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HomeMy WebLinkAbout02-1805Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 CONNECTICUT GENERAL Lt~'E INSURANCE COMPANY, a Connecticut Corporation, Plaintiff V. CHARLES W. WILEY, JR., a Sole Proprietor, doing business as WILEY'S Dm, Defendant IN TI-IE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW CONFESSION OF JUDGMENT IN EJECTMENT FOR POSSESSION OF REAL PROPERTY Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant for possession of the real property described as follows: The premises designated as Store No. L-6 erected as part of the shopping center known as the "Camp Hill Shopping Center," located at 32na Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania, as is more fully described in the Lease, a copy of which is attached to the Complaint filed in this action. Respectfully submitted, JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: April 10, 2002 /r Jflmes A. ' nd, Esquire kjPa. I.D. No. 43902 Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut Corporation, Plaintiff V. CHARLES W. WILEY, JR., a Sole Proprietor, doing business as WILEY'S DELI, Defendant IN ~ COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW COMPLAINT BY CONFESSION FOR POSSESSION Plaintiff, CONN~CTIC~JT GENERAL Dee INS~CE 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 2970, et seq., of the Pennsylvania Rules of Civil Procedure, whereby Plaintiff confesses judgment against Defendant, CHARLES W. Wn~F~Y, JR., a Sole Proprietor, doing business as WILEY'S DELI, for possession of real property located at Store No. L-6 at the Camp Hill Shopping Center, Camp Hill, Pennsylvania, and in support thereof alleges as follows: 1. Plaintiff, Connecticut General Life Insurance Company (hereinafter the "Landlord"), is a Connecticut corporation which has a place of business at the Camp Hill Shopping Mall, 32na Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. 2. Defendant Charles W. Wiley, Jr., a Sole Proprietor, doing business as Wiley's Deli (hereinafter the "Tenant"), at relevant times had an address at 200 Mountain Road, Lewisberry, Pennsylvania 17339. 3. Landlord, through its predecessor-in-title, and Tenant entered into a certain shopping center Lease Agreement dated June 18, 1985, which was thereafter amended and extended by virtue of an Extension Agreement and Amendment of Lease dated July 5, 1991, and a second Amendment of Lease dated April 4, 1997, pursuant to which Landlord leased to Tenant 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 32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. A true and correct photostatic copy of the said Lease, together with its Amendments (hereinafter the "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's predecessor-in-title and Tenant for the purposes of Tenant conducting a 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- ral person in connection with a consumer credit transaction. -2- 7. Tenant, by virtue of the Lease, took possession of the said store premises designated as Store No. L-6 at the Camp Hill Shopping Mail (hereinafter the "Demised Premises"), which De- mised Premises is more particularly described in the Lease that is attached hereto as "Exhibit 1" and incorporated herein by reference. 8. The Lease terminated by the expiration of its stated term on October 31, 2001, at mid- night, as is set forth in Section l(a) of the Second Amendment of Lease. 9. The Lease, in Section 4 of the Second Amendment of Lease, provides, in pertinent part, that the "Lease shall expire absolutely on October 31,2001, without the necessity for any notice whatsoever," and that Tenant on or before that date "shall vacate and surrender possession of the Premises to Landlord in accordance with the provisions of the Lease .... " 10. As of the date of this Complaint, Tenant remains in possession of the said Demised Premises notwithstanding that the Lease has tenrfinated by virtue of the expiration of its stated term and notwithstanding that no new Lease has been entered into between Landlord and Tenant. 11. Pursuant to the Lease, including Section 3112, Landlord now has the right to confess Judgment for Possession against Tenant. 12. The Lease, in Section 3112, provides in this regard as follows: "In the event that, and when, the Lease shall be determined by term, covenant, limitation or condition broken, as aforesaid, either during the original texm of this Lease, or any extension thereof, and also when and as soon as the term hereby cre- ated, or any extension thereof, shall have expired, it shall be lawful for any attorney as attorney for Tenant to sign an agreement for entering in any competent Court an amicable action and judgment in ejectment, without any stay of execution or appeal against Tenant and all persons claiming under Tenant for the recovery by Landlord of possession of the herein demised premises, without any liability on the part of the said attorney, for which this Lease shall be a sufficient warrant, whereupon, if Land- -g- lord so desires a writ of possession with clauses for costs may issue forthwith without any prior writ or proceedings whatsoever. If for any reason after such action has been commenced the same shall be determined and the possession of the premises hereby demised remain in or be restored to Tenant, the Landlord shall have the right to any subsequent default or defaults to bring one or more further amicable actions in the manner and form hereinbefore set forth, to recover possession of said premises for such subsequent default. No such determination of this Lease nor taking, nor recov- ering possession of the premises shall deprive Landlord of any remedies or action ag [sic] against Tenant for rent or for damages due or to become due for the breach of any condition or covenant herein contained, nor shall the bringing of any such action for rent, or breach of covenant or condition nor the resort to any other remedy herein provided for the recovery of rent or damage for such breach be construed as a waiver of the right to insist upon the forfeiture and to obtain possession in the manner herein provided. 13. Attached hereto as "Exhibit 2" and incorporated herein by reference, is an Affidavit made on behalf of Landlord, through its agent, attesting to the facts that the Lease expired on Octo- ber 31, 2001, and that Tenant continues to be in possession of the Premises. 14. There has been no prior exercise of the warrant of attorney to confess judgment con- tained in the said instrument in any jurisdiction. 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- sylvania General Partnership, effective November 1, 2000, in connection with a conveyance of the property to Landlord. -4- WHEREFORE, Plaintiff prays your Honorable Court to enter judgment in ejection in favor of Plaintiff and against Defendant for the said Demised Premises located at Store L-6, Camp Hill Shop- ping Mall, 32na Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. Respectfully submitted, JOHNSTON & DIAMOND Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 ~/J~]nes A. Diamond, Esquire L,Fa. I.D. No. 43902 Attorneys for Plaintiff Dated: April 10, 2002 -5- * 3/2 7/(~7 StWHM ,SECOND AMENDMENT OF LEAS[' THIS SECOND AMENDMENT OF LEASE, made this L/T~ day 1997, by and between CAMP HILL SHOPPING CENTER ASSOCIATES (he~:einafter called "Landlord"), and CHARLES W. WILEY, JR., individua~y, Ua Wiley'.~ Deli (hereinafter called ("Tenant"). * WHEREAS, by lease dated June 18, 1985, (said lease together with all prior amendments thereto are collectively hereinafter called the "Lease"). Landlord leased to Tenant all those certain premises owned by Landlord situate in the Camp Hilt Shopping Mall, Camp Hilt, PA, known and designated as Store Number L6 ("Premises") for a term of years upon certain terms and COnd/tions as set forth in the Lease; and WHEREAS. Tenant has been on a month-to-month tenancy since the expiration of the Lease on June 30, 1996; and WHEREAS, the parties hereto desire to extend lhe term of the Lease for · an additiona~ period of five (5) years commencing November 1, 1996 ( ffectlve Date") upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the afore, said, and of the sum' of One ($1.00) Oollar, by each to the other in hand paid, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intended to be legally bound hereby covenant and agree with each other, as follows: 1. From and after the Effective Date the provisions of the Lease .. hereafter set forth are amended as follows: (a) Section 201(B) of the Lease entitled "Term" shall be amended to read as follows: The term of this Lease shall be for a period of five (5) years beginning on the first (1st) of November and ending on the thirty first (31st) of October, 2001, at midnight. (b) The Section 201(D) of the Lease entitled "Minimum Annual Rental" shall be amended to read as follows: From the Effective Date through the 12th month: : From the 13th month through the 36th month: From the 37th month through the end of the Term: Ye_~ar M~onth $17,500.00 $1,458.33 $18,550.00 $1,545.83 $20,220.00 $1,685.00 2. Tenant shall continue to pay the Annual Percentage Rent as set forth in Section 201(E) of the Lease. 3. Tenant hereby acknowledges that (a) Tenant is presently occupying the Premises; (b) Landlord has no responsibility to perform any work therein; and (c) as of the date hereof, Landlord has fully Performed all of its obligations under the Lease. 4. The te~m of the.Lease shall expire absolutely on October 31, 2001 without the necessity for any notice whatsoever. On or'before October 31, 2001, Tenant shall vacate and surrender possession of the Premises to Landlord in accordance with lhe provisions of the Lease. There Shall be no hokJing over of the Premises by .Tenant after October 31, 2001, unless Landlord and Tenant execute an agreement which provides for Tenant's occupancy after October 31, 2001. 5. Except.~as specifically amended hereby, all of the other terms, conditions and covenants contained in the Lease and all other terms whether or not deemed personal covenants shall continue in full force and effect and are hereby ratified and republished. 6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their resi3ective heirs, executors, administrators, successors and aSs~ns. [SIGNATUREs ON FOLLOWING .PAGE] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed on the date and year first above written. LANDLORD: KRAVITZ PROPERTIES, INC., Agent for Landlord N.~ ~j -' ~ '~,President TENANT: CHARLES W. WILEY, JR., an individual By: ..... '!~-,-,. ~-~ (.(* !g..c ~ Y' j ~][[S Ex~SIC~ A~ AND AM~ OF LEASE, made the 5th ~ay of July, 1991, to be effective as of the lst day of July, 1991, by and betweell Kravitz Propez~cies, Inc., 555 E. City Line Avenue, Bala Cyr~, PA 19004, Agent for Ca~ Hill Shopping Ce~ter Associates, A P~lvania partnership (hereinafter called "Landlord,,), 'and C~arle~ W. Wiley, Jr., i~dividually and t/a Wiley's Deli, of 200 Mountain Road, Lewisb~, PA 17339 (hereinafter called 'Tenant,,). ~, by T--a~e dated the 18th day of June, 1985 (hereinafter referred, to as the "Lease'.), La.lord leased to Tenant Building No. L, Store No. 6, containing 5OO square feet in the Camp Hill Shopping Mall, all as more particularly sh~ on E~hibit "A" to the ~ for the term and upon the rentals and Upon other term~ and conditions more fully set forth in the Lease: and ~qFAS, the parties hereto desire to exten~ the term of the [ea~e for an additional period of Five (5) years, ~ing 7/1/91 and terminating 6/30/96 upon the terms and conditions set forth herein. NOW ~%I~E, in cc~sideration of the aforesaid, and of the ~ of One ($1.00) Dollar, by each to the other in hand paid, the receipt and sufficiency of which is hereby ackn~.~ledged, the partie~ hereto, intending to be legally bound hereby, covenant and agree with each other, as 1. co~m~_ncing July 1, 1991, Sectio~ 201(B) of the I~_~e entitled '~%rm,, shall ~ ~ to ~d as folly: ~ ~e~ of ~ [-a~ ~11 ~ for a ~i~ of Five (5) 30~ of J~, 1996, at millet. ~ ~ (~) ~ ~ (2) $~5,000.00 Y~ ~ (3) ~ Five (5) $17,~.00 201 ~ ~ad as folly: M. Annual Food Court Porter Service Charge: $2,690.00, which shall be a f~xed annual rate for the entire extende~ five (5) year term of the Lease, and shall be payable r~o~thly i~ accordance with the Lease Pr~posaI (defi~ed in Paragraph 6 hereof). 4. ~o~encir~ Ju/y 1, 1991, Section 201(E) of the r~se entitled "Annual Percentage Rent,, shall be amended to read as follows: A s~m equal to eight excess of two hundred and fifty thousand dollars ($250,000.00). Extension ;~3r~nt and Amendment of r~e is contingent upon the Tenant,s l~-rformance of the following (a) Tenant shall pay to Landlor~ the sum of Ten Thousand and Five Hundred Dollars ($10,500.00), i~ twelve (12) equal monthly installments of Eight Hundred ar~ Seventy-Five Dollars, ($875.00) by cash, c~rtified or cashier,s check or money order on the 1st day of each month without demand or notice co~l~Cing on the 1st day of July, 1991 and continuing on the 1st day of each of the following 11 months, as full payment for the satisfaction of all of Tenant,s outstanding arrears fr~ the c~ce~nt data of the l~itial term of the [ease th~ March 30, 1991. The aforesaid a~-~unt and monthly payment have been negotiated be~.~n Landlor~ and Tenant. Tenant shall ~ot be deemed in default of the Lease so lorg as such payments are made in a time/y martyr. So lor~3 as Te~ar~ is ~ot in default of any other payment under the L~se, Tenant may make such payment by ordlnarF business check, ~ in the same form (b) Tenant shall'pay to fan~lor~ all rent and other charges past due fr~ 4/1/91 th~h 6/30/91, without demand or notice in acco~gance with the pr~visions of the ~e and such payment shall be in the form of cash, certified or cashier,s ctaeck or money Order a~d such Paym~at shall be due Upon the date hereof. It has been agreed by the parties that the total s~ due and ~W~g to fandlor~ Under this Para~L~ph 5(b) is six thousand fifty-six dollars and ~7/100 ($$,0§6.67), calculated at the rate of two thousand~ eighteen dollars and 89/100 ($2,018.89) per month, for each of the months of April, May and June, 1991. 7his payment shall be in complete satisfaction of all of Tenant,s obligations to Landlord under the /ease for such period of time. l~re, in the event that Tenant does not oc~ly with the Pr~visions as stated in this Paragraph 5, this Exter~ion Agreement and A~-'Sment of Lease shall be null and void and Tenant shall r~maL~ L~ the ~e~ise~ premises as a "Tenant at Will" subject to the pr~visions as stated in Article XAS;II of the Lease. 6. ~he attached document dated June 18, 1991 and entitled "Camp }{ill ShopPing Center I~-ase Proposal,, (hereinafter called "I~-~Tse ~Luposal,,} is hereby incorporated into this ~t for informational Purposes. Subsections F,G,H,I and J of Section 201 of the ;~-se are hereby amerced, effective July 1, 1991, to contain precisely the same amounts ~~ as ar~ contained in the ~a_se Proposal. 7. Section 903(ii) of the ~e is hereby amended, effective Ju/y 1, 1991, to state that the initial HVAc charges to be paid by Tenant shall be as stated in the Lease Proposal. It is Understood by Landlo~ and Tenant that E~hibit "D" of the Lease will remain effective concerning adjustments during the term of the Lease in the HVAc charges which may be necessary and are justified Under the provisions of the ;-a~e. No increases in HVAC charges for any reason shall ever be ap~Dlied A'etroactively. 8. Section 903(vi) of the ;~ase is hereby amended, effective July 1, 1991, as follow~: T~e chaxges to be paid by Tenant for electricity supplied by landlord are not included in the minh~um annual rent specified in Paragraph 2 of this Agre~ent and in Section 201(d) of the Lease. D~ring the term of the Lease, Te_~a~t will pay charges for electricity /n the amounts show~ in the ~_~e ~al. It is intended by the pa~ties that t~ese ch~l~es shall be a f~ ~te t~ ~t~ eff~ive f~r ~ ~ti~ five (~} y~r ~ ~f ~e ~a~ ~ ~11 ' ~ ~J~ ~ ~j~nt ~1~ for ~ s~. ~o~ will ~ ~titl~ to ~ ~t's ~ for el~icity s~li~ if ~ ~ic ~ ~id ~ ~o~ to ~ ~lic utili~ s~ly~ el~icity ~o~ m ~. In ~ ~, ~11 ~ ~ ~ at g ra~ ~ ~ ~ a~l ~ of ~ ~ffer~ by ~o~. If ~o~ wi~ ~ ~ ~'s ~icity ~ for ~t ~1 ~ ~'s ~ligati~ ~ ~liv~ ~t~ to ~ ~ly ~tisf~o~ ~ ~ of ~e i~ in utility rates. ~is ~11 i~l~e utility ~ ~ ~;i~ ~ ~t~ ~id ~ ~o~ at ~ to ~ ~id ~ ~1o~ 'foll~,~ ~ ~ ~ ~ility. ~e ~ ~y~le ~ ~t for el~rici~ ~y also ~ i~ if ~ti~ of el~ricity ~terially ~t of el~rici~ ~ ~ ~t at ~ ~pti~ of ~ ~ te~ of ~e ~a~. ~t ~ if ~t i~ll~ ~itio~l ~t or ~ntially ~ f ~ at ~ l~s~ pr~. to ~ ~ el~ici~ ~ for ~is ~, it s~ll ~ ~o~'s ~ligati~ to ~liv~ ~i~ ~ ~t. ~ d~ti~ a~ ~ of ~te ~ter~ of ~e el~ri~l ~rfo~ at ~o~'s ~ ~ a ~le ~or at ~ ~l~t t~ for ~ri~ of a~r~ 1~. ~e ~ i~ ~ ~ s~ll ~e ~ ~ ~t's ~e. electricity charges for any reason shall ever be applied retroactively. 9. Section 2801 of the Lease is hereby amended, effective Ju/y 1, 1991, to provide a new notice address for Tenant, as follows: 200 Mountain Road I~=wisberry, PA 17339 10. EXcept as amended by this Agreement, all of the terms, conditi~s and stipulations c~Ffcaine~ in the I~ase shall continue ~n full foroe and- effect and are hereby ratified and republished. 11. This Ac/ree~ent shall be binding upon and inure to the benefit of the ~arties hereto and their r~spective heirs, executors, administrators, s~ocessors ~ a~igr~' 5 CAMP HILL SHOPPING CENTER INDEX LEASE AGREEMENT KRAVITZ PROPERTIES, INC., Agent for CAMP HILL SHOPPING CENTER ASSOCIATES TO CHARLES W. WILEY. JR. TRADING AS WILEY'S DELI ARTICLE l ARTICLE II ARTICLE III ARTICLE IV ARTICLE V ARTICLE VI ARTICLE VII ARTICLE VIII ARTICLE IX ARTICLE X ARTICLE XI .ARTICLE XII ARTICLE XIII ARTICLE XIV ARTICLE XV ARTICLE ARTICLE XVII ARTICLE XVIII ARTICLE ARTICLE XX ARTICLE XXI ARTICLE XXII ARTICLE XXIII ARTICLE XXIV ARTICLE XXV ARTICLE XXVI ARTICLE XXVII ARTICLE XXVIII ARTICLE XXIX ARTICLE XXX ARTICLE XXXI ARTICLE XXXII ARTICLE XXXIII ARTICLE XXXIV ARTICLE XXXV PARTIES DEFINED TERMS POSSESSION USE TERM RENT COMMON USE AREAS AND FACILITIES; COSTS; INSURANCE MERCHANTS' ASSOCIATION PUBLIC UTILITIES TAXES REPAIRS TENANT'S RIGHT TO MAKE ALTERATIONS AFFIRMATIVE COVENANTS OF TENANT NEGATIVE COVENANTS OF TENANT SIGNS RIGHTS OF LANDLORD DAMAGE TO PREMISES INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE WAIVER OF CLAIMS TRADE FIXTURES ASSIGNING, MORTGAGING, SUBLETTING SUBORDINATION OFFSET STATEMENT TRANSFER BY LANDLORD CONDEMNATION FINANCING STATEMENT SURRENDER AND HOLDING OVER NOTICES PERFORMANCE OF TENANT'S COVENANTS EVENTS OF DEFAULT RIGHTS OF LANDLORD UPON DEFAULT BY TENANT CUSTOM AND USAGE SUCCESSORS AND ASSIGNS; AGENT SCOPE AND INTERPRETATION OF THE AGREEMENT CAPTIONS SIGNATURES ,SUPPLEMENT I - CONFIRMATION OF TERM EXHIBIT A - DEMISING PLAN EXHIBIT B - WORK BY PARTIES EXHIBIT C - SIGN SPECIFICATIONS EXHIBIT D - CONDITIONED AIR CHARGE RATE ADJUSTMENT SCHEDULE EXHIBIT E - ELECTRICITY COMPONENT LEASE AGREEMENT ARTICLE PARTIES ERTIES, INC., a Pen'nsylvania corporation (hereinafter referred to as "Agent"), d~ agent for C;~ HILL SHOPPING CE~ER ASSf~IATES, a partnership (hereinafter referred to as 'Landlord-) and C~{RLEs INDIVIDUALLY MD T~ING AS {ILEY'S DELI U. WIl~y, JR. (hereinafter referred to as "Tenant"), whose address is 22 Big Ho~ Avenue, ~echanicsburg, Pa. 17055 and whose telephone number is ('717) 697-5444. WI T N E S S E TH: Landlord and Tenant Covenant and agree as follows: ARTICLE SECTION 201. DEFINED TERMs The following terms shall have the following meanings: A. Premises and Shopping Center: Tenant and Tenant leases from Landlord, for Landlord leases to the term and Upon the terms and conditions set forth in this Lease, the store premises situate and known as Building Section No. L Store No. 6 and being measured and described approxima[ely by the outside building lines, as follows: Front: 25 feet 0 inches Depth: 20 feet 0 inches Total Area: 500 Square feet located apProximately as Outlined Upon Exhibit 'A' attached hereto, the Same being a proposed site plan of a Shopping Center (the 'Shopping Center") erected or to be erected .upon the premises described thereon, tOgether with the right to the nOnexclusive Use, in Common with others, of all such automobile parking areas, driveways, footways and other facilities designed for common nsc, as may be installed by Landlord as hereinafter Provided, and of such Other and further facilities as may be provided or designated from time to time by Landlord for common Use, subject however to the terms and conditions of this Lease and to reasonable rules and regulations for the use thereof, as Prescribed from time to purpose of the dimensions set forth time by Landlord. The above and the plan attached hereto as Exhibit #A" is to show the aPProximate Size and location of the demised premises. All dimensions are approximate only. Landlord reserves the right to Change the size, layout and location of any buildings, improvements, or common areas and facilities shown on Exhibit 'A' as well as reduce or expand the size of the Shopping Center. B. Term: The term of this Lease shall be for five ( 5 ) years as further provided in Article V below. C. Permitted Use: The .sale, at retail of fast food delicate: type hot and cold sandwiches, salads, side dishes, beverages and desserts includi~ but not limited to those items listed fn Addendum To Article [[ C. on Page 2. as wel! as other deli-Iine items typically sold in a del£cat~ssen and for no Other purpose. D. Minimum Annual Rent: percent ( 6 %) of gross receipts, Years one (1) through five (5) $12.500.00 - '¥:a~c ~ .... 9h R , Years ~ Annual Percentage Rent: A sum equal to six In excess of $250,000.00. F. Security Deposit: $ NONE G. Initial Annual Common Area Maintenance Charge: $ 2,000.00 Initial Annual Merchants' Association Dues: $ 250.00 I. Initial Annual Real Estate Tax Charge: $ J. Initial Annual Insurance Charge: $ 125.00 K. Tenant Trade Name: Wiley's Deli L. Estimated Date of Delivery of Possession: July 1 , 19 85. ARTICLE III Section 301. POSSESSION Landlord warrants that it is the owner of a leasehold estate in and to the tract of land shown on Exhibit "A# and agrees that it will develop upon said tract commercial 'buildings with parking area and improvements generally in accordance with said Plan; and that, subject to any delays caused by strikes, weather conditions, governmental restrictions, scarcity of labor oc materials, or for other reasons beyond its control, it will proceed with due diligence to complete said project. Landlord has erected and installed or will erect and install the improvements upon the demised premises substantially as set forth upon Exhibit "E" attached hereto. Tenant shall fully comply with all of the terms, covenants and conditions of said Exhibit "B", whether or not Tenant is currently in possession of the demised premises pursuant to an existing lease. Section 302. Tenant shall have the option, if construction of the demised premises is not completed by the date which is sixty - 2 - ADDENDUM TO ARTICLE II C~ . C. Permitted Use: The sale, at retail of: Sandwiches - Hot Corned Beef Pastrami Roast Beef Combination Reuben Hot Dog Knockwurs~ Boclcwurst Kielbasa Sandwiches - Cold Turkey Breast Hickory Smoked Ham Liverwurst Tuna Salad Shrimp Salad Chicken Salad Chicken Liver Pate Egg Salad Salads Pasta Salad Antipasto Salad Fane? Salad Side Dishes French Fries Fried Ht~shroo~s Fried Onion Rings Cole Slaw Potato Salad Kosher Pickles Soda Coffee Juice Hilk Homemade Deli Cheesecake 2A (60) days after the Estimated Date of Delivery of Possession, as its sole remedy (Landlord not to be liable to Tenant or any other person, fi~m or corporation for any loss or damage resulting therefrom], of cancelling this Lease by giving written notice thereof to Landlord within fifteen (15} days after said date~ provided, that if sa~d failure to complete is caused by strikes, weather conditions, governmental restrictions, scarcity of labor or materials or other cause beyond Landlord's control, said completion date shall be extended for a period equal to the period of such delay. for any reas=n whatsoever the Landlord does not commence construction of the demised premises by September 1, 1984, the Landlord shall have the option without liability of cancelling this Lease by giving similar written notice to Tenant within fifteen (15) days after said date. Landlord shall not be obligated to proceed with the construction of the demised premises unless and until financing acceptable to Landl~-~d is obtained. Should such financing not be obtained on or before August 1, 1984, Landlord may so notify Tenant in writing, and cancel this Lease. If Landlord can obtain financing or satisfy the conditions of financing only upon the basis of modifications of the terms and provisions of this Lease, Landlord shall have the right to cancel this Lease if Tenant refuses to approve in writing any such modifications within thirty (30] days after Landlord's request therefor which request may not be made after delivery of possession. Tenant shall not unreasonably withhold its approval of the aforesaid modifications. Within ten (10) days of receipt of a request therefor from Landlord, Tenant agrees to forward 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. If the financial or credit rating of Tenant and/or, if applicable, Tenant's guarantor or surety is not acceptable fo~ the purposes of the aforesaid financing, Landlord shall have the right to cancel this Lease if Tenant refuses to execute or supply such additional assurances and/or guarantors or sureties as Landlord shall state as necessary for such acceptance within thirty (30) days after Landlord's request therefor which request may not be made after delivery of possession. If any such right to 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 ~nd neither pa~ty shall have any liability to the other by reason of such cancellation. Section 303. If Landlord is to perform any work in the demised pcemises pursuant to Exhibit 'B', completion of the demised premises shall be certified to Tenant in writing by Landlord's inspecting architect, and the delivery of such certificate o[ completion to Tenant shall constitute delivery of the demised premises hereunder. Tenant, its agents, servants and contractors, prior to the delivery of possession of the demised premises, shall have the right to enter upon the demised premises, for the purpose o~ taking measurements therein, but for no other purpose, provided, however, that such entry shall not interfere with or obstruct the progress of the work being done by Landlord. - 3 - Section 304. Upon receiving possession of the demised premises from Landio=d, Tenant ~haIl with due diIigence proceed to instaII such fixtures and equipment and to ~erform such o~her work as shaI1 be required pursuant to Exhibit 'B' or necessary or appropriate tn order to prepare the demised premises for the Opening of business. In the event that Tenant does not open the demised p£emises for the conduct of its business on or before the RentaI Commencement Date (as defined in Section below), LandIozd, in addition to aIi other remedies hereunder, shall have the option of (a) terminating this Lease by giving Tenant written notice of such termination, whereupon this Lease shall be terminated unIess by the date of the giving of said written notice, Tenant sh~ll have opened the demised premises for the Conduct of its business, or (b) of coIIecting from Tenant not only the minimum rent herein provided, but also additional rent at the rate of ten (10t) percent of the minimum monthly rental per day for each and every date from the Rental Commencement Date until the day Tenant commences to do business in the demised premises. Tenant ag£ees not to commence any work upon any portion of the demised premises until Landlord has approved Tenant's plans and specifications in writing and Tenant has otherwise complied with the requirements set forth in Exhibit "B'. Any changes in said plans or specifications must be similarly appcoved by Landlord. SECTION 305. Unless otherwise sooner terminated pursuant to its terms, any existing lease pursuant to which Tenant is the tenant for space in the Shopping Center shall terminate on Rental Commencement Date (as defined in Article V below}, with the same force and effect as if such date were set fort~ therein as the expiration date of said lease. ARTICLE IV USE SECTION 401. Tenant shall continually use and occupy the demised premises solely for the l?ermitted Use under the name or style of Tenant's Trade Name and for no other purpose. Tenant acknowledges that Landlord's obtaining a fair and equitable rental is dependent upon Tenant's concentrating all of /ts business efforts within the geographical area in which the Shopping Center is located upon Tenant's business at the demised premises so as to maximize Tenant's Gross Sales, and Tenant further acknowledges that any activity by Tenant within such geographical area in operating o~ participating in the operating of a similac or competing business must necessarily have an advecse effect on the volume of Gcoss Sales by Tenant at the demised premises to the detriment of Landlord an~ w~ll &ep=tve ~an~lo=d oE the latz rental to which the parties ag=ee~. Accordingly, in the event that during the term oE this ~ease either ~enant o: Tenant's management, o= any person o= entity cont=olle~ by Tenant o~ controlling ~enant, o= contzolle~ by the same person o= entity o= pc=sons o= enttt~es who control Tenant, di:ectly or indirectly owns, operates, is employed in, directs o~ serves any other place of business~ same, or similar to, or c~petftive with, Tenant's business as L exc~uding chose place of business 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 the Gross Sales of any such other place of business shall be included in the Gross Sales made from the demised premises to determine the Percentage Rent due under this Lease, as fully as though such Gross Sales had actually been made from the demised premises. In the event Landlord so elects, all of the provisions of Article VI hereof shall be applicable to the Gross Sales of, and all the books and records pertaining to, such competing store; provided, however, the foregoing geographic limitation shall not be applicable to any existing location of Tenant or any such other place of business which is Operated in a regional shopping center directly or indirectly OWned in whole or in part on the date hereof by Landlord oca principal of Landlord. ' S~C~ION 402. Tenant shall operate all of the demised premises during the entire term of this Lease with due diligence and efficiency so as to produce the maximum gross receipts which may be produced by such manner of operation, unless prevented from doing so by causes beyond Tenant's control. Subject to inability by reason of strikes or labor disputes or unavailability of goods or Other reasons beyond Tenant's control, Tenant shall carry at all times in the demised premises a stock of merchandise of such Size, character and quality as shall be reasonably designed to produce the maximum return to Landlord and Tenant. Tenant shall conduct its business in the demised premises during the regular customary days and hours for such business in the Shopping Center area and will keep Open for business from 9:30 A.M. until 9:30 P.M. every day (including, at Landlord's request, Sunday} and during the same days, nights and hours as the majority of the chain stores and department store or stores in the Shopping Center. ARTICLE V SECTION 501. TERt, t The term of this Lease shall commence on the date when Landlord shall deliver pOssession of the demised premises to Tenant, as provided in Article III hereof, and shall end (unless sooner terminated as hereinafter provided) at Midnight on the date of the expiration of the full Term from the first day of the calendar month nest succeeding the 'Rental Commencement Date', as defined in Article VI hereof, without the necessity of any notice from either party to the other to terminate the same, and Tenant hereby waives notice to vacate the'premises and agrees that Landlord shall be entitled to the benefit of all provisions of law Eespecting summary recovery of possession from a tenant holding over to the same extent as if statutory notice had been given. Tenant's obligations with respect to accrued minimum, percentage or additional rent shall survive the expiration or earlier termination of this Lease. If requested by Landlord, Tenant hereto agrees to execute, within thirty {30) days after the Rental Commencement Date, a supplement to this Lease, in the form attached hereto as Supplement 1, confirming the Commencement Date, the Rental Commencement Date and expiration date and stating that this Lease is in full force and effect. Entry upon the demised - 5 - premises by ?enant prior to the Rental Commencement Date shall be subject to all of the terms, covenants and conditions of this Lease except for minimum and percentage rent, Tenant's share of real estate taxes, common area costs, insurance charges and Merchants' Association dues. ARTICLE VI SECTION 601. RENT Tenant shall pay to Lan61ord the minimum annual rent in the sums set forth in Section 201D, payable in advance in equal monthly installments on the first day of each calendar month during the term hereof, witho0t prior Oemano therefor. Such minimum rent shall commence ~ either (ii on the date when Tenant shall open the demised premises for business, cc (ii) on the date which is ninety (90) days after the Landlord has delivered possession o~ said premises to the Tena e h ?ver date ,s ear?r, said date be,ng herein Se- pa some £erred to as the Rental Commencement Date first full month's minimum rent and added charges (as defined in Section 3102 below) shall be paid upon~c~cT.3t!~- ~r ~:~0. The next rental payl~ent date hereunder shall be the first day of the first calendar month following the Rental Coa~nencement Date and shall include the pro-rated amount of rent and added charges applicable to the period from the Rental Commencement Date to such rental payment date. SECTION 602. ~date on which Tenant opens the demised for business For each lease year or portion thereof during the term hereof, Tenant shall pay, in addition to minimum rent, percentage rent as set forth in Section 201E. Anything herein to the contrary notwithstanding, there shall be no abatement, apportionment or suspension of the percentage rent payable hereunder. SECT/ON 603. · The first lease year shall begin on the Rental Commencement Date and shall extend for one (1) full calendar year. Thereafter each lease year Shall coaunence on the day following the expiration of the preceding lease year and shall end at the expiration of twelve (12) calendar months thereafter. SECTION 604. Within ten (10) days after the end of each calendar month during the term of this Lease, Tenant shall submit to Landlosd an accurate, unaudited, written statement signed by Tenant on its behalf by a duly authorized officer or representative, showing the full amount of Tenant's gross receipts in the demised premises during the preceding calendar month. With each quarterly statement, Tenant shall pay to Landlord the percentage.rent, if any, accrued and payable with respect to the preceding quarterly period. SECTION 605. Within forty-five (45) days after the end of each lease year, commencing with the first lease year, Tenant shall submit to Landlord a complete statement certified by an f~-c-:a_:~_J ~" ~ o~rt;~-4 ~"~-- accountant or certified by Tenant or on its behal~ by a duly authorimed officer or reptesentative, showing accurately and in such detail as reasonably required by handlord the full amount of Tenant's gross receipts in the demised premises during the immediately preceding lease year. At the same time Tenant shall pay to Landlord the full balance of percentage rent payable for said lease year, if any. Any excess of percentage rentals that Tenant may have [~aid for such lease year shall be refunded promptly by Landlord to Tenant. SECTION 606. The term *gross receipts' as used herein is hereby defined td mean gross receipts of Tenant and of all licensees, concessionaires and tenants of Tenant, from all business conducted upon or from the demised premises, whether such receipts be obtained at the demised premises or elsewhere, an~ whether such business be conducted by Tenant or by any licensees, concessionaires or tenants of Tenant, and whether such receipts be evidenced by check, credit, charge account, exchange or otherwise, and shall include, but not be limited to, the amounts received from the sale of goods, wares and merchandise (including commissions on lottery sales, if any] and loc services rendered, together with the amount of all o~ders taken, received or filled at the demised premises, whether such orders be filled from the demised premises or elsewhere. If any one or more departments or othe~ divisions of Tenant's business shall be sublet by Tenant or conducted by any person, firm or corporation other than Tenant, there shall be included in gross receipts for the purpose of fixing the percentage rent payable hereunder all the gross receipts of such departments or divisions, whether such receipts be obtained at the demised premises or elsewhere, in the same manner and with the same effect as if the business or sales of such departments and divisions of Tenant's business had been conducted by Tenant itself. Gross receipts shall not include sales or merchandise for which cash has been refunded, or allowances made on merchandise claimed to be 6elective or unsatisfactory, provided they shall have been previously included in gross receipts~ and there shall be deducted from gross receipts the sales price of merchandise returned by customers for exchange, provided that the sales price of the ~erchandise delivered to the customer in exchange shall be included in gross receipts. Gross receipts shall not include the amount of any sales or use tax levied directly on sales and collected from customers and paid by Tenant, provided that specific record is made at the time of each sale of the amount of such sales or use tax and the amount thereof is separately char~ed to the customer. No franchise or capital stock tax and no income or similar tax based upon income or profits as such and no gross receipts tax shall be deducted from gross receipts. SECTION 607. The business of Tenant and of any sub-lessee, licensee or concessionaire upon the demised premises shall be operated so that a duplicate sales slip, invoice or cash register receipt, serially numbered, shall be issued with each sale or transaction, whether for cash, credit or exchange or Tenant will use such other system for accurately reporting gross receipts as shall be approved by Landlord. Tenant shall keep at all times during the term hereof, at the demised premises or at the general office of the tenant, full complete and accurate - 7 - books of account and records in accordance with accepte~ accounting practices with respect to all operations of the business to be conducted in or from the demised premises including the recordin9 Of gross receipts and the receipt of all merchandise into and the delivery of all merchandise from the demised premises during the term hereof, and shall retain such books and records, as well as all contracts, vouchers, checks, inventory records, and other documents and papers in any way relatin9 to the operation of such business, for at least two {2) years from the end of the lease year to which they are applicable, or, if any audit is required or a controversy should arise between the parties hereto regarding the rent payable hereunder, until such audit or controversy is terminated. Such books and records shall at all reasonable times during the retention period above referred to be open to the inspection of Landlord or its duly authorized representatives, who shall have full and free access to the same and the right to require o£ Tenant, its agents and employees, such information or explanation with respect to the same as may be necessary for a proper examination thereof. SECTION 608. If it is determined that the actual gross receipts for any period covered by the statement required pursuant to Section 605 of this Article VI shall exceed the amount thereof shown in said statement by three percent (3%) or more, Tenant shall paylall the expenses incurred by Landlord in determining the actual gross receipts for said period. within 20 days after receipt of bill therefor SECTION 609. Tenant shall, without prior notice dC demand and without any setoff or deduction whatsoever, pay all rentals and other charges and render all statements herein prescribed at the office of Agent, 1700 Market Street, Philadelphia, Pennsylvania or to such other person or ~or~oration, and at such other place, as shall be designated by Landlord in writing at least ten (10) days prior to the next ensuing rental payment date. If Landlord shall pay any monies, or incur any expenses in correction of any violation of any covenant of Tenant herein set forth, the amounts so paid or incurred shall, at Landlord's option and on notice to Tenant, be considered additional rentals payable by Tenant with the first installment of rental thereafter to become due and payable, and Lay be collected or enforced as by lhw provided with respect to rentals. Tenant covenants and agrees that all sums to be paid under this Lease, if not paid within five (5) days after due, shall bear interest on the unpaid portion thereof at the rate of fou£teen (14%) percent per annum from the date when due but not in excess of the highest legal rates. In addition, if Tenant fails to pay any sum to be paid by Tenant hereunder, Landlord may impose a late charge in the amount of ten (10%) percent of the sum due. sums of money payable by Tenant un~.~l~'~/s Lease, and for the faithful performance Of~d-~g~ggmg~s of ~.ren ..... error, provided Tenant shall have made all such -- R may, at Landlogd's sole option, be applied on ac~'-u~~h default, and thereafter Tenant shall promptly_./.~ the resulting deficiency in said deposit. T~.eJa~fft--he~eby waives the benefit of any provision of law_ ~e_..~g ~epo~'t to be ~eld in escr~ oz in trust~posit shal~ be deemed to der°sited he~~~c~s~f Landlord's be d'. v~ed f~om any further liability with respect to such ARTICLE VII COMMON USE AREAS AND FACILITIES; COSTS: INSURANCE SECTION 701. All facilities furnished by Landlora in Shopping Center and designated for thegeneral use, in common, of occupants of the Shopping Center, including Tenant hereunder, their officers, agents, employees and customers, including, but not limited to, parking areas, streets, sidewalks, canopies, roadways, loading platforms, washrooms, shelters, ramps, landscaped areas and other similar facilities, shall at all times be subject to the exclusive control and management of Landlord, and Landlord shall have the right from time to time to change the area, level, location and arrangement of such parking areas and other facilities above referred to; ano to make all rules and regulations pertaining to and necessary for the proper operation and maintenance of the common facilities. Tenant hereunder and any other sub-tenants and licensees shall comply with all rules and regulations made by Landlo£d pertaining to the operation and maintenance of said common areas and facilities, including, but not limited to, such reasonable requirements pertaining to sanitation; handling of trash and debris; loading and unloading of trucks and other vehicles; and safety and security against fires, theft, vandalism, ~ersonal injury and other hazards. The parking area shall be limited to parking for customers of Tenants of the Shopping Center and Tenant and its employees may not park in any portion of the parking area, except that portion thereof designated or which may hereafter be designated as 'Employees Parking Area.' Landlord (subject to reimbursement as set forth below] will operate and maintain or cause to be operated an~ maintained the Common Areas and facilities of the Shopping Center. SECTION 702, For each year of the term hereof, Tenant shall pay to Landlord, as additional rent, Tenant's proportionate share of all costs of operation of the Shopping Center and maintenance of the common areas and facilities of the Shopping Center (including the enclosed mall) of which the demised premises are a part. As and for Tenant's proportionate share, Tenant shall pay to Landlord the initial annual common area maintenance charge as set forth in Section 201G {subject to adjustment as set forth below}, payable as additional rent in equal monthly installments at the same times as fixed minimum rent is payable hereunder, without demand and without any deduction o£ setof[ whatsoever. If Tenant's proportionate share of the actual cost of Operation of the Shopping Center and maintenance of the - 9 - common areas facilities for any fiscal year of Landlord exceeds the common area maintenance charges actually paid by Tenant for such period, within ninety (90) days after the end of Landlord's fiscal year, Landlord will deliver to Tenant a statement showing in reasonable detail Tenant's proportionate share of such actual cost and, within twenty (20) days after delivery of such statement, ?chant will pay such excess shown to be due by said statement, as additional rent. Tenant's p£oportionate share of the actual costs of operation of the Shopping Center and maintenance o6 the common areas and facilities shall be in the s~me proportion to the total costs of such operations and maintinance as the total gross rentable area of the demised premises bears to the total g~oss number of rentable square feet of ground floor leaseable area contained within all mall stores (excluding Department Sto~es, the supermarket and stores not attached to the mall, collectively referred to as 'Separate Stores"). The statement submitted by Landlord shall be sufficient evidence of the actual costs of the aforesaid operation and maintenance. The aforesaid costs of operation and maintenance shall include all expenditures incurred by or on behalf of Landlord in operating the Shopping Center and maintaining the common areas and facilities, including, without limitation, the cost of cleaning, heating, ventilating and air-conditioning the enclosed mall; the cost of all of Landlord's insurance relating to the Shopping Center and the common areas and facilities (including, but not limitet to, botily injury, public liability, property tamage liability, automobile insurance, sign insu£ance, and any other insurance carried by Landlord for the Shopping Center anti the common areas and facilities in limits reasonably selected by Landlord, but excluding insurance described in Section 703 below); gardening and landscaping; assessments; repairs, £epaving, replacements, preventive maintenance, repainting, including restriping of parking lot and accessways; rental of signs and equipmentI lighting; sanitary control~ removal of snow, trash, rubbish, garbage and other refuse) depreciation over a period not exceeding sixty (60) months of machinery, equipment and other assets used in the operation and maintenance of the Shopping Centeri ~epair and/or replacement of on-site water lines, sanitary sewer lines, storm water lines and electrical lines and equipment serving the property~ the cost of police, security and traffic control services; the cost of all personnel required to supervise, implement and accomplish all of the foregoing; and an administrative charge equal to fifteen (15%) percent of said costs. Contributions towards such costs by Separate Stores shall be deducted. At anytime or times that Landlord determines that Tenant's share of actual costs will exceed the monthly installments then due from Tenant hereunder, Landlord may adjust the amount of the monthly installments thereafter due from Tenant on account of its proportionate sha~e of the costs of operation of the Shopping Center and maintenance of the common areas an~ facilities by increasing such installments by an amount equal to one-twelfth (1/12th) of the excess, if any, of Tenant's estimated share of such costs over the annual coat, on area maintenance cha~ge then due hereunder. SECTION 703. For each year of the term hereof, Tenant shall pay to Landlord, as additional rent, Tenantms proportionate share of all premium costs for fire and broad form all risks extended coverage insurance and rent insurance respecting all buildings - 10 - and improvements upon the Shopping Center. As and for Tenant's proportionate share, Tenant shall pay to Landlord the initial annual insurance charge as set forth in Section 201J (subject to adjustment as set forth below) payable as additional rent in equal monthly installments at the same times as fixed minimum rent is payable hereunder, without demand and without any deduction or setoff whatsoever. If Tenant's proportionate share of the actual cost of such insurance for any insurance year of Landlord exceeds said annual insurance charge actually paid by Tenant fcc such period, within ninety {90) days after the end of Landlord's insurance year, Landlord will deliver to Tenant a statement showing in reasonable detail Tenant's proportionate share of such actual insurance costs and, within twenty (20) days after delivery of such statement, Tenant will pay such excess shown to be due by said statement, as addtional rent (subject to adjustment as set forth below). Tenant's proportionate share shall be the same as set forth in Section 702 with respect to common area maintenance charges. The first insurance year shall be the period covered by annual insurance premiums. The statement submitted by Landlord shall be sufficient evidence of the actual insurance costs. At anytime or times that Landlord determines that Tenant's share of actual costs will exceed the monthly installments then due from Tenant hereunder, Landlord may adjust the amount of the monthly installments thereafter due from Tenant on account of its proportionate share of the costs of insurance by increasing such installments by an amount equal to one-twelfth (1/12th) of the excess, if any, of Tenant's estimated share of such costs over the annual insurance charge then due hereunder. SECTION 704.. Sums due pursuant to Section 702 ano Section 703 shall be appropriately adjusted for any partial years at the beginning or end of the term hereof. ARTICLE VIII SECTION 801. MERCHANT'S ASSOCIATION Tenant shall join and maintain membership in an Association authorized and recognized by Landlord and established by the Tenants in the Shopping Center. Tenant shall pay to the Association each lease year such reasonable assessments as may be fixed from time to time by the Association for creating and maintaining a fund to be used by the Association for general promotional, advertising and welfare purposest including any assessments or dues fOE advertising, publicity and general public relations, provided the cost to Tenant for the first year shall be as set forth in Section 201Bo Tenant will comply with such bylaws, rules and regulations as may be adopted from time to time by said Association and take such action as shall from time to time be necessary to remain in good Standing in the Association. Tenant agrees to use the name of the Shopping Center prominently in all of its advertising and promotional literature regarding the demised premises. SECTION 802. Tenant agrees that the bylaws of the Association shall provide= {i) each member which is present at a meeting and not - 11- delinquent in any of its payments to the Association shall have one vote for each Square foot of floor area in its demised premises, (ii) each delinquent member shall be liable to the Association for its costs (including attorney's fees) incurrea in collecting such member's delinquent debts to the Association, (iii) Landlord shall have a number of votes equal to the lesser or twenty-five percent (25%) of the total of all votes in the Association including the votes of Landlord or the percentage which Landlord's contribution to the Association for the association year bears to the total amount of all dues payable to the Association for such association year (iv} the Landlord, as agent for the Association, may, at its option, collect all assessments due including delinquent assessments or designate another party to collect such assessments, (v) Landlord may, at its option, elect to p~ov£de the Association with the services of a promotion director and all staff deemed necessary by Landlord to effectively ca£ry out the promotion and public relations objectives of'the Association and/or such reasonable space within the Shopping Center as may be necessary to carry out the functions of the promotion director and his or bec stall and the Association shall reimburse Landlord for such, and (vi) Landlord cay provide that the occupant of any department store and/or Supermarket shall have a seat on the Board of Directors. Furthermore, no bylaw, rule or regulation of the Association shall conflict with the provisions or this Lease, and more particularly with any rules and regulations adopted by Landlord o£ in any respect diminish the rights of Landlord hereunder. · SECTION 803. In addition, Tenant shall pay to the Merchants' Assoc£ation, as additional rent, the sum of twenty-five cents per rentable square foot of total area leased by Tenant upon receipt of notice from Landlord that the demised premises are ready for occupancy as Tenant's share of the cost of the 'Grand Opening' of the Shopping Center, said payment to be due even if Tenant is not open for business for the "Grand Opening' so long as Tenant is required to open for business hereunder within one (1) year after the said 'Grand Opening.' ARTICLE IX SECTION 901. PUBLIC UTILITIES In addition to all rentals herein specified, Tenant shall be responsible for and shall pay for all utilities, used or consumed in or upon the demised premises, and all water charges, as and when the charges therefor shall become due and payable, commencing on the date Landlord notifies Tenant that the demised premises are ready for occupancy. ~nless supplied by Landlord, Tenant shall promptly make all appropriate applications to the local utility companies and pay all required deposits, connection fees and charges for meters and service for all utilities. SECTION 902. In the event any utility or utility Services are furnished to Tenant for which a lien could be filed against the demised premises or any portion thereof (such as water rent or sewage disposal), the Tenant shall at'Landlord's request, pay the cost thereof to Landlord as and when the charges therefor become due and payable; otherwise, Tenant shall deliver original receipted bills therefor to Landlord within thirty (30) days after the same are due and payable without interest or penalty. SECTION 903. (i) In the event Landlord shall elect or be required to furnish any utility services to Tenant (other than electricity and Conditioned Air as described below), Tenant hereby agrees to purchase and pay for the same from Landlord, provided Landlord shall charge therefor not more than the same consumer rate as is charged by the public service corporation or municipal authority, as the case may be, supplying similar usage and'services to a retail customer in the general area in which the demised premises are situated. (ii) Tenant agrees to purchase from Landlord and pay for Conditioned Air to be used by Tenant for heating and air conditioning the demised premises, as additional rent, upon presentation of bills therefor, at the rates set forth in and subject to adjustments in accordance with Landlord's Conditioned Air Charge Rate Adjustment Schedule attached hereto as Exhibit "D." (iii) Landlord will initially purchase water from the Riverton Water Company via at least four (4) metered services at four (4) meter room locations. Each domestic water meter will service a grouping of mall stores. A 3/4# capped valve outlet will be provided for each Tenant. If Tenant requires greater than a 3/4" water service, Landlord will furnish and install the required water piping and modification, at Tenant's expense. At Landlord's option, Tenant will install a water meter with remote reaoer. Landlord will only require meterin9 of large water use tenants such as beauty parlors, restaurants, etc. Normally, small retail stores with only toilet rooms will not be required to be metered. Landlord will divide its total water cost by gallons supplied to obtain the average water cost per gallon. Landlord will charge metered Tenants for water usage based on the average cost per gallon multiplied by metered gallons consumed. Landlord will then deduct from the total water cost, the amount billed to metered Tenants and the balance of the water costs shall be apportioned on a gross leasable area basis among the unmetered Tenants. (iv) There is currently no sewer rent aside from real estate taxes. In the event the local authority, municipality, utility o£ other body collects for the sewerage or sanitary Service, Tenant covenants and agrees to pay the 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 or maintenance of any sewerage connection or system. (v) Landlord may, after thirty (30) days' notice to Tenant, cease to furnish any one or more of the utility services to the p:emises, without any responsibility to Tenant, except to connect Tenant's distribution facilities therefor with another source for the utility service so discontinued. (Vi) It is intended that the cost of electricity be included in the minimum annual rent. Since the characteristics of Tenant's electrical equipment and fixtures are not known at the time of the execution of this lease, Landlord and Tenant are not able to agree upon the sum to be included in the minimum rent for electricity (said sum being hereinafter called the ~Electricity Component-). For that reason, the minimum annual rent set forth in this lease does not' include the Electricity Component. At such time as the Electricity Component shall be determined in accordance with Exhibit *E= of this lease, the minimum annual rent shall be adjusted to include the Electricity Component. SECTION 904. 'Landlord shall not be liable to Tenant for any damages should the furnishing of any utilities by Landlord be interrupted, curtailed or required to be terminated because of necessary repairs or improvements or any cause beyond the zeasonable control of Landlord. Any interruption, curtailment or cessation of utilities or service shall not relieve Tenant from the performance of any of Tenant's covenants, conditions and agreements under this Lease. ARTICLE X SECTION 1001. TAXES Tenant shall pay to Landlord each fiscal year or years of the taxing authorities during the term hereof (appropriately apportioned for any partial year at the beginning or end of the term hereof) on demand, as additional rent, =Tenant's share of real estate taxes', as hereinafter described, based upon the fiscal years of the taxing authorities. SECTION 1002. Tenant's share of real estate taxes for any such fiscal year shall be an amount equal to the product obtained by multiplying the number of gross rentable square feet of ground floor area leased by Tenant by the 'current tax per square foot' in such fiscal year. The current tax per square foot shall be computed by dividing the amount of the total real estate taxes and assessments levied on the Shopping Center by the total gross number of square feet of rentable ground floor area in the Shopping Center or portion thereof reflected in such assessment. SECTION 1003. Tenant shall be responsible for .and shall pay before delinquency all taxes assessed against any leasehold interest or personal property of any kind Owned Or placed in, upon or about the demised premises by the Tenant. SECTION 1004. If at any time during the term of this Lease the methods of taxation prevailing at the commencement of the term hereof shall be altered so that in lieu of or as supplement to or a substitute for the whole or any part of the real estate taxes or assessments now levied, assessed or imposed on the Shopping Center, there shall be levied, assessed, or imposed (i) a tax, assessment, levy, imposition or charge, wholly or partially as a capital levy or otherwise, on the rents received therefrom, or (ii) a tax, assessment, levy (including, but not limited to, any municipal, state or federal levy], imposition or charge measured by or based in whole or in part u~on the Shopping Center and imposed upon the Landlord, or (iii) a * license fee measured by the rent payable under this Lease, then all such taxes, assessments, levies, impositions and charges, or the part thereof so measured or based, shall be deemed to be included in the general real estate taxes and assessments payable by the Tenant pursuant to Section 1001 above to the extent that such taxes, assessments, levies, impositions and charges would be payable if the Shopping Center were the only property of the Landlord subject thereto, and the Tenant shall pay and discharge the same as herein provided in respect to the payment of general real estate taxes and assessments. Real estate taxes shall include all taxes attributable to improvements now or hereafter made to the Center or any part thereof or the present or future installation of fixtures, machinery or equipment thereon or therein, all real estate taxes, assessments, water and sewer rents (not based on consumption) and other impositions and charges of every kind and nature whatsoever, nonrecurring as well as recurring, special or extraordinary, ordinary, foreseen and unforseen and all installments thereof leviedt assessed or imposed or due aha payable are liens upon or arising in connection with the use, occupancy or possession of, or any interest in, the Center or any part thereof, or any land, building or other improvements therein. SECTION ~005. AS and for Tenant's proportionate share of real estate taxes, Tenant shall pay to Landlord the initial annual real estate tax charge as set forth in Section 201I, payable as additional rent in equal monthly installments at the same times as fixed minimum rent is payable hereunder, without demand and without any deduction or setoff whatsoever. If Tenant's proportionate share of the actual real estate taxes and assessments for any fiscal year exceeds said real estate tax charge actually paid by Tenant for such period, Landlord will deliver to Tenant a statement showing in reasonable detail Tenant's proportionate share of such actual real estate taxes and assessments and, within twenty (20) days after delivery of such statement, Tenant will pay such excess shown to be due by said statement as additional rent. The official tax bill and the statement submitted by Landlord shall be sufficient evidence of the actual real estate taxes and assessments. If at any time or times Landlord receives notice of an increase in the assessment or tax rate, Landlord may adjust the amount of the monthly installments thereafter due from Tenant an account of its proportionate share of real estate taxes and assessments by increasing such installments by an amount equal to one-twelfth (1/12th} of the excess, if .any, of Tenant's estimated share of such real estate taxes and assessments over the r~al estate tax charge then due from. Tenant hereunder. - 15 -- ARTICL~ X~ REPAIRS S£C~ION 1101. Landlord will keep the roof and the exterior walls of the demised premises, in proper repair, excepting any work done by Tenantr any glass, doors, door closers or frames, and excepting any work done by Tenant and work required by reason of Tenant's negligence or misuse of the demised premises, provided that in each case Tenant shall have given Landlord pr/or written notice of the necessity of such repairs. The repair or replacement of work done by Tenant, glass, doors, door closers and frames and damage caused by Tenant's negligence or misuse of the demised premises shall be the responsibility of and shall be done by the Tenant. Tenant will also make all necessary repairs and replacements in order to keep the interior of the demised premises, together with all electrical, plumbing, heating, air-conditioning and other mechanical installations therein, all doors, door closers and frames, all plate glass and door and window glass frames and all fixtures, equipment and stock, clean and in good order and proper repair (including periodic painting) at its own expense, using materials and labor of kind and quality equal to the original work, and will surrender the demised premises at the expiration or earlier termination of this Lease in as good condition as when received, excepting only deterioration caused by ordinary wear and tear and damage by accidental fire or other casualty of the kind insured against in standard policies of fire insurance with extended coverage not caused by Tenant, its agents, employees and invitees. Except as hereinabove provided, Landlord shall have no obligation to repair, replace, maintain, alter or lac~ify the demised premises or any part thereof, or any plumbing, heating, electrical, air-conditioning or other mechanical installation or equipment therein and the same shall be the responsibility of the Tenant. Under no circumstances shall Landlord be obligated to repair, replace or maintain any plate glass or door or window glass, frames or door covers and Tenant shall at all times carry in a reputable company, full coverage insurance on all plate glass in the demised premises and shall cause prompt £eplacement if chipped, cracked or broken, said policy of a certificate thereof shall be deposited with Landlord and shall provide that it shall not be cancelled or modified for any reason without at least twenty (20) days prior notice thereof to Landlord. Anything herein to the contrary notwithstanding, any work or alteration made bY tenant to the roof, exterior walls or affecting the structural integrity of the building of which the demised premises are a part (even if with Landlord's consent) shall release and discharge the Landlord of and from any duty Landlord may have to keep and maintain]~ in good order and Eepair~ and Tenant agrees to be solely responsible foe and thereafter to £epair and to maintain the roof, exterior walls and the structural integrity of the building to or on which Tenant has caused any work to be done or alteration made. No holes are to be cut through the roof without Landlord's prior written consent. In the event any holes are required to be cut in the roof, Tenant will engage Landlord's roofing contractor or any roofer approved by Landlord's bonding company, to flash and patch such holes so as to maintain the validity of Landlord's roof bond and responsibility thereunder. such work or alteration ARTICLE TENANT'S RIGHT TO MAKE ALTERATIONS SECTION 1201. Tenant shall not make any alterations, improvements or additions to the demised premises during the term of this Lease or any extension or renewal thereof without first obtaining the written consent of Landlord. Tenant shall not cut or drill into, or secure any fixture, apparatus or equipment of any kind to any part of the demised premises without first obtaining the written consent of Landlord. Ail alterations, improvements and additions made by Tenant as aforesaid shall remain upon the premises at the expiration or earlier termination of this Lease and shall become the property of Landlord, unless La,dlord shall, prior to the expiration or termination of this Lease, have given written notice to Tenant to remove the same, in which event Tenant shall remove such alterations, improvements and additions and restore the premises to the same good order and condition in which it was at the commencement of this ~.-~ [ Should Tenant fail So'to do, Landlord may do so, ~ collecting, at Landlord's option, the cost and expense thereof ]from the Tenant as additional rent. ·--ordinary wear and tear excepted. SECTION 1202. Tenant shall at all times maintain fire insurance with broad form all risks extended coverage endorsement insuring the interest of Landlord, Agent and of Tenant in companies acceptable to Landlord at all times and in an amount acceptable to Landlord at all times as adequate to cover the full costs of replacement of all such alterations, additions, improvements or changes in the event of fire or extended coverage loss. Tenant shall deliver to the Landlord certificates of such fire insurance coverage, and such policy shall contain a clause requiring the insurer to give the Landlord twenty (20) days' prior notice of cancellation. Tenant shall deliver to Landlord new or renewal insurance certificates twenty (20) days prior to termination or cancellation of the prior policy. ARTICLE XII! AFFIR~dATIVE COVENANTS OF TENANT SECTION 1301. Tenant shall: (i} Comply with any and all current or future requirements of any of the constituted public authorities, and with the terms of any State or Federal statute or local ordinance or regulation applicable to Tenant or its use or occupancy of the demised premises, and save Landlord harmless from penalties, fines, costs, expenses or damages resulting from failure to do so; (ii) Give to Landlord prompt written notice of any accident, fire or damage occuring on or to the demised premises; (iii) Load and unload goods at such times in the areas and through such entrance as may be designated for such purposes by Landlord. Such trailers or trucks shall not be permitted to remain parked, overnight, in any area of Shopping Center, whether loaded or unloaded; - 17 - (iv) See that there are no undue accumulations of 9arbage and refuse~ keep the same in proper containers on the interior of the demised premises, until called fo[ collection; £emove the Same at Tenant's expense; all in accordance with m~nicipal regulations; (v) Operate heatin9 and coolin9 equipment to maintain store temperature between 68°F and 74°F in the winter months and between 720F and 78°F in the summer months, subject to contrary 9overnmental regulations; (vl) Keep the mall areas i~u~ediately adjoinin9 the demised premises clean =~ ~r== ~ge~ =~c~ ~=~ ~=~ and not to place o£ permit any rUbblsh, obstructions oc mecchandise in such areas; (vi~) Keep the demised premises (includin9 all exterior surfaces and both sides of all 91ass) clean, orderly, sanitary and free from objectionable odors and from insects, vermin and other pests; {viii) Require Tenant's employees to park their cars only in those portions of the parkin9 area designated for the purpose by Landlord; (ix) Keep its display windows, includin9 window or shadow boxes, in the demised premises, dressed and illuminated and its signs and external lights well lighted every day from sundown until 10:00 P.M.~ geplace promptly at Tenant's expense with 91ass of kind and quality equal to the original any plate 91ass or window og door 91ass in the demised premises which may become cracked or b£oken~ (x) Conduct its business in the premises in all respects in a dignified manner and in accordance with high Standards of store operation~ (xi) Comply with all reasonable rules and regulations of Landlord in effect at the time of the execution of this Lease or at any time or times, and from time to time, promulgated by Landlord, which Landlord in its sole discretion shall deem necessary in connection with the demised premises, the building of which demised presises are a part, or the Shopping Center, includin~ the installation of such fire extinguishers, water buckets and other safety equipment as Landlord may reasonably require; and (xii) In the event any labor, materials or equipment are furnished to Tenant on the demised premises with respect to which any mechanic's o~ material~an,s l~en ~i~ht be filed against the demised premises, o~ against Landlord's interest therein, take app£opriate action prior to the furnishin9 thereof to assure that no such lien will be iilei; and pay, when due, all su~s of ~oney that may become due for any such labor, ~aterials or equipment and to cause any such lien to be fully discharged and released p=o~ptl[ upon receivin~ notice thereof; and shall inde~nii¥ and save Landlord harmless f£om any cost, loss o£ expense, includin9 reasonable attorney's fees, ~esultin9 from the [ilin9 of such'lien or incurred by Landlord in dischargin9 the sa~e should Tenant fail to do so promptly. Nothin9 in this ~ease is intended to authorize Tenant to do so or cause any work or labor to be done, or any mate£ials to be supplied for the account or benefit of Landlord, all o[ the same to be solely for Tenant,s account benefit and at Tenant,s sole risk and expense. - 18 - ARTICLE XIV NEGATIVE COVENANTS OF TENANT SECTION 1401. Tenant shall not do any of the following without the prior consent in writing of Landlord: (i) Use or operate any machinery that, in Landlord's opinion, is harmful to the buildin9 or disturbing to other tenants in the building of which the demised premises is a part, nor shall Tenant use any loud speakers, televisions, phonographs, radios or other devices in a manner so as to be heard or seen outside of the demised premises, nor display merchandise on the exterior Of the demised premises either for sale or for promptional purposes~ (ii) Do or suffer to be done, any act, matter or thing objectionable to the fire insurance companies whereby the fire insurance or any other insurance now in force or hereafter to be placed on the demised premises or any part thereof, or on the building of which the demised premises may be a part, shall become void or suspended, or whereby the same shall be rated as a more hazardous risk than at the date when Tenant receives possession hereunder. In case of a breach of this covenant, in addition to all Other remedies of Landlord hereunder, Tenant agrees to pay to Landlord as additional rent any and all increase or increases of premiums on insurance carried by Landlord on the demised premises, the Shopping Center or any part thereof, caused in any way by the occupancy of Tenant~ (iii) Attach any awning, antenna or other projection to the roof' or the outside walls of the demised premises or the building of which the demised premises are a part; (iv) Conduct any auction, fire, bankruptcy, or selling-out sale on or about the demised premises; (v) Se open for business on any Sunday unless the Mall is opened and operated by Landlord~ (vi) If Tenant is a corporation, merge with another entity or liquidate or dissolve~ nor shall control of said corporation change or be affected by the transfer of stock except by reason of death of a Shareholder~ (vii) Execute or deliver any security interest in any trade fixtures or other property placed upon the demised premises at any time;l (viii) Solicit business or distribute any handbills or other advertising matter in the common areas of the Shopping Center~ Name. (ix) Operate under any name other than Tenant's Trade provided, however, that Landlord hereby agrees, upon written request of Tenant to subordinate Landlord's lien in Tenant's trade fixtures to perfected securit interests of third parties therein. - 19 - ARTICLE XV SECTION 1501. Tenant shall not place, alter, exhibit, inscribe, paint or affix any sign, awning, canopy, advertisement, notice or other lettering on any part of the outside of the demised premises or of the building of which'the demised premises is a part, or inside the demised premises if visible from the outside, nor paint any brick or stonework, cornice work, mill work or iron work, without first obtaining Landlord's written approval thereof; and Tenant further agrees to maintain such sign, awning, canopy, lettering, etc., as may be approved in good condition and repair at all times, and repair all damage to the demised premises that is caused by the installation, maintenance or removal of such signs, lettering, etc. Tenant shall comply with the sign specifications attached hereto as Exhibit #C" and made a part hereof. ARTICLE XVI SECTION 1601. RIGHTS OF LANDLORD Landlord reserves the following rights with respect to the demised premises: (i) At all reasonable times, by itself or its duly authorized agents, employees and contractors to go upon and inspect the demised premises and every part thereof, to enforce or carry out the provisions of this Lease, at its option to make repairs, alterations and additions to the demised premises or the building of which the demised premises are a part, to perform any defaulted obligation Tenant or for any other purposes; (ii) To display a "For Sale" sign at any time, and also after notice from either party of intention to terminate this Lease, or at amy time within five {5) months prior to the expiration of this Lease, a "For Rent" sign, or both "For Rent" and "For Sale" signs, and all of said signs.shall be placed upon such part of the demised premises as Landlord shall require, except on display windows or doors leading into the demised premises. Prospective purchasers or tenants authroiz~d by Landlord may inspect the premises at reasonable hours at any time; (iii) To install or place upon, or affix to, the roof and exterior walls of the demised premises equipment, signs, displays, antenna, and ~ny other object or structure of any kind, pcovided the same shall not materfally fmpair the structural integrity of the building or interfere with Tenant's occupancy~ (iv) At any time a~d from time to time to make alterations, or additions, to, and to build additional stories on, the building in which the premises are contained, and to build adjoining the same. Landlord also reserves the right to construct other or add to other buildings or improvements in the Shopping Center, and to permit others to do so from time to time; - 20- (v} To discontinue any and all facilities fUrnished and Services rendered by Landlord not expressly convenanted fcc herein, it being understood that they Constitute no pact of the Consideration fcc this Lease; (vi; At any time and from time to time to use all dC any part of the roof and exterior walls of-the demised P~emises for any PUcposes~ to erect scaffolds, protective barriers and other aids to construction on, around and about the exterior of the demised premises, p~ovided that access to the demised premises shall not be completely deniedl to enter the demised premises to shore the foundations and/dC walls thereof and/or to install, maintain, Use, repair, inspect and replace pipes, ducts, conduits and Wires leading through the demised premises a~d serving Other parts of the Shopping Center in locations which do not materially interfere with Tenant's use thereof. Tenant further agrees that Landlord may make any Use it desires of the side or rear walls of the demised premises, provided that there shall be no encroachment upon the interior of the demised premises; (vii) If an excavation shall be made or authorized to be made upon land adjacent to the premises, Tenant shall afford to the person causing or authroized 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 pact from injury or damage and to support the same by proper foundations, without any claim £oc damages or indemnification against Landlord or diminution or abatement of rent; (viii) Landlord shall not be liable in any such case for any incOnvenience, disturbance, loss of business or any Other annoyance arising from the exercise of any or all of the rights of Landlord in this Section 1601~ {ix) The purpose of the plan hereto annexed as Exhibit -A# is Solely to show the approximate location of the demised premises. Landlord hereby reserves the right at any time and from time to time to make Changes or revisions in such plan, including, but not limited to, additions to, subtractions from, and/or relocations or rearrangements of, the buildings, parking areas, and other Common Areas shown on such plan; provided only that the Size of the demised premises, and reasonable access thereto shall not be substantially impaired; (x) Landlord reserves the right to sever the Ownership of or title to the various sections of the Shopping Center and/or to place separate mortgages on said sections of the Shopping Center and/or to place separate mortgages on said ~ections, in which case the right of Tenant and other tenants [n khe Shopping Center will be Preserved by a written declaration or a~reement, to be executed by Landlord and duly reco~ded, c~e~ting mutual, reciprocal and interdependent rights to Use the parking and other common areas and the utilities and facilities needed for the full Use and enjoyment of the demised premises by Tenant and other tenants or Occupants in the shopping Center without impairing any of the duties and obligations of Landlord to Tenant under this Lease. Tenant shall execute from time to time such instruments reasonably required by Landlord and its mortgagee to effectuate the PrOvisions of the Section 1601(x); and (xi) If dUring the last month, of the term of this Lease ow any renewal dc extension thereof, Tenant shall have - 21 - removed all or substantially all of Tenant's property Erom the demised premises, Landlord may, prior to the expiration.or termination of the term of this Lease, without releasing Tenant from any of Tenantms obligations pursuant to this Lease, including, without limitation, Tenant's obligations to repair and restore the demised premises and to pay the full rent an0 other sums due hereunder, immediately enter upon the demised premises and alter, renovate and decorate the same at Landlord's sole cost and expense. ARTICLE IYII SECTION 1701. DAIdAGE TO PREMISES If the demises premises shall, be damaged by fire o£ other insured casualty, not due to Tenant's negligence, but are not thereby rendered untenantable in whole or in part, Landlora shall promptly at its own expense cause such damage to be repaired, and the.minimum annual rent shall not be abated. If by reason of any such occurrence, the demised premises shall be rendered untenantable only in part, Landlord shall promptly at its o~n expense cause the damage to'be repaired, and the minimum rent meanwhile shall be abated proportionately as to the portion of the demised premises rendered untenantable. If the demised premises shall be rendered wholly untenantable by reason of such occurrence, the Landlord shall promptly at its own expense cause such damage to be repaired, and the minimum rent meanwhile shall be abated in whole, provided, however, that Landlord shall have the right, to be exercised by notice In writing delivered to Tenant within sixty {60) days from and after said o~currence, to elect not to reconstruct the destroyed premises, and in such event this Lease and the tenancy hereby created shall cease as of the date of said occurrence, the rent to be adjusted as of such date. Landlord's obligations hereunder.shall be limited to the building shell and work originally done by Landlord at Landlord's cost. Notwithstarding anythinq to the contrary containe~ herein, if such casualty to t~e ~rdsecl b~emises, in Tenant's reasonable o~inion, renders the d~ise~ premises Untenanea~l~ and Tenant is not able to ope~te ARTICLE XVIII · INDEMNIFICATION AND PUBLIC LIABILITY INSURANCE SECTION 1801. Tenant will indemnify Landlord and save it harmless from and against any and all claims, actions, damages, liability and expense in connection with loss of life, personal injury and/or damage to property occurring in or about, or arising from or out of, the demised premises ~ ~ '~' '~ -~:---~ ~!:tf::~ ~r ~_ or occasioned wholly or im part by any act or omission of Tenant, its agents, contractors, customers or employees. Tenant shall keep in force st its own expense public liability insurance in companies at all times acceptable to Landlord sufficient to cove~ such indemnification and naming as insureds Landlord, Agent and Tenant~ (and, upon request, any other party named b~ Landlord) and containin9 an express ~aiver of any £ight of subrogation against Landlord and other named insureds designated by Landlord, with minimum limits of ~lve'H~ndred -- Thousand Dollars ($500,000) on account of personal lniuries to or death or one person, and One Hillion Dollars ($1,000,000) on account of personal injuries to or death of more.than one-- -~- Tenant's bu~iaes~ a~ a result t!~reo~0 mi~ r~t shall be abated ~, ~he-- date of such casualty until such date as the demised premises are re~ai~ed or restored or ~anant re-opens ~or -- 22 - business. person as the result of any one accident or disaster, and Five ~undred Thousand Dollars ($500,000) on account of damage to property, and Tenant will further deposit the policy or policies of such insurance, or certificates thereof, with Landlord with evidence of payment of premium at all times commencing with the date Tenant first enters upon the demised premises for any purpose. Each policy shall provide against cancellation without twenty (20) days' prior written notice to the named insureds. Landlord may require increased insurance limits if appropriate for similar operations in the area of the Shopping Center at any time. ARTICLE XIX WAIVER OF CLAIMS SECTION '1901. _ ~Excepr for the gross negligence of Landlord, Landlord's ' agents or employees, Landlord and Landlord's agents, employees and contractors shall not be liable for, and Tenant hereby releases all claims for, damage to person or property sustained by Tenant or any person claiming through Tenant resulting from any theft, fire, accident, occurrence or condition in or upon the demised premises or building of which they shall be a part, including, but not limited to such claims for damage resulting from (i) any defect in or failure of plumbing, heating or air-conditioning equipment, electric wiring or installation thereof, water pipes, stairs, railings or walks; (ii) any equipment or appurtenances becoming out of repair; (iii) the bursting, leaking or running of any tank, washstand, water closet, waste pipe, drain or any other pipe or tank in, upon or about such building or premises; {iv) the backing up of any sewer pipe or downspout; (v) the escape of steam or hot water; (vi) water, snow, cz- ice being upon or coming through the roof or any other place upon or near such building or premises or otherwise; (vii) the falling of any fixture, plaster or stucco; (viii) broken glass; and (ix) any act or omission of co-tenants or other Occupants of said building or of adjoining or contiguous property or buildings. SECTION 1902. In the event the demised premises or its contents are damaged or destroyed by fire or other insured casualty, the rights, if any, of either party he£eto against the other with respect to such damage or destruction are waived; and all policies of fire and/or extended coverage or other insurance covering the demised premises dC its contents shall contain a clause or endorsement providing in substance that the insurance shall not be Prejudiced if the insureds have waived the right of recovery from any person or persons prior to the date and time of loss or damage, if any. ARTICLE XX TRADE FIXTURES SECTION 2001. All trade fixtures installed by Tenant in the lea~ed premises shall be new or completely reconditioned and remain the property of Tenant and shall be removable at the expiration or earlier termination of this Lease or any renewal or - 23- material extension thereof', provided Tenant shall not at such time be in default under an~ covenant or agreement contained in this Lease; and provided further, that in the event of such removal Tenant shall promptly restore the premises to their original order and conditionJ Any s~ch trade fixtures not removed at or prior to such termination shall be and become the property of Landlord. All improvements and fixtures installed by Tenant other than trade fixtures, including but not limited to, heating equipment, lighting fixtures, air-c6nditioning equipment, store front, ceiling, wall treatment, floor covering, plumbing and electrical systems and fixtures, whether or not installed by Tenant, shall not be removable at oc before the expiration or earlier termination of this Lease or at the expiration of any renewal or extension thereof, and shall become the p£operty of Landlord without any compensation therefor to Tenant. ordinary wear and tear excepted. ARTICLE XXI ASSIGNING, MORTGAGING, SUBLETTING SECTION 2101. Tenant shall not assign, mortgage, pledge or encumber this Lease, in whole or in part, or sublet the whole or any part of the demised premises, or permit the use of the whole or any part of the demised premises by any licensee or concessionaire, without first obtaining the written consent of Landlord. This prohibition shall be construed to include a prohibition against any assignment or subletting by operation of law. In the event of any such assignment, subletting, licensing or granting or a concession, made with the written consent of the Landlord as aforesaid, Tenant will nevertheless remain liable for the performance of all the terms, conditions, and covenants of this Lease. Any permitted assignment or subletting shall be by agreement in form and content acceptable to Landlord. If Tenant is a corporation, and if control thereof or of its'parent changes at any time during the term hereof, Landlord, at its option, may, by giving sixty (60) days prior written notice to Tenant, declare such change a breach of this Lease. Landlord hereby consents to the assignment of this Lease or the subletting 'of the demised premises to a wholly' owned subsidiary of Tenants subject to the provisions above respecting continued liability of Tenant and the form and substance of the agreement. If any assignment or subletting involves a change of use, Landlord may condition its approval, inter alia, upon a revision of the percentage rent cate as may ~ appropriate for. such different use. and to an assiEnment by reason of beque$~ or inheritance to Tenant's wife or children, beth A~ICX~E XXII SECTION 2201. SUBORDINATION This Lease, upon request by Landlord, shall be automatically subject and subordinate to any and all non-occupancy leases, mortgages or deed~ of trust (collectively called 'Mortgages'). nOW or hereinafter placed upon the Shopping Center, br any part thereof, and to all future modifications, consolidations, replacements, extensions and renewals of, and all amendments and supplements to said Mortgages. Notwithstanding such subordination, as. aforesaid, this Lease, - 24 - except ag otherwise hereLnafter provided, shall not t~rminate or be divested by foreclosure or other default proceedings under said Mortgages or obligations secured the£eby, and Tenant shall attorn to and recognize the Lessor~ Mortgagee, Trustee or the purchaser at the foreclosure sale in the event of such foreclosure or other default proceeding, as Tenant's Landlord for the balance of the termlof this Lease, subjec~ to all of the terms and provisions he~eof. Such Lessor, Mortgagee or the purchaser at said foreclosure sale shall nog be: (i) Liable for an~ act or omission of Landlord; (ii) Subject to an~ offsets or defenses which Tenant might have against Landlord; .(iii) Bound by any rent or additional rent which Tenant may have paid to Landlord for more than the current month; and Bound by any amendment or modification of this Lease made without its consent. (iv) SECTION 2202. Notwithstanding the attornment agreements hereinabove set forth, the beneficiary of any such attornment agreements may elect to declare said attornment provisions to be null and void and of no force and effect. SECTION 2203. Tenant agrees to e~ecute, acknowledge and deliver any an~ all documents required to effectuate the provisions of this Article XII. SECTIO~ 2204. Tenant agrees to give any such Lessors, Mortgagees and/or trust deed holders by registered mail a copy of any notice of default served upon the Landlord, provided that prior to such notice, Tenant has been notified in writing (by way of Notice of Assignment of Rents and Leases, or otherwise} of the address of such Lessors, Mortgagees and/or trust deed holders. Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this Lease, then such Lessors, Mortgagees and/or trust deed holders shall have an additional 60 days within which to cure such default or if Such default cannot be cured within that time, then such additional time as may be necessary to cure such default (including, but not limited to, commencement of foreclosure oc default proceedings, if necessary, to effect such cure) in which event this Lease shall not be terminated while such gemedies are being so diligently pursued. SECI'ION 2205. In the event that Landlord, any mortgagee or proposed mortgagee of the Shopping Center of which the demised premises are a part, or any governmental or quasi-governmental body contemplating the issuance of or having issued obligations with respect to the Shopping Center of which the demised premises are a part oc any part thereof (the 'Authority'), o£ any of their respective counsel, shall deem Tenant to be a 'principal user" (within the meaning of Section 103(b)(6) of the Internal Revenue Code of 1954, as amended {the .'Code'}) of any facility - 25 - with respect to which the Authority shall authorize the issuance of or shall have issued obligations intended to qualify under said Section 103(b) {6) of the Code, Tenant shall provide, upon written request of Landlord from time to time (i) a statement of capital expenditures made by Tenant and related persons (as defined in Section 103(b) (6) (C) of the Code) in the county or incorporated municipality in which the demised premises are located during the period beginning three years before the date of issue of the obligation of the Authority, and (ii) supplemental statements of capital expenditures during the period ending three (3) years after the date of such issue. Such statements of capital expenditures by Tenant shall be made in a manner complying with the regulations promulgated under Section 103 of the Code (which regulations currently regulre, inter alia, the listing of dates and amounts of each capital expenditure) and shall alsow where required by such regulations, be filed with or submitted to the Internal Revenue Service and/or the. Authority. ARTICLE XXII! SECTION 2301. OFFSET STATEMENT Nitbin ten (10) days after request therefor by Landlord, or in the event that upon any sale, assignment, lease oc hypothecation of the leased premises and/or the land thereunder by Landlord, an offset statement shall be required from Tenant, Tenant agrees to deliver in recordable form a certificate to any proposed Mortgagee, Lessor or purchaser, or to to the Landlord, certifying (if such be the case) that this Lease is in full force and effect and there are no defenses or offsets thereto, or stating those claimed by Tenant. ARTICLE XXIV SECTION 2401. TRANSFER BY [~%NDLORD The term "Landlord' as used in this Lease means the Owner, only for the time being, of fee title or a leasehold estate in and to the demised premises. So long as all sums bela in escr~ by Landlord are paid over to any transferee of said premises or assignee of said leasehold estate, Landlord shall be and is hereby relieved of all covenants and obligations of Landlord hereunder after the date of transfer of saia demised premises or assignment of said leasehold estate, as the case may be, and it shall be construed without further agreement between the parties that the transferee has assumed and agreed to carry out any and all covenants and obligations of Landlord hereunder from the date of such transfer. ARTICLE X](V CONDEMNATION SECTION 2501. Tenant hereby waives as to Landlord and the condemning authority any award or damage or claim therefor for loss or - 26 - damage to Tenant as the result of the exercise of the power of eminent domain of any governmental body, whether such loss or damage results from condemnation of part or all of the demised premises or any portion of the parking area or service entrances and exits. Should any power of eminent domain be exercised after Tenant is In possession, such exercise shall not void or i~:pair this Agreement unless the amount of the demised premises so taken is such as to substantially impair the usefulness of the demised premises for the purpose for which the same are hereby demised in which event either party may cancel this Lease by notice to the other within sixty (60) days after possession is taken and the rental herein provided shall abate (proportionately or entirely, as the case may be) as of the date possession is taken by the condemning authority. ARTICLE XXVI SECTION 2601. FINANCING STATEMENT Tenant shall not enter into, execute or deliver any financing agreement that can be considered as a priority to any lease, mortgage or deed of trust upon the demised premises and, in the event Tenant does so execute or deliver such financing agreement, such action on the part of Tenant shall be considered a breach of the terms and conditions of this Lease entitling Landlord to such remedies as are provided for ~ Tenant agrees that Landlord shall have' an express con~ractual lien (in addition to any statutory lien) for the ~erformance of all of Tenant's obligations pursuant to this ~ease, upon all of the fixtures, machinery, equipment, goods, {nventory and personalty which are, or hereafter may be, placed in or upon the demised premises. Subject to the proviso at the end of Section 1401 (vii), ARTICLE XXVII SECTION 2701. SURRENDER AND HOLDING OVER Tenant, upon expiration or termination of this Lease, either by lapse of time or otherwise, shall peaceably render to Landlord the premises in broom-clean condition and in good repair. In the event that Tenant shall fail to surrender the premises upon demand, Landlord, in addition to all other remedies available to it hereunder, shall have the right to receive, as liquidated damages for all the time Tenant shall so retain possession of the premises or any part thereof, an amount equal to twice the minimum and percentage rent specified in this Lease, as applied to such period. If Tenant remains in possession of the Premises with Landlord,s consent but without a new Lease reduced to writing and duly executed, Tenant shall be deemed to be occupying the premises as a tenant at will, subject to all the Covenants, conditions and agreements of this Lease, except that the then current minimum annual rent shall be inCreased by 50% during such Period' and Tenant are engaged in good fait -~-~- I provided, however, that if Land] h --~v-.ations at the expiration or terminaric of this lease, such 50I increase shall not be imposed until the earlier of (1) 30 days following the date of expiration or termination hereof, or (2) the date - which Landlord shall send written notice to Tenant demanding the surrender of th demised premises. - 27 - ARTICLE XX¥III NOTICES SECTION 2801. Wherever in this Lease it shall be required or permitted that notice or demand be given or.served by either party to this Lease to one or the other, such notice or demand shall not be deemed to have been duly given or served unless in writing and either personally delivered or forwarded by Certified Mail, Return Receipt Requested, postage prepaid, addressed as follows: TO THE LANDLORD AT: Suite 2634 1700 Market Street Philadelphia, Pennsylvania 19103 TO THE TENANT AT: the address set forth in Article 1 above. Such addresses may be changed from time to time by either party by serving notices as above provided.- ARTICLE XXIX PERFORMANCE OF TENANT'S COVENANTS SECTION 2901. Tenant shall perform all agreements herein expressed on its part to be performed, and will promptly upon receipt of written notice of non-performance thereof, comply with the requirements of such notice; and further, if Tenant shall not comply with such notice to the satisfaction of Landlord within forty-eight (48) hours after delivery thereof, (or if such compliance cannot reasonably be completed within forty-eight (48) hours, if Tenant shall not commence to comply within Such period and thereafter proceed to completion with due ' diligence), Landlord may, at its option, do or cause to be done any or all of the things specified in said notice, and in so doing Landlord shall have the right to cause its agents, employees and co, tractors to enter upon the demised premises and in such event shall have no liability to Tenant for any loss or damage resultln9 in 'any way 'from such action~['and Tenant shall pay promptly upon demand any expense incurred by Landlord in taking such action, any such sum to be collectlble from Tenant as additional rent hereunder. except for loss or damage resulting from be gross negligence or willful misconduct of Landlord, Landlord's agents or employees ARTICLE XXX SECTION 3001o EVENTS OF DEFAULT The occurrence of any of the following shall constitute an event of default hereunder: (i) Failure of Tenant to commence business within the time period specified by Article III hereof~ (ii) Discontinuance by Tenant of the conduct of its business in the demised premises~ - 28 - provided, however, that in the event of an involuntary petition filed against tenant, such filin§ shall be an Event of Default on1¥ if same is noc discharged 'of record within 30 days folloving the date of the filing thereof; (iii) The filing of a petition by oc against Tenant for adjudication as a bankrupt or insolvent, for its reqrganization or for the appointment of a receiver or trustee of Tenant's property~ an assignment by Tenant for the benefit of creditors; or the taking of possession of the property of Tenant by any governmental officer or agency pursuant to statutory authority for the dissolution or liquidation of Tenant; (iv) Failure of Tenant to pay when due any installment of rent hereunder or any other sum herein required to be paid by Tenant~ provided, however, that Landlord shall give Tenant notice of such failure and such failure shall not be an ~venF {v) Vacation or 6esertion of the dem,seopremises or permitting the same to be empty and unoccupied; (vi) Tenant's removal or attempt to remove, or manifesting an intention to remove Tenant's goods or p£operty from or out of the demised premises otherwise than in the ordinary and usual course of business without having first paid and satisfied Landlord for all rent which may become due during the entire term of this Lease; (vii) Tenant's failure to perform any other covenant or condition Of this Lease within twenty (20] days after written notice and demand, unless the failure is of such a character as to require more than twenty (20) days to cure, in which event Tenant's failure to proceed diligently to cure such failure shall constitute an event of default; and {viii) Failure of Tenant to comply with Section 2701 hereof. of Default until receipt by Tenant of such notice Which shall be required not more than two times only in any one Lease Year. ARTICLE XXX! RIGHTS OF LANDLORD UFON DEFAULT BY TENANT SECTION 3101. In the event of occurrence of an event of default hereunder: (i) The whole rent for the balance of the term of this Lease, as hereinafter computed, or any part thereof, at the option of the Landlord, shall immediately, without act or notice, become due and payable as if by the terms of this Lease the same were poyable in advance; and (ii} Landlord may immediately proceed to distrain, collect or bring action for the whole rent or such part thereof as aforesaid, as being rent in arrears, or may enter judgment therefor in an amicable action as herein elsewhere provided for tn case of rent in arrears, or may file a Proof of Claim in any bankruptcy or insolvency proceedings for such rent, or Landlord may institute any other proceedings, whether similar to the foregoing or not, to enforce payment thereof. SECTION 3102. Rent for each year for the balance of the term after the happening of any event of default for the purpose of computing the whole rent for the balance of the term of this Lease under Section 3101 and 3105 hereof shall be computed as - 29 - equal to the yearly average if the minimum and percentage rent payable by Tenant pursuant to Article VI of this Lease for the last three (3) full lease years immediately preceding said event of default, plus (the following herein referred to as 'Added Charges')' Tenant's share of real estate taxes, dues to the Merchants' Association, 'insurance charges and costs of operation of the 8hopping Center and maintenance of the common areas and facilities, payable for the current applicable year. if the amount of Added Charges for the curr~nt applicable year are not then available, then Tenant's share of Added Charges' payable for the preceding year shall be used in the computation of annual rent. If less than three (3) full lease years bare preceded the ~cu£rence of said event of default, then the annual average of minimum and percentage rental theretofore required to be paid by Tenant shall be used in the computation of annual rent. SECTION 3103. As long as the whole rent or any part thereof as aforesaid remains unpaid, the Landlord may, at any time thereafter re-enter an0 re-possess the demised premises and any part thereof and attempt to relet all o£ any part of such demised premises fo£ the account of Tenant for such rent and upon such terms and to such persons, firms or corporations and for such period or periods as Landlord, in its sole discretion, shall determine, including the term beyond the termination of this Lease, and Landlord shall not be required to accept any tenant offered by Tenant or observe any instruction given by Tenant about such reletting, or do any act oc exercise any care of diligence with respect to such reletting or to the ~on of damages. For the purpose of such reletting, Landlor~may decorate or make repairs, changeS, alterations or additions in or to the demised premises to the extent deemed by Landlord desirable or convenient, and the cost of such decoration, repairs, changes, alterations or additions shall be charged to and be payable by Tenant as additional rent hereunder, as well as any reasonable brokerage and legal fees expended by Landlord, and any sums collected by Landlord f£om any new tenant obtained on account of the Tenant shall be credited against the balance of the rent due hereunder as aforesaid. ill Landlord's cC~uerctally reasonable Judgement SECTION 3104. At any time after any event of default shall occur and remain uncured, Landlord, at its option, may serve notice upon Tenant that this Lease and the then unexpired term hereof shall cease and expire and become absolutely void on the date specified in such notice, to be not less than five (5) days after the date of such notice, a~d thereupon, and at the expiration of the time limited in such notice this Lease and the term hereof granted, as w~ll as all of the right, title and interest of the Tenant hereunder, shall wholly cease and expire and become void in the same harmer and with the same force and effect (except as to Tenant's liability) as if the date fixed in such notice were the date herein specified for expiration of the term of this Lease. Thereupon, Tenant shall immediately quit and surrender to Landlord the demised premises, including any and all buildings and improvements thereon, and Landlord may enter into and repossess the demised premises by summary proceedings, detainer, ejectment or otherwise, and remove all occupants thereof and, at Landlord's option, any property thereon without being liable to indictment, prosecution or damages therefor. - 30 - SECTION 3105. In the event of termination of this Lease, at Landlord's option, Tenant shall pay to Landlord all rental and other charges payable hereunder due and unpaid to the date of termination. and Added Charges required to be paid under this Le~ from the date of said termination to the end of the fermentS,his Lease, as if the same had not been terminated, the ~d rent for the balance of the term of this Lease and Add--barges to be computed in the same manner as provide~$],~i~n Section 3102 hereof. In the event any judgment~ been entered against Tenant for any amount in excess/the total amount r~quired to be paid by Tenant to Landlorj~reunder, then the damages assessed under said judgm~ shall be re-~sessed and a c~edit granted' to the exten~sa~ ex.ss. ~~es hereto acknowledge that t~amages ~h the L~ndlocd is entitled in the event o~r~se and termi~on by Landlord ~n~ subject to many- variabl~eto have a~reed to th~ ligui~d d~ages as herein p~vide~ order to avoid ex, ed litigation in the event of default by Tenant and SECTION 3106. Upon the occurrence of any event of default, as aforesaid, then Landlord or any person acting under Landlord: (i) May enter the premises and without further demand, proceed by distress and sale of the goods there found to levy the rent, all other charges herein payable as rent, a.d all costs and officers' commissions, including watchmen's wages, and further including the f'ive (5%) percent chargeable by the Act of Assembly to Landlord, shall be ~aid by the Tenant, and that, in such case, all costs, officers' commissions and other charges shall Immediately attach and become a part of the claim of said Landlord for rent, and any tender of rent without said costs made after the issue of a warrant of distress shall not be sufficient to satisfy the claim of said Landlord. Tenant hereby expressly waives the benefit of all laws now made or that may hereafter be made regarding any limitation in which distress is to be made after removal of goods. Tenant waives in favor of Landlord all rights under the Act of Assembly of April 6, 1951, P.L.69 Art. V., Sec. 501, and all supplements and amendments thereto that have been or may hereafter be passed, and authorizes the sale of any goods distrained for rent at any time after five (5) days from said distraint without any appraisement and/or condemnation thereof~ and/or (ii) May re-enter and repossess the demised premises, breaking open locke~ doors, if necessary, and may use as much force as necessary to effect such entrance without being liable to any action or prosecution for such entry or the manner thereof, nor shall Landlord be liable for the loss of any property upon the premises. SECTION 3107. If proceedings shall be commenced by Landlord to recover pOSsession under the Acts of Assembly, either at the end of a term or upon the occurrence of any event of default, Tenant expressly waives all rights to notice in excess of five (5) days required by any Act of Assembly' including the Act of - 31 - December 1¢, 1863, the Act of April 3, 1830 and/or the Act of April 6, IgSI, and agrees that in either or any such case five {5) days' notice shall be sufficient. Without limitatipn of or by the foregoing, the Tenant hereby waives any and ail demands, notices of intention and notices of action dC proceedings which may be £equtred by law to be given or taken prior to any entry or re-entry by summary proceedings, ejectment or otherwise, by LandIord, except as hereinbefore expressly provided with respect to the five (5} days' notice and provided further that this shaI1 not be construed as a waiver by Tenant of any notices to which this Lease expressly provides Tenant is entitled. SECTION 3108. In the event of a termination of this Lease, prior to the date of expiration herein originally fixed, whether by reason of service of a notice as provides herein terminating this Lease or by reason of entry or re-entry, summary proceedings, ejectment Or other of law, Tenant hereby waives all right to recover or regain ~Ossession of the demised premises, to save forfeiture by payment of rent due or by other performance of the conditions, terms or provisions hereof, if such termination occurred by reason of any failure in performance hereof, and without limitation of or by the foregoing, Tenant waives all right to reinstate or redeem this Lease notwithstanding any provisions of any statute, law or decision now or hereafter in force or effect, and Tenant waives all right to any second or further trial in summary proceedings, ejectment or in any other action provided by any statute or decision now or hereafter in force or effect. SECTION 3109. The words 'entry' and 're-entry' as used in this Lease shall not be deemed restricted to their technical legal meaning. SECTION 3110. In the event of a breach or anticipatorTbreach by Tenant of any of the agreements, conditions, covenants or terms hereof, Landlord shall have the right of injunction to restrain the same and the right to invoke any remedy allowed by law or in equity whether or not other remedies, indemnity or reimbursements are herein provided. The rights and remedies given to Landlor~ in this Lease are distinct, separate and cumulative remedies, and that no one of them whether or not exercised by Landlord, shall be deemed to be in exclusion of any of the others. SECTION 3111. Zf rent or any charges hereby reserved as rent, or liquidated damages, or any other sum payable hereunder, shall remain anpaid when the same ought to be paid, Tenant hereby empowers any prothonotary or attorney of any court of record to appear for Tenant in any aha all actions which ~a¥ be brought fox rent, liquidated damages or other charges or expenses agreed to be paid by Tenant hereunder and to sign for Tenant an agreement for entering into any competent court and amicable action or actions for the recovery of rent, liquidated damages or other charges or expenses, and in said suits or in said amicable action or actions to confess ~udgment against Tenant for all or any part of the rent including, at Landlord's option, the rent loc the entire unexpired balance of the term - 32 - of this'Lease, computed as aforesaid, and any other charges, payments, costs and expenses reserved as rent or agreed to be paid by the Tenant, as well as liquidated damages, and for interest and costs together with an attorney's commission of five (5%) percent thereof. Said authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any of said rent or other charges reserved as rent or liquidated damages shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term or during any extension or renewal of this Lease. SECTION 3112. In the event that, and when, the Lease shall be determined by term, covenant, limitation or condition broken, as aforesaid, either during the original term of this Lease, or any extension thereof, and also when and as soon as the term hereby created, or any extension thereof shall have expired, it shall be lawful for any attorney as attorney for Tenant to sign an agreement for entering in any competent Court an amicable action and judgment in ejectment, without any stay of execution or appeal against Tenant and all persons claiming under Tenant for the recovery by Landlord of possession of the herein demised premises, without any liability on the part of the said attorney, for which this Lease shall be a sufficient warrant, whereupon, if Landlord so desires a writ of possession with clauses for costs may issue forthwith without any prior writ or proceedings whatsoever. If for any reason after such action has been commenced the same shall be determined and the possession of the premises hereby demised remain in or be restored to Tenant, the Landlord shall have the right to any subsequent default or defaults to bring one or more further amicable actions in the manner and form hereinbefore set forth, to recover possession of said premises for such subsequent default. No such determination of this Lease nor taking, nor recovering possession of the premises shall deprive Landlord of any remedies or action ag against Tenant for rent or for damages due or to become due for the breach of any condition or covenant herein contained, nor shall the bringing of any such action for rent, or breach of covenant or condition nor the resort to any other remedy herein provided for the recovery of rent or damage for such breach be construed as a waiver of the right to insist upon the forfeiture and to obtain possession in the manner herein provided. SECTION 3113. In any amicable action of ejectment or for rent arrears, Landlord shall first cause to be filed in such action an affidavit made by it or Someone acting for it setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this Lease be filed l~ such action, it shall not be necessary to file the original as a warrant of attorney, any rule of court custom or practice to the contrary notwithstanding. SECTION 3114. by or in any ~O~ate by virtue ~ ~ rs of attorney ~V~j~.~ and T~~~, .~_h_a..ll 9e fi,al, appeal, certiorari, writ Of error, - 33 - releases to ~and]ord and to any and all attorneys ~ho may appea£ ~or Tenant all errors in the said proceedings. Tenant expressly waives the benefits of la~. no~ or hereafter in force, exempting any goods on the demised premises, or elsewhere from distraint, levy or sale in any legal proceedings taken by the Landlord to enforce any rights under this Lease. Tenant Eurther waives the right to delay execution on any real estate that may be levied Upon to collect any amount which may become due under the te£ms and conditions of thls Lease, and does hereby waive any right to have the same appraised and authorizes the prothonotary to enter a Writ of Execution or Other process upon Tenant's voluntary waiver, and further agrees that the said real estate may be sold on a Wrlt of Execution or other process. SECTION '3115. Landlord shall have the right to apply any payments made by Tenant to. the satisfaction of any debt or obligation of Tenant to Landlord according to Landlord's sole discretion and regardless of the instructions of Tenant as to application of any such sum, whether such instructions be endorsed upon Tenant's check or otherwise, unless Otherwise agreed by the parties in writing which makes specific reference to this Section 3115. The acceptance by Landlord of a check or checks drawn by other than Tenant shall not in any way affect Tenant's liability hereunder, nor shall such acceptance be deemed an approval of any subletting or assignment of this Lease by Tenant. ARTICLE XXXII SECTION 3201. CUSTOM AND USAGE Any law, usage or custom to the contrary notwithstanding, Landlord shall have the right at all time~ to enforce the covenants and conditions of this Lease in strict accordance with the teems hereof and notwithstanding any conduct or custom on the part of the Landlord in refraining fro~ so doing at any time or times. The failure of Landlord at any time or times to enforce its rights under said covenants and provisions strictly in accordance with the same shall not be construed as having created a custom in any way or manner contrary to Specific terms, provisions and covenants of this Lease or as having mc~ified or waived the same. ARTICLE ][XXI I! SECTION 3301. SUCCESSORS AND &SSIGNS~ AGENT All rights, obligations and liabilities herein, given to, or imposed upon, the respective parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors, sublessees and assigns of said parties, subject to the provisions of Section 2401; provided, however, that the liability of Landlord hereunder and any successor in interest and title to Landlord's leasehold estate in and to the demised premises shall be limited to his or its interest in the Shopping Center, and nO other assets of the - 34 - Landlord other than his or its interest in the Shopping'Center shall be affected by reason of any liability which said Landlord or successor in interest may have under this Lease. If there shall be more than one tenant, they shall all be bound jointly and severally by the terms, covenants, and agreements herein and 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 more; and if there shall be more than one Tenant, any notice required or permitted by 'the terms of this Lease may be given by or to any one thereof and shall have the same force and effect as if given by or to all thereof. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment to such assignee has been approved by Landlord in writing as aforesaid. Kravitz Properties, Inc. is acting as Agent only and shall not in any event be held liable to the Landlord or to 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 including, but not limited to, any such action arising out of, in connection with or in any manner relating to, the performance or non-performance by Agent or any act pursuant to Landlord's direction. Any waiver of Landlord's liability hereunder, including, but not limited to, any waiver of subrogation rights, shall apply with equal force and effect to such Agent. ARTICLE XXXIV SCOPE AND INTERPRETATION OF THE AGP. EEMENT SECTION 3401. This Lease shall be considered to be the only agreement between the parties hereto pertaining to the demised premises. All negotiations and oral agreements acceptable to both parties are included herein. The laws of the Commbnwealth of Pennsylvania shall govern the validity, interpretation, performance and enforcement of this Lease. regulation of any governmental body having jurisdiction shal~"' have the effect of limiting for any period of time the of ~ent or other charges payable by Tenant to any amo3~"less than that otherwise provided pursuant to this Leas~-~the following amounts shall nevertheless be payabie~.~'T'ena~t: (a) throughout such period of limitation,.Tenan~,~'1%all remain liable for the maximum amount of ~ent anther charges are l~ally payable (without regard t~ny lfm~ta~o~ to the pa~able by reason of this Sect~3402 shali not i~he --- aggregate exceed the total~~ whic~ould othe~wise be payable by Tenant pu~o th~erm~f this Lea~--}~--- c°ilectib~c~=~;i~ have ru cc regulation, and (c) for the remainin L~a~ :~ll~,:..- ~c _~ ..... ,~_~ .... g term of this - 35 - ARTICLE XXXV SECTION 3501. CAPTIONS Any headings preceding the text of the several Articles and subparagraphs hereof are inserte~ solely for convenience of reference and shall not constitute a part of this Lease, nor shall they affect its meaning, construction or effect.' IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year.first above wr~en. CHARLES W; WILEY, JR. T/A ".]P~ S DELI ~r'\ KRAVITZ ~PR(~PERTI~, IINC. If Tenant is a corporation, Lease should be executed by President or Vice President and attested to by Secretary, Assistant Secretary, Treasurer or Assistant Treasurer and the corporate seal affixed. If Tenant is a partnership, all partners must execute the Lease and if Tenant is an individual or partnership, ail signatures should be witnessed. APPROVED BY OWNER~ CAMp HILL SHOPPING CENTER ASSOCIATES - 36 - SUPPLEHENT 1 TO LEASE DATED June 18 ,-19 85 BETWEEN KRAVITZ PROPERTIES t INC., Agent for CAt4P HILL SHOPPING CE~ER ASSOCIATES ('~ANDLORDa) AND CHARLES W. WILEY. Jlt. TIA~ W~ley ~ s. Del! ( ~TEN&NT* ) DEMI S I NG CERTAIN SPA~ IN CA~P HZLL SHOPPING CENTER. Pvrsuant to the provisions o[ Section 50! o[ the above Lease, Landlord anc~ Tenant, lntefldl~g to be '!egal!¥ bound herebyt agree ~ba~ ~be ~erm of said Lease c~eflced off ~r~l 28 19 86~ ~he Rental Co~eflcemen~ Da~e was ~ 1 ~ 1986, and said Lease shall end off the 3lsc da~ oE ~y ~ 199~ a~ Mldnigh~, unless S~nec terminated or ex~ended as therein p~ovlded. Said Lease is in ~ull ~Orce and effect and Tenan~ Is tn ~ssession o~ the Denlsed PFemises and ~menced paying rent on said Rental CO~encement Da~e. La,lord is not tn default unde~ said Lease, the ~mised premises as erected and ~pleted a~e accepted by Tenan~ this Lease and there Is no o~fset of rent. IN WI~ESS ~OF~ the parties hereto have duly executed this Supplement to said Lease~ this ~'t ~--~. day of ~/A ~IL~*s APPR~D B~ O~ER: ~ HILL SHOPPXN~ CE~ER KRAVITZ PROP~RTIES~ INC. - 37 - EXHIBIT "A" LANDLORD hereby reserves the right, et any time and from time to time. to alter, or otherwise modi[~ the locations and[or dimensions of all buildings, parking ~rea~. set,ice drives, entries, exits, mnlls. other facilities shown on this Exhibit 'A". to place in the malls, courts, corridors, and other commm areas of the Shopping Center. landscaping, decorative items, and structures and a~ea~ for retail and promotional activities, and to constrdct, lease, operate and m&intaln buildings, structures: and other facilities not shown on this Exhibit "A". provided, however, that Landlord shall not ~iolate any rights expressly reserved to Tenant in this Lease. EXHIBIT 1. LANDLORD'S ~ORK Except as otherwise provided in this Exhibit "B", Landlord, at its own cost and expense, has constructed or will construct the following;-all of which are herein collectively refe[[ed to ""as "Landlord's Work": A. Building of Which Demised P[emises Shall Form a Part. The building of which the demised premises forms a part {herein referred to as the "Building") shall be constructed (to the extent not now existing) in accordance with the following criteria: · 1. Structure. The structural frame includin9 columns, beams, joists and roof will be, at Landlord's option, of steel, concrete and such other non-combustible material as may be specified by Landlord's architect. 2. Roof. The roof will be of a bonded type construction insulated to provide a 'U" factor of 0.09. 3. Exterior Walls. The exterior walls will be of masonry, prefabricated panels or such other material or materials as may be specified by Landlord's architect. 4. Interior Faces. The exposed interior face of exterior walls will 'be of masonry, wallboard or such other material or materials as may be specified by Landlord's architect. B. Common Areas. Landlord shall construct inside and outside the Building certain Common Areas, limited to the following: 1. Outside Common Areas. The Common Areas ouside the Building will include hard surface and striped parking lots, access roads, directional, parking and traffic signs, a storm drainage system, delivery areas, walks, lighting, landscaping and planting and such other areas, facilities and buildings, as determined by Landlord, as ~re used in the maintenance and operation of the Shopping Center. 2. Inside Common Areas. The Common Area inside the Building will include an enclosed, heated and air-conditioned, lighted and sprinklered mall with courts, lighted and sp~inklered service and exit corridors, stairs or ramps and such other facilities, as determined by Landlord, as are used in the maintenance and operation of the Shopping Center. 3. SEE ADDENDUM - PAGE B-IA C. Work Within Tenant's Space. Landlord's Work with regard to the demised premises shall be limited to the following (to the extent not now existing): 1. Demising Walls. The demising walls or demising studs which separate the demised premises from other tenant areas and Common Areas will extend from the finished floor to the underside of the cool deck. Unless required by applicable law to construct demising walls for fire corridors and emergenc~ B-1 ADDENDUI,! TO EXHIBIT PAGE NO : R-1 SECTION : 1. PARAGRAPH : B. LANDLORD'S WORK CO~tON AREAS 3. FOOD COURT CO~C. ION AREA THE C~I~4ON AREA INSIDE THE FOOD COURT SHALL CONTAIN COHHON TABLES, CHAIRS, AND SERVING TRAYS SUPPLIED BY THE LANDLORD, AT FOOD COURT TENANT'S EXPENSE. (Hi) LANDLORD WILL DELIVER TO FOOD COURT TENANT A STATEHENT SNOglNG IN REASONABLE DETAIL FOOl) COURT TENANT'S PROPORTIONATE SHARE OF SUCH. ACTUAL COSTS OF THE AFOREHEN'rlOWED IHPROVI~tENTS AND, NITHIN T~ENTY (20) .DAYS AFTER DELIVERy OF SUCH STATEHENT, FOOD COURT TENANT I~ILL PAY SUCH AIiOUNT SHONN TO BE DUE BY SAID STATEHENT, AS ADDITIONAL RENT. (Hii) FOOD COURT TENANT'S PROPORTIONATE SHARE OF THE ACTUAL COSTS SHALL RE IN THE SA~E PROPORTION TO THE TOTAL COST, AS THE TOTAL GROSS RENTABLE FOOD COURT DE~IISED PREHIsEs BEARS TO THE TOTAL GROSS NU~ER OF RENTABLE SQUARE FEET OF GROUND FLOOR LEASEABLE FOOD COURT AREA CONTAINED ~ITHIN ALL FOOD COURT [~LL STORES. (iv) LANDLORD ~ILL PROVIDE A CEILING HUNG NEON SICN IN THE FOOD COURT CO~fHON AREA PERPENDICULAR TO AND CENTERED ON THE FOOD COURT TENANTS STOREFRONT AS SPECIFIED IN EXHIBIT "C' AT THE TENANTS EXPENSE. exits of unfinished masonry block, Landlord will furnish metal studs on which Tenant shall place demising walls in accordance with Article II, Section B. 2. Floors~ The floors within the demised premises will be concrete with a troweled finish installed at an elevation selected by Landlord. ~ If Tenant shall have notified Landlord in writing at or before the execution of this Lease and if at such time the concrete floor slab has not been ~oured for the demised premises, and provided and so long as the delay in pouring such concrete floor slab will not interfere with and/or delay completion of Landlord's Work or 'any portion thereof, the slab will not ~e poured until the Tenant'S contractor has completed Tenant's underground utility work. After the concrete floor slab is poured, Landlord in no event shall be responsible for any subsequent underground work or removal and/or replacing of the concrete floor slab. In the event Tenant deems it necessary to remove and/or replace such floor slab, such work shall be done by Tenant at Tenant's own cost and expense. 3. Doors. One hollow metal service door with dimensions of 3'0" by ?'0" will be provided at the location shown in and in accordance with 'Landlord's Design Criteria' (as defined in Article III of this Exhibit 'B'). Tenant, at Tenant's own cost and expence, will provide and install all panic hardware, lockset and closer. No door will be provided by Landlord in any Store which has a depth of 50 feet or less or an area of 1,200 square feet or less. 4. Landlord's Optional Work. At its option, Landlord may provide at Tenant's cost and expense a neutral vertical material between each store on the mall side of the demising partition, and/or a horizontal neutral strip as shown on Landlord's Plans, above the store front limiting the height thereof. D. Utility Services in Demised Premises. 1o Utility Lines. Landlord, its a~ents, employees and contractors, and any utility company which furnishes utilities to the demised premises and/or the Shopping Center, shall have the right to run utility lines, duct work, where necessary or desirable, through ceiling space, column space or other parts of the demised premises and to repair, alter, replace or remove the same in a manner which does not unreasonably interfere with Tenant's use of the demise~ premises. 2. Electric Service. Electric will be available for the demised premises at Landlord's bus ducts at a location designated by Landlord pursuant to the procedures set forth in Landlord's Design Criteria. Electric service characteristics will be 2??/480 volts, 3 phase, 4 wire, ~D hertz. Landlord will provide between the demised premises and the closest service corridor an empty conduit unless the demised premises abut a service corridor, in which case Tenant shall p£ovide the conduit. Tenant will provide bus plugs with fuses, the conduit and feeder between the bus duct and the demised premises, and check metering within the demised premises and will extend conduit within the demised premises to Tenant's distribution syst~ Tenant's distribution facilities within the demised premises shall consist of all necessary switches, conductors, transformers and cpntrols in addition to Tenant's normal lighting and power devices. The installation by Tenant of all electrical facilities shall conform to Landlord's Design Criteria and to the National Electric Code, and meet the requirements of the Landlord's fire underwriter and local governmental authorities. Ail material and fixtures shall be new and carry UL labeIs. Any existing electrical facilities must be changed to conform with the above requirements and Landlord's Design Criteria to enable electricity to be provided by Landlord. 3o Water Service. Landlord will provide a branch water line, with shutoff valve, of not less than 3/4 inch to a point in the demised premises designated by Landlord. Any increase in the size of water s~rvice required by Tenant which necessitates a branch water line larger than such 3/4 inch line will be furnished, at Tenant's expense, upon written request of Tenant. Any existing water facilities must be changed to conform with Landlord's Design Criteria to enable water to be provided by Landlord. 4. Gas Service. Gas service will not be available. 5. Sanitary Sewer Service. Landlord will stub a plugged 4' sanitary outlet, at floor level at a location selected by the Landlord, to which Tenant will connect in accordance with Landlord"s Design C£iteria, notwithstanding current facilities which may exist. 6. Sprinkler Main Service. Landlord will provide a sprinkler bulk main with capped outlets to the demised premises at a location determined by Landlord and sized to accommodate sprinkler coverage required by Factory Mutual. Landlord will deliver to Tenant a plan showing the bulk main and capped outlet in the demised premises an~ Tenant will install all piping and other sprinkler work, including feed main, cross main, branch line, riser nipples, drop sprinklers and heads to provide a complete sprinkler system in accordance with Landlord's Design Criteria and sprinkler working drawings, prepared by Tenant's contractor, and approved by Factory Mutual and all authorities having jurisdiction. ?o Seating and Air Conditioning System. Landlord will provide and install a medium pressure, constant 'temperature air supply main at a location designated by Landlord to supply cooling and ventilation air for Tenant's premises and, at Tenant's expensew a medium p£essure, variable air volume terminal complete with system powered thermostat for variable air volume terminal control. The installation of all ductwork, electric heating with controls, diffusers, return air registers and other mechanical appar&tus :elated thereto required by Tenant's H~AC system shall be provided by Tenant, at its cost and e~,se, and all such work shall be designed and installed in accordance with Landlord's Design Criteria and Landlord's HVAC ~lan, notwithstanding current facilities which may exist. 8o Telephone Service. ~andlord will provide central telephone locations as designate~ by Landlord. Tenant will make its c~n arrangements with ~he telephone compan~ for telephone service and will install a conduit from Landlord's designated telephone location to the demised premises as may be required, notwithstanding current facilities which may exist. II. TENANT'S WORK Notwithstanding the present facilities in the demised premises and the present condition and state of repair of the demised premises, all work set forth in this Article II and all other work not specifically designated as Landlord's Work by Article I which is necessary to complete the demised premises in accordance with Tenant's Final Plans and Landlord's Design Criteria and which is necessary for the demised premises to conform thereto and to all current requirements of all governmental authorities having jurisdiction (including, without limitation, emergency lights, rewiring, alarms and extlnguishers) and to be ready to open for business with the public by the commencement date, in the manner set forth in the Lease, shall'be done by Tenant at Tenant's own oost and at expense. Ail such work which is not specifically designated as Landlord's Work is herein collectively referred to as 'Tenant's Work". A. Demised Premises. The store shall be designed and installed in accordance with Landlord's Design Criteria, the requirements of Landlord's fire underwriter and the current requirements of any governmental authority having jurisdiction over the project.- Tenant's store front shall conform to the design criteria as established by Landlord's architect and set forth in Landlord's Design Criteria. The store shall have a customer entrance not to exceed 10'0' in height. Tenant shall not install its finished ceiling above 11'0' in height. The design, character and materials of the store front and all aspects of the design and construction of the interior of the demised premises shall be subject to the approval of the Landlord. All exposed metal flashing, doors, and trim are to be permanodic or duranodic finish or equal in standard. Open grills are to meet the same re0uirements. A hard dry surface at the bottom 6' of the store front construction shall be provided by Tenant. This material shall be non-absorbent (wood or other porous materials are not acceptable). The sign background and finish is subject to Landlord's approval. Open grills wider than 12' are to be motorized. In the event the demised premises have a side wall abutting a mall entrance or side mall, Tenant shall incorporate into the desig~ of such wall one or more of (a) entrance to the premises and (b) see-through display storefront, and (c) shadow box merchandise display. Tenant may not install a mezzanine without Landlord's approval. Tenant shall not exceed a floor load capability of 200 pounds per square foot. B. Sales Area. The floor slab shall be covered with floor finish materials approved by Landlord. Carpeting shall be flame resistant. Ceilings shall be constructed of 24' x 48' acoustic tile, one (1] hour fire rated, on exposed metal T bar grid system or such other fire rated material as approved by Landlord. Demising walls shall extend to the underside of the roof deck and shall be constructed of sheet rock in accordance with applicable state and local laws and ordinances and the regulations of Landlord's fire underwriter, but in no event less than 5/8' sheet rock taped and spackled. All masonry walls and partitions shall be furred out sheet rock, of the aforesaid thickness, taped and spackled. Those partitions B-¢ dividing sales area from non-sales area which contain no ceiling shalI be carried to the underside of roof deck on both sides. All concealed framing above ceilings or soffits shall be made of steel studs or other fire retardant materials in accordance with Landlord's Design Criteria. Certain store fronts or side corridor fronts as shown on Landlord's Floor and Structural Plans may be designated by the applicable fire marshall to carry fire extinguisher cabinets recessed into their walls. All "A' occupancy Tenants (as defined by the Pennsylvania Department of Labor and Industry) must provide partitions and ceilings with two {2) hour fire rating. C. Sto~k Room, Service anti Other Non-Sales Areas. · The concrete floor slab, if left exposed, must be. sealed With a sealant approved by Landlord's architect. If the concrete floor slab is covered, the provisions relating to floor finish materials for the sales area shall apply. Perimeter walls shall be of either exposed masonry or drywall and taped. Rear wails shall be insulated in accordance with Landlord's Design Criteria. D. Toilet Rooms. The floors shall have non-porous floor covering over the concrete floor slab. All walls and ceilings shall be of drywall, taped and spackled. E.' Painting and Decorating. Exposed walls shall have a minimum two coat finish and all wood paneling a minimum of one sealer coat. The walls and ceiling of the toilet room shall have two coat semi-gloss enamel finish. The stock room and service areas may be left unfinished. F. Utility Work by Tenant. 1. Electrical. The installation by Tenant of'alt electrical facilities shall conform to Landlord's Design Criteria {to the additional electrical information supplied by Landlord to Tenant as set forth in the electrical load data portion by Landlord's Design Criteria) and to the National Electric Code, and meet the requirements of the Landlord's fire underwriter and all other local, state or federal governmental authorities. All material and fixtures shall be new and cagey 0T~ labels. Any transformer necessary to reduce the voltage supplied to levels acceptable for Tenant shall be provided by Tenant at its expense. Circuits must include a time clock controlling sign and store front illumination and separate circuits for night lighting and exit signs. Emergency lights shall be provided by Tenant. Tenant shall provide a buzzer call system at service door entrance or from a common corridor entrance, as required by Landlord. Tenant's work drawings (as referred to in Article III) shall indicate the circuits showing connections to alarm, television, I~AC or other special circuits. 2. Plumbing. Tenant shall install underslab drain and soil lines to Landlord's soil line at the point of entry selected by Landlord. Requirements greater than that provided by Landlord must be shown on Tenant's wockinq drawings and will be made at Tenant's expense. Tenant shall be responsible for the installation of a water meter to service water line B-5 installed by Landlord at a point designated by Landlord. Tenant shall p£ovide a minimum of one close-coupled water closet, one lavatory, and one electric hot water heater. Ail of the aforesaid shall be in accordance with Landlord's Design Criteria. G. Pire Protection. All tenant spaces must carry the approved fire extinguishers required by governmental authorities. Tenant, at Tenant's own cost and expense, shall wrap all columns within the demised premises from the floor to the underside of the roof deck with one hour fire rated materials. Tenant shall install all sprinkler pipes, feed mains, cross mains, nipples, drop heads, etc. ~om the capped outlets on bandlord's bulk main. H. Mechanical Systems. Tenant shall design and, at its sole cost and expense, install a complete air-conditioning distribution system. In addition, Tenant may, at its option, install an electric heating system. Such systems shall be designed and installed in accordance with Landlord's ~VAC Plans and Landlord's Design Criteria, at the location therefor specified on Landlord's HVAC Plan. If Tenant is required to install a rooftop HVAC system, Tenant will reimburse Landlord for providing additional rooftop structural supports. Tenant shall provide an exhaust fan of adequate capacity for each toilet room and such other ventilating.equipment as may be required. The design and location o[ exhaust systems shall be approved by Landlord prior to installation. Signs. All signs shall conform to the standards as set forth in Exhibit 'C'. Roof Penetrations. Tenant shall submit for approval of Landlord's architect in the working drawing phase, drawings showing all roof penetrations for special vents and equipment. Ail roof openings, reinforcing, curb work and flashing and repairs to the roof required by Tenant's installations shall be performed by Landlord's contractor, at Tenant's expense. Tenant shall pay all costs for the opening of the roof and for any special vents required by Tenant. K. ~nsurance. 1. All Risk Znsurance. In addition to, and not in lieu of the other ~olicies of insurance regui£ed by this Lease, at all times during the Period cOmmencing with the start of constcuction of Tenant's Work and terminating on the date of the acceptance by Landlord of Tenant's Work as being completed in accordance with the provisions of this Exhibit "B" (such period is herein referred to as "Tenant's Construction Period"), Tenant, at its own cost and expense, shall maintain B-6 in effect with a responsible insurance company appcoved~by Landlord, a policy of 'All Risk" Builder's Risk Insurance in the standard Pennsylvania form. Said insurance shall cover the full replacement value of all work done or to be done and all fixtures and equi~ent installled or to be installed at the demised premises by Tenant, without co-insurance and without any deductible clause. 2. Workman's Compensation. At all' times during Tenant's Construction Period, Tenant's contractors and subcontractors shall maintain in effect Workman's Compensation Insurance as required by the laws of the state in which the Shopping Center is located. 3. Adjustment of LOSS. Any loss occurring during Tenant's. Construction Period shall be adjusted with Landlord and the proceeds shall be payable to Landlord, in trust, for the purpose of repair or reconstruction. Repair and/or reconstruction of all or any portion of Tenant's Work damaged or destroyed by any casualty occurring during Tenant's Construction Period shall be commenced by Tenant as soon as possible after such casualty; provided that if all or any portion of Landlord's Work is also damaged or destroyed by such casualty, Landlord shall notify Tenant when repairs or reconstruction of Landlord's Work is substantially completed and, within fifteen (15) days after receipt of such notice Tenant shall diligently pursue such repair and/or construction to complet'ion. 4. Insurance Provisions. Ail policies of insurance, except Workman's Compensation required to be carried by the provisions of Section K.2, shall contain the following endorsements in substantially the following form: ''Notwithstanding anything to the contrary, it is agreed that MID-ISLAND PROPERTIES, INC., as Landlord, KRAVITZ PROPERTIES, · INC., as Landlord's Agent and Landlord's general contractor (name to be supplied to Tenant], are hereby added as additional insureds. It is understood and agreed that the insurance afforded by this policy or policies for more than one name~ insured shall not operate to increase the companies' liab£1ity, 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 named insured. No cancellation or reduction of this policy shall be effective unless written notice is given by registered or certified mail, return receipt requested, to the Landlord with a copy to Agent, stating when such cancellation or reduction in coverage shall be effective, (which, in no event shall be less than twenty (20) days thereafter).' True copies of each such Dolicy or certiffcates of insurance evidehcing the same and containi~ such endorsements shall be delivered to Landlord prior to the commencement of Tenant's Work and shall thereafter be replaced in the event of the expiration, lapse or cancellation of any such policy. Miscellaneous and General Requfrements. 1. Governmental Regulations. All of Tenant's Work shall be done in accordance with the Tenant's Final Plans, the current requirements of all applicable laws, ordinances, regulations, codes and other requirements of governmental authorities, with the regulations of Landlord's fire underwr{ter and Landlord's Design Criteria. At any time B-7 from time to time during the performance of Tenant's Work, Landlord, Agent, Landlord's architect and/or Landlord's general contractor may enter upon the demised premises and inspect the work being performed by Tenant and take such steps as they may deem necessary or desirable to assure the proper performance by Tenant of Tenant's Work and/or for the protection of the Building and/or any premises adjacent to the demised premises. In addition, Tenant's Work shall be performe~ in a thoroughly first-class and workmanlike manner, shall incorporate only new materials and shall be in good and usable condition at the date of completion. 2. Landlord's Consents Interpreted. Any approval or consent by Landlord or any or all of Tenant's criteria, systems, plans, or drawings shall neither constitute an assumption of responsibility by Landlord for any aspect of such criteria, systems, plans or drawings including, but not limited to, their accuracy or efficiency nor obligate Landlord in any manner with respect to Tenant's Work and Tenant shall be solely responsible for any deficiency in any design or construction of all portions of Tenant's Work for which Tenant is responsible. 3. Permits and Fees. Tenant shall obtain and pay for all necessary permits and shall pay all other fees required by public authorities or utility companies with respect to Tenant's Work, except that Landlord may elect to obtain the building permits for Tenant'S Work, in which event Tenant shall pay the cost of such permit or, at Landlord's option, Landlord may deduct such cost from 'Tenant's Allowance" (as defined in Article IV hereof). 4. Temporary Storage Areas. No contractor or subcontractor participating £n Tenant's Work may use any space within the Shopping Center for storage, handling and moving of materials and equipment and/or for the location of a field office or facilities for the employees of such contractor and subcontractor without obtaining Landlord's prior written approval for each such use. If any contractor and/or subcontractor shall use any space in the Shopping Center for any or all of the aforesaid enumerated purposes or any other similar purpose without obtaining Landlord's written approval therefor, Landlord shall have the right to terminate such use and remove ali of such contractor's o£ subcontractor's material, equipment and other property from such space, without Landlord being liable to Tenant and/or to such contractor or subcontractor and the cost of such termination and/or removal shall be paid by Tenant to Landlord or Landlord, at its option, may deduct such cost from Tenant's Allowance. 5. Temporary Store Fronts. Temporary enclosure barricades and temporary signs shall be constructed and finished by Tenant in accordance with Landlord's Design Criteria. If Tenant's store will not be open for business with the public by the date the Shopping Center is first so opened and Tenant has not installed a temporary store front as required by Landlord, Landlord shall install it at a cost to Tenant of $50.00 a lineal foot. 6. Protection of Work. It shall be Tenant's responsibility to cause each of Tenant's contractors and subcontractors to maintain continuous protection of' adjacent property and improvements against damage by reason of the performance of Tenant's Work. Each contractor and S-$ subcontractor shall properly protect Tenant's Work with lights, guard rails and barricades and shall secure all parts of Tenant's Work against accident, storm and any other hazared. ?. Interference with Others. Tenant's Work shall be coordinated with all work being performed or to be performed by Landlord and other occupants of the Shopping Center to the end that Tenant's Work will not interfere with or delay the completion of the Buildin9 or any other construction within the Shopping Center, and each such contractor and subcontractor shall comply with all procedures and regulations prescribed by Landlord or its agents {including, but not limited to, Agent] for integratio, of Tenant's Work with that to be performed in connection with the construction of the Shopping Center. · 8. Contractors. To the end that there shall be no labor dispute which would interfere with the construction, completion or operation of the Shopping Center, or any part thereof including, but not limited to, the demised premises, Tenant agrees to engage the services of only such contractors or subcontractors (for both Tenant's Work and any other work which Tenant does, whether or not such work is permitted or required pursuant to the Lease) as will work in harmony and without causing any labor dispute with each other, with Landlord's contractors and subcontracto£s and with the contractors and subcontractors of all others working in or upon the Shopping Center or any part thereof, and Tenant shall employ and shall require its contractors and subcontractors to employ only such labor as will work in harmony and without causing any labor dispute with all other labor then working in the Shopping Center or any part thereof including, but not limited to, the demised premises. Furthermore, only those contractors and subcontractors as have been duly licensed by the authority having jurisdiction over the appropriate profession and which have been approved in writing by Landlord (which approval will not be unreasonably withheld) may perform any work [including, but not limited to, Tenant's Work) for Tenant in or upon the demised premises. g. Financial Requirements. Landlord may require Tenant, before entering on the demised premises to commence Tenant's Work, to give Landlord proof satisfactory to Landlord of Tenant's financial ability to complete and fully pay for Tenant's Work prior to the cosu~encement date or, in lieu thereof, either to furnish to Landlord a bond in an amount satisfactory to Landlord written by a surety company acceptable to Landlord guaranteeing the completion of Tenant's Work free of any liens~ or to deposit in escrow with Landlord (without the obligation of Landlord to pay interest thereon) the est{mated sum required to complete Tenant's Work. If such a deposit shall be made, upon the satisfactory completion of Tesant's Work in accordance with the provisions of this Exhibit 'B' and the submission of proof that all bills in connection therewith have.been paid, Landlord shall release such funds from escrow. ~andlord in its sole discretion, both as to the e~tent and amount, may release portions of such escrow deposit directly to Tenant or Tenant's contrackors, subcontractorst materialmen and/or suppliers to pay bills as Tenant's Work progresses. 10. Guarantees. Each contractor and subcontractor participating in Tenant's Work for whic~ such contractor or subcontractor is responsible, shall guarantee or warrant in for which'Tenant is obligated pursuant to this Exhibit 'B' including, but not limited to, the sprinkler bulk main charge, the tool penetration charge, the trash removal charge and the electric cha£ge, within ten (10) days after written demand therefor is made by Landlord. If payment is not made within such period then Landlord may offset all such sums against Tenant's Allowance. III. CONSTRUCTION PROCEDURES. A. Landlord's Design Criteria. Afte~ the execution of the Lease, Landlord's architect will deliver to Tenant one (1} scale drawing of the floo~ plan of the demised premises (the Landlord's 'Floor Plan') indicating, inter alia, demising partitions, general construction, column locations, VAV terminal, sanitary outlet, dcm,stir water location and sprinkler bulk main, and one copy of Landlord's design criteria package which shall include Landlord's criteria for design of the demised premises, preliminary plans, HVAC plans and criteria, electrical plans and such other plans, criteria, drawings and information as Landlord or Landlord's architect deems necessary or appropriate. Ail of the items included within such design criteria package are herein collectively referred to as 'Landlord's Design Criteria'. Bo Tenant's Preliminary Plans. Within twenty (20) days after receipt by Tenant of the above, Tenant shall submit for Landlord's approval in sepia form, complete store front design plans, a sign plan, a merchandising layout plan, Tenant's estimated heating/cooling load calculations, fI~AC drawings, plumbing drawings and sprinkler drawings, all of which shall be in accordance with the criteria set forth in Landlord's Floor Plan and Landlord's Design Criteria and all of which are collectively referred to as 'Tenant's Preliminary Plans'. C. Landlord's Review. 1. Landlo£d will review and return to Tenant Tenant's Preliminary Plans either marked approved, marked to show the corrections required (in which event such marked-up Preliminary Plans shall be deemed approved, as marked up) or give Tenant written notice of disapproval of Tenant's Preliminary Plans together with the reasons therefor. In the event Landlord gives Tenant notice of disapproval together with the reasons therefor, Tenant shall have twenty (20} days from the date of such notice of disapproval by Landlord to submit revised Tenant's Preliminary Plans sub~ect'to subsequent markups and/or disapprovals and corrections in the manner set forth above~ provided, however, if Tenant's Preliminary Plans do not meet Landlord's approval after the second submission, Landlord, at its option to be exe£cised by written notice to Tenant, may terminate this Lease, which termination shall be effective as of the date set forth in such written notice. 2. Tenant's estimated heating-cooling load shall be subject to Landlord's approval and in the event Landlord shall disapprove the same, Tenant shall revise the same until such estimated heating-cooling load is approved by Landlord. Tenant shall no~ change its estimated heating-cooling load once the same has been approved by Landlord.. B-11 3. The information contained in Tenant's electrical load data form shall be subject to Landlord's approval, and Tenant shall revise the same until the same is approved by Landlord. When Landlord has approved such information, Landlord shall supply to Tenant the additional information set forth in the electrical load data portion o£ Landlord's Design Criteria. Based upon such additional information, Tenant shall prepare its electrical plans for the demised' premises. After receipt by Tenant of the additional information set forth in the electrical load data po~tlon of Landlord's Design Criteria, Tenant may not thereafter modify its electrical load data unless Landlord has consented to such modification. Any costs associated with such consented to modifications shall be borne by Tenant. '4. It is agreed that Tenant is responsible for satisfying Tenant's requirements for the demised premises. Landlord's review is only to dete£mine conformity with Landlord's Design Criteria and systems. Tenant is responsible for design and code compliance, construction and installation. D. Tenant's Working Drawings. Within sixty {60) days from the date of receipt by Tenant of Landlord's Floor Plan and Landlord's Design Criteria, regardless of whether the Tenant's Preliminary Plans have been submitted, Tenant shall submit to the Landlord's architect for approval three (3) sets and a sepia of complete working construction drawings and specifications for Tenant's Nork including architectural, plumbing, electrical, sprinkler, heating, ventilating and air-conditioning, and mechanical drawings for all Tenant's Work in accordance with Landlord's Floor Plan, Landlord's Design Criteria, Landlord's B~AC Plan electrical load data supplied Tenant by Landlord and approved Tenant's Preliminary Plans, if any. Opon receipt of such working drawings Landlord shall have the same rights of approval, markup and disapproval and Tenant shall have the same obligations as to resubmission as are set forth with regard to Preliminary Plans. Tenant's Final Plans. The total of all approved Tenant's Preliminary Plans and approved Tenant's working drawings and specifications (whether such approval be affirmative either initially or after resubmission by Landlord's markup) are collectively referred to herein as 'Tenant's Final Plans'. F. Preparation of Tenant's Plans. tll of ?enant's Preliminary Plansw specifications and working drawings shall be prepared by a registered architect or enginee£ normally engaged in the business of providing such services and e~ployed by Tenant at its expense. If required by local o~ state code, these drawings shall bear the seal of an architect or engineer registered to practice in the jurisdiction, in order to obtain required permits. Tenant shall not submit plans and specifications which have been prepared by contractors, subcontractors or suppliers, since such plans will not be accepted by Landlord. G. Failure to Hake Submissions and Improper submissions. If Tenant fails or omits to make timely submission or resubmissLuns to Landlord of Tenant's Preliminary Plans or any specifications or any working drawings within the required time periods or fails to or delays in submitting or supplying information or in giving authorizations or in performing or completing Tenant's Work or in any manner delays or interferes with the performance of Landlord's Work, Landlord, in addition to any other right or remedy it may have under this Lease, at law or in equity, may pursue 'any one or more of the ~ollowing remedies: 1. Landlord may give Tenant at least ten (10) days' written notice that if a specified failure, omission or delay is not cured by the date therein stated, this Lease shall be deemed cancelled and terminated. If such notice shall be complied with, this Lease shall, on the date stated in such notice, be cancelled and terminated without prejudice to Landlord's other rights and remedies hereunder; and 2. After written notice of its intention to do so, Landlord may, at Tenant's cost and expense including, without limitation, expense for such overtime as Landlord may deem necessary, proceed with the completion of any such Preliminary Plans and/or working drawings and/or Tenant's Work, as the case may be, and such performance by Landlord shall have the same effect hereunder as if the desired plans, specifications, information, approval, authorization, work or other action by Tenant had been done (but not paid for) as herein required; and 3. Landlord may require Tenant to pay to Landlord, as additional rent hereunder, the cost to Landlord of completing the demised premises in accordance with the terms of this Lease over and above what would have been such cost had there been no such failure, omission or delay; and 4. In exercising any or all of the foregoing remedies set forth in Section G.I, I, 3 and 4 of this Article III, Landlord shall be entitled to retain and have recourse to any bond or escrow deposit provided by Tenant. If any Tenant submission is rejected because of failure of Tenant to reasonably conform to Landlord's Design Criteria, Tenant shall pay upon demand the costs of additional reviews by Landlord's architects and engineers. H. Completion of Tenant's Work. Tenant shall complete Tenant's Work as quickly as possible,, but in no event later than the rental commencement date. I. Occupancy Permit. Tenant shall secure an occupancy permit from that authority which has jurisdiction over the premises in sufficient time to permit Tenant to open the premises at the rental commencement date. J. Completion Date. See Lease Section 302. Liens. B-13 Prior to commencing any of Tenant's Work, Tenant shall file or cause its contractor to file in the appropriate office a waiver of mechanic's lien binding upon such contractor and all subcontractors and materialmen and shall thereafter pay all contractors and materialmen so as to minimize the possibility of a lien attaching to the demised premises or the Shopping Center in connection with Tenant's Work. If a mechanic's lien is filed against the demised premises or th~ Shoppin9 Center, In connection with Tenant's Work, Tenant agrees to bond against or discharge such lien within ten (10) days after written request by Landlord. If Tenant shall fail to cause such lien to be bonded against or discharged within the time aforesaid, then, in addition to any other right or remedy which Landlord may have under this Lease, at law or in equity, Landlord may [but shall not be obligated to) from and to the extent of any escrow deposit tberetofore deposited by Tenant with Landlord and/or from and to the extent of the amount which would otherwise be due from Tenant as Tenant's Allowance and/or from any other source, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or bonding proceedings, and~ in any such event, Landlord shall be entitled, if Landlord so elects, to compe! the p~osecutio, of any'action for the foreclosure of such lien by the lienor with interest, costs and expenses. In the event that Landlord elects to make any or all such payments from and to the extent of funds other than the aforesaid escrow deposit or Tenant's Allowance, Tenant shall reimburse Landlord, as additional rent, u~on demand, to the extent of such sums and all costs and expense incurred by Landlord in connection with the removal of any such lien together with interest thereon at the highest rate permitted by law, but in no event higher than ten percent (i0%) per annum from the respective dates of Landlord making of the payment and incurring of the cost and expense. In addition, Landlord, at its option, may treat Tenant's failure to comply with the foregoing as an event of default. B-14 IV. TENANT'S ALLOWANCE. Landlord shall reimburse Tenant on account of the cost of Tenant's Work, in the amount and manner hereinafter provided, the amount of such reimbursement being refer~ed to herein as 'Tenant's Allowance'. Landlord shall set off against Tenant's Allowance, all costs, charges, fees and otbe~ sums which Tenant is obligated to pay pursuant to the Lease and this Exhibit 'B' (including those referred to in Section III.K. of this Exhibit 'B') which have not been paid to Landlord or Agent, as the case may be, at the time of Tenant's request for the payment of Tenant's Allowance. A. Amount of Allowance. Tenant's Allowance shall be the lesser of $ 2~,000.00 or the actual cost of construction of Tenant's Work, as evidenced by the lowest competitive bid or bids therefor. Payment of Allowance. Provided Tenant is not otherwise in default, Landlord shall pay Tenant's Allowance to Tenant after the completion of Tenant's Work as certified by Tenant's architect~ subject, however, to Landlord's verification that Tenant's Work has been completed, b~t in no event shall Tenant's allowance be paid to Tenant prior to the Tenant having furnished to landlord, in form and substance acceptable to Landlord, all of the following: 1. Tenant's affidavit that Tenant's Work has been complete~ to Tenant's satisfaction and in complete accordance with the Tenant's Final Plans and Tenant's construction requirements and certifying to Landlord the amount of the lowest competitive bid or bids for Tenant's Work, which affidavit may be relied upon by Landlocd and any deliberate or negligent misstatement or false statement by Tenant therein may be treated by Landlord as an event of default. 2. The affidavit of the general contractor performing Tenant's Work has been fully completed in accordance with the Tenant's Final Plans and that all subcontractors, laborers and materlalmen engaged in or supplying materials for Tenant's Work have been paid in full. 3. An e~ecuted and acknowledged Release of Mechanic's Liens with respect to the demised premises executed by Tenant's general contractor and by every subcontractor and supplie~ of labor and/or materials engaged in Tenant's Work. 4. Properly issued certificates evidencing acceptance or approval of the demised premises by appropriate governmental authorities, including the underwriter's approval certificate fo~ th~ electrical work done by Tenant. 5. Notice by Tenant to ~andlord that Tenant has opened t~e demised premises for business with the public, and setting f~rth the date on which such opening occurred. 6. A set of 'as-built' plans and specifications for Tenant's #ork, together with names and addresses of Tend' Tenant's electrical, plumbing, and HVAC ~ontractors, prepared and sealed by Tenant's architect. ~. Any other statements, certificates o~ agceements requested pursuant to the Lease. B-15 SIGN REGULATIONS ANP SPECIFICATIONS EXHIBIT 'C# The purpose of these regulations is to encourage'and develop creative and diversified signing for Tenant stores in compliance with the following criteria which shall in any event be limited by the provisions of Section 1501. and Exhibit B of the Lease Agreement. a. 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. .b. Signs shall consist of individual letters. Signs of the flashing, blinking or animated type are not permitted. Box type signs, when built into and an integral part of the stote front design may be submitted for consideration. c. The size of all signs shall be limited and shall be in scale and harmony with the Shopping Center. The lettering on Tenant's sign shall not exceed the following limitations: (i) Height - 16' for letters with the exception of the initial capital letters, if used, which may be 24'; depth - 1# minimum, 4# maxiumumo (ii) Area - Ho lettering shall be located within two (2) feet of any adjacent store or corridor, nor shall any sign occupy more than seventy (7Or) percent of the store frontage on the mall. 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 pancrama of signs. d. Printed signs on storefronts or sho~ windows are prohibited with the exception of small-scale signs which are neatly lettered on the glass of the storefront or logos on door handles. e. Subject to compliance with all applicable code requirements, public safety decals or art work on glass in minimum sizes may be used. f. Paper signs, stickers, banners or flags may not be used by Tenant. go An exterior sign (one located on the outside of Tenant's real wall) shall be p~£mitted only in the case of those tenants authorize~ by Landlord to have a direct rear customer entrance from the parking area, and shall be subject to Landlord's sole discretion as to design, size and location. h. No exposed raceways, ballast boxes or electrical transformers will be permitted. i. Sign company names or stamps shall be concealed (applicable ordinances and codes permitting). j. Ho exposed sign illumination and no flood lighting of signs or storefronts shall be permitted. C-1 k. No permanent or temporary window signs fastened to the interior or exterior of the show windows shall be permitted except for signature or identification signs, lettered or affixed directly on the glass. 1. No more than one store sign may be installed on each score froutage in which one or more customer entrances are located. If the'leased premises is a '~cotner' store even though a customer entrance is not located on each frontage, two store signs may be installed one on each store frontage of the leased premises. m. All sign letters and sign boxes must be internally illuminated, with the exception of exposed decorative lighting which shall be in white only. Haximum brightness allowed for interior signs which front on the enclosed mall, if any, viii be 100 foot lamberts taken at the letter face. n. No portion of any sign shall project note than 8" beyond the storefront. o. Signs and identifyiog marks shall be placed enttrely within the boundaries of the demised premises with no part higher than the neutral curtain wall space above the storefront (or neutral band above, if any). p. Signs for kiosks, promotional displays or for shows viii in every instance require the written approval of the Landlord. q. Tensor shall comply with the requirements of all applicable codes, and/or local ordinances and obtain local government approval when required by code. All permits shall be obtained by the tenant's o~n sign contractor at Tenantts own cost aod expense. r. All signs must be "Underwriters Approved". s. No ~ood blocking or flammable construction material is to be used in the attachment of any sign material above the store front. t. Interior projecting signs or graphic identification ~hich front on the mall shall not be greater than 2'6" x 2'6"; interior illuminated cube madules which front the mall shall not be greater than 2'6" x 2~6'' x 2'6". SPECIAL CRITERIA FOR FOOD COURT AREA 1. Signage ~ust occur in the 2'-6" high sign area indicated on the tenant lease plan. 2. Tenant Food Court signs ~ust be made of decorative exposed neon. The Neon viii insure a maximum visual impact for these signs and help create the special feeling of the Food Court. 3. Signboard and Neon Color is at Tenants option subject to approval of Landlord. 4. All signs within Tenant space such as menu boards, price lists, seasonal promotions, and other graphic devices are subject to Landlord approval. Internally illuminated signs within the premises are acceptable if designed as part of the store decor and approved by Landlord. 5. A ceiling hung Neon sign in the public area perpendicular to and centered on the tenantn storefront viii also be required. This nigh will give the generic type of food served by each tenant such as "Deli" or "Ice Cream" etc. This sign is to hang free against a mirror plexiglas'background with the neon tube sign on each side so it can be read clearly from either side of the Food Court. The top is to be 8" below the ceiling and maximum letter size is 12" for Capitals and 9" for s~all letters. The mirror plexi§las background is to be 16" deep and 2" lo~er than the neon lettering on each end. The top wiII be 6" belo~ the ceiling. The sign Is to start 4'-0" into the mall from the storefront. This sign viii be provided by the Landlord at the tenants expense. Tenant shall submit drawings for Tenant's signs and other methods of identification in accordance with the provisions of Exhibit "B". standing 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 Landlordts print written approval of their size, type, location, quality and aesthetic properties. EXHISIT 'D' CONDITIONED AIR CHARGE RATE ADJUSTMENT SCHEDULE The following is the 'Conditioned A~r Charge Rate Adjustment Schedule' ~eferred to in Article XI of the Lease. Except as otherwise provided, all terms herein shall have the same meaning as in the Lease. The Tenant's annual 'Conditioned Air Charge' shall be the sum of the capital facilities charge, the electric energy usage charge, the maintenance charge, and the make-up air cha~ge. (a) The cubic feet per minute (CFM) of conditioned air for the Tenant's demised premises shall be determined in accordance with procedures described in the Design Criteria referred to in Exhibit 'B,' hereinafter called the 'Tenant CFM.' (b) The Tenant's annual capital facilities charge shall be equal to $1.00 ~e£ 'Tenant CFM' of conditioned air for the demised premises. (c) The Tenant's annual electric energy charge for conditioned air. {1) Included as part of Common Area charges, each Tenant will be allowed a maximum of one [1) CFM of conditfofled air per sq. ft. of his demised premises at no additional electric energy charge. (2) The annual electric energy charge for the 'Tenants CFM' shall be equal to 14 KWH per 'Tenant CFM' in excess of one (1} CFM per sq. ft. of Tenant's demised premises multiplied by the Landlord's KWH cost. (3) The Landlord's KWH cost shall be the Landlord's total electric energy cost for the Shopping Center divided by the total KWH purchased. (d) The Tenant's annual maintenance charge for conditioned air. (1) The Tenant's annual conditioned air charge for maintenance shall be equal to 'Tenants CFM' multiplied by the Landlord's maintenance cost per CFM of conditioned afr. (2) The Landlord's maintenance cost ~er CFM of conditioned air shall be the Landlord's total cost to maintain the Tenant air conditioning systems divided by the sum of all 'Tenant CFM.' (e) The Tenant's annual make-up air charge. D-1 (1) Make-up air is that air which is exhausted by Tenant because of code requirements or because the air is contaminated by odor or temperature caused by Tenant's operations and cannot be returned to the system. Such operations include, but ace not limited to, :estaurants, beauty salons, pet shops, fast food, etc. |2) The quantity of make-up air required by Tenant, hereinafter called 'Tenant MA CFM,' shall be determined in accordance with procedures described applicable sections of the Design Criteria. (3) The ?enant's annual electric energy make-up air charge shall be equal to 15 KWH per "Tenant M~ CFM" multiplieO by the bandlord's KWH cost. D-2 CHARGE RATE SAMPLE SAMPLE STORE (See "M-l"): SPACE - 00 TENANT AIR COND. = 2,800 CFM LEASED AREA = 2,500 Sq. Ft. TENANT MAKE-UP AIR = 3,500 CFM A. CAPITAL FACILITIES CHARGE 2800 CFM at $1.00/CFM COST/YR COST/MO ELECTRIC ENERGY CHARGE (Assumed LL Cost 6 cents/KWH ) Excess CFM=2800 CFM-2500 CFM 300 CFM 300 CFM x 14 KWH/CFM x $0.06/KWH= MAINTENANCE CHARGE (LL Annual Cost=$58,000) $58t000 = 33 cents/CFM/YR 180,000 CFM 2800 CFM at 33 cents/CFM/YR TOTALS MAKE-UP AIR CHARGE 3500 CFM x 15 KWH/CFMx$0.06/KWH TOTALS = SUMMARY Conditioned Air = $1. sg/SF/yR Make-Wp Air ~ I. 26/SP/YR TOTAL = $2.85/SF/YR $2,800.00 $233.33 $1.] 252.00 21.00 0.] 924.00 77.00 0.~ $3,976.00 $331.33 $ 1.! = 3t150.00 262.50 !-: $7,126.00 $593.83 $ 2.~ D-3 COOLING LOAD TABULATION DATA TENANT NAME: TOTAL LEASED AREA: SAMPLE STORE SPACE NO.: 00 2f500 AIH CONDITIONED AREA: 2t500 SF LOAD DESCRIPTION: CEILING WALL PEOPLE SENSIBLE LOAD BTUH: 2r500 x (90° - 75°) x 0.08 = 3fO00 (AREA) 'U" (CEILING) 560 x 1BT x 0.24 = 2f420 (AREA) 'U# WALL 33 X 315 BTU/PERSON-SENS '= 10r395 (oU~TY) LIGHTING: FLUORESCENT LIGHTING 6~405 (WATTS) x 3.41 x 1.20 INCANDESCENT LIGHTS lr050 x 3.41 (WATTS) = 26r210 = 3f580 = 4r250 = 10r625 60r480 POWER lr246 x 3.41 (WATTS) MISCELLANEOUS 3r115 x 3.41 ( WATTS ) MISCELLANEOUS E~UIPMENT - TOTAL SPACE -- SENSIBLE LOAD TENANTS CALCULATED SUPPLY AIR 0UANTITY (SA(}) TOTAL SENS LOAD = 60r480 = 2f800 (1.08)(T2-T1) 1.08 (75-55) MAEE-UP AIR REQUIRED 3r500 T1 = SUPPLY AIRTEMP.; T2 = RETURN AIR TEMP. T1 - T2 = 20°F CFM CFM D-4 Experience-Rdiustment of Conditioned ~ir Service Charqe Landlord reserves the right to adjust (either upwards or downwards) Tenant's Initial Annual Conditioned Air Charge from time to time, by the issuance of an adjustment reflecting the accumulated experience of the Landlord's engineer from the operation of the system producing Conditioned Air. Such adjustment shall be reasonable and subject to arbitration, not acceptable to Tenant. lrbitrattont if requested~ shall be held in Philadelphia, Pennsylvania, and carried out in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time when the arbitration procedure commendes including, but not limited those rules regarding the selection of a£bitrators. The award rendered in such arbitration shall be binding on Landlord and Tenant and judgment upon the award may be entered by any court having jurisdiction thereof. If the American &rbitration Association is not in existence at the time the arbitration procedure commences, the provisions of the Uniform Arbitration Act, as adopted by the Commonwealth o[ Pennsylvania, shall apply. D-5 EXHIBIT ELECTRICITY COMPONENT The Electricity Component shall be the monthly sum equal to= (1) the kilowatt-hour (KWH) charge, and (2) the capital facilities charge. (a) The monthly KWH charge shall be calculated as follows: Tenant's main fuse size in Amperes x 'M' x 0.831 (to convert to KW) x hours of operation per month x 'Landlord's kilowatt-hour cost. The multiplier 'H" is Landlord's judgment of the extent of utilization of full capacity and shall be equal to the following: Fast Food Tenant: M= o5 Sit Down Restaurant Tenant= M = .5 Pet Shop Tenant: M= .8 All other Tenants= (b) The monthly capital facilities charge shall be based upon the Tenant's main fuse size aha shall be in accordance with the following schedule= Fast Foo~ Tenant: $3.?5/Ampere (all electric) Fast Food Tenant: SS.SO/Ampere (gas cooking) Sit Down Restaurant Tenant: $4.50/Ampere (all electric) Sit Down Restaurant Tenant= $4.00/Ampere (gas cooking) Pet Shop Tenants: ~4.00/Ampere All other Tenants: (c) 20 and 30 amps $5.50/k~pere 40 and 50 amps $4.50/&mpere 60 amps and above $3.00/Ampe£e The "Lam31ord's Kilowatt Hour Cost" fo£ each month during the Lease Term shall be the sum derived by dividing into Landlo£d's Electrical Cost for such month the number of kilowatt hours used by Landlord during such month as such hours are set forth on all bills to Landlord included in Landlord's Electrical Cost. id) "Landlord's Electrical Cost" shall be the total cost to Landlord for elect£icity used in connection with the operation of the Shopping Center, including, without limitation, the cost for electricity consumed in the Landlo£d's Property and all buildings and improvements thereon and all co~mon areas, including the lighting, heating, ventilating and air-conditioning thereof. EXHIBIT 2 AFFIDAVIT IN SUPPORT OF COMPLAINT BY CONFESSION I, Nn~^ R. KILROY, being duly sworn, depose and say as follows: 1. I, Nina R. Kilroy, am Senior Vice President of Metro Commercial Management Services, Inc., as agent for Connecticut General Life Insurance Company with respect to the Camp Hill Shopping Mall. 2. I make this Affidavit in support of Connecticut General Life Insurance Com- pany's Complaint by Confession for Possession against Tenant Charles W. Wiley, Jr., a sole proprietor doing business as Wiley's Deli, at the Camp Hill Shopping Mall. 3. In my position as Senior Vice President of Metro Commercial Management Ser- vices, Inc., ! am, and have been since April 1, 2002, overseeing property management of the Camp Hill Shopping Mall, and as such I am, or those under my supervision are, custodian(s) of business records relating to the operation of the Camp Hill Shopping Mall, including but not lim- ited to records regarding Leases with tenants and rental payments by tenant. 4. Connecticut General Life Insurance Company (hereinafter the "Landlord") is the current owner of, and landlord with respect to, the enclosed regional shopping center known as the "Camp Hill Shopping Mall" or as the "Camp Hill Shopping Center," located at 32nd Street and Trindle Road, Camp Hill, Pennsylvania 17011. 5. The document attached as "Exhibit 1" to the said Complaint being filed on behalf of Connecticut General Life Insurance Company against Charles W. Wiley, Jr., is a true and cor- rect copy of Lease documentation contained in the business records of the Camp Hill Shopping Mall pursuant to which Mr. Wiley rented the food court restaurant space at the Camp Hill Shop- ping Mail designated as "Store No. L-6" (hereinafter the "Premises"). 6. As is reflected in the face of the said Lease documentation, the Lease t¢~'nxinated by the expiration of its stated texans on October 31, 2001, as is set forth in Section l(a) of the Second Amendment of the Lease. 7. Tenant, Charles W. Wiley, Jr., remains in possession of the Premises, notwith- standing that the term of the Lease has expired and that no new Lease has been entered into be- tween Landlord and Tenant. COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS.: On this, the'~']'f~ day of~ '~ ,2002, before me, a Notary Public, the undersigned officer, personally appeared Nina R. Kilroy, known to me (or satisfactorily proven) to be the per- son whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. In witness whereof, I hereunto set my hand and seal. NOTARY' L~IC ~'~ NOT.4J~[AL $ F..~,I.. FRY, Notlu'y Public ~ E.x~lres Nov. VERIFICATION I, NIN^ R. Kn.Roy, Senior Vice President of Metro Commercial Management Services, Inc., as agent for Connecticut General Life Insurance Company with respect to the Camp Hill Shopping Mall, am authorized to make this Verification, and hereby verify that the statements contained in the foregoing Complaint are tree and correct to the best of my knowledge, informa- tion and belief, and are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. N~.~. Kn.~oY Attorneys for Plaintiff' JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 CONNECTICUT GENERAL LIFE INSLKLaANCE COMPANY, a Connecticut Corporation, Plaintiff V. CHARLES W. Wn.EY, JR., a Sole Proprietor, doing business as Wn~v~y's DELI, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. 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- Dated: April 10, 2002 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: Charles W. Wiley, Jr. 200 Mountain Road Lewisberry, PA 17339 JOHNSTON & D~MOND, P.C. Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 {~ J]tmL~ a. ~. SD .A 'NoDi ~13 ~g2d, Esquire Attorneys for Plaintiff Attorneys for Plaintiff: JAMES A. DIAMOND, ESQUIRE Pa. I.D. No. 43902 JOHNSTON & DIAMOND, P.C. Suite 100, 150 Corporate Center Drive P. O. Box 98, Camp Hill, PA 17001-0098 Phone: (717) 975-5500 CONNECTICUT GENERAL 1 ,~ ~E INSURANCE COMPANY, a Connecticut Corporation, Plaintiff V. CHARLES W. WILEY, JR., a Sole Proprietor, : doing business as Wn.F.y's DELI, : Defendant : IN TI-IE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. C1VIL ACTION - LAW NOTICE TO DEFENDANT BY PROTHONOTARY OF ENTRY OF CONFESSED JUDGMENT FOR POSSESSION TO: CI-I~qLES W. WILEY, JR., a Sole Proprietor, doing business as Wn3~y's DELI, You are hereby notified pursuant to Pa. R.C.P. No. 236, that on 2002, judgment by confession was entered against you in the above-captioned case for ejectment at Store No. L-6 erected as part of the shopping center known as the "Camp Hill Shopping Mall," located at 32ha · . DatedStreet.~/~r2a_ (_and-Tnndle//,.R°ad';lr~,~ ~,.CamP Hill, Cumberland(t,~~County, .~.~Pennsylvani Prothonotary IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PIF. ASE 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 SHERIFF'S RETURN CASE NO: 2002-01805 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CONNECTICUT GENERAL LIFE INS VS WILEY CHARLES W JR DBA WILEY'S - REGULAR RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE OF DEFT RIGHTS was served upon WILEY CHARLES W JR DBA WILEY'S DELIthe DEFENDANT , at 1010:00 HOURS, on the 8th day of ~ay at CAMP HILL SHOPPING MALL STORE L-6 2002 CAMP HILL, PA 17011 by handing to CHARLES WILEY (OWNER) a true and attested copy of NOTICE OF DEFT RIGHTS together with and at the same time directing His attention to the contents thereof. Sheriff,s Costs: Docketing 18.00 Service 9.66 Affidavit .00 Surcharge 10.00 .00 37.66 Sworn and Subscribed to before me this /~ day of So Answers: 05/09/2002 JOHNSTON ~r By: ~ iff