HomeMy WebLinkAbout09-6809PETRIKIN, 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. OC) i
One Independent Drive, Suite 114
Jacksonville, FL 32202-5019
Plaintiff
vs.
THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
v ` -a"( (.'toil ! F/t?
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the warrants of attorney, true and
correct copies of which are attached to the Complaint filed in this action, I appear for
defendant and confess judgment in favor of plaintiff and against defendant in the
amount of $124,996.31.
PETRIKIN, WELI,I%AN DAMICO,
BY:
Judgment entered as above.
PROTHON TARY
BY:
DENIS M. DUNN, ESQU
Attorney for Defendant
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. 09- C)Q
One Independent Drive, Suite 114
Jacksonville, FL 32202-5019
Plaintiff
vs.
THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
COMPLAINT FOR CONFESSION OF MONEY JUDGMENT
1. Plaintiff named above is a Delaware limited partnership. Plaintiffs
address is as stated in the caption.
2. Defendant named above is a Pennsylvania limited liability company
registered to do business in Pennsylvania at the address in the caption.
3. Plaintiff is the landlord owner of premises located at Silver Spring Square,
6416 Carlisle Pike, Suite 1400, Silver Spring Township, Cumberland County,
Pennsylvania (the "Property")
4. On or about July 9, 2007, Defendant entered into a Lease ("Lease") for
the Property with Plaintiff. A true and correct copy of the original Lease is attached
hereto, marked Exhibit "A" and made part hereof.
5. On or about February 27, 2009, Defendant entered into the First
Modification to the Lease ("Modification") for the Property with Plaintiff. A true and
correct copy of the original Modification is attached hereto, marked Exhibit "B" and
made part hereof.
6. The Lease and the Modification provide for confession of judgment for
money judgment against Defendant in the event of default.
7. Defendant is and has been in default of the Lease and Modification for
having failed to make payments as and when required under both.
8. Defendant has vacated the Property and, pursuant to the Lease terms,
Plaintiff hereby accelerates the balance owed under the Lease in accordance with the
calculations set forth on Exhibit "C" attached hereto and made part hereof.
9. The amount currently due and owing and unpaid under the Lease and
Modification is $119,044.11.
10. In addition, Defendant is obligated under the Lease and Modification for
Plaintiffs reasonable attorney's fees in the amount of 5% of the total due, i.e.,
$5,952.20.
11. Judgment has not been entered on the Lease or Modification in any
jurisdiction.
2
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.
J WILLIAM MADWJ-
DATED; t3a? ti
SHOPPING CENTER LEASE
Between
Silver Spring Square II, LP
(Landlord)
And
Three Baristas, LLC
D/B/A Cuppy's Coffee
(Tenant)
At
Silver Spring Square
Dated
E MIT
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TABLE OF CONTENTS
ARTICLE 1. INTRODUCTORY PROVISIONS .............................................................................................1
ARTICLE 2. PREMISES ...............................................................................................................................3
ARTICLE 3. TERM ........................................................................................................................................4
ARTICLE 4. RENT ........................................................................................................................................4
ARTICLE 5. TAXES AND ASSESSMENTS .................................................................................................7
ARTICLE 6. TENANT'S CONDUCT OF BUSINESS ...................................................................................7
ARTICLE 7. USE OF PREMISES .................................................................................................................7
ARTICLE 8. COMMON AREAS ...................................................................................................................7
ARTICLE 9. HAZARDOUS SUBSTANCES .................................................................................................8
ARTICLE 10 ALTERATIONS TO PREMISES ...........................................................................................9
ARTICLE 11 LIABILITY INDEMNITY AND INSURANCE .........................................................................9
ARTICLE 12. DESTRUCTION ....................................................................................................................11
ARTICLE 13. MAINTENANCE OF PREMISES .........................................................................................11
ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL .............................................................................12
ARTICLE 15. LIENS ...................................................................................................................................12
ARTICLE 16. SIGNAGE .............................................................................................................................13
ARTICLE 17. ASSIGNMENT AND SUBLETTING .....................................................................................13
ARTICLE 18. DEFAULTS BY TENANT .....................................................................................................14
ARTICLE 19. LIMITATION OF LANDLORD'S LIABILITY ........................................................................16
ARTICLE 20. SUBORDINATION AND ATTORNMENT ............................................................................16
ARTICLE 21. ESTOPPEL CERTIFICATES ...............................................................................................16
ARTICLE 22. QUIET ENJOYMENT ...........................................................................................................17
ARTICLE 23. SURRENDER AND HOLDING OVER .................................................................................17
ARTICLE 24. CONDEMNATION ................................................................................................................17
ARTICLE 25. MISCELLANEOUS ...............................................................................................................18
ARTICLE 26 LANDLORD'S RIGHT TO RELOCATE PREMISES ..........................................................20
ARTICLE 27. RADIUS RESTRICTION .......................................................................................................21
ARTICLE 28. OPTION TO EXTEND ..........................................................................................................21
ARTICLE 29. ADDITIONAL MAINTENANCE REQUIREMENTS ..............................................................21
ARTICLE 30. LANDLORD'S LIEN .............................................................................................................22
ARTICLE 31. TENANT'S FINANCIAL STATEMENTS ..............................................................................22
ARTICLE 32. SECURITY DEPOSIT ...........................................................................................................22
EXHIBIT A.. ........................................................................................ 24
EXHIBIT B ...................................................................................................................................................29
EXHIBIT B ...................................................................................................................................................29
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EXHIBIT B ..................................................... ................................................................................... ............ 30
EXHIBIT C ...................................................................................................................................................30
EXHIBIT C ...................................................................................................................................................31
EXHIBIT C-1 ................................................................................................................................................33
EXHIBIT C-2 ................................................................................................................................................34
EXHIBIT D ...................................................................................................................................................35
EXHIBIT E.. .................................................................................................................... 38
EXHIBIT F ...................................................................................................................................................39
07/02/07 INITIAL
R (• HERE
E\ S.
SILVER SPRING SQUARE
Q SHOPPING CENTER LEASE
THIS LEASE, made as of the J day of C? l l , y 2007, by and between Silver Spring
Square II, LP, a Delaware limited partnership (herein called 'Landlord'), Thdai ree Baristas, LLC, limited
liability company (herein called "Tenant').
In consideration of the obligations of Tenant to pay rent and other charges as herein provided and in consideration of the
other terms, covenants and conditions hereof, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
premises described herein for the term and subject to the terns and conditions set forth herein.
ARTICLE 1.I14TRODUCTORY PROVISIONS
1.1 FUNDAMENTAL LEASE PROVISIONS.
Certain fundamental provisions are presented in this Section in summary form to facilitate convenient reference by the parties
hereto:
(a) Tenant's Trade Name Cuppy's Coffee
(Section 7.1)
(b) Term Sixty (60) months
(Section 3.1)
(c) Premises Space Number TBD
(Exhibit "B" - Part 2)
(d) GLA in Premises 1,600 square feet
(Section 1.5)
(e) GLA in Landlord's Building 330,577 square feet
(Section 1.5)
(f) Tenant's Proportionate Share Tenant's proportionate share shall be defined as the
percentage that the gross leasable area ("GLA") of the
Premises bears to the entire gross leasable area of
Landlord's Building except as hereinafter provided. In
determining Tenant's Proportionate Share of Common Area
Costs and contribution for Taxes and Insurance, Landlord
may exclude from the GLA of the Landlord's Building any
premises containing 7,500 or more square feet of GLA if the
lease for such premises does not require the applicable
tenant to pay a prorate share of Common Area Costs, Taxes
or Insurance, but in that event, Landlord shall deduct from
the Common Area Costs, Taxes or Insurance any amounts
payable by any such tenants specifically for items included
in the Common Area Costs, Taxes or Insurance. The
Shopping Center is controlled by the Silver Spring Square
Condominium Association (the "Association') and its
Executive Board. Each Unit Owner, as defined in the
Declaration, owns its own unit and an undivided percentage
interest in the Common Area. The Real Taxes,
assessments, Insurance and Common Area Costs approved
by the Association and Executive Board are apportioned
among the units on terms set forth in the Declaration and
are the responsibility of the respective Unit Owner and are
passed through to the tenants of any unit based on its
respective lease.
(g) Minimum Annual Rent: Months Minimum Rent Minimum Rent Minimum Rent
(Monthly) (Per Sq. ft. of (Annual)
GLA)
1 -12 $4,533.33 $34.00 $54,400.00
13 - 24 $4,669.33 $35.02 $56,032.00
25-36 $4,809.33 $36.07 $57,712.00
37-48 $4,953.33 $37.15 $59,440.00
49 - 60 $5,102.67 $38.27 $61,232.00
plus applicable sales tax (Section 4.2)
(h) Percentage Rent Four percent (4%J of Gross Sales Annually Less Minimum
Annual Rent. (1 year = 4% of all Gross Sales over
$1,360,000.00)
(Section 4.4)
(i) Commencement Date The earlier of (i) one hundred twentVainety (9j20) days
after the date of Landlord's delivery of the Premises to
Tenant, or (ii) the date on which Tenant first opens for
business in the Premises.
(Section 3.1)
(j) Use Tenant is permitted to use the premises for the sale and
consumption of brewed coffee, coffee beans, espresso
beverages, iced and frozen coffee, and tea beverages, fruit
smoothies and other beverages. As an ancillary part of the
business tenant may sell pre-packaged sandwiches, salads,
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Jello, puddings, yogurt, fresh fruit, pastries, muffins scones,
cake, cookies, Biscotti, a variety of other breakfast prebaked
items, various kids menu items and Cuppy's branded items.
(Article 7)
(k) Guarantor(s) (if none, so state) Jason Winters and Joanne Winters
(Exhibit D)
(1) Default Rate: The lesser of twelve percent (12%) per annum or the
maximum lawful rate of interest permitted by applicable law
(m) Security Deposit $4,981.33
(n) Brokers Regency Realty Group and Metro Commercial - Brandon
Anapol representing Landlord and N/A representing Tenant
(Section 25.5)
(o) Estimated Common Area Costs for 2007 $2.35
per square foot per annum (Article 8)
(Subject to annual adjustment)
(p) Estimated Taxes for 2007 $0.76
per square foot per annum (Article 5)
(Subject to annual adjustment)
(q) Estimated Insurance for 2007 $0.25
per square foot per annum (Article 11)
(Subject to annual adjustment)
(r) Advertising and Promotion Fund (if none, so state) N/A
(s) Estimated Initial Monthly Payments Required
Minimum Rent $4,533.33
Additional Rent
Common Area Costs $313.33
Taxes $101.33
Insurance $33.33
Advertising and Promotion Fund (if none, so N/A
state)
Pylon Signage Fee (if none, so state) N/A
Satellite Fee (if none, so state) N/A
Total Monthly Additional Rent $448.00
State and County Sales Tax N/A
Total Monthly Payment
at Commencement Date $4,981.33
(t) Address for Notice
To Landlord c/o Regency Centers Corporation
One Independent Drive
Suite 114
Jacksonville, Florida 32202-5019
Attention: Lease Administration
With a copy to:
c/o Regency Centers Corporation
One Independent Drive
Suite 114
Jacksonville, Florida 32202-5019
Attention: Legal Department
With a copy to:
c/o Regency Centers Corporation
150 Monument Road, Suite 406
Bala Cynwyd, PA 19004
Attention: Property Management
To Tenant: Jason and Joanne Winters
15 Conifer Lane
Mechanicsburg, Pennsylvania 17050-
Phone Number: (717) 574-2184
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LEASE PROVISIONS
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" Guaranty Agreement (not an exhibit unless Guarantor is named in
Section 1.1). "Guarantor" means the guarantor or guarantors named in Section 1.1
(e) Exhibit "E" Requirements & Restrictions
(f) Exhibit "F" Tenant Improvements
(g) Exhibit "G" Shopping Center Exclusives
(h) Exhibit "H" Intentionally Omitted
(i) Exhibit "I" Intentionally Omitted
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 "B" 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(e) . 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. Unless another provision of this Lease
expressly grants to Tenant a right to certify and/or remeasure the GLA of the Premises, Tenant shall have
no such right to certify and/or remeasure or otherwise dispute the GLA of the Premises set forth in
Section 1.1(d) above.
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 shall 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
Premises when Landlord advises Tenant in writing that the Landlord's Work in the Premises (if any) has
been sufficiently completed to permit Tenant's Work to begin or when Tenant takes possession of the
Premises, whichever first occurs. Landlord's notice thereof shall constitute delivery of the Premises
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without further act by either party. Landlord will deliver possession of the Premises to Tenant in its
current "as-is" condition with the addition of only those items of work (if any) described on Exhibit "C". If
Landlord encounters delays in delivering possession of the Premises to Tenant, this Lease will not be
void or voidable, nor will Landlord be liable to Tenant for any loss or damage resulting from such delay. 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 delay.
Notwithstanding the foregoing, Landlord will 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 occupies the Premises prior to the Commencement Date, such
early occupancy shall 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 (if any). Landlord will give Tenant access for
locks to be changed upon: (i) Tenant's acceptance of the Premises, (ii) Landlord's 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. ?&) J J
On or before 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 Commencement as Owner identifying 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.
ARTICLE 3. TERM
3.1 TERM OF THIS LEASE.
The Term of this Lease shall commence on the Commencement Date specified in Section 1.1(i) and shall
continue for the number of months set forth in Section 1.1(b).
ARTICLE 4. RENT
4.1 TENANT'S 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 installment 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 the 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.
4.4 PERCENTAGE RENT.
Tenant agrees to pay Landlord a percentage rent (the "Percentage Rent") equal to the percentage set
forth in Section 1.1(h) times the amount of Gross Sales (as defined below) made during each Lease Year
of the Term, less the amount of Minimum Annual Rent paid by Tenant for such Lease Year. The period
between the Commencement Date and the end of the first Lease Year shall each be considered a Lease
Year for the purpose of computing Percentage Rent. Notwithstanding anything contained in this Lease to
the contrary, if the number of square feet of floor space in the Premises is reduced at any time during the
Lease term due to casualty, condemnation or other cause to an amount less than that set forth in Section
1.1(d), then the break point for the particular calendar year and for each subsequent calendar year during
the Lease Term shall be reduced to an amount equal to the quotient of (a) the aggregate Minimum
Annual Rent set forth in Section 1.1(g) as such amount may be adjusted throughout the Term of this
Lease, payable during such calendar year divided by (b) the Percentage Rental Rate set forth in Section
1.1(h) ("Percentage Rental Rate").
4.5 MONTHLY PAYMENT OF PERCENTAGE RENT; YEAR-END ADJUSTMENT.
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(a) Tenant shall furnish to Landlord, within twenty (20) days after the end of each calendar
month during the Term, a complete statement, certified by Tenant (or a responsible officer thereof if
Tenant is a corporation or limited liability company), of the amount of Gross Sales made from the
Premises during said month, the statement to be in such form and style and contain such details and
breakdown as Landlord may require. Tenant shall also furnish to Landlord with each such monthly
statement a copy of any sales tax report filed with any taxing authority. Tenant shall pay to Landlord
simultaneously with each said monthly statement the amount which is equal to the percentage set forth in
Section 1.1(h) times the amount of Gross Sales made during the month represented by said statement,
minus the Minimum Annual Rent paid for such period.
(b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Lease
Year a complete statement certified by Tenant (or a responsible officer thereof if Tenant is a corporation
or limited liability company), showing in reasonable detail the amount of Gross Sales made during the
preceding Lease Year and the amount paid to Landlord pursuant to Section 4.5(a) in such Lease Year.
An adjustment shall thereupon be made with respect to the Percentage Rent as follows: If Tenant has
paid to Landlord an amount greater than Tenant is required to pay as Minimum Annual Rent and
Percentage Rent under the terms of Sections 4.2 through 4.4, Tenant shall receive a credit of such
difference or, if the Lease has terminated, Landlord will refund such difference to Tenant within thirty (30)
days after receipt of Tenant's statement. If it is determined that Tenant has paid an amount less than was
required to be so paid, then Tenant shall forthwith pay such difference within thirty (30) days after notice
from Landlord.
(c) If any reports of Gross Sales required hereunder are not received by Landlord or
Landlord's designee within ten (10) days following the due date for such report and such failure continues
for an additional three (3) days after notice from Landlord of such failure, Tenant will pay to Landlord the
sum of One Hundred Dollars ($100.00). Acceptance of such late charge shall not constitute a waiver of
Tenant's default with respect to the submittal of any such report nor prevent Landlord from exercising any
of the other rights and remedies available to Landlord under this Lease, at law or in equity. The parties
hereby agree that such charge represents a fair and reasonable estimate of the cost which Landlord will
incur by reason of the late submittal of the report.
4.6 GROSS SALES.
(a) "Gross Sales" means the actual prices of all goods, wares, internet 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 collect,
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 delivery or performance is made from the Premises or
from some other place and regardless of the place of bookkeeping for, payment of, or collection of any
account; or (ii) made or performed by mail, telephone, or telecopy orders received or filled in, at or from
the Premises; or (iii) made or performed by means of mechanical and other vending 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 Tenant's
business and not for the purpose of consummating a sale made in, at or from the Premises; (ii) returns to
shippers or manufacturers; (iii) 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 Tenant's 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.
4.7 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
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 Term. 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 if 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
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at all reasonable times during the aforesaid retention period to the inspection of Landlord or its duly
authorized representatives, who shall have full and free access to such books and records and the right
to require of Tenant, its agents and employees such information or explanation 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) shall be accompanied by a
certificate signed by Tenant (or, if Tenant is a corporation or limited liability 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 examined the report for the period in question, and that such report
accurately represents the Gross Sales of such period. Landlord shall be permitted to divulge the contents
of any of the statements provided for in Sections 4.5(a) or (b) only 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.
4.8 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.
4.9 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."
4.10 WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTION; LATE CHARGE.
Rent payable by Tenant under this Lease shall be paid to Landlord on or before 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 not 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 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 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
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 constitute a payment of
Rent as provided in this Lease.
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ARTICLE 5. TAXES AND ASSESSMENTS
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 (including EDU's and
impact fees) 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 installment 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 alterations 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 customary in the Shopping Center.
ARTICLE 7. USE OF PREMISES
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.
7.2 REQUIREMENTS AND RESTRICTIONS.
Tenant agrees to comply with the Requirements and Restrictions set forth on Exhibit "E" attached hereto.
ARTICLE S. COMMON AREAS
8.1 MAINTENANCE.
Landlord agrees to maintain, as part of Common Area Costs, the Common Areas including the roof in
good condition; provided, however, that the manner in which the Common Areas shall be maintained
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
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
not 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.
8.2 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, lighting facilities and similar areas and
facilities situated within the Shopping Center which are not reserved for the exclusive use of any
Shopping Center occupants.
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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, improvements,
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 of 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
possible 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 respect to such year. If Tenant's
Proportionate Share of such costs is less than Tenant's payments so made, Tenant shall be entitled to a
credit of the difference or, if 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 if 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
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
remediation 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 Tenant's business, but Tenant's
liability with respect to such materials shall be as set forth in this Article.
9.2 INDEMNIFICATION.
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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,
clean-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
Shopping 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; DAMAGES.
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".
10.2 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 form and substance satisfactory to
Landlord and naming Landlord as an additional insured thereunder.
ARTICLE 11. LIABILITY. INDEMNITY AND INSURANCE
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.
11.2 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, (ii) 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
Shopping 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 11.2 shall survive
the expiration or earlier termination of this Lease. Tenant's covenants, agreements and indemnification in
Sections 11.1, 11.2 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.
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
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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 $500,000.00 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, Tenant's 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 held in trust by Tenant for the repair, reconstruction, 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 form acceptable
to Landlord by insurance companies with general policyholder's 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 like extent. All such
policies of insurance shall contain a provision that the company 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. All 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 time to time determine and public liability insurance in such amounts
as Landlord 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,
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 shall 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 requirement 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.
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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 Landlord's insurance rates.
11.7 LIMIT 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.
ARTICLE 12. DESTRUCTION
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; (ii) are substantially damaged (i.e., the cost to repair
or replace exceeds 50% 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; (iv) 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 (50%) 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.
12.3 TENANT'S 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 events 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
(b) the damage or destruction of the Landlord's Building occurs within the last twelve
(12) months of the Term.
12.4 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
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shall have given Landlord written notice and afforded Landlord a reasonable opportunity to effect the
same after such notice.
13.2 TENANT'S 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 Premises and the service
meter, all fixtures, HVAC equipment (whether such HVAC equipment is located inside or outside the
Premises) in compliance 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 Tenant's 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 filters. All 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 Tenant's
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.
Upon at least twenty-four (24) hours prior verbal or written notice to Tenant (except in an emergency in
which event no notice shall be required), Landlord and its agents, representatives, and contractors may
enter into or upon any part of the Premises at any reasonable time (except in an emergency in which
event entry may be at any time) to inspect the condition, occupancy or use thereof and to make repairs to
the Premises and the Shopping Center including any spaces adjoining the Premises. Upon at least
twenty-four (24) hours prior verbal or written notice to Tenant, Landlord and Landlord's representatives
may enter the Premises during business hours for the purpose of showing the Premises to purchasers,
mortgagees or insurers of all or a portion of the Shopping Center or, during the last year of the Term of
this Lease, to prospective tenants of the Premises. During the last year of the Term of this Lease,
Landlord may erect a suitable sign on the Premises stating the Premises are available to let. 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.
ARTICLE 14. UTILITIES AND GARBAGE DISPOSAL
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. Landlord shall
not be liable for any interruption or failure whatsoever in utility services, nor shall any such failure or
interruption constitute 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
trash and garbage from the Premises. Tenant will furnish 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. Tenant shall pay for all EDU's required due to its specific use.
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
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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 Tenant's 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 competent jurisdiction or otherwise. If 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 lien 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, (iii) 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.
ARTICLE 17. ASSIGNMENT AND SUBLETTING
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 term "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 tenant's submission of (i) 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) if 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 should Tenant request an assignment of
this Lease within the first eighteen (18) months of the initial lease term.
17.2 NO RELEASE.
No Transfer will release Tenant of Tenant's obligations under this Lease or alter the primary liability of
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
terms 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 to 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 Tenant's Rent obligations).
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17.4 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, persons 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 shall not be applicable to Tenant or to any
Guarantor if it is a corporation whose voting stock is listed 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.
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;
(b) Tenant fails in the observance or performance of any of its other covenants,
agreements or conditions provided for in this Lease, and said failure 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;
(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
instituted against Tenant, the Premises shall not become an asset in any such
proceedings;
18.2 LANDLORD'S REMEDIES.
If any Event of Default occurs, Landlord may treat the occurrence of such event as a breach of this Lease
and, in addition to any and all other rights or remedies of Landlord in this Lease or by law or in equity
provided, Landlord shall have the option and right without further notice or demand to Tenant or any other
person to:
(a) declare the Term ended and to enter the Premises and take possession thereof and
remove all persons therefrom, and Tenant shall have no further claim thereon or
thereunder;
(b) bring suit for the collection of Rent as it accrues pursuant to the terms of this Lease
and damages including consequential damages without canceling this Lease, and
with or without entering into possession of the Premises;
(c) retake possession of the Premises from Tenant by summary proceedings or
otherwise, either with or without terminating this Lease, and to sue Tenant for an
amount equal to the remaining Rent to become due during the Term (or any
extension period then in effect) discounted to its present value at a discount rate
equal to the U.S. Treasury Bill or Note rate with the closest maturity to the remaining
term of the Lease as selected by Landlord. Landlord's damages shall include the
actual or estimated costs of reletting and alteration, leasing commissions and other
costs of Landlord in connection therewith. Alternatively, Landlord may, after such
retaking of possession, relet the Premises or any portion thereof. Tenant shall pay to
Landlord all monthly deficits in Rent after any such re-entry in monthly installments as
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the amounts of such deficits from time to time are ascertained. Such deficiency shall
be calculated and paid monthly; Tenant shall have no right to any excess. Tenant
shall also pay to Landlord any costs and expenses, including, but not limited to,
brokerage commissions and attorneys' fees, incurred by Landlord in such reletting or
in making such alterations and repairs not covered by the rental received from such
reletting. Should Landlord enter or take possession of the Premises as aforesaid,
Landlord shall have the right, but not the obligation, to remove all or any part of the
personal property located therein and may place the same in storage at a public
warehouse at the expense and risk of the owner or owners thereof.
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.
18.4 TENANT'S PROPERTY TO REMAIN.
If there is an Event of Default, all of the Tenant's 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
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
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OF 1951, AND AGREES THAT FIVE (5) DAYS NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY
SUCH CASE.
ARTICLE 19. LIMITATION OF LANDLORD'S LIABILITY
19.1 LANDLORD'S DEFAULT.
Except as otherwise provided in this Lease, Landlord shall be in default under this Lease if Landlord fails
to perform any of its obligations hereunder and said failure continues for a period of thirty (30) days after
written notice thereof from Tenant to Landlord (unless such failure cannot reasonably be 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
hereunder shall be limited to the extent (i) Tenant has expressly waived in t?is Lease any of such rights or
remedies and/or (ii) 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.
19.2 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 shall 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
attorn to any successor, assignee, mortgagee or ground lessor of Landlord.
ARTICLE 20. SUBORDINATION AND ATTORNMENT
20.1 SUBORDINATION OF LEASE AND TENANT'S 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, modifications,
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, attorn 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 shall attorn 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
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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. QUIET 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.
Tenant's rights under this Lease shall be subject to all documents of record, whether recorded prior to or
after the date of this Lease, including but not limited to the REA.
ARTICLE 23. SURRENDER AND HOLDING OVER
23.1 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 clean, 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
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 without 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.
23.2 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 shall be subject to
immediate eviction and removal, and Tenant shall upon demand pay to Landlord, as liquidated damages,
a sum equal to all Percentage Rent, if 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 shall indemnify, 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 23.2 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.
If the whole of the Premises shall 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 (20%) 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 incurred
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
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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 title to (i) twenty percent (20%) or more of the GLA of Landlord's Building or (ii) 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, title 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 Tenant's own right on account of any and all damage to Tenant's business by
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 govern.
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
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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
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 Term. 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 located shall govern 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 necessary to perform
such obligations without liability to Tenant for any loss 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.
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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 vest 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), if 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, Tenant's 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.
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 Tenant's 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 (if 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 shall 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 ("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. 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.
ARTICLE 26. LANDLORD'S RIGHT TO RELOCATE PREMISES
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.
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.
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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.
ARTICLE 27. RADIUS RESTRICTION
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 five (5) 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 the date of
this Lease.
ARTICLE 28. 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
61 - 72 $39.42
73 - 84 $40.60
85 - 96 $41.82
97 - 108 $43.07
109 - 120 $44.37
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 if 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 if 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 if 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.
5. The Lease has ever been assigned.
ARTICLE 29. ADDITIONAL MAINTENANCE REQUIREMENTS
If Tenant uses the Premises for the purpose of operating a restaurant, hair salon, nail salon, barber shop
or similar use, Tenant shall, at its sole cost and expense, clean all plumbing and sewer lines up to the
main sewer line on a regular basis, no less often than quarterly and provide Landlord with written
evidence thereof. Tenant shall also be responsible and shall pay for any repairs to the roof and other
components of the Shopping Center caused by grease vented from the Premises. In addition, Tenant
shall at its sole cost and expense, install a venting or exhaust system approved by Landlord in writing in
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order to remove any noxious fumes or odors caused by Tenant's use of the Premises.
ARTICLE 30. LANDLORD'S LIEN
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 TENANT'S 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 31. 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).
ARTICLE 32. SECURITY DEPOSIT
32.1 SECURITY.
As security for the faithful performance by Tenant of all of the terms and conditions of this Lease on the
Tenant's part to be performed, Tenant shall concurrently with Tenant's execution and delivery of this
Lease to Landlord, deposit with Landlord the Security Deposit required by Section 1.1(m). The Security
Deposit shall be held by Landlord as security for the full and faithful performance by Tenant of all of the
terms, covenants and conditions of this Lease to be performed by Tenant during the Term. The Security
Deposit is not, and may not be construed by Tenant to constitute Rent for the last month or any portion
thereof. If Tenant defaults with respect to any of its obligations under this Lease, Landlord may (but shall
not be required to) use, apply or retain all or any part of the Security Deposit for the payment of any Rent
or any other sum in default, or for the payment of any other amount, loss or damage which Landlord may
spend, incur or suffer by reason of Tenant's default. If any portion of the Security Deposit is so used or
applied, Tenant shall, within ten (10) days after demand therefor, deposit cash with Landlord in an
amount sufficient to restore the Security Deposit to its original amount. Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to interest on
the Security Deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be
performed by it, the Security Deposit or any balance thereof shall be returned to Tenant within two (2)
weeks following the expiration of the Lease Term, provided that Landlord may retain the Security Deposit
until such time as any amount due from Tenant under this Lease has been determined and paid in full.
32.2 TRANSFER OF DEPOSIT.
In the event of a sale of the Landlord's Building or lease of the Landlord's Building or the land on which it
stands, subject to this Lease, the Landlord shall have the right to transfer this Security Deposit to the
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vendee or lessee and the Landlord shall thereupon be released from all liability for the return of such
Security Deposit, and Tenant shall look to the new landlord solely for the return of the said Security
Deposit. This provision shall apply to every transfer or assignment made of the Security Deposit to a new
landlord. The Security Deposit deposited under this Lease shall not be mortgaged, assigned or
encumbered by the Tenant without the written consent of the Landlord. In the event of any authorized
assignment of this Lease, Landlord shall have no further liability with respect to the return of said Security
Deposit to the Tenant or assignee.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the day and year
first above written.
LANDLORD:
i?
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Hess
Witness
M 'tness.
f?
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W itnes
SILVER SPRING SQUARE II, LP
a Delaware Limited Partnership
By: Regency Realty Group Inc.
a Florid Corporation
Its: G er I Partn
By' j * !C-Kn
Its: VWE °°-rRESME-N
TENANT:
THREE BARISTAS, LLC
a limited liability
company
By:
Its: 6gs? LJi.ltt.'S w-n e
9 ptuvk-t?' ((?t r /j Gy c n ?
- JU0.nne LUIn, fP/ S
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 event, 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
aff ixed.
Individual: 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.
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EXHIBIT A
LEGAL DESCRIPTION OF SHOPPING CENTER
KREITZER / SPEEDWAY TRACT
PREMISES "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 Silver 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 formerly 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 Lambs Gap Road; thence along the
same, South 11 degrees 15 minutes 45 seconds East 82 plus or minus feet 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 corner 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
Home 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:
07/02/07
r? C INITIAL
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BEGINNING at a point on the Western right-of-way line of Lambs Gap Road at the
Northeastern corner of lands of Robert Yentzer; thence along the Northern line of lands of
Robert Yentzer, South 66 degrees 58 minutes 30 seconds West 68.78 feet to a point on the
Northeast corner 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 Southeastern 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
corner 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 Lambs
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 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 38-07-0457-013.
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 line 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 Lambs
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
PREMISES "D"
07/02/07 INITIAL
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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 beginning.
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.
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.
07/02/0
INITIAL
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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. 1 I 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. I 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.
EXCEPTING thereout and therefrom (if any) the premises as more fully described in the following deed:
NONE
CARTER TRACT
PREMISES A
07/0:!/07
INITIAL
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ALL THAT CERTAIN lot of land, hereditaments 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 Pike, 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 along 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 prior
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. Caner 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 spike; 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
07/02/07
INITIAL
HERE
EXHIBIT B
PART 1 - SITE PLAN OF SHOPPING CENTER LAND
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PART 2 - LEASING PLAN
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EXHIBIT C
DESCRIPTION OF TENANT'S WORK AND WORK TO BE PERFORMED BY LANDLORD
A. Procedure for the Preparation and Approval of Working Drawings and Specifications.
Tenant shall, within thirty tern (430) days after the date 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 sitework 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 demolition/replacement
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 by Landlord unless iterp is specifically noted in paragraph B
or Exhibit C-2.
If Tenant fails to submit its plans and specifications within the 49-day period provided in paragraph 1, the
Landlord may, at its option, in addition to all other remedies available for Tenant's default, have the sole
right to cancel this Lease. Indulgences granted to Tenant shall not be construed to be a waiver of the
provisions of this paragraph. 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.
Landlord's Work.
LANDLORD HAS NO OBLIGATION TO PERFORM ANY WORK WITHIN THE PREMISES OR THE
SHOPPING CENTER UNLESS STATED IN EXHIBIT "C-2". IF NO EXHIBIT "C-2" IS ATTACHED (AND
SIGNED BY BOTH LANDLORD AND TENANT), TENANT AGREES TO ACCEPT THE PREMISES IN
ITS CONDITION "AS IS" AND SHALL BE OBLIGATED TO PERFORM SUCH WORK AS IS
NECESSARY TO RENDER THE PREMISES USEFUL FOR THE PURPOSES LEASED.
C. Tenant's 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.
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.
07/02/07
INITIAL
HERE
6. Ceilings - all ceilings, including lighting coves and other special effects. Ceiling
to include insulation no less than R 19 installed no lower than the storefront glass. Requests
for sheetrock ceilings must be approved by Landlord. Sheetrock ceilings will be allowed when
installing a thirty inch (30") opening access panel within Tenant space.
7. Show Window Backgrounds - all show window backgrounds, show windows,
show window floors, show window ceilings and show window lighting installations.
8. Walls and Wall Finishes - all interior partition walls within the Premises and all
finishes on walls, including placing the finishes and installing the insulation on and within the
partitions erected by Landlord.
Doors - all doors and hardware within the Premises. Service doors to exterior are provided by Landlord.
9. Floor Coverings - all floor coverings and floor finishes.
10. Interior Final Finishes - all interior painting, papering, paneling and decoration.
11. Plumbing - all plumbing, including connections to utility systems.
12. Electrical and Telephone Systems and Equipment - furnishing and installation of
all interior distribution panels, lighting panels, power panels, conduits, outlet boxes, switches,
outlets, wiring, lighting fixtures and lamping; furnishing and installation of conduit and outlets
as required for Tenant's telephone service.
13. Tenant will be responsible for costs of installing a rear door unless a rear door
already exists or is required by Code.
14. Exterior conduits for utility lines and boxes must be painted to match fascia of
building.
D. General.
1. Landlord, Tenant or utility company shall 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, column space or other parts of the Premises, and to maintain
same in a manner which does not interfere unnecessarily with Tenant's use thereof.
2. The Tenant shall prepare all its plans 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. Tenant's 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 and utility deposits shall be
furnished and installed at Tenant's expense.
07/02/07
INITIAL
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EXHIBIT C-2
LANDLORD'S WORK
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 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 frame 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 50'. Service
door(s) to be 20 gauge painted with building standard hardware to include lock set and storm
chain.
Standard Finishes
5. Floors: 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. Ceilin : Ceiling (10'- 0") ten feet in height, 2'-0" x 4'-0" non-combustible lay-in acoustical ceiling
tiles.
7. Plumbina: 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.
8. Heating. Cooling, Ventilation: Landlord will provide a combination heating and cooling unit(s)
complete with duct 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 per 350 square feet of sales
area.
9. Fire Protection: 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. Electrical Power. Power to be individually metered by the local utility company. Landlord shall
provide one 24 circuit, 200 amp panel. Convenience outlets (120/208) will be provided
on the side perimeter walls, two per side wall, four total.
11. Lighting: Landlord will provide one (1), 3-lamp, 2'-0" x 4'-0" recessed fluorescent fixture with
acrylic tense 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 fan/light. Exit signs and emergency lights will be provided per local code.
12. Telephone: PVC conduit stubbed out at rear wall adjacent to electrical panel. Tenant to
provide all wiring, backboards, connections and equipment.
13. Tenant Sionaae: Landlord to provide conduit from the backside of the sign band to tenant
panel and time clock. Landlord to provide J-Box, conduit and timer. Tenant to provide actual
hardwiring, signage and installation.
14. Store Address Letters: Landlord to provide permanent, specified, uniform suite
identifying number that will be attractive for the life of the project.
07/02/07
INITIAL
,??
HER
EXHIBIT D
ABSOLUTE UNCONDITIONAL GUARANTY AGREEMENT
KNOW ALL MEN BY THESE PRESENCE: That,
THIS Absolute Unconditional Guaranty Agreement (the "Guaranty") is executed and delivered this /
day of?I X 200 by Jason Winters and Joanne Winters, jointly and severally (herein
collectively, " uarG antor) in favor of Silver Spring Square 11, LP, a Delaware limited partnership,
("Landlord").
RECITALS:
Three Baristas, LLC, a limited liability company organized and existing under the laws of the State of
("Tenant"), and Landlord are party to that certain Shopping Center Lease dated
all l W 2007 (the "Agreement").
In order to induce Landlord to enter into the Agreement, Guarantor agreed to execute and deliver to
Landlord this Guaranty.
Guarantor acknowledges that Landlord would not have entered into 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 fact 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.
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 claim relating to the
Obligations 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 Guarantor'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, reorganization 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.
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.
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.
07/02/07
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3 nn
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.
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 shall 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, remedy and power granted to the
Landlord under this Guaranty or allowed it by law or by the Agreement or any other agreement shall be
cumulative and not exclusive of any other, and may be exercised by the Landlord from time to time.
The Guarantor hereby waives notice of acceptance of this Guaranty and notice of any obligation or
liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor
or non-payment of any such obligation or liability, suit or the taking of other action by Landlord against,
and all other notices whatsoever to, the Tenant, the Guarantor or others.
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 fail 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.
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 terms, 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.
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 effect 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 (in 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.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA 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 COMMONWEALTH OF
PENNSYLVANIA, UNITED STATES OF AMERICA, OVER ANY DISPUTES ARISING OR RELATING TO
THIS GUARANTY.
07/02/07
INITIAL
HERE J(??
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:
Witness
1
Cico4 I `
04-1 L?j?
fitness
on Winters
Address: 15 Conifer Lane, Mechanicsburg,
Pennsylvania 17050
S.S. #: 590165513
/Joanne Winters
L
Witness Address: 15 Conifer Lane, Mechanicsburg,
Pennsylvania 17050
S.S. #: 159-52-9262
r yCi,a? :a ?I
Witness L-) U
Guarantor acknowledges its address and will notify Landlord of any changes thereto.
07/02/07
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HERE-- /
EXHIBIT E
Tenant:
1. will not, without Landlord's consent, conduct or permit to be conducted any auction, 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, radio 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 will 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 burn 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 architectural treatment
thereof, or install any visible protective devices such as burglar bars or security shutters or window tinting,
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 place, 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 Tenant's 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.
07/02/07
INITIAL
r p-,ply,
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 deliver 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 shall 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 Landlord'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 shall 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
performed 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 (i) 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 (iii) 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
contractors 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 shall 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.
07/02/07
INITIAL
EXHIBIT G
EXCLUSIVE and RESTRICTED USES
Best Buv
Landlord shall not permit any person or entity other than Best Buy (or Best Buy's parent company, affiliates,
assignees, sublessees and assigns) in space leased directly or indirectly from Landlord adjacent to the Shopping
Center, to sell, rent, service and/or warehouse (and, if applicable, install 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;
books 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 Dress 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, Steinmart 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 retailer; (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 open 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 lesser of (y) one thousand (1,000) square
feet, or (z) five percent (5%) 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 and any principal shareholders
or partners of any partner which is a corporation or shareholder; or (C) if Landlord is a trust, 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.
We mans
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 Shopping 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 department within a discount department store; a warehouse club store such
as Costco 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 Ceasar'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 nonprepared foods, snack 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 foregoing 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.
• .-, ai`. - 1 QED
Longhorn Steakhouse
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 similar 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 Term, Lessor shall not allow on the adjacent property
presently containing the Advance Auto Parts Store (as identified on Exhibit "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 force and effect, either directly or indirectly, lease to any third
person any land or building, whether presently owned or hereafter acquired, within two (2) mile(s) from the leased
premises for the purpose of conducting thereon a business similar to that being conducted by Tenant (i.e., Advanced
Auto) upon the ]eased premises, nor shall Landlord itself, 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 ]eased 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 tires, 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 waiter/waitress service which both (i) serves alcoholic beverages and (ii) features a menu
typically offered by an American grill and bar restaurant (collectively, the "Protected Use") such as, for example
purposes only, Applebee's, Bennigan's, Cheddar's, Damon's, Houlihan, Max & Irma's, O'Charley's, Ruby Tuesday'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 similar restaurant such as,
but not limited to, a Burger King, McDonald's, Carl's Jr., Chick-Fil-A, Subway, Taco Bell, Del Taco or Wendy's; (2)
any bakery or coffee shop 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 fijitas), 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, Mimi's Cafe, Trail Dust Steakhouse, Ryan's Steakhouse, Golden
Corral, Sizzler, Cracker Barrel, El Torito, El Torito Grill, Chevy's, On The Border, Cozymel's, 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.
Ross Stores
No tenant or occupant of the Shopping Center [other than (i) Tenant (i.e., Ross), (ii) Target Corporation, Wegmans
Food Markets, Inc., Chili's Grill & Bar (Brinker Penn Trust, 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 premises 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 Tenant (i.e., Ross) has "Gone Dark"
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 similar 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) Marshalls or TJ Maxx Store
not to exceed thirty five thousand (35,000) square feet of Leasable Floor Area provided that such lease specifically
excludes Tenant (i.e., Ross) from the application of the exclusive in form and substance reasonably acceptable to
Tenant. "Off-Price Use," for the purposes hereof, shall mean 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 Date, examples of
r;_ „ 2
Off Price Use retailers include such retailers as T.J. Maxx, Marshall's, Nordstrom Rack, Goody's, Factory 2U,
Burlington Coat, Steinmart, and Filene's Basement.
Notwithstanding the paragraph above, Landlord may lease or sell the whole or part of an Exempted Building (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 Building shall mean the Target Building or any building that is sold 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 Kohls, 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 (l) 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 furniture; 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
"Related Land") 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 merchandise: (a) linens and domestics; (b)
bathroom items (excluding plumbing hardware); (c) housewares (excluding furniture, and major appliances or
"white goods"); (d) frames and wall art (but the foregoing shall not prohibit a store that sells custom frames that are
made to order as opposed to readymade frames of standard sizes and provided that a fine 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 'Exclusive 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, rental and/or distribution of Exclusive Items within an aggregate area (which shall include an allocable portion
of the aisle space adjacent to such sales, rental and/or distribution area) not to exceed the lesser of (x) five (5%)
percent of the Floor Area of such tenant's or subtenant's premises, or (y) two thousand (2,000) square feet 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, Kohl's, Macy's or Target), (ii) discount club (such as, by way of example,
Costco, BJ's Wholesale Club or Sam's Club), (iii) home improvement center (such as, by way of example, Home
Depot or Lowe's), or (iv) supermarket (such as, by way of example, Wegmans), 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 paragraphs 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 Center 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 any provision that purports to restrict or prohibit, or under which the grantor agrees that
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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 exclusive right shall 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 #I 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.
Maggie 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 Curt
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 services, with the exception of a full service salon or spa exceeding 5,000 sq. ft. which may have tanning
services limited to two (2) beds.
Ais en Dental
Landlord will not lease to any tenant for the purpose of the operation of a retail dental service center, office and
laboratory and the providing of management and dental laboratory service
Cheebureer Cheebureer
Hamburgers, cheeseburgers, and fries. Competing tenants include, but are not limited to: Five Guys Burgers and
Fries, Fat Burgers, Fuddruckers, Johnny Rockets, Steak n' Shake, Red Robin, Cheeseburger in Paradise, Island's
Backyard Burgers
Panera
Excluding the store operating as Target on the parcel labeled "Target" on Exhibit A-1 and the store operating as
Wegman's on the parcel labeled "Wegman's" on Exhibit A-1, and their successors, assigns or a replacement tenant
larger than 130,000 square feet and provided an Event of Default is not occurring beyond any applicable cure
periods, Landlord shall not enter into any lease for space within the Shopping Center (including any adjacent retail
space or parcels which Landlord owns or controls) to any tenant that operates, as a primary part of their business, a
bakery-cafe type/style restaurant. By way of example and for clarification the foregoing restrictions shall include
without limitation businesses known as Brueggers Bagels, Manhattan Bagels, Einstein Bagels, Chesapeake Bay
Bagels, Atlanta Bread, La Madeline, Cosi, The Comer Bakery, Quizno's, Schlotzsky's, Jason's Deli, McAllister's
and other similar local, regional or national operations. This exclusive shall not apply to "Starbucks", "Subway," a
pizzeria, or those tenants (within the space or on parcels which Landlord owns or controls) within the Shopping
Center, which are now or thereafter open and operating pursuant to a written lease agreement executed prior to the
date of Tenant's execution of this Lease (an "Existing Tenant"). Each and every Existing Tenant is specified on
Exhibit M attached hereto and incorporated herein.
Chick-fil-A
Lanlord covenants and agrees that so long as the Demised Premises is being used as a guick-service restaurant
selling or serving chicken as a principal menu item, the outparcels on the portion of the Adjoining Property labeled
"Subject To Chicken Exclusive" on Exhibit "B-3" shall not, during the term of this Lease, be leased, used or
occupied as a quick-service restaurant salling or serving chicken as a principal menu item; provided, however, any
tenants under any leases that were fully-executed prior to February 1, 2007 that did not contemplate this restriction
shall not be subject to this restriction but Landlord covenants and agrees not to consent (if such consent is required)
to a change of a use that would violate the foregoing restriction. For purposes hereof, "a quick-service restaurant
selling or serving chicken as a principal menu item" shall mean any restaurant deriving thirty-five percent (35% or
more of its gross sales from the sale of chicken. It is mutually agreed that the covenants set forth in Section 28 and
in this Section 29 shall run with the title to the Land and the Adjoining Property and that such restrictions shall be
set forth in the Short Form Lease. If said covenants are breached, on-half (1/2) of all payments required to be made
by Tenant hereunder shall be abated fro so long as such breach continues. The total sums thus abated shall be partial
liquidated damages for such breach, but that therefore, the parties agreeing that Tenant shall sustain proximate and
substantial damages from such breach, but that it will be very difficult if not impossible to ascertain the amount of
such damage. In addition to this remedy, Tenant shall be entitled to injunctive and other appropriate relief, whether
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under the provisions of this Lease or otherwise. Landlord acknowledges that Tenant is relying upon said covenants,
representations and warranties in executing this Lease.
Znizza
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 pizza.
Wachovia
The tern "Financial Services" shall include state and national banks, savings banks, credit unions, and savings and
loan institutions regulated by the state or federal government. During the Term, but subject to the Shopping Center
Documents and any tenant leases in existence as of the Effective Date, Landlord covenants and agrees that it will not
lease; or consent to the use of any other floor space in the Shopping Center, other than the Premises, for a Financial
Services use (which prohibition shall include exterior free-standing and so-called "through-the-wall" ATMs)
provided, however, (i) one other retail bank shall be permitted on one other pad in the Shopping Center, (ii)
insurance companies and/or agencies and retail brokerage firms shall be permitted anywhere within the Shopping
Center, and (iii) the exclusive granted to Tenant herein shall not apply to in-line space within the Shopping Center.
PROHIBITED USES
event;
Any fictitious going-out-of-business sale, lost-our-lease sale or similarly advertised
2. Any central laundry, dry cleaning or Laundromat (except that a dry cleaner that performs
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
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 not 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 "Y' or unrated 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 therapeutic 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;
Any night club, discotheque, or dance hall (except as incidental to a sitdown restaurant
Any night club, discotheque, or dance hall (except as incidental to a sit
permitted hereunder);
Any gun 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 lube oil change service, tire center or gasoline or service station or facility,
except that any of the foregoing uses may be located on an outparcel within Unit 3, Unit 5 or Unit 6 as designated on
the Site Plan;
10. Any carnival, amusement park or circus;
Any medical clinics or medical offices;
12. Any supermarket within Unit 4 as designated on the Site Plan, provided 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.
Or.?;
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 permitted full-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..
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,
"Grossman'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.
6l'ti.?
FIRST MODIFICATION TO LEASE AGREEMENT
THIS FIRST MODIFICATION TO LEASE AGREEMENT ("Agreement"), made as of this
day of? 200,8'rj by and between Silver Spring Square II, L.P., a
De a-?-ware limited partnershrp (herein called "Landlord"), and Three Baristas, LLC, a
Pennsylvania limited liability company d/b/a Cuppy's Coffee (herein called "Tenant").
WITNESSETH: That,
EXHIBIT
WHEREAS, Landlord and Tenant, are parties to that certain Shopping Center Lease
dated July 9, 2007 covering certain premises (approximately 1,600 square feet) in Silver Spring
Square located in Silver Spring, Pennsylvania, (the "Lease"); and
WHEREAS, Landlord and Tenant wish to modify certain terms of the Lease effective as
of September _ I_ , 2008 (the "Effective Date").
NOW, THEREFORE, in exchange for the mutual covenants and promises contained
herein and for other valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. The above recitals are hereby confirmed as true and correct and are reaffirmed herein.
2. As of the Effective Date, Minimum Annual Rent shall be reduced for a period of six (6)
months as follows:
Minimum Annual Rent: Months Minimum Minimum Annual
Annual Rent Rent
(Monthly) (Per Sq. ft. of GLA)
September 1, 2008 - $2,666.67 $20.00
February 2009
3. Should Tenant at any time prior to February 28, 2009 become in default of any term of the
Lease, then Section 2 of this Agreement shall become immediately null and void and as a
result the Minimum Annual Rent shall immediately revert back to the amount stated in
Section 1.1(g) of the Lease.
4. 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 ("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. 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 the Lease, be designated an
SDN, Landlord may, at its sole option, terminate the Lease.
5. Landlord shall have the option to terminate this Lease at any time by serving written notice
of such election upon Tenant stating that Landlord has elected to terminate this Lease
effective as of the date specified in the notice (which effective date shall not be less than
ninety (90) days after the date of exercise of the option). On or before the date of
termination, Tenant shall deliver possession of the Premises to the Landlord in the condition
required by this Lease, including any and all keys to the Premises, with all Minimum Rent,
additional rent and other charges which have accrued hereunder through the date of
termination or the date possession of the Premises is returned to Landlord, whichever is
later, paid in full. Landlord and Tenant shall be relieved of any liability or obligations that first
accrues on or after the effective date of such termination except for those provisions that
L,
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specifically state that they survive the termination of this Lease.
6. Tenant hereby agrees that neither it nor its officers, directors or employees (all of the
foregoing are collectively referred to as "Representatives") shall at any time directly or
indirectly disseminate or disclose any of the terms stated in Section 2 of this Agreement
pertaining to the agreement to reduce the Minimum Rent and Operating Expenses Rent or
that Landlord has agreed to the reduction of Minimum Rent and Operating Expenses Rent
(hereinafter "Confidential Information") to any person. The term "person" includes without
limitation any individual, entity or organization. "Person" shall exclude any creditor of Tenant
or the completion of an application for credit or as part of a legal proceeding in which Tenant
is ordered to disseminate the Confidential Information. These permitted disclosures shall not
be deemed a waiver of Landlord's rights hereunder or change the status of the rent
reduction as being confidential.
The parties acknowledge and agree that Landlord would be irreparably damaged and
cannot be made whole by monetary damages in the event of any breach by the other of
any provision of this Agreement. Accordingly, in the event of any such breach, Landlord
shall be entitled, without the requirement of posting a bond or other security, to injunctive
relief, specific performance or any other appropriate equitable remedy, in addition to any
other remedies to which the non-breaching party may be entitled at law. In the event of any
litigation arising out of this Agreement, the prevailing party shall be entitled to reasonable
attorney's fees and expenses from the losing party, whether incurred before or at trial, on
appeal or in insolvency proceedings.
7. CONFESSION OF JUDGMENT AGAINST TENANT.
A. 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. INCONSIDERATION OF THE WILLINGNESS OF THE LANDLORD TO RENT THE
LEASED PREMISES TO TENANT, THE TENANT FURTHER KNOWINGLY, INTELLIGENTLY,
VOLUNTARILY AND UNCONDITIONALLY ACKNOWLEDGES THAT LANDLORD MAY,
UNDER THE CIRCUMSTANCES SET FORTH BELOW, OBTAIN A JUDGMENT AGAINST
TENANT FOR MONEY DAMAGES AND/OR 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. TENANT
ACKNOWLEDGES THAT TENANT HAS HAD AN OPPORTUNITY TO CONSULT WITH
LEGAL COUNSEL OF THE TENANT'S OWN CHOOSING REGARDING THE TERMS OF THE
LEASE AND CONFESSION OF JUDGMENT PROVISION.
B. POSSESSION: TENANT COVENANTS AND AGREES THAT IF THERE IS AN EVENT
OF DEFAULT, 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
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HE BE,
FOR THE RECOVERY OF POSSESSION OF THE LEASED PREMISES AS HEREINABOVE
PROVIDED.
C. MONEY DAMAGES: TENANT COVENANTS AND AGREES THAT IF THERE IS AN
EVENT OF DEFAULT, THEN LANDLORD MAY, WITHOUT LIMITATION, CAUSE JUDGMENT
FOR MONEY TO BE ENTERED AGAINST TENANT AND, FOR THOSE PURPOSES, TENANT
HEREBY GRANTS THE FOLLOWING WARRANT OF ATTORNEY. TENANT HEREBY
IRREVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY, CLERK OF
COURT, ATTORNEY OF ANY COURT OF RECORD AND/OR LANDLORD (AS WELL AS
SOMEONE ACTING FOR LANDLORD) IN ANY AND ALL ACTIONS COMMENCED AGAINST
TENANT FOR RECOVERY OF RENT AND/OR OTHER CHARGES, PAYMENTS, COST AND
EXPENSES IN THIS LEASE AGREED TO BE PAID BY TENANT OR TO LANDLORD TO
APPEAR FOR TENANT AND ASSESS DAMAGES AND CONFESS OR OTHERWISE ENTER
JUDGMENT AGAINST TENANT, FOR ALL OR ANY PART OF THE RENT AND/OR OTHER
CHARGES, PAYMENTS, COSTS AND EXPENSES IN THIS LEASE AGREED TO BE PAID BY
TENANT OR TO LANDLORD, INCLUDING WITHOUT LIMITATION, AMOUNTS OF
ACCELERATED, TOGETHER WITH INTEREST AND COSTS AS WELL AS AN ATTORNEYS'
COMMISSION OF FIVE PERCENT (5%) OF THE FULL AMOUNT OF SUCH RENT,
CHARGES, PAYMENTS, COSTS, EXPENSES AND AMOUNTS (BUT NOT LESS THAN
$2,000.00), AND THEREUPON WRITS OF EXECUTION AS WELL AS ATTACHMENT MAY
FORTHWITH ISSUE AND BE SERVED, WITHOUT ANY PRIOR NOTICE, WRIT OR
PROCEEDING WHATSOEVER. THE WARRANT OF ATTORNEY HEREIN GRANTED SHALL
NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF BUT SUCCESSIVE
ACTIONS MAY BE COMMENCED AND SUCCESSIVE JUDGMENTS MAY BE CONFESSED
OR OTHERWISE ENTERED AGAINST TENANT FROM TIME TO TIME AS OFTEN AS ANY
OF THE RENT, INCLUDING, WITHOUT LIMITATION, ACCELERATED RENT, CHARGES,
PAYMENTS, COSTS, EXPENSES AND AMOUNTS SHALL FALL DUE, OR BE OR BECOME
DUE, OR BE IN ARREARS, AND THIS WARRANT OF ATTORNEY MAY BE EXERCISED
DURING AS WELL AS AFTER THE TERMINATION OR EXPIRATION OF THE TERM AND/OR
DURING OR AFTER THE RENEWAL OPTION TERM AND ANY OTHER EXTENSIONS OF
THE TERM OR RENEWALS TO THE LEASE.
D. IN ANY ACTION FOR MONEY DAMAGES AND/OR EJECTMENT AS DESCRIBED IN
SECTIONS B AND C ABOVE, 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. THE RIGHT TO ENTER JUDGMENT OR
JUDGMENTS BY CONFESSION AND TO ENFORCE ALL OF THE OTHER PROVISIONS OF
THIS LEASE MAY BE EXERCISED BY ANY ASSIGNEE OF LANDLORD'S RIGHT, TITLE AND
INTEREST IN THE LEASE AND IN SUCH ASSIGNEE'S OWN NAME. NO TERMINATION OF
THIS LEASE NOR TAKING NOR RECOVERING POSSESSION OF THE LEASED PREMISES
SHALL DEPRIVE LANDLORD OF ANY RIGHTS, REMEDIES OR ACTIONS AGAINST
TENANT, NOR SHALL THE COMMENCEMENT OR MAINTENANCE OF ANY SUCH ACTION
AT LAW OR IN EQUITY BE DEEMED TO BE A WAIVER OF THE RIGHT OF LANDLORD TO
RECOVER POSSESSION OF THE LEASED PREMISES. 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.
8. Tenant hereby acknowledges that the Lease as modified is in full force and effect and there
are no violations or defaults under any of the provisions of the Lease on the part of Tenant.
9. In the event of conflict between the terms and conditions of this First Modification to Lease
Agreement and the Lease, this First Modification to Lease Agreement shall control.
3
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10. This First Modification to Lease Agreement shall be effective only when it is signed by both
Landlord and Tenant. Tenant's submission of a signed First Modification to Lease
Agreement for review by the Landlord does not give Tenant any interest, right or option.
IN WITNESS WHEREOF, the parties have executed these presents as of the day and
year first above written.
LANDLORD:
Silver Spring Square II, L.P.,
a Delaware limited partnership
By: RRG Pennsylvania GP, Inc.,
a Florida Corporation, its general partner
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Print Name:
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Witness
By:
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Witness
TENANT:
THREE BARISTAS, LLC
a Pennsylvania limited liability company
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EXHIBIT
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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.
THREE BARISTA'S, LLC
tla Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
AVERMENT OF DEFAULT
COMMONWEALTH OF PENNSYLVANIA
: SS
COUNTY OF DELAWARE
William Madway, being duly sworn according to law, deposes and says that
Defendants entered into the Lease on or about July 9, 2007, true and correct copy of
which is attached to the Complaint in Confession of Judgment and marked Exhibit "A"
and entered into the Modification on or about February 27, 2009, true and correct copy
of which is attached to the Complaint in Confession of Judgment and marked Exhibit
Deponent also avers that Defendant is, and has been, in default of the Lease and
Modification for having failed to make payments as set forth in the Complaint. Further,
Defendant has failed to cure said defaults and theXbtal amount due is $124,,.996.31.
BY:
Y
Sworn to and Subscribed
before me this 30 day
ofd teM, ber , 2009.
,H CW PIPWAMVAW
NOTARIAL SEA.
MARGARET A. EVERS Pugbimc
CoaMNM1M c, 20f3
?u:'? ??? ,.c?rT ? Sao.'
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.
THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
CERTIFICATION OF ADDRESSES
I hereby certify that the correct address of the debtors and creditor in the
above are as follows:
Plaintiff: SILVER SPRING SQUARE II, L.P., One Independent Drive, Suite 114,
Jacksonville, FL 32202-5019.
Defendant: THREE BARISTA'S, LLC t/a Cuppy's Coffee, 15 Conifer Lane,
Mechanicsburg, PA 17050
P ET IK11N, WEL N, DAMICO, _Nr BROW PE OSA
BY.
DENIS M. DUNN, ESQUIRE
Attorney for Plaintiff
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.
THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
NOTICE OF ENTRY OF JUDGMENT
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby
notified that a JUDGMENT has been entered against you in the above proceeding and
that enclosed herewith is a copy of all the (record) documents filed in support of the said
judgment.
IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE CALL
ATTORNEY Denis M. Dunn, Esquire at this telephone number 610-565-2670.
Dated: Jolalnq
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.
THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
Defendant
Notice Under Rule 2958.1 of Judgment
and Execution thereon
Notice Of Defendants' Rights
TO: THREE BARISTA'S, LLC
t/a Cuppy's Coffee
15 Conifer Lane
Mechanicsburg, PA 17050
A judgment in the amount of $124,996.31 has been entered against you and in
favor of the plaintiff without any prior notice or hearing based on a confession of
judgment contained in a written agreement or other paper allegedly signed by you. The
sheriff may take your money or other property to pay the judgment at any time after
thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or
property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM
THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS
AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU
MAYLOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
LAWYER REFERENCE AND INFORMATION SERVICE
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
1-800-990-9108
(717) 249-3166
PETRIKIN, WELLMAN, DAMICO,
BY:
DENIS M. DUNN, ESQUIRE
Attomey I.D. #34583
The William Penn Building
109 Chesley Drive
Media, PA 19063
(610) 565-2670
Attomey for Plaintiff
QS
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TAPY
2009 OC T 13 Pry 2: 24
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CV* H3 L'-/
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Sheriffs Office of Cumberland County
R Thomas Kline RL.ED-0'+ FiC E
Sheri , fi r [ i ,r ?,T,
ff$??r i
Ronny R Anderson 2?Q?? ??
Chief Deputy
!Z`
Jody S Smith
WICE OF THE $mERIrF
Civil Process Sergeant ,
Edward L Schorpp
Solicitor
Silver Spring Square Il, LP Case Number
vs. 2009-6809
Three Baristas, LLC
SHERIFF'S RETURN OF SERVICE
10/15/2009 01:18 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on October
15, 2009 at 1318 hours, he served a true copy of the within Notice of Entry of Judgment, Notice Under
Rule 2958.1 of Judgment and Execution Thereon, Confession of Judgment for Money and Complaint for
Confession of Money Judgment, upon the within named defendant, to wit: Three Baristas, LLC t/a
Cuppy's Coffee, by making known unto Jason Winters, Owner at 15 Conifer Lane Mechanicsburg,
Cumberland County, Pennsylvania 17050 its contents and at the same time handing to him personally the
said true and correct copy of the same.
SHERIFF COST: $28.44 SO ANSWERS,
October 16, 2009 R THOMAS KLINE, SHERIFF
By
Depu •y heriff