partial Lease Year) as the case may be,.the Tenant's estimated proportionate share of the expenses~for operating and 10 maintaining the Common Areas of the Shopping Center shall be pagable monthly in the amounts as set forth as !'Initial .Common Area: Charge" oa Page: One hereof; the same to be deemed additional~rent hereunderand subject to the annual adjustment heretofore provided. Tenant covenants and agrees that if.the Lease is terminated by reason ofdefaalt on its part, or If it fails to take possession of We Demised Premises or vacates the Detriised Premises prior to tile: expiration of the term hereof, it shall remain liable to pay its proportionate share,nf such expenses. Tenant agrees that this is not to 6e construed as a penalty, but rather as a portion of the proper measure of Landlord's damages In the event of the_breach of this Lease by Tenant as aforesaid. TEN. STORE APPEARANCE OUTSIDE. Tenant shall maintain its show windows, if any, in a neat and clean condition;-shalt keep the sidewalks and Common Areas adjacent to the Demised Premises clean and.free from rubbish, shalt store all trash and garbage within . the Demised Premises or virithin•~adjacent closed containers not vlstble to the general public, and shall arrange,for'thercgular pick up of trash and garbage. Tenant shall not burn trash of any kind Ia or~about the Demised Premises,~nor shall Tenant permit rubbish, refuse or garbage to accumulate or fire hazard to ezist about the same. ELEVEN SIGNS. The Tenant shall not display any sign; picture,,advertisement, awning; merchandise, or notice on the outside of the building of which the Demised Premises is apart, nor:on the Interior or exterior of any plate glass of the Demised Premises, without the prior,vrritten consent of Landlord ftrsChad and obtained in~ each`instance:. , , It shall be the obligation of theTenant to install; display ati'd;thereafter'maintaIa on the front facade of the Demised Premises, a persnaneut outdoor; illuminatedaign, Identlfyingits business opemtlon In accordance vrith and subject to a plan or sketch` there of to be prepared- by Tenant and sabmftted to Landlord for Jts prior: approval which approval sIrAU not be unreasonably withheld. To estabUsh,gutdeliues for the signs, type, color: and design of such sign, Landlord has pregared Tenant Sign Standards, the same being:attached hereto, made a part. hereof and marked Ezhibit "C", it being to intended that Tenant's plan or sketch of said sign shall be is pursuance o[ specifications and requirements therein set forth. In addition to the foregoing, Tenant shall have :the further obligation to install, display and .thereafter maintain :uch under-canopy tign identifying its business operation, as Landlord may require In' the event there is included In the overall desigp of the Shopping Center such a canopy. structure. in that event, the size; style; color and design of the Tenant's under-canopy-sign shall be subject to and la accordance with the standards, specifications, and requirements relating to sdch signs as promulgated by the Landlord. All work required or the installation and maiateaance of the aforementioned signs, or . either of them, shat! be performed by Tenant iu a good and workmanlike manner, in accordance with the rules;,regalatioas; codes and ordinances of the authorities having jurisdiction thereof, gt the sole cost and expense of the Tenant with ao expenditure whatever required of Landlord in connection therewith. . TWELVE. OUTSIDB DISPL,4YS: The Tenant shall not display any merchandise, place vending nsachiaes or show case or.other obstructions or any other object on the outside of the Demised Premises or the building of which the Demised Premises is a part, upon the Common Area adjacent to the Demised Premises. ~ ~ . THIRTEEN.. INTERIOR ALTERATIONS. Tenant may, at its ezpebse, make such alterations and Improvements to the interior;pon-structural portions~of the Demised Premises . and install interior partitions as it may require; provided.that the wrltteb approval of the ' ~ Landlord be first obtained and that such Improvements and alterations-are done in a ..workmanlike manner in keeping with all building codes and regulations and in no way harm the structure of the Demised Premises, provided, at the expiration of this Lease or any extension thereof, Tenant, if requested to do so by Landlord, at its expense, shall restore the within Demised Premises to Its origins! condition and repair any damage to the Demised Premises resulting from the installation or removal of such partitions, fixtures, or equipment as may have been installed by Tenant. ~ ' The Landlord reserves the right, before approving any such changes, additiogs, or alterations involving costs and expenditures'in excess of 55000:00 to require the Tenant to. furnish it a good and sufficient bond to assure that the Landlord is Indemnified and held ' harmless from the payment of any claims, by way of either damages or liens: All of such clsanges, additions, or alterations shall be made solely at the expense of the Tenant; and the 11 Tenant agrees to protect, indemnify and'save harmless the Landlord:on.account of any injury to any persons or property, by reason of.aay such changes, additIons`or alterations, and to • protect, Indemnify and save harmless Landlord from the payment of any claim of any kind or character on account of bills for labor or material furnished in connection therewith. FOURTEEN. FIRE. 'If the Demised Premises are damaged by fire or other insured casualty, not occurring through pny actor failure to.act on the part of Tenant, its agents, servants, employees, and such damage can.be repaired within 120 days of the date of such occurrences, this Lease shall remain in full force and effect, and the Landlord shall promptly repair such damage at its expense, and is the event, there shall be a proportionate abatement of rent for so much of the Demised Premises as may 6e untenantable during the period of repair or restoration.. If is the opinion of a registered Architect or Engineer appointed by the Landlord the Demised Premises are damaged by fire or other casualty to such an extent that the damage cannot be repaired or restored within 120 days from the date of such occurrence, or that such damage is due to any:act or failure fo act on the part of the Tenant, its agents, servants, or employees, this Lease shall terminate at the option of the Landlord upon written notice glven.within Wlrty (30) days after each occurrence.. If this option is not exercised by Landlord, than this Lease shall continue In full force and effect. If 25% or more of We buAding of which We Demised Premises is a part is' damaged by fire or other casualty to such an extent that the same cannot be restored within 120 days of the date of such occurrence, this Lease may be cancelled at the option of the Landlord upon thirty (30)'days written notice ~_ from the date of such occurrence, even Wough the Demised Premises Gave not become udtenantable, and there shall be a proportionate adjustment of rent to the date of~. • termination. In additioa, there shall be na obligation on the part of the Landlord.to repair or rebuild during We last three (3) years of,We:term of this Lease unless Teaant.within fifteen (IS) days after such occurrence, sha116ave ezercLsed any option to ex#end the term of this • Lease that may lie afforded to Tenant nnder.the terms hereof. Landlord's obligation to repair. or.rebuild pursuant to this Paragraph Fourteen shall be limited to a basic building and the replacement of any interior work which inay have'origlaally been installed thereto at Landlord's cost. Except as herein'provided, Were shall be no obligation on the part of . Landlord to repair or rebuild In case of fire or other casualty.: , ~ . FIFTEEN HOLDUI'ER. If the Tenant shall occupy Demised Premises wltlrout We written consent of the Landlord after We expiration of the term of this Lease,•and rent is accepted from said Tenant, such occupancy and payment shall be construed as an extegs(on of this Lease for the term of one month only from We date oisuch ezpiration, and occupation and payment thereafter shall operate to extend the term of this Lease for but one month at a • time unless other terms of such ezteasion are`reduced to and eipressed in writing and signed by the parties hereto. In such event If eiWer Landlord or Tenant desires to terminate said occupancy of the end of any.month after We termination of Wls" lLease, tbe~party so desiring to terminate life same shall give the other party'at least twenty (20) days written notice to that effect.. Failure on the part of Tenant. to give such'notice shell obligate it to pay rent for aq additional ealeuilar month, following the month in which the Tenant has vacated the.Demised Premises. If such occupancy continues without the consent of the Landlords the Tenant shalt pay to Landlord as Uquldated damages, double the amount of rent and all other charges at the highest rate specified in this Lease for the time Tenant retains possession of the Demised Premises or any part Wereof.after termination of the term by lapse of time or otherwise. SIXTEEN. INSPECTION. Landlord expressly reserves the following rights: (a) to enter the Demised Premises at.any time to ezamine or to make such repairs, additions or . alterations as it may deem.necessary for the safety, Improvement, or preservation thereof, or of the building otwhich tbe•Demised Premises is a part, but Landlord assumes no obligation to make any such repairs other than as expressly stated in this Lease; and (b) to enter the Demised Premises and display and tnalntain a notice or sign "FOR RENT" and/or "FOR , SALE" at any time within siz months before tLe expiration or on the sooner termination of this Lease; and {c) during or after the time Tenant abandons or vacates the Demised'Premises or otherwise defaults hereunder, to enter sad decorate, remodel, repair, alter or otherwise prepare the same for reoccupancy. The exercise of any reserved right 6y Landlord small never be deemed an.eviction or disturbance of Tenant's use and possession of the Demised Premises nor shall It render Landlord liable In any manner to Tenant or to any other person. 12 SEi~ENTEEN. LL9BILITY. Landlord ahaU'not be under-any responsibility or liability in any way whatsoever for the quality, quantity, impairment,. Interraptiou; stoppage or other. interference with service involving water, sewer, heat, air conditioning, gas, electric current ., for tight and power, telephone or any other: service. . Landlord shall not be liable for any damage to-proQertjr ot`Tenant or of others located on the Demised Premises, nor for the loss of or damage to any property of Tenant or o[ others by theft or otherwise. Landlord shall not. be liable for any injury or damage to any property resulting from (but not limited to) fire,• e=ploslon, talUng plaster, or ceiling tiles, steam, gas, electricity, water, rain, snow or, leaks from.any part of Demised Premises or from the pipes, appliances, or plumbing works or froui'the roof, street orsub-surface or from any other place 'or by dampness or. by any other cause of whatsoever nature. Landlord shall not be liable for any such damage caused byother tenants of the building of which the Demised Premises is a part or persons Id.We Demised Premises,~occupants of adjacent property; of We Shopping _ Center, or' We pubUc or_caused by`operations in construction of any private, public or quasi- public work.AJI property o[:Tenant kept.or stored on the Demised Premises shall be sa kept at the risk of~'enarit onlyand Tenant shall hold Landlord harmless from any claims arising out of damage to the same, including subrogation claims by Tenant's insurance carriers. . `.EIGHTEEN.: LIABILITYFOR DAMAGES AND PLATE GL;43S =TENANT. The Tenant agrees to be responsible for any damage to the property of the Landlord which may result from any use of the Demised Premises or any act done Wereon by the Tenant or.any ' ~ person coming or being thereon by the Ucense or permission of the Tenant,.express or ' implied; to save the Landlord harmless from any liablUty to any person'or Estate, for damage to person or. property;.resulting from any such causes, and to protect such liabWty with . comprehensive public Uability and property damage Insurance, having a dingle 1tutlt Iis6iUty • of at least S1,OOO,QOO,for damage to all property and for aU occurrence resulting In bodily and/or personal lajary to• or the death of one or more personi~ and conaegaential damages resulting there from, and to furnish Landlord on the Commencement Date a certificate Issued by the insurance carrier evidencigg such Insurance is force, with Landlord and its Agents covered thereby: Tenant agrees to replace.'aU giasa•broken; damaged, or destroyed in any ' manner whatever, the Tenant assuming all responslbWty for: any plate glass in the Demised - -Premises, and to cause such UabiUty to be protected by plate glass insurance atTeaant's expense, and further to deposit such plate glass Insurance policy or certificate showing each insurance ia~force with Landlord at the Commencement Date of the term of this Lease. In the event that Tenant does not procgre such insurance as aforesaid, Landlord may, . ' at Its option, purchase the same in the name of tie Tenant and/or :at Its option include such . . coverage in any master policy csirried by Landlord.'If Landlord ezerdses its rights hereunder -the Tenant shall, upop de[nand, pay all costs thereof to Landlord together with an .administrative charge of SI00.00 for.each such coverage'made by Landlord on behalf of Tenant. ~ ~ ~_ NETEEN. PERCENTAGE RENT. Tenant agrees to pay Landlord as addition to foregoing minimum real, a sum equal to the amount of whfch t6 ni m ' rent to be paid any Lease Year (as.hereinafter defined) is less than the P centage Rent Factor times or mul ed by the gross sales (as hereinafter defined) o e Demised Premises, ' for. said Lease Year, ands being hereinafter sometimes refere o as "percentage rent". On or before the tenth o') day after the ezpiration ach month Tenant shall submit to Landlord a statement sh ng la reasonable i, the amount•of gross sales of the .Demised Premises during the preceding nth.; U ercentage Rent Factor times or . multiplied by the gross sales made during t ~ ceding month shall be is excess of the minimum- rent payable with respect to aqi rece ~ • month than the amount of such excess sl-all be paid over to Landlord at the' a time as the dition of said monthly statement. If the Commencement Date shall b er than the first day o calendar month; then the first month's gross salsa stateme nd percentage rent due, pursue this paragraph, shall include the-portloa oft onW from the Commencement Date.to t rat day of the next succeeding calend onth. - . Each se Year during We terw hereof shall be considered as an inde dent accounti eriod for the purposes of computing and determining the amount of p eatage rent any, payable hereunder, and the'amount of gross sales in aayLease Year shall t be oarrried over into any other Lease Year. If the guaranteed minimum and percentage rent is • _ --` 13 ' aid by the Tenant with respect to any Lease Year shall exceed the Percentage Rent Fact r h es or multiplied by the Tenant's gross sales for.each Lease Year, the amount of such cess pe entage rents actually paid shall be credited against the next accruing installment o ins Invents of minimum and/or perceptage rent due hereunder. The term "gross sales" shall mean the entire amount of the actual sales pri n 5 .wholly partly for cash or on credit, of all sales of merchandise and services, and other receipts all business conducted In or from the Demised Premises, including cat og, electronic nd telephone sales, and including all deposits not refunded to porch era, orders taken in or om the Demised Premises.atthougti said order may be tilled else ere; and sales by any snbies concessionaire or licensee In or from the Demised Premises hall be treated as if the sales re made by Tenant with the proper notation as to the sour of such sales, and all without c edit to Tenant for uncollected or uncolteetible credit acc nts. There shall be ezctuded from toss sales". and sums collected and paid out for any les tan or tax based upon the sale or sal . of merchandise and required by law; whether no or hereafter in force, to be paid by Tenant ' r collected :from its customers, to the eztent the such taxes are to be charges and collected s stately and to be remitted by Tenant to the zing authorities~The term 'gross sales"'shall of ladude the ezchange of merd~audise b cen the stores of 'Tenant, of any; where suc ezchange of merchandise !s made sole fqr the convenient operation of the Tenwnt as not for.the purpose of consummatl a sale which is theretofore been made at, in, from or up the Demised Premises or for th purpose of depriving Landlord of. the benefit of a:a w61ch would otherwise be m eat; ia, irom or upon the . :Demised Premises; nor shall,aal term include We amount r urned to shippers or .manufacturers; nor the amount o ny cash or credit refun made upou_any:ale where `.' merchandise sold, or some part the of; is.ttiereafter retu ed by the purchaser to and accepted by the Tenant. Each sale u oa lnstalime6f or edit shalt be treated as a sale [or the full price la the monW'during which a ch sale shall be ads Irrespective of the timcwhen Tenant shall receive payment:(whether it or partla from Its customers. TenanYslaall and hereby agrees to eep the D raised Premises, during the term hereof, for a period of three (3) consecutive years: Ilowi thfe end of each Lease Year, a permanent, . complete and accurate record of all gross sa a revenue derived from baslaess conducted In the Demised Premises for such Lease Year. nant farther agrees to keep, retain and preserve for at least two (2) years after the ex lion of each Lease Year, aU original sates :records and sales slips or sales checks and o er rtinent original sales records: Accurate non-resettable cash register: or other mods syst shall be. installed and kept, or caused to be installed and kept, by the Tenant with the De ed Premises, which shalt show, record and preserve, to complete detail all It eking up oss sales, as hereinabove defined. All . . such records, including sales tax repo and business a d occupation tan records and all . other records and books kept by Ten tin relation to th usiaess conducted au We Demised Premises s4al[~be open to the inspec nand padit of Land rd and its representatives or agents at all reasonable times du ordinary business hou ..Tenant shall also submit to Landlord on or before the thlrtiet (30~ day following the en of each' Lease. Year at the . place then fined for the paymen f rent, a complete audited stn ement made and certi[ied by a Certified Public Accountant a also certified by a duly author otficer of Tenant, showing accurately Ia reasonable deta the amount of gross sales made by enant and its sublessees, ' concessionaires, or licensees f any, upon and within the Demised P mtses during the preceding Lease Year or P rtiat Lease Year,lf any; and shall submit n or before the thirtieth (30ta) day following the a iratton o[termination of the term•a'liks stn ment covering the preceding Lease Year o artial Lease Year, u any. ~ ~ . In tl~e event the the Tenant or parties affiliated with Tenant coed t one or more operations or stores a her with the Shopping Center or elsewhere, the Lan rd Is hereby given the right to in ode Ia its audit an inspection of sil books and records o ucb other stores or clsaiu-wI operation in order to satisfyitself as to the proper allocaft and . f nclusions of Bros sales to the Demised Premises. Fail ore o the Tenant to meet a scheduled audit date at the time fixed by th Landlord shall be deems a default under this Leasc and Landlord, is addition to all other re edies afforded to •i nder this Landlord, shall be promptly'reimbursed by Teoaat for al co to of such scHed ed audit together with an administrative fee of 5100.00. Fai re ~of Tenant to promptly supply Landlord with We monthly and/or annual reports r quired Hereunder shall be deemed a default under this Lease.and, In addition t ail other r edies afforded to it under this Lease, Landlord shall be entitled, without notice t • the Te ant, to conduct an audit of Tenant's books for such period or periods during which 14 Want Las failed tq supply Landlord with the reports at the cost and.ezpense of the Te nt Ten t together with an administrative fee of 5100.00 - ~ ,-,•, receipt by Landlord or any statemenYor.payment of pereenfage'r ' period or t6 allure of Landlord to make an:audit:for said'.petiod shall neither d Lan ord as to correctnes f the statement or the payment; nor bar Landltird from a ecting at any `Ume thereafter perc tage rent due for said period. If any audit by La ord or its agents of/~j~ Tenant's records shall r al A deQciency of any payment of perce ge rent Tenant shall ~~JJ forthwith pay to Landlord amount of deficiency together w an interest at a rate of twelve percent (12%) per annu roni the date when said meat should Gave been made, together with reasonable cost of suc udit. ~ ~ ~ ~ • It is agreed that nothing contain si the L e. shalt be deemed or construed as creating a partnership or jofat venture betty andlord and Tenant, or between Landlord and any older party; or cause Landlord t e r nsible In any way for the debts or obligations'of Tenant, or any other p For the purposes of this e, the "first Lease "shall mean a period beginning 3anuary 1'~ following the Co encement Date hereof and a nding twelve (12) calendar months'thereafter, endin ecember 31`x, and each cause uent a Year shall be the twelve consecutive calendar onth period thereafter (January 1~ to Dece r 31"). The~perlod from the Commence Date of this Lease to the Wert succeeding December ", and from the January 1's t.~receding, and extending to the termhtation date of this Le shall be 'consider as "Partial Lease Years", and any changes under this Lease.which a computed .. oa ease ,Year basis shall be appropriately pro-rated so as to be computed as sepa a and ttact accounting periods in accordance with We terms and conditions aforesaid. TWENTY.' BUSINESS OPERATION.: Tenant shall, during the'term of this Lease, continuously use the Demised Premises for"the purpose stated oa Page One of tbls.Lease,~ ' carrying on therein Tenant': business undertaking diligently, assiduously and, energetically under the trade~name stated on Page One.~Tenant shall maintain on the premises a substantial stock of goods, wares, and merchandise sad equipment; adequate to assure successful operation of Tenaat's business: Tenant shall keep the premises open and available for business activity therein during'all usaal days and hours as are set by the Landlord except ". when prevented by strikes, tires; casaalty or other causes beyond.Tenant's reasonable control. • Tenant shall not divert elsewhere any trade, commerce or business`which ordinarily would be transacted by Tenant in or from We Demised Premises. Teaant.shall not conduct any "fire sale', "distress sate' ;bankruptcy sale", "going out of business sale", or any other sale designed to convey to the public that the business operations are to be discontinued and Tenant shall not apply.for or cause to 6e applied from . . any muuidpal, state, local, or federal license'or permit applicable to such sales. , TfVENTY-0IYE. WAIVERS. The.failure of Landlord to insist, iu any one or more instances upon a strict performance or observance by Tenant of any of the covenants of this Lease, or to ezerdse any option Lereln contalned;'shall not be construed as a waiver or relinquishment for the future of such cotenant or option; but`thesame shall continue and remain In full force and effect. The receipt 6y the Landlord of rent, with knowledge of the . breach by Tenant of any covenant hereof, shall not be deemed a waiver ofsuch breach at~d no waiver by the Landlord of any provision hereof shall be deemed to havebeen made unless expressed in writing and signed by the Landlord. Even though the Landlord shall consent to • an assignment aacUor subletting hereof no [urther assignment ancUor.sublettingshsll be made . without express consent In writing by the.Laadlord first had and obtained in each instance. Tfl'ENTY-TW.O. SUBORDINATION. ;This Lease, at the option of Landlord, shall be . subject and subordinate at all.times, to the lien of the mortgages aowor hereafter made upon the security of the shopping Center or the Demised Premises, and to all advances made or hereafter to be made upon the security thereof, and subject and subordinate to the lien of any . mortgage or mortgages which at any time may 6e made a lien upon the same,~and subject and subordinate to any lease or other arrangement or right'to possession under which Landlord is in control of Demised Premises and/ or the Shopping Center and'to -the rights of the owner or owners thereof, and/or the rights, privileges, and burdens arising from any itEA affecting the Shopping Center.. The Tenant hereby appoints the Landlord the attorney-in-fact of the tenant, to execute and deliver any such instrument or instruments for the Tenant. I5: . The Tenant shall have no power to do any act or make any contract which may create • or be the foundation for. any lien, mortgage, or other encumbrance upon the estate of the _ : ~ Laadiord or of anyiateresbof toe: Landlord in tUe Demised Premises; or°upon or In the ' t-uitding'of which the Demised Premises is apart of otherwise within or upon the Shopping Center, it being agreed Wat should the Tenant cause any such Improvements, alterations or tepalrs to be made or material furnished or labor performed therein or thereon, neither toe Landlord nor the Demised Premises nor any other portion of the Shopping Center shall under any circumstances be Venable for the purpose of enforcing payment of any of the expenses incurred or for the value of any work done or material furnished thereto or any part thereof, the parties expressly intending that hereby all improvements, alterations, repairs, materials and labor shall be performed at the Tenant's sole cost and expense and the Tenant aha116e `'solely and who{ly responsible to contractors, laborers and material men furnishing labor and material ini connection therewith, all such laborers, material men and contractors befog hereby charged with notice that they must look solely and whoVy to We Tenant and the ' .Tenant's interest in the Devised Premises, to secure the payment of any bills for any such work performed and materials furnished.. TWENTY-THREE. ;DEFAULT: (a): (1) If Tenant sl-all default is the payment of any rent or other paymegts required of Tenant, or'any part thereof and If such default shall . continae for flue (5~ days after. the payment shall be due, or (2).if Tenant shall default In the . performance or observance of aay:othet• agreement or condition on Its part to be performed or observed and if Tenant:half fait to cure said default within ten (10) days after notice of said default from Landlord, or'(3) if any person shall levy upon, take, or attempt to take this leasehold interest or any part thereof ~ uposi execution, attachment or other process. oflaw, or (~ If Tenant or any affiliate of Tenant shall make default with respecf to. any other Lease or • .agreement between IC or Landlord or any affiliate of Landlord; or (5) if the premises shalt be deserted, vacated, abaudoned,.or business operations shall not be conducted therein for a period.of two (Z) or more days,'or (6~ If this Lease, or any other interest.therein shall by operation by law devolYe upon or pass to any person or persons other than Tenant, or (~ if Tenant shall fall to move Cato and take posaession~of the Demised Premises and open for business within thirty (30) days after Landlord's giving notice to Tenant that the Demised • "Premises are ready for occupancy by Tenant, then the~Landlord may treat the occarrence of . " any one or more of -the foregoing events as a breach o[ this Lease, and bt Addition to any or all other rights or remedies of the Landlord hereunder and by the law provided, It shall be, at the ". ~ option of the Landlord, without further notice or demand of any kind to Tenant or any other person: • (a) the right of the Landlord to declare the term~hereof ended and to reenter ' ~ toe premises,and take possession thereof and remove all persons therefrom, and the Tenant shall have no fnrther claim thereon oc hereunder; and/or (b) the right of the Landlord•.witbout declaring this Lease terminated to reenter . We premises and, occupy the whole•or-any partt6ereof, remove aq persona and property. therefrom either, by s~cmmary dispossess proceedings or by a suitable- action or proceeding at law or in equity, or by force, or otherwise, without being ' liable for any damages Werefor, no such reentry by the Landlord to 6e deemed or otherwise construed'as an acceptance of a surrender of this Lease; and/or " (c) the right of the Landlord, even though It may have reentered the premises, • to thereafter elect to terminate this Lease and all the rights of the Tenant In or to the premises. Should the Landlord have reentered the premises under the provisions ofsub- paragraph (b) above; the Landlord shall not.be deemed to have terminated this Lease, or released the Tenant from its liability to pay the rents and additional rents theu~owingand due and/or thereafter to accrue hereunder, Werea[ter.to accrue, or its liability for damages under any of the provisions 6ereot, by any such reentry or by an action in untavrful.detataer, or . • otherwise, to obtain possession of the Demised Premises, unless the Landlord shall Lave notified the Tenant in "writing that it has so elected to terminate this Lease, and the Tenant .further covenants that the service by Landlord of any notice pursuant to the unlawful detainer statutes of the State where the Shopptag Center is situated and the surrender of possession pursuant,to such notice shall not (unless the Landlord elects to the contrary at We time of or at any time subsequent to the serving of such notices and such election is evidenced by a written notice to the Tenant) be deemed to be a termination of this Lease. In the event of. 16 ' any entry or taking•possession of the premises as aforesaid, the Landlord shall have the right, but not the obligation, to remove therefrom all or anypart of the personal property located therein aud'may place the same in storage at a public warehouse at the expense and risk of the ..other or owners thereof • Should th'e Landlord elect to terminate this Lease under the provisions of sub- paragraph (a) or (c) above, the Landlord may recover from the Tenant as damages: (i) the worth at tha time of award of any unpaid rents and additional rents which had been earned at the time oisuch termioatioa; plus . (li) the worth aCthe time of award of the amount of the unpaid rents and additional rents which would have been earned after termtnatIoa until the time of awards plus; • (iii) the worth at the time of award of the amountof the unpaid rents and . ~ • additional rents for the balance of the term after the time of award, plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately ceased by Tenant's failure to perform Its obligations under this Lease or in which We ordinary course of things would be likely to result therefoom, including, but not limited to any costs or expenses by Landlord in maintaining or preserving the premises after such default, preparing the premises for"relating to a new tenant, any repairs or alterations to the premises • for such reletttng, leasing commissions, or any other costs necessary or . appropriate to relet the premises; and • (v) at Landlord's election, such other amounts to addition~to or inlieu of the foregoing as may be permitted from time to time by the laws'of the State where.. ' the Shopping Ceater.is s[tuated. • As ased In sub'-paragraphs (n pnd (il) above, the "worth at the time of award". Is-` " computed by ahowiag interest at the.rate.of eighteen percent (18%) per annum. As used is sub-paragraph (iii) above, the,"worth at the time of award" is' computing by discounting:uch amount at the lesser of ettlier the discount rate of the Federal Reserve Bank Situated nearest to the location of the Shopping Ceuterin effect of the time of the' award; or eight percent (8%). .For all purposes of this Paragraph 23 the'term "rent" shall be deemed to be the • .minimum annual rental, percentage rental and all other sums which by the terms hereof,are deemed additional rent or are otherwise required to be paid byTenant pursuant to~the terms of Wis Lease. "All such sums, other than ithe minimum annual rental,~shall be computed on the basis of the average monthly amount thereof accruing during the immediately preceding sizty (GO) month period, except that if it becomes.necessary to computesuch rental before~such a .sixty {60) month period has occurred then such rental shat) be computed on the basis of We average monthly amount hereof aceruIng during sacli shorter period..: In.the event of default, all of the Tenant's fixtures, furntture, equipment, ~• improvements, additions, alterations, and other personal property shall remain on the . Demised Premises and in that event, and continuing during the length of said default, Landlord shall have the right to take the exclusive possession of same and to use same, rent or charge free, until all defaults are cured; or at its option, at any time during the term of this Lease, to require Tenant to forthwith remove same, failing which the Landlord.may effect such removal at the sole cost and risk~o[Teaant. • Notwithstanding any other provisions of the Paragrapti 23,•tl~e Landlord agrees that if the default complained of, other than for the'payment of monies, is of such a nature that the same~cannot,be rectified or cured within the period requiring such rectification or curing as specified in the written notice relating Wereto, then such defaultshali be'deemed to be . rectified or cured if.the Tenant within such period shall have commenced the rectification • and curing thereof and shall continue thereafter with ail due diligence to cause "such • rectification and curing thereof and does so diligently complete the same.- The'remedies afforded the Landlord in this Paragraph 23 shall be in addition and • supplemental to all other rights or remedies which the Landlord may have under the laws then in force: The waiver by Landlord of any breach of any term, covenantor condition herein contained shall not be deemed to be a waiver of such term, covenant or condition should there occur any subsequent breach of the same or any other term, covenant or condition herein • contained. The subsequent acceptance of rent. hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay tue particular rental so accepted, regardless of 17 ~ -~ _` Landlord's knowledge of such preceding breach at the tame of acceptance of such rent. No covenant, term, or condition of this Lease'shall be deemed to have been waived by Landlord ,unless atlch waiver be in writing signed by Landlord. . Alt sums other than minimum rent due and payable to Tenant.hereuudec, such, as, by .,-way of example and not In limitation, percentage rents, common area maintenance expenses, utility charges, real estate taxes, cooperative advertising and promotional charges, attorney's fees, collection fees and court cots shalt be deemed to be and shall become additional rent hereunder whether or not the same be designated as such, and shall be included in the term "rent" wherever used in this Lease (notwithstanding that the words "additional rent" are used in specific cases, but not used in other cases); and shall, unless otherwise specifically provided hereto, be due and payable on demand or together with the next succeeding installment of minimum rent, whichever shall first occur, and Landlord shall have the same _ ' 'remedies for failure'to pay the'same as for anon-payment of minimum rent. . The parties hereto distinctly covenantand agree that any payment of rent or additional rent made hereunder may, at the option of the Landlord, be accepted and applied is payment on account of the rent or additional teat longest overdue under this Lease, notwithstanding any statement to the contrary endorsed on or accompanyipg each payment. TWENTY-FOUR. ATTORNEY'S FEES. Tenant agrees that in the event that any default.by it in performance of any of the terms, conditions or covenants of this Lease requires the Landlord, In the ezercise of its sole discretion, to engage the services o[any attorney, • . whether or not as employee`of the Landlord; to enforce compliance by`tbe Tenant with terms, conditions'and covenants hereof; the.Tenant rvlU reimburse Landlord for'any and'all expenses Incurred In its u;e totsuch attorney And in'any action which`said atforaey may pursue. Such ezpenses shall include;-. but are not limited to: legal fees, court costs; costs'of filing and. serving summons and/or complaints; etc:. The term !'default". as used In this paragraph'=halt mean, but shall not be construed as being IImlted Iu meaning to nonpayment of: minimam rent, percentage rent, utility bills, taxes, promotion and advertising charges, and common area expense contribution. Tenant further agrees that should It-comniif any default or.defaults under this Gesse, • Landlord shay, at its election, immediately or at any time thereafter, without waiving any claim'for breach of agreement, and without notice to Tenant, cure such default of defaults for the account of Tenant. If the Landlqcd shall institute an action or aamtnary proceeding against the Tenant based upon such detault,.or if We Landlord'shall cure such default or defaults for the account of Tenant, thed the Tenant'wUl reimburse the Landlord for. the ezpense of attorney's fees and disbursements thereby incurred by the Landlord, ao far as the same are reasonable in amount. The cost to-the Landlord thereof shall be due:nd payable on~ . demand, shall be deemed to be additional rent hereunder and shall be added.to the ' Installment of cent next accruing onto any subsequent lnstaUment of rent due and payable • hereunder, at the election of Landlord; "Landlord shall not be responsible to Tenant for any loss or damage resulting in any'uianner by reason of Its undertaking and pursuing anyo[ the • • eights and. remedies which by the terms hereof are reserved to and !or the benefit of ~ . . Landlord. TWENTY-FIVE. SECURITYDEPOSIT. Concurrently with the execution of this Lease, Tenant shall deposit with Landlord the sum set forth on Page One hereof as Security Deposit, the same to beheld by Landlord without IiabUity for interest, as security for the full and fa[thful performance by Tenant of the terms and conditions by it to be observed and performed hereunder. If any of the rents herein reserved, or any other sum payable by Tenant to Landlord become overdue and remain unpaid, or should Landlord make any payments on behalf of Tenant, or should Tenant fail to perform any of the terms and conditions of this Lease, then Landlord, at its option, and without prejudice to any other. remedy to which Landlord may have an account thereof, shall appropriate and apply said deposit, or so much thereof as may be required to compensate qr reimburse Landlord, as the case maybe, toward the payment.of rent or additional rent, or loss or damage sustaine~l,6y Landlord due to,the breach or failure to perform on the partof Tenant, and upon demand, Tenant shall. restore such security to the original sum deposltetl, - Conditioned upon the full compliance by Tenant o[ all of file terms of this Lease, and the prompt payment of all rents and other sums due hereunder as and when they fall due said deposit shall be returned in full to Tenant within thirty (30) days after the end of the term hereof. 18 . J In she event:of.a sale of the Shopping Center or lease o[ the land on which it stands, subject to this.Lease,the Landlord shall have the right to transfer the security to the vendee or.lessee'sind the Landlord shall be considered released by the Tenant from all liability for the return of such secuirity-and the Tenant shall look solely to the new Landlord for the return of -the said security, it being agreed that this shall apply to every transfer or assignment made of the security to a new Landlord. The security deposited under this Lease shall not be mortgaged,'assigned or encumbered by the Tenant .without the written consent of the ~ - `: Landlord and any attempt to do so shall be void. In the event of any rightful and permitted assignment of this Lease, the said security deposit shall be deemed to he held by the Landlord as a deposit made by the assignee and Landlord shall have no furtltier liability with the respect to the return o[sald security deposit to the assignor. TWENTY-SIafG RB'AL ESTATE TAXES. As used herein, the term "Taxes" shall mean and Include aU real estate taxes, assessments, license and permit fees charges for any easement, including an REA (as herein elsewhere defined), maintained !or the benefit of the .Demised Premises and other governmental levies and charges of every kind and nature whatsoever, general and special, extraordinary as weU•as ordinary, [oreseen and unforeseen, and each aqd every histallment thereof which shall or may during the, term of this Lease be levied, assessed, imposed, become due' and payable orlieps upon, or arise In connection with the use; occupancy or possession of, or grow due and payable out of, ot- for; the entire _~ Shopping Center of any part Wereof, or any rent or income received there from, or any land, buildings or other improvements therein,~inciuding interest on installment payments and all costs and fees (iaclndidg reasonable attorney: fees) incurred by Landlord in contesting Taxes, assessments and/or negotiating tvitti``pnbllc authorities vrith respect to the:atne:~ I[ at spy time during the term of this Lease file methods and/or bast's of tazation prevailing at We Commencement Date shall be altered so that la addition to, or in lieu of or as a substitute for . the whole or any'part of the Tazes now levied, assessed or imposed on real estate as such, , there shall be levied, assessed, or Imposed (i) a taz on the rents received from such real estate, or (ii) a license fee measured by the rents cecetvabie by Landlord.from the Shopping Center or any portion thereof, or (iii) a fait or license fee imposed upon Landlord-which is otherwise measured by or based in whole.or In part upon rents derived, from the whole Shopping Center. 'or any. portion thereof, then and In any of such events,.the same shaU•be included in the . • ~ computation hereunder of Taxes. Tenant shall pay in each Tax Year during the term of this Lease as additional rent, a proportionate share of all sucp fazes, at`t6e tiu-es and in the manner heretnafter~provided. While. the Tenant:proportionate share of such.Taxes shall not ezceed a,sum equal to the • ~ product obtained by multiplying (i) the total of all Taxes assessed or Imposed against the Shopping Center in each Taz Year by(il)`a fraction of the numerator of which shall be. the number of square feet. of floor area hs We Demised Premises and~tbe denominator of which shall be the number of square feet of leasablefloor. area.in the Shopping Area, the Landlord shall Annually estimate the total,amount of such Tazes for the Shopping enter on the basis of .its experience and reasonable anticipated charges there[or,-and tine Tenant shall~pay to the Landlord, on file first calendar day of each month, together with its monthly installments of minimum rent due hereunder, an amount equal to 1/12 of its proportionate share thereof. As soon as'practicabie following We close of each Tax Year, Landlord shall submit to Tenant a statement Indicating the actual amount of the Taxes assessed or imposed against the Slfopptng Center for the immediately preceding Taz year, and the amount of the rbsulting balance due thereon; or overpayment thereof, as the case. maybe, with an appropriate adjustment to be . thereupon made betweeq the parties, on demand, on the basis of such statement. Each statement shall be binding upon Tenant, its successors and assigns, as to the matters set forth ' therein, if no objection is raised with respect thereto within ninety (90) days after submission of each statement to Tenant. The term "Tazes" shalt not indude'anyJnterest~or other charge imposed by any fazing authority as a penalty or delinquency charge, based upon late payment of any tax obligation by the Landlord. The failure of Landlord to provide such statement to Tenant as required above shall not relieve Tenant of its obligations hereunder or for the specific Taz Year in which any such failure occurs, nor shall such failure in any way relieve the Landlord from its obligation to provide such statement. - ~ ., As used herein, the term "Taz Year" shalt be deemed to mean each twelve (12) month period (deemed, for the purposes of this Paragraph 26 to have 365 days) established as the real estate Taz Year by the tazfng authorities having lawful jurisdiction overWe property comprising the Shopping Center. For and during the first Tax Year (or Partial Tax Year, as 19 the case may be) occurring during the term of this Lease, the Tenant's estimated proportionate share of the Taxes applicable to the Shopping Center shall be payable monthly in the amounts set forth on Page One hereof as "Initial Tax Share", payable monthly as above provided, the same to be deemed additional rent hereunder and subject to the annual :adjustment hereinbefore provided. Tenant covenants and agrees that it if this Lease is terminated by reason of default on its part, or it if fails to take possession o[ Demised Premises or leaves the Demised Premises prior to the expiration of the term hereof, it shall remain liable to pay its proportionate share of such Taxes. Tenant agrees that this is not to be construed as a penalty, but rather as a portion of the proper measure of Landlord's damages in the event of a breach of this Lease by Tenant as aforesaid. If at anytime during the. term of this Lease, or any extension or renewal thereof, the laws of any oae~or more of the jurisdictions in which the Shopping Center Is located Imposes, '.:charges, assesses or levies upoa•or against the rents (whether guaranteed minimum; percentage •rent or additional rent, or any or aU of the foregoing), or any other consideration is lieu of the teat payable hereunder, a tax, imposition, charge, assessment, levy, ezdse !ee or • license. fee, then in the absence of any provision fo the contrary specifically contained In such laws, tee same shall be paid in full by the Tenant andauch obligation may be enforced by Landlord In toe same way and manner as provided for the enforcement of the payment of minimum rent, percentage rent and additional rent hereunder. TfbE1VTR,SEVEN. EMINENT DOMAIN. If 10% or more of ttie bailding of which the Demised Premises is a part or 15°/. or more of the Shopping Center shat! 6e acquired or condemned by rlght,of eminent domain for any public or quasi: public ase:or purpose, theu Landlord at its election msy_ terminateahis~Lease by giving notice to Tesiaut of its election to do so, and in such event rentals shall be apportioned and adjusted as of the date of termination. If the term of this Lease shall not be terminated as aforesaid, then tlic same shall continue in fuU force apd effect,:We Landlord shall within a reasonable time after possession is physically taken (subject to delays due to shortage of labor, materials pr equipment, labor difficulties, breakdown of equipment; governtuent restrletlons, fires, other casualties or other causes beyond the reasonable control of Landlord) repair or rebuild vrbat may remain of the ..Shopping Center; exerting its~best efforts to preserve the Demised Premises for tbt occupancy of the Tenant. Should say such acquisition or condemnation.include the Demised Premises or any ~ortioa thereof and Landlord shall not elect to terminate this Lease as aforesaid, then and in such event a just proportion of the minimum rent shall be abated, according to the nature and extent o[ the injury of the Demised Premises, until what may remain .of the Demised Premises shall be repaired and rebuilt sa aforesaid; and thereafter a jest proportion of the minimum rent shall be permanently ab#ted, accprding to the nature and extent of the portion • . of the Demised Premises acquired or condemned fot the balance of.the term of WIs.Lease.. Landiord.reserves to itself, and Tenant assigns to Landlord, all rights to damages accruing on account of any such taking pr.coademnation or by reason of any act of any public orquasi-public authority for which damages`are payable. Tenant•agrees to execute such instruments or assignment as may be required by Landlord, to join with Landlord is any petition for the recovery of damages, ii requested by Landlord, and to turfl over to Landlord any such damages That maybe recovered in any such proceeding. I[ Tenant shall tai! to execute such instruments as maybe required by Landlord, or to undertake such other steps as may be requested as herein stated, then and in any such event, Landlord shall be deemed the duly authorized Irrevocable agent and attorney-if-fact of Tenant to execute such instruments and undertake such steps as herein stated in and on behalf of the Tenant. It h agreed and understood, however, that Landlord does pot reserve to Itself, and Tenant does not assign to • Landlord any damages payable far trade fixtures Installed by Tenant at~its own cost and expenses which are not part of the realty. ~~ TIVENTY-EIGII7: INTERPRLTATION. IC is agreed that ~if any provision of this Lease shat! be determined to be void by any court of competent jurisdiction then such determination: shalt not affect any other provision of this Lease; all of which other provisions shall remain in full force and~effect; and it is the intention of the parties hereto that If any provision of this Lease is capable of two constructions, one of which would render the provision void and the other ofwhicb would render the provision valid, then the provision shall Lave the meaning, which renders it valid. 20 '. - ~. ~kTIPE'NT I!'NINE..•~MISCELLANEOUSPROV_ISIONS.` ~It ts~agreed ttiaCieitLer ~ ~~ -' Landlordnoranyone actiag on`its behalf.has' made any statement, promise or agreement, or ' taken upon.itsblf,any'engagementwhateverwerbally or In writing; in~confllct with the terms of this~Leaseior,thatin•any way modifies;lvarles, alters;`enlarges or invalidates.anyof its= ~ °i provisions=sind that no obligations of. the Landlord shall be applied in addltloa to the obligations herein expressed. ~::.., „ . ...:. .. . .:.: ; ..:. .:: r ;:::: , sa, ~ ;,Within' ten days after request therefor by Landlord, or in the eventthat it be .required upott.alny sale'assignmeat or hypothecation of this Lease and/or of the Demised Premises aad/or;,theaapd thereunder by.Landlord,.3Tenant agrees to deliver in recordable form a .-.certificate. ~to:auy proposed mortgagee or purchaser, or to Landlord; certifying (if:uch be the case) that this Lease is in full force and effect and that there are no defenses or offsets thereto by..Teaant (or stating those dalmed by. Tenant), and such other relevant facts as may be . ~thereia requested. ' The title of the various Articles of this Lease are for reference and, index purposes only, and none of them shall be taken into consideratloa or given any effect whatever ia, . determining the meaning or scope of the Article to whIc6 aay of them apply.. Toe use of any pronoutl referring to either of the parties of this Lease shall be construed to include any or no gender or any.aumber/ ~ - : .. .-.:: a a ~ k;: s.. ~. ~ ~ - ,.: ; . It is understood that.the Term Landlord sud;Teaaut used herein,ahail be.construed to mean Landlords and Tenants where there;tsimore.than one,sand necessary grammatical changes required to make.any provisions hereof. apply either to:corporationa or,individuais, - . . masculine or feminine,shall !n all'eases<be:assumed:as though,fuAyJezpressed.,:.e~:{:: ~ .:,. . The word "Landlord" as used iq this Lease means only the other for the tame being of Landlord's Interest in the Lease.. In the event of any assignment of Landlord's interest in this Lease, the assignor hAll.no'longerbeliable,for;Weperformaace or;observaace`of any ,, agreements of conditionf on the part of the,Laadlord.to be performed or observed,.; ' In the event,the Tenant,hereunder shall be a..corporatton; the parties executing t~ls Lease hereby coveaant~andwarrpnt thatd. she Tenant is a duly, qualified corporation and all steps have been taken prior:to the date hereof.to qualify Tenant to do business in the state wherein the Demised Premise: are located; all franchise and corporate lazes have bees paid to date:. all future forms, reports; fees and :other documents necessary to comply with applicable laws will be taken or ailed when due.:,; : , ,y ;,; ,; ,,• ; , .:;_ ;<._ : , - Ia addItioa to the miahnam and percentage rents herehs .provided,:all other payments to be made 6y:Teaant;.either to~Landlord.or Merchants Association, shall be deemed to be and shall become additional rent hereunder whether or not the same be designated as such, -and shall be induded.latahe~term!!rent".wherever.in this Lease (notwltbstaading.thut the words "additional:rent'!, are used in, ~peciflc cases; but not used in "other: cases); and shalt, : . . unless otherwise specIficaUy~.provided herein; be due and payable upon demand or together with the next Succeeding~installment.of minimum rent, whichever shall first occur, and Landiord•shall have the same remedies for failure to pay the same as for s'non-payment of minimum rent: ,: x~ , : :z ..r :, ~ , a;: ~~ a~ :.~~Ii , _.,:; s~ : ~, , Anything contained in this Lease to.the contrary notwlthstanding:~Tenant'agrees that it should look solely to-the Estate and property of the Landlord~of this'Shopping Center for the collection of any judgment (or other judicial process) requiring the~payment of money by. Landlord in the event of a default or breach by Landlord with the.respect to~anyof the terms, covenants and conditions of this Lease to be observed and/or.performed.by Landlord, apd no other property or assets of Landlord shall become subject to levy, ezecutlon, attachment or other enforcement procedures for the•satisfactioa of Tenant's remedies„:I[the:building is .~ . transferred or conveyed, Landlord shall 6e relieved of all covenants and obligations under .. ; .. this Lease thereafter occurring and Tenant shall thereafter.look to such transferee !or the ' performance and observance thereof.:;~4 ~ ' .E' / .... :. .. i;. 1. ~ ~ . 1, ,._ .. THIRTY.:MERCHANTS'ASSOCLgTION. Tenant agrees that as soon as a Merchants' Association Is organized, controlled and operated by and among tlie,tenants of the Shopping . Center, it shall promptly become a member of, and during the term of this-Lease and any ' extensions or.renewals thereof, IE shalhabide by the regulations of and remain is good . ' standing such:Assodatloa, as-.well as participate fully in its activities and promotional programs. >,: ;: . Tenant agrees to pay dues to the Merchants'.Assoclation an amount:`assessed.per annum, such sum to be used solely for xdvertisiag.aad promptlgnat purposes, and to 6e payable upon receipt by Teaanf of statements or bills being rendered therefore by the Association. Said dues shall be subject to annual adjustments approved by a majority vote of 21 .., Landlord agrees that_upon its election to perform any of the work herein, it shall be performed is such a way so as not to interfere with the conduct of the Tenant's ordinary business at the Demised Premises. THIRTY-FOUR SUBMISSIQNQFLEASE. The submission of this Lease for ~examinatipn dues sot constitute an offer to Lease, and this Lease becomes effective only upon the execution thereof by Landlord and Tenant. Upon the execution of this Lease by the Tenant, the Landlord is granted by Tenant an option on the part of'the Landlord for thirty (30) days to execute and eomplete this Lease. Said option may not be withdrawn during said thirty day period. If Landlord shall not execute this Lease within said period and immediately thereafter returiu a fully executed copy to Tenant, the Tenant may withdraw its offer hereunder. THIRTY-FIVE: DELIVERIES. Tenant shall load or unload all merchandise, supplies, fixtures, equipment and furniture And cause the collection oirubbish only through the rear service door or doors of the Demised Premises. No dellverIes of any kind shall be made through the front entrance. No tieiivery vehicle shAli parkalong the.curb o[ the Shopping Center between the boors of 10:00 a.m. and 9:30 p.m. or In any area marked "No Loading". No delivery trucks or other vehicles servicing the Demised Premises shall park or otherwise remain upon the parking facllitIes of the Shopping Center,after 10:00 A.M: of each day. The . Landlord reserves the rightto.further regulate the actlvlties o[the Tenant.ia regard to - deliveries and aervidng of the Demised.Premises; and Tenant agreeg,to ubida by such further regulations of Landlord. •' ~ - , -: .. THIRT'Y,SDfG RECORDING OFLEASE BYZANDZORD Landlord,. may whenever Laadiord. deems it necessary,.record this Lease and abstracts and memoranda thereof,. whether required or permitted bylaw, in vrbatever States or jurisdictions In which the same Is recordable, at Tenant's sole cost and expense (Including, but not limited to, the recording fees, taxes and all other costs•aad expenses of recordation), which Tenant shaltpay to Landlord immediately upon such recordation; and further, Landlord shall have such right of recordation notwithstanding any recordation, if any, of this Lease or any abstracts or memoranda thereof by Tenant, or any other act of Tenant. • THIRTY SBVEN. POSSESSION. If Landlord is unable to tender Tenant possession of the Demised Premises as herein provided, by reason of the holding over of a previous occupant or by reason of any other cause beyond.tbe control of Landlord, Landlord shall not be liable to the Tenant therefor and during the period that Landlord !s unable to give possession; all rights, remedies and obligations of both parties hereunder shall.be suspended. • - Should the Commencement Date not Lave occurred in accordance w1tL .the apptlcable = provisions of this Lease within three (3) years from the date.hereof, the Lease shall be deemed ipso tactic, null sad void, of no force and effect between the parties, and both. Landlord and Tenant shall thereupon be relieved and released from all obligations and liability hereunder; . It.being the sole~tutention of the parties hereby to prevent this Lease from becoming vo[d or voidable by~ virtue of any.rule against perpetuities prevailing in the jurisdiction wherein the Demised Premises are situate, nothing herein contained to be deemed or construed to otherwise permit or justify for any reason the postponement of said Commencement Date. If Tenant shall enter the Demised Premises prior to the term hereof, Tenant shall°be liable as herein set out and such occupancy shall be upon the terms and conditions hereof except that rent shall be due at the time set forth in Paragrapli'One hereof.. Such prior occupancy shall be at the sole risk of Tenant. ~ . THIRTY-EIGHT: AGENCY. In negotiating and executing this Lease, Agent is ~actiag as Agent only, and shall in no event be held liable to Landlord or to Tenant or to any other party for the terms, conditions, fulfllltnent or.non[ulfillment of any of We terms, covenants and/or condltlons of this Lease, or for any action or proceeding that maybe taken by Landlord against Tenant or by Tenant against Landlord or be or on behalf or through either of them or any third party. ~ . THIRTY-NINE. LIMITATION OFLL4BILITY-LANDLORD. In theeventthatthe Landlord may be or elect to be or to adopt the form of a iim~ited ar general partnership or of a Real Estate Investment Trust; Tenant agrees that the Tenant shall (whether general or limited) not file a claim against any partner personally or against any trustee thereof by 23 ~•. t. • . reason of any matter arL4htg under the terms of this Lease or arising is connection wifl~ the use or occupancy of the Demised PremLses, but shall look solely to the Estate and property of the Landlord in this Shopping Center as stated. in Paragraph 29. No personal asset or any . partner (general or limited) in such partnership or of any trustee of such Real Estate Investment Trust shall be subject to levy, execution, attachment or other enforcement pracedures,by.Tenaut orany successor or assign of Tenant on account of any.matter whatsoever relating to this Lease or to the use or occupancy of the Demised Premises. Consistent with the Intention expressed in the Immediately preceding paragraph, and - . notwithstainding anything to the contraryan-this Lease elsewhere set forth; either expressed o[ implied, Tenant agrees that ha all events it shall look solely toahe. estate and property of the Landlord (regardless o[whetite~ the entity ht a corporation, partnership, trust; individual or . `otherwise) In the Shopping Center for the collection of any judgment (or other. judicial . 'process) requiring payment of money by Landlord In the event of a default or breach by Landlord with respect to any of the terpns, covenants and conditions of this Lease to be .observed and/or performed by Landlord, and no older property or assets of Landlord shall, become subject to levy, execution, attachment or other enforcement procedures for the sattsfacttou of Tenant's remedies. If the building is transferred or conveyed,~Landlord shall be relieved of all covenants and obligations under this Lease thereafter occurring and Tenant shall thereafter look to such transferee for.the performance and observance thereof. . FORTY. This lease is granted apoa the express condition that Lessee and/or the . occupants of the premises herein leased, shall not conduct themselves in'a manner, which the Lessor fu its sole opinion may deem improper`or. objectionable, and that'itat say time during . 'the term of tlils'lease or aay'extension or`cout~nuatian thea`eof, ;Iessee`orsu~:occupier of the said premises s~iaU have conducted hiarself, 4ersel[or:thea~selves in a'uianner..vrbich Lessor.in its sole ophnton deems improper or objectionable, Lessce ahaU be taken'or have broken the . covenants and conditions of this lease, and Lessorwrill tie entitled to all of the rights and remedies granted and reserved herein, for the Lessee's failureto observe spy of~the covenants and coudttioas of this lease. ' FORTY-.ONE.: Lessee agrees that from time fo time, within ten (1~0) days after Lessor's . ~ written request, Lessce will ezecate, acknowledge and deliver to Lessor. a statement certifying . to such reasonable informatipn regarding'tliislease as Lessor may request, htcluding, without limitation, the commencement find expiration`dates of the term of this lease, that this lease is .unmodified and in full force apd `effect (br it there have been modiiicaHons, that it is in full force and effect as modified'and atatingahe~modltlcatlons), the dates to which mtnimam rent, additional rent and all other same and rliaY~ges due: hereunder froar Lessee Gave bcen paid and stating whether or not to the knowledge oC the signer of such certificate, Lessor is to . default under _this lease,(and; tf so; apeci[ying each such default of which signer Las knowledge). FORTY-TWO. The Tenant acknowledges that It hss ez&mined the Demised Premises . . and agrees to accept the same without any representations; warranties or covenants on the part of the Landlord and. in the condition co`inmonly referred to as "as is". 24 .r SECTION FORTY-THREE~ENVIRONMENTAL CONSIDERATIONS 1: Definitions . . For purposes of this Section Forty-three of this Lease, the following definitions shad aPP1Y~ • ~ A. "Environmental Release": The term Enviroameatat Release shall mean the releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,anjections, . escaping, teaching, disposing, abandoning, discarding or dumping of aqy TozlcSnbstance froth, on, Into or about the Demised Premises or We Shopping Ceater. : • . B. "Shopping Center": The term Shopping Center shall mean the Larger - premises of which the Demised Premises as shown on Exhibit "A "and attactied hereto is part. C. "Municipal Waste":.. The term Manlclpal Waste shall have the meaning set forth in tUe Solid Waste Management Aci, 35 P.S. s6018.103. D. "Remediation": Activities in connection with the clean-up of an Environmental Release, including but not limited to sagtpllag, analysis, excavation, removal, disposal and, replacement of soils, ground water and/or other materials, in accordance with the provisions of all applicable laws, ordinances aad regulatioas, now or hereafter exacted. ' E. "Remediation Plan": The-term Remediation Plan shall mean a written plan to effect the Remediation of the Environmental Release which shall be prepared by sn environmental engineer acceptable to Landlord. • F..'.'Toxic Substance":, The term Tozic Substance sball'meati s :'!hazardous .substance," , "pollutant,'~or "contaminant,"has sucb•°terma are now: or beresfter'detined in all . applicable'federal, state; slid local laws, otYlipati"cea or: regulatloiis no~.or:`herea[ter enacted or amended, and anyyud alt tinker terms wblch'sre or ntsybe used in any~or all applicable • environmentallaws now ur.hereafter enacted to:define prohibited or`reguhtted aubstAnces. 2. Tenant `shall sot use the Demised Premises or any part thereof, or tire Shopping Center, or any part~thereo[, for the purpose of treating, producing, bandliag, trsnsferrjng, processing, transporting; disposing, using or atoring`a Tozic Substance.:..., • 3. Tenant aad its igeats, employees, contractors, Ucensees and invitees shall not cause or permit to exist, as the result of intentional or unintentional action or omission by one oz more o[ them,.aa Environmental Release.. 4. Notwithstandingthe foregoing, Tenant may use normal amounts'of cleaning • ~ materials and office supplies is We ordinary" course of Tenant's business in reasonable . quantities and provided the same are used, stored aad disposed of is compliance with sit applicable laws, ordinances and regulations, or now or hereafter enacted. 5. Tenaat shall dispose, remove and/or arrange for We disposal and/or removal of its Municipal Waste by a IIcensed Municipal Waste.transporter or Municipal~Wsste disposal .. • company approved by Landlord anti which shall be operated 1n accordance with applicable laws, ordinances and regulations; Tenaat and its agents, employees; contractors, licensees and . invitees shall hot place or pertuit.tbe placement of any Tozlc Substance In any waste . receptacle located In the Demised Premises or the Shopping Center, or theptumbiag or sewer systems of the Demised Premises or the Shopping Ceater. 6. If an Environmental Release is~ caused by Tenant as stated in subparagraph 3 above: • A. Tenant shall promptly notifyLandlord and any governmental agencies required by law to be notified; and . B. Tenant shag promptly submit fo Landlord the Remediation Plan for Landlord's approval. The Remediation Plan shall disclose a schedu{e and detailed description of Remediation activities which shall include lnforruation as Landlord may request, including: . (i) a plan for Remediation which shall Include all courses of action as maybe necessary to obtain a certIficatiop from the Department of Environmental Protection and the Federal Environmental Protection Agency, and any other appropriate local agency, that the Demised • .Premises and//or Shopping center have been remediated in accordance with all appiicabie laws, ordinances and regulations, and to the satisfaction'of these agencies: (ii) reasonable safety measures; (iii) a plan to avoid interference wiW the operation of the Shopping Center, ' or any part thereof, and the conduct of business tberein,~and; (iv) a plan to restore the Demised Premises and/or Shopping Center to the condition existing prior to the- - Environmental Release, including the replacing of soils, landscaping, regarding, repaving and repairing the improvements. Tenant shall modify toe Remediation Plan as requested by T.andlord. 25 --. . .. f' _ C:, Landlofd may, in its sole dLscretion (i) undertake all nor part of the Remediation, at Tenant's sole Cost, or (U) require that Tenant take all steps necessary to promptly remediate al! or part.of the Environmental Release, In accordance with the Remediation Plan, which • "shall be performed by environmental professionals approved by Landlord. Tenant shall, '..upon the request of the Landlord, deposit with Landlord 125% of the cost of performance of • the Remediation Plan, as reasonably estimated by Landlord PortYoas of the amount deposited vrith Landlord may, from time to time, be released by Landlord to 6e applied to the cost of performance of the,Remediation Pian. D. Upon receipt, Tenant shall immediately submit to Landlord true and complete copies of any correspondence between Tenant and any regulatory agency, concerning matters arising out of or relaiting to an Environmental Release. In addition, Tenant shall keep Landlord fully informed of its progress in complying w[th its obligations under this Section Forty-three of this Lease.. . E. Landlord shall Gave the opportunity to participate frith Tenant in negotiations with any governmental auWorities Involved in the Remediation, leading to the obtataing by Tenant of a.certification from such governmental agency that Tenant has remediated tGe Eaviropmentat Release to the tatisfactton of sucp agency. F Tenant shall obtain a certification from the "DEPARTMENT"~ of Envtronmeotaf Protection and the Federal Environmental Protection Agency; and.auy.appropriate local . agency, certilying that Tenant.hss performed and satlsfactorUy completed.the Remediation In . accordance with aU.appiicatile lawn; ordinances and regulations;.a copy.of,;yvhich shall be promptly. delivered to Landlord :, r ; : . ; . ~ ` ; . G: Tenant:Call 6eresponsI6le for the'cost bf repair or replace"meutof Anypart of the Demised Premises orahe Shopping Cehter;'aad the tlztures, equipment, personalty, sad • installations thereon•and therein; necessitated by reason of the Remediation::. . .7. Tenant steal[ comply with all appUcable lawn, ordinances and regalations of all governmental authorities, as naw or. hereafter:enacted, and shalt be solely responsible for any necessary alterations or renovations to the Demised Premises; Including but not limited to Remediation, structural renovations, or cessation of activities'necessary to comply with such 'laws, ordinances, and regulations. . , • 8. If aay certifications required is Section Forty Three shall wot bg obtained prior to. the expiration or earlier termination of this Lease; they until such certifieatton.is obtained; Tenant shall be responsible for and shall~payto Landlord an amount, for each day,.equal to one-three hundred sizty-tdt6 of the aggregate:of the highest amount of Minimum Annual . Rent and Additional Refit payable by Tenant in any Lease Year during the five (5) year ., period Immediately preceding, dhnlnistiM by any rent or other. revenues received by • Landlord by reason of the o~cupancy,of theDemiaed Premises during such period.. 9. Tenant represents and warrants Wat the plans and spect[icatlons to be submitted to . and/or Leretofore submitted and approved by Landlord for, the construction, dew,ratton, improvement and/or renovation of the Demised Premises are in Conformance with all appllcatile.taws, ordinances and reguiatlous of all governmental' authorities, . Tenant shall, prior to commencement of construction; obtain all licenses, permits and approvals necessary . for construction of the Demised Premises pursuant to the plans and specifications approved . by Landlord, and for the operation for the Demised Premises as contemplated by this Lease, including all land development requirements. All construction work performed. by Tenant or its contractors shall be in accordance with appUcable laws, ordinances and regulations of the governmental authorities having jurisdiction thereof. ~. 26 . ,'. •, _ „ ~' r 10. Except as otherwise allowed or provided herein, Tenant shall•noI use any Toxic Substance ' on the Demised Preinlsea,ur the Shopping Center, ot"her.than those substances listed below, - which shall he stored in appropriate safety;or"protective`coutalners~and'dispposed of in'the -: following artiounts and Irequencles~in accordance with alt applicable laws'ordiasnces-and `regulation's (if no listing is included hereuader'no such use shall be permitted or allo~ired ,_ under any.;circumstances):.;.•.:.ti~~~.~x~' `'~. ~ A '; ~' ~,:. -._ ., ~ : . TOXIC SUBSTANCE US>'~.D` "STORAGE METHOD DISPOSAL METHOD t AMOUNTMDISPOSED EPA/DER PER 1VIONTH "°`:'`"""` "~'"~""` ~ `" ` GENERATOR LD. NUMBER ;,, (If Applicable) '( '. ;;Tenaq~ shall give prior written notice to Landlord of any: proposed changes in the above`sc4edule,.-and within thirty (30) days after.Laadlord's receipt of such notice, Landlord .:may appro~"e ai~r~jecf sach~proposed change,°hi lta~solc dLscretion. "- ~~:;, ' . 11. The co'veuants, representations and warranties provided herein adaU survive the . ezpiratIon or eArlleraermination~of this-Lease.~ ~' •~ ~. x 12,~;~ .Teuan~:hall-pay, defend, indemtnify, rind hold harmless Landlord [rom aad against soy and qli clahns, losses, costs, damages and IiabUities arising from or relating to , . `Environmental Releases, Remediation, or the ~aiture of Tenant, or its agents, employees, :contractors, ltceasees'or.invltees to comply with tt-e provisions of thi3 Section Forty-tl-ree. ' r ~ - .' _ ..e I ~ . ~ 5} ... ... .a .... .. .. .. r- N~:. ~ ~ ' .+~ . } ~ ~ • ' ` , 27 ~, 5 g ~ ~r'iti . +a~ ,, ~~ J =o, ~- a 3. tt. ,.. ~ ~ ~ •~ o ~~ u~ I o~°~ g ~~ . g ~ H - SS,~Z,.t~,~~°W~~Cy~> ~ aN~,~w ~ jo$oo~~ ~r I°- ~ ~~~ e~~g~~~~,~~.,~e~ RS ~ ~. .~ ~ N ~. ~ ~ -~'~ Y. *d • ~ $" 1.. TENANT is required to identify its premises by a sign, which it shall furnish and instal! of its own expense. Signs shall meet the Sign Criteria as outlined herein sad shall be approved by local authorities, which approval shat! lie obtained by TENANT and at its expense. Any sign which does not conform or is tmpropeNy manufactured and/or installed, -shalt be removed at TENANT'S expense: , . ~ ' 2. All signs •ahaU be iadivtdually lettered and internally illuminated as outlined in this • Exhlblt. Signs shall.have Underwriter's Laboratories label of approval on. ali parts and completed display. • B. SIGN CRITERIA -EXTERIOR • 1. The sign shall be located on the ezterior fascia, as determined by the LESSOR 2. Sign wordage =hall be limited to the store name ogly; on a single line. - . .: • 3. The use of logos or insignia (which shall not exceed the average height oisiga • 'letters) may be-permitted; subject to LESSORiS approval.:: • 4 The'mazimum height ofsiga letters or eomponents shall not exceed 36.tnches The . • ~ length of the sign shah not ezceed 8.0 percent:of the store front. The length of the sign shall. be cbntered over the store front.. . • 5. LESSOR shalt provide wiring for one (1)120-volt circuit only to 6ullding fascia. Cost snd instillation of addltloaal circuits will be the responsibility, of TENANT.. • 6. A detailed description of design standards is attached hereto as C-A.. C. SIGN APPROVAL ~ . • ~ 1. No sign shat! be erected until written specifications and drawings for said sign are . . ' approved In writing by LESSOR 2. TENANT shall submit to LESSOR three (3) sets of all sign drawings and specifications which shall show the location of the sign on the buildings, fire size, construction materials, colors, script, attachment details; electrical load requirements, brightness, in-foot lamberts and name, address and phony number of sign manufacturer/installer. ' 3. LESSOR shall returp to TENANT one set of such signs plans within fifteen (15) days; with suggested modifications or approval. D. INDEMNIFICATION BYTENANT TENANT shalt, at its own risk and ezpense, erect said sign and maintain sign to a good 'state.ot° repair. TENANT hereby agrees to indemn[fy LESSOR against and save LESSOR harmless from any loss, cost or damage resulting from the erection, maintenance, existence or removal of said sign and further agrees to repair, at its sole ezpense, any damage which-may be caused by the erection, maintenance, existence or removal of such sign. Upon vacating the premises, TENANT agrees, at its sole expense, to remove all signs sad repair any and all • damage caused 6y such removal, within thirty (30) days of vacating~premises. 29 • . --. ,,,:.. . , - • ~~ W. - •/ •~• ~ - EXIiIBIT C-A ' DESIGN STANDARDS SIGNS 1..-Ail signs shall be comprised of individual letters.-Sign letters shallhave metal sides and . back made of'.040. gauge aluminum #313 Dark Bronze DuranodIc finish with minimum one- . ~ eighth (1I8") acrylic plastic faces, with;trip cap edging to match aluminum. These letters are to be moanted directly to the front canopywith non-corrosive fasteners. All attachment devices shall be concealed inside the letter casing. . ~ 2. $econdacy wiring and transformers shall be housed in metal conduit concealed behind the canopy fascia. No open wiring is permitted: 3. Sign letters not exceeding two and three-quarter inch (2'/•") stroke shall contain not-piore than two (2) rows, nor less than one (1) row, of 1'2 mm: neon tubing. 4, Sign letters not exceeding four inch (4") stroke shall contain not more than four (4) rows, but not less than two.(2) rows of 12 mm. neon tubing. . 5. The color rendition of neon~tubing shall be coordinated with the color,of the translucent plastic face o[ the sign letter: No exposed tubing or lawps will be permitted:..::> 6. Atl 12 mm. mercury-filled neon tubing eliall be coptrolled by self-contained U:S. approved 601VIA. H.P.F. 120-volt transformers'{as many as may be regalred). 30 MA» Transformers may be used with. orange, cgpper or red tubing only 7. •Teaant's sign contractor shall connect sign to wiring provided at a designated location ' behind exterior fascia. 8. No~e~cposed conduit, junction boxes or Caceways permitted: . 9. No light leakage will be permitted on sides,'back or front of Letter. 10. Signs shall not project beyond the frontface of building fascia by more than four (4) inches. " ~ " 11. All letters within the sign shall 6'e one (1)~color when sign is lighted. taear, smoked or tinted acrylic faces which allow for neon to'be seen will not be permitted.. ~~ 30 Addendum to the LeasB Contract Betweea Gateway Square Associates (Landlord) . And Lee Woodall Enterpe~ises, inc. Landlord's Work: Within sixty (60) days, weather permitting of a fully executed lease dgcument, Landlord- v+n'il hatire ail roof leaks patched and so that no farther leaks penetrate into the demised premises. If weather is not conducive to repair, file Iandlord wn716e required to make . repair as soon as weather is acceptable. Landlord agrees to pay. for one half of the lowest bid for replacement (units and installation) of the two '(2) nonfunctioning HVAC units for the demised space. The Landlord will not contribute to any upgrades or additional units necessary for the Tenants intended use. The two (2)' existing units for the previous office and pharmacy, which are in good working order, will not be included in the bid to the Landlord. No later than June 1, 2004, weather permitting, Landlord will patch all visible holes primarily caused by prior signage in the front waD of the demised premises above the door and windows, and blend them to approxitnataly the same color as the existing color. Tenant will send Landlord, via' overnight mail, the secartty deposit within fourteen (14) .days of Lease signing. ~ • . ~ ~ ~~ La dlord ~ Gjt1p' _ Date . •. t ~~ i ~ ~1 ~ ~`-~ it ess Date ~ ~ ~ / ~ /- a nt ~. ~ ~ Da e .~~` c% 1y/ ~oL W tness Date ,~; •~,~ BECKER , ASSOCIATES SUITE 140 111 PRESIDENTIAL BLVD. BALA CYNWYD, PA 190041086 July I4, 2004 Lee Woodall Enterprises, Inc. 1941 Montaray Drive Mechanicsburg, PA 17055 Attn: Mr. Lee Woodall Telephone: 610-668-9820 FAX: 610-668-4077 Deaz.Mr: Woodall: As a follow up to my telephone message of July 8, 2004, we were advised by Jon Powers, the Codes Compliance Officer of Hampden Township that your building permit has been ..issued for your leased premises at the Gateway Squaze Shopping Center. By copy of this letter, we are also informing you that you aze presently in default of your Lease Agreement dated January 19, 2004 between Gateway Square Associates and Lee Woodall Enterprises, Inc. since vcie have not received the July rental payment which was due July 1, 2004. . Can you please remit payment. as soon as possible. Thank you, Gateway Square Associates ~ ~ ~ ~~~ _~~~~~ Patricia M. Smith Property & Leasing Manager ~ ~ ~ ~. /plus Certified MaiUReturn Receipt 7001 2510 0008 8934 3070 . o ~ ~ . a o~. `4' SUITE 140 111 PRESIDENTIAL BLVD. BALA CYNWYD, PA 19004-1086 October 1, 2004 Mr. Lee Woodall 21 W. Mulberry Hill Road Carlisle, PA 17013 RE: Store ElO1C -Gateway Square Shopping Center, Mechanicsburg, PA Dear Mr. Woodall: Telephone: b10-668-9820 FAX: 614-668-4077 By copy of this letter, you are hereby advised Gateway Square Associates (Landlord) has exercised their option as outlined in Paragraph Twenty-Three of the Lease to terminate the Lease dated January 19, 2004 between Gateway Square Associates and Lee Woodall Enterprises, Inc.(Tenalit) effective.October 1, 2004. Landlord has taken possession of said premises terminating the rights of the Tenant in or to the premises. Sincerely, Gateway Square Associates %y~2,~G6~ atricia M. Smith .Attorney in fact for Gateway Square Associates Certified Mail 7001 2510 0008 8934 ~2851/Regular Mail BECKER ASSOCIATES ~ O ~ ' _ _. t w ti.~a =~~ ~~-, ~_ =_ `_ ~ °-n SHERIFF'S RETURN - OUT OF COUNTY CASE N0: 2007-03817 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GATEWAY SQUARE ASSOCIATES VS WOODALL LEE T/A LEE WOODALL EN R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT WOODALL LEE T/A LEE WOODALL but was unable to locate Him ENTERPRISES to wit: in his bailiwick. He therefore deputized the sheriff of DAUPHIN serve the within COMPLAINT & NOTICE County, Pennsylvania, to On July 5th 2007 this office was in receipt of the attached return from DAUPHIN Sheriff's Costs: So answe Docketing 18.00 Out of County 9.00 Surcharge 10.00 R. Thomas Kline Dep Dauphin County 37.25 Sheriff of Cumberland County Postage 1.31 75.56 / S109~0'7 07/05/2007 WETZEL CAVERLY SHEA PHILLIPS Sworn and subscribe to before me this day of A.D. ~n Thy C®~r~ ®f Coa~a~a®~ Pl~~s ~~ C~~~~r~~~.~ C~~~.~, ~'~~~sg~~~a~i~ Gataway Squar° Associates VS. Lee Woodall t/a Lee Woodall Enterprises No . 07-3817 civil Now, June 26, 2007 ~ I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of ~~'-r' County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheri' of Cumberland County, PA Affidavit of Service Naw, - , 20 , at o'clock M. served the within upon at by handing to a copy of the original and made lrnov~Tn to ~ the. contents thereof. So answers, Sworn and subscribed before me this day of , 20 Sheriff of COSTS SERVICE MQ,EAGE _ AFFIDAVIT County, P~. ~~~'itE II# ~E ~~PI'if~ Mary Jane Snyder Real Estate Deputy William T. Tully Solicitor Dauphin County Harrisburg, Pennsylvania 17101 ph: (717)780-6590 fax:(7l7)255-2889 Jack Lotwick Sheriff Charles E. Sheaffer Chief Deputy Michael W. Rinehart Assistant Chief Deputy Commonwealth of Pennsylvania GATEWAY SQUARE ASSOCIATES vs County of Dauphin WOODALL LEE Sheriff's Return No. 0978-T - - -2007 OTHER COUNTY N0. 07 3817 I, Jack Lotwick, Sheriff of the County of Dauphin, State of Pennsylvania, do hereby certify and return, that I made diligent search and inquiry for WOODALL LEE T/A LEE WOODALL ENTERPRISES the DEFENDANT named in the within NOTICE & COMPLAINT and that I am unable to find him/her in the County of Dauphin, and therefore return same NOT FOUND, June 29, 2007 BUISNESS DOES NOT EXIST AT THIS ADDRESS. Sworn and subscribed to before me this 29TH day of JUNE, 2007 E~!.L/ NOTARIAL SEAL MARY SANE SNYDER, Notary Public Highspire, Dauphin County My Commission Expires Sept 1, 2010 So Answers, Sheriff of Dauphin County, Pa. B .` ~' A ~~'~'- Y Deputy Sheriff Sheriff's Costs: $37.25 PAID BY COUNTY STRUBHA SHERIFF'S RETURN - NOT FOUND CASE N0: 2007-03817 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND GATEWAY SQUARE ASSOCIATES VS WOODALL LEE T/A LEE WOODALL EN R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT WOODALL LEE T/A LEE WOODALL ENTERPRISES but was unable to locate Them in his bailiwick. He therefore returns the COMPLAINT & NOTICE , NOT FOUND as to the within named DEFENDANT ENTERPRISES WOODALL LEE T/A LEE WOODALL 257 PENROSE PLACE CARLISLE, PA 17013 THIS BUSINESS IS NOT LOCATED AT GIVEN ADDRESS. Sheriff's Costs: S Docketing 18.00 Service 4.80 Not Found 5.00 _ ~ Surcharge R~~yf 6, 10.00 00 ~0 Sworn and Subscribed to before me this day of A.D. ~rnomas xi ine of Cumberland County ~HN RODGERS 9/11/2007 SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2007-03817 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GATEWAY SQUARE ASSOCIATES VS WOODALL LEE T/A LEE WOODALL EN R. Thomas Kline Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT to wit: WOODALL ENTERPRISES INC but was unable to locate Them deputized the sheriff of CHESTER in his bailiwick. He therefore serve the within COMPLAINT & NOTICE County, Pennsylvania, to On September 11th 2007 this office was in receipt of the attached return from CHESTER _ i~,~ Sheriff's Costs: So Docketing 6.00 Out of County 9.00 _ Surcharge 10.00 r' Dep Chester County 25.35 `'She Postage 2.74 09/11/2007 / C~,,, ~ 6~ JOHN RODGERS Sworn and subscribe to before me this day of , ff of Cumberland County A.D. A t In The Court of Common Pleas of Cumberland County, Pennsylvania Gatavay Square Associates VS. Lee Woodall t/d/b/a Lee Woodall Associates et al SERVE: .Woodall Enterprises Inc 07-3817 civil No. Now, August 13, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Chester County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. ~ -~ Sheriff of Cumberland County, _~ s ~_ Please mail return of service to Cumberland County Sheriff . Th~pk ~'~, A-~r~h Affidavit of Service ~ v-en'=' -xiDa n ~ Now, z ~/ r~r~„S-t- , 20~, at 3 o'clock ~ M. ~rvt~~e \\ ~~ 11 _,,. A W1th1I1 ~1C~, ~ YI~T upon at by handing to 3~2 C ~ c ~ cl C.r a ~ ~,~. copy of the original (~~ ~, (' '~Y~ and made known to ~ r-- the contents thereof. So answers, NOTARIAL SEAL Rebecca S. Yepremian, Notary Public West Chester Boro., Chester County My commission expires August 6, 2008 Sworn ands bscribe efore me thiso~lay of , 20 O-1 Sheriff of COSTS SERVICE _ MILEAGE _ AFFIDAVIT ZS County, PA FILED-UPCE Y T1,r Gateway Square Associates vs Lee Woodall, et al P^ _ A' 10: 0 I -: 07-3$17 CLI IDE ,- 'JCUMY Case No. - - 1E: ii X1v?YLViN1 A Statement of Intention to Proceed To the Court: Plaintiff, Gateway Square Associates intends to proceed with the above captioned matter. Print Name John P. Rodgers, Esquire_ Sign Name Date: 9-1-2010 Attorney for Plaintiff, Gateway Square Associates Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. 1. Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v. Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision (a) of that rule continues to be applicable. iI inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity, the course of the procedure is with the parties. If the parties do not wish to pursue the case, they will take no action and "the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter, he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d) for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket, subdivision (d)(2) provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision (d)(3) requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of. intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision (d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.