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Home My WebLink About12-1219?GTeJu l i F cS ??EB P? 1 ? 4 I HAMPDEN CENTE 27 IN THE COURT OF COMMON PLEAS PlaintigUMBERLANIO COUNT-YCUMBERLAND COUNTY, PENNSYLVANIA PERNSMAM1A v. : NO. a ?a?nI ?-ll/, ZU WANG ZHANG, CIVIL ACTION - LAW Defendant CONFESSION OF JUDGMENT FOR MONEY CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for Defendant, Zu Wang Zhang, and confess judgment in favor of Plaintiff and against Zu Wang Zhang as follows: Amount Past Due $ 35,305.85 Amount of Guarantee $ 236,000.00 Attorneys Fees $ 5,000.00 Less Security Deposit L$ 6,900.00) TOTAL $ 269,405.85 LAW OFFICES STEPHEN C. NUDEL, PC Date f phen C.`Nudel, Esquire e_y ID #44 703 Joseph A. Ricci, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 171.01 (717) 236-5000 Attorneys for Plaintiff CIL 93ss 12 -7) 5 LAW OFFICES STEPHEN C. NUDEL, PC Stephen C. Nudel, Esquire Attorney ID 441703 Joseph A. Ricci, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 HAMPDEN CENTER, INC. Plaintiff v. ZU WANG ZHANG, Defendant 4u PENNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW CONFESSION OF JUDGMENT FOR MONEY COMPLAINT FOR CONFESSION OF JUDGMENT AND NOW, comes Plaintiff, Hampden Center, Inc.. by and through its attorneys, the Law Offices Stephen C. Nudel, PC, and respectfully files this Complaint for Judgment by Confession as follows. Plaintiff, Hampden Center, Inc., is a Pennsylvania corporation, with a business address of 444 Park Avenue South, Suite 302, New York, New York 10016 ("Hampden Center") 2. Plaintiff is the owner of real property known as Hampden Centre Shopping Center located at 4830 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania ("Shopping Center") 3. Defendant, Zu Wang Zhang, is an adult individual with an address of 5020 Simpson Ferry Road, Mechanicsburg, PA 17050 ("Zhang"). 4. On or about March 26, 2010, Japanese Steakhouse at Hampden, Inc. as Tenant and Hampden Center, Inc. as Landlord executed an Agreement of Lease for 7,200 I square feet of commercial space known as Space C-1 located in the Shopping Center ("Premises"). The Agreement of Lease was modified on January 7, 2011 and again modified on June 30, 2011 (collectively "Modifications"). A copy of the Agreement of Lease and the Modifications (collectively "Lease") are attached hereto collectively and made part hereof as Exhibit "A". 5. Defendant Zhang personally guaranteed the obligations of Tenant under the Lease. A copy of the Guaranty is attached to the Lease as Exhibit "G" which obligations were increased under the Modifications. 6. The initial term of the Lease was to expire naturally November 1, 2015, unless extended pursuant to the terms thereof. 7. The Lease provides, inter alia, for the payment of base rent ("Rent"), promotional fund contributions, a pro rata share of common area, maintenance expenses, insurance and taxes (collectively "Additional Rent") and, in the event of a default, interest, costs of suit and attorneys fees. 8. Tenant is in default under the terms and conditions of the Lease in that Tenant failed to pay Rent and Additional Rent when due and owing for the months of December, 2011, through the present. 9. As of February 1, 2012, Tenant owes $35,305.85 in Rent and Additional Rent. See Tenant ledger attached hereto as Exhibit "B". 10. Tenant is in default under Lease having ceased operations therein and as of this date owes $35,305.85 plus Rent and Additional Rent through the end of the term which sum exceeds $236,000.00. 2 11. Notice of default is not required by the terms of the Lease. However, Defendant was afforded notice as set forth by letter dated February 7, 2012. A true and correct copy of the letter dated February 7, 2012, is incorporated herein and attached hereto as Exhibit "C". 12. The Lease provides, inter alia, that in the event of a default by Tenant, Plaintiff may accelerate the Rent and Additional Rent through the end of the Lease Term. 13. The Lease provides, inter alia, that all amounts unpaid by the Tenant shall bear interest at the rate of eighteen percent (18%); but not in excess of the maximum legal rate. Plaintiff at this time is not attempting to collect interest to which it is entitled. 14. The Guaranty provides, inter alia, that, in the event of a default by Tenant, Plaintiff may confess judgment against the Guarantor, including attorney's fees in an amount equal to five percent (5%) of the amount due, which amount may be limited if Defendant remits payment within sixty (60) days of demand. Plaintiff at this time is not attempting to collect all attorney's fees to which it is entitled. 15. As Guarantor under the Lease, Defendant is liable for all amounts in arrears, an additional sum of $236,000.00, together with attorney fees. 16. Based upon the foregoing, Tenant is liable to Plaintiff as follows: Amount Past Due $ 35,305.85 Amount of Guarantee $ 236,000.00 Attorneys Fees $ 5,000.00 Less Security Deposit ?$ 6,900.00) TOTAL $ 269,405.85 17. No judgment has been entered on the Guaranty in any jurisdiction prior to this action. 18. Judgment is not being entered by confession against a natural person in connection with a residential lease. 19. Judgment in this matter is not being entered against a natural person in connection with a consumer credit transaction. 20. WHEREFORE, Plaintiff demands judgment in the amount of $269,405.85 in accordance with the terms of the Guaranty as authorized by the Warrant appearing in the attached Guaranty plus interest, costs of suit and attorneys fees. Respectfully submitted, Date: "?112- LAW OFFICES STEPHEN C. NUDEL, PC Stephen C. N del, Esquire A ie 11D'#4 703 Joseph A. Ricci, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff 4 EXHIBIT A AGREEMENT OF LEASE LANDLORD: HAMPDEN CENTER, INC. TENANT: JAPANESE STEAKHOUSE AT HAMPDEN, INC. Ver.03.22.07 Prep./Rev: 3/26/10 REFERENCE PAGES prepared/dated March 26, 2010 HAMPDEN CENTRE LANDLORD: HAMPDEN CENTER, INC. LANDLORD'S ADDRESS: 444 Park Avenue South Suite 302 New York, NY 10016 TENANT: JAPANESE STEAKHOUSE AT HAMPDEN, INC. TENANT'S ADDRESS: TENANT'S TRADE NAME: PREMISES: 7,200 Square feet (see Exhibit 11211 for outline of Premises) aka Space C-:L USE: Subject to existing leases and rights of existing tenants, Tenant may operate a Japanese steakhouse featuring table top cooking and sushi with alcoholic beverages and may sell other Asian (including Chinese) prepared food in accordance with law. EXCLUSIVE USE: Subject to existing leases and rights of existing tenants as long as Tenant: remains open and operating a Japanese steakhouse featuring table top cooking and is not in default hereunder, Landlord shall not lease any other space to a restaurant that features Japanese food featuring table top cooking. LEASE COMMENCEMENT DATE: May 1, 2010 POSSESSION DATE: Upon payment of the Security Deposit, proof of insurance and confirmation that utilities are in Tenant's name. RENT COMMENCEMENT DATE: November 1, 2010. TERMINATION DATE: Five (5) years form Rent Commencement Date. TERM OF LEASE: 5 years, beginning on the Rent Commencement Date and ending on the Termination Date (unless sooner terminated pursuant to this Lease). ANNUAL FIXED RENT: Lease Year 1.....$ 82,800.00 Lease Year 2.....$ 82,800.00 Lease Year 3.....$ 82,800.00 Lease Year 4.....$ 82,800.00 Lease Year 5.....$ 82,800.00 MONTHLY INSTALLMENTS OF FIXED RENT: Lease Year 1.....$ 6,900.00 Lease Year 2.....$ 6,900.00 i Lease Year 3.....$ 6,900.00 Lease Year 4.....$ 6,900.00 Lease Year 5.....$ 6,900.00 PERCENTAGE RENT: None. ANNUAL PROMOTIONAL FUND COST: $10.00 per year throughout the term. TENANT'S PROPORTIONATE SHARE: 3.16% (Premises/228,192 SF). Notwithstanding any other provision herein, Tenant's Proportionate Share shall not be less than 3.00%. SECURITY DEPOSIT: $ 6,900.00 GUARANTOR: ZU WANG ZHANG REAL ESTATE BROKER DUE COMMISSION: Commercial Realty Group, Inc. RENEWAL OPTIONS: Provided that Tenant. has not defaulted under the terms hereof, Tenant is granted two 5-year options to renew this Lease. ANNUAL OPTION RENT: Lease Year 6.....$ 95,220.00 Lease Year 7.....$ 95,220.00 Lease Year 8.....$ 95,220.00 Lease Year 9.....$ 95,220.00 Lease Year 10....$ 95,220.00 Lease Year 11....$109,503.00 Lease Year 12....$109,503.00 Lease Year 13....$109,503.00 Lease Year 14....$109,503.00 Lease Year 15....$109,503.00 MONTHLY INSTALLMENTS OF OPTION RENT: Lease Year 6.....$ 7,935.00 Lease Year 7.....$ 7,935.00 Lease Year 8.....$ '',935.00 Lease Year 9.....$ 7,935.00 Lease Year 10....$ 7,935.00 Lease Year 11....$ 9,125.25 Lease Year 12....$ 9,125.25 Lease Year 13....$ 9,125.25 Lease Year 14....$ 9,125.25 Lease Year 15....$ 5,125.25 ASSIGNMENT: Notwithstanding any contrary provision including but not limited to any contrary provision set forth in section 17, after obtaining Landlord's prior written consent, which consent shall not unreasonably withheld, Tenant may assign this Lease and Guarantor shall remain liable under the Guaranty. Landlord may withhold consent if the potential assignee's and the potential guarantor's financial condition are less than the financial condition of Tenant and Guarantor as determined by Landlord. FURNITURE, FIXTURES AND EQUIPMENT: Landlord authorizes Tenant to use all ii furniture, fixtures, and equipment ("FFE") in the Premises during the term hereof. During the Lease Tenant shall be responsible for the maintenance, repair and replacement of the FF&E and return it (including replacement thereof) to Landlord at the termination of the Lease in the same condition as is existing on the date hereof excepting normal wear and tear. Tenant shall not remove from the Premises any fixtures or equipment ("New FFE") Tenant acquires during the term of the Lease and all New FFE shall be deemed the property of Landlord's at the conclusion of the term. Tenant may remove furniture and decor that is not attached to the Premises In addition, provided that Tenant is not in default hereunder, Tenant shall receive a credit of $2000.00 against rent due for May 1, 2011. LANDLORD IMPROVEMENTS: Landlord delivers the Premises in "AS IS" condition. TENANT'S IMPROVEMENTS: Tenant shall proceed diligently and complete the following: Perform all action necessary to open for business in accordance with the Use provisions at the Premises utilizing the entire Premises by November 1, 2010. The information contained within the Reference Pages is incorporated into and made a part of that certain Lease (the "Lease") made and entered into by and between HAMPDEN CENTER, INC., as Landlord, and JAPANESE STEAKHOUSE AT HAMPDEN, INC., as Tenant. In the event of any conflict between any information contained within the Reference Pages and the Lease, these Reference Pages shall control. The Lease includes Exhibits "A" through "H", all of which are made a part hereof. Unless otherwise provided herein, all capitalized terms contained in these Reference Pages shall have the meaning ascribed to them in the Lease. LANDLORD: HAMPDEN CENTER, I C. By: Title: Vi e Pr sident Dated: 2010 TENANT: JAPANESE STEAKHOUSE AT HAMPDEN, INC. By. Dated: T(?' , 2010 iii LEASE THIS LEASE made and entered into between HAMPDEN CENTER, INC., as Landlord, and JAPANESE STEAKHOUSE AT HAMPDEN, INC., as Tenant, evidences the following understandings and agreements. The Reference Pages attached hereto, including all terms defined thereon, are incorporated as part of this Lease. WITNESSETH, that for good and valuable consideration, each to the other in hand paid, the receipt whereof is hereby acknowledged, the parties agree as follows: PREMISES Section l.(a) Landlord leases to Tenant and Tenant rents from Landlord the Premises having the frontage and depth indicated on the Reference Pages (all dimensions herein are measured from center of the wall to center of the wall for all party walls and from the outside face of all exterior walls and store fronts), located in the building (the "Building") commonly known as HAMPDEN CENTRE ("Shopping Center"). The Shopping Center is more particularly described by metes and bounds on Exhibit "A" attached hereto and made a part hereof by reference. Notwithstanding any other provision herein, by Tenant executing this Lease, Tenant confirms that the square footage of the Premises is as outlined on the Reference Pages and Tenant's square footage shall be deemed to be not less than the amount set forth on the Reference Pages. (b) The Premises are outlined in red on Exhibit "B" attached hereto and made a part hereof by reference. "Tenant's Proportionate Share" as used in this Lease shall mean a fraction, the numerator of which is the gross leasable area of the Premises and the denominator of which is the gross leasable area of the Shopping Center. Premises are cross-hatched or. Exhibit "B" attached hereto. Landlord's calculation of Tenant's Proportionate Share is as indicated on the Reference Pages. Gross leasable area of the Shopping Center means all ground floor area contained in the Shopping Center designated for tenants' exclusive occupancy. (c) Landlord expressly reserves (i) the use of the exterior, rear and side walls and roof of the Premises and the exclusive use of any space between the ceiling of the Premises and the floor above or the roof of the Building, (ii) the right to install, maintain, use, repair, and replace the pipes, ducts, conduits, and wires leading into or running through the Premises (in locations which will not materially interfere with Tenant's use thereof), (iii) the right in its sole and absolute discretion to expand, enlarge, make alterations or additions to, and to build additional stories on, the Shopping Center and to build other buildings or improvements on the Common Areas (as hereinafter defined), and (iv) the right, upon sixty (60) days prior written notice to Tenant, to transfer and remove Tenant from the Premises to other available tenant space of substantially similar size and equivalent rent in the Shopping Center (Landlord shall bear the expense of said transfer or removal as well as the expense cf any renovations or alterations necessary to make the new space conform substantially in arrangement and layout with the Premises covered by this pease). The within reservations in fairor of Landlord are in addition to the rights granted to Landlord tinder Section 23 hereof. -- TERM Section 2.(a) The Lease Term shall be as indicated on the Reference Pages. (b) If Landlord is required to perform work pursuant to Section 8 hereof, when the actual commencement Date is established, the parties will promptly enter into a Supplement to Lease, prepared by Landlord, stipulating the Commencement Dare and the Expiration Date of the Term. (c) The term "Lease Year" as used herein shall mean the twelve (12) calendar months from Rent Commencement Date and each twelve (12) month period thereafter. (d) Landlord hereby grants to Tenant the right and option to extend the Term of this Lease for the option periods indicated in the Renewal Option section of the Reference Pages (each a "Renewal Term"). Tenant shall notify Landlord in writing of its election to extend this Lease for each Renewal Term not less than six (6) months nor more than twelve (12) months prior to the expiration date of the then existing term. Each Renewal. Term shall be upon all of the terms, covenants, and conditions of this Lease except that the Annual Fixed Rent and Percentage Rent payable during such Renewal Term shall be as set forth in Sections 3(d) and 4(a) hereof, respectively. Tenant shall have no right to extend or renew this Lease if it is in default hereunder at the time of giving its notice of renewal, nor shall any renewal notice be effective if Tenant is in default hereunder as of the first day of the extended term which was the subject of such notice. FIXED RENT Section 3.(a) Tenant agrees, without notice or demand and without any deduction or setoff, to pay to Landlord, at Landlord's Address shown on the Reference Pages, or at such other place as Landlord may designate, as a fixed minimum rent for the Premises per Lease Year, the Annual Fixed Rent indicated on the Reference Pages for such Lease Year in fixed equal monthly installments during each Lease Year equal to the Monthly Installments of Fixed Rent indicated on the Reference Pages for such Lease Year, each Monthly Installment of Fixed Rent to be payable in advance on the first day of each month during the Term. Tenant agrees to pay to Landlord, if assessed by the jurisdiction in which the Shopping Center is located, any sales or excise tax imposed, assessed or levied in connection with Tenant's payment of the Annual Fixed Rent. (b) Upon execution of this Lease, Tenant shall deposit with Landlord (i) the Security Deposit as indicated on the Reference Pages to be held by Landlord during the Term pursuant to the provisions of Section 39 hereof; and (ii) the first Monthly Installment of Fixed Rent, and one month's worth of Additional Rent (as hereinafter defined). The funds so deposited pursuant to Item (ii) of this Subparagraph (b) shall be applied to the Monthly Installment of Fixed Rent and the Additional Rent due for the first full month of the Term. (c) Tenant's obligation to pay rent (as defined in Subparagraph 6(c)) shall begin on the date set forth on the Reference Pages. Rent due for any period which is less than a calendar month, whether prior to the Rent Commencement Date or after the expiration date, shall be prorated on a daily basis and shall be computed on the basis of Tenant's mont=hly rental payments (utilizing a thirty (30) day month for purposes of such computation). Tenant shall pay to Landlord the rent for each such day (i) concurrently with the first Monthly Installment of Fixed Rent due hereunder; (ii) upon vacating the Premises as herein provided; or (iii) upon demand from Landlord, as the case may be. (d) In the event Tenant exercises its right to extend the Term for a Renewal Term, the Annual Fixed Rent payable during the Renewal Term shall be equal to the amount indicated in the Renewal Option section of the Reference Pages for such Renewal Term in fixed equal monthly installments equal to the Monthly Installment of Fixed Rent indicated in the Renewal Option section of the Reference Pages for such Renewal Term each to be payable in advance on the first day of each month during such Renewal Term. (e) Tenant recognizes that late payment of any rent or other sum due hereunder will result in administrative expense to Landlord, the extent of which additional expense is extremely difficult and economically impractical to ascertain. Tenant therefore agrees that if rent or any other sum is due and unpaid fifteen (15) days after said amount is due, such amount shall be increased by a late charge in an amount equal to the greater of: (a) Fifty Dollars ($50.00) or (b) a sum equal to five percent (5%) of the unpaid amount. The amount of the late charge shall be reassessed and added to Tenant's obligation for each successive monthly period until paid. The provisions of this Section shall not in any way affect Landlord's remedies pursuant to Section 20 of this Lease. PERCENTAGE RENT Section 4.(a)-(d) INTENTIONALLY DELETED (e) During the Term, Tenant shall not directly or indirectly engage in any similar or competing business within three (3j miles of the Shopping Center. This restriction shall not apply to Tenant's stores, if any, presently open and in operation within such area. As used in this Section 4, the word "Tenant" shall include: (i) if Tenant is a corporation, all of Tenant's officers, directors, employees, or shareholders, jointly and severally, and all entities in which Tenant or its officers, directors, employees, or shareholders, jointly and severally, shall have any interest; and (ii) if Tenant consists of one (1) or more partners, individuals, and/or unincorporated entities, each partner, the respective spouses and children of such partners and individuals, jointly and severally, and all corporations and/or other entities in which such partners, individuals, entities, or any member of such unincorporated entities, jointly and severally, shall have any interest. GROSS SALES DEFINED Section 5.(a) Upon request from Landlord Tenant shall provide information as to Tenant's Gross Sales and other financial information reasonably requested. (b)-(d) INTENTIONALLY DELETED (e) It is understood and agreed that Landlord shall in no event be construed or held to be a partner, co-venturer or associate of Tenant in the conduct of Tenant's business, nor shall Landlord be liable for any debts incurred by Tenant in the conduct of Tenant's business. It is understood and agreed that the relationship is and at all times shall remain that of Landlord and Tenant. ADDITIONAL RENT Section 6.(a) Tenant agrees to pay to Landlord, as additional rent ("Additional Rent") for the Premises, throughout the Term, the following amounts: (i) Tenant's Proportionate Share of the cost: of operating and maintaining the Common Areas, which areas are defined in Section 7, (the "Common Area Cost"), including, without limitation, the cost of the following: lighting, utilities, cleaning, snow and trash removal, line painting, security (if provided), management fees not to exceed 5% of all rent and additional rent charged for the Shopping Center, maintenance, materials, labor costs, equipment, (including, without limitation, the cost of service agreements on equipment), tools, general repairs, employee benefits and payroll taxes, accounting fees, legal fees, permits, license and inspection fees, sales, use and service taxes, and the repair or replacement of paving, curbs, stations, first aid stations, comfort stations, stairways, truck ways, loading docks, package pick-up stations, sidewalks, ramps, the parking lot, driveways, any garage, landscaping, drainage facilities, and lighting facilities, including traffic lights, as may be necessary from time to time, and anv other cost of operation of the improvements on the Common Areas. The Common Area Costs shall include depreciation of equipment acquired for use in Common Area maintenance, but shal_ not include the original cost thereof. (ii) Tenant's Proportionate Share of any real estate and ad valorem taxes and assessments (1) which shall or may become a :lien upon, or be assessed, imposed, or levied by lawful taxing authorities against the land upon which the Shopping Center is located, the Building, and other improvements on the Shopping Center for the tax years (the years for which a lien is imposed) falling wholly or partially within the Term of this Lease; (2) which arise in connection with the use, occupancy, or possession of the Shopping Center or any part thereof or any land, buildings, or other improvements thereon; (3) which become due and payable out of or for the Shopping Center, any part thereof, or any land, buildings, or other improvements thereon; or (4) which are imposed, assessed, or levied in lieu of, in substitution for, or in addition to any or all of the foregoing (collectively the "Tax Cost"). The Tax Cost shall include any fees, expenses or costs (including attorneys' fees, expert fees and appraisal fees) incurred by Landlord in protesting any assessments, levies or the tax rate, but shall not include any charge (such as a water meter charge) which is measured by actual user consumption. A real estate tax bill or copy thereof submitted by Landlord to Tenant shall be conclusive evidence of the amount of any real estate taxes, assessments, or installment thereof. In addition, Tenant shall pay all taxes levied against personal property, fixtures and Tenant's improvements in the Premises. If such taxes for which Tenant is liable are levied against Landlord or Landlord's property and if Landlord elects to pay the same or if the assessed value of Landlord's property is increased by inclusion of any such items and Landlord elects to pay the taxes based on such increase, Tenant shall pay to Landlord upon demand that part of such taxes for which Tenant is liable hereunder. (iii) Tenant's Proportionate share of all premiums for public liability, fire and extended coverage or all risk, business interruption, and/or rent loss, and/or any other insurance policy which may reasonably be carried by Landlord insuring the Premises, the Building, the 2ommon Areas, the Shopping Center, or any improvements therein (the "Insurance Cost"). (iv) A proportionate share of all utilities services not measured by a separate meter for the Premises and provided to Tenant and other tenants of the Shopping Center (the "Utility Cost"). Tenant's share of the Utility Cost shall be determined on the basis of the total square feet of floor area of the Premises as a percentage of the total square feet of floor area leased by all tenants provided such services. Tenant shall pay is share of such cost, together with an amount equal to fifteen percent (15%) thereof as payment of administrative costs of Landlord, within ten (10) days after demand therefor. Landlord shall not bill Tenant for such cost more often than monthly. In the event Landlord determines that it is not Ecppropriate to base the utility bills on Tenant's Proportionate Share due to the nature of Tenant's business activities, Landlord may use its discretion in allocating such bills. (v) Tenant shall pay to Landlord prior to the Commencement Date the Annual Promotional Fund Cost indicated on the Reference Pages, as Tenant's initial annual payment for Tenant's share of the costs ("Promotional Fund Costs") of a promotional fund ("Promotional Fund") to be used to pay all costs and expenses incurred in connection with the formulation and execution of publicity programs for the promotion of the Shopping Center. Such programs, which, at Landlord's option, shall be determined by an advertising agency or firm or volunteer committee of tenants, may include, without limitation, special events, shows, displays, advertisements, seasonal events, and promotional literature; provided, however, that Landlord or an outside advertising agency approved by Landlord shall have the right to review and approve such publicity programs, the items on the Promotional Fund budget for each year, and any amendments to said budget. A portion of the Promotional Fund may be applied to pay costs of administering the Promotional Fund. Tenant's initial payment to the Promotional Fund shall be increased in such Lease Years, if any, that the Annual Fixed Rent is increased pursuant to Section 3 hereof by the percentage increase in the Annual Fixed Rent. Tenant: agrees to advertise in any and all special Promotional Fund newspaper sections, tabloids or other advertisements, (including audio and/or visual media) and agrees to cooperate and participate fully in all special sales and promotions sponsored by the Promotional Fund. (b) Tenant's Proportionate Share of the Common Area Cost, the Tax Cost, and the Insurance Cost shall be estimated by Landlord no later than thirty (30) days prior to the first day of each Lease Year. Landlord shall notify Tenant of such estimates which shall be paid, together with an amount equal to fifteen percent (15%) thereof as payment of administrative costs of Landlord, by Tenant in advance, on the first day of each and every calendar month throughout such Lease Year. At the end of the Lease Year, when Landlord has calculated the exact amount of Tenant's Proportionate Share of such costs, Landlord shall notify Tenant of such exact amount. Any deficiencies in the payments theretofore (including said administrative costs) made by Tenant shall be paid by Tenant to Landlord within ten (10) days of receipt of said notice. Any surplus paid by Tenant during the preceding Lease Year shall be applied against the next due monthly installments of such costs due from Tenant. During any part of the 'Term which shall be less than a full calendar year, any and all such costs shall be prorated on a daily basis so that Tenant shall only pay Tenant's Proportionate Share of such costs attributable to the portion of the calendar year occurring within the Term. (c) The tern "rent" as herein used shall include Annual Fixed Rent, Percentage Rent and Additional Rent. c,nmmnm aRF.aC Section 7. Subject to the Rules and Regulations specified in Section 11 hereof and Landlord's rights under Section 1(c) hereof, Landlord hereby grants to Tenant and Tenant's employees, agents, customers, and invitees the nonexclusive right, during the Term, to use, subject to the rights of governmental authorities, easements, public highways and other restrictions of record, in common with others granted the use thereof, the Common Areas located within the Shopping Center. The term "Common Areas" as used in this Lease shall mean the entire Shopping Center less the gross leasable area of the Shopping Center and shall include, without limitation, the parking areas, roadways, pedestrian sidewalks, loading docks, delivery areas, landscaped areas, and all other areas or improvements which may be provided by Landlord for the general use of tenants of the Building and the Shopping Center and their agents, employees, and customers. Landlord shall be responsible for the operation, management, and maintenance of the Common Areas. The manner in which the Common Areas shall be maintained and the expenditures therefor shall be at the reasonable discretion of Landlord. Landlord may temporarily close parts of the Common Areas for such periods of time as may be necessary for (i) temporary use as a work area in connection with the construction of buildings or other improvements within the Shopping Center or contiguous property; (ii) repairs or alterations in or to the Common Areas or to any utility-type facilities; (iii) preventing the public from obtaining prescriptive rights in or to the Common Areas; (iv) emergency or added safety reasons; or (v) doing and performing such other acts as in the use of good business judgment Landlord shall determine to be appropriate for the Shopping Center; provided, however, that Landlord shall use reasonable efforts not to unduly interfere with or disrupt Tenant's business. CONSTRUCTION OF PREMISES Section 8.(a) Prior to the Commencement Date, Landlord shall complete the improvements to the Premises described in Exhibit "C" attached hereto and made a part hereof by reference. Tenant hereby approves Exhibit "C" and all of the improvements, plans and specifications described therein. It is understood and agreed by Tenant that changes in such improvements, plans and specifications which will not materially interfere with Tenant's use of the Premises and which may be necessary during construction of the Premises shall not affect, invalidate, or change this Lease or any of its terms and provisions. (b) Landlord's work in accordance with Exhibit "C" shall be deemed approved by Tenant in all respects thirty (30) days after the Commencement Date, unless prior thereto Landlord receives written notice from Tenant of any defect in such work. Any disagreement which may arise between Landlord and Tenant concerning the work to be performed by Landlord shall be resolved by the decisions of Landlord's architect. (c) Tenant shall complete the improvements to the Premises described in Exhibit "D" attached hereto and made a part hereof by reference. Landlord and Tenant hereby approve Exhibit "D" and all of the improvements, plans and specifications described therein, provided that Tenant's work described in Exhibit "D" shall be performed in accordance with the provisions of Section 12(a)(i) hereof; and provided further that any change in the improvements, plans and specifications described in Exhibit "D" shall be approved by Landlord in writing in accordance with the provisions of Section 12(a)(ii) hereof. USE Section 9.(a) The Premises shall be occupied and used only for the Use described on the Reference Pages and for no other use, unless Tenant has obtained Landlord's prior written consent, which consent may be withheld in Landlord's sole discretion for any reason or no reason whatsoever. Tenant shall commence business in the Premises on or before sixty (60) days after the Commencement Date, shall operate continuously one hundred percent (100°%) of the Premises during the entire Term, and shall keep the Premises fully stocked with merchandise and staffed with personnel so as to maximize Gross Sales at the Premises at all times. Tenant shall conduct its business in the Premises on all business days during all hours as from time to time may be reasonably determined by Landlord to be consistent with the hours of operation of the Shopping Center., but in no event less than eight (8) hours in a business day and seven (7) days per week. Tenant may close the Premises during reasonable periods for repairing, cleaning or decorating the Premises, with the prior written consent of Landlord. Without limiting any other right hereunder by Landlord, in the event Tenant violates this Section, then the Minimum Annual Rent prorated on a daily basis shall be increased by the greater of $25.00 or twenty percent (20%) for any day in which a violation of phis Section occurs. (b) Tenant agrees to conduct its business in the Premises under Tenant's Trade Name as indicated on the Reference Pages. (c) Tenant shall use and occupy the Premises in accordance with all governmental laws, ordinances, rules, and regulations and shall keep the Premises in a clean, careful, safe, and proper manner. Tenant shall not use, or allow the Premises to be used, for any purpose other than as specified herein and shall not use or permit the Premises to be used for any unlawful, disreputable, or immoral purpose or in any way that will injure the reputation of the Shopping Center. Tenant shall not permit any activities in the Premises which may create or cause noise levels which are audible outside the Premises and disturbing to neighboring residences, other tenants or their customers or employees. Tenant shall not permit the Premises to be occupied in whole or in part by any other person or entity. Tenant shall not cause or permit the use or occupancy of the Premises to be or remain a nuisance or disturbance, as determined by Landlord in its sole discretion, to neighboring residences, other tenants, occupants, or users of the Shopping Center. UTILITIES Section 10.(a) (i) Landlord shall provide, up to the lease line of the Premises, the necessary mains and conduits to provide water, sewer, gas (if available by public utilities) and electric service to the Premises. Tenant shall duly and promptly pay to the supplier thereof all bills for utilities consumed in the Premises measured by a separate meter I-or the Premises. (ii) If Tenant shall use any utility service for any purpose in the Premises which is or can be measured by a separate meter for the Premises and Landlord shall elect to supply such service, Tenant shall accept and use the same as tendered by Landlord and pay Landlord therefor at the applicable rates charged by Landlord. In no event shall Tenant pay to Landlord for any such service more than would be chargeable to Tenant by the utility company providing such service. Payment for any and all water, gas, sewer, and. electricity service used by Tenant, if furnished by Landlord, shall be made monthly as Additional Rent within thirty (30) days of the presentation by Landlord to Tenant of bills therefor. (iii) Notwithstanding anything to the contrary provided in this Section 10 or in Subsection G(a)(iv), Tenant acknowledges that water service to the Shopping Center shall be supplied by Landlord, and Tenant agrees; to purchase same from Landlord and to pay the charges therefor when bills are rendered at the applicable rates. Such water service shall be measured by a master meter and Tenant's share of the charges for such service shall be allocated by Landlord, at Landlord's option, either (a) on the basis of the total square feet of floor area at the Premises as a percentage of the total square feet of floor area leased by all tenants in the Shopping Center provided such water service; or (b) based upon readings taken from a water sub-meter for the Premises, if Landlord elects to install such a sub-meter. All such charges shall be paid monthly to Landlord as Additional Rent within thirty (30) days of the presentation by Landlord to Tenant of bills therefor. (b) In the event Landlord supplies any sanitary sewer facilities to the Premises, Tenant shall pay as Additional Rent Tenant's Proportionate Share of the cost of operating and maintaining such facilities, including, without limitation, the rental cost and/or amortization of such facilities. (c) Landlord shall have the right to cut off and discontinue, without notice to Tenant, any utility or other service whenever and during any period for which bills for the same, rent, or other obligations hereunder are not promptly paid or performed by Tenant.. (d) The obligations of Tenant to pay for utility service as herein provided shall commence on the Commencement Date. Landlord shall not be liable in damages or otherwise should the furnishing of such services to the Premises be interrupted by fire, accident, riot, strike, act of God, the making of necessary repairs or improvements, or other causes beyond the control of Landlord. (e) Landlord shall not be liable in the event of any interruption in the supply of any utilities. Tenant agrees that it will not install any equipment which will exceed or overload the capacity of any utility facilities serving the Premises and that if any equipment installed by Tenant shall require additional utility facilities, installation of the same should be at Tenant's expense, but only after Landlord's written approval of same. RULES AND REGULATIONS Section 11. Tenant agrees that Landlord has the right, at any time and from time to time, for the general welfare of the Shopping Center and its occupants, to impose reasonable rules and regulations of general application governing the conduct of occupants of the Shopping Center and their use of the Common Areas. Tenant agrees to comply with any and all such rules and regulations imposed by Landlord, including, without limitation, those rules and regulations set forth in Exhibit "E". CHANGE OF IMPROVEMENTS BY TENANT Section 12.(a) (i) Upon prior written approval of Landlord, Tenant shall have the right during the Term to make such interior alterations, changes and improvements to the Premises (except structural alterations, changes, or improvements), as may be proper and necessary for the conduct of Tenant's business and for the full beneficial use of the Premises, provided Tenant shall (A) pay a1 costs and expenses thereof; (B) make such alterations, changes, and improvements in a good and workmanlike mariner, with new materials of first.-class quality, and in accordance with all applicable laws and building regulations; and (C) provide Landlord reasonable assurances, prior to commencing such alterations, changes, and improvements, that payment for the same will be made by Tenant. Tenant shall not make any structural alterations, changes or improvements to the Premises. (ii) In order to obtain Landlord's approval for such alterations, changes, and improvements, Tenant shall submit to Landlord plans and specifications describing the design, materials, style, and appearance of such alterations, changes, and improvements with reasonable particularity. Within thirty (30) days after receipt of such plans and specifications, Landlord shall notify Tenant of any objections of Landlord. Tenant shall cure the cause for such objection within thirty (30) days after receipt of such notice and shall resubmit such plans and specifications for Landlord's review and approval. Landlord may charge Tenant a reasonable charge to cover Landlord's overhead as it relates to such proposed work. Prior to construction, Tenant shall provide such financial assurances as Landlord shall require to assure payment of the costs thereof and to protect Landlord against any loss from any mechanic's, materialmen's, or other liens. Tenant shall not be permitted to enter upon the roof of any building without the prior consent of Landlord. (b) Except as otherwise provided below, all signs, equipment, furnishings, nonpermanent improvements, and trade fixtures within the Premises, installed in the Premises by Tenant, and paid for by Tenant, shall remain the property of Tenant and shall be removed by Tenant upon the termination of this Lease, provided that any of such as are affixed to the Premises and require severance shall be removed by Tenant and Tenant shall repair any damage caused by such removal. By written notice to Tenant prior to or after expiration or termination of the Term, Landlord shall have the right to require Tenant to leave in the Premises equipment, improvements, or fixtures attached to the Premises or the Building. Anything contained herein to the contrary notwithstanding, the HVAC Facilities, and related systems shall at all times remain the property of Landlord and shall not be removed by Tenant. REPAIRS AND MAINTENANCE Section 13.(a) Landlord shall maintain the foundation, the exterior structural walls, and the roof of the Building in good repair, except that Tenant shall reimburse Landlord for the cost of any repair occasioned by the act or negligence of Tenant, its agents, employees, invitees or licensees. Landlord shall not: be required to make any other improvements or repairs of any kwnd upon the Premises and appurtenances thereto, except as otherwise provided in this Lease. If the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of such written notice. Landlord's sole liability shall be limited to the cost of the repair. Landlord shall not be liable to Tenant for any interruption of Tenant's business or inconvenience caused Tenant or Tenant's assigns, sublessees, customers, invitees, employees, licensees or concessionaires in the Premises on,account of Landlord's performance of any repair, maintenance or replacement in the Premises, any other work therein or in the Shopping Center pursuant to Landlord's rights or obligations under this lease so long as such work is being conducted by Landlord in accordance with the terms of the Lease and without gross negligence or gross disregard for Tenant's business operations. Unless otherwise provided herein, there shall be no abatement of rent and no liability of Landlord by reason of any injury to or interference with Tenant's business arising from the making of any repairs, alterations or improvements in or to any portion of the Shopping Center or the Premises or in or to fixtures, appurtenances and equipment therein. (b) At the sole cost and expense of Tenant and throughout the Term, Tenant shall keep and maintain the Premises in good order, condition, and repair, in a clean, sanitary, and safe condition in accordance with the laws of the State in which the Premises are located, and in accordance with all directions, rules, and regulations of the health officer, fire marshal, building inspector, or any other proper officer of the governmental agencies having jurisdiction over the Premises. Without limiting the foregoing, Tenant shall be responsible for maintenance, repair, and, with Landlord's consent, replacement as needed of all electrical, plumbing, heating, ventilating, air conditioning, and utility systems located on the Premises, all plate glass and windows, window fittings and sashes, and interior and exterior doors, all fixtures within the Premises, all interior walls, floors and ceilings, water heaters, termite and pest extermination, all of Tenant's improvements and trade fixtures. Tenant shall keep and maintain the Premises in accordance with all requirements of law concerning the manner, usage, and condition of the Premises and appurtenances thereto, as the same shall be in effect from time to time. Tenant shall permit no waste, damage, or injury to the Premises. If at any time and from time to time during the Term, and any renewal thereof, Tenant shall fail to make any maintenance, repairs or replacements in and to the Premises as required in this Lease, Landlord shall have the right, but not the obligation, to enter the Premises and to make the same for and on behalf of Tenant, and all sums so expended by Landlord shall be deemed to be Additional Rent hereunder and payable to Landlord upon demand. Tenant shall keep in force throughout the Lease Term maintenance contracts for the heating, ventilating and air conditioning systems reasonably satisfactory to Landlord. WAIVER OF LIABILITY BY TENANT Section 14. Landlord and Landlord's agents and employees shall not be liable for, and Tenant unconditionally and absolutely waives any and all causes of action, rights, and claims against Landlord and its agents and employees arising from, any damage or injury to person or property, regardless of cause, sustained by Tenant or any person claiming through or under Tenant, resulting from any accident or occurrence in or upon the Premises or any other part of the Building or the Shopping Center, unless the same shall be due to the gross negligence of Landlord and/or Landlord's agents and employees. This provision shall survive the termination or expiration of this Lease. INDEMNIFICATION AND INSURANCE Section 15.(a) Tenant will defend, indemnify, and save Landlord harmless from and against any and all claims, actions, lawsuits, damages, liability, and expense (including, without limitation, attorneys' fees) arising from loss, damage, or injury to persons or property occurring in, on, or about the Premises, arising out of the Premises, or occasioned wholly or in part by any act or omission of Tenant, Tenant's agents, contractors, customers or employees. (b) At all times from the Commencement Date and during the Term or any Renewal Term, Tenant shall, at its expense, keep in full force and effect the following insurance policies insuring Tenant, Landlord, and Landlord's mortgagee: (i) public liability insurance in companies acceptable to Landlord with minimum limits of (a) One Million Dollars ($1,000,000.00) on account of bodily injuries to or death of one (1) person, and One Million Dollars ($1,000,000.00) on account of bodily injuries to or death of more than one (1) person as the result of any one (1) accident or disaster, and One Million Dollars ($1,000,000.CO) on account of damage to property; or (b) One Million Dollars ($1,000,000) Bodily Injury Liability and Property Damage Liability Combined Single Limit Coverage; and (ii) all-risk hazard insurance covering Tenant's improvements to the Premises and all equipment and contents within the Premises for the full replacement value and 10 business interruption insurance for a minimum of twelve (12) months. Prior to the Commencement Date and upon each renewal, Tenant shall deposit with Landlord the policies of such insurance, or certificates thereof, showing Landlord and its mortgagee as additional insureds, and shall update the same prior to expiration thereof. Tenant's insurance shall not be cancelable without. thirty (30) days prior written notice to Landlord. (c) Tenant shall not carry any stock of goods or do anything in or about the Premises which will in any way increase the insurance rates on the Premises, the Building and/or the Shopping Center. Any such increase shall be paid by Tenant to Landlord within thirty (30) days after written demand therefor. (d) All casualty coverage insurance carried by Landlord or Tenant shall provide for waiver of subrogation against Landlord, Tenant and other tenants in the Shopping Center on the part of the insurance carrier. Evidence of the existence of such waiver shall be furnished by either party to the other party on request. SIGNS Section 16. Prior to opening for business, Tenant shall install an identification sign for the Premises at its cost and expense, which sign shall comply with Exhibit "F". Tenant shall not erect or install any other signs except as expressly permitted by Landlord. All permitted signs shall comply with the terms and provisions of Exhibit "F" and all requirements of appropriate governmental authorities. All necessary permits or licenses shall be obtained by Tenant. Tenant shall maintain all permitted signs in good condition and repair at all times and shall save Landlord harmless from any injury to person or property arising from the erection and maintenance of said signs. Upon vacating the Premises, Tenant shall remove all signs and repair all damage caused by such removal. ASSIGNMENT AND SUBLETTING Section 17. Subject to the provisions set forth in the Reference pages, (a)Neither this Lease nor any or all interest herein shall be sold, mortgaged, pledged, encumbered, assigned, transferred, or otherwise disposed of in any manner by Tenant, voluntarily or involuntarily, by operation of law, or otherwise, nor shall the Premises or any part thereof be sublet, used, or occupied for the conduct of any business by any third person, firm, or corporation or for any purpose other than herein authorized, except with the prior written consent of Landlord, which consent Landlord may grant or withhold in its sole discretion. A sale or sales of fifty percent (500) or more of the capital stock of Tenant (if Tenant is a corporation) or of the interest in capital, profits, or losses of Tenant (if Tenant is a partnership) shall be deemed to be a prohibited assignment of this Lease within the meaning of this Section 17. In the event Tenant desires to sublet the Premises, or any portion thereof, or assign this lease, Tenant shall give written notice thereof to Landlord at least ninety (90) days but not more than one hundred eighty (180) days prior to the proposed commencement date of such subletting or assignment, which notice shall set forth the name of the proposed subtenant or assignee, the relevant terms of any sublease or assignment and copies of financial reports and other relevant financial information on the proposed subtenant or assignee. Notwithstandincj any permitted assignment or subletting, Tenant shall at all times remain directly and primarily liable for the payment of the rent herein specified and for compliance with all of its other obligations under this Lease. Upon the occurrence of a default under Section 20 of this Lease, whicr. is not cured within the applicable grace period, :if the Premises or any part thereof are then sublet, 11 Landlord, in addition to any other remedies provided herein or by law, may collect directly from such subtenant all rents due and becoming due to Tenant under such sublease and apply such rent against any sums due to Landlord from Tenant hereunder. No such collection directly from an assignee or subtenant shall be construed to constitute a novation or a release of Tenant from the further performance of Tenant's obligations hereunder nor shall it constitute consent of the sublease or assignment. Any guaranty of Tenant's performance executed as consideration for this Lease shall remain in full force and effect before and after any such assignment or subletting. Landlord may require Tenant, and Tenant hereby agrees, to execute a guaranty of this Lease before Landlord consents to any such assignment or sublease and to cause the guarantor of Tenant's Lease to execute an acknowledgment of the assignment or sublease. (b) In addition to Landlord's right to consent to any subtenant or assignee, Landlord shall have the option, in its sole discretion, in the event of any proposed subletting or assignment, to terminate this Lease, or in the case of a proposed subletting of less than the entire Premises, to recapture the portion of the Premises to be sublet, as of the date the subletting or assignment is to be effective. The option shall be exercised by Landlord's giving Tenant written notice thereof within thirty (30) days following Landlord's receipt of Tenant's written notice as required above. If this Lease shall be terminated with respect to the entire Premises, the Term shall end on the date stated in Tenant's notice as the effective date of the sublease or assignment as if that date had been originally fixed in this lease for the expiration of the Term. If Landlord recaptures only a portion of the Premises, the Annual Fixed Rent and Additional Rent during the unexpired Term shall abate, proportionately, based on the Annual Fixed Rent and Additional Rent due as of the date immediately prior to such recapture and Percentage Rent shall be calculated using the adjusted Annual Fixed Rent. Tenant shall, at Tenant's own cost and expense, discharge in full any outstanding commission obligation with respect to this Lease and any commissions which may be owing as a result of any proposed assignment or subletting, whether or not the Premises are rented by Landlord to the proposed tenant or any other tenant. (c) Consent by Landlord to any assignment or subletting shall not include consent on a subsequent assignment or subletting of the Premises by Tenant or its assignee or sublessee or the consent to the assignment or transferring of any Lease renewal option rights, space option rights or other special privileges granted to Tenant hereunder (and such options, rights or privileges shall terminate upon such assignment or sublet :ting), unless Landlord specifically grants in writing such options, rights or privileges to assignee or subtenant. Any sale assignment, mortgage, transfer of this Lease or subletting which does not comply with the provisions of this Section shall be void. (d) Notwithstanding Landlord's consent, in the event that Tenant sells, sublets, assigns, or transfers this Lease and at any time receives periodic rent and/or other- consideraticn which exceeds that which Tenant would at that time be obligated to pay to Landlord, Tenant. shall pay to Landlord x.00% of the gross increase in such rent as such rent is received by Tenant and 100% of any other consideration received by Tenant from such subtenant or such assignee. (e) Should Landlord consent to an assignment or sublease of this Lease, Tenant, its proposed assignee or subtenant and Landlord shall execute an agreement prepared by or acceptable to Landlord wherein the proposed assignee or subtenant agrees to be bound by the terms and conditions of this Lease, and Tenant will pay to Landlord on demand a sum equal to all of Landlord's 12 costs, including reasonable attorneys' fees, incurred in connection with such assignment, sublease or transfer. REPAIR AFTER CASUALTY Section 18.(a) (i) Tenant shall immediately give written notice to Landlord of any damages caused to the Premises by fire or other casualty. If the Premises shall be destroyed or so injured, due to any cause, as to be unfit, in whole or in part, for occupancy, and such destruction or injury could reasonably be repaired within nine (9) months from the receipt of insurance proceeds covering such destruction or injury, then Tenant shall not be entitled to surrender possession of the Premises, nor, except as hereinafter provided, shall Tenant's liability to pay rent under this Lease cease without the mutual consent of the parties hereto. In the case of any such destruction or injury, Landlord shall repair all structural portions of the Premises with all reasonable speed and shall complete such repairs within nine (9) months from the receipt of such insurance proceeds. Notwithstanding the foregoing, Landlord shall not be required to expend any amount in excess of the net insurance proceeds for such repairs. Unless such damage is the result of the negligence or willful misconduct of Tenant or its agents, employees or invitees, if during such period Tenant shall be deprived of the use of all or any portion of the Premises, a proportionate adjustment in the Annual Fixed Rent and Additional Rent shall be made corresponding to the time during which, and the portion of the Premises of which, Tenant shall be so deprived and Percentage Rent shall be calculated using the adjusted Annual Fixed Rent. Tenant shall, within sixty (60) days after completion of Landlord's work, complete all work to the Premises (without any allowance from Landlord) necessary to restore the Premises to their condition on the date Tenant opened for business to the public. (ii) If such destruction or injury to the Premises cannot reasonably be repaired within nine (9) months from the receipt of insurance proceeds covering such destruction or injury, or if the net insurance proceeds available for such repairs are not sufficient in Landlord's reasonable determination, Landlord shall notify Tenant within ninety (90) days after the occurrence of such destruction or injury whether or not Landlord will repair or rebuild. If Landlord elects not to repair or rebuild, this Lease shall be terminated. If Landlord shall elect to repair or rebuild, Landlord shall notify Tenant of the time within which such repairs or reconstruction will be completed, and Tenant: shall have the option, within thirty (30) days after the receipt of such notice, to elect by written notice to Landlord to either terminate this Lease and any further liability hereunder, or to extend the Term by a period of time equivalent to the time from the occurrence of such destruction or injury until the Premises are restored to their former condition. In the event Tenant elects to extend the Term, Landlord shall restore the structural portions of the Premises to their former condition within the time specified in said notice, Tenant shall complete the work required of Tenant pursuant to paragraph (i) above within sixty (60) days after completion of Landlord's work, and Tenant shall not be liable to pay the Annual Fixed Rent and Additional Rent for the period from the occurrence of such destruction or injury until the structural portions of the Premises are so restored by Landlord and Percentage Rent shall be calculated using the adjusted Annual Fixed Rent. (b) In addition to all rights to cancel or terminate 13 this Lease given to the parties in Section 18(a) hereof, (aa) if fifty percent (50%) or more of the gross leasable area of the Shopping Center is destroyed or damaged, regardless of whet=her or not the Premises shall be affected by such damage or destruction, Landlord shall have the right to cancel and terminate this Lease as of the date of such damage or destruction by giving not-ce thereof to Tenant within ninety (90) days after the date of such damage or destruction and (bb) if the Premises are destroyed or damaged during the last two (2) years of the 'Term to the extent of fifty percent (50%) or more of the total square feet of floor area of the Premises, then either Landlord or Tenant shall have the right to cancel and terminate this Lease as of the date of such damage or destruction by giving notice thereof within thirty (30) days after the date of said damage or destruction. However, if subsection (aa) above does not apply and Tenant shall, within thirty (30) days following receipt of Landlord's notice of cancellation pursuant to (bb) above, give Landlord notice of its intention to renew the Lease for any additional option periods then available to it under the terms of this Lease, then the notice of Landlord to terminate the Lease shall be of no force and effect and Section 18(a)(i) or 18(a)(ii) hereof, as the case may be, shall apply. If no additional option periods are then available to Tenant, this Lease shall terminate on the date recited in such notice from Landlord. (c) Notwithstanding anything to the contrary contained in Sections 18(a)(i), 18(a)(ii), and 18(b) hereof, Landlord may cancel this Lease with no further liability to Tenant whatsoever in the event that following any damage, destruction, or injury to the Premises or the Building, Landlord's mortgagee elects to require Landlord to make advance payments upon or for any indebtedness secured by a mortgage on the Shopping Center or any portion thereof. (d) In the event of any insurance claim against any of Landlord's insurance policies, Landlord shall have the right to recover from Tenant Tenant's Proportionate Share of the amount of any deductible or other loss not reimbursed tc Landlord by proceeds of insurance. CONDEMNATION Section 19.(a) In the event the entire Premises shall be taken by condemnation or right of eminent domain, this Lease shall terminate as of the day possession shall be taken by the taking authority and Landlord and Tenant shall be released from any further liability hereunder. In the event only a portion of the Premises shall be taken by condemnation or right of eminent domain and the portion so taken renders the balance unsuitable for the purpose of this Lease, either Landlord or Tenant shall be entitled to terminate this Lease, such termination to become effective as of the day possession of the Premises shall be taken, provided notice of such termination is given within thirty (30) days after the date of notice of such taking. If, in such case, this Lease is not terminated, Landlord agrees to restore the Premises with. reasonable speed to an architectural unit as nearly like its condition prior to such taking as shall be practicable. If during and/or after the work of restoration, Tenant shall be deprived of the use of all or any portion of the Premises, a proportionate adjustment in the Annual Fixed Rent and Additional Rent shall be made corresponding to the time during which and the portion of the Premises of which Tenant is so deprived and Percentage Rent shall be calculated using the adjusted Annual Fixed Rent in the formula specified in Section 4 hereof. (b) All damages awarded in connection with the taking of the Premises, whether allowed as compensation for diminution in value to the leasehold, to the reversion and fee of the Premises, 14 to Tenant's leasehold improvements or otherwise, shall belong to Landlord. Notwithstanding the foregoing, Tenant shall be entitled to make a separate claim to the condemning authority for damage to merchandise and fixtures, removal and reinstallation costs, and moving expenses. (c) Notwithstanding anything to the contrary contained in Sections 19(a) and 19(b) hereof, Landlord may cancel this Lease with no further liability to Tenant whatsoever in the event: that (a) fifty percent (50%) or more of the gross leasable area of the Shopping Center is taken by condemnation or right of eminent domain, or (b) following any taking of the Premises or the Building by condemnation or right of eminent domain, Landlord's mortgagee elects to require Landlord to make advance payments upon or for any indebtedness secured by a mortgage on the Shopping Center or any portion thereof. LANDLORD'S REMEDIES UPON DEFAULT Section 20.(a) If, at any time after the Commencement Date: (i) Tenant shall be in default in the payment of rent or other sums of money required to be paid by Tenant, or in the performance of any of the covenants, terms, conditions, provisions, rules and regulations of this Lease, and Tenant shall fail to remedy such default within ten (10) days of the date when due in the event the default is as to payment of any sums of money, or, except as provided in subsection (ii) below, within twenty (20) days after written notice thereof if the default relates to matters other than the payment of money; or (ii) Landlord shall have an audit made for any year in accordance with Section 5(b) above and the Gross Sales shown by Tenant's statement of Gross Sales for such year shall be found to be understated by more than three percent (3%); or (iii) Tenant becomes insolvent or makes an assignment for the benefit of creditors, or if any guarantor of Tenant shall become insolvent or make an assignment for the benefit of creditors, or if a receiver shall be appointed, or if proceedings under the Bankruptcy Code shall be instituted by or against Tenant or any guarantor of this Lease and the same shall not be dismissed by the Court within ninety (90) days after being filed, or if any event shall happen which, aside from this provision, would cause any assignment or devolution of Tenant's interest or occupancy hereunder by operation of law; then if any of the circumstances described in (i), (ii) or (_iii) above should occur, Landlord may, in addition to all other remedies given to Landlord in law or in equity, by written notice to Tenant, terminate this Lease or without terminating this Lease reenter the Premises by summary proceedings or otherwise and, in any event, dispossess the Tenant, it being the understanding and agreement of the parties; that under no circumstances is this Lease to be an asset: for Tenant's creditors by operation of law or otherwise. In the event of such reentry Landlord may, but need not, relet the Premises or any part thereof for such rent and upon such terms as Landlord, in its sole discretion, shall determine (including the right to relet the Premises for a greater or lesser term than that remaining under this Lease, the right to relet the Premises as a part of a larger area, and the right to change the character or use made of the Premises). If Landlord decides to relet the Premises or a duty tc relet is imposed upon Landlord by law, Landlord and Tenant agree that Landlord shall only be required to use the same efforts Landlord then 15 uses to lease other properties Landlord owns or manages (or if the Premises is then managed for Landlord, then Landlord will instruct such manager to use the same efforts such manager then uses to lease other space cr properties which it owns or manages); provided, however, that Landlord (or its manager) shall not be required to give any preference or priority to the showing or leasing of the Premises over any other space that Landlord (or its manager) may be leasing or have available and may place a suitable prospective tenant in any such available space regardless of when such alternative space becomes available; provided, further, that Landlord shall not be required to observe any instruction given by Tenant about such reletting or accept any tenant offered by Tenant unless such offered tenant has a creditworthiness acceptable to Landlord, leases the entire Premises, agrees to use the Premises in a manner consistent with this Lease and leases the Premises at the same rent, for no more than the Term and on the same other terms and conditions as in this Lease without the expenditure by Landlord for tenant improvements or broker's commissions. In any such case, Landlord may, but shall not be required :o, make repairs, alterations and additions in or to the Premises and redecorate the same to the extent Landlord deems necessary or desirable, and Tenant shall, upon demand, pay the cost thereof, together with Landlord's expenses of reletting, including, without limitation, any broker's commission incurred by Landlord. In the event of a reletting, Landlord may apply the rent therefrom first to the payment of Landlord's expenses, including attorneys' fees incurred by reason of Tenant's default and the expense of reletting (including, without limitation, repairs, renovation or alteration of the Premises) and then to the amount of rent and all other sums due from Tenant hereunder, Tenant remaining liable for any deficiency. Any and all deficiencies shall be payable by Tenant monthly on the date herein provided for the payment of Monthly Installments of Fixed Rent. In determining the deficiencies and rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each Lease Year of the unexpired portion of the Term shall be equal to the average Annual Fixed Rent and Percentage Rent paid by Tenant from the commencement of the Term to the time of default, or during the preceding three (3) full calendar years, whichever is shorter. (b) No termination of this Lease or any taking or recovery of possession of the Premises shall deprive Landlord of any of its remedies or rights of action against Tenant, and Tenant shall remain liable for all past or future rent, including all Additional Rent, taxes, insurance premiums, and other charges and rent payable by Tenant under this Lease, during the Term. In no event shall the bringing of any action for ren: or other default be construed as a waiver of the right to obtain possession of the Premises. (c) In the event of default by Tenant or in the event Landlord commences an action for the recovery of rent, or for any other amount due under the terms and provisions of this Lease, or because of the breach of any other covenant herein contained on the part of Tenant, Landlord may accelerate all amounts due hereunder including but not limited to rent for the balance of the term and in addition, Tenant shall pay to Landlord all expenses incurred therefor, including Landlord's reasonable attorneys' fees. (d) IN THE EVENT OF DEFAULT HEREUNDER OR WHEN THIS LEASE AND ITS TERM SHALL HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER OR WHEN THE TERM HEREBY CREATED SHALL HAVE EXPIRED, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF 16 RECORD TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER TENANT AND TO CONFESS JUDGMENT FOR THE POSSESSION AND RECOVERY BY LANDLORD OF POSSESSION OF THE DEMISED PREMISES TOGETHER WITH COSTS OF SUIT AND REASONABLE ATTORNEYS FEES OF NOT LESS THAN ONE THOUSAND DOLLARS, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL BE DETERMINED THAT POSSESSION OF THE DEMISED PREMISES SHOULD REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR OF TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, TO RECOVER POSSESSION OF THE DEMISED PREMISES AND TO CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE DEMISED PREMISES AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF LANDLORD TO CONFESS JUDGMENT FOR EJECTMENT AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION. IN THE EVENT OF DEFAULT HEREUNDER OR WHEN THE TEEM HEREBY CREATED SHALL HAVE EXPIRED, 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 THEREIN CONFESS JUDGMENT FOR DAMAGES FOR AMOUNTS DUE HEREUNDER TOGETHER WITH COSTS OF SUIT AND ATTORNEYS FEES OF NOT LESS THAN FIVE PERCENT OF THE AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE OR OF TENANT'S RIGHTS AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, AND TO CONFESS JUDGMENT AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT OF LANDLORD TO CONFESS JUDGMENT AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION. (e) Reserved. (f) Tenant expressly waives: (i) The right to delay execution on any real estate that may be levied upon to collect any amount which may become due under the terms and conditions of this Lease and any right to have the same appraised. Tenant authorizes the Prothonotary or Clerk to enter a writ of execution or other process upon 'Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of execution or other process. (ii) All rights under the Pennsylvania Landlord and Tenant Act of 1951 and all supplements and amendments thereto. (iii) The right to ten (10), fifteen (15) and/or thirty (30) days' notice, and notices to quit, required under certain circumstances by the Pennsylvania Landlord and Tenant Act of 1951, Tenant hereby agreeing that the respective notice periods provided for :_n this Lease shall be sufficient in either or any such case. (g) The parties hereto shall, and they hereby do, waive trial by jury in any action, proceeding, or counterclaim 17 brought by either of the parties against the other on any matters whatsoever arising out of, or in any way connected with, this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises, and/or any claim cf injury or damage arising out of the Premises, the Building, ox the Shopping Center. (h) All rights and remedies provided herein or otherwise existing at law or in equity are cumulative, and the exercise of one or more rights or remedies by either party shall not preclude or waive its right to the exercise of any or all of the others. DISCHARGE OF LIENS Section 21.(a) The Tenant shall not cause, suffer, or permit the Premises, Building, or the Shopping Center to be encumbered by any liens of mechanic's, laborers, or materialmen, any security interests, or any other liens. Tenant shall, whenever and as often as any such liens are filed against the Premises, the Building, or the Shopping Center and are purported to be for labor or material furnished or to be furnished to Tenant, discharge without demand by Landlord the same of record within ten (10 days after the date of filing by payment, bonding or otherwise, as provided by law. Tenant shall, upon reasonable notice and request in writing from Landlord, also defend against Landlord, at Tenant's sole cost and expense, any action, suit, or proceeding which may be brought on or for the enforcement of any such lien and shall pay any damages and satisfy and discharge any judgments entered in such action, suit, or proceeding and shall save harmless Landlord from any liability, claim, or damages resulting therefrom. In default of Tenant procuring the discharge of any such lien, Landlord may, without further notice, procure the discharge thereof by bonding or payment or otherwise, and all costs and expenses which Landlord may incur in obtaining such discharge shall be paid by Tenant as Additional Rent within ten (10) days of any demand therefor. (b) Nothing in this Lease, nor any approval by Landlord of any of Tenant's alterations or contractors, shall be deemed or construed in any way as constituting consent by Landlord for the making of any alterations or additions by Tenant, or constituting a request by Landlord, expressed or implied, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for the use or benefit of Landlord. LIABILITY OF LANDLORD Section 22. If Landlord shall fail to perform any covenant, term, or condition of this Lease, and if Tenant shall recover a money judgment against Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of such judgment and levy thereon against the right, title, and interest of Landlord in the Shopping Center as the same may then be encumbered and neither Landlord nor any of its partners shall be liable for any deficiency. It is understood that in no event shall Tenant have any right to levy execution against any property of Landlord other than its interest in the Shopping Center. Such right of execution shall be subordinate and subject to any mortgage or other encumbrance upon the Shopping Center. RIGHTS OF LANDLORD Section 23.(a) Landlord shall have the right, but not the duty, at all reasonable times, by itself or through its duly authorized agents, to go upon and inspect all or any part of the Premises and, at Landlord's option, to make repairs, alterations, and additions to the Premises, the Building, or any part thereof, or to show the Premises or the Building to lenders or to prospective 18 purchasers or tenants. (b) If Tenant shall fail to fulfill any of its obligations hereunder, Landlord shall have the right to fulfill such obligation and any amounts so paid by Landlord are agreed and declared to be "Additional Rent" due and payable to Landlord from Tenant with the next installment of Monthly Installment of Fixed Rent due thereafter under this Lease. Any such amounts which shall be paid by Landlord on behalf of Tenant shall bear interest from the date so paid by Landlord at the rate of eighteen percent (18%) per annum or at the prime rate of interest then being charged by Chase Manhattan Bank N.A., a national banking association, whichever is higher provided that in no event shall such rate to be charged Tenant exceed the rate otherwise permitted by law. (c) All rights of Landlord hereunder shall be deemed to accrue to the benefit of Landlord's mortgagee, if any. SUBORDINATION TO MORTGAGE Section 24.(a) Tenant understands, acknowledges and agrees that this Lease is and shall be subordinate to any mortgage, ground lease or other lien or restriction of record now existing or hereafter placed on or affecting the Premises, the Building, or the Shopping Center, or any part thereof, and to any renewals, refinancing or extensions thereof and to all advances made or hereafter to be made upon the security thereof:. This subordination provision shall be self-operative and no further instrument of subordination shall be required by any mortgagee qr lender. However, Landlord is hereby irrevocably vested with full power and authority to subordinate this Lease to any mortgage or other lien now existing or hereafter placed upon the Premises, the Building, or the Shopping Center as a whole. Further, Tenant agrees, upon the demand or request of any party in interest, to execute promptly such further instruments or certificates as may be necessary to carry out the intent of this Section. (b) Notwithstanding the provisions of Section 24(a) hereof, any mortgagee may at any time subordinate the lien of its mortgage to the operation and effect of this Lease without obtaining Tenant's consent thereto, by giving the Tenant written notice thereof, in which event this Lease shall be deemed to be senior to such mortgage without regard to their respective dates of execution, delivery, and/or recordation among the land records of the county in which the Shopping Center is located, and thereafter such mortgagee shall have the same rights as to this Lease as it would have had, were this Lease executed and delivered before the execution of such mortgage. (c) Tenant shall, within ten (10) days from written request by Landlord, execute and deliver to such persons as Landlord shall specify a statement in recordable form certifying that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect as so modified), stating the dates to which rent and other charges payable under this Lease have been paid, stating that Landlord is not in default hereunder (or, if Tenant alleges a default, stating the nature of such alleged default) and further stating such other matters as Landlord or its mortgagee(s) or proposed purchaser(s) shall reasonably require. (d) In the event any proceedings are brought for foreclosure or in the event of the exercise of the power of sale under any mortgage or deed of trust, Tenant shall attorn to :he purchaser in any such foreclosure or sale and recognize such purchaser as landlord under this Lease. NO WAIVER BY LANDLORD 19 Section 25. No waiver of any of the terms, covenants, provisions, conditions, rules, and regulations imposed by this Lease, and no waiver of any legal or equitable relief or remedy, shall be implied by the failure of Landlord to assert any rights, declare any forfeiture, or for any other reason. No waiver of any of said terms, provisions, covenants, conditions, rules, and regulations shall be valid unless it shall be in writing signed by Landlord. No waiver by Landlord or forgiveness of performance by Landlord in respect to one or more tenants of the Building shall constitute a waiver or forgiveness of performance in respect to Tenant. VACATION OF PREMISES Section 26. Tenant shall deliver and surrender to Landlord possession of the Premises (including all of Tenant's permanent work upon and to the Premises, all replacements thereof, and all fixtures permanently attached to the Premises during the Term) immediately upon the expiration of the Term or the termination of this Lease in any other way in as good condition and repair as the same were on the Rent Commencement Date (loss by any insured casualty and ordinary wear and tear only excepted) and deliver the keys at the office of Landlord or Landlord's agent; provided, however, that upon Landlord's request made at least thirty (30) days prior to or subsequent to the end of the Term, or the date Tenant is otherwise required to vacate the Premises, Tenant shall remove all fixtures and equipment affixed to the Premises by Tenant, and restore the Premises to their condition on the :Rent Commencement Date (loss by any insured casualty and ordinary wear and tear only excepted), at Tenant's sole expense. Such removal shall be performed prior to the earlier of the end of the Term or the date Tenant is required to vacate the Premises. MEMORANDUM OF LEASE Section 27. Upon request by Landlord, Tenant hereby agrees to execute for recordation a memorandum of this Lease. RENT DEMAND Section 28. Every demand for rent wherever and whenever made shall have the same effect as if made at the time it falls due and at the place of payment. After the service of any notice or commencement of any suit, or final judgment therein, Landlord may receive and collect any rent due, and such collection or receipt shall neither operate as a waiver of nor affect such notice, suit, or judgment. NOTICES Section 29. Any notices, requests, or consents required to be given by or on behalf of Landlord or Tenant shall be in writing and shall be sent by overnight courier or by registered or certified United States mail, return receipt requested, postage prepaid, addressed to the parties hereto at the respective addresses set forth on the Reference Pages, or at such other address as may be specified from time to time, in writing. Such notice shall be deemed given when it is deposited in an official United States Post Office, postage prepaid. Copies of all no'_ices to Landlord shall be sent to: Lavipour & Company, LLC 444 Park Avenue South Suite 302 New York, NY 10016 APPLICABLE LAW AND CONSTRUCTION 20 Section 30. The laws of the state in which the Premises is located shall govern the validity, performance, interpretation, and enforcement of this Lease. Tenant consents to the jurisdiction of the state in which the Premises is located. The invalidity or unenforceability of any provision of this Lease shall not affect or impair any other provision. All negotiations, considerations, representations, and understandings between the parties are incorporated herein. This Lease may be modified or altered only by agreement in writing between the parties. Tenant shall have no right to quit the Premises or cancel or rescind this Lease except as expressly granted herein. This Lease has been negotiated by Landlord and Tenant and this Lease, together with all of the terms and provisions hereof, shall not be deemed to have been prepared by either Landlord or Tenant, but by both equally. If any provision of this Lease is held to be invalid or unenforceable, the validity and enforceability of the remainder of this Lease shall not be affected thereby. FORCE MAJEURE Section 31. In the event that either party hereto shall be delayed, hindered in, or prevented from performing any act required hereunder by reason of strikes, lockouts, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or any other reason of a like nature not the fault of the party delayed in performing such act, then performance of such act shall be excused for the period of the delay and the period allowed for the performance of such act shall be extended for a period equivalent to the period of such delay. Notwithstanding anything contained herein to the contrary, Tenant shall not be excused from the payment of rent or other sums of money which may become due under the terms of this Lease. LANDLORD'S LIEN Section 32.(a) Tenant hereby grants to Landlord a lien and security interest on all property of Tenant now or hereafter placed in or upon the Premises, and such property shall be and remain subject to such lien and security interest of Landlord for payment of all rent and other sums agreed to be paid by Tenant herein. Landlord's lien, however, shall not be superior to a lien from a lending institution, supplier or leasing company, if such lending institution, supplier or leasing company has a perfected security interest in the equipment, furniture or other tangible personal property which originated in a transaction whereby Tenant acquired same. (b) The provisions of this Section relating to such lien and security interest shall constitute a security agreement under and subject to the Uniform Commercial Code of the state wherein the Shopping Center is located, so that Landlord shall have and may enforce a security interest on all. property of Tenant now or hereafter placed in or on the Premises, in addition to and cumulative of Landlord's liens and rights provided by law or by the other terms and provisions of this Lease. (c) Tenant agrees to execute as debtor such financing statement or statements and such other documents as Landlord may now or hereafter request in order to protect or further perfect Landlord's security interest. Notwithstanding the above, Landlord shall neither sell nor withhold from Tenant Tenant's business records. QUIET ENJOYMENT Section 33. Landlord hereby covenants and agrees that if Tenant shall perform all of the covenants and agreements herein 21 stipulated to be performed by Tenant, Tenant shall at all times during the continuance hereof have peaceable and quiet enjoyment and possession of the Premises without any manner of let or hindrance from Landlord or any person or persons claiming by, through, or under Landlord, subject, always, to the terms and provisions of this Lease. HOLDING; nvFR Section 34. If at the expiration of the Term or any renewal thereof Tenant continues to occupy the Premises, such holding over shall not constitute a renewal of this Lease, but Tenant shall be a tenant from month to month upon all of the terms, provisions, covenants, and agreements hereof, except that Landlord may, in its sole discretion, increase the amount of the Annual Fixed Rent thereafter due hereunder to an amount equal to 200°% of the Annual Fixed Rent being paid immediately prior to such expirations. BROKERS Section 35. Tenant represents and warrants that it has not dealt with any real estate broker other than the Broker(s) listed on the Reference Pages in connection with this Lease. Landlord shall pay any commission or fee due such Broker(s) as a result of this Lease. Tenant agrees to indemnify Landlord against, and hold it harmless from, all liabilities arising from any claim resulting from its having dealt with any other broker in connection with this Lease. CAPTIONS Section 36. All paragraph titles or captions contained in this Lease are for convenience only and shall not be deemed part of the context of this Lease. VARIATION IN PRONOUNS Section 37. All of the terms and words used in this Lease, regardless of the number and gender in which they are used, shall be deemed and construed to include any other number or gender, as the context or sense of this Lease or any paragraph or clause herein may require, as if such terms and words had been fully and properly written in the appropriate number and gender. LENDERS' APPROVAL Section 38. Notwithstanding anything contained herein to the contrary, Landlord's obligations and Tenant's rights under this Lease are conditioned upon its approval by Landlord's construction lender and permanent lender. In the event Landlord is unable to obtain such approvals, Landlord shall notify Tenant of the basis therefor and Tenant shall have thirty (30) days in which to agree to any changes requested by such lender in order to make the within Lease acceptable to it. In the event Ter-ant fails to agree to any such changes within said thirty (30) day period, Landlord may terminate this Lease within thirty (30) days thereafter. In such event, both parties shall be released from any further liability under this Lease. SECURITY DEPOSIT Section 39. The Security Deposit shall be held by Landlord without liability for interest and as security for the performance by Tenant of Tenant's covenants and obligations under this Lease, it being expressly understood that the Security Deposit shall not be considered an advance payment of rental or a measure of Tenant's damages in case of default by Tenant. The Security Deposit shall be paid to Landlord upon execution of this Lease. Landlord may, in 22 its sole discretion, from time to time without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any default under this Lease or to satisfy any other covenant or obligation of Tenant hereunder; 2rovided, however, that no portion of the Security Deposit shall be applied towards payment of the last month's rent hereunder without the prior written consent of the Landlord's mortgagee. Following any such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. If Tenant is not in default. at the termination of this Lease, the balance of the Security Deposit remaining after any such application shall be returned by Landlord to Tenant after deduction therefrom any unpaid obligation of the Tenant to the Landlord as may arise under this Lease, including, without limitation, the obligation to restore the Premises pursuant to Section 26 hereof. If Landlord transfers its interest in the Premises during the term of this Lease, Landlord may assign the Security Deposit to the transferee and thereafter Landlord shall have no further liability to Tenant for the return of such Security Deposit, and Tenant shall look solely to the transferee for return of such Security Deposit. NO INCOME PARTICIPATION Section 40. Neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession or other agreement for use, occupancy or utilization of the Premises which provides for rental or other payment for such use, occupanc,r or utilization based in whole or in part on the net income or profits derived by any person from the Premises or portion thereof leased, used, occupied or utilized (other than an amount based on a fixed percentage or percentages of receipts or sales), and that any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffective as a conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the mortgaged Premises. HAZARDOUS SUBSTANCES Section 41. In addition to, and not in limitation of any other provision of this Lease, Tenant agrees not to generate, store, use, treat or dispose of, nor to allow, suffer or permit the generation, storage, use, treatment or disposa]. of, any "hazardous waste" or "hazardous substance" (as those terms; are defined in the Resource Conversation and Recovery Act, 42 U.S.C Sections 6901 et sue., as amended ("RCRA") or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601 et sec., as amended ("CERCLA"), and any rules and regulations now or hereafter promulgated under either of such acts) or any pollutant or other contaminant on, in from or about the Premises or the Shopping Center, which hazardous material is prohibited or controlled by any federal, state or local law, ordinance, rule or regulation now or hereafter in effect. Tenant shall and hereby does indemnify and hold Landlord harmless from and against any and all loss, damages, expenses, fees, claims, costs and liabilities (including, but not limited to, attorneys' fees and costs of litigation) arising out of or in any manner related to the "release" or "threatened release" of, and for any clean-up responsibility imposed upon Landlord under any federal, state or local law, ordinance, rule or regulation now or hereafter in effect, with respect to any "hazardous waste" or "hazardous substance" (as those terms are defined in RCRA and CERCLA, and any rules and regulations now or hereafter promulgated thereunder), or any pollutant, or other contaminant on, in, from or about the Premises or the Shopping Center or any portion 'Dr portions thereof, which release or threatened release arises out of or is in any manner related to Tenant's use or occupancy of the 23 Premises. BINDING EFFECT Section 42. The provisions of this Lease shall bind and inure to the benefit of Landlord and Tenant, and their respective successors, legal representatives and permitted assigns, subject to the provisions of Section 17 hereinabove. Tenant shall be bound by any succeeding party of Landlord for all the terms, covenants and conditions hereof, provided that such succeeding party complies with its obligations as Landlord hereunder. IN WITNESS WHEREOF, intending to be legally bound hereby, the parties hereto have set their.hands this day of march, 2010, as to Landlord, and this $fday of March, 2010, as to Tenant. LANDLORD: Attest: By: Q _44 ?4LU , Attest: By : lcz p HAMPDEN CENTER, IN(-. By: Its_ Vice President TENANT: JAPANESE STEAKHOUSE AT HAMPDEN, INC. /7 A By: i , 24 EXHIBIT "A" ALL that certain lot or tract of land situate in Hampden Township, Cumberland County, Pennsylvania more fully bounded and described as follows, to wit: BEGINNING at an iron pin (found) on the southern right-of-way line of the Carlisle Pike (S.R. 1010, 50 R.O.W.) and the line of lands N/F of William C. Rowland, Jr. thence proceeding in a generally southern direction South 05 degrees, 45 minutes, 59 seconds East 1173.92 feet to a point on the northern right-of-way line of S.R. 0011 (120 R.O.W.); thence along said right-:)f-way line North 83 degrees, 59 minutes, 24 seconds West 546.43 to an iron pin (found); thence by same on a curve to the right having a radius of 3079.36 feet and an arc length of 1237.06 feet to a point on the western right-of-way line of Sporting Hill Road (S.R. 1013, 40 R.O.W.); thence along said right-of-way line North 05 degrees, 30 minutes, 45 seconds West 221.48 feet to a point; thence by lands N/F of David R. Miller North 83 degrees, 04 minutes, 02 seconds East 121.68 feet to an iron pin (found) ; thence by lands N/F of D.E.S. Associates and Universal Restaurants, Inc. North 86 degrees, 33 minutes, 17 seconds East 441.20 feet to an iron pin (found); thence by lands of Universal Restaurants, Inc. North 03 degrees, 14 minutes, 44 seconds West 415.88 feet to a point on the southern right-of-way line of the Carlisle Pike (S.R. 1010, 50 R.O.W.); thence by said right-of-way line North 86 degrees, 36 minutes, 37 seconds East 1082.77 feet to an iron pin (found) being the point and place of BEGINNING. Containing 31.963 Acres. A-1 EXHIBIT "B" - DESCRIPTION OF PREMISES The boundaries and location of the Premises, utilities, paved ingress, egress, etc., as shown on this site plan sets forth the general layout of the shopping center and shall not be a warranty or representation or agreement on the part of Landlord that said shopping center will be exactly as indicated on this site plan. (clot y as) na 1"1111 ONHOcJS YC?? Z S U o, WLO b 00 (L a I,I F- \I i U ;; I? _ (?IJ111J11LLU1Jl`J!llLllll1lJllllllllJ119 TInTr i11rI III??I 1111111111?V11Il?lll IIITI l III I?o HIM rnnnnlrn 1 I I IH 0111111 -?1 OIIIIIIIIIIINIIINIIII f! it 0 _ a OIIIIIIIIIIIIIHIINIIIIIIIIIIIIO 0111111- _ 1 111111llT 1111 -OUIJlllll 111 - c/ lJ-r UU?-uUrmTTn 4 mT?TrnrlJ ?Tmm1TfTTT1TTmfm1? t,. n V1 1 = _? Iilllll.1111.1.1111.IllllllLlllJ.llllllllllllllJlllll - C 2 _ Z U a 1 _?? QIlll?lll0 of+Il `t. Z4-1TIIIIIIIIII0 OHI C ? rn a C 6 na n • 6c= m ?0 Zavi o OI le rn ?r" OO ?Y bb J oo? 0 a rc J r0 R4 O U - - - MRTITTmrmrl L 1 ll 0111111111111111111110 _ __ _ ? m m n,.¢.rr,I s. .1 nT®TTrnfTT-T1Tl-I Till -1rI I N Trlyd A - __ _ ? - __ IIIIIIIiII IIIIIIII _ nl?l?illun a uuuull Ul Jn nlyllill? n I 4 w w ?`•' '" ,n ° 00000 0 ,? I I n 0 0 - B-1 EXHIBIT "C" LANDLORD'S WORK PREMISES WILL BE DELIVERED IN AN "AS IS" CONDITION. C-1 EXHIBIT "D" TENANT'S WORK WORK BY TENANT A. GENERAL REQUIREMENTS: 1. APPROVALS: The Tenant shall submit to the Landlord and obtain full approval. of all plans, specifications and work including all roof openings, signs, etc. Any damage done by Tenant shall be paid for by the Tenant. Landlord must approve any and all materials, equipment and fixtures which become a permanent part of the structure. Tenant shall furnish Landlord with a list of all contractors Tenant intends to use to work in his premises. Landlord reserves the right to approve or disapprove of any and all of Tenant's contractors. All contractors engaged by Tenant as permitted by Landlord shall be bondable, license contractors, possessing good labor relations, capable of performing quality workmanship and working in harmony with Landlord's and other tenants' contractors on the job. All work shall be coordinated with the general project work. The design of all work and installation undertaken by Tenant shall be approved by the Landlord. All work undertaken shall be at the Tenant's expense and shall not damage or weaken the structural strength of the building or any part thereof, and shall be done in a first-class workmanlike manner and in accord with all applicable Federal, State, County and local municipal statutes, ordinances, regulations, laws and codes. All tenant construction shall be non-combustible, and no combustible materials of any nature will be permitted above the finished ceiling. PLANS: The Tenant shall deliver to the Landlord within twenty (20) days after- the execution of this Lease, its plans and specifications for work within the leased space. PERMITS, INSPECTIONS, FEES, ETC.: All work installed by Tenant shall be coordinated wish and completed so as not to interfere with Landlord's construction schedule nor any other tenant's activities. Tenant shall secure and pay for any necessary building permits, inspections and fees. Prior to start of work, Tenant shall forward a copy of all required permits to the Landlord. 2. STOREFRONTS: Should Tenani: desire an individualized storefront other than Land-lord's standard, the additional cost of designing and constructing same shall be done at the Tenant's expense. The following criteria shall apply for same. a. Materials, designs and colcr selections shall be subject to the prior approval of Landlord and Landlord's architect. D-1 b. Nc portion of the storefront may protrude beyond the front line of the leased premises nor encroach in any manner into the covered sidewalk. C. No unfinished wall area will be permitted on the storefront. d. Storefront material shall be selected for durability and freedom from maintenance. e. Temporary storefront: If a Tenant's work is not completed within the time required by this Lease (or, in any event, is not completed on the grand opening date), Landlord may, at Tenant's expense, ins=all a temporary storefront or barricade. INSURANCES: Tenant shall :secure, pay for and maintain, or cause its contractor(s) to secure, pay for and maintain, as the case may be, during the continuance of construction and fixturing work within the leased premises, workman Compensation Employers Liability Insurance; Comprehensive General Liability Insurance (including Contractors Protective Liability); Owner's Protective Liability Insurance, insuring Tenant against any and all liability to third parties for damage due to bodily injury and property damage liability; and Tenant's Builder's Risk Insurance; and statutory Automobile Insurance. All of the foregoing insurance policies shall be with an insurance company approved by Landlord and the insurance limits contained therein shall be acceptable to Landlord. In addition, the aforesaid Tenant's insurance policies shall name Landlord, its Lender, its Architect and its General Contractor as an additional insured and Tenant's contractor shall deliver necessary evidence of all of the foregoing policies to Landlord. NO WORK SHALL BEGIN UNTIL ALL INSURANCE CERTIFICATES ARE IN POSSESSION OF LANDLORD. DELIVERIES: Each tenant shall be responsible for the cost of delivery and arranging all receipt and unloading of all materials and equipment pertain=ng to his work. CLEANING OF PREMISES: The Tenant shall, at all times, keep the premises free from accumulations of waste materials and/or rubbish caused by his employees, workers, or contractors. Tenant shall maintain the premises in a clean and orderly condition during construction and merchandising. Tenant shall promptly remove all unused construction materials, equipment, shipping containers, packaging, debris, and flammable waste from the Shopping Center. Tenan:? shall contain all construction materials, equipment, fixtures, merchandise, shipping containers and debris within the premises. The common exterior areas of the Shopping Center shall be clear of Tenant's equipment, merchandise, fixtures, refuse and debris at all times. Trash storage within the premises shall be confined to covered metal contains. Tenant is responsible for the removal of D-2 all trash and debris from Tenant's premises. 6. CERTIFICATE OF OCCUPANCY: The Tenant shall secure a Certificate of occupancy from the jurisdictional authorities in sufficient time to allow Tenant to open the premises in accordance with the opening requirements of this Lease. A copy of the Certificate of occupancy shall be forwarded to the Landlord. 7. VIOLATIONS: In the event the Tenant is notified of any violations of codes, ordinance regulations, requirements or guideline: either by the jurisdictional authorities or by the Landlord, Tenant shall, at its expense, correct such violations within seven (7) calendar days after such notification. 8. ROOF OPENINGS: Any roof opening required by the Tenant will be performed by Landlord's roofing contractor at the Tenant's expense. Such openings will include supporting structures, angles, curbs, flashings, ducts, vents and grilles. Landlord may refuse to approve any openings which, in Landlord's judgement, exceed the capability of the structural system. 9. LIENS: Tenant shall not permit any mechanic's liens to attach to the leased premises or the Shopping Center development in which the premises are located on account of any labor or materials furnished or supplied to the demised premises in connection with Tenant's Work. In the event that such a lien is attached, Tenant shall forthwith cause the same to be discharged or in lieu thereof furnish a bond for the benefit: of Landlord issued by a duly licensed surety company authorized to do business in the state the project is located, which by its terms indemnifies and holds the Landlord harmless from the effects of such lien. In addition, Tenant shall provide Landlord with final waivers of lien, materialman certificates, affidavits and sworn statements from all tenant's contractors and suppliers within thirty drays of completion of work. 10. LANDLORD'S RIGHT OF ACCESS TO PREMISES: Landlord, Landlord's agent, an independent contractor, or an authorized utility company, as the case may be, shall have the right, subject to Landlord's written approval, to run utility lines, conduits or duct work, where necessary or desirable, through ceiling space, column space or other parts of the demised premises and to repair, alter, replace or remove the same, al"- in a manner which does not interfere unnecessarily with Tenant's use thereof. GENERAL WORK: The Tenant will furnish and install the following items of work at its sole cost and expense: 1. Interior partitions within the leased areas, except for the toilet room walls. 2. Floor coverings. D-3 3. Interior finishing of wall surfaces including priming, painting, staining and wall coverings. 4. Display window backs, display window floor, display window ceilings, and display window lighting fixtures and power for the same. 5. Install ceiling tiles. 6. PLUMBING WORK: Any plumbing facilities in excess of that provided by the Landlord, such as increase in size of service, drinking fountains, additional toilet facilities, janitor's sink, hose bibbs, lab sinks, special fixturing and outlets, will be provided, installed and connected at Tenant's expense. Tenant will also pay for any increases in water and sewer capital charges or any other related charges imposed by the municipality or Landlord above the municipality's or Landlord's standard charge for a retail store due to the Tenant's use of the premises, i.e. restaurants, beauty salon, etc. Tenant will provide fire extinguishers as required by building code and insurance underwriters. HEATING, VENTILATING AND AIR CONDITIONING: Added capacities to roof top HVAC units, if necessary, shall be furnished and installed by the Tenant. SPRINKLER WORK: Cost of additional pipe and heads required as a result of interior store partitions, mezzanine areas, unusual use of premises or tenant fixtures will be charged to Tenant. ELECTRICAL WORK: Tenant shall furnish, :install and pay for all electrical work other than items furnished by Landlord, including but not :Limited to: a. Increased size of incoming electrical service and panel. b. Telephone and communication system. C. Burglar alarms and/or warning systems. d. Emergency generator. e. Tenant's store signs and controlling time clocks. f. High voltage outlets. g. Floor outlets. h. Music systems. i. Additional exit signs and emergency lighting units necessitated by Tenant's fixtures and interior partitions. 10. MISCELLANEOUS WORK: a. All trade fixtures, cabinets, shelving, counters, appliances, furniture, furnishings, etc., signs (interior and exterior) and other personal property shall be new and of first quality and shall be furnished and installed by Tenant. b. Toilet paper holders, soap dispensers, mirrors, shelves, towel dispensers, etc. shall be provided by the Tenant. Tenant at his expense shall sound insulate, to D-4 extent required by the nature of its business, the demising walls so as not to permit sound tc emanate outside the premises. 11. SIGNS: The Tenant shall '-urnish, install and connect identification signs at locations provided at canopy fascia at Tenant's expense. Canopy fascia sign design, lighting and sign copy color shall be subject to Landlord's approval. Canopy signs shall be in conformance with the detailed sign criteria, as prepared by Landlord's Architect. Prior to fabrication, sign plans and specifications must be submitted for Landlord's approval. D-5 EXHIBIT "E" RULES AND REGULATIONS Landlord reserves the right to change from time to time the format of the signs or lettering on the signs, and to require replacement of any signs previously approved pursuant to Section 16 to conform to Landlord's new standard sign criteria established pursuant to any remodeling of the Shopping Center. Tenant shall not, without the prior written consent of Landlord (i) paint, decorate or make any changes to the store front of the Premises; or (ii) install any exterior lighting, awning or protrusions, signs, advertising matter, decoration or painting visible from the exterior of the Premises or any coverings on exterior windows and doors, excepting only dignified displays of customary type in store windows. If Landlord objects in writing to any of the foregoing, Tenant shall immediately discontinue such use. Tenant shall not (i) conduct or permit any fire, bankruptcy or auction sale (whether real or fictitious) unless directed by order of a court of competent jurisdiction, or conduct or permit any legitimate or fictitious "Going Out of Business" sale nor represent or advertise that it regularly or customarily sells merchandise at "manufacturer's" "distributor's" or "wholesale" "warehouse" or similar prices or other than at "offprice" or at "retail" prices; (ii) use, or permit to be used, the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for solicitation or for the sale or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public meetings, circus or other entertainment (except for promotional activities in cooperation with the management of the Shopping Centex- or an association of merchants within the Shopping Center); (iii) use or permit to be used any sound broadcasting or amplifying device which can be heard outside of the Premises or any flickering lights; (iv) operate or cause to be operated any video games or transportation devices; or (v) use or permit to be used any portion of the Premises for any unlawful purpose or use or permit the use of any portion of the Premises as regular living quarters, sleeping apartments or lodging rooms or for the conduct. of any manufacturing business. Tenant shall at all times keep the Premises at a temperature sufficiently high to prevent freezing of water pipes and fixtures. Tenant shall not, nor shall Tenant at any time, permit any occupant of the Premises to: (i) use, operate or maintain the Premises in such manner that any rates for any insurance carried by Landlord, or the occupant of any premises within the Shopping Center, shall thereby be increased; or (ii) commit waste, perform any acts or carry on any practices which may injure the Shopping Center or be a nuisance or menace to other tenants in the Shopping Center. Tenant shall not obstruct any sidewalks, passages, exits, entrances, truck ways, loading docks, package pick-up stations, pedestrian sidewalk and ramps, first aid and comfort stations, or stairways of the Shopping Center. No tenant and no employee or invitee of any tenant shall go upon the roof of the Shopping Center without notifying the Landlord. Landlord will furnish Tenant free of charge with two keys to each door lock in the Premises. Landlord may make a reasonable charge for any additional keys. Tenant, upon the E-1 termination of its tenancy, shall delD_ver to Landlord the keys of all doors which have been furnished to Tenant, and in the event of loss of any keys so furnished, shall pay Landlord therefor. If Tenant requires telegraphic, telephonic, burglar alarm or similar services, it shall first obtain and comply with Landlord's instructions in their installation. Tenant shall not place a load upon any floor which exceeds the designed load per square foot or the load permitted by law. Landlord shall have the right to prescribe the weight, size and position of all equipment, materials, furniture or other property brought into the Premises. Heavy objects shall stand on such platforms as determined by Landlord to be necessary to properly distribute the weight. Business machines and mechanical equipment belonging to Tenant which cause noise or vibration that may be transmitted to the structure of Tenant's store or to any other space to such a degree as to be objectionable to Landlord or to any tenants shall be placed and maintained by Tenant, at Tenant's expense, on vibration eliminators or other similar devices. The persons employed to move equipment in or out of Tenant's store must be acceptable to Landlord. Landlord will not be responsible for loss of, or damage to, any equipment or other property from any cause, and all damage done to the Shopping Center by maintaining or moving such equipment or other property shall be repaired at the expense of Tenant. 9. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed. No foreign substance of any kind whatsoever shall be thrown therein, and the expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have caused it. 10. Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of Tenant's store. Tenant shall not interfere with radio or television broadcasting or reception from or in the Shopping Center or elsewhere. 11. Except as approved by Landlord, Tenant. shall not damage partitions, woodwork or plaster or in any way deface the Premises. Tenant shall not cut or bore holes for wires. Tenant shall not affix any floor covering to the floor of the Premises in any manner except as approved by Landlord. Tenant shall repair any damage resulting from noncompliance with this rule. 12. Tenant shall not install, maintain or operate upon the Premises or in any Common Areas under the exclusive control of Tenant any vending machine or video game without Landlord's prior written consent. 13. Tenant shall store all its trash and garbage in containers within its Premises and/or in the portion of the Common Areas designated by Landlord. Tenant shall not place in any trash box or receptacle any material which cannct be disposed of in the ordinary and customary manner of trash and garbage disposal. All garbage and refuse disposal shall be made in accordance with directions issued from time to tine by Landlord. 14. No cooking shall be done or permitted by Tenant on the Premises without Landlord's prior written consent, except for brewing coffee and similar beverages and use of a single E-2 microwave oven by employees only and in any event will not permit odors to emanate from the Premises provided that such use is in accordance with all applicable federal, state and city laws, codes, ordinances, rules and regulations. 15. Tenant shall not use in any space any hand trucks except those equipped with rubber tires and side guards or such other material-handling equipment as Landlord may approve. Tenant shall not bring any other vehicles of any kind into Tenant's store. 16. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord. 17. All loading of goods shall be done only at such times, in the areas, and through the entrances, designated for such purposes by Landlord. The delivery or shipping of merchandise, supplies and fixtures to and from the leased premises shall be subject to such rules and regulations as in the judgment of the Landlord, are necessary for the proper operation of the leased premises or the Shopping Center. 18. Tenant, Tenant's employees and Tenant's customers shall park their cars only in such portion of the parking area designated for those purposes by the Landlord. Tenant shall furnish Landlord with state automobile license numbers assigned to Tenant's employees within five (5) days after taking possession of the premises and shall thereafter notify the Landlord of any changes within five (5) days after changes occur. In the event that the Tenant or its employees fail to park their cars in designated parking areas as aforesaid, then the landlord, at its option, shall charge the Tenant Ten Dollars ($10.00) per day or partial day per car parked in any area other than that designated. 19. Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular tenant or tenants, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of any other tenant or tenants, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Shopping Center. 20. These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of any lease of premises in the Shopping Center. 21. Tenant shall be responsible for the observance of all of the foregoing rules by Tenant's employees agents, clients, customers, invitees and guests. 22. Tenant shall use, at Tenant's cost, such pest extermination contractor as Landlord may direct and at such intervals as Landlord may require. 23. Trailers or trucks shall not be permitted to remain parked overnight in any area of the Shopping Center, whether loaded, unloaded or partially loaded. No parking shall be permitted of any trailer, truck or other vehicle in any area of the Shopping Center a_ any time for purposes of advertising or promotion without Landlord's written permission. Tenant agrees to comply with all additional and supplemental rules and regulations upon notice of same from the Landlord. E-3 EXHIBIT "F" TENANT SIGN CRITERIA GENERAL: This exhibit is meant to outline the tenant sign criteria for the Retail Shops at HAMPDEN CENTRE. It is drafted as a guide to provide a consistent graphic technique and may be amended or altered only with the written consent of Landlord. Tenants will be required to submit detailed and dimensioned drawings indicating graphic content, colors, script, construction and fastening details and electrical requirements to Landlord for review and approval prior to fabrication and installation of any signs. A. The advertising content of all signs shall be limited to letters designating the store name, or the type of store. Tenants will not be permitted to indicate specific merchandise sold (i.e. brand names, etc.), specific services rendered (i.e., "free gift wrapping" etc.), or indicate any advertising slogans (i.e., "The We Care People", etc.). B. Crests and corporate shield designs may be permitted, but, must be submitted to the Landlord for approval for compatibility of design intent with the sign criteria. C. The location, character, design, color and layout of all signs shall be subject to the approval of the landlord. Proper consideration will be given to signs used by occupants for the same or similar retail operations elsewhere. D. No sign shall be placed in final position without written approval of the Landlord. E. All signs are to be fabricated and installed by a licensed sign installer and shall be in compliance with all local, state and national codes governing sign installation and shall bear a U.L. label. F. Tenant may install one identity sign on its service door with maximum 2" high letters. Identity sign shall list place of business as indicated on the tenant sign located on the sign band and shall be "Helvetica Medium" all capital letters. G. If any or all of the sign standard limitations as described herein are found to be invalid under local sign and/or zoning ordinances, regulations or law, to the extent that such limitations and restrictions, or any other ordinances, regulations or law, is invalid as described, then the Landlord may modify said limitations or restrictions to comply with such local ordinance, regulation or law. In no event shall the invalidity of any one of the limitations or restrictions be deemed to invalidate the :sign standard scheme as outlined. SIGN REQUIREMENTS: A. All signage shall not exceed 600 of storefront lengt.!, (see attached Elevation Drawing - Appendix A). B. Maximum sign height is 36". C. No sign shall exceed maximum brightness of 100 foot lamberts. D. No fluorescent tubing, incandescent lamps, ballast boxes, electrical transformers, crossovers, condr.it or sign cabinets shall be permitted. E. No flashing, moving, flickering, or bl:._nking illumination F-1 shall be permitted. F. No animation, moving lights, or floodlight illumination shall be permitted. G. The name and/or stamp of the sign contractor or sign company, or both, shall not be exposed to view. H. Signs, symbols, and/or trademarks must have a preliminary approval by Landlord before shop drawings are executed. I. One sign, or other graphic treatment, is allowed per storefront elevation. Stores with two storefront elevations may have a second sign with the written approval of the Landlord. Such second signs should maintain the same sign message, graphic technique and design intent as the first sign. J. Signing is limited to trading name or logo only. K. All signing must occur on the sign band unless otherwise approved. L. Color of raceway must match sign band color. PPnPTRTTPTI eT(INTC . A. Paper signs, cardboard and hanging signs and/or stickers utilized as signs. B. Signs of a temporary character or purpose, irrespective of the composition of the sign or material used therefor. C. Moving signs. D. Pictures or paintings. E. Box type signs or signs with formed plastic letters. F. Advertising devices, slogans, merchandise or several listings. G. Moving or rotating objects. H. Back illuminated signs, "halo" effect letters. 1. Moving or flashing lights. J. Painted on or luminous letters. K. Cloth, wood, paper- or cardboard. L. Free standing signs or sandwich boards. M. Noise making devices. N. Boxes, cabinets, frames, transparent or translucent panels. 0. Rooftop signs or banners, except for those beneath canopy, as approved by the Landlord. P. Names of designer, manufacturer or installer. Q. Any other signs, graphics or components which the Landlord determines to distract from the overall center theme. R. Individual dimensional wood, metal or plastic letters. F-2 S. Formed plastic or injected molded plastic signs. T. Projecting signs and banners. U. Exposed neon tubing. ILLUMINATED SIGNS: A. All sign band identification signs to be internally channeled letters with opaque metal sides and translucent acrylic face. Letters shall be no more than 6" in depth and not less than 6" high, with concealed ballasts. Letters must be installed on a raceway. The color of the raceway must match the sign band/facade. 2. Exposed neon tubes forming letters or logos shall be used only in decorative fashion and shall be allowed at the discretion of the Landlord on an individual basis. SIGN SPECIFICATIONS: These specifications are meant to serve as performance standards for tenant signage at the Shopping Center. Wall mounted, internally illuminated sign: Custom fabricated aluminum plastic face, interior neon illumination, and individual letters. Depth of letters: Overall sign depth is 611. Plastic face: As selected from stock colors connected to letters by continuous aluminum retainer. Retainer ring size to be 3/8" x 1/2". Letter stroke: Minimum 3" Typography: All standard letter styles are permitted per attached sheet (see "Letter Styles" - Appendix "B"). Color: Permitted colors for illuminated signs are as follows: 1. Lettering to be standard colors as approved by Landlord. 2. Aluminum frames to match lettering coJ._or as approved by Landlord. Illumination: By two (2) neon tubes with standard ratings of 118 volts. F-3 EXHIBIT "G" LEASE GUARANTY In consideration of the making of the lease agreement by and between HAMPDEN CENTER, INC., as Landlord, and ZU WANG ZHANG, as Tenant, prepared March 26, 2010, for the Premises commonly described as C-1 Hampden Centre (hereinafter referred to as the "Lease") and for the purpose of inducing Landlord to enter into and make the Lease, the undersigned hereby unconditionally guarantees the full and prompt payment of rent and all other sums required to be paid by Tenant under the Lease ("Guaranteed Payments") and the full and faithful performance of all terms, conditions, covenants, obligations and agreements contained in the Lease on the Tenant's part to be performed ("Guaranteed Obligations") and the undersigned further promises to pay all of Landlord's costs and expenses (including reasonable attorney's fees) incurred in endeavoring to collect the Guaranteed Payments or to enforce the Guaranteed obligations or incurred in enforcing this guaranty as well as all damages which Landlord may suffer in consequence of any default or breach under the Lease or this guaranty. 1. Landlord may at any time and from time to time, without notice to the undersigned, take any or all of the following actions without affecting or impairing the liability and obligations of the undersigned on this guaranty: a. grant an extension or extensions of time of payment of any Guaranteed Payment or time for performance of any Guaranteed obligation; b. grant an indulgence or indulgences in any Guaranteed Payment or in the performance of any Guaranteed Obligation; C. modify or amend the Lease or any term thereof, or any obligation of Tenant arising thereunder; d. consent to any assignment or assignments, sublease or subleases and successive assignments or sublessees or a change or different use of the leased premises; e. consent to an extension or extensions of the term of the Lease; f. accept other guarantors; and/or g. release any person primarily or secondarily liable. The liability of the undersigned under this guaranty shall in no way be affected or impaired by any failure or delay in enforcing any Guaranteed Payment or Guaranteed obligation or this guaranty or any security therefor or in exercising any right or power in respect thereto, or by any compromise, waiver, settlement, change, subordination, modification or disposition of any Guaranteed Payment or Guaranteed Obligation or of any security therefor. This is a guaranty of payment and performance and not of collection. The liability of the undersigned under this guaranty shall be direct and immediate and not conditional or contingent upon the pursuit of any remedies against Tenant or any other party or security. 2. The undersigned waives all diligence in collection or in protection of any security, presentment, protest, demand, notice of dishonor or default, notice of acceptance of this guaranty, notice of any extensions granted or other action taken in reliance hereon and all demands and notices of any kind in G-1 connection with this guaranty or any Guaranteed Payment or Guaranteed obligation. 3. The undersigned hereby acknowledges full and complete notice and knowledge of all of the terms, conditions, covenants, obligations and agreements of the Lease. 4. The payment by the undersigned of any amount pursuant to this guaranty shall not in any way entitle the undersigned to any right, title or interest (whether by subrogation or otherwise) of the Tenant under the Lease or to any security being held for any Guaranteed Payment or Guaranteed Obligation. 5. If Tenant fails to make such payments as provided above, or if Tenant is otherwise in default under the Lease on said termination date, this guaranty shall not terminate and shall be continuing, absolute and unconditional and remain in full force and effect until all Guaranteed Payments are made, all Guaranteed Obligations are performed, and all obligations of the undersigned under this guaranty are fulfilled. 6. This guaranty shall also bind the successors and assigns of the undersigned and inure to the benefit of Lessor, its successors and assigns. This guaranty shall be construed according to the laws of the Commonwealth of Pennsylvania, in which state it shall be performed by the undersigned. 7. If this guaranty is executed by more than one entity, all singular nouns and verbs herein relating to the undersigned shall include the plural number and the obligation of the several guarantors shall be joint and several. 8. The Landlord and the undersigned intend and believe that each provision of this guaranty comports with all applicable law. However, if any provision of this guaranty is found by a court to be invalid for any reason, the parties intend that the remainder of this guaranty shall continue in full force and effect and the invalid provisions shall be construed as if they were not contained herein. 9. IN THE EVENT OF DEFAULT HEREUNDER, IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR AS ATTORNEY FOR THE UNDERSIGNED AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER THE UNDERSIGNED AND TO THEREIN CONFESS JUDGMENT FOR DAMAGES FOR AMOUNTS DUE HEREUNDER TOGETHER WITH COSTS OF SUIT AND ATTORNEYS FEES OF NOT LESS THAN FIVE PERCENT OF THE AMOUNT CLAIMED, FOR WHICH THIS DOCUMENT SHALL BE SUFFICIENT WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS GUARANTY OR OF THE UNDERSIGNED'S RIGHTS AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION OR ACTIONS AS HEREINBEFORE SET FORTH, AND TO CONFESS JUDGMENT AS HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING CONTAINED IN THIS GUARANTY TO THE CONTRARY, THE RIGHT OF LANDLORD TO CONFESS JUDGMENT AS SPECIFIED ABOVE SHALL NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE ANY OTHER ACTION. 10. Notwithstanding any other provision herein, provided that the undersigned fulfills the obligations hereunder within sixty (60) days after written notice thereof, the Guaranty hereunder shall be limited to all arrears plus one hundred eighty dollars ($180,000). In the event the undersigned does not remit payment within the sixty (60) days as aforesaid, the Guaranty shall not be limited in any way. G-2 law. THE UNDERSIGNED expressly waives all notice required under IN WITNESS WHEREOF, intending to be legally bound hereby, the undersigned has executed this guaranty this Jday of March, 2010. V W'_tne s Z WANG Z y' G-3 EXPLANATION OF RIGHTS A. I/We clearly and specifically understand that by signing a Guaranty dated March /?.; 2010, to HAMPDEN CENTER, INC. (hereinafter "HOLDER") which con gins a Confession of Judgment clause: 1. I/We will authorize the Holder to enter a judgment against me/us in Holder's favor which will give the Holder a lien upon any real estate which I/we may own, including my/our home; 2. I/We will give up the right to any notice or opportunity to be heard prior to the entry of this judgment on the records of the court; 3. I/We will agree that the Holder can enter this judgment without any proof of nonpayment or other default on my/our part; 4. I/We will subject all of my/our property, both personal property and real estate, to execution (and sheriff's sale), pursuant to this judgment, prior to proof of nonpayment or other default on my/our part; 5. I/We will be unable to challenge this judgment, should the Holder enter it, except by a proceeding to open or strike the judgment; and such a proceeding will result in attorney's fees and costs which I/we will have to pay; and 6. I/We know and understand that it is the Confession of Judgment clause in the above-described Guaranty which gives the Holder the rights enumerated above. B. IF I/WE DO NOT SIGN A GUARANTY WHICH CONTAINS A CONFESSION OF JUDGMENT CLAUSE, I WE UNDERSTAND THAT I WE WOULD HAVE THE FOLLOWING: - 1. The right to have notice and an opportunity to be heard prior to judgment; 2. The right to have the burden of proving default rests upon the Holder before my/our property can be exposed to execution; and 3. The right to avoid the additional expense of attorney's fees and costs incident to opening or striking off a confessed judgment. C. I/We fully and completely understand these rights which I/we have received prior to signing the above-described Guaranty and are clearly aware that these rights will be given up, waived, relinquished and abandoned if I/we sign the Guaranty. Nevertheless, I/we freely and voluntarily choose to sign the Guaranty, my/our intention being to give up, waive, relinquish and abandon my/our known rights (as described in Paragraph B above) and subject myself/ourselves to the circumstances described immediately above. D. I/We certify that the income of the undersigned, or conjugal (husband-wife) income with both spouses executing the document, is at least $10,000.00 annually. I/WE HAVE READ THIS ENTIRE FORM AND I/WE FULLY UNDERSTAND ITS CONTENTS: Z WANG ZHAN c G-4 LEASE MODIFICATION AGREEMENT AGREEMENT made this ?h _ day of January, 2011, by and between HAMPDEN CENTER, INC., as Landlord, and JAPANESE STEAKHOUSE AT HAMPDEN, INC., as Tenant, regarding the premises located at and known as 4920 Carlisle Pike, Space C-1, Mechanicsburg, Pennsylvania 17050 (the "PREMISES"), hereinafter jointly referred to as the Parties. WITNESSETH: R-1. Landlord and Tenant executed an Agreement of Lease dated March 26, 2010, for the Premises ("LEASE"). R-2. The Parties agree to expand the Premises under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing, and in consideration of the promises, covenants and conditions contained herein, the Parties agree as follows. 1. The recitals set forth above are incorporated herein by reference. 2. The Premises shall be expanded to include the 1500 square feet known as 4910 Carlisle Pike, Space B-6 ("EXPANSION PREMISES") which will increase the Premises to a total of 8700 square feet. Landlord shall deliver the Expansion Premises to Tenant in "AS IS", "WHERE IS" condition. 3. The term for the Expansion Premises shall be coterminous with the Term under the Lease and shall have a natural expiration date of October 31, 2015. 4. Tenant shall have ninety (90) days from the date hereof to complete the improvements to the Expansion Premises and open ?x for business. All work to be performed by Tenant shall be subject to Landlord's prior consent which consent shall not be unreasonably withheld. 5. Rent and Additional Rent for the Expansion Premises shall commence effective January 1, 2011 ("Expansion Rent Commencement Date" or "ERCD"). 6. Beginning on the Expansion Rent Commencement I)ate the Rent for the Premises and the Expansion Premises (collectively "Entire Premises") shall be: LEASE YEARS ANNUAL MINIMUM RENT MONTHLY RENT ERCD - 5 $100,050.00 .> 8,337.50 7. As provided for in the Lease, Tenant is granted two 5- year options to renew the Lease. Option Rent shall be: OPTION YEARS ANNUAL MINIMUM RENT MONTHLY RENT 6 - 10 $115,057.50 588.13 11 - 15 $132,316.13 $11,,026.34 8. Beginning on the Expansion Rent Commencement Date Tenant's share of Additional Rent which includes but is not limited to the Common Area Costs shall adjust to 3.8% from 3.16%. 9. Until the Expansion Rent Commencement Date, Tenant shall continue to pay all charges due and owing under the Lease. 10. Provided that Tenant has not defaulted under the Lease or hereunder, Tenant shall receive a credit of one month's Fix Rent ($8,337.50) twelve (12) months after Tenant opens for business at the Expansion Premises. 11. There are no defaults by Landlord under the Lease or events which, with the giving of notice or passage of time, or both, could become defaults and as of the date hereof, Tenant is entitled to no credit, offset or deduction in rents due under or defense to enforcement of the Lease. 12. Tenant has not assigned in any way its interest in the Lease or the Premises in whole or in part. 13. All other terms and conditions of the Lease not in conflict with the terms hereof shall remain in full force and effect. IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties set their hands and seals the day and year first above written. Attes i By: Secretary By: HAMPDEN CENTER, INO. By. _ Vice President JAPANESE STEAKHOUSE AT HAMPDEN, INC. By: The terms of the Lease Guaranty are applicable to the terms hereunder. lziL "nz. Wang Zhan q SECOND LEASE MODIFICATION AGREEMENT AGREEMENT made this day of June, 2011, by and between HAMPDEN CENTER, INC., as Landlord, and JAPANESE STEAKHOUSE AT HAMPDEN, INC., as Tenant, regarding the premises located at and known as 4920 Carlisle Pike, Space C-1, Mechanicsburg,, Pennsylvania 17050 (the "PREMISES"), hereinafter jointly referred to as the Parties. WITNESSETH: R-1. Landlord and Tenant executed an Agreement of Lease dated March 26, 2010; and a Lease Modification Agreement dated January 7, 2011, for the Premises (jointly "LEASE"). R-2. The Parties agree to modify the Premises and the terms under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the foregoing,'and in consideration of the promises, covenants and conditions contained herein, the Parties agree as follows. 1. The recitals set forth above are incorporated herein by reference. 2. Prior to July 15, 2011, the Expansion Premises shall be returned to Landlord in the condition it was in prior to the expansion therein. Tenant at its expense and in compliance with law, shall vacate the Expansion Premises and reconstruct/repair the demising wall (including without limitation remove Tenant's furniture and fixtures therefrom, restore and paint the wall to match the existing color, and comply in all respects with demands of Hampden Township) recreating space C-l. The final condition of the Expansion Space shall be subject to Landlord's reasonable approval. 3. Tenant shall reopen for business prior to July 15, 2011 in the Premises. 4. Commencing on July 1, 2011, and continuing through June 30, 2012, ("Accommodation Period") as a temporary accommodation to Tenant, Tenant shall remit to Landlord Three Thousand Three Hundred Dollars ($3,300.00) per month as its monthly :Installment of Fixed Rent and Two Thousand One Hundred Dollars ($2,100.00) per month as its monthly contribution of common area costs (collectively "Reduced Rent"). The payment due July 1,. 2011 ($5400) may be paid by Tenant to Landlord as follows: $3750 by I July 15, 2011, and $1650 by September 1, 2011. 5. Provided that there is no default during the Accommodation Period, the difference between the Rent and Additional Rent under the Lease and the Reduced Rent ($3600 per month, $43,200 for one year) shall be forgiven. In the event that there is a default during the Accommodation Period, the difference between the Rent and Additional Rent under the Lease and the Reduced Rent shall be due as an arrearage and the One Hundred Eighty Thousand Dollars ($180,000) set forth in the Guaranty of the Lease shall be increased by Forty Three Thousand Two Hundred Dollars ($43,200). 6. In addition, Tenant acknowledges that it owes Rent and Additional Rent through April 30, 2011, in the amount of Twelve Thousand Seven Hundred Ninety-nine Dollars ($12,799.94) which amount shall be added to the One Hundred Eighty Thousand Dollars ($180,000) set forth in the Guaranty of the Lease. Together with 2 the amounts due under sections 5. and 6. herein, the One Hundred Eighty Thousand Dollars ($180,000) set forth in the Guaranty of the Lease shall be increased to Two Hundred Thirty-six Thousand Dollars ($236,000) __If Tenant pays timely all amounts due during t- e Accommodation Period the Guaranty shall be reduced to One Hundred Ninety-three Thousand Dollars ($193,000.00) (180,000 plus April 30 approximate arreara e) In the event Tenant defaults during the Accommodation Period, the Guaranty shall edual the One Hundred Eighty Thousand Dollars ($180,000) plus all arrears including arrears that continue to accrue. 7. Rent for May and June 2011 shall be forgiven; Additional Rent for May and June, 2011 totaling Four Thousand Two Hundred Dollars ($4200.00) shall be paid Two Thousand One Hundred Dollars ($2100.00) by June 27, 2011 and the balance by September 1, 2011. 8. Commencing July 1, 2012, Rent and Additional. Rent under the Lease shall revert to the amounts stated therein. 9. Tenant shall not receive a credit of $8,337.50 as contemplated under the Lease Modification Agreement. 10. There are no defaults by Landlord under the Lease or events which, with the giving of notice or passage of time, or both, could become defaults and as of the date hereof, Tenant is entitled to no credit, offset or deduction in rents due under or defense to enforcement of the Lease. 11. Tenant has not assigned in any way its interest in the Lease or the Premises in whole or in part.. 12. All other terms and conditions of the Lease not in 3 conflict with the terms hereof shall remain in full force and effect. IN WITNESS WHEREOF, intending to be legally bound hereby, the Parties set their hands and seals the day and year first above written. Attest: By: Secretary HAMPDEN CENTER, INC By: Vice President 4 JAPANESE STEAKHOUSE AT HAMPDEN, INC. By: By: e?l - - The Lease Guaranty guarantees the obligations hereunder. Wang Zhan EXHIBIT B HAMPDEN CENTER, INC. 444 Park Avenue South Suite 302 Account: New York, NY 10016 Date: Japanese Steakhouse at Hampden, Inc. Payment: Hi Restaurant 4920 Carlisle Pike Mechanicsburg, PA 17050 Statement hampde - C01 - japanese 02/06/12 Date Description Charges Payments Balance Balance Forward 19,849.94 08/01/11 CAM1 Estimate (08/2011) 2,100.00 21,949.94 08/05/11 chk# 1450 08/11 Rent, CAM 5,400.00 16,549.94 09/01/11 Rent (09/2011) 3,300.00 19,849.94 09/01/11 CAM1 Estimate (09/2011) 2,100.00 21,949.94 09/06/11 chk# 1037 Sept 2011 Rent, CAM 5,400.00 16,549.94 09/06/11 chk# 1715 06/11 CAM, 07/11 CAM (bal) 3,750.00 12,799.94 09/23/11 reimbursement for repairs to 4 HVAC unit 1,703.16 14,503.10 10/01/11 Rent (10/2011) 3,300.00 17,803.10 10/01/11 CAM1 Estimate (10/2011) 2,100.00 19 903.10 10/17/11 chk# 1075 10/11 Rent (partial) 1,700.00 , 18,203.10 11/01/11 Rent (1112011) 3,300.00 21,503.10 11/01/11 CAM1 Estimate (11/2011) 2,100.00 23,603.10 11/09/11 chk# 2579 11/11 Rent, CAM 5,400.00 18,203.10 12/01/11 Rent (12/2011) 3,300.00 21 503.10 12/01/11 CAM1 Estimate (12/2011) 2,100.00 , 23 603.10 01/01/12 Rent (01/2012) 3,300.00 , 26,903.10 01/01/12 CAM1 Estimate (01/2012) 2,100.00 29 003.10 01/16/12 Late Fee 5.0% of amount owed (total) 902.75 , 29 905.85 02/01/12 Rent (02/2012) 3,300.00 , 33 205.85 02/01/12 CAM1 Estimate (02/2012) 2,100.00 , 35,305.85 Current 30 Days 60 Days 90 Days Amount Due 6,302.75 5,400.00 5,400.00 18,203.10 35,305.85 HAMPDEN CENTER, INC. 444 Park Avenue South Suite 302 New York, NY 10016 Date 01/01/11 01/01/11 01/01/11 01/01/11 01/03/11 01/07/11 01/07/11 01/07/11 01/07/11 01/10/11 02/01/11 02/01/11 02/01/11 02/01/11 02/07/11 03/01/11 03/01/11 03/01/11 03/01/11 03/10/11 04101111 04101111 04/01/11 04/01/11 04/04/11 05/01/11 05/01/11 06/01/11 06/01/11 06/30/11 07/01/11 07/01/11 07/06/11 07/18/11 08/01/11 Japanese Steakhouse at Hampden, Inc. Hi Restaurant 4920 Carlisle Pike Mechanicsburg, PA 17050 Description Balance Forward Rent CAM1 Estimate (01/11) Insurance Estimate (01/11) R. E. Tax Estimate (01/11) chk# 1433 01/11 Rent, CAM, Ins, RE Tax Additional 01/11 Rent per Lease Mod Additional 01/11 CAM per Lease Mod Additional 01/11 Insurance per Lease Mod Additional 01/11 R. E. Tax per Lease Mod 2010 CAM Adjustment Rent CAM1 Estimate (02/11) Insurance Estimate (02/11) R.E. Tax Estimate (02/11) chk# 1441 02/11 Rent, CAM, Ins, RE Tax, 2011 CA Rent CAM1 Estimate (03/11) Insurance Estimate (03/11) R.E. Tax Estimate (03/11) chk# 1453 03/11 Rent, CAM, Ins, RE Tax, 2011 CA Rent CAM1 Estimate (04/11) Insurance Estimate (04/11) R. E. Tax Estimate (04/11) bollard removal - asphalt repair Rent CAM1 Estimate (05/11) Rent CAM1 Estimate (06/11) May & June Rent per 2nd Lease Mod Rent CAM1 Estimate (07/11) chk# 2576 05/11 CAM chk# 2577 07/11 Rent, CAM (partial) Rent (08/2011) Statement Account: hampde - C01 - japanese Date: 02/06/12 Payment: Charges Payments Balance 0.00 6,900.00 6,900.00 1,110.87 8,010.87 181.32 8,192.19 640.00 8,832.19 8,832.19 0.00 1,437.50 1,437.50 224.99 1,662.49 36.72 1,699.21 129.62 1,828.83 158.02 1,986.85 8,337.50 10, 324.35 1,335.86 11,660.21 218.05 11,878.26 769.62 12,647.88 10, 700.00 1,947.88 8,337.50 10,285.38 1,335.86 11,621.24 218.05 11,839.29 769.62 12,608.91 10,700.00 1,908.91 8,337.50 10,246.41 1,335.86 11,582.27 218.05 11, 800.32 769.62 12, 569.94 230.00 12,799.94 8,337.50 21,137.44 2,100.00 23,237.44 8,337.50 31,574.94 2,100.00 33,674.94 -16,675.00 16,999.94 3,300.00 20,299.94 2,100.00 22,399.94 2,100.00 20,299.94 3,750.00 16,549.94 3,300.00 19,849.94 CONTINUED EXHIBIT C LAW OFFICES STEPHEN C. NUDEL, PC 219 Pine Street Harrisburg, Pennsylvania 17101 (717) 236-5000 FAX (717) 236-5080 STEPHEN C. NUDEL JOSEPH A. RICCI VIA OVERNIGHT COURIER February 7, 2012 Mr. Zu Wang Zhang c/o Tokyo Diner 5020 Simpson Ferry Road Mechanicsburg, PA 17050 Re: Hampden Centre 4920 Carlisle Pike Mechanicsburg, Pennsylvania Hampden Center, Inc. v Zu Wang Zhang Dear Mr. Zhang: This firm represents Hampden Center, Inc., the Landlord regarding the above referenced Lease, as amended. The tenant remains in default of the terms and conditions of the Agreement of Lease dated March 26, 2010, by and between Hampden Center, Inc. as Landlord and your company as Tenant. As a result of the Tenant's continuing default, this letter constitutes demand under the guaranty for $236,000, which represents past due rent and accelerated rent. This limited amount will increase if the amount is not paid within sixty days from the date of this letter. Note well that nothing prevents the Landlord from pursuing its rights against you prior to the expiration of the sixty day period. In addition, note well that no furniture, fixtures or equipment may be removed from the premises. Nothing in this letter shall be construed as a waiver of any right or remedy available to my client under the Lease or Guaranty, at law or at equity. Very trul o ;T r & Ste en S CN/j lm cc: Mr. David F. Lavipour VERIFICATION I, David F. Lavipour, Vice President for Hampden Center, Inc., being authorized to do so, verify that the statements in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. Date: tray 1 I Z.. HAMPDEN CENTER, INC. By: Vice President HAMPDEN CENTER, INC. Plaintiff V. ZU WANG ZHANG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. )X -- -1 1 Ci': I CIVIL ACTION - LAW CONFESSION OF JUDGMENT FOR MONEY NOTICE OF JUDGMENT BY CONFESSION PURSUANT TO PA.R.C.P. 236 To: Zu Wang Zhang, Defendant You are hereby notified that on ,-9 7 , 2012 the following judgment was entered against you in the above captioned case. Judgment by Confession in the amount $269,4 .85. ova ate Prothonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 I hereby certify that the following is the address of the Defendant: c/o Tokyo Diner, 5020 Simpson Ferry Road, Mechanicsburg, PA 17050 LAW OFFICES STEPHEN C. NUDEL, PC Date: ephen C`.Nudel, Esquire Att ID 41703 Joseph A.ci, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff HAMPDEN CENTER, INC. Plaintiff V. ZU WANG ZHANG, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW CONFESSION OF JUDGMENT FOR MONEY NOTICE OF JUDGMENT BY CONFESSION PURSUANT TO PA.R.C.P. 236 A: Zu Wang Zhang, Defendant Por este medio sea avisado que en el dia de de 2012, un fallo ha sido anotado en contra suy en caso mencionado en el epigrafe. Fecha: el dia de de 2012. Protonotario LLEVE ESTA DEMANDA A UN ABODAGO IMMED IATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SE-RVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Por este medio certifico que to siguiente es la direccion del demandado: c/o Tokyo Diner, 5020 Simpson Ferry Road, Mechanicsburg, PA 17050 LAW OFFICES STEPHEN C. NUDEL, PC ?,•,?2..? -- - , - Date: tephen udel, Esquire e ID 1703 Joseph A. Ricci, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff HAMPDEN CENTER, INC. IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA NO. ) ?„ - I ?-t I/ t N" -; Z ZU WANG ZHANG, CIVIL ACTION - LAW Defendant CONFESSION OF JUDGMENT FOR MONEY CERTIFICATION OF ADDRESS I hereby certify that the following is the address of Plaintiff, Hampden Center, Inc.: 444 Park Avenue South, Suite 302, New York, New York 10016. I hereby certify that the following is the address of Defendant, Zu Wang Zhang: c/o Tokyo Diner, 5020 Simpson Ferry Road, Mechanicsburg, PA 17050. Date: A,/. y//L LAW OFFICES STEPHEN C. NUDEL, PC Kephen C. Ni?del, Esquire Attorney ID #4170.3 Joseplr-A, 4 i, Esquire Attorney ID #49803 219 Pine Street Harrisburg, PA 17101 (717) 236-5000 Attorneys for Plaintiff