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08-5905
PETRIKIN, WELLMAN, DAMICO, BROWN $ PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 Attorney for Plaintiff THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SILVER SPRING SQUARE II, L.P. : NO. Plaintiff vs. HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC 11 Enterprise Court Sewell, NJ 08080 Defendants Ui7 -JYOS (.GUi(,TE2n-l NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 (717) 249-3166 PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 Attorney for Plaintiff The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SILVER SPRING SQUARE II, L.P. NO. ON- 5905" One Independent Drive, Suite 114 Jacksonville, FL 32202-5019 Plaintiff vs. HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC 11 Enterprise Court Sewell, NJ 08080 : Defendants COMPLAINT FOR MONEY JUDGMENT 1. Plaintiff named above is a Delaware limited partnership. Plaintiff's address is as stated in the caption. 2. Defendant HT Systems, LLC is a Delaware limited liability company with a place of business at the address in the caption. 3. Defendant Hollywood Tanning Systems, Inc. is a New Jersey corporation with its registered place of business at the address in the caption. 4. Defendant Tan Holdings, LLC is a Delaware limited liability company with a place of business at the address in the caption. 5. Plaintiff is the landlord owner of premises located at Silver Spring Square, 6416 Carlisle Pike, Suite 700, a/k/a Space H-5, Silver Spring Township, Cumberland County, Pennsylvania (the "Property"). 6. On or about March 16, 2007, Defendant Hollywood Tanning Systems, Inc. entered into a 60 month Lease ("Lease") for the Property. A true and correct copy of the original Lease is attached hereto, marked Exhibit "A" and made part hereof. 7. On or about June 22, 2007, Defendant Hollywood Tanning Systems, Inc. assigned the Lease ("Assignment") for the Property to HT Systems, LLC with Plaintiff's consent. A true and correct copy of the original Assignment is attached hereto, marked Exhibit "B" and made part hereof. 8. In the Assignment, HT Systems, LLC, among other things, assumed all of the obligations of the original tenant under the Lease. 9. Also on or about June 22, 2007, Defendant Tan Holdings, LLC executed an Absolute Unconditional Guaranty Agreement ("Guaranty") of the Lease and Assignment. A true and correct copy of the original Guaranty is attached hereto, marked Exhibit "C" and made part hereof. 10. Defendants are and have been in default of the Lease, Assignment and Guaranty for having failed to make payments as and when required under the Lease and for failing to cure the defaults within 10 days after written notice was given. 11. Defendants have abandoned the Property. 2 12. The amount currently due and owing and unpaid under the Lease, Assignment and Guaranty is $22,832.25 as shown on the Tenant Reconciliation attached hereto, marked Exhibit "D" and made part hereof. 13. Under Section 18.2 of the Lease, Defendants are obligated for rent accrued until the time of the award and the discounted worth of rent from the time of the award until the end of the Lease, calculated in accordance with that section. 14. The total of the rent owed and the discounted value of rent to the end of the Lease, as set forth on the attached Exhibit "E", which is hereby made part hereof, is $319,107.10. 15. In addition, Defendants are obligated under the Lease for Plaintiffs reasonable attorney's fees and costs incurred in prosecuting this action to completion. Plaintiff has incurred counsel fees and costs and will continue to incur such fees and costs, the reasonable amount of which, if Defendants take no steps to defend this action, will be approximately $4,000.00. WHEREFORE, Plaintiff demands money judgment in the amount of $323,107.10, together with any additional reasonable attorney's fees and costs as may be incurred in prosecuting this action. PET KIN, WELLMAN, DAMICO, ROWN TRO BY: DENIS M. DUNN, ESQUIRE Attorney for Plaintiff 3 VERIFICATION The Undersigned having read the attached pleading verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S. 4904 relating to unsworn falsification of authorities. BY DATED: 3o /Og SHOPPING CENTER LEASE Between Silver Spring Square II, LP (Landlord) And Hollywood Tanning Systems, Inc. DB/A Hollywood Tans (Tenant) At Silver Spring Square Dated MAP-Gh 1 ? , 1 02/27/07n-1- „ R raENrv (`F,NTFRS INITIAL ED= W-- TABLE OF CONTENTS ARTICLE 1. INTRODUCTORY PROVISIONS .............................................................................................1 ARTICLE 2. PREMISES ...............................................................................................................................4 ARTICLE 3. TERM ........................................................................................................................................5 ARTICLE 4. RENT ........................................................................................................................................5 ARTICLE 5. TAXES AND ASSESSMENTS .................................................................................................8 ARTICLE 6. TENANTS CONDUCT OF BUSINESS ...................................................................................8 ARTICLE 7. USE OF PREMISES .................................................................................................................8 ARTICLE 8. COMMON AREAS ...................................................................................................................8 ARTICLE 9. HAZARDOUS SUBSTANCES .................................................................................................9 ARTICLE 10. ALTERATIONS TO PREMISES ..........................................................................................10 ARTICLE 11. LIABILITY, INDEMNITY AND INSURANCE .......................................................................10 ARTICLE 12. DESTRUCTION ....................................................................................................................12 ARTICLE 13. MAINTENANCE OF PREMISES .........................................................................................13 ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL .............................................................................13 ARTICLE 15. LIENS .................................................. ARTICLE 16. SIGNAGE .............................................................................................................................14 ARTICLE 17. ASSIGNMENT AND SUBLETTING .....................................................................................14 ARTICLE 18. DEFAULTS BY TENANT .....................................................................................................15 ARTICLE 19. LIMITATION OF LANDLORD'S LIABILITY ........................................................................18 ARTICLE 20. SUBORDINATION AND ATTORNMENT ............................................................................19 ARTICLE 21. ESTOPPEL CERTIFICATES ...............................................................................................19 ARTICLE 22. QUIET ENJOYMENT ...........................................................................................................19 ARTICLE 23. SURRENDER AND HOLDING OVER .................................................................................19 ARTICLE 24. CONDEMNATION ................................................................................................................20 ARTICLE 25. MISCELLANEOUS ...............................................................................................................21 ARTICLE 26. LANDLORD'S RIGHT TO RELOCATE PREMISES ...........................................................23 ARTICLE 27. RADIUS RESTRICTION .......................................................................................................23 ARTICLE 28. EXCLUSIVE ....................................... ARTICLE 29. OPTION TO EXTEND ..........................................................................................................24 ARTICLE 30. LIMIT ON COMMON AREA COSTS FOR DEVELOPMENT ..............................................25 ARTICLE 31. LANDLORD'S SUBORDINATION OF LIEN .......................................................................25 ARTICLE 32. LANDLORD'S LIEN .............................................................................................................25 ARTICLE 33. AUDIT RIGHT PROVISION ..................................................................................................25 ARTICLE 34. TENANT'S FINANCIAL STATEMENTS ..............................................................................26 EXHIBIT A ...................................................................................................................................................28 02/27/070^'24'9/g3.?96 Ja%Lro012509V11/15/07 Rr INITIAL c; rEN ERsy NE 4 EXHIBIT B EXITB...................................................................................................................................................29 ...................................................................................................................................................30 T C ...................................................................................................................................................31 EXHIBIT C-1 ..............................................................................................................................................33 EXHIBIT C-2 ................................................................................................................................................34 EXHIBIT E ...................................................................................................................................................35 EXHIBIT F ..................................................................................................................................................36 EXHIBIT I ...................................................................................................................................................37 02/27/0792 2:; - INITIAL Rrc?Nry HMM `ENTERS SILVER SPRNG SQUARE CENTER LEASE THIS LEASE, made as of the day of Xf ?? r-C4A 204 by and between Silver Spring Square II, LP, a Delaware limited partrwship (herein called 'Landlord), and Hollywood Taming Systems, Inc., _ " How Jereev corporation (herein caged 'Terwe). In radon of the obligations of Tenant to pay rent and other grerges as herein proNdsd and in consideration of the Oliver tense. ooverwts and conditions hereof, Landlord hereby eases to Terhant and Tenant hereby leases from Landlord the premises downed herein for the tern and subject to the terms and conditions set forth herein. 1.1 FUNDAMENTAL LEASE PROVISIONS. Certain fundamental provisions we presented In tits Section In summary form to facilitate convergent reference by the parses hereto: (a) Tenant's Trade Name (b) Term (c) Premises Space Number I (d) GLA In Premises (e) GLA in Landord's Building (f) Tenants Proportionate Share (g) Minimum Annual Rent (h) Perxhntap Rent I Jaz Laaal ?509 vl 1!15907 RTrENCY CEWERS Hollywood Tans (Section 7.1) Sixty (60) months (Section 3.1) H-5 6416 Carlisle Pike Suite 700 Ilk sbura. PA 17050 (EXI" -B' - Part 2) 2,000 square feet (Section 1.6) 485,994 square feet (Section 1.5) Tenant's proportionate aims shell be defined as the percentage that the gross leasable area ('GLA'D of the Promises bears to the entire gross easabe area of Landlord's Building except as hereinafter provitled. in determining Termt's ProporiorMs Share of Cameron Area Costs and oontridiYon for Taxes and kumx*rKw Landlord may exclude from the GLA of the Landlord's Buk kg any premises cantak" 7,500 or more Square het of GLA If to ease for such prertgsse does not require to applicable, tenant to pay a prorate sine of Common Area Costs, Tares or Insurance, but in that event, Landlord shall deduct from the Common Area Costs, Taxes or kunnaince wry amounts payable by any such ferments spsdimorNy for hems Included h the Common Area Costs, Taxes or Irsuarre. -Tihe Months Mkhknum Rent Minimum Rent MW Twm Rent (Monthly) (Per Sq. ft. of (Amuel) GLA) 1-12 $6.500.00 $33-00 $68,000.00 13 - 24 $5,666.00 $33.99 $87,950.00 25 - 36 $5,835.00 $96.01 $70,020.00 37 - 48 $6,010.00 $35.05 $72,120.00 49 - 60 $6,190.00 $37.14 $74,250.00 plus applicable sales tax (Section 4.2) 1 INITIAL NBRB N (1) C4mrtemament Date The earlier of (1) rdnety (90) days after 1 0) use (k) Guarantor(s) (H none, so state) (1) Default Rate. opens for business In the Promises. MAction 3.11 Tanning satin and sale of ancillary tannins products nrl serAces (Article 7) WA The looser of twelve percent (12%) per annum or the maximum lawful rate of Interest penrMW by applicable law (m) Security Deposit WA (n) Brokers Regency Realty Group and Brandon Anapol, Metro C;ammWOal Real Estate representing Landond and Colliers L 6 A representing Tenant (Section 25.5) (o) Estimated Common Area Costs for 2006 $2.50 per square foot per ansasrr (Ankle 9) (Subject to annund adjustment) (p) Estimated Taxes for 2006 $2.00 per square foot per annrem (ArWe 5) (Subject to snnuel adrnsbment) (q) Estimated Insurance for 2006 $0.25 per square toot per amen (ArWe 11) (Subject to annual a**lment) (r) Advertising and Promotion Fled (if none, so state) WA (a) Estimated Initial Monet y Payments Required Minimum $Sp[ Additional Rent 55,500.00 Common Area Cores $416.67 Taxes 5333.33 Insurance $41.67 Advertising and Promotion, Fund (H none, so WA state) Pylon Signage Fee (d none, so state) WA Sate Fee Of none, so state) WA Total Monthly Addtlional Rem $791.67 State and Cmmty Sales Tax WA Total MMNhly Payment at Commencement hate $6,291.67 (t) Address for Notice To Lan il"d do Regency Carters Corporator, 121 West Forsyth Street Suite 200 Jedreonvine, taodde 32202 Attention: Lease Admintsbator With a copy to: c% Regsrwy Carriers Corporation 121 Weal Forsyth Street Suite 200 JadmorwNe, Harkin 32202 Attention: Legal Department With a copy to: do Regency Centers Corporation 150 Monument Road, Suite 406 2 02 27 07 max Legal 2509 VI JtlW Rr:C,ENCy SNIT At, CENTERS Bala Cynwyd, PA 19004 Attention: Property MenHpeme d To Tenant: Hollywood Tamina Systems. Inc 11 Enterprise Court Sewell. New Jersey 08080 559.716-2150 02/27/079209;x^ 493fg5 juLe¢a12509v11/15/07 RT:(;ENCY INITIAL CENTERS ?HERE TD% 1.2 REFERENCES AND CONFLICTS. References appearing in Section 1.1 are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions contained in Section 1.1 shall be construed to incorporate all of the terms provided for under such provisions, and such provisions shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions set forth in Section 1.1 and any other provision of this Lease, the latter shall control. 1.3 EXHIBITS. The following drawings and special provisions are attached hereto as exhibits and hereby made a part of this Lease: (a) Exhibit"A' Legal Description of the Shopping Center Land as presently constituted (b) Exhibit'B" Part 1 - Site plan of Shopping Center Land; and Part 2 - Leasing Plan. (The Premises is identified on the Leasing Plan.) (c) Exhibit "C" Description of Tenant's Work and Work to be performed by Landlord, if any, in the Premises; and "C-1" Shopping Center Signage Criteria; and "C-2" Landlord's Work and (d) Exhibit "D" (e) Exhibit'E" (f) Exhibit "F" (g) Exhibit "G" (h) Exhibit "M (1) Exhibit "I" Intentionally Omitted Requirements i£ Restrictions Tenant Improvements Shopping Center Exclusives Intentionally Omitted Ircteritienally GnaKWLandlord Waiver Aa ent 1.4 THE SHOPPING CENTER; LANDLORD'S BUILDING. The "Shopping Center" means the land described in Exhibit "A' and improvements thereon constituting an integrated retail shopping center, as the same may be modified from time to time throughout the Term of this Lease. The structure or structures shown on Exhibit *W as "Landlord's Building; as the same may be altered, reduced or expanded from time to time throughout the Term of this Lease, is hereinafter called the 'Landlord's Building." Landlord may at any time and from time to time change the shape, size, location, number, height and extent of the improvements in the Shopping Center and eliminate or add any improvements to any portion of the Shopping Center and add land thereto or eliminate land therefrom. 1.5 GROSS LEASABLE AREA. At the Commencement Date, GLA means, with respect to the Premises, the number of square feet set forth in Section 1.1(d) and, with respect to the Landlord's Building, the number of square feet set forth In Section 1.1(a). GLA will change with additions or deletions to the Landlord's Building and/or the Premises. The GLA is measured from the exterior face of exterior walls, the exterior face of service corridor walls and the centerline of interior demising walls. No deduction shall be made for columns, stairs, elevators or any internal construction or equipment. ARTICLE 2. PREMISES 2.1 LEASE OF PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term, at the rent, and upon the terms, covenants and conditions herein set forth. 2.2 PREMISES DEFINED. The term "Premises" means the space situated in the Landlord's Building in the location marked on Exhibit "B" and shawl consist of the space thereat within the walls, structural floor and the bottom of the roof of Landlord's Building. 2.3 DELIVERY OF PREMISES. Landlord agrees to deliver to Tenant, and Tenant agrees to accept from Landlord, possession of the 00 r Premises when Landlord advises Tenant in writing that the Landlord's Work in the Premises (if any) has ?NIU been sut'lieieritty completed Landlord's notice thereof shall constitute delivery of the Premises rev without further act by either party. Landlord will deliver possession of the Premises to Tenant In its OLAO , current "as4C condition with the addition of only those items of work (if any) described on Exhibit "C"Irl-f C Landlord encounters delays in delivering possession of the Premises to Tenant, this Lease will not be Ebtt „ 4 ?a 02/27/07OW29 4 103{06 Jax nr 25Q9„ r vuro2 ? Rr!GRNCV INITIAL { CENTERS xsRS (?_ vo Landlord id or voidable, nor will Landlord be liable to Tenant for any loss or damage resulting from such delay. anticipates delivery to be on or around March le 2007 If the delay in possession is caused by Tenant (including delays caused by Tenant's failure to supply the information referred to in the following sentence), then the date of Landlord's delivery of the Premises to Tenant shall be deemed to be the date such delivery would have occurred but for Tenant's delav. Except. notwithstandina anvthinn to tha not be obligated to deliver possession of the Premises to Tenant until Landlord has received from Tenant all of the following: (i) a copy of this Lease fully executed by Tenant, and a Guaranty, if any, executed by the Guarantor(s); (ii) the Security Deposit and the first installment of Minimum Annual Rent; and (iii) copies of policies or certificates of insurance as required under Article 11 of this Lease. If Tenant occupy the Premises prior to the Commencement Date, such early occupancy shag be subject to all of the terms and conditions of this Lease, and Tenant will not interfere with Landlord in the completion of Landlord's Work (K any). Landlord will give Tenant access for locks to be changed upon: (i) Tenant's acceptance of the Premises, (1) Landlords receipt of two sets of plans and specifications set forth in Exhibit "C", and (iii) Landlord's receipt of a copy of the contractor's insurance certificate. Tenant will pay all expenses associated with changing the locks. 2.4 OPENING OF PREMISES. On or bekwo-a&Lten (10) days after delivery of possession of the Premises to Tenant, Tenant shall commence the Tenant's Work specified in Exhibit 'C", diligently and continually proceed to completion, and open for business on or before the Commencement Date specified in Section 1.1(i). In relation to Tenant's Work, Tenant shall execute the Notice of CereRmenserrmeM -Possession as Owner identifft Landlord only as the fee simple titleholder for purposes of permitting. By opening for business, Tenant shall be deemed to have acknowledged that all work (if any) required to be performed by Landlord in connection with the Premises and any and all other obligations to be performed by Landlord on or before the opening of the Premises have been fully performed, and that the Premises are at such time complete and in good, sanitary and satisfactory condition and repair without any obligation on Landlord's part to make any alterations, upgrades or improvements thereto_gxGept for possible Hunch list open items of Landlord. 3.1 TERM OF THIS LEASE. The Tenn of this Lease shall commence on the Commencement Date specified in Section 1.1(1) and shall continue for the number of months set forth in Section 1.1(b). 4.1 TENANTS AGREEMENT TO PAY RENT. Tenant hereby agrees to pay Minimum Annual Rent, Percentage Rent and Additional Rent. The term 'Rent" includes the Minimum Annual Rent, Percentage Rent and Additional Rent. 4.2 MINIMUM RENT. The minimum amount of rent Tenant shall pay Landlord for each Lease Year is the amount set forth in Section 1.1(g) (the 'Minimum Annual Rent'). Minimum Annual Rent for the period from the Commencement Date to the first day of the month following such date shall be prorated on a daily basis and shall be payable with and in addition to the first insWiment of Minimum Annual Rent. The Minimum Annual Rent for each Lease Year (as defined below) shall be payable in twelve (12) equal monthly installments, in advance, on the first day of each calendar month. The first installment of Rent shall be due on Tenant's execution and delivery of this Lease to Landlord. 4.3 LEASE YEAR DEFINED. The 'First Lease Year" means the period beginning on the Commencement Date and ending on time last day of the twelfth full calendar month thereafter. "Lease Year' means each successive twelve (12) month period after the First Lease Year occurring during the Term. between the GGFRIVIRAQ-0-ment Date and the E168 YSaF shall Wish be GensideFed a Lease 5 I 02/27/0701-'" ?g:?! ' ^ 3 3 ?g3?06 lax Leea1 2509 v1 1/15/07 R f'GBNC, INITIAL CF..N-rF.R S 4.5 GROSS SALES. (a) "Gross Sales' means the actual prices of all goods, wares, internal based sales and merchandise sold and the actual charges for all services performed by Tenant or by any subtenant, licensee, concessionaire or other person in, at, from, or arising out of the use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and includes the value of all consideration received or promised for any of the foregoing, without reserve or deduction for inability or failure to coped, including, but not limited to, sales and services: (i) where the orders therefor originate in, at, from or arising out of the use of the Premises, whether delvery or performance is made from the Premises or from some other place and regardless of the place of bookkeeping for, payment of, or collection of any account; or (i) made or performed by mail, telephone, or telecopy orders received or filled in, at or from the Premises; or (iii) made or performed by means of mechanical and other verxfing devices in the Premises; or (iv) which Tenant, or any subtenant, licensee, concessionaire or other person, in the normal and customary course of its business, would credit or attribute to its operation at the Premises or any part thereof. Any deposit not refunded shall be included in Gross Sales in the month in which such deposit is received. (b) The following shall be excluded from Gross Sales: (i) any exchange of merchandise between stores of Tenant when such exchange is made solely for the convenient operation of Tenants business and not for the purpose of consummating a sale made in, at or from the Premises; (ii) returns to shippers or manufacturers; (ill) cash or credit refunds to customers on transactions previously reported as Gross Sales; (iv) sales of fixtures, machinery and equipment, which are not stock in trade, after use thereof in the conduct of Tenants business; and (v) amounts which are separately stated and collected from customers and which are paid by Tenant to any government for any sales or excise tax. No franchise, capital stock tax, tax based upon assets or net worth or gross receipts tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales. 4.6 TENANT'S RECORDS AND STATEMENTS OF GROSS SALES. (a) The business of Tenant and of any subtenant, licensee, concessionaire or other person upon the Premises shall be operated so that an accurate and verifiable record of Gross Sales can be 6 02/27/07G2, Jax Len] 2509 vI 1/15/077 INITW RF RS CFNTFTf nR S maintained and reported to Landlord. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at a location in the vicinity of the Premises made known to Landlord, full, complete and accurate books of account and records in accordance with generally accepted accounting practices with respect to all operations of the business conducted in or from the Premises, Including the recording of Gross Sales and the receipt of all merchandise into and the delivery of all merchandise from the Premises during the Tenn. Tenant shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as well as copies of contracts, vouchers, checks, inventory records, dated cash register tapes, and other documents and papers in any way related to the operation of such business for at least three (3) years from the end of the period to which they are applicable, or, if any audit is required or 9 a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such audit or controversy is terminated, even though such retention period may be after the expiration of the Term or earlier termination of this Lease. All such books and records shall be open at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly authorized representatives, who shag have full and tree access to such books and records and the right to require of Tenant, its agents and employees such information or explanation with respect to such books and records as may be necessary for a proper examination and audit thereof. (b) The statements provided for in Sections 4.5(a) and (b) shag be accompanied by a certificate signed by Tenant (or, if Tenant is a corporation or limited lability company, by a responsible officer of Tenant) stating specifically that Tenant and/or such person has read the definition of 'Gross Sales' contained in this Lease, has examlred the report for the period in question, and that such report accurately represents the Gross Sales of such period. Landlord shag be permitted to divulge the contents of any of the statements provided for in Sections 4.5(a) or (b) orgy if such disclosure is made in connection with any financing arrangements or assignments or other transfers of Landlord's interest in the Premises or in connection with any administrative or judicial proceedings in which Landlord is involved. In the event Tenant is delinquent in furnishing to Landlord monthly Gross Sales statements for two (2) consecutive months, Landlord shall have the right to conduct an examination or audit of Tenant's books and records and Tenant agrees to pay the cost thereof, together with any deficiencies in Percentage Rent disclosed thereby, as Additional Rent upon demand, together with interest at the Default Rate. The monthly and annual statements required by Section 4.5 shall be delivered to Landlord at the place to which notices are to be sent to Landlord pursuant to Section 25.3, whether or not any Percentage Rent is due. For the purposes of this Article, the term 'responsible officer of Tenant' means the Chief Executive Officer or the Chief Financial Officer of Tenant or such other person reasonably acceptable to Landlord. 4.7 ADDITIONAL AUDIT RIGHTS. The acceptance by Landlord of payments of Percentage Rent shall not prejudice Landlord's right to examine Tenant's books, records and accounts in order to verify the amount of Gross Sales. Landlord or its representatives may, at any reasonable time, upon ten (10) days' prior written notice to Tenant, cause a complete or partial audit to be made of Tenant's books, records and other documents relating to the Premises (including the books and records of any subtenant, licensee or concessionaire) for all or any part of the three (3) year period immediately preceding the day of the giving of such notice by Landlord to Tenant. If such audit discloses that any of Tenant's monthly or annual statements of Gross Sales understates Gross Sales made during the reporting period of the statement to the extent of two percent (2%) or more, Tenant shall pay to Landlord, as Additional Rent on demand, the cost of said audit in addition to the deficiency in Percentage Rent, which deficiency shall be payable in any event, together with interest at the Default Rate. 4.8 ADDITIONAL RENT. Tenant shall pay, as additional rent (herein sometimes collectively called 'Additional Rent'), all sums of money or charges of whatsoever nature (except Minimum Annual Rent and Percentage Rent) required to be paid by Tenant to Landlord pursuant to this Lease, whether or not the same is designated as "Additional Rent.' 4.9 WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTION; LATE CHARGE. Rent payable by Tenant under this Lease shall be paid to Landlord later OR OF belOFe the no than ten 1 days after the first day of each month without prior notice or demand therefor (except where such prior demand is expressly provided for in this Lease), without any deductions, set offs or counterclaims whatsoever, at the place to which notices are to be sent to Landlord or to such payee and at such place as may be designated by Landlord to Tenant in writing at least ten (10) days prior to the next ensuing Minimum Annual Rent installment payment date. Tenant acknowledges that, in addition to interest costs, the late payments by Tenant to Landlord of any Rent due under this Lease will cause Landlord to incur costs rat contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such other costs include, without limitation, processing, administrative and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage, deed of trust, related loan documents or other documents encumbering or otherwise affecting the Premises, Landlord's Building or the Shopping Center. Accordingly, If any payment of Rent or other charges due hereunder is not received by Landlord in good funds on-within ten (101 davs after its due date, Tenant will pay to Landlord a late charge of five percent (5%) of the amount due. The parties agree that such late charge (as well as any other late charge under this Lease) represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment as hereinabove referred to by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant, while the payment of late charges is to compensate Landlord for Landlord's processing, administrative and other costs incurred by Landlord as a oz/z?/o?°^ {es ra_ ea i 309 yr 1/1 5/07 Rf GENCY INITIAL CFN'i'F.RS result of Tenant's delinquent payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount nor prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease, at law or in equity. If Tenant fails in two (2) consecutive months to make rental payments within ten (10) days after the due date, Landlord, in order to reduce its administrative costs may require, by giving written notice to Tenant (and In addition to the late charge stated herein, as well as any other rights and remedies accruing pursuant to Article 18, or any other term, provision or covenant of this Lease at law or in equity) that Minimum Annual Rent is to be paid quarterly in advance instead of monthly and that aN future rental payments are to be made on or before the due date by cash, cashier's check or money order, and that the delivery of Tenant's personal or corporate check will no longer constitute a payment of Rent as provided in this Lease. 5.1 TENANT'S PROPORTIONATE SHARE OF TAXES AND PAYMENT. Tenant shall pay to Landlord, as Additional Rent, Tenant's Proportionate Share of all real estate taxes, current and future, and other ad valorem taxes and assessments of every kind and Tenant's Proportionate Share of any reasonable costs and expenses (such as real estate tax consultant fees) that are incurred by Landlord in a good faith effort to reduce the amount assessed by the taxing authority provided Landlord's efforts result in a tax savings to Tenant with respect to the Shopping Center ("Taxes'). In the event any assessments may be paid in annual Installments, only the amount of such annual instalment and statutory interest shall be included within the computation of the annual Taxes for the Lease Year in question. Tenant shall pay its Proportionate Share of Taxes at the times and in the manner provided in Section 8.6. 5.2 RENT TAX. Should any governmental taxing authority acting under any present or future law, ordinance or regulation levy, assess or impose a tax, excise or assessment (other than an income or franchise tax) upon or against or measured by the Rent, or any part of it, Tenant shall pay such tax, excise and/or assessment when due or shall on demand reimburse Landlord for the amount thereof, as the case may be. 5.3 PERSONAL PROPERTY TAXES. Tenant shall be liable for, and shall pay before delinquency, all taxes and assessments (real and personal) levied against (a) any personal property or trade fixtures placed by Tenant in or about the Premises (including any increase in the assessed value of the Premises based upon the value of any such personal property or trade fixtures), and (b) any Tenant improvements or afterations in the Premises (whether installed and/or paid for by Landlord or Tenant). If any such taxes or assessments are levied against Landlord or Landlord's property, Landlord may, after written notice to Tenant (and under proper protest If requested by Tenant), pay such taxes and assessments, and Tenant shall reimburse Landlord therefor within ten (10) days after demand by Landlord; provided, however, Tenant, at its sole cost and expense, shall have the right, with Landlord's cooperation, to bring suit in any court of competent jurisdiction to recover the amount of any such taxes and assessments so paid under protest. ARTICLE 6. TENANT"S CONDUCT OF BUSINESS 6.1 HOURS. Tenant agrees that, from and after the Commencement Date, Tenant will continuously and uninterruptedly keep open and operate its entire store in the Premises for the purpose specified in Section 1.10) and under the trade name specified in Section 1.1(a) with the public daily during such hours as are antomary in the Shopping Center. Tenant receives the right to extend business hours as part of normal business operations. 7.1 SOLE USE AND TRADE NAME. Tenant shall use the Premises for the purpose specified in Section 1.10) and for no other purpose whatsoever and shall conduct its business in the Premises solely under the trade name specified in Section 1.1(a). Nothing in this Lease shall be construed to grant Tenant an exclusive right to the purpose specified in Section 1.10) or any other purpose or use. Tenant shall procure, at Tenant's sole expense, any permits or licenses required for the transaction of business in the Premises. 72 REQUIREMENTS AND RESTRICTIONS. Tenant agrees to comply with the Requirements and Restrictions set forth on Exhibit "E" attached hereto. ARTICLES. COMMON AREAS 8.1 MAINTENANCE. Landlord agrees to maintain, as part of Common Area Costs, the Common Areas including the rod in good condition; provided, however, that the manner in which the Common Areas shall be maintahned shall be solely determined by Landlord. If any owner or tenant of any portion of the Shopping Center maintains Common Areas located upon its parcel or premises (Landlord shall have the right, in its sole 02/27/070_ _ __ _ Jax ¢g 2509 vl 1815/07 R FCENCY rNITIAL CENTF,RS zl_- discretion, to allow any purchaser or tenant to so maintain Common Areas located upon its parcel or premises and to be excluded from participation in the payment of Common Area Costs), Landlord shall rat have any responsibility for the maintenance of that portion of the Common Areas and Tenant shall have no claims against Landlord arising out of any failure of such owner or tenant to so maintain its portion of the Common Areas. 82 COMMON AREAS DEFINED. 'Common Areas' means all areas, facilities, and improvements provided in the Shopping Center for the convenience and use of patrons of the Shopping Center, and shall include, but not be limited to, all areas, all parking areas and facilities, sidewalks, stairways, service corridors, truckways, ramps, loading docks, delivery areas, landscaped areas, access and interior roads, fighting facilities and similar areas and facifities situated within the Shopping Center which are not reserved for the exclusive use of any Shopping Center occupants. 8.3 LANDLORD'S CONTROL. Landlord shall at all times have the sole and exclusive control, management and direction of the Common Areas and the right to make reasonable changes to the Common Areas, and may at any time exclude and restrain any person from use or occupancy thereof. The rights of Tenant in and to the Common Areas are subject to the rights of others to use the same in common with Tenant. Landlord may at any time and from time to time close all or any portion of the Common Areas to make repairs, improvernerts, alterations or changes and, to the extent necessary in the opinion of landlord, to prevent a dedication thereof or the accrual of any rights to any person or to the public therein. 8.4 EMPLOYEE PARKING. Landlord may from time to time designate a particular parking area or areas to be used by its tenants and their employees. If Tenant or any of its employees fail to park their vehicle In any such designated parking areas, Landlord, in its sole discretion, may give Tenant notice of such violation and, if the violation is not corrected within two (2) days after said notice is given, Tenant shall pay to Landlord an amount equal to Ten Dollars ($10.00) per day for each violating vehicle calculated from and including the day on which notice was given, to and including the day when all violations by Tenant and its employees cease. In no event, however, shall Landlord be required to enforce any parking obligation stated herein. 8.5 COMMON AREA COSTS. 'Common Area Costs" means all costs incurred in a manner deemed by Landlord to be reasonable and appropriate and for the best interests of the Shopping Center in connection with the management, operation, maintenance, replacement and repair of the Common Areas, including but not limited to security, landscaping, utilities, painting, striping, lighting, management fee four percent (4%) of gross revenues and pest control among other items. 8.6 TENANT'S PROPORTIONATE SHARE OF COMMON AREA COSTS, TAXES AND INSURANCE. Tenant agrees to pay to Landlord, as Additional Rent, Tenant's Proportionate Share of Common Area Costs, Taxes and Insurance (as hereinafter defined) in the following manner. (a) Tenant shall pay Landlord on the Commencement Date and on the first day of each calendar month of the Term thereafter an amount estimated by Landlord to be Tenant's monthly Proportionate Share of the Common Area Costs, Taxes and Insurance. Landlord may adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated costs. (b) Within ninety (90) days following the end of each calendar year, or as soon as reasonably passible thereafter, Landlord shall endeavor to furnish Tenant a statement covering such year just ended, showing the Common Area Costs, Taxes and Insurance and the amount of Tenant's Proportionate Share of such costs for such year and the payments made by Tenant with reaped to such year. If Tenant's Proportionate Share of such costs is less than Tenants payments so made, Tenant shall be entitled to a credit of the difference or, N such share is greater than Tenant's said payments, Tenant shall pay Landlord the difference within thirty (30) days after receipt of such statement. (c) Any failure or delay by Landlord in delivering any estimated or final statement pursuant to this Section 8.6 shall not constitute a waiver of Landlord's right to receive Tenant's payment of Tenant's Proportionate Share of Common Area Costs, Taxes and Insurance. ARTICLE 9. HAZARDOUS SUBSTANCES 9.1 RESTRICTION ON USE. Tenant shall not use or permit the use of the Premises for the generation, storage, treatment, use, transportation, handling or disposal of any chemical, material or substance which is regulated as toxic or hazardous or exposure to which is prohibited, limited or regulated by any governmental authority, or which, even I not so regulated, may or could pose a hazard to the Premises, Shopping Center or property adjacent thereto or to the health or safety of persons on the Premises or other tenants or occupants of the Shopping Center or property adjacent thereto, and no such chemical, material or substance shall be brought onto the Premises without the Landlord's express written approval. Tenant agrees that it will at all times observe and abide by all laws and regulations relating to the handling of 02/27/070227A •• 406 lax Leal M90 1/15!07 Pf GE Cy INITIAL t`EIV7•FRS HERE / such materials and will promptly notify Landlord of (a) the receipt of any warning notice, notice of violation, or complaint received from any governmental agency or third party relating to environmental compliance, and (b) any release of hazardous materials on the Premises and/or Shopping Center. Tenant shall, in accordance with all applicable laws, carry out, at Its sole cost and expense, any remediiation required as a result of the release of any hazardous substance by Tenant or by Tenant's agents, employees, contractors or invitees, from the Premises and/or Shopping Center. In addition, Tenant shall immediately notify Landlord concerning any water intrusion or leakage In the Premises. Tenant shall provide Landlord with immediate access to the Premises in order to assess the damage. Repairs to the Premises shall be made by the party responsible. Should Tenant be responsible for the repairs and fail to correct immediately, Landlord shall make the repairs at Tenant's expense. Notwithstanding the foregoing, Tenant shall have the right to bring on to the Premises reasonable amounts of cleaning materials and the like necessary for the operation of Tenants business, but Tenants liability with respect to such materials shall be as set forth in this Article. 92 INDEMNIFICATION. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "Landlord Parties') from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, dean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from any environmental contamination on, in, under or about the Premises, Landlord's Building or any other portion of the Stopping Center and which are caused or permitted by Tenant or any of Tenant's agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, 'Tenant Parties'). 9.3 SURVIVAL. The provisions of this Article shall survive the termination of this Lease. ARTICLE 10. ALTERATIONS TO PREMISES 10.1 ALTERATIONS; DAMAGE& Tenant shall make no structural alterations, additions or changes in or to the Premises without Landlord's prior written consent and subject to the conditions and requirements for alterations attached hereto as Exhibit "F'. 102 COMPLIANCE WITH LAWS. Any permitted changes, alterations and additions made by Tenant shall be performed strictly in accordance with applicable laws, rules, regulations and building codes relating thereto including, without limitation, the provisions of Title III of the Americans with Disabilities Act of 1990. Throughout the performance of Tenant's alterations, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance and commercial general liability insurance in forth and substance satisfactory to Landlord and naming Landlord as an additional insured thereunder. 11.1 LANDLORD'S LIABILITY. Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of any persons or damage to any property on or about the Premises from any cause whatsoever, except to the extent any such matter is not covered by insurance required to be maintained by Tenant under this Lease and is attributable to Landlord's gross negligence or willful misconduct. 112 INDEMNIFICATION BY TENANT. Tenant hereby agrees to indemnify and save Landlord harmless from all claims, actions, judgments, suits, losses, fines, penalties, demands, costs and expenses and liability whatsoever, including reasonable attorneys' fees, expert fees and court costs ('Indemnified Claims") on account of (I) any damage or liability occasioned in whole or in part by any use or occupancy of the Premises or by any act or omission of Tenant or the Tenant Parties, (11) the use of the Premises and Common Areas and conduct of Tenant's business by Tenant or any Tenant Parties, or any other activity, work or thing done, permitted or suffered by Tenant or any Tenant Parties, in or about the Premises, Landlord's Building or elsewhere on the Stopping Center, and/or (iii) any default by Tenant of any obligations on Tenant's part to be performed under the terms of this Lease. In case any action or proceeding is brought against Landlord or any Landlord Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld. Tenant shall not be liable for damage or injury occasioned by the gross negligence or willful acts of Landlord or its agents, contractors, servants or employees unless such damage or injury arises from perils against which Tenant is required by this Lease to insure and then only to the extent of such insurance. Tenant's indemnification obligation under this Section 112 shall survive the expiration or earlier termination of this Lease. Tenants covenants, agreements and indemnification in Sections 11.1, 112 and 11.7, are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Tenant pursuant to the provisions of this Lease. io { o2/z7 o7 2509vJ 11IN07 Rrr,ENC,V INITIAL rF?vTERS HERE 11.3 INSURED'S WAIVER. In the event of loss or damage to the property of Landlord or Tenant, each party will look first to its own insurance before making any claim against the other. To the extent possible, each party shall obtain, for all policies of insurance required by this Lease, provisions permitting waiver of subrogation against the other party, and each party, for itself and its insurers, hereby waives the right to make any claim against the other (or its agents, employees or insurers) for loss or damage covered by the insurance requirements of this Lease. 11.4 TENANT'S INSURANCE. (a) Tenant agrees that, from and after the date of delivery of the Premises to Tenant, Tenant will carry at its sole cost and expense the following types of insurance, in the amounts specified and in the form hereinafter provided for. 1. Public Liability and Property Damage Insurance covering the Premises and Tenant's use thereof against claims for personal injury or death and property damage occurring upon, in or about the Premises, such insurance to afford protection to the limit of not less than $1,000,000.00 in respect of injury or death of any number of persons arising out of any one occurrence and such insurance against property damage to afford protection to the limit of not less than 6500,000.00 in respect to any instance of property damage. The insurance coverage required under this Section 11.4(a)1 shall, in addition, extend to any liability of Tenant arising out of the indemnities provided for in Section 11.2; and 2. Tenant Improvements and Property insurance covering all of the items included in Tenant's Work, Tenants leasehold improvements, heating, ventilating and air conditioning equipment, trade fixtures, signage and personal property from time to time in, on or upon the Premises and, to the extent not covered by Landlord's similar insurance, alterations, additions or changes made by Tenant pursuant to Article 10, in an amount not less than their full replacement cost, providing protection against perils included within standard forms of all risk coverage insurance policy, together with such other coverage the Landlord deems appropriate (i.e. flood and/or earthquake). Any policy proceeds from such insurance shall be hell in trust by Tenant for the repair, reconstnklion, restoration or replacement of the property damaged or destroyed, unless this Lease shall cease and terminate under the provisions of Article 12. (b) All policies of insurance provided for in Section 11.4(a) shall be issued in forth acceptable to Landlord by insurance companies with general policyholders rating of not less than A and a financial rating of Class VI as rated in the most currently available 'Best's Insurance Reports' and qualified to do business in the state in which the Premises is located. Each such policy shall be issued in the names of Landlord and Tenant and any other parties in interest from time to time designated in writing by notice by Landlord to Tenant. Said policies shall be for the mutual and joint benefit and protection of Landlord and Tenant and executed copies of each such policy of insurance or a certificate thereof shall be delivered to Landlord upon delivery of possession of the Premises to Tenant and thereafter within thirty (30) days prior to the expiration of each such policy. As often as any such policy shall expire or terminate, renewal or additional policies shall be procured and maintained by Tenant in like manner and to lice extent. All such policies of insurance shall contain a provision that the oomparry writing said policy will give Landlord at least thirty (30) days' notice in writing in advance of any cancellation, or lapse, or the effective date of any reduction in the amounts, or insurance. Ali such public liability, property damage and other casualty policies shall be written as primary policies which do not contribute to any policies which may be carried by Landlord. All such public liability and property damage policies shall contain a provision that Landlord, although named as an insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, its servants, agents and employees by reason of the negligence of Tenant. Any insurance provided for in Section 11.4(a) may be effected by a policy of blanket Insurance, covering additional items or locations or insureds; provided, however, that (i) Landlord shall be named as an additional insured thereunder as its interest may appear, (ii) the coverage afforded Landlord will not be reduced or diminished by reason of the use of such blanket policy of insurance; (iii) any such policy or policies (except any covering the risks referred to in Section 11.4(a)(1) shall specify therein (or Tenant shall furnish Landlord with a written statement from the insurers under such policy specifying) the amount of the total Insurance allocated to the *Tenant Improvements and Property more specifically detailed in Section 11.4(a)(2); and (iv) the requirements set forth herein are otherwise satisfied. Tenant agrees to permit Landlord at all reasonable times to inspect the policies of insurance of Tenant covering risks upon the Premises for which policies or copies thereof are not delivered to Landlord. 11.5 LANDLORD'S INSURANCE. (a) Landlord shall, as part of the Common Area Costs, at all times during the Term maintain in effect a policy or policies of insurance covering the Landlord's Building and the Common Areas (excluding Tenant improvements and property required to be insured by Tenant pursuant to Section 11.4(a)) in an amount not less than the full replacement cost (exclusive of the cost of excavations, foundations and footings), providing protection against perils included within standard forms of fire and extended coverage insurance policies, together with insurance against sprinkler damage, vandalism, and malicious mischief, and such other risks as Landlord may from time to time determine and with any such deductibles as Landlord may from tine to time determine and public liability insurance in such amounts as Landkxd deems to be reasonable. Any insurance provided for in Sections 11.5(a) or (b) may be effected by a policy or policies of blanket insurance, covering additional items or locations or insureds, 11 02/27/07°-^-"^ ^ Jax Legal 2504 vl 1/15/07 E RS INITXCENTERS C'EN provided that the requirements of Section 11.5(a) are otherwise satisfied. In addition, at Landlord's option, Landlord may elect to self-insure all or any part of such required insurance coverage. Landlord may, but shaft not be obligated to, carry any other form or forms of insurance as Landlord or the mortgagees or ground lessors of Landlord may reasonably determine is advisable. All insurance required hereunder may be referred to as 'Insurance'. (b) Landlord may carry rent Insurance with respect to the Premises in an aggregate amount equal to eighteen (18) or more times the sum of (i) the monthly require ment of Minimum Annual Rent, plus (ii) the sum of the amounts estimated by Landlord to be payable by Tenant for Additional Rent and Percentage Rent for the month immediately prior to the month in which the policy is purchased or renewed. (c) Tenant agrees to pay Tenant's Proportionate Share of premiums for the Insurance provided pursuant to Section 8.6 of this Lease. Tenant shall have no rights in any Insurance maintained by Landlord nor shall Tenant be entitled to be a named insured thereunder. 11.6 COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS. Tenant agrees at its sole cost and expense, to comply with all reasonable recommendations and requirements with respect to the Premises, or its use or occupancy, of the insurance underwriters and any similar public or private body, and any governmental authority having jurisdiction over insurance rates with respect to the use or occupancy of the Shopping Center. Tenant shall not do or suffer to be done anything upon or in the Premises which will contravene Landlord's policies of insurance or cause an increase in Landlords insurance rates. 11.7 UNIT OF LANDLORD'S RESPONSIBILITY. Except to the extent such matter is not covered by the insurance required to be maintained by Tenant under this Lease and is attributable to the gross negligence or willful misconduct of Landlord, Landlord shall not, without limiting the generality of Section 11.1 hereof, be responsible or liable to Tenant or the Tenant Parties for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying space in any other part of the Shopping Center, or for any loss or damage resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or for any damage caused by water leakage from any part of the Premises or from the pipes, appliances or plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or loss of property within the Premises from any cause whatsoever or any damage caused by other tenants or persons in the Premises, occupants of adjacent property of the Shopping Center, or the public, or caused by construction of any private, public or quasi-public work. 12.1 DESTRUCTION. Subject to the provisions of 12.2, 12.3 and 12.4 below, if the Premises shall be damaged by any casualty, Landlord shall promptly restore same to their condition immediately prior to the occurrence of the damage to the extent of insurance proceeds received, and the Minimum Rent and other charges shall be abated proportionately as to that part of the Premises rendered untenantable. 12.2 LANDLORD'S ELECTION. If the Premises (i) are rendered wholly untenantable; (if) are substantially damaged (i.e., the cost to repair or replace exceeds SO% of their value) as a result of a risk which is not covered by Landlord's insurance; (iii) are substantially damaged during the last year of the term or of any renewal term hereof, regardless of insurance coverage; Qv) or the building of which they are a part (whether the Premises are damaged or not), or all of the buildings which then comprise the Shopping Center, are damaged to the extent of fifty percent (80%) or more of the value thereof, so that the Shopping Center cannot in the reasonable judgment of Landlord be operated as an integral unit; or (v) are damaged and the holder of any mortgage, deed of trust or other lien requires the use of all or any part of Landlord's insurance proceeds in satisfaction of all or a part of this indebtedness secured by any such mortgage, deed of trust or other lien, then or in any of such events, Landlord may either elect to repair the damage to the extent of insurance proceeds received or may cancel this Lease by notice of cancellation within ninety (90) days after such event (whereupon this Lease shall expire and Tenant shall vacate and surrender the Premises to Landlord). Tenant's liability for rent, subject to the provisions regarding abatement of minimum rent contained above, shall continue until the date of termination of this Lease. 123 TENANTS ELECTION. If Landlord fails to commence the restoration within one hundred twenty (120) days after the casualty and such delay is not caused by Tenant (or any Tenant Parties) or any everts of force majeure, Tenant shall have the right to terminate this Lease by notice to Landlord given prior to Landlord's commencement of construction. In addition, Tenant shall have the right to terminate this Lease by giving written notice to Landlord of exercise thereof within one hundred twenty (120) days after the date Landlord's Building is damaged or destroyed if: (a) no part of the Premises remains tenantable after damage or destruction thereof from any cause; or 12 02/27/0 7 1aX UIM12.509 vI 1/1= k rC,ENCy INITIAL CENTERS ;7= (b) the damage or destruction of the Landlord's Building occurs within the last twelve (12) months of the Term. 12A REPAIR. ETC. In the event Landlord elects to repair the damage, any abatement of rent shall end the earlier of (i) sixty (60) days after notice by Landlord to Tenant that the Premises have been repaired or (ii) the date Tenant reopens the damaged Premises for business. Unless this Lease is terminated by Landlord, Tenant shall refixture the Premises in a manner and to a condition equal to that existing prior to its destruction or casualty, and the proceeds of all insurance carried by Tenant on Its property and improvements shall be held in trust by Tenant for the purpose of said repair and replacement. ARTICLE 13. MAINTENANCE OF PREMISES 13.1 LANDLORD'S DUTY TO MAINTAIN. Landlord will, as part of the Common Area Costs, keep the exterior walls, structural columns and structural floor or floors (excluding outer floor and floor coverings, walls installed at the request of Tenant, doors, windows and glass) in good repair. Notwithstanding the foregoing provisions of this Section, Landlord shall not in any way be liable to Tenant on account of its failure to make repairs unless Tenant shall have given Landlord written notice and afforded Landlord a reasonable opportunity to effect the same after such notice. 132 TENANTS DUTY TO MAINTAIN. Tenant will, at its own cost and expense, maintain the Premises (except that part Landlord has agreed to maintain) in good and tenantable condition, and make all repairs to the Premises and every part thereof as needed. Tenant's obligations under this Section shall include, but not be limited to, modifying, repairing and maintaining items as are required by any governmental agency having jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen), interior walls and glass, and the interior portions of exterior walls, ceilings, utility meters, pipes and conduits within the Premises, and all utility meters, and all pipes and conduits outside the Premises between the Promises and the service meter, all fixtures, HVAC equipment (whether such HVAC equipment is located inside or outside the Premises) in c omplisncce with all Laws including environmental, sprinkler equipment and other equipment within the Premises, the store fronts and all exterior glass, all of Tenant's signs, locks and closing devices, and all window sashes, casement or frames, doors and door frames; provided that Tenant shall make no adjustment, alteration or repair of any part of any sprinkler or sprinkler alarm system in or serving the Premises without Landlord's prior approval. Tenant shall contract with a service company approved by Landlord for the preventive maintenance of the HVAC and a copy of the service contract (which contract shall be subject to Landlord's approval) shall be furnished by Tenant to Landlord within ten (10) days after Tenants opening for business, and a copy of any subsequent contract shall be furnished by Tenant to landlord within ten (10) days after the same becomes effective. Such service contract must provide for at least four (4) visits, inspections and services each year and the regular changing of fillers. Ali broken glass, both exterior and interior, shall be promptly replaced by Tenant with glass of the same kind, size and quality. Tenant shall permit no waste, damage or injury to the Premises and Tenant shall initiate and carry out a program of regular maintenance and repair of the Premises, including the painting or refinishing of all areas of the interior and the store front, so as to impede, to the extent possible, deterioration by ordinary wear and tear and to keep the same in attractive condition. Tenant will not overload the electrical wiring serving the Premises and will install, at its expense, with Landlord's written approval, any additional electrical wiring required in connection with Tenants apparatus. Landlord shall be under no obligation to make any repairs, replacements, reconstruction, alterations, or improvements to or upon the Premises or the mechanical equipment exclusively serving the Premises except as expressly provided for herein. 13.3 LANDLORD'S RIGHT OF ENTRY AND USE. Landlord and its authorized representatives may enter the Premises at any and all times during usual business hours of the Shopping Center occupants for the purpose of inspecting or repairing the same. Landlord has the right to lock any tenant space that has begun construction without Landlord's authority or approval. 13.4 CONFLICTS. If there is a conflict between the provisions of this Article 13 and Article 12, the provisions of Article 12 shall govern. 14.1 GAS, GARBAGE DISPOSAL, WATER, SANITARY SEWER, TELEPHONE AND ELECTRIC SERVICE. Tenant shall pay for all utilities and sanitary services used within the Premises and make such deposits or pay such permits required by the utility or sanitary service company providing the same, including but not limited to: application and installation of temporary and permanent meters for construction. Landlord shall not be liable for any interruption or failure whatsoever in utility services, nor shall any such failure or interruption oonstitute an actual or constructive eviction of Tenant from the Premises or result in or give rise to any abatement in any Rent reserved hereunder. Upon written request from Landlord, Tenant will, at Tenant's expense, contract with the service company designated by Landlord for the disposal of all 13 02/27/0793,'2:;'G:?02 =? ?4:i„3,'9S Jax kcga12509 vl 1115W07 INITIAL Rf%OENC,, NSRB CENTERS trash and garbage from the Premises. Tenant will fumish to Landlord a copy of such contract prior to opening for business, and a copy of each renewal of such contract shall be furnished to Landlord at least seven (7) days prior to the expiration of the existing contract. Landlord shall have the right to designate vendors to provide utility services and garbage collection services to the Premises, provided that the cost of such service is generally competitive in the vicinity of the Shopping Center. Should landlord provide utilities to the Shopping Center, Tenant shall pay its proportionate share for the use of the utilities in the manner described in Section 8.6 hereof. ARTICLE 15. LIENS 15.1 NO LIENS PERMITTED; DISCHARGE. Landlord's property shall not be subject to liens for work done or materials used on the Premises made at the request of, or on order of or to discharge an obligation of, Tenant. This paragraph shall be construed so as to prohibit, in accordance with the provisions of State law, the interest of Landlord in the Premises or any part thereof from being subject to any lien for any improvements made by Tenant or any third party on Tenant's behalf (except Landlord) to the Premises. If any lien or notice of lien on account of an alleged debt of Tenant or any notice of lien by a party engaged by Tenant or Tenants contractor or materialmen to work on the Premises shall be filed against the Shopping Center or any part thereof, Tenant, within ten (10) days after notice of the filing thereof, will cause the same to be discharged of record by payment, deposit, bond, order of a court of oompeteM jurisdiction or otherwise. N Tenant shall fail to cause such lien or notice of lien to be discharged and released of record within the period aforesaid, then, in addition to any other right or remedy, Landlord may discharge the same either by paying the amounts claimed to be due or by procuring the discharge of such Men by deposit or by bonding procedures. Any amount so paid by Landlord and all costs and expenses, including attorneys' fees and court costs, incurred by Landlord in connection therewith, and including interest at the Default Rate, shall constitute Additional Rent and shall be paid by Tenant to Landlord on demand, or be deducted from Tenant Allowance or Construction Allowance monies owed to Tenant by Landlord, if any. ARTICLE 16. SIGNAGE Tenant shall at its own expense erect a sign on the exterior sign band of the Premises, which sign shall: (i) conform to the general material, size and appearance of other tenants' signs at the Shopping Center, (ii) be in strict conformity with any guidelines or sign criteria adopted by Landlord with respect to the Shopping Center, including, without limitation, the sign criteria set forth in Exhibit 'C-1' attached hereto and made a part hereof, (9) be in accordance with all applicable laws, (iv) be installed by a contractor or other party which meets with Landlord's prior approval, and (v) be otherwise subject to Landlord's prior written approval. Landlord will not be liable to Tenant or any Tenant's contractor or city requirements pertaining to signage. If at any time during the Term, Landlord determines to replace the sign above the exterior of the Premises in connection with a general renovation of the Shopping Center or otherwise, then Tenant shall pay (or reimburse to Landlord, as the case may be) the cost of replacing such sign. 17.1 RESTRICTIONS ON ASSIGNMENT. Tenant shall have no right to transfer, assign, sublet, enter into license or concession agreements, or mortgage or hypothecate this Lease or the Tenant's interest in the Premises or any part thereof without Landlord's consent. Any attempted transfer, assignment, subletting, license or concession agreement, or hypothecation shall be void and confer no rights upon any third person and shall be a violation of this Section. Any transfer of this Lease from Tenant by merger, consolidation, liquidation or otherwise by operation of law, including, but not limited to, an assignment for the benefit of creditors, shall be included in the tens 'assignment' for the purposes of this Lease and shall be a violation of this Section. Landlord may deny its consent to assignment without cause or justification and may impose such conditions upon the granting of its consent as it may deem appropriate, including, without limitation, requiring the assignee to agree to new or different terms. To review any proposed assignment Landlord will require sixty (60) days to review tenants submission of (1) the name of the entity receiving such transfer (the `Transferee'); (ii) a detailed description of the business of the Transferee; (iii) audited financial statements of the Transferee; (iv) all written agreements governing the transfer, (v) I the Transferee is an individual, a true and correct copy of the Transferee's driver's license; (vi) any information reasonably requested by the Landlord with respect to the transfer or the Transferee; and (vii) a fee of fifteen hundred dollars ($1,500.00) to compensate Landlord for legal fees, costs of administration, and other expenses incurred in connection with the review and processing of such documentation. Notwithstanding the foregoing, Landlord's consent will not be deemed unreasonably withheld stmid Tenant request an assignment of this Lease within the first eighteen (18) months of the initial lease term. I Tanana- shall be-allowed-to eaU19161 ar 01heW _ 9081 IS s „s T . the 901 172 NO RELEASE. No Transfer will release Tenant of Tenant's obligations under this Lease or after the primary liability of 14 02/27/070_; 2 Jax Uza13309 vl 1/1.V07 I6I RECENC r 7j--:: CENTERS Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. Consent by Landlord to one transfer will not be deemed consent to any subsequent Transfer. In the event of default by any Transferee of Tenant or any successor Tenant in the performance of any of the terns hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. 17.3 CONSIDERATION PAID BY SUBLESSEE OR ASSIGNEE: In the event that Landlord consents to a sublease and the rental due and payable by the sublessee (or a combination of the rent payable under such sublease plus any bonus or other consideration therefore or incident thereto) exceeds the Rent payable under this Lease, or if with respect to an assignment, permitted license or other transfer by Tenant permitted by Landlord, the consideration payable to Tenant by the assignee, licensee or other transferee exceeds the Rent payable under this Lease, then Tenant shall be bound and obligated to pay Landlord all such excess rental and other excess consideration within ten (10) days following receipt thereof by Tenant from such sublessee, assignee, licensee or other transferee as the case may be plus Tenant shall pay to Landlord on an ongoing basis the Percentage Rent paid by Tenant for the immediate 12 month period prior to the transfer of this Lease Agreement. Finally, in the event of any assignment or subletting, it is understood and agreed that all rentals paid tD'Tenant by an assignee or sublessee shall be received by Tenant in trust for Landlord, to be forwarded immediately to landlord (to be applied as a credit and offset to Tenants Rent obligations). 17A CHANGE OF OWNERSHIP. If Tenant or any Guarantor is a corporation, unincorporated association or partnership, a transfer, assignment or hypothecation of any stock or interest in such corporation, limited liability company, association or partnership by any stockholder or partner so as to result in a change in the control thereof by the person, pennons or entities owning a majority interest therein as of the date of this Lease, shall be deemed to be an assignment of this Lease. This provision shah not be applicable to Tenant or to any Guarantor if it is a corporation whose voting stock is fisted on a national securities exchange (as defined in the Securities Exchange Act of 1934, as amended) or is traded in any recognized over-the-counter market. 17.5 FRANCHISE ARTICLE 18. DEFAULTS BY TENANT 18.1 EVENTS OF DEFAULT. The following shall each be deemed to be an event of default (each of which is sometimes referred to as an "Event of Default') in this Lease: (a) any part of the Rent required to be paid by Tenant under this Lease shall at any time be unpaid with a 10 day cure Dedod from any Notice of Default served on Tenant (b) Tenant fails in the observance or performance of any of its other covenants, agreements or conditions provided for in this Lease, and said fallure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant (unless such failure cannot reasonably be cured within ten (10) days and Tenant shall have commenced to cure said failure within said ten (10) days and continues diligently to pursue the curing of the same, which cure shall occur no later than sixty (60) days from the date of such notice from Landlord); (c) Tenant fails, after the date on which it is required by this Lease to open the Premises for business with the public, to be open for business as required by this Lease, or vacates or abandons the Premises. Tenant shall not be deemed in default should the business close so Iona as Tenant continues to pay rent and does not exceed a thirty (30) 60 day period; (d) the estate created in Tenant or any Guarantor hereof is taken in execution or by other process of law, or all or a substantial part of the assets of Tenant or any Guarantor hereof is placed in the hands of a liquidator, receiver or trustee (and such receivership or trusteeship or liquidation continues for a period of thirty (30) days), or Tenant or any such Guarantor makes an assignment for the benefit of creditors, or admits in writing that it cannot meet its obligations as they become due, or is adjudicated a bankrupt, or Tenant or any such Guarantor institutes any proceedings under any federal or state insolvency or bankruptcy law, or under any other act relating to the subject of bankruptcy wherein the Tenant or any such Guarantor seeks to be adjudicated as bankrupt, or to be discharged of its debts, or to effect a plan of liquidation, composition or reorganization, or should any involuntary proceedings be filed against Tenant or any such Guarantor under any such insolvency or bankruptcy law and such proceeding not be removed within ninety (90) days thereafter. If any insolvency proceedings, such as those referred to in this Section 18.1(d), are is 02/27/0702'2^'^ ` Jax a125090 I/15!07 INITIAL R rG ENC'Y' C`F.NTERg instituted against Tenant, the Premises shall not become an asset in any such proceedings; 182 LANDLORD'S REMEDIES. Upon the occurrence of any Event of Default in addition to all other remedies available to Landlord at law or in eauity. Landlord shall have the option to Pursue any one or more of the following alternative and cumulative remedies without any notice or demand whatsoever. 0%). reiettina without termination by Landlord because of any default by Tenant Landlord may at any time after such reiettina elect to terminate this Lease for any such default, 16 02 27 07 Jax a12509 vi 1115107 r!GENC-, INITIAL CF.NTEk? that Tenant Proves reasonably could be avoided: plus (iv) any other amount (c) In the event Landlord elects to re-enter the Premises under (b) above or takes 18.3 ATTORNEYS' FEES AND COSTS. In the event that any action, suit or other proceeding is initiated concerning or arising out of this Lease, the prevailing party shall recover all of such party's costs and attorneys' fees Incurred in each and every action, suit or other proceeding, including any and all appeals or petitions therefrom from the non- prevailing party. As used herein, "attorneys' fees' shall mean the full and actual costs of any legal services actually rendered in connection with the matters involved, calculated on the basis of the usual fee charged by the attorney performing such services, 18A TENANT'S PROPERTY TO REMAIN. If there is an Event of Default, all of the Tenants fixtures, furniture, equipment, improvements, additions, alterations, and other personal property shall remain on the Premises and, in that event and continuing during the length of said default, Landlord shall have the right to take the exclusive possession of same 17 oz/27/07n? 87-14¢93{06 Jax ltgaf 2509 vl i/I S/07 REGENCY EM CF.NTFR C HINITIAL U10 S411R7 Ome or omerwnse and to use same, without cost, until all defaults are cured or, at its option, at any time during the Term to require Tenant to forthwith remove same. 18.5 CONFESSION OF JUDGMENT AGAINST TENANT. THE FOLLOWING SECTION SETS FORTH WARRANTS OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT AND TO EXECUTE UPON SAID JUDGMENTS. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, AND TO EXECUTE UPON SAID JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING TO DETERMINE ITS RIGHTS AND LIABILITIES UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES. TENANT FURTHER KNOWINGLY, INTELLIGENTLY, VOLUNTARILY AND UNCONDITIONALLY ACKNOWLEDGES THAT LANDLORD MAY, UNDER THE CIRCUMSTANCES SET FORTH BELOW, OBTAIN A JUDGMENT AGAINST TENANT FOR POSSESSION OF THE LEASED PREMISES WITHOUT THE PRIOR KNOWLEDGE OR CONSENT BY TENANT AND WITHOUT OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE, SET OFF, COUNTERCLAIM OR OTHER CLAIM TENANT MAY HAVE. THIS KNOWING, INTELLIGENT AND VOLUNTARY WAIVER APPLIES TO THE JUDGMENT BEING ENTERED BY CONFESSION AS WELL AS TO THE EXECUTION OF THAT JUDGMENT AGAINST TENANT. UPON THE FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND TENANT WITH A BANK THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT, AND TO SIGN FOR AND/OR FILE ANY ACTION OR ACTIONS IN EJECTMENT IN ANY COMPETENT COURT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH A COPY OF THIS LEASE, VERIFIED BY AFFIDAVIT, SHALL BE ITS SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS. LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND TENANT WITH A BANK THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE LEASED PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE LEASED PREMISES AS HEREINABOVE PROVIDED. IN ANY ACTION OF EJECTMENT, LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY HIM OR SOMEONE ACTING FOR HIM, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, AND, IF A TRUE COPY OF THIS LEASE (OR A TRUE COPY OF SUCH AFFIDAVIT) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT THEREBY RELEASES TO LANDLORD AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT ALL ERRORS IN SUCH PROCEEDINGS AND ALL LIABILITY THEREOF. IF PROCEEDINGS SHALL BE COMMENCED BY LANDLORD TO RECOVER POSSESSION UNDER THE ACTS OF ASSEMBLY AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF THE TERM OR UPON THE EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, TENANT, SPECIFICALLY WAIVES THE RIGHT TO THE THREE (3) MONTHS NOTICE AND TO THE FIFTEEN (15) OR THIRTY (30) DAYS' NOTICE REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AND AGREES THAT FIVE (5) DAYS NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE. ARTICLE 19. LIMITATION OF • LORD'S LIABILITY 19.1 LANDLORD'S DEFAULT. Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord falls to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall have commenced to cure said failure within said thirty (30) days and continues diligently to pursue the curing of the same). If Landlord defaults under this Lease and if, as a consequence of such default, Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment against the right, title and interest of landlord in the Shopping Center as the same may then be constituted and encumbered, and Landlord shall not be liable for any deficiency. In no event shall Tenant have the right to levy execution against any property of Landlord other than its Interest in the Shopping Center. Upon any such uncured default by Landlord, Tenant may exercise any of its rights provided in law or at equity; provided, however. (a) Tenant shall have no right to offset or abate rent in the event of any default by Landlord under this Lease, except to the extent offset rights are specifically provided to Tenant in this Lease; (b) Tenant shall have no right to terminate this Lease; and (c) Tenant's rights and remedies 18 02/27/0799""^ 1/84/66 Jax Legal 1509 vi I/15j07 INITIAL REGENCY CENTERS hereunder shall be limited to the extent (7 Tenant has expressly waived in this Lease any of such rights or remedies and/or (11) this Lease otherwise expressly limits Tenant's rights or remedies. Notwithstanding anything contained in this Lease to the contrary, the obligations of Landlord under this Lease (Including any actual or alleged breach or default by Landlord) do not constitute personal obligations of the individual partners, directors, officers, members or shareholders of Landlord or Landlord's partners, and Tenant shall not seek recourse against the individual partners, directors, officers, members or shareholders of Landlord or against Landlord's partners or any other persons or entities having any interest in Landlord, or any of their personal assets for satisfaction of any liability with respect to this Lease. 182 TRANSFER OF LANDLORD'S INTEREST. In the event of the sale or other transfer of Landlord's Interest in the Premises (except in the case of a sale-leaseback financing transaction in which Landlord is the lessee), Landlord shad transfer and assign to such purchaser or transferee the Security Deposit whereupon Landlord shall be deemed released from all liability and obligations hereunder arising out of any act, occurrence or omission relating to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant agrees to attom to any successor, assignee, mortgagee or ground lessor of Landlord. 20.1 SUBORDINATION OF LEASE AND TENANTS ATTORNMENT. This Lease is subordinate to the lien of all mortgages, deeds of trust, security instruments, ground leases, easement agreements and any covenants, conditions and restrictions (collectively, 'Superior Interests*) now or hereafter covering all or any part of the Shopping Center, and to all amendments, modfications, consolidations, renewals, replacements and extensions thereof. Tenant also agrees that, if any mortgagee elects to have this Lease prior to the lien of its mortgage and signifies such election in the instrument creating its lien, or by separate recorded instrument, this Lease shall be prior in dignity to such mortgage. In the event of any proceedings brought for the enforcement of any Instrument of any Superior Interest holder (including but not limited to a mortgage or lease), Tenant shall, upon demand by the Superior Interest holder, attom to and recognize such Superior Interest holder as Landlord under this Lease. In the event of a sale or assignment of Landlord's interest under this Lease or in the Premises, Tenant shelf attom to and recognize such purchaser or assignee as Landlord under this Lease without further act by Landlord or such purchaser or assignee. Tenant hereby waives its rights under any current or future law which gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any such foreclosure proceeding or sale. 20.2 INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees that, in order to confirm the provisions of this Article, but in no way limiting the self- operative effect of said provisions, Tenant shall execute and deliver whatever instruments may be required for such purposes within ten (10) days following Landlord's written request. Should Tenant fail to sign and return any such instruments within said ten (10) day period, Tenant shall be in default hereunder without the benefit of any additional notice or cure periods specified in this Lease. ARTICLE 21, ESTOPPEL CERTIFICATES 21.1 TENANT'S AGREEMENT TO DELIVER. Within ten (10) days after request therefor from Landlord, Tenant agrees to execute and deliver to Landlord, or to such other addressee or addressees as Landlord may designate (and any such addressee may rely thereon), a statement in writing certifying (if true) that the Lease is in full force and effect and unmodified or describing any modifications; that Tenant has accepted the Premises; that Landlord has performed all of its obligations under the Lease arising prior to the date of the certificate; that there are no defenses or offsets against the enforcement of this Lease or stating with particularity those claimed by Tenant; stating the date to which Rent has been paid; and making such other true representations as may be reasonably requested by Landlord. ARTICLE 22. GUIET ENJOYMENT 22.1 FAITHFUL PERFORMANCE. Upon payment of the Rent herein provided for and the observance and performance of all of the agreements, covenants, terms and conditions to be observed and performed by the Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for the Term without hindrance or interruption by Landlord or any other person or persons lawfully or equitably claiming by, through or under Landlord. ARTICLE 23. SURRENDER AND HOLDING OVER 25.1 DELIVERY AFTER TERM. Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlier termination of the. Term, broom dean, free of debris, in good order, condition and state of repair (except as may be Landlord's obligation under this Lease and ordinary wear and tear), and shall deliver 19 02/27/0792?27?0;9242?97 3#93,46- )ax Lqa 2509 v? r?? 5!0'7 IAITrAL RPGENr_. ; Hexs CENTFRS the keys at the office of Landlord in the Shopping Center or to Landlord at the address to which notices to Landlord are to be sent. If not sooner terminated as herein provided, this Lease shall terminate at the end of the Term as provided for in Article 3 w*xKlt the necessity of notice from either Landlord or Tenant to terminate the same, Tenant hereby waiving notice to vacate the Premises and agreeing 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. 232 EFFECT OF HOLDING OVER; RENT. If Tenant or any party claiming under Tenant remains in possession of the Premises, or any part thereof, after any termination or expiration of this Lease, no tenancy or interest in the Premises shall result therefrom, but such holding over shall be an unlawful detainer and all such parties shad be subject to nnmediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages, a sum equal to all Percentage ReM N any, and Additional Rent provided for in this Lease during any period which Tenant shall hold the Premises after the Term has expired, plus an amount computed at the rate of double the Minimum Annual Rent for such period. In addition, Tenant shad mderrnify, protect, defend (by counsel approved in writing by Landlord) and hold Landlord harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) resulting from such failure to surrender, including, without limitation, any claim made by any succeeding tenant based thereon. The foregoing indemnity shall survive the expiration or earlier termination of this Lease. The foregoing provisions of this Section 232 are in addition to, and do not affect, landlord's right of re-entry or any other rights of Landlord hereunder or otherwise provided by law or equity. ARTICLE 24. CONDEMNATION 24.1 ALL OF PREMISES TAKEN. 0 the whole of the Premises shad be taken either permanently or temporarily by any right of eminent domain or conveyance in lieu thereof (each being hereinafter referred to as "condemnation"), this Lease shall terminate as of the day possession shall be taken by the condemning authority. 24.2 LESS THAN ALL OF PREMISES TAKEN. If twenty percent (2096) or more of the GLA in the Premises is taken by condemnation or if (regardless of the percentage of the GLA in the Premises which is taken) the remainder of the Premises is divided in two (2) or more units, then in either event Landlord and Tenant shall have the right to terminate this Lease upon ninety (90) days written notice after possession is taken by such condemnation whereupon the Lease shall terminate as of the day possession shall be taken by such condemning authority. Tenant shall pay Rent and perform all of its other obligations under this Lease up to that date. If this Lease is not so terminated, the GLA of the Premises shall be accordingly adjusted as of the date of the taking, Rent shall be accordingly adjusted and any pre-paid Rent shall be proportionately credited or debited to Tenant. Thereafter, the Rent shall be based on the square footage of GLA in the Premises. Landlord agrees, at Landlord's cost and expense, as soon as reasonably possible, to restore the Premises on the land remaining to a complete unit of like quality and character as existed prior to such appropriation or taking, provided that Landlord shall not be required to expend more on such restoration than the condemnation award received by Landlord (less all expenses, costs, legal fees and court costs inured by Landlord in connection with such award). 24.3 SHOPPING CENTER TAKEN. (a) If any part of the Shopping Center (including any easement appurtenant to Landlord's interest therein) is taken by condemnation so as to render, in Landlord's judgment, the remainder unsuitable (in Landlord's discretion) for use as a retail shopping center, Landlord shall have the right to terminate this Lease upon notice in writing to Tenant within one hundred twenty (120) days after possession is taken by such condemnation. If Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning authority, and Tenant shall pay Rent and perform all of its obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as may have been paid in advance for a period subsequent to such possession. (b) if tide to (t) twenty percent (20%) or more of the GLA of Landlord's Building or (r) twenty percent (20%) or more of the parking required to be maintained in the Shopping Center is so taken, and if Landlord within one (1) year after such taking has not substituted an equivalent number of parking spaces in a location reasonably accessible to the Shopping Center, then either party may terminate this Lease by notice to the other given within thirty (30) days after the taking or after the expiration of such one (1) year period, as the case may be. 24.4 OWNERSHIP OF AWARD. All damages for any condemnation of all or any part of the Shopping Center, including, but not limited to, all damages as compensation for diminution in value of the leasehold, reversion and fee, shall belong to the Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all its right, tide and interest to any such award. Although all damages in the event of any condemnation are to belong to the Landlord, Tenant may have the right to claim and recover from the condemning authority, but not from Landlord, such compensation as may be separately awarded or recoverable by Tenant in Tenants own right on account of any and all damage to Tenants business by 20 02/27/0702 427 iQ980 e2Q e3f96 lax L&gAl YI 1/]5/ 7 RI?(;ENC.V INITIAL CENTERS reason of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's merchandise, furniture, fixtures, leasehold improvements and equipment. 24.5 CONFLICTS. If there is a conflict between the provisions of this Article 24 and Article 13, the provisions of Article 24 shall govem. ARTICLE 25. MISCELLANEOUS 25.1 INTERPRETATION. (a) The captions appearing in this Lease are inserted only as a matter of convenience and in no way amplify, define, limit, construe or describe the scope or intent of such sections of the Lease. The neuter, feminine or masculine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural. (b) The printed provisions of this Lease were drawn together by Tenant and Landlord, so that 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. (c) Notwithstanding any other provision of this Lease, if the state in which the Premises is located recognizes a distinction between an estate for years and a `usufruct,' it is the intention of the parties for this instrument to create a usufruct and not an estate for years. 25.2 RELATIONSHIP OF PARTIES. Nothing herein contained shall be construed as creating any relationship between the parties other than the relationship of Landlord and Tenant, nor cause either party to be responsible in any way for the acts, debts or obligations of the other. 25.3 NOTICES. (a) Any notice, demand, request, approval, consent or other instrument which may be or is required to be given under this Lease shall be in writing and shall be deemed to have been given when delivered to the party to be notified or when mailed by United States certified mail, return receipt requested, postage prepaid, or when delivered by a courier such as Federal Express, addressed to the party to be notified at the address of such party set forth in Section 1.1(t), or to such other address as such party may from time to time designate by notice to the other in accordance with this Section. (b) No notice required to be given to Landlord shall be effective for any purpose unless and until a true copy thereof is given to each mortgagee of Landlord's estate, provided Tenant has previously been given written notice of the name and address of such mortgagee. (c) Notices required hereunder may be given by an attorney acting on behalf of Landlord or Tenant. 25.4 SUCCESSORS. This Lease shall inure to the benefit of and be binding upon Landlord, its successors and assigns, and shall be binding upon Tenant, its successors and assigns, and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has been made and consented to in accordance with the provisions of this Lease. 25.5 BROKER'S COMMISSION. Landlord has entered into an agreement with the real estate broker specified in Section 1.1(n) of the Lease as representing Landlord ("Landlord's Broker'), and Landlord shall pay any commissions or fees that are payable to Landlord's Broker with respect to this Lease in accordance with the provisions of a separate commission contract Landlord shall have no further or separate obligation for payment of commissions or fees to any other real estate broker, finder or intermediary. Tenant represents that it has not had any dealings with any real estate broker, finder or intermediary with respect to this Lease, other than Landlord's Broker and the broker specified in Section 1.1(n) of the Lease as representing Tenant ("Tenant's Broker"). Any commissions or fees payable to Tenant's Broker with respect to this Lease shall be paid exclusively by Landlord's Broker. Each party represents and warrants to the other, that, to its knowledge no other broker, agent or finder (a) negotiated or was instrumental in negotiating or consummating this Lease on its behalf, or/and (b) is or might be entitled to a commission or compensation in connection with this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to disclose herein shall be paid by Tenant. 25.6 UNAVOIDABLE DELAYS. In the event that either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure labor or materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or other casualty or other reason of a similar or dissimilar nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall 02127/07G2 Jaz Legal 2509 V I I/I.W R P?jEN(- ,• INITIAL HERS CFNTF: R,c L be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section shall not operate to excuse Tenant from prompt payment of Rent or any other payments required by the terms of this Lease and shall not extend the Tenn. Delays or failures to perform resulting from lack of funds shall not be deemed delays beyond the reasonable control of a party. 25.7 ENTIRE AGREEMENT. There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, arrangements, letters of intent, lease proposals, brochures, agreements, representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof. This Lease, including the Exhibits and any addenda, sets forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and the Shopping Center. No alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced in writing, signed and mutually delivered between them. 25.8 APPLICABLE LAW. The laws of the state in which the Premises are boated shall govem the validity, performance and enforcement of this Lease. 25.9 WAIVER. Failure of either party to insist upon the strict performance of any provision of this Lease or to exercise any option or enforce any rules and regulations shall not be construed as a waiver in the future of any such provision, rule or option. 25.10 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated Rent, nor shall any endorsement or statement on any check or any letter accompanying any such check or payment as Rent be deemed an accord and satisfaction, and Landlord 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 for in this Lease or available at law or in equity. 25.11 LANDLORD'S SELF-HELP. In addition to Landlord's rights of self-help set forth elsewhere in this Lease, if Tenant at any time fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but not the obligation, upon giving Tenant at least ten (10) days' prior written notice of its election to do so (in the event of an emergency, no prior notice shall be required), to perform such obligations on behalf of and for the account of Tenant and to take all such action neoessary to perform such obligations without liability to Tenant for any lose or damage which may result to Tenant's stock or business by reason of such repairs. In such event, Landlord's costs and expenses incurred therein shall be paid for by Tenant as Additional Rent, forthwith upon demand therefor, with interest thereon from the date Landlord performs such work at the Default Rate. The performance by Landlord of any such obligation shall not constitute a release or waiver of Tenant therefrom. 25.12 RECORDING. Tenant agrees that it will not record the Lease, nor a short memorandum thereof. 25.13 JOINT AND SEVERAL LIABILITY. If two or more individuals, corporations, partnerships or other business associations (or any combination of two or more thereof) shall sign this Lease as Tenant, the liability of each of them shall be joint and several. In like manner, If the Tenant named in this Lease shall be a partnership or other business association, the members of which are, by virtue of statute or general law, subject to personal liability, the liability of each such member shall be joint and several. 25.14 EXECUTION OF LEASE. The submission of this Lease for examination does not constitute a reservation of or option for the Premises or any other space within the Shopping Center and shall vast no right in either party. This Lease shall become effective as a Lease only upon execution and legal delivery thereof by the parties, together with the execution and delivery to Landlord of a Guaranty in the form annexed hereto by the Guarantor(s), ff any, named in Section 1.1(k) and the delivery by Tenant to Landlord of any documents and monies (If any) required to be delivered by Tenant to Landlord upon Tenant's execution and delivery of this Lease to Landlord. This Lease may be executed in more than one counterpart, and each such counterpart shall be deemed to be an original document. 25.15 WAIVER OF JURY TRIAL. Tenant hereby waives trial by jury in any action, proceeding, or permissive counterclaim involving any matters whatsoever arising out of or In any way connected with the Lease, the relationship of Landlord and Tenant, Tenants use or occupancy of the Premises, or claim for injury or damage. 25.16 TIME OF THE ESSENCE. Time is of the essence of each and every obligation under this Lease. 22 02 27/07 Jax IxgaL2509 vl 1/ISM RPGEN Cn, INITIAL ` HBRS CENTERS 25.17 TENANT'S AUTHORITY. If Tenant executes this Lease as a limited liability company, partnership, or corporation, then Tenant and the persons and/or entities executing this Lease on behalf of Tenant represent and warrant that (a) Tenant is a duly organized, authorized and validly existing partnership, corporation or limited liability company, as the case may be, and is qualified to do business in the state in which the Premises is located; (b) such persons and/or entities executing this Lease are duly authorized to execute and deliver this Lease on Tenant's behalf in accordance with the Tenants operating agreement (If Tenant is a limited liability company), Tenant's partnership agreement (if Tenant is a partnership), or a duly adopted resolution of Tenant's board of directors and the Tenant's by-laws (I Tenant is a corporation), and (c) this Lease is binding upon Tenant in accordance with its terms. Concurrently with Tenant's execution and delivery of this Lease to Landlord and/or at any time during the Term within ten (10) days of Landlord's request, Tenant shaft provide to Landlord a copy of any documents reasonably requested by Landlord evidencing such qualification, organization, existence and authorization. 25.18 ANTI-TERRORISM AND MONEY LAUNDERING REPRESENTATION AND INDEMNIFICATION. Tenant certifies that (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury Department as a terrorist, 'Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ('SDN7; (G) neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its officers, directors or controlling owners is in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Tenant hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorneys fees and costs) arising from or related to any breach of the foregoing certification. Should Tenant, during the term of this Lease, be designated an SDN, Landlord may, at its sole option, terminate this Lease. 26.1 CONDITIONS ON LANDLORD'S RIGHT TO RELOCATE PREMISES. Landlord shall have the right at any time to require Tenant to surrender the Premises and accept substitute premises (the 'New Premises') in the Shopping Center provided the following conditions are met 1. The New Premises shall be comparable in size, configuration, utility and location to the Premises. 2. Landlord will, at Landlord's sole cost and expense, prepare the New Premises to as nearly the same condition as the Premises as is practical under the circumstances including using Tenant's existing trade fixtures- and Tenants fit out including additional upgrades if an . 3. Landlord will pay all reasonable moving, telephone installation and stationery reprinting costs actually paid for by Tenant in connection with such relocation. 4. Landlord will give Tenant not less than thirty (30) days' notice of Landlord's intention to exercise its rights under this Article. Tenant agrees to cooperate with Landlord in Finding the New Premises which are reasonably acceptable to Tenant and in planning improvements, If any, required to the New Premises. 26.2 LANDLORD AND TENANT'S RIGHT TO TERMINATE. If landlord meets the criteria set forth in Section 26.1 hereof and is unable to provide New Premises which are reasonably acceptable to Tenant, then Landlord or Tenant shall have the right to terminate this Lease by providing ninety (90) days' written notice to the other party. If, during the Term, Tenant or any person, firm or corporation who or which controls or is controlled by Tenant shall directly or indirectly, either individually or as a partner or stockholder or otherwise, owns, operates or becomes financially interested in any business similar to or competing with the business for which Tenant is authorized to use the Premises as provided in Section 1.1 within a radius of three (3) miles from the outside boundary of the Shopping Center as presently constituted, the 'Gross Sales' (as defined in this Lease) of any such business or businesses within said radius shall, without limiting Landlord's other remedies under this Lease including holding Tenant in default, be included in the Gross Sales made from the Premises for all purposes of this Lease and the Percentage Rent hereunder shall be computed upon the aggregate of the Gross Sales made from the Premises and by any such other business or businesses then conducted within said radius. This Article shall not apply to any such business or businesses which is owned by Tenant and is open and in operation within said radius prior to 23 02 27 07 J0X LXn1 2509 vl 1/15M INITIAL R rcEivc., CF-NTRRc ? the date of this Lease. Landlord will not lease in the future to any tenant in the Landlord's Building for the purpose of conducting within the Landlord's Building as its principal business the sale of: Tanning services, with the exception of a full service salon or spa exceeding 5,000 square feet which may have tanning services limited to two (2) beds. It is understood that this exclusive shall not apply to any existing tenants. It is further understood that other tenants or occupants in the Landlord's Building may sell one or more of the restricted items as an incidental part of their business, and permission heretofore or hereafter granted by the Landlord to conduct such incidental sales shall not be deemed to violate this covenant. it is further understood that aho-d-ld T-aRaPA tab! to Feesh its pemeMago FeFA Weak poiF4 in any Waive (42) Fnenth pe0ed afk@F the Wel teaseYeaFer =should Tenant become in default under any provision of the Lease, then this exclusive shall Immediately terminate and be of no further force or effect. This exclusive shall terminate should this Lease be assigned and, as a result of such assignment, the use of the Premises is changed from the primary use set forth in Section 1.10) of the Lease or N the use of the Premises is otherwise changed from the primary use set forth in Section 1.1 (j) of this Lease. Landlord reserves the right to lease (or consent to the use of) any space in the Landlord's Building without imposing any restriction on the use of such space to any tenant whose principal business at the time the lease is made (or consent is given) is that of department store, junior department store, variety store, grocery store, drug store, or to any tenant initially occupying more than 20,000 square feet of GLA, it being understood that Landlord shall not be obligated to restrict the use of any of such space in any manner whatsoever. ARTICLE 29. OPTION TO EXTEND Tenant shall have the option, exercisable by written notice to Landlord, by certified mail, return receipt requested, given not later than six (6) months prior to the expiration of the initial Term, to extend the Lease for one further term of sixty (60) months on the same terms and conditions as provided in this Lease, except that: (a) Landlord shall have no obligation to make any improvements to the Premises; and (b) Minimum Annual Rent for the first extended term shall be as set forth below: Months $ Per Square Foot Per Annum 1-12 $38.25 13 - 24 $39.40 25 - 36 $40.58 37 - 48 $41.80 49 - 60 $43.06 and (c) there shall be no option to further extend the term. Notwithstanding the foregoing, this Option to Extend this Lease shall be deemed null and void N one or more of the following has occurred: 1. Tenant has been late in the payment of rent on three (3) or more occasions within any twelve (12) month period. For this purpose, a payment shall be deemed to be late N it is received by Landlord after the second day of the month in which such rent is due. 2. Tenant has been late on three (3) or more occasions within any twelve (12) month period in furnishing to Landlord the monthly sales reports required by Article 4. For this purpose, a report shall be deemed to be late it N is received by the Landlord on or after the 21 st day of the month. 3. Tenant is in default in the performance of any of its obligations under the Lease. 4. Tenant has failed to give written notice by certified mail, return receipt requested, to Landlord six (6) months prior to the expiration of the initial term. 24 02/27/0792j27'093¢96 Jax Legal 2509vl 1/15/177 R NT FR" INITI ? CFNTRRC The Lease has ever been assigned. ARTICLE 30. LIMIT ON COMMON AREA COSTS FOR DEVELOPMENT Notwithstanding the provisions of Article 8 of the Lease, Landlord agrees that Tenant will not be required to pay its Proportionate Share of Controllable Common Area Costs after the Second Lease Year which exceeds $2.50 per square foot per annum, increased by 7% for each calendar year for the initial term which has elapsed since the First Lease Year following the Commencement Date. Controllable Common Area Costs are all of those Common Area Costs described in Section 8.5, except for the costs of utilities fumished to the Common Areas, security, snow removal costs and the costs of any services provided by governmental authorities or agencies or any expenses relating to government taxation. r;1:i 11a• 1!.1 ? III K610 EXCEPT AS PROVIDED IN ARTICLE 31: TO SECURE THE PAYMENT OF ALL RENTAL AND OTHER SUMS OF MONEY DUE OR TO BECOME DUE HEREUNDER AND THE FAITHFUL PERFORMANCE OF THIS LEASE BY TENANT, TENANT HEREBY GRANTS TO LANDLORD AN EXPRESS FIRST AND PRIOR CONTRACTUAL LIEN AND SECURITY INTEREST ON ALL PROPERTY (INCLUDING, BUT NOT LIMITED TO, FURNITURE, FIXTURES, EQUIPMENT, INVENTORY, CHATTELS AND MERCHANDISE AND ALL ACCESSORIES THERETO AND ALL PROCEEDS THEREOF) WHICH MAY BE PLACED ON THE PREMISES, AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE WHICH MAY ACCRUE TO TENANT BY REASON OF DESTRUCTION OF OR DAMAGE TO ANY SUCH PROPERTY. SUCH PROPERTY SHALL NOT BE REMOVED FROM THE PREMISES WITHOUT THE WRITTEN CONSENT OF LANDLORD UNTIL ALL ARREARAGES IN RENTAL AND OTHER SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER SHALL FIRST HAVE BEEN PAID. ALL EXEMPTION LAWS ARE HEREBY WAIVED IN FAVOR OF SAID LIEN AND SECURITY INTEREST. THIS LIEN AND SECURITY INTEREST IS GIVEN IN ADDITION TO LANDLORD'S STATUTORY LIEN AND SHALL BE CUMULATIVE THERETO. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, THIS LIEN MAY BE FORECLOSED WITH OR WITHOUT COURT PROCEEDINGS, BY PUBLIC OR PRIVATE SALE, PROVIDED LANDLORD GIVES TENANT AT LEAST TEN (10) DAYS NOTICE OF THE TIME AND PLACE OF SAID SALE, AND LANDLORD SHALL HAVE THE RIGHT TO BECOME THE PURCHASER UPON BEING THE HIGHEST BIDDER AT SUCH SALE. CONTEMPORANEOUSLY WITH THE EXECUTION OF THIS LEASE (AND IF REQUESTED HEREINAFTER BY LANDLORD), TENANT SHALL EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM SO THAT, WHEN PROPERLY FILED, THE SECURITY INTEREST HEREBY GRANTED SHALL THEREUPON BE PERFECTED. IF REQUESTED HEREAFTER BY LANDLORD, TENANT SHALL ALSO EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM TO REFLECT ANY AMENDMENT OR MODIFICATION IN OR EXTENSION OF THE AFORESAID CONTRACTUAL LIEN AND SECURITY INTEREST HEREBY GRANTED. TENANT HEREBY GRANTS TO LANDLORD TENANT'S POWER-OF-ATTORNEY TO EXECUTE SAID FINANCING STATEMENTS IN TENANTS NAME, PLACE AND STEAD. SAID POWER IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE LANDLORD SHALL, IN ADDITION TO ALL OF LANDLORD'S RIGHTS HEREUNDER, HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE AS ADOPTED IN THE STATE IN WHICH THE PREMISES ARE LOCATED. A COPY OF THIS LEASE MAY BE FILED AS A NON-STANDARD FINANCING STATEMENT. ARTICLE 33. AUDIT RIGHT PROVNWN Subject to the limitations and restrictions below, Tenant shall have the right, at its sole cost and expense, upon at least thirty (30) days prior written notice, to audit Landlord's books and records pertaining to Landlord's common area costs and expenses for the immediately preceding calendar year. Tenant's right of audit is further subject and conditioned upon the following: 25 oz 27/0 laz Legal 2509 vt 1/1,%W R FC,ENC 4 INITIAL CENTER c xs,:a ARTICLE 31. LANDLORD'S SUBORDINATION OF LIEN (a) Tenant must utilize its own qualified employees or employ a nationally recognized accounting firm or other qualified accountant or professional to conduct the audit and may not have a contingent fee arrangement with the person or firm engaged to perform the audit; (b) Tenant must elect to conduct its audit within six (6) months following Tenants receipt of Landlord's annual statement of common area costs and expenses (tut no more than once in any calendar year), time being deemed of the essence (failing which the annual statement shall be deemed to be correct); (c) The audit shall be conducted at Landlord's designated offices; (d) Tenant and its auditors shall be required to execute a confidentiality letter in form reasonably satisfactory to Landlord and Tenant, the effect of which will require Tenant and its auditors to refrain from divulging the contents and results of the audit to any third person, except and to the extent that disclosure is required to potential lenders, partners, assignees or purchasers of Tenant, governmental agencies or in the event of litigation, subpoena or governmental compliance; and (e) If the Tenant shaA have had an audit made for any calendar year, then Tenant shall provide Landlord with a copy of the audit report. In the event that any such audit reveals that Tenant has overpaid its pro rata share of said common area costs and expenses for such calendar year, then as Tenant's sole remedy, there shall be a prompt adjustment between Landlord and Tenant as provided in this Section and Landlord shall reimburse Tenant the amount of the overpayment. In the event Tenant has overpaid in excess of five percent (5%) in any calendar year, then Landlord shall pay to Tenant the reasonable cost of such audit. ARTICLE 34. TENANT'S FINANCIAL STATEMENTS Upon ten (10) days prior written request from Landlord (which Landlord may make at any time during the Term but no more often than two (2) times in any calendar year), Tenant shall deliver to Landlord (a) a current financial statement of Tenant and any Guarantor of this Lease (if any), and (b) financial statements of Tenant and any such Guarantor for the two (2) years prior to the current financial statement year. Such statements shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer of Tenant (if Tenant is a corporation or limited liability company) or a general partner of Tenant (if Tenant is a partnership). 26 02 27 07 !aX Leea12509 vl 1115/07 INITI7II, R NT CENTFFIR k .R IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year first above written. fitness Witness A AAA W' Witness LANDLORD: SILVER SPRING SQUARE II, LP a Delaware Limited Partnership, By: Regency Realty Group, Inc., a Florida Coq"libQ Its: General r By M-Mm Its: ` TENANT: HOLLYWOOD TANNING SYSTEMS, INC., a New Jersey corporation RALPH VENUTO JR. By: PsESID Its: Attest: Its: Tax I.D.#: Execution: Corporate: This Lease must be executed for Tenant, if a corporation, by the president or vice president and attested by the secretary or assistant secretary, unless the bylaws or a resolution of the Board of Directors shall otherwise provide, in which evert, a certified copy of the bylaws or resolution, as the case may be, must be furnished. Also, the corporate seal of Tenant, If Tenant has such a seal, must be affixed. indMdual: This Lease must be executed by each individual whose name appears under the signature lines. Their execution must be witnessed by two (2) disinterested persons who must sign as witnesses in the space provided. 27 02/27/07^^'^"^ JazLera13509v11/l5/07 INITIAL R rC,ENCV HERB CF..NTP,RS EXHIBIT A SILVER SPRING SQUARE LEGAL DESCRIPTION KRETTZER / SPEEDWAY TRACT PREMSES "A" ALL THAT CERTAIN piece or parcel of land, hereditaments and appurtenances, situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point in the center line of Market Place, said point being North 5 degrees 27 minutes East 364.48 feet from the Northern right-of-way line of U.S. Route No. 11 (the Carlisle Pike); thence along the center line of Market Place, North 5 degrees 27 minutes East 319 plus or minus feet to a point; thence along land now or formerly of Donald Carter, South 89 degrees 0 minutes West 495.34 feet to a point; thence along land of Silva Spring Theaters, Inc., North 1 degree 0 minutes West 71 feet to a point; thence along the same, North 89 degrees 21 minutes West 789.10 feet to a point; thence along land of Pennsylvania Supply Company, North 12 degrees 15 minutes West 686 plus or minus feet to a point; thence along land now or formerly of Snyder, North 79 degrees 15 minutes East 1,574 plus or minus feet to a point; thence along land now or formerly of Harry E. Horton, South 67 degrees 45 minutes East 230 feet to a point; thence along the same North 78 degrees 45 minutes East 143 feet to a point; thence along land now or fornerly of Franklin Shaeffer, South 43 degrees 30 minutes East 767.25 feet to a point in the Lambs Gap Road; thence along the same South 12 degrees 0 minutes East 50 plus or minus feet to a point; thence along land now or formerly of Percy S. Williams, South 85 degrees 0 minutes West 240.50 feet to a point; thence along the same, South 6 degrees 48 minutes East 150.07 feet to a point; thence along the same, North 85 degrees 0 minutes East 195 plus or minus feet to a point on the Westerly dedicated right-of-way line of Lamb Gap Road; thence along the same, South 11 degrees 15 minutes 45 seconds East 82 plus or minus fat to a point; thence along the same Southwardly by a curve to the left having a radius of 2,332.01 feet, an arc length of 50.54 feet to an iron pin at the Northeastern comer of Lot No. 4 on that certain Plan of Lots of Silver Spring Businesses, Inc., dated November 18, 1988, prepared by Whittock & Hartman Engineers & Surveyors, and recorded in Cumberland County Plan Book 57, Page 8; thence along the Northern line of the aforesaid Lot No. 4, South 77 degrees 29 minutes 45 seconds West 156.25 feet to a point; thence along the same, North 6 degrees 2 minutes 30 seconds West 72.38 feet to a point; thence along the same, South 83 degrees 57 minutes 30 seconds West 125 feet to a point; thence along the Western boundary of the aforesaid Lot No. 4, South 4 degrees 2 minutes 30 seconds East 195 feet to a point; thence along the same and along the Western boundary of Lot No. 3 on the aforesaid Plan of Silver Spring Businesses, Inc., dated November 18, 1988, and recorded as aforesaid, South 22 degrees 25 minutes East 126.20 feet to a point on the Northern line of lands of Silver Spring Mobile Hone Park; thence along the same, South 73 degrees 46 minutes West 403.96 feet to a point; thence along the same, South 18 degrees 26 minutes East 110 feet to a point; thence along the same, South 85 degrees 9 minutes West 374 feet to a point in the center line of Market Place, the place of BEGINNING. CONTAINING approximately 53 plus or minus acres. BEING the same premises which Silver Springs Businesses, Inc. a Pennsylvania Corporation, by Indenture dated December 21, 1988 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Plan Book S33 page 769 &c., granted and conveyed unto Silver Spring Speedway, Inc., a Pennsylvania Corporation, in fee. BEING Parcel No. 38-07-0457-00-8. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "B" ALL THAT CERTAIN piece or parcel of land, hereditaments and appurtenances, Situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: REGENCY t CFNTFRS BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern comer of lands of Robert Yentzer; thence along the Northern line of lands of Robert Yentux, South 66 degrees 58 minutes 30 seconds West 68.78 feet to a point on the Northeast comer of lands of Silver Spring Mobile Home Park; thence along the Northern line of lands of Silver Spring Mobile Home Park, South 80 degrees 40 minutes 30 seconds West 185 feet to a point; thence along the same, North 22 degrees 25 minutes West 116.86 feet to a point; thence along the same, South 73 degrees 46 minutes West 32.10 feet to a point at the Southeastem corner of other lands of Silver Springs Businesses, Inc.; thence along the same, North 22 degrees 25 minutes West 29.11 feet to a point at the Southwestern comer of Lot No. 4 on the hereinafter mentioned Plan of Lots; thence along the Southern line of Lot No. 4, North 63 degrees 56 minutes East 296.36 feet to a point on the Western right-of-way line of Lambs Gap Road; thence along Western right-of--way line of Iambs Gap Road Southwardly on a curve to the left having a radius of 2,332.01 feet, an arc length of 210.07 feet to a point, the place of BEGINNING. CONTAINING 1.12 acres, more or less. BEING Lot No. 3 on that certain Plan of Lots of Silver Springs Businesses, Inc., dated November 18, 1988, prepared by Whittock & Hartman Engineers & Surveyors, recorded in Cumberland County Plan Book 57, Page 8. BEING part of the same premises which Silver Springs Businesses, Inc. (a Pennsylvania Corporation), by Indenture bearing date the 21st day of December A.D. 1988 and recorded in the Office of the Recorder of Deeds in and for the County of Cumberland, aforesaid, in Deed Book S-33 page 774 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING 38-07-0457-013. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "C" ALL THAT CERTAIN piece or parcel of land, hereditaments and appurtenances, Situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern corner of Lot no. 3 on the hereinafter mentioned Plan of Lots; thence along the Northern line of Lot No. 3, South 63 degrees 56 minutes West 296.36 feet to a point on the Eastern lire of other lands of Silver Springs Businesses, Inc.; thence along the same, North 22 degrees 25 minutes West 97.09 feet to a point; thence along the same, North 4 degrees 2 minutes 30 seconds West 195 feet to a point; thence along the same, North 83 degrees 57 minutes 30 seconds East 125 feet to a point; thence along the same, South 6 degrees 2 minutes 30 seconds East 72.38 feet to a point; thence along the same North 77 degrees 29 minutes 45 seconds East 156.25 feet to a point on the Western right-of-way line of Iambs Gap Road; thence along the Western right-of-way line of Lambs Gap Road, Southwardly on a curve to the left having a radius of 2,332.01 feet, an arc length of 133.10 feet to a point, the place of BEGINNING. CONTAINING 1.37 acres, more or less. BEING Lot No. 4 on that certain Plan of Lots of Silver Springs Businesses, Inc., dated November 18, 1988, prepared by Whittock & Hartman Engineers & Surveyors, and recorded in Cumberland County Plan Book 57, Page 8. BEING part of the same premises which Silver Springs Businesses, Inc. (a Pennsylvania Corporation), by Indenture bearing date the 21 st day of December A.D. 1988 and recorded in the Office of the Recorder of Deeds in and for the County of Cumberland, aforesaid, in Deed Book S-33 page 774 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING 38-07-0457-014. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE REGENCY 2 CENTERS PREMLSES "D" ALL THAT CERTAIN tract or parcel of land, Hereditaments and Appurtenances, Situate in Silver Spring Township, Cumberland County, Pennsylvania, more particularly described as follows, to wit: BEGINNING at a point on the North side of the Carlisle Pike, said point being in the center line of Market Place; thence along the center line of Market Place, North 5 degrees 27 minutes East, 364.48 feet to a point; thence along Lot No. 1, North 85 degrees 9 minutes East, 374 feet to a point; thence along same, North 18 degrees 26 minutes West, 110 feet to a point; thence along same, North 73 degrees 46 minutes East, 436.06 feet to a point; thence along same, South 22 degrees 25 minutes East, 116.86 feet to a point; thence along same, North 80 degrees 40 minutes 30 seconds East, 185 feet to a point; thence along land of Robert Yentzer, South 24 degrees 38 minutes East, 200.68 feet to a point; thence along same, South 17 degrees 33 minutes West, 186.70 feet to a point; thence along same, South 12 degrees 31 minutes 35 seconds West, a distance of 137.26 feet to a point on the North side of Carlisle Pike; thence along same, South 89 degrees 0 minutes West, 32.21 feet to a point; thence along land of Wilbert E. Kreitzer, Jr., North 8 degrees 27 minutes West, 126.07 feet to a point; thence along same and land of Margaret Garver, South 89 degrees West 263.63 feet to a point; thence along land of Margaret Garver, South 1 degree East, 155 feet to a point on the North side of Carlisle Pike; thence along same, South 89 degrees West, 704.42 feet to a point, the place of beginming. CONTAINING approximately 10.43 acres. BEING Lot No. 2 on the Final Subdivision Plan for Ray Garver, Inc., recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 37 page 86. BEING the same premises which Jean Moyer and Robert A. Moyer, by Indenture dated March 13, 1989 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book V-33 page 614 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING Parcel #38-18-1325-001. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "E" ALL THAT CERTAIN piece or parcel of land, Hereditaments and Appurtenances, Situate in Silver Springs Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at an iron stake on the Northerly side of U.S. Route #11, commonly known as the Carlisle Pike, said iron stake being 643 feet Westwardly of the intersection of the Northerly side of U.S. Route #11 and the center line of Legislative Route #21051; thence along the Northerly side of U.S. Route #11 North 82 degrees 15 minutes West 127 feet to an iron pin; thence along other land now or late of Ray Garver, Inc. North 7 degrees 45 minutes East 180 feet to an iron pin; thence along other land now or late of Ray Garver, Inc. South 82 degrees 15 minutes ast 127 feet to an iron pin; thence along other land now or late of Ray Garver, Inc. South 7 degrees 45 minutes West 180 feet to an iron stake, the place of beginning. KNOWN AND NUMBERED as 6408 Carlisle Pike, Mechanicsburg. BEING the same premises which Margaret E. Garver, widow, by Indenture dated September 21, 2001 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book Volume 248 page 4360 &c., granted and conveyed unto Alan G. Kreitzer, in fee. RFGFN( 3 UNDER AND SUBJECT to valid building, zoning, deed and plan restrictions, right of the public and others in the roads, streets and alleyways adjoining the described premises and easement of record and apparent. BEING Parcel #38-18-1325-002. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "F" ALL THAT CERTAIN lot or piece of ground with the buildings and improvements thereon erected, Hereditaments and Appurtenances, SITUATE in Silver Spring Township, County of Cumberland and State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at an iron stake on the Northerly side of U.S. Route No. 11, commonly known as the Carlisle Pike, said iron stake being a distance of 480 feet Westwardly of the intersection of the Northerly side of U.S. Route No. 11 and the center line of Legislative Route No. 21051; thence along the Northern side of U.S. Route No. 11 North 82 degrees 15 minutes West, a distance of 163 feet to an iron pin; thence along land now or formerly of Margaret E. Garver North 7 degrees 45 minutes East, a distance of 180 feet to an iron pin; thence along lands now or formerly of Ray Garver, Inc., South 82 degrees 15 minutes East a distance of 136.63 feet to an iron pin; thence South 0 degrees 25 minutes West a distance of 181.92 feet to an iron stake, the point and place of beginning. HAVING thereon erected a ranch-type dwelling house known and numbered as 6406 Carlisle Pike. BEING the same premises inter alia which Alan G. Kreitzer and Sherry E. Kreitzer, husband and wife, by Indenture dated September 12, 2003 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book 259 page 1475 &c., granted and conveyed unto Alan G. Kreitzer, in fee. UNDER AND SUBJECT to valid building, zoning, deed and plan restrictions, right of the public and others in the roads, streets and alleyways adjoining the described premises and easements of record and apparent. BEING Parcel #38-18-1325-003. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES "G" ALL THAT CERTAIN piece, parcel or tract of land, Hereditaments and Appurtenances, Situate in Silver Spring Township, Cumberland county, Pennsylvania, bounded and described as follows, to wit: BEGINNING at an iron pin, said pin being the Northeast corner of the Garver Tract No. 1; thence South 43 degrees 30 minutes East 150 feet, more or less, to a point near the bank of a dam; thence South 78 degrees 45 minutes West along a new wire fence 143 feet, more or less, to a post on an old fence line; thence along an old fence line North 67 degrees 45 minutes West 230 feet to a post on the boundary line between the Garver Tract No. 1 and the Charles Weary Estate land; thence along the Weary Estate North 79 degrees 15 minutes East 251 feet, more or less, to an iron pin, place of BEGINNING. GRANTING AND CONVEYING to the Grantee, his heirs and assigns, a right-of-way over the abandoned Township road on the South side of the Silver Spring stream. BEING the same premises inter alia which Alan G. Kreitzer and Sherry E. Kreitzer, husband and wife, by Indenture dated September 12, 2003 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book 259 page 1475 &c., granted and conveyed unto Alan G. Kreitzer, in fee. BEING Parcel No. 38-18-1325-005. 4 REGENCY EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE CARTER TRACT PREMISES A ALL THAT CERTAIN lot of land, herediUments and appurtenances, Situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania bounded and described as follows: BEGINNING at a point on the Northerly right-of-way line of State Highway U.S. Route 11, the Carlisle Rice, at the Easterly line of land of Silver Spring Theaters, Inc.; thence North 1 degree West along said land of Silver Spring Theaters, Inc., 200 feet to an iron pin at the Southerly line of land now or late of Donald L. Carter; thence along said Carter land North 89 degrees East 441.19 feet to a PK nail on the Westerly line of lands now or late of Ray Garver, Inc.; thence South 5 degrees 27 minutes West slang said Garver lands 201.27 feet to a point marked by a PK nail on the Northerly right-of-way line of Carlisle Pike; thence by the latter line South 89 degrees West 418.58 feet to the iron pin at the place of BEGINNING. CONTAINING 1.97 acres and being lot number 2 on the final subdivision plan for Stanley Armitage approved by Supervisors of Silver Spring Township on September 29, 1976, duly recorded in the Cumberland County Recorders Office, subject to a right-of-way along the Eastern boundary thereof 30 feet in width for the common use of the parties entitled by prim recorded conveyances and of the public as indicated on said Plan. BEING the same premises which West Shore Public Library Association, a Pennsylvania non-profit corporation, by Indenture dated June 22, 1981 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Deed Book L29 page 627 &c., granted and conveyed unto Donald L. Carter and Marian E. Carter, husband and wife, in fee. BEING Parcel #38-19-1608-004. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE PREMISES B ALL THAT CERTAIN lot of ground, Hereditaments and Appurtenances, Situate in Silver Spring Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at a point on the Easterly line of land now or formerly of Silver Spring Theaters, Inc., said point being located 200 feet measured Northwardly along said line from an iron pin at the Northern right-of-way line of the State Highway, U.S.Route 11, the Carlisle Pike; thence North 01 degree West along said land of Silver Spring Theaters, Inc., 479 feet to an iron pin on the Southerly line of land of Ray Garver, Inc.; thence by the latter land, North 89 degrees East 495.34 feet to a railroad spnilm; thence by other land of Ray Garver, Inc., South 05 degrees 27 minutes West 481 feet, more or less, to a Northwardly from the said Carlisle Pike, and along other property of Stanley N. Armitage, 445 feet, more or less to the place of Beginning. BEING the same premises which Commonwealth National Bank, Executor of the Will of Stanley N. Armitage, by Indenture dated May 6, 1997 and recorded in the Recorder of Deeds, in and for the County of Cumberland, aforesaid, in Miscellaneous Book D27 page 781 &c., granted and conveyed unto Donald L. Carter, in fee. TOGETHER with and subject to the right to use the private road along the East part of the premises described in the deed above referred t as set forthin agreement dated Februay 8, 1954, recorded in Miscellaneous Book 106, page 85. BEING Parcel #38-19-1608-004A. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE REGENCY 5 CFNTFR C EXHIBIT B PART 1 - SITE PLAN OF SHOPPING CENTER LAND ? ?s ? ! ? III {tl ? ?? ar 1 i` ?1??r j' ?e ? i? T•? ? e ? : liils!fly?? ? ? ? >,??? Ill ?EIPI ?? ?IIP?11 tI I ltat? !t'•t: II.I..?I, ?-- tt 1 a SQ-' ¢ 1f 1 k ? I ?? 111 1 ` ? 1 1 ? 0227 07 lax Len1 2509 0 1/15/07 REGENCY CFNTP s 9 I I I I o 1 ! I I I I I? INITXAL EMIBR B PART 2 - LEASING PLAN r?-I O I ? ca °O m Q O 0,1 J ? N L r-1 (L 3 +?+ d to o s 0: rn c C? o L L a? Cn Ln > H U cn . c ..i 1 m ?d o= -? a N C 3 c 0 Z sl ?$t it C g 0 ro if to 02 27 07 ).z Lrp212509 vi 1/15/07 RrCENCV CENTF.F c INITIAL HE= V DES QIPTION OF TENMT'S WORK AND WORK TO BE PERFORMED BY LANDLORD A. Procedure for the P ratpproval of Working Drawings and Specifications. Tenant shall, within ys ate of execution of this Lease, deliver to the Landlord for its review and approval two (2) sets of drawings and specifications for the Tenants proposed improvements to the Premises. One set will be returned to the Tenant and one set will be retained by the Landlord. Such drawings shall consist of at least a site plan (if aitework changes to utilities, paving, landscaping, mechanical, electrical, or plumbing systems etc. are proposed), a floor plan, and exterior building elevations (if any modifications are proposed to the storefront or exterior walls) done at a reasonable scale, which will convey detail and intent, as well as an indication of color selection and graphics. Storefront elevations shall include specification of materials and color scheme. The following conditions, as applicable, are to be clearly detailed on the drawings: New roof penetrations, including plumbing penetrations for vent stacks, or any modifications to the roof system New equipment (satellite dishes, HVAC, etc.) installed on the roof Underground utility changes and pavement demolitiontreplacement Modifications to exterior walls to include new doors, windows, finishes, etc. Anything to be mounted on the exterior walls Changes to electrical, water, or gas service Changes to the concrete floor slab Grease trap location If Landlord does not, within fourteen (14) days after receipt of the Tenant's preliminary plans, indicate its disapproval, the same shall be deemed approved. However, Landlord shall not be responsible for items noted or inferred to be furnished and installed b Landlord unless it Is specifically rioted in paragraph B or Exhibit C-2 ' ) #-/V 0,y\),06', 1n t?ch;t ?. If Tenant fails to submit its plans and specifications within the day period provided in paragraph 1, the Landlord may, at its option, in addict h other remedies available for Tenant's default, have the sole right to cancel this Lease within t ' Gays. Indulgences granted to Tenant shall not be construed to be a waiver of the provisions of this palpgraph. Time Is of the essence of this agreement Tenant shall have access to change locks upon Landlord's receipt of two (2) sets of plans, contractor's insurance and Tenant's acceptance of space. Tenant will pay costs of lock change and must make appointment with Landlord. B. Landlord's Work. LANDLORD HAS NO OBLIGATION TO PERFORM ANY WORK WITHIN THE PREMISES OR THE SHOPPING CENTER UNLESS STATED IN EXHIBIT *C-2. SMA66 Ore OBLIGATED TO PrmFW-ORM SUCH WORK AS 19 weree?AOV IF []ENDER THE PREMISES UgeeU" FOR T-1 16, PURPOSES 6reAS C. Tenants Work. All work not specifically described as Landlord's obligation in Exhibit "C-2" shall be the obligation of Tenant and shall be performed in accordance with approved plans and specifications at the sole cost of Tenant. The following work shall be at the sole expense of the Tenant and shall be subject to the approval of the Landlord, unless otherwise expressly provided herein: 1. Furniture and Fixtures - all furniture, furnishings, trade fixtures and related parts, all of which shall be new unless otherwise approved by Landlord. 2. Fixture and Equipment Connections - electrical and mechanical connection of all merchandising, lighting, floor and wall fixtures or equipment and related parts, including kitchen and food service equipment and other equipment peculiar to Tenant's occupancy. Outdoor seating plan if local ordinance allows. 4. Approved Fire Protection Devices - approved fire extinguishers or fire protection devices in size, type and quantity throughout the Premises as required by code and standards of governing insurance rating boards. Sprinklers will be a part of the Landlord's work. 5. All Signs and Graphics - the design, installation and location of all signs, exit signs and emergency lighting. Landlord must approve all signs prior to any Installation. Signage will be solely Tenant's responsibility. Landlord will not be responsible for compliance with city ordinances or liable for Tenant's contractor actions. 02 27 07 JaxLeea12504v11/15/07 INITIAL C EN CENTERS TER S . Show Window Backgrounds - all show window backgrounds, show windows, show window floors, show window ceilings and show window lighting installations. 7478. Walls and Wall Finishes - all interior partition walls within the Premises and all finishes on walls, lnckxting placing the finishes and installing the insulation on and within the partitions erected by Landlord. 18M. Doors - all doors and hardware within the Premises. Service doors to exterior are provided by Landlord. 98118. Floor Coverings - all floor coverings and floor finishes. 10484844. Interior Final Finishes - all interior painting, papering, paneling and decoration. D. General. 1. Landlord, Tenant or utility company shall have the right, subject to Landlord's approval, to run utility lines, pipes, root drainage pipes, conduit, wire or duct work, where necessary, through attic space, column space or other parts of the Premises, and to maintain same in a manner which does not interfere unwarily with Tenants use thereof. 2. The Tenant shall prepare all its piano and perform all its work to comply with all governing statutes, ordinances, regulations, codes and insurance rating boards; take out all necessary permits and obtain certificates of occupancy for the work performed by Tenant - all subject to Landlord's approval. Tenant shall further pay all utility deposits and government impact fees. 3. The concrete floor will be designed to a support a uniformly distributed load. Should the Tenant desire a heavier loading, Tenant agrees to pay the cost of engineering and the cost of providing such heavier loading capacity. 4. All work done on the Premises by Tenant must be performed by licensed contractors approved by Landlord. Tenants contractors shall be required to waive all lien rights against Landlord's interest in the Shopping Center. 5. Meters - All meters required for utility services are already installed in the 6. Tenant has permission of Landlord to hold a grand opening event. 02/27 07 wax ls¢a12509 Yl 1/15/07 rNXTM RFGENCY CENTERS Cl) a O Q CO W C3 /Z v VI W OC ar z oc r V ?= W m ? Z J GENC`i NTF.RS a 0 g 5 0 f Q6Q Oi ?V d a 5k <a i< zL? 8J m9 x° v ?G a? ?a T C q? C 3 Z s a W m 0 O_ w O N N N ° ° ° w ??? N c ax ?s a x•?•c ?a Nzt? .w sso?o?sog L) S 00 79- ° m o?oo ua goo w'U?.S= = ? a ? a ? a s? c a a a v, a REGENCY CENTERS 74 5 3 w ?f a _N ?Q O a g d 0 s a$ w b o? m T ?o g m 0 0 w 0 N eco u `D u H ^ Q Ir. $ ? w ? t w o u ' O^ Q g G C C ?- g a Y? u c w .. e 3'c= wt w C? H .L J'am' U " v? u p ? 1 app fAw O ??Oj Q r- C >i L Oq ytl - e K > N ? 'g. ?. 3 cr ST C W u; c g0 ? d ° 2 c mp o y c >N o$ 3 O 3 -? ? w' n c S ae ° aw E? Q o r m •a 3 y ? c E E° s 0x ? E E°°ES?S _w O ya. 0 C v? U 3 I 0 ° a ?}6 F (Q?1 Ll _N 6 O? R 6 ? y a ? 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Qa r p z? 8 ?Z m 3 y F- O o? 3 u _ u •C a? u, ?ay ? m?F X344 amp z0 °' u V G m >p s 3t,, ?ya G_ OoW 7ps p a coi i ... w W r C a u 0 g p C C p p, of CO) ci cli r 0 0 v y O `s c ? d v 3 uU ? W C ? ? C o w CC RE eD>u?8'> ?a c = Et D rib `u o• c °° 3 3 10 °?•E ? E o? °? e°o? $,? eos ? °o S ? ? e? •5? ti? ???' a.?E ?? S'O'$ 80 w.a3 .. u ?3 c .» 3 ?? ? Or? Et ss E $3aaCg a o>?n vs y v vi %c cz eo a M W 3 E g 6 x?_x FN ?i a? 8g 8 ?J U n? g? C 0 0 s Z O 0 O CF,NTF,RS Modified Exhibit C-2 For Hollywood Tan Regency Centers Vanilla Shell October 4, 2006 This work is to be completed exclusively by the Landlord at the Landlord's expense, according to the Landlord's specifications. Any changes made to the Landlord's standard specifications initiated by the tenant will be at the expense of the tenant. Layout & Constrwdon 1. Demising walls shall be either 3 5/8" or 6" metal studs, non-insulated, with 5/8" fire rated gypsum board to roof deck; taped, spackled and sanded. Back wall is unpainted block. 2. Roof system shall be a single ply ballasted membrane roof or built up roof, to be determined at the Landlords discretion 3. Storefront shall be 1/4" thick plate glass in an aluminum frffine with 1/4" tempered glass in doors and as otherwise required by local codes. Storefront shall extend from floor to a height of 10'. A single entry door will be provided. 4. Rear service door(s) shall be provided, providing that the space depth exceeds 59. Service door(s) to be 20 gauge painted with building standard hardware to include lock set and storm chain Standard Finishes 5. Moors: All floors to be a minimum of 4" thick reinforced concrete with a poly vapor barrier. Concrete floors to be smooth trowel finish, no paint, hardener or sealer. 6. Ge' Dine: Ceiling (10'- 0") ten feet in beight, 2'-0" x 4'-0" non-combustible lay-in acoustical ceiling tiles. 7. Plumblar. Landlord to provide one (1) toilet room, or additional as required by code, ventilated, with one water closet, one lavatory, one drinking fountain, one mop sink and hot water heater to meet ADA and local codes. RFGENCI` CENTERF 8. Ileatine. CooWw, VwWladan: Landlord will provide a combination heating and cooling unit(s) complete with dud work, diffusers and thermostat Cooling design shall be based on the minimum requirements set forth by the American Society of Heating and Air Conditioning Engineers (ASHRAE) and/or a minimum of one ton cooling capacity perms square feet of sales area. Fin Protecdm: Landlord will install a complete automatic sprinkler system (wet) for the demised Premises, as required by local governing codes. The design of such system and the number and location of sprinkler heads to be installed shall be in accordance with the Landlord base interior design. Any modifications to base design required by Tenants interior design or proposed use or occupancy shall be at Tenants sole cost and expense. 10. Eky&kad power Power to be individually metered by the local utility company. Landlord zhaU provide one_2 _ circuit, - _ amp panel. Convenience outlets (120 rg) will be provided on the side peruneter wails, two per side wall, fourtotal. 11. j} :, Landlord will provide one (1), 3-lamp, Z-0" x 4'-0" recessed fluorescent fixture with acrylic lense per 100 square feet of sales area. Tenant to provide wiring to meet signage voltage requirements. Connection and wiring for the sign by tenant Toilet room to receive a combination exhaust fanlight Exit signs and emergency lights will be provided per local code. 12. Tekahoozw. PVC conduit stubbed out at rear wall adjacent to electrical paneL Tenant to provide all wiring, backboards, connections and equipment. 13. TrAgnt Siarnare: Landlord to provide conduit from the backside of the sign band to tenant panel and time clock Landlord to provide J-Box, conduit and tuner. Tenant to provide actual hardwiring, signage and installation. 14. Store Address Us= Landlord to provide permanent, specified, uniform suite identifying number that will be attractive for the life of the project FNTFR ? J rF.:NTF.R ' 'v 5 EXHIBIT E REQUIREMENTS AND RESTRICTIONS Tenant: 1. will not, without Landlord's consent, conduct or permit to be conducted any auctions, fire, bankruptcy or going-out-of-business sales, or similar type sale, in connection with the Premises; provided, however, that this provision shall not restrict the absolute freedom of Tenant to determine its own selling prices nor shall it preclude the conduct of periodic seasonal, promotional or clearance sales; 2. will not use or permit the use of any apparatus for sound reproduction or transmission or of any musical instrument in such manner that the sounds so reproduced, transmitted or produced shall be audible beyond the interior of the Premises; will not utilize an advertising medium within the Shopping Center which can be seen, heard or experienced outside the Premises, including, but not limited to, flashing lights, searchlights, loudspeakers, phonographs, ratio or television; will not display, paint or cause to be displayed, painted or placed, any handbills, bumper stickers or other advertising devises on any vehicle parked in the parking area of the Shopping Center, will not distribute, or cause to be distributed, in the Shopping Center any handbills or other advertising devices; and wiN not conduct or permit any activities that might constitute a nuisance; 3. will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the Premises; will not cause or permit strong, unusual, offensive or objectionable noise, odors, fumes, dust or vapors to emanate or be dispelled from the Premises; will not bum trash or store or permit accumulations of any trash, garbage, rubbish or other refuse outside of the Premises except in compactors or other receptacles approved by Landlord; 4. will not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or standing, outside of said area, of trucks, trailers or other vehicles or equipment engaged in such loading or unloading in a manner to Interfere with the use of any Common Areas or any pedestrian or vehicular use and good shopping center practice; will use its best efforts to complete or cause to be completed all deliveries, loading, unloading and services to the Premises prior to 10:00 a.m. each day; 5. will not paint or decorate any part of the exterior of the Premises, or change the architecture] treatment thereof, or install any visible protective devices such as burglar bars or security shutters or window tilling, without first obtaining Landlord's written approval; and will remove promptly upon order of Landlord any paint, decoration or protective device which has been applied to or installed upon the exterior of the Premises without Landlord's prior approval, or take such other action with reference thereto as Landlord may direct; 6. will keep the inside and outside of all glass in the doors and windows of the Premises clean; will not place or maintain any merchandise, vending machines or other articles in the vestibule or entry of the Premises, on the footwalks adjacent thereto or elsewhere on the exterior thereof; will maintain the Premises at its own expense in a clean, orderly and sanitary condition and free of insects, rodents, vermin and other pests; and will keep refuse in proper containers on the interior of the Premises until removed from the Premises; 7. will comply (at its sole cost and expense) with all laws, rules, regulations, orders and guidelines now or hereafter in force relating to or affecting the use, occupancy, alteration or improvement of the Premises, including parking requirements (`Laws') and will not use or permit the use of any portion of the Premises for any unlawful purpose or in violation of any recorded covenants, conditions and restrictions affecting the Shopping Center; 8. will not piece, permit or maintain on the exterior walls or roof of the Premises any sign, advertising matter, decoration, lettering, insignia, emblems, trademark or descriptive material (herein called 'Signs') and will not permit any Signs to remain or be placed on any window or door of the Premises unless the same have been approved in writing by Landlord; and will maintain any and all Signs as may be approved in good condition and repair at all times, Landlord reserving the right to do so at Tenerife expense If Tenant fails to do so after five (5) days' notice from Landlord; Tenant acknowledges that it will install its approved Signs within thirty (30) days from date of possession of the Premises; 9. will keep the display windows in the Premises electrically lighted and any and all electric signs lighted during all other periods that a majority of tenants are open for business in the Shopping Center, and 10. will not use the sidewalks adjacent to the Premises, or any other space outside of the Premises, for the sale or display of any merchandise or for other business, occupation or undertaking. 02 27 07 !ax UzW 2509 0 1/15/07 INITIAL RP.GFNCY CENTERS EXHIBIT F TENANT'S IMPROVEMENTS In no event shall Tenant make or cause to be made any penetration through any roof, floor or exterior or corridor wall without the prior written consent of Landlord. Should Landlord consent to Tenant's penetration through the roof, Tenant shall use Landlord's roofing contractor to repair or re-flash Tenant's roofing penetrations. Tenant shall delfver to Landlord a certification letter from this roofing contractor stating that all roof repairs and penetrations have been made in compliance with the roof warranty. This certification is required in order for Landlord to release any Tenant Allowance monies. Tenant shall be responsible for any and all damages resulting from any alteration, addition or change Tenant makes, whether or not Landlord's consent therefor was obtained. Any and all alterations, additions and changes made to the Premises which are consented to by Landlord shah be made under the supervision of a licensed architect or licensed structural engineer and in accordance with plans and specifications approved In writing by the Landlord before the commencement of the work and all necessary governmental approvals and permits, which approvals and permits Tenant shall obtain at its sole expense. All contractors and subcontractors utilized by Tenant shall be subject to Landord's prior written approval. All work with respect to any alterations, additions and changes must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Premises shelf at all times be a complete unit except during the period of the work. COMPLIANCE WITH LAWS. Any permitted changes, alterations and additions made by Tenant shall be perforned strictly in accordance with applicable laws, rules, regulations, building codes and architectural review boards relating thereto including, without limitation, the provisions of Title III of the Americans with Disabilities Act of 1990. Tenant shall have the work performed (i1 in such a manner so as not to obstruct the access to the Premises or to the premises of any other tenant or obstruct the Common Areas, (ii) so as not to interfere with the occupancy of any other tenant of the Shopping Center and (ir) at such times, in such manner and subject to such rules and regulations as Landlord may from time to time reasonably designate. Throughout the performance of Tenant's alterations, Tenant shall obtain, or cause its contrac fors to obtain, workers compensation Insurance and commercial general liability insurance in form and substance satisfactory to Landlord and name Landlord as an additional Insured thereunder. INSURANCE AND RECONSTRUCTION. In the event Tenant shall make any alterations, additions or changes to the Premises, none of such alterations, additions or changes need be insured by Landlord under such insurance as Landlord may carry upon the Landlord's Building, nor stall Landlord be required under any provisions of this Lease to reconstruct or reinstall any such alterations, additions or changes in the event of casualty loss, it being understood and agreed that all such alterations, additions or changes shall be insured by Tenant pursuant to Article 11 and reconstructed by Tenant (at Tenant's sole expense) in the event of a casualty loss pursuant to Article 12. I 02 27 07 Jax Lega12509 Y1 1115/07 RVOENCY (-F.N'fF.Rc INITIAL HE" EXHIBIT G EXCLUSIVE and RESTRICTED USES Best Buy Landlord shall not permit any person or entity other than Best Buy (or Best Buy's parent company, affiliates, assignees, sublessees and assigns) in apace lessed directly or indirectly from Landlord adjacent to the Shopping Center, to sell, rent, service and/or warehouse (and, if applicable, ins" in motor vehicles) the following product categories (the "Protected Items"): electronic equipment and appliances (including, without limitation, televisions, stereos, radios and DVD and video machines); major household appliances (including, without limitation, refrigerators, freezers, stoves, microwave ovens, dishwashers, washers and dryers); personal computers and peripherals, computer software; car radios, stereos, tape decks and phones; entertainment Software, including compact discs, music videos, DVDs and prerecorded tapes; accessories and connectors for products sold by Tenant (including, without limitation, cable connectors, surge protectors, cables, wires and batteries); telephones, telecopy, facsimile and photocopy machines; photographic cameras and equipment; office equipment, supplies and furniture; looks and magazines; sporting equipment and related items; toys; any substitutes for or items which are a technological evolution of the foregoing items; and/or any other related items, without Tenant's prior written consent, which may be granted or withheld in Tenant's sole and absolute discretion. The foregoing restrictions shall not apply to any of the following retailers: (i) Ross Drees for Less and its corporate affiliates and related companies for so long as it operates primarily as a discount clothing retailer, (ii) Bed, Bath & Beyond for so long as it operates primarily as a housewares retailer, (iii) Office Max for so long as it operates primarily as an office supply retailer; (iv) TJ Maxx, Stemmart or Homegoods, for so long as it operates primarily as a discount clothing retailer; (v) any discount or department store operator (such as Wal-Mart, K-Mart, Sears or Target), wholesale club (such as Costco, Sam's or BJ's Warehouse) or home improvement store (such as The Home Depot or Lowe's Home Improvement) occupying seventy thousand (70,000) square feet or more; (vi) any supermarket store operator occupying twenty- five thousand (25,000) square feet or more; (vii) a national book and magazine retailer (such as Borders or Barnes & Noble) for so long as such retailer operates primarily as a national book and magazine relaikr (viii) a national sporting goods retailer for so long as such retailer continues to operate as a national sporting good retailer, (ix) a national or regional toy store having not less than fifteen (15) other stores opera and operating within the country for so long as such retailer continues to operate primarily as a national or regional toy store; (x) one (1) video rental store for so long as it continues to operate primarily as a video rental store; or (xi) one (1) cellular phone store occupying not more than two thousand two hundred (2,200) square feet located in the sixty (60) foot portion of Building H in Unit #3 closest to Unit #1 so long as it continues to operate primarily as a cellular phone store, or (xii) the "Incidental Sales" as hereinafter defined of all or any combination of the Protected Items. For the purposes of this Article 30, "Incidental Sales" shall be defined as the sale of all or any combination of the Protected Items by any tenant or occupant of the Shopping Center from an area not to exceed the leaser of (y) one thousand (1,000) square feet, or (z) five percent (58A) of any tenant's or occupant's space at the Shopping Center, inclusive of one-half (1/2) of any adjacent aisle space. In addition to the foregoing, Tenant shall have the right to (a) sell gourmet and other non-perishable food items within up to three hundred (300) square feet of the Premises, in support of and incidental to the foregoing product categories, and (b) use up to one thousand five hundred (1,500) square feet of the Premises for a non-alcoholic beverage kiosk or bar, including seating area, with food, snack and bakery items incidental thereto. "Landlord," for purposes of this Article 30, shall be defined to include Landlord, and (A) if Landlord is a corporation, its principal shareholders; or (B) if Landlord is a partnership, its partners sad any principal shareholders or partners of any partner which is a corporation or shareholder; or (C) if Landlord is a bust, the beneficiaries of any such trust, including the principal shareholders or partners of any beneficiary, which is a corporation or trust, all of whom shall execute an agreement to be bound to this Article 30. In no event shall Tenant be bound by any exclusives granted by Landlord subsequent to the execution of this Lease to any other party or occupant without Tenant's prior written consent, which may be granted or withheld in Tenant's sole and absolute discretion. Notwithstanding anything to the contrary set forth in the foregoing, this paragraph shall not apply to Advance Auto; provided, however, that in the event Landlord's consent is required in order to permit a change in Advance Auto's use, then Landlord shall not provide such consent if the proposed use would violate this Article 30; furthermore, in the event Landlord regains possession of the Advance Auto premises, such premises shall be subject to this Article 30. Wegm9w Landlord shall not allow any portion of the Shopping Center, other than the Target Parcel, including any land owned by Landlord which may at any time in the future be added to the Slopping Center, to be used as a supermarket or other business engaged in the sale of food for off-premises consumption; a drug store or pharmacy, except to the extent that a pharmacy is operated as a deparmrent within a discount department stare; a warehouse club store such as Coabco or BJ's; a supercenter such as a Wal-Mart Supercenter, K-Mart Superstore or a Target Supercenter, a convenience store such as a WaWa or 7-11; or a pizza or submarine sandwich store such as Little Caster's or Subway (hereinafter referred to as "Prohibited Uses"). Notwithstanding anything to the contrary in this Lease, however, the sale of foods, including prepared and nouprepared foods, rnack foods, beverages, and the like, by an occupant of another store at the Shopping Center incidental to such occupant's business, provided that the sales space devoted to such items does not exceed 3,000 square feet, and a sit-down restaurant having takeout service shall not be deemed a Prohibited Use; provided, the forgoing restriction shall not apply to the Target Parcel. In addition, Landlord shall not use or suffer or permit to be used for a Prohibited Use any portion of any other property within a radius of 5,000 feet of the Shopping Center which is directly or indirectly owned or controlled by Landlord or by one or more individuals who directly or indirectly have an ownership interest in Landlord. REGENCY - 1-CENTER C Subject to any order of a bankruptcy court having jurisdiction or other judicial determination by a court having competent jurisdiction that the exclusive is unenforceable, during the Term, Lessor shall not allow on any other parcel or other property now or hereinafter connected to the Shopping Center and owned or controlled by Lessor the operation of any other full service steakhouse restaurant simile to Longhorn Steakhouse including, but not limited to, such steakhouse restaurants as: "Chop House", "Logan's Roadhouse", "Lone Star Steakhouse", "Outback Steakhouse", "Roadhouse Grill", "Ryan's Steakhouse", "Sagebrush", 'Saltgrass Steakhouse", "Sizzler", "Smokey Bones", "Steak and Ale", `Ted's Montana Grill", 'Texas Roadhouse", 'Texas Steakhouse", "Trail Dust Steakhouse", "Tumbleweed" or such similar steakhouse restaurant concepts. In addition, subject to the terms of any leases affecting such property as of the date hereof, during the Tenn, Lessor shall not allow on the adjacent property presently containing the Advance Auto Parts Store (as identified on EzhiMt "A" to this Lease) the operation of (i) any restaurant use containing more than 4,000 square feet, or (ii) any restaurant use having sit down service. For purposes of this Section, "owned or controlled by Lessor" shall include property owned directly or indirectly by Lessor or property in which one or more of the shareholders, members or partners of Lessor holds a controlling interest. Notwithstanding the foregoing, the above steakhouse restriction shall not apply to the following parcels: Unit #1 and Unit #2. Lessee acknowledges that Lessor will have limited control over those parcels not owned by Lessor. Advanced Auto Landlord shall not, for so long as this lease remains in forte and effect, either directly or indirectly, lease to any third person any land or building, whether presently owned or hereafter acquired, within two (2) inde(s) form the leased premises for the purpose of conducting thereon a business similar to that being conducted by Tenant (i.e., Advanced Auto) upon the leased premises, nor shall Landlord itselt; nor any of its individual stockholders, partners or beneficiaries, as the case may be, either directly or indirectly, own or operate any such business within said two (2) mile(s) radius. Tenant shall use the leased premises only for the purpose of operating and conducting therein a business of the type conducted by the chain of stores operated by Tenant, which is generally the sale of automobile parts and accessories, including tins, batteries and wheels. Chili's During the term of this Lease, including any and all Renewal Terms, except for Tenant (i.e., Chili's), Landlord shall not allow to operate on or in the four (4) pad sites located in Units #5 and #6 (the "Restricted Area") another sit- down restaurant with waitedwaitress service which both (i) serves alcoholic beverages and (u) features a menn typically offered by an American grill and bar restaurant (collectively, the "Protected Use") such as, for example purposes only, Appleba's, Bennigan's, Cheddar's, Damods, Houlihan, Max & Irma's, O'Charley's, Ruby T esday's, Red Robin, and T.G.I. Friday's. The foregoing Protected Use restriction shall not apply to Landlord's leasing to or otherwise permitting to operate in the Center any of the following: (1) any "fast food" or simil ar restaurant such as, but not limited to, a Burger King, McDonald's, Cares Jr., Chick-Fil-A, Subway, Taco Bell, Del Taco or Wendy's; (2) any bakery or coffee slop or similar business such as, but not limited to, Panera Bread, Starbucks, International House of Pancakes, or Denny's; (3) any tenant or occupant whose principal business is that of a department store, junior department store, variety store, or specialty market; (4) any grocery store or supermarket occupying more than 40,000 square feet of gross leasable area; (5) any ethnic or specialty restaurant such as, by way of example only, and not limited to, Mexican (which shall be permitted to serve fajitas), German, Italian, Chinese, seafood, steakhouse, chop house, chicken, barbecue or other restaurant with a specialty menu or featured food item menu, including, by way of example only, Olive Garden, Red Lobster, Outback Steakhouse, Longhorn, Steakhouse, Lone Star Steakhouse, Black Angus, Claim Jumper, Mind's CaM Trail Dust Steakhouse, Ryan's Steakhouse, Golden Corral, Sizzler, Cracker Barrel, El Tonto, El Torito Grill, Chevy's, On The Border, Cozymel* Acapulco's, El Cholo, and El Ranchito; or (6) any use on or within any portion of the Center other than the Restricted Area. Landlord agrees that it will not consent to a change in use of any premises in the Center resulting in a violation of Tenant's Protected Use. No tenant or occupant of the Shopping Center [other than (i) Tenant (ie., Ross), (ii) Target Corporation, Wegmaas Food Markets, Inc., Chili's Grill & Bar (Brinker Penn Tmst, Longhorn Steakhouse (RARE Hospitality International, Inc.) and Advanced Auto (collectively, the "Existing Tenants") and their respective successors-in-interest, provided, that each Existing Tenant operates its customary retail business in its promises under its customary tradename and in a manner substantially similar to the majority of the Existing Tenant's other stores in Pennsylvania as of the effective date of the Ross lease and (iii) any tenant that commences its use after Tenon (Le., Rosa) has "Gone Dart' within the meaning of Section 15.6 of the Ross lease (collectively, the "Acceptable Tenants"), provided, that each Acceptable Tenant operates its customary retail business in its premises under its customary tradename and in a manner substantially simil ar to the majority of the Acceptable Tenant's other stores in Pennsylvania] may use, and Landlord shall not lease to or permit any other tenant or occupant of Landlord's Parcel, other than an Acceptable Tenant or Existing Tenant, to use its premises for an Off Price Use (as hereinafter defined). The foregoing restriction with respect to Off-Price Use shall not apply to Unit #1 of the Shopping Center. Notwithstanding the foregoing, Landlord may enter into a lease with the TJX Companies for the operation of one (1) Mushalls or TJ Man Store not to exceed thirty five thousand (35,000) square fat of Leasable Floor Area provided that such lease specifically excludes Tenant (ie., Ross) from the application of the exclusive in form and substance reasonably acceptable to Tenant. "Off-Price Use," for the purposes heron; shall now the retail sale of men's, women's and children's apparel (collectively, the "protected Items"), on an every day basis at prices reduced from those charged by typical retail operators, provided, however, that this definition shall not prohibit sales events of any of the Protected Items by a typical retailer at prices discounted from that retailer's every day price. As of the Effective bate, examples of REGENCY CENTERS Off Price Use retailers include such retailers as T.J. Maxx, Marshall's, Nordstrom Rack, Goody's, Factory 2U, Burlington Coat, Steimnart, and Filene's Basement. Notwithstanding the paragraph above, Landlord may lease or sell the whole or part of an Exempted Budding (as defined below) to not more than one (1) tenant or occupant occupying not less than twenty thousand (20,000) square feet of Leasable Floor Area and to be used for an Off Price Use ("Exempted Building Off Price Use'). An Exempted Budding shall mean the Target Budding or any budding that is sod or leased to an tenant or occupant with a Leasable Floor Area of not less than sixty thousand (60,000) square feet that is not primarily engaged in the Off Price Use, provided that for this purpose a department store such as Kohla, Mervyn's or Sears shall not be deemed to be engaged in an Off Price Use. Upon the occurrence and during the existence of one (1) Exempted Building Off Price Use, Landlord shall not lease to or permit further occupancy of by an Off Price Use, except with respect to Existing Tenants, Acceptable Tenants or any use occurring within Unit #1. Lane Bryant The sale of large size (14 and up, or its equivalent) women's clothing and/or apparel. Office Max The sale of office, home office, school or business products, computers and computer products, office, home office, school or business supplies or equipment; office fianiture; mobile or portable telephones or pagers; or electronics (including by way of example those businesses operated by Office Depot, Staples, Office Shop Warehouse, Mardel Christian Office and Education Supply Store, Mail Boxes etc., and Workplace); or for use as a business support center, copy center or "Kinko" type of operation (all of which are hereinafter referred to as the "Prohibited Uses'). Notwithstanding the foregoing, in no event shall the provisions of this Section 22.3 prevent the operation of a Bed Bath & Beyond, Inc. store, a Ross Dress for Less store or a Best Buy store. Bed Bath and Beyond Landlord shall not lease, rent or occupy or permit any other premises in the Shopping Center or any land (the ,,Rdetmt Load) contiguous or adjacent to the Shopping Center (including, without limitation, any land that would be contiguous or adjacent to the Shopping Center but for any intervening road, street, alley or highway) now or hereafter owned or controlled by Landlord or its Affiliate(s), to be occupied, whether by a tenant, sublessee, assignee, licensee or other occupant or itself; for the sale, rental or distribution, either singly or in any combination, of items contained in any of the following respective categories of membandise: (a) linens and domestics; (b) bathroom items (excluding plumbing hardware); (c) housewares (excluding fi-ture, and major appliances or "white goods'); (d) frames and wall art (but the foregoing shall not prohrbit a store that sells custom frames that are made to order as opposed to readymade frames of standard sizes and provided that a fore art gallery shall not be precluded); (e) window treatments; and/or (f) closet, shelving and storage items (which items, either singly or in any combination, are hereinafter referred to as the 'Exclustm Items'). Notwithstanding the foregoing, any tenant or subtenant in the Shopping Center or the Related Land shall have the right to utilize its respective premises for the sale, metal an&or distribution of Exclusive Items within an aggregate area (which shall include an allocable petition of the aisle apace adjacent to such sales, rental and/or distribution area) not to exceed the leaser of (x) five (5%) percent of the Floor Area of such tenant's or subtenant's premises, or (y) two thousand (2,000) square feat of Floor Area within such tenant's or subtenant's premises. For example only, a tenant occupying premises containing a total of five thousand (5,000) square feet of Floor Area could sell Exclusive Items (either singly or in any combination) so long as the aggregate area within its entire demised premises in which any and all Exclusive Items are sold shall not exceed two hundred fifty (250) square feet. Existing tenants of the Shopping Center and any Related Land (and current or future assignees or sublessees of such tenants) shall nevertheless be subject to the restrictions contained in this paragraph in the event that (i) the lease between Landlord (or Landlord's Affiliate) and any such tenant requires the consent of Landlord (or its Affiliate) to any assignment or subletting or to a change in the use of the applicable premises to permit the sale, rental or distribution of the Exclusive Items; or (ii) Landlord or its Affiliate permits or agrees to an expansion of the applicable premises for the sale, rental, or distribution of the Exclusive Items. The restrictions set forth in the paragraph above shall not apply to a national or regional (i) department store (such as, by way of example, Wal-Mart, Kobl's, Macy's or Target), (ii) discount chub (such as, by way of example, Costco, BJ's Wholesale Club or Sam's Club), (iii) lame improvement center (such as, by way of example, Home Depot or Lowe's), or (iv) supermarket (such as, by way of example, Wegrnans), commonly located in first-class shopping centers in the Commonwealth of Pennsylvania, each occupying at least eighty thousand (80,000) square feet of Floor Area within the Shopping Center, except that a supermarket as set forth in (iv) above is only required to occupy at least fifty thousand (50,000) square feet of Floor Area within the Shopping Center. The exclusive rights granted to Tenant in the two paragrapbs above shall inure to the benefit of any assignee of Tenant's interest in the Bed Bath Lease and to any sublessee of a Floor Area of at least fifteen thousand (15,000) square feet of the Bed Bath Premises. ULTA Cosmetics Tenant (i.e., ULTA) shall have the exclusive right to conduct any portion of its Primary Business in the Shopping Center, and all other tenants or other occupants of any portion of the Shopping Carder owned or controlled by Landlord shall be prohibited from engaging in any portion of such Primary Business. For purposes hereof, the term `exclusive right" shall mean anv provision that purports to restrict or prohibit, or under which the grantor agrees drat R FGENC'Y CENTERS it will restrict or prohibit or will not grant the right to engage in, the sale of any product or service or the conduct of any type business, except by or to the party granted such exclusive right. Further, Landlord covenants that it will not lease any space in the Shopping Center to the following tenants whose primary use is substantially similar to Tenant's Primary Business, such as: Beauty Brands, Beauty First, C.O. Bigelow, Pure Beauty, Sephora, or Trade Secret. Notwithstanding the foregoing, Tenant's exchuuve right shell not apply to uses associated with (a) existing tenants in the Shopping Center who are entitled to sell such products and/or provide the services that are covered by Tenant's exclusive rights, (b) family hair care such as Great Clips, Fantastic Sam's, or other similar value oriented type operations, (c) any national or regional retail tenant in excess of twenty-five thousand (25,000) square feet that sells the goods and/or provides the services that are covered by Tenant's exclusive rights as a part of its normal business operations, but not as its primary use, or (d) any tenant or subtenant in the Shopping Center that sells the goods and/or provides the services that are covered by Tenant's exclusive rights within an aggregate area not to exceed ten percent (10%) of the Gross Floor Area of such tenant's or subtenant's premises. Notwithstanding the foregoing, Tenant's exclusive right shall not apply to Unit #1 or Unit #2. As used herein, the term "Tenant's Primary Business" shall mean (i) the retail sale of cosmetics, fragrances, hair care products; personal care appliances; skin care products; body care products; and other health and beauty products sold in a majority of Tenant's stores; and (ii) the operation of a full service hair salon so long as such salon does not exceed 25% of the Gross Floor Area of the Premises. Game tpS Video Games. This exclusive does not apply to Video Warehouse, Hollywood Video, Blockbuster Video, or similar video store. Mauaie Moo's Landlord will not lease in the future to any tenant in the Landlord's Building for the purpose of conducting within the Landlord's Building as its principal business the sale of ice cream and ice cream cakes or other ice cream (soft, custard, conventional, or otherwise) products Hair Cutberv With the exception to a full service salon that exceeds 2,000 square feet, Tenant will have the exclusive to operate a hair salon within the center. Hollywood Tan Tanning Salon Dental Services PROHIBITED USES 1. Any fictitious going-out-of-business sale, lost-our-lease sale or similarly advertised event; 2. Any central laundry, dry cleaning or Laundromat (except that a dry cleaner that performa all dry cleaning outside the Shopping Center shall be permitted, so long as its on-site premises are located more than one hundred fifty (150) feet away from the Premises);; 3. Any auditorium, meeting hall, sporting event, or other entertainment use, except that any such other entertainment use commonly found in first class shopping centers in the Harrisburg metropolitan area Any fright club, discotheque, or dance hall (except as incidental to a sit shall be permitted so long as the same are located more than three hundred (300) feet away from the Premises; 4. Any "Pornographic Use", which shall include, without limitation: (x) a store displaying for sale or exhibition books, magazines or other publications containing any combination of photographs, drawings or sketches of a sexual nature, which are not primarily scientific or educational, provided, however, that the sale of books, magazines and other publications by a national bookstore of the type normally located in first-class shopping centers in the State/Commonwealth in which the Shopping Center is located (such as, for example, Borders and Barnes & Noble, as said stores currently operate) shall rot be deemed a "pornographic use" hereunder; or (y) a store offering for exhibition, sale or rental video cassettes or other medium capable of projecting, transmitting or reproducing, independently or in conjunction with another device, machine or equipment, an image or series of images, the content of which has been rated or advertised generally as NC-17 or "X" or tnrrated by the Motion Picture Rating Association, or any successor thereto, provided, however, that the sale or rental of such videos by a national video store of the type normally located in first-class shopping centers in the State/Commonwealth in which the Shopping Center is located (such as, for example, Blockbuster or West Coast Video, as said stores currently operate) shall not be deemed a "pornographic use" hereunder, or massage parlor except for thersp"arc massages given in connection with the operation of a day spa or health club which may otherwise be permitted under this Lease; Any catering or banquet hall; REGENCY 4 C'F.NTFRc ?J? 6. Any night club, discotheque, or dance hall (except as incidental to a sitdown restaurant permitted hereunder); Any gum shop, or tattoo parlor; Any church or other place of religious worship; 9. Any automobile repair shop, or any business servicing motor vehicles in any respect, including, without limitation, any quick Tube oil change service, tire center or gasoline or service station or facility, except that any of the foregoing uses may be located on an outpsrcel within Unit 3, Unit 5 or Unit 6 as designated on the Site Plan; 10. Any carnival, amusement park or circus; 11. Any medical clinics or medical offices; 12. Any supermarket within Unit 4 as designated on the Site Plan, vpro rd? that: (a) a supermarket occupying twenty thousand (20,000) square feet of Floor area or less may be located in the premises labeled "Proposed Retail C" on the Site Plan; and (b) a supermarket may be located in the premises labeled "Proposed Retail B" on the Site Plan. 13. Any office use other than office space used in connection with and ancillary to a permitted retail use hereunder, and (y) retail offices providing services commonly found in similar retail shopping centers in the Harrisburg metropolitan area (for example, financial services, real estate brokerage, insurance agency, banking, travel agency); provided that such uses are located at least one hundred (100) feet away from the Premises (other than single tenant banks, which may be located on any Outparcel), and not more than fifteen thousand (15,000) square feet of floor area in the Shopping Center, in the aggregate, shall be devoted to such uses. 14. daycare center; 15. veterinary office, except as may be incidental to a perniiited f &line pet and pet supply store operating in at least fifteen thousand (15,000) square feet of floor area; provided such occupant shall use reasonable efforts to prevent its customers from allowing their pets to urinate or defecate in the Common Areas and will promptly remove any "dog dirt" from Common Areas; 16. children's entertainment or activity facility (such as "Discovery Zone" or "Chuck E. Cheese's") in excess of four thousand (4,000) square feet of floor area; provided no such facility may be located within one hundred and fifty (150) feet of the Premises.. 17. karate center; 18. any restaurant within one hundred (100) feet of the Premises that either (a) is in excess of three thousand five hundred (3,500) square feet of Floor area or (b) is a full service restaurant; 19. beauty parlor or nail salon 20. any store primarily selling merchandise which is classed as "odd lot," "close out," "clearance," "discontinued," "cancellation," ..second," "factory reject," "sample," "floor model," "demonstrator," "obsolescent," "over stock," "distressed," "bankruptcy," "fire sale" or "damaged", such as, for example, "r.1Grossman's Bargain Outlet", "Contractor's Warehouse", `Big Lots", "Liquidation World", or "Odd Job"; the retailer commonly known as "Christmas Tree Shops" shall be deemed not to violate the foregoing restriction. REGENCY CENTERS LANOLORD WAIVER AGREEMENT Recitals: Damomiph 2 herein. successors and assigns. SIGNATURE PAGE TO FOLLOW. 02/27/07 Ja=lmal?509 VI I115M INITIAL r2RGENCY HE= {'F:NTFRs W' REAS Landlord is the landlord under a certain lease (as at any time amended or assigned) (the "Lease") dated between Landlord and Borrower. covering certain business memises kx -•, d at commonly known as Shopoina Center (the "Leased Premises"): and Lenders arts to recover possession of the Collateral IN WITNESS WHEREOF the undersigned have executed this Agreement on the date first above der. Printed Name• Its' Landlord: a By Printed Name: Rs• Witness for Landlord oz 27 00 lax L6gW 2509 yr 1/15/07 RFGENC't f ENTF,R!? K IDTITIAL ? ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement'), is made this ?LZ day of _AW,- 2007, by and between Hollywood Tanning Systems, Inc., a New Jersey corporation ("Tenant'), HT Systems, LLC, a Delaware limited liability company ('Assignee'), Tan Holdings, LLC, a Delaware limited liability company ("Guarantor'), and Silver Spring Square H, LP, a Delaware limited partnership ("Landlord'). WITNESSETH: WHEREAS, Landlord, and Tenant entered into a Shopping Center Lease dated March 16, 2007 demising to Tenant certain space (space H-5, approximately 2,000 square feet, the 'Premises') in the Silver Spring Square ("Shopping Center'), the address of which is known as 6416 Carlisle Pike, Suite 700, Mechanicsburg, PA 17050 (herein the "Lease"), and WHEREAS,, Guarantor executed that certain Absolute Unconditional Guaranty Agreement dated 11; 'J10u`7 guaranteeing the performance of the obligations of the Lease; and WHEREAS, Tenant willfully assigns its interest in the lease to Assignee, and Assignee willfully accepts and assures the assignment thereof, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for valuable considerations, the receipt and sufficiency of which is acknowledged, the parties agree as follows: 1. The above recitals are hereby confirmed as true and correct and are reaffirmed herein. 2. Assignment: Tenant hereby assigns and sets over to Assignee all of Tenant's right, title, interest, and claim in the Lease (the "Assignment'). 3. Notice Address. As of the date hereof, the address for any notice to be provided to the Assignee under the Lease shall be: 11 Enterprise Court Sewell, NJ 08080 4. As umption: Assignee hereby accepts the Assignment and assumes and agrees to perform each and every one of the Tenant's obligations under the Lease which accrue or become due after the date hereof. Assignee shall not by this Agreement succeed to any liability which Tenant shall owe to Landlord arising prior to the execution of this Agreement, except as set forth in paragraph 7 below. 5. Landlord's Consent: Landlord hereby consents to the Assignment of the Lease to Assignee. 6. Guarantor's Consent: By its execution of this Agreement, Guarantor hereby consents to the Assignment of the Lease to Assignee. 7. Anti-Terrorism and Money Laundering Representation and Indemnification. Assignee certifies that: (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States JM LfiO&inN VI BIE W7 -1- Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN'); (ii) neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its officers, directors or controlling owners is in. violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Assignee hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorneys fees and costs) arising from or related to any breach of the foregoing certification. Should Assignee, during the term of the Lease, be designated an SDN, Landlord may, at its sole option, terminate the Lease. 8. Nothing herein shall be deemed to amend any provision of the Lease or release Tenant or any Guarantor of the Lease from any liability presently existing under the Lease, nor shall Tenant or any Guarantor be released from any prospective liability under the Lease arising: out of Assignee's default which occurs after this Agreement is executed. - 9. Tenant shall be liable and responsible for payment of the rent and all other sums due and payable under the Lease and hereunder. Landlord's consent to this Agreement is subject to payment in full of: the aforementioned sums. Assignee agrees to pay for any and all sums found to be due and owing in relation to an annual reconciliation by Landlord for the common area expenses, insurance costs, real estate taxes and utility costs. IN WITNESS WHEREOF, the parties have caused these presents to be executed as of the day and year first above written. SIGNED, SEALED, AND DELIVERED IN THE PRESENCE OF: TENANT: Hollywood Tanning Systems. Inc.. on a New Jersey corporati By: v Witness for Tenant Its: I" AN 120 1 1=1 ITACI 10 PRESIDENT Si ess for Tenant fitness for Assignee Witnes. or signee ASSIGNEE: HT Systems, LLC, a Delaware limited liabili company By: JwStin alyryi Its pj.?t? fwax& croinodonf JAX LEG& M "R V1 WM7 _2- RECENCY CENTERS i GUARANTOR: Tan Holdings, LLC, a Delaware limited liphiilli?ty company fitness or Guarantor By: Aus+•i n zo?lK i n Its: KytVvoeztA SianoAo_ Witness fo for LANDLORD: SILVER SPRING SQUARE II, L.P., a Delaware limited partnership By: Regency Realty Group, Inc. a Flo ' ratio 'ts ge partner By: Its: JOHN HRICK0 VICE PRESIDENT Witness for Landlord e for ord REGENCY CENTERS JMLEG&f2MKV1M 2M -3- . ABSOLUTE UNCONDITIONAL GUARANTY AGREEMENT KNOW ALL MEN BY THESE PRESENCE: That, THIS Absolute Unconditional Guaranty Agreement (the "Guaranty") is executed and delivered this all day of %1A 200_1 by Tan Holdings, LLC, a Delaware limited liability company, (herein 'Guarantor"), in favor of Silver Spring Square II, LP, a Delaware limited partnership, ('Landlord"). RECITALS: A. HT Systems, LLC, a limited liability company organized and existing under the laws of the State of Delaware ("Tenant'), and Landlord are party, to that certain Shopping Center Lease dated March 16, 2007 originally between Landlord and Hollywood Tanning Systems, Inc., a New Jersey corporation, predecessor--in-interest to Tenant, which Lease was assigned to Tenant pursuant to an Assignment and Assumption Agreement of, even date herewith (the 'Agreement'). B. In order to Induce Landlord to enter Into the Agreement, Guarantor agreed to execute and deliver to Landlord this Guaranty. r C, _ Guarantpr, acknowledges that Landlord would not. have- entered loto the Agreement without the execution and delivery by Guarantor of this Guaranty. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency. of which are, hereby acknowledged by Guarantor, Guarantor hereby agrees 'in favor of Landlord (and-Landlord's successors and assigns) as follows: Guarantor absolutely, unconditionally and Irrevocably guarantees the prompt and complete payment and performance when due, whether by acceleration or otherwise, of all obligations, liabilities and covenants, whether now In existence or hereafter arising, of Tenant to Landlord, and arising under the Agreement, including without limitation all amounts due to the Landlord as rent or otherwise under the Agreement (the "Obligations'). The Guarantor hereby agrees to pay and/or perform punctually, upon written demand by the Landlord, each such Obligation which Is not paid or performed as and when due and payable by the Tenant, in like manner as such amount Is due from the Tenant. For purposes hereof, the Obligations shall be performed and/or due and payable when due and payable under the terms of the Agreement notwithstanding the fad that the collection or enforcement thereof as against the Tenant may be stayed or enjoined under Title 11 of the United States Code or similar applicable law. This Guaranty is one of payment and not of collection. 2. The Guarantor's obligations under this Guaranty are absolute and unconditional and shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or the Agreement, or by any other circumstance relating to the Obligations or the Agreement which might otherwise constitute a legal or equitable discharge of or defense of a guarantor or surety. Guarantor hereby irrevocably waives any and all suretyship defenses, defenses that could be asserted by Tenant (except payment) and all other defenses that would otherwise be available to Guarantor. All payments by the Guarantor pursuant to this Guaranty shall be made without setoff. The Landlord shall not be obligated to file any clalm relating to the Obligators in the event that the Tenant becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Landlord so to file shall not affect the Guarentor's obligations under this Guaranty. The Guarantor irrevocably waives any right to require the Landlord to pursue any other remedy In the Landlord's power whatsoever, whether against the Tenant or any other obligor principally or secondarily obligated with respect to the Obligations. The Guarantor Irrevocably waives any defense arising by reason of any disability, bankruptcy, morgarzaton or similar proceeding Involving the Tenant. In the event that any payment in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, the Guarantor shall remain liable under this Guaranty In respect of such Obligations as if such payment had not been made. 3. The Guarantor agrees that the Landlord may at any time and from time to time, either before or after the maturity thereof, without notice to or further consent of the Guarantor, extend the time of payment of, or performance of, or renew, any of the Obligations, and may also make any agreement with the Tenant or with any other party to or person liable on any of the Obligations, or interested therein, for the extension, renewal, payment, compromise, waiver, discharge or release thereof, in whole or in part, or for any amendment or modification of the terms thereof or of the Agreement or any other agreement between the Landlord and the Tenant or any such other party or person, without in any way Impairing, releasing or affecting the liabilities of the Guarantor under this Guaranty. ,u?x m.EOk amo w ? E IBR CENTERS Initial itz REGENCY 4 1. 4. The Guarantor will not exercise any rights which it may acquire by way of subrogation until all of the Obligations to Landlord shall have been indefeasibly paid in full, or performed In its entirety. Any amount paid to the Guarantor In violation of the preceding sentence shall be held in trust for the benefit of the Landlord and shall forthwith be paid to the Landlord to be credited and applied to the Obligations, whether matured or unmatured. Guarantor hereby subordinates any and all liabilities and indebtedness to Guarantor to the prior indefeasible payment in full of the Obligations. 5. This Guaranty shall remain In full force and effect and be binding upon the Guarantor, its successors and assigns until all of the Obligations have been satisfied in full and the Agreement shall have been terminated or fully performed. This Guaranty may not be modified, discharged or terminated orally or in any manner other than by an agreement in writing signed by Landlord and Guarantor. This is a continuing Guaranty relating to all Obligations, Including any arising during any holdover term or arising under transactions renewing or extending the term of the Agreement, changing the terms of any Obligations, or creating new or additional Obligations after prior Obligations have in whole or in part been satisfied, regardless of any lapse of time. If any of the present or future Obligations are guaranteed by persons, partnerships, corporations or other entities In addition to the Guarantor, the death, release or discharge, In whole or in part, or the bankruptcy, liquidation or dissolution of one or more of them shall not discharge or affect the liabilities of the Guarantor under this Guaranty. The obligations of the Guarantor hereunder shall be additional to, and not in substitution for, any security or other guarantee or indemnity at any time existing in respect of Tenant's obligations, liabilities and covenants under the Agreement 6. No failure on the part of the Landlord to exercise, and no delay in exercising, any right, remedy or power under this Guaranty shall operate as a waiver thereof, nor shad any single or partial exercise by the Landlord of any right, remedy or power under this Guaranty preclude any other or future exercise of any right, remedy or power under this ' Guaranty. Each and every right namedY and power e Landlord-under.this Guaranty or allowed It yaw . :.. i?n tgth, - ".. or'by`the'Agreerrieht or any'other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Landlord from time to time. 7. The Guarantor hereby waives notice of acceptance of this Guaranty and n.Qtlce of any. obligation or liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or non yrn , ,an .such '~obligetk5rr°brilability; soitm'the'faking of other'acdon by L'andkxd-agafnst,' and'al( other notices whatsoever to, the Tenant, the Guarantor or others. 6. Landlord may at any time and from time to time without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder. (a) take or fall-to take any action of any kind In respect of any security for any obligation, covenant or liability of the Tenant to Landlord, (b) exercise or refrain from exercising any rights against the Tenant or others, (c) compromise or subordinate any obligation or liability of the Tenant to Landlord including any security therefor, (d) consent to the assignment by Tenant of its interest in the Agreement, or (e) consent to any other matter or thing under or relating to the Agreement Guarantor waives trial by jury in any action, proceeding or counterclaim, involving any matters whatsoever arising out of or in any way connected with the Guaranty. Guarantor agrees to reimburse Landlord for the costs and attorney's fees incurred by reason of Landlord having to enforce this Guaranty. 9. Guarantor represents and warrants to Landlord that (a) the Agreement has been duly authorized, executed and delivered by Tenant and is a legal, valid and binding Instrument enforceable against Tenant In accordance with its tents, and (b) this Guaranty has been duly authorized, executed and delivered by Guarantor and is a legal, valid and binding instrument enforceable against Guarantor in accordance with Its terms. 10. The Guarantor may not assign its rights nor delegate its obligations under this Guaranty, in whole or in part, without prior written consent of the Landlord, and any purported assignment or delegation absent such consent Is void. This Guaranty shall remain in full force and'effeat notwithstanding (a) any assignment or transfer by Tenant of Its Interest in the Agreement (in which case this Guaranty shall apply, from and after such assignment or transfer, to all of the obligations, liabilities and covenants of the assignee or transferee under the Agreement), or (b) any assignment or transfer by Landlord of Its Interest in the Agreement On which case Guarantor's obligations under this Guaranty shall Inure to the benefit of Landlord's assignee or transferee), in each case Irrespective of whether Guarantor has notice of or consents to any such assignment or transfer. 11. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AND LANDLORD JOINTLY AND SEVERALLY AGREE TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF FLORIDA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO THIS GUARANTY. Reggie/Legat Departm mt/Legally Approved Forms/Guaraniy Rev. 11.4.04 Initial REGENCY CENTERS - `t . 4 F& IN WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date and year first above written. Signed, sealed and delivered in the presence of Wi Witness GUARANTOR: Tan Holdings, LLC, a Delaware limited liability company By: 6usti%i %awyl Its: PAMM c:zero 8jV=d=V Guarantor acknowledges its address and will notify Landlord of any changes thereto. RegglelLegai DepartmenHLegally Approved Forms/Guaranty Rev. DUGENC j CENTERS Initial r 1 4. R55155001 REG0001 Make Check Payable To: Silver Spring Square II, LP P.O. Box 822343 Philadelphia PA 19182-2343 Billing Address: HT SYSTEMS, LLC DBA: HOLLYWOOD TANS 8 KARENS COURT WOOLWICH TOWNSHIP NJ 08085-3087 From: Date - 09/. Tenant Number 5980' Page - 1 Silver Spring Square II, LP P.O. Box 822343 Philadelphia PA 19182-2343 Tenant: HT SYSTEMS, LLC DBA: HOLLYWOOD TANS 8 KARENS COURT WOOLWICH TOWNSHIP NJ 08085-3087 Amount Remitted: Remit top portion with payment. ACCOUNT AGING 00763 Silver Spring Sgne e GL putt Inv Deb Doe Date Bill Cd 01/01/06 0923/07 0921/07 0921/07 BASE 0921/07 0921/07 0921/07 BASE 0921/07 Mat/07 0921/07 CAM 0921/07 0921/07 0921/07 CAM D921/07 0921/07 0921/07 INS 0921/07 0921/07 0921/07 INS 0921/07 0921/07 0921/07 SET 0921/07 0921/07 0921/07 RET 10/01/07 10/01/07 10/01/07 BASE 10/01/07 10/01/07 10/01/07 CAM 10/01/07 10/01/07 10/01/07 INS 10/01/07 10/01/07 10/01/07 SET 10/02107 10/02107 10/0207 TNNT 10,02/07 10/02/07 10/02/07 TNNT 1025/07 10/75/07 1025/07 TNNT 1025/07 1025/07 1025/07 TNNT 11/01/07 11/01107 11/01/07 BASE 11/01107 11/01/07 11/01/07 CAM 11/01/07 11/01/07 11/01107 INS 11/01/07 11/01107 11/01/07 BET 12101/07 12/01/07 12/01/07 BASE 12101/07 12/01/07 12/01/07 CAM 12101/07 12/01/07 17101107 INS 12 II07 17/01/07 12/01/07 RET 12/20/07 1220/07 1220/07 RETP 01/01/08 01/01/08 01/01/08 BASE 01/01/08 01/01/08 01/01/08 CAM 01/01/08 01/01/08 01/01/08 RET 01/01/08 01/01/08 01/01/08 INS 02/01/08 02/01/08 0201/08 BASE 0201/08 0201/08 02/01/08 CAM 02/01/08 02101/08 02/01/08 RET 0201/08 02/01/08 02/01/08 INS 03/01/08 03/01/08 03/01/08 BASE 03/01/08 03/01/08 03/01/08 CAM 03,01/08 03/01/08 03/01/08 SET 03/01/08 03/01/08 03/01/08 INS 03/31/08 03/31/08 03/31/08 CAMP 03/31/08 03/31/08 03/31/08 INSP 04/01/08 04/01/08 04/01/08 BASE 04/01/08 04MI108 04/01/08 CAM 0401/08 04/01/08 04/01/08 RET 0401/08 0401/08 001/08 INS 05/01/08 05/01/08 05/01/08 BASE 05/01/08 05/01/08 05/01108 CAM 05/01/08 05/01/08 05/01/08 RET 05/01/08 05/0W8 05/01/08 INS 06/01/08 06,01/08 06/01/08 BASE 06/01108 06/01/08 06/01/08 CAM D6/01/08 06/01/08 06/01/08 RET 06/01/08 06/01/08 06/01/08 INS 07101/08 07/01/08 07/01/08 BASE Unit: A05 [.ww 00676314 Damp4on Balance F.mard BASE RENT BASE RENT -9 DAYS AUGUST 07 CAM CAM - 9 DAYS AUGUST 07 INSURANCE INSURANCE - 9 DAYS AUG 2007 REAL ESTATE TAX REAL. ESTATE TAX - 9 DAYS AUG BASERENT CAM INSURANCE REAL ESTATE TAX Electric 07/05/07-0S/03/07 G. 07/07/074,5/08107 Electric wage 8/3 to 9/5 G. uses, 9/61. 9/11 BASE RENT CAM INSURANCE REAL ESTATE TAX BASERENT CAM INSURANCE REAL ESTATE TAX REAL ESTATE TAX REC PRIOR YEAR BASERENT CAM REAL ESTATE TAX INSURANCE BASE RENT CAM REAL ESTATE TAX INSURANCE BASE RENT CAM REAL ESTATE TAX INSURANCE CAM SEC PRIOR YEAR INSURANCE SEC PRIOR YEAR BASE RENT CAM REAL ESTATE TAX INSURANCE BASE RENT CAM REAL ESTATE TAX INSURANCE BASE RENT CAM REAL ESTATE TAX INSURANCE BASE RENT Tenant Reconciliation Charles 5,500.00 1,596.77 416.67 120.97 41.67 12.10 333.33 %.77 5,500.00 416.67 41.67 333.33 28.63 14.00 140.21 14.00 5,500.00 416.67 41.67 333.33 5,500.00 416.67 41.67 333.33 (568.41) 5,500.00 45833 236.67 53.33 5,500.00 45833 236.67 53.33 5500.00 458.33 236.67 5333 (142.91) 50.76 5,500.00 458.33 236.67 53.33 5,500.00 458.33 236.67 53.33 5,500.00 45833 236.67 53.33 5.500.00 Payments (5,500.00) (1,596.77) (416.67) (120.97) (41.67) (12.10) (333.33) (96.77) (5,500.00) (416.67) (41.67) (333.33) (28.63) (14.00) (140.21) (14.00) (5500.00) (416167) (41.67) (333.33) (5,500.00) (416.67) (41.67) (333.33) 568.41 (5,500.00) (458.33) (236.67) (53.33) (5,500.00) (45833) (236.67) (53.33) (5.500.00) (45833) (236.67) (53.33) 142.91 (50.76) (5,500.00) (458.33) (236.67) (53.33) (5.500.00) . (458.33) (236.67) (53.33) (5,500.00) (458.33) (236.67) (53.33) (2,375.83) Bolaxe 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0m 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 OAD 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 3,124.17 Check Number 1019 1021 1021 1021 1021 1021 1021 1021 1021 1021 1021 1021 1021 1021 1027 1D27 1021 1021 1021 1021 1027 1027 1027 1027 1049 1040 1040 1040 1040 1049 1049 1049 1049 1058 1058 1058 1058 1077 1077 1065 1065 1065 1065 1077 1077 1077 1077 1086 1086 1086 1086 1090 Prymeat Date Applied As 05/04/07 11/02"07 11/02/07 11/0207 11/07107 11/07107 11/02/07 I1/0207 11/07/07 11/02/07 11/0207 11/07107 11102/07 l l/07107 1129/07 1129/07 11/0207 11/02/07 11/0207 11/02/07 11/29/07 11/29/07 1129/07 1129/07 0128/08 01102,08 01/02/08 01/02/08 01/0208 0128/08 0128/08 01/28/08 01/2x/08 03/03/08 03/03/08 03/03/08 03/03/08 05/01/08 05/01/08 03/31/08 03/31/08 03/31/08 03/31/08 05/01/08 05/01/08 05/01/08 05/01/08 06/03/08 06/03/08 06/03/08 06/03/08 07/07/08 Tenant Reconciliation R55155001 REG0001 07/01/08 07/01/08 07/01/08 CAM CAM 458.33 (458.33) 07/01108 07/01/08 07/01/08 RET REAL ESTATE TAX 236.67 (236.67) 07/01/08 07/01/08 07/01/08 INS INSURANCE 53.33 (53.33) 08/01/08 08/01/08 08/01/08 BASE BASERENT 5.500.00 O"t/08 08/01/08 08/01/08 CAM CAM 458.33 0801/08 08/01/08 O"t/08 REr REAL ESTATE TAX 236.67 08/01/08 08/01/08 08/01/08 INS INSURANCE 53.33 08/12/08 08112'08 08112/08 LATE Lm Fee. 312.42 09/0008 09/01/08 09/01/08 BASE BASS RENT 5,665.00 09/01/08 09/01/08 09/01100 CAM CAM 458.33 09/01/08 09/01108 09/01/08 BET REAL ESTATE TAX 236.67 09/01/08 09/01/08 09/01/08 INS INSURANCE 5333 09/1208 09/1208 09/1208 LATE We Fee. 320.67 10/01/08 10/01/08 10/01/08 BASE BASERENT 5,665.00 10/01/08 10/01/08 10/01/08 CAM CAM 458.33 10/01/08 10/01/08 10/01/08 BET REAL ESTATE TAX 236.67 10/01/08 10/01/08 10/01/08 INS INSURANCE 53.33 00763 Silver Spring Squme Unit: I.- GL Date Inv Date Dne Date Bin CA D-=7pd- Ch-go Payment. Ol/01/06 30/01/08 Bdnce Fmward ACCOUNT SUMMARY Balance Forward Current 1-30 6,413.33 6,734.00 Balance Prior To Plus Charges From Less Payments / Credits From 31-60 6,560.75 91 - 120 Over 120 3,124.17 Date - 09/. Tenant Number 5980" Page - 2 0.00 1090 07/07/08 (4 0.00 1090 07/07/08 (2 0.00 1090 07/07/08 5,500.00 458.33 236.67 53.33 312.42 5,665.00 458.33 236.67 53.33 320.67 5,665.00 458.33 236.67 53.33 BeMnm Cheek N®bw Payment Dam Applied An 0.00 01/01/06 0.00 01/01/06 89,975.96 01/01/06 (67,143.71) AMOUNT DUE: 22,832.25 61-90 w. M Hollywood Tans D iscounted Value Calculations Federal Reserve Bank Discount Rate 2.00% Lease Discount Rate 3.00% Discounted to October 1, 2008 Negative Additional Total Discounted Discounted Month Date Rent Due Rent Rent Rent Value Discount Value Past Due Rent 22,832.25 14 October 1, 2008 5,665.00 748.33 6,413.33 - 6,413.33 15 November 1, 2008 5,665.00 748.33 6,413.33 ($6,397.34) 15.99 6,397.34 16 December 1, 2008 5,665.00 748.33 6,413.33 ($6,381.38) 31.95 6,381.38 17 January 1, 2009 5,665.00 748.33 6,413.33 $6,365.47) 47.86 6,365.47 18 February 1, 2009 5,665.00 748.33 6,413.33 $6,349.60) 63.73 6,349.60 19 March 1, 2009 5,665.00 748.33 6,413.33 ($6,333.76) 79.57 6,333.76 20 April 1, 2009 5,665.00 748.33 6,413.33 ($6,317.97 95.36 6,317.97 21 May 1, 2009 5,665.00 748.33 6,413.33 ($6,302.21) 111.12 6,302.21 22 June 1, 2009 5,665.00 748.33 6,413.33 ($6,286.49) 126.84 6,286.49 23 Jul 1, 2009 5,665.00 748.33 6,413.33 ($6,270.82 142.51 6,270.82 24 August 1, 2009 5,665.00 748.33 6,413.33 ($6,255.18) 158.15 6,255.18 25 September 1, 2009 5,835.00 748.33 6,583.33 ($6,404.97) 178.36 6,404.97 26 October 1, 2009 5,835.00 748.33 6,583.33 ($6,389.00) 194.33 6,389.00 27 November 1, 2009 5,835.00 748.33 6,583.33 $6,373.07) 210.26 6,373.07 28 December 1, 2009 5,835.00 748.33 6,583.33 ($6,357.18) 226.15 6,357.18 29 January 1, 2010 5,835.00 748.33 6,583.33 ($6,341.32 242.01 6,341.32 30 February 1, 2010 5,835.00 748.33 6,583.33 ($6,325.51) 257.82 6,325.51 31 March 1, 2010 5,835.00 748.33 6,583.33 ($6,309.74) 273.59 6,309.74 32 hl 1, 2010 5,835.00 748.33 6,583.33 ($6,294.00 289.33 6,294.00 33 May 1, 2010 5,835.00 748.33 6,583.33 ($6,278.30) 305.03 6,278.30 34 June 1, 2010 5,835.00 748.33 6,583.33 $6,262.65) 320.68 6,262.65 35 Jul 1, 2010 5,835.00 748.33 6,583.33 ($6,247.03 336.30 6,247.03 36 August 1, 2010 5,835.00 ,748.33 6,583.33 $6,231.45) 351.88 6,231.45 37 September 1, 2010 6,010.00 748.33 6,758.33 ($6,381.15) 377.18 6,381.15 38 October 1, 2010 6,010.00, , • 748.33 6,758.33 ($6,365.23) 393.10 6,365.23 39 November 1, 2010 6,010.00 748.33 6,758.33 ($6,349.36) 408.97 6,349.36 40 December 1, 2010 6,010.00 748.33 6,758.33 ($6,333.52) 424.81 6,333.52 41 January 1, 2011 6,010.00 748.33 6,758.33 ($6,317.73) 440.60 6,317.73 42 February 1, 2011 6,010.00 748.33 6,758.33 ($6,301.98 456.35 6,301.98 43 March 1, 2011 6,010.00 748.33 6,758.33 ($6,286.26) 472.07 6,286.26 44 hl 1, 2011 6,010.00 748.33 6,758.33 ($6,270.58 487.75 6,270.58 45 May 1, 2011 6,010.00 748.33 6,758.33 ($6,254.95) 503.38 6,254.95 46 June 1, 2011 6,010.00 748.33 6,758.33 ($6,239.35) 518.98 6,239.35 47 Jul 1, 2011 6,010.00 748.33 6,758.33 ($6,223.79) 534.54 6,223.79 48 August 1, 2011 6,010.00 748.33 6,758.33 ($6,208.27) 550.06 6,208.27 49 September 1, 2011 6,190.00 748.33 6,938.33 ($6,357.72) 580.61 6,357.72 50 October 1, 2011 6,190.00 748.33 6,938.33 ($6,341.87) 596.46 6,341.87 51 November 1, 2011 6,190.00 748.33 6,938.33 $6,326.05) 612.28 6,326.05 52 December 1, 2011 6,190.00 748.33 6,938.33 ($6,310.28) 628.05 6,310.28 53 January 1, 2012 6,190.00 748.33 6,938.33 $6,294.54) 643.79 6,294.54 54 February 1, 2012 6,190.00 748.33 6,938.33 ($6,278.84) 659.49 6,278.84 55 March 1, 2012 6,190.00 748.33 6,938.33 ($6,263.19) 675.14 6,263.19 56 April 1, 2012 6,190.00 748.33 6,938.33 ($6,247.57) 690.76 6,247.57 57 May 1, 2012 6,190.00 748.33 6,938.33 $6,231.99) 706.34 6,231.99 58 June 1, 2012 6,190.00 748.33 6,938.33 ($6,216.45) 721.88 6,216.45 59 Jul 1, 2012 6,190.00 748.33 6,938.33 ($6,200.94) 737.39 6,200.94 60 August 1, 2012 6,190.00 748.33 6,938.33 ($6,185.48) 752.85 6,185.48 Total Discounted Values $ 319,107.10 (ZI Ul ? ? c -r- G? N c? c-? C.0 ?qq ?i z ,4? P--Z? A PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 Attorney for Plaintiff The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SILVER SPRING SQUARE II, L.P. NO. 08-5905 Plaintiff VS. HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC Defendants AFFIDAVIT OF SERVICE OF COMPLAINT DENIS M. DUNN, ESQUIRE, being duly sworn according to law, deposes and says that a true and correct copy of Plaintiffs' Complaint was served upon Defendants by mailing a copy of the same, certified mail, return receipt requested and postage prepaid, addressed to each of those defendants as follows: HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC 11 Enterprise Court Sewell, 0 e d The signed return receipt, showing delivery on obe 77%atlach homaof. NOTARIAL SEAL J001 A MANNING, iB0f0" Dom DENIS M. DUNN, ESQUIRE ConwniWon12 Attorney for Plaintiff Sworn to and subscribed befQ? a this / " `d iy (7 , 2008. Notary Public' U 1 w ¦ Complete items 1, 2, and 3. Also complete A. S' nature item 4 if Restricted Delivery is desired. X ¦ Print your name and address on the reverse I - ?0) i so that we can return the card to you. g ece' (pdnted ¦ Attach this card to the back of the mailpiece, 5? ?t or on the front if space permits. D. Is delivery address MIT 1. Article Addressed to: If YES, enter delivery -HT Systems, LLC Hollywood Tanning Systems, Inc Tan Holdings, LLC *11 Enterprise Court Sewell, NJ 08080 3. ServiceT ? Cerl?ed-Mali ? Registered ? Insured Mail 4. Restricted Fiafi+rl Agent ? Addressee C. Dat of Delivery 1. i Yes K No tjjWW-O',F4e&eIpt for Merchandire4k° c.o.b. hWxtra Fee) Yes 2. Article Number 7006 2760 0002 7086 1198 (rmnsfer from service label) PS Form 3811, February 2004 Domestic RatMTX1111000it 2595-02-M-1540 ('3 '"`' ca .? =?; r?,».T ? ? ;'k,..1 L,.3 ?' Y.,, s' ?.. VY? .,' "'^y J fi'^ k N i ? CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile Attorneys for Defendant, HT Systems, LLC SILVER SPRING SQUARE II, L.P. : COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PA VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants : CIVIL ACTION NO. 08-5905 PRELIMINARY OBJECTIONS OF DEFENDANT TAN HOLDINGS. LLC Defendant, Tan Holdings, LLC ("Tan Holdings") preliminarily objects to the Complaint for Money Judgment of Silver Spring Square II, L.P. ("Silver Spring") as follows: Introduction 1. Silver Spring filed the above-captioned matter on or about October 8, 2008, alleging a breach of a lease agreement entered into by Hollywood Tanning Systems, Inc., an assignment agreement entered into by HT Systems, LLC and an Absolute Unconditional Guaranty Agreement ("Guaranty") of the lease and assignment executed by Tan Holdings on or about June 22, 2007. (Complaint, Paragraphs 6-9). 2. The only alleged responsibility or liability that Tan Holdings has is pursuant to that Guaranty; no other allegations in the Complaint relate to Tan Holdings other than those that arise from that Guaranty. 3. The Guaranty, attached as Exhibit C to the Complaint, provides at Paragraph 1 I as follows: THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AND LANDLORD JOINTLY AND SEVERALLY AGREE TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF FLORIDA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO THIS GUARANTY. 4. The claim of Silver Spring in this instant lawsuit against Tan Holdings is a dispute which is "arising or relating to this Guaranty." 5. Therefore, the Plaintiff in this case, Silver Spring, and Defendant Tan Holdings have already agreed that Florida courts have exclusive jurisdiction over this dispute. Preliminary Obiections 1. Pursuant to Rule 1028(a)(1) 6. By the language of the Guaranty, the parties have agreed that jurisdiction over the subject matter of this action is in the courts of the State of Florida. 7. This Honorable Court, located in the State of Pennsylvania, therefore, does not have jurisdiction over the subject matter of this action. II. Pursuant to Rule 1028(a)(6) 8. The parties have previously agreed to an alternative dispute resolution, that is, resolution within the State of Florida. 9. Because the parties have agreed to resolution within the State of Florida, it has agreed to an alternative dispute resolution rather than in Pennsylvania. WHEREFORE, because Silver Spring Square II, L.P. and Tan Holdings, LLC have agreed to the exclusive jurisdiction of courts located in the State of Florida for the dispute alleged in the Complaint herein, his honorable Court is hereby requested to dismiss the Complaint of Silver Spring Square II, L.P. against Tan Holdings, LLC without prejudice. CHERNOW KATZ, LLC Date: November 26, 2008 By: Steven Kapustin Attorneys for Tan Holdings, LLC CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P. Plaintiff Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants : CIVIL ACTION NO. 08-5905 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Preliminary Objections of Defendant Tan Holdings, LLC was served upon the persons stated below, on the date stated below, and at the addresses stated below, by first class mail, postage prepaid: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive MediaiPA 19063 I n Ka ustin, Esquire Dated: November 2J.,o, 2008 e_; _.., .. r.?, .?:? - r -; {` J S ..?., -- ??? ??.? '{ C,.' CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P Plaintiff VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 08-5905 ANSWER OF HT SYSTEMS. LLC TO THE COMPLAINT FOR MONEY JUDGMENT 1. Admitted. 2. Admitted. 3. Admitted in part, denied in part. Admitted that Hollywood Tanning Systems, Inc. is a New Jersey corporation. Denied that its business address is as indicated in the caption of the Complaint. 4. Admitted. 5. Admitted. 6. Denied. The allegations of this paragraph refer to a document which speaks for itself. 7. Denied. The allegations of this paragraph refer to a document which speaks for itself. 8. Denied. The allegations of this paragraph refer to a document which speaks for itself. I 9. The allegations of this paragraph relate to a non-answering defendant. In addition, the allegations of this paragraph are denied in that the allegations refer to a document which speaks for itself. 10. Denied. Defendant Hollywood Tanning Systems, Inc. subleased the Property to D&C Tanning Company by Sublease Agreement dated March 22, 2007, wherein that entity agreed to be bound by the terms and conditions of the Lease. (Copy of Sublease attached as Exhibit A.) 11. Denied. Answering defendant has abandoned the Property in that this Defendant was never in the Property. 12. Denied. The allegations of this paragraph contain legal conclusions to which no response is necessary. It is admitted, however, that Exhibit D so states that the "amount due" is $22,832.25. 13. Denied. The allegations of this paragraph refer to a document which speaks for itself. 14. Denied. The allegations of this paragraph contain legal conclusions to which no response is required. 15. Denied. The allegations of this paragraph refer to a document which speaks for itself. In addition, answering defendant, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of the averment that Plaintiff has incurred $4,000.00 in costs and fees. Affirmative Defenses 1. The Complaint fails to state a claim upon which relief can be granted. 2. Plaintiff has failed to mitigate its damages. 2 3. Plaintiff has already re-entered the Property and taken control of it. 4. The subtenant, D&C Tanning Company, is responsible for all payments under the Lease. WHEREFORE, Defendant, HT Systems, LLC, requests the Court to enter judgment in its favor and against the Plaintiff, Silver Springs Square II, L.P., plus attorneys' fees, interest and costs. CHERNOW KATZ, LLC Date: December , 2008 By. ?. teven Kapustin 3 EXHIBIT A HOLLYWOOD TANNING SYSTEMS, INC. SUBLEASE AGREEMENT S. SUBLEASE AGREEMENT is made and entered into this day of V ? k-- , 20]q by and between Hollywood Tanning Systems Inc., a New Jersey based corporation with its principal business address of 11 Enterprise Court, Sewell, NJ, 08080, (hereinafter referred to as "Overtenant") and D&C Tanning Corp. (hereinafter referred to as "Undertenant"). NOW, THEREFORE, in consideration of the promises and conditions set forth herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows: 1. Over-Lease: A. Landlord: Silver Spring Square H, LP Address for notices: c/o Regency Centers Corp., 121 West Forsyth St., Suite 200, Jacksonville, FL 32202, Attn. Lease Administrator. Copies to those listed in section 1.1(t) of over lease. B. Tenant: Hollywood Tanning Systems, Inc. Address for notices: 11 Enterprise Court, Sewell, NJ 08080 C. Date of Over-Lease: As date on Over-Lease. D. Original Term of Over-Lease: 5 years plus (1) 5-year options from date Landlord delivers premises to Overtenant and lease commences. A copy of the Over-Lease is attached hereto. 2. Sublease Term: 5 years and 0 months and (1)option period to renew of 5 years. Beginning from date the Overtenant delivers premises to the Undertenant and Over-lease commences. 3. Leased Premises: 6416 Carlisle Pike, Suite 700, Mechanicsburg, PA 17050 4. Permitted Use of Premises: The premises may be used for Tanning Salon and sale of related products and must trade as Hollywood Tans only. 5. Rent: The initial yearly rent is $66,000.00 plus CAM & taxes & insurance. You, the Undertenant, will pay this yearly rent to the Overtenant or directly to the Landlord in twelve equal monthly payments of $5 500.00 plus CAM & taxes & insurance. Payments shall be paid in advance on the first day of each month by the Undertenant directly to the Landlord during the Term. Undertenant is responsible for all rent increases. 6. Security: The security for the Undertenant's performance is $ 0.00. Overtenant acknowledges that Overtenant has received the security. Overtenant shall hold the security in accordance with Paragraph of the Over-Lease. 7. Agreement to Lease and Rent: Overtenant sublets the premises to you, the Undertenant, for the Term, and Overtenant represents that it has the authority to do so. You, the Undertenant, agree to pay the Rent and other charges as required in this Sublease. You, the Undertenant, agree to do adhere to the terms and conditions of this Sublease. 8. Notices: All notices in the Sublease shall be sent by certified mail, "return receipt requested" and sent to the following addresses: If to the Overtenant: Hollywood Tanning Systems, Inc. 11 Enterprise Court Sewell, NJ 08080 If to the Undertanant: D&C Tanning Corp. 8 Karens Court Woolwich Twp., NJ 08085 9. Subject to: The Sublease is subject to the terms and conditions of the Over-Lease. It is also subject to any agreement to which the Over-Lease is subject. You, the Undertenant, acknowledge that you have read the terms of the Over-Lease and agree to be bound by the terms and conditions of the Over- Lease. 10. Overtenant's Duties: The Over-Lease describes the Landlord's duties. The Overtenant is not obligated to perform the Landlord's duties. If the Landlord fails to perform, you, the Underteneant, must send the Overtenant written notice. Upon receipt of the notice, the Overtenant shall then promptly notify the Landlord and make demand upon the Landlord. 11. Consent: If the Landlord's consent to the Sublease is required, this consent must be received within 90 days from the date of this Sublease. If the Landlord's consent is not received within this time, the Sublease will be void. In such event all parties are automatically released from this Sublease and all payments shall be refunded to you, the Undertenant. 12. Adopting the Over-Lease and Exceptions: The provisions of the Over- Lease are incorporated into this Sublease. All the provisions of the Over-Lease applying to the Overtenant are binding on you, the Undertenant, except for the following: a. These numbered paragraphs of the Over-Lease shall not apply: b. These numbered paragraphs of the Over-Lease are changed as follows: 13. No Authority: You, the Undertenant, have no authority to make any agreement with the Landlord concerning the premises or the Over-Lease without written approval of the Overtenant. 14. Successors. Unless otherwise stated, the Sublease is binding on all parties who lawfully succeed to the rights or take the place of the Overtenant or you, the Undertenant. Examples are an assign, heir, or a legal representative such as an executor of your will or administrator of your estate. 15. Changes: This sublease can be changed only by an agreement in writing signed by the parties to the Sublease. 16. Early Termination: This sublease shall automatically terminate should your Franchise Agreement expire, not be renewed or otherwise be terminated. 17. Prior Sublease. All prior subleases are revoked and this sublease supersedes any and all previously executed subleases. INTENDING TO BE LEGALLY BOUND, the parties hereto execute this Agreement on the date above stated. OVERTENANT: HOLLYWOOD TANNING SYSTEMS, INC. By: Signature RALPH VENUTO JR. Name: PRESIDENT Title: UNDERTENANT: D T g Corp. By: A4 a,?1 Signature Name: 0jwA6-Pvw- Title: IZ&S f M b r VERIFICATION I, Lewis Spender, hereby certify that: a I .am the President of HT Systems, LLC, a Defendant in the foregoing action; a I am authorized to execute this Verification on its behalf, and the facts set forth in the foregoing Answer are true and correct to the best of my knowledge, information and belief. I acknowledge that I am subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: Z mW /J? - YL--- Le*s 'hend r, President 5 c-.s C) co t i PIZ CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P. Plaintiff VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : CIVIL ACTION NO. 08-5905 ENTRY OF APPEARANCE OF CHERNOW KATZ, LLC BY STEVEN KAPUSTIN ON BEHALF OF DEFENDANT. HT SYSTEMS. LLC TO THE PROTHONOTARY: Kindly enter the appearance of the undersigned, Chernow Katz, LLC by Steven Kapustin on behalf of Defendant, HT Systems, LLC, in the above-captioned matter. CHERNOW KATZ, LLC Steven Kapustin 10 CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P. Plaintiff Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants : CIVIL ACTION NO. 08-5905 CERTIFICATE OF SERVICE I hereby certify that a copy of the Entry of Appearance of Chernow Katz, LLC by Steven Kapustin On Behalf of Defendant, HT Systems, LLC, in the above-captioned matter has been served on this date upon the following via first class mail, postage prepaid: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 Date: December 2008 J Steven Kapustin °x? -?.' - ? ,, ? =-l?z r' ?} ?? f?+3 ?? ??"?,?„ --'"r?_ a CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P. Plaintiff VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants vs. D&C TANNING COMPANY 8 Karens Court Woolwich Township, NJ 08085 Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA : CIVIL ACTION NO. 08-5905 DEFENDANT. HT SYSTEMS. LLC. JOINDER COMPLAINT AGAINST D&C TANNING COMPANY Defendant, HT Systems, LLC, by and through its attorneys, hereby files this Joinder Complaint against D&C Tanning Company. 1. The Parties 1. Hollywood Tanning Systems, Inc. ("Hollywood Tanning") entered into a 60-month lease (the "Lease") for a property located at Silver Springs Square, 6416 Carlyle Pike, Suite 700, a/k/a Space H-5, Silver Spring Township, Cumberland County, Pennsylvania (the "Property") on or about March 16, 2007, with the Plaintiff, Silver Spring Square II, L.P. ("Silver Spring"). 2. On or about June 22, 2007, Hollywood Tanning assigned the Lease to the Property to HT Systems, LLC ("HT Systems"). 1 I I - -1 3. D&C Tanning Company, a New Jersey corporation, ("D&C") with its principal place of business at 8 Karens Court, Woolwich Township, New Jersey 08085, leased that Property from Hollywood Tanning by Sublease agreement dated March 22, 2007 ("Sublease"), copy attached hereto as Exhibit A and is incorporated herein by reference. II. Background 4. Pursuant to the Sublease, D&C agreed at paragraph 6 to pay yearly rent of $66,000.00 plus CAM and taxes and insurance, and further to be responsible for all rent increases. 5. At paragraph 9 of the Sublease, D&C agreed to be bound by the terms and conditions of the Lease. 6. At paragraph 7 of the Sublease, D&C agreed to pay the rent and other charges for the Property. III. Underlying Complaint 7. On or about October 8, 2008, Silver Spring filed a Complaint against HT Systems, Hollywood Tanning and Tan Holdings, LLC, for damages that resulted as a breach of the Lease, copy attached hereto as Exhibit B. 8. Plaintiff contends in the underlying Complaint, inter alia, that the Defendants have breached the Lease and also the assignment agreement between Hollywood Tanning and HT Systems, as well as a guaranty agreement entered into by Defendant, Tan Holdings, LLC. Count I 9. All paragraphs above are incorporated hereby by reference. 2 10. Pursuant to the Sublease, D&C was required to perform all the obligations, covenants and agreements that the Defendants were required to perform under the Lease, assignment and/or guaranty. 11. D&C has breached the Sublease and has caused Plaintiff's damages. 12. If the allegations in Plaintiff's Complaint are proven at trial, which are denied, then these Defendants assert that D&C is alone liable to the Plaintiff or liable to the Defendants or jointly or severally liable to Defendants for contribution and/or indemnification. WHEREFORE, Defendant, HT Systems, LLC, requests the Court to enter judgment in its favor and against D&C Tanning Company in the amount of $323,107.10, together with any reasonable attorneys' fees and costs that may be incurred in prosecuting this action. Date: December' , 2008 CHERNOW KATZ, LLC By:_ Stl ven Kapustin 3 EXHIBIT A _J HOLLYWOOD TANNING SYSTEMS, INC. SUBLEASE AGREEMENT EASE AGREEMENT is made and entered into this day of 7" 2011 by and between Hollywood Tanning Systems Inc., a New Jersey based corporation with its principal business address of 11 Enterprise Court, Sewell, NJ, 08080, (hereinafter referred to as "Overtenant") and D&C Tanning Corp. (hereinafter referred to as "Undertenant"). NOW, THEREFORE, in consideration of the promises and conditions set forth herein, the sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows: 1. Over-Lease: A. Landlord: Silver Spring Square II, LP Address for notices: c/o Regency Centers Corp., 121 West Forsyth St., Suite 200, Jacksonville, FL 32202, Attn. Lease Administrator. Copies to those listed in section 1.1(t) of over lease. B. Tenant: Hollywood Tanning Systems, Inc. Address for notices: 11 Enterprise Court, Sewell, NJ 08080 C. Date of Over-Lease: As date on Over-Lease. D. Original Term of Over-Lease: 5 years plus (1) 5-year options from date Landlord delivers premises to Overtenant and lease commences. A copy of the Over-Lease is attached hereto. 2. Sublease Term: 5 years and 0 months and (1)option period to renew of 5 years. Beginning from date the Overtenant delivers premises to the Undertenant and Over-lease commences. 3. Leased Premises: 6416 Carlisle Pike, Suite 700, Mechanicsburg, PA 17050 4. Permitted Use of Premises: The premises may be used for Tanning Salon and sale of related products and must trade as Hollywood Tans only. A 5. Rent: The initial yearly rent is $66,000.00 plus CAM & taxes & insurance. You, the Undertenant, will pay this yearly rent to the Overtenant or directly to the Landlord in twelve equal monthly payments of $5500.00 plus CAM & taxes & insurance. Payments shall be paid in advance on the first day of each month by the Undertenant directly to the Landlord during the Term. Undertenant is responsible for all rent increases. 6. Security: The security for the Undertenant's performance is $____Q.00. Overtenant acknowledges that Overtenant has received the security. Overtenant shall hold the security in accordance with Paragraph of the Over-Lease. 7. Agreement to Lease and Rent: Overtenant sublets the premises to you, the Undertenant, for the Term, and Overtenant represents that it has the authority to do so. You, the Undertenant, agree to pay the Rent and other charges as required in this Sublease. You, the Undertenant, agree to do adhere to the terms and conditions of this Sublease. 8. Notices: All notices in the Sublease shall be sent by certified mail, "return receipt requested" and sent to the following addresses: If to the Overtenant: Hollywood Tanning Systems, Inc. 11 Enterprise Court Sewell, NJ 08080 If to the Undertanant: D&C Tanning Corp. 8 Karens Court Woolwich Twp., NJ 08085 9. Subject to: The Sublease is subject to the terms and conditions of the Over-Lease. It is also subject to any agreement to which the Over-Lease is subject. You, the Undertenant, acknowledge that you have read the terms of the Over-Lease and agree to be bound by the terms and conditions of the Over- Lease. 10. Overtenant's Duties: The Over-Lease describes the Landlord's duties. The Overtenant is not obligated to perform the Landlord's duties. If the Landlord fails to perform, you, the Underteneant, must send the Overtenant written notice. Upon receipt of the notice, the Overtenant shall then promptly notify the Landlord and make demand upon the Landlord. 11. Consent: If the Landlord's consent to the Sublease is required, this consent must be received within 90 days from the date of this Sublease. If the Landlord's consent is not received within this time, the Sublease will be void. In such event all parties are automatically released from this Sublease and all payments shall be refunded to you, the Undertenant. 12. Adopting the Over-Lease and Exceptions: The provisions of the Over- Lease are incorporated into this Sublease. All the provisions of the Over-Lease applying to the Overtenant are binding on you, the Undertenant, except for the following: a. These numbered paragraphs of the Over-Lease shall not apply: b. These numbered paragraphs of the Over-Lease are changed as follows: 13. No Authority: You, the Undertenant, have no authority to make any agreement with the Landlord concerning the premises or the Over-Lease without written approval of the Overtenant. 14. Successors: Unless otherwise stated, the Sublease is binding on all parties who lawfully succeed to the rights or take the place of the Overtenant or you, the Undertenant. Examples are an assign, heir, or a legal representative such as an executor of your will or administrator of your estate. 15. Changes: This sublease can be changed only by an agreement in writing signed by the parties to the Sublease. 16. Early Termination This sublease shall automatically terminate should your Franchise Agreement expire, not be renewed or otherwise be terminated. 17. Prior Sublease. All prior subleases are revoked and this sublease supersedes any and all previously executed subleases. INTENDING TO BE LEGALLY BOUND, the parties hereto execute this Agreement on the date above stated. OVERTENANT: HOLLYWOOD TANNING SYSTEMS, INC. By: Signature RALPH VENUTO JR. Name' At:f PRESIDENT Title: UNDERTENANT: D T g Corp. By Signature f Name: ttp-D 11ACe-Ptvw- Title: S t f b r EXHIBIT B pr r- N ?908 r , PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 Attorney for Plaintiff THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SILVER SPRING SQUARE II, L.P. NO. 08 _ Sgos' Plaintiff vs. HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC 11 Enterprise Court Sewell, NJ 08080 Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 1-800-990-9108 (717) 249-3166 0 Y PETRIKIN, WELLMAN, DAMICO, BROWN & PETROSA By: Denis M. Dunn, Esquire Attorney I.D. #34583 Attorney for Plaintiff The William Penn Building 109 Chesley Drive Media, PA 19063 (610) 565-2670 THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION SILVER SPRING SQUARE II, L.P. NO. One Independent Drive, Suite 114 ; Jacksonville, FL 32202-5019 Plaintiff vs. HT Systems, LLC Hollywood Tanning Systems, Inc. and Tan Holdings, LLC 11 Enterprise Court Sewell, NJ 08080 Defendants : COMPLAINT FOR MONEY JUDGMENT 1. Plaintiff named above is a Delaware limited partnership. Plaintiff s address is as stated in the caption. 2. Defendant HT Systems, LLC is a Delaware limited liability company with a place of business at the address in the caption. 3. Defendant Hollywood Tanning Systems, Inc. is a New Jersey corporation with its registered place of business at the address in the caption. 4. Defendant Tan Holdings, LLC is a Delaware limited liability company with a place of business at the address in the caption. 0 r 5. Plaintiff is the landlord owner of premises located at Silver Spring Square, 6416 Carlisle Pike, Suite 700, a/k/a Space H-5, Silver Spring Township, Cumberland County, Pennsylvania (the "Property"). 6. On or about March 16, 2007, Defendant Hollywood Tanning Systems, Inc. entered into a 60 month Lease ("Lease") for the Property. A true and correct copy of the original Lease is attached hereto, marked Exhibit "A" and made part hereof. 7. On or about June 22, 2007, Defendant Hollywood Tanning Systems, Inc. assigned the Lease ("Assignment") for the Property to HT Systems, LLC with Plaintiff's consent. A true and correct copy of the original Assignment is attached hereto, marked Exhibit "B" and made part hereof. 8. In the Assignment, HT Systems, LLC, among other things, assumed all of the obligations of the original tenant under the Lease. 9. Also on or about June 22, 2007, Defendant Tan Holdings, LLC executed an Absolute Unconditional Guaranty Agreement ("Guaranty") of the Lease and Assignment. A true and correct copy of the original Guaranty is attached hereto, marked Exhibit "C" and made part hereof. 10. Defendants are and have been in default of the Lease, Assignment and Guaranty for having failed to make payments as and when required under the Lease and for failing to cure the defaults within 10 days after written notice was given. 11. Defendants have abandoned the Property. 2 1 12. The amount currently due and owing and unpaid under the Lease, Assignment and Guaranty is $22,832.25 as shown on the Tenant Reconciliation attached hereto, marked Exhibit "D" and made part hereof. 13. Under Section 18.2 of the Lease, Defendants are obligated for rent accrued until the time of 'the award and the discounted worth of rent from the time of the award until the end of the Lease, calculated in accordance with that section. 14. The total of the rent owed and the discounted value of rent to the end of the Lease, as set forth on the attached Exhibit "E", which is hereby made part hereof, is $319,107.10. 15. In addition, Defendants are obligated under the Lease for Plaintiff's reasonable attorney's fees and costs incurred in prosecuting this action to completion. Plaintiff has incurred counsel fees and costs and will continue to incur such fees and costs, the reasonable amount of which, if Defendants take no steps to defend this acfion, will be approximately $4,000.00. WHEREFORE, Plaintiff demands money judgment in the amount of $323,107.10, together with any additional reasonable attorney's fees and costs as may be incurred in prosecuting this action. PET IN, WELLMAN, DAMICO, ROWN TRO BY: DENIS M. DUNN, ESQUIRE Attorney for Plaintiff 3 VERIFICATION The Undersigned having read the attached pleading verifies that the within pleading is based on information furnished to counsel, which information has been gathered by counsel in the course of this lawsuit. The language of the pleading is that of counsel and not of signer. Signer verifies that he/she has read the within pleading and that it is true and correct to the best of signer's knowledge, information and belief. To the extent that the contents of the pleadings are that of counsel, verifier has relied upon counsel in taking this Verification. This Verification is made subject to the penalties of 18 Pa. C.S. 4904 relating to unswom falsification of authorities. BY DATED: J3"' 0 g SHOPPING CENTER LEASE Between Silver Spring Square II, LP (Landlord) And Hollywood Tanning Systems, Inc. D/B/A Hollywood Tans (Tenant) At Silver Spring Square Dated 02177107°^"/Bi (R R PCEIVCy xUrrZAL MKKN t'EN7'ERc NY - TABLE OF CONTENTS ARTICLE 1. INTRODUCTORY PROVISIONS ....... ...»» ........ ................... ..............................__................. 1 ARTICLE 2. PREMISES ........................... ............................ ............. ....._»..................... . _................ »...... 4 ARTICLE 3. TERM .............................................. ...... ..................... ....... .............. ........ ............... ..... _...... 5 ARTICLE 4, RENT ........ ....................... _.................._..........._............................_........ .........__...............5 ARTICLE 5. TAXES AND ASSESSMENTS ............__.......................... .._.......»»........ .........................._a ARTICLE S. TENANT'S CONDUCT OF BUSINESS .............. ............. » .......... ......»... ........................... a ARTICLE 7. USE OF PREMISES ........ ....................................»»........._....»...._»..._».. _...................».....a ARTICLE S. COMMON AREAS »............»» ..... .............. ...... ....... .......... »__................... _............_.... ....... a ARTICLE 9. HAZARDOUS SUBSTANCES ........................... »......»................»»..»........ ...»......_......8 ARTICLE 10. ALTERATIONS TO PREMISES ...... ..__......... » ..........................»............__. ......».».»10 ARTICLE 11. LIABILITY, INDEMNITY AND INSURANCE.___.... ,.........».._.._......._ ......................10 ARTICLE 12. DESTRUCTION ................. ................ .».»............»........._... »................... _..............._.......12 ARTICLE 13. MAINTENANCE OF PREMISES ..... ....»» ................» ...» ..»..... __.._..___ _».........___13 ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL ................»............. .......__............. »»............ 13 ARTICLE 15. LIENS....... »..__.. ...__»..... »..._......».__ ..» .»»...»... _ »..»._.._....._...»_ ...»_.....14 ARTICLE 16. SIGNAGE » ...................»»..»...._....»»......«»..............._.....-__..........__....._»...................14 ARTICLE 17. ASSIGNMENT AND SUBLETITWG»...».»...» .................. .»....» ......».. ...... 14 ARTICLE 1a. DEFAULTS BY TENANT....»»..»...._.... » ..............» ...........__.....__»_._ ......_..__........... 15 ARTICLE It LIMITATION OF LANDLORD'S LMR17Y .........................._...... ?._ _....»....._......18 ARTICLE 20. SUBORDINATION AND ATTORNMENT....... ._ ................. ...................... ... __.... .......... .18 ARTICLE 21. ESTOPPEL CERTIFICATES ...»...»....» ...............»......»».....».._......._.........__»........».._..19 ARTICLE 22. QUIET ENJOYMENT _....__........... .._.....»._...._ ................................._... ...__............»,_»19 ARTICLE 23. SURRENDER AND HOLDING OVER._...»........»».»»....» ......._ ...... .....................__18 ARTICLE 24. CONDEMNATION...._ .......................»........_........................_».....».._. _. ..._..._--.._._.._20 ARTICLE 26 MISCELWiEOUS...» ._.»._...__....___......... ......... ....... ................. ..... ARTICLE 26. LANDLORD'S RIGHT TO RELOCATE PREMISES »_»....._»... _ .»».....».» . » . »..23 /'ARTICLE 27 RADIUS RE SIRICTfON . . .». .....»»......»»»»....»_...... »»... .»..» .........»..»»........Z3 ARTICLE U. EXCLUSiYE ......»»........» ... ».._»».». .......»........»»»........»..».....»_ ..................».....24 ARTICLE 29. OPTION TO EXTEND .......... .,_......... . _....»».... ......»..»..» »»..... »_ ......... _».. ».?1 ARTICLE 30. LIMIT ON COMMON AREA COSTS FOR DEVELOPMENT .............».... .. »........»_ ._..25 ARTICLE 31. LANDLORD'S SUBORDINATION OF LIEN »»..»...»_.......»»».».»».. ._..»» ..................25 ARTICLE 32. LANDLORD'S LIEN ............. .»_........» .................»......_....._....._...».._».. .................._._ 25 ARTICLE 33. AUDIT RIGHT PROVISION ...... ............................ _...._ ._.»....._»..».... ».._..»..........»....25 ARTICLE 34. TENANTS FINANCIAL STATEMENTS .._.... » ............. ..»........ »...... »...... ...._.»................ 26 € HIBIT »_ _»...»»_»».....»_»....__... »_».......... _......... » ».......» » »?... .... ..».._.,_......»..25 0227 07 JULA01270 0185W ,&, sa rur. w, s C'e?E RS } ? __ fw EXHBR B .................................. .._.......................... ............................. ,...................................... ............. 29 EXHIBIT 8........... .._ ....................................... ................................... ...................................................... 30 ExmfTc ........._.._ .... ........................ ...................... ........ .................... ....................... 31 EXHIBR C-1 .............. ............ _......... __............. .................... ....................... _....... _....... ................. ..33 EXMW C-2_......._ ................................._..........»......................................................................._.......... 34 EXHUNT E....»........._.........„ ............._....................................._......._....... ....35 IBR ........................... .._..................................._....................................... EXHOff? _ ........................ _........................................ ......... ....................................... ._................. _........ 31 02127107 {off{OC !¦¦L+?teg v! 1/f?!+7 XMIAL a>rr?s c SILVER $PFWN ScAjARE 9ARMULLM MAreaA THIS LE1LS2. made as of the day of 20tl$, by and Itdwnn S$var Spirg Square If, LP, a Datargrs knlled parsnm* (hrein paled corpora6m Mersin eahd -Twrrr ? ?rnd Hollywood Tay" Symerns. NC , In Oansidwadon d to a0fiyeliuns of Town 1O pay rant and filer dwges as twain porided and In conk nom d the Oliver tenon, Oowrlnds and oardlia s herad. Landed hereby Isaac b Tenert and Tarry t's"ny lases ha, LandlMd ale pnvnises doserlbsd herein /ar ttvs /ant and SnhJep t0 tta terms Oro CondYan st 1or11 flsrerv. 1.1 FUNDAMENTAL LEASE PROVISIONS. CC artaain hrldannxd p mWo s an presented in rie Seclim in arlrrwy lam to bdllte Oavvertisrd rebratoe by 6n p1Aes herob: (a) TenenTs Trade Nome (b) Tom (O) f Premises Specs IVtrrtber (d) GLA in Pr onIMs (e) (3LA in irdonfs BJld% M TeravCs Propalbnsto Share Hdlywood Tans (Sedan 7.t) sT (®11 morslls (Backer 3.1) 64 a1tt?010dao. PA 17050 (6stlbtt -W - Pan 2) 2.000 spars bet median Is) 466.884 sgnre be (Sacum 1S) TwwnTs plOpalfavalm shrw shell be drllned as tte powwow tol ft grams was COW) tw I'm bean b fm w" gwas bud** of mew of Lanlada IN I I p swept a Iva I N provided. In dMawire 0 T~S Ptepaaaase 81aee of Comoro Area Coale and matilnlon lar Taps atld bxaaarlaa. Larded rear arcMab Mom !tie QLA d ft L&-Awft Bv/drp any pronOws omS* p TAW or mars ogmm bt of eLA M Ina Mm for aath pnltsn don na1 regdrs $» oppicabls snarl b pay spate Ware d Cerween Ana CONS. Taps or Irrsaeo . bd No to aram Larded atoll deduct km 6r Cie mlal Area COM Texas a' " eltafla any smarts pay" by any such terierte s, - for home kmbmdod in 6n C nmm Awe Owns. Tana or buvrrartee.. To- (9) ATnkwrn Arswt flat 411, ntlK birriterlr Rat kb-'- Ue Rant MAIN" Rene Aeor"O (PWf. tt. O1 (Ar^W) 1-12 7$6,50000 13100 $16.000.00 13 - 24 $GA S= "m 117A10.00 25.36 MA3LW 136.01 170AMOO 37 - 46 SMIXOO 831.06 =72,120.00 49 - 60 $6.180.00 137.14 :74,210.00 ply EX1110 ble galas tax (Sec6On 4.2) I M) Peroatape Rert I tang 1 lay L ? rl 1/l?r R MENCY ('NMRS INITIAL Naaat r 0) COrwil.ntan wd Dote I Q) Use (k) r3-br(s) (M rww. so stab) 0) DGWA HOW dAhIjDFV 96 {tiwa? 3 s} The w6w of (1) iiwtY (>f0) clay. It. t"s"ar neat devcalter tw dale d lanAwd'a AMMwy d fw Pr Ilu b T IR E-Id"M 'mo'd r 2- or (n 1M diM on Wild1 TOWN Ow apone for btaalMS in ft Prsaees..(520JQ09.11 Tamky salon and sale d aroalsrv lamirw orod?? ?.... (Ar*b 7) WA The beset d town pwCera (12%) per orwMM or vw n W& I Wn V*M rap d kMsr""t psna0bd by appM ANo law (m) Seaway D.pook WA (n) O a ews gepwa,V Holy Carole std &aadon AnapoL Ma"o Call. al Red Ealele raprasrip L WKIQrd and CaMus L & A npneen*q TsaM (SecMon 25.5) (0) EOW-d Camas Aran Cosa br 2006 S2_W Pw squre 10% pw rsxm (Made a) (1311WW b amlal a1JJu In" (p) F.s$rnsad Taxes for 2006 $2.00 Pw squrm boo per wwwn (Arkb 51 (Subject b aeNal adjrapv" NO FOST"ed kuwranM to 2006 $0.26 Pw agars toot Per araawr (ArYde 11) (Smjsct b anMM aquabwr Q M ACIVOI V and Pmrnab rl Fund (11 norw, so soma) WA (a) Esarneeed Irib1 MaNMy P"m"np Regtbad Addlignol $6,500.00 Conwwn Aa" Cosa 6416.87 Taxsc $333.3 kw once $41.67 AWa/ekgand PM.Ktbl Flow! ($ na s, so WA AW P11a1 Sump" Fes p noes, so afaa) WA Sake Fee (11 t1Orw, so Wn) WA Total Mor" Adcftr PmV $761.67 all" sd Carry Saba Tax WA ToW Mw" Payn" at wo Ll"b $6.2H1.67 M Addaes for Wotloe To Landlord do RIPOWL7 O Corporation 121 W 1rar" Sie 200 Jadotaar0". Florida 52202 A bwdtw : Len" AMdrimbalor M1r11 COPY ta: 121 WONftrw%eb "t SIA" 20D J 1 te 110 0 a ". lg011da 32202 Aberdare Lapel Dq-tnmm Merl a COPY b: at PAWWY C"- Copwasion 150 MOrmanara FWK Sulb 40S 2 '" Ju LH.12S09 v1 k/1 SI07 ?F(iEN('Y rrr CEM'FRS ` Bpls CFwytl PA 19004 Aftril _ Pmpeft Mrrywwg To Twtw% 1Jl?f016>QO ToMbg Sgaumm, lpc_ 959.71&2150 I 02/z7/D, .. n? 3 ?t?03?pG Ju Law mq rl 1/IStll RrC'E" lvlrxAL 12 REFERENCES AND CONFLICTS. References appearing in Section 1.1 are to designate some of the other places in this Lease where additional provisions applicable to the particular Fundamental Lease Provisions appear. Each reference in this Lease to any of the Fundamental Lease Provisions contained in Section 1.1 shall be construed to Incorporate all of the terms provided for under such provisions, and such provisions shall be read in conjunction with all other provisions of this Lease applicable thereto. If there is any conflict between any of the Fundamental Lease Provisions set forth in Section 1.1 and any other provision of this Lease, the latter shall control. 1.3 EXHIBITS. The following drawings and special provisions are attached hereto as exhibits and hereby made a part of this Lease: (a) Ex hbit'A' Legal Descdpdon of the Shopping Center land as presently constituted (b) Exhibit 'B' Part 1 - Site plan of Shopping Center Land: and Part 2 • Leasing Plan. (The Premises is Identified on the Leasing Pion.) (c) Exhbit'C' Description of Tenants Work and Work to be performed by Landlord. H any, in the Premises: and 'C-1' Shopping Center Signage Criteria; and 'C-2' Landord's Work and (d) Exhbit'D' Irhtentbrwily0nhlted (e) Exhibq'E- Requirements S Restrictions (f) Exhibil'F' Tenant Improvements (g) Exhibit -G- Shopping Center Exclusives (h) Exhibit "If Intentionally Omitted (1) Exhibit `I' t 1.4 THE SHOPPING CENTER; LANDLORD'S 9111LDING. The 'ShoppoV Carder' mesno the land descrbed in EW bt'A' and improvements thereon constituting an Integrated retort shopping tenter, as the same may be modified from tine to time tfro #xmt the Term Of Ohm Lease. The sluchre or struchues slwwn on Exhibit *W as 1.arhdoM's &rtdng,' = the some may be offered. reduced or expended from time to time throughout the Tern of this Lease, is hereiaNer called the 'Landlords Bulang' Landlord may at any time and from time to time change the shape. size. location, number, lhoWd and oAwM of to improvemoft In the Shopping Confer and ellminale or add any improvements to any portion of the Shopping Center and add land thereto or eliminate land therefrom- 1.5 GROSS LEASABLE AREA At the Commencement Date. GLA means, with respect to the Preralses, the number of square feet set forth In Section 1.1(d) and, with reaped to the Landlords Building, the number of square feet set forth in Section 1.1(e). GLA wit change with additions or dsMWa to the Landlord's Building andlbr the Premises. The GLA is measured Nom the exterior face of exterior watt, the epderior face of service corridor wets and tithe otrAeAine of Interior dwnisiq waft. No deduction shhal be shade for columns, stairs. elevatiors or any internal construction or equipment. 2.1 LEASE OF PREMRSES. Landlord thereby lases to Tw w*. and Tenent hereby leases from Landlord. Vie Premises for the Term, 81010 rent. and upon the terms, covenants and conditions herein set forth. 2.2 PREMISES DEFWED. The tern 'Premises' means the apace sltiieled in the Landlord's BuldkV in the location marked on Exhhbt Ir and shat consist of the space theresf within the web, structural floor and the bottom of the roof of Landlord's Building. 2.3 DELIVERY OF PREMISES. Landlord agrees to deliver to Tenant, and Tenant agrees to accept from Landlord, possession of the Premises when Landlord advises Team in willing that the Lwxft s work in the Promises (if any) has bon shrMelar+ly compkbA• KA Lardord's notice thereof ehol canstlub delivery of the Prenhieee without further ad by e&w party. Landlord will delver possession of the Premises to Tenant in of A? curennl'8sas' condition with the addition of only two flame of work Of why) desalbed an Exhbit 'C• P t Landlord encounters delays in delveft possession of the promises to Tenard. this Lease wtl not be Edo r 4 ?- 0:/27/0 JU JAMd 2%9x1 inw) x RAGEW, CENTERS 1 . void or voidable, nor wil Landlord be liable to Tenant for any loss or damage resuiling from such delay. L20lgrd_ anticipates dekery Lq bg on or around March 15' 2007 11 the delay in possession is Caused by Tenant (Mchmding delays caused by Tenant's failure to supply the information referred to in the following sentence), than the date of Landlord's delivery of Nro Premises to Tenant shat be deemed to be the date such delivery would have occurred but for Tenant's delay. Exceot. paNdhefandioo anvf no to the termnafe vas Lease upon ttgSisah MOM % to In otar oaAv Notwilbehudrig the foregoing. Landlord will not be obligated so deliver possession of the Premises to Tenant until Landlord has rooslved from Tenant all of the fotowivq (1) a copy of this Lease fully executed by Tanart, and a Quararty. A any, executed by the Guarantor(s): (n) the Security Deposit and the first installment of Minimurn Annual bent; and (ii) copies d policies or cerllNcmtes of insurance as required under Article 11 of tile Lease. N Tenet occupies the Premises prior to the Commencernent Date. such early occupancy shat be aub)ea to at of the farms and conditions of this Lease, and Tenant will not Interfere with Landlord in the oospietion of Landlord's Work (t any). Landlord will give Tenant access for locks to be changed upon: (f) Tenant's acceptance of the Promises, (i) Landlord's receipt of two sets of plans and spedlicasions set forth in Exhibit 'C', and (lit) landlord's receipf of a copy of the contractor's Insurance c orli icate. Tenant will pay at experees associated with changing the locks. 2.4 OPENING OF PREMISES. On or Oarere-mien (10) days alter dahery of possession of the Promises to Toners. Tenant shall commence the Tenants Work spectiod in Exhibit 'C', d0gertty and continually proceed to oompletim. and open for business on or before the Commencement Date specified in Section 1. t(Q. In nsfadon to Tenant's Work, Tenant shell execute the Noticed Cowansnowesd " Owner idan*ft Landlord only as the fee simple titleholder for pugxn s of psrritdW By opening for business, Tw%W shat be downed to have acknowledged that M work (t any) required to be Warned by Landlord in connection with the Promises and any and at other obligators to be performrod by Landlord on or before the opening of the Premises have been hilly performed, and that to Promises are at such time complete and in good, sanitary and satisfactory condition and repair without any obtgston an Lordlov0s part to make any alterations, upgrades or improvements thereto arced for oossitrle hunch liar oven Aems d Law - 3.1 TERM OF Trills LEASE The Team of this Lease shat commence on the Commenoement Date spec fled in Section 1.1(i) and shall continue for the number d months set tort? in Section 1.1(b)• 4.1 TENAM'S ANENT TO PAY RENT. Tenant hereby agrees to pay Minimum Annual Rant, Percentage Rant and Additional Rent The term 'Rent" includes the Mimmhnm Annual Rent. Percentage Rent and Adnxtomaf Rent. 4.2 MNIIMUM REM'. The n* mum amount of rent Tenant shat pay Landlord for each Lesae Year a the amount set bbl in Section 1.1(g) (the 'h**n m Annual Rent'). Minimum Annual Rant for the period from the Commencement Date to the first day of the Korth following such date shut be pronied on a defy baele and abet be Payable with and in addition to the first installment of Mk*nurn Animal Rant. The Wff*mm Annual Rent for each Lease Year (as defined blow) shat be payable in twelve (12) equal monft kotelknenls, in advance, on the first day of each calendar month. The first installment of Rent shat be due on Tenant's execution and delivery of this L.eaee to Landlord. 4.3 LEASE YEAR DEFINED. The 'First Lease Year means the period beginning on to 434mimencernent Date and andng on the feet day of the two ft fart cafsrder month thereafter. 'Lease Year' means each arocessive twelve (12) moth period after to Filet Lease Year occurring during the Tarn. 02/27/09? jj4ji•/ia0ae 4,di,erd 2509 rl L- al Itpoeyc.v. IWITZAL CFf?F? ? 4.5 GROSS SALES. (a) 'Grose Sales' means the actual prices of as goods, wares. internei based sales and mardmntbe sold and the actual charges for all services performed by Tenant or by any subtenant, licersee, concesakware or otwr parson in, at, from. Of arising out Of Ihr use of the Prerrmses, wtw her wholesale or (aim, whetter for cash or credit, or otwwiss, and Includes the value of all oonefdor tton received or Promised for any of the foregoing. witwut reserve or deduction for ifabft or Wm to eossaL including, but not !united to. solos and services: (f) whore the orders tsrdor odghsts in, at, from or Wising out of the use of the Pmnlm, whsMw dsliwry or pwkmwnm Is made from Mw Premises or from $omo alhsr place and regardless of tw place of bookkaepig for, payment of, or cojeclim d any account or (6) made or performed by maul, telephotos, or telsoopy, orders received or filled in. at or from ire Rwr* sa: or (ii) MUM or performed by means of msdw*W and other vending devices in the Premises: or CM vhc h Ternt or any subtenant, licensee. emmewionsiro or otror person: in the nonmed and customary course of its business, ward credit or aWbuts, to its operation at to Premiws or any part Owed . Any deposk not refunded shalt be included in Gross Sales in the month in which such deposit is received. (b) The following shall be excluded from Grow Saiss: (i) any andargs of msrchwx w between stores of Tenant whop such oocher" a made solely for tw convenient operation of TenanCs business and not for the purpose of coi sum matrg a sale made in, at or from the Promises: (9) nature to G ( (111) cash or credit refunds to customers on hanaaolions previously n4xmW as rtmdhirwry and et uipn sM which are not stock in toads, after hale therad in the conduct of TwwnCs halness; and (v) amaxfls which we separately stated and collected from customers and which am paid by TenmW to any govemmoft for any sales or exc ee tax. No handfise, capitd stock tax, tax based upon swats or not worth or gross receipts hex, acrd no iroonw or similar tax based on income or profile shag be deducted from Gross Series. 4.6 TENANT'S RECORDS AND STATEMENTS OF GROSS SALES. (a) The business of Tenet and of any subtermt. licenses, concessimmirs or other person upon Mks Premises shall be operated so tat an accurate and verifiable record of Gross Sales can be 6 02/27/07 lu herd 2504 v1 f/I S/07 R iWERS CEN'(-ERS maintained and reported to landlord. Furthermore. Tenant shall keep at all times during the Term, at the Premises or at a location in the vicinity of the Premises made known to Landlord, full, complete and accurate books of account and records in accordance with generally accepted accounting practices with rasped to all operations of the business conducted in or from the Premises. Including the recording of Dross Sales and the receipt of all merchandise into and the delivery of all mmerchwhrdrsdi a from the Premises during the Tenn. Tenant shelf retain such books and records, copies of all tax reports and tax returns subnthted to taxing authorities, as well as copies of contracts. vouchers. checks, inventory records, dated cash register tapes, and other docxumenls and papers in any way related to the operation of such business for at kraal three (9) years from the end of the period to which they are applicable, or, it any audit is required or if a controversy aboOd arise botwean to parties hereto regarding the Rant payable hereunder, until such audit or controversy Is terminated, even hough such retention period may be after the expiration of the Term or eadier termirhation of this Lease. AN such books and records shelf be open at all reasonable Was during the aforesaid retention period to ilhe inspection of Landlord or its authorized representatives, who shell lheve full and free soonss to such books and n xxM% and the right 10 require of Tenant, its agents and employees such information or explanation with respect b such books and records as may be necessary for a proper examination and audit thereof. (b) The statemerrta provided for in Sections 4Z(a) and (b) shall be accompanied by a certificate signed by Tenant (or, If Tennant is a corporation or lfmtted liability company, by a responsible otfioer of Tenant) slating speclficalfy that Tenant anctbr such person has reed the definition of 'Gross Sales' contained in this Laaae, has ownihad the report for the period in question. and that such report accurately represards the Gross Sales of such period, landlord ahinlf be permitisd b sivtclge to cordertb Of any at the statements povided for in Sections 4.5(a) or (b) or* it such dndosure is made in connection with any fnw ckg iurangenhercla or assignments or other transfers of Landlord's itehrut in the Promises or In connection with array admimkbatM or judical proceedings in which Landlord is kwdved. In the event Tarrant Is delfrquorM In hnNshbW to landlord nong A Gross Sales statemahte for two (2) consecutive morphs, Landlord shelf haw the right to conduct an examination or audit of Tenant's books and records and TUM M agrees to pay the cad treed, together with any dekdendes in Pot artage Rent disclosed thereby. as Additional Rat upon demand, togoll er with entered at the Def eft hats. The more* and omelet statements required by Section 4.5 sNaif be delivered to Landlord at to pMce to which nodose are to be sent to Landlord pursuant to Section 25.3, whether or not any Perommge Dent is due. For the purywes of this Article, the term "neoporsible officer, of Tenant' means the Chief Exearthre Officer or the Chief Financial Officer of Tenart or such other person reasonably acceptable to Landlord. 4.7 ADDITIDNAL AUDIT RIGHTS. The acceptance by Landlord of psynherrs of Percentage Rat shall not prejudice Landlord's right to examine Tenant's books, rrroocds and aocounb in order to vo* the amoud of Gross Sales. Landlord or its repreeontativos shay. as any reasonable time, upon tan (10) days' prior wrillon notion to Team, aaumse a complete or partial audit to be made of Tenant's books, reoords and other documents ?ebding to the Premises (including the books and records of any subterhant, loonves or cornosesionalm) for d or any part of the three (3) year period kmmsdfd* preoedkg the day of Me gtving of such notice by Landlord to Tenant. If such audit dkxdoses lint any of Tenant's mommy or annual statements of Gross Sales understates Gmes Sales made during the reporting period of the statement to the eaMrt of two penoerht (2%) or more. Teriant shall pay to Landlord, as Additional Rant on derhnand. to cost of said s edit in addition to the defioisrcy in percentage Rent, which deficiency shelf be payable in any event, together with interest at the Default Role. 42 ADDITIONAL RENT. Tenant shah pay. as Additional rant (herein sometimes collectively cared 'Additional Rent'), all sums of nmooey or dnarges of wtatrosver naUe (WOW Minimum Annual Rat and Ponveraage Rert) mqueed to be paid by Tenant to Landlord pursuant to this Lease. whether or not the same a designated as 'Addriormat Rena.' 4.9 WHERE AM PAYABLE AND TO WHOM; NO DEDUCTION; LATE MARGE. Rent pay" by Tehad under tile Lease shall be paid to Landlord ono later than tan HO) days after the flat day of each mmrMh vM xxA prior rholice or demand Dherefor (except where such prior dsnhand is etpresly provided for in Mnfa Lease). without any deductions. W oft or counterclaims wh oleoevw. at the place 10 which notmec are to be sent to Landlord or lo such payee and at such pima as may be designated by Landlord to Tenant in writing at laost tan (10) days prior to the nod anaig Minimum Annual Rent ehstallmorit payment date. Tenerd acknowWQ*s that, in addition to ktwes coals, the Mite payments by Tennant to Landlord of any Rent due under this Leave will cause Landlord to incur re, aim not corder, by thlo Lease, fw exact mwW of such coda beirig extremely dWoA sind practical to im IbL Such other ocaft ircdude, wpihwA lmkMkw , processing, admiribbaillve aoomnlirg cavpes and Isle charges tad may be Imposed an L.ardord by the Wm of any mortgage, dead of kuK rotted loon documents or other docamments anorrnbaring or otherwise affecting the Pren oes, Landlord's Building or the Shopping Gaoler. Acoordlrhgly. If any paymara of Rerd or cow charges due hereunder is not received by Landlord In good funds ea witthirh ton (tot days attar its due date. Tares will pay to Landlord a Mb charge of On partial (5%) of the &nxxn duo. The pontes agres liar such Mite charge (as well as any other tie shags undo ids Lease) represente a fair and mawrhsble ahtirmwte Of the costs that Landlord will lour by reason of any late paymers as lwn>inabove taloned to by Tenant, and am payment of left charges and Interest are distext and separate in tat the Payment of iranost Is to campeneate Landlord for the use of Landlord's moray by Tenant. while the psymer of Mite charges is to cortpensate Landlord for landlord's processing, administrative and other moats incurred by Landlord as a 02127/0 1,L-.A ISM VI I113W RM'P INITIAL CF.N?'F.RS _ Tp- result of Tenant's delinquent payments. Acceptance of a late charge or interest sham not constitute a waiver of Tenant's defasit with respect to the overdue amount nor prevent Landlord from exercising any of the other rights and remedies avamable to Landlord under this Lease, at law or in equity. it Tenant tails in two (2) consecutive months to make rental payments within ten (10) days after the due date, Landlord, in order to reduce its admimistrative costs may require, by giving written notice to Tenant (and In addition to the tale charge stated herein, as wet as any other rights and remedies seating pummrht to AAids 18, or any other term, provision or covwwM of this Lease at law or in equity) that Mi+wmum Annual Hart is to be paid quarterly in advance instead of mond* and that all future rental payments are to be made on or before the due date by cash, cashier's check or money order, and that the delivery of Tenant's personal or corporate check will no longer constiMe a payment of Rent as provided in this Lease. 5.1 TENANT'S PROPORTIONATE SHARE OF TAXES AND PAYMENT. Tenant shall pay to landlord, as Additional Rent, Tenants ProporlioneW Share of all real estate taxes, current and future, arid rather ad valorern taxes and assessrnerts of every kind and Tenant 's Proportionate Share of any reasonable costs and expenses (such as real estate tax consultant teas) that are insured by Landlord in a good faith effort to reduce the arawd assessed by the taxing authority provided Landlords efforts result in a tax savings to Tenant with respect to to Shopping Center (Taxse'). In the event any assessmards may be paid in an uel inetslirnents, only the amount of sueh annual instalment and statutory interest shall be iwiuded wWvn the computation of she annual Taxes for the Lease Year in question. Tenant shall pay its Proportionate Share of Taxes at the tunas and in the manner provided in Section 8.6. 5s RENT TAX. Should any governmental taxing authority acting under any present or future law, ordinance or regtriation levy. assess or YnpOSO a tax. excise or assessment (otter tern an moorne or franchise tax) upon or against or measured by the Rent, or any part of it. Tenant chef pay such tax, excise andlor assessment when due or shall on demand reimburse larded for the amount owed, as the case may be. 6.3 PERSONAL PROPERTY TAXES. Tenant shat be isble for, and shall pay before delinquency. MR taxes and assessments (real and personal) levied against (a) any persona! property or bade fixtures placed by Tenant in or about the Premises (inckdirg any increase in the assessed value all ins Premises based upon the value of any such personal property or trade fi ftw), and (b) any Tenant improvements or akerratons in the Promises (whether inelafed andfor paid for by Landlord or Tens!). if any such taxes or asumerneds ant levied against Landlord or Landlord's property, Landlord may, after written noose b Tenant (and under proper Prot if requested by Tenant), very such taxes and asumarnerrts, aid Tenant shelf reimburse Landlord thmefor within tan (10) days alter demand by Lanford; provided, W*-swr. Tennant, at its sole coat and expense, shall have the sight, with Ltutdlohd'a ogoperatM to bring sull in any court of competent jurisdiction to recover ire amount of any such taxes and assessments so paid under protest. &1 HOURS. Tenant agrees eat, from and afar the Commencement Gate, Tenant wilt continuously and uahiteruptedy keep Open and operate fa entire store in the Premises for the purpose specified in Section 1.110 and under to trade none specified in Section 1.1(a) with the pubk dafy during such hours as are pietornary in the Shopping Center. Tahasrt receives the right to extend business hours a mart of romlal bamirhess operations. 7.1 SOLE USE AND TRADE NAVE. Tenant shall use the Promises for ft purpose specified in Section 1.1(i') end for no other purpose whatsoever and sham conduct its business In the Premises solely under the trade name specified in Section 1.1(a). Nod*g in ids tease shah be construed a grant Tenantan each aW Aght to the purpose specified in Section 1.1(() or any other pugxwe or use. Tenant ahem pracm, at Tsranrs sole expense, any permits or liosrmse required for the transuAlon of business in the Premises. 72 REOUFOEmRS AND REffM=KM. Tenant agrses lp oorttpfy V ft Cta Requirements and Restrk1ions set forth on Exhibit 'E' attached hereto. 6.1 NAWMANCE. LwWkwd agrees so maintain, as part d Common Area Coals. the Common Areas indludirg the roof in good condition; pnovWe4 however, that the manner In which the Common Maas sham be mairtained shah be solely determined by Landlord. ff any owner or tenant of any portlon of the Shopping Center maikakhs Common Areas located upon its parcel or premises (Landlord shah have the right, in its sole 1 07/27/0 t ai/ai L. a..r „W9 r! 1aS107 RI';GENCY urrhspu CFNTfiRS 7217 discretion, to allow any purchaser or tenarrt to so maintain Common Areas located upon its pared or premises and to be excluded from partidpabon in the payment of Common Area Costs), Landlord shall not have any responsrbiity for the mmainterance of that portion of the Common Mess and Tenant shall have no claims against Landlord arising out of any failure of such owner or tenant to so maintain its portion of the Common Areas. s 2 COMMON AREAS DEFINED. 'Common Areas' means all areas. Whiles. and improvements provided in the Shopping Center for the convenience and use of patrons of the Shopping Center. and shelf include. but not be irked to, all areas, all parking arses and faadlilies, sidewalks, stairways. service corridors, tnxcrways, ramps, loading dodos, delivery areas, landscaped areas, access and Interior roads, fighting facilities and atmllar areas and facilities situated within the Shopping Center which are not reserved for the exclusive use of any Shopping Canter occupants. 6.3 L.ANDL.OAWS CONTROL Landlord shall at all times have the sole and owkisive control, management and direction of the Common Areas and the tight to make ressoneble changes to the Corrwnan Areas, and may sit any time mdude and restrain any person from use or occupancy thereof. The rigits of Tenant in and to the Comrnon Aron are subject to ft tights of others to tae the same in common with TerwN. Landlord may at any time and from Mme to time close all or any portion of the Common Areas to make repairs, improvements. alterations or charges and, to the extent necessary in the opinion of Landlord, to prevent a dedication Owed or the accrual of any rights to any person or to the public therein. MA EMPLOYEE PARKING. Landknd may from time to time designate a particular parking area or areas to be used by Its tenants and their employees. t Tenant or any of its employees fag to peek their vehicle in any such designated parkbg arras, Landlord. in its sob discretion, may give Tenant noticed such violation and. M the violation Is not corrected within two (2) days after said notice Is given, Terient shall pay b Landlord an amount equal to Ten Dollars (;10.00) per day for each violating vehicle calanlated from and inctudkhg the day an which notice was ghren, to and i citidng the day whim &I vlokdons by Tenant and its employees cease. In no event. however, shall Landlord be required to enlace any padit obligation staled herein. as CO M[ON AREA ODSTS. 'Comitton Area Coats' means all costa incurred in a manner deemed by Landlord b be reasonable and appropriate and for ft treat Interests of the Shopping Center in connecVtiorh with the Himont, operation. maintenance. replacement and repair of Vie Common Areas, including but not kr ited to security, landscepig. ubllides, painting. striping. fighting, management fee four percent (fib) of gross revenues and pest coif Ol among other items. $A TENANTS PROPORTIONATE SHARE OF COMMON AREA COSTS. TAXES AND INSYRANCE. Tenant agrees b pay to Landlord, as Addbonal Rent, Tenant's Proportionate Share of Comm Area Costs. Taxes and lneumnoe (as fiereirie ter defined) in the following manner (a) Tenant anal pay Landlord on the Commencement Date and on the first day of each calendar month of the Term thereafter an amount eatimaled by Landlord to be Tenant`s monthly Proportionate Share of the Common Area Coats, Taxes and fnatranoe. Landlord may adjust said amount at the end of any calendar month an the basis of Landlords experience and roasoneby anticipated oosta- (b) Within ninety (90) days following the end of each calendar year. or as soon as reasonably posaice M+areafler Landlord shelf endeavor to fhmllsh Tenant a statsroerd oovaing such year just ended. showing the Common Area Coots. Taxes and Ireursrtoe and the amount of Tenant's Proportionate Share of such ooets for such year and the payments made by Tenant with respect to such year. N Tenant's Pnopordorpte Share of such costs Is Ises Men Torwirs payments so mods. Tenant ahalf be ehttad to a credit of On difference or, N earth shore Is greater than Tenant's said papaents, Tenant shelf pay Landlord the difference within thirty (30) days after receipt of such sWoment. (c) Any failure or delay by Landlord in daiver*V any @stimated or final statement pursuant to lfhia Sec km &S shell not coraghrte a waiver of Landlord's right to receive Team's papnet of Tenant's Proportionate Share of Common Area Costs, Taxes and Insisarde. 9.1 REBTRICT'ION ON USE. Tonant shall not use at permit the use of the Promises for the generation, storage, troatrant, use, transportation, hanuM'irg or disposal of any chemical, material or ebstance which is regulated as toxic at hazardous or ehpoeure to which is prohibited. inlad or regulated by any govem msrM authority, or which, even i not so regedoted. may or could pose a hazard to to Pramisea, Shopping Center or property adjacent Mheslo or to tho health or safety of parsons on Ihhs Premises or other tenants or ooaQenb of the Shopping Corder or property adjacent thereto. and no such ohemicef, mdeiel or subolanoe shall be brought onto the Promises without the Landlord's express written approval. Terosnt agrees that it will at all tines observe and abide by all haws and regulations relating to the handling of I 02127/0 R/2ENCy Le L? ??00 ?I 1t1t?? allTIAL CENrFNS such materiels and will promptly notify Landlord of (a) the receipt of any warning notice, notice of violation, or complaint received from any governmental agency or third party relating to environmental corny noe, and (b) any release of hazardous materials on the Premises and/or Shopping Center. Tenant shat, in accordance with all applicable laws, carry out, at its sole cost and expense, any rerned"on required as a result of the release of any hazardous substance by Tenant or by Tenants agents, smployses, contractors or invitees, from the Promises arrdror Shopping Center. In addition. Tenant shag Immediately notify Landlord corrceming any water Intrusion or leakage In the Premises. Tenant shall provide Landlord with nrnediate access to the Promises in order to mass" the damage. Repairs to the Premises snap be made by the party responsible. Should Tenant be responsible for the repairs and fail to coned immediatsly, Landlord shag make the repairs at Tenant's expense. Notwithstanding the foregoing. Tenant shelf have the right to bring on to the Premises reasonable amounts of dealing materials and the We necessary for the operation of Termarmt's business. but Tenants liability with respect to such materials shag be as set torih in this Article. 91 WDEMIMFICATION. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and told harmless Landlord and Landlord's partners, officers, directors. srnployees. agents, su oageors and assigns (collectively. tandlord ParW) from and against any and all dawns, damages, judgments. suns, causes of action, losses, fsbpities, penalties. fines. expenses and costs (indudirp. witiout knitsom. clean-up, removal. remmediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and swupect less and court costs) which arise or result iron any ermYiowhrmmewhtal contamination onk in, under or about time Promises. Landlord's Bulift or any other porNan of the Stopping Center and v*dch we caused or permitted by Tenant or any of TenarWs agents. errwployess, subtenants, assignees, licensees. coraradors or invitees (collectively. 'Termnt Parties'). 03 SURVIVAL. The provlskxws of this Article shall survive the termination of this Lease. 10.1 ALTERATIONS; DAMMM Tenant shag make no structural alienations, additions or changes in or to the Pramises Wthoos Landlords prior written corm" and subject to the conditions and requiremerts for ansrations attached hereto as 102 COMPLIANCE MRTN LAWS. Any pe ra ted dearmga, alterations and additions made by Tenant shag be performed strictly in accordance with applicable laws, rules, regulations and building codes relating thereto nekxfig, without Wnkef % the provisions of Title III of the Americans with Dbabgitiss Act at 19w. Throughout the Performance of Tenants ateradons, Tenant shag obtain, or cause its contractors b obtain, workers compensation insurance and commercial general liaWiy insurance in form and substance satisfactory to Landlord and nornitg Landlord as an additional Insured thereunder. %W 4; 11.1 LAMLOAD'S LIABILITY. Landlord shag not be liable for any dawnage or liability of any kind or for any injhxy to or death of any persons or damage to any properly on or about the Promises from any cause whhalsoever, except to ae extent any such matter is not covered by insu ance required to be maintained by Tenant under this Lease and is attributable to Landlord's gross negligence or willful misconduct 112 W(MUM BY TENANT. TmW hereby agrees to indemnify and save Landlord harmless from all damns. actions, judgments. suits, losses. Qrmes, penalties, demands, costs and exverees and liability whatsoever. including reasonable altomeys' fees. exrpert fees and court Dot's (Indemnified Claims') on socoumt of () any damage or iiebgily occasioned in whole or in part by any use or occupancy of the Premises at by any root or omission of Tenant or ae Temarmt Parties, (1) the use of are Promises and Common Areas and ewom of Tenaus's business by Tenant or any Teramt Parties, or any alter acday. wook or thing dew. pemm%W or suffered by Tenant or any Tenant Parties, In or about the Premises, Landad's Blr Mkv or elswomm out the Stopping Canter: and/or (w1 any default by Teram of any obligations on Tenants pert to be performed under the terms of this Lease. In case any action or pnx*K nit is brought against Landlord or any Landlord Patties by reason of any such IndennXed Claims, TouK upon notice imm Lemclord, shalt defend the same at Tenant's expense by counsel approved in wrung by Larxilord, which approval shall not be unreasonably withheld. Tenant shag not be Ileble for darrage or k*" occasioned by are gross rwgligswmra or snggul arse of Landlord or its agents, contractors. servants or smployees unless such damps or injury arissa from park against which Tenant is required by 9* Lease to fnsuae and amen only to this extent of such nsunumce. Tenmsnrs index mEicalim obligation under this Section 112 shag survive time Wipkellon or merger terrlminsli m of this Lease. Twmsnrs covenaro. agreements and inelemrmgkildort in Sections 11.1. 112 and 11.7, are not mended in and shag not relieve shy Insurance prier of its obligations under policies mmmquied to be canned by Tenant pursuant to time provisions of this Lease. io 02/27107 { j.. recta 25o9 ?! I115r0'r RMEWCY gram. CENTERS 11.3 MISURED'S WAIVER. In the event of loss or damage loo the property of Landlord or Tenant each party will look first to its own insurance before making any claim against the other. To the extent possible, each party shall obtain, for all policies of insurance required by this Lease, provisions penv**V waiver of subrogation against the other party, and each party. lor itself and its insurers. hereby waives the right to make any claim against Me other (or its agents, employees or insurers) for loss or damage covered by the insurance requirements of this Leese. 11.4 TENANTS INSURANCE. (a) Tenant agrees that. from and after the date of delivery of the Premises to Tenant, Tenant will carry at its sole cost and evense the following types of insurance, in rice amounts specified and in the form hereinafter provided for: 1. Public Liability and Property Damage Insurance covering the Promisee and Tenant's use thereof against claims for Ponta" injury or death and Property damage Occ ring upon, in or about the Premises. such insurance to afford Protection fo the INM of not lest then $1.000.000.00 in respect of Injury or death d any number of persons arising out of any one O=M 11= and such tnau?artce against property damage to afford protection to the unit of not lets than SWOjO00.00 in respect 14 any instance of property damage. The insurance coverage required under this Section 11.4(a)1 shall, in addition, extend to any liability of Tenant anteing out of the indernrftw provided for in Section 112; and 2. Terart Improvements and Property Insurance covering of of the items included in Tmard's Work. To wnre leasehold improvements. heating, ventilating and sit cansioning equipment, trade fixtures, signage and personal property from tirne to lima in, on or upon the Promises and. lo the extent not covered by landlord's similar ksuranoe, aterations, additions or changes made by Tenant pursuant W Article 10. in an amount not less than their full roplsoernent cost, providing V A rdr, against perils included within standard fors of all risk coverage insurance policy, together with such other coverage the Landlord deems appropriate (.e. flood anNor esdquake). Any policy proceeds from such insurance shall be held in trust by Tenors for the repair, reconstruction, restoration at replacement of the property damaged or destroyed, unless tut Lease shelf cuss and terminate under the provisions of Article 12 (b) AN policies of immarxe provided for In Section 11.4(a) shelf be issued in form aoceptabie to Landlord by Insurance companies with general poaeyt~s rating of not lees than A and a financial rating of Mesa VI as rated in the mom currently available 'Best's kwurance Reports' and qualified to do business In to state to which the Premises is located. Each such policy shah be issued in rice names of Landlord and Terms std any other parties In Interest from time to G me designated In writltg by notice by landlord to Tenant. Said pdkfss shall be for pre mutual and Old WWR and proli0110n at landlord and Tenant and executed copies of each such policy of insurance or a certlfiade Itmedl ahdh be delivered to Landlord upon delivery of possession of the Promises to Terms and tereaNar within Oft (30) days pnor to the expiration of each such policy. As often as any such policy stop expire or tarmiale, renewal or additional policies stall be procured and maintained by Tenant in tike manner and to No extent. AN such polixyas of Insurance shell contain a provision that Qa company writing said policy will give Lwxftd al bast thirty (30) days' noliics in writing in advance of any cancellation. or lapse, or the N(ectlw dale of any reduction in the amounts. or insurance. AN such public fiabllily. property dtmnage and other casualty policies shM be w ltion as primary policies which do not contribute to any policies which may be carded by Landlord AN such public liability and property damage policies shall contain a provision flat Lmidord, although named as an insured, stall nevertheless be articled to recover under said policies for terry loss occasioned to IL its servarss, agents and erployees by reason of to negligence of Tarars. Any Isurance provided for in Section 11.4(a) may be oNicted by a policy of Mw*et i wran09, covering addiional items or locations or insureds: provided, however, that Q) Landlord stall be tamed as an additional insured Mhawrddsr as its wd~ may appear. (0) the coverage afforded landlord will not be reduced or diminished by reason of the use of such biathlaet policy d isurano0. (111) any such policy or policies (except any covering the dials relerred so in Section 11.4(a)(1) slap specify therein (sir Tenant shall Idrnish Landlord %ft a dAmitten stalernent from On mourom under such poky spedyirg) the amount of the total Insurance allocated Io the 'renont Inprovernaft and Properly' more spd>cilieaNy dela#ad in Section 11 A(aX2k and (M rile reclumi true sat font herein are otherwise saliolisd. Terms agrees tD permit Landlord at all reasonable limos to inspect the policies d Iniame ice d Tenant oovsrig netts upon ride Premises for which policies air copies tdare0l are not delivered to Landlord. 11.5 LANDLORIM WSURANCE. (a) landlord aMN, as part of rice Common Area Costs, at all times dung the Tor maintain in olfec a POWY or policies of insurance eoverig the Landlord's &Adrg and the Comecon Aries (excluding Tenant improvements and property required to be inured by Tenets pdrshant to Section 11.4(m)) in an anmw not lets then the full repkoomars coat (exolreive of fns cost d odacevstione, fOUndafl0na end footings). providing prole0tlon against park incbdod Spier standard forma of lie and amended coverage Insurance polkhsa, togster with Insurance against apninlder damage. vandapsm, and malicious mischief. and such other dsks as Landlord may from time to One dolarmie and with arty such deddrlibl" as Lanford may from vne to time determine and public liability insurarnce in such amounts as Lardlad deems la be reasormOle. Any Insurance provided for in Sections 11.5(a) a (b) may be elleeted by a policy or policies of blanket irmmence, coverig additional flame or locations or insists, 11 02/27/o7.... DEMAL R re.ENCY t F-NTF .s Provided that the requirements of Section 11.5(a) are otherwise satisfied. In addition, at Landiord's option, Landlord may elect to self-Insure all or any part of such required insurance coverage. Landlord may. but shall not be obligated to, carry any other term or forms of Insurance as Landlord or the mortgagees or ground lessors of Landlord may reasonably determine is advisable. All insurance required hereunder may be referred to as 'Insurance'. (b) Landlord may carry rent i eurance with respect to the Premises in an aggregate amount equal to eighteen (18) or more times the sum of (? the monthly regrdrement d Mihimurn Annual Rent. plus (i)1he sum of the amounts estimated by Landlord to be payable by Tenard for Additional Rent and Percentage Rent for the month krimediataly prior to the month in which the policy is purchased or renewed. (c) Tenant agrees to pay Tenants Proportionate Share of premiums for the Irtsur Ve provided pursuant 10 Section 8.6 of thhis Lease. Tenant shaft have no rights in any Insurance maintain ed by L arxilord nor shaft Tenant be entitled to be a named insured tw wndiar. 11.6 COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REOUIREMENTS. Tenant agrees at its sole cost and expanse, to comply with all reasonable recormrendalions and requirements with respect to the Premises, or its use or occupancy, of the Insurance undengrkers and any similar public or private body, and any govern mental authority having jurisdiction over irmnance rates with respect to the use or occupancy of the Shopping Center. Tenant shell not do or &Aar to be done anything upon or in the Promises which will contravene Landlords policies of insurance or cause an increase in Landlords Insurance rates. 11.7 L.Illf1T OF LANDLORD'S FiESPONSIBIL11T11. Except b the adurt such matter is not covered by the Insurance required to be maintained by Tenant under this Lease and is attributable to the gross negligence or wilful misconduct of Landlon t Landlord shall not, without ratting the generality of Section 11.1 hereof. be responsible or liable to Tenant or the Tenant Parties for any loss or donage that may be occasioned by or through the acts or omtaeions of persons occupying space In any otter part of the Shopping Center, or for any loss or damage resulting to the Tenant or its properly from bamatimg, stoppage or leaking of water, gas, sewer or steam pipes or for any damage caused by water leakage from any part of to Premises or from the pipes. appliances or plumbing works or from the rot/. street or subsaulam or from any other places or by dampness or by any other cause of whatsoever nature. or loss of property within the Premises born any cause whatsoever or any damage caused by other tonarts or persons in the Premises. occupants of adjacent property of the Shopping Center, or the public. or caused by construction of any private, pubic or quesilpublic work. 121 REST IXTION. Subject to the provisions of 122.12.3 and 12.4 below, if the Premises shall be damaged by any may. Landlord shelf promptly restore same to their condition immeddely prior to the occurrence of the damage to the extort of irourance proceeds received, and the ANnirrrm Rent and other charges shall be abated proportionately as to that part of the Promises rendered untenanlabie. 12.2 LANDLORD'S ELECTION. ff the Premises (Q are rendered wholly atenardable; (ii) are substantially damaged (i e.. the cost to repair or replace exceeds ii0% of their value) as a result of a risk which is not covered by LwWbrft Insurance; (ii) are enb wAially dernaged during On past year of tau term or of any renewal term hereof, regardlees o)rsuran coverage; CM or to building of which they are a part (r h*w to Premises are dwnhaged or buildings which then comprise the Shhoppig Grier. are damaged to the extort d fifty general (60%) a note of the value thereof. so that the Shopping linter cannot m the reasonable judgment of Larrlfod be operated as an integral unit or (v) are damaged and the bolder d any mortgage, deed of Must or other Ilan requires the are of sal or any part of Landlords insurance proceeds in satindacTaon of all or a part d this Idsbtedirms seared by any such narlgaga. deed of trust or otter Yap, than or in any of such events. Landlord nay either elect b repair tau damage to the extent of Insurance proceeds received or may cancel this Lease by notice of cancellation within ninety (90) days attar such event (whereupon this Lease shall expire and Tenant Od vacate and surrerdar the Premises to LaodbrM- Tonle liability for rent, atabjsct to the provisions regsrdlg abatement of minimrrn rent contained above, shelf continue un18 the date of termination of this Lease. 12.31 TENANT'S ELECTION. 11 Landlord bait to owmence the roabration within one hundred twenty (120) days after the casualty and such delay is not caused by Tows (or arty Terhaw Parties) or any events of force nt*m, Tenant shall have the right to tamihate its Less by notice to Lsmdiord given prior to Landlords oommencemor t of construction. In addition, Tenant shall have the right to tenniate flit Lease by giving wrftterh notice to Landlord of axeroise hereof Within one hundred twenty (120) days after the dais Landtands Building is damaged or destroyed ff; (a) no part of the Premises remains tenantable after damage or destruction toned from any cause; or 12 OENTF,R c (b) the damage or destruction of the Landlord's Building occurs within the test twelve (12) months of the Tenn. 12.4 REPAIR. ETC. In the event Landlord elects to repair the damage, any abatement of rent shah end the earlier of (i) sixty (60) days after notice by Landlord to Tenard that the Premises have been repaired at (ii) the date Tenant reopens On damaged Premises for business. Lkdess On tease is terminated by Landlord. Tenant shah refixture the Premises in a manner and to a condition equal to that emioting prior to its destruction or casualty, and foe proceeds of all Insurance carried by Tenant on its property and Improvements shah be held in trust by Tenant for Mw purpose of said repair and replacement ARTICLE 13. MAINTENANCE OF PREMISES 13.1 LANDLOWS DUTY TO MAINTAIN. Landlord wvil, as part of the Comm Area Coats, keep the exterior walls, stnmchrral columns and structural floor or floors (excluding outer floor and floor coverings, waft installed at do request of TerlartL doors, windows and glass) in good repair. NotwillvianidirV the foregoing provisions of its Section. Landlord shall not in any way be liable to Tenant on aooou t of its fall re to make repairs unless Tenant shah have given Landlord written notice and afforded Landiad a reasonable opportunity to efled the same after such notion. 13.2 TENANTS DUTY TO MAINTAIN. Tenant YA. at its own cost and expense, maintain the Premium (attcept Mw part Landlord has agreed to maintain) in good and tenarxable CondlUm and make all repairs b Mw Premises and every part Owed as needed. Tenants obligations under this Section shall inside. but not be limited to, mmftykS repairing and maintaining kerns as are required by any govern ienial agency having Juiadksion thsrsof (wheltm the same is ordinary or extraordinary, foreseen or unicrumen), interior yells and glass. and Mte N"rlor portions of exterior Wefb, c:eiinge. Willy mailers, pipes and conduce within Mw Premium. and all u ft meters. and all pipes and conduits outside Me Prey. between the Premium and the service meter, all flidurae, HVAC equipment (whether such NVAC equipment is located inside or outside the Prowess) it compliance with all Laws Including environmental. sprMW equipmnemtt and otltmr equipment within Mme Premises, the store fronts and all wMerw glass. alt of Twwntts signs. locks and dosing devices, and all window sashes, casement or frames. doors and door foomm; provided Mat Tenant shop make no &*06not. situation or repair of any part of any sprinkler or sprinldsr alarm system it or serving rte Premises witetd Landlord's prior approval. Tenant " contact vAh a service company approved by Landlord for the preventive makawwwi of to HVAC and a copy of Mho service oontract (which oonbW sW be subject to Landorda approval) shah be furnished by Townt to Landlord withn ten 00) days after Tenants opening for busiass, and a copy d any tltmequent contrad shsfl be fumished by Towtt to Landlord whim ten (10) days after Mme same becomes effective. Such service contract must provide for at fast four (4) visits. inspections and services each year and to regular clanging of films. AN broken glass, both exterior and interior, dun be prompily replaced by Tenon with glass of the same kind, size and quality. Tenant silt pemoit no waste, damage or infury to Mw Pangs" and Tenant shell initiate and Carry out a program of repiar maihlerwhoe and Mm of the Promiass, irxioding the painting or me**Mft of all areas of the kdwlor and Mte sore froM so as b impede, to the extent possible, deterioration by ordinary wear std tear and to keep ft same In allnkedn eondNiom Tenant will not overload Mw electrical wiring serving ft Premium and will Instal, at Its opense, wMh Landlords Written approval. any additional electrical wilbg required in con nscla with Tenaars apparatus. Landlord shah be under no obligation to make any repairs, replace news, reconstruction. 8110000118, or Improvements to or upon the Premium or Ilhe meCtlaICal equonent ewC eIvely servklg the Premium except as expreetwy provided for heroin. 133 LANDLORD'S PAGW OF ENTRY AND use Landlord and its &*wrtmd represerMim may enter Me Premises at any and all lines dtakhg usual fwsimse hours of Mme Slopping Center ooapartb for Me purpose of wapseft or repakirg the aame. Landlord has; ft AgM to lock any tenant space Met has begun eor m buclion without Landlords authority or approval. 13A CONFLICTS. M two is a conlhct between ft provisions of laws Artide 13 and Article 12, Mte provisions of Article 12 shell govern. 14.1 GAS, OAMME DISPOSAL. WATER, SANITARY SEWER. TELEPHONE AND ELECTRIC SERVICE. Tenant tdwdl pay for at udillies and sanitary servicws used within de Prep mes and make such deposit or pay such poreft required by We uhity or sewltsfy service company pt A*V dw same, kWudig but not limited 10 application and installation of lemporary and permanent melea; for carMnwUon. L &K%xd mtmdl not be liable for any Interruption or failure whatsoever in uft swvlosc, nor shah any euoh failure or Marmuption cww kute an actual or cortdrx:five etvlclbn of Tenant from to Premises or result in or give The to any abatement in any Rent reserved hereunder. Upon wrMeh request from Landlord, Tenant vdk at Teranra expense, contact ufUt law sevote company designated by landlord for the deposal of ali 13 02/77/0'! 1a??•at151w ri Uh_W7 ZMXAL Rr:C,EN('ti ?.x CENTFRc trash and garbage from the Premises. Tenant will tumish to Landlord a copy of such contract prior to opening for business, and a copy of each renewal of such contract shall be fumiahed to Landlord at least seven (7) days prior to the expiration of the existing contract. Landlord shall have the right to designate vendors to provide utility services and garbage collection services to the Premises, provided that the cost of such service is generally competitive in the vicinity of the Shopping Center. Should Landlord provide utilities to the Stopping Center, Tenant shall pay its proportionate share for the use of the utilities in the manner described in Section 8.6 hereof. 15.1 NO LIENS PERMiTTED; DISCHARGE. Landlord's property shall not be subject to Bens for work done or materials used on the Premises shade at the request of, or on order of or to discharge an obligation of, Tenant. This paragraph shall be construed so as to prohibit. in accordance with the provisions of Slate law, the interest of Landlord in the Premises or arry part thereof from being subject to any cart for any improvements made by Tenant or any third party an Tenant's behalf (except Landlord) to the Premises. If any lien or notice of Bon an account of an alleged debt of Tenant or any notice of Men by a parry engaged by Tensrt or Tenant's contractor or materiahnen to work an the Premises shall be filed against is Shopping Center or any part thereof, Tenant, within ten (10) days after notice of the fling thereof, will cause the same to be discharged of record by payment deposit, bond, order of a court of cornpstert jurisdwbon or otherwise. lf Tenant shall tail to cause such Lien or notice of Men to be discharged and released of record within the period aforesaid, then. in addition to any other right or remedy, Landlord may discharge f1» same other by paying the amours claimed to be due or by procuring the discharge of such Mat by deposit or by bonding procedures. Any amount so paid by Landlord and all costa and expenses, including asorneya' fees and court costs, incurred by Landlord in connection therewith, and Including interest at the Default Rate, shah constitute Additional Rant and shall be paid by Tennant to Landlord on demand, or be deducted from Tenant Allowance or Construction Allowance monies owed to Tenant by Landlord, ti any. ARTICLE I& $KP1"- Tenant shelf at its own expense erect a sign an the exterior sign bard of the Premises, which sign shelf: (i) conform to the general material, size and appearance of Ctier torrents' signs at the Shopping Center, (1) be in strict conformity with any guideMrhes or sign criteria adopted by Landlord with respect to the Shopping Cerdw, kxkxitg, without Mmkatkm% On sign criteria sat forth In Exhibit 'C-1' attached hereto and made a part thereof, (1 be in accordarmoe with all applicable laws, (iv) be knialed by a contractor or other party which rneets with Larxloes prior approval, and (v) be otherwise sulmjed t to landbM's prior written approval. Landlord will not be We to Tenant or any Tenant's contractor or city requirements pertaining to aignege. V at any time during the Term, Landlord determines to replace the sign above the rodonor of the Pw*m in connection with a general renovation of the Shopping Center or otherwise, then Tenant chap pay (or reinbuse to Landlord, as the ease may be) the cost of raphdrg such sign. N sionace allowed inside store wihdows with Landlord prior approval and consent RX to be unreasonably Withheld. 17.1 RESTRICTIONS Ott ASSIGOOMW. Tenard shall have no right to transfer, assign. sublet, attar into license or conoesem agreements, or mortgage or hypothecate this Lease or the Tensnft interest in the Premises at any phut thereat without Landlord's consent. Any altenhpled traralw, aasignnert, subletting, license or concession agrowne iL or hypothecation shall be void and confer no rights upon any 0" person and shelf be a vlplf! m of this Section. Any Uansfer of Oft Lease from Terwt by merger, coMOlidatim liquidation or cterwise by operation of law. Includig, but not fi rhlfed to, an assignment for the bores at txedltow sha0 be included In the fern 'assignment' for the purposes of this Lease and shall be a violation of this Section, Landlord rosy deny Its consent to assignnrenl without cause or Justification and may impose such condlMorhs upon the granting of its consent ae it may deem appropriate. kh kx ft without Mmkasbn, requiring tre assignee to agree to new or different term. To review arhy probed assignment Landlord will require sady (60) days to review tenart's sarlrnnsion of W the rare of the entity receiving such transtsr (the 'Traustaw7; (ii) a dab" deria"m of the business of the Tranderee; n iodated lrmx3d suhdsmanls of the Transferee: (iv) all written agnenants governing the transfer (v) l the Tr.nsterae is an kmdividual, a true and oared Copy of the Transferee's driver's Nixrse; (vl) any idarrtstion reasonably requested by the Landlord with respart to the hanafer or the Transferee; and (vif) a toe of flues hundred dollars ($1IM000) to Compensaia Landlord for legal tees. coals of stirdrsistratiarh, and other ehq wwm incurred In connection with the review and ; n r i am rig of such documentabon. Notwltatarding the foregoing. Larhdtord's cameart will not be dean W unreasonably wittreld should Tent request an assignment of ttds Lease within the fat eighteen (is) mortis of the w w isase term. Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. Consent by Landlord to one transfer will not be deemed consent to any subsequent Transfer. In the event of detaL* by any Transferee of Tenant or any successor Tenant In the performance of any of the terms hared. Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. 17.E CONSDERATION PAID By SUBLESSEE OR ASSIGNEE: In the event that Landlord consent to a sublease and the rental due and payable by the sublessee (or a combination of the rent Payable under such subisase plus any bonus or other consideration therefore or incident Mereo) exceeds the bent payable order On Leese, or it wth respect to an assignment. Permitted license or other transfer by Tenant permitted by Landlord, the ooraiderabon payable to Tenant by the assignee, licansee or other transferee exceeds lfine Rent payable under this Lease. flan Tenant alai be bound and obligated to pay Landlord all such excess rw W and comer excess consideration wBtrin ten (10) days M110anng McW thereof by Tenant from such sublessee, assignee, licensee or coca Oarshree as the case may be plus Tenant shdt pay to Larmflord on an ongoing basis ire Percentage fiend paid by Tenant for the immediate 12 north period prior to the transfer d this Lase Agreement. Fswly, in to event d any assignment or subletting, it is understood and agreed Met all rentals paid lo'Tenent by an assignee or sublessee stall be received by Tenant in trust for Landlord, to be forwarded Immediately to Landlord (to be applied as a crock and offfet to Tenant's Rent obligations). 17.4 CHANGE OF OWNERSHIP. N Tenant or any Guarantor Is a corporation, unincorporated association or parker:hip, a transfer. assignment or hypothecation of any stock at Interest in such corporation, lirnited pability, cornpany, association or partnership by any atocldotder or palter so as to result in a change in the control Hereof by to person. persons or entities owning a majority interest Herein as of the date of this Lease, sfall be deemed to be an assgrvnerd of Ctrs Lease. This provision shall not be applicable to Tenant or to any Guarantor N it is a corporation whose voting sock Is listed on a national securities exchange (as defined in the Securities Exchange Ad of 1934. as anterxfed) or is traded in any recognized over-Owcourder market. 18.1 EVENTS OF OEFAULT. The following the each be deemed to be an event of default (each of which is sometimes referred to as an 'Event of Defeat') In this Lease. (a) any part of the Rent required to be paid by Tenant under this Lease MAN at any lime be unpaid w(ih?a 10 day cure oerhod frnxn env tJodoeyt Default served on Tenant (b) Tenant lads m the observance or performance of arty of its otwr owamnis. agreements or conditions provided for in this Lease, and said failure stall continue for a period of Ion (10) days alter written notice thereat from landlord to Tenant shall (unless such Ifalure cannot and Tenant teve commenced to rcure eesa d (failure within said 't (10) dap and continues dBgerttly, o pursue the curing of the same, which cure stall occur no later them sixty (8t1) days from the date of such notice from Landlord); (c) Tenant fait. after the date on wtrich it is required by airs Lease to open the Premises for business with the pubic, o be open for W* ms as required by this Lease, or vacates or abandons the Premises. Tenant shall not be deanwd in default should the business close so long M Tenant continues to pgy ml and does nd exage+ tidy M 60 day »eriod= (d) the estate created In Tenant or any Guarantor thereof is taken in execution or by other process of law. or all or a substantial pert of se assets co Terwt or any Guarantor heed is placed in the herds of a igrridaor. receiver or trustee (and such fwdvermhip or bustssstmip or 6qutdafm oortirsus trtr a period d Mdrty (30) (ays). or Tenant or any such Quarar or it 'no i an assignment for the bona t of creditors, or admits I writing that It c msct meet As obegatorts as they became due. or is adjudicated a bankrupt, or Tenant or any such Guarantor Ww antes any proceedings tinder any federal or state insolvency or bankruptcy low, or under arty cow act relating to the atrbjsd of bankruptcy wheel the Tenant or any such Ouararttor seeks to be alk4 a bd as bankrupt, or o be d dvugsd d Its debts. or to ethGt a plan d lqukl$WM comPoefdon or reorganizolm or shoud any Involuntary V moaerlrrno be find against Tenant or any such Guarantor under any such iraoive cy or bankruptcy law and such proceeding not be removed wilthit ninety (80) days t Bled r. M any Insolvency proceedings. such as those referred to in this Section 18.1(4), are is 07/27/07 OI?04 Jutend+25MYJ mIISIW ]Im . 7f?ISI FNTERc FJtS - - rfb- rh:N'T' instituted against Tenant, the Premises shall not become an asset in any such proceedings; 182 LANDLORD'S REMEDIES, ib of 2? o h• lay???„r u?soi raz Rt?GC y, ? -B ''F.A?TfiRS Ow knoolm as Dray be ROMAN from Yme to time by aooNeable stagy tatd. As used in (il and (01 above. the 'lvorth at the time of award' shall be oortfotrfed by allgm to ittteteat at the hiotteat rate alktwad by apcGCattle law and as used in NO 1 above, the *worth at the time award' sW be computed by discounting such amount at ft dkKmurd rtde of the Federal Reserve Bonk at The time 21 award plus one oercent I1_xsl, Qgriod. Itnless Landlord or Tenant shah provide to the conttarv by competent evidence. The dots and remedles reserved to Landlord herein. including time not specif ically described. shah be cumufmhm. and exuot as otherwise provided by then aoolicable state law. Landlord may pursue am or a# of such tights and remedies at the same 1IL3 ATTORNEYS' FEES AND 0081 . In the evert that arty adorn salt or ollm proosading Is kdtlated mno mkg or aA*V out d V* Laaae, the pnwakv party shah recover all of stxh patty's coals and agorneys' teas ktcurred in each and every action, suit or other proceeding, indudYg any and all appeals or petltiona Mrerehan from ft non- prevafirg part. As used herein, atraneys' tees' shall mean Mte kd and acknd oasts of any Ispsl servioss ach ally rendered In oorvowbon with the mutters kwdved, cakideted on the been of the usual tee charged by fro attorney pwfomkg such Services- 1 /.! TENANT'S PROPERTY TO REMAK If liwre is an Event of Default, all of Mrs Tenant's rochm , fumimae. equiprrwrt, lawroverrtsrts. addiliorm. afterallom, and other personal pn*wty shah remain on the Premises and, In to evert and corMwAV during ft ianplh d said dsfaA i.,wxmmd shall have the right to take the exclrnW possessbn d same 17 i 09/27/07 L. f_eeal?snovl tnr ArGEW . IXZTZAL CFWER c MIRE any receive or BMNMna undertaken by Landlord following recwlsession. All interest and any late charges imposed pursuant to this Lase shah be considered Additional Rem due from Tenant under ft terms of this Lease. and to use same, without cost, until all defaults are cured or, at its option, at any time during the Term to require Tenant lo tont with remove same. I8.5 CONFESSION OF JUDGMENT AGAINST TENANT. THE FOLLOWING SECTION SETS FORTH WARRANTS OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT AND TO EXECUTE UPON SAID JUDGMENTS. IN GRANTING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, AND TO EXECUTE UPON SAID JUDGMENTS AGAINST TENANT, TENANT HEREBY MOWINGLY. INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING TO DETERMINE ITS RIGHTS AND LIABILITIES UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES. TENANT FURTHER KNOWINGLY, INTELLIGENTLY, VOLUNTARILY AND UNCONDITIONALLY ACKNOWLEDGES THAT LANDLORD MAY, UNDER THE CIRCUMSTANCES SET FORTH BELOW, OBTAIN A JUDGMENT AGAINST TENANT FOR POSSESSION OF THE LEASED PREMISES WITHOUT THE PRIOR KNOWLEDGE OR CONSENT BY TENANT AND WITHOUT OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE, SET OFF, COUNTERCLAIM OR OTHER CLAIM TENANT MAY HAVE. THIS KNOWING, INTELLIGENT AND VOLUNTARY WAIVER APPLIES TO THE JUDGMENT BEING ENTERED BY CONFESSION AS WELL AS TO THE EXECUTION OF THAT JUDGMENT AGAINST TENANT. UPON THE FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND TENANT WITH A BAW THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT. IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROWH OR UNDER TENANT, AND TO SIGN FOR ANUIOR FILE ANY ACTION OR ACTIONS IN EJECTMENT IN ANY COMPETENT COURT AGAINST TENANT AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH A COPY OF THIS LEASE, VERIFIED BY AFFIDAVIT, SHAM BE ITS SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES. A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH. WITHOUT ANY PRIOR WRIT OR PROCEEDINGS. LANDLORD SHRILL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT FAILURE OF TENANT TO PAY ANY RENT OR PLACE SUCH RENT IN A SEGREGATED ESCROW ACCOUNT IN THE NAME OF LANDLORD AND TENANT WITH A BANK THAT IS ACCEPTABLE TO BOTH LANDLORD AND TENANT TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREI NBEFORE SET FORTH TO RECOVER POSSESSION OF THE LEASED PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE LEASED PREMISES AS HE REINABOVE PROVIDED. IN ANY ACTION OF EJECTMENT, LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY HIM OR SOMEONE ACTING FOR HIM, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT. AND, IF A TRUE COPY OF THIS LEASE (OR A TRUE COPY OF SUCH AFFIDAVIT) BE FILED IN SUCH ACTION. IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT THEREBY RELEASES TO LANDLORD AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT ALL ERRORS IN SUCH PROCEEDINGS AND ALL LIABILITY THEREOF. F PROCEEDINGS SHALL 13E COMMENCED BY LANDLORD TO RECOVER POSSESSION LINDER THE ACTS OF ASSEMBLY AND RULES OF CIVIL PROCEDURE. EITHER AT THE END OF THE TEAM OR UPON THE EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, TENANT. SPECIFICALLY WAIVES THE RIGHT TO THE THREE (3) MONTHS NOTICE AND TO THE FIFTEEN (15) OR THIRTY (30) DAYS NOTICE REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AND AGREES THAT FIVE (5) DAYS NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE 110.1 LANDLORD'S DEFAULT. Except as otherwise provided In tltia Lease, Landlord shell be In defsA under this Leese If LwKlwd fe9s b perform any d its obfigaftu hereunder and said tabu co nshm for a period of thirty (30) days after wrbw notice tlherecf from Tumrt to W4ord (unless such fafitse canal maswebly be cured vftk 9" (30) days and L ondloM shall have cammeraed W cure add farce willb Said Wrtyy PM days and continues drlyw* Io pursue the axtg d the same). 9 L wOord ddwAts order this Lease and Y, as a consequerm of such o shall be sMisfied only out of the proceeds of sale receivvedy upon execution d such jnrdpm d against the AIM We and tderaet of Landlord in the Shopping Center as ft same my OW be oorlsMuted and ermumberod, and Lwxowd shalt not be Nsble for any deficiency. In no event spar Tarrant he" the right to " azeoutlon against any property of Iardlord other flan its Merest in the Shoppihp Cer ter. Upon any such uncured default by L&Wftd. Terw s may I , ems any of Its rift provided in law or at **W.. provided, Nhowewr. (a) Term* spar love e no right to rlgft are specifically provided W Mwht In On Landlord under tide Leon. . except to the exlwN offset Lease; (b) Tenant shell have no right to MnNnats tills Lease; and (c) TwwWs rl" and remedies 18 ) 02/27107 ?etA? v1 lrls?m izrcENCY rasrrwn. ENTERS 74: hereunder shall be limited to the extent (Q Tc nwit has expressly waived in this Lease any of such rights or remedies and/or (ii) this Lease otherwise expressly limits Tenant's rights or remedies. Notwk hstandig anything contained in this Lease to the contrary. the obligations of Landlord under this Lease (including any actual or alleged breach or detaull by Landlord) do not constitute personal obligations of the individual partners, directors, officers, members or shareholders of Landlord or Landlord's partners, and Tenant shall not seek recourse against the individual partners. direotors, officers, members or shareholders d Landlord or against Landlord's partners or any other persons or entities having any interest in Landlord. or any of their personal assets for satisfaction of any iabliky with respect to ibis Lease. 192 TRANSFER OF LANDLORDS IM+iTEREW. In the event of the We or other transfer of Landlords Interest in the Premises (except in the ewe of a saie-ieaseback financing Vansacforh in which Landlord is the leases). Landlord shall transfer and assign to such purchaser or bensferes l he Security Deposit whereupon Landlord shall be deemed released Irom all liability and obligations hereunder assgg out of any act, occurrence or omission relating to the promises or this I ease oocurring after the consurntralion of such sale or transfer. Tenant agrees to atlonh to any successor, assignee, mortgagee or ground lessor of Landlord. 20.1 SUBORDINATION OF LEASE AND TENANTS ATTORNMENT. This Lease is subordinate b the Non d all morlgagm deeds of bust sewrky kwMnw ts. ground bases. easement agreements and any covenarns, conditions and restrictions (collectively. 'Superw Intersats' now or hereafter covering all or any pert of the Shopping Center. and to all amendments. modift&tW*. oonscl de ions. renewak, replacements and extensions tnrsof. Tenant also agrees that. M any mwgagee elects to have this Lease prior to the ion of its mortgage and sigrWas such election in the istnonert creating ka ban. or by separate recorded iahurnent, this Leese shall be prix In dignity to such mortgage. In the event of any pror, ad ! gs brought for the enforcement of any instrument d any Superior Interest holder (Including bul not Nmito to a mortgage or Mass). Tenant stall, upon demand by ft Superior Interest hoklor, sawn to and recognize such Superior Interest holder as Landlord under this Lease. In the evert of a sale or assigrrnert of Landlords interest under Innis Lease or in the Pnemkes, Tanant shall aliom to and recognize such purchaser or assignee as Landlord under this Lease withooa further act by L andlnrd or such purchaser or assignee. Tarart hereby waives lib sights under any current or future law which gives or purpab to give Tenant any right to terminate or otherwise adversely affect this Iease and the obligations of Tenant hereunder in the event of any such foreclosure proceeding or sale. 202 INSTRUMENTS TO CARRY OUT INTENT. Tenant agrees tat, in order b confirm the provialons of this Allude, burl in no way finking the so- operatihre doted of said pnoviskinil. Taart stroll axeaute and deliver whatever instrunerts may be required for such purposes within ton (10) days following Lardlmd's wniken mquasL Should Tenant fail to sign and retum any such instrunerts within said fen (10) day period, Tenant shell be in default hereurhder wil bout the benefit of any additional notice or cure periods specified in Its Lease. 21.1 TENANTS AOREElAEfT TO DELVER. Within ten (10) days after request Therefor Iran Landlord. Tenant agrees to execute and delver to Landlord, or to such other addressee or addressees as landlord may designate (and any such addressee may rely thereon), a statement in wrung certMyig (if true) that Qe Lease is in full force and effect and unnodMisd all dsacrNhirg any mociftedons, that Terart has accepted the Premises; OW Landlord has performed all of its obligations under the Lease arks g pfkx to the date d the aerdicNa; to there are no defenses or offsets against the enforcement of this Lease or stating with perlcn/adty time daimed by Teeer k, W1 tine Ire date to which Rent has been paid: and making such other hue representations as may be reasonably requested by Landlord. 2Z1 FAITHFUL PERFORMANCE. Upon payment d the Rent herein proi4ded for and the observance and penfommrice of all Of the agwenarft covenants, terms and condlftions to be observed and perforn ed by the Tenet Tenant shell paticatibily aand quietly hold OW ny other poison or p? lthe awkrry Or ? La oqukably claiming by, through or under 25.1 DELIVERY AF1ER TEFIAL Tenant stall deliver W and surrender to Landlord possession Of the Premises Won the aspiration or sadbr tsrmihatiorh d theTerm, broom dean, tree of debris, in good order. concillion and sWe of repair (except as may be Landlord's obligation under this Lease and ordinary wear and tear). and shah dsNver 19 ( 02/27/07 /p LAW ISM VI IlJim MTIM R rc,F#4(.., ass CENTp,A S ? the keys at the office of Landlord In the Shopping Center or to Landlord at the address to which nolices to Landlord are to be sent. M not sooner terminated as herein provided, this Lease shall temninate at the end of the Terre as provided for in Article 3 without the necessity d notice from after Landlord or Tenant to terminate the same, Tenant hereby Waiving rake to vacate the Premises and agreeing that landlord shall be entitled to the bww* of all provisions of law respecting the summary recovery of possession of premises from a tenant holdrng over. 232 EFFECT OF HOL.DMil4 OVER; RENT. If Torrent or any parry claiming under Tenant remains in possession of the Premises, or any part thereo(, alter any termination or expiation of Bas Lease, no tenarhcy or mteresl in the Premises shelf rested therefrom. but such holding over shall be an unlawful downer and all such panties shell be subject fo immediate eviction and removal, and Teem small upon demand pay to Landlord, as liquidated dernages. a sum equal to all Percentage Rent, l any. and Additional Rent provided for In this Lease dw*V any period which Tenant shall hold the Premises after the Tenn has expired, plus an amount comp Aed at the rate d double the MInInwm Arddrsl Rent for such period. In addition, Tenant shall idenmily, protect, defend (by counsel approved in writing by Landlord) and hold Landlord harmless from and against any and all claims. judgments, suits, causes of action, damages, losses, liabilities and expenses (ihdudng asomeys* fees and court costs) regAdrg from such }allure to surrender, including, without lrnitation. any claim made by any succeeding Want based thereon. The foregoing indem i my shall survive the expiration or earlier lermlrationn of this Lease. The foregoing provisions d this Section 232 are in addition to, and do not affect, Landlord's ngM d re-entry or any other rights of Landlord hereunder or otherwise provided by law or equity. 21.1 ALL OF PREWSES TAKEN. If the whole of the Premises shall be token War permanently or temporan7y by any right d eminent domain or conveyance in lieu lhereof (each being hereinafter referred to as `dorndenuation7, this Lease stall terminate as of the day possession shall be taken by the corhdemhing auMhoriy. 24.2 LESS THAN ALL OF PREMISES TAKEIL Of twenty percent (209) or more of the GLA in the Promisee is taken by corndemnalim or M (regardless of the pencertage of the GL A in the Premises which is taken) to remainder d the Prerhiees is divided in two (2) or more units. then in either event Landlord and Tenant shot have tae right to terminate On Lease upon ninety (90) days written notice after possession is taken by such dmrmdednraton whereupon the Leese shell terminate as of the day possession shall be taken by such condemning authority. Tenant shall pay hart and perform all of is other obligatiors under this Lease up to that date. M this Lease is not so W mimated. the GL.A d the Premises anal be aooordingy adjusted as d the date of the takig, Rent shaif be sooordingly adjusted sad any pre j aid Rent shall be proportionately credited or defiled to Tenant. Thereafter, the Rent stall be based on the sdlkram footage of GL.A in the Promises. Landlord agrees. at Landlord's cast and expense. as soon as reasonably possible, to restore the Promises an the land namainnchg to a complete unit of tike quality and character as existed prior to such appropriation or taking. Provided that Landlord shall not be required to expend more on such restoration than the condemnation award received by Landlord (less all expenses, costa. legal tees and court costs Incurred by Landlord In connection with such award). 24.9 SHOPPMrG CENTER TAKEN. (a) If any Part Of the Shcppitg Center (including any, easonent appurtenant to Landlord's interest therein) is taken by condemnation so as to render, in Landlord's Aidgment, the rerrainder ursulable On Landlord's discretion) for use as a reWl chapping carmen, Lavrdtwd shall have the right so ""Mete this Lease upon notice in wrili g to Tenet within area hdtrdrod twenty (120) days after Possession is token by such condenrelom M Lardlond so termIngi ss this Leese. it anal tw mists as Of the day possession a taken by the Condemning authority, and Tenant shall pay Rant wid perform aI of its obligations under this Leese up to that date with a propartiorste refund by Landlord of any pot as may have been paid in admnoe for a period subsequent 10 such possession. (b) If tide to (1 twenty percent (20%) or rwre of the GLA d Landonts Boding or (i) twenty percent (20%) or more of the parking required to be rairkainad in the Shopping Cantor a so taken, and M Landlord within one (1) year adiar such taking has no subedtAod an equfvafsnt number d parking speoes in a location reasonably accessible to On Stropping Cannier, than either party rmy wmtinte this Lease by rrolioe to the other given W&M thirty (30) days after ins taking or after to expiation of such one (1) year period. as the case may be. 24A OWNERSHM OF AWARD. AN damages for any condemnation of aI or any pert of the Shopping Center, inducing, but not Limled to, all damages as compensation for dmicwsion is value of to hwoohokL reversion and fee, shelf baking to the Landlord without any deduction teretrom for any present or tutus estate d Tenerk and Tenert hereby assigns to Landlord all its right, We and interest b any such award. Although all dareges in foe event of any conhdendhWon are to belong to the Landlord, Tornmt may have the right to claim and recover from to condemning may be separosely awarded or recoverable anartin Tenants o might «m?adocou such compensation t of any and all damage Tenants business by so ( 02/??/o tactsm.zsesvr hnscm I rXAL CENTERS reason of the condemnation and for or on account of any cost or loss which Tenant might incur in removing Tenant's merchandise, l rnihrre, fixtures, leasehold improvements and equipment. 24.5 CONFLICTS. K there is a conflict between the provisions of this Article 24 and Article 13. the provisions of Article 24 shag govem. ARTICLE 26. YMM(,WOUS 25.1 INTERPRETATION. (a) The captions appearing in this Lease are inserted only as a matter of convenience and in no way amplify. define. limit, construe or describe the soaps or intent of such sections of the Lease. The neuter. ferninkm or mascuine pronoun when used herein shall each include each of the other genders and the use of the singular shall include the plural. (b) The printed provisions of this base were drawn together by Tenant and Landlord, so that this Lease shall not be construed for or against landlord or Tenant, but this Lease shelf be interpreted in accordance with the general tenor of the language In an snort to reach the knendsd result. (c) NOMWIetarhding any other provision of this Leese. W the state in which the Prernises is located recognizes a distinction between an estate for years and a 'usuhuat,' it a the intention of the parties for this i ettu nent to create a unutruct and not an estate for years. 252 RELATIONSHIP OF PARTIES. Nothing herein contained shag be oonstnred as creating any relationship between the parties other than the relationship d Landlord and Tenant, nor auce either party to be responsible in any way for the acts, sable of obligations d the other. 25.E NOTICES. (a) Any notice. demand, request, approval, consent or other instrument which may be or is required b be given under this Lease shag be in writing and shat be doomed to have been given when delivered to the party to be trotted or when mated by United Slates certified nail, return receipt requested. postage prepaid, or when delivered by a corner such as Federal Express. addressed to the party to be notified at the address of such patty set forth In Section 1.1(t), or to such other address as such party may from time to time designate by notice to the other in accordance with this Section. (b) No nodoo required to be given to Landlord shell be effective for any purpose unless and until a true copy tared Is flies to each mortgagee of L wKftd's adtats, provided Tenant has previously been given written notice of the carne and address d such mortgagee. (c) Notices required hereunder may be given by an attorney acting on beW d L.andlocd or Tenant. 25A SUCCESSORS. This Lease shah inure to the benefit d and be binding upon Landlord, is successors and assigns, and shag be binding upon Tenant, its successors and assigns, and shag Inure to to benefit of Tenant and only such assigns d Tenant to whom the asslprxnart by Tenant has been nude and consented to in accordance wish the provisions of this Leese. 26.6 BROKER'S CONMNSS1ON. Landlord has entered into an agreement with the real estate broker speckled m Section 1.1(n) d the Lease as representing Landlord ('Lanndionrs Brokerl, and Lan diord "pay any commissions or fees Mot are pay" to Landlords Broker wlth respect to this Lowe in accoddenoe with the provisions of a meparote conodesion contact Landlord snot have no fitter or sepersts a Mgmdm for psynert of coranismons or tees to any other real estate broker, tinder or iternediory. Torent represents that it has not had any dasitnpm with any real add broker. finder or inbrrnediory with compact W On L.osse, other than Landlord'a Broker and the broker spooled h Section 1.1(n) of the Law as reprsserrirp Tenant ('revert's Brokmj. Any c onnrnisefons or teas Payable to Tetrmirs Broker with respect to to Lease shall be paid exclusively by Landlord's Broker. Eadr party represents and warrants to the other, d%K to its knowledge, no other broker, agent or fsndn (a) negotiated or was Instruments! in nsgotatgg or consumnatinp this Lease on its behaM, ordered (b) is or might be d, "I'm I b a comadasion or cornpereation in cora milon with this Laws. Any broker, agent or finder of Tenant whom Tenant has failed b disclose heroin shall be paid by Tenant. 25.11 UNAVOIDABLE DELAYS. in the event that either party shag be dsbayed or hindered in or prevented tram the perfomence of any ad required hereunder by reason d atrMes. lockouts. Moir troubles. iebMlly to Procure Moir or materiels, fallure d power, restrictive governmental laws of regulations. dom. ihsurcocft% war. Ile or other casualty or other reason d a s mar or dsei filar nature beyond the reasonable control of the Party delayed in performing work or doing acts required under the tarns of tits Lease, ten Peftffrw e of Such ad shag 21 7[kY__ _ fa±t...t into vl Inwi 02/2 rNSTJAL CFN7'F.R c be excused for the period of the delay and the period for the performance d any such act elan be extended for a period equivalent to the period of such delay. The provisions of this Section shag not operate to excuse Tenant from prompt payment d Rent or any other payments required by i1he terms of this lease and shall not extend the Term. Delays or fallures to perform resulting from lack of funds tttucN not be deemed delays beyond the reasonable control of a party. 25.7 ENTIRE AGREEMENT. There are no oral agreements between the parties hereto affecift this Lease. and this Lease supersedes and cancels any and all previous negotiations, anrangements. letars Of intent. base proposals. broarres, agreements. representatiorm. promises, warranties and understanWings between the parties hereto OF displayed by Landlord to Tenant with respect to the suhjec mane thereat. This Lease, including the Exhibits and any addenda, sets forth all the ommunts. promises. agreements, conditions and understandings between landlord and Tenant conowning the Promises and the Shopping Center_ No skerstion, arrandment, change or addition to this Lease shag be binding upon Landlord or Tenant unless reduced In writing. signed and mutually delivered between them. 25.6 APPLICABLE LAW. The laws d the state in which she Prertases are located shall govem the validity, performance and enforcement of this Lease. 25A WAIVER. Failure of aMw party to insist upon the strict performance of any provision of this Lease or to exercise any option or enforce any rules and regulations stall not be construed as a waiver in the hiture at any such provision, rule or option. 25.10 ACCORD AND SATISFACTION. No payment by Tenant or raosipt by Landlord of a lesser amour t w the Rent herein stipulated shall be deemed to be other than on account at the earieet stlpidated Rent, nor shag any endorsement or statement on any check or any letter accompanying any such check or payment as Rant be doomed an acoad and satisfaction, and Landlord may accept such check or payhnsnt without prejudice b Landlord's right to recover the balance of such Rent or pursue any char remedy provided ikr in this Lease or and" at low or In egt*y. 25.11 LANDLORD'S SELF HELP. In addition to Lardbrft rights of self-talp set forth elsewhere in Cis Lease, N Tenant at any time fails to perform any of ks obligations under this Lease in a manner reasonably saidactory b Landlord, Landlord shag have the fight, but not the oblipatron, upon giving Tenant at bag ton (10) days' prior written malice of Its election to do so (in the event of an emergency. no prior notice stag be required), to perform such obligations on behad of and for the account of Tenant and to take ag such action necessary to perform such obligations without gabigy to Tenant for any low or damage W doh may result to Tenant's stock or business by reason of such repairs. In such event, Landlord's Costs and expenses 'shckafsd lherain span be paid for by Tenant as Additional Rent, forthwith upon demand therefor, with interest thereon from the date Landlord performs such work at the Defauk Rate. The performance by Land ord of arry such obligation shall not oonstit uts a release or waiver d Tenant therefrom. 25.12 RECORDING. Tenant agrees that It wig not record the Lease, nor a short memorandum tared. 25.13 JOINT AND SEVERAL LIABILITY. It two or more individusls, corporations. portneralwa or other business assockitorm (or any =nbkhat)n of two or more tareof) shag sign this Lease as Tenwlt the liability of each d tlham stag be joint and several. In like rnutar, R the Tenant named in this Lease shag be a partnership or other business association. the merrkbeds of which are, by virtue of statute or general law, subject to personal IidnTdy, the gabft of each such member shall be jokt and several. 25.14 EXECUTION OF LEASE. The subrtmiesion of rib Lease for exernMaMon does no constitute a reservation of or option for the Premises or any other space within the Shopping Cantor and shall vast no fight in eftaf party. This Lome shag become effective as a Lease only upon execution and legal delivery thereof by the parties, together with 1 he execution and delivery to landlord of a (guaranty in On form annexed hereto by the Ouaranbr(s), 6 any, named in Section 1.1(k) and to delivery by Tenant to landlord d any doc rnents and monies (if any) required to be deivered by Tenant to Landlord upon Terart's execution and delivery d IWW Lease to Landlord. This I.eaea may be executed In more than one counterpart, and each such counterpart shag be deemed to be an original docarmt 26.18 WAIVER OF JURY TRIAL. Termant hereby waives trill by jury in any aaton, proceeding, or permbelve counterclaim MNOMng arty matters whatsosvef wising out d or In any way connected with the Lease. On relationship of Landlord and Tenant. Tenwirs use or o=Vency of the Premises, or claim for Injury or damage. 25.16 TWE OF TN E ESSENC L Time is of the essence of each and every obligation under this Lease. 22 07/77/o'e law?gd, rm?..rZSnorm ye±ie, It .0 NC-v. n3 CF,Nlrf: 25.17 TENANT'S AUTHORITY. It Tenant executes this Lease as a limited liability company, partnership, or corporation, then Tenant and the persons and/or entities executing this Lease on behalf of Tenant represent and warrant due (a) Tenant is a duly organized, authorized and validly existing partnership, corporation or limited liability company. as the case may be, and is qualified to do busirbss in the state In which the Premises is located; (b) such persons anNor entities executing this Lease are duly authorized to execute and deliver this Lease on Tenant's behalf in accordance with the Tenant's operating agreement (lf Tenant is a limited liability company), Tenant's partnership agreement (if Tenant is a partnership). or a duly adopted resolution of Tenants board of directors and the Tenant's bylaws (i Tenant is a corporation). and (c) this Lease is binding upon Tenant in accordance with its temp. Concurrently with Teren[s execution and delivery of this Lease to Landlord and/or at any lime during the Term wigi ten (10) days of Landlord's request, Tenant shall provide to Landlord a copy of any documents reasonably requested by Landlord evidencing such qualification. organization. existence and auttwizadon. 25.18 _ ANT4TERRORISM AND MONEY LAUNDERING REPRESENTATION AND Tenant cerllfbs Oat (i) neither it nor ft ofiosm. directors or controlling owners is acting, directly of indiirectly, for or an behalf of any person, group, entity, or ration named by any Executive Order. the United States Department of Juslioe, or the Untied States Treasury Dsparmwe as a terrorist, 'Specialty Designated National orillodced Person; Or other banned or blocked person, entity, ra/fen, or transaction pursuant to any law, Order. nee or regulation that is enforced or admk4stared by the office of Foreign Assets Control rWM"); (d) neither it nor its officers, directors or cw*o*V owns is engaged in Mro transaction, dWft* or indirectly an behalf of, or instgnong or faciirating this trans cdm directly or i ndlnbL* ern behalf of, any such person. group. entity or nation: end (ii) room it nor its officers, direaom or controlling owners is in violation of Presidential Exac tim Order 13224. the USA Patriot Ad. the Bank Secrecy Act, Me Money Lawdaft Control /lot or any regulations promulgated pursuut Ifwsretp. Tenant hereby agrees to defend, indemnify, and fold hemtess Landlord from and against any and all claims, damages, losses, risks, iisbiitiee and expenses (Including attorneys tees and costs) arising from or related b any breach Of the foregoing cerb'Iicalion. Should Tenant, during the term of this Lease, be designated an SON, Landlord may, at its sofa option. terminate this Lease. 25.1 CONDITIONS ON LANDLORD'S RIGHT TO RELOCATE PREEMSES. Landlord shall have the right at any time b require Tenant to surrender to Prsnraas and accept substitute pnwniess (Me 'New Premises") in the Shopping Carter provided On following conditions are met 1. The New Premises shall be comparable in size. configuration. utility and location to the Premises. 2. Landlord will, at Lanxlbas sole cost and experae. prepare the New promises to as nearly the same condition as the Prembes as is practical under In ciraxnedances iwekrdlng using Tenant's existing bade fixWres and Tenants fit ou± irndu+..4car..?.r Lr,t,...n.e r .,? 3_ Landlord will pay all reasonable moving, telephone Installation and stationery reprinting costs actually paid for by Tenant In connection with such relocallon. 4. Landlord will give Tenant riot less Man thirty (30) days' mice d Landlord's itention to exenne its rights tinder Mnia Article. Tenant agress to cooperate with Landlord in finding the NOW Premisee which are reasonably acceptable to Tarrant and in planning tmpnovernents, d any. required to the New Premises. 26-2 LANDLORD AND TENNAM RIGHT TO TERMINATE M Landlord tests the criteria sat forth In Section 26.1 hared and is unable to provide New Promises TerwiL Own I by pr reasonably y acceptable ys n par ninety (9D) ty- If. Tpa shall have the d* to tentdmab this lf, doting Me Tenn, Tenant or any person, firm or corporation who or which oatbots or is oontroied by Tenant shall dksctiy or hxwacdy. either individually or as a partner or slocd holder or of arwise. am S, operates or becomes financially interested in any business simian to or competing w+h the business for which Tenant is authorized to use the Premises as pnwided in $sction 1.1 within a radks of MMse (3) mdse from the outside boundary of the Shopping Cantor as presently oonslihted, the -Gross Sales' (as de&W in this Leese) of any such bum ness or businesses within said radius shelf, without No Mb Landlord's other rsrnedfes tender this Lease including Folding Tenant in default, to included In we t3mm Sales made from the Premises for sot purposes of tie Lease and the Pacelttsge Rent hereunder alai be computed upon the h of the Gross Sales me& frorn ft F?en and by any such other busina or businesses ten owxkxud wtdn said radius This Article, " not apply such busheas or businesses which is owned by Tenant and fs open and In operation within said pprim to ss W27/0 JALUP RW;ENCY XKXTW. the date of this Lease. Landlord will not lease In the future to any tenant in the Unill rd's IkAding for the purpose of conducting within the landlord's Building as its principal business the sale of. Tanning services, with the exception of a full service salon or spa exceeding 6,000 square feet which may have tanning services Smiled to two (2) beds. K is understood that this exclusive shall not apply to any existing tenants. It is furmer understood that other tenants or occupants in the Landlord's Building may sea one or more of the restricted iterns as an incidental part of tl'teir business, and permission heretofore or hereafter granted by the Landlord to conduct such incidental sates shall not be descried to violate this covenant. It is fwlhw understood that should TeAsPA lall to fesial; Its peneMage Fen! break p9W in wW twelve (12) mentli psFied Me- Sim lims lease year-eHshouid Tenant become in default under any provision of the Lease, then this exclusive shell immediately terminate and be of no further force or effect. This exclusive shall tamwinfe should this Leese be assigned and. as a result of such assigrrneM tine use of the Premises is changed from the primary use set forth in Section 1.10) of the Leese or k the use of the Premises is otherwise changed from the primary use set forth in Section 1.10) d this Lease. Landlord reserves the right to lease (or consent to the use of) any space in to Landlord's Building w*xxA time the lease ie nude (a restriction an ton the use or such space to any tenant whose principal business at the given) is that of department store, junior department pore. variety store, grocery store, drug store. or to any tenant initially oocupykV more than 20.000 square feet of GLA, k being understood that Landlord shall not be obligated to restrict the use d any of such space In any manner whatsoever. ARTICLE 29.-QprloN To EXTEM Tenant shoo Have ate option, exercisable by written notice to Landlord, by certified malt, return receipt requested, given not later than sbc (6) months prior to the expiration of the initial Term, to extend the Lease for one further term of sixty (80) monf on the same terns and conditions as provided in this Lease, except that (a) Landlord shall have no obligation to make any improvements to the Premises, and (b) Minimum Annual Rent for the rrst extended term shall be as set fortis below. Mont 5 Per Sauare Fps( Per Annurn 1-12 $W25 13 - 24 $39.40 25 - 36 $40.58 37 - 48 S41 AD 49 - 60 $43.06 and (c) there " be no option to further extend the farm. Notwithstanding the foregoir % this option to Extend this Lease shall be deemed null and vold More or more d the Wowing has occtxred; 1. Tenant has been late in the payment d rent on three (3) or more occasions within any twelve (12) month period. For this purpose, a payment shall be deemed so be We If it is received by Landlord after the second day d the math In which such rent is due. 2. Tenant has been isle on three (3) or more occasione wthin any twelve (12) math Period in finishing to Landlord the monthly sibs repola required by Article 4. For this purpose. a report shelf be deemed b be laic 4 ti is received by the Landlord at or after the 21 at day d the month. Lease. 3. Tenant is in default in the performance d ary d its obligations under the . 4. Tenant has failed to give w atten notice by certrried mail, return receipt requested, to Landlord six (6) maths prig to the expiration of the initial tern. 24 07 77/07p?{y}fy7yp¢}7,co7}}/p7/oil ?tjf?l iy_g Y11/1? R rGENC t CEN'ft=R c The Lease has ever been assigned. ARTICLE 30. LIMIT ON COMMON AREA COSTS FOR DEVELOPMENT Nolwithstardrig the provisions of Arline 8 of the Lease. Landlord agrees filet Tenant will not be required 1o pay its Proportionate Share of Controllable Common Area Costs alter the Second Lesse Year which exceeds $2.50 per square foot per annum, increased by 7% for each calendar year for the initial term which has elapsed sirx:e the First Lease Year following the Commencement Date. Controllable Common Area Coats are all of Owee Common Area Costs described in Section 8.5. except for dw coats of utilities furnished to the Common Areas, security, snow removal coots and the coats of any services provided by governmental authorities or agencies or any expenses relatirg to government taxation. ARTICLE 31. LANDLORD'S SUBORDINATION OF LIEN EXCEPT AS PROVIDED IN ARTICr F 31- TO SECURE THE PAYMENT OF ALL RENTAL AND OTHER SUMS OF MONEY DUE OR TO BECOME DUE HEREUNDER AND THE FAITHFUL PERFORMANCE OF THIS LEASE BY TENANT, TENANT HEREBY GRANTS TO LANDLORD AN EXPRESS FIRST AND PRIOR CONTRACTUAL LIEN AND SECURITY INTEREST ON ALL PROPERTY (INCLUDING. BUT NOT LIMITED TO. FURNITURE, FIXTURES, EQUIPMENT, INVENTORY. CHATTELS AND MERCHANDISE AND ALL ACCESSORIES ?HERETO AND ALL PROCEEDS THEREOF) WHICH MAY BE PLACED ON THE PREMISES, AND ALSO UPON ALL PROCEEDS OF ANY INSURANCE WHICH MAY ACCRUE TO TENANT BY REASON OF DESTRUCTION OF OR DAMAGE TO ANY SUCH PROPERTY. SUCH PROPERTY SHALL NOT BE REMOVED FROM THE PREMISES WITHOUT THE WRITTEN CONSENT OF LANDLORD UNTO. ALL ARREARAGES IN RENTAL AND OTHER SUMS OF MONEY THEN DUE TO LANDLORD HEREUNDER SHALL. FIRST HAVE BEEN P/ND. ALL EXEMPTION LAWS ARE HEREBY WAIVED IN FAVOR OF SAID LIEN AND SECURfTY INTEREST. THIS LIEN AND SECURITY INTEREST IS GIVEN IN ADDITION TO LANDLORD'S STATUTORY LIEN AND SHALL BE CU MIN.ATIVE THERETO. UPON THE OCCLWIRENCF OF ANY EVENT OF DEFAULT. THIS LIEN MAY BE FORECLOSED WITH OR WITHOUT COURT PROCEEDINGS, BY PUBLIC OR PRIVATE SALE, PROVIDED LANDLORD GIVES TENANT AT LEAST TEN (10) DAYS NOTICE OF THE TIME AND PLACE OF SAID SALE. AND LANDLORD SHALL HAVE THE RIGHT TO BECOME THE PURCHASER UPON BEING THE HIGHEST BIDDER AT SUCH SALE CONTEMPORANEOUSLY WITH THE EXECUTION OF THIS LEASE (AND IF REQUESTED HEREINAFTER BY LANDLORD). TENANT SHALL EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FORM SO THAT. WHEN PROPERLY FILED. THE SECURITY INTEREST HEREBY GRANTED SHALL THEREUPON BE PERFECTED. IF REQUESTED HEREAFTER BY LANDLORD. TENANT SHALL ALSO EXECUTE AND DELIVER TO LANDLORD UNIFORM COMMERCIAL CODE FINANCING STATEMENTS IN SUFFICIENT FOAM TO REFLECT ANY AMENDMENT OR MODIFICATION IN OR EXTENSION OF THE AFORESAID CONTRACTUAL LIEN AND SECURITY INTEREST HEREBY GRANTED_ TENANT HEREBY GRANTS TO LANDLORD TENANTS POWER-0F-ATTORNEY TO EXECUTE SAID FINANCING STATEMENTS IN TENANTS NAME. PLACE AND STEAD. SAID POWER IS COUPLED WITH AN pQTFAEST AND IS IRREVOCAILLE. LANDLORD SHALL, W ADDITION TO ALL OF LANDLORD'S RIGHTS HEREUNDER. HAVE ALL OF THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE AS ADOPTED ¦r THE STATE IN WHIG THE PREMISES ARE LOCATED. A .COPY OF THIS LEASE MAY BE FLED AS A NON-STANDARD FINANCING STATEMENT. Subject to Iths limitations and restiWons below. Tenant *W have Ow right, al its sale cost and expanse, upon at least thirty (30) days prior written notice, to audit L.trrdlonts books and records pertaining to Landlord's common any costs and experwas for the irnmedle y preoedirV calendar year. Tenant's right of audit Is further subject and conditioned upon the forowwbr. as f W/27/D70a?13/O???ClialYi/OC to teal 25M.1 Vt%M RrGENCI >rsr» CENTERS mom (a) Tenant must utigze its own quaified employees or employ a nationally recognized accounting firm or other qualiried accountant or professional to conduct the audit and may not have a contingent tee arrangenrent with the person or firm engaged to perform the audit; (b) Tenant must elect to conduct' its audit within sox (8) months following Tenant's receipt of Landlord's annual statement of common area costs and expenses (but no more than once in any calendar year), time being deemed of the essence (failing which the annual statement shag be deemed to be correct); (c) The audit shag be conducted at Landlords designated offices; (d) Tenant and is auditors shall be required to execute a confidentiality latter In form reasonably satisfactory to Landlord and Tenant, the effect of which will require Tenant and its auditors to refrain hom divulging the contents and results of the audit to any third person, except and to the extent that disclosure is required b potential larders, partners, assignees or purchasers of Tenant, governmental agencies or in the event of gtigation, subpoena or governmental compfrance; and (e) N the Tenant shall have had an suck made for any calendar year, then Tenant shag provide landlord with a copy of the audit report. In the evert that any such audit reveals that Tenant has overpaid its pro ram share of said corrrrnon area costs and expenses for such calendar year, then as Tenant's sole remedy. there shall be a prompt adjugmert between Landlord and Tenant as provided In this Section and Landlord shag reimburse Tenant the amount of the overpayment. in the evert Tenant has overpaid in excess at five peroont (s%) in any calendar year, ttren Landlord shah pay to Tenard the reasonable cost of such audit A 1CL E S/. TENANT'S F LiwnAL STATEMENTS Upon ten (to) days prior written request from Landlord (which Landlord may nuke at any time during #0 Term but no more often than two (2) times in any calendar year). Tenant sttai deliver to Landlord () a cuMW financial statement of Tenant and any Guarantor of this Lease (N atrr). and (b) flrnsridw statements of Tenarl and any such Guarantor for the two (2) years prior to the currsrt firwwiaf statarrnert year. Such stafemerts shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer of Tenant (N Tenant is a corporation or limited liability company) or a general partner of Tenant (N Tenant is a parinenship). ) 26 ?2T/0'1gi?iq?a7caJ.a?o?-. •_ ,_ lu L?'rsn9 rl Vls?m RfiGEINK r"nr"'• CFNTFRc W WITNESS WHEREOF, Landlord and Tenant have duty executed this Lease as of the day and year first above written. Witness I AA Q,AI i w wiuheee LANDLORD: SILVER SPRING SQUARE II, LP a Delaware Limited Partnership, By: Regency Really GrouP. Inc., L Florida Cmppd&Q Its: General C?7 By. Its: HOLLYWOOD TANNING SYSTEMS, INC., a Ngw Jersey corporation RALPH VENUTO JR. or Attest ...8? Its: - Tax LD* Executiori Corporate: This Lone., oat be executed for Tenant, if a corporation, by the president or vice president and attested by the secretary or assistant sscmftry, unless the bylaws or a resolution d the Board of Directors shall otherwise provide. In which event. a eertXied copy of the bylaws or resolution, as the case may be. must be furnished. Also, the corporate seal of Tenant, N Tenant has such a seek must be affixed. Individual: This Lease must be executed by each Individual whose name appears under the signature roes. Their execution mast be witnessed by two (2) disinterested persons who must sign as witnesses in the apace provided. 27 az/z?/o? a;/oc >?sxat±so9 ?u hnsrm Rr Z'NCY ZMXT . zees CFN7'F.R c EXHIBIT A SILVER SPRING SQUARE LEGAL DESCRIPTION KREITLER / SPEEDWAY TRACT PREMISES "A" ALL THAT CERTAIN piece or parcel of land, hereditaments and appurtenances, situate in Silva Spring Township, Cumberland County, Pennsylvania, mote particularly bounded and described as follows, to wit BEGINNING at a point in the center line of Market Place, acid point being North 5 degrees 27 minutes East 364.48 feet from the Noah= right.of--way line of U.S. Route No. 1 I (the Carlisle Pike); thence along fire center line of Marlat Place, North S degrees 27 minutes East 319 plus or minus fact to a point; thence along land now or formerly of Donald Carter, South 89 degrees 0 minutes Went 495.34 feet to a point; thence along land of Silver Spring Thertea, Inc., North 1 degree 0 minutes West 71 feet b a point tihemce along the same, North 89 degrees 21 minutes Wet 789.10 fed to a point; thence along land of Permaylvania Supply many. North 12 degrees IS minutes West 686 phis or minus fact to a paint; thence along land now or formerly of Snyder, North 79 degrees 15 minutes East 1,574 plus or minus feet to a point; tha ce along land taw or formerly of Harry E. Horton, South 67 degrees 45 minutes am 230 &ct to a point thence along the same North 78 degrees 45 minutes East 143 feet to a point thence along land now or formerly of Franklin Sheffer. South 43 degrees 30 minutes East 767.25 fed to a point or the Lambs Gap Road; thence along the same South 12 degrees 0 minutes East 50 plus Or minus feet to a point trance along land now or formerly of Percy S. Williams, South 85 degrees 0 minutes West 240.50 feet to a point thence along the same. South 6 &W= 48 minutes East 150.07 feet to a point thence along ddre same, Nash 85 degrees 0 immites East 195 plus or minus feet to a point an the Westerly dedicated tight-of-way line of Lambs Gap Road; theax along the same. South I 1 degrees 15 minutes 4S seconds East 82 plus or minus feet to a point; trance along the same Southwardly by a crave to tie left having a radius of 2,332.01 feet, an arc length of 5054 feet to an ion pin at the Northeastern corner of Lot Na 4 on Wert certain Plan of Loss of Silver Spring Businesses, Inc., dated November 18, 1988, prepared by Whitlock & Hagan Engineers & Surveyors, and recorded in Cumberland County Plan Book 57, Page 8; thence along the Northern line of the aforesaid Lot No. 4, South 77 degrees 29 minutes 45 seconds West 156.25 feet to a point thence along the same, North 6 degrees 2 minutes 30 seconds West 72.38 fat to a point; Wane along the same, South 83 degrees 57 minutes 30 suds West 125 fxt to a point Herne along the Western boundary of the aforesaid Lot No. 4, South 4 degrees 2 minutes 30 seconds East 195 fed to a point; lheoce along the same and a10158 the Western boundary of Lot No. 3 an the afaeaaid Plan of Silver Spring Businesses, Inc., dated November 18, 1988, and recorded as afams aid, South 22 degrees 25 minutes Fad 126.20 Wet to a point on the Northern line of lands of Silver spring Mobile Home Park; thence along the sawn. South 73 dgpvo 46 minutes Weal 403.96 feet to a pmt; thence along the same. South 18 degrees 26 minutes East 110 feet to a poit; Hence 4110+8 We same, South 85 degrees 9 mdstutes West 374 feet to a point in the aster line of Madwt Place, the place of BEGINNING. CC)VTAINING approximately 53 plus or minus acres. BEING the same premises which Silver Springs Business. Inc. a pettWlvania Corporation, by Indenture dated December 21, 1988 and recorded in the Record=. of Dceda. in and for the County of CIRMbalarrd, afotesaK in Plan Book S33 page 769 &e., granted and conveyed unto Silver Spring Speedway. Inc., a Pennsylvania COpaation, in fee. BEING Parcel No. 38-07-0457-00-8 EXCEPTING thereart and thesefrom (if any) the premises as mere fully described in the following deed. NONE PREMISES "B" ALL THAT CERTAIN piece orparcel of land, hereditameats and appurtenances. Situate im Silver Spring Township, Cumberland Comity. Pcmglvani41, more particularly bo ndod and described as follows, to wit RMENCV 1 CF?v7'F.R S BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern coma of lands of Robert Yentzer; thence along the Northern line of lands of Robert Yentzer, South 66 degrees 58 minutes 30 seoonds West 68.79 feet to a point on the Northam corner of lands of Silver Spring Mobile Home Parr thence along the Northern line of lands of Silver Spring Mobile Home Park, South 80 degrees 40 mantes 30 seconds West 185 feet to a point; thaws along the same. North 22 degrees 25 minutes West 116.86 feet b a point, thence along the tame, South 73 degree 46 minutes West 32.10 feet to a point at the Southea_stem owner of other lands of Silver Springs Businesses, Inc.; thence along the same, North 22 degrees 25 minutes West 29.11 feet to a point at the Southwestern corner of Lot No. 4 on the heminafkr mentioned Plan of Lou-, thence along the Southern line of Lot No. 4, North 63 degrees 56 minutes East 296.36 feet to a point an the Western right-of-way line of Lambs Gap Road; thence abng Wedem right-of-way line of Lambs Gap Road Southwardly on a curve to the left having a radius of 2,332.01 fat, an arc length of 210.07 feet to a point, the place of BEGINNING. CONTAINING 1.12 acres, more or less. BEING Lot No. 3 on that certain Plan of lots of Silver Springs Businesses, Inc.. dated November 18, 1988. prepared by Whiltock & Harbnan Engineers R Surveyors. recorded in Cumberland County Plan Book 57, Page 8. BEING part of the same premises which Silver Springs Businesses. Inc. (a Perawylvania Corporation), by Inda?ane baring date the 21st day of December A.D. 1988 and =,Wdod in the Of6oe of the Retarder of Deeda in and for the Canty of Cumberland. aforesaid, in Deed Book 5-33 page 774 &c., granted and conveyed unto Alan G. Kreittiar, in fa. BEING 38-07.0457-013. EXCEPTING thereout and t=fivm (if any) the premises as mere fully described in the following deed: NONE PREM SES"C" AIL THAT CERTAIN piece or pared of land, her editamnnts and aplmrftanoes, Situate m Silva Spring Township. Cunbafand County. Pedmsyly uuL%, more particularly bounded and described as follows, to wit BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the Northeastern corner of Lot no. 3 on the hereinafter mentioned Phu of lots: thence along the Northern line of Lot No. 3, South 63 degrees 56 mimreea West 2%.36 fat to a point an die Eastern line of other hinds of silver Springs Bushmnes, Inc ; thence along the some, North 22 degrees 25 minutes Weal 97.09 feet to a point; tienee along the same, Norio 4 degrees 2 minutes 30 mean s Weal 195 feet to a point; thence along the same, North 83 dgpeea 57 minutes 30 seconds East 125 feet to a point; thence along the same, South 6 degrees 2 minutes 30 seconds East 72.38 fed to a point, thence along the same North 77 degrees 29 minutes 45 seconds East 156.25 fed to a point an the Weacm right-of-way line of Lambs Gap Road; thorns along die Western right of-way line of Lambs Gap Road, Smxd wardly on a cove to rho left having a radius of 2,332.01 Poet, on we length of 133.10 fat to a point, the place of BEGINNING. CONTAINING 137 acres, more or leas. BEING Lot No. 4 on that certain Plan of Lots of Silver Springs Businesses, Inc, dated November 18, 1988, Prepared by Whitlock A Hartman Engineers R Surveyors, and recorded in Cumberland County Plan Book 57, Page 8. BEING Part of tine same Pnmd as which Silver Springs Businesses , be. (a Pemnaylvwn Corporad04by htdaiUse bearing date the 21 d day of DecemberAD. 1988 and recorded in tie Office of the Recorder of Deeds in and for the County of Qmhberiaed, aforesaid, in Deed Book 5-33 page 774 Rc., granted and conveyed unto Alan G. Kreitaer, in fee. BEING 38-07.0457-014. EXCEPTIIN(i thereout and *A1Vcfiem (if any) On Femise:s as more fully described in the following deed: NONE Rf'GPil?y Z CENTFRc PREMISES "D" ALL THAT CERTAIN tract or parcel of land, Hereditarnents and Appurtenances, Situate in Silva Spring Township, Cumberland County, Pennsylvania, more particularly described as follows, to wit: BEGINNING at a point an the North side of the Cuiiah: Pike, said point being in the center line of Market Place; thence along the center line of Market Pox, Nosth 5 dcgtess 27 minutes East, 364.48 feet to a point; thence along Lot No. 1, North 85 degrees 9 minutes East, 374 feet to a point; thence along same, North IS degrees 26 minutes West, 110 feet to a point; thence along same, North 73 degrees 46 minutes Gast, 436.06 feet to a point; thence along same, South 22 degree 25 minutes East, t 16.86 feet to a point' thence along acme, North SO degrees 40 minutes 30 seconds East, 195 feet to a point; thence along lard of Robert Yentra, South 24 degrees 38 minutes East, 200.68 feet to a point; thence along same, South 17 degree 33 minutes West, 186.70 feet to a point; thence along same, South 12 degrees 31 minutes 35 nooads West, a distance of 137.26 fact to a point on the North side of Carlisle Pike; thence along same, South 89 degrees 0 m inmtes West, 32.21 feet to a point; thence aloft land of Wilbert E. Kncibm, Jr., North 8 degrees 27 minutes West, 126.07 feet so a point; therxx along same and lard of Margaret Garver, South 89 degrees West 263.63 fen to a point; thence along land of Margaret Garver, South 1 degree East, 1 SS feet to a point on the North side of Caufide Pike; theta along name, South 89 degrees Weal, 704.42 feet to a point, the place of beginning. CONTAINING approximately 10.43 ages. BEING Lot No. 2 on the Final Subdivision Phan for Ray Garver, Inc., recorded in the Orrice of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Plan Book 37 page 86. BEING the sumo premises which Jean Moyer and Robert A. Moyer. by Inde rum dated March 13, 1989 and recorded in the Recorder of Docds, in and for the Comity of Cumberland, aforeaid, in Deed Book V-33 page 614 dec., granted and conveyed unto Alan G. Kreitzer, in fee. BEING Parcel #38-18-1325-001. EXCEPTING thercout and therefieom (if any) the premises as more fully described in the following deed: NONE PREMISES "E" ALL THAT CERTAIN piece or parcel of land, Hereditaments and Apptutecanas, Situate in Silver Springs Township. Cumberland County, Pennsylvania, more particularly botmfded and described as follows, to wit: BEGINNING at an iron stake on the No theiy side of U.S. Rouse #11. commonly known as the Carlisle Pike, said iron stake being 643 feat Wetwadly of the u t eactiom of the Northerly side of U.S. Route #11 and the center line of LegisI Live Route 1121051; thence along the Northerly aide of U.S. Roma #11 North 92 degrees 15 m mint west 127 feet to an iron pin; dMoe along other land now or hue of Ray Garver, inc. North 7 degrees 45 minuses East 180 feet to on iron pin thence along odwr land now or ialo of Ray Garver, Inc. South 82 degrees 15 minutes and 127 feet to an fort pis; lhehae along other Ind now or late of Ray Garver, Inc. South 7 degrees 45 mina West 180 fat m an iron stake, the place of beginning. KNOWN AND NUMBERED as 6408 Carlisle Pike, Mechanicsburg. BEING the same premises which Margaret Is. Guyer, widow, by Indenture dated September 21, 2001 and recorded in the Recorder of Deeds, in and for the Canty of Ctmnbedsnd, aforeWd, in Deed Book Volume 248 page 4360 due., granted and conveyed ado Alan G. Kremer, in foe. r Rf CtiNs 3 UNDER AND SUBJECT to valid building, zoning, deed and plan restrictions, right of the public and others in the roads, streets and alleyways adjoining the described premises and easement of record and apparent. BEING Parcel #38-18-1325.002. EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed: NONE i REMS S " ALL THAT CERTAIN lot or piece of ground with the buildings and impnovernents thereon erected, Hereditanneots and Appurtenances, SITUATE in Silver Spring Township, County of Cumberiand and State of Pennsylvania, bounded and described as follows, to wit: BEGINNING at an iron stake on the Northerly side of U.S. Route No. 11, comnnonly known as the Carlisle Pike, said non stake being a distance of 480 fat Westwardly of the intersection of the Northerly side of U.S. Route No. 11 and the oeata litre of Legislative Route No. 21051; thence slang the Northem side of U.S. Route No. 11 North 82 degrees IS minutes West, a diatoms of 163 feet to an iron pia; theme along land now or formerly of Margaret E. Garver North 7 degrees 45 minutes East, a dishaoe of 180 feet to an iron pin; thence along lands now or knraariy of Ray Garver, Inc., South 82 degrees 15 minutes East a distance of 136.63 feet to an iron pin; thence South 0 deg ew 25 minutes West a distance of 181.92 feet to an iron stake, the point and place of beginning. RAVING thereon erected a numb-type dwelling lime known and membered as 6406 Carlisle Pike. BEING the same premises inter alia which Alan G. Kreitzer and Sherry E. Kreitzer, husband and wife, by tadentare dated September 12.2003 and recorded in the Recorda of Deeds, in and for the County of Cwnbaiand, aforesaid, in Dad Book 259 page 1475 &c., granted and conveyed unto Alan G. Kreitaer, in fee. UNDER AND SUBJECT to valid buddnng, zoning, deed and plan restrictions, right of the public and others in the roads, streets and alleyways adjoining the described pretruses and easetnenfE of moord and apparent. BEING Parcel #39-19-1325-003. EXCEPTING dmeout and therefrom (if any) the premises as more fully described in the following deed: NONE PB18lt!IM "G° ALL THAT CERTAIN piece, panel or trail of land, Hereditame nts and Appurtenances, Situate in Silver Spring Township. Cunibaland county, Pmmylvann, bounded sad described as follows, to wit: BEGINNING at an inn pin, said pin being the Na dmat earner of the Garver Tract No. 1; tbeooe South 43 degrees 30 min, lEast 150 feet, mono or less, to a point new the bank of & dam; thence South 78 degrees 45 tith ter West along a new wine fence 143 feet more or less, to a post on an old farce krone; 6e110e long an old few lice North 67 de gro145 noututes Weal 230 fast to a post on the boundary line between the Garver Trot No. 1 and the Charles Weary Eahte land; theca along the Weary Estate North 79 degrees 15 minutes East 251 feet, more or less, to an iron pin, place of BEGINNING. GRANTING AND CONVEYING to the Gtantm his bobs and assigns, a right-of-way over the abandoned Township road on the South side of the Silver Spring stream BEING @re same premises inter ilia which Alan G. Kmitza and Sherry E. Kmitzer, hu diaad and wife, by indenture dated September 12, 2003 and recorded in the Recorder of Deeds, in and for the County of Cumberiaod, aforesaid, in Decd Book 259 page 1475 dec., granted and conveyed unto Alan G. Kmitaer in fee. BEING Parcel No. 38-18-1325-005. RRGENCy t u J EXCEPTING thereout and therefrom (if any) the premises as otorc fully described in the following deed: NONE CARTER TRACT PREMISES A ALL THAT CERTAIN lot of land, hereditaroents and appurtenances, Situate in the Township of Silver Spring, County of Cumberland and State of Pennsylvania bounded and described as follows: BEGINNING at a point on the Northerly rigid-of-way tine of State Highway U.S. Route 11, the Carlisle Pare, at the Easterly line of land of Silver Spring Theaters, Inc.; thence North 1 degree West along said land of Silver Spring Theaters, Inc., 200 fed to an iron pin at the Southerly line of land now or late of Donald L. (ate , thence along said Cuter land North 89 degrees East 441.19 feet to a PK maul on the Westerly line of lands now or late of Ray G ver, Inc.; thence South 5 degrees 27 minutes West along said Garver lauds 201.27 feet to a point mwriwd by a PK nail on the Northerly right-of-way litre of Carhde Pike; thence by the latter line South 89 degrees West 418.58 feet to the iron pia at the place of BEGINNING. CONTAINING 1.97 acres and being lot number 2 oa the final subdivision plan for Stanley Armitage approved by Supervisors of Silver Spring Township on Septanber 29, 1976, duly retarded in the Cwnberland County Recorders Office, subject to a nSht-of way along the Eastern boundary thereof 30 fed in width for the common use of the parties entitled by prior recorded conveyances and of rho public as WkAicd on said Phu. BEING the savne premises which West Shore Public Cluny Association, a Pemnsylvsn. non-profit corporation, by Indenture dated June 22, 1981 and recorded in the Recorder of Deeds, in and for the County of Cumberland, of resud, m Deed Book L29 page 627 dec., granted and ccaveyed unto Donald L. Cuter and Marian E. Carta, husband and wik, it fee. BEING Parcel #39-194608-004. EXCEPTING therecut and therefrom (if any) the premises as more fully described in the following deed: NONE I 7'T?i , i ALL THAT CERTAIN lot of ground, Handitaments and Apputeamcea, Situate in Silva Spring Township. Gmubedand County, Peorsylvwd&, bounded and described as follow,: BEGINNING At a point on the Easterly Inc of land now or formerly of Silver Spring Theaters, Inc., said point being loosted 200 fed measusd Nordnrardly along said Im, from an imn pin at the Northern tightof way line of the Stale Highway. US.Roft 11, the Carlisle Pik-; dMM North of degree wee alotg said had of sulva Spring Thaws. Inc., 479 feet to an ion pin on the Soutbaly lice of bud of Ray Guuver, Inc.; fbam by the latter land, North 89 dqP= East 495.34 feet to a railroad sill. thence by other land of Ray Garver, Inc., South 05 degrees 27 mim West 481 fed. more r less, m a Northwardiy front the said (glide Pure, and along other property of Staley N. Armitage, 445 *,t, more or less to the place of Beginning. BEING the same premises which Commonwealth National Book, Executor of the Will of Stanley N. Armitage, by bidenture dated May 6, 1997 trod recorded in the Recorder of Deeds, M and for the County of Qmiberlend, aforesaid, in M wdbmaus Book D27 page 781 dec., graftd and conveyed unto Donald L. Gates, in kc. TOGETHER with and subject to the right to use the private road along the East part of the pawns dearatlrod in the deed above referred t as ad fofthin agreement dated Februay 8, 1954, recorded in Misallerwous Book 106, page 85. BEING Pavel #38-19-1608-004A. EXCEPTING Iheteout anti therefrom (l(any) the premises as more fully described in the following deed: NONE RMENt: v s CFNT ra LKMMLB- PART 1 - SITE PLAN OF SHOPPING CENTER LAND All sit 111 t ,; tttttttttl silk ?,{? ?•,? ? ! ?? also flip 11 111pol I I I /, \\ 1 o??io?????aa?or 250?vi +nw? RF!(3,ENCV ?? j?/sue ?1'1arl? ` 9 f 1 I 1 I 1 I I 1 , f 1 N aMAL qj I CRterr ee PART 2 - LEASING PLAN O_ Ix 1 N 0 cr CO U) M. E ? N ^ C a.. y _Q Q r ya c cco c • v ?• Y Ob0 h a it wN C02 i t I•? r t O O o s 75 b V M e ;? z rd e c 0 !1 Z i d' all fit if's 's. r b t ?]7/tnaa?a?soaoa?safo?}}lY3/OG ht and 7 u am RF:GENCv CEWFPc a1TM now EXHIBIT c RIPTION OF IMNAM WORK AND JMK TO BE PERFORYE? BY LANDLORD )):v A. Procedlxe for the rati Approval of Working Drawings and Specifications. Uac a !L ? Tenant shall, wkhin date of exembon of fills Lease, deliver to the Landlord to its review and approval two (2) sets of drawings and specifications for the TerarMs proposed knpnovements to the Premises. One set will be retumed to the Tenant and one set will be retained by the Landlord. Such drawings shag consist of at least a are plan (if sitewok granges b Wkiss. paving, landscaping, mechanical. electrical. or plumblg systems att. are proposed), a row Plea, and exterior building elevations (d any nwdficadors am proposed b the storefront or exterior wale) done at a reasonable scale. which will convoy detall and wKsrM, as wok as an indication of color selection and graphics. SWmkwM eevations shall Include specification of mWeriels and color scheme. The following corxations, as applicable. are to be dearly detailed on the drawings: Ne fool aP3 ?s. imkAhV plunli ft penehatiors for vent stacks. or any modifications to New equprthant (satelfile dishes. HVAC, etc.) Installed on the roof Underground udky changes and iravernent dernoloorVreplooement Modifications to exterior wags to i>Iciude new door, windows, finishes, etc. Anylhig to be "curried on the exterior wake: Charges to electrical. water, or gas service Changes to the concrete floor slab Grease trop bca*m H Landlord does not. within fouteen (14) days after receipt of the Tsna S pntimknary pion, indicate its disappoval, the earns shag be deemed approved. However. Landlord shag not be reapom "o for items noted or interned to be bm*hed and installed t!y Landkud unless is apemTcafly noted in Paragraph a o EhdhihM C•2) ? ? aY?V?r+,vl't to ?y:t oC , ? /y I Tenant fake to submit ifs Plena and spea'Rcarrr---•••tiions within tnaa? period provided In Paragraph t, the Landlord may. at Its option, in ofller rernedies for Tenant's defauk, have the We right to cancel tale Lease Wth- . kxkdgsncee granted to Tenon ohm not be ooiatnred to be a waiver of the provisions of this P*QFVOL Time is of the essence of this agreement. Tartan shall have access to charge locks upon Landlord's receipt of two (2) sets of pans, M aCWs Insurance and TermWs acceptance of space. Tenant will pay coats of lock charge and mist make appoint nerM with Landlord. Landlords Worn. LANDLOfW HAS NO OMIGATION TO PERFORU ANY WORK WITHIN THE PREMISES OR THE SHOPPING CENTER t1fI.ESS STATED IN EXHIBIT 'C-2'. C. Tenant's Wok AN not specifically desabod as widkiras arid shall be performed in igntion in Exh c-2• shag be the obligation of cola cast of T accordance with +approved plons The following work shelf be at tae sole s m col tlhe Tama and and specifications and shall shollti be e subject ct to the approval of the Landlord, mien otherwise expressly sly provided ormi: therein: t. Fumibxu and Fudures • all furniture. furnishings, trade fedures and related parts, am c which shall be new unless otherwise approved by L.andirva 2. Focus and Equi wd Connections - abcbk:at and mechanical co inecdon of sit merofteradisirg, iOhHrg. floor and wolf fiimiirw or equtprtnerrt and relabd parts. indudirg kitchen and food service equipment and other eq orient powriar to Tenatift occupancy. Ouldoor seating plan I local ordinance allows. 4. Approved Fee Protection Devices - approved tike extigui:fnrs or fire protection devices in size, We and quantify twotighout the Promisee as reVW by cods and standards of governig Insurance rating boards. SIMON ra will be a had of the L nfe work 5. AN Signs and Graphics - the design, irw k &m and location d d signs, exit sips and Teener es cy kghli g. LWKUd mast ethprove ag signs prior to any iratdadan. SWOP wi be solely ?esP011s act LaioLandlord will not be respora Tarawa ooneacoor or sc lble for oornpianoe with city ordnences or kebls for . 02127/0+eY •- ?'e7?}?yafi6 U LcrAIS&vt UISM7 MEW Y rsxrswk. CEM'ERS XMIS §W. Show Window Backgnnxtds - all show wtrtdow backgrounds, show windows, show window floors, show wMM callings and show vrirtdow lighting installations. 27-4• Waft and Wall Finishes - al interior partition wafts within the Premises and all finishes on waft. including ptaci g the fishes and instal" the Yts &bon on and within the partitions erected by Landlord. 888 . Doors - of doors and hardware wom the Premises. Service doors to exterior are provided by Landlord. M4 -f=loor Coverings - all floor coverings and floor finishes. I ? }. Werior Final Finishes - all interior painting. papering, paneling and decoration. -- of tefefahene serviee: skisile of is FeRWFed by Code. 45. rodmins ce- -11406 FFOU61 be Wild ia of building. D. General. 1. Landlord. Tenant or utility oompany shat have the right, subject to Landlord's approval, to run utility lines, pipes. roof drainage pipes, conduit, wire or duct work, where necessary, through attic space, cafurnn space or other parts of the Premises, acrd to maintain same in a rnanw which does not interfere wnecessa* with Tenanrs use thereof. 2. The Tenant shall prepare all its plans and perform all its work to comply with ail governing siadrtes. ordinances. regulations, codes and insurance rating boards: take out of neroesary pemmls and obtain cefificates of oorxrpanxy for the work perfoirned by Tenant - all subject to Laridlonts approval. Tenant shall further pay all utffy deposits and government imp" teat. 3. The concrete floor will be designed to a support a uniformly (robt uled load. Should the Tenant desire a heavier loading, Tenant agrees to pay the cost of engineering and the cost of providing such heavier loadxtg capacity. 4. AD work done on the Premises by Tenant must be performed by licensed connectors approved by landlord. Tenant's cartradom shat be ne**W to waive ah hen rights against Landlonrs Nterast in am Shopping Center. 5. Maters - fi. Tena_ro has po :mini,, of ? andlo ` to baLd a grand ti nino event. o?i:»ov?_ _ - ez}tlaalac Latird2rrrnvm RFXi1i Ncy IRZ7IAL CEN FRc 1' Cl Q Z H co W C7 Q Z C3 ?% 19 7 a Z _ 2 r + V W = J .ENCL. R? 3 I s t? s R ? o ?R R •? a u °c N N .a O .? ssoao?so$ f ??n?S N ? ? x r ? c?00 O MIT K 4 0 < mm q 3 I 0 r w 0 ¢K F F t o? F JE f C2} N s r [4[a J Rl' Y / CENNTFR TERS IY_V/ N Y ? w ya? w ? E 95g FL o " .bz Jn ; jr ? • .n M _ ? i ? ¦ b lp! Y h I-A ?sg3_ 3 ? C 1 p? C GQJ m _W .r. 0 E 6 r a 0 C e? F t V J Raa o a CFNM..R c <Ec y t ? ? 'O?Ryi 3 0 « y s? ? SC6?$E?S°v?i 02 zr, 3 hO y ,pp y c O $ Sias C ism ?s 5- 14 -gIi,?? ? lo 12 q. ILI Be- a ? •?? ? ? ?? ?? a ?? ??'' .? h su€? z p a ? CET??1? g 5 a z 0 « S 5 R zJE KO$ e 0 `o a C 06 p T e Sri p r 0 ? ? X 3 ?3 w y w 3 ? a ? ? w ? ??ocs ctl •? 5 E L Ir g E Y M ? C ii ° r a ?j , 3 Sri b • h w To fig, E T CENTERS v y :3 r n 5 w 3. F gs? Z s R a R t 0 R vi R? i; 3 w a n VC YEr?° b Ti V r g > Y Vr '?QCj p a y _C BE 9 v t7 3i ? E Y a. Tw 0^ IN E m 21 ral s _ gag - 8` 8 K e:1 3 a E n a H CENTF,Rc I J N P- t W 3 z Y S i F Y V ?G S? 3 a I 0 ?O N C ? .47 Y ? e ? V r ? ? eis Sd v ?? S 3 4t y[ a o o pQp b y Y? .' C C Q ' O 'j ?? d? .Z? Te w'7 ° g ri?? u ti u s •? g ?, O? C .u X FS ?p y c c all 1 43 c .2 py w gu 94 in V11 cr S •+ N N, v h ?C Cz .6 W a O Y O ?••-•Pl wi 'R g W fV F 3? C? ? H??? O _ _ a ? 777 S e p 7 ? Tb g ? J i o (T.M F.R M a a ? ? yy a N ? J ? Q B0 Y 8A od d r; ^" !•? Nf e N BOO f` ad C: O^ yl_? . r s 5 z s t a? Ig t ? o o g ?o C a ° m 8 o N N R u a v y 01 M -? ail }? yyr+ Q .Q .jp? x =o $ 11'O ? - mum 07?}§3{t ri ori 16 C4 06 CK Y F.RC 4 W . Of 2 D D? ¦ R o i ?K ?g 0 It 00 o .? o « as U €€ a? ? a M, ??•g? Si oq e . Y yx? A-. gdg 5 ; • . •C E: ?Ni« r0 f c _ ` ; .H s M ? •_ c W < ? ? eV T p r as ? CJ ? 'x ?qq vp? X K s? Is F?too .? V ? a C ?`-,? : s 1y? " O C ? ? Y a w O L 60 C s-w ?N C ? i ? O? ` e KIM $ ?a 3,0 g s? W?Eu 4?.i6'? FY ga `? c s ° b Iag j 5PiF -9 7 yp +.? _ f«a? « '? ? rJ ?" C p• IZ em? d'a y a g Rj a F 4 M ? S I 1. C4 CFW.rFR c v 5 0 « « ys 2 R C r a l§ t a 0 0 o? u q E « _. E < 1? 1ri = ? ? ° ° ? H C ?? 2 E3? ? ?SS I ic- 6a C O p a V O V V w? eEE {Z!' IS ! 1 ga Q 1$ .- N Y C j ¢7 1 p a o• '? r O C O ? E -12 ?;$D Rpg mcR x<5?a o _ C14 C.Z. 01 O M 0 0 s 3 5 a 5? a ILI It I C ? I y ? K Y g _ 8I - zap E_ g? 14 s1Z_ Iva a A 54.1=ci 2 3 Hit • H %d t- .d r Q kr S 3 r ° w t 0 4 R? t ? T ?R ?i t R? ?s 0 0 0 CFMTFltC Modified Exhibit C-2 For Hollywood Tan Regency Centers Vanilla Shell October 4, 2006 This work is to be completed exclusively by the Landlord at the Landlord's expense, according to the Landlord's specifications. Any changes made to the Landlord's standard specifications initiated by the tenant will be at the expense of the tenant. Layout & Construction 1. Demising walls shall be either 3 5/8" or 6" metal studs, non-insulated, with W fue rated gypsum board to roof deck; aped, spat led and sanded. Back wall is unpainted block. 2 Roof system shal l be a single ply ballasted membrane roof or built up roof, to be determined at the Landlords discretion 3. Storefront shall be 1/4" thick plate glass in an aluminum frame with 1/4" tempered glass in doors and as otherwise requited by local codes. Storefront shall extend from floor to a height of 10. A single entry door will be provided. 4. Rear service door(s) shall be provided, providing that the qmm depth exceeds 50'. Service door(s) to be 20 gauge painted with building standard hardware to include lock set and storm chain. Standard Fhnishes 5. Mom;, All floors to be & minimum of 4' thick teinfaaed concrete with a poly vapor barrier. Concrete floors to be smooth trowel finish. no paint, hardener or scaler. 6. KkM_ m: Ceiling (id- 0") ten feet in height, 2'-0" x4'-O' non.combustible lay-in acoustical veiling tiles. 7. thiN&A , Landlotd to provide sue (l) w" roots, or a"tioml as requited by code, ventilated, with one water closet , one lavatory. one drinking fountain, one mop sink and hot water hater to meet ADA and local codes. arx;E?-tiCENTFRc 8. Heating. Coa&L VesslikOon. Landlord will provide a combination heating and cooling unit(s) complete with duct work, diftrsers and tbemnostat Cooling design shall be based on the minimum acquirements set forth by the American Society of Heating and Air Conditioning Engineers (ASHRAE) andror a minimum of one ton cooling capacity perms square feet of sales area. 9. Fire P p: Landlord will install a complete automatic sprinkler system (wet) for the demised Premises, as nxpired by local govenaing Codes. The design of such system and the number and location of sprinkler heads to be installed shall be in accordance with the Landlord base interior design Any modifications to base design required by Temmts inferior design or proposed use or oocupancy shall be at Tenants sole cost and expense. l0. Medried Pow.r. ftwar-twbe individually me6w, W by the local utility compamy. L.amdloed :Wall provide one 2 cu=#. a amp Panel. Convenie ice outlet (12W208) will be provided on the side perimeter walls, two per side wall, four total. I I. jh*gfmr: Laodtofd will provide one (1). 3-lamp. 7-0' x 4'-0' recessed fluorescent fit tune with acrylic lease per M square feet of sales area. Unaut to provide wiring to meet signage voltage requirememts. Connection and wiring for the sips by leant. Toilet room to receive a combination exhaust fanllight. Exit signs and etnerpatcy lights will be provided per local code. 12. Telephone: PVC conduit stubbed out at tsar wall adjeoent to electrical panel. Tenant to provide all wiring, ids, connections and equipment. 13. TersdW Sienme, Landlord to provide conduit (rots the beicloide of the sign band to tenant parcel and tithe dock. Landlord to provide )-Box. conduh and turner. Tenant to provide actual bardwinn& signoae and installation. 14_ Stare A-Aft g l earerw Landlord to provide pemumta, specified, uniform guise identifying number did will be attractive for the We of the project Rr'fiEN('} t'EM'FQ c - EXH18fT E REQUIREM1ENTS AND RESTRICTIONS Tenard: 1. will not, without Landlord's corment, oondurt or permit to be conducted any auction, fire, banlaoptcy or going-outof-business sales, or similar We sale. in connection with the Premises; provided. however. that this provision shall not restrict the absolute freedom of Tenant to determine its own selling prices nor shag it preclude the conduct of periodic seasonal. promotional or clearance sales: 2. wig not use or permit to use of any apparatus for sohlnd reproduction or transmission or of any musical instrument In such manner that to sounds so reproduced, transindled or produced shall be audible beyond the interior of the Premises; will not uNn an advertising medium within the Shopping Center which can be seen, heard or experienced outside the Prenhisee, including. but not limited to. flashing lights. seardithft. loudspeakers, phonographiii, radio or television; wig not display. point or cause to be displayed, tainted or placed. any handbills. bumper stickers or other advertising devises on any vehicle perked in urn perking area of the Stropping Center; wig not distribute, or cause to be distributed. in to Shopping Center army handbills or other advwdit devices; and wig not corhdtict or permit any activities thal might constitute a nuisance: 3. will keep all mechanical apparatus free of vibration and noise which may be barmcrnifted beyond the confirm of the Premises; will not cause or permit strong, unusual, offernNve or objectiontsbW noise, odes, tunes, dust or vapors to emanate or be dispelled from the Prerpsss; will not bum trash or store or permit aoamwlations of any trash, garbage, rubbish or other refuse outside of the Premises except in compactors or other rerepitades approved by Landlord; 4. wig not load or permit the loading or unloading of merchandise, supplies or other property, nor ship, nor receive, outside the aree and entrance designated twrelor by Landlord from lime to time; will not Parisl the parking or standing, outside of said area, of tnhclcs, tracers or other vehicles or equipment engaged in touch loading or unbadYq in a manner to a aerfee with the use of any Common Aram or any Pedestrian or vehicular use and good shopping canter practice; wig use its best efforts to complete or cause to be comp Bled all deliveries, loading, unloading and services to the Promises prior to 10:00 am. each day; 5. will not paint or decorate any part of the exterior of the Prorises. or c aflg s the ardhiacpral Veatrmem Oueneof, or Instep any viable proteoMre devices such as burglar bars or security shutters or wirtow tinting, without first obtaining landlord's written approval; and wit mum" promptly upon order of Landlord any paint, decoration or protective device which has been applied to or installed upon "exterior of pre Premises without Landlofs prior approval, or twice such of er action with reference Stersto as Landlord may direct 6. will keep to inside and outside of all glees in the doors and windows of to Premuisee dean; wig not place or maintain any merchandise, vending machines or other articles in the vesdbuls or entry of the Promises, an the tootwafks adjacent thereto at elsewhere on the exterior Iheeof; will nhsinhtahn the Pmn*m at No own erpehse in a dean, orderly and sonillary condition and free of insects, rodents, vermin and other pests; and will keep refuse in proper containers an the interior of the Premises until removed from the Promises; 7. wig comply (at its sots cost and epertse) with ail laws, rubs, regulations. orders and guidelines now or hereafter in tome relating to or affecting the see, ooc pancy, ageabon or inprovarioni of the Premises. imclydig paw roods (Laws") and will not use or permit Ole use of any portion of the Promises for arty unlawful purpose or in violation of any recorded covenants, conditions and restrictions affecting to Shopping Center; 6. will not ppiaoe, permit or meihfain on the edWrior walis or rod of the Post. hises any sign, advertising matter. dooorvift% lettering. Insignia, ernblens, pademark or descriptive m clonal (heroin called `Sighs) and tNf rat permit any Signs to reinsh or be placed on artywirhdow or door d Ina Phehrhlees union the sacra ham been approved in writing by Landlord; and will maintain any and all Signs as may be approved and fob two do arid after five (5) days' notice runt Lani:llont Tenant the tight do so le lies that erp t it will If that il install its Teapproved Signs within thirty (30) days from date of possession of the Promises; 9. will keep the display wirdlows in the Premises alooWcally lighted and any and all electric signs lighted doing all other periods Oral a naprity of t nwft are open for business in the Shopping Center, and 10. will not use the sidewaft adjacent to On Premises, or any otlnr space outside of the Premises, for pre sate or display of any merchandise or for other business. occupation or undefaldng. oz 2?iav ?o??itc J L W2M,i 1115ro7 RMJENpC? >rrrsu CEWFR c mmu EXHIBIT TENANT-S hggPROVEMENTS in no event shaft Tenant make or cause to be made any penetration through any root. Poor or exterior or corridor vml without the prior written consent of landlord. Should Landlord consent to Tenant's penetration through the root. Tenant shall use LAndWWs roofing contractor to repair or redlash Tenant's rooting penetrations- Tenant shag deliver to Landlord a certification letter from this roofing contractor stating OW all root repairs and penetration have been made in compliance with the rod warranty. This cerfgicalon is required in order for Landlord to release any Tenant Allowance rnonies. Tenant shag be responsible for any and all darnages resoling from any alteration, addition or charge Tenant makes, whether or not Landlord's consent therefor was obtalned. Any and al akera dons. additions and danges made to the Premises which we consented to by Landlord shag be made under the supervision of a licensed architect or licensed strummal engineer and in accordance with plans and specifications approved In writing by the Landlord before the com rnenosmerd of the work and all necessary 9entel approvals and permits, which approvals and permits Tenant stall obtain at jts sole expense. AN contractors and subcontractors utilized by Tenant stag be subject to Landlord's prom written approval. AM work with respect to any aloredons. additions and charges must be done in a good and weAenarike manner and diligently prosecuted to oomhpbNorh to the and that the Premises shag at all timee be a complete unit except during to period of the woAL COMPLIANCE WITH LAWS. Any permitted changes. alteration and additions made by Tenant shall be performed strictly in accordance with applicable laws. riles. regulations, building codes and safteduwl review, boards relating thereto iruluding, without lithgaton, the provisions of The M d the Arnsrlorns with Mabitiee Act of 19W. Tenant stall have the work performed (Q in such a manner so as not to obstruct the access to On Promises or to the promises of any other tenant or obstruct the Common Areas, M so as not to interfere with the occupancy of any other tenant of the Stropping Center and (lid) at such times. in such manner and subject to such rubs and regulations as Landlord may horn Torres to time roasorafly designate. Throughout the performance of Tenant's alterations, Terart shall obtain. or cause its contractors to Obtain, woAws Ocmperaation Insurance and co wrwdal general liability insurance in form and substance satisfactory to Landlord and name Landlord as an addlgaW inured twrsunder. WSURANCE AND R -ONSIRUCTION. In the event Tuuarrt shall nuke any aksraliora, additions or flanges to the Promises, nova of such alteration, additions or changes reed be insured by Landlord under such Qaunance as Landlord may carry upon the lwndiord's Building, nor shag Landlord be required under any provisions of On Lhasa o recd stroct or reinstall any such aheralons, additions or Barges in the event of casualty Was. it being unclersood and agreed tat at such alienations, addiiore or charges shag be insured by Tenant pursuant to Article 11 and reconstructed by Tenant (at Tenant's sots expense) in the event of a casualty low pursuant to Adtide 12- ' 02/]7/97?i?Yi{p6 Jar W9rd VISM R Fc'Elyo. DWITIAL ?FhIT'F'R c '°° F-M BIT G EXCLUSIVE and RESTRICTED USES Landlord shaH not penmt any person or entity other than Bast Buy (or Bat Buy's parent company, &tEdiates, assignees, sublessors and assigns) in space leased directly or indirectly from Landlord adjacent to the Shopping Center, to mall, root, service andlot warchome (and, if applicable, install in motor vehicles) the following product categories (the "Protected ]terns'): electronic e"pmcm and appliances (ineuding, widim hnzutmm televisions, nannies, radio and DVD and video machines]: major houwAmM appliances (mchs&ng, Without tismtuioay eefiiganmss. fieexem, stoves, microwave ovens, dishwashers, washers and dryers); pmmw computers and peripherals. computer software; car radios, steam s, tape decks aid phones; i matainsom software, imledi e compact desu, music vidoos. DVDs and premcotded tape: accessories and connectors for products sold by Tom mm (iocbd-& without (imitation, able Conneetoa, surge F-ct-% cables, wirer and bmtmrm); telephomrs, tlecopy. f cumik and pbobcopy machines; pbooognphw cameras and equipment; office egwpmeK supplies said tanimm; books and magaamm; sporting equipmem and related itor s. " any substitmes for or am which we a technological evolution of the forogoiag ihm; andlor any other rdaged itense, wtlbout Temsot's prior wriuom eoosau, which tray be granted or withheld as Tonam's wok and *bank& dmmbm The foregoing restrictions shall not apply to any of tha following retailers: (i) Rose Deems for Less and its corporate at5liatis and related companies for so bog as it operates primarily as a discount cledriog Mailer; (it) Bed, Be* Beyond primarily as a housewares retailer; (iii) Office Max for so long a it operates primarily as an for so offlone king m4VAY as it retaileoperates e:lath mark r; (iv) Tl Manor, Soinmmut or Honvsgood% far so long as it operates prinswily an a dleco t as disewnt or doperumm store as W .Mart, x-Mart, Seas or Tin"), Woolesale club ieg a ; {v) arty emmem, Sam's of 81's Warmhouse or borne ' tmt whol (such h an improvement store (sorb as The Hems Depot or Lovrm'a Home lmgeovemnr) OCPV mg seventy thOusu d (7000) square feet of more. (vr7 any supermarket atom operator occupying twenty- five thousand (23.000) square feet or mom; (vii) a smional book and magazine mushier (mKh as Borden or Bamm k Noble) for so bqg as arch reveler operates pnuwily as a national book and tosgnsise mbr7or, (viii) a national sporg goods retailer for so long as such retailer continues to operim an a m idoanl spoetirg good reta(ix) a national or m pond toy som having rest lent than Hftem (15) other stores open and opmalhtg wiehio the coney for so long as such retailer Camtim mas In oI e , pd mrs'ly as a national or regional soy some; (x) tae (1) video Meld slam for to tang an it Continues o operate primarily as a video metal seam; or (Xi) toe (1) cCGWW pbow sore occupying no morn than two tlromamd two buodmd (2,200) sapeae feet bated an die sixty (60) foot portion of Bwlding H in Unit 03 closest to Unit 01 so long a it caotiam to operate psimanly as a odhdar phone atwe, or (rci) the 'Incideonl Salem" a be einaAer defned of all or soy oombination of the prokcrod Items. For the purposes of this Article 30, "Incidental Sales" shall be defined an the sale of an or may combioatioe of the Protected Items by my tenant or omgm m of the Shopping Center Gran an sues ant to exceed the leaser of (y) nom thousand (1,000) square feet, or (z) five peocxm (5%) of airy t mmant's or occupant's, space at the Shopping Cams. inclusive of ace-half (l/2) Of my adjaeaot aisle space. IN addition b die foegain& Teoam shall have the right to (a) all gourmet and other momI erishabie food lama wither up o three hundred (900) square net of tie Pmmisem, in support of and iocideaW to the bregoiog product categories, and (b) me up to are thousand five hmd and (1,500) aquae foot of tie Premiaem for a 1000-2100110fie beverage bock a bar, including sariag was, with God. snack amid bakery items ioacidoghl theme. -1-and lord," for purposes of this Amick 30, shall be ddhued to include Iaidioed, and (A) if Landlord is a corporatio4 its principal rhaadholdem or (B) if Landlord a a partnership, ib psbmrs ad my peuaeipal shareholders or Partners of any patm which is a Corporation or slmeholdw. or (C) if Landlord is a trust, thc bowAciariem of any such taut, including the priocipai dms norm or partners of my beneficiary whkh a a cerpomtim or east, an of whom shall execula an agmernmt to be bound to this Article 30. In me evwt shall Tenant be leoumd by my exdmives granted by Landlord aabfequem to 6e execution of this Lane o any other party or eeehgaat wiWout Tm-es prior wriuem convent which my be granted or Withheld in Temsm's sole: amd abmbm disexmtiom Nolwi ng anything o the contrary act forth in die foregoing, this pamgtaph sball sot apply to Advance Ain; Prnviekd, bvwgvw. !hat in die evbsd Landlord's comment is required in order to permit a change in Advance Amo's me:6 then Landlord shall sot provide wach cannot if lbe proposed me world violate than Article 30; fimlhermoro, in doe evam Lndlotd regains powenion of tie Advance Auto ptemius, such premises shall be subject to this Article 30. NAME Landlord aballmot allow any portion of the ShdgM Cogger, other than the Tager Panel, isebading any lard owmd by Landlord which my at any game in die !beam be added to the Shopping Camp to be wed ae a supetmalm or other business; engaged in tlhe male of food for fit-premises commhWlion; a dmg sore or Piararcy, mmW b the extent that a pharmacy is operated as a depaosem within a discount department seam a warehouse Club acre nigh a Cwko or Bra; a s pmea x mek as a Wei-Mart Strpmeasgeti L#Aut,Supacstme or a Target Saps eemr: a comemience slum such a a WaWa or 7-11; or a pisses or submarine sandwich store limb erg Little Cancer's or Subway (heaeinilba tmfarted to as "ProhNW Uses'). Notwidasrading agrtthtg to tae coo aty in dds Lane, however, die ask of foods, including p qMW and noaprepaed foods, samck foods, bevmrsim and the 6114 by an occigam of amodur atom at the Shopping Conger inddmW to rich omtpam's bus ma4 provided ghat the phis space dew to such ift m does mot emend 3,000 sq=rc feet and a sit-down restaurant having akwit savor " sot be deemed a Prohibited Use; Provided, fen foregoing metrictim shall mot apply o the Target Pwo& h0 addidom, Laodbod shall am we or surfer or pextait to be used for a Pimhbiod Use any portion of nny odw property within a radius of 5.000 feet of >he Shopping (`,mar which is dimody or indirectly owned or controlled by Landlord or by one or more iodividmab who directly or indirectly have an ow0entip inttsest in Landlord. R r?(;ENCy - l - CENTFiR c lansthora Steakhoase Subject to any order of a bankruptcy court having jurisdiction or dha judicial deocrwimeioo by a court having coarpetem jurisdiction that the exclusive is unenforceable, doting the Term, ! essor shad not allow on any other parcel or other property now or bereioaRa connected to the Shopping Crater sod owned or controlled by Lessor the operation of any other full service steakhouse restaurant sundar to Longhorn Sftd&ouse imehsdmg, but awe limited to. such steakhouse restaurants as: "Chop House". "Low's Roadhouse". "Law star steakhouse", "Outback Stealbarse". "Roadhouse Grill". "Ryan's Steakhouse", "Sailebtush", -Wtgmu Steaideouse". "Sizzler", "Sntobcy Bones", "Steak end Ale", 'Ted's Montana Grill", 'Texas Roadhouse. 'Texas Stsaltbomse", "Trail Dust Steakhouse",'TumbleM'eed" or such similar steakhouse munram concepts. In addidoa, a *pd to the Isms of any leases affecting an& property as of the dam bemoC during the Term. Lessor shall not allow on the adionew property presently coutaming the Advance Auto Farts State (as identified on Rahleit "A" to this Lase) the operation of (i) any restaurant use camai®og mote tbam 4,Ot)ll square feet, or (it) any restaurant use having sit down service. For purposes of this Section, "owned or controlled by Lame shall include property owned directly or inf redly by LosscK or property in which one or more of the shareholders, members or partners of l essoc holds a controlling interest. Notwithstanding the foregoing, the above steakboue rosawhoa shall not apply o due following paeeeb: Unit 01 and Unit 112. Lessee acknowledges that lessor will have limited control over those parcels not owned by Lessor. Landlord shall not, for so long as this lease remums m forts and effect, either directly or indirectly, lease to any third pawn any land or bw'id'ms, whether presently owned or herealka acquired, within two (2) mile(s) Bonn the kated premises for the purpose of oooducting daemon a business similar to flat berg conducted by Toomst (Le, Advanced Auto) upon fte leased premises, air 69 IAndlwd itself nor any of its individual stockbolders, partners or bewficiadss, as the can any be. either directly or indirectly. own or operate my such business within said two (2) mile(s) radius. Tenant shalt use the leased promises only for the purpose of operating and conducting distant a business of the type awdected by the dam of atom operated by Tensor, which is gerueraUy the sale of automobile pant and accessories, including rim, batteries and wheels. u?j During the term of this 1.ease, including any and all Reanwal Teems, except fur Tenant (i.e., Chili's), Landlord don ant allow to operate on or in tie foe (4) pad riser berated in Units 05 and 06 (the 'Restricted Area) another sit down restaurant with waitedwwimem advice which bum () serves alcoholic beverages and (f) tbstems a Draw typically offered by an American Will and bar restaurant (collectively. me "Protected Use) such a% for example r4poses only, APpiebee's. Be -sm'a. Clheddarl. Dumoo t, Houbhars. Max A hose a. Oxbwloys, Ruby T-dry'e. Red Robi k and T.G.I. Fridays. The fbaegoiug Protected Use restriction shad not apply to Lsodlord's lesishg to or odoeswise permitting to operate in the Crater any of the following: (1) any 'fast food' or simiLr t such s, but not Limned to, a Burger Ring, Md)ooddb, Carfs Jr., Click-Fl-A. Subway, Two Bell, Del Taco or Weadys; (2) any bakery or coffee shop of aimihr business such as, but not limited o, Panda Bread, Starbuchr, International Howe of Pane", or Denny's; (3) my knout or oeupuot whose principal business is dot of a depur, same, junior department swore, variety store, or specialty mss1 (4) any grocery same or rnpermrrket occupying more tom 40,000 square diet of grow humble area; (5) nay emoic or specialty sustamaat such as. by way of example only, rod sot hosed to, Mexican (which shad be permitted to serve faji eal German, bet ue, Chhimess, seafood, umldoun. chop home, eoicluen barbecue or olhrr mrdor ent with a specialty menu or featured food ism -ck&i& by way of example only. Olive Gurdm Rod Lobster. Outback Stakhouse, laaghom Steakooore, Lone Star Ssaldaouse, Blade A ftmu4 claim Jumper, Miners Q N. Trail Dust Steahd,oese, Ryan's Swklouse, Golden Corral. Sizzler, CSackmr Domel, El Torino, M Trio Grid, Ceevys, On Tire Border. Caxymd's. Ac ptdco% El Chain. and El Ruchio; at (6) any use one or oo any portion of the Cater after tam the soldered Area. Landlord agrees mot it will ant consent to a change in an of any promises in the Cenfa retaking in a violation of TemaCi Proftelld Use. Ron Sly No am m or occupant of the Shopping Cooler [other &an (i) Tenant (Le, Roos, (u) Target Cwpon im Wegmam Food Markets, Inc, Chili's GM & Bar (Bddwc Isom Trot, Longhorn SwWdw ss (RARE Hospitality International, Inc.) and Advanced Auto (eotlectively, the "ExieBtag Teaats') and dheir nsI , 9vo succrosotam-i iomr , provident, tut each Bpstmg Taiaot operates its customary retail looniness in its peemism under net curonwy tradsumw aid m a manner onhsomtidly similar to the majority of me EsisueS Team's offer ssoruse be Persaylvmka as of the ellbeove daft of the Ron lease aid (i6) any tempt list commmes its use taller Tent di e, Ross) has "Goes D&W within the moaning of Section 15.6 of the Row lose (oolloctivelp, the Aotepe" Tenants" I provided, tent each Acceptable Tome opaus s its customary rated bommus m its pa®isea under its customary hademssne and in a =am wtbeglma ly similar to fte msjarky of die Acceptable Taint's sober stores in PeonerAvams) may see, and Landlord shall sot Issue o or permit soy other meant or occupant of Laidlond's Focal, other dim an Acceptable Tama or Bzbft Tesnt, o on its promises ft an Off Prior Use (as hwohudWr defiuWi _'IU BonWbq moviction with respect to OR'Price Use sohhU not apply to Unit Nl of rho Owppirsg Curter. Notwddtsdadvg the Someefmg, Landlord may enter into a lase with the TJX Companies for the opens do of ome (l) Montane or TJ llLatrx Store not o extend dh6ty live demand (33,000) agent fed of Lemble Floor Arm provided dot such hose specifically excludes Taunt (Le.. Ross) from the application of the coclssive is form and substsice remoanbly soaepuble o Tenet. "Off Pswe ILAW for the purposes hereof; atoll mass the retail ssb of sum's, women's and cItildroo's apparel (oollectivdY, tee "Protected Item'). an an every day basis at prim reduced from most charged by typical retskl operators, provided, however, disc do definition A4 not Prohibit sobs event of any of die Protected Items by a typical render at pricer discou m dd Bum that rdaft's every day price. As of ft Effective Daft, examples of REGENCY 2 ('ENTF.Rc Off Price Use retailers include such rcras'lors as T.J. Maxx, Marshall's, Nordstrom Rack, Goodys, Factory 2U, Burlington Coat, SteinnuiM and Filene's Basement. Notwithstanding the paragraph above. Landlord may lam or sell the whole or part of an Exempted Building (as def ncd below) to not more than one (l) tentnt or occupant occupying not Inc too twenty thousand (20,000) square fed of Leasable Floor Area and to be used for an Off Price Use ("Exempted Building Off Price Use"). An Exempted Budding shall mean the Target Building a any building that is sold or leaned to an amiant or occupant with a Leasable Floor Area of no [as than sixty thousand (60,000) square fed that is not prmrrsly engaged in the Off Price Use, provided Quit for this purpose a department store Such as Kohl,, Mervyn's or Sears shall not be doomed to be aged in an Off Price Use. Upon the oecurveoce and tuning the existence of one (1) 6xa plod Building Off Price Use, Landlord Shalt not lease to or permit Anther occupancy orby an Off Price Use, except with aspect to Ensting Teasels, Acceptable Tenon or any use occurring within Unit 01. Ile sale of Large sine (14 and up, or its egoivaknt) Women's clothing and/or apparel. The sak of office, home office, school at business products, composers and computer products, efHc e, borne office, school or business supplies or office finnitume; mobile of port" telephones or pagers: or ebctroni a (ioclding by way of cxamp thou businesses apervied by Office Depot, Maples, Office Shop W vabouse, Mardd Cbdstian Office and Education Supply Sore, Marl Baca etc, and Wakphoe): a for use as a business ngrport center, copy uxnref of "KOW typo of opaatim (all of which an bmeinaiio referred to in the "prohibited Uses"). Notwithstasdi g the bregoiN& in ao evesrt shall the provisions of this Section 22.3 prevent the operation of a Bad Bath th Beyond. Inc, More, a Russ Dross for Lens alone or a Beat Buy store. Laadbrd shall not lease, rest or om" or permit any other prNmiaS its the Shopping Caste[ or any land (the Raised LaNry contiguous or s4aceot b ire Shopping Canter Ci& without timitatioa, any land that would be contiguous or sdjtaent to the Shopping ('curer but for my iotaveoing wood, spent alley or highway) now or hereafter owned or controlled by Landlord or its Affsliala 4 to be occupied, wbolber by a is ant, sublessee, assignee, been sex of odw occspast at itself for the ale, rental or d on amber singly at in my omooboatior4 of high contained in any of the following respective enegaris of moduia&w: (a) linens and dowmatics: (b) bathroom items (mddtidmg plambing hardware): (c) housewares (excl ding I. and major appliseces or 'while goods"): (d) haggis and wall art (but the foregoing shall scot prohibit a nose that sells custom frames that are made to order as opposed to readymade fkatoes of standard rises and provided that a floe art gallery shall ant be pechded). (o) window treatments;, and/or (E) closet, shelving and ssonge Isom (which hate, aither singly or is any combination, are hereinsiker rofernd to as the "Palo m illnrs'). Nonirdst odiug the EoungoseL gal, Mum or atbweaant in the Shopping Gaoler or the Related Land shall bsve the risk to uWas its sespecOve prempes for die ale, rental and/or distnbubw of Exehuive Hems within an as aase acs (which ,hall include an allocable portion of die ask apace adl)moest to such sales, moral sadist distribution am) cwt to exceed dui hisser of (x) five (3%) pereanr of the Floor Area of sock amt's or a6teoan's preaisa, or (y) two Ihoasmd (2,000) square fed of Floor Area within suck tenant's st abtmsnt's pre®ea For anmple only, a now occupying premises containing a total of five thousand (5,000) square feet of Floor Ara could sell Fotcurive Items (either singly or in any wsabfuafim) so long as the agpegate as within its eatse des rind premises in which my and all Rubstive items are sold shall not exceed two hundred fifty (250) square feet. Fa k ft anasn of die Shopping Glaser ssnl any Belated Land (rod croon at fissure awipoes at sublessees of such seaaaI )"river holoa be ssbjea to be restrictions contained a this paragraph in dots event that (i) the lease between Landlord (or Landlord's AlBliasa) and may such knolls requires the consent of Landlord (or its Affiliate) to any assigsr next or subletting or b a change in the as of the applicable pramisa to Fertsit the sale. renal or distribution of the Exclusive [toms; or (us) Landlord err its Af l ales puarib or agree to an expansion of tine applicable premises for die sale, rental, or disabutioa of too R=lusive Hems. The restrictions so forth in the paragraph above chaff mot apply to a national or ngioml (r) depattsrm sore (such a, by way of eirample, W&Mat, Soul's, Maey's or Target), (ii) discount cub (soeh a, by way of e=,Wk, Cotten. IV's Wbolsale club err Sam's Cub), (iii) borne impepvenw t tassel (w-h as, by way of eingar, Home Depot OF Locus's), OF (r) tape®adrt (such as, by way of a> mqk Wep aw). commonly bonded is fbsw.daa ahoppimg omen la the Commonwe.tth of Fnarylvmia, sack ootaupyisg at lams arghey thwugod (i0.o00) agrare fed of Fbst Ata ttithin the napping Cemor, axoept that a sopamaimt an me leak in (iv) above is only required to occupy at teat filly thouaed (50,000) ,name lea of film Ara within the Shoppfaig Curter. The wwutsis rights 2 - , a Tenant is the we pa sgrWhs above shat! iane to the I R- of goy assignee of Tenet's intrust to the Bed Bath Lase and to any sublease of a Flow Asa of st last lesion thousand (15.000) aquae feet of the Bed Bob pseadses. To not (Le, ULTA) shall have the exclusive right to co duct goy portion of in Printery Business in the Shopping Center. and all other fts ants or other occupants of any pardon of the Shopping Gea4sr owned or controlled by Landlord shall be peobibbod fFom engaging is any I a tint of suds Poi osq Bssioss. For purposes heroot the ttxri suclmive right" shall mean any provision dot purports to rapict or proli t, at under which Ong -m r agrees that RTr(iENCY 3 CEAI'fERc it will restrict or prohibit or will cot grant the right to engage in. the sale of any product or service or the conduct of any type busum=. except by or to the party granted such exclusive not Further, Landlord covenants that it will not low any space m the Shopping Center to the Mowing tenants whose primary use is substantially similar to Tenant's Primary Business, such as: Beatty Brands, Beauty First, C.Q. Bigelow, Pure Beauty, Sephora, at Track Secret. Notwithstanding the foregoing Tenant's exclusive right shall not apply to uses associated with (a) existing scoms in the Shopping Ceder who are taunted to all such products and/or provide the services that arc covered by Team's exclusive rights, (b) tl nily bas we such as Great Clips, Fasws& Seam's, or other similar value orieeted type operations, (e) any national or regional retail temnt in excess of twe ary-fve thousand (25,000) squom fat that sells the goods and/or provides the services that ate: coveted by Tenant's exeiuive rights as a part of its normal business operations, but not as its primary use, at (d) any team or subtenant io the Shopping Center mat sells the goods and/or provides the services that are covered by Tenant's exclusive rights within an aggregate was net to exceed as percent (10%) of the Gross Floor Area of such tenant's or subtenant's premises. Notwithstanding the foregoing, Team's exclusive right shall not apply to Unit 0I or Unit N2. As used herein, the term "Twant's Primary Business" shall mean (i) the retail sale of councda, fragrances. hair case products; personal care appliances; skin care products; body can products; and other health and beauty pmducd sold in a majority of Teoaot's stiles; and (ii) the operation of a fad service hair salon so long as such salon. does not exceed 25% of the Gross Furor Area of the Premises. Guoraw Video Gam=. This exclusive does not apply to Video Warehouse, Hollywood Video, Blockbuster Video, or similar video soon. Ml?tltie.MOS Landlord will not lease in the &lu e to any tenant in the Landlord's Building for the purpose of conducting within the P.aadlord's Bwb i q as its principal business the sale of ice cream and ice cream cakes or other ice crearn (soft, custard, conventional, or otherwise) products Hain Cdearv With the exception to a find service salon that exceeds 2,000 square feet. Team will have the exclusive to operate a hair salon widga the comm. Tanning Salon Aslaen Dental Dental Services PROHIBITED USES Any fictitious gmag-out-0f-business sak, lost-ow-lease ask or amolarly advertised event; 2. Any central Isumiry, dry deamuog or Lwndomat (except shat a dry cleaner that perform all dry cleaning outside the Shopping Ceamt shall be permined, so Wog as its on-she premises are located nose than oat hundred fifty (150) feet away fiom the Premia=}. 3. Any auditoriums, mtttiog had, sporting eves, or other eaterinio weat use, except that any such other eofertaiameal use commonly fowl is first elan shopping comm in The Harrisburg metropolitan at= Any might club, disoodwque, or dance ball (eytoept as n%ddcuW to a sit shad be permitted so long a the same are boated mere than throe hundred (300) few aawy from de Promises; d. Any'Tomoguphic Use", which shag inclade, without lion - (x) a store displaying for sak or exhibition books, magi ia= or other publication eoohming any combination of•phobpaphs6 drawings or sketches of* sexual same, which are not primadly sc adfic or adtunliooa), provided, however, mat the We of boots, megaaaes and other publications by a national bookstore of me type normally located in hat-clan shopping canters in The in which me Shopping (looser it located (sash es, for example, Borders std Buss n.4 Noble, a sold story oulmody operato) rill out be clowned a "poaaogr ophi c use" hereunder, or (y) a stow offering for eshtbth'on, ask or seaW video tanemet or afloat madh m atpahk of projeetgg, tamawWag or mptoducuN6 independently or as oonjoactim win sooner device, machine or e*dpmea, as noop tar vies of images, the conlertt of which has bees aged or advertised generally ss NC-l7 or "X" or eamated by the Madoa Pictum Rating Association, or any successor theaefo, provided, however, that the ask or ronial of such videos by a national video store of the type taco Dy located us fat-don shopping cwfera m the is which the Shopping Carter is located (such as, for cramp* Blockbuster or Weal Coast Video, as aid noses carra My operate) tdsall not be deemed a'1pornogcophic use baeander, or message parlor exoept for dames sausages gives in connection with the operation oft day spa or heath club which may otherwise be patmeted under this lease; Any entering or banquet hat: -4 CENfrFR,F {N? p- ted hereunder); Any night club, discotheque, or dance hall (except as incidental to a sitdown restaauraot Any gum slop. or tattoo parlor, Any church or oil= place of religious worship; 9. Any automobile repair shop, or any business servicing now vehicles in any respect, including, with" birdtation, any quick htbe oil change service, lire cent of p wbm or service station or licility, except that my of the foregoing uses may be located on an ougm=l within Unit 3, Unit 5 or Unit 6 as designated on the site Phn 10. Any carnival, amusemral park or cifeas; it. Any medical clinics or medical offices; 12. Any superauscket within Unit 4 as dcsipmud on the Site Plan. ) that: (a) a sapemumket occupying twenty thousand (20,000) square feet of poor area or lest may be located in the premises labeled "Aoposed Retail C" ou the Site Plan; acid (b) a stpana:ket may be located in the peemiaea labeled 'Proposed Rem? B" on the Site Plea. 13. Any office an other than office space used in connection with and anmllmy to a paroitted recoil use haramder and (y) revel offices providing services commonly found in sistahr retail shopping cerWers in the Iiardsburg meoopohlan am (for example, financial services, feel estate brokerage, insurance agency, banking. travel agency); that soci uses are located at least one hundred (100) feet away boar the Premises (other than single brow barb, witch may be located on any Ouquarcen, and ant nose than 6fleva dwwand (15,000) square lea of floor area in Ire Shopping Center, in the aggregate, shall be devoted to such uses. 14. daycare censer, Is. veterinary office. except as may be incidental to a permietad fnif.line pet and pet supply store operating in at leant fiflean thousand (15.000) square has of floor stew, provided mach occupsm "are rasoambic efforts w prevent ib stomas from atbwiog their pas w urinate or defemsc m the Comwxm Arcs and will promptly renme any "dog dirt" from Common Areas; 16. children's eaoatsiomeot of activity facility (much as "Discovery Zane" a "Chuck E. Cheese's') in excess of four thousand (4,000) square feet of Moor area; provided no such facility my be located within one hundred and fitly (130) feet of the Promises.. karate center; is. any restaurant within one bm*ed (100) feet of the Premises that either (a) is in excess of three thousmd five hundred (3.500) square lea of Floor area or (b) is a fun service rahwanh 19. beauty parlor or and salon 20. my store primarily selling machnodise Mich n classed as "odd lot," "close out," "clearance," ••,r;.,.,,.,w_..r w " " wNCO@4" .factory Select." ""Awk." "floor model." "&MDODatef " "obroleaee 'over stock." "d'b&=wd," "bankruptcy," "fire ash" or "damaged", such at, for a rattle, "Grorarman's Bargain Outlet", "Coatrames Wasebowe". "Big Lob". "1,iquidotion World". or wodd lob"; the m ailer corumtooly known as ''Climtomis Trot Shops" abaft be demand not to violate the foregoing restriction. RFGENCV ('ENTER !z LANDLORD WAIVER AGREEMENT RockWo: I X2/27/07 A3?66 J" LOW ISM YI 1111W ItFd:ENC1. INITIAL rFM'F.Rc , "V IN WLT NES,S WHEREOF, the u ndersigned have execu ted this Agreement on the dale first above 1e d#e n.. L grxJe a U k Wine ss for La nder Printed Name: Ifs: Bv: Oloo a forlandkwd BriMd Name: ka: Winess for Landlwd w?'?S00 r1 ln_VM 02/27/07 /A3/46 halm nFsTTAL Rr-CjENCY CF.NTFR c ASSIGNMENT AND ASSUMPTION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement"), is made this ?L day of 3yw0- 2007, by and between Hollywood Tanning Systems, Inc:, a New Jersey corporation ("Tenant'j, HT Systems, LLC, a Delaware limited liability company ("Assignee'), Tan holdings, LLC, a Delaware limited liability company ("Gusrantor'j, and Silver Spring Square 11, LP, a Delaware limited partnership ("Landlord'). WITNESSETH: WHEREAS, Landlord, and Tenant entered into a Shopping Center Lease dated March 16, 2007 demising to Tenant certain space (space H-5, approximately 2,000 square feet, the 'Premises') in the Silver Spring Square ("Shopping Center'), the address of which is known as 6416 Carlisle Pike, Suite 700,, Mechanicsburg, PA 17050 (herein the "Lease'); and WHEREAS,. Guarantor executed that certain Absolute Unconditional Guaranty Agreement dated ,?.. 2a, i'v'7 guaranteeing the performance of the obligations of the Lease; and WHEREAS, Tenant willfully assigns its interest in the lease to Assignee, and Assignee willfully accepts and assures the assignment thereof, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, for valuable, considerations, the receipt and sufficiency of which is acknowledged, the parties agree as follows: 1. The above recitals are hereby confirmed as true and correct and are reaffirmed hereim. 2. Assignment: Tenant hereby assigns and sets over to Assignee all of Tenant's right, title, interest, and claim in the Lease (the "Assignment). 3. Notice Address. As of the date hereof, the address for any notice to be provided to the Assignee under the Lmsc shall be: 11 Enterprise Court Sewell, NJ 08080 won: Assignee hereby accepts the Assignment and assumes and agrees to perform each and every one of the Tenant's obligations under the Lease which accrue or become due after the date hereof: Assignee shall not by this Agreement succeed to any liability which Tenant shall owe to Landlord arising prior to the execution of this Agreement, except as set forth in paragraph 7 below. 5. Landlord's Consent: Landlord hereby consents to the Assignment of the Lease to Assignee. 6. Guarantor's Consent: By its execution of this Agreement, Guarantor hereby consents to the Assignment of the Lease to Assignee. 7. Anti-Tear d= and Money Laundering AnxN099911 Sad LR?*?niftc?ti?m Assignee certifies that: (i) neither it nor its officers, directors or controlling owners is acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order. the United states ,Wf llCi?L/t/R W r/rpp EMBR -1- REG PS Department of Justice, or the United States Treasury Department as a terrorist, "Specially Designated National or Blocked Person," or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control ("SDN`l; (ii) neither it nor its officers, directors or controlling owners is engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) neither it nor its officers, directors or controlling owners is in violation of Presidential Executive Order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or any regulations promulgated pursuant thereto. Assignee hereby agrees to defend, indemnify, and hold harmless Landlord from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorneys fees and costs) arising from or related to any breach of the foregoing certification. Should Assignee, during the term of the Lease, be designated an SDN, Landlord may, at its sole option, terminate the Lease. 8. Nothing herein shall be deemed to arnend any provision of the Lease or release Tenant or any Guarantor of the Lease from any liability presently existing under the Lease, nor shall Tenant or any Guarantor be released from any prospective liability under the Lease arising.. out of Assignee's defa? It which occurs after this Agrcemmt is executed. . 9. Tenant shall be liable and responsible for payment of the rent and all other sums due and payable under the Lease and hereunder. Landlord's consent to this Agreernent is subject to payment in full of. the aforementioned sums. Assignee agrees to pay for any and all sums found to be due and owing in relation to an annual reconciliation by Landlord for the common area expenses, insurance costs, real estate taxes and utility costs. IN WITNESS wAEREOF, the parties have caused these presents to be executed as of the day and year first above written. SIGNED, SEALED, AND DELIVERED IN THE PRESENCE OF: TENANT: Hollywood Tanning Systems. Inc., a New hem g;poration By. v Witness for Tenant Its: PRESIDENT rtness for Tenant fVtnm for Assignee Witaes or signee ASSIGNEE: HT Systems, LLC, a la liability cotnaam By. ",Stin Z,tsV1 Its: r?,axd a rado A1XtdWL ff 2m w rs2W -2- REGENCY CENTERS ltnesS or Guarantor Witness fo antor tress for Landlord Z for ord GUARANTOR Tan Holdings, LLC, a Delaware limited liab? company By: Austin 'joar-in Its: Kytborimd 9A r* LANDLORD: SILVER SPRING SQUARE 11, L.P., a Delaware limited partnerabip By: ReBemy Realty GroW, Inc. a F1 g partner modc" BY Its: ¦?u?t i ru ri.v.. VICE PRESIDENT REGENCY CEMRS. mXUR 622 Y/anny -3- ABSOLUTE UNCONDITIONAL GUARANTY AGREEMENT KNOW ALL MEN BY THESE PRESENCE: That, THIS Absolute Unconditional Guaranty Agreement (the 'Guaranty,) is executed and delivered this ,21_ day of A. wt 2DO_2 by Tan HoldlrW, t1Ct a Delaware limned liability company, (herein "Guarantor), in favor of SUver Spring Square II, LP, a Delaware limited partnership. ClAndiord ). RECITALS: A. HT Systems, LLC, a tinted liability company organized and existing under the laws of the State of Delaware ('Tenant'), and Landlord are party to Chat certain Shopping Center Lease dated March 16, 2007 originally between Landlord and Hollywood Tanning Systems. inc.. a New Jersey corporallon. predecessor-in-interest to Tenant, which Lease was assigned to Tenant pursuant to an Assignment and Assumption Agreement of. even date herewith (the 'Agreement'). Guaranty. B. in order to Induce Landlord to enter Into the Agreement, Guarantor agreed to execute and deliver b Landlord this _ C, _ Guaratoor admowtedges that Landlord would not he". entered taco the Agreement without the execution and delivery by Guarantor of this Guaranty. NOW THEREFORE. In owelderatbn of the premises and other. good and valuable emsideration, the receipt and sufficiency of which are - hereby adrrwwledged by Guarantor, Guarantor hereby agrees -in favor of tundloid (and • Landbrd's successors and assigns) as Room- I- Guarantor absolutely. unconditionally and kmvocaby guarantees the prompt and conhptefe payment and performarroa when due, whether by accaleratlon or otherwlse, of all obligations, liabilities and ooverhahta, whether now In wdstance or hereafter arlsing, of Tenant tb landed. and edging under Cue Agreemef# badudlrng vrlrnout Bmrsron at amounts due to the landlord as rent or otherwise under the ApraerneM (the ?Obtp ft*.). The Guarantor hereby sprees to pay and/or perform punc t usty, upon written demand by the Landlord. each such ObCgallon which Is not paid or performed as and when due and payable by the Tenets, In Cite manner as such amount Is due from the Tenant. For purposes thereof. the Obllp dons shall be perbmwd and/or due and payable when due atnd payable under the lenrne of the Agreement the fad that the colecdon or arnkmam nt thered as against tits Tenant may be stayed or enjoined under Tire 11 of the United States Code or limiter applicable taw. This Guaranty Ks one of payment and not of collection. 2. The Guerarntor'a obligations under this Guaranty we absolute and unconditional and shall not be af/eravd by the genuineness. validity, regule ty or enforosebEy of the Obligations or the Agreement, or by any other circurnaarnce relating to the Ob ono or the Agreement which might otherwise constitute a legal or equitable diadem of Or defense of a gueranbr or suraty. Guarantor hereby knewcably waives any and ant suaetyship dsfinsss, dsf noes that could be asserted by Tenant (VOW payment) and ON other defenses that would oiherwisa be as Wit b Guarantbr. Ar p ftwwb by the Gwuwrtor pursuant to this Guaranty shall be made wIlmut setoff: The Iaratiord shall not be oblggabd to lab any daim ratatng b the Obligations In the event that the Tenant becomes subled to a bankruptcy. or snhda Prooeedng, and the f & e of tine Ladlord so to tits shall not slid the GuaranWs obli9effons under this Guaranty. The Guarantor Irrevocably waives any rtpht to requke the Landlord to pursue any other remedy In On Lanrtiotd's power whaboever, whedw against the TaraM or any other obligor Prkhdpary or secondarry obligated wtih rasped b tins Obligations. The Guarantor Irrevocably waives any de mss wising by mum of arty dbabirfy. badaupky. reorganization or similar procee ft kw&AV tins Tamr& In the evert that any payment In rasped of any ObIlgedons Is rescinded or must obervAs be returned for arry reason whatsoever, the Qnrrarft shell remain liable under this Guaranty In rasped Of such ObCpadions as If such payment had not been made. 3. The Guararrbr agrees that tine Landlord may at any time and from time to tune. ~ before or after the maturity thereat wiPwA notice b or further Cdlaent of the Gtnmft. extend On time of payment of. or pefamance of, or renew, any of the Obligations. and may also make any agreement wltix the Tenant or of any other party b or person rate on any of the Obrgallm. or bite vdW therelm for the 1 11 -1,n, renewal. payment, compromise, waiver, dlsciharps or false" thaed, In %ftfe or In part, or for any amendment or moWicallon of the terms tiered or of the Agreement or any other agreement between the Landlord and the Tenant or any such other party or person, without In any way Impairing, releasing or afleclkhg the IlabWas of the Guarantor under this Guaranty. JO LwAL www 7 REGENCY CENTERS Initial H 77-_ 4. The Guarantor will not exercise any rights which it may acquire by way of subrogation until all of the Obligations to Landlord shell have been Indefeasibly paid in full, or peAarmed in its entirety. Any amount paid to the Guarantor in vidatton of the Preceding sentence shah be held in trust for the benefit of this Landlord and shad forthwith be paid to the Landlord to be credited and applied to the Obligations. whether matured or unmataxed. Guarantor hereby subordinates any and all liabilities and Indebtedness to Guarantor to the prior kKkftasible payment in fuA of the Obligations. This Guaranty shah remain irl huh force and effect and be binding upon the Guarantor, he successors and assigns until all of the Obligations have been satisiled in full and the Agreement shall have been terminated or linty performed. This Guaranty may not be modPhed, discharged or termiaeted orally or in any manner other than by an agreement in writing signed by Landlord and Guarantor. This Is a oontinuina Guaranty relailng to ail Obligations, including any arising during any holdover term or arising under transactions renewing or extending tie fern of the Agreement, changing the terns of any Obligations, or creating now or addillonal Obilgafions after prior Obpgahons have in whole or in part been satisfied, regardless of any Mpse of time. If any of the present or fixture Obtigailorhs are guaranteed by persons, partnerships, oorponodons or other entitles in addition b the Guarantor, the death, release or discharge, in wtwle or in part, or the bankruptcy, ilqukMm or dissolution of one or mere of tarn shall not discharge or affect the ilabMu of the Guarantor under this Guaranty. The obllgaf o of Ma Guarantor hereunder shall be addltlanal to, and riot in subeftfion for. any somx* or other guarantee or Indemnity at any lira existing in respect of TerhanTs obligations, liabilities and covenants under the Agreement. & No fatiue on the part of the Landlord to exercise, and no delay in exercising, any r%M remedy or power under Vie Guaranty shall operate as a walvar thered, nor shah any single or portal v erdas by the Landlord of any right, remedy or power under Ibis Guaranty preclude any other or future exercise of any right, remedy or power under Oft - Guaranty. Each and every right, remedy and power Wmti.,to #w Lardtord_wWw this Guaranty or showed it by taw or' by Chia 'Apjreirriehht or any other agreement shelf be aunulallve and not sxdu*,fe of any other, and may be exercised by the Landlord from time to &ne. 7. The Guarantor hereby wolves notice of acceptance of ttds Guaranty, and naltice of any obligation or Nabifity to w1Wch it may apply. and waives presentment demand for payment preheat, reties of dishonor or non-pprymant-af pG? srleh oftoir cr NabNlly: srilYOr hind 6+MN8 of dfher Aktn'by laridlori) apatn37?'arul'aff?oMher riotlcss whatsoever to. fie Tenank the Guarantor or others. 8. Landlord may at any tine and from tine to time without notice to or oonsent of the Guarantor and witqut impairing or releasing to Obligations of the Guarantor hereunder (a) take or fail-to take any adorn of any kind in respect of any security for any obligation. covenant or liability of the Tenant to Landlord, (b) exercise or refrain firom exercising any rights against the Tenant or others, (c) compromise or subordinate any obagesm or liability of the Tenant to Landlord including any serxxlty, therefor, (d) consent to the assignment by Tenant of Its Interest In the Agreement, or (e) consent to arty other nafeer or thing under or Mating to the Agreement. Guarantor naives trial by jury in any action, proceeding or counterdeK irmatving any mailers whatsoever arising out of or in any way connected with the Guaranty . Guarantor agrees to reimburse Landlord for the costs and attomey's fees inured by reason of Landlord having to enforce Oils Guaranty. 9. Guarantor represents and warrants to Landlord that (a) the Agresmerd has been duty aufhotred, executed and delivered by Tenant and Is a legal. valid and binding Instrument enforceable against Tenant in accordance with its terns, and (b) tins Guaranty has been duly aullmm , executed and delivered by Guarantor and Is a legal, void and binding ihwunent enfon xmdit against Guarantor In aowrdoncewith Its tennis. 10. The Csuaranlor may not aadgn Its rights nor delegate Its obl gallons under this Guaranty. In whole or in park_wtlhtm prior Written wwmt d to Landl ord. and any purported aukrhrrrent or deMgaton absent such eonaerd is void. This Guaranty shell remain In full lone and disci notwithstanding (a) any assignment or iwmft by Tenant of Its iderest in the Agreement (in which case this Guaranty dell apply, from and alter such asshpnrnerd or bander. to all dlhe oblgafte. tiablges and covenants of the assignee or transferee under the Agreement). or (b) any assignment or transfer by Landlord of his interest in the Agreement (In which case Guarantor's obilgntlom under this Guaranty shall inure to the benefit of Landlord's assignee or transferee), In each case ireepeclive of what her Guarantor has notice of or consents to any such assignment or transfer. 11. THIS GUARANTY SWILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF FLORIDA W IMOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. GUARANTOR AND LANDLORD JOINTLY AND SEVERALLY AGREE TO THE EXCLUSIVE JURISDICTION OF COURTS LOCATED IN THE STATE OF FLORIDA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO THIS GUARANTY. RaaekMad aP-WOUVI.eyally Approved FWMWGaWM%r Rw. tt.4.e4 In" REGENCY CENTERS - r_z I IN WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date and year first above written. Signed, sealed and delivered In the presence of. Iwi Witrhess GUARANTOR: Tan Holdings, LLC, a Delaware limited Iiabillty company Rw- Guarantor adarowtedges Its address and win notify Landlord of any changes thereto. V-_ Dop.b.pUL-galhlytUw,,Iy Rw. RMWENCY CENTERS Initial K55155001 RECe0001r Make Check Payable To: Silver Spring Square 11. LP P.O. Box 822343 Philadelphia PA 19182-2343 Billing Address: HT SYSTEMS, LLC DBA: HOLLYWOOD TANS 8 KARENS COURT WOOLWICH TOWNSHIP NJ OSMS-3087 Tenant Reconciliation From: Dale - Tenant Number Page Silver Sprint Square 11, LP P.O. Box 822393 Philadelphia PA 19182-2313 Tenant: HT SYSTEMS, LLC DBA: HOLLYWOOD TANS 8 KARENS COURT WOOLWICH TOWNSHIP NJ OMS-3087 Amount Remised Remit top portion with payment. 09 5980 ACCOUNT AGING 6011411 lam States Rg9r0 Ue31: /OS 1^4141 UMI14 2.a. 0.0 W One Bore DM BB Cd Daai/Ma tyep Pe90?a " Be6ee7o " 0101160 adore/447044 _ -.___?.___ - •.M 09,21.07 067147 OM44t BASE BASE BENT S,SOam (S.504m) 0.00 041-07 0?7L?7 097107 WE BASE EtMT.9 DAYS AUGUST 07 1.544.71 (1.501, 771 0.00 09,2107 oM147 093147 CAM GAM 430.07 t414,671 0,80 79:21167 044107 094191 CAM CAM-0 DAYS AUGUST 07 170,07 (170.97) 0.00 OA21.167 00Q1.97 09A10111 INS 1WSUSAWCS 4147 (41A1) BAD 0"1.07 0912147 092147 INS MSUOAIAM-9 DAYS AUG. 2001 1210 (ILIO) Om 0971.07 MINT MUST an REALWATETAX 37333 (157.77) 040 041,07 091147 "7147 M aEAL ESTATE TAX-9 DAYS AUC %.77 (96.77) a.M 3MI47 104147 Nat07 BADE BASE SENT s,SM.00 (S.S0040) 0.00 1841,07 100147 (041.07 CAM CAM 910.07 (060) 000 100147 teOLal I"tw INS INSURANCE 4167 (91,671 040 initial 10,9147 160107 SET REAL ESTATE TAX 5))33 (737.11) 040 10,0247 100107 foam TWNT 000101.070547-01,0397 10.63 (22A)) am 160247 104747 wow TWNT On 0747 4 7 4 00 00 7 lam (14.00) Sao (07597 1075,07 foam TNNT EpOdc ease 6710" 19021 114121) O.M 167541 162547 loam TWNT C. ate %i 4 W l l lam (140) SAO 1341,07 134447 11,9147 BASE BASE SENT sle m (5.50040) am 114147 114147 114147 CAM CAM 416.67 (91617) Om 114437 1141,00 114107 (NS MSURANCA 411,67 (41,67) 0.00 Itam finial Itual REl SEAL ESTATE TAX 573.53 fit")) GAO 1201,07 I10w7 1141147 BASE BASSIt371T S500,00 (513MAD) an t2alal 1111107 UVIAT CAM CAM 436,67 014671 040 139147 124107 129147 Ors I143111RA-Mm 4147 (4147) 040 121447 ML07 130147 SET AEALEiSTATATAX 77).)3 ())3.73) im 131007 IY007 133007 RATY SAAI. ESTATE TAX BO: /IUOR YEAR (560.41) SMA I 040 014140 SIAM 014141 EASE BASE RENT 5.5E-0.Oo (5.50040) 0.00 O44NM 014147 0101,101 CAM CAM 450.35 tam 13) 0-00 MISS 014LO 014141 SET SEAL ESTATE TAX 236A7 (23647) am 0wW OVOLM 014141 INS I$MRANCH 55.33 (53.31) am 11301,46 "aim 030145 RASE DAUR121T 5.74440 (s3wm) Om oDOLM 010146 034140 CAM CAM 451.35 t4M33) 040 9AOlo" Bantu 010144 LET REAL ESTATE TAX 25647 (216AT) Om 010146 6"lul 0"143 1105 WISURAMM 57.73 Mill Ilm 6341,410 030140 1114441 EASE BASE RENT 5.41040 t565Mm) Om Guam 070101 O1N4o CAM CAM 456.37 tassm) 6.00 ML" 010101 010106 1457 REAL RSTATS TAX 2116,67 (4%.417) 0.00 030141 9"1= Blame BU INSURANCE S113 (51!37 Om mlo" SY31a0 Ovilas CAM/ CAM aw /SIOR YEAR 414191) 14191 am 071,46 0331144 9"144 INlP WSUSANLESECflWlY6AX 50.76 (50.761 Om 6441" awl" a44P1AS BASS SASARSINT 5.50040 CU"40) 0.00 *"am Ow100 9601" CAN GM 0447 (SSS73) am 444w 440100 040141 SET REAL ESTATE TAX 216.67 (3%41) 4.00 9"644 0441o" Nat= L43 MISURANCE 53.53 (53-17) SAO ratio" 000L9e "at" SASE RARE RENT 1,300,110 (5.50040) Om VOL44 owtA0 0"Im CAM CAM 45111 (4115633) am 041" 04LN 6501" 0.R SEAL ESTATE TAX 23647 (276.67) 440 0411" 0501411 9541" B(7 wsUSAMGE 37-13 (5333) 4.00 "at%0 oa4tba $ am SASH UASERRNT 7a00m (S,7Mm) ado /44143 Seem swim CAM CAM 458.33 tssu)) 6m 1001" am&" 064144 RAT REAL ESTATE TAX 13647 DUAT) 4.00 OWL" Mow 9MUM INS Wr6URANCE _ 53.33 03.51) 0.00 Mine 07a1A0 07,01410 SASE SASS ROfT ssmm (2.37541) 3.12117 Cb.k WemOr r9?GG'ae Bab A//Eed N Iola 054-1167 1021 114107 1021 114107 tell 114207 1021 11,0107 1021 114,907 1021 114207 loll 114707 loll 114197 1021 114107 1021 11.0741 1021 I LWA7 loll 114,907 101 1IM47 loll t1A9A7 loll 11,2101 9071 119107 9021 1)4307 1031 114107 1031 114107 loll I law 1027 I VM7 1027 I law tell 111!547 IOM I V&" 1041 914144 IMO emu 1040 014ZW 1000 044ROa too OIA6M 1049 •V2041 ION /Map IM CAM low 0309M low Ow1o" 1044 774100 IoM 414M 1077 Bantu 1077 050144 Was I"tm 1003 m1.N INS mwt INS 10141 4477 000" 1077 0431" 1077 m 45,41140 1077 M0M tau 0w308 am 064M lam /66.144 1"6 060144 1060 .B?IIR 074744 R55155001 Tenant Reconciliation part- 091 +RE0000I • Tenant Number $980 Page - 2. 070101 070100 070106 CAM CAM 63653 (456.111 0.00 1000 07071" 11 070116 070106 071108 BET REAL ESTATE TAX 23667 1136671, 060 1600 0707:" f 0701.-00 074106 079108 INS INSURANCE 41.)1 (51171 6.QD 1000 07071" , ::I W,670 "a1M BASE BASE RBNr s.t"3o 5.500.30 146 0601'01 OL41..0 CAM GAM 66.0 W.11 at[-IN 0611.01 M4L08 ItEr REAL ESTATE TAX 116.67 216.67 44101.00 0301.10 ",610 INS INSULkNa ST 11 $7.11 "'I40B a& U111 011211BB LATE I.A. F- 3IL42 3LL42 0791 Oa ",61.a "al"" BASE BASER&/T t"S.00 S46Sa OO/lp 0591" 00.010 CAM CAM 63.11 453.17 "010 04"91 "010 BET REAL ESTATE TAX 11647 236.67 ".41.13 "91.13 "1101 INS INSURANCE $1.77 Sol) "'li" 091108 WON LATE L- F... )3D47 12D.67 03748 1091,011 10.010 BASE BASEMENT 5.665.00 5.665.00 10WI." tool" 100191 CAM GAM 600.13 458 33 1001.00 IBM." 1091,61 BET BMA4 ESTATE TAX 11647 21647 "llu" 10.9108 10410 INS INSURANCE 5.133 S1.11 "761 7117.11 SFrIe6 Sq- U.N: L-l GL IN" IN7 Rae Ow DM BBI U B..ipGOB Chase h2..B. DW6- CL.& Nvooi?. ray... 8.6. Ar3L'd A. OLa1.K IWI Gk-.F-.4 BAD - - ACCOUNT SUMMARY Balance Forward Current 1-30 6.413.33 6.734.00 B411acePrior To 01/01/06 0.00 Plus C"rges F1am 01/01/06 89,975.96 Less Payments / Credits From 01101/06 (67,143.71) AMOUNT DUE: 22 832 25 31 - 60 61 -90 91 - 120 Over 120 6.56015 3,124.17 Hollywood Tans Discounted Val ue Calculations _ Federal Reserve Bank _Discount_Rate - 2.00% - Lease Discount Rate 3.0096 - - - - - -- - t)iscounted to October 1. 2008 -- - --- ?- • Negative - - -- - _ -- - - Additional - - - Total - Dls=nled Die ted Month ate Rent Due 15 ---- - Reel Rent - Rent Vakre Discount Value Past Due Rent - - _? 22,83225 14 _ October 1, 2008 5,665.00 748.33 6,413.33 - 6.413.33 15 _ November 1, 2008 5,665.00 748.33 6,413.33 $6,397.34) 15.99 6 397.34 16 Deoember 1, 2008 5,665.00 748.33 6,413.33 $6,381.38 31.95 , 6 381 38 17 Janus 1, 2009 5665.00 748.33 6,413.33 - 56,365.47 47.86 , . 6 365.47 18 _ February 1, 2009 5,665.00 748.33 6,413.33 ,349.60) 63.73 , 6,349.60 19 March 1, 2009 5,665.00 748.33 6,413.33 $6,333.76) 79.57 6,333.76 20 - April 1, 2009 5,665.00 746.33 6,413.33 (56,317.97 95.36 _ 6317.97 21 May 1, 2009 5,665.00 748.33 - 6,413.33 - $6,302.21 111.12 6302 21 22 June 1, 2009 - - - 5.665.00 748.33 6.413.33 $6.286.49 126.84 6,286.49 23 Jul 1 2009 5,665.00 748.33 6,413.33 $6,270.82 142.51 6,270.82- 24 August 1, 2009 5,665.00 748.33 6,413.33 ,255.18 156.15 6 255.18 25 September 1, 2009 5 1835.00 748.33 8,583.33 $6,404.97) 178.36 , - -- 6,404.97 26 October 1. 2009 5,835.00 748.33 6.583.33 S6 389.00 194.33 6 389 00 27 November 1, 2009 5 ,835.00 - 748.33 - 6,583.33 56;373.07 210.26 . . 6,373.07 28 - - December 1, 2009 5,835.00 748.33 6,583.33 $6,357.18 226.15 6,357.18 29 30 Jana 1. 2010 - February 1, 2010 835.00 5,835.00 748.33 748.33 6.583.33 6,583.33 $6,341.32 $6,325.51 242.01 257.82 6,341.32 -6 325.51 31 32 March 1, 2010 Apoil 5.835.00 5,835.00 748.33 748.33 6,583.33 6,583.33 6,309.74 6,294.00 273.59 289.33 . 6,309.74 6,294.00 33 May 1, 2010 5,835.00 748.33 6,583.33 56.278.30 305.03 6,278.30 34 35 36 37 38 39 June 1. 2010 Ju!y 1, 2010 August 1, 2010 tember 1, 2010 October 1. 2010 November 1, 2010 5.835.00 5,835.00 5,835.00 6,010.00 6.010.00 6,010.00 748.33 748.33 748.33 748.33 748.33 748.33 6,583.33 6,583.33 6,583.33 6,758.33 6.758.33 6,758.33 $6.262.85 56,247.03 56,231.45 ,381.15 6,36523 ,349.38 320.68 336.30 351.88 377.18 393.10 408.97 6,262.65 6,247.03 6.231.45 6,381.15 6.365.23 6,349.36 40 Deoamber 1, 2010 6,010.00 748.33 8 758.33 333 52 56 -- 424 81 6 333 52 41 _ 42 43 44 45 46 47 48 49 50 Januar 1, 2011 _ F 1, 2011 Mardi 1, 2011 Aprg 1, 2011 May 1.2011 June 1, 2011 July 1, 2011 -August 1, 2011 September 1, 2011 October 1 ,2011 6,010.00 6,010.00 6,010.00 6,010.00 6,010.00 6010.00 6,010.00 6,010.00 6,190.00 6.190.00 748.33 748.33 748.33 1 748.33 748.33 748.33 748.33 748.33 _ 748.33 748.33 , 6,756.33 6,758.33 6.758.33 6,758.33 6,758.33 6,758.33 6.758.33 6,758.33 6.93&33 6 938.33 , . 56,317.73 6,301.98 $6,286.26 _ $6.270.58 ,254.95 ,239.35 3.79 .208.27 ($6,357.72)1 341 87 . 440.60 _ 456.35 472.07 487.75 503.38 518.98 834.54 550.06 580.61 596 46 , . 6,317.73 6,301.98 6,28626 - 6,270.58 6,254.95 6,239.35 6,223.79 208.27 6,357.72 6 341 67 51 52 53 54 55 56 _ November 1. 2011 December 1, 2011 Janumy 1, 2012 FebRmy 1, 2012 March 1, 2012 Apd 1, 2012 6190.00 6,190.00 6,190.00 6190.00 6,190.00 6,190.00 748.33 748.33 748.33 748.33 748.33 748.33 , 6,93&33 6,936.33 6.938.33 6,938.33 6,938.33 6,938.33 . 326.05 ,310.28 294.54 ,278.84 ,263.19 6,247.57 . 61228 _ 8'18.05 643.79 659.49 675.14 690.78 , . 8,328.05 8,310.28 6.294.54 6,278.84 6,263.19 6,247.57 57 may 1.2012 June 1, 2012 6,190.00 6,190.00 748.33 748.33 6.938.33 6,938.33 ,231.99 ,216.45 706.34 721.88 6.231.99 6,216.45 59 60 July 1, 2012 t 1.20121 6,190.00 6,190.00 748.33 748.33 6,938.33 6,938.33 1 ,200.94 ,185.48 737.39 752.85 6,200.94 6,185.48 Total Discounted Values 319107.10 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Defendant, HT Systems, LLC, Joinder Complaint against D&C Tanning Company was caused to be sent by first class mail, postage prepaid, by the undersigned on the date stated below, to the following: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 CHERNOW KATZ, LLC Date: December. ? , 2008 By: C Steven Kapustin 6 VERIFICATION I, Lewis Shender, hereby certify that: a I am the President of HT Systems, LLC, a Defendant in the foregoing action; a I am authorized to execute this Verification on its behalf; and a the facts set forth in the foregoing Joinder Complaint are true and correct to the best of my knowledge, information and belief. I acknowledge that I am subject to the penalties of 18 Pa. C.S.A. §4904 relating to unworn falsification to authorities. Date: Z 04 IW_ 7 P x'7 co T. ~ { f CHERNOW KATZ, LLC By: Steven Kapustin, Esquire 721 Dresher Road, Suite 1100 Horsham, PA 19044 (215) 659-3600 Voice (215) 659-3222 Facsimile SILVER SPRING SQUARE II, L.P. Plaintiff VS. HT SYSTEMS, LLC, HOLLYWOOD TANNING SYSTEMS, INC. and TAN HOLDINGS, LLC Defendants VS. D&C TANNING COMPANY 8 Karens Court Woolwich Township, NJ 08085 Attorneys for Defendant, HT Systems, LLC COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION NO. 08-5905 AFFIDAVIT OF SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY SS I, Steven Kapustin, Esquire, being duly sworn according to law, depose and say that: 1. I am, and at all times hereinafter mentioned was, more than eighteen (18) years of age; 2. On December 17, 2008, I served upon additional defendant, D&C Tanning Company, a copy of the Joinder Complaint by mailing a copy of the Joinder Complaint by Certified Mail, Return Receipt Requested. Copy of the return receipt is attached hereto as Exhibit A. Dated: December 22, 2008 Sworn to and subscribed before me this day of December, 2008. N Public •JLa,y Public nasswn i:KpireSA'4" M. 26tH < "MMONWEALTH OF PENN$YLVAV, NOTARIAT SEAL JANET E. OETINGER, Notary Public Horsham T"., Wtontgonwi County, My COMRIiSS;W EApires March 14,20; CHERNOW KATZ, LLC By: Steven Kapustin, squire Aorneys for Defendant, HT Systems, LLC COMMONWEALTH OF PEMOYLVANU NOTARIAL SEAL JANET E. OETINGERooNoeet iry Pubk HwSham M gMnmt" 14?,t2610 IFA4 1 ''PM?r rT ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this cans to the back of the mailplece, or on the front if space permits. 1. Article Addressed to: COMP "y en s w ?1W,cl oWfishlp , NJ b$bg5 A. ? Agent B. Received by (PdnWWeme) Date of Delivery /a h'71 D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Segge Type Certified mail ? ress mail ? Registered W*Retum Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted DelMary? (Extra Fee) ? yes 2: Article Number 7007 0710 0003 2120 1461 (?tansfer frorom m service rebel) PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M-1540 Exhibit "A" -? CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Affidavit of Service was caused to be sent by first class mail, postage prepaid, by the undersigned on the date stated below, to the following: Denis M. Dunn, Esquire Petrikin, Wellman, Damico, Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 CHERNOW KATZ, LLC Date: December t 008 By DILWORTH PAXSON LLP By: J. Bradford McIlvain Attorney I.D. No. 42390 1500 Market Street Suite 3500E Philadelphia, PA 19102 (215) 575-7000 (215) 575-7200 (fax) bmcilvain@dilworthlaw.com Attorney for Defendants HT Systems, LLC, and Tan Holdings, LLC. THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING SQUARE II, L.P., Plaintiff CIVIL ACTION V. NO. 08-5905 HT SYSTEMS, LLC, et al. CIVIL TERM Defendants. ENTRY AND WITHDRAWAL OF APPEARANCE Kindly enter my appearance on behalf of defendants HT Systems, LLC and Tan Holdings, LLC in the above-captioned action. vain Morney for Defendants HT Systems, LLC and Tan Holdings, LLC Dated: December (1, 2008 788239_1 WITHDRAWAL OF APPEARANCE Kindly withdraw my appearance on behalf of defendants HT Systems, LLC and Tan Holdings, LLC in the above-captioned action. Cb*now Katz, LLC 7ZI Dresher Rd. Suite 1100 Horsham, PA 19044 (215) 659-3600, x102 (215) 659-3222 hchernow@chernowkatz.com Dated: December 42008 988239_1 CERTIFICATE OF SERVICE I, J. Bradford McIlvain, Esquire, hereby certify that on this 28th day of January, 2009, I caused a true and correct copy of the foregoing Entry and Withdrawal of Appearance to be served upon the following via First Class Mail: Dennis M. Dunn, Esquire Petrikin, Wellman, Damico Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 7882391 _::1 ?r, A s ?a f . ,'t o ?A7_? r? I ;-?` r. ,'? y ,. °:?: DILWORTH PAXSON LLP By: J. Bradford McIlvain Attorney I.D. No. 42390 1500 Market Street Suite 3500E Philadelphia, PA 19102 (215) 575-7000 (215) 575-7200 (fax) bmcilvain@dilworthlaw.com Attorney for Defendants HT Systems, LLC, and Tan Holdings, LLC. THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SILVER SPRING SQUARE II, L.P., Plaintiff CIVIL ACTION V. NO. 08-5905 HT SYSTEMS, LLC, et al. CIVIL TERM Defendants. SUGGESTION OF BANKRUPTCY An Involuntary Petition of Bankruptcy was filed against HT Systems, LLC, a defendant in the above-captioned matter, was filed pursuant to Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 101, et seq. in the United State Bankruptcy Court of the District of New Jersey on July 20, 2009. A Summons to Debtor in Involuntary Case and Involuntary Petition is attached hereto. Pursuant to 11 U.S.C. § 362(a), the above matter is stayed and void as a violation of the automatic stay. Dated: August 5, 2009 818927_1 HT Systems, LLC and Tan Holdings, LLC CERTIFICATE OF SERVICE I, J. Bradford McIlvain, Esquire, hereby certify that on this 5t` day of August, 2009, I caused a true and correct copy of the foregoing Suggestion of Bankruptcy to be served upon the following via First Class Mail: Dennis M. Dunn, Esquire Petrikin, Wellman, Damico Brown & Petrosa The William Penn Building 109 Chesley Drive Media, PA 19063 8189271 Case 09-28741-GMB Doc 1 Filed 07/20/09 Entered 07/20/09 11:15:03 Desc Main Document Page 1 of 3 FORM B5 W90) FORM 5. INVOLUNTARY PETITION United States Bankruptcy Court INVOLUNTARY E . District of New Jersey PETITION Name of Debtor (if individual, enter Last, First, Middle): ALL OTHER NAMES used by debtor in the last 6 years HT SYSTEMS, LLC (Including married, maiden, and trade names): LAST FOUR DIGITS OF SOC. SEC. NO./Complete EIN or other TAX I.D. NO. (If more than one, state all.) STREET ADDRESS OF DEBTOR (No. and street, city; state and zip code): MAILING ADDRESS OF DEBTOR (If different from street address) 11 Enterprise Court Sewell, NJ c/o CMA Business Credit Services zip code 40 East Verdugo Avenue 08080 Burbank, CA 91502 COUNTY OF RESIDENCE OR PRINCIPAL PLACE OF BUSINESS Attn: Michael L. Joncich Gloucester ' LOCATION OF PRINCIPAL ASSETS OF BUSINESS DEBTOR (If different from previously listed addresses) CHAPTER OF BANKRUPTCY CODE UNDER WHICH PETITION IS FILED © Chapter 7 ? Chapter I I INFORMATION REGARDING DEBTOR (Check applicable boxes) Petitioners believe: TYPE OF DEBTOR ? Debts are primarily consumer debts I Individual J Stockbroker N Debts are primarily business debts s Partnership Railroad ? Corporation % Health Care Business J Clearing Bank Commodity Broker ® Other. Limited Liability Companv BRIEFLY DESCRIBE NATURE OF BUSINESS VENUE FILING FEE (Check One Box) I@ Debtor has been domiciled or has had a residence, principal place of IN Full Filing Fee attached business, or principal assets in the District for 180 days immediately preceding the date of this petition or for a longer part of such 180 days ? Petitioner is a child support creditor or its representative, and the than in any other District. form specified in § 304(8) of the Bankruptcy Reform Act of 1994 is attached. ? A bankruptcy case concerning debtor's affiliate, general partner or partnership is pending in this District. PENDING BANKRUPTCY CASE FILED BY OR AGAINST ANY PARTNER OR AFFILIATE OF THIS DEBTOR (Report information for any additional cases on attached sheets, Name of Debtor Case Number Date Relationship District Judge ALLEGATIONS (Check applicable boxes) 1. ® Petitioner(s) are eligible to file this petition pursuant to U.S.C.§ 303 (b). 2. ® The debtor is a person against whom an order for relief may be entered under title I 1 of the United States Code. 3,a. ©The debtor is generally not paying such debtor's debts as they become due, unless such debts are the subject of a bona fide dispute; or b. ® Within 120 days preceding the filing of this petition, a custodian, other than a trustee, . receiver, or agent appointed or authorized to take charge of less than substantially all of the property of the debtor for the purpose of enforcing a lien against such property, was appointed or took possession. PHILI 853631-1 -Case 09-28741-GMBDoc 1 Filed 07/20/09 Document Page 2 of 3 FORM 5 (6M) Name of Debtor HT Systems. LLC Case No. TRANSFER OF CLAIM Check this box if them has been a transfbr of any claim against the debtor by or to any petitioner. Attach all documents evidencing the tramfbr and an statements that am required under Bankruptcy Rule 1003 a REQUEST F OR REUIEF Petitioner(s) request that an order for relief be entered against the debtor under the c hapter of title 11, United States Code, specified in this petition. Petitioner(s) declare under penalty of perjury that the foregoing is true and correct to the best of their knowledge, Information and belief. ' x_ . SVP Asset Management x July 2009 Signature of Petitioner or Representative (State title) . Signature of Attorney Date HanoterNorth Associates L.P. July 2009 ERS 1{LEHR HARRISON HARVEY BRANZBURG & ELL Name of Petitioner Date Signed . • Name of Attorney Firm Of any) ' . 457 Haddonfield Road, Suite' 510 Name & Mailing Christopher Finley Cho= Hill NJ 08002-2220 Address of individual 350 Sentry Parkway, Suite 300 . Address Signing In Representative Blue Bell, PA 19422 (856) 486-7900 Capacity ------------------------------------------------ Telephone No. --------------=----------------------------------- Peddoner(s) declare under penalty of perjury that the foregoing is true and correct to the beat of their knowledg rmadon and belief . ? ` ? ? x 1 2 Signature ofPedtia or Rep ve(5latetide) Si atumo ey Date Medlock Crossing Shopping Center KLEHR. HARRISON HARVEY, BRANZBURG & ELLERS Duluth. Ga Limited Partnership July % 20119 'Name of Attomay Firm (If arty) Name of Petitioner Date Signed 457 Haddonfield Road, Suite 510 Name & Mailing Clmm Hill. NJ 08002-2220 Address of-Individual 270 Commerce Drive Address Signing in Representative Rochester, NY 14623 (856) 486-7900 Capacity Telephone No. Petitioner(s) declare under penalty of pe jury that the -Troregbingis trop ani arffc-ccf mil esTuruiev --------------------- ------------------------------------------------- know amadon and belief Si t P i x my 009 gna u e o e Toner or tat ve (State tide) ;Ifnature of Date City Centre Philadelphia, Pa. p ILFHR HARRISON HARVEY. RR AN9Rr RG & Rr T RA C Limited Partnership July \\ 2009 Name of Attomay Firm (If any) Name of Petitioner Date Signed 457 Haddonfield Road, Suite 510 Name ea Mailing A Hill. NJ 08002-2220 Address ofindividual 270 Commerce Drive Signing in Representative Rochester, PA 14623 486-7 00 C Telephone No. PETITIONING CREDITORS Name and Address of Petitioner Nature of Claim Amount ofCiaim Hanover North Associates, L.P. 350 Sentry Parkway, Suite 300 Lease obligations $24,061.61 Blue Bell PA 19422 Name and Address of Petitioner Nature of Claim Amount of Claim Medlock Crossing Shopping Center Duluth Ga. Limited Partnership Lease obligations 270 Commerce Drive $49,853.49 Rochester. NY 14623 Name and Address ofPedtioner Nature of Claim Amount of Claim City Centre Philadelphia, Pa. Limited Partnership Lease obligations $ 2,272.56 270 Commerce Drive Rochester NY 14623 Note: If there am more than three petitioners, attach additional sheets with the statement under penalty Total Amount of of perjury, each petitioner's signature under the statement and the name of attorney and Petitioners, claim $76,187.66 petitioning creditor infbrmation In the format above. 1 1 1 PHrL,l 853631-1 CElse 09-28741-GMB Doc 1 Filed 07/20/09 Entered 07/20/09 11:15:03 Desc Main Document - Page 3 of 3 FORMS Name orDebtor HTSystems LL.t^_ (02) Case No. %court use only) TRANSFER,OF CLAIM Check this box If there has been it pansrer of any claim agolhi. t the debtor by or to any petitioner. Attach ail documents evidencin g the tronstbr and ' statemaitd that are required under Ainbutitcy Rule''10 a tition REQUEST F Pe ers) request that an order.tbr relief be entered against the debtor under tho c OR RELIEF .. - hapier.oftitie l i, United States Codg,'specitied in this petition. Patitioner(s) declare under penalty of pedury, that the foregoing i9 true and cc to the best oftheir ka iptbrme n bell4 m X SVPAsset Manaeement x J l b0 Signature of nerorRepraentativc(Statetide) u stureofA Dam HanolrerNorth Associates, l ` 2009/ C I HAP= BHR - Name of Paddoner Date Signed , Name of Attorney Finn of any) Name& Mailing Christopher Pinley 457 Haddonfield Road, Suite'510 AddrassofIndividuai 350.ScntryParkvyay,:Suite 300 ChogyHill, NJ 08002:.2220 Signing in Representative Blue Beli, PA 19422 Address Capacity 85 486-7900 ------------ Telephone No. ---------- -------------- Petiboner(6)ikeleraunder pangltyofperjutythat the - ------------------------- tbregoing is true and correct to tie best oftheir knowledge, information and boliet X x. July 2009 Signza of Petitioner or Representative (State title) Signature of Attorney Date Medlock Crossing Shopping Center KLEHR H AMS N H R Y BRA Duluth. Ga. Limited Parbtetshlo July 2069 . . O A VE N7.itr iRQ & RULERS Name ofAttomey Firm (irony) Name of Petitioner Date Signed 457. Haddonfield Road, Suite 510 Name & Mailing Cherry Hill. NJ 08002 2220 Address orIndividuall 270Commerce.Dtive Address Signing in Representative Rochester, NY 14623 1856 8 -. 00 Capacity- Telephone No. Padtiooer(s) declare under penalty orpe$ury that the. To'tFbtit airik ftSth36estof uiti : -------------------- ----- ---------------- -------------------- -------- koiov?kidga, lnfonnetian ondbelief. x Signature of Petitioner or Representative (State trite) x Jul 2009 Signaturo`ofAUomey Date City Centro Philadelphia, Pa. 1LF.HR 'HARRIISO HARVEY B. A N7arrRG a nr r one uLLERS LimitedPartnershio July 2009 Nama ofAttomayFirm any) (If Name ofPeddoner Date signed . . . 457 Haddonfield Road, Suite 510 Name & Mailing Cherrv Hill, NJ 08002-2220 Address of Individual 270 Commerce Drive Address Signing in Representative Rochester, PA 14623 (00486-7900 Capacity Telephone No. PETITIONING CREDITORS Name and Address of Pedtioner Nature of Claim Amount orClaim Hanover North Associates, L.P. 350 Sentry Parkway, Suite 300 Lease obligations $24,061.61 .Blue Bell PA 19422 Name and Address of Peddoner Nature of Claim Amount orCiaim Medloek Crossing Shopping Center Duluth Ga. Limited Partnership Lease obligations .270 Commerce Drive $49,853.49 Rochester. NY 14623 Name and Address of Petitioner Nature of Cla m Amount of Claim City Contra Philadelphia, Pa. Limited Partnership Lease obligations $ 2,272.56 270 CommerceDrive Rochester NY 14623 Note: if them era more than three petitioners, attach additional sheets with the statement under penalty Total Amount of orpedury, each pefitioner's signature under the statement and'the, name orattomey and petidonors' Claim $76 187.66 petitioning creditorinibrmation. in the Ibmrat above , PHiLI 853631-1 Case 09-28741-GMB Doc 2 Filed 07/21/09 Entered 07/21/09 13:14:40 Desc Main Document Page 1 of 1 UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY In the matter of: Case No. 09-28741 GMB HT SYSTEMS, LLC Debtor Chapter 7 SUMMONS TO DEBTOR IN INVOLUNTARY CASE To the above named Debtor: ?,c? C va?rt tor' K m A petition under title 11, United States Code was filed against you on July 20, 2009 in this Bankruptcy Court, requesting an Order for Relief under Chapter 7 of the Bankruptcy Code. YOU ARE SUMMONED and required to file with the Clerk of the Bankruptcy Court a motion or answer to the petition within 20 days after the service of this Summons. A copy of the petition is attached. Address of Clerk United States Bankruptcy Court U.S. Post Office & Courthouse Bldg. PO Box 2067/401 Market Street Camden NJ 08101-2067 p At the same time, you must also serve a copy of the motion or answer upon the petitioner's attorney. Name and Address of Jeffrey Kurtzman, Esquire Petitioner's Attorney Klehr Harrison Harvey Branzbug & Ellers 457 Haddonfield Road, Suite 510 Cherry Hill, NJ 08002-2220 If you make a motion, your time to serve an answer is governed by Federal Rule of Bankruptcy Procedure 1011(c). IF YOU FAIL TO RESPOND TO THIS SUMMONS, YOUR FAILURE WILL BE DEEMED TO BE YOUR CONSENT TO ENTRY OF AN ORDER FOR RELIEF. Date: July 21, 2009 JAMES J. WALDRON, Clerk By: /s/ Joan Lieze Deputy Clerk 2 GS9 iG -7 Fi i -? - w