HomeMy WebLinkAbout08-1438IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
ROCK N MOO, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY,
and COLISEUM ENTERTAINMENT
GROUP, INC.
Defendant.
CIVIL DIVISION
No. 08- IIf3a Civil Iem
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of
which is attached to the Complaint filed in this action, I, Darlene M. Nowak, Esq., appear for the
Defendants and confess judgment in favor of Plaintiff and against Defendants jointly and
severally for money as follows:
Amount due through 2/4/08 $ 15,206.93
Attorneys' fees for enforcement and collection (5%) $ 760.34
provided under § 16.02 of the Lease
TOTAL $15,967.27
."Aay/ gl?
Dated: February g,'2008
ttorn or Defendants
Capital City Mall
Maggie Moo's/Coliseum
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 in Confession of Judgment and that averments of
fact contained in such Complaint are true and correct to the best of my knowledge, information
and belief.
Dated: Fe). .2-y , 2008 By: (,4L-ttXA CA
Debra Lambert
Vice President - Legal
PREIT SERVICES, LLC
Agent for PR CAPITAL CITY LIMITED
PARTNERSHIP
I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
ROCK N MOO, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY
and COLISEUM ENTERTAINMENT
GROUP, INC.
Defendants.
CIVIL DIVISION
No. 08 - aiVi t Tarv,
COMPLAINT IN CONFESSION OF
JUDGMENT FOR MONEY
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa. I.D. No. 43523
Darlene M. Nowak
PA ID No. 37093
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
A
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
ROCK N MOO, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY,
and COLISEUM ENTERTAINMENT
GROUP, INC.
Defendants.
CIVIL DIVISION
No.
COMPLAINT IN CONFESSION OF JUDGMENT
FOR MONEY
1. Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited
partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the Capital City
Mall in Camp Hill, Pennsylvania.
2. Defendant ROCK N MOO, INC. ("Tenant") is a corporation doing business in
Pennsylvania. Defendant's address for service and notice is c/o Coliseum Entertainment Group,
Inc., 518 Katrina Court, Mechanicsburg PA 17050, attention Patrick Myers.
3. Tenant trades under the name of Maggie Moo's Ice Cream and Treatery.
4. Defendant Coliseum Entertainment Group, Inc., is a Pennsylvania corporation
having an address at 518 Katrina Court, Mechanicsburg PA 17050.
A
On or about October 26, 2006, Plaintiff ("Landlord") entered into a Lease
("Lease") of real property with Tenant for the use and possession premises known as Room 218-
B in the Capital City Mall, Camp Hill, Pennsylvania. The original instrument evidencing the
obligation on which judgment is herein confessed, or a photostatic copy or like reproduction
showing the signatures of Defendant which is a true and correct reproduction of the original, is
attached hereto and marked as Exhibit 1, and is incorporated herein by reference.
6. Under Article 16.01 of the Lease, an Event of Default occurs if the Tenant fails to
pay rent when due and that failure continues for ten days after the Landlord sends written notice
of the failure to the Tenant.
7. As of October 12, 2007, Tenant had failed to pay as due rent, utilities, taxes and
other charges due under the Lease in the amount of $9,689.71.
8. Landlord sent notice of this failure to pay on October 12, 2007. Exhibit 2. More
than ten days have passed and the Tenant has not paid the past due amounts. To the contrary, the
Tenant has failed to pay other amounts owing as they came due, and the amount due and owing
as of February 4, 2008 is $15,206.93.
9. Under Section 16.02(b) of the Lease, Tenant authorizes any attorney of record to
confess judgment against it for amounts then owing in the event of a default. As stated above,
an Event of Default has occurred.
10. In Exhibit B to the Lease, Coliseum Entertainment Group Inc. ("Guarantor")
guaranteed the performance of all Lease obligations by the Tenant. Under paragraph 6 of
Exhibit B, should the Tenant be in default under the Lease, Guarantor authorizes any attorney of
record to confess judgment against it for any amounts owed by Tenant.
11. This Lease has not been assigned.
12. Plaintiff avers that judgment on the Lease is not being entered by confession
against a natural person in connection with a consumer credit transaction. The underlying Lease
of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial
transaction.
13. Judgment has not been entered on the Lease in this or any other jurisdiction.
14. The itemization of the amount presently due under the Lease and without waiver
of future damages is as follows:
Amount due through 2/4/08 $ 15,206.93
Attorneys' fees for enforcement and collection (5%) $ 760.34
provided under § 16.02 of the Lease
TOTAL $15,967.27
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendants jointly and severally in the total sum of
$15,967.27 plus costs, attorneys' fees and interest at the Lease rate from and after the date of the
Entry of Judgment as provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: February , 2008
4" 4?d
ephe . Zubrow
Darlene M. Nowak
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,
V.
ROCK N MOO, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY,
and COLISEUM ENTERTAINMENT
GROUP, INC.
Defendant.
CIVIL DIVISION
No. m - 1436 0'i of Berl' %
NOTICE OF ENTRY OF CONFESSED JUDGMENT
FOR MONEY
TO: ROCK N MOO, INC. trading as MAGGIE MOO'S ICE CREAM AND TREATERY,
and COLISEUM ENTERTAINMENT GROUP, INC.
Please take notice that a judgment for money in the amount of $ 15,967.27 has been entered
against you by confession on the date below in favor of the Plaintiff.
Date: 0
Proth notary, Cou mmon
Pleas of Cumbe and Co my
Exk,b(4-
SCANNED
D C?4
LEASE AGREEMENT
BY AND BETWEEN
PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord
and
ROCK N MOO, INC., as Tenant
TRADE NAME: MAGGIE MOO'S ICE CREAM & TREATERY
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDiorjc r
FUNDAMENTAL LEASE PROVISIONS
This Lease is executed and made as of Nj,p, C , 2006, by and between PR CAPITAL CITY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership (herein called "Landlord") and ROCK N MOO, INC., a
Pennsylvania corporation (herein called "Tenant"), Landlord and Tenant having the following notice addresses:
Landlord:
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
c/o PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
Attn: General Counsel
Tenant:
c/o Coliseum Entertainment Group, Inc.
518 Katrina Court
Mechanicsburg, PA 17050
Attn: Patrick Myers
PR CAPITAL CITY LIMITED PARTNERSHIP
Management Office
3506 Capital City Mall Drive
Camp Hill, PA 17011
Attn: General Manager
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 refere
d
nce
Sections and elsewhere in this Lease ,
:
(a) Tenant's Trade Name:
Maggie Moo's Ice Cream & Treate
(b) ry
Rent Term: One Hundred Twenty (120) months commencin
ex
on th
i
R (See Sec. 7.01)
g
p
e
ent Commencement D
res on the last day of the one hundred twentieth (120"') month following the Rent Comm
"Expiration Date") ate. The Rent Term
. encement Date (the
(c)
Tenant Store Number: 218-g (See Sec. 3.01)
(d)
GLA of Premises: 595 square feet (See Exh. A)
(e)
Design Drawings Submission Date: October 31, 2006 (See Sec. 1.04)
(f) Tenant's "Construction Commencement Date":
November 30, 2006
& "Construction Period" (See Sec. 2.03)
: Sixty (60) days (See Sec. 2.03)
(9)
Minimum Rent: (See Sec. 2.03)
Time Period Annual Amount
-------- Monthly Amount
Rent Commencement Date
through the 36th month
$40
000
00
,
.
$3,333.33
From the 37th month
through the 84th month $42
000
00
,
.
$3,500.00
From the 85th month
through the end of the Term $44
000
00
(h) ,
.
$3,666.67
Percentage Rent: (See Sec. 4.03)
Lima Period Break Polnt
The Rent Commencement Date
through the 36th month $500
000
00
,
.
Eight Percent (8%)
From the 37th month
through the 84th month
$525
000
00
,
.
Eight Percent (8%)
From the 85"' month
through the end of the Term
$550
000
00
(i) ,
.
Eight Percent (8%)
Required Opening Date: (See Sec. 4.04)
February 1, 2007
G) Security Deposit: N/A (See Sec. 4.02)
(See Sec. 2.02)
MaggieMoo's-CapitatCity-Final
September 22, 2006 1 DiDio/jcr
2
FUNDAMENTAL LEASE PROVISIONS (CONT'D)
(k) Marketing Service Charge: $1.50 per square foot of the GLA of the Premises per Year
Minimum Advertising Char
e: NIA (See Sec. 9.01)
g (See Sec. 9.02)
(1) Certain Other Charges Payable by Tenant:
Tax Charge
Services Charges (See Sec. 5.01)
Refuse Handling Charge (See Sec. 6.01)
CAM Charge (See Sec. 6.03)
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 92406
Cleveland, OH 44193
(n) Use: An ice cream store selling hand dipped ice cream and (i) other treats including but not limited to milk
shakes, sundaes, smoothies, frozen desserts, sorbet, confections, beverages, ice cream cakes, bakery items, candy and
other food items and (ii) incidental thereto t-shirts, hats, caps; and other apparel, dolls, toys, coffee mugs, glasses and
other accessories approved for sale in "Maggie Moo's" ice cream stores, and for no other purposes whatsoever.
Notwithstanding the foregoing, incidental to the Use, Tenant may also (i) sell gift cards for use at The Coliseum, an
entertainment facility located at St. John's Church Road, Camp Hill, PA (the "Coliseum"), and (ii) provide Tenant's
customers with literature for the Coliseum, subject to Landlord's reasonable approval, promoting the Coliseum.
(See Sec. 7.01)
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDiolcx
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 "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' Premises" (or' Majors Premises") 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 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 "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 comer 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 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
MaggieMods-CapitalCity-Final
September 22, 2006 1 DiDiofjcr
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
charges to Tenant.
0) 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. For so long as the occupied GLA of Landlord's Building is below eighty-five percent (85%) of the GLA of Landlord's
Building (after first subtracting the GLA of any Junior Majors), Tenant's GLA Fraction shall be calculated as though eighty-
five percent (85%) of the GLA of Landlord's Building (after first subtracting the GLA of any Junior Majors) were occupied.
(k) The term "Junior Major(s) Premises" means either of the following, (not herein identified as or otherwise
hereunder constituting a "Major"): (i) any so called "out parcel" or any premises that does not have direct customer store
frontage and/or customer entry to the Enclosed Mall or (ii) any premises which contains in excess of 15,000 square feet of
GLA in the Shopping Center.
(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 Guarantee of Lease (the "Guarantee").
EXHIBIT C Completion Certificate.
Section 1.04: TENANT'S STOREFRONT.
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.
In exercising its rights hereunder, Landlord agrees to use reasonable efforts not to materially adversely affect access to,
or visibility of, 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" ). Landlord
warrants that the REA neither diminishes Tenant's rights nor increases Tenant's obligations and/or liabilities under this
Lease.
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.
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 tums 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
MaggieMoo's-CapitalCity-Final
September 22, 2006 \ DiDiorycr
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, and the payment date of all Minimum Rent and all
other sums due hereunder, for a period equal to the number of days between the Construction Commencement Date
specified herein and the date such former tenant vacates; provided that if physical possession of the Premises is not
available by a date which is sixty (60) days from the Construction Commencement Date, at either Landlord's or Tenant's
option, this Lease shall be null and void and neither party shall have any liability hereunder to the other.
Work"): Landlord shall provide, at Landlord's expense the following work in the Premises (hereinafter "Landlord's
(1) Landlord will provide awnings where applicable per Landlord's building plans and specifications as
approved by the City of Camp Hill.
(2) Provide (1) electrical sign outlet for signs not located on awnings as designated per Landlord's Building
plans and specifications.
Tenant shall perform all other work required to be performed by Tenant to fully and completely remodel the
Premises and to adapt the same for Tenants 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 insurance and other
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 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. Tenant's Work shall
include within the following minimum work to the entire Premises:
1. Install new wall treatments and finishes.
2. Install new floor treatments and finishes.
3. Install new ceiling treatments and finishes.
4. Install new lighting systems.
5. Reuse electrical systems.
6. Reuse plumbing system.
7. Reuse HVAC system including new rooftop unit.
8. Reuse sprinkler and fire protection systems.
9. Install new storefront construction and finishes with display window (s).
10. Install new internally illuminated storefront.
11. Install new gas if necessary.
store. will complete the interior renovation of the premises to the design specifications of a Maggie Moo's retail
(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 Tenants Work and specifically including a colored rendering of the proposed
storefront and signing, sample materials to be used in the Premises and sign, photograph of fixtures to be used and the
interior layout of the Premises. The Design Drawings shall be prepared in accordance with the Store Design Criteria.
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 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". 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 Tenants 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. Tenants 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 Tenants 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.
MaggisMoo's-CapitalCity-Final
September 22, 2006 \ DiDiarjcr
(d) Together with Tenant's submission of its Design Drawings and together with any other plans submitted by
Tenant relating to any other work in the Premises which Tenant desires or is required to perform, Tenant shall pay Agent
on each occasion the sum of Two Hundred Fifty and 00/100 Dollars ($250.00) to defray the cost of reviewing Tenant's
Design Drawings and Final Plans.
(e) On or before the Construction Commencement Date, Tenant shall deposit with Landlord certificates of
insurance as required in Article 11 and the Store Design Criteria, as well as 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 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
sufficient time to enable Landlord to post, file and record such notices. The provisions of this Section 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 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, One Hundred and no/100 Dollars ($100.00) per day 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 Tenants 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 fumished 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 twenty (20) 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 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 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 'Tenn") means the period of the "Interim Tenn" (hereafter
defined) followed immediately by the period of the "Rent Tenn" (hereinafter defined). The "Interim Tenn" means the
period commencing on the date of this Lease and ending on the date immediately preceding the Rent Commencement
Date. The "Rent Tenn" means the period commencing on the Rent Commencement Date and ending on the Expiration
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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 Term, 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: TENANTS 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.
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 ten percent (10%) 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 ten percent (10%).
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 Date") 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
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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 sixty-five (365), plus (2) the latter Break Point
multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the 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, including but not limited to gift cards for use at the Coliseum Entertainment facility, 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
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; and
(vi) gift cards unless redeemed at the Premises.
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 (i) the amount of Gross Sales during such month, (ii) 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 (iv) 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
required to be so paid, then Tenant shall forthwith pay such difference. In no event, however, shall the sum of the
Minimum Rent and Percentage Rent to be paid by Tenant and retained by Landlord under the terms of 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 delivered 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. If Tenant shall fail to deliver any Monthly Report and/or Yearly Report when due, and such failure shall continue
thirty (30) days after written notice from Landlord, then, in addition to all of Landlord's other rights and remedies hereunder,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day for each day
such statement is overdue.
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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 conducted 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.
(b) The acceptance by the Landlord of payments of Percentage Rent shall be without prejudice to the
Landlord's examination and audit rights hereunder. Landlord may at any reasonable time, upon ten (10) days' prior written
notice to Tenant, cause a complete audit to be made of Tenant's entire books, records and other materials which Tenant is
required to retain (including the books and records of any subtenant, licensee, concessionaire and other occupant) for all
or any part of the three (3) year period immediately preceding the day of the giving of such 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 two percent (2%) 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 ten (10) 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 ten percent (10%) of the greater of (i) 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 occupant 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 seven (7) 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, 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 Tenant pays any installment of
Rent by check and such check is returned for insufficient funds or other reasons not the fault of Landlord, then Tenant
shall pay Landlord, on demand, a processing fee of One Hundred Dollars ($100.00) per returned check plus all applicable
Late Charges and if three (3) checks are returned for insufficient funds or other reasons not the fault of Landlord, all
subsequent payments to Landlord by Tenant shall be in the form of either a certified or cashier's check.
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ARTICLE 5: TAXES AND ASSESSMENTS
Section 5.01: 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.
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 end 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
beginning of each ensuing calendar month during the Term. In addition to the payments 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 (i) 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 Tenants share,
Tenant shall forthwith pay Landlord the difference.
Section 5.03: TENANT'S 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 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 (i) 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.
(a) During the Term, Tenant shall be solely responsible for and promptly pay all charges for heat, water ,
electricity any other , sewer rents or charges, sprinkler charges, AD.T. or other alarm system, water treatment facility charges, and
utility used or consumed in the Premises or in providing heating and air conditioning to the Premises together
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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 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, if installed, and Tenant agrees to pay monthly, the sum of Fifty and 00/100 ($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
or sewerage connection or system. Such charges shall be based on metered readings or other formula specified by
Landlord.
(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.
(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 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 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 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 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
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September 22, 2006 % DiDiofjcr
12
keep the Premises open for business to the public at least: (a) every Monday through Saturday from 10:00 a.m. until 9:30
p.m.; and (b) also on Sunday from 11:00 a.m. until 7:00 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 the majority 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.
Section 7.03: OPERATIONAL REQUIREMENTS.
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 illegal 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) 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;
(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 burn or permit undue accumulation of
garbage, trash, rubbish and other refuse; will (subject to Section 6.03) 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;
0) will also comply with and observe all rules and regulations established by Landlord from time to time in
accordance with Section 8.05;
G) 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; will outside of) the Prem essforothe d splay oe sale or offering for sale of any merchandise or for any other iness,
ace
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;
MaggieMoo's-CapitalCity-Final
September 22, 2006 \ DiDiolcr
13
(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 in a commercially reasonable manner in order to maximize Gross Sales;
(0) will within ninety (90) days before or after the fifth (5th) anniversary of the Rent Commencement Date at
Tenant's sole cost and expense remodel the Premises. Such remodeling shall include refinishing, renewing and/or
replacing the floor coverings, wall coverings, lighting, ceiling, fixtures, furnishings, equipment and other trade fixtures at the
Premises and, in Landlord's reasonable judgment, all other work necessary to put the Premises in a state of appearance
and condition conforming to Landlord's then current standards for retail tenants of Landlord's Building. All of the provisions
of this Lease which apply to Tenant's Work including, without limitation, those for Final Plans and Completion Certificate,
shall apply to the remodeling;
(p) 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 if, 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 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: TENANT'S 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. 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 7.06 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 Ten Dollars ($10.00) per day per violating vehicle.
For any subsequent violations, said Ten Dollars ($10.00) per day per violating vehicle charge shall 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.
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September 22, 2006 1 DiDiofjcr
14
Section 7.07: NON-COMPETITION COVENANT.
Tenant covenants and agrees with Landlord that through the Term, neither Tenant or any "Affiliate of Tenant"
(hereinafter defined) shall directly or indirectly own, operate or manage or have a financial interest in any business which is
similar to that of Tenant or which sells or displays, directly or indirectly, merchandise or other goods, or services, similar to
those sold or offered or displayed by Tenant at or from the Premises (the "Competing Store") within two (2) miles from
the property line of the Shopping Center nearest to the Competing Store (the foregoing covenant being hereinafter called
'Tenant's Non-Competition Covenant"). "Affiliate of Tenant" means a proprietorship, corporation, partnership,
unincorporated association or other person or entity "controlling", "controlled" by or under common "control" with Tenant.
The words "controlling", "controlled" and "control" shall have the meanings given them under the Securities Exchange
Act of 1934, as amended. If the Tenant's Non-Competition Covenant is violated, then, in addition to all other rights and
remedies, Landlord shall have the right to add the "gross receipts of the Competing Store" (hereinafter defined) to the
Gross Sales made by Tenant hereunder for the purpose of computing Percentage Rent. The phrase "gross receipts of
the Competing Store" shall be determined by applying the definition of Gross Sales at Section 4.05 to transactions of the
Competing Store. Tenant shall include the address and identity of its business at the Premises in all advertisements made
by Tenant in which the address and identity of any similar local business of Tenant is mentioned and shall not divert from
the Premises any transactions or other business which would occur at or from the Premises. Notwithstanding the
foregoing, the Coliseum is specifically excluded from Tenant's Non-Competition Covenant.
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 by
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
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. Landlord acknowledges that Tenant will request Landlord's prior written
consent to the placement of a sign or signs in the Premises advertising the Coliseum. Landlord agrees to review such sign
or signs and approve the same provided that such sign or signs, in Landlord's commercially reasonable business
judgment, neither detract from the Shopping Center nor the Fundamental Use of the Premises in accordance with the
provisions of this Lease.
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 Premises which
Landlord determines in Landlord's commercially reasonable business judgment to be in violation of the provisions of this
Section 7.08.
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 meeting 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) 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. In exercising its rights hereunder, Landlord agrees to use reasonable efforts not to materially
adversely affect access to, or visibility of, the Premises.
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 the
the Sh
enance t hepropriate
Center
repa
and
pp g
CommonnA eas andethenShopping Centero (and any add tions the eto),' n luding ewithout limitati on tmain he tc st a d
expenses of.,
0) 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
e removal
pest
control,
and repaving all parking surfaces, ,services areaand s a d otgher portions of the Comm on Areas;'ng' painting, sweeping, striping and
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDio/cx
15
(iii) operation and/or maintenance of all heating, ventilating and air cooling and other utility systems,
emergency water and sprinkler, security, life safety systems, 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;
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;
(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;
(xii) all costs, charges, and expenses incurred by Landlord in connection with any change of any
company providing electricity service, including, without limitation, maintenance, repair, installation, and service costs
associated therewith;
(xiii) all expenses incurred by Landlord at the same rate per unit Landlord charges to tenants, in
connection with refuse disposal, water and sewer, gas, steam, exterior site lighting, electricity, air conditioning, heating,
and other utilities, including, without limitation, any and all usage, service, hook-up, connection, availability and/or standby
fees or charges pertaining to same;
(xiv) Landlord's supervisory charge in an amount equal to fifteen percent (15%) of the total aggregate
cost of operating and maintaining the Common Areas, including but not limited to those things listed in Section 8.02(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:
(i) 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);
(iii) any utilities which are directly metered or submetered to tenants in Landlord's Building; and
(iv) expenses resulting solely from the negligence or willful misconduct of Landlord or of Landlord's
employees, agents or contractors.
(c) Notwithstanding anything contained in this Lease to the contrary, in calculating the "CAM Charge"
(defined in Section 8.03), the CAM Charge 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 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 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.
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. Landlord agrees that Tenant's
maximum payment of its CAM Charge for the second twelve (12) month Year shall not exceed the first such Year's
payment 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
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DlDiofjcr
16
the foregoing calculation, Common Area Costs relating to utilities, insurance, snow removal and security shall be excluded
from the aforesaid limitation, and Tenant shall continue to pay Tenant's 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 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 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, relocation, enlargement, reduction or addition of driveways, entrances, exits, automobile parking spaces,
employee and customer parking areas (if any), the direction and flow of traffic, installation of landscaped areas, and any
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 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 multi-level
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. In exercising its rights hereunder,
Landlord agrees to use reasonable efforts not to materially adversely affect access to, or visibility of, the Premises.
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
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 agrees to maintain and operate, or cause to be maintained and operated, the Common Areas in good
and reasonable condition and manner. Landlord shall, as between Landlord and Tenant, at all times during the Term have
the sole and exclusive control, management and direction of the ommon 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 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 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
the Shopping Center. Landlord has established or will establish a fund (the "Marketing Service Fund") to be used by
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Landlord to pay all costs and expenses associated with the formulation and carr ying out of an ongoing program for the
advertising and other promotion of the Shopping Center. The program may include, without limitation, special events,
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 the base calendar year [as defined in Section 9.03 (a) set forth hereinbelow]
of the term of the Lease, 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 (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
that Landlord will, on and after a certain date hereafter, no longer provide the Marketing Service. Landlord may cease
performing he Marketing Service on the date so specified by the Landlord, provided that nothing herein shall require
Landlord to breach or fail 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 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) or 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.
(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 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,
the Marketing Service, the rental therefor to be comparable to within the rental for t similarly l sized commercial space;ry to carry out
limitation radio, newspaper, television, direct and indirect costs of services, art work, copy, ri Center, including without
supplies; and printing, paper, stationery 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.
(e) Deleted.
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(f) Landlord agrees that Tenant's maximum payment toward the Marketing Service Charge and the Minimum
Advertising Charge for the second twelve (12) month Year shall not exceed the first such Year's payment of each such
charge plus three percent (3%) of each such payment; and further, that any subsequent Year's payment shall not exceed
the immediately preceding Year's payment for each charge plus three percent (3%) of each such payment.
Section 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION.
In the event there presently exists a merchants 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
during the Term (herein sometimes collectively called "Construction Work') without Landlord's prior written consent. 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 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 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: 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.
Premises and TO
use thereof against General caLiability ims for Insurance. Commercial "personal and adertisingen?reu Iy" and liability "bodily injury" covering the
g ' ury" 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 Premises and to Tenants 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 Tenants 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.
(iii) Tenant Leasehold Improvements and Property. Insurance covering all of the items included in
Tenants 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 Premises, and alterations, additions or changes made by Tenant pursuant to Article
10, in an amount not less 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 Tenants 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.
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Section 11.03: INDEMNIFICATION.
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 (a) any occurrence in, or about the Premises, and/or (b) Tenant's activities in the Common Areas, and/or (c) arising
out of the construction, use, occupancy or enjoyment of the Premises, and/or (d) 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
further agrees that the obligation to defend Landlord and Agent continues regardless of allegations of negligence or other
fault on the part of Landlord or Agent until such negligence or fault has been established in a final adjudication. Tenant
shall not, however, be liable for damage or injury occasioned by the willful act 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. Tenant's
obligations under the aforesaid indemnity shall not be limited to the amount of commercial general liability insurance
coverage which Tenant is required to carry.
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, but, in each case, only to the extent
the claim, action or demand arises 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 act or omission of the
Tenant which is the cause of damage or injury.
Section 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 to the other
portions of Landlord's 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, 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 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 11.06, Landlord may, without notice to Tenant, 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 11.06, even if 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 11.06).
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 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 willful acts or
negligent omissions, except to the extent the same are waived or released by Tenant pursuant to Sections 11.03 or 11.04.
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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), 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 ceiling 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 cant' 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 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 worts 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 in, through, under or above the Premises 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
purchasers, mortgagees and tenants. 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, 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 property 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 property of Landlord,
without further act by either party hereto, unless Landlord elects to require all or a portion of such items to be removed by
Tenant in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior
condition at Tenant's expense.
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3. The agreements shall be consistent with the terms hereof and shall not grant to the sublessee any
rights not afforded to Tenant by this Lease, and in the event of a conflict between the terms, covenants and
conditions contained in this Lease and those contained in the agreements, the terms of this Lease shall prevail;
and
4. If in Landlord's opinion the sublessee operating the Premises is doing so in a manner not
consistent with the quality of other stores in the Shopping Center, within twenty (20) days after Landlord's request,
Tenant shall have the ability to and will cancel the agreements and either immediately recommence business in
the Premises as a company operation or will obtain another sublessee in accordance herewith; and
5. In no event will Landlord be obligated to (a) give any notice to or join such sublessee in any
proceeding Landlord institutes against Tenant in the event Tenant defaults under this Lease, and (b) the
agreements will by their own terms automatically terminate upon the expiration or sooner termination of this
Lease.
ARTICLE 16: DEFAULTS BY TENANT
Section 16.01: EVENTS OF DEFAULT.
This Lease is made upon the 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
stated in this Lease as Events of Default, the following shall be deemed to be an Event of Default (each of which is
sometimes referred to as an "Event of Default" in this Lease):
(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); 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
(e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner
which is outside the ordinary course of Tenant's business; or
(f) the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7
hereof; or
(9) 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
W 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
(1) 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.
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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
all other rights or remedies of Landlord in this Lease or at law or in equity provided, Landlord shall have the following rights
and remedies if there shall occur any Event of Default none of which shall be construed as an election to forego any of the
other remedies then or in the future:
(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
(ill) to bring suit for the collection of Rent and for damages without entering into possession of the
Premises or terminating this Lease; and/or
(iv) to terminate Tenant's right of possession of the Premises by summary proceedings or otherwise,
without terminating this Lease. In the event of any re-entry and termination of possession, Landlord shall have the right
but not the obligation to remove any personal property from the Premises and either 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
cases all costs, officers' commissions and other charges shall immediately attache and becometpart of thedclaim 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) Confesslon of Judament Rent Tenant covenants and agrees that if there is an Event of Default, then
Landlord may, without limitation, cause judgments for money to be entered against Tenant and, for those purposes,
Tenant hereby grants the following warrant of attorney: (i) Tenant hereby irrevocably authorizes and empowers any
prothonotary, clerk of court, attorney of any court of record and/or Landlord (as well as someone acting for Landlord) in any
and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be paid to Landlord by Tenant
to appear for Tenant, and assess damages and confess or otherwise enter judgment against Tenant, for all or any part of
the Rent and/or other amounts to be paid to Landlord by Tenant including, without limitation, sums under Section 16.02(a),
together with interest, costs and an attorneys' commission of five percent (5%) of the full amount of such Rent, amounts
and sums, and thereupon writs of execution as well as attachment may forthwith issue and be served, without any prior
notice, writ or proceeding whatsoever except as may otherwise be required by applicable law; (ii) the warrant of attorney
herein granted shall not be exhausted by one or more exercises thereof but successive actions may be commenced and
successive judgments may be confessed or otherwise entered against Tenant from time to time as often as any of the
Rent and/or other amounts and sums shall fall or be due or be in arrears, and this warrant of attorney may be exercised
after the termination or expiration of the Term and/or during or after any extensions of the Term or renewals of this Lease;
and (iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto.
(c) Confession of Judament - Possession Tenant covenants and agrees that if there is an Event of
Default or this Lease is terminated or the Term or any extensions or renewals thereof is terminated or the Term or any
extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section
16.02(b), Landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered
against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (i) Tenant hereby
irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as
well as someone acting for Landlord) in any and all actions commenced for recovery of possession of the Premises to
appear for Tenant and confess or otherwise enter judgment in ejectment for possession of the Premises against Tenant
and all persons claiming directly or indirectly by, through or under Tenant, and thereupon writ of possession may forthwith
issue and be served, without any prior notice, writ or proceeding whatsoever except as may otherwise be required by
applicable law; (ii) if, for any reason after the foregoing action or actions shall have been commenced, it shall be
determined that possession of the Premises should remain in or be restored to Tenant, Landlord shall have the right to
commence one or more further actions as hereinbefore set forth to recover possession of the Premises including, without
limitation, appearing for Tenant and confessing or otherwise entering judgment for possession of the Premises as
hereinbefore set forth; and (iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto.
(d) In any action or proceeding described in Section 16.02(b) and/or Section 16.02(c), or in connection
therewith, if a copy of this Lease is therein verified by Landlord or someone acting for Landlord to be a true and correct
copy of this Lease (and such copy shall be conclusively presumed to be true and correct by virtue of such verification),
then it shall not be necessary to file the original of this Lease, any statute, rule of court of law, custom or practice to the
contrary notwithstanding. Tenant hereby releases to Landlord, anyone acting for Landlord and all attorneys who may
appear for Tenant all errors in procedure regarding the entry of judgment or judgments by confession or otherwise by
virtue of the warrants of attorney contained in this Lease, and all liability therefor. The right to enterjudgment orjudgments
by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce all of the other
provisions of this Lease may be exercised by any assignee of Landlord's right, title and interest in this Lease in such
assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding.
(e) Tenant expressly waives:
(i) 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.
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(iii) 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. The
Prothonotary or Clerk of Court is hereby authorized and empowered by Tenant at Landlord's instance to enter a writ of
execution or other process upon Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of
execution or other process.
(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
circumstances, or any other notice required or otherwise provided by statute as a )cond condition to the comdme cementaof
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.
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 relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
terms and conditions as Landlord shall 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 expenses
as Landlord may have incurred in recovering possession of the Premises (including, without limitation, legal expenses and
attorneys' fees) and for putting the Premises into good order and condition and repairing or remodeling or altering the
same or 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 Reletting"), and of the covenants of Tenant under this Lease. Tenant shall pay to Landlord the Rent up to the time of u such to the termination leof
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
unless a notice of such intention is given by Landlord to Tenant. Notwithstanding any reletting wthoutterminate
toterminationthiso Lfeasethis
Lease, Landlord may at any time thereafter elect to terminate this Lease. In any event, Landlord shall not be liable for, nor
shall Tenants obligations hereunder be diminished by reason of any failure by Landlord to relet the Premises or any failure
by Landlord to collect any sums due upon such reletting. 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 time
, and no suit or subsequrent action' b ought for any amount of thereto ore educed to judgment in favor hereunder of Landlord. be a defense to any Landlord
elects
termin
Lease
terminat
Tenant Landlord shall have the ght to mmed a thiscover aga nst'Tenant as d magelsforr loss of the ba ain, and n
right possession, as a
penalty, the excess (if any), as determined by Landlord, of (i) 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
would have accrued for the balance of the Term plus any other amount necessary to compensate Lando undedforthall
detriments proximately caused by Tenant's failure to perform its obligations under this Lease, including reasonable
attorney's fees and interest on all sums due Landlord at the Default Rate (hereafter defined), less (ii) 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 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.
(c) The "Default Rate" means the rate of interest which is three percent of PNC Bank, Philadelphia, Pennsylvania or any successor thereto or other bank el ted by Landlord.
prime rate
(d) In the event Landlord retakes possession of the Premises after an Event of Default has occurred,
Landlord agrees to use reasonable efforts to relet the Premises. It is understood and agreed, however, that Landlord shall
not be required to relet the Premises to a replacement tenant with less merchandising expertise or financial stability as
Tenant at the time of execution of this Lease or for any use other than the permitted use herein.
Section 16.04: LANDLORD'S SELF-HELP.
In addition to Landlord's rights to self-help set orth elsewhere in this Lease, if Tenant at any time fails to perform
any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but
not the obligation, upon giving Tenant at least ten (10) 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, orthwith, 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 or violation of or
to enforce any of the covenants or conditions of this Lease, or should Tenant insttute any action against Landlord for
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C
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
reasonta
its interests or rights ble fees to its attorneh se therlewi thaw in any such suit shall be entitled to all its costs, expenses and
y(s) ) in n connection
(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,
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 (i) an obligation of Tenant hereunder, and (ii) 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 (30) days after written notice
thereof from Tenant to Landlord (unless such failure cannot reasonably be curd within thirty (30) days and Landlord shall
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, 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 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, thiy s orLeaseallis, and shall always be, subject and subordinate to
any lease wherein Landlord is the lessee and to the lien of an 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 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 mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of sprior lien to the lease,
of trust.
aid (lease, ortgagei or ded
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 attom to and recognize the purchaser
or Landlord's lessor as Landlord under 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
whatever
nstru
s and the vent Te ant fails Ito do so within fifteen (15) days after demandein writing, ceT ne antout s al bintent of e deemed this to have 18, and in
an Event of Default, committed
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 the 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 prior landlord (including Landlord), bound by any
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amendment or modification of the Lease or an other agreement concerning the Lease made without mortgagee's written
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: TENANT'S 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 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.
In the event that Tenant fails to provide a Tenant's Estoppel Certificate within twenty (20) days after Landlord's
written request therefor, Tenant shall be deemed to have committed an Event of Default.
ARTICLE 20: QUIET ENJOYMENT
Section 20.01: FAITHFUL PERFORMANCE.
Upon payment by the Tenant of the Rent herein provided for, and upon the observance and performance of all of
the agreements, 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 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 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 possession of the Premises or any part thereof, after any
expiration or termination of this Lease, no tenancy or interest in the Premises shall result therefrom but such holding over
shall be an unlawful detainer and all such parties shall be subject to immediate ouster and removal, and (a) Tenant shall
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 Rent and Additional Rent provided for in this
Lease plus an amount computed at the rate of double 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 the foregoing, any claims made by any succeeding tenant based on such
holding over.
ARTICLE 22: CONDEMNATION
Section 22.01: ALL OF PREMISES TAKEN.
If the whole of the Premises shall be taken or condemned either permanently or temporarily for any public or
quasi-public 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%) 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
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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 by such Condemnation. If
Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning 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 may have been paid in advance for a period subsequent to such possession.
Section 22.04: OWNERSHIP OF AWARD.
As between Landlord and Tenant, all damages for any Condemnation of all or any partof 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. 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 Tenant's merchandise, furniture and fixtures, provided such
compensation does not in any way diminish the compensation otherwise available to Landlord.
ARTICLE 23: MISCELLANEOUS
Section 23.01: INTERPRETATION.
(a) The captions, table of contents and index of defined terms appearing in this Lease are inserted only as a
matter of convenience and in no way amplify, define, limit, construe, or describe the scope or intent of such Sections of
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 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, 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 contained shall be deemed or construed by the parties hereto, or by any third party, as creating the
relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and
agreed that neither the method of computation of Percentage Rent, nor any other provision 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 (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 property 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.
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September 22, 2006 1 DiDiorcr
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Section 23.04: SUCCESSORS.
,
-IN
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, 7.03, 8.03,
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 arise 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 ten (10) 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 Term. 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
shall determine in the exercise of its sole business judgment. Tenant hereby acknowledges that (i) this Lease contains no
restrictive covenants or exclusives in favor of Tenant; (ii) this Lease shall not be deemed or interpreted to contain, by
implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or
regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any
premises in or adjoining the Shopping Center during the Term 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.
(b) During the Term or any renewals or extension thereof, Landlord may expand, renovate, remerchandise or
otherwise change the size or configuration of the Shopping Center or Landlord's Building and in connection therewith
Landlord may require that Tenant surrender possession of all or a portion of the Premises either temporarily or
permanently. Accordingly, Landlord reserves the right in such event, in Landlord's sole and absolute discretion, to either (i)
offer to amend this Lease to (a) make changes resulting from any alteration in Tenant's GLA resulting from an alteration in
the size or shape of the Premises and/or (b) relocate Tenant to other comparable premises within the Shopping Center on
the same terms and conditions as those contained in this Lease, either on a temporary basis or for the balance of the
Term, or (ii) terminate this Lease in exchange for paying Tenant an amount equal to the unamortized net cost to Tenant of
its leasehold improvements in the Premises, which unamortized net cost shall be calculated using a straight line
amortization schedule and an amortization period equal to the Rent Term plus any previously exercised renewal options
afforded by this Lease. Landlord shall exercise its right set forth in this Section upon prior written notice to Tenant
("Landlord's Notice") which shall specify whether Landlord elects to amend this Lease and if so, include the proposed
lease amendment or to terminate the same. Tenant shall deliver to Landlord within ten (10) days after Landlord's Notice
indicating Landlord's desire to terminate this Lease, reasonably detailed evidence substantiating Tenant's unamortized net
ept9ember 22, 0061
S % D D olcx
31
cost of its leasehold improvements to the Premises and Landlordinatte shallwhave the right to verify the accuracy thereof.
Landlord reserves the right to rescind Landlord's Notice of mion ithin ten (10) days after receipt of Tenant's
evidence substantiating Tenant's unamortized net cost of its leasehold improvements to the Premises and may in lieu of
terminating the same, elect to relocate Tenant to other comparable Premises in accordance with the provisions of (b)
above. Any proposed amendment to the Lease shall afford Tenant at least sixty (60) days after the date of Landlord's
Notice before Tenant shall be required to surrender possession of any portion of the and/or relocate. the
event Landlord elects to terminate this Lease, such notice shall provide that such terminationPremises
shall not be effectivelfor at
least sixty (60) days after the date of Tenant's receipt of Landlord's Notice. In the event Tenant desires to execute such
amendment, it shall do so within fifteen (15) days following its receipt of the same and if Tenant fails to do so, Landlord
shall have the further right at any time thereafter to terminate this Lease in accordance with the provisions of (ii) above.
Tenant shall vacate the Premises and surrender possession thereof to Landlord not later than the date specified in
Landlord's Notice and in accordance with the terms of this Lease. Landlord will pay Tenant its unamortized net cost of
Tenant's leasehold improvements to the Premises within ten (10) days after Tenant vacates the Premises. Tenant agrees
that the execution of the lease amendment or its receipt of the payment of the consideration for the lease termination in
accordance with (ii) above shall be Tenant's sole remedy in the event Tenant is required to surrender possession of the
Premises as provided in this Section.
Landlord agrees that all alterations to the Premises necessitated by the expansion, renovation or other change to
o
the Shopping Center referred to in this Section will be performed by Landlord at its sole cost and expense including,
Tenant elects to execute the lease amendment referred to above which provides for a permanent relocation of the
Premises, the construction of improvements to any relocated premises designated by Landlord such that such relocated
premises will be comparable in finish to the Premises demised hereby as they existed immediately prior to Tenant's
vacating the same. In the event Tenant is required to temporarily relocate, Tenant shall accept the relocated premises "as
is" and Landlord shall not be required to perform any work therein. In addition, Landlord will reimburse Tenant for its
reasonable and substantiated expenses incurred in moving from the Premises originally demised hereby to the relocated
premises (and returning to the original Premises, if applicable) which reimbursement shall be made within forty-five (45)
days following Tenant's submission of Tenant's documented expenses. In the event Tenant is required to only surrender a
portion of the Premises to Landlord, but is able to operate in the remainder thereof, Rent shall abate on a proportionate
basis from the date Tenant surrenders to Landlord possession of the portion of the Premises so affected.
Section 23.10: APPLICABLE LAW.
The laws of the state in which Landlord's Building is located shall govem 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 "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) 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 said ninety (90) 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 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 Tenants 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
eports'df ngs is located; he d all ocuments Tenant's franchise, for rp ant to dother henable taxes have been paid to date; all future
MaggleMooforms, PIY with applicable laws will be filed by Tenant when
September 22, 2006 1 DiDiofjcr
32
due; and such persons are duly authorized by the governing body of such corporation to execute and deliver this
(including the warrant and/or power of attorney provisions contained in Section 16.02) on behalf of the corporation.
Section 23.14: TENANT'S GUARANTOR.
Lease
Attached hereto as "Exhibit B" is a guarantee of Lease executed by COLISEUM ENTERTAINMENT GROUP,
INC. ("Guarantor"). Tenant acknowledges that Landlord would not have executed this Lease with Tenant unless
Guarantor agreed to execute the Guarantee. Landlord and Tenant further agree that in the event Landlord, in its
reasonable judgment, determines that the credit worthiness, economic strength or financial status of Guarantor falls below
a level which Landlord then finds acceptable, or if Guarantor breaches or otherwise repudiates its obligations under Exhibit
B, or, if Guarantor is an individual, and Guarantor dies, or becomes incompetent, or any bankruptcy or other similar
procedure is filed by or against Guarantor and not dismissed within si
time and upon prior written demand to Tenant, require Tenant within th(irty) (30)s aysethereafternto deliver oaLandlord
alternative or additional security in a form and substance reasonably satisfactory to Landlord, so that Landlord will not be
deprived of adequate assurance of Tenant's financial ability to comply with its obligations imposed by Lease. In the event
Tenant fails to timely submit such alternative security in form and substance satisfactory to Landlord, such failure shall be
deemed an Event of Default.
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 23.16: AGENT OF LANDLORD. gent h
an a
ord in
conn be held liable to a the act La dlord orgto T nantfior the fulfill ent or with the
non-fulfillment of any this Lease and
of the terms or alcl not in onditions of event
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 materiar' 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
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 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,
dispose of products containing small quantities of hazardous materials (such aserosol ca sncontaining insecbcides, 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 (i) 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 tr 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.
MaggieMoo's-CapitalCity-Final
September 22, 2006 % DiDiolcr
33
(iii) Permit Landlord reasonable access to the Premises for the purpose of
conducting an environmental audit or testing, the cost of which shall be
bome 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. 40964, 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 Landlord, without cost or expense to Tenant, the applicable portions of any environmental impact survey condu 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
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 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; (i) 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;
(iii) 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 (iv) 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.
(0 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 (i) if true, that Tenant has not disposed of any oil,
grease, toxic, or hazardous material, at the Premises or (ii) that any such substances 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 Tenant's
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.
Notwithstanding anything to the contrary contained in this Lease, Tenant's failure to object to any statement,
invoice or billing rendered by Landlord within a period of one hundred eighty (180) days after receipt thereof shall constitute
Tenant's acquiescence with respect thereto and shall render such statement, invoice or billing a final and binding account
stated between Landlord and Tenant. Landlord and Tenant intend that the foregoing provision shall supersede any right to
audit or request back up documentation from Landlord which may otherwise be provided by this Lease and the foregoing
provisions are not intended to grant any such right to Tenant not otherwise expressly provided in this Lease.
Section 23.19: PRIOR LEASE.
Deleted.
Section 23.20: FINANCIAL INFORMATION.
Tenant shall at any time and from time to time within twenty (20) days of written request from Landlord but not
more than once during any calendar year, deliver to Landlord such financial information concerning Tenant, Guarantor and
Tenant's and Guarantor's business operations as may be requested by Landlord, any mortgagee or prospective
mortgagee or purchaser or prospective purchaser.
Section 23.21: SPRINKLER CHARGE.
Deleted.
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34
Section 23.22: NOTICE TO MORTGAGEE.
If the holder of any mortgage which has a lien against the Shopping Center or any part thereo forwards to Tenant
written notice of the existence of such lien, then Tenant shall, so long as such mortgage is outstandi gf 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 by 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 if 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 Tenant's interests in this Lease
pursuant to 11 U.S.C. § 365 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 Party Offer"), which Third Party Offer Te ant or Tenant's trustee (as the case may be) deems) acceptable, Ten nltior
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 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 Tenant's 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
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. § 365(f) or any similar statutory provision.
Section 23.26: TENANT'S EXCLUSIVE.
(a) Non-Competition Covenant. Subject to the conditions and limitations set forth below, if the Premises are
used by Tenant for the Exclusive Use set forth below, during the Term of this Lease, then Landlord shall not permit any
portion of the Shopping Center, other than the Premises and the premises demised by a Permitted Lease, to be used by a
Competing Business.
(b) Exclusive Use. "Exclusive Use" shall mean the principal purpose of an ice cream store selling primarily
hand dipped ice cream for off-premises consumption. Com GLA for the sale of Businessed ice c am"for off p ^mis s consumptionmexclud,basiness which uses substantially all of its
(i) any premises occupied under a Permitted Lease;
(ii) the premises occupied by a tenant which replaces a tenant under a Permitted Lease if such
tenant uses its premises for the Exclusive Use;
(iii) the premises initially occupied by-a Major and/or Junior Major,
(v) any premises containing more than 2,500 square feet of GLA;
Mall; and SY) any premises that does not have direct customer frontage and/or customer entry to the Enclosed
(vi) Internet sales regardless of where initiated, including such sales made from any premises in the
Shopping Center occupied by any other tenant.
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(d) Permitted Le
(a "Prior Lease"), a renewal
leased or occupied a premise
ase. A "Permitted Lease" is a lease that was executed prior to the execution of this Lease
or extension of a Prior Lease, or a new lease that is executed by a person or entity which
s in the Shopping Center under a Prior Lease.
(e) Exclusive Becomes Null and Void. Landlord's Non-Competition Covenant shall automatically become
null and void if
(i) An Event of Default exists under the Lease;
thi (ii) Less than substantially all of the GLA in the Premises is used for the Exclusive Use for more than
rty (30) days unless as a result of a damage or destruction, taking by eminent domain or temporary closings for (x)
renovations or (y) in connection with an assignment or sublet of the Premises, which temporary closing shall not exceed, in
the aggregate, more than sixty (60) days.
(0 Limitation on Tenant's Remedies.
(i) Reduction In Minimum Rent. If Landlord violates Landlord's Non-Competition Covenant and
such violation continues for more than thirty (30) days after Landlord's receipt of written notice of such violation from
Tenant, then as Tenant's sole and exclusive remedy resulting from such violation, Tenant's Minimum Rent shall be
reduced by twenty percent (20%) percent commencing upon the thirty-first (31st) day after Landlord's receipt of such
notice and lasting until the earlier of the day such violation is cured or the expiration of twelve (12) months from the date
such violation commenced. It shall be a condition precedent to such reduction that Tenant shall have sustained and
verified a reduction in its Gross Sales in accordance with paragraph (ii) below.
(ii) Tenant shall submit to Landlord evidence reasonably satisfactory to Landlord confirming a
reduction in Gross Sales of at least twenty 20%
in continuous violation of the Landlord's Non-Competition Covena t t srtcompared y to period Tenant's during Gross which time Sales for the Landlord was
same
thirty (30) day period during the immediately preceding Year, and Tenant shall continue to submit such evidence to
Landlord monthly as a condition precedent to the continued effectiveness of the Minimum Rent reduction set forth in
paragraph (i) above. However, notwithstanding the foregoing provisions of this subparagraph (f), if there has been either a
general decline in (x) the average Gross Sales for tenants in the local market selling the items constituting the Exclusive
Use or (y) Tenant's Gross Sales during the prior Year, Tenant shall not be entitled to a reduction in the Minimum Rent
unless Tenant demonstrates that the decline in Tenant's Gross Sales exceeded either such general decline or the Gross
Sales decline incurred by Tenant for such Year by more than twenty percent (20%).
(iii) Failure to Cure Violation. If Landlord's violation of the Non-Competition Covenant remains in
effect for more than twelve (12) months, Tenant shall, as of the commencement of the thirteenth (13th) month either:
A. this Lease, which e etive Landlord's receipt of the ElectioneNoticee(as defined elow)t a dinunitiln uchl time Tenant may(continue to payereduced 0) as from date of
Minimum Rent in accordance with Paragraph (i) above; or
Lease.
B. Immediately recommence payment of full Minimum Rent pursuant to the terms of this Suc
enant
shall delivered to Landlord within ten (10)hdays aftertheTend of such twelve mad in (12) moh writing ("Election Notice"), and shall be
such election, Tenant shall be deemed to have elected to pay full Minimum Rent pursuanriod. If Tenant fails t to Paragraph (in to timely make
D. Upon e of his Lease or Tenant will be deemed to have waived anyeclaimto defatult against Landlord on accoun of he violation of Landlord' s Nont-
Competition Covenant.
(iv) Unauthorized violation of Landlord's Non-Competition Covenant by Third Parties. If a third
party occupant of the Shopping Center, in violation of its lease or other agreement with Landlord, commences the
Exclusive Use, Landlord shall have no liability to Tenant for damages nor shall Tenant have any remedy against Landlord
and such Use shall not constitute a violation by Landlord of Landlord's Non-Corn
pursue directly against such occupant such rights as may be afforded to Tenant under such circumstances. Landlord shall
certify to Tenant whether such occupant is permitted by its lease or other agreement to use it Covenant. for the Exclusivy
Use.
e
(g) Indemnity. In consideration of Landlord's agreeing to Landlord's Non-Competition Covenant, Tenant shall
indemnify, defend and hold Landlord harmless against and from all liabilities, obligations, damages,
costs, charges and expenses, including without limitation, reasonable attorney's fees, which may be imposed upon,
incurred by, or asserted against Landlord arising, directly or indirectly, Penalties, claims,
in case any action or proceeding is brought against Landlord bbyron of the foregoing, Tenant shall tat Ten?anrscsole
cost and expense, resist or defend such action or proceeding with counsel approved by Landlord.
Section 23.27: 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.
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDiorcr
36
(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) THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF
JUDGMENT CONTAINED IN SECTION 16.02(b) AND (c) AND THAT THE LANDLORD-TENANT RELATIONSHIP
CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH
OTHERWISE WOULD BE A CONDITION TO LANDLORD'S OBTAINING THE JUDGMENTS AUTHORIZED BY SUCH
SECTIONS AND ACKNOWLEDGES AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT
LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT AS SET FORTH IN SUCH SECTION WITHOUT
FURTHER PRIOR NOTICE TO TENANT AND LANDLORD MAY THEREAFTER GARNISH OR ATTACH TENANT'S
ASSETS OR PROPERTY AND MAY PLACE A LIEN ON THE SAME WITHOUT FURTHER PRIOR NOTICE OR
OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY REGARDING THE RIGHTS
WHICH ARE BEING WAIVED UNDER THIS LEASE, HAS BEEN FULLY ADVISED OF THOSE RIGHTS AND
NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS OR TENANT HAS HAD
THE OPPORTUNITY TO SO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF
THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date first hereinabove written.
LANDLORD:
PREIT SERVICES, LLC,
Agent for rk?APITAL CT LIMITED PARTNERSHIP
BY:
TENANT:
MaggieMoo's-CapitalCity-Final
September 22, 2006 % DiDio/jcr
CORADINO
37
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EXHIBIT "B"
GUARANTEE OF LEASE
THIS GUARANTEE made this cLday of _ 2006, by COLISEUM ENTERTAINMENT GROUP,
INC., a Pennsylvania corporation, having an address at 410 St. John's Church Road, Camp Hill, PA 17011 Attn: Patrick
Myers ("Guarantor") in favor of PR CAPITAL CITY LIMITED PARTNERSHIP, a Pennsylvania limited partnership, having
an address at c/o PREIT Services, LLC, 200 South Broad Street, The Bellevue, Third Floor, Philadelphia, PA 19102 Attn:
General Counsel ("Landlord").
Back round
On the IZL day of 2006, Landlord entered into an Agreement of Lease (hereinafter, together
with all prior amendments thereto are collectively referred to as the "Lease") with ROCK N MOO, INC. a Pennsylvania
corporation ("Tenant") for certain premises in the Capital City Mall, Camp Hill, Pennsylvania, as more particularly
described in the Lease (the "Premises"). Landlord would not have entered into the Lease unless Guarantor had agreed to
guarantee to Landlord all obligations of Tenant pursuant to the Lease.
NOW, THEREFORE, in consideration of the execution of the Lease and other good and valuable considerations,
and intending to be legally bound, the undersigned hereby absolutely unconditionally and irrevocably becomes surety to
Landlord, its successors, endorsees or assigns, for the full, faithful and punctual performance of each and all of the terms,
covenants, agreements and conditions of the Lease to be kept and performed by Tenant, in accordance with and within
the time prescribed by the Lease, whether at maturity or by declaration, acceleration or otherwise, as well as other
liabilities now or hereafter contracted by Tenant to Landlord, together with costs and expenses of collection incurred by
Landlord, including, without limitation, reasonable attorney's fees incurred by Landlord in connection with any of the
foregoing (hereinafter referred to as the "Liabilities"). The undersigned further agrees as follows:
1 • The liability of the undersigned under this Guarantee shall be primary under any right of action which shall
accrue to Landlord under the Lease, and Landlord may, at its option, and again the ned
without having to commence any action or having obtained anyro/ udg lent nitialalygainsdtirectly
Tenant. Gua antore he eby
acknowledges that this Guarantee is an absolute, irrevocable and unconditional guaranty of payment and performance and
not merely of collection. Landlord may join the undersigned in any action or proceeding against Tenant.
2. The undersigned waives (a) all notices, including but not limited to (i) notice of acceptance of this
Guarantee; (ii) notice of presentment, demand for payment, or default by Tenant; (b) all defenses, offsets and
counterclaims which the undersigned may at any time have jointly or severally to any of the Liabilities; (c) trial by jury and
the right thereto in any proceeding of any kind, whether arising on or out of, under or by reason of this Guarantee, or any
other agreement or transaction between the undersigned, Landlord and/or Tenant; and (d) all notices of a financial
condition or of any adverse or other change in the financial condition of Tenant.
. 3. Landlord shall have the right from time to time, and at any time in its sole discretion, without notice to or
consent from the undersigned, or without affecting, impairing, or discharging, in whole or in part, the liabilities of the
undersigned hereunder, to modify, change, extend, alter, amend, or supplement, in any respect whatever, the Lease or
any agreement or transaction between Landlord and Tenant or between Landlord and any other party liable for the
Liabilities, or any portion or provision thereof; to grant extensions of time and other indulgence of any kind to Tenant; to
compromise, release, substitute, exercise, enforce or fail or refuse to exercise or enforce any claims, rights, or remedies of
any kind which Landlord may have at any time against Tenant or any other party liable for the Liabilities, or any thereof, or
with respect to any security of any kind held by Landlord at any time under any agreement or otherwise. Nor shall the
Liabilities of the undersigned be affected, impaired or discharged, in whole or in part, by reason of any action whatsoever
taken by Landlord including, without limitation, sale, lease, disposition, liquidation or other realization (which may be
negligent, willful or otherwise with respect to any security in which Landlord may at any time have any interest or against
any other party liable for all or any part of the Liabilities).
4. This Guarantee shall be a continuing guarantee and the liability of Guarantor hereunder shall in no way be
affected, modified, diminished, impaired or terminated by reason of any of the following, whether or not notice thereof is
given to Guarantor: (i) any subletting of all or any portion of the Premises or any assignment or other transfer of Tenant's
interest in the Lease, (ii) any consent, approval, waiver or other action, inaction or omission under or concerning the
Lease, (iii) any modifications, renewals, extensions or amendments of the Lease, (iv) any dealings or transactions or
matter or thing occurring between Landlord and Tenant, or any of them, (v) any bankruptcy,
arrangement, assignment for the benefit of creditors, receivership or trusteeship affectinTenant or its successors or
assigns, (vi) the release or discharge of Tenant or Assignee from the performance or observance of any of the terms,
covenants or conditions contained in the Lease pursuant to the terms thereof, by operation of law, by reason of any of the
events described in Paragraph (v) above, or otherwise, (vii) any change in relationship between Guarantor and Tenant,
(viii) the default or failure of Guarantor to perform any of its obligations set forth in this Guarantee, (ix) any action which
Landlord may take or fall to take against Tenant by reason of any waiver of, or failure to enforce, any of the rights or
remedies reserved to Landlord in the Lease, or otherwise, (x) any failure or refusal of Landlord to re-let the Premises or
any part or parts thereof in the event that Landlord shall obtain Premises after Tenant's insolvency or
default, (xi) any failure to collect rent thereof under any such relet ng ssession
and (xfithany other circumstance or condition that
may result in a discharge, limitation or reduction of liability of a surety or guarantor.
5. If any b
p oceedings to repay to
nkru Guarantor or to Tenant, ordto anly trusteel,graeceiver or t ear rep a see oinsolvency ither of therme9 any amounts reviousl
by Guarantor pursuant to this Guarantee, this Guarantee shall be deemed reinstated to the extent of that repay ent made
by Landlord. Landlord shall not be required to litigate or otherwise dispute its obligation to make such repayments if, in
good faith and on the advice of counsel, Landlord believes that such obligation exists.
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6• GUARANTOR COVENANTS AND AGREES
LEASE THAT IF THERE IS A DEFAULT BY TENANT UNDER THE
, THEN GUA RANTOR HEREBY EMPOWERS ANY PROTHONOTARY, CLERK OF COURT OR ATTORNEY OF
ANY COURT OF RECORD TO APPEAR FOR GUARANTOR IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT
FOR ANY LIABILITIES, OR ANY CHARGES HEREBY RESERVED OR DESIGNATED AS LIABILITIES OR ANY OTHER
SUM PAYABLE BY GUARANTOR TO LANDLORD UNDER OR BY REASON OF THIS GUARANTEE, AND TO SIGN
FOR GUARANTOR AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION OR ACTIONS FOR
THE RECOVERY OF SAID LIABILITIES, CHARGES AND OTHER SUMS, AND IN SAID SUIT OR IN SAID ACTION OR
ACTIONS TO CONFESS JUDGMENT AGAINST GUARANTOR FOR ALL OR ANY PART OF THE LIABILITIES
SPECIFIED IN THIS GUARANTEE AND THEN UNPAID INCLUDING, AT LANDLORD'S OPTION, THE LIABILITIES FOR
THE ENTIRE UNEXPIRED BALANCE OF THE TERM OF THE LEASE, AND ALL OR ANY PART OF ANY OTHER OF
SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS TOGETHER WITH REASONABLE ATTORNEY'S FEES
OF 5%. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY BE
CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID LIABILITIES OR SUCH OTHER
SUMS, CHARGES, PAYMENTS, COSTS AND EXPENSES SHALL FALL DUE OR BE IN ARREARS, AND SUCH
POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION
OR RENEWAL OF THE LEASE.
In any action to confess judgment for Liabilities in arrears, Landlord shall first cause to be filed in such action an
affidavit made by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which
facts such affidavit shall be conclusive evidence, and if a true copy of this Guarantee (and of the truth of the copy such
affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of
attorney, any rule of Court
, stom or practice to the contrary notwithstanding.
W (INITIAL). GUARANTOR WAIVER.
THAT GUARAR U
NTARILY, KNOWINGLY AND TELL GENTLOYRWAIVE! CERTAIN ACKNOWLEDGES PROCESS
RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING PARAGRAPHS
REGARDING CONFESSION OF JUDGMENT. GUARANTOR FURTHER SPECIFICALLY AGREES THAT IN THE
EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING A MONEY
JUDGMENT FOR PAST DUE AND ACCELERATED LIABILITIES AND EXECUTING UPON SUCH JUDGMENT.
FURTHERMORE, GUARANTOR SPECIFICALLY WANES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S
COUNSEL FOR VIOLATION OF GUARANTOR'S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS
CONFESSED PURSUANT TO THIS GUARANTEE.
7. If Landlord shall employ counsel to enforce Guarantor's obligations under this Guarantee or an
thereof, Guarantor agrees to pay on demand all of Landlord's costs in connection therewith, whether suit be brought or not,
including, without limitation, reasonable attorney's fees and disbursements. Y Part
8. The undersigned and each of them agree and consent to the exclusive jurisdiction as set forth in the
Lease in any and all actions and proceedings whether arising hereunder or under any other agreement or undertaking.
The undersigned waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding brought in any such court, any claim that Guarantor is not subject personally to the jurisdiction of such
courts, that Guarantor's property is exempt or immune from attachment or execution, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Guarantee or the
subject matter hereof may not be enforced in or by such court, and further agrees to waive, to the fullest extent permitted
under applicable law, the benefit of any defense that would hinder, fetter or delay the levy, execution or collection of any
amount to which Landlord or its successors or assigns are entitled pursuant to the final judgment of any court having
jurisdiction.
9. Guarantor hereby consents to service of process by certified or registered mail at Guarantor's address as
provided in Section 15 below or in any other manner permitted by law. Guarantor agrees that service in the foregoing
manner shall be deemed, in every respect, effective service of process upon Guarantor and be taken and held to be valid
personal service upon, and personal delivery to, Guarantor. Guarantor agrees that Guarantor's submission to jurisdiction
and consent to service of process by mail is made for the express benefit of Tenant.
10. The waiver of any right by Landlord or failure to exercise promptly any right shall not be construed as the
waiver of any other right to exercise the same at any time thereafter. All rights and remedies of Landlord are cumulative
and not alternative. If any part hereof is determined to be illegal or unenforceable, such part shall be deemed stricken (or
reformed as necessary to eliminate such illegal or unenforceable part but no further) and the remainder hereof shall be
unaffected and shall remain in full force and effect. If this Guarantee in its entirety shall be held ineffective or
unenforceable by any court of competent jurisdiction then the undersigned shall be deemed to be a tenant under the Lease
with the same force and effect as if the undersigned had executed the Lease as Tenant or were named as a joint tenant
therein and were jointly and severally liable with Tenant thereunder. This Guarantee shall be a continuing
security agreement and shall continue and remain in full force and effect until all of the Liabilities have been completely
and satisfactorily otherwise discharged by Tenant; h undersigned guarantee and
obligation to Landlord under this Guarantee so long as any claim of Landlord against Tenants not satisfied settled or
discharged in full. This Guarantee shall survive the expiration of the term of the Lease. any way released of its
11. Guarantor represents and warrants to Landlord that:
(A) It is a corporation duly incorporated and validly existing under the laws of Pennsylvania.
and to (B) Guarantor has full power, authority and legal right to cause this Guarantee to be signed and delivered,
hereunder.
perform and observe the provisions of this Guarantee, including, without limitation, the payment of all moneys
all necessary corporate The signature, deliver and performance by Guarantor of this Guarantee has been duly authorized by
action.
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(D) This Guarantee constitutes the legality and binding obligation of Guarantor, and is enforceable in
accordance with its terms, except as such enforceabilty may be limited by reason of (i) any applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws ordinances, rules or regulations affecting the enforcement of
creditors' rights generally, or (ii) general principles of equity.
(E) (i) Guarantor, as of the date hereof, is not in violation of any decree, ruling, judgment, order or
injunction applicable to it nor any law, ordinance, rule or regulation of whatever nature, nor (ii) are there any actions,
proceedings or investigations pending or threatened against or affecting Guarantor (or any basis therefor
Guarantor) before or by any court, arbitrator, administrative agency or other governmental authority or entity, any ofknownwhichto
under (i) or (ii) above, if adversely decided, would materially or adversely affect its ability to carry out any of the terms,
covenants and conditions of this Guarantee.
commission or (F) Noauthority authorization,
entity r ovalrequired for , consent ortpeermiss
(govemmental or otherwise) a any court, agency,
due i execution, ental
Guarantor of this Guarantee or for the payment of any sums hereunder. delivery, Performance or observance by
other or (G) Neither the execution and delivery of this Guarantee, nor the consummation of the transactions herein
contemplated, nor compliance with the terms and provisions hereof, conflict or will conflict with or result in a breach of any
of the terms, conditions or provisions of the certificate of incorporation or by-laws (or similar organizational documents) of
Guarantor, or any order, writ, injunction or decree of any court or governmental authority, or of any agreement or
instrument to which Guarantor is a party or by which it is bound, or constitute or will constitute a default thereunder.
12. Landlord may, without notice, assign this Guarantee in whole or in part. No assignment or transfer of the
Lease or subletting of the Premises shall alter, extinguish or diminish the liability of the undersigned hereunder.
13. (A) The liability of the undersigned shall be joint and several, shall bind the respective successors and
assigns of the undersigned and shall inure to the benefit of Landlord, its successors and assigns.
(B) No delay on the part of Landlord in exercising any right, power or privilege under this Guarantee, nor
any failure to exercise the same, shall operate as a waiver of, or otherwise affect, an right,
or privi of Landlord
under this Guarantee, nor shall any single or partial exercise thereof preclude the further exerc serof su h1eor the exercise
of any other, right, power or privilege of Landlord under this Guarantee.
(C) Neither any waiver or modification of any provision of this Guarantee, nor any termination of this
Guarantee, shall be effective unless in writing and signed by the party against which the waiver, modification or termination
is sought to be enforced, nor shall any waiver be applicable except in the specific instance of which it is given.
(D) The validity and enforcement of the Guarantee shall be governed by and construed in accordance with
the Lease and such laws shall apply in any action or proceeding arising out of or under this Guarantee.
(E) All remedies afforded to Landlord by reason of this Guarantee are separate and cumulative remedies,
and it is agreed that no one remedy, whether exercised by Landlord or not, shall be deemed to be in exclusion of any other
remedy available to Landlord and shall not limit or prejudice any other legal or equitable remedy which Landlord may have.
(F) If any provision of this Guarantee or the application thereof to any person or circumstance shall to any
extent be held void, unenforceable or invalid, then the remainder of this Guarantee or the application of such provision to
persons or circumstances other than those as to which it is held void, unenforceable or invalid, shall not be affected
thereby and each provision of this Guarantee shall be valid and enforceable to the fullest extent permitted by law.
14. Within fifteen (15) days after written request from Landlord, the undersigned shall deliver to Landlord or its
designee, an estoppel certificate in form satisfactory to Landlord and the undersigned executed by the undersigned
confirming that this Agreement remains in full force and effect in accordance with its terms and ratifying the undersigned's
obligations hereunder.
15. All notices, demands, requests, consents, approvals or other communications (collectively, "Notices")
desired or required to be given under this Guarantee shall be in writing, and, any law or statute to the contrary
notwithstanding, shall be effective for any purpose if sent by recognized overnight courier, prepaid, addressed as follows:
If to Guarantor, to it at:
410 St. John's Church Road
Camp Hill, PA 17011
Attn: Patrick Myers
If to Landlord, to it at:
PREIT SERVICES, LLC
The Bellevue, Third Floor
200 South Broad Street
Philadelphia, PA 19102
Attention: General Counsel
All Notices shall be deemed given or served on the date on which such Notice has been received. An
Guarantee may change the address to which Notices shall be delivered to it and its representatives by notice in
accordance with this Section 15. Y Party to this
16 Notwithstanding anything to the contrary contained in this Guarantee, Landlord agrees that the maximum
liability of Guarantor shall be limited to the amount of Rent (e.g., Minimum Rent plus all Additional Rent
payable by Tenant
for the twelve (12) month period commencing upon an Event of Default which gives rise to a claim under this Guarantee.
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDiolcr
40
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be executed as of the day and year first
above written.
GUARANTOR:
COLISEUM ENT RTAINMENT GROUP, INC.
By: "?
Name: a4??.? U?
Title: y (?, GAO
Attest:
Name:_ P6i4l` 7o& K 6L4Ul-C,
Title:----j e,,1 of
MaggieMoo's-CapitalCity-Final
September 22, 20013 \ DiDIo<Cr
41
EXHIBIT "C"
COMPLETION CERTIFICATE
DATED AS OF
PARTI
SHOPPING CENTER LEASE (the "Lease") dated as of
Parties:
PR CAPITAL CITY LIMITED PARTNERSHIP
("Landlord")
ROCK N MOO INC.
("Tenant")
Premises:
Tenant Store No: 218-B
GLA of Premises:- 595 square 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 unless otherwise
stated; 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 detailed cost break-down sheet satisfacto to Landlord s
item of the work done by, through or under Tenant in and about the Premisesand rnge line items and cost of each line
MaggieMoo's-CapitalCity-Final
September 22, 2006 1 DiDiolcr
42
F. electrical underwriters certificate from an organization satisfactory to Landlord.
All terms defined in any other part of the Lease are used herein as defined therein.
This COMPLETION CERTIFICATE has been executed as of the date first above written.
TENANT:
ROCK N MOO, INC.
By:
Name:
(Corporate Seal) Title:
Attest:
Name:
Title:
MaggieMoo's-CapitalCity-Final
September 22, 2006 \ DiDiolcr
43
x?ti b• f ?
CAPITAL CITY MALL
3506 Capital City Mall Drive • Camp Hill, PA 17011 • shopcapitalcitymall.com
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
7004 0750 0004 1091 4723
October 12, 2007
Maggie Moo's Ice Cream
c/o Coliseum Entertainment Group, Inc.
Attn: Patrick Myers
518 Katrina Court
Mechanicsburg, PA 17050
Re: Lease dated October 25, 2006 (the "Lease") by and
Between PR Capital City Limited Partnership, as Landlord
And Rock N Moo, Inc., as Tenant
Premises: Capital City Mall
Dear Tenant:
We are the Managing Agent of the above referred to Premises. As of October 12, 2007 you are in default
for failure to pay sums due under the Lease in the amount of $9,689.71.
Unless the foregoing amount is received in the Capital City Mall Management Office within 10 days from
the date hereof, we will take all legal action necessary to collect all amounts owing, terminate the Lease
and retake possession of the Premises.
THIS LETTER IS BEING SENT PURSUANT TO THE REQUIREMENTS OF ARTICLE 16, SECTION
16.01 OF THE LEASE.
Sincerely,
PREIT SERVICES LLC
Agent for Capital City Mall
Donald L. Smith, CSM
General Manager
Cc:
Lisa M. Most, Esq.
Michael DiSalle-PREIT Lease Administration
Bill King-PREIT Sr. Leasing Representative
A Pennsylvania Real Estate Investment Trust Property
STATEMENT Date- 11/12/2007
Account- 31599
Statement No - 250338
Page - 1
Make Check PR CAPITAL CITY LIMITED PARTNERSHIP
Payable To: PO BOX 92406
CLEVELAND OH 44193
From: CAPITAL CITY MALL
3506 CAPITAL CITY MALL DR
CAMP HILL PA 17011-7003
To: Maggie Moo's Ice Cream & Treatery Tenant: Maggie Moo's Ice Cream
c/o Coliseum Entertainment Group, Inc.
Attn: Accounts Payable Department
518 Katrina Court
Mechanicsburg PA 17050
FOR INQUIRIES CALL: Justo Vega TEL: 717-737-8275 or FAX: 7 17-737-0607 Amount Remitted:
Remit top portion with payment.
CHARGE DETAIL
Capital City Mall Maggie Moo's Ice Cream Lease 00026506
Invoice Date Bill Code Description Charges Payments Balance Check Number
111/2003 Balance Forward
7/25/2007 ELEP Electric Penalty
21.54 .00
21.54
8/29/2007 ELEU Electric 697.36 697.36
8/29/2007 STAX State Tax 41.84 41.84
10/1/2007 RENT MINIMUM RENT
10/1/2007 MKFD Marketing Fund 3,333.33
74.38 3,333.33
74.38
10/1/2007 EMF Energy Management Fee 50.00 50.00
10/1/2007 RE REAL ESTATE TAXES 100.65 100.65
10/1/2007 CAM CAM ESCROW 517.65 517.65
10/15/2007 SEWR Sewer 309.02 309.02
10/24/2007 ELEP Electric Penalty
10/3112007 ELEU Electric
10/31/2007 STAR State Tax
11/1/2007 RENT MINIMUM RENT
111112007 MKFD Marketing Fund
111112007 EMF Energy Management Fee
111112007 RE REAL ESTATE TAXES
11/1/2007 CAM CAM ESCROW 21.54
674.73
40.48
3,333.33
74.38
50.00
100.65
517.65 21.54
674.73
40.48
3,333.33
74.38
50.00
100.65
517.65
PAYMENTS SECTION
G/L Date Description Pa
3/9/2007 Payment Recd - Thank You
3/12/2007 Payment Recd - Thank You
4/6/2007 Payment Rec'd - Thank You
5/17/2007 Payment Rec'd - Thank You
5/21/2007 Payment Rec'd - Thank You
7/1/2007 Payment Rec'd - Thank You
7/16/2007 Payment Rec'd - Thank You
7/30/2007 Payment Roc'd Thank You
8/20/2007 Payment Rec'd - Thank You
8121/2007 Payment Recd - Thank You
8/27/2007 Payment Rec'd - Thank You
10/1512007 Payment Rec'd - Thank You
10/29/2007 Payment Rec'd - Thank You yments
4,076.01
4,076.01
4,076.01
4,076.01
953.65
32.00
4,796.98
4,852.99
788.99
4,076.01
1,085.61
4,076.01
776.95
1019
1021
1035
1060
1077
1095
1100
1119
1141
1148
1152
1172
1184 Check Number Remark
Balance
4,076.01
8,152.02
12,228.03
16,304.04
17,257.69
17,289.69
22,086.67
26,939.66
27,728.65
31,804.66
32,890.27
36,966.28
37,743.23
ACCOUNTSUMMARY
STATEMENT Date - 11/12/2007
Account- 31599
Statement No - 250338
Page- 2
PAYMENTS SECTION
G/L Date Description Payments Check Number Remark Balance
ACCOUNT AGING
Current
1-30
Balance Prior To 1/1/2003 .00
Plus Charges From 1/1/2003 9,958.53
Less Payments I Credits From 1/1/2003 .00
AMOUNT DUE: 9.958.53
31-60 61-90 91-120
Over 120
5,121.78
4,076.01 739.20 21.54 -
-4A-
91
P 4
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1
A
it
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PR CAPITAL CITY LIMITED
PARTNERSHIP,
Plaintiff,
V.
ROCK N MOO, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY
and COLISEUM ENTERTAINMENT
GROUP, INC.
CIVIL DIVISION
No. 08-1438
PRAECIPE FOR WRIT OF EXECUTION
Filed on Behalf of the Plaintiff,
Defendants. ) PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
1 Pa. I.D. No. 43523
Darlene M. Nowak
PA ID No. 37093
MARCUS & SHAPIRA LLP
One Oxford Centre, 35`h Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
t*
Q
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idV ?
0
V-
01.
900%,
Opel
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PRAECIPE FOR WRIT OF EXECUTION
Caption: PR CAPITAL CITY LIMITED ® Confessed Judgment
PARTNERSHIP, : ? Other
Plaintiff
V.
ROCK N M00, INC. trading as MAGGIE
MOO'S ICE CREAM AND TREATERY and
COLISEUM ENTERTAINMENT GROUP, INC.
File No. 08-14-AR
Amount Due $15,967.27
Interest $387.40 (to Jul 30, 2008)
. Atty's Comm ------
Defendant)
v. Graystone Bank, Garnishee
TO THE PROTHONOTARY OF THE SAID COURT:
The undersigned hereby certifies that the below does not arise out of a retail installment sale,
contract, or account based on a confession of judgment, but if it does, it is based on the appropriate original
proceeding filed pursuant to act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as
amended.
Issue writ of execution in the above matter to the Sheriff of
County, for debt, interest and costs, upon the following described property of the defendant (s)
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest
and costs, as above, directing attachment against the above-named garnishee(s) for the following property
(if real estate, supply six copies of the description; supply four copies of lengthy personalty list)
any cash accounts, receivables, payables etc
and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s).
(Indicate) Index this writ against the garnishee (s) as a lis pendens against real estate of the
defendant(s) described in the attached exhibit.
Date July 30, 2008 Signature:
Print Name: na,-i Pnp M. Nowak, •Ga .
Address:
Attorney for..
Telephone:
35th Fl., One Oxford Centre
Pittsburgh, PA 15219-6401
Plaintiff
(412) 471-3490
Supreme Court ID No: 37093
y co)
?5
O
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 08-1438 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 ROCK N MOO, INC., trading as MAGGIE MOO'S ICE CREAM AND TREATERY and
COLISEUM ENTERTAINMENT GROUP, INC., 518 Katrina Court, Mechanicsburg, PA 17050
(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:
GRAYSTONE BANK, 3599 Gettysburg Road, Camp Hill, PA 17011
Any cash, accounts, receivables, payables, etc.
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 $15,967.27
Interest to 7/30/08 - $387.40
Atty's Comm %
Atty Paid $54.50
Plaintiff Paid
Date: 8/05/08
(Seal)
L.L. $.50
Due Prothy $2.00
Other Costs
IOXA-
duAis . Long, Prothonotary By:
Deputy
REQUESTING PARTY:
Name DARLENE M. NOWAK, ESQUIRE
Address: 35TH FLOOR, ONE OXFORD CENTRE
PITTSBURGH, PA 15219-6401
Attorney for: PLAINTIFF
Telephone: 412471-3490
Supreme Court ID No. 37093
j . '+
SHERIFF'S RETURN - GARNISHEE
CASE NO: 2008-01438 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CITY LIMITED PARTNE
VS
ROCK N MOO INC ET AL
And now MARK CONKLIN
,Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:00 Hours, on the 11th day of August , 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
ROCK N MOO INC T/A MAGGIE MOOS ICE CREAM & TREATERY , in the
hands, possession, or control of the within named Garnishee
GRAYSTONE BANK 3599 GETTYSBURG RD
CAMP HILL, PA 17011
Cumberland County, Pennsylvania, by handing to
JENNIFER REED (SALES 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 .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Sworn and Subscribed to
before me this
true
and made
So answ r
.00
.00
????IpB R. Thomas Kline
.00
.00 plf? Sheriff of Cumberland County
nn
UU
08/12/2008
day of By
Deputy Sheriff
A.D
A . 1..
SHERIFF'S RETURN - GARNISHEE
CASE NO: 2008-01438 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CITY LIMITED PARTNE
VS
ROCK N MOO INC ET AL
And now MARK CONKLIN Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:00 Hours, on the 11th day of August , 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
COLISEUM ENTERTAINMENT GROUP INC
hands, possession, or control of the within named Garnishee
GRAYSTONE BANK 3599 GETTYSBURG ROAD
CAMP HILL, PA 17011
Cumberland County, Pennsylvania, by handing to
JENNIFER REED (SALES 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
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
Sworn and Subscribed to
before me this
in the
true
and made
So
.00 Alm
,"Nat
r- W?
.00 I/ .00 R. R. Thomas Kline
.00 Sheriff of Cumberland County
n r%
UU
08/12/2008
day of By
Deputy heriff
A.D
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:
So Answers,
Docketing
Poundage
Law Library
Prothonotary
Mileage
Surcharge
Levy
Postage
Garnishee
18.00
2.11
.50
2.00
15.00
40.00
20.00
.88
9.00
107.49 ? ??ba?09.
Advance Costs: 150.00
Sheriff's Costs: 107.49
42.51
Refunded on 05/27/09
R.- Thomas ine hen I?
B Ai p, Al
4harnn R. Lantz
r.a
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CD f ;
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0
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 08-1438 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 ROCK N MOO, INC., trading as MAGGIE MOO'S ICE CREAM AND TREATERY and
COLISEUM ENTERTAINMENT GROUP, INC., 518 Katrina Court, Mechanicsburg, PA 17050
(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:
GRAYSTONE BANK, 3599 Gettysburg Road, Camp Hill, PA 17011
Any cash, accounts, receivables, payables, etc.
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 $15,967.27
Interest to 7/30/08 - $387.40
Atty's Comm %
Atty Paid $54.50
Plaintiff Paid
Date: 8/05/08
L.L. $.50
Due Prothy $2.00
Other Costs
L)kA- P. c
R. Long, Prothonotary
(Seal)
By:
Deputy
REQUESTING PARTY:
Name DARLENE M. NOWAK, ESQUIRE
Address: 35TH FLOOR, ONE OXFORD CENTRE
PITTSBURGH, PA 15219-6401
Attorney for: PLAINTIFF
Telephone: 412471-3490
Supreme Court ID No. 37093