HomeMy WebLinkAbout08-3094Stephanie E. DiVittore, Esquire
John M. Coles, Esquire
BROADS & SINON LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717)233-5731
Attorneys for Plaintiff
SMITH LAND & IMPROVEMENT
CORPORATION,
Plaintiff
v.
CIVIL ACTION -LAW
HARRISBURG PIES, INC., NO. d 8~ 3 ~ 9 y ~a ~"""
Defendant
NOTICE OF ENTRY OF CONFESSED JUDGMENT
To: Harrisburg Pies, Inc.
2550 Coldsprings Road
York, Pennsylvania 17404
You are hereby notified that on May /~ `~, 2008, judgment by confession was entered
against you in the amount of $189,087.15, plus interest from the date of judgment accruing at the
rate of $31.08 per day and costs of collection.
Attached hereto are copies of all documents filed with the Prothonotary in support of the
confession of judgment.
Date: nLe~ 1 S ~ a 0`U 8'
P thonotary
: IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
. PENNSYLVANIA
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
LAWYER REFERRAL SERVICE
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
CARLISLE, PENNSYLVANIA 17013
(717) 249-3199
SMITH LAND & IMPROVEMENT
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
v.
HARRISBURG PIES, INC.,
CIVIL ACTION -LAW
Defendant
ENTRY OF JUDGMENT
AND NOW, this /,S ~ day of May, 2008, Judgment is hereby entered in favor of the
Plaintiff, Smith Land & Improvement Corporation, and against the Defendant, Harrisburg Pies,
Inc., and damages are assessed in the amount of $189,087.15, together with interest from the date
of judgment accruing at the rate of $31.08 per day plus costs of collection.
SMITH LAND & IMPROVEMENT
CORPORATION,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiff
v.
HARRISBURG PIES, INC.,
CIVIL ACTION -LAW
NO. o$- 3v QY' C;v~l leMi
Defendant
CONFESSION OF JUDGMENT
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 appear for the defendant and confess
judgment in favor of the plaintiff and against the defendant as follows, plus interest and costs
from the date of judgment and costs of collection as follows:
Principal sum:
Rent and other charges currently due
Liquidated Damages
Attorneys' Fees and Costs:
TOTAL
By:
$ 22,267.15
$161,820.00
$ 5,000.00
$189,087.15 plus interest
BROADS & SINON LLP
Stephanie E. DiVittore, Esquire
John M. Coles, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Defendant for the sole
purpose of confessing judgment;
attorneys for the Plaintiff for all
other purposes
Stephanie E. DiVittore, Esquire
John M. Coles, Esquire
BROADS & SINON LLP
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717)233-5731
Attorneys for Plaintiff
SMITH LAND & IMPROVEMENT
CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
v. CIVIL ACTION -LAW
HARRISBURG PIES, INC., NO. D8- 3~ ~ `~ ~~ ~-~~'""
Defendant
COMPLAINT IN CONFESSION OF JUDGMENT
NOW COMES Plaintiff, Smith Land & Improvement Corporation, by its undersigned
attorneys, Rhoads & Sinon LLP, and files the within Complaint in Confession of Judgment, stating
as follows:
1. Smith Land & Improvement Corporation ("Smith Land") is a Delaware corporation
having an office at 2010 State Road, Camp Hill, Pennsylvania 17011.
2. Defendant Harrisburg Pies, Inc. t/d/b/a Domino's Pizza ("Harrisburg Pies") is a
Pennsylvania corporation having an address at 2550 Coldsprings Road, York, Pennsylvania
17404.
3. At the time of the events relevant to this Complaint, Smith Land was the owner of
real property, a retail property consisting of approximately 740 square feet identified as Store
689360.1
No. 368 in the West Shore Plaza, located at 1200 Market Street, Lemoyne, Cumberland County,
Pennsylvania (the "Premises").
4. On or about December 9, 1996, Smith Land entered into a Lease Agreement (the
"Lease") with Harrisburg Pies whereby Harrisburg Pies was to lease from Smith Land the
Premises. (A true and correct copy of the Lease is attached hereto as Exhibit "A" and
incorporated herein by reference).
5. A default has occurred under the terms of the Lease, as Harrisburg Pies has failed,
neglected or refused after ten (10) days written notice from Smith Land to pay certain Fixed
Minimum Rent, Tax Rent, Tenant's proportionate share of operating costs, promotion charges
and other expenses, all as required by the Lease. (Lease, ¶19.01).
6. Through correspondence dated January 16, 2008, Harrisburg Pies was provided
notice of the default, setting forth that, as of January 16, 2008, Harrisburg Pies owed to Smith
Land $20,666.59. (A true and correct copy of the January 16, 2008 letter and proof of receipt is
attached hereto as Exhibit "B" and incorporated herein).
7. Despite such notice, however, Harrisburg Pies has failed to pay all Fixed
Minimum Rent, Tax Rent, Tenant's proportionate share of operating costs, promotion charges
and other expenses due and payable as required by the Lease. As a result, Harrisburg Pies
remains in default under the terms of the Lease. A letter reiterating this continuing default was
sent to Harrisburg Pies' counsel on May 6, 2008, setting forth that, as of May 6, 2008, the
amount in default is now $22,267.15. (A true and correct copy of the May 6, 2008 letter is
attached hereto as Exhibit "C" and incorporated herein.)
8. Despite such reminder, Harrisburg Pies remains in default under the Lease.
9. Paragraph 19.05 of the Lease entitles the Landlord, in the case of an Event of
Default, to liquidated damages in an amount equal to the Fixed Minimum Rent plus other
Additional Rent items that would be due for the balance of the Lease term. The Lease term
would run until May 31, 2017, and during that time, Fixed Minimum Rent alone would be
$161,820.00. Smith Land is entitled to at least this amount as liquidated damages.
10. Paragraph 19.06 of the Lease contains confession of judgment and warrant of
attorney provisions which empower any attorney of any court of record to appeaz for and enter
judgment against Harrisburg Pies and in favor of Smith Land.
11. Judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
12. The Lease has not been assigned and Smith Land remains the Landlord and
Harrisburg Pies remains the Lessee.
13. Judgment has not been entered on the warrant of attorney contained in the Lease
in any jurisdiction.
14. As of the date hereof, the actual amounts presently due and payable to Smith
Land under the Lease are itemized as follows:
Principal sum:
Rent and other charges currently due $ 22,267.15
Liquidated Damages $161,820.00
Attorneys' Fees and Costs: $ 5,000.00
TOTAL $189,087.15 plus interest
to be accrued
WHEREFORE, Plaintiff, Smith Land & Improvement Corporation, demands judgment
in its favor and against Defendant, Hamsburg Pies, Inc., in the amount of $189,087.15, together
with accruing interest, costs of suit, including attorneys' fees, and such other charges as
authorized by the warrant contained in the Lease.
Respectfully submitted,
BROADS & SINON LLP
`-~~,`v ~ `~7l-ice'..-
By:
Stephanie E. DiVittore, Esquire
John M. Coles, Esquire
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Smith Land
& Improvement Corporation
VERIFICATION
R. E. Jordan III hereby deposes and says, subject to the penalties of 18 Pa. C.S. § 4904
relating to unsworn falsification to authorities, that he is the Vice President of Smith Land &
Improvement Corporation, that he makes this verification as such officer by its authority, and
that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct
to the best of his knowledge, information and belief.
Date: ~ I ~ ~ (~
R. E. Jord II
1 1
r-
WEST SHORE PLAZA
LEASE AGREEMENT
PARTI
THIS LEASE, made on th~~ day of ~~~''~'`~ 1996, by HIGH
ASSOCIATES, LTD., 4909 Louise Drive, Suite 209, Mechanicsburg, PA 17055 (hereinafter called
"Agent"), Agent for SMITH LAND & IlvIPROVEMENT CORPORATION, 2001 State Road, Camp Hill,
PA 17001-8134 (hereinafter called "Landlord), and HARRISBURG PIES, INC., a Pennsylvania
corporation, trading as DOMINO'S PIZZA, with a notice address and an address for receipt of invoices at
1550 Detwiler Drive, York, PA 17404 (hereinafter called "Tenant").
WITNESSETH:
1. Leased Premises.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the store premises (hereinafter
referred to as the "Premises' outlined in red on the plan attached as Exhibit "A" hereto as Store Number
364 8c 368 erected as part of a shopping center presently known as WEST SHORE PLAZA (hereinafter
referred to as the "Shopping Center" and presently compromising the area shown in Exhibit "A'~, located
at 1200 West Market Street, Lemoyne, PA 17043. The Premises have been measured by Landlord and
are described by the following approximate dimensions which are measured from the outside building lines
of each wall of the Premises or, in the case of this walls separating the Premises from other stores in the
Shopping Center, from the center lines of such walls:
Fmnt: 37 _
Depth: 20
Total Rentable Square Feet of Premises: 740
Tenant has either measured and confirmed the above dimensions or hereby waives any right to dispute said
dimensions in the future. Tenant also has the right to the non-exclusive use in common with others entitled
to use same of all automobile parking areas, driveways, corridors, footways, loading facilities and other
facilities as may be designated by Landlord from time to time as more fully set forth and subject to the
terms and conditions of this Lease and according to such reasonable rules and regulations for the use
thereof as maybe prescribed from time to time by the Landlord in accordance with Section 5.04 of Part II
of the Lease.
2. Length of Term. ~~
The original term of this Lease and Tenant's obligation too py the Premises in accordance with the
terms of the Lease shall commence on th earli owing dates (such earlier date being hereinafter
called the "commencement date': (1) 2) the date on which Tenant shall first open the
Premises for business with the public. The term of this Lease shall be for a period often years plus two (2)
months, plus the period, if any between the commencement date (if it falls on a day other than the first day
of the month) and the first day of the first full calendar mo~G~ ~ ~~~;7 ,~ ~
The Tenant's obligation to pay rent shall commence on (30) days after the
commencement date, to allow time for Tenant to complete necessary iixturing and construction; but
payment of rent shall in no event commence later than the fast day during which Tenant opens the
`~ Premises for business with the public.
ti
TIME PERIOD ~~MONTHL AMOUNT ANNUAL AMOUNT ~ e ~' ~~,
st 1 1996-September 30, 19 NO RENT DUE .,~ ~
3. Fized Minimum Rent
Over the course of the original lease term, Tenant shall pay to Landlord a minimum rent of $132,132.00,
which is the sum of the "Fixed um R each of the following periods during the original lea
term• ~C~j ~~~~~7 ~~~~ G
Octo 1, 1996-September 30 997 $ 987.00 $11,844.00
October 1997-September , 1998 $ 987.00 $11,844.00
October 1, 8-Septa 30, 1999 $1,016.00 $12,192.00
October 1, 19 Sep bar 30, 2000 $1,047.00 $12,564.00
October 1, 2000- ember 30, 2001 $1,078.00 $12,936.00,
October 1, 20 -Sep bar 30, 2002 $1,111.00 $13,332.00
October 1 02-Septem 30, 2003 $1,144.00 $13,728.00
Octobe , 2003-September 2004 $1,178.00 $14,136.00
0 1, 2004-September 30, OS $1,213.00 $14,556.00
ober 1, 2005-September 30, 20 $1,250.00 $15,000.00
Each such installment shall be due and payable on or before the first day of each calendar month in the
original term of this Lease, in advance, to the attention of:
Cash Management Department
High Industries, Inc.
P. O. Box 10008
1853 William Penn Way
Lancaster, PA 17605-0008
or at such other place as may be designed by Landlord from time to time, without any prior demand
therefor and without any deduction or setoff whatsoever, the first installment to be paid on the
commencement date whether or not the commencement date is the first day of a calendar month. In the
event that the commencement date of the term of this Lease shall be a day other than the fast day of a
calendar month, Tenant's first payment of Fixed Minimum Rent shall be prorated for the fiactional month
between the commencement date and the first day of the first full calendar month in the term hereof, on a
per diem basis (calculated on a thirty (30) day month).
4. Percentage Rent
This section intentionally deleted.
~n~ ~~~ ,
~ ~;E iw
~ (~~ ~ `~`
~!_ .
5. Use o! Premises.
Tenant shall use the premises as a bakery, store, or carry out for pizza and related foods and beverages and
those items customarily sold (either now or in the future) in a Domino's Pizza Store, and for all other
operations necessary or incidental to the conduct of its business. See Exhibit "D"
6. Shopping Center Hours of Operation.
The present hours of operation of the Shopping Center are:
Monday through Friday 10:00 a.m. to 9:00 p.m.
Saturday 10:00 a.m. to 9:00 p.m.
S~bey Noon to 5:00 p.m.
Tenant may operate its business during such business hours as are customary for tenant business use.
7. Common Cost of Maintenance and Operation.
In accordance with and subject to the adjustments set forth in Section 7.03 of Part II of the Lease, for each
"Accounting Period" (as defined in said Section) during the term of this Lease, Tenant shall pay Landlord
on account of Tenant's proportionate share of "Operating Costs" (as therein defined), the annual amount
of $1.36 multiplied by the number of square feet of floor area contained within the Premises (740 square
_.,_
ee _ . _- ---....__---_......._ .
2
8. Taxes.
In accordance with and subject to the adjustments set forth in Section 2.04 of Part II of the Lease, for each
"Tax Year" (as defined in said Section) during the term of this Lease, Tenant shall pay Landlord on
account of Tenant's share of any "taxes" as defined in such Section), the annual amount of 5.91 multiplied
by the number of square feet of floor area contained within the Premises (740 square feet).
9. Promotion.
In accordance with and subject to the adjustments set forth in Article XV of Part II of the Lease, for each
year during the term of this Lease, Tenant shall pay to Landlord the annual amount of $.50 multiplied by
the number of square feet of floor area contained within the Premises for the pmmotaon ac~tt" 'vi esh' 'vi esh
10. Proportionate Insurance.
In accordance with and subject to the adjustment set forth in Section 7.04 of Part II of the Lease, for each
Accounting Period during the term of this Lease, Tenant shall pay Landlord on account of Tenant's share
of the cost of Landlord's policy of fire insurance with extended coverage insuring portions of the Shopping
Center, the annual amount of $.19 multiplied by the number of square feet of floor area contained within
the Premises (740 square feet).
11. Landlord's Modifications of Premises for Tenant:
Except to the extent outlined in Exhibit "B" hereto entitled "Landlord's Work in Premises," Tenant agrees
to accept the Premises in as-is condition from Landlord.
12. Remodeling.
See Part II, Article VIII, Section 8.03, Paragraph (c).
13. Security Deposit.
Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord the sum of
One Thousand Two Hundred Dollars, ($1,200.00) receipt of which is hereby acknowledged by Landlord,
which deposit is now the property of the Landlord and is to beheld as security for the faithful performance
by Tenant of all of the terms, covenants and conditions of this Lease by said Tenant to be kept and
performed during the term hereof, subject to Article XX of Part II of the Lease. Should tenant not be in
default as of the 2nd anniversary date of the commencement of this lease, Landlord shall return to tenant
the entire sum of the security deposit.
14. Option.
Provided that Lessee is not in default of its lease, Lessee shall have an option to renew this lease for an
additional ten years upon all the same terms and conditions (except as set forth below) as herein contained
by serving written notice thereof upon Lessor not sooner than one hundred eighty (180) days nor later than
one hundred fifty (150) days prior to the termination of the original term of the lease.
Any default in the payment of rent, percentage rent, miscellaneous charges or the performance of any of
the other terms and conditions of the lease, shall cause this option to become null and void.
During the option period, the rent shall be as follows:
3
During the option period, the rent shall be as follows:
~----
TI1vIE PERIOD
October 1, 2006-September 30, 2007
October 1, 2007-September 30, 2008
October 1, 2008-September 30, 2009
October 1, 2009-September 30, 2010
October 1, 2010-September 30, 2011
October 1, 2011-September 30, 2012
October 1, 2012-September 30, 2013
October 1, 2013-September 30, 2014
October 1, 2014September 30, 2015
October 1, 2015-September 30, 2016
MONTHLY AMOUNT
$1,288..00
$1,327.00
$1,367.00
$1,408.00
$1,450.00
$1,494.00
$1,539.00
$1,585.00
$1,633.00
$1,682.00
ANNUAL AMOUNT
$15,456.00
$15,924.00
$16,404.00
$16,896.00
$17,400.00
$17,928.00
$18,468.00
$19,020.00
$19,596.00
$20,184.00
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Lease
to be duly executed the day and year first above written.
HIGH ASSOCIATES, LTD. ( ent)
Attest: BY:
SMITH LAND & IMPROVEMENT CORPORATION (Landlord)
Atte BY: ~1r' ~~-- 4
v f cc rs'Si President
HARRISBURG PIES, INC. DB/A DOMINO' S PIZZA (Tenant)
i~ ,
Attest: BY:
Pre ent
4
l
THE LEASE
AMENDMENT TO
INCEPTION AMENDME~
,0~ 1997, between SMITH ~A~iporating,
made this' uay of SBURG PIES, INC., a Pennsy
AGREEMENT «Iandlord"), d
)~ROVEMENT CORpOR,ATION,
trading as DOMINO' S PIZZA.
BACKGROUND
wherein Tenant leased 740
1997 located at 1200
A Tenant and Landlord entered into a lease dated December 9~"Shopping Center"),
Q center presently laiown ~ WEST SHORE PLAZA (
square feet of a shopping e PA 17043. The aforesaid lease is ended as set foth h ~ mLease "
West Maret Street Lemoyn 'encement of said Lease shall be am
B The Comm a ee as follows:
tending to be legally bound, gr
THEREFORE, the P~eS hereto, in May 31, 2007, Tenant shall have the right to
NOW, eriod May 19,1997 through
1 ggective for the Pterms and conditions as stated m the Lease except ~at'the rent shall a pro-
occupy said facility under the same final lease shall remain in .
rated as set forth herein. the above-stated p~o~ all the terms and conditions of the orig
2. Dunng .
Sections 3 and 14 by replacing those sections wtth
full force and effect subject to the followmg• and Part I,
The Parties to the above referenced Lease am
the following (pro-rated)
~1, 1997 $ 394.80 $11,844.00
May 19, 1997-May "' $ 987.00 $12,192.00
June 1, 1997-May 31,1999 $1,016.00
31, 2000 $12,564.00
June 1, 1999-May $1,047.00 $12,936.00
June 1, 2000-May 31, 2001 $1,078.00
2002 $13,332.00
3une 1, 2001-May 31, $1,111.00 $13,728.00
June 1, 2002-May 31, 2003 $1144,00
,1 X004 $14,136.00
June 1, 2003-May " ' 2005 $1,178.00 $14,556.00
June 1, 2004-May 31, $1,213.00 $15,000.00
June 1, 2005-May 31, 2006 $1,250.00
June 1, 2006-May 31, 2007
diti.onal
tion to renew this lease for an ado written
14. Option. Lessee shall have an op ~ herein contained by servm~ 150)
d conditions (except as set forth below) one hundred filly (
provided that Lessee is not in default of its e~e+ 180) days nor later than
ten years upon all the same terms an one hundred eighty
notice thereof upon Lessonro of the orig~ 1 inn of the lease. o f ~e other
Sys prior to the termm aes or the performance of any
a ent of rent, percentage rent, miscellaneous char and void.
Any default in the p ym tion to become null
terms and conditions of the lease, shall cause this op
Ding the option period, the rent shall be as follows: OLINT
Y AMOUNT' ANNUAL AM
MONTHL $15,456:00
T7,ME PERIOD $1,288..00 $15,924.00
June 1, 2007-May 31, 2008 $1,327.00
31, 2009 $1,367.00 $16,404.00
3une 1, 2008-May 31, X010 $16,896.00
June 1, 2009-May 81,408.00 $17400.00
June 1, 20~I0-May 31, 2011 $1,450.00
,1 2012 $1,494.00 $17,928.00
June 1, 2011-May ,1' 2013
" June 1, 2012-May " ,
June 1, 2013-May 31, 2014 $1,539.00 $18,468.00
June 1, 2014-May 31, 2015 $1,585.00 $19,020.00
June 1, 2015-May 31, 2016 $1,633.00 $19,596.00
June 1, 2016-May 31, 2017 $1,682.00 $20,184.40
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this
Lease to be duly executed the day and year first above written.
SMITH LAND & OVEMENT CORPORATION (Landlord)
Attest: ~ v~-~" BY:
Pres' ent
~~
HARRISBURG P ,INC. DB/A DOMINO' S PIZZA (Tenant)
Attest: ~ u Bl'~
President
PART II
WEST SIiORE PLAZA
LEASE AGREEMENT
ARTICLE I
TERM
SECTION 1.01. Confirmation of the Term
l
(a) At any time after the commencement date of the term of the Lease the parties shall execute
and deliver to each other, at the option of Landlord, either an instrument in recordable form or a letter
agreement prepared by Landlord, wherein Tenant shall:
(1) certify that the Lease is in full force and effect and (2) certify the commencement and termination dates
of the original term of this Lease.
(b) This Lease and the tenancy hereby created shall terminate at the end of the term hereof without
the necessity of any notice from either Landlord or Tenant to terminate the same, and Tenant hereby
waives notice to vacate the Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of possession of Premises from a tenant holding over to
the same extent as if statutory notice had been given.
(c) The period commencing on the date hereof and terminating at midnight on the date
immediately prior to the commencement date is herein referred to as the "initial term," and the period from
the commencement date to the stated expiration date or earlier termination of this Lease is herein referred
to as the "original term." For the purposes of this Lease the words "the term of this Lease" and "term
hereof' shall be deemed to mean the initial term and the original term of this Lease, and all extensions,
such as by the exercising of options granted by Landlord, or any other renewals of the original term.
During the initial term, all of the terms, covenants and conditions hereof shall be in full force and effect,
but Tenant's monetary obligations hereunder shall be abated until the original term has commenced.
SECTION 1.02. Failure of Tenant to Open; Failure to Operate.
It is expressly understood and agreed that Landlord does not consider the Fixed Minimum Rent in
itself a fair and adequate rental for the Premises and would not have entered into this Lease unless Tenant
had obligated itself to pay Percentage Rent which Landlord expects to supplement the Fixed Minimum
Rent to provide such fair and adequate rental return. Therefore, (a) if Tenant fails to open for business at
the commencement date and/or (b) thereafter, if Tenant fails to continuously operate its business in
accordance with the teens of this Lease or vacates the Premises prior to the expiration of the term hereof,
Landlord will suffer damages in an amount which are not readily ascertainable and thus in any such event
Landlord shall have the right, at its option, to collect as liquidated damages and not as a penalty, in addition
to all other charges which are due hereunder, one thirtieth (1/30th) of an amount equal to the monthly
installment of Fixed Minimum Rent for each day which Tenant fails to so operate and, in addition,
Landlord shall have the right to treat any of the aforesaid events as a "Deliberate Event of Default"
pursuant to Section 19.02(b) hereof.
and shall not reduce Tenant's obligation to pay the balance due Landlord pursuant to such statement. In
making the computations as aforesaid, a tax bill or photocopy thereof submitted by Landlord to Tenant
shall be conclusive evidence of the amount of the taxes included in the computation of the Tax Rent in
question; provided, however, Landlord shall have the right to bill Tenant for Tenant's shaze of the Tax
Rent for the last Tax Year in the term hereof whether or not Landlord shall theretofore have received a tax
bill covering the period from the date of the tax bill which foamed the basis of the most recent installment
on account of Tax Rent billed to Tenant to the expiration of the term hereof. If Landlord has not received a
tax bill, Landlord shall estimate the amount of the last installment of Tax Rent on the basis of information
contained in the tax bill most recently received by Landlord. Tenant shall pay such adjusted amount upon
billing by Landlord.
(d) As used in this Lease "excluded areas" shall mean all basement space, all portions of the
Shopping Center shown on Exhibit "A" attached hereto which are highlighted by diagonal lines, the variety
store (currently referenced as Store 268 on Exhibit A) and the grocery store as maybe expanded (currently
referenced as Store 100 on Exhibit A), and any portions of additions to the Shopping Center referred to in
Section 4.04(b) which Landlord hereafter designates as an excluded area.
(e) For the purpose of this Lease the words "Tax Year" shall mean the twelve (12) full calendar
months of the term commencing with the January 1st immediately following the commencement ending
December 31st of such calendar yeaz and each succeeding twelve (12) month period thereafter; provided,
however, the fast Tax Year shall commence on the commencement date and terminate on the immediately
succeeding December 31st.
(f) If the original term hereof commences or terminates (other than by reason of Tenant's default)
on a day other than the first or last day, respectively, of a Tax Year, Tenant's Tax Rent for such Tax Year
shall bepro-rated.
(g) If, after Tenant makes the required annual payment of Tax Rent, Landlord receives a refund
of any portion of the taxes (provided Tenant is not then in default hereunder) Landlord will, within forty-
five (45) days after receipt of the refund, pay to Tenant apro-rata net refund after deducting all costs and
expenses (including, but not limited to, attorneys' and appraisers' fees) expended or incurred in obtaining
such refund. Tenant shall not institute any proceedings with respect to the assessed valuation of the
Shopping Center or any part thereof for the purpose of securing a tax reduction.
(h) If at any time during the term of this Lease, under the laws of any one or more jurisdictions in
which the Shopping Center is located, a tax, imposition, charge, assessment, levy, excise or license fee is
levied on, imposed against or measured, computed or determined, in whole or in part, by: (1) rents payable
hereunder (Fixed Minimum, Percentage, Tax and/or addition) or (2) the value of any lien placed against the
Shopping Center or against the real property comprising the Shopping Center or any obligations secured
thereby, or if any other tax (except income tax), imposition, charge, assessment, levy, excise or license fee
which is not referred to in Section 2.04(a), however described or denoted, shall be levied or imposed by
any such jurisdiction, to the extend that the cost of any of the foregoing shall be imposed, either directly or
indirectly, on Landlord, such tax, imposition, charge, assessment, levy, excise or license fee, shall be
deemed to constitute "taxes" for the purposes of this Section 2.04.
(i) In the event of any dispute as to the floor area in the Shopping Center or any portion thereof
(other than the Premises which shall be determined by the provisions of Part I of the Lease), the
determination of Landlord shall be binding upon the parties.
SECTION 2.05. Additional Rent.
All sums of money or charges required to be paid by Tenant under this Lease, whether or not the
same are designated as "additional rent," shall for all purposes hereunder be deemed and shall be paid by
Tenant as rent. If such amounts or charges aze not paid at the time provided in this Lease, they shall
nevertheless be collectible as rent with the next installment of Fixed Minimum Rent thereafter falling due
hereunder together with a late chazge of fifteen percent (15%) per annum from the due date thereof to the
date thereof to the date of payment, but not in excess of the highest rate allowed by law. In the event any
check tendered by Tenant to Landlord is not honored on initial presentation, Tenant shall pay Landlord the
greater of Twenty-Five Dollars ($25.00) or the amount Landlord's bank chazges Landlord for processing
such returned check.
3
-~
ARTICLE III
BOOKS OF ACCOUNT AND AUDIT
SECTION 3.01. Tenant's Records.
This section intentionally deleted.
SECTION 3.02. Audit.
This section intentionally deleted.
ARTICLE IV
CONDITION AND REMODELING OF THE PREMISES: CHANGES TO SHOPPING CENTER
SECTION 4.01. Condition of Premises.
(a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept them in
the "as is" condition existing on the commencement date, except as to completion of Landlord
improvements described in Exhibit "B". Tenant further acknowledges that neither Landlord nor Agent has
made any representations as to the present or future condition of the Premises, the presence or absence of
hazardous materials (as defined in Section 21.22) therein or what items the prior occupant of such Premises
is required to or may leave in the Premises. Landlord shall not be liable for any inability to deliver
possession of the Premises to Tenant by the commencement date, except that any such inability shall
extend the commencement date by a period of time equal to the period between the commencement date
and the date Landlord delivers possession; provided, however, if Landlord has not turned over possession
by a date which is 120 days after the commencement date, Tenant may, at Tenant's option, terminate this
Lease provided that Tenant has not caused the delay, and this Lease shall be null and void and neither party
shall have any liability hereunder to the other.
(b) Tenant acknowledges that it assumes all responsibility and expense for achieving compliance
with Americans with Disabilities Act of 1990, Pennsylvania Department of Labor and Industry Code
pertaining to Universal Accessibility Standards, Building Officials and Code Administrators (B.O.C.A.)
Accessibility Standards for Handicapped Persons or any future federal, state or local laws, ordinances,
building codes or standards that may become applicable to the Premises; provided that Landlord'
improvements as described in Exhibit "B" are in compliance as of the commencement date of this lease.
SECTION 4.02. Remodeling of the Premises.
(a) Tenant shall fully and completely remodel the Premises in accordance with the plans and
specifications referred to below, such work to be completed by the date specified in the Paragraph of Part I
of the Lease captioned "Remodeling." Not later than thirty (30) days after the date hereof, Tenant shall
deliver to Landlord detailed plans and specifications prepared by Tenant's licensed architect disclosing
Tenant's proposed remodeling of the Premises. Landlord shall review such plans and specifications and
advise Tenant of any changes required by Landlord; Tenant shall promptly revise such plans and
specifications to incorporate Landlord's required changes and submit the revised plans to Landlord within
twenty (20) days after being advised of Landlord's changes, if any. Tenant shall commence such
renovations within ten (10) days after Landlord has approved Tenant's plans and specifications and has
turned over possession of the Premises. All such work shall be promptly commenced and thereafter
continued with due diligence and be fully completed and the Premises opened for business in accordance
with the provisions hereof not later than the commencement date. Tenant shall perform no work in the
Premises until such plans and specifications have been approved by Landlord. Together with the initial
submission of plans and specifications for (i) the remodeling required by this Lease and {ii) relating to any
other work in the Premises which Tenant desires or is required to perform, Tenant shall pay Agent $300.00
to defray the cost of reviewing Tenant's plans and specifications.
4
(b) In the event that the Premises contain vinyl asbestos floor file or any other type ofnon-friable
asbestos containing material (A.C.M.), tenant acknowledges and accepts all responsibility and expense for
repairing, maintaining, or encapsulating the A.C.M. in accordance with approved federal, state and local
protocols, practices and procedures for such repair, maintenance or encapsulation..
In the event that Tenant's renovations or repairs to the Premises cause or threaten to cause (in the
sole determination of the Landlord) the A.C.M. to become friable, Tenant acknowledges and accepts all
responsibility and expense for the removal and disposal of the A.C.M. in full compliance with all federal,
state and locally-approved protocols, practices and procedures for the removal and disposal of A.C.M.
Any such removal and disposal shall be accomplished by contractors licensed to do such removal and
disposal and such contractors shall carry insurance and performance bonds in amounts and with insurance
carriers acceptable to landlord.
Original copies of any and all documentation relating to the repair, maintenance, encapsulation,
removal, and/or disposal of A.C.M. shall, immediately become property of the Landlord. This
documentation shall include, but not be limited to, inspection reports, remediation contracts, maintenance
logs and reports, removal contracts, permits required by federal, state or local authorities having
jurisdiction over asbestos removal, transportation and chain of custody documents, and disposal and/or
landfill acceptance records. Failure of Tenant to provide these documents shall constitute a Deliberate Act
of Default.
(c) All work required under this Section and all other alterations to the Premises performed by
Tenant pursuant to this Lease (including, without limitation, any work required by Article XXI) are
collectively referred to as "Tenant's Work." Any work to be completed by Landlord shall be referred to as
"Landlord's Work" and shall be referenced in Exhibit "B:' All of Tenant's Work shall be completed at
Tenant's sole cost and expense. )n performing Tenant's work, Tenant shall comply with the following
requirements:
1. In addition to, and not in lieu of the other policies of insurance required by this Lease,
at all times between the start and completion of Tenant's Work (such period is herein referred to as
"Tenant's Construction Period', Tenant, at its own cost and expense, shall maintain in effect with a
responsible insurance company, a policy of "All Risk" Builder's Risk Insurance in the standard form for
the State where the Shopping Center is located. Said insurance shall cover the full replacement value of all
work done and fixtures and equipment installed or to be installed at the Premises by Tenant.,
2. At all times during Tenant's Construction Period, Tenant's contractors and
subcontractors shall maintain in effect worker's compensation insurance as required by the laws of the
State in which the Shopping Center is located.
3. Repair and/or reconstruction of all or any portion of Tenant's work damaged or
destroyed by any casualty occurring during Tenant's Construction Period shall be commenced by Tenant
as soon as possible after such casualty; provided that if all or any portion of Landlord's Work is also
damaged or destroyed by such casualty, Landlord shall notify Tenant when repairs or reconstruction of
Landlord's work is substantially completed and, within fifteen (15) days after receipt of such notice,
Tenant shall diligently pursue such repair and/or reconstruction to completion.
4. Any approval or consent by Landlord of any or all of Tenant's criteria, systems, plans
specification or drawings shall neither constitute an assumption of responsibility by Landlord for any
aspect of such criteria, systems, plans specifications or drawings including, but not limited to, their
accuracy or efficiency or obligate Landlord in any manner with respect to Tenant's Work and Tenant shall
be solely responsible for any deficiency in design or construction of all portions of Tenant's Work.
5. Tenant shall obtain and pay for all necessary permits and shall pay all other fees
required by public authorities or utility companies with respect to Tenant's Work.
6. Tenant shall maintain the Premises and the Common Areas (as defined in Section
7.01) adjoining the same in a clean and orderly condition during construction. Tenant shall promptly
remove all unused construction materials, equipment shipping containers, packaging, debris and waste
from the Shopping Center. Tenant shall contain all construction materials, equipment, fixtures,
merchandise, shipping .containers and debris within the Premises. Public corridors, service corridors and
the exterior of the-building shall be cleaz of Tenant's equipment., merchandise, refuse, and debris at all
tunes. The location of Tenant's dumpster for construction debris shall be subject to approval of Landlord
and/or Agent.
5
i
7. Only those contractors and subcontractors as have been duly licensed by the
municipality in which the Shopping Center is located and, if applicable, the authority having jurisdiction
over the appropriate profession, and which have been approved in writing by Landlord may perform any
portion of Tenant's Work for Tenant in or upon the Premises.
8. At any time and from time to time during the performance of Tenant's Work,
Landlord, Agent, Landlord's architect and/or Landlord's construction consultant may enter upon the
Premises and inspect the work being performed by Tenant and take such steps as they may deem necessary
to desirable to assure the proper performance by Tenant of Tenant's Work and/or for the protection of the
building and/or any other premises adjacent to the Premises. In addition, Tenant's Work shall be
performed in a thoroughly first-class and worl~anlike manner, shall incorporate only new materials and
shall be in good and usable condition at the date of completion.
9. Tenant's Work shall be coordinated with all work being performed or to be performed
by Landlord and other occupants of the Shopping Center to the end that Tenant's Work will not interfere
with the operation of the Shopping Center or interfere with or delay the completion of any other
construction within the Shopping Center, and each such contractor and subcontractor shall comply with all
procedures and regulations prescribed by Landlord or Agent for integration of Tenant's Work with that to
be performed in connection with any construction in the Shopping Center and in connection with the
operation of the Shopping Center.
10. Neither Tenant nor its contractors or subcontractors may use any space within the
Shopping Center (except the Premises) for storage, handling and moving of materials and equipment, and
if Tenant or such contractors and/or subcontractor shall use any space in the Shopping Center (except the
Premises) for any of the aforesaid purposes without obtaining Landiord's prior written approval therefore,
Landlord shall have the right to terminate such use or remove all of Tenant's and such contractor's or
subcontractor's material, equipment and other property from such space without Landlord being liable to
Tenant and/or such contractors or subcontractors; and the cost of such termination and/or removal shall be
paid by Tenant to Landlord. It shall be Tenant's responsibility to cause each contractor and subcontractor
to maintain continuous protection of adjacent property and improvements against damage by reason of
Tenant's Work, including at Landlord's request, the installation of lights, guard rails, barricades and
temporary store fronts of a design approved by Landlord, or at Landlord's option, Tenant shall reimburse
Landlord, on demand, for the cost incurred in Landlord's installation of such items.
11. Tenant shall promptly pay all contractors and material men so as to minimize the
possibility of a lien or claim of lien being filed with respect to the Premises or the Shopping Center, and
should any such lien be made or filed, Tenant shall cause the same to be discharged by bond or otherwise
within ten (10) days after written request by Landlord. If Tenant shall fail to cause such lien or claim of
lien to be bonded against or to be discharged within the period aforesaid, then, in addition to any other
right or remedy. which Landlord may have under this Lease, at law or in equity, Landlord may, but shall
not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the
discharge of such lien or claim of lien by deposit or by bonding proceedings and, in any such event,
Landlord shall be entitled, if Landlord so elects, to compel the prosecution of any action for the foreclosure
of such lien or claim of lien by the lienor with interest, costs and expenses. Any amount so paid by
Landlord and all costs and expenses incurred by Landlord in connection therewith or in connection with
insuring the title to the Shopping Center or any interest herein free of such lien or claim of lien, together
with a late charge thereon at the rate set forth in Section 2.05, from the respective dates of Landlord's
making of the payment and incurring of the cost and expense, shall constitute additional rent payable by
Tenant under this Lease and shall be paid by Tenant to Landlord on demand.
(d) Within ten (10) days after initially opening the Premises for business with the public, Tenant
shall supply to Landlord the following:
1. An executed and acknowledged release of mechanic's liens with respect to the
Premises executed by Tenant's general contractor and by every subcontractor and supplier of labor and/or
materials engaged in Tenant's Work.
2. Properly issued certificates evidencing acceptance or approval of the Premises by
appropriate governmental authorities, including the underwriter's approval of Tenant's sprinkler
installation and electrical system.
6
~ ~
3. A set of "as-built" plans and specifications for Tenant's Work prepared and sealed by
Tenant's architect, together with names and addresses of Tenant's electrical, plumbing, and other
contractors.
(e) Nothing in this Lease shall be construed as in any way constituting a consent or request by
Landlord, expressed or implied, by interference or otherwise, to any contractor, subcontractor, laborer, or
material man for the performance of any labor or the furnishing of any materials for any specific or general
improvement, alteration, or repair of or to the Premises or to any buildings or improvements thereon, or to
any part thereof. Notwithstanding anything in this Lease, or in any other writing signed by Landlord to the
contrary, neither this Lease nor any other writing signed by Landlord shall be construed as evidencing,
indicating, or causing an appearance that any erection, construction, alteration or repair to be done, or
caused to be done, by Tenant is or was in fact for the immediate use and benefit of Landlord.
SECTION 4.03. Parking Facilities.
Tenant and its employees shall park their cars only in those portions of the parking area
designated for that purpose by Landlord. Tenant shall famish Landlord with automobile license numbers
assigned to Tenant's car or cars and cars of its employees within five (5) days of a request therefor and
shall thereafter notify Landlord of any changes within five (5) days after such changes occur. In the event
that Tenant or its employees park their cars in area other than such designated parking areas, then Landlord
after giving notice to Tenant of such violation shall have the right to charge Tenant Ten Dollars ($10.00)
per day per car parked in any areas other than those designated.
SECTION 4.04. Roof, Walls, Changes and Additions to Shopping Center.
(a) Landlord hereby reserves the exclusive right at any time and from time to time to use all or
any part of the roof, exterior walls and air space above the finished ceiling of the Premises for any purpose;
to erect scaffolds, protective barriers or other aids to construction on, around and about the exterior of the
Premises, provided that access to the Premises shall not be substantially denied. Landlord also reserves the
right after written notice to Tenant to enter the Premises (except that in the event of an emergency, no
notice shall be required), at any time and from time to time to make such repairs, additions or alterations as
it may deem necessary or desirable to the Premises, to the building in which the Premises is contained, or
the Shopping Center in general; to shore the foundations and/or walls thereof and/or to install, maintain,
use, repair, inspect and replace foundations, columns, pipes, ducts, conduits and wires leading through or
located adjacent to the Premises and serving other parts of the Shopping Center. Landlord shall use
reasonable efforts to install such pipes, ducts, conduits or wires in the space above Tenant's finished ceiling
(or if Tenant does not have finished ceiling), in the space above the height where, in Landlord's opinion, a
finished ceiling would otherwise exist, or another location which does not materially interfere with
Tenant's use of the Premises. Landlord's rights hereunder maybe exercised by Landlord's designee.
Tenant shall not remove or tamper with any such pipes or other apparatus installed by Landlord.
(b) Landlord hereby reserves the right at any time to make alterations or additions to, and to build
additional stories on, and to build adjoining any buildings in the Shopping Center, including the building in
which the Premises are contained and to construct other buildings or improvements in the Shopping Center
and Tenant shall have not interest of any kind whatsoever in the said additions or additional stories or
adjoining buildings. Landlord also reserves the right to reduce or enlarge the area of the Shopping Center
by excluding portions of the ground therefrom or adding additional ground thereto from time to time and,
whether or not so reduced or enlarged, to construct double-deck elevated or subterranean parking facilities.
(c) If any excavation shall be made or authorized to be made upon land adjacent to the Premises,
Tenant shall afford to the person causing or authorized to cause such excavation license to enter upon the
Premises for the purpose of doing such work as Landlord shall deem necessary to preserve the wall or the
building of which the Premises form a part from injury or damage and to support the same by proper
foundations, without any claim for damages or indemnification against Landlord or diminution or
abatement of rent..
(d) Landlord reserves the right to install kiosks, fountains, benches, seating arrangements,
promotional activities, seasonal displays, temporary stores, amusement devices and other amenities in
7
1
certain portions of the Common Areas selected by Landlord from time to time, all of which shall be done at
Landlord's sole cost and expense and without any approval and consent of Tenant. Landlord also reserves
the right to enclose any open sections of the Shopping Center.
(e) Tenant acknowledges that Landlord's implementation of its rights set forth in Section 4.04
may interfere with access to or visibility of the Premises or the availability of certain parking areas and
Common Areas and Tenant agrees that the exercise of any such rights shall not constitute any grounds for
an abatement of any rent hereunder to be deemed an eviction or disturbance of Tenant's use and possession
of the Premises nor shall the same render Landlord liable in any manner to Tenant for any inconvenience,
disturbance, loss of business or any other occurrence arising from the exercise of any such rights; provided,
however, that tenant shall not be prevented from conducting its business in substantially the same manner
as conducted by tenant prior to Landlord's exercise of such rights.
SECTION 4.05 Right to Relocate.
(a) The purpose of the plan hereto annexed as Exhibit "A" is solely to show the approximate
location of the Premises and the present layout of the Shopping Center, but Landlord does not warrant or
represent to Tenant that the Shopping Center will continue to be improved as shown thereon. Landlord
hereby reserves the right at any time and from time to time to make changes or revisions in such plan and
the Shopping Center, including but not limited to, additions to, subtractions from, and/or re-locations or
rearrangements of, the buildings, pazking areas, and other Common Areas shown on such plan.
(b) Notwithstanding anything to the contrary contained in this Lease, in connection with any
expansion, enlargement or rearrangement of the Shopping Center or any aspect thereof, Landlord shall
have the right on one or more occasions to require that Tenant relocate from the Premises to a location
designated by Landlord ("Relocated Premises' which shall contain approximately the same number of
square feet as currently contained within the Premises, such relocation to be implemented in accordance
with the terms and conditions set forth below. Landlord shall advise Tenant in writing as to the location of
the Relocated Premises and the date by which Landlord will require that Tenant complete such relocation.
Tenant shall have a minimum of six months to complete the relocation from the date of Landlord's notice.
Within thirty (30) days after receipt by Tenant of Landlord's notice, Tenant shall advise Landlord in
writing whether Tenant agrees to relocate to the Relocated Premises in accordance with the provisions
hereof. If Tenant elects not to relocate within the shopping center in the new space (relocated premises),
designated by Landlord, Tenant will notify Landlord, in writing within 30 days from receipt of Landlord's
notice to tenant, of its intent not to relocate in the shopping center. Landlord will then terminate the lease
with the Tenant and reimburse Tenant using the same formula as if Tenant is relocating within the
shopping center as outlined below. In the event Tenant fails to notify Landlord that Tenant will relocate
within the aforesaid time frame, or fails to notify Landlord of its decision with respect to such relocation,
then at any time thereafter Landlord may cancel this Lease upon fifteen (15) days' prior written notice to
Tenant, in which event this Lease will expire on such date as though the date set forth in the letter of
cancellation was fixed as the expiration date hereof, and Landlord shall have no liability to Tenant as a
result of such cancellation. If Tenant agrees to so relocate, after notice from Landlord to do so, Landlord
will contribute to the cost of Tenant's relocation in an amount equal to Tenant's documented cost of
preparing the original Premises for occupancy, times a fraction wherein the denominator is the number of
months in the original term and the numerator is the number of months including fractional months that
would remain in the original term after the Tenant's last day of occupancy in the original Premises. Prior
to performing such work, Tenant shall submit to Landlord for approval the plans referred to in Section 4.02
disclosing all of Tenant's Work to be performed in the Relocated Premises and no such work shall
commence until such plans have been approved by Landlord. In any event, not later than the date specified
for the completion of such move, and whether or not Tenant shall have commenced business in the
Relocated Premises, Tenant shall vacate the Premises demised hereby and peaceably surrender possession
thereof to Landlord in accordance with the provisions hereof. Commencing as of the last day by which
such relocation must be accomplished, or if sooner, the day Tenant commences business in the Relocated
Premises, all of Tenant's right, title and interest in and to the Premises originally demised hereby shall
cease and terminate and from and after such date the Relocated Premises shall be deemed demised
hereunder in lieu of the Premises originally demised hereby. At the request of Landlord, the parties shall
S
enter into an amendment to this Lease which shall confirm the area and size of the Relocated Premises.
The Fixed Minimum Rent.
SECTION 4.06. Financing.
(a) This section intentionally deleted.
(b) Landlord reserves the right to sell, lease or sever the ownership of or title to the various
sections of the Shopping Center and/or to place separate mortgages on said sections. Tenant shall execute
from time to time such instnunents reasonable required by Landlord and its mortgagee to effectuate the
provisions of this Section 4.06(b).
SECTION 4.07. Ezcuse of Performance.
Notwithstanding anything in this Lease to the contrary, if Tenant shall be delayed or hindered in
or prevented from performance of any act required hereunder by reason of any strike, lock-out, labor
dispute, civil commotion, wazlike operation, invasion, rebellion, hostilities, military or usurped power,
sabotage, governmental regulation or controls, failure of power, inability to obtain any material or service,
Act of God or other reasons of a like nature not related to the fault of Tenant, then performance of such act
by Tenant shall be excused for the period of such delay; provided, v oregoing shall not excuse
Tenant from the prompt payment of Fixed Minimum Rent, Rent, additional rent or
any other payments required by the terms of this Lease or delay the date on which Tenant's obligation to
commence such payments shall begin. Notwithstanding anything in this Lease to the contrary, Landlord
shall not be deemed in default with respect to the performance of any of the terms, covenants and
conditions of this Lease if Landlord's failure to perform such terms, covenants and conditions is due to any
strike, lockout, labor dispute, civil commotion, waz-like operation, invasion, rebellion, hostilities, military
or usurped power, sabotage, governmental regulations or controls, failure of power, inability to obtain any
material, service or financing, Act of God, fire or other casualty or other cause, whether similar or
dissimilaz to those enumerated in this Section, which is beyond the reasonable control of Landlord.
ARTICLE V
CONDUCT OF BUSINESS
SECTION 5.01. Use of Premises.
(a) Except as otherwise specifically provided herein, commencing on the commencement date
and thereafter for the balance of the term of this Lease, Tenant shall continuously occupy and use the
Premises solely for conducting the business specified in Part I of the Lease as the Permitted Use, and will
not use or permit or suffer the use of the Premises for any other business or purpose. In addition, Tenant
agrees that Tenant shall not operate or cause or permit to be operated any catalogue, mail or telephone
order sales in or from the Premises except the incidental sale of merchandise which Tenant is permitted to
sell over the counter to customers in the Premises pursuant to the Permitted Use set forth in Part I of the
Lease, nor shall Tenant divert elsewhere any business which would ordinarily be transacted by Tenant at,
in, or from the Premises. The authorization of the use of the Premises for the business purposes set forth in
Part I of the Lease does not constitute a representation or warranty by Landlord that any particular use of
the Premises is now or will continue to be permitted under applicable laws or regulations.
(b) Tenant shall not permit, allow or cause any of the following to be conducted in the Premises:
any public or private auction, or any sale which would indicate to the public that Tenant is bankrupt, is
going out of business, or has lost its lease. Tenant shall not use or permit any use of the Premises, except
in a manner consistent with the general high standards of merchandising in the Shopping Center, nor shall
Tenant's advertising indicate or imply that Tenant is operating its business in a manner which is not
consistent with the_general high standards of merchandising in the Shopping Center. Nothing contained in
this Section 5.01(b) shall affect or is intended to affect Tenant's pricing policies.
9
~'
(c) Notwithstanding anything contained herein to the contrary, including the provisions of the
pazagraph of Part I of the Lease captioned "Use of Premises," Tenant is specifically prohibited from selling
or distributing tobacco "papers," pipes of the type and nature commonly associated with the smoking if
~, .. .~ »
marijuana (e.g. `water pipes ), roach clips, cocaine spoons and all other types of smoker's nove ty
items, materials or paraphernalia which are, or may reasonably be construed to be, intended for use in
connection with narcotics or other unlawful substances.
(d) This paragraph intentionally deleted.
(e) Throughout the term of this Lease, Tenant shall cause its store to remain open each day of the
week during the hours set forth in the paragraph of Part I of the Lease captioned "Shopping Center Hours
of Operation."
(f) Tenant shall operate and/or advertise the business operated at or from the Premises only under
the name set forth in the first page of Part I of the Lease, unless and until the use of another name is
permitted in writing, by Landlord. See Addendum.
SECTION 5.02. Storage.
Tenant shall warehouse, store and/or stock in the Premises only such goods, wares and
merchandise as Tenant is permitted and intends to offer for sale at retail in, at or from the Premises. This
shall not preclude occasional transfers of merchandise to other stores of Tenant, if any, not located within
the Shopping Center.
SECTION 5.03. Rules and Regulations.
• Tenant covenants and agrees that Tenant at its own cost and expense:
(a) Will keep all exterior and interior store front surfaces clean and will maintain the rest of the
Premises and all corridors and loading azeas immediately adjoining the Premises in a clean and orderly
condition and free of insects, rodents, vermin and other pests;
(b) Will not permit accumulations of any refuse, but will remove the same and keep such refuse in
odor-proof, rat-proof containers within the interior of the Premises shielded from the view of the general
public until removed and will not bum any refuse whatsoever but will cause all such refuse to be removed
by such person or companies, including Landlord, as maybe designated in writing by Landlord and will
pay all charges therefor, which shall in all events be competitive within the same geographical area for
similaz services performed by a reputable person or company; provided, however, that Landlord may
decline to designate any such person or company in which event all such refuse shall be removed by such
person or company as Tenant, subject to Landlord's written approval, shall select;
(c) Will replace promptly with glass of a like kind and quality and any plate glass or window
glass of the Premises which may become cracked or broken;
(d) Will not, without the Landlord's prior written consent, place or maintain any vending
machines, merchandise or other articles in any vestibule or entry of the Premises or on the exterior
sidewalks of the Shopping Center;
(e) Will not use or permit the use of any apparatus for sound reproduction or transmission, or any
musical instrument, in such manner that the sound so reproduced, transmitted or produced shall be audible
beyond the confimes of the Premises, and will not use any other advertising medium, including without
limitation flashing lights, or search lights which may be heard or experienced outside the Premises;
(f) Will keep all mechanical apparatus free of vibration and noise which may be transmitted
beyond the confines of the Premises;
(g) Will not cause or permit objectionable odors to emanate or be dispelled from the Premises;
(h) Will not solicit business, distribute handbills or other advertising matter or hold
demonstrations in the parking areas or other Common Areas in the Shopping Center;
(i) Will not permit the parking of delivery vehicles so as to interfere with the use of any driveway,
• ' walls, parking area, or other Common Areas in the Shopping Center. Deliveries of supplier and materials
-~ to the front entrance of the store will be permitted. Tenant's delivery vehicles, owned or operated by
Tenant, will be permitted to be parked in lined parking spaces.
10
- (j) Will comply with all laws, rules, regulations, guidelines, orders and ordinances of applicable
federal, state and local governmental authorities, commissions, boazds and agencies with respect to this
Lease, the use of the Premises, the removal of asbestos or any other hazardous material from the Premises,
or any work to be performed in the Premises by Tenant and Tenant shall secure and keep in force all
permits, licenses and approvals required for Tenant's use of the Premises. In addition, Tenant shall also
comply with all recommendations of the Association of Fire Underwriters, Factory Mutual Insurance
Companies, the Insurance Services organization, or other similar body establishing standards for fire
insurance ratings with respect to the use or occupancy of the Premises by Tenant and will participate in
periodic fire brigade instruction and drills at the request of Landlord and will supply, maintain, repair and
replace for the Premises any fire extinguishers or other fire prevention equipment and safety equipment
(including installation of approved hoods and ducts if cooking activity is conducted on the Premises)
required by the aforementioned rules, regulations and Association or other body in order to obtain
insurance at the lowest available premium rate throughout the term of this Lease;
(k) Will not receive or ship articles of any kind except through the facilities provided for that
purpose by Landlord; will attempt to direct any delivery of goods, supplies, merchandise, or fixtures to or
from the Premises to be made through the rear entry of Premises; and in no event will permit a delivery
vehicle to be parked in the fire Iane or parking facilities of the Shopping Center during the hours of
operation stated in Part I of this Lease;
(1) Will light the show windows of the Premises and exterior signs each day of the year to the
extent which shall be required by Landlord;
(m) Will keep all outside areas immediately adjoining the Premises including, but not limited to,
sidewalks and loading docks free from ice and snow and Tenant hereby agrees that Tenant is solely liable
for any accidents occurring on said outside areas due or alleged to be due to any accumulation of ice and
snow;
{n) This paragraph intentionally deleted.
(o) Will not use the plumbing facilities for any other purpose than that for which they are
constructed and will not permit any foreign substance of any kind to be thrown therein and the expense of
repairing any breakage, stoppage, seepage or damage, whether occunring on or off the Premises, resulting
from a violation of this provision by Tenant or Tenant's employees, agents or invitees shall be borne by
Tenant. All grease traps and other plumbing traps shall be kept clean and operable by Tenant at Tenant's
own cost and expense. Tenant shall keep the floor of the Premises and all penetrations thereof properly
sealed and caulked so that water or other substances in use in the Premises shall not leak from the Premises
to any Common Area or adjoining premises or premises located below the Premises;
(p) Will not permit. any shopping carts in the Common Areas even if taken there by customers;
(q) Will not place or cause or permit to be placed within the Premises, pay telephones, vending
machines (except those for the exclusive use of Tenant's employees) or amusement devices of any kind
without the prior written consent of Landlord;
(r) Landlord reserves the right from time to time to adopt and promulgate reasonable rules and
regulations applicable to the Premises and the Shopping Center and to amend and supplement such rules
and regulations. Notice of such rules and regulations and of any amendment and supplements thereto shall
be given to Tenant and Tenant agrees thereupon to comply with and observe all such rules and regulations,
provided that, to the extent practicable, the same shall be applied uniformly to substantially all retail
tenants of the Shopping Center, except for grocery and department stores;
(s) Landlord's rights and remedies in the event Tenant shall fail to comply with and observe such
rules and regulations shall be the same as though such rules and regulations were set forth in Section 5.03
of this Lease.
SECTION 5.04. Competition.
This paragraph intentionally deleted.
GRANT OF CONCESSIONS
SECTION 6.01. Condition to Grant.
11
The provision against subletting elsewhere contained in this Lease shall be applicable so as to
prohibit Tenant from granting concessions without the consent of Landlord for the operation of one or
more departments of the business of Tenant, and any grant of concessions consented to by Landlord shall
be subject to the conditions that (a) each such concession which may be granted by Tenant shall be subject
to all the terms and provisions of this Lease; (b) This paragraph intentionally deleted; (c) all of the
provisions hereunder applying to the business of Tenant including, but not limited to, the provisions of
Articles II and III shall apply to each such concession; (d) unless otherwise approved in writing by
Landlord, such department or departments shall be operated only as part of the business operation
generally conducted by Tenant on the Premises and under the advertised name of Tenant; and (e) at least
seventy-five percent (75) of the sales floor area of the Premises shall at all times be operated directly by
Tenant.
ARTICLE VII
COMMON AREAS
SECTION 7.01. Definition; Control.
All areas, space, facilities, equipment, and signs, to the extent made available by Landlord for the
common and joint use and benefit of Landlord, Tenant and other tenants and occupants of the Shopping
Center, and the respective employees, agents, subtenants, concessionaires, licensees, customers and other
invitees, are collectively referred to herein as "Common Areas " If and to the extent made available by
Landlord, Common Areas shall include, but not be limited to, the sidewallcs, parking areas, access roads
and drives, driveways, parking decks, bridges, landscaped areas, truck serviceways, tunnels, loading docks,
open enclosed pedestrian walkways, corridors and malls, courts, stairs, ramps, elevators, escalators,
comfort and first aid stations, public washrooms, community hall or auditorium parcel pick-up stations,
utility lines and utility rooms. All Common Areas in or about the Shopping Center shall be subject to the
exclusive control of Landlord. Landlord shall operate, manage, equip, police, light, surface, and maintain
the Common Areas in such manner as Landlord, in its sole discretion, may, from time to time determine.
Landlord hereby expressly reserves the right from time to time to construct, maintain and operate lighting
and other facilities, equipment and signs on all of the Common Areas; to police and maintain security for
the Common Areas; to use and allow others to use the Common Areas for any purpose; to change the size,
azea, level, location and arrangement of the Common Areas; to build mold-story and/or subterranean
parking facilities; to regulate pazking by tenants and other occupants of the Shopping Center and the
respective employees, agents, subtenants, concessionaires and licensees; to enforce parking charges (by
operation of meters, or otherwise) with appropriate provisions for parking ticket validation for tenants; to
close temporarily all or any portion of the Common Areas for the purpose of making repairs, changes or
alterations thereto or performing necessary maintenance in connection with any emergency, in connection
with closings resulting from adverse weather conditions or for any other purpose whatsoever, whether such
purpose is similar or dissimilar to the foregoing; to discourage non-customer parking; to establish, modify
and enforce reasonable rules and regulations with respect to the Common Areas and the use to be made
thereof. For the term of this Lease, Tenant is hereby given the license in common with all others to whom
Landlord has or may hereafter grant rights to use, the Common Areas as they may from time to time exist;
provided however, that if such license shall at any time be revoked, in whole or in part, or the size, area,
level, location or arrangement of such Common Areas or the type of facilities at any time forming a part
thereof be changed, altered, rearranged or diminished, Landlord shall not be subject to any liability
therefor, nor shall Tenant be entitled to any compensation or diminution or abatement of rent therefor, nor
shall such alteration, rearrangement, revocation, change or diminution or such Common Areas be deemed a
constructive or actual eviction or otherwise be grounds for terminating or modifying this Lease. In order to
establish that the Shopping Center or any portion thereof is and will continue to remain private property
and to prevent a dedication thereof of the accrual of any rights to any person or to the public thereon,
Landlord hereby reserves the unrestricted right, in Landlord's sole discretion, to close all or any portion of
the Common Areas to such extent as, in the opinion of the Landlord's counsel, may be legally sufficient to
12
prevent such dedication thereof or accrual of any rights to any person or the public thereon; provided,
however, Landlord reserves the right at any time and from time to time to dedicate to public use part or all
of the ring roads, access roads, drives and utility lines, together with all easements required to effectuate
such dedications, as it may see fit.
SECTION 7.02. Expenses.
Landlord (subject to reimbursement as set forth in Section 7.03) will at its expense operate and
maintain the Common Areas and the Shopping Center. For the purposes of this Lease, "Operating Costs"
shall be those costs deemed by Landlord to be reasonable and appropriate including, but not limited to, all
costs and expenses, whether expended or incurred, of operating, repairing, maintaining, replacing, lighting,
cleaning, and painting such Common Areas and the Shopping Center and insuring the same with such
policies and companies and in such limits as selected by Landlord. Insurance includes but is not
necessarily limited to, fire insurance with extended coverage, liability insurance covering personal injury,
deaths and property damage with a personal injury endorsement covering false arrest, detention or
imprisonment, malicious prosecution, libel and slander, and wrongful entry or eviction, worker's
compensation insurance, plate glass insurance, contractual liability insurance and fidelity bonds but
excluding the insurance referred to in Section 7.04 hereof. Expenses also include removing snow, ice
rubbish and debris; inspecting, policing, providing security and regulating traffic; rental of sweepers,
trucks, and other equipment; repairing and/or replacing of paving, roofs, curbs, walkways, landscaping,
drainage, in-site water lines, sanitary sewer lines, storm water lines, canopies, skylights, fountains,
electrical lines and other equipment serving the property on which the Shopping Center or any part thereof
is constructed; uniforms and replacement of uniforms; the rental of music programs, services and
loudspeaker systems including the furnishing of electricity therefor, all costs incurred by Landlord in
compliance with any environmental or other similar laws, rules, regulations, guidelines or orders, including
the cost of removing hazardous materials from the Shopping Center, and Landlord's property management
fees and expenses, including the gross compensation and fringe benefits of on-site personnel required to
supervise and accomplish the foregoing. In the event of any dispute as to whether an item represents an
expense or a capital item, Landlord's accounting practices shall be determinative and binding on the
parties.
SECTION 7.03. Reimbursement of Landlord.
(a) For each "Accounting Period" (as defined in Section 7.03(f)) during the original term of this
Lease, Tenant shall pay to Landlord as additional rent, as Tenant's share of the Operating Costs, a sum
equal to the product obtained by multiplying (1) the total Operating Costs for such Accounting Period less
all contributions thereto actually made by occupants of any excluded areas by (2) a fraction, the numerator
of which shall be the square feet of floor area of the Premises, and the denominator of which shall be the
total amount of squaze feet of rentable floor area in the Shopping Center less excluded azeas.
(b) On the first day of each calendar month during that portion of the term hereof falling within
the first Accounting Period during the original term hereof Tenant shall pay to Landlord, in advance,
without demand and without any setoff or deduction, as an estimated payment on account of Tenant's
share of the Operating Costs an amount equal to one-twelfth (1/12th) of the sum obtained by multiplying
the square feet of floor area of the Premises by the minimum annual chazge per square foot set forth in the
paragraph of the of Lease captioned "Common Cost of Maintenance and Operation." If the
commencement date hereof shall not be the first day of a calendar month, Tenant's payment of its
proportionate share of Operating Costs for the fractional month between the commencement date and the
first day of the first full calendar month in the term shall be prorated on a per diem basis (calculated on a
thirty (30) day month) and shall be paid together with the first payment of Fixed Minimum Rent.
(c) After the first Accounting Period, Tenant shall continue to pay such estimated amount of
Tenant's proportionate share of Operating Costs on the first day of each month in advance without demand
and without any setoff or deduction, but the aforesaid estimated amount of Tenant's share of Operating
Costs may be adjusted and revised by Landlord after the end of each Accounting Period during the term
hereof on the basis of the actual Operating Costs for the immediately preceding Accounting Period. Upon
13
Landlord furnishing to Tenant a statement setting forth such revised estimated Operating Costs, Tenant
shall pay to Landlord such revised estimated share in equal monthly installments, each such installment to
be a sum equal to one twelfth (1/12th) of such revised estimated Operating Costs, in advance on the fast
day of each calendar month thereafter until the next succeeding revision in such estimate.
(d) Following the end of each Accounting Period, Landlord shall furnish to Tenant a written
statement in reasonable detail covering the Accounting Period just expired and showing the total Operating
Costs for such Accounting Period, the amount of Tenant's shaze thereof and payments made by Tenant
with respect thereto. All subsequent monthly payments on account of Tenant's share of Operating Costs
made by Tenant during such Accounting Period after reception of such statement shall be applied by
Landlord as payment on account of Tenant's obligation for its share of Operating Costs for the next
ensuing Accounting Period and shall not reduce Tenant's obligation to pay the balance due (if any) to
Landlord pursuant to such statement. Tenant has thirty (30) days to appeal Landlord's statement of
Operating Costs, after which said statement shall be deemed accepted by Tenant.
(e) If Tenant's share of Operating Costs exceeds Tenant's payments with respect to any
Accounting Period, Tenant shall pay to Landlord the deficiency within thirty (30) days after the date of the
furnishing of the statement from Landlord. If Tenant's payments exceed Tenant's share of the Operating
Costs and Tenant is not in default hereunder or otherwise indebted to Landlord, Landlord shall, at
Landlord's option, apply such excess to Tenant's account as a credit or refund such excess to Tenant within
thirty (30) days; provided, if such overpayment is for the last Accounting Period, Landlord shall not be
obligated to refund to Tenant the amount of such overpayment until Tenant has fully performed all of its
obligations under this Lease, is not indebted to Landlord and has vacated in accordance with the provisions
of this Lease.
(f) For the purpose of this Lease, the words "Accounting Period" mean the period consisting of
twelve (12) consecutive calendaz months, commencing on a date determined by Landlord from time to
time and each succeeding twelve (12) calendaz month period during the original term of this Lease.
(g) If the original term of this Lease commences or terminates (other than by reason of Tenant's
default) during an Accounting Period, Tenant's obligation for Tenant's proportionate share of Operating
Costs for such Accounting Period shall be equitably pro-rated.
SECTION 7.04. Proportionate Insurance.
(a) For each Accounting Period or portion thereof in the original term hereof, Tenant shall pay to
Landlord, as additional rent, as Tenant's share of the cost of Landlord's policy or policies of fire insurance
with extended coverage incnring the Shopping Center other than such cost relating to the Common Areas, a
sum equal to the square feet of floor area of the Premises multiplied by the charge per square foot set forth
in the paragraph of Part I of the Lease captioned "Proportionate Insurance."
(b} Said sum shall be paid to Landlord on the first day of each calendar month in the original
term, in advance without demand and without setoff, in equal monthly installments. If the original term of
this Lease commences or terminates (other than by reason of Tenant's default) on a date other than the first
or last day, respectively, of an Accounting Period, Tenant's payment of such costs of insuring shall be
equitably pro-rated.
(c) Landlord may adjust the aforesaid amount at any tune during an Accounting Period to reflect
Landlord's actual cost of such insurance per rentable square foot of the total Shopping Center area, and
upon receipt of such notice Tenant shall commence payment of such increased sum and shall continue to
pay same until a subsequent adjustment is made hereunder.
(d) Although Tenant shall pay its share of the cost of insuring, as aforesaid, in addition to, and not
as a component of, its share of Operating Costs, for the purpose of Articles VIII ad XIX and Sections
13.02, 14.01 and 21.02 of this Lease, the words "Operating Costs" shall be deemed to include such shaze of
the cost of insuring.
ARTICLE VIII
SIGNS; AWNINGS; CANOPIES; FIXTURES; ALTERATIONS
14
SECTION 8.01. Signs, Awnings and Canopies.
(a) Tenant shall neither place nor maintain nor suffer to be placed or maintained on the exterior of
the Premises or on the glass of any window or door of the Premises which shall be visible from the exterior
thereof or within three (3) feet of any such glass (other than neatly lettered signs of reasonable size placed
on the floor of the display window identifying articles offered for sale and the price thereof) any sign,
awning, canopy, decoration, lettering, advertising matter or any other thing without in each instance fast
obtaining Landlord's written approval thereof; and Tenant further agrees to design and to maintain such
sign, decoration, lettering, advertising matter or other thing as may be approved in good condition and
repair at all times in compliance with the requirements of the "Sign Regulations" attached hereto, made
part hereof and marked Exhibit "C".
(b) Tenant shall not paint or decorate any part of the exterior of the Premises.
(c) Tenant further agrees that all articles and the arrangement, style, color and general
appearance thereof in the interior of the Premises which shall be visible from the exterior thereof,
including, but not limited to, window displays, advertising matter, signs, merchandise and store fixtures,
shall be maintained in the Premises so as to be in keeping with the character and standards of the Shopping
Center.
SECTION 8.02. Trade Fixtures.
All trade fixtures, signs and other personalty hereafter installed by Tenant in the Premises shall be
new or reconditioned and "like new," shall be and remain the property of Tenant and shall be removed by
Tenant at the expiration or earlier termination of this Lease provided that: (a) Tenant shall not at such time
be in default under this Lease and (b) Tenant shall promptly restore the damage done to the Premises by the
installation and/or removal thereof. Should Tenant fail to so remove Tenant's trade fixtures and/or to so
restore the Premises, Landlord may do so, collecting, at Landlord's option, the cost and expense thereon as
additional rent, upon demand. Any such trade fixtures which are not removed by Tenant at or prior to any
termination of this Lease including, but not limited to, a termination by Landlord pursuant to this Lease,
shall unless Landlord gives Tenant notice to remove any or all of such trade fixtures, be and become the
property of Landlord (without any obligation by Landlord to pay compensation for such trade fixtures). In
the event Landlord gives Tenant such notice to remove any or all of such trade fixtures, Tenant shall
promptly remove such of the trade fixtures as may be specified by Landlord in such notice.
Notwithstanding anything herein contained to the contrary or any decision of any court to the contrary, the
term "trade fixtures" shall not include any air-conditioning, heating, lighting, electrical and plumbing
equipment installed by Tenant in the Premises, nor any wiring or other apparatus related thereto.
SECTION 8.03. Alterations and Mandatory Refurbishment.
(a) Tenant may, without Landlord's consent, make alterations to the interior of the Premises
which do not alter, modify or in any other manner whatsoever affect the structural portions of the Premises
and/or the roof of the building of which the Premises shall form a part and/or the exterior of the Premises
(including but not limited to the storefront) and/or the structural integrity of the building of which the
Premises shall form a part, and/or the plumbing, electrical, heating, ventilating, air-conditioning, or
mechanical systems and installations in the Premises, provided that any such single alteration (or series of
series of such related alterations) does not involve a cost in excess of Five Thousand Dollars ($5,000.00).
Tenant agrees that it will not make any other alterations, improvements, additions or changes to the interior
or exterior of the Premises during the term of this Lease without in each instance obtaining Landlord's
prior written consent. Furthermore, Tenant will not, except for installation of fixtures or other work
specified on Tenant's approved plans and specifications referred to in Section 4.02 hereof or to the extent
permitted by the fast sentence of this Section 8.03(a), cut or drill into or secure any fixture, apparatus or
equipment of any kind to any part of the Premises without in each instance fast obtaining Landlord's
written consent. Together with each request for such consent, Tenant shall present to Landlord detailed
plans and specifications for such proposed alterations, improvements, additions or changes as required by
Section 4.02 hereof and Tenant shall comply with such section in performing such approved alterations.
15
1
(b) This paragraph intentionally deleted.
(c) Tenant agrees to maintain the premises in a good, business like condition as set up by the
standards of the Domino's Franchise.
ARTICLE lx
MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES
SECTION 9.01. Repairs and Maintenance by Tenant.
(a) Tenant shall at all times at its own expense keep and maintain all portions of the Premises in
good order and repair, and in a neat, safe, clean and orderly condition, including, but not limited to,
reasonable periodic painting and making all non-structural ordinary and extraordinary, foreseen and
unforeseen repairs and replacements to the Premises and its component systems. The foregoing sentence
shall obligate Tenant to repair, maintain and replace, without limitation, all entrances to the Premises, the
storefront, the glass in all doors and windows of the Premises, all interior portions of the Premises, all trade
fixtures, signs and walls thereof, as well as plumbing, electrical, sprinkler, heating, ventilation and air
conditioning systems, escalators and elevators, if any, mechanical systems, and sewer lines within the
Premises or under the floor slab thereof, including free flow to the main sewer line, as well as all other
apparatus or equipment installed by Tenant outside the Premises. Tenant shall not overload the electrical
wiring serving the Premises, and will install at its own expense (but only after obtaining Landlord's written
approval), any additional electrical wiring which may be required in connection with the Premises. If
Landlord, Agent or affiliates thereof, elect to provide heating, ventilating and air-conditioning inspection,
adjustment, cleaning and repair services to Tenant, Tenant shall utilize such services and pay for the same
at rates which are competitive within the same geographic area for similar services performed by others; if
Landlord elects not to perform such services, the Tenant shall contras for such services with a qualified
service contractor approved by Landlord, and annually shall submit to Landlord a copy of the service
contract .
(b) Tenant will repair promptly at its own expense any damage (whether strusural or non-
strusural) to the Premises caused by any construsion or alterations performed by Tenant or bringing into
the Premises any property for Tenant's use, or by the installation or removal of such property, regardless of
fault or by whom such damage shall be caused, unless caused solely by the negligence of Landlord or its
servals or employees.
SECTION 9.02. Structural Repairs.
(a) Except as otherwise provided by 9.01(b), structural columns, strusural portions of the floors
(excluding floor tile, carpet or other floor coverings), the roof of the Shopping Center and exterior walls
thereof will be repaired by Landlord provided Tenant gives Landlord notice specifying the need fair and
nature of such repairs; provided, however, if Landlord is required to make any repairs to such portions of
the Premises by reason, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's
agent, servants, employees, contrasors or subcontractors, or by reason of any unusual use of the Premises
by Tenant (whether or not such use is a permitted use hereunder), Landlord may colles the cost of such
repairs, as additional rent, upon demand. For the purpose of this Lease, any difference in floor level,
shifting of floor slab, or deviation in finished floor height resulting from the inser4ion or construsion of an
expansion joint or strip in the floor slab shall not be deemed a strusural defect requiring repair by
Landlord, but rather, a normal construction practice which shall be Tenant's responsibility to appropriately
plan for in its construction and use of the Premises. The provisions of this subsesion shall not apply in the
case of any casualty or condemnation in which event the provisions of Articles XVI or XVII, as the case
may be, shall control.
(b) If, without Landlord's prior consent, Tenant performs any alterations, additions,
improvements, changes, affixations of chattels or other work which affects the strusural portions of the
16
Premises and/or the roof of the building of which the Premises are a part and/or that portion of the exterior
of the Shopping Center which Landlord is obligated to repair pursuant to Section 9.02(a) or which affects
the structural integrity of the building of which the Premises shall form a part, such action by Tenant shall
release and discharge Landlord from such repair obligation and thereafter Tenant agrees to be solely
responsible for the maintenance, repair and replacement of any or all such structural portions, roof, exterior
and building which have been affected; provided, in the event Tenant shall default in the performance of
such responsibilities to the satisfaction of Landlord, in addition to Landlord's other remedies under this
Lease, at law or in equity, Landlord may (but shall not be obligated to do so) cure such default at Tenant's
cost without any liability of Landlord, its agents, servants, employees, contractors or subcontractors for
damage to Tenant's merchandise, fixtures or other property or to Tenant's business by reason thereof.
SECTION 9.03. Surrender of Premises.
(a) At the expiration or earlier termination of the term of this Lease, Tenant shall peaceably
surrender the Premises, broom clean, free of debris, in good order, condition and state of repair as required
hereby, ordinary wear and tear excepted. Tenant shall surrender all keys for the Premises to Landlord and
shall notify Landlord in writing of all combinations of locks, safes and vaults, if any, in the Premises.
Tenant shall comply with the provisions of Section 8.02 respecting the removal of its trade fixtures before
surrendering the Premises.
(b) All alterations, improvements, additions or changes made by Tenant and all air-conditioning,
heating, lighting, electrical and plumbing equipment installed by Tenant shall remain upon the Premises at
the expiration or earlier termination of the term of this Lease and shall become the property of Landlord
immediately upon the~installation thereof and shall remain the property of the Landlord without any
obligation of Landlord to pay compensation therefor.
ARTICLE X
INDEMNIFICATION; SUBROGATION
SECTION 10.01. Indemnification and Waiver of Claim.
(a) Tenant will defend and will indemnify Landlord and Agent and save them harmless from and
against any and all claims, actions, damages, liability and expenses (including, but not limited to,
reasonable attorneys' fees and disbursements) in connection with the loss of life, personal injury or damage
or business arising from, related to, or in connection with the performance of Tenant's Work, the tenants
occupancy of the Premises or proximity caused by act or omission of Tenant, its contractors,
subcontractors, subtenants, licensees, or concessionaires, or Tenants respective agents, servants or
employees. Tenant shall not, however, be liable for damages or injury occasioned by the negligence or
willful acts of Landlord, Agent or their agents, employees, or servants, unless such damage or injury arises
from perils against which Tenant is required by this Lease to insure. Tenant shall also pay all costs,
expenses and reasonable attorneys' fees that may be expended or incurred by Landlord and/or Agent in
successfully enforcing the covenants and agreements of this Lease.
(b) Except to the extent of such injury or damage is caused by the negligent acts or omissions of
Landlord, Agent or their respective agents, servants, and employees, neither Landlord, Agent nor their
respective agents, servants, employees or contractors shall be liable for, and Tenant, in consideration of
Landlord's execution of this Lease, hereby releases all claims for loss of life, personal injury or damage to
' property or business sustained by Tenant or any person claiming through Tenant resulting from any fire,
accident occurrence or condition in or upon the Shopping Center or any part thereof (including, without
limitation, the Premises and the building of which the same is a part), including, but not limited to, such
' claims for loss of life, personal injury or damage resulting from (1) any defect in or failure of plumbing,
. heating or air conditioning equipment, electrical wiring or installation thereof, water pipes, stairs, railings
or walks; (2) any equipment or appurtenances being out of repair; (3) the bursting, leaking or running of
any tank, washstand, water closet, waste pipe, drain or any other pipe or tank in, upon or about the
17
l
Shopping Center, (4) the backing up of any sewer pipe; (5) the escape of steam or hot water, (6) water,
snow or ice being upon or coming through the roof or any other place upon or near the Premises or the
building of which the same is a part or otlierwise; (7) the falling of any fixture, plaster, ceiling file or
stucco; (8) bmkea glass; {9) any act or omission of other tenants or other occupants of the Shopping
Center, and {10) This paragraph intentionally deleted. The foregoing waiver and release is intended by
Landlord and Tenant to be absolute, unconditional and without exception and to supersede any specific
repair obligation imposed upon Landlord hereunder.
SECTION 10.02. Subrogation.
In the event the Premises or its contents are damaged or destroyed by fire or other insured
casualty, (a) Landlord, to the extent of the coverage of Landlord's policies of fin insurance with extended
coverage endorsements, herby waives its rights, if any, against Tenant with respect to such damage or
destruction, even if said fire or other casualty shall have been caused, in whole or in part, by the
negligence of Tenant, its agents, servants or employees, and (b) Tenant, to the extent of the coverage of
Tenant's policies of fire insurance with extended coverage, herby waives its rights, if any against
Landlord with respect to such damage or destruction, even if said fire or other casnalty shall have been
caused, in whole or in part, by the negligence of Landlord, its agents, servants, or employees; Provided,
however, such waivers of subrogation shall only be effective with respect to loss or damage occurring
during such time as Landlord's or Tenant's policies of fire insurance with extended coverage endorsements
(as the case may be) shall contain a clause or endorsement providing in substance that the aforesaid waiver
of subrogation shall not prejudice the type and amount of coverage under such policies or the right of
Landlord or Tenant (as the case may be) to recover thereunder. Ii; at anytime, Landlord's or Tenant's
insurance carrier refuses to write insurance which contains a consent to the- foregoing waiver of
subrogation, Landlord or Tenant, as the case may be, shall notify the other party thereof in writing, and
upon the giving of such notice, the provisions of this Section shall be null and void as to any casualty
which occurs after such notice. If Landlord's or Tenant's insurance carrier shall make a charge for the
incorporation of the aforesaid waiver of subrogation in its policies, then the party requesting the waiver
shall promptly pay such charge to the other party, upon demand. In the event the party requesting the
waiver fails to pay such charge upon demand, the other party shall be released of its obligation to supply
such waiver.
ARTICLE XI
INSURANCE
SECTION 11.01. Insurance.
(a) Tenant will keep in force in companies who are acceptable to Landlord and licensed to do
business in the state when the Shopping Center is located, at Tenant's expense, at all times during the term
of this Lease and during such other times as Tenant occupies the Premises or any part thereof:
(1) Comprehensive general liability insurance with respect to the Premises, the
sidewalks, if any, abutting and adjoining the Premises, and the business operated by Tenant and any
subtenants, licensees and concessionaires of Tenant in or from the Premises with minimum limits of One
Million Dollars (51,000,000.00) on account of bodily injuries to or death of one person, and 'I~vo Million
Dollars (52,000,000.00) on account of bodily injuries to or death of more than one person as the result of
any one accident or disaster, and property damage insurance with minimum limits of One Hundred
Thousand Dollars (5100,000.00). If the nature of Tenant's operation is such as to place any or all of its
employees under the coverage of local worker's compensation or similar statutes, Tenant shall also keep in
force, at its own expense, worker's compensation or similar insurance affording statutory coverage and
containing statutory limits. Such liability insurance shall, in addition, extend to any liability of Tenant
arising out of the indemnities provided in Section 10.01 hereof.
18
(2) Fire insurance, with standard broad form extended coverage endorsement covering
(a) all'of Tenant's stock in trade, trade fixtures, furniture, furnishings, such equipment as is not affnced to
the Premises, and (b) Tenant's interest in all of the improvements and betterments installed in the Premises
by Tenant, in each case to the extent of at least eighty percent (80%) of their collective insurable value,
without co-insurance.
(3) Such other types of insurance (excluding rent insurance in favor of Landlord) and
such additional amounts of insurance as, in Landlord's judgment, are necessitated by good business
practice.
(b) Within ten (10) days of Landlord's request, Tenant will deposit with Landlord policies of
insurance required by the provisions of this Section 11.01, or certificates thereofy together with satisfactory
evidence of the payment of the required premium or premiums thereof. The insurance required hereby
may be maintained by means of a policy or policies of blanket insurance so long as the provisions of this
Section are fully satisfied.
(c) If Tenant fails to provide Landlord with evidence of adequate insurance as descn'bed in
Section 11.01(a) and (b) above, then Landlord shall have the option to secure said insurance coverage and
charge Tenant for the actual cost of said insurance plus a handling charge of twenty-five percent (25%) of
Landlord's cost of the premium.
SECTION 11.02. Insurance Provisions.
All policies of insurance required to be carried by Tenant shall provide that the policy shall not be
subject to cancellation, termination or change except after thirty (30) days prior written notice to Landlord
and the policy referred to in Section 11.01 (a) (1) shall name Landlord as an additional insured.
SECTION 11.03. Effect on Insurance.
(a) Tenant will not do, omit from doing, suffer to be done, or keep or suffer to be kept anything
in, upon or about the Premises which will violate the provisions of Landlord's policies insuring against loss
or damage by fire or other hazards or which will adversely affect Landlord's fire or liability insurance
premium rating or which will prevent Landlord from procuring such policies from companies acceptable to
Landlord at normal rates. If Tenant's acts or omissions as above stated result the premium rate of fire or
other insurance on the Premises or other property of the Shopping Center to be increased, Tenant will pay
the amount of such increase as additional rent upon Landlord's demand. In addition, Landlord may, at its
option, rectify the condition existing on the Premises which caused or was a contnbuting cause of the
increased premium rate and may charge the cost of such action to Tenant as additional rent, payable on
demand. In determining whether increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization making the insurance rate on the Premises, showing the various
components of such rate, shall be conclusive evidence of the several items and charges which make up the
fire insurance rate on the Premises.
(b) If for any reason whatsoever Tenant fails to provide and keep in force any or all of the
insurance policies set forth in Section 11.01 hereof:, then in such event Tenant shall indemnify and hold
Landlord harmless against any loss which would have been covered by such insurance.
ARTICLE XII
UTILITIES
SECTION 12.01. Utilities.
(a) Tenant shall be solely responsible for and promptly pay all charges for heat, water, electricity,
sewer rents or charges, and any other utility used or consumed in the Premises or in providing heating and
air-conditioning to the Premises, including in each instance, all sales and other taxes applicable to the sale
or supply of such utilities, said responsibility commencing on the earlier of the commencement date or the
date Tenant first enters the Premises for any reason. Should Landlord elect or be required to supply or
19
make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for same
at reasonable costs reflecting the Tenant's use and consumption of the utility, as additional rent, every
month in the term hereof.
(b) In the event that Tenant does not have a water meter installed in the Premises, Tenant will pay
to Landlord, as additional rent, every month during the term of this Lease the minimum charge for the size
of the water line installed in the Premises in accordance with the rates established from time to time by the
company or authority supplying water to the Premises.
(c) In the event the local authority, municipality, utility or other body collects for the water and/or
sewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants and agrees to pay the
water and sewer rent charge 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 realty of which they
are a part, 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.
(d) In no event shall Landlord be liable to Tenant in damages or otherwise for any interruption,
curtailment or suspension of any of the foregoing utility services in the event to of a default by Tenant
under this Lease or due to repairs, action of public authority, strikes, acts of God or public enemy, or any
other cause.
SECTION 12.02. Application for Utilities.
Tenant shall make all appropriate applications to the local utility companies at such times as shalt
be necessary to insure utilities being available at the Premises no later than the commencement date and
pay all required deposits, connection fees and/or chazges for meters within the applicable time period set by
the local utility company.
SECTION 12.03. Operation of Heating and Air-Conditioning.
Tenant must install, and operate heating and cooling equipment to maintain store temperatures at
such temperatures as will prevent the freezing or bursting of pipes and the draining of heated and chilled
air from any existing or future enclosed sections of the Shopping Center.
SECTION 12.04. Utility Charge Defined.
All sums to be paid by Tenant in accordance with this Article XII aze collectively herein referred
to as the "Utility Charge: '
ARTICLE XIII
ESTOPPEL CERTIFICATE; SUBORDINATION; ATTORNMENT
SECTION 13.01. Execution of Estoppel Certificate.
At any time, and from time to time, upon the written request of Landlord or any mortgagee,
Tenant, within twenty (20) days of the date of such written request, agrees to execute and deliver to
Landlord and/or such mortgagee, without charge and in a form satisfactory to Landlord and/or such
mortgagee, a written statement: (a) ratifying this Lease; (b) confirming the commencement and expiration
dates of the term of this Lease; (c) certifying that Tenant is in occupancy of the Premises, and that the
Lease is in full force and effect and has not been modified, assigned, supplemented or amended except by
such writings as shall be stated; (d) certifying that all conditions and agreements under this Lease to be
satisfied or performed by Landlord have been satisfied and performed except as shall be stated; (e)
certifying that Landlord is not in default under the Lease and there are no defenses or offsets against the
enforcement of this Lease by Landlord, or stating the defaults and/or defenses claimed by Tenant; (f)
reciting the amount of advance rent, if any, paid by Tenant and the date to which such rent has been paid;
20
(g) reciting the amount of security deposited with Landlord, if any, and (h) any other information which
Landlord or the mortgagee shall reasonably require.
SECTION 13.02. Failure to Ezecute Estoppel Certificate.
The failure of Tenant to execute, acknowledge and deliver to Landlord and/or any mortgagee a
statement in accordance with the provisions of Section 13.01 above within the period set forth in section
13.01 shall constitute an acknowledgment by Tenant which may be relied upon by any person holding or
intending to acquire any interest whatsoever in the Premises or the Shopping Center that this Lease has not
been assigned, amended, changed or modified, is in full force and effect and that the Fixed Minimum Rent,
Tax Rent, Tenant's share of Operating Costs, Utility Charge, Percentage Rent and additional rent have
been duly and fully paid not beyond the respective due dates immediately preceding the date of the request
for such statement and shall constitute as to any persons entitled to rely on such statements a waiver of any
defaults by Landlord or defenses or offsets against the enforcement of this Lease by Landlord which may
exist prior to the date of the written request, and/or Landlord, at its option, may treat such failure as a
Deliberate Event of Default.
SECTION 13.03. Subordination and Attornment.
Tenant agrees: (a) that, except as hereinafter provided, this Lease is, and all of Tenant's rights
hereunder are and shall always be, subject and subordinate to any first mortgage, ground lease pursuant to
which Landlord has derived its interest in the Shopping Center, installment sales agreement or other
instrument of encumbrance heretofore or hereafter placed upon any or all of Landlord's Lessors or
Landlord's estate in the Shopping Center and all renewals, replacements, consolidations, amendments and
extensions thereof (collectively called "Mortgage") and to all advances made or to be made thereunder and
to the interest thereon; and (b) that in case Landlord's interest under the Mortgage shall terminate for any
reason and if the holder of any such Mortgage ("Mortgagee") or if the grantee of a deed in lieu of
foreclosure, or. if the purchaser at any foreclosure sale or at any sale under a power of sale contained in any
Mortgage shall at its sole option so request, Tenant will attorn to and recognize such Mortgagee, grantee
or purchaser, as the case may be, as Landlord under this Lease for the balance then remaining of the term
of this Lease, subject to all terms of this Lease; and (c) that the aforesaid provisions shall be self operative
and no further instrument or document shall be necessary unless required by any such Mortgagee, grantee
or purchaser. Notwithstanding anything to the contrary set forth above, any Mortgagee may at any time
subordinate its Mortgage to this Lease, without Tenant's consent, by execution of a written document
subordinating such Mortgage to this Lease to the extent set forth therein, and thereupon this Lease shall be
deemed prior to such Mortgage to the extent set forth in such written document, without regard to their
respective dates of execution, delivery and/or recording and in that event, to the extent set forth in such
written document, such Mortgagee shall have the same rights with respect to this Lease as though this
Lease had been executed and a memorandum thereof recorded prior to the execution, delivery and
recording of the Mortgage and as though this Lease had been assigned to such Mortgagee. Should
Landlord or any Mortgagee, grantee or purchaser desire confirmation of either such subordination or such
attornment, as the case may be, Tenant upon written request, and from time to time, will execute and
deliver without charge and in form satisfactory to Landlord, the Mortgagee, grantee or purchaser all
instnunents and/or documents in recordable form that may be requested to acknowledge such
subordination and/or agreement to attorn.
ARTICLE XIV
ASSIGNMENT AND SUBLETTING
SECTION 14.01. ,Assignment and Subletting.
(a) Tenant shall not voluntarily, involuntarily, or by operation of law, assign, transfer, mortgage
or otherwise encumber (herein collectively referred to as an "assignment") this Lease or any interest of
21
1
Tenant herein, in whole or in part, nor sublet the whole or any part of the Premises, nor permit tlae Prcmises
or any part thereof to be used or occupied by others, without first obtaining in each and every instance the
prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed. Any
consent by Landlord to an assignment or subletting or use of occupancy by others shall be held to apply
only to the specific transaction thereby authorized and shall not constitute a waiver of necessity for such
consent to any subsequent assignment or subletting or use by occupancy by others, including, but not
limited to a subsequent assignment or subletting by any trustee, receiver or liquidator, nor shall the
references anywhere in this Lease to subtenants, licensees and concessionaires be construed as a consent by
Landlord to an assignment. Tenant shall pay to Landlord monthly, as additional rent, the excess of the
consideration received during such month of the sublease over the then current rental. Tenant shall pay to
Agent the sum of Five Hundred Dollars ($500.00), in advance, to defray Agent's administrative costs,
overhead and counsel fees in connection with the consideration, review or document preparation of any
consent to assignment or subletting, such sum to be paid at the time Tenant requests Landlord's execution
of such document. This fee will be waived so long as the occupant of the premises remains a Domino's
Franchisee.
(b) If Tenant is a partnership and if at any time during the term of this Lease any person who at
the time of the execution of this Lease owns a general partner's interest ceases to own such general
partner's interest, such cessation of ownership shall constitute an assignment of this Lease for all purposes
of this Section.
(c) Any sublease or assignment by Tenant, or occupancy of Premises by a party other than
Tenant, without Landlord's express written approval, may be treated as a Deliberate Event of Default.
ARTICLE XV
PROMOTING THE CENTER
SECTION 15.01. Promotion Fund.
(a) Landlord has elected to provide or cause to be provided an ongoing program of promotional
events which, in Landlord's judgment, will serve to promote the Shopping Center and attract customers
thereto. Landlord has established a separate bank account into which Landlord shall deposit the
contributions referred to herein to be made by Tenant and other tenants, the aggregate of such funds on
hand from time to time being referred to herein as the "Promotion Fund." Tenant shall pay the Landlord,
as Tenant's contribution to the Promotion Fund, an annual charge ("Promotion Charge") in the amount
specified in the paragraph of Part I of the Lease captioned "Promotion," such amount to be increased on
January 1st of each year during the term hereof by six percent (6%) of the previous year's payment. The
Promotion Fund shall be used to pay all costs and expenses associated with the formation and carrying out
of an ongoing program for the promotion of the Shopping Center, which program may include, special
events, shows, displays, signs, seasonal events, and other activities designed to attract customers to the
Shopping Center, including the purchase of electronic, print and other advertising. In connection with the
operation of the Promotion Fund, Landlord shall have the right to contract for or otherwise employ a
professional promotional consultant which, in Landlord's judgment, is necessary to administer the
Promotion Fund and such promotional activities to be implemented by Landlord, and consultant shall be
under the exclusive control and supervision of Landlord. The Promotion Fund may be used to defray the
cost of administration of such marketing activities including the salary or payments and reimbursements
due consultant ,advertising, travel expenses, and other business expenses.
(b) If requested to do so by Landlord, Tenant shall submit to Landlord or Landlord's designee
advertising material to be used in connection with the Promotion Fund, such materials to be submitted in
such format and at such times as shall be designated from time to time by Landlord or such designee.
Neither Landlord nor Landlord's designee shall have control over thc contents of any such advertising
copy submitted by Tenant with regard to sales prices of merchandise or the cost of services offered, nor
shall either be responsible for the content of any advertising copy supplied by Tenant or prepared by
Landlord or Landlord's advertising agency, organization or personnel, including typographical errors.
Should Tenant fail to submit requested materials as specified herein on a timely basis, Landlord may, but
~~
shall not be obligated to, insert an advertisement indicating Tenant's business or trade name and a
description of Tenant's business or, in the alternative, not submit any advertising on behalf of Tenant for
the particular advertising campaign then being conducted. In the event Tenant fails to timely submit any
required advertising copy, Landlord may treat such failure as an Event of Default under this Lease.
SECTION 15.02. Merchants' Association.
'This paragraph intentionally deleted.
SECTION 15.03. Payment of Obligations to the Promotion Fund.
All sums required to be paid by Tenant pursuant to this Article XV shall be deemed "additional
rent," shall be payable with each monthly installment of Fixed Minimum Rent, without demand, deduction
or offset, shall be prorated for partial time periods during the term hereof and for the purposes of any other
articles of this Lease, shall be collectively referred to as the Promotion Charge.
ARTICLE XVI
DESTRUCTION OF PREMISES
SECTION 16.01. Total or Partial Destruction.
(a) If the Premises shall be damaged by fire or other casualty covered by Landlord's policies of
fire and broad form extended coverage insurance but are not thereby rendered untcnantable in whole or in
part, subject to the limitations hereafter set forth, Landlord, at its own expense, shall cause such damage to
be repaired, and the rent shall not be abated. If by reason of such occurrence, the Premises shall be
rendered untenantable in whole or in part, subject to the limitations hereinafter set forth, Landlord, at its
own expense, shall cause the damage to be repaired within 6 months and the Fixed Minimum Rest shall be
abated proportionately as to the portion of the Premises rendered untenantable. If the Landlord, at its
option, decides not to repair and restore the Premises, Landlord shall have the right, to be exercised by
notice in writing delivered to Tenant within sixty (60) days from and after the occurrence of such casualty,
to cancel and terminate this Lease. In no event shall Landlord be obligated to expend for any repairs or
reconstruction pursuant to this Section 1b.01 an amount in excess of the insurance proceeds recovered by it
and allocable to the damage to the Premises after deduction therefrom of Landlord's reasonable expenses
in obtaining such proceeds and any amounts required to be paid to Landlord's mortgagee. Nothing in this
section shall be construed to permit the abatement, in whole or in part, of the Percentage Rent, and the
calculation of Percentage Rent shall be governed solely by Section 2.01(e) hereof.
(b) If the Landlord is required to repair or reconstruct the Premises pursuant to the provisions of
this Section 16.01, its obligation shall be limited to the construction of the structural demising walls
(without drywall) and roof of the Premises. Tenant shall submit to Landlord for Landlord's approval
detailed plans and specifications for all other work not required to be done by Landlord and upon approval
of such plans and specifications and, within fifteen (15) days after the Tenant has been notified that the
Landlord has completed its work on the Premises, Tenant shall re-enter the Premises and therein diligently
pursue to completion such work at Tenant's expense and immediately thereafter commence doing business
all in accordance with the provisions of this Lease. Landlord shall not be liable for delays occasioned by
adjustment of losses with insurance carriers or by any other cause, so long as Landlord shall proceed in
good faith.
(c) Notwithstanding anything set forth herein to the contrary, Tenant shall be responsible for all
repairs and replacements of damage and/or destruction of the Premises necessitated by burglary or
attempted burglary, or any other illegal or forcible entry into the Premises.
(d) Tenant covenants that it will give notice to Landlord of any accident or damage, whether such
damage is caused by insured or uninsured casualty, occurring, in, on or about the Premises within seventy-
two (72) hours after Tenant has knowledge of such accident or damage. If Tenant breaches its covenant set
forth in this Section 16.01(d), Landlord in addition to all other rights and remedies under this Lease, at law
or in equity shall, at its option, be relieved of any of its obligations under Section 16.01.
23
ARTICLE XVII
EMINENT DOMAIN
SECTION 17.01. Tota! Condemnation.
If the whole of the Premises shall be taken by any public or quasi-public authority under the
power of eminent domain, condemnation or expropriation or in the even to of a conveyance in lieu thereof,
then this Lease shall terminate as of the date on which possession of the Premises is required to be
surrendered to the condemning authority, and Tenant shall have no claim against Landlord or the
condemning authority for the value of the unexpired tens of this Lease.
SECTION 17.02. Partial Condemnation.
If any part of the Premises shall be so taken or conveyed and if such partial taking. or conveyance
shall render the Premises unsuitable for the business of the Tenant, then the term of this Lease shall cease
and terminate as of the date on which possession of the Premises is required to be surrendered to the
condemning authority and Tenant shall have no claim against Landlord or the condemning authority for the
value of any unexpired term of this Lease. In the event such partial taking or conveyance is not extensive
enough to render the Premises unsuitable for the business of Tenant, this Lease shall continue in full force
and effect except that the Fixed Minimum Rent and the Percentage Rent Gross Sales Base shall cacti be
reduced in the same proportion that the floor area of the Premises so taken or conveyed bears to such floor
area immediately prior to such taking or conveyance such reduction commencing as of the date Tenant is
required to surrender possession of such portion. With respect to the days during which the Premises are
not open for business, the calculation of Percentage Rent shall be adjusted in accordance with Section
2.01(e) hereof. Landlord shall promptly restore the Premises, to the extent of condemnation proceeds
available for such purpose, as nearly as practicable to a condition comparable to their condition at the time
of such condemnation, less the portion lost in the taking or conveyance, and Tenant shall promptly make.
all necessary repairs, restoration~and alterations of Tenant's fixtures, equipment and furnishings and shall
promptly re-enter the Premises and commence doing business in accordance with the provisions of this
Lease. For purposes of determining the amount of funds available for restoration of the Premises from the
condemnation award, said amount will be calculated from that part of the award which remains after
payment of Landlord's reasonable expenses incun-ed in recovering same and after payment of any amounts
due to any mortgagee of Landlord, in such manner to represent that portion of the remaining sum so
available (excluding any award or other compensation for land) which is equitably allocable to the
Premises.
SECTION 17.03. Partial Condemnation of Shopping Center.
If (a) more than one third (1/3) of the floor area of the buildings of which the Premises are a part
or more than one-third (1/3) of the leasable floor area of the Shopping Center or more than one-third (1/3)
of the Common Areas shall be so taken or conveyed or (b) if any part of the parking area of the Shopping
Center is so taken or conveyed, and as a result of such partial taking or conveyance the size, layout or
location of the remaining parking facilities will violate the requirements of the applicable zoning or similar
law (or any permitted variance or exception thereto), then in any or all such events notwithstanding the fact
that the Premises are not so Taken or conveyed, Landlord shall have the right and power, at its option to be
exercised by written notice to Tenant, to terminate this Lease effective either the date title vests in the
condemning authority or the date Landlord is required to deliver possession of the part so taken or
conveyed; provided, however, in the event of taking or conveyance described in clause (b) if Landlor{
shall take immediate steps towards eliminating such violation, this Lease shall be unaffected and remain in
24
full force and effect. In any event, Tenant shall have no claim against Landlord or the condemning
authority for the value of any unexpired term of this Lease.
SECTION 17.04. Landlord's llamages.
In the event of any condemnation or taking as hereinbefore provided, whether whole or partial,
the Tenant shall not be entitled to any part of the award as damages or otherwise for such condemnation
and Landlord and any mortgagee of Landlord are to receive the full amount of such awazd as their
respective interests may appeaz. Tenant hereby expressly waives any right or claim to any part therefor
and assigns to Landlord any such right or claim to which Tenant might become entitled.
SECTION 17.05. Tenant's Damages.
Although all damages in the event of any condemnation are to belong to the Landlord and any
mortgagee of Landlord as aforesaid, whether such damages are awarded as full compensation for
diminution in value of the leasehold or to the fee of the Premises, Tenant shall have the right to the extent
that same shall not diminish the Landlord's or such mortgagee's award to claim and recover from the
condemning authority, but not from Landlord or such mortgagee, such compensation as may be separately
awarded or recoverable by Tenant, under the applicable eminent domain code in effect where the Shopping
Center is located, in Tenant's own right for or on account of, and limited solely to, any cost to which
Tenant might be put in removing Tenant's merchandise, furniture, f-xtures and equipment.
ARTICLE XVIII
BANKRUPTCY
SECTION 18.01. Bankruptcy.
(a) If there shall be filed against Tenant or any guarantor or surety of this Lease or any of
Tenant's obligations under this Lease, in any court, pursuant to any statute either of the United States or of
any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver
or trustee of all or any portion of Tenant's or such guarantor's or swety's property, and if, within thirty
(30) days thereof, Tenant or such guarantor or swety fails to secwe a discharge thereof, or if Tenant or
such guarantor or surety shall voluntarily file any such petition or make an assignment for the benefit of
creditors or petition for or enter into such an arrangement, then this Lease, at the option of Landlord, may
be canceled or terminated, in which event neither Tenant nor any person claiming through or under Tenant
by virtue of any statute or of an order of any court shall be entitled to acquire or remain in possession of the
Premises, as the case may be, and Landlord shall have no further liability hereunder to Tcnant or such
person, and Tenant or any such person shall forthwith quit and surrender the Premises. If this Lease shall
be so canceled or terminated, Landlord, in addition to the other rights and remedies of Landlord under
Article XVIII hereof, or contained elsewhere in this Lease, or by virtue of any statute or rule of law, may
retain as liquidated damages any rent, secwity deposit and nay other money received by Landlord from
Tenant or others on behalf of Tenant.
(b) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy
Code, 11 U.S.C. SS 101 et seq. (the "Banlmtptcy Code"), fifty percent (50%) of any and all monies or
other consideration payable or otherwise to be delivered in connection with such assignment shall be paid
or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant, within the meaning of the Bankruptcy Code. Any monies or
other consideration constituting Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to
Landlord.
(c) Any person or entity to which this Lease is assigned pursuant to the provisions of the
Aankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations
?5
~ /` i
arising under this Lease on or after the date of such assignment. Any such assignee shall, upon the request
of Landlord, forthwith execute and deliver to Landlord an instrument, in form and substance acceptable to
Landlord, confirming such assumption.
(d) In addition to Landlord's right to approve or disapprove the proposed sublease or assignment,
as hereinbefore set forth, Landlord shall have the right, to be exercised by giving notice to Tenant within
thirty (30) days after receipt of Tenant's request to assign or sublet, to recapture the Premises, or portion
thereof described in the proposed sublease or assignment. If notice of such recapture is given, it shall serve
to cancel and terminate this Lease with respect to the proposed sublease or assignment space, or, if the
proposed sublease or assignment covers the entire Premises and term, it shall serve to cancel and terminate
the Lease, in either case as of the thirtieth (30th) day after the date of Landlord's notice and as fully and
completely as if that date had been definitely fixed as the expiration of the term of this Lease. If this Lease
be canceled pursuant to the term hereof with respect to less than the entire Premises, the Fixed Minimum
Rent shall be adjusted on the basis of the proportion of the total area retained by Tenant to Tenant's total
area originally demised hereby, the Lease so amended shall continue thereafter in full force and effecK. The
failure of Landlord to exercise its right of recapture shall not be construed in any manner to be an approval
of Tenant's request to assign or sublet, such approval to be effective only if given in writing by Landlord to
Tenant.
ARTICLE XIX
EVENTS OF DEFAULT; LANDLORD'S REMEDIES
SECTION 19.01. Events of Default
The following shall constitute Events of Default:
(a) If Tenant defaults in the payment of any sum of money (whether Fixed Minimum Rent, Tax
Rent, Tenant's proportionate share of Operating Costs, Promotion Charge, additional rent or otherwise) '~ ~ 7
when due and such default shall continue for ten (10) days after the date of written notice from Landlord to
Tenant.
(b) Except as to the acts, defaults, omissions and/or occurrences specified in subsections (a), (c)
and (d) of this Section 19.01 or those characterized, defined, denoted, or identified in this Lease as
Deliberate Events of Default, if Tenant defaults in fulfilling any of the other covenants of this Lease on
Tenant's part to be performed hereunder and such default shall continue for the period within which
performance is required to be made by specific provision of this Lease, or, if no such period is provided,
for twenty (20) days after the date of written notice from Landlord to Tenant specifying the nature of said
default, or, if the default so specified shall be of such a nature that the same cannot be reasonably cured or
remedied within said twenty (20) day period, if Tenant shall not in good faith have commenced the curing
or remedying of such default within such twenty (20) day period and shall not thereafter diligently proceed
therewith to completion.
(c) If any execution or attachment shall be issued against Tenant or any of Tenant's property and
shall not be discharged or vacated within ten (10) days after the issuance thereof.
(d) Any event described in Section 18.01 or Section 19.02.
SECTION 19.OZ. Deliberate Events of Default.
(a) Notwithstanding anything to the contrary set forth in this Lease, if Tenant shall (1) fail timely
to make payment of Fixed Minimum Rent, Tax Rent, Tenant's proportionate share of Operating Costs, the
Promotion Charge or fail tunely to deliver its monthly Gross Sales statements, in each case on the date such
payment or statement is due hereunder without regard to any Grace period and/or written notice otherwise
required from Landlord, and any such failure shall be repeated two (2) times in any period of twelve (12)
months; or (2 fail timely to perform any other covenant of this lease more than three (3) times in any
period of twelve (12) months, then notwithstanding that such failures shall have been timely cured, any
26
r
further similar failure within such twelve (12) month period shall be deemed to be a Deliberate Event of
default.
(b) Any default, act, omission or occurrence characterized, defined, denoted, or identified
elsewhere in this Lease as a Deliberate Event of Default shall also be a Deliberate Event of Default.
(c) If Tenant shall abandon the Premises whether they are vacant or not, or if the Premises shall
be permitted to become vacant.
(d) If Tenant shall remove, attempt to remove, or express or display any intention to remove any
of Tenant's goods or property of others from the Premises otherwise than in the ordinary and usually
course of business at any time (regardless of the day, or hour of the day or night, and regardless of whether
any sum of money payable under this Lease is then in arrears) without having paid and satisfied Landlord
for all sums of money which may become due during the entire term of this Lease (whether Fixed
Minimum Rent, Tax Rent, Tenant's proportionate share of Operating Costs, the Promotion Charge,
additional rent or otherwise). Any such removal shall be deemed conclusively to have been made
fraudulently or clandestinely with intent to prevent Landlord from distraining or realizing on such goods or
property.
(e) In the event of a Deliberate Event of Default, Landlord, without giving Tenant any notice and
without affording Tenant an opportunity to cure the default (Tenant hereby specifically waiving any right
of tender), may exercise any or all of its rights tinder this Lease in addition to those it may have at law or in
equity.
SECTION 19.03. Landlord's Remedy of Termination and Possession
(a) Upon or after any one or more Events of Default or Deliberate Event of Default which have
not been cured as set forth in Section 19.01 or Section 19.02 above, Landlord may, without notice,
terminate all services (including, but not limited to, the furnishing of utilities) and/or n-enter the Premises,
either by force or otherwise, and/or by summary proceedings or otherwise dispossess Tenant and the legal
representative of Tenant or other occupant of the Premises, and remove their effects and repossess and
enjoy the Premises, together with all alterations, additions and improvements, all without being liable to
prosecution or damages therefor. In the event of any entry or taking possession of the Premises as
aforesaid, the Landlord shall have the right, but not the obligation, to remove therefrom all or any pan of
the personal property located therein and may place the same in storage at a public warehouse at the
expense and risk of the Tenant and/or owner or owners thereof.
(b) Tenant hereby expressly waives the service of notice by Landlord of intention to re-enter or to
institute legal proceedings to that end, and any and all rights of redemption granted by or under any present
or future laws in the event of Tenant being evicted or dispossessed as a result of any Event of Default or
Deliberate Event of Default as described in Section 19.01 or Section 19.02 above.
SECTION 19.04. Confession of Judgment for Possession
(a) If an Event of Default or a Deliberate Event of Default occurs and is not cured as set forth in
Section 19.01 or Section 19.02 above, or upon failure of Tenant to vacate the Premises at the expiration of
the term of this Lease, Tenant hereby authorizes and empowers any Prothonotary or any attorney of any
coup of record to appear for Tenant and to confess judgment against Tenant and in favor of Landlord in an
amicable action of ejectment for the Premises and to issue writs of possession thereon, with costs of suit
including attorneys fees to be paid by Tenant. Such authority shall not be exhausted by one exercise
thereof, but judgments in ejectment may be confessed from time to time as often as may be necessary for
Landlord to obtain possession of the Premises in accordance with the terms of this Lease.
SECTION 19.05. Landlord's Remedy of iVloney Damages
(a) In the event of any Event of Default or Deliberate Event of Default which results in the
termination and/or dispossession by summary proceedings or otherwise as provided in Section 19.03 and
] 9.04 above, the Fixed Minimum Rent and all additional rent shall become due thereupon by Tenant to
Landlord and shall be paid up to the time of such re-entry, dispossession and/or expiration.
., ~.
~:.
(b) In the Event of any Default or Deliberate Event of Default, if Landlord's elects to not
terminate the Lease, T~:nant shall pay Landlord for each month of the balance of the-term, as liquidated
damages for the failure: of Tenant to observe and perform Tenant's covenants herein, the sum of: one
monthly installment of~Fixed Minimum Rent; plus one-twelfth (1/12th) of the annual average Percentage
Rent payable hereunder for the three (3) lease years immediately preceding (or for the entire preceding
portion of the term of This Lease if less than three (3) lease years); plus the monthly portion of the payment
of Tax Rent; plus the monthly payment of Tenant's proportionate share of Operating Costs; plus the
Promotion Charge. TI~e failure of Landlord to relet the Premises or any part of parts thereof shall not
release or affect Tenant's liability for damages.
(c) In the Ev~:nt of any Default or Deliberate Event of Default, Landlord may collect liquidated
damages from Tenant as described in Section 19.05 (b) above and may also attempt to relet the Premises.
Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the
Premises as Landlord, in Landlord's sole judgment, considers advisable and necessary for the purpose of
reletting the Premises; and the making of such alterations and/or decorations shall not operate or be
construed to be a termination of this Lease as described in Section 19.03 above. Landlord shall in no event
be liable for failure to relet the Premises. In the event that Landlord elects to attempt to relet the Premises,
additional compensatory damages shall be added to the monthly liquidated damages described in Section
19.05 (b) above. The ~:ompensatory damages due by Tenant to Landlord shall be those costs Landlord
actually incurs in connection with reletting, such as, but not necessarily limited to: advertising expenses;
brokerage commissions; attorneys' fees; costs of putting and keeping the Promises in good order for
showing to prospective; replacement tenants; and costs of preparing the Premises for reletting to a
prospective tenant. Compensatory damages may be invoiced by Landlord to Tenant at the convenience of
Landlord, and shall be payable by Tenant to Landlord within thirty (30) days thereafter.
(d) Any actian brought to collect the amount of deficiency for any month shall not prejudice in
any the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding, or
the rights of Landlord to elect to collect liquidated damages calculated by the formula set forth in Section
19.05(b) hereof.
SECTION 19.06. Confession of Judgment for Money
_ . (a) If an Event of Default or a Deliberate Event of Default occurs and is not cured as set forth in
Section 19.01 or Sectian 19.02 above, Tenant does hereby authorizes and empowers any. Prothonotary or
any attorney of any court of record to appear for Tenant and confess judgment against Tenant in favor of
Landlord for any determined amount to which Landlord would be entitled as damages under the provisions
of Article XIX hereof, including attorneys' fees and costs for collection of the"same. This authority shall
not be exhausted by oree exercise thereof, but judgment may be confessed from time to time and as often as
there is an occurrence of any Event of Default or a Deliberate Event of Default and Tenant fails to cure as
provided in Section 19.01 and Section 19.02 above.
SECTION 19.07. Additional Remedies for Landlord
(A) Mention in this Lease of any particulaz remedy shall not preclude Landlord from any other
remedies under this Lease, or now or hereafter existing at law or in equity or by statue.
SECTION 19.08. Waivers.
Tenant expressly waives:
(a) The benefit of all laws, now or hereafter in force, exempting any goods on the Premises, or
elsewhere, from distraint, ievy or sale in any legal proceedings taken by Landlord to enforce any rights
under this Lease.
(b) The benefit of all laws existing now or hereafter enacted regarding any limitation as to the
goods upon which, or the time within which, distress is to be made after removal of goods of the Tenant or
others from the Premises, and further relieves Landlord of the obligation of proving or identifying the
goods distrained, it being the purpose and intent of this provision that all goods of Tenant, whether upon
28
the Premises or not, shall be liable to distress for rent at any time after Tenant's default under this Lease,
including particularly, but not limited to those goods removed from the Premises clandestinely and
fraudulently, as defined above on this Lease.
(c) 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; and Tenant authorizes any Prothonotary or clerk 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.
(d) All rights relating to the Landlord-Tenant relationship under any law, ordinance or statue, to
the extent that they might limit Landlord's right to cause the distrained goods to be sold, Tenant now
specifically and knowingly authorizes Landlord to sell any goods distrained for rent at a public auction sale
to be held at any time at least seven (7) days after that distraint without appraisement and condemnation of
the goods, but upon five (5) days' notice to Tenant of the date, place and terms of sale, including
Landlord's right to purchase all or any of the property.
(e) If the Shopping Center is located in Pennsylvania, the right to three (3) months' notice and/or
fifteen (15) or thirty (30) days' notice required under certain circumstances by the Landlord and Tenant
Act of 1951, hereby agreeing that seven (7) days' notice shall be sufficient in either or any such case.
ARTICLE XX
SECURITY DEPOSIT
SECTION 20.01. Security Deposit.
(a) Landlord acknowledges receipt from Tenant of the sum set forth in Part I of the Lease to be
held as security for the payment of any rent and all other sums of money payable by Tenant under this
Lease and for the faithful performance of all covenants of Tenant hereunder. The amount of such security
deposit, without interest, shall be refunded to Tenant two (2) years after the commencement date of this
Lease, provided Tenant shall have made all such payments and performed all such covenants. Upon any
default by Tenant hereunder, all or part of such security deposit may, at Landlord's sole option, be applied
on account of such default, and thereafter Tenant shall restore the resulting deficiency in such security
deposit upon demand. Tenant hereby waives the benefit of any provision of law requiring such security
deposit to be held in escrow or in trust, and such security deposit shall be deemed to be the property of
Landlord and may be commingled with Landlord's other funds.
(b) Landlord may deliver the security deposit to any purchaser of Landlord's interest in the
Premises, in the event that such interest be sold, and thereupon Landlord shall be discharged from any
further liability with respect to such security deposit, and Tenant agrees to look solely to-such pwchaser for
the return of such security deposit.
ARTICLE XXI
ENVIRONMENTAL CONSIDERATIONS
SECTION 21.01. Definitions.
(a) For the purpose of this Article XXI of this Lease, the following definitions shall apply:
1. "Environmental Release": The term Environmental Release shall mean the releasing,
spilling, leaking, pumping, powing, emitting, emptying, discharging, injecting, escaping, leaching,
disposing, abandoning, discarding or dumping of any Toxic Substance from, on, into or about the Premises
or the Shopping Center_
2. "Municipal Waste": The term Municipal Waste shall have the meaning set forth in
the Pennsylvania Solid Waste Management Act, 35 P.S. s6018.103.
29
3. "'Remediation": Activities in connection with the clean-up of an Environmental
Release, including but not limited to sampling, analysis, excavation, removal, disposal and replacement of
soils, ground water and/or other materials, in accordance with the provisions of all applicable laws,
ordinances and regulations, now or hereafter enacted.
4. "Remediation Plan": The tenor Remediation Plan shall mean a written plan to effect
the Remediation of the Environmental Release which shall be prepared by an environmental engineer
acceptable to Landlord.
5. "Toxic Substance": The term Toxic Substance shall mean a "hazardous substance,"
"pollutant," or "contaminant," as such terms are now or hereafter defined in all applicable federal, state,
and local laws, ordinances or regulations now or hereafter enacted or amended, and any and ail other terms
which are or may be used in any or all applicable environmental laws now or hereafter enacted to define
prohibited or regulated substances.
(b) Tenant shall not use the Premises or any part thereof, or the Shopping Center, or any part
thereof for the purpose of treating, producing, handling, transferring, processing, transporting, disposing,
using or storing a Toxic Substance.
(c) Tenant and its agents, employees, contractors, licensees and invitees shall not cause or permit
to exist, as the result of intention or unintentional action or omission by one or more of them, an
Environmental Release.
(d) Notwithstanding the foregoing, Tenant may use normal amounts of cleaning materials and
office supplies in the ordinary course of Tenant's business in reasonable quantities and provided the same
are used, stored and disposed of in compliance with all applicable laws, ordinances and regulations, as now
or hereafter enacted.
(e) Tenant shall dispose, remove and/or arrange for the disposal and/or removal of its Municipal
Waste by a licensed Municipal Waste transporter or Municipal Waste disposal company approved by
Landlord, and which shall be operated in accordance with applicable laws, ordinances and regulations.
Tenant and its agents, employees, contractors, licensees and invitees shall not place or penmit the
placement of any Toxic Substance in any waste receptacle located in the Premises or Shopping Center, or
the plumbing or sewer systems of the Premises or the Shopping Center.
(f) If an Environmental Release is caused by Tenant as stated in subparagraph 3 above:
1. Tenant shall promptly notify Landlord and any and all governmental agencies
required by law to be notified; and
2. Tenant shall promptly submit to Landlord the Remediation Plan for Landlord's
approval. The Remediation Plan shall disclose a schedule and detailed description of Remediation
activities which shall include information as Landlord may request, including: (i) a plan for Remediation
which shall include all courses of action as may be necessary to obtain a certification from the
Commonwealth of Pennsylvania, Department of Environmental Protection and the Federal Environmental
Protection Agency, and any other appropriate local agency, that the Premises and/or Shopping Center have
been remediated in accordance with all applicable laws, ordinances and regulations, and to the satisfaction
of these agencies; (ii) reasonable safety measures; (iii) a plan to avoid interference with the operation of the
Shopping Center, or any part thereof, and the conduct of business therein, and; (iv) a plan to restore the
Premises and/or Shopping Center to the condition existing prior to the Environmental Release, including
the replacing of soils, landscaping, regrading, repaving and repairing the improvements. Tenant shall
modify the Remediation Plan as requested by Landlord.
3. Landlord may, in its sole discretion, (i) undertake all or part of the Remediation, at
Tenant's sole cost, or (ii) require that Tenant take all steps necessary to promptly remediate all or part of
the Environmental Release, in accordance with the Remediation Plan, which shall be performed by
environmental professionals approved by Landlord. Tenant shall, upon the request of the Landlord,
deposit with Landlord 125% of the cost of performance of the Remediation Plan, as reasonably estimated
by Landlord. Portions of the amount deposited with Landlord may, iiom time to time, be released by
Landlord to be applied to the cost of performance of the Remediation Plan.
4. Upon receipt, Tenant shall immediately submit to Landlord true and complete copies
of any correspondence between Tenant and any regulatory agency, concerning matters arising out of or
relating to an Environmental Release. in addition, Tenant shall keep Landlord fully informed of its
progress in complying with its obligations under this Article XXI of this Lease.
30
C_
5. Landlord shall have the opportunity to participate with Tenant in negotiations with
any governmental authorities involved in the Remediation, leading to the obtaining by Tenant of a
certification from such governmental agency that Tenant has remediated the Environmental Release to the
satisfaction of such agency.
6. Tenant shall obtain a certification from the Commonwealth of Pennsylvania
Department of Environmental Protection and the Federal Environmental Protection Agency, and any
appropriate local agency, certifying that Tenant has performed and satisfactorily completed the
Remediation in accordance with all applicable laws, ordinances and regulations, a copy of which shall be
promptly delivered to Landlord.
7. Tenant shall be responsible for the cost of repair or replacement of any part of the
Premises or the Shopping Center, and the fixtures, equipment, personalty, and installations thereon and
therein, necessitated by reason of the Remediation.
(g) Tenant shall comply with all applicable laws, ordinances and regulations of all governmental
authorities, as now or hereafter enacted, and shall be solely responsible for any necessary alterations or
renovations to the Premises, including but not limited to Remediation, structural renovations, or cessation
of activities necessary to comply with such laws, ordinances, and regulations.
(h) If any certification required in this Article XXI shall not be obtained prior to the expiration or
earlier termination of this Lease, then until such certification is obtained, Tenant shall be responsible for
and shall pay to Landlord an amount, for each day, equal to one-three hundred sixty-fifth of the aggregate
of the highest amount of Minimum Annual Rent and Additional Rent payable by Tenant in any Lease Year
during the five (5) year period immediately preceding, diminished by any rent or other revenues received
by Landlord by reason of the occupancy of the Premises during such period.
(i) Tenant represents and warrants that the plans and specifications to be submitted to an/or
heretofore submitted and approved by Landlord for the construction, decoration, improvement and/or
renovation of the Premises are in conformance with all applicable laws, ordinances and regulations of all
governmental authorities. Tenant shall, prior to commencement of construction, obtain all licenses,
permits and approvals necessary for construction of the Premises pursuant to the plans and specifications
approved by Landlord, and for the operation of the Premises as contemplated by this Lease, including all
land development requirements. All construction work performed by Tenant or its contractors shall be in
accordance with applicable laws, ordinances and regulations of the governmental authorities having
jurisdiction thereof.
(j) Except as otherwise allowed or provided herein, Tenant shall not use any Toxic Substance on
the Premises or the Shopping Center, other than those substances listed below, which shall be stored in
appropriate safety or protective containers and disposed of in the following amounts and frequencies in
accordance with all applicable laws, ordinances and regulations (If no listing is included hereunder, no
such use shall be permitted or allowed under any circumstances):
TOXIC SUBSTANCE USED STORAGE METHOD DISPOSAL METHOD
AMOUNT DISPOSED EPA/DER GENERATOR I.D. NUMBER
PER MONTH (if applicable)
Tenant shall give prior written notice to Landlord of any proposed changes in the above schedule, and
within thirty (30) days after Landlord's receipt of such notice, Landlord may approve or reject such
proposed change, in its sole discretion.
(k) The covenants, representations and warranties provided herein shall survive the expiration or
earlier termination of this Lease.
(1) Tenant shall pay, defend, indemnify, and hold harmless Landlord from and against any and all
claims, losses, costs, damages and liabilities arising from or relating to Environmental Releases,
Remediation, or the failure of Tenant, or its agents, employees, contractors, licensees or invitees to comply
with the provisions of this Article XXI.
31
ARTICLE XXII
MISCELLANEOUS
SECTION 22.01. Acc;ess by Landlord.
Landlord may at all reasonable times during the term of this Lease enter in to inspect the Premises
and/or may show the Premises and building to others. At any time within ninety (90) days immediately
preceding the expiration of the term of this Lease, Landlord shall have the right to show the Premises and
all parts thereof to pro:~pective tenants between the hours of 9:00 a.m. and 9:00 p.m. on any day except
Sunday and any legal ar religious holiday on which Tenant shall not be open for business.
SECTION 22.OZ. Hollding Over.
Should Tenant hold over in possession of the Premises after the expiration of the term hereof
without the execution of a new lease agreement or extension or renewal agreement, Tenant, at the option of
Landlord, shall be deemed to be occupying the Premises from month to month, subject to such occupancy
being terminated by either party upon at least thirty (30) days' written notice, at one hundred fifty percent
(150% of the rental, including, but not limited to, Fixed Minimum Rent, Percentage Rent, Tax Rent,
Tenant's proportionate share of Operating Costs, and additional rent provided for herein, all calculated,
from time to time, as though the temp of this Lease had continued and otherwise subject to all of the other
terms, covenants and conditions of the Lease insofar as the same may be applicable to a month to month
tenancy.
SECTION 22.03 Successors.
All rights, obligations and liabilities herein given to or imposed upon, the respective parties hereto
shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal
representatives, succes,~sors and assigns of the said parties; and if there shall be more than one tenant, they
shall all be bound jointly and severally by the terms, covenants and agreements herein. No rights,
however, shall inure to the benefit of any assignee, legal representative, trustee, receiver, legatee or other
personal representative of Tenant unless the assignment to such party has been approved by Landlord in
writing as provided in Section 14.01(a) hereof. Landlord shall have the unrestricted right to assign this
Lease and upon any such assignment, Landlord shall automatically be released from all liability hereunder
from and after the date if such assignment. All of Tenants obligations accruing during the term hereof
pursuant to Sections 2.03, 2.04, 3.01, 3.02, 4.02, 7.03, 7.04, 8.03,10.01, and 22.22 shall survive the .
expiration or earlier termination of the term of this Lease.
SECTION 22.04. Quiet Enjoyment.
So long as Tenant shall pay the rents herein provided within the respective times provided
therefor, and provided and so long as Tenant observes and performs all the 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 hereby demised without hindrance or interruption by Landlord or any other person or
persons lawfully cisiming by, through or under Landlord, subject, nevertheless, to the terms and conditions
of this Lease. Landlord's liability under this Section shall cease upon a conveyance by Landlord of the
Premises.
SECTION 22.05. Waiver.
32
The waiver by Landlord of any breach of any term, covenants or condition herein contained shall
not be deemed to be a waiver or any subsequent breach of the same or a waiver of any other term, covenant
or condition herein contained. The subsequent acceptance by Landlord of rent due hereunder or any or all
other monetary obligations of Tenant hereunder, whether or not denoted as rent hereunder, shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to make the particular payment so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such rent. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord, unless such waiver be in writing
and executed by Landlord.
SECTION 22.06. Custom and Usage.
Any law, usage or custom~to the contrary notwithstanding, Landlord shall have the right at all
times to enforce the covenants and conditions of this Lease in strict accordance with the terms hereof,
notwithstanding any conduct or customer on the part of the Landlord in refraining from so doing at any
time or times with respect to the Tenant hereunder or with respect to other tenants of the Shopping Center.
The failure of Landlord at any time or times to enforce its righu under said covenants and provisions
strictly in accordance with the same shall not be construed as having created a custom in any way or
manner contrary to the specific terms, provisions and covenants of this Lease or as having in any way or
manner modified the same.
SECTION 22.07. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than any payment of rent or
additional rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent
or additional rent then due and payable. Tenant is hereby advised that Landlord may instruct Tenant to
forward all sums due Landlord to a "lock box" account maintained by Landlord which will result in such
checks being automatically deposited to Landlord's account without review or inspection prior to the same
being deposited. Accordingly, Tenant agrees that Landlord shall not be bound by any endorsement or
statement or any check or any letter accompanying any check or any letter accompanying any check or
payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction, whether
such check or letter is forwarded to landlord's "lock box" or directly to Landlord, Agent or elsewhere and
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.
SECTION 22.08. Performance of Tenant's Covenants.
Tenant covenants and agrees that it will perform all agreements and observe all covenants herein
expressed on its part to be performed and observed and that it will promptly, upon receipt of written notice
specifying action required by this Lease, comply with such notice; and further, that if Tenant shall not
comply with any such notice to the satisfaction of Landlord prior to the date on which such non-
compliance would constitute an Event of Default, in addition to, and not in lieu of or in limitation of any
other remedy which Landlord may have pursuant to this Lease, at law or in equity, Landlord may, but shall
not be obligated to, enter the Premises and do the things specified in said notice. Landlord shall have no
liability to Tenant for any loss or damage resulting in any way from such action and Tenant agrees to pay
upon demand, as additional rent, any sums or costs incurred by Landlord in taking such action, plus
administrative costs of Landlord in a sum equal to twenty percent (20%) of such sums and/or costs.
Notwithstanding the foregoing, Landlord's performance of any or all of Tenant's covenants shall not
release Tenant from liability f'ornov-performance.
SECTION 22.09. Entire Agreement.
Parts I and II of the Lease Agreement, the Exhibits and Rider, if any, set forth all the covenants,
promises, agreements, conditions, representations, promises, and understandings between Landlord and
33
Tenant concerning the Premises and there are no covenants, agreements, conditions representations,
promises or understandings, either oral or written, between them other than as herein set forth. All prior
communications, negotiations, arrangements, representations, agreements and understandings, whether
oral, written or both, between the parties hereto, and their representatives, are merged herein and
extinguished, this Lease superseding and canceling the same. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing and executed by the party against which such subsequent alteration,
amendment, change or modification is to be enforced. If any provision contained in any rider hereto is
inconsistent with any printed provisions of this Lease, the provision contained in such rider shall supersede
said printed provision. Tenant hereby acknowledges that: (a) this Lease contains no restrictive covenants
or exclusives in favor of Tenant; (b) this Lease shall not be deemed or interpreted to contain, by
implication or otherwise, any warranty, representation or agreement on the part of Landlord that any
grocery store, department store or regional or national chain store or any other merchant shall open for
business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the
term of this Lease or any part thereof and Tenant hereby expressly waives all claim with respect thereto
and acknowledges that Tenant is not relying on any such warranty, representation or agreement by
Landlord either as a matter of inducement in entering into this Lease or as a condition of this Lease or as a
covenant by Landlord.
SECTION 22.10. No Partnership.
Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of
iu business, or otherwise, or joint venture or a member of a joint enterprise with Tenant. The provisions of
this Lease relating to the Percentage Rent payable hereunder aze included solely for the purpose of
providing a method whereby adequate rent is to be measured and ascertained.
SECTION 22.11. Notices.
All payments of rent and any and all other monetary obligations of Tenant accruing hereunder,
whether or not denoted as rent, shall be paid to High Associates, Ltd., Agent for Smith Land &
Improvement Corporation, Attention Cash Management Department, High Industries, lnc., 1853 William
Penn Way, P.O. Box 10008, Lancaster, PA 17605-0008, until Tenant is notified otherwise in writing, and
all notices given to Landlord hereunder shall be in writing and forwarded to its agent, High Associates,
Ltd., Attention Regional Manager, at 4909 Louise Drive, Suite 209, Mechanicsburg, PA 17055, postage
prepaid, by registered or certified mail, return receipt requested or by expedited delivery service such as
Federal Express. All notices to Tenant shall be forwarded to it at the address set forth in Part I of the Lease
by postage prepaid, registered or certified mail, return receipt requested or by expedited delivery service
such as Federal Express or by delivery in person and in the event of a delivery in person, the affidavit of
the person making such delivery shall be conclusive proof of the delivery and of the date and time of such
delivery. All changes of notice address requested by Tenant shall only be valid and binding on Landlord if
executed by a duly authorized officer, partner or owner of Tenant and acknowledged in writing by an
officer of Landlord or Agent. All notices shall be deemed to have been given on the date when deposited
in the mail receptacles maintained by the corporation which has been chartered by the United States
Government to operation and deliver the mail as aforesaid or, in the case of notices delivered by expedited
delivery service, when received or in the case of notices delivered in person the Tenant, when so delivered.
Notices by the Landlord may be given on its behalf by Agent or by any attorney for Landlord or Agent.
SECTION 22.12. Captions.
The captions appearing in this Lease are inserted only as a matter of convenience and in no way
define, limited, construe or describe the scope or intent of such sections or articles of this lease nor in any
way affect this Lease.
SECTION 22.]3. Tenant Defined; Use of Pronoun.
34
The word "TE:nant" shall be deemed and taken to mean each and every person or party mentioned
as a tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice
required or permitted by the terms of this Lease may be given by or to any one thereof, and shall have the
same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to
Landlord or Tenant shall be deemed a proper reference even though Landlord or Tenant maybe an
individual, a partnership, a corporation, or a group of two or more individuals or corporations. The
necessary grammatical changes required to make the provisions of this Lease apply in the plural number
where there is more than one Landlord or Tenant and to either corporations associations, partrrerships or
individuals, males or females, shall in all instances be assumed as though in each case fully expressed.
SECTION 22.14. Negation of Personal Liability.
Notwithstanding anything contained herein to the contrary, Tenant agrees that Landlord shall have
no personal liability with respect to any of the provisions of this Lease and Tenant shall look solely to the
estate and property of Landlord in the land and buildings comprising the Shopping Center of which the
Premises forms a part for the satisfaction of Tenant's remedies, including without limitation, the collection
of any judgment or the enforcement of any other judicial process requiring the payment or expenditure of
money by Landlord in the event of any default or breach by Landlord with respect to any of the terms and
provisions this Lease to be observed and/or performed by Landlord, subject, however, to the prior rights of
any holder of any Mortgage covering all or part of the Shopping Center, and no other assets of Landlord or
any principal of Landlord shall be subject to levy, execution or other judicial process for the satisfaction of
Tenant's claim and in the event Tenant obtains a judgment against Landlord, the judgment docket shall be
so noted. This Section shall inure to the benefits of Landlord's successors and assigns and their respective
principals.
SECTION 22.15. Liability of Agent.
High Associates, Ltd., in its capacity as Agent, is acting as Agent only and in such capacity shall not in any
event be held liable to the Landlord or to Tenant for the fulfillment ornon-fulfillment of any of the terms,
covenants or conditions of this Lease or for any action or proceedings 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 of such Agent.
SECTION 22.16. Effect of Governmental Limitation on Rents and Other~Charges.
In the event that any law, decision, rule or regulation of any governmental body having
jurisdiction shall have the effect of limiting for any period of time the amount of rent or other charges
payable by Tenant to any amount less than that otherwise provided pursuant to this Lease, the following
amounts shall nevertheless by payable by Tenant: (a) throughout such period of limitation, Tenant shall
remain liable for the maximum amount of rent and other charges which are legally payable (without regard
to any limitation to the amount thereof expressed in this Lease except that all amounts payable by reason of
this Section 22.16 shall not in the aggregate exceed the total of all amounts which would otherwise by
payable by Tenant pursuant to the terms of this Lease for the period of limitation), (b) at the termination of
such period of limitation, Tenant shall pay to Landlord, on demand but only to rho extent legally collectible
by Landlord, any amounts which would have been due from the Tenant during the period of limitation but
which were not paid because of such limiting law, decision, rule or regulation, and (c) for the remaining
term of this Lease following the period of limitation, Tenant shall pay to Landlord all amounts due for such
portion of the term of this Lease in accordance with the terms hereof calculated as though there had been
no intervening period of limitations.
SECTION 22.17. Partial Invalidity; Separate covenants.
35
If any term, covenants or condition of this Lease or the application thereof to any person or
circumstance shall be to any extent, be invalid or unenforceable, the remainder of this Lease or the
application of such tenor, covenant or condition to persons or circumstances other than those as to which it
is held invalid or unenforceable shall not be affected thereby and each term, covenant and condition of this
lease shall be valid and be enforced to the fullest extent permitted by law. 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 making the same, and not
dependent on any other provision of this Lease unless expressly so provided.
SECTION 22.18. Recording.
Tenant shall not record this Lease without the written consent of Landlord. If Landlord requests,
the parties shall execute and acknowledge a short form of Lease for recording purposes which shall be
recorded at Landlord's expense.
SECTION 22.19. Brokerage Commission.
Tenant represents and warrants to Landlord that Tenant has had no dealing, negotiations or
consultations with respect to the Premises, the Shopping Center or this transaction with any broker or
fmder except Agent and that with the exception of Agent no broker or finder called the Premises or any
other spaces in the Shopping Center to Tenant's attention for leases In the event that any other broker or
fmder other than Agent claims to have submitted the Premises or any other space in the Shopping Center to
- Tenant, to have induced Tenant to lease the Premises or to have taken part in any dealings, negotiations or
consultations with respect to the Premises, the Shopping Center or this transaction, Tenant will be
responsible for and will defend, indemnify and save Landlord and Agent harmless from and against all
costs, fees (including without limitation attorney's fees) expenses, liabilities and claims incurred or
suffered by Landlord and/or Aged as a result thereof.
SECTION 22.20. Construction.
- It is the intent of the parties hereto that if any term, covenant, condition or agreement of this Lease
is capable of two or more constructions, one or more of which would render the provision void, and the
other or other of which would render the provision valid, then the provision shall have the meaning or
meanings which would render it valid. Although the printed 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.
The Landlord and Tenant agree that time is of the essence with respect to the performance of the respective
obligations set forth in this Lease.
SECTION 22.21. Prior Lease.
This paragraph intentionally deleted.
SECTION 2222. Submission of Lease to Tenant.
THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO
BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF
THE PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITI~R
PARTY UNTIL THE EXECUTION'I'HEREOF BY LANDLORD AND THE DELIVERY OF AN
EXECUTED ORIGINAL COPY THEREOF TO TENANT OR ITS REPRESENTATIVE.
36
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Lease
to be duly executed the day and year first above written.
HIGH AS IA S, LTD• ( t)
Attest: _ BY:
SMITH LAND &~IMPROVEMENT CORPORATION (Landlord)
Attest: _ BY' ~z ~-~
VtGG ~5+~~, President
HARRISB G PIES, INC. DB/A DOMINO'S PIZZA, (Tenant)
Attest: G~ BY:
Pres ent
3T
EX~IIBIT "B"
LANDLORD'S WORK IN PREMISES
Notwithstanding anything to the contrary contained in the lease, the Landlord shall, at its exp~~ '~
accomplish the following remodeling^^work: / ~~ r~ ~ f~~~~~ Q
1. Install a new stare front which, ' all be compatible with the balance of
the shopping center.
2. All existing interior partitions, plumbing fixtures, ceilings, lighting fixtures, wiring and piping will be
demolished and removed The interior of all demising walls (except store front glass] will be covered
with drywall, taped and speckled and prepared for Tenant to paint or complete its finishes. Tenant
shall be responsible for all expense related to painting or wall finishes.
3. Patch exiting flooring and prepare to accept Tenant' finished flooring. Tenant shall be responsible for
the cost of installing finished vinyl floo ~ cov , including restroom flooring and cove base.
"~~~ The air conditionin
4. Landlord shall provide 'heating and su condihonmg system. g
systems shall providers o cooling. Landlord makes no warranty that this will be sufficient for
Tenant's purposes. Should Tenant require an air conditioning unit of greater capacity, Tenant shall
pay for the additional cost.
5. Landlord will provide a two hundred amp, single-phase electrical panel Tenant shall be responsible
for all costs associated with power distnbution from the electrical panel box, including but not limited
to, power to lighting (Tenant provides lighting fixtures), walls-in cooler, and all other wall and/or floor
plugs. Landlord does not warrant that this electrical service is adequate for Tenant's purposes. Tenant
shall pay for any costs associated with electrical service upgrades. Landlord shall have sole authority
to select the location of the panel board.
6. Landlord will provide ahandicapped-accessible restroom in a location acceptable to Landlord.
Landlord will provide one sanitary drain and vent sufficient to beadle the requirements of the
restroom. Tenant will be responsible for any and all additional plumbing~nd fixtures, including a hot
water teak sufficient for its purposes, including hot water for the restroom, installed by Landlord.
7. Any and all other renovations shall be at the sole cost and expense of Tenant.
Date Land 's Initials
Tenant's Initials
EXHIBIT KC-1"
Sign Criteria
A. General.
1. Tenant is required to identify Premises by a sign, which it shall famish and install at its own
expense. Signs shall meet the Sign Criteria as outlined herein and shall be approved by local authorities,
which approval shall be obtained by Tenant at its expense. Any sign which does not conform or is
improperly manufactured andlor installed, shall be removed at Tenant's expense.
2. All sighs shall be individually lettered and internally illuminated as outlined in this Exhibit.
Signs shall have Underwriter's Laboratories' label of approval on all parts and completed display.
B. Sign Criteria -Exterior.
1. The sign shall be located on the exterior facia, as determined by the Landlord.
2. Sign wordage shall be limited to the store name only, on a single line.
3. The use of logos or insignia (which shall not exceed the average height of sign letters) maybe
permitted, subject to Landlord's approval.
4. The maximum height of sign letters or components shall not exceed 36 inches. The length of
the sign shall not exceed 80 percent of the store front. The length of the sign shall be centered over the
store front.
5. Landlord shall provide wiring for one (1) 120-volt circuit only to building facia. Cost and
installation of additional circuits will be the responsibility of Tenant.
6. A detailed description of design standards is attached hereto as C-2.
C. Sign Approval
1. No sign shall be erected until written specifications and drawings for said signs are approved in
writing by Landlord.
2. Tenant shall submit to Landlord three (3) sets of all sign drawings and specifications which
shall show the location of the sign on the buildings, the size, construction materials, colors, script,
attachment details, electrical load requirements, brightness, in-foot lamberts and name, address and phone
number of sign manufacturedinstaller.
3. Landlord shall return to shall return to Tenant one set of such sign plans within fifteen (15)
days, with suggested modifications or approval.
D. Indemnification by Tenant.
Tenant shall, at its own risk and expense, erect said sign and maintain sign in a good state of repair. Tenant
hereby agrees to indemnify Landlord against and save Landlord harmless from any loss, cost or damage
resulting from the erection, maintenance, existence or removal of said sign and fiuther agrees to repair, at
its sole expense, any damage which may be caused by the erection, maintenance, existence or removal of
such sign. Upon vacating the Premises, Tenant agrees, at its sole expense to remove all signs and repair
any and all damage caused by such removal, within thirty (30) days of vacating Premises.
6 ~~
~-~ 1
Date Land 's Initials Tenant's Initials
EXHIBIT "C-2"
Tenant acknowledges that Landlord is in the process of remodeling the Shopping Center and that new sign
design will be an integral part of that activity. The sign regulations are not available at the date of this
Lease.
Landlord agrees to permit Tenant's use of temporary signage, subject to Landlord's approval of the design,
until the remodeling project commences.
Tenant agrees to acquire new signage in conformity with Landlord's sign regulations to be developed in
connection with the remodeling of the Shopping Center, and to install said new signage with thirty days of
Landlord's completion of the remodeling work that must necessarily precede the installation of new
signage.
~ ~ `~~ ~ ~~
f -~
Date Landlo s Initials Tenant's Initials
T
0
EXHIBIT D
ADDITIONAL LEASE LANGUAGE
AS REQUIRED BY DOMINO'S PIZZA, INC.
1. Assignment of Lease.
Anything contained in the aforementioned lease to the contrary notwithstanding, Lessor agrees that without
its consent, the aforementioned lease and the right, title and interest of the lessee, thereunder maybe
assigned by the Lessee to Domino's Pizza, Inc. or its designee, provided said designee shall execute such
documents evidencing its agreement to thereafter keep and perform, or cause to be kept or performed ail of
the obligations of the Lessee arising under the aforementioned Lease from and after the time of such
assignment
2. Notice of Default.
Notwithstanding anything in the Lease to the contrary, Lessor shall give written notice to Domino's Pizza,
Inc. concurrently with the giving of such notice to Lessee) of any default by Lessee under the Lease and
Domino's Pizza, Inc. Shall have, after the expiration of the period during which the Lessee may cure such
default, an additional fifteen (15) days to cure at its sole option, any such default.
3. Landlord's Consent to Standard Signage.
The Lessee has the right to install approved signage of Domino's Pizza, Inc. subject to Landlord's approval
and Landlord's sign criteria Exhibits Cl 8c C2 of this lease which shall not be unreasonably withheld.
4. Americans with Disabilities Act.
Lessee shall be responsible for complying with the Americans with Disabilities Act only within the leased
Premises and not including any demising walls, doors, entry points or other access to the demised
Premises, as of the date of signing of this lease.
5. Waiver of Liability.
Domino's Pizza, Inc. is not liable for the fmal term and provisions of any franchise lease.
~zy9- 9~
Date
Lan d's Initials
Tenant's Initials
~`
c ~.
LEASE GUARANTY
JAMES G. GINN ("Guarantor"), whose address is 1550 Detwiler Drive, York PA 17404 for value
received as a material inducement to and in consideration of SMITH LAND & IMPROVEMENT
CORPORATION, by its agent HIGH ASSOCIATES, LTD., a Pennsylvania Partr~ership, with its principal
place of business at 1853 William Penn Way, P. O. Box 10008, Lancaster, PA 17605-0008 ("Lessor'
entering into a written lease of /Z~1- ~ G (date] ("the Lease") with HARRISBURG PIES, INC., a
Pennsylvania corporation with a place of business at 1550 Detwiler Drive, York, PA 17404 ("Lessee"),
pursuant to which Lessor leased to Lessee, and Lessee leased from Lessor, premises known as store
numbers 364 and 368, West Shore Plaza, 1200 Market Street, Lemoyne, PA 17043, unconditionally
guarantees and promises to and for the benefit of Lessor that Lessee shall fully perform all covenants and
obligations of Lessee under the Lease.
The Guaranty shall expire automatically and without the requirement of any further notice to either party
on the third anniversary of the commencement of the Lease; provided, however, that Tenant shall not be in
default on such date.
If Guarantor is more than one person, Guarantor's obligations are joint and several and are independent of
Lessee's obligations. A separate action may be brought or prosecuted against any Guarantor whether the
action is brought or prosecuted against any other Guarantor or Lessee, or all, or whether any other
Guarantor or Lessee, or all, are joined in the action.
Guarantor waives the benefit of any statute of limitations affecting Guarantor's liability under this
Guaranty.
The provisions of the Lease may be changed by agreement between Lessor and Lessee at any time, or by
course of conduct, without the consent of or without notice to Guarantor. This Guaranty shall guarantee
the performance of the Lease as changed. The obligations of the Guarantor hereunder shall in no wise be
terminated, affected, or impaired by reason of the granting by Lessor of any indulgences to Lessee.
The failure of Lessor to insist in any one or more instances upon a strict performance or observance of any
of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be
construed or deemed to be a waiver or relinquishment for the future of such term, provisions, covenant, or
right, but the same shall continue and remain in full force and effect. Receipt by Lessor of rent with
knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach.
No subletting, assignment, or other transfer of said Lease, or any interest therein shall operate to extinguish
or diminish the liability of the Guarantor under this Guaranty; and wherever reference is made to the
liability or Lessee named in the Lease, such reference shall be deemed likewise to refer to the Guarantor.
If Lessee defaults under the Lease, Lessor can proceed immediately against Guaranrtor or Lessee, or both,
or Lessor can enforce against Guarantor or Lessee, or both, any rights that it has under the Lease, or
pursuant to applicable laws. This Guaranty shall include any liability of Lessee which shall accrue under
the Lease for any period preceding as well as any period following the term of the Lease. If the Lease
terminates and Lessor has any rights it can enforce against Lessee after termination, Lessor can enforce
those rights against Guarantor without giving previous notice to Lessee or Guarantor, or without making
any demand on either of them.
Guarantor waives the right to require Lessor to (1) proceed against Lessee; (2) proceed against or exhaust
any security that Lessor holds from Lessee; or (3) pursue any other remedy in Lessor's power. Guarantor
waives any defense by reason of any disability of Lessee, and waives any other defense based on the
termination of Lessee's liability from any cause. Until all Lessee's obligations to Lessor have been
s
dischazged in full, Guarantor has no right of subrogation against Lessee. Guazantor waives its right to
~• enforce any remedies that Lessor now has, or later may have, against Lessee. Guarantor waives any right
• to participate in any security now or later held by Lessor. Guarantor waives all presentments, demands for
performance, notice of nonperformance, protests, notices of protest, notices of dishonor, and notices of
acceptance of this Guazanty, and waives all notices of the existence, creation, or incurring of new or
additional obligations.
The liability of Guarantor hereunder shall in no way be affected by (a) the release or discharge of Lessee in
any creditors', receivership, banlQUptcy or other proceedings, (b) the impairment, limitation or
modification of the liability of the Lessee or the estate of the Lessee in banlauptcy, or of any remedy for
the enforcement of Lessee's said liability under the Lease, resulting from the operation of any present or
future provision of the BanlQUptcy Code or other statute or from the decision in any court; (c) the rejection
or disaffirmance of the Lease in any such proceedings; (d) any disability or other defense of Lessee, or (e)
the cessation from any cause whatsoever of the liability of Lessee.
All of the terms and provisions hereof shall inure to the benefit of the successors and assigns of the Lessor,
and shall be binding upon the successors and assigns of the Guarantor.
If Lessor is required to enforce Guarantor's obligations by legal proceedings, Guarantor shall pay to Lessor
all costs incurred, including, without limitation, reasonable attorneys' fees.
This Guaranty may not be changed, modified, discharged or terminated orally or in any manner other than
by an agreement in writing signed by Guarantor and the Lessor.
IN WITNESS WHEREOF, the Guarantor hereto, intending to be legally bound hereby, has executed this
Guaranty this Gf ~ day of ~G~i 1X/ 1996.
x~
E ~~`+ ~
r~ i ~~+i*1~~.
1~1 ~O~ ~ ~ i 1 ~~
& SINON LLP
John M. Coles
ph (717) 231-6640
fx (717) 231-6669
j coles@rhoads-sinon. c om
~xo: 1299/198
January 16, 2008
Re: NOTICE OF DEFAULT of Harrisburg Pies, Inc. t/d/b/a Domino's Pizza
CERTIFIED MAIL, RETURN RECEIPT CERT EFIEE MAIL~TURN~ CMAIL
REQUESTED and FIRST CLASS MAIL REQU
Harrisburg Pies, Inc.
Attention: Deborah A. Rufo
2550 Coldsprings Road
York, PA 17404
Ladies and Gentlemen:
Domino's Pizza, Inc.
Attention: Valerie Clark
24 Frank Lloyd Wright Drive
Ann Arbor, MI 48105-9755
As you may be aware, our law firm represents Smith Land & Improvement Corporation
("Smith Land"), the landlord under a certain Lease Agreement dated December 9, 1996, by and
between Smith Land, as landlord, and Harrisburg Pies, Inc. t/d/b/a Domino's Pizza ("Harrisburg
Pies', as tenant (as amended, the "Lease"). Harrisburg Pies is in default under the Lease due to
its failure to make required payments to the landlord for Fixed Minimum Rent, Tax Rent,
Tenant's proportionate share of operating costs, promotion charges and other expenses, all as
more fully set forth on the attached Exhibit "A" to this letter. As of the date hereof, tenant is
currently in default in the amount $20,666.59.
Pursuant to Section 19.01 of the Lease, please accept this letter as formal notice of
Harrisburg Pies' default. Under Section 19.01, if this default continues for ten (10) days
following the date of this written notice, an "Event of Default" shall be deemed to have occurred
under the Lease, and the landlord shall have the right to exercise any and all remedies available
to it under the Lease and applicable law. These remedies include, without limitation, confessing
judgment against the tenant for possession of the Leased Premises and for money damages. as
allowed by the Lease.
We note that Exhibit "D" of the Lease requires the landlord to provide written notice of
this default to Domino's Pizza, Inc., concurrently with the giving of such notice to the tenant.
The Lease provides that, after the expiration of the ten (10) days that the tenant has to cure its
default, Domino's shall have an additional fifteen (15) days to cure the default at Domino's sole
option. For this reason, we have included Domino's as an additional addressee of this letter.
As you can see from the attached exhibit, many of the amounts that are owed to Smith
Land by Harrisburg Pies have been due to our client for some time. Our client has been
exceptionally patient in waiting for payment, however, unless the default is cured within the time
frames set forth herein, Smith Land will have no choice to pursue the rights and remedies
available to it under the Lease including, without limitation, eviction.
676279.1
Rhoads 6t Sinon LLP • Attorneys at Law • ?welfth Floor • One South Market Square P.O. Box 114
__ .. _ .,., ,-,,,.o „~~ _ _~. i~i~> 74'~_47'~1 f,c (717) 232-1459 www.rhoads-sinon.com
January 16, 2008
Page 2
We understand from some electronic mail correspondence which our office has received
from our client that Larry Young of CGA Law Firm represents Harrisburg Pies, Inc., and, for
that reason, we are copying him on this correspondence. If other counsel is involved, please
advise.
We look forward to your prompt attention to these matters.
Very truly yours,
SINON LLP
.~
..^~ ~.
~' .a
Z. Coles
Enclosure
JMC/shp
cc: Lawrence V. Young, Esquire (w/encl.)
R. E. Jordan II,. President (w/o encl.)
R. E. Jordan III, Vice President (w/o enc1.0
~XWS~ F ~-
~~-~~~
~xo~ s ~„
& SINON LLP
May 6, 2008
John M. Coles
ph (717) 231-6640
fz (717) 231-6669
jcoIes(a3rhoads-sinon.com
Fn.exo: 1299/198
Re: Harrisbur Pies. Inc. dd/b/a Dominos Pizza
VIA Fax - 717-843-9039 and
FIRST CLASS MAIL
Lawrence V. Young, Esquire
CGA Law Firm
CGA Professional Center
135 North George Str-eet
York, PA 17401
Dear Larry:
I am writing to follow up on our recent telephone conversations regarding the above-
referenced matter.
As you know, your client, Harrisburg Pies, Inc. t/d/b/a Domino's Pizza ("Harrisburg
Pies' remains in default under its Lease Agreement with our client, Smith Land & Improvement
Corporation ("Smith Land', dated December 9, 1996 (as amended, the "Lease'. Harrisburg
Pies has failed to make required payments to Smith Land for fixed minimum rent, tax rent,
tenant's proportionate share of operating costs, promotion charges and other expenses. These
defaults were specifically set forth in a Notice of Default transmitted to your client, with a copy
to you and to Domino's Pizza, Inc., on January 16, 2008. Although your client has since made
nominal payments to Smith Land, the default set forth in the January 16, 2008 letter remains
uncured. As of the date hereof, Harrisburg Pies owes $22,267.15 to Smith Land, as more fully
set forth on Exhibit "A" attached hereto and incorporated herein.
Smith Land has been patient for the past several months, as they have received repeated
verbal and written assurances from your client that a sale of Harrisburg Pies' Domino's franchise
was imminent. During this time, not only has the existing default remained uncured, but
additional unpaid amounts have accruedb~ ~ sLd f ult under the Lease, and that, as part of
produce proceeds sut~clent to cure Ham g
the sale, Smith Land would be asked to consent to the assignment of the Lease to the new
Domino's franchisee.
We again point out that Section 14.01 of the Lease provides that any assignment of the
Lease by Harrisburg Pies requires the consent of Smith Land. We do acknowledge that Exhibit
D to the Lease contains additional language that indicates that Harrisburg Pies has the right to
assign the Lease to Domino's Pizza, Inc., or its designee. We note, however, that because the
Lease is in default, it is our client's position that they will not agree to any assignment or
otherwise recognize any potential new tenant without at a minimum a full and complete cure of
688731.1
Rhoads 6t Sinon LLP~ nQ ~toaneys ~tr7aw 233 573 Fl fxr(7 ~~ 232 1459 •rweww. hoads sinon~com 4
May 6, 2008
Page 2
the current default. Moreover, as required by Exhibit D of the Lease, any new franchis~eemuWt
be designated in writing by Domino s, and, in order for the assignment to be effective,
tenant must execute "such documents evidencing its agreemenof thee Les eekrising undero the
or cause to be kept or performed all of the obligations
aforementioned Lease from and after the time of onus or ~ imposed n w endante nor have we
office nor our client has been contacted by Domm y p Bement or similar document,
received any evidence, such as a legally binding Asset Purchase Agr
that suggests that a sale is even contemplated at this point.
In light of the foregoing, our client has directed us to initiate legal action against
Harrisburg Pies through confession of judgment proceedings for both money damages and
ejectment. Unless the ongoing default is cured immediately, these documents will be filed in the
next several days.
We regret that we have come to this point, however, with no real evidence of a pending
sales transaction, our client has little choice but to proceed in this manner.
Enclosure
cc: R. E. Jordan III, Vice President
Very truly yo~~
~\
~/t
t
d
C') r''
G p?
C'"^)
~'
~
~ .- S=c>
~ ~
~.
~+
~ ~ i'
~ /~ f
Q \ - ~~ ~ «......
`~ S'-T^
` ,
N
V