HomeMy WebLinkAbout05-0902
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. DS' _ ()6?- n t----r;.,n,-,
-/ Li,,;L IS<J'
CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY
Pursuant to the authority contained in the warrant of attorney, the original or a copy of
which is attached to the complaint filed in this action, I appear for the Defendant and confess
judgment in ejectment in favor of Plaintiff and against Defendant for possession of the real
property described as follows:
The store premises as described in the Lease and Exhibit B thereto, more particularly
described as part of a shopping center known as Capital City Mall, Food Court Kiosk #20.
Dated: February \ C;, 2005
, ~VU\i~~' vV1vJ,1VL~
ttorney for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMTED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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CIVIL DIVISION
No. 0 S - q D-:L C2:,oL"- 19U[
COMPLAINT IN CONFESSION OF
JUDGMENT FOR POSSESSION
OF REAL PROPERTY
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
P A II> No. 43523
Dana L. Munhall
P A II> No. 82583
MARCUS & SHAPIRA, LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. Of; - qD~ C\u LI~
COMPLAINT IN CONFESSION OF JUDGMENT
FOR POSSESSION OF REAL PROPERTY
I. Plaintiff, PR Capital City Limited Partnership, is a Delaware limited partnership,
with an address of clo PREIT Services, LLC, 200 South Broad Street, Third Floor. Philadelphia,
PA 19102. PR Capital City Limited Partnership is the owner of the Capital City Mall in Camp
Hill, Pennsylvania and is the successor in interest to Crown American Capital City Associates,
L.P.
2. Defendant, Cookies Plus, Inc., is a corporation whose last known address is 1104
Fernwood Avenue, Suite 304, Camp Hill, Pennsylvania 17011.
3. The original instrument evidencing the obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defendant which
is a true and correct reproduction ofthe original, is attached hereto and marked as Exhibit I,
and is incorporated herein by reference. The instrument is a Lease dated August 26, 2002 (the
"Lease") between Crown American Capital City Associates, L.P. and Defendant. Defendant is
the Tenant under the Lease, and as noted above, Plaintiff is the Landlord and the successor in
interest to Crown American Capital City Associates, L.P. under the Lease. This confession for
possession of real property is warranted by Section 19.06 of the Lease.
4. Plaintiff avers that judgment on the Lease is not being entered by confession
against a natural person in connection with a residential lease. The underlying Lease of real
property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial transaction.
5. The property at issue is the store premises as described in the Lease and Exhibit B
thereto, more particularly described as part of a shopping center known as Capital City Mall,
Food Court Kiosk #20.
6. Crown American Capital City Associates, L.P. assigned the Lease to Plaintiff.
7. Judgment has not been entered on the Lease in this or any other jurisdiction.
8. Plaintiff avers that the Lease authorizes the entry of Judgment for Possession after
an Event of Default thereon. An Event of Default has occurred under the Lease in that
Defendant failed to make payment of rent and other charges which were due from approximately
January of2004 forward. Plaintiff gave written notice of the failure to pay on, among other
dates, January 11,2005, and more than ten days have passed after Defendant received notice of
its failure to pay without making the missing payments.
WHEREFORE, Plaintiff as authorized by the warrant of attorney contained in the Lease
demands a judgment in ejectment against Defendant for possession of the premises described
herein plus costs and attorneys' fees and brings said Lease to Court to recover said real property.
Respectfully submitted,
Dated: February IS, 2005
t?~\A- L-.{ fJ1NYvlJ(
\Stephen S. Zubrow
Dana L. Munhall
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
Cookies Plu~, lnc.
UNSWORN VERIFICATION UNDER 18 PA.C.S. &4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. g4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative of the
Plaintiff identified in the attached Complaint in Confession of Judgment for Possession of Real
Property and that averments of fact contained in such Complaint are true and correct to the best
of my knowledge, information and belief.
PREIT SERVICES, LLC,
Agent for PR CAPITAL CITY LIMITED PARTNERSHIP
Dated:
~\x"""1 \~
,2005
By:
"
l-d[U'-( "A ,~~~+-
Debra Lambert
Vice President - Legal Services and
Corporate Affairs
.
"DlDllil'l-'uKB or L"'A_"
THIS INDENTURE OF LEASE, made on the #-daY otitt~'i/ , 2002, by CROWN
AMERICAN CAPITAL CITY ASSOCrATES, L. P., a Pennsylvania \lmited partnership, by
CROWN AMERICAN CAPITAL CITY ASSOCrATES (8 whoUy-owned subsidiary of Crown
American Realty Trust), a Delaware business trust, its Sole General Partner, with its
offices located at Pasquerilla Plaza, Johnstown, Pennsylvania 1590 1 (hereinafter called
"Landlord"), and COOKIBS PLUS, IRC., a h~ corpontlo., ilEVEN .HIL!.S,
INGr;
trading as MRS. FIELDS/TCBY,
with an address at 1104 Greenwood Avenue, Suite 304, Camp Hill, Pennsylvania 17011
(hereinafter called "Tenant"),
WITNESSETH:
A. Leased Premises.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
store premises (hereinafter referred to as the "premises", "leased premises" or "demised
premises") outlined in red on the plan attached as Exhibit '8' hereto, now erected or
hereafter to be erected 88 part of a shopping center to be initially known as Capital City
Mall, 3506 Capital City Mall Drive, Camp Hill, Pennsylvania 17011-7003,
(hereinafter referred to as the "Center', 'Shopping Center" or "entire premises" and
initially comprising the area shown in Exhibit "B"), the demiaed premises being
measured and described by the following dimensions which are measured from the
ou taid. building lines of each wall of the demised premises or, in the case of those walls
separating the demised premiaea from other stores in the Shopping Center, from the
center lines of such walls: (Food Court Kiosk #20)
Front: Twelve Feet (121
Depth: EJahtee. reet BlCht Inchea 118' .") Kightees Feet (181
Total Area: Two Baaclft4 Twenty-four 1:324) SqlllU'e J'eet
'!'wo IWRM.El SilRe8R ~1fi) S<t_l"eet
together with the right to the non-exclusive use in common with others entitled to use
same of all such automobile parking areas, driveways, malls, courts, corridors and
footways, loading facilities and other facilities as may be designated by Landlord .from
... time to tim.e as more fully set forth in and subject to the terms and COnditiOnS~ this
Indenture of Lease and the Lease Agreement (hereinafter collectively referred to s the
"Lease'), and to such rules and regulations for the use thereof as may be pre cribed
from time to time by the Landlord.
1
D:\L<pIlLuUdl\AGUE-DOCS\Iad-\.Je-OZIMn Fi,ld- TCBY -CCM (Rn. I).do<
Exhibit I
A.l Storalle Area.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
store premises (hereinafter referred to as the "Storage Area") outlined in blue on the
plan attached as Exhibit "B" hereto, now erected or hereafter to be erected as part of the
Shopping Center,
the Storage Area being measured and described as Room 11850, containing
approximately One Hundred SixtY (160) Square Feet, together with the right to the
non-excluaive use in common with others entitled to use same of all such automobile
parking areas, driveways, malls, courts, corridors and footways, loading facilities and
other facilities as may be designated by Landlord from lime to lime as more fully set
forth in and subject to the terms and conditions of this Indenture of Lease and the
Lease Agreement (hereinafter collectively referred to as the "Lease"), and to such rules
and regulations for the use thereof 8S may be prescribed from time to time by the
Landlord.
Except as otherwise expressly set' forth in this 1ndenture of Lease to the contrary, the
Leased Premises and the Storage Area sha11 hereinafter collectively be referred to as the
premilles, leased premises or demised premises.
B. 1.s:m. IS.. Rld.r)
The term of this Lease shall be for a period of seven (71 years beginning on the
"commencement date" as established by Section 1.01(al of the Lease; provided, however,
Tenant's fixed minimum rental and other charges will coro.mence on the earlier to occur
of: Is) the date upon which the Tenant opens Kiosk #20 for business; or (h) thirty (301
days after Landlord delivers possession of Kiosk 1120 to Tenant, whether Tenant is open
for business Or not.
C. Fixed Minimum Rent.
Tenant shall pay to Landlord a guaranteed annual mmunum nmt f'Fixed
Minimum Rent") as follows: The Fixed Minimum Rent for each of the following periods
during the term of this Lease shall be:
Time Period
Annual Amount
Monthlv Amount
Years 1 - 2
Years 3-4
Years 5 - 7
$41,500.00
. $43,500.00
$45,500.00
$3,458.33
$3,625.00
$3,791.67.
Each such instal1ment shall be due and payable on or before the (lTst day of each
calendar month in the term of this Leaae, In advance, at the office of Landlord or at
such other place as may be designated by Landlord from time to lime, without any prior
demand therefor and without any deduction or setoff whatsoever, the first installment
to be paid on the commencement date whether or not the commencement date is the
first day of a calendar month. In the event that the commencement date of the term of
this Lease ahaIl be a day other than the first day of a calendar month, Tenant's first
payment of Fixed Minimum Rent shall be prorated for the fractional month between the
commencement date and the Iirst clay of the first full calendar month in the term
hereof, on a per diem basis (calculated on a thirty (30) day monthl.~
2
D:IL<pI\LalI.IMGREE-IlOCS\Ind.~\M.. 'letd-TCBV-c<:M (Rev.I).doe
D. PercentA"" Rent.
In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accordance with
Section 2.01 of the Lease, shall pay to Landlord, as additional rent hereunder
(hereinafter reTen-ed to aa "Percentage R.ent"), and as part of the consideration of the
aforesaid demise, for each lease year in the term of this Lease a sum equal to ten
percent (10%1 of that portion of Gross Sales (as defined in Section 2.02 of the LeaSe)
during such Iealle year which is in excess of the applicable Percentage Rent Gross Sales
Base. The Percentage Rent Gross Sales Base for the following periods within each lease
year shall be:
Time Period
PercentaJre Rent Gross Sa1ea Ru,"
Yean I - 2
Yean 3 - 4
Years 5 - 7
$415,000.00
$435,000.00 .
$455,000.00.
.E. Use of Prep:1i.ses. (See lUder)
Subject to the provisions of Article V of the Lease, Tenant shall use the leased.
premises solely for the putp08CS of conducting the bU8iness of: the retail sale of Ml'lI.
Fields' cookies, soft drinks. and TCBY yogurt products, uuI suoll. It_.. U aN
laclu4.. fa the TC8Y staII4ant lllellll, and for no other purpose whatlloever. Tenant
covenants that the Sto~ Area shall only be used forstoragc purposes.
F.Common Area Pavment.
On the flJ'st day of each calendar month. Tenant shall pay to Landlord, in
advance, without demand and without any setoff or deduction, as a minimum payment
on account of Tenant's proportionate share of the Operating Costs (as defmed in Article
VII of the Lease) an amount wlaloll. fOJ' the ftnl: (I") year of tha term of thIlI Le...
ahaI1 be ..aal to ODe TlIouuad J'tve BIIDdred DoIlara ($1,500.00). 8M'" less thaa
BRa "velfth (l/l~tAJ ef tkt p.ell\lGt eBtaiRed 8y Mwtiplyiag the ltIHaFe feet sf fleer aree..
sf ~ aelBilad. Pf '181 &oj tfte _ of llill J;lsll&A sad Ninety Fellr CeRts ($6.941. If the
commencement date hereof shall not be the first day of a calendar month, Tenant's
payment of its proportionate share of Operating Costs {or the fnlctional month between
the commencement date and the first day of the first full calendar month in the term
shall be prorated on a per diem basis (calculated on a thirty (30) day month) and shall
be paid together with the flJ'st payment of Fixed Minimum Rent. JCotwlthatalldlJll
llJl)'tIsiDI OOIltaJDe4 hereill to the COIlUary, llftar the ftnt (1") yeu of the term
hereof, aIlIlaal ill_a ill T__t'a OperatlD.c Coats obUptloll8 ahaI1l1Ot lllOJ'e'"
by mOftl tIwa: (il the CPI ..vU8t....llt .. Nt forth fa Article XV hereof; or (U) five
perceat, ..JlIcheftr fa lower.
G. T,,"Ant's Allowance.
. The Landlord shall not reimburse the Tenant on account of the coat of
construction of the items designated as Tenant's Work in Exhibit "A" attached hereto,
subject to the terms and conditions set forth in said Exhibit. Notwithstanding anything
contained ill Exhibit "A" to the contrary, T~ant is not responsible for the payment of
any Landlord-provided Construction Items or for the payment of any Service Charges.
3
U:IL'IoIILctIlcHlAGREE-DOCSllad-lM-GIMn Fldd-TCRY'(;CM (Rev. I).doe .
.~
H. Securitv Deoosit. - NOT APPLICABLE
I. Tsx Rent.
As an initial estimated payment on account of Tenant's proportionate share of
taXeS as defmed in Article II of the Lease, Tenant shall pay monthly, in advance, as
additional rent, together with each monthly installment of fixed minimum rent. without
demand or setoff, an amount equal to one-twelfth (1/12th) of the product obtained by
multiplying the floor area of the demised premises by the sum of $2.31.
J. Marketinl[ Fund I Advertisiml.
Tenant covenants and agrees to become a member of any Marketing Fund
approved by Landlord. and to maintain such membership throughout the term of this
Lease. Tenant further agrees to pay as its share of the coat of the activities conducted
by such aS8OClatlon wldoh for the Brat (1") year of tIl. urm of thU Le... UaJ1..
equal to "" B1IIIAIn4 DoUan ($500.00), the 81UII. sf '''.3 I pel' )'ll&F fer saM s'l;lilHe
fost sf lieSI' area 9SMalMd. in tho Il_isoll. pI !lI!rsss, subject to CPJ adjustment, as
provided in Article XV of the Lease. ftotwltJtstaJadblc...,.uw.a ooataille4 herelD. to
the -t:nrJ, aftu the ant (1") ,..... of the term henof, aanaallac:naaes Ia
Te__t'. Jlarlretblc Pall. oltUptJoa. .haJ1 aot Iao_ .,. mole thaa: (I) the CPl
a.tl,juatmeat .. ..t folth III AJtjcJe XV hereof; or (U) fbre 1M_at, wblohner b
lower.
Tenant shall also pay to Landlord 8S its contribution to the Advertising Program
for the Shopping Center the sum wllioh for the first 11")Y- of the term of thU
Lease UaJ1 lie equal to Two BlIIUlre4 Fifty DoI1aJa (."$0.00). sf $1.1 c; flsr YI!QF fer
eaeh 8ElY8:l"e rest af ReaT SHe. eaMeinea in the de_eed p'IPJne88. Tenant', Advertising
Program payment and Marketing Fund payment shall be made in monthly insta1lments,
together with payment of Fixed Minimum Rent, and ea.id Advertising Program payment
shall be subject to CPJ adjustment in the same manner as Tenant's Marketing Fund
payment as provided in Article XV of the Lease. Nolwltll.....dhll -ytlalDa ooataille4
here" to tile coaUaiy, alter the fInIt (1") year olth. term hereof. ...uallaore....
III Tuaat', A4ftnblDc Propua ollUptJoaa UaJ1110t ~ by __ tbaa: (i)
tIl. CPl alijaatmeat .. ..t forth III ArtIcle XV benof; or (H) five pelO'At, wblohever
blower.
K. ProDOrtionate Coat of Security.
In the event Landlord elects to provide security for the Shopping Center. Tenant
shall pay _ amoaat wbloh for the ftrat (l")y_ of the term of thU Lea.. .haJ1 be
equal to Two Hua4s'e4 FII't7 J)oI1aJa ($250.00). monthly, in advance, as additional
rent, together with each monthly installment of Fixed Minimum Rent, without demand
or setoff. !rotwithataD4.... aaythlJll co..taiDed herelll to the coatruy. altar tile Brat
(1") ,..... of the term ureof. .....ual IDcreaaea III T....t.. Coat of 8acurity
ob.lIptJo... ahaIl ..ot iaoraase 11,. IIIOre tbaa: (I) the CPl alijaatm...t .. set forth III
Article XV h_of; or (11) BYe perceat, wl1lehever Ie lower.
4
D:\LcpJ\LaIldllAGllEE-DOCS\Iad-lM.oJIMn Fltld- Tcay-CCM (Rev. I).do<
aR _SliM IlIIlal te SR.I tweJfth fl/~tR.) sf ihe )ueEktet BliitaiRed By ~,lyiRB tlte lIeer
Brea setBe ...miRed }lfel&iBe8 By tRe lHB8Wlt af $,1.19,
L. Landlo.o. and Tenant agree that Tenant shall not be required to pay AAY
Fixed Minimum Rent or additional rent for the Storage Area, provided that Tenant shall
pay the Utilit;y Charge, as defined in Section 12.04 of this Lease Agreement, for the
Storage Area.
M. Lease Documents.
In addition to the Indenture of Lease and the Lease Agreement, the following are
attached to the Lease and are hereby incorporated in and made part o{ the Lease as
fully as though set forth at Iength in the Lease; Rider, I{ any, Exhibit "A', Exhibit 'B',
and Exhibit 'C'.
(8lIaatur.. appear on the IoI1cnrfDa "'-.1
D:ILopIlL<tlIelllAGRU-DOCSII.d_lM-02lMn I1cJd..TCBl'-CCM (R...l~do.
5
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Lease to be duly executed the day and year first above written.
(Co~te Seall
CRon AIO!IItlCAK CAPITAL CITY
A88OCIA.ft8, L. P., A I'lC1In.\-...VAlQA
LIIIlTBD PA)dKltUlUP, BY: CROW1I
......,ftICAIl' CAPlTAL CITY
A88OClAft8(A WBOLLY..()Wluw
8U881DIARY 01' CROW1I AlRRICAIf
R&ALTY TRU8'I:') A DItLAWARB
BU8D1B118 TRV8T, rrs SOLS GUERAL
PAKIDJIIK.
Anwr:k~
Rou1c1 P. ....aa..
8eontuy
By:
(CoI'porate SealI
cootnVA PLUS, mc.,
~ aft '8. JIIf:..
TJA JIR8.I'JBLD8/TCBY
r.
ATTar: ~~ t ; /101 L
Seoretuy
By:
Q jo.r...>J Preatdent
D:\L...IlLalIoHIAGIlEE-OOCSII.....Lo..m\Mt1 Fleld- TCBY -CCM (Rev. I).d.,
6
RlDBR
1. Tefta..f'. 'Riot of .....""'...lIltloD.
(a) Tenant may, at its option, elect to terminate this Lease on the last day of the third
month of the third (3"') full year of the Le.... term (hereinafter referred to as the 'Termination
Date') if end only if Tenant's Ora.. Sales as defined in Section 2.02 hereof, do not reach or
exceed the sum of Two Hundred Twenty-five Thousand Dollars ($225,000.00) during the second
(2"") full I..... year of the term of this Lease. .
(b) Tenant shall notify Lancllord in writing of Tenant's election to terminate this Lea.. no
later than sixty (6<l) days after the end of the ee<:ond (2"") full I..... year in the term of this Lease.
To be effective, such notice shaU be ..ccompanied. by a certified check, payable to Landlord, in en
amount equal to the total of all sums due Landlord under the Le.... (including, without
limitation, Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant's Proportion..te Share of
Operating Coats, the Utility Charge, Marketing Fundi Advertising paymenta and Tenant's
Proportionate Share of Security through the Termination Date.
(c) Tenant's election to terminate the Lea.., as aforesaid, shall be effective only if the
election is made during the respective time period herein proYided, with time being of the eseence,
and if Tenant Is not in default of its obligations under the Lea.. either on the date notice of
termination is given or on the Termination Date.
(<I) In the event that Oross Salea exceed the aforementioned threshold during said
second (2") fullleaee year, or if Ora.. Salce do not exceed said amount and Tenant elects not to
give notice. or fails to give notice, .then in either event, this right of termination shalllapae and be
of no further force or effect.
2. Raatr1ftto1ft.. ofLe..rn..
After the commencement of the term of this Lease, Landlord shall not lease space in the
Shopping Center to any tenant (other than Tenant hereunder) whose prtm...,. aM Ie tile eaIe of
101U1'tt fce onam, tlaYONid lee or cooklea prinsi,aI NIHU.. if8 thl wale sf Yf.iIUFC (the .Other
Tenant"). In the event Landlord violates the provisions of this paragraph, Tenant's sole and
exclusive remedy shall be a fifty percent (50%) reduction in Fixed Minimum Rent payabte
hereunder effective upon the opening for business in the Shopping Center by the Other Tenant
("Rent Reduction').
Tenant's right to the Rent Reduction shall continue unW the earlier to occur of:
(!) the expiration or earlier termination of the Other Tenant's leaSe term; or
(ii) Tenant is in default of any of its obligations under this Lease beyond any applicable
CUre period.
In no event shall the provisions of this paragraph apply to:
(i) Any pre..nt or future department store within the Shopping Center; or
D:\LqAI\LaUeHlAGIlEE-IlO(:SIIIld-IM-8Z\Mn F1dd-TCBV-CCM (Rev. l~""
(ji) Any tenant or occupant existing as of the date of this ~..... that is permitted under its leaae .
to sell yogurt, fee --. 1Ia9Of!Hl fee or 000..... ita or their respective successora.
replacements and usilns; or
(iii) Any tenant. occupant or owner of any outparcel or peripheral parcel of the Shopping Center.
The rights conferred to Tenant by this proviaion are _nat to Tenant and wlll be null, void
and of no effect to any aaslgnee or subtenant, whether voluntarily or by operation of law.
Tenant ahall indemnuy and bold Landlord harmless from any and all claims that may be
brought against Landlord arising out of the exclusive righta granted to Tenant herein.
D:\LepIIL..llcll\AGREE-POCSllad......OO2\M.. F1dd-TCBV-CCM (ROY. I).d..,
TABLB OF COdUl"U
ARTICLE I ..................._............................................................_.............._......60................-...........-.... 1
TERM.......................................................................................................................................1
SECTION 1.01.. Commencing of the Term. ........................................................................... I
ARTICLE 0._........................60.........._.................................................................-......................_._....1
RENT ............. ................... ................... ......................................_............ .... ..:.................. ....... 1
SECTION 2.01. percent..... Rlont....................... ................................................................... 1
SECTION 2.02. Groaa Sl1Ics Dcfincd.................................................................................... 2
SECTION 2.03. Perecl'ta... Rlont Statements. .........:............................................................ 3
SECTION 2.04. I!l!u......................:........................................... ........ ................... ............. 4
SECTION 2.05. Additional Rent...........................................................................................6
ARTICLE In ........................................__..........._.................................................................................... Ii
BOOKS OF ACCOUNT AND AUDIT ......................... ................. ................................:... ............. 6
SECTION 3.01. Tenant's Records. ....................................................................................... I)
SECTION 3.02. AlIllli.................................................................. ........................................ 6
ARTICLE IV ......_...................................................................................................................................... 7
CONSTRUC110N OF LEASED PREMISES ................................................................................ 7
SECTION 4.01. Conotruetion bv Landlord........................................................................... 7
SECTION 4.02. Tenanh ImDrovements and Fixturco. ......................................................... 7
SECTION 4.03. Financlna:. .................................................................................................7
SECTION 4.04. ExCUllC of Performance. ..............................................................................7
ARTICLE V ....................................._..............................._........................................................................8
CONDUCT OF BUSINESS ...... ..................... ............. ................................ .... ............................ 8
SECTION 5.01. U...of Pr=lises. .........................................................................................8
SECTION 5.02. SlD...u.e. ........ ........... ....................... ....... .'. .................. ......... ...... ...... ........... 8
SECTION 5.03. Additionol UK of the PremiIlC.....................................................................9
SEC110N 5.04. Rule. and Rlol!l1lation.. .............................................................................10
ARTICLE VI .............................._............................................................................................................. 10 .
GRANT OF CONCESSIONS .................................. .................................... ",. ............. ...... ....... 10
SECTION 6.01. Condition. to Grant..................................................................................10
ARTICLE vu........................wo......................................................................................................~................. 11
COMMON AREAS... ....................................................................................... ......................... 11
SECTION 7.01. Definition' Control. ........................................................... ........................ 11
SEC'l'tON 7.02. ParlrirtlCt 1I'.rlHtie.. ............................................................. ......~..~.............. 11
SECTION 7.03; Roof. WAlIA. Chan... and Addition. to Center........................................... t2
SECnON 7.04. ~iaht to Relocate. .........................................~........................................... 12
SECTION 7.05. h____*................... .................................................... ...............;........... 12
SECTION 7.06. Common Area Pavment. ........................................................................... 13
SECTION 7.07. Prooortionate Cost ofSecuritv. ................................................................. 14
ARTICLE Vln ......................._................................................................................................................. 14
SIGNS; AWNINGS; CANOPIES; FlXI'URES; ALTERATIONS ..................................................... t4
SECT'ION 8.01. Sia:n.8. Awnina and Canoniea. .............,.................................................... 14
SECTION 8.02. ProllCrtv in Demised Premi....................................................................... 15
SECTION 8.03. ImDfDVCment8 and Alteration.. ................................................................. 16
ARTICLE IX .............................................................................................................................................. 16
MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES...................................... 16
;
D:\LqaN..ea.. _1aIMn. '1<hl'..TCBV (CCM).docIMn. J1ItIdI- TCBV (CCM)
SECTION 9.01. Re1lllira and Maintenance bv Tenant......................................................... 16
SECTION 9.02. Stroctural Re1lllira. ................. ................. ................... ........................ ...... 17
SECTION 9.03. Surrender of Premioe.. ........... .................................................................. 17
All.T1CLE X ....................................................................................,........_..............................................., 18
INDEMNIFICATION; SUBROGATION........................ .... ........... ............................................... 18
SECTION 10.01. Indemnilka.tion and WaiveroCC...inL..................................................... 18
ARTICLE XI ................................................,..........................................,........................................_.......19
INSURANCE ......................................... .................................. .......................................... ..... 19
SECTION 11.01. Insurance. ............. ........ .... '."'. ................................... ................... ......... 19
SECTION 11.02. Insura.nce Provision.. ...............................,............................................. 19
SECTION 11.03. meet on Insurance........ ........................................... ..................... ......... 19
All.T1CLE Xll....._.................._........................................_............._.....................................................20
UTILITIES .............. ........ ....... ......... ........ ....... ............... .............................. ............ .... ........... 20
SECTION 12.01. Utilities. ................... ................. ................. ... ..................,....................... 20
SECI10N 12.02. AftI'\li,..non For Utilities. .........................................................................21
SECTION 12.03. Otler.tion of HeatinJr and Air-Condi1ioninR.............................................. 21
SECTION 12.04. Uti1il,V Char... DerlIled.............................................................................21
ARTICLE XID ..........................._..............................._................................._.........................................21
ESTOPPEL CERTIFICATE; SUBORDINATION; ATI'ORNMENT ........................................... ...... 21
SECTION 13.01. F.rN>I,tion ofEatoDllel Certil'u:ate. ...........................................................21
SECTION 13.02. Failure to Ellecute EatoDDeI Certiru:ate.................................................... 21
SECTION 13.03. Subordination .n~ Attornment. ...............................................:.............. 21
ARTICLE XIV ..........._.......................................................0&..............................1.........._..........................._.12
ASSIGNMENT AND SUBLETI'lNG ................................. .............. ........................................... 22
SECTION 14.01. AIIAi...""'nt and Subletting..................................................................... 22
SECTION 14.02. AOf'lv.At1nn to ARA1at'\ or Sublet. .............................................................. 23
SECTION 14.03. Cqov of A...icmment or Subl~A8e. ............................................................ 23
All.TICLE XV ............................................................................................................_.............................. 14
MERCHANTS' ASSOCIATION; PROMOTION FUND; ADVERTISING ......................................... 24
SECTION 15.01. Merchants' A.sociation. Promotion Fund and Advertising. ..................... 24
ARTICLE XVI......_...................................................................................................................................25
DESTRUCTION OF LEASED PREMISES ....., ..................................................... ..... ................. 25
SECTION 16.01. Total or Partial De.truction..................................................................... 25
SECTION 16.02. Parti.r De.troction oC ShODDing Center. .................................................. 26
All.TICLE XVII ................................._...................................................................................................... 26
EMINENT DOMAIN ...................... ................. ................................. .......... ........................... ... 26
SECTION 17.01. Total Condemnation. ..... ................................... ................... .......... ... ...... 26
SECTION 17.02.. Partial Condemnstion. ............................................................................ 26
SECTION 17.03. Partial Condemnation of ShODDin" Center............................................... 27
SECTION 17.04. I.andlord'. DAmA....... ..............................................................................27
SECTION 17.05. Tenant'. DamAge.. .................................................................................27
ARTICLE XVDI..............._........................................................................................................................27
BANKRUPrCY OR INSOLVENCY ................... :...... .......... ............... ..................... ......... ........... 27
SECTION 18.01. BankruDtcv or Insolvencv. ...................................................................... 27
All.T1CLE XIX.....................................................................,...................................................................... 28
EVENTS OF DEFAULT; LANDLORD'S REMEDIES .................................................................. 28
. SECTION 19.01. Event. oCDefa.ult. ................................................................................... 28
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D'\Lecal\Leu. BacIk.IMn. Field'.. TCBY (CCM).dotlM.... Fl...... TCBy'(CCM)
SECTION 19.02. Deliberate Events of Default......................................................... ...........29
SECTION 19.03. Termination. .................................... ........................................................ 29
SECTION ]9.04. Ri.ht of Pa_.sian. ................................................................................29
SECTION ]9.05. Additional R<>m....H~. ofLandlord.............................................._............. 30
SEC'I'JON 19.06. Confe~.~'" olJudcr1'nl!'!nt. ..........................................0............,...............31
SECTION 19.07. Waivers. ................................................................................................. 3t
ARTICLE XX ...........................................................................................................................................32
MISCELLANEOUS_......................... ................................................................................. ...... 32
SECTION 20.0]. Acee.. bv Landlord...............................,.................................................32
SECTION 20.02. Holdin, Over. .........................................................................................32
SEC1'JON 20.03. SUi!t"~a.oN...............,. ......,....... .... ....... ....................... ............................ 32.
SECTION 20.04. OUiet Eniovmenl..................................................................... ............... 33
SECTION 20.05. !lIll!m:. ...................................................................................................33
SECTION 20.06. Cu.tom and U........ ................................................................................33
SECTION 20.07. A....nM and Satisfaction, ......................................................................... 33
SECTION 20.08. Porlnmumce of Tenant'. Covenants. ....................................................... 33
SECTION 20.09. Entire AlIreement................ ................... ......,.......................................... 34
SECTION 20.]0. No Partnenshio. ......................................................................................34
SECTION 20.11. ~. ..................................................................................................34
SECTION 20.12. Caotiona and Index.................................................................................34
SECTION 20.13. Tenant Defined: U"" of Pronoun. ........................................................... 35
SECTION 20.14. Nea.tion ofPenonal Liabilitv.................................................................. 35
SECTION 20.15. Effect oennv..,l"I"Inu!ntaJ Limitation on Rp.nta and Other Chaf1le8, ............. 35
SECTION 20.16. Partial InvaliditY: Seoarate Covenant.....mm........................................... 36
SECTION 20.17. RecordiDJr:. ..............................................................................................36
SECTION 20.111. Brolceramo! Commlsalon. ................m....................................................... 36
SECTION 20.19. Conotiurlinn. ......................................................... ................................ 36
SECTION 20.20. Pel'Detuitv. .............................................................. .............. ..... ... .......... 36
SECTION 20.21. Choice of Law. ........................................................................................36
SECTION 20.22. Joint Pnmaration. .................................................. .................... .... ......... 36
SECTION 20.23. Interlineation...................... ............................... ..... ........................... ..... 36
SECTION 20.24. SubmJealon of Leaae to Tenant. .............................................................. 36
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D:ILtpIlL.... BodIuIMrL .ltJd'.. TCBY (CCM).dO<lllfn. Fldd.. TCBY (CCllI)
LBA811\ AG.............
ARTICLE I
TBRII
SECTION 1.01. CoInm""cln... of the Term.
(Il) The 'oriainsJ term" of this Lease (hereafter defmed) and Tenant's obligation to pay
rent and occupy the demised premises in accordance with the terms hereof shall commence on
the earlier of the foUDwing dates (such earlier date being herein called the 'commencement date'):
(I) on the date set forth in Section 'B' of the Indenture of Lease or (2) the date on which Tenant
shall first open the demised premises for business.
(hI At any time al'ter the commencement date of the term of the Lease the parties
shall ClleCUte and deliver to each other, at the option of Landlord, either an instrument in
..o:oroable fann or a letter agreement prepared by Lancllord, wherein Tenant shall; Il) certify that
the Lease is in fun force and effect and (2) certiJY the commencement and termination dates of the
orqpnal term of this Lease.
(c) This Lease and the tenancy hereby created shall ceaae and determine at the end
of the term hereof without the necesaity of any notice from either Landlord or Tenant to terminate
the same, and Tenant hereby waives notice to vacate the premises and agrees that Lancllord shall
be entitled to the benefit of all provisioIUJ of law respecting the aummary recovery of poaec88ion of
premises from a tenant holding over to the same extent as if statutory notice had been given.
(dl The period commencing on the date hereof and terminating on the date
immediately prior to the commencement date is hereby referred to as the 'initial term', and the
period from the commencement date to the date of the expiration or earlier termination of this
Lease shall be referred to herein as the 'original term". For the purposes of this Lease the words
"the term of this Lease' and "term hereof' shall be deemed to mean the initial term and the
orqpnal term of this Lease and an extensions or renewals. thereof.
ARTICLB D
REIff
SECTION 2.01. PercentaRe Rent.
(0.1 The Percentage Rent shall be payable without prior demand and without any
setoff or deduction whatsoever at the times set forth hereinafter at the place then fIXed for the
payment of Fixed Minimum Rent.
Ib) Not later than thirty (30) days after the expiration of the fu-.t "lease year"
(hereinafter defmed) of the term hereof and, unless Lancllord exercises its option as set forth in
the next sentence hereof, thereaft.er not later than thirty (30) cIllys after the expiration of each
. subsequent lease year in the term hereof, Tenant shall pay to LancllDrd the Percentage Rent due
for the lease year in question. In the event that Percentage Rent shaI1 be payable for any lease
year in the term hereof, after the expiration of the first leasc year containing twelve (12) complete
calendar months, Landlord, at Landlord's option to be exen::ised by written notice to Tenant, may
require Tenant to pay, sa additional rent, together with each monthly installmcnt of Fixed
Minimum Rent due hereunder commencing with the fIrSt such payment due immediately after
the receipt by Tenant of such notice an amount equal to one-twelfth (11 12th) of eighty percent
(80%) of the Percentage Rent payable for the immediately prececllng lease year. Thereafter,
Tenant shall continue to pay such estimated payments of Percentage Rent together with each
monthly installment of Fixed Minimum Rent due for each calendar month in the tenn hereof;
provided, however, that the amount of such estimated monthly plIj'Dlents of Percentage Rent
may, at Landlord'. option, be adjusted at the expiration of each subeequent lease year after
receipt by Landlord of Tenant's statement referred to in Section 2.03(b] to an amount equal to
one-twelfth (II 12th) of eighty percent (80%,) of the Percentage Rent payable for the lease year
immediately preceding such adjustment and commencing with the payment of Fixed Minimum
Rent due immediately after receipt by Tenant of notice of such adjustment. Tenant shall continue
to pay such aclju.ted amount until the next adjustment. Although estimated Percentage Rent
shall be payable monthly as aforesaid, the final computation and payment shall be on an annual
basls.
I
D:\L<pIILtl.. -.oIMn. Fidd'..TCBY (CClII}.doclMn. Field.. TCBY (CCM)
(c) Whenever used In this Lea.e the word. "lease year" shall mean the twelve (12)
fuU calet\dar montha of the term commencing with the Iirat day of the term of this Lea.e, provided
the commencemenl of the term of thi. Lease is on the r""t day of the m!>llth or. if the term of this
Lease commences on any day other than the Iiral day of the month, then with the Iirat day of the
m!>llth immediately following the commencement date and each succeeding twelve (12) month
period. In the event that the finot or la.t lease year shall consist of Ie... than twelve (12) full
calendar months, the Percentage Rent Gross Sales Base for such shorter Ieaae year shall be
deemed to be that portion of such Sa1es Base obtained by multiplying the applicable Percentage
Rent Gro.s Sale. Base set forth in the Indenture of Lease by a fraction, the numerator of which
shall be the number of days contained in such shorter lea... year and the denominator of which
shall be three hundred sixty-five (3651. In the event the amount of the Percentage Rent Gras.
Sales Base ..,t forth herein is subject to adjustments during the term of this Lease, .and the date
on which such a<ijustment is to occur (hereinafter referred to as the 'Rental Adjustment Date") is
other than the r""t day. of a lease year, the Percentage Rent Gro... Sales Base for the luse year in
which the Rental Adju.tment Date shall faU shaD be the sum, of: (a) the lesser Percentage Renl
G_. Sales Base set forth in the Indenture of Lease multiplied by a fra.etion, the numerator of
which shall be the number of days in the period commencing on the r""l day of the lease year in
which the Rental Adjustment Date shall fall and ending on the. day immediately prior to the
Rental Adju.tment Date and the denominstor of which shall be three hundred sixty-five (365),
plus (b) the greater Percentage Rent Gross Sales Base set forth in the Indenture of Lease
multiplied by a fraction, the numerator of which shall be the number of days in the periOd
commencing on the Rental Adjustment Date and ending on the lasl day of the lease year in which
the Rental Ac\iustment Date shall fall and the denominatpr of which shall be three hundred sixty-
five (365).
(4) It is .,nl8~~ \1I1I1818\8B" eEl agreed that bandl&Fd dt188 Rat ,_eider the FiNed
MiBimum. A.IRt in :''--If B fair and adell"'. I'eR-'- fer the .dMRi.... '(11*818 and i..8\1W flst )uwe
entered inte tl:lie tease u.ml!llB TeR&Rt h.afl e8ligBted itself te par Per.......fl8f Real whisk LIlRdleFd
8HfJ8e~8 t.s auppleRleRti tke FiNed Uin.iMu. Real tis ,ra Jid. &UBh €aiF ana adeIfU&te F8~ Fltum.
'Al'Fllere. it. ,m eMIR 9f at Inn .,. ~) 8f tille fiRM. lbr.. (i) full 111l8. year. iR the tlfIB haresf,
T.....&I1t shall Bet have JUla 811..d te pay p!UtIR"-S' RMt iB the ameuRt aB Bet in the
IndeJlHw'e sf 1.11111. .......d.leAlmay. at ite 8p.611_. ~1) teRRiRaM Uni. lTlln \I'M WFHteR RBase 18
T-8Rut p.n at any tilln tvithiR BiN (fiJ MSRtfta .cteF the Iea~t Ss-l.andlerd sfT-eaant'e B:RewU
eta_meRt se ~FBIMI €al.. far IN.. lhifd N1l1eaee year. (a" if' 8UU", tAli due aiay lhenasl} aR4
!hie l.ualJw eheII teARmate and &al ftliY. and -lsid aiJHy (5OJ .aYI alt" .eliYefy sf NeB RBBee; er (:;I)
(hSARSe tfte PeNBS" IF Rent Cpe.. ialn Sase Bit iarth iI\ e_.en c1)" BE 1:Re lRsenwf8 Be waS8
1;e 9.ft BJIlellRt ellt.l&:l te the Qf88B galea F8p9fl:8.!l IJy T8IUI:Dt at the Iftll af die ]ea8e year
imBt.di&t~. ,..UKlIing the lIIAY ss ".:Blsh 1aR4ler4 .akle the el8BBe.R a.Nsller. T-eRaRt shall
, tAeM8f't.eJo pa}' te l..alulJsRi Pet_es1age Rem in IHUBB sf the Ei!8f'I~n. POfl.Rtaae RH.t QF888
ial.e BaRg fer saek 1Ia8. 3 ear .\lARa *1 Nmainau ef \h.e aPlll g{ thie teM' ~ElhilHng the 118.Be
year Il...Fing v-tltie1t the Pen'R1qtT RaRt QreBe EallS &8.8. hR.. heeR a'BRans),. and eaeh "brut
).&1' tftuealu,.
SEcnON 2.02. Gross Sales Permed.
.' tal The words "Gross Sales" as used herein shall mean the grass amount of all sales
of all goods, wares and merchandise sold and all services performed by Tenant and/or by any
subtenant, licensee or concesaionaire in, at or from the demised premises (including, but not
limited to, catalogue sales made at or from the demised premises), whether for cash, credit or
other consideration, with such other consideration being determined at fair market value and
financing charges on all Grosa Sales (without reserve or deduction for inability or failure tp
collectl including, but not limited to, such sale. and services (1) as a result of transs.ctions
originating in, at or from the demieed premises, whether delivery or performance is made from the
demised premises or from 80me other place; (2) pursuant to mail, teJephone, t.eJegraph, c1osed:rv
Circuit, Dial-A-Buy, electronic, video, computer, or other technology-based systems and other
devices, automated or otherwise, whether existing now or developed in the future whereby orders
are received at or supplied from the demised premises or (3) which Tenant or any subtenant,
licensee or conce8sionaire. in the normal course of its business would attribute to ita operations at
the demised premI..s. Gross Sales also include all deposits not refunded to purchasers. Each
sale upon installment or credit shall be treated aSc a sale for the full price in the month during
which such sale shall be made, irrespective of the ti~~ when Tenant shall receive payment
2
D:\Lqal\Lc... BodIa\Mn. Field'.. TCBY (CCM).doelMn. Fklds- TCBY (CClll)
therefor.
(h) The following sltalL be dedueted from 0r08II Sales if originally included therein, or
excluded therefrom, as the caee may be, provided eeparate records sre supplied supporting sucl1
deductions or exclusions, namely: (II any ex<:hmge of men:handiee between stores of Tenant
where sucl1 exchange is made eoIely for the convenient operation of Tenanrs busine.. and not for
the purpoae of consummating a sale made in, at or from the demioed premises, (2) returns to
shippers or manufacturers, (3) cash or credit refunds to eustomers on transactions otherwise
included in Oro.. Sales, (4) saIea of fixtures, maehinery and equipment after use thereof in the
conduct of Tenant'. business in the demised premises, (51 amounts collected and paid out by
Tenant for any sales tax impoeed by any duly constituted governmental authority provided sucl1
tax is both added to the selling price all a separate and distinct amount in addition to the regular
price of Tenant's merchmdiee and paid to the taxing authority by Tenmt (but not by any vendor
of Tenant), (6) the amount of any diacount on sales to employee., and (7) receipts from the
permitted pay telephone and vending machine. referred to in Section 5.03(Tj. No value-added tax,
and no fnutcl1ise or capital stock tax and no income, gross receipts or Bimilar tax bued upon
income, profits or gro88 receipts aa such shall be deducted from Oro.. SaIca.
SECTION 2.03. PCn:entslle Rent Statements.
la) No later than the thirtieth (30thl day after the end of eaeh calendar month in the
term hereof, Tenant shall submit to Landlord an itemi.ze<l and aceut1lte written statement signed
by Tenant, its duly authorized officer or duly authorized representative, rel\ecting the fun amount
of Grose Sal... made during the preceding calendar month. If the commencement date hereof
.hall not be the firet day of a calendar month, the period between the commencement date and
the first day of the fll'St full calendar month in the term and Tenant'. Oross Sales during such
period shall be added to the fir.t calendar month for both the purpoee of the computation of
Percentage Rent and the purpose of reporting of Oross Sales.
11>) Not later than the date set forth in Section 2.01(bl hereof, Tenant shall submit to
Landlord a eomplete written statement of Tenant's Gros. Sales for.the preceding lease year in
.ucl1 reasonable detail as requested by Landlord, certified by Tenant, its duly authorlzed officer or
representative, accomplU1ied by a certified statement signed by Tenant's regularly engaged
independent public accountant stating that the Grose Sslea reported by Tenant ate in accord with
the amount thereof set forth on Tenant's regularly maintained book. md record..
Simultaneoualy with the delivery of the statement referred to in the preceding sentence, Tenant
shall pay to Landlord the fun unpaid balance of the Percentage Rent due and payable for such
lea.ae year, if my. In the event Tenant is making estimated paymenlll of Percentage Rent and
Tenant is not then in default hereunder or otherwise indebted to Landlord, any exeeas of
estimated Percentage Rent that Tenant may have paid for such leaac year over the Pen:entage
Rent actually due for .uch lease year shall be refunded to Tenant within thirty (301 daY";
provided, if such overpayment is.!or the last lease yeu, Landlord sheJl not be obligated to refund
to Tenant the SItlount of sueh overpayment until Tenant has fully performed all of illl obligations
under the Leaae, is not indebted to Landlord and haa vaeated the demised premiae& in
accordance with the provisions of thi. Lease. In the event Tenant is indebted 10 Landlord for sny
reason whatsoever, Landlord ~ deduct such amount owed from such overpeyment.
(c) The acceptance by Landlord of payments of Percentage Rent or rcportlil thereof
shall be without prejudice, and ahallin no event constitute a waiver of Landlord's rights to claim
a deficiency of sucl1 Percentage Rent or to audit Tenant's books and records all set forth in
Section 3,01 hereof.
(dJ If Tenant shall fail to deliver sucl1 .tatement as required by Section 2,03(b),
within the period set forth therein and such failure shall continue for ten (10) daY" after the date
of written notice of .uch failure from Landlord, Landlord shall have the right thereafter to employ
a certified public accountant to make sucl1 examination of Tenant's books and records aa may be
necessary to certiJY the amount of Tenant's Oross Sales for said lease year, the certification 80
made shall be binding upon Tenant. and Tenant shan promptly pay to Landlord the cost of the
examination, together with the full balance of Percentage Rent due and payable for said lease
year. In addition, Landlord may treat the failure to deliver such statements within ten (10) dsY"
after the aforesaid notice as a Deliberate Event of Default.
Ie) Tenant'. obligations under this Section '2.03 shall .urvive the expiration or
earlier termination of this Lease. .
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D:ILopllL_lIOOl<IIM... Field'" TCBY (CCM).do<lMr.. Fkld.. TCBY (CCM)
SECI'lON 2.04. IwI.
(ll} For the purpoees of this Section 2.04, the word "taxes" shall include all taxes
attributable to improvementa now Ill' hereafter made to the Shoppina Center or any part thereof
or attributable to the pt<O&ent Ill' future installation in the Shopping Center or any part thereof of
fllttUres, machineI)' or equipment. all real estate taxes. asse..ments. roll-back taXe8 or
as""ssments, water and sewer rents and other governmental impositions and charges of evel)'
kind and nature whatsoever. nonrecumng as well as recuning, special or extraordinary as well
as ordinaly. foreseen and unforeaeen, and each and every instaUment thereof, which shall or may
during the term of this Lease be levied. ...seased or imposed, or become due and payable or
become liens upon, or arise in connection with the use. occupancy or poaseaaion of, or any
interest in, the Shopping Center or any part thereof, Or any land, buildings or other
. improvements therein and all <Xlsts and fees incurred by Landlord in contesting andlor
negotiating said taxes, Ie.. all amounts paid as taxes to Landlord by the occupants of any
"Separately Asseaaed Premises' (sa defined in Section 2.04(d) hereof). The word 'taxes" shall not
include any charge, such as water meter charg& and ""wer rent based thereon, which is
measured by the consumption by the actual user of the item or service for which the charge is
made.
(b) Fill' each "I'ax Year' (as defined in Section 2,04(e) hereof) during the term of this
Lease, Tenant shall pay to Landlord sa additional rent (hereinafter called "Till< Rent"), the amount
obtained by multiplying the total of all taxea payable during such Tax Year by a fraction. the
numerator of which shall be the square feet of floor area of the demised premises and the
denominator of which shall be the square feet of all 'leasable floor area' (aa defined in Section
2.04(d) hereof) in the Shopping Center computed all of each date Landlord has a right under
Section 2.04(c) to bill Tenant for an installment of Tax Rent. On account of Tax Rent. Tenant
shall pay monthly, in advance, as additional rent, together with each monthly installment of
Filled Minimum Rent, without demand or setoff. the amount ""t forth in Section "I' of the
Indenture of Lease. Such amount may be adjusted by Landlord at any time during the term
hereof to an amount equal to one-twelfth (1/121 of the Tax Rent payable by Tenant for the
precedinll TIIX Year, If Tenant's payment on account of Tax Rent for any Tax Year exceeds the
actual amount payable by Tenant as Tax Rent for such Tax Year and Tenant is not in default
hereund... or otherwise indebted to Landlord, Landlord shall credit such excess to Tenant's future
tax obligs.tions; provided. if such overpayment is for the last Tax Year. Landlord shall not be
obligated to refund to Tenant the amount of such overpayment until Tenant has fully perionned
all of ita obligations under this Lease. is not indebted to Landlord and haa vacated the demised
premiees in accordance with the provisions hereof. In the event Tenant is indebted to Landlord
for any re&llOn whatsoever. Landlord may deduct such amount owed from such overpayment.
(cl Landlord shall have the right to bill Tenant for Tax Rent during each Tax Year
after each receipt by Landlord 01 s bill. aasesament. levy, notice of imposition or other evidence of
taxes due or payable all of which are hereinafter collectively ref CITed to as a "tax bill' (whether .
such bill is a final bill, an estimate of annual taxes or represents a tax bill based upon a fmal or
partiaJ _ment or determination). Tenant shall pay the balance of Its Tax Rent within thirty
(30) days of receipt Irom Landlord of a written statement ""tting forth the taxea for which
Landlord has received a tax bill. Tenant's share of laX.... and Tenant's payments theretofore made
on account of Tax Rent. In making the computations as aforesaid. a tax bill or photocopy thereof
submitted by Landlord to Tenant shall be conclusive evidence 01 the amount of the taxes included
in the computation of the Tax Rent in question; provided, however, Landlord shan have the right
to bill Tenant for Tenant',,_ share of the Tax Rent for the last lease year in the tenn hereof wheth...
or not Landlord shall theretofore have received a tax bill covering the period from the date of the
tax bill which lonned the basia of the most recent installment on account of Tax Rent billed to
Tenant to the expiration of the term hereof. If Landlord has not .received s tax bill for such
period, Land10rd shall estimate the amount of such laat instaUment of Tax Rent on the basis 01
infonnation contained in the tax bill most recently received by Landlord. subject to adjustment
when Landlord receives a tax bill which includes the period from the date of such lax bill to the
expiration of the tenn hereof, Tenant shall pay .uch adjusted amount upon bil1ing by Landlord.
(d) For the PUrpollCS of thia Lease, the words 'Separately Aasessed Premi.... sha11
mean only each of the following portions of the Shopping Center which are in fact separately
a.....ed or for which the amount of taxes actually a""""sed is readily ascertainable or which are
used in connection with the operation of a department store or portions of the Shopping Center
which are owned. leased to or othe1'\Vise occupied by " department store or portions of the
.
D:\LcgaI\Le... BodIHlMrs.IIeId'.- TcUY (CCM).dO</Mn, fl.ld.-TCBY (CCM)
Shopping Center which are owned, leased to: or otherwise occupied by a variety or. specialty store.
For pUrpoRS of this Lease a 'variety or .pecialty store' i. an OCCUplUlt which leases or occupies
15,000 squ..... feet or more of building .pace in the Shopping Center. For the purpolICs of this
Lea... the word. 'leasable noor area' shall mean the .quare feet of lIoor area in enclosed building.
which are erected lIn portion. of the Shopping Center other than Separately Aaseaaed Premise.
and which are designed exclusively for use and occupancy by tenants other than occupants of
Separately Aaoesaecl Premise. and which are open for bu.iness by .uch tenants.
(el For.the puIpOllC of this Lea... the words"'ax Year" shall mean the twelve (12) lull
calendar months of the term commencing with the January 1st immediately following the
commencement date and ending D<<:ember 3lat of .uch calendar year and each .ucceeding
twelve (12} month period thereafter commencing in the term of this Lease; provided, however. the
[lIst Tax Year shall commence on the commencement date and terminate on the immediately
succeeding December 31st.
(I) 1l for reason. other than Tenant's default the term of this Lease terminates on a
date other than the last day of a Tax Year. Tenant's Tax Rent shell be equitably pro-rated.
Notwithstanding anything herein to the contrary, for the purpose of computing the Tax Rent due
for the [lIst Tax Year. all taxes (equitably pro-rated) payable during the caJendar year in which the
first Tax Year shall fall sholl be deemed payable during the first Tax Year.
(g) If. after Tenant .holl have made the required annuol payment of Tax Rent,
Landlord shall receive a refund of any portion of the taxe. included in the compu !ation of such
Tax Rent, provided Tenant i. not then in default h=nder. Landlord ahall credit to Tenant that
percentqe of the net refund after deducting all costa and expenses (including, but not limited to,
attorneys' and appraiaer&' fees, expended or incurred in obtaining such refund. which the portion
of the taJre& in question paid by Tenant bear. to the entire amount of such taxes immediately
prior to the refund. Tenant shall not institute any proceedinp with respect to the aase_d
valuation of the Shopping Center or any part thereof for the purpo... of securing a tax reduction.
In the event the Landlord shall retain any consultant to negotiate the amount of taJre&. tax rate,
assessed value and/or other factor. influ.encing the amount of taxes and/or in.titute any
adminiatrative and/or lepl proceeding.s cha1lenging the tax rate, asse.sed value or other factors
influencing the amount of tax.... whether Or not such action re&Ult& in a reduction in the amount
of taxe., Tenant'. Tax Rent shall include the portion of the asgrepte of all such reasonable feea,
reasonable attorneys' and appraisers' fee. and all di.bunlementa, court costa and other aimilar
item. paid or incurred by Landlord during the applicable Tax Year with respect to .uch
proceedinllS which is obtained by multiplying the aggregate of such &Urna by the fraction set forth
in Section 2.04(b) hereof.
(h) If at any time during the term of thia Lease, under the laws of anyone or more
jurisdiction. in which the Shopping Center ia located, a tax, impooition. charge, aaae8lllI1ent, levy,
excise or license fee ia levied on, imposed "llainst or measured. computed or determined, whether
a. a substitute or not for the whole or any pari of the taJre& now levied. a88C8&Cd or imposed on
real eatate a. such, or there ohaU be levied, assessed or imposed (1) a tax on the renta received
from such real ..tate. or 12} a license ree mea8Ured by the rents receivable by Landlord from
Landlord'. Parcel or any portion thereof. or (3} a tax or Iicen... fee imposed upon Landlord which
is otherwise meawred by or based in whole or part upon Landlord'" Parcel or any portion thereof,
or (41 an income or franchise tax. then the same shaD be included in the computation of taxes
hereunder, computed as if the amount of .uch .fax or fee SO payable were that due if Landlord'.
Parcel were the only property of Landlord subject thereto. In addition to the foregoing, should
any governmental authority acting under any existing or future law, ordinance or regulation. levy,
assess or impose a tax, exciac and/or assessment upon or against this Lease, the execution
hereof andlor the Minimum Rent, .or any item of additional rent payable by Tenant to Landlord
wh.ther by way or. substitution for or in addition to any existing tax or otherwise, and whether or
not evidenced by documentary stamp. or the like, Tenant shall be re.ponsible for and ohaU pay
such tax, exci... and/or .......ment, or shsll reimburse Landlord for the amount th.reof, a. the
c.... may be.
(i) Tenant'. obligation. under this Section 2.04 shall survive the expiration or earlier
termination of the term of this Lease.
OJ In the event of any dispute as to the floor area in the Shopping Center or any
portion thereof (other than the \eased premises which shaIl be determined by the provisions of the
Indenture of Lea.e), the determination of Landlord's architect shall be binding upon the parties.
;
D:ILerlllllMt. lodi<l\Mn. Field'.. TCB'I' (CCM).doelMrs. "eldo- TCBY (CC[\I)
,"
SECTION 2.05. .Arlditional Rent.
AI! sums of money or charges teqUttW to be paid by Tenant under this Lease, whether or
not the same are desi&nAted 'additional rent', shall for all purpo.ea hereunder be deemed and
shall be paid by Tenant as rent. If 8uch amounts or chargea are not pIlid at the time provided in
this Lease. they shall neverth.lees. if not pIlid when due, be collectible as rent with the next
installment of Fixed Minimum Rent thereafter falling due h......und.r and shall bear interest from
the due date thereof to the date of payment at the highe.t rate aDowed by law.
ARTICUIl m .
BOOKS OJ' AOCOUJIT AlID AWIT'
SECTION 3.01. Tellanr. Record..
(al Tenant covenants and agrees that the bulinelll of Tenant and of any subt.nant,
lic.nse. or conceaalonaire upon the demised premises shall be operated "" that a duplie&te dated
sale8 alip, dsted invoice or dated cash register receipt, serially numbered, shall be iesued with
each we or transaction, whether for caah, credit or exchange. lUld to record all cash.sales Tenant
sh8.lt utilize, or cause to be utilized, cash registers equipped with aealed continuous total or such
other devices for controlling sales as Landlord shall approve. Furthermore, Tenant shall keep at
aD ilinea during the term hereof, at the demised premiaes or at the general olllee of Tenant, fun,
complete and accurate books of account and recorda in accordance with accepted accounting
practices with respect to all operations of the busineaa to be conductl'd in or from the demised
premi..s including, without limitation, the recording of 01'081 Sales and the receipt of all
merchandiae into and the delivery of all mer<:handiae from the demised premiaea during the term
hereof and shalt retain such books and records, copies of all tax reports submitted to the
appropriate taxing authorities, .s welt .s copies of contracts, voucher., chcckll, inventory records,
datl'd cash register tapes and other documents and pepers in any way relatins to the operation of
such buaineea (all of which are hereinafter collectively refoned to aa "books and records'l, for at
leaat three (3) years from the .nd of the lease y.ar to which they are applicable, or, if an audit is
commenced or if a controversy should sri.. b.tw..n the parties hereto regarding the rent payable
hereunder, until such audit or controversy i. terminated .ven though such retention period may
be after the expiration of the term of, or earlier termination of, this Lease. Such books and
record. shall at all _""nable ilinea during the aforesaid retention period be open to the
in.pection of Landlord or its duly authorized representative., who ahall have rull and free acceS$
to such books and records, the right to audit such books and records and the right to require of
Tenant, ita agents and employeea, wch information or explanation with respect to .uch books
and record. as may be neceaaalY for a proper examination andlor audit thereof.
(b) In the event Tenant violate. the proviaion. of Section 3.01(a) and as a result of
.uch violation, Landlord, or it. duly authorized representative, i. unable to conduct.a proper
examination andlor audit, the perties agree that Landlord ahall h8.ve been deprived of an
important right under this Lease and, a. a re.ult then:of, will w!fer clam8ll8a in an amount which
i. not readily aacertainable and thu., in .uch event, Landlord;'in addition to and not in lieu of
any other retnedies which Landlord ha. under this Lease, at law or in equity, shaD have the right.
at its option, to collect, aa liquidated damages and not as a penalty, an amount equal to twenty
percent (20%1 ol the greater of (a) Percentage Rent reportl'd for the period or periods in que8tion,
or (hI the annual Fixed Minimum Rent payable for the period or periods in queation,
SECTION 3.02. Audit.
If the examination and/or audit ref.rred to in Section 3.01 shall diacloae that Tenant baa
under.tated ita Gross Salea by one percent (1%) or more for the period being examined, Tenant
shall pey to Landlord, upon demand, the coat of such examination and/or audit in additiori to the
deficiency in Percentage Rent which shaD be pl\Yable in any event. In addition, Landlord may
treat the existence of wch lisbility aa a Deliberate Event of Default.
. 6
D:\IApIIL_IIodId\Mrs. FI.ld'.. Tell' (CCM).do<lMrL Field.. Tell' (CCMI
ARl'ICLE IV
COlI8IRVCTION OF LBA8BD ..........-
SECTION 4.01. Construction bv lAndlord.
Landlord, at ita coat and el<pOn"", shall construct the demised premises incorporating in
such construction all item of work deecribed as Landlord's Work in Exhibit "A" attached hereto
and made a part hereof (all such item'; are hereinafter co1leetively referred to a, "Landlord's
Work"l, Landlord shal1 have the exclusive right to determine the archite<:tural deaisn and the
structural, mechanical and other standard details and speci!'lC8.tion. of Landlord', Work,
including, but not limited to, the q.pe of materials and the manufacturer and supplier thereof.
SECTION 4.02, Tenant'slmorovements and Fixtures,
laI Within thirty (30) days after Landlord's architect providCll Tenant with OUtline
Plans for the demised premises. Tenant shall furnish to Landlord, for Landlord', approval,
complete working drawings and specification., pursuant to Ji:xhibit "A".
(bl Within ten (10) daya after the notice of approval of Tenant's complete working
drawings and specifications by Landlord'. architect, Tenant shall, at ita tole cost and expeIllle,
subject to any provisions for reimbursement set forth in the Indenture, commence and thereafter
promptly complete all the work and other requirements imposed upon Tenant in Exhibit 'A', (all
such items being herein referred to as "Tenant's Work"l. In the event Landlord, on Tenant'.
behalf, shall perform any work or install any equipment included in Tenant's Work, Tenant,
within fifteen (15) days after receipt of a bill therefor, shall pay to Landlord, as additional rent, a
sum equal to all sums paid and costs incurred by Landlord in performing such work and! or
installing such equipment plus odminiatrative costs of Landlord in a aum equal to twenty percent
(20%) of such aum and/or coats. Notwithstanding anything contained in this Section 4.02 to the
contraJy, Landlord shall not be responaible or liable to Tenant, its agents, servants, employees,
licensecs, or contractors, or their respective agents, servants, employees, licensees or contractors,
for any loss or dlUJl8lC to the property of such party occurring prior to or lIUbaequent to the
conunencement of the term. Nothing in this Lease shall be construed as in any w&:j constituting
a consent or request by Landlord, expreaaed or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the performance of any labor or the
furnishing of any materials for any specific or general improvement, alteration, Or repair of or to
the demised premises or to any buildings or improvements thereon, or to any part thereoC.
SECTION 4.03. FinancinR:.
Landlord reserves the right to sever the ownership of or title to the various sections of the
Slu>pping Center and/or to place mortgages on said ""clions, in which case the right of Tenant
and other tenants in" the Shopping Center will be preserved by a written d~tion or agreement,
to be executed by Landlord and duly recorded, creating mutual, reciprocal and interdependent
rights to use the parking and other common areas and the utilities and facilities needed for the
full use and enjoyment oC the demised premise. by Tenant and other tenants or occupants in the
Shopping Cenler without impairing any of the duties and obligations of Landlord to Tenant under
this Leaae. Tenant shall execute (rom time to time such instrUments reasonably required by
Landlord and its mortgagee to effectuate the provisions of this Section 4.03.
SECTION 4.04. Excuae of PerfOrmance,
Notwithstanding anything in this Lease to the contra.ty, if Tenant shall be delayed or
hindered in or prevented from perfonnance of any act required hereunder by reason of any strike,
lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion. hoatilitiea, military
or usurped power, sabotage, governmental regulations or controls, failure of power, inability to
obtain any material or .service, Act of God or other reallons of a like nature not related to the fault
of Tenant. then performance of such act by Tenan t shall he excu.aed. for the period oC the delay
and the period for the performance of any such act by Tenant shall be extended for a period
equivalent to the period of such delay; provided, however, the foregping provision of this Section
4.04 shall not excuse Tenant from the prompt psyment of Fixed Mfuimum Rent, Percentage Rent,
Tax Rent, additional rent or any other payments required by the term of this Lealie,
Notwithstanding anything in this Lease to the contrary, Landlord shall not be d~ed in default
7
D:\L...I\L_ _..IMn. field'..TCBY ICCl\f).d../Mro. Fidell. TCBY (CCM)
with respect to the performance of any of the terms, covenants and conditions of this Lease if
Landlord's failure to perform 8Uch terms, covenants and conditions is due to IIny strike, lockout,
labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military or
usurped power, sabotage, governmental regulations or controls, failure of power, inability to
obtain any material, service or fmancing, Act of God, lire .or other casually or other cause,
whether aimilar or disaimilar to those enumerated in this Section, which is beyond the reaaonable
control of Landlord.
ARTICLB V
CO.IIDUCT OF 1IU8111B88
SECflON 5.01. Use of Premis....
Ill) Except as otherwise specifically provided herein, commencing On the
commencement date and thereafter for the balance of the term of this Leue, 'tenant shall
continu<Naly occupy and use the demised premises solely for conducting the business specified
in the Indentute of Lease 1I8 the permitted use, and will not use or permit or suffer the uoe of the
demJ8ed premise" for. any other business or purpose. In addition, 'tenant agrees that 'tenant
shall not operate or cause or permit to be operated any catalogue, mail, or telephone order Well
in or from the demised pnmtises except the incidental We of merchandise which 'tenant is
permitted to ...n over the counter to customers in the demised pftmi_ pursuant to the
permitted use set forth in the Indenture of Lease. The authorization of the 1.1.. of the premises for
the business purpo8ell ..t forth in the Indenture of Lease docs not constitute s representation or
w&mu1ly by Landlord that any particular use of the promi..s.is now Or will continue to be
permitted under applicable laws or regulations.
(bl Tenant ahaII not permit, allow or cause any of the following to be conducted in
the demiaed premises: IIl1Y public or private auctiOn, or any We which would indicate to the
public that 'tenant is bankrupt, is going out of business, or has lost its Ieaae. Tenant shan not
use or permit any use of the demised premillC8, except in a manner conslatent with the gencraI
high standards of merchandi8ing in the Shopping Center, nor shall Tenant's adverti8ing indicate
or infer that Tenant is operating ita business in a manner which is not conoistent with the general
high standards of mm:handiains in the Shopping Center. Nothing contained in this Section
5.01(b) ahaII dect Or is intended to affc<:t Tenant's pricing policie..
Ic) Because the adequacy of the rental hereunder is dependent upon Tenant's Gross
Salea whether or not fWcentage Rent is payable hereunder, Tenant agrees that commencing with
the commencement date and thereafter throughout the term or this Lease, Tenant will
continuoualy, actively and diligently operate or cause the permitted business to be operated in
good faith and in an emcient, businesslike and respectable manner, maintaining in the demised
premises a full staff of employees and a run stock of seasonable merchandise or the quality, kind,
type and breadth which Tenant usually sells, and employing 'tenant's best continual efforts and
abilities to the end that the lll8Ximum.Oross Salea which can reasonably be produced from the
demised premia... shall be produced. Tenant shan not use or permit any u"" of the demised
premi..., or any part thereof, in a manner which in Landlord'. opinion would injure the
reputation of the Shopping Center or the neighborhood of which it is a part.
(d) Throughout the term of this Lease, Tenant shall cause it. store to remain. open
from 10:00 A.M. until at least 9:30 P.M. each day of tbe week and tho"" hours on Sundays and
holidays during which the enclosed mall is open to the public. Tenant agree. that the hours
during which Tenant is obligated to operate may be changed by Landlord from time to thne,
prov:ided that Landlord wiU not act in a di.criminato<y manner.
(el Tenant ahaII operate andlor advertise the busineaa operated at or from the
demised premi.... only under the name set forth in the first page of the Indenture of Lease,
unless and until the use of another name is pennitted, in writing, by Landlord.
SECTION 5.02. Stora2e.
Tenant shaU warehouse, store and/or stock in the leased premiaes only such goods,
wares and merchandise as Tenant is permitted and intenda to offer for sale at retail in, at or from
the leased premi~s. This shall not preclude occasional emergency transfers of merchandiae to
other "tores of Tenant, if any, not located within the Shopping Center.
8
D:1I..<pI\Ltuo BodlalMn. fl.Id'.. TC8Y (CCM).doclMrJ, fl.'d>- TCBV (CCM)
SECTION 5.03. Add;.;"".1 Uee of the Premises. . .
Tenant COYe1lants and agrees that Tenant at its own cost and expense:
. (al Will keep all exterior and interior store lTont surfacee clean and will maintain the
rest of the demised premises and all corridors and loading areas immediately adjoining the
-demised premises in a clean. orderly and sanitary condition and free of insects, rodents, vermin
and other p..ts; . .
(bl Will not permit accumulations of any refuse, but will remove the 8lllI1e daily and
keep such refUae in odor-proof, rat-proof containera within the interior of the demised premises
altielded lTom the view of the general public until removed and will not burn any refuse
whatsoever but win cause all auch muae to be removed by such pe1'1lOl'l or eompani.., including
Landlord, as may be designated in writing by Landlord and will pay all chargu therefor; will
secure all wet garbage in heavy-duty trash bags; and will make special anangements for the
disposal of any fats. oils. greases andlor batter. Ie Tenant shall fail to remove all such refUse, or
should fail to malee special arrangements for the disposal of any fats, oils, greases andlor batter,
Landlord may remo.... or dispooe of the same and Tenant shall pay to Landlord all sums and costs
incurred by Landlord in performing ouch removal or disposal plus administrative costa of the
Landlord in a sum equa1 to twenty percent (20%) of such sums and/or coste as additional rent;
(c) Will replace promptly with glass of like kind and quality any plate glass or
window glass of the demised premises which may become cracked or broken; .
Idl Will not, without the Landlord's prior written consent. place or maintain any
merchandise or other articles in any vestibule or entry of the demised premises or within two (2)
feet of any entrance from the demised premises to the enclosed mall. on the footwalks adjacent
thereto or elsewhere on the exterior thereof;
leI Will not use or permit the use of any apparatus. or sound reproduction or
transmission, or any muaica.l inatrUment. in such manner that the. sound so reproduced,
transmitted Or produced shall be audible beyond the confmes of the premises, and win not use
any other advertising medium, including without limitation flashing lights. or search lights which
may be heard or experienced outside of the leased premises;
(I) Will keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the demised premises;
(Ill Will not CaUse or permit objectionable odors to emanate or be dispelled from the
demised premises;
(h) Will not ""licit busine.... distribute handbills or other advertising matter or hold
demonstrationa in the parking areas or other Common Areas;
(il Will not permit the parking of delivery ....hieles so as to interfere with the uae of
any driveway, walk. parking area. or other Common Areas in the Shopping Center;
OJ Will comply with all notices. orders. laws and ordinances, including all
environmental laws and laws relating to wastes and huardous materials and any environmental
state, county or local laws or regulations, the Comprehensive Environmental Re&ponse,
CompenllBtion and Liability Act of 1980 and the Resource Conservation and Recovery Act of
1976, as amended from time to time. with any pre-approvals. if required, to be granted by the
respective governmental agency, and all recommendations of the Association of Fire Underwriters,
Factory Mutual fnsurance COmpani.... the Insurance Services Organization. or other similar body.
establishing standards for f1J"e insurance ratings with respect to the use or occupancy of the
premises by Tenant, and will participate in periodic fire brigade instruction and drills at the
request of Landlord and will supply, maintain. repair and replace for the demised premises any
fire extinguishers or other fire prevention equipment (including installation of approved hoods
and ducts. if cooking activity is conducted on the premises) required by the aforementioned rul....
regulations and Association or other body in order to obtain insurance at the lowest available
. premium rate throughout the term of this Lease; and will not engage in the treatment of any
waste, except as permitted or required by law and subject to the consent of the Landlord and the
issuance of aU appropriate licenses and permits and compliance with all laws and regulation,
relating to such treatment;
(kl Wilt not receive or ship articles of any kind except through the facilities provided
for that purpose by Landlord and will not permit any delivery of goods, supplies, merchandise, or
fIXtUres to or from the leased premises to be made through any of the enclosed malls unless the
leased premises have no entrance other than on such a mall, ;n which latter case Tenant shall
use its beat e!Torts to schedule such deliveries outside Shopping Center business hours, except
with Landlord '8 approval in emergency situations;
9
D:\LopIIL_ Bo4ie1\l\1n. F1dd'.. TeDY (CCPoI}.do<IMra. Fi.1dJ- TCBY (ClM)
(II WiJllisht the show windoW<! of the demised premises and exterior signs each day
of the year to 'the extent which shall be required by lAndlord but in no event later then one hour
after the cloae of the Center;
(ml For any exterior entrance or service door exclusi'le!y serving the demised
premises, will keep aD outside areas inunediately adjoining the same including, but not limited to,
sidewalks and loading docks free from ice and snow and Tenant hereby agn0e8 that Tenant is
solely liable for any accldenl8 occurring on said outside arcae due or alleged to be-due to any
accumulation of lee and snow;
(n) Will refer to the name or the Shopping Center in all advertising done to promote
sales at the: demised premieee;
(oJ Will, if required by Lancllord, install,inspect and maintain mtration devices,
including. without limitation, grease traps. oil splitters fUld/or acid neutralizers. in and on
Tenant's sewage lines prior to any discharge of waler or sewage .from the demised premises into
Lancllord's sewer Unes. In the event that Tenant shall fail to install. inspect or maintaln the
aforeaaJd rdtration d~s, Landlord my undertake such instal1ation, inspection andfor
maintenance and Tenant sball pay to Landlord aD sums and costs incurred by Landlord in
perlorming such instaI1ation, inspection andlor maintenance plus administrative costa of the
Landlord in a sum equal to twenty percent (20%) of such sum andf or costs 88 additional rent.
(PI Will 1IOt use the plumbing facilities for any other purpose than that for which
they are constructed and will not pennit any foreign substance of any kind to be thrown therein
and the expense of repe.iring any breakage, stoppage, &eepIlgC or dam.v, whether occurring on
or off the premiscs, resulting from a violation of this provi,,;on by Tenant Or TenBD~s employees,
agents or invitees shaD be borne by Tenant. All grease traps and other plumbing traps sball be
kept clean and operable by Tenant at Tenant's own cost and expense;
(qJ Will not permit any shopping carta in the Common Areas even if taken there by
customers;
{r1 Will not place or cause or permit to be placed within the demised premises. pay
telephoncs, vending machinea (except those for the exclusive use of Tenant's employees, or
amusement devices of any kind without the prior written consent of Landlord;
SECliON 5.04. Rules and Relhllations.
(a) Landlord reserves the right from time to time to adopt and promulgate rules and
regulations applicable to the demised premises and the Shopping Center and to amend and
supplement such rules and regulations. Notice of such rules and regulations and of any
amendment and supplementa thereto shall be given to Tenant and Tenant agrees thereupon to
comply with and obse"", all such rules and regulations, provided that, to the ""tent practicable,
the same ahaIl be applied uniformly to substantially aD non-department store retailtenanta of the
Shopping Center.
(b) Landlord's rights and remedies in the event Tenant shall fail to comply with and
observe such rules and regulations ahaII be the same aa though such rules and regulations were
set forth in Section 5.03 of this Lease. .
ARTfCLE VI
GRAIn' or CONCE88l0Jr8
SECTION 6.01. Conditions to Grant.
The provision apinst subletting elsewhere contained in thla Lease shaD be .applicable 80
as to prohibit Tenant from granting concesaions without the consent of Landlord for the operation
of one or more departinentA of the business of Ten ant, and any grant of concessions consented to
by Landlord ahaII be subject to the conditions that (al each such conceasion which may be
granted by Tenant ahaII be subject to all the terms and provisions of this Lease; (b) the Gross
Sales from the operation of each such concession shall be deemed to be a P!lrt of the Grosa Sales
of Tenant for the purpose of determining the Percentage Rent payable to Landlord; (c) all of the
provisions hereunder applying to the business of Tenant including, but not limited to, the
provisions of Articles n and III shall apply to each such conceasion; (d) unleaa otherwise approved
in writing by Landlord, such department or departments ahaII be operated only as part of the
business operation generally conclucted by Tenant on the demised premiaca and under the
advertised name of Tenant; and (e) at le..t seventy-five percent {75%1 of the aales floor area of the
10
D:lLecallLuM \Io4laIMn, Fidd'.. Tel\' (CCIII).dCJ<!MrJ. Fields- TCI\' (CCM)
leased premieea shall at all times be operated directly by Tenant.
ARTICLB W
COMMOII' AREAS
SECTION 7.01. Definition: Control.
All areas, 8p11Ce, facilities, equipment, and signs, to the extent made availa.ble by
Lanc1lord for the common and joint use and benefit of Landlor<!, Tenant and other tenanta and
occupani:a of the Shopping Center, and their respective employees, a.,nta, subtenants,
concesa.ionaires, licensees, customers and other invitees, are collectively referred to herein as
"Common Mea". .If and to the extent made available by Landlord, Common Areas shall include,
but not be limited to, the aidewalks, parkUtg areas, acee.. roads and drives, driveways, parking
decks, bridges, landscaped areas, truck 8I:lVicl:Ways, tunnels, loading docks, open tIId enclosed
pedestrian waIlr;ways, corrido... and maDs, courts, staira, ramps: elevato.... eocalatora, coml'Grt
and first aid station., public washrooms, community hall or auditorium, parcel pK:k-up station.
and utility lin.... AU Common Areas in or about the Shopping Center shall be subject In the
'exclu.ive control of Lanc1lor<!. Landlord shall operate, manage, equip, clean, light, surface and
maintain the Common Afe8Jl all in ouch manner as Lanc1lord, in its sole dillCretlon, may, from
time to time, determine (including, without limitation, the right to keep the enclosed mall open
only durin& the hours when the Sbopping Center is open for buaineas) and Landlord shall have
the sole right and exclusive authority lD employ and dillCharge all personnel with respect therein.
Lanc1lord hereby expressly re_ the right from time tD time to construct, maintain and operate
lighting and other facilities, equipment and signs on all of the Common Areas; to elean the
Common Areas; to use and allow others lD use the Common Areao for any purpose; to change the
size, area, level, location and arrangement of the Common Areas; to build multi-story andlor
subterranean parking facilities; to regulate parking by tenants and other occupants of the
Shopping Center and their respective employees, agents, subtenants, concessionaires and
licensees; tD enforce parking char.,s {by operation of meters, or otherwise} with appropriate
provisions for parking ticbt validation for tenants; to close temporarily all or s.ny portion of the
Common Areas for the purpose of making repairs, chan.,. or alteration. thereto or performing
neceasary maintenance in connection with any emergency. in connection with closings resulting
from adverse weather conditions or for any other purpo.e whatsoever, whether such purpose is
similar or dissimilar to the foregoing; to discourage non-cu.tDmer parking: tD establish, modify
and enforce reasonable rule. and regulations with respect to the Common Areas and the use to
be made thereof, For the tenn of this Lease Tenant i. hereby given the license in common with aU
others to whom Landlor<! has or may hereafter grant rights to use, the Common Area. as. thc:y
may from time tD time exi.t; provided, however, that if such license .hall at any time be revoked,
in whole or in part, or the size, area, level, location or arrangement or such Common Areas or the
. type of facilities at any liMe forming a pan thereof be cnanged, altered, rearranged or diminished,
Landlord shall not be subject to any liability therefor, nor shail Tenant be entitled to any
compensation or diminution Dr abatement of rent therefor, nor shall ouch alteration,
rearrangement, revocation, chan., or diniinution of such Common Area. be deemed a
CGn8tructive or actual eviction or otherwise be grounds for terminating or modifying this Lease.
In order to e.tabli.h that the Shopping Center or any portion thereof i. and will continue tD
remain private property and tD prevent a dedication thereof or the accrual of any rights to any
person Dr tD the public thereon, Landlord hereby reserves the unrestricted right, in Lanc1lord'.
""Ie discretion, tD close all or any portion of the Common Areas In IlUch extent as., in the opinion
of the Landlord's counsel, may be legally sufficient to prevent ouch dedication thereof or accrual
of any right. to any person or the public thereon; provided, however, Landlord reserves the right
at any time and from time lD time to dedicate to public use part or all of the ring roads, acee..
road, and drives .nd utility line., tD.,ther with all easementa required to effectuate such
dedication., as it may see fit.
SECTION 7.02. Parkinlz Facilities.
Tenant shall cause it and its employees to ps.rk only in the ou~r areas of the parking lot
or such placell all provided and de.ignated from time to time by Landlord for employee parking.
Within ten liD} days after a reque.t by Landlord, Tenant shall deliver tD Landlord a list of
Tenant'. and its employees' automobiles, which such list shall set forth the description of and the
II
MLtplllAue BocIIOI\.,"". F1dd'" TCBY (CCIII).4..IM,.. FicJd,-TCBY (CCM)
license numbers assigned to .uch automobiles and their state of iaeue. Thereafter, Tenant .hall
advise Uindlord of any change., additions or deletion. in such Uat. If any automobile appearing
on said list i. parnd in any area of the Shopping Center other than the area designated by
Landlord at any time after Uindlord has given notice to Tenant or Tenant'. .tore manager that the
.ame automobile has previou.ly been parked in violation of this provision, then Tenant shall pay
to Landlord the sum of Twenty-Five DoUar. ($25.00) per day for each .ueh automobile for each
day (or part thercol) it is parked in violation of this provi.ion. Tenant.haJJ pay .ueh 8U!Il tll
Landlord within ten (l0) daya after receipt of notice from Landlord. In addition to the foregoing,
Tenant hereby authorize. Landlord in such event to remove from the Shopping Center any of
Tenant'. automobiles, or automobiles belonging to Tenant'. employee., andlor to attach violation
sticker. or notices to such automobile., and Tenant hereby waive. and releaoe. Uindlord and .
hereby indemnifies and hold. Landlord harmle.. from all claims, liabilitie., co.ta and expense.
....hich may ari8e therefrom. .
SECi10N 7.03. Roof. Walla. Chan.... .nd Addition. to Center,
(aJ Landlord hereby raerve. the exclusive right at any time and from time to time to
use all or any part of the roof and exterior ....all. of the demised premiee. (or any purpose; to erect
scalTolds, protective barriers or other aid. to construction on, around and about the exterior of
the demised premlaea, provided that access to the demised premise. shall not be sUbstantia1ly
denied; to enter the demised premises to shore the foundation. andlor walls thereof andlor to
install, maintain, use, repair, in.pect and replace pipes, ducts. conduits and wires leading
through or loCated adjacent to the demised premise. and serving other partll of the Shopping
Center in locations ....hich do not materially interfere with Tenant's use thereof. Tenant further
agrees that Landlord may make any use, it desires of the aide or rear walla or ceiling .pace of the
demised premises, provided that there shall be no encroachment upon the interior of the demised
premises. . Landlord's right hereunder may be exercised by Landlord's de.ign.....
(b) Landlord hereby reserves the right at any time to make alteration. l!r addition.
to, and to build additional stories on, and to build a<\joining to, the building in which the demised
pretniaes are contained, and Tenant shall have no interest of any kind whataoevcr in the said
addition. or additional store. or adjoining building.. Uindlord also reserve. the right to enlarge
the area of the Shopping Center by adding additional ground thereto from time to time and,
....hether or nOI so enlarged, to con.truct other buildings "r improvements in the Shopping Center
at any time and from time to time and to make alterations thereto or addition. thereto and to
build additional storie. on .uch building or buildings and to build adjoining the same and to
con.truct double-deck elevated or subterranean parking facilities.
(c) If any excavation .hall be made or authorized to be made upon land acljacent to .
the leased premises, Tenant ahall afford to the person cau.ing or authorized to cause .uch
excavation licen.. to enter upon the leased premise. for the purpose of doing such work a.
Uindlord .haII deem neceaaary to pre..rve the wall or the building of which the leased premise.
fonn a part from injury or damage and to support the same by proper foundations, without any
claim for damages or indemnification again.t Landlord or diminution or abatement of rent.
(d) Landlord shall not be liable in any such case for any inconvenience, disturbance,
10.. of busine.. or any other annoyance arising from the exercise of any or all of the rights of
Landlord in this Section 7.03.
SECTION 7.04. RiRht to Relocate.
The purpo.. of the plan hereto .nnexed as Exhibit "8" i. solely to show the approximate
location of the demised premi.... Landlord hereby reserve. the right at any time and from time
to time to make changes or revision in such plan, including, but not limited to, additions to,
.ubtractiona from, andlor relocations or rearrangements of, the buildings, parking areas, and
other Common Areas (a. defined in Section 7.01 hereof) shown on .uch plan; provided only that
the size and location of the demised premiaes shall not be altered and reasonable access thereto
shall not be substantially impaired; provided, however, that Uindtord reserves the right to
relocate a kiosk premises, at it. sole expense, to a location of equal de.irability upon fifteen (15)
days' notice to Tenant.
SECTION 7.05, Exnen.....
Landlord (subject to the Common Area P.yment a. oet forth in Section 7.06) will at its
expense operate and maintain ~r cause to be operated and maintained the Common Areas and
12
D:\l4oIIL.... ...iaIM... F'odd',. TCBY (CCM).doclMro. F;,ld.. TCBV (CCM)
the Shopping Center. For the purposes of this Lease, "Operating Costs" 8hall be those costs of
operating and mllintaining, or of causing the operation and maintenance of, the Common Areas
and the Shopping Center of which the demised premises (orms a part in a manner deemed by
Landlord tD be reasonable and appropriate including, but not limited tD, all costa and expenses,
whether expended or incurred of repairing. lighting, cleaning, painting, refurbishing, replacing
and maintaining (including, but not limited to, preventive maintenancel and insuring the 8llll1O
with such policies and companies and in such limits as selected by Landlord (including, but not
limited to, fire insurance with extended coverage, liabilit;y insurance covering personal ix1jury,
deaths and property damage with a personal injury endorsement covering false arreet, detention
or imprioonment, malicious prosecution, libel and slander, and wrongful entry or eviction,
workman's compensation insurance, plate glass insurance, eontractualliabilit;y insurance and
1ldelity bonds); removing snow, ice, rubbish and debris; inspecting; rental and depreciation {over
a period not exceeding siXty (60) months} of machinery and equipment and other non real estate
......ts used in the operation and maintenance or the Shopping Center; repairing and/or
replacing of paving, roollng, curbs, walkways, landscaping, drainage, on-site water linea, lIIUlitary
sewer lines, storm water lines, electrical lines and other equipment lIClrving the property on which
Shopping Center or any part thereof is constructed or is to be constructed; heating, ventilating
and air conditioning enclosed Common Areas;. unifonns and replacement of uniforms; the rental
of music programs, services and loudspeaker systems including the furnishing of electricity
therefor; all charges that may result from any environmental or other laws, rules, regulations,
guidelines or order.; the cost of obtaining and operating public transportation or shuttle bus
systems used in connection with bringing customers to the Shopping Center; the smA
compensation of all personnel required OT necessary to implement the operation, maintenance,
administration, or repair of the Shopping Center including. without !imitation, management,
secretarial, o/flee, maintenance personnel, the cost of compensating Landlord's off-site personnel
involved in the adminilltration of, and providing services to, the Shopping Center, including.
without limitation, legal, accounting and secretarial pet'llO""el, based upon an apportionment of
such compensation among all properties in which Landlord or its alIiIiates own an equity interest
and to supervise and accompliah the foregoing and an administrative charge equal to fifleen
percent (15%) of the total of all Operatiog Costs.
SECTION 7.06. Common Area Pavment.
(a) For each "Accounting Period" (as defined in Section 7.06(1)1 during the term of
this Lease, Tenant shall pay to Landlord, as additional rent, as Tenant's share of the Operating
Costs, a sum equal to the product obtalned by multiplying (I) the total Operating Coats for such
Accounting Period le88 all contributions thereto actually made to Landlord by occupants of any
Separately Assessed Premi_ by (ii) a fraction, the nUmetlltor of which 8hall be the square recl of
floor area of the demieed premiee., and the denominator of which .hall be the square feet of
l....ed floor area in the Shopping Center. For the purposes of this Section, leased floor area shalt
mean the square feet of Ooor area in enclosed buildings which are erected on portiona of the
Shopping Center other than Separately Assessed Premises as defined in Section 2.04{d), which
are designed exclusively for use and occupancy by tenants other than occupants of Separately
Assessed Premises and which are occupied pursuant to an agreement with Landlord by the terms
of which Landlord obtains more than a nOlj1inal rental, AU such !loor area shall be as determined
pursuant to the provisions of Section 2.0401 and shan be fured as of the last day of the applicable
Aceounting Period.
(b) On the fifst day of each calendar month during that portion of the term hereof
falling within the fifst Accounting Period, Tenant shalt pay to Landlord, in advance, and as
additional rent, without demand and withou I any setolT or deduction, a minimum payment for
Tenant's share of the Operating Costs as set forth in Section "F' of the Indenture of Lease. If the
commencement date hereof shall not be the first day of a calendar month, Tenant's payment of its
share of Operating Costs for the fractional month between the commencement date and the first
day of the first full calendar month in the term shall be prorated on a per diem basis (calculated
on a thirty (30) day month) and shall be paid together with the first payment of Fixed Minimum
Rent.
(cl AlU:r the flfSt Accounting Period, Tenant shalt continue to pay such minimum
payments for Tenant's share of Operating Costs on the first day of each month in advance and as
additional TOl1t, without demand and without any setolT or deduction, but the aforesaid amount of
Tenant's share of Operating Costs may be increased by Landlord after the end of ca.ch Accounting
13
D:\LcpIlLnoo lIodln\Mr~ Fl<ld'~ TCBY (CCMI.do<lM,,- FI.lds- TCBY (CCM)
Period during the tenn hereof on the baois of the actual Operating Coata for the immediately
preceding Accounting Period. Upon Landlord lurnishing to Tenant a statement setting lorth such
revised operating costs, Tenant shall pay to Landlord sueh revised .hare in equal monthly
installments, each sueh installment to be a sum equal to one-twelfth (12th) ol such revised
Operating Coots in advance on the fttSt day of each calendar month thereafter until the next
succeeding revision.
(d) Following the end of each Accounting Period in which Tenant's share of
Operating Costs exceeds the minimum payment set forth in Section "F" of the Indenture of Lease,
Landlord ehall furnish to Tenant a written statement in reasonable detail covering the Accounting
Period just expired showing the total Operating Costs for such Accounting Period, the amount of
Tenant'. proportionate share thereof and payments made by Tenant with respect thereto, In
making the computation, .s aforesaid, Landlord'. .tatement aha1I be conclusive evidence of
Operating Costa.
(el If Tenant. proportionate share of Operating Costa exceeds Tenant's Payments
with respect to any Accounting Period, Tenant shall pay to Landlord the deficiency within twenty
(20) day. after the date of the furnishing of the statement from Landlord.
(f) For the purpose of this Lease, the word. "Accounting Period" mean the period
consisting of twelve (12) conlleCUtlve calendar months commencing on a date determined by
. Landlord and each aucceeding twelve (12) calendar month period commencing during the term of
this LeIl8C; provided, however, the fl18t Accounting Period sha1I commence on the date the
Shopping Center lint open. for business with the public and shall terminate on the date
immediately preceding the date 80 determined by Landlord.
(81 II the term of this Lease commencca after the date the Shopping Center first
opens for business with the public or terminates (oiber than by reason of Ten ant's default) during
an Accounting Period, Tenant's ob1igation for Tenant'. share of Operating Coots for such
Accounting Period shall be equitably pro-rated.
(hI Tenant's obligation. under this Section 7.06 shall survive the expiration or earlier
termination of the term of this Lease.
SECTION 7.07. ProDOrtionate Cost of Security.
Landlord may elect, but shall not be required, to provide security for the Shopping
Center. If Landlord shall elect to provide security for the Shopping Center, Tenant shall pay its
proportionate cost of such eecurity determined as Collows:
(a) Tenant shall pay to Landlord, as additional n:nt, the amount obtained by
multiplying the total of all costa and expense. of every kind and nature incuned by Landlord in
providing security for the Shopping Center by a fraction, the numerator of which shal1 be the
square feet of floor area of the demised premises, and the denominator of which shall be the
square feet of all "leasable floor area" (as defined in Section 2.04(d) of this Lease), but never Ie""
than the amount set forth in Section K of the Indenture of Lease and in the manner provided
therein. All such floor area shan be as determined pursuant to the provisions of Section 2.040)
and ahall be fixed aa of the Ia.t day of the applicable Accounting Period.
(b) Tenant shan pay any increase in its proportionate coat of security within twenty
(201 days after the date of the furnishing of a statement of such charges by Landlord for each
Accounting Period or portion thereof.
(c) Although Tenant ahall pay its proportionate share of the coat of security, as
aforesaid, in addition to, and not as a component of, ita proportionate share of Operating Costa,
for the purpose of Article. XVIII and XIX and Sections t3.02, 14.01 and 20.02 of this Lease, the.
words "Operating Coata" shall be deemed to include .uch share of cost of security.
ARTICLE WI
8IGK8; AWIlDIGB; CA!lOPIE8; JPIXT1J1tB8; ALTBRATlON.
SECTION 8.01. Sims. Awninas and CanoDies.
(a) Tenant aha1I, at its own riak, lawfully erect illuminated signs, conceming the
buslne"" of the occupant of the demised premises, and agrees to maintain said signa in good
condition and state of ...,pair and save Landlord harmless Crom any 1088, coat of damage a.. a
result of the erection, maintenance, existence or removal of such signs. All signs shall be in
\4
D:l1401\Lcooe BodIaIMn. FIeld'.. TCBY (CCM).dO<!Mn. FI.Id.- TCBY (CCM)
accordance with Landlord's Sign Specifications, a copy of which will be attached to the OUtline
Plan and shall be approved in writing by Landlord. Upon va.cating the demised premises, the
Tenant qrees to remove all signs and repair aU damage caused by such ""?,,ova.I. Te~ant
covenanta that no Dashing, illuminated or paper signs will be used anywhere In the demiaed
premises and all aigning is wbject to Landlord's prior written approval. T~ant shall ~ot install
or affix any sign, device, antenna, fixture or atta,;)mumt on or to the extt:nor or IIltertor of the
demised premises including, by WIo/ of illustration, any window or door; nor place any vent,
structure, building, in1~t, sign or a.dvertising device or obstruction of any kind within the
Common Areas or on the ellterior or interior walls of the demised premises, without fir8t obtaining
Landlord's written conoent.
. (hI Tenant shall neither place nor maintain nor suffer to be placed or maintained on
the exterior of the demised premioes or on the glaas of any window or door of the demised
premises which shaU be visible from the exterior thereof-or within three (31 feet of any such gJasa
{other than neatly lettered signs of reasonable size placed on the floor of the displa,y window. .
identifying articles olrered for sale and the price thereoll any sign, aWIling. canopy, decoration,
lettering. advertising matter or any other thing without in each instance flf8t obtaining Landlord's
written approval thereof; and Tenant further agrees to design and. to maintain such sign,
decoration, ~ttering, advertising tIlJltter or other thing as may be approved in good condition and
repair at all times.
(e) Tenant shall not paint or decorate any part of the exterior of the demised
premises, or any part of the premises which shall be visible from the exterior thereof, without rU'8t
obtaining Landlord's written approval of such painting or decoration.
(d) Tenant shall install and maintain at all times, subject to the other provisions of
this Section, display& of seasonable merchandise in the show windows (if any) of the demised
premises; and TenlU\t further agrees that all articles and the ll1TaI1gement, style, color and
general appearance thereof, in the interior of the demised premises which shall be visible from
the exterior thereof, including, but not limited to, window displays, advertising matter, algns,
merchandise and store fIXtUres, shall be maintained in the premises so .aa to be in keeping with
the character and stanclards of the Shopping Center.
SECTION 8.02. Pronertv in Demised Premises.
(at All leasehold improvements, such as light fixtures, heating and air-conditioning
equipment, shall when installed attach to the fee and become and remain the proper1;y of
Landlord. Such property shall not be removed unless replaced with \ike property.
(bl All inwmtoty and all trade fixtures hereafter installed or placed by Tenant in the
demised premises shall be new, shall remain the property of Tenant and shall be removable by
Tenant at the expiration or earlier termination of the term of this Lease provided that: (1) Tenant
shall not atwch time be in default under this Lease, and (2) in the event of the removal of any or
aD of such proper1;y Tenant shall promptly restore the damage done to the premises by the
installation andlor remova.lthereof. Should Tenant fail to 80 remove Tenant's property andlor to
80 restore the premi8es, Landlord may do so, collecting, at Landlord's option, the cost and
""pense thereof, as additional rent, upon demand. Any auch property which is not removed and
which by the terms of the Lease is not removable by Tenant at or prior to any termination of this
Lease including, but not limited to, a termination by Landlord pursuant to thia Lease, shall,
unless Landlord gives Tenant notice to remove any or all of such property, be and become the
proper1;y of Landlord (without any oblilllltion by Landlord to pay compensation for such property).
In the event Landlord gives Tenant such notice to remove any or all of such proper1;y, Tenant shall
promptly remove such property as may be specified by Landlord in such notice. Notwithstanding
anything herein contained to the contrBIY or any decision of any court to the eontrary, the term
"trade fIXtures" shall not include any attached leasehold improvements including but not limited
to air-conditioning. heating, lighting, electrical and plumbing equipment installed by Tenant in
the demised premises, nor IU\Y wiring or Other apparatus related thereto.
(c) In the event Tenant cease. its business operation in the demised premises and is
in default with respect to its obligation for the continuous operation of it. bUainesa, Tenant shall
be deemed to have abandoned the demised premises and all proper1;y of Tenant shall also be
deemed to have been abandoned and said property may be retained or disposed of by Landlord a8
Landlord deaires. .
II
D:lL<aollLeue BodlalMn. Fle1d'..TCBY (CC~).do</M.... Fi.lds-TCBY (CCM)
SECTION 8.03. ImorOlretnents and Alterations. .
(al Tenant covenants and agrees not to make or permit to be made any alterations,
improvements and additions to the demised premlses or any part thereof except by and with the
written consent of Landlord first had. All alterations, .improvements and additions to eaid
premises shall be made in accordance with all applicable laws and shall at onct: when made or
inamlled be deemed to have attached to the freehold and to have become the property of Landlord
anti shall remain for the benefit of Landlord at the end of the term or other expiration of this
Lease in .. aoo<I order and condition as they were when installed, reasonable wear and tear
excepted.
(hI In making such alterations, additions and improvements to the demised premises
and in in8talIing such chattels, equipment and (lXtur.. or doing such other work, Tenant shall
promptly pay all contractors and materialmen 80 as to minimize the possibility of a lien attaching
to the d!'miaed prem;..,s or the Shopping Center, and Tenant shall include in all contracts .and
subcontraCts for work to be performed On Tenant's behalf at the demised premiaes proviaions
wherein such contrac:tor or subcontractor aclmowledges that Landlord has no liability under
such contracts and subcontraCts and that such contrac:tor or subcontractor wai_ any right it
may have to lien or attach Landlord's parcel or the Shopping Center of whJch LandJord's parcel is
a part, and should any such lien or notice of intention to perform or furnish material. ('Notice")
be made or r1led, Tenant .hall bond against or discharge the same or notice of intention to
perform or fumi.h material. ('Notice") within twenty (20) days after written reque.t by Landlord.
If Tenant .hall fail to cause 8Uch lien or Notice to be bonded against or to be diacharged within
the period afore.aid, then, in addition to any other right or remedy which Landlord may have
under this Lease, at law or in equity, Landlord may, but shall not be obligated to, diacharge the
same either by paying the amount claimed to be due or by procuring the discharge of such lien by
deposit or by bOnding proceedings and, in any such event, Landlord shall be entitled, if Landlord
80 elects, to compel the prosecution of any action for the forec1oaure of ouch lien or Notice by the
lienor with intetest, costa and expense.. Any amount 80 paid by Landlord and all coats and
expens.. incurred by Landlord in connection therewith, together with intetest thereon at the
highest rate peh:nitted by law from the respective date. of Landlord's mal<ing of the payment and
incurring of the c08t and expense, shall constitute additional rent payabte by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand.
Ie) The provision. of this Article shall survive the expiration or earlier termination of
the term of this Lease,
ARTICLE IX
IIAlNTDAIlCB AIlD REPAIR; 8URRBBDER OF LBA8BD PRBID8B8
SECTION 9.01. Reoaira and Maintenance bv renant.
(a) . Tenant 8hall at all times at its own expense keep and maintain the demised
pN:misea (including, but not limited to, aU entrances and the inaide and outside of all glass in the
doors and windows and show window moldings) and all partitions, doors, rIXtures, signs,
equipment and appurteDal'lces thereof in good order and repair, and in a neat, safe, clean and
orderly condition, including, but not limited to, reasonable perioclic paintins a8 determined by
Landlord and makins an non-strUctural ordinary and extraordinaIy, foreseen and unforeseen
repairs and replacements to the denWled premises, including, without limitation, repairs and
replacements to the plumbing and sewage facilities within the demised pN:mises or under the
floor slab including free Row up to the main sewer line, electrical, heating, ventilating and air-
conditionins system and e.calators and elevators, if .any, and mechanical llY8tem and
installations therein. Tenant .haD not overload the electrical wiring serving. the premises or
within the prem;..,.. and will install at its own expense but only alter obtaining Landlord's written
approval, any additional electrical wiring which may be required in connection with the demised
premises.
(hI Tenant will repair promptly at its own expense any damage (whether strUctural
or non..structural) to the demised premises caused by any construction or alterations peri'onned
by Tenant or bringing into the premises any property for Tenanrs use, or by the installation or
.removal of such property, regardless of fault or by whom such cIamage shall be cauaed, unless
caused 80lely by the negligence of Landlord or its servants or employees,
(c) In the event Tenant defaults in the performance to Landlord's satisfaction of any
16
D:1Lep11Leuo BodlaIM.... Fldd',.TCBY (CCM),do<lMn. Fi.ld..TCBY (CCM)
of ita obliptions under thi. Section 9.01, and such default continues for a .period of ten (10) days
after written notice from Landlord (except that in an emergency no notice .hall be required).
Landlord in addition to Landlord'. other remedies under thia Leaae, at law or in equity, tnllY (but
.haII not be oblipted to <10 so) cure such default on behalf of Tenant without any liability of
Landlord, it. agents, servants, employees, contractors or subcontractors for damage to Tenant's
merchandiae, fIXture. or other property or to Tenant's buline.. by reason th=f, and Tenanl
shall reimburse Landlord, as additional rent, upon demand, for any .um. paid or cos'" incurred
in curing such default, plus adminiatrative cost. of Landlord in a sum eqtUil to twenty percent
(20%) ofauch sums and/or coats.
SECI'lON 9.02. Structural ReDlIira.
(a) Except a. otherwise provided by 9.01(bj, structural portion. of the premise., the.
roof of the demised premise. and those portion. of the exterior of the demised premisea which
Tenant i. not obligated to maintain pursuant to Section 9.01(aj will be repllired by Landlord
provided Tenant giVe8 Landlord notice specifying the need for and nature of such repair.;
provided, however, if Landlonl is required to make any repairs to .uch portion. of the demi8etl
premi... by reason, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's
agent, &e1VIlnts, employees, contraclDr8 or subcontrllctors, or by resson of any unusual use of the
demised premiae. by Tenant (whether or not such u.. is a permitted use hereunder), Landlord
may collect the cost of .uch repairs, a. .dditional rent, upon demand. For the purpose of this
Leaae. any difference in floor level, shifting of floor .Iab, or deviation in finished floor height
resulting from the insertion or construction of an expansion joint or .trip in the floor slab shan
not be deemed a structural defect requiring repair by Landlord, but rather, a nonnai construction
practice which shall be Tenant's responsibility to appropriately plan for in its construction and
use of the demised premi....
(b) If, without Landlord'. prior consent, Tenant perform. any alterations, additions,
improvements, change., affixation. of chattels or other work which affects the .tructural portion.
of the demised premi.... and/or the roof of the building of which the demised premises are a part
and/or that portion of the exterior of the demised premise. which Landlord is obligated to repair
purauant to Section 9.02(8) or which alf..,t. the structural integrity of the building of which the
leased premisea .hall form a part, such action by Tenant shall relea.. and discharge Landlord as
of the commencement of such alteration, addition, improvement, affixation or other work of and
from such repair obligation and thereafter Tenant agreea to be solely responsible (or the
maintenance, repair and replacement of any or all such structural portions, roof, exterior and
building which have been affected a. aforesaid; provided, in the event Tenant shall default in the
performance, to Landlord's satisfaction, of such reaponsibilitie., Landlord, in addition to
Landlord's other remedies under this Lease, at law or in equity, may (but shall not be obligated to
do so) cure. such default on behalf of Tenant without any liability of Landlord, its agents,
servante~ employeee, contractora or subcontractors for damage to Tenant's merchandise, fixtures
or other property or to Tenant's business by reason thereof, and Tenant. shaD reimburse
Landlord, aa additional rent, upon demand, for any sum paid or coats inClUT8d in curing .uch
default, plus aclminiatrative co.ts o( Landlord in a sum equal to twenty percent (20%) o( such
sum and/or costs. For the purposes of the foregoing, if Tenant perform. any such alteration.,
addition., improvement., change., affixations or other work in a manner not consistent with
Landlord'. prior consent thereto, such work .hall be deemed to have been performed without
Landlord's consent.
SECTION 9,03. Surrender of Premises.
At the expiration of or earlier termination of the term of thi. Lea.., Tenant shall
peaceably .urrender the lea.ed premi... in the same condition including, b1.\t not limited to, the
conditions of c1ellnline.s, as the leased premises were upon the commencement of the term of
this Lease, ordinary wear and tesr excepted to the extent the leaaed premi..s is not required to be
repaired andlor maintained by Tenant and damage by unavoidable casualty excepted to the
extent that the same is covered by Landlord's fire insurance policy with extended coverage
endorsement, and Tenant shall surrender aD keys for the leased premi.... to Landlord at the
place then fixed for the payment of rent and shan notify Landlord in writing of all combinations of
locks, safes and vaults, if any, in the leased premi.... Tenant shall comply with the provisions of
Section 8.02 respecting the removal of it. property before surrendering the premises as aforesaid.
Any property not 90 removed at the expiration of the term hereof, shaU be deemed to have been
17
D:ILtpI\L....IIodlesIM.... Fltld".TCBV (CCIII).doc/Mrs. Fltld...TCBV (CCM)
. a~doned by Tenant. and may be retained or disposed oC by Landlord. as Landlord shall desire.
Tenan~s obligation to observe and perform the covenanl$ set forth in this Section 9.03 shall
survive the expiration or earlier termination of the term of this Lealie,
ARTICLE X
IlmBllllllFICATlOK; SUBROGATIOIl
SECTION 10.01. Indernnifi~tion and Waiver of Claim.
(al Tenant will defend and, except to the extent cauaed by the neg1igence of
Landlord. il$ agenl$. aervants. and employees, will indemnify Landlord and Agent and ....ve them
harmless from and spinst any and all claims. actions. damages, Iiabili1;y and expense (including.
but not limiteci to, attomey's fees and disbunements) in oonnection with the loss of life, personal
ifliury or damage to property or business arising from, related to. or in connection with the
occupancy Or Use by Tenant oC the demised premises or any part of Landlord's property or the
Shopping Center or occasioned wholly or in part by act or omi..ion of Tenant. il$ contractors,
subcontractors, subtenanl$, licensees or concessionaires, or its or their respective aaenl$,
servanl$ or employees. Tenant.shall aloo pay all cosl$, expenses and reasonable attorney'. Cees
that may be expended or incurred by Landlord and/or Agent in succeswlly enforcing the
covenants and aareements of this Lease. The provisions of this Section 10.01 shall aurvive the
termination or earlier expiration oC the term oC this Lease.
(hI Unless and then solely to the extent such damage is caused by the neg1igent acts
or ami_siona of Landlord, Agent, or their respective agents, servante, and employees, neither
Landlord, AlIent nor their respective agents, se",ants, employees or contractors shall be liable Cor,
and Tenant, in consideration oC Landlord's execution oC this Lease. hereby reloa..s all claims for
10... of life, personal illiury or damage to property or business sustained by Tenant or any person
claiming through Tenant resulting Crom any flIe, accident. occurrence or condition in or upon the
Shopping Center or any part thereoC (including, without limitation, the demised premises and the
building of which the oame is a part), including, but not limiteci to, such claims for loss of life,
personal injury or damage resulting from (I I any deCect in or Cailure of plumbing. heating or e.ir
conditioning equipment. electrical wiring or installation thereof, water pipes, stairs. railings or
walks; (21 any equipment or appurtenances being out of repair; (31 the bursting, leaking or
running of any lank, washstand, Wl\ter closet, waste pipe, drain or any other pipe or tank in,
upon or about the Shopping Center; (4) the backing up of any sewer pipe; (5) the escape of steam
or hot water; (61 water, snow or ice being upon or coming through the roof or any other place
upon or near the demised premises or the building of which the same is a part or otherwise; (7)
the falling of any fll<lUre, plaster or stucco; (8) broken glass; (91 any .act or omission of other
tenant. or other occupants of the Shopping Center; and (101 any act or omi88ion oC Landlord,
Agent or their respective principals. agents, ..",ant. and employees whether occurring on, prior
to, or subsequent to the date of this Lease. The foregOing waiver and release is intended by
Landlord and Tenant to be almolute, unconditional and without """"ption and to supersede any
SpecifIC repair obligation imposed upon Landlord hereunder.
lei tudlonl wlII d....d aDd. except to tile extat _d b, tbe ae...._. of
Teaaat. Ita a'.lIllta. -.rvaata. and emplo,e... will bulsmllllllJ' Teaaat aDd _ T.....t
~ &011I and IIplAIt ...y aDd aU olalm.. aotloDI, __,... IlabWtJ aDd __
(lncladlq, b.t aot Ibaltad to. attomey'. fee. and dIalnarMmeatalln ooallllSCtlollll witla tile
Joe8 of ute. penoaal ~lIry or dama,e to propert, or \>0......- uWlq Irom. relatad to. Dr In
_ wttIa tile ...........eat and coDtrol of the eommoa ...... of tile lIlloPPu.c CeDter
or _...._d wbolly or 1II put by act or omlulollll of 1~"1II""'. It. ooatractonl.
.1lboo.tIaCt..... ..bta....t.. Hcea.... or cOllcelltoDair... or Ita or tllelr reapecthe aceDta.
aernata or .mploy_ LuuIIord IIhalI also pay aD _to, expe_ ad r.uo_ble
attorlllley'. ro.. tllat may be expended Dr Incurred by Teaaat III ncceaaftllly .lIlllorolDc tile
coveDallta .... ..........ta of thiII Laue. The provlalo.... of thilllIectlollll 10.0111halI IlIrvive
tile t.....laatlollll or sarU.r aplratloD of the term of tJ&fa Le....
]8
D:IL'lIIILa.e ""Iea\Mn.IlIeId'o- TCBY (CCM).doelMrL Pidd.. TCD\' (<:eM)
ARTICLB Xl
IHIIl1RAKClt
SECTION 11.01. Insurance.
(al Tenant will keep in force in companies licensed to do buaine... in the state where
the Center is located at Tenant's expense at aU times during the term of this Lease and during
such other times as Tenant occupies the demised premises or any part thereof:
(I) Public liabili1;y insurance with respect to the demiaed premises, the aidewa1k8
abuttina and adjoining the demised premise.. if any. and the business operated by Tenant and
any subtenants, Iicen_s and concessionaires of Tenant in or from the demised premiae8 with
minimlU11 limits of One Million DoIlarB ($1,000,000) combined single limit for bodily irUury and
proper1;y damage, and including coverage for Iiabili1;y ..saumed under contracts.
.. (2) Worke.... Compensation insurance which will provide ror all Tenant'.
employees the statutory benetita for the st..te in which demi..d premises are located, and will
aIeo include Employers' Liabili1;y insurance with minimum limits of One Hundred Thousand
DoIlarB ($100,000.00).
(31 Such other type. of in.urance (excluding rent insurance in f..vor of Landlord)
and such additional amounts of insurance a., in Landlord's judgment, are neceositsted by good
bu.in.... prsctice.
(h) Prior to delivery of po.....ion of the demised premises and within ten (10) doys
of each occasion of renewal or replacement of insurance coverage. throughout the term of the
Le...., Tenant shall submit to Landlord. marked "Attention In.urance Department", a valid
Certificate of Insurance, signed by.an authorized agent of the insurer, which shall evidence all the
insurance coverage required by this Section II. 0 J and which shall ..t forth the following:
(1) Landlord is named an 'additional insured" on the public Iiabili1;y insurance
policy.
(2) At lea.t thirty (30) day. prior notice ohall be given to Landlord as to any
policy cancellation or any material alteration in coverage.
(3) The public liability in.urance policy i. an "occum:nce" fonn of coverage;
(clairn8-made insurance is not acceptable).
SECTION 11.02. Insurance Provision..
It i. a condition of this Lease that the Tenant shall in$lall and maintain, in proper
working order, an Underwriter's Laboratory and Rating Bureau approved Automatic
Extinguishing Sy.tem in the hoods and ducts serving .uch Tenant's cooking equipment and deep
fat fryers. The system shall also be arranged to .hut off the electrical current and! or ps supply
to the deep fat fryera when the extinguishing system is activsted. No change affecting the
operation of thi8 system ohallbe made without giving prior notification to the Landlord.
SECTION 11.03. Effect on Insurance.
(a) Tenant win not do. omit to do, or suffer to be done or keep or suffer to be kept
anything in, upon or about the leased premise. which will violate the provision. "of Landlord'.
policies insuring agilinst 108s or damage by fire or other hazards (including. but not limited to,
public liability), which will adversely affect Landlord's fire or liability insurance.premium rating or
which will prevent Landlord from procuring such policies in companie. acceptable to Landlord; .
provided Tenant is first given adequate notice of the requirements of such policies. If anything
done, omiUed to be done or suffered to be done by Tenant, or kept or 8uffered by Tenant to be
kept in, upon or about the premises .ha11 by itself or in combination with other circumstances
exi8ting at the Shopping Center cause the premium rate of rITe or other insurance on the leased.
premises or other property of the Shopping Center in companies acceptable to Landlord to be
increased beyond the established rate from time to lime rlXed by the appropriate underwriters
with regard to the use of the demised premises for the purpooes permitted under thi. Lease or to
8uch other property in the .Shopping Center for the use or use. made thereof, Tenant will pay the
amount of such incre..se or, in the event that other circum8tances existing at the Shopping
Center shall ha'\re ~ontributed to Sllch increase, such equitable portion of such increaee as
19
D:\Lcp1lLcue IIocU<t\Mn. Fldd'.. TCB\' (CCIII).do<lM.... FI.Jd.. TCB\' (CCIII)
reasonably determined by Landlord, as additional rent upon Landlord'" demand and will
thereafter pay the amount of such increase, as the same may v8JY from time to time, with respect
to every premium relsting to coverage of the demised premises during a period falling within the
term of this Lease until such .increase is eliminated. In addition, if applicable, Landlord may at
its option rectify the condition existing on the liemilled premisea which caused or waa a
contributing cau.e of the increa8Cd premium rate in the event that the Tenant should fail to do so
and may charge the cost of such action to Tenant as additional rent, psyable on demand. In
determining whether increased premiums are the result of Tenant's use of the leaaed premises, a
schedule, lsaued by the organization making the insurance rate on the leaeed premisea, sbowing
the various components of such rate, shall be conclusive evidence of the several items and
chargee which make up the fire in.urance rate on the lealled premiaea.
(b) If for any reason whatsoever including, but not limited to, the abandonment of
the demiaeei premiaea, Tenant's failure to pay the insurance .premium or Tenant's failure to
occupy the demised premises aa herein permitted, Tenant fails to provide and keep in force any or
all of the insurance policies set forth in Section 1 t .ot hereof, then in such event Tenant shall
indemnify and hold Landlord harmless against any loss which would have been covered by such
insurance.
(c) If Tenant ahaIl not comply with its covenants made in this Section, Landlord in
addition to Landlord's other remedies hereunder may (but shall not be obligated. to) cause
in.urance, as aforesaid, to be issueei, and in such event Tenant agrees to pay the premium for
such in.urance 8.8 additional rent promptly upon Landlord's demand, or Landlord, at its option,
may treat such failure to comply as a Deliberate Event of Default.
ARTICLE XU
UTILITIES
SECTION 12.01. .Utilitie..
(a) Tenant shaU be 80lely responsible for and promptly pay all chargee for Iieo&,
water (including etandby), elecbicity, sewer rents Or charges. epriBlder ~" '..P T. 8r ethtr
""'AD ~, water treatment facility charges, and any other utili1y used or consumed in the
leased premise. or in providing heating and air conditioning to the leased premi_, without
Umitation, together with all connection ..nei service charges anei all taxea or other chargea levied
on such utilitiea, aaid responaibility commencing on the date Landlord notifies Tenant that the
leased premises are ready fur Tenant's commencement of Tenant'. Work. Should Landlord eJect
or be required to supply or make available any utility used or conllllmed at the demilled premises,
Tenant agrees to purchase and pay for same, as additional rent, every month in the term hereof;
provided that Tenant shall not be obligated to pay to Landlord an aggregate annual sum therefur
in exce.. of the ll/l8fe8ate annual amount therefor which Tenant would otherwiSe be obligated to
pay for aimiIar utility usage. and service as a retail customer of the public uti1i~ or municipal
authority then supplying wch utility to the Center. Tenant agree. to purcha... from Landlord
and pay for electrlcl~ to be used by Tenant at the demised premiaea in accordance with the
Utility Schedule attached hereto... Exhibit "C".
{bl In the event that Tenant doe. not have a water meter installed in the leased
premises, Tenant will pay to Landlord, ..s additional rent, every month in the t<!tm of this Lease
the minimum charge for the size of the line installed in the leased premises in accordance with
the rate. established from time to time by the company or authority supplying water to the
premi.....
(cJ In the event the local authority. municipality, utili~ or other body collects for the
water and/or sewerage or sanitary service and{or..consumptionJ as aforesaid, Tenant covenants
and agrees to pay the water and sewer rent chsrge (both minimum and otherwise) and any other
tax, rent, levy, connection fee or meter or other charge wltich now or hereafter is assessed,
imposed or msy become a lien upon the demised premises, or the realty of which they are a part,
pursuant to law, order or regulation made or issued in connection with the U8C, consumption,
maintenance or eupply of water, or the water or sewerage connection Of system.
. (d) In no event shall Landlord be liable to Tenant in damages or otherwi.e for any
interruption, curtailment or auspenaion of any of the foregoing utili~ services in the event of a
default by Tenant under this Lease or due to repairs, action of public authority, strike., acts of
20
D:1Lc:pl1Leue B_n. Fleld'..TCBV (CCM).doe/Mn. FicldJ.TCBY (CCM)
God or public enemy I or any other cause, whether similar or disaimi.J.ar to the aforesaid.
SECTION 12.02. Al"llft1ir.ation For Utilities.
Tenant ""all make all appropriate applications to the local utility companies at ouch
timea al Ihall be necellary to inlure utilities being available at the demised pren1isel no later
than the commencement of the term and pay alt required deposits, connection feel and/or
chargel for meters within the applicable time period set by the local utility company.
SECTION t2.03. Ooeration of M..tin. and Air-Conditioninl<.
Tenant must operate heating and cooling equipment to maintain store temperatures at
such temperatures as will prevent the freezing or bursting of pipes and the draining of heated and
chilkd air from the enclosed mall.
SECTION 12.04. Utility CharRe Defined.
All sums to be paid by Tenant in accordance with this Article XII are collecti>ely herein
refeJTed to a. the "Utility Charge".
ART1CLE XID .
..
aTOPPBL C&ldIPICATE; 8V11ORDIlfATlOJI; ATTOIUOIBIIT
SECTION 13.01. Execution of Eatoonel Certificate.
At any time, and from time to time, upon the written request of Landlord or any
mortgagee, Tenant, within twenty (20) day. of the date of such written reque.t, ogree. to execute
and deliver to Landlord 8:JJ.d/or such mortgagee, without charge and in a form satisfactory to
Landlord and/or .uch mortgagee, a written statement: (a) ratifying this Lease; {bl confirming the
commencement and expiration datea of the term of this Lease; (cl certifying that Tenant is in
occupancy of the demised premises, and that the Lease is in full force and effect and has not
been modified, assigned, .upplemented or amended except by .uch writings a. .hall be .tated; (d)
certifying that all conditions and agreements unde< this Lease to be satisfied or performed by
Landlord have been satisfied and performed except as shall be .tated; (e) certifying that Landlord
is not in delllUlt under the Lease and there are no defenses or ofl'set. ....in.t the enforcement of
this Le.... by Landlord, or .tsting the defaults andlor defensea claimed by Tenant; (I) reciting the
amount of advance rent, if any, paid by Tenant and the date to which .uch rent has been paid; (gJ
reciting the amount of security deposited with Landlord, if any; (hI certifying compliance with the
environmental covenant. of the Lease as set forth in Section 5.03til of the Lease; and (ij any other
information which Landlord or the mortgagee shall require.
SECTION 13.02. Failure to ExeCute EstoDoel Certificate.
The failure of Tenant to execute, acknowledge and deliver to Landlord andlor any
mortgagee a .tatement in accordance with the provision. or Section 13.01 above within the period
.et forth in Section 13.01 shall con.titute an acknowledgment by Tenant which may be relied
upon by any person holding or intending to acquire any intere.t whatsoever in the demised
premises or the Shopping Center that this Lease has not been alsigned, amended, ehanllOd or
modified, is in full force and effe~tand that the Fixed Minimum Rent, Tax Rent, Tenant'l share of
Operating eo_, Utility Charge, Percentage Rent and additional rent have been duly and fuUY
paid not beyond the re.pective due dates immediately preceding the date of the reque.t for .uch
.tatement and shall con.titute as to any per.ons entitled to rely on such .tatements a waiver of
any defaults by Landlord or defen.e. or offsets against the enforcement of this Lease by Landlord
which may exilt prior to the date of the written request, and Landlord. at its option, may treat
such failure as a Deliberate Event of Default.
SECTION 13.03. Subordination and Attornment.
Tenant agree. lal that, """ept as hereinafter provided. this Lease i., and 011 of Tenant'.
riithts hereunder are and shall always be, .ubject and subordinate to any mortgage, Ie..,. of
Landlord'. property (in sale-leaseback) pursuant to which Landlord has or .hall retain the right of
po8IIession of the demised premises or security instruments (collectively called 'Mortgage') that
now exist, or may hereafter be placed upon the demised premises or the Sl10pping Center or any
part thereof and to all advance. made or to be made thereunder and to the intere.t. thereon, and
21
D:ILcpI\Leo.. _<l\Mn. Fldd'.-TCBY (CCM).dO</M". Fi<ld..TCBY (CCM)
all renewals, repla"cementB, modifications, consolidations, or extensions thereof; and (hI that if the
holder of any such Mortgage ("Mortgagee"), the purchaser at any foreclosure sale or at any sale
under a power of sale contained in any Mortgage, or the owner, at the time of the hereinafter
described request, of the fee estate or the leasehold estate of the real estate upon which the
demised premiees is situate (hereinafter referred to as Landlord for purposes of this Section) sbaI1
at its sole option 80 request, Tenant will attorn to, and recogniZ"e such Mortgagee, purchAser, or
Landlord, as the case may be, ... Landlord under this Lease for the balance then remaining of the
term of this Lease, subject to all terms of .this Lease; and (c) that the aforesaid provisions shall be
self operative and no further instrument or document shall be neceSBaIy unless required by any
such Mortgagee, purchaeer, or Landlord. Notwithstanding anything to the conl:ra1'y set forth
above, any Mort:pgee may at any time subordinste its Mortgage to this Lease, without Tenant's
consent, by execution of a written dOCUment subordinsting such Mortgage to this Lease to the
extent ...t forth therein; and thereupon this Lease shall be deemed prior to such Mortgage to the
extent set forth in such written document without regard to their respective elates of execution,
delivery andlor recording and in that event, to the extent set forth in such written document
such Mortgagee shall baw: the same rights with respect to this Lease as though this Lease had
been executed. and a memorandum thereof recorded prior to the execution, delivery and recording
of the Mortpge and as though this Lease had -beer. assigned to sueh Mortgagee. Should
Landlord or any Mortgagee or purchaser desire confirmation of either such au bordination or such
attornment, as the case may be, Tenant upon written request, and from time to time. will execute
and deliver without charge and in form satisfactory to Landlord, the Mortgagee or the purcbaser
all instrumentB and/or documents that may be requested to acknowledge such subordination
andlor agreement to attorn, in f<lCordable form.
ARTICLE XIV
A8810KMItlIT AJIID BUBLETTIlIO
SECTION 14.01. AR.wmment and Sublettin2.
(a) Tenant shall not voluntarily, involuntarily, or by operation of Jaw, assign,
transfer, mortgage or otherwise encumber (herein collectively referred to ss an 'a88ignment") this
Lease or any inte_t of Tenant herein, in whole or in part, nor sublet the whole or any part of the
demised premisea, nor permit the demised premises or any part thereof to be used or occupied by
otherll, without first obtaining in each and every instance the prior written consent of Landlord.
Any consent by Landlord to an assignment or subletting or uee or occupancy by others shall be
held to apply only to the specific transaction thereby authorized and shall not constitute a waiver
of the necessity for such consent to any subsequent assignment or subletting or use or
occupancy by otbenl, including, but not limited to, a subsequentllll$ig.tunent or subletting by any
trustee, receiver, liquidator, or personal representative of Tenant, nor sbaI1 the references
anywhere in this Lease to subtenants, licensees snd conce88ionalrea be conStrued ... a consent
by Landlord to an assignment. If this Lesse or any interest herein be aaaigned or if the demised
premises or any part thereof be sublet or used or occupied by anyone other than Tenant without
Landlord's prior IIVritten consent having been obtained thereto, Landlord may nevertheless coJIect
rent (including, but not limited to, Fixed Minimum Rent, Percentage Rent, the Utility Charge, Tax
Rent, Tenant's proportionate share of Landlord's Opere.ting Costa, and additional rent) from the
assignee, sub\eS8ee, user Or occupant and apply the net amount coUected to the rents herein
reserved, and furthermore in any such event Tenant shall Pay to Landlord monthly, as additional
rent, the excess of the considere.tion received or to be received during such month for such
assignment, sublease, or occupancy (whether or not denoted as rent) over the rental reserved for
such month in this Lease applicable to such portion of the demised premises 80 assigned, sublet
or occupied. No such assisnment, subletting. use, occupancy or collection shall be deemed a
waiver of the covenant herein against assignment, subletting or use or occupancy by othera, or
the acceptance of the assignee, subtenant, user or occupant atI Tenant hereunder, or constitute a
release of Tenant from the further performances by Tenant of the terms and provisions of this
Lease. If thi. Lease or any interest of Tenant herein be assigned or if the whole or any part of the
demised premises be sublet or used or occupied by others, after having obtained Landlord's prior
written consent thereto, Tenant shall nevertheless remain fully liable for the full performance. of
all obligations under this Lease to .be performed by Tenant and Tenant shall not be released
therefrom in any manner.
22
D:1L<p1\LoH lIodlet\Mn. Fltld',.TC8Y (CCM),dodM". F;.ldo-TCBY tCCM)
(bl If at any time dunng the term of this Lease any part or all of the corporate shares
of Tenant, or of a parent corporation of which Tenant is a direct or indirect subsidlaJy, shall be
transferred by sale, assignment, bequest, inheritance, operation of law or other disposition SO as
to result in a chan~ in the present clfective voting control of Tenant or of such parent.
corporation by the porson or peraons owning or controlling a tnljority of the shares o(Tenant or
of such parent corporation on the date of this Lease, Tenant shall promptly notify Landlord in
writing of such change, and such change" in voting control shall constitute an assignment of this
Lease for all purposes of this Section; provided, however, that this provision shall not appJ,y in the
event that over fifty porcent (50%1 of the voting power of the Tenant corporation or of such parent
corporation is held by frl'ty (SOl or more unrelated shareholders or distributed to such number of
unrelated shareholders in a public clistribution of securities. This clause shan not apply to a
corporation whose ..tock is traded in a nationally recognized stock exchange.
(c) If Tenant Is a partnership and if at any time during the term of this Lease any
person who at the time of the execution of this Lease owns a general partner. interest ceases to
own such general partner's interest, such cessation of ownership shall constitute an assignment
of this Lease for all purposes of this Section.
(dl Upon the occurrence of any of such events.. described in Section 14,OI(a),
14.01(b), or 14.01(c) hereof, whether voluntary, involuntary, by operation of law, or otherwise,
without the prior written consent of Landlord (whether or not Tenant shall have given notice
thereof to Landlord), Landlord may treat any such occurrence as a Deliberate Event of Default.
SECJ10N 14.02. ADolication to Assian or Sublet.
In the event that Tenant should desire to assign or sublet the whole or a part of the
leased premises, Tenant shall submit to Landlord a written statement, signed by Tenant, setting
forth the following information:
(al The name and address of the proposed assignee or subtenant and the character
of its business;
(b) The activities to be conducted in and tpe use to be made of the premises by the
proposed ..signee or subtenant;
(c) A full and complete outline of all of the terms and conditions of the proposed
assignment or subletting;
(d) Such fmancial information and credit information pertaining to the proposed
assignee or subtenant suftlclent to enable Landlord to evaluate its financial responsibility;
(e) A representation that the proposed assignee or subtenant is not a tenant,
subtenant, aesiBnee or occupant of any space in the Shopping Center.
During a period of thirty (30) days after receipt by Landlord of the foregoing information,
Landlord may elect (1) to consent to such proposed assignment or subletting; or (2) to refuse or
withhold consent to .uch assignment or subletting; or (3) tenninate this Lease, in which event
this Lease Bball terminate and end upon thirty (30} days' written notice of Landlord'. decision to
so terminate. Such election may be exercised by written notice set"\fCd upon Tenant Within such
thirty (30) day period, but if no such notice is served, it shall be deemed that Landlord has elected
to refuse or withhold consent of the proposed assignment or subletting. Landlord agrees not
unreasonabJ,y to refu.e or withhold consent to .uch proposed ll8.ignment or subletting, but it
shall conclusively be deemed that Landlord's refusal or withholding of consent is not
unreasonable if the proposed assignee Or su btenant, or the chllracter of the business of the
proposed usignee or subtenant, or the use for which the proposed assignee or subtenant is to
occupy said premises, or any of them, is in Landlord's sole discretion leas desirable; and it shs.ll
conclulliveJ,y be deemed that Landlord's refusal or withholding of consent is not unreasonable if .
the sublease rent is greater than the rent payable under this Lease, unless Tenant agrees in
writing that such excess shall be paid to Landlord.
SECTION 14.03. CODY of Assilii1ment or Sublease.
Landlord's consent to any assignment or sublease shall not be elfective until one (1) fully-
executed copy of any written instrument of assignment or sublease has been delivered to
Landlord.
23
D:lL<col\Leue _..1M... _'J- TCBY (CCM).doclMn. Field.. TCBY (CCM)
ARTICLE XV
1IBRCBAlII'1'Il' A8lJOCJATlOB; PROIIOTJOIf r11JID; ADVBRTI8J11G
SECI10N 15.01. Merchants' A.onciation, Promotion Fund and Advertillin2,
la) Tenant covenants and ag1'ees to become a member of any Men:hants' Asoociation
formed by the tenants of the Shopping Center and approved by Landlord, and to maintain such
membenhip throughout the term of this Lease. Tenant further agrees to pay .... its ohare of the
coat of the activitie. conducted by such association the sum Bet forth in Section "J" of the
Indenture of Le8.lIe or such other sum as shall be determined by the Merchants' Aa.ociation,
hereinafter relerred to as "Merchants' Association Payment", payable in advance in monthly
. in.tallments to the Merchants' Aasociation, If Land[ord elects, Landlord may collect said
Merchants' Aoeociation Payment on bel!alf of the Merchanto' Aaoociation in which caoe Tenant's
Merchants' Aaaociation Payment shall be payable monthly together with installments of Fixed
Minimum Rent. [n addition, should Tenant fail to make any .uch Merchants' Aoeociation
payment. when due, Landlord, on behalf of the Merchants' Aseociation, may collect said
payments in the oame manner and with the same rights granted to Landlord under the Le8.lIe lor
the collection ol rent or other charges. Commencing with the second Leaoe Year, and each Lease
Year thereafter, the Merchants' Association payment shall be adjusted in the manner set forth
below, but never Ie.. than the above amount. The amount of the Men:haniB' Aoeociation
payment for each Lease Year, commencing with the second Lease Year, shall be determined 8.8
lOllows: Using the 'Consumer'. Price Index -- U. S. Average, AU Item and Commodity Group.",
published monthly in the "Monthly Labor Review' by the United States Department of Labor, lor
the month and year during which the Lease was executed a. the denominator and the index
number for the first month of each Lease Year therealtcr as the numerator, multiply said
resulting fraction times the above stated Merchants' Aaaociation rate. [n the event that the
Bureau ol Labor Statistica shall change the baBe period, the new index numbe", shall be
substituted for the old index numbers in making the above computation. In the event the
Consumer'. Price Index of the United States Bureau ol Labor Stati.tica is diocontinued,
comparable statistica on the purchasing power of the consumer dollar as published at the time of
said discontinuation by a re.ponaible financial periodical ol recognized authority shall be used for
making .uch computation. Tenant also agrees to cooperate fuUy with the Landlord and other
tenants of the Shopping Center in promoting the use of trade names and slopns ss may be
adopted for the Shopping Center, and all promotional and advertising campaigns, and pay any
special """,,ssmeniB as are required by the Merchants' Association. Within thirty (30) days alter
billing, Tenant agrees to pay in addition to the foregoing duea, a single initial asseaament equal to
the amount set forth in Section . J" of the Indenture of Lease for promotional expenses in
introducing the shopping center to the market area, Tenant agreea that Landlord or its designee
may in ita sole discretion and under its exclusive control and supervision provide the association
with any or aU of, and be reimbursed by the assOciation for providing the following; (ij the oervicea
ol a marketing director and all starr and outside consultants (including professional marketing
service organiationa) deemed necessaI}' by Landlord to carty out effectively the marketing and
public relationa objectives of the Merchants' Association including, without limitation, all payron,
payroll taxea and employee benefits of any such director and staff; (u) such reasonable amount of .'
space within the shopping center as may be necesssI}' for the Merchants' Association, the rental
therelor to be complll1lble to the rentals for similarly Ilized tenant space in Landlord'. building;
(ill) all actual costa ineuned in advertising and promoting the Shopping Center, including without
limitation radio, newspaper, television, direct and indirect costa of services, artWork, copy,
printing, paper, stationeI}' and supplies; and (iv) such office equipment, utilities and telephones
as may be deemed nece"""'Y by the marketing director.
(hJ Notwithstanding that Landlord may form the A88OCiation as set forth above,
Landlord or the Landlord's designee reserves the right at any time and from time to time, without
Tenant's consent or approval. to institute in its place a Promotion Fund to furnish and maintain
advertising and sales promotions for the benefit of all tenants of the Shopping Center, Upon
lormation of the Promotion Fund, the Association will turn over all amounts in its possession to
Landiord or the LandJord....designee which will open and maintain a bank account, separate from
all of its other baJ1k accounts, into which Landlord or the Landlord's designee shall deposit the
promotion fund contribution paid by Ten.snt, the aforesaid amount received from the Association,
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D:lLclaIILeoIe BodIet\Mn. Field'.. TCBV (CCM).doelMrs. Fie""" TCBV (CCM}
as wellll.8 other contributions which Landlord or the Landlord's designee may receive from time to
time from other tenante of. the Center (the aggregate of such funds on hand from time to time
being referred to herein as the "Promotion Fund"). Upon turning over such funds to Landlord or
the Landlord's de8icnee, the ....soclation shall be liquidated end dissolved. Commencing with the
formation of the Promotion Fund, and. thereafter while the Promotion Fund. is in lll<iatence, Tenant
shall pey to Landlord or the Landlord's d.esicnee, as Tenant's contribution to the Promotion Fund,
the inilial chlU'll" and an annual charge ('Promotion Charge'l which shall be in the same
amounts, including anyCPl adjustments, as the assessment Tenant would. be required to pay to
the Asaociation if the same was in effect, except that the ennual charge shall be payable monthly
together with installments of Fixed Minimum Rent. The Promotion Fund shall be used by
Landlord or the Landlord's designee to pay all costs and. expenses aasociated with the
implementation of an ongoing progr:am for the promotion of the Shopping Center, which program
may includ.e. without limitation, special events. sho...... displaya. signs, seasonal evenl8,
institutional advertising for the Shopping Center. Promotional litNllture and other activities
designed to attract customers to the Shopping Center. In connection with the operation of the
Promotion Fund, Landlord or the Landlord's designee shal1 have the right to employ or cause to
be employed all promotional services and personnel which. in the judgment I)f the Landlord or the
Landlord's designee. are neceseary to administer such fund and such promotional activities, and
such personnel sha11 be under the exclusive control and supervision of Landlord or the Landlord's
designee who shall have the sole authority to employ and discharge such personnel. The
Promotion Fund may also be used to defray the cost of administration of the Promotion Fund and
such advertising programs including, without limitation, the saJary of the promotion and
adverti8inll director end related administrative personnel, rent and insurance. Landlord shall
have no obligation to expend on wch ongoing programs any funds in excess of the annual sums
contributed to the Promotion Fund after payment of all such administrative and other expenses.
(cl All sums required to be paid by Tenant pursuant to this Article XV shall be
deemed "additional rent", shall be payable without demand, deduction or offset, and for the
purposes of Articles XVDI and Xl.X of this Lease shall be referred to aa the Promotion ChlU'll".
(d) Notwithstanding anything to the contraIy contained herein, Landlord or the
Landlord's designee ree"""'s the right, from time to time upon written notice to Tenant. to convert
the Association Or Promotion Fund to any other entity selected by Landlord or the LandIord's
designee to perform the oervices theretofore performed by the Association or Promotion Fund.
Upon the formation of such entity. the provisions of Sections (a) and/or (h) hereof which are then
in effect shal1 cease and become null and void. and thereafter Tenant shall comply with the
charter or by-laws of such new entity. Tenant shall pay to such new entity, Landlord. or the
Landlord's designee, as directed by Landlord or the Landlord's designee, the paymenl8 theretofore
required to be paid by Tenant to the Association or Promotion Fund.
Ie) If the Shopping Center, as initially constructed, shall be expaneled by adding noor
area equal to more than ten percent (10%) of the noor area initially contained in the Shopping
Center, Tenant shall pay to Landlord. on demand. an amount determined by Ii) multiplying the
noor area of the demised premise. by the average rate per square foot of sll contribution. which
tenants of the expansion area shall become obligated to make with respect to promotion and
advertising of the initial opening of such expansion for business. and (ii} dividing the product
thus obtained by two (2).
ARTICLE XVI
DB8TRUCTIOII OF LEASBD PRBIII8BII
SECTION 16.01. Tot&! or Partial Destruction.
(a/ If the leased premises shall be damaged by fire or other casualty covered by
Landlord's policies of lire and broad fonn ""tended coverage insurance but sre not thereby
rc:ndered untenantable in whole or in part. subject to the limitations hereafter set forth. Landlord,
at its own expense, may cause such damage to be repaired, and the rent sha1l not be abated. If
by reason of such occurrence, the premises .hall be rendered untenantable in whole or in part,
subject to the limitations hereafter set forth, Landlord, at its own expense, may cause the damage
to be repaired and the Fixed Minimum Rent shall be abated proportionately as to the portion of
the premises rendered untenantable until the completion of Landlord'. repairs thereto. If the
leased premises shall be damaged or destroyed by a fire or casualty, in whole or in part. and the
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D:\UpI\Lcu< _1M... Jildd'..TCBY (CCM).dD<iM.... Fj,ld.- TCBY (CCIII)
Landlord, at ita option, decides not io repair and restore the premises, Landlord shan have the
right, to be oxereioed by notice in writing delivered to Tenant within six1;y (60) days fiom and after
the oc:currence of such damage or destruction, to cancel and terminate this Lea.., Either party
shall have the right, to be exercised by notice in writing, delivered to the other within thirty (301
days from and after any occurrence which renders the premises wholly untenantable to cancel
this Lease, if sai<I destruction of the premises occurs within the last three (3) years of the ternI of
this Le..... sai<I canceUation to take effect ninety (901 days from and wr the receipt of such
notice by the other porty, and in such event this Lease and the tenancy hereby created sball
cease as of the afore88.id cancellation date, the rent to be adjusted as of such date; provided.
however. that if Landlord sha1I commence repairs or reconstruction of the destroyed premiaea
during the period prior to the cancellation date, the tenancy ohal1 remain in effect and sai<I notice
of canceUation shall be considered void. In no event shall Landlord be oblip.ted to expend for any
repairs or reconstruction pursuant to this Section 16.01 an amount in eJ<Ceas of the insurance
proceeds recovered by it and allocable to the damage to the leaaed premises wr deduction
therefrom of Landlord's reaoonable expens... in obtaining such proceeds and any &.mounta
required to be paid to Landlord'a mortgsgee. Nothing in this Section shan be construed to permit
the abatement in whole or in part of the Percentage Rent, and the calculation of Percentage Rent
shall be governed solely by Section 2.01(c) hereof.
(b) If the Landlord is required to repair or reconstruct the leased premises pursuant
to the provisions of this Section 16.01, its obligation shall be limited to the building shell. Tenant
at Tenant's expense sha1I promptly perform all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the demised premises and commence doing business in
accordance with the provisions of this Lease. Landlord shall not be liable for delays occasioned
by acljustment of Ios..s with insurance carriers or by any other cause 80 long as Landlord shall
proceed in good faith.
(cl Notwithstanding anything set forth herein to the contnuy, Tenant shan be
. responsible for all repairs and replacements 01 damage and I or destruction of the leased premises
necessitated by burglary or attempted burgla!)", or any other illegal or forcible entry into the
demised premiees.
SECTION 16.02. Partial Destruction of ShopDinll Center.
In the event that fifty percent (50%) or more of the gross leasable floor area of the
Shopping Center shall be damaged or destroyed by flfe or other cause notwithstanding that the
leased premises may be unaffected by such flfe or other cause, Landlord shall have the right. to
be exercised by notice in writing delivered to Tenant within six1;y (60) days wr sai<I occurrence,
to cancel and terminate this Lease. Upon the giving of such notice. the term of this Lease shall
expire by lapse of time upon the fifteenth (15th) day after such notice is given and Tenant shall
vacate the leaaed premises and surrender the same to Landlord.
ARTICLE XVII
EMIIfEKT DOMAIR
SECTION 17.01. Total Condemnation.
If the whole of the demised premises shall be taken by any public or quaai-public
authority under the power of eminent domain, condemnation or expropriation, or in the event of a
conveyance in lieu thereof. then this Lease shall terminate as of the date on which po_ion of
the demised premises is required to be surrendered to the condemning authority, and Tenant
shall have no claim spinst Landlord or the condemning authority for the value of the unexpired
term of this Lease.
SECTION 17.02. Partial Condemnation.
It any part ot the leased premises shall be so taken or conveyed and if such partial taking
or conveyance shall render the leased premises unsuitable for the business of the Tenant, then
the term of this Lease shall cease and terminate as of the date on which possession of the
demised premises is required to be surrendered to the condemning authority and Tenant shall
have no claim qainst Landlord or the condemning authority for the value of any unexpired term
of this Leaae. In the event such partial taking or conveyance is not extensive enough to render
the premises unsuitable for the business of Tenant, 'this Lease shall continue in full force and
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D:\L...,N.eut BodIa\Mn. FIeld'.. TeBY (CCM).dO</Mn. FI<ld.-TCBY (CCM)
effect excopt that the Fixed Minimum Rent and the Percentage Rent Gross Sales Base shall each
be reduced in the same proportion that the floor area of the demised premises 80 taken or
conveyed bears to such floor area immediately prior to such taking or conveyance, such reduction
commencing as of the date Tenant is required to surrender .posseasion of such portion and with
respect to the days during which the demised premises are not open for busine88 the calculation
of Percentase Rent shall be adjusted in accordance with Section 2.01(c) hereoL Landlord shall
promptly restore the leailed premi...., to the extent of condemnation proceeds available for such
purpose, as nearly as practicable to a condition comparable to their condition as the time 01 such
condemnation Ie.. the portion lost in the taking or conveyance and Tenant shall promptly make
all necesury repaint, restoration and alterations of Tenants fIXtUres, equipment and furnishings
and ahalJ promptly ..-enter the leased premises and commence doing business in. accordance
with the provisions of this Lease. For purposes 01 determining the amount of funds available for
restoration of the leased premises Iromthe condemnation award, 88id amount win be deemed to
be that part of the award which remains after payment of L8ndlord's reasonable expenses
incurred in recovering II8Dle and of any amounts due to any monpsee of Landlord, and which
represents a portion of the total sum 10 available lexcluding any award or other compensation lor
land) which is equitably allocable to the leased premises.
SECTION 17.03. _1 Condemnation of ShoDoinR Center.
(a) If more than one-third 11/3) of the floor area of the buildings of which the
demised premises are a part or more than one-third 0/3) of the leasable floor area of the
Shopping Center or more than one-third (1/3) of the Common Areas shall be so taken or
conveyed, or (11) if any part of the parking area in the Shopping Center is 80 taken or conveyed
and as a result of such partial taking or conveyance the s;.:e, layout or location of the remaining
parking facilities will violate the requirements 01 the applicable zoning or almiIar law (or any
permitted variance or exception thereto), then in any or all such eventa notwithatancUng the fact
thst the demised premises are not 80 taken or conveyed, Landlord shall have the right Qnd power,
at ita option to be exercised by written notice to Tenant, to terminate this Lease effective either
the date title vesta in the condemning authority or the date Landlord is required to deliver
posseasion of the part 80 taken or conveyed; provided, however, in the event of a taking or
conveyance deocribed in clause (b), if Landlord shall take immediate steps towards eliminating
such violation, this Lease ahalJ be unaffected and remain in fun force and effect. In any event,
Tenant shall have no claim against Landlord or the condemning authority for the value of any
unexpired term of this Lease.
SECTION 17.04. Landloni's DomARes.
In the event of any condemnation or taking as hereinbefore provided, whether whole or
partial, the Tenant ahalJ not be entitled to any part of the award as damages or otherwise for such
condemnation and Landlord and any mortgagee 01 Landlord are to receive the full amount 01 such
award as their respective interests may appea,r. Tenant hereby expl'Csaly waives any rilht or
claim to any part thereof and a88igns to Landlord any such right or claim to which Tenant might
become entitled.
SECTION 17.05. Tenant's Dama""s.
Although all damages in the event of any condemnation are to belong to the Landlord and
any mortgagee of Landlord as 8foresaid, whether such damages are awarded as fun compensation
for diminution in value of the leasehold or to the ree of the leased premiaes, Tenant shall have the
right to the extent that same ahalJ not diminish the Landlord's or such mortgasee's award to
claim and recover from the condemning authority, but not from Landlord or such mortpgee,
such compensation as may be separately awarded or recoverable by Tenant under the Eminent
Domain Code in Tenant's own right for or on account of, and limited solely to, any coat to which
Tenant might be put in removing Tenant's merchandise, furniture, fixtures, and equipment.
ARTICLE XVlU
BANKRUPTCY OR IIlSOLVEI'ICY
SECTION 18.01. Banknlntcv or Insolvencv.
(a) If at any time prior to the date herein fiXed as the commencement of the term of
27 .
D:\LoIIllLea.. BodIulMn. Fleld',-TCal' (CCM).dO<lMn. Fi,ld.. Tcal' (CCM)
this Lease or at any time thereafter there shall be flied by or against Tenant in any court
pursuant to any statute either of the United States or of any state, a petition in inoolvency, or if
Tenant makea an aaaignmcnt for the benefit of creditors or if there is an 8asianmenl by operation
of law, or if Tenant makes application to Tenant's creditors to settle or compound or extend the
time for payment of Tenant's obligation, or if any execution or attaChment ~alI be levied upon
any of the Tenant's property or the demised premises are taken or occupied or attcmptell to be
taken or ~pied by oomcone other than the Tenant, then this Lease shall at the Landlord's
option be cancelled and terminated and, in which event, neither Tenant nor any pcroon claiming
through or under Tenant or by virtue of any statute or of an order of any court shall be entilled to
posscs.ion of the demised premises.
(bl If at any time prior to the date herein fIXed as the commencement of the term of
this Lease or at any time thereafter there shall be fUed by or against Tenant in any court of the
Uniied States a petition in bankruptcy or for reorganization or for the appointment of a receiver or
truatee of all or a.portion of Tenant's property, then this Lease shall at the landlord'. option be
cancelled and terminated if such cancellation or termination is permitted by the applicable law. If
such termination or cancellation is not permitted by the applicable law, then: (II upon the filing of
a petition by or apin.t Tenant under the Bankruptcy Code, Tenant, as debtor and aa debtor in
poss.-.;....., and any truatee who may be appointed, agree to perform each and evuy obligation of
Tenant under this Lease until such time as thi. Leaoc i. either rejected or assumed by order of
the United States Bankruptcy Court; and to pay monthly in advance on the first day of each
month sa rcaoonable compenaation for use and occupancy of the Premises an amount equal to all
Annual Minimum Rent and Additional Rent; and to reject or assume this Leaoc within sixty (60)
da,ys of the filing of such petition under the Bankruptcy Code; and to give Landlord at least forty-
five (45) da,ys prior written notice of any proceeding relating to any aaeumption of this Lease; and
to give at least thirty (30) c1aya prior written notice 01 any abandonment of the Prernlscs; any such
abe.ndonment to be deemed a rejection of thi. Leaoc; and to do all other things of benelit to
Landlord otherwise required under the. Bankruptcy Code; and to be deemed to have rejected thi.
Lease in the event of the failure to comply with any of the above; and to have con8CIlted to the
entry of an order by an appropriate United States Bankruptcy Court providing all of the above,
waiving notice and hearing of the entry of same; (Ii) no default of thia Leaae by Tenant., either
prior lQ or subecquent to the filing of such a petition, .hall be deemed to have been waived unless
expre8flly done 10 in writing by Landlord; (iii' it is understood and agreed that this is a Leaae of
real property in a shopping center and of nonresidential real property as such a leaae is deacribed
or referred to in the Bankruptcy Code; (Iv) included within and in addition to any other conditions
or obligations imposed upon Tenant or its successor in the event of assumption andlor
aoaignment are the cure of any monela1y defaults and the reimbursement of pecuniaIy los.
within not more than thirty (30) days of assumption and{ or assignment; and the deposit of an
additional sum equal to three (3) months' Rent; and the uoe of the Premi... as oct forth in the
Indenture of thia Leaoe and the quality and/or lines of merchandioc of any goods or acmc..
required to be offered for sale are unchanged; and the reorganized debtor or assignee of ouch
'debtor in po88Casion or of Tenant's trustee demonstrates in writing that it haa sufficient
background inc1udil1ll. but not limited to, substantial retailing experience in shopping centero of
comparable size and fmancial ability to operate a retail e.tabli~ment out of this Leaae; and the
Prcmiaea, at aU times# remains a single store and no physical changcs af any kind may be made
to the Premises unle8ll in compliance with the applicable provisions 01 this Lea.e.
ARTICLE XIX
BVBBT8 OF DEFAULT; LANDLORD'S JlBIIBI)IBS
SECTION 19.01. Events of Default.
The following shall constitute Events of Default:
(a) If Tenant defaults in the payment of any sum of money (whether Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate ohare of Operating Co.ta, the Utility
Charge, Promotion Charge, additional rent or otherwisel when due and such default shall
continue for a period of more than ten (10) day. after the dateBaid payment is due.
(1)) Except as to acts, defaults, o"1i.slons and/or occUlTCnces characterized, defined,
denoted, or identified in this Lease a. Deliberate Events of Default, if Tenant defaulta in fulfilling
any of the other covenants of this Lease on Tenant's part to be perfonned hereunder and such
28
n'\LfpI\L....._\M... Fltld'.TCBY (CCM).doC/Mn. Fi,lds- TCBY (CCIII)
default shall continue for the period within which perfonnance is required to be made by s~fic
provision of this Lease, or, if no such period is provided, fifteen (15) days after the date of wntten
notice from Landlord to Tenant specifying the nature of said default, or, if the default so specIfied
shall be of such a nature that the lSSllte cannot be reasonably cured or remedied within said
fIfteen (15) day period, if Tenant shaD not in good faith have commenced the curing or remedying
of such default within such fifteen (15] day period and shall not thereafter diligently proceed
therewith to completion.
(c) If any execution or attachment shall be issued apinst Tenant or any of Tenant's
property lU1d shall not be discharged or vacated within ten (10) days after the issuance thereof.
Cd) Any event described in Section 18.01.
Ie) If Tenant shall abandon the demised premises or if the demised premises shall be
permitted to become vacant, or shall fail to keep the demised premises continuouo.ly and
uninterruptedly open for business.
SECTION 19.02. Deliberate Events of Default.
(a) Notwithstanding anything to the contra'Y set forth in this Lease, if Tenant shall
default It) in the timely payment of Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant's
proportionate share of Operating Costs, the Utility Charge, or Promotion Charge or in the timelY
reporting of Gro... Sales or any of them, and any such default shall be repeated two (2) times in
any period of twelve (12) months; or (2) in the performance of any other covenant of this Lease
more than three (3) times in any period of twelve (12) months, then, notwithstanding that such
defaults shall have been cured within the period after notice as above provided, any further
similar default within such twelve (12) month .period shall be deemed to be a Deliberate Event of
Default.
(b) Any default. act, omission or occurrence characterized, defmed, denoted, or
identiflCd elsewhere in this Le""" as a Deliberate Event of Default shall also be a Deliberate Event
of Default.
(c) in the event of a Deliberate Event of Default, Landlord, without giving Tenant any
notice and without affording Tenant an opportunity to cure the default (Tenant hereby specifical1y
waiving any right of tender) may exercise any or all of ita rights under this Lease in addition to
those it may have at law or in equity.
SECTION 19.03. Termination.
Upon or after the occurrence oC any one or more of such Event of DeCault or Deliberate
Events of Default, if the term shall not have commenced, Landlord may immediately cancel this
Lease by written notice to Tenant, or if the term shall have commenced Landlord may serve upon
Tenant a written notice that this Lease and the term will termina.te on a date to be specified
therein, which shall not be less than ten (10) days after the date of such notice and, in either
event, Tenant 8ha1l hsve no right to avoid the cancellation or termination by payment of any sum
due or by other performance oC any condition, term or covenant broken. Upon the date specified
in the aforesaid notice of termination, this Lease and the term hereof shall terminate and come to
an end as fully and completely as if such date were the day herein defmitely fixed for the end and
expiration of this Lease and such term, and Tenant shall then quit and surrender the demised
premises to Landlord, but notwithstanding any statute, rule of law, or decision of any court to the
contnuy, Tenant shall remain liable as set forth hereinafter. Notwithstanding Landlord's election
to terminate this Lease, Landlord may, a.t its option, reinstate this Lea.. at any time thereafter,
and a letter from Landlord, Agent or the attorney for Landlord or Agent setting forth Landlord's
exercise of its option to reinstate the Lease shall be suff"tcient to reinstate this Lease upon all of its
terms and condition.., without any other notice to or from either party to the other.
SEcrJON 19.04. Riaht of Possession.
Upon or after anyone or more Events of Default or Deliberate Events of Default; or if the
notice provided for above in Section 19.03 hereof shall have been given and this Lease shall be
terminated; or if the demised premises become vacant or desertedj then. in all or any of such
events, in addition to. and not in lieu of. all other ~medje8 of Landlord, Landlord may without
notice terminate all seM/ices (including, but not limited to, the furnishing of utilities) and/or re-
enter the demised premises, either by force or otherwise. and/or by summa'Y proceedings or
otherwise dispossess Tenant and the legal representative of Tenant or other occupant oC the
demised premises. and remove their effects and reposseS$, and enjoy the demised premises,
29
.D,ILq.llle... BodIes\MrI. FI.ld'.. TOY (CCM~doe/M... Fi"d>- TCBY (CCM)
together with all a1~tion., additions and improvements, all without being liable to prosecution
or damages therefor. . .
SECTION 19.05. Additional Remedies 01 Landlord.
(a) In the event 01 any Event of Default, Deliberate Event of Default, re-entry,
tennination and/or dispossession by summary proceedings or otherwise, in addition to, and not
in lieu of, all other remedies which Landlord has under this Lease, at law or in equi1)': (1) the
Fixed Minimum Rent shall become due thereupon and be paid up to the time of such re-entry,
dispossession andlor expiration; and (2)Landlord may, in its sole discretion, relet the demised
premises or any pm or parts thereof, either in the name of Landlord or otherwise, for a term
which may at Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease, and may grant concessions or free rent;
provided, however, Landlord is expreasly under no obligation to relet the demised premises; and
(3) Tenant or the legal representative of Tenant shaU allO pay Landlord, at Landlord's option and
whether or not Landlord has terminated or ClIncelled this Lease, as liquidated damages for the
lailure of Tenant to observe and perform said Tenlll1t'. covenants herein contained, for each
month of the period which would otherwise have constituted the balance of the term, the excess,
if any, of the sum of one monthly installment of Fixed Minimum Rent, one-twelfth II/12thl of the
annual average Percentage Rent payable hereunder lor the three (3) lease years immediately
preceding (or lor the entire preceding portion 01 the term of this Lease if less than three (3) lease
yesrsl, the monthly portion 01 the payment of Tax Rent that would have been payable lor the
period in question but lor such re-entry or termination, the Utility Charge Payable for such
month computed on the basis of the average monthly charge for the said three (3) preceding lease
years or entire preceding portion of the term, as the case may be, the monthly payment of
Tenant's current proportionate share of Operating eoSt3, the Promotion Charge computed on a
monthly baais over the net amount, if any, 01 the rents actually collected on llCCOunt of the lease
or leases 01 the demised premises for such month. The refusal or failure of Landlord to relet the
demised premises. or any part or part3 thereof shall not retease or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said deficiency such
expenses 8.8 Landlord may incur in connection with reJetting, such as court costs, attorneys' fees
and disbursements, brokerage and management fees IlI1d commissions, cost of putting and
keeping the demised premise. in good order and costs of preparing the demised premises for
reletting as hereinafter provided. Any such liquidated damage. shall be pond in monthly
installments by Tenant on the day specified in this Lease for the payment of Fixed Minimum Rent
and any action brought to collect the amount of deficiency for any month shall not prejudice in
any way either the right3 of Landlord to collect the deficiency lor any subsequent month by a
similar proceeding; provided only that such liquidated damages shall be reduced by the amount,
if any, of monthly liquidated damages collected by Landlord minus the actual cost (including.
attorneys' fee. and co.t3) of collecting .uch monthly liquidated damages. Landlord, at Landlord's
option, may malce such alteration., repairs, replacement3 and/or decorations in the demised
premises as Landlord in Landlord's sole judgment considers advisable and necessary for lhe
purpose of reletting the demised premise.; and the making of such alterations and/or decorations
shall not operate or be construed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatlOever lor lailure to relet the demised
premises, or, in the event that the demi.ed premises are relet, for failure to collect the rent
thereof under ouch releiting.
(bl In any of the circumstances mentioned in the loregoing Section 19.05{a) in which
Landlord .hall have the right to hold Tenant liable as therein provided, Landlord shall have the
election, in place and instead of holding Tenant so liable, forthwith to recover against Tenant, as
liquidated damages for loss of the bargain and not as a penalty, a sum equal to the Fixed
Minimum Rent multiplied by the number of months and fractional month which would have
constituted the balance of the term, together with costs and attorney.' lee..
lc) In the event of a breach or threatened breach by Tenant of any of the covenant.
or provisions hereof, Landlord shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were
not herein provided for. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedies under this Lease, or now or hereafter existing at law or in
equity or by statute.
(d) Tenant hereby expressly waives the service of notice of intention to re-enter or to
30
D:U....IU..... Ilodi..\Mn. Fldd.... TCD\' (CCM).dO</Mn. Ji1<1dJ- rCBY (COI)
institute. kgal proceedings to that end and any and all rights of redemption granted by or \Ulder
any prC:8C1lt or future laws in the event of Tenant being meted or dispossessed for any cause, or
in the event of Landlord obtaining possession of the demised premises by reason of the violation
by Tenant of any of the covenants and conditio1'ls of this Lease or otherwise. The words /.Ire-enter"
and "re-entry" as used in this Lease are not restrictC(! to their technica1legal meaning,
SECTION 19.06. Conf~9a1~n ofJudt7MfI!nt.
(s) Upon the oe<:Urrence of any Event of Default, or in the event of a Deliberate Event
of Default as defmed herein, Tenant hereby empowers any ProthonolaIy or any attorney of any
court of record within the United States or elsewhere to appear for Tenant with declaration fUed.
and confe88 judgment in favor of Landlord, its successors or assigns, as of any term, for any
determined "mount to which Landlord would be entitled as damages under the wovisions of
Article XIX hereof including also an attorney's fee for collection of the same of five percent (5%) of
the total amount of such damages, together with costs of suit, and Tenant hereby waives all
errors, defects and imperfections in entering said judgment or in any writ, or process, or
proceeding thereon or thereto or in any wise touching or concerning the same; and for the
confe88ion and entry of such judgment, this Lease or a true and correct copy thereof shall be
sufficient warrant and authority. The 'authority and power contained herein shall not be
exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time
and as often as there is an occurrence of any Event of Default. or in the event of a Deliberate
Event of Default as defmed herein; and furthermore such authority and power may be exercised
during the original term and any extension or renewal thereof, or after the expiration or earlier
termination of the term hereof.
(bl When this Lease shan be tenninated or cancelled by reason of the breach of any
provision hereof, either during the original term of this Lease or any renewal thereof, and also as
soon as the term hereby created or any renewal thereof shall have expired, it shall be lawful for
any attorney as attorney for Tenant to file an agreement for entering in any court of competent
jurisdiction an amicable action and confession of judgment in ejecbnent apinst Tenant attd all
persons. claiming under Tenant for the recovery by Landlord of possession of the demised
premises. for which this Lease or a true and correct copy thereof shan be his sufficient warrant,
whereupon, if Landlord 80 desires, a writ of po85e&Sion may issue forthwith, without any prior
writ or proceedings what""""er, and provided that if for any reason after such action shall have
been commenced the same shall be terminated and possession remain in or be restored to
Tenant, Landlord she.ll have the right upon any subsequent default or defaults, or upon the
termination or cancellation of this Lease as hereinbefore set forth,. to bring one or more amicable
action or actions as hereinbefore set forth to recover possession as aforesaid.
SECTION 19.07. Waivers.
(a) Tenant expressly waives: .
(1) The benefit of all laws, now or hereafter in force, exempting any goods on
the demised premises, or elsewhere, from distraint, levy or sale in any legal proceedings taken by
Landlord to enforce any rights under this Lease.
(2) The benelit of all laws now made or which may hereafter be made
repnling any limitation as to the goods upon which, or the time within which, distress is to be
made after the removal of goods, and further relieves Landlord of the obligation of proving or
identifying such goods, it being the purpose and intent of this provislon that all goods of Tenant,
whether upon the demised premises or not, sha1l be liable to distress for rent. .
. (3) The right to issue .. writ of replevin for the recovery of any goods seized
under a distress tor rent or 1eYy upon an execution for rent, damages or otherwise.
(4) The right to delay execution on any real estate that may he levied upon to
collect any amount which may become due under the terms and conditions of this Lease and any
right to have the same appraised, and Tenant authorize. any ProthonolaIy or clerk to enter a writ
of execution or other process upon Tenant's voluntary waiver end further agrees that said real
estate may be sold on a writ of execution or other process.
(S} All rights under any law, ordinance or statute relating to Landlord and
Tenant rights to the extent of hereby authorizing the sale of any goods distra;ned for rent at
anytime after seven (7) days from said distraint without appraisement and condemnation thereof.
(6) The right to three (3) months' notice and lor fIfteen (IS} or thirty (30)
days' notice required under certain circumstances by The PennliY1vaniB. Landlord and Tenant Act
31
D:ILeeIIlL.... IIodIesIMn. Field'.. TCB\' (CCM),do</MfI. Fleld.-TCB\' (CCM)
of 1951, as amended, hereby agreeing that any notice time period as required in this Lea~e
Agreement shall be sufficient in either or any such case. Landlord and Tenant agree that thIS
Section (6) shall only be applicable if the demised premises is situate in Pennsylvania.
(bl The parties hereby waive trial by jury in any action, proceeding or co:>nterdaim
brought by either party against the other on any matter whatsoever anamg out of, or In any way
connected with, this Lealie, the relationship of Landlord and Tenant created hereby, Tenant's use
or occupancy of the Demised Premi8es, andlor any claim for injury or cIamage. In the event
Landlord commences any action or proceeding for nonpayment of Minimum Rent or any item of
additional rent due hereunder, Tenant shall not interpose any counterclaim of any nature or
description in any such action or proceeding. The foregoing. however, shall not be construed as a
waiver of Tenant's right to ..sert such claim in a separate action or proceeding instituted by
Tenant.
AJtT1CLE XX
IIIIlCBLLAlfBOU
SECTION 20,01. Access bv Landlord.
Landloril may at all reasonable times during the term of this Lease enter to inspect the
demised premises and/or may show the demised premises and building to others. At any time
within one (I) year ia)lnediately preceding the expiration of the term of this Lease, Landlord shan
have the right to display on the exterior of the demised premises (but not so as to unreaaonably
obstruct the view thereof or access thereto) the customary "For Rent" sign and during such period
Landlord may show the premises and all parte thereof to prospe<:tive tenants between the hours
of 9:00 A,M. and 9:00 P.M. on any day. Landlord also reserves the right after notice of intention
to so enter (except that in the event of an emergency, no notice 8hall be required) to enter the
premises at any time and from time to time to make such repairs, additions or alterations as it
may deem neCe$88ry for the safety I improvement or preservation thereof,. or of the building in
which the demised premisea is contained, but Landlord assumes no obligation to do so, and the
performance thereof by Landlord 8hall not constitute a waiver of Tenant's default in failing to
perform the same. Landlord shall in no event be liable for any inconvenience, disturbances, loss
of business or other damage to Tenant by reason of the performance by Landlord of any work in,
upon, above or under the demised premise... If Tenant shall have vacated or deserted the
demised premises or, in the event of an emergency, or if in any other instance after Landlord has
given notice of Landlord's intention to enter, Tenant or Tenant's employees shall not be peraonalJy
present to permit an entry into the demised premises, then, in any such event, Landlord or its
agents or employe... may enter the same by the use of force or otherwiae without rendering
Landlord liable therefor, and without in any manner affecting Tenant's obligations under this
Lease. The exercise of any such resenred right by Landlord shall not be deemed an eviction or
disturbance of Tenant's use and possesaiol1 of the premises and shall not render Landlord liable
in any manner to Tenant or to any other person, nor shall the same constitute any grounds (or an
abatement of any rent hereunder.
SECTION 20,02. Holdinll Over.
Should Tenant hold over in possession of the demised premises after the expiration of
the term hereof without the execution of a new lea8e agreement or extension or renewal
agreement, Tenant, at the option of Landlord, shall be deemed to be occupying the demised
premises from month to month, subject to such occupancy being terminated by either party upon
at least thirty (30) days' written notice, at the rental, including, but not limited to, Fixed
Minimum Rent computed at a rate which is double the Fixed Minimum Rent rate in effec~ for the
last full month of the term of this Lease, Percentage Rent, Tax Rent, Tenant'.. proportionate share
of Operating Costs, the Utility Charge, Promotion Charge, and additional rent all calculated, from
time to time, as though the term of this Lease had continued and otherwise subject to all of the
other terms, covenants and conditions of the Lease insofar as the same may be applicable to B
month to month tenancy.
SECTION 20.03. Successors. .
All rights, obligations and -liabilities herein given to, or imposed Upon, the respective
parties hereto shall extend to and bind the qeveral respective heirs. executors. administrators,
. 32
D'\Leaol\Le... Bodlts\M... Field'l- TCBY (CCM).dO<lM... Fi,ld.- TCBY (CCMI
trustees. receivers. legal representatives, successors and assigns of the said parties; and, if there
shall be more than one tenant, they shall all be bound jointly and severally by the terms,
covenanta and agreement. herein. No rights, however, aha1l inure to the benefit of any assignee,
legal representative, trustee, receiver, legatee or other personal representative of Tenant unless
the assignment to such parW has been approved by Landlord in writing as provided in Section
l4.01(a} hcm:of. Any reference to any department store herein shaI1 apply to its sUccessors,
replacements or assigns.
SECTION 20.04. Ouiet Eniovment.
So long as Tenant shall pay the rents herein provided within the respective times
provided therefor, and provided and IlO long as Tenant observes and performs all the covenants,
term and conditions on Tenant's part to be ob.erved and performed, Tenant shall peaceably and
quietly bold and enjoy the demised premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully claiming by, through or under
Landlord, subject, nevertheless, to the terms and conditions of this Lea.... Landlord's liability
under this Section shall cease upon a conveyance by Landlord of the premi....
SECTION 20.05. Waiver.
The waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver or any subsequent breach of the same or a waiver of
any other term, covenant or condition herein contained. The subsequent acceptance by Landlord
of rent due hereunder or any or all other monetary obligations of Tenant hereunder, whether or
not denoted as rent hereunder, shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant or condition of thia Lease, other than the failure of Tenant to make
the particular payment so accepted, regardless of Landlord's lmowledge of .Ilch preceding breach
at the time of acceptance of such rent. No covenant, term or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing and executed by
Landlord.
SECTION 20.06. CUstom and U.......
Any law, ull83" or custom to the contrary notwithstanding, Landlord shall have the right
at all times to enforce the covenants and conditions of this Lease in strict accordance with the
terms hereof, notwithstanding any conduct or custom on the part of the Landlord in refraining
from so doing at any time or time. with respect to the Tenant hereunder or with respect to other
tenants of the Shopping Center. The failure of Landlord at any time or times to enforce its rights
under saicl covenants and provisions strictly in accordance with the 88lTIe shall not be construed
as having created a custom in any way or manner contrary to the specific terms. provisions and
covenants of this Lease or as having in any way or manner modified the same.
SECTION 20.07. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than any payment of
rent or additional rent herein stipulated shall be deemed to be other than on account of the
earliest .tipulated rent or additional rent then due arid payable, nor shaI1 any endorsement or
statement on any check or any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Landlord may accept such check or payment without prejlldice to
Landlord'. right to recover the balance of auch rent or pursue any other remedy provided in this
Leasc, at law or in equity.
SECTION 20.08. Performance of Tenant'a Covenanta.
Tenant covenant. and sgrees that it will perform all agreements and ob..rve all
covenants herein expressed on its part to be performed anti observed and that it will promptly,
upon ,."..,ipt of written notice speciljring action desired by Landlord in connection with any such
agreement or covenant, comply with 8Ilch notice; and further, that if Tenant shall not comply
with any such notice to the satisfaction of Landlord prior to the date on which such
noncompliance would constitute an Event of Dcfault, in addition to, and not in lieu of or in
limitation of any other remedy which Landlord may have pursuant to this Lease, at law or in
equity, Landlord.may, but.shall not be obligated to, enter upon the premise. and do the things
specified in said notice. Landlord shall have no !lability to Tenant for any loss or damage
resulting in any way from such action and Tenant agrees to pay upon demand. as additional rent,
33
D:IL<pIIL.... BodleMfrl. Field',.TCBY (CCM).doelMn. Fiddo-TCBY (CCM)
any expense incurred by Landlordiil taking such action. Notwithstanding the foregoing,
Landlord's performance of any or all of Tenant's covenants ahal1 not release Tenant from liability
for non-petformarice.
SECTION 20.09. Entire Aare<:ment.
The Indenture of Lease, the Lea.. Agreement, the Exhibits and Rider, if any. set forth all
the covenants, promises, agreements, conditions and understandings between Landlord and
Tenant concerning the demised premises and there are no covenants. promises, agreements.
conditions or understandings, either oral or written, between them other than as herein set forth.
All prior communications, negotiations, arrangements, representations, agreements and
understandings. whether oral, written or both, between the parties hereto, and their
representatives, are merFd herein and extinguished, this Lease superseding and canceling the
same. Except as herein "therwiae provided, no subeequent alteration, amend)nent, change or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and
executed by the party against which such subsequent alterations, amendment, change or
modification is to be enforced. If any provision contained in any rider hereto is inconsistent with
any printed provisions of this Lease, the provision contained in such rider shall supersede said
printed provision. Tenant hereby acknowled~ that: (a) this Lease contains no restrictive
covenants or exclusives in favor of Tenant; (bl. this Lealie shall not be deemed or interpreted tu
contain, by implication or otherwiae, any warranty, representation or agreement on the part of
Landlord that any department sture or regional or national chain store or any other merchant
shall open for business or occupy or continue to occupy any premises in or adjoining the
Shopping Center during the term of this Lease or any part thereof and Tenant hereby expressly
waives all claim with respect theretu and acknowledges that Tenant is not relying on any such
warranty. representation or agreement by Landlord either aa a matter of inducement in entering
into this Lease or as a condition of this Lease or as a covenant by Landlord.
SECTION 20.10. No Partnershio.
Landlord does not, in any way or for any purpose, become a partner of Tenant in the
conduct or its business, or otherwise, or joint ventUter or a member of a joint enterprise with
Tenant. The provisions of this Lease relating to the Percentage Rent payable hereunder are
included 80Iely for the purpose of providing a method whereby adequate rent i8 to be mea8ured
and ascertained.
SECTION 20.11. ~.
All payments or rent and any and all other monetary obligations of Tenant accroing
hereunder, whether or not denoted as rent, shall be paid to Landlord or its agent at the addre...
set forth in the Indenture of Lease. until Tenant is notified otherwise in writing. and all notices
given to Landlord hereunder shall be iIi writing and forwarded to it at such address, postage
prepaid, by registered or certified mail, return receipt requested, or prepaid by any nationally
recognized express or overniaht mail delivery service which providea proof of receipt. All notices
to Tenant shall be forwarded to it at the address set forth in the Indenture oC Lease, until
Landlord is notified otherwise in writing, by postage prepaid, registered or certified maJI, return
receipt requested, or prepaid by any nationally recognized express or overnight mail delivery
service which provides proof of receipt, or"by delivery in person and in the event of a delivery in
person, the affidavit of the person making such delivery shall be conclusive proof of the delivery
and oC the date and time of such delivery. All notices shall be deemed to have been given on the
date when deposited in the mail receptacles maintained by the corporation which has been
chartered by the United States Government to operate and deliver the mail, deposited with the
expresa or overnight mail service as aforesaid or, in the case of notices delivered in person to
Tenant, when 80 delivered. Notices by the Landlord may be given on its behaH by Agent Or by any
attorney for Landlord or Agent.
SECTION 20.12. Cantions and Index.
The captions and index appearing in this Lease are inserted only as a matter of
convenience and in no way derme. limit. construe or describe the .scope or intent of such sections
or articlel of this Lease nor in any wa.y affect this Lease.
34
D'\LqjaIlL<ase Bodl<.\Jlln. Fi'ld'a- TCBV (CCM).dotiMrs. Fi,Ids- TCBV (CCM)
SECTION 20.13. Tenant Defmed: Use of Pronoun.
The word "Tenant" shall be deemed and taken to mean each and every person or party
mentioned ss a Tenant herein, be the same one or more; and, if there shalt be more then one
Tenant, any notice required or permitted by the term of thia Lease. mil,}' be given by or to anyone
thereof, and ehall have the same force and effect as if ~ by or to alt thereof. The use of the
neuter singular pronoun to refer to Landlord or Tenant ehall be deemed a proper reference even
though Landlord or Tenant may be an individual, a partnerM.ip, a corporation, or a group or two
or more individuals or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plucal number where there is more than one Landlord or
Tenant and to either corporations. llssociationa, partnerships or individuals. males or females,
shall in alt instances be a88Umed as though in each rase fully expressed.
SECTION 20.14. Neution of ~nal Liability.
Notwithstanding anything contained herein to the contrary, Tenant agrees that Landiord
shall have no peraonal liability witb respect to sny of the proviaions of this Lease and Tenant
shall look solely to the estate and property of Landlord in the land and buildings comprising the
Shopping Center of which the demised premises forms a part Cor the satisfaction of Tenant's
remedies, including, without limitation, the collection of any judgltlent or the enfon:ement of any
. other judicial process requiring the payment or expenditure of money by Landlord in the event of
any default or breach by Landlord with respect to any of the terms and provisions of this Lease to
be observed and/or performed by Landlord, subject, however, to the prior rights of any holder of
any Mortgage covering all or part of the Shopping Center, and no other allSeta of Landlord or any
principal of Landlord shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim and, in the event Tenant obtains a judgment against Landlord, the
judgltlent docket sha1l be so noted. This Section shall inure to the benefit of Landlord's
successors and assigns and their respective principals.
The references to 'Landlord' in this Lease shall be limited to mean and include only the
owner of the Shopping Center of which the Premises forms a part. In the event of a sale or
transfer of such interest (except a Mortgage or other transfer as security for a debt), the
"Landlord" initially named herein, or in the case of a subsequent transfer, the transferor, as of the
date of such transfer, .hall be automatically released from all liability for the performance or
observance of any term, condition, covenant or obligation required to be performed or ob3erved by
Landlord hereunder; and the transferee shall be deemed to have ......umed all of such terms,
conditions, covenanta and obligations except as to pre-existing defaults by Landlord. The
covenants and obligations contained in this Lease to be performed on the part of "Landlord' shall
be binding on the Landlord or any transferor only during the periods in which it is s Landlord
hereunder. The name and designation Crown American Realty TrUst is the name of the Trust
and the collective designation of the Trustees from time to lime under the Declaration of Trust
amended and restated as of August 6,1993, and as may be further amended and/or restated, and
aU persons dealing with the Crown American Realty Trust must look solely to the Shopping
Center for the enforcement of any claims against Crown American Realty Trust, as neither the
Trustees, off'1cers, agents or ehareholders of the Crown "",erican Realty Trust assume any
personal liability for obligations entered into by the Crown American Realty Trust by reason of
their status as said Trustee, officer, agent or shareholder.
SECTION 20.15. Effect of Governmental Limitation on Rents and Other Ch8flles.
In the event that any law, decision, rule or regulation of any governmental body having
jurisdiction shall have the effect of limiting for any period of time the amount of rent or other
charges payable by Tenant to any amount less than that otherwise provided pursuant to this
Lease, the following amounts ehall nevertheless be payable by Tenant: (a) throughout such period
of limitation, Tenant ehall remain liable for the maximum amount of rent and other charges
which are legally payable (without regard to any limitation to the amount thereof expressed in
this Loase except that all amounts payable by reason of this Section 20.15 shall not in the
aggregate exceed the total of all amount, wbich would otherwise be payable by Tenant pursuant
to the terms of this Lease for the period of limitation), (b) at the termination of auch period of
limitation, Tenant sha1l pay to Landlord, on demand but only to the extent legally coUectible by
Landlord, any amounts which would have been due from the Tenant during the period of
limitation but which were not paid because. of such limiting law, decision, rule or regulation, and
35 .
D:\....al\Le... BodI..\Mrs. Fldd'.-TCBV (CCMI.doclMrs. Fl<ld.. TCBY (CCM)
(c) for the remaining term of this Lease foliowing the period of limitation, Tenant shall pay to
Landlord an amounta due for such portion of the term of this Lease in accordance with the terms
hereof calculated as though there had been no inteIvening period of limitation.
SECTION 20.16. Partlallnvaliditv: Secante Cownants.
If any term, covenantor condition of this Lease or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder .of this Lease or
the application of 8uch term, covenant or condition to persons or circum.tenees other than those
.... to which it is held invalid or unenforceable shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid end be enforced to the fullest extent permitted
by law" Furthemwre, each covenant, agreement, obJiaation and other provision contained in this
Lease is, and shall be deemed and construed as, a separate and independent covenant of the
party bound by, undertaking or making the same, and pot dependent on any other provision of
this Lease unless expressly So provided.
SECTION 20.11. Recordinll.
Tenant shall not record this Lease without the written consent of Landlord. If Tenant
requests, and Landlord consents, the parties shall execute and acknowledge a short form of Lease
for recording'purposes which shall be recorded at Tenant's expense.
SECTION 20.18. Broke""", Commill8ion. .
Landlord and Tenant each warrant to the other that neither has been represented by any
Broker with regard to this Lease Agreement. Further, Landlord and Tenant each agree to
indemnify and hold harmleaa the other ahould any claim be made by any Broker claiming to have
represented either Landlord or Tenant regarding this Lease Agreement,
SECTION 20.19. Construction.
It is the intent of the parties h.,reto that if any term, covenant, condition or agreement of
this Lease is capable of two or more constructions, one or inore of which would render the
provision void, and the other or othe", of which would render the provision valid, then the
provision shall have the meaning or meanings which would render it valid,
SECTION 20.20. Peroetuitv.
If the term of this Lease ahall not have commenced within three (3) years of the date
hereof, then this Lea"" automatically shall become null and void and both Landlord and Tenent
shall be relieved of all obligations hereunder.
SECTION 20.21. Choice of Law.
This Lease shall be construed and enforced in accordance with the laws and jurisdiction
of the State in which the demised premises i. situate.
SECTION 20.22, Joint Preoaration.
This Lease is to be deemed to have been prepared jointly by the parties hereto and any
uncertainty or ambiguity existing herein, if any, shall not be interpreted against any party, but
.han be interpreted according to the application of the rules of interpretation for ann's length
agreements,
SECTION 20.23, InteriifWOtlltinn.
Whenever in W. Lease any printed portion has been stricken out, whether or not any relative
provision has been odd<d, this Lease shall be construed as if the material so stricken ..... never iDcluded
herein and no inference shall be drawn froIll the material so stricken out which would be inconai:atent in any
way with the conatruction or inteJpretation which would be appropriate if such material were n~ contained
herein.
SECTION 20.24. Submi.llion of Lealie to Tenant.,
TIlE SUBMISSION BY LANDLORD TO TENANT OF THIS tEASE SHML HAVE NO BINDING FORCE
OR EFFECT, SHALt NOT CONSTITUTE AN OPTION FOR TIlE lEASING OF TIlE DEMISED PREMISES, NOR
CONFER ANY R1GIITS OR IMPOSE ANY OBUOATlONS uPON EITHER PARTY UNTIt TIlE EXE:CUTION
TIlEREOF BY LANDLORD AND THE DElJVERY OF AN EXE:CUTED ORIGINAL COPY TIlEREOF TO TENANT
OR ITS REPRESENTATIVE.
36
D,\L...1ILeu< BodlctlMrs. FI.ld'..TCBY (CCM).d<I<iM.... Field.. TCBY (CCM)
R!vJI.Iu Date:: Mardi :18. 1997
CAPITAL CITY MALL
CAMP lULL, PENNSYLVANIA
EXHIBIT "A"
Food Court Retail Kiosk - As-Is
LAlmLORD BBItBIIY ACKIIOWLBDOB8 AIm TuAllT AGlUI:IIII THAT TuAllT 18 A I'ooD COUllT
TBlfAllT ,
I. Bach of the fo\lDwbac. __ or ..pre.uo... ....... for tile plU"JICJMe of the Section a..4 for tile
plUpotle of t.IIla Le.... tile ....1UIlDc .et forth:
A. "Food Court" means that certain portion or those certain portions of the Shopping Center
consisting of the Food Court Seating Area and the Rentable Area of the Food Court as shown
on Exhibit "B" attached to each of the leMeS for Food Court Tenants.
B. "Food Court Retail" means all those tenonts designated by Landlord from time to time as Food
Court Tenants.
C. "Food Court Seating Area" means that portion of those portions of the Food Court not
intended,. Crom time to time by Landlord, to be leased to Food Court Tenants and which
portion or portions are part of the common areas and are shown on Exhibit "B" attached to
each of the leases for Food Court Tenants.
D. "Food Court Tenant" means a tenant whose Demised Premises are designated from time to
time by Landlord to share in common with other tenan to of a similar nature, the costs of
maintaining and operating the Food Court Seating area in the monner aet Corth in this Section
and who comprise Food Court Retail.
E. "Rentable Area of the Food Court" means the Gross Leasable Ares of all areas within the Food
Court leased to Food Court Tenants.
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2. 0.. ",,-t'.t iIla .... 0._ ._...~I .Air_ c.rtT .. $1M LM. YaM a.w,u.. '" a
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n. The 101lowlDc prorisJosI, ill ."Ittos to the oth.r provalDlIUI Dr thlto ....... ehall apply to
FDO' CD1Irt T.aaata.
A. Is ..... L.... 71., T.u'" ......_n ,.,. Ii. 'I u,d'..t T.....~ 1"... C.... PN:,.Ri..at.
....... .r"e Pa.. C.ut ..... AI_ Ca... Ia.".'''a lllJa. ".,.,,"-.1-... ..-, ...
Milaa. .11.... ...-Jr.. ,. .. ,ai. ,___--t ,. .10.._ 1...., .....u_.. "'l.., :Yalta.....
tile ('..... _\1M ("!Ill..
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., *In rl.. ~._. T.---,. ..~ .. . ........ If ....If ........ ..... ....C.at
T....t. will .. ~a .aI,. ,.---u Ia tal, 11M..'" Claar ............ IIr ,.... ,ar..M .f
.... C'.." ......'-1_&...... ~_u.
C. Notwithstanding the foregoing, Landlord has the right from time to time to relocate or
rearrange the Food Court and the Food Court Seating Area and to extend or expand the Food
Court and the Food Court Seating Area including designating other portions of the common
areas immediately adjacent to the Food Court and. in such event, the provisions of this
Paragraph .hall apply.
D. The Tenant shall reimburse the Landlord its pro rata share of the capital costs and will
subSequently reimburse the Landlord for the maintenance and upkeep expense incurred by
the Landlord for; sanitary sewer lines, and air conditioning of the Food Court Seating Area.
E. Tenant acknowledges and agrees that it is a condition of this Lease that Landlord reservc8 the
right to fonnulate. determine and enforce such merchandising policies. standards and
practices for the Food Court as Landlord determine. necessaJy or advisable in the best
interest of the overall operation or the Food Court and the Shopping Center in order that
Landlord may properly and efficiently supervise and manage the Food Court and the
Shopping Center as a whole, and the Tenant agrees to be bound by and to comply with such
policies, standards and 'practices.
PIIga 2
D'\Leaal\LeoH BodleolMrs F1_ TCB\'.ccM-EI A.cIoe
Without limiting the generality of the foregoing. Tenant, at all times dUring the Lease Term, in
the operation of its busineas in the Food Court, will abide by all rules and regulations and
directions of Landlord relating to la) the health and sanitary conditions of the Demised
Premises, the Food Court and employees of Tenant in the Food Court; (b) standards and
'luali1;y of merchandise and merchandising as determined by Landlord; (c) customer relations
and reeolution of complaints of ""stomera; (dl such other matt<:ra as Landlord determines
from the time to time with respect to the operation of the Food Court. All of Tenant's
personnef working at ita aales counter(s) shall be similarly attired in uniforms of Tenant's
choice_ Such uniforms shall be kept in a neat and clean condition at all times and their
design ahaII be in keeping with the rU1lt-class, high quality image of the Shopping Center.
TIle ........ ,-.,.Ill. ..,. 'hUM ,...a... .. ......1- ...til.. ..,. ..... ....~--t.. 11,. y tlI~."r(
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..u._.at.
1lI. A. Teriant has inspected the premises and agrees to accept the premises in an 'as is" condition.
Except as provided in the foregoing Lease Agreement, Landlord shall not be required to
expend any amount. of money or do any other act which might be required to make the
demised premises suitable for the use permitted in the Lease Agreement.
B. Tenant covenants that the maximum size of the kio$k design and construction does not
""""ed the dimensions shown on Page 1 of this Lease and has a maximum counter height of
forty-two (42') 80 to allow see-through capacity to other points in the "'al!.
c. Tenant shall not damage or penetrate the mall floor, ceiling or surrounding mall area to
accommodate the kiosk structure in the demised space. The kiosk shall not be attached to
the floor in any manner other than set on the mall floor,
D. Tenant shall observe and maintsin a high quality, professional signing policy within its
demised premille8. No IIashing. moving or large signs will be used. Kiosk signage must
conform to Landlord's sign requirements. If signage is to be replaced, Tenant must submit
manufacturer's sign shop drawings(s} for Landlord approval prior to fabrication or instal1ation.
Any sign(s) erected in violation of criteria or without approval of design or installation from the
Landlord, shaU give the Landlord the right to remove such &ign(s} at the Tenant's cost.
E. Any construction and decoration in the demised premises shall be at Tenant's sole cost and
expense.
F. Mandstel}' Construction/Remodeling Requirements:
If the kiosk is new or has not been remodeled or replaced within the last live (5) years, the
following requirements will apply. If the kiosk is existing and has been remodeled within the
past five (51 years, remodeling requirements will be enforced at Landlord's option.
I. Minimal kiosk construction/remodeling requirements would include all new materials,
casework, finishes and signage.
n,ILqaI\LeoH BodleMlrl Fitld..TCBV.cCM-Es A.doc
Pap 3
2. All electrical work shall comply with the latest National Code (N.E.C.), and all Federal,
State and LocsJ Codes. Landlord does not permit:
Exposed light source (concealed cabineby lighting permissible).
Ramex or ax wiring - All wiring must be in conduit.
3. The Tenant's kio3k design, drawingtl, specifications and construction must comply with
all the Landlord requirements presented within the Tenant Design and Construction
Criteria Handbook. Tenant, Tenant's agents, Tenant's architect and/or engineer, and
Tenant's conti-acto...{.) andlor .ubcontractor(s) are responsible to complY with all
Landlord requirements and specification..
4. Tenant shall be required to attain all neceaeary approvals and permits from state and
local governing authorities including a fmal inspection and a CertifICAte of Occupancy
a. required. Tenant shall also comply with any requirements of the American's with
Disabilities Act IA.D.A.) a. applicable and as mandated by local and state authorities.
G. Tenant's Plans and SpeciflCations:
1. Complete profe8llionally prepared working drawings and specifications shall be
submitted for review andlor approval by Landlord within thirty (30) days after the
Landlord provld... the Tenant with a criteria package for the demised space.
Drawings and specifications .hall be prepared and srranged in three (3) categories:
Architectural, Mechanical and Electrical. Each group shaD be clearly designated.
Plans shall be drawn st 1/4" scale or larger, on a standard paper size no larger
than 30" X 42" throughout. .
2. During all phases of plan development and prior to bidding or commencing of
constrUction, the tenant shsll make a physical on site inspection of the demised
space and verifY conditions, dimensiona, etc. of the demised space. Failure to do 80
shsn be at the risk and sole expense of Ten ant.
3. Landlord's plan n:vlew and/or approval is for compliance with Landlord'. criteria
only. and this approval does not relieve Tenant of responsibility for compliance with
local, state and federal codes, and regulatory agencies governlng this area.
'nM ,.. ....dlll. re, ...... ,.vi.. ".. "'I'r.ral" 1....,".. .'00.00 r.r.
ta...... v.. will .. ....11... .,.. -.pl.. at pia.. \II .... .... ,.,."Ie lei
La....... ,W.f t. .,,-~-, 7Ii- De_
H. Tenant's Construction:
1. Notwithstanding anything to the contraJy contained in this lease agreement, the
execution hereof is expreaaly made subject to and conti1).gent upon the compliance
of the kiosk criteria and the formal approval of the kiosk design by the Landlord
and, until said formal approval is given by Landlord, Landlord may at the
Landlord's option, cancel this lease by giving Tenant written notice of same.
In no event shall the Tenant commence work or: deliver/install anything within the
mall until formal approval is given by the Landlord.
2. Upon approval by the Landlord of the tenant's plans and specifications, the tenant
is responsible to cause construction to promptly commence and will use every effort
to cause the demised space to be completed (including the use of double shift labor)
in otder to open for business in accordance with the terms of this Lease.
D:IL.lallL.... BocIIalMn FId.. TCBV-CCM.I:. A.do<
Page 4
3. Tenant shall notify the Landlord a minimum of one (II week prior to moving onto
the job to commence construction. Tenant must also check in with the mall
manager (or general construction supervisor if still on the project) and present
him/her with. a set of approved plans along with the building permit number (where
applicableL
4. All work must be performed by bona fide licensed contractor(sl and conform with
all applicable laws, rules. regulations. specifications, cod"" and standards
established by regulatory agencies or the Landlord.
5. Landlord. in its sole dillCfCtion, and for any reason, shall have the right to order
tenant to terminate any construction work being performed by or on bebalf of tenant
in the demised premises. Upon notification from Landlord to Tenant to ce..... any
such work, Tenant shall forthwith remove from the demised premises all "Fltl$,
employees and contractors of the tenant's performing such work until such time as
Landlord shaU have given its cOnsent for the resumptions of such construction
work and tenant sha1J have no claim for damage of any nature what80ever against
Landlord in connection therewith.
6. Tenant shsU be responsible for making necessary arrangements, to include costs,
for aU permanent utility service for the demised space.
7. Tenant's progress and workmanship is subject to Landlord's inspection and
approval. Any violation involving the.Tecant's store construction shall be corrected
and made acceptable to the Landlord, at the Tenant's sole responsibility and cost.
Tenant's failure to coft"!'Ct violations within fifteen (151 days of notice of same to the
tenant shall, st Landlord's option, result in correction of same by Landlord or its
agent related costs will be biUed to the Tenant as additional rent under the terms
and conditions of the lease.
8. Upon completion of construction, tenant or il$ "Fnt or its contractor will obtain
fino.! inspection of the demised space by the building authorities and deliver a copy
of the Certificate of Occupancy to the Landlord prior to opening.
IV. Compliance:
A. Th. Tenant's store design; drawings, specifications and construction must comply with
all the Landlord ~uirements presented within the Tenant Design & Construction
Criteria Handbook. Tenant. Tenant's agents, Tenant's architect andlor engineer, and
Tenant's contractor(s) and/or sUbcontractor(s' arc responsible to comply with aU
Landlord requirements or specifications.
B. Tenant sha1\ be ~uired to attain all necessary approvals, permits, and certifications
from state and local gov<eming authorities including a fmal inspection and s. Certificate
of Occupancy, as required. Tenant shan also comply with any requirements of the
American's with Disabilities Act (A.D.A.} as applicable and as mandated by local and
state authorities.
C. Hazardous Materials: Tenant andlor its architect snd/or contractor(s' snd/or
subcoiltractor(s) shall not specify, furnish, install or Use any materials containing any
hazardous OT carcinogenic producing materials in the completion of Tenant's work. Ten
(10) working days after completion of Tenant's work, tenant's architect shall deliver to
Landlord a certification that none of the materials used in the completion of tenant's work
contains hazardous/or ca.rcinogenic producing materials.
D:ILq.l\Lta.. BodIaIMrs \l1dds- TCIIY.ccM-Ex .\-dot
Page 5
.
D. Waiver of Licn8;
1. Tenant agrees to enter into Waiver of Liens Agreements or Waiver of Rights to file
Lien contract with. ,any of ita contra.ctora, wbcontractors, materialmen, or other
peraona furnishing services, labor or ""!terilll. concerning, in any way, work to be
completed in part, or while, in connection with Tenant'. work and provide Landlord
with eoJ>>1i""l of same.
2. Any mechanic'. lien filed against the demisod premise. or the shopping center for
work claimed to haw been done or for materials claimed to have been fumi.hed to
tenant ahaU be diachacged within twenty (20) cIaya alter filing, by bonding or as
provided or required by law or in any other lawful manner. Tenant'. failure to
comply with this (Paragraph IV, 0, I and 2) shall be deemed an Event of Default.
E. After Tenant opens for busineflS, Landlord will be responsible for removing Tenant's
garbage, excluding greue trap residue, from the demisod space to a compactor an<l{ or
holding bin(sl. Tenant shall contact mall management oflice prior to opening for
busineflS to make all necessaJy arrangements for garbage removal. Tenant is
responsible to separate dry garball" from wet garbage and suitably bag andlor
containerize same as directed by the LandlDrd. A charge for garbage removal will be
levied on the Tenant based on a /lxed fee, subject to periodic eaea1ation. comparable to
existing local rates. .
F. On... Trap Cleaalal aIl4 llalllt....oc.: Tenant shall install a new grease trap for the
exclusive use of their premises. Tenant. at their own expense. will maintain the grease
trap. The tenant must place in force and keep in force for the full term of the lease
agreement a service contract with a reputable licensed "disposal cOmpany for collection
and diapos&J of all gre.... for the demised space. A copy of the agreement must be
delivered to the Landlord prior to Tenant opening for business. Landlord reserves the
right to inspect the grease trap to insure that it is being properly cleaned and maintained
and. if not, Landlord will have same cleaned and maintained at Tenant's CO$l.
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CROWN AMBRICAN
LEASE PLAN
CAPIT AL CITY MALL
-:
-
.
.
EXHIBIT .e"
UTILITY SCHEDULE
RATE.
1. Utility Services sball be furnished to individual tenants as ncoded. Tenonl ~ to use and pay for utility
service supplied by Landlord and additional rent undct the Lease on a monthly blSis. Landlord may estimate such periodic
billings and confirm uulIor adjust same on a less frequenl blSis. Charges for utility service .ball be in accordance with
Tenant's use category as if TelllUlI were serviced directly by the local public utility or municipal authority then supplying
utility service to the Shopping Center (the "tariff') and any supplements thereto or any tarif& issued to supersede said tariff,
which may hereafter be filed, and Tenant shall also pay any taxes, surcharges, imposition., penalties or other additional
charges applicable to the utility service used by it which are not included in the aforesaid raIe and tariff. proviclcd that such
taxes, surcharges, impositions or other charges arc required ):Jy law to be collected from Tenant or are paid by Landlord to
its supplier of utility service.
2. In the event that the raIe which would be charged by a public utility for equivalent amounts of service becomes
insufficient to compensate Landlord for the reasonable costs for .upplying utilities to Teolllll, Ihell Landlord shall be
entitled 10 cbarge Tenant III amount.equal to the actua1 cosl of supplying the utility service togather with an amount not to
exceed fi&en percent (15%) of utility hill.
3. In no event sbalI Landlord he liable for the quality, quantity, failure or interruption of any utility service to tile
dentiscd premises.
4. TIle It-dl9f4 &If, at its epUSBt isMall III MIfgY Manage81lMlt ~s~em. 18 .Hiei_1f 8e~ uality usage.
TeAant "18 18 ,ay a IftEJ~ e_g8 sf tSQ.QO 19 TeRIRt's 8_ sf the EnIflY ~.---B 1IlV~ E}!MIR pwe:ku"
iRstallmeftt, --'-tIBilft81 IIIU'lIpIRI8e .86" TIIJlIBt shaH f_it tHis ehaFse, ':Jhieh ?ill hi S_...-Maly idt&1ifiei iR tIl,
origia.l ia",,;.., as p~ oftll. Tonant's ..gular 1II0atllly lIlilky pa~.
ELECTRICAL SERVICE.
Electric energy supplied herelDlder by Landlord shall be nominally sixty-<:ycle. unregulated a1temating CWTcnt, in
the fonn of 3 phases, 4 wires, and a voltage designated by Landlord. Installation of Tenanl's electricallicilities shall be in
confonnity with the Lease, the National Electrical Code and the requirements of the public utility or municipal authority
then furnishing electricity to the Shopping Center.
If Tenant is replacing a prior tenant in the demised premises, Landlord will charge the new Tenant a $150.00
charge for the transfer of utility services responsibilities from Landlord to new Tenant.
RIGHT TO CUT-OFF.
Landlord shall have the right to discontinue its utility service to Tenant and to remove ils property from Tenant's
premises whenever bills for utilities are in arrears beyond the gr1ICC period sel forth in the Lease. or in case Tenant fails 10
comply with or perfOJDl any of the tenns, conditions or obligation. or violates any of the covenants sel forth in the Lease
beyond the gr1ICC period .et forth in the Lease.
APPLICATION FOR UTILITY SERVICE.
Tenant shall malee application for utility service 10 Landlord, in accordance with rules and regulation. set forth in
Landlord's Utility booklet, where such service is supplied by Landlord.
O\.L~lrcicSUcpI.!l~bitC\TC8Y(COof}.doc
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
)
)
)
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CIVIL ACTION - LAW
No. 05-902
AFFIDAVIT OF SERVICE OF
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION
THEREON, NOTICE OF
DEFENDANT'S RIGHTS, NOTICE
TO DEFENDANT PURSUANT TO
42 PA. CONS. STAT. ANN. ~2737.1,
AND NOTICE UNDER RULE
2973.2 OF JUDGMENT AND
EXECUTION, NOTICE OF
DEFENDANT'S RIGHTS
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA II> No. 43523
Dana L. Munhall
P A II> No. 82583
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. 05-902
AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT
AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS, NOTICE TO
DEFENDANT PURSUANT TO 42 PA. CONS. STAT. ANN. ~2737.1, AND NOTICE
UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION,
NOTICE OF DEFENDANT'S RIGHTS
I, Dana L. Munhal1, being duly sworn according to law, hereby certify that:
I. I served upon Cookies Plus, Inc., Defendant in the within action, an original
Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights,
an original Notice to Defendant Pursuant to 42 P A. Cons. Stat. Ann. S273 7.1, and an original
Notice Under Rule 2973.2 of Judgment and Execution, Notice of Defendant's Rights by United
States Certified Mail, Return Receipt Requested on the 9th day of March, 2005. True and
correct copies of said Notices are attached hereto as Exhibits A, B, and C, respectively; and
2. Attached hereto as Exhibit D is the original certified return receipt issued by the
United States Post Office, providing proof of service of the Notice Under Rule 2958.1 of
Judgment and Execution Thereon, Notice of Defendant's Rights, Notice to Defendant Pursuant
to 42 PA. Cons. Stat. Ann. S2737.1, and Notice Under Rule 2973.2 ofJudgment and Execution,
Notice of Defendant's Rights on March 9, 2005.
Sworn to and subs~bed
before me this ~ay of
March, 2005.
~O~~
Notary Public
My Commission Expires:
CUMMONWLi\.Lrii OF PENNSYLVANIA
Notarial Seal ,
Laurie B. Miller_ Notary PublIc
City of Pittsburgh, ~l1egheny COWlty
My Comnlission Ex?m~s Jan. 28, 2008
Member, Pennsylvania ASSOcIation of Notaries
~~~1A
ana L. Munnall
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT-OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, . )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. 05-903
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: COOKIES PLUS, INC.,
A judgment in the amount of $32,326.96 has been entered against you and in favor of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper allegedly signed by you. The sheriff may take your money or
other property to pay the judgment at any time after thirty (30) days after the date on which this
notice is served on you. .
You may have legal rights to defeat the judgment or to prevent your money or property
from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE
JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER 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 Lawyer Referral Service
Cumberland County Courthouse, 4th Floor
. Carlisle, PA 17013
(717) 240-6200
V~Uc-L.--L !\Ji\,L
tephen S. Zubrow
Dana L. Munhall
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471.3490
Exhibit A
,
f
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. 05-903
NOTICE TO DEFENDANT PURSUANT TO 42 PA. CONS. STAT. ANN. & 2737.1
TO: COOKIES PLUS, INC.
Pursuant to 42 Pa.C.S. g2737.1, please take notice that the Plaintiff in this matter has
entered a judgment by confession against you in the amount of$32,326.96.
You are entitled to file a petition to "strike" or "open" the judgment. In order to do so,
you must promptly file a petition with the Court of Common Pleas of Cumberland County, ..
Pennsylvania, as required by Rule 2959 ofthe Pennsylvania Rules of Civil Procedure. You file a
petition by leaving it with the clerk of courts or Prothonotary at the courthouse in Carlisle,
Cumberland County.
A petition is a formal statement of your reasons for challenging the judgment. You must
include the names of the parties at the top of the first page and the case number, which is shown
above. The petition must state your reasons for challenging the judgment in separate numbered
paragraphs. . You have to sign the petition and include a sworn statement at the end of the
document verifYing that the facts you state in the petition are true and accurate. Yau will waive
any defenses and objections not included in your petition to strike or open. You must therefore
make every effort to raise all possible issues and defenses in your petition to strike or open in .
order to avoid waiving any claims.
If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of
Civil Procedure. A fully copy of Rule 2959 is attached to this Notice. You may also have to
comply with local rules of procedure in effect in the county where the judgment was entered.
If you do not file a petition challenging the judgment, the Plaintiff may take steps to
collect on the judgment by asking the Sheriffto seize your assets. Accordingly, you should
immediately seek the advice of attorney. If you wish to discuss the matter with an attorney but
'do not know how to find one, you may request a referral by contacting the following agency:
Exhibit B
Cumberland Lawyer Referral Service
Cumberland County Courthouse, 4th Floor
Carlisle, PA17013
(717) 240-6200
Corporations may be unable to represent themselves in court. If the defendants include a
corporation, the corporation must appear through an attorney if it intends to challenge the
judgment.
You may receive other papers and notices regardirig the judgment. Those other papers do
not negate or override this Notice. Likewise, this Notice is not intended to and does not negate
any of the no.tices or information obtained in other papers that may be served upon you.. .
We reiterate that you are required to act promptly if you wish to seek relief from the
judgment. Under certain circumstances, you have only 30 days in which to file a petition after
papers are served on you. Even ifthe 30 day rule does not apply, you. must act promptly in order
to protect your interests. Failing to act in a timely manner will render you unable to challenge
the judgment at a later time.
If you were incorrectly identified and the judgment was entered against you in error,
you may be entitled to collect costs and reasonable attorney's fees as determined by the Court.
Dated: February ~3 ,2005
By: .; ~lvv l
Step en S. Zubrow
Dana L. Munhall
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure
(a)(l) Relieffrom a judgment by confession shall be sought
by petition. Except as provided in subparagraph (2), all grounds for
relief whether to strike off the judgment or to open it must be
asserted in a single petition. The petition may be filed in the county
in which the judgment was originally entered, in any county to
which the judgment has been transferred or in any other county in
. which the sheriff has received a writ of execution directed to the
sheriff to enforce the judgment.
(2) The ground that the waiver of the due process rightsof
notice and hearing was not voll!ntary, intelligent and knowing shall
be raised only .
(i) in support of a further request for a stay of execution
where the court has not stayed execution despite the timely
filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by Rule 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant
to Rule 2956. I (c)(2) or Rule 2973.I(c), the petition shall be filed
within thirty days after such service. Unless the defendant can
demonstrate that there were compelling reasons for the delay, a
petition not timely filed shall be denied.
(b) If the petition states prima facie grounds for relief the
court shall issue a rule to show cause and may grant a stay of
proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rul e.
The return day of the rule shall be fixed by the court by local rule
or special order.
(c) A party waives all defenses and objections which are
not included in the petition or answer.
(d) The petition and the rule to show cause and the answer
shall be served as provided in Rule 440.
(e) The court shall dispose of the rule on petition and
answer, and on any testimony, depositions, admissions and other
evidence. The court for cause shown may stay proceedings on the
petition insofar as it seeks to open the judgment pending
disposition of the application to strike off the judgment. If
evidence is produced which in a jury trial would require the issues
to be submitted to the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment.
shall be preserved while the proceedings to strike off or open the
judgment are pending. .
Pa. R.C.P. 2959.
\
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, I;'ENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. 05-902
NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION
NOTICE OF DEFENDANTS' RIGHTS
TO: COOKIES PLUS, INC.,
A judgment for possession of real property has been entered against you and in favor of
the Plaintiff without any prior notice and hearing based on a confession of judgment contained in
a written agreement or other paper allegedly signed by you. The sheriff may remove you from
the property at any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your being removed from
the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE
FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS
SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER 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 Lawyer Referral Service
Cumberland County Courthouse, 4th Floor
Carlisle, P A 17013
(717) 240-6200
n ~\li" ~. Jlj\J,~v0t
S ephen S. Zubrow
Dana L. Munhall
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Exhibit C
. Complete items 1, 2, and 3. Also complete
item 4 If Restrictad Delivery Is desired.
. Print your name and address on the reverse
so that we can retum the card to you.
. Attach this card to the back of the mallpiece,
or on the front ff space pennits.
1. ArtIcle Addressed to:
COJKIES PLUS INC
T/A MRS FIELDS TCBY
C!PITAL CITY MALL
3J06 CAPTIAL CITY MALL DRIVE
CA'P HILL PA 17011
2. _ Number
(I/Bnsforfrcm...- o\lIlOI)
PS Forin 3811, August 2001
DAgen!
D Add_
D. Is delivery address different from Il6m 1?
If YES, enter dellVOl}' address below:
3. 5e<vJl:OlYpe
I!rCertlfled MeII 0 Express Mall
o RegISler8d 0 Retum~rM_
o Insured Mall 0 C.O.D.
4. RestrJcled Delivery? (Extra Fee) D Ves
7002 3150 0006 1896 6363
102585-02-M-154O
~ RoIum fIocoIpt
Exhibit D
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights, Notice to Defendant Pursuant to 42 PA. Cons. Stat. Ann. 92737.1, and
Notice Under Rule 2973.2 of Judgment and Execution, Notice of Defendant's Rights was served
upon the following by United States mail, first class service, postage prepaid, this J '-t~ day of
March, 2005:
Cookies Plus, Inc. tla Mrs. Fields TCBY
Capital City Mall
3506 Capital City Mall Drive
Camp Hill, P A 170 II
v~vVl
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