HomeMy WebLinkAbout05-0903
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMTED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No. oS' -9d3 C!;t)~L~~
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of
which is attached to the Complaint filed in this action, I appear for the Defendant and confess
judgment in favor of Plaintiff and against Defendant for money as follows:
Amount due from 1I1104 through 2/1I0S
$ 30,769.01
Attorneys' fees for enforcement and collection (5%)
provided under ~19.06 of the Lease
$ 1,538.45
Filing Fee
$
19.50
TOTAL
$ 32,326.96
Dated: February \ c:; , 2005
~
CIVIL DIVISION
No. O~ - 90..3 ev~L 't'iiZ-~
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERHSIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defundant. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
COMPLAINT IN CONFESSION OF
JUDGMENT FOR MONEY
Filed on Behalf ofthe Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PA ID No. 43523
Dana L. Munhall
PA ID 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., )
)
Derendant. )
CIVIL DIVISION
No. DS - 9c>J (!~,.:L ~"1
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
1. 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 of the original, is attached hereto and marked as Exhibit 1,
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 CroWD American Capital City Associates, L.P. under the Lease. This confession for
money judgment 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 consumer credit transaction. The underlying Lease
of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial
Filing Fee
$
19.50
transaction.
S. Crown American Capital City Associates, L.P. assigned the Lease to Plaintiff.
6. Judgment has not been entered on the Lease in this or any other jurisdiction.
7. Plaintiff avers that the Lease authorizes the entry of Judgment for money 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 of
2004 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.
8. The itemization of the amount presently due under the Lease and without waiver
of future damages is as follows:
Amount due from 1I1104 through 2/1I0S (Ex. 2)
$ 30,769.01
Attorneys' fees for enforcement and collection (5%)
provided under ~19.06 ofthe Lease
$ 1,538.45
TOTAL
$ 32,326.96
2
WHEREFORE, Plaintiff as authorized by the warrant of attorney contained in the Lease
demands a money judgment against Defendant in the total sum of$32,326.96 plus costs,
attorneys' fees and interest at the Lease rate from and after the date of the Entry of Judgment as
provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: February It;, 2005
tephen S. Zubro
Dana L. Munhall
MARCUS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
3
Cookies Plus, Inc.
UNSWORN VERIFICATION UNDER 18 PA.C.S. &4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. ~4904 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 Money 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 CAPlT AL CITY LlMTED PARTNERSHIP
Dated:
F~h-" ""-- 'S
o
,2005
1 ~ C{ cduV/J
By:
Debra Lambert
Vice President - Legal Services and
Corporate Affairs
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
COOKIES PLUS, INC., )
)
Defendant. )
CIVIL DIVISION
No.
NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY
TO: COOKIES PLUS, INC.
Please take notice that a judgment for money in the amount of $ 32,326.96 has been
entered against you by confession on the date below in favor of the Plaintiff.
Date: 5(-1 II JIt.:> ("
,
Prothonotary, Court of Com
Pleas of Cumberland Count
"IlfDBI.'ITURE or LBASE"
THIS INDENTURE OF LEASE, made on the .#-daY Oflrt,,'5{ ,2002.. by CROWN
AMERICAN CAPITAL CITY ASSOCIATES, L. P., a Pennsylvania limited partnership,by
CROWN AMERICAN CAPITAL CITY ASSOCIATES (a wholly-owned subsidiary of Crown
American Realty Trust), a Delaware business trust, ita Sole General Partner, with its
oft'"1Ce8 located at Paaquerilla Plaza, Johnstown, Pennsylvania 15901 (hereinafter caIled
'LandJord"), and COOK1B8 PLUS, DlC., a PeIlUJlvuUa corpontlaa, SEVEN 11Ibl.il,
ING.,-
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 'B' hereto, now erected or
hereafter to be erected as 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 demi8ed premises being
measured and described by the following dimensions which are measured from the
outside building lines of each waIl of the demised premises or, in the case of those walls
separating the demised premises from other stores in the Shopping Center, from the
center lines of such walls: (Food Court Kiosk H20)
Front: Twelve Feet(12~
Depth: EJiht..1l r..t BlIht IDehe. (18' 8"1 KigRteea Feet {181
Total Area: Two IluD.4red Twell.ty-four (2241 Sq_ reet
~'B ~R"e8. SiJReen (~Hi) E_EluaR! Peet
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 time 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'I,and to such mles and regulations for the use thereof as may be prescribed
from time to time by the Landlord.
1
D:\Lqal\LaIi<H\AGIlJ:E-DOCSIIIld.lM-lI:!\M.. Ftdd,TCBV.cCM la...ll.doe
Exhibit I
A.I . Storalle Area.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
store premiaes (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 Slx1;Y (160) Square Feet, together with the right to the
non-exclusive use in common with others entitled to use same of BIl such automobile
parking areas, driveways, malls, courts, corridors and footways, loading facilities and
other facilities as may be designated by Landlord from time to time 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 as may be prescn'bed from time to time by the
Landlord.
. . .
Except as otherwise expressly set forth in this Indenture of Lease to the contnuy, the
Leased Premises and the Storage Area shall hereinafter collectively be referred to as the
premises, leased premises or demised premises.
B. Term. lSee Rider)
The term of this Lease shall be for a period of seven (7) years beginning on the
"commencement date" as established by Section 1.0 1 (a) of the Lease; provided, however,
Tenant's fixed minimum rental and other charges will commence on the earlier to occ~
of: (a). the date upon which the Tenant opens Kiosk 1120 for business; or (h) thirty (30)
days after Landlord delivers posaession of Kiosk 1120 to Tenant, whether Tenant is open
for buainesa or not.
C. Fixed Minimum Rent.
Tenant shBll pay to Landlord a guaranteed annual muumum rent r'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
Years3-4
Years 5 - 7
$41,500.00
$43,500.00
$45,500.00
$3,458.33
$3,625.00
$3,791.67.
Each such Installmcnt shall be due and payable on or before the rust day of each
calendar month In the term of this Lease, In advance, at the office of Landlord or at
such other place as may be designated by Landlord from time to time, without any prior
demand therefor and without any deduction or setoff whatsoever, the first installment
to be paid on the commencement date whether or not the commencement date is the
first day of a calendar month. In the event that the commencement date of the term of
this Lease shBll 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 first day of the first full calendar month in the term
hereof, on a per diem basis (calculated on a thirty (30) day month).
D:\LepllLalleHIAGRIlE-'DOCS\Intt-~lMn 'Iold-TCBY-CCM (Rev.I).d..
2
D. Percentae 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
(hereiilafter referred to as "Petcentage Rent"), 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%) of that portion of Gross Sales (as defined in Section 2.02 of the Lease)
during such lease year which is in excess of the applicable Percentage Rent Gross Sales
Base. The Percentage Rent Grosa Sales Base for the following periods within each lease
year sha1\ be:
Tim~ Period
Percentae Rent Gross Sales Base
Yeal'll I - 2
Years 3-4
Years 5 - 7
$415,000.00
$435,000.00
$455,000.00.
E. Use of Premises. IBee RIder)
Subject to the provisions of Article V of the Lease, Tenant shall use the leased
premises solely for the purposes of conducting the business of: the retail sale of M.....
Fields' cookies, soft drinks, and TCBY yogurt products, u.d such Ite_ u are
1De1wle. III the 1'CBY BtaIIAIaJd .eau, and for no other purpose whatllOever. Tenant
covenants that the Storage Area shall only. be used for storage purposes.
F. Common Area Pavment.
On the first 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 las defmed in Article
VIl of the Lease) an amount which for the ftrat 11") )'UI' of the term of un. Le_
ahaI1 be equal to Oae ThoulllUUl JI'tn Bua4re' Dollars ($1,600.00). R_r less thy
'11M twe1Ah (1: 1218.) sf \he preduet eetaiReEl 8y IRwtiplyisg the BtfiiaFe feet sf tleeF area
Betke demi..d p. If.el1Jy the ,,,us. ef iiJE Qellue and Ninety FellF CeRte ($',,94). If the
commencement date hereof shall not be the fnt day of a calendar month, Tenant's
payment of its proportionate share of Operating Costs for the fractional month ~tween
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 monthl and shall
be paid together with the f1J'llt payment of Fixed Minimum Rent. NotwItJaataatlJa(
aaJthfq coatala.. henlD to the COatraIT, after the nnt (I") "ear of the term
hereof, umuallaonaMs III Tea&llt's Operatlaa: Costs oltUptloaa Bha11 DOt I__
by ...Oft thaa: (il the CPI acUuatmellt .. Nt forth ID Artlcle XV hereof; OK (11) five
perceat, whlchBftr Is lowu.
G. Tenant's Allowance.
The Landlord' shall not reimburse the Tenant on account of the cost of
construction oC the items designated as Tenant's Work in Exhibit "A" attached hereto,
subject to the tenns and conditions set forth in said Exhibit. Notwithstanding anything
contained in Exhibit 'A' to the contrary, Tenant is not respqnsible for the payment of
any Landlord-provided Construction Items or for the payment of any Service Charges.
3
D:lLepI\L<tIltlllAGREE-DOCS\l.d'~n Iildd.TCsv-CCM (Rev. I).doe
.
H. Securitv Denosit. - NOT APPlJCABLE
I. Tax Rent.
As an initial estimated payment on account of Tenant's proportionate share of
taxes as deCmed 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 Advertisinll.
Tenant covenants and ~s 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 cost of the activities conducted
by such atlSOClation wJa1oJ1. for the Brat (I'" year or the term of t!WI Leue UaIl be
.q.... to J'hoe B1UIAInd DoUara (1500.001, the s_ of $:;1.;) 1 per Y8&F fer e&eh .~e
feet 9f RBSf" ares eeRtained. if1 the demised pFemia.., subject to CPI a~u8tment, as
provided in Article XV of the Lease. lIotwltUtaa4la( Ul)'thIac colltabuld IuarelD. to
tlua OOIlbuy, aft... the first (I") ,.ar or the ~ luareof, aIlIl.... 1Dcntla.. ....
TeDAllt'. Jlarbt:lllc .....d oltUptlou Shallllot IIIcruae by more tIwr.:. (i' the CPI
ad,juatmellt .. set I'orth..... Article XV hereof; or (iii ftw pereellt, whichenr Ie
. low..
Tenant shall also pay to Landlord as its contribution to the Advertising Program
for the Shopping Center the lIum wJa1ch for the Brat 11") year of the term of t:hla
Lease UaIl lie equal to Two B_dred J'lfty Dollarll ('250.00', of $ 1. Hi fler ye&r fer
eael\ 8El\i.lH'e feet ef fleH ana sstNaiRea in the semised ,..mi.e.. Tenant's Advertising
Program payment and Marketing Fund payment shall be made in monthly installments,
together with payment of Fixed Minimum Rent, and said Advertising Program payment
.hall be subject to CPl adjustment in the same manner as Tenant'. Marketing Fund
payment as provided in Article XV of the Lease. l'I'otwfthat....II..C uythJq oolltalD.ed
here.... to the coatrary, after the ant 11",:year ofthe term hereof, ua....lacre....
III TeDAllt'. Mnrtlallltl Propam oltllptlou sJaal1 DOt 1IIcn_ It:y _ tJwa: (II
the CPI atijaatmellt .. eet forth III ArtIcle XV hereof; or (UI ftw percellt, whicheve~
Ie lower.
K. Prooortionate Cost of Security.
In the event Landlord elects to provide seeurity for. the Shopping Center, Tenant
shall pay u _t w!dob for the ftrat (I'" year of the term of t!WI Le... shall Ite
equal to Two HluI.4nd J'Ift:y DoUara ('~50.00I, monthly, in advance, as additional
rent, together with each monthly installment of Fixed Minimum Rent, without demand
or setofI. lfotwlthatallodmC anythiDa colltatne4 herelll to the eolltrary, after the Brat
f1'" year of the term luareof, aIlIlua1 IIIcreuee .... Teuaat'. Coat of 8ecarft)'
oltUp.tlo_ ahall.llot. Iaoreue by more tJum: (II the CPI .cijaetlll.llt .. .et forth ....
ArtIo1e XV hereof; or (Ullh-e percellt, whlche.... Ie lower.
4
D:lLepllLalldllAGREE-DOCSIIad-Loe-GiIM.. n.ld- TCBY-CCM (R... I).do<
.. amSYRt eftll8::l te eRe twelfth. (l/~tR) sf tile JlMEklet e1itaineEl By multilpi}riR8 die Reer
area afth.e liemi&e~ }1.~_:...e.B By 1M &:IB&1mt af *1.1i.
L. J,andlord and Tenant agree that Tenant sha1l not be required to pay any
Fixed Minimum Rent or additional rent for the Storage Area, provided that Tenant ahall
pay the Utility Charge, ae dermed in Section 12.04 of thie 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 of the Lease as
fully &8 though set forth at length in the Lease; Rider, if any, Exhibit "A", Exhibit '8',
and Ezhibit 'C'.
(Slpature. appear OIL the lollowUI( pac..J
.5
D:\LopIl1alIcH\AGREE-IlOC8\lIld-LIMIJIMn Field-- TCBV.cCM (IIev. I~doe
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Lease to be duly executed the day and year 6r8t above written.
(Corporate Seall
CROft AllBRICAlf CAPtl'AL CITY
A880CJA'l'S8, L. P., A rdU.snVAlIIA
LIIIl'1'BD PAl.t.lt_IDP, BY: CROW1f
AV'leJtICAlI CAPITAL CITY
A880C1A'l'S8 (A WBOLLy-oWRED
IIUII8lDIARY or ~Wlt AllBRICAIf
REALTY TRUST) A DItLAWARB
JroSJD:88 TRUST. rra 80LB GUERAL
PM-Ink
A1:1.Kft:4tJJ~
Rou14 P. Rulaak
8eontuy
By:
(Corporate Seal}
COOKJB8 PLUS, mo..
aav:aw ......18. me.,
T / A IIR8. nm.D8/1'CBY
ATTB8T:. t~~, ~ 11101 L
8eontuy
By:
GJ.'::r'''''J. Preei4eat
6
D:\LepNMlldllAGRE&-DOCSllod.Lao-02\Mn fleld-TCBy;cCM (!l<v.I).do,
RIDER
1. h....Wlt'. .t.t..t; of.".......t..llltioD..
(a) Tenant may, at ita option, elect to t.rminate this Lease on the last day of the third
month of the third (3<d) full year of the Lea.. term (h.reinafter ref.rred to as the 'Termination
Date') if and only if Tenant'. Gro.. Sale. as defined in Section 2.02 hereof, do not reach or
exceed the .um of Two Hundred Twenty-five Thousand DoIla1'8 ($225,000.00) during the second
(2nd) fullleaee y.ar or the term of this Lease. -
[b) T.nant shall notify Landlord in writing of Tenant'. election to tenninate this Lease no
later than eixty (60) da;ya after the end of the eecond (2'>4) fuIlleaee year in the term of this Lease.
To b. effectiv., ouch notice ehall be accompanied by a certified cheek, payabl. to Landlord, in an
amount equal to the total of all om.ms due Landlord under the Lease (including, without
limitation, Fixed Minimum Rent, Percentag. Rent, Tax R.nt, Tenant'. Proportionat. Share of
Operating Coat., the Utility Charge, Marketing FundI Adverti.ing payments and Tenant's
Proportionat. Share of S.curity through the T=ination Date.
(c) T.nant'. .Iection to terminate the Lease, as aforesaid, .hall be .ffective only if the
.lection is made during the re.pective time period herein provided, with time being of the ....nc..
and if Tenant Is not in default of ita obligations under the Lease .ither on the date notice of
termination is given or on the Termination Date.
(d) In the event that Gross Sales exceed the aforemention.d threshold during said -
second (2") full lease year, or if Gro88 Sales do not exceed said amount and Tenant e1ecta not to
give notice, or falls to give notice, then in .ither event, this right of termination shall lapse and be
of no further force or effect.
2. ......IMI..... ofl....."..
Mter the commencement of the tenn of this Lease, Landlord shall not lease space in the
Shopping Center to any tenant (other than Tenant h.reunder) whose priDlaly .... Ilo tile _Ie of
yoprt, loe enam, fla90Nd lee or cootlea pFiRBillalln18m... ie lb., .ale af )OeIfliFt (the .Other
Tenant"). In the event Landlord violat... the provision. of thi.- paragraph, Tenant'. 80Ie and
exclu.ive remedy .hall be a fifty percent (50%) reduction in Fixed Minimum Rent payable
h.reund.r effective upon the opening for bueine.. in the Shopping Center by the Other Tenant
("Rent Reduction").
Tenant'. right to the Rent Reduction shall continue until the earlier to occur of:
(i) the expiration or .arlier tennination of the Other Tenant'. lease term; or
(ii) Tenant is in default of any of ita ob1lgation. under this Lease beyond any applicable
cure period.
In no event .hall the provisions of this paragraph apply to:
(i) Any present or future department .tore within the Shopping Center; or
D:\LqI\lLaU.H\AGJlJ:E-DOCSIIs.d-lM-G:I\Mn F1e1d.TCBV.ccM (Ilev.I~""
(ii) Any tenant or occupant exi.ting a. of the date of this 1.0.... that i. permitted under Ita lease
to oelI yogurt, Ice _ 1Ia'f0ft4 loe or cookie., ita or their re.pectlve sucpeloor.,
replacements and aasijpl.; or
(ili) Any tenant, occupant or owner of any outparcel or peripheral parcel of the Shopping Center.
The rigl1ts conferred to Tenant by this provieion are _nal to Tenant .nd will be nun, void
and of no effect to any aeeignee or IUbtenant, whether voluntarily or by operation of law.
Tenant shall indemnify and hold Landlord harmle.. from any and all claim. that may be
brought apinlt Landlord arising out of the exclusive rigl1ts granted to Tenant herein.
D:lL<callLall,HlAGJU;E-DOCSIInd.IM-02IM.. JIIekI- TCBY-CCM (\m'. 1).<1..
TAWI'R OF CORI......
ARTICLE I ..................._............................................................................................................................... 1
TERM......................................................................................................................................1
SECTION 1.01. Commencinll of the Term............................................................................. 1
ARTICLE n..............................................~...~............................................................................................... 1
RENT ............. ....................................... .............. .................................................................... I
SECI'ION 2.01. Percent.... Rent.. .................... .................................... ................................ I
SECTION 2.02. Grosa Sale. Defined..................................................................................... 2
SECTION 2.03. Percenta... Rent Statementa. .............hh..................................................... 3
SECnON 2.04. I!BJ...........................................,.............................. ................................ 4
SECTION 2.05. Additional Rent......................................................................................h... 6
. ARTICLE In ..........._........._.............._.............._.............._.............._.........................._.....................6
BOOKS OF ACCOUNT AND AUDIT ................,.......................................................................... 6
SECTION 3.01. Tenant'. Record.. ....................................................................................... 6
SECI'ION 3.02. &MIi1. ..... ..... ............ .......... ....... ..... ............ ................'................................ 6
ARTICLE IV ................................................................................................................................................ 7
CONSTRUCTION OF LEASED PREMISES ................................................................................ 7
SECI'ION 4.01. Conlltruction bv Landlord........................................................................... 7
SECI'ION 4.02. Tenant'.ImDrovementa and Fixtures. ......................................................... 7
SECI'ION 4.03. Jl'inanclrur. .............................................. .... ............................................... 7
, SECTION 4.04. Excuoe ofPerfnrm.nce. ...........................:................................................... 7
ARTICLE V ....................-.............._..............................._..........................................._.........................8
CONDUCT OF BUSINESS ....................... ..................................................... .................... ........ 8
SECI'ION 5.01. UIIe o(Premioea. ......................................................................................... 8
SECTION 5.02. Stora...... .........................,....... ....... .......... .......................... ................... ..... 8
SECI'ION 5.03. Additional Uoe of the Prernioes.........................h......................................... 9
SECTION 5.04. Ru1ea and Remlation.. ............................................................................. 10
ARTICLE Vi.............................................................................................................................................. 10
GRANT OF CONCESSIONS ..h..............................,....................................... ................... ....... 10
SECTION 6.01. Condition. to Grant. ................................................................................. 10
ARTICLE VB............................................................................................................................................. 11
COMMON AREAS ... .................................. ................................................... .......................... II
SECI'ION 7.01. Definition: Control. .............................,..................................................... II
SECTION 7.02. ParkiDll FAdHtle.. ...............................................................,..................... II
SECI'ION 7.03. Roof. Walla. Chang... and Addition. to Center....;...............,...................... 12
SECJ10N 7.04. Rioht to V..liV"ate. ..................................................................................... 12
SECI'ION 7.05. Ex......""................................................................................................... 12
SECTION 7.06. Common Area Pavment. ........................................................................... 13
SECI'ION 7.07. ProDOrtionab! Coat ofSecuritv. ................................................................. 14
ARTICLE VIn .......................-................................................................................................................. 14
SIGNS; AWNINGS; CANOPIES; FIXTURES; ALTERATIONS ..................................................... 14
SECTION 8.01. Sim'l8 AwninlZB and Canonies. .................................................................. 14
SECTION 8.02. Prooertv in Demiaed Premisea................................................................... 15
SECTION 8.03. Imorovementa and Alterations. ................................................................. 16
ARTICLE IX ........................................................................................m................................................... 16
MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES...................................,.. 16
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D:\L...I\Leo.. BodIot\Mn. 'leld'.. TCBY (CCM).docIM... F1e1.....TCBY (CCM)
SECI'ION9.01. Re'llairs and MaJntenance bv Tenant......................................................... 16
SECI'ION 9.02. StIUctural ReD8irs. ...................:............................................................... 17
SECI'ION 9.03. Surrender of Premi"".. ............................................................................. 17
ARTICLE X................................................................................................................................................ 18
INDEMNIFICATION; SUBROGATION...................................... ............................. ................... 18
SECI'ION 10.01. Indemnification and Waiver of Claim....................................................... 18
ARTICLE XI ...............................................,..................................................................................._....... 19
INSURANCE ........................................................................... ...................................... .......,. 19
SECI'ION 11.01. Insurance. .................................................,......................:.....................19
SECI'ION 11.02. Insurance Provision.. ............................................................................. 19
SECI'ION 11.03. Ell'ecton Insurance..............................................................,.................. 19
ARTICLE XII.................................................................._..........................................._........................20
UTILITIES............................................ ................................................................... ..... ......... 20
SECTION 12.01. Utiliti...........................................................;.;.......................... ......... ..... 20
SECI'ION 12.02. ADDlication For Utilitie.. ......................................................................... 21
SECTION 12.03. ODeration ofHeatinJr and Air-COnditioninll.............................................. 21
SECTION 12.04. Utility Chanze Defmed......................................,...................................... 21
ARTICLE XIII ...................................._......_......_......._..................................................._.....................21
ESTOPPEL CERTIFICATE; SUBORDINATION; ATTORNMENT........................................... ...... 21
SECI'ION 13.01. Execution of Eaton",,1 Certifu:ate. ...........................................................21
SECTION 13.02. FailUN! to RY...,.,'t.e EstnDnel Certiftcate.................................................... 21
SECI'ION 13.03. Subordination and Attornment. .............................................................. 21
ARTICLE XlV;...........................................................................................................................................22
ASSIGNMENT AND SUBLET1'ING .............................. ........ ......... ................... ........................ 22
SECTION 14.01. AIlAi"""'~nt and SUblettinll. ...........................................................,........22
SECTION 14.02. ^DDIit-at1nn to Assian or Sublet. .............................................................. 23
SECTION 14.03. COov of A"';""ment or Sublea"". .......................................................,.... 23
ARTICLE XV ............................................................................................_.............................................. 24
MERCHANTS' ASSOCIATION; PROMOTION FUND; ADVERTISING ......................................... 24
SECI'ION 15.01. Merchants' A.sociation. Promotion Fund and Adverti.inll. ...................., 24
ARTICLE XVI.................................................,....,.................................................................................... 25
DESTRUCTION OF LEASED PREMISES ....................... ...... .............................. ... ................... 25
SECTION 16.01. Total or Partial De.truction.......................................................:............. 25
SECI'ION 16.02. Partial De.truction of Shonninll Center. ......................,........................... 26
ARTICLE XVIl.................................................................._......................................................:............26
EMINENT DOMAJ'N ...................... ................: .............................. ............. .............................. 26
SECTION 17.01. Total Condemnation. .............................................................................. 26
SECfION 17.02. Partial Condemnation. ............................................................................ 26
SECfION 17.03. Partial Condemnation of Shoooin. Center............................................... 27
SECfION 17.04. Landlord'. DIUI1A...A .............................................................................. 27
SECfION 17.05. Tenant's Dsm.""s. ................................................................................. 27
ARTICLE XVDI...........................................................................................................................................27
BANKRUPl'CY OR INSOLVENCY .............. ....................................... .............................. ......... 27
SECfION 18.01. Bankruntcv or Insolvencv. ...................................................................... 27
ARTICLE XIX.............................._........................................................................................................... 28
EVENTS OF DEFAULT; LANDLORD'S REMEDIES.................................................................. 28
SECfION 19.01. Events of Def'ault. .................................;...........:..................................... 28
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SECTION 19.02. Deh'berate Events of Default.................................................................... 29
SECTION 19.03. Termination. ................... .................................... ..........,..,..;.. ........... ...... 29
SECTION 19.04. Rilrht of """""a..wn. ........ ........................................................ ................ 29
SECTION 19.05. f.dd;titmal Rem"'!;". of Landlord.....................................;....................... 30
SEC'l10N 19,06. r.nnhoo_inn ofJudln'ftent. ..............................................................,.........31
SEcnON 19.07. Waivers. ..........................,:.........................................;........................... 31
ARTICLE XX._......_..._.........................................................................._.....................................31
MISCELLANEOUS .......... ..............:............................................................................... ......... 32
SECt10N 20.ol. Acceaa bv.Landlord........................,........................................................ 32
SEcnON 20.02. Holdina Over. .......................................................................................... 32
SECflON 20.03. 91]lY'~.lIOr.................. ............. ..........,.... ... ... ................ ........................... 32
SECt10N 20.04. Ouiet EnioYment.....................................................................................33
SECTION 20.05. ~. ...................................................................................................33
SEcnON 20.06. Cu.tom and Vas"", ................................,......................'........................ 33
SEcnON 20.07. A........ and Satiafaction. ......................................................................... 33.
SECTION 20.08. fbfUrrnaneeo(Tenant's Covenants. .::.................................................... 33
SECTION 20.09. EntiM Am-eement....................................................................................34
SECTION 20.10. No PartnerahiD. ............................................................................,......... 34
SECTION 20.11. ~. .................................................................................................. 34
SECTION 20.12, CaDtions and Irtdex................................................................................. 34
SECTION 20.13. Tenant Defined: U"" of Pronoun. .................,......................................... 35
SECTION 20,14. Neaation ofPerllonal Liabilitv.........,........................................................ 35
SECTION 20.15. Effect of C"'..overmnent:a..1 J .imitation an Rents and Other Chllrves. ............. 35
SECI'ION 20.16. Partiallnvaliditv: Seoarat.e Covenants..................................................... 36
SECI'ION 20.17. "-~,-dina. ..............................................................................................36
SECI'ION 20.18. Bralcm-aae Commlasion. ..,..............................................................,........36
SECI'ION 20.19. Conatructlon. .........................................................................................36
SECI'ION 20.20. Peroetuitv.... .......... ....... ................................................. ......................... 36
SECI'ION 20.21. Choice of Law. ...........,............................................................................36
SECI'ION 20.22. Joint Preaaration. ........... ...... ................. .................................... .... ......... 36
SECTION 20.23. Interlineation................................................. .............. ........................... 36
SECI'ION 20.24. Submiaalnn of Lease to Tenant. .............................................................. 36
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D:ILopIIL.... _\MrL Field'.. TCBl' (CCM).doelMn. Fldd.. TCBY (COI)
.
.-
LBASB AGD.........
ARTICLB I
TBRJI:
SECTION 1.01. Commenclnll of the Term.
(a) Th. "original term" of this Le.... (hereafter defmed) and T.nant'. obliption to pay
rent and occupy the demieed premise. in accordance with the term. hereof shall commence on
the earlier of the following dates (such .arlier date being h.rein called the "commencement date"):
(I) on the date s.t forth in Section "9" of the Ind.nture of Leas. or (2) the date on which T.nant
.hall firat open the demised pr.mise. for bu.in....
. (b) At any time afte!". the comm.nc.ment date of the term of the Lease the parties
.hall CllCCUte and d.1ivcr to each oth.r, at the option of Landlord, eith.r an in8trUm.nt in
recordable form or a letter agreement prepared by Landlord, wh.rein Tenant shall: (1) certify that
the Lea.. is in fuU force and effect and (2) certify the commencement and termination dates of the
origina1 term of this Lea... .
(c) This Le.... and the tenancy h.reby created shall cease and determine at the end
of the tenn 11.reof without the neceBBity of any notice from .ither Landlord or T.nant to termin..te
the sam., and Tenant hereby waives notic. to vscate the premises and agrees that Landlord shall
be entided to the benefit of all provisions of law respecting the summary recovery of possession of
premi_ from a tenant holding over to the same extent as if statutory notice had been given.
(d) The period commencing on the date hereof and tennins.ting on the date
immediately prior to the comm.ncement date is hereby referred to ... the "initial term", and the
periocl from the commencement date to the clate of the expiration or earli.r termination of this
Lease shall be ref.rred to herein a. the "original t.rm", For the purposcs of this Lease the words
"th. term of this Leasc" and "term hereor .haII be deemed to mean the initial term and the
original term of this Lease and all exten.ion. or renewal. th.reof.
ARTICLB U
REIff
SECTION 2.01. Percentalle Rent.
(a) The p.rc.ntage Rent shall be payable without prior demand and without any
s.toff or deduction whatsoever at the times ..t forth h.reinafter at the place then fJXCCl for the
poyrnent of PixecI Minimum Rent.
(b) Not later than thirty (301 day. after the expiration of the fU'St "lease y.ar"
(hereinafter defined) of the term hereof and, unless Landlord exerciSC8 its option a8 set forth in
the .next scnte!'ce h.reof, thereafter not later than thirty (30) days after the expiration of each
subsequent 1ease year in the term h.reof, Tenant shall pay to Landlord the Percentage Rent due
for the leas. year in question. In the ev.nt th..t Percents&" Rent shall be payable for any Ie....
year in the tenn hereof, after the expiration of the first lea.. y.ar containing twelve (12) compl.te
cal.ndar months, Landlord, at Landlord's option to b. exerci8ed by written notice to T.nant, may
require Tenant to pay, ... additional rent, togeth.r with each monthly installment of Fixed
Minimum R.nt due h.reund.r commencing with the fll'8t such payment du. immediately after
the receipt by Tenant or such notic. an amount .qualto on.-twelfth (1/12th) of .ighty .percent
(80%1 of the Percentage .Rent payable for the immediately preceding lease year. Thereaft.r,
Tenant shall continu. to pay such estimated payments of Percentage Rent together with .ach
monthly installment of Fixed Minimum Rent due for .ach caI.ndar month in the term hereof;
provided, however, that the amount of such .stimated monthly paym.nts or Percentage Rent
may, at Landlord's option, be adjusted at the expiration of each subsequent l.ase year after
receipt by Landlord of Tenant's statement ref.rred to in S.ction 2.03(b] to an amount .qual to
one-twelfth (I/I2th) of eighty percent (80%) of the Percentage Rent payable for the lea.. year
immediately preceding &uch adju.tment and commencing with the paym.nt of FiJ<ed Minimum
R.nt du. immediately after receipt by Tenant of notic. of such adjustment. T.nant shall continu.
to pay 8uch adjusted amount until the next adjustment. Although ..timated Percentage Rent
shall b. payable monthly s. sfore.aid, the final computation and payment shall be on an annusl
basis.
. I
D:1L<pl1Ltuc __... Fld\l',-TCBY (CCM).dotlMn. Pield..TCBY (CCM) .
lcl Whenever used in this Lea";' the words 'lease year" shall mean the twelve (12)
full caleJ>dar months of the term commencing with the lirat day of the term of this Lease, provided
the commencement of the term of lI1is Lease is on the first day of the month or, if the term of this
Lease commences on any day other than the lirat day of t!>e month, then with the lirat da,y of the
month immediately following the CODUllencement date and each succeeding twelve (12) month
period. In the event tho.t the lirat Ot Iut lease year aha1l cllIl8ist of 1e88 than twe1ve (12) full
calendar months, the Percentage Rent Oross Salea Base for such shorter 1eaae year ,shall be
deemed In be that portion of such Sales Base obtained by. multiplying the applicable Percentage
Rent Oross Sales Base eet forth in the Indenture of Leaee by a fraction, the numerator of which
shall be the number of days contained In such shorter lease year and the denominator of which
shall be three hundred sixty-five (365). In the event the amount of the Percentage Rent Gross
Sales Base eet forth herein is subject to adjustments during the term of this Lease, and the date
on which such adjustment is to occur (hereinafter referred to as the 'Rental Adjustment Date") is
other than the fnt day of "lease year, the Percentage Rent Oro88 Sales Base fur the lea... year in
which the Rental Adjustment Date shall fsll shall be the sum, of: (a) the lesser Percentage Rent
Gross Sales Base set forth in the Indenture of Lease multiplied by a fnoctlon, the numeralnr of
which shall be the number of day. in the period commencing on the flnlt day of the leue year in
which the Rental Adjustment Date ahall fall and ending on the da,y immediately prior to the
Rental Adjustment Date and the denominator of which shall be three hundred oixt;y-tive i365l,
plus (b) the greater Percentage Rent Gross Sales Base set forth in the Indenture of Lease
multiplied by a fraction, the n1,lmerator of which shall be the number of days in the period
cODUllencing on the Rental Adjustment Date and ending on the last day of the lease year in which
the Rental A<\justment Date shall fall and the denominator of which shall be three hundred sixty-
five (365).
tal It ill eKprlltNy lHldl!lF8.1B~ BREi agAI.II that l.s.ndIUM &S8. Rat a_sider the ~lIed
MiBimUm RlRt in :..__1.1' 8 feiF and. afI'IfWIlt:e feRtal far t:ke demis." ,rIMA.I. Mil ">>8Uw. Bet BW'1le
entere.d iMe 1hi8 L.I.8 \HH!DD Tenant hall B9lig&ted keeU te JMlY PerelR tr iF RHt 114\188 l.arui:lsr6
8J1:fJ!B~1 ts Iftl'Jll.Rl.R~ ill! FiNelli Uiniltw. .Reat $8 ~rawd. &well fail' &ftB adlUl.llMe FeIN8l ntum.
'Ale..'_". if. m ,.... sr at "1'1t \1118 ~) ef 1ft! flJ'IIt\M.. fi) luY 1.&88 JoeuB in. 1:91 tlFBl h_ud.
TeaMt IhaD Ret have ""Il ailitHed te pay P$fsentOW JiIeHt in the am8\lRt as set in the
IailMK\H'I at b.IRBe. LaftdleAl may, at.. 9JBBJI. (1) t(.1L~~&l. \hie 1 nn. liJll9B watt,. BaSis' te
Teaut gWeR at any time -:JtthiR Bin (Ii) MURtha after the nsei.pt 113- WU'UI18N. sf ~ant'8 BR&1i8:l
atatBmlRt sf Q.F8118 8al~8 fer 1N.8k third fuR leaee "eM'. (If. if IHIi_. tM due ..... t}UINlei) aft.
thie leEln Bh&R tlRBinate SlullJl!I R\iII ana 'I."aiEl lIin~ (60) .aye after .Im..,. sf Nall BSs.e.; 81 (g)
El.arean ikl!l PlnBR'" r ReAl Crell tall. IiHa set fer. ill ~.BtieE. cO- Ie the HulMKlire af t.eaee
ta B:Il 1HB:811Rt: l'!IIaI to till Q..8. Ralu F8111iJrud IJy 1=MlilBt at tile ell sf the lease year
immlfiiateb- puaeding tile AHa 8ft o.t.1HM baniilefd. Makes tka ele.a.WlIl UFe1JlulH. T-et\aM MaR
th:!u.afteJ' pay te I..lll'ulleN ~_'Rtage ReRt ill BueSlla sf the de8f'u.u. Pnllftta8eR'Rt gR8B
~&l1JB 8a88 reF Illek lUBe year BaRRI the nmai.alier af S:R1 aPll!l g{ dUe 1:.1111 tmBllidiBg 1h.e 1eMle
} ear d.\lfiftg v:h.ieh lb. ParnRt. Rem QF988 Sale, 8a.. Rail lIeeR deSRB.srEij. &Rd saM lease
yeai' tlunafter.
SEcnON 2.02. Orosa Sales Defmed.
(a) The words 'Gross Sales" as used herein shall mean the gros. amount <)f all sales
of all goods, wares and merchandise sold and all services performed by Tenant and/or by any
subtenant, licensee or concessionaire in, at or from the demised premi.es (including, but not
limited to, catalogue sales made at or from the demised premisesl, whether for cash. credit or
other consideration, with such other consideration being determined at fair market value and
financing charges on all Oross Sales (without reserve or deduction for inability or failure to
collect) including, but not limited to. such sale. and'services (1) as a result of transactions
originating in, at or from the demised premise., whether delivery or performance is made from the
elemised premises at from some other place; (2) pursuant to mail, telep!lOne, telegraph, closed 1V
Circuit, Dial-A-Buy, electronic, video, computer, or other technology-based systems and other
deviccs1 automated or otherwise, whether existing now or developed in the future whereby orders
are received at or supplied from the demi.ed premises or (3) which Tenant or any subtenant,
licensee or cotlcessionaire in the normal course of its business would attribute to ita operations at
the demised premises, 'Gros. Sales also include all eleposita not refunded to purcha.ers. Each
sale upon installment or credit shall be treated as a sale for the full price in the month during
which such sale shall be made, irrespective of the time when Tenant aha1l receive payment
2
D:\LqaN.tut BodIaIMr.. Field'.. TCBY (CCl\I).doc/Mn. FI...... TeBY (CCM)
therefor.
(h) The following shall be deducted from Gross Sales if originally included therein, or
excluded therefrom, as the case may be, provided separate records are supplied supporting such
deductions or exclusions, namely: (1) any exchange of merchandlae between stores of Tenant
where such ""hanae is made solely for the convenient operation of Tenant's buaine.. and not for
the purpose of consummating a sale made in, at or trom the demlaed prcmlaes, (2) returns to
shippers or manufacturers, (3) cash or' credit refunda to customers on transactions otherwise
included in Gro.. Sales, (4) sales of fixtures, ma<:hinery and equipment after use thereof in the
conduct of Tenant's business in the demised premi.8es, (51 amounts collected and paid out by
Tenant for any aales tax imPMed by any duly constituted governmental authority provided such
tax is both added to the acIIing price aa a separate and distinct amount in addition to the regular
price of Tenanr& merchandise and paid to the taxing authority by Tenant (but not by any vendor
of Tenant), (6) the amount of any discount on salea to employees, and ('7) receipts from the
permitted pay telephone and vending machines referred to in Section 5.03(rj. No value-added tax,
and no franc;hlae or capital stock tax and no income, gross receipts or similar tax based upon
income, profita or groll8 receipts as such shaD be deducted from GtlllIlI Sale$.
SECTION 2.03. Percent._ Rent Statement..
(a) No later than the thirtieth (30th) day after the end of each calendar month in the
term hereof, Tenant shall .ubmit to Landlord an itemized and accurate written etatement eigned
by Tenant, ita duly authorized officer or dulY authoNied 1'epreeentstive, reflecting the fun amount
of GI'OIl8 Salea made during the preceding calendar month. If the commencement date hereof
shall not be the first day of a caJendar month, the period between the commencement date and
the Iir8t day of the f!tat full calendar month in the term and Tenant's GI'OlMI Sale. during such
period llhaIl be added to the llrst calendar month for both the purpoee of the computation of
Percentage Rent and the pul'pOae ot reporting of GI'OIl8 Sales.
(h) Not later than the date .et forth in Section 2.01(b) hereof, Tenant shall submit to
Landlord a complete written .tatement of Tenant's. Gross Salea for the preceding lease year in
suc;h re&8OII&ble detail as nquested by Landlord, certiflCd by Tenant, ita duly authorlzed officer or
reprceentative, accompenied by a certified statement Signed by Tenant's reauJarly engaged
independent public accountant etating that the GI'OIl8 Salea reported by Tenant are in accord with
the amount thereof eet forth on Tenant's regularly maintained books and records.
Simultaneously 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
lease year, if any. In the event Tenant is making estimated paymente of Percentage Rent and
Tenant is not then in default hereunder or otherwise indebted to Landlord, any excess of
estimated Percentage Rent that Tenant may have paid for such leaae year over the Percentage
Rent actually due for suc;h lease year shall be refunded to Tenant within thirty (301 days;
provided, if such overpayment is for the last lease year, Landlord shall not be obligated to refund
to Tenant the amount of such overpayment until Tenant has fully performed all of its obligations
under the u,ase, is not indebted to Landlord and haa vacated the demised premises in
accOrdance with the proviBion. of this Lease. In the event Tenant is indebted to Landlord for any
reason whatsoever, Landlord ~ deduct such amount owed Cram such overpayment.
(c) The acceptance by ......dlord of payments of Percentage Rent or reports thereof
shall be without p~dice, and llhaIl in no event constitute a waiver of Landlord's rights to claim
a deficiency of such Percentage Rent or to audit Tenant's books and records aa aet forth in
Section 3.01 hereof.
(dj If Tenant shaU fail to deliver suc;h statement as required by Section 2.03(b),
within'tIle period set forth therein and such failure shall continue for ten (10) days after the date
of written notice of such failure Cram Landlord, Landlord ahaJl have the right thereafter to employ
a certified public accountant to make such emmination of Tenant's books ond records as may be
nec..,88J)' to certiJY the amount of Tenont's Gross Sales for said lease year, the certiJlcation so
made shall be binding upon Tenant and Tenant shall 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) days
after the aforesaid notice as a Deliberate Event oC Default.
Ie} Tenant's obligations,under this Section 2.03 shall survive the expiration or
earlier termination of this Lease.
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D:ILep\1I.aK 1Iodla\Mn. FIeld'.. TeDY (CCM).dO<lMr.. Fldd.. TCBY (CCM)
SECTION 2.04. ImI. ..
(a) For the purpoee. of this Section 2.04, the word "taxes" shall include all taxes
attributable to improvementa now or hereafter made to the Shoppin, Center or any part thereof
or attributable to the present or future installation in the Shopping Center or any part thereof of .
fixture., machinery or equipment. all real e.tate taxes. a.....ment.. roll-back taxes or
a....amenta, water and .ewer rent. and other governmental im~tion. and charge. of evet;Y
kind and nature whatsoever. nonrecurring aa well a. recurring. special or extraordinary as well
aa ordinaty. for_en and unfore..en, and each and every in.tallment thereof, which shall or may
during the term of this Lease be levied,' as....ed or imposed. or become due and payable or
become liens upon, or ari8e in connection with ttLe use. occupancy Of poasesaion of, or any
intere.t in. the Shopping Center or any part thereof, or any land, buildings or other
improvements therem and all co.ta and fees incurred by Landlord in conte.ting and/ or
negotiating 88id taxe.. Ie"". all amounta paid ss taxes to Landlord by the occupanta of any
"Separately Assessed Premises" (as defined in Section 2.04{d) hereof). The word "taxe." shall not
include any charge, .uch as water meter charge and sewer rent based thereon, which i.
measured by the con.umption by the actual u.er of the item or ..rvice for which the charge is
made.
(b) For each "Tax Year" (as defined in Scetio., 2.04(e) hereof) during the term of this
Lease, Tenant shall pay to Landlord as additional rent (hereinafter called "Tax Ren!"), the amount
obtained by multiplying the total of all taxes payable during auch Tax Year by a fraction. the
numerator of which shall be the square feet of floor area of the demised premi... and the
denominator of which shall be the square feet of all "leasable floor area" (as defined in Section
2.04(d) hereof) in the Shopping Center computed as of each date Landlord has a right under
Section 2.04(c) to bill Tenant for an inataJ1ment of Tax Rent. On account of Tax Rent. Tenant
shsll pay monthly, in advance, as additional rent, together with each monthly instaJ1ment of
Fixed Minimum Rent, without demand or .etoff. the amount set forth in Section "I" of the
Indenture of Lease. Such amount may be adjusted by Lancllord at any time during the term
hereof to an amount equal to one-twelfth (1/12) of the Tox Rent payable by Tenant for the
preceding Tax Year. If Tenant. payment on account of Tax Rent for any Tax Year eoa:ee<l. the
actual amount payable by Tenant as Tax Rent for such Ts.x Year and Tenant i. not in default
hereunder or otherwise indebted to Landlord. Lancllord shall credit such excess to Tenant's future
tax obligation.; provided. if .uch overp~ent i. for the la.t Ts.x Year. Landlord shall not be
obligated to refund to Tenant the amount of .uch overpayment until Tenant has fully performed
all of it. obligations under this Lease. i. not indebted to Landlord and has vacated the demised
premise. in accordance with the provi.ion. hereof. In the event Tenant is indebted to Landlord
for any reason whatsoever, Landlord may deduct auch amount owed from .uch DVeJ}layment.
(c) Lancllord shall have the right to bUl Tenant lor Tax Rent during each Tax Year
after each receipt by Lancllord of a bill, a.se.sment. levy, notice of imposition or other evidence of
taxe. due Dr payable all of which are hereinafter collectively referred to a. a "tax bill" (whether
.uch bill is a final bill, an e.timate of annual taxes or representa a tax bill based upon a fmal or
partial a.....ment or determination). Tenant .hall pay the balance of ita Tax Rent within thirty
(30) days of receipt from Landlord of a written .tatement ..tting forth the taxes for which
Lancllord has received a tax bill. Tenant'. share of taxes. and Tenant'. paymenta theretofore made
on account oC Tax Rent. In making the computations a. aforesaid, a tax bill or photocopy thereol
.ubmitted by Landlord to Tenant shall be conclusive evidence 01 the amount of the taxes included
in the computation of the Tax Rent in que.tion; provided, however, Landlord .haD have the right
to bill Tenant for Tenant'., share of the Tax Rent for the last lease year in the term hereof whether
or not Landlord .hall theretofore have received a tax bill covering the period from the date of the
tax bill which Cormed the basis of the mo.t recent instaJ1ment on account DC Tax Rent billed to
Tenant to the e"piration of the term hereof. If Landlord has not received a tax bill for such
period, Landlord shall estimate the amount 01 such last inatallment of Tax Rent on the basi. of
information contained in the tax bill mo.t recently received by Lancllord, aubject to acljustment
when Landlord receive. a tax bill which include. the period from the date of .uch tax bill to the
expiration of the tenn hereof. Tenant .hall pay .uch a<\ju.ted amount upon billing by Landlord.
(d) For the purposes of this Lease, the word. "Separately A.....ed Premises" shall
mean only each of the following portion. of the Shopping Center which are in Cact sepal'l!tely
a.....ed Dr for which the amount of taxes actually a......d is readily a.certainable or which are
used in connection with the operation of a department .tore or portions of the Shopping Center
which are owned, leased to or otherwi.. occupied by a department store or portion. 01 the
.
D:~I\Le... BodIet\Mrs. FIeld'... TCBY (CCM).docJM". FI.ld.-TCBY (CCM)
Shopping Center which are owned, leased to, or otherwise occupied by a variety or specialty store.
For purposes of thia Lease a "variety or specialty store" is an occupant which lease. or occupies
15,000 square feet or more of building space in the Shopping Center. For the purpoees of this
Lease the words "leasable floor area" shall mean the square feet of floor area in encloeed buildings
which are erected on portions of the Shopping Center other than Separately Aeseesed Premises
and which .are desianed exclusively for use anp occupancy by tenants other than occupants of
Separately Asseseed Premises and which are open for business by such tenants.
(el For the purpoee of this Lease the words "Tax Year" shall mean the twelve (12) full
calendar months of the term commencing with the January 1st immediately following the
con:unencernent date and ending December 31st of such calendar year and each succeeding
twelve (12) month period thereafter commencing in the term of this Lease; provided, however, the
flfst Tax Year shall commence on the commencement date and terminate on the immediately
succeeding December 31st;
(I) If for reasons other than Tenant's default the term of thia Lease terminates on.a
date other than the last day of a Tax Year, Tenant's Tax Rent aba11 be equitably pro-rated.
Notwithstanding anything herein to the contrary, for the purpose of computing the Tax Rent due
for the flfst Tax Year, all taxes (equitably pro-rated) payable during the calendar year in which the
flfst Tax Year aba11 fall shall be. !leerned payable during the lirat Tax Year.
(g) If, after Tenant shall have made the required annual ~ent of Tax Rent,
Landlord aba11 receive a refund of any portion of the taxes included in the computation of such
Tax Rent, provided Tenant is not then in default hereunder, Landlord aba11 credit to Tenant that
percentage of the net refund after deducting all costs and expenses (including, but not limited to,
attomeya' and appraisers' fees) expended or incurred in obtaining such refund, which the portion
of the taxes in question paid by Tenant bears to the entire amount of such taxes immediately
prior to the refund. Tenant shall not institute any proceedinga with respect to the assessed
valuation of the Shopping Center or any part thereof for the purpose of securing a tax reduction.
In the event the Landlord aba11 retain any consultant to negotiate the amount of taxes, tax rate,
assessed value and/or other factors influencing the amount of taxes and/or institute any
administrative arm/or lepJ proceedings challenging the tax rate, aa..ssed value or other factano
influencing the amount of taxe8. whether or not such action resulte in a reduction in the amount
of taxes, Tenant'a Tax Rent shall include the portion of the lIlllV8\l8te of all such reasonable feea,
reasonable attomeya' and appraisers' feea and all diabunlements, court costa arm other aimilar
itema paid or incurred by Landlord during the applicable Tax Year with reapect to auch
proceedinga which ia obtained by multiplying the aggregate of such sums by the fraction set forth
in Section 2.04(b) hereof.
(hI If at any time during the term of this Lease, under the laws of anyone or more
jurisdictions in which the Shopping Center is located, a tax, imposition, charge, alllle8ll111ent, levy,
excise or license fee is levied on, imposed against or measured, computed or determined, whether
as a substitute or not for the whole or any part of the taJqos now levied, asaessed or imposed on
real estate all such, or there aba11'be levied, assessed or imposed (1) a tax on the rents received
from such real estate, or (2) a license fee measured by the rents receivable by Landlord from
Landlord's Parcel or any portion thereof, or (3) a tax or license fee imposed upon Landlord which
is otherwi.. measured by or based in whole or part upon Landlord'a Parcel or any portion thereof,
or (4) an income or franchise tax, then the aame shall be included in the computation of taxes
hereunder, computed as if the amount of such tax or fee so payable were that due if Landlord's
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,
asses8 or impose a tax, e:xcisc and/or assessment upon Dr against this Lease, the execution
hereof arm/or the Minimum Rent, or any item of additional rent payable by Tenant to Landlord
whether by way or substitution for or in addition to any existing tax or otherwise, and whether or
not evidenced by documentary stamps or the like, Tenant shall be responsible for and shall pay
such tax, excise and/or assessment, or ahall reimburse Landlord for the amount thereof, as the
case may be.
(i) Tenant's obliptions under this Section 2.04 shall aurvive the expiration or earlier
tennination of the term of this Lease.
m In the event of any dispute,.. to the floor area in the Shopping Center or any
portion thereof (other than the leased premises which shall be determined by the provisions of the
Indenture of Lea..), the determination of Landlord's architect sball be binding upon the parties.
'5
o,IL'IIl\Lco.. Bodl..1Mn. Field'.. TCBY (CCM).dodM.... Foel.. TCBY (CCM)
SECfION 2.05. Additional Rent.
, An sums of money or charges required to be paid by Tenant under this Lease, whether or
. npt the same are designated 'additional rent', shall for all purposes hereunder be deemed and
shaD be paid by Tenant as rent. If such amounta or charges are not paid st'the time provided in
. this Lease, they shall nevertheless, if not paid when due, be collectible as rent ~ the next
installment of Fixed Minimum Rent thereafter falling due hereunder and shall bear mterest from
the due date thereof to the date of payment at the higheat rate aDowed by law. .
ARTICLB m
BOOK. OJ' ACCOUJIT DD AUDIT
SECTION 3.01. Tenanes Records.
(al Tenant covenanta and agrees that the business of Tenant and of any subtenant,
licensee or concessionaire upon the demised premises shall be operated 80 that a duplicate dated
sales slip, dated invoice or dated cash register receipt, serially numbered, shall be issued with
each sale or transaction. whether for cash, credit or exchange, and to record all C8.8h sales Tenant
shan utilize, or cause to be utilized, cash registers equipped with sealed continuous total or such
other devices for controning sales as Landlord shaD spprove. Furthermore, Tenant shall keep at
all times during the term hereof, at the demised premises or at the general ofllce of Tenant, fun,
complete and accurate books of account and records in accordance with accepted accounting
practicea with respect to an operations of the business to be conducted in or from the demi8ed
premises including, without limitation, the recording of 01'01III Sales and the receipt of all
merchandise into and the delivery of all merchandise from the demised premises during the term
hereof and shaD retain such books and records, copies of all tax reporta submitted to the
appropriate taxing authorities, as well as copies of contracts, vouchers, check8, inventory record..
dated cash register tapes and other documenta and papers in any way relating to the operation of
such business (all of which are hereinafter collectively referred to as 'books and records'l, for at
least three (31 years from the end of the lease year to which they are applicable, or, if an audit is
commenced or if a controversy should arise between the parties hereto regarding the rent payable
hereunder, until such audit or controversy is terminated even though such retention period may
be after the expiration of the term of, or earlier termination of, this Lease. Such books and
records shall at all reasonable times during the aforesaid retention period be open to the
inspection of Landlord or ita d~ authorized representatives, who shall have full and free access
to such books and records, the right to audit such books and records and the right to require of
Tenant, its agents and employees. such information Dr explanation with respect to such books
and records as may be necessary for a proper examination and/or audit thereof.
(b) In the event Tenant violates the provision a of Section 3.01(al and as a result of
such violation, Landlord, or its duly authorized representative, is unable to conduct a proper
examination and/or audit, the parties agree that Landlord shall have been deprived of an
important right under this Lease and, as a result thereof, will suffer damages in "" amount which
is not readily aacertainable and thua, in IlUcb event, Landlord, in addition to and not in lieu of
any other remedies which Landlord has under this Lease, at law or in equity, shall have the right,
at its option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty
percent (20%) of the greater of (a) Percentage Rent reported for the period or periods in question,
or (bl the annual Fixed Minimum Rent payable for the period or periods in question.
SECTION 3.02. Audit.
If the examination and/or audit referred to in Section 3.01 shall disclose that Tenant has
understated its 01'088 Salea by one percent (1 %) or more for the period being examined, Tenant
shaD pay to Landlord, upon demand, the cost of such examination and/or audit in addition to the
deficiency in Percentage Rent which shall be payable in any event. In addition, Landlord may
treat the existence or such liability as a Deliberate Event of Derault.
6
D:lLcpIlLcuc BodItllMn. Field'.. TCBY (CCM).duclMrL Field.. TCBY (CCM)
ARTICLE IV
OOIf1lTRUCfIOK OF LBA8BD PP..........
SECTION 4.01. Construction bv LmxIIord.
Lendlord, at its coat and expenae, _hall con_truct ~e demiaed premiae_ incorporating in
such con_truction all item of work described as Landlord'_ Work in Exhibit "A" attached hereto
and made a part hereof (all' ouch item'; are herei~r collectively referred to a_ "Landlord'_
Work"). Landlord shall have the excluaive right to determine the architcctural deaign and the
_tructural, mechanical and other -tandard details and specification_ of Landlord'_ Work,
including. but not limited to, the t;ype of materials and the manufacturer and supplier thereof.
. . SECTION 4.02. Tenant'_ ImDrovements and Fixtures. .
(al Within thirt;y (30) days after Landlord's architect providee Tenant with Outline
Plan. for the demised prem.iaea. Tenant shall furnish to Landlord, for Landlord'. approval,
complete working drawing1l and .pecilkations, pursuant to Exhibit "A".
(hI Within ten (10) dsys after the notice of approval of Tenant's complete working
drawing1l and _pecifications by Landlord's architect, Tenant ahall, at its sole cost and ""penae,
subject to any proviaion_ for reimburaement set forth in the Indenture, commence and thereafter
promptly complete all the work and other requirements imposed upon Tenant in Exhibit "A", (aI I
such item_ being herein referred to a. '"l'enanrs Work"l. In the event Landlord, on Tenant's
beha1f, shall perform any work or install any equipment included in Tenant'_ Work, Tenant,
within ftft=n (IS) daya after receipt of a bill therefor, shall pay to Landlord, a_ additional rent, a
aum equal to an sums paid and costs incurred by Landlord in performing such work and/or
instaUing such equipment plus administrative costs of Landlord in a sum equal to twen1;y percent
(20"A.1 of such sum and/or COlts. Notwithstanding anything contained in this Section 4.02 to the
contrary, Landlord shall not be responaible or liable to Tenant, its agents, servants, employees,
licensees, or contractors, or their respective a.gent8, servanta, employees, licensees or conb"actors,.
for any loss or damage to the property of .uch party occurring prior to or subaequent to the
commencement of the term. Nothing in this Lease shall be construed as in any wl\Y conatituting
a consent or reque_t by Landlord, expressed or implied, by inference or otherwiae, to any
contractor, _ubcontractor, laborer, or materialman for the perfoonance of llI\Y labor or the
fumiahing of any materials for any specific or general improvement, alteration, or repair 01 or to
the demised premises or to any buildings or improvements thereonJ or to any part thereof.
SECTION 4.03. Financin2.
Landlord reaerves the right to sever the ownership of or title to the various sections of the
Shopping Center and/or to place mortgages on said sections, in which case the right of Tenant
and other tenants in the Shopping Center will be preaerved by a written declaration or ~ment,
to be Cllccuted by Landlord and duly recorded, creating mutual, reciprocal and interdependent
righto to 1.1.. the parking and other con:unon areas and the utilities and facilities needed for the
fun use and enjoyment of the demised premises by Tenant and other tenants or occupants in the
Shopping Center without impairing any of the duties and obligations of Landlord to Tenant under
this Lease. Tenant shall execute from time to time ouch. instruments reasonably required by
Landlord and its mortgagee to effectuate the provisions of thi. Section 4.03.
SECTION 4.04. Excuae of Perfonnance.
. Notwith_tanding anything in this Lease to the contraly, if Tenant shall be delayed or
hindered in or prevented from performance of any act required hereunder by reaaon of any .trike.
lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military
or usurped power, sabotage, governmental reguiations or controls, failure of power, inabill1;y to
obtain any material or service, Act of God or other reason_ of a liIce nature not related to the fault
of Tenant, then pertonnan~ of such act by Tenan t shall be excused for the period of 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 dell\Y; provided, however, the foregoing provision of this Section
4.04 shall not excuse Tenant from the prompt payment of Fixed Minimum Rent, Percentage Rent,
Tax Rent, additional rent or any other payments required by the term of this Lease.
. Notwithstanding anything in this Lease to the contrary, Landlord shall not be deemed in default
7
D:\Lq.~ _..lMn. FieJd'..TCBY (CCM).do<lMr~ F;dd.-TCBY (CCM)
with 'respect to the performance of eny of the terms, covenants and conditions of this Lease if
Landlord's failure to perform such terms, covenants and conditions is due to any strike, lockout,
labor dispute. civil commotion, 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, fire or other casualty or other cause,
whether IIimiIar or dissimilar to those enumerated in this Section, which is beyond the reasonable
control of Landlord.
ARTICLE V
COJlDUCT 0,. BU8ID:88
SECTION 5.01. Use of Premises.
(s) Except as otherwise specifiCally provided herein, commencing on the
commencement date and thereafter for the balance of the term of this Lease, Tenant shaD
continuously occupy and use the demised premises lO1ely for conducting the business specified
in the Indenture of Lease as the permitted use, and will not use or permit or suffer the use of the
demised premises for any otherbuainess or purpose. In addition, Tenant agrees that Tenant
shall not opentte or cause or permit to be operated any catalogue, mail, or telephone order sales
in or from the demised premises except the incidental aale of merchandise which Tenant is
permitted to sell. over the counter to customers in the demised premises punIU8l1t to the
permitted use set forth in the Indenture of Lea8C. The authorization of the use of the premises for
the busineaa purpoeea set forth in the Indenture of Lease does not constitute a representation or
WaJTllJlty by Landlord that any particular use of the premises is now or will continue to be
permitted under applicable laws or regulations.
(bl Tenant shall not permit, allow or caU8C any of the following to be conducted in
the demised premises: any public or private auction, or any sale which would indicate to the
public. that Tenant is bankrupt, is going out of business, or has lost its lease. Tenant shall not
use or permit any use of the demised premises, except in a manner consistent with the general
high standards of merchandiaing in the Shopping Center. nor ahall Tenanfs advertising indicate
or infer that Tenant is operating Its business in a manner which is not consisterlt with the general
high standards of merchandioins in the Shopping Center. Nothing contained in this Section
5.01(b) shall affect or is intended to affect Tenant's pricing policies.
(c) Because the adequacy of the rental hereunder is dependent upon Tenant's Gross
Sales whether or not Percentage Rent is payable hereunder, Tenant agrees that commencing with
the commencement date end thereafter throughout the term of this Lease, Tenant will
continuously, actively and diligently operate or cause the permitted business to be operated in
good faith end in an efficient, businesslike and respectable manner, maintaining in the demised
premises.a full staff of employees and a full stock of seasonable merchandiae of the quality, kind,
type and breadth which Tenant usually sells, and emp10ying Tenant's best continual efforts and
abilities to the end that the maximum Groas Sales which can reasonablY be produced from the
demised premises shall be produced. Tenant shall not use or permit any use of the demised
premises, or any part thereof, in a manner which in Landlord's opinion. would injure the
reputation of the Shopping Center or the neighborhood of which it Is a pArt.
(dl Throughout the term of this Lease, Tenant shall cause its store to remain open
from 10:00 A.M. until at least 9:30 !>.M. each day of the week end those hours on Sundays and
holidays during which the enclosed mall is open to the public. Tenant agrees that the hour.
during which Tenant is obligated to operate may be changed by Landlord from time to time,
provided that Landlord will not act in a discriminatory manner.
(e' Tenant shall operate and/or advertise the buaineaa operated at or from the
demised premi_ onlY under the name set forth in the fll'st page of the Indenture of Lease,
unless snd until the use of another name is permitted, in writing, by Landlord.
SECTION 5.02. Storue.
Tenant shall warehouse, store and/or stock in the leased premises only such goods,
waree and merchandise as Tenant is permitted and intend. tD offer for sale at retail in, at or from
the leased premises. This shall not preclude occasional emergency transfers of merchandise to
other stores of Tenant, if any, not located within the Shopping Center.
8
D:1L<pl1Leut BodlalMra. Field'.. TCBY (CCM).doclMrL FI,ld.. TCBY (CCM)
. SECTION 5.03. Additicmal Use of the Premise..
Tenant covenants and agrees that Tenant at its own cost and expense:
(al Will keep all exterior and interior store front surface. clean and will maintain the
reat of the demised premises and all corridors and loading areas Immediately adjoining the
demised premises in a clean, orderly and llll1litary condition and free of insects, rodenta, vermin
and other pesta;
(bl Will not permit accumulations of any refuse, but Will remove the same daily and
keep such refu... in odor-proof, rat-proof containers within the interior of the demised premises
shielded from the view of the gcneralpublic until removed and will not bum any refuse
whatsoever but will cause all such refuse to be removed by such penon or companies, including
Landlord, as may be designated in writing by Landlord and will pay all charges therefor; will
secure all wet garbage in heavy-duty trash bags; and will make special arrangements for the
.dispoaa1 of any fala, oils, grea.es and/or batter. If Tenant shall fail to remove all such refuse. or
should fail to make special arrangcmenla for the dispooal of any fats, oils, greases and/or batter,
Landlord may remove or dispose of the same and Tenant shall pay to Landlord all sums and cosla
incurred by Landlord in performing such removal or disposal plus administrative cosla of the
Landlord.in a sum cquall<> twenty percent (20%) of such sums and/or costa as additional rent;
(c] Will replace promptly with glass of like kind and quality any plate glass or
window g\ass of the demised 'premises which may become cracked or broken;
(d) 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 (21
feet of any entnmce from the demised premises I<> the enclosed mall, on the footwalks adjacent
thereto or elsewhere on the exterior thereof;
te) Will not use or permit the use of any applU'8.tus, or sound reproduction or
transmission, Or any musical instrument, in such manner that the sound. so reproduced.
tnmsmitted or produced shall be audible beyond the confmes of the premises, and will not use
any other advertising medium, including without limitation flashing lights, or search lights which
may be heard or experienced outside of the leased premise.;
(I) Will keep all mechanical apparatus free of vibration and noiSe which may be
tnmamitted beyond the confines of the demised premi_;
(g) Will not cause or permit objectionable odors I<> emanate or be dispelled from the
demised premises;
(h) Will not solicit business, distribulC handbills or other advertising matter or hold
demonstrations in the parking areas or other Common Areas;
(il Will not permit the parking of delivery vehicles so as to interfere with the use of
any driveway, walk, parking area, or other Common Areas in the Shopping Center;
Ul Will comply with all notices, orders, laws and ordinances, including all
environmental laws and laws relating to wastes and huardous matcrials and any environmental
state, county or local laws or regulations, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and the Resource Conservation aiul 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 Insurance Companies, the Insurance Services Organization, or other similar body
establishing standards for fu-e in8Ul'lU1ce ratings with respect to the use or occupancy of the
premises by Tenant, and will participate in periodic lire 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 rules,
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
wsste, except as permitted or required by law and subject to the consent of the Landlord and the
issuance of all appropriate licenses and permits and compliance with all laws and regulation,
relating I<> such treatment;
(k) Will 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 entnmce other than on such a mall, In which latter case Tenant shall
use its best efforts to schedule such deliveries outside Shopping Center business hours, except
with Landlord's approval in emergency situations;
9
D:\Loral\laH BodinlMn. Flt/d',- TCBY (CCIII),doelMrI. Fit/do. TCBY (CCM)
(I) . Will light the show windows of the demised premises and exterior signs each clay
of the year to the extent which shall be required by Landlord but in no event later then one hour
aCter the close of the Center;
(ml For any exterior entrance or service door exclusively . serving the demised
premises, will keep all outside areas immediately adjoining the same including. but not limited ~'.
sidewalks and loading docks free from ice and snow and Tenant hereby agrees that Tenant is
solely liable for aRY accidents occurring on said outside areas due or alleged 1D be due 1D any
accumulation of ice and snow:
(n) Will refer 1D the name or the Shopping Center in all advertising done to promote.
sales at the demiaed premi8e8;
(o) Will, if required by Landlord, instaU, inspect and maintain ffitration devices,
including. without limitation, greaee traps, oil splitters and/or acid neutralizers, in and on
Tenant's sewage lines prior to any discharge of water or sewage from the demised premises into
Landlord's sewer lines.' In the event that Tenant shall fail to install, inspect or maintain the
aforeaaid ffitrstion dC'lices, Landlord my undertake such insta11ation, inspection and/or
maintenance and Tenant shall pay 1D Landlord aU sums and costs incurred by Landlord in
performing such installation, inspection and/or maintenance plus administrative costs of the
Landlord in a sum equal to twen1;y percent (20%) of such' sum and/ or costs as additions! rent.
(p) Will not use the plumbing facilities for any other purpose than that for which
they are constructed and will not permit any foreign substance of any kind to be thrown therein
and the expense of repairing any breakage, stoppage, """Jl'Ille or dAmAS". whether occurring on
or 01I the premillCll, resulting from a violation of this provision by Tenant or Tenan~s employees,
agents or invitees shall be borne by Tenant. All greue trap. and other plumbing traps .hall be
kept clean and operable by Tenant at Tenan~s own co.t and expense;
(q) Will not pennit any shopping carts in the Common Areas even if taken there by
cu8tomers;
(11 Will not place or cause Dr pennit to be placed within the demised premises, pay
telephones, vendintl machine. (except those for the exclusive use of Tenant's employee.) or
amusement devices of any kind without the prior written consent of Landlord;
SECI'lON 5.04. Rules and Remlations.
(a) Landlord reserve. the right from time to time 1D adopt and promulgate rule. and
regulation. applicable 1D the demised premise. and the Shopping Center and to amend and
supplement such rules and regulations. Notice of such rules and regulations and of any
amendment and supplements thereto shall be given to Tenant and Tenant agrees thereupon to
comply with and observe all such rules and regulations, provided that, to the extent practicable,
the same shall be applied uniformly to substantially all non-department s1Dre retail tenants of the
Shopping Center.
(h) Landlord's rights and remedies in the event Tenant shall fail to comply with and
observe such rules and regulations shall be the same as though such rules and regulations were
set forth in Section 5.03 of this Lease.
ARTICLE VI
GRAIn' OF CORCJC88IOlf8
SECTION 6.01. Conditions to Grant. .
The pr"""sion against subletting elsewhere contained in this Lease shaU be applicable 80
as to prohibit Tenant from granting concessions without the consent of Landlord for the operation
of one or more departments at the business of Tenant. and any grant of concessions consen~ to
by Landlord shall be subject to the conditions that (a) each such concession which may be
granted by Tenant shall be subject to all the tenns and provision. of this Lease; (bl the Gross
Sales from the operation of each such concession shall be deemed 1D be a part of the Gross Sales
of Tenant for the purpose of determining the Percentage Rent payable 1D Landlord; (c} all of the
provisions hereunder applying to the business of Tenant including, but not limited to, the
provisions of Articles II and III shall apply to each such concession; (d) unless otherwise approved
in writing by Landlord, such department or deparl!flents shall be operated only as part of the
business operation geners1ly conducted by Tenant on the demised premises and under the
advertised name of Tenant; and (e) at least seventy-five percent (75%) of the sales floor area of the
10
D:Il4am- BolIIeoIM.... J>1dd'.. TCIY (CCM).doclMrJ. Fieldl- TCBY (CCM)
leased prmriaes shall at all times be operated directly by Tenant.
ARTICLB VII
COIIMOIIAREAlJ
SECTION 7.01. Definition: Control.
All areaa, lIpllCe, facilities, equipment" and sign., to the extent made available by
Landlord for the common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Shopping Center, and their respective employeea, agents, subtenants,
concessionaires, licenaeeB, customers and other invitees. are collectively referred 'to herein &8
"Common Area". If and to the extent made available by Landlord, Common Areas shall include,
but not be limited to. the sidewalks, parking areas, aCl:e.. roads and drives, driveways, parking
decks, bridgell, Widscaped areas, truck serviceways, tunnel8, loading docks, open and enclosed
pedestrian walkways, corridors and. malls, courts, sta.i.r8, rampsj e1evatDn, escalators, comlort
and first aid .tation., public washrooms, community hall or auditorium, parcel pick-up station.
and utility line.. All Common Areas in or about the Shopping Center shall be oubject to the
exclusive control of Landlord. Landlord shan operate, manage, equip, clean, light, surface and
maintain the Common Areaa all in such manner as Landlord, in its oole discretiOn, may, from
time to time, determine (inclucling. without limitation, the right to keep the enclosed mall open
only during the hours :when the Shopping Center is open for business) and Landlord shall have
the 90Ie right and excluoive authority to employ and discharge all personnel with respect thereto.
Landlord hereby expreaaly reoerves the right from time to time to construct, maintain and operate
lighting and other facilitie., equipment and sign. on all of the Common Areaa; to clean the
Common Areaa: to uae and allow othe.. to uee the Common Area. for any purpooe: to change the
.ize, area, level, location and arrangement of the Common Areaa: to build mu1ti-atoty and/or
subterranean parking facilities; to regulate parking by tenants Iind .other occupanta of the
Shopping Center and their respective employees, agent&, oubtenants, conceaoionairea and
Iicenee...; to enforce parking charge. (by operation of meters, or otherwise) with appropriate
provilion. for parking ticket validation for tenants: to c100e temporari1y all or any portion of the
Common Area. for the purpose of making repair., change. or a1terationB thereto or performing
ncceaaary maintenance in connection with any emergency, in connection with closings reBulting
from adveroe weather condition. or for any other purpoee whatBoever, whether such purpose is
similar or dissimilar to the foregoing; to discourage non-customer parking; to establish, modify
and enforce reaoonable rules and regulations with reapect to the Common Are.. and the uae to
be made thereof. For the tenn of this Lease Tenant is hereby given the Iicenae in common with all
others to whom Landlord ha. or may hereafter grant rights to use, the Common Areas as they
may from time to time exi.t; provided, however, that if such licenoe shall at any time be revoked,
in whole or in part, or the size, area, level, location or arrangement of such Common Areu or the
type of facilitieB at any time fonning a part thereof be changed, altered, rearranged or diminished,
Landiord shall not be .ubject to any liability therefor. nor .hall Tenant be entitled to any
(:ompensation or diminution or abatement of rent therefor, nor shall such alteration,
rearrangement, revocation, change or diminution of such Common AreaB be deemed a
constructive or actual eviction or otherwise be grounds for terminating or ~9difying this Lease.
In order to establiah that the Shopping Center or any portion thereof i. and will continue to
remain private property and to .prevent a dedication thereof or the accrual of any rights to any
peroon or to the public thereon, Landlord hereby reserve. the unrestricted right, in Landlord's
Bole discretion, to cloae alLor any portion of the Common Areas to 8uch extent 88, in the opinion
of the Landlord's counael, may be legally Butlicient to prevent ouch dedication thereof or accrual
of any rightB to any person or the public thereon: provided, however, Landlord reBerve. the right
at any time and from time to time to dedicate to public uae part or all of the ring road., accel8
road, and drive. and utility lines, together with all easement. required to effectuate Bueh
dedicationB, aB it may aee fit.
SECTION 7.02. Palkinll FacilitieB.
. Tenant shall cauae It and its employees to park only in the outer areaB of the parking lot
or Buch places a. provided and deBignated from time to time by Landlord for employee parking.
Within ten (10) days after a requeat hy Landlord, Tenant Bhall deliver to Landlord a liat of
Tenant's and its employees' automobiles, which such list shall set forth the deocription of and the
II
D:\LopNAue _\l\In. Fltld'..TCBY (CCM).docIMrL Fields-TCBl' (CCM)
license numbenl assigned to .uch automobile. and their state'of i.sue. Thereafter, Tenant ohall
advi"" Landlord of any change., additions or deletions in such li.t. If any automobile appearing
on .aid list i. parked in any area of the Shopping Center other than the area designated by
Landlord at any time after Landlord has given notice to Tenant or Tenant's store manager that the
'same automobile has previously been parked in violation of this proviaion, then Tenant shaI1 pay
to Landlord the sum of Twenty-Five Donars ($25.00) per day for each such automobile for each
day (or part thereof) it is parked in violation of this provision. Tenant shall pay such sum to
Landlord within ten (10) daya after receipt of notice from Landlord. In addition to the foregoing,
Tenant hereby authorizes Landlord in such event to remove from the Shopping Center any of
Tenant's automobiles, or automobiles belonging to Tenant's employees, and/or to attach violation
stickers or notices to such automobiles, and Tenant hereby waives and releases Landlord and
hereby indemnifies and holds Landlord harmle.. from all claims, lia.bi1ities, co.ts and expenses
which may &rise therefrom.
SECJ'lON 7.03. Roof. Walls. Chanlle8 and Addition. to Center.
(81 Landlord hereby reserve. the exclu.ive right at any time and from time to time to
use all or any part of the roof and exterior walls of the demised premiees for any purpose; to erect
scaffolds, protective barriers or other aiels to construction on, around and about the exterior of
the demised premises, provided thB.t access to the demised premises ohall not be .ubatantially
denied; to enter the demised premises to ohare the foundations and/or wall. thereof and/or to
install, maintain, use, repair, inspect and replace pipes, ducts, conduits and wires leading
through or located adjacent to the demised premises and serving other parta of the Shopping
Celiter in locations which 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 walls or ceiling apace of the
demised premises, provided that there ohall be no encroachment upon the interior of the demised
premises. Landlord's right hereunder may be exercised by Landlord's designees.
(hI Landlonj.hereby reserve. the right at any time to make alterations or additions
to, and to build additional stories on, and to build adjoining to, the building in which the demised
premises are contained, and Tenant ohall have no interest of any kind whatsoever in the said
additions or additional stores or adjoining buildings. Landlord also reserves the right to en1arge
the area of the Shoppins Center by adding additional ground thereto from time to time and,
whether or not so enlarged, to construct other buildings or improvements in the Shopping Center
at any time and from time to time and to make alterations thereto or additions thereto and to
build additional stones on such building or buildings and to build adjoining the 88me and to
con.truct double-deck elevated or subterranean parking facilities.
(c) If any excavation shall be made or authorized to be made upen land adjacent to
the leased premiaes, Tenant shall afford to the person causing or authorized to cause such
excavation license to enter .upon the leased premises for the purpose of doing such work as
Landlord shall deem necessary to preserve the wallar the building of which the leased premises
form a part from injury or damage and to support the same by proper foundations, without any
claim for damages or indemnification against Landlord or diminution or abatement of rent.
(d) Landlord shall not be lia.ble in any such case for any inconvenience, disturbance,
1088 of businell 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. Riltht to Relocate.
The purpose of the plan hereto annexed as Exhibit "B" is solely to ohow the approximate
location of the demised premises. Landlord hereby reserves 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,
0". subtractions from, and{ or relocations or rearrangements of, the buildings, parking areas, and
other Common Areas (as defined in Section 7.01 hereof) Shown on such plan; provided only that
the size and location of the demised premises shall not be altered and reasonable acccss thereto
ohall not be substantially impaired; provided, however, that Landlord reserves the right to
relocate a kiosk premises, at its sole expense, to a location of equal desirability upon fIfteen (15)
days' notice to Tenant.
SECTION 7,05. Excenses.
Landlord (subject to the Common Area Psyment a. set forth in Sectioq 7.06) will at its
expense operate and maintain or cause to be operated and maintained the COmmon. Areas and
12
D:\LepI\Lea.. Bo....\Mn. Fldd'.-TCBY (CCM).doclMn. F;dd.. TCBY (CCM)
the Shopping' Center. For the purposes of this Lease, "Operating Coste" shall be those costs of
operating and maintaining, or of cauaing the operation and maintenance of, the Commol\ Arellll
and the Shopping Center of which the demised premises forms a part in a manner deemed by
Landlord to be reasonable and appropriate including, but not limited to, all costs and expenses,
whether expended or incurred of repairing. lighting, cleaning, painting, refurbishing, replacing
and maintaining (including. but not limited to, preventive maintenancel and insutiRg the same
with such policies and companies and in such limits as selected by Landlord (including, but not.
limited to, fire insurance with extended coverage, liability insurance covering penoonaJ iI1iury,
deaths and property damage with a persollal injury endonement covering false arrest, detention
or imprieonment, malicious prosecution, libel and slander, and wrongful entry or eviction,
workman's compensation insurance, plate glass insurance, contractual liability insurance and
fulelity bonds); removing snow, ice, ~bbish and debris; inspecting; rental and depredatlon'lover
a period not exceeding sixty (60) months) of machinery and equipment and other non "..restate
assets used in the operation and maintenance of the Shopping Center; repairing and/or
replacing of paving, roofing. curbs, walkways, landscaping, drainage, on-site water lines, sanitary
sewer lines, storm water lines, electrical lines and other equipment serving 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; uniforms and replacement of uniform.; the rental
of music programs, services and loudspeaker systems including the furnishing of c1ectricity
therefor; all charges that may result from any environmental or other laws, ~1C8, regulations,
guidelines or orders; the cost of obtaining and operating public transportation or shuttle bus
systems used in connection with bringing customers to the Shopping Center; the gross
compensation of all personnel required or necessazy to implement the operation, maintenance,
administration, or repair of the Shopping Center including, without limitation, management,
secretarial, oflice, maintenance personnel, the cost of compensating Landlord's off-site personnel
involved in the administration of, and providing services to, the Shopping Center, including,
without limitation, legal, accounting and $CCl"Ctarial personnel, he.scd upon an apportionment of
such compenoatlon smong all propcities in which Landlord Or its afIiliatca own an equity interest.
and to .upervisc and accomplish the foregoing and an administrative charge equal to fifteen
pcn:ent (15%) of the total of all Operating 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 obtained by multiplying (I) the total Operating Costs for such
Accounting Period less all contributions thereto actually made to Landlord by occupants of any
Separately Mse.sed Premisce by (il) 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
leaoed floor area in the Shopping Center. For the purposes of this Section, Ieaoed floor area ohall
mean the square feet of floor srea in enclosed buildings which sre erected on portions of the
Shopping Center other than Separately Aosessed Premiseo as defined in Section 2.04(d), which
sre designed cxcJu8ivcly for use and occupancy by tenants other than occupants of Separately
Assessed Premise. and which are occupied pursuant to an agreement with Landlord by the terms
of which Landlord obtains more than a nominal rental. AU such floor area shall be ao determined
pursuant to the provi.ions of Section 2.04ij) and shall be fIXed as of the last day of the applicable
Accounting Period.
(bl On the fIrSt day of each calendar month during that portion of the term hereof
falling within the fIrSt Accounting Period, Tenant shall pay to Landlord, in advance, and as
additional rent, without demand and without any setoff or deduction, a minimum payment for
Tenant's share of the Operating Costs lIll 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 commencelllCnt 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 After the fIrSt Accounting Period, Tenant shall 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 rent, without demand and without any setoff or deduction, but the aforesaid amount of
Tenant's share of Operating CoSts maybe increased by Landlord after the end of each Accounting
13
D:\LcpIlLcue 1Iodlt.\M.L Fldd'.. TCBY (CCM1.dQclMn. FI,ld.. TCBY (CCMl
Period during the term hereof on the basis of the actus! Operating Costs for the immediately
precedini! Accounting Period. Upon Landlo~d furnishing to Tenant a statement setting forth such
revised operating costs, Tenant shall pay to Landlord such revised share in equs! monthly
installments, each such installment to. be a sum equal to one-twelfth (12th) of such revised
Operating Costs in advance on the flr8t 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 shall 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's proportionate share thereof and payments made by Tenant with respect thereto, In
making the computation, as aforesaid, Landlord's statement shall be conclusive evidence of
Operating Costa. .
(e) If Tenanfs proportionate share of Operating Costs exceeds Tenant's Payments
with respect to any Accounting Period, Tenant shall pay to Landlord the deficiency within twenty
(20) days after the date of the furnishing of the statement from Landlord.
(I) For the purpose of this Lease, the words' "Accounting Period" mean the period
-consisting of twelve.(12) consecutive calendar months commencing on a date determined by
Landlord and each succeeding twelve (12) calendar month period commencing during the term of
this Lease; provided, however, the fU'st Accounting Period shall commence on the date the
Shopping Center f1l'8t opens for business with the public and shall terminate on the date
immediately preceding the date so determined by Landlord.
(Ill If the term of this Lease commences after the date the Shopping Center first
opens for busine.. with the public or terminates (other than by reaaon of Ten ant's default) during
an Accounting Period, Tenant's obligation for Tenant's share of Operating. Costs for such
Accounting Period shall be equitably pro-rated.
(h) Tenant's obligations under this Section 7.06 shall survive the expiration or earlier
termination of the term of this Lease.
SECTION 7.07. ProDOrtionate Cost of Securitv.
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 security determined as follows:
(a) Tenant shall pa,y to Landlord, as additional rent, the amount obtained by
multiplying the total of all coalB and expenses of every kind and nature incurred by Landlord in
providing security for the Shopping Center by a fraction, the numerator of which shall be the
square feet of Door area of the demised premises, and the denominator of which shall be the
square feet of all "tea_ble floor area' (as defmed in Section 2.04(d) of this Lease), but never less
than the amount set forth in Section K of the Indenture of Lease and in the manner provided
. therein. AU such floor area shall be as determined purauant to the provisions of Section 2.040)
and shall be fixed as of the last day of the applicable Accounting Period.
(hI Tenant shall pay any increase in its proportionate coat of security within twenty
(201 d&,y1l after the date of the furnishing of a statement of such charges by Landlord for each
Accounting Period or portion thereof.
(c) Although Tenant shall pay its proportionate share of the cost of security, as
aforesaid, in addition to, and not as a. component of, its proportionate share of Operatinl Coste,
for the purpose of Articles xvnI an<;l XIX and Sections 13.02, 14.01 and 20.02 of this Lease, the
words "Operating CoslB" shall be deemed to include such share of cost of security.
AR1'ICLE WI
810l1'8; AWlIIlIG8; CAlfOPIES; FlXTUR1!:II; ALTBIIATlO1l8
SECTION 8.01. Sims. AwnmKS and Canonies.
(al Tenant shall, st its own risk, lawfully erect illuminated signs, concerning the
business of the occupant of the demised premises, and agrees to maintain said signs in good
condition and state of repair and save Landlord harmless frol;l1 any loss, cost of damage as a
rel!lult of the erection, maintenance, existence or removal of such signs. All signs _ shall be in
14
D:\LcpNAJe BodI..IMn. FlcId'.. TCBV (CCM).doclMn. Fleld,- TCBV (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 vacating the demised premises, the
Tenant aarees to remove sII signa and repair all damage caused bY such removal. Tenant
covenanta that no Dashing, illuminated or paper signs will be used anywhere in the demiaed
premises and sII signing is subject to Landlord's prior written appfOVa1. Tenant shsll not install
or sfIix any sign, device, antenna, fixture or attachment on or to the exterior or interior of the
demised premiees including. by way of illustration, any window or door; nor place any vent, .
structure, building. improvement, eign or advertising device or obstruction of any kind within the
Common Areas or on the exterior or interior walls of the demised premises, withoutlirst obtaining
Landlord's written consent.
(hI Tenant shaD neither place nor maintain nor suffer to be placed or maintained on
the exterior of the demised premises or on the glass of any window or door of the demised
premises which shall be visible from the exterior thereof or within three 131 feet of any such glass
(other than neatly lettered eigns of reasonable size placed on the floor of the display window
identifying articles offered for sale and the price thereof) any eign, awning. canopy, decoration,
lettering. advertising maller 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 lign,
decoration, lettering, advertising matter or other thing as may be approved in good condition and
repair at all times.
(c) Tenant ehall 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 flt8t
obtaining Lancllord's written approval of such painting or decoration.
(d) Tenant shall install and maintain at sII times, subJect.to the other provisionl of
this Section, displays of seasonable merchandise in the show windows (if any) of the demised
premises; and Tenant further agrees that sII articles and the ll1T8Itgement, style, color and
general appearance thereof, in the interior of the demised premieee which shall be visible from
the exterior thereof, including, but not limited to, window displays. advertising maller, ~s,
merchandise and store fIXtUres, ahall be maintained in the premises 80 as to be in keeping with
the character and standards of the Shopping Center.
SECTION 8.02. Prooertv in Demised Premise..
(s) Allleaeehold improvements, such as light fIXtures, heating and air-conditioning
equipment, shall when installed attach to the fee and become and remain the property of
Landlord. Such property shsll not be removed unless replw::ed with like property.
(bl All inventory and all trade fIXtures hereafter installed or placed by Tenant in the
demised premises sball be new, shall remain the property of Tenant and shall be removable by
Tenant at the expiration or earlier tcnnination of the term of this Lease provided that: (1) Tenant
shall not at such time be in default under this Lease, and (2) in the event of the removal of any or
all of such property Tenant shall promptly restore the damage done to the premises by the
installation and/or removal thereof. Should renant faU to so remove Tenant's property and/or to
so restore the premises, Landlord may do so, collecting, at Landlord's option, the coet and
expense thereof, 88 additional rent, upon demand. Any such 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 thill
LeIl8C including, but not limited to, a termination by Landlord pursuant to this Lease, shsll,
unle... Landiord gives Tenant notice to remove any or all of such property, be and become the .
property of Landlord (without any obligation by Landlord to pay compenaation for wch property).
In the event Landlord gives Tenant sucb notice to remove any or sII of such property, Tenant shall
promptly remove such property aa may be specified by Landlord in wch notice. Notwithstanding
anything herein contained to the contrBIy or any decision of any court to the contnuy, the term
"trade fIXtures" .hsll not include any attached leasehold improvementa including but not limited
to air-conditioning. heating. lighting. electrical and plumbing equipment installed by Tenant in
the demised premises. nor any wiring or other apparatus related thereto.
Ie) In the event Tenant ceases its business operation in the demised premises and is
in default with respect to its obligation for the continuous operation of ita businc88. Tenant shall
be deemed to have abandoned the demised premises and all property of Tenant shsll also be
deemed to bave been ahandoned and said property may be retained or disposed of by Landlord as
Landlord desiree. .
15
D:IL<8I1\Le... Bod..,\Mn. FI,ld'..TCBV (CCM).doc/Mn. Fiolds-TCBV (CCM)
SECfION 8.03. Imorovements and Alterations.
(a) Tenant covenants and agrees not to make or permit to be mode any alterations,
improvements and additions to the demised premises or any part thereoC except by and with the
written consent oC Landlord first had. All alterations, improvements and odditions to said
premises shall be made in accordance with all applicable laws and shall at once when made or
installed be deemed to have attached to the freehold and to have become the property of Landlord
and ahall 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 instal1ed, reasonable wear and tear
excepted.
(bl In making such alterations, additions and improvements to the demised premises
and in installing such chattels, equipment and fixtures or doing such other work, Tenant shall
promptly pay all contractors and materialmen so as to minimize the possibility of a lien attaching
to the demised premises or the. Shopping Center, and Tenant shall include in all contracts and
subcontracts for work to be performed on Tenant's behalf at the demisec1 premises' provisions
wherein such contractor or subcontractor acknowledges that Landlord has no liability under
such contracts and IIUbcontracts and that such contractor or subcontractor waives any right it
may have to lien or attach Landlord's parcel or the Shopping Center of which Landlord's parcel is
a part, and should any such lien or notice of intention to perform or furnish materials ("Notice")
be made or filed, Tenant shall bond against or discharge the same or notice of intention to
perform or furnish materials ('Notice") within twenty (20) clays after written re'luest by Landlord.
If Tenant shall fail to cause such lien or Notice to be bonded against or to be dillcharged within
the period aforesaid, then, in addition to any other right or remedy which Landlord may have
under this Le....., at law or in equity, Landlord may, but shall not be oblipted to, diacharge the
same either by paying the amount claimed to be due or by procuring the dillcharge of such lien by
deposit or by bonding proceedings and, in any such event, Landlord shall be entitled, iC Landiord
80 elects, to compel the prosecution of any action for the foreclosure of such lien or Notice by the
lienor with interest, costs and expenses. Any amount 80 paid by Landlord and all costs and
expenses incurred by Landlord in conneclion therewith, together with interest thereon at the
highest rate permitted by law from the respective dates oC Landlord's making of the payment and
incurring or the cost and expense, shall constitute additional rent payable by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand, .
(c) The provisions of this Article shall survive the expiration or earlier termination oC
the term oC this Lease.
ARTICLE IX
1IIAlRTBB'AI'ICI: AI'ID IUlPAJR; 8URRBII'DBR OF LBA8BD PRBIIJ8_
SECTION 9.01. Rellllirs and Maintenance bv Tenant.
(a) Tenant shall at all times at its own expense keep and maintain the demised
premisea (including, but not limited to, all entrances and the inside and outside of all gla88 in the
doors and windows and show window moldings) and all partitions, doors, fIXtures, slgns,
equipment and appurtenances thereof in good order and repair, and in a neat, safe, clean and
orderly condition, including, but not limited to, ressonable periodic painting B8 determined by
Landlord and making all non-structural ordin..ry and extraordinluy, foreaeen and unforeseen
repairs and replacements to the demised premises, including, without limitation, repairs and
replacements to the plumbing and sewage Cacilities within the demised premises or under the
floor slab including Cree Row up to the main sewer line, electrical, heating, ventilating and air-
conditioning system and escalators and elevators, if any, and mechanical system and
installations ~n. Tenant shall not overload the electrical wiring serving the premises or
within the premises, and will install at its own expense but only after obtaining Landlord's written
approval, any additional electrical wiring which may be required in connection with the demised
premi....
(bl 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 penormed
by Tenant or bringing into the premises any property Cor Tenanrs use, or by the installation or
removal of such property, regardless of fault or by whom such damage shall be caused, unless
caused solely by the negligence of Landlord or its servants or employees,
(cl In the event Tenant defaults in the performance to Landlord's satisfaction of any
16
D:\Logal\Lnu BodkllMrs. Fleld'..TCBY (CCM),dO<!Mrs, Field.'TCBY (CCM)
of its obJiptions under this Section 9.01, and such default continues for a period of ten (101 days
after written notice from Landlord (except that in an emergency no notice shall be requiredl,
Landlord, in addition to Landlord's other remedies under this Leaae, at law or in equity, may (but
shall not be oblipted to do 80) cure such default on behalf of Tenant without any liability of
Landlord, ita agents, aervantl, employees, contractors or subcontractors for da.mage to Tenant's
merchandise, fIXtUres or other property or to Tenant's business by reason thereof, and Tenant
shall reiJnburae Landlord, as additional rent, upon demand, for any sums paid or costs incuned
in curing such default, plus administrative costs of Landlord in a sum equal to twenty percent
(20%) of such sums amij or costs.
SECTION 9.02. Structural ReDairs.
(a) Except as otherwise. provided by 9.01(b), stru~ral portions of the premises, the
roof of the demised premises and those portions of the exterior of the demised premises which
Tenant is not oblipted to maintain pursuant to Section 9.01(8) will be repaired by Landlord
provided Tenant gives Landlord notice specifying the need for and nature of such repairs;
provided, however, if LandIon1 is required to make any repairs to such portions of the demised
premises by reason, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's
agent, servants, employees. contractors or subcontractors, or by reaSOn of any unusual uae of the
demised premises by Tenant (whether or not such use is a permitted use hereunder), Landlord
may collect the cost of such repairs, as additional rent, upon demand. For the purpoee of this
Lease, any difference in ftoor level, shifting of floor slab, or deviation in finished ftoor height
resulting from the insertion or construction of an expansion joint or strip in the ftoor slab shall
not be deemed a structural defect requiring repair by Landlord, but rather, a normal construction
practice which shall be Tenant's responsibility to appropriately plan for in its construction and
use of the demised premises. .
(bl If, without Landlord's prior consent, Tenant performs any alterations, additions,
improvements, chanll"S, affixations of chattels or other work which affects the structural portions
of the demised premises amij or the roof of the building of which the demised premises are a part
andj or that portion of the exterior of the demised premises which Landlord is oblipled to repair
purauant to Section 9.02(8) or which affects the structural integrity of the building of which the
leased premises shall form a part, such action by Tenant shall release and discharge Landlord as
of the commencement of such alteration, addition, improvement,. affixation or other work of and
from such repair obJiption and thereafter Tenant agreea to be solely responsible for the
maintenance, repair and replacement of any or all such structural portions, roof, exterior and
building which have been affected as aforesaid; provided, in the event Tenant shall default in the
performance, to Landlord's satisfaction, of such responsibilities, Landlord, in addition to
Landlord's other remedie8 under thia 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,
selVante~ employees, contractors ~r subcontractors fOT dam.age to Tenant's merchandise, fixtures
or other property, or to Tenant's bu8iness by reason thereof, and Tenant shall reimburse
Landlord, as aclditional rent, upon demand, for any sum paid or costs incurred in curing such
default, plus adminjlllrative costs of Landlord in a sum equal to twenty percent (20%) of such
sum andjor C08ts. For the purpo8es of the foregoing, if Tenant performs any such alterations,
additions, improvements, changes, affixations or other work in a manner not consiatent with
Landlord'8 prior consent thereto, such work shall be deemed to have been performed without
Landlord'. consent.
SECTION 9.03. Surrender of Premises.
At the expiration of or earlier termination of the term of this Lease, Tenant shall
peaceably surrender the leased premises in the same condition including, but not limited to, the
conditions of cleanliness, as the leased premises were upon the commencement of the term of
this Lease, ordinluy wear and lear excepted to the extent the leased premises is not required to be
repaired and/or maintained by Tenant and damage by unavoidable casualty excepted to the
extent that the """'e is covered by Landlord's fll'e insurance policy with extended coverage
endorsement, and Tensnt shall sulTender all keys for the leased premises to Landlord at the
place then fixed for the payment of rent and shall notify Landlord in writing of all combinations of
locks, safes and vaults, if any, in the leased premises. Tenant- shall comply with the provisions of
Section 8.02 respecting the removal of its property before sUlTendering the premiaee as aforesaid.
Any proPerty not 80 removed at the expiration of the term hereof, shall be deemed to have been
17
D:IL<pI\L_ BodIa\MI'L Fltld'..TCBY (CCM).dotlMn. Fltld.. TCBY (CCM)
abandoned by Tenant, and may be retained or disposed of by Lanclloni, ae Lan<lloni ehal1 desire,
Tenant'e obliption to observe and perform the covenants set Corth in this Section 9.03 shall
survive the expiration or earlier termination of the term of thie Lease.
ARTICLE X
IImBllllIrICATlOJII; 8UBROGATlOII'
SECTION 10.01. Indemnification and Waiver of Claim.
(lI) Tenant will defend and, except to the extent caueed by the negligence of
Landloni, its qents, servants, and employees, will indemnuy Landlord and Agent and eave them
harmlese from and apinst any and all claime, actions, demages, liability and expenee (inclucling,
but not limited to, attorney's feea and disbursementsl in connection with the 10sa of life, perlOnal
il\iury or dlllllll&" to propert;y or business arising from; related to, or in connection with the
occupanCy Or uae by Tenant of the demilled premises or any part of Landloni's property or the
Shopping Center or occasioned wholly or in part by act or omiNion of Tenant, itIJ <:ontractore,
subeontractoJ1l, subtenants, "licensees or concessionaire., or its or their respective agents,
servants or employees. Tenant shall also pay all coats, expenses ami reasonable attorney'a fees
that may be expended or incurred by Landloni and/or Agent in succeasfully enforcing the
covenants and agreements of this Lease. The provisions of this Section 10.01 shall 8urvive the
termination or earlier expiration of the term of this Lease.
(h) Unless and then 80lely to the extent such dlllllll&" is caused by the nesliient acts
or omissions ot Landlord, Agent, or their respective agents, servants. and employees, neither
Lanclloni, Agent nor their respective agents, servants, employees or contractore ehal1 be liable for,
and Tenant, in conalderation of Landlord's execution of this Lease, hereby relea.... all claims Cor
1088 oC life, penonal il\iury or dllll1llie to property or business suetained by Tenant or any person
claiming througll Tenant resulting from any fire, accident, occurrence or <:omlltion in or upon the
Shopping Center or any part thereof (including, without limitation, the demised premises and the
building oC which the oame ill a parlj, including, but not limited to. such claims for loss of life,
personal injury or dlllllll&" resulting from (1) any deCect in or failure of plumbing, heating or air
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 tank, washstand, water 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 ateam
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 ill a part or otherwise; (7)
the falling .of any fIXtUre, plaster or stucco; (8) broken gl....; (91 any act or omission of other
tenants or other occupants of the Shopping Center; and (101 any act or omiasion of Lan<llord,
Agent or their respective principals, agents. servants and employees whether occurring on, prior
to, or subaequent to the date of this Lease. The foregoing waiver and release is intended by
Lancllord and Tenant to be absolute, unconditional and without exception and to supersede any
SpecifIC repair obligation imposed upon Landlord hereunder.
(cl Laadlorcl will de.... aIld, .,..,.pt to the ateat ca....d 11, lb. a...._. or
Taaaat. Ita aceatIJ, .enRIIb. ud ..plo,.ea, ..W bulslIIDIfJ TellaDt a:acl _ ~t
UmlJMs hm a:acl .......at ..., aDd aU claim., actloa.. ........... lIaIIWq. a:acl __
(lac1l1c1iq, lIut DOt IbaJted to. atto....,'. r.ea and cUlltunelll.at'lla coaaeotloa wilb lb.
Ioaa or. ute. penollll1l1\111l')' or clama,. to property or Ioo....ft... uIaID& &011I, related to, or III
_ with tile .............t a.d control or the CoIIIIII_,Areaa orth. BJaopplDc: CI.W
01' _loaed ..boDy or Ia part by act or omlaaloa 01 l.."dl<n'd. It. coatncton,
sabcoatracton, nbtaaaatll. Ucea.... or l:once..lonaJr"t or It. or their re.peOuve qeab,
........tIJ 01' alllploJ-. Laad1OI'd Iba11 alao pay aD _ta. expo..... Dd rea80_b18
. attor...,... ... thet .., b. _d.d or laoun.d b, T_t Ia 81l~1Iy .ar_1De the
COYelWltIJ RIId QnellleatIJ or tbla Le.... The provialo... or thla 8eotIoa 10.01 1ba11_
tbe t__tlo. eN: earlier axplnltloa or the term or thJa Leue,
18
D:\LcpN.a.. BodIooIMn. FIeld'.. TCBY (CCM).doclMr~ Field.. TCBY (CCM)
ARTICLE XI
IlfSURAlfCl:
SECTION 11.01. insurance.
(a) Tenant will keep in force in companies licenaed to do buainesa in the state where
the Center is located at Tenanh expense at all timea during the term of this Lease and during
such other times as Tenant occupies the demised premises or any part thereof:
(1) Public liability insurance with respect to the demised premises, the sidewalks
abutting.and acijoining the demised premise., if any, and the bu.ine.. operated by Tenant and
any subtenants, licensee. and conce.sionaire. of Tenant in or from the demised premises with
minimum limits of One Million Dollars ($1,000,000) combined aingIc limit for bodily iqjury and
property dlUllll&", and including coverage for liability aoaumed under contracts. _
(2) Workers' Compensation in.urance which will provide for aU Tenant's
employee. the statutory benefits for the .tate in which demiaed premise. are located. and will
also include Employers' Liability insurance with minimum limits of One Hundred Thousand
Dollars ($100,000.00).
(3) Such other type. of insunonce (excluding rent inaurance in favor of Landlord)
and .uch additional amounts of insurance as. in Landlord's judgment, are necessitated by good
business practice.
(h) Prior to delivery of po.....ion of the demised premise. and within ten (10) days
of each occa.ion of renewal or replacement of in.urance coverage, throughout the term of the
Lease, Tenant .haIl submit to Landlord, marked "Attention insurance Department", a valid
Certificate of Insurance, signed by an authorized agent of the iIlliUrer, which shall evidence all the
insurance coverage required by this Section t 1.01 and which .hall set forth the following:
(I) Landlord is named an 'additional insured" on the public liability insurance
policy.
(2) At least thirty (30) days prior notice shall be given to Landlord as to any
policy canceDalion or any material alteration in coverage.
(3) The public liability insurance policy is an "occurrence" fonn of coverage;
(claims-made insurance i. not acceptable).
SECTION 11.02. insurance Provisions.
It is a condition of this Lease that the Tenant shall in.tall and maintain, in proper
working order, an Underwriter'. Laboratory and Rating Bureau approved 1\utomatic
Extinguishing System in the hood. and duct. serving such Tenant'. cooking equipment and deep
fat fryers. The system shall also be arranged to shut off the electrical current and/or ps supply
to the deep fat fryers when the extinguishing .ystem i. activated. No change affecting the
operation of this system shall be made without giving prior notification to the Landlord.
SECTION 11.03. Effect on Insurance.
Ca) Tenant will not do, omit to do. or suffer to be done or keep or suffer to be kept
anything in, upon or about the leased premises which will violate the provisions of Landlord'a
policies insuring _in.t lo.s or damage by fire or other hazard. (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 companies acceptable to Landlord,
provided Tenant is first given adequate notice of the requirements of such policies. If anything
done, omitted to be done or .ulTered to be done by Tenant, or kept or sulTered by Tenant to be
kept in, upon or about the premis.. shall by itself or in combination with other circumstances
exiBting at the Shopping Center cause the premium rate of rue OT 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 time fIXed by the appropriate underwriters
with regard to the use of the demised premi..s for the purposes pennitted under thl. Lease Or to
such other property in the Shopping Center for the Use or use. made thereof, Tenant wiD pay the
amount .of such increase or, in the event that other circumstances existing at the Shopping
Center shall have contributed to such increase, such equitable portion of such increase as
19
O,1Lep1lLcue _1Mr~ FIeld'.. TCBY (CCM).dO<lM... Fl,ld.. TCBY (CCM)
reasonably determined by Landlord, as additional. rent upon Landlord's demand and will
thereafter pay the amount of such increase, 8S the same may vary from time to time, with re8pect
to every premium relating 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 reclilY the condition existing on the demised premises which caused or was a
contributing cause of the increased premium rate in the event that the Tenant should fs,i! to do so
and may charge the cost of such action to Tenant as additional rent. payable on demand. In
determining whether 'increased premiums are the result of Tenant's use of the leased premises. a
schedule. issued by the organization making the insurance rate on the leased premises. showing
the various components of such rate, shall be conclusive evidence of the several items and
charges which make up the fire insurance rate on the leased premi.... .
(b) If for any reason whatsoever ineluding. but not limited to, the abandonment of
the demised premises. Tenant's failure to pay the insurance premium or Tenant's failure to
occupy the demiaed premises as herein permitted. Tenant fails to provide and keep in force any or
all of the insurance policies set forth in Section 11.01 hereof, then in such event Tenant shall
indemnify and hold Landlord harmless against any IOS8 which would have been covered by such
insurance.
(c) If Tenant shall not comply with its covenants made in this Section. J,andlord in
addition to Landlord's other remedies hereunder may (but shall not be obligated to) cause
insurance. as aforesaid, to be issued. and in such event Tenant agrees to pay the premium for
such insurance as 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 xn
UTILITl88
SECTION 12.01. Utilities.
(a) Tenant shall be solely responsible for and promptly pay all charges for fteEK;
water (including standby). electricity, sewer rents or charges. spl'iRldeF ~s, .".P.T. 8r SIA..-
alaFIR ~. water treatment facility charges. and any other utility used or consumed in the
leased premises or in providing heating and air conditioning to the leased premi.... without
limitation. together with all connection and service charges and all taxes or other charges levied
on such utilities, said responsibility commencing on the date Landlord notifies Tenant that the
leased premises are ready for Tenant's commencement of Tenant's Work. Should Landlord elect
or be required to supply or make available any utility used or consumed at the demised premiaes.
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 therefor
in excess of the as8re8ate annual amount therefor which Tenant would otherwise be obligated to
pay for similar utility usqe and service as a retail customer of the public utility or municipal
authority then supplying such utility to the Center. Tenant agrees to purchase froin Landlord
and pay for electricity to be used by Tenant at the demised premises in accordance with the
Utility Schedule attached hereto as Exhibit "C".
{bl In the event that Tenant does not have a water meter installed in the leased
premise., Tenant will pay to Landlord, as additional rent, every month in the term of this Lease
the minimum charge for the size of the line installed in the leased premises in accordance with
the rates established from time to time by the company or authority supplying water to the
premise..
(c) In the event the local authority. municipality, utility or other body collects for the
water and/or sewerage or s&nltaIy service and/or consumption. as aforesaid, Tenant covenants
and agrees to pay the _ter and sewer rent charge (both minimum and otherwise) and any other
tax, rent, levy, connection fee or meter or other charge which now or hereafter is aascased,
imposed Dr may become a lien upon the demised premises, or the realty of ..-hich they are a part,
pursuant to law, order or regulation made or issued in connection with the usc, consumption,
maintenance or supply of water, or the water or sewerage connection or system.
(d) In no event .hall Landlord be liable to Tenant in damages or otherwise for any
interruption, curtailment or suspension of any of the foregoing utility services in the event of a
default by Tenant under this Lease or due to repairs, action of publiC authority, strikes, acts of
20
D:\Lopl\Lco.. BodIaIMno FloId'..TCIlV (CCM).doc/Mn. FIeld>- TCBV (CCM)
God or public enemy, or any other cause, whether similar or disaimi1ar to the aforesaid.
SECTION 12.02. ADD)i{!Ation For Utilities.. ,
Tenant shall make all appropriate applicationa to the local utility companiea at auch
times aa ahall be necessary to inaure utilitie. being available at the demised premisea no later
than the commencement of the term. .and pay all required depoaita, connection feea and/or
chargea for meters within the applicablc time period set by the local utility cOmpany.
SEC'I10N 12.03. Oneration of Heatinll and Air-Conditionin2.
Tenant muat operate heating and cooling equipment to maintain atore temperaturea at
auch temperaturea aa will prevent the freezing or burating of pipea and the draining of heated and
chilled air from the enclosed mall.
SECTION 12.04. Utility ChanIe Defined.
All ""ma to be paid by Tenant in accordance with thia Article XII are coUectively herein
referred to as the "Utility Charge".
ARTICLE XIII
BBTOPPEL CEKTU'ICATB; BUBORDIlIATlOJI; ATTOIIIOIBIlT
SECTION 13.01. Execution of Estoooel Certificate.
At any time, and from time to time, upon the written request of Landlord or any
mortgagee, Tenant, within twenty (20) daya of the date of such written request, lllII'ees to execute
and deliver to Landlord and/or such mortgagee, without chazgc and in a form satisfactory to
Landlord and/or auch mortgagee, a written atatement: (a) ratiJYing this Lease; (h) confirming the
commencement and expiration dates of the term of thia Le....; (cl certifying that Tenant ia in
occupancy of the demised premisea, and that the Lease is in full force and effect and. has not
been modified, assigned, supplemented or amended except by such writings as shall be stated; (d)
certifying that all conditions and agreements under this Lease to be satisfied or perfonned by
Landlord have been satisfied and performed except aa shall be atated; (e) certifying that Landlord
ia not in default under the Lease and there are no defenses or offsets apinat the enforcement of
this Le.... by Landlord, or atating the defaults and/ or defensea claimed by Tenant; (f) reciting the
amount of advance rent, if any, paid by Tenant and the date to which such rent has been paid; (g)
reciting the amount of security deposited with Landlord, if any; (h) certifying compliance with the
environmental covenants of the Le.... as set forth in Section 5.030) of the Lease; and (ij any other
information which Landlord or the mortgagee shall requiTe.
SECTION 13.02. Failure to """""'''e Estoooel Certificate.
The failure of Tenant to execute, acknowledge and. deliver to Landlord and/or any
mortgagee a atatement in accordance "with the provisions of Section 13.01 above within the period
set forth in Section 13.01 shall constitute an acknowledgment by Tenant which may be relied
upon by any peraon holding or intending to acquire any intereat whatsoever in the demised
premi.... or the Shopping Center that this Lease has not been aasigned, amended, changed or
modified, is in full force and etrect and that the Fixed Minimum Rent, Tax Rent, Tenant's share of
Operating Costs, Utility Charge, Percentage Rent and additional rent have been duly and fullY
paid not beyond the reapective due datea immediately preceding the date of the requeat for auch
statement and shall conatitute as to any persons entitled to rely on such' statements a waiver 01
any defaults by Landlord or defenses or offsets against the enforcement of this Le.... by Landtord
which may exilt prior to the date of the written requeat, and Landlord, at its option, may treat
such lailure as a Oeliberate Event of Oelault.
SECTION 13.03. Subordination and Attornment.
Tenant agrees (a) that, except a5 hereinafter provided, this Lease is. and all of Tenant's
rights hereunder are and shall alwaya be, subject and subordinate to any mortgage, leaaea of
Landlord'a property (in aaIe-leaseback) purauant to which Landlord has 0; ahall retain the right 01
possC88ion of the demised premisea or security inatruments (collectively called 'Mortgage") that
now exist, or JD&.y hereafter be placed upon the demised premises or the Shoppmg Center or any
part thereof and to all' advancea made or to be made thereunder and to the interest thereon, and
21
D:IL<pI\Loo.. BodIn\Mrs. Fldd'.-TCBY (CCM).do<IMn. Fields-TCBl' (CCM)
all renewals, replacements, modifications, consolidation., or extension. thereof; and (bl that if the
holder of any such Mortgage ("Mortgagee"), the purchaser at any Coreclosure sale or at any sale
under a power of sale contained in any Mortpge, or the owner, at the time of th.e hereinafter
described request. of the fee estate or the leasehold estate of the real estate upon which the
demioed premises is situate (hereinafter reCerred to as Landlord Cor purposes oC this Section) shall
at its sole option so request, Tenant will attorn to. and recognize such Mortgagee, purchaser, or
Landlord. as the caae may be, as Landlord under thi. Lease for the balance then remaining of the
term oC this Lease, subject to all terms of .this Lease; and (c) that the aforesaid provisions shall be
self operative and no Curther instrument or document shall be nece88aIy unle.. required by any
such Mortgagee, purchaser, or Landlord. Notwithstanding anything to the contrary set Corth
above, any Mortgagee may at any time subordinate its Mortgage to this Lease, without Tenant's
consent, by execution of a written document subordinating such Mortgage to this Lease to the
extent set forth therein. and thereupon this Leaae shall be deemed prior to such Mortgage to the
extent set Corth in such written document without regard to their respective dates of execution,
delivery andlor recording and in that event. to the extent set forth in such written document
such Mortgagee shall have the same rights with re.peet to this Lease as though this Lease had
been executed and a memorandum thereof recorded prior to the execution, deu.ery and recording
oC the Mortgage and as though this Lease had been assigned to such Mortgagee, Should
Landlord or any Mortgagee or purchaaer desire conrmnation of either such subordination or such
attornment, a8 the case may be, Tenant upon written request, and from time to time, will execute
and deliver without charge and in Corm oatisCactory to Landlord, the Mortgagee or the purchaaer
all instruments andlor documents that may be requested to acknowledge such subordination
and/or agreement to attorn, in recordable Corm.
ARTICLE XIV
A88IGKMBln AND BUBLBTT1l'IG
SECTION 14.01. A8.nanment and Sublettiml.
(a) Tenant shall not voluntarily, involuntari1y, or by operation of law, assign,
transfer, mortgage or otherwise encumber (herein collectively refem:d to as an "assignment", this
Lease or any interest of Tenant herein, in whole or in part, nor sublet the whole or any part of the
demised premisea. nor pennit the demised premises or any part thereof to be uoed or occupied by
others, without first obtaining in each and every instance the prior written consent of Landlord.
Any consent by Landlord to an aBBignment or subletting or use or occupancy by others shall be
held to apply only to the specific transaction thereby authorized and shall not constitute a waiver
oC the necessity Cor such consent to any subsequent assignment or subletting or use or
occupancy by others, including, but not limited to, a subsequent aaaignment or subletting by any
trustee, receiver, liquidator, or personal representstive oC Tenant, nor shall the reCerences
anywhere in this Lease to subtenants, licensees and concessionaires be construed' as a consent
by Landlord to an assignment. If this Lease or any interest herein be ....igned or if the demised
premises or any part thereof be sublet or used or occupied by anyone other than Tenant without
Landlord's prior written consent having been obtained thereto, Landlord may neverthe1e8ll collect
rent (including. but not limited to, Fixed Minimum Rent, Percentage Rent, the Utility Charge, Tax
Rent, Tenant's proportionste share of Landlord'. Operating Coats, and additional rent) from the
assignee. subleasee, user or occupant snd apply the net amount collected to the rents,herein
reacrved. and furthermore.in any such event Tenant shall Pay to Landlord monthly, as additional
rent. the excess of the consideration received or to be received during such month for such
a8llignment, 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 demioed premi..s 80 assigned, sublet
or occupied. No such assignment, subletting, use. occupancy or collection shall be deemed a
waiver of the covenant herein against assignment. subletting or use or occupancy by others, or
the acceptance of the assigneet subtenant, user or occupant as Tenant hereunder, or constitute a
release oC Tenant Crom the further performances by Tenant of the terms and provisions of this
Lease. If this Lease or any interest of Tenant herein be assigned or if the whole or any part of the
demioed premises be sublet or used or occupied by othera, after having obtained Landlord's prior
written consent thereto, Tenant shall nevertheless remain fully liable Cor 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:ILcpIIL.... BodltIIMn. FI..d.... TCay (CCM).doclMro. fi..d... TOY (CCM)
(bl If at any time during 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 subsidlaty, ohalI be
transferred by sale, aasignment, bequest, inheritance, operation of law or other disposition so as
to result in a change in the present effective voting control of Tenant or of such parent
corporation by the person or persons owning or controlling a majority of the shares of Tenant or
of such parent corporation on the date of this Lease, Tenant ohalI promptly notify Landlord in
writing of such change, and such change in voting control shall constitute an aesignment of this
Lease for all purposes of this Section; provided, however, that this provision shall not appl,)' in the
event that over fifty percent (50%) of the voting power of the Tenant corporation or of such parent
corporation is held by fifty (SOl or more unrelated shareholders or dis(ributed to such number of
unrelated shareholders in a public distribution of securities. This clause shall not apply to a
corporation whose stock is traded in a nationally recognized stock exchange.
(cl 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 oC this Lease owns a general partner' I interest ceases to
own IlUch general partner's interest, such cessation of ownership shall constitute an assignment
of this Lease for all purpo&es of this Section.
(dl Upon the occurrence of any of such events as described in Section 14.01(a),
14.01(b), or 14.01(c) hereof, whether voluntary, involuntary, by operation of law, or othetwise,
without the prior written consent of Landlord (whether or not Tenant shall have given notice
thereof to Landlordl, Landlord may treat any such occurrence as a Deliberate Event of Default.
SECJ'ION 14.02. Acclication to Assi2n or Sublet.
In the event that Tenant should desire to assign or. sublet the whole or a part of the
leased premiaes, Tenant shaI1 submit to Landlord a written statement, signed by Tenant, setting
forth the following information:
Is) The name and address of the proposed assignee or subtenant and the charscter
of ita busine...;
(b) The activities to be conducted in and the use to be made of the pretniaes by the
proposed assignee or suhtenant;
(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
aosignee or subtenant sufficient to enahle Landlord to evaluate its financial responsibility;
Ie) A representation that the proposed assignee or subtenant is not a tenant,
subtenant, assignee or occupant of any space in the Shopping Center.
During a period of thirty (30) days after receipt by Landlord of the foregoing information,
Landiord may elect (II to consent to such proposed assignment or subletting; or (2) to refuse or
withhold consent to such assignment or subletting; or (3) terminate this Lease, in wbicb event
this Lease shall terminate and end upon thirty (30) days' written notice of Landlord's decision to
so terminate. Such election may hi. exercised by written notice served upon Tenant within IlUch
thirty (30) day period, but if no such notice is selVed, it shaD be deemed that Landlord has elected
to refuse or withhold consent of the proposed assignment or subletting. Landlord agreee not
unreasonably to refuse or withhold consent to such proposed assignment or subletting, but it
shall conclusively be deemed that Landlord's refusal or withholding of consent is not
unreasonable if the proposed assignee or subtenant, or the character of the business of the
proposed assignee 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 less desirable; and it shall
conclusively be deemed that Landlord's refusal or withholding of consent i8 not unreasonable if
the sublease rent is greater than the rent paysble uncier this Lease, unle88 Tenant agrees In
writing that IlUch exee88 shall be paid to Landlord.
SECJ'ION 14.03. CODV of All8il!Ilment or Sublease.
Landlord's consent to any all8ignment or sublease shall not be effective until one (1) fully-
executed copy of any written instrument of assignment or sublease has been delivered to
Landlord.
23
D:1Les1llL<ae IIedlesIMn. Yield's- TCBY (CCM).do<IMn. Field.. TCBY (CCM)
ARTICLB xv
.........IIAJ1T8' A88OCIATlOIl; PROIIOTIOI'f P11I'D; ADVBRTI8IIIG
SECTION 15.01. Merchant.' Association. Promotion Fund and AdverlisinR.
(aJ Tenant covenants and agrees to become a member of any Merchants' A.sociation
formed by the tenants of the Shopping Center and approved by Landlord, and to maintain such
memberahip throughout the tenn of this Lease. Tenant further agrees to pay as its shim> of the
cost of the activities conducted by such association the sum set forth in Section "J" of the
Indenture of Lease or such other sum as shall be determined by the Merchants' Association.
hereinafter referred to as "Merchants' A980ciation Payment", payable in advance in monthly
in.tallments to the Merchants' Association. If Landlord elects, Landlo!'d may collect said
Merchants' AHOciation Payment on behalf of the Merchants' Association in which case Tenant's
Merchants' Association Payment shaU be payable monthly together with inata1Jments of Fixed
Minimum Rent. In addition, should Tenant fail to make any such Merchants' A88OCiation
payments when due, Landlord, on behalf of the Merchants' Aseociation, may oollect said
payments in the same manner and with the same rights granted to Landlord under the Leaee for
the collection of rent or other charges. Commencing with the second Lease 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 Merchants' A88OCiation
payment for each Lease Year, commencing with the second Lease Year, shall be determlned as
follows: Using the "Consumer's Price Index -- U. S. Average, All Item and Commodity Groups",
published monthly in the "Monthly Labor Review" by the United States Department of Labor, for
the month and year during which the Lease was executed as the denominator and the index
number for the first month of each Lease Year thereafter as the numerator, multiply said
resulting fraction times the above stated Merchants' Association rate. In the event that the
Bureau of Labor Statistics shall 'change the base period, the new index numbers shall be
substituted for the old index numbers in making the above computation. In the event the
Consumer's Price Index of the United States Bureau of Labor Statistics is diocontinued,
comparable statistics on the purchasing power of the consumer dollar as published at the time of
said discontinuation by a responsible financial periodical of recognized authority shall be used for
making such computation. Tenant also agrees to cooperate fully with the Landlord and other
tenants of the Shopping Center in promoting the use of trade names and slogans as may be
adopted for the Shopping Center, and all promotional and advertising campaigns, and pay any
special asaessments as are required by the Merchants' Association. Within thirty (30) days alter
billing, Tenant agrees to pay In addition to the foregoing dues, a .ingle Initial a88C..ment equal to
the amount .et forth in Section "J" of the Indenture of Lea.. for promotional expenses in
introducing the shopping center to the market area. Tenant agrees that Landlord or ita designee
may in its sole discretion and under its exclusive control and supetviaion provide the Il88Ociation
with any or all of, and be reimbursed by the association for providing the following; (ij the servicea
of a marketing director and all staff and outside con.ultant. (including professional marketing
service organizations) deemed nece....ry by Landlotd to carry out effectively the marketing and
public relations objectives of the Merchants' A.sociation including. without limitation, all payroll,
payroll taxes and employee benefits of-ll1lY such director and staff; (iij such reasonable amount of
spsce within the shopping center as may be necessary for the Merchants' Association. the rental
therefor to be comparable to the rentals for similarly sized tenant space in Landlotd's building;
(iii) all actual costs Incurred in advertising and promoting the Shopping Center, including without
limitation radio, newspaper, television, direct and indirect coats or services. artwork, copy,
printing.. paper, stationerY and supplies; and (iv) such office equipment, utilities and telephones
as may be deemed necessary by the marketing director.
(h) Notwithstanding that Landlord may form the Association as set forth above,
Landlotd or the Landlord's designee reserves the right at any time and from time to time, without
Tenant's -coneent 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
formation of the Promotion Fund, the Association will turn over all amounts in its po.aeaslon to
Landlord or the Landlord's designee which wiD open and maintain a bank account, separate from
all of its other bank accounts, into which Landlord or the Landlord'. designee shall deposit the
promotion fund contribution paid by Tenant, the aforesaid amount received from the Association,
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as well as other contrib";tions which Landlord or the Landlord's designee m~ receive from time to
time from other tenants of the Center (the aggregate of ouch 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 designee, the Association shall be liquidated and diaaolved. Commencing with the .
formation of the Promotion Fund, and thereafter while the Promotion Fund is in existence, Tenant
ohaIl pay to Landlord or the Landlord's designee, as Tenant'. contribUtion to the Promotion Fund,
the initial charge and an annual charge ('Promotion Charge"l which shall be In the same
amounts, including any CPI adjustments. as the assessment Tenant would be required to pay to
the A88Ociation if the same was in eITect, except that the annual charge shall be payable monthly
together with installments of Fixed Minimum Reilt. The Promotion Fund shall be used by
Landlord or the Landlord's designee to pay all coats and expen...,s associated with the
implementation of an ongoins program for the promotion of the Shopping Center, which program
may include, without limitation, special events, shows, dispiayll, signs, seaaonal events.
institutional advertising for the Shopping Center, Promotional literature and other activities
designed to attract customers to the Shopping Center. In connection with the operation of the
Promotion Fund, Landlord or the Lanlllord's designee ohaI1 have the right to employ or cause to
be employed all promotional services and personnel which, in the judgment of the Landlord or the
Landlord's designee, are nece88aIY to administer such fuild and such promotiolla1 activities, and
ouch peraonnel shall 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 aI80 be used to defray the cost of administration of the Promotion Fund and
such adverllslng programs including, without limitation, the salary of the promotion and
advertising director and related administrative personnel, rent and insurance. Landlord shall
have no ob1ip.tion to expend on such ongoing programs any funds in excess of the annual sums
contributed to the Promotion Fund after payment of all such administrative and other expenses.
(c) All sums required to be paid by Tenant pursuant to this Article x:v shall be
deemed "additional rent", shall be payable without demand, deduction or offset, and for the
purposes of Articles XVIII and XIX of this Lease shall be referred to as the Promotion Charge.
(d) Notwithstanding anything to the contrary contained herein, Landlord or the
Landlord's designee reserves 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 Landlord's
designee to perform the services theretofore performed by the Association or Promotion Fund.
Upon the formation of such entity, the provisions of Sections (s) and! or (h) hereof which are then
in eITect shall 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 payments theretofore
required to be paid by Tenant to the Association or Promotion Fund.
(el If the Shopping Center, as initially constru9led, shall be expanded by adding floor
area equal to more than ten percent (10%) of the floor area initially contained in. the Shopping
Center, Tenant shall pay to Landlord, on demand, an amount determined by (i) multiplying the
floor area of the demised premises by the average rate per square foot of all contributions which
tenants of the expansion area shall become obligated tomalce 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
DBSTRUCTION OF LEASBD PRBID8E8
SECTION 16.01. Total or Partial Destruction.
(a) If the leased premises shall be damaged by fire or other casualty covered by
Landlord's policies of fire and broad fonn extended coverage insurance but are not thereby
rendered untenantable in whole or in part, 8Ubject to the limitations hereafter Bet forth, Landlord,
at its own expense, may cause ouch damage to be repaired, and the rent sha11 not be abated. If
by reason of such occurrence, the premises shall be rendered untenantable in whole or in part,
subject to the limitations hereafter set forth, Landlord, at its own expense, may cause the "~lrtTll"V
to be repaired and the Fixed Minimum Rent shall be abated proportionately as to the portion or
the prentiaes rendered untenantable unlil the completion of Landlord's repairs thereto. If the
Ie....d premises sha11 be damaged or destroyed by a fire or casualty. in whole or in part, and the
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Landlord, at ita option, decides not to repair and restore the premises, Landlord shall have the
right, to be exercised by notice in writing delivered to Tenant within sixty (60) days from and after
the occurrence of such damage or destruction,. to cancel and terminate this Lease. 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 said destruction of the premises ereurs within the last three (3) years of the term of
this Lease, said cancellation to take effect ninety (901 days from and after the receipt of such
notice by the other party, and in such event this Lease and the tenancy hereby createe! shall
cease as of the aforesaid cancellation date, the rent to be adjustee! as of such date; provided,
however, that if Landlord shall commence repairs or reconstruction of the destroyed premises
during the period prior to the cancellation date, the tenancy shall remain in effect and said notice
of cancellation shall be conoidered void. In no event shall Landlord be obliptee! to expend for any
repairs or reconstrUction pursuant to this Section i6.01 an amount inexce.. of the insurance
proceeds recovered by it and allocable to the damage to the leased premises after deduction
therefrom of Landlord's reasonable expenses in obtaining such proceeds and any amounts
required to be paid to Landlord's mortgagee. Nothing in this Section shall be construed to permit
the abatement In whole or in part of the Percentage Rent, and the calculation of Percentage Rent
shall be governed solely by Section 2.01(c) hereof.
(hI 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 limitee! to the building sheIL Tenant
at Tenanfs expense shall promptly perform all repairs or restoration not required to be done by
Landlord and shall promptly re.enter the demised premises and commence doing busin_ In
accordance with the provioions of this Lease. Landlord shall not be liable for delays occasioned
by adjustment of losses with insurance carrier. or by any other cause so long as Landlord shall
proceed in good faith.
(cl Notwithstanding anything set forth herein to the conirary, Tenant shall be
responsible for all repairs and replacements of damage and/or destruction of the leased premises
necessitated by burglary or attempted burglal)", or any other illepl or forcible entry iIito the
demised premises.
SECTION 16.02. Partial Destruction of Shoooin" 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 fire or other cause notwithstanding that the
leased premises may be unaffected by such fire or other cause, Landlord shall have the right, to
be exercised by notice in writing delivered to Tenant within sixty (60) days after said occurrence,
to cancel and terminate this Lease. Upon the giving of such notice, the term of this Leue shall
expire by lapse of time upon the fIfteenth (15th) day after such notice i. given and Tenant shall
vacate the leaaed premises and surrender the same to Landlord.
ARTICLE XVII
ElUll'EII1' DOMAIR
SECTION 17.01. Total Condemnation.
If the whole of the demised premises shall be taken by any public or quasi-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 possession of
the demised premises is required to be surrendered to the condemning authority, and Tenant
sha1l have no claim apinst Landlord or the condemning authority for the value of the unexpired
term of this Lease.
SECTION 17.02. Partial Condemnation.
I! any part o! 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 sgainst Landlord or the condemning 1iU thority for the value of any unexpired term
o! this Lease, In the event such partial taking or conveyance is not extensive enough to render
. the premises unsuitable for the business of ~enant, this Lease shall continue in full force and
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.
effect except that the Fixed Minimum Rent and lhe Percentage Rent Groaa SaJ"" Base shall each
be reduced in the same proportion that the floor area of the demiaed premisea ao taken or
conveyed beara to such floor area immediately prior to auch taking or conveyance, auch reduction
. commencing ... of the date Tenant is required to surrender pooaesaion of such portion and with
""'peel to the daya during which the demiaed premises are not open for buajneaa the calculation
of Percentage Rent ahall be adjusted in accordance with Section 2.01(c) h.reof. Landlord shall
. promptly restore the leased premises, to the extent of condemnation proceeds available for such
purpoae, as nearly as practicabl. to a condition comparable to their condition aa the time of such
condemnation less the portion lost in the taking or conveyance and Tenant ahall promptly make
all neceaaary repaira. restoration and alterations of Tenant's fIXtures, equipment and fUrnishinga
and shall promptly re-enter the leased premises and comm.nce doing buain.. in accordance
with the proviaiona of thia Lease. For purposes of determining the amount of l\mds available for
reetqtation of the leaaed premi6es from the condemnation award. said amount win be d~med to
be that part of the award which remains after payment of Landlord'a reaaonable expenaea
incunul in recovering aame and of any amounts due to any mortpgee of Landlord. and which
represents a portion of the total sum 00 available (excluding any award or other compenaa.tion for
land) which ia equitably allocable to the leased premises.
SECTION 17.03. Partial Condemnation of ShoDDinR Center.
(a) If more than one-third (1/3) of the floor area of the buildinga of which the
demised premisea are a part or more than one-third (1/3) of the leaaable floor area of the
Shopping Center or more than one-third (1/31 of the Common Ar.... ahall be ao taken or
conveyed, or (b) if any part of the parking area in the Shopping Center is ao taken or conveyed
and as a result of such partial taking or conveyance the size, layout or location of the remaining
parking facilities will violate the requirements of the applicable zoning or aImIIar law (or any
permitted variance or exception thereto), then in any or all such events notwithstanding the fact
that the demised premi.... are not 00 taken or conveyed, Landlord shall have the right and power,
at its option to be exercised by written nqtice to Tenant, to terminate this Lease effective either
the date title vesta in the condemning authority or the date Landlord is required to deliver
poaaesaion of the part 80 taken or conveyed; provided, however, in the event of a taking or
conveyance deocribed in clauae (bl. if Landlord shall take immediate ateps toWards .1imlnating
such violation, this Lease shall be unaffected and remain in full force and effect. In any event,
Tenant shall have no claim against Landlord or the condemning authority for the value of any
unexpired term of this Lease.
SECTION 17.04. Landlord's DAmARes.
In the event of any condemnation or taking as hereinbefore provided, whether whole or
partial, the Tenant shall not be entitled to any part of the award as damagee or otherwise for such
condemnation and Landlord and any mortgagee of Landlord are to receive the full amount of such
award as' their respective interests may appear. Tenant hereby expressly waives any right or
claim to any part thereof and aasigns to Landlord any such right or claim to which Tenant might
become entitled.
SECTION 17.05. Tenant's Damalles.
Although all damag.s in the event of any condemnation are to belong to the Landlord and
any mortgagee of Landlord as aforesaid, wheth.r such damages are award.d .s full comp.nsation
for diminution in value of the le....hold or to the fee of the leased premiaes, Tenant shall have the
right to the extent that same shall not diminish the Landlord's or such mortgagee's award to
claim and recover from the condemning authority, but not from Landlord or such mortpgee,
such compenaa.tion as I1UlY be ...parately awarded or recoverable by Tenant under the Eminent
Domain Code in Tenant's own right for or on account of, and limited $OleiYto. any cost to which
Tenant might be put in removing Tenant's merchandise, furniture, fixtures, and equipment.
ARTICLE XVlll
BAKKRUPTCY OR INSOLVEI'ICY
SECTION 18.01. BankruDtcv or InsolvencY.
(a) J( at any time prior to the date herein fixed B.5 the commencement or the term of
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this Lealie or at any time thereafter there shall be filed by or againat Tenant in any co"rt
pursuant to any statute either of the United States or- of any state, a petition in insolvency, or if
Tenant makes an aaaignmcnt for the benefit of creditors or if there is an assignment by operation
of law, or if Tenant makes appliCation to Tenant's creditors to settle or compound or extend the
time fOJ: payment of Tenant's obligation, or if any execution or attachment shall be levied upon
any of the Tenant's properlY or the demilled premises are taken Or occupied or attempted to be
taken or occupied by someone other than the Tenant, then this Lealie shall at the Landlord's
option be cancelled and terminated and, in which event. n~ther Tenant nor any peraon claiming
through or under Tenant or by virtue of any statute or of an order of any court shall be entitled to
poesession of the demised premises. .
(hI If at any time prior to the date herein fIXed as the commencement of the term of
this Lealie or at any time thereafter there shall be flied by or against Tenant in any court of the
United States a petition in bankruptcy or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant'. 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; (i) upon the filing of
a petition by or "Iain,t Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor in
poaaeaaion, and any trustee who may be appointed, agree to perform each and every obligation of
Tenant under this Lease until such time as this Lease is 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 ss reasonable compensation for use and occupancy of the Premises an amount equal to all
Annual Minimum Rent and Additional Rent; and to reject or assume this Lease within sixty (60)
d~ of the tiling of such petition under the Bankruptcy Code; and to give Landlord at least forty-
five (451 days prior written notice of any proceeding relating to any assumption of this Lease; and
to give at least thirty (30) days prior written notice of any abandonment of the Premlaes; any such
abandonment to be deemed a rejection of this Lease; and to do all other things of benefit to
Landlord otherwise required under the Bankruptcy Code; and to be deemed to have rejected this
Lease in the event of the failure to comply with any of the above; and to have conllented to the
entry of an order by an appropriate United States B'ankruptcy Court providing all of the above,
waiving notice and hearing of the entry of same; (iil no default of this Lease by Tenllllt, either
prior to or subsequent to the filing of such a petition, shall be deemed to have been waived unleas
expreasly done 80 in writing by Landlord; (iii) it is understood and agreed that this is a Lease of
real property in a shopping center and of nonresidential real property as such a lease is described
or referred to in the Bankruptcy Code; (iv) included within and in addition to any other condition.
or obligations imposed upon Tenant or its successor in the event of sssumption and/or
assignment are the cure of any monetary defaults and the reimbursement of pecuniary loss
within not more than thirty (30) days of sssumption and/or assignment; and the deposit of an
additional sum equal to three (3) months' Rent; and the use of the Premises as llet forth in the
Indenture of this Lease and the quality and/or lines Of merchandille of any goods or services
required to be offered for sale are unchanged; and the reorganized debtor or assignee of such
debtor in posaell8ion or of Tenant's trustee demonstrates in writing that it haa sufficient
background including, but not limited to, substantial retailing experience in shopping centers of
comparable size and fmancia1 ability to operate a retail establishment aut of this Lease; and the
Premises, at aU times, remains a single store and no physical changea or any kind may be made
to the Premises unless in compliance with the applicable provisions of this Lease.
ARTICLE XIX
BVUT8 OF DEFAULT; LAlfDLORD'S R1tU1I!nlBl
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, Tenanfs proportionate share of Operating Costa, the Utility
Charge, Promotion Charge, additional rent or otherwisel when due and such default shall
continue for a period of more than ten (10) days after the date said pl\YIIlent is due,
(b) Except as to acts, defaults, omissions and/or occurrences characterized., defined,
denoted, or identified in this Lease as Deliberate Events of Default, if Tenant defaulta in fulfilling
any of the other covenants of this Lease on Tenant's part to be performed hereunder and such
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defaulf shall continue for the period within which performance is required to be made by specific
provision of this Lease, or, if no such period is provided, fifteen (15) days after the date of written
notice from Landlord to Tenant specifying the nature of said default, or, if the default so specified
shall be of such a nature that the same cannot be reasonably cured or remedied within said
fifteen (l5) day period, if Tenant shall 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. .
Ic)' If any execution or attachment shall be issued "llSinst Tenant or any of Tenant's
property and shaIl not be discharged or vacated within ten (10) days after the issuance thereof.
Id) Any event detlCribed in Section 18.01.
(e) If Tenant shaIl abandon the demised premises or if the demised premises shall be
permitted to become vacant, or shall fail to keep the demised premises continuously and
uninterruptedly open for busine....
SECTION 19.02. Deliberate Events of Default.
(a) Notwithstanding anything to the contrary set forth in this Lease, if Tenant shall
default (I) in the timely p&yment 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 Gross SlIles or any of them, and any such default sbe.lI 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, onU68ion or occurrence characterized, defmed, denoted, or
identified elsewhere in this Lease as a Deliberate Event of Default shalllllao 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 Tenont an opportunity to cure the default ('l'enant hereby specificaIIy
waiving any right of tender) may exercise any or 1Il1 of its 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 of anyone or more of such Event of Default or Deliberate
Events of Default, if the term shllll not have commenced, Landlord msy immediately cancel this
Lease by written notice to Tenant, or if the term shllll have commenced Landlord may serve upon
Tenant a written notice that this Lease and. the term will terminate 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, Tcnant shall have no right to avoid the cancellation or termination by payment of any sum
due or by other perfonnance of 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 definitely lixed 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
contrary, Te.nant shllll remain liable as set forth hereinafter. Notwithstanding Landlord's election
to terminate this Lease, Landlord may, at ita option, reinstate this ~ase 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 sufficient to reinstate this Lease upon all of its
terms and conditions. without any other notice to or from either party to the other.
SECTION 19.04. Ri2ht 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 she.lI have been given and this Lease she.lI be
terminated; or if the demised premises become vacant or deserted; then, in all or any of such
events, in addition to, and not in lieu of, all other remedies of Landlord, Landlord may without
notice terminate all services (including, but not limited to. the furnishing of utilities) and/or rc.
enter the demised premisee, either by force or otherwise, and/or by summary proceedings or
otherwise dispossess Tenant and the legal representative of Tenant or other occupant of the
demised premises, and remove their effects and reposse~>and enjoy the demised premises,
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. together with all alterations, additions and improvements, aU without being liable to prosecution
or damages therefor.
SECTION 19.05. Additional Remedies of Landlord.
(a) In the event of any Event of Default, Delib.rate J;:vent of Default, r.-entry,
termination and/or dispossession by oummary proeeedings or otherwise, in addition to, and not
in lieu of, all oth.r remedies which Landlord has und.r this Lease, at law or in equity: (I) the
Fixed Minimum Rent ahall become due thereupon and be paid up to the time of such re-entry,
di.po....aion and/or expiration; and (2)Landlord me,y, in its sol. diacr.tion, rel.t the demised
premises or any part or part8 thereof, either in the name of Landlord or otherwise~ for a term
which may at Landlord's option be leas than or exceed the period which would otherwise have
constituted the balance of the term of this Lease, and may grant concessions or Cree' rent;
provided, however, Landlord is expresaly under no obligation to relet the. demised premises; and
'(3) Tenant or the legal representative of T.nant ahall alao pay Landlord, 'at Landlord's option and
whether or not Landlord baa terminated or cancelled thia Lease, lOa liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein contained, for each
month of the period which would otherwise have constituted the balance of the term, the cxcesa,
if any, of the sum of one monthly installment of Fixed Minimum Rent, one,twetfth (1/12th) of the
annual average Percentage &nt. payable hereunder for the three (3) lease yearll immediately
preceding (or for the entire preceding portion of the term of this Lease if leaa than three (3) lease
yearsl, the monthly portion of the payment of Tax Rent that would have been payable for the
period in queation but for .uch 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'a current proportionate ahare of Operating Costs, the Promotion Charge computed on a
monthly basis over the net amount, if any, of the rents actually coUected on account of the lease
or leases of the demised premises for auch month. The refusal or failure of Landlord to r.let. the
demised premises or any part or parts thereof ahall not release or affect Tenanfs liability for
damages. In compu ling auch liquidated damagea there ahall be added to the said deficiency .uch
expenses as Landlord may incur in connection with reletting, such as court costs. attorneys' fees
and disbursements, brokerage and management fees and commissions, cost of pulling and
keeping the demised premises in good order and coste of preparing the demised premises for
reletting as hereinafter provided. Any such liquidated damages .hall be paid in monthly
in.tallments by Tenant on the day specified in thia Lease for the payment of Fixed Minimum Rent
and any action brought to collect the amount of deficiency for any month ahall not prejudice in
any way either the rights of Landlord to collect the deficiency for any subsequent month by a
similar proceeding; provided only that such liquidated damages ahall be reduced by the amount,
if any, of monthly liquidated damages collected by Landlord minus the aetual coat (including
attorneys' feea and co.ts) of collecting such monthly liquidated damages. Landlord, at Landlord's
option, may make such alterations, repairs, replacements and/or decorations in the demised
premise. as Landlord in Landlord's sole judgment considers advisable and necesaary for the
purpose of relelling the demised premises; and the making of such alterations and/ or decoration.
shall not operate or be constrUed to release Tenant from liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to relet the demised
premises, or, in the event that the demised premises arc relet, for failure to collect the rent
thereof under such reletting.
(hI In any of the circumstances mentioned in the foregoing Section 19.05(10) in which
Landlord shall have the right to hold Tenant liable as therein provided, Landlord shall have the
election, in place and instead of holding Tenant ao 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 attorneys' feea.
(c) In the event of a breach or threatened breach by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of'injunetion and the right to invoke any
remedy allowed at law or in equity as if re-entry. 8ummaIy proceedings and other remedies were
not herein provided for. Mention in this Lease of any particular remedy ahall not preclude
Landlord from any other remedies under this Lease, or now or hereafter existing at law or in
equity or by atatute.
(d) Tenant hereby expresaly waives the service of notice o(intention to re-enter or to
. 30
D:IL...1IL.... Oodi..IMn. Fldd"-TCBY (CCM).doeIMn. Flol.....TCBY (CCM)
institute legal proceedings to that end and any and all righta of redemption granted by or under
any present or future laws in the event of Tenant being evicted 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 conditions of this Lea.se or otherwise. The words lire-enter.' .
and "re-entry" as ~sed in this Lease are not restricted to their technical legal meaning.
SECTION 19.06. Confe8.;m::l of Jud""",nt.
ta) Upon the OCCUJTCnce of any Event of Default, or in the event of a Deliberate Event.
of Default as dermed herein, Tenant hereby empowers any ProthonotaIy or any attorney of any
court of record within the United States or elsewhere to appear (or Tenant with declaration filed,
and confe.. judgment in favor of Landlord, its succe~ or assigns, as of any term, for any
determined amount to which Landlord would be entitled as damages under the provisions of
Article XIX hereof including also an attorney's fee for collection of t!>e same of five percent (5%) of
the total amount of such damagea, together with costs of suit, and Tenant hereby waives all
errors, defects and imperfection. in entering l!laid judgment or in any writ, or process, or
proceeding thereon or thereto or in <tny wise touching or concerning the same; and for the
confe..ion and entry of such judgment, this Lease or a' true and correct copy thereof shall be
sullieient wal11ll1t and authoril;y. The authoril;y and power contained herein shall not be
exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time
and B.8often as there is an occurrence of any Event of Default. or in the event of a Deliberate
Event of Default as dermed 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.
Ib) When this Lease shall be terminated or cancelled by reason of the breach o( any
provision hereof, either during the original term of this Lease or any renewal thereof, and also 88
soon as the term hereby created or any renewal thereof shall have expired, it shall be lawful for
any attorney aa attorney for Tenant to file an agreement for entering in any court of compe~nt
jurisdiction an amicable action and confession of judgment in ejectment against Tenant and all
persons claiming under Tenant for the recovery by Landlord of pos..88ion of the demised
premises, for which this Lease or a true and correct copy thereof shall be his sufficient warrant,
whereupon. if Landlord 80 desires, a writ of possession may issue forthwith, without any prior
writ or proceedings whatsoever, 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 shall have the right upon any subsequent default or defaults, or upon the
termination or cancellation of this Lease as hereinbefore set forthJ 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:
(I) 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 benefit of all laws now made or which ~ hereafter be made
regarding any limitation as to the goods upon which, or the time within which, diatress 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 provision that all.goods of Tenant,
whether upon the demised premises or not, sha11 be liable to distress for rent.
(3) The right to issue a writ of replevin for the recovery of any goods seized
under a distress for rent or levy upon an execution for rent. damages or otherwise.
(4) The right to delay execution on any real estate that may be levied uponlo
coUect any amount which may become due under the terms and conditions of this Lease and any
right t!>.have the same appraised, and Tenant authorizes any ProthonotaIy or clerk to enter a writ
o( execution or other proccsa upon Tenant's voluntary waiver and further agrees that said real
estate may be sold On a writ of execution or other process.
(5) 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 distraineet 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 requ~ed under certain circumstances by The Pennsylvania. Landlord and Tenant Act
31
D'IUg.IIL.... BodIesIM.... Field',.. TCBY (CCM).dO<iMra. Fteld,-TCBY (CCM)
of 1951, as amended, hereby agreeing that any notice time period as required in this Lease
Agreement shall be sufficient in either or any such case. Landlord and T.nant agree that this
S.ction (6) shall only be applicable i! the demised premises is situate in Pennsylvania,
lb) The partie_hereby waive trial by jury in any action, proceeding or counterclaim
brought by either party again.t the other on anJl matter whatsoever arising out of, or in .ny way
connected with, this Lease, the r.lationship of Landlord and Tenant created hereby, Tenant's use
or occupancy of the Demised Premises, and/or any claim for injuIy or darna&e. In the event
Landlord commenc.s any action or proceeding for nonpayment of Minimum Rent or any item of
additional rent due h.reunder, Tenant shaD not interpose any countercIaim of any lUlture or
description in any such action or proceeding. The foregoing, however, shall not be construed as a
waiver of Tenant's right to as.ert .uch claim in a separate action or proceeding in.tituted by
Tenant.
ARTICLE XX
IIIIICBI.LAlUOU8
SEC'J10N20.01. AccessbvLandlord.
Landlord may at all re880nable limes during the term of this Leas. enter to in.pect the
demised premi.es and/or may show the demised premise. and building to others. At any titne
within one (II year immediately preceding the .xpiration of the term of thi. Lea.e, Landlord shall
have the right to di.play on the Oltterior of the demised premisell (but not so as to unreasonably
ob.truct the view thereof or acce.. thereto) the customary "For Rent" sign and during such period
Landlord may .how the premise. and all part. thereof to prospective tenants between the hours
of 9:00 A.M. and 9:00 P.M. on any day. Landlord also reserve. the right after notice of intention
to so enter (except that in the event of an emer&enCY, no notice shall 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 nC!:essary for the safety, improvement or preservation thereof, or of the building in
which the demised premise. is contained, but Landlord a..ume. no Obligation to do so, and the
performance thereof by Landlord ahall not con.titute a waiver of Tenant'. default in failing to
perform the same. Landlord shall in no event be liable for any inconvenience, disturbances, 10..
of bu.iness or other damagt: to Tenant by reason of the performance by La.ndlord of any work in,
upon, above or under the demised premises. If Tenant .hall have vacated or deserted the
demised premise. or, in the event of an emerg.ncy. or if in any other in.tance after Landlord has
given notice of Landlord'. intention to enter, Tenant or Tenant's employees shall not be persone.Jly
present to permit an entry into the demised premises. then, in any such event, Landlord or its
agents or employ.e. may enter the same by the use of force or otherwise without rendering
Landlord liable therefor, and without in any manner affecting Tenant'. obligation. under this
Lease. The exercise of any such reserved right by Landlord shall not be deemed an eviction or
di.turbance of Tenant's use and po_sion of the premises and .hall not render Landlord liable
in any manner to Tenant or to any other per.on, nor shall the same con.titute any grounds for an
abatement of any rent hereunder.
SEC'J10N 20.02. HoldinR Over.
Should Tenant hold over in po.....ion of the d.mised premi.es after the expiration of
the term hereof without the execution of a new lease agreement or extension or renewal
agreement, Tenant, at the option of Landlord, shall be deem.d to be occupying the demised
premise. from month to month, subject to such occupancy being terminated by .ither party upon
at least thirty (30) day.'. written notice, at the rental, including, but not limited to, Fixed
Minimum Rent comput.d at a rate which ia double the Fixed Minimum Rent rate in .ff.ct 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 a
month to month tenancy.
SECTION 20.03, Succesoors.
All ,.;g!,ts, obligations and liabilitie. h.rein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several. respective heirs. executors, administrators,
32
D.Il4Il11L.... BodleJlMrs. FI.ld'.. TCD\' (CCM).d_. F1.ld..TCB\, (CCM,
trustees, receivers, legal representatives, 8uc<:::e880rs and as8igt'!~ of the said parties; and, if there
shall be more ihan one tenant, they shall all be bound jointly and severally by the terms,
covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee,
legal representative, trustee, receiver, legatee or other peraonal representative of Tenant unless
the assignment to such part;y has been approved by Landlord in writing as provided in Section
14.01(a) hereof. Any reference to any department store herein shall apply to its successors,
replacements or assigns.
SEc'rlON 20.04. OUiet Eniovment.
So long as Tenant shall pay the rents herein provided within the respective times
provided therefor, and provided and so long as Tenant observes and performs all the covenants,
term and conditions on Tenanh part to be observed and performed, Tenant shall peaceably and
quietly hold and enjoy the demised premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or peraons lawfully claiming by, through or under
Landlord, subject, neverthelesa, to the terms and conditions of this Lease. Landlord's liability
under this Section shall cease upon a conveyance by Landlord of the premises.
SECTION 20.05. ~.
The waiver by Landlord. of any breach of any term, covenantor 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 aU other monetaJy obligations of Tenant hereunder, whether or
not .denoted as rent hereunder, shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to make
the particular payment 80 accepted, regardless of Landlord's knowledge of such preceding breach
at the time of acceptance of such rent. No covenant, term or condition of this Lease shall be
deemed 10 have been waived by Landlord, unless such waiver be in writing and executed by
Landlord.
SECTION 20.06. Custom and Usa...,.
Any law, uaage or custom to the contrary notwithstanding, Landlord shall have the right
at all times to enforee 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 times with respect to the Tenant hereunder or with respect to other
tenants of the Shopping Center. The failure of Landlord at any time or times to enforce its rights
under said covenants and provisions strictly in accordance with the same shall nol be construed
as having created a custom in any way or manner contrary to the specific tenns, provisions and
covenants of this Lease or ss 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 leaacr amount than any paymenl of
rent or additional rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent or additional rent then due and payable, nor shall any endoraement or.
stlltement on any check or any letter accompanying any check or payment as rent be deemed an
accord and aatisfaction, and'Landlord may accept such check or payment without prejudice 10
Landlord'. right to recover the balance of such rent or pursue any other remedy provided in this
Lease, at law or in equity.
SECTION 20.08. Performance of Tenant'. Covenants.
Tenant' covenants and agrees that it will perform all agreements and observe all
covenants herein elCpressed on its part to be performed and observed and that it will promptly,
upon receipt ot written notice speciJYing action desired by Landlord in connection with any such
agreement or covenant, comply with such notice; and further, lhat if Tenant shall not comply
with any such notice to the satisfaction of Landlord prior to the date on which such
noncompliance would cQI1stitute an Event of Default, in addition to, and not in lieu of or in
limitation of any other remedy which Landlord. may have pursuant to this Lease. at law or in
equity, Landlord may, but shall nol be obligaled 10, enter upon the premises and do the things
specified in said notice. Landlord shall have no liability to Tenant for any loss or damage
resulting in any way from such action and Tenant agrees to pay upon demand. ~s a.dditional Tent,
33
D:\LepJ\Le... _..1M... Field'.-TCBY (CCM).doclMn, Field.. TCBY tCCM)
any ""pense incUrred by Landlord in taking such action. Notwithstanwng the foregoing,
Landlord', performance of any or all of Tenant's covenants ~ not release Tenant from liability
for non-performance.
SECTION 20.09. Entire A=ment.
The Indenture oj Lease, the Lease Agreement, the Exhibits and Rider, if any, set forth all
the covenants. promises, agreements, conditions and understandings between Laildlord and
Tenant concerning the demised premises QIld there are no covenants. promises, agreements,
conditions or understandings, either oral Or written, between them other than as herein set forth.
All prior communications, negotiatio~. arrangements, representations, agreements and
understandings, whether oral, written or both, betwf:en the parties hereto, and their
representatives, are merF<' herein and extinguished, this Lease superseding and canceling the
same. Except as herein otherwise provided, no sub&equent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and
executed by the party against which such subsequent alterations, lUIlendment, change or
modification is to be enforccd. If any provision contained in any rider bereto is inconsistent with
any printed provisions of thia Lease, the provision contained in such rider shall supersede said
printed provision. Tenant hereby acknowledges that: (a) this Lease contains no restrictive
covenants or exclusives in favor of Tenant; (b) this Lease shall not be deemed or interpreted to
contain, by implication or otherwitse, any warranty, representation or agreement on the part of
Landlord that any department store or regional or national chain store or any other merchant
shaU open for business or occupy or continue to occupy any premises in or adjoining the
Shopping Center during the tenn of this Lease or any part thereof and Tenant hereby expressly
waives all claim with respect thereto and acknowledges that Tenant is not relying on any such
warranty) repn:sentation or agreement by Landlord either u 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 Partnershin.
Landlord does not, in any way or for any purpose, become a partner of Tenant in the .
conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with
Tenant. The provisions of this Lease relating to the Percentage Rent payable hereunder are
included solely for the purpose of providing a method whereby adequate rent is to be measured
and ascertained.
SECTION 20.11. ~.
All payments of rent and any and all other monetary obligations of Tenant accruing
hereunder, whether or not denoted as rent, shall be paid to Landlord or its agent at the address
set forth in the Indenture of Lease, until Tenant is notified otherwise in writing, and all notices
given to Landlord hereunder shall be in writing and forwarded to it at such address, postage
prepaid, by registered Or certified mail, return receipt requested, or prepaid by any nationallY
recognized expre68 or overnight mail delivery service which provides proof of receipt. All notices
to Tenant shall be forwarded to it at the address set forth in the Indenture of Lease, until
Landlord is notified otherwise in writing, by postage prepaid, registered or certified mall, 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 alfldavit of the penon making such delivery shall be conclusive proof oj the delivery
and of 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 Statea Government to operate and deliver the mail, deposited with the
express or overnight mail service as aforesa;d or, in the case of notices delivered in person to
Tenant, when 80 delivered. Noticcs by the Landlord may be given on its behalf by Agent or by any
attorney for Landlord or Agent,
SECTION 20.12. Cautions and Index.
The captions and index appearing in this Lease are inserted only as a matter of
convenience and in no way defmc, limit, construe or describe the scope or intent of such sections
or articles of this Lease nor in any way affect this Lease.
34
O,ILq.IILw< BodlCll\ln. Field's- TCBY (CCM).dotlMn. Fields- TCBY (CCM)
SECTION 20.13, Tenant Defined: Use of Pronoun.
The word '1'enant" shall be deemed and taken to mean each and every person or party
mentioned as a Tenant herein, be the same one or more; and, if there shaU be more then one
Tenant. any notice required or permitted by the term of this Lease may be given by or to anyone
thereof, and shall have the same force and effect as if given by or to aU thereof. The use of the
neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even
though Laridlord or Tenant may be all' individual, a partnership, 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 plural number where there is more than one Landlord or
Tenant and to either corporation.. asaociations, partnerships or individuals. males or females,
shall in aU instances be assumed as though in each case fully expre88ed.
SECTION 20.14. 'Neurion of Personal Uabilitv.
Notwithstanding anything contained herein to the <:onlI'ary, Tenant agrees thst Landlord
shall have no penoonaJ liability with respect to any of the provisiOlUl of this Lease- and Tenant
shan look solely to the estate and property of Landlord in the land and buildings comprising the
Shopping Center or which the demised premises forms a part for the satisfaction of Tenant's
remedies, including, without limitation, the collection of any judl!ll1ent or the enforcement of any
'other judicial process'requiring the payment or expenditure of money by Landlord in the event of
any default or breach by Landlord with respect to any of the terms and provisions of this Lease to
be observed and/or performed by Landlord, subject, however, to the prior righta of any holder of
any Mortgage covering all or part of the Shopping Center, and no other asseta of Landlord.or any
principal of Landlord shall be subjc<:t to levy, execution or other judicial proceSS for the
satisfaction of Tenant's claim and, in the event Tenant obtains a judl!ll1ent against Landlord, the
judgment docket shall be SO noted. Thia 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 Cenler of which the Premises forms a part. In the event of a aale or
transfer of such interest (except a Mortgage or other transfer as security for a debt), the
"Landlord" initial1y named herein, or in the case of a subse<l\!ent lI'ansfer, the transferor, as of the
date of such transfer, shall be automatically released from aU liability Cor the performance or
observance of any term, condition, covenant or ob1igation required to be performed or observed by
Landlord hereunder; and the transferee shall be deemed to have assumed all of such terms,
conditions, covenants and obligations except as to pre-existing defaulla by Landlord. The
covenanta 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 a Landlord
hereunder. The n8ll1e and designation Crown American Realty Trust is the n8ll1e of the Trust
and the <:ollective designation of the Trustees from time to time under the Declaration of Trust
amended and. restated a. of August 6,1993, and.a may be further amended and/or restated, and
- all persons dealing with the Crown American Realty Trust must look solely to the Shopping
Center for the enforcement of any claims against Crown American Really Trust, as neither the
Trusteea, officers, agenta or shareholders of the Crown American Realty Trust asaume any
personal liability for obligations entered into by the Crown American Realty Trust by reason of
their status as said Trustee, officer, aaent or shareholder.
SECTION 20.15. Effect of Governmental Limitation on Renta and Other Cha"'es.
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 o(her
charges payahle by Tenant to any amount less than that otherwise provided pursuant to this
Lease, the following amounts shall nevertheless be payable by Tenant: (al throughout such period
of limitation, Tenant shall remain liable for the maximum amount of rent and other charges
which are legally payable.{without regard to any limitation to the amount thereoC expressed in
this Lease except that all amounta payable by reason of this Section 20.15 shall not in the
aggregate exceed the total of all amounts which would otherwise be payable by Tenant pursuant
to the terms of this Lease for the period of limitation), (b) at the termination oC such period of
limitation, Tenant shall pay to Landlord, on demand but only to the !'Xtent legally collectible by
Landlord, any amounts which would have been due from the Tenant during the period of
limitation but which were not paid because of such limiting law, decision, rule or regulation, and
, 35
D:\....al\Le...1Iod1..IMrs. Fleld'.-TeRY (CCM~docJMrL Field.. TCBt' (eCM)
(c) for the remaining term of this Lease foUowing the period of limitation, Tenant shall pay to
Landlord an amounts due for such portion of the term of this Lease in accordance with the terms
hereof calculated as though there had been no intervening period of linritation.
SECTION 20.16. Pe.rtiallnvaliditv: Secarate Covenants.
I! any term, covenant or 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 such term, covenant or condition to peraans or circumstances other than those
as to which it is held invalid or unenforceable shall not be affected thereby and eaJ:h term,
covenant and condition of this Lease shan be valid and be enforced to the fullest extent permitted
by law. Furthermore, each covenant, agreement, obligation and other provision contained in this
Lease is, and shall be deemed and construed as, a separate and Independent covenant of the
party bound by, undertaking or making the same, and not dependent on any other provision of
this Lease unless expressly 80 provid.ed.
SECTION 20. 17. Recordinll.
Tenant shsll not record this Lesse 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. Brokera"" CammiSBion.
Landlord and Tenant each warrant to the other that neither has been represented by any
Broker with regard to this Lease A&reement. Further, Landlord and Tenant each agree to
indemnify and hold harmleSB the other should 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 hereto that if any tenn, covenant, condition oragrecment of
this Lease is capable of two or more constructions, one or more of which would render the
provision void, and the other or others of which would render the provision valid, then the
provision shall have the meaning or meanings which would render it valid.
SECTION 20.20. Pe"",tuitv.
It the term of this Lease shall not have commenced within three (31 years of the date
hereof, then this Lease automatically shall become null and void and both Landlord and Tenant
shaU 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 is 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 exiating herein, if any, shall not be interpreted against any party, but
shall be interpreted according to the application of the rules of interpretation for ann's !engt.1J
agreements.
SECTION 20.23. Tntf',.UfWlllIHnn,
Whenever in this Lesse any printed portion has been stricken out, whether or not any relative
provision has been added. this Leaae shall be construed sa if the mahorial so s_ was never included
herein 8Dd no inference shall be drawn from the materisI eo stricken oUt-which would be inCDnmtent in any
way with the construction or interpretation which wou14 be appropriate if such material were never contained
herm,.
SECnON 20.24. SUbmi-.;"'u of Lea&e to Tenant
TIlE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHAlL HAVE NO BINDING FORCE
OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR TIlE LEASING OF TIlE DEMISED PREMISES, NOR
CONFER ANY RIGH'I'S OR IMPOSE ANY OBUGATIONS uPON EITHER PARTY UNTIL THE EXECUTION
TIlEREOF BY LANDLORD AND THE' DEUVERY OF AN EXECUTED ORIGINAL COPY TIlEREOF TO TENANT
OR ITS REPRESENTAnvE.
36
O,ILepNAo.. 80111..\1'1... Fldd'..TCBY (CCM).dO<iMn. Fleldo-TCBY (Celli)
Revlllo.o Dak; M.rdJ 20, 1997
CAPITAl. CITY MALL
. CAMP BILL. PE9YLVANIA
EXHIBIT "A"
Food Court Retail Kiosk - As-Is
LAlmLORD IIEUBY ACKKOWLltDGB8 OIl 1'BIlAn AG_ THAT 1'BIlAIIT 18 A POoD CoURT
1'BIlAlfT.
I. Bach oC the CoIlowfD& warD or .x,...,.... 11&.... Cor tla. pllrpoeee oC tho S.ction an4 Cor .th.
purpOM oC We to.... the -.....me ..t l'onh:
A. "Food Court" means thst certain portion or those certain portions of the Shopping Center
conaisting of the Food Court Seating Area and the Rentable Area of the Food Court as shown
on Exhibit "B" attached to each of the leases for Food Court Tenants.
B. "Food Court Retail' means all those tenants 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, from time to time by Landlord, to be leased to Food Court Tenants and which
portion or portions arc: part of the common areas and are shown on Exhibit -B- attached to
each of the lea""" 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 tenants of" similar nature, the costs of
maintaining and operating the Food Court Seating area in the manner set forth in this Section
and who comprise Food Court Retail.
E. "Rentable Area of the Food Court' means the Gross Leasable Area of all areas within the Food
Court leased to Food Court Tenants.
F. "Fa.' C..1t ,.HI., AI.. Q..." ..... t..... ... ... ..,..... "..,'1" .. . rl.\1lt .1
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... ell
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....... tII_ .........".. .'......Ilr...-" It. ".___,t. UN" I"". 18r ill. ......... 71M\
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2. 981 "'.11' II ta. .... g.... ......~I ANa ~. .far u.. 1.'.". Y-tM aaltilpU.. ~ .
......~ ... .........., at wIrd.1l III till 13.,. 1......11 _\Ra al u.. D......
PHaI..... ... till. ....-..--,.. If .wa"" ,It. RlaUllle Ar.. .t till F.~. e.m.
H. Ja Ute ...., ".---t .... .,t ...-... . retia" al Gr... l.a.. .. . 11..., ..... ..
.....IM. .. ~... R .f tIl. 1.... ~.,........ "....t, \1r... laI.. .... ...,.... at
-w'-.......-. ~.---,.. ra.' <g.ut .........._,. ....... .L_".. ...... t. ..--.. ,......
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~7 ,.... c.1IJ't IhW T.---y fer tIl. ,...... J....
n. The followlDc provlslolls. ... addltloll to the other provlalou of this Lea... shall apply to
Food COurt T_..ta.
A. III ..... 1.,... ~"r Ta_a, _L." ,.,. tie 1..III,r. "h'1I..t:~ Fe.. e.1iR ...,.......t.
...... ,'''a ...t ge. ...... Ar.. ~._, ... ad4llUea ,.~. PIn.. ...._J....IltI., ...
Mi..... ..... rep..... .. .. ,... ._----t Ie ......~.. 1...... .d."Jr~.. wit...t ..J&a.....
\Ill C..... ~\r.. ~......
B. Ta...'. ria' c..1Fl "a,a.u.'FM' .... .. '1' 8l1t .. ,&,,,.1- .......... II ....M..... eaIT
al ... ~.. c.... T.':"--u ..~ liar tl. ,...... ., till.., ...... ..... h.. "Iut.
'f...... .. .. 1II. ... t.---,. .. tIla .IM..... ~a_.r ...,.-~.. I.. tll. ,.,..'M .f
Fa.. C... '.at.. Aft. 0.".
C. Notwithstanding the foregoing, Landlord has the right from time 10 time 10 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 adjacenl 10 the Food Court and, in such event, the provisions of this
Paragraph shall apply. .
D. The Tenant shall reimburse the Landlord ilS pro rata share of the capital costs and will
.ubecquently reimburse the Landlord for the maintenance and upkeep expenoe 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 reserves the
right to formulate,determine and enfo"", such merchandising policies, $tandards and
practices for the Food Court as Landlord determines neceSSSJy or advisable in the best
interest of the overall operation of 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.... a whole, and the Tenant agrees to be bound by and to comply with .uch
policies, standards and practices.
D:\LepIILea..lIGd_ Fltldoo TCBy.a;M-Ilx A.doc
Pqe 2
Without limiting the generality of the foregoing, Tenant, at all times during the Lease Term, in
the operation of it. business in the Food Court, will abide by all rule. and regulation. and
directions of Landlord relating 10 (e) the health and oanitary conditions of the Demised
Prenlises, the Food Court and employee. of Tenant in the Food Court; (b) standards and
quality of merchandise and merchandising as determined by Landlord; (c) cuslomer relations
and resolution .of complaints or Customers; {d~ such other matters as Landlord determines
from the time 10 time .with respect 10 the operanon of the Food Court. All of Tenant's
personnel working at ita sales counter(s} shall be similarly attired in uniforms of Tenant's
choice. Such uniforma shall be kept in a neat and clean condition at all times and their
design shall be in keeping with the fIrSt-class, high quality image oC the Shopping Center.
TIle _...t. ,aJHI. II, 1'-1..., ,""Ia' ,. 'lIfi I..".. ...,. _. ..~at.. ., 1"-",,.
fer ...Il...... _ ...._jk,. ..h..Ia.. tM...... ..,t..,.. """--wi ...... t. ~ ,.
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...... 1__ _1". 1M .. .L~_ h.... ............ .at II *11., --.-..... :f.... .. will_ ._ll
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t.... F.... c.... .......-. tria Q..... ,...tIlar wltla . ......, If 'M T'--lIt'. ....
CeJUt ...,......... ..... .1..... ...,....".11....1-11".,.. .Qa.'..IIl......w. ,. ....
11...... tII. ,...1.. .. 'II. ----., ".r.I-.&~.. 1M I...Ia. IITI-'"'v..M ,aI. III ..... .f
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..,...... .1 T,---t'. ..... C.... ..at... ..v.. 1.1'. II tll, ..... ".._. Me ,"II it
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tile But .__",..t, ..,.... II ..... ...-.-.. ..... If...,.. L.... y.... ....... tile 1....
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TIM.'. :r... ~.1IIt: PI'JIRI..at. .... .L.n 'I eullj.at '- . ,... ...., 'N ata
aaQa_l_..t.
Ill. A. Tenant has inspected the premises and agrees 10 accept the p,,!,mises in an 'as is' condition.
Except as provided in the foregoing Lease Agreement, Landlord shall not be required to
expend any amount oC money or do any other act which might be required to make the
demised premises 8uitable for the use permitted in the Lease Agreement.
8. Tenant covenants that the maximum size of the kiosk design and construction doe$ not
exceed the dimensions shown on Page I oC this Lease and has a maximum counter height of
forty-two (42') so to allow see. through capacity to other points in the mall.
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 flOOT in any manner other than set .on the man floor.
D. Tenant shall observe and maintain a high quality, proCessional signing policy within its
demised premjses. No Dashing, moving or large signs will be used. Kiosk signage must
confonn 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 insta1lation.
Any signls) erected in violation of criteria or without approval of design or installation Crom the
Landlord, shaUgive the Landlord the right to remove such sign(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. Mandawry Construction/Remodeling Requirements:
If the kiosk is new OT bas not been remodeled or replaced within the last five (5) years, the
following requirements will apply. lC the kiosk is existing and has been remodeled within the
past five (5) years, remodeling requirements will be enforced at Landlord's option.
1. MinimaJ kiosk construction/remodeling requirement8 would include all new materials,
casework, fmishes and signage.
MLcpMa.. ....ios\M<& F1t1d..TCBY-CCM-Ex A.doc
P_3
2. AD electrical work shall comply with the latest National Code (N.E.C.l, and sJI Federal,
S18.te and Local Codes. Landlord does not permit:
Exposed li&ht source (concesled cabinetry lighting penniasible).
Romex or BX wiring - AD wiring must be in conduit.
3. The Tenant's kiosk design, drawinll8, specifications and construction must comply with
all the Landlord requirementB presented within the Tenant Design and Construction
Criteria Handbook. Tenant, Tenant's agents, Tenant's architect and/or engineer, and
Tenant's conlT8ctora(sl and/or subcontractor(s) are l'ellponsible to comply with all
Landlord requirements and specifications.
4. Tenant shsJI be requ~ to attain all neceseszy approvsls and pennits from state and
local governing authorities including a fmal inapection and a Certificate of Occupancy
as required. Tenant shall also comply with any requirements of the American'a with
Disa.bilities Act (A.D.A.) aa applicable and .. mandated by local and state authorities.
G. Tenant's Plans and Specifications:
I. Complete professionally prepared working drawings and specifications shall be
submitted for review and/or approval by Landlord within thirt;y (30) days after the
Landlord provides the Tenant with a criteria package for the demised space.
Drawings and specifications shall be prepared and arranged in three (3) categories:
Architectural, Mechanical and Electrical. Each group shall be dearly designated.
Plans shall be drawn at 1/4" scale or larger, on a s18.ndsrd paper size no larger
than 30" it 42" throughout.
2. During all phases of plan development and prior to bidding or commencing of
construction, the tenant shaJl make a physical on site inspection of the demised
space and verify condltionsJ dimen8ions, etc. of the demised. space. Failure to do so
shall be at the risk and sole expense of Tenant.
3. Landlord's plan review and/or approval is for compliance with Landlord's criteria
only, and this approval does not relieve Tenant of responsibility for compliance with
local, state and federal codes, and regulatory agencies governing this area.
'nll rll ........... Ie, ....... IMIew -~. ..,rrrval .,. ~ --lIlal. II '100.00 .... .
1Ue..... Y.. will .. L7 _t... .pa. .,prlw1 .f pIa_. \II It.. Me ,..,ale ta
L....... ,".r t. ....... 7.. Kia I"
H. Tenant's Construction:
J. Notwithstanding anything to the contrlU)' contained in this lease sueeIIlent, the
execution hereof is expressly made subject to and contingent 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 sanfe.
In no event shall the Tenant conunence work or deliver/install anything within the
mall until formal approval i. given by the Landlord.
2. Upon approval by the Landlord of the tenant's plans and specifications, the tenant
i. 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 order to open for business in accordance with the terms of this Lease.
D:IL....IL.... _aIM" Flddo-TCBY-CCM-b A.dot:
~4
3. Tenant shall notify the Landlord a minimum of one (1) week prior to moving onto
the job to commence constrUction. Tenant must also check in with the mall
manager (or general construction superviBOT if I5lill on the project) and present
him/her with a set of approved plans along with the building permit numl>er (where
applicable).
4. All work must l>e performeq by bona fide licensed contractor(s) and conform with
all applicable laws, rulea,. regulations, speclf1cations, cod... and standards
established by regulatory agencies or the Landlord.
5. Landlord, in its sole discretion, and for any reason, shall have the right to order
tenant to terminate any conatruction work being performed by or on behalf of tenant
in the demised premis.... Upon notification from Landlord to Tenant to cease IlJlY
such work, Tenant shall forthwith remove from the demised premises aD qents,
employees and contractors of the tenant's perfonning such work until such time as
Landlord shaU have given its consent for the resumptions of such conatruction
work and tenant shall have no claim fOT damage of any natu.r.e whatsoever a.gainst
Landlord in connection therewith.
6. TenllJlt shall be responsible for making neceaaary arrangements, to include costs,
fot 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 Tenant's store construction shaD be corrected
and made acceptable to the Landlord, at the Tenant's sole responsibility and cost.
Tenant's faDure to correct violations within fifteen (15) days of notice of same to the
tenant shall, at Landlord's option, result in correction of same by Landlord or its
agent related costs will be blUed to the Tenant as additional rent under the terms
and conditions of the lease.
8. Upon completion of conlftruction, tenant or its agent or its contractor will obtain
final inspection of the demised apace by the building authorities and deliver a copy
of the CertifICate of Occupancy to the Landlord prior to opening.
lV. Compliance:
A. The Tenant's store design, drawings. specifications and construction must comply with
. all the Landlord requirements presented within the Tenant Design & Construction
Criteria Handbook. Tenant, Tenant's agents, Tenant's architect and/or engineer. snd
Tenant's contractor{s) and/or subcontractor(s) are responaible to comply with all
Landlord requirements or specifications.
B. Tenant shan be required to attain aD nece"""'Y approvals, permits, and certifications'
from state and local governing authorities including a fmal inspection and a Certificate
of Occupancy, as required. Tenant shall 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 and/or its architect and/or contractor{s) and/or
subcontractor(s) shall not specify, furnish, install or use any materials containing any
hazardous or carcinogenic producing materials in the completion of Tenant's. work. Ten
(lO)working days after completion of Tenant's work, tenant's architect .haD deliver to
Landlord a certification that none of the materials used in the completion of tenant's work
, conte..iris hazardous/or carcinogenic producing materials.
O:lLepllLtosellGdl..\l\lrs Fl......TCBy.(;CM-[> A.doc
..... 5
.
D. Waiver of_Liens:
1. Tenant agrees to enter into Waiver of Liens Agreements or Waiver of Rights to me
Lien contract with any of its contractors~ subcontractor., materialmen, or other
persons furnishing services, labor or material. concerning, in any way, work to be
completed in part. or while, in connection with Tenant's work and provide Landlord
with copy{ies) of same-
2. Any mechanic's lien filed against the demised premises or the shopping center for
work claime<! to have been done or for materials claimed to have been furnished to
tenant lShaU be diBcharged within twenty (201 days after filing, by bonding or as
provided or required by law or in any other lawful manner. Tenant's failure to
comply with this (Paragraph N, 0, I and 21 shall be deemed an Event of Default,
E. After Tenant opena for business, Landlord will be responsible for removing Tenant'.
garbage, "",cluding grease trap reaidue, from the demised space to a compactor and/or
holding bin(sl. Tenant shaU contact mall man&il"mentollice prior to openinll for
business to make all necessary imangementa for garbage removal. Tenant is
responsible to separate dry garbail" from wet garbage and suitably bag and/or
containerize same as directed by the Landlord. A charge for garbage removal will be
levied on the Tenant based on a fixed fee, subject to periodic escalation, comparable to
existing local rate..
F. On... Trap Clu.1liDC and llalnteaaace: Tenant .hall instail 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 fuU term of the lease
agreement a service contract with a reputable licensed'disposal company for collection
and disposal of all grease for the demised space. A copy of the agreement must be
delivered to the Landlord prior to Tenant opening (or business. Landiord reserves the
right to in.peet the grease trap to insure that it is being properly cleaned and maintained
and, if not, Landlord will have llBIIle cleaned and maintained at Tenant's cost.
D:\Lcpl\lau _... Ji1""~TCBV-ccM.IJr A.doc
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CROWN AMERICAN
. LEASE PLAN
CAlPIT AL CITY MALL
i&
.
.
EXHIBIT .C.
UTILITY SCHEDULE
RATE.
1. Utility Services shall be furnished to individual tenants as 'needed. Tenant agrees to use and pay fur utility
service supplied by Landlord and additional reat under the Lease on a monlbly basis. Landlord may estimate sueh periodic
billings and confmn and/or adjll$l same on a less frequent basis. C~s for utility service shall be in.lICCOrdaDce with
Tenant's use category IS if Tenant WC'" serviced directly by the local public utility or municipal authority!ben supplying
utility service to the Shopping Center (the "tariff") and any supplements thereto or any tarift's issued to supencde said tariff,
which may hereafter be filed, and Tenant shall also pay any taxes, surcllarges, impositions, penalties or other additional
charges applicable to lite utility service used by it which are not included in the aforesaid I'llIe and tarift; provided that such
taxes, surcharges, impositions or other charges are required by law to be collected from Tenant or are paid by Landlord to
its supplier of utility seMlice.
2. In the event dtat !be I'llIe which would be charged by a public utility for equivalent amounts of service becomes
insufficient to compensate Landlord for !be reasonable costs for supplying utilities to Tenant, then Landlord sball be
entitled to charge Tenant an amount equal to ihe actua1 cost of supplying lite utility service together willt DI1 amount not to
exceed fifteen percent (15%) of utility bill.
3. In no event shall Landlord be liable for the quality, quantity, failure or interruption of any utility service to the
demised premises.
1. The T ...-..II81d may, at it& eplisa, iBfitaU III ERertf.' ManagDRleat Sratem te efHsillltly 88R58FW utilMy YS&ge.
TeABftt agrees 18 pay a IBBlltWy aharge ef ISO.OO as 'TeRIRt's shift af the 8n1lWY M---gellMftf '~.!J.1I1 p1ilVhass,
iR5taJlmefit, --' "11Im.. and UJ'8fH' reef&. TJDIIBt shall FemK tHis sheJ:g., whish '\\iU he .a.,..,.}' ideRufilll iR tits
~rigiRal in?loiee, 88 put eftlll TIfltU1t's Feglllar mendlJy utility payml8t.
ELECTRICAL SERVICE.
Electric energy supplied hereunder by Landlord shall be nominally sixty-cyc1e, unregulated altemllling current, in
the form 00 phases, 4 wires, and a voltage designated by Landlord. Installation of Tenant's electrical liu:i1itics 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 cllarge 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 its property from Tenant's
premises whenever bills for utilities are in arrears beyond the grace period set forth in the Lease, or in case Tenant fails to
comply with or perform any of the tenns, conditions or obligations or violates any of the covenants seHorth in the Lease
beyond the grace period set forth in the Lease.
APPLlCA nON FOR UTILITY SERVICE.
Tenant shall make application for utility service to Landlord, iDaccordance with rules and regulations set forth in
Landlord's Utility booklet, where such service is supplied by Landlord.
D\LcpJ\Mm;ilS\IcpI flldo&hlblu'bhibit c\TCBY (CCM).dex:
2- 3-05;11: 10AM;CAPITAL CITY MALL
;717 737 0607
STATEMENT
Date.
Account-
Statement No.
Pag~-
Make Check
Payable To:
PR CAPITAL CITY LIMITED PARTNERSHIP
PO BOX 644052
pJITSBURGH PA 15264-4052
From~ CAPITAL CITY MAll.
3506 CAPITAL CITY MALL DR
CAMP HILL PA 17011-7003
To:
CooklesPlu5,lnc.
1104 Fernwood Avenue
Suite 304
Camp Hi" FA 17011
Tenant: Mrs. FleldsrrCBY
FOR INQUIRIES CALL: Mary Lee Parley TEL: 717-737-8275 cx FAX; n7~737...oB07
Amount Remltted:
RemIt top portion with payment.
DETAIL CHARGE
Capital City Mall Mrs. FieldsITCBY L.... 0000561'-
In\lOlceDate Descrlption Charges Payments Balance Check Number
1/112003 Balance Forward 455.69
1013112003 Real Escate Tax Year End Adjsl (183.68) (183.66)
1/112004 CPllncrease Marketing Dues .7. .7'
1{1/2004 CPllncrease TertantAdl.'. Fund .>7 .37
1/1/2004 CPllncrease Marketing Dues .7' .7'
1/1/20M Cpt Incn3i1Se TElnant Adll. Fund .37 .37
21112004 MarketlnQ Fund .7' .7'
2/112004 Media Fund Advertislng .37 .37
31112004 Marketing Fund .7' .7'
311/2004 Media Fund ~ing .37 .37
4/112004 MINIMUM RENT 3,456.33 3,458.33
4/112004 CAM ESCROW 125,00 125.00
4/1/2004 REAL ESTATE TAXES 43.12 43.12
4/1/2004 Marketing FUfld 41.67 41,67
4/1/2004 ADVERTISING 20~3 20.83
4/1/2004 Security 20.83 20.83
41112004 Marketing Fund .7' .7'
411/2004 Media FUnd Aa'VEN'tlsing .37 .37
5/1/2004 MINIMUM RENT 3.458.33 3.45tl,33
5/112004 CAMESCROW 125.00 125.00
5/112004 REAL ESTATE TAXES 43.12 43,12
51112004 Marketine: Fund 41.67 41.67
51112004 ADVERTISING 20.83 20.83
5/1/2004 Secunty 20.83 20.83
5/1/2004 Marl<etlr'$ Fund .7' .7'
51112004 Media Fund AdVert/SIf1g .37 .37
6/112004 MINIMUM RENT 3,458.33 3,458.33
6/1/2004 CAM ESCROW 125.00 125.00
6/112004 REAL ESTATE TAXES 43.12 43.12
611/2004 MarkefrngFund 41.67 41.67
6/1J2004 ADVERTISING 20.63 20.83
611J2004 Seourity 20.83 20.63
6/1/2004 Marketing Fund .7' .7'
6/1/2004 Media Fund AdvGrt/6fng .37 .37
71112004 Marketing Fund .7' .7'
711/2004 Media Fund AcMmlslng .37 .37
Exhibit 2
# 2/ 6
213/2005
737786
126254
1
3-05;11: 10AM;CAPITA~ CITY MALL
;717 737 0607
STATEMENT 0.... 2I3J2005
Account. 737786
Statement No- 126254
Page- 2
Capital City Mall Mrs. FleldsFTCBY Le... 0000581...
Invoice Date Descriplion Charges Paymants ..,.",. Cheek Number
1/112003 Balance FOlW8rd .00
711812004 CAM EXCESS 2003 2.96 2.96
7/18/2004 CAM INTERIM 1/1/04-7/31/04 1.75 1.75
811f20()4. CAM ESCROW 125.25 125.25
CaplfaJCJtyM.1JJ Mrs, ReldsFTCBY Lease 000056104-
Invoice Date Desoriptlon Cha",es Payments Biilance Check. Numw
1J1/20D3 Balance Forward .00
81112004 MINIMUM RENT 3,456.33 3,458.33
81112004- REAL ESTATE TAXES 43.12 43.12
B/1/2004 MaJ'1(eting Fund 41.67 41.67
8l1J2004 ADVERTISING 20.83 2.0.83
Bl1f2004 Seourity 20.83 20.83
81112004 Marketing Fund .7' .7'
BJ1/2004 Media Fund AdVertising :37 .37
9/112004 MINJMUM RENT 3,458.33 3,458.33
9/112004 REAL ESTATE TAXES 43.12 43.12
9/1/2004 Marketing Fund 41.67 41.67
9/1/2004 ADVERTISING 20.63 20.83
9/1f2004 Security 20.83 20.83
9/1/2004 Marketing Fund .7' .7'
911/2D()4. Media Fund Advertising .37 :37
9/112004 CAM ESCnOW 125.25 12525
1/)/112004 MINIMUM RENT 3,458.33 3,458.33
10/1/2004 REAL ESTATE TAXES 43.12 43.12
1OJ112004 Markelln9 Fund 41.67 41.67
10/112004 ADVERTISING 20.83 20.83
1M.I2004 SecurIty 20.83 20.83
10/1/2004 Marketing Fund .7' .7'
10/112004 Media Fund Advertising .37 :37
101112004 CAMESCROW 125.25 12525
101412004 8ecmc 507.63 (508.63) (1.00) 1470
10/2912004 State Tax 22.19 (21,19) 1.00 1490
11/'12004 MJNIMUM RENT 806.94 806.94
11/112004 MINIMUM RENT 2,779.17 2,779.17
111112004 REAL ESTATE TAXES 43.12 43.12
11/112004 Marketing Fund 41.67 41.67
111112004 ADVERTISING 20.83 20.83
111112004 Security 20.83 20.83
111112004 Marke6~Fund .7' .74
1111/2004 Media Fund Advertising .37 .37
11/1J2004 CAM ESCROW 125.25 125.25
121112004 CAM ESCROW 125.25 (82.13) 43.12 1608
1Z13J2004 State Tax 21.28 (2028) 1.00 1507
1/1/2005 CAM ESCROW 125.25 (82.13) 43.12 1525
11412D05 Slate Tax 24.85 (23.85) 1.00 1533
Capltllll City Mall Mrs. FleldsITCBY Lease 000056104-
InvofceDate OesaiptJcm Charges Payments Balance Check Number
1/112003 Balance Forward .00
1NOl2005 ADVERTISING 1.50 1.50
1/1012005 Marketing Fund 3.00 3.00
1/27/2005 Retro CPI AdJ 2/1-2128/05 .75 .75
112112005 Retro CPI Ad] 211-2128105 1.50 1.50
Capital City Mall M..... FfeldsITCSY Lease 00005614
Invoice Dale Description Charges Payments Balance Check Number
1/1/2003 Balance Forward .00
"
8
3/
2- 3-05; 11 ;,OAM;CAPITAL CITY MALL
113112005
1/3112005
211/2005
21112005
21112005
21112005
21112005
2/112005
21112005
211/2005
Electric
State Tax
MINIMUM RENT
REAL ESTATE TAXES
Marketing Fund
ADVERTISING
Security
Marketing Fund
Media Fund AdvertisIng
CAM ESCROW
STATEMENT
385.78
23.15
3,625.00
43.12
41.67
20.83
20.83
.74
.37
125.25
;717 737 0607
Date-
Account -
Statement No ~
Page ~
385.78
23.15
3,625.00
43.12
41.67
20.83
20.83
.74
.37
125.25
# 4/ 6
2131200s
73n86
126254
3
ACCOUNT SUMMARY
ACCOUNT AGING
Current
1.30
4,294.49
Balance Prior To
Plus Charges From
less Payments I Credits From
31-60
43.12
61-90
44_12
11112003
11112003
1/1/2003
AMOUNT DUE:
455.69
31,051.53
(73821)
30.769.01
91-120
3,839.92
Over 120
22,547.36
\I
2- 3-05;11 :10AM;CAPITAL CITY MALL
;717 737 0607
# " / 6
CAPITALCITVMALL
@
3506 Capital City Mall Drive, Camp Hill, PA 17011
To:
Shelia Fineberg Miller, Marcus & Shapira
Fax:
412.391.8758
Teiephone:
412.338.5226
Date:
February 3, 2005
John N. Walters, SCSM, SCMD
General Manager
From:
Fax:
(717) 737" 8275
(717) 737-0607
Telephone:
E-mail:
waltersi@.oreit.com
Pages including cover sheet: 6
For Review rgJ For Approval 0 For Comment 0
Notes: Shelia,
Included are the most recent AR summary sheets for Cookies Plus, Inc. as well as Casa Man!
Caffe, Inc. In the meantime I will await copies of the ietters sent to the tenants. Thank you.
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