HomeMy WebLinkAbout02-1637Attorneys _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 1 J v'E INSURANCE
COMVn~rv, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & Gnq'S, INC., doing
business as EDWARD'S CARDS & Gm'rS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. 0'~,. '-t/6 37
CIVIL ACTION - LAW
CONFESSION OF JUDGMENT
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, as follows:
Principal $206,965.37
Attorneys' Fees (15%) 31,044.81
Total $238,010.18
Respectfully submitted,
JOHNSTON & DL~MOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Dated: April 3, 2002
fi~-~/nes A. Di~maond, E~quire
I~l~a. I.D. No. 43902
Attorneys for Plaintiffs:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL Ln~E INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & Gwv$, INC., doing
business as EDWARD'S CARDS & GW-TS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
~o. O~ -/~ 37
CIVIL ACTION - LAW
COMPLAINT IN CONFESSION
OF JUDGMENT FOR MONEY
Plaintiff, CONNECTICUT GENERAL Ltee INSURANCE COMPANY, a Connecticut Corporation,
through its attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C.,
brings this action pursuant to Rule 2950, et seq., of the Pennsylvania Rules of Civil Procedure,
whereby Plaintiff confesses judgment against Defendant, EDWARD' S CARDS & Gwt'S, INC., a Penn-
sylvania Corporation trading as EDWARD'S CARDS & Gtv'~'S, for money in the total amount of
$238,010.18, on the basis of a commercial shopping center lease between the parties relating to
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-l, 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 32aa
Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. A tree 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 true 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 retail business at the Camp Hill Shopping Mail, and does not constitute a residential
lease.
6.
The judgment being entered herein by confession is not being entered against a natu-
rai person in connection with a consumer credit transaction.
-2-
7. 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.
8. 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 I-IVAC 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 .... "
9. 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
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.
10. 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 its default, including by its Notice of Default dated July 12, 2001, and its No-
tice of Default, through its counsel, dated March 18, 2002, true and correct copies of which are at-
tached hereto, collectively marked as "Exhibit 3," and incorporated herein by reference.
-3-
11. Tenant has failed or refused to cure its material monetary delinquencies.
12. The said repeated monetary delinquencies of Tenant, which were continuing as of
March, 2002, and which had been repeated twelve times in the twelve months leading up to March,
2002, constitutes a "Deliberate Event of Default" within the meaning of the Lease, and Landlord cur-
rently has the right under the Lease to confess judgment against Tenant for all of those delinquencies
and for other sums due under the Lease.
13. In this regard, Section 19.7(a) of the Lease provides, in pertinent part, as follows:
(a) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT OR ANY
OTHER SLIMS DLrE HEREUNDER BY TENANT, OR IN THE EVENT OF A
DELIBERATE EVENT OF DEFAULT AS DEFINED HEREIN, TENANT
HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHO-
NOTARY OR ATTORNEY OF ANY COURT OF RECORD WITHIN THE
UNITED STATES OF AMERICA, OR ELSEWHERE, TO APPEAR FOR TEN-
ANT, 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 SUB-
SECTION (a) OR SUBSECTION (b) OF THIS SECTION, AND INCLUDING
ANY AMOUNT TO WHICH LANDLORD WOULD BE ENTITLED AS DAM-
AGES UNDER THE PROVISIONS OF THIS LEASE, INCLUDING, BUT NOT
LIMITED TO, ARTICLE 19, AND FOR INTEREST AND COSTS, AND A REA-
SONABLE ATTORNEY'S COMMISSION NOT TO EXCEED FIFrEEN PER-
CENT (15%) OF THE TOTAL AMOUNT OF SUCH RENTAL AND/OR SAID
OTHER SUMS FOR COLLECTION FOR WHICH THIS LEASE OR A TRUE
AND CORRECT COPY THEREOF, SHAI J. BE SUFFICIENT WARRANT, AND
SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE TERMINA-
TION OR EXPIRATION OF THE TERM OF THIS I.EASE. THE WARRANT OF
ATTORNEY HEREIN GRANTED SHALL NOT BE EXHAUSTED BY ONE OR
MORE EXERCISES THEREOF, BUT SUCCESSIVE ACTIONS MAY BE COM-
MENCED AND SUCCESSIVE JUDGMENTS MAY BE CONFESSED OR OTH-
ERWISE ENTERED AGAINST TENANT FROM TIME TO TIME AS OFTEN AS
ANY OF THE RENT AND/OR OTHER AMOUNTS AND SUMS SHALL FALL
OR BE DUE OR BE IN ARREARS, AND THIS WARRANT OF ATTORNEY
MAY BE EXERCISED AFTER THE TERMINATION OR EXPIRATION OF THE
-4-
TERM AND/OR DURING OR AFTER ANY EXTENSIONS OF THE TERMS OR
RENEWALS OF THIS LEASE. TENANT HEREBY ACKNOWLEDGES THAT
BY AGREEING TO THE FOREGOING CONFESSION OF JUDGMENT AND
WARRANT OF ATTORNEY, TENANT WAIVES THE RIGHT TO NOTICE
AND A PRIOR JUDICIAL PROCEEDING TO DETERMINE ITS RIGHTS AND
LIABILITIES, AND FURTHER ACKNOWLEDGES THAT LANDLORD MAY,
ON DEFAULT BY TENANT UNDER THE LEASE, SUBJECT TO SUCH NO-
TICE REQUIREMENTS, IF ANY, AS ARE HEREIN EXPRESSLY PROVIDED,
OBTAIN A JUDGMENT AGAINST TENANT FOR ALL SLIMS DUE HERE-
UNDER AND LEVY EXECUTION ON SUCH JUDGMENT AGAINST ANY
AND ALL PROPERTY OF TENANT WITHOUT ANY OPPORTUNITY OF
TENANT TO RAISE ANY DEFENSE SETOFF, COUNTERCLAIM OR OTHER
CLAIM THAT TENANT MAY HAVE, AND THAT TENANT KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY GRANTS LANDLORD THE FORE-
GOING RIGHT TO CONFESS JUDGMENT AND WARRANT OF ATTORNEY
AS AN EXPLICIT AND MATERIAL PART OF THE CONSIDERATION BAR-
GAINED FOR BETWEEN TENANT AND LANDLORD. TENANT CERTIFIES
THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED) AT THE SIGNING OF THIS LEASE AND IN THE
GRANTING OF THIS CONFESSION OF JUDGMENT AND WARRANT OF
ATTORNEY BY INDEPENDENT LEGAL COUNSEL, SELECTED OFITS OWN
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 UN-
DERSTANDS THE MEANING AND EFFECT OF THE FOREGOING CONFES-
SION OF JUDGMENT AND WARRANT OF ATTORNEY. TENANT FURTHER
ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL TRANSACTION,
AND THAT THE RELATIONSI-ffP BETWEEN LANDLORD AND TENANT
CREATED HEREUNDER IS COMMERCIAL IN NATURE.
14. Pursuant to the Lease, including in Section 19.7(a) thereof, Tenant, in addition to be-
ing liable for the principal amount of Tenant's said delinquencies, is liable to Landlord for attorneys'
fees for collection equal to fifteen (15%) percent of such damages, together with costs of suit.
15. 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-
-5-
sylvania General Partnership, effective November 1, 2000, in connection with a conveyance of the
property to Landlord.
16. Judgment for possession of real estate was confessed by Plaintiff against Defendant
on April 3, 2002, in Cumberland County, Pennsylvania, at Docket No. O ~- ~ t, ~' cL ~,. . Article
19 of the Lease provides that multiple judgments for money or for the recovery of possession may be
confessed.
17.
As is more fully detailed in the Statement of Delinquencies which is attached hereto
as "Exhibit 2," and incorporated herein by reference, the amount due and payable from Defendant
under this instrument is as follows:
Principal
Attorneys' Fees (15% commission)
Total
$206,965.37
31,044.81
$238,010.18
WHEREFORE, Plaintiff demands that judgment be entered against Defendant in the amount
of Two Hundred Thirty-eight Thousand, Ten Dollars and Eighteen Cents ($238,010.18), as author-
ized by the warrant of attorney contained in the instrument.
Respectfully submitted,
JOHNSTON & DLa~vlOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
/~alfiLp~f. ~. SD .A.NoDi ~13 ~2d, Esquire
Attorneys for Plaintiff
Dated: April 3, 2002
-6-
VERIFICATION
I, NnqA R. Kn~RoY, 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 true 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.
April 2, 2002 N~.A~ Kn. RoY ~' -/ ~
EXHIBIT 1
;:ODMA\PCDOCS\WCONSH; $813~2
INDENTURE OFLEASE
THIS INDENTURE OF LEASE, dated as of the 1'~ day of November, 1998, by CAMP HILL SHOPPING
CENTER ASSOCIATES, a Pennsylvania general partnership ("Landlo~'d"), witl'i a notice address of c/o Kravitz
Properties, Inc. 555 City Avenue, Suite 460, Bala Cynwyd, PA 19004 (Kravitz Properties being hereinafter
referred to as "Agent") and~EEdward's Cards & Gifts. Inc. authorized to do business in the Commonwealth of
pennstyvania, trading as Edward's Cards & Gifts with a notice address at 2049 Stout Drive, Unit B-l, lvyland, 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 center
presentty known as Camp Hill Shopping Center ('Shopping Center*) and presently comprising the area shown in
Exhibit "A", located at 32nd Street and Trindle Road, Cumberland County, Camp Hill, Pennsylvania 17011, the
Premises being measured and described by the following dimensions which are measured imm the outside
building lines of each wall of the Premises or, in the case of those walls separating the Premises from other stores
in the Shopping Center, from the center lines of such walls:
Front: 30' - 0"
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 aod 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 prescribed 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 celled 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 shell terminate on December 31, 2005.
If Tenant's gross sales ara less than Six Hundred and Fifty Thousand Dollars ($650,000) for any
consecutive twelve (12) month period during 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.on or before Mamh 1, 2004.
C. Fixed Minimum RenL
Tenant shall pay to Landlord'a guaranteed annual minimum rent ("Fixed Minimum Rent") for each of the
following periods during the Term as follows:
11/01/98 - 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 o¢ 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
first installment to be paid on the Con~mencement 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 tirst payment of Fixed Minimum Rent shall be prorated for the fractional month
Create Date: April 21, 1999 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. Any 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 States currency and shall, if other than cash, be drawn on a United States bank.
D. Percentage RenL
In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accor(~a~ce with Section 2.1 bf the Lease,
shall pay to Landlord, as Additional Rant (defined herein) hereunder ("Pementage 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 pement (7%) of that portion of Gross Sales (as defined in Section 2.2 of the Lease) during each Lease Year'
which is in excess of the applicable Pementage Rent Gross Sales Base. The Pementage Rent Gross Sales Base
for the following pedods 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 merchandise, plush, costume jewelry,
stationery, gift wrap, office supplies, party goods, gifts, novelties and similar items of a type of merchandise
normally found in card and gift shops and for no other purpose,
Tenant's Fixed Minimum Rent and Percentage Rent 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 Percentage Rent Gross Sales Base upon written notice from Tenant to 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 reduced by at least fifteen percent (15%) over
Tenant's Gross Sales for the corresponding twelve (12) month period of the previous year.
F. Shopping Center Hours of Opera.on.
The present hours of operation of the Shopping Center during which Tenant must have the Premises open
for business with the public (subject to adjustment by 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 the 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 Landlord to the Premises as
follows:
11/01/98 - 12/31/00: $2,700.00 annually; $225.00 monthly
01101/01 - 12/31/03: $3,600.00 annually; $300.00 monthly
01/01/04 - 12/31/05: $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 defined 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 One Dollar and Zero Cents ($1.00)
multiplied by the number of square feet of floor area contained 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\WCON SH 1 3813~
I. Operating Costs and Electricity.
In accordance with and subject to the adjustments set forth in Section 7.3 of the Lease, for each
"Accounfing Period" (as defined in said Section) during the Original Term, Tenant shall pay Landlord on account of
Tenant's share of "Operating Costs" (as therein defined), the annual amount equal to Four Dollars and Eighty
Cents ($4.80) mulflplie(~ 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 ($558.44) per month for electricity which will be adjusted based on actual
usage as determined by a check meter and/or computations by a quafified professional consultant in accordance
with Exhibit 'C'.
J. Marketing Fund and Media Fund.
In accordance with and subject to the adjustments set forth in Article ~15 of the Lease, for each year during
the Original Term, Tenant shall pay to Landlord the annual amount of Fifty Cents ($.50) multiplied by the number
of square feet of floor area contained within the Premises for the Marketing Charge, such amout to be *increased
on January 1" of each year beginning January 1, 2000 by seven percent (7%) of the previous year's payment.
Proportionate Insurance.
In accordance with Section 7.4 of the Lease, for each year during the Odginal Term, Tenant shall pay to
Landlord the annual amount of Fifty 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. Security Deposit.
None.
N. Lease Documents.
In addition to the Indenture of Lease and 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 Regulations
Exhibit "C" - Electricity Schedule
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this
Lease to be duly executed the day and year first above written.
Create Date: April 21, 1999 2:45 PM
LANDLORD:
CAMP HILL SHOPPING CENTER ASSOCIATES
Oona'td. ANJ Mit(eF, Oe-n~raT ~'~rt~er
)
TENANT:
EDWARD~ CARDs &'GIFTS, INC.
- BY:
A~rEST:
::ODM~,\PC DOCS\WCO NSH 1\' H3',2
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 preparad by Landlord,
wherein Tenant shall: (1) certify that the Lease is in full force and effect and (2) certify the commencement and
termination dates of the Original Term.
(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, ,a~d Tenant hereby waives notice to
vacate the Premises and agrees that Landlord shall be entitled to the benefit of all 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 date 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 Odginal 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 full force and effect,
but Tenant's monetary obligations hereunder, except for payment of the utility charges and the HVAC Charge,
shall be abated until the Oflginal 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 Pementage Rent which Landlord expects to supplement the Fixed Minimum Rent to provide such fair
and adequate rental return. Therefore, (i) if Tenent fails to open for business at the Commencement Date and/or
(ii) thereafter, if Tenant fails to conlinuously 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, in addition to all other charges which are due hereunder, one-thirtieth (1/30th)of
an amount equal to the monthly installment of Fixed Minimum Rent for each day which Tenant fails to so operate.
SECTION 1,3 Certain Definitions
"Attorney's Fees" has the meaning set forth in Section 21.25.
'Accounting Pedod' 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 set forth in Section 2.6.
"Commencement Date" has the meaning set forth in Paragraph B of the Indenture 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 made available by Landlord, Common Areas shall include, but not be limited to,
the sidewalks, parking areas, access roads and drives, driveways, parking de~:Es, bridges, landscaped areas,
track serviceways, 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
Create Date: April 21, 1999 2:45 PM 1 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\1' 13~.
"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 forth In Section 1.1(c).
'Lease Year" means [he twelve (12) full 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 (31 st) 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 moaning set forth in Section 7.2.
"Original Term" has the meaning set forth in Section 1.1.C.
'Percentage Rent" has the moaning set forth in Paragraph D in the Indenture of Lease.
"Pementage Rent Gross Sales Base' has the moaning set forth in Paragraph D in the Indenture of Lease,
"Premises" has the meaning set forth 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 moaning 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 set forth in Section 4.2(b).
ARTICLE 2
RENT
SECTION 2.1 Percentage Rent
(a) The Percentage Rent shall be payable without prior demand and without any setoff or deduction
whatsoever, at the timos 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 firat 'Lease Year" of the Term and, unless
Landlord exercises its option as set forth In the next sentence hereof, thereafter not later than thirty (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 of the first Lease Year containing twelve (12) complete calendar months, Landlord, at
Landlord's option to be exercised by written notice to Tenant. may require Tenant to pay, as Additional Rent,
together with each monthly installmont 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 (1/12th) of
eighty percent (80%) of the Pementage Rent payable for the immediately preceding Lease Year. Notwithstanding
anything herein to the contrary, Landlord will not exemise it's option to collect monthly installments of Percentage
Rent rn any Lease Year until Tenant has reached it's Percentage Rent Gross Sales Base for such Lease Year.
Thereafter, Tenant shall continue to pay estimated payments of Percer{tage 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
Create Date: April 21, 1999 2:45 PM 2 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I~' 13~2
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 (1/12th) of eighty pement (80%) of the Percentage Rent payable for the Lease Year
immediately preceding such adjustment and commencing with the payment of Fixed Minimum Rent due
Immediately after receipt by Tenant of notice of such adjustment, Tenant shall continue to pay such adjusted
amount until the next adjustment. Although estimated Percentage Rent shall be payable monthly as aforesaid, the
final computation and payment shall be on an annual basis. Within thirty (30) days after receipt of each notice
from Landlord implementing the foregoing 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 fraction, the numerator of which shall be the number of days contained in such Lease
Year and the denominator of which shall be three hundred stxtyoflve (365).
(d) In the event the amount of the Percentage Rent Gross Sales Base set forth herein is subject to
adjustments during the Term, and the date on which such adjusb'nent 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 Adjustment Date shall fall shall be the sum of;. (1) the lesser Percentage Rent Gross Sales Base set forth
in the Indenture of Lease multiplied by a fraction, the numerator of which shall be the number of days in the period
commencing on the first day of the Lease Year in which the Rental Adjustment Date shall fall and ending on the
day immediately prior to the Rental Adjustment Date and the denominator of which shall be three hundred sixty-
five (365), plus (2) the greater Pementage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by
a fraction, the numerator of which shall be the number of days in the period commencing on the Rental Adjustment
Date and ending on the last day of the Lease Year in which the Rental Adjustment Date shall fall and the
denominator of which shall be three hundred sixty-five (365). ,
(e) Except as provided herein to the contrary, there shall be no abatement, apportionment or suspension of
the Percentage Rent payable hereunder. If pursuant to any other section of this Lease, Tenant should be entitled
to an abatement, apportionment or suspension of the Fixed Minimum Rent payable hereunder, Tenant shall
continue to pay to Landlord the Percentage Rent during the pedod in which the Fixed Minimum Rent shall have
been abated, apportioned or suspended; and dudng any and all Lease Years in which there shall be one or more
such pedods, the Percentage Rent 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 Rent Gross Sales Base
shall be deemed to be reduced to zero for such days. In the event that any reduction of the Percentage Rent
Gross Sales Base is applicable to one or more days during a Lease Year, the Percentage Rent GrOss Sales Base
to be used in calculating the Percentage Rent for such Lease Year shall be determined by averaging on a daily'
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' as used herein shall mean the gross amount of all revenue generated by sales,
rental, performance of services or otherwise by Tenant and/or by any subtenant, licensee or concessionaire in, at
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 inability or failure to collect) including, but
not I'imited to, such sales, rental, and services (1) as a result of transactions originating in, at or from the Premises,
whether delivery er performance is made from the Premises or from some other place; (2) pursuant to mail,
telephone, telegraph, telecopy, fax, closed TV cimuit, and other devices, automated or otherwise, whereby orders
are received at the Premises or (3) which Tenant or any subtenant, licensee 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 shall be made, irrespective of the time when Tenant shall receive payment therefor.
(b) The following shall be deducted from Gross Sales if originally included therein, or excluded therefrom, as
the case may be, provided separate records are supplied supporting such deductions or exclusions, namely: (1)
any exchange of memhandise between stores of Tenant where such exchange is made solely for the convenient
operation of Tenant's business and not for the purpose of consummating a sale made in, at or from the Premises,
(2) returns to shippers or manufacturers, (3) cash or credit refunds to customers on transactions otherwise
Create Date: April 21, 1999 2:45 PM 3 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\' )13~2
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) receipts from 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 Eom Gross Sales.
SECTION 2.3 Percentage Rent Statements
(a) Not later than the fifteenth (15th) day after 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
certi(ying same to be true and con'ect. If the Commencement Date hereof shall not be the first day of a calendar
month, the period between the Commencement Date and the first day of the first full calendar month in the Term
and Tenant's Gross Sales during such period shell be added to the first calendar month for both the purpose of the
computation of Percentage Rent and the purpose of repor~ng of Gross Sales.
(b) Not later than the date set forth in Section 2.1(b) hereof, Tenant shall submit to Landlord 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 authorized officer or
represe, ntative, stating that the Gross Sales reported by Tenant are in accord with the amount thereof set forth on
Tenant's regularly maintained books and records and that the Gross Sales conform with and are computed in
compliance with the definition of Gross Sales contained in this Lease. Simultaneously with the delivery of the
statement referred to in the preceding 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 to Landlord, any excess of
estimated Pementage Rent that Tenant may have paid for such Lease Year over the Pementage Rent actually
due for such Lease Year shal! be refunded to Tenant within thirty (30) days; provided, if such overpayment is for
the last Lease Year, Landlord shall not be obligated to refund to Tenant the amount of such overpayment until
Tenant has fully performed all of its obligations under the 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 Eom 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 bindrng 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
(a) 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. Furthermore, 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 trail 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
memhandise into and the delivery of all memhandise from the Premises during the Term and Tenant shail retain
such books and records, copies of all tax reports submitted to the appropriate taxing authorities, as we{I 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 referred to as 'books and records'), for at least three (3) years
from the end of the Lease Year to which they are applicable, or, if an audit is commenced or if a conb'oversy
should arise between the parties hereto regarding the rent payable hereunder, until such audit or controversy is
terminated even though such retention period may be after the expiration of the Term of, or earlier termination of,
this LeaSe. Such books and record, s 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 duly authorized representatives, who shall
Create Date: April 21, 1999 2:45 PM 4 Print Date: April 23, 1999 g:26 AM
::ODM~,\PCDOCS\WCO NS H 1\1 13~2
have full and free access to such books and records, the right to audit such books and records and the right to
require of Tenant, its agents and employees, such information or explanation with respect to such books and
records 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 reschedule such inspection and/or audit, Tenant shall
reimburse Landlord, on demand, for Landlord's out-of-pocket expenses relating to such rescheduling.
(b) In the event Tenant violates the provisions Of Section 2.4(a) and as a result of such violation, Landlord, or
its duly authorized representative, Is unable to conduct a proper examination and/or audit, the parties agree that
Landlord shall have been deprived of an important right under this Lease and, as a result thereof, will suffer
damages in an amount which is not readily ascertainable and thus, in such event, Landlord In addition to and not
in lieu of any other remedies which Landlord has under this Lease, at law or in equity, shal{ 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 periods in question.
SECTION 2,5 Audit
(a) If the examination and/or audit referred to in Section 2.4 shall disclose that Tenant has understated its
Gross Sales by three percent (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
(a) ' All sums of money or charges required to be paid by Te~lant 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, be collectible as rent with the next Installment of Fixed Minimum Rent thereafter falling due hereunder
together with a late charge of fifteen percent (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 any 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
(a) For the purposes of this Section 3.1, the word "Taxes' shall include all Taxes attributable to improvements
now or hereafter made to the Shopping Center or any part thereof or attributable to the present or future
installation in the Shopping Center or any part thereof of fixtures, machinery or equipment, all real estate Taxes,
assessments, water and sewer and other govemmental impositions and charges of every kind and nature
whatsoever, nonrecurring as well as recurring, general or special assessments, ordinary as well as extraordinary,
foreseen and unforeseen, all metropolitan disb'ict 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 lim~tod 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 eve~ 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, or any interest in, the Shopping Center or any part thereof, or any land, buildings
or other improvements therein, less all 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.
(b) For each "Tax Year" (as defined in Section 3. l(e) hereof) during the Original Term, Tenant shall pay to
Landlord as Additional Rent ("Tax Rent"), the amount obtained by multiplying the total of all Taxes payable during
such Tax Year by a fraction, the numerator of which shall be the square feet of floor area of the Premises and the
Create Date: April 21, 1999 2:45 PM 5 Print Date: April 23, 1999 9:26 AM
::ODM,5\PC DOCS\WCONSH 1' 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
(1112th) of the annual amount payable on account of Tax Rent, as set forth in the Section H of the Indenture of
Lease for each square foot of floor area contained within the Premises, Such amount may be adjusted by
Landtord 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. If 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 all of its obligations under this Lease
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 Hght 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 from 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 statement shall be applied by Landlord toward payment
on account of Tenant's obligation for Tax Rent 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 I~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 Hght to
bill Tenant for Tenant's share of the Tax Rent for the last Tax Year in the Term whether or not Landlord shall
theretofore have received a tax bill covering the period from the date of the Tax Bill which formed the basis of the
most recent installment on account of Tax Rent billed to Tenant to the expiration of the Term. 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 floor 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 amount upon billing
by Landlord.
(d) As used in this Lease, 'Excluded Areas" shall mean portions of the Shopping 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, all basement space, all out parcels 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 floor area in
enclosed buildings which are erected on portions of the Shopping Center other than 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 portion thereof (other than
the Premises which shall be determined by the provisions of the Indenture of Lease), the substantially accurate
determination of Landlord shall 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 immediately following the Commencement Date and ending December
31st of such calendar year and each succeeding twelve (12) month period thereafter commencing in the Term;
provided, however, the first Tax Year shall commence 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-five (45) days after receipt of the refund, Landlord shall pay to Tenant that percentage 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
Create Date: April 21, 1999 2:45 PM 6 · Print Date: April 23, 1999 9:25 AM
::ODMA\PCDOCS\WCONSH 1\1 ;13'2
Tenant bears to the entire amount of such Taxes immediately prior to the refund. Tenant shall not institute any
proceedings with respect to the assessed valuation of the Shopping, Center or any part thereof for the purpose of
securing a tax reduction. In the event the Landlord shall retain any consultant to negotiate the amount of Taxes,
tax rate, assessed value and/or other factors influencing the amount of Taxes and/or institute any administrative
and/or legal proceedings challenging the tax rata, assessed value or other factors influencing the amount of
Taxes, whether or not such action results in a reduction in the amount of Taxes, Tenant's Tax Rent shall include
the portion of the aggregate of all such reasonable fees, reasonable attorneys' and appraisers' fees and all
disbursements, court costs and other similar items paid or incurred by Landlord dudng the applicable Tax Year
with respect to such proceedings which is obtained by multiplying the aggregate of such sums by the fraction set
forth in Section 3.1(b) hereof. Landlord shat~ have no obligation to contest, object to or litigate the levying or
imposition of any Taxes and may settle, compromise, consent to, waive or otherwise determine in its discretion
any Taxes without the consent or approval of Tenant.
(h) If at any time dudng the Term, as an addition to or substitute for Taxes, in whole or in part, as same are
set forth in Section 3.1(a), and whether or not customary or In the contemplation of the parties on the date of this
Lease, under the laws of any one or more jurisdictions in which the Shopping Center is located, a tax, imposition,
charge, assessment, levy, excise or license fee is levied on, imposed against or measured, computed or
determined, 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 Center, or any
portion thereof, or (4) if any other tax (except Landlord's capital stock, income, inheritance, succession or estate
tax), imposition, charge, assessment, levy, excise or license fee which is not referred to in Section 3. l(a), however
described or denoted, shall be levied or imposed by any such judsdlctton, to the extent that the cost of any 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
(a) ' 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 sales tax, excise tax,
value added tax, business privilege tax, use and occupancy taxes, taxes assessed for trash generation, special
services district taxes and other taxes assessed upon the consideration to be received by Landlord under this
Lease, and other similar taxes (not including, 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, Percentage 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.
(b) Tenant shall also pay to the appropriate agency or to Landlord if Landlord is charged with the
responsibility of collecting such monies, prior to the time the same shall become delinquent or payable with
penalty, all taxes imposed and/or assessed upon Tenant's inventory, fui:niture, trade fixtures, apparatus,
equipment or leasehold improvements installed by Tenant or by Landlord on behalf of Tenant, and any other
property of Tenant.
ARTICLE 4
CONDITION AND REMODELING OF PREMISES;
CHANGES TO THE SHOPPING CENTER
SECTION 4,1 Condition of Premises
(a) Tenant has had the oppo~unity fo examine the Premises and hereby agrees to accept them in the "as is"
condition existing on the Commencement Date. Tenant further acknowledges that neither Landlord nor Agent has
made any representations as 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 every day after the expected delivery 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.
Create Date: April 21, 1999 2:45 PM 7 Print Date: April 23, 1999 9:26 AM
::ODM,~.~PCDOCS\WCONSH ltl 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 walls 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.extar[o~ of the Premises, provided that
access and visibility to the Premises shall not be substantially denied. Landlord also reserves the right after
written 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 time to make such repairs, additions or alterations as it may deem
necessary or desirable to the Premises, to thebuilding 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 ceiling (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 otherwise exist), or another
location which does not materially interfere with Tenant's use of the Premises~ Landlord's rights hereunder may
be exercised by Landlord's designee. Tenant shall not remove or tamper with any such pipes or other apparatus
installed by Landlord.
(b) Landlord hereby reserves the right at any time to make alterations or addftions to, and to build additional
stories on, and to build any adjoining buildings in the Shopping Center, including the building in which the
Premises are contained, and to construct 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 right to reduce or enlarge the area of the Shopping Center by excluding portions of the
ground therefrom or adding additional ground thereto from time to time, and whether or not so reduced or
enlarged, to construct multi-deck elevated or subterranean parking facilities.
(c) If any excavation shall be made 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 building 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 or diminution or abatement of rent.
(d) Landlord reserves the right to install heating, air-condiboning, ventilating equipment, kiosks, fountains,
benches, seating arrangements, promotional activities, seasonal displays, temporary stores, amusement devices
and other amenities in certain potions 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 certain 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 Re'loca~e Tenant
(a) The purpose of the plan hereto annexed as Exhibit 'A" is solely to show the approximate location of the
Premises and the present layout of the Shopping Center, 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 from time to time fo 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 shown on such plan.
(b) Notwithstanding anything to the. contrary contained in this Lease, in connection with any expansion,
enlargement or rearrangement of the Shopping Center or any aspect thereof, Landlord 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
Create Date: April 21, 1999 2:45 PM 8 Print Date: April 23, 1999 9:26 AM
::O DM,~,\PCDOCS\WCON SH 1\' 't13~
provisions hereof. In the event Tenant fails to notify Landlord that Tenant will relocate within the aforesaid time
frame, or fails to notify Landlord of its decision with respect to such relocation, or Tenant refuses to relocate, then
at any time thereafter Landlord may cancel this Lease upon fifteen (15) days' prior wdtten notice to Tenant, in
which event this Lease will expire on such date as though the 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 result of such cancellation. 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 than
the date specified in Landlord's notice to Tenant 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 Tenant'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 vacate the Premises and peaceably surrender possession thereof to Landlord in
accordance with the previsions 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 lieu ofthe Premises. Atthe request of Landlord, the parties 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 be amended automatically to bear the same
relationship to the Fixed Minimum Rent and Percentage Rent Gross Sales Base presently set forth in the Lease as
the existing area of the Premises bears 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 thereafter
for the balance of the Term, Tenant shall continuously occupy and use the Premises solely ~or 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 as, a discount,
off-pdce 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 shall be deemed a matedal breach of the Lease. In addition, Tenant agrees
that Tenant shall not operate or cause or permit to be operated any catalogue, mail, or telephone order sales in or
from the Premises except the incidental sale of merchandise which Tenant is permitted to sell over the counter to
customers in the Premises pursuant to the permitted 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 authorization of the use of the Premises for the business purposes set forth in the Indenture of Lease does
not constitute a representation or warranty by Landlord that any particular use of the Premises is now or will
continue to be permitted under applicable laws or regulations.
(b) Tenant shall not permit, allow or cause any of the following to be conducted in the Premises: any public or
private auction, or any sale which would indicate to the public that Tenant is bankrupt, is going out of business, or
has lost its Lease. Tenant shall not use or permit any use of the 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
merchandising in the Shopping Center. 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 not
Pementage Rent is payable hereunder, Tenant agrees that commencing with the Commencement Date and
thereafter throughout the Term, Tenant will continuously, actively and diligently operate or cause the permitted
business to be operated in good faith and in an efficient, businesslike and respectable manner, maintaining in.the
Create Date: April 21, 1999 2:45 PM 9 Print Date: Aprit 23, 1999 9:26 AM
::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 profitab!e Gross Sales which can reasonably be produced from the Premises shall be produced.
(el Throughout the Term, Tenant shall cause its store to remain open each day of the week during the hours
set forth in Paragraph F of the Indenture of Lease. Tenant agrees that the hours during which Tenant is ~)bligated
to operate may be changed by Landlord from time to time provided that Landlord will not act in a discriminatory
manner,
(fl Tenant shall operate and/or advertise the business operated at or from the Premises only under the name
set forth in the first page of the Indenture of Lease, unless and until the use of another name is permitted in writing,
by Landlord, Tenant represents that it is entitled to use 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 permiffed 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 property which are stored by Tenant other than within the
Premises are stored at Tenant's sole risk and Landlord shall not be liable t~ Tenant in any manner whatsoever 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 of the Premises
Tenant covenants and agrees that Tenant at its own cost and expense:
(al 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,
ret-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 writing 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 elsewhere on the exterior thereof;
(el Will not usa 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 other advertising medium, including without limitation, flashing lights
or search lights which may be heard or experienced outside of the Premises;
(fl Will keep alt mechanical apparatus free of vibration and noise which may be transmitted beyond the
confines of the Premises;
(gl 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;
(il Will not permit the perking of delivery vehicles so as to Interfere with the use of any driveway, walk,
parking area, or other Common Areas in the Shopping Center,
(j) Will comply and will cause compliance with all present and futum sta~u~es, laws, roles, regulations,
guidelines, orders, ordinances, directives and other requirements of applicable federal, state and local
governmental authorities, commissions, boards and agencies and all present and future requirements of common
law, with respect to (il Tenant's obligations unde~ this Lease, (ii) the Premises, (iii) Tenant's use of the Premises
and Shopping Center, (iv) any work to be performed 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, treatment, storage, transportation,
release, emission, disposal, Remadiation 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
Create Date: April 21, lggg 2:45 PM 10 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\1¢ 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 of any such permits, licenses, approvals, notifications and registrations. In addition,
Tenant shall 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 pedodlo 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 e, quipment (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 order to obtain insurance at the lowest available premium rate throughout the Term;
(k) Will not receive or ship articles of any kind except through the facilities provided for that purpose by
Landlord and will not pen'nit any delivery of goods, supplies, merchandise, or fixtures to or from the Premises to be
made 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 efforts to schedule such deliveries outside Shopping Center business hours,
except with Landlord's approval in emergency situations;
(I) Will light the show windows of the Premises and extedor 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, sidewalks and
loading docks free Eom ice and snow, and Tenant hereby agrees that Tenant is solely liable for any accidents
occurring on said outside areas due or alleged to be due to any accumulation of ice and snow;
(n) Will refer to the name of the Shopping Center in all advertising done to promote sales at its store or stores
in the geographical area in which the Shopping Center is located, th adve~sing 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
as permission to continue such use after such termination of the Lease or regarding locations other than the
Premises, and Tenant agrees that such name or other identification 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 the Premises. In all local
and regional 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 wil!
not permit any foreign substance of any kind to be thrown therein and the expense of repairing any breakage,
stoppage, seepage or damage, whether occurring on or off the Premises, resulting from a violation of this
provision by Tenant or Tenant's employees, agents or invitees shall be borne by Tenant. All grease traps and
other plumbing traps shall be kept clean and operable by Tenant at Tenant's own cost and expense. Tenant shell
keep the floor of the Premises and all penetrations 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 certs in the Common Areas even if taken there by customers;
lq) 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
la) Landlord reserves the right from time to time to adopt and promulgate reasonable rules and regulations
applicable to the Premises and the Shopping Center 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 Tenant and Tenant agrees thereupon to comply with
and observe all such rules and regulations. To the extent Ixacticable, the same shall be applied uniformly to
substantially all non-department store retail tenants of the Shopping Center.
lb) Landlord's rights and remedies in the event Tenant shall fail to comply with and observe such rules and
regulations shall be the same as though such rules and regulations werf.~ set ~o~h in Section 5.3 of this Lease.
SECTION 5.5 Competition
la) Tenant acknowledges that Landlord's obtaining a fair and equitable rental depends upon Tenant
concentrating all of its business efforts 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
Create Date: April 21, 1999 2:45 PM 11 Print Date: April 23, 1999 9:26 AM
::ODMA~PCDOCS\WCONSH1V 313~2
that any activity.by Tenant within such geographical area in operating or participating in the operating of a similar
or competing business must necessarily have an adverse effect on the volume of Gross Sales by Tenant at the
Premises to the detriment of Landlord and will deprive Landlord of the fair rental to which the parties agreed.
Accordingly, in the event that during 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 entities 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 set 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 either (i) cancel this Lease upon thirty (30) days prior written notice to Tenant, (ii)
include the Gross Sales of any such ot~er place of business in the Gross Sales made from the Premises to
determine the Pementage Rent due under this Lease, as fully as though such Gross Sales had actually been
made from the Premises, or (iii) increase the annual amount of Fixed Minimum Rent payable thereafter, and each
component thereof if the Fixed Minimum Rent is othen~ise subject to increase, by an amount equal to the highest
Pementege Rent payable by Tenant in any calendar year prior to the opening of such other business, th the event
Landlord so elects, all of the provisions of Article 2 hereof shall be applicable to the Gross Sales of, and all the
books and 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 parking 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 tan (10) days of a request therefor and shall thereafter .nofify,Lendlord of any changes within ten
(10) days after such changes occur. In the event that Tenant or its employees park their care 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 parked in any areas other than those designated.
ARTICLE 6
GRANT OF CONCESSIONS
SECTION 6.1 Condition to Grant
(a) The provision against subletting elsewhere contained in this Lease shall be applicable so as to prohibit
Tenant from granting concessions without the consent of Landlord for the operation of one or more departments of
the business of Tenant, and any grant of concessions consented to by Landlord shall be subject to the conditiqns
that (i) each such concession which may be granted by Tenant shall be subject to all the terms and provisions of
this Lease; (ii) the Gross Sales from the operation of each such concession shall be deemed to be a part of the
Gross Sales of Tenant for the purpose of determining the Percentage 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 concession; (iv) unless otherwise approved in writing by Landlord, such department or
departments shall be operated only es pert of the business operation generally conducted by Tenant on the
Premises and under the advertised name of Tenant; and (v) at least seventy-five percant (75%) of the sales floor
area of the Premises shall at all times be operated directly by Tenant.
ARTICLE 7
COMMON AREAS
SECTION 7.'1 Control
(a) All Common Areas in or about the Shopping Center shall be subject to the exclusive control of Landlord.
Landlord shall operate, manage, equip, pollca, r~ht, surface and maintain the Common Areas all in such manner
as Landlord. in its sole discretion, may, from time to time de~ermine (including without limitation, the right to keep
any enclosed mall open only during the hours designated by Landlord) and Landlord shall have the sole right and
exclusive authority to employ and discharge all personnel with respect thereto. Landlord hereby expressl~
reserves the right from time to time to construct, maintain and operate lighting and other facilities, equipment and
signs on all of the Common Areas; to police and maintain security for the Common Areas; to use and allow others
to use the Common Areas for any 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 enforce parking charges (by operation of meters, or otherwise) with appropriate provisions for
parking ticket validation for tenants; to close temporarily, all or any portion of the Common Areas for the purpose
Create Date: April 21, 1999 2;45 PM 12 Pdnt Date: April 23, 1999 9:26 AM
::ODM/~,\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 enforce reasonable roles and regulations with respect to the Common Areas and tl~e 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 dghts 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 type 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 compensation or diminution or abatement of rent therefor, nor shall such alteration, rearrangement,
revocation, change or diminution of such Common Areas be deemed a constructive or actual eviction or otherwise
be grounds for terminating or modifying this Lease. In order to establish that the Shopping Center or any portion
thereof is and will continue to remain private property and to prevent a dedication thereof or the accrual of any
rights to any person or to the public thereon, Landlord hereby reserves the unrestricted right, in Landlord's sole
reasonable discretion, to 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 accrual of any rights to any
person or the public thereon; provided, however, Landlord reserves the right at any time and from time to time to
dedicate to public use part or all of the ring roads, access roads, drives and utility lines, together with all
easements required to effectuate such dedications, as it may see fit.
SECTION 7.2 Operating Costs
(a) Landlord (subject to reimbursement as set forth 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 ba those costs of operating, repairing, managing, maintaining, and replacing 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, all 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 all costs
related to said coverage) with such policies and companies and in such limits as selected by Landlord (including,
but not limited to, all 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 excluding the insurance referred to in Section 7.4
hereof); removing snow, ice, rubbish and debris; inspecting, policing, providing security and regulating traffic;
rental of sweepers, trucks and other equipmen.t; 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-s~ta water lines, sanitary sewer lines, storm water lines, Common Area heating, ventilating and air-conditioning
systems, floors, floor coverings, canopies, skylights, fountains, escalators, electrical lines and other equipment
serving the property 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
uniforms; the rental of music programs, services and loudspeaker systems including the furnishing of electricity
therefor; all costs incurred by Landlord in compliance with any environmental or other similar laws, rules,
regulations, guidelines or orders, including the cost of removing Hazardous Materials from the Shopping Center;,
the cost of obtaining and operating public transportation oi' shuffle bus systems used in connection with bringing
customers to the Shopping Center;, stormwater management facilities; the gross compensation and fringe benefits
of the mall manager, the mall office personnel and all other on-site personnel required to supervise and
accomplish the foregoing and an administrative charge equal to fifteen (15%) per cent of the total of all Operating
Costs (exclusive of such administrative charge). Operating Costs shall not include depreciation other than as
speciticalty referred to above. In the event of any dispute as to whether an item represents an expense or a
capital item, Landlord'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 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\1 13~
(b) . On the first day of each calendar month during that portion of the Term falling within the first Accounting
Period during the Original Term Tenant shall pay to Landlord, in advance, without demand and without any setoff
or deduction, as an estimated 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 per square foot set forth in Paragraph ! of the Indenture of Lease. If the Commencement
Date hereof shall not be the first day of a calendar month, Tenant's payment of its proportionate share of
Operating Costs for the fractional month between the Commencement Date and the first day of the first full
calendar month in the Term shall be prorated on a per diem basis (calculated on a thirty (30) day month) and shall
be paid together with the first payment of Fixed Minimum Rent.
(c) After the first Accounting Period, Tenant shall continue to pay such estimated amount of Tenant's
proportionate share of Operating Costs on the first day of each month in advance without demand and without any
setoff or deduction, but the aforesaid estimated amount of Tenant's share of Operating Costs may be adjusted and
revised by Landlord after the end of each Accounting Period during the Term on the basis of the projected
Operating Costs for the subject Accounting Period, within Landlord's reasonable business judgment, Upon
Landlord furnishing to Tenant a statement setting forth such revised estimated Operating Costs, Tenant shall pay
to Landlord such revised estimated share in equal monthly installments, each such installment to be a sum equal
to one-twelfth (1112th) of such revised estimated Operating Costs, in advance on the first day of each calendar
month thereafter until the next succeeding revision in such estimate.
(d) Following the end of each Accounting Period, Landlord shall furnish to Tenant a written statement, in
reasonable detail covering the Accounting Period Just expired showing the total Operating Costs for such
Accounting Period, the amount of Tenant's 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 during 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 prime facie evidence of Operating Costs.
(e) If Tenant's share of Operating Costs exceeds Tenant's payments with respect to any Accounting Period,
Tenant shall pay to Landlord the deficiency within thirty (30) days after the date of the furnishing of the statement
from Landlord; if Tenant's payments exceed Tenant's share of the Opera~ing Cpsts 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 overpayment is for the last Accounting Period, 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 all
of its obligations under this Lease 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 overpaymenL
(f) If the Original Term commences or terminates (other than by reason of Tenant's default) during an
Accounting Period, Tenant's obligation for Tenant's proportionate share of Operating Costs for such Accounting
Period shall be equitably prorated.
SECTION 7.4 Proportionate Insurance
(a) For each Accounting Period or portion thereof in the Original Term, Tenant shall pay to Landlord, as
Additional Rent, as Tenant's share of the cost of Laodlord's policy or policies of all risk property insurance insuring
the Shopping Center (in addition to the costs relating to the Common Areas as set forth in Section 7.2) and
Landlord shall bill Tenant for same in the same manner as the Operating Costs as more particularly 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 shall be visible from the extedor thereof or within three
(3), feet of any such glass (other than neatly lettered signs of reasonable size placed on the floor of the display
window identi~ing articles offered for sale and the price thereof) any sign, awning, canopy, decoration, lettering,
advertising matter or any other thing without in each instance first obtaining Landlord's written approval thereof;,
and Tenant further agrees to design and to maintain such sign, decoration, lettering, advertising matter or other
Create Date: April 21, 1999 2:45 PM 14 Print Date: Apd123, 1999 9:26 AM
::ODM.~,\PCDOCS\WCONSHI\' "H3~2 ' '
thing as may be approved in good condition and repair at all times in compliance with the requirements of the
"Sign Regulations" attached hereto, made part hereof and marked Exhibit 'B'.
(b) · Tenant shall not paint or decorate any part of the exterior of the Premises, orany part of the Premises
which shall be visible from the exterior thereof, without first obtaining Landlord's written approva of such painting
or decoration.
(c) Tenant shall install and maintain at all times, subject to the other provisions of this Section, displays of
seasonable memhandisa 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, adve~sing matter, signs,
merchandise 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) All 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 remain the property
of Tenant and shall be removed by Tenant at the expiration or eadier termination of the Term provided that:. (i)
Tenant shall not at such time be in default under this Lease and (ii) Tenant shall promptly restore the damage
done to the Premises by the installation and/or ramoval thereof. Should Tenant fail to so remove Tenant's trade
fixtures and/or 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 ~ade 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 for such trade fixtures). In the event Landlord
gives Tenant such notice to remove any or all of such trade fixtures, 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 oi' the
Premises and/or the roof of the building of which the Premises shall form a part and/or the exterior of the Premises
(including but not limited fo the storefront) 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 alteration (or series of such related alterations) doe~
not involve a cost in excess of Ten Thousand Dollars ($10,000.00), and provided further that any such alterations
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 interior or exterior of
the Premises (including, but not limited to, the storefront 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 referred to in Section 4.2 hereof or to the extent permitted by the 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 Lar~dlord's written consent. Together with each
request for such consent, Tenant shall present to Landlord detailed plans and specifications for such proposed
alterations, improvements, additions 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 expense 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 periodic painting and making all nonstructural ordinary
and extraordinary, foreseen and unforeseen repairs and replacements to the Premises and its component
systems. The foregoing sentence shall obligate Tenant to repair, maintain and replace, without limitation, all
Create Date: April 21, 1999 2:45 PM 15 Print Date: Apd123, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I '13~2
entrances to the Premises, the storefront, the glass in all doors and windows of the Premises, all interior portions
of the Premises, all trade fixtures, fixtures, signs and ail walls thereof (ex~:ept t6 ~he extent set forth in Section
9.2(a)), as well as plumbing, electrical, sprinkler, heating, ventilation and air-conditioning systems, escalators and
elevators, 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 line, and shall repair, maintain and replace all other apparatus or equipment
which were installed by Tenant outside the Premises, Tenant shall not overload the electrical wiring serving the
Premises or within the Premises, and will install at its own expense but only after obtaining Landlord's written
approval, any additional electrical wiring which may be required in connection with the Premises. If Landlord,
Agent or affiliates thereof, elect to provide heating, ventilating and 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 services performed by others; if Landlord elects not to
perform such services, the Tenant shall contract for such servioes with a qualified service contractor.
(b) Tenant will repair promptly at its own expense any damage (whether structural or nonstructural) to the
Premises 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 property, regardless of fault or by whom such
damage was caused, unless and then to the extent caused by the negligence of Landlord or its servants or
employees.
SECTION 9.2 Structural Repairs by Landlord.
(a) Except as otherwise provided by 9.1(b), sb"uctural 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 floor level, shifting of floor slab, or deviation in finished floor height resulting from the insertion or
construction of an expansion Joint or atdp In the floor slab shall not be deemed a structural defect requiring repair
by Landlord, but rather, a normal construction practice which shall be Tenant's responsibility to appropriately plan
for in its const~ction and useof 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 Landlord's prior consent, Tenant performs any alterations, additions, improvements, changes,
afflxations of chattels or other work which affects the structural portions of the Premises and/or the roof of the
building of which the Premises are a part and/or that portion of the exterior of the Shopping Center which Landlord
is obligated to repair pursuant to Section 9.2(a) or which affects the structural integrity of the building of which the
Premises form a part, such action by Tenant shall release and discharge Landlord as of the commencement of
such alteration, addition, improvement, affixafion or other work of and from such repair obligation and therea~far
Tenant agrees to be solely responsible for the maintenance, repair and replacement of any or all such structural
portions, roof, exterior and building which have been affected as aforesaid; provided, in the event Tenant shall
defaul~ in the performance of such responsibilities to Landlord's satisfaction (or at Landlord's option regardless of
Tenant's performance) Landlord, in addition to Landlord's other remedies under this Lease, at law or in equity,
may (but shall not be obligated to) cure such default at Tenant's cost without any liability of Landlord, its agents,
servants, employees, contractors or subcontractors for damage to Tenant's memhandise, fixtures or other
property or to Tenant's business by reason of Tenant's actions hereunder, or by reason of Landlord's actions to
remedy the damage caused by Tenant hereunder, unless 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 Tenant performs any
such alterations, additions, improvements, changes, affixations or other work in a manner inconsistent with
Landicrd's prior consent thereto, 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 Term, Tenant shall peaceably surrender the Premises, broom
clean, free of debris, in good order, condition and state of repair as required hereby, ordinary wear and tear
excepted to the extent the Premises is not required to be repaired and/or maintained by Tenant and damage by
casualty excepted to the extent that the same is required to be covered by Landlord's all risk property insurance
and Tenant shall 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 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I, ,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, heating, lighting, electrical and plumbing equipment and flxtures~
and all wiring and other apperatus related to air-conditioning, 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 fixtures are affixed to the Premises as to be.removable without destroying the
chattel~ themselves or the property to which they are affixed and whether or not such equipment and fixtures are
real property or personalty) shall remain upon the Premises at the expiration or earlier termination of the Term and
shall become the property of Landlord immediately upon the installation thereof and shall remain the proper~J of
the Landlord without any obligation of Landlord to pay compensation therefor.
ARTICLE 10
INDEMNIFICATION; SUBROGATION
SECTION 10.1 Indemnificaflon and Waiver of Claim
(a) Tenant will defend and will indemnity Landlord and Agent and save them harmless from and against any
and all claims, actions, damages, liability and expense (including, but not limited to, reasonable attorneys' fees and
disburaements) connected with the loss of life, personal inju~/or damage to property or business arising from,
related to, or in connection with the performance of Tenant's Work, the occupancy of the Premises or occasioned
wholly or in pert by act or omission of Tenant. its contractors, subcontractors, subtenants, licensees or
concessionaires, or its or their respective agents, servants or employees on any part of Landlord's property or the
Shopping Center or by reason of Tenant's breach of any of the provisions of this Lease. Tenant shall not,
however, be liable for damages or injur7 occasioned by the negligence or willful misconduct of Landlord, Agent or
their agents, employees, contractors or servants, unless such damage or injur~ 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 negligence or willful misconduct
of Landlord, Agent, or their respective agents, servants, and employees, neither Landlord, Agent nor their
respective agents, servants, employees or contractors shall be liable for, 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 tire, accident,
occurrence or condition in or upon the Shopping Center or any part thereof (Including, without limitation, the
Premises and the building of which the same is a part), including, but not limited to, such claims for loss of Iii'e,
personal injury or damage resulting from (1) any defect in or failure of plumbing, heating or air-conditioning
equipment, electrical wiring or installation thereof, water pipes, stairs, railings or walks; (2) any equipment or
appurtenances being out of repair, (3) the bursting, leaking or running of any tank, washstand, water closet, waste
pipe, drain or any other pipe or tank in, upon or about the Shopping Center;, (4) the backing up of any sewer pipe;
(5) the escape of steam or hot water;, (6) water, snow or ice being upon or coming through the roof or any other
place upon or near the Premises or the building of which the same is a part or otherwise; (7) the falling of any
fixture, plaster, ceiling tile or stucco; (8) broken glass; (9) any act or omission 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 and without exception and to supersede any specific repair obligation imposed upon Landlord
hereuRder.
(c) Landlord will defend and indemnify Tenant and save Tenant harmless from and against any and all claims,
actions, damages, liability and expense (including, 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 omissions 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 servants.
SECTION 10.2 Subrogation
(a) In the event the Premises or its contents are damaged or destroyed by fire or other insured casualty, (i)
Landlord, to the extent of the coverage of Lendlord'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 willful misconduct of Tenant, its agents, servants 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 destructfon, even if said fire or other
casualty shal~ have been caused in whole or in part, by the negligence or willful misconduct of Landlord, its agents,
servants or employees.
Create Date: April 21, 1999 2:45 PM 17 Pdnt Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\I~ 13~
ARTICLE 11
INSURANCE
SECTION 11,1 Insurance *
(al Tenant will keep*in force in companies licensed to do.business in the state where the Shopping Center is
located' at Tenant's expense at ali times during the Term and during such other times as Tenant occupies the
Premises or any paff thereof:.
1. Commercial general liability insurance with respect to the Premis*es, the ~idewalks, if any, abutting and'
adjoining the Premises, and the business operated by Tenant and any subtenants, licensees and concessionaires
of Tenant in or fi*om the Premises with a minimum combined single limit of Two Million Oollars ($2,000,000.00),
including insurance against assumed or contractual Ifabnity 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 liability 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 (al all of Tenant's stock in trade, trade fixtures, furniture, fumishings,
such equipment as is not affixed to the Premises, and (b) Tenant's interest in all of the improvements and
betterments installed in the Premises by Tenant, in each case to the 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, ara 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 certilicates 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 Section 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
(al All policies of insurance required to be cmried by Tenant shall provide that the policy shall not be subject
to cancellation, termination or change except after fftirty (30) days prior written notice to Landlord and the policy
referred to in Section 11.1(a)(1) shall name Landlord and any other entities as may be from time to time reqbested
by Landlord including, but not limited to, Laedlord's mortgagee(s), as an additional assured as their respective
interests may appear. In addition, such policies of insurance shall contain a provision substantially as follows: "It
is 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' liability, but otherwise shall not operate to limit or void the
coverage of any one named insured as respects claims against the same named insured by any other named
insured or the employees of such other named insured.'
SECTION '1t.3 Effect on Insurance
(al Tenant will not do, omit to do, or suffer to be done or keep or suffer to be kept anything in, upon or about
the Premises which will violate the provisions of Laedtord'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 will prevent Landlord from procuring such policies in companies
acceptable to Landlord~ provided Tenant is first given adequate notice of the requirements of such policies. If
anything done, omitted to be done or suffered to be done by Tenant, or kept or suffered by Tenant to be kept in,
upon or about the Premises shall cause, by itself or in combination with other circumstances existing at the
Shopping Center, the premium rate of all risk property 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 underwrffers with regard to the use of the Premises for the purposes permitted under'
this Lease or to such other property 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 reasonably determined by Landlord, as
Create Date: April 21, 1999 2:45 PM 18 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\1 13',2
Additional Rent 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 Premises during a period failing
within the Term until such increase ia 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 fails to provide and keep in force any or all of the insurance policies
set forth in Section 11.1 hereof, then in such event Tenant shall indemnif7 and hold Landlord harmless against any
loss which would have been cover~:l by such insurance.
ARTICLE 12
UTILITIES
SECTION 12,1 Utilities
(a) Tenant shall be solely responsi~)le 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. During the Term, Tenant agrees to purchase from 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 from
Landlord and pay for the heating end/or cooling medium supplied by Landlord to the Premises, to be used by
Tenant for heating and/or air-conditioning the Premises, as Additional 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 purchase 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 rent
charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which
now or hereafter is assessed, imposed or may become a lien upon the Premises, or the realty of which they are a
part, pursuant to law, order or regulation made or issued in connection with the use, consumption, maintenance or
supply of water, or the water or sewerage connection or system.
(d) 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 facilities
therefor with another source for the utility service so discontinued. In addition, Landlord reserves the right to cut
off and discontinue, upon thirty (30) days' notica 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 amount (whether as rant or otherwise) due under this Lease. Landlord shall not be liable for any such
discon{tnuance 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 efforts to ~:estore 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 Pdnt Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1~,I ;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's 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 the 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 Article 12 are collectively herein referred to as the 'HVAC
Charge'.
ARTICLE 13
ESTOPPEL CERTIFICATE; SUBORDINATION; A'I-rORNMENT
SECTION t3.1 Execution of Estoppel Certificate , ,
(a) At any time, and from time to time, upon the written request of Landlord or any mortgagee. Tenant, within
twenty (20) days of the date of such written request, agrees to execute and deliver to Landlord and/or such
mortgagee, without charge and in a form satisfactory to Landlord and/or such mortgagee, a written statement: (i)
ratifying this Lease; (ii) confirming the commencement and expiration dates of the Term; (iii) certifying 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 writings as shall be stated; (iv) certifying that all conditions and
agreements under this Lease to be satisfied or partormed by Landlord have been satisfied and performed 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 claimed 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 deposited 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 failure of Tenant to execute, acknowledge 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 share of Operating Costs,
HVAC Charge, Tenant's share of Landlord's all risk property insurance, Percentage Rent and Additional Rent
have been du,l~ and fully paid and not beyond the respective due dates immediately preceding the date of the'
request for such statement and shall constitute as 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 written request.
SECTION 13.3 Subordination and Attornment
(a) Tenant agrees: (i) that, except as hereinafter provided, this Lease is, and all of Tenant's rights hereunder
are and shall always be, subject and subordinate to any mortgage, ground Pease pursuant to which Landlord has
derived its interest in the Shopping Center, installment sales agreement or other instrument of encumbrance
heretofore or hereafter placed upon any or all of Landlord's lessors or Landlord's estate in the Shopping ~enter
and all renewals, replacements, consolidations, amendments and extensions thereof (collectively called
"Mortgage") and to all 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 holder of any such Mortgage
("Mortgagee') or if the grantee of a deed in lieu of foreclosure, or if the pumhaser 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, grantae 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 requirad by any such
Mortgagee, grantee or purchaser.
(b) Notwithstanding anything to the contra~ set forth above, any Mortgagee may at any time subordinate its
Mortgage to this Lease, without Tenant's consent, by exacution of a written document subordinating such
Mortgage to this Lease to the extent set forth therein, and thereupon this Lease shall be deemed prior to such
Create Date: April 21, 1999 2:45 PM 20 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1~ 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 fo 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 pumhaser desire confirmation of either such subordination
or such allotment, as the case may be, Tenant upon written request, and from time to time, will execute and
deliver without charge and in form satisfactory fo Landlord, the Mortgagee, grantee or purchaser all instruments
and/or documents in recordable form that may be requested to acknowledge such subordination and/or agreement
to attom, which instruments and/er documents shall provide that any such Mortgagee, grantee or purchaser shall
recoghize 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 place separate 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.t Assignment and Subletting
(a) Tenant shall not voluntarily, involuntarily, er 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 pen'nit the Premises or any part thereof to be used
or occupied by others, without first obtaining in each and every instance the prior written consent of Landlord,
which consent Landlord shall be entitled to withhold at Landlord's sole discretion. Any consent by Landlord to an
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 construed as a consent by Landlord to an assignment.
(b) If this Lease or any interest herein be assigned or if the Premises or any part thereof be sublet or used or
occupied by anyone other than 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, Percentage Rent, the HVAC Charge, Tax Rent, Tenant's
.proportionate share of Landlord's Operating Costs, Tenant's proportionate share of Landlord's alt risk property
msurance and Additional Rent) from the assignee, sublessee, user or occupant and apply the net amount
collected to the rents herein reserved, and furthermore in any such event Tenant shall pay to Landlord monthly, as
Additional Rent, the excess of the consideration received or to be received during such month for such assignment
sublease, or occupancy (whether or not denoted as rent) over the rental reserved for such month in this Lease
applicable to such portion of the Premises so assigned, sublet or occupied. No such assignment, subletting, use,
occupancy or collection shall be deemed a waiver of the cover~ant herein against assignment, subletting or use or
occupancy by others, or the acceptance of the assignee, subtenant, user or occupant as Tenant hereunder, or
constitu.ta 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 herein be assigned or if the whole or any part of the Premises be
sublet or used or occupied by others, after having obtained Landlord's prior written consent thereto, Tenant shall
nevertheless remain tully liable for the full performance of all obligatloos 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 set forth above, Landlord shal~ 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 recapture 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 date of Landlord's notice'and a~ fully 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~
amended shall continue thereafter in full force and effect. The failure of Landlord to exemise 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.
(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 execution of such document.
(e) If at any. time during the Term an~,,part or all of the corporate shares of Tenant, or of a parent corporation
of which the Tenant is a direct or indirect subsidiary, shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other disposition so as to result in a change in the present effective voting control
of Tenant or of such parent corporation by the person or persons owning or controlling a majority of the shares of
Tenant or of such parent corporation on the date of this Lease, Tenant shall promptly notify Landlord in writing of
such change, and such change in voting control shall constitute an assignment of this Lease for all purposes of
this Section; provided, however, that this provision shall not apply in the event that over. fifty pement (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 number of unrelated shareholders in a public distribution of securities.
(fi 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 interest, such cessation of
ownership shall constitute an assignment of this Lease for al'l purposes of this Section.
(g) Upon the occurrence of any such events as described in Section 14.1 hereof, whether voluntary,
involuntary, by operation of law, or otherwise, without the pdor written consent of Landlord (whether or not Tenant
shall have given notice thereof to Landlord), Landlord may treat any such occurrence as an Event of Default.
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 1st of each year during the Term by six percent (6%) of the previous year's
payment. The Marketing Fund shall ha used to pay all costs and expenses associated with the formation and
carrying out of an ongoing program for the promotion of the Shopping Center, which program may include, without
limitation, special events, shows, displays, signs, seasonal events, and other activities designed to attract
customers to the Shopping Center. In connectfon with the operation of the Marketing Fund, Landlord shall have
the right to contract for or otherwise 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 sole authority to employ and discharge the same. The Marketing Fund
may be used to defray the cost of administration of such marketing activities including the salary or payments and
reimbursements due such organization and personnel, rent, travel expenses, and other business expenses.
SECTION 15.2 Media Fund
(a) ' In addition to the Marketing Fund set forlh 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 costa 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 9:26 AM
::ODMA\PCDOCS\WCONSH 1\, .,81312
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 and administer both as a
single entity.
SECTION t5.3 Merchants'Association
(a) In the event there presently exists 6ither a merchant's association, promotion fund, or other similar entity
the purpose of which is to advertise the Shopping Center, Landlord agrees that unless Landlord shall hereafter
direct otherwise, the Tenant shall not be obligated to contribute any sums thereto. 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 contal[led
in any bylaw or other similar 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 andlor other entity then in effect and to pay over to the Marketing Fund and
Media Fund in such pementages 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 to b~ 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 prorated 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) If the Premises shall be 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 rent shall not
be abated. If by reason of such occurrence, the Premises shall be rendered untenantable in whole or in part,
subject to the limitations hereafter set fo~h, Landlord. 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
untenantable until the completion of Landlord's repairs thereto.
(b) If the Premises shall be damaged or destroyed by a fire or casualty not covered by Landlord'S policies of
all risk property insurance and Landlord, at its option, decides not to repair and restore the Premises, Landlord
shall have the right, to be exercised by notice in writing delivered to Tenant within sixty (60) days from and after
the occurrence of such damage or destruction, to cancel and terminate this Lease. Either party shall have the
right, to be exercised by notice in writing, delivered to the other within thirty (30) days from and after any
occurrence which renders the Premises wholly untenantable to cancel 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 party, and in such event 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 and remain unpaid), the rent to be adjusted as of such date; provided,
however, that if Landlord shell commence repairs or reconstruction of the destroyed Premises during the period
prior to the cancellation date. the tenancy shall remain in effect and said notice of cancellation shall be considered
void.
(c) In no event shall Landlord be obligated to expend for any repairs or rec(~nstruction pursuant to this Section
16.1 an amount in excess of the msuraoce oroceeds 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 Landlord's rnortgagea. Nothing in this Section shall be construed to permit the abatement in
whole or in part of the Percentage Rent, and the calculation of Percentage Rent shall be governed solely by
Section 2.1 (e) hereof. The provisions hereof are subject to the terms of Section 16.2 hereof.
Create Date: Aoril 21, 1999 2:45 PM 23 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1\'~ $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 up(sn 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 and therein diligently 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 edJustment 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 will give notice to Landlord of any accident or damage, whether such damage is
caused by insured or uninsured'casualty, 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 i~ this Section
16.1(f), Landlord's liability shall be limited to performing the repairs required by Landlord hereunder and in addition
to all other rights and remedies under this Lease, at law or in equity, Landlord shalll at its option, hold Tenant liable
for and Tenant shall 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 pement (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 right, to be exercised by notice in writing delivered to Tenant within Sixty
(60) days after said occurrence, to cancel and terminate this Lease. Upon the giving of such notice, the Term
shall expire by lapse of time upon the fifteenth (15th) day after such notice is given and Tenant shall vacate the
Premises and surrender the same to Landlord,
ARTICLE 17
EMINENT DOMAIN
SECTION 17.1 Total Condemnation of Premises
(a) If the whole of the Premises shall be taken by any public or quasi-public authority under the power of
eminent domain, condemnation or expropriation or in the event of a conveyance in lieu thereof, then this Lease
shall terminate as of the date on which possession of the Premises is required to be surrendered to the
condemning authority, and Tenant shall have no claim against Landlord or the condemning authority for the value
of the unexpired Term.
SECTION 17.2 Partial Condemnation of Premises
(a) If any part of the Premises shall be se taken or conveyed and if such partial taking or conveyance shall
render the Premises unsuitable for the business of the Tenant, then the Term shall terminate as of the date on
which possession of the Premises is rsquimd fo be surrendered to the condemning authority and Tenant shall
have no claim against Landlord or the condemning authority 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 contir~ue in full force and effect except that the Fixed Minimum Rent
and the Percentage Rent Gross Sales Base shall each be reduced in the same proportion that the floor area of the
Premises so taken or conveyed bears to such floor area immediately prior to such taking or conveyance such
reduction commencing as of the date Tenant is required to surrender possession of such portion and with respect
to the days during which the Pi~emises are not open for business the calculation of Percentage Rent shall be
adjusted in accordance with Section 2.1(d) hereof. Landlord shall promptiy restore the Premises, to the extent of
condemnation proceeds avaitable for such purpose, es nearly as practicable to a condition comparable to their
condition at the time of such condemnation !ess the portion lost in the taking or conveyance and Tenant shall
promptly make all necessary repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings
and shall promptly reenter the Premises and commence doing business in accordance with the provisions of this
Lease. For purposes of determining the amount of funds available for restoration of the Premises from the
condemnation award said amount will be deemed to be that part of the award which remains after payment of
Landlord'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) more than one-third (1/3) of the floor area of the buildings of which the Premises are a part or more
than one-third (1/3) of the leasable floor area of the Shopping Center or more than one-third (1/3) of the Common
Areas shall be so taken or conveyed or (ii) if any part of the .parking area in the Shopping Center is so taken or
conveyed and as a result of such partial taking or conveyance the size, layout or location of the remaining parking
facilities will violate the requirements of the applicable zoning or similar law (or any permitted variance or exception
thereto), then in any or all such events notwithstanding the fact that the Premises are not so taken or conveyed,
Landlord shall have the right and power, at its option to be exercised by written notice to Tenant, to terminate this
Lease effective either the date title vests in the condemning authority or the date Landlord is required to deliver
possession of the part so taken or conveyed, provided, 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 any event, Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired Term.
SECTION 17.4 Landlord's Damages
(a) In the event of any condemnation or taking as hereinbefore pro~ided, 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 Landlord are to receive the full amount of such award as their respective interests may appear.
Tenant hereby expressly waives any dght or claim to any part thereof and assigns to Landlord any such right or
claim to which Tenant might become entit~ed.
SECTION 17,5 Tenant's Damages
(a) Although all 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 es 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 mortgegee's award to claim and recover from the condemning authority, but not
from Landlord or such mortgagee, such compensation as may be separately awarded or recoverable by a tenant
under the applicable eminent domain code in effect where the Shopping Center is located in Tenant's own right for
or on account of, and limited solely to, any cost to which Tenant might be put in removing Tenant's merchandise,
furniture, fixtures and equipment.
ARTICLE 18
BANKRUPTCY
SECTION 18,1 Bankruptcy
(a) If there shall be flied against Tenant or any guarantor or surety of this Lease or any o1' Tenant's obligations
under this lease, in any court, pursuant to any statute either of the United States or of any state, a petition in
bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or any portion of
Tenant's or such guarantor's or surety'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 file any such
petition or make an assignment for the benefit of creditors or petition for or enter into such an arrangement, then
this Lease, at the option of Landlord, may be cancelled or terminated, in which event neither Tenant nor any
person claiming through or under Tenant by virtue of any statute or of an order of any court shall be entitled to
acquire or remain in possession of the Premises, as the case may be, and Landlord shall have no further liability
hereunder to Tenant or such person, and Tenant er any such person shall forthwith quit and surrender the
Premises. If this Lease shall be so cancelled or' terminated, Landlord, in addition to the other ;ights and remedies
of 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
Create Date: April 21, 1999 2;45 PM 25 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCO NSH 1~ ,~813~
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 pald or delivered to Landlord.
(c) Any person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code
shall be deemed, witho.ut further act or deed, to have assumed all of the obligations arising under this Lease on or
after the date of such assignment. 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.
(d) In addition to Landlord's right to approve or disapprove the proposed sublease or assignment, as set forth
above, Landlord shall have the right, to be exercised by giv~g 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 or assignment. If notice of such recapture is given, it shall serve 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 serve to cancel and terminate the Lease, in either case as of the thirtieth (30th)
day after the date of Landicrd's notice and as fully and completely 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, the Lease so amended shall continue thereafter in full
force and effect. The failure of Landlord 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 REMEDIES
SECTION 19.1 Events of Default
(a) The following shall constitute an Event of Default;
1. If Tenant defaults in the payment of any sum of money (whether Fixed Minimum Rent, Pementage 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, Media Charge, Additional Rent or otherwise) when due.
If such default shall not be cured within fifteen (15) days after the date of written notice from Landlord to Tenant of
said default, Landlord may pursue the remedies set forth in this Article.
2. Except as to acts, defaults, omissions and/or occurrences specified in subsections 1, 3 and 4 of this
Section 19. l(a), or those characterized, defined, denoted, or identified in this Lease as a Deliberate Event of
Default, if Tenant defaults in fulfilling any of the other covenants of this Lease on Tenant's part to be performed
hereunder and such default shall not be cured within the period within which performance is required to be made
by specific provision of this Lease, or, if no such period is so provided, within twenty (20) days after the date
written notice from Landlord to Tenant specifying the nature of said default, or, if the default so specified shall be of
such a nature that the same cannot be reasonably cured or remedied within said twenty (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 dilige0tly 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~er the Issuance thereofi
4. Any event described in Section 18.1 or Section 19.2.
5. The occurrence of any other event described as constituting an Event of Default elsewhere in this Lease.
SECTION '19.2 Deliberate Events of Default
(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 wriffen hotice otherwise required from Landlord, and any
such failure shall be repeated two (2) times in any period of twelve (12) months, or (ii) fail 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 faiiures shall have been timely cured.
2. If Tenant abandons the Premises whether the Premises are vacant or not, or if Tenant permits the
Premises to become vacant.
Create Date: April 21, 1999 2:45 PM 26 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\lr 13~
(b) In the event of a Deliberate Event of Default, Landlord may, after giving Tenant one (1) additional five (5)
day notice, exercise any or all of.its rights under this Lease in addition 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, or 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 in either event, Tenant shall have no right to avoid the cancellation or termlnatlon
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 as fully and completely as if such date were the day herein definitely fixed for the end and
expiration of this Lease and such Term, and Tenant shall then quit and surrender the Premises to Landlord, but
notwithstanding any statute, rule 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 ~notice provided for above in Section 19.3 hereof shall
have been given and this Lease shall be terminated; or E the Premises become vacant or deserted; then, in all or
any of such events, in addition to and not in lieu of ali 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 and 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 to prosecution 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 othen~ise, in addition to, and not in lieu of, ail 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 o~
such reentry, dispossession and/or expiration;
2. Landlord may relet the Premises 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 concessions or free rent; and ,
3. Tenant or the legal representative of Tenant shall also pay Landlord, at Landlord's option and whether or
not Landlord has terminated or cancelled this Lease, as liquidated damages for the failure of Tenant to observe
and perform said Tenant's covenants herein contained, for each month of the pedod which would otherwise have
constituted the balance of the Term, the excess, if any, of the sum of one monthly installment of Fixed Minimum
Rent, one-twelfth (1t12th) of the annual average Pementage Rent payable hereunder for the three (3) Lease
Years immediately preceding (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 net 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 part or parts thereof shall not release or affect Tenant's liability
for damages provided Landlord uses reasonable efforts to relet the Premises. In computing such liquidated
damages there shall be added to the said deficiency all expenses Landlord may incur in connection with reletting,
such as court costs, reasonable attorneys' fees and disbursements, brokerage, and management fees and
commissions, cost of putting and keeping the Premises in good order and costs of preparing the Premises for
reletti~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 forany 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 dghts of Landlord to elect to collect liquidated
Create Date: Apd121, 1999 2;45 PM 27 Print Date: Apd123, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\ ._ ~813~
damages calculated by the formula set forth in Section 19.5(b) hereof. Landlord, at Landlord's option, may make
such alterations, repairs, replacements and/or decorations in the Premises as Landlord in Landlord's sole
judgment considers advisable and necessary for the purpose of reletting the Premises; and the making of such
alterations and/or decorations shall not operate or be construed to release Tenant from liability hereund.er as
aforesaid. Landlord shall in no event be liable in any way whatsoevei~ for failure to relet the Premises provided
Landlord uses reasonable efforts to relet the Premises or, in the event that the Premises are relet, for failure to
collect the rent thereof under such reletting.
(b) In any of the cimumstances mentioned in the foregoing Section 19.5(a) in which Landlord shall have the
right to hold Tenant liable as therein provided, Landlord shall have the election, in place and instead of holding
Tenant so liable, forthwith to recover against Tenant, as liquidated damages for loss of the bargain and not as a
penalty, a sum equal to the monthly amount of Fixed Minimum Rent and all 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), all discounted to present worth at the pdme rate, together with costs and
reasonable affomeys' fees.
(c) In the event of a breach or threatened breach by Tenant of any of the covenants or previsions hereof,
Landlord shall have the right of injunction and the dght 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 shall 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 reason of the violation by Tenant of any of the covenants and conditions of this Lease or
otherwise. The words 'reenter' and "reentry' 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 time 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 following the end of the relevant
Accounting Period, Tax Period or other relevant time period provided for herein and to bill Tenant for any balances
due hereunder.
SECTION 19.6 Performance of Tenant's Covenants
(a) Tenant covenants and agrees that it will perform all agreements and observe all covenants herein
expressed on its pert to be performed and observed, and that it will 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, and not in lieu of or in limitation of any other remedy which Landlord may have
pursuant to this Lease, at law or in equity, Landlord may, but shall not be obligated to, enter upon the Premises
and do the things specified in said notice. Landlord shall have no liability to Tenant for any loss or damage
resulting in any way from such action and Tenant agrees to pay upon demand, as Additional Rent, any sums or
costs incurred by Landlord in taking such action, plus administrative costs of Landlord in a sum equal to twenty
percent (20%) of such sums end/or costs. Notwithstanding the foregoing, Landlord's performance of any or all of
Tenant's covenants shall not release Tenant 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
ATTORNEY OF ANY COURT OF RECORD W1THIN THE UNITED STATES OF AMERICA, OR ELSEWHERE,
TO APPEAR FOR TENANT, W1TH 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 E~E ENTITLED AS DAMAGES UNDER THE PROVISIONS OF THIS
LEASE, INCLUDING, BUT NOT LIMITED TO, ARTICLE 19, AND FOR INTEREST AND COSTS, AND A
Create Date: Apd121, 1999 2:45 PM 28 Print Date: April 23, 1999 9:26 AM
;;ODMA~PCDOC ~;~?~-~ON SH ~ ¥~-~813'~
REASONABLE A3"I'O RN~Y'$ COIVINII~ION NOT TO ,~I(CEEO FIFTEEN PERCENT (1~%) OF TIlE TOTAL
AN~OUNT OF SUCH RENTAL AND/OR SAiD OTI'~R ~UMS FOR COLLECTION. FOR WHICH THIS LEA~E, OR
A TRUE AND CORRECT COPY ,THER. EGF, SHALL SE SUFFICIENT WARRANT, AND SUOH POWERS MAY
SE EXERCISED AS WELL AJ~'ER THE TERMINATION OR EX~ .RATION OF THE TERM OF THIS LF~.S~, THE
WARRANT OF ATTDRNBY HEREIN GRAN'I'~ SHALl. NOT BE EXH.NJSTED BY ONE OR MORE EXEROISES
THEREOF, BUT $1JCCESS~'V~ ACTION~ MAY DE COMMENCED AND $ UCCEb-'~IVE JuDGMeNTS MAY BE
CONFESSED OR OTHERWISE ENTERED AGA~IST TENANT FROM TIM~- TO TIME ~ OFTEN A~ ^NY OF
THE RENT A~",~'tO R OTHER AMOUNTS AND SUMS ,~'{AL L FN,.L OR SE D~tE OR, BE IN ARREARS, AND
THiS WARRANT OF A ,' ,' ,' ,' ,' ,' ,' ,' ,"~OI~IEY MAY 9E EXERCISED ,AFTER ~ TERMINA"i'~N O~ EXPIRATION OF THE
TERM AND/OR DURINg3 OR ~ ~ EXTENTIONS OF THE TERMS OR RENEWN-S OF THIS LEASS.
TENANT HERE~iY ACKNC:WLEDGES THAT ~ AGReEiNG TO TH~ FOREGOING CONFES.'~ON OF
JUDGMENT AN D ¥,,'~R.a, NT OF ATTORNEY, TENANT WAIVES THE RIGHT TO NOTICE AND A PRIOR
JCJDIC1AL PROCEEDING TO Dr; ~ e~,MtNE IT~ RIGHTS AND LIABILII'~ES, AND FURTHER
THAT L^NDLORD ,MA/', ON D,F. FA'i.}L T BY TENANT UN[IER THE LEASE, SUBJECT TO SUCH NOTICE
REQUIREMENTS, tF ANY, A~ ARE HE.tN EXPRESSLY PROV~'I3ED, OBTAIN A JUDGN,~NT AGAINST
TENANT FOR ALL SLIMS DUE HFREUNDER, AND LEVY EXECL~rlON ON ,e~ICH JUOGMENT.~.GAIN$'I' ANY
AND AIL PROPERT( OF T"SNANT WITHOUT A,NY OPPORTUNITY OF TENANT TO ~AISE ANY DEFENSE,
SETOFF, COIjNT~RCLAtM OR OT'HE~ CLNM THAT TENANT MAY HAVE, AND THAT TENANT KNOWINGLY,
VOLUNTARILY AND iNI'ELLIGENTLY GRANTS LANDLORD THE FOREGOING RIGHT TO CONFE$~
JUDGMENT AND WARRANT OF A'T3~RNEY AS AN EY..PLICIT AND t.IATE~IAI. P/~T OF THE
CONSIDERATION BARGA~NE..~ FO~', BETWEEN TE 'N,,~NT AND LANL'd. ORD, TENANT CERTIFIES THAT IT
HAS SEEN REPRESENT'~D BY (OR HAS HAD THE OPPORTUNITY TO SE REPRESENTED) AT THE
SIGNING OF THiS UEASE AND IN THE GRANTING OF TH~ CONFESSION OF JI.,~GMi~NT AND WARRANT
OF/~crORNEY BY tN~F~NSENT LEGAL COUNSEL, SELECTED OF ~S OW~ FREE WILL, AND THAT IT
HAS HAD THE OPPOt~TUNITY TO D1SCU~ THE CONFESSION OF JUDGMENT AND WARRANT OF
AT'i'O~.NEY W1TH COUNSEL. T'~NANT FURTHL~"R CERTIFIES THAT ~ HA~J READ AND UNDERSTANDS
THE MEANING AND EFFECT OF THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF
ATTORNEY. TEN.~,NT FURTHER ACt~,~W~J3~E$ THAT THIS LEASE IS A COMMERCl.~J- TRANSACTION,
AND THAT THE RELATIONSHIP SE'~J'~EN LANDLORD AND TENANT CREATED HEREUNDER IS
COMMERCIAL IN NATURE.
(b) IN THE E-%"ENT OF THEBREACH OF ANY PROVISION OF THE LFm~''sS, AN EVENT OF; DEFAL~LT O~
A DELISER.ATE EVEI~,IT OF DEFAULT AS DEFINED HSRE~N, EITHER DURING THE TERM OR ANY
RENEW/q. OR EX'TENSION THEP. EOF, ANE)~R WHeN AND AS SOON ~ THE T'EP~v', SHALL HAVE
cJ. PIRED ,OR BEEN TERMINATED, TENANT HER~i~Y IRREVOCABLY AUTHORIZE~ AND EMPOV,,~RS ANY
PROTHONOTARY OR AI'T'ORNEY OF ANY COURT OF RECORD AS &.'CI'ORNEY FOR TENANT AND ANY
PERSONS C!..AJMING THROUGH OR UNDER TENANT. W~H OR WIT~O{JT COMeL~,JNT FILED, TO
CONFESS JUOGMFNT IN EJECTMENT AGNNST TE. NANT AND ALL PERSONS CLNMING THRDL~GF OR
UNDER TENANT, 114 FAVOR OF LANDLORD. FOR TH"~ RECOVERY ~ LANDLORD OF' POSSESSION OF
'[tie PREMISES, FOR '~,'HiCH THIS LF.A~E, OR A TRUE AND CORRECT COPY THEREOF, SHALL
SUFFiCiENT WARRANT, WHEREUPON 1F LANDLORD SO DESIRES, A W~IT OF EXECUTION OR OF
POSSESGIDN M/~,Y ISSUE FOR~, WITHOUT ANY PRIOR WRiT OR PROCEEDINGS WHATSOEV15R,
AND PROV1DED THAT IF FOR ANY R~ON AI:~t:7.R SUCH ACT~Oi',I SHALL HAVE ~'EEN COMMENCEO
c, SAM~. SHALL 8E DETERMINED, CANCELLED OR BL~PENDEO AND POSSESEION OF THE PREMISES
REiN IN OR BE RESTORED TO TENANT OR ANY PERSON CLAIM(NO THROUGH OR UNDER T~NANT,
LANDLORD SHALL HAVE THE RIGHT UPON Af~.~Y SUSSEQUENT DEFAULT OR DEFAUL-f$, OR UPON ANY
SUSSEQUSNT TERk'~INA'i~ON OR EXPTR~TION OF THIS t. EASE. OR AN~ RENEWAL OR EXTENSION
HEREQI=, OR OF TENANT'S RIGHT OF POSSESS!ON AB NEREINESFORE ~ET FORTH, TO CONFESS
JUDGMENT IN EJECTMENT AS HEREJNSEFORE SET FORTH ONE OR MORE ADomoNAL TIMES TO
RECOVER POSSESSION OF THE PREMISES, TENANT HERE~Y ACKNOWLEDGES THAT BY AGREEING TO
THE FOREGOING CONFESSION OF JUDGMENT AND WARF~,NT OF ATTORNEY, TENANT WAIVES
RIGHT "R3 NOTICE AND A PRIOR JUDICIAL PROCEEDING TO DETERMINE rTE RIGHTS AND
AND FURTI~,ER ACK~OV'vl..EDGES THAT LANIDLORD MAY, ON DEFAULT EY TENANq UNDER THE LEA~E,
SUSJECT TO SUCH. NOTICE REQUIREMENTS, IF ANY, .~S ARE HEREIN EXPRESSLY PROVIDED. OBTAIN
A JUDGMENT AGAIt,'$T TENANT FOR POSSESSION OF THE PREMISES W/TNOUT ANY OPPORTUNITY OF
TENANT TO RAISe. AHY ~EFENSF._. SE'TOFF, COUNTERC~IM OR OTHER CLAIM T~T TENANT
HAVE, AND THAT TENANT KNO"~N SLY, VOLUNTARILY AND !NTELL!GENTLY G P, ANT$ LANDLORD THE
FORBODING RIGHT TO CONFESS JUDGMENT AND WARRANT O:F ATTORNEY AS AN EXPLICIT AN~D
MATER',AL PART OF THE CONS!DERATtON ~ARGA!NEC FOR BE'[?'~.EN TENANT ANDiLANDLORO.
TENANT CERTIFIES THAT IT HAS SEEN REPRESENTS[3 SY (OR HAS HAD THE OPPORTUNITY' TO BE
REPPES~-NTED) AT ';'HE 31GNtNG O~ TH!E L,EA~E AND IN THE G,~ANTING OF THIS CONFESSION OF
,-L'D~MENT AND W;*,F, RN,IT OF ~,TTORNEY BY iNDEPENDENT, LEGAL COUNSEL, SELECTED OF ITS OWN
Create Date: A~121, 1999 =45 PM 29 Prf"t Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSHI\, _.,813~ ~
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THE CONFESSION OF JUDGMENT
AND WARRANT OF A't-FORNEY 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 CREATEi)
HEREUNDER IS COMMERCIAL 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~- ~ HNG 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 NO'P,'VlTHSTANDING. TENANT HEREBY WAIVES
AND RELEASES TO LANDLORD, AND TO ANY AND ALL A'I-rORNEYS WHO MAY APPEAR FOR LANDLORD,
ALL PROCEDURAL ERROR'S 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 LIABILITY 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
(ay Tenant expressly waives:
1. . The benefit of all laws, now or hereafter in force, exempting any goods on the Premises, or elsewhere,
from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights 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 is to be made after removal of goods of the Tenant o~' 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 Premises 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 Premfses clandestinely and fraudulently, as defined above in this Lease.
3. The right to issue a writ of replevin for the recovery of any goods seized under a distress for rent or levy
upon an execution for rentl 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 clerk to enter a writ 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-Tenant 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 and terms of sale, including Landlord'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 as may be specified by
the Landlord and Tenant ACt of 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 receipt from Tenant of the sum set forth in the Indenture of Lease to be held as
security for the payment of any rent and all other sums of money payable b~,, Tenant under this Lease and for the
faithful performance of all covenants of Tenant hereunder, the amount of such security deposit, without interest,
shall be refunded to Tenant after termination of the Term, provided Tenant shall have made all such payments and
performed all such covenants. Upon any default by Tenant hereunder, ail or part of such secudty deposit may, at
Create Date: April 21, 1999 2:45 PM 30 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCO NSH 1~ 813~2
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 pumhaser 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, andTenant agrees to 10ok sblely to such pumhaser for the return of such security
deposit.
ARTICLE 21
MISCELLANEOUS
SECTION 2'1.1 Access by Landlord
(a) Landlord may at all reasonable times, with reasonable pdor notice to Tenant, except in the event of an
emergency (in which event no prior notice shall be necessary) dudng the Term enter to inspect the Premises
and/or may show the Premises and 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. and 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 le~ase for the Premises, Tenant shall continue making alt 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
sore discretion decides not to renew Tenant's Term, and if upon thirty (30) days notice from Landlord, Tenant
refuses to surrender thePremiees 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 indemnify Landlo~ against all claims and demands made by any succeeding tenants
against Landlord, founded upon delay by Landlord in deliverlng possession of the Premises to such succeeding
tenant.
SECTION 21.3 Successors/Joint and Several Liability .
(a) All rights, obligations and liabilities, herein given to or imposed upon, the respective parties hereto shall
extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal
representatives, successors and assigns of the said parties; and if there shall be more than one tenant, they shall
all be bound jointly and severally by the terms, covenants and agreements heroin. No rights, however, shall inure
to the benefit of any assignee, legal representative, trustee, receiver, legatee or other personal representative of
Tenant unless, the assignment to such party has been approved by Landlord in writing as provided in Section
14.1(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 quielly hold and enjoy the Premises for the Term
hereby demised without hindrance or interruption by Landlord or any other person or parsons lawfully claiming by,
through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease. Landlord's liability
under this Section shall cease upon a conveyance by Landlord of the Premises.
SECTION 21.$ Excuse of Performance
(a) Notwithstanding anything in this Lease to the contrary, if Tenant shall be delayed or hindered in or
prevented from performance bl~ any act required hereunder by reason of any strike, IoCl~o[=t, labor dispute, civil
commotion, warlike operation, invasion, rebellion, hostilities, military or usurped power, ~abotage, governmental
Create. Date: April 21, 1999 2:45 PM 31 Print Date: April 23, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH 1¥, ~13~2
regulations or controls, failure of power, inability to obtain any matedal or service, Act of God, or other reasons of a
like nature not related to the fault of Tenant, then performance of such act by Tenant shall be excused for the
pedod of such delay; provided, however, the foregoing shall not excuse Tenant from the prompt payment of Fixed
Minimum Rent, Percentage Rent, Tax Rent, Additional Rent or any other payments required by the 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 not be deemed in default ?i~h respect to the performance of
any of the terms, covenants and conditions of [hls Lease if Landlord's failure to perform such terms, covenants
and conditions is due to any strike, lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion,
hostilities, military or usurped power, sabotage, govemmectal regulations or controls, failure of power, inability to
obtain any material, service or financing, Act of God, tire or other casualty or other cause, whether similar or
dissimilar to those enumerated in this Section, 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 subsequent breach of the same or a waiver of any other term, covenant or condition
herein contained. The subsequent acceptance by Landlord of rent due hereunder or any or all other monetary
obligations of Tenant hereunder, whether or not denoted as rent hereunder, shall not be construed as a waiver of
any precedin9 brea=h by Tenant of any term, covenant or condlUon of this Lease, other than the failure of Tenant
to make the particular payment so accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acoeptance of such rent. No covenant, term or condition of this Lease shall be deemed to have been
waived by Landlord, unless such waiver be in wdting 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 stdct accordance with the terms hereof, notwithstanding any
conduct or custom on the part of the Landlord in refraining from so doing at any time or times with respect to the
Tenant.hereunder or with respect to other tenants of the Shopping Center. The failure of Landlord at any time or
times to enfome its dghts under said covenants and provisions strictly in accordance with the same shall not be
construed as having created a custom in any way or manner contrary to the specific terms, provisions and
covenants of this Lease or as having in any way or manner modified the same.
SECTION 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 eadiest stipulated rent or Additional
Rent 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 pdor to the same being deposited. Accordingly,
Tenant agrees that Landlord shall not be bound 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 accept such check or payment without prejudice to Landlord's
dght to recover the balance of such rent or pursue any other remedy provided in this Lease, at law or in equity.
SECTION 2'1,9 Creditworthiness of Tenant
(a) Within ten (10) days of receipt of a request therefor from Landlord, Tenant agrees to fon#ard to Landlord a
financial statement of Tenant and/or if applicable, Tenant's guarantor or surety, in form satisfactory to Landlord,
certified by an independent certified public accountant acceptable 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 the right to cancel this Lnase if Tenant refuses to execute or supply such additional
assurances and/or guarantors or sureties as Landlord shall state as necessary for such acceptance within thirty
(361 days after Landlord's request there¢or which request may not be made after delivery of possession. If any
such right [o cancel is exercised, this Lease shall 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 pady shall have any liability to the other by reason of such cancellation. After delivery of possession,
Tenant's failure to provide Landlord with a financial statement and/or said credit check authorization shall
constitute an Event of Default hereunder.
Create Date: April 21, 1999 2;45 PM 32 Pdnt Date: April 23, 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 21.11 Entire Agreement ~
(a) The Indenture of Lease, the Lease Agreement, the Exhibits and Rider, if any, set forth all the covenants
promises, agreements, conditions, representations, promises and understandings between Landlord and Tenant
concerning the Premises and there are no covenants, agreements, conditions, representations, promises or
understandings, either oral or written, between them other than as herein set forth. All prior communications,
negotiations, an'angements, representations, agreements and understandings, whether oral, written or both,
between the parties hereto, and their representatives, are merged herein and extinguished, this Lease
superseding and canceling the same. Except as herein otherwise provided, no subsequent alteration,
amendment, change or addit!on 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
enfomed. If any provision contained in any dder 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 in or adjoining the Shopping Center during the Term or
any pert thereof and Tenant hereby expressly waives all claim with respect thereto and acknowledges that Tenant
is not relying on any such warranty, 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 joint enterprise with Tenant. The provisions of this
Lease relating to the Percentage Rent payable hereunder are included solely for the purpose of providing a
metl~od whereby adequate rent is to be measured and ascertained.
SECTION 21.13 Notices
(a) All payments of rent and any and all other monetary obligations of Tenant accruing hereunder, whether or
not denoted as rent, shall be paid to Agent at: 555 E. City Avenue, Suite 460, Bala Cynwyd, PA 19004, until
Tenant is notified otherwise in writing, and all notices given to Landlord hereunder shall be in writing and
forwarded to it at such address, postage prepaid, by registered or certified mail, return receipt requested or by
nationally recognized expedited delivery service which provides proof of delivery. All notices to Tenant shall be
forwarded to it at the address set forth in the Indenture of Lease by postage prepaid, registered or certified mail,
return receipt requested or by nationally recognized expedited delivery servica or by delivery in person at sa'id
notice address or at the Premises, and in the event of a delivery in person, the affidavit of the person making such
delivery shall be conclusive proof of the delivery and of the date and time of such delivery. All changes of notice
address requested by Tenant shall only be valid and binding on Landlord if executed by ~ duly authorized officer,
partner or owner of the Tenant. All notices shall be deemed to have been given on the date when deposited in the
mail receptacles maintained by the corporation which has been chartered by the United States Government to
operate and deliver the mail as 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 behalf by Agent or by any attorney for Landlord or Agent.
SECTION 21.14 Captions
(a) The captions appearing in this Lease are inserted only as a matter of convenience and in no way define,
limit, construe or describe the scope or intent 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 as a
Tenant herein, be the same one or mere;; 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 or 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
Create Date: April 21, 1999 2:45 PM 33 Print Date: April 23, 1999 9:26 AM
::O DMA\PCDOCS\WCONSH 1 ,~813~
a group of two or more individuals or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural number where there is more than one Landlord or Tenant and to either
corporations, associations, partnerships or individuals, males or fem,/as, shall in all instances be assumed as
though in each case fully expressed.
SECTION 21.16 Negation of Personal Liability
(a) Notwithstanding anYthing contained herein to the contrary, Tenant agrees that Landlord shall have no
personal liability with respect to any of the provisions of this Lease and Tenant shall look solely to the estate and
property of Landlord in the land and buildings comprising the Shopping Center of which the Premises forms a part
for the satisfaction of Tenant's remedies, including without limitation, the collection of any judgment or the
en~'orcement of any other judicial process requiring the payment or expenditure of money by Landlord in the event
of any default or breach by Landlord with respect to any of the terms and provisions of this Lease to be observed
and/or performed by Landlord, subject, however, to the prior rights of any holder of any Mortgage covering all or
part of the Shopping Center, and no other 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 limited to mean and include only the owner of the Shopping Center of which the Premises forms a part~ In
the event of a sale or transfer of such interest (except a Mortgage or other transfer as security for a debt), the
"Landlord" initially named herein, or in the Case of a subsequent transfer, the transferor, as of the date of such
transfer, shall be automatically released from all liability for the performance or observance of any term, condition,
covenant or obligation required to be performed or observed by Landlord hereunder; and the transferee shall be
deemed to have assumed all of such 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 21.17 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 orto Tenant for the fulfillment or non-fulfillment of any of the terms,
covenants or conditions of this Lease or for any action Or proceedings 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, decision, rule or regulation of any governmental body having jurisdiction shall
have the effect of limiting for any period of time the amount of rent or other charges payable by Tenant to any
amount less than that otherwise provided pursuant to this Lease, the following amounts 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 all amounts which would otherwise 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 the 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 portion
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, covenant or condition of this Lease or the application thereof to any person or circumstance
shall to any extent, be invalid or unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances other than those as to which it is held invalid or unenforceable
shall not be affected thereby and each term~ covenant and condition of this Lease shall be valid and be enforced to
the fullest extent permittedby law. Furthermore, each covenant, agreement, obligation and other provision
contained in this Lease is, and shall be deemed and construed as a separate and independent covenant of the
party bound by, undertaking or making the same, and not dependent on any other provision of this Lease unless
expressly so provided.
Create Date: April 21, 1999 2:45 PM 34 Print Date: Apd123, 1999 9:26 AM
::ODMA\PCDOCS\WCONSH ,~6813~
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 acknowledge a short form of lease for recording purposes which shall be recorded at
Landlord's expense.
SECTION 21.21 Brokerage Commission
(a} Landlord and Tenant represent and warrant that they have had no dealings, negotiations or consultations
with 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 celled 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 part in any dealings, negotiations or consultations with respect to the Premises, the
Shopping Center or this transaction, the party having failed to disclose such contact will be responsible for and will
defend, indemnify and save the other party and Agent, harmless from and against all costs, fees (including without
limitation attorneys' fees) expenses, liabilities and claims incurred or suffered by such party and/or Agent as a
result thereof. Tenant 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 parties hereto that if any term, covenant, condition or agreement of this Lease is
capable of two or more constructions, one or more of which would render the provision void, and the other or
others of which would render the provision valid, then the provision shall have the meaning or meanings which
wou~d 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 result. Landlord and Tenant agree that time is of the
essence with respect to the performance of the respective obligations set forth in this Lease.
SECTION 21.23 Hazardous Material
(a) As used herein, the 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 ~ndlor 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 cepable of posing a risk of injury
to health, safety or property.
(b) Tenant shall not cause, suffer or permit any Hazardous Material to be brought upon, kept, used,
generated, manufactured, stored, disposed of, handled, released, or emitted, in or about the Premises or
Shopping Center by TenanL its agents, employees, contractors or invitees, except that construction materials
(other than asbestos or polychlorinated byphenyls), office equipment, and cleaning solutions and other
maintenance materials that are or contain Hazardous Material may be used, handled or stored on the Premises,
provided such is in de minimis amounts only and is incidental 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 fix'tums, leasehold improvements, or other mechanical apparatus
in the Premises or on the Shopping Center contains any Hazardous Material placed there by Tenant or Tenant's
agents, secants, 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 (i) ceuse Tenant to comply with 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
envirnnmant relating to such Hazardous Material, all of the foregoing tieing "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 Remediafion itself and to respond to, assess or remediate any condition
posed by the Hazardous Matedal and all threats to human health or the 'environment relating to such Hazardous
Material, in which event Tenant shall reimburse 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 must be previously approved in writing
by Landlord and shall have substantial experience in performing such Remediation. Tenant shall submit to
Create Date: April 21, 1999 2:45 PM 35 Print Date: April 23, 1999 9:26 AM
::ODMA~PCDOCS\WCONSH 1 .~6813~
Landlord for approval the insurance certificates of Tenant's environmental consultant and environmental
contractor, a wdtten Remediation plan and detailed 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, senita~ and storm systems from contamination during the Remediation
process and full compliance with all Environmental Statutes. No work disclosed in the Remediation ~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 approved by Landlord. Tenant shall
close for business while such work is being performed. Landlord rase~es the ;'ight to monitor the performance of
such work from time to time and, if Landlord believes that such work is being done in a manner which permits
Hazardous Material to escape from the Premises or violates any applicable Environmental Statutes or
Remediation process approved by Landlord, or othen~ise 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 contaminated equipment or materials removed from the Premises with new equipment or
material performing the same function. 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 fire retardant or reopen for business, until the results of such air
quality tests ara accepted by Landlord. Tenant shall perform 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 theRemedlation of the Hazardous Material from the Premises, Landlord shall
so notify Tenant of Landlord's anticipated commencement date Of such Work and Tenant shall close for business
not later than such date and remain closed until notified by Landlord to reopen whereupon Tenant shall promptly
reopen fo[ business. If Landlord performs such work it shall do so In compliance with all Environmental Statutes.
If directed to do so by Landlord, Tenant shall remove such of its merchandise, personal property and trade fixtures
as shall be required by Landlord for the compistlon of such work or Landlord, its contractors and subcontractors,
may relocate the same within the Premises or elsewhere in the Shopping Center during the performance of such
work; neither Landlord, Agent, nor their contractors 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.
(f) Tenant shall provide to Landlord copies of the following, forthwith after each shall have been submitted,
prepared or received by Tenant or any occupant of the Premises: (i) all applications and 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,
complaint, or other document received by Tenant or any occupant of the Premises pertaining to compliance with
or liability under any Environmental Statute.
(g) Tenant, without the prior written consent of Landlord, 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 any such Tank, Tenant shall comply with all applicable laws as to its
installation, maintenance, operation and closure, including any requirement for the maintenance of liability
insurance with respect to risks associated with any such Tank. If such liability insurance is required to be
maintained, Landlord shall be named as an additional insured thereunder and the provisions of Article 11 hereof
shall apply thereto. Upon termination 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 Environmental Statutes, or Landlord may perform such removal and tests and Tenant shall
reimburse Landlord, on demand, for all costs incurred by Landlord in doing so.
(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'governmental agency, or an acknowledgment by such
agency that such approval or consent is not 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\WCON SH. .6813~
hereinafter called a "Change"), Tenant, at Tenant's sole cost and expense, shall, in compliance with all
Environmental Statutes, apply for and, pdor to the Change, deliver to Landlord a copy of the required
Environmental Approval or acknowledgment and Tenant shall perform all remedial actions required by such
governmental 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 (i) promptly comply with any request of Landlord to provide such
information, statements or affidav'~ts 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 tenancy or to Tenant's use of the Premises or to any operation or activity at the Premises
dudng the Term and which were incurred to obtain such required Environmental Approval or acknowledgment.
Tenant covenants, represents and warrants that any application, statement or information made or provided by or
through Tenant pursuant to this subsection shall be accurate, true and complete.
(i) 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 Remediation 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 2'1.24 Submission of Lease to Tenant
(a) THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO BINDING FORCE
OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING PF THE PREMISES, NOR CONFER
ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER PARTY UNTIL THE EXECUTION THEREOF SY
LANDLORD AND THE DELIVERY OF AN EXECUTED ORIGINAL COPY THEREOF TO TENANT OR ITS
REPRESENTATIVE.
SECTION 21.25 Expenses of Enforcement of Lease
(a) If during the Term, Landlord incurs arty 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 Landlord 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
reasonable charges for services actually pe~:)rmed and rendered by independent, outside legal counsel.
SECTION 21.26 Shopping Center Lease
(a) 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 Cede, 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 Section 21.28 shall be deemed in any manner to limit
Landlord's rights and remedies under the Bankruptcy Cede, as presently existing or as may be hereafter
amended.
SECTION 21.27 Performance of Landlord's Obligation by Mortgagee
(a) Tenant shall accept performance of any of Landlord's obligations hereunder by any Mortgagee of
Landlord.
SECTION 21.28 Waiver of Jury Trial
(a) 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 INTELLIGENTLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNEC'I3ON WITH THE LEASE OR
ITS NEGOTIATIONS OR RELATIONSHIP WITH LANDLORD. TENANT HEREBY 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 wITH 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 ,~813~
THIS PARAGRAPH. TENANT FURTHER CERTIFIES THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD
THE OPPORTUNITY 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 VVHICH 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 COMPLETED
FIVE (5) BUSINESS DAYS AJ- H::R 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) Intentionally Deleted.
SECTION 21.3'1 Prior Lease
(a) Tenant is presently occupying the Premises pursuant to a lease agreement with Landlord (the aforesaid
lease agreement and any amendments 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 tbls Lease without the necessity 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 tothe terms of the Prior Lease including but not limited to the
payment of all rent and other charges required thereunder.
(c) . Notwithstanding any rule 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 Lease, and in such event, Landlord shall have the
right, in addition to, end not in lieu of, any other remedy at law, in equity or otherwise, to exercise any and all 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, covenants, controversies, agreements, promises,
damages, claims and demands whatsoever, in law or in equity, which Tenant has or may have against Landlord
arising oat 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
representation or warranty whether the satellite dish will be compatible with Tenant's trensmttting or receiving
systems or that Landlord will continue to provide same for the duration of the Term.
(b) Tenant shall defend, indemnify and save Landlord harmless from and against any and all 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 empJoyees.
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 with the following criteda 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 permitted only if in conformity with these
sign regulations, and provided such contain no product advertising.
2. Signs shall consist of individual letters and not of boxtype unless approved by Landlord at Landlord's sole
discretion. Exposed lamps, signs of the flashing, 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 ma.xirfium, up to 2½" thick, unless
otherwise approved, and pin mounted. The face of all letters must be in the same plane. Pin projections are not
to exceed 1" to the back face of letters.
b) Ii" letters of two (2) sizes are desired then they shall be consistent in style. Capital or upper case letters
are limited to a maximum height of 18" and lower case letters ara limited to 12". Approval by Landlord of any
deviations from this criteda 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 faet (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 storafronts or show windows are prohibited with the exception of small-scale signs or
Iogo's which are neatly lettered on the glass of the storefronL . .
5. Subject to compliance with all applicable code requirements, 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 Landlord's sole discretion as to design, size and
location.
8. No exposed raceways, ballast boxes or electrical transformers will be permitted.
9. Sign company names or star'ps shall be concealed (applicable ordinances and codes permitting).
10. No exposed sign illumination and no flood lighting of s gns or storefronts shall be permitted.
11. No permanent or temporary window signs fastened to the interior or exterior of the show window sha be
permitted except for small signature or identification signs lettered directly on the glass, not over four and one-half
inches (4½') In height.
12. No more than one store sign may be installed on each rnali 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 the 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. M. aximum brightness allowed for interior signs which front on the enclosed mall will 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 Pdnt Date: April 23, 1999 9:26 AM
:OOMA~PCDOCS\WCONSh ~ !166813~.
15. Signs and ident~ing marks shall be placed entirely within the boundaries of the Premises with no part
higher than the neutral curtain 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 shews 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 matadal
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 are in compliance with the foregoing criteria, no such sign
or other method of identification shall be installed by Tenant without Landlord's prior written approval of their size,
type, location, quality and aesthetic properties.
(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 ofthe 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
'.:OQMA\PC DOCS\WCONSt-., d66813~2
EXHIBIT "C"
ELECTRICITY SCHEDULE
(al It is intended by Landlord and Tenant that Tenant's coat of electricity be included, as Additional Rent, in
the rent reserved in the Lease. Since the use characteristics of Tenant's electrical equipment and fixtures are not
yet known, it is not presently possible for Landlord and Tenant to agree upon the amount to be included as '
Additional Rent on account of such cost of electricity. 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 ~mount 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 then twenty (20) days after the date hereof, Tenant shall furnish Landlord with such information
as Landlord or Landlord,s eleCtrical engineer may reasonably require in order to estimate the connected load
which will be used by all of Tenant's electrical fixtures, appliances and equipment ("Terlant's Electrical
Installations") in the Premises. Based on such tnformaticn, Landlord or Landlord's electrical engineer shall make
an estimate of the annual total of average monthly charges (the "Electricity Component") which Tenant would
otherwise be required to pay to the public utility or public authority then furnishing such electricity to the Shopping
Center if, on such date, such electricity were being furnished directly 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 per month (the 'Minimum Usage"). Landlord shall notify Tenant, in wdting, 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 with 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
otherwise 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 under 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 electricity service whether such utility retains such charge, tax,
surcharge or other sum, or is required to pay all or any part thereof to any government, taxing authority or other
governmental or quasi-govemmantal agency or authority. For the purpose of Section 7.3 of the Lease, in
determining Landlord's cost of furnishing electric service to the enclosed mall, such cost will be determined in the
same manner and subject to the semo adjustments as Tenant's Electricity Component.
2. At any time after the expiration of one (1) year from the date of the notice referred to in Paragraph 1, and
from time to time thereafter, if, in Tenant's judgment, Tenant's Electrical Installations have a lower connected toad
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 Component. If Landlord
and Tenant do not agree upon the amount of such reduction, the parties 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 duly qualified in terms of professional education and experience so as to be competent to determine, as an
expert, whether, as of the date of the request for a reduction, based upon the cdteda 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 furnished 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 accordance with the rules of said Association including, but not limited
to, those rules regarding the manner of selection of the arbitrators, at such office 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 (a) 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 authodfy if on such date the same were not being
furnished by Landlord, and (b) if more than or less than such annual amount of the charges which Tenant would
otherwise be required to pay, as aforesaid, the amount of such excess or deficiency. The decision o~' the Umpire
or Arbitrator (as the case maybe) shall be binding upon both parties and not subject to appeal. Notwithstanding
Create Date: April 21, 1999 2:45 PM 1 Print Date: April 23, 1999 9:26 AM
, ':CL~M,~,\PCDOCS\WCONSI-, .,66813~
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 time 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,
Tenant shall have a right to request a reduction in such increase in accordance with the procedure provided in
Par";graph 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 arbitration, as the case may be, the cost of such appraisal or arbitration shall be paid for by
the pady requesting an appraisal. In each case, upon completion of any appraisal or, if necessary, an arbitration,
the Electricity Component (and each monthly installment thereof) shall be adjusted by the amount, if any, of the
excess or deficiency so determined and any change in the Electricity Component shall become effective as of the
first day of 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 thereof) 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 Landlord 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
paragraphs 2 and 3 above. In the event it shall be subsequently determined that Tenant has overpaid the
Electricity Component~ Landlord shall refund to Tenant the full amount of such overpayment within thirty (30) days
after such determination is made. Furthermore, at any time after 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 RenL Tenant shall also
be responsible for the costs and installation of such an electric meter.
Create Date: April 21, 1999 2:45 PM 2 Print Date: April 23, 1999 9:26 AM
EXHIBIT 2
03/14/20e2 18:42 7177376429 CAHPHILL HALL PAGE 02/e5
I R~rt Per~- 03/02 Aged D~inquent ~nd Prepaid ~lances ~ge: .... ~
............ ,
IG/$~/O0 Y-CB~L F~O-CA CH 2~,Z17'.46
8, 4/*3.77
I~Z3~/00 ~-H ~L F~-HV ~ ~,~9.67 2.~98.06
t~/~O V-I ~L F~-I~ CH ~,49B.06 16.25
I0/~I/00 Y'! BAL F~-I~ CH 16.~
10/5~ YOX ~AL F~-EX CH 6,~9.0~
10/31/00 Y~ 8AL F~-NE CH ~,~3.T1 1,ZS7.Z5
Ia/SilO0 YRX ~AL F~-RE CH 1,~.Z5
11/01/~ Y-C IAL F~*CA CH 1,5~.~0
11/01/00 Y-E BAL F~-[L C~ 5~8.~
11/01/00 Y-~ ,rtl F~-aV CH ~.00 165.6Z
11/01/00 Y-, B~L F~-~ CH ~1.]~
11/01~ ~A ~L f~-Ne CH 165.67
1~/01~0 C ~H CHARGE CH 1,5~.40 1,590.~0
tZ/Ol~O E ELECTRI~ c CH 550.4~ 16~,67
I~/0!/00 ~k MKHA~T A CH 165.6T 91,07
1213~100 R R~ ~ITAT CH 91.87
02/01~1 C ~ CHA~ CH 1,5~.~ 1,590.~0
0~/01/01 E ELECTRIC C CH 55~.~ ~25.00
0[/01/01 X ~V~ RE~L CH 2~5.~ 165.67
02/01/01 [ IN~RANCE CH 165.67 165,67
0~/01/01 ~A HERCNANT A CH 165.67 331.~4
02/01/01 R R~ EGTAT CH ~.~
03/01/01 E ELECTRIC C CH 5~-~ 225.00
03/01/01 H HV~ RE~L CH 2~5.00 165.67
03/01/0~ ] [ N~NCE CH 16~.67 165.67
0~/01101 HA ~RCHANT A CH 165.67
03/01/01 R ~ ffS~AT CH ~1.~
04~1/01 a ~I~IH CH 3,~3.~ 1,590.4~
o~/Ol/Ol e EL~TRZC C CH 558.~ 225.00
~/ol/01 H Hv~ RE~L CH ~5.~ 165.67
04~1/01 X X~AN~ Cfi 165,67 165.67
~1/01 ~ HEighT A C~ [6~.67
~I/01 R R~ ESTAT CH ~31.~
05/01/01 B BASE~XH1N- CH },~,~
03/01~1 C ~ C~GE cH 1,5~.~ 5~8.44
D5/01101 E EL~TRIC C CH 558.~ Z25.00
0~/01/01 H ~ RE~L CH Z~.~ 165.~7
~5/01/01 t [ fl~RA~E CH 1~.57 I~5.67
05/01/01 ~ ~RCHANT A CH 1~.~? 331.~
05/01/01 R R~L E~AT CH ]~1.~
05~/01 CX EXCESS ~H CH 3,~Z.T~ 1.~.~
05~Zl~ EX ~X~ RE CH ~.15 502.03~
06/01/01 c ~ C~R~ CH 2,0~,~ 5S8.~4
06/01/01 E ELECTRIC C CH 558.~ 300,00
~/01/~ [ ti~e CH 65,26 1~9.M
06/Q1/01 ~ ~R~ANT A CH 1~,~ 4~-~
06/01/01 R K~& EITAT CH ~9.08 3.333.34
OT/Ol/Ol C ~ CHARGE CH Z,o3~.~
0T/01/01 E E~ECTRIC c CH 5~,4~ 300.~
OT/01/Ot H HVkC IE~L CH 3~.~ 65.26
0?/011fll ] II~NCE CH 6~.Z6
0~/01/01 ~ ~RCXANT A CH 1~.60 469.08
0~/01/01 R REAL ESTKT ~g ~9.~ 3,333.~
~/01/01 B BA~E/HININ CH 3,333.~ z,032.93
~/01/~1 C ~ CHARGE CH Z,O3Z.~
03/1472002 1@:42 7177376429 CAMPHILL MALL PAGE B3/05
~epert Peried: 0~/02 Aged D~.nt end ~pald Balance~ ~: Z ~
EDWARD$ CAIRI;~ & GIFT Continued:
08/01/01 E ELEG;R;G C
C8/01/0t ~ Hv~c ~E~L C~ ~.~
~8/0'1/01 HA ~RCHANT A CH 189.~
08/01/01 ~ R~L ESTAT
09/01t01 ~ 8A~E/N[NIN CH
09/01/01 C ~ C~ CH ~,032.93
~/01/01 E ELE:TRIC C
~/01/01 ~ HYAC RE~L
~/0t/01 i IN~NAN~
~/01/01 HA ~ERCHANT A
~/01/01 R RE~ ESTAT CH G~.08
10701/01 B BA~/NININ
10/01/01 C C~ CHARGE
~0/01/01 ~ 9LICTRIC C CH
10/01/0t ~ HVAC RE~ CH ~00.00
10/01t0~ I ~NSURANCB CH 65.Z6
10/01/0t ~ ~RCHANT A CH 189.~
10101t01 ~ RE~ ESTAT cH ~9.~
11/~/01 C ~ C~AR~ CH 2.032.9~
11/01/01 E ~LICIRIC C
11/01/01 ~ HVAC RE~L CH
11/01/01 ] INSURANCE CH ~.~
11/~/01 ~ ~RC~ANT A CH 189.~
11/01/~I R RE~ E~TAT
1~/01/01 8 ~[Nlfl cH 3,3~.34
1Z/Ol/Ol c ~ CH*R~ CH Z,032.93
12/~101 E ELECTRZC C CH
12101/01 ~ I IS~AN~ CH 65.26
I~01/01 HA ~flA,T A CH 189.~
01/01/0~ 8 ~/N(NIN CH 3,333.~
01/01/0~ C ELECTRIC C CH
01101/0Z N HV~ RE~L CH ~O0.OO
01/01/0Z t ' I~A~ CH 65.26
01~1/0~ R REAL ESTAT C~ 469.0~
OZ/01/O~ H HVAC ~L C~ 300,00
02t01IOZ I IN~R~ CH 65.Z6
OZIOltOZ ~A ~RCR~T A CH
OZ/01/O~ R R~ ESTAT CH ~g.08
02/2BtOZ CX EX. St ~
OZ/Z~/O~ TX lU~ NC
02/28/0Z aX EX,SS ~ CH 1,0~5.~
~/0110Z e ~lNtH CH 3.33~.~
0]/01/~ C C~ ~E CH Z,O3Z.93
03/01/~ E ELECTRIC c cH
03/01/~ N ~ RE~ CH ~O0.O0
~1011~ I iN~RANCE CH 65 .~6
n
3,333.3~
Z,0,52.93
300 · O0
65.26
3,333..%
2,03~.93
3O0
202.96
9o193.60
3,3]3.34
300.00
65
3,333.3~.
~00.00
65.26
189.68
558,z~
]00.00
65.7.6
189.68
469.06
3,333 .;3~
2,032
g58,4~,
300.00
1~9.~
558.~
]00.00
Z,~Z.~
558.~
~69.~
B BASE~II N II~LIM RRNT $0,000.10 3.333. $~. ~,~.~ 3,333.3~ 3,~3.3~ ~,~.7&
CX EXCESS ~
E ELECTRIC CHA~E 8,376.~ 558.~ 558.~ ~58.&& 558.44 6.16Z.~
H HVAC R;~LAR 3,~,~ ~.00 ]00.00 300.00 300. O~ ~,~.00
~ IN~ 81~.Z~ 65.~ ~5.2~ e~.26 65.2~ 552?9
IX IH~k~ laC. - ~cES 1,749.~6C~ O.O0 5~.52CR 0.00 0.00 1,Z~,9~CR
HA ~RCHANT
Y-~ BAt F~,~E
83/1472882 10:42 ?177376429 CAMPHILL MALL PAGE 04/~5
I~eport per~od* O;~/OZ Aged D~inqu~t end ~epaid Babnoes ~;~e:
~h · ~, ,i,Ling ~,:,) ,
?~, 80'/'.86 0. OCt O. O0 0. O0 O. OD 2S, 807. ~
9,002.21 O.OO O.O0 0.~ O.OO 9,002.ZI
~, ~S4.67 0.00 0.00 0.~ 0.00 3,134.67
~,6~.~ 0.00 O.O0 O.~ 0.00 2,6~.~
5,~0.1~ 0.00 0.00 0.~ 0.00 5,300. I~
6,~9.~ 0.~ 0.00 0.~ 0.00 6~9.09
~,~.38 O. O0 O.O0 0.~ O. O0 ~, ¢89.38
1, ~7.~ O. O0 O.OO ~. ~ O. O0 1. B57.25
EXHIBIT 3
CHARLES W. JOHNSTON
lAMES A. DIAMOND*
*Also Admitted to NJ Bar
LAW OFFICES
JOHNSTON & 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) 975-55 11
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 terminate, 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 temdnation
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.
IAD/jrf
Enclosure
cc: William Bubel, General Manager
Amy Matthews, Esquire
Michael Boden, Vice President/Regional Manager
, 0,3/1.4/2002 18:42 7177376429 CANPHILL NC~L.L PAGE 02/~5
I;t~rt ~erio~; 0]/0~
................. :~, .. .... <..,< ............ ~.,,,,..~...:. ~..~. :.~,.~.~:~;~:~::~::~%~?~:::;:;,~;q~;'~..~,...~:~ .~.~ ........ . ................. _~ .......~..~.~.,.~,.~ ........ ~ ..,~
t~/31~ Y-CML F~-~ CN
lO/$1JgO Y-! ML fl, O-EL C#
11/0t/~ Y-E ~L ~.EL C~
11/01~ Y-R ML F~-RE CH ~I,~
11/01~ ~ F~'~ CH ~.~
1z/01~ E EL~R~C C ~
12/01/~ ~ ~r A cB 165.6~
I~/Oq~ R ~ ~TAT ~
02/0~/01 e ~M/MIMIN C~ 3,~3.~
02/01~1 c ~ C~GI C~ 1,~.~
0~/01/01 E EL~lC C CH ~-~
03/01/01 ~ ~R~T k CH 165.~
03/01/01 · ;~ I$TkT C~ 3~1.~
~I/~ ~ ~T A ~
0~/011~ R ~ ESTkT CH
05~1~1 ~ fL~TRlC C ~ 55B.~
~5/01/0~ J JJ~ ~
~101/01 ~ ~ A ~ IM.6~
05/~/Ot ~ EXCE~ ~ ~
05/0~/~ ax EX.SS ~ c~
06/01/01 n ~ EeTAT ~ ~-~
0T/01~I ~ ELE~RZC c c~
0~/01~1 ~ NVAC RE~ C~ 300,~
C ~ CH~E CH
8, 443. '~r
2,909.6?
2,498.06
16 · 23
&,968.78
&,389.09
1,~7. Z5
558. ~
I~. 67
1,5~.~
165
~1
Z~.~
16S.67
~1.~
'
558.4&
~5- OO
165.6~
165.67
q. 590. &~
55a.~
t65.6~
165.6~
331,~
558.~
1~.67
~1.34
3,~7. T4
50Z.05~
3,333.~
5S8.~4
300. O0
I~.M
5S8. ~&
3~ .00
~5.Z6
~9.08
3.3~.34
Z,~Z.93
. 0,~/1.4/2002 l@: 42 7177376429 CA--ILL MALL PAGE 83/85
~CGy ~th ~e BStti~ Dire) ' '
EDWARDS CAR0~ & GIFT C~ntim~:
R~ ESTAT ~
~1/01 NA ~ANT A ~
~101/01 R~ ESTAT ~
I0/01/01 ELgGTRIC C ~
10/01/01 HV~ ~ ~
10f01~I ~ ~C~NT k ~
10/01/0t ~ E$FAT CH
12/01/01 C ~ ~A~ ~
12101101 ELKTRIC C CH
12/01/01 R R~L iITAT CH
Ol/Ot/OZ ~ ELECTRIC C ~
01/01/OZ ~ Hv~ RE~L c,
011011~ ' I~ ~
0~01/~ ELECTRZC C ~
02/01/~ HV~ ~ CH
02/01/OZ ~ ~WT 4 CH
02/Ol/OZ R ~ ESTAT CH
02/2~0~ IX I~ NC
03/0110Z 6 H~ININIM C,
03~1/~ ; E~TRIC C ~
~101/~ M ~RC~ k CH
65.26
3,333.34
~,03~.93
65.Z6
3,333.3~
2,03P. 93
Z.~3~.93
538.&4
~.0~.~
2,0~.~
~0.~
~,O3Z.~
3~, O0
~.Z6
3,335.3~
65.26
ZOZ.~6
r~O.O0
Z02.96
9,193
3,333.34
65.Z6
65.Z6
159.6~
TOT~:
BASE/rd1 #1MUH Itffl~T
C ~ CHUG[ 28,~I.~ ~,03Z-93 ~,~.93 2,0~.~ 2.~Z.93 ~.149.38
CX eX~ ~ ~Z,~.3~ o.~0 9,193.~ 0.~ 0.0~ . 3,~r.74
HV~ RE~LAE
lH~ IgC. -
R REAL ESTATi T~ 6.1~.~
gx EXCESS ~ T~
Y-9 $AL F~-~E ~E~T 38,~.~ 0.00 0.~0 0.~0 0.00 ~0~.~
· ~3/1.4t2802 10:42 717737642~ CJ~HILL NALL_ PAGE 04/0§
I
3/18/02
~.dward's Cards & Gifts, Inc.
/ir~,-i~. ~i;;'~--~;~ ~'ii;;. .............
2049 Stout Dr. , Unit B-1
~'~%~;~ ......................
· Comph~te items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on 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.
1. A,'tic~ Addressed to:
ATTENTION:'CEO
Edward's Cards & Gifts, Inc.
t/a Edward's Cards & Gifts
2049 Stout Dr., Unit B-1
I~yland, PA 18974
D. Isde~veryaddmssdiffere~ntfmmiteml? I-lyes
If YES, enter delivery ~ bellow: [] No
,,
i-I Registered [] Return Receipt for Merchandise
[] Insured Mail [] C.O.D.
4. Restricted Delivm~? (F_.x~a Fee) [] Yes
2. Article Number
pS Form 3~$1, August 200t' ' '11 i"t' I' I'~drt~t~ ~'li~del~~'''''ll''l'l'''lll~'''l
7099 3220 0009 6893 6379
102595-01 -M-2509
83/1412882
10:42 7177576429
Jo /r.s
LASALLE.
CAMPHILL NALL
Camp Hill Shopping Mall
32na St and Trindle ~.
Camp Hill, PA 17011
Phone: 71%737-6527
Fax: 71%73%6429
P~E
85/85
$uly 12, 2001
Edwards Cards & GiRs
Bonnie Kravitz
2049 Stout Drive, Unit B-I
Ivyland, PA 18974
R.E: Cawp Hill Mall/Edwards Car~ & G/tilt'Store # C9
Dear Bonnie Kravitz:
Thc purpose o f this l ette~ is to noti fy you that you sro in default u~ler the terms o f your leaim for thc premises
identified above. As of the date of this letter, you have failed to timely pay the followit~ items:
Arrearages and current rent in the amount of $141,620.83.
If payment is not made or other arrang~m~nta suitable to Landlord s/re~ to, in writing, within th~ time period
provided to you umier your l~as~, if any, the Landlord will be free to ~xmcise any ~md all remedies available to
it un.der the l~a.~ and the laws ofthi~ state including, but not !!_m__!t~I to, thc coramcnceme~lt of eviction
procedures. You ar~ hereby also put on notice that your failure to rem~y this default, in a tinmly manner, may
subject you to Landlord's claim, for attorney's fens and court costs.
Sincerely,
Williarn Bubel
General Manager
CEKTEFIED MAIL RECEIP'r #
cc:
Michael Boden, Regional Manager
Amy Matthews, Legal Departxuent
lames Diamond, Local Counsd
. John-david Franklin, I~asL~g
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 LiwE INSLFRANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & GU~TS, INC., doing
business as EDWARD'S CARDS & GIFTS, a
Pennsylvania Corporation,
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
No.
CIVIL ACTION - LAW
CERTIFICATION OF ADDRESSES
PURSUANT TO Pa.R.C.P. 236
lows:
I, James A. Diamond, Esquire, attorney for Plaintiff in the above matter, hereby certify as fol-
The address of Plaintiff is as follows:
Connecticut General Life Insurance Company
Camp Hill Shopping Mall
32nd 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 & DL~MOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
BYj~es~A. -~-~ c~
)/~a~ Diamond, Esquire
~i. I.D. No. 43902
Attorneys for Plaintiff
Dated: April 3, 2002
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 I .~ ~'1~ INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
EDWARD'S CARDS & Gm'rS, INC., doing
business as EDWARD'S CARDS & GIFTS, a
Pennsylvania Corporation,
Defendant
IN TI-IE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
NO. ~) 2 '?~ 3 ~
CIVIL ACTION - LAW
NOTICE TO DEFENDANT BY PROTHONOTARY
OF ENTRY OF CONFESSED JUDGMENT
TO: EDWARD'S CARDS & GwrS, INC., d/b/a EDWARD'S CARDS & Gte'rS
You are hereby notified pursuant to Pa. R.C.P. No. 236, that on ~0r/t/.~ ,2002,
judgment by confession in the amount of $238,010.18, was entered against you in the above-
captioned case.
Dated: L/- ~-I0~
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