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06-2584
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON Ua THE KOFEE GRINDER, CIVIL DIVISION No. T - 1 Defendants 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 11/1/05 through 4/1/06 Attorneys' fees for enforcement and collection (5%) provided under § 19.06 of the Lease Filing Fee TOTAL Dated: Maya 2006 $ 11,553.93 $ 577.70 $ 19.50 $ 12,151.13 J-T?: `? ties.. Attorney for Defend IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, CIVIL DIVISION No. -'gy (2tL) LL`Ts/?, COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY Defendants. Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Raeann Traficante PA ID No. 85515 MARCUS & SHAPIRA, LLP Firm No. 145 One Oxford Centre, 356 Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. ©t, - aIU-tL(-7k C V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, Defendants. COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited partnership, with an address of c/o 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. Defendants, David Robinson and Linda Robinson are adult individuals t/a The Kofee Grinder. Defendants' last known address is 606 Cee Jay Drive, Etters, PA 17319. The original instrument evidencing the obligation on which judgment is herein confessed, or a photostatic copy or like reproduction showing the signatures of Defendants 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 May 26, 1993, as amended by Amendment of Lease dated March 10, 1998, (the "Lease") between Crown American Capital City Associates, L.P. and Defendants. Defendants are the Tenant under the Lease, and as noted above, Plaintiff is the Landlord and the successor in interest to Crown American Capital City Associates, L.P. under the Lease. This confession for 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 transaction. 5. 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. 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 September of 2005 through February, 2006. Plaintiff gave written notice of the failure to pay on, among other dates, March 22, 2006, 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 1111105 through 4/1/06 (Ex. 2) $ 11,553.93 Attorneys' fees for enforcement and collection (5%) $ 577.70 provided under § 19.06 of the Lease Filing Fee $ 19.50 TOTAL $ 12,151.13 WHEREFORE, Plaintiff as authorized by the warrant of attorney contained in the Lease demands a money judgment against Defendant in the total sum of $ 12,151.13 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: May 3 , 2006?0'? Stephen S. Zubrow Raeann Traficante MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership "INDENTURE OF LEASE" THIS INDENTURE OF LEASE, made on the jU day of 91993, by CROWN AMERICAN CORPORATION, a Pennsylvania corporation with its offices located at Pas erilla Plaza, Johnstown, Pennsylvania 15907 (hereinafter called "Landlord"), and DAVID ROBINSON AND LINDA ROBINSON, Husband and Wife, trading as THE KOFEE GRINDER, with an address at 37 Second Street, York Haven, Pennsylvania 17370, (hereinafter called "Tenant"), WITNESSETH: A. Leased Premises. Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the store premises "leased one then referred as the "B":hereto, now erected remises" or part of an red shopping center to be initially known as Capital City Mall, 3506 Capital Mall Drive, Camp Hill, PA, (hereinafter referred to as the "Center" "Shopping Center" or "entire premises" and initially comprising the area shown in Exhibit "B"S, the demised premises being measured and described by the following dimensions which are measured from the outside building lines of each wall 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: (Room #638) Front; Thirty-One Feet (319 Depth: Seventeen Feet (17') - Total Area: Five Hundred Fifty-Eight (558) Square Feet together with the right to the non-exclusive use in common with others entitled to use same of all such automobile parking areas, driveways, walls, 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 prescribed from time to time by the Landlord. B. Term. The tern of this Lease shall be for a period of ---five-- 5 years beginning on the "commencement date" as established by Section 1.01(a o e ease; provided, however, Tenant's fixed minimum rental and other charges will commence on the earlier to occur of: (a) the date upon which the Tenant opens its premises for business; or (b) July 1, 1993, whether Tenant is open for business or not. C. Fixed Minimum Rent. Tenant shall pay to Landlord a guaranteed annual minimum rent ("Fixed Minimum Rent") as followss The Fixed Minimum Rent for each of the following periods during the term of this Lease shall be: Time Period Annual Amount Monthly Amount * Years 1 - 5 $20,000.00 $1,666.67 "No Fixed Minimum Rent shall be due for the first (1st) month of the term of this Lease (the "Abatement Month"); provided, however, Tenant shall pay all items of Additional Rent for the Abate- ment Month under this Lease. The entire Fixed Minimum Rent otherwise due and payable for the Abatement Month shall become immediately due and payable upon the occurrence of an event of default by Tenant under this Lease. Each such installment shall be due and payable on or before the first 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 an 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 shall be a day other then 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). Exhibit A D. Percentage Rent. In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accordance with Section 2.01 of the Lease tt shall pay to Landlord, as additional rent hereunder (hereinafter referred to as "Percentage 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 six percent ( 6% ) 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 Gross Sales Base for the following periods within each lease year shall be: Time Period Years 1 - 5 Percentage Rent Gross Sales Base $333,333.00 E. Use of Premises. Subject to the provisions of Article V of the Lease, Tenant shall use the leased premises solely for-the purpose of conducting the business of3 the retail sale of ground gourmet coffees, coffee beans gourmet teas and spices, expresso, cappuchino, related gourmet foods, accessories end gift baskets. F. Common Area Payment. 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 Coats (as defined in Article VII of the Lease) an amount never Isms than one- twelfth (1/12th) of the sum obtained by multiplying the square feet of floor area of the demised pre- mises by the sum of --------------Five Dollars---------- If the commencement date hereof shall not be the first day of a calendar month, Tenant's payment of its proportionate share of Operating Costs for the fractional month between the commencement date and the first day of the first full calendar month in the term shall be prorated on a per diem basis (calculated on a thirty (30) day month) and shall be paid together with the first payment of Fixed Minimum Rent. G. Tenant's Allowance. The Landlord shall reimburse the Tenant on account of the cost of construction of the items designated as Tenant's Work in Exhibit "A" attached hereto the maximum allowance of $1,666.67, subject to the terms and conditions set forth in said Exhibit. In lieu of Landlord's payment of said Tenant's Allowance, Tenant's Fixed Minimum Rent shall abate for the first (let) month of the term of this Lease in accordance with Paragraph C., Fixed Minimum Rent, of the Indenture of Lease. In no event shall Tenant be entitled to any rent aba sapnt-T=c s not open for business on or before July 1, 1993. H. Security Deposit. -- NOT APPLICABLE 1. Tax Rent. As an initial estimated payment on account of Tenant's proportionate share of taxes as defined 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 sum obtained by multiplying the floor area of the demised premises by the sum of --$1.19--. J. Merchant's Association/Advertising. Tenant covenants and agrees to become a member of any Merchant's Association formed by the tenants of the Shopping Center and 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 association the sum of ---75F--- per year for each square foot of floor area contained in the demised premises, subject to CPI adjustment, as provided in Article XV of the Lease. Tenant shall also pay to Landlord as its contribution to the Advertising Program for the Shopping Center the sum of ---75F--- per year for each square foot of floor area contained in the demised pre- mises. Tenant's Advertising Program payment and Merchant's Association payment shall be made in monthly inatallmenta, together with payment of Fixed Minimum Rent, and Raid Advertising Program payment shall be subject to CPI adjustment in the same manner as Tenant's Merchant's Association payment as provided in Article XV of the Lease. - 2 - K. 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 as though set forth at length in the Lease: Rider, if any, Exhibit "A", Exhibit "0", and Exhibit "C". IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Lease to be duly executed the day and year first above written. (Corporate Seal) ATTEST: X ane usinac Secretary WITNESS: 4ma e? CROWN AMERICAN CORPORATION By Atn? ra _azorc ac Ex utive Vice President - A et Management DAVID ROBINSON AND LINDA ROBINSON, D/B/A THE GOW" GRINDER ,(SEAL) avid Wobineon WITNESS: ?0?7 (SEAL) nda o inson - 3 - INDEX TO LEASE AGREEMENT ARTICLE I TERM Page Section 1.01 Commencement of the Term .................................................. 1 ARTICLE II RENT Section 2.01 Percentage Rent ........................................................... 1 Section 2.02 Gross Sales Defined ....................................................... 2 Section 2.03 Percentage Rent Statements and Payments ................................... 2 Section 2.04 Taxes ..................................................................... 3 Section 2.05 Additional Rent ........................................................... 4 ARTICLE III ROOKS OF ACCOUNT AND AUDIT Section 3.01 Tenant's Records .......................................................... 5 Section 3.02 Audit ..................................................................... 5 ARTICLE IV CONSTRICTION OF LEASED PREMISES Section 4.G1 Construction by Landlord .................................................. 5 Section 4.02 Tenant's Improvements and Fixtures ........................................ 5 Section 4.03 Financing ................................................................. 6 Section 4.04 Excuse of Performance ..................................................... 6 ARTICLE V CONOWT OF BUSINESS Section 5.01 Use of Premises ........................................................... 6 Section 5.02 Storage ................................................................... 7 Section 5.03 Additional Use of the Premises ............................................ 7 Section 5.04 Rules and Regulations ..................................................... 8 ARTICLE VI GRANT OF CONCESSIONS Section 6.01 Conditions to Grant ....................................................... B ARTICLE VII COMMON AREAS Section 7.01 Definition; Control ....................................................... 9 Section 7.02 Parking Facilities ........................................................ 9 Section 7.03 Roof, Walls, Changes and Additions to Center .............................. 9 Section 7.04 Right to Relocate ......................................................... 10 Section 7.05 Expanses .................................................................. 30 Section 7.06 Common Area Payment ....................................................... 10 Section 7.07 Proportionate Cost of Security ............................................ 11 ARTICLE VIII SIGNS; AWNINGS; CANOPIES; FIXTURES= ALTERATIONS Section 8.01 Signs, Awnings and Canopies ............................................... 12 Section 8.02 Property in Dmised Premises .............................................. 12 Section 8.03 Improvements and Alterations .............................................. 12 ARTICLE IX MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES Section 9.01 Repairs and Maintenance by Tenant ......................................... 13 Section 9.02 Structural Repairs ........................................................ 13 Section 9.03 Surrender of Premises ..................................................... 14 ARTICLE X INDEMNIFICATION; SUBROGATION Section 10.01 Indemnification and Waiver of claim ....................................... 14 ARTICLE XI INSURANCE Section 11.01 Insurance ................................................................. 15 Section 1142 Insurance Provisions ...................................................... 15 Section 11.03 Effect on Insurance ....................................................... 15 ARTICLE XII UTILITIES Section 12.01 Utilities ................................................................. 16 Section 12.02 Application for Utilities ................................................. 16 Section 12.03 Operation of Heating and Air-Conditioning ................................. 16 Section 12.04 Utility Charge Defined .................................................... 16 ARTICLE XIII ESTOPPEL CERTIFICATE; SUBORDINATION= ATTORNMENT Section 13.01 Execution of Estoppel Certificate ......................................... 16 Section 13.02 Failure to Execute Estoppel Certificate ................................... 17 Section 13.03 Subordination and Attornment .............................................. 17 ARTICLE XIV ASSIGNMENT AND SUBLETTING Section 14.01 Assignment and Subletting ................................... _....... 17 Section 14.02 Application to Assign or Sublet ........................................... 18 Section 14.03 Copy of Assignment or Sublease ............................................ is ARTICLE XV MERCHANTS' ASSOCIATION; PROMOTION f1NDi ADVERTISING Section 15.01 Merchants' Association, Promotion Fund and Advertising .................... 19 ARTICLE XVI DESTRUCTION OF LEASED PREMISES Section 16.01 Total or Partial Destruction .............................................. 20 Section 16.02 Partial Destruction of Shopping Center .................................... 20 ARTICLE XVII EMINENT DOMAIN Section 17.01 Total Condemnation ........................................................ 21 Section 17.02 Partial Condemnation ...................................................... 21 Section 17.03 Partial Condemnation of Shopping Center ................................... 21 Section 17.04 Landlord's Damages ........................................................ 21 Section 17.05 Tenant's Damages .......................................................... 21 ARTICLE XVIII BANKRUPTCY OR INSOLVENCY Section 18.01 Bankruptcy or Insolvency .................................................. 22 ARTICLE XIX EVENTS OF DEFAULT; LANDLORD'S REMEDIES Section 19.01 Events of Default ......................................................... 22 Section 19.02 Deliberate Events of Default .............................................. 23 Section 19.03 Termination ............................................................... 23 Section 19.04 Right of Possession ....................................................... 23 Section 19.05 Additional Remedies of Landlord ........................................... 23 Section 19.06 Confession of Judgment .................................................... 24 Section 19.07 Waivers ................................................................... 25 ARTICLE XX MISCELLANEOUS Section 20.01 Access by Landlord ........................................................ 25 Section 20.02 Holding Over .............................................................. 25 Section 20.03 Successors ................................................................ 26 Section 20.04 Quiet Enjoyment ........................................................... 26 Section 20.05 Waiver .................................................................... 26 Section 20.06 Custom and Usage .......................................................... 26 Section 20.07 Accord and Satisfaction ................................................... 26 Section 20.08 Performance of Tenant's Covenants ......................................... 26 Section 20.09 Entire Agreement .......................................................... 27 Section 20.10 No Partnership ............................................................ 27 Section 20.11 Notices ................................................................... 27 Section 20.12 Captions and Index ........................................................ 27 Section 20.13 Tenant Defined; Use of Pronoun ............................................ 27 Section 20.14 Negation of Personal Liability ............................................ 27 Section 20.15 Effect of Governmental Limitation on Rents and Other Charges .............. 28 Section 20.16 Partial Invalidity; Separate Covenants .................................... 28 Section 20.17 Recording ................................................................. 28 Section 20.18 Brokerage Commission ...................................................... 28 Section 20.19 Construction .............................................................. 26 Section 20.20 Perpetuity ................................................................ 28 Section 20.21 Choice of Law ............................................................. 28 Section 20.22 Joint Preparation ......................................................... 28 Section 20.23 Interlinestion ............................................................ 28 Section 20.24 Submission of Lease to Tenant ....................... :..................... 29 LEASE AGREEMENT ARTICLE I TERN SECTION 1.01. Commencing of the Term. (a) Ina - eigine, term" this Lease (hereafter defined) and Tenant's obligation to pay rent and occupy the demised presises in accordance with the terms hereof shall commence an the earlier of the following dates (such earlier date being heroin called the "commencementdate"): (1) an the date set forth inSection "8" of the Indenture of Lana or (2) thedate an which Tenant shall first open the demised premises for business. (b) At any time after the commencement date of the term of the Lease the parties shall execute and deliver to each other, at the option of Landlord, either an instrument in recordable form or a letter agreement prepared by Landlord, wherein Tenant shall: (1) certify that the Lease is in full force and effect and (2) certify the commencement and termination dates of the original term of this Lease. (c) This Lease and the tenancy hereby created shall cases and determine at the end of the term hereof without the necessity of any notice from either Landlord or Tenant to terminate the now, and Tenant hereby waives notice to vacate the promises and agrees that Landlord shell be entitled to the benefit of all provisions of low respecting the summary recovery of posasulon of premises from a tenant holding over to the same extent as if statutory notice had been given. (d) The period commencing an the date hereof and. terminating on the date immediately prior to the commencement date is hereby referred to as the "initial term", and the period from the commencement data to the date of the expiration or earlier termination of this Leans shall be referred to herein as the "original term". For the purposes of this Lease the words "the term of this Lease" and "term hereof" hall be deemed to mean the initial term and the original term of this Lease and all exteneians or renewals thereof. ARTICLE II RENT SECTION 2.01. Percents _ Rant. (a) The rercan a?g Rent shall be payable without prior demand and without any setoff or deduction whatsoever at the time met forth hereinafter at the place than fixed for the payment of Fixed Minimum Rent. (b) Not later than thirty (30) days after the expiration of the first "lease year" (hereinafter defined) of the term hereof and, unless Landlord exercises its option an eat forth in the next sentence hereof, thereafter not later than thirty (30) days after the expiration of each subsequent lease year in the term hereof, Tenant shall pay to Landlord the Percentage Rent due for the lease year in question. In the event that Percentage Rent shall be payable 'for any lease year in the term hereof, after the expiration of the first lease year containing twelve (12) complete calendar months, Landlord, at Landlord's option to be exercised by written notice to Tenant, may require Tenant to pay, as additional rent, together with each monthly installment of Fixed Minimum Bent due hereunder commencing with the first such payment due immediately after the reasipt by Tenant of such notice an amount equal to one-twelfth (1/12th) of eighty percent (80%) of the Percentage Bent payable for the immediately preceding lease year. Thereafter, Tenant shall continue to pay such estimated payments of Percentage Rent together with each monthly installment of Fixed Minimum Rent due for each calendar month in the tarn hereof= provided, however, that the amount of such estimated monthly payments of Percentage Rent may, at Landlord's option, be adjusted at the expiration of each subsequent lean year after receipt by Landlord of Tenant's statement referred to in Section 2.03(b) to an amount equal to one-twelfth (1/12th) of eighty percent (80%) of the Percentage Rent payable for the leas year immediately preceding such adjustment and commencing with the payment of Fixed Minimum Rent due immediately after receipt by Tenant of notice of such adjustment. Tenant shall continue to pay such adjusted amount until the next adjustment. Although estimated Percentage Rent shall be payable monthly as aforesaid, the final computation and payment shall be on an annual basis. - (c) Whenever used in this Lease the words "lease year" shall mean the twelve (12) full calendar months of the term commencing with the first day of the term of this Lease, provided the commencement of the term of this Lease is an the first day of the month or, if the term of this Lease commences on any day other than the first day of the month, then with the first day of the month immediately following the commencement date and each succeeding twelve (12) month period. In the event that the first or last lease year shall consist of lose then twelve (12) full calendar months, the Percentage Rent Gross Sales Base for such shorter lease year shall be deemed to be that portion of such Sales Base obtained by multiplying the applicable Percentage Rent Gross Sales Bum set forth in the Indenture of Lease 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 -1- event the amount of the Percentage Rent Gross Sales Base set forth herein is subject to adjustments during the term of this Lease, and the date an which such adjustment is to occur (hereinafter referred to as the "Rental Adjustment Date") is other than the first day of a lease year, the Percentage Rent Gross Sales Base for the lease year in which the Rental Adjustment Date shall fall shall be the sum ofs (a) the lesser Percentage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by e fraction, the numerator of which shall be the number of days in the period commencing an the first day of the lease year in which the Rental Adjustment Date shall fall and ending an the day immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty-five (365), plus (b) the greater Percentage Rent Grose Sales Base set forth in the Indenture of Lease multiplied by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending an the last day of the lease year in which the Rental Adjustment Date shall fall and the denominator of which shall be three hundred sixty-five (365). (d) It is expressly understood and agreed that Landlord does not consider the Fixed Minimum Rent in itself a fair and adequate rental for the demised premises and would not have entered into this Lease unless Tenant had obligated itself to pay Percentage Rent which Landlord expects to supplement the Fixed Minimum Rent to provide such fair and adequate rental return. Therefore, if, in each of at least two (2) of the first three (3) full lease years in the term hereof, Tenant shall not have been obligated to pay Percentage Rent in the mount as set in the Indenture of Lease, Landlord may, at its option, (1) terminate this Leme upon written notice to Tenant given at any time within six (6) months after the receipt by Landlord of Tenant's annual ststment of Gross Sales for such third full lease year, (or, if earlier, the due date thereof) and this Lease shall terminate and be null and void sixty (60) days after delivery of such notice; or (2) decrease the Percentage Rent Gross Sales Base set forth in Section "D" of the Indenture of Lease to an amount equal to the Gross Sales reported by Tenant at the and of the lease year immediately preceding the date an which Landlord makes the election hereunder. Tenant shall thereafter pay to Landlord Percentage Rent in excess of the decreased Percentage Rent Grose Sales Base for each lease year during the remainder of the term of this Lease (including the lease year during which the Percentage Rent Gross Sales Base has been decreased), and each lease year thereafter. SECTION 2.02. Gross Sales Defined. (a) The words roes ales" as used herein shall mean the gross mount of 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 promisee (including, but not limited to, catalogue sales made at or from the demised promises), whether for cash, credit or other consideration, with such other consideration being determined at fair market value and financing charges an all Gross Sales (without reserve or deduction for inability or failure to collect) including, but not limited to, such sales and services (1) as a result of transactions originating in, at or from the demised promises, whether delivery or performance is made from the demised prmiam or from some other place; (2) pursuant to mail, telephone, telegraph, closed TV Circuit, Dial-A-Buy and other devices, automated or otherwise, whereby orders are received at the demised promisee or (3) which Tenant or any subtenant, licensee or concessionaire in the normal course of its business would attribute to its operations at the demised premises. Gross Sales also include all deposits not refunded to purchasers. 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 shall receive payment therefor. (b) The following shall be deducted fret Gross Sales if originally included therein, or excluded therefrom, as the case may be, provided separate records are supplied supporting such deductions or exclusions, nomelyz (1) any exchange of merchandise between stores of Tenant where such exchange is made solely for the convenient operation of Tenant's business and not for the purpose of consummating a sale made in, at or from the demised promisee, (2) returns to shippers or manufacturers, (3) cash or credit refunds to customers on transactions otherwise included in Grose sales, (4) sales of fixtures, machinery and equipment after use thereof in the conduct of Tenant's business in the demised promisee, (5) amounts collected end paid out by Tenant for any sales tax imposed by any duly constituted governmental authority provided such tax is both added to the selling price as a separate and distinct mount in addition to the regular price of Tenant's merchandise and paid to the taxing authority by Tenant (but not by any vendor of Tenant), (6) the mount of any discount on sales to employees, and (7) receipts from the permitted pay telephone and vending machines referred to in Section 5.03(r). No value added tax, and no franchise -or capital stock tax and no income, gross receipts or similar tax based upon income, profits or gross receipts as such shall be deducted from Gross Sales. SECTION 2.03. Percentage Rent Statements. (a) oN later-than heeTh (30th) day after the end of each calendar month in the term hereof, Tenant shall submit to Landlord an itemized and accurate written statement signed by Tenant, its duly authorized officer or duly authorized representative, reflecting the full amount of Gross Sales made during the preceding calendar month. If the commencement date hereof shall not be the first day of a calendar month, the period between the commencement date and the first day of the first full calendar month in the term and Tenant's Gross Sales during such period shall be added to the first calendar month for both the purpose of the computation of Percentage Rent and the purpose of reporting of Gross Sales. (b) Not later than the date set forth in Section 2.01(b) hereof, Tenant shall submit to Landlord a complete written statement of Tenant's Grose Sales for the preceding lease year in such - 2 - reasonable detail as requested by Landlord, certified by Tenant, its duly authorized officer or representative, accompanied by a certified statement signed by Tenant's regularly engaged. independent public accountant stating that the Gross Sales reported by Tenant are in accord with the amount thereof set forth on Tenant's regularly maintained bode and records. Simultaneously with the delivery of the statement referred to in the preceding sentence, Tenant shall pay to Landlord the full unpaid balance of the Percentage Rent due end payable for such lease year, if any. In the event Tenant is making estimated payments of Percentage Rant and Tenant is not then in default hereunder or otherwise indebted to Landlord, any excess of estimated Percentage Rant that Tenant may have paid for such lame year over the Percentage Rant actually due for such loan year shall be refunded to Tenant within thirty (30) days; provided, if such overpayment is for the last lease yaw, 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 Lease, is not indebted to Landlord and lee vacated the demised premises in accordance with the provisions of this Lames. In the event Tenant is indebted to Landlord for any reason whatsoever, Landlord may deduct much amount owed from such overpayment. (c) The acceptance by Landlord of payments of Percentage Rent or reports thereof shell be without prejudice, and shall 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 as not forth in Section 3.01 hereof. (d) If Tenant shall fail to deliver such statement as required by Section 2.03(b), within the period not forth therein and much failure shall continue for ten (30) days after the date of written notice of such failure from Landlord, Landlord shall have the right thereafter to employ a certified public accountant to make such examination of Tenant's books and records as may be necessary to certify the amount of Tenant's Gross Sales for said lease year, the certification so made shall be binding upon Tenant and Tenant shall promptly pay to Landlord the coat of the examination, together with the full balance of Percentage Rant due and payable for said lease year. In addition, Landlord may treat the failure to deliver such stataomnts within ton (10) days after the aforesaid notice as a Deliberate Event of Default. (e) Tenant's obligations under this Section 2.03 shall survive the expiration or earlier termination of this Lease. SECTION 2.04. Taxes. (a) Tnr the purposes of this Section 2.04, the word "taxes" shall include all taxes attributable to improvements now or hereafter made to the Shopping Center or any part thereof or attributable to the present or future installation in the Shopping Canter or any part thereof of fixtures, machinery or equipment, all real estate taxes, asseasa nts, roll-back texas or amusements, water and sewer rents and other governmental impositions and charges of every kind and nature whatsoever, nonrecurring as well an recurring, special or extraordinary as well as ordinary, foreseen and unforeseen, and each and every installment thereof, which shall or may during the term of this Lease be levied, assessed or imposed, or become due and payable or become lions upon, or arise in connection with the use, occupancy or possession of, or any interest in, the Stepping Center or any part thereof, or any land, buildings or other improvements therein and all costs and fan incurred by Landlord in contesting and/or negotiating sold taxes, lose all asouhts paid as taxes to Landlord by the occupants of any "Separately Assessed Presins" (as defined in Section 2.04(d) hereof). The word "taxes" shall not include any large, such as water mater charge and aawer rant based thereon, which is measured by the consumption by the actual user of the item or service for which the charge is made. (b) For each "Tax Year" (me defined in Section 2.04(x) hereof) during the term of this Lease, Tenant shall pay to Landlord as additional rent (hereinafter called "Tax Rent"), the amount obtained by multiplying the total of all taxes payable during such Tax Year by a fraction, the numerator of which -shall be the square feat of floor area of the demised promises and the denominator of which shall be the square feet of all "leasable floor area" (m 'defined in Section 2.04(d) hereof) in the Shopping Canter computed as of each date Landlord has a right under Section 2.04(c) to bill Tenant for an installment of Tax Rent. On account of Tax Rant, Tenant shall pay marthly, in advance, as additional rant, together with each monthly installsant of Fixed Minimum Rant, without demand or setoff, the mount set forth in Section "I" of the Indenture of Lean. Such moment may be adjusted by Landlord at any time during the tees hereof to an amount equal to wins-twelfth (1/12) of the Tax Rent payable by Tenant for the preceding Tax Year. If Tenant'a payment; an account of Tax Rant for any Tax Year exceeds the actual sm ont payable by Tenant as Tax Rant for with Tex Year and Tenant is not in default hereunder or otherwise indebted to Landlord, Landlord shall credit with is on to Tonant'a future tax obligational provided, if such overpsyment is for the last Tax 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 this Lease, is not indebted to Landlord and has vacated the demised promises in accordance with the provisions hereof. In the avant Tenant is indebted to Landlord for any reason whatsoever Landlord may deduct such amount owed fras such overpsyment. lc) Landlord shall have the right to bill Tenant for Tax Rant during each Tax Year after each receipt by Landlord of a bill, assessment, levy, notice of imposition or other evidence of taxes due or payable all of which are hereinafter collectively referred to as a "tax bill" (whether such bill is a final bill, an estimate of annual tans or rsprsaanta a tax bill bowed upon a final or partial assessment or determination). Tenant shall pay the balance of its Tax Pont within thirty (30) days of receipt from Landlord of a written statement setting forth the taxes for which Landlord has received a tax bill, Tenant's share of taxes, and Tenant's payments theretofore waft on account of Tax Rent. In making the computations as aforesaid, a tax bill or photocopy thereof submitted by Landlord to Tenant shall be conclusive evidence of the mount of the taxes included in the computation of the - 3 - Tax Rent in question; provided, however, Landlord shall have the right to bill Tenant for Tenant's share of the Tax Rent for the last lease year in the term hereof whether or not Landlord shall theretofore have received a tax bill covering the period from the date of the tax bill which formed the basis of the most recent installment on account of Tax Rent billed to Tenant to the expiration of the term hereof. If Landlord has not received a tax bill for such period, Landlord shall estimate the amount of such last installment of Tex Rent an the basis of information contained in the tax bill most recently received by Landlord, subject to adjustment when Landlord receives a tax bill which includes the period from the date of such tax bill to the expiration of the term hereof. Tenant shall pay such adjusted amount upon billing by Landlord. (d) For the purposes of this Lease, the words "Separately Assessed Premises" shall mean only each of the following portions of the Shopping Center which are in fact separately assessed or for which the amount of taxes actually assessed is readily ascertainable or which are used in connection with the operation of a department store or portiona of the Shopping Center which are owned, leased to or otherwise occupied by a department store or portions of the Shopping Center which are owned, leased to, or otherwise occupied by a variety or specialty store. For purposes of this Lease ¦ "variety or specialty store" is an occupant which leases or occupies 15,000 spore feet or more of building space in the Shopping Center. For the purposes of this Lease the words "leasable floor area" shall mean the square feet of floor area in enclosed buildings which are erected on portions of the Shopping Center other than Separately Assessed Premises and which are designed exclusively for use and occupancy by Tenants other then occupants of Separately Assessed Promisee and which are open for business by such tenants. (e) For the purpose of this Lease the words "Tax Year" shall mean the twelve (12) full calendar months of the term commencing with the asnuary let immediately following the commencement date and ending December 31st of such calendar year and each succeeding twelve (12) month period thereafter commencing in the term of this Lone; provided, however, the first Tax Year shall commence on the commencement date and terminate an the immediately succeeding December 31st. (f) If for reasons other than Tenant's default the term of this Lease terminates an a date other than the last day of a Tax Year, Tenant's Tax Rent shall be equitably pro-rated. Notwithstanding anything herein to the contrary, for the purpose of computing the Tax Rent due for the first Tax Year, all taxes (equitably pro-rated) payable during the calendar year in which the first Tax Year shall fall shall be deemed payable during the first Tax Year. (g) If, after Tenant shall have made the required annual payment of Tax Rent, Landlord shall 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 shall credit to Tenant that percentage of the net refund after deducting all costs and expenses (including, but not limited to, attorneys' and appraisers' fees) expanded or incurred in obtaining such refund, which the portion of the =taxes in question paid by Tenant beers to the entire amount of such taxes immediately prior to the refund. Tenant shall not institute any proceedings 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 shall 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 and/or legal proceedings challenging the tax rate, assessed value or other factors influencing the amount of taxes, whether or not such action results in a reduction in the amount of taxes, Tenant's Tax Rent shall include the portion of the aggregate of all such reasonable fees, reasonable attorneys' and appraisers' fees and all disbursements, court costs and other similar items paid or incurred by Landlord during the applicable Tax Year with respect to such proceedings which is obtained by multiplying the aggregate of such sums by the fraction set forth in Section 2.04(b) hereof. (h) If at any time during the term of this Lease, under the Iowa of any one or more jurisdictions in which the Shopping Center is located, a tax, imposition, charge, assessment, 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 taxes now levied, assessed or imposed on real estate as such, there shall be levied, assessed or imposed (1) a tax an 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 otherwise measured by or based in whole or part upon Landlord's Parcel or any portion thereof, or (4) an income or franchise tax, then the same shall be included in the computation of taxes hereunder, computed as if the amount of such tax or fee so payable ware 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, assess or impose a tax, excise and/or assessment upon or against this Lease, the execution hereof and/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 shall reimburse Landlord for the amount thereof, as the case may be. (i) Tenant's obligations under this Section 2.04 shall survive the expiration or earlier termination of the term of this Lease. (j) In the event of any dispute as to the floor area in the Shopping Center or any portion thereof (other than the leased promisee which shall be determined by the provisions of the Indenture or Lease), the determination of Landlord's architect shall be binding upon the parties. SECTION 2.05. Additional Rent. All sums of money cr charges required to be paid by Tenant under this Lease, whether or not - 4 - the sane are designated "additional rent", shall for all purposes hereunder be deemed and shall be paid by Tenant as rent. If such amounts or charges are not paid at the time provided in this Lease, they shall nevertheless, if not paid when due, be collectible as rant with the next installment of Fixed Minimum Rent thereafter falling due hereunder and shall bear interest from the due date thereof to the date of payment at the highest rate allowed by law. ARTICLE III BOOKS OF ACCOUNT AND AUDIT SECTION 3.01. Tenant's Records. (a) Tw-%`mnT--cavana- s and agrew that the business of Tenant and of any subtenant, licensee or concessionaire upon the demised promises shall be operated so that a duplicate dated "lea 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 cash sales Tenant shall utilize, or cause to be utilized, cash registers equipped with sealed continuous total or such other devices for controlling sales as Landlord shall approve. Furthermore, Tenant shall keep at all time during the term hereof, at the demised promisee or at the general office of Tenant, full, complete and accurate books of account and records in accordance with accepted accounting practices with respect to all operations of the business to be conducted in or from the demised promises including, without limitation, the recording of Gross Sales and the receipt of all merchandise into and the delivery of all merchandise from the demised promises during the term hereof and shall retain such books and records, copies of all tax reports submitted to the appropriate taxing authorities, ss well as copies of contracts, vouchers, checks, inventory record, dated cash register tapes and other documents and papers in any way relating to the operation of such business (all of which an hereinafter collectively referred to as "books and records"), for at least three (3) years from the and 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 hsreunder, until such audit or controversy is terminated even though such retention period ray 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 its duly 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 or explanation with respect to such books and records me may be necessary for a proper examination and/or audit thereof. (b) In the event Tenant violates the provisions of Section 3.01(x) 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 an amount which is not readily ascertainable and thus, in such event, Landlord, in addition to and not in lieu of any other remedies which Landlord has under this Leese, at law or in squity, shall have the right, at its option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20x) of the greater of (a) Percentage Rent reported for the period or periods in question, or (b) the annual Fixed Minimum Rent payable for the period or periods in question. SECTION 3.02. Audit. If theexamination and/or audit referred to in Section 3.01 shall disclose that Tenant has understated its Gross Sales by one percent (lx) or more for the period being examined, Tenant shall 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 of such liability as a Deliberate Event of Default. ARTICLE IV CONSTRUCTION OF LEASED PREMISES SECTION 4.01. Construction k, Landlord. Landlord,- cosTE s expense, shall construct the demised presisss incorporating in such construction all items of work described as Landlord's Work in Exhibit "A" attached hereto and made a part hereof (all such item are hereinafter collectively referred to as "Landlord's Work"). Landlord shall have the exclusive right to determine the architectural design and the structural, mechanical and other standard details and specifications of Landlord's Work, . including, but not limited to, the type of materials and the manufacturer and supplier thereof. SECTION 4.G2. Tenant's Improvements and Fixtures. (a) Within lGirty aye • ar Landlord's architect provides Tenant with Outline Plans for the demised premises, Tenant shall furnish to Landlord, for Landlord's approval, complete working drawings and specifications, pursuant to Exhibit "A". (b) Within ten (30) days after the notice of approval of Tenant's complete working drawings and specifications by Landlord's architect, Tenant shall, at its sole cost and expense, subject to any - 5 provisions For reimbursement set forth in the Indenture, commence and thereafter promptly complete all the work and other requirements imposed upon Tenant in Exhibit "A", (all such items being herein referred to am "Tenant's Work"). In the event Landlord, on Tenant's behalf, shall perform any work or install any equipment included in Tenant's Work, Tenant, within fifteen (15) days after receipt of a bill therefor, shall pay to Landlord, as additional rent, a sum equal to all sums paid and costs incurred by Landlord in performing such work and/or installing such equipment plus administrative costs of Landlord in a sum equal to twenty percent (20:) of such sum and/or coats. Notwithstanding anything contained in this Section 4.02 to the contrary, Landlord shall not be responsible or liable to Tenant, its agents, servants, employees, licensees, or contractors, or their respective agents, servants, employees, licensees or contractors, for any loss or damage to the property of such party occurring prior to or subsequent to the commencement of the term. Nothing in this Lease shall be construed as in any way constituting a consent or request by Landlord, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer, or mterialmon for the performance of any labor of the furnishing of any materials for any specific or general improvement, alteration, or repair of or to the demised promisee or to any buildings or improvements thereon, or to any part thereof. SECTION 4.03. Financing. Landlo d reserves the right to sever the ownership of or title to the various sections of the Shopping Center and/or to place mortgagee on said sections, in which case the right of Tenant and other tenants in the Shopping Center will be preserved by a written declaration or agreement, to be executed by Landlord and duly recorded, creating mutual, reciprocal and interdependent rights to use the parking and other common areas and the utilities and facilities needed for the full use and enjoyment 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 such instruments reasonably required by Landlord and its mortgagee to effectuate the provisions of this Section 4.03. SECTION 4.04. Excuse of Performance. NotwiMtanding enemy Fing in this Lease to the contrary, if Tenant shall be delayed or hindered in or prevented from performance of any act required hereunder by reason of any strike, lock- out, 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 or service, Act of God or other reasons of a like nature not related to the fault of Tenant, then performance of such act by Tenant shall be excused for the period of the delay end the period for the performance of any such act by Tenant shall be extended for a period equivalent to the period of such delay; provided, however, the 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 with respect to the performance of any of the terse, covenants and conditions of this Lease if Landlord's failure to perform such term, 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 financing, Act of God, fire or other casualty or other cause, whether similar or dissimilar to those enumerated in this Section, which is beyond the reasonable control of Landlord. ARTICLE V CONDUCT OF BUSINESS SECTION 5.01. Use of Premises. (a) cep! as cERarwise specifically provided herein, commencing on the commencement date and thereafter for the balance of the term of this Lease, Tenant shall continuously occupy and use the demised premises solely for conducting the business specified in the Indenture of Lease an the permitted use, and will not use or permit or suffer the use of the demised premises for any other business or purpose. In addition, Tenant agrees that Tenant shall not operate or cause or permit to be operated any catalogue, mail, or telephone order sales in or from the demised promisee except the incidental sale of merchandise which Tenant is permitted to sell over the counter to customers in the demised premises pursuant to the permitted use act forth in the Indenture of Lease. The authorization of the use of the premises for the business purposes set forth in the Indenture of Lease does not constitute a representation or warranty by Landlord that any particular use of the premises is now or will continue to be permitted under applicable laws or regulations. (b) Tenant shall not permit, allow or cause any of the following to be conducted in the demised promisees 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 merchandising in the Shopping Center, nor shall Tenant's advertising indicate or infer that Tenant is operating its business in a manner which is not consistent with the general high standards of merchandising in the Shopping Center. Nothing contained in this Section 5.01(b) shall affect or is - 6 - 1 intended to affect Tenant's pricing policies. (e) Because the adequacy of the rental hereunder is depstdent upon Tennt'e Gross Sales whether -or not Percentage Rent is payable heraunder, Tennt agrees that commencing with the commencement date and thereafter throughout the tare of this Loom, Tenant will continuously, actively and diligently operate or cause the permitted business to be operated in good faith and in an efficient, businesslike end respectable manner, maintaining in the destined premises a full staff of employees and a full stock of seasonable merchandise of the quality, kind, type and breadth which Trent usually sells, and employing Tenant's best continual efforts and abilities to the end that the maximum Gras Salsa which can reasonably be produced free the doolsed promises shall be produced. Trent shall not use or permit any use of the demised promises, 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. (d) Throughout the term of this Lease, Tenant shall cause its store to remain open from 10:00 A.M. until at least 9t30 P.M. each day of the week and these hours on Sundays and holidays during which the enclosed mall is open to the public. Tenant mgrass that the hours 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 business operated at or free the demised premises only under the name set forth in the first page of the indenture of Lease, unless and until the use of another name is permitted, in writing, by Landlord. SECTION 5.02. Storage. Tenan warehouse, store and/or stock in the leased premises only such goods, wares and merchandise as Tenant is permitted and intends to offer for Sole at retail in, at or from the leased promises. This shall not preclude occasional emergency transfers of merchandise to other stores of Tenant, if any, not located within the Shopping Center. SECTION 5.03. Additional Use of the Promises. Tones coovanints endigrSoS7ffGf?enmnt at its own cost and expense: (a) will keep all exterior and interior store front surfaces clean and will maintain the rest of the demised premises and all corridors and loading areas immediately adjoining the demised premises in ¦ clean, orderly. and sanitary condition and free of insects, rodents, vermin and other pests; (b) Will not permit accumulations of any refuse, but will remove the saes daily and keep such refuse in odor-proof, rat-proof containers within the interior of the destined promises shielded from the view of the general public until remeved and will not burn any refuse whatsoever but will cause all such refuse to be removed by such parson or companies, including Landlord, as my 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 arrangsmnts for the disposal of any fats, oils, greases and/or batter. If Tenant shall fail to remove all such refuse, me should fail to make special arrangements for the disposal of any fats, oils, grosses and/or batter, Landlord my remove or dispose of the same and Tenant shall pay to Landlord all suss and cents incurred by Landlord in performing such removal or disposal plus administrative costs of the Landlord in a sus equal to twenty percent (20%) of such suss and/or costa as additional rent; (c) Will replace promptly with glass of like kind and quality any plate glass or window glass of the demised premises which may become cracked or broken; (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 promisee or within two (2) fast of any entrance from the domised promises to the enclosed mall, on the footwolke adjacent thereto or elsewhere an the exterior thereof; (e) Will not use or permit the use of any apparatus, or sound reproduction or transmission, or any musical instrument, in such manner that the sound so reproduced, transmitted or produced shall be audible beyond the confines 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 promise; (f) Will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the confines of the demised promisee; (g) Will not cause or permit objectionable adorn to emanate or be dispelled from the demised promisee; (h) Will not solicit business, distribute handbills or other advertising matter or hold demonstrations in the parking areas or other Common Areas; (i) 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; (j) Will comply with all notions, orders, laws oW ordino ose, including all environmental laws and lows relating to wastes aW hazardous materials and any aniranmsntsl state, county or local laws or regulations, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the Resource Conservation and Recovery Act of 1976, as amended from time to time, with any pre- approvals, if required, to be granted by the respective governmental agency, and all recommendations of the Association of Fire Underwriters, Factory Mutual Inaurnea Companies, the Insurance Services Organization, or other similar body establishing standards for fire insurance ratings with respect to the use or occupancy of the promisee by Tenant, and will participate in periodic fire brigade instruction and drills at the request of Landlord end will supply, maintain, repair and replace for - 7 - 4 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 waste, except as permitted or required by law and subject to the consent of the Landlord and the issuance of all appropriate licensee and persits and compliance with all laws and regulations relating to 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 entrance other than an such a sell, in which latter case Tenant shall use its beat efforts to schedule such deliveries outside Shopping Center business hours, except with Landlord's approval in emergency situations; (1) Will light the show windows of the demised promisee and exterior signs each day of the year to the extant which shall be regrired by Landlord but in no event later than one hour after the close of the Center; (a) 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 to, sidewalks and loading docks free from ice and snow and Tenant hereby agrees that Tenant is solely liable for any accidents occurring on said outside areas due or alleged to be due to any accumulation of ice and snow; (n) Will refer to the name of the Shopping Center in all advertising done to promote sales at the demised premises; (o) Will, if required by Landlord, install, inspect and maintain filtration devices, including, without limitation, grease traps, oil splittera and/or acid neutralizers, in and an 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 aforesaid filtration devices, Landlord may undertake such installation, inspection and/or maintenance and Tenant shall pay to Landlord all 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 twenty percent (20%) of such sums and/or costs as additional 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, seepage or damage, whether occurring on or off the premises, resulting from a violation of this provision by Tenant or Tenant's employees, agents or invitees shall be borne by Tenant. All grease traps and other plumbing traps shall be kept clean and operable by Tenant at Tenant's own cost and expense; (q) Will not permit any shopping carts in the Common Areas even if taken there by customers; (r) Will not place or cause or permit to be placed within the demised premises, pay telephones, vending machines (except those for the exclusive use of Tenant's employees) or amusement devices of any kind without the prior written consent of Landlord; SECTION 5.04. Rules and Regulations. (a) Len29 d reserves the right from time to time to adopt and promulgate rules and regulations applicable to the demised premises and the Shopping Center and to amend and supplement such rules and regulations. Notice of such rules and regulations and of any amendment and 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 some shall be applied uniformly to substentiallYY all non-department store retail tenants of the Shopping Center. (b) Landlord's rights and remedies in the event Tenant shall fail to comply with. and observe such rules and regulations shall be the same as though such rules and regulations were set forth in Section 5.03 of this Lease. ARTICLE VI GRANT Of CONCESSIONS SECTION 6.01. Conditions to Grant. The provision against subletting elsewhere contained in this Lease shall be applicable so as to prohibit Tenant from granting concessions without the consent of Landlord for the operation of one or more departments of the business of Tenant, and any grant of concessions consented to by Landlord shall be subject to the conditions that (a) each such concession which may be granted by Tenant shell be subject to all the terms and provisions of this Lease; (b) the Gross Sales from the operation of each such concession shall be deemed to be s part of the Grose Sales of Tenant for the purpose of determining the Percentage Rent payable to Landlord; (c) all of the provisions hereunder applying to the business of Tenant including, but not limited to, the provisions of Articles II and III shall apply to each such concession; (d) unless otherwise approved in writing by Landlord, such department or departments shall be operated only as part of the business operation generally 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 leased premises shall at all times be operated directly by Tenant. -8- ARTICLE VII COMMON AREAS SECTION 7.01. Definitions Control. All areas, apace, Facilities, equipment, and signs, 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 employees, agents, subtenants, concessionaires, licensees, customers and other invitee, are collectively referred to herein as "Common Area". If and to the extent made available by Landlord, Common Areas shall include, but not be limited to, the sidewalks, parking areas, access roads and drives, driveways, parking docks, bridges, landscaped arson, truck servicaways, tunnels, loading docks, open and ernelesed pedestrian walkways, corridors and malls, courts, stairs, ramps, elevators, escalators, comfort and first aid stations, public washrooms, community hall or auditorium, parcel pick-up stations and utility lines. All Common Aroma in or about the Shopping Canter shell be subject to the exclusive control of Landlord. Landlord shall operate, manage, equip, clean, light, surface and maintain the Common Arses all in such masr as Landlord, in its sole discretion, may, from time to time, determine (including, without limitation, the right to keep the enclosed mall open only during the hours when the Shopping Canter is open for business) and Landlord shall have the salt right and exclusive authority to employ and discharge all personnel with respect thereto. Landlord hereby expressly reserves the right from time to ties to construct, maintain and operate lighting and other facilities, equipment and signs on all of the Caron Areas{ to clean the Common Areas; to use and allow others to use the Comm Aran for any purpose= to change the size, area, level, location and arrangement of the Common Arep= to build multistory and/or subterranean parking facilities{ to regulate parking by tenants and other occupants of the Shopping Canter and their respective employees, agents, subtauumts, awkoassionaires and lieenssseM to enforce parking charges (by operation of esters, or otherwise) with appropriate provisions for parking ticket validation for tenants= to close temporarily all or any portion of the Common Areas for the purpose of making repairs, changes or alterations thereto or performing necessary maintenance in connection with any emergency, in connection with closings resulting from adverse weather conditions or for any other purpose whatsoever, whether such purpose is similar or dissimilar to the toregoingM to discourage non- customer parking= to establish, modify and enforce reasonable rules and regulations with respect to the Common Areas and the use to be made thereof. For the term of this Lases Tenant is hereby given the license in common with all others to whom Landlord has or spy hereafter grant rights to use, the Comm Arose as they may from ties to time exist= provided, however, that if ouch ligetse shall at any time be revoked, in whole or in part, or the size, area, level, location or arrangement of such Comm Areas or the type of facilities at any time forcing a part thereof be changed, altered, rearranged or diminished, Landlord shall not be subject to any liability therefor, nor shell Tenant be entitled to any compensation or diminution or abatement of rant therefor, nor shall such alteration, rearrangement, revocation, change or diminution of such Common Areas be deemed s constructive or actual eviction or otherwise be grounds for terminating or modifying this Lease. In order to establish that the Shopping Canter or any portion thereof Is and will continua to twain private property and to prevent a dedication thereof or the accrual of any rights to any person or to the public thereon, Landlord hereby reserves the unrestricted right, in Landlord's sole discretion, to close all or any portion of the Common Areas to such extant me, in the opinion of the Landlord's counsel, my be legally sufficient to prevent such dedication thereof or accrual of any rights to any person or the public thereon= provided, however, Landlord reserves the right at any time and from time to time to dedicate to public use part or all of the ring roads, ocoess road, wW driven and utility lines, together with all easements required to effectuate such dedications, as it my see fit. SECTION 7.02. P_ar?kinq Facilities. Tenant fd nali caws and its employees to park only in the outer areas of the parking lot or ouch places as provided and designated from time to time by Landlord for employes parking. Within ten (10) days after a request by Landlord, Tenant shall dslivet to Landlord a list of Tenant's and its employees' automobiles, which such list shall set forth the description of and the license numbers assigned to such automobiles and their state of issue. Thereafter, Tenant shall advise Landlord of any changes, additions or deletions in such list. If any automobile appearing on said list is parked in any area of the Shopping Canter other than the area designated by Landlord at any time after Landlord has given notice to Tenant or Tenant's store manager that the some automobile has previously been parked in violation of this provision, then Tenant shall pay to Landlord the sum of Twenty-Five Dollars ($25.00) per day for each such automobile for each day (or part thereof) it is parked in violation of this provision. Tenant shell pay such sum to Landlord within tan (10) days after receipt of notice from Landlord. In addition to the foregoing, Tenant hereby authorized Landlord in such event to remove from the Shopping Canter any of Tenant's automobiles, or automobiles belonging to Tenant's employmes, and/or to attach violation stickers or notices to such automobiles, and Tenant hereby waives and releases Landlord and hereby indemnifies and holds Landlord harmless from all claim, liabilities, coats and expanses which may arise therefrom. SECTION 7.03. Roof M1i?l?ls,? __Changes nd Additions to Canter. (a) Yoder ya?iwervss-677 excTueTve r nt at any time and from time to time to use all or any part of the roof and exterior walls of the demised promises for any purpoesM to erect scaffolds, protective barriers or other aids to construction on, around and about the exterior of the - 9 - demised premises, provided that access to the demised premises shall not be substantially denied; to enter the demigod premises to shore the foundations and/or walls 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 parts of the Shopping Center 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 side or rear walls or ceiling space of the demised premises, provided that there shall be no encroachment upon the interior of the demised premises. Landlord's right hereunder may be exercised by Landlord's designees. (b) Landlord hereby reserves 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 shall have no interest of any kind whatsoever in the said additions or additional stores or adjoining buildings. Landlord also reserves the right to enlarge the area of the Shopping Center by adding additional ground thereto from time to time and, whether at 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 stories on such building or buildings and to build adjoining the some and to construct double-deck elevated or subterranean perking facilities. (c) If any excavation shall be made or authorized to be made upon land adjacent to the leased premises, 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 wall or the building -of which the leased premises form a part from injury or damage and to support the some by proper foundations, without any claim for damages or indemnification against Landlord or diminution or abatement of rent. (d) Landlord shall not be liable in any such case for any inconvenience, disturbance, loss of business 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. Richt to Relocate. The purpose of ne pan hereto annexed as Exhibit "B" is solely to show 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, subtractions from, and/or relocations or rearrangements of, the buildings, parking areas, and other Common Areas (as defined in Section 7.01 hereof) shorn on such plan; provided only that the size and location of the demised premises shall not be altered and reasonable access thereto shall not be substantially impaired; provided, however, that Landlord reserves the right to relocatq. a kiosk premises, at its sole expense, to a location of equal desirability upon fifteen (15) days' notice to Tenant. SECTION 7.05. Ex enses. Landlord subject to the Common Area Payment as set forth in Section 7.06) will at its expense operate and maintain or cause to be operated and maintained the Common Areas and the Shopping Center. For the purposes of this Lease, "Operating Coate" shall be those costa of operating and maintaining, or of causing the operation and maintenance of, the Common Areas 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 maintenance) and insuring the some 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 personal injury, deaths and property damage with a personal injury endorsement covering false arrant, detention or imprisonment, malicious prosecution, libel and Blander, and wrongful entry or eviction, workman's compensation insurance, plate glass insurance, contractual liability insurance and fidelity bonds); removing snow) ice, rubbish and debris; inspecting; rental and depreciation (over a period not exceeding sixty 160) months) of machinery and equipment and other non real estate assets used in the operation and maintenance of the Shopping Centers repairing and/or replacing of paving, roofing, curbs, walkways, landscaping, drainage, on-alts 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 uniforms; the rental of music programs, services and loudspeaker systems including the furnishing of electricity therefor; all charges that may result from any environmental or other laws, rules, regulations, guidelines or orders; the cost of obtaining and operating public transportation or shuttle bus systems used in connection with bringing customers to the Shopping Centers the gross compensation of all personnel required or necessary to implement the operation, maintenance, administration, or repair of the Shopping Center including, without limitation, management, secretarial, office, maintenance personnel, the cost of compensating Landlord's off-site personnel involved in the administration of, end providing services to, the Shopping Center, including, without limitation, legal, accounting and aecreterial personnel, based upon an apportionment of such compensation among all properties in which Landlord or its affiliates own an equity interest and to supervise and accomplish the foregoing and an administrative charge equal to fifteen percent (15%) of the total of all Operating Coats. SECTION 7.06. Common Area Payment. (a) For each -Accounting Period" (as defined in Section 7.06(f) during the term of this - 10 - Lease, Tenant shall pay to Landlord, as additional rent, as Tenant's share of the Operating Costs, a sus equal to the product obtained by multiplying (i) the total operating Costs for ouch Accounting Period less all contributions thereto actually safe to Landlord by occupants of any Separately Assessed Premises by (ii) a fraction, the numerator of which shall be the Square fast of floor area of the demised promises, and the denominator of which shall be the square fist of leased floor area in the Shopping Center. For the purposes of this Section, lowed floor area shall moan the spare feet of floor area in enclosed buildings which are erected on portions of the Shopping Center other than Separately Assessed promises as defined in Section 2.04(4), which are designed exclusively for use and occupancy by tenants other than occupants of Separately Assessed Promises, and which are occupied pursuant to an agreement with Landlord by the terms of which Landlord obtains more than a nominal rental. All such floor area shall be se determined pursuant to the provisions of Section 2.04(j) and shall be fixed as of the lost day of the applicable Accounting Period. (b) On the first day of each calendar month during that portion of the taro 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 Twet's share of the Operating Costs as set forth in Section "F" of the Indenture of Lase. If the commencement date hereof shall not be the first day of a calendar month, Tenant's payment of its store of Operating Costa for the fractional month between the commencement date and the first day of the first full calendar month in the term shall be prorated on a per diem basis (calculated an a thirty (30) day month) and shell be paid together with the first payment of Fixed Wnibum Rant. (c) After the first Accounting Period, Tenant shall co ntinus 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 my be increased by Landlord after the and of each Accounting Period during the term hereof an the basis of the actual Operating Costs for the immediately preceding Accounting Period. Upon Landlord furnishing to Tsnsnt a statement setting forth such revised Operating Costs, Tenant shall pay to Landlord such revised share in equal monthly installments, each much installment to be a sum equal to one-twelfth (12th) of such revised Operating Costs in advance on the first day of each calendar month thereafter until the next succeeding revision. (d) Following the and of each Accounting Period in which Toment's shore of Operating Costa exceede 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 computations me aforesaid, Landlord's Statement shall be conclusive evidence of Operating Costs. (e) If Tenant's proportionate share of Operating Costs eseeede Tanant'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. (f) For the purpose of this Lease, the words "Accounting Period" mean the period consisting of twelve (12) consecutive calendar months commencing an a date determined by Landlord and each succeeding twelve (12) calendar month period commencing during the term of this Laws; provided, however, the first Accounting Period shall commence on the date the Shopping Center first opens for business with the public and shall terminate on the date immediately preceding the data to determined by Landlord. (g) If the term of this Lease commences after the date the Shopping Center first opens for business with the public or terminates (other than by ream of Tenant's default) during an Accounting Period, Tenant's obligation for Taant'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 Lomas. SECTION 7.07. P rtiona Cost of Security,. Landlord may sTeCf, WE *WIT- a- be required, to provide security for the Shopping Center. If Landlord shall elect to provide Security for the Shopping Center, Tenant shall pay its proportion- ate cost of such security determined Se follower (a) For mch Accounting Period or portion thereof in the term hereof Tenant shall pay to Landlord, as additional rent, the amount obtained by multiplying the total of all costs 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 floor area of the demised premises, and the denominator of which shall be the spare feet of all "leasable floor area" (ea defined in Section 2.04(d) of this Lease. All such floor area shall be as determined pursuant to the provisions of Section 2.04(j) and shall be fixed as of the last day of the applicable Accounting Period. (b) Tenant shall pay its proportionate cost of security within twenty (20) days after the date of the furnishing of a statement of such charges by Landlord. (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 Operating Costs, for the purpose of Articles XVIII and XIX and Sections 13.02, 14.01 and. 20.02 of this Lease, the words "Operating Costs" shall be deemed to include such share of cost of security. ARTICLE VIII SIGNS{ AIMINGSd CANOPIES= FIXTURESI ALTERATIONS - 11 - SECTION 8.01. Si ?g?ns Armin and Canopies. (e) .nt aha 1,it 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 from any lose, cost of damage as a result of the erection, maintenance, existence or removal of such signs. All signs shall be in 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 agrees to remove all signs and repair all damage caused by such removal. Tenant covenants that no flashing, illuminated or paper signs will be used anywhere in the demised premises and all signing is subject to Landlord's prior written approval. Tenant shall not install or affix any sign, device, antenna, fixture or attachment on or to the exterior or interior of the demised premises including, by way of illustration, any window or door; nor place any vent, structure, building, improvement, sign or advertising device or obstruction of any kind within the Common Areas or on the exterior or interior walla of the demised premises, without first obtaining Landlord's written consent. (b) Tenant shall neither place nor maintain nor suffer to be placed or maintained on the exterior of the demised promisee or on the glass of any window or door of the demised premises which shall be visible from the exterior thereof or within three (3) feet of any such glass (other than neatly lettered signs of reasonable size placed on the floor of the display window identifying articles offered for sale and the price thereof) any sign, awning, canopy, decoration, lettering, advertising matter or any other thing without in each instance first obtaining Landlord's written approval thereof; and Tenant further agrees to design and to maintain such sign, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times. (c) Tenant shall not paint or decorate any part of the exterior of the demised premises, or any part of the premises which shall be visible from the exterior thereof, without first obtaining Landlord's written approval of such painting or decoration. (d) Tenant shall install and maintain at all times, subject to the other provisions of this Section, displays of seasonable merchandise in the show windows (if any) of the demised premises; and Tenant further agrees that all articles and the arrangement, style, color and general appearance thereof, in the interior of the demised premises which shall be visible from the exterior thereof, including, but not limited to, window displays, advertising matter, signs, merchandise and store fixtures, shall be maintained in the premises so as to be in keeping with the character and standards of the Shopping Center. SECTION 8.02. Prorty in Demised Premises. °- (a) All 1WasehoTd-proves, 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 shall not be removed unless replaced with like property. (b All inventory and all trade fixtures hereafter installed or placed by Tenant in the demised premises shall be new, shall remain the property of Tenant and shell be removable by Tenant at the expiration or earlier termination 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 Tenant fail to so remove Tenant's property and/or to so restore the premises, Landlord may do so, collecting, at Landlord's option, the coat and expense thereof, as 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 this Leese including, but not limited to, a termination by Landlord pursuant to this Lowest shell, unless Landlord 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 compensation for such property). In the event Landlord gives Tenant such notice to remove any or all of such property, Tenant shall promptly remove such property as may be specified by Landlord in such notice. Notwithstanding anything herein contained to the contrary or any decision of any court to the contrary, the term "trade fixtures" shall not include any attached leasehold improvements including but not limited to air-conditioning, heating, lighting, electrical and plumbing equipment installed by Tenant in the demised promisee, nor any wiring or other apparatus related thereto. (c) In the event Tenant ceases its business operation in the demised promisee and is in default with respect to its obligation for the continuous operation of its business, Tenant shall be deemed to have abandoned the demised premises and all property of Tenant shall also be deemed to have been abandoned and said property may be retained or disposed of by Landlord as Landlord desires. SECTION 8.03. Improvements and Alterations. (a) Tenant covenants and agrees not to make or permit to be made any alterations, improvements and additions to the demised promisee or any part thereof except by and with the written consent of Landlord first had. All alterations, improvements and additions 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 shall remain for the benefit of Landlord at the end of the term or other expiration of this Leese in as good order and condition as they were when installed, reasonable wear and tear excepted. (b) 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 lion attaching to the demised - 12 - premises or the Shopping Center, and Tenant shall include in all contracts and subcontracts for work to be performed an Tenant's behalf at the deniasd presisse provisions wherein such contractor or subcontractor acknowledges that Landlord hem- no liability under much contracts and subcontracts and that such contractor or subcontractor waives any right it may have to lion or attach Landlord's parcel or the Shopping Center of which Landlord's parcel is a part, and should any such lion 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) days after written repast by Landlord. If Tenant shall fail to cause such lien or Notice to be bonded against or to be discharged within the period aforesaid, then, in addition to any other right or remedy which Landlord may have under this Leese, at law or in equity, Landlord may, but shall not be obligated to, discharge the mama either by paying the amount claimed to be due or by procuring the discharge of ouch lien by deposit or by bonding proceedings and, in any such event, Landlord shall be entitled, if Landlord so elects, to compel the prosecution of any action for the foreclosure of such lien or Notice by the lionor with interest, costs and expenses. Any amount so paid by Landlord and all costs and expenses incurred by Landlord in connection therewith, together with interest thereon at the highest rate permitted by low from the respective dates of Landlord's asking of the payment and incurring of the cost and expense, call constitute additional rant payable by Tenant under this Leese and shall be paid by Tenant to Landlord on demand. (c) The provisions of this Article shall survive the expiration or earlier termination of the term of this Lease. ARTICLE IX MAINTENANCE AND REPAIRT SWDEiDER OF LEASED PREMISES SECTION 9.01. Repairs and Maintenan kX Tenant. (a) Tim1 m1 L \ll =lose i?'l?i own expense keep and maintain the desised premises (including, but not limited to, all entrances and the inside and outside of all glass in the doors and windows and show window moldings) and all partitions, doors, fixtures, signs, equipment and appurtenances thereof in good order and repair, and in a neat, safe, clean and orderly condition, including, but not limited to, reasonable periodic painting as determined by Landlord and making ell non-structural ordinary and extraordinary, foreseen and unforeseen repairs and replacsmento to the demised premises, including, without limitation, repairs and replacements to the plumbing and sewage facilities within the demised premises or under the floor* slob including free flow up to the main sewer line, electrical, heating, ventilating and air-conditioning systems and escalators and elevators, if any, and mechanical system and installations therein. Tenant shall not overload the electrical wiring serving the premises or within the practices, 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 premises . (b) Tenant will repair promptly at its own expanse any damage (whether structural or non-structural) to the demised promises caused by any construction or alterations performed by Tenant or bringing into the premises any property for Tenant's use, or by the installation at removal of such property, regardless of fault or by wham such damage shell be cawed, unless caused solely by the negligence of Landlord or its servants or employees. (c) In the event Tenant defaults in the performance to Landlord's satisfaction of any of its obligations under this Section 9.01, and such default continues for a period of tan (•10) days after written notice free Landlord (except that in an emergency no notice shall be required), Landlord, in addition to Landlord's other remedies under this Low, at law or in equity, may (but shall not be obligated to do so) cure such default an behalf of Tamest without any liability of Landlord, its agents, servants, employees, contractors or suboontraetors for damp" to Tenant's merchandise, fixtures or other property or to Tenant's business by remaon thereof, and Tenant shall reimburse Landlord, as additional rant, upon demand, for any ewe paid or eats incurred in curing such default, plus administrative costs of Landlord in a sun equal to twenty percent (20X) of such sue and/or costs. SECTION 9.02. Structural Rewire. (a) xee? pt as otherwise provided by 9.01(b), structural portions of the promises, the roof of the demised promises and those portions of the extsriar of the demises praises which Tenant is not obligated to maintain pursuant to Section 9.01(a) will be repaired by Landlord provided Tenant gives Landlord notice specifying the need for and nature of such repairs= provided, however, if Landlord is required to make any repairs to such portions of the demised promises by reason, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's agent, servants, employes, contractors or subcontractors, or by roman of any unusual use of the deals" promises by Tenant (whether or not such use is a permitted use hereunder), Landlord may collect the cast of such repairs, as additional rant, upon demand. For the purpose of this Lew, any difference In floor level, shifting of floor slab, or deviation in finished floor height resulting from the insertion or cons ruction of an expansion joint or strip in the floor slab shell not be domed a structural defect requiring repair by Landlord, but rather, a normal construction practice which shell be Tanent's responsibility to appropriately plan for in its construction and use of the dmaicad premises. (b) If, without Landlord's prior consent, Tenant perform any alterations, additions, - 13 - improvements, changes, affixations of chattels or other work which affects the structural portions of the demised premises and/or the roof of the building of which the demised premises are a part and/or that portion of the exterior of the demised premises which Landlord is obligated to repair pursuant to Section 9.02(a) 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 obligation and thereafter Tenant agrees 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 remedies under this Lease, at low or in equity, may (but shall not be obligated to do so) cure such default an behalf of Tenant without any liability of Landlord, its agents, servants, employees, contractors or subcontractors for damage to Tenant's merchandise, fixtures or other property or to Tenant's business by reason thereof, and Tenant shall reimburse Landlord, as additional rent, upon demand, for any sun paid or costs incurred in curing such default, plus administrative costs of Landlord in a sum equal to twenty percent (20X) of such sums end/or costs. For the purposes of the foregoing, if Tenant performs any such alterations, additions, improvements, changes, ¦ffixstiona or other work in a manner not consistent with Landlord's prior consent thereto, such work shall be deemed to have been performed without Landlord's consent. SECTION 9.03. Surrender of Premises. At the expiration oror earlier termination of the term of this Lease, Tenant shall peaceably surrender the leased premises in the ease condition including, but not limited to, the conditions of cleanliness, as the leased premises were upon the commencement of the term of this Lease, ordinary wear and tear excepted to the extent the leased promisee is not required to be repaired and/or maintained by Tenant and damage by unavoidable casualty excepted to the extent that the same is covered by Landlord's fire insurance policy with extended coverage endorsement, and Tenant shall surrender all keys for the leased premises to Landlord ¦t the place then fixed for the payment of rent and shall notify Landlord in writing of all combinations of locks, safes end vaults, if any, in the loosed premises. Tenant shall comply with the provisions of Section 8.02 respecting the removal of its property before surrendering the promisee an aforesaid. Any property not so removed at the expiration of the tore hereof, shall be deemed to have been abandoned by Tenant, and may be retained or disposed of by Landlord, as Landlord shall desire. Tenant's obligation to observe and perform the covenants set forth in this Section 9.03 shall survive the expiration or earlier termination of the term of this Lease. ARTICLE X INDEMNIFICATION; SUBROGATION SECTION 10.01. Indemnification and Waiver of Claim. (a) enan will a en?ancept?Ehe extent caused by the negligence of Landlord, its agents, servants, and employees, will indelm+ify Landlord and Agent and save them harmless from and against any and all claim, actions, damages, liability and expense (including, but not limited to, attorney's fees and disbursements) in correction with the lose of life, personal injury or damage to property or business arising from, related to, or in connection with the occupancy or use by Tenant of the demised premises or any part of Landlord's property or the Shopping Center or occasioned wholly or in part by act or omission of Tenant, its contractors, subcontractors, subtenants, licensees or concessionaires, or its or their respective agents, servants or employees. Tenant shall also pay all costs, expenses and reasonable attorney's fees that my be expended or incurred by Landlord and/or Agent in successfully enforcing the covenants and agreements of this Lease. The provisions of this Section 10.01 shall survive the termination or earlier expiration of the term of this Lease. (b) Unless and then solely to the extent such dmaege is caused by the negligent acts or omissions of Landlord, Agent, or their respective agents, servants, and employees, neither Landlord, Agent nor their respective agents, servants, employees or contractors shall be liable for, end Tenant, in consideration of Landlord's execution of this Lease, hereby releases all claim for loss of life, personal injury or damage to property or business sustained by Tenant or any person claiming through Tenant resulting from any fire, accident, occurrence or condition in or upon the Shopping Center or any part thereof (including, without limitation, the demised promisee and the building of which the some is a part), including, but not limited to, such claims for lose of life, personal injury or damage resulting from (1) any defect in or failure of plumbing, heating or air conditioning equipment, electrical wiring or installation thereof, water pipes, stairs, railings or walks; (2) any equipment or appurtenances being out of repair; (3) 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; (S) the escape of steam or hot water; (6) 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 some is a part or otherwise; (7) the falling of any fixture, planter or stucco; (8) broken glass; (9) any act or omission of other tenants or other occupants of the Shopping Center; and (10) any act or omission of Landlord, Agent or their respective principals, agents, servants and employees whether occurring on, prior to, or subsequent to the date of this Lease. The foregoing - 14 - waiver and release is intended by Landlord and Tenant to be absolute, unconditional and without exception and to supersede any specific repair obligation imposed upon Landlord hereunder. . ARTICLE XI INSURANCE SECTION 11.01. Insurance. (a) anon w ll keep in force in companies licensed to do business in the state where the Center is located at Tenant's expense at all times 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 adjoining the demised premises, if any, and the business operated by Tenant and any subtenants, licensees and concessionaires of Tenant in at from the demised penises with minimum limits of One Million Dollars ($1,000,000) combined single limit for bodily injury and property damage, end including coverage for liability assumed under contracts. (2) Workers' Compensation insurance which will provide for all Tenant's employees the statutory benefits for the state in which demised promises are located, and will also include Employers' Liability insurance with minimum limits of One Hundred Thousand Dollars ($100,000.00). (3) Such other types of insurance (excluding rent insurance in favor of Landlord) and such additional amounts of insurance as, in Landlord's judgment, are necessitated by good business practice. (b) Prior to delivery of possession of the demised promises and within tan (10) days of each occasion of renewal or replacement of insurance coverage, throughout the ten of the Lease, Tenant shall submit to Landlord, marked "Attention Insurance Department", a valid Certificate of Insurance, signed by an authorized agent of the insurer, which shall evidence all the insurance coverage required by this Section 11.01 and which shall set forth the followings (1) Landlord is named an "additional insured" an the public liability insurance policy. (2) At least thirty (30) days prior notice shall be given to Landlord as to any policy cancellation or any material alteration in coverage. (3) The public liability insurance policy is an "occurrence" form of coverage; (claims-made insurance is not acceptable). SECTION 11.02. Insurance Provisions. t a a con ono this Lease that the Tenant shall install and maintain, in proper working order, an Underwriter's Laboratory and Rating Bureau approved Automatic Extinguishing System in the hoods and ducts serving such Tenant's cooking equipment and deep fat fryers. The system shall also be arranged to shut off the electrical current and/or gas supply to the deep fat fryers when the extinguishing system is activated. No change affecting the operation of this system shall be made without giving prior notification to the Landlord. SECTION 11.03. Effect an Insurance. (a) non w1fI noE-&, omit to do, or suffer to be done or keep or suffer to be kept anything in, upon or about the lagged penises which will violate the provisions of Landlord's policies insuring against loss or damage by fire or other hazards (including, but not limited to, public liability), which will adversely affect Landlord's fire or liability insurance premium rating or which will prevent Landlord from procuring such policies in 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 suffered to be done by Tenant, or kept or suffered by Tenant to be kept in, upon or about the promises shall by itself or in combination with other circumstances existing at the Shopping Center cause the premium rate of fire or other insurance on the leased promises 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 domised promises for the purposes permitted under this Lane or to such other property in the Shopping Center for the use or user soft thereof, Tenant will pay the =most of such increase or, in the event that other circumstances existing at the Shopping Canter shall have contributed to much increase, such equitable portion of such increase as reasonably determined by Landlord, as additional rant upon Landlord's demand and will thereafter pay the amount of such increase, an the ens may very from time to time, with respect to every premium relating to coverage of the domised promises during s period falling within the ten of this Leese until such increase is eliminated. In addition, if applicable, Landlord may at its option rectify the condition existing on the desised promises which caused or was a contributing cause of the Increased premium rate in the event that the Tenant should fail to do to and may charge the cost of such action to Tns+nt as additional rent, payable on demand. In determining whether Increased premium are the result of Tenant's use of the logged promises, a schedule, issued by the organization making the insurance rats on the legged 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 an the legged premises. (b) If for any reason whatsoever including, but not limited to, the abandonment of the demised penises, Tenant's failure to pay the insurance premium or Tenant'@ failure to occupy the do load promises as herein permitted, Tenant fails to provide and keep in force any or all of the - 15 - insurance policies met forth in Section 11.01 hereof, then in such event Tenant shall indemnify and hold Landlord harmless against any loss which would have been covered by such insurance. (c) If Tenant shall not comply with its covenants made in this Section, Landlord in addition to Landlord's other remedies hereunder may (but shall not be obligated to) cause insurance, no aforesaid, to be issued, and in such event Tenant agrees to pay the premium for such insurance OR 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 XII UTILITIES SECTION 12.01. Utilities. (a) o-R-WE shell be solely responsible for and promptly pay all charges for heat, water (including standby), electricity, sewer rents or charges, sprinkler charges, A.D.T. or other alarm systems, 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 promises, 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 premises, Tenant agrees to purchase and pay for some, as additional rent, every month in the term hereof; provided that Tenant shall not be obligated to pay to Landlord an aggregate annual am therefor in excess of the aggregate annual amount therefor which Tenant would otherwise be obligated to pay for similar utility usage and service as a retail customer of the public utility or municipal authority then supplying such utility to the Center. Tenant agrees to purchase from Landlord and pay for electricity to be used by Tenant at the demised premises in accordance with the Utility Schedule attached hereto as Exhibit "CO. (b) In the event that Tenant does not have a water meter installed in the leased promisee, 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 promises in accordance with the rates established from time to time by the company or authority supplying water to the premises. (c) In the event the local authority, municipality, utility or other body collects for the water and/or sewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants and agrees to pay the water 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 assessed, imposed or may become a lien upon the demised premises, or the realty of which they are a part, pursuant to law, order or regulation made or issued in connection with the use,. consumption, maintenance or supply of water, or the water or sewerage connection or system. (d) In no event shall 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, seta of God or public enemy, or any other cause, whether similar or dissimilar to the aforesaid. SECTION 12.02. Application For Utilities. Tenon s a ma a erl appropriate applications to the local utility companies at such times as shall be necessary to insure utilities being available at the demised premises no later then the commencement of the term and pay all required deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company. SECTION 12.03. Operation of Heating and Air-Conditioning. Tenant must operate heating and cooling equipment to maintain store temperatures at such temperatures as will prevent the freezing or bursting of pipes and the draining of heated and chilled air from the enclosed mall. SECTION 12.04. Utility Charge Defined. All some to be paid by Tant in accordance with this Article XII are collectively herein referred to as the "Utility Charge". ARTICLE XIII ESTOPPEL CERTIFICATE; SUBORDINATION; ATTORNMENT SECTION 13.01.. Execution of Estoppel Certificate. At any time, and from -time ' o-F irme upon the written request of Landlord or any mortgagee, Tenant,.within twenty (20) days of the date of such written request, agrees to execute and deliver to Landlord and/or such mortgagee, without charge and in a form satisfactory. to Landlord and/or such mortgagee, a written statements (a) ratifying this Lease; (b) confirming the commencement and expiration dates of the term of this Lease; (c) certifying that Tenant is in occupancy of the demised - 16 - premises, and that the Lease is in full force and effect and has not been modified, assigned, supplsmented or amended except by such writings as shall be stated; (d) certifying that all conditions and agreements under this Lame to be satisfied or performed by Landlord have been satisfied and performed except m shall be stated; (e) certifying that Landlord is not in default under the Lease and there are no defenses or offsets against the enforcement of this Lame by Landlord, or stating the defaults and/or defenses claimed by Tenant; (f) reciting the mount of advance rent, if any, paid by Tenant and the data to which such rent has been paid; (g) reciting the =want of security deposited with Landlord, if any; (h) certifying compliance with the environmental covenants of the Lease as set forth in Section 5.03(3) of the Lease; and (i) any other information which Landlord or the mortgagee shall require. SECTION 13.02. Failure to Execute ?EEs?top?p?el Certificate. The fa rare oT en?en?to ezecu-£e, a now s e and deliver to Landlord and/or any mortgagee a statement 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 person holding or intending to acquire any interest whatsoever in the demised promises or the Shopping Center that this Lease too not been assigned, amended, changed or modified, is in full force and effect end that the Fixed Minimum Rent, Tax Mont, Tenant's share of Operating Costs, Utility Charge, Percentage Rent end additional rent have been duly and fully paid not beyond the respective due dates immediately preceding the date of the request for such statement and shall constitute me to any persons entitled to rely on such statements a waiver of any defaults by Landlord or defenses or offsets against the enforcement of this Lases by Landlord which may exist prior to the date of the written request, and Landlord, at its option, way treat such failure m a Deliberate Event of Default. SECTION 13.03. Schocdinstion and Attornment. iananfiTii{, except hereinafter provided, this Lame is, and all of Tenant's rights hereunder are and shall always be, subject and subordinate to any mortgage, leases of Landlord's property (in sale-leaseback) pursuant to which Landlord has or shall retain the right of possession of the demised promises or security instruments (collectively called "Mortgage") that now exist, or may hereafter be placed upon the demised promises or the Shopping Canter or any part thereof and to all advances made or to be made thereunder and to the interest therson, and all renewals, replacements, modifications, consolidations, or extawiaw thersofl and (b) that if the holder of any such Mortgage ("Martesgee"), the purchaser at any foreclosure sale or at any sale under a power of sale contained in any Mortgage, or the owner, at the time of the hereinafter described request, of the fee estate or the lamaahold estate of the real estate upon which the demised promises is situate (hereinafter referred to as Landlord for purposes of this Section) shall at its sale option so request, Tenant will attorn to, and recognize such Mortgages, purchaser, or Landlord, as the case my be, as Landlord under this Lease for the balance than remaining of the term of this Lease, subject to all term of this Lome; and (c) that the aforesaid provisions shall be "if operative and no further instrument or document shall be necessary union required by any such Mortgages, purchaser, or Landlord. Notwithstanding anything to the contrary sat forth above, any Mortgages may at any time subordinate its Mortgage to this Lease, without Tenant's consent, by execution of • written. document subordinating such Mortgage to this Lease to the extant sat forth therein, and thereupon this Lease shall be deemed prior to such Mortgage to the extant set forth in such written document without regard to their respective dates of execution, delivery and/or recording and in that event, to the extent set forth in such written document such Mortgagee shall have the saes rights with respect to this Lease as though this Lease had been executed and a memorandum thereof recorded prior to the execution, delivery and recording of the Mortgage and as though this Leese had been assigned to such Mortgages. Should Landlord or any Mortgagee or purchaser desire confirmation of either such subordination or such attornment, es the case my be, Tenant upon written request, and free time to time, will execute and deliver without charge and in form satisfactory to Landlord, the Mortgages or the purchaser all instruments end/or documents that may be requested to acknowledge such subordination and/or agreement to attorn, in recordable form. ARTICLE XIY ASSIGNMENT AND SINN TTING SECTION 14.01. Assignment and Sublettin . (a) enT vhf sFwlT-no vo wh arily, involuntarily, or by operation of law assign, transfer, mortgage or otherwise encumber (herein collectively referred to as an "assignment"f this Lease or any interest of Tenant heroin, in whole or in part, not sublet the whole or any part of the demised premises, nor permit the demised promises or any -part thereof to be used or occupied by others, without first obtaining in each and every instance the prior written consent of Landlord. Any consent by Landlord to an assignment or subletting or use or occupancy by others shell beheld to apply only to the specific transaction thereby authorized and shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting or use or occupancy by others, including, but not limited to, a subsequent assignment or subletting by any trustee, receiver, liquidator, or personal representative of Tenant, nor shell the references anywhere in this Lease to subtanants, licensees and concessionaires be construed as a consent by Landlord to an assignment. If this Lease - 17 - or any interest herein be assigned 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 nevertheless collect rent (including, but not limited to, Fixed Minimum Rent, Percentage Rent, the Utility Charge, Tax Rent, Tenant's proportionate share of Landlord's Operating Costs, and additional rent) from the assignee, subleases, user or occupant and apply the net amount collected to the rents herein reserved, 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 assignment, sublease, or occupancy (whether or not denoted as rent) over the rental reserved for such month in this Lease applicable to such portion of the demised premises so 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 assignee, subtenant, user or occupant as Tenant hereunder, or constitute a release of Tenant from 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 demised premises be sublet or used or occupied by others, after having obtained Landlord's prior written consent thereto, Tenant shall nevertheless remain fully liable for the full performance of all obligations under this Lease to be performed by Tenant and Tenant shall not be released therefrom in any manner. (b) 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 subsidiary, shall be transferred by sale, assignment, 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 owing or controlling a majority of the shares of Tenant or of such parent corporation on the date of this Lease, Tenant shall promptly notify Landlord in writing of such change, end such change in voting control shall constitute an assignment of this Leese for all purposes of this Section; provided, however, that this provision shall not apply in the event that over fifty percent (50X) of the voting power of the Tenant corporation or of such parent corporation is held by fifty (50) or more unrelated shareholders or distributed to such number of unrelated shareholders in a public distribution of securities. This clause shall not apply to a corporation whose stock is traded an a nationally recognized stock exchange. (c) If Tenant is a partnership and if at any time during the term of this Lease any person who at the time of the execution of this Lease owns a general partner's interest ceases to own such general partner's interest, such cessation of ownership shall constitute an assignment of this Lease for all purposes of this Section. (d) Upon the occurrence of any of such events as described in Section 14.01(x), 14.01(b), or 14.01(c) hereof, whether voluntary, involuntary, by operation of law, or otherwise, without the prior written consent of Landlord (whether or not Tenant shall have given notice thereof to Landlord), Landlord may treat any such occurrence as a Deliberate Event of Default. to assign or sublet the whole or a part of the written statement, signed by Tenant, setting forth business; (a) The name and address of the proposed assignee or subtenant and the character of its (b) The activities to be conducted in and the use to be made of the premises by the proposed assignee or subtenant; (c) A full and complete outline of all of the terms and conditions of the proposed assignment or subletting; (d) Such financial information and credit information pertaining to the proposed assignee ar subtenant sufficient to enable Landlord to evaluate its financial responsibility, (e) A representation that the proposed assignee or subtenant is not a tenant, subtenant, assignee or occupant of any space in the Shopping Center. SECTION 14.02. Application to Assi n or Sublet. In the event that en shoul3Tsire leased premises, Tenant shall submit to Landlord a the following information: During a period of thirty (30) days after receipt by Landlord of the foregoing information, Landlord may elect (1) to consent to such proposed assignment or subletting; or (2) to refuse or withhold consent to such assignment or subletting; or (3) terminate this Lease, in which event this Lease shall terminate and end upon thirty (30) days' written notice of Landlord's decision to so terminate. Such election may be exercised by written notice served upon Tenant within such thirty (30) day period, but if no such notice is served, it shall be deemed that Landlord has elected to refuse or withhold consent of the proposed assignment or subletting. Landlord agrees not 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 is not unreasonable if the sublease rent is greater then the rent payable under this Lease, unless Tenant agrees in writing that such excess shall be paid to Landlord. SECTION 14.03. COPY of Assignment or Sublease. Landlord's consent to any ae?gnment 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. - 1B - ARTICLE XV MERCHANTS' ASSOCIATION; PROMOTION FURDp AW40TISING SECTION 15.01. Merchants' Association, Promotion Fwd and Advertising. (s) Jonant ccvenant-agrspso m: ms a : amber of any.. Wrchmnts' Association formed by the tenants of the Shopping Center and approved by Landlord, and to maintain such membership throughout the ten of this Lease. Tenant further agrees to pay as its share 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' Association Payment", payable in advance in monthly installments to the Merchants' Association. If Landlord elects, Landlord may collect maid Merchants' Association Payment an behalf of the Merchants' Association in which ease Tenant's Merchants' Association Payment shall be payable monthly together with installments of Fixed Minimum Rent. In addition, should Tenant fail to make any such Merchants' Association payments when due, Landlord, on behalf of the Merchants' Association, may collect said payments in the same manner and with the "me rights granted to Landlord under the Lamas 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 lose than the above amount. The amount of the Merchants' Association payment for each Lease Year, commencing with the second Lease Year, shall be determined as follows: Using the "Consumer's Price Index -- U. S. Average, All Items 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 such Lease Year thereafter as the numerator, multiply said resulting fraction times the above stated Merchants' Association rote. In the event that the Bureau of Labor Statistics ,hall change the boom period, the new index numbers shall be substituted for the old index numbers in making the ,base computation. In the event the Consumer's Price Index of the United States Bureau of Labor Statistics is discontinued, comparable statistics on the purchasing power of the consumer dollar se 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 cmepsignsand pay any special assessments as are required by the Merchants' Association. Within thirty (30) days after billing, Taunt agrsen to pay in addition to the foregoing dues, a single initial was@,- t equal to the amount met forth in Section "J" of the Indenture of Lease for promotional expenses in introducing the shopping center to the market area. Tenant agrees that Landlord or its designee may in its sole discretion and under its exclusive control and supervision provide the association with any or all of, and be reimbursed by the association for providing the following: (i) the services of a marketing director and all staff and outside consultants (including professional marketing service organizations) deemed necessary by Landlord to carry out effectively the marketing and public relations objectives of the Merchants' Association including, without limitation, all payroll, payroll tree and employee benefits of any ouch director end staff; (ii) such reasonable amount of space 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 Landlord's building; (iii) all actual costs incurred in advertising and promoting the Shopping Center, including without limitation radio, newspaper, television, direct and indirect costs of 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. (b) Notwithstanding that Landlord may form the Association as met forth above, Landlord or the Landlord's designee reserves the right at any time and from ties to time, without Tenant's consent or approval, to institute in its place a Promotion Fund to furnish and maintain advertising and sales promotions for the benefit of all tenants of the Shopping Center. Upon formation of the Promotion Fund, the Association will turn over all amounts in its possession to Landlord or the Landlord's designee which will open and maintain a bank account, separate from all of its other bank accounts, into which Landlord or the Landlord's designee shall deposit the promotion fund contribution paid by Tenant, the aforesaid amount received from the Association, as well as other contributions which Landlord or the Landlord's designss may receive from time to time from other tenants of the Center (the aggregate of much funds an hand from time to time being referred to herein as the "Promotion Fund"). Upon turning over such funds to Landlord or the Landlord's dmeignsm, the Association shall be liquidated and dissolved. Commencing with the formation of the Promotion Fund, and thereafter while the Promotion Fund is in existence, Tenant shell pay to Landlord or the Landlord's designee, as Tenant's contribution to the Promotion Fund, the initial charge and on annual charge ("Promotion Charge") which shall be in the mass amounts, including any CPI adjustments, as the assessment Tenant would be required to pay to the Association if the mama was in effect, except that the annual charge shall be payable monthly together with installments of Fixed Minimum Rant. The Promotion Fund shall be used by Landlord or the Landlord's designee to pay all costs and expanses associated with the implementation of an ongoing program for the promotion of the Shopping Center, which program may include, without limitation, special events, shows, displays, signs, seasonal 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 Landlord's designee shall 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 - 19 - necessary to administer such fund and such promotional activities, and such personnel 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 also be used to defray the coat of administration of the Promotion Fund and such advertising programs including, without limitation, the salary of the promotion and advertising director and related administrative personnel, rent and insurance. Landlord shall have no obligation 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 Xv 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 Associ- ation 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 (a) and/or (b) hereof which are then in effect shall cease and become null and void, and thereafter Tenant shell 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. (e) If the Shopping Center, as initially constructed, shall be expanded by adding floor area equal to more than ten percent (10X) of the floor area initially contained in the Shopping Center, Tenant shall pay to Landlord, on demand, an mount 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 to sake 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 DESTRUCTION DF LEASED PREMISES SECTION 16.01. Total or Partial Destruction. (a) Zf-tTieZeaeea-is promes shall be damaged by fire or other casualty covered by Landlord's policies of fire and broad form extended coverage insurance but are not thereby rendered untenantable in whole or in part, subject to the limitations hereafter not forth, Landlord, at its own expense, may cause such damage to be repaired, and the rent shall not be abated. If by reason of such occurrence, the promises shall be rendered untenantable in whole or in part, subject to the limitations hereafter not forth, Landlord, at its own expense, may cause the damage to be repaired and the Fixed Minimum Rent shall be abated proportionately as to the portion of the premises rendered untenantable until the completion of Landlord's repairs thereto. If the leased premises shall be damaged or destroyed by ¦ fire or casualty, in whole or in part, and the Landlord, at its option, decides not to repair and restore the promises, 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 (30) days from and after any occurrence which renders the promises wholly untenantable to cancel this Lease, if said destruction of the premises occurs within the last three (3) years of the term of this Lease, said cancellation to take effect ninety (90) days from and after the receipt of such notice by the other party, and in such event this Lease and the tenancy hereby created shall cease as of the aforesaid cancellation date, the rent to be adjusted 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 considered void. In no event shall Landlord be obligated to expend for any repairs or reconstruction pursuant to this Section 16.01 an amount in excess 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. (b) If the Landlord is required to repair or reconstruct the leased promisee pursuant to the provisions of this Section 16.01, its obligation shall be limited to the building shell. Tenant at Tenant's 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 business in accordance with the provisions of this Lease. Landlord shall not be liable for delays occasioned by adjustment of losses with insurance carriers or by any other cause so long as Landlord shall proceed in good faith. (c) Notwithstanding anything set forth herein to the contrary, Tenant shall be responsible for all repairs and replacements of damage and/or destruction of the leased premises necessitated by burglary or attempted burglary, or any other illegal or forcible entry into the demigod premises. SECTION 16.02. Partial Destruction of Sho in Center. In the event that f' y percent 50: or more of the gross leasable floor area of the - 20 - Shopping Center shall be damaged or destroyed by fire or other cause notwithstanding that the leased Promises 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 ten of this Lease shall expire by lapse of time upon the fifteenth (15th) day after such notice is given and Tenant shall vacate the leased premises and surrender the same to Landlord. ARTICLE XVII EMINENT DOMAIN SECTION 17.01. Total Condemnation. If the who a obi raised promises shall be taken by any public or quasi-public authority under the power of eminent domain, condemnation or expropriation, or in the went of a conveyance in lieu thereof, then this Lease shall terminate as of the date an which possession of the demised promises is required to be surrendered to the condemning authority, and Townt shall have no claim against Landlord or the condemning authority for the value of the unexpired term of this Lease. SECTION 17.02. Partial Condemnation. If any per?o ease promises shall be so taken or conveyed and if such partial taking or conveyance shall render the loomed promises unsuitable for the business of the Tenant, then the term of this Leese shall comma and terminate on of the date on which possession of the demised promises is required to be surrendered to the condemning authority and Talent shell have no claim against Landlord or the eorkdemking authority for the value of any unexpired term of this Lease. In the event such partial taking or conveyance is not extensive enough to render the promises unsuitable for the business of Tenant, this Lease shall continue in full force and effect except that the Fixed Minimum Rent and the Percentage Rent Gross Sales Base shall each be reduced in the some proportion that the floor area of the demised premises so taken or conveyed bears to such floor area immediately prior to such taking or conveyance, such reduction commencing as of the date Tenant is required to surrender possession of such portion and with respect to the days during which the demised promises are not open for business the calculation of Percentage Rent Mall be adjusted in accordance with Section 2.01(c) hereof. Landlord shall promptly restore the leased promises, to the extent of condemnation proceeds available for such purpose, as nearly as practicable to a condition comparable to their condition as the time of such condemnation loss the portion lost in the taking or conveyance and Tenant shall promptly asks all necessary repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings and shall promptly re-enter the leaned premises and commence doing business in accordance with the provisions of this Lease. For purposes of determining the amount of funds available for restoration of the leased promises from the condemnation award, said amount will be deemed to be that part of the award which remains after payment of Landlord's rewmable expenses incurred in recovering same and of any amounts due to any mortgages of Landlord, and which represents a portion of the total was to available (excluding any award or other compsmaation for land) which is equitable allocable to the loosed promises. SECTION 17.03. Partial Condemnation of SSm Center. (a) Tf-more sin aro-Mid (It3i of me floor area of the buildings of which the demised promises are a part or more than one-third (1/3) of the leasable floor area of the Shopping Center or more than one-third (113) of the Common Areas shall be so taken or conveyed, or (b) if any part of the parking area in the Shopping Center is so taken or conveyed and as a result of such partial taming or conveyance the size, layout or location of the remaining parking facilities will violate the requirements of the applicable zoning or similar law (or any permitted variance or exception thereto), then in any or all such events notwithstanding the fact that the destined promises are not to taken or conveyed, Landlord shall hove the right and power, at its option to be exercised by written notice to Tenant, to terminate this Lease effective either the date title vests in the condemning authority or the dote Landlord is required to deliver possession of the part w taken or convoyedp provided, however, in the event of a taking or conveyance described in clause (b), if Landlord shell take immediate steps towards eliminating such violation, this Lease shall be unaffected and remain in full force and affect. 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 17.00. Landlord's DDameQea. In the wen of army condemnation or taking as hereinbefore provided, whether whole or partial, the Tenant shall not be entitled to any part of the word as damages or otherwise for such condemnation and Landlord and any mortgagee of Landlord are to receive the full amount of such sward as their respective interests may appear. Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any such right or claim to which Tenant might become entitled. SECTION 17.05. Tenant's Damages. AlthoU-9h alldamages in the event of any condemnation are to belong to the Landlord and any mortgagee of Landlord as aforesaid, whether such damages are awarded an full compensation for diminution in. value of the leasehold or to the fee of the leased premises, Tenant shall have the right to the extent that mean shall not diminish the Landlord's or such mortgagee's award to claim and - 21 - recover from the condemning authority, but not from Landlord or such mortgagee, such compensation as may be separately awarded or recoverable by Tenant under the Eminent Domain Code in Tenant's own right for or on account of, and limited solely to, any cost to which Tenant might be put in removing Tenant's merchandise, furniture, fixtures, and equipment. ARTICLE XVIII BANKRUPTCY OR INSOLVENCY SECTION 18.01. Bankruptcy or Insolvency. (a) Ir_at any tine prior to the date herein fixed as the commencement of the term of this Lease or at any time thereafter there shall be filed by or against Tenant in any court pursuant to any statute either of the United States or of any state, a petition in insolvency, or if Tenant makes an assignment 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 for payment of Tenant's obligation, or if any execution or attachment shall be levied upon any of the Tenant's property or the demised premises are taken or occupied or attempted to be taken or occupied by someone other than the Tenant, then this Lease shall at the Landlord's option be cancelled and terminated and, in which event, neither Tenant nor any person claiming through or under Tenant or by virtue of any statute or of an order of any court shall be entitled to possession of the demised premises. (b) If at any time prior to the date herein fixed as the commencement of the term of this Lease or at any ties thereafter there shall be filed 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's property, then this Lease shall at the Landlord's 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 against Tenant under the Bankruptcy Code, Tenant, am debtor and as debtor in possession, end 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 as reasonably compensation for use and occupancy of the Premises an amount equal to all Annual Miniwm Rent and Additional Rent; and to reject or assume this Lease within sixty (60) days of the filing of such petition under the Bankruptcy Code; and to give Landlord at least forty-five (45) days prior written notice of any proceeding relating to any assumption of this Lease; end to give at least thirty (30) days prior written notice of any abandonment of the Premises; 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 consented to the entry of an order by an appropriate United States Bankruptcy Court providing all of the above, waiving notice and hearing of the entry of same; (ii) no default of this Lease by Tenant, either prior to or subsequent to the filing of such a petition, shall be deemed to have been waived unless expressly done so in writing by Landlord; (iii) it is understood and agreed that this is a Lease of real property in a shopping center and of non- residential real property as such a lease is described or referred to in the Bankruptcy Code; (iv) included within and in addition to any other conditions or obligations imposed upon Tenant or its successor in the event of assumption and/or assignment are the cure of any monetary defaults and the reimbursement of pecuniary loss within not more than thirty (30) days of assumption and/or assignment; and the deposit of an additional sum equal to three (3) months' Rent; and the use of the Premises as set forth in the Indenture of this Lease and the quality and/or lines of merchandise of any goods or services required to be offered for sale are unchanged; end the reorganized debtor or assignee of such debtor in possession or of Tenant's trustee demonstrates in writing that it has sufficient background including, but not limited to, substantial retailing experience in shopping centers of comparable size and financial ability to operate a retail establishment out of this Lease; and the Premises, at all times, remains a single store and no physical changes of any kind may be ends to the Premises unless in compliance with the applicable provisions of this Lease. ARTICLE XIX EVENTS OF DEFAULT; LANDLORD'S REMEDIES SECTION 19.01. Events of Default. The fo lowing she constitute Events of Default: (a) If Tenant defaults in the payment of any sum of money (whether Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating Costs, the Utility Charge, Promotion Charge, additional rent or otherwise) when due and such default shall continue for a period of :ore than ten (10) days after the date said payment is due. (b) Except me to acts, defaults, omissions and/or occurrences characterized, defined, denoted, or identified in this Lame as Oeliberste Events of Default, if Tenant defaults in fulfilling any of the other covenants of this Lease on Tenant's part to be performed hereunder and such default _yp_ shall continue for the period within which performance is required to be made by specific provision of this Leese, or, if no such period is provided, fifteen (15) days after the date of written notice from Landlord to Tenant. specifying. the nature of amid default, or, if the default so, specified shall be of such a nature that the awe cannot be reasonably cured or remedied within said fifteen (15) 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. (c) If any execution or attachment shall be issued against Tenant or any of Tenant's property and shall not be discharged or vacated within ten (10) days after the issuance thereof. (d) Any event described in Section 18.01. (e) If Tenant shall abandon the demised premises or if the demised premises shall be permitted to become vacant,' or shall fail to keep the demised premises continuously and uninterruptedly open for business. SECTION 19.02. Deli rate Events of Default. default (1) in the timel?amy the contrary net forth in this Lease, IF Tenant shall y payment of Fixed Ninimom Rent, Percentage Rant, Tax Rant, Tenant's proportionate share of Operating Costs, the Utility Charge, or Promotion Charge or in the timely reporting of Gross Sales or any of them, and any such default shall be repeated two (2) times in any period of twelve (12) months; or (2) in the perforamce of any other eovamant of this Leese more than three (3) time in any period of twelve (12) months, than, notwithstendi" that such defaults shall have been cured within the period after notice as above provided, any further similar default within such twelve (12) month period shall be deemed to be a Deliberate Event of Default. (b) Any default, act, omission or occurrence cheracterized, defined, denoted, or identified elsewhere in this Lease as a Deliberate Event of Default shell also be a Deliberate Event of Default. (c) In the event of a Deliberate Event of Default, Landlord, without giving Tenant any notice and without affording Tenant an opportunity to cure the default (Tenant hereby specifically waiving any right of tender) my exercise any or all of its rights under this Lowe in addition to those it may have at law or in equity. SECTION 19.03. Termination. Upon or • et occurrence of any one or more of such Event of Default or Deliberate Events of Default, if the term shall not have commenced, Landlord say immediately Pascal this Lemma by written notice to Tenant, or if the ten shall have commenced Landlord may serve upon Tenant a written notice that this Lemma 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, Tenant shall have no right to avoid the cancellation or termination by payment of any sum due or by other performance 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 and an fully and completely as if such dote were the day herein definitely fixed for the end and expiration of this Loma and such term, and Tenant shall then quit and surrender the demised premises to Landlord, but notwithstanding any statute, rule of low, or decision of any court to the contrary, Tenant shall remain liable as met forth hereinafter. Notwithstanding Landlord's election to terminate this Loose, Landlord may, at its option, reinstate this Lease at any time thereafter, and a letter free 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 Lomas upon all of its terms and conditions, without any other notice to or from either party to the other. SECTION 19.04. Ri t of Possession. Upon or ¦ tar any one or more Events of Default or Deliberate Events of Defoulti or if the notice provided for above in Section 19.03 hereof shall have been given and this Loo me shall 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 re-enter the demised promises, either by force or otherwise, and/or by summery proceedings or otherwise dispossess Tenant and the legal representative of Tenant or other occupant of the demised promises, and remove their effects and repossess and enjoy the demised premises, together with all alterations, additions and improvements, all without being liable to prosecution or damages therefor. SECTION 19.05. Additional Remedies of Landlord. (a) T? +e evp "&;y--rv-@-nT-of Default, Deliberate Event of Default, re-entry, termination and/or dispossession by summary proceedings or otherwise, in addition to, and not in lieu of, all other remedies which Landlord has under this Lease, at law or in equity: (1) the Fixed Minimum Rent shall become due thereupon and be paid up to the time of such re-entry, dispotseesion and/or expiration; and (2) Landlord say, in its sole discretion, relet the demised promises or any part or parts thereof, either in the name of Landlord or otherwise, for a term which may at Landlord's option be loss then or exceed the period which would otherwise have constituted the balance of the term of this Lease, and may grant concessions or free rant; provided, however, Landlord is expromely under no obligation to relet the demised promises; and (3) Tenant or the legal representative of Tenant shall also pay Landlord, at Landlord's option and whether or not Landlord has terminated or cancelled this Lease, as liquidated damages for the failure of Tenent to observe and perform said Tenant's covenants - 23- herein contained, for each month of the period which would otherwise have constituted the balance of the term, the excess, if any, of the sum of one monthly installment of Fixed Minimum Rent, one-twelfth (1/12th) of the annual average Percentage Rent payable hereunder for the three (3) lease years immediately preceding (or for the entire preceding portion of the term of this Lease if less then three (3) lease years), the monthly portion of the payment of Tax Rent that would have been payable for the period in question but for such re-entry or termination, the Utility Charge payable for such month computed on the basis of the average monthly charge for the said three (3) preceding lease years or entire preceding portion of the term, as the case may be, the monthly payment of Tenant's current proportionate share of Operating Costs, the Promotion Charge computed on a monthly basis over the net amount, if any, of the rents actually collected on account of the lease or leases of the demised premises for such month. The refusal or failure of Landlord to relet the demised premises or any part or parts thereof shall not release or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to the said deficiency such 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 putting and keeping the demiaed premises in good order and costa of preparing the demised premises for reletting as hereinafter provided. Any such liquidated damages shall be paid in monthly installments by Tenant on the day specified in this Lease for the payment of Fixed Minimum Rent and any action brought to collect the amount of deficiency for any month shall not prejudice in any way either the rights of Landlord to collect the deficiency for any subsequent month by a similar proceeding; provided only that such liquidated damages shall be reduced by the amount, if any, of monthly liquidated damages collected by Landlord minus the actual cost (including attorneys' fees and coats) of collecting such monthly liquidated damages. Landlord,- at Landlord's option, may make such alterations, repairs, replacements and/or decorations in the demised premises as Landlord in Landlord's sole judgment considers advisable and necessary for the purpose of reletting the demised premises; and the making of such alterations and/or decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to relet the demised premises, or, in the event that the demised premises are relet, for failure to collect the rent thereof under such reletting. (b) In any of the circumstances mentioned in the foregoing Section 19.05(x) 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 so liable, forthwith to recover against Tenant, as liquidated damages for loss of the bargain and not as a penalty, a sum equal to the Fixed Minimum Rent multiplied by the number of months and fractional month which would have constituted the balance of the term, together with costs and attorneys' fees. (c) In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shell have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedies under this Lease, or now or hereafter existing at law or in equity or by statute. (d) Tenant hereby expressly waives the service of notice of intention to re-enter or to institute legal proceedings to that end and any and all rights 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 Lease or otherwise. The words "re-enter" and "re-entry" as used in this Lease are not restricted to their technical legal meaning. SECTION 19.06. Confession of Judgment. (a) pQ on the occurrence of any Event of Default, or in the event of a Deliberate Event of Default as defined herein, Tenant hereby empowers any Prothonotary or any attorney of any court of record within the United States or elsewhere to appear for Tenant with declaration filed, and confess judgment in favor of Landlord, its successors 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 ettginey!6_fe_e fop_colleotion_pf?he?alne_Af five percent (5X.)_.ef the total amount of such damages, together with costa of suit, and Tenant hereby waives all-errors, defects and imperfections in entering said judgment or in any writ, or process, or proceeding thereon or thereto or in any wise touching or concerning the same; and for the confession and entry of such judgment, this Lease or a true and correct copy thereof shall be sufficient warrant and authority. The authority and power contained herein shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as there is an occurrence of any Event of Default, or in the event of a Deliberate Event of Default as defined 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. (b) When this Lease shall be terminated or cancelled by reason of the breach of any provision hereof, either during the original term of this Lease or any renewal thereof, and also as soon as the term hereby created or any renewal thereof shall have expired, it shall be lawful for any attorney as attorney for Tenant to file an agreement for entering in any court of competent jurisdiction an amicable action and confession of judgment in ejectment against Tenant and all persons claiming under Tenant for the recovery by Landlord of possession of the demised premises, for which this Lease or a true and correct copy thereof shall be his sufficient warrant, whereupon, if Landlord so 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 some shall be terminated and possession remain in or be restored to Tenant, Landlord shall have the right -2q_ upon any subsequent default or defaults, or upon the termination or cancellation of this Lease as hersinbefore set forth, to bring we or more amicable action or actions as herainbefore set forth to recover possession as aforesaid.. SECTION 19.07. Waivers. (a) Toin-=T-expressly waives: (1) The benefit of all laws, now or hereafter ih 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 say hereafter be made regarding any limitation as to the goods upon which, or the time within which, distress is to be made after the removal of goods, and further relieves Landlord of the obligation of proving or identifying such goods, it being the purpose and intent of this provision that all goods of Tenant, whether upon the demised promises or not, shall 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 on execution for rent, damson or otherwise. (4) The right to delay execution on any real estate that may be levied upon to collect any amount which may boom= due under the terms and d:, litions of this Lease and any right to have the same appraised, and Taunt authorizes any Prothonotary or clerk to enter a writ of execution or other process upon Tenant's voluntary waiver and further agrees that said real estate way 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 distrained for rent at anytime after an (7) days from mid distraint without appraisawant and condemnation thereat. (6) The right to three (3) months' notice and/or fifteen (15) or thirty (30) days' notice required under certain circumstances by The Pennsylvania Landlord and Tenant Act of 1951, an awsnded, hereby agreeing that any notice time period as required in this Lase Agreement shall be sufficient in either or any such case. Landlord and Tenant agree that this Section (f) shall only be applicable if the demised premises is situate in Pennsylvania. (b) The parties hereby waive trial by jury in any action, proceeding or counterclaim brought by either party against the other on any matter whatsoever arising out of, or in any way connected with, this Lean, the relationship of Landlord and Tenant created hereby, Tenant's use or occupancy of the Dasised Promises, and/or any claim for injury or damage. In the event Landlord cemmences any action or proceeding for nonpayment of Minimum Rent or any item of additional rent due hereunder, Tenant shall not interpose any counterclaim of any nature or description in any such action or proceeding. The foregoing, however, shall not be construed as a waiver of Tenant's right to assert such claim in a separate action or proceeding instituted by Tenant. ARTICLE XX MISCELLANEOUS SECTION 20.01. Access kL Landlord. Landl-a-R my aMareesonoble time during the term of this Leese enter to inspect the demised premises and/or may show the demised premises and building to others. At any time within one (1) year immediately preceding the expiration of the term of this Laws, Landlord shall have the right to display an the exterior of the demised premises (but not so as to unreasonably obstruct the view thereof or access thereto) the customary "For Rent" sign and during such period Landlord may show the premises and all parts thereof to prospective tenants between the hours of 9:00 A.M. and 9:00 P.M. on any day. Landlord also reserves the right after notice of intention to so enter (except that in the event of an emergency, no notice shall be required) to enter the promises at any time and from time to time to make ouch repairs, additions or alterations as it may dew necessary for the safety, improvement or preservation 'thereof, or of the building in which the demised premises is contained, but Landlord amumes no obligation to do so, and the performance thereof by Landlord shall not constitute a waiver of Tenant's default in failing to perform the men. Landlord shall in no event be liable for any inconvenience, disturbances, loss of business or other damage to Tenant by reason of the performance by Landlord of any work in, upon, above or under the devised promises. If Tenant shall have vacated or deserted the demised promises or, in the event of an emergency, or if in any other instance after Landlord has given notice of Landlord's intention to enter, Tempt or Tenant's employees shall not be personally present to permit an entry into the dsmind promises, then, in any such event, Landlord or its agents or employees may enter the same by the use of force or otherwise without rendering Landlord liable therefor, and without in any manner affecting Tenant's obligations under this Laws. The exercise of any such reserved right by Landlord shall not be deemed an eviction or disturbance of Tenant's use and possession of the promises and shall not render Landlord liable in any manner to Tenant or to any other person, nor shall the ease constitute any grounds for an abatement of any rent hereunder. SECTION 20.02. Holding Over. Should Tenant Md over in possession of the demised premises after the expiration of the term hereof without the execution of a new lease agreement or extension or renewal agreement, Tenant, - 25 - at the option of Landlord, shall be deemed to be occupying the demised premises from month to month, subject to such occupancy being terminated by either party upon at least thirty (30) days' written notice, at the rental, including, but not limited to, Fixed Minimum Rent computed at a rate which is double the Fixed Minimum Rent rate in effect for the last full month of the term of this Lease, Percentage Rent, Tax Rent, Tenant's 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. Successors. All rights, obligations and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal representatives, successors and assigns of the said parties; and, if there shall be more than one tenant, they shall all be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee, legal representative, trustee, receiver, legatee or other personal representative of Tenant unless the assignment to such party has been approved by Landlord in writing as provided in Section 14.01(x) hereof. Any reference to any department store herein shall apply to its successors, replacements or assigns. SECTION 20.04. Quiet En' sent. So long as enan 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, terns and conditions on Tenant's 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 persons lawfully claiming by, through or under Landlord, subject, nevertheless, 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. Waiver. The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver or any subsequent breach of the same or a waiver of any other term, covenant or condition herein contained. The subsequent acceptance by Landlord of rent due hereunder or any or all other monetary obligations of Tenant hereunder, whether or not denoted as rent hereunder, shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to make the particular payment so 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 to have been waived by Landlord, unless such waiver be in writing and executed by Landlord. SECTION 20.06. Custom and Usage. Any law, usage or custom to the contrary notwithstanding, Landlord shall have the right at all times to enforce the covenants and conditions of this Lease in strict accordance with the terms hereof, notwithstanding any conduct or custom on the part of the Landlord in refraining from so doing at any time or 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 not be construed as having created a custom in any way or manner contrary to the specific terms, provisions and covenants of this Lease or as having in any way or manner modified the same. , SECTION 20.07. Accord and Satisfaction. No payment byY-fenant or receipt by Landlord of a lesser amount than any payment of rent or additional rent herein stipulated shall be deemed to be other than on account of the earliest stipulated rent or additional rent then due and payable, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's 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's Covenants. Tenant covenants an ae that i will perform all agreements and observe all covenants herein expressed on its part to be performed and observed and that it will promptly, upon receipt of written notice specifying action desired by Landlord in connection with any such agreement or covenant, comply with such notice; and further, that if Tenant shall not comply with any such notice to the satisfaction of Landlord prior to the date on which such noncompliance would constitute an Event of 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 not be obligated to, 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, as additional rent, any expense incurred by Landlord in taking such action. Notwithstanding the foregoing, Landlord's performance of any or all of Tenant's covenants shall not release Tenant from liability for non-performance. - 26 - SECTION 20.09. Entire Agreement. The Inman uro oase, the Lease Agrenent, the Exhibits and Rider, if any, set forth all the covenants, promises, ogres a to, conditions and understandings between Landlord and tenant concerning the drained premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other then as herein set forth. All prior communications, negotiations, arrangements, representations, agreements and understandings, whether oral, written or both, between the parties hereto, and their representatives, are merged herein and extinguished, this Lease superseding and cancelling the same. Except an herein otherwise provided, no subsequent 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, amendment, change or modification is to be enforced. If any provision contained in any rider hereto is inconsistent with any printed provisions of this Loess, the provision contained in such rider shall supersede amid 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 demand or interpreted to contain, by implication or otherwise, any warranty, representation or agreement an the part of Landlord that any department store or regional or rational chain store or any other merchant shall open for business or occupy or continua to occupy any premises in or adjoining the Shopping Center during the term of this Low& or eny part thereof and Tnnt hereby expressly wives all claim with respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or agreement by Landlord either an a matter of inducement in entering into this Lease or me a condition of this Lease or as a covenant by Landlord. SECTION 20.10. No Par arch Land lo o l, 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. Notices. 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 Laws, until Tenant is notified otherwise in writing, and all notices given to Landlord hereunder shell be in writing and forwarded to it at such address, postage prepaid, by registered or certified mail, return receipt requested, or prepaid by any notionally recognized express 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 mail, return receipt requested, or prepaid by any notionally recognised express or overnight mail delivery service which provides proof of receipt, or by delivery in person and in the event of ¦ delivery in person, the affidavit of the person making such delivery shall be conclusive proof of the delivery and of the date and time of such delivery. All notices shell be deemed to have bon given on the date when deposited in the mail receptacles maintained by the corporation which has been chartered by the United States Government to operate and deliver the mail, deposited with the egress or overnight mail service as aforesaid or, in the case of notices delivered in person to Tenant, whn so delivered. Notices by the Landlord may be given on its behalf by Agent or by any attorney for Landlord or Agent. SECTION 20.12. Captions and Index. The cspan-9-iF9-xmppeering in this Lease are inserted only an ¦ matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections or articles of this Lease nor in any way affect this Lease. SECTION 20.13. Tenant Defined- Use of Pronoun. The wo[-s Tit- ' FF@Il-be-mod and taken to mean each and every person or party mentioned as a Tenant herein, be the same one or more; and, if there shall be more then one tenant, any notice required or permitted by the terms of this Lomas may be given by or to any one thereof, and shall have the some force and effect as if given by or to all thereof. The use of the neuter singular pronoun to refer to Landlord or Tenant shall be demand a proper reference even though Landlord or Tenant may be an 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 Leese apply in. the plural number where there is more than one Landlord or Taosnt and to either corporations, associations, partnerships or individuals, males or females, shall in all instances be assumed as though in each cue fully expressed. SECTION 20.14. Negation __ of Personal _Liability. Notwitta?andinq anything conbin-ad herein to the contrary, Tenant agrees that Landlord shall have no personal liability with respect to any of the provisions of this Lease and Tenant shall look solely to the estate and property of Landlord in the land and buildings comprising the Shopping Center of which the desired premises forma a part for the satisfaction of Tenant's remedies, including, without limitation, the collection of any judgment 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 tern and provisions of this Lease to be observed and/or performed by Landlord, subject, however, to the prior rights of any holder of any Mortgage covering _27- all or part of the Shopping Center, and no other assets of Landlord or any principal of Landlord shall be subject to levy, execution or other judicial process for the satisfaction of Tenant's claim and, in the event Tenant obtains a judgment against Landlord, the judgment docket shall be so noted. This Section shall inure to the benefit of Landlord's successors and assigns and their respective principals. SECTION 20.15. Effect of Governmental Limitation on Rents and Other Char 2g.. In the event that any aw, scclaion, le or regu ion o -any governmental body having ru jurisdiction shall have the effect of limiting for any period of time the amount of rent or other charges payable by Tenant to any amount less than that otherwise provided pursuant to this Lease, the following amounts shall nevertheless be payable by Tenant: (a) 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 thereof expressed in this Lease except that all amounts 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 of such period of limitation, Tenant shall pay to Landlord, on demand but only to the extent 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 (c) for the remaining term of this Lease following the period of limitation, Tenant shall pay to Landlord all 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 limitation. SECTION 20.16. Partial Invalidity; Se grate Covenants. If any ten, covenant or con ition 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 persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby and each term, covenant and condition of this Lease shall be valid 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 so provided. SECTION 20.17. Recordin . Tenan a a not record this Lomas without the written consent of Landlord. If Tenant recpasts, and Landlord consents, the parties shell execute and acknowledge a short form of 'lease for recording purposes which shall be recorded at Tenant's expense. SECTION 20.18. Brokerage Commission. Landlord and Tenant each warrant to the other that neither has been represented by any Broker with regard to this Lease Agreement. Further, Landlord and Tenant each agree to indemnify and hold harmless 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 hen i?f of the parties hereto that if any term, covenant, condition or agreement 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. Perpetuity. If the tern oT this Lease shall not have commenced within three (3) years of the date hereof, then this Lease automatically shell become null and void and both Landlord and Tenant shall be relieved of all obligations hereunder. SECTION 20.21. Choice of Lew This Lease chaff 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 Preparation This Lease is to be deemed to have been prepared jointly by the parties hereto and any uncertainty or ambiguity existing herein, if any, shall not be interpreted against any party, but shall be interpreted according to the application of the rules of interpretation for arm's length agreements. SECTION 20.23. Interlineation Whenever in this Lease any printed portion has been stricken out, whether or not any relative provision has been added,, this Lease shall be construed as if the material so stricken was never included herein and no inference shall be drawn from the material so stricken out which would be - 28 - inconsistent in any way with the construction or interpretation which would be appropriate if such ' material were never contained herein. SECTION 20.24. Submission of Lease to Tenant. THE MISSIM drOJO NC-M-TMANT OF THIS LEASE SHALL HAVE NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF THE DEMISED PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXECUTION THEREOF BY LANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL COPY THEREOF TO TENANT OR ITS REPRESENTATIVE. - 29 - E*M3-T "An 1. Tenant has inspected the premises and agrees to accept the premises in an "as is" condition. Except as provided in the foregoing Lease Agreement, Landlord shall not be required to expend any amount of money or do any other act which might be required to make the demised premises suitable for the use pe=tted in the Lease Agreement. 2. Tenant covenants to submit its plans and specifications to Landlord for Landlord's approval, prior to the con enoement of this lease. 3. Tenant covenants to submit its interior store layout to Landlord for Landlord's approval and Landlord's requirements as to Tenant's mandatory remodeling prior to the co m mx:enent of this lease. 4. Tenant shall also be required to attain all necessary approvals and permits from state and local governing authorities and including a Certificate of Occupancy, as required. 5. Mandatory remodeling Requirements: If the store has not been re odeled within the last three (3) years, then the following requirements will apply. If the store has been remodeled within the past three (3) years, remodeling requirements will be enforced at Landlord's option. Mandatory remodeling requirements Include: A) Storefront - landlord does encourage pop- outs of storefronts, and/or sign band area. No more than 506 of storefront to be open. Minimal store- front remodeling requirements would include all new finishes, materials and signag e. S) HM unit - If unit is more than ten (10) years old, Landlord will require a written statement from a bonafide MW Contractor that the unit has been inspected in all phases of operation and is in good working condition. C) Electrical - Must meet all National Electric Codes and Landlord Requirements: Landlord does not Permit: a) Exposed light source in public or sales area. b) Ronpx - All wiring mist be in conduit. D) Ceiling Tile - Landlord recc coeds the use of 2' x 2' ceiling tile. E) Compliance with all applicable items in the Tenant Criteria Handbook. 6. Tenant shall prc ptly ommamwe and thereafter diligently proceed with and omplete the remodeling of the demised premises within sixty (60) days after the appswal of such plans and specifications. if Tenant stall neglect, fail or refuse to cunmence its work as aforesaid or thereafter neglects, fails or refuses to diligently proceed with and. complete its work, the Landlord, in addition to other rights or remedies it may have and alter fiIIII1 (15) days notice to Tenant, may (a) complete Tenant's remodeling work at Ta ant's expense and thereupon the Rental doomanoement Date stall occur and all of Tenant's payment ebligatians pursuant thereto will o=mens, (b) cause the Rental Dmmmosoent Data to occur and all of Tenant's payment cbligations pursuant thexsto to commasoe, rA*Athstwd ng the iraoapletdan of Tenant's remdeling work, or (c) declare the Lease cancelled and of no further force and effect. 7. Any mechanic's lien filed against the deadeed premises or the Shopping Center for work clammed to have been done or for materials claimed to have been furnished to Tenant shall be discharged within twenty (20) days after filing by bonding or as provided or required by law or in any other lawful manner. 8. Tenant shall be responsible for the removal of any abandoned rooftop equipment and patching the roof within the dmised peaches. As-ls/Leases EXHIBIT "C" UTILITY SCHEDULE RATE. 1. Utility Services shall be furnished to individual tenants as needed. Tenant agrees to use and pay for utility service supplied by Landlord as additional rent under the Lease on a monthly basis. Landlord may estimate such periodic billings and confirm and/or adjust same on a leas frequent basis. Charges for utility service shell be in accordance with Tenant's use category as if Tenant were serviced directly by the local public utility or municipal authority then supplying utility ser- vice to the Shopping Center (the "tariff") and any supplements thereto or any tariffs issued to super- sede said tariff, which may hereafter be filed, and Tenant shall also pay any taxes, surcharges, impositions, penalties or other additional charges applicable to the utility service used by it which are not included in the aforesaid rate and tariff, 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 service. 2. Notwithstanding anything contained herein to the contrary, in the event that the rate which would be charged by a public utility for equivalent amounts of service becomes insufficient to compensate Landlord for the reasonable costs OF supplying utilities to Tenant, then Landlord shall be entitled to charge Tenant an amount equal to the actual cost of supplying the utility service, together with an amount not to exceed 15% of each utility bill. 3. In no event shall Landlord be liable for the quality, quantity, failure or interruption of any utility service to the demised promisee. A. The Landlord may, at its option, install an Energy Management System to efficiently con- serve utility usage. Tenant agrees to pay a monthly charge of $50.00 as Tenant's share of the Energy Management System purchase, installment, maintenance and upgrade costa. Tenant shall remit this charge, which will be separately identified in the original invoice, as part of the Tenant's regular monthly utility payment. ELECTRIC SERVICE. Electric energy supplied hereunder by Landlord shall be nominally sixty-cycle, unregulated alternating current, in the form of 3 phase, A wires, and of a voltage designated by Landlord. Installation of Tenant's electric facilities shall be in conformity with the Leese, the National Electric Code and the requirements of the public utility or municipal authority then furnishing electricity to the Shopping Center. If Tenant is replacing a prior tenant in the demised premises, Landlord will charge the new Tenant a $150.DD 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 terms, conditions or obligations or violates any of the covenants set Forth in the Lease beyond the grace period set Forth in the Lease. APPLICATION FOR UTILITY SERVICE. Tenant shall make application for utility service to Landlord, in accordance with rules and regulations set forth in Landlord's Utility booklet, where such service is supplied by Landlord. i AMENDMENT OF LEASE ) THIS AMENDMENT OF LEASE, made on this ///#tday of 1998, by CROlArN AMERICAN PROPERTIES, L.P., a Delaware Limited Partnership, by Crown American Realty Trust, as General Partner, with its offices located at Pasquerilla Plaza, Johnstown, Pennsylvania 15907 (hereinafter called "Landlord"), and DAVID ROBINSON AND LINDA ROBINSON, Husband and Wife, trading as THE KOFEE GRINDER with an address at 37 Second Street, York Haven, Pennsylvania 17370, (hereinafter called "Tenant"), WITNESSETH: WHEREAS, by Indenture of Lease and Lease Agreement dated May 26, 1993, Crown American Corporation, predecessor-in-interest to Landlord, leased and demised to Tenant a certain store premises, No. 638, located in the Capital City Mall, 3506 Capital Mall Drive, Camp Hill, Pennsylvania (hereinafter referred to as the "Lease"); and WHEREAS, Landlord and Tenant wish to amend the Lease in the manner and to the extent as hereinafter provided. NOW, THEREFORE, in consideration of the premises and mutual promises herein set forth, Landlord and Tenant agree that the Lease be and is amended in the following manner: 1. Leased Premises. (Paragraph A of the Indenture) shall be deleted in its entirety and restated as follows: "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 Mall Drive, Camp Hill, Pennsylvania, (hereinafter referred to as the'Center', 'Shopping Center' or'entire premises' and initially comprising the area shown in Exhibit V), the demised premises being measured and described by the following dimensions which are measured from the outside building lines of each wall 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: (Room 4638) Front: Thirty-One Feet (31') Depth: Seventeen Fee[, Four Inches (17'4") Total Area: Five Hundred Thirty-Seven (537) Square Feet 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'), and to such rules and regulations for the use thereof as may be prescribed from time to time by the Landlord." 2. Term. (Paragraph B of the Indenture) The term of the Lease shall be extended for a period of ---seven-- (7) years beginning on the "commencement date" as established by Section 1.01(a) of the Lease; provided, however, Tenant's fixed minimum rental and other charges will commence on July 8, 1998, whether Tenant is open for business or not. 3. Fixed Minimum Rent. (Paragraph C of the Indenture) Tenant shall pay to Landlord a guaranteed annual minimum rent ("Fixed Minimum Rent") as follows: The Fixed Minimum Rent for each of the following periods during the term of this Amendment of Lease shall be: Time Period Annual Amount Monthly Amount Years I - 2 $23,000.00 $1,916.67 Years 3 - 4 S26,500.00 $2,208.33 Years 5 - 7 $31,000.00 $2,583.33 Each such installment shall be due and payable on or before the first day of each calendar month in the term of this Amendment of 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 tern of this Amendment of Lease shall 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). In the event that a division of The May Department Stores Company, currently Hecht's, ceases to operate at the Shopping Center, Tenant's then applicable Fixed Minimum Rent and Percentage Rent Gross Sales Base shall each be decreased by ten percent (10°/n), hereinafter referred to as "Tenant's Rent Reduction": (a) Notwithstanding anything set forth herein to the contrary, Tenant's Rent Reduction shall be in addition to, and not in lieu of: the minimum payment on account of Tenant's proportionate share of the Operating Costs as set forth in Paragraph "F" of the Indenture, the estimated payment on account of Tenant's proportionate share of Taxes as set forth in Paragraph "r' of the Indenture, the Marketing Fund/Advertising assessments as set forth in Paragraph " T' of the Indenture, the Proportionate Cost of Security as set forth in Paragraph K of the Indenture, and any other charges due and payable under the terms of this Lease. (b) Tenant's Rent Reduction shall continue until the earlier to occur of: (i) Landlord has executed a lease, sublease, assignment or other instrument for a replacement tenant to occupy under a single trade name at least eighty percent (80°/") of the space Hecht's vacated; or (ii) Tenant is in default under this Lease beyond any applicable cure period (c) Upon the occurrence of either event provided in subparagraph (b) above: (i) Tenant's payments of Fixed Minimum Rent, Percentage Rent, Operating Costs, Taxes, Marketing Fund/Advertising assessments, Tenant's Proportionate Cost of Security, and all other items of additional Rent shall be in accordance. with the amounts set forth in the Indenture of Lease. 4. Percentage Rent. (Paragraph D of the Indenture) In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accordance with Section 2.01 of the Lease, shall pay to Landlord, as additional rent hereunder (hereinafter referred to as "Percentage Rent"), and as part of the consideration of the aforesaid demise, for each lease year in the tern of this Amendment of Lease a sum equal to six percent (6"/0) 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 Gross Sales Base for the following periods within each lease year shall be: Time Period Years 1.- 2 Years 3 - 4 Years 5- 7 Percentage Rent Gross Sales Base $383,333.00 $441,666.67 $516,666.67 -2- 11. Negation of Personal Liability. (Section 20.14 of the Lease) shall be amended by adding the following paragraph to the end thereof: "The references to 'Landlord' in this Lease shall be limited to mean and include only the owner of the Shopping Center of which the Premises forms a part In the event of a sale or transfer of such interest (except a Mortgage or other transfer as security for a debt), the 'Landlord' initially named herein, or in the case of a subsequent transfer, the transferor, as of the date of such transfer, shall be automatically released from all liability for the performance or observance of any term, condition, covenant or obligation required to be performed or observed by Landlord hereunder; and the transferee shall be deemed to have assumed all of such terns, conditions, covenants and obligations except as to pre-existing defaults by Landlord. The covenants and obligations contained in this Lease to be performed on the par[ of 'Landlord' shall be binding on the Landlord or any transferor only during the periods in which it is a Landlord hereunder. The name and designation Crown American Realty Trust is the name of the Trust and the collective designation of the Trustees from time to time under the Declaration of Trust, amended and restated as of August 6, 1993, and as 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 Realty Trust, as neither the Trustees, officers, agents or shareholders of the Crown American Realty Trust assume any personal liability for obligations entered into by the Crown American Realty Trust by reason of their status as said Trustee, officer, agent or shareholder." 12. Exhibit "A" to the Lease is hereby deleted in its entirety and replaced by the Exhibit "A" attached to this Amendment of Lease and incorporated herein. 13. Exhibit "B" to the Lease is hereby deleted in its entirety and replaced by the Exhibit "B" attached to this Amendment of Lease and incorporated herein. 14. Except as expressly amended herein, the Lease is hereby ratified and confirmed and the terns, conditions, agreements, obligations and provisions thereof are incorporated hereby as if fully set forth herein and the same shall continue in full force and effect. 15. This Amendment of Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, administrators, representatives, successors and, to the extent permitted by the terms of the Lease, their assignees. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this Amendment of Lease to be duly executed the day and year first above written. (Corporate Seal) CROWN AMERICAN PROPERTIES, L.P., A DELAWARE LIMITED P RSHIP, BY: CROWN AMERI TY TRUST, AS GENERAL PARTNA ATTEST: j By: Ronald P. Rusinak, Secretary Tom Sy hensou tecutive Vice President ROBINSON AND LINDA ROBINSON, ND 4 WIFE_TJA rTHE KOFEE GRINDER WITNESS: c (SEAL) WITNESS: Robinson (SEAL) CCM-KOFEE AMND -4- CAPITAL CITY MALL Camp Hill, PA EXHIBIT "A" (SATELLITE TENANTS "AS IS" 1 ReNslon Date: August 28, 1996 1. Tenant has inspected the premises and agrees to accept the premises in an "as is" condition. Except as provided in the foregoing Lease Agreement, landlord shall not be inquired expend any amount of money or do any other act which might be inquired to make the demised premises suitable for the use permitted in the Lease Agreement. 2. Tenant's Plans and Specifications: A. Complete professionally prepared working drawings and specifications shall be submitted for review and/or approval by Landlord within thirty (30) days after the Landlord provides the tenant with a criteria package for the demised space. B. Drawings and specifications shall be prepared and arranged in four (4) categories as applicable: Architectural, HN.A.C., Plumbing and Electrical. The practice of combining two or more groups onto one plan should be avoided. Each group shall be clearly designated. Plans shall be drawn at 1 /8" scale or larger, on a standard paper size no larger than 30" x 42" throughout. All drawing submissions shall include properly completed Landlord Construction Standards (LCS) Drawings (set of LCS Drawings are part of Tenant Criteria Package). C. During all phases of plan development and prior to bidding or commencing of construction, the tenant shall make a physical on-site inspection of the demised space and verify conditions, dimensions etc. of the demised space. Failure to do so shall be at the risk and sole expense of the tenant. D. 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. Stores Under 5,000 Sq. Ft ........................... $ Stores Over 5,000 Sq. Ft ............... ........ $ 1,000 Restaurants ............ - I ................. $ 1,200 upon approval of plans. All fees are payable to Crown American Pagc 1 3. Compliance: Tenant shalt be required to attain all necessary approvals and permits from state and local governing authorities including a final 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. 4. Mandatory Remodeling Requirements: If the store has not been remodeled within the last three (3) years, the following requirements will apply. If the store has been remodeled within the past three (3) years, remodeling requirements will be enforced at landlord's option. Mandatory Remodeling Requirements Include: A. Storefront - Landlord does encourage pop-outs of storefronts, and/or sign band area. Final pop-out limitations shall be determined by the Landlord. No more than 50% of storefront to be open to the mall common area. Minimal storefront remodeling requirements would include all new finishes, materials, and signage. B. HVAC Unit - If unit is more than ten (10) years old, Landlord will require a written statement from a bonafide HVAC Contractor that the unit has been inspected in all phases of operation and is in good working condition. C. All electrical work shall comply with the latest National Electrical Code (N.E.C.), and all Federal, State and Local Codes. Landlord does not Permit: 1. Exposed light source in public or sales area. 2. Romex - All wiring must be in conduit. D. Ceiling Tile - Landlord recommends the use of a 2'x 2' ceiling tile pattern. E. 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, tenants agents, tenant's architect and/or engineer, and tenant's contractor(s) and/or subcontractor(s) are responsible to comply with all Landlord requirements and specifications. 5. Tenant's Construction/Remodel Work: Tenant shall promptly commence and thereafter diligently proceed with and complete the remodeling of the demised premises within sixty (60) days after the approval of such plans and specifications. If Tenant shall neglect, fail or refuse to commence its work as aforesaid or thereafter neglects, fails or refuses to diligently proceed with and complete its work, the Landlord, in addition to other rights or remedies it may have and after fifteen (15) days notice to Tenant, may (a) complete Tenant's remodeling work at Tenant's expense and thereupon the Rental Commencement Date shall occur and all of Tenant's payment obligations pursuant thereto will commence, (b) cause the Rental commencement Date to occur and all of Tenant's payment obligations pursuant thereto to commence, notwithstanding the incompletion of Tenant's remodeling work, or (c) declare the Lease canceled and of no further force and effect. Page 2 A. Tenant's progress and workmanship is subject to Landlord's inspection and approval. Any violation involving the Tenant's store construction shall be corrected and made acceptable to the Landlord, at the Tenants sole responsibility and cost. Tenant's failure 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 billed to the tenant as additional rent under the terms and conditions of the lease. B. Tenant shall perform and cause tenant's contractor(s) and subcontractor(s) to perform all tenant's work in a manner so as not to damage, delay or interfere with the prosecution or completion of any work being performed by the Landlord or the Landlord's contractor(s) in the demised space or in or about any other portion of the Shopping Center, or to comply with all construction procedures and regulations prescribed in, or pursuant to, this Exhibit "A" for the execution of the tenants work and the coordination of such work with work being performed by the Landlord or by the Landlord's contractor(s). 1. Landlord, in its sole discretion, and for any reason, shall have the right to order tenant to terminate any construction work being performed by or on behalf of tenant in the demised premises. Upon notification from Landlord to tenant to cease any such work, tenant shall forthwith remove from the demised premises all agents, employees and contractors of the tenants performing such work until such time as Landlord shall have given its consent for the resumption of such construction work and tenant shall have no claim for damage of any nature whatsoever against Landlord in connection therewith. 2. Should tenant fail to comply with the rules and regulations established by Landlord or its contractors in any union contract to which Landlord, its contractors or any subcontractor may be a party. Landlord shall have the option either to cancel the lease agreement or to compel tenant immediately to suspend the work being performed. 3. All work must be performed by bonafide licenses contractor(s) and conform with all applicable laws, rules, regulations, specification, codes, and standards. 6. Insurance: Tenant is responsible to furnish the landlord with evidence of general liability and property damages insurance coverage for the tenant's contractor(s) and/or sub- contractor(s) prior to the start of any construction within the demised space. General liability insurance shall be a combined single limit of one million dollars ($1,000,000.00). Tenant shall indemnify and hold harmless the Landlord from and against any claims, action or damages resulting from the acts or neglects of the subcontractor(s) in the performance of the tenant's work. 7. Notification: Tenant shall notify the Landlord a minimum of one (I) week prior to moving onto the job to commence construction. Tenant must also check in with the mall manger and present him/her with a set of approved plan along with the building permit number (where applicable). 8. Service Charges: The following services will be handled directly by the Mall Management office with a(( associated costs invoiced to the tenants contractor(s), unless directed otherwise by the tenant in writing to the Management office. Page 3 A. Trash dumpster will be provided and handled for the demised space up to the tenant's opening date. Landlord will locate a construction dumpster. The tenant's contractor(s) or subcontractor(s) are responsible to place all rubbish, construction trash and surplus material in the dumpster. The tenant or its contractor(s) is cautioned against having trash accumulated within the demised space. Should this develop, Landlord will remove the trash and charge the tenant for all costs. B. Temporary electrical service as necessary will be provided under the following conditions: 1. Termination of this service is at Landlord's sole discretion. 2. Landlord is not responsible for interruption of this service. 3. One (1) hook-up is provided for the demised space. C. Roof work and retlashing for H.V.A.C. equipment, plumbing vents, penetrations, etc., shall be provided by the Landlord's roofing contractor only (as per Landlord construction standard drawings). Tenant shall be responsible for the removal of any abandoned rooftop equipment within the demised premises. D. Sprinkler system modification with respect to the tenant design and specifications will be performed by the landlords Sprinkler contractor, in compliance with N.F.P.A. Regulations and Landlord's Insurance Co. 9. Waiver of Liens: A. Tenant agrees to enter into Waiver of Liens Agreements or Waiver of Rights to file Lien contract with any of its contractors, subcontractors, materialmen, or other persons furnishing services, labor or materials concerning, in any way, work to be completed in part, or while, in connection with tenant's work and provide Landlord with copies of same. B. Any mechanic`s lien filed against the demised premises or the Shopping Center for work claimed to have been done or for materials claimed to have been furnished to Tenant shall be discharged within twenty (20) 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 (Paragraphs 9, A & B) shall be deemed an event of default. 10. 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 (10) working days after completion of tenant's work, the tenant or tenant's architect shall deliver to Landlord a certification that none of the materials used in the completion of tenant's work contains hazardous/or carcinogenic producing materials. 11. H.V.A.C. Maintenance: Within ninety (90) days of tenant's opening for business, tenant is required to place in force and keep in force for the full term of the lepse agreement a maintenance agreement, with a reputable licensed 'company, for the service, repair and maintenance of all the tenant's H.V.A_C. unit(s) providing service to the demised space. The agreement shall provide for but not be limited to at least four (4) inspection and services each year and a minimum of eight (8) filter changes each year. A copy of the agreement must be delivered to the Landlord. Page 4 12. After Tenant opens for business, Landlord will be responsible for removing Tenant's trash, excluding grease trap residue, from the rear of the demised space to a compactor and/or holding bin(s). Tenant shall contact mall management office prior to opening for business to make all necessary arrangements for trash removal. Tenant is responsible to separate dry trash from wet and suitably bag and/or containerize same as directed by the Landlord. A charge for removal will be levied on the Tenant based on a fixed fee, subject to periodic escalation, comparable to existing local rates. Page 5 i 717 737 0607 STATEMENT M NChacIt Payee. To To: PR CAPITAL CITY LIMITED PARTNERSHIP PO BOX 02405 CLEVELAND 014 16193 David 6 UWa Rohemn 808 Cae Jay Dina ENers PA 17319 FOR INQUIRIES CALL: Judo VagaTEL- 717-737-0275 a FAX 717-7374EW 12:13:44 p.m. 05-03-2006 Dda - 513@005 Acwllnl- 72DDW Stat lNo - 111494 Page- 1 Fmm: CAPITAL CITY MALL 3508 CAPITAL CITY MALL DR CAMP HILL PA 17011-7003 Tenant The Kofm GhnAar Amount RamMa& RemKtop Poftn oath Payment. 2 /3 DETAIL CHARGE Capital City Mall The Ke1M Gd9tlW Lease 0000,1032 Involw Dab Descl"on Chrges PwFMIs Balance CMCk Numee 1!12001 Balance Forward .00 9112005 MINIMUM RENT 2,583.33 2,58333 3/12835 CAM ESCROW 288.29 (4135) 24&04 8030 012083 ADVERTISING 43AI 43AI 912005 Marketing FUn 43A1 43AI 1112083 MINIMUM RENT 2,SW33 2,58333 1112005 REAL ESTATE TAXES 9621 9831 1112083 Ewryy Manegeneem Fee 80.00 50.00 11120D5 CAM ESCROW 28829 28820 11112005 Security 29AO 20AD 11120D5 ADVERTISING 43A7 43A7 1112005 Ma"&V Fun 43A1 (.40) 43.01 8140 11012005 Seear 40.68 4089 122820&5 2004 Exam RE Tax (30&97) (309.91) 111/2838 MINIMUM RENT 2,58333 2.583.33 112008 REALESTATETAXES 9621 0621 1!12008 Er gy Nh nagemam Fee 5D.00 50.00 1f1290B CAM ESCROW 288.20 28929 1112083 Seglr9y 20.40 29.40 11112008 ADVERTISING 43.41 43A7 1!112008 Ni rkeMg FUn 43.41 43A1 119128!16 FJackic 26&74 26&74 1192838 Side Tax 15.18 16.18 11282006 ADVERTISING 15.72 15.72 12812006 M.WAIng Fun 15.72 15.72 11312006 Eledre 19&87 190.97 11312006 slaw Tax 11.45 11A5 2/92008 Wavle Dlaposal 357,12 357.12 2/1/2908 MINIMUM RENT 2.583.33 (1381.86) 1,28187 01 2112008 REAL ESTATE TAXES 9621 (48.11) 48.10 01 2012008 Energy Manapamrd Fr 50.00 (25-00) - 25.00 01 2112836 CAM ESCROW 29829 (144.15) 144.14 01 2112006 Sea," 29.40 (14.70) 14.70 01 2112006 ADVERTISING 46.07 (23.01) 2382 Di 2112083 MwkWM Feed 41119 (40.70) 524 Kellen Grividerspraw 3112006 Electric 18858 15880 3212006 Side Tax SAO BAD Exhibit B a 717 737 0607 12:13:58 p.m. 05-03-2006 313 31132506 Saw STATEMENT 40.86 Date- 513/2/108 A=ml- 720050 9taNmnl N9- 111494 Page- 2 40.68 PAYMENTS SECTION GIL Date Description Payments Check Number Remark Balance 22318101 Papranl Reed - Thank You 3,11638 7395 3,11858 212312004 Permanl Reed-Thank YW 24.80 7386 3,140.98 2/28/2004 Psymml Recd - Thank You 81.98 7374 3,202.06 2/2812000 Payment Redd - Thank You 22733 7374 3,43029 2262504 Popham Reed-Thank YOU 3,11638 7374 8,54887 32420D4 PakmmlReed-ThankYW 175.03 7415 8,721.70 411512004 Paymml Recd-Thank You 3,29997 7427 10,02157 &4Y(OD4 Payment Reed - Thank You 3,325.19 7490 13,347.56 7112/2004 Paymanl Reed-Thank You 3.51330 7504 16,880.88 81182D04 Payment Recd-Thank You 3,500.91 7527 20,4B1.77 9ROYLD04 Payment Reed - Thank You 3,11638 7552 23,578.15 10182004 Payment Reed-ThankYW 3,43539 7607 27,013.93 111192004 Ps"M Reed-Thank You 3,515.05 7656 50,W&W 12212004 Payment Redd-Thank You 3.305A9 7708 33,834.87 11182005 Payment Reed-Thank You 3,330.15 7741 37,164.82 2J172005 Payment Reed-Thank You 3,352A2 7788 40,517.74 31112005 Paymwd RWV-Thw*YW 3.211.08 7805 43,728.82 3232005 Payment Reed - Thank You 21055 7919 43,93937 4/12505 Payment Rend - Thank YOU 3.116.38 7823 47,055.75 5M82605 Payment Real-Thank You 3.144.07 7904 50,199.83 81152005 Payment Reed-Thank You 3,134.05 7925 53.333.87 BM82005 Payment Reed-Thank YOU 3,6W.T7 7967 56,934.84 11/72005 Payment Re0d-ThWkYW 3,555.11 8030 60,489.75 12MZ2005 Payment Reed - Thank You 458.46 8058 50.946.21 10122005 Payment Raed - Thank You 3,134AS 8089 64,080.65 12MVMM Payment Reed-Thank YW 283.82 8095 54384.48 12/792005 Payment Recd-Thank YOU 3,581,58 6097 67,948.08 11172000 Payment Reed-Thank You 3,134.45 8140 71,080.51 12282003 Payment Reed-Thank YW 959- 730133 71,071.02 2/182008 Payment Reed - Thank You 328.92 8164 71,399.84 ACCOUNT SUMMARY ACCOUNTAGING Current 1-30 Balance Prior TO 111203 .00 Plus Charges From 1/12503 13,183.10 less paynlarss/ CraAh Fmm 1/12503 X1.828.17) AMOUNT DUE: 11!53.93 31-60 61-60 81-120 Owes 120 4D.56 52320 2,07158 8.918.50 V The Kofee Grinder UNSWORN VERIFICATION UNDER 18 PA.C.S. 44904 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 CAPITAL CITY LIMITED PARTNERSHIP Dated: q k `t 2006 By: De ra Lambert Vice President - Legal Services and Corporate Affairs 10 J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, Defendants. CIVIL DIVISION No. NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY TO: DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER Please take notice that a judgment for money in the amount of $12,151.13 has been entered against you by confession on the date below in favor of the Plaintiff. Date:. Pro onotaryfCo of C on Pleas of Cumberland Co ty David Robinsm and Linda Robinson tla The Kofee Grinder VERIFICATION The undersigned does hereby verify subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that the parties against whom Judgment is to be entered according to the Complaint attached are not active members of the Armed Forces of the United States or any other military or non-military service covered by the Servicemembers Civil Relief Act, as amended, December, 2003 ("SCRA"). The undersigned further states that if said parties are engaged in military or non-military service, as defined within the SCRA, the undersigned is without receipt of or knowledge of an Application for Relief as required by the SCRA. The undersigned further states that the information is true and correct to the best of the undersigned's knowledge and belief and upon information received from others. Date: 4//0(0 Donald L. Smith, General Manager Capital City Mall v? ?? ll^VVI'"/ l l9. ? P W G ? v s ? FT.. Y ,t ?y=CJl ??j{ v "? IN TFlE C(J.1.'LL.. ?SE•(_'`rt1, 0.` .. "E4. S PR CkP: 4-.L CITY LIMITED PAFT ?? F_S::IP, Plaintiff, C7717, , ACTION - LAW No. 06=_'584 V. DAVID ROBINSON and LINDA ROBINSON b'a THE KOFEE GRINDER, AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S.Lubrow PA ID No. 43523 Raeann B. Traficante Pa. I.D. No. 85515 MARCUS & SHAPIRA, LLP Firm No 145 One Oxford Centre, 35'" Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. 06-2584 V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, Defendants. AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS I, Raeann Traficante, being duly sworn according to law, hereby certify that: 1. I served upon Linda Robinson t/a The Kofee Grinder, Defendant in the within action, an original Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights by United States Certified Mail, Return Receipt Requested on the 18th day of May, 2006. A true and correct copy of said Notice is attached hereto as Exhibit A; and 2. Attached hereto as Exhibit B is the original certified return receipt issued by the United States Post Office, providing proof of service of the Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights on May 25, 2006. Raeann B. Traficante MARCUS & SHAPIRA LLP 35a' Floor, One Oxford Centre 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Sworn to and subscribed before me this Z day of June, 2006., , n Notary Public My Commission Expires: COMMONWEALTH OF PENNSYLVANIA Notarial Seal Laurie B. Miller, N;.ary Public MyCity of Piltsbu Allegheny County Commission irpires Jan. 28, 2068 Member, Pennsylvania Association of Notaries IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, ) CIVIL DIVISION Plaintiff, ) No. 06-2584 V. ) ) DAVID ROBINSON and LINDA ROBINSON ) t/a THE KOFEE GRINDER, ) Defoodams. ) NOTICE UNDER RULE 2458.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: LINDA ROBINSON t1a THE KOFEE GRINDER A judgment in the amount of $12,151.13 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service 4`s Floor, Cumberland County Courthouse Carlisle, PA 17013 Exhibit A May M, 2006 !`u-° - •-_ 7nn/o.-tom. e Stephen S. Zubrow Pa. I.D. No. 43523 Raeann B. Traficante Pa. I.D. No. 85515 MARCUS. & SHAPIRA, LLP One Oxford Centre, 35'h Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Attorneys for Plaintiff, PR Capital City Limited' Partnership ¦ Complets Items 1, 2, and 3. Also complete item 4 It ReetrIcW Delivery is deelred. ¦ Prim your name and address on the reverse so that we can return the card to you. ¦ Attach: this card to the beck of the maliplece; or on the front If apace permits. 1. Ar" ?r-irrde,- 6e)6 Et xrs, ? 73 ?9 X W 3 IL RW*MI by (PFEli Nrnsl I C. sea Is d*.Wy aft"Wkred from awn 1? U W H ym wrier d*my addraes telex' ? No VCwdW Mss 0 t3rprsea Mel u 0 Rapdwed O Rwurn Rsoalpt for March 13 Inwrad Mel 0 C.O.D. 4. ResftW Delivery? IEzea Fee) Cl Nae 2' MNU* ftm..aaMda4tpap 7005 1160 0003 5843 8618 flsawrar aam P$ Font 3011. Febnlry 21104. Damaallo tern Rwrralpt w00ee4e411•tow Exhibit B The unde.slgned hereb',- i:.at a true anu c0^-, of the fore-2 L^g- A El; avi" of Service of Notice Under Rule 295£;.1 o"Judgment and E ecu:ion Thereon, Notice of Defendants' Rights was served upon the following by United States mail, first class service, postage prepaid, this day of June, 20W Linda Robinson Kofee Grinder 606 Cee Jay Drive Etters, PA 17319 Raeann Traficante? c? -Ti n-? :, - rrrn TN THE COUR:f OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL ACTION - LAW No. 06-2584 V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS Filed on Behalf of the Plaintiff, PR Capital City Limited Partnership Counsel of Record for this Party: Stephen S. Zubrow PA ID No. 43523 Raeann B. Traficante Pa. I.D. No. 85515 MARCUS & SHAPIRA., LLP Firm No. 145 One Oxford Centre, 35`x' Floot 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, CIVIL DIVISION No. 06-2584 V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, Defendants. AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON, NOTICE OF DEFENDANT'S RIGHTS I, Raeann Traficante, being duly sworn according to law, hereby certify that: I served upon David Robinson t/a The Kofee Grinder, Defendant in the within action, an original Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights by United States Certified Mail, Return Receipt Requested on the 18th day of May, 2006. A true and correct copy of said Notice is attached hereto as Exhibit A; and 2. Attached hereto as Exhibit B is the original certified return receipt issued by the United States Post Office, providing proof of service of the Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights on May 18, 2006. Raeann B. Trafic to MARCUS & SHAPIRA LLP 35`h Floor, One Oxford Centre 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Sworn to and subscribed before me this °_ day of June, 2006. ??i t-' v 4otary Public My Commission Expires: C0,,41vIONWEALIPI OF PENNSYLV,W,,,. Notarial Seal Laurie B. Miller, N%ry Public City of Pittsbuur?It Allegheny County MY Commissioupires Jan. 28, 2008 Member. Pennsylvania Association of Notaries IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, vV. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER, Defendants. CIVIL DIVISION No. 06-2584 NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRINDER A judgment in the amount of $12,151.13 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVEA LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service 4"' Floor, Cumberland County Courthouse Carlisle, PA 17013 Exhibit A May If, 2006 I-- - f- ? Stephen S. Zubrow Pa. I.D. No. 43523 Raeann B. Traficante Pa. I.D. No. 85515 MARCUS & SHAPIRS, LLP One Oxford Centre, 35'' F'Ioor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Attorneys for Plaintiff, PR Capital City Limited Partnership ¦ I Complete Items 1, 2, VN s. Also complete A. Item 4 It Rdstrkkstf DoNvery is dealred. X • 1M ylwrtianp and address on the reverse so that we can return the card to you. ¦ Attach We card to the beck of the mallplow, or on the froM N space penults. 1. Article Addressed to: u, rda Ra b? hso Koff'ee.C-???r?der Loo(o Qee_zoy "wcw e, L Ir& tAk-VTt f YA 1 -1 ?) I j O Aperd Is" wy addeee amisrR ham sar i? lnYw If M, wdw do" address below: O No Ceram Mall 0 agasee Moll Rapistered 0 Ratum RvcW for Mwdwxboo 4. Ratio d Dellvwyl Pa Fea/ 0 yes 2. ArddeNMbw 7004 2890 0002 3811 0650 Mornfer Aom nn*o AW PS Form 9011, Fshnry XM Da wft Reran flow to n42-WIsw Exhibit B CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendants' Rights was served upon the following by United States mail, first class service, postage prepaid, this ql? day of May, 2006: David & Linda Robinson Kofee Grinder 606 Cee Jay Drive Etters, PA 17319 Raeann Traficante '"? _ _ - -o a' - t , ', OG'o2584 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: PR Capital City Limited Partnership VS. David Robinson and Linda Robinson t/a Koffee Grinder CERTIFICATE OF SERVICE I hereby certify that on or before the date of filing the following documents(s): Answers to Interrogatories in Attachment, Writ of Execution, Notice of Writ of Execution, Claim for Exemption Order and Claim for Exemption I have served a copy thereof on each of the following persons in the manner indicated below: Service by first class mail addressed as follows: Reann Traficante, Esquire Marcus & Shapira, LLP One Oxford Centre, 35`h Floor 301 Grant Street Pittsburgh, PA 15219 Service by certified mail addressed as follows: Kofee Grinder 606 Cee Jay Drive Etters, PA 17319-8928 - &t Signature of Person Filing Timothy J. Cooney, OAG Team Leader Sovereign Bank MAI M133-02-10 2 Morrissey Boulevard Boston, MA 02125 August 14, 2006 ° ? rn -cytr {; ` ? 4' ? r ?, ?,?: rn ? T ;- m ? z; ? ?t_. v c -: --? ? ? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRIDER, Defendants. CIVIL DIVISION No. 06-2584 PK60er6 40 INTERROGATORIES IN ATTACHMENT TO: Sovereign Bank, Garnishee YOU ARE REQUIRED TO FILE ANSWERS TO THE FOLLOWING INTERROGATORIES WITHIN TWENTY (20) DAYS AFTER SERVICE UPON YOU. FAILURE TO DO SO MAY RESULT IN JUDGMENT AGAINST YOU: 1. At the time you were served or at any subsequent time did you owe the defendants any money or were you liable to them on any negotiable or other written instrument, or did they claim that you owed them any money or were liable to them for any reason? No 2. At the time you were served or at any subsequent time was there in your possession, custody or control or in the joint possession, custody or control of yourself and one or more other persons any property of any nature owned solely or in part by the defendants? No-See Attached 3. At the time you were served or at any subsequent time did you hold legal title to any property of any nature owned solely or in party by the defendants or in which defendants held or claimed any interest? No 4. At the time you were served or at any subsequent time did you hold as fiduciary any property in which the defendants had an interest? No 5. At any time before or after you were served did the defendant transfer or deliver any property to you or to any person of place pursuant to your direction or consent and if so what was the consideration therefore? No 6. At any time after you were served did you pay, transfer or deliver any money or property to the defendants or to any person or place pursuant to his direction or otherwise discharge any claim of the defendants against you? No 7. If your answer to any of the above is in the affirmative, please state the amount or value of the property you are holding. See Attached 4-4 i?! .- Stephen S. Zubrow (PAID. No. 43523) Raeann Traficante (PA I.D. No. 85515) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Financing Limited Partnership F z h :8 v 8 z lnr Soot Vd iAiloJ ti4fle idd8wr-.Jl J 182HS 3N! dd 301330 ANSWER TO INTERROGATORIES Account # 0571140408 Balance: $-770.00 (overdrawn) Inactive since 6/30/06. Account Holder: Kofee Grinder 606 Cee Jay Drive Etters, PA 17319-8928 VERIFICATION I, Timothy J. Cooney, OAG Team Leader of Sovereign Bank, hereby verify that the information contained in the foregoing Answers to Interrogatories in Attachment are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4094, relating to unsworn falsification to authorities. Sovereign Bank By: _ AV4- Timothy J. Cooney OAG Team Leader c t? ? Syi. GY f4' cr% S?, ' i ? w IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, v. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRIDER, Defendants. CIVIL DIVISION No. 06-2584 PRAECIPE FOR WRIT OF EXECUTION To the Prothonotary: Kindly issue a Writ of Execution upon a judgment entered by confession in the above matter. (1) directed to the Sheriff of Cumberland County, Pennsylvania; (2) against David and Linda Robinson t/a The Kofee Grinder, Defendants, whose last known address is 606 Cee Jay Drive, Etters, Pennsylvania 17319; and (3) against Sovereign Bank, Garnishee, with an address of 17 W. High Street, Carlisle, Pennsylvania 17013; (4) and index this writ against David and Linda Robinson, Defendants, as a lis pendens against the real property of the Defendants. (5) Amount due: $11,553.93 Interest from May 5, 2006 at 6%: $ 102.60 Costs: Writ: $ 15.50 Sheriff: $ 150.00 TOTAL AMOUNT: $ 11,822.03 CERTIFICATION I certify that: a) This praecipe is based upon a judgment entered by confession, and b) Notice has been served pursuant to Rule No. 2958.1 at least thirty (30) days prior to the filing of this praecipe as evidenced by an Affidavit of Service filed of record. Date: July I 1, 2006 Stephen S. Zubrow (PA I.D. No. 43523) Raeann Traficante (PA I.D. No. 85515) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership PRAECIPE FOR ATTACHMENT EXECUTION Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs, as above, directing attachment against the above-named garnishee for the following property (if real estate, supply six copies of the description; supply four copies of lengthy personalty list) AU and all of defendant's bank accounts in the possession of Sovereign Bank garnishee and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s). Date: July 11, 2006 Stephen S. Zubrow (PA I.D. No. 43523) Raeann Traficante (PA I.D. No. 85515) MARCUS & SHAPIRA LLP One Oxford Centre, 35th Floor 301 Grant Street Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership F--., n w cc WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 06-2584 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From DAVID ROBINSON AND LINDA ROBINSON T/A THE KOFFEE GRINDER, 606 CEE JAY DRIVE, ETTERS, PA 17319 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of SOVEREIGN BANK, 17 W. HIGH STREET, CARLISLE, PA 17013 GARNISHEE(S) as follows: and to notify the gamishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $11,553.93 Interest FROM 5/5/06 AT 6% - $102.60 Atty's Comm % Atty Paid $37.50 Plaintiff Paid Date: JULY 21, 2006 (Seal) L.L. $.50 Due Prothy $1.00 Other Costs t ZURTIS R. O G Prothonotary By: Deputy REQUESTING PARTY: Name REANN TRAFICANTE, ESQUIRE Address: MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35TH FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 Attorney for: PLAINTIFF Telephone: 412-471-3490 Supreme Court ID No. 85515 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRIDER, Defendants. CIVIL DIVISION No. 06-2584 MOTION TO COMPEL ANSWERS TO INTERROGATORIES IN AID OF EXECUTION Filed on Behalf of the Plaintiff PR Capital City Limited Partnership Counsel of Record for this Part, Stephen S. Zabrow PA TD No. 43523 Raeann B. Traficante Pa. I.D. No. 85515 MARCUS & SHAPIRA, LLP Firm No. 145 One Oxford Centre, 35th Floor 301. Grant Street Pittsburgh, PA 15219 (412) 471-3490 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY; PENNSYLVANIA PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff, V. DAVID ROBINSON and LINDA ROBINSON t/a THE KOFEE GRIDER, ) C lV11. DIVISION No. 06 -2584 ) ) Defendants. MOTION TO COMPEL ANSWERS. TO INTERROGATORIES IN AID OF EXECUTION Plaintiff, PR Capital City Limited Partnership t "Plaintiff'), by its attorneys, Marcus & Shapira LLP, files this Motion to Compel Answeis to Interrogatories in Aid of Execution and respectfully submits as follows: 1. On or about May 5, 2006, Plaintiff filed a Complaint in Confession of Judgment against Defendants. A true and correct copy of the Complaint and of the Notice of Entry of Confessed Judgment are attached hereto as Exhibits A and B, respectively. 2. On or about July 18, 2006, Plaintiff sere ed Interrogatories in Aid of Execution upon Defendants. A true and correct copy of the Interrogatories in Aid of Execution is attached hereto as Exhibit C. 3. Plaintiff advised Defendants That they had thirty (30) days from receipt to answer the Interrogatories and return them to counsel for Plaintiff. 4, Defendants did not respond to the lnten•ogatories in Aid of Execution. 5. On September 5, 2006, Plaintiff's counsel sent Defendants a letter requesting the answers to the Interrogatories in Arid of'Execution. A true and correct copy of the letter is attached hereto as Exhibit D. 6. To date, Defendants have failed to respond to the Interrogatories in Aid of Execution. Wherefore, Plaintiff, PR Capital City Limited Partnership, respectfully requests this Honorable Court to enter an Order compelling the Defendants to serve full and complete. An,swcrs to Interrogatories in Aid of Execution within fifteen ('15) days from the date ot dhe order. Respectfully submitted, Raeatin Traficante MARCUS & SHAPIRA n, .P One Oxford Centre, 35th Floor Pittsburgh, PA 15219 (412) 471-3490 Counsel for Plaintiff, PR Capital City Limited Partnership C The undersigned hereby certifies thal a *ru,; ;ar(t orrect copy of the foregoing Motion to Compel Answers to Interrogatories in Aid served upon the following by United States mail, first class service, postage prepaid, this _Iq ? clay of September, 2006: Linda Robinson Kofee Grinder 606 Cee Jay Drive Etters, PA 1 ;?'3 19 David Robinson Kofee Grinder 606 Cee Jay Drive Etters, PA 1731.9 Ra?e,uin ;raficant F N PR CAPITAL CITY LIMITED IN THE COURT OF COMMON PLEAS OF PARTNERSHIP, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. DAVID ROBINSON AND LINDA ROBINSON t/a THE KOFEE GRINDER DEFENDANTS NO. 06-2584 CIVIL ORDER OF COURT AND NOW, this 28th day of September, 2006, upon consideration of the Plaintiffs Motion to Compel, IT IS HEREBY ORDERED AND DIRECTED that the Defendants shall provide full and complete answers to the Plaintiffs Interrogatories in Aid of Execution on or before October 20, 2006. ,JQ0 Fin jsquire Stephen S. Zul row Raeann Traficante, Esquire Counsel for Plaintiff avid Robinson Jeti?da Robinson Defendants bas By the Court, '\\? t aA. M. L. Ebert, Jr., J N .C 140, K Os HOZ SHERIFF'S RETURN - GARNISHEE CASE NO: 2006-02584 P COMMONWEALTH OF PENNSLYVANIA COUNTY OF CUMBERLAND PR CAPITAL CITY LIMITED PARTNE VS ROBINSON DAVID ET AL And now RICHARD SMITH Sheriff or Deputy Sheriff of Cumberland County of Pennsylvania, who being duly sworn according to law, at 0009:15 Hours, on the 2nd day of August , 2006, attached as herein commanded all goods, chattels, rights, debts, credits, and moneys of the within named DEFENDANT ROBINSON DAVID T/A THE KOFEE GRINDER hands, possession, or control of the within named Garnishee SOVEREIGN BANK 17 W. HIGH ST CARLISLE, PA 17013 Cumberland County, Pennsylvania, by handing to TINA MCCOMMON (CUSTOMER SERVICE MANAGER personally three copies of interogatories together with 3 and attested copies of the within WRIT OF EXECUTION the contents there of known to Her , in the true and made Sheriff's Costs: So answers: Docketing .00 Service .00 + Affidavit .00 . Thomas Klin Surcharge .00 Sheriff of Cumberland County 00 08/03/2006 Sworn and Subscribed to before me this day of By Deputy Sheriff A.D SHERIFF'S RETURN - GARNISHEE CASE NO: 2006-02584 P COMMONWEALTH OF PENNSLYVANIA COUNTY OF CUMBERLAND PR CAPITAL CITY LIMITED PARTNE VS ROBINSON DAVID ET AL And now RICHARD SMITH ,Sheriff or Deputy Sheriff of , in the .00 .00 .00 .00 Cumberland County of Pennsylvania, who being duly sworn according to law, at 0009:15 Hours, on the 2nd day of August , 2006, attached as herein commanded all goods, chattels, rights, debts, credits, and moneys of the within named DEFENDANT ROBINSON LINDA T/A THE KOFEE GRINDER hands, possession, or control of the within named Garnishee SOVEREIGN BANK 17 W HIGH ST CARLISLE, PA 17013 Cumberland County, Pennsylvania, by handing to TINA MCCOMMON (CUSTOMER SERVICE MANAGER) personally three copies of interogatories together with 3 and attested copies of the within WRIT OF EXECUTION the contents there of known to Her Sheriff's Costs: Docketing Service Affidavit Surcharge Sworn and Subscribed to before me this true and made So ans R. Thomas Kline Sheriff of Cumberland County 00 ? 5 ??4 04 08/03/2006 day of 13Y eputy Sheriff A.D WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO 06-2584 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP, Plaintiff (s) From DAVID ROBINSON AND LINDA ROBINSON T/A THE KOFFEE GRINDER, 606 CEE JAY DRIVE, ETTERS, PA 17319 (1) You are directed to levy upon the property of the defendant (s)and to sell (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of SOVEREIGN BANK, 17 W. HIGH STREET, CARLISLE, PA 17013 GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $11,553.93 L.L. $.50 Interest FROM 5/5/06 AT 6% - $102.60 Atty's Comm % Atty Paid $37.50 Plaintiff Paid Date: JULY 21, 2006 (Seal) Due Prothy $1.00 Other Costs C TIS R. ONG Prothonotary By: Deputy REQUESTING PARTY: Name REANN TRAFICANTE, ESQUIRE Address: MARCUS & SHAPIRA LLP ONE OXFORD CENTRE, 35TH FLOOR 301 GRANT STREET PITTSBURGH, PA 15219 Attorney for: PLAINTIFF Telephone: 412-471-3490 Supreme Court ID No. 85515 R. Thomas Kline, Sheriff, who being duly sworn according to law, states this Writ is returned ABANDONED, no action taken in six months. Sheriff's Costs: Docketing 18.00 Poundage 1.86 Advertising Law Library .50 Prothonotary 1.00 Mileage 4.40 Misc. Surcharge 40.00 Levy 20.00 Post Pone Sale Certified Mail Postage Garnishee 9.00 TOTAL 94.76 ? s? l v /o Advance Costs: 150.00 Sheriffs Costs 94.76 55.24 Refunded to Atty on 04/27/07 So Answers; BY 0 C1, &,?Zw?D6Ck?_f ?? :8 d 8 Z inr 9001