HomeMy WebLinkAbout02-1635Attorneys for Plaintiffs:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LIFE INSURANCE
COMeANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & Gte'rS, INC., doing
business as EDWARD'S CARDS & GIFTS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
NO. 02' {~B~'-'
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT IN EJECTMENT
FOR POSSESSION OF REAL PROPERTY
Pursuant to the authority contained in the warrant of attorney, the original or a copy of which
is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in
favor of the Plaintiff and against Defendant for possession of the real property described as follows:
The premises designated as Store No. C-9 erected as part of the shopping
center known as the "Camp Hill Shopping Center," located at 32nd Street and Trindle
Road, Camp Hill, Cumberland County, Pennsylvania, as is more fully described in
the Lease, a copy of which is attached to the Complaint filed in this action.
Respectfully submitted,
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
~a. 'I.D. I~1o.'43902' quire
Dated: April 3, 2002
Attorneys _for Plaintiffs:
JAMES A. DIAMONO, ESQUIRE
Pa. I.D. No. 43902
JOttNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL l ,~ ~'E INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD S CARDS & Gte'rs, INC., doing
business as EDWARD'S CARDS & GIFTS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
COMPLAINT BY CONFESSION FOR POSSESSION
Plaintiff, CONNECTICUT GENERAL 1 .~ yE INSURANCE COMPANY, a Connecticut Corporation,
through its attorneys, James A. Diamond, Esquire and the law fim~ of Johnston & Diamond, P.C.,
brings this action pursuant to Rule 2970, et seq., of the Pennsylvania Rules of Civil Procedure,
whereby Plaintiff confesses judgment against Defendant, EDWARD'S CARDS & Gte'rs, INC., a Penn-
sylvania Corporation trading as EDWARD'S CARDS & Gte'tS, for possession of real property located at
Store No. C-9 at the Camp Hill Shopping Center, Camp Hill, Pennsylvania, and in support thereof
alleges as follows:
1. Plaintiff, Connecticut General Life Insurance Company (hereinafter"Landlord"), is a
Connecticut corporation which has a place of business at the Camp Hill Shopping Mall, 32nd Street
and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. Defendant Edward's Cards & Gifts, Inc., a Pennsylvania Corporation trading as Ed-
ward's Cards & Gifts (hereinafter "Tenant"), at relevant times had a business address at 2049 Stout
Drive, Unit B-I, Ivyland, Pennsylvania 18974.
3. Landlord and Tenant entered into a certain Indenture of Lease and Lease Agreement
dated November 1, 1998 (hereinafter referred to as the "Lease"), pursuant to which Landlord leased
certain commercial retail store premises in the enclosed mall erected as part of the Shopping Center
known as the "Camp Hill Shopping Center" or as the "Camp Hill Shopping Mall," located at 32na
Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. A true and correct
photostatic copy of the said Lease is attached hereto, designated as "Exhibit 1," and incorporated
herein by reference.
4. The said Lease that is attached to this Complaint as "Exhibit 1," and incorporated
herein by reference, is a tree and correct copy of an original instrument which has been executed by
Defendant.
5.
The Lease was entered into between Landlord and Tenant for the purposes of Tenant
conducting a retail business at the Camp Hill Shopping Mall, and does not constitute a residential
lease.
6.
The judgment being entered herein by confession is not being entered against a natu-
ral person in connection with a consumer credit transaction.
7. Tenant, by virtue of the said November 1, 1998 Lease, took possession of the Store
Premises designated as C-9 (hereinafter the "Demised Premises"), in the enclosed mall erected as
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part of the said Camp Hill Shopping Mall, which Premises is more particularly described in the
Lease attached hereto as "Exhibit 1" and incorporated heroin by reference.
As of the date of this Complaint, Tenant remains in possession of the said Demised
Premises.
9.
Notwithstanding the terms, covenants and conditions of the Lease, Tenant at relevant
times defaulted by failing to pay rent and other charges due to Landlord.
10. At all relevant times, Tenant was required to make monthly payments to Landlord of
rent and other charges, as is provided for in the Lease.
11. At all relevant times since at least November of 2000, Tenant failed to properly and
timely pay such monthly rent and other charges to Landlord.
12. The Lease, in Section 19.2(a), defining "Deliberate Events of Default," provides in
pertinent part as follows:
"(a) The following shall be deemed to be a Deliberate Event of Default:
1. If Tenant shall (i) fail timely to make payment of Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating
Costs, Tenant' s proportionate share of Landlord's all risk property insurance,
the HVAC Charge, Marketing Charge or Media Charge in each case on the
date such payment is due hereunder, without regard to any grace period
and/or written notice otherwise required from Landlord, and any such failure
shall be repeated two (2) times in any period of twelve (12) months .... "
13. Tenant failed and refused to make timely and proper payments of Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating Costs, Tenant's propor-
tionate share of Landlord's all risk property insurance, the HVAC Charge, Marketing Charge and
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Media Charge, in each calendar month since at least November of 2000, through the termination of
the Lease effective March 21, 2002, at 12:01 a.m.
14. Tenant, as of March 1, 2002, defaulted in the payment of this instrument in the prin-
cipal amount of at least $206,965.37, as is more fully set forth in the Statement of Delinquencies
which is attached hereto as "Exhibit 2," and incorporated herein by reference.
15. Although the Lease provides that Tenant's failure to make proper payments of rent
and other charges more than two times in a twelve-month period constitutes a Deliberate Event of
Default without regard to any grace period or any written notification of default, Landlord neverthe-
less notified Tenant of the default, including by its Notice of Default dated July 12, 2001, and its No-
tice of Default, through its counsel, dated March 18, 2002, tree and correct copies of which are at-
tached hereto, collectively marked as "Exhibit 3," and incorporated herein by reference.
16. Tenant has failed or refused to cure its material monetary delinquencies.
17. By written notification through its attorney, James A. Diamond, Esquire, dated March
18, 2002, one copy of which Notice was sent by certified mail, return receipt requested, deposited in
a mail receptacle maintained by the United States Postal Service on March 18, 2002, and another
copy of which was simultaneously sent by UPS Overnight Air service, to Tenant's notice address,
Landlord notified Tenant of the tetxxdnation of Tenant's Lease and tei-~ thereunder, effective March
21, 2002, at 12:01 a.m. A tree and correct copy of the notification of lease termination is attached
hereto as part of "Exhibit 3," and is incorporated herein by reference.
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18. Pursuant to the Lease, including Section 19.7(b), Landlord, by virtue of Tenant's said
Deliberate Events of Default, and by virtue of the said termination of Tenant's Lease and right of
possession, now has the fight to confess judgment for possession against Tenant.
19. The Lease, in Section 19.7(b) provides in this regard as follows:
"(b) IN THE EVENT OF THE BREACH OF ANY PROVISION OF THE
LEASE, AN EVENT OF DEFAULT OR A DELIBERATE EVENT OF DEFAULT
AS DEFINED HEREIN, EITHER DURING THE TERM OR ANY RENEWAL OR
EXTENSION THEREOF, AND/OR WHEN AND AS SOON AS THE TERM
SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT HEREBY IR-
REVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR
ATTORNEY OF ANY COURT OF RECORD AS ATTORNEY FOR TENANT
AND ANY PERSONS CLAIMING THROUGH OR UNDER TENANT, WITH OR
WITHOUT COMPLAINT FILED, TO CONFESS JUDGMENT IN EJECTMENT
AGAINST TENANT AND ALL PERSONS CLAIMING THROUGH OR UNDER
TENANT, IN FAVOR OF LANDLORD, FOR THE RECOVERY BY LAND-
LORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS 1J~ASE, OR A
TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WAR-
RANT, WHEREUPON IF LANDLORD SO DESIRES, A WRIT OF EXECUTION
OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR
ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED
THE SAME SHALL BE DETERMINED CANCELED OR SUSPENDED AND
POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TEN-
ANT OR ANY PERSON CLAIMING THROUGH OR UNDER TENANT, LAND-
LORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR
DEFAULTS, OR UPON ANY SUBSEQUENT TERMINATION OR EXPIRA-
TION OF THIS LEASE, OR ANY RENEWAL OR EXTENSION HEREOF, OR
OF TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO
CONFESS JUDGMENT IN EJECTMENT AS HEREIN BEFORE SET FORTH
ONE OR MORE ADDITIONAL TIMES TO RECOVER POSSESSION OF THE
PREMISES. TENANT HEREBY ACKNOWI.EDGES THAT BY AGREEING TO
THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF AT-
TORNEY, TENANT WAIVES THE RIGHT TO NOTICE AND A PRIOR JUDI-
CIAL PROCEEDING TO DETERMINE ITS RIGHTS AND LIABILITIES, AND
FURTHER ACKNOWLEDGES THAT LANDLORD MAY, ON DEFAULT BY
TENANT UNDER THE LEASE, SUBJECT TO SUCH NOTICE REQUIRE-
MENTS, IF ANY, AS ARE HEREIN EXPRESSLY PROVIDED, OBTAIN A
JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES
WITHOUT ANY OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE,
SETOFF, COUNTERCLAIM OR OTHER CLAIM THAT TENANT MAY HAVE,
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AND THAT TENANT KNOWINGLY, VOLUNTARILY AND INTEl J IGENTLY
GRANTS LANDLORD THE FOREGOING RIGHT TO CONFESS JUDGMENT
AND WARRANT OF ATTORNEY AS AN EXPLICIT AND MATERIAL PART
OF THE CONSIDERATION BARGAINED FOR BETWEEN TENANT AND
LANDLORD. TENANT CERTIFIES THAT IT HAS BEEN REPRESENTED BY
(OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) AT THE SIGN-
lNG OF THIS LEASE AND IN THE GRANTING OF THIS CONFESSION OF
JUDGMENT AND WARRANT OF ATTORNEY BY INDEPENDENT l ,EGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD
THE OPPORTUNITY TO DISCUSS THE CONFESSION OF JUDGMENT AND
WARRANT OF ATTORNEY WITH COUNSEL. TENANT FURTHER CERTI-
FIES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND EF-
FECT OF THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT
OF ATTORNEY. TENANT FURTHER ACKNOWI.~.DGES THAT THIS LEASE
IS A COMMERCIAL TRANSACTION, AND THAT THE RELATIONSHIP BE-
TWEEN LANDLORD AND TENANT CREATED HEREUNDER IS COMMER-
CIAL IN NATURE.
20. There has been no prior exercise of the warrant of attorney to confess judgment con-
tained in the said instrument in any jurisdiction.
21. The following assignments of the instrument have been made since its execution and
delivery: The Lease, as well as all other Leases relating to the said shopping center, was assigned to
Landlord by the prior owner of the shopping center, Camp Hill Shopping Center Associates, a Penn-
sylvania General Partnership, effective November 1, 2000, in connection with a conveyance of the
property to Landlord.
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WHEREFORE, Plaintiff prays your Honorable Court to enter judgment in ejection in favor of
Plaintiff and against Defendant for the said Demised Premises located at Store C-9, Camp Hill
Shopping Mall, 32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011.
Respectfully submitted,
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
BY(fa~ . iamond, Esquire kP~. I.D. No. 43902
Attorneys for Plaintiff
Dated: April 3, 2002
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VERIFICATION
I, NmA R. KILROY, Senior Vice President of Metro Commercial Management Ser-
vices, Inc., as agent for Connecticut General Life Insurance Company with respect to the
Camp Hill Shopping Mall, am authorized to make this Verification, and hereby verify that
the statements contained in the foregoing Complaint are tree and correct to the best of my
knowledge, information and belief, and are made subject to the penalties of 18 Pa.C.S. §4904
relating to unswom falsification to authorities.
Dated: April 2, 2002
EXHIBIT 1
;:ODMA\PCDOCS~WCONSH; $813~
INDENTURE OF LEASE
THIS INDENTURE OF LEASE, dated as of the 1'~ day of November, 1998, by CAMP HILL SHOPPING
CENTER ASSOCIATES, a Penn,syhranla general partnership ("Landlord'), wi~ a notice address of cJo Kravitz
Properties, Inc. 555 City Avenue, Suite 460, Bale Cynwyd, PA 19004 (Kravitz Properties being hereinafter
referred to as 'Agent") end--nc, authorized to do business in the Commonwealth of
Pennslyvenia, trading as Edward's Cards & Gifts with a notice address at 2049 Stout Drive, Unit B-l, Ivylend, PA
18974 ('Tenant").
WITNESSETH:
A. Premises.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the store premises (the
"Premises") designated on the plan attached as Exhibit *A" hereto as C-9 erected as part of a shopping centei'
presently known as Camp Hill Shopping Center ('Shopping Center*) and p~sently comprising the area shown in
Exhibit "A*, located at 32nd Street and Tdndle Road, Cumberland County, Camp Hill, Pennsylvania 17011, the
Premises being measured and described by the following dimensions which are measured from the outside
building lines of each wail of the Premises or, in the case of those wails separating the Premises from other stores
in the Shopping Center, from the center lines of such walls:
Front: 30' - O'
Depth: 133' - 0' (irregular)
Total Area: 3,976 Total 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, 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 (collectively the 'Lease'), and to such reasonable rules and
regulations for the use thereof as may be p!'escribed from time to time by the Landlord in accordance with Section
5.4 of the Lease.
B. Length of Term.
The Original Term (defined herein) and Tenant's obligation to pay rent and occupy the Premises in
accordance with the terms of the Lease shall commence on November 1, 1998 (being hereinafter called the
"Commencement Date"). The Term (defined herein) shall be for a period of seven (7) years and two (2) months
from the Commencement Date, and shall terminate on December 31, 2005.
If Tenant's gross sales are less than Six Hundred and Fifty Thousand Do lars ($650,000) for any
consecutive twelve (12) month period durfng the 5~ and 6~' Lease Years of the Term (i.e., January 1, 2002 through
December 31, 2003), this Lease may be terminated by Tenant after the end of the 6~ Lease Year upon sixty (60)
days written notice to Landlord, provided said notice is delivered to Landlord.oo or before March 1, 2004.
C. Fixed Minimum Ren£
Tenant shall pay to Landlord a guaranteed annual minimum rent ("Fixed Minimum Rent") for each of the
following periods dudog the Term as follows:
11/01198 - 12/31/03: $40,000.08 annually; $3,334.34 monthly
01/01/04 - 12/31/05: $48,000.00 annually; $4,000.00 monthly
Tenant's Fixed Minimum Rent shall be reduced by Two Thousand Two Hundred Dollars
($2,200.00) per month for the first three (3) months of the term for a total rent abatement of Six
Thousand Six Hundred Dollars ($6,600.00),
Tenant shall however pay for all utilities consumed within the Premises from the date Tenant receives
possession of the Premises from Landlord and thereafter throughout the Term.
Each such installment of Fixed Minimum Rent shall be due and payable on or before the first day of each
calendar month in the Original Term, in advance, at the office of Agent or at such place as may be designated by
Landlord from time to time, without any prior demand therefor and without any deduction or setoff whatsoever, the
lirst installment to be paid on the commencement Date whether or not the Commencement Date is the first day of
a calendar month· In the event that the Commencement Date of the Term shall be a day other than the first day of
a calendar month, Tenant's tiret payment of Fixed Minimum Rent shall be prorated for the fractional month '
Create Date: April 21, t999 2:45 PM 1 Print Date: April 23, 1999 9:34 AM
::ODMA\PCDOCS\WCONSH 1V )13~2
between the Commencement Date and the first day of the first full calendar month in the Term, on a per diem
basis (calculated on a thirty (30) day month). Landlord may accept any payment by Tenant of a lesser amount
than shall be due from Tenant without prejudice to any rights or remedies which Landlord may have against
Tenant. Andy endorsement or statement on any check accepted by Landlord, or any statement in correspondence
accompanying such check, that acceptance of such lesser amount is payment in full, shall be given no effect. All
rent shall be paid in United Stales currency and shall, if other than cash, be drawn on a United States bank.
D. Percentage Rent.
In addi§on to the Fixed Minimum Rent as aforesaid, Tenant, in ~c. cor~a~ce with Section 2.1 bf the Lease,
shall pay to Landlord, as Additional Refit (defined herein) hereunder ("Pemantage Rent'), and as part of the
consideration of the aforesaid demise, for each Lease Year [defined herein) in the Original Term a sum equal to
seven percent (7%) of that portion of Gmse Sales (as defined in Section 2.2 of the Lease) during each 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: .
11/01/98- 12/31/03: $571,430.00
01/01/04 - 12/31/05: $685,714.00
E. Use of Premises.
Subject to the provisions of Article 5 of the Lease, Tenant shall use the Premises solely for the purpose of
conducting the business of;.
For the display and sale at retail of greeting cards, seasonal memhandise, plush, costume jewelry,
statlone~, gift wrap, office supplies, party goods, gifts, novenas and similar items of a b/pe of merchandise
normally found in card and gift shops a~d for no other purpose.
Tenant's Fixed Minimum Rent and Pementage Renl: Gross Sales Base will decrease by an
amount which equals twenty-five percent (25%) of Tenant's then-current Fixed Minimum Rent and Tenant's then-
current Pementage Rent Gross Sales Base upon written notice from Tenant fo Landlord, if:.
(1) Landlord leases another space in the Shopping Center to a tenant occupying space in excess
of 2,200 square feet whose primary use is the sale of greeting cards; AND
(2) Provided that during the twelve (12) full months following the opening of the new tenant's
space, Tenant's Gross Sales have been red[iced by at least fi~teen percent (15%) ever
Tenant's Gross Bales for the corresponding twelve (12) month period of the previous year.
F. Shopping Center Hours of Operation.
The present hours of opara§on of the Shopping Center during which Tenant must have the Premises open
~or business with the public (subject to adjustment b~ Landlord as set forth in Section 5.1 ) are:
Monday through Friday: 10:00 A.M. to 9:00 P.M.'
Saturday: 10:00 A.M. to 9:00 P.M.
Sunday: 12:00 Noon to 5:00 P.M.
G. HVAC Charge.
In accordance with Section 12.1 of Ihe Lease, for each year during the Original Term, Tenant shall pay
Landlord a fixed amount for the heating and/or cooling medium supplied'by the randlord to the Premises as
follows:
11/01/98 - 12/31/00: $2,700.00 annually; $225.00 monthly
01/01/91 - 12/31/93: $3,600.00 annual; $300.00 monthly
01/01/04 - 12131105: $5,100.00 annually; $.425.00 monthly
H. ' Taxes.
In accordance with and subject to the adjustments set forth in Section. 3.1 of the Lease, for each ~Tax
Year' (as dalined in said Section) during the Original Term, Tenant shall pay Landlord on account of Tenant's
share of any "Taxes" (as defined in such Section), the annual amount of (~e Dollar and Zero Cents ($1.00)
multiplied by the number of square feet of floor area con{ained within the Premises. The dollar amount set forth
herein is an initial estimate only.
Create Date: April 21, 1999 2:45 PM 2 Print Date: April 23, 1999 9:34 AM
::ODMA~PCDOCS~WCONSH 1 3813~
Operating Costs and Electriciqf.
In accordance with and subject to the adjustments set forth in Section 7.3 of the Lease, for each
'Accounting Period' (as defined in said Section) during the Original Term, Tenant shall pay Landlord on account of
Tenant's share of'Oparafing Costs' (es Iheretn defined), the annual amount equal to Four Dollars an_d. Eighty
Cents ($4.80) multiplie~ by the number of square feet of floor area contained within the Premises. The dollar
amount set forth herein is an initial estimate only, Tenant shall pay to Landlord the initial amount of Five Hundred
Fifty-Eight Dollars'and Forty-Four Cents ($558.44) per month for electricity which will be adjusted based on actual
usage as determined by a check meter and/or computations by a qualified professional consultant in accordance
with Exhibit
J. Marketing Fund and Media Fund.
In accordance with and subject to the adjustmmlts set forth in A~cta,15 of the Lease, for each year during
the Original Term, Tenant shall pay to Landlord the annual amount of Fifty Cents ($,50) multiplied by the number
of square feet of floor area contained within the Premises for Ihe Marketing Charge, such amour to be 'increased
on January 1 '* of each year beginning January 1, 2000 by seven percent (7%) of the previous year's payment.
Pr~portionate Insurance.
In accordance with Section 7.4 of the Lease, for each year during the Original Term, Tenant shall pay to
Landlord the annual amount of Filly Cents ($.50) multiplied by the number of square feet of floor cover contained
within the premises for the Insurance Charge.
L. Remodeling.
intentionally Deleted.
M. Securf~y Deposi[
None.
N. Lease Documents.
In addition to the indentu~ of Lease end the Lease Agreement consisting of 42 pages, 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, and the following Exhibits:
Exhibit 'A' - Site Plan of Shopping Center
Exhibit 'B" - Sign Regulalfi:ms
Exhibit 'C' - Electricity Schedule
IN V~TNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this
Lease to be duly executed the day and year first above wdtten.
Create Date: April 21, 1999 2:45 PM
LANDLORD:
CAMP HILL SHOPPING CENTER ASSOCIATES
Dona~JWJMil[eF. General
TENANT:
EDWARD~ cARDs &'GIFTS, INC.
· BY:
A1 ~ ~-ST:_
Secretary
Print Date: Apd123, 1999 9:34 AM
::ODM~,\PCDOCS~.WCONSH 1V
¢
LEASE AGREEMENT
ARTICLE 1
TERM; DEFINITIONS
SECTION 1.1 Confirmation of the Term
(a) At any time after the Commencement Date of the Term 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 tome and effect and (2) certify the commencement and
termination dates of the Odglsel Term.
(b) This Lease and the tenancy hereby created shall cease and terminate at the end of the Term without the
necessity of any notice from either Landlord or Tenant to terminate the same, and Tenant hereby waives notice to
vacate the Premises and agrees that Landlord shall be entitled to the b~nefit (~f ell provisions of law respecting the
summary recovery of possession of Premises from a tenant holding over to the same extent as if statutory notice
had been given.
(c) The period commencing on the date hereof and terminating on the data immediately prior to the
Commencement Date is herein referred to as the "Initial Term,' and the period from the Commencement Date to
the stated expiration date (and all extensions or renewals thereof) or earlier termination of this Lease is herein
referred to as the "Original Term." For the purposes of this Lease the word 'Term' shall be deemed to mean the
Initial Term and the Original Term and all extensions or renewals thereof (hereinafter collectively called the
'Term"). During the Initial Term, all of the terms, covenants and conditions hereof shall be in tull fome and effect,
but Tenant's menetary obligations hereunder, except for payment of the utility charges and the HVAC Charge,
shall be abated until the Original Term has commenced.
SECTION '1.2 Failure of Tenant to Open; Failure to Operate
(a) It is exPressly understood and agreed that Landlord does not consider the Fixed Minimum Rent in itself a
fair and adequate rental for the 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, (i) if Tenant fails to open for business at the Commencement Date and/or
(ii) thereafter, if Tenant fails to continuously operate its business in accordance with the terms of this Lease or
vacates the Premises prior to the expiration of the Term, Landlord will suffer damages in an amount which are not
readily ascertainable and thus in any such event Landlord shall have the right, at its option, to collect as liquidated
damages, and not as a penalty, irt addition to all other charges which ara due hereunder, one-thirtieth (ll30th). of
an amount equal to the monthly installmeot Of Fixed Minimum Rent for each day which Tenant fails to so operate.
SECTION 1.3 Certain Definitions
'Attorney's Fees' has the mear~ng set forth in Section 21.25.
'A. ccounfing Period' means the period consisting of twelve (12) consecutive calendar months,
commencing on a date determined by Landlord from time to time and each succeeding twelve (12) calendar month
period during the Original Term.
'Additional Rent" has the meaning se~ forth in Section 2.6.
'Commencement Date' has the meaning set forth in paragraph B of the Iodenture of Lease.
'Common Areas' means all areas, space, 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 invitees. If and to the extent mede available by Landlord, Common Areas shall include, but not be limited to,
the sidewalks, parking areas, access roads and drives, driveways, parking d~Cks, bridges. landscaped areas,
truck ser¥iceways, tunnels, loading docks, open and enclosed pedestrian walkways, corridors and malls, courts,
stairs, roofs, skylights, slgnage, ramps, elevators, escalators, comfort and first aid stations, public washrooms,
community hall or auditorium, parcel pickup stations, utility lines and utility rooms.
"Deliberate Events of Default' has the meaning set forth in Section 19.2.
"Environmental Statutes' has the meaning set forth in Section 5.3(j).
Create Date: April 21, 1999 2:45 PM I Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\1' 13~2
"Event of Default' has the meaning set forth in Section 19.1.
"Excluded Areas" has the meaning set forth in Section 3.1(d).
'Gross Sales' has the meaning set forth in Section 2.2.
'Hazardous Material" has the meaning set forth in Section 21.23(a).
"HVAC Charge" has the meaning set forth in Section 12.4.
"Initial Term" has the meaning set fo~h in Section 1.1(c).
'Lease Year' means the twelve (12) flJII calendar months of the Term commencing with the January 1st
immediately following the Commencement Date and ending December 31st of such calendar year and each '
succeeding twelve (12) month period; provided, however, that the first Lease Year shall commence on the
Commencement Date and terminate on the immediately following thirty-first (31st) day of December in the Term
and the last Lease Year shall terminate on the last day of the Term.
"Marketing Charge" has the meaning set forth in Section 15.1.
'Marketing Fund" has the meaning set forth in Section 15.1.
'Media Charge' has the meaning set forth in Section 15.2.
'Media Fund' has the meaning set forth in Section 15.2.
'Operating Costs* has the meaning set forth in Section 7.2.
"Original Term" has the meaning set forth in Section 1.1.C.
'Percentage Rent' has the meaning set forth in Paragraph D in the Indenture of Lease.
"Percentage Rent Gross Sales Base' has the meaning set forth in Paragraph D in the Indenture of Lease.
'Premises' has the meaning set forlh in Paragraph A in the Indenture of Lease·
"Remediation' has the meaning set forth in Section 21.23(c).
'Rental Adjustment Date' has the meaning set forth in Section 2.1(d).
"Shopping Center" has the meaning set forth in Paragraph A in the Indenture of Lease.
"Taxes' has the meaning set forth in Section 3.1.
"Tax Rent' has the meaning set forth in Section 3.1.
"Tax Year' has the meaning set forth in Section 3.1.
'Term' has the meaning set forth In Section 1.1(c).
"Tenant's Work" has the meaning se{ forth in Section 4.2(b).
ARTICLE 2
RENT
SECTION 2,1 Percentage Rent
(a) The Percentage Rent shall be payable without prior demand end without any setoff or deduction
whatsoever, at the times set forth hereinafter at the place then fixed for the payment of Fixed Minimum Rent.
(b) Not later than thirty (30) days after the expiration of the first "Lease Year' of the Term and, unless
Landlord exercises its option as set forth in the next sentence hereof, thereafter not later than thlrti/(30) days after
the expiration of each subsequent Lease Year in the'Term, 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, after the expiration or'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 Rent due hereunder commencing with the first such
payment due immediately after the receipt by Tenant of such notice an amount equal to one-twelfth (1112th) of
eighty percent (80%) of the Percentage Rent payable for the immediately preceding Lease Year. Notwithstanding
anything herein to the contrary, Landlord will not exercise it'? option to collect monthly installments of Percentage
Rent i'n any Lease Year until Tenant has reached it's Pementage Rent Gross Sales Base for such Lease Year.
Thereafter, Tenant shall continue to pay estimated payments of Percentage Rent together with each monthly
installment of Fixed Minimum Rent due for each calendar month in the Term; provided, however, that the amount
of such estimated monthly payments of Percentage Rent may, at Landlord's option, be adjusted at the expiration
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of each subsequent Lease Year after receipt by Landlord of Tenant's statement referred to in Section 2.3(b) to an
amount equal to one-twelfth (1112th) of eighty percent (80%) of the Percentage Rent payable for the Lease Year
immediately preceding such adjustment and commencing with the payment of Fixed Minimum Rant due
immediatelY after receipt by Tenant of notice of such adjustment, Tenant shall continu;, to pay such adjusted
amount until the next adjustmant. Although estimated Pemantage Rent shall be payable monthly as aforesaid, the
final computation and payment shaft be on an annual basis, Within thirty (30) days after receipt of each notice
from Landlord implementing the fomgoiog adjustment, Tenant shall pay the Landlord an amount equal to the
aforesaid monthly estimated payment of Percentage Rent retroactive to the first day of the current Lease Year.
(c) In the event that the first or last Lease Year shall consist of other than twelve (12) full calendar months,
the Percentage Rent Gross Sales Base for such Lease Year shall be deemed to be that portion of the Percentage
Rent Gross Sales Base obtained by multiplying the applicable Percentage Rent Gross Sales Base set forth in the
Indenture of Lease by a fi'action, the numerator of which shall be the number of days contained in such Lease
Year and the denominator of which shall be three hundred sixty-five (365).
(d) tn the event the amount of the Percentage Rent Gross Sales Base set forth herein is subject to
adjus/ments during the Term, and the date on which such adjustment Is to occur (the "Rental Adjustment Date') is
other than the first day of a Lease Year, the Percentage Rent Gross Sales Base of the Lease Year in which the
Rental Adjustmant. Date shaft fail shaft be the sum of:. (1) the lesser Percentage Rent Gross Bales Base set forth
in the Indenture of Lease multipftad by a fraction, the numerator of which shaft be the number of days in the period
commencing on the first day of the Lease Year in which the Rental Adjustment Date shall fall and ending on the
day Immediately prior to the Rantal Adjustment Data end the denominator of which shall be three hundred sixty-
five (365), plus (2) the greater Percentage Rent Gross Sales Base set forth in the indenture of Lease multiplied by
a fraction, the numerator of which shaft be the number of days in the period commencing on the Rental Adjustment
Date and ending on the last day of the Lease Year in which the Rental Adjustment Date shall fall and the
denominator of which shaft be three hundred sixty-five (365). , .
(e) Excep~ as provided herein to the contrary, there shaft be no abatement, apportionment or suspension of
the Percentage Rant payable hereunder. If pursuant to any other section of this Lease, Tenant should be entitled
to an abatement, apportionment or suspansion of the Fixed Minimum Rent payable hereunder, T~nant shall
continue to pa)' to Landlord the Percentage Rent during the period in which the Fixed Minimum Rent shall have
been abated, apportioned or suspended; amd during any and afl Lease Years in which there shaft be one or more
such periods, the Percentage Re~t Gross Sales Base shall be reduced in the same proportion as the Fixed
Minimum Rent shall have been abated, apportioned or suspended.
(f) If during any Lease Year the Premises shall not be open for business on one or more days on which
Tenant is obligated to conduct business pursuant to this Lease and for which days Tenant shall not be entitled to
an abatement, apportionment or suspension of'the Fixed Minimum Rent, the Percentage Rant Gross Sales Base
shall be deemed to be reduced to zero for such days. In the event that any reduction of the Percentage Rant
Gross Sales Base is applicable to one or more days during a Lease Year, the Percentage Rant Gross Sales Base
to be used in calculeting the Percentage Rant for such Lease Year shah be determined by averaging on a da~ly'
basis (excluding from the calculation those days during which the majority of stores in the Shopping Center shall
not have been open for business) the Percentage Rent Gross Sales Base applicable during such Lease Year.
SECTION 2.2 Gross Sales Defined
(a) The words 'Gross Sales' es used herein shall mean the gross amount of aft revenue generated by sales,
rantai, performance of services or otherwise by Tenant and/or by any subtenant, licensee or concessionaire in, al
or from the Premises (including, but not limited to, catalogue sales made at or from the Premises), whether for
cash, credit or other consideration, with such other consideration being determined at fair market value and
financing charges on all Gross Sales (without reserve or deduction for i~abftity or failure to collect) including, but
not limited to, such sales, rental, and services (1) as a result of transactions originating in, at or from the Premises,
whether delivery or performance is made ~ the Premises or from some other place; (2) pursuant to mail,
telephone, telegraph, telecopy, fax, closed TV circuit, and other devices, automated or otherwise, whereby orders
are received at the Premises or (3) which Tenant or any subtenant, ftcensae or concessionaire in the normal
course of its business would attribute to its operations at the 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 shaft be made, irrespective of the time when Tenant shall receive payment therefor,
(b) The following shall be deducted ~3m Gross Sales if originally included therein, or excluded therefrom, as
the case may be, provided separate records are supplied supporting such deductions or exclusions, namely: (1)
any exchange of merchandise between stores of Tenant where such exchange is made solely for the convenient
operation of Tenant's business and no~ for the purpose el' consummating a sale made in, at or from the Premises,
(2) returns to shippers or manufacturers, (3) cash or credit refunds to custamers on transactions otherwise
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included in Gross Sales, (4) sales of fixtures, machinery and equipment after use thereof in the conduct of
Tenant's business in the Premises, (5) amounts collected and 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 amount 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) sales at a discount to employees, not to exceed one percent (1%~ of annual
Gross Sales, (7) mcelpls ~ the permitted pay telephone and vending machines referred to in Section 5.3(q).
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 2.3 Percentage Rent Statements
(al Not later than the fifteenth (15th) day alter the end of each calendar month in the Term, 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 and
certifying same to be true and con'act. If the Commencomont 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 menth 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) N°t later than the data set ferth in Section 2.1(b) hereof, Tenant shall submit to Landlerd a complete
written statement of Tenant's Gross Sales for the preceding Lease Year in such reasonable detail, as requested
by Landlord, accompanied by a statement signed and certified by Tenant, its duly auihorized officer or
representative, stating that the Gross Sales reported by Tenant are in accord with the amount thereof set forth on
Tenent;s regularly maintained books and records and that the Gross Sales conform with and ara computed in
compliance with the definition of Gross Sales contained in this Lease. Simultaneously with the delivery of the
statement referred to in the precacrmg sentence, Tenant shall pay to Landlord the full unpaid balance of the
Pementage Rent due and payable for such Lease Year, if any. In the event Tenant is making estimated payments
of Percentage Rent and Tenant Is not then in default hereunder or otherwise Indebted fo Landlord, any excess of
estimated Pementage Rent that Tenant may have paid for such Lease Year over the Percentage Rent actually
due for such Lease Year shall be rafonded to Tenant within thirty (30) days; prb~ded, if such overpayment is for
the last Lease Year, Landlord shall not be obligated to refund to Tenant the amount of such overpayment until
Tenant has fully perfon'ned all of its obligations under the Lease. is not indebted to Landlord and has vacated the
Premises in accordance with the provisions of this Lease. In the event Tenant is indebted to Landlord for any'
reason whatsoever, Landlord may deduct such amount owed from such overpayment.
(c) The acceptance by Landlord of payments of Percentage Rent or reports thereof shall 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 set forth in Section 2.4 hereof.
(d) If Tenant shall fail to deliver such statement as required by Section 2.3(b), within the period set forth
therein and such failure shall continue for ten (10) days after the date of written notice of such failure from
Landlord, Landlord shall have the right thereafter to employ an 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 cost of the
examination, together with the full balance of Percentage Rent due and payable for said Lease Year.
SECTION 2.4 Tenant's Records
(al Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or
concessionaire upon the Premises shall be maintained in accordance with generally accepted accounting
principles. Furthormera, Tenant shall keep at all times during the Term, at the Premises or at the general office of
Tenant, full, complete and accurate books of account and records in accordance with generally accepted
accounting principles and sufficient to establish an audit bail with respect to all operations of the business to be
conducted in or from the Premises, including, without limitation, the recording of Gross Sales and the receipt of all
merchandise into and the delivery of all merchandise from the Premises during the Term and Tenant shall retain
such books and records, copies of all tax reports submitted to the appropriate taxing authorities, as well as copies
of contracts, vouchers, checks, inventory records, dated cash register tapes with sealed continuous totals or other
equivalent original sales records and other documents and papers in any way relating to the operation of such
business (all of which are hereinafter collectively reran'ed to as 'books and records'), for at least three (3) years
from th? end of the Lease Year fo which they are applicable, or, if an audit is commenced or if a controversy
should arise between the parties hereto regarding the rent payable hereunder, until such audit or controversy is
terminated even though such retention period may be after the expiration of the Term of, or earlier termination of,
this Lea'se. Such hooks and records shall be open at all reasonable times during the aforesaid retention period, :
after prior written notice to Tenant. to the inspection of Landlord or its duty authorized representatives, who shall
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::ODM~\PCDOCS\WCONSH 1\1 13~2
have full and free access to such books and records, the right to audit such books and records and the dght to
require of Tenant, its agents and employees, such information or explanation with respect to such books and
records as may be necessary for a proper examination and/or audit thereof. If for any reason Tenant does not
fully comply with the above obligations on the date designated by Landlord for an inspection and/or audit of
Tenant's books and records, and Landlord agrees to rescbedule such inspection and/or audit, Tenant shall
reimburse Landlord, on demand, for Landlord's out-of-pocket expenses relating to such reschedullng.
(bt th the event Tenant violates the provisions ~f Section 2.4(a} and as a result of such v~olation, Landlord, or
its duly authorized representative, is Onable 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 whioh Is no{ readily ascertainable and thus, in such event, Landlord In addition to and not
in lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its
option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the
greater of (1) Percentage Rent reported for the period or periods in question, or (2) the annual Fixed Minimum
Rent payable for the period or pedods in ques§on.
SECTION 2.5 Audit
(al If the examination and/or audit referred lo in Section 2.4 shall disclose that Tenant has understated its
Gross Sales by three pement (3%) or more for any Lease Year during 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.
SECTION 2.6 Additional Rent
(al All sums of money or charges reqalred to be paid by Tel~ant under this Lease, whether or not the same
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. bo collectible as rent with the next!Installment of Fixed Minimum Rent therealtar falling due hereunder
together with a late charge of fifteen pement (15%) per annum from the due date thereof to the date of payment,
but not in excess of the highest rate allowed by law. In the event arty check tendered by Tenant to Landlord is not
honored on initial presentation, Tenant shall pay Landlord the greater of Thirty-Five Dollars ($35.00) or the amount
Landlord's bank charges Landlord for processing such returned check.
ARTICLE 3
TAXES
SECTION 3.1 Taxes
(al For the purposes of this Section 3.1, the word "Taxes' shall include all Taxes attributable to improvements
now or hereafter mede to the Shopping Center or any part thereof or attributable to the present or future
installation in the Shopping Center or any part thereof of fixtures, machinery or equipment, all real estate Taxes,
assessments, water and sower and other governmental impositions and charges of every kind and nature
whatsoever, r~onrecurring as welt as recurring, general or special assessments, ordinary as well as extraordinary,
foreseen and un~xeseen, alt metropolitan district charges, all assessments for schools, public improvements and
benefits, charges, fees or assessments for all governmental services or purported benefits to the Shopping
Center, any business or special services district, merchants' advertising, use or similar tax, assessment or levy
applicable to owners of real estate or to any retail establishment, whether payable to a state, county or municipal
authority or to a separately assessed service district, payments in lieu of Taxes, all business privilege taxes, trash '
generation taxes and any tax, fee or excise on the act of entering into this Lease or any other lease of space in the
Shopping Center (including, but not limited to any realty transfer tax) or on the use or occupancy of the Shopping
Center or any part thereof, or on the rent payable under any lease or in connection with the business of renting
space in the Shopping Center, and each and every installment thereof, which shall or may during the Term be
levied, assessed or imposed, or become due and payable or become liens upon, or arise in connection with the
use, occupancy or possession of, o~ any interest in, the Shopping Center or any part thereof, or any land, buildings
or other improvements therein, less ali amounts paid as Taxes to Landlord or others by the occupants of any
'Excluded Areas" (as defined in Section 3.1 (d) hereof). The word 'Taxes' shall not include any charge, such as
water meter charge and sewer rent based thereon, which is measured by the consumption by the actual user of
the item or service for which the charge is made.
(bt For each 'Tax Year" (as defined in Section 3.1(e) hereof) during the Original Term, Tenant shall pay to
Landlord as Additional Rent ("Tax Rent"), the arr, ount obtained by multiplying the total of all Taxes payable during
such Tax Year by a fraction, the numerator of which she# be the square feet of floor area of the Premises and the
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::O DM,5\PCDOCS~WCONSHI' 813~2
denominator of which shall be the average of the total amount of square feet of "leasable floor area' ias defined
and computed pursuant to Section 3.1 (d) hereof) In the Shopping Center in effect on the last day of each calendar
quarter in the Term. On account of Tax Rent, 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
(1712th) of the annual amount payable on account of Tax Rent, as set forth in the SecUon H of the Indenture of
Lease for each square foot of I1oor area contained within the Premises. Such amount may be adjusted by
Landlord at any time during the Term to an amount equal to one-twelfth (1/12) of the Tax Rent payable by Tenant
for the preceding Tax Year, If Tenant's payment on account of Tax Rent for any Tax Year exceeds the actual
amount payable by Tenant as Tax Rent for such Tax Year, Landlord shall credit such excess to Tenant within
thirty (30) days, and Landlord may elect to apply such excess to any indebtedness to Landlord. Jf such Tax Year
is the last Tax Year in the Term, Landlord shall refund such excess to Tenant within thirty (30) days; to the extent
Tenant is not indebted to Landlord and provided Tenant has fully performed aD of its obligations under this Ldase
and has vacated the Premises in accordance with the provisions hereof, In the event Tenant is indebted to
Landlord for any reason whatsoever, Landlord may deduct such amount owed from such overpayment.
(c) Landlord shall have the dght to bill Tenant for Tax Rent at any time 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 Taxes or represents a
Tax Bill based upon a final or partial assessment or determination). Tenant shall pay the balance of its Tax Rent
within thirty (30) days of date of written notice rTom Landlord containing 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 made on
account of such Tax Rent. All subsequent monthly payments on account of Tax Rent made by Tenant during
such Tax Year after date of written notice of such bill and statament shall be applied by Landlord toward payment
on account of Tenant's obligation for Tax Rant for the next ensuing Tax Year and shall not reduce Tenant's
obligation to pay the balance due Landlord pursuant to such statement. In making the computations as aforesaid,
a tax b. ill or photocopy thereof submitted by Landlord to Tenant shall be conclusive evidence of the amount of the
Taxes included in the computation of the 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 Tax Year in the Term whether or not Landlord sisal/
theretofore have received a tax biti 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. If Landlord has not
received a tax bill and/or has not ascertained the leased floor area of the Shopping Center for such period,
Landlord shall estimate the amount of such last installment of Tax Rent on the basis of information contained in
the tax bill most recently received by Landlord, and/or the leased ltoor area of the Shopping Center, 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 and/or confirms such leased floor area. Tenant shall pay such adjusted amaunl upon billing
by Landlord.
(d) As used in this Lease, 'Excluded Areas" shall mean portions of the Shdpping Center used or designated ' ·
on Exhibit 'A" for use in connection with the operation of a department store, premises which aggregate at least
15,000 square feet of floor area leased to a single tenant, all office space, alt basement space, all out pamels and
pad sites, all buildings shown on Exhibit "A" attached hereto which are labeled 'excluded", and any portions of
additions to the Shopping Center referred to in Section 4.3(b) which Landlord hereafter designates as an Excluded
Area. For the purposes of this lease, the words 'leasable floor area' shall mean the square feet of ftoo~ area in
enclosed buildings which are erected on por~ons of the Shopping Center other then Excluded Areas and which
are capable of being occupied pursuant to an agreement with Landlord, and which are for a term greater than one
(1) year. In the event of any dispute as to the floor area in the Shopping Center or any potion thereof (other than
the Premises which shall be determined by the provisions of the Indenture of Lease), the substantially accurate
determination of Landlord sha# be binding upon the parties.
(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 January 1st imrnedlatal~ fo#owing the Commencement Date and ending December
31 st of such calendar year and each succeeding twelve (12) month pariod thereafter commencing in the Term;
provided, however, the first Tax Year shall comme~ce on the Commencement Date and terminate on the
immediately succeeding December 31st.
(f) If the Original Term commences or terminates (other than by reason of Tenant's default) on a day other
than the first or last day, respectively, of a Tax Year, Tenant's Tax Rent for such Tax Year shall be equitably
prorated.
(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, within forty-t'Ne (45) days after receipt of the refund, Landlord shall pay to Tenant that pementage of
the net refund after deducting all costs and expenses (including, but not limited to, reasonable attorneys' and
appraisers' fees) expended or incurred in obtaining such refund, which the portion of the Taxes in question paid by
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. ::ODMA\PCDOCS\WCONSHI\I ~13~2
Tenant beam 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 faxes ~n'd/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 o~all such reasonable fees, reasonable attorneys' and appraisers' tees and all
disbursements, courl costs arid other similar items paid or incurred by Landlord during the applicable Tax Year
with respect to such proces~,-,,~$ which is obtained by multiplying the aggregate of such sums by the fraction set
forth in Section 3.1(b) hereof. Landlord shall have no obragation to contest, object to or litigate the levying or
imposition of any Taxes and may settle, compromise, consent to, waive or othenvise determine in its discretion
any Taxes wtthout the consent or approval of Tenant.
(h) If at any time during the Term, as an addition to or substitute for Taxes, tn whole or in part, as same are
set forth tn SeCtion 3.1(a), and whether or not customa~ or tn the cor~temptatlon of the parties on the date of this
Lease, under the laws of any one or more jurisdictions tn which the Shopping Center is located, a tax, imposition,
charge, assessment, levy, excise or license tee is levied on, imposed against or measured, computed or
determined, in whole or in part, by: (1) rents payable hereunder (Fixed Minimum, Percentage, Tax and/or
Additional) or (2) the value of any lien placed against the Shopping Center or against the real property comprising
the Shopping Center or any obligations secured thereby, or (3) the economic value of the Shopping Centel;~ or any
portion thereof, or (4) if any other tax (except Landlord's capital Mock, income, inheritance, succession or estate
tax). imposition, charge, assessment, levy, excise or license fee which is not referred to in Section 3.1(a), however
described or denoted, shall be levied or imposed by am/such Jurisdiction, to the extent that the cost of afl)' of the
foregoing shall be imposed, either directly or Indirectly, on Landlord, such tax, imposition, charge, assessment,
levy, excise or license fee, shall be deemed to constitute "Taxes' for the purposes of this Section 3.1.
SECTION 3.2 Other Taxes
(at ' In addition to any other Taxes due pursuant to this Article, Tenant shall pay to the appropriate agency
when due or make payment to Landlord for all taxes and other governmental impositions imposed and/or
assessed upon Tenant's rent, lease and business operation, including without limitation, all sates tax, excise tax,
value added tax, business privilege tax, usa and occupancy taxes, taxes assessed for trash generation, special
services distdct taxes and other taxes es_~-e_ _~_--ed upon the consideration to be received by Landlord under this'
Lease, and other similar taxes (not i~ciuding, however, Landlord's income taxes) levied, imposed or assessed by
the state in which the Premises is located or any political subdivision thereof or other taxing authority upon any
rent payable hereunder. Whenever Tenant pays any consideration under this Lease, including without limitation,
Fixed Minimum Rent, Pementage Rent, Tax Rent and Tenant's share of Operating Costs, Tenant shall also pay to
Landlord, at the time of such payment, any taxes measured by the amount of consideration pa!d hereunder.
(bt Tenant shall also pay to the appropriate agency or to Landlord if Landlord is charged with the
responsibility of collecting such montes, prior to the I#na the same shall become delinquent or payable with
penalty, all taxes imposed and/or assessed upon Tenant's inventmT, furniture, bTade fixtures, apparelus,
equipment or leasehold improvements installed by Tenant or by Landlord on behalf of Tenant, and any other
p~'operty of Tenant.
ARTICLE 4
CONDITION AND REMODELING OF PREMISES;
CHANGES TO THE SHOPPING CENTER
SECTION 421 Condition of Premises
(at Tenant has had the opportunity to examb~ the Premises and hereby egmes to accept them in the 'as is'
condition existing on the Commencement Date. Tenant further acknowledges that hair-,er Landlord nor Agent has
made any representations es to the present or future condition of the Premises, the presence or absence of
Hazardous Materials (as defined in Section 21.23) therein or what items the prior occupant of the Premises is
required to or may leave in the Premises. Landlord shall not be liable for any inability to deliver possession of the
Premises to Tenant by the Commencement Date, except that any such inability shall extend the Commencement
Date by a period of time equal to one (1) day for ever7 day =;=~- the expected deliver)' date and the date Landlord
delivers possession; provided, however, if Landlord has not turned over possession by a date which is one year
from the date hereof, at Landlord's option this Lease shall be null and void and neither party shall have any liability
hereunder to the other.
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ODMP..\PCDOCS~WCONSH 1 ~1 13~2
SECTION 4.2 Remodeling of Premises; Construction Schedule Intentionally Deleted.
SECTION 4.3 Roof, Walls, Changes and Additions to Shopping Center
(a) Landlord hereby.reserves the exclusive right at any time and from time to time to use all or any part of the
roof, exterior wails and air space above the finished ceiling of the Premises for any purpose; to erect scaffolds,
protective barriers or other aids to construction on, around and about the.exter~o~ of the Premises, provided that
access and visibility to the Premises shall not be substantially denied. Landlord also reserves the right after
wrib'en notice to Tenant to enter the Premises (except that In the event of an emergency, no notice shall be
required), at any time and from time to lime to make such repaim, additions or alterations as it may deem
necessary or desirable to the Premises, to thebullding in which the Premises is contained, or the Shopping Center
in general; to shore the foundations and/or walls thereof and/or to install, maintain, use, repair, inspect and replace
foundations, columns, pipes, ducts, conduits and wires leading through or located adjacent to the Premises and
serving other parts of the Shopping Center.. Landlord shall use reasonable efforts to install such pipes, ducts,
conduits or wires In the space above Tenant's finished coiling (or if Tenant does not have a finished ceiling, then in
the space above the height where, in Landlord's opinion, a finished ceiling would othen~vtse exist), or another
location which does not materially interfere wiU3 Tenant's use of the Premises. Landlord's rights hereunder may
be exercised by Landlord's designee. Tenant shall not remove or ~amper with any such pipes or other apparatus
installed by Landlord.
(b) Landlord hereby ~'eserves the right at any time to make alterations or additions to, and to build additional
stories on, and to build any adjoining buildings in the Shopping Cen~er, including the building In which the
Premises are contained, and to conab'uct other buildings or improvements in the Shopping Center and Tenant
shall have no interest of any kind whatsoever In the said additions or additional stories or adjoining buildings.
Landlord also reserves the ~lght to reduce or enlarge the area of the Shopping Center by excluding portions of the
ground therel'rc~n or adding additional ground thereto from time to time, and whether or not so reduced or
enlarged, to construct multi-cleck elevated or subterranean parking facilities.
(c) If any excavation shall be mede or authorized to be made upon land adjacent to the Premises, Tenant
shall afford to the person causing or authorized to cause such excavation license to enter upon the Premises for
the purpose of doing such work as Landlord shall deem necessary to preserve the wall or the bulldthg of which the
Premises form a part from injury or damage and to support the same by proper foundations, without any claim for
damages or indemnification against Landlord er diminution or abatement of rent.
(d) Landlord reserves the right to install heating, ak-conditioning, venffia§ng equipment, kiosks, fountains,
benches, seating arrangements, promotional activities, seasonal displays, temperanj stores, amusement devices
and other amenities in certain porttoes of the Common ,areas selected by Landlord from time to time, all of which
shall be done at Landlord's sole cost and expense and without any approval and consent of Tenant.
(e) Tenant acknowledges that Landlord's implementation of its rights set forth in Section 4.3 may interfere
with access to or visibility of the Premises or the availability of cedain parking areas and Common Areas and '
Tenant agrees that the exercise of any such rights shall not constitute any grounds for an abatement of any rent
hereunder or be deemed an eviction or disturbance of Tenant's use and possession of the Premises nor shall the
same render Landlord liable in any manner to Tenant for any inconvenience, disturbance, loss of business or any
other occurrence arising from the exercise of any such rights.
SECTION 4.4 Right to Change Shopping Center and Reloca~e Tenant
(a) The purpose of the plan hereto annexed as ExhibR 'A' is solely to show the approximate location Of the
Promises and the present layout of Ihe Shopping Ce~tor, but Landlord does not warrant or represent to Tenant
that the Shopping Center will continue to be improved as shown thereon. Landlord hereby reserves the right at
any time and [rom time to time to make changes or revisions in such plan and the Shopping Center, including but
not limited to, additions to, subtractions from, and/or relocations or rearrangements of, the building, parking areas;
and other Common Areas show~ on such plan.
(b) Notwithstanding anything to the contrary contained in this Lease, in connection with any expansion,
enlargement or realTangeme~t of the Shopping Center or any aspect thereof, Lam:fiord shall have the right on one
or more occasions to require that Tenant relocate from the Premises to a location designated by Landlord
("Relocated Premises") which shall contain approximately the same number of square feet as currently contained
within the Premises with substantially similar traffic patterns and visibility within the Shopping Center, such
relocation to be implemented in accordance with the terms and conditions set forth below. Landlord shall advise
Tenant in writing as to the location of the Relocated Premises and the date by which Landlord w~ll require that
Tenant complete such relocation. Within thirty (30) days after receipt by Tenant of Landlord's notice, Tenant shall
advise Landlord in writing whether Tenant agrees to relocate to the Relocated Premises in accordance with the
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:ODMA~PCDOCS\WCONSH 1\' H3~2
provisions hereof. In the event Tenant fails to notify Landlord that Tenant will relocate within the aforesaid lime
frame, or fails to notify Landlord of its decision with respect to such relocation, or Tenant refuses to relocate, then
al any time thereafter Landlord may cancel this Lease upon fifteen (15) days' prior written notice to Tenant, in
which event this Lease will expire on such date as though th~ date set forth in the letter of cancellation was fixed
as the expiration date hereof, and Landlord shall have no liability to Tenant as a resurt of such cencellati~)n. If
Tenant agrees to so relocate, after notice from Landlord to do so, Tenant shall, at Landlord's cost and expense,
commence and diligently proceed to completion all work required to make the Relocated Premises suitable for
Tenant's business, physically relocate to such Relocated Premises and commence business therein not later then
the date specified in Landlord,s notice to Tenent which date shall not be less than ninety (90) days from the date of
said notice. Prior to performing such work, Tenant shall submit to Landlord for approval the plans referred to in
Section 4.2 disclosing all of Tenent's Work to be performed in the Relocated Premises and no such work shall
commence until such plans have been approved by Landlord. In any event, not later than the date specified for
the completion of such move, and whether or not Tenant shall have commenced business in the Relocated
Premises, Tenant shall vacatethe Premises and peaceably surrender possession thereof to Landlord in
accordance with the provisions hereof. Commencing as of the last day by which such relocation must be
accomplished, or if sooner, the day Tenant commences business in the Relocated Premises, all of Tenant's right,
title and interest in and to the Premises shall cease and terminate and from and after such date the Relocated
Premises shall be deemed demised hereunder in lleu of the Premises. At the request of Landlord, the pa~es shall
enter Into an amendment to this Lease which shall confirm the area and size of the Relocated Premises. The
Fixed Minimum Rent and Percentage Rent Gross Sales Base shall he amended automatically to bear the same
relationship to the Fixed Minimem Rent and Percentage Rent Gross Sales Base presently set forth in the Lease as
the existing area of the Premises beare to the area of the Relocated Premises.
ARTICLE 5
CONDUCT OF BUSINESS
SECTION 5.1 Use of Premises
(a) Except as otherwise specifically provided herein, commencing on the Commencement Date and inersaffer
for the balance of the Term, Tenant shall continuously occupy and use the Premises solely for conducting the
business specified In the Indenture of Lease as the permitted use, and Tenant will not use or permit or suffer the
use of the Premises for any other business or purpose and shall not be, or in any manner appear es, a discount,
off-price or manufacturer's outlet type of operation or business. Landlord would not have entered into the Lease
but for Tenant's covenant to continuously operate in the Premises as above said, and Tenant's failure to
continuously operate as above said shell he deemed a material breach of the Lease. In addition, Tenant agrees
that Tenant shall not operate or cause or pem'lit to be operated any catalogue, mail, or telephone order sales in or
from the Premises except the incidental sale of merchandise which Tenant fs permitted to sell over the cou*nter to
customers in the Premises pursuant to the pem-atted use set forth in the Indenture of Lease, nor shall Tenant ·
divert elsewhere any business which would ordinarily be transacted by Tenant at, in, on or from the Premises.
The autho~'zation of the use of the Premises for the business purposes set forth in the Indenture of Lease does
not constitute a representation or war~ty 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 Premises: eny public or
,private .a..ucl;Ion, or a~_y sal.e wh_k:h would indicate to the public that Tenant is bankrupt, iS going out of business or
nas lost its Lease. /enan~ shall ncr use or permit eny use of the Premises, except in a manner consistent With' the
general high standards of merchandising in the Shopping Center, nor shall Tenant's advertising indicate or imply
that Tenant is operating its business in a manner which is not consistent with the general high standards of
rriemhandising in the Shopping Ce~'lter. Nothing contained in this Section 5.1(b) shall affect or is intended to affect
Tenant's pricing POlicies.
(c) Notwithstanding anything contained herein to the contrary, including the provisions of the clause of the .
Indenture of Lease captioned "Use of Premises', Tenant is specifically prohibited from selling or distributing
tobacco "papers' pipes of the type and nature commonly associated with the smoking of marijuana (e.g. 'water
pipes"), 'roach clips', cocaine 'spoons' and all other types of smoker's novelty items, materials or paraphernalia
which are or may reasonably be construed to be, intended for use in connection with narcotics or Other unlawful
substances.
(d) Because the adequacy of the rental hereunder depends upon Tenant's Gross Sales whether or no~
Percentage Rent is payable hereunder, Tenant agrees that commencing with the Commencement Date and
thereafter throughout the Term, Tenant will continuously, actively end diligently operate or cause the permitted
business lo be operated in good faith and in an efficient businesslike and respectable manner maintain rig' n.the
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, ::ODMA\PCDOCS\WCONSH 1\1(' '3~ ~
Premises a full staff of employees and a full stock of seasonable merchandise of the quality, kind, type and
breadth which Tenant usually sells, and employing Tenant's best continual efforts and abilities to the end that the
maximum profltab~e Gross Sales which can reasonably be produced from the Premises shall be produced.
(e) Throughout the Term, Tenant shall cat!ss its store to remain open each day of the week during the hou?s
sat forth in Paragraph F of the Indenture of Lease. Tenant agrees that the hours during which Tenant is (Sbligated
to operate may be changed by Landlord from time to time provided that Landlord will not act in a discriminatory
manner.
(f) Tenant shall operate and/or advertise the business operated at or fTom the Premises only under the name
set forth in the ~ page of the Indenlura of Lease, unless and unbl the use of another name is permitted in writing,
by Landlord. Tenant ropreee~'lts that it is entitled to uss said name pursuant to all applicable laws.
SECTION 5.2 Storage
(a) Tenant shall warehouse, store and/or stock in the Premises only such goods, wares and merchandise as
Tenant is permitted and intends to offer for sale at retail in, at or from the,Premises. This shall not preclude
occasional transfers of merchandise to other stores of Tenant. If any. not located within the Shopping Center. Any
goods, wares, merchandise, equipment or other pmparty which are stored by Tenant other than within the
Premises ere stored at Tenant's sole risk and Landlord shall not be liable to Tenant in any manner whatsoe~er for
any loss. whether or not the result of Landlord's negligence or the negligence of any of its employees, servants,
agents or workmen.
SECTION 5.3 Additional Use ofthe Premises
Tenant covenants and agrees that Tenant at its own cost and expense:
(a) Will keep all exterior and interior store front surfaces clean and will maintain the rest of the Premises and
all corridors and loading areas Immediately adjoining the Premises in a clean and orderly condition and free of
Insects, rodents, vermin and other pests;
(b) Will not permit accumulation of any refuse, but will remove the same and keep such refuse in odor-proof,
rat-proof containers within the interior of the Premises shielded from the view of the general public until removed
and will not burn any refuse whatsoever but will cause all such refuse to be removed by such person or
companies, including Landlord. as may be designated in whUng by Landlord and will pay all charges therefor;.
(c) Will replace promptly with glass of a like kind and quality any plate glass or window glass of the Premises
which may become cracked or broken;
(d) Will not, without Landlord's prior written consent, place or maintain any merchandise or other articles in
any vestibule or entry of the Premises or within two (2) feet of any entrance from the Premises to the enclosed
mall. on the footwalks adjacent thereto or eisewh~ on the exterior thereo~.
(e) Will not use or permit the use of any apparatus for 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 olher advertising medium, including without limitation, flashing lights
or sean::h lights which may be heard or experienced outside of the Premises;
(f) V~qll keep atl mechanical apparatus free of vibration and noise which may be transmitted beyond the
confines of lhe Premises;
(g) Will not cause or permit objectionable odors to emanate or be dispelled from the Premises;
(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 penwit the parking of delivery vehicles so as to interfere with the use of any driveway, walk,
parking area, or other Cemmon Areas In the Shopping Center;.
(j) Will comply and will cause compliance with all present and tutum sta!utss, laws, rules, regulations,
guidelines, orders, ordinances, directives and other requkements of applicable federal, state and local
governmental authorities, commissions, boards and agencies and all present and fufurs requirements of common
law, with respect to (i) Tenant's obligations under this Lease. (ii) the Premises, (iii) Tenant's usa of the Premises
and Shopping Center, (iv) any work to be ~ in the Premises by Tenant, (v) the Americans with Disabilities-
Act of 1990 as it relates to the Premises and (vi) the environment, subject to the terms of Section 21.23 herein.
including, without limitation, those relating to the generation, use, handling, treatmenL storage, transportation,
release, emission, disposal, Remediatio~ or presence of any material, substance, liquid, effluent or product,
including, without limitation, hazardous substances, hazardous waste or Hazardous Materials (herein collectively
called "Environmental Statutes"). Tenant shall in a timely manner secure and keep in full force and effect all
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::ODMA.\PCDOCS\WCONSHI\I~' 13~2
permits, licenses and approvals required for the Premises and Tenant's use thereof and Tenant shall make and
file all notifications and registrations as required by Environmental Statutes. Tenant shall at all times comply with
the terms and conditions 0fany such permits, licenses, approvals, notifications and registrations. In addition,
Tenant shell also comply with all recommendations of the Factory Mutual Insurance Companies, the Insurance
Services Organization, or other similar body establishing standards for all risk insurance ratings with respect to the
use or occupancy of the Premises by Tenant, and will participate in periodic fire brigade instruction and drills at the
request of Landlord and will supply, maintain, repair and replace for the Premises any fire extinguishers or other
fire prevention equipment and safety ,equipment (including installation of approved hoods and ducts if cooking
activity is conducted on the Premises) required by the aforementioned rules, regulations and Insurance Services
Organization or other body in older to oblain insurance at the lowest available premium rate throughout the Term;
(k) Wtil not receive o~ ship articles of any kind excep{ through the facilities provided for that purpose by
Landlord end will not permit any delivery of goods, supplies, merchandise, or fixtures to or from the Premises to be
mede through any of the enclosed malls unless the Premises has no entrance other than on such a mall, in which
latter case Tenant shall use its best effods to schedule such deliveries outside Shopping Center business hours,
except with Landlord's approval in emergen, cy situations;
(I) Will light the show windows of the Premises and exterior signs each day of the year to the extent which
shall be required by Landlord but in no event later than one hour after the close of the Shopping Center;.
(m) Will keep all outside areas immediately adjoining the Premises Including; but not limited to, sidewall(s and
loading docks frae from ice arid snow, and Tenant hereby ag~c..~ that Tenant is sofely 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 its store or stores
in the geographical area in which the Shopping Center la located. In advertising its business in the Premises,
Tenant shall have the right to use the name and logo of the Shopping Center, but Tenant shall not sell any goods,
wares or merchandise bearing such name or logo without the prior written consent of Landlord. Landlord's
permission to use all or part of the name identifying the Shopping Center during the Term shall not be construed
aa permission to continua such use after such te~minalton of the Lease or regarding locations other than the
Premises, and Tenant agrees that such name or Other Identlticaticm of it or its business with the Shopping Center
shall not be used after the termination of the Lease or regarding a location other than ~he Premises. In all local
and regiocai advertising, in the event that Tenant specifies the location of any specific store it shall also specify, by
Shopping Center name, the Premises.
(o) Will not use the plumbing facilities for any other purpose than that for which they are constructed and will
not pe~*mit any foreign substsnce 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 kep{ clea~ and operable by Tenant at Tenant's own cost and expense. Tenant shale
keep the floor of the Premises and afl ~s thereof properly sealed and caulked so that water or other
substances in use in the Premises shall not leak from the Premises to any Common Area or adjoining stores or
stores located below the Premises;
(p) Will not permit any shopping calls in the Common Areas even if taken there by customers;
(q) Will not place or cause or permit to be placed within the Premises, pay telephones, vending machines
(except those for the exclusive use of Tenant's employees which are not visible to the public) or amusement
devices of any kind without the prior written consent of Landlord.
SECTION 5.4 Rules and Regulations
(a) Landlord reserves the right from time lo time to adopt and promulgate reasonable rules and regulations
applicable to the Pmmlses and the Shopping Centar which do not discriminate among the non-department store
tenants, 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 Tenaat and Tenant agrees thereupon to comply with
and observe all such rules and regulations. To the extent practicable, the same shall be applied uniEh'mty to
substantially all non-department store retail tenants of the Shopping Center.
(b) Landinrd's rights and remedies in the event Tenant shall fall to comply with and observe such rules and
regulations shall be the same as though such rules and regulations werw set [o .r~h in SecUon 5.3 of this Lease.
SECTION 5.5 Competition
(a) Tenant aCknowledges that Landlord's obtaining a fair and equitable rental depends upon Tenant
concentrating all of its business effo,'~s within the geographical area in which the Shopping Center is located, upon
Tenant's business at the Premises so as to maximize Tenant's Gross Sales, and Tenant further acknowledges
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::ODMA\PCDOCS\WCONSHI¥ 313~
that any activity.by Tenant within such geographical area in operating or participating in the operating of a similar
or competing business must necesssdly have an adverse effect on the volume of Gross Sales by Tenant at the
Premises to the detriment of Landlord and wilt deprive Landlord of the fair rental to which the parties agreed.
Accordingly, in the event that dudng the Term either Tenant or Tenant's management, or any' person or entity
controlled by Tenant or controlling Tenant, or controlled by the same person or entity, Or persons or entitles who
control Tenant. directly or indirectly owns, operates, is employed in, directs or serves any other place of business
under the same trade name as Tenant's business as sst forth herein, within a radius of five (5) miles from the
outside boundary of the Shopping Center, which distance shall be measured In a straight line without reference to
road mileage, then Landlord may eider (I) cancel this Lease upon thirty (30) days prtor writtan notice to Tenant, (ii)
include the Gross Sales of any such other place of business in the Gross Sales made from the Premises to
determine the Percentage Rent due under this Lease, as fully as though such Gross Sales had actually been
made from the Premises, or (tiD lac, mass the annual amount of Fixed Minimum Rent payable thereafter, and each
component thereof if the Fixed Minimum Rent is otherwise subject to increase, by an amount equal to the highest
Pementage Rent payable by Tenant in any calendar year prior to the opening of such other business. In the eYent
Landlord so elects, all of the provisions of Article 2 hereof shall be applicable to the Gross Sales of, and all the
books end records pertaining to, such competing store.
SECTION 5.6 Parking Facilities
(a) Tenant and its employees shall park their cars only in those portions of the perking area designated for
that purpose by Landlord and Tenant shall notify its employees of the requirement that they abide by this policy.
Tenant shall furnish Landlord with automobile license numbers assigned to Tenant's car or cars and cars of its
employees within ten (10) days of a request therefor and shall thereafter notifY,Landlord of any changes within ten
(10) days after such changes occur. In the avert that Tenant or its employees park their cars in areas other than
such designated parking areas, then Landlord after giving notice to Tenant of such violation shall have the right to
charge Tenant Twenty-Five Dollars ($25.00) per day per car perked in any areas other than those designated.
ARTICLE 6
GRANT OF CONCESSIONS
SECTION 6.1 Condition to Grant
(a) The provision against subletting elsewhere contaJned in this Lease shall be applicable so as to prohibit
Tenant from granting concessions without the consent of Landlord ~ 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 corlditions
that (i) each such concession w, hich may be granted by Tenant sha~ be subject to all the terms and provisions'of
this Lease; (ii) the Gross Sales from the opera, on of each such concession shall be deemed to be a pert of the
Gross Sales of Tenant for the purpose of determining the Pementage Rent payable to Landlord; (iii) all of the
provisions hereunder applying to the business of Tenant including, but not limited to, the provisions of Article 2
shall apply to each such concasslan; (iv) unless otherwise approved in writing by Landlord, such department Or
departmeuts shall be operated only as pert of the business operalton generally conducted by Tenant on the
Premises and under the advertised name of Tenant;, and (v) at least seventy-live percent (75%) of the sales floor
area of the Premises shall at alt times be operated diractfy by Ten'.m[
ARTICLE 7
COMMON AREAS
SECTION 7.I Control
(a) Ail Cemmon Areas in Or about the Shopping Cente~ shati be subject to the exclusive control of Landlord.
Landlord shall operate, manage, equip, police, light, surface and maintain the Common Areas all in such manner
as Landlord, in its sole discretion, may, from lime to time de~wmiae (including without limitation, the right to keep
any enclosed mall open only during the hours daslgnatad by landlord) and Landlord shall have the sole right and
exclusive authority to employ and discharge all personnel with respect thereto. Landlord hereby expressl~
re. serves the right from time to time to construct, maintain and operate lighting and other facilities, equipm~,nt and
signs on all of the Common Areas; to police and mainfain security for the Common Areas; to use and allow others
to use the Common Areas for a0y purpose; to change the size, area, level, location and arrangement of the
Common Areas; to build multistory and/or subterranean parking facilities; to regulate parking by tenants and other
occupants of the Shopping Center and their respective employees, agents, subtenants, concessionaires and
licensees; to enfome parking charges (by operation of meters, or otherwi,~e) wit~ appropriate provisions for
parking ticket validation for tenants; to dose temporarily, all or any i:x~fion of the Common Areas fOr the purpose
Create Date: April 21, 1999 2:45 PM 12 Pdnt Date: April 23, 1999 9:26 AM
::ODMA'~PCDOCS\WCONSH 1V 313~2
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 foregoing; to discourage non-customer parking; to
establish, modify and enlorce reasonable roles and regulations with respect to the Common Areas and th~ use to
be made thereof. For the Term, Tenant is hereby given the license in common with all others to whom Landlord
has or may hereafter grant rights to use the Common Areas as they may from time to time exist; provided.
however, that if such license shall be revoked at any time, in whole or in part, or the size, area, level, location or
arrangement of such Common Areas or the typ® of facilities at any time forming a part thereof be changed,
altered, rearranged or diminished, Landlord shall not be subject to any liability therefor, nor Shall Tenant be entitled
to any compensatiun or diminution or abatement of rent therefor, nor shall such alteration, rearrangement
revocation, change or diminution of such Common Areas be deemed a constroctive or actual eviction or othan,vlse
be grounds for terminating or modifying this Lease. In order to estabr~sh that the Shopping Center or any portion
thereof is and will continue to remain private properly 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, th Landlord's sole
reasonable discretion, fo close all or any portion of the Common Areas to such extent as, in the opinion of the
Landlord's counsel, may be legally sufficient to prevent such dedication thereof or acc/ual 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, access made, drives and utility lines, together with all
easements requir~l to effectuate such dedications, as it may see fit.
SECTION 7.2 Operating Costs
(a) Landlord (subject to reimbursement as set fodh in Section 7.3) at its expense will operate and maintain or
cause to be operated and maintained the Common Areas and the Shopping Center. For the purposes of this
Lease, "Operating Costs" shall be those costs of operating, repairing, managing, maintaining, and raplacing the
Common Areas and the Shopping Center of which the Premises forms a part In a manner deemed by Landlord to
be reasonable and appropriate including, but not limited to, ali costs and expenses, whether expended or incurred
of operating, repairing, replacing, lighting, cleaning, painting, and maintaining (including, but not limited to,
preventive maintenance) such Common Areas and the Shopping Center and Insuring the same (and ali costs
related to said coverage) with Such policies and companies end in such limits as selected by Landlord (including,
but not limited to, ali risk property insurance, liability insurance covering personal injury, deaths and property
damage with a personal injury endorsement covering false arrest, detention or imprisonment, malicious
prosecution, libel and slander, and wrongful entry or eviction, worker's compensation insurance, plate glass
insurance, contractual liability insurance and fidelity bonds but exdudlng the insurance referred to in Section 7.4
hereof); removing snow, ice, robblsh and debris; inspecting, policing, providing security and regulating traffic;
rental of sweepers, tnJcks and other equipmen!; depreciation (over a period not exceeding sixty (60) months) of
machinery and equipment and other non real estate assets used in the operation and maintenance of the
Shopping Center, maintaining, repairing and/or replacing of paving, roofs, curbs, walkways landscaping drainage,
on-site water lines, sanitary sewer tines, storm water lines, ~n Area heating, ventilating and air-conditionirig
systems, floors, floor coverings, canopies, skylights, fountains, escalators, electrical lines and other equipment
serving the prop~ on which the Shopping Center or any part thereof is constructed; heating, ventilating and air-
conditioning enclosed Common Areas at the same rate Landlord charges to tenants; uniforms and replacement of
u niforms; the rental of music programs, services and loudspeaker systems including the ~urnishing of electricity
therefor, all costs incurred by Landlord in compliance with any environrnentel or other ,similar laws, rules,
regulations, guidelines or orders, including the cost of removing Hazardous Materials from the Shopping Center;,
the cost of obtai~ng and operating public tmnsportaticn oi' shuttle bus systems used in connection with bringing
customers to the Shopping Center, stormwater management facilities; the gross compensation and ~nge benefits
of the mall manager, the mall office personnel and all other omsite personnel required to supervise and
accomplish the foregoing and an administrative charge equal to fifteen (15%) per cent of the total of ali Operating
Costs (exclusive of such administrative charge). Operating Costs shall not include depredation other than as
specifically re[erred to above. In the event of any dispute as to whether an item represents an expense or a
capital item, Lendlord's accounting practices shall be determinative and binding on the parties.
SECTION 7.3 Reimbursement of Landlord
(a) For each Accounting Period during the Original Term, Tenant shall pay to Landlord, as Additional Rent, as
Tenant's share of the Operating Costs. a sum equal to the product obtained by multiplying (1) the total Operating
Costs for such Accounting Period less all contributions thereto actually made by occupants of any Excluded Areas
by (2) a fraction, the numerator of which shall be the square feet of floor area of the Premises, and the
denominator of which shall be the average of the total amount of square feet of leasable floor area in the
Shopping Center in effect on the last day of each calendar quarter in the Term.
Create Date: April 21, 1999 2:45 PM 13 .P~'int Date: April 23, 1999 9:26 AM
::ODMA\PCOOCS\WCONSH 1\1 .13~2
(b) . On the first day of each calendar month during that portion of the Term falling within the first Accounting
Period during the Odginal Tem~ Tenant shall pay to Landlord, in advance, without demand and without any setoff
or deduction, as an esfimated payment on account of Tenant's share of the Operating Costs an amount equal to
one-twelfth (1112th) of the sum obtained by multiplying the square feet of floor area of the Premises by the
minimum annual charge ~oer square foo~ se{ fmltl in Paragraph I of the Indenture of Lease. If the Commencement
Date hereof shall no{ be the fir~ day of a calendar month, Tenant's payment of its proportionate share of
Operating Costs for the fractional month betwee~ the Commencament Date and the first day of the first full
calendar monlh in the Term shall be pmmtsd on a per diem basts (calculated on a thirty (30) day month) and shall
be paid together with the first pm/men{ of Fixed Minimum Rent
(c) Alter the first Acceunting Period, Tanant shait continue to paS,- such estimated amount of Tenant's
propodJonats share of Operettng Costs on the first day of each month in advance without demand and without any
sefoff or deduction, but the afuresaid estimatad amount of Tenant's share of Operating Costs may be adjusted and
revised by Landlord after the and of each Accounting Period during the Term on the basis of the projected
Operating Costs for the subject Accounting Period, within Laodlord's reasonable business judgment. Upo~
Landlord furnishing to Tenant a statement setting forth such revised estimated Operating Costs, Tenant shall pay
to Landlord such revised estimated sham in equal monthly installments, each such installment to be a sum equal
to one-twelfth (1112th) of such revised astimatad Operating Costs, ~ advance on the first day of each calendar
month thereafter until the next succeeding revision in such estimate.
(d} Foilowing the end of each Accoun~ng Period, Landlord shall fumtsh to Tenant a wdtten statement, in
reasonable detail covering the Amounting Period just expired showing the total Operating Costs for such
Accounting Period, the amount of Tenant's share thereof and payments made by Tenant with respect thereto. All
subsequent monthly payments on account of Tenant's share of Operating Costs made by Tenant dudng such
Accounting Period after receipt of such statement shall be applied by Landlord as payment on account of Tenant's
obligation for its share of Operating Costs for the next ensuing Accounting Period and shall not reduce Tenant's
obligation to pay the balance due Landlord pursuant to such statement. In making the computations as aforesaid,
Landlord's statement shall be prima facle evidence of Operating Costs.
(e) If Tecant's share of Operating Costs exceeds Tenant's payrneflta with respect to any Accounting Period,
Tenant shall pay to Landlord the deficiency within thlrt7 (30) days alter the date of the furnishing of'the statement
from Landlord; if Tenant's payments exceed Tenant's share of the. Opera~ing Costs Landlord shall credit such
excess to Tenant within thirty (30) days and Landlord may elect to apply such excess to any indebtedness to
Landlord. If such overpaymant Is for the last Accounting Period, Landlord shall refund such excess to Tenant
within thirty (30) days to the extent Tenant is not lodebted to Laodlord and provided Tenant has fully ped'ormed all
o! its obligations under this Lease and has vacated lhe Premises in accordance with the provisions hereof. In the
event Tenant is indebted to Landlord for any reason whatsoever, Landlord may deduct such amount owed from
such overpayment.
(f) If the Original Term commences or tsm-,inatea (other than by mason of Tananrs default) during an
Accounting Period, Tenant's obligation for Tenant's propo~or~ate share of Operating Costs for such Accounting
Period shall be equitably pro~ated.
SECTION 7.4 Proportionate Insurance
La)dd.., For_ e.a~h Ac~co_ un~g Period or ~ thereof in the Original Term, Tenant shall pay to Landlord, as
~onal ~[en~, as/ananrs share of the cost o~ Landlord's policy er policies of ail risk property insurance insuring
the Shopping Canter (in additian to the costs relating to the Common ,~eas as sst forth in Section 7.2) and
Landlord shall bill Tenant for same in the same manner as the Operating Costs as more parlioularly set forth'in
Sections 7.2 and 7.3 hereof.
ARTICLE 8
SIGNS; AWNINGS; CANOPIES; FIXTURES; ALTERATIONS
SECTION 8.1 Signs, Awnings and Canopies
(a) Tenant shall not place or maintain or suffer to be placed or maintained on the exterior of the Premises or
on the glass of any window or door of the Premises which shail be visible from the exterior thereof or within three
(3} feet of any such glass (other than neet~y lettered signs of reasonable size placed an the floor of the display
window identilying articles offared for sa~e and the price thereof) ar~ sign, awning, canopy, decoration, ettering
advertising matter or any other thing without in each instance first obbalning Landlord's written approval thereof;,
and Tenant further agrees to design and fo maintain such sign, decoration, lettering, advertising matter or other
Create Date: April 21, 1999 2:45 PM 14 Print Date: April 23, 1999 9:26 AM
, ::ODM.A~PCDOCS\WCONSHI~' .'113~2 , .
thing as may be approved in good condition and repair at all times in compliance with the requirements o[' the
"Sign Regulations' attached hereto, made part hereof and marked Exhibit 'B'.
(b) ' Tenant shall not paint or decorate any part of the exierlor of the 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. ' *
(c) Tenant shall instal/and maintain at all times, subject to the other provisions of this Section, displa3(s of
seasonable memhandise in the show windows (if any) of the Premises; and Tenant further agrees that all artiCles
and the arrangement, style, color and general appearance thereof, in the interior of the Premises which shall be
visible from the exterior thereof, including, but not limited to, window displays, advertising matter, signs,
memhandise and store fixtures, shall be maintained in the Premises so as to keep with the character and
standards of the Shopping Center.
SECTION 8.2 Trade Fixtures
(a) Alt trade fixtures, signs and other personalty hereafter installed by Tenant in the Premises (or any part of
the Shopping Center as permitted) shall be new or reconditioned and 'like new,' shall be and ramein the property
of Tenant and shall be removed by Tenant at the expiration o~ earlier termination of the Term provided that: (I)
Tenant shall not at such time be in default under this Lease and (ii) Tenant shait promptly restore the damage
done to the Premises by the installation and/or removal thereof. Should Tenant fail to so remove Tenant's trade
fixtures and/er to so restore the Premises, Landlord may do so, collecting upon demand at Landlord's option; the
cost and expense thereof as Additional Rent. Any such trade fixtures which are not removed by Tenant at or prior
to any termination of this Lease including, but not limited to, a termination by Landlord pursuant to this Lease, shall
unless Landlord gives Tenant notice to remove any' or all of such trade fixtures, be and become the property of
Landlord (without any obligation by Landlord to pay compensation ~ such trade fixtures). In the event Landlord
gives Tenant such notice to remove any or all of such trade fixfuras, Tenant shall promptly remove such of the
trade fixtures 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 air-conditioning,
heating, lighting, electrical and plumbing equipment installed by Tenant in'the Premises, or any wiring or other
apparatus related thereto.
SECTION 8.3 Alterations and Mandatory Refurbishment
(a) Tenant may, without Landlord's consent, but with prior notice to Landlord, make alterations to the interior
of the Premises which do not alter, modify or in any other manner whatsoever affect the structural portions of the
Premises and/or the roof of the building of which the Premises shafi form a part' and/or the exterior of the Premises
(including but not limited to the storafront) and/or the structural integrity of the building of which the Premises shall
form a part, and/or the plumbing, electrical, heating, ventilating, air-conditioning, or mechanical systems or
installations in the Premises, provided that any such single alteraUon (or series of such related alterations) does
not involve a cost in excess ofTen Thousand Dollars ($10,000.00), and provided further that any such atteratidnS
shall conform to the then current design criteria for the Shopping Center. Tenant agrees that it will not make any
other alterations (whether structural or othenvise), improvements, additions or changes to the intedor or exterior of
the Premises (including, but no{ limited to. the sto,'*e~orR of the Premises) during the Term without in each instance
obtaining Landlord's prior written consent. Landlord's consent shall not be unreasonably withheld as to interior
nonstructural alterations. Furthermore, Tenant will not. except for installation of fixtures or other work specified on
Tenant's approved plans and specifications rafaned to in Section 4.2 hereof or to the extent permitted by ihe first
sentence of this Section 8.3(a), cut or drill into or secure any fixture, apparatus or equipment of any kind to any
part of the Premises without in each instance first obtaining Lmxtlorcrs written consent. Together with each
request for such consent, Tenant shall present to Landlord detafied plans end specifications for such proposed
alterations, improvements, aedifior~s or changes as required by Section 4.2 hereof and Tenant shall comply with
such section in performing such approved alterations.
ARTICLE 9
MAINTENANCE AND REPAIR; SURRENDER OF PREMISES
SECTION 9.1 Repair and Maintenance by Tenant
(a) Tenant shall at all times at its own expanse keep and maintain all portions of the Premises not required to
be maintained by Landlord pursuant to Section 9.2 hereof, in good order and repair and in a neat, safe, clean and
orderly condition, including, but not limited to, reasonable parindic painting and making all nonstructural ordinary
and extraordinary, foreseen and unforeseen repairs and replacements to the Premises and its component
systems. The foregofn[; sentence shall obligate Tenant to repair, maintain and replace, without limitatfon, all
Create Date: April 21, 1999 2:45 PM 15 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I '13~2
entrances to the Premises, Ihe elorefronL the glass in all doors and windows of the Premises, all interior portions
o! the Premises, all trade fixtures, ru(tures, signs and all walls thereof (ex~;ept t~ the exta0t set forth in Sec[ion
g.2(a)), as well as plumbing, electrical, sprinkler, heating, venUlafiun and air-conditioning systems, escalators end
eleva~.rs, if any, mechanical systems, and sewer lines within the Premises, or under the floor slab thereof,
provided the subject systems or components of said systems exclusively serve the Premises. Tenant shall also
maintain free flow to the main service llne, ami shall repair, maintain and replace all other apparatus or equipme~
which were installed by Tenant outelde the Premises. Tenant shall not overload the electrical wiring serving the
Premises or within the Premises, and will install at its own expanse but only after obtaining Landlord's written
approval, arty additional electrical wiring which may be required in coonection with the Premises. If Landlord,
Agent or affiliates thereof, elect to provMe heating, ventiieting end air-conditioning inspection, adjustment, cleaning
and repair services to Tenant. Tenant shall utilize such services and pay for the same at rates which are
competitive within the same geographic area for similar sen~lces performed by others; if Landlord elects not to
perform such safvices, the Tenant shall contract for such sen/ices with a qualified service contractor.
(b) Tenant will repair prompb¥ at its own expense any damage (whether structural or nonstructural) to the
Prarnlses caused by any construction or alterations performed by Tenant or bringing into the Premises any
property for Tenant's use, or by the installation or removal of such p~operty, ragardiass of fault or by whom such
damage was caused, unless and then to the extent caused by the rregligance of Lendlord or its servants or
employees.
SECTION 9.2 Structural Repairs by Landlord.
(a) Except as otherwise provfded by 9. l(b), structural columns, structural portions of the floors (excluding
floor tile, carpet or other floor coverings), the roof of the Shopping Center and exterior walls thereof 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 Premises by reason, in whole or in
part, of the negligent act or failure to act by Tenant or Tenant's agent, servants, employees, contractors or
subcontractors, or by reason of any use of the Premises by Tenant which is not normal wear and tear, Landlord
may collect the cost of such repairs, as Additional Rent, upon demand. For the purpose of this Lease, any
difference in [ioof level, shifting of ~ slab, or deviation In finished floor height resulting from the insertion or
construction of an expansion joint or sfl'Ip in the floor slab shall not be deemed a structural defect requiring repair
by Landlord, but rather, a normal construction Ixactice which shell be Tenant's responsibility to appropriately plan
for in its construction and use of the Premises. The provisions of this subsection shall not apply in the case of any
casualty or condemnation in which event the provisions of Article 16 or 17, as the case may be, shall control.
(b) If, without Lendlord's prior co~sent, Tenant perfoons eny alterations, edditions, improvements, changes,
affixatfons of chattels or other work which affects the structural portions of the Premises and/or the roof of the
building of which the Premises ara a part and/or that portion of the exterior of the Shopping Center which Landlord
is obligated lo repair pursuant to Section 9.2[a) or which alfects the struc.~ral integrity of the building of which the
Premises form a part, such action by Tenant shall release and discha'ge. Landlord as of the cow3mencement of
such alteration, addition, improvement, affixaflon or other work of and Eom s~ch repair obligation and thereafter
Tenant agrees fo be solely reeponsible for the maintenance, repair aod replacement of any or all such stnJctural
portions, roof, extedor and building which have been affected as aforesaid; provided, in the event Tenant shall
defaul~ in the perrom'tence of such rasponsibliith~s to Landlord's satisfaction (or at Landloro"s option regardless of
Tenant's performance) Landlord. in addition fo Landkad's other remedies under this Lease, at law or in equity.
may (but shall rtot be obligated to) core such &=;'suit at Tenant's cost without arty liability of Landlord, its agents,
servants, employees, contractors or subconb'acfore for damage to Tenant's merchandise, fixtures or other
property or to Tenant's business by reason of Tenant's actions hereunder, or by reason of Lendiord's actions to
~3~:fy the damage caused by Tenent hereunder, urtiesa and to the extent further damage is caused by the
negligence of Landlord or its servants or employees. For the purposes of the foregoing, If Tenent performs any
such alterations, additions, improvements, changes, afflxatfons or other work in a manner Inconsistent with
Landlord's prior consent there{o, such work shall be deemed to have been performed without Landlord's consent.
SECTION 9.3 Surrender of Premises
(a) At the expiration or earlier termination of the Ten'n, Tenant shall peaceably surrender the Premises, broom
clean, ~'ee of debris, in good order, condifioo and state of repair as required hereby, ordinary wear and tear
excepted to the extent the Premises is not required fo be repaired and/or maintained by Tenant and damage by
casualty excepted to the extent that the same is required to be covered by Lendlord's all risk property insurance
and Tenant shag surrender all keys for the Premises to Landlord and shall notify Landlord in writing of all
combinations of locks, safes and vaults, if any, in the Premises. Tenant shall comply with the provisions of
Section 8.2 respecting the removal of its trade fixtures before surrendering the Premises.
· Create Date: April 21, 1999 2:45 PM 16 Pdnt Date: April 23, 1999 9:26 AM
::OOMA\PCDOCS\WCONSH 1\1, ,13',2
(b) Whether or not approved by or subject to approval of Landlord, all alterations, improvements, additions, or
changes made by Tenant and all air-conditioning, hseUng, tightfng, electrical and plumbing equipment and fixtures,
and ali wiring and other apparatus related to air-cond~oning, heating, lighting, electrical and plumbing equipment
installed by Tenant (whether such be Installed prior or subsequent to the Commencement Date) at the Premises
(whether or not such equipment and Itxtures ere affixed to the Premises as lo be, removable without destroying the
chattel{ themselves or the property to which they are affixed and whe{her or not such equipment and fixtures ara
real property or personalty) shall remain upon the Premises at the expiration or ea. rilar termination of the Term and
shaft become the property of Landlord Immedlatsly upon the insfalfation thereof and shall remain the property Of
the Landlord withou~ ~ obltgation of Landlord to pay compensation therefor.
ARTICLE 10
INDEMNIFICATION; SUBROGATION
SECTION 10.1 Indemnification and Waiver of Claim
(al Tenant will defend and will inderrmify Landlord and Agent and save them harmless from and against any
and all claims, actions, damages, tiabllity and expense (including. but not limited to. reasonable attorneys' fees and
disbursements) connected with the loss ot lee. personal injury or damage to property or business arising from,
related to, or in connection with the perfom3ance of Tenant's Work. the occupancy of the Premises or occasiOned
wholly or in part by act or omission of Tenant. its co~1~, subcontractors, subtenants, licensees or
concessionaires, or its or their respective agents, sen, ants or employees on any part of Landlord's property or the
Shopping Center or by mason of Tenant's breach of ar~/of the provisions of this Lease. Tenant shall not,
however, be liable for damages or Injury occasioned by the negtigence or willful misconduct of Landlord, Agent or
their agents, employees, contractors or servants, unless such damage or injury arises from perils against which
Tenant is required by this Lease to insure.
(b) Unless and then solely to the extent such damage is caused by the gross negtige~ca or willful rniscenduct
of Landlord, Agent, or their respective agents, servants, and emptoyees, neither Landlord, Agent nor their
respective agents, servants, employees or contractors shall be IPable for, and Tenant, in consideration of
Landlord's execution of this Lease, hereby releases all claims 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 mitstion, the
Premises and the building of which the same is a part), including, but not limited to, such claims for loss of life,
personal injury or damage resulting frarn (1) any defect irt or failure of pium~ing, 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 burating, leaking or running of any lank, washstand, water closet, waste
pipe, drain or any other pipe or tank in. upon or ~bout lite Shol3ping Center; (4) the becking up of any sewer pipe;
(5) the escape of steam or hot ~ (6) wa~r, srmw or ice being upr~ or coming through the roof or any other
place upon or near the Premises or the building of which the same is a part or othe~wtse; (7} the felling of any
fixture, piaster, ceiling tile or stucco; (8) broken glass; (9) any act or o~ of other tenants or other occupants
of the Shopping Center. The foregoing waiver and release is intended by Landlord and Tenant to be absolute.
unconditional end wtthout exception and to supersede any spac~rm repair obligation imposed upon Landlord
hereunder.
(c) Landlord will defend and indemnify Tenant and save Tenant harmless from and against any and all claims,
actions, damages, liability and expense (im~fudtng, but not limited to. attorneys' fees and disbursements) in
connection with the loss of life, personal injury or damage to property arising from, related to. or in connection with
Landlord's willful misconduct or negligent acts or omies~s in the Common Areas of the Shopping Center.
Landlord shall not be liable for damages or injury occasioned by the negligence or willful misconduct of Tenant, its
agents, employees, contractors or
SECTION 10.2 Subrogation
(al In the event the Premises or its contents are damaged or destroyed by fire or other insured casualty, (il
Landlord, to the extent of the coverage of Landtom"s policies of all risk property insurance, hereby waives its
rights, if any, against Tenant with respect to such damage or destruction, even if said fire or other casualty shall
have been caused, in whole or in part. by the negligence or witiful misconduct of Tenant. its agents, sen/ants or
employees, and (ii) Tenant, to the extent of the coverage of Tenant's policies of all risk property insurance, hereby
waives its rights, if any, against Landlord with respect to such damage or destruction, even if said fire or other
casualty shal~ have been caused in whole or in part. by the negligence or wilitul misconduct of Landlord, its agents,
servants or employees.
Create Date: April 21, 1999 2:45 PM 17 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I~ 13~2
ARTICLE 11
INSURANCE
SECTION 11,1 Insurance .
(a) Tenant will keep'in force in cornpa~les licensed to do.business in the state where the Shopping Center is
located at Tenant's expense at all times during the Term and during such other times as Tenant occupies the
Premises or any part thereof..
1. Commemlal general liability insurance with respect to the PremiSes, thi~ SideWalks, if any, abutting and'
adjoining the Premises, and the bssin~s ope,~,l=d by Tenant and any subtenants, licensees and concessionaires
of Tenant in or from the Premises with a minimum combined single limit of Two Million Dollars ($2,000,000.00),
including insurance against assumed or cent--actual liability under this Lease, on account of bodily injury, death,
property damage or personal injury as the result of any one accident or disaster. If the nature of.Tenant's
operation Is such as to place any or all of Its employees under the coverage of local worker's compensation or
similar statutes, Tenant shall also keep In force, at its own expense, worker's compensation or similar insurance
affording statutory coverage and containing statutory limits. Such llabitity insurance shall, in addition, extend to
any liability of Tenant arising out of the indemnities provided In Section 10.1 hereof.
2. All risk property insurance covering (a) all of Tenant's stock in trade, trade fixtures, furniture, furnishings,
such equipment as is not affixed to the Premises, and (b) Tenant's iotarast in all of the improvements and
betterments installed in the Premises by Tenant, in each case to [he extent of at least eighty percent (80%) of their
collective replacement value, without coinsurance.
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 or as may be standard and
customary in the industry.
4. If Tenant sells or dispenses alcoholic beverages, Tenant shall maintain liquor liability insurance with limits
of not less than Two Million Dollars ($2,000,000.00);
(b) Upon request, Tenant will deposit with Landlord policies of insurance required by the provisions of this
Section 11.1, or certificates thereof, together with satisfactory evidence of the payment of the required premium or
premiums thereof. The insurance required hereby may be maintained by means of a policy or policies of blanket
Insurance so long as the provisions of this Sectioo are fully satisfied and provided, further, that such policies
specifically name Tenant's business at the Premises and Tenant provides Landlord with a certificate of such
insurance.
SECTION 11.2 InsuranCe Provisions
(a) All policies of insurance required to be cewled by Tenant shall provide that the policy shall not be subject
to cancellation, termination or change excep~ after thirty (30) days prior written notice to Landlord and the policy
referred to in Section 11.1 (aX1) shall name Landlord and arty other entities as may be from time to time reqbestad
by Landlord including, but not limited to, Landlord's mortgagee(s), as an additional assured as their respective
Interests may appear. In addition, such policies of ~surance shall co~tain a provision substantially as follows: 'it
!s understood and agreed that the insurance afforded by this policy or policies for more than one named insured
shall no.t operate to increase the limits of the companies' llab~ty, but otherwise shall not operate to limit or void the
coverage of any one named insured ss respects claims against the same named insured by any other named
insured or the employees of such other named insured."
SECTION 1'1.3 Effect on Insurance
(a) Tenant will not do, omit to do, o~ suffer to be done or keep or suffer to he kept anything in, upon or about
the Premises 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 all risk property or
liability insurance premium rating or which ~ 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 Premises shall cause, by itself or in combination with other circumstances existing at the
Shopping Center, the premium rate of all risk properly or other insurance on the Premises or other property of the
Shopping Center in companies acceptable to Landlord to be Increased beyond the established rate from time to
time fixed by the appropriate underwriters with regard to the use of the Premises for the purposes permitted under'
this Lease or to such other prol~ in the Shopping Center for the use or uses made thereof, Tenant will pay the
amount of such increase or, in the event that other Cimumstances existing at the Shopping Center shall have
contributed to such increase, such equitable portion of such increase as reasooably determined by Landlord, as
Create Date: April 21, 1999 2:45 PM 18 Print Date: April 23, 1999 9:2(~ AM
::ODMA\PC DOCS\WCONSH 1\1 13',2
Additional Rant upon Landlord's demand and will thereafter pay the amount of such increase, as the same may
vary from time to time, with respect to every premium relating to coverage of the Pramlses during a period falling
within the Term until such increase is eliminated. In addition, If applicable, Landlord may at its option rectify the
condition existing on the Premises which caused or was a contributing cause of the increased premium rate in the
event that the Tenant should fail to do so and may charge the cost of such action to Tenant as Additional 'Rent,
payable on demand. In determining whether increased premiums are the result of Tenant's use of the Premises, a
schedule, issued by the organization making the Insurance rate on the Premises, showing the various components
of suc.h rate, shall be conclusive evidence of the several items and charges which make up the all risk property
insurance rate on the Premises.
(b) If for any reason whatsoever Tenant falls to provide and keep in fome any or all of the insurance policies
set forth in Section 11.1 hereof, then in such event Tenant shall indemnify and hold Landlord harmless against any
loss which would have been covered by such insurance.
ARTICLE 12
UTILITIES
SECTION 12.1 Utilities
(a) Tenant shall be solely responsible for and promptly pay all charges for heat, water, electricity, sewer rents
or charges, and any other utility used or consumed In the Premises or in providing heating and air-conditioning to
the Premises, including in each instance, all sales and other taxes applicable to the sale or supply of such utilities,
said responsibility commencing on the earlier of the Commencement Date or the date Tenant first enters the
Premises for any reason. Should Landlord elect or be required to supply or make available any utility used or
consumed at the Premises, Tenant agrees to purchase and pay for same, as Additional Rent, every month in the
Term. Dudng the Term, Tenant agrees to purchase fi.om Landlord and pay for electricity to be used by Tenant at
the Premises in accordance with Exhibit 'C' attached hereto. During the Term, Tenant agrees to purchase fi.om
Landlord and pay for the beating and/or cooling medium supplied by Landlord to the Premises, to be used by
Tenant for heating and/or air-conditioning the Premises, as Addi6onat Rent, upon presentation of bills therefor, at
the rate set forth in the paragraph in the Indenture of Lease captioned 'HVAC Charge'.
(b) Tenant shall pumhase and install a water meter prior to the Commencement Date, in accordance with
Landlord's specifications, at Tenant's sole cost and expense.
(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 reot
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 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 connec~:m or system.
(d) Landlord may, after thirty (30) days' notice to Tenant, cease to furnish any one or more of the utility
services to the Premises, without any responsibility to Tenant, except to connect Tenant's distribution ~acilities
therefor with another source for the utility service so discontinued. In addition, Landlord reserves the right to cut
off and discontinue. upon ~htrty (30) days' notioe to Tenant, furnishing any heating, ventilation, air-conditioning or
other utility services furnished by Landlord and to remove its property at any.time when Tenant has failed to pay
any am. ount (whether as rent or otherwise) due under th s Lease. Landlord shall not be liable for any such
discontinuance and the same shall not constitute a termination of this Lease or an eviction of Tenant.
(e) 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, acts of C_..-:-:-:-:-:~, or public enemy, or any other cause, whether similar or
dissimilar to the aforesaid. Landlord shall, however, use reasonable elfo~ts to m~tore the discontinued service in
all situations which are not due to the fault of Tenant hereunder'
SECTION 12.2 Application For Utilities
(a) Tenant shall make all appropriate applications to the local utility companies at such times as.shall be
necessary to insure utilities being available at the Premises no later than the Commencement Date and pay all
required deposits, connection fees and/or charges for meters within the applicable time period set by the local
utility company.
Create Date: April 21, 1999 2:45 PM 19 Print Date: April 23, 1999 9:26 AM
::ODMA~PCDOCS\WCONSH 1~ ;13~2
SECTION 12.3 Operation of Heating and Air-Conditioning
(a) Tenant must install, and operate heating and/or cooling equipment in accordance with Landlord',= Design
Criteria (if any) to maintain store temperatures at such temperatures as will prevent the freezing or bursting of
pipes and the draining of heated or chilled air, as rite case may be, from any enclosed sections of the Shopping
Center.
SECTION 12.4 HVAC Charge Defined
(a) All sums, if any, to be paid by Tenant to Landlord for the heating and/or cooling medium supplied by
Landlord to the Premises in accordance with this .,NlJcle 12 are collectively herein referred to as the "HVAC
Charge'.
ARTICLE 13
ESTOPPEL CERTIFICATE; SUBORDINATION; ATTORNMENT
SECTION 13.1 Execution of Estoppel Certificate . .
(a) At any time, and from time to time, upon the written request of Landlord or any mortgagee, Tenant, within
twenb/(20) days of the date of such written request, agrees to execute and deliver to Landlord and/o¢ such
mortgagee, without charge and in a form sattsfacto~ to Landlord and/or such mortgagee, a written statement:. (i)
ratifying this Lease; (ii) confirming the commencement and expiration dates of the Term; (iii) ce~fying that Tenant
is In occupancy of the Premises, and that the Lease is in full force and effect and has not been modified, assigned,
supplemented or amended except by such wrtf~gs as shall be stated; (iv) certifying that all conditions and
agreements under this Lease to be satisfied or perfom3ed by Landlord have been satisfied and perfurmed except
as shall be stated; (v) certifying that Landlord is not in default under the Lease and there are no defenses or
offsets against the enforcement of this Lease by Landlord, or stating the defaults and/or defenses clashed by
Tenant; (vi) reciting the amount of advanced rent, if any, paid by Tenant and the date to which such rent has been
paid; (vii) reciting the amount of security deported with Landlord, if any, and (viii) any other information which
Landlord or the mortgagee shall reasonably require.
SECTION '13.2 Failure to Execute Estoppel Certificate
(a) The Paiiure of Tenant to execute, ac~nowfedge and deliver to Landlord and/or any mortgagee a statement
in accordance with the provisions of Section 13.1 within the period set forth in Section 13.1 shall constitute an
acknowledgment by Tenant which may be relied upon by any person holding or intending to acquire any interest
whatsoever in the Premises or the Shopping Center that this Lease has not been assigned, amended, changed or
modified, is in full force and effect and that the Fixed Minimum Rent, Tax Rent, Tenant's sh'ar~ of Operating Costs,
HVAC Charge, Tenant's share of Landlord's all risk propert7 insurance, Percentage Rent and Additional Rent
have been duly and fully paid. and not beyond the respective due dates immediately preceding [he date of the'
request for such statement and shall constftute es 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 Lease by Landlord which may exist
prior to the date of the wfilten requesL
SECTION t3.3 Subordination and Attornment
(a) Tenant agrees: (i) that, excep~ as hereinafter provided, this Lease Is, and all of Tenant's rights hereunder
are and shall always be, subject and subordinate to a~y mortgage, ground lease pursuant to which Landlord has
derived its interest in the Shopping Center, installment sales agreement or other instrument of eflcumbrance
heretofore or hereafter placed upon any or all Of Landlord's lessore or Landlord's estate in the Shopping ~enter
and all renewals, replacements, consolidations, amendments and extensions thereof (collectively called
"Mortgage") and to ell advances made or to be made thereunder and to the interest thereon; and (ii) that in case
Landlord's interest under the Mortgage shall terminate for any reason and if the homer of any such Mortgage
("Mortgagee*) or if the grantee of a deed in lieu of E~rectosure, or if the purchaser at any foreclosure sale or at any
sale under a power of sale contained in any Mortgage shall at its sole option so request, Tenant will attorn to, and
recognize such Mortgagee, grantee or purchaser, as the case may be, as Landlord under this Lease for the
balance then remaining of the Term, subject to all terms of this Lease; and (iii) that the aforesaid provisions shall
be self-operative and no further instrument or document shall be necessary unless required by any such
Mortgagee, grantee or purchaser.
(b) Notwithstanding anything to the contrary set forth above, any Mortgagee may at any time subordinate its
Mortgage to this Lease, without Tenarff's consent, by execution of a writlen document subordinating such
Mortgage to this Lease to the extent set forth therein, and thereupon this Lease shall be deemed p;ior to such
Create Date: April 21, 1999 2:45 PM 20 Print Date: April 23, 1999 9:26 AM
::O DMA\PCDOCS~WCONSHI~ 813~2
Mortgage to the extent 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 same rights with respect to this Lease as though this Lease had been executed and a memorandum
thereof recorded prior to the execution, delivery and recording of the Mortgage and as though this Lease had been
assigned to such Mortgagee.
(c) Should Landlord or any Mortgagee, grantee or purchaser desire confirmation of either such subordination
or such affomment, as the casa may be, Tenant upon written request, end from time to time, will execute and
deliver without charge and in form satisfactory to Landlord, the Mortgages, grantee or purchaser all instruments
and/or documents In recordable form that may be requested to aclmowl,~-,e s'~- .-,....-,= .....
to attom which --~,-...--.,-----.,,-- ~- . _ --~ ,-,.,, o~uu~u.~auon ano/oragreement
· , ...... ,,,~,,,a ~,r,.vm uocumems snail provide that any such M-ga
,..tg gee, grantee or purchaser shall
recognize all rights of Tenant hereunder so long as Tenant shall not be in default hereunder.
SECTION 13.4 Landlord's Rights of Alienation
(a) *
Landlord reserves the right to sell, lease or sever the ownership of or title to the various sections of the
Shopping Center and/or to plane saperete Mortgages on said sections, Tenant shall execute from time to time
such instruments reasonably required by Landlord and its mortgagee to effectuate the provisions of this Section
13,4.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
SECTION 14.1 Assignment and Subletting
(a) Tenant shall not voluntarily, Involuntarily, or by operation of law, assign, transfer, mortgage or otherwise
encumber (herein collectively referred to as an 'assignment') this Lease or any interest of Tenant herein, in whole
or in part, nor sublet the whole or any part of the Premises, nor permit the Premises or any part thereof to be used
or occupied by others, without first ob~inlng in each and every Instance the prior written consent of Landlord,
which consent Landlord shall be entitled to withhold at Landlord's sole diacretton. Any consent by Landlord toan
assignment or subletting or use or occupancy by others shall be held to apply only to the specific transaction
thereby authorized and shall not constitute a waiver of 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 or liquidator, or personal representative of Tenant, nor shall the references anywhere in this
Lease to subtenants, licensees and concessionaires be consbued as a consent by Landlord to an assignment.
(b) If this Lease or any intsrest herein be assigned or if the Premises or any part thereof be sublet or used or
occupied by anyone other then Tenant, whether Landlord's consent is required hereby or has been given or
denied for such assignment, sublease, use or occupancy by others, Landlord may nevertheless collect rent
(including, but not limited to, Fixed Minimum Rent. Pemeetsge Rent. the HVAC Charge, Tax Rent, Tenant's
.proportionate share of Landlord's Operatfl'tg Costs, Tesent's proportionate share of Landlord's alt risk properly
insurance and Additional Rent) from the assignee, sublessee, user or occupant and apply Ihe net amount
collected to the rents herein reselved, and furthermore in any such event Tenant shall pay to Landlord monthly, as
Additional Rent, the excess of the consideration recehred or to be received during such month for such assignment
sublease, or occupancy (whether or grot denoted as rant) over the rental reserved for such month in this Lease
applicable to such portion of the premises so assigned, sublet or occupied. No such assignment, sub/erring, use,
occupancy or collection
shall be deemed a waver of the covenant herein against assignment, subleting or use or
occupancy by others, or the acceptance of the assignee, subtenant.
· user or occupant as Tenant hereunder, or
constffu!e a release of Tenant from the further performance by Tenant of the terms and provisions of this Lease.
(c) If this Lease or any interest of Tenant here~n be assigned or if the whole or any part of the Premises be
sublet or used or occupied by others, - ' -
nevertheless remain after hawng obtained Landlord's prior written consent thereto, Tenant shall
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. In addition to Landlord's right to approve or
disapprove the proposed sublease or assignment as sat forth above Landlord shall have the right, to be
exercised by giving notice to Tenant within thirty (30) days after receipt of Tenant's request to assign or sublet, to
recapture the Premises, or portion thereof described in the proposed sublease. If notice of such recaptut'e is
given, it shall serve to cancel and terminate this Lease with respect to the space involved or, if the proposed
sublease or assignment covers the entire Premises and Term, it shall serve to cancel and terminate the Lease, in
either case as of the thirtieth (30th) day after the data of Landlord's notice'and a~ ~ully and completeiy as if that
date had been definitely fixed as the expiration of the Term. If this Lease be cancelled pursuant to the terms
hereof with respect to less than the entire Premises, the Fixed Minimum Rent shall be adjusted on the basis of the
proportion of the total area retained by Tenant to Tenant's total area originally demised hereby, and the Lease so
Create Date: April 21, 1999 2:45 PM 21 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1¥ ~13~2
amended shall continue thereafter in full force and effect. The failure of Landlord to exercise its dght of recapture
shall not be construed in any manner to be an approval of Tenant's request to assign or sublet, such approval to
be effective only if given in wr'Rlng by Landlord to Tenant
(d) Tenant shall pay to Landlord or Agent the sum of One Thousand Dollars ($1,000.00), In advanc[e, to
defray Agent's administrative costs, overhead and counsel fees in connection with the consideration, review or
document preparation of any consented to assignment or subletting, such sum to be paid at the time Tenant
requests Landlord's execuflerl of such document.
(e) If at any. time during the Term any,part or all of the corporate shares of Tenant, or of a parent corporation
of which the Tenant is a direct Ix indirect subeidlary, shall be transferred by sale, assignment, bequest,
inhedtsnse, operation of Iow or other disposition so as to result in a change In the present effective voting control
of Tenant or of such parent corporation by the person or persons owning or controlling a majority of the shares of
Tenant or of such parent corporation on the dale of this Lea~e, Tenant shall promptly notify Landlord in writing of
such change, and such change in voting control shall constitute an assignment of this Lease for all purposes of
this Section; provided, however, that this prevision shell not apply in the event that over. fifty percent (50%) of the
voting power of the Tenant corporation or of such parent corporation Is held by fifty (50) or more unrelated
shareholders or distributed to such ntimber of unrelated shareholders In a public distribution of securities,
(f) If Tenant is a partnership and if any time during the Term 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 interes~t, such cessalion of
ownership shall constitute an assignment of this Lease for all purposes of this Section.
(g) Upon the occurrence of any such events as described in Section 14.1 hereof, whether voluntary,
involuntaq/, by operation of law, or otherwise, without the pdor wdtten consent of Landlord (whether or not Tenant
shall have given notice thereof to Landlord), Landlord may treat any such occurrence as an Event of DefaulL
ARTICLE 15
MARKETING AND ADVERTISING THE CENTER
SECTION 15.1 Marketing Fund
(a) Landlord has elected to provide or cause to be provided an ongoing program of promotional events which,
in Landlord's judgment, will serve to promote the Shopping Center and attract customers thereto. Landlord has
established a separate bank account into which Landlord shall deposit the contributions referred to herein to be
made by Tenant and other tenants, the aggregate of such funds on hand from time to time being referred to herein
as the 'Marketing Fund'. Tenant shall pay the Landlord. as Tenant's contribution to the Marketing Fund, an
annual charge ('Marketing Charge') in the amount specified in Paragraph J of the Indenture of Lease, such
amount to be increased on January Ist of each year during the Term by six percent (6%) of the previous year's
paymenL The Marketing Fund shall be used to pay a~ costs and expenses associated with the formation and
carrying out of an ongoing program for the promotion of the Shopping Center, which program rrray include, without
limitation, special events, shows, displays, signs, seasonal events, and other activities designed to attract
customers to the Shopping Center. In connection with the operation of the Marketing Fund, Landlord shall have
the right to contract for or nthemdse employ a professional promotional organization and other personnel which, in
Landlord's judgment, are necessary to administer the Marketing Fund and such promotional activities to be
implemented by Landlord, and such organization and personnel shall be under the exclusive control and
supervision of Landlord who shall have the so~e authority to employ and discharge the same. The Marketing Fund
may be used lo defray the cost of administration of such marketing activities including the salary or payments and
reimbursements due such organization and personnel rent trave
, , expenses, and other business expenses.
SECTION 15.2 Media Fund
(a) ' In addition to the Marketing Fund set ~orth in Section 15.1, Landlord has elected to provide or cause to be
provided an ongoing program to purchase and provide electronic, print and other institutional advertising for the
promotion of the Shopping Center. Landlord has established a separate bank account into which Landlord shall
deposit the contributions referred to herein to be made by Tenant and other tenants, the aggregate of such funds
on hand from time to time being referred to herein as the 'Media Fund'. Tenant shall pay the Landlord, as
Tenant's contribution to the Media Fund, an annual charge ('Media Charge') in the amount specified in Paragraph
J of the Indenture of Lease, such amount to be increased on January 1st of each year during the Term by six
percent (6%) of the previous year's payment. The Media Fund shall be used to pay all costs and expenses
associated with the purchase of electronic, print and other institutional advertising fo~ th~ promotion of the
Shopping Center. Landlord shall have the sole right to designate and contract for the services of an advertising
agency or other professional Organization or personnel to administer the Media Fund and such agency,
Create Date: April 21, 1999 2:45 PM 22 Print Date: April 23, 1999 9::;?6 AM
::ODMA~PCDOCS\WCON SH 1~,..,813~2
organization and personnel sha!l be under the exclusive control and supervision.of Landlord who shall have the
sole authority to employ and discharge the same. The Media Fund may also be used to defray the cost of
administration of the Media Fund including the salary or payments and reimbursements due such agency,
organization and personnel, as well as rent, travel expenses and other business expenses.
(b) Landlord may, at its option, combine the Media Fund with the Marketing Fund end administer both es a
single entity.
SECTION 15.3 Merchanta' Asso~aflon
(a} In the event there preSent~ exists'~,ither a merchant's association, promotion fund, or other similar entity
the purpose of which is to advertise the Shopping Cantor, Landlord agrees that unless Landlord shall hereafter
direct otherwise, the Tenant shall not be obligated to contribute any sums therpt0. If Landlord shall direct, in lieu of
Tenant's payments to the Marketing Fund and/or Media Fund, Tenant shall commence paying an amount equal to
the th~n current Marketing. Charge and/or Media Charge to Landlord, as agent for such memhants' association
end/or promotion fund. Tenant does hereby irrevocably assign to Landlord all of Tenant's voting rights contalped
in any bylaw or other stroller document forming or governing the administration of any such association or other
entity. Tenant further agrees that Landlord shall have the option at any time during the Term to discontinue and
dissolve such merchants' association and/or other entity then in effect and to pay over to the Marketing Fund and
Media Fund in such pementoges as Landlord shall determine, any sums remaining therein.
SECTION 15.4 Payment.of Obligations to the Marketing Fund and Media Fund
(a) All sums required t° be paid by Tenant pursuant to this Article 15 shall be deemed "Additional Rent", shall
be payable with each monthly installment of Fixed Minimum Rent, without demand, deduction or offset, and shall
be pmratod for partial time periods during the Term.
SECTION 15.5 Expansion Opening Contribution
Intentionally Deleted.
ARTICLE 16
DESTRUCTION OF PREMISES
SECTION 16.1 Total or Partial Destruction of Premises
(a) Il' the Premises she# he damaged by fire or other casualty covered by Landlord's policies of all risk
property insurance but are not thereby rendered untenantable in whole or In part, subject to the limitations
hereafter set forth, Landlord, at its own expense, shall cause such damage to be repaired, and the r~'~t shall no{
be abe{ed. If by reason of such o<:c. urmnce,' the Premises shall be rendered untonantabte in whole or in part,
subject to the limitations hereafter set forth, I.andlord, at its own expense, shall cause the damage to be repaired
and the Fixed Minimum Rent,shall be abated proportionately as to the portion of the Premises rendered
untenantoble until the completion of Landlord's repairs thereto.
(b) It' the Premises shall be damaged or destroyed by a fire or casualty not covered by Landlo~'d'$ policies of
all risk prol~ insurance and Landlord, at its.option, decides not to repair and restore the Premises, Landlord
shall have ~be right, to be exercised by notice in writing delivered to Tenant within sixty (60) days from and after
the occurrence of such damage or deelmcti~3, to ccencel and terminato this Lease. Either party shall have the
right, to be exercised by notice in writing, delivered to the other wit~,~ thirty (30) days from and after any
occurrence which renders the Premises wholly untonantable to caecel this Lease, if said destruction of the
Premises occurs within the last three (3) years of the Term, said cancellation to take effect ninety (90) days from
and after the receipt of such notice by the other pady, and in such even{ this Lease and the tenancy hereby
created shall cease as of the aforesaid date (except that Such cancellation shall not affect the obligations of the
parties which have accrued theretofore a~d remain unpaid), the rent to be adjusted as of such dato; provided,
however, that if Landlord shall commence repairs or rec°~strucllon 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.
(c) In no event shall Landlord be obligated to expend for any repairs or reco'nelruction pursuant t~ this Section
16.1 an amount in excess of the insurance proceeds recovered by it and allocable to the damage to the Premises
after deduction therefrom of Landlord's reasonable expenses in obtaining such proceeds and any amounts
required to be paid to Landfor~s mortgagee. Nothing in this Section shall be construed to permit the abatement in
whole or in part of the Percerffage Rent. and the calcuiati(~n of Percentage Rent shall be governed solely by
Section 2.1(e) hereof. The prOVisions hereof are subject to the terms of Section 16.2 hereof.
Create Date: April 21, 1999 2:45 PM 23 Print Date: April 23, 1999 9:25 AM
::ODMA\PCDOCS\WCONSHIV~ .~13~2
(d) If Landlord is required to repair or reconstruct the Premises pursuant to the provisions of this Section 16.1,
its obligation shall be limited to the construction of the structural demising walls (without drywall) and roof of the
Premises. Tenant shall submit to Landlord for Landlord's approval detailed plans and specifications for all other
work not required to be done by Landlord and upon approval of such plans and specifications, and within fifteen
(15) days after Tenant has been notified that Landlord has completed its work on the Premises, Tenant shall
reenter the Premises an~ therein dlfigentiy pursue to completion such work at Tenant's expense and immediately
thereafter commence doing business all 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. '
(e) Notwithstanding anything set forth herein to the contrary, Tenant shall be responsible for all repairs and
replacements of damage and/or destruction of the Premises necessitated by burglary or attempted burglary, or
any other illegal or forcible entry into the Premises.
(f) Tenant covenants that it wll~ give notice to Landlord of any accident or damage, whether such damage is
caused by insured or uninsured'casua~j, Occurring in, on or about the Premises within seventy-two (72) hours
after Tenant has knowledge of such accident or damage. If Tenan{ breaches its covenant set forth in this Section
.t6.1(f), Landlord's liability shall be limited to performing the rapaira required by Landlord hereunder and in addition
to all other Hghts and remedies under this Lease. at law er in equity, Landh3n:l.shall;. at its option, hold Tenant liable
for and Tenant shati reimburse Landlord for the cost to remedy any such damage which could have been
prevented by Tenant's timely notice to Landlord as herein set forth.
SECTION 16,2 Partial Destruction of Shopping Center
(a) In the event that fifty percent (50%) or more of the gross leasable floor area of the Shopping Center shall
be damaged or destroyed by fire or other cause notwithstanding that the Premises may be unaffected by such fire
or other cause, Landlord shall have the fight, to be exercised by notice in writing delivered to Tenant within Sixty
(60) days after said occurrence to cancel and terminate this Lease. Upon the giving of such notice, the Term
shall expire by lapse of time upon the fifteenth (15th) day after such notice is given and Tenant sha}l vacate the
Premises and surrender the same to Landlord.
ARTICLE 17
EMINENT DOMAIN
SECTION 17,1 Total Condemnation of Premises
(a) If the wh°le of the Premises shall be tekes by any public or quast.publio authority under the power of
eminent domain, condemnation or expropriation O~ in the event ora cortveyance in lieu thereof, then this Lease
shall tarminata as ol= the date on which possession of the Premises is required to be surrendered to the
authority, and Tenant shall have no claim against Landlord or the COnderrming authority for the value
o~ the unexpired Term.
SECTION 17.2 Partial Condemnation of Premises
(a) Ii' any port °f the Premises shafl be se taken or convayed and if such partfal taking or conveyance shall
render the Premises unsuitable for the business of the Tenant, than the Term shall terminate as of the date on
which possesston of the ·
Premises is required to be surrendered to the condemning authority and Tenant shall
have no claim against Landlord or the condemning autho~ty for the value of any unexpired Term.
(b) In the event such partial taking or conveyance is not extensive enough to render the Premises unsuitable
for the business of Tenant, this Lease shall con,rise in full force and effect except that the Fixed Minimum Rent
and [fie Percentage Rent Gross Sales Base shall each be reduced in the same proportion that the floor area of the
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 d=~ys during which the Pi~emises ara not open for business the calculation of Percentage Rent shall be
adjusted in accordance with Section 2.1 (d) hereof. Landlord shall promptly rest;3re the Premises, to the extent of
condemnation proceeds available for such purpose, as nearly as praci~able to a condition comparable to their
condition at the time of such cof~demnation less the portion lost tn the taking or conveyance and Tenant shall
promptly make all necessary ' ·
and shall repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings
promptly reenter the Premises and com~7~nce doing business in accordance with the provisions of this
Lease. For purposes of determining the amount of funds available for restoration of the Premises from the
condemnation award said amount will be deemed to be that part of the award which remains after payment of
!..andlord's reasonable expense incurred in recovering same and of any amounts due to any mortgagee of
Create Date: April 21, 1999 2:45 PM 24 Print Date: April 23, 1999 9:26 AM
· ::ODMA\PCDOCS\WCONSHI~, J813~2
Landlord, and which represents a portion of the total sum so available (excluding any award or other
compensation for land) which is equitably allocable to the Premises.
SECTION 17.3 Partial Condemnation of Shopping Center
(a) If (i) mom than one-third (113) ol~ the floor area of the buildings of which lhe Premises are a part or more
than one-third (113) of the leasable floor area of the Shopping Center or more than one-third (1/3) of the Common
Areas shall be so taken or conveyed or (i~ if am/part of the parking area in the Shopping Center is so taken or
conveyed and as a result of such partial taldng 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 evenfa nobeithstending the fact that the Premises are not so taken or conveyed,
Landlord shall have the right and power, at its option to be exemised by written notice to Tenant, to terminate this
Lease effective either the date title vests in the condemning authority or the date Landlord is required to deliver
possession of the part so taken or conveyed, p¢ovidad, however, In the event of a taking or conveyance described
in clause {ii) if Landlord shall take immediate steps towards eliminating such violation, this Lease shall be
unaffected and remain in full fome and effect. In a. ny event, Tenant shall have no claim against Landlord or the
condemning authority for the value of any unsxp~'ed Term.
SECTION 17,4 Landlord's Damages
(a) In the event of any condemnation or taking as hereinbefore provided, whether whole or in part, Tenant
shall not be entitled to any part of the award as damages or otherwise for such condemnation and Landlord and
any mortgagee of Landford are to receive the full amount of such award as their respective interests may appear.
Tenant hereby expressly waives any right or claim to any part thereof and assigns to Landlord any such right or
claim to which Tenant might become enffiled.
SECTION 17.5 Tenant's Damages
(a) Although ali damages in the event of any condemnation are to belong to the Landlord and any mortgagee
of Landlord as aforesaid, whether such damages are awarded as 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 same shall not
diminish the Landlord's or such mortgagee's award to claim and reCOver from the condemning authority, but not
from Landlord or such mortgagee, such comPensafio~ as may be separately awarded or recoverable by a tenant
under the applicable eminent domain code in affec~ where the Shopping Center is located in Tenant's own right for
or on account of, and limited so~ely to, any cost to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures and equipment.
ARTICLE 18
BANKRUPTCY
SECTION 18.1 Bankruptcy
(a) if there shall be filed against Tenant or any guarantor or surety of this Lease or any of Tenant's obligations
under this lease, in any court, I)ursuant to any statute either of the United States or ol~ any state, a petition in
bankruptcy or insolvency or for reorganization or [or the appointment ora receiver or trustee of all or any portion of
Tenant's or such guarantor's'or suraty's property, and if, within thirty {30) days thereof, Tenant or such guarantor
or surety fails to secure a discharge thereof, or if Tenant or such guarantor or surety shall voluntarily §la any such
petition or make an assignment ~or the benefit of creditors or 13e§tion for or enter into such an arrangement, then
this Lease, at the option of Landlord, may be cancelled er terminated, in which event neither Tenant nor any
person claiming through or under Tenant by virtue of arty statute or of an order of any court shall be entitled to
acquire or remain in possessld~ of the Premises, as the case may be, and Landlord shall have no fur~er liability
hereur~der to Tenant or such persoa, and Tenant er any such person shall forthwith quit and surrender the
Premises. If this Lease sha~l be so cancelled o~terminsted, Landlord, in addition to the other rights and remedies
ol~ Landlord under Article 18 hereof, or contained elsewhere in this Lease, or by virtue of any statute or rule of law,
may retain as liquidated damages any rent, security deposit and any other money received by Landlord from
Tenant or others on behalf of Tenant.
(b) If this Lease is assigned to any person or entity pursuant to the provisions of the Bankruptcy Code, 11
U.S.C. Section 101 et seq. (the 'Bankruptcy Code'), fifty percent (50%) of any and all monies or other
consideration payable or otherwise to be delivered in connection with such assignment shall be paid or delivered
to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or
of the estate of Tenant, within the meaning of the Bankruptcy Code. Any monies or other consideration
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::OD M;~,\PCDOCS\WCONSH 1~, ,~,5813~
constituting Landlord's property under the preceding sentence not paid or delivered to Landlord shall be held in
trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord.
(c) Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code
shall he deemed, without furlher act or deed, to have aSSumed all of the obligations arising under this Lease on or
al~er the date of such aasignment. Any such assignee shall, upon the request of Landlord, forthwith execute and
deliver to Landlord an instrument, in form and substance acceptable to Landlord, confirming such assumption.
id) In addition to Landlord's right to 3ppro~e or disapprove the proposed sublease or assignment, as set forth
above, Landlord shall have the right, to be exercised by giving notice to Tenant within thirty (30) days after receipt
of Tenant's request to assign or sublet, to recapture the Promises, or portion thereof described in the proposed
sublease or assortment. If notice of such recapture is given, it shall setwe to canCel and terminate this Lease with
respect to the proposed sublease or assignment space, or, if the proposed sublease or assignment covers the
entire Premises and Term, it shall sense to cancel and terminate the Lease, in either case as of the thirtieth (30th)
day after the date of Landinrd's notiCe and as fully and completely as if that date had bean definitely fixed as the
expirafion of the Term. If this Lease be cancelled pursuant to the terms hereof with respect to less than the entire
Promises, the Fixed Minimum Rent shall be ed~usted on the basis of the proportion of the total area retained by
Tenant to Tenant's total aroa originally demised hereby, the Lease so amended shall continue thereafter in full
force and effect. The tallureof I.~mdlord to exercise its right Of recapture shall not be construed in any manner to
be an approval of Tenant's request to assign `or sublet, such approval to be effective only if given in writing by
Landlord to Tenant.
ARTICLE 19
EVENTS OF DEFAULT, LANDLORD'S REMED ES
SECTION 19,1 Events of Default
ia) The following shall constitute an Event of Default:
1. If Tenant defaults in the payment of any sum of money (whether Fixed Minimum Rent, Percentage Rent,
Tax Rent, Tenant's proportionate share of Opemttng Costs, Tenant's proportionate share of Landlord's all i~sk
property insurance, the HVAC Cha'ge, Marketing Charge, Media Charge, Additional Rent or otherwise) when due.
If such default shall not be (=~',ed within ~teen (15) days after the date of written notice from Landlord to Tenant of
said default, Landlord may pursue the remedies set forth in [his Article.
2. ExCept as to acts, defaults, omissions and/or occurrences specified in subsections 1, 3 and 4 of this
Section 19.1ia), or those characterized, defined, denoted, or identified in this Lease as a Deliberate Event of
Default, if Tenant defaults in fultil§ng any of the o{her covenants of this Lease on Tenant's part to be performed
hereunder and such default shall not be cured within the period within which performance is required to be made
by specific provision of this Leasa. or, ii' no such period Is so provided, within twenty (20) days after the date ol;
written ootice from Landlord to Tenant spc--~ying the naturo of said default, or, if the default so specified shall be of
such a nature that the same cannot ha reasonably cured or remedied within said twen[y (20) day period, if Tenant
shall not in good faith have commenced the curing or remedying of such default within such twenty (20) day period
and shall not thereafter diligently proceed therewith to completion.
3. If any execution or attachment shall be issued against Tenant or any of Tenant's property and shall not be
discharged or vacated within twenty (20) days a~tar the issuance thereof.
4. Any event described in Sectic~ 18.1 ~- Section 19.2.
5. The occurrence of any other event described as cons§tu§ng an Event of Default elsewhere in this Lease.
SECTION 19.2 Deliberate Events of Default
ia) The following shall be deemed t(~be a Deliberate Event of Default:
If Tenant shall ii) fail timely to make payment of Fixed Minimum Rent, Percentage Rent, Tax Rent,
Tenant's proportionate share of Operating Costs, Tenar~t's proportionate sharo of Landlord's all risk property
insurance, the HVAC Charge, Marke§ng Charge or Media Charge in each case on the date such payment is due
hereunder, without regard to any grace period andlor written notice otherwise roquired from Landlord, and any
such failure shall be repeated two (2) times in any period of twelve (12) months, or(ii) fall to maintain the hours of
operation required by Paragraph F of the Indenture of Lease and such failure shall be repeated more than three'
(3) times in any period of twelve (12) months, and notwithstanding that such faiJures shall have been tfmely cured.
2. If Tenant abandons the Premises whether the Premises are vacant or not, or if Tenant permits the
Premises to become vacant.
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::ODMA\PCDOCS\WCONSH 1\1r 13~2
(b) In the event of a Deliberate Event of Default, Landlord may, after giving Tenant one (1) additional five (5)
day notice, exemise any or all of. its rights under this Lease in addiUon to those it may have at law or in equity.
SECTION .19.3 Termination
(a) Upon or after the occurrence of any one or more of such Events of Default, or Deliberate Events~of
Default, and upon the expiration of the applicable notice required hereunder, if the Term shall not have
commenced Landlord may immediately cancel this Lease by written notice to Tenant, m' If the Term shall have
COmmenced Landlord may serve upon Tenant a written notice that this Lease and the Term will terminate on a
date to be specified therein, and tn 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.
(b) Upon the date specified in the aforesaid notice of termination, this Lease and the Term shall terminate and
come to an end es fully and COmpletely as if such date were the day herein definitely fixed for the end and
expiration of Ibis Lease and such Term, and Tenant shall then quit and surrender the Premises to Landlord, but
notwithstanding any statute, role of law, or decision of any court to the contrary, Tenant shall remain liable as set
forth hereinafter.
SECTION 19.4 Right of Possession
(a) . Upon or after any one or more Events of Default or Deliberate Events of Default and upon the expiration of
any applicable notice period required hereunder;, or if the potice provided for above in Section 19,3 hereof shall
have been given and this Lease shall be terminated; or i~ the Premises become vacant or deserted; then, in ell 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 reenter the Premises either by
reasonable force if necessary to properly secure the Premises or in the event of emergency, or by summary or
other court proceedings to disPOssess Tenant end the legal representative of Tenant or other occupant of the
Premises, and remove their effects and repossess and enjoy the Premises, together with all alterations, additions
and improvements, all without being liable toprosecution or damages therefor.
SECTION '19.5 Additional Remedies of Landlord
(a) In the event of any EVent of Default, Deliberate Event of Default, reentry, termination and/or dispossession
by summary proceedings or otherwise, in edditton 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 and all Additional Rent shall become due thereupon and be paid up to the time of
such reent~, dispossession end/or expiration;
2. Landlord may relet the Pre,m~ses or any part or parts thereof, either in the name of Landlord or otherwise,
for a term which may at Landlord's option be less than Or exceed the period which would otherwise have
constituted the balance of the Term, and may grant co~ceesions or free rent; and
3. Tenant or the legal representstive of Tenant shall also pay Landlord, at Landlord's option and whether or
not Landlord has terminated or cancelled this Lease, as liquidafad damages for the failure of Tenant to observe
and perform said Tenant's covenants herein contained, for each month of the period which would otherwise have
constituted the balance of the Term, the excess, if any, of the sum of one monthly installment of Fixed Minimum
Rent, one-tweti~h (1112th) of the annual average percentage Rent payable hereunder for the three (3) Lease
Years immediately precediog (or for the entire preceding portion of the Term if less than 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 reentry or termination, the HVAC 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, and the Marketing
Charge, computed on a monthly basis over the nat amount, if any, of the rents actually collected on account of the
lease or leases of the Premises for such month.
The failure of Landlord to relet the Premises or any pert or parts thereof shall not release or affect Tenant's liability
for damages provided Landlord uses reasonable efforts to rele{ the Premises. In computing such liquidated
damages there shall be added to the said dermiency all expenses Landlord may incur in connection with reletting,
such as court costs, reasonable attorneys' fees and disbursements, bmkerege, and management fees and
commissions, cost of putting and keeping the Premises in good order and costs of preparing the Premises for
raletti~g 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, or the rights of Landlord to elect to collect liquidated
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27
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::ODMA\PCDOCS~WCONSHI~ .~ ~813~
damages calculated by the formula sat forth in Section 19.5(b) hereof. Landlord, at Landlord's option, may make
such alterations, repairs, replacements and/or decorations in the Pr~mises as Landlord in Landlord's sole
judgment considers advisable and necessary for the purpose of relefflng the 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 ftabie in any way whetsoeve~ for failure to re/at the Premises p~ovided '
Landlord uses reasonab!e efforts to relet the Premises or, in the event that the Premises are relet, for failure to
collect the rent thereof under such re/erring.
(b) In any of the circumstances mentioned In the foregoing Section 19.5(a) in which Landlord shaft have the
right to hold Tenant liable as therein provided, Landlord shaft 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 monthly amount of Frxed Minimum Rent and aft Additional Rent multiplied by the
number of months and fractional months which would have constituted the balance of the Term (or such lesser
time Period specified by Landlord), aft discounted to present worth at the pdme rate, together with costs and
reasonable attorneys' fees.
(c) In the event of a breach or threatened breash by Tenant of any of the covenants or provisions hereof'
Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if
reentry, summary proceedings and other remedies were not provided for herein_ Mention in this Lease of any
particular remedy shaft not preclude Landlord from any other remedies under this Lease, or now or hereafter
existing at law or in equity or by statute. The provisions of this Section 19.5(c) shall not apply to Landlord's rights
under Section 5.5 which shall be limited to the provisions set forth therein.
(d) Tenant hereby expressly waives the service of notice of intention to reenter 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 any event of Landlord obtaining possession of
the Premises by mason of the violation by Tenant of any of the covenants and conditions of this Lease er
otherwise. The words 'reenter' and "reenter- as used in this Lease are not restricted to their technical legal
meaning.
(e) Upon the termination of the Lease for any reason, In the event the actual amounts for any Fixed Minimum
Rent, Percentage Rent or Additional Rent are not known at the Ume of such termination, Landlord shall be
Permitted to estimate the sums' due hereunder based upon the rate of current charges and other reasonable
factors. Landlord reserves the right to adjust the amounts due hereunder foftowim:j the end of the relevant
Accounting Period, Tax Period or other relevant flmo Period provided for heroin and to bill Tenant for any balances
due hereunder.
SECTION 19.6 Performance of Tenant's Covenants
(a) Tenant covenants and agrees that i~ will perform all agreements and observe all covenants herein
expressed on its pert to be performed and ~, and that it wift promptly, upon receipt of written notice
specifying action required by this Lease, 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, a~d not in lieu of or in limitattor~ of any other remedy which Landlord may have
pursuant to this Lease, at law or in equity, Landlord may, but shaft not be obligated fo, 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 sums or
costs incurred by Landlord in taking such action, plus edmirflstrative costs of Landlord in a sum equal to twenty
percent (20%) of such sums erxt/or costs. Notwithstanding the foregoing, Laodlord's performance of any or all of
Tenant's covenants shall not release Tenent from liability for nonperformance.
SECTION 19.7 Confession of Judgment
(a) IF TENANT SHALL DEFAULT IN THE PAYMENT OF THE RENT OR ANY OTHER SUMS DUE
HEREUNDER BY TENANT, OR IN THE EVENT OF A DELIBERATE EVENT OF DEFAULT AS DEFINED
HEREIN, TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR
A'I-FORNEY OF ANY COURT OF RECORD:WITHIN THE UNITED STATES OF AMERICA, OR ELSEWHERE,
TO APPEAR FOR TENANT, WITH OR WITHOUT COMPLAINT FILED; AND IN SAID SUITS OR ACTIONS TO
CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST TENANT AND ALL PERSONS CLAIMING
THROUGH OR UNDER TENANT, IN FAVOR OF LANDLORD, FOR ALL OR ANY PART OF SAID RENTAL
AND/OR SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO
LANDLORD UNDER SUBSECTION a) or SUBSECTION b) OF THIS SECTION, AND INCLUDING ANY
AMOUNT TO WHICH LANDLORD WOULD BE ENTITLED AS DAMAGES UNDER THE PROVISIONS OF THIS
LEASE, INCLUDING, BUT NOT LIMITED TO, ARTICLE 19, AND FOR INTEREST AND COSTS, AND A
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. :: ODMA'~PC DOC 8'~WCON SH ~ ¥~-.-.813~.2 '-~'
REASONABLE A"J'FORNEY'$ COMMIB,~ION h~OT TO EXCEED FIFTEEN PERCENT (15%) OF THE TOTAL
AMOUNT OF raUCH RENTAL ~ ~AID OTHER SUMS FOR COLLECTION, FOR WHICH TH~$ LEA~E, OR
A TglUE AND CORRECT COPY ,"HEREOF, SHALL EIE sUFI~C~ENT WARRANT, AND SUCH POWr=R$ f/AY
BE EXERCISED AS ~ AF'~R THE TERMINATION OR EXPI.RATIOR OF THE TERM OF TH~q LEASE. THE
WARRANT OF ATTORNEY HERE/N (~ANTED SHALl. NOT I~ EXHAUSTED BY ONE OR MORE EXERCIEF-~
THEREOF, BUT SUCCESS~,'E ACT1ON~ MAY BE COMMENCED ANI3 SUC.,CE~IVE JUDGMENT8 MAY BE
CONFErrED OR '~THER'CelSE ENTERED A(~AINST TENANT FROM TIIk~ TO TIME A~ OFTEN A8 ANY OF
THE RENT AND/OR OTHER AMOUNT8 AND ¢tU/¢$ SHALL FALL OR BE DUE OR BE IN ARREARS, AND
THIS WARRANT OF A?I'ORNEY MAY ~JE EXERCISED AFTER TH~ TERMINATION OR EXI~RATION OF THE
TERM AND/OR OURIN~ OR A/rlTcR ANY EXTENT1ON~ OF THE TERIVL~ OR RENEW,a,L$ OF THIS LEASE.
TENANT HERE~Y ACKNOVVLED~E~ THAT ~ AJ~R~EING TO THE FOREGOING GONFESS~ON OF
JLIDOMENT AN D WPJ~RANT OF ATTORNEY, TENANT WAIVES THE RIGHT TO NOTICE AND A PR
JL~DIC1AL PROCEEDING TO DETERMINE rr~ RIGHT~ AND LIABILITIEIS, AND FURTHER ACKNOV~EDGE$
THAT LANDLORD ,'~A.Y, ON DEFAULT BY TENANT UN[DER THE LEASE, SUBJECT TO BUCH NOTICE
REQUIREMENTS, tF ANY; A~ ARE HERE1R EXPRESSLY PRO, tiDED, OBTAIN A JUOC}MENT Au']AI N ~T
TENANT FOR ALL b~J~S OLIE HFRELJNDEI~ AND LEVY EXECL~'ION ON ~LICH JUO~MENT ^(3AINS"¢ ANY
AND ALL PROPER'T( OF TENANT'ArrHOUT ANY OPPORTUNITY OF T~NANT TO RAISE ANY DEFENSE,
SE'TOFF, COIjNTERCLNM OR OTHER CLAIM THAT TENANT MAY HAVE, AND THAT TENANT KNOWINGLY,
VOLU,NTARIL¥ AND iNTELLiGENTLY GRANTS LANDLORD THE FOREGOING RIGHT TO CONFESS
JUDGMENT AND WARRANT OF ATTORhlb'Y A~ AN EXPLICIT AND ,MATERIAL PART OF THE
CONSIDERATION BARGAINED FOR BETWEEN TENANT AND LANDLORD, TENANT CERTIFIES THAT IT
HAS aEEN REI~REBENT~D ttY (OR HAS HAD THE OPPORTUNITY TO nE R~-P~EBENTEO) AT THE
SIGNING OF THiS LEASE ~lD 1N TttE GRANTING OF THiS CONFE~ION OF JUOGMLANT AND WARRANT
OF AcrORNEY ~ INOFPENDENT LEGAL GOUNSEL, SELEG~ eu OF .rl'S OWN FREE W~LL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THE CONFESSION OF JUDGMENT AND WARRANT OF
A'I-FOr~NEY WITH COUNE:EL. TF_NANT FURTHER CERTIFIES THAT ~ HAej READ AND UNDER~TANDS
THE MEANING AND EFFECT OF THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF
ATTORNEY. TEN/~IT FURTHER ACKNOWL~E$ THAT THIS LEASE IEA COMMERCLAL TRANSACTION,
AND THAT THE RELATIONS'lIP BE"P~/~EN [~q~LOR~ AND TENANT CREATED HEREUNDER I$
COMMERCIAL IN NATURE.
(b) tN THE EVENT OF THE BREACH OF ANY PROVISION OF THE LEASE, AN EVENT OF DEFAULT OR
A DELIBERATE EVENT OF DEFAULT AS DEF!,N~O HEREIN, EiTHER DURING THE TERM OR Ah'Y
RENEWAL OR EXTENSION THEREOF, ANCTK~ WHc_N AND AS SOON AS THE TERN~ $t-L,~LL HAVE
E.X, PIRED OR BEEN 'r~RMINATED, TENANT HERF.~'f' IRREVOCABLY AUTHORIZES AND EMPO¢~'ERS ANY
PROTHONOTARY OR A'ITORN EY OF ANY COL}RT OF RECORD AS A. TTORNEY FOR TENANT AND ANY
PERSONS CLAIMING THROUGH OR UNDER TENANT, WITH OR ~ffTHOUT ¢OMI~LAINT FILED, TO
CONFESS JUDGMEt~ IN EJECTMENT AC~JNST TENANT AND ALL PER$ON~ CLAIMING THROUGF OR
UNDER TENANT, IN FAVOR OF LANDLORD, FOR ~ RECOVERY BY LANDLORD OF POSSESSION OF
THE PREMISES, FOR WHICH THIS ~ OR A TRUE AND CORRFCT COPY THEREOF, SHALL BE
EUFFICIENT WARRANT, VVHEREUPGN II= LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF
POSSESSION MAY ISSUE FOR~, WITHOUT ANY PR,OR WRIT OR PROCEED~HG$ WHAT~O EVER,
AND PROV1DED THAT iF FOR ANY REASON AFTER SUCH ACT:OIl SHALL HA'YE eEEN COMMENCED THE
,~=~VlE SNAIL 8E DETF_RMINED. C.~aCELLED OR SUSPENDEC~ AND POSSESSIOn, 4 OF THE PREML~'S
· REIVLAiN IN OR 8E RESTORE~ TO TENANT OR ANY PERSON CI. AIMU~G THROUGH OR UNDER TENANT~
LANDLORD SHALL HAVE THE RIGHT UPON ~ SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON AHY
SUBSEQUENT TERMINATION OR EXPIP~TION O1= THIS LEASE. OR ANY RENEW.~,L OR EXTENSION
HEREO~, OR OF TENANT'S RIGHT OF PO~EIC)N A~ HEREINBEFORE ~ET FORTH. TO CONFE~
JUDGMENT IN EJECT[aENT AS HEREINBEFORE SET FORTH ORE OR MORE ADDITIONAL TIMES TO
RECOVER PO$$ E$SION OF' THE PREMI,~£$. TENANT HEREgY ACKNOV'~..F. DGE$ THAT 5*f A~REEING TO
THE FOREGOING CONFESSiO~'I OF JUDGMENT AND V'~Na. RANT OF ATTORNEY, TENANT VVA/VES
RIC4HT TO No'rIcE AND A Pf~k.'~ JUDICIAL PROCEErDIN~ TO DETEFL'MINE ITS RIGHTS AND UAI~U~ES,
AND FURTHER ACKNOVVLEOGES THAT LANDLORD MAY, ON DEFAULT aY I'~NANT UNDER THE LEASE,
SUBJECT TO SUCH, NOTICE REQ¥1REMENT~, IF ANY, ,AS ARE HEREIN EXPRESSLY PROVIDED. DETAIN
A JUDGMENT ^GAif~BT TEN~ FOR POSSESSION OF THE PREMISES WTTHOUT ANY OPPCRTUNITY OF
TEi'~ANT TO RAISE ANY rJEFENSE. S&¥OFF, CO!JN ~ c-F~C~AIM OR OTHER CLAIM THAT TENANT
HAVE, AND THAT TENANT KNGWIN(~LY, VOLUNTARILY AND tNTELL:GENTI_Y GRANTS LANDLORD THE
I=ORE~OING RIGHT TO CO~rlE~$ JUST AND WARRANT OF ATTORNEY AS AN EXPLICIT AND
MATER1AL PART OF THE CONSIDERATION BARGAINED FOR BE~'Arr. EN TENANTANDiLANDLORO.
TENANT CERTIFIES THAT IT HAg BEEN REPRE,~'NTED BY (C~ HAS HAD THE OPPORTUNITY TO BE
REPPESENTED) AT ';·HE 8tOeiNG C~ TH,~8 LEASE AND·IN TH E G RANTING OF 7HiS CONFESSION OF
¢C.'Z2~MENT A~[D W:*,ARAI,.'T OF ATTORNEY BY ~NDEPENDENT, LEGAL COUNSEL, SELECTED OF ITS
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::O DMA\PCDOCS\WCONSH 1\ 1 -~813~2 ,
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THE CONFESSION OF JUDGMENT
AND WARRANT OF ATTORNEY WITH COUNSEL TENANT FURTHER CERTIFIES THAT IT HAS READ AND
UNDERSTANDS THE MEANING AND EFFECT OF THE FOREGOING CONFESSION OF JUDGMENT AND
WARRANT OF A'I-rORNEY. TENANT FURTHER ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL
TRANSACTION, AND THAT THE RELATIONSHIP BETWEEN LANDLORD AND TENANT CREATE~)
HEREUNDER iS COMI~ERCIAL IN NATURE.
(c) IN ANY ACTION OF OR FOR EJECTMENT OR FOR RENT OR OTHER SUMS, IF LANDLORD SHALL
FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT
S~. I I ING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, SUCH AFFIDAVIT'
SHALL BE CONCLUSIVE EVIDENCE OF SUCH FACTS; AND IF A TRUE COPY OF THIS LEASE (AND OF THE
TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF
COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT HEREBY WAIVES
AND RELEASES TO LANDLORD, AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR LANDLORD,
ALL PROCEDURAL ERRORS IN ANY PROCEEDINGS TAKEN BY LANDLORD, WHETHER BY VIRTUE OF
THE WARRANTS OF ATTORNEY CONTAINED IN THIS LEASE OR NOT, STAY OF EXECUTION AND
EXTENSION OF TIME OF PAYMENT, ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM
EXECUTION AND ALL EABILITY THEREFOR, AND NO BENEFIT OF EXEMPTION WILL BE CLAIMED UNDER
AND BY VIRTUE OF ANY EXEMPTION LAW NOW IN FORCE OR WHICH MAY HEREAFTER BE PASSED.
SECTION 19.8 Waivers
(a)' Tenant expressly waives:
1. . The benefit of all laws, now or hereafter in rome, exemp{ing any goods on the Premises, or elsewhere,
from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any dghts under this Leasel
2. The benefit of all laws existing now or hereafter enacted regarding any limitation as to the goods upon
which, or the time within which, distress ts to be made afar removal of goods of the Tenant or others from the
Premises, and further relieves Landlord of the obligation of proving or Identifying the goods distrained, it being the
purpose and intent of this provision that all goods of Tenant. whether upon the Pram sas or not, shall be liable to
distress for rent at any time after Tenant's default under this Lease, Including particularly, but not limited to, those
goods removed from the Premises clandestinely and fraudulently, as defined above in this Lease.
3. The right to issue a wrff of replevin for the recovery of any goods seized under a distress for rent or levy
upon an execution for rent, damages or otherwise.
4. The right to delay execution on any real estate that may be levied upon to collect any amount which may
become due under the terms and conditions of this Lease and any right to have the same appraised, and Tenant
authorizes any Prothonotary or ~ to enter a ~ of execution or other process upon Tenant's voluntary waiver
and further agrees that said r~al estate may be sold on a writ of execution or other process.
5. All rights relating to the Landlord-Termnt relationship under any law, ordinance or statute, to the extent that
they might limit Landlord's right to cause the distrained goods to be sold, Tenant now specifically and knowingly
authorizes Landlord to sell any goods distrained for rent at a public auction sale to be held at any time at least
seven (7) days after that distraint without appraisement and condemnation of the goods, but upon five (5) days'
notice to Tenant of the date, place end terms of sale, including Laodlord's right to purchase all or any of the
property. *
6. If the Shopping Center is located in Pennsylvania, the right to any notices to quit es may be specified by
the Landlord and Tenant Act ol~ Pennsylvania, Act of April 6, 1951, as amended, or any' similar or successor
provision of law, and agrees that the notice provided for in this Lease shall be sufficient or if no such notice is
provided that ten (10) days' notice shall be Sufficient in either or any such case.
ARTICLE 20
SECURITY DEPOSIT
SECTION 20.1 Security Deposit
(a) Landlord acknowledges receip{ from Tenant of the sum set forth in the Indenture of Lease to be held as
security for the payment of any rant and all other sums of money payable b~,, Tenant under this Lease and for the
faithful per[ormance of all covenants of Tenant hereunder, the amounl of such security deposit, without interest,
shall be refunded to Tenant after termination of the Term, provided Tenant shall have made all such paymanls and
performed all such covenants. Upon any de~ault by Tenant hereunder, ail or part of such security deposit may, at
Create Date: April 21, 1999 2:45 PM 30 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1~ 813~
Landlord's sole option, be applied on account of such default, and thereafter Tenant shall restore the resulting
deficiency in such security deposit, upon demand. Tenant hereby waives the benefit of any provision of law
requiring such security deposit to be held in escrow or in trust, and such' secu~it~ deposit shall be deemed to be
the property of Landlord and may be commingled with Landlord's other funds.
(b} Landlord may deliver the security deposit to any purchaser of Landlord's interest in the Premises, in the
event that such interest be sold, and thereupon Landlord shall be discharged from any further liability with respect
to such security deposit, end, Tenant agrees to 10ok solely to such purchaser for the return of such security
deposit.
ARTICLE 21
MISCELLANEOUS
SECTION 21,1 Access by Landlord
(a) Landlord may at all reasonable times, with reasonable prior notice to Tenant, except in the event of an
emergency (in which event no prior notice shall be necessary) during the Term enter to inspect the Premises
and/or may show the Premises end building to others. At any time within ninety (90) days immediately preceding
the expiration of the Term, Landlord shall have the right to show the Premises and all parts thereof to prospective
tenants between the hours of 9'00 A.M. end 9:00 P.M. on any day except Sunday and any legal or religious
holiday on which Tenant shall not be open for business.
SECTION 21.2 Holding Over
(a) In the event Landlord and Tenant are conducting good faith negotiations to extend the Term or enter into a
new I~ase for the Premises, Tenant shall continue making all payments at one hundred percent (100%) of the
rental including Additional Rent payable aS of the last month of the Term. Notwithstanding the foregoing, upon
execution of an agreement to extend the Term or upon the execution of a new lease for the Premises, Tenant
shall retroactively pay the Increase in the rent, if any, as set forth in such new lease or in the agreement to extend
the Term. In the event good faith negotiations between the parties cease, or in the event Landlord in Landlord's
sole discretion decides not to renew Tenant's Term, and ii' upon thirty (30) days notice from Landlord, Tenant
refuses to surrender the'Premises to Landlord, Landlord shall have the option to charge Tenant one hundred and
fifty percent (150%) of the above stated rental from the expiration of such thirty (30) day notice until such time as
Landlord obtains possession of the Premises from Tenant. In addition, Tenant further agrees that if it fails to so
surrender the Premises Tenant (i) will be liable to Landlord for any and all damages which Landlord shall suffer by
reason thereof, and (ii) will indemnity Landlord against all claims and demands made by any succeeding tenanla
against Landlord, founded upon delay by Landlord in delivering possession of the Premises to such succeeding'
tenant. '
SECTION 21,3 SucCessors/Joint and Several Liability . , .
(a) All rights, obl~jation$ and liabilities harem g~ven to or imposed upon, the respective parties hereto she#
extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal
representatives, successors and assigns of the sa~d 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 peA), has been approved by Landlord in writing as provided in Sectioll
14.1(a) hereof.
SECTION 21.4 Quiet Enjoyment
(a) So long as Tenant shall pay the rents herein provided within the respective times provided therefor, and
provided and so long as Tenant observes and performs all the covenants, terms and conditions on Tenant's part
to be observed and performed, Tenant shall peaceably and qulatiy hold and enjoy the Premises for the Term
hereby demised without hindrance or interruption by Landlord or any other person or persons lawfully clashing by,
through or under Landlord, subject, nevertheless, Io the terms and conditions of this Lease. Landlord's liability
under this Section shall cease Upon a conveyance by Landlord of the Premises.
SECTION 21,5 Excuse of Performance
(a) Notwithstanding anything in this Lease to the contrary, it' Tenant shall be delayed or hindered in or
prevented from performance oil any act required hereunder by reason of any strike, IoCl~out, labor dispute, civil
commotion, warlike operation, invasion, rebellion, hostilities, military or usurped power, ~abolage, govemmentel
Create Date: April 21, 1999 2:45 PM 31 Print Date: April 23, 1999 9:26 AM
::ODM. A~PCDOCS\WCONSH 1\', .~ 13~2
regulations or controls, failure of power, inability to obtain any materiel or service, Act of God, or other reasons of a
like nature not related to the fault of Tenant, than performance of such act by Tenant shall be excused for the
period of such delay; provided, however, the foregoing shall not excuse Tenant from the prompt payment of Fixed
Minimum Rent. Percentage Rent, Tax Rant, Additional Rent or any other payments required by the terms of this
Lease or delay the date on which Tenant's obligation to commence such payments shall begin. Notwithstanding
anything in this Lease to the contrary, Landlord shall noi be deemed in default with respect to the performance of
any of the terms, covenants and conditions of this Lease if Landlord's faiiure t(~ Perfo~'m such terms, covenants
and conditions is due to any strike, lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, governmental regulations or controls, failure of power, inability to
obtain any material, service or financing, Act of God, fire or other casualty or other cause, whether similar or
dissimilar to those enumerated in this SectEm, which is beyond the reasonable control of Landlord. ~
SECTION 21.6 Waiver ,
(a) The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be
deemed to be a waiver of any subsequan{ breech 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 hereuoder, whether or not denoted as rent hereunder, shall not be cons~'ued as a waiver of
any prec~din9 bree~h by Tenant of any ~'m, covenant or condfiion of this Lease, other than [he 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, ten'n or condition of this Lease shall be deemed to ha~;e been
waived by Landlord, unless such waiver be i~ writing and executed by the Landlord.
SECTION 21.7 Custom and Usage
(a) 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 ret'reining 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 unde~ 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 anyway or manner modified the same.
SECTION 21.8 Accord and Satisfaction
(a) No payment by Tenant or receipt by Landlord of a lesser amount than any payment of rent or Additional
Rent herein stipulated shall be'deemed to be other than on account of the earliest stipulated rent or Additional
Rant then due and payable. Tenant is hereby advised that Landlord may instruct Tenant to forward all sums due
Landlord to a lock box account maintained by Landlord which will result in such checks being automatically
deposited to Landlord's account without review or inspection prior to the same being deposited. Accordingly,
Tenant agrees that Landlord shall not be hotrod by any endorsement or statement on any check or any letter
accomPanying any check or Payment and no such endorsement, statement or letter shall be deemed an accord
and satisfaction, whether such check or letter is forwarded to Landlord's lock box or directly to Landlord, Agent or
elsewhere and Landlord or Landlord'S bank may ancep{ such check or payment without prejudice to Landlord's
right to recover the balance of such rent or pursue any other remedy provided i~ this Lease, at law or in equity.
SECTION 21.9 Creditworthiness of Tenant
(a) Within ten (10) days of receipt of a request therefor from Landlord, Tenant agrees to forward to Landlord a
finondel statement of Tenant and/or if applicable, Tenar~'s guarantor or surety, in form satisfactory to Landlord,
certified by an independent certified public accountant ancep~ble to Landlord and/or Tenant agrees to provide
Landlord with written authorization to perform a credit check as to Tenant on a form acceptable to Landlord. If the
financial or credit rating of Tenant and/or, if applicable, Tenant's guarantor or surety Is not acceptable to Landlord,
Landlord shall have [he right to cancel this Lease if Tenant refuses to execute or supply such additional
assurances and/or guarantors or sureties as Landlord shall state as necessary for ~-uch acceptance within thirty
(30) days alter Landlord's request therefor which request may not be made after delivery of possession. If any
such right to cancel is exercised, this Lease shell thereupon, be null and void, each of the parties shall be released
from any other or further liability, any security deposit made hereunder shall be refunded to Tenant without interest
and neither party shall have any liability to the other by reason of si,ch cancellation. After delivery of possession,
Tenant's failure to provide Landlord with a financial sfatement and/or said credit check authorization shall
constitute an Event of Default hereunder.
Create Date: April 21, 1999 2;45 PM 32 Print Date: Apd123, 1999 9:26 AM
SECTION 21.10 Survival of Obligations
(a) All of Tenant's obligations accruing during the Term pursuant to Sections 2.3. 2.4, 3.1, 3.2, 4.2, 5.3(j), 7.3,
7.4, 8.3, 10.1 and 21.23 shall survive the expiration or earlier termination of the Term.
SECTION 2t.ll Entire Agreement ~
(a) The Indenture of Lease, the Lease Agreement, the Exhibits and Rider. if any, set forth all the covenants,
promises, agreements, conditions, representattons, promises and understandings between Landlord and Tenant
concerning the Premises and there are no covenants, agreements, conditions, representations, promises or
understand~gs, either oral Or written, behveen them other than as herein set forth. All p~or communications,
negoUations, armnge~nents, representations, agreements and onderetandings, whether oral, written or both
between the pmties hereto, and their representatives, are merged herein and extinguished, this Lease
superseding and canceling the same. Except as 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 alteration, amendment, change or modification is to be
enforced. If any provision co~talned in any rider hereto is inconsistent with any printed provisions of this Lease,
the provision contained Jn such rider shall supersede said printed provision. Tenant hereby acknowledges that: (i)
this Lease contains no restrictive covenants or exclusives in favor of Tenant;, (ii) this Lease shall not be deemed or
interpreted to contain, by implication or otherwise, any warranty, representation or agreement on the part of
Landlord that any department store or regional or national chain store or any other merchant shall open for
business or occupy or continue to occupy any Premises tn or adjoining the Shopping Center during the Term or
any part thereof and Tenant hereby expressly waives all claim with respect thereto and acknowledges that Tenant
is not relying on any such warranT, representation or agreement by Landlord either as a matter of inducement in
entering into this Lease or as a condition of this Lease or as a covenant by Landlord.
SECTION 21.12 No Partnership
(a) Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its
business, or otherwise, or joint venturer or a member of a jotnt enterprise with Tenant· The provisions of this
Lease relating to the pementege Rent payable hereunder are Included solely for the pUrpose of providing a
metl'~od whereby adequate rent is to be measured and ascertained.
SECTION 21.13 Notices
(a) All payments of rent and any and all ott~er monetary obligations of Tenant accruing hereunder, whether or
not denoted as rent. shall be paid to Agent at :555 E. Cib/Avenue, Suite 460, Bela Cynwyd, PA 19004, until
Tenant is no,fled othen~vise in writing, and e# notices given to Landlord hereunder shall be In writing and
forwarded to it at such address, postage prepaid, by registered or certified mail, return receipt requested or by
nationally recognized expedited delivery se~tce which provides proof of delivery. All notices to Tenant shall be
fon?'arded to it at the address set forth th the Indenture of Lease by postage prepaid, registered or certified mail,
return receipt requested or by nationally recognized expedited delivery service or by delivery in person at slid
notice address or at the Premises, and in the event of a delivery in person, the affidavit orthe person making such
delivery shall be conclusive proof of the delivery and of the date and time or such detive~. All changes of notice
address requested by Tenant shati only be valid end binding on Landlord if executed by [~ duly authorized officer,
partner or owner of the TananL A~ notices shall be deemed to h~ve been given on the date when deposited in the
mail receptacles maintained by the corporation which has been chartered by the United States Govenlment to
operate and deliver the mail ~s aforesaid or, in the case of notices delivered by nationally recognized expedited
delivery service, when received or in the case of notices delivered in person to Tenant. when so delivered.
Notices by the Landlord may be given on its bahai/by Agent or by any attorney for Landlord or Agent.
SECTION 21.14 Captions
(a) The captions appearing in this Lease ere inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or ~tent of such sections or articles of this Lease and do not in any way affect
this Lease.
SECTION 21.15 Tenant Defined; Use of Pronoun
(a) The word "Tenant" shall be deemed and taken to mean each and every person or party mentioned es a
Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or
permitted by the terms of this Lease may be given by or to any one thereof, and shall have the same force and
effect as if given by er to all thereof. The use of the neuter singular pronoun to refer to Landlord or Tenant shall be
deemed a proper reference even though Landlord or Tenant may be an individual, a partnership, a corporation, or
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::ODMA\PCDOCS\WCONSH 1 $813~2
a group of two or more individuals or corporations. The necessary grammatical changes required to make the
previsions of this Lease apply in the,plural number where there is more than one Landlord or Tenant and to either
corporations, associations, partnerships or individuals, males or females, shall in all Instances be assumed as
though in each case fully expressed.
SECTION 2t.16 Negation of Personal Liability
(a) Notwithstanding anything contained herein to the contrary, Tenant agrees that Landlord shall have no
personal liabtiity 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 Premises forms a part
for the satisfactloo 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 terms and provisions of this Lease to be observed
and/or performed by Landlord. subject however, to the prior rights of any holder of any Mortgage covering all or
part of the Shopping Center, 8nd 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. The references to "Landlord* in this Lease
shall be limitod to mean and include only the ownm' 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 obi gat on required to he performed or observed by Landlord hereunder;, and the transferee shall be
deemed to have assumed all of such terms, conditions, covenants and obligations except as to preexisting
defaults by Landlord. The covenants and obligations contained in this Lease to be performed on the part of
"Landlord" shall be binding on the Landlord or any transferor only during the periods in which it is a Landlord
hereunder.
SECTION 21.t7 Liability of Agent
(a) Kravitz Properties, !nc., in its capacity as Agent, is acting as Agent only and in such capacity shall not in
any event be held liable to the Landlord or to Tenant for the fulfillmeot or non-fulfillment of any of the terms,
covenants or conditions of this Lease or for any action Or p~oceedings that may be taken by Landlord against
Tenant, or by Tenant against Landlord. Any waiver of Landlord's liability hereunder, including any waiver of
subrogation rights, shall apply with equal force and effect of such Agent.
SECTION 21.18 Effect of Governmental Limitation on Rents and Other Charges
(a) In the event that any law, decialen, rule or regulation of any governmental body having jurisdiction shall
have the effect of limiting for any period of time the amount of rent or other charges payable by Tenant to any
amount less than that other'wise provided pursuant to this Lease, the following amounts shall nevertheless be
payable by Tenant:. (I) 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 21.18 shall not in the aggregate exceed the
total of a~l amounts which wOUld otherwisa be payable by Tenant pursuant to the terms of this Lease for the period
of limitation), (ii) 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 ['he Tenant during the
period of limitation but which were not paid because of such limiting law, decision, rule or regulation, and (iii) for
the remaining Term following the period of limitation, Tenant shall pay to Landlord all amounts due for such potion
of the Term in accordance with the terms hereof calculated as though there had been no intervening period of
limitation.
SECTION 21.19 Partial Invalidity; Separate Covenants ' ' *
(a) If any term, covenarff or condition of this Lease or the application thereof to any person or circumstance
shall to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such terr~.
covenant or condition to persons or circumstances other than those as to which it is held invalid or ur~enforceable
shall not be affected thereby and each term, covenant and condition of this Lease shall be valid and be enforced to
the ~llest extent permitted:by law. Furthermore, each covenant, agreement, obligation and other prevision
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.
Create Date: April 21, 1999 2:45 PM 34 Print Date: April 23, 1999 9:26 AM
::OGMA\PCDOCS\WCONSH. $6813~2
SECTION 21.20 Recording
(a) Tenant shall not record this Lease without the written consent of Landlord. If Landlord requests, the
parties shall execute and aclelowiedge a short form of lease for recording purposes which shall be recorded at'
Landlord's expense.
SECTION 2'1.21 Brokerage Commission
(a) Landlord and Tenant repre.sent and warrant that they have had no dealings, negotiations or consultations
wilh respect to the Premises. the Shopping Center or this transaction with any broker or finder except Agent and
that with the.exception of Agent no broker or finder called the Premises or any other spaces in the Shopping
Center to Tenant's attention for lease. In the event that any Other broker or finder other than Agent claims to have
submitted the Premises or any other space in the Shopping Center to Tenant, to have induced Tenant to lease the
Premises or to have taken I~art in any dealings, negotiations or consultations with respect to the Promises, the
Shopping Center or this transaction, the party having failed to disclose such contact will pa responsible for and will
defend, indemnify and save the other porty and Agent, ham~lees from and against all costs, fees (including without
limitation atiomeys' fees) expenses, liabilities and claims incurred or suffered by such party and/or Agent as a
result thereof. Tena~ acknowledges that the Daniel Goup has acted as leasing agent for the Landlord.
SECTION 21.22 Construction/Time of the Essence
(a) It is the intent of the padies 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
oth_ers of which would render the provision valid, than the p~ovision shall have lhe meaning or meanings which
would render it valid. Although the printed provisions of this Lease were drawn by Landlord, this Lease shall not
be construed for or against Landlord or Tenant but this Lease shall be interpreted in accordance with the general
tenor of the language in an effort to reach the intended resulL Landlord and Tenant agree that time'is of the
essence with respect to the parfon'nance of the respective obligations set forth in this Lease.
SECTION 2t.23 Hazardous Material
(a) As used herein, ~he term 'Hazardous Material' means any hazardous substance, hazardous material
hazardous waste or toxic substance as such terms are now or hereinafter defined under any Environmental
Statutes or any other material, substance, liquid, effluent or product (including, without limitation, asbestos), the
use and/or disposal of which is now or hereafter regulated by any Environmental Statutes. and/or which now or
hereafter is determined by any state, federal or local governmental authority to be capable of posing a risk of injury
to health, safety or propelly.
(b) Tenant shall not cause, suffer or permit any Hazardous Material to be brought upon, kept, used,
ganerated, manufactured, stored, disposed of. handled, released, or emitted, in or about the Premises ar
Shopping Center by Tenant, its agenta, employees contractors or invitees, except that consl~Jction materials
(other than asbestos or polychlorinated byphenyls), of~ce equipment, and cleaning solutions and other
maintenance materials that are or contain Hazardous Material may be used, handler~ or stored on the Premises,
provided such is in de minimis amounts only and is incidantal to and reasonably necessary for the operation and
maintenance of the Premises for the use permitted hereunder and is at all times in compliance with all
Environmental Statutes and all other applicable governmental requirements. Should any release of any
Hazardous Material occur at the Premises. Tenant shall immediately contain, remove and dispose of.same in
accordance with Section 21.23(c) and (d)hereof.
(c) If the Premises or any equipment, trade fixtures, leasehold improvements, or o{her mechanical apparatus
in the Premises or on the Shopping Center contains any Hazardous Matadal placed there by Tenant or Tananl's
agents, servants, contractors or employees, or released by Tenant or Tenant's agents, servants, contractors or
employees, then Landlord, at its election, shall have the right to ti) cause Tenant to comply wflh all Environmental
Statutes and to contain, remove and prOperly dispose of same, and any material that was contaminated by the
Hazardous Material, off the Shopping Center and to remedy and mitigate all threats to human health or the
anvironment relating to such Hazardous Material, all of the foregoing being "Remediation'. all at Tenant's sole cost
and expense and in compliance with Environmental Statutes and the provisio.ns hereof, or (ii) comply with all
Environmental Statutes or perform the Remedlation ttsalf and to respond to, assess or remediate any condition
posed by the Hazardous Material and all threats to human health'or the 'envir6nment relating to such Hazardous
Material, in which event Tenant shall raimburs~ Landlord, on demand, for all costs incurred by Landlord in doing
so and securing the certificates referred to below.
(d) If Landlord requires Tenant to perform any Remediation, Tenant shall retain the services of an
environmental consultant and an environmental contractor, both of whom most be previously approved in writing
bY Landlord and shall have substantiaI experience in performing such Remediation. Tenant shall submit to
Create Date: April 21, 1999 2:45 PM 35 Print Date April 23, 1999 9:25 AM
::ODMA\PCDOCS\WCONSH1 . ,~6813~
Landlord for approval the insurance certificates of Tenant's environmental consultant and environmental
contractor, a written Remedlafion plan and de{ailed plans and specifications which shall disclose, without
limitation, the dates on which such work is to be performed, the steps to be taken to protect the public In the
Shopping Center, and the HVAC, water, sanitary and storm systems from contamination during the Remediation
process and full compliance with all Environmental Statutes. No work disclosed in the Remediation I~lan shall be
commenced until Landlord has approved all aspects of such Remediation process and Tenant shall only perform
or permit to be performed such work in strict accordance with the process as app~'oved by Landlord. Tenant shall
close for business while such work is being performed. Landlord reserves the fight to monitor the performance of
such work fTom time to time and, if Landlord believes that such work is being done in a manner which permits
Hazardous Material to escape from the Premtsea or violates any applicable IErivironmental Statutes or
Remediation process approved by Landlord, or otherwise constitutes an unsafe condition, at Landlord's direction,
Tenant shall immediately cease such work until such problem has been corrected to Landlord's satisfaction.
Tenant shall replace any conta~irtated equipment or materials removed from the Premises with new equipment or
material performing the same furmtion. If asbeStos is removed from the Premises, prior to replacing the asbestos
with an approved fire retardant material, Tenant shall cause its environmental consultant to perform an air quality
test in the Premises and to certify the results thereof In a letter directed from such environmental consultant to
Landlord and Agent. Tenant shall not install such tire retardant or reopen for business, until the results of such air
quality tests are accepted by Landlord. Tenant shall pedorm such further acts as may be required to make such
results acceptable to Landlord. Upon Landlord's acceptance of the air quality test, Tenant shall install the fire
retardant material and promptly reopen for business.
(e) If Landlord elects to perform the' Remediafion of the Hazardous Material from the Premises, Landlord shall
so notify Tenant of Landlord's anticipated commencement data of such Work ~n~l Tenant shall close for business
not later than such date and remain closed until nctitied by Lendford to reopen whereupon Tenant shall pmrnptly
reopen for, business. If Landlord performs such work it shall do so th compliance with all Environmental Statutes.
If directed to do so by Landlord, Tenant shall remove such of its ~q~w'chandtse, personal property and trade fixtures
as shall be required by Landlord for the completion of such work or Landlord, its contractors and subc~)ntractors,
may relocate the same within the Premises or elsewhere in the Shopping Center during the performance of such
work; neither Landlord, Agent, nor their co~tractors or subcontractors shall be liable to Tenant in any regard for
any damage to or loss of such items or for any other acts occurring in the Premises during the performance of
such work, except in regards to Landlord's negligence or the negligence of its contractors or subcontractors; '
(1') Tenant shall provide to Landlord copies of the following, forthwith after each shall have been submitted,
prepared or received by Tenant or aim/occupant of the Premises: (i) all applications end associated materials
submitted to any governmental agency relating to any Environmental Statute; (ii) all notifications, registrations,
reports and other documents, and supporting information, prepared, submitted or maintained in connection with
any Environmental Statute; (iii) all permits, licenses, approvals, and amendments or modifications thereof,
obtained under any Environmental Statute; and (iv) any correspondence, notice of violation, summons, order,
cemplalnt, or other document received by Tenant or arty occupant of the Premises pertaining to compliance with
or liability under any Environmental Statute.
· (g) Tenant, without the prior wriffen consent of Landl°rd, shall not Install or cause the installation of any above
or underground storage tank or related piping (hereinafter the "Tank') at the Premises or Shopping Center. If
Tenant does install or cause the installation of an), such Tank, Tenant shall comply with all applicable laws as to its
installation, maintenance, operation and closure, inclodthg ar~ requirement for the maintanance of liability
insurance with respect to risks associated with any such 'Tank. If such liabllk'7 insurance is required to be
maintained, Landlord shall be nan3ed as an additional insured thereunder and the provisions of Article 11 hereof
shall apply thereto. Upon termioal:ion of the Lease, Landlord shall have the option of requiring that Tenant,' at
Tenant's sole cost and exPense, remove any Tank installed by Tenant and any associated contaminated material
and perform all tests required by Landlord and any required by applicable Environmental Statutes and provide
Landlord and all required government agencies with the results of such tests in such form as required by Landlord
or as required by Envirenmental Statutes, or Landlord may perform such removal and tests and Tenant shall
reimburse Landlord, on demand, for all costs incurred by Landlord in doing
(h) If the use of the Premises by Tenant or any operation or activity conducted at the Premises during the
Term is such as requires, under any present or future Environmental Statute, the obtaining of an approval or
consent (herein called an "Environmental Approval') by any'governrnental agency, or an acknowledgment by such
agency that such approval or consent is no~ required, (i) in order to change or transfer ownership of the Premises
or any interest in Landlord or in any entity which directly or indirectly controls Landlord, (ii) in order to change or
transfer Tenant's interest in this Lease or any interest in Tenant or in any entity which directly or indirectly controls
Tenant or (iii) in connection with: (a) cessation of all or any operation or ,activity at the Premises for any reason or
(b) a change in or transfer of any operation or activity at the Premises or (c) the expiration or termination of this
Lease (each of the transactions and occurrences referred to in the foregoing clauses (i), (ii) or (iii) being
Create Date April 21, 1999 2:45 PM 36 Print Date; April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH. .6813~2
hereinafter called a "Change"), Tenant, at Tenant's sole cost and expense, shall, in compliance with all
Envimnmentsl Statutes, apply for and, prior to the Change, detiver to Landlord a copy of the required
Environmentsl Approval or acknowledgment and Tenant shall perform all remedial actions required by such
govemmantal agency for the issuance of the Environmental Approval In whole or in part by reason of Tenant's use
of the Premises or operations or activities at the Premises during the Term; provided that as to any Change which
is a change or transfer of ownership of the Premises or of an interest in Landlord or in any entity which directly or
indirectly controls Landlord, Tenant shall instead (il promptly comply with any request of Landlord to'provide such
information, statements or affidavits as to operations and activities at the Premises during the Term, and as to the
use of the Premises by Tenant, as may be determined by Landlord to be necessary, (ii) either promptly perform or,
at the option of Landlord, reimburse Landlord within fifteen (15) days after demand for Landlord's costs of any
Remediation and all remedial actions required by any governmental agency for issuance of the Environmental
Approval and (iii) pay or reimburse Landlord for all other costs and expenses which are attributable to the
existence of Tenant's tenaBcy or to Tenant's use of the Premises or fo any operation or activity at the Premises
during the Term and which were incurred to obtain such required Environmental Approval or acknow;edgrnent.
Tenant covenants, represents and warrants that any application, statement or information made or provided by or
through Tenant pursuant to this subsactJon shall be accurate, true and complete.
(il Tenant agrees to permit Landlord and its authorized representatives to enter, inspect and assess the
Premises at reasonable times for the purpose of determining Tenant's compliance with the provisions of this
Section 21.23 and to perform any Remedlafion pursuant to provisions of this Section 21.23. Such inspections and
assessments may include obtaining samples and performing tests of soil, surface water, groundwater or other
media.
SECTION 21.24 Submission of Lease to Tenant
(al THE SUBMISSION BY LANDLORD TO 'I~NANT OF THIS LEASE SHALL HAVE NO BINDING FORCE
OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF THE PREMISES, NOR CONFER
ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PAR'i~' UN~. THE EXECUTION THEREOF BY
LANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL COPY THEREOF TO TENANT OR ITS
REPRESENTATIVE.
SECTION 21,25 Expenses of Enforcement of Lease
(al If during tine Term, Landlord thcum any expenses whatsoever, including but not limited to attorneys' fees,
relating to the provisions of this Lease or any default hereunder, whether or not Landlord institutes any action or
proceeding against Tenant, Tenant agrees to reimburse Lanolord for all such expenses. NotWithstanding any
provision of this Lease to the contrary, the term "Attorney's Fees' wherever used in this Lease shall mean only the
rsas~nabie charges for services actually pe~ormed and rendered by independent, outside legal counsel.
SECTION 21,26 Shopping Center Lease
(al It is understood and .agreed that this is a "lease of real property in a Shopping Center' as such term is
used in the Bankruptcy Code, and that neither Tenant's interest in this Lease, nor in any estate created hereby
shall pass to any trustee or receiver or assignee for the benefit of creditors or otherwise except as may be
specifically provided therein. Nothing contained in this Sectior~ 21.26 shall be deemed in any manner to limit
Landlord's rights and remedies under the Bankruptcy Code, as presently existing or as may be hereafter
amended.
SECTION 21,27 Performance of Landlord's Obligation by Mortgagee
(al Tenant shall accept performance of any of Landlord's obligations hereunder by any Mortgagee of
Landlord.
SECTION 21,28 Waiver of Jury Trial
(al TENANT HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THE LEASE WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES, AND THEREFORE,
KNOWINGLY, VOLUNTARILY AND INTELUGENTLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION VWTH THE LEASE OR
ITS NEGOTIATIONS OR RELATIONSHIP WITH LANDLORD. TENANT HERESY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF LANDLORD (INCLUDING ITS COUNSEL) HAS REPRESENTED
EXPRESSLY OR OTHERWISE, THAT LANDLORD WOULD NOT IN THE EVENT OF SUCH LITIGATION, SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL TENANT ACKNOWLEDGES THAT LANDLORD
HAS BEEN INDUCED TO ENTER INTO THE LEASE WI~I'H TENANT BY INTER ALIA, THE PROVISIONS OF
Create Date: April 21, 1999 2:45 PM 37 . . Print Date: April 23. 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1 3813~
THIS PARAGRAPH. TENANT FURTHER CERTIFIES THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD
THE OPPORTUNrP~ TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE MAKING OF
THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, .SELECTED OF ITS OWN FREE WILL, AND THAT IT
HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER
CERTIFIES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND EFFECT OF THIS WAIVER.
SECTION 21.29 Applicable Law
(a) THIS LEASE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE IN ~/HICH THE SHOPPING CENTER IS
LOCATED, AND TENANT HEREBY AGREES TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN SAID STATE, OR SUCH OTHER VENUE AS LANDLORD CHOOSES, AND TENANT
AGREES THAT ALL sERVICE OF PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO TENANT AT
TENANT'S ADDRESS SET FORTH ABOVE. AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLE: ~ ED
FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN THE UNITED STATES MAILS,
POSTAGE PREPAID; PROVIDED THAT NOTHING CONTAINED HEREIN WILL PREVENT LANDLORD FROM
BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST ANY SECURITY OR AGAINST TENANT
INDIVIDUALLY, OR AGAINST ANy PROPERTY OF TENANT WITHIN ANY OTHER STATE OR NATION TO
ENFORCE ANY AWARD OR JUDGMENT OBTAINED IN THE VENUE PROVIDED ABOVE, OR SUCH OTHER
VENUE AS LANDLORD'CHOOSES. TENANT WAIVES ANY OBJECTION TO VENUE AND ANY OBJECTION
BASED ON A MORE CONVENIENT FORUM IN ANY ACTION INSTITUTED HEREIN.
SECTION 21.30 Construction Security Deposit
(a) Intenlionally Dele{ed.
SECTION 21.31 Prior Lease
(a). Tenant is presently occupying the Premises pursuant to a lease agreement with Landlord (the aforesaid
lease agreement and any amendmente thereto ,being hereinafter referred to as the "Prior Lease').
(b) The parties hereto agree that the execution of this Lease shall be deemed to satisfy the requirements with
respect to notice of termination set forth anywhere in the Prior Lease, and therefore, it is agreed that the Prior
Lease shall terminate on the day prior to the Commencement Date of this Lease without the necessify of any other
or further notice from or to either party. Notwithstanding the foregoing, in the event Tenant is relocating and
Tenant holds over under the Prior Lease beyond the termination of the Prior Lease as set forth herein, Tenant will
be subject to all holdover obligations pursuant lathe terms of the Prior Lease including but not limited to the
payment of all rent and other charges required thereunder.
(c) . Notwithstanding any role of law, the decision of any Court or any inference therefrom to the contrary, in the
event Tenant has failed to comply with any of its obligations under the Prior Lease, if such failure is continuing,~
Landlord may treat such failure as having occurred under this Lea'se, and in such event, Landlord shall have the
right, in addition to, and not in lieu of, any other remedy at law, in equity or otherwise, to exercise any and ali Of
Landlord's rights and remedies hereunder, including, but not limited to, those set forth in Article 19 of this Lease.
(d) As an inducement to Landlord to execute this Lease, Tenant hereby releases and forever discharges
Landlord from all manner of action, causes of action, suits, coven~nte, controversies, agreements, promises,
damages, claims and demands whatsoever, in law or in equ/ty, which Tenant has or may have against Landlord
adsing out of the Prior Lease.
SECTION 21.32 Satellite Dish
(a) In the event Landlord makes available a satellite dish for the general use of tenants of the Shopping
Center during the Term, Tenant shall be permitted to access such satellite dish at Tenant's sole cost and expense
and in accordance with the terms and conditions of the provider of the satellite dish. Landlord makes no
representatipn or warranty whether the satellite dish will be compatible with Tenant s transmitting or receiving
systems er that Landlord will con§hue to provide same for the duration of the Term.
(b) Tenant shall defend, indemnity and save Landlord harmless from and against any and a I claims, actions,
damages, liability and eXpense in connection with loss of life, bodily injury, personal injury and/or prOperty damage
arising from or out of the use by Tenant or Tenant's agents, contractors, servants or employees of the satellite
dish and related equipment, except to the extent of the negligence of Landlord or Landlord's agents contractors,
servants or employees.
Create Date: April 21, 1999 2:45 PM 38 Print Date; April 23, 1999 9:26 AM
:.ODMA\PCDOCS\WCONSH 'J6813~
EXHIBIT "B"
SIGN REGULATIONS
(a) The purpose of these regulations is to encourage and develop creative and diversified signage for
Tenant's store in compliance wiih the following criteria which shall in any event be limited by the provisions of
Section 8.1 of the Lease.
1. Wording of the signs shall be limited to Tenant's permitted store or trade name. Tenant's customary
signature or logo, hallmark, insignia, or other trade identification will be permiffed only if in conformity with these
sign regulations, and provided such contain no product advertising.
Signs shall consist of individual letters and not of bextype unless approved by Landlord at Landlord's sole
discretion. Exposed lamps, signs of the flaching, blinking or animated type are not permitted.
3. The size of all signs shall be limited and shall be in scale and harmony with the mall. The lettering on
Tenant's sign shall not exceed the following limitations:
(i) Height:
a) Letters of one (1) size shall be consistent in style and size: 16" high maximum, up to 2½" thick, unless
otherwise approved, and pin mounted. The face of all letters must be in the sa~e plane. Pin projections are not
to exceed 1' to the back face of letters.
b) If letters of two (2) sizes are desired than they shall be consistent in style. Capital or upper case letters
are limited to a maximum height of 18" and lower case letters are limited to 12". Approval by Landlord of any
devfations from this criteria shall be at Landlord's sole discretion.
(ii) Area - No lettering shall be located within two feet [2') of any adjacent neutral pier or corridor. Signage
shall be limited to 2/3rds of the length of the storefront width with a maximum length of sixteen feet (16') and shall
terminate a minimum of twenty-four inches (24") from the demising Pier face. The location of the lettering within
the permitted sign area shall be such as to present an orderly appearance of all of the signs of all the tenants in
the mall, taken as a composite or panorama of signs.
4. Printed signs on storefronts or show windows are prohibited with the exception of small-scale signs or
Iogo's which are neatly ieUered on the glass of the storefronL , ,
5. Subject to compliance with all applicable code requ~s, public safety decals on glass in minimum
sizes may be used.
6. Paper signs, stickers, banners or flags may not be used by Tenant.
7. An exterior sign (one located on the outside of Tenant's rear wall) shall be permitted only with Landlord's
prior .written approval and shall be limited to those tenants authorized by Landlord to have a direct rear customer
entrance from the parking area. Such signs shall be subject to Lacdlon:l's sole discretion as to design, size and
location.
8. No exposed raceways, ballast boxes or electrical transformers will be permitted.
g. Sign company names or steeps shal~ be concealed (applicable ordinances and codes permitting).
10. No exposed sign illumination and no flood lighUng of signs or storefronts shall be permitted.
11. No permanent or temporary window signs fastened to the interior or exterior of the show window shall be
permitted except for small signature or identiflcaUon signs lettered directly on the glass, not over four and 0ne-half
inches (4½") in height.
12. No mom than one store sign may be installed on each mall frontage in which one or more customer
entrances are located. If Tenant has mall frontage with a customer entrance on each level of the mall, two signs
may be installed, one on each level of the mall. If Use Premises is a "corner" store, even though a customer
entrance is not located on each frontage, two store signs may be installed, one on each mall frontage of the
Premises. The use of Iogo's is also encouraged.
13. Maximum brightness a owed for interior signs which front on the enclosed mall w~ll be one hundred (100)
foot lamberts taken at the letter face.
14, No portion of any sign shall project more than four inches (4') beyond the storefront unless approved with
a storefront pop-out.
Create Date: April 21, 1999 2:45 PM 1 Print Date: April 23, 1999 9:26 AM
:O~MA~PCDOCS\WCONSH, !t66813~2
15. Signs and identifying marks shall be placed entirely within the boundaries of the Premises with no part
higher than the neutral cudain wall space above the storefront. The bottom of any projecting sign shall not be
located closer than eight feet (8') to the finished floor.
16. Signs for kiosks, promotional displays or for shows will in every instance require the written approval of the
Landlord.
17. Tenant shall comply with the requirements of all applicable codes, and;or local ordinances and obtain local
government approval when required by code.
18. All signs must be approved by Landlord's representative.
19. No wood blocking or flammable construction material is to be used in the attachment of any sign material
above the storefront.
20. No signage shall be installed on slanted bulkheads unless expressly approved by Landlord, which shall be
at Landlord's sole discretion.
(b) Tenant shall submit drawings for Tenant's signs and other methods of identification. Notwithstanding the
fact that such signs and other methods of identification ara in compliance with the foregoing criteria, no such sign
or other method of identification shall be installed by Tenant without Landlord's prior wriffen approval of their size,
type, location, quality and aesthetic propeflfes.
(c) Should there be a conflict between these sign regulations and those in the Tenant Criteria Manual, the
Tenant Criteria Manual shall take precedence. Changes to the requirements of the Tenant Criteria Manual shall
be at Landlord°s sole discretion.
Create Date: April 21, 1999 2:45 PM 2 Print Date: April 23, 1999 9:26 AM
.:OOMA\PC DOCS\WCONSi-, ,t166813~2
EXHIBIT "C"
ELECTRICITY SCHEDULE
(al It is intended by Landlord and Tenant that Tenant's coat of electhcity be included, as Additional Rent, in
the rent raserved in the Lease. Since the use characteristics of Tenant's electrical equipment and fixtures are not
yet known, it is no{ presently posalble for Landlord and Tanent to agree upon the amount to be included as ~
Additional Rent on account of such cost of e ectricity. For that reason, the rent presently set forth in the Lease
does not include the component amount for such cost of electricity. This Electricity Schedule sets forth Landlord
and Tenant's agreement as to the method by which the amount of the Additional Rent related to Tenant's cost of
such electricity will be ultimately fixed. Landlord and Tenant, intending to be legally bound hereby, agree as
follows:
1. No later than twenty (20) days after the date hereof, Tenant shat{ furnish Landlord with such information
as Landlord or Landlord's electrical engineer may reasonably require n order to estimate the connect
which will be used by all of Tenant's electrica ~ .... - ed load
Installations') in the Premises. Based on such information, Landlord or Landlord's electrical engineer shall make
an estimate of the annual total of average monthly charges (the 'Electricity Component') which Tenant would
othenMse be required to pay to the public utility or public authority then furnishing such electr city to the Shopp ng
Center f, on such date, such electricity were being furnished dmrecfly to Tenant as a retail customer of the
aforesaid public utility or public .authority and were not being furnished by Landlord; provided, however, in no event
shall such estimate be based on less than five (5) watts Per square foot multiplied by three hundred (300)
Equivalent Full Load Hours par month (the "Minimum Usage'). Landlord shall notify Tenant, in writing, of the
amount of the Electricity Component and Tenant agrees that the Electricity component shall be paid, as Additional
Rent, in equal monthly ' ·
installments together w~th the monthly installments of Fixed Minimum Rent as provided for
in the Lease· For the purpose' of determining the Electricity Component, the words 'charges which Tenant would
othen~lse be required to pay", shall be deemed to include within their meaning, in addition to the rate fOr such
service (which shall include any adjustment tinder paragraph 5 hereof), all fuel adjustment charges, taxes,
surcharges and all other sums regardless of how denoted which Tenant, as a retail customer, would be required to
pay to the public utility or public authority to obtain al~ty service whether such utility retains such charge, tax,
surcharge or other sure, or is required to pay all or any part thereof to any government, taxing authority or other
governmental Or quasi-governmental agency or authority. For the purpose of Section 7.3 of the Lease, in
determining Landlord's cost of fum!shing alecthc service to the enclosed mall, such cost will be determined in the
same manner and subject to the same adjustments as Tenant's Electricity Component.
2. At any time after the expirstion of one ( 1 ) year from the date of the notice referred to in Paragraph 1. and
from time to time thereafter, if, in Tenact's judgment, Tenant's Electflcal Installations have a lower connected load
or lower demand factor or are used for a lesser number of hours than would justify the Electricity Component
established by Landlord, Tenant shall be entitled to request a reduction of the Electricity ComponenL If Landlord
and Tenant do not agree upon the amount of such reduction, the parlies hereto, agree that an appraisal shall be
made by an independent'third party (the "Umpire') mutually .acceptable to Landlord and Tenant. The Umpire shall
be duty qualified in
expert, whether, terms of professional education and experience so as to be Competent to determine, as an
as of the date of the request fOr a reduction, based upon the criteria set forth above, the
Electricity Component is in excess of the annual amount of the charges which Tenant would otherWise be required
to pay to the public utility or public authority furnishing electricity to the Shopping Center, if, as of the date of the
request for a reduction, such electricity were being ~umished directly to Tenant as a retail customer of the
afOresaid public utility or public authority and were not being furnished by Landlord. If, within thirty (30) days after.
a failure by the parties to agree upon the amount of the reduction, Landlord and Tenant cannot agree upon an
Umpire then Landlord and Tenant shall promptly arbitrate the amount of such reduction before the American
Arbitration Association (the 'Arbitrator'), in acoordance with the rUles of said Association inc uding, but not limited
to, those rUles regarding the manner of selection of the arbitrators, at such ollfce of said Association as the parties
may mutually agree upon; or in the absence of such agreement, at the offices of said Association in the City of
Philadelphia, Commonwealth of Pennsylvania. The afOresaid decision of the Umpire or Arbitrator (as the case
may be) shall set forth (al whether the Electricity Component in effect on the date of Tenant's request for reduction
exceeds, is equal to, or is less than the annual amount of charges which Tenant would otherWise be required to
pay as a retail customer of the. aforesaid public utility or public authority if on such date the same were not being
furnished by Landlord, and (bi if more than or less than such annual amount of ti)e charges which Tenant would
otherwise be required to pay, as aforesaid, the amount of such excess or deficiency. The decision of the Umpire
or Arbitrator (as the case may be) shall be blriding upon both parties and not subject to appeal. Notwithstanding
Create Date: April 21, 1999 2:45 PM I Print Date April 23 1999 9:26 AM
':C;DNIA\PCDOCS\WCONSt-, . ~66813~2'
Tenant's actual usage or anything else set forth herein to the contrary, in no event shall Tenant's usage be
deemed to be less than the Minimum Usage.
3. Tenant reciprocally agrees that, if at any time and from lime to time, in Landlord's judgment, the Electricity
Component is lower than would be justified by the connected load or demand factor or number of hour~ used by
Tenant's Electrical Installations, Landlord may increase the Electricity ComPOnent to an amount which would be so
justified, which increase shall be effective thirty (30) days after notice thereof to Tenant; provided, however,
Ten.ant shall have a right to request a reducUon in such increase in accordance With the procedure provided in
paragraph 2 above.
4. The cost of any such appraisal or arbitration shall be shared equally by Landlord and Tenant;, provided,
however, that if either party requests an appraisal prior to twelve (12) full months after the effective date of the last
preceding appraisal or arbitraUon, as the case may be, the cost of such appraisal Or arbitration shall be paid for by
the party requesting an appraisal. In each case, upon completion of any appraisal or, if necessary, an arbitration,
the Electricity Component (end each monthly installment thereof) shall be adjusted by the amount, E any, of the
excess or deficiency · . .
first day so determined and any change in the Electricity Component shall become efgective as o1' the
o1' the first full calendar month following the month in which the demand for the appraisal was made.
5. If, from time to time after the Commencement Date of the Term, the eleCtrical charges which Tenant would
otherwise be required to pay if it were a retail customer of the public utility or public authority furnishing electricity
to the Shopping Center, as aforesaid, shall be increased or decreased, the parties agree that the Electricity
Component in effect at such time (and each monthly installment thereo0 shall, be increased or decreased to the
same extent, such increase or decrease to become effective as of the effective date of any such increase or
decrease. In the event Landlord is required to pay any tax, surcharge or other sum, regardless of how denoted,
which is or are designed to discourage, limit or in any other manner decrease or control the use of energy, the
Electric!ty Component (and each monthly installment thereof) shall be increased by an equitable proportionate
share of such tax, surcharge or other sum.
6. Notwithstanding any disagreement between Landlord and Tenant with reSpect to the amount of Tenant's
Electricity Component, Tenant agrees to pay to Lar~lord the full amount determined in accordance with Landlord's
determination and shall continue to pay such amount during the pendency of the proceedings referred to in
p, aregraphs 2 and 3 above In the event it shall be subsequently determined that Tenant has overpaid the
Electricity Component, Landlord shall reftmd to Tenant the full amount of such overpayment within thirty (30} days
after such determination is made. Furthermore, at eny time alter the date hereof. Landlord shall have the right (but
not the obligation) to change the method of computing the amount of electricity consumed by Tenant in the
Premises, from the estimated basis set forth above to the actual usage of Tenant, as determined by a meter, and
the cost of electricity actually consumed shall be the cost which Tenant would Otherwise be required to pay as a
retail customer of the public authority or public utility then furnishing electricity to the Shopping Center. Each
month in the Term, Tenant shall pay to Landlord such charges for electricity as Additional Rent. Tenant shall also
be responsible for the costs and installation of sucfl en electric meter.
Create Date: April 21, 1999 2:45 PM 2 Print Date April 23, 1999 9:26 AM
EXHIBIT 2
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NA ~RCHAMT AS~JATX~ Z,~,~
R ~EAL ESTAT! TAX 6.10a.~
RX EXCESS ~ T~ 2,~.95
Y-8 GAL F~-~tE RE~T ~,~.~
3,333.34 :q,3~.34 3,333.34, 3,333.3& 36,666.74
2,03;L93 2,03Z.~3 2.032.93 2, ~Z.93 20,1&9.~8
O,GO 9,1~3.60 O.~ O.OG 3.09r.74
3~.0o 3~O.~ 30o,00 300.00 2,~0.00
65-26 65.26 65.26 65.Z6 552. !9
O-O0 5~.52CR 0.00 O.O0 1 ,Z~,94CR
~0Z.96 go2.~ go2.96 189, ~ ~ ,~.43
4~. ~ ~69. ~ 46~ * 08 469.38 4, ~1.71
0.00 ~,~5.~ 0,~ 0.~
03/14/2802 10:42 ?I7737G429 CAMPHILL MALL PAGE 04/8§
Report Per~ad: 03/O2 Aged Delinquent and Prepaid Balances ;'age: :I J
Jena, L~flg LaSM~a Date: 05/I&/02 I
y.r. BA/ FM)-CA/4
¥-E BAL FUD-ELECTIRI[¢ 9,00:~.Z1 O.O(~ 0.0~ 0.0~ O.OO 9.002.21
Y-H )AL FkO-HVA¢ 3,15&.67 O.O0 O.O0 O.OO O.OO 3,13~,.67
Y-! IAL I~-]N~JJF, A#CE ;~,679.96 0.00 O.O0 O.OO O.OO 2,67'9.96
T-n ~L P~do-lt! ?AX 5,300.12 O.OO 0.00 0.00 0.00 5,300.'t2
YHA BAt. FM)-NERCH Ag~OC
lrRX ML FM).RE ?AX 1.;~57.~ 0.00 0.O0
Total:
EXHIBIT 3
CHARLES W. }OHNSTON
JAMES A. DIAMOND*
*Also Admitted to NJ Bar
LAW OFFICES
JOHNSTON ~gr DIAMOND
A PROFESSIONAL CORPORATION
SUITE 100
150 CORPORATE CENTER DRIVE
P. O. BOX 98
CAMP HILL, PENNSYLVANIA 17001-0098
March 18, 2002
TELEPHONE
(717) 975-5500
TELECOPIER
(717) 975-5511
One Copy Via Certified Mail Return Receipt Requested
And One Copy Via UPS Overnight Air
Edward's Cards & Gifts, Inc.
d/b/a Edward's Cards & Gifts
2049 Stout Drive, Unit B-1
Ivyland, PA 18974
ATTENTION: Chief Executive Officer
Re:
Camp Hill Shopping Center - Store No. C-9
Notice of Deliberate Events of Default and of Lease Termination
Effective March 21, 2002, at 12:01 a.m.
Dear Sir/Madame:
I am attorney for Connecticut General Life Insurance Company (hereinafter "Landlord"),
owner and landlord of the Camp Hill Shopping Center in Camp Hill, Pennsylvania. Please be
advised that Landlord, in exercise of its rights under the Lease, including Section 19.3, hereby
notifies Edward's Cards & Gifts, Inc., trading as Edward's Cards & Gifts (hereinafter "Ed-
ward's"), that its Lease regarding its store at the Camp Hill Shopping Center, and the balance of
the term of the Lease, shall temdnate, cease, and come to an end, effective March 21, 2002 at
12:01 a.m. Edward's is hereby further notified that it is required, on or before that date, to quit
and surrender the demised premises.
The aforesaid termination of the Lease by Landlord is due to Edward's repeated material
breaches of the Lease, including its continuing failure or refusal to pay installments of rent and
other sums under the Lease. Such delinquencies--which have been repeated far in excess of two
times in the past twelve months constitute a Deliberate Event of Default pursuant to the Lease,
including Section 19.2(a).
Edward's Cards & Gifts, Inc.
March 18, 2002
Page 2
As is reflected in the enclosed Statement of Aged Delinquencies, the principal amount of
the accrued delinquency for Edward's as of March 1, 2002, was at least $206,965.37. This fig-
ure does not include any charges or adjustments accruing or assessable after March 1, 2002; any
late charges provided for pursuant to Section 2.6; interest; or legal costs for which Edward's may
be liable under the Lease.
Please be advised that if Edward's does not quit the premises on or before the temfination
date specified above, or does not either immediately pay at least the principal amount of the ac-
creed delinquency, Landlord will be forced to pursue legal action against Edward's.
Thank you very much for your kind attention to this important matter. If you have any
questions, you or Edward's attorney, if it is represented in this matter--should direct them
solely to our offices, as attorneys for Landlord.
Very truly yours,
JOHNSTON & DIAMOND, P.C.
JAMES A. D~OND
i t>/jrf
Enclosure
cc: William Bubel, General Manager
Amy Matthews, Esquire
Michael Boden, Vice President/Regional Manager
03/14/2~02 18:42 7177376429 CANPHILL NALJ_ PAGE 02/~5
I¢yA~rt P~i~: 03/o~ Aged Delinquent ~nd Prepaid llalances Pa;B: 1 I
~th · ~e ~ it i~ ~t~) ' ,-..~: 11 :O&:~ I
10/~1/~) Y-CML FId)-CA C# 2/,,ZIT,,~6 Z4, ZIT.~
10/31~ Y-EML F~-EL CH ~,M3.R 8,~.~
tO/31/~ Y-H ML F~-HV ~ Z,~.6T
tO/S~ ~-~ MC F~-m ~ ~,~.~ 2,4~.06
11/01~ Y-C ML ~-CA CH 1,~.~
~1/Ol/m Y-E MC ~-EL CH 5~.~ 558.~
11/01~ ~ ~ F~-~ CH 165.~ 165.6F
IZ/01~ E EL~RlC c ~ ~a.~
12/DI~ ~ ~WT A CH 165.6~ 185.67
12/01~ R ~ ~TAT ~ ~.87
0Z/01~1 [ I~ CN 165.6~ t65.67
O3/01/01 E ;tECTR~C C C~ 5~-~ 558.~
03/01~ ~ W~ RE~ C8 ~.~ Z~.O0
03/01/01 I IN~CE CH 1~.~ 1~.67
03/01/0t R ~ E~TAT CH 331.~
o4~l s M~z~x. m 3,n3.~ 3,333.~
~/Ol/Ot E EL~IIC C CH 558.~
O~l/~ ~ ~ ~ l~,&? 165.67
~1/~ ~ HE~T A ~ 16~.6T 165.67
~I/01 E EL~TRIC C ~ 5~.~
~/01/01 ~ ~T A ~ 1~.&7 165.61
~I/01 R R~ E~AT CH ~1.~ 331.~
05/021~ RX ~ ~ CN ~.15
~/01/01 ~ ELECTRIC C ~ 5~.~ 5S8.~4
~/01/~ N HV~R~ CH ~.~ 300,00
~/01/01 [ [~ ~ ~.26 63.26
06101/01 R K~L [STAT ~ ~.08 ~-~
07/01/01 s ~R[NI~ ~ 3,~.~
OT/01/Ol E EL~RlC C ~ 556.44
0T/01/~1 I IH~ CH ~.~ &5.Z6
~/01101 O M~IN[N CH ~,~.~ 3,333.3~
~)3/!4/2002 1@: 42 7177376429 CAMPHILL f~LL PAGE 03/05
EDWARDS CARt~ & GIFr
O8/0T/Ol ELECTRIC C
]~
~/01/01 l~
~0/01/0) ELi~IIC C CH
10/01/0f ~V~C ~
?O/01/Ol [ N~RA~
10/~I/0t ~ R~ [STAT
11iOl/0) w~ RE~L
11/~/0t R~ JSTAt CH
12/01/01 EL~TRIC C CH
12/~/01 ll~ cH
12/0i/01 ~A ~APT A
1~/01/01 R~L iITAT
01/01/~ ~/~[~lN CH
01/OJ/O~ ELECTRIC C
01f01/~ HV~ RE~ c~
01/011N ~ NEK~T ~
~ C~
ELECTRIC C
~/01/~ R R~ [STAT
a2128/~ ~X ~ss ~
03/01/~ E EL~TRIC c
6S.~6
189.68
65. Z6
3,~3.~
~,03~.93
~.00
65.Z6
55B.~
~.O0
,69.~
2,~?.93
~-5~
~,0~.93
3,333.34
6.5.26
202. ~6
2, OSZ .93
558.44
300.00
6~,Z6
9, t9~.6.0
1,0~.r8
2, 032. ;3
65.Z6
3,333.3~,.
2.03~.93
558.44
300.00
109.68
4~9.0~
55~,.44
300.00
65,Z6
3.333.34
2,032.93
~00.~
1~9.~
~9,~
6~,~
1~.~
558.~
189.~
~9.~
To'mb:
S M, SE/NI N ilA. M R~NT 50,000.10
CX EXCESS CN~ 12,291.34
E ELECTRIC CHA~E
H RVA~ R;~LA~
IX lff~ IgC. - ~cEs 1,749.L~
R ~E~ ESTATR V~ 6.1~.~
RX EXCESS RE T~ 2.~.~3
Y-8 BAL F~-BAtE RE~T
3,333.34 3,3.T~.~ 3,335.34 3,333.34 ~,~.74
O,OO 9,193.~ 0.~ 0,0~ , 3,~.74
3~.00 300.~ 300.00 300.00 2,~.00
65 - ~6 ~. 26 65.~ 6~, Z6 552. ! 9
O-~ ~.~ 0.~ O.OO 1
469. oe ~69, ~ ~. oa 4~. 08 4. ~31. r?
0.00 0.00 0.00 ~.00
03/i4/2802 1~; 42 7177376429 CAI4PHILL NALL PAGE
rrt Postage
$ ~S7
I
$
3/18/02
~dward'~ards & Gifts, Inc.
i~-~--~ ~ ~'~: .......................
2049 grout Dr., Unit B-I
~7~ .......... ~ .....
I~land PA 189~
· Complete items 1, 2, a~d 3. Also complete
item 4 if Restricted Deliver, is desired.
· Print your name and address o~ the reverse
so that we can return the card to you.
· Attach this card to the back of the mailplece,
or on the front if space permits.
ATTENTION: CEO
Edward's Cards & Gifts, Inc.
t/a Edward's Cards & Gifts
2049 Stout Dr., Unit B-1
I~yland, PA 18974
C. Date of DeliV~
O. Is delivee/ address diffemot fmm item l? I-lYes
tf YES, enter deliv~,...a~ClI~$ I~,w; [] No
/ .-,~>~Z...
[] Registered [] R~Receipt for Merchandise
[] Insured Mail [] C.O.D.
4. Restricts3 Delivmy? (Extra Fee) [] Yes
2. A~icle Number
(Transfer from seP~ce label) 7099 3220 0009 6893 6379
PSForm3~l August200~,',llh,hhh~[.~,~-J~bde~,~l~et~t,H,,l! hh,,lllt,,,J
102595-01 -M-2509
03/14/2082 10:42 7177376429 CAMPHILL HALL PAGE 85/85
JONtiS LiNG
Camp Hill Shopping Mall
32"d St and Trindle Rd.
Camp Hill, PA 1701 !
Phone: 717-737-$527
F~x: 717-737-6429
Suly 12, 2001
Edwards Cards & Gifts
l~onnle Kravitz
2049 Stout Drive, Unit
Ivyland. PA 18974
RE: Camp Hill MaIUEdwards Cards & Gifls/$Wre ii C9
Dear Bonnie K. ravitz:
Thc purpose of this letter is to notify you that you arc in default ul3der the terms ofyour Iease for the premises
identified above. As of the date ofthis letter, you have failed to ti.rnely pay the followi~ itc~ns:
An'¢arag~ and current rent in the ~meunt of $141,620.83.
If payment is not made or other arrangementa suitable to Landlord agr~d to, in writh~ withia the time p~iod
prov/cled to you under your lease, if any, the Landlord w/il be f~e to exem/se any and all remedies available to
it under the lease and the laws of this state including, buI not liraited to, the cormnencement of eviction
procedures. You are hereby also put on notice that your failure to remedy this dcfhult, in a timely mann,r, may
subject you to Landlord's claim for attorney's feez and court costs.
Sincerely,
William Bubel
General Manager
CERTEFIED MAIL RECEIPT #
cc:
Michael Boden, Regional Manager
Amy Matthews, Legal Department
James Diamond, Local Counsel
· John-david Franklin, Leasing
Lisa Billman, Bookkeeper
File
Attorneys for Plaintiffs:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LInE INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & GIFTS, INC., doing
business as EDWARD'S CARDS & Gte'rS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CU~m~J~2~ Cou~r¥, PENN^.
NO. O2 ~/~35'~
CIVIL ACTION - LAW
CERTIFICATION OF ADDRESSES
PURSUANT TO Pa.R.C.P. 236
I, James A. Diamond, Esquire, attorney for Plaintiff in the above matter, hereby certify as fol-
lOWS:
Dated: April 3, 2002
The address of Plaintiff is as follows:
Connecticut General Life Insurance Company
Camp Hill Shopping Mall
32aa Street and Trindle Road
Camp Hill, PA 17011
The last known address of the Defendant is as follows:
Edward's Cards & Gifts, Inc.
d/b/a Edward's Cards & Gifts
2049 Stout Drive, Unit B-1
Ivyland, PA 18974
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Attorneys for Plaintiff
Attorneys for Plaintiffs:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. [lox 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & Gte'rs, INC., doing
business as EDWARD'S CARDS & Gte'rs, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO.
CIVIL ACTION - LAW
NOTICE TO DEFENDANT BY PROTHONOTARY OF
ENTRY OF CONFESSED JUDGMENT FOR POSSESSION
TO: Edward's Cards & Gifts, Inc. d/b/a Edward's Cards & Gifts
You are hereby notified pursuant to Pa. R.C.P. No. 236, that on /'Jf(-~ '] ~ ,2002,
judgment by confession was entered against you in the above-captioned case for ejectment at Store
No. C-9 erected as part of the shopping center known as the "Camp Hill Shopping Mall," located at
32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania.
l:;rdtho~notary (rr~
IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PI.EASE
CONTACT THE ATTORNEY FOR PLAINTIFF:
James A. Diamond, Esquire
150 Corporate Center Drive, Suite 100
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
Telephone: (717) 975-5500
Attorneys for Plaintiff:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND, P.C.
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL Lure INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & GIFTS, INC., doing
business as EDWARD'S CARDS & Gwrs, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
No. 02-1635
CIVIL ACTION -- LAW
AFFIDAVIT OF SERVICE
I, James A. Diamond, Esquire, depose and say that I am attorney for Connecticut General
Life Insurance Company, Plaintiff in the above-captioned matter, and hereby verify as follows:
1. That on April 4, 2002, a Notice of Defendant's Rights in the above-captioned matter
was served by my office and at my direction upon the Defendant by United States Mail, Certified,
retum receipt requested, postage prepaid, addressed as follows:
Edward's Cards & Gifts, Inc.
d/b/a Edward's Cards & Gifts
2049 Stout Drive, Unit B-I
Ivyland, PA 18974
2. The Return Receipt was signed on behalf of the Defendant reflecting delivery and re-
ceipt of the Notice, and was returned by the Post Office to the undersigned. A true and correct copy
of the signed Return Receipt is attached hereto, marked as "Exhibit A," and incorporated herein by
reference.
I make these statements pursuant to 18 Pa. C.S.A. §4904, relating to unswom falsification to
authorities, and understand that any false statements herein may subject me to criminal penalties un-
der that Statute.
Dated: April 22, 2002
JOHNSTON & D~AMOND, P.C.
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Attorneys for Appellant, Connecticut General Life
Insurance Company
-2-
m Potage
(Er.,de,sem~nt Requi~
(E~d~,se~.~t Requlm~
4/4/02
mL Edward's Cards & Gifts, Inc. ]
u" |]~4~'~f's;~ ~'~ .............................................. /
u" / 2049 SCout Dr., Unit B-1 t
...........................................
/ Iv,~land. P 897 /
I, ..... ~,,,.,~,..I,,..- ............... l"lffi ........... ~ ....... /
item 4 if Restricted Delivery is desired.
· Print ycur name and addr~s on the reverse
so that we can return the card to you.
· Attach this can~ to the back of the mailpie¢~
or on the front if space permits.
Edward's Cards & Gifts, Inc.
t/a Edward's Cards & Gifts
2049 Stout Drive, ~nit B-I
Ivyland, PA 18974
i 2, An'icle Number (Copy from service label)
' PS Form 381 1, July 1999
~J~m~ss b e J ow: [] No
4. Restricted Delivery? ~ Fee) ri Yes
7099 3220 0009 6893 6478
Domestic Return Receipt 102595-00-M-0952
CERTIFICATE OF SERVICE
I, JAM~S A. Dn~4OND, Esquire, hereby certify that I have this date served the foregoing
Affidavit of Service upon the following by depositing a copy of the sm-nc in thc United States
Mail, first class postage prepaid, addressed as follows:
Edward's Cards & Gifts, Inc.
d/b/a Edward's Cards & Gifts
2049 Stout Drive, Unit B-I
Ivyland, PA 18974
Dated: April 22, 2002