HomeMy WebLinkAbout08-0458IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
CIVIL DIVISION
No- 158
Olvi
v.
COMPLAINT
SEVEN HILLS, INC.,
Defendant.
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 350i Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,-PENNSYLVANIA
PR CAPITAL CITY LIMITED )
PARTNERSHIP, )
Plaintiff, )
V. )
SEVEN HILLS, INC., )
Defendant. )
NO.
Civil Action - Law
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 by the
court without further notice for any money claimed in the complaint or for any other claim or
relief request by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
4ht Floor, Cumberland County Courthouse
Carlisle, PA 17013
COMPLAINT
Plaintiff, PR Capital City Limited Partnership ("PR Capital City"), files the following
Complaint against Defendant, Seven Hills, Inc. ("Seven Hills"), as follows:
1. Plaintiff PR Capital City is a Pennsylvania limited partnership, with an address of
c/o PREIT Services, LLC, 200 South Broad Street, Third Floor, Philadelphia, PA 19102.
Plaintiff is the owner of the Capital City Mall ("the Mall") in Camp Hill, Cumberland County,
Pennsylvania.
2. Defendant Seven Hills is a Pennsylvania corporation. Seven Hills, as a tenant at
two locations in the Mall, trades as "Sbarro" and as "Taco Bell/KFC".
THE SBARRO LEASE
3. On or about June 30, 2005, PR Capital City and Seven Hills entered into a Lease
Agreement ("Sbarro Lease") for premises located at the Mall. (A true and correct copy of the
Sbarro Lease is attached hereto as Exhibit 1). Seven Hills t/a Sbarro is the Tenant and PR
Capital City is the Landlord under the Sbarro Lease. At present, Seven Hills t/a Sbarro occupies
Store Number FC-1 at the Mall.
4. Pursuant to the Sbarro Lease, Seven Hills was to make payment of, among other
things, fixed minimum rent and common area payments on the first of each month during the
term of the Sbarro Lease. A failure to make such payments when due and which continues for
more than ten (10) days after written notice that the same are past due constitutes an Event of
Default under Section 16.01 of the Sbarro Lease.
5. An Event of Default has occurred under the Sbarro Lease, pursuant to Section
16.01, in that Seven Hills failed to make payment of rent and other charges which are now past
due. PR Capital City gave written notice of the failure to pay on, among other dates, November
19, 2007, and more than ten days have passed after Seven Hills received notice of its failure to
pay without making the missing payments.
6. After an Event of Default, PR Capital City has the right under Section 16.02 of
the Sbarro Lease to "accelerate the whole balance of Rent, and all other sums payable hereunder
by [Seven Hills], for the entire balance of the term, or any part of such Rent and other sums."
Ex. 1, p. 25, Section 16.02(a)(i).
7. In addition, after an Event of Default, PR Capital City has the right pursuant to
Section 16.02 of the Lease "to terminate [Seven Hills] right of possession of the Premises by
summary proceedings or otherwise, without terminating this Lease." Ex. 1, p. 25, Section
16.02(a)(iv).
8. Through January of 2008, Seven Hills has failed to pay sums due under the
Sbarro Lease in the amount of $23,578.70. (An itemization of the amounts presently owing
under the Lease is attached hereto as Exhibit 2).
9. Due to the acceleration of the rent for the balance of the term, February 1, 2008
through June 30, 2015, Seven Hills owes PR Capital City accelerated rent in the amount of
$645,416.75.
10. Legal expenses, including attorneys' fees and costs, are also recoverable pursuant
to Section 16.05 of the Sbarro Lease.
THE TACO BELL LEASE
11. On or about December 8, 2005, PR Capital City and Seven Hills entered into a
Lease Agreement ("Taco Bell Lease") for premises located at the Mall. (A true and correct copy
of the Taco Bell Lease is attached hereto as Exhibit 3). Seven Hills t/a Taco Bell/KFC is the
Tenant and PR Capital City is the Landlord under the Lease. At present, Seven Hills t/a Taco
Bell/KFC occupies Store Number FC-4 at the mall.
2
12. Pursuant to the Taco Bell Lease, Seven Hills was to make payment of, among
other things, fixed minimum rent and common area payments on the first of each month during
the term of the Taco Bell Lease. A failure to make such payments when due and which
continues for more than ten (10) days after written notice that the same are past due constitutes
an Event of Default under Section 16.01 of the Taco Bell Lease.
13. An Event of Default has occurred under the Taco Bell Lease, pursuant to Section
16.01, in that Seven Hills failed to make payment of rent and other charges which are now past
due. PR Capital City gave written notice of the failure to pay on, among other dates, November
19, 2007, and more than ten days have passed after Seven Hills received notice of its failure to
pay without making the missing payments.
14. After an Event of Default, PR Capital City has the right under Section 16.02 of
the Taco Bell Lease to "accelerate the whole balance of Rent, and all other sums payable
hereunder by [Seven Hills], for the entire balance of the term, or any part of such Rent and other
sums." Ex. 3, p. 25, Section 16.02(a)(i).
15. In addition, after an Event of Default, PR Capital City has the right pursuant to
Section 16.02 of the Taco Bell Lease "to terminate [Seven Hills'] right of possession of the
Premises by summary proceedings or otherwise, without terminating this Lease." Ex. 3, p. 26,
Section 16.02(a)(iv).
16. Through January of 2008, Seven Hills has failed to pay sums due under the Taco
Bell Lease in the amount of $5,013.36. (An itemization of the amounts presently owing under
the Lease is attached hereto as Exhibit 4).
3
17. Due to the acceleration of the rent for the balance of the term, February 1, 2008
through December 7, 2015, Seven Hills owes PR Capital City accelerated rent in the amount of
$381,205.95.
18. Legal expenses, including attorneys' fees and costs, are also recoverable pursuant
to Section 16.05 of the Taco Bell Lease.
COUNTI
PR Capital City Limited Partnership v. Seven Hills, Inc.
(Breach of Lease - Money Damages)
19. The averments of the preceding paragraphs are incorporated herein as if set forth
in full.
20. Seven Hills has breached the Sbarro Lease by failing to pay the rent and other
charges due thereunder.
21. As a result of Seven Hills' breach of the Sbarro Lease, PR Capital City is entitled
to damages, including past due rent and charges and accelerated rent through the balance of the
term in the amount of $668,995.45, plus attorneys' fees and costs and applicable interest.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment
against Defendant, Seven Hills, Inc., in the total sum of $668,995.45 plus interest, attorneys' fees
and costs incurred by PR Capital City in the pursuit of this action, and any other relief the Court
deems appropriate.
COUNT H
PR Capital City Limited Partnership v. Seven Hills, Inc.
(Breach of Lease - Ejectment and Possession)
22. The averments of the preceding paragraphs above are incorporated herein as if set
forth in full.
4
23. Seven Hills has breached the Sbarro Lease by failing to pay the rent and other
charges due thereunder.
24. As a result of Seven Hills' breach of the Sbarro Lease, PR Capital City has the
right pursuant to Section 16.02(a) to recover possession of the Premises.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment
against Defendant, Seven Hills, Inc., for possession of the Premises known as Store Number FC-
1 at the Capital City Mall, plus costs and attorneys' fees incurred in connection with this action,
and any other relief the Court deems appropriate.
COUNT III
PR Capital City Limited Partnership v. Seven Hills, Inc.
(Breach of Lease - Money Damages)
25. The averments of the preceding paragraphs above are incorporated herein as if set
forth in full.
26. Seven Hills has breached the Taco Bell Lease by failing to pay the rent and other
charges due thereunder.
27. As a result of Seven Hills' breach of the Taco Bell Lease, PR Capital City is
entitled to damages, including past due rent and charges and accelerated rent through the balance
of the term in the amount of $386,219.31 plus attorneys' fees and costs and applicable interest.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment
against Defendant, Seven Hills, Inc., in the total sum of $386,219.31 plus interest, attorneys' fees
and costs incurred by PR Capital City in the pursuit of this action, and any other relief the Court
deems appropriate.
5
COUNT IV
PR Capital City Limited Partnership v. Seven Hills, Inc.
(Breach of Lease - Ejectment and Possession)
28. The averments of the preceding paragraphs above are incorporated herein as if set
forth in full.
29. Seven Hills has breached the Taco Bell Lease by failing to pay the rent and other
charges due thereunder.
30. As a result of Seven Hills' breach of the Taco Bell Lease, PR Capital City has the
right pursuant to Section 16.02(a) to recover possession of the Premises.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, demands a judgment
against Defendant, Seven Hills, Inc., for possession of the Premises known as Store Number FC-
4 at the Capital City Mall, plus costs and attorneys' fees incurred in connection with this action,
and any other relief the Court deems appropriate.
Dated: January 16, 2008
Respectfully submitted,
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
6
UNSWORN VERIFICATION UNDER 18 PA. C.S. 4 4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. § 4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative of the
Plaintiff identified in the attached Complaint and that averments of fact contained in such
Complaint are true and correct to the best of my knowledge, information and belief.
i
Dated: January 9, , 2004 By: `
Debra Lambert
Vice President - Legal
PREIT SERVICES, LLC,
Agent for PR CAPITAL CITY LIMITED
PARTNERSHIP
1
0
h N'
7, 65 C
LEASE AGREEMENT
BY AND BETWEEN
PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord
and
SEVEN HILLS, INC., as Tenant
TRADE NAME: SBARRO
Sbarro-CapftalCity-Final
May 18, 2005 1 Most/JTF
May 18,2005 EXHI BI T 1
kill FUNDAMENTAL LEASE PROVISIONS 41
This Lease is executed and made as of Jv'ne. 3 0 , 2005, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership (herein called "Landlord") and SEVEN HILLS, INC., a
Pennsylvania corporation (herein called 'Tenant"), Landlord and Tenant having the following notice addresses:
Landlord:
PR CAPITAL CITY LIMITED PARTNERSHIP
c/o PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
Attn: General Counsel
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
Management Office
3506 Capital City Mail Drive
Camp Hill, PA 17011
Attn: General Manager
Tenant:
Seven Hills, Inc.
1104 Ferwood Avenue
Suite 304
Camp Hill, PA 17011
Attn.: Raghu Tadavarthy
Copy to:
Seven Hills, Inc. t/a Sbarro
Tenant Store Number FC 1
Capital City Mail
3506 Capital City Mall Drive
Camp Hill, PA 17011
Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto,
subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease:
(a) Tenant's Trade Name: Sbarro, "Sbarro, The Italian Eatery", "Cafr3 Sbarro", "Sbarro, Fresh Italian
Cooking"; or any other name with "Sbarro" in it and used by all of Tenant's restaurants in Pennsylvania
(See Sec. 7.01)
(b) Rent Tenn: One Hundred Twenty (120) months commencing on the Rent Commencement Date. The Rent
Term expires on the last day of the One Hundred Twentieth (120'") month following the Rent Commencement
Date (the "Expiration Date"). (See Sec. 3.01)
(c) Tenant Store Number. FC1 (See Exh. A)
(d) GLA of Premises: 725 square feet (See Sec 104)
(e) Design Drawings Submission Date: March 1, 2005 (See Sec. 2.03)
(f) Tenant's "Construction Commencement Date": July 1, 2005
"
" (See Sec
2
03)
&
Construction Period
: Sixty (60) days .
.
(See Sec. 2.03)
(g) Minimum Rent:
Time Period Annual Amount Monthly Amount
Rent Commencement Date
through the 60"' month $84,999.00 $7,083.25
From the 61 s month
through the end of the Term $88,000.50 $7,333.38 (See Sec. 4.03)
(h) Percentage Rent:
Time Period Break Point The "Percentage"
Rent Commencement Date
through the 60"' month $1,062,487.50 Eight Percent (8%)
From the 61"r month
through the end of the Term $1,100,006.25 Eight Percent (8%) (See Sec. 4.04)
U) Rq OW Opp Q Sixty (60) days from the later of (1) Landlord's delivery of possession of
the Premises to iena (ii) Tenant's receipt of all permits required for the completion of Tenant's Work, so
long as Tenant timely applies for such permits and diligently pursues the same (See Sec. 4.02)
(j) Security Deposit: N/A
(See Sec, 2.02)
(k) Marketing Service Charge: $1.50 per square foot of the GLA of the Premises per Year (See Sec. 9.01)
Minimum Advertising Charge: N/A (See Sec. 9.02)
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 2
DAMENTAL LEASE PROVISIONS (CO )
(1) Certain Other Charges Payable by Tenant:
Tax Charge
Services Charges (See Sec. 5.01)
Refuse Handling Charge (See Sec. 6.02)
(See Sec. 6.04)
CAM Charge
Special Assessment (See Sec. 8.03)
(See Sec. 9.01)
(m) "Agent" and To Whom Rent Payable:
PR Capital City Associates LP
P.O. Box 644052
PITTSBURGH, PA 15264-4052
(n) Use: For use as an Italian-themed fast-food restaurant serving Italian foods customarily served in other
"Sbarro" restaurants including various Italian foods
salads
sou
s
izza
l
,
,
p
, p
s, ca
zones, brea
and non-alcoholic beverages, and for no other purpose. kfast and bakery goods
(See Sec. 7.01)
Sbarro-CapitalCity-Final
May 18, 2005 \ MosvJTF
alilk
LEASE AGREEMENT
ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1.01: REFERENCES AND CONFLICTS
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 shall be construed to incorporate all of the terms provided for
under such provisions, and such provision shall be read in conjunction with all other provisions of this Lease applicable
thereto. If there is any conflict between any of the Fundamental Lease Provisions and any other provisions of this Lease,
the latter shall control. The listing on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not
be construed to be an exhaustive list of all charges or the amount thereof payable by Tenant under this Lease.
Section 1.02: GENERAL DEFINITIONS.
(a) The term "Shopping Center" means the land shown on Exhibit "A" attached hereto and by this
reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time.
(b) The term "Mall Premises" means the Shopping Center excluding however the Majors' Premises and the
term "Mall Premises" includes the same as reduced, expanded or otherwise altered from time to time.
(c) The term "Landlord's Building" means the buildings, structures and other improvements shown in
general on Exhibit "A" and Includes the "Enclosed Mail" (hereinafter defined), but excludes the Majors' Premises
(hereinafter defined). Landlord's Building is part of the Mall Premises. The term "Landlord's Building" Includes the same
as reduced, expanded or otherwise altered from time to time.
(d) The term "Majors' Premises" (or "Majors Premises") means the premises shown on Exhibit "A", page 1
by such term, or by the word "Major" or name of the prospective or actual principal occupant thereof (the "Majors" or a
"Major"), and the term "Majors' Premises" (or "Majors Promises") Includes the same as reduced, expanded or otherwise
altered from time to time. The term "Major" (or "Majors") includes any replacement for or other substitute of the primary
occupant of a Majors Premises as well as, in the case of an expansion of the Shopping Center, the primary occupant of
the premises equal to or exceeding, in terms of GLA, the GLA of any one (1) of the Majors' Premises shown on Exhibit
"A" (even though those premises may not be originally shown thereon). References in this Lease to a Major or Majors
shall include any such replacement, substitute or additional Major and its premises are included within the terms 'Majors'
Premises" and "Major's Premises".
(e) The term "Common Areas" means all areas, facilities and improvements operated or provided at. or in
connection with the Shopping Center from time to time for the non-exclusive common use of Landlord, the tenants of the
Mall Premises and the Majors, and shall include but not be limited to the "Enclosed Mall" (hereinafter defined), parking
areas, roadways, ramps, traffic controls, truck ways, loading and unloading docks, delivery areas, sidewalks, stairways,
escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer areas, screening facilities,
merchandise pickup stations (excluding those of Majors, if any), public rest rooms and comfort stations, retaining walls,
landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force
mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage
systems, and lighting systems. The term "Common Areas" Includes the same as reduced, expanded or otherwise altered
from time to time.
(f) The term "Enclosed Mall" means the enclosed climate controlled pedestrian mall located in Landlord's
Building, and the term "Enclosed Mall" includes the same as reduced, expanded or ottiervNse altered from time to time.
(g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which
space is in the approximate location marked on Exhibit "A", however, the Premises is limited vertically to the ceiling
height above the structural floor set forth in Landlord's "Store Design Criteria" (defined In Section 2.03(b) hereof). In the
event the Premises is a corner location, the Premises shall exclude any rights with respect to the exterior side wall of the
Premises.
(h) The term "Fast Food Cluster" means the area or areas now or in the future specifically designated by
Landlord for small restaurant or other food service operations situated in Landlord's Building or elsewhere in the Mall
Premises, including the Individual premises and any seating areas located therein and the maintenance and housekeeping
areas primarily serving the Fast Food Cluster. The term "Fast Food Cluster" includes the same as reduced, expanded or
otherwise altered from time to time.
(i) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best
estimate of the number of square feet of area on all floors in Landlord's Building for the exclusive use by the tenants or
other occupants thereof and their customers, clients or other invitees including without limitation mezzanines and
balconies if used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of
Common Areas). GLA of the Premises shall be measured from the exterior face of exterior walls and the exterior face of
service corridor walls, the line along the front of the Premises where the Premises abuts the Enclosed Mall as shown on
Exhibit A (which line is commonly known as the "Lease Line"), or the Lease Line of any pop-outs referred to in Section
1.04, as the case may be, and the center line of any wail Tenant shares with other tenants or occupants of the Landlord's
Building or a Majors' Premises. With respect to all leasable areas other than the Premises, GLA shall be determined by
virtue of the definition contained In the lease in question. No deduction from GLA shall be made for columns, stairs,
elevators, or any Interior construction or equipment. From time to time during the Term, Landlord may give Tenant notice
of the GLA of Landlord's Building, at a given time for a given period of time, as such GLA may be revised because of
reductions, expansions or other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions
in the leases of other tenants or occupants. The GLA of the Premises and of Landlord's Building shall be utilized to
calculate the GLA Fraction (defined in Section 1.020) and to make any other calculations required to determine the
Sbano-CapitalCity-Final
May 18, 2005 1 Most/JTF A
charges to Tenant.
0) The term the denominator f which hall be the Fraction"
occupied GLA of fraction, Landlord's Building, osubj Which ect, howe however, to he provisions of Section
4.08.
event In the the leasable floor area ofLandlord's B wilding (less a any u Junior Landlord's Building Tenant's charges for Additional Rent shall be
calculated as though seventy-five percent (75%) of such floor area were occupied.
(k) The term "Junior Major(s)" means an occupant, (not herein identified as or otherwise hereunder
constituting a "Major") which owns, occupies or leases (1) any building or ground not connected to Landlord's Building (e.g.,
a so called "out parcel") or that does not open on to the Interior mail or (ii) in excess of 15,000 square feet of GLA in the
Shopping Center and the term "Junior Major(s') Premises" means the premises in the Shopping Center owned, occupied
or leased by a Junior Major.
(1) The term "Lease" as used in this document (the "Lease") shall mean the Fundamental Lease Provisions,
the Lease Agreement, the Exhibits attached hereto and Addendum, if any.
Section 1.03: EXHIBITS.
The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and hereby
made a part of this Lease.
EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of
the Premises.
EXHIBIT B Deleted.
EXHIBIT C Completion Certificate.
EXHIBIT D Landlord's and Tenant's Work in the Food Court.
EXHIBIT E Fast Food Court Cluster Tenant Exhibit.
Section 1.04: GLA OF PREMISES.
The GLA of the Premises shall be that set forth in the Fundamental Lease Provisions. For the purposes of this
Lease, the Break Point and Partial Year Break Point are collectively referred to as the "Break Point".
Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop-
out" all or a portion of the storefront. Should Tenant install a pop-out storefront, the GLA of the Premises shall be
increased to include the square foot area of the pop-out(s). The Minimum Rent and the Break Point shall be accordingly
increased, to include the area of such pop-out(s).
Section 1.05: CHANGES TO SHOPPING CENTER.
As between Landlord and Tenant, Landlord may at any time and from time to time eliminate land from, or add to or
substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any Improvements, or
change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the
Shopping Center or any part thereof, including, without limitation adding additional levels to any existing buildings therein.
Landlord agrees that in implementing its rights pursuant to this Section, it shall not change the Common Areas so
as to materially restrict access to or visibility of the Premises from other portions of the Enclosed Mall, Tenant hereby
agreeing that any kiosk, planter, bench and other amenities which are less than one hundred fifty square feet in size, eight
feet in height and located not closer than ten feet from the point at which Tenant's demising wall intersects with Tenant's
lease line shall be conclusively presumed not to so restrict access or visibility to the Premises.
Section 1.06: CROSS EASEMENT AGREEMENT.
Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this
Lease, the Shopping Center including, without limitation, the Common Areas and the Premises are and shall be subject,
subordinate and otherwise junior to any cross easement agreement (as they may be or may have been created, amended,
supplemented or otherwise modified from time to time) between Landlord and each occupant of the Majors or Junior
Majors who are parties thereto (such cross easement agreement being herein collectively called the "REA").
ARTICLE 2: PREMISES AND TENANT'S WORK
Section 2.01: LEASE OF PREMISES
Landlord, in consideration of the "Rent" (defined in Section 4.01) to be paid and the covenants to be performed by
Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at
the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein
as the Premises situated or to be situated in Landlord's Building, as the case may be.
Section 2.02: SECURITY DEPOSIT.
Deleted.
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May 18, 2005 \ MosUJTF
Section 2.03: PREPARATION OF PLANS AND TENANTS WORK.
(a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept same in the "as is"
condition in which the Premises exist on the date Landlord turns over the key to .the Premises to Tenant or Tenant's
designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future
condition of the Premises or what items, if any, the present occupant of the Premises is required to or may leave therein.
Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord
be liable in the event the existing occupant of the Premises fails to timely vacate the same, except that any delay in
occupancy shall extend the Required Opening Date specified herein for a period equal to the number of days between the
Construction Commencement Date specified herein and the date such former tenant vacates.
(b) Tenant shall perform all work required to be performed by Tenant to fully and completely remodel the
Premises and to adapt the same for Tenant's use, as such use is specified and limited by the Fundamental Lease
Provisions, all such work being referred to herein as "Tenant's Work". Tenant shall design the Premises in accordance
with Landlord's current store and storefront design criteria booklet and otherwise comply with all requirements therein
(herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received. Tenant shall instruct its
ar
chitect or designer to prepare Tenant's plans for the Premises in compliance with the Americans with Disabilities Act, the ir Act and
Clean
l other text of t?hi L se alnd the applicable laws, rules, Design Criteria, the after shall prevail. $Entry by Tenant to any the Inconsistencies between the
Premises prior to the Rent
Commencement Date shall be subject to all of the provisions of this Lease, except the duty to pay Rent but Tenant shall
pay for all utilities and services supplied to it during such period. Tenant agrees to perform Tenant's Work in accordance
with the provisions of this Lease and such manner so as not to cause any material interference with the use, occupancy or
enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall promptly cause to be repaired all
items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of
such damage and shall at all times keep all portions of the Shopping Center (other than the Premises) free from and
unobstructed by debris, equipment or materials related to Tenants Work.
(c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(herein called the "Tenant Coordinator") for the Landlord's approval design drawings (herein called the "Design
Drawings") specifying each aspect of Tenant's Work and specifically the proposed storefront and signing, sample
materials to be used in the Premises and sign, and the Interior layout of the Premises. The Design Drawings shall be
prepared in accordance with the Store Design Criteria. Within ten (10) days after receipt of the Design Drawings, Landlord
shall return to the Tenant the Design Drawings, either "approved", "approved as noted" or "disapproved"; if they are
marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before thirty (30) days after receipt
of the "disapproved" Design Drawings, Tenant shall resubmit to the Tenant Coordinator revised Design Drawings meeting
Landlord's objections. Landlord shall thereafter within ten (10) business days return the same to Tenant, marked as set
forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been
"approved as noted" or "approved". On or before thirty (30) days after receipt of "approved as noted" or "approved" Design
Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working drawings and specifications
(herein called "Final Plans") for architectural, electrical, mechanical, sprinkler and plumbing work within the Premises and
all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the Store Design Criteria.
The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as noted" or "approved"
by Landlord. The Final Plans shall Incorporate any revisions required by Landlord to the Design Drawings, including those
forming the basis of Landlord's approving the same "as noted". Within ten (10) business days after receipt of the Final
Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved". If
they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, on or before ten
(10) days after receipt of such "disapproved" Final Plans, correct any deficiencies stated by Landlord and resubmit within
ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or "approved". If Landlord
accepts Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator,
but Tenant shall revise such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant
Work in the Premises shall be constructed In such fashion as to comply with the notes disclosed on such "approved as
noted" Final Plans. If Tenant does not correct such deficiency and resubmit any disapproved Final Plans within the
required time period, such failure shall constitute an Event of Default, provided Landlord's disapproval is reasonable and in
good faith. Tenant's Work shall be performed only in accordance with the Final Plans, as marked "approved as noted" or
"approved" by Landlord. Tenant's failure to submit its Design Drawings on or before the Design Drawings
Date or Tenant's failure to commence Tenant's Work on or before the Construction Commencement Date halms be a
Event of Default pursuant to Section 16.01 unless such failure results from Landlord's inability to deliver possession of the
Premises to Tenant on the Construction Commencement Date or Landlord's failure to approve said Design Drawings
within the time period provided for by this Section 2.03(c).
(d) Deleted.
(e) On or before the Construction Commencement Date, Tenant shall'deposit with Landlord certificates of
insurance as required in Article 11 and a true copy of Tenant's building permit and Tenant shall commence Tenant's Work
and prosecute it diligently and continuously to completion Including installation of fixtures and equipment in the Premises.
Prior to the commencement of any Tenant Work or the delivery of any material to the Premises by any contractor,
subcontractor or materialman (herein called "Contractor"), Tenant shall deliver to the Tenant Coordinator a signed,
acknowledged and sealed waiver of liens (herein called "Contractors Waiver of Liens") from each Contractor supplying
services in excess of One Thousand and 00/100 ($1,000.00) Dollars in the form specified by Landlord. The Contractor's
Waiver of Liens provides, among other things, that the Contractor waives any and all lien rights that it may have against
Landlord's estate, right, title and interest in the Shopping Center and any part thereof Including, without limitation,
Landlord's Building and the Mall Premises. Within thirty (30) days after Tenant's opening the Premises for business,
Tenant shall deliver to Landlord an executed Completion Certificate in the form attached hereto as Exhibit "C".
(f) Landlord shall have the right to post and keep posted in the Premises notices of non-responsibility, or
such other notices as Landlord may deem to be proper for the protection of the Landlord or Landlord's estate, right, title
and interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any work which
might result in any claim, lien or other charge give to the Landlord written notice of its intention to commence said work in
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May 18, 2005 1 Most/JTF Q
sufficient time to enable Landlord
to Tenant's Work or to`y st file and record such notices. The provisitfns of this Section 2.03 shall apply with
any other work performed in or about the Premises at any time during the Term hereof.
Section 2.04: OPENING OF PREMISES.
(a) Tenant agrees to open its business to the public in the Premises no later than the Required Opening Date
specified in the Fundamental Lease Provisions.
(b) Tenant shall complete, or cause to be completed, Tenant's Work and the installation of fixtures,
equipment and merchandise no later than the Required Opening Date. If Tenant fails to open its business to the public in
the Premises on or before the Required Opening Date, Tenant shall pay to Landlord, in addition to Minimum Rent and
Additional Rent, an amount equal Fifty and 00/100 ($50.00) Dollars for each day Tenant's business remains not open in
the Premises from and after the Required Opening Date (counting the said Required Opening Date as the first such day).
Any and all sums and other charges payable by Tenant to Landlord pursuant to the Immediately preceding sentence shall
be paid on demand to offset administrative costs and expenses Incurred by Landlord as a result of Tenant's late opening
and shall in no way abrogate, or relieve Tenant from any of Tenant's obligations under this Lease, including without
limitation the obligation to open its business in the Premises, and Landlord shall have all other rights and remedies under
this Lease, at law and in equity, arising from Tenant's failure to open pursuant to this Section 2.04(b).
Section 2.05: MECHANIC'S LIENS.
(a) Tenant will not permit to be created or to remain undischarged any lion, encumbrance or other charge
arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien
or encumbrance or other charge (collectively a "Charge") against or upon the Shopping Center or any part thereof,
including without limitation the Mali Premises and Landlord's Building or the income therefrom. Tenant will not suffer any
other matter or thing whereby the estate, right, title and Interest of Landlord in the Shopping Center or any part thereof
including without limitation the Mall Premises and Landlord's Building might be impaired. If any claim or lien or notice of
claim or lien on account of an alleged debt of Tenant or any notice of contract or Charge by a person engaged by Tenant
or Tenant's contractor to work on the Premises shall be filed against or upon the Shopping Center or any part thereof
including without limitation, the Landlord's Building or the Mall Premises, Tenant shall within thirty (30) days after demand
from Landlord, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such claim or lien or notice of claim or lion or other Charge to be
discharged within the period aforesaid, then, in addition to any other right or remedy it may have, Landlord may, but shall
not be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure of the same by the
claimant and to pay the amount of any judgment in favor of the claimant with interest, costs and allowances. Any amount
so paid by Landlord and all interest, costs and expenses, including attorneys' fees, Incurred by Landlord in connection
therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on
demand. Nothing herein contained shall obligate Tenant to pay or discharge any Charge created by Landlord.
(b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work by Tenant or
Tenant's contractor in or about the Premises. No work which Landlord permits Tenant to do shall be deemed to be for the
immediate use and benefit of Landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against
the estate, right, title or interest of Landlord by reason of any consent given by Landlord to Tenant to do work In or about
the Premises or provide materials therefor. Nothing contained herein shall imply any consent or agreement on the part of
Landlord to subject Landlord's estate to liability under any mechanics' or other lien law.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS LEASE.
The term of this Lease (sometimes herein called the "Term") means the period of the "Interim Term" (hereafter
defined) followed immediately by the period of the "Rent Term" (hereinafter defined). The "Interim Term" means the
period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement
Date. The "Rent Term" means the period commencing on the Rent Commencement Date and ending on the Expiration
Date, as extended pursuant to Section 21.02 hereof or by agreement executed by Landlord and Tenant or sooner
terminated as provided herein, as the case may be. tl'f ,
f a this Lease shelf a
Section 3.02: YEARS.
The term "Year" means each successive twelve (12) month period from January 1 through December 31
occurring during the Term, plus, if applicable any Partial Year. "Partial Year" means the period between and including the
Rent Commencement Date, If that date is not January 1, and the next succeeding December 31 and, if applicable, if the
Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last
day of the Term.
ARTICLE 4: RENT
Section 4.01: TENANT'S AGREEMENT TO PAY RENT.
Tenant hereby agrees to pay for the right of use and occupancy of the Premises during the Rent Term, at the
times and in the manner herein provided, the Minimum Rent, Percentage Rent and Additional Rent. As used in this Lease,
the term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent.
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(
Section 4.02: RENT COMMENCEMENT DATE.
As used in this Lease, the term "Rent Commencement Date" shall mean the earlier of:
(a) the date on which Tenant initially opens its business to the public in the Premises (the "Actual Opening
Date"); or
(b) the calendar date set forth as the Required Opening Date In the Fundamental Lease Provisions.
Section 4.03: MINIMUM RENT.
(a) The base rent Tenant shall pay Landlord for each Year shall be the amount set forth in the Fundamental
Lease Provisions as the Minimum Rent per Year and shall be payable in twelve (12) equal monthly installments, in
advance, on the first day of each calendar month.
(b) The base rent Tenant shall pay Landlord for any Partial Year shall be that amount set forth in the
Fundamental Lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this Lease,
Partial Year Fraction" means a fraction, the numerator of which is the number of days in the applicable Partial Year, and
the denominator of which Is three hundred sixty-five (365). The base rent payable for a Partial Year shall be paid in equal
monthly installments, in advance, on the first day of each calendar month, except that If the Rent Commencement Date is
not the first day of a calendar month, then that portion of such base rent which Is attributable to the days in that first partial
calendar month shall be paid, in advance, on the Rent Commencement Date.
(c) The base rent payable by Tenant pursuant to Section 4.03(a) or (b), whichever is applicable, is called the
"Minimum Rent" in this Lease. Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent Increases
during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a
partial month shall be disregarded.
(d) If, at any time during the Term the Shopping Center shall be expanded by the addition of one or more
Majors' Premises or the Shopping Center is expanded by more than 50,000 square feet of GLA, Tenant agrees that the
Minimum Rent provided in the Fundamental Lease Provisions shall be increased by fifteen percent (15%) upon the date
each such additional Majors' Premises first opens for business or the opening of the expanded Shopping Center. Landlord
agrees that the Break Point shall be likewise Increased by fifteen percent (15%).
Section 4.04: PERCENTAGE RENT.
(a) In addition to Minimum Rent, Tenant shall pay Landlord percentage rent (herein called "Percentage
Rent") as determined by this Article 4. The Percentage Rent for each Year shall be an amount equal to the "Percentage"
(which is set forth in the Fundamental Lease Provisions) multiplied by the amount of Gross Sales made during such Year
in excess of the applicable Break Point set forth in the Fundamental Lease Provisions. The Percentage Rent for each
Partial Year shall be an amount equal to the Percentage multiplied by the amount of Gross Sales made during such Partial
Year in excess of the Partial Year Break Point. The term "Partial Year Break Point" shall mean an amount equal to the
Break Point multiplied by the Partial Year Fraction for the applicable Partial Year and the Break Point and Partial Year
Break Point are collectively referred to as the "Break Point".
(b) In each Year or Partial Year, Tenant shall be obligated to pay Percentage Rent beginning with the first
month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break Point.
Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every succeeding
month during the remainder of such Year or Partial Year on all additional Gross Sales. Each payment of Percentage Rent
shall be paid by Tenant to Landlord without demand and otherwise as set forth in this Article 4 together with Tenant's
monthly statement of Gross Sales provided for in Section 4.06, subject to the annual adjustment provided for in such
Section 4.06.
(c) In the event any Break Point is subject to adjustment during the term of this Lease, and the date on which
any such adjustment is to occur (hereafter referred to as the "Rental Adjustment Data") is other than the first day of a
Year, the Break Point for the Year in which the Rental Adjustment Date shall fall shall be the sum of. (1) the Initial Break
Point multiplied by a fraction the numerator of which shall be the number of days in the period commencing on the first day
of the Year in which the Rental Adjustment Date shall fall and ending on the day immediately prior to the Rental
Adjustment Date and the denominator of which shall be three hundred s f
multiplied by a fraction, the numerator of which shall be the number of daaysIn theperi dum commencing o tithe Rental
Adjustment Date and ending on the last day of the Year in which the Rental Adjustment Date shall fall and the denominator
of which shall be three hundred sixty-five (365).
Section 4.05: GROSS SALES.
(a) The term "Gross Sales" means the total gross receipts and receivables of all merchandise, wares and
other goods sold or leased and the actual charges for all services performed, business conducted and accommodations
rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the
use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and Including the value of all
consideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to
collect, including but not limited to sales, leases and services:
(i) where the orders therefor originate in, at, from or arising out of the use of the Premises, whether
delivery or performance is made from the Premises or from some other place and regardless of the place of bookkeeping
for, payment of, or collection of any account; or
(ii) made or performed by mail, telephone, Internet, website or similar means and orders received or
filled or delivered in, at or from the Premises; or
. (III) made or performed by means of telephonic, mechanical or other vending means or devices in or
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for the Premises; or
(iv) which Tenant, and any subtenant, licensee, concessionaire and other occupant, In the normal and
customary course of its business, would or does credit or attribute to its operations at the Premises or any part thereof.
Any deposit accepted and retained by Tenant shall be included in Gross Sales. Each installment or credit sale
shall be treated as a sale for the full price in the month during which such sale is made, irrespective of whether or when
Tenant receives payment therefor. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or
gross receipt tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales.
(b) Only the following shall be excluded from Gross Sales:
(I) any exchange of merchandise between stores of Tenant when such exchange Is made solely for
the convenient operation of Tenant's business and is not for the purpose of consummating a sale made in, at or from the
Premises;
(ii) returns to suppliers, shippers or manufacturers;
(Iii) cash or credit refunds to customers on transaction otherwise Included in Gross Sales;
(iv) sales of fixtures, machinery and equipment, which are not stock for sale or trade, after use thereof
in the conduct of Tenant's business;
(v) amounts separately stated in the sales receipt and collected from customers which are paid by
Tenant to any government for any sales or excise tax imposed by law at the point of sale;
(vi) to employees at a discount of at least ten percent (10%) not to exceed two percent (2%) of
Gross Sales in any year;
(vii) non-edible, non-profit promotional items;
(viii) separately stated delivery charges; and
(Ix) proceeds of insurance claims for damages for loss of merchandise.
Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT.
(a) Tenant shall furnish to Landlord within twenty (20) days after the end of each calendar month during the
Term a complete statement (the "Monthly Report"), certified by Tenant (or a responsible financial officer thereof If Tenant
is a corporation), setting forth (1) the amount of Gross Sales during such month, (11) the aggregate amount of Gross Sales
during such Year (or Partial Year, as the case may be), including such month, (iii) the amount, if any, by which such
aggregate amount of Gross Sales exceeds the Break Point, and (tv) the amount of Percentage Rent previously paid by
Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shall be in such form and
style and contain such details and breakdown as Landlord may reasonably require.
(b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Year a complete statement
(the "Yearly Report") certified by the chief financial officer of Tenant, showing In reasonable detail the amount of Gross
Sales during such Year and the amount paid to Landlord pursuant to Section 4.04(b) for such Year. The Yearly Report
shall be accompanied by the signed opinion of the person certifying the Yearly Report specifically stating that such person
has read the definition of "Gross Sales" contained In this Lease, that such person has examined the Yearly Report of
Gross Sales of such Year, that such person's examination Included such tests of Tenant's books and records as such
person considered necessary under the circumstances, and that the Yearly Report accurately represents the Gross Sales
of such Year.
(c) An adjustment shall be made with the furnishing of each Yearly Report with respect to Percentage Rent as
follows: if Tenant shall have paid to Landlord an amount greater than Tenant is required to pay as Minimum Rent and
Percentage Rent under the terms of Sections 4.03 and 4.04(a), Tenant shall receive a credit of such excess against
payments of Minimum Rent next becoming due to Landlord; or, if Tenant shall have paid an amount less than was paid MinimumtRent a d Percenntage Rent to belipaidforthwith Tenant and retains by Landlord under the terms oshall the sum of the
f Sections 4.03 and
4.04(a) for any given Year be less than the Minimum Rent for such Year.
(d) The reports required by this Section 4.06 shall be delivers to Landlord at the notices address of Landlord
or to such other person and/or to such other place as may be designated from time to time by notice from Landlord to
Tenant.
Section 4.07: TENANT'S RECORDS $ AUDITS.
(a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or
concessionaire shall be maintained in accordance with generally accepted accounting principles. Furthermore, Tenant
shall keep at all times during the Term, at the Premises or at the home or regional office of Tenant, full complete and
accurate books of account and records in accordance with generally accepted accounting practice with respect to all
operations of the business conducts In or from the Premises, including the recording of Gross Sales and the receipt of all
merchandise and other goods into and the delivery of all merchandise and other goods from the Premises during the
Term, and shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as
well as copies of contracts, vouchers, checks, inventory records and other documents and papers in any way relating to
the operation of such business for at least three (3) years from the end of the period to which they are applicable, or if any
audit is required or a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such
audit or controversy Is terminated even though such retention period may be after the expiration of the Term or earlier
termination of this Lease. Such books and records shall be open at all reasonable times during the aforesaid retention
period to the inspection of Landlord or its duly authorized representatives, who shall have full and free access to such
books and records and the right to require of Tenant, Its agents and employees, such information or explanation and audit
thereof and the right to require Tenant to make such books, records and other materials which Tenant is required to retain
available at the Premises for such examination and audit. ptance
by the Landlord of Landlord's) exam nation and audit rights hereunder. Landlord may at any ea onable Rent time, upon be without prejudice to the
notice to Tenant, cause a complete audit to be made of Tenant's entire books, records and other t atteria s which riTenwritten
Is
required to retain (including the books and records of any subtenant, licensee, concessionaire and other occupant) for all
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May 18, 2005 1 MosVJTF
or any part of the three (3) year pert p mediately preceding the day of the givingsuch notice by Landlord to Tenant. If
such audit shall reveal a deficiency in any payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount
of the deficiency.
(c) if such audit shall disclose that (1) any of the Yearly Reports understate Gross Sales during the reporting
period of the report to the extent of three percent (3%) or more; or (ii) Tenant has not recorded Gross Sales, or kept books
of account and records, as and for the period required by this Section 4.07; or (iii) if Tenant shall be delinquent in delivering
to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or more than twice In any Year or Partial
Year, then such understatement, failure or delinquency shall be an Event of Default In addition, in the event of such
understatement or failure, Landlord shall have the right to bill to Tenant the amount of any deficiency in Percentage Rent
and the reasonable cost of said audit which shall be paid by Tenant within twenty (20) days after demand which deficiency
will bear interest at the "Default Rate" (defined in Section 16.03 hereof) from and after the date it should have been paid
until paid.
(d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such
violation, Landlord, or its duly authorized representatives, Is unable to conduct a proper examination and/or audit, the
parties agree that Landlord shall have been deprived of an Important right under this Lease and, as a result thereof, will
suffer damages in an amount which is not readily ascertainable and thus, in such event, Landlord, in addition to and not In
lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its option, to
collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (1)
Percentage Rent reported for the period or periods in question, or (ii) the annual Minimum Rent payable for the period or
periods in question. Tenant agrees to pay such liquidated damages.
Section 4.08: ADDITIONAL RENT.
In addition to Minimum Rent and Percentage Rent, Tenant shall pay, as additional rent (herein sometimes
collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to be
paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent". The
terms 'Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined in Articles 5 and 8, respectively. In computing
the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar basis as
the Tax Charge or the CAM Charge (collectively "Other Like Charges"), the net payments by the occupants of the Majors
and Junior Majors to Landlord toward the Taxes, the CAM Sum or the sums on which Other Like Charges are based
(collectively the "OLC Sums") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC
Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant
and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the
GLA Fraction shall not include the GLA of the Majors' Premises and the Junior Majors' Premises.
Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS.
Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be
paid when due without prior demand therefor (unless such prior demand Is expressly provided for in this Lease), shall be
payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this
Lease) and shall be paid by Tenant to Landlord at the payment address of Landlord set forth in the Fundamental Lease
Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to
Tenant. At the and of the Term, provided Tenant is not in default, Landlord shall refund to Tenant any amount of excess
Rent paid to Landlord and any other amounts due from Landlord to Tenant Any Rent, or installment thereof, which Is not
paid by Tenant to Landlord within ten (10) calendar days after it is due shall bear interest at the Default Rate. In the event
any installment of Minimum Rent or other sum under this Lease shall not be paid when due more than twice in any Year, a
"Late Charge" of five cents ($.05) per each dollar so overdue may be charged by Landlord, as Additional Rent, for the
purpose of defraying Landlord's administrative expenses incident to the handling of such overdue payments. If any checks
given to Landlord by Tenant shall not be paid on Initial presentation, Tenant shall pay to Landlord Fifty and 00/100 ($50.00)
Dollars to defray any cost incurred by Landlord as a result thereof.
ARTICLE 5: TAXES AND ASSESSMENTS
Section 5.01: TENANTS TAX CHARGE.
Tenant shall pay to Landlord in each calendar year, as Additional Rent, Tenants share of all real estate and other
ad valorem taxes and other assessments, impositions, excises and other governmental or quasi-governmental charges of
every kind and nature (including, but not limited to, general and special assessments, sewer and fire district assessments,
foreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and all
improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease.
Tenant's share of the Taxes in each calendar year (the "Tax Charge") shall be an amount equal to the product obtained by
multiplying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial Year).
"Taxes" shall also include Landlord's reasonable costs and expenses (including statutory interest, if any) in obtaining or
attempting to obtain any refund, reduction or deferral of Taxes, but shall not include any Interest, penalties, fees, charges
or assessments resulting from the failure of Landlord to pay taxes and/or assessments when due or any estate,
inheritance, succession, gift, transfer, franchise, corporate, net income, profit tax or capital levy that may be imposed on
Landlord. Landlord estimates Tenant's Tax Charge for 2005 to be One and 62/100 ($1.62) Dollars per square foot of GLA
of the Premises.
Section 5.02: PAYMENT BY TENANT.
equal monthly
installments in advance Ino u he mounts as are estimated and billed by Landlord based upon the total Taxes payable In
each calendar year. Landlord may revise its estimate and may adjust such monthly payment at the and of any calendar
month. The first such installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the
remaining number of days In the calendar year) and subsequent installments shall thereafter be due and payable at the
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beginning of each ensuing calendar month during the Term. In addition to the patents provided for In the immediately
preceding sentence, If, prior to the Rent Commencement Date, Landlord shall have prepaid all or a portion of the Taxes
applicable to the Term, the Tax Charge shall include and Tenant shall reimburse to Landlord the Tenant's share of such
Taxes (calculated in accordance with the provisions of Section 5.01), on or before the Rent Commencement Date.
Landlord shall send to Tenant an invoice setting forth Tenant's share of such Taxes, together with copies of receipted bills
evidencing Landlord's payment of such Taxes.
(b) After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (1) the
amount of Taxes on which the Tax Charge Is based, (ii) the amount of any refund, reduction or deferral expenses, (Iii) the
total GLA of the Premises and Landlord's Building on which the Tax Charge Is based and (iv) the amount of the Tax
Charge. If the aforesaid monthly payments on account of the Tax Charge for a given calendar year are greater than
Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess
against installments of the Tax Charge next becoming due to Landlord, and if said payments are less than Tenant's share,
Tenant shall forthwith pay Landlord the difference.
Section 5.03: TENANTS ADDITIONAL TAX OBLIGATIONS.
(a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other
charges levied, assessed or imposed by governmental or quasi-governmental authority upon Tenant or its business
operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold Interest, trade fixtures,
furnishings, equipment, leasehold improvements (including, but not limited to, those required to be made pursuant to
Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind
owned, installed or used by Tenant in, from or upon the Premises. If the property of Landlord is included In any of the
foregoing items, the aforesaid taxes, assessments, impositions, excises, fees and other charges shall nonetheless be paid
by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax, or other tax, assessment,
imposition, excise or other charge now or hereafter levied, assessed or imposed upon or against this Lease or any Rent or
other sums paid or to be paid hereunder, or Tenant's, Landlord's or Agent's interest in this Lease or any Rent or other
sums paid or to be paid hereunder. Should the appropriate taxing authority require that any tax, assessment, imposition,
excise or other charge referred to In this Section 5.03(a) be collected b Landlord or authority, then such tax, assessment, imposition, excise or other charge shall be paiddby Tenant to Landlord or to Agent
monthly as Additional Rent In accordance with the terms of any notice from Landlord or Agent to Tenant to such effect.
The taxes, assessments, impositions, excises, fees and other charges described in this Section 5.03(a) shall be the
obligation of Tenant and not Landlord or Agent. If any tax, assessment, imposition, excise, fee or other charge covered by
this Section 5.03(a) is imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after
receipt of each bill therefor.
(b) Nothing herein contained shall be construed to include In Taxes any inheritance, estate, succession,
transfer, gift, franchise, corporation, net Income or profit tax or capital levy that is or may be Imposed upon Landlord;
provided, however, that, tf at any time during the Term the methods of taxation prevailing at the commencement of the
Term shall be altered so that in lieu of or as a supplement to the whole or any part of the taxes now levied, assessed or
imposed on real estate as such there shall be levied, assessed or Imposed (1) a tax on the rents received from such real
estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof,
or (iii) a tax or license fee imposed upon Landlord which is otherwise measured by or based In whole or in part upon the
Shopping Center or any portion thereof, then the same shall be Included in the computation of Taxes hereunder, computed
as if the amount of such tax or fee so payable were that due if the Shopping Center were the only property of Landlord
subject thereto. If any gross receipts tax shall be payable by Landlord, Tenant shall pay the portion thereof attributable to
Landlord's receipts from this Lease.
ARTICLE 6: SERVICES
Section 6.01: UTILITIES. Duri electricity, sewer rents oar chaTerm, Tenant shall be solely rges, sprinkler charges, A.D.T. other alarm system, water treatment facility
water,
any other utility used or consumed in the Premises or ins and
with all connection and service cha providing heating and air conditioning to the premises together
r wired to supply rges and all taxes or other charges levied on such utilities. Should Landlord elect or be
e9 or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for
same, as Additional Rent, every month in the Term; provided that Tenant shall not be obligated to pay to Landlord an
aggregate annual sum therefor in excess of the aggregate annual amount therefor which Tenant would otherwise be
obligated to pay for similar utility usage and service as a retail customer of the public utility or municipal authority then
supplying such utility to the Shopping Center. In addition, Tenant shall also pay any taxes, surcharges, impositions,
penalties or other additional charges applicable to the utility service being supplied, provided that such taxes, surcharges,
impositions or other charges are required by law to be collected from Tenant or are paid by Landlord to its supplier of the
utility service in question. Landlord may, at its option, install an Energy Management System to efficiently conserve utility
usage and Tenant agrees to pay monthly, the sum of Fifty ($50.00) Dollars as Tenant's share of the Energy Management
System purchase, installation, maintenance and upgrade costs. If permitted by law, Landlord shall have the right at any
time and from time to time during the Term to either contract for service from a different company or companies providing
utility service to the Shopping Center.
(b) In the event the Premises does not presently contain an electric or other utility meter, at Landlord's
request, Tenant shall, within forty-five (45) days after receipt of such request and at its sole cost and expense, install a
meter of a type approved in advance by Landlord. Thereafter, at Landlord's request, Landlord and Tenant shall enter into
an amendment to this Lease specifying the procedures for reading such meter and the rendering of bills to Tenant for the
utility being so metered. In the event Landlord or the local authority, municipality, utility or other body supplies water and/or
sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and
sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which
now or hereafter Is assessed, imposed or may become a lien upon the Premises, or the Shopping Center, pursuant to law,
order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, or the water
Sbano-CapitalCity-Final
May 18, 2005 \ MosVJTF 11
or sewerage connection or system.uch charges shall be based on metredadings or other formula specified b
Landlord. y
(c) Landlord shall not be liable or responsible for any loss, damage or expense Tenant may sustain or Incur
by reason of any change, failure, curtailment, interruption, disruption, 'brown out" or defect in the supply or character of any
utility supplied to the Shopping Center or Premiss or if the quantity or character of the utility supplied by Landlord or any
service provider is no longer available or suitable for Tenant's requirements and none of the foregoing shall constitute an
actual or constructive eviction or entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its
obligations under this Lease. Tenant shall operate the Premiss in such a manner as shall not waste energy or water or
burden or damage the utility lines therein.
If any utilities furnished by Landlord become unavailable for a period in excess of two (2) days solely by
reason of Landlord's negligence and Tenant is forced to close its business to the public due to such interruption, then after
the third day of such dosing, Tenant's Minimum Rent shall abate until such time as service is restored.
(d) Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utility
services to the Premiss, without any responsibility to Tenant, except to connect at Tenant's sole cost and expense,
Tenant's distribution facilities therefor with another source for the utility service so discontinued.
Section 6.02: APPLICATION FOR UTILITIES.
Tenant shall make all appropriate applications to the local utility companies at such times as shall be necessary to
insure utilities being available at the demised premiss no later than the commencement of the term and pay all required
deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company.
Section 6.03: TRASH AND GARBAGE REMOVAL.
Tenant shall be solely responsible for trash and garbage removal from the Premises, Including the placing of all
trash and garbage in containers provided by Landlord for such purpose. In the event Landlord elects to furnish such
service to the tenants in Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for
such service (including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as
Additional Rent, in accordance with a schedule of charges to be established by Landlord (the "Refuse Handling Charge").
In no event shall Tenant be obligated to pay Landlord more for the Refuse Handling Charge than the prevailing competitive
rates of reputable independent trash removal contractors for service similar to that provided by Landlord. Tenant shall not
dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided
by Landlord, and in lieu thereof, Tenant shall arrange, at its sole cost and expense, to have all such items removed from
the Premises and Shopping Center in accordance with all Governmental Requirements (hereinafter defined).
ARTICLE 7: USE OF PREMISES
Section 7.01: SOLE USE AND TRADE NAME.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the
Premises for the use set forth in the Fundamental Lease Provisions and under Tenant's Trade Name set forth therein.
Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name without the
prior written consent of Landlord. Tenant agrees that if Tenant or anyone
Premises for a use or trade name not set forth in the Fundamental Lease ePro isiio shwitthoutrLa dloords p orswritten
consent, such conduct shall constitute an Event of Default. Tenant shall, at Its expense, procure any and all governmental
Premises and shall, at
licenses and permits, including, without limitation, sign permits, required for the conduct of business in or from the times, comply ep es nt or warrant that Itiwil obtain for Tenant t (or t at Tenant will be able to obtain) aney licand . ense oorrpermmil.
? Landlord dos not
it.
Section 7.02: HOURS.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its
business within and otherwise use the Premises in accordance with the terms and conditions of this Lease, including,
without limitation, the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (unless the Premises
are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will
keep the Premises open for business to the public at least: (a) every Monday through Saturday from 11:00 a.m. until 9:30
p.m.; and (b) also on Sunday from 11:00 a.m. until 6:00 p.m. (unless prohibited by jurisdictional authorities) as required by
Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option, on a per diem
basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord.
The per diem reduction shall be the amount of the applicable Break Point divided by 365 for each violation. Tenant agrees
that Landlord may change the foregoing business hours from time to time to reflect local custom or seasonal shopping
patterns provided that such changes are uniformly applied to at least eighty percent (80%) of retail tenants in Landlord's
B
uilding. Tenant shall not be required to keep the Premises open during hours when the Enclosed Mali is closed to the
public. The
pect to any business controlled by governmental
regulations nrits hours of opration,to the hours or opera on so pre scribed b such
further subject to applicable federal, state, and local environmental and other laws, r lees ormental
judgments or orders.
regulations, guidelliines,
Notwithstanding anything to the contrary contained in this Lease, Tenant shall not be required to remain open for
business during any hours when less than two (2) department stores and seventy-five percent (75%) of the non-
department store retail tenants of the Shopping Center are open for business, provided, however, this shall in no event
detract from Tenant's overall obligation to continuously operate In the Premises throughout the term of this Lease.
Section 7.03: OPERATIONAL REQUIREMENTS.
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 12
Tenant agrees that it:
(a) . will not in connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or
g provision oing out of shall not business restrict sales, the or similar type sale, or utilize any unethical method of business; provided, howev owner, thselling
at this
absolute freedom (as between Landlord and Tenant) of Tenant to determine its
prices nor shall it preclude the conduct of periodic, seasonal, promotional or clearance sales;
(b) will not use or permit the use of any apparatus for sound and/or light reproduction or transmission
including loudspeakers, phonographs, radios or televisions, or of any musical Instrument in such manner that the sounds
so reproduced, transmitted or produced shall be audible beyond the interior of the Premises; will not distribute, or cause to
be distributed, at the Shopping Center or in any part thereof any handbills or other advertising or notices; and will not
conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally
considered appropriate In accordance with standards of operation for the Shopping Center established by Landlord; will
not install any antennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior
of the Premises;
(c) will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the
confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes,
dust or vapors to emanate or be dispelled from the Premises;
(d) will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor
receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or
standing outside of said area of trucks, trailers, or other vehicles or equipment engaged in such loading or unloading in a
manner which may interfere with the use of any Common Areas or any pedestrian or vehicular use and good regional
shopping center.practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading
and services to the Premises prior to 9:30 a.m. each day,
(e) will not paint or decorate any part of the exterior or interior of the Premises, or change the architectural
treatment, fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's
written approval of such painting, decoration or change; and will remove promptly upon order of Landlord any paint,
decoration or change which has been applied to or installed upon the exterior or interior of the Premises without Landlord's
written approval, notwithstanding the above, Tenant reserves the right to make any non-structural additions, akerattons,
modifications, improvements or perform any other work not in excess of $20,000.00 in the aggregate in any Year without
the prior written consent of Landlord;
replace any will keep the inside
of the dean and I
or broken glass with glass of the same kind, size and quality; will maintain Pthe Premises at its owwil
n
expense in a dean, orderly and sanitary condition and free of insects, rodents, vermin, and other pests and will use an
exterminator designated by Landlord and at times designated by Landlord; will not bum or permit undue accumulation of
garbage, trash, rubbish and other refuse; will (subject to Section 6.04) remove the same from the Premises to compactors
or other receptacles designated by Landlord, and will keep such refuse in proper containers in the interior of the Premises
until so removed from the Premises;
(g) will comply with all applicable federal, state and local environmental and other laws, rules, regulations,
guidelines, judgments and orders and all recommendations of any public or private agency having authority over insurance
rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant,
including, without limitations the requirements Imposed by the Americans with Disabilities Act which Imposes requirements
relating to the design and use of the Premises and the requirements imposed by the Clean Air Act which imposes, among
others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants (collectively
the "Governmental Requirements"); will not use or permit the use of any portion of the Premises for any unlawful
purpose; and will conduct its business in the Premises in all respects in a dignified manner and in accordance with high
standards of store operation;
(h) will provide, or cause to be provided all security within its Premises as it deems appropriate;
(i) will also comply with and observe all non-discriminatory rules and regulations established by Landlord
from time to time In accordance with Section 8.05; notwithstanding the above, Tenant shall be permitted to use its
prototype exterior signage and/or canopies, price or menu boards and promotional banners, provided same are
professionally prepared and maintained and approved in writing by Landlord;
U) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities
inconsistent with reasonable standards of a first class shopping mall;
(k) will not use, or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space
outside of the Premises for the display or sale or offering for sale of any merchandise or for any other business,
occupation or undertaking;
(1) will provide or cause to be provided within the Premises, without cost or expense to Landlord, adequate
lighting and security for its licensees, invitees and employees during such periods as the Premises are open for business;
(m) will maintain at all times a full staff of employees and a complete stock of merchandise and other goods
consistent with the use of the Premises;
(n) will conduct its business to maximize Gross Sales;
(o) Tenant shall maintain the Premises in first-class condition throughout the Term of the Lease and shall
refurbish all worn surfaces to bring the same to like new condition, at Tenant's sole cost and expense, as same is
reasonably necessary during the Term;
(p) will conduct its labor relations and its relations with employees in such a manner as to avoid all strikes,
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 13
picketing, boycotts or hand billing at or about the Premises and the Mall Premises. tenant further that If, duri the
period of any work by or for Tenant In or about the Premises in connection with such work there s a strike, pi keteting,
boycotting, hand billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the
Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting,
hand billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction;
(q) will not, without obtaining Landlord's prior written approval, which approval may be withheld in Landlord's
discretion, install any storage or propane tank, whether above or underground, at the Premises or in the Shopping Center
and if Landlord shall consent to such installation, Tenant will comply with all applicable laws, regulations and underwriter
requirements concerning the installation, operation, and closure of such tank. Upon termination of this Lease, Landlord
shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests relating to the condition of
such tank and/or remove any tank installed by Tenant and associated contaminated material. Tenant shall be deemed the
owner and operator of any tank Installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tenant's
expense, to another location acceptable to Landlord;
(r) will, if applicable, install and properly maintain a grease trap and either a "black iron duct", or other self-
contained venting and exhaust system acceptable to Landlord. Such items shall be installed in a manner, of materials and
at a location approved in advance by Landlord and shall, at Landlord's option, connect to trunk facilities, if any, supplied by
Landlord for same;
(s) will not use the plumbing facilities for any purpose other than that for which they were constructed and will
not dispose of any damaging or injurious substance therein;
(t) will not install, or permit to be installed or operate any coin or token operated vending machine, game
machine, pinball machine, pay telephones, pay lockers, pay toilets, scales, amusement devices and machines for the sale
of beverages, foods, candy, cigarettes or other commodities, except solely for use by Tenant's employees in non sales
area and not to exceed collectively two (2) machines or other devices; and
(u) will not store, display, rent or sell any audio or video cassettes.
Section 7.04: TENANTS USE OF ROOF, EXTERIOR WALLS, ETC.
Tenant shall not, without having obtained the prior written consent of the Landlord, perform any work of any nature
whatsoever to the roof, exterior walls or to any of the structural portions of Landlord's Building or the Premises or in areas
reserved to Landlord or excluded from Tenant in the Store Design Criteria (except as necessary to service any of Tenant's
equipment located in such areas). Any damage to the Premises or any person or property occurring as a result of a
breach of this provision shall be the sole responsibility, cost and expense of the Tenant. Notwithstanding Tenant's rights
set forth elsewhere in this Lease, Landlord may erect additional stories or other structures over all or any part of the
Premises, Landlord's Building and any other part of the Mall Premises. In connection with such erection, or otherwise,
Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aids to such construction at
Landlord's sole cost and expense.
Section 7.05: OPERATION OF HVAC SYSTEM.
Tenant agrees, during the hours the Premises is open for business, to control and/or operate as applicable the
HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant so that
conditions inside the Premises are maintained within a range of 72 to 75 degrees Fahrenheit or within such range as may
be prescribed by applicable governmental authorities so that heat, ventilation and cooled air are not drained from the
Premises or the Enclosed Mall.
Section 7.06: EMPLOYEE PARKING AREAS.
Landlord may, from time to time, designate that particular portions of the Shopping Center parking areas (the
"Employee Parking Areas") are to be used by Tenant and its employees, or other individuals working at or from the
Premises. If Landlord does so, Tenant and Its employees shall park their vehicles only in the Employee Parking Areas.
Tenant shall furnish Landlord with a list of Tenant's and employees' vehicle license numbers within fifteen (15) days after
Tenant opens for business in the Premises, and at Landlord's request, the Tenant shall thereafter notify Landlord In writing
of any addition, deletion or other change to or from such list within five (5) days after Landlord makes such request.
Tenant shall notify each employee in writing of the provisions of this Section 7.0e prior to each employee commencing
employment or work at or from the Premises. If Tenant or any of its employees do not park their vehicles In the Employee
Parking Areas, Landlord may give Tenant notice of such violation. If Tenant does not cease such violation, or cause such
violation by the employee to cease, as the case may be, within two (2) days after Landkxd's notice of violation is given,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per da
vehicle. For any subsequent violations, said Twenty Five Dollars ($25.00) per da y Per violating
commence without the necessity of further notice, and Landlord shall, in addition, have the right to have the violating
vehicles towed at Tenant's expense.
Section 7.07: NON-COMPETITION COVENANT.
Deleted.
Section 7.08: SIGNS AND ADVERTISING.
Tenant shall not place or permit to be placed on the exterior of the Premises or windows or in the store front or
roof, any sign, banner, decoration, lettering or advertising matter (collectively a "sign") without the Landlord's prior written
approval. Tenant shall submit to Landlord reasonably detailed drawings of Its proposed signs for review and approval
Landlord prior to utilizing same; however, Tenant may without such approval use In the store front professionally made
reasonably sized signs indicating prices, styles and like information. All signs shall be Insured and maintained at all times
by Tenant in good condition, operating order and repair. Flashing signs are prohibited. Tenant shall install one internally
Sbarro-CapitalC*Final
May 18, 2005 1 MosVJTF 14
AOL
illuminated, individually lettered sign other type of sign as specified by Landlo above the storefront of the Premises
and professionally lettered name signs on its service doors in accordance with the Final Plans or other plans and
specifications previously approved by Landlord.
Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for
damage to the Premises reasonably caused thereby, to remove any Items displayed or affixed in or to the Premiss which
Landlord determines (in its reasonable judgment) to be in violation of the provisions of this Section 7.08; provided that
such items have not been previously approved by Landlord.
Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the
Shopping Center is open to the public and for one-half hour after required business hours and for such other periods as
may be reasonably required by rules and regulations established in accordance with Section 8.05.
ARTICLE 8: COMMON AREAS
Section 8.01: USE OF COMMON AREAS
authoriz(ead) Tenant and Its employees and invitees are, except as empowered and privileged during the Term to use the Common Areeaass for their respective lyy provided in this Lease,
in common with other persons. Tenant's right to use any meeting room or auditorium, if any, in the Common A leas shall
be subject to such schedules and payment of such fees or charges therefor as Landlord may from time to time adopt
governing the use thereof.
(b) Subject to Section 8.04, Landlord shall at all times have the right to utilize the Common Areas including,
without limitation, the Enclosed Mall for promotions, exhibits, carnival type shows, rides, outdoor shows, displays,
automobile and other shows or events, the leasing or licensing of kiosks, push carts and food facilities, landscaping,
seating areas, seasonal displays, decorative items, and any other use which, in Landlord's judgment, tends to attract
customers to, or benefit the customers of the Shopping Center.
Section 8.02: COMMON AREA MAINTENANCE SUM.
anner (ha)ereinaThe
set fo h and shall Maintenance Sum"
m
Incurred In a manner deemed by Landlord mot bnd prorated In the
appropriate
reasonable and d for
best
Interests of the Shopping the CommonnAre sthnd te Shopping Center (and any? additions thereto), ncludng oration, repair
limiitatio mthe ccosts nance of
expenses of:
(1) operation, Inspection and/or maintenance of the storm, sanitary, electrical, gas, steam, water,
telephone systems, lighting system (including poles bulbs, and fixtures), and other utility systems, including pipes, ducts
and similar items; directional signs and other traffic signals, markers, controls, signs (including all identification signs) both
on and off site:
(ii) snow, Ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and
repaving all parking surfaces, services areas and other portions of the Common Areas;
emergency water(ill)
srink her sea or maintenance sn systems. of all heating, ventilating and air cooling and other utility systems,
and P security, safety pumping systems, electrical systems and all escalator and
elevator systems and any other items, facilities, equipment, and systems furnished by Landlord as part of the Common
Areas;
(iv) premiums and other charges for insurance to the extent provided by Landlord, including without
limitation, liability insurance for personal and bodily Injury, death and property damage; insurance covering Landlord's
Building and the Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation;
p
Landlord as a result of late glass insurance for glass exclusively serving the Common Areas; boiler insurance (if carried); losses borne by
deductibles i surance by Landlord; La dlord's risk m nags self-Insured retentions
s and rent by Insurance l provided bysLandlord pursuant to
Section 11.02;
(v) operation and/or maintenance of gazebos, fountains, art features, sculptures, fencing and similar
items located within the Common Areas and Interior and exterior planting, replanting and replacing of all flowers,
shrubbery, plants, trees and other landscaping within the Common Areas;
(vi) operation and/or maintenance of Landlord's Building's structure, including, without limitation,
floors, doors, walls, ceiling, roofs, skylights, and windows;
(vii) maintenance and depreciation of all machinery and equipment used in the operation or
maintenance of the Common Areas (including but not limited to all escalators, elevators and other vertical transportation (if
any), security vehicles and equipment) and all personal property taxes and other charges Incurred in connection with such
machinery and equipment;
(viii) all license and permit fees, any and all parking surcharges that may result from any environmental
or other laws, rules, regulations, guidelines or orders;
(ix) the expense of Installation and operation of loudspeaker systems, music program services, cable
television systems, or similar audio or video transmission systems;
(x) personnel, including without limitation, cleaning and maintenance personnel, Landlord's
management staff [which includes the General Manager, Assistant Manager, secretaries, bookkeepers and accountants
(regardless of where the aforesaid personnel are located)] together with the uniforms, payroll, payroll taxes and employee
benefits of all such personnel;
(xi) the expense of security personnel and equipment, including, without limitation, uniforms as well as
transportation and surveillance equipment;
P y xii) electricityall
corn an
ewxpenses incurred by ndlord in connction with limitation, maintenan e, repair,installation, aand service costs
associated therewith; l) all ex
ses Incurred connection with reiifuse disposal nwater and sewer, Landlord
steam, texterior site lighting, electricity, ir? conditisning, tenants, In
Sbarro-CapitalCity-Final
May 18, 2005 1 MosUJTF 15
and other utilities, including, without limitation, any and all usage, service, hook-up, connection, availability and/or standby
fees or charges pertaining to same; charge cost of operatin(gxan)d maintaining the Com on In an amount ual to fifteen including but not limited to those percent
listed of the total In Sectio8aggregate
and
;
(xv) expanding, adding to or reconfiguring the Common Areas (or any portion thereof).
(b) Notwithstanding the foregoing, the CAM Sum shall not include:
(1) the expense of any repair or replacement required of Landlord pursuant to the reconstruction
obligations of Section 12.01;
(ii) depreciation (other than depreciation as above specified);
(ill) any utilities which are directly metered or submetered to tenants in Landlord's Building;
(Iv) any amounts paid by Tenant as part of its Food Court CAM Charge as described In Exhibit "E"
attached hereto and
.
(c) Notwithstanding anything contained in this Lease to the contrary, in calculating the "CAM Charge"
(defined in Section 8.03), the CAM Charge and calculation thereof may be based upon Landlord's estimates, which
estimates and payments thereon shall be subject to adjustments in future billings to Tenant based on Landlord's actual
cost, it being understood and agreed that in determining actual costs, Landlord in its sole discretion, will make allocations
of certain items between the Enclosed Mali and other portions of the Shopping Center of which the Enclosed Mall Is a part,
which need not be based on relative size or use.
(d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an
independent contractor or contractors or others and the costs therefor shall be included in the CAM Sum. Except as
provided hereinabove, none of the costs for the original construction and installation of the Common Areas shall be
included In the CAM Sum.
(e) If Landlord from time to time acquires, or makes available, additional land or Improvements for parking or
other Common Area Purposes, the CAM Sum shall also include all costs and expenses Incurred by Landlord in connection
with the operation or maintenance of said additional land and improvements.
(f) The words "maintenance", "maintain" or "maintaining" as used in this Article 8 includes, without limitation,
all repairs, replacements and other work and service of any type whatsoever.
(g) Landlord agrees that if it incurs in any single year expenditures which individually cost in excess of
$300,000.00 relating to the replacement of roofs, the replacement of mall HVAC units or the replacement of any other
mechanical or physical component of the Shopping Center then, for the purpose of Section 8.02, such cost shall be
amortized over the expected useful life of such item, in accordance with GAAP.
Section 8.03: CAM CHARGE.
(a) Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum In the manner set forth
in Section 8.03(b) and (c) below. Tenant's share of the CAM
CAM Sum for that period mult Sum for each calendar year shay be an amount equal to the
lplled by the GLA Fraction (the "CAM Charge"). For any Partial Year, the CAM Sum will be
multiplied by the Partial Year Fraction with the result multiplied by the GLA Fraction. Tenant's CAM Charge for 2005 shall
be Eight and 51/100 ($8.51) Dollars per square foot of the GLA of the Premises.
Landlord agrees that Tenants maximum payment of its CAM Charge for 2006 shall not exceed the CAM
Charge for 2005 plus five percent (5%) of such payment; and further, that any subsequent Year's payment shall not
exceed the immediately preceding Year's payment plus five percent (5%) of such payment. Notwithstanding the foregoing,
in making the foregoing calculation, Common Area Costs relating to utilities, insurance, renovations, snow removal and
security shall be excluded from the aforesaid limitation, and Tenant shall continue to pay its pro rata share of such items
without regard to the foregoing.
(b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calendar month
in the Term thereafter amounts estimated by Landlord to be Tenant's monthly share of the CAM Sum. Landlord may
adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated
costs.
(c) Following the end of each calendar year, Landlord shall furnish Tenant a statement covering the calendar
year just expired, certified as correct by an Independent public accountant or an authorized representative of Landlord,
showing the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect thereto as set
forth in the preceding Section 8.03(b). If Tenants aggregate monthly a
than Tenant's share of the CAM Sum, Tenant shall receive a credit for the excess aga nsttmonthl CI s^sttallllments on account are greater
of the CAM Charge next becoming due to Landlord; If said payments are less than said share, Tenant shall pay to
Landlord the difference forthwith.
(d) Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of any of
the expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over such
periods instead of including such expenses entirely in the year in which expended or incurred, in which event, the annual
amortization amount shall be deemed to be an expense incurred during each year of the amortization period,
notwithstanding that such expenses may have been expended or incurred prior to the execution of this Lease.
Section 8.04: CHANGES BY LANDLORD.
As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature
and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and thereto
from time to time which in its opinion are deemed to be desirable or which are made as a result of any federal, state or
local environmental or other law, rule, regulation, guideline, Judgment or order, including but not limited to, the location,
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May 18, 2005 1 Most/JTF 16
relocation, enlargement, reduction or addition of driveways, entrances, exits, automobile parking spaces,
customer parking areas (if any), the direction and flow of traffic, installation of prohibited areas, landscaped eareas, mployee and
and a
and all other facilities of the Common Areas. Landlord (or others entitled to) may from time to time make alterations
renovations, reductions, or additions anywhere within Landlord's Building or to the Common Areas or other part of the
Shopping Center or any lads or improvements added thereto, construct additional buildings or improvements on the
Common Areas or elsewhere and make alterations thereto, build additional stories on any buildings, construct multilevel
or elevated or underground parking facilities, and construct roof, walls, and any other Improvements over, or in connection
with any part of, or all of, the Common Areas in order to enclose same. Landlord agrees that in implementing its rights
pursuant to this Section, it shall not change the Common Areas so as to materially restrict access to or visibility of the
Premises from other portions of the Enclosed Mall, Tenant hereby agreeing that any kiosk, planter, bench and other
amenities which are less than one hundred fifty square feet in size, eight feet in height and located not closer than ten feet
from the point at which Tenant's demising wall Intersects with Tenant's lease line shall be conclusively presumed not to so
restrict access or visibility to the Premises. If, during the period of such alterations, remodeling, construction or repairs,
such work materially adversely affects or obstructs the flow of traffic to the Premises so as to render the Premises unfit for
the carrying on of business, from and after the third full business day of said Interruption, Minimum Rent shall abate until
the Premises are again rendered fit for the conducting of business. Further, Landlord
ensure that any construction, repairs, additions ad/or alterations shall not materially interfere with and/or impair Tenant's
use of the Premises or unreasonably interfere with and/or impair the conduct of Tenant's business therein.
Section 8.05: RULES AND REGULATIONS.
Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce against efficle
Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for affecting
ant aunt
use, operation and maintenance of the Common Areas, provided that all such rules and regulations
the proper andTenant ad
its invitees and employees shall apply equally and without discrimination to substantially all of the retail tenants in
Landlord's Building or substantially all retail tenants engaging in certain acts or of a certain use. The rules and regulations
herein provided for may include, but shall not be limited to, the hours during which the Common Areas shall be open for
use.
Section 8.06: LANDLORD'S MAINTENANCE AND CONTROL.
Landlord agr
mai
n and and rea onab a co dittiion t and man finer andl dt shall, as between Landlord and Tenant, all times duriring the Areas in h?
the sole and exclusive control, management and direction of the Common Areas, and shall provide or cause to be
provided, security in the Common Areas at a level determined by Landlord (ad Tenant shall provide, or cause to be
provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from
time to time during the Tern exclude and restrain any person from use or occupancy of any of the Common Areas,
excepting, however, Tenant and other tenants of Landlord and bona fide invitees of either who make use of said areas for
their intended purposes and in accordance with the rules and regulations established by Landlord from time to time with
respect thereto. The rights of Tenant in and to the Common Areas shall at all times be subject to the rights of others to
use the same in common with Tenant, and it shall be the duty of Tenant to keep all of the Common Areas free and dear of
any obstructions or interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord may at
any time and from time to time dose all or any portion of the Common Areas to make repairs as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of an ghts to any person or to such extent
or to the public therein, to close temporarily any or all portions of the Common Areas and to do and perform such other
acts in and to Common Areas as, in the exercise of good business judgment, Landlord shall determine to be advisable
with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees and
invitees.
ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 9.01: MARKETING SERVICE.
(a) Landlord has established or will establish an advertising and promotional service (herein called the
"Marketing Service") to furnish and maintain advertising and saes promotions which, in Landlord's Judgment, will benefit
the Shopping Center. Landlord has established or will establish a fund (the "Marketing Service Fund") to be used by
Landlord to pay all costs and expenses associated with the formulation and carrying and other promotion of the Shopping Center. The program may inclue Wwithout limitation, sogram for the
shows, displays, signs, marquees, decor, seasonal events, advertising for the Shopping Center, Peclal events,
Promotional
other activities to market the Shopping Center based on sums collected from tenants. Tenant shall pay, as Its sha erof the
cost and expense of the Marketing Service for each Year, the amount set forth in the Fundamental Lease Provisions
(herein called the "Marketing Service Charge"). The Marketing Service Charge for any Partial Year shall be determined
by multiplying Tenant's Marketing Service Charge by the Partial Year Fraction. The Minimum Advertising Charge for any
Partial Year shall be determined by multiplying Tenant's Minimum Advertising Charge by the Partial Year Fraction.
(b) Landlord may appoint an advisory committee, composed at least of a representative of Landlord, a
representative of each Major, and a representative from each of six (0) tenants in Landlord's Building to review the
advertising and other promotional activities provided. Such committee shall function solely in an advisory capacity subject
to Landlord's discretion.
(c) In addition, Landlord may use the Marketing Service Fund to defray the costs of administration of the
Marketing Service, including, without limitation, the salary and benefits of a marketing director and related administrative
personnel, rent and insurance.
(d) Notwithstanding the provisions of this Article 9, Landlord may, at any time, in its sole discretion, decide
that Landlord will, on and after a certain date thereafter, no longer provide the Marketing Servk e. Landlord may cease
performing the Marketing Service on the date so specified by the Landlord, provided that nothing herein shall require
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May 18, 2005 1 Most/JTF 17
Landlord to breach or fail to perform an'y agreement or obligation it has made with o any third person in connection with
the Marketing Service. If Landlord determines that it Is or may be at risk of any such breach or failure, Landlord need not
cease performing the Marketing Service until Landlord determines that such ri
sk has passed.
(e) In the event that once during the Term there is (i) any renovation of the Landlord's Building or the
Enclosed Mall which also involves the renovation of the storefronts of fifty percent (50%) or more of the existing tenants'
spaces (a "Storefront Renovation"); or (ii) any expansion of Landlord's Building which increases the GLA of Landlord's
Building by ten percent (10%) or more (a "Building Expansion"), then at the time of a Storefront Renovation or Building
Expansion, Tenant shall pay to Landlord (whenever there is and in each case of a Storefront Renovation or a Building
Expansion) a special assessment (the "Special Assessment") in an amount equal to the Marketing Service Charge (and
in addition to the Marketing Service Charge) for the calendar year of completion of a Storefront Renovation or a Building
Expansion. Funds collected by the Special Assessment will be used for expansion/renovation advertising ad/or special
events to promote the Storefront Renovation or the Building Expansion.
(f) Landlord reserves the right, in its sole discretion, to recommence providing the Marketing Service at any
time after Landlord ceased providing the same.
Section 9.02: TENANTS MINIMUM ADVERTISING OBLIGATION.
Deleted.
Section 9.03: ADJUSTMENTS AND CHARGES.
(a) The Marketing Service Charge shall be adjusted annually by a percentage equal to the percentage
increase or decrease (but in either case no more than three percent (3%)) in the electronic, print and outdoor advertising
rates of the media used for advertising and promotions in.the preceding calendar year In the media market in which the
Landlord's Building is located; provided, however, that the Marketing Service Charge shall not be less than as set forth in
the Fundamental Lease Provisions. The calendar year in which the Rent Commencement Date occurs shall be
considered the base calendar year and every other calendar year thereafter a revised base calendar year in computing the
adjustments hereunder.
(b) The Marketing Service Charge shall be paid in equal monthly installments, in advance, on the first day of
each month, except that if the Rent Commencement Date Is not on the first day of a calendar month, then that portion of
the Marketing Service Charge which is attributable to the days in that first partial calendar month shall be paid In advance
on the Rent Commencement Date.
(c) Landlord may charge all costs and expenses of providing the Marketing Service in any calendar year
against the budget therefor. Said costs and expenses may include without limitation the following:
(I) the services of a marketing director and all staff and outside consultants (including professional
marketing service organization) deemed necessary by Landlord to carry out effectively the marketing and public relations
objective of the Marketing Service, including without limitation all payroll, payroll taxes and employee benefits of any such
director and staff;
(ii) such reasonable amount of space within the Landlord's Building as may be necessary to carry out
the Marketing Se
(III) all
rvice, the rental therefor to be comparable to the rental for similarly sized commercial space; s incurred limitation radio, newspaper, televisioon,tdirect a d Indirect costsgof services, °art work Shopping Cent ?' including without
supplies; and copy, printing, paper, stationary and
(iv) such office equipment, utilities and telephones as may be deemed necessary by the marketing
director. The
marketi
dire and Land ord shall have the so a auuthority to employ and dsclharge themth or either of exclusive thm control
ad the staff foof ithe of to dlord,
(e) Notwithstanding the apportionment of amounts to the above-described marketing and advertising funds as
set forth in both this Article 9 and in Section (k) of the Fundamental Lease Provisions, Landlord hereby reserves the right
from time-to-time to allocate the total amount received by Landlord for such funds in any manner whatsoever Landlord, in
its sole discretion, deems appropriate, so long as any and all such funds attributable to said marketing and advertising
funds are used only to defray the cost of the marketing and advertising programs initiated by Landlord and to market,
advertise and promote the Shopping Center.
Section 9.04: DISSOLUTION OF MERCHANTS ASSOCIATION.
In the event there presently exists a merchant's association in use in the Shopping
Landlord shall have the unilateral right to take any steps required to terminate the same aid to Center, Tenant replace such agrees merchants
association with a marketing service, promotion fund, advertising fund, or any other similar entity designated by Landlord In
which event, upon notice to Tenant, Tenant shall automatically be deemed a member thereof and shall contribute to the
same the amount which Tenant immediately prior to such termination was required to contribute to the merchant's
association. Further, Tenant does hereby irrevocably assign to Landlord all of Tenant's voting rights contained in any
bylaw or other similar document forming or governing the administration of any such merchants association.
ARTICLE 10: CONSTRUCTION WORK
Section 10.01: APPROVALS AND STANDARDS.
Tenant shall not perform any construction or make any alterations or changes in or to the Premises at any time
during the Term (herein sometimes collectively called "Construction Work") without Landlord's prior written consent,
except as provided in Section 7.03(e). In no event shall Tenant make or cause to be made any penetration through any
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May 18, 2005 1 Most/JTF 18
I roof, floor or exterior or corridor wall ut the prior written consent of Landlord. WM0
ant shall be directly responsible for
any and all damages, including, without limitation, damages to Landlord's Building, the Premises and the premises of other
tenants in Landlord's Building resulting from any of Tenant's Construction Work, whether or not Landlord's consent
therefor was obtained. Any and all Construction Work which is consented to by Landlord shall be performed in
accordance with (a) plans and specifications prepared by a licensed architect, or engineer and approved in writing by the
Landlord before the commencement of the Construction Work, (b) all necessary governmental approvals and permits,
which approvals and permits Tenant shall obtain at its sole expense, and (c) all applicable laws, rules, regulations and
building codes relating thereto. All Construction Work shall conform to Landlord's Store Design Criteria and shall be
performed in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at
all times be a complete unit except during the period of the Construction Work. Any Construction Work performed by
Tenant without Landlord's consent shall be returned to its original condition at Tenanfi; expense upon request by Landlord.
Tenant shall perform any Construction Work in such a manner as not to obstruct the access to the premises of any other
occupant to the Enclosed Mall nor obstruct other Common Areas.
Section 10.02: INSURANCE AND RECONSTRUCTION.
In the event Tenant shall perform any permitted or required Construction Work, none of the Construction Work
need be insured by Landlord under such insurance as Landlord may carry upon the Landlord's Building nor shall Landlord
be required under any provisions of this Lease relating to reconstruction of the Premises to reconstruct or reinstall any
such Construction Work.
ARTICLE 11: INDEMNITY AND INSURANCE
Section 11.01: TENANT'S INSURANCE.
(a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the
amounts specified and in the form hereinafter provided for:
(i) Commercial General Llablilty Insurance. Commercial general liability insurance covering the
Premises and Tenant's use thereof against claims for "personal and advertising injury" and "bodily injury or death,
"property damage" and "product/completed operations" liability (as the aforesaid terms are defined in such policy)
occurring upon, in or about the Premises and Tenant's activities in the Common Area, such Insurance to afford protection
to the limit of not less than $3,000,000 regardless of the number of persons claiming injuries or damages arising out of any
one occurrence. The Insurance coverage required under this Section 11.01(a)(i) shall, in addition, extend to any IW Aity of
Tenant arising out of the indemnities provided for in Section 11.03. Therefore, such policy shall not contain any exclusion
for contractual liability coverage for any of the foregoing coverages. The general aggregate limits under the liability
insurance policy or policies must apply separately to the Premises and to Tenant's use thereof. The certificate of
insurance evidencing the commercial general liability form of policies shall specify on the face thereof that the limits of
such policies apply separately to the Premises.
(ii) Boilers. Boiler and machinery insurance in adequate amounts on all fired objects and other fired
pressure vessels and systems serving the Premises (If any); and if the said objects and the damage that may be caused
by them or result from them are not covered by Tenant's special form coverage insurance, then such insurance shall be In
an amount not less than $250,000 and be Issued on a replacement cost basis.
Tenant's leaseh(III) improvTenant ement e sheating, eholld Impntilating amend airdcPropeerty. Insurance covering all of the Items Included in
betterments installed by (or demised by this Lease to) Tenant, and all trade fixtures, merchandisethandmproonal pre and
from time to time in, on or upon the Premises, and alterations, additions or char personal properly
10, in an amount not less than one hundred percent (100%) of their full replacement cost f ome time to pursuant to Article
time during e
Term, providing special form coverage, including but not limited to, protection against the perils Included with the standard
state form of fire and broad form extended coverage Insurance policy, together with insurance against sprinkler damage,
vandalism and malicious mischief. Any policy proceeds from such insurance shall be held In trust by Tenant's insurance
company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate under the provisions of Article 12.
(Iv) Workers' Compensation And Employer's Liability. Workers' Compensation and Employers
Liability insurance affording statutory coverage and containing statutory limits with the Employers Liability portion thereof to
have minimum limits of $1,000,000.00.
(v) Business Interruption Insurance. Business Interruption Insurance equal to not less than fifty
percent (50%) of the estimated gross earnings for a period of six (6) months (as defined in the standard state form of
business interruption insurance policy) of Tenant at the Premises which insurance shall be Issued on an "all risks" basis
(or its equivalent).
(b) All policies of insurance provided for in Section 11.01(a) shall be issued by insurance companies with a
financial rating of not less than A VII as rated in the most current available "Best's Insurance Reports", and qualified to
do business in the state in which Landlord's Building is located. Tenant's obligation to provide the insurance coverage 1.01 (
above
shall
not be retention m ntaiinedlby Tenant. Each and every such polite eany xceptfortWorkers' Compensation policy por self loyers Liab Ii
insurance: Liability
(1) shall be issued in the name of Tenant and shall name as an additional insured each of Landlord,
Agent and any other parties in interest from time to time designated in writing by notice from Landlord to Tenant;
(ii) shall be for the mutual and joint benefit and protection of Landlord and Tenant and any such other
parties in interest;
(iii) shall (or a certificate thereof shall) be delivered to each of Landlord and any such other parties in
interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or
terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent;
least thi (iv) shall contain a provision that the insurer will give to Landlord and such other parties in interest at
rty (30) days notice in writing In advance of any material change, cancellation, termination or lapse, or the effective
Sbarm-CapitalCity-Final
May 18, 2005 1 MosviTF 19
Ask
date of any reduction in the amounts of insurance;
(v) shall be written as a primary policy which does not contribute to and is not in excess of coverage
which Landlord may carry; and
(vi) shall contain a provision that Landlord and any such other parties in interest, although named as
an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents
and employees by reason of the negligence of Tenant.
(c) Any insurance provided for in Section 11.01(a) may be maintained by means of a policy or policies of
blanket insurance, covering additional items or locations or insureds, provided, however, that:
(f) Landlord and any other parties in Interest from time to time designated by Landlord to Tenant shall
be named as an additional insured thereunder as its interest may appear;
(if) the coverage afforded Landlord and any such other parties in interest will not be reduced or
diminished by reason of the use of such blanket policy of Insurance;
(111) any such policy or policies [except any covering the risks referred to in Section 11.01(a)(1)] shall
specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying)
the amount of the total insurance allocated to the Tenant's improvements and property more specifically detailed in Section
11.01(axiii); and
(iv) the requirements set forth in this Article 11 are otherwise satisfied.
(d) Tenant agrees to permit Landlord at all reasonable times to Inspect the policies of insurance of Tenant
with respect to.the Premises for which policies or copies thereof are not delivered to Landlord.
(e) Tenant may self insure with respect to the insurance required under subsections 11.01 (a)(11), (iii), and (v)
herein so long as Tenant maintains a net worth of at least $10,000,000.00 at all times during Tenant's self Insurance.
Section 11.02: LANDLORD'S INSURANCE.
(a) Landlord shall at all times during the Term carry and maintain the following types of insurance in the
amounts specified and In the form hereinafter provided for:
(I) Commercial General Liability Insurance. Commercial general liability insurance against claims
for property damage and bodily injury or death, such Insurance to afford protection to the limit of not less than $5,000,000
in respect to property damage, injury or death to any number of persons arising out of any one occurrence.
(11) Landlord's Real and Personal Property. Insurance covering the Landlord's Building [exclusive
of any tenant improvements and betterments and property required to be Insured
11.01(a)(iii)] in an amount not less than one hundred percent (100%) of full rent Tenant pursuant to Section exclusive excavations, foundations and foots placement cost against a the cost of
state form ofs?), from time to time during the Term, providing protection against perils included
within damage, the vandalism standard and malicious mischief, anted coverage other ris reas Landlord ??rom? Insurance
ta time determine and sprinkler with
any such deductibles as Landlord may from time to time determine.
(iii) Rent Insurance. Rent insurance with respect to the premises of the tenants in the Shopping
Center if available at a cost which Landlord in its sole judgment deems reasonable, against loss of rents in an aggregate
amount equal to not more than twenty-four (24) times the sum of (I) the monthly requirement of Minimum Rent of such
tenants, plus (11) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as
Percentage Rent and as Additional Rent pursuant to their leases.
(b) Any insurance provided for in Section 11.02(x) may be maintained by means of a policy or policies of
blanket insurance, covering additional items or locations or insureds provided that the requirements of Section 11.02(a)
are otherwise satisfied.
(c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be
named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the
insurance provided for in this Section 11.02 or otherwise.
Section 11.03: INDEMNIFICATION BY TENANT.
Tenant agrees that Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of
persons or damage to property of Tenant or any other person during the Term, for any cause whatsoever (including
without limitation the acts or omissions of Landlord or Agent, bursting pipes and smoke) by reason of the construction,
use, occupancy or enjoyment of the Premises by Tenant or any person therein or holding under Tenant or happening upon
or about the Premises and Tenant for the purposes of this Section 11.03 shall be deemed to be in exclusive control of the
Premises during the Term. Tenant does hereby agree to and shall protect, defend, indemnify and save harmless Landlord
and Agent from all claims, actions, demands, costs and expenses and liability whatsoever, Including reasonable attorneys
fees, on account of any such real or claimed event, damage or liability, and from all liens, claims and demands arising
from any occurrence in, or about the Premises, or arising out of the construction, use, occupancy or enjoyment of the
Premises, or occasioned in whole or in part by any act or omission of Tenant, its agents, contractors, servants, employees
or invitees, regardless of where occurring. Tenant shall not, however, be liable for damage or injury occasioned (1) in any
case, by the willful act or (ii) by the negligence of the Landlord which Is the cause of damage or Injury unless Tenant is
required by this Lease to assume or Insure against such damage or injury. Landlord will protect, defend, indemnify and
save harmless Tenant from all claims, actions, demands, costs and expenses and all liability whatsoever, including
reasonable attorneys' fees, on account of any real or claimed event, damage or liability, and from all liens, claims and
demands arising from any occurrence in, or about the Common Areas or arising out of the construction, use, occupancy or
enjoyment of the Common Areas or occasioned in whole or in art contractors, servants or employees therein. Landlord shall not, however, e liablecfor damage or i jury ?occasioned by the
gross negligence or willful act or omission of the Tenant which is the cause of damage or injury.
Section 11.04: MUTUAL WAIVERS.
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May 18, 2005 1 M09VJTF 20
Landlord and Tenant hereby 2ve any rights each may have against the of on account of
occasioned to Landlord or Tenant, as the case may be, their respective any loss or damage
property, of Landlord's Building, arising from any risk covered by special form coverage insurance, and to he extenthof
recovery under valid and collectible policies of such insurance, provided that such waiver does not invalidate such policies
or prohibit recovery thereunder. The parties hereto each, on behalf of their respective insurance companies insuring the
property of either Landlord or Tenant against any such loss, waive any right of subrogation that such insurers may have
against Landlord or Tenant, as the case may be.
Section 11.08: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS.
Subject to Landlord's obligations in Section 13.01 to maintain the structure of the Premises, Tenant agrees at its
own expense to comply with all Governmental Requirements as well as the recommendations and requirements, with
respect to the Premises, or its use or occupancy, of the insurance underwriters or insurance rating bureau or any similar
public or private body and any governmental authority having jurisdiction with respect to the use or occupancy of
Landlord's Building, including, but not limited to, installation of fire extinguishers or automatic detection, suppression
systems and/or life-safety systems, any changes, modifications or alterations in the detection and/or suppression systems
or additional detectors and/or sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premises.
Landlord shall not materially change the dimensions of the Premises or materially affect access to the Premises from the
Landlord's Building unless required to make any such changes by reason of any federal, state or local environmental or
other law, rule, regulation, guideline, judgment or order.
Section 11.06: EFFECT ON LANDLORD'S INSURANCE.
Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything in, upon or about he Premises
which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent
Landlord from procuring such policies in companies acceptable to Landlord at regular rates or which will in any way cause
an increase In the Insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in
the first sentence of this Section 11.06, Landlord may, upon ten (10) days written notice to Tenant (except In an
emergency), correct the same at Tenant's expense. Tenant shall pay to Landlord as Additional Rent forthwith upon
demand the amount of any increase in the premiums for insurance resulting from any violation of the first sentence of his
Section 11.06, even If Landlord shall have consented to the doing of or the keeping of anything on he Premises which
constituted such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of the
first sentence of this Section 11.06).
Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY.
Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying space adjoining he Premises or any other part of he Shopping Center or
Landlord's Building, or for any loss or damage resulting to he Tenant or its property from bursting, stoppage or leaking of
water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property within the Premises from any
cause whatsoever. Such limitation of responsibility and liability shall not, however, apply to Landlord's (t) willful acts or (11)
negligence, except to the extent such are waived or released by Tenant pursuant to Sections 11.03 or 11.04.
ARTICLE 12: DAMAGE OR DESTRUCTION
Section 12.01: LANDLORD'S DUTY TO RECONSTRUCT.
In the event the Landlord's Building is damaged or destroyed by any of the risks referred to in Section 11.02(aMil)
against which Landlord is obligated to procure Insurance, Landlord shall (subject to being able to obtain all necessary
permits and approvals therefor; including without limitation Permits and administering environmental laws, rules or regulations), within one hu drrepdprtwentyr( 2p days after suchndamage or or body
destruction (unless Landlord terminates this Lease pursuant to Section 12.03), commence to: (a) repair or reconstruct
Landlord's Building and (b) repair or reconstruct the structural floor slab, demising wall studs (without drywall) and roof (or
floor slab above) as the case may be of the Premises. Landlord shall
no event shall Landlord be liable for interruption to Tenant's business orfor damagel to or repairdollrreer?structctionlo ion.
of
those things which Tenant Is required to Insure pursuant to Section 11.01(axili), nor shall Landlord be required to expend
more for any repair or reconstruction pursuant to this Section than the amount of insurance proceeds actually received by
Landlord in connection herewith plus the deductible amount under Landlord's policy.
Section 12.02: TENANT'S DUTY TO RECONSTRUCT.
If any item which Tenant is required to insure pursuant to Section 11.01(a)(iii) is damaged or destroyed by fire or
other casualty, Tenant shall (subject to being able to obtain all necessary permits and approvals therefor, including without
limitation permits and approvals required from any agency or body administering environmental laws, rules and
regulations), within fifteen (15) days after Landlord has substantially repaired or reconstructed Landlord's Building and the
portion of the Premises Landlord is obligated to repair or reconstruct pursuant to Section 12.01 (unless Landlord
terminates this Lease pursuant to Section 12.03), commence to repair or reconstruct such damaged or destroyed items to
at least substantially the same condition in which they were prior to such damage or destruction and prosecute the same
diligently to completion. In the event of any substantial damage or destruction to the Premises during the last three (3)
Years of the Term, Tenant shall have the option to terminate this Lease upon giving written notice to Landlord to exercise
thereof within sixty (60) days after the date of such damage or destruction; provided, however, that Tenant shall tender to
Landlord the insurance proceeds received by Tenant to restore or replace all damage or destruction leasehold
improvements and HVAC equipment in the Premises.
Section 12.03: LANDLORD'S RIGHT TO TERMINATE.
(a) Landlord shall have the option to terminate this Lease upon giving written notice to Tenant of the exercise
thereof within one hundred twenty (120) days after the Landlord's Building is damaged or destroyed If.
Sbarro-CapitalC*Final
May 18,2005 \ Most/JTF
21
i
() the Premises are rendered wholly unfit for carrying on the Tenant's business after damage to or
destruction thereof from any cause; or
00 Landlord's Building is damaged or destroyed as a result of any flood, earthquake, act of war,
nuclear reaction, nuclear radiation or radioactive contamination, or from any other risk not covered by insurance which
Landlord is obligated to procure pursuant to Section 11.02(a)(ii); or
(iii) any damage to or destruction of Landlord's Building occurs within the last three (3) Years of the
Term or in any Partial Year at the end of the Term; or
(iv) fifty percent (50%) or more of the GLA in the Landlord's Building immediately prior to the damage
or destruction is rendered unfit for carrying on business therein; or
(v) Landlord's Building Is so substantially damaged that it Is reasonably necessary, In Landlord's
judgment, to demolish the same for the purpose of reconstruction; and provided Landlord simultaneously cancels the
Tenant's Leases on either side of Tenant or immediately adjacent to Tenant If such premises are also damaged or
destroyed.
The rights of Landlord under subsection 12.03(a)(111) shall be mutual to Tenant, provided Tenant elects to execute
its right of termination within thirty (30) days after the date of such casualty.
(b) Unless so terminated, this Lease shall continue in full force and effect, and Landlord and Tenant shall
perform their respective obligations under Section 12.01 and 12.02. Upon any termination of this Lease under any of the
provisions of this Section 12.03. the Rent shall be adjusted as of the date of such termination and the parties shall be
released from all liability hereunder upon the surrender of possession of the Premises to the Landlord, except for items
which have been theretofore accrued and are then unpaid.
Section 12.04: ABATEMENT OF RENT.
If this Lease is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the Landlord's
Building, and if the premises are rendered wholly or partially unfit for carrying on Tenant's business by such damage or
destruction, then the Minimum Rent and the Additional Rent payable by Tenant under this Lease shall be abated, and the
applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced In direct proportion to the
percentage of the GLA in the Premises which Is rendered unfit for that period from the date the Premises are so rendered
unfit until the earlier of sixty (60) days after Landlord re-delivers tenantable possession of the Premises to Tenant or the
date Tenant reopens for business.
ARTICLE 13: MAINTENANCE OF PREMISES
Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE.
Landlord will keep the roof, exterior face of service corridor wails, walls
structural columns and structural floor or floors
which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other spelo floori??
dal
installed at the request of Tenant, doors, windows and glass) in good repair subject to the provision of Article 13.
Notwithstanding the foregoing provisions of this Section 13.01, Landlord shall not in any way be liable to Tenant unless
Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord falls to commence making
such repairs within a reasonable period thereafter, and provided that any damage necessitating such repairs shall not have
been caused by the omission, negligence or willful act of Tenant, its concessionaires Invitees employees,
licensees or contractors or by the failure of Tenant to perform any of its obligations under this Leas
e (in either of which
events Tenant shall be responsible therefor) or have been caused to any of the items Tenant is required to insure pursuant
to Article 11. Landlord shall be under no liability for repair, maintenance, alteration, improvement, reconstruction, renewal
or any other action with respect to the Premises or any part thereof, or any plumbing, electrical, heating, ventilating, air
conditioning, or other mechanical installation therein, except as may be expressly set forth In this Lease.
Section 13.02: TENANTS DUTY TO MAINTAIN PREMISES.
Tenant will at all times, from and after delivery of
expense, maintain and make all needed repairs, and o all othssession er work of or forrrthe?PPrremto Tenant, at Its
ises and every own cost and
render the same in good and tenantable condition. Tenant's obligation under this Part thereof to
Section limited to, repairing, replacing and otherwise maintaining items as are r uired y an 1 ve shall Include, but not be
jurisdiction thereof (whether the same is ordi by any governmental agency having
Landlord under Section 13.01), walls (other than the exterior face of service foreseen ?) ceilings dpplate glass, utility
meters, pipes and conduits outside the Premises which are installed by or demised to Tenant or which exclusively serve
the
Tenant ises
any all i hee Such hheating ventilating ng, ventilating and air
and condi di ng equipment Installed by or demised to or used solely by
the ceiling and the roof or on the roof of Landlord's Building), equipment
equipment located snide the Premises, between
Premises, the storefront or storefronts, all of Tenant's signs curly grilles equipment and other equipment within the
devices, and all window sash, casement or frames, doors and doooorfres provided hat Tenantshallnm ke ino
adjustment, alteration or repair of any part of any sprinkler, life safety or other detection or suppression system in or
serving the Premises without Landlord's prior approval. Tenant shall permit no waste, damage or Injury to the Premises
and Tenant shall Initiate and carry out a program of regular repair and other maintenance of the Premises, including the
painting or refinishing of all areas of the interior and the storefront as approved by Landlord, so as to impede, to the extent
possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the
electrical wiring or other systems serving the Premises or within the Premises, and will install at Its expense, but only after
obtaining Landlord's written approval, any additional electrical wiring or other Items which may be required in connection
with Tenant's apparatus.
Section 13.03: RIGHT TO ACCESS TO THE PREMISES.
Landlord and its authorized representative may enter the Premises at any and all times during usual business
hours upon forty-eight (48) hours prior written notice to Tenant for the purpose of inspecting the same (and at all other
Sbarro-CapitalCity-Final
May 18, 2005 1 Most1JTF
22
times in the case of emergency). Tenant further agrees that Landlord may from 3,. a to time
go upon the Promises and
make any additions, alterations, repairs or replacements and do other work to the Premises or to any utilities, ystems or
equipment located in, above or under the Premises which Landlord may deem necessary or desirable to comply with all
governmental requirements and/or recommendations of an insurance rating bureau or of any similar public or private body
or that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the Premises If the
Tenant does not make or cause such additions, alterations, repairs or other work to be made or performed promptly after
receipt of written demand from Landlord. Nothing herein contained shall imply any duty on the part of Landlord to do any
such work which under any provision of this Lease that Tenant may be required to do, nor shall it constitute a waiver of
Tenant's default in failing to do the same. In the event Landlord performs or causes any such work to be performed,
Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand therefor. In addition, Landlord may install,
use, repair or replace any and all materials, tools and equipment, and pipes, ducts, conduits, columns, foundations,
footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building,
above the drop ceiling, within enclosed columns, under the floor or through the non-safes area, that Landlord deems
desirable therefor, without the same constituting an actual or constructive eviction of Tenant. Landlord may also enter the
Premises at all times during usual business hours for the purpose of showing the Premises to prospective
mortgagees and tenants provided Landlord shall use reasonable efforts not to interfere with Tenants s N
exercise by Landlord of any rights provided in Section 13.01 or 13.03 shall entitle Tenant to any damage for any
inconvenience, disturbance, loss of business or other damage to Tenant occasioned thereby nor to any abatement of
Rent.
Section 13.04: CONFLICTS.
To the extent, if any, that there may be any conflict between this Article 13 and Article 12, or between this Article
13 and Article 22, Article 12, if applicable, or Article 22, if applicable, shall prevail.
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01: TENANT'S PROPERTY; REMOVAL.
Any trade fixtures, equipment, apparatus, decorative lighting, signs, counters, shelving, Inventory, showcases,
mirrors, and other personal property of Tenant not permanently affixed to the Premises shall remain the property of
Tenant. Tenant shall have the right, provided Tenant Is not in default under this Lease, at any time and from time to time
during the Term, to remove any and all of its personal property which it may have stored or installed In the Premises. If
Tenant is in default under this Lease, Landlord shall have the right to take exclusive possession of such property and to
use such property without rent or charge, and Landlord, whether or not it takes possession of such property, shall have the
benefit of any lien thereon permitted under the laws of the state in which Landlord's Building is located and, if such
possession is taken or such lien is asserted by Landlord in any manner, including but not limited to operation of law,
Tenant shall not remove or permit the removal of said trade fixtures, signs or other personal properly until such possession
is relinquished or the lien is removed, as the case may be. Nothing in this Article shall be deemed or construed to permit
or allow Tenant to remove any of such personal property prior to the end of the Term without the immediate replacement
thereof with similar personal property of comparable or better quality, or otherwise render the Premises unsuitable for the
continued conduct of Tenant's permitted use thereof. Tenant at its expense shall immediately repair and otherwise make
good any damage occasioned to the Premises or Shopping Center by reason of Installation or removal of any such
personal property unless such damage is caused by Landlord pursuant to Section 13.03 and if Tenant fails to remove such
items from the Premises prior to such expiration or termination, or if this Lease is terminated by Landlord and Tenant fails
to remove such items from the Premises prior to the effective date of such termination, then in any such event all such
personal property shall thereupon become the properly of Landlord, without further act b either ereto, unless
Landlord elects to require all or a portion of such items to be removed by Tenant in which case Tep ant sh hall promptly
remove the items designated by Landlord and restore the Premises to its prior condition at Tenant's expense. Provided
Tenant is not in default, Landlord agrees to subordinate its lien on items of personal property of Tenant to the lien of a
purchase money chattel mortgagee or any Institution providing financing, provided Landlord is provided with a detailed list
of the personal property subject to said mortgage or refinancing, and further provided that such mortgagee or institution
agrees to remove such personal property prior to the expiration or earlier termination of this Lease and to repair any
damage to the Premises which may be caused by their removal of any such personal property.
Section 14.02: IMPROVEMENTS TO PREMISES.
All improvements made to the Premises by Tenant, including, but not limited to, the items fumished pursuant to
Tenant's Work, alterations, changes and additions by Tenant, light fixtures, floor coverings and ventilating and air-conditioning equipment, mechanical and plumbing equipment, but excluding tradepfi ul essand signs
and other personal property specified in Section 14.01, shall become the property of Landlord upon expiration or earlier
termination of this Lease.
ARTICLE 1S: ASSIGNMENT AND SUBLETTING
Section 15.01: PROHIBITED.
Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not
transfer, assign, sublet, enter Into license or concession or other occupancy or use agreements or mortgage or
hypothecate this Lease or the Tenant's Interest In and to the Lease or the Premises or any part thereof (herein collectively
referred to as 'Transfer") without first obtaining in each and every instan Landlord may withhold in its sole discretion. Any attempted Transfer without such prior written consent of Landlord which
of Default, shall not be binding upon Landlord, shall confer no rights upon any third?? written consent shall be an Event
its obligations under this Lease. Any transfer b mer
be consolidation, person and shall not relieve Tenant of
including, but not limited to, an assignment for the benefttof crers, asawell asoaney transfer, as ignment, o
hypothecation of any stock or general partnership interest in Tenant so as to result In a change of the control thereof, shall
be included in the term "Transfer" for the purposes of this Lease and shall be a violation of this Section 15.01 and an
Sbarro-CapitalCity-Final
May 18, 2005 1 MosUJTF 23
Event of Default, except as otherwise specifically set forth in this Article 15. Consen y Landlord to any Transfer
constitute a waiver of the necessity for such consent to any subsequent Transfer. In the event of a muted shall not
Transfer,
Tenant agrees nevertheless to and shall remain fully liable for the full performance of each and every obligation e u
nder this
Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of
the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the
"Request Notice") requesting Landlord's consent to he proposed Transfer at least thirty (30) days prior to the date on
which, with Landlord's prior written consent, he Transfer would be effective. The Request Notice shall contain, without
limitation, at least: (1) the full Identification of the proposed transferee; (ii) the most recent financial statements and other
evidence of the transferee's financial responsibility and business performance; (iii) he transferee's proposed specific use
and business proposed to be conducted at the Premises; (iv) he scope of any proposed alterations to the storefront of and
within the Premises; and (v) he monetary and non-monetary terms and conditions of he proposed Transfer. Landlord
shall have the right and option (he "Take-back Option"), exercisable by Landlord giving Tenant written notice within thirty
(30) days after Landlord's receipt of he Request Notice of reacquiring the Premises or portion hereof which Is he subject
of the proposed Transfer and terminating his Lease with respect hereto. If Landlord elects not to exercise he Take-back
Option and elects to give Landlord's written consent to he proposed Transfer, then Tenant shall pay to Landlord forthwith
upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lump sum payment or
otherwise) received by Tenant in any month as a result of the Transfer whether denominated rentals or otherwise which
exceed, in the aggregate, the total sums which Tenant Is obligated to pay and does pay Landlord under this Lease in he
same month (prorated to reflect obligations allocable to that portion of he Premises which is the subject of the Transfer),
all without affecting or reducing any other obligation of Tenant hereunder provided, that in the case of an assignment of
this Lease such Additional Rent payment by Tenant to Landlord shall equal he entire consideration for such assignment.
If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer is not made (including without
limitation, delivery of possession by Tenant to and occupancy by the proposed transferee approved by Landlord) within
thirty (30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent
and the Transfer shall be automatically null, void and of no force or effect whatsoever. The Take-back Option shall not be
exhausted by any one exercise thereof by Landlord but shall be exercisable from time to time and as often as thee is a
proposed Transfer. The Take-back Option may be exercised by any assignee of Landlord's right, title and interest in his
Lease or any other person which at the time of the Request Notice Is Landlord under his Lease. If after receipt of the
Request Notice Landlord requests additional or further Information which Landlord reasonably requires to consider the
proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request therefor and he period for
Landlord to exercise the Takeback Option shall be extended by the number of days between Landlord's request for and
Landlord's receipt of such additional or further information. Tenant shall pay to Landlord he sum of Five Hundred
($500.00) Dollars to defray Landlord's administrative costs, overhead and counsel fees in connection with the
consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the
time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor.
Provided Landlord does not exercise the Take-back Option, Landlord agrees not to unreasonably withhold its
approval to Tenant's assignment of this Lease or subletting he entire Premises. Without limiting the factors, criteria or circums
may un easotnabesfordLaer which ndlord ito reasonable for Landlord
withhold its
criteria not be
sfer if any of he following shall
circumstances are not satisfied:
or
1. The net worth of the proposed assignee, as determined by a current audited financial statement prepared
by a certified public accountant, shows a net worth and working capital in amounts determined by Landlord to be sufficient
to assure the future performance by such assignee of its obligation under this Lease;
2. The character, business reputation and managerial skills of the assignee or subtenant are at least equal to
Tenant's;
3. The assignee or subtenant, in centers of comparable size to the Shopping Center, shall have substantial
retailing experience in the sale of merchandise permitted to be sold from the Premises as specified in the paragraph of the
Fundamental Lease Provisions captioned "Use";
4. The quality of merchandise sold from the Premises after the assignment or sublease will be the same as
prior thereto; ansferee
sha
l not
an existing tenant In Landlo's tenant and is n tinegotiating with Landlord (lor has not negotiated with Landlord inn the last sixr(6) months) ior space In
Landlord's Building;
6. The transferee shall have positive annual earnings in each of its last two fiscal years;
7. In the case of a sublease, the rental to be paid by the subtenant shall not be less than Landlord's
prevailing rental rate per square foot for the Premises.
In addition to the foregoing, it shall not be unreasonable for Landlord to withhold such consent if Landlord's
mortgage lender fails to give its consent to such assignment or subletting.
In no even
shall
dlord
Tenant
for Tenant or any suchtass gneenor s btenantas to
result of Landlord's damages failure to consent to Ten nt's proposed assisuffered gnment or
sublease.
ARTICLE 16: DEFAULTS BY TENANT
Section 16.01: EVENTS OF DEFAULT.
This Lease is made upon he condition that Tenant shall punctually and faithfully perform and fulfill all of the
covenants, conditions and agreements by it to be performed as in this Lease set forth. In addition to events elsewhere
Sbarro-CapitalCity-Final
May 18, 2005 1 MosVJTF 24
stated in this Lease as Events of De It, the following shall be deemed to be at-vent of Default each
sometimes referred to as an "Event of Default" in this Lease): ( of which is
(a) the failure by the Tenant to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any
installment or year-end adjustment thereof if such failure continues for ten (10) days after written notice thereof by
Landlord to Tenant; or
(b) the failure of Tenant to submit its Design Drawings on or before the Design Drawings Submission Date In
accordance with Section 2.03(c) or commence Tenant's Work on or before the Construction Commencement Date in
accordance with the terms and conditions of Section 2.03(c) within fifteen (15) days after written notice to Tenant of such
failure; or
(c) the failure of Tenant to open its business to the public in the Premises on or prior to the date on which
Tenant is required to open its business to the public pursuant to the terms and conditions of Section 2.04, or the failure to
open the Premises, or to keep the Premises open, on the days and hours required by this Lease, or if Tenant vacates or
abandons the Premises; or
(d) the failure of Tenant to observe or perform any of the covenants, terms or conditions set forth in Article 15
(relating to assignment and subletting); or the
sale or
moval which is (outside the ordinary course of T nantts btan usineso n of Tenant's property located in the Premises In a manner
(f) the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7
hereof; or
(g) repetition or continuation of any failure to timely pay any Minimum Rent and/or Percentage Rent and/or
Additional Rent or other sums reserved hereunder or to timely report Gross Sales as provided in Section 4.06 hereof
where such failure shall continue or be repeated for two (2) consecutive months, or for a total of three (3) months in any
period of twelve consecutive months; or
(h) repetition of any failure to observe or perform any of the Lease covenants, terms or conditions more than
three (3) times, in the aggregate, In any period of twelve (12) consecutive months; or
(I) any other failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth
in this Lease where said failure continues for a period of thirty (30) days after written notice thereof from Landlord to
Tenant (unless such failure cannot reasonably be cured within thirty (30) days and Tenant shall have commenced to cure
said failure within thirty (30) days and continues diligently to pursue the curing of the same until completed); or
G) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor (hereafter
defined) or a substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution, attachment or
other process of law upon, on or against the estate created in Tenant hereby, the application for or the appointment of a
liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or
for all or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty
(30) days); the insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or
Guarantor for the benefit of creditors; or
(k) the commencement of a case by or against Tenant or Guarantor, under any insolvency, bankruptcy,
creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by the Tenant or Guarantor to
request relief under any insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor
rehabilitation laws, state or federal, and in no event shall the Premises or Tenant's interest in this Lease become an asset
in any such proceedings; or
(I) notwithstanding the Tenant's obligation to pay Minimum Rent and/or Percentage Rent and/or Additional
Rent as of the first day of each month during the Term, In the event that an insolvency, bankruptcy or similar proceeding Is
filed by or against the Tenant or any Guarantor, the Tenant shall be obligated to pay all such Minimum Rent and/or
Percentage Rent and/or Additional Rent on a ratable basis from the date of the commencement of any such proceeding
through the end of the month in which such proceeding is commenced.
Section 16.02: LANDLORD'S REMEDIES.
(a) Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to Insist
upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein
shall not be deemed a waiver or relinquishment for the future of such performance, right or remedy. In addition to any and l other
rem
es of
Landlord
s Lease
or in
rovid
the alnd remedies if the a shiall occur an Eventrof Defauor at
none of which sh ll be construed es an el lectioneto forego any rights
other remedies then or in the future: ego any of the
(I) accelerate the whole balance of Rent, and all other sums payable hereunder by Tenant, for the
entire balance of the Term, or any part of such Rent and other sums; and/or
(ii) to terminate this Lease, and to re-enter the Premises and take possession thereof and to remove
all persons and contents therefrom, and Tenant shall have no further claim or right hereunder; and/or
(III) to bring suit for the collection of Rent and for damages without entering into possession of the
Premises or terminating this Lease; and/or Tenant
right
otherw without terminating this Lease. i Intthe event of an rofepossession of the
and termination des by summary proceedings a the right
but not the obligation to remove any personal property from the Premises and either treat session,
u such prolord shall have the right
at Landlord's option, place the same In storage at a public warehouse at the sole cost, expense nd risk of the
and/or
Tenant;
(v) to enter the Premises and without further demand or notice proceed to distress and sale of the
Sbarro.CapitalCity-Final
May 18, 2005 1 Most/JTF 26
goods, chattels, personal properly and' other contents there found and to levy the a , and Tenant shall a
officers' commissions, including watchmen's wages and sums cargeable by Landlord, and further includ all ing cos charges
which Landlord may Impose by statute as commissions to the constable or other person making the levy, and In such
cases all costs, officers' commissions and other charges shall immediately attach and become part of the claim of
Landlord for Rent, and any tender of Rent without said costs, commissions and charges made, after the issuance of a
warrant of distress, shall not be sufficient to satisfy the claim of Landlord.
(b) Confession of Judgment - Ren Deleted.
(c) Confession of Judgment - Possesslon Deleted.
(d) Deleted.
(e) Tenant expressly waives:
(1) The benefit of all laws, now or hereinafter in force, exempting any goods in the Premises or
elsewhere from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease. which the goods upon (which, or the time withinawhici distress sr to made ahereafter be made fter to remove regarding any limitation rt tr
relieves Landlord of the obligation of proving or identifying such goods; it being the goods, and Tenant further
purpose and intent of this provision that
all goods of Tenant whether upon the Premises or not, shall be liable to distress for rent.
(ill) The right to Issue a writ of replevin for the recovery of any goods seized under a distress for Rent
or levy upon an execution for Rent, damages or otherwise.
(iv) The right to delay execution on any real estate that may be levied upon to collect any amount
which may become due under the terms and conditions of this Lease and any right to have the same appraised.
(v) All rights under Act of April 5, 1957, No 20 and all supplements and amendments thereto, hereby
authorizing the sale of any goods distrained for rent at any time after seven (7) days from said distraint without any
appraisement and condemnation thereof.
(vi) The right to three (3) months and/or fifteen (15) or thirty (30) days' notice required under certain
circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of
summary proceedings or an action for possession or to the termination of this Lease or any retaking of possession, Tenant
hereby agreeing that the respective notice periods provided for in this Lease shall be sufficient in any such case.
(vil) Landlord shall use reasonable efforts to relet the Premises so as to mitigate damages.
Section 16.03: DAMAGES.
(a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this
Lease, Landlord may relt the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
terms and conditions as Landlord shall reasonably deem appropriate (which may be less than or exceed the balance of to
Term), and to the extent Landlord receives the Rent therefor, Landlord shall apply the same first to the payment of such
reasonable expenses as Landlord may have incurred in recovering possession of the Premises includi
limitation, legal expenses and reasonable attorneys' fees) and for putting the Premises Into ( ng' without
repairing or remodeling or altering the same for reletti good order and condition and
ng, and any ion with the rung expenses, commissions and ,
assumed or incurred by or on behalf of Landlord in connect
of the Premises collectiv charges tso
Reletting"), and then to the fulfillment of the covenants of Tenant under this Lease. Tenant salt "Cosh of
pay
up to the time of such termination of Tenant's right to possession under this Lease, and thereafter, er, Tenant Landlord settoo
pay Landlord until the end of the Term of this Lease the equivalent of the amount of Rent under this Lease less the net
avails of such reletting, if any, during the same period, and the same shall be due and payable by Tenant to Landlord on
the dates such Rent Is due under this Lease. Any reletting by Landlord shall not be construed as an election on the part of
the Landlord to terminate this Lease unless a notice of such Intention is given by Landlord to Tenant. Notwithstanding any
reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event,
Landlord shall not be liable for Tenant sail not be entitled to any Rent received by Landlord In excess of Rent provided for
in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time,
and no suit or recovery of any portion due Landlord hereunder shall be a defense to any subsequent action brought for any
amount not theretofore reduced to judgment in favor of Landlord.
(b) If Landlord elects to terminate this Lease instead of terminating only Tenant's right to possession,
Landlord shall have the right to immediately recover against Tenant as damages for loss of the bargain, and not as a
penalty, the excess (if any), as reasonably determined by Landlord, of (1) the present value of the projected Rent payable
by Tenant under this Lease (as determined by Landlord on the basis of the amounts of Additional Rent which would have
been payable pursuant to this Lease for the full calendar year prior to the calendar year in which the default occurred,
increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per annum) that would
have accrued for the balance of the Term plus any other amount necessary to compensate Landlord for all detriments
proximately caused by Tenant's failure to perform its obligations under this Lease, including reasonable attorneys fees and
interest on all sums due Landlord at the Default Rate (hereafter defined), less (ii) the tan present fair market rental value
of the Premises for the balance of the Term as reasonably determined by Landlord, taking into account among other
things, the condition of the Premises, market conditions and the period of time the Premises may remain vacant before
landlord is able to relet the same to a suitable replacement tenant, and the Costs of Reletting (as defined above) that
Landlord may incur in order to enter into a replacement lease ("Benefit of the Bargain Damages").
anything to the contrary contained In this Lease, W, subsequent to the termination of this Lese and he?reco eryl off
damages from Tenant pursuant to this subsection (b), Landlord relets the Premises for an effective Rent higher or lower
than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain
Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such reletting. over the PNC Bank PhiladThe " elphia, PennsylRate" vania an means the rate of
any successor Interest which Is
thereto or othebank percent by Landlord. prime rate of
Section 16.04: LANDLORD'S SELF-HELP.
Sbarro-CapitalChy-Final
May 18, 2005 1 Most/JTF
26
In addition to Landlord's rights o self-help set forth elsewhere in this Leas , Tenant at any time falls to perform
'ak
any of its obligations under this Lease (excluding those obligations pertaining to the actual operation of Tenant's business)
in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant at
least ten (10) business days prior written notice of its election to do so (in the event of any emergency no prior notice shall
be required) to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform
such obligations. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional
Rent, forthwith, upon demand therefor, with interest thereon from the date Landlord performs such work at the Default
Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom.
Section 16.05: LEGAL EXPENSES.
(a) In the event that Landlord should retain counsel and/or institute any suit against Tenant for violation of or
to enforce any of the covenants or conditions of this Lease, or should Tenant lnstitute any action against Landlord for
violation of any covenants or conditions of this Lease, or should either party institute a suit against the other for a
declaration of rights hereunder, or should either party intervene in any suit in which the other Is a party, to enforce or
protect its interests or rights hereunder, the prevailing party in any such suit shall be entitled to all its costs, expenses and
reasonable fees to its attorney(s) In connection therewith.
(b) In the event that a bankruptcy proceeding is filed by or against Tenant under any chapter of the
Bankruptcy Code, or Tenant makes an assignment for the benefit of creditors or commences or otherwise becomes the
subject of any insolvency, receivership or similar proceeding, Landlord shall be entitled to recover its reasonable attorneys'
fees and costs incurred in or in connection with any such proceeding from Tenant or any trustee, custodian, receiver,
othassignee
sums due anrepresentative or thisne a ei(I j) ( an obligation of which Tenant sheand reundeer and (11) all coconstitute, mponent In
any cure claim
assertable by Landlord under 11 U.S.C. § 385(b) of otherwise.
ARTICLE 17: LIABILITY OF LANDLORD
Section 17.01: LANDLORD'S DEFAULT.
Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails to
perform any of its obligations hereunder and said failure continues for a period of th (
thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Lanndlloordnshhaallll
have commenced to cure said failure within said thirty (30) days and continues diligently to pursue the curing of the same).
If Landlord shall be in default under this Lease and, if, as a consequence of such default, Tenant shall recover a money
judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right, title and interest of Landlord in the Shopping Center as the same may
then be encumbered and Landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy
execution against any property of Landlord other than Landlord's right, title and Interest in the Shopping Center as
hereinbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this
Lease.
Section 17.02: TRANSFER OF LANDLORD'S INTEREST.
In the event of the sale or other transfer of Landlord's right, tide and Interest in the Premises or the Shopping
Center (except in the case of a sale-leaseback financing transaction in which Landlord is the lessee), Landlord shall
transfer and assign to such purchaser or transferee any portion of the Security
Landlord pursuant to Section 2.02 of this Lease, and Landlord thereupon and withut further acct b either then be hekf by party
hereto be released from all liability and obligations hereunder derived from this Lease arising out of any act, occurrnn ehor
omission relating to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant shall
have no right to terminate this Lease nor to abate Rent nor to deduct from nor set-off nor counterclaim against Rent
because of any sale or transfer (including without limitation any sale-leaseback) by Landlord or Its grantees, successors or
assigns. Neither Landlord's mortgagee (or its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant
for the return of Tenant's Security Deposit unless and until Landlord actually delivers the Security Deposit to such
mortgagee or purchaser or their designee.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 18.01: SUBORDINATION OF LEASE.
Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be, subject and subordinate to
any lease wherein Landlord is the lessee and to the lien of any or all mortgages or deeds of trust, regardless of whether
such lease, mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part
Shopping Center, and to any and all advances to be made thereunder, and to the interest ereon, and all od cations,
consolidations, renewals, replacements and extensions thereof. Such subordination shall be effective without the
execution of any further instrument. Tenant also agrees that any lessor, mortgagee or trustee may elect to have this
Lease prior to any lease or lien of its mortgage or deed of trust, and in the event of such election and upon notification by
such lessor, mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said lease,
mortgage or deed of trust, whether this Lease Is dated prior to or subsequent to the date of said lease, mortgage or deed
of trust.
Section 18.02: TENANTS ATTORNMENT.
In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed of trust referred
to In Section 18.01 covering the Premises or in the event of the termination of any lease referred to in Section 18.01
wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attom to and recognize the purchaser
or Landlord's lessor as Landlord under this Lease. Tenant's attornment shall be subject to the purchaser or assignee
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May 18, 2005 1 MosVJTF 27
recognizing the validity and continuan of this Lease and agreeing not to distu enanfs
possession
under accordance the with terms of the this Lease provisions of so this long as Lease). Tenant shall not be In default (subject to Tenant's rig th to cure any default In
in
Section 18.03: INSTRUMENTS TO CARRY OUT INTENT.
Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Tenant shall execute
and deliver whatever reasonable instruments may be reasonably required for such purposes and to carry out the intent of
this Article 18, and in the event Tenant falls to do so within twenty (20) days after demand in writing, Tenant shall be
deemed to have committed an Event of Default.
Any document executed by Tenant evidencing such subordination shall provide that Landlord's mortgagee or such
purchaser shall not be liable for any action or omission of any prior landlord (including Landlord) under to Lease, subject
to any off sets, claims or defenses which Tenant might have against prior landlord (including Landlord), bound by any Rent
which Tenant might have paid for more than the current month to any
amendment or modification of the Lease or any other agreement concrninprior gg Ida Lase maduei?Landlord), bound written any
consent or responsible in any way for any security deposit which was delivered to Landlord but was not subsequently
delivered to such mortgagee or purchaser.
ARTICLE 19: ESTOPPEL CERTIFICATES
Section 19.01: TENANTS AGREEMENT TO DELIVER.
From time to time within twenty (20) days after request in writing therefor from Landlord, Tenant agrees to execute
and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and Landlord and any such
addressee may rely thereon), a statement in writing in form and substance reasonably satisfactory to Landlord (herein
called 'Tenant's Estoppel Certificate"), certifying as to such matters as may be reasonably requested by Landlord.
Tenant expressly agrees that Landlord may assign Its Interest in the Tenant's Estoppel Certificate to its lender(s) at any
time who may act in material reliance thereon.
Section 19.02: FAILURE OF TENANT TO PROVIDE. to rovide a Tenant's written requestevent
therefor, Ten nt s all be deemed to have committtoeddaan Evenrtttoof Deffann minty (20) days after Landlord's
ARTICLE 20: QUIET ENJOYMENT
Section 20.01: FAITHFUL PERFORMANCE.
Upon Payment by the Tenant of the Rent herein provide
d for, and upon to observance and performance of all of
the agreements, covenants, terms and conditions on Tenant's
part Perform,
and quietly hold and enjoy to Premises for the Term to be observed ands Tenant shall peaces
persons lawfully or equitably claiming by, through or und?eerr Landlob subject Interruption by odm??s a other person s Of
this Lease, and mortgages, leases and other matters to which this Lease is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21.01: DELIVERY AFTER TERM.
terminat ena the all deliver u clean nd surre ender to Landlord possession of the Premises upon the expiration or earlier
of Term, Section 14.01 (excepting as may be Landlord's obligationounder thiscLease dam stets of repair and in compliance with
tea ar and
r), and shall deliver the keys to the management office of Landlord or to such other plac eas mty' ay be el ry we
designated from
time to time by notice from Landlord to Tenant. If not sooner terminated as herein provided, this Lease shall terminate at
the end of the Term as provided for in Article 3 without the necessity of notice from either Landlord or Tenant to terminate
the same.
Section 21.02: EFFECT OF HOLDING OVER; RENT.
If Tenant or any party claiming under Tenant remains In
expiration or termination of this Lease, no tens possession of the Premises a any part thereof, after any or In the Premises rest shall be an unlawful detainer and all such parties shall the sutbject to immediate housterand removaland such Tenant hail
pay upon demand to Landlord for any period when Tenant shall hold the Premises after the Term has terminated or
expired, as liquidated rent for such period, a sum equal to all Percentage
Lease plus an amount computed at the rate of one and one-half (1 %)es the M and provided in nimudmiRentRfor such pert for this
Tenant shall indemnify and hold harmless Landlord from all loss, cost, expense and liability whatsoever resulting from
such holding over, including, Period, and (b)
based on such holding over. However Atha the gsener llity of the foregoing, any claims made by any succeeding tenant
the increased Minimum Rent shall not be applicable. good faith negotiating for an extension or renewal of this Lease,
ARTICLE 22: CONDEMNATION
Section 22.01: ALL OF PREMISES TAKEN.
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May 18, 2005 \ MosNJTF
28
If the whole of the Premises shall be taken or-condemned either
quasi-public use or permanently or temporarily for any public or
purpose by any competent authority In appropriation proceedings or by any right of eminent domain or
by agreement or conveyance in lieu thereof (each being hereinafter referred to as "Condemnatlon"), this Lease shall
terminate as of the day possession shall be taken by such authority, and Tenant shall pay Rent and perform all of its other
obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as shall have been paid in
advance for a period subsequent to the date of the taking of possession.
Section 22.02: LESS THAN ALL OF PREMISES TAKEN.
If less than all but more than twenty-five percent (25%) of the GLA in the Premises is taken by Condemnation, or if
(regardless of the percentage of the GLA in the Premises which is taken) the remainder of the Premises cannot be used
for the carrying on of Tenant's business, then in either event Landlord or Tenant shall each have the right to terminate this
Lease upon notice in writing to the other party within ninety (90) days after possession is taken by such Condemnation. If
this Lease is so terminated, it shall terminate as of the day possession shall be taken by such authority, and Tenant shall
pay Rent and perform all of Its obligations under this Lease up to that date with a proportionate refund by Landlord of any
Rent as may have been paid in advance for a period subsequent to the date of the taking of possession. If this Lease is
not so terminated, it shall terminate only with respect to the parts of the Premises so taken as of the day of possession
shall be taken by such authority, and Tenant shall pay Rent up to that day with a proportionate refund by Landlord of any
Rent as may have been paid for a period subsequent to the date of such taking and, thereafter, the Rent and the
applicable Break Point shall be reduced in direct proportion to the amount of GLA of the Premises taken and Landlord
agrees, at Landlord's cost and expense, as soon as reasonably possible to restore the Premises on the land remaining to
a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible);
provided that Landlord shall not be required to expend more on such restoration than an amount equal to the
condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in
connection with such award).
Section 22.03: SHOPPING CENTER TAKEN.
If any part of the Shopping Center is taken by Condemnation so as to render, in Landlord's judgment, the
remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease
upon notice in writing to Tenant within one hundred twenty (120) days after possession is taken
Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning autho?n' and
Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date with a proportionate condemning w authority, and
by Landlord of any Rent as may have been paid in advance for a period subsequent to such n refund
possession.
Section 22.04: OWNERSHIP OF AWARD.
As between Landlord and Tenant, all damages for any Condemnation of all or any part of Shopping Center,
including, without limitation, all damages as compensation for diminution in value of the leasehold, reversion and fee, and
Tenant's leasehold improvements, shall belong to the Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord all its right, title and interest to any such award.
damages in the event of any Condemnation are to belong to the Landlord whether such dam Although all
compensation for diminution In value of the leasehold, reversion or fee of the Premises, orgTe an awa leasseeh?
improvements, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord,
such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any
cost or expense which Tenant might Incur in removing Tenant's merchandise, furniture, fixtures and Unamortized costs of
Tenant's leasehold improvements.
ARTICLE 23: MISCELLANEOUS
Section 23.01: INTERPRETATION. captions
table o matter of Theonvenience and In no way f contents amplify, define, limitconstrue tor escribe the sin this cope or e Intent of such Sections sof
this Lease nor in any way affect this Lease.
(b) If more than one person or corporation is named as Landlord or Tenant In this Lease and executes the
same as such, or becomes Landlord or Tenant, then and in such event, the words "Landlord" or "Tenant" wherever used in
this Lease are intended to refer to all such persons or corporations, and the liability of such persons or corporations for
compliance with and performance of all the terns, covenants and provisions of this Lease shall be joint and several.
(c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other
genders and the use of the singular shall include the plural.
(d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and
agreements as though the words importing such covenants and agreements were used in each separate provision hereof.
Furthermore, each covenant, agreement, obligation and other provision contained in this Lease Is, and shall be deemed
and construed as a separate and independent covenant of the party bound by, undertaking or make the same, and not
dependent on any other provision of this Lease unless expressly so provided.
(e) Although the provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or
against Landlord or Tenant, but this Lease shall be Interpreted in accordance with the general tenor of the language in an
effort to reach the Intended result.
Section 23.02: RELATIONSHIP OF PARTIES.
Nothing herein be relationship of principal an aigent oraolf partnership or of join ventby the arties hereto, or by an ure between the parties hereto, iitd being understood and
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May 18, 2005 1 MosVJTF 29
'AN Alk
agreed that neither the method of co tation of Percentage Rent, nor any other vision contained herein, nor any acts
of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of
landlord and tenant nor cause Landlord to be responsible in any way for acts, debts or obligations of Tenant.
Section 23.03: NOTICES.
Any notice, demand, request, approval, consent or other instrument which may be or is required to be given under
this Lease shall be In writing, and, shall be deemed to have been given upon receipt or refusal (a) when mailed by United
States registered or certified mail, return receipt requested, postage prepaid and received or refused by the addressee, or
(b) when sent by courier guarantying overnight delivery, addressed to Landlord or Tenant at the respective addresses set
forth in the Fundamental Lease Provisions and/or such other address or addresses as either party may designate by
notice to the other in accordance with this Section and received or refused by the addressee. Any notice by the Landlord
may be given on its behalf by Agent or by an attorney for Landlord or Agent. Any notice properly sent to Tenant shall be
deemed effective whether or not a copy is sent to the address designated in the Fundamental Lease Provisions to receive
a copy of such notice.
Section 23.04: SUCCESSORS
This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon
(subject to Article 17) Landlord, its successors and assigns, and shall be binding upon Tenant, its heirs, successors and
assigns and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has
been consented to by Landlord in writing. Nothing in this Section 23.04 shall be deemed to require Landlord to give any
such consent. All of Tenant's obligations during the Term pursuant to Section 4.05, 4.06, 4.07, 5.01, 5.02(b), 7.03, 8.03(c),
11.03 and 23.17 shall survive the expiration or earlier termination of this Lease.
Section 23.05: BROKER'S COMMISSION
Tenant warrants that, except for Agent, it has dealt with no broker in connection with this Lease, and agrees to and
shall defend, indemnify and save Landlord harmless from all claims, actions, damages, costs and expenses and liability
whatsoever, Including reasonable attorneys' fees, that may arlse from any claim by or through Tenant for a commission,
finders or like fee in connection with this Lease. Landlord shall pay the fee or commission due Agent in connection with
this Lease.
Section 23.06: UNAVOIDABLE DELAYS
In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lockouts, Inability to procure labor or materials, failure of power, restrictive
governmental laws or regulations, riots, Insurrection, war (whether actual or threatened), lack of access to the Shopping
Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a similar or dissimilar
nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excuse Tenant from
completing construction of the Premises within Tenant's Construction Period unless Tenant gives written notice of the
delaying event to Landlord within twenty (20) days of the occurrence of such delaying event. Such written notice shall
specify the nature of the delaying event and the number of days of delay claimed to result therefrom. Tenant's
Construction Period shall be extended for a period equivalent to the period of actual delay. After the Rent Commencement
Date the provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all other sums due
by Tenant under this Lease and such delay shall not extend the Tern unless such delay is caused by Landlord's acts or
omissions. Delays or failures to perform resulting from lack of funds or the unavailability of a particular contractor or
personnel shall not be deemed delays beyond the reasonable control of a party.
Section 23.07: SEVERABILITY.
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 Invalid and the other of which would render the provision valid, then the provision shall
have the meaning which renders it valid. If any term or provision, or any portion thereof, of this Lease, or the application
thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to the persons or circumstances other than those as to which it Is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to
the fullest extent permitted by law.
Section 23.08: TIME OF ESSENCE.
Time is of the essence with respect to the performance of the respective obligations of Landlord and Tenant set
forth in this Lease.
Section 23.09: OTHER TENANTS; RELOCATION OR TERMINATION.
(a) Landlord reserves the absolute right to effect such other tenancies in the Shopping Center as Landlord
deemed shall or determine in the interpreted to exercise contain, its sole business judgment. Tenant hereby acknowledges that this Lease shall not be
Landlord that any department , store by implication or otherwise, any warranty, representation or agreement on the part of
or regional or national chain store or any other merchant shall open for business or
occupy or continue to occupy any premises in or adjoining the Shopping Center during the Term or any part thereof or that
Tenant shall generate a certain amount of Gross Sales or that any reimbursable amount payable by Tenant shall be any
specific amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant Is not
relying on any such warranty, representation or agreement by Landlord either as a matter of Inducement in entering into
this Lease or as condition of this Lease or as a covenant by Landlord.
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May 18, 2005 1 MosUJTF 30
Aft
(b) Deleted.
Section 23.10: APPLICABLE LAW.
The laws of the state in which Landlord's Building is located shall govern the validity, performance and
enforcement of this Lease. If either party institutes legal suit or action for enforcement of any obligation contained herein,
it is agreed that venue for such suit or action shall be in the state in which the Premises are located.
Section 23.11: WAIVER.
(a) The waiver by Landlord of any term, covenant, agreement or condition herein contained shall not be
deemed to be a waiver of any subsequent breach of the same or any other terms, covenant, agreement 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, agreement or condition of this Lease, other than the failure of Tenant
to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No covenant, term, agreement or condition of this Lease shall be deemed to have been waived
by Landlord, unless such waiver be In writing and executed by Landlord.
(b) No waiver of any covenant, term, agreement or condition of this Lease or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord in respect to one
or more tenants or occupants of Landlord's Building or any other part of the Shopping Center shall constitute a waiver in
favor of any other tenant. Landlord's consent to, or approval of, any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant. No consent or approval by Landlord shall operate to change any condition, requirement or other provision
of this Lease on any occasion unless made in writing and executed by a general partner (or executive officer) of Landlord.
Section 23.12: ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated Rent nor shall any endorsement or statement on any check or any
letter accompanying any such check or payment as Rent or the like be deemed an accord and satisfaction, and Landlord
may accept such check or payment without prejudice to Landlord's rights and remedies to recover the balance of such
Rent or pursue any other right and remedy provided for In this Lease or available at law or in equity. If Landlord shall direct
Tenant to pay Rent to a "loc kbox" or other depository whereby checks Issued in payment of Rent are Initially cashed or
deposited by a person or entity other than Landlord (albeit on Landlord's authority) then, for any and all purposes under
this Lease: (a) Landlord shall not be deemed to have accepted such payment untiine 90 days after the date on which
Landlord shall have actually received such funds, (b) Landlord shall be deemed to have accepted such
only if) within said ninety (90) day period, Landlord shall not have refunded or attempted payment M (and
Tenant and (c) Landlord shall not be bound by any endorsement or statement on any check or any refund) raaccoomppannying payment to
any check or payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction.
Landlord or Landlord's bank may accept such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided in this Lease, at law or in equity. Nothing contained in the
immediately preceding sentence shall be construed to place Tenant In default of Tenant's obligation to pay Rent If and for
so long as Tenant shall timely pay the Rent required pursuant to this Lease in the manner designated by Landlord.
Section 23.13: CORPORATE TENANTS.
In the event the Tenant hereunder is a corporation, the persons executing this Lease on behalf of the Tenant
hereby covenant and warrant that: the Tenant is a duly constituted corporation qualified to do business in the state in which
Landlord's Building is located; all Tenant's franchise, corporate and other lienable taxes have been paid to date; and such
persons are duly authorized by the governing body of such corporation to execute and deliver this Lease on behalf of the
corporation.
Section 23.14: TENANT'S GUARANTOR.
Deleted.
Section 23.15: RECORDING.
This Lease shall not be recorded; however Landlord shall have the right to record a short form or memorandum
thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall execute same.
Section 23.10: AGENT OF LANDLORD.
Agent has acted as an agent of Landlord in connection with the execution of this Lease and shall not in any event
be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms or conditions of this
Lease or for any action or proceeding that may be taken by Landlord against Tenant, or by Tenant against Landlord. Any
waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect
to, and as a waiver of any liability of, Agent.
Section 23.17: HAZARDOUS MATERIAL.
(a) As used herein the term "hazardous material" means any flammable, explosive, medical, human or
animal tissues or substances, hazardous or toxic substance, material or waste (including, without limitation, asbestos and
chlorofluorocarbons) which has been, or in the future Is, determined by any state, federal or local governmental authority or
any law, ordinance, statute, governmental rule or regulation to be capable of posing a risk of injury to health, safety or
property and/or the use, storage and/or disposal of which Is regulated by any governmental authority, including, without
limitation, all of those materials and substances designated as hazardous or toxic by the local government having
jurisdiction over the Premises, the U.S. Environmental Protection Agency, the Consumer Products Safety Commission, the
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May 18, 2005 1 MostNTF 31
Food and Drug Administration or any other governmental agency now or hereaft authorized to regulate materials and
substance. Tenant shall not cause or permit any hazardous material to be installed in the Premises as a part of Tenant's
Work or otherwise brought upon, used, kept, stored or disposed of in or about the Premises or the Shopping Center by
Tenant, its agents, employees, contractors or invitees. Notwithstanding the foregoing, Tenant may handle, store, use and
dispose of products containing small quantities of hazardous materials (such as aerosol cans containing insecticides, toner
for copiers, paints, varnishes and cleaning supplies) of Insignificant quantities stored in sealed containers and used in
accordance with manufacturers' requirements.
(b) If the Premises, any equipment (including, without limitation, HVAC equipment), trade fixtures or other
mechanical apparatus therein contain any hazardous materials installed by Tenant, its agents, employees, contractors or
invitees, Landlord, at its election, shall have the right to (1) cause Tenant to remove and properly dispose of same, all at
Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by
Landlord and its professional consultants, and Landlord shall have the right to monitor such work or (ii) perform the
removal and disposal thereof Itself, In which event Tenant shall comply with all reasonable requirements imposed by
Landlord with respect to the performance of such work, including without limitation closing the Premises for business and
remaining closed during the performance of such work, and Tenant shall reimburse Landlord, on demand, for the cost
incurred by Landlord in performing such removal (including Landlord's cost of professional consultants).
(c) Tenant shall:
(i) Promptly provide Landlord with copies of any document, correspondence,
report or communication, written or oral, relating to hazardous materials
at or affecting the Shopping Center (x) to or from any regulatory body, or
(y) stating a basis for any potential liability or responsibility of Tenant,
Landlord, or the Shopping Center, including all such documents,
correspondence, reports or communications prepared by or on behalf of
Tenant. In addition to the above, at Landlord's request, Tenant shall
provide copies of any and all records and communications whatsoever
relating to hazardous materials at or affecting the Shopping Center.
(ii) Immediately notify Landlord in the event of a suspected or confirmed
release of a hazardous material or violation of environmental laws at or
affecting the Shopping Center and caused by or related to the operations
of Tenant, its employees, contractors, agents, or any party acting on
behalf of Tenant and, at Landlord's sole option, either promptly remediate
or correct such release or violation to Landlord's satisfaction or reimburse
Landlord's cost of remediation (including reasonable attorneys' and
consultants' fees) all as set forth in (b) above; and compensate Landlord
and/or third parties for all resultant damage.
(iii) Permit Landlord reasonable access to the Premises for the purpose of
conducting an environmental audit or testing, the cost of which shall be
borne by Landlord unless the results indicate activity prohibited by
environmental laws or hereunder.
(d) In accordance with the Occupational Safety and Health Administration Asbestos Rule (1995), 59 Fed.
Reg. 40984, as amended and supplemented ("OSHA Asbestos Rule") Landlord hereby notifies Tenant of the presence
or possible presence of asbestos containing materials ("ACMs") and/or presumed asbestos containing materials
("PACMs") (as such terms are defined in the OSHA Asbestos Rule) within the Premises or adjoining enclosed common
areas, If any. The ACMs and PACMs may take the form of pipe wrap, vinyl asbestos flooring, sprayed on or trowled on fire
proofing, acoustical plaster, Insulation, textured ceiling paint and other forms. The specific location of any ACMs or
PACMs within the Premises or adjoining Common Areas may be ascertained by Tenant requesting in writing from
Landlord, without cost or expense to Tenant, the applicable portions of any environmental impact survey conducted by
Landlord regarding the Shopping Center. The purpose of Landlord's notification Is to make Tenant, its agents, employees
and contractors aware of the presence or possible presence of ACMs and/or PACMs In the Shopping Center In order to
avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during the progress of Tenant's Work
and/or Construction Work. Tenant shall obtain a signed acknowledgment from Its agents, employees and contractors
w
possible presence of ACIVIs and/or orking in or about the Premises indicating that such agents, employees and contractors are aware of the presence or
PACIVIs within the performance of Tenant's Work and/or Construction Work. Atn Land ord's a request, Tenant not hto disturb a deliver tosLandlo dt4 copes
of such signed acknowledgments.
(e) Tenant shall comply with all applicable Governmental Requirements affecting the Premises, the operation
of Tenant's business at the Premises, and the use and removal of any substances therefrom, including, without limitation,
hazardous materials installed by Tenant, its agents, employees, contractors or invitees. Such compliance shall include,
inter alia; (1) the filing by Tenant of all governmental applications and registrations for all substances used, stored,
manufactured, generated or otherwise in the Premises; (ii) the obtaining of all licenses and permits with respect thereto;
(ill) the timely filing from time to time, as required, of all reports and other matters required to be filed with governmental
authorities having jurisdiction; and (b) notifying each of its agents, employees and contractors of the presence or
presumed presence of ACMs and PACMs within the Shopping Center as set forth above.
(f) Tenant shall protect, defend, indemnify and hold Landlord harmless of, from and against all claims,
actions, liens, demands, costs, damages, punitive damages, expenses, fines and judgments (including legal costs and
attorneys fees) incurred by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this
Section 23.17 and/or spills or other contamination of air, soil, or water by or resulting from any hazardous materials
installed by Tenant, its agents, employees, contractors or invitees at or around the Premises or the Shopping Center or
resulting from removal thereof.
(g) Upon ten (10) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver to
Landlord a written statement in form satisfactory to Landlord certifying (1) If true, that Tenant has not disposed of any oil,
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 32
grease, toxic, or hazardous materiatthe Premises or (II) that any such substa used, processed or generated at the
Premises have been disposed of properly In accordance with all applicable Governmental Requirements. If Tenant is
unable to certify either of the above, Tenant shall so notify Landlord and give Landlord the details resulting in Tenants
inability to so certify.
(h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease
free of hazardous materials brought thereon by Tenant and those acting on its behalf and In a condition which complies
with all Governmental Requirements, recommendations of consultants hired by Landlord, and such other reasonable
requirements as may be Imposed by Landlord.
(i) This Section shall survive the expiration or sooner termination of this Lease.
Section 23.18: FINALIZATION OF CHARGES.
Tenant's failure to object to any statement, invoice or billing rendered by Landlord within a period of thirty (30) days
after receipt thereof shall, at Landlord's option, constitute Tenants acquiescence with respect thereto and shall render
such statement, invoice or billing a final and binding account stated between Landlord and Tenant.
Section 23.19: PRIOR LEASE.
Deleted.
Section 23.20: FINANCIAL INFORMATION.
Tenant shall at any time and from time to time within forty-five (45) days of written request from Landlord, deliver
to Landlord, Tenants annual report (or its equivalent) as may be requested by Landlord, any mortgagee or prospective
mortgagee or purchaser or prospective purchaser.
Section 23.21: SPRINKLER CHARGE.
Deleted.
Section 23.22: NOTICE TO MORTGAGEE.
If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant
written notice of the existence of such lien, then Tenant shall, so long as such mortgage Is outstanding, be required to give
to such lienholder the same notice and opportunity to correct any default as is required to be given to Landlord under this
Lease, but such notice of default may be given by Tenant to Landlord and such lienholder concurrently.
Section 23.23: WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive all right to a trial by jury in any litigation related to this Lease including any
mandatory counterclaim or cross claim.
Section 23.24: CONFIDENTIALITY.
It is agreed and understood that Tenant may acknowledge only the existence of this Lease and between
Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained in this Lease to any
tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or assignee of such tenant or
occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in this Section 23.24 shall cause
Landlord Irreparable harm. The terms and provisions of this Section 23.24 shall survive the termination of this Lease
(whether by lapse of time or otherwise).
Section 23.25: RIGHT OF FIRST REFUSAL.
As a specifically bargained for right hereunder, if Tenant makes an assignment for the benefit of creditors, files or
suffers the filing against it of a petition under any chapter of the United States Bankruptcy Code, or 9 proceedings for
reorganization or composition with creditors under any federal or state law are instituted by or against Tenant and Tenant
or Tenant's trustee (as the case may be) subsequently attempts to assign this Lease or Tenants interests in this Lease
pursuant to 11 U.S.C. § 385 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease
and Tenant's Interests thereunder (collectively "Tenant's Leasehold Interests") upon the following terms and conditions:
a. If Tenant receives a bona fide, arm's length offer to purchase Tenant's Leasehold Interests (the "Third
Party Offer"), which Third Party Offer Tenant or Tenants trustee (as the case may be) deems acceptable, Tenant or
Tenants trustee shall first, deliver a copy thereof to Landlord ("Landlord's RFR Notice"). Landlord shall thereafter have
the right to assume and acquire Tenants Leasehold Interests described in Landlord's RFR Notice on the same terms and
conditions as set forth in the Third Party Offer.
b. Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant
or Tenant's trustee (as the case may be) in writing of Landlord's intention to exercise the right of refusal to acquire
Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction
described In Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's
trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exclusively to Landlord
in accordance with the terms and conditions set forth in the Third Party Offer. If Landlord fails timely to respond to
Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or
Tenant's trustee (as the case may be) shall be free to sell and assign the Tenants Leasehold Interests described In the
Landlord's RFR Notice to the proposed purchaser (the "Third Party Purchaser") on the same terms and conditions set
forth in the Third Party Offer; provided, however, that the sale and assignment of Tenant's Leasehold Interests to the Third
Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this
Sbarro-CapitalCity-Final
May 18, 2005 1 MosVJTF 33
Aft
e.
Lease by the Third Party Purchaser ar' any successor thereto, shall be and rem subject to the right of refusal herein
granted to Landlord.
C. The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord
herein is not intended to operate, and'shall not be construed, as a provision that prohibits, restricts, or conditions the
assignment of this Lease within the meaning of 11 U.S.C. § 365(f) or any similar statutory provision.
Section 23.26: TENANT ALLOWANCE.
Landlord shall reimburse Tenant on account of the cost of Tenant's Work, in the amount and manner hereinafter
provided, the amount of such reimbursement being referred to herein as "Tenant's Allowance". Landlord shall set off
against Tenant's Allowance all costs, charges, fees, and other sums which Tenant is obligated to pay pursuant to the
Lease and the Exhibits thereto which have not been paid to Landlord or Agent, as the case may be, at the time of Tenant's
request for the payment of Tenant's Allowance.
A. Amount of Allowance. Tenant's Allowance shall be $175,000.00
B. Payment of Allowance. Provided Tenant is not otherwise in default, Landlord shall pay Tenant's
Allowance to Tenant after the completion of Tenant's Work, as certified by Tenant's architect; subject, however, to
Landlord's verification that Tenant's Work has been completed, but in no event shall Tenant's Allowance be paid to Tenant
prior to the Tenant having furnished to Landlord, in form and substance acceptable to Landlord, all of the following:
(i) Tenant's affidavit that Tenant's Work has been completed to Tenant's satisfaction and In
complete accordance with the Tenant's Final Plans and Tenanfs construction requirements and certifying to Landlord the
amount of the accepted bid for Tenanfs Work, which affidavit may be relied upon by Landlord and any deliberate or
negligent misstatement or false statement by Tenant therein may be treated by Landlord as an Event of Default.
(ii) The affidavit of the general contractor performing Tenants Work that such Work has been fully
completed in accordance with the Tenants Final Plans and that all subcontractors, laborers and materialmen engaged in
or supplying materials for Tenant's Work have been paid in full.
(Iii) An executed and acknowledged Release of Mechanics' Liens executed by Tenant's general
contractor and by every subcontractor and supplier of labor and/or materials engaged In or supplying materials to Tenants
Work specifying that such contractor has been paid in full.
(iv) Properly issued certificates evidencing acceptance or approval of the demised premises by
appropriate governmental authorities, Including the underwriter's approval certificate for the electrical work done by Tenant
and acceptance of the sprinkler system.
(v) Notice by Tenant to Landlord that Tenant has opened the Premises for business with the public,
and setting forth the date on which such opening occurred.
. (vi) A set of "as-built" plans and specifications for Tenant's Work, together with names and addresses
of Tenant's electrical, plumbing, and other contractors, prepared and sealed by Tenants architect.
(v8) Any other statements, certificates or agreements requested pursuant to the Lease or required by
Landlord to secure the release of such allowance by any escrow account.
C. Abatement of Tenant ilowance. In the event Tenant fails to submit to Landlord the documents referred
to in B, above within two (2) years after the date herein, Landlord's obligation to pay the Tenants Allowance shall be null
and void.
D. In the event this Lease is terminated prior to the natural expiration of the Term, Tenant shall pay to
Landlord, upon termination, the unamortized portion of the Tenant Allowance (amortized on a straight-line basis over the
Term).
Section 23.27: TENANT'S EXCLUSIVE.
After the Required Opening Date, Landlord shall not lease space in the Food Court located in the Shopping Center
to any tenant for the primary use as a pizzeria (the "Other Tenant"). In the event Landlord violates the provisions of this
paragraph, Tenant's sole and exclusive remedy shall be (1) a thirty percent (30%) reduction in Minimum Rent effective
upon the opening for business In the Shopping Center by the Other Tenant ("Rent Reduction") or (ii) In the alternative,
within sixty (60) days after the opening of the Other Tenant, Tenant hereunder may elect to terminate this Lease on sixty
(60) days prior written notice to Landlord. Tenanfs right to Rent Reduction shall continue until the earlier to occur of (1) the
expiration or earlier termination of the Other Tenant's lease term; (ii) Tenant is in material default or monetary default of
any of its obligations under this Lease. In no event shall the provisions of this paragraph apply to any present or future
Major or Junior Major, or to any existing tenant that Is permitted under its lease to sell pizza, their respective successors,
replacements and assigns. In addition, the foregoing exclusive shall not be applicable to (1) full servlce-restaurant(s), (ii)
the incidental sale of pizza by a tenant, (iii) current tenants, their successor or assigns, with use clauses permitting the sale
of pizza, (iv) any future expansion of the Capital City Mall, or (v) to any assignment or subletting of the Lease by Tenant.
The rights conferred to Tenant by this provision are personal to this Tenant and will be null, void and of no effect to any
assignee, or subtenant whether by voluntary transfer or by operation of law. Tenant shall agree to waive this provision in
the event this provision is determined to be in violation of any federal, state or local law, rule or ordinance. In the event
that any tenant in the Food Court portion of the Shopping Center sells pizza in violation of this clause, Tenant shall have
the right to seek to have such tenant discontinue the sale of pizza, including pursuing any temporary or permanent
injunction.
Section 23.28: LANDLORD'S CONSENT.
Landlord reserves the right arbitrarily to withhold its consent with respect to changes affecting the exterior of the
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May 18, 2005 \ Most/JTF 34
Premises (including the storefront an signs thereon), changes involving or affe 4h
g utility lines and other mechanical or
electrical facilities running through the Premises, Tenant's right to assign or sublease this Lease except as otherwise
stated herein and Tenant's use of the Premises; as to all other instances where it is herein provided that Tenant must
obtain Landlord's consent, said consent shall not be unreasonably withheld. In the event a dispute should arise between
Landlord and Tenant as to whether Landlord has acted reasonably in failing to give its consent in an instance under this
Lease where Landlord has agreed not to unreasonably withhold the same, Tenant's sole remedy as a result thereof shall
be an action for a declaratory judgment on such issue and in no event shall Landlord be liable to Tenant for any damages
(direct or consequential) allegedly suffered by Tenant thereby.
Section 23.28: ENTIRE AGREEMENT
(a) There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes
and cancels any and all previous negotiations, arrangements, letters of intent, lease proposals, brochures, agreements,
representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant
with respect to the subject matter thereof, and none thereof shall be used to interpret or construe this Lease. The Lease
sets forth all of the covenants, promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Premises, Landlord's Building and the Shopping Center. No alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing, signed by them and mutually delivered
between them.
(b) The submission by Landlord to Tenant of this Lease shall have no binding force or effect, shall
not constitute an option for leasing of the Premises nor confer any rights or Impose any obligations upon either
party until the execution thereof by Landlord and the delivery of an executed original copy thereof to Tenant.
(c) Deleted.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the'date first hereinabove written
LANDLORD:
PREIT SERVICES, LLC,
Agent for,MCAPITAIyep LIMITED PARTNERSHIP
BY:
SEVEPO HILLS, INC.
By' AAWA-14Z Title:_
Attest:
Title:
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 35
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1-17 EXHIBIT "B"
DELETED.
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 36
EXHIBIT "C"
COMPLETION CERTIFICATE
DATED AS OF
PARTI
SHOPPING CENTER LEASE (the "Lease") dated as of
Parties:
PR CAPITAL CITY LIMITED PARTNERSHIP ("Landlord")
SEVEN HILLS INC ('Tenant")
Premises:
Tenant Store No: FC1
GLA of Premises: 725 a are feet
Actual Opening Date:
Rent Commencement Date:
Expiration Date:
PART II
Tenant, intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and agrees with
Landlord as follows:
A. the dates and other information set forth In this Completion Certificate are true and correct; and,
B. the Rent Term commences on the Rent Commencement Date set forth in PART I hereof and ends
absolutely and without notice at 11:59 P.M. (local time) on the Expiration Date, unless sooner terminated as provided in
this Lease or extended by written agreement of the parties; and,
C. the Lease has not been assigned, supplemented, amended or otherwise modified; the Lease represents
the entire agreement between the parties as to the Premises and its leasing; there are no breaches or other defaults by
Landlord under the Lease; all conditions of the Lease to be performed by Landlord and necessary to the enforceability of
the Lease have been satisfied; the Lease is in all other regards in full force and effect; and,
D. Tenant has accepted possession of and has entered into occupancy of the Premises; the Premises has
been accepted by Tenant as being in accordance with the terms and conditions of the Lease; no Rent has been nor will be
paid or prepaid other than as provided in the Lease and there are no defenses, offsets, deductions or counterclaims
against the enforcement of the Lease by Landlord or the payment of Rent by Tenant; and,
E. the Lease is subordinate to the REA and to any and all mortgages on or deeds of trust as to the Shopping
Center subject to the non-disturbance provision of Section 18.02 of the Lease.
PART III
In addition to the foregoing certifications, Tenant has delivered to Landlord all of the following documents relating
to work that has been performed by, through or under Tenant in or about the Premises:
A. properly executed and acknowledged affidavits (satisfactory to Landlord) from contractors engaged by
Tenant that all work in or about the Premises has been fully completed in accordance with the Final Plans approved by
Landlord and that each of Tenant's contractors, as well as all subcontractors, laborers and materialmen, has been paid In
full: and
B. properly executed and acknowledged releases of mechanics', materialmen's and laborers' liens
(satisfactory to Landlord) with respect to the Premises from each of Tenant's contractors and from every subcontractor
and materialman; and
C. a set of approved "as-built" drawings and specifications for the work done by Tenant in and about the
Premises, prepared, signed and sealed by Tenant's architect, together with a complete set of Tenant's "as-built" sprinkler
and other fire protection drawings and specifications prepared, signed and sealed by Tenant's architect or engineer; and
D. true and complete copies of certificates of occupancy and licenses from governmental bodies having
jurisdiction over Tenant's use or occupancy of any part of the Premises; and
E. a cost
break
tisfactory
o Landlord item of the work d ondeetailed
by, through or u der Tenant in and abouttthe Premises; and the line items and cost of each line
F. electrical underwriters certificate from an organization satisfactory to Landlord.
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May 18, 2005 \ Most(JTF 37
All terms defined in any otheart of the Lease are used herein as defin t erein.
This COMPLETION CERTIFICATE has been executed as of the date first above written.
TENANT:
SEVEN HILLS, INC.
By:
(Corporate Seal) Title:
Attest:
Title:
Sbarro-CapitalCky-Final
May 18, 2005 1 MosUJTF 38
A r*
EXHIBIT "D"
CAPITAL CITY
DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK
THE FOOD COURT
PREFACE
This Exhibit "D" describes the obligation of the Landlord and the Tenant for the design and construction of the
Premises. Each term used in this Exhibit which is defined in the main body of the Lease shall have the same meaning
when used herein.
The portion of Landlord's Work described in Sections A will be performed by Landlord at Landlord's expense.
Notwithstanding anything to the contrary in the Lease, the portion of Landlord's Work described in Section C will be
performed by Landlord at Tenant's expense.
The work described in Section B will be performed by Tenant at Tenant's expense and shall be completed in
accordance with Tenant's Final Plans as approved by Landlord. Tenant shall Include this Exhibit "D" in the plans and
specifications delivered to Tenant's contractor and subcontractors and incorporated in their respective construction
contracts.
Landlord and Tenant have a common interest in opening the Premises on the date finally fixed by Landlord for the
opening of the portion of the Shopping Center containing the Premises (hereinafter called the "Grand Opening Date"), if
this Lease is made prior to such date. To this end, Landlord and Tenant will coordinate their work schedules to achieve
such result insofar as the schedule and prudent construction practice will allow.
In order to insure an orderly and aesthetically coordinated storefront and sign design and to insure that storefront
and signing requirements are understood by tenants, their respective contractors and fabricators, reference should be
made to the Design and Construction Criteria (see Section 2.03 of the Lease).
The Concaot
(Forthcoming)
Section A: WORK BY LANDLORD
(1) Electrical Conduk.
Landlord will provide electrical conduit stub-in sized for 277/480v from nearby electrical room. Any
increasetupgrade shall be performed by Tenant at Tenant's sole cost and expense.
(2) Propane line stub-In.
Landlord will provide 2" propane stub-in propane supply line from Landlord's point of distribution. Any
increasetupgrade to existing service, if available, shall be performed by Tenant at Tenant's sole cost and expense.
(3) Sprinklers.
Landlord will provide a fire sprinkler flange, stub and heads (up) to the Premises based upon one (1)
sprinkler head per one hundred twenty (120) square feet of GLA in the Premises.
(3a) Sprinklers (for klosk).
Landlord will provide common area sprinkler system.
Section B: WORK BY TENANT IN PREMISES
All work by Tenant in the Premises will be performed by contractors selected by Tenant and approved in advance
by Landlord. As one of the conditions for approval, Landlord may require the contractor to procure a payment and
performance bond satisfactory to Landlord for the benefit of the Tenant.
A store including signage will be designed and installed in accordance with the Design and Construction Criteria,
the lease outline drawing, the Final Plans as approved in writing by Landlord, and the requirements of the jurisdictional
authorities. All graphics, signage, countertops and all partitions facing on the Enclosed Mall will be considered as Tenant's
storefront and must conform to Landlord's Design and Construction Criteria. For a description of that portion of work to be
performed by the Landlord, at Tenant's expense, see Section C herein.
Tenant must directly arrange for and procure at Tenant's expense all state and local building, plumbing, electrical,
HVAC, sprinkler, occupancy and other permits required in connection with the construction of its Premises. All
construction by Tenant must be in accordance with all applicable laws, ordinances, rules and regulation of government
authorities and the following:
Lower Allen Township Building dr Zoning (contact: Dave Atland; 717.975.7575) Pennsylvania Health
Department (contact: Stanley Shivell; 717.346.3223)
Pennsylvania Department of L$1! Bureau of Safety (717.787.3806)
On or before the Construction Commencement Date, Tenant shall commence Tenant's Work and thereafter
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May 18, 2005 1 Most/JTF 39
diligently and continuously proceed4% Aqk
oomplete the Premises In accordance wi the approved Final Plans and permit
Landlord to commence the work specified in Section C.
(1) Utilities by Tenant.
Tenant shall directly arrange for and procure at Tenant's expense: (a) Telephone telephone conduit) between the corresponding alcove(s) and/or electrical panel(s) inu Landlord's telephone Buiding and the Preen sesh
(b) Connection to Landlord installed Y propane stub-in.
(c) Connection to the Landlord-installed utilities.
(d) An individual grease interceptor, as required by code, shall be installed within the
Premises. Tenant shall be responsible for meeting all state and local codes.
(2) Demising Partitions.
Tenant will furnish and install 5/8" Firecode "X" drywall taped and spackled on the interior of the Premises from the
floor to the underside of the deck and provide fire safing In the deck flutes over the top track at any point at which the
drywall crosses the deck plates, or more as required by the jurisdictional authorities, on the Tenant side of partition
between the Premises. Demising partitions shall have 5'-0' file return per tenant criteria drawings SK-3.
(3) Callings
A suspended ceiling will be installed throughout the Premises; to be not more than eleven feet (11 ft.), nor less
than ten feet (10 ft.) above finished floor, without the prior approval of the Landlord. Access panels will be provided by
Tenant where Landlord deems necessary. All ceilings must conform to the requirements of the jurisdictional authorities.
(4) Column Fireproofing.
All freestanding structural steel columns must be enclosed with 5/8 inch Firecode "X" drywall taped and speckled
from finish floor to underside of deck. All voids at deck shall be sealed with fire safing.
(5) Non-Combustible Construction.
All Tenant construction must be of non-combustible material. Treated, fire resistant wood will rm
be pe itted where
approved by the jurisdictional authorities. Combustible trim and finish, where permitted, must conform to requirements
of the jurisdictional authorities. No wood (or combustible material) shall be incorporated in any constructhe the work above
the ceiling installed in the Premises. Uon (6) Fixture Suppork
All Tenant improvements, other than ceilings and lighting fixtures, must be floor mounted unless written approval
is obtained from the Landlord to support improvements otherwise.
(7) Mezzanines.
No mezzanine will be constructed unless Landlord approves such construction in writing.
(8) Floor Penetrations.
Tenant shall be liable for any damage to Tenant facilities below and/or adjacent to it during and after construction
due to floor penetrations made by Tenant. Any penetrations made by Tenant through the floor shall be made with a
watertight flashing collar.
(9) Tenant Mechanical system.
Toilet exhaust systems, plumbing vents and tenant-installed mechanical and ventilation systems must conform to
the following:
(a) Tenant will design, furnish, and install in the Premises a low velocity air distribution
system based upon Landlord's system.
(b) All exhaust, air intake and roof top unit locations must meet all clearances indicated In
current state and local codes. Locations must be approved by Landlord shell engineer prior to Tenant's plan preparation.
(c) No openings, fans, vents, louvers, grilles or other devices will be installed in any demising
partition or exterior wall without Landlord's written approval.
Section C hereof, at Tenant's expe? penetrations will be performed solely by Landlord's roofer in accordance with
(e) Tenants requiring exhaust and make-up air will design, furnish and install an exhaust and
make-up system to exhaust air at the minimum rate, with make-up air at 90% of the exhaust quantity to prevent migration
of odors and/or heat and cooling to other occupied premises or the public area. Make-up air systems are required for all
Tenant-furnished exhaust systems, exclusive of toilet exhaust systems. Any tenant exhaust hood shall be regenerative,
makeup air type with heated tempered makeup air. Tenant shall, in addition to the hood makeup air, provide any
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May 18, 2005 1 MosVJTF 40
Aft
additional makeup air to bring the tote o 90% of the exhaust air. q1P
(f) Any balance of any exhaust and make-up system not provided by Landlord is the
responsibility of Tenant and Tenant will furnish Landlord with two (2) copies of a certified air balance report. Landlord's
specification of HVAC conditions within the Mall is predicated on the correct balance, to Landlord's satisfaction, of Tenant-
installed mechanical systems.
(g) Tenant shall design, furnish and install a complete ducted supply and return air system
throughout Tenant's facility. Tenant shall provide shop drawings of all work to the landlord for review prior to doing any
work.
(h) Tenant's ceiling area shall be used as a return air plenum for the Landlord's HVAC
system only. All material passing through this area shall be rated accordingly. All equipment, wiring, piping, ducting etc.
installed in tenant's ceiling shall be plenum rated.
(1) Tenant is responsible for removing all abandoned roof top equipment.
U) Hoods and exhaust systems for food processing will include C02 fire extinguishing
systems installed in the hood, an automatic grease extracting exhaust system and an automatic shut down of the hood
exhaust fan all of which will be installed In accordance with the requirements of the jurisdictional authorities and the
Landlord's insurance carrier. Tenant shall conform to all NFPA requirements for hoods Including, but not limited to
Automatic Ansul Systems with automatic gas emergency shutoff valves.
(k) Product-of-combustion vents for gas fired equipment will be discharged through the roof
directly to the exterior of Landlord's Building.
(1) Condensate lines for refrigeration will terminate within the Premises in accordance with
the requirements of the jurisdictional authorities.
(m) All HVAC equipment should be electric cooling & electric heating with the heating supply
connected to the tenant's meter.
(10) Sprinklers.
The Landlord will provide a fire sprinkler flange and stub, with butterfly valve, to the Premises based upon one (1)
sprinkler head per one hundred twenty (120) square feet of GLA in the Premises, as set for in the Section C below. The
Tenant will install a fire sprinkler system within the Premises based upon a design criterion of a maximum of 0.18 galons
per minute per square foot of GLA in the Premises and in accordance with drawings approved by Landlord, Landlord's
insurance carrier and jurisdictional authorities. If the Premises exceeds 3,000 square feet, then Tenant shall design its
system for a maximum of 0.18 gallons per minute per square foot of GLA for the most remote 3,000 square feet. All
designs and calculations shall be performed by a licensed Professional Engineer and be signed and sealed as such.
(11) HVAC.
Tenant will provide and install self-contained rooftop heating and cooling equipment on the roof of the Premises.
Tenant shall submit all equipment information to Landlord prior to order or purchase for Landlord's approval of
manufacturer, size, weight, location and design parameters. The maximum height of such roof mounted equipment
including, without limitation, curbs and base will not exceed 5'0" and will be mounted on manufactured metal curbs.
Further, the location of such equipment will be limited to structural bay areas designed on the lease outline drawing. No
wood sleeper mounted equipment over the roof membrane will be permitted. Tenant shall be responsible for the provision
and installation of additional structural bracing for rooftop equipment, if required.
Landlord shall have the right to install controls to limit the demand ceiling of the Shopping Center's kW usage. In
the event the Landlord installs such controls, Tenant will make the unit accessible at construction and subsequent to
construction for installation and repair.
(12) Tenant Electrial Bysterns
All electrical work including, without limitation, Tenant's main disconnect switch, transformers, circuit panels,
branch circuit wiring, wiring to Tenant's HVAC equipment, wiring devices, cooking equipment, lighting fixtures, lamps,
emergency lighting, communication systems, burglar alarms, sign and logo lighting, and TV and radio systems must
conform to the following criteria:
utility. (a) The requirements of the jurisdictional authorities, the National Electric Code and the local
(b) The requirement for roof openings described in Section C hereof.
(c) All fluorescent lighting must have electronic ballasts.
(d) The main disconnect at the Landlord's electrical room shall be either a fused switch or
circuit breaker. If a fused switch is provided, tenant shall install fuses therein that are compatible with Tenant's load
requirements. If Landlord equipment is designed for circuit breaker installation, Tenant shall install breaker that is
compatible with landlord's equipment.
Premises. (e) Service conductors must be copper from Landlord's utility room to and throughout the
(f) No appurtenances will be affixed to the exterior wall or interior or exterior of the roof of
Landlord's Building, without Landlord's prior written approval.
Sbarro-CapitalCity-Final
May 18, 2005 1 Most1JTF 41
(g) Any sign, logo or show window illumination must be controlled by a time clock.
() Tenant will fursh Lan two (2) ies of an electrical summa,
board schedule, electricalhequipm nt schedules and otherreated reports on forms furnished by La dlord electrical panel
Tenant facilities (1) Tenant shall provide the temporary electrical distribution systems for construction of
.
Q) Tenant shall provide power and lighting plans to address all criteria under Section B.
(k) Tenant shall provide electrical riser diagram(s) to show Tenant's power distribution,
including Tenant's connection to Landlord/Tenant distribution location.
(1) All fire alarm connections to Landlord's fire alarm system must be shown. Tenant is
responsible for. all costs to connect to existing fire alarm system, including testing.
(m) Tenant's smoke detectors, and duct smoke detectors in Tenant's air handling unit, must
be compatible with Landlord's fire alarm system.
(n) Tenant shall provide and install additional, structural engineer-verified bracing for
transformer, If necessary.
(o) Tenant shall provide and install kiosk lighting, as specified in drawing details.
(13) Discipline.
Tenant will enforce strict discipline and good order among the employees of Tenant's contractor and
subcontractors. Tenant shall require its general contractor to keep a qualified superintendent on the Premiss at all times
when Tenant's work is being performed by Tenant's contractor or subcontractors.
(14) Character of Employees.
Tenant will not employ any unfit person or anyone not skilled in the work he is performing, or any workman that is
incompatible with the balance of the work force or who will cause, or whose presence will cause, labor disputes or work
stoppages. In the event any employee(s) of Tenant or Tenant's Contractor causes a labor dispute or work stoppage,
Tenant expressly agrees to have such employee(s) immediately removed from the Shopping Center upon Landlord's
request, and that Tenant's failure to do so shall constitute an Event of Default under this Lease.
(15) Clean Up,
Tenant will maintain the Premises in a clean and orderly condition during construction, merchandising and
occupation. Tenant will promptly remove at least once a day all unused construction materials, equipment, shipping
containers, packaging, debris and flammable waste from the Premiss. Tenant will contain all construction materials,
equipment, fixtures, merchandise, shipping containers and debris within the Premises. Malls, courts, arcades, public
corridors, service corridors and the exterior of the Landlord's Building must be clear of Tenant's equipment, merchandise,
fixtures, refuse and debris at all times. Trash storage within the Premises must be confined to covered metal containers.
During construction, a ten (10) pound dry chemical fire extinguisher must be kept within Tenant's construction site.
(16) Tenant Contractor Werlc Bros
Tenant's Contractor is required to confine his construction procedures to the Premiss, except as required to
encroach on the mall public space for work related to the Tenant's storefront.
(17) Fire Alarm System.
Tenant shall be responsible for providing and installing fire alarm system that ties in to Mall Central Alarm System.
(18) Store Closure. (Deleted)
(19) Deliveries.
All Tenant deliveries shall occur at the service court and no later than 10am.
(20) Slanage. (criteria forthcoming)
Tenant shall design, fabricate and install signage in accordance with Design Criteria at Tenant's expense. All
work shall be purchased through Mall/ Owner's selected sign company. NO EXCLUSIONS.
(21) Menu Boards (criteria forthcoming)
Food Tenants shall provide menu board signage that conforms with the Design Criteria for Menu Board Signs.
(22) Flooring & Walls
All flooring in kitchens and behind the Tenant's customer service counter shall be of an Impervious material (i.e.,
ceramic or quarry tile) with an appropriate waterproofing membrane applied below floor finish material.
Walls from the lease line back approximately 5'-0" into Tenant's space shall conform to Tenant Criteria drawing
Sbarro-CapitalCity-FI I
na
May 18, 2005 1 MosviTF 42
SK-3 with tile finish as selected by Lar. lord/Owner. NO EXCLUSIONS.
(23) General Reauiremen s
(a) Tenant shall be required to submit a plan and elevation of the customer service counter
describing in detail all equipment to be placed on the front service counter and adjacent counters. Landlord reserves the
right to review and approve the placement of all equipment, display units and food/beverage dispensing units within the
view of customers. ood/be shall be recessed(b)into el countertocash Equipment at the ant se ni counter mat be ter at the front service counter
countertop surface if in Landlord's sole opinion such equipment can be appropriately screened from view.
(c) Tenant Is encouraged to incorporate at least one (1) food display case within its counter front.
Display cases shall be Internally illuminated and shall be used solely for the merchandising display of food and/or related
items. Food merchandise on display must maintain a fresh attractive appearance. Retail operations that include the sale
of accessory goods In support of food being sold (hard or soft good specialties) are also encouraged to display
merchandise accessories in a separate case. Landlord reserves the right to review and approve the design and
construction details for all such display cases.
(d) All Tenant's interior partitions shall be finished with an impermeable, hard, durable surface such
as tile, plastic laminate (or other finish as reviewed and approved by Landlord). Wall surfaces visible from the customer
service area must be finished with ceramic tile or higher quality materials.
(e) Rear areas of Tenant stores for storage and/or food preparation shall be screened from view by a
partition or other appropriate means from patrons standing at the store's counter.
Tenant shall incorporate recessed containers for the following items (as required for store
operations) top surface of the customer service counter: condiments, napkins, straws, utensils, food service traand small within paper
waste products. In the event that Tenant fixture and equipment plan for the front service counter cannot physically
accommodate containers for these items, Tenant shall provide remote condiment counters containing same within the
customer service area. Such condiment counters shall be appropriately screened from view from the Shopping Center
Common Area. An integral trash receptacle shall be Incorporated Into the design of the customer service and condiment
counters.
Section C: WORK BY LANDLORD IN PREMISES AT TENANTS EXPENSE (H Applicable)
Landlord will perform the following required work in the Premises at Tenant's expense. The cost of such work
(and the cost of any other work herein provided as to be done by Landlord at Tenant's expense) will be invoiced to Tenant
upon completion of the work and will be payable within thirty (30) days thereafter as additional rent. Any failure to pay as
required hereunder shall be deemed an Event of Default under the Lease.
(a) Service Corridor Door Fre.ma and Sion. If a service corridor door does not exist, Tenant is
responsible for installing said door and door frame in accordance with Landlord's Design and Construction Criteria. If
Landlord has installed a service corridor door, Tenant shall reimburse Landlord a unit cost of One Thousand Three
Hundred Fifty and 00/100 ($1350.00) Dollars for this work. Landlord shall supply and install Tenants service corridor door
sign for all service doors. Tenant shall reimburse Landlord a unit cost of Fifty and 00/100 ($50.00) Dollars per sign.
(b) I& Furnish and install a base building standard finished floor tile between the storefront lease line and
the Tenants storefront closure. The unit cost installed for this work will be Twenty-five and 00/100 ($25.00) Dollars per
square foot of horizontal application and Fifteen and 00/100 ($15.00) Dollars per lineal foot of base application. This unit
price will be effective only if Landlord's paving contractor is required to perform such work out of normal sequence, Tenant
will reimburse Landlord for the actual cost on installing the finished floor plus fifteen percent (15%) thereof for
administration. In the alternative, Landlord may elect to furnish the finished floor material to Tenant at the unit cost of Ten
and 00/100 ($10.00) Dollars per square foot and Tenant shall complete the installation.
(c) Floor Slab. The floor slab in previously occupied spaces shall remain as is. In the renovated area, if
Landlord has poured the concrete slab, the unit cost for this work shall be Five and 00/100 ($5.00) Dollars per square foot.
This unit price will be effective only If Landlord's concrete flooring contractor Is able to perform such work in the normal
seq ee e. If Landlo os coorcret actual flooring co of the wow required ?pnerform such work out of normal sequence, Tenant
alternative, Landlord may direct Tenant to pour the floor at Tenant's expense. (15%) thereof for administration. In the
(d) Demisino Studs. Furnish and install 6" metal studs 16" on center from floor to the underside of the
structure of the roof deck and/or structural members. The installed unit cost to be paid by Tenant is Sixty and 00/100
($60.00) Dollars per lineal foot.
(e) Roof Penetration. All roof penetrations and flashing will be performed solely by the Landlord's
designated roofing contractor. Tenant shall contract directly with Landlord's roofer for this work. This scope of work shall
be at tenant's sole cost.
M Tenant Eleccric?? Qgno, floe, Connect Tenant's electrical system to Landlord's electrical
system. Tenant shall reimburse Landlord for the actual cost of the work plus fifteen percent (15%) thereof for
administration.
(g) T_emoorarv Atari m-l , During construction, flxturing and merchandising of the Premises,
temporary electric power will be secured by Tenants contractor, as approved by the local electrical inspector. The
consumption of temporary power obtained shall be coordinated, directly, with PREIT (as utility company). Tenant shall
switch to use of its permanent electrical system as soon as possible and shall thereupon cease to use the temporary
Sbarro-CapitalCfly-Final
May 18, 2005 1 Most/JTF 43
electric power supply. 9 011
(h) Temporary Storefront, If the Landlord has installed the temporary barricade, Tenant shall reimburse
Landlord Forty-eight and 00/100 ($48.00) Dollars per lineal foot for the cost of this work plus required barricade graphics.
In the event a temporary barricade does not exist, Tenant shall install this in accordance with the Design and Construction
Criteria.
(i) Telephone Conduit. If Landlord has installed conduit to Tenant's premises, Tenant shall reimburse
Landlord Six and 00/100 ($6.00) Dollars per lineal foot for the cost of this work.
0) Sprinklers. If the Landlord has installed a sprinkler system providing one sprinkler plug for each one
hundred twenty (120) square feet of GLA in the Premises, Tenant shall reimburse Landlord One and 00/100 ($1.00) Dollar
per square foot for the cost of this work. In all other areas of the mall, the sprinkler system is existing and shall remain as
is. Any modification to this system shall be performed by Tenant at Tenant's sole cost and expense.
(k) Water Servical3anitarv Line. At a cost to Tenant of Seven Hundred Fifty and 00/100 ($750.00) Dollars;
a % (three quarter) inch domestic cold water service line, valved and capped, will be brought from the corresponding water
meter to one point within the Premises. A 4 (four) inch roughed sanitary line will be installed at one point within the
Premises. Tenant will be responsible for connections thereto. If required, Landlord shall install a dean-out in the
Premises at Tenant's expense. The locations of such service line and grease line connection will be Indicated on the
lease outline drawing.
(1) Storefront Landlord will provide, at Tenant's expense, a storefront complete with portion of knee-wall
and soffit to which Tenant shall install Mall standard signage and blade sign and countertops in accordance with the
Landlord's Design and Construction Criteria (criteria guidelines forthcoming). Tenant shall reimburse Landlord Twenty-
five Thousand and 00/100 ($25,000) Dollars for the cost of this work.
(1) Food Court Kiosk (no provisions for food/water use for new food court kiosksiretail-only)
(2) Additional Work.
If the design of the Premises necessitates any of the following, Landlord will perform the following additional work
in the premises at Tenant's expense upon receipt of an approved work order from Tenant. The cost to Tenant of such
work will be Landlord's actual cost of the work plus fifteen percent (15%) thereof for administration and will be Invoked to
Tenant upon completion of the work, and will be payable in accordance with Subsection C (1) above.
(a) Electrical Service, Electrical conduit larger than installed size; relocation of conduit; furnishing of
electric service in excess of 100 amps.
(b) Water Service. Additional water service; relocation of water service.
(c) §2=12113do. Additional sewer service connect; relocation of roughed sanitary.
(d) Sanitary Vent. Sanitary vent connect; relocation of sanitary sewer inverts.
(e) SDrinkter. Increase in permitted number of sprinkler heads. Landlord may refuse to allow
additional sprinkler heads in the event such additional heads may contribute to exceeding the capacity of the sprinkler
system.
(f) Opening. Openings in demising partitions provided such openings have been approved by the
Landlord in writing.
(g) T.V. Service. Install TV antennas; extend conduits and/or wires to the Premises.
(h) Structural Changes. Any revisions and/or additions to Landlord's structural system. Landlord
may refuse to approve or to perform any changes.
(I) Propane. Any additional modifications to Landlord provided 2' propane supply stub-in will be the
sole responsibility of the Tenant.
(3) Jurisdictional Code Requirements.
In the event the Tenant is notified of any violations of codes, ordinances, regulations, requirements or guidelines,
either by the jurisdictional authorities or by the Landlord, Tenant will, at its expense, correct such violations within ten (10)
calendar days after such notification. Should Tenant fail to correct such violations within ten (10) calendar days, Landlord
may correct such violations at Landlord's actual costs plus fifteen percent (15%) thereof for administration. Such
corrections will be at Tenant's expense, which shall be invoiced, and is payable as set forth in Subsection C (1).
Section D: PROCEDURE
(1) Tenant Coordinator, Landlo
d's
Tenant
Drawi and Final Plans. Ail quests nsopertaining tothe responsible
of Tenant's review Premises and all planDsubmitta s shall
be directed to the Tenant Coordinator at the Landlord's corporate office.
(2) Lease Outline Drawina.
Landlord shall furnish to Tenant a drawing of the Premises of the type commonly known as a lease outline drawing
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May 18, 2005 1 Most/JTF 44
(herein sometimes referred to as th *O.D."). The L.O.D. will be prepared by dlord's architect at a scale of 1/4 Inch
equals 1 foot and will show the dimensions and square footage of the Premises. In addition, the L.O.D. may show the
location of the sprinkler connection, electrical conduit, sanitary sewer, water line, and points of entry of other Landlord
supplied services, and may include an elevation and section of storefront and the plan of the structural system. h Is
Tenant's responsibility to verify all existing conditions and dimensions.
(3) Design Drawings and Final Plans.
On or before the Design Drawings Submission Date, Tenant shall submit to the Tenant Coordinator the Design
Drawings and Final Plans In accordance with Section 2.03 of the Lease.
(4) Delivery of Premis*94 Common ment of Tenant's Work.
Not less than ten (10) days prior to the Construction Commencement Date, Landlord shall give Tenant notice that
the Premises have been sufficiently completed to permit Tenant's Work to begin as of the Construction Commencement
Date. Tenant shall thereupon notify the Tenant Coordinator of the date of which Tenant's contractor Intends to commence
construction and the date on which Tenant's Building Permit was issued. At such time as Tenant's contractor is prepared
to commence work, the Tenant Coordinator shall deliver possession of the Premises.
For each day that Landlord fails to properly give Tenant notice that the Premises have been sufficiently completed
to permit Tenant's Work to begin (and in lieu of any other remedy for failure to give notice), Tenant's Construction
Commencement Date shall be extended for one day, but shall In no event extend beyond the date on which Tenant
actually commences construction.
On or before the Construction Commencement Date, Tenant shall deposit with Landlord a certificate of Insurance
as required in Article 11, Tenant's building permit and shall commence Tenant's Work and proceed diligently and
continuously to completion including installation of fixtures and equipment in the Premises, Further, Tenant shall permit
Landlord to commence or continue (if Landlord has already commenced) the work specified in " "
and any and all work necessary pursuant to Exo lxttibit b . Section C with
Landlord's construction work nor permit its contractors or subSection C contractors 2o so interfere. shall not unreasonably Interfere with
(5) Certificate of Occupancy, must
l required sufficient time to allow Tenant alto open the Premises in accordance with the oopen ng ereq i emoents of thisLease d and will
deliver copies of the certificates to the Tenant Coordinator.
(6) Tenant's O6lbgation
Landlord's Work is limited to that required of Landlord by this Exhibit "D" and Tenant shall be required to make all
improvements to the Premises in accordance with Tenanrs Final Plans (as approved by Landlord) except those which
Landlord is specifically required to make hereunder.
Within thirty (30) days after Tenant is open for business in the Premises, Tenant will submit to Landlord all of the
following documents relating to work that has been performed by Tenant or Tenant's contractors in the Premises.
(a) An affidavit of Tenant's general contractor that all work in the Premises has been fully completed in
accordance with the Final Plans approved by Landlord and that all subcontractors, laborers and materialmen engaged In
supplying materials for the work have been paid in full.
(b) Property executed and acknowledged Releases of mechanic's liens with respect to the Premises executed
by Tenanrs general contractor and by every subcontractor and supplier of labor and materials engaged in the work.
(c) A set of approved hard copy "as-built" plans and specifications for the work done by Tenant, prepared and
sealed by Tenant's architect, together with a complete set of Tenant's "as-built" sprinkler plans, as well as ACAD 2005
format Awg files on cd-rom; submitted to Owner's architect in addition to Owner.
(d) Copies of all required Certificates of Occupancy.
(e) A fully executed copy of the Completion Certificate In the form attached to the lease.
(f) Original certificates of insurance per lease standards.
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May 18, 2005 1 MosUJTF 45
;-J AML
1,01
EXHIBIT "E"
FAST FOOD CLUSTER TENANT EXHIBIT
This FAST FOOD CLUSTER TENANT EXHIBIT (the "FFC Exhibit") is annexed to and made a part of the
Shopping Center Lease (the "Lease") by and between PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord, and
SEVEN HILLS, INC., as Tenant for those Premises designated currently by Landlord as Tenant Store Number FC1 (the
"Premises") in Capital City Mall and is executed of even date with the said Lease.
In the event a conflict arises between the provisions of this FFC Exhibit and any other part of the Lease, the
provisions of this FFC Exhibit shall modify and supersede the conflicting provisions of such other part of the Lease to the
extent necessary to eliminate such conflict but not further. All terms which are defined in any other part of the Lease shall
have the same meaning when used herein.
ARTICLE 1: THE FOOD COURT AREA
Section 1.01: THE FOOD COURT AREA.
The "Food Court Area" (sometimes referred to in this Lease as the "Fast Food Cluster") means and shall be the
area specifically designed for small restaurant operations situated in the Landlord's Building, including, without limitation
the individual premises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area.
Section 1.02: FOOD COURT SEATING AREA.
The "Food Court Seating Area" means and shall be the portion of the Common Areas which is made available by
Landlord for seating purposes and shall be for the non-exclusive use by customers and patrons of the Food Court Area.
Landlord shall furnish and install equipment, floor covering, lighting fixtures, decorative and permanent fixtures, ceiling,
tables, chairs, accessories and other property in the Food Court Seating Area. Landlord shall be the sole owner of said
fixtures, equipment and property, and shall have the right to make changes from time to time In the size, shape or location
or both, of the Food Court Seating Area and In the number, type and style of any or all aspects of the facilities, equipment
and other property therein.
Section 1.03: CHANGES BY LANDLORD.
As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature
and extent of the Food Court Area and of making such changes, rearrange
and
thereto from time to time which In its opinion are deemed to be desirable a for the best i te^ rest orf ausignificantrnumber
of the persons using the Food Court Area or which are made,
federal, state or local, environmental or other law, rule, regulapursuant to tion, guideline, judgment of or this order. Lease' as Landlord result of any
however, change materially the dimensions of the Premises. 1 ord shall not
Section 2.01: USE.
ARTICLE 2: USE
Tenant shall use the Premises solely for the preparation, sale and delivery of food to the public for "carry-out" or
for consumption in the Food Court Seating Area. Tenant agrees to sell only those food items specifically enumerated in
Section (n1 of the Fundamental Lease Provisions (those food items hereinafter sometimes referred to as the "Menu") and
to maintain the highest standards in quality, portions of servings, and preparation of such food Items. Tenant agrees to
offer for sale each of the enumerated food items on the Menu and any failure to sell any of the Items on the Menu or any
substitution for or addition to such Menu without Landlord's specific written approval shall be deemed an Event of Default
pursuant to fiction 18 01 of this Lease; and, in addition to any other rights or remedies pursuant to this Lease, Landlord
shall specifically have the right to terminate this Lease if Tenant violates this provision.
Section 2.02: DISPOSABLE PRODUCTS.
For the purpose of serving food and beverages to the public, Tenant agrees to use only disposable paper or other
equally degradable goods and utensils, including, but not limited to, cups, wrap materials, plates, trays, boats, straws
bags, napkins, spoons, forks, knives, stir sticks and the like (collectively the "Disposables"). Landlord shall have the right
to develop a uniform design for all such Disposables as may be required In the operation of the Food Court Area. All
Disposables shall bear the name and/or logo of Tenant, or the uniform design developed by Landlord, If any. Tenant
agrees, in any event, to use only Disposables of the type, size, material and color approved by Landlord. Tenant shall not
be required to purchase such Disposables from Landlord, but Landlord may, for the convenience of both parties, develop a
local source of supply. Tenant shall at all times have the right to develop its own source of supply for such Disposables,
provided only that the Disposables meet the requirements stated herein.
Section 2.03: EMPLOYEE DRESS AND CONDUCT.
Employees shall at all times be required to present a clean and well-groomed appearance and shall wear
uniforms, the color and style of which are to be subject to Landlord's approval. Tenant may make such arrangement with
Employees as it deems appropriate regarding the purchase and maintenance of standard uniforms. However, Tenant
shall require its standard uniform to be worn by all Employees at all times while on duty in the Premises. Landlord may, at
any time, direct Tenant to require any Employees not so attired to immediately conform to the requirements or leave the
Premises.
Sbarro-CapitalCity-Final
May 18, 2005 1 Most/JTF 46
It Ah
ARTICLE 3: OD COURT CAM SUM S FOOD COUR CHARGE
Section 3.01: FOOD COURT CAM SUM.
As a tenant of the Food Court Area, Tenant agrees to pay and shall pay to Landlord, commencing on the Rent
Commencement Date and each and every month and as Additional Rent thereafter throughout the Term, Tenant's share,
as hereinafter set forth, of the "Food Court CAM Sum". The term "Food Court CAM Sum" means and shall be all sums
incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping
Center in connection with the operation and maintenance of the Food Court Seating Area (as the same Is reduced,
expanded or otherwise altered from time to time) including, without limitation, the following: (a) the cost of operating,
maintaining or repairing any HVAC equipment specifically installed to serve the Fast Food Seating Area; (b) the cost of all
insurance specifically required for the operation of the Fast Food Seating Area (including, without limitation, insurance
against fire and other casualties, bodily injury, personal injury, property damage, product liability, sign Insurance and any
other insurance required to be carried by Landlord for the Fast Food Seating Area; (c) the cost of maintenance, repair
and/or replacement of interior landscaping, decorating, lighting, lighting systems, electrical systems, plumbing systems,
HVAC System and any other systems serving the Fast Food Seating Area; (d) the cost of trash, rubbish and garbage
removal service; (e) cost of sanitary control; (f) the cost of maintenance, repair and/or replacement of furniture and
fixtures; (g) the cost of all supplies and equipment necessary properly to clean, operate or maintain the Fast Food Seating
Area; (h) the cost of all personnel required by Landlord satisfactorily to supervise, Implement, maintain or operate the Fast
Food Seating Area in a high standard of cleanliness and efficiency; (1) the cost of any security personnel that may be
required by Landlord specifically for the Fast Food Seating Area; (j) amortization of the furniture, fixtures and equipment of
the Fast Food Seating Area; (k) the cost of any other item or personnel deemed by Landlord necessary to operate or
maintain the Fast Food Seating Area in a first class manner, and (1) Landlord's supervisory charge in an amount equal to
fifteen percent (15%) of the total aggregate cost of operating and maintaining the Fast Food Seating Area, including,
without limitation, those things listed hereinabove. Landlord may have heretofore elected to spread, and may hereafter
elect to spread, the amount of certain items of the Food Court CAM Sum over such period of years as Landlord shall
determine by amortizing them over such periods Instead of including such amounts entirely in the year in which expended
or incurred, in which event, the annual amortization amount shall be deemed to be an expense incurred during each year
of the amortization period, notwithstanding that such expenses may have been expended or Incurred prior to the execution
hereof.
Section 3.02: FOOD COURT CAM CHARGE.
Tenant's share of the Food Court CAM Sum (the "Food Court CAM Charge") shall be equal to three percent (3%)
of Tenant's monthly Gross Sales. Tenant understands and agrees that the CAM Sum set forth In Article 8 of this Lease
does not include the Food Court CAM Sum and Tenant's obligation to pay the Food Court CAM Charge shall in no way
reduce Tenant's obligation to pay Tenant's CAM Charge as set forth in Article 8 of this Lease.
Section 3.03: PAYMENT OF FOOD COURT CAM CHARGE.
(a) Tenant shall pay to Landlord, as Additional Rent, Tenants Food Court CAM Charge. Tenant shall pay
Landlord within twenty (20) days after the end of each calendar month Tenant's monthly Food Court CAM Charge. Tenant
shall submit payment along with the Monthly Report as set forth in Section 4.06(a).
(b) Deleted.
(c) Deleted.
(d) Tenant acknowledges and agrees that Tenant's Food Court CAM Charge is in addition to not only
Tenant's CAM Charges but also Tenant's Utility Charges pursuant to Article a of this Lease, Tenant's Tax Charges
pursuant to Article 5 of this Lease and all of the other charges set forth, without limitation, in Page I of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this FAST FOOD CLUSTER TENANT
EXHIBIT as of even date with the Lease.
LANDLORD:
PREIT SER ES, LLC,
Agent for APITXVITY JJITED PARTNERSHIP
BY:
PH F.
P IDEN'
TENANT:
SEVE HILLS, INC.
By: mLl J d 1 k -1 VJAMJX
Title: Wl- l PAY-,
Attest:
Title:
Sbarro-CapitalCity-Final
May 18, 2005 \ Most/JTF 47
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04:16:18 P.m. 01-08-2008
717 737 0607
STATEMENT Dew 11612006
Acoaae - 795330
sw.,w4 No. 260680
Pape- '
Fmm: CAPITAL CRY MALL
PR CAPITAL CITY LIMITED PARTNERSHIP X08 CAPITAL CITY MALL OR
teaks Cheek
PO BOX 82406
CAMP HILL PA 17011 7003
PaYabla TO:
CLEVELAND OH 44193
Tenant: Sband
To: Sbaao
AOrc Raphu TedavadhY
9900 TtNdle Road
Sulls 200
Camp Mil PA 17011
Aaw.n Remitted:
FOR a4OWZES CALL: ,halo Vega TEL: 717-7374276 or FAX 717 737- MO7 RON bop portion with pv/wA*•
CHARGE DETAIL
cgm*lCRYMae Sbarro PaYm nb
Cwm 8ehrrc' Cwac_ ranOW
Ilwoitaoak! SMCode Deacription , ?- AO
saw"Fomwd 34&v 28854
UV2m x'27
72126f2005 XCAM Exom CAM
2004 (19166) (19268) ?8951
1212812005 XRE 2004 Eam" ftE Tax
122.36 122.36 28954
912008 XSEC 2004 Excess SEC 14821
1/
121412006 XSEC 2006 Exwss SGCWW 146.21
1
146 126220
,
12/812008 XCAM 2005 Exaas CAM 2
1 14.90
12!7/2006 XRE 2005 Exoasa RE Tax 420
1 106.36
5/31/2007 XRE 2005 Excess Tax adjusknent .9E
108
lase 00024156
CopMatCOYMall Shano Pserwo 8aloaos Chm*Numbs!
Inypba pab BW Code
Owor"m
Ch"es --
AO
111/2009 Balance For*Wd 30.00 90.00
611612005 SEWA Senor
5615 36.15
513112007 XRE 2006 Exons Tax m4usl1w, 45790
Wy2007
XRE 2006 PET RaooncSEW 46720
1,19127
60/2007 XFDC Oelobw 2006 Food Coull CAM 1,19127 56.40
72007 STAX Swe Tax 59.40
973.40 973.40
-14=7 ELEU Electric 26.61 26.84
7116f20o7 ELFP Electric PEMNY 336.82
5 3,336.62
7/512007 XCAM 2006 CAM PW-ifillf- , 1,211 A7
9f212007
FOCT
$40.389.07'3% 1,211.07
94528
10/5011007 FOCT 631,509.15' 3% 94528 55.95
11!292007 STAX Slam Tax 932.49 932A9
112912007 ELFU Ekrclnc 687.93 667.93
1 1 12 9120 07 GAS LP Gas
4128 4120
112911007 STAR Skda Tex 1,089.33 1.099.33
1 112 712 0 0 7 FDCT SWJW.42' 3% 29839 286.39
1213112007 GAS LP 00 17.90 17.90
12f31E007 STAR Stale Tax 997.06 WAG
12+3112007 ELEU E*dw 5982 59.82
12/3112007 STAX Slate Tax 479.14
1 1.479.14
12/282007 FOCT 649.304.62 '3% ,
97.88 97.08
1f12006 RE REAL ESTATE TAXES 614.15
1nno9a CAM CAM ESCROW 614.16
7,08325 7 09325
7112006 RENT mwimuMRENT .03
1/7/2008
FOCI FOOD COURT CAM .03
50.00
IlVM8 EMF EnewVAnap "m Fee ?? 90.53
V1/20118 MKFD u,&," Fund 90.B3 i
2110
EXHIBIT 2
01-08-2008 3110
04:16:32 p.m.
717 737 0607
STATEMENT
Day . wa20D6
Accaa4. 735330
Slatemem No - 260650
pays- 2
CI"M DETAIL (.ease 00024150
swrro capital (*y mall paynkana Balance CMeN` K
- --- -r-
tr 1 ail code Dasoviion
- -
pAWdENTS SECTION
Gll pate peeuiprion
?-
1112120a Payment Redd -Thank You
IrMZOD4 paymenlReed -Thank You
1120,2004 payment Recd - Thank You
2112I2OD4 payment Recd -TMM Ycu
Zr4WZOO4 peymkintWd-Thank You
y4r
?004 paymwd Reed . Thank You
X04 parwdReed -Think You
4112004 Payment Redd - Thank You
41520D4 payment Recd - Thant You
4112M004 Payment Reed -Thank You
N121Z004 PaymeM Reed -Thank You
4111IM" pepmntRecd-Thank YOU
42112004 P4ynkeM Reed . Thank You
5,1012004 paymanlRecd-Think You
51k72004 Pa7x*MRacd Think You
5117/2004
6,912004 peynwld Rac'd - Thank YOU
QN42004 pay-MRaCd-ThinkYcu
62V2004 pay -1Wd-Thank 11
71912004 Payment Recd - Thank You
7n320D4 Payment Recd • Thank You
71192004 Papoen Reed . Thank You
71f6120D4 PaymaM Reed _ Thenk Yeu
?r4r,W4 paynaMRicd-ThenkYou
6,192004 payment ft" - Thank You
8,192004 payment Redd -Think YOU
91162004 Payment Recd - Thank You
91172004 pap.W Redd - Think You
qQW2004 payment Recd - Think You
1 W12004 paymaM R-W - Thank YOU
1W4J2004 PayatentRecd-TWIIYOU
1W1zR004 payment Reod-Think YOU
102012004 paymonl7tae`d -Thank You
10 Wr6W paymsd Reed - Think you
1111512004 parmtRoed -Thank You
11/152004 payment Redd - Thank You
111182004 palvwjItecd-Thank You
121102004 p p_l Redd - Thank You
1211612004 paytaanl Reed - Think You
12202004 Payment Rood - Thank YOU
1152095 paimenlRea -Thank You
11132005 "KA Recd -Thank You
11182005 paymahlRea-Think You
11212005 Payaw d Redd - Thank You
211 4 12 0 0 5 payawet Racd - Thank You
21142005 pay-( Reed - Thank You
2,152005 payawrt Reed - Thank You
2202005 payment Reed-Thank You
3172005 paynwnt Reed - Thank You
31112005 Payment Recd - Thank You
3n512005 Payment Reed - Thank YOU
PaynwMS _ Check lk=6er
7,740.61 19522
4,551.74 19526
1,243.10 19596
7.736.19 19755
1309A7 19963
1,027.69 19932
7.736.19 19961
630.95 2D138
974.46 20165
1.05326 20255
7.736.19 2D249
1,29851 20279
1.298116 19980
7.735.19 2D465
1,109A7 20501
1267.10- 20489
T.738.19 20685
595.66 20693
412A7 20750
954,35 20655
7.738.19 20572
1,322.10 20679
491.16 20888
1267.10 20489
1,27433 21159
7.T52A2 21t71
1,489,36 21399
745.22 21353
7,738.19 21369
46739 21377
66.91 21466
7,739A5 21477
1,316.94 215M
1,13630. 21559
1.40019 21764
1,21735 21748
7.79892 21761
7,73892 21969
1,691A5 22D08
1,234.85 22109
52.96 22143
7,73&92 22264
2,709.99 22292
1.590.77 22395
900.44 22625
7.754.83 22536
1,062.17 22848
595.32 22557
7.944.24 22756
1,425A3 22604
1.032.34 22865
VOD
Bdana_
7.74031
12.202.55
13.515.65
21.267A4
22,593,31
23,021.00
31.350.19
31,998.14
32,912.82
33.985.88
41.70497
43,002.60
44,298.64
52,036.63
63.145.84
S1A78J4
56,616.90
60.212.68
80,625.06
.61.479.41
e&217A0
70.539.70
71.070.66
72.297.96
73.672.49
61.325.31
62.811.67
63.556.49
91.266.011
91,782.17
91.649.06
wAN.73
100.905.67
192,041.97
103,442.78
too 880.11
112.199.03
126,137.95
MA SA I
123,064.25'
123.117.23
130,656.15
133,566.14
136.156.91
136.057.35
143.812.23
144.694.40
145.492.72
153,{3&96
164A62.39
155A94.73
01-06-2006 4 MO
04:16:57 p.m.
71 7 737 0607
E
t
E
Date- 1184008
STATEMENT ^t- 735X14
30680
SMtamsntNo- 2
pap - 3
PAYMENTS SECTION
R
mat aaance
Ch..N-.b-
Pam a 155,956.07
Desuipbm+
CAL Data -
61.34 22914 163.99.31
4MMS Payment Redd -Thank You
7.844.24 22994
1e,t77.91
iRec'd - Tha+dtYOU
41712905 Paymen 1.277AO 23086 168.577.29
411512906 payment Redd - Thank YOU 389.36 23114
1
17x,921.53
Recd - Thsl4cYou
41152095 Payment ,
7
mnl Rand - Thank YOU
5 pa 7,744.24 2328 175,790.40
j
y92pp t 46647 29367
176,938A8
5,18-2005 Payment Recd - Thank You 748.28 23376
1 181,882.92
5,1612005 Pey_o R-d - Thank You .
7,944.24 2]582
186,264.44
payaaot Reed . Thank YOU
?? 7.571.52 23715 787,364.75
6212095 Payment Reed - Thank You 1,110.31 23714 187,531.72
W212005 Paymeid Reed . Thank You 166.97 29758
195,475.98
pay--t Recd • Thank YO
7112005 7.944.14 23861 198.86628
711 VAOS payment Recd - Thank YOU 1.39032 27993 198948.40
7178!2005 Paynwnl Recd . Thank YOU
183.12 23988
1
208,994.83
Payment Redd - Thank You
7/1912005 .
7,94424 24156
207,314.89
WrA,05 payOant Radd • Thank YOU
1Rec'd-ThankYou
oris2005 Paymen 1,32049 24304 208410.88
B411Y2005 ant Redd - Thank You 69693 24942 208„809.49
S98A9 24344 24060525
8127/2005 paV,,o edd•ThankYOU 7,94414- 24755 VOD
200,086.42
8(112005 WAS- 24344 7/0D 200.188.27
W1120D5
919095 ftrwntRec'd-Thank You 12(125 24485
1?OD 192,242.43
7.944.21- 24619 199,088,24
911212005 846,91 24659
193,879.15
9,2U2B65 parwt Recd - Thank You
9127!2005 Payment Redd -Thank You 791.01 24739 196.887.18
W3WWS Payment R«d - Thank YOU 1,80793 24769
NSF
194,48,7.14
1,204.04- 24896 202,427.98
!01282008
11/7/2005 Paymeot Roe'd - Thank You 7.944.24 24619 202,566.64
/11Y5RM Payment Reed - Thank You 12828 25971 204.086.58
17/1112405 payawdRI"'Thankyou 1.47924 25638
4 204.889.54
1 211 612 0 0 5 Paymnd Reed - Thank YOU 86422 2852 206.438.51
Rec'd•ThalYcYau
412046 parmM
1 1.748.74 27244 207rµ2,58
2
1
2/132448 paynantRadd-Thw*You 1.2404 26883
208.67
Redd .Thank You
3H0,2006 Parmhd
1.029.02 26951 .61
210,009.81
41/712406 payment Redd' Thank YOU 1,335A1 MM
VOD
N'"
1.143.02• 2630! 214,245.47
41172406 338.68 26782
1
211,316.84
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52412046 peymentFwd-Thank You 1,117.17 28177 212,344.61
i Recd . Thank You
?? Parmn 10024 24652
7/OD
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20
7.421.13- 26954 T4
6.
246074.4
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84192006 paymm R4d0 . Thank You 1,134.33 28949
30
208.14.4
Tom paymnd Redd . Thank You 90.40 279 207.147.91
Recd -Thank You
7132006 Payment 1.043.90 27696 ?O?gp-85
7/1826 PmedRcd-Thank You 1,14392 26901
Zt149823
7/184006 Payment Reed - Thank You 9,207.27 28105 212
725/2006 Payment Recd - Thank YOU
1,058.19 28591 AMA
213,84.18
81712006 Payment Redd -Thank You 1.142.16 28677
228,371.40
s,arm paymxd Redd - Thank YOU ,671.22 1 28636 23041.69
t Racd - Thank You
a214096 Parton 1
(,014.29 28886 238221.60
9/144006 Payment Redd. Thank You 7,835.81 28779
239,954.40
t Recd . Thank YOU
941821106 paym.tt 1,132.80 28796 240,655.59
10/12008 payme,d Reed -Thank You 1,391.13 28826
241758 87
(Redd-Thank YOU
702012406 parnen 1,101.34 28940 249,592.78
101202006 payment Redd - Thank YOU 7.35.91 28914
280.11676
104712498 payment Redd -Thank YOU
30,529,98 28974
287,537.89
1013V2006 Payment Redd -Thank YOU -13 26954
7.421 292.696.49
111132006 payn ent Redd - Thank You .60300 94
166
5,
04:17:22 p.m. 01-08-2008
717 737 0607
1
VNpm
STATEMENT AmUnt Mix
Stafmnant NO . 280880
Page . 4
5/10
PAYMENTS SECTION 8ahnee
on Payments ChadcNUmber Rmnadc
293887.77
GIL Date OosonP
1124f2006 Payment Reed - Thank You 1.19128 30121 294,826.61
11272006 Payment Reed - Thank You 936.94 39129
3111.998.4
t Reed • Thank You
121812006 Paymen 15 87182 30191 311910.99
9
12262006 payatent Recd - Thank You 1.41258 30228
313.109.90
112!2007 Payment JtWd - Thank YOU 1,(98.91 30305. 31072.10
118f211D7 Payment Reed . Thank You 967.50 30072
3+7 905.115
V128007 Payment Raod - Thank You 3.832.65 31012 327988.33
711 512 0 0 7 Payment Recd - Thank You 10,08728 31371 335,802.71
21152007 Payment Redd - Thank You 8.91038 31545
339.004-06
3tl VM7 Payment lt4C•d - Thank You Z,101.35 82034 358.628.11
44=7 Payment Redd - Thank You 1OX4.D5 32109
35607.41
4120120D7 Payment Reed • Thank You 1,059.30 32!21 358,318.44
48812007 Payment Reed - Thank You 628.03
1 ,60.03 32111
5/1&2007 payment Reed - Thank YOU 1,942.45 32208 389,249.79
5121!2007 Paymen!Reed -Thank YOU 6,991'90 32235 3771085.70
&1&2o07 Payment Reed • Thank You 835.91
7, 32293
381,550.94
7!112007 payment Recd • Thank You 4,46524 32335 397.222.78
&912007 Payment Reed-Thank You 15,67+.82 32457 401657.61
BMWMT paynantt'taed-Thank You
4.494.85 6!
324
403624.28
&2712807 Payment Reed • Thank YOU 2.168.97 31875 418,49610
10/192007 Paymant Reed - Thank YOU 15,87122 31987 422,815.22
1011912007 payment Recd - Thank You 3,019.12 31988
424,400.89
j21Reed-Thank You
3r1007 ?? i.USST 32586 440.07271
1213!2007 Payment Redd • Thank Yw 15,671.92 32560
A22MMT SUMMMY BaMnm Prior To 11Ylm03 .00
plus Cha9esFmm 1/V2003 23,578.70
Less Payments lCmdb Flom 1 irm AO
AMOUNTDUZ= 23 ti
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SCANNED
JL(K(mr tS?
LEASE AGREEMENT
BY AND BETWEEN
PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord
and
SEVEN HILLS, INC., as Tenant
TRADE NAME: TACO BELUKFC
KFC-CapltaiCit l
September E X H I B I T 27, 2005 1 Pirse/ Plree/JTF
? h
Alk
,, .NDAMENTAL LEASE PROVISIONS
This Lease is executed and made as of -DeC.Clr+'1'0eV g 2005, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP, a Pennsylvania limited partnership (herein called "Landlord") and SEVEN HILLS, INC., a
Pennsylvania corporation (herein called "Tenant"), Landlord and Tenant having the following notice addresses:
1
i
1
•1
Landlord:
PR CAPITAL CITY LIMITED PARTNERSHIP
Go PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
Attn: General Counsel
Tenant:
Seven Hills, Inc.
1104 Ferwood Avenue
Suite 304
Camp Hill, PA 17011
Attn.: Raghu Tadavarthy
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
Management Office
3506 Capital City Mail Drive
Camp Hill, PA 17011
Attn: General Manager
Copy to:
Seven Hills, Inc. t/a Sbarro
Tenant Store Number FC 1
Capital City Mall
3506 Capital City Mall Drive
Camp Hill, PA 17011
Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto,
subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease:
(a) Tenant's Trade Name: Taco Bell/KFC
(See Sec. 7.01)
(b) Rent Term: One Hundred Twenty (120) months commencing on the Rent Commencement Date. The Rent
Term expires on the last day of the One Hundred Twentieth (120") month following the Rent Commencement
Date (the "Expiration Date"). (See Sec. 3.01)
(c) Tenant Store Number: FC-4 (See Exh. A)
(d) GLA of Premises: 920 square feet (See Sec 104)
(e) Design Drawings Submission Date: September 1, 2005
(See Sec. 2.03)
(f) Tenant's "Construction Commencement Date": December 5, 2005
" (See Sec. 2.03)
&
Construction Period": Sixty (60) days from delivery (See Sec. 2.03)
(g) Minimum Rent:
Time Period Annual Amount Monthly Amount
Rent Commencement Date
through the 60th month $44,997.20 $3,749.77
From the 61" month
through the end of the Term $49,992.80 $4,166.07 (See Sec. 4.03)
(h) Percentage Rent:
Time Period Break Point The "Percentage"
Rent Commencement Date
through the 60°i month $562,465.00 Eight Percent (8%)
From the 61" month
through the end of the Term $624,910.00 Eight Percent (8%) (See Sec. 4.04)
0) Required Opening Date: Sixty (60) days from the later of (1) Landlord's delivery of possession of
the Premises to Tenant, and (ii) Tenant's receipt of all permits required for the completion of Tenant's Work
so
long as Tenant timely applies for such permits and diligently pursues the same ,
(See Sec. 4.02)
(j) Security Deposit: N/A (See Sec 2.02)
(k) Marketing Service Charge: $1.50 per square foot of the GLA of the Premises per Year (See Sec. 9.01)
Minimum Advertising Charge: N/A (See Sec. 9.02)
Taco13e11-KFC-CapitaICIty-F1nal
December 2, 2005 1 Piree/JTF
2
. P, Am
r FUNDAMh" fAL LEASE PROVISIONS (CONT'D)
(1) Certain Other Charges Payable by Tenant:
Tax Charge (See Sec, 5.01)
Services Charges (See Sec. 8.01)
Refuse Handling Charge (See Sec. 8.03)
CAM Charge (See Sec. 8.03)
Special Assessment (See Sec. 9.01)
(m) "Agent" and To Whom Rent Payable:
PR Capital City Associates LP
P.O.Box 844052
Pittsburgh, PA 15284-4052
(n) Use: Tenant shall use the Premises solely for the purpose of conducting the business of: the operation of a
Taco Bell/Kentucky Fried Chicken (aka KFC) Restaurant. The menu will include Mexican Items sold by Taco Bell
In the United States or the Philadelphia region Including, but not limited to, tacos, burritos, nachos, fajItas, gorditas,
Mexican pizza, kid's meals, desserts, beverages, similar Items and other Items as may be introduced by Taco Bell
from time to time, which do not then violate any exclusive at the Shopping Center. Tenant's menu may also
Include Items sold by KFC in the United States or Philadelphia region Including, but not limited to, chicken
sandwiches, chicken strips, hot wings, barbecue wings, Kentucky nuggets, chicken on the bone, side dishes,
biscuits, muffins, fries, kid's meals, desserts, beverages, similar Items and other Items as may be Introduced by
Kentucky Fried Chicken from time to time, which do not then violate any exclusive at the Shopping Center.
(See Sec. 7,01)
TacoSell-KFC-CapitalCity-Final
September 27, 2005 i PireelJTF
LASE AGREEMEN
ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1,01: REFERENCES AND CONFLICTS.
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 shall be construed to Incorporate all of the terms provided for
under such provisions, and such provision shall be read In conjunction with all other provisions of this Lease applicable
thereto. If there is any conflict between any of the Fundamental Lease Provisions and any other provisions of this Lease,
the latter shall control. The listing on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not
be construed to be an exhaustive list of all charges or the amount thereof payable by Tenant under this Lease.
Section 1.02: GENERAL DEFINITIONS.
(a) The term "Shopping Center" means the land shown on Exhibit "A" attached hereto and by this
reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time.
(b) The term "Mail Premises" means the Shopping Center excluding however the Majors' Premises and the
term "Mall Premises" Includes the same as reduced, expanded or otherwise altered from time to time.
(c) The term "Landlord's Building" means the buildings, structures and other Improvements shown in
general on Exhibit "A" and Includes the "Enclosed Mall" (hereinafter defined), but excludes the Majors' Premises
(hereinafter defined). Landlord's Building Is part of the Mall Premises. The term "Landlord's Building" includes the same
as reduced, expanded or otherwise altered from time to time.
(d) The term "Majors' Premises" (or "Majors Premises") means the premises shown on Exhibit "A", page 1
by such term, or by the word "Major" or name of the prospective or actual principal occupant thereof (the "Majors" or a
"Major"), and the term "Majors' Promises" (or "Majors Premises") Includes the some as reduced, expanded or otherwise
altered from time to time. The term "Major" (or "Majors") Includes any replacement for or other substitute of the primary
occupant of a Majors Premises as well as, in the case of an expansion of the Shopping Center, the primary occupant of
the premises equal to or exceeding, In terms of GLA, the GLA of any one (1) of the Majors' Premises shown on Exhibit
"A" (even though those premises may not be originally shown thereon). References In this Lease to a Major or Majors
shall Include any such replacement, substitute or additional Major and Its premises are included within the terms "Majors'
Premises" and "Major's Premises".
(e) The term "Common Areas" means all areas, facilities and Improvements operated or provided at or In
connection with the Shopping Center from time to time for the non-exclusive common use of Landlord, the tenants of the
Mall Promises and the Majors, and shall Include but not be limited to the "Enclosed Mall" (hereinafter defined), parking
areas, roadways, ramps, trafflc controls, truck ways, loading and unloading docks, delivery areas, sidewalks, stairways,
escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer areas, screening facilities,
merchandise pickup stations (excluding those of Majors, If any), public rest rooms and comfort stations, retaining walls,
landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force
mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage
systems, and lighting systems. The term "Common Areas" includes the same as reduced, expanded or otherwise altered
from time to time.
(f) The term "Enclosed Mall" means the enclosed climate controlled pedestrian mall located in Landlord's
Building, and the term "Enclosed Mall" includes the same as reduced, expanded or otherwise altered from time to time,
(g) The term "Premises" means the space demised by this Lease and situated in Landlord's Building which
space Is In the approximate location marked on Exhibit "k, however, the Premises Is limited vertically to the ceiling
height above the structural floor set forth In Landlord's "Store Design Criteria" (defined In Section 2.03(b) hereof), In the
event the Premises Is a corner location, the Premises shall exclude any rights with respect to the exterior side wall of the
Premises.
(h) The term "Fast Food Cluster" means the area or areas now or in the future specifically designated by
Landlord for small restaurant or other food service operations situated in Landlord's Building or elsewhere In the Mall
Premises, Including the Individual premises and any seating areas located therein and the maintenance and housekeeping
areas primarily serving the Fast Food Cluster. The term "Fast Food Cluster" Includes the same as reduced, expanded or
otherwise altered from time to time,
(1) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best
estimate of the number of square feet of area on all floors In Landlord's Building for the exclusive use by the tenants or
other occupants thereof and their customers, clients or other Invitees Including without limitation mezzanines and
balconies If used for the sale of goods and/or services (but excluding all other areas and space defined herein as part of
Common Areas). GLA of the Premises shall be measured from the exterior face of exterior walls and the exterior face of
service corridor walls, the line along the front of the Premises where the Premises abuts the Enclosed Mall as shown on
Exhibit A (which line Is commonly known as the "Lease Line"), or the Lease Line of any pop-outs referred to In Section
1.04, as the case may be, and the center line of any wall Tenant shares with other tenants or occupants of the Landlord's
Building or a Majors' Premises. With respect to all leasable areas other than the Premises, GLA shall be determined by
virtue of the definition contained in the lease In question. No deduction from GLA shall be made for columns, stairs,
elevators, or any Interior construction or equipment. From time to time during the Term, Landlord may give Tenant notice
of the GLA of Landlord's Building, at a given time for a given period of time, as such GLA may be revised because of
reductions, expansions or other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions
in the leases of other tenants or occupants. The GLA of the Premises and of Landlord's Building shall be utilized to
calculate the GLA Fraction (defined in Section 1.020) and to make any other calculations required to determine the
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change§ to Tenant.
Q) The term "GLA Fraction" means a fraction, the numerator of which shall be the GLA of the Premises and
the denominator of which shall be the occupied GLA of Landlord's Building, subject, however, to the provisions of Section
4.08,
In the event that the occupied floor area of Landlord's Building falls below seventy-five percent (75%) of
the leasable floor area of Landlord's Building (less any Junior Majors), Tenant's charges for Additional Rent shall be
calculated as though seventy-five percent (75%) of such floor area were occupied.
(k) The term "Junior Major(s)" means an occupant, (not herein identified as or otherwise hereunder
constituting a "Major") which owns, occupies or leases (1) any building or ground not connected to Landlord's Building (e.g.,
a so called "out parcel") or that does not open on to the interior mall or (11) in excess of 15,000 square feet of GLA in the
Shopping Center and the term "Junior Major(s') Premises" means the premises in the Shopping Center owned, occupied
or leased by a Junior Major.
(1) The term "Lease" as used In this document (the "Lease") shall mean the Fundamental Lease Provisions,
the Lease Agreement, the Exhibits attached hereto and Addendum, if any.
Section 1.03: EXHIBITS.
The following plans and special provisions are attached hereto as Exhibits, are incorporated herein and hereby
made a part of this Lease.
EXHIBIT A Plan of the Shopping Center as presently constituted which plan also shows the approximate location of
the Premises.
EXHIBIT B Deleted,
EXHIBIT C Completion Certificate.
EXHIBIT D Landlord's and Tenant's Work in the Food Court
EXHIBIT E Fast Food Court Cluster Tenant Exhibit.
Section 1.04: GILA OF PREMISES.
The GLA of the Premises shall be that set forth in the Fundamental Lease Provisions. For the purposes of this
Lease, the Break Point and Partial Year Break Point are collectively referred to as the "Break Point".
Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop-
out" all or a portion of the storefront. Should Tenant install a pop-out storefront, the GLA of the Premises shall be
Increased to Include the square foot area of the pop-out(s). The Minimum Rent and the Break Point shall be accordingly
Increased, to Include the area of such pop-out(s).
Section 1.05: CHANGES TO SHOPPING CENTER.
As between Landlord and Tenant, Landlord may at any time and from time to time eliminate land from, or add to or
substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any improvements, or
change, enlarge or consent to a change in the shape, size, location, number, height, or extent of the improvements to the
Shopping Center or any part thereof, including, without limitation adding additional levels to any existing buildings therein.
Landlord agrees that in Implementing its rights pursuant to this Section, it shall not change the Common Areas so
as to materially restrict access to or visibility of the Premises from other portions of the Enclosed Mall, Tenant hereby
agreeing that any klosk, planter, bench and other amenities which are less than one hundred fifty square feet in size, eight
feet in height and located not closer than ten feet from the point at which Tenant's demising wall intersects with Tenant's
lease line shall be conclusively presumed not to so restrict access or visibility to the Premises.
Section 1.08: CROSS EASEMENT AGREEMENT.
Tenant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this
Lease, the Shopping Center Including, without limitation, the Common Areas and the Premises are and shall be subject,
subordinate and otherwise junior to any cross easement agreement (as they may be or may have been created, amended,
supplemented or otherwise modified from time to time) between Landlord and each occupant of the Majors or Junior
Majors who are parties thereto (such cross easement agreement being herein collectively called the "REA"),
ARTICLE 2: PREMISES AND TENANT'S WORK
Section 2.01: LEASE OF PREMISES.
Landlord, in consideration of the "Rent" (defined in Section 4.01) to be paid and the covenants to be performed by
Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at
the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein
as the Premises situated or to be situated in Landlord's Building, as the case may be.
Section 2.02: SECURITY DEPOSIT.
Deleted,
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r Ir
Section 2.03: PREPARATION OF PLANS AND TENANT'S WORK.
(a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept same In the "es it"
condition In which the Premises exist on the date Landlord turns over the key to the Premises to Tenant or Tenants
designee. Tenant further acknowledges that Landlord has not made any representations as to the present or future
condition of the Premises or what Items, if any, the present occupant of the Premises Is required to or may leave therein.
Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord
be liable In the event the existing occupant of the Premises falls to timely vacate the same, except that any delay in
occupancy shall extend the Required Opening Date specified herein for a period equal to the number of days between the
Construction Commencement Date specified herein and the date such former tenant vacates.
(b) Tenant shall perform all work required to be performed by Tenant to fully and completely remodel the
Premises and to adapt the some for Tenant's use, as such use Is specified and limited by the Fundamental Lease
Provisions, all such work being referred to herein as "Tenant's Work". Tenant shall design the Premises in accordance
with Landlord's current store and storefront design criteria booklet and otherwise comply with all requirements therein
(herein called "Store Design Criteria"), a copy of which Tenant acknowledges it has received. Tenant shall Instruct Its
architect or designer to prepare Tenant's plans for the Premises In compliance with the Americans with Disabilities Act, the
Clean Air Act and all other applicable laws, rules, codes, and regulations. In the event of any Inconsistencies between the
text of this Lease and the Store Design Criteria, the latter shall prevail. Entry by Tenant to the Premises prior to the Rent
Commencement Date shall be subject to all of the provisions of this Lease, except the duty to pay Rent but Tenant shall
pay for all utilities and services supplied to It during such period. Tenant agrees to perform Tenant's Work In accordance
with the provisions of this Lease and such manner so as not to cause any material Interference with the use, occupancy or
enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall promptly cause to be repaired all
Items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of
such damage and shall at all times keep all portions of the Shopping Center (other than the Premises) free from and
unobstructed by debris, equipment or materials related to Tenant's Work.
(c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(herein called the "Tenant Coordinator") for the Landlord's approval design drawings (herein called the "Design
Drawings") specifying each aspect of Tenant's Work and specifically the proposed storefront and signing, sample
materials to be used in the Premises and sign, and the interior layout of the Premises. The Design Drawings shall be
prepared In accordance with the Store Design Criteria. Within ten (10) days after receipt of the Design Drawings, Landlord
shall return to the Tenant the Design Drawings, either "approved", "approved as noted" or "disapproved"; If they are
marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before thirty (30) days after receipt
of the "disapproved" Design Drawings, Tenant shall resubmit to the Tenant Coordinator revised Design Drawings meeting
Landlord's objections. Landlord shall thereafter within ten (10) business days return the same to Tenant, marked as set
forth above and Tenant shall within an additional thirty (30) day period resubmit revised drawings until the same have been
"approved as noted" or "approved". On or before thirty (30) days after receipt of "approved as noted" or "approved" Design
Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working drawings and specifications
(herein called "Final Plans") for architectural, electrical, mechanical, sprinkler and plumbing work within the Premises and
all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the Store Design Criteria.
The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as noted" or "approved"
by Landlord, The Final Plans shall incorporate any revisions required by Landlord to the Design Drawings, including those
forming the basis of Landlord's approving the same "as noted". Within ten (10) business days after receipt of the Final
Plans, Landlord shall return to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved". If
they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall, on or before ten
(10) days after receipt of such "disapproved" Final Plans, correct any deficiencies stated by Landlord and resubmit within
ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or "approved". If Landlord
accepts Tenant's Final Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator,
but Tenant shall revise such Final Plans to incorporate Landlord's required changes and Tenant covenants that the Tenant
W
noted" Final Plans. If ork in the Premises shall be constructed in such fashion as to comply with the notes disclosed on such "approved as
required time period, such e failure shall constitute an Event of Default, provided Landlord's disapproval Final is reasonable andrin
good faith. Tenant's Work shall be performed only In accordance with the Final Plans, as marked "approved as noted" or
"approved" by Landlord. Tenant's failure to submit its Design Drawings on or before the Design Drawings Submission
Date or Tenant's failure to commence Tenant's Work on or before the Construction Commencement Date shall be an
Event of Default pursuant to Section 16.01 unless such failure results from Landlord's inability to deliver possession of the
Premises to Tenant on the Construction Commencement Date or Landlord's failure to approve said Design Drawings
within the time period provided for by this Section 2.03(c).
(d) Deleted.
(e) On or before the Construction Commencement Date, Tenant shall deposit with Landlord certificates of
insurance as required In Article 11 and a true copy of Tenant's building permit and Tenant shall commence Tenant's Work
and prosecute It diligently and continuously to completion including Installation of fixtures and equipment In the Premises.
Prior to the commencement of any Tenant Work or the delivery of any material to the Premises by any contractor,
subcontractor or matedalman (herein called "Contractor"), Tenant shall deliver to the Tenant Coordinator a signed,
acknowledged and sealed waiver of liens (herein called "Contractors Waiver of Liens") from each Contractor supplying
services In excess of One Thousand and 00/100 ($1,000.00) Dollars In the form specified by Landlord. The Contractor's
Waiver of Liens provides, among other things, that the Contractor waives any and all lien rights that it may have against
Landlord's estate, right, title and Interest in the Shopping Center and any part thereof including, without limitatlon,
Landlord's Building and the Mall Premises, Within thirty (30) days after Tenant's opening the Premises for business,
Tenant shall deliver to Landlord an executed Completion Certificate in the form attached hereto as Exhibit "C".
Landlord have the
such other notices as Landlord may deem to right be proper or the protection of the Premises notices of the Landlord on Landlords estate, right, title
and Interest In the Shopping Center and any part thereof. Tenant shall before the commencement of any work which
might result in any claim, lien or other charge give to the Landlord written notice of its Intention to commence said work In
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sufficient time to enable Landlord to poet, file a, . (record such notices. The provisions of action 2.03 shall apply with
respect to Tenant's Work or any other work performed In or about the Premises at any time during the Term hereof.
Section 2.04: OPENING OF PREMISES.
(a) Tenant agrees to open Its business to the public In the Premises no later than the Required Opening Date
specified In the Fundamental Lease Provisions.
(b) Tenant shall complete, or cause to be completed, Tenant's Work and the installation of fixtures,
equipment and merchandise no later than the Required Opening Date. If Tenant falls to open Its business to the public In
the Premises on or before the Required Opening Date, Tenant shall pay to Landlord, in addition to Minimum Rent and
Additional Rent, an amount equal Fifty and 00/100 ($50.00) Dollars for each day Tenant's business remains not open in
the Premises from and after the Required Opening Date (counting the said Required Opening Date as the first such day).
Any and all sums and other charges payable by Tenant to Landlord pursuant to the immediately preceding sentence shall
be paid on demand to offset administrative costs and expenses Incurred by Landlord as a result of Tenant's late opening
and shall In no way abrogate, or relieve Tenant from any of Tenant's obligations under this Lease, including without
limitation the obligation to open its business In the Premises, and Landlord shall have all other rights and remedies under
this Lease, at law and In equity, arising from Tenant's failure to open pursuant to this Section 2.04(b).
Section 2.05: MECHANIC'S LIENS.
(a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge
arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien
or encumbrance or other charge (collectively a "Charge") against or upon the Shopping Center or any part thereof,
Including without limitation the Mall Premises and Landlord's Building or the income therefrom. Tenant will not suffer any
other matter or thing whereby the estate, right, title and Interest of Landlord In the Shopping Center or any part thereof
including without limitation the Mall Premises and Landlord's Building might be Impaired. If any claim or lien or notice of
claim or lien on account of an alleged debt of Tenant or any notice of contract or Charge by a person engaged by Tenant
or Tenant's contractor to work on the Premises shall be filed against or upon the Shopping Center or any part thereof
including without limitation, the Landlord's Building or the Mall Premises, Tenant shall within thirty (30) days after demand
from Landlord, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent
Jurisdiction or otherwise. If Tenant shall fall to cause such claim or lien or notice of claim or lien or other Charge to be
discharged within the period aforesaid, then, in addition to any other right or remedy It may have, Landlord may, but shall
not be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord
shall be entitled, If Landlord so elects, to compel the prosecution of an action for the foreclosure of the same by the
claimant and to pay the amount of any judgment in favor of the claimant with Interest, costs and allowances. Any amount
so paid by Landlord and all Interest, costs and expenses, including attorneys' fees, Incurred by Landlord In connection
therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on
demand. Nothing herein contained shall obligate Tenant to pay or discharge any Charge created by Landlord.
(b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work by Tenant or
Tenant's contractor in or about the Premises, No work which Landlord permits Tenant to do shall be deemed to be for the
immediate use and benefit of Landlord so that no mechanics' or other claim, lien or other Charge shall be allowed against
the estate, right, title or Interest of Landlord by reason of any consent given by Landlord to Tenant to do work in or about
the Premises or provide materials therefor. Nothing contained heroin shall Imply any consent or agreement on the part of
landlord to subject Landlord's estate to liability under any mechanics' or other lien law.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS LEASE.
The term of this Lease (sometimes herein called the "Term") means the period of the "Interim Tenn" (hereafter
defined) followed Immediately by the period of the "Rent Term" (hereinafter defined). The "Interim Term" means the
period commencing on the date of this Lease and ending on the date Immediately preceding the Rent Commencement
Date. The "Rent Term" means the period commencing on the Rent Commencement Date and ending on the Expiration
Date, as extended pursuant to Section 21.02 hereof or by agreement executed by Landlord and Tenant or sooner
terminated as provided herein, as the case may be. During the Interim Tenn, If Tenant Is not open for business in the
Premises, all of the provisions of this Lease shall apply except that Tenant's obligation to pay Rent shall abate, other than
for utilities and trash charges.
Section 3.02: YEARS.
The term "Year" means each successive twelve (12) month period from January 1 through December 31
occurring during the Term, plus, if applicable any Partial Year. "Partial Year" means the period between and including the
Rent Commencement Date, if that date Is not January 1, and the next succeeding December 31 and, If applicable, If the
Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last
day of the Term.
ARTICLE 4: RENT
Section 4.01: TENANT'S AGREEMENT TO PAY RENT.
Tenant hereby agrees to pay for the right of use and occupancy of the Premises during the Rent Term, at the
times and In the manner herein provided, the Minimum Rent, Percentage Rent and Additonal Rent. As used in this Lease,
the term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent,
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{
SEEM&
or any part of the three (3) year period Immec]. ly preceding the day of the giving of such
Am'
ce by Landlord to Tenant. If
such audit shall reveal a deficiency In any payment of Percentage Rent, Tenant shall forthwith pay to Landlord the amount
of the defciency.
(c) If such audit shall disclose that (1) any of the Yearly Reports understate Gross Sales during the reporting
period of the report to the extent of three percent (3%) or more; or (11) Tenant has not recorded Gross Sales, or kept books
of account and records, as and for the period required by this Section 4.07; or (iii) If Tenant shall be delinquent in delivering
to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or more than twice in any Year or Partial
Year, then such understatement, failure or delinquency shall be an Event of Default. In addition, in the event of such
understatement or failure, Landlord shall have the right to bill to Tenant the amount of any deficiency in Percentage Rent
and the reasonable cost of said audit which shall be paid by tenant within twenty (20) days after demand which deficiency
will bear Interest at the "Default Rate" (defined in Section 16,03 hereof) from and after the date it should have been paid
until paid.
(d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such
violation, Landlord, or Its duly authorized representatives, is unable to conduct a proper examination and/or audit, the
parties agree that Landlord shall have been deprived of an Important right under this Lease and, as a result thereof, will
suffer.damages In an amount which Is not readily ascertainable and thus, in such event, Landlord, in addition to and not In
lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its option, to
collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (1)
Percentage Rent reported for the period or periods In question, or (il) the` annual Minimum Rent payable for the period or
periods in question. Tenant agrees to pay such liquidated damages.
Section 4.08: ADDITIONAL RENT.
In addition to Minimum Rent and Percentage Rent, Tenant shall pay, as additional rent (herein sometimes
collectively called "Additional Rent") all other amounts, sums of money or charges of whatsoever nature required to be
paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent". The
terms "Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined in Articles 5 and 8, respectively. In computing
the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar basis as
the Tax Charge or the CAM Charge (collectively "Other Like Charges"), the net payments by the occupants of the Majors
and Junior Majors to Landlord toward the Taxes, the CAM Sum. or the sums on which Other Like Charges are based
(collectively the "OLC Sums") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC
Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant
and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the
GLA Fraction shall not Include the GLA of the Majors' Premises and the Junior Majors' Premises.
Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS.
Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be
paid when due without prior demand therefor (unless such prior demand is expressly provided for in this Lease), shall be
payable without any deductions or setoffs or counterclaims whatsoever (except for credits expressly permitted by this
Lease) and shall be paid by Tenant to Landlord at the payment address of Landlord set forth In the Fundamental Lease
Provisions or to such payee and/or at such other place as may be designated from time to time by notice from Landlord to
Tenant. At the end of the Term, provided Tenant Is not in default, Landlord shall refund to Tenant any amount of excess
Rent paid to Landlord and any other amounts due from Landlord to Tenant, Any Rent, or installment thereof, which is not
paid by Tenant to Landlord within ten (10) calendar days after it is due shall bear Interest at the Default Rate. In the event
any installment of Minimum Rent or other sum under this Lease shall not be paid when due more than twice in any Year, a
"Late Charge" of five cents ($.05) per each dollar so overdue may be charged by Landlord, as Additional Rent, for the
purpose of defraying Landlord's administrative expenses Incident to the handling of such overdue payments. If any checks
given to Landlord by Tenant shall not be paid on Initial presentation, Tenant shall pay to Landlord Fifty and 00/100 ($50.00)
Dollars to defray any cost Incurred by Landlord as a result thereof.
ARTICLE 5: TAXES AND ASSESSMENTS
Section 8.01: TENANTS TAX CHARGE.
Tenant shall pay to Landlord In each calendar year, as Additional Rent, Tenant's share of all real estate and other
ad valorem taxes and other assessments. Impositions, excises and other governmental or quasi-governmental charges of
every kind and nature (including, but not limited to, general and special assessments, sewer and fire district assessments,
foreseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Center and all
improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Taxes" in this Lease.
Tenant's share of the Taxes in each calendar year (the "Tax Charge") shall be an amount equal to the product obtained by
multiplying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial Year).
"Taxes" shall also Include Landlord's reasonable costs and expenses (Including statutory Interest, If any) in obtaining or
attempting to obtain any refund, reduction or deferral of Taxes, but shall not include any interest, penalties, fees, charges
or assessments resulting from the failure of Landlord to pay taxes and/or assessments when due or any estate,
inheritance, succession, gilt, transfer, franchise, corporate, net Income, profit tax or capital levy that may be Imposed on
Landlord. Landlord estimates Tenant's Tax Charge for 2005 to be Two and 18/100 ($2.18) Dollars per square foot of GLA
of the Premises.
Section 5.02: PAYMENT BY TENANT.
(a) Payment of the Tax Charge required under this Article 5 shall be paid by Tenant in equal monthly
installments in advance In such amounts as are estimated and billed by Landlord based upon the total Taxes payable in
each calendar year. Landlord may revise Its estimate and may adjust such monthly payment at the and of any calendar
month. The first such Installment shall be due and payable by Tenant on the Rent Commencement Date (prorated for the
remaining number of days In the calendar year) and subsequent Installments shall thereafter be due and payable at the
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beginning of each ensuing calendar month dur; `g the Term. In addition to the payments Ided for In the Immediately
preceding sentence, k, prior to the Rent Commencement Date, Landlord shall have prepaid all or a portion of the Taxes
applicable to the Term, the Tax Charge shall Include and Tenant shall reimburse to Landlord the Tenant's share of such
Taxes (calculated In accordance with the provisions of Section 5.01), on or before the Rent Commencement Date.
Landlord shall send to Tenant an Invoice setting forth Tenant's share of such Taxes, together with copies of recelpted bills
evidencing Landlord's payment of such Taxes.
(b) After Landlord has received the Tax bills for each calendar year, Landlord will notify Tenant of (1) the
amount of Taxes on which the Tax Charge Is based, (11) the amount of any refund, reduction or deferral expenses, (ill) the
total GLA of the Premises and Landlord's Building on which the Tax Charge is based and (iv) the amount of the Tax
Charge. If the aforesaid monthly payments on account of the Tax Charge for a given calendar year are greater than
Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess
against installments of the Tax Charge next becoming due to Landlord, and if said payments are less than Tenant's share,
Tenant shall forthwith pay Landlord the difference.
Section 5.03: TENANTS ADDITIONAL TAX OBLIGATIONS.
(a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other
charges levied, assessed or Imposed by governmental or quasi-governmental authority upon Tenant or Its business
operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold Interest, trade fixtures,
furnishings, equipment, leasehold Improvements (including, but not limited to, those required to be made pursuant to
Tenant's Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind
owned, installed or used by Tenant In, from or upon the Premises. If the property of Landlord is included In any of the
foregoing Items, the aforesaid taxes, assessments, Impositions, excises, fees and other charges shall nonetheless be paid
by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax, or other tax, assessment,
imposition, excise or other charge now or hereafter levied, assessed or Imposed upon or against this Lease or any Rent or
other sums paid or to be paid hereunder, or Tenant's, Landlord's or Agent's Interest in this Lease or any Rent or other
sums paid or to be paid hereunder. Should the appropriate taxing authority require that any tax, assessment, Imposition,
excise or other charge referred to in this Section 5.03(a) be collected by Landlord or Agent for or on behalf of such taxing
authority, then such tax, assessment, Imposition, excise or other charge shall be paid by Tenant to Landlord or to Agent
monthly as Additional Rent In accordance with the terms of any notice from Landlord or Agent to Tenant to such effect,
The taxes, assessments, Impositions, excises, fees and other charges described In this Section 5.03(a) shall be the
obligation of Tenant and not Landlord or Agent. If any tax, assessment. Imposition, excise, fee or other charge covered by
this Section 5.03(a) is Imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after
receipt of each bill therefor.
(b) Nothing herein contained shall be construed to Include In Taxes any inheritance, estate, succession,
transfer, gift, franchise, corporation, net Income or profit tax or capital levy that is or may be Imposed upon Landlord;
provided, however, that, if at anytime during the Term the methods of taxation prevailing at the commencement of the
Term shall be altered so that in lieu of or as a supplement to the whole or any part of the taxes now levied, assessed or
Imposed on real estate as such there shall be levied, assessed or Imposed (1) a tax on the rents received from such real
estate, or (N) a license fee measured by the rents receivable by Landlord from the Shopping Center or any portion thereof,
or (iii) a tax or license fee Imposed upon Landlord which Is otherwise measured by or based In whole or in part upon the
S
as If the amount of such hopping Center or any portion thereof, then the same shall be included In the computation of Taxes hereunder, computed
subject thereto. any gross receipts tax shall be payable by Landlord. Tenant hCenter all pay the portion thereof a tributablee to
Landlord's receipts from this Lease.
ARTICLE 6: SERVICES
Section 6.01: UTILITIES.
(a) During the Term, Tenant shall be solely responsible for and promptly pay all charges for heat, water,
electricity, sewer rents or charges, sprinkler charges, A.D.T. or other alarm system, water treatment facility charges, and
any other utility used or consumed In the Premises or In providing heating and air conditioning to the Premises together
with all connection and service charges and all taxes or other charges levied on such utilities. Should Landlord elect or be
required to supply or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for
same, as Additional Rent, every month In the Term: provided that Tenant shall not be obligated to pay to Landlord an
aggregate annual sum therefor In excess of the aggregate annual amount therefor which Tenant would otherwise be
obligated to pay for similar utility usage and service as a retell customer of the public utility or municipal authority then
supplying such utility to the Shopping Center. In addition, Tenant shall also pay any taxes, surcharges, Impositions or other additional charges applicable to the utility service being supplied, provided that such taxes, surcharges,
Impositions or other charges are required by law to be collected from Tenant or are paid by Landlord to its supplier of the
utility service In question. Landlord may, at Its option, install an Energy Management System to efflclently conserve utility
usage and Tenant agrees to pay monthly, the sum of Fifty ($50.00) Dollars as Tenant's share of the Energy Management
System purchase, Installation, maintenance and upgrade costs. If permitted by law, Landlord shall have the right at any
time and from time to time during the Term to either contract for service from a different. company or companies providing
utility service to the Shopping Center.
(b) In the event the Premises does not presently contain an electric or other utility meter, at Landlord's
request, Tenant shall, within forty-five (45) days after receipt of such request and at Its sole cost and expense, Install a
meter of a type approved In advance by Landlord. Thereafter, at Landlord's request, Landlord and Tenant shall enter Into
an amendment to this Lease. specifying the procedures for reading such meter and the rendering of bills to Tenant for the
utility being so metered. In the event Landlord or the local authority, municipality, utility or other body supplies water and/or
sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and
sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which
now or hereafter Is assessed, Imposed or may become a Ilen upon the Premises, or the Shopping Center, pursuant to law,
order or regulation made or Issued in connection with the use, consumption, maintenance or supply of water, or the water
TacoBell-KFC-CapltaICity-Final
September 27, 2005 1 Plree/JTF 11
Of sewerage connection or system. Such t;, y gas shall be based on mete
Landlord. red readin r other formula specified by
(c) Landlord shall not be liable or responsible for any loss, damage or expense Tenant may sustain or incur
by reason of any change, failure, curtailment, interruption, disruption, 'brown out" or defect in the supply or character of any
utility supplied to the Shopping Center or Premises or If the quantity or character of the utility supplied by Landlord or any
service provider Is no longer available or suitable for Tenant's requirements and none of the foregoing shall constitute an
actual or constructive eviction or entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its
obligations under this Lease. Tenant shall operate the Premises in such a manner as shall not waste energy or water or
burden or damage the utility lines therein.
If any utilities furnished by Landlord become unavailable for a period In excess of two (2) days solely by
reason of Landlord's negligence and Tenant is forced to close Its business to the public due to such Interruption, then after
the third day of such closing, Tenant's Minimum Rent shall abate until such time as service is restored.
(d) Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utility
services to the Premises, without any responsibility to Tenant, except to connect at Tenant's sole cost and expense,
Tenant's distribution facilities therefor with another source for the utility service so discontinued.
Section 8.02: APPLICATION FOR UTILITIES.
Tenant shall make all appropriate applications to the local utility companies at such times as shall be necessary to
Insure utilities being available at the demised premises no later than the commencement of the term and pay all required
deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company.
Section 8.03: TRASH AND GARBAGE REMOVAL.
Tenant shall be solely responsible for trash and garbage removal from the Premises, including the placing of all
trash and garbage In containers provided by Landlord for such purpose, In the event Landlord elects to furnish such
service to the tenants In Landlord's Building, Tenant agrees to use only the service provided by Landlord and to pay for
such service (Including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as
Additional Rent, In accordance with a schedule of charges to be established by Landlord (the "Refuse Handling Charge").
In no event shall Tenant be obligated to pay Landlord more for the Refuse Handling Charge than the prevailing competitive
rates of reputable Independent trash removal contractors for service similar to that provided by Landlord. Tenant shall not
dispose of any hazardous materials or environmentally sensitive or restricted item of waste in any trash facilities provided Lan
lord, and
n lieu thereof, Tenant shall the P edmises a d 1Shpping Center In accordance with alat Its sole cost and l Governmental Requirements (hereinafter defined). from
ARTICLE 7: USE OF PREMISES
Section 7.01: SOLE USE AND TRADE NAME.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate all of the
Premises for the use set forth In the Fundamental Lease Provisions and under Tenant's Trade Name set forth therein.
Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name without the
prior written consent of Landlord. Tenant agrees that If Tenant or anyone else claiming through or under Tenant uses the
Premises for a use or trade name not set forth in the Fundamental Lease Provisions without Landlord's prior written
consent, such conduct shall constitute an Event of Default, Tenant shall, at its expense, procure any and all governmental
licenses and permits, Including, without limitation, sign permits, required for the conduct of business in or from the
Premises and shall, at all times, comply with the requirements of each such license and permit. Landlord does not
represent or warrant that It will obtain for Tenant (or that Tenant will be able to obtain) any license or permit.
Section 7.02: HOURS.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate, conduct its
business within and otherwise use the Premises In accordance with the terms and conditions of this Lease, Including,
without limitation, the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (unless the Premises
are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will
keep the Premises open for business to the public at least; (a) every Monday through Saturday from 11:00 a.m. until 9:30
p.m.; and (b) also on Sunday from 11:00 a.m. until 8:00 p.m. (unless prohibited by jurisdictional authorities) as required by
Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option, on a per diem
basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord.
The per diem reduction shall be the amount of the applicable Break Point divided by 385 for each violation. Tenant agrees
that Landlord may change the foregoing business hours from time to time to reflect local custom or seasonal shopping
patterns provided that such changes are uniformly applied to at least eighty percent (80%) of retail tenants In Landlord's
Building. Tenant shall not be required to keep the Premises open during hours when the Enclosed Mall is closed to the
public. The requirements of this Section 7.02 are subject, with respect to any business controlled by governmental
regulations In Its hours of operation, to the hours or operation so prescribed by such governmental regulations and are
further subject to applicable federal, state, and local environmental and other laws, rules, or regulations, guidelines,
judgments or orders.
Notwithstanding anything to the contrary contained In this Lease, Tenant shall not be required to remain open for
business during any hours when less than two (2) department stores and seventy-five percent (76%) of the non-
department store retail tenants of the Shopping Center are open for business, provided, however, this shall In no event
detract from Tenant's overall obligation to continuously operate In the Premises throughout the term of this Lease.
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September 27, 2005 1 Plree/JTF 12
Section 7,03: OPERATIONAL REQUIRE?TS.
Tenant agrees that it:
(a) will not in connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or
going out of business sales, or similar type sale, or utilize any unethical method of business; provided, however, that this
provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine Its own selling
prices nor shall it preclude the conduct of periodic, seasonal, promotional or clearance sales;
(b) will not use or permit the use of any apparatus for sound and/or light reproduction or transmission
Including loudspeakers, phonographs, radios or televisions, or of any musical instrument in such manner that the sounds
so reproduced, transmitted or produced shall be audible beyond the Interior of the Premises; will not distribute, or cause to
be distributed, at the Shopping Center or In any part thereof any handbills or other advertising or notices; and will not
conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally
considered appropriate in accordance with standards of operation for the Shopping Center established by Landlord; will
not install any antennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior
of the Premises;
(c) will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the
confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes,
dust or vapors to emanate or be dispelled from the Premises;
(d) win not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor
receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or
standing outside of said area of trucks, trailers, or other vehicles or equipment engaged in such loading or unloading In a
manner which may Interfere with the use of any Common Areas or any pedestrian or vehicular use and good regional
shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading
and services to the Premises prior to 9:30 a.m. each day;
(e) will not paint or decorate any part of the exterior or Interior of the Premises, or change the architectural
treatment, fixturing, decor or other appearance of the Interior or exterior of the Premises, without first obtaining Landlord's
written approval of such painting, decoration or change; and will remove promptly upon order of Landlord any paint,
decoration or change which has been applied to or Installed upon the exterior or Interior of the Premises without Landlord's
written approval, notwithstanding the above, Tenant reserves the right to make any non-structural additions, alterations,
modifications, Improvements or perform any other work not In excess of $20,000.00 in the aggregate in any Year without
the prior written consent of Landlord;
(f) will keep the inside and outside of all glass in the doors and windows of the Premises clean and will
replace any cracked or broken glass with glass of the same kind, size and quality, will maintain the Premises at Its own
expense In a clean, orderly and sanitary condition and free of Insects, rodents, vermin, and other pests and will use an
exterminator designated by Landlord and at times designated by Landlord; will not bum or permit undue accumula*M of
garbage, trash, rubbish and other refuse; will (subject to Section 13.04) remove the some from the Premises to compactors
or other receptacles designated by Landlord, and will keep such refuse in proper containers in the interior of the Premises
until so removed from the Premises;
(g) will comply with all applicable federal, state and local environmental and other laws, rules, regulations,
guidelines, judgments and orders and all recommendations of any public or private agency having authority over Insurance
rates which now or In the future enact requirements with respect to the use or occupancy of the Premises by Tenant,
including, without limitations the requirements imposed by the Americans with Disabilities Act which imposes requirements
relating to the design and use of the Premises and the requirements Imposed by the Clean Air Act which Imposes, among
others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants (collectively
the "Govemmental Requirements"); will not use or permit the use of any portion of the Premises for any unlawful
purpose; and will conduct its business in the Premises In all respects In a dignified manner and in accordance with high
standards of store operation;
(h)
(I) will also comply with and observe all non-discriminatory rules and regulations esetablished by Landlord
from time to time in accordance with Section 8.05; notwithstanding the above, Tenant shall b permitted to use Its
prototype exterior signage and/or canopies, price or menu boards and promotional banners, provided same are
professionally prepared and maintained and approved In writing by Landlord; ll not permit
port
Pre inconsis e)nt with rieasonabl st nda ds of a first c asis shopping m mises for solicitations, demonstrations or any activities
(k) will not use, or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space
outside of the Premises for the display or sale or offering for sale of any merchandise or for any other business,
occupation or undertaking;
(1) will provide or cause to be provided within the Premises, without cost or expense to Landlord, adequate
lighting and security for Its licensees, Invitees and employees during such periods as the Premises are open for business;
(m) will maintain at all times a full staff of employees and a complete stock of merchandise and other goods
consistent with the use of the Premises;
(n) will conduct Its business to maximize Gross Sales;
(o) Tenant shall maintain the Premises In first-class condition throughout the Term of the Lease and shall
refurbish all worn surfaces to bring the same to like new condition, at Tenant's sole cost and expense, as same is
reasonably necessary during the Term;
TacoBelt-KFC-CapkalCity-Flnal
September 27, 2005 1 Plree/JTF 13
will provide, or cause to be provided all security within its Premises as it deems appropriate;
W will conduct its labor relations and Its relations with employees in such a manner as to avoid all strikes,
Picketing, boycotts or hand billing at or about the Premises and the Mall Premises. Tenant further agrees that ff, during the
period of any work by or for Tenant In or about the Premises In connection with such work there is a strike, picketing,
boycotting, hand billing or other activity objectionable to Landlord, Tenant shall remove or cause to be removed from the
Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting,
hand billing or other activity ceases and the cause thereof is settled to Landlord's satisfaction;
(q) will not, without obtaining Landlord's prior written approval, which approval may be withheld In Landlord's
discretion, install any storage or propane tank, whether above or underground, at the Premises or In the Shopping Center
and If Landlord shall consent to such installation, Tenant will comply with all applicable laws, regulations and underwriter
requirements concerning the installation, operation, and closure of such tank. Upon termination of this Lease, Landlord
shall have the option of requiring that Tenant, at Tenant's sole cost and expense, perform tests relating to the condition of
such tank and/or remove any tank installed by Tenant and associated contaminated material. Tenant shall be deemed the
owner and operator of any tank Installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tenant's
expense, to another location acceptable to Landlord;
(r) will, If applicable, Install and properly maintain a grease trap and either a "black iron duct", or other seff-
contained venting and exhaust system acceptable to Landlord. Such Items shall be installed in a manner, of materials and
at a location approved in advance by Landlord and shall, at Landlord's option, connect to trunk facilities, If any, supplied by
Landlord for same: l not use th not dispose of anyidamaging oe nljurious subslitancethere purpose other than that for which they were constructed and will
(t) will not install, or permit to be installed or operate any coin or token operated vending machine, game
machine, pinball machine, pay telephones, pay lockers, pay toilets, scales, amusement devices and machines for the sale
of beverages, foods, candy, cigarettes or other commodities, except solely for use by Tenant's employees in non sales
area and not to exceed collectively two (2) machines or other devices; and
(u) will not store, display, rent or sell any audio or video cassettes.
Section 7.04: TENANTS USE OF ROOF, EXTERIOR WALLS, ETC.
Tenant shall not, without having obtained the prior written consent of the Landlord, perform any work of any nature
whatsoever to the roof, exterior walls or to any of the structural portions of Landlord's Building or the Premises or In areas
reserved to Landlord or excluded from Tenant in the Store Design Criteria (except as necessary to service any of Tenant's
equipment located in such areas). Any damage to the Premises or any person or property occurring as a result of a
breach of this provision shall be the sole responsibility, cost and expense of the Tenant. Notwithstanding Tenant's rights
set forth elsewhere in this Lease, Landlord may erect additional stories or other structures over all or any part of the
Premises, Landlord's Building and any other part of the Mall Premises. In connection with such erection, or otherwise,
Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other aide to such construction at
Landlord's sole cost and expense.
Section 7.08: OPERATION OF HVAC SYSTEM.
Tenant agrees, during the hours the Premises Is open for business, to control and/or operate as applicable the
HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant so that
conditions Inside the Premises are maintained within a range of 72 to 75 degrees Fahrenheit or within such range as may
be prescribed by applicable governmental authorities so that heat, ventilation and cooled air are not drained from the
Premises or the Enclosed Mall.
Section 7.08: EMPLOYEE PARKING AREAS.
Landlord may, from time to time, designate that particular portions of the Shopping Center parking areas (the
"Employee Parking Areas") are to be used by Tenant and Its employees, or other individuals working at or from the
Premises. If Landlord does so, Tenant and Its employees shall park their vehicles only In the Employee Parking Areas.
Tenant shall furnish Landlord with a list of Tenant's and employees' vehicle license numbers within fifteen (15) days after
Tenant opens for business in the Premises, and at Landlord's request, the Tenant shall thereafter notify Landlord In writing
of any addition, deletion or other change to or from such list within five (5) days after Landlord makes such request.
Tenant shall notify each employee In writing of the provisions of this Section 7.08 prior to each employee commencing
employment or work at or from the Premises. If Tenant or any of Its employees do not park their vehicles In the Employee
Parking Areas, Landlord may give Tenant notice of such violation. If Tenant does not cease such violation, or cause such
violation by the employee to cease, as the case may be, within two (2) days after Landlord's notice of violation is given,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day per violating subs
uent comlmenceowithout theenece sity of notice, and FLandlord shall, In addition, day
have the right to have he charge
vehicles towed at Tenant's expense.
vvolating
Section 7.07: NON-COMPETITION COVENANT.
Deleted.
Section 7.08: SIGNS AND ADVERTISING.
Tenant shalt not place or permit to be placed on the exterior of the Premises or windows or In the store front or
roof, any sign, banner, decoration, lettering or advertising matter (collectively a "sign") without he Landlord's prior written
approval. Tenant shall submit to Landlord reasonably detailed drawings of Its proposed signs for review and approval by
Landlord prior to utilizing same; however, Tenant may without such approval use in the store front professionally made
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September 27, 2005 1 Piree/JTF 14
reasonably sized signs Indlcating prices, stylLnd like Information. All signs shall be ins and maintained at all times
by Tenant In good condition, operating order and repair. Flashing signs are prohibited. Tenant shall Install one internally
illuminated, Individually lettered sign or other type of sign as specified by Landlord above the storefront of the Premises
and professionally lettered name signs on Its service doors in accordance with the Final Plans or other plans and
specifications previously approved by Landlord,
damage
Landlord shall have the right, after twenty-four (24) hours prior written notice to Tenant and without liability for caused thereby, Landlordtodeterminesthe
(In Itsaesonlable judgment) remove
violation of the displayed or of affixed
thiss Section 7.08; Premises
such Items have not been previously approved by Landlord.
vided that
Tenant will keep the storefront sign and display windows in the Premises lighted during all periods that the
Shopping Center Is open to the public and for one-half hour after required business hours and for such other periods as
may be reasonably required by rules and regulations established In accordance with Section 8.05.
ARTICLE 8: COMMON AREAS
Section 8.01: USE OF COMMON AREAS.
(a) Tenant and Its employees and Invitees are, except as otherwise specifically provided in this Lease,
authorized, empowered and privileged during the Term to use the Common Areas for their respective Intended purposes
in common with other persons, Tenant's right to use any meting room or auditorium, If any, In the Common Areas shall
be subject to such schedules and payment of such fees or charges therefor as Landlord may from time to time adopt
governing the use thereof.
(b) Subject to Section 8.04, Landlord shall at all times have the right to utilize the Common Areas including,
without limitation, the Enclosed Mali for promotions, exhibits, carnival
automobile and other shows or events, the leasing or licensing of klosks push carts and foodoutdoor
faciliti s,llaandscaping,
seating areas, seasonal displays, decorative items, and any other use which, in Landlord's judgment, tends to attract
customers to, or benefit the customers of the Shopping Center.
Section 8.02: COMMON AREA MAINTENANCE SUM.
(a) The term "Common Area Maintenance Sum" (or the "CAM Sum") shall be charged and prorated in the
manner hereinafter set forth and shall mean all sums Incurred in a manner deemed by Landlord to be reasonable and
appropriate and for the best interests of the Shopping Center In connection with the operation, repair and maintenance of
the Common Areas and the Shopping Center (and any additions thereto), Including, without limitation, the costs and
expenses of:
(i) operation, Inspection and/or maintenance of the storm, sanitary, electrical, gas, steam, water,
telephone systems, lighting system (including poles, bulbs, and fixtures), and other utility systems, Including pipes, ducts
and similar Items; directional signs and other traffic signals, markers, controls, signs (Including all identification signs) both
on and off site:
(ii) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and
repaving all parking surfaces, services areas and other portlons of the Common Areas; opera
and/or emergency waterliand sp nkletr, security, maintenance of
safety systems, iheating, Systems, electrical says emand other s and all utility tor eand
elevator systems and any other Items, facilities, equipment, and systems furnished by Landlord as part of the Common
Areas;
(Iv) premiums and other charges for insurance to the extent provided by Landlord, including without
limitation, liability Insurance for personal and bodily Injury, death and property damage; insurance covering Landlord's
Building and the Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation;
plate glass Insurance for glass exclusively serving the Common Areas; boiler Insurance (If carried); losses borne by
Landlord as a result of deductibles or self-Insured retentions carried by Landlord under an insurance policy or self
insurance by Landlord; Landlord's risk management expenses and rent Insurance provided by Landlord pursuant to
Section 11.02;
Items located within theopCommoneration
and Interior fande xteriooruplantingrtreplanting and replacing fencing all flowers,
shrubbery, plants, trees and other landscaping within the Common Areas;
(vi) operation and/or maintenance of Landlord's Building's structure, including, without limitation,
floors, doors, walls, ceiling, roofs, skylights, and windows;
(vil) maintenance and depreciation of all machinery and equipment used in the operation or
maintenance of the Common Areas (including but not limited to all escalators, elevators and other vertical transportation (if
any), security vehicles and equipment) and all personal property taxes and other charges incurred in connection with such
machinery and equipment;
(viii) all license and permit fees, any and all parking surcharges that may result from any environmental
or other laws, rules, regulations, guidelines or orders;
(Ix) the expense of installation and operation of loudspeaker systems, music program services, cable
television systems, or similar audio or video transmission systems;
(x) personnel, Including without limitation, cleaning and maintenance personnel, Landlord's
management staff [which Includes the General Manager, Assistant Manager, secretaries, bookkeepers and accountants
(regardless of where the aforesaid personnel are located)) together with the uniforms, payroll, payroll taxes and employee
benefits of all such personnel;
(A) the expense of security personnel and equipment, Including, without limitation, uniforms as well as
transportation and surveillance equipment;
company
providing) electricity service, Includ ng,ewthout limitat ono, maintenan e! repair, eInstall ton sand service c sts
associated therewith;
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September 27, 2005 \ Piree/JTF 15
NO all expenses Incurre °by Landlord at the same rate per unit lord charges to tenants, In
connection with refuse disposal, water. and sewer, gas, steam, exterior site lighting, electricity, air conditioning, heating,
and other utilities, Includ1% without limitation, any and all usage, service, hook-up, connection, availability and/or standby
fees or charges pertaining to same; Landlord cost of operatngxand ma ntaining the Common Areas, In Including but of limited to those things listed In Section 802(a);
and
(xv) expanding, adding to or reconfiguring the Common Areas (or any portion thereof).
(b) Notwithstanding the foregoing, the CAM Sum shall not Include:
(1) the expense of any repair or replacement required of Landlord pursuant to the reconstruction
obligations of Section 12.01;
(11) depreciation (other than depreciation as above specified);
(Ill) any utilities which are directly metered or submetered to tenants in Landlord's Building; and
(Iv) any amounts paid by Tenant as part of Its Food Court CAM Charge as described In Exhibit "E"
attached hereto.
(c) Notwithstanding anything contained In this Lease to the contrary, In calculating the "CAM Charge"
(defined in Section 8,03), the CAM Charge and calculation thereof may be based upon Landlord's estimates, which
estimates and payments thereon shall be subject to adjustments In future billings to Tenant based on Landlord's actual
cost, it being understood and agreed that in determining actual costs, Landlord in Its sole discretion, will make allocations
of certain Rams between the Enclosed Mall and other portions of the Shopping Center of which the Enclosed Mall Is a part,
which need not be based on relative size or use,
(d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an
Independent contractor or contractors or others and the costs therefor shall be Included in the CAM Sum. Except as
provided herelnabove, none of the costs for the original construction and Installation of the Common Areas shall be
included in the CAM Sum.
(e) If Landlord from time to time acquires, or makes available, additional land or Improvements for parking or
other Common Area purposes, the CAM Sum shall also Include all costs and expenses Incurred by Landlord in connection
with the operation or maintenance of said additional land and Improvements.
(f) The words "maintenance", "maintain" or "maintaining" as used In this Article 8 Includes, without limitation,
all repairs, replacements and other work and service of any type whatsoever.
(g) Landlord agrees that If it Incurs In any single year expenditures which Individually cost In excess of
$300,000.00 relating to the replacement of roofs, the replacement of mall HVAC units or the replacement of any other
mechanical or physloal component of the Shopping Center then, for the purpose of Section 8.02, such cost shall be
amortized over the expected useful life of such Rem, In accordance with GAAP.
Section 8.03: CAM CHARGE.
(a) Tenant shall pay to Landlord, as Additional Rent, Tenant's share of the CAM Sum In the manner set forth
in Section 8.03(b) and (c) below. Tenant's share of the CAM Sum for each calendar year shall be an amount equal to the
CAM Sum for that period multiplied by the GLA Fraction (the "CAM Charge"). For any Partial Year, the CAM Sum will be
multiplied by the Partial Year Fraction with the result multiplied by the GLA Fraction, Tenant's CAM Charge for 2005 shall
be Ten and 47/100 ($10.47) Dollars per square foot of the GLA of the Premises.
Landlord agrees that Tenant's maximum payment of Its CAM Charge for 2006 shall not exceed the CAM
Charge for 2006 plus five percent (5%) of such payment; and further, that any subsequent Year's payment shall not
exceed the immediately preceding Year's payment plus five percent (5%) of such payment. Notwithstanding the foregoing,
In making the foregoing calculation, Common Area Costs relating to utilities, insurance, renovations, snow removal and
security shall be excluded from the aforesaid limitation, and Tenant shall continue to pay its pro rata share of such Items
without regard to the foregoing,
(b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calendar month
in the Term thereafter amounts estimated by Landlord to be Tenant's monthly share of the CAM Sum. Landlord may
adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated
costs.
(c) Following the end of each calendar year, Landlord shall furnish Tenant a statement covering the calendar
year just expired, certifled as correct by an Independent public accountant or an authorized representative of Landlord,
showing the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect thereto as set
forth in the preceding Section 8.03(b). If Tenant's aggregate monthly payments on account of the CAM Charge are greater
than Tenant's share of the CAM Sum, Tenant shall receive a credit for the excess against monthly Installments on account
of the CAM Charge next becoming due to Landlord; If said payments are less than said share, Tenant shall pay to
Landlord the difference forthwith.
(d) Landlord may have heretofore elected to spread, and may hereafter elect to spread, the amount of any of
the expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over such
periods Instead of including such expenses entirely In the year In which expended or Incurred, In which event, the annual
amortization amount shall be deemed to be an expense Incurred during each year of the amortization period,
notwithstanding that such expenses may have been expended or Incurred prior to the execution of this Lease.
Section 8.04: CHANGES BY LANDLORD.
As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature
and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and thereto
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September 27, 2008 1 Piree/JTF 16
from time to time which in its opinion are d erred to be desirable or which a result of an
local environmental or re made as
any federal, state or
other law, rule, regulation, guideline, judgment or order, includiaeaust, g bnot limited to, the location,
relocation, enlargement, reduction or addition of driveways, entrances, exits, automobiParkin
customer
spaces, employee and
parking areas (If any), the direction and flow of trefflc, installation of prohibited rndsca
ped areas, and any
and all other facilities of the Common Areas, Landlord (or others entitled to) may from time togtime make alterations,
renovations, reductions, or additions anywhere within Landlord's Building or to the Common Areas or other part of the
Shopping Center or any lands or Improvements added thereto, construct additional buildings or improvements on the
Common Areas or elsewhere and make alterations thereto, build additional stories on any buildings, construct multilevel
or elevated or underground parking facilities, and construct roof, walls, and any other Improvements over, or In connection
with any part of, or all of, the Common Areas In order to enclose same. Landlord agrees that in Implementing its rights
pursuant to this Section, it shall not change the Common Areas so as to materially restrict access to or visibility of the
Premises from other portions of the Enclosed Mall, Tenant hereby agreeing that any kiosk, planter, bench and other
amenities which are less than one hundred fifty square feet in size, eight feet in height and located not closer than ten feet
from the point at which Tenant's demising wall Intersects with Tenant's lease line shall be conclusively presumed not to so
restrict access or visibility to the Premises. If, during the period of such alterations, remodeling, construction or repairs,
such work materially adversely affects or obstructs the flow of traffic to the Premises so as to render the Promises unfit for
the carrying on of business, from and after the third full business day of said Interruption, Minimum Rent shall abate until
the Premises are again rendered fit for the conducting of business. Further, Landlord agrees to use its best efforts to
ensure that any construction, repairs, additions and/or alterations shall not materially Interfere with and/or Impair Tenant's
use of the Premises or unreasonably interfere with and/or Impair the conduct of Tenant's business therein.
Section 8.05: RULES AND REGULATIONS.
Tenant agrees that Landlord may establish and from time to time change, alter and amend, and enforce against
Tenant, such reasonable rules and regulations as Landlord may deem necessary or advisable for the proper and efficient
use, operation and maintenance of the Common Areas, provided that all such rules and regulations affecting Tenant and
Its invitees and employees shall apply equally and without discrimination to substantially all of the retail tenants In Build
engagin
In certain acts or of a cert use. The hereinopro idedifor may nctlude,Ilbutishallinotnbetlimitedd to,the ours during which the Co mon Areas rules and regulations
use, shah be open for
Section 8.00: LANDLORD'S MAINTENANCE AND CONTROL. , or
cause
to be
and o
Commo and rea on bile condition and matnne . Landlord shall, as between maintainandlordednd Tenant, at allltimes durinn he Term in good
during n
have
the sole and exclusive control, management and direction of the Common Areas, and shall provide or cause to be
provided, security in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be
provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from
time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Anus,
excepting, however, Tenant and other tenants of Landlord and bona floe invitees of either who make use of sold areas for
their intended purposes and in accordance with the rules and
respect thereto. The rights of Tenant in and to he Common Areas shell at all timesdbe subject to the rights of of hers to
use the same In common with Tenant, and It shall be the duty of Tenant to keep all of the Common Areas free and clear of
any obstructions or Interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord may at
any time and from time to time close all or any portion of the Common Areas to make repairs or changes, or to such extent
as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of any rights to any person
or to the public therein, to close temporarily any or all portions of the Common Areas and to do and perform such other
acts In and to Common Areas as, In the exercise of good business judgment, Landlord shall determine to be advisable
with a view to the Improvement of the convenience and use thereof by occupants and tenants, their employees and
invitees,
ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 9.01: MARKETING SERVICE.
(a) Landlord has established or will establish an advertising and promotional service (herein called the
"Marketing Service") to furnish and maintain advertising and sales promotions which, in Landlord's Judgment, will benefit
he Shopping Center, Landlord has established or will establish a fund (the "Marketing Service Fund") to be used by
Landlord to pay all costs and expenses associated with the formulation and carrying out of an ongoing
advertising and other promotion of the Shopping Center. The program may include, without liml tion, sppeeo alpevents,
shows, displays, signs, marquees, decor, seasonal events, advertising for the Shopping Center, promotional literature and
other activities to market the Shopping Center based on sums collected from tenants. Tenant shall pay, as its share of the
cost and expense of the Marketing Service for each Year, the amount set forth in the Fundamental Lease Provisions
(herein called he "Marketing Service Charge"). The Marketing Service Charge for any Partial Year shall be determined
by multiplying Tenant's Marketing Service Charge by the Partial Year Fraction. The Minimum Advertising Charge for any
Partial Year shall be determined by multiplying Tenant's Minimum Advertising Charge by the Partial Year Fraction.
(b) Landlord may appoint an advisory committee, composed at least of a representative of Landlord, a
representative of each Major, and a representative from each of six (6) tenants In Landlord's Building to review the
advertising and other promotional activities provided. Such committee shall function solely In an advisory capacity subject
to Landlord's discretion.
(c) In addition, Landlord may use the Marketing Service Fund to defray the costs of administration of the
Marketing Service, Including, without limitation, the salary and benefits of a marketing director and related administrative
personnel, rent and Insurance.
(d) Notwithstanding the provisions of this Article 9, Landlord may, at any time, In its sole discretion, decide
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that Landlord will, on and after a certain dal ereafter, no longer provide the Marketinrvice. Landlord may cease
performing the Marketing Service on the data so specHied by the Landlord, provided that nothing herein shall require
Landlord to breach or fall to perform any agreement or obligation it has made with or to any third person In connection with
the Marketing Service. If Landlord determines that it Is or may be at risk of any such breach or failure, Landlord need not
cease performing the Marketing Service until Landlord determines that such risk has passed.
(e) In the event that once during the Term there Is (1) any renovation of the Landlord's Building or the
Enclosed Mall which also involves the renovation of the storefronts of fifty percent (50%) or more of the existing tenants'
spaces (a "Storefront Renovation"); or (11) any expansion of Landlord's Building which increases the GLA of Landlord's
Building by ten percent (10%) or more (a "Building Expansion"), then at the time of a Storefront Renovation or Building
Expansion, Tenant shall pay to Landlord (whenever there Is and in each case of a Storefront Renovation or a Building
Expansion) a special assessment (the "Special Assessment") In an amount equal to the Marketing Service Charge (and
in addition to the Marketing Service Charge) for the calendar-year of completion of a Storefront Renovation or a Building
Expansion. Funds collected by the Special Assessment will be used for expansion/renovation advertising and/or special
events to promote the Storefront Renovation or the Building Expansion.
(0 Landlord reserves the right, In Its sole discretion, to recommence providing the Marketing Service at any
time after Landlord ceased providing the same.
Section 9.02: TENANT'S MINIMUM ADVERTISING OBLIGATION.
Deleted.
Section 9.03: ADJUSTMENTS AND CHARGES.
(a) The Marketing Service Charge shall be adjusted annually by a percentage equal to the percentage
Increase or decrease (but In either case no more than three percent (3%)) in the electronic, print and outdoor advertising
rates of the media used for advertising and promotions In the preceding calendar year in the media market In which the
Landlord's Building Is located; provided, however, that the Marketing Service Charge shall not be less than as set forth in
the Fundamental Lease Provisions. The calendar year In which the Rent Commencement Date occurs shall be
considered the base calendar year and every other calendar year thereafter a revised base calendar year In computing the
adjustments hereunder.
(b) The Marketing Service Charge shall be paid In equal monthly Installments, in advance, on the first day of
each month, except that If the Rent Commencement Date is not on the first day of a calendar month, then that portion of
the Marketing Service Charge which Is attributable to the days In that first partial calendar month shall be paid In advance
on the Rent Commencement Date.
(c) Landlord may charge all costs and expenses of providing the Marketing Service In any calendar year
against the budget therefor. Said costs and expenses may Include without limitation the following:
marketing service)organiization) deemed necessary by Landlord and to all staff and outside
g professional
carry out effectively the consultants (rketing end ipublic relations
objective of the Marketing Service, Including without limitation all payroll, payroll taxes and employee benefits of any such
director and staff;
(11) such reasonable amount of space within the Landlord's Building as may be necessary to carry out
the Marketing Service, the rental therefor to be comparable to the rental for similarly sized commercial space;
(ill) all actual costs Incurred in advertising and promoting the Shopping Center, Including without
limitation radio, newspaper, television, direct and Indirect costs of services, art work, copy, printing, paper, stationery and
supplies; and
(iv) such office equipment, utilities and telephones as may be deemed necessary by the marketing
director.
(d) The marketing director and consultants shall be under the exclusive control and supervision of Landlord,
and Landlord shall have the sole authority to employ and discharge them or either of them and the staff of the director.
(a) Notwithstanding the apportionment of amounts to the above-described marketing and advertising funds as
set forth in both this Article 9 and in Section (k) of the Fundamental Lease Provisions, Landlord hereby reserves the right
from time-to-time to allocate the total amount received by Landlord for such funds In any manner whatsoever Landlord, In
Its sole discretion, deems appropriate, so long as any and all such funds attributable to said marketing and advertising
funds are used only to defray the cost of the marketing and advertising programs Initiated by Landlord and to market,
advertise and promote the Shopping Center.
Section 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION.
In the event there presently exists a merchant's association In use In the Shopping Center, Tenant agrees that
Landlord shall have the unilateral right to take any steps required to terminate the same and to replace such merchant's
association with a marketing service, promotion fund, advertising fund, or any other similar entity designated by Landlord in
which event, upon notice to Tenant, Tenant shall automatically be deemed a member thereof and shall contribute to the
same the amount which Tenant Immediately prior to such termination was required to contribute to the merchant's
association. Further, Tenant does hereby Irrevocably assign to Landlord all of Tenant's voting rights contained In any
bylaw or other similar document forming or governing the administration of any such merchant's association.
ARTICLE 10: CONSTRUCTION WORK
Section 10.01: APPROVALS AND STANDARDS.
Tenant shall not perform any construction or make any alterations or changes In or to the Premises at. any time
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during the Term (herein sometimes collectlvcalled "Construction Work's without L` ord's prior written consent,
except as provided in Section 7.03(x). In no event shall Tenant make or cause to be made any penetration through any
roof, floor or exterior or corridor wall without the prior written consent of Landlord. Tenant shall be directly responsible for
any and all damages, including, without limitation, damages to Landlord's Building, the Premises and the premises Of 01het
tenants In Landlord's Building resulting from any of Tenant's Construction Work, whether or not Landlord's consent
therefor was obtained, Any and all Construction Work which Is consented to by Landlord shall be performed in
accordance with (a) plans and specifications prepared by a licensed architect, or engineer and approved in writing by the
Landlord before the commencement of the Construction Work, (b) all necessary governmental approvals and permits,
which approvals and permits Tenant shall obtain at Its sole expense, and (c) all applicable laws, rules, regulations and
building codes relating thereto. All Construction Work shall conform to Landlord's Store Design Criteria and shall be
performed In a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shall at
all times be a complete unit except during the period of the Construction Work. Any Construction Work performed by
Tenant without Landlord's consent shall be returned to Its original condition at Tenant's expense upon request by Landlord.
Tenant shall perform any Construction Work In such a manner as not to obstruct the access to the premises of any other
occupant to the Enclosed Mall nor obstruct other Common Areas.
Section 10.02: INSURANCE AND RECONSTRUCTION.
In the event Tenant shall perform any permitted or required Construction Work, none of the Construction Work
need be Insured.by Landlord under such insurance as Landlord may carry upon the Landlord's Building nor shall Landlord
be required under any provisions of this Lease relating to reconstruction of the Premises to reconstruct or reinstall any
such Construction Work.
ARTICLE 11: INDEMNITY AND INSURANCE
Section 11.01: TENANTS INSURANCE.
(a) Tenant further covenants and agrees that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant will carry and maintain, at Its sole cost and expense, the following types of Insurance, in the
amounts specified and In the form hereinafter provided for:
(1) Commercial General Liability Insurance. Commercial general liability insurance covering the
Premises and Tenant's use thereof against claims for "personal and advertising injury" and "bodily Injury" or death,
"property damage" and "product/completed operations" liability (as the aforesaid terms are. defined in such policy)
occurring. upon, In or about the Premises and Tenant's activities In the Common Area, such insurance to afford protection
to the limit of not less than $3,000,000 regardless of the number of persons claiming Injuries or damages arising out of any
one occurrence. The Insurance coverage required under this Section 11.01(a)(i) shall, In addition, extend to any liability of
Tenant arising out of the Indemnities provided for In Section 11.03. Therefore, such policy shall not contain any exclusion
for contractual liability coverage for any of the foregoing coverages. The general aggregate limits under the liability
Insurance policy or policies must apply separately to the Promises and to Tenant's use thereof. The certificate of
insurance evidencing the commercial general liability form of policies shall specify on the face thereof that the limits of
such policies apply separately to the Premises.
(II) Boilers. Boiler and machinery Insurance In adequate amounts on all fired objects and other fired
pressure vessels and systems serving the Premises (If any); and K the said objects and the damage that may be caused
by them or result from them are not covered by Tenant's special form coverage Insurance, then such Insurance shall be in
an amount not leas than $250,000 and be issued on a replacement cost basis.
(111) Tenant Leasehold Improvements and Property. Insurance covering all of the Items included In
Tenant's leasehold Improvements, heating, ventilating and air conditioning equipment and all other Improvements and
betterments Installed by (or demised by this Lease to) Tenant, and all trade fixtures, merchandise and personal property
from time to time In, on or upon the Promises, and alterations, additions or changes made by Tenant pursuant to Article
10, in an amount not lass than one hundred percent (100%) of their full replacement cost from time to time during the
Term, providing special form coverage, Including but not limited to, protection against the perils Included with the standard
state form of fire and broad form extended coverage Insurance policy, together with Insurance against sprinkler damage,
vandalism and malicious mischief. Any policy proceeds from such insurance shall be held in trust by Tenant's insurance
company for the repair, reconstruction and restoration or replacement of the property damaged or destroyed unless this
Lease shall cease and terminate under the provisions of Article 12.
(iv) Workers' Compensation And Employer's Liability. Workers' Compensation and Employers
Liability Insurance affording statutory coverage and containing statutory limits with the Employers Liability portion thereof to
have minimum limits of $1,000,000.00.
(v) Business Interruption Insurance. Business Interruption Insurance equal to not less than fifty
percent (50%) of the estimated gross earnings for a period of six (0) months (as defined in the standard state form of
business Interruption insurance policy) of Tenant at the Premises which insurance shall be issued on an "all risks" basis
(or its equivalent).
(b) All Policies of Insurance provided for in Section 11.01(a) shall be Issued by insurance companies with a
financial rating of not less than A VII as rated in the most current available "Best's Insurance Reports", and qualified to busines
In the specified InsSect on 11.01 a Landlor's Building Is
not be affected located. Tenant's obligation to rovide the any deductible with respectto such policy or elf Incovera surrance
retention maintained by Tenant. Each and every such policy, except for Workers' Compensation and Employers Liability
Insurance: shall
e Issued In
name
Tenant
and s
name
as an
each Agent and any other parties InbInterest fromttime to time designated in writing by notice frdomi Landlordrto Tenant of Landlord,
(ii) shall be for the mutual and joint benefit and protection of Landlord and Tenant and any such other
parties in Interest;
(III) shall (or a certificate thereof shall) be delivered to each of Landlord and any such other parties In
Interest within thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shall expire or
terminate. Renewal or additional policies shall be procured and maintained by Tenant in like manner and to like extent;
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shall contain that Insurer andq9h In i least thirty (30) days notice In writing in advance of an material c atnge,,?cancellation, terminationtorelapse, or theneffectivet
date of any reduction In the amounts of Insurance;
(v) shall be written as a primary policy which does not contribute to and is not In excess of wyerage
which Landlord may carry; and
(vi) shall contain a provision that Landlord and any such other parties In Interest, although named as
an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, Its servants, agents
and employees by reason of the negligence of Tenant.
(c) Any Insurance provided for in Section 11.01(a) may be maintained by means of a policy or policies of
blanket Insurance, covering additional Items or locations or Insureds, provided, however, that:
(1) Landlord and any other parties In Interest from time to time designated by Landlord to Tenant shall
be named as an additional Insured thereunder as its Interest may appear;
(II) the coverage afforded Landlord and any such other parties in Interest will not be reduced or
diminished by reason of the use of such blanket policy of Insurance;
(111) any such policy or policies (except any covering the risks referred to in Section 11.01(axl)j shall
specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying)
the amount of the total Insurance allocated to the Tenant's Improvements and property more specifically detailed in Section
11.01(a)(III); and
(Iv) the requirements set forth In this Article 11 are otherwise satisfied.
(d) Tenant agrees to permit Landlord at all reasonable times to Inspect the policies of insurance of Tenant
with respect to the Premises for which policies or copies thereof are not delivered to Landlord.
(e) Tenant may self Insure with respect to the Insurance required under subsections 11.01 (a)(0), (iii), and (v)
herein so long as Tenant maintains a net worth of at least $10,000,000.00 at all times during Tenant's self Insurance.
Section 11.02: LANDLORD'S INSURANCE.
(a) Landlord shall at all times during the Term carry and maintain the following types of insurance in the
amounts specified and in the form hereinafter provided for:
(1) Commercial General Liability Insurance. Commercial general liability insurance against claims
for property damage and bodily Injury or death, such Insurance to afford protection to the limit of not less than $5,000,000
In respect to property damage, Injury or death to any number of persons arising out of any one occurrence.
(ii) Landlord's Real and Personal Property, Insurance covering the Landlord's Building (exclusive
of any tenant Improvements and betterments and property required to be insured by Tenant pursuant to Section
11.01(a)(III)j in an amount not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of
excavations, foundations and footings), from time to time during the Term, providing protection against perils Included
Wthin the standard state form of special form coverage Insurance policy, together with Insurance against sprinkler
damage, vandalism and malicious mischief, and such other risks as Landlord may from time to time determine and with
any such deductibles as Landlord may from time to time determine.
(III) Rent Insurance. Rent Insurance with respect to the premises of the tenants in the Shopping
Center if available at a cost which Landlord in Its sole judgment deems reasonable, against loss of rents in an aggregate
amount equal to not more than twenty-four (24) times the sum of (1) the monthly requirement of Minimum Rent of such
tenants, plus (11) the average monthly amount estimated from time to time by Landlord to be payable by such tenants as
Percentage Rent and as Additional Rent pursuant to their leases.
(b) Any insurance provided for In Section 11.02(a) may be maintained by means of a policy or policies of
blanket Insurance, covering additional Items or locations or Insureds provided that the requirements of Section 11.02(a)
are otherwise satisfied.
(c) Tenant shall have no rights in any policy or policies maintained by Landlord and shall not be entitled to be
named an insured thereunder, by reason of payment, as part of the CAM Sum of its share of Landlord's premiums for the
insurance provided for in this Section 11.02 or otherwise.
Section 11.03; INDEMNIFICATION BY TENANT.
Tenant agrees that Landlord shall not be liable for any damage or liability of any kind or for any Injury to or death of
persons or damage to property of Tenant or any other person during the Term, for any cause whatsoever (including
without limitation the acts or omissions of Landlord or Agent, bursting pipes and smoke) by reason of the construction,
use, occupancy or enjoyment of the Premises by Tenant or any person therein or holding under Tenant or happening upon
or about the Premises and Tenant for the purposes of this Section 11.03 shall be deemed to be in exclusive control of the
Premises during the Term, Tenant does hereby agree to and shall protect, defend, indemnify and save harmless Landlord
and Agent from all claims, actions, demands, costs and expenses and liability whatsoever, Including reasonable attorney's
fees, on account of any such real or claimed event, damage or liability, and from all liens, claims and demands arising
from any occurrence In, or about the Premises, or arising out of the construction, use, occupancy or enjoyment of the
Premises, or occasioned In whole or in part by any act or omission of Tenant, its agents, contractors, servants, employees
or invitees, regardless of where occurring. Tenant shall not, however, be liable for damage or Injury occasioned (1) In any
case, by the willful act or (11) by the negligence of the Landlord which is the cause of damage or Injury unless Tenant is
required by this Lease to assume or Insure against such damage or injury. Landlord will protect, defend, Indemnify and
save harmless Tenant from all claims, actions, demands, costs and expenses and all liability whatsoever, Including
reasonable attorneys' fees, on account of any real or claimed event, damage or liability, and from all liens, claims and
demands arising from any occurrence In, or about the Common Areas or arising out of the construction, use, occupancy or
enjoyment of the Common Areas or occasioned In whole or In part by any act or omission of Landlord, its agents,
contractors, servants or employees therein. Landlord shall not, however, be liable for damage or Injury occasioned by the
gross negligence or willful act or omission of the Tenant which Is the cause of damage or Injury.
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3ec1:116 11.04: MUTUAL WAIVERS,
Landlord and Tenant hereby waive any rights each may have against the other on account of any loss or damage
occasioned to Landlord or Tenant, as the case may be, their respective property, the Premises. Its contents or 10 the Other
Portions of Landlords Building, arising from any risk covered by special form coverage Insurance, and to the extent of
recovery under valid and collectible policies of such insurance, provided that such waiver does not Invalidate such policies
or prohibit recovery thereunder. The parties hereto each, on behalf of their respective Insurance companies Insuring the
property of either Landlord or Tenant against any such loss, waive any right of subrogation that such Insurers may have
against Landlord or Tenant, as the case may be.
Section 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS.
Subject to Landlord's obligations In Section 13.01 to maintain the structure of the Premises, Tenant agrees at Its
own expense to comply with all Governmental Requirements as well as the recommendations and requirements, with
respect to the Premises, or Its use or occupancy, of the Insurance underwriters or insurance rating bureau or any similar
public or private body and any governmental authority having jurisdiction with respect to the use or occupancy of
Landlord's Building, including, but not limited to, Installation of fire extinguishers or automatic detection, suppression
systems and/or life-safety systems, any changes, modifications or alterations In the detection and/or suppression systems
or additional detectors and/or sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premises.
Landlord shall not materially change the dimensions of the Premises or materially affect access to the Premises from the
Landlord's Building unless required to make any such changes by reason of any federal, state or local environmental or
other law, rule, regulation, guidellne, judgment or order.
Section 11.09: EFFECT ON LANDLORD'S INSURANCE.
Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything In, upon or about the Premises
which will contravene Landlord's policies insuring against loss or damage by fire or other hazards, or which will prevent
Landlord from procuring such policies in companies acceptable to Landlord at regular rates or which will in any way cause
an Increase In the Insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in
the first sentence of this Section 11.09, Landlord may, upon ten (10) days written notice to Tenant (except In an
emergency), correct the same at Tenant's expense. Tenant shall pay to Landlord as Additional Rent forthwith upon
demand the amount of any Increase in the premiums for Insurance resulting from any violation of the first sentence of this
Section 11.09, even lf Landlord shall have consented to the doing of or the keeping of anything on the Premises which
constituted such a violation (but payment of such Additional Rent shall not entitle Tenant to violate the provisions of the
first sentence of this Section 11,09).
Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY.
Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying space adjoining the Premises or any other part of the Shopping Center or
Landlord's Building, or for any loss or damage resulting to the Tenant or Its property from bursting, stoppage or leaking of
water, gas, sewer or steam pipes or other utility lines or for any damage or loss of property within the Premises from any
cause whatsoever. Such limitation of responsibility and liability shall not, however, apply to Landlord's (1) willful acts or (li)
negligence, except to the extent such are waived or released by Tenant pursuant to Sections 11.03 or 11.04.
ARTICLE 12: DAMAGE OR DESTRUCTION
Section 12.01. LANDLORD'S DUTY TO RECONSTRUCT
In the event the Landlord's Building Is damaged or destroyed by any of the risks referred to in Section 11.02(aKil)
against which Landlord Is obligated to procure Insurance, Landlord shall (subject to being able to obtain all necessary
permits and approvals therefor, Including without limitation permits and approvals required from any agency or body
administering environmental laws, rules or regulations), within one hundred twenty (120) days after such damageor
destruction (unless Landlord terminates this Lease pursuant to Section 12.03), commence to: (a) repair or reconstruct
Landlord's Building and (b) repair or reconstruct the structural floor slab, demising wall studs (without drywall) and roof (or
floor slab above) as the case may be of the Premises. Landlord shall prosecute all such work diligently to completion. In
no event shall Landlord be liable for interruption to Tenant's business or for damage to or repair or reconstruction of any of
those things which Tenant Is required to insure pursuant to Section 11.01(a)(111), nor shall Landlord be required to expend
more for any repair or reconstruction pursuant to this Section than the amount of Insurance proceeds actually received by
Landlord In connection therewith plus the deductible amount under Landlord's policy.
Section 12.02: TENANT'S DUTY TO RECONSTRUCT,
If any Item which Tenant is required to Insure pursuant to Section 11.01(a)(11i) is damaged or destroyed by fire or
other casualty. Tenant shall (subject to being able to obtain all necessary permits and approvals therefor, Including without
limitation permits and approvals required from any agency or body administering environmental laws, rules and
regulations), within fifteen (15) days after Landlord has substantially repaired or reconstructed Landlord's Building and the
portion of the Premises Landlord is obligated to repair or reconstruct pursuant to Section 12.01 (unless Landlord
terminates this Lease pursuant to Section 12.03), commence to repair or reconstruct such damaged or destroyed items to
at least substantially the same condition In which they were prior to such damage or destruction and prosecute the same
diligently to completion. In the event of any substantial damage or destruction to the Premises during the last three (3)
Years of the Term, Tenant shall have the option to terminate this Lease upon giving written notice to Landlord to exercise
thereof within sixty (90) days after the date of such damage or destruction; provided, however, that Tenant shall tender to
Landlord the Insurance proceeds received by Tenant to restore or replace all damage or destruction leasehold
improvements and HVAC equipment in the Premises.
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September 27, 2005 1 Plme/JTF 21
Section 12.03: LANDLORD'S RIGHT TO Tlh „, I ATE.
(a) Landlord shall have the option to terminate this Lease upon giving written notice to Tenant of the exercise
thereof within one hundred twenty (120) days after the Landlord's Building is damaged or destroyed if:
(1) the Premises are rendered wholly unfit for carrying on the Tenant's business after damage to or
destruction thereof from any cause: or
nuclear reaction, nuclear Landlords diat o'n or iradioacti ve con amination, or from any othlerori k notocov ed bqyuake Insurance which
Landlord Is obligated to procure pursuant to Section 11.02(a)(11); or
(111) any damage to or destruction of Landlord's Building occurs within the last three (3) Years of the
Term or in any Partial Year at the end of the Term; or
(Iv) fifty percent (50%) or more of the GLA In the Landlord's Building immediately prior to the damage
or destruction is rendered unfit for carrying on business therein; or
(v) Landlord's Building is so substantially damaged that it is reasonably necessary, in Landlord's
judgment, to demolish the same for the purpose of reconstruction; and provided Landlord simultaneously cancels he
Tenant's Leases on either side of Tenant or immediately adjacent to Tenant if such premises are also damaged or
destroyed.
The rights of Landlord under subsection 12.03(axili) shall be mutual to Tenant, provided Tenant elects to execute
Its right of termination within thirty (30) days after the date of such casualty.
b) Unless so terminated, this Lease shall continue In and effect, an Landlord and shall
perform their re pective obligations under Section 12.01 and 12.02. fUponrany termination of this Lease under an Tenant of he
provisions of this Section 12.03, the Rent shall be adjusted as of the date of such termination and the parties hall be
released from all liability hereunder upon the surrender of possession of the Premises to the Landlord, except for Items
which have been theretofore accrued and are then unpaid.
Section 12.04: ABATEMENT OF RENT.
If this Lease Is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the Landlord's
Building, and If the Premises are rendered wholly or partially unfit for carrying on Tenant's business by such damage or
destruction, then the Minimum Rent and the Additional Rent payable by Tenant under this Lease shall be abated, and the
applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced in direct proportion to the
unfit untill the of the GLA In the Promises earlier of sixty (60) days aftercLandlord erre-delivers for that
tenantable d from the date the Premises are so nrendered
t or the
date Tenant reopens for business. possession of the Premises to Tenant or the
ARTICLE 13: MAINTENANCE OF PREMISES
Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE.
Landlord will keep the roof, exterior face of service corridor walls, structural columns and structural floor or floors
which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other special flooring, walls
installed at the request of Tenant, doors, windows and lass in
Notwithstanding the foregoing provisions of this Section 13.01, Landlord shaleln t?Injanyt ay be liable i to Tena tt unless
Tenant shall have given Landlord written notice of the necessity for such repairs and Landlord falls to commence making
such repairs within a reasonable period thereafter, and provided that any damage necessitating such repairs shall not have
been caused by the omission, negligence or willful act of Tenant, Its concessionaires, Invitees, officers, employees,
licensees or contractors or by the failure of Tenant to perform any of Its obligations under this Lease (in either of which
events Tenant shall be responsible therefor) or have been caused to any of the Items Tenant is requi to Article 11. Landlord shall be under no liability for repair, maintenance, alteration, Improvement, recoconstruction panel
or any other action with respect to the Premises or any part thereof, or any plumbing, electrkalI heating, ventilating, air
conditioning, or other mechahlcal Installation therein, except as may be expressly set forth In this Lease.
Section 13.02: TENANT'S DUTY TO MAINTAIN PREMISES.
Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at Its own cost and
expense, maintain and make all needed repairs, and do all other work to or for the Premises and every part thereof to
render the same in good and tenantable condition. Tenant's obligation under this Section 13.02 shall Include, but not be
limited to, repairing, replacing and otherwise maintaining Items as are required by any governmental agency having
jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen but excluding obligations of
Landlord under Section 13.01), walls (other than the exterior face of service corridor walls), ceilings, plate glass, utility
meters, pipes and conduits outside the Premises which are Installed by or demised to Tenant or which exclusively serve
the Premises, all fixtures, heating, ventilating and air conditioning equipment Installed by or demised to or used solely by
Tenant, if any (whether such heating ventilating and air conditioning equipment Is located inside the Premises, between
the calling and the roof or on the roof of Landlord's Building), sprinkler equipment and other equipment within the
Premises, the storefront or storefronts, all of Tenant's signs, security grilles or similar enclosures, locks and closing
devices, and all window sash, casement or frames, doors and door frames; provided that Tenant shall make no
adjustment, alteration or repair of any part of any sprinkler, life safety or other detection or suppression system in or
serving the Premises without Landlord's prior approval. Tenant shall permit no waste, damage or Injury to the Premises
and Tenant shall Initiate and carry out a program of regular repair and other maintenance of the Premises, including the
painting or refinishing of all areas of the Interior and the storefront as approved by Landlord, so as to Impede, to the extent
possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the
electrical wiring or other systems serving the Premises or within the Premises, and will Install at its expense, but only after
obtaining Landlord's written approval, any additional electrical wiring or other Items which may be required In connection
with Tenant's apparatus.
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September 27, 2005 1 Piree/JTF 22
3ectl'on 13,03: RIGHT TO ACCESS TO THrtL.. REMISES.
Landlord and Its authorized representative may enter the Premises at any and all times during usual business
hours upon forty-eight (48) hours prior written notice to Tenant for the purpose of Inspecting the same (and at all other
times In the case of emergency). Tenant further agrees that Landlord may from time to time go upon the Premises and
make any additions, alterations, repairs or replacements and do other work to the Premises or to any utilities, systems or
equipment located in, above or under the Premises Which Landlord may deem necessary or desirable to comply with all
governmental requirements and/or recommendations of an Insurance rating bureau or of any similar public or private body
or.that Landlord may deem necessary or desirable to prevent waste or deterioration in connection with the Premises If the
Tenant does not make or cause such additions, alterations, repairs or other work to be made or performed promptly after
receipt of written demand from Landlord. Nothing herein contained shall Imply any duty on the part of Landlord to do any
such work which under any provision of this Lease that Tenant may be required to do, nor shall it constitute a waiver of
Tenant's default in failing to do the same. In the event Landlord performs or causes any such work to be performed,
Tenant shall pay the cost thereof to Landlord as Additional Rent upon demand therefor. In addition, Landlord may install,
use, repair or, replace any and all materials, tools and equipment, and pipes, ducts, conduits, columns, foundations,
footings, wires and other mechanical equipment serving other portions, tenants and occupants of Landlord's Building,
above the drop ceiling, within enclosed columns, under the floor or through the non-sales area, that Landlord deems
desirable therefor; without the same constituting an actual or constructive eviction of Tenant, Landlord may also enter the
Premises at all times during usual business hours for the purpose mortgagees and tenants provided Landlord shall use reasnble efforts °nott to Interferie with Tenant's business. No,
exercise by Landlord of any rights provided In Section 13.01 or 13.03 shall entitle Tenant to any damage for any
inconvenience, disturbance, loss of business or other damage to Tenant occasioned thereby nor to any abatement of
Rent.
Section 13.04: CONFLICTS.
To the extent, If any, that there may be any conflict between this Article 13 and Article 12, or between this Article
13 and Article 22, Article 12, If applicable, or Article 22, If applicable, shall prevail.
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01: TENANT'S PROPERTY; REMOVAL.
Any trade fixtures, equipment, apparatus, decorative lighting, signs, counters, shelving, Inventory, sho
mirrors, and other personal property of Tenant not permanently affixed to the Premises shall wcases,
remain the property s,
Tenant. Tenant shall have the right, provided Tenant is not In default under this Lease, at any time and from time to time
during the Term, to remove any and all of Its personal property which it may have stored or installed In the Premises. If
Tenant Is In default under this Lease, Landlord shall have the right to take exclusive possession of such property and to
use such property without rent or charge, and Landlord, whether or not it takes possession of such property, shall have the
benefit of any Ilan thereon permitted under the laws of the state in which Landlord's Building Is located and, if such
possession Is taken or such lien is asserted by Landlord In any manner, including but not limited to operation of law,
Tenant shall not remove or permit the removal of sold trade fixtures, signs or other until such ssession
Is relinquished or the Ilan Is removed, as the case may be, Nothing In this Article shallobe deemed or construed to permit
or allow Tenant to remove any of such personal property prior to the and of the Term without the Immediate replacement
thereof with similar personal property of comparable or better quality, or otherwise render the Premises unsuitable for the
continued conduct of Tenant's permitted use thereof. Tenant at Its expense shall immediately repair and otherwise make
good any damage occasioned to the Premises or Shopping Center by reason of installation or removal of any such
personal property unless such damage Is caused by Landlord pursuant to Section 13.03 and If Tenant falls to remove such
Items from the Premises prior to such expiration or termination, or if this Lease Is terminated by Landlord and Tenant falls
to remove such items from the Premises prior to the effective date of such termination, then in any such event all such
personal property shall thereupon become the pro
Landlord elects to require all or a portion of such Items to of Landlord, w1thout further act be removed by Tenant in which by casee party Tenant shall hereto, unless
promptly
remove the Items designated by Landlord and restore the Premises to Its prior condition at Tenant's expense. Provided
Tenant Is not In default, Landlord agrees to subordinate Its lien on Items of personal property of Tenant to the lien of a
purchase money chattel mortgagee or any institution providing financing, provided Landlord Is provided with a detailed list
of the personal property subject to said mortgage or refinancing, and further provided that such mortgagee or Institution
agrees to remove such personal property prior to the expiration or earlier termination of this Lease and to repair any
damage to the Premises which may be caused by their removal of any such personal property.
Section 14.02: IMPROVEMENTS TO PREMISES.
All improvements made to the Premises by Tenant, including, but not limited to, the items furnished pursuant to
Tenant's Work, alterations, changes and additions' by Tenant, light fixtures, floor coverings and partitions, heating,
ventilating and air-conditioning equipment, mechanical and plumbing equipment, but excluding trade fixtures and signs
and other personal property specified in Section 14.01, shall become the property of Landlord upon expiration or earlier
termination of this Lease.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
Section 119,01: PROHIBITED.
Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not
transfer, assign, sublet, enter Into license or concession or other occupancy or use agreements or mortgage or
hypothecate this Lease or the Tenant's Interest In and to the Lease or the Premises or any part thereof (herein collectively
referred to as "Transfer") without first obtaining in each and every Instance the or written consent of which
Landlord may withhold in its sole discretion. Any attempted Transfer without such prior written consent shallnbe an Event
of Default, shall not be binding upon Landlord, shall confer no rights upon any third person and shall not relieve Tenant of
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September 27, 2005 1 Piree/JTF 23
Its oblIgations under this Lease. Any tram r by merger, consolidation, II gnment, or
Including, but not any to, art
ment for the benefit creditorsgalsatl well as anywise by O eration of law, transfer, hypothecation of any stock or gen neral l. pa partners nership Interest in Tenant so as to result In a change of the control thereof, shag
be Included In the term "Transfer" for the purposes of this Lease and shall be a violation of this Sectlon 16.01 and an
Event of Oefewlt, except as otherwise specifically set forth In this Article 15. Consent by Landlord to any Transfer shall not
constitute a waiver of the necessity for such consent to any subsequent Transfer, In the event of a permitted Transfer,
Tenant agrees nevertheless to and shall remain fully liable for the full performance of each and every obligation under this
Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of
the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the Notice
to the oosed Transfer hichUewith La dlo)rd'sgpriotrinwdttttendconsent the Transfer would be effective.The The least,
thirty (30) days prior to the date on
Regiuest Notice
shall contain, without
limitation, at least: (I) the full Identification of the proposed transferee; (11) the most recent financial statements and other
evidence of the transferee's financial responsibility and business performance; (III) the transferee's proposed specific use
and business proposed to be conducted at the Premises; (Iv) the scope of any proposed. alterations to the storefront of and
within the Premises; and (v) the monetary and non-monetary terms and conditions of the proposed Transfer. Landlord
shall have the right and option (the "Take-back Option"), exercisable by Landlord giving Tenant written notice within thirty
(30) days after Landlord's receipt of the Request Notice of reacquiring the Premises or portion thereof which Is the subject
of the proposed Transfer and terminating this Lease with respect thereto. If Landlord elects not to exercise the Take-back
Option and elects to give Landlord's written consent to the proposed Transfer, then Tenant shall pay to Landlord forthwith
upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lump sum payment or
otherwise) received by Tenant in any month as a result of the Transfer whether denominated rentals or otherwise which
exceed, In the aggregate, the total sums which Tenant Is obligated to pay and does pay Landlord under this Lease in the
same month (prorated to reflect obligations allocable to that portion of the Premises which Is the subject of the Transfer),
all without affecting or reducing any other obligation of Tenant hereunder provided, that in the case of an assignment of
this Lease such Additional Rent payment by Tenant to Landlord shall equal the entire consideration for such assignment.
If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer Is not made (Including without
limitation, delivery of possession by Tenant to and occupancy by the proposed transferee approved by Landlord) within
thirty (30) days after the date Landlord gives Its written consent to the proposed Transfer, then Landlord's written consent
and the Transfer shall be automatically null, void and of no force or effect whatsoever. The Take-back Option shall not be
exhausted by any one exercise thereof by Landlord but shall be exercisable from time to time and as often as there is a
proposed Transfer. The Take-back Option may be exercised by any assignee of Landlord's right, title and interest in this
Lease or any other person which at the time of the Request Notice Is Landlord under this Lease. If after receipt of the
Request Notice Landlord requests additional or further Information which Landlord reasonably requires to consider the
proposed Transfer, Tenant shall deliver such information to Landlord upon Landlord's request therefor and the period for
Landlord to exercise the Takeback Option shall be extended by the number of days between Landlord's request for and
Landlord's receipt of such additional or further information. Tenant shall pay to Landlord the sum of Five Hundred
($500.00) Dollars to defray Landlord's administrative costs, overhead and counsel fees In connection with the
consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the
time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor,
Provided Landlord does not exercise the Take-back Option, Landlord agrees not to unreasonably withhold Its
approval to Tenant's assignment of this Lease or subletting the entire Premises. Without limiting the factors, criteria or
circumstances, under which It may be reasonable for Landlord to withhold Its consent to a proposed Transfer, It shall not be
unreasonable for Landlord to withhold Its consent to a proposed Transfer if any of the following factors, criteria or
circumstances are not satisfied:
1. The net worth of the proposed assignee, as determined by a current audited financial statement prepared
by a certified public accountant, shows a net worth and working capital In amounts determined by Landlord to be sufficient
to assure the future performance by such assignee of Its obligation under this Lease;
2. The character, business reputation and managerial skills of the assignee or subtenant are at least equal to
Tenant's;
3. The assignee or subtenant, in centers of comparable size to the Shopping Center, shall have substantial
retailing experience In the sale of merchandise permitted to be sold from the Premises as specified In the paragraph of the
Fundamental Lease Provisions captioned "Use";
4. The quality of merchandise sold from the Premises after the assignment or sublease will be the same as
prior thereto;
5. The proposed transferee shall not be an existing tenant In Landlord's Building or an affiliate of an existing
tenant and is not negotiating with Landlord (or has not negotiated with Landlord In the last six (6) months) for space In
Landlord's Building;
6. The transferee shall have positive annual earnings in each of its last two fiscal years;
7. In the case of a sublease, the rental to be paid by the subtenant shall not be lees than Landlord's
prevailing rental rate per square foot for the Premises.
In addition to the foregoing, It shall not be unreasonable for Landlord to wlthhold such consent if Landlord's
mortgage lender falls to give Its consent to such assignment or subletting.
In no event shall Landlord be liable to Tenant for any damages (direct or consequential) allegedly suffered by
Tenant or any such assignee or subtenant as a result of Landlord's failure to consent to Tenant's proposed assignment or
sublease.
Tac0Bel1-KFC-0apitsICity-Final
September 27, 2005 1 Pine/JTF 24
ARTICL 16: DEFAULTS BY
TENANT
Section 16.01: EVENTS OF DEFAULT.
This Lease la made upon the condition that Tenant shall punctually and faithfully perform and ft
covenants, conditions and agreements by It to be performed as In this Lease set forth. In addition to eve
stated In this Lease
as Events of Default, the following shall be deemed to be an Event of Default (eachof all of the
sometimes referred to as an "Event of Default" in this Lease): nts elsewhere
which is
(a) the failure by the Tenant to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or
installment or year-end adjustment thereof H such failure continues for ten (10) days after written notice t
Landlord to Tenant; or any
hereof by
(b) the failure of Tenant to submit Its Design Drawings on or before the Design Drawl
accordance with Section 2.03(c) or commence Tenant's Work on or before the Construction Commencement
accordance with the terms and conditions of Section 2.03(c) within fifteen 15) days ?$ Submission Date in
failure; or ( ) ys after written notice to Tenant of such
(c) the fallure of Tenant to open Its business to the public in the Premises on or prior to the date on which
Tenant Is required to open Its business to the public pursuant to the terms and conditions of Section
open the Premises, or to keep the Premises open, on the days and hours required by this Lease, or N Tenant va
abandons the premises; or 2f the failure to
catea or
(d) the failure of Tenant to observe or perform any of the covenants, terms or conditions set forth in Article 15
(relating to assignment and subletting); or the
sale
of a which is (outside the ord nary course of Tenants business;rti
or of Tenant's property located In the Premises in a manner
(f) the failure to maintain inventory levels and employee staff in accordance with the
hereof; or provisions of Article 7 tition
of any f Addition(9)Rent repether sums rentinuation served hereundailofe t totitimely pay any Minimum me)Y report Gross Sales as provided in Section 4 08 hereof
where such failure shall continue or be repeated for two (2) consecutive months, or for a total of threentage Rent andny
.
period of twelve consecutive months; or
(3) months in any
(h) repetition of any failure to observe or perform any of the Lease covenants, terms or conditions more than
three (3) times, In the aggregate, in any period of twelve (12) consecutive months; or
(1) any other failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth
In this Lease where said failure continues for a
Tenant (unless such failure cannot reasonably be cured w1tthInirty thirty (30) (30) days after
after written notice thereof from Landlord to
said failure within thirty (30) days and continues diligently to pursue the curing of the same until completed); or
and Tenant shall have commenced to cure
U) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor
defined) or a substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution, attachment or
other Process of law upon, on or against the estate created In Tenant hereby; the application for or the a (after
liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant or Guarantor or
for all or any substantial appointment of a rt of
the
pro
Tenant
cont
period (30) days): the Insolvencyaof Ten ant or Gus antor of enantaIn bank(and equ? s nse; any la signment by of thirty
nues
Guarantor for the benefit of creditors; or
g t by Tenant or
(k) the commencement of a case by or against Tenant or Guarantor, under any Insolvency,
creditor adjustment or debtor rehabilitation laws, state or federal; or the determination by the Tenant or Guarantor to
request relief under any insolvency proceeding, Including any Insolvency, tme bankruptcy,
rehabilitation laws, state or federal, and In no event shall the Premises or Tenant's Interest In this Lease become an asset
In any such proceedings: or bankruptcy, creditor adjustment or debtor notwithstand
P Y Minimum Rent and/or Percentage Rent and/or Additional
ation Rent as (o)f the first day of e cihmtonth durriing the ITerm in th event that an Insolvency , bankruptcy
filed by or against the Tenant or any Guarantor, the Tenant shall be obligated to pay all such Minimum Rent and/or
Percentage Rent and/or Additional Rent on a ratable basis from the date of the commencement f any similarsuch proceeding
through the end of the month In which such proceeding Is commenced.
Section 16.02: LANDLORD'S REMEDIES.
(a) Landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure to insist
upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein
shall not be deemed a waiver or relinquishment for the future of such performance, right or remedy. In addition to any and oth
Landlord
s Lease
or I anld remedies If there shalles of
occur any Eventiof Default none of which shall bprovided, e construeddas an shall election have to the following rights
other remedies then or In the future:
forego any of the
(1) accelerate the whole balance of Rent, and all other sums payable hereunder by Tenant, for the
entire balance of the Term, or any part of such Rent and other sums; and/or
(11) to terminate this Lease, and to re-enter the Premises and take possession thereof and to remove
all persons and contents therefrom, and Tenant shall have no further claim or right hereunder; and/or
(111) to bring suit for the collection of Rent and for damages without entering into possession of the
TacoBell-KFC-CapltalCity-Final
September 27, 2005 1 Plree/JTF
25
Premises or terminating this Lease; and/or 40
(Iv) to terminate Tenant's right of possession of the Premises by summa
without terminating this Lease, in the event of any re-entry and termination of possssion, La dlord hag haven the right
but not the obligation to remove any personal property from the Premises and elther treat such property as abandoned, or
at Landlord's option, place the same in storage at a public warehouse at the sole cost, expense and risk of the Tenant;
and/or
(v) to enter the Premises and without further demand or notice proceed to distress and sale of the
goods, chattels, personal property and other contents there found and to levy the Rent, and Tenant shall pay all costs and
officers' commissions, Including watchmen's wages and sums chargeable by Landlord, and further Including charges
which Landlord may Impose by statute as commissions to the constable or other person making the levy, and In such
cases all costs, officers' commissions and other charges shall Immediately attach and become part of the claim of
Landlord for Rent, and any tender of Rent without said costs, commissions and charges made, after the Issuance of a
warrant of distress, shall not be sufficient to satisfy the claim of Landlord.
(b) Conf_ ossqL udoment Rent Deleted.
(c) Confession of Judament Possession Deleted.
(d) Deleted.
(e) Tenant expressly waives;
(1) The benefit of all laws, now or hereinafter In force, exempting any goods In the Premises or
elsewhere from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease.
(II) The benefit of all laws now made or which may hereafter be made regarding any limitation as to
the goods upon which, or the time within which, distress is to be made after the removal of goods, and Tenant further
relieves Landlord of the obligation of proving or identifying such goods; It being the purpose and intent of this provision that
all goods of Tenant whether upon the Premises or not, shall be liable to distress for rent.
(ill) The right to Issue a writ of replevin for the recovery of any goods seized under a distress for Rent
or levy upon an execution for Rent, damages or otherwise.
(iv) The right,to delay execution on any real estate that may be levied upon to collect any amount
which may become due under the terms and conditions of this Lease and any right to have the same appraised.
(v) All rights under Act of April 5, 1957, No 20 and all supplements and amendments thereto, hereby
authorizing the sale of any goods distrained for rent at any time after seven (7) days from said distraint without any
appralsement and condemnation thereof.
(VI) The right to three (3) months and/or fifteen (15) or thirty (30) days' notice required under certain
circumstances, or any other notice required or otherwise provided by statute as a condition to the commencement of
summary proceedings or an action for possession or to the termination of this Lease or an retaking of
hereby agreeing that the respective notice periods provided for In this Lease shall be sufficient In any suchscase.on, Tenant
(vii) Landlord shall use reasonable efforts to relet the Premises so as to mitigate damages.
Section 10.03: DAMAGES.
(a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this
Lease, Landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
terms and conditions as Landlord shall reasonably deem appropriate (which may be less than or exceed the balance of the
Term), and to the extent Landlord receives the Rent therefor, Landlord shall apply the same first to the payment of such
reasonable expenses as Landlord may have incurred In recovering possession of the Premises (Including, without
limitation, legal expenses and reasonable attomays' fees) and for putting the Premises Into good order and condition and
repairing or remodeling or altering the same for reletting, and any other expenses, commissions and charges paid,
assumed or Incurred by or on behalf of Landlord In connection with the reletting of the Premises (collectively the "Costs of
Relstting"), and then to the fulfillment of the covenants of Tenant under this Lease. Tenant shall pay to Landlord the Rent
up to the time of such termination of Tenant's right to possession under this Lease, and thereafter, Tenant covenants to
pay Landlord until the end of the Term of this Lease the equivalent of the amount of Rent under this Lease less the net
avails of such reletting, if any, during the same period, and the same shall be due and payable by Tenant to Landlord on
the dates such Rent Is due under this Lease. Any reletting by Landlord shall not be construed as an election on the part of
the Landlord to terminate this Lease unless a notice of such Intention is given by Landlord to Tenant. Notwithstanding any
reletting without termination of this Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event,
Landlord shall not be liable for Tenant shall not be entitled to any Rent received by Landlord In excess of Rent provided for
in this Lease. Landlord may file suit to recover any sums falling due under the terms of this subsection from time to time,
and no suit or recovery of any portion due Landlord hereunder shall be a defense to any subsequent action brought for any
amount not theretofore reduced to judgment In favor of Landlord,
(b) If Landlord elects to terminate this Lease Instead of terminating only Tenant's right to possession,
Landlord shall have the right to Immediately. recover against Tenant as damages for 1038 of the bargain, and not as a
penalty, the excess (If any), as reasonably determined by Landlord, of (1) the present value of the projected Rent payable
by Tenant under this Lease (as determined by. Landlord on the basis of the amounts of Additional Rent which would have
been payable pursuant to this Lease for the full calendar year prior to the calendar year In which the default occurred,
Increasing annually on the first of each year after such calendar year at the rate of six percent (6%) per annum) that would
have accrued for the balance of the Term plus any other amount necessary to corn
proximately caused by Tenant's failure to perform its obligations under this Lease, Including sea on bile attorneys fees and
Interest on all sums due Landlord at the Default Rate (hereafter defined), less (il) the then present fair market rental value
of the Premises for the balance of the Term as reasonably determined by Landlord, taking Into account among other
things, the condition of the Premises, market conditions and the period of time the Premises may remain vacant before
Landlord Is able to relet the same to a suitable replacement tenant, and the Costs of Reletting (as defined above) that
Landlord may Incur In order to enter Into a replacement lease ("Benefit of the Bargain Damages"). Notwithstanding
anything to the contrary contained In this Lease, If, subsequent to the termination of this Lease and the recovery of
damages from Tenant pursuant to this subsection (b), Landlord relate the Premises for an effective Rent higher or lower
than the Rent: assumed for purposes of calculating the Benefit of the Bargain Damages, the Benefit of the Bargain
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September 27, 2005 1 Piree/JTF 26
Damages shah not be recalculated and Lan, shall be entitled to retain all of the proce of such reletting.
(c) The "Default Rate means the rate of Interest which is two percent (2%) over the announced prime rate of
PNC Bank, Philadelphia, Pennsylvania or any successor thereto or other bank selected by Landlord,
Section 16.04: LANDLORD'S SELF-HELP,
In addition to Landlord's rights to self-help set forth elsewhere In this Lease, If Tenant at any time falls to perform
any of its obligations under this Lease (excluding those' obligations pertaining to the actual operation of Tenant's business)
In a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant at
least ten (10) business days prior written notice of Its election to do so (In the event of an emergency
be required) to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform
such obligations, In such event, Landlord's costs and expenses Incurred therein shall be paid for by Tenant as Additional
Rent, forthwith, upon demand therefor, with Interest thereon from the date Landlord performs such work at the Default
Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom.
Section 16.06: LEGAL EXPENSES.
(a) In the event that Landlord should retain counsel and/or Institute any suit against Tenant for violation of or
to enforce any of the covenants or conditions of this Lease, or should Tenant Institute any action against Landlord for
violation of any covenants or conditions of this Lease, or should either party Institute a suit against the other for a
declaration of rights hereunder, or should either party Intervene in any suit in which the other Is a
party, x enforce and
reasonable fees to its attorney(s) In thenecti n therie?witha in any such suit shall be entitled to all Its costs, expenses and
(b) In the event that a bankruptcy proceeding is filed by or against Tenant under any chapter of the
Bankruptcy Code, or Tenant makes an assignment for the benefit of creditors or commences or otherwise becomes to
subject .Of any insolvency, receivership or similar proceeding, Landlord shall be entitled to recover its reasonable attorneys'
fees and costs Incurred in or In connection with any such proceeding from Tenant or any trustee, custodian, receiver,
assignee or other representative acting on Its behalf, all of which fees and expenses shall constitute, in addition to any
other sums due and owing under this Lease (1) an obligation of Tenant hereunder, and (11) a component of any cure claim
assertable by Landlord under 11 U.S.C. § 365(b) of otherwise.
ARTICLE 17: LIABILITY OF LANDLORD
Section 17.01: LANDLORD'S DEFAULT,
Except as otherwise provided In this Lease, Landlord shall be in default under this Lease If Landlord fails to
perform any of Its obligations hereunder and said failure continues for a period of thirty
thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thi,T
have commenced to cure said failure within said thirty (30) days and continues diligently to
ure ethe curing of the same
If Landlord shall be In default under this Lease and, N, as a consequence of such defaulte(30) days and nan Tenant shall recover la rmo money
judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right, title and Interest of Landlord in the Shopping Center as the same may
then be encumbered and Landlord shall not be liable for any deficiency, In no event shall Tenant have the right to levy
execution against any property of Landlord other than Landlord's right, title and Interest In the Shopping Center as
Lease.
herelnbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this
Section 17.02: TRANSFER OF LANDLORD'S INTEREST.
In the event of the sale or other transfer of Landlord's right, title and Interest in the Premises or the Shopping
Center (except in the case of a sale-leaseback financing transaction in which Landlord Is the lessee), Landlord shall
transfer and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by
Landlord pursuant to Section 2.02 of this Lease, and Landlord thereupon and without further act by either party hereto shall
be released from all liability and obligations hereunder derived from this Lease arising out of any act, occurrence or
omission relatlhg to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant shall
have no right to terminate this Lease nor to abate Rent nor to deduct from nor set-off nor counterclaim against Rent
because of any sale or transfer (Including without limitation any sale-leaseback) by Landlord or its grantees, successors or
assigns. Neither Landlord's mortgagee (or Its designee) nor the purchaser at a foreclosure sale shall be liable to Tenant
for the return of Tenant's Security Deposit unless and until Landlord actually delivers the Security Deposit to such
mortgagee or purchaser or their designee.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 18.01: SUBORDINATION OF LEASE.
Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be, subject and subordinate to
any lease wherein Landlord Is the lesseetrustandwto the lien of any or all mortgages or deeds of trust, regardless of whether
such lease, mortgages or deeds of no exist or may hereafter be created with regard to all or any
part of the
Shopping Center, and to any and all advances to be made thereunder, and to the Interest thereon, and all modifications,
consolidations,; renewals, replacements and extensions thereof. Such subordination shall be effective without the
execution of any further Instrument. Tenant also agrees that any lessor, mortgagee or trustee may elect to have this
Lease prior to any lease or lien of Its mortgage or deed of trust, and In the event of such election and upon notification by
such lessor, mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said lease,
mortgage or deed of trust, whether this Lease Is dated prior to or subsequent to the date of said lease, mortgage or deed
m trust,
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Section 18.02: TENANT'S ATTORNMENT.
In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed Of trust referred
to in Section 18.01 covering the Premises or In the event of the termination of any lease referred to in Section 18.01
wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attorn to and recognize the purchaser
or Landlord's lessor as Landlord under this Lease. Tenant's attomment shall be subject to the purchaser or assignee
recognizing the validity and continuance of this Lease and agreeing not to disturb Tenant's possession of its Premises
under the terms of this Lease so long as Tenant shall not be In default (subject to Tenant's right to cure any default in
accordance with the provisions of this Lease).
Section 18.03; INSTRUMENTS TO CARRY OUT INTENT.
Tenant agrees that, upon the request of Landlord, or any such lessor, mortgagee or trustee, Tenant shall execute
and deliver whatever reasonable Instruments may be reasonably required for such purposes and to carry out the intent of
this Article 18; and In the event Tenant falls to do so within twenty (20) days after demand in writing, Tenant shall be
deemed to have committed an Event of Default.
Any document executed by Tenant evidencing such subordination shall provide that Landlords mortgages
purchaser shall not be liable for any action or omission of any prior landlord (including Landlord) under the Lease, subject
to any off seta,. claims or defenses which Tenant might have against prior landlord (including Landlord), bounby any Rent
which Tenant might have paid for more than the current month to any
amendment or modification of the Lease or any other agreement concrning the Lease(madelnwiithoutt mortgagee's and written any
consent or responsible in any way for any security deposit which was delivered to Landlord but was not subsequently
delivered to such mortgagee or purchaser. g gee's written
ARTICLE 19: ESTOPPEL CERTIFICATES
Section 19.01: TENANT'S AGREEMENT TO DELIVER.
From time to time within twenty (20) days after request in writing therefor from Landlord
and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and,Tenant Landlord agrees and to execute
addressee may rely thereon), a statement In writing In form and substance reasonably saflsfactory to Landlord (herein
any such
called "Tenant's Estoppel CertMicate^), certifying as to such matters as may be reasonably requested by Landlord.
Tenant exprespjy agrees that Landlord may assign Its Interest In the Tenant's Estoppel Certificate to its lender(s) at any
time who may act in material reliance thereon.
Section 19.02: FAILURE OF TENANT TO PROVIDE.
In the event that Tena
t falls written request: herefor, Tena tnshall be deemed to have acommittepd an Event offDefiault twenty (20) days after Landlord's
ARTICLE 20: QUIET ENJOYMENT
Section 20.01: FAITHFUL PERFORMANCE.
the a Upon Payment by the Tenant of the Rent herein provided for, and upon the observance and performance of all of
9reemen covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably
and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of
this Lease, and mortgages, leases and other matters to which this Lease Is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21.01: DELIVERY AFTER TERM.
Tenant shall deliver up and surrender to Landlord Possession of the Premises upon the expiration or earlier
termination of the Term, broom clean, free of debris, in
good order, condition and state of repair and In compliance with
Section 14.01 (excepting as may be Landlord's obligation under this Lease, damage by casualty and ordinary wear and
tear), and shall deliver the keys to the management office of Landlord or to such other place as may be designated from
time to time by notice from Landlord to Tenant. If not sooner terminated as herein provided, this Lease shall terminate at
the and of he Term as provided for In Article 3 without the necessity of notice from either Landlord or Tenant to terminate
the same.
Section 21.02. EFFECT OF HOLDING OVER; RENT.
If Tenant or any party clalming under Tenant remains In possession of the or expiration or termination of this Lease, no tenancy or Interest In the Premises shallPresult therefrom any but part such thereof, holding after any
shall be an unlawful detalner and all such parties shall be subject to Immediate ouster and removal, and (a) Tenant shall
over
pay upon demand to Landlord for any period when Tenant shall hold the Premises after the Term has terminated or
expired, as Ilgtaldated rent for such period, a sum equal to all Percentage Rent and Additional Rent provided for In this
Lease plus an amount computed at the rate of one and one-half (1 'h) times the Minimum Rent for such period, and (b)
Tenant shall Indemnify and hold harmless Landlord from all loss, cost, expense and liability whatsoever resulting from
such holding over, Including, without limiting the generality of he foregoing, any claims made by any succeeding tenant
based on such holding over. However, If the parties are in good faith negotiating for an extension or renewal of this Lease,
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the increased Minimum Rent shall not be apeble.
ARTICLE 22: CONDEMNATION
Section 22.01~ ALL OF PREMISES TAKEN.
If the whole of the Premises shall be taken or condemned either permanently or
quasi-publi temporarily for any public or
c use or purpose by any competent authority In appropriation proceedings or by any right of eminent domain or
by agreement; or conveyance In lieu thereof (each being hereinafter referred to as "Condemnation"), this Lease shall
terminate as of the day possession shall be taken by such authority, and Tenant shall pay Rent and perform all of its other
obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as shall have been paid in
advance for a period subsequent to the date of the taking of possession.
Section 22.02; LESS THAN ALL OF PREMISES TAKEN.
If less than all but more than twenty-five percent (25°x) of the GLA in the Premises is taken by Condemnation, or N
(regardless of the percentage of the GLA In the Premises which Is taken) the remainder of the Premises cannot be used
for the carrying on of Tenant's business, then in either event Landlord or Tenant shall each have the right to terminate this
Lease upon notice In writing to the other party within ninety (00) days after possession is taken by such Condemnation. If
this Lease Is so terminated, it shall terminate as of the day possession shall be taken by such'authority, and Tenant shall
pay Rent and perform all of its obligations under this Lease up to that date with a
Rent as may have been paid In advance for a period subsequent to the date of the t kin9 loof to refund possession, n. If this Landlord of Lease Is
any
not so terminated, It shall terminate only with respect to the parts of the Premises so taken as Of the da of
shall be taken Eby such authority, and Tenant shall pay Rent up to that day with a pro
p y possession
Rent as may have been paid for a period subsequent to the date of such taingandnthereafter, the Rentrand the
applicable Break Point shall be reduced in direct proportion to the amount of GLA of the Premises taken and Landlord
agrees, at Landlord's cost and expense, as soon as reasonably
possible to restore the Premises on the land remaining to
a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible);
provided that'Landlord shall not be required to expend more on such restoration than an amount to the
condemnation award received by Landlord (less all expenses, costs, legal fees and court costs Incurred by Lanidlord in
connection with such award).
Section 22.03; SHOPPING CENTER TAKEN.
If any part of the Shopping Center Is taken by Condemnation so as to render, in Landlord's
remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease
upon notice In:writing to Tenant within one hundred twenty (120) days after judgment, mdo the
Landlord so terminates this Lease, It shall terminate as of the da possession Is taken by such Condemnation. F the mnin authori and
Tenant shall p?y Rent and perform all of Its other obligations under possession s Lease uptto hatd to withda proportionate efund
by Landlord of any Rent as may have been paid In advance for a period subsequent to such possession.
Section 22.041 OWNERSHIP OF AWARD.
As between Landlord and Tenant, all damages for any Condemnation of all or an
Including, without limitation, all damages as compensation for diminution In value of the leasehold, reversion and fee,nand
Tenant's leasehold Improvements, shall belong to the Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord all Its right, title and Interest to any such award. Although all
damages In the event of any Condemnation are to belong to the Landlord, whether such damages are awarded as
compensation ; for diminution in value of the leasehold, reversion or fee of the Premises, or Tenant's leasehold
improvements,: Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord,
such compensation as may be separately awarded or recoverable by Tenant In Tenant's own right for or on account of any
cost or expense which Tenant might Incur in removing Tenants merchandise, furniture, fixtures and Unamortized costs of
Tenant's leasehold improvements,
ARTICLE 23: MISCELLANEOUS
Section 23.01; INTERPRETATION. ons
table matter Theonvenience anid In no way mplify define, limit, constre,terms
orLease
or describe he scope this
this Lease nor in any way affect this Lease. s
Intent rot such Section as of
(b) If more than one person or corporation Is named as Landlord or Tenant in this Lease and executes the
same as such, or becomes Landlord or Tenant, then and In such event, the words "Landlord" or "Tenant' wherever used in
this Lease are: intended to refer to all such persons or corporations, and the liability of such persons or corporations for
compliance with and performance of all the terms, covenants and provisions of this Lease shall be joint and several.
(c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other
genders and the use of the singular shall Include the plural.
(d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and
agreements as though the words Importing such covenants and agreements were used in each separate provision hereof.
Furthermore, Bach covenant, agreement, obligation and other provision contained In this Lease is, and shall be deemed
and construed'as a separate and Independent covenant of the party bound by, undertaking or make the same, and not
dependent on any other provision of this Lease unless expressly so provided.
(e) ' Although the provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or
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against Landlord or Tenant, but this Lease l r'11\ Aft
A2 be Interpreted In accordance with the e
effort to reach the Intended result. g x al tenor of the language in an
Section 23.02: RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party,
relationship of pdncipal and agent or of partnership or of Joint venture between the parties hereto, It being understood and
the
agreed that neither the method of computation of Percentage Rent, nor any other provision contained herein, anygacts
of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of
landlord and tenant nor cause Landlord to be responsible in any way for acts, debts or obligations of Tenant.
Section 23.03. NOTICES.
Any notice, demand, request, approval, consent or other Instrument which may be or is required to be given under
this Lease shall be in writing, and, shall be deemed to have been given upon receipt or refusal theaddressee,
States reglateeed'or certified mall, return receipt requested, postage prepaid and received or refused a or
(a) when mailed by UnRed
(b) when sent'by courier guarantying overnight delivery, addressed to Landlord or Tenant at the respective addresses set
forth in the Fundamental Lease Provisions and/or such other address or addresses as either party may designate by
notice to the other in accordance with this Section and received or refused by the addressee. Any notice by the Landlord
may be given on Its behalf by Agent or by an attorney for Landlord or Agent. Any notice properly sent to Tenant shall be
deemed effective whether or not a copy Is sent to the address designated In the Fundamental Lease Provisions to receive
a copy of such notice.
Section 23.046 SUCCESSORS.
This Lease and the covenants and conditions herein contained shall Inure to the benefit of and be binding upon
(subject to Article 17) Landlord, Its successors and assigns, and shall be binding upon Tenant, its heirs, successors and
assigns and shall Inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has
been consented to by Landlord in writing. Nothing in this Section 23.04 shall be deemed to require Landlord to give any
such consent., All of Tenant's obligations during the Term pursuant to section 4.05, 4.06, 4.07, 5.01, 5.02(b), 7.03, 8.03(c),
11.03 and 23.17 shall survive the expiration or earlier termination of this Lease.
Section 23.05: BROKER'S COMMISSION.
Tenant warrants that, except for Agent, It has dealt with no broker in connection with this Lease, and agrees to and
shall defend, Indemnify and save Landlord harmless from all claims, actions, damages, coats and expenses and liability
whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through Tenant for a commission,
this Lease.
finders or like fee in connection with this Lease. Landlord shall pay the fee or commission due Agent in connection with
Section 23.06: UNAVOIDABLE DELAYS.
In the event that either party hereto shall be delayed or hindered In or prevented from the performance of any act
required hereunder by reason of strikes, lockouts, Inability to procure labor or materials, failure of power, restrictive
governmental laws or regulations, riots, Insurrection, war (whether actual or threatened), lack of access to the Shopping
Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a similar or dissimilar
nature beyond the reasonable control of the part delayed In performing work or doing acts required under the terms of this
Lease, then performance of such act, but not Tenant's obligation to pay Rent, shall be excused for the
period the period for the performance of any such act shall be extended for a period such delay.
During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excseo eof the nant delay
completing construction of the Premises within Tenant's Construction Period unlessu Tenant gives written onotice of the
delaying event to Landlord within twenty (20) days of the occurrence of such delaying event. Such written notice shall
specify the n;ture of the delaying event and the number of days of delay claimed to result therefrom. Tenant's
Construction Period shall be extended for a period equivalent to the period of actual delay. After the Rent Commencement
Date the provisions of this Section 23.06 shall not excuse Tenant from the prompt by Tenant under this Lease and such delay shall not extend the Term unless such delay is caused by Landlord's acts or
omissions. Oblays or failures to perform resulting from lack of funds or the unavailability abi ityf of ea tpaand all rticular t contractor r
personnel shall not be deemed delays beyond the reasonable control of a party.
or
Section 23.07: SEVERABILITY.
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 Invalid and the other of which would render the provision valid, then the provision shall
have the me
aning which renders it valid, if any term or provision, or any portion thereof, o this Lease, this the application
thereof to any person or circumstances shall, to any extent, be invalid or unenforceable
of ouch or provision to the rsons Or ces other than those as
unenforceable, , the remainder of this Lease, or the
lshalltnot be erected thereby, and each to a dtprovision of this Lease shaiit a valid atns held Invalid or
the fullest extent permitted by law. and be enforced to
Section 23.08., TIME OF ESSENCE.
Time is of the essence with respect to the performance of the respective obligations of Landlord and Tenant set
forth In this Lease.
Section 23.09; OTHER TENANTS; RELOCATION OR TERMINATION.
(a) Landlord reserves the absolute right to effect such other tenancies in the Shopping Center as Landlord
shall determine In the exercise of Its sole business judgment. Tenant hereby acknowledges this Lease not
deemed or interpreted to contain, by Implication or otherwise, any warranty, representatirhagree ent on shall ll part of
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Landlord that any department store or reglu al or national chain store or any other m4 rant shall open for business or
occupy or continue to occupy any premises In or adjoining the Shopping Center during the Term or any or that
Tenant shall generate a certain amount of Gross Sales or that any reimbursable amount payable by en Tenant shallf be any
specific amount, and Tenant hereby expressly waives all claims with respect thereto and acknowledgeli that Tenant is not
relying on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering Into
this Lease or as condition of this Lease or as a covenant by Landlord.
(b) Deleted.
Section 23.10. APPLICABLE LAW.
The laws of the state In which Landlord's Building is located shall govern the validity, enforcement of this Lease. If either party Institutes legal suit or action for enforcement of any obligation contained herein,
it Is agreed that venue for such suit or action shall be In the In in which the Premises are located, performance and
Section 23.11 WAIVER. The
waiver
of an deemed(to be a waive of any subsequent breach oterm f he same ortany other terms, covenant, agreement contained
condition hereiinn
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, agreement or condition of this Lease, other than the failure of Tenant
to pay the paHcular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of
acceptance ofsuch Rent. No covenant, term, agreement or condition of this Lease shall be deemed to have been waived
by Landlord, unless such waiver be In writing and executed by Landlord.
(b) No waiver of any covenant, term, agreement or condition of this Lease or legal right or remedy shall be
implied by tho1ailure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord In respect to one
or more tenants or occupants of Landlord's Building or any other part of the Sho
favor of any other tenant. Landlord's consent to, or approval of, any act by Tenant requiring Landlord's consent or
approval shall ;not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant. No consent or approval by Landlord shall operate to change any condition, requirement or other provision
of this Lease an any occasion unless made in writing and executed by a general partner (or executive officer) of Landlord.
Section 23.12'. ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed
to be other than on account of the earliest stipulated Rent nor shall any endorsement or statement on any check or any
letter accompanying any such check or payment as Rent or the like be deemed an accord and satisfaction and Landlord
may accept such check or payment without prejudice to Landlord's rights and remedies to recover the balance of such
Rent or pursue any other right and remedy provided for In this Lease or available at law or In equity. If Landlord shall direct
Tenant to pay' Rent to a "lockbox" or other depository whereby checks Issued In payment of Rent are Initially cashed or
deposited by a person or entity other than Landlord (albeit on Landlord's authority) then, for any and all purposes under
this Lease: (a)I Landlord shall not be deemed to have accepted such payment until ninety (90) days after the date on which
Landlord shall! have actually received such funds, (b) Landlord shall be deemed to have accepted such payment If (and
only If) within Bald ninety (110) day period, Landlord shall not have refunded (or attempted to refund such payment to
Tenant and (c) Landlord shall not be bound by any endorsement or statement on any check or any letter accompanying
any check or'payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction.
Landlord or Lp' ndlord's bank may accept such check or payment without prejudice to Landlord's right to recover the
balance of sudh rent or pursue any other remedy provided In this Lease, at law or in In th
Immediately preceding sentence shall be construed to place Tenant In default of Tenant's obllga ontto pay Renlt If and for
so long as Terjant shall timely pay the Rent required pursuant to this Lease In the manner designated by Landlord.
Section 23.13, CORPORATE TENANTS.
In the; event the Tenant hereunder is a corporation, the persons g this Lease on hereby covenant and warrant that: the Tenant Is a duly constituted corporation qualinified to do business behalf
the stat eIn which
Landlord's Building Is located; all Tenant's franchise, corporate and other Ilenable taxes have been paid to date; and such
persona are duly authorized by the governing body of such corporation to execute and deliver this Lease on behalf of the
corporation.
Section 23.141 TENANTS GUARANTOR.
Deleted.
Section 23.16 RECORDING.
This Lease shall not be recorded; however Landlord shall have the right to record a short form or memorandum
thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall execute same.
Section 23.161 AGENT OF LANDLORD.
Agent has acted as an agent of Landlord in connection with the execution of this Lease and shall not In any event
be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the terms or conditions of this
Lease or for apty action or proceeding that may be taken by Landlord against Tenant, or by Tenant against Landlord. Any
waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect
to, and as a waiver of any liability of, Agent.
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9 '
Section 23,171 HAZARDOUS MATERIAL.?
(a) As used herein the term "hazardous material" means any flammable, explosive, medical, human or
animal tissues;or substances, hazardous or toxic substance, material or waste (Including, without Ilmhabon, asbestos and
chlorofluorocarbons) which has been, or In the future is, determined by any state, federal or local governmental authority or
any law, ordinince, statute, governmental rule or regulation to be capable of posing a risk of Injury to health, safety or
property and/or the use, storage and/or disposal of which is r ulated b any
limitation, all of those materials and substances designatedeas hazardous orotoc by to Itt rity,
g vemming, hwithout aving
jurisdiction ovgr the Premises, the U,S. Environmental Protection Agency, the Consumer Products Safety Commission, the
Food and Drug Administration or any other governmental agency now or hereafter authorized to regulate materials and
substance. Tenant shall not cause or permit any hazardous material to be installed in the Premises as a part of Tenant's
Work or otherMse brought upon, used, kept, stored or disposed of in or about the Premises or the Shopping Center by
Tenant, Its agents, employees, contractors or Invitees. Notwithstanding the foregoing, Tenant may handle, store, use and
dispose of products containing small quantities of hazardous materials (such as aerosol cans containing Insecticides, toner
for copiers, pants, varnishes and cleaning supplies) of Insignificant quantities stored in sealed containers and used In
accordance with manufacturers' requirements.
(b) If the Premises, any equipment (including, without limitation, HVAC equipment), trade fixtures or other
mechanical apparatus therein contain any hazardous materials Installed by Tenant, its agents, employees, contractors or
invitees, Landlord, at Its election, shall have the right to (1) cause Tenant to remove and properly dispose of same, all at
Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by
Landlord and Ps professional consultants, and Landlord shall have the right to monitor such work or (ii) perform the
removal and disposal thereof Itself, in which event Tenant shall comply with all reasonable requirements Imposed Landlord with respect to the performance of such work, Including without limitation closing the Premises for business and
remaining closied during the performance of such work, and Tenant shall reimburse Landlord, on demand, for the cost
Incurred by La6dlord in performing such removal (Including Landlord's cost of professional consultants).
(c) Tenant shall:
(I) Promptly Provide Landlord with copies of any document, correspondence,
report or communication, written or oral, relating to hazardous materials
at or affecting the Shopping Center (x) to or from any regulatory body, or
(y) stating a basis for any potential liability or responsibility of Tenant,
Landlord, or the Shopping Center: including all such documents,
co
rrespondence, reports or communications prepared by or on behalf of
Tenant. In
provide copies addition to the above, at of any and all records and Landlord's
request, Tenant shall
mmunications whatsoever
relating to hazardous materials at or affecting the Shopping Center.
(11) Immediately notify Landlord In the event of a suspected or confirmed
release of a hazardous material or violation of environmental laws at or
affecting the Shopping Center and caused by or related to the operations
of Tenant, Its employees, contractors, agents, or any party acting on
behalf of Tenant and, at Land'lord's sole option, either promptly remediate
or correct such release or violation to Landlord's satisfaction or reimburse
Landlord's coat of remedlatlon (including reasonable attorneys' and
consultants' fees) all as set forth in (b) above; and compensate Landlord
and/or third parties for all resultant damage.
(111) Permit Landlord reasonable access to the Premises for the purpose of
conducting an environmental audit or testing, the cost of which shall be
borne by Landlord unless the results indicate activity prohibited by
environmental laws or hereunder.
(d) in accordance with the Occupational Safety and Health Administration Asbestos Rule (1995), 59 Fed,
Reg. 40984, as amended and supplemented ("OSHA Asbestos Rule"), Landlord hereby notifies Tenant of the presence
or possible presence of asbestos containing materials ("ACMs") and/or presumed asbestos containing materials
("PACMs") (aq such terms are defined in the OSHA Asbestos Rule) within the Premises or adjoining enclosed common
areas, if any. The ACMs and PACMs may take the form of pipe wrap, vinyl asbestos flooring, sprayed on or trowled on fire
proofing, acou?sticai plaster, insulation, textured ceiling
PACMs within the Premises or adjoining Common Areasnmaydbethasceforms. secific location rtained byeTena t requestingoin wyritng from
Landlord, without cost or expense to Tenant, the applicable portions of any environmental Impact survey conducted by
Landlord regarlding the Shopping Center. The purpose of Landlord's notification is to make Tenant, Its agents, employees
and contractors aware of the presence or possible presence of ACMs and/or PACMs in the Shopping Center in order to
avoid or mininhize any damage to or disturbance of such ACMs and/or PACMs during the progress of. Tenant's Work
and/or Construction Work. Tenant shall obtain a signed acknowledgment from Its agents, employees and contractors
working in or about the Premises Indicating that such agents, employees and contractors are aware of the presence or
possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to disturb the same during the
performance of Tenant's Work and/or Construction Work. At Landlord's request, Tenant shall deliver to Landlord copies
of such signed; acknowledgments.
(e) ; Tenant shall comply with all applicable Governmental Requirements affecting the Premises, the operation
of Tenant's bupineas at the Premises, and the use and removal of any substances therefrom, including, without limitation,
hazardous materials installed by Tenant, Its agents, employees, contractors or invitees. Such compliance shall include,
Inter alia; (1) the filing by Tenant of all governmental applications and registrations for all substances used, stored,
manufactured,; generated or otherwise In the Premises; (ii) the obtaining of all licenses and
(III) the timely ? Iing from time to time, as required, of all reports and other matters required tore be filed with gove thereto;
authorities ha*ing jurisdiction; and (Iv) notifying each Of Its agents, employees and contractors of thepresence nor
presumed presence of ACMs and PACMs within the Shopping Center as set forth above.
TacoBell-KFC-QapitalCity-Final
September 27, 2005 \ Piree/JTF 32
I
(f) Tenant shall protect, defend idemnhy and hold Landlord harmless o m and against all claims,
actions, Ilens,?demands, coats, damages, punitive damages, expenses, fines and judgments (Includ
attorneys fee Incurred by reason of any actual or asserted failure of Tenant to fully comply with theing legal provisions costa and
Section 23.17 and/or spills or other contamination of air, soil, or water by o t
r resulting from any of his
irlaterlalS
Installed by T nent, Its agents, employees, contractors or invitees at or around the Premises or the Shopping Center or
resulting from removal thereof.
(g) Upon ten (10) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver to
Landlord a written statement In form satisfactory to Landlord certifying (l) If true, that Tenant has not disposed of any oil,
grease, toxic, br hazardous material, at the Premises or (11) that any such substances used, processed or generated at the
Premises havo been disposed of properly In accordance with all applicable Governmental Requirements. If Tenant Is
unable to certffy either of the above, Tenant shall so notify Landlord and give Landlord the details resulting in Tenant's
Inability to so gertlfy.
(h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Lease
free of hazardopus materials brought thereon by Tenant and those acting on Its behalf and In a condition which complies
with all Governmental Requirements, recommendations of consultants hired by Landlord, and such oth
requirements is may be Imposed by Landlord. er reasonable
(1) This Section shalt survive the expiration or sooner termination of this Lease.
Section 23.1* FINALIZATION OF CHARGES.
Tenara's failure to object to any statement, Invoice or billing rendered by Landlord within a
after receipt thereof shall, at Landlord's option, constitute Tenant's acquiescence with respect thereto and shall ender
such statement, Invoice or billing a final and binding account stated between Landlord and Tenant.
Section 23.19! PRIOR LEASE.
Deleted.
Section 23.201 FINANCIAL INFORMATION.
Tenant shall at any time and from time to time within forty-five (45) days of written request from Landlord, deliver
to Landlord, Tenant's annual report (or Its equivalent) as may be requested by Landlord, any mortgagee or prospective
mortgagee or purchaser or prospective purchaser.
Section 23.211 SPRINKLER CHARGE.
Deleteld.
Section 23.221 NOTICE TO MORTGAGEE.
If the Molder of any mortgage which has a Ilen against the Shopping Center or an
written notice the existence of such lien, then Tenant shall, so long as such mort y part thereof forwards to Tenant
to such Ilenhor0er the acme notice and opportunity to correct any default as is required to Is ousndn, required o give
betgivenito Landlo d undter this
Lease, but such notice of default may be given by Tenant to Landlord and such Ilenholder concurrently.
Section 23.231 WAIVER OF JURY TRIAL.
Landlgrd and Tenant hereby waive all right to a trial by jury in any litigation related to this Lease including any
mandatory counterclaim or cross claim.
Section 23.241 CONFIDENTIALITY.
It Is agreed and understood that Tenant may acknowledge only the existence of this Lease by and between
Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained In this Lease to an
tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or assignee of such tenant or
occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in this Section 23.24 shall cause
Landlord irreparable harm. The terms and provisions of this Section 23.24 shall survive the termination of this Lease
(whether by laase of time or otherwise).
Section 23.251 RIGHT OF FIRST REFUSAL.
As a ined for suffers he flll g age ally it o as petitioniu ntderrany chapter of the United States Bankruptcy Code, nor if proceedings files
reorganizationlor composition with creditors under any federal or state law are Instituted by or against Tenant and Tenant
or Tenant's trustee (as the case may be) subsequently attempts to assign this Lease or Tenant's Interests In this Lease
pursuant to 11! U.S.C. § 366 or otherwise, Landlord shall have the right of first refusal to purchase and assume this Lease
and Tenant's Interests thereunder (collectively "Tenant's Leasehold Interests") upon the following terms and conditions:
a. If Tenant a Party Offer").;which Third Party Offer Te ant orrTenantgsttrusteet(as theaCass maytbe) deemslacceptable(Ten nhtlor
Tenant's trustee shall first,. deliver a copy thereof to Landlord ("Landlord's RFR Notice"). Landlord shall thereafter have
the right to assume and acquire Tenant's Leasehold Interests described In Landlord's RFR Notlce on the same terms and
conditions as set forth in the Third Party Offer.
b. Within thirty (30) days following Landlord's receipt of Landlord's RFR Notice, Landlord shall notify Tenant
or Tenant's trustee (as the case may be) In writing of Landlord's intention to exercise the right of refusal to acquire
TacoSell-KFC-CapltslCity-Final
September 27, 2006 1 Piree/JTF 33
1/11-) a
Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction
described in Landlord's RFR Notice. If Landlord timely exercises Landlord's right of first refusal, Tenant or Tenants
trustee shall be deemed to be contractualty bound to sell and assign Tenant's Leasehold Ifltefests adusNely to LandWd
in accordance with the terms and conditions set forth in the Third Party offer. if Landlord fails timely to respond to
Landlord's RFR Notice or declines to exercise the right of first refusal granted hereunder in such instance, then Tenant or
Tenant's trustee (as the case may be) shall be free to sell and assign the Tenants Leasehold Interests described in the
Landlord's RFR Notice to the proposed purchaser (the 'Third Party Purchaser") on the same terms and conditions set
forth in the Third Party Offer; provided, however, that the sale and assignment of Tenants Leasehold Interests to the Third
Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this
Lease by the Third Party Purchaser or any successor thereto, shall be and remain subject to the right of refusal herein
granted to Landlord.
C. The parties hereby specifically acknowledge and agree that the right of first refusal granted to Landlord
herein is not intended to operate, and shall not be construed, as a provision that prohibits, restricts or conditions the
assignment of this Lease within the meaning of 11 U.S.C. § 3e5(f) or any similar statutory provision.
Section 23.26: TENANT ALLOWANCE.
Landlord shall reimburse Tenant on account of the cost of Tenant' s Work, in the amount and manner hereinafter
provided, the amount of such reimbursement being referred to herein as "Tenant's Allowance". Landlord shall set off
against Tenant's Allowance all costs, charges, fees, and other sums which Tenant Is obligated to pay pursuant to the
Lease and the Exhibits thereto which have not been paid to Landlord or Agent, as the Case may be, at the time of Tenant's
request for the payment of Tenants Allowance.
A. Amount of Allowance, Tenant's Allowance shall be $150,000.00.
B. Pavment of Allnvranca, Provided Tenant Is not otherwise in default, Landlord shall
Allowance to Tenant after the completion of Tenant's Work, as certified by Tenants architect Pat Tenant's
Landlord's verification that Tenants Work has been completed, payment to be ??? however, to
(25%) of Tenant's Allowance shall be paid upon completion of twee -flue 2 % pro made em as of follows: ( Tenants a) t Work, fied b percent
Tenant's architect and by Tenant which shall submit waivers of liens for all w Performed , t certified
and as verified by Landlord; (b) twen five up to that point to Landlord
(50°%o tY" percent (25%) of Tenant's Apowance shall be paid upon completion of fifty
percent of Tenant's Work, as certified by Tenants architect and by Tenant which shall submit waivers of pens for all
work performed up to that point to Landlord, and as verified Landlord; c twe^tyLft
Allowance shall be paid upon completion of seventy-five (75%) percent of Tenant's Work, as certified by Tenants a s
and by Tenant which shall submit waivers of hens for all work performed up to that point to Landlord, and as verified by
Landlord; and (d) the balance (twenty-five percent (25%)) of Tenant's Allowance shall be paid within thirty (30) days of the
date Tenant opens for business, provided that Tenant furnishes to Landlord, in form and substance acceptable to Landlord
all of the following:
(I) Tenant's affidavit that Tenant's Work has been completed to Tenant's satisfaction and In
complete accordance with the Tenants Final Plans and Tenant's construction requirements and certifying to Landlord the
amount of the accepted bid for Tenant's Work, which affidavit may be reiled upon by Landlord and any deliberate or
negligent misstatement or false statement by Tenant therein may be treated by Landlord as an Event of Default.
(di) The affidavit of the general contractor performing Tenants Work that such Work has been fully
completed in accordance with the Tenant's Final Plans and that all subcontractors, laborers and materialmen engaged In
or supplying materials for Tenants Work have been paid in full.
(iii) An executed and acknowledged Release of Mechanics' Liens executed by Tenants general
contractor and by every subcontractor and supplier of labor and/or materials engaged in or supplying materials to Tenants
Work specifying that such contractor has been paid in full.
(iv) Properly issued certificates evidencing acceptance or approval of the demised premises by
appropriate governmental authorities, including the underwriter's approval certificate for the electrical work done by Tenant
and acceptance of the sprinkler system.
(v) Notice by Tenant to Landlord that Tenant has opened the Premises for business with the public,
and setting forth the date on which such opening occurred.
of Tenant's electrical, plumbing f an"as-built" plans and d other contractors pr?epaarred anfor ealed by Ten nY chit with names and addresses sta
agreem Landlord to secure vii)he releas other of su ht allowance y fica any escrrow acccooun requested pursuant to the Lease or required by
C• Abatement of Tenant Ailowan o, In the event Tenant fails to submit to Landlord the documents referred
to in B, above within two (2) years after the date herein, Landlord's obligation to pay the Tenants Allowance shall be null
and void.
D. In the event this Lease is terminated prior to the natural expiration of the Term, Tenant shall pay to
Landlord, upon termination, the unamortized portion of the Tenant Allowance (amortized on a straight-line basis over the
Term).
Section 23.27: TENANT'S EXCLUSIVE.
After the Required Opening Date, Landlord shall not lease space in the Food Court located In the Shopping Center
to any tenant for the primary use is chicken or tacos (the "Other Tenant"). In the event Landlord violates the provisions of
this paragraph, Tenant's sole and exclusive remedy shall be (1) a thirty percent (30%) reduction in Minimum Rent effective
upon the opening for business in the Shopping Center by the Other Tenant ("Rent Reduction") or (11) in the alternative,
Taco8eMFC-CapitalC*Final
September 29, 2005 1 Piree/JTF 34
within sixty (60) days after the opening of the Other Tenant, Tenant hereunder may elect to terminate this Lease on sixty
(60) days prior written notice to Landlord. Tenant's right to Rent Reduction shall continue until the earlier to occur of (1) the
expiration or earlier termination of the Other Tenant's lease term; (11) Tenant Is in material defect or monetary defy h of
any of its obligations under this Lease. In no event shall the provisions of this paragraph apply to any present or future
Major or Junior major, or to any existing tenant that is permitted under its lease to sell chicken or tars, their respective
successors, replacements and assigns. In addition, the foregoing exclusive shall not be applicable to (I) full service-
restaurant(s), (ii) the incidental sale of chicken or tacos by a tenant, (iii) current tenants, their successor or assigns, with
use clauses permitting the sale of chicken or taros, (iv) any future expansion of the Capital City Mall, or (v) to any
assignment or subletting of the Lease by Tenant. The rights conferred to Tenant by this provision are personal to this
Tenant and will be null, void and of no effect to any assignee, or subtenant whether by voluntary transfer or by operation of
law. Tenant shall agree to waive this provision in the event this provision Is determined to be in violation of any federal,
state or local law, rule or ordinance. In the event that any tenant in the Food Court portion of the Shopping Center sells
chicken or taxis in violation of this clause, Tenant shall have the right to seek to have such tenant discontinue the sale of
chicken or tacos, including pursuing any temporary or permanent injunction.
Section 23.28: LANDLORD'S CONSENT.
Landlord reserves the right arbitrartly to withhold its consent with respect to changes affecting the exterior of the
Premises (including the storefront and signs thereon), changes involving or affecting utilty lines and other mechanical or
electrical facilities running through the Premises, Tenant's right to assign or sublease this Lease except as otherwise
stated herein and Tenant's use of the Premises; as to all other instances where it is herein provided that Tenant must
obtain Landlord's consent, said consent shall not be unreasonably withheld. In the event a dispute should arise between
Landlord and Tenant as to whether Landlord has acted reasonably in failing to give its consent In an instance under this
Lease where Landlord has agreed not to unreasonably withhold the same, Tenant's sole remedy as a result thereof shall
be an action for a declaratory judgment on such Issue and In no event shall Landlord be liable to Tenant for any damages
(direct or consequential) allegedly suffered by Tenant thereby.
Section 23.29: ENTIRE AGREEMENT.
(a) There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes
and cancels any and all previous negotiations, arrangements, letters of intent, lease
proposals, brochures, agreements,
representations, promises, warranties and understandings between the
Parties by
with respect to the subject matter thereof, and none hereto or displayed this Lease. to Tenant
sets forth all of the covenants, is es, shall be used to interpret or construe this The Lease
ces, aand reemthents conditions and understandings between Landlord and Tenant
con forth the Premises, Landlord's i
Buildin??plng No alteration, amendment chan or add
this Lease shelf be binding upon Landlord or Tenant unless reducedrto writing signed by them aa?nd muuttu ly delivered
between them.
(b) The submission by Landlord to Tenant of this Lease shall have no binding force or effect, shall
not constitute an option for leasing of the Premises nor confer any rights or Impose any obligations upon either
party until the execution thereof by Landlord and the delivery of an executed original copy thereof to Tenant.
(c) Deleted.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first hereinabove written.
PREIT SERVICES, LLC,
Agent for P CAPITAL CITY LI PARTNERSHIP
BY:
C INO
PR IDENT
TENANT
SEVE HILLS, INC.
Title:__ P R 51 O E ry
Attest:
Title:
TacoBei-KFC-CapitalCity-Final
September 29, 2005 1 Piree/JTF 35
fill
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Ip
Exhibit "A"
Page 2 of 2
3
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CA%7AL , qTY MALL DIDVL
Exhibit "A"
Page 1 of 2
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EXHIBIT "B" 19
DELETED,
September 27, 005 1 Plree/JTF 3e
EXHIBIT "C"
i COMPLETION CERTIFICATE
DATED AS OF
I PARTI
SHOPPING C?NTER LEASE (the "Lease") dated as of
Parties: I
i
PR APITAL ?ITY I ITED PART {?eu?c
I - -- ("Landlord")
SEVEN w r al r ? ("Tenant")
Premises:
i
Tenant Stor?o???
GLA of Premises:_ 920 se ?s._ ?__.
Actual Openlni Date:
Rent Commencement Date:
Expiration DatA:
PART II
Tenant. Intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and
Landlord as follows:
agrees with
A. the dates and other Information set forth In this Completion Certificate are true and correct;
i
and,
B• the Rent Term commences on the Rent Commencement Date set forth In PART I hereof and, ends
absolutely andi without notice at 11:59 P.M. (local time) on the Expiration Date, unless sooner terminated as provided In
this Lease or 9. tended by written agreement of the parties; and,
C. the Lease has not been assigned, supplemented, amended or otherwise modified thease sts
the entire agreement between the parties as to the Premises and Its leasing; ; eL repre on
them are no breaches or other defaults by
Landlord and the Lease; all conditions of the Lease to be performed by Landlord and necessary to the enforceability of
the Lease have been satisfied; the Lease Is In all other regards In full force and effect; and,
D_ Tenant has accepted possession of and has entered Into occupancy of the Premises; the Premises has
been accepted by Tenant as being In accordance with the terms and conditions of the Lease; no Rent has been nor will be
paid or prepai other than as provided In the Lease and there are no defenses, offsets, deductions or counterclaims
against the an rcement of the Lease by Landlord or the payment of Rent by Tenant; and,
E. the Lease Is subordinate to the REA and to any and all mortgages on or deeds of trust as to the Shopping
Center sub)eo to the non-disturbance provision of Section 18,02 of the Lease,
PART III
In add?lon to the foregoing certifications, Tenant has delivered to Landlord all of the following documents relating
to work that ha¢ been performed by, through or under Tenant in or about the Premises:
i
A. properly executed and acknowledged affidavits (satisfactory to Landlord) from contractors engaged by
Tenant that all work in or about the Premises has been fully completed In accordance with the Final Plans approved by
Landlord and tat each of Tenant's contractors, as well as all subcontractors, laborers and materi
full; and almen, has been paid in executed
and
acknowledg (satisfac ory to! Land oI rd) with respect to the Pr misesiromreleases
e each of Tenants contractors and from laborers, liens
and materialm#n; and sand from every subcontractor
ctor
C. a set of approved "as-built" drawings and specifications for the work done by Tenant In and about the
Premises, prepared, signed and sealed by Tenant's architect, together with a complete set of Tenant's "as-built" sprinkler
and other fire protection drawings and specifications prepared, signed and sealed by Tenant's architect or engineer; and
D. true and complete copies of certificates of occupancy and licenses from governmental bodies having
jurisdiction over Tenant's use or occupancy of any part of the Premises; and
E. a detailed cost break-down sheet satisfactory to Landlord specifying the line items and cost of each line
item of the work done by, through or under Tenant in and about the Premises; and,
i
F. i electrical underwriters certificate from an organization satisfactory to Landlord.
TacoBeil-KFC-4pitalCity-Final
September 27, 2. 05 1 Plree/JTF
37
I
II ?
All terrhs defined in any other part of Lease are used herein as defined therein,
This COMPLETION CERTIFICATE has been executed as of the date first above written.
TENANTm
SEVEN HILLS, INC.
By:
Title:
(Corporate S4al)
Attest:
Title:
ITF
38
Amk
EXHIBIT "DM
CAPITAL CITY
DESCRIPTION OF LANDLORD'S WORK AND TENANT's WORK
THE FOOD COURT
PREFACE
This Iixhlblt V describes the obligation of the Landlord and the Tenant for the design and construction of the
Premises. Ealch term used In this Exhibit which is defined in the main body of the Lease shall have the same meaning
when used hertein.
i
The pprtlon of Landlord's Work described In Sections A will be performed by Landlord at Landlord's expense.
Notwithstanding anything to the contrary in the Lease, the Portion of Landlord's Work described in Section C will
performed by Landlord at Tenant's expense. be
The work accordance wfh Tenant's Final Plans as approved by Landlord, y Tenant Tenantt hallaIncludethis Exhibit "D shall nathe complete ansa In
specifications delivered to Tenant's contractor and subcontractors and incorporated in their respective construction
Landl rd and Tenant have a common Interest In opening the Premises on the date finally fixed by Landlord for the
opening of th? portion of the Shopping Center containing the Premises (hereinafter called the "Grand this Lease is made prior to such date. To this and, Landlord and Tenant will coordinate their work sc edules to achieve
such result Insofar as the schedule and prudent construction practice will allow.
In ord r to Insure an orderly and aesthetically coordinated storefront and sign design and to insure that storefront
and signing r uirements are understood by tenants, their respective contractors and fabricators, reference should be
made to the D sign and Construction Criterla,(see Section 2.03 of the Lease).
«I
Section A: WORK BY LANDLORD
(1) FLlctrtcal Cond ?H.
i
Landlord will provide electrical conduit stub-in sized for 277/480v from nearby electrical room. Any
Increase/upgrade shall be performed by Tenant at Tenant's sole cost and expense.
I
(2) I Prooane tine stub-in.
Landlord will provide 2" propane stub-in propane supply line from Landlord's point of distribution. Any
increase/upgr#e to existing service, if available, shall be performed by Tenant at Tenant's sole cost and expense.
(3) SoN,
Landlord will provide a fire sprinkler flange, stub and heads (up) to the Premises based upon one (1)
sprinkler head Per one hundred twenty (120) square feet of GLA In the Premises,
i
(3a) Sortnklera (for kloskl.
Landlord will provide common area sprinkler system.
Section B: . WORK BY TENANT IN PREMISES
All work by Tenant In the Premises will be performed by contractors selected by Tenant and approved In advance
by Landlord. M one of the conditions for approval, Landlord may require the contractor to procure a payment and
performance b?nd satisfactory to Landlord for the benefit of the Tenant.
A storo Including signage will be designed and installed In accordance with the Design and Construction Criteria,
the lease outII0a drawing, the Final Plans as approved in writing by Landlord, and the requirements of the Jurisdictional
authorities. Allgraphics, signage, countertops and all partitions facing on the Enclosed Mall will be considered as Tenant's
storefront or ust conform to Landlord's Design and Construction Criteria. For a description of that portion of work to be
performs byte Landlord, at Tenant's expense, see Section C herein.
Tenant must directly arrange for and procure at Tenant's expense all state and local building, plumbing, electricalother , and constructioonnb?Tenant pmust be In accordan eitwith requllired plicablenlawsioord niter es, rulesta diregulattion of government
authorities andhe following:
t
I
Lowerl Allen Township Building ?f< Zoning (contact: Dave Atland; 717.975.7575) Pennsylvania Health
Department ( ntact: Stanley Shlvell: 717.348.3223)
Penn9lvanla Department of LSU Bureau of safety (717.787.3808)
On or before the Construction Commencement Date, Tenant shall commence Tenant's Work and thereafter
TacoSell-KFC-CpitalCky-Final
September 27, 05 \ Pirse/JTF 39
diligently and ?ontlnuousl
y proceed to comb ie the Premises In accordance with the oved Final flans and permit
Landlord to commence the work specified in Section C,
(1) it Utll M by Tenant,
Tenan? shall directly arrange for and procure at Tenant's expense:
telephone con!uit) betwee
(a) Telephone se (including n the corresponding alcove(s) and/or lectriclal panels InuLangdl telephone wi through
() ord's Building and d the the Premises.
(b) Connection to Landlord Installed 2" propane stub-in,
(c) Connection to the Landlord-installed utilities.
i
(d) An individual grease Interceptor, as required by code, shall be Installed within the
Premises. Te?ant shall be responsible for meeting all state and local odes.
(2) I ?entbina.Partitlons,
Tenant will furnish and install 5/8" Fireode "X" d
floor to the un erside of the deck and provide fire safing In Ithe deck flutes ovier thetto 1 trackratf the Premises from the
drywall cross the deck plates, or more as required by the jurisdictional authorities, pon the Tenant side of partition
between the emlaes. Demising partitions shall have 5'-0' We return per tenant criteria drawings SK-3.
(3) ' Ceincs,
A susiended ceiling will be installed throughout the Premises; to be not more than eleven feet (1 f ft.), nor less
than ton above
shed
, without
prior Tenant where(?andlo d deems fininec ssary, All cell ngs must conformlto of the the® quLandlord. irements of the panels will be provided by
jurisdictional authorities.
(4)
All fre standing structural steel columns must be enclosed with 5/8 Inch Firecode "X" drywall taped and speckled
from finish floar to underside of deck. All voids at deck shall be sealed with fire saflng.
(s) ? ?14n?ombuatible onstru Iron,
All Tenant construction must be of non-combustible material. Treated, fire resistant wood will be permitted where
approved by a jurisdictional authorities. Combustible trim and finish, where permitted, must conform to the requirements
of the jurisdictone[ authorties. No wood (or combustible material) shall be Incorporated In any construction work above
the ceNing inst tied In the Premises.
I
(8) EhIlUIe 8_WNW.
All Te?lant Improvements, other than callings and lighting fixtures, must be floor mounted unless written approval
Is obtained fro the Landlord to support Improvements otherwise.
I
(T)
No msjmanine will be constructed unless Landlord approves such construction in writing.
(8) Floor Penetration.,
Tena4 shall be liable for any damage to Tenant facilities below and/or adjacent to It during and after construction
due to floor penetratlons made by Tenant. Any penetrations made by Tenant through the floor shall be made with a
watertight flasliing collar.
(g) Tenant Mechanical 8vstem,
Toilet bxhaust systems, plumbing vents and tenant-installed mechanical and ventilation systems must conform to
the following:
(a) Tenant will design, furnish, and Install in the Premises a low velocity air distribution
system based upon Landlord's system.
i
(b) All exhaust, air Intake and roof top unit locations must meet all clearances indicated in
current state ai hd local codes. Locations must be approved by Landlord shell engineer prior to Tenant's plan preparation,
(c) No openings, fans, vents, louvers, grilles or other devices will be installed in any demising
partition or extbrior wall without Landlord's written approval.
(d) Roof penetrations will be performed solely by Landlord's roofer in accordance with
Section C her of, at Tenant's expense,
make-up system to exhau
(a) Tenants r and st air at the minimums rate,twithsmake up air a 90air will esin, furnish % ofd the exhaust quanti y to preven t exhaust migrgr Install an
and
ty P
ation
of odors and/ r heat and cooling to other occupied premises or the public area. Make-up air systems are required for all
Tenant-furnillll?d exhaust systems, exclusive of tollet exhaust systems. Any tenant exhaust hood shall be regenerative,
rpakeup air We with heated tempered makeup air. Tenant shall, in addition to the hood makeup air, provide any
TecoBell-KFC-CiapitalCity-Final
September 27, 1005 1 Plree/JTF 40
Adh
additional me up air to bring the total to, 90. .;f the exhaust air,
(0 Any balance of any exhaust and make-up system not provided by Landlord Is the
responsibility of Tenant and Tenant will furnish Landlord with two (2) copies of a certified sit balance report. Landlord's
specification o HVAC conditions within the Mall is predicated on the correct balance, to Landlord's satisfaction, of Tenant.
Installed mechi nicalsystems.
throughout To ant's facility. Tenant shallhprovide shop drawings of alllwork optheelandlo d for review prriior o doing any
work.
(h) Tenant's ceiling area shall be used as a return air plenum for the Landlord's HVAC
system only. 11 material passing through this area shall be rated accordingly. All equipment, wiring, piping, ducting etc.
Installed in ten nt'a ceiling shall be plenum rated.
(1) Tenant is responsible for removing all abandoned roof top equipment.
I
U) Hoods and exhaust systems for food processing will Include C02 fire extinguishing
systems Instal d in the hood, an automatic grease extracting exhaust system and an automatic shut down of the hood
exhaust fan a of which will be Installed in accordance with the requirements of the jurisdictional authorities and the
Landlord's In4rance carrier. Tenant shall conform to all NFPA requirements for hoods Including, but not limited to
Automatic Ans I Systems with automatic gas emergency shutoff valves,
II (k) Product-of-combustion vents for gas fired equipment will be discharged through the roof
directly to the gxterlor of Landlord's Building.
i
(1) Condensate lines for refrigeration will terminate within the Premises In accordance with
the requirements of the jurisdictional authorities.
I
(m) All HVAC equipment should be electric cooling & electric heating with the heating su
connected tot a tenant's meter, supply
(10) gorier,
The L ndlod will provide a fire sprinkler flange and stub, with butterfly valve, to the Premises based upon one (1)
sprinkler head er one hundred twenty (120) square feet of GLA In the Premises, as set for In the Section C below. The
Tenant will Ins II a fire sprinkler system within the Premises based upon a design criterion of a maximum of 0.18 gallons
per minute square foot of GLA In the Premises and In accordance with drawings approved by Landlord, Landlord's
Insurance co and jurisdictional authorities. If the Premises exceeds 3,000 square feet, then Tenant shall design Its
system for a aximum of 0.18 gallons per minute per square foot of GLA for the most remote 3,000 square feet. All
designs and culatlons shall be performed by a licensed Professional Engineer and be signed and sealed as such.
(11) i HyAC.
Tenon will provide and Install self-contained rooftop heating and cooling equipment on the roof of the Premises.
Tenant shall ubmk all equipment information to Landlord prior to order or purchase for Landlord's approval of
manufacturer, IM, weight, locatlon and design parameters. The maximum height of such roof mounted equipment
including, wit ut Iknitation, curbs and base will not exceed 5'0" and will be mounted on manufactured metal curbs.
Further, the to Don of such equipment will be limited to structural bay areas designed on the lease outline drawing. No
wood sleeper ounted equipment over the roof membrane will be permitted. Tenant shall be responsible for the provision
and installation of additional structural bracing for rooftop equipment, If required,
Landlo d shall have the right to install controls to limit the demand ceiling of the Shopping Center's kW usage. In
the event the ndlod installs such controls, Tenant will make the unit accessible at construction and subsequent to
construction fo Installaton and repair.
(12) i Tenarit Electrical Systems,
All electrical work Including, without limitation. Tenant's main disconnect switch, transformers, circuit panels,
branch circuit ring, wiring to Tenant's HVAC equipment, wiring devices, cooking equipment, Ilghting fixtures, lamps,
emergency lig ting, communication systems, burglar alarms, sign and logo lighting, and TV and radio systems must
conform to the following criteria:
I
utility, (a) The requirements of the jurisdictional authorities, the National Electric Code and the local
(b) The requirement for roof openings described in Section C hereof
(c) All fluorescent lighting must have electronic ballasts.
(d) The main disconnect at the Landlord's electrical room shall be either a fused switch or
circuit breaker.) If a fused switch is provided, tenant shall Install fuses therein that are compatible with Tenant's load
requirements, 1 If Landlord equipment is designed for circuit breaker installation, Tenant shall Install breaker that Is
compatible witIl landlord's equipment.
(e) Service conductors must be copper from Landlord's utility room to and throughout the
Premises.
(f) No appurtenances will be affixed to the exterior wall or interior or exterior of the roof of
Landlord's Bull ing, without Landlord's prior written approval.
TacoBell-KFC-C ItsIClty-FlnaI
September 27, 405 1 Plree/JTF 41
(g) Any sign, logo or show window Illumination must be controlled by a time clock, ) Tenant will
furn board schedul , electricalhequipment schedule aind then reated reports on copies forms furnished by Landlord electrical panel
Tenant facilities. (1) Tenant shall provide the temporary electrical distribution systems for construction of
(}) Tenant shall provide power and lighting plans to address all criteria under Section B.
(k) Tenant shall provide electrical riser diagram(s) to show Tenant's power distribution,
including Tena is connection to Landlord/Tenant distribution location,
(1) All fire alarm connections to Landlord's fire alarm system must be shown. Tenant is
responsible foI all costs to connect to existing fire alarm system, Including testing.
(m) Tenant's smoke detectors, and duct smoke detectors in Tenant's air handling unit, must
be compatible with Landlord's fire alarm system.
(n) Tenant shall
transformer, If Necessary, provide and install additional, structural engineer-verified bracing for
I
(o) Tenant shall provide and Install kiosk lighting, as specified in drawing details.
(13) I, Dish.
Tenant will enforce strict discipline and good order among the employees of Tenant's contractor and
subcontractors[ Tenant shall require Its general contractor to keep a qualified superintendent on the Premises at all times
when Tenant'slwork Is being performed by Tenant's contractor or subcontractors.
(14) 1 Character of Hmodeveo:,
Tenanj will not employ any unfit person or anyone not skilled in the work he is performing, or any workman that is
Incompatible 4th the balance of the work force or who will cause, or whose presence will cause, labor disputes or work
stoppages. Inj the event any employee(s) of Tenant or Tenant's Contractor causes a labor dispute or work stop
Tenant expres ly agrees to have such employee(s) Immediately removed from the Shopping Center upon Landlord s
request, and t t Tenant's failure to do so shall constitute an Event of Default under this Lease.
(15) TC11in Up.
renan will maintain the Premises in a clean and orderly condition during construction, merchandising and
occupation. nant will promptly remove at least once a day all unused construction materials, equipment, shipping
containers, pa kaging, debris and flammable waste from the Premises, Tenant will contain all construction materials,
equipment, fi res, merchandise, shipping containers and debris within the Premises. Malls, courts, arcades, public
corridors, servi corridors and the exterior of the Landlord's Building must be clear of Tenant's equipment, merchandise,
fixtures, refusal and debris at all times. Trash storage within the Premises must be confined to covered metal containers.
During constru tion, a ten (10) pound dry chemical fire extinguisher must be kept within Tenant's construction site.
I
(18) i Tenant Contractor Work Area.
Tenan's Contractor is required to confine his construction procedures to the Premises, except as required to
encroach on th maN public space for work related to the Tenant's storefront.
(17) Flro hHM $y.?•...
Tenan) shall be responsible for providing and installing fire alarm system that ties In to Mall Central Alarm System.
(18) Store Closure- (Deleted)
(19) Dsliverles.
All TeTnt deliveries shall occur at the service court and no later than 10am.
(10) 1 Name. (criteria forthcoming)
Tenantl shall design,. fabricate and install signage in accordance with Design Criteria at Tenant's expense. All
work shall be purchased through Mall/ Owner's selected sign company. NO EXCLUSIONS.
(21) II! Menu Boards (criteria forthcoming)
Food enants shall provide menu board signage that conforms with the Design Criteria for Menu Board Signs.
(22) Flooring d Walls
All flo Ing In kitchens and behind the Tenant's customer service counter shall be of an Impervious material (I.e.,
ceramic or qua tile) with an appropriate waterproofing membrane applied below floor finish material.
Walls rom the lease line back approximately V-0" Into Tenant's space shall conform to Tenant Criteria drawing
TemBell-KFC-C ItalCity-Final
September 27, 05 1 Plree/JTF 42
SK-J with the f?lsh as selected by Landlor Nner. NO EXCLUSIONS.
(23) General Rea Wrementa
describing in tail all equipment oabebplacegd ondtheofrontservice counter nd adjacent counters. customer Landlord rese counter
right to review and approve the placement of all equipment, display units and food/beverage dispensing units wither the
view of custo rs.
I
(b) All cash registers and food/beverage dispensing equipment located at the front service counter
shall be reces ad Into the countertop. Equipment at the front service counter may be permitted to be installed on the
countertop sur ace If in Landlord's sole opinion such equipment can be appropriately screened from view.
(c) Tenant is encouraged to Incorporate at least one (1) food display case within its counter front.
Display cases hall be internally illuminated and shall be used solely for the merchandising display of food and/or related
items. Food erchandlse on display must maintain a fresh attractive appearance. Retail operations
of accessory pods in support of food being sold (hard or soft g are palso en that Include the sale
merchandise ccessorles in a separate case. Landlord reserves thed right toltreview and approve the designs and
construction d tells for all such display cases.
(d) All Tenant's Interior partitions shall be finished with an impermeable, hard, durable surface such
as tile, plastic ?aminate (or other finish as reviewed and approved by Landlord). Wall surfaces visible from the customer
service area must be finished with ceramic the or higher quality materials.
(e) Rear areas of Tenant stores for storage and/or food preparation shall be screened from view by a
partition or oth?r appropriate means from patrons standing at the store's counter,
I
Tenon shall Incorporate
top surface of he recessed containers for the following Items (as required for store operations) within the
customer service counter: condiments, napkins, straws, utensils, food service trays and small paper
waste produ In the event that Tenant fixture and
accommodate containers for these Items, Tenant shall proviidee mote condi entcounters containing cannot t within the
customer servarea. Such condiment counters shall be appropriately screened from view from the Shopping Center
Common Area An Integral trash receptacle shall be Incorporated into the design of the customer service and condiment
counters.
Section C: WORK BY LANDLORD IN PREMISES AT TENANT'S EXPENSE (K Applicable)
Landl d will perform the following required work In the Premises at Tenant's expense. The cost of such work
(and the at any other work herein provided as to be done by Landlord at Tenant's expense) will be invoiced to Tenant of the
work
and upon ccoo required heretu der shall be deemed willabe olf Defaulttunder3he Leasehereafter as additional rent. Any failure to pay as
(a) IMe CoMdor Door ? ? If fo installing said door and door frame in accordance withaLandlord'sDesgn and ConstrutiointCriteria.t iIf
Landlord has nstailed a service corridor door, Tenant shall reimburse Landlord a unit cost of One Thousand Three
Hundred Fifty nd 00/100 ($1350.00) Dollars for this work. Landlord shall supply and Install Tenant's service corridor door
sign for all se ce doors. Tenant shall reimburse Landlord a unit cost of Fifty and 001100 ($50.00) Dollars per sign.
b
() I jgl. Furnish and Install a base building standard finished floor tile between the storefront lease line and
the Tenant's s orefront closure. The unit cost Installed for this work will be Twenty-five and 00/100 ($25.00) Dollars per
square foot of orizontal application and Fifteen and 00/100 ($15.00) Dollars per lineal foot of base application. This unit
price will be ve only if Landlord's paving contractor Is required to perform such work out of normal sequence, Tenant
will reimburse Land)ord for the actual cost on Installing the finished floor
administration. In the alternative, Landlord may elect to furnish the finished floor material tto Tenant t the unit cost of Teon
and 00/100 ($10.00) Dollars per square foot and Tenant shall complete the Installation.
Landlord has Floor 81ab_. The floor slab in previously occupied spaces shall remain as Is. In the renovated area, If slab
and This unit price]wtll beheffective only if Lthe
per square toot.
cost for oncrete i flo ringhcolntra tore is ble0to perform Dollars
sequence. If and lord's concrete flooring contractor Is required to perform such work out of norsuch work In the mal sequence, Te ant
shall relmburs Landlord for the actual cost of the work plus fifteen percent (15%) thereof for administration. In the
alternative, La dlord may direct Tenant to pour the floor at Tenant's expense,
(d) ' 1?lmisi0a Studs. Furnish and Install W metal studs 16" on center from floor to the underside of the
structure of the roof deck and/or structural members. The Installed unit cost to be paid by Tenant Is Sixty and 00/100
($00.00) Dollarls per lineal foot.
(e) Roof Penstratlen, All roof penetrations and flashing will be performed solely by the Landlord's
designated ro ng contractor. Tenant shall contract directly with Landlord's roofer for this work. This scope of work shall
be at tenant's ole cost.
(0 Tenant Et?tricsl Sy?tam C-- l9lLw. Connect Tenant's electrical system to Landlord's electrical
system. Tana tlt shall relmburse Landlord for the actual cost of the work plus fifteen percent (15%) thereof for
administration.
(g) Temoorarv lactrl --? c..?? During construction, fixturing and merchandising of the Premises,
temporary ele ric power will be secured by Tenant's contractor, as approved by the local electrical Inspector. The
consumption temporary power obtained shall be coordinated, directly, with PREIT (as utility company). Tenant shall
switch to use tf its permanent electrical system as soon as possible and shall thereupon cease to use the temporary
Taco8elI-KFC-4pitalCity-Final
September 27, 005 1 Piree/JTF 43
, Aft
electric power Lpply.
1 1-01
(h) ' Temborarv Stor font. If the Landlord has installed the temporary barricade, Tenant shall reimburse
Landlord Forty Ight and 00/100 ($48,00) Dollars per lineal foot. for the cost of this work plus required barricade graphl".
In the event a emporary barricade does not exist, Tenant shall install this In accordance with the Design and Construction
Criteria.
i
(1) Telephone Conduit. If Landlord has Installed conduit to Tenant's premises, Tenant shall reimburse
Landlord Six aid 00h00 ($8.00) Dollars per lineal foot for the cost of this work.
0) Sprinklers. If the Landlord has installed a sprinkler system providing one sprinkler plug for each one
hundred twen (120) square feet of GLA in the Premises, Tenant shall reimburse Landlord One and 00/100 ($1.00) Dollar
per square foct for the cost of this work, In all other areas of the mall, the sprinkler system is existing and shall remain as
Is. Any modifl tion to this system shall be performed by Tenant at Tenant's sole cost and expense.
(k) Water Service/Sanitary Line. At a cost to Tenant of Seven Hundred Fifty and 00/100 ($750.00) Dollars:
a % (three qua er) inch domestic cold water service line, valved and capped, will be brought from the corresponding water
meter to one olnt within the Premises. A 4 (four) Inch roughed sanitary line will be installed at one point within the
Premises. T nant will be responsible for connections thereto. If required, Landlord shall install a clean-out In the
Premises at nant's expense. The locations of such service line and grease line connection will be Indicated on the
lease outlined wing.
(1) Storefront. Landlord will provide, at Tenant's expense, a storefront complete with portion of knee-wail
and soffit to ich Tenant shall Install Mall standard signage and blade sign and countertops in accordance with the
Landlord's Design and Construction Criteria (criteria guidelines forthcoming). Tenant shall reimburse Landlord Twenty-
five Thousand and 00/100 ($25,000) Dollars for the cost of this work.
(1) Food Court Kiosk (no provisions for food/water use for new food court kiosks retail-only)
(2) Additional Work.
If the ssign of the Premises necessitates any of the following, Landlord will perform the following additional work
in the Premix at Tenant's expense upon receipt of an approved work order from Tenant. The cost to Tenant of such
work will be L ndlord's actual cost of the work plus fifteen percent (15%) thereof for administration and will be Invoiced to
Tenant upon c mplstlon of the work, and will be payable in accordance with Subsection C (1) above.
(a) Electrical Service. Electrical conduit larger than installed size; relocation of conduit; furnishing of
electric service In excess of 100 amps.
(b) Water Service. Additional water service; relocation of water service.
(c) Sewe._r Service. Additional sewer service connect; relocation of roughed sanitary.
(d) Sanitary Vent. Sanitary vent connect; relocation of sanitary sewer Inverts.
I
(e) Sprinkle r. Increase in permitted number of sprinkler heads. Landlord may refuse to allow
additional spri kler heads In the event such additional heads may contribute to exceeding the capacity of the sprinkler
system.
i
(f) Opening. Openings In demising partitions provided such openings have been approved by the
Landlord In writing.
(g) T_V, Se_rvica. Install TV antennas; extend conduits and/or wires to the Premises.
(h) Structural Changes. Any revisions and/or additions to Landlord's structural system. Landlord
may refuse to Opprove or to perform any changes.
(1) Propane. Any additional modifications to Landlord provided 2" propane supply stub4n will be the
sole responsibility of the Tenant.
(3)' Jurisdictional Code Reaulromen .
i
In the vent the Tenant is notified of any violations of codes, ordinances, regulations, requirements or guidelines,
either by the) risdWonal authorities or by the Landlord, Tenant will, at its expense, correct such violations within ten (10)
calendar days after such notification. Should Tenant fall to correct such violations within ten (10) calendar days, Landlord
may correct such violations at Landlord's actual costs plus fifteen percent (15%) thereof for administration. Such
corrections will be at Tenant's expense, which shall be invoiced, and is payable as set forth in Subsection C (1).
Section D: I PROCEDURE
(1) I Tenant Coordinator.
Landl rd's Tenant Coordinator will be responsible for coordination and review of each Tenant's Design Drawings
and Final Plan . All questions pertaining to the design and construction of Tenant's Premises and all plan submittals shall
be directed to he Tenant Coordinator at the Landlord's corporate office.
(2) I Lease Outline Drawing.
shall furnish to Tenant a drawing of the Premises of the type commonly known as a lease outline drawing
September 27, X005 1 Piree/JTF 44
(herein sometl as referred to as the "L.O.D,f . 1'he L.O.D. will be prepared by Landlord' hitect at a scale of 1/4 Inch
equals 1 foot nd will show the dimensions and square footage of the Premises. In addition, the L.O.D. may show the
location of th sprlnkler connection, electrical conduit, sanitary sewer, water line, and points of entry of othr Landlord
supplied servi ea, and may include an elevation and section of storefront and the plan of the structural system, R 13
Tenant's res nsibility to verify all existing conditions and dimensions.
I
(3) Design Drawings and Final Plans.
On or before the Design Drawings Submission Date, Tenant shall submit to the Tenant Coordinator the Design
Drawings and Inal Plans In accordance with Section 2.03 of the Lease.
(4) Qsliyery of Premises: Commencement of Tenant's Work.
Not Is a than ten (10) days prior to the Construction Commencement Date, Landlord shall give Tenant notice that
the Premises ave been sufficiently completed to permit Tenant's Work to begin as of the Construction Commencement
Date. Tenant hall thereupon notify the Tenant Coordinator of the date of which Tenant's contractor intends to commence
construction a d the date on which Tenant's Building Permit was Issued. At such time as Tenant's contractor is prepared
to commence rk, the Tenant Coordinator shall deliver possession of the Premises.
Fore h day that Landlord fails to properly give Tenant notice that the Premises have been sufficiently completed
to permit Ten nt's Work to begin (and In Ileu of any other remedy for failure to give notice), Tenant's Construction
Commencem t Date shall be extended for one day, but shall In no event extend beyond the date on which Tenant
actually comm nces construction.
On or efore the Construction Commencement Date, Tenant shall deposit with Landlord a certificate of Insurance
as required i Article 11, Tenant's building permit and shall commence Tenant's Work and proceed diligently and
continuously t completion including Installation of fixtures and equipment in the Premises, Further, Tenant shall permit
Landlord to commence or continue (If Landlord has already commenced) the work specified in Exhibit "D", Section C (1)
and any and all work necessary pursuant to Exhibit "D" Section C (2). Tenant shall not unreasonably Interfere with
Landlord's con tructlon work nor permit Its contractors or subcontractors to so Interfere.
(5) Certificate of Occupancy.
Tenant must secure all required Certificates of Occupancy from all government authorities having jurisdiction in
sufficient time Ito allow Tenant to open the Premises in accordance with the opening requirements of this Lease and will
deliver copies P f the certificates to the Tenant Coordinator.
(6) ! Tenant's Obllaatlon.
i
Landl*,s Work Is limited to that required of Landlord by this Exhibit "D" and Tenant shall be required to make all
improvements !to the Premises In accordance with Tenant's Final Plans (as approved by Landlord) except those which
Landlord Is sp$ciflcally required to make hereunder.
Withinlthlrty (30) days after Tenant is open for business In the Premises, Tenant will submit to Landlord all of the
following documents relating to work that has been performed by Tenant or Tenant's contractors in the Premises.
(a) An affidavit of Tenant's general contractor that all work In the Premises has been fully completed in
accordance wl the Final Plans approved by Landlord and that all subcontractors, laborers and materialmen engaged In
supplying mat vials for the work have been paid In full.
(b) I Properly executed and acknowledged Releases of mechanic's liens with respect to the Premises executed
by Tenant's general contractor and by every subcontractor and supplier of labor and materials engaged in the work.
I
(c) A set of approved hard copy "as-built" plans and specifications for the work done by Tenant, prepared and
sealed by Ten nt's architect, together with a complete set of Tenant's "as-built" sprinkler plans, as well as ACAD 2006
format dwg fll?ls on cd-rom; submitted to Owner's architect In addition to Owner.
(d) I Copies of all required Certificates of Occupancy.
(e) i A fully executed copy of the Completion Certificate In the form attached to the lease.
(f) ; Original certificates of insurance per lease standards.
I
Tacosell-KFC-C pkalCity-Final
September 27, 005 \ Piree/JTF 45
EXHIBIT "E"
FAST FOOD CLUSTER TENANT EXHIBIT
This AST FOOD CLUSTER TENANT EXHIBIT (the "FFC Exhibit") is annexed to and made a part of the
Shopping Ce er Lease (the "Lease") by and between PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord, and
SEVEN HILL ,INC., as Tenant for those Premises designated currently by Landlord as Tenant Store Number FC-4 (the
"Premises") i Capital City Mali and is executed of even date with the said Lease.
In the e
e vent a conflict arises between the provisions of this FFC Exhibit and any other part of the Lease, the shall
confl xtentinnece a ry oFellminate such onfll butnotturthee Athe ll termsictin which are defined I
9 provisions of such other part of the Lease o the
have the sam meaning when used herein,
In any other part of the Lease shall
i
ARTICLE 1: THE FOOD COURT AREA
Section 1.01: THE FOOD COURT AREA.
The " ood Court Area" (sometimes referred to in this Lease as the "Fast Food Cluster") means and shall be the
area aPecMlca y designed for small restaurant operations situated In the Landlord's Building, including, without 11mitaton
the Individual remises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area.
Section 1.02: FOOD COURT SEATING AREA,
The "food Court Seating Area" means and shall be the ortion of the Common Areas which Is made available by
Landlord for s sting purposes and shall be for the non-excl alve use by customers and patrons of the Food Court Area.
Landlord shall furnish and install equipment, floor covering, lighting fixtures, decorative and permanent fixtures, ceiling,
tables, chairs, acceaaories and other roe
tables, equip ant and p P rty In the Food Court Seating Area. Landlord shall be the sole owner of said
fixtures, or both, of the property, and shall have the right to make changes from time to time in the size, shape or location
oo Court Seating Area and In the number, type and style of any or all aspects of the facilities,
and other prop rt therein, ' equipment
Section 1.03: CHANGES BY LANDLORD.
As bet6en Landlord and Tenant, Landlord shall at all times have the right and privilege of determine the
and extent of a Food Court Area and of making such changes, rearrangements, additions, or reductions therein and
thereto from tirhe to time which in Its opinion are deemed to be desirable and for the best Interest nature
of the personal using the Food Court Area or which are made, pursuant to
federal, state local, environmental or other law, rule, regulation, guideline, judgment or order Landlord shall not,
however, Chan a materially the dimensions of the Premises, of this Lease, as a result of any
' ARTICLE 2: USE
Section 2.01: USE.
renan shall use the Premises solely for the preparation, sale and delivery of food to to public for "carry--out" or
Court Seating Area. Tenant agrees to sell only those food items sPaMically enumerated In
for consumptl in th e Food sions (those food items hereinafter sometimes
p) of s Fundamental lease ProW referred to as the "Menu") and
to maintain st standards In
$34SLQp.1 ms. Tenant agrees to
offer for sale e highe quality, Portions of servings, and preparation of such food ite
ch the enumerated food Items on the Menu and any failure to sell any of the Items on the Menu or any
substitution for or adofdition to such Menu without Landlord's specific pursuant to of this Lease; and, in addition to any other rights oprPremedies pursuant todthig Lease, Event Landlord
shall speciflcal have the right to terminate this Lease If Tenant violates this provision.
Section 2.02: ISPOSABLE PRODUCTS.
For th purpose of serving food and beverages to the public, Tenant agrees to use only disposable paper or other
equally degracf ble goods and utensils, Including, but not limited to, cups, wrap materials, plates, trays.
bags, napkins, spoons, forks, knives, stir sticks and the like (collectively the Disposables"). Landlord shall have the right
to develop a u Morin design for all such Disposables as ma be required in the operation of the Food Court Area, Ail Tenant
agrees, in any vent, toles only Disposables of f(Tenant, or the uniform design develo
type, size, material and color approved by Lb Landlord, If and Landlord. Tenant shall not
be required to urchase such Disposables from Landlord, but Landlord may, for the convenience of both parties, develop a
local source of supply. Tenant shall at all times have the right to develop Its own source of supply for such Disposables,
provided only t at the Disposables meet the requirements stated herein.
Section 2.03: MPLOYEE DRESS AND CONDUCT.
Emplo as shall at all times be required to present a clean and well-groomed appearance and shall wear
uniforms, the c for and style of which are to be subject to Landlord's approval. Tenant may make such arrangement with
Employees as It deems appropriate regarding the purchase and maintenance of standard uniforms, However, Tenant
shall require ltsl standard uniform to be worn by all Employees at all times while on duty in the Premises. Landlord may, at
Premises.
any time, direct Tenant to require any Employees not so attired to Immediately conform to the requirements or leave the
September 27, 2 8 1 PlreeNTF
46
ARTICLE 3: FOOD RT CAM SUM & FOOD COURT CAM GE
Section 3.01: FOOD COURT CAM SUM.
As a t pant of the Food Court Area, Tenant agrees to pay and shall pay to Landlord, commencing on the Rent
Commencement Date and each and every month and as Additional Rent thereafter throughout the Term, Tenant's share,
as hereinafter et forth, of the "Food Court CAM Sum". The term "Food Court CAM Sum" means and shall be all sums
incurred Ina manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping
Center In connection with the operation and maintenance of the Food Court Seating Area (as the same Is reduced,
expanded or otherwise altered from time to time) Including, without limitation, the following: (a) the cost of operating,
maintaining or repairing any HVAC equipment specifically installed to serve the Fast Food Seating Area; (b) the cost of all
Insurance ape Ifically required for the operation of the Fast Food Seating Area (including, without limitation, Insurance
against fire an other casualties, bodily Injury, personal Injury, property damage, product liability, sign insurance and any
other insuran required to be carried by Landlord for the Fast Food Seating Area; (c) the cost of maintenance, repair
and/or replacement of Interior. landscaping, decorating, lighting, lighting systems, electrical systems, plumbing systems,
HVAC System and any other systems serving the Fast Food Seating Area: (d) the cost of trash, rubbish and garbage
removal servl ; (e) cost of sanitary control; (f) the cost of maintenance, repair and/or replacement of furniture and
fixtures; (g) th cost of all supplies and equipment necessary properly to clean, operate or maintain the Fast Food Seating
Area; (h) the at of all personnel required by Landlord satlsfactorily to supervise, Implement, maintain or operate the Fast
Food Seating as in a high standard of cleanliness and of lency; (1) the cost of any security personnel that may be
required by La lord specifically for the Fast Food Seating Area; Q) amortization of the furniture, fixtures and equipment of
the Fast Food Seating Area; (k) the coat of any other Item or personnel deemed by Landlord necessary to operate or
maintain the F at Food Seating Area In a first class manner; and (1) Landlord's supervisory charge In an amount equal to
fifteen percen (16%) of the total aggregate cost Of operating and maintaining the Fast Food Seating Area, Including,
without limftatl n, those things listed hereinabove. Landlord may have heretofore elected to spread, and may hereafter
elect to spree , the amount of certain Items of the Food Court CAM Sum over such period of years as Landlord shall
determine by mortizing them over such periods instead of Including such amounts entirely in the year In which expended
or Incurred, in Ich event, the annual amortization amount shall be deemed to be an expense Incurred during each year
of the amorti tion period, notwithstanding that such expenses may have been expended or Incurred prior to the execution
hereof.
Section 3.02: FOOD COURT CAM CHARGE.
Tenon s share of the Food Court CAM Sum (the "Food Court CAM Charge") shall be equal to three percent (3%)
of Tenant's m nthly Gross Sales. Tenant understands and agrees that the CAM Sum set forth in
Article does not inclu a the Food Court CAM Sum and Tenant's obligation to pay the Food Court CAM Chaof Lease
shallt nl no ay
reduce Tenant a obligation to pay Tenant's CAM Charge as set forth in Article 8 of this Lease.
Section 3.03: PAYMENT OF FOOD COURT CAM CHARGE.
(a) Tenant shall pay to Landlord, as Additional Rent, Tenant's Food Court CAM Charge. Tenant shall pay
Landlord with) twenty (20) days after the and of each calendar month Tenant's monthly Food Court CAM Charge. Tenant
shall submit p yment along with the Monthly Report as set forth in Section 4.08(a).
(b) Deleted,
(c) Deleted.
(d) Tenant acknowledges and agrees that Tenant's Food Court CAM Charge Is In addition to not only
Tenant's CA Charges but also Tenant's Utility Charges pursuant to
pursuant to I of this Lease and all of the other charges set forth, without Ilm tatlo this Is Lease, Tenant's Tax Charges
I Paoe 1 of this Lease.
IN W11fNESS WHEREOF, Landlord and Tenant have duly executed this FAST FOOD CLUSTER TENANT
EXHIBIT as ofllleven date with the Lease.
LANDLORD:
PREIT SERVICES, LLC,
Agent for PR CAPITAL CITY LIMITED P.rARTNERSHIP
I
TacoSell-KFC-1apltalC*Flnal
September 27, 005 1 Piree/JTF
TENANT:
SEVEN HILLS, INC.
By: ?!l'11 r ?I I
Title: PRE 5) O E N T
Attest:
Title:
47
1
717 737 0607 04:17:35 p.m. 01-08-2008 6110
c
STATEMENT
Maki Cbeek
Payable To:
-
PR CAPITAL CITY LIMITED PARTNERSHIP
PO BOX 92406
CLEVELAND ON 44193
To:
Taco 8aWKFC
Aga: Raphu Tedamby
3900 Trmdle Road
suds 200
Camp Hill PA 17011
FOR RIDUIRIES CALL: Justo Vega TEL: 717.737.62TS or FAIL 717.737-0807
CHARGE DETAIL
oat* - VBrd009
Aemurd - 28106
slabmaN No - 260659
Papa- 1
From: CAPITAL CRY MALL
9506 CAPITAL CITY MALL OR
CAMP HILL PA 17011-7003
TeaaM: Taco 5017C
Amount Rommeod:
Remit by portion with payment.
Capital CRY was Two 99WKFC Lace 000 23631
InVOlCe WA Bill Code Description Chupas Paymanb Balaaco Chxrek Namker
111AM Bitance Forward OD
3131!2007 %RNT Owra" Calculation (Bkpt Sal 2.2".52 2,244.52
81512007 XRE 2006 RET Raaoncitation 57.62 57-82
9/21/2007 FDCT 654,874-28' 3% 1 84623 1,64623
toP36f2007 FOCI $41,621.26' 3% 1,248.64 1"M
11/298007 ELEU ENKW 1,58137 1,58137
11/292007 9TAX Slate Tax 94.88 94.88
11/29f2007 GAS LP ties 917.24 917.24
11r292007 STAR. Stab Tax 5603 55.09
11127x1007 FOCI $48,653.12'3% 1.399.60 1,389.60
11F28!2007 FDCT 556,693.10 •3% 1.700.79 11700.79
12f3V2007 ELEU Electric 1,548,95 1.549.95
12x31/2007 STAX Stab Tax 93.00 9300
12f31== GAS LP Gas 1,49923 1,49933
12/314007 STAR Stab Tex 89.95 89.96
1/1/2006 RENT MINIMUM RENT 3,749.71 9.749.77
111/2006 CAM CAM ESCROW 80230 802.70
1/1/2008 EW Enorpy Management FN woo 50.00
1/1/2006 FDCT FOOD COURT CAM .03 .03
111/2008 MKFD MedceOng Furl 11500 115A0
111/2008 RE REAL ESTATE TAXES 167.19 167.13
PAYMENTS SECTION
(Ill. Data Oosaiption Payments Check Number Renxsrlc Balance
4120/21106 Payment Roca -Thank You 1,875.73 28386 1.05.73
4P24/2006 3.28727• 28405 Vol) 1,331.64-
W4P2008 Payment Roc'd -Thank You 2.103.49 26783 771.95
6/612008 Psymeni Recd - Thank You 3,680.00 26853 4.451.95
711/2006 3,937.72- 27679 VOD 51423
7/3/2006 Payment Recd - Thank You 30.00 27831 54423
?24421108 Payment Reed - Thank You 2,965.01 28532 3.32924
1a18f2D08 Ps"WIM fWd - Thank You 3.907.72 27679 7.466.96
02312006 Payrowd Recd - Thank You 10,981.36 28948 16.448.32
11 VMD06 Paymord Recd - Thank You 582.05 30130 19,03037
12/8f20D6 Paymak Racd -Thank You 9,76920 30192 zl,799.57
112/2007 Payment Reed-Thank You 711A2 30306 29,510.99
EXHIBIT 4
717 737 0607
i
04:17:55 p.m. 01-08-2008 7110
STATEMENT
PAYMENTS SECTION
Wt. cote Deeaip w
Y? Payments CneckNumber Remark
U122007 Payment Reed -Thank You 1,659A8 3W73
1/1212007 Payment Reed - Thank You 3.758.65 31013
2!212007 Poycwt Recd -Thank You 5,001,53 31540
21,15/2007 Payment Reed - Thank You 7,107.89 31572
311212007 Payment Recd -Thank You 2.352.50 32035
41612007 Payment Reed - Thank You 9,75920 32110
4128!2007 Payment Recd -Thank You 2,19625 32140
511=007 Payment Reed - Thank You 2,196.84 32207
5212007 Payment Reed - Thank You 4,86450 32234
811&2007 Payment Rac'd-Thank You 4,884.60 32292
711/2007 Payment W d - Thank You 2,397.70 32334
819/!007 Payment Recd - Thank You 9,7602.0 32459
N102007 Payment Reed - Thank You 5,330.22 32468
81272007 Payment Recd - Thank You 24,284.08 31827
101192007 Payment Rocu - Thank You 9,76920 31986
1 0 /11112 0 0 7 Payment Recd - Thank You 4,907A2 31990
1213/2007 Payment Redd - Thank You 2,723.32 32567
12/312007 Payment Redd -Thank You 9,759.20 32661
04" -
Account -
stswowd No -
Page - 1/8/2006
26105
260659
2
Balance
31,170.45
34,629.10
36,99053
47,038.52
49.391.02
59,160.22
61,356.47
63.653.31
68,437.91
73,322.51
75,72021
85.489A1
90.81953
115,063.71
124,652.91
126,760.33
132.483.65
142.252.85
ACCOUNT SUMMARY
ACCOUNT AGING
Cmmnt
Balance Prior To 1112W3 .00
Pkis Cho" Fan 1112003 19,082.79
Love Payments/Cmft Forn 1112003 .00
AkN3UNTOUE 19562.79
1.30 31-60 61-90 91-12D Orw 120
6.817-66 4,046.12 1,246.64 1164623 2,302.14
717 737 0607 04:18:07 p.m. 01-08-2008 8110
STATEMENT
Male Chock
Payable To:
To:
PR CAPITAL CITY LIMITED PARTNERSHIP
PO BOX 9-406
CLEVELAND ON 44193
Subway Real Estate Cory.
Acre Legal Deparlmont
325 Bic Drive
Milord CT 06460
FOR INQUIRIES CALL: Justo Vega TEL: 717-7374275 or FA)L 717.737-0607
Deb- 1!&2008
Acwurd- 729394
Shlenerd wo - 260861
Pape - 1
from: CAPITAL CRY MALL
3506 CAPITAL CRY MALL OR
CAMP HILL PA 17011.7003
Tenant: Subway
Amount Rwroftd:
Remit bP poreon with Parma
CHARGE DETA9.
Capital CRY Mal subway t a4e 00925NI
invoke Dab Bi Code Oaspgpon Cherpes ro
menb
111/1063
Bolan P-award y Oak" Chock Number
.00
126118667
121314007
V712008
Vt/2008
111P1008
111/2009
111f/208a
1!1/2662 ELEU
STAR
SEC
RENT
MKFD
RE
CAM
EMI Electric
Slab Tax
S-6v
MINIMUM RENT
Marketing Fand
REAL ESTATE TAXES
CAM ESCROW
Energy MOnaporlelO FN 79685
47.92
39.71
3,339.03
83.08
113.91
647.02
50.00 798.65
47.22
32.71
3.333.03
83.08
11381
$4786
50.00
PAYMENTS SECTION
OIL Dab DOSal"mm
IrAQW Payment Reed - Thw* You
2W2D04 Payment Racd - That* You
219x1004 Payment Reed - Thank You
3158004 Payment Reeld - Thank You
3/512004 Payment Wed - Thank You
31512004 Payment Reed - Thank You
41641004 Payment Reed - Thank You
41541004 Payment Read - Thank You
415/2004 P10101911111 ROM - Thank You
4122004 Patmerd Reed -Thank You
5/132004 Payment Reed - ThW* You
5f1712004 Payment Reed - Thank You
527/2004 PayrrloM ROC Id - Thank You
611412004 Paynent ROCV - Thank You
&1412004 Payment Reed - Thank You
7/6/2004 POymew Recd - Thank You
7/&2053 Pryment need - Thank You
&5x1004 Payment Reed=Thank You
V&-004 Pormat Reed - Thank You
9"IMAN Parnell Reed - Thank You
1011rA" Paymwd Reed - Thank You
10/1941004 Psymerd Rood - Thank you
1114/2004 Payment Reed - Thank you
1114x1004 Payment Roc*4 - Thank You
Parma*
3,002.08 1692
690.17 1711
3.002A8 1706
3,002.08 1732
517.75 1731
48AD 1733
519.53 1750
3,002.02 1751
2,112.07 1748
86825 1780
3,002.08 1793
387.08 1800
3,725.00 1805
625.30 1817
3.049.87 1818
3.049.87 1834
84324 1835
384987 1861
699.84 188o
3.04987 1885
67526 1899
3.049.89 1915
68227 1936
3.049.87 1937
Cheek Number
Babnm
3.0112.06
3,892.25
6,494.33
9,696.41
10214.16
10,26216
19,761.72
13,78247
16,896$4
18,503.09
19,503.17
20.69225
23,817.25
24,442-66
27.492.42
30.54229
31,165,53
34,235.40
34.93524
37,965,11
36.568.37
41.61828
42.27253
45.32240
717 737 0607
i
PAYMENTS SECTION
GA. Date Detcip6on
11-tlwzm Payment Recd - Thank You
12/16x2004 Payment Recd - Thank You
12/102004 PeymentRecd-Thank You
111WOOS Payment Recd - Thank You
1!18/2005 Payment Recd - Thank You
V112005 Payment Reed - Thank You
21612005 Parmd Recd - Thank you
?/2?2005 Psyrrant Reed - Thank You
3x712005 Payment Recd - Thank You
3!112005 Payment Recd - Thank Yu
4/812005 Par-* Recd - Thank You
4/112005 Payment Recd - Thank Y.
51912005 Payment Racy - Thank You
519/2005 Payment Racy - Thank You
61612005 Payment Recd - Thank You
&15x2005 Payment Reed - Thank You
711x!005 P8ymam Reed - Thank You
7/11r2005 Payment R9cd - Thank You
8!82005 PaFWdPecd-Thank You
UrA05 ParientRecd-Thank You
8/169005 Payment Reed - Thank You
91/29o5
91V20p5
91612006 Payment Reed - Thank You
91912005 Paymwd RWO - Thank You
10112005 PaymeotReed -ThahkYou
11!912005 Pty1tn01 Rata -Thank You
1/232916 P4ymenl Recd - Thank You
1/9912006 Payment Redd - Thank You
2M02008 PaPMMReed -Thank You
21712008 P%V" RwW - Thank You
WIM Paymeni Recd - Thank You
3/102088 Payment R9cd - Thank You
4/14/2005 PayaaM Reetd - Thank You
41172916 P4"rd Rtcd - Thank you
&112006 Paymsnl Reed - Thank You
5115x1006 Peytnent Recd - Thank You
61912006 Payme dRecd - Thank Yau
6/9!2000 Payment Recd - Thank You
7110M PQWWtRacd - Thank You
T102006 Payment RadW - Thank you
71102006 Payment Redd - Thank You
71142009 Payment RW d - Thank You
8142006 Payment R4ty - Thank You
8/4x1006 PaynaM Recd - Thank You
8142006 Payment Reed - Thank You
916x1006 PaluaeMRaed-Thank You
91812006 Payment Recd - Thank You
9V612006 PaymeM Recd - Thank You
1018!7106 Paymenh Reed - Thank You
10/6/}'106 PayeaMRedd -Thank You
11/012006 Payment Reed -Thank You
11113/2006 Payment Redd - Thank Yoke
12M12006 Per-/ Reed - Thank You
12/12006 Payment Rted - Thank You
11212007 Payment Reed - Thank you
STATEMENT
Paymeft Cheek Number
590.04 1944
3,049.87 1970
581.28 1971
3,073.87 2011
684&2 2015
0035.20 2019
3,099.87 2030
655.47 2039
3.067.62 2052
647A3 2056
625.84 2059
3067A2 2068
696.69 2101
3,067A2 2102
676.87 2126
3087.62 2125
751.47 2146
3,057.62 2145
30.00 2171
3,067.62 2170
774A1 2178
3,067.62- 2170
30AO- 2171
3,067.62 2196
91323 2200
717AO 2226
724.78 2239
823.52 2319
4,166.82 2328
4.11.6.82 2337
643.22 2345
4,106.62 2374
878A9 2317
95442 2405
4,186.02 2401
712.65 2439
4,196.82 2436
4.165,62 2468
4,18602 2405
1.375A2 2461
30.00 2482
4.188.02 2474
2.529.67 2496
4.166&2 2499
4.500.00 2501
624.92 2504
2.352.81 2525
4.166.82 2524
628A5 2528
650.77 2551
4.16622 2555
4.168.82 2569
86629 2592
4,16602 2601
685.96 2602
627.67 2645
04:18:22 p.m. 01-08-2008 9/10
Date - 102006
Account- 729394
StawmemNO- 260661
pap - 2
Remark
WOO
WOO
dabnes
45.916.44
48,968.31
49,549.59
SUMS
53.30826
59.343.48
62.449.35
63,098.82
86,168.44
86 13A7
67,439.31
70,50693
71.208.62
74,274.14
74,851.01
78,018&3
78,770.10
81.637!2
81.867.72
84.98531
85.709.73
92,642.13
82 012.13
85079.75
89.592.08
87.310,78
96.035.53
88.""
83.025.67
97,19789
9703391
10$00773
102,951.22
103,93604
106.10200
10901341
11208223
117,149.03
121,715.87
122,691.19
122,721-39
12608921
129,41708
133,584.70
134AS4.70
136,709.92
141,282.43
145,429.25
MA57.30
146,799.07
160,874.89
155,041.71
155,709.00
15907402
160.S40.78
101,169.45
71 7 737 0607
PAYMENTS SECTION
OA.Oate Desaription
11128007 Payment Rsod - Thank You
2/88007 "am Reed - Thank You
27152007 Payment Reed - Thank You
2fl5JZ007 Payment Reed - Thank You
3/152007 Payment Reed - Thank You
31152007 Payment Reed - Thank You
4248007 Payment Reed - Thank You
4124/2007 Paymwd Reed - Thank You
41248007 Poymanl Reed . Thank You
511412007 Paymml Reed - Thank You
Sn4120D7 Paymant Reed - Thank You
611412007 Paymwd Reed - Thank You
6114120D7 Psynwd Reed -Thank You
7/1212007 Payment Reed - Thank You
7112!2007 Payment Reed - Thank You
7/2312007 Payment Reed - Thank You
8/138007 PaymentRocid -Thank You
N1312007 Paymwd Reed - Thank Yaw
911172007 ParnmtReed -Thank YOV
9/1412007 Payment Reed - Thank You
91112007 Payment Reed - Thank You
10/712OD7 Payment Reed - Thank You.
10152007 Paymml Reed - Thank You
IW 2007 Payment Reed - Thank Yau
111152007 Psymenl Reed -Thank You
11!162007 Perm" Reed - Thank You
1IMSMOT Payment Reed -Thank You
1 21 712 0 0 7 Payment Reed - Thank You
121192007 Payment ReC d - Thank You
12!1412007 Payment Reed - Thank You
ACCOUNTSUMMARY
ACCOLINTAGIN43
STATEMENT
Payments
4,166.82 2648
252.62 2571
613.78 2676
4.166.62 2675
630.72 2696
4,166.62 2696
609.12 2730
1,556.63 2733
4,168.82 2728
4,166.82 2746
61951 2745
611.84 2765
4,156.82 2767
4.16822 2761
130,09 2784
2,500.60 2795
506.16 2601
4,168,12 21102
542.10 2121
16914 2630
4,166.82 2122
2,000.00 2645
943.17 2156
4,166,82 2862
k M03 2875
4,166.82 2677
625" 2874
10.500.90 2892
4,166.62 2908
70049 2905
04:18:43 p.m. 01-08-2008 10/10
Oats - 1/8/2008
ACC4Wd- 729394
Shm mwd No - 280861
Page - 3
Balrroe Pdw To 1!12003 ,00
Pie Cheryes From 1112003 5.013.36
Lass PsymeMs / Credits From IMAM .00
A810UNTOUB: 5.91351
Balance
165,335.27
155,588.09
156,201.88
17DAM70
170,999.42
175,186.24
175,775.36
177,331.99
181,498.81
185,666.63
186,284.94
181.191.71
191A83.8D
195,230.42
195,860,61
198,364.51
198,666,67
203.033.49
203,576.29
203,748.03
207.912.85
209.912.15
210A58.O2
213A22. 4
215,101.87
219,288.19
219,894,59
230,394.59
238,561,41
235,261.90
Current 1.30 31-60 61 -90 91-120 Over 120
6,013.36
04 71
CA
00
b
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-00458 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PR CAPITAL CTY LIMITED PARTNER
VS
SEVEN HILLS INC
MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SEVEN HILLS INC
the
DEFENDANT , at 1502:00 HOURS, on the 29th day of January , 2008
at 3900 TRINDLE ROAD
CAMP HILL, PA 17011
ONIX GORDEA, BOOKKEEPER
by handing to
ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 13.44
Postage .58
Surcharge 10.00
.00
? 42.02
Sworn and Subscibed to
before me this day
So Answers:
R. Thomas Kline
01/30/2008
MARCUS & SHAPIRA
By.
Deputy Sheriff
0 f A. D.
I
4
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED CIVIL DIVISION
PARTNERSHIP,
Plaintiff,
V.
No. 2008-00458
IMPORTANT TEN DAY NOTICE
OF INTENT TO TAKE DEFAULT
SEVEN HILLS, INC.,
Filed on Behalf of the Plaintiff,
Defendant. PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
TEN DAY NOTICE OF INTENT TO TAKE DEFAULT
Dated: 2/29/08
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU
MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
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 LAWYER REFERRAL SERVICE
4`n Floor, Cumberland County Courthouse
Carlisle, PA 17013
..
JURY TRIAL DEMANDED
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Ten Day
Notice of Intent to Take Default was served upon the Defendant listed below by Certified Mail-
Return Receipt Requested and United States mail, first class service, postage prepaid, this C--- &
day of February, 2008:
Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
Moira Cain-Mannix
r? ! .;F
t
'
?
'.r°
?.,?
.
?t{
^
`
, r
,?
.
IN THE COUR'T' OF COMMON PLEAS
OF CUMBERLAND COUNTY, tENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
PRAECIPE TO ENTER DEFAULT
JUDGMENT
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION
Plaintiff, )
No. 2008-00458
V. )
SEVEN HILLS, INC. )
Defendant. )
PRAECIPE TO ENTER DEFAULT JUDGMENT
TO THE PROTHONOTARY:
Please enter default judgment against the Defendant, Seven Hills, Inc. ("Seven Hills") for
failure to file within the required time a responsive pleading against it pursuant to Pennsylvania
Rules of Civil Procedure 1037. In support thereof, Plaintiff, PR Capital City Limited
Partnership, states as follows:
I . The Complaint against Seven Hills was filed on January 22, 2008. The
Complaint contained the Notice to Defend in the form of Pa. R.C.P. No. 1018.1.
2. Service was made on Seven Hills c/o Mr. Raghu Tadavarthy, 3900 Trindle Road,
Suite 200, Camp Hill, PA 17011, by the Sheriff of Cumberland County on January 29, 2008.
The Affidavit of Service is attached hereto as Exhibit 1.
3. Seven Hills did not file or serve an Answer to the Complaint within the first 20
days after the Complaint was served. A Ten Day Notice of Intent to take Default pursuant to
Rule 237.35 ("Notice") was sent by First Class Regular Mail and Certified Mail, Return Receipt
Requested, to Seven Hills on March 3, 2008. The Notice is attached hereto as Exhibit 2.
4. More than 10 days have elapsed since the Notice was sent to Seven Hills and no
responsive pleading has been filed.
5. The Complaint seeks judgment against Seven Hills in the amount of
$1,055,208.76. Pursuant to Pa. R.C.P. No. 1037 (b)(1), the Prothonotary is authorized to enter
judgment in default of an answer for a sum certain which can be made by computation.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, respectfully requests the
Prothonotary to enter a judgment against Seven Hills in the amount of $1,055,208.76.
Respectfully submitted,
Ittephen S. Zubrow (Pa. ID No. 43523)
Moira Cain-Mannix (Pa. ID No. 81131)
Marcus & Shapira LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219-6401
(412) 471-3490
Counsel for Plaintiff, PR Capital City
Limited Partnership
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-00458 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PR CAPITAL CTY LIMITED PARTNER
VS
SEVEN HILLS INC
MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SEVEN HILLS INC. the
DEFENDANT , at 1502:00 HOURS, on the 29th day of January , 2008
at 3900 TRINDLE ROAD
CAMP HILL, PA 17011 by handing to
ONIX GORDEA, BOOKKEEPER, ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
18.00
13.44
.58
10.00
.00
42.02
Sworn and Subscibed to
before me this
of
day
So Answers:
R. Thomas Kline
01/30/2008
MARCUS & SHAPIRA
Deputy Sheriff
A. D.
Exhibit 1
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
No. 2008-00458
CIVIL DIVISION
IMPORTANT TEN DAY NOTICE
OF INTENT TO TAKE DEFAULT
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLB
Firm No. 145
One Oxford Centre, 35t1i Floor - ' s=
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
i
Exhibit 2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
CIVIL DIVISION
No. 2008-00458
Plaintiff;
v.
SEVEN HILLS, INC.,
Defendant.
TEN DAY NOTICE OF INTENT TO TAKE DEFAULT
IMPORTANT NOTICE
Dated: 2/29/08
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU
MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
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 LAWYER REFERRAL SERVICE
4`h Floor, Cumberland County Courthouse
Carlisle, PA 17013
JURY TRIAL DEMANDED .-
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Ten Day
Notice of Intent to Take Default was served upon the Defendant listed below by Certified Mail-
Return Receipt Requested and United States mail, first class service, postage prepaid, this
day of February, 2008:
Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
Moira Cain-Mannix I
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to
Enter Default Judgment was served upon the Defendant listed below by Certified Mail, Return
Receipt Requested, and United States mail, first class service, postage prepaid, this _?-?3a`y of
March, 2008:
Seven Hills, Inc.
Attention: Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
Moira ?Cain-M?annix/
O
-TI
?
? N
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
NOTICE OF ENTRY OF DEFAULT JUDGMENT
TO: Seven Hills, Inc.
Please take notice that a default judgment in the amount of $1,055,208.76 has been
entered against you on the date below in favor of the Plaintiff.
Date: par ao Moog
Prot onotary, on
of
Court of Co Pled,
Cumberland County
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
PRAECIPE TO ENTER DEFAULT
JUDGMENT
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION
Plaintiff, )
No. 2008-00458
V. )
SEVEN HILLS, INC. )
Defendant. )
PRAECIPE TO ENTER DEFAULT JUDGMENT
TO THE PROTHONOTARY:
Please enter default judgment against the Defendant, Seven Hills, Inc. ("Seven Hills") for
failure to file within the required time a responsive pleading against it pursuant to Pennsylvania
Rules of Civil Procedure 1037. In support thereof, Plaintiff, PR Capital City Limited
Partnership, states as follows:
1. The Complaint against Seven Hills was filed on January 22, 2008. The
Complaint contained the Notice to Defend in the form of Pa. R.C.P. No. 1018.1.
2. Service was made on Seven Hills c/o Mr. Raghu Tadavarthy, 3900 Trindle Road,
Suite 200, Camp Hill, PA 17011, by the Sheriff of Cumberland County on January 29, 2008.
The Affidavit of Service is attached hereto as Exhibit 1.
3. Seven Hills did not file or serve an Answer to the Complaint within the first 20
days after the Complaint was served. A Ten Day Notice of Intent to take Default pursuant to
Rule 237.35 ("Notice") was sent by First Class Regular Mail and Certified Mail, Return Receipt
Requested, to Seven Hills on March 3, 2008. The Notice is attached hereto as Exhibit 2.
4. More than 10 days have elapsed since the Notice was sent to Seven Hills and no
responsive pleading has been filed.
5. The Complaint seeks judgment against Seven Hills, Inc. for possession of the
Premises known as Store Numbers FC-1 and FC-4 at the Capital City Mall. Pursuant to Pa.
R.C.P. No. 1037 (b), the Prothonotary is authorized to enter judgment for possession in default of
an answer.
WHEREFORE, Plaintiff, PR Capital City Limited Partnership, respectfully requests the
Prothonotary to enter a judgment against Seven Hills for possession of the Premises known as
Store Numbers FC-1 and FC-4 at the Capital City Mall.
Respectfully submitted,
Jid
Stephen S. Zubrow (Pa. I No. 43523)
Moira Cain-Mannix (Pa. ID No. 81131)
Marcus & Shapira LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219-6401
(412) 471-3490
Counsel for Plaintiff, PR Capital City
Limited Partnership
SHERIFF'S RETURN - REGULAR
CASE NO: 2008-00458 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
PR CAPITAL CTY LIMITED PARTNER
VS
SEVEN HILLS INC
MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
SEVEN HILLS INC. the
DEFENDANT , at 1502:00 HOURS, on the 29th day of January , 2008
at 3900 TRINDLE ROAD
CAMP HILL, PA 17011 by handing to
ONIX GORDEA, BOOKKEEPER, ADULT IN CHARGE
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof
Sheriff's Costs:
Docketing
Service
Postage
Surcharge
Sworn and Subscibed to
before me this
of
So Answers:
18.00 ,
13.44;
.58 10.00 R. Thomas Kline
.00
42.02 01/30/2008
MARCUS & SHAPIRA
By: <
day Deputy-Sheriff
/
A.D.
Exhibit 1
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
No. 2008-00458
CIVIL DIVISION
IMPORTANT TEN DAY NOTICE
OF INTENT TO TAKE DEFAULT
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
PA ID No. 81131
n
MARCUS & SHAPIRA LLJ 0
Firm No. 145 T,
One Oxford Centre, 35
F?,7 i
t
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Exhibit 2
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
TEN DAY NOTICE OF INTENT TO TAKE DEFAULT
IMPORTANT NOTICE
Dated: 2/29/08
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU
MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
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 LAWYER REFERRAL SERVICE
4`h Floor, Cumberland County Courthouse
Carlisle, PA 17013
JURY TRIAL DEMANDED
41 `
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Ten Day
Notice of Intent to Take Default was served upon the Defendant listed below by Certified Mail-
Return Receipt Requested and United States mail, first class service, postage prepaid, this,`
day of February, 2008:
Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
Moir
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to
Enter Default Judgment was served upon the Defendant listed below by Certified Mail, Return
Receipt Requested, and United States mail, first class service, postage prepaid, this J?tay of
March, 2008:
Seven Hills, Inc.
Attention: Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
Moira Cain-Mannix
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION
Plaintiff, )
No. 2008-00458
V. )
SEVEN HILLS, INC., )
Defendant. )
NOTICE OF ENTRY OF DEFAULT JUDGMENT
TO: Seven Hills, Inc.
Please take notice that a default judgment for possession of the Premises known as Store
Numbers FC-I and FC-4 at the Capital City Mall has been entered against you on the date below
in favor of the Plaintiff.
Date:_ a,r?eh a0 a, oo8
Pro onotary,
Court of Co m n Ple s of
Cumberland County
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
To the Prothonotary:
Defendant.
CIVIL DIVISION
No. 2008-00458
PRAECIPE FOR WRIT OF EXECUTION
Kindly issue a Writ of Execution upon a judgment entered in the above matter.
(1) directed to the sheriff of Cumberland County, Pennsylvania;
(2) against Seven Hills, Inc., Defendant, whose last known address is c/o Mr.
Raghu Tadavarthy, 3900 Trindle Road, Suite 200, Camp Hill, PA 17011,;
and
(3) against Fulton Bank, Garnishee, with an address of 1423 S. Market Street,
Mechanicsburg, PA 17055; and
(4) and index this writ against Seven Hills, Inc., Defendant, as a lis pendens
against the real property of the Defendant.
(5) Amount due: $ 1,055,208.76
Interest from March 20, 2008 at 6%: $ 3,295.72
Costs:
Writ: $ 24.50
Sheriff $ 150.00
TOTAL AMOUNT: $ 1,058,678.98
F . 1
Date: April , 2008 `t
Stephen S. Zubrow (PA I.D. No. 43523)
Moira Cain-Mannix (PA ID No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 08-458 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff (s)
From SEVEN HILLS, INC., c/o Mr. Raghu Tadavarthy, 3900 Trindle Road, Suite 200, Camp Hill,
PA 17011
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of
GARNISHEE(S) as follows:
FULTON BANK, 1423 S. Market Street, Mechanicsburg, PA 17055
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $1,055,,2 o8. 7&
Interest from 3/20/08 at 6%: $3,295.72
Atty's Comm %
Atty Paid $175.52
Plaintiff Paid
Date: 4/10/08
(Seal)
L.L. $.50
Due Prothy $2.00
Other Costs
- 2a; a a
Curti . Long, Pro
By:
Deputy
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, ESQUIRE
Address: MARCUS & SHAPIRA LLP
ONE OXFORD CENTRE, 35TH FLR
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: 412-471-3490
Supreme Court ID No. 81131
SHERIFF'S RETURN - GARNISHEE
CASE NO: 2008-00458 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CTY LIMITED PARTNER
VS
SEVEN HILLS INC
And now NOAH CLINE
,Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0011:00 Hours, on the 17th day of April , 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
SEVEN HILLS INC
C/0 MR RAGHU TADAVARTHY , in the
hands, possession, or control of the within named Garnishee
FULTON BANK 1423 S MARKET ST
MECHANICSBURG, PA 17055
Cumberland County, Pennsylvania, by handing to
MEGAN NORDSTROM (BRANCH MANAGER) ,
personally three copies of interogatories together with 3
and attested copies of the within WRIT OF EXECUTION
the contents there of known to Her .
true
and made
Sheriff's Costs: So answe
Docketing .00 °
Service .00
Affidavit .00 R. Thomas Kline
Surcharge .00 Sheriff of Cumberland County
.00
.00
04/18/2008
Sworn and Subscribed to
before me this day of By
Deputy Sheriff
A.D
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
CIVIL ACTION - LAW
No. 2008-00458
PRAECIPE FOR ENTRY OF
JUDGMENT AGAINST
GARNISHEE ON ADMISSIONS
Defendant,
V.
FULTON BANK,
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Garnishee.
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
Pa. I.D. No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
(A0183770.1)
R
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant,
V.
FULTON BANK,
Garnishee.
CIVIL ACTION - LAW
No. 2008-00458
PRAECIPE FOR ENTRY OF JUDGMENT
AGAINST GARNISHEE ON ADMISSIONS
TO: PROTHONOTARY
Pursuant to Pa.R.Civ.P. 3146(b), please enter judgment against Garnishee, Fulton Bank,
in the amount of $7,347.14 based on the admissions in the answers to interrogatories attached
hereto, plus taxable costs to be determined. This garnishment does not exceed the amount of the
judgment ($1,058,678.98)
Amount on Writ: $ 7,347.14
Costs:
Poundage (2%)
Other costs to be determined
Respectfully submitted,
Dated: May 5, 2008
Stephen S. Zubrow
Pa. I.D. No. 43523
Moira Cain-Mannix
Pa. I.D. No. 81131
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
CIVIL ACTION - LAW
No. 2008-00458
V.
SEVEN HILLS, INC.,
Defendant,
V.
FULTON BANK,
Garnishee.
NOTICE OF ENTRY OF JUDGMENT
ON GARNISHEE ADMISSIONS
To: FULTON BANK, Garnishee
Please take notice that a judgment on admissions has been entered against you in the
above action arising out of your answers to Interrogatories Directed to Garnishee under
Pa.R.Civ.P. 3146(b) on the date listed below.
Date: A?-? 2008
Pro
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe
for Entry of Judgment Against Garnishee on Admissions was forwarded by United States Mail,
postage prepaid, to counsel of record listed below this 561 day of May, 2008:
Chris Land
Fulton Bank
1423 S. Market Street
Mechanicsburg, PA 17055
Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
1
Moira Cain-Mannix
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION
Plaintiff, ) No. 2008-00458
V. )
SEVEN HILLS, INC., )
Defendant. )
45-uDeP5 -&
INTERROGATORIES IN ATTACHMENT
TO: Fulton Bank, Garnishee
YOU ARE REQUIRED TO FILE ANSWERS TO THE FOLLOWING
INTERROGATORIES WITHIN TWENTY (20) DAYS AFTER SERVICE UPON YOU.
FAILURE TO DO SO MAY RESULT IN JUDGMENT AGAINST YOU:
1. At the time you were served or at any subsequent time did you owe the defendant
any money or were you liable to defendant on any negotiable or other written instrument, or did
defendant claim that you owed it any money or was liable to it for any reason?
f?
2. At the time you were served or at any subsequent time was there in your
possession, custody or control or in the joint possession, custody or control of yourself and one
or more other persons any property of any nature owned solely or in part by the defendant?
?V v
3. At the time you were served or at any subsequent time did you hold legal title to
any property of any nature owned solely or in party by the defendant or in which defendant held
or claimed any interest? /10
4. At the time you were served or at any subsequent time did you hold as fiduciary
any property in which the defendant had an interest?
5. At any time before or after you were served did the defendant transfer or deliver
any property to you or to any person or place pursuant to your direction or consent and if so what
was the consideration therefor?
11nn?
4Uv
6. At any time after you were served did you pay, transfer or deliver any money or
property to the defendant or to any person or place pursuant to their direction or otherwise
discharge any claim of the defendant against you?
a
7. If your answer to any of the above is in the affirmative, please state the amount or
value of the property you are holding.
/. - c????.?5
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///?/J//?/? may, i // d/7P / e n. 1"1,4w /))q /AAA i i
Stephen S. Zubrow (PA I.D. No. 43523)
Moira Cain-Mannix (PA ID No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
2
VERIFICATION
I, Fulton Bank . Garnishee herein, verity that the.statern- ents made in these
Interrogatories in Attachment are true and correct. I underst-nnd that false statements
herein are made subject to the penalties. of I8 Pa.C.S- § 4904, relating to unsworrt
falsification to authorities-
BY.. tzea-?-
ADDRESS:
vc, z
Dated: d i
i
30139
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe
for Entry of Judgment Against Garnishee on Admissions was forwarded by United States Mail,
postage prepaid, to counsel of record listed below this 23`d day of April, 2008:
Chris Land
Fulton Bank
1423 S. Market Street
Mechanicsburg, PA 17055
Mr. Raghu Tadavarthy
3900 Trindle Road
Suite 200
Camp Hill, PA 17011
I -
Moira Cain-Mannix
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant,
V.
FULTON BANK,
Garnishee.
CIVIL ACTION - LAW
No. 2008-00458
NOTICE OF ENTRY OF JUDGMENT
ON GARNISHEE ADMISSIONS
To: FULTON BANK, Garnishee
Please take notice that a judgment on admissions has been entered against you in the
above action arising out of your answers to Interrogatories Directed to Garnishee under
Pa.R.Civ.P. 3146(b) in the amount of $7,666.08 on the date listed below.
Date: , 2008
Prothonotary
o
d
s
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
-* R V-1 '3 S CA-.C-
PRAECIPE FOR WRIT OF EXECUTION
To the Prothonotary:
Kindly issue a Writ of Execution upon a judgment entered in the above matter.
(1) directed to the sheriff of Cumberland County, Pennsylvania;
(2) against Seven Hills, Inc., Defendant, whose last known address is c/o Mr.
Raghu Tadavarthy, 3900 Trindle Road, Suite 200, Camp Hill, PA 17011,;
and
(3) against Fulton Bank, Garnishee, with an address of 1423 S. Market Street,
Mechanicsburg, PA 17055; and
(4) and index this writ against Seven Hills, Inc., Defendant, as a lis pendens
against the real property of the Defendant.
(5) Amount due: $ 1,047,861.62
Interest from May 9, 2008 at 6%: $ 18,086.38
Costs:
Writ: $ 24.50
Sheriff: $ 150.00
TOTAL AMOUNT: $ 1,066,122.50
j +.
J
Date: August ZL, 2008
Stephen S. Zubrow (PA I.D. No. 43523)
Moira Cain-Mannix (PA ID No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
cr-A
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SHERIFF'S RETURN - GARNISHEE
CASE NO: 2008-00458 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CTY LIMITED PARTNER
VS
SEVEN HILLS INC
And now STEVE BENDER
,Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:40 Hours, on the 10th day of September, 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
SEVEN HILLS INC
C/O MR RAGHU TADAVARTHY , in the
hands, possession, or control of the within named Garnishee
FULTON BANK 1423 S MARKET ST
MECHANICSBURG, PA 17055
Cumberland County, Pennsylvania, by handing to
ADRIENNE BLACK (CUSTOMER SERVICE)
personally three copies of interogatories together with 3 true
and attested copies of the within WRIT OF EXECUTION and made
the contents there of known to Her .
Sheriff's Costs: So answe s:
Docketing .00
Service .00
Affidavit .00 R. Thomas Kline
Surcharge .00 Sheriff of Cumberland County
0000 ?
09//11/2008
Sworn and Subscribed to
before me this day of By
Deputy Sheriff
A.D
L
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
Plaintiff, )
V. )
SEVEN HILLS, INC., )
Defendant, )
V. )
FULTON BANK, )
Garnishee )
CIVIL ACTION - LAW
No. 2008-00458
PRAECIPE TO DISCONTINUE
WITHOUT PREJUDICE AS TO
GARNISHEE FULTON BANK
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
Pa. I.D. No. 81131
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant,
V.
FULTON BANK,
Garnishee.
CIVIL DIVISION
No. 2008-00458
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
AS TO GARNISHEE FULTON BANK
TO THE PROTHONOTARY:
Pursuant to Pa. R. Civ. P. 229, please mark the above action discontinued without
prejudice as to Garnishee Fulton Bank. Plaintiff, PR Capital City Limited Partnership, reserves
the right to reinstitute garnishment proceedings as necessary to collect on its judgment.
Dated: October 24, 2008
Respectfully submitted,
._4
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
f
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to
Discontinue as to Garnishee Fulton Bank was served upon the following by facsimile and United
States mail, first class service, postage prepaid, this 24th day of October, 2008:
Fulton Bank
4429 Bonney Road, Suite 320
Virginia Beach, VA 23462
Attention: Chris Land
Seven Hills, Inc.
Attention: Mr. Raghu Tadavarthy
3900 Trindle Road, Suite 200
Camp Hill, PA 17011
Y''??,, / ..
Moira Cain-Mannix
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R. Thomas Kline, Sheriff, who being duly sworn according to law, states this
Writ is returned ABANDONED, no action taken in six months.
Sheriff s Costs:
Docketing
Poundage
Law Library
Prothonotary
Mileage
Surcharge
Levy
Postage
Garnishee
18.00
1.19
.50
2.00
10.00
20.00
.88
9.00
61.57 116163)09 ?.
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Advance Costs: 150.00
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 08458 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff (s)
From SEVEN HILLS, INC., c/o Mr. Raghu Tadavarthy, 3900 Trindle Road, Suite 200, Camp Hill,
PA 17011
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of
GARNISHEE(S) as follows:
FULTON BANK, 1423 S. Market Street, Mechanicsburg, PA 17055
and to notify the garnishee(s) that: (a) anattachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $1,055, 020$ . %,
Interest from 3120/08 at 6%: $3,295.72
Atty's Comm %
Atty Paid $175.52
Plaintiff Paid
Date: 4/10/08
(Seal)
L.L. $.50
Due Prothy $2.00
Other Costs
Curtis . Long, PBy:
Deputy
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, ESQUIRE
Address: MARCUS & SHAPIRA LLP
ONE OXFORD CENTRE, 35TH FLR
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: 412471-3490
Supreme Court ID No. 81131
jf
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
V.
SEVEN HILLS, INC.,
Defendant.
CIVIL DIVISION
No. 2008-00458
PRAECIPE FOR RE-ISSUE OF WRIT OF EXECUTION
To the Prothonotary:
Kindly issue a Writ of Execution upon a judgment entered in the above matter.
(1) directed to the sheriff of Cumberland County, Pennsylvania;
(2) against Seven Hills, Inc., Defendant, whose last known address is c/o Mr.
Raghu Tadavarthy, 3900 Trindle Road, Suite 200, Camp Hill, PA 17011,;
and
(3) against Fulton Bank, Garnishee, with an address of 1423 S. Market Street,
Mechanicsburg, PA 17055; and
(4) and index this writ against Seven Hills, Inc., Defendant, as a lis pendens
against the real property of the Defendant.
(5) Amount due: $ 734,573.81
Interest from March 20, 2008 at 6% 69,190.81
Costs:
Writ: $ 24.50
Sheriff: $ 150.00
TOTAL AMOUNT: $ 803,939.12
1't?
Date: October, 2009
Stephen S. Zubrow (PA I.D. No. 43523)
Moira Cain-Mannix (PA ID No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
a
?F!ILED- i
OC T i.. G` 1,*r wv
2009 OCT 19 PI'l 2: 19
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
N008-458 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP
Plaintiff (s)
From SEVEN HILLS, INC. C/O MR. RAGHU TADAVARTHY, 3900 TRINDLE ROAD SUITE
200, CAMP HILL, PA 17011
(1) You are directed to levy upon the property of the defendant (s)and to sell AS A LIS PENDENS
AGAINST THE REAL PROPERTY OF THE DEFENDANT.
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of FULTON BANK, 1423 S. MARKET STREET, MECHANICSBURG 17055
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $734,573.81 L.L.
Interest FROM MARCH 20, 2008 AT 6% - $69,190.81
Atty's Comm % Due Prothy $2.00
Atty Paid $273.09 Other Costs
Plaintiff Paid
Date: 10/19/2009
d"/-
Curtis R. Long, Prothonotary
(Seal) By: - 4OK2 `?7
eputy
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, ESQ.
Address: ONE OXFORD CENTER, 35TH FLOOR
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: (412) 471-3490
Supreme Court ID No. 81131
Sheriffs Office of Cumberland County
R Thomas Kline THE'-
Chief F(LED?-f.,FFi0E
Sheriff alt, pt ?nF
Ronny R Anderson
Deputy r. 2009 NOV -6 FPS 2: 58
Jody S Smith r`
}9 I
Civil Process Sergeant °FF= EF THE '"ERIF UNA, )?:
Edward L Schorpp
Solicitor
PR Capital City Limited Partnership Case Number
vs. 2008-458
Seven Hills Inc.
SHERIFF'S RETURN OF SERVICE
10/28/2009 02:49 PM - Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on October
28, 2009 at 1449 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and
monies of the within named defendant, to wit: Seven Hills, Inc., c/o Mr. Raghu Tadavarthy, in the hands,
possession, or control of the within named garnishee, Fulton Bank, 1423 S Market Street, Mechanicsburg,
Cumberland County, Pennsylvania 17013, by handing to Adrienne Black, Teller, personally three copies o-
interrogatories together with three true and attested copies of the writ of execution and made the contents
there of known to her.
The writ of execution and notice to defendant was mailed on October 30, 2009 to Seven Hills Inc., c/o Mr.
Raghu Tadavarthy, 3900 Trindle Road, Ste 200, Camp Hill, PA 17011.
So Answers,
R. Thomas Kline, S eriff
gy
Deputy Sheriff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL ACTION - LAW
Plaintiff, ) No. 2008-00458
V.
SEVEN HILLS, INC.,
Defendant,
V.
FULTON BANK,
Garnishee.
PRAECIPE TO DISCONTINUE
WITHOUT PREJUDICE AS TO
GARNISHEE FULTON BANK
Filed on Behalf of the Plaintiff,
Exton Square Property, LLC
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Moira Cain-Mannix
Pa. I.D. No. 81131
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35 b Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff,
CIVIL DIVISION
No. 2008-00458
v.
SEVEN HILLS, INC.,
Defendant,
v.
FULTON BANK,
Garnishee.
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
AS TO GARNISHEE FULTON BANK
TO THE PROTHONOTARY:
Pursuant to Pa. R. Civ. P. 229, please mark the above action discontinued without
prejudice as to Garnishee Fulton Bank. Plaintiff, PR Capital City Limited Partnership, reserves
the right to reinstitute garnishment proceedings as necessary to collect on its judgment.
Dated: November 12, 2009
Respectfully submitted,
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
35fl' Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to
Discontinue as to Garnishee Fulton Bank was served upon the following by facsimile and United
States mail, first class service, postage prepaid, this 12th day of November, 2009:
Fulton Bank
4429 Bonney Road, Suite 320
Virginia Beach, VA 23462
Attention: Chris Land
Seven Hills, Inc.
Attention: Mr. Raghu Tadavarthy
3900 Trindle Road, Suite 200
Camp Hill, PA 17011
Robert M. Morgillo, Esquire
Steinberg Fineo Berger & Fischoff, P.C.
401 Broadhollow Road, 4th Floor
Melville, NY 11747
Moira Cain-Mannix
OF N P r T Y
2009 NOV 16 P ii " 6
,. 1t ITI,
46.gp pp All,{
C& 5c
a,33(-
h
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
#"?j'ia of clam ly,
0
FILED-OFFICE.
OF THE PROTHONOTARY
7011 JAN 20 AM 8: 55
OFVc E - r S-F.RiFF
CUMBERLAND COUNT`'
PENNSYLVANIA
PR Capital City Limited Partnership
vs. Case Number
Seven Hills Inc. 2008-458
SHERIFF'S RETURN OF SERVICE
10/28/2009 02:49 PM - Ronald Hoover, Deputy Sheriff, who being duly sworn according to law, states that on October
28, 2009 at 1449 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and
monies of the within named defendant, to wit: Seven Hills, Inc., c/o Mr. Raghu Tadavarthy, in the hands,
possession, or control of the within named garnishee, Fulton Bank, 1423 S Market Street, Mechanicsburg,
Cumberland County, Pennsylvania 17013, by handing to Adrienne Black, Teller, personally three copies o-
interrogatories together with three true and attested copies of the writ of execution and made the contents
there of known to her.
The writ of execution and notice to defendant was mailed on October 30, 2009 to Seven Hills Inc., c/o Mr.
Raghu Tadavarthy, 3900 Trindle Road, Ste 200, Camp Hill, PA 17011.
01/19/2011 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is
returned STAYED, per request from plaintiff's attorney.
SHERIFF COST: $737.03 SO ANSWERS,
January 19, 2011 RON R ANDERSON, SHERIFF
ron R. La
a.oa f? -60.
W#q"%a 0/
or, ,-,s39/3
c; CourtySwte Shertf. Teiecsoit. h^r,.
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
N008-458 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP
Plaintiff (s)
From SEVEN HILLS, INC. C/O MR. RAGHU TADAVARTHY, 3900 TRINDLE ROAD SUITE
200, CAMP HILL, PA 17011
(1) You are directed to levy upon the property of the defendant (s)and to sell AS A LIS PENDENS
AGAINST THE REAL PROPERTY OF THE DEFENDANT.
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of FULTON BANK, 1423 S. MARKET STREET, MECHANICSBURG 17055
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $734,573.81 L.L.
Interest FROM MARCH 20, 2008 AT 6% - $69,190.81
Atty's Comm % Due Prothy $2.00
Atty Paid $273.09 Other Costs
Plaintiff Paid
Date: 10/19/2009
Curtis R. Long, Prothonotary
(Seal) By. J f 4
Deputy 77
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, ESQ.
Address: ONE OXFORD CENTER, 35TH FLOOR
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: (412) 471-3490
Supreme Court ID No. 81131