HomeMy WebLinkAbout06-4923
[N THI COt'R'1 ()f; (;O~'.'\iOF j':EAS
01' CUMBF:fL"r~n C(}f."'l"Y n':",c"~~rtV AN'"
PR CAPITAL CIT'Y LIMITED PARTN1'RSH.ii',
'..IViL DIVISION
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Plaintiff,
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CAPITOL TUXEDO, INC ,
Defendant.
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CQl"fEESS]Ol"i.m:..,nJ[)..GMI!;NJ_~QRMO~~X
Pursuant tothc authority cO'lt!:.ined m the Wanal\l ,)f Attomey, the original or a coll!f.-of
whkh " attacbed to the Complaint filed in this acti'.:\rl, I appe~r for tbd)et(,ndant and confilss
judl.:;m~nt in favor of Plaintiff and ligainst Defend:!!".! tf,r money as fdll1w3:
Amount due from 6/Jl06 through 3!1i06
$ 11,626.28
Attorneys' fees f01 enforcernent and co])"cliol1 (5~")
provided IU1der ~19.06 of the t'.Qse
$
581.3 .1
Filing Fee
1.".-l9.5ll
$ 12,227,09
TOTAL
Dated' August... JJ 20li(,
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.A tti,mey iur Detendant
Capitol Tuxedo, Inc. (Capital City)
UNSWORN VERIFICATION UNDER 18 FA. COS. & 4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. 9 4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative ofthe
Plaintiff identified in the attached Complaint in Confession of Judgment for Money and that
averments of fact contained in such Complaint are true and correct to the best of my knowledge,
information and belief.
PREIT SERVICES, LLC,
Agent for PR CAP IT AL CITY LIMITED PARTNERSHIP
Dated:
~~l
,2006
By:
[~" ';/Ph41~
Debra Lambert
Vice President - Legal Services and
Corporate Affairs
....
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
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PR CAPfI'AL CITY LIMITED PARTNERSHIP, )
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Plaintiff, )
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CAPITOL TUXEDO, INC., )
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Defendant. )
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CIVIL DIVISION
No.ot.-4CJ2.~ C;oL j~
~OJ]CIkOF Ell! t~y O,Ji:J.LQN.t~~~};Q.J!1.p~.IE~FORM..Q!'9,;X;:,", '.o!i',
TO: CAPITOL TUXEDO, INC,
Please t.ake notice that. ajudgment fl)T llloney in the 3II10lmt of $12,227 ;09 has blX.'!1:'
entered against YOl~by~.onfession.()n the date bel~w'j1.1 favor ofthePlairaifL ,.'
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Date:--1d"'4- .2A I) DOl.,
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IN THE COURT 01< COMMON PLEAS
OF CUMBERLAND COl.JNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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l'laintiff, )
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CAPITOl TUXEDO, INC. )
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Defendant. )
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CIVIL DIVISION
No. c&. - 4q'J..~ ~;()~L'-r~
COMPLAINT IN CON}'ESSION OF'
.JUDGMENT FOR MONEY
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Rccord for tillS Party;
Stephen.S. Zubrow
?a, rD, No;043523
hmesF. Rosenberg
Pa. ID. No. 53552
Mr\Rc);S &. SHAPIRA. LLP
fino No 145
One Oxford Centre, 35"" Floor
30! Grant:Streel
Pittsburgh,l'A 15219
(412) 471-3490
IN THE COURT OF COMM( 1l\:'U:,'\'s
OF CUMBERlAND COUNTY, PENNSVI "ANI.<\
PR CAPITAL CITY LIMITED PAR'fNEHSHlP, )
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CI\V, DrVI~ION
Plaintiff,
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No.
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CAPITOL TUXEDO, INC"
Defendant.
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COMPLA{NT IN CONJ!]:S~IQ1H)F J!IDGMENTFOR MONEY
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1, Plaintiff, PR Capital City Limited Partnership, i" a Pennsylvania limite<\i;!
partnership, with an address ofclo PRE1T Sef',ke" l.tc, 200 South Broad Street; Third FlOOr,
Philadelphia, P A 19102. PR Capital City Limited Partner.hip IS. the owner of the Capital $ty
Mall in Camp Hill, Pennsylvania and is the snccessor by name (:hange to Crown American,
Capital City Associates, L.P,
2. Defendant Capitol Tuxedo, Ine is J P<:lIIJ.Sylvania:.corporation. Defendant's last
known address is 325 South 18th Street, Harrisburg, P A 17010
3. The original. instrument evidencing t.he obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defendant which
is a true and correct reproduction ofthe original, is attached hereto and marked as Exhibit 1,
and is incorporated herein by reference. The iustrwnent is a Lease dated January 24, 2000 (the .
"Lease"). Defendant is the Tenant under the Lease, and as noted above, Plaintiff is the Landlord
and the successor by name change to Crown American Capital City Associates, L.P. under the
Lease. This confession for money judgment is wan anted by Section 19.06 of the Lease.
4. Plaintiff avers that judgm"rl on the Lease IS not being entered by confession
against a natural person in connection wIth a CCl1sumer credIt transaction. The underlying (,ease
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of real property at Capital City Mall, Camp HUt. Pe:tmsylvania, was made as a CtJlmnL'rcial
transaction.
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5.
Crown American Capital City Associates, LP. assigned the Lease to Plaintifl
6. Judgmerlt has not be"n entered on the Lease in this or any other jurisdiction.
7, Section 19.01 (a) ofthe Le,ase provides that an "Event of Default" occurs. whe.n
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"Tenant defaults in the payment of any sum of money (whether Fixed Minimum Rent, TMRent,
Tenant'~ Proportionate Share of Operating Costs, the Utility Charge, Promotion Charge, ,.,'"
additional Rent orotherwise)wl,ell.ducallJ sw.:h default shall continue fur apcriod;()f~;tha.')
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ten (10) d'lYS after the date said'p<tyment l:< due:"
tl.
Plaintiffavt~rs..ihat Ih~ I ,ea<i" authorizes the entry of J;j(jgmCllt fOl,111onl.-'Y a&~ il/'o
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E vent or Udalllt thereon,,:A1', .EVL'l; t \1 f DfJau 1IlJa, oc.curred undedlte Le:t'!(l. in .that Defcrn>N1t. .
'.~
fai I.x! tn JI'1.1ake paY!11erotofrent and other charges which were due from approximately' .h~ ,)f
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2006 forwaro. Plaintiff gavf' written notice of the failure to pay on, among other'datflfc, June 21, .
;';}'~
2006, and August 10,2006, and more than ten days have passed after Defendaht WIIS sent uot!<;e
of its failure to pay without making the missing payments.
9. The itemization of the amount presently due under the Lease and without waivet"
offutute damages is as follows:
Amount due from 6/]/06 through 8/1/06 (Ex. 2)
$ I] ,626.28
Attorneys' fees for enforcement and collectIon (5%)
provided under ~J9.06 of the Lease
$
581.31
Filing Fee
L_19.50
$ 12,22709
TOTAL
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WHEREFORE, Plaintiff, as authorized by n", v..li1"alJt uf attur.1ey wnt;r,r.ed In the Lease,
demands a money judgment against Defendant lulhc t".1'J.l sum of$12,:227,09 plus COst8,
attorneys' fees and interest at the Lease rate from and after the date of \he EllITy of Judgment as
provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: August __, 2006
(\lwYt2
~s:- Zubrow .
J~nlcs Fi Rosenberg- '. '.'
M"RCUS:& SHAPIRAU.P.
_e.
One Oxford Cenw;351hFp ".
301 GrantStreet
Pittsburgh, PA 15219
!4J2) 47J-3490
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CUl1Dsel tor Plaintiff,PR Capt.la!
City Liflllled Partnership
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"INDENTURE OF LEASE"
F. ~ Z_/
THIS INDENTURE OF LEASE, made on theZII day of a.;::. ~9, by CROWN
AMERICAN PROPERTIES, L.P., a Delaware Limited Partners ip, by CROWN AMERICAN
REALTY TRUST, as General Partner, with its offices located at Pasquerilla Plaza,
Johnstown, Pennsylvania 15901 (hereinafter called "Landlord"), and CAPITOL
TUXEDO,INC.,
trading as CAPITOL TUXEDO,
with an address at 325 South 18th Street, Harrisburg, PA 17010,
(hereinafter called "Tenan t"J,
WITNESSETH:
A. Leased Premises.
Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the
store premises (hereinafter referred to as the .premises", "leased premises. or .demised
premises.) outlined in red on the pian attached as Exhibit .B. hereto, now erected or
hereafter to be erected as part of a shopping center to be initially known as Capital City
Mall, 3506 Capital City Mall Drive, Camp Hill, Pennsylvania,
(hereinafter referred to as the "Center", .Shopping Center" or .entire premises. and
initially comprising the area shown in Exhibit "B"), the demised premises being
measured and described by the following dimensions which are measured from the
outside building lines of each wall of the demised premises or, in the case of those walls
separating the demised premises from other stores in the Shopping Center, from the
center lines of such walls: (Room 11434)
Front: Twenty Feet (201
Depth: Forty-Five Feet, Five Inches (45'-5.)
Total Area: Nine Hundred Eight (908) Square Feet
together with the right to the non-exclusive use in common with others entitled to use
same of all such automobile parking Breas, driveways, malls, courts, corridors and
footways, loading facilities and other facilities as may be designated by Landlord from
time to time as more fully set forth in and subject to the terms and conditions of this
Indenture of Lease and the Lease Agreement (hereinafter collectively referred to as the
"Lease"). and to such rules and regulations for the use thereof as may be prescribed
from time to time by the Landlord.
B. Tenn.
The term of this Lease shall be for a period of ten (10) years beginning on the
"commencement date" as established by Section 1.0 1 (a) of the Lease; provided, however,
Tenant's fL,<:ed minimum rental and other charges will commence on ~ 1, 2000,
whether Tenant is open for business or not. (Alrk L
P-P'
Exhibit 1
Upon the commencement of the~erm of this Lease, the Lease Agreement, dated
October 22, 1992, by and between Crown American Corporation, predecessor-in-interest
to Landlord and Capitol Rent-A-Tux, Inc., predecessor-in-interest to Tenant for Room
#434 in the Shopping Center and all amendments thereto ("Existing Lease"), shall
terminate and become null and void; provided that Tenant shall pay all sums due or
accruing under the Existing Lease through its termination date.
C. Fixed Minimum Rent.
Tenant shall pay to Landlord a guaranteed annual mlOlmum rent ("Fixed
Minimum Rent.) as follows: The Fixed Minimum Rent for each of the following periods
during the term of this Lease shall be:
Time Period
Annual Amount
Monthlv Amount
Years 1 - 2
Years 3 - 7
Years 8 - 10
$29,500.00
$31,500.00
$33,500.00
$2,458.33
$2,625.00
$2,791.67
Each such installment shall be due and payable on or before the first day of each
calendar month in the term of this Lease, in advance, at the office of Landlord or at.
such other place as may be designated by Landlord from time to time, without any prior
demand therefor and without any deduction or setoff whatsoever, the first installment
to be paid on the commencement date whether or not the commencement date is the
first day of a calendar month. In the event that the commencement date of the term of
this Lease shall be a day other than the first day of a calendar month, Tenant's first
payment of Fixed Minimum Rent shall be prorated for the fractional month between the
commencement date and the first day of the first full calendar month in the term
hereof, on a per diem basis (calculated on a thirty (30) day month).
D. Percental!e Rent.
In addition to the Fixed Minimum Rent as aforesaid, Tenant, in accordance with
Section 2.01 of the Lease, shall pay to Landlord, as additional rent hereunder
(hereinafter referred to as "Percentage Rent"), and as part of the consideration of the
aforesaid demise, for each lease year in the term of this Lease a sum equal to six
percent (6%) of that portion of Gross Sales (as defined in Section 2.02 of the Lease)
during such lease year which is in excess of the applicable Percentage Rent Gross Sales
Base. The Percentage Rent Gross Sales Base for the following periods within each lease
year shall be:
Percental!e Rent Gross Sales Base
Time Period
Years 1 - 2
Years 3 - 7
Years 8 - 10
$491,666.67
$525,000.00
$558,333.33
E, Use of Premises.
Subject to the provisions of Article V of the Lease, Tenant shall use the leased
premises solely for the purposes of conducting the business of: the sale and rental of
tuxedo accessories, and for no other purpose whatsoever.
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0: \ Legal \ Le slleH\ Ind.Lse-99\ CCM-Capitol T\l.Xcdo.doc
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F, Common Area Pavment.
On the first day of each calendar month, Tenant shall pay to Landlord, in
advance, without demand and without any setoff or deduction, as a minimum payment
on account of Tenant's proportionate share of the Operating Costs (as defined in Article
VII of the Lease) an amount never less than one-twelfth (1/12th) of the product obtained
by multiplying the square feet of floor area of the demised premises by the sum of Five
Dollars and Seventeen Cents ($5.17). If the commencement date hereof shall not be the
first day of a calendar month, Tenant's payment of its proportionate share of Operating
Costs for the fractional month between the commencement date and the first day of the
first full calendar month in the term shall be prorated on a per diem basis (calculated
on a thirty (30) day month) and shall be paid together with the flI'st payment of Fixed
Minimum Rent.
Q, Tenant's Allowance.
The Landlord shall not reimburse the Tenant on account of the cost of
construction of the items designated as Tenant's Work in Exhibit "A' attached hereto,
subject to the terms and conditions set forth in said Exhibit" A".
Tenant is not responsible for the payment of any Landlord-provided Construction
Items; however, Tenant is responsible for the payment of all Service Charges, as
provided in Exhibit "A". Notwithstanding anything contained in Exhibit "A" to the
contrary, Tenant shall not be required to perform any Mandatory Remodeling of the
demised premises unless otherwise required pursuant to Articles IX, X, XVI, XVII or
similar provisions of this Lease.
H. Security Deoosit. - NOT APPLICABLE
I. Tax Rent.
As an initial estimated payment on account of Tenant's proportionate share of
taxes as defmed in Article II of the Lease, Tenant shall pay monthly, in advance, as
additional rent, together with each monthly installment of fIXed minimum rent, without
demand or setoff, an amount equal to one-twelfth (1/12th) of the product obtained by
multiplying the floor area of the demised premises by the sum of $2.00.
J. Marketine: fundI Advertisine:.
Tenant covenants and agrees to become a 'member of any Marketing Fund formed
by the tenants of the Shopping Center and approved by Landlord, and to maintain such
membership throughout the term of this Lease. Tenant further agrees to pay as its
share of the cost of the activities conducted by such association the sum of $.57 per
year for each square foot of floor area contained in the demised premises, subject to CPI
adjustment, as provided in Article XV of the Lease. In no event shall Tenant's payments
increase more than six percent (6%) over the amount paid the immediately preceding
twelve (12) month period.
Tenant shall also pay to Landlord as its contribution to the Advertising Program
for the Shopping Center the sum of $,87 per year for each square foot of floor area
contained in the demised premises. Tenant's Advertising Program payment and
Marketing Fund payment shall be made in monthly installments, together with payment
of Fixed Minimum Rent, and said Advertising Program payment shall be subject to CPl
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D: \ Legal \ Leslie H\ Ind-Lse .99\ CCM-Capitol Tuxedo. doc
adj'lstmen~ in the same manner as Tenant's Marketing Fund payment as provided in
Article XV of the Lease. In no event shall Tenant's payments increase more than six
percent (6%) over the amount paid the immediately preceding twelve (12) month period.
K. Prooortionate Cost of Securitv.
In the event Landlord elects to provide security for the Shopping Center, Tenant
shall pay monthly, in advance, as additional rent, together with each monthly
installment of Fixed Minimum Rent, without demand or setoff, an amount equal to one-
twelfth (I/12th)' of the product obtained by multiplying the floor area of the demised
premises by the amount of $.54.
L. Lease Documents.
In addition to the Indenture of Lease and the Lease Agreement, the following are
attached to the Lease and are hereby incorporated in and made part of the Lease as
fully as though set forth at length in the Lease: Rider, if any, Exhibit "A., Exhibit "B",
and Exhibit "Co.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby,
have caused this Lease to be duly executed the day and year first above written.
(Corporate Seal)
CROWN AJIERICAR PROr&inUliS, L.P",
A DELAWARE L P.AR'I"RERSHIP
BY: CROWN CAR RBALTT
TRUST,ABG PARUU~K
ATTEST: wtJ.fJ~
Ronald P. Rusinak
Secretary
(Corporate Seall
CAPITOL TUXEDO, me.,
D/B/A CAPITOL TUXEDO
ATTEST:
By:
~~~~. -f~
President
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D: \Legal \ LeslieH\lnd-Lse-99\ CCM-Capitol Tuxedo. doc
ARTlCLE I
Section
ARTICLE U
Section
Section
Section
Section
Section
ARTlCLE m
Section
Section
ARTlCLE IV
Section
Section
Section
Section
ARTICLE V
Section
Section
Section
Section
ARTICLE VI
Section
ARTICLE VU
Section
Section
Section
Section
Section
Section
Section
ARTICLE vm
Section
Section
Section
ARTICLE IX
Section
Section
Section
ARTICLE X
Section
ARTICLE XI
Section
Section
INDEX TO LEASE AGREEMI;NT
TERM
1.01
fw
Commencement of the Term ........'.....,.....,...' .........................., I
BERT
2.01
2.02
2.03
2.04
2.05
Percentage Rent ..........................,..'.....,.........,..................,...... I
Gross Sales Defined .................,..........,...........................,.........2
Percentage Rent Statements and Payments .....,......,................. 3
Taxes ...........................,............,...............................4
Additional Rent .............'....................................................... 6
BOOKS OF ACCOURT AKD AUDIT
3.01 Tenant's Records .........................,................,...........................6
3,02 Audit ....,...............................................,...................6
COKSTRUcnOK OF LEASED PREMISES
4.01 Construction by Landlord ..........................................,..............7
4.02 Tenant's Improvements and Fixtures ,...........,.......,...................7
4.03 Financing ...............,..........................'.............................7
4.04 Excuse of Perfonnance .............................................................7
COKDUCT OF BUSIKE8S
5.01 Use of Premises .............................,..........................................8
5.02 Storage .........................,,'............................................8
5.03 Additional Use of the Premises ..,........................,...................... 9
5.04 Rule. and Regulation.....,....,....................................,......,....... 10
GRANT OF COKCESSIOlfS
6.01 Conditions to Oranl................,............................,................... 11
COIOlON AREAS
7.01 Defmition; Control.........,..............................,........,....,............ 11
7.02 Parking Facilities...........,..,.......................,..,........................... 12
7.03 Roof, Walls, Changes and Additions to Center .............,...........12
7.04 Right to Relocate ......,..............,..,............................................ 13
7.05 Expenses ...........................,.......................................... 13
7.06 Common Area Payment .......................................................... 13
7.07 Proportionate Co.t of Security ...............,....,............................ 14
SIGNS; AW1'IIKG8; CA1'IOPIES; FIXIURE8; ALTERATIONS
8.01 Signs, Awnings and Canopies..............................,......,..........., 15
8.02 Property in Demised Premises .............,....................,.............. 15
8.03 Improvements and Alterations......,.......................................... 16
MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES
9.01 Repairs and Maintenance by Tenant.............,....,..,......,........... 17
9.02 Structural Repairs...........,.............,.................,....................... 17
9.03 Surrender of Premi.es .......,..,..,...........,.....,..........,..,............... 18
INDEMNIFICATION; SUBROGATION
10.01 Indemnification and Waiver of Claim ........' ,......................,.....18
INSURANCE
11.0 I Insurance
11.02 [nsurance Provisions..
......,.......19
,..............,..,19
Section
ARTICLE XII
Section
Section
Section
Section
ARTICLE xm
Section
Section
Section
ARTICLE XlV
Section
Section
Section
ARTICLE XV
Section
ARTICLE XVI
Section
Section
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11.03 Effect on Insurance ................,..,.
..,.19
UTILITIES
12.01 Utilities ......................,..................,.,...,..........,.....,...,.20
12.02 Application Cor Utilities............................................,.,............. 21
12.03 Operation oC Heating and Air-Conditioning....................,......... 21
12,04 Utility Charge ................................,...............,..,...............,..21
ESTOPPEL CERTII'lCATB; BUBORDIKATlON; ATTORlQIElIT
13.01 Execution oCEatoppe1 Certificate .........................................'... 21
13.02 Failure to Execute Eatoppel Certificate ..........................,......... 21
13.03 Subordination and Attornment................................................ 22
ASBIGRIIBIIT AIm BUIILB'l'TIIIG
14.01 Assignment and Subletting...................................................... 22
14.02 Application to Assign or Sublet ............................................... 23
14.03 Copy oC Assignment or Sublease .............,...............................24
MERCJL\1IT8' ASSOCIATlO.; PROMOTION F1JIIID; ADVERTISDlG
15m Merchants' Association, Promotion Fund
and Advertising ......................................................................24
DESTRUCTlOIf OF LBA8BD PRBIoUSEB
16.01 Total or Partial DestJ:uction .....................................................26
16.02 Partial DestJ:uction oC Shopping Center..........,..............,..,....... 26
ARTICLE XVII ElIIIlfElIfT DOJIAIK
Section 17.01 Total Condemnation................................................................ 27
Section 17.02 Partial Condemnation......,....................................................... 27
Section 1703 Partial Condemnation oC Shopping Center ..........................,.... 27
Section 17.04 Landlord'. DllIIUlp.................,.......................,..........,........... 27
Section 17,05 Tenanes Damage.............................................................,...... 28
ARTICLE x:vm BANKRUr1'Cl OR IKSOLVE1'ICY
Section 18,01 Bankruptcy or Cnsolvency........................................,............... 28
ARTICLE XIX
Section
Section
Section
Section
Section
Section
Section
ARTICLE XX
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
EVENTS OF DEFAULT; LA1'IDLORD'S REMEDIES
19.01 Event. oC DeCault.........................................,....,...................... 29
19.02 Deliberate Event. oC DeCault .................................................... 29
19.03 Termination .............................,........................................ 29
19.04 Right oC Possession............................,..................................... 30
19,05 Additional Remedie. oC Landlord ............................................. 30
19.06 ConCession oC Judgment.......................................................... 31
19.07 Waivers ..........................................,........,..................32
MlSCELLA1'IEOUS
20.01 Access by Landlord .............................,...................................32
20.02 Holding Over ...,................................................,............,....33
20.03 Succes.ors ....................................,....., ..'.............,.......... 33
20.04 Quiet Enjoyment ..........................,..............,..,..."......,............ 33
20,05 Waiver ................,........,.....,...........,....... ...,............... 33
20,06 Custom and Usage,.........,................................,...,..................33
20.07 Accord and SatisCaction.................,...................,.................,...34
20.08 Performance oCTenant's Covenant. .................'........,.............. 34
20,09 Entire Agreement ...'..................,....,.........",.......'...".. ...,......... 34
20.10 No Partnership ......................... ...'.........,..................,............ 34
20.11 Notices ............,............,..,.......,.....,...,.........,.........,.,.3S
20,12 Captions and Index.........,....................,...........................,...,.. 3S
20.13 Tenant Defined; Use of Pronoun ....................................,....,.... 3S
Section 20.14
Section 20.15
Section 20,16
Section 20.17
Section 20.18
Section 20.19
Section 20.20
Section 20.21
Section 20.22
Section 20.23
Section 20,24
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Negation (,I' Personal Liability,......................,.....,...,.....,.........., 35
Effect of Governmental Limitation on Rents and
Other Charges ............,................,......,.,.,..................,..,.....,. 36
Partial [nvalidity; Separate Covenants .....,...........,......,..........., 36
Recording ........ ..... ........,.... ............,.,.... ...,. .......,.........,.. 36
Brokerage Commission...... ..,........., .... ..'.... .... ..... ..,.......,....'..... 36
Construction ,................. ........,.,............ .... ..,.............. ........ 36
Perpetuity .... .... ............. ........... ....,.... .,... ........................ 37
Choice of Law........................................,............................, 37
Joint Preparation ,.,..........................,........,.......,.....,......,........ 37
Interlineation ,.,..... .....,..,......... ...... ..,.. .... .......'... .................. 37
Submission of Lease to Tenant................,....................,.......... 37
LEASE AGREEMENT
ARTICLE I
TERM
SECTION 1.01. Commencin" of the Tenn.
(a) The "original tenn' of this Lease (hereafter defined) and Tenant's obligation to pay
rent and occupy the demised premises in accordance with the tenns hereof shall commence on
the earlier of the following dates (such earlier date being herein caned the .commencement date.);
(1) on the date set forth in Section "B" oC the Indenture of Lease or (2) the date on which Tenant
shall first open the demised premisea for business.
(b) At any time after the commencement date of the tenn of the Lease the parties
shall execute and deliver to each other, at the option of Landlord, either an instrument in
recordable form or a letter agreement prepared by Landlord, wherein Tenant shall: (1) certify that
the Lease is in full force and effect and (2) certify the commencement and termination dates of the
original term of this Lease.
(c) This Lease and the tenancy hereby created shall cease and determine at the end
of the term hereof without the necessity oC any notice from either Landlord or Tenant to terminate
the same, and Tenant hereby waives notice to vacate the premises and sgrees that Landlord ahall
be entitled to the benefit oC all provisions oC law respecting the summary recovery 01 poeleuion of
premises from a tenant holding over to the same extent as if ltatutory notice had been given.
(d) The period commencing on the date hereof and terminating on the date
immediately prior to the commencement date is hereby reCerred to as the "initial term", and the
period Crom the conunencement date to the date oC the expiration or earlier termination oC this
Lease shall be referred to herein as the "original term.. For the purposes of this Lease the words
"the term of this Lease. and .tenn hereol" shall be deemed to mean the initial term and the
original term of this Lease and all extensions or renewals thereof.
ARTICLE n
REI'IT
SECTION 2.01. Percenta"e Rent.
(a) The Percentage Rent shall be payable without prior demand and without any
setoff or deduction whatsoever at the times set forth hereinafter at the place then fiud Cor the
payment of Fixed Minimum Rent.
(b) Not later than thirty (30) days after the expiration of the first .Jeue year"
(hereinafter defined) of the term hereoC and, unless Landlord exercises its option .. let forth in
the next sentence hereof, thereafter not later than thirty (301 days after the ezpiration of each
subsequent lease year in the tenn hereof. Tenant shall pay to Landlord the Pen:en.. Rent due
for the lease year in question. In the event that Percentage Rent shall be payable .... my lease
year in the term hereof, after the expiration of the flJ"St lease year containing twelve 112) complete
calendar months, Landlord. at Landlord's option to be exercised by written notice to Tenant, may
require Tenant to pay, as additional rent, together with each monthly ins'a"-t of Fixed
Minimum Rent due hereunder commencing with the first such payment due ;~'"-l~tely after
the receipt by Tenant of such notice an amount equal to one-twelfth (1/12th) of eicbl;y percent
(80"10) oC the Percentage Rent payable for the immediately preceding lease year. 'l1Jereafter.
Tenant shall continue to pay such estimated payments of Percentage Rent together w:ith each
monthly installment of Fixed Minimum Rent due for each calendar month in the term hereoC;
provided, however, that the amount of such estimated monthly payments of Pemeatace Rent
may, at Landlord's option or Tenant'. option, be adjusted at the expiration of each su'-quent
lease year after receipt by Landlord of Tenant's statement referred to in Section 2.03(b) to an
amount equal to one-twelfth (1/12th) of eighty percent (80%) of the Percentage Rent payable for
the lease year immediately preceding such adjustment and commencing with the payment of
Fixed Minimum Rent due immediately after receipt by Tenant of notice of such adjustment.
Tenant shall continue to pay such adjusted amount until the next adjustment Although
estimated Percentage Rent shall be payable monthly as aforesaid, the final computation and
payment shall be on an annual basis,
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(c) Whenever used in this Lease the words "lease year" shall mean the twelve (12)
full calendar months of the term commencing with the first day of the term of this Lease, provided
the commencement of the term of this Lease is on the first day of the month or, if the term of this
Lease commences on any day other than the first day of the month, then with the first day of the
month immediately following the commencement date and each succeeding twelve (12) month
period. In the event that the first or last lease year shall consist of less than twelve (12) full
calendar months, the Percentage Rent Gross Sales Base for such shorter lease year shall be
deemed to be that portion of such Sales Base obtained by multiplying the applicable Percentage
Rent Gross Sales Base set forth in the Indenture of Lease by a fraction, the numerator of which
shall be the number of days contained in such shorter lease year and the denominator of which
shall be three hundred sixty-five (3651. In the event the amount of the Percentage Rent Gross
Sales Base set forth herein is subject to adjustments during the term of this Lease, and the date
on which such adjustment is to occur (hereinafter referred to as the .Rental Adjustment Date") is
other than the fll'st day of a lease year, the Percentage Rent Gross Sales Sue for the lease year in
which the Rental Adjustment Date shall fall shall be the sum, of: la) the lesser Percentage Rent
Gross Sales Base set forth in the Indenture of Lease multiplied by a fraction, the numerator of
which shall be the number of days in the period commencing on the flfst day of the lease year in
which the Rental Adjustment Date shall fall and ending on the day immediately prior to the
Rents! Adjustment Date and the denominator of which shall be three hundred sixty-five (365),
plus lbl the greater Percentage Rent Gross Sales Base set forth in the Indenture of Lease
multiplied by a fraction, the numerator of which shall be the number of days in the period
commencing on the Rental Adjustment Date and ending on the last day of the lease year in which
the Rental Adjustment Date shall fall and the denominator of which shall be three hundred sixty-
five (365).
(d) It is expressly understood and agreed that Landlord does not consider the Fixed
Minimum Rent in itself a fair and adequate rental for the demised premiaes and would not have
entered into this Lease unless Tenant had obligated itself to pay Percentage Rent which Landlord
expects to supplement the Fixed Minimum Rent to provide such fair and adequate rental return.
Tkeret8re, il, in MM sf al least tl!~9 ~) Bf ., fiFBt tlvee (1) NIllea.1 Ye&nI iR die te.h.. klred.
Tef\8:Ilt IlleR Ret RlP."' BeeR 8BH.gEKeEl '8 ,ay PeFSIRHIW ReRt is tA. aJBlNBt 8. 8M in the
ladeRNre fie 1:..88S8, I._UUBAI rna~ at its SpliSR, (1) aARinate this ~eH' \1'88 WFi$UR ReSee te
Teaant gi~~R at any time within 8m (6) IRsathe after the neeip' ~ tanjleF4 ef 'fenant'e llDRU.al
statement af CFe88 iaJt8 fST SliSR thiRI fullleaee year, (SF, if eeFlier, the Ii,.. date theHsq anQ
this bease shall teRRinate &:nEt Be BUll and \~aid. Slmy (eg) dllye alter Eleli-:Bpy af &\ish. Rasael 9F ~)
deenaa8 the PefE8Rtage Rent Cross Eales Sase Bet fer-th in. EeetisR 1Ig' af the IlulelltuFe af bease
te an QlRBuat IeI'll&! te the CFBS8 galea repeFt8i1 9y T-eRMt at tAB eRd sf the lease j ear
immediately preeadiRg the date SA wlliek landlsF.Ei Mabes the steelieR kereURssr. TeRant shall
tkereaCteF pay t8 banliler4 Pereeatage ReRt in luelSR sf the seefeased Pefeea....S! ReRt GFOBS
Sales 8as8 fer BfteR lease year thU1.Rg the remainder el the teffR Be thie Lease (iBBkuling the leasl
yelH" ehuiRg wilieR the PefseRtage ReRt Cre&8 gales BaSI h.as \ieeft desreasts), -ad ea. lease
yelH" tRerealt.r.
SECfION 2.02. Gross Sales Defmed.
(al The words "Gross Sales' as used herein shall mean the gross amount of all sales
of all goods, wares and merchandise sold and all services performed by Tenant and/or by any
subtenant, licensee or concessionaire in, at or from the demised premises (including, but not
limited to, catalogue sales made at or from the demised premisesl, whether for cash, credit or
other consideration, with such other consideration being determined at fair market value and
financing charges on all Gross Sales (without reserve or deduction for inability or failure to
collect) including, but not limited to, such sales and services (11 as a result of transactions
originating in, at or from the demised premises, whether deUvery or performance is made from the
demised premises or from some other place; (2) pursuant to mail, telephone, telegraph, closed TV
Circuit, Dial-A-Buy, electronic, video, computer, or other technology-based systems and other
devices, automated or otherwise, whether existing now or developed in the future whereby orders
are received at or supplied from the demised premises or (31 which Tenant or any subtenant,
licensee or concessionaire in the normal course of its business would attribute to Its operations at
the demised premises. Gross Sales also include all deposits not refunded to purchasers, Each
sale upon installment or credit shall be treated as a sale for the full price in the month during
\'.rhich such sale shall be made, irrespective of the time when Tenant shall receive payment
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therefor,
(bl The following shall be deducted fTOm Gross Sales if originally included therein. or
excluded therefrom, as the case may be, provided separate records are supplied supporting such
deductions or exclusions, namely: (II any exchange of merchandise between stores of Tenant
where such exchange is made solely for the convenient operation of Tenant's business and not for
the purpose of consummating a sale made in, at or from the demised premises, (2) returns to
shippers or manufacturers, (3) cash or credit refunds to customers on transactions otherwise
included in Gross Sales, (41 sales of fIXtures, machinery and equipment after use thereof in the
conduct of Tenant's business in the demised premises, (5) amounts collected and paid out by
Tenant for any sales tax imposed by any duly constituted governmental authority provided such
tax is both added to the selling price as a separate and distinct amount in addition to the regular
price of Tenant's merchandise and paid to the taxing authority by Tenant (but not by any vendor
of Tenant), (6) the amount of any discount on sales to employees, and (7) receipts from the
pennitted pay telephone and vending machines referm! to in Section 5.03(rl. No value-added tax,
and no franchise or capital stock tax and no income, gross receipts or similar tax based upon
income. profits or gross receipts as such shall be deducted from Gross Sales.
SECTION 2.03. Percentue Rent Statements.
(a) No later than the thirtieth (30th) day after the end of each calendar month in the
term hereof, Tenant shall submit to Landlord an itemized and accurate written statement signed
by Tenant, its duly authorized ollicer or duly authorized representative, rellecting the full amount
of Gross Sales made during the preceding calendar month. If the commencement date hereof
shall not be the fint day of a calendar month, the period between the commencement date and
the fint day of the fint fuD calendar month in the term and Tenant's Gross Saletl during such
period shall be added to the fint calendar month for both the purpose of the computation of
Percentage Rent and the purpose of reporting of Gross Sales.
(bl Not later than the date set forth in Section 2.01(b) hereof, Tenant abaU submit to
Landlord a complete written statement of Tenant's Gross Sales for the Precedin& Ieaae year in
such reasonable detail as requested by Landlord, certified by Tenant, its duly authorized ofticer or
representative. IlseBRlpanied 8y a eeFtified etatemlat sigRId ~~ TeR8.Rt'e RW.'IaFIJr .Bllged
iRdapeRdeRt ,nililis aS8811RtaRt stating that the Gross Sales reported by Tenant are in accord with
the amount thereof set forth on Tenant's regularly maintained books and records.
Simultaneously with the delivery of the statement referm! to in the preceding sentence, Tenant
shall pay to Landlord the full unpaid balance of the Percentage Rent due and payable for such
lease year, if any. In the event Tenant is making estimated payments of Percentage Rent and
Tenant is not then in default hereunder or otherwise indebted to Landlord, any excess of
estimated Percentage Rent that Tenant may have paid for such lease year over the Percentage
Rent actually due for such lease year shall be refunded to Tenant within thirty (30) days;
provided, if such overpayment is for the last lease year, Landlord shall not be obligated to refund
to Tenant the amount of such overpayment until Tenant has fully performed all of ita obliptions
under the Lease, is not indebted to Landlord and haa vacated the demised premi8ea in
accordance with the provisions of this Lease. In the event Tenant is indebted to LaIldlord for any
reason whatsoever, Landlord may deduct such amount owed from such overpayment
(c) The acceptance by Landlord of payments of Percentage Rent or reporta thereof
shall be without prejUdice. and shall in no event constitute a waiver of Landlord's ri&hts to claim
a deficiency of such Percentage Rent or to audit Tenant's books and records as set forth in
Section 3.0 I hereof.
(d) If Tenant shall fail to deliver such statement as required by Section 2.03(b),
within the period set forth therein and such failure shall continue for ten (101 days after the date
of written notice of such failure from Landlord, Landlord shall have the right thereafter to employ
a certified pUblic accountant to make such examination of Ten ant's books and recorda as may be
necessary to certify the amount of Tenant's Gross Sales for said lease year, the certification so
made shall be binding upon Tenant and Tenant shall promptly pay to Landlord the cost of the
examination, together with the full balance of Percentage Rent due and payable for said lease
year, In addition, Landlord may treat the failure to deliver such statements within ten (101 days
after the aforesaid notice as a Deliberate Event of Default.
(el Tenant's obligations under this Section 2.03 shall survive the expiration or earlier
termination of this Lease.
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SECTION 2.04, Taxes.
(a) For the purposes of this Section 2,04, the word 'taxes" shall include all taxes
attributable to improvements now or hereafter made to the Shopping Center or any part thereof
or attributable to the present or future installation in the Shopping Center or any part thereof of
fIXtures, machinery or equipment, all real estate taxes, assessments, roll-back taxes or
assessments, water and sewer rents and other governmental impositions and charges of every
kind and nature whatsoever. nonrecurring as well as recurring. special or extraordinary as well
as ordinary, foreseen and unforeseen, and each and every installment thereof, which shall or may
during the term of this Lease be levied, assessed or imposed, or become due and payable or
become liens upon, or arise in connection with the use, occupancy or possession of, or any
interest in, the Shopping Center or any part thereof, or any land, buildings or other
improvements therein and all costs and fees incurred by Landlord in contesting and/or
negotiating said taxes, less all amounts paid as taxes to Landlord by the occupants of any
"Separately Assessed Premises" (as defmed in Section 2.04(d) hereol). The word "taxee" shall not
include any charge, such as water meter charge and sewer rent based thereon, which is
measured by the consumption by the actual user of the item or service for which the charge is
made.
fb) For each "'fax Year" (as defmed in Section 2.04(e) hereol) during the term of this
Lease, Tenant shall pay to Landlord as additional rent (hereinafter called "Tax Rent"), the amount
obtained by multiplying the total of all taxes payable during such Tax Year by a fraction, the
numerator of which ahaJI be the square feet of floor area of the demised premises and the
denominator of which ahaJI be the square feet of all "leasable floor area" (as defined in Section
2.04(dl hereol) in the Shopping Center computed as of each date Landlord bas a right under
Section 2.04(clto bill Tenant for an instaUment of Tax Rent. On account of Tax Rent, Tenant
shall pay monthly, in advance, as additional rent, together with each monthly inatallment of
Fixed Minimum Rent. without demand or setolI, the amount set forth in Section "I" of the
Indenture of Lease. Such amount may be acljusted by. Landlord at any time during the term
hereof to an amount equal to on....twelfth (1/12) of the Tax Rent payable by Tenant for the
preceding Tax Year. If Tenant's payment on account of Tax Rent for any Tax Year exceeds the
actual amount payable by Tenant as Tax Rent for such Tax Year and Tenant ill not in default
hereunder or otherwise indebted to Landlord, Landlord ahaJJ credit such excess to Tenant's future
tax obligations; provided, if such overpayment is for the last Tax Year, Landlord shall not be
obligated to refund to Tenant the amount of such overpayment until Tenant has fully performed
all of its obligations under this Lease, is not indebted to Landlord and has vacated the demised
premises in accordance with the provisions hereof. In the event Tenant is indebted to Landlord
for any reason whatsoever, Landlord may deduct such amount owed from such overpayment.
(c) Landlord shall have the right to bill Tenant for Tax Rent during each Tax Year
after each receipt by Landlord of a bill, assessment, levy, notice of imposition or other evidence of
taxes due or payable all of which are hereinafter collectively referred to as a "tax bill' (whether
such bill is a fmal bill, an estimate of annual taxes or represents a tax bill based upon a fmal or
partial assessment or determinationl. Tenant shall pay the balance of its Tax Rent within thirty
(30} days of receipt from Landlord of a written statement setting forth the tuea Cor which
Landlord has received a tax bill, Tenant's share of taxes, and Tenant's payments theretofore made
an account of Tax Rent. In making the computations as aforesaid, a tax bill or photocopy thereof
submitted by Landlord to Tenant shall be conclusive evidence of the amount of the t.axes included
in the computation of the Tax Rent in question; provided, however, Landlord shall have the right
to bill Tenant for Tenant's, share of the Tax Rent for the last lease year in the term hereof whether
or not Landlord shall theretofore have received a tax bill covering the period from the date of the
tax bill which formed the basis of the most recent installment on account of Tax Rent billed to
Tenant to the expiration of the term hereof. If Landlord has not received a tax bill for such
period, Landlord shall estimate the amount of such last installment of Tax Rent on the basis of
information contained in the tax bill most recently received by Landlord, subject to adjustment
when Landlord receives a tax bill which includes the period frOm the date of such tax bill to the
expiration of the term hereof. Tenant shall pay such adjusted amount upon billing by Landlord.
(dj For the purposes of this Lease, the words "Separately Assessed Premises" shall
mean only each of the following portions of the Shopping Center which are in fact separately.
assessed or for which the amount oC taxes actually assessed is readily ascertainable or which are
used in connection with the operation oC a department store or portions of the Shopping Center
which are owned, leased to or otherwise occupied by a department store or portions of the
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Shopping Center which are owned, leased to, or otherwise occupied by a variety or specialty store.
For purposes of this Lease a "variety or specialty store" is an occupant which leases or occupies
15,000 square feet or more of building space in the Shopping Center. For the purposes of this
Lease the words "leasable floor area" shall mean the square feet of floor area in enclosed bUildings
which are erected on portions of the Shopping Center other then Separately Assessed Premises
and which are designed exclusively for use and occupancy by tenants other than occupants of
Separately Assessed Premises and which are open for business by such tenants.
Ie) For the purpose of this Lease the words "Tax Year" shall mean the twelve {l2) full
calendar months of the term commencing with the January 1st immediately following the
commencement date and ending December 31st of such calendar year and each SUcceeding
twelve (12) month period thereafter commencing in the term of this Lease; provided, however, the
first Tax Year shall commence on the commencement date and terminate on the immediately
succeeding December 31st
(Q If for reasons other than Tenant's default the term of this Lease terminates on a
date other than the last day of a Tax Year, Tenant's Tax Rent shall be equitably pro-rated.
Notwithstanding anything herein to the contrary, for the purpose of computing the Tax Rent due
for the first Tax Year, all taxes (equitably pro-rated) payabte during the calendar year in which the
first Tax Year shall fall shall be deemed payable during the fIrSt Tax Year.
(g) If, after Tenant shall have made the required annual payment of Tax Rent,
Landlord shall receive a refund of any portion of the taxes included in the computation of such
Tax Rent provided Tenant is not then in default hereunder, Landlord shall credit to Tenant that
percentage of the net refund after deducting all costs and expenses (including. but not limited to,
attorneys' and appraisers' fees) expended or incurred in obtaining such refund, which the portion
of the taxes in question paid by Tenant bears to the entire amount of such taxes immediately
prior to the refund. Tenant shall not institute any proceedings with reapect to the asS(',sed
valuation of the Shopping Center or any part thereof for the purpose of securing a tax reduction.
In the event the Landlord shall retain any consultant to negotiate the amount of taxes, tax rate,
assessed value and/or other factors influencing the amount of taxes and/or institute any
administrative and/or legal proceedings challenging the tax rate, assessed value or other factors
influenCing the amount of taxes, whether or not such action results in a reduction in the amount
of taxes, Tenant's Tax Rent shall include the portion of the aggregate of all such reasonable fees,
reasonable attorneys' and appraisers' fees and all disbursements, court costs and other similar
items paid or incurred by Landlord during the applicable Tax Year with respect to such
proceedings which is obtained by multiplying the aggregate of such sums by the fraction set forth
in Section 2.04(b) hereof.
(h) If at any time during the term of this Lease, under the laws of anyone or more
jurisdictions in which the Shopping Center is located. a tax, imposition, charge, assessment, levy,
excise or license fee is levied on, imposed against or measured, computed or determined, whether
as a substitute or not for the whole or any part of the taxes now levied, assessed or imposed on
real estate as such, there shall be tevied, assessed or imposed (11 a tax on the rents received from
such real estate, or (21 a license fee measured by the rents receivable by Landlord from Landlord's
Parcel or any portion thereof, or (3) a tax or license fee imposed upon Landlord which is otherwise
measured by or based in whole or part upon Landlord's Parcel or any portion thereof, or (4} an
income or franchise tax, then the same shall be included in the computation of taxes hereunder,
computed as if the amount of such tax or fee so payable were that due if Landlord'" Parcel were
the only property of Landlord subject thereto. In addition to the foregoing, ahoutd any
governmental authority acting under any existing or future law, ordinance or regulation, levy,
assess or impose a tax, excise and! or assessment upon or against this Lease, the execution
hereof and/or the Minimum Rent, or any item of additional rent payable by Tenant to Landlord
whether by way or substitution for or in addition to any existing tax or otherwise, and whether or
not evidenced by documentary stamps or the like, Tenant shall be responsible for and shall pay
such tax, excise and/or assessment, or shall reimburse Landlord for the amount thereof, as the
case may be.
(i) Tenant's obligations under this Section 2.04 shall survive the expiration or earlier
termination of the term of this Lease.
m In the event of any dispute as to the fioor area in the Shopping Center or any
portion thereof (other than the leased premises which shall be determined by the provisions of the
Indenture of Lease). the determination of Landlord's architect shaH be binding upon the parties.
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SECTION 2,05. Additional Rent.
All sums of money or charges required to be paid by Tenant under this Lease. whether or
not the same are designated "additional rent", shall for all purposes hereunder be deemed and
shall be paid by Tenant as rent. If such amounts or charges are not paid at tbe time provided in
tbis Lease, they shall nevertheless, if not paid when due, be collectible as rent with the next
installment of Fixed Minimum Rent thereafter falling due hereunder and shall bear interest from
the due d!lte thereof to the date of payment at the highest rate allowed by l!lw.
ARTICLE m
BOOKS OF ACCOUBT AKD AUDIT
SECTION 3.0 I. Tenant's Records.
(!l) Tenant covenants and !'grees th!lt the business of Tenant and of any subtenant,
licensee or concessionaire upon the demised premises sha1l be operated 80 that a duplicate dated
sales slip, dated inYllice or dated cash register receipt, serially numbered, shaH be issued with
each sale or transaction, whether for cash, credit or exchange, and to record all cash sales Tenant
shall utilize, or cause to be utilized, cash registen equipped with sealed continuous total or such
other devices for controlling sales as Landlord shall approve. Furthermore, Tenant shall keep at
all times during the term hereof, at the demised premises or at the general office of Tenant, full,
complete and accurate books of account and records in 8CCOrdance with accepted a.c:counting
practices with respect to all operations of the business to be conducted in or Cram the demised
premises including. without limitation, the recording of Gross Sales and the receipt of all
merchandise into and the delivery of all merchandise Cram the demised premises during the term
hereof and shaD retain such books and records, copies of all tax reports submitted to the
appropriate taxing authorities, as well as copies of contracts, vouchers, checks, inventory records,
dated cash register tapes and other documents and papers in any way relating to the operation of
such business (all of which are hereinafter collectively referred to as "books and records"), for at
least three (3/ years from the end of the lease year to which they are applicable, or, if an audit is
commenced or if a controversy should arise between the parties hereto regarding the rent payable
hereunder, until such audit or controyeray is terminated even though such retention period my
be after the expiration of the term of, or earlier termination of, this Lease. Such books and
records shall at all reasonable times during the aforesaid retention period be open to the
inspection of Landlord or its duly authorized representatives, who shall have full and free access
to such books and records, the right to sudit such books and records and the right to require of
Tenant, its agents and employees, such information or explanation with respect to such books
and records as may be necessary for a proper examination and/ or audit thereof.
(hI In the event Tenant violates the provisions of Section 3.01(a) and as a result of
such violation, Landlord, or its duly authorized representative, is unable to conduct a proper
examination and/or audit, the parties agree that Landlord shall have been deprived of an
important right under this Lease and, as a result thereof, will suffer damages in an amount which
is not readily ascertainable and thus, in such event, Landlord, in addition to and not in lieu of
any other remedies which Landlord has under this Lease, at law or in equity, shall have the right,
at its option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty
percent (20%1 of the greater of (al Percentage Rent reported for the period or periods in question,
or (h) the annual Fixed Minimum Rent payable for the period or periods in question.
SECTION 3.02. Audit.
If the examination and/or audit referred to io Section 3.01 shall disclose that Tenant has
understated its Gross Sales by 9Re ~eF.eRt (l%jtwo percent (2%) or more for the period being
examined, Tenant shall pay to Landlord, upon demand, the cost of such examination and/or
audit in addition to the deficiency in Percentage Rent which shall be payable io any event. In
addition, Landlord may treat the existence of such liability as a Deliberate Event of Default.
ARTICLE IV
CONSTRUCTION OF LEASED PREMISES
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SECTION 4.01. Construction bv Landlord.
Landlord, at its cost and expense, shaH construct the demised premises incorporating in
such construction all item of work described as Landlord's Work in Exhibit "A" attached bereto
and made a part hereof (all such items are hereinafter collectively referred to as "Landlord's
Work"). Landlord shall have the exclusive right to determine the architectural design and the
structural, mechanical and other standard details and specifications of Landlord's Work,
including, but not limited to, the type of materials and the manufacturer and supplier thereof.
SECTION 4.02. Tenant's Imnrovements and Fixtures.
(a) Within thirty (30) days after Landlord's architect provides Tenant with Outline
Plans for the demised premisea, Tenant shall furnish to Landlord, for Landlord's approval,
complete working drawings and specifications, pursuant to Exhibit "A".
(hI Within ten (101 days after the notice of approval of Tenanh complete working
drawings and specifications by Landlord's architect, Tenant shall, at its sole cost and expense,
subject to any provisions for reimbursement set forth in the Indenture, commence and thereafter
promptly complete all the work and other requirementa imposed upon Tenant in Exhibit "A", (aI I
such items being herein referred to as "Tenant' a Work"). In the event Landlord, on Tenant's
behalf, shall perform any work or install any equipment included in Tenant's Work, Tenant,
within futeen (15) days after receipt of a bill therefor, sha1l pay to Landlord, as additional rent, a
sum equal to all sums paid and costs incurred by Landlord in performing such work and/or
installing such equipment plus administrative costs of Landlord in a aum equal to twenty percent
(20%1 of such sum and/or coats. Notwithstanding anything contained in this Section 4.02 to the
contrary, Landlord shaD not be responsible or liable to Tenant, its agents, servants, employeea,
licensees, or contractors, or their respective agents, servants, employees, licensees or contractors,
for any loss or damage to the properl;y of such party occurring prior to or subsequent to the
commencement of the term. Nothing in this Lease shall be construed as in any way con.tituting
a consent or request by Landlord, expressed or implied, by inference or otherwise, to any
contractor, subcontractor, laborer, or materialman for the performance of any labor or the
furnishing of any materials for any specific or general improvement, alteration, or repair of or to
the demised premises or to any buildings or improvements thereon, or to any part thereof.
SECTION 4.03. Financinll.
Landlord reserves the right to sever the ownership of or title to the various sections of the
Shopping Center and/or to place mortgages on said sections, in which case the right of Tenant
and other tenants in the Shopping Center will be preserved by a written declaration or agreement,
to be executed by Landlord and duly recorded, creating mutual, reciprocal and interdependent
rights to use the parking and other common areas and the utilities and facilities needed for the
full use and enjoyment of the demised premises by Tenant and other tenants or occupants in the
Shopping Center without impairing any of the duties and obligations of Landlord to Tenant under
this Lease. Tenant shall execute from time to time such instruments rea80nably required by
Landlord and its mortgagee to effectuate the provisions of this Section 4.03.
SECTION 4.04. Excuse of Performance.
Notwithstanding anything in this Lease to the contrary, if Tenant shall be delayed or
hindered in or prevented from performance of any act required hereunder by reason of any strike,
lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military
or usurped power, sabotsge, governmental regulations or controls, failure of power, inability to
obtain any material or service, Act of God or other reasons of a like nature not related to the fault
of Tenant, then performance of such act by Tenant shaH be excused for the period of the delay
and the period for the performance of any such act by Tenant shall be extended for a period
equivalent to the period of such delay; provided, however, the foregoing provision of this Section
4.04 shall not excuse Tenant from the prompt payment of Fixed Minimum Rent, Percentage Rent,
Tax Rent, additional rent or any other payments required by the term of this Lease.
Notwithstanding anything in this Lease to the contrary, Landlord shall not be deemed in default
with respect to the perfonnance of any of the terms, covenants and conditions of this Lease if
Landlord's failure to perform such terms, covenants and conditions is due to any strike, lockout,
labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military or
usurped power, sabotage, governmental regulations or controls, failure of power, inability to
obtain any material, service or financing, Act of God, fire or other casualty or other cause,
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whether similar or dissimilar to those enumerated in this Section, which is beyond the reasonable
control of Landlord,
ARTICLE V
CONDUCT OF BUSll'fESS
SECTION 5.0 I. Use of Premises.
(a) Except as otherwise specifICally provided herein, commencing on the
commencement date and thereafter for the balance of the term o( this Lease, Tenant shall
continuously occupy and use the demised premises 80Iely for conducting the business specified
in the Indenture of Lease as the permitted use, and will not use or permit or suffer the use o( the
demised premises for any other business or purpose. In addition, Tenant agrees that Tenant
shall not operate or cause or permit to be operated any catalogue, mall, Or telephone order sales
in or from the demised premises except the incidental aaJe of merchandise which Tenant is
permitted to sell over the counter to customers in the demised premises pursuant to the
permitted use set forth in the Indenture of Lease. The authorization of the use of the premises for
the business purposes set forth in the Indenture of Lease does not constitute a representation or
warranty by Landlord that any particular use of the premises is now or will continue to be
permitted under applicable laws or regulations.
(h) Tenant shall not permit, aI10w or cause any of the following to be conducted in
the demised premises: any public or private auction, or any aaJe which would indicate to the
public that Tenant is banlaupt, is going out of business, or haa lost its lease. Tenant shall not
use or permit any use of the demised premises, except in a manner consistent with the general
high standards of merchandising in the Shopping Center, nor shall Tenant's advertising indicate
or infer that Tenant is operating its business in a manner which is not consistent with the general
high standards of merchandising in the Shopping Center. Nothing contained in this Section
5.0 I (hI shall affect or is intended to a1fect Tenant's pricing policies.
(cl Because the adequacy o( the rental hereunder is dependent upon Tenant's Gross
Sales whether or not Percentage Rent is payable hereunder, Tenant agrees that commencing with
the commencement date and thereafter throughout the term of this Lease, Tenant will
continuously, actively and diligently operate or cause the permitted business to be operated in
good faith and in an efficient, businesslike and respectable manner, maintaining in the demised
premises a full staff of employees and a full stock of seasonable merchandise of the qualit;y', kind,
type and breadth which Tenant usually sells, and employing Tenant's best continual efforts and
abilities to the end that the maximum Gross Sales which can rea80nably be produced Cram the
demised premises shall be produced. Tenant shall not use or permit any use of the demised
premises, or any part thereof, in a manner which in Landlord's opinion would injure the
reputation o( the Shopping Center or the neighborhood of which it is a part.
(d) Throughout the term of this Lease, Tenant shaH cause its store to remain open
from 10:00 A.M. until at least 9:30 P.M. each day o( the week and those hours on Sundays and
holidays dUring which the enclosed mall is open to the public. Tenant !'grees that the hours
during which Tenant is obligated to operate may be changed by Landlord (rom time to time,
provided that Landlord will not act in a discriminatory manner.
(e) Tenant shall operate and/or advertise the business operated at or from the
demised premises only under the name set forth in the fIrst page of the Indenture of Lease,
unless and until the use of another name is permitted, in writing, by Landlord.
SECfION 5.02. Stora2e.
Tenant shall warehouse, store and/ or stock in the leased premises only such goeds,
wares and merchandise as Tenant is permitted and intends to offer for sale at retail in. at or (rom
the leased premises. This shall not preclude occasional emergency transfers of merchandise to
other stores of Tenant, if any. not located within the Shopping Center.
SECflON 5.03. Additional Use of the Premises.
Tenant covenants and agrees that Tenant at its own cost and expense:
la) Will keep all exterior and interior store front surfaces clean and will maintain the
rest of the demised premises and all corridors and loading areas immediately adjoining the
demised premises in a clean, orderly and sanitary condition and free of insects, rodents. vennin
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and other pests;
(bl Will not permit accumulations 01 any refuse, but will remove the same daily and
keep such refuse in odor-proof, rat-proof containers within the interior of the demised premises
shielded from the view of the general public until removed and will not burn any refuse
wbatsoever but will cause all such refuse to be removed by sucb person or companies, including
Landlord, as may be designated in writing by Landlord and will pay all charges therefor; will
secure all wet garbage in heavy-duty trash bags; and will make special arrangements for the
disposal of any fats, oils, greases and/or batter. If Tenant shall fail to remove aU such refuse, or
should fail to make special arrangements for the disposal of any fats, oils, greases and/or batter,
Landlord may remove or dispose of the same and Tenant shall pay to Landlord all sums and costs
incurred by Landlord in performing auch removal or disposal plus administrative costs of the
Landlord in a sum equal to twenty percent {200A.1 of such sums and/or costa as additional rent;
(c) Will replace promptly with glass of like kind and quality any plate glass or
window glass of the demised. premises which may become cracked or broken;
(d) Will not, without the Landlord's prior written consent, place or maintain any
merchandise or other articles in any vestibule or entry of the demised premises or within two (21
feet of any entrance from the demised premises to the enclosed mall, on the footwa1lcs adjacent
thereto or elsewhere on the exterior thereof;
(e) Will not use or permit the use of any apparatus, or sound reproduction or
transmission, or any musical instrument, in such manner that the sound so reproduced,
transmitted or produced shaD be audible beyond the confines of the premises, and will not use
any other advertising medium, including without limitation flashing lights, or search lights which
may be heard or experienced outside of the leased premises;
(I) Will keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the confines of the demised premises;
(g) Will not cause or permit objectionable odors to emanate or be dispelled from the
demised premises;
(h) Will not 80licit businesa, distribute handbills or other advertising matter or hold
demonstrations in the parking areas or other Common Areas;
(i) Will not permit the parking of delivery vehicles so as to interfere with the use of
any driveway, walk, parking area, or other Common Areas in the Shopping Center;
iii Will comply with all notices, orders, laws and ordinances, including all
environmental laws and laws relating to wastes and hazardous materials and any environmental
state, county or local laws or regulations, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 and the Resource Conservation and Recovery Act of
1976, as amended from time to time, with any preapprovals, if required, to be granted by the
respective governmental agency, and all recommendations of the Association of Fire Underwriters,
Factory Mutual Insurance Companies, the Insurance Services Organization, or other similar body
establishing standards for fire insurance ratings with respect to the use or occupancy of the
premises by Tenant, and will participate in periodic fire brigade inatruction and dri1la at the
request of Landlord and will supply, maintain, repair and replace for the demised premises any
fire extinguishers or other fire prevention equipment (including installation of appruyed hoods
and ducts if cooking activity is conducted on the premisesl required by the aforemenlioned rules,
regulations and Association or other body in order to obtain insurance at the lowest available
premium rate throughout the term of this Lease; and will not engage in the treatment of any
waste, except as permitted or required by law and subject to the consent of the Landlord and the
issuance of all appropriate licenses and permits and compliance with all laws and regulation,
relating to such treatment;
(k) Will not receive or ship articles of any kind except through the facilities provided
for that purpose by Landlord and will not permit any delivery of goods, supplies, merchandise, or
fIXtures to or from the leased premises to be made through any of the enclosed malls unless the
leas,~d premises have no entrance other than on such a wall, in which latter case Tenant shall
use its best efforts to schedule such deliveries outside Shopping Center business hours, except
with Landlord's approval in emergency situations;
(1) Will light the show windows of the demised premises and exterior signs each day
of the year to the extent which shall be required by Landlord but in no event later then one hour
after the close of the Center;
fm) For any exterior entrance or service door exclusively serving the demised
premises, will keep all outside areas immediately adjoining the same including, but not limited to,
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sidewalks and loading docks free from ice and snow and Tenant hereby agrees that Tenant is
solely liable for any accidents occurring on said outside areas due or alleged to be due to any
accumulation of ice and snow;
(nl Will refer to the name or the Sbopping Center in all advertising done to promote
sales at the demised premises;
(0) Will, if required by Landlord, install, inspect and maintsin filtration devices,
including, without limitation, grease traps, oil splitters and/or acid neutralizers, in and on
Tenant's sewage lines prior to any discharge of water or sewage from the demised premises into
Landlord's sewer lines. In the event that Tenant shall fail to install, inspect or maintain the
aforesaid filtration devices, Landlord my undertake such installation, inspection and/or
maintenance and Tenant shall pay to Landlord all sums and costs incurred by Landlord in
performing such installation, inspection and/or maintenance plus administrative costs of the
Landlord in a sum equal to twenty percent (20%) of such sum and/ or costs as additional rent.
(pi Will not use the plumbing facilities for any other purpose than that for which
they are constrUcted and will not permit any foreign substance of any kind to be thrown therein
and the expense of repairing any breakage, stoppage, seepage or damage, whethet occurring on
or oft the premises, resulting from a violation of this provision by Tenant or Tenant's employees,
agents or invitees shall be borne by Tenant. All greasc traps and other plumbing traps shall be
kept clean and operable by Tenant at Tenant's own cost and expense:
(q) Will not permit any shopping carts in the Common Areas even if taken there by
customers;
(rl Will not place ot cause or permit to be placed within the demised premises, pay
telephones, vending machines (except those for the exclusive use of Tenant's employees) or
amusement devices of any kind without the prior written consent of Landlord;
(sl Tenant represents and warrants that all software products or systems (inclUding.
but not limited to 80ftware code revisional necessary to carry out its obligations under this Lease
are Year 2000 Compliant. "Year 2000 Compliant" shaH mean that neither performance nor
functionality is affected by datea prior to, during and after the year 2000. S[>""ifirA11y: (al no
value for the current date will cause any interruption to operation so that -rollover" between all
time demarcation (i.e. days. montha, years, centuries) will be performed correctly; (hI date-based
functionality must behave consistently for dates prior to, during and after year 2000; (cl in all
interfaces and data storage, the century in any date must be specified either explicitly or by
unambiguous algorithms or inferencing rules; and (d) Year 2000 must be recognized as a leap
year. Notwithstanding anything to the contrary in this Lease, Tenant agrees that the Year 2000
Compliant warranty set forth herein shall be in effect until December 31, 2000. Tenant further
agrees to indemnify, protect, defend and hold Landlord harmless from all losses, claims, causes of
action, suits, injuries and damage including, without limitation, reasonable attorneys' fees and
costs relating to or resulting from a breach of the fotegoing representation and warranty by
Tenant.
SECTION 5.04. Rules and Relrulations.
(a) Landlord reserves the right from time to time to adopt and promulgate rules and
tegulations applicable to the demised premises and the Shopping Center and to amend and
supplement such rules and regulations. Notice of such rules and regulationa and of any
amendment and supplements thereto shall be given to Tenant and Tenant agrees thereupon to
comply with and observe all such rules and regulations, provided that, to the extent practicable,
the same shall be applied uniformly to substantially all non-department store retail tenants of the
Shopping Center.
(b) Landlord's rights and remedies in the event Tenant sball fail to comply with and
observe such rules and regulations shall be the same as though such rules and regulations were
set forth in Section 5.03 of this Lease.
ARTICLE VI
GRANT OF CONCESSIONS
SECTION 6.0 l. Conditions to Grant.
The provision against subletting elsewhere contained in this Lease shall be applicable so
as to prohibit Tenant from granting concessions without the consent of Landlord for the operation
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of one or more departments of the business of Tenant, and any grant of concessions consented to
by Landlord shall be subject to the conditions that (aJ eacb such concession which may be
granted by Tenant shall be subject to all the terms and provisions of this Lease; (b) the Gross
Sales from the operation of each such concession shall be deemed to be a part of the Gross Sales
of Tenant for the purpose of determining the Percentage Rent payable to Landlord; Ie) all of the
provisions hereunder applying to the business of Tenant including, but not limited to, the
provisions of Articles II and III shall apply to each such concession; (d) unless otherwise approved
in writing by Landlord, such department or departments shall be operated only as part of the
business operation generally conducted by Tenant on the demised premises and under the
advertised name of Ten ant; and (e) at least seventy-five percent (75%1 of the sales floor area of the
leased premises shall at all times be operated directly by Tenant.
ARTICLE W
COIOlOIf AREAS
SECTION 7.0 I. Definition: Control.
All areas, space, facilities, equipment, and signs, to the extent made available by
Landlord for the common and joint use and benefit of Landlord, Tenant and other tenants and
occupants of the Shopping Center, and their respective employees, agents, subtenants,
concessionaires, licensees, cuatomers and other invitees, are collectively referred to herein as
"Common Area". If and to the extent made available by Landlord, Common Areas shaH include,
but not be limited to, the sidewa1ks, parking areas, access roads and drives, driveways, parking
decks, bridges, landscaped areas, truck serviceways, tunnela, loading docks, open and enclosed
pedestrian wallcways, corridon and maIIa, courts, stairs, ramps; elcWltors, escalators, comfort
and first aid stations, public washrooms, community hall or auditorium, parcel pick-up stationa
and utility lines. All Common Areas in or about the Shopping Center shall be subject to the
exclusive control of Landlord. Landlord shall operate, ""'ftIOlP', equip, clean, light, aurfiu:e and
maintain the Common Areas all in such manner as Landlord, in its sole discretion, may, Cram
time to time, determine (including, without limitation, the right to keep the enclosed mall open
only during the hours when the Shopping Center is open for business) and Landlord shal1 have
the sole right and exclusive authority to employ and discharge all personnel with respect thereto.
Landlord hereby expressly reserves the right from time to time to construct, maintain and operate
lighting and other facilities, equipment and signs on all of the Common Areas; to clean the
Common Areas; to use and allow others to use the Common Areas for any purpose; to change the
size, area, level, location and arrangement of the Common Areas; to build multi-atory and/or
subterranean parking facilities; to regulate parking by tenants and other occupants of the
Shopping Center and their respective employees, agents, subtenants, concessionaires and
licensees; to enforce parking charges (by operation of meten, or otherwisel with appropriate
provisions for parking ticket validation for tenants; to close temporarily all or any portion of the
Common Areas for the purpose of making repairs, chan&"s or alterations thereto or performing
necessary maintenance in connection with any emergency, in connection with closinp resulting
from adverse weather conditions or for any other purpose whatsoever, whether such purpose is
similar or dissimilar to the foregoing; to discourage noncustorner parking; to establish, modify
and enforce rea80nable rules and regulations with respect to the Common Areas and the use to
be made thereof. For the term of this Lease Tenant is hereby given the license in common with all
others to whom Landlord has or may hereafter grant rights to use, the Common Areas as they
may from time to time exist; provided, however, that if such license shall at any time be revoked,
in wbole or in part, or the size, area, level, location or arrangement of such Common Areas or the
type of facilities at any time forming a part thereof be changed, altered, rearranged or diminished,
Landlord shall not be subject to any liability therefor, nor shall Tenant be entitled to any
compensation or diminution or abatement of rent therefor, nor shall such alteration,
rearrangement, revocation, change or diminution of such Common Areas be deemed a
constructive or actual eviction or otherwise be grounds for tenninating or modifying this Lease.
In order to establish that the Shopping Center or any portion thereof is and will continue to
remain private property and to prevent a dedication thereof or the accrual of any rights to any
person or to the public thereon, Landlord hereby reserves the unrestricted right, in Landlord's
sole discretion, to close all or any portion of the Common Areas to such extent as, in the opinion
of the Landlord's counsel, may be legally sufficient to prevent such dedication thereof or accrual
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of any rights to any person or the public thereon; prol'ided, however, Landlord reserves the right
at any time and from time to time to dedicate to public use part or all of the ring roads, access
road, and drives and utility lines, together with all easements required to effectuate such
dedications, as it may see fit.
SECTION 7.02. ParkinS[ Facilities.
Tenant shall cause it and its employees to park only in the outer areas of the parking lot
or such places as provided and designated from time to time by Landlord for employee parking.
Within ten (IO) days after a request by Landlord, Tenant shall deliver to Landlord a list of
Tenant's and its employees' automobiles, which such list shall set forth the description of and the
license numben assigned to such automobiles and their state of issue. Thereafter, Tenant shall
advise Landlord of any changes, additions or deletions in such list. If any automobile appearing
on said list is parked in any area of the Shopping Center other than the area designated by
Landlord at any time after Landlord has given notice to Tenant or Tenant's store manager that the
same automobile has previously been parked in violation of this provision, then Tenant shall pay
to Landlord the sum of Twenty-Five Dollars ($25.00) per day for each such automobile for each
day (or part thereof) it is parked in violation of this provision. Tenant shall pay such sum to
Landlord within ten (10) days after receipt of notice from Landlord. In addition to the foregoing,
Tenant hereby authorizes Landlord in such event to remove from the Shopping Center any of
Tenant's automobiles, or automobiles belonging to Tenanh employees, and/or to attach violation
stickers or notices to such automobiles, and Tenant hereby waives and releases Landlord and
hereby indemnifies and holds Landlord harmless from all claims, liabilities, costs and expenses
which may arise therefrom.
SECTION 7.03. Roof. Walls. ChanlleS and Additions to Center.
(a) Landlord hereby reserves the exclusive right at any time and from time to time to
use all or any part of the roof and exterior walls of the demised premises for any pul]lO&e; to erect
scaffolds, protective barriers or other aids to construction on, around and about the exterior of
the demised premises, provided that access to the demised premises shall not be substantially
denied; to enter the demised premises to shore the foundations and/or walls thereof and/or to
install, maintain, use, repair, inspect and replace pipes, ducts, conduits and wires leading
through or located adjacent to the demised premises and serving other parts of the Shopping
Center in locations which do not materially interfere with Tenant's use thereof. Tenant further
agrees that Landlord may make any use, it desires of the side or rear walls or ceiling space of the
demised premises, provided that there shall be no encroachment upon the interior of th~ demised
premises. Landlord's right hereunder may be exercised by Landlord's designees.
(bl Landlord hereby reserves the right at any time to make alterations or ~ddjtions
to, and to build additional stories on, and to build adjoining to, the building in which th~ demised
premises are contained, and Tenant shall have no interest of any kind whatsoever inl the said
additions or additional stores or adjoining buildings. Landlord also reserves the right tP enlarge
the area of the Shopping Center by adding additional ground thereto from time;f' and,
whether or not so enlarged, to construct other buildings or improvements in the Sh . Center
at any time and Cram time to time and to make alterations thereto or additions there and to
build additional stories on such building or buildings and to build adjoining the e and to
construct double-deck elevated or subterranean parking facilities. ,
(c) If any excavation shall be made or authorized to be made upon land a4jacent to
the leased premises. Tenant shall afford to the person causing or authorized to cal>se such
excavation license to enter upon the leased premises for the purpose of doing suchl work as
Landlord shall deem necessary to preserve the wall or the building of which th~ leased I.premises
fonn a part from IDJUry or damage and to support the same by proper foundations. wiljhout any
claim for damages or indemnification against Landlord or diminution or abatement of rent
(d) Landlord shall not be liable in any such case for any inconvenience, disturbance,
loss of business or any other annoyance arising from the exercise of any or all of the rights of
Landlord in this Section 7.03.
SECTION 7,04. Ri2ht to Relocate.
The purpose of the plan hereto annexed as Exhibit "B" is solely to show the approximate
location of the demised premises. Landlord hereby reserves the right at any time and from time
to time to make changes or revision in such plan, including, but not limited to, additions to.
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subtractions from, and/or relocations or rearrangements of. the buildings, parking areas, and
other Common Areas (as defined in Section 7.01 hereoQ shown on such plan; provided only that
the size and location of the demised premises shall not be altered and reasonable access thereto
shall not be substantially impaired; provided, however, that Landlord reserves the right to
relocate a kiosk premises, at its sole expense, to a location of equal desirability upon fifteen (151
days' notice to Tenant.
SECTION 7.05. EXDenses.
Landlord (subject to the Common Area Payment as set forth in Section 7.06) will at its
expense operate and maintain or cause to be operated and maintained the Common Areas and
the Shopping Center. For the purposes of this Lease, 'Operating Costs" shall be those costs of
operating and maintaining. or of causing the operation and maintenance of, the Common Areas
and the Shopping Center of which the demised premises forms a part in a manner deemed by
Landlord to be reasonable and appropriate including. but not Umited to, all costs and expenses,
whether expended or incurred of repairing. lighting. cleaning. painting. refurbishing. replacing
and maintaining (including. but not limited to, preventive maintenance) and insuring the same
with such policies and companies and in such Umits as selected by Landlord (including. but not
limited to, rlrC insurance with extended coverage, liability insurance covering per80nal injury,
deaths and property damage with a personal injury endorsement covering false arrest, detention
or impri80nment, malicious prosecution, libel and slander, and wrongful entry or eviction,
workman's compensation insurance, plate glass insurance, contractual liability insurance and
fidelity bonds); removing snow, ice, rubbish and debris; inspecting; rental and depreciation (over
a period not exceeding sixty (60) months) of machinery and equipment and other non real estate
assets used in the operation and maintenance or the Shopping Center; repairing and/ or
replacing of paving. roofing, curbs, walkways, landscaping. drainage, on-site water lines, sanitary
sewer lines, storm water lines, electrical lines and other equipment serving the property on ....hich
Shopping Center or any part thereof is constrUcted or is to be constructed; heating. ventilating
and air conditioning enclosed Common Areas; uniforms and replacement of uniforms; the rental
of music programs, services and loudspeaker systems including the furnishing of electricity
therefor; all charges that may result Cram any environmental or other laws, rules, regulations,
guidelines or orders; the cost of obtaining and operating public transportation or shuttle bus
systems used in connection with bringing customers to the Shopping Center; the gross
compensation of all personnel required or necessary to implement the operation, maintenance,
administration, or repair of the Shopping Center including, without limitation, management,
secretarial, office, maintenance personnel, the cost of compensating Landlord's off-site personnel
involved in the administration of, and providing services to, the Shopping Center, including,
without limitation, legal, accounting and secretarial personnel, based upon an apportionment of
such compensation among all properties in which Landlord or its affiliates own an equity interest
and to supervise and accomplish the foregoing and an administrative charge equal to fifteen
percent (15%1 of the total of all Operating Costs.
SECTION 7.06. Common Area Pavment.
(a) For each "Accounting Period' (as derUled in Section 7.06(1)/ during the term of
this Lease, Tenant shall pay to Landlord, as additional rent, as Tenant's share of the Operating
Costs, a sum equal to the product obtained by multiplying (il the total Operating Costs for such
Accounting Period less all contributions thereto actually made to Landlord by occupants of any
Separately Assessed Premises by (ii) a fraction, the numerator of which shall be the square feet of
fioor area of the demised premises, and the denominator of which shall be the square feet of
leased fioor area in the Shopping Center. For the purposes of this Section, leased floor ares shall
mean the square feet of ODor area in enclosed buildings which are erected on portions of the
Shopping Center other than Separately Assessed Premises as derlIled in Section 2.04(d), which
are designed exclusively for use and occupancy by tenants other than occupants of Separately
Assessed Premises and which are occupied pursuant to an agreement with Landlord by the terms
of wbich Landlord obtains more than a nominal rental. All such fioor area shall be as determined
pursuant to the provisions of Section 2.0401 and shall be ftxed as of the last day of the applicable
Accounting Period.
(b) On the first day of each calendar montb during that portion of the term hereof
falling within the first Accounting Period, Tenant shall pay to Landlord. in advance, and as
additional rent, without demand and without any setoff or deduction, a n::nimum payment for
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Tenant's sha: e of tbe Operating Costs as set forth in Section "F" of the Indenture of Lease. If the
commencement date hereof shall not be the first day of a calendar month, Tenant's payment of its
share of Operating Costs for the fractional month between the commencement date and the first
day of the first full calendar month in tbe term shall be prorated on a per diem basis (calculated
on a thirty (3D) day month) and shall be paid together with the first payment of Fixed Minimum
Rent.
(c) After the first Accounting Period, Tenant shall continue to pay such minimum
payments (or Tenant's share of Operating Costs on the first day of each month in advance and as
additional rent, without demand and without any setoff or deduction, but the aforesaid amount of
Tenant's share o( Operating Costs may be increased by Landlord after the end of each Accounting
Period during the term hereof on the basis of the actual Operating Costs for the immediately
preceding Accounting Period. Upon Landlord furnishing to Tenant a statement setting forth such
revised operating costs, Tenant shall pay to Landlord such revised share in equal monthly
instsllments, each auch installment to be a sum equal to one-tweJfth (12th) of such revised
Operating Costs in advance on the rll'8t day of each calendar month thereafter until the next
succeeding revision.
(d) Following the end of each Accounting Period in which Tenant's share of
Operating Costs exceeds the minimum payment set forth in Section "F" of the Indenture of Lease,
Landlord shall furnish to Tenant a written statement in reasonable detail covering the Accounting
Period just expired showing the total Operating Costs for such Accounting Period, the amount of
Tenant's proportionate share thereof and payments made by Tenant with respect thereto. In
making the computation, as aforesaid, Landlord's statement shaD be conclusive evidence of
Operating Costs.
(el If Tenant's proportionate share of Operating Coats exceeds Tenant's Payments
with respect to any Accounting Period, Tenant shall pay to Landlord the deficiencY within twenty
(20) daya after the date of the furnishing of the statement Cram Landlord.
(II For the purpose of this Lease, the words "Accounting Period" mean the period
consisting of twelve (12) consecutive calendar months commencing on a date determined by
Landlord and each succeeding twelve (12) calendar month period commencing during the term of
this Lease; provided, however, the rll'8t Accounting Period shall commence on the date the
Shopping Center rll'8t opens for business with the public and shall terminate on the date
immediately preceding the date so determined by Landlord.
(g) If the term of this Lease commences after the date the Shopping Center first
opens for business with the public or terminates (other than by reason of Tenant's default) during
an Accounting Period, Tenant's obligation for Tenant's share of Operating Costs for such
Accounting Period shaH be equitably pro-rated.
{hI Tenant's obligations under this Section 7.06 shall survive the expiration or earlier
termination of the term of this Lease.
SECTION 7.07. Prooortionate Cost of Security.
Landlord may elect, but shall not be required, to provide security for the Shopping
Center. If Landlord shall elect to provide security for the Shopping Center, Tenant shall pay its
proportionate cost of such security determined as follows;
(a) Tenant shall pay to Landlord, as additional rent, the amount obtained by
multiplying the total of all costs and expenses of eveJy kind and nature incurred by Landlord in
providing security for the Shopping Center by a fraction, the numerator of which shall be the
square (eet of floor area of the demised premises, and the denominator of which shall be the
square feet of all "leasable floor area" (as defined in Section 2.04(dl of this Leasel, but never less
than the amount set forth in Section K of the Indenture of Lease and in the manner provided
therein. All such floor area shall be as determined pursuant to the provisions of Section 2.04(j)
and shall be fIXed as of the last day o( the applicable Accounting Period.
(b) Tenant shall pay any increase in its proportionate cost of security within twenty
(20) days after the date of the furnishing of a statement of such charges by Landlord for each
Accounting Period or portion thereof.
(cl Although Tenant shall pay its proportionate share of the cost of security, as
aforesaid, in addition to, and not as a component of, its proportionate share of Operating Costs,
for the purpose of Articles XVUl and XIX and Sections 13.02, 14.01 and 20.02 of this Lease, the
words "Operating Costs" shall be deemed to include such share of cost of security.
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ARTICLE VIII
SIGNS; AWNINGS; CANOPIES; FIXTURES; ALTERATIONS
SECTION 8.01. Sims. Awninlls and Canooies.
(al Tenant shall, at its own risk, lawfully erect illuminated signs, concerning the
business of the occupant of the demised premises, and agrees to maintain said signs in good
condition and state of repair and save Landlord harmless from any loss, cost of damage as a
result of the erection, maintenance, existence or removal of such signs. AU signs shall be in
accordance with Landlord's Sign Specifications, a copy of which will be attached to the Outline
Plan and shall be approved in writing by Landlord. Upon vacating the demised premises, the
Tenant agrees to remove all signs and repair all damage caused by such removal. Tenant
covenants that no ftaahing. illuminated or paper signs will be used anywhere in the demised
premises and all signing is subject to Landlord's prior written approval. Tenant ahall not install
or affix any sign, device, antenna, fixture or attachment on or to the exterior or interior of the
demised premises including. by way of illustration, any window or door; nor place any vent,
structure, building, improvement, sign or advertising device or obstruction of any kind within the
Common Areas or on the exterior or interior walls of the demised premises, without first obtaining
Landlord's written consent.
(h) Tenant shall neither place nor maintain nOr suffer to be placed or maintained on
the exterior of the demised premises or on the glass of any window or door of the demised
premises which shall be visible from the exterior thereof or within three (31 feet of any such glass
(other than neatly lettered signs of reasonable size placed on the Ooor of the display window
identifying articles offered for sale and the price thereoQ any sign, awning. canopy, decoration,
lettering, advertising matter or any other thing without in each instance first obtaining Landlord's
written approval thereof; and Tenant further agrees to design and to maintain such sign,
decoration, lettering. advertising matter or other thing as may be approved in good condition and
repair at all times.
(c) Tenant shall not paint or decorate any part of the exterior of the demised
premises, or any part of the premises which shall be visible from the exterior thereof, without flJ"St
obtaining Landlord's written approval of such painting or decoration.
(dl Tenant shall install and maintain at all times, subject to the other provisions of
this Section, displays of seasonable merchandise in the show windows (if any) of the demised
premises; and Tenant further agrees that all articles and the arrangement, style, color and
general appearance thereof, in the interior of the demised premises which shall be visible from
the exterior thereof, including, but not limited to, window displays, advertising matter, signs,
merchandise and store flXtures, shall be maintained in the premises so as to be in keeping with
the character and standards of the Shopping Center.
SECTION 8.02. Proocrtv in Demised Premises.
(a) All leasehold improvements, such as light flXtures, heating and air-conditioning
equipment, shall when installed attach to the fee and become and remain the ~l;y of
Landlord. Such property shall not be removed unless replaced with like property.
(bl All inventory and all trade fixtures hereafter installed or placed by Tenant in the
demised premises shall be new, shall remain the property of Tenant and shall be removable by
Tenant at the expiration or earlier termination of the term of this Lease provided that (1) Tenant
shall not at such time be in default under this Lease, and (21 in the event of the removal of any or
all of such property Tenant shall promptly restore the damage done to the premi8es by the
installation and/or removal thereof. Should Tenant fail to so remove Tenant's propert;y and/or to
so restore the premises, Landlord may do so, collecting, at Landlord's option, the cost and
expense thereof, as additional rent, upon demand. Any such property which is not rcnlOWJd and
which by the terms of the Lease is not removable by Tenant at or prior to any termination of this
Lease including, but not limited to, a termination by Landlord pursuant to this Lease, shall,
unless Landlord gives Tenant notice to remove any or all of such property, be and become the
property of Landlord (without any obligation by Landlord to pay compensation for such property).
In the event Landlord gives Tenant such notice to remove any or all or such property, Tenant shall
promptly remove such property as may be specified by Landlord in such notice. Notwithstanding
anything herein contained to the contrary Or any decision of any court to the contrary, the tenn
"trade fixtures" shall not include any attached leasehold improvements including but not limited
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to air-conditioning, heating, lighting, electrical and plumbing equipment installed by Tenant in
the demised premises, nor any wiring or other apparatus related thereto.
(c) In the event Tenant ceases its business operation in the demised premises and is
in default with respect to its obligation for the continuous operation of its business, Tenant shall
be deemed to have abandoned the demised premises and all property of Tenant shall also be
deemed to have been abandoned and said property may be retained or disposed of by Landlord as
Landlord desires.
SECTION 8.03. Improvements and Alterations.
(a/ Tenant covenants and agrees not to make or permit to be made any alterations,
improvements and additions to the demised premises or any part thereof except by and with the
written consent of Landlord rtrSt had. AU alterations, improvements and additions to said
premises shaD be made in accordance with all applicable laws and shall at once when made or
installed be deemed to have attached to the freehold and to have become the property of Landlord
and shall remain for the benefit of Landlord at the end of the term or other expiration of this
Lease in as good order and condition as they were when installed, reasonable wear and tear
excepted.
(h) In making such alterations, additions and improvements to the demised premises
and in installing such chattels, equipment and rlld:ures or doing such other work, Tenant shall
promptly pay all contracton and materiabnen so as to minimize the possibility of a Iiert attaching
to the demised premises or the Shopping Center, and Tenant shan include in all contracts and
subcontracts for work to be performed on Tenant's behalf at the demised premises provillions
wherein auch contractor or subcontractor acknowledges that Landlord has no liability under
such contracts and subcontracts and that such contractor or subcontractor wam.s any right it
may have to lien or attach Landlord's parcel or the Shopping Center of which Landlord's parcel is
a part, and should any such lien or notice of intention to perform or furnish materials rNotice"/
be made or filed, Tenant shall bond against or discharge the same or notice of intention to
perform or furnish materials rNotice"1 within twenty (201 days after written request by Landlord.
If Tenant shall fail to cause such lien or Notice to be bonded against or to be discharged within
the period aforesaid, then, in addition to any other right or remedy which Landlord may have
under this Lease, at law or in equity, Landlord may, but shall not be obligated to, discharge the
same either by paying the amount claimed to be due or by procuring the discharge of such lien by
deposit or by bonding proceedings and, in any such event, Landlord shall be entitled, if Landlord
so elects, to compel the prosecution of any action for the foreclosure of such lien or Notice by the
lienor with interest, costs and expenses. Any amount so paid by Landlord and all coats and
expenses incurred by Landlord in connection therewith, together with interest thereon at the
highest rate permitted by law from the respective dates of Landlord's making of the payment and
incurring of the cost and expense, shall constitute additional rent payable by Tenant under this
Lease and shall be paid by Tenant to Landlord on demand.
(c) The provisions of this Article shall survive the expiration or earlier termination of
the term of this Lease.
ARTICLE IX
MAINTENANCE AND REPAIR; SURRENDER OF LEASED PREMISES
SECTION 9.01. Reoairs and Maintenance bv Tenant.
(al Tenant shall at all times at its own expense keep and maintain the demised
premises (including, but not limited to, all entrances and the inside and outside of all glass in the
doors and windows and show window moldingsl and all partitions, doors, fixtures, signs,
equipment and appurtenances thereof in good order and repair, and in a neat, safe, clean and
orderly condition, including, but not limited to, reasonable periodic painting as determined by
landJord and making aU non-structural ordinary and extraordinary, foreseen and unforeseen
repairs and replacements to the demised premises, including. without limitation, repairs and
replacements to the plumbing and sewage facilities within the demised premises or under the
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floor slab including Cree flow up to the main sewer line, electrical, heating, ventilating and air-
conditioning system and escalators and elevators, if any, and mechanical system and
installations therein. Tenant shall not overload the electrical wiring serving the premises or
within the premises, and will install at its own expense but only after obtaining Landlord's written
approval, any additional electrical wiring which may be required in connection with the demised
premises.
(b) Tenant will repair promptly at its own expense any damage (whether structural
or non-structural) to the demised premises caused by any construction or alterations performed
by Tenant or bringing into the premises any property for Tenant's use, or by the installation or
removal of such property, regardless of fault or by whom such damage shall be caused, unless
caused 80lely bY the negligence of Landlord or its servants or employees.
(c) In the event Tenant defaults in the performance to Landlord's satisfaction of any
of its obligations under this Section 9.01, and such default continues for a period of ten (10) days
after written notice from Landlord (except that in an emergency no notice shall be required),
Landlord, in addition to Landlord's other remedies under this Lease, at law or in equity, may (but
shall not be obligated to do so) cure such default on behalf of Tenant without any liability of
Landlord, its agents, servants, employees, contractors or subcontractors for damage to Tenant's
merchandise, fIXtures or other property or to Tenant's business by reason thereof, and Tenant
shall reimburse Landlord, as additional rent, upon demand, for any sums paid or costs incurred
in curing such default, plus administrative costs of Landlord in a sum equal to twenty percen t
(20%) of such sums and/or costs.
SECTION 9.02. Structural ReDairs.
(a) Except as otherwise provided by 9.0l(b), structural portions of the premises, the
roof of the demised premises and those portions of the exterior of the demised premises which
Tenant is not obligated to maintain pursuant to Section 9.0l(a) will be repaired by Landlord
provided Tenant gives Landlord notice specifying the nced for and nature of such repairs;
provided, however, if Landlord is required to make any repairs to such portions of the demised
premisea by rea80n, in whole or in part, of the negligent act or failure to act by Tenant or Tenant's
agent, servants, employees, contracton or subcontractors, or by reason of any unusual use of the
demised premises by Tenant (whether or not such use is a permitted use hereundetj, Landlord
may collect the cost of such repaits, as additional rent, upon demand. For the purpose of this
Lease, any difference in floor level, shifting of Roor slab, or deviation in finished floor height
resulting from the insertion or construction of an expansion joint or strip in the floor slab shall
not be deemed a structural defect requiring repair by Landlord, but rather, a normal CODstnlction
practice which shall be Tenant's responsibility to appropriately plan for in its constnlction and
use of the demised premises.
(bl If, without Landlord's prior consent, Tenant performs any alterations, additions,
improvements, changes, afflXStions of chattels or other work which affects the structural portions
of the demised premises and/ or the roof of the building of which the demised premises are a part
and/or that portion of the exterior of the demised premises which Landlord is obligated to repair
punuant to Section 9.02(a) or which affects the structural integrity of the building ol which the
leased premises shall form a part, such action by Tenant shall release and discharge Landlord as
of the commencement of such alteration. addition, improvement, affIXation or other work of and
from such repair obligation and thereafter Tenant agrees to be solely responsible for the
maintenance, repair and replacement of any or all such structural portions, roof, exterior and
building which have been affected as aforesaid; provided, in the event Tenant shall default in the
performance, to Landlord's satisfaction, of such responsibilities, Landlord, in addition to
Landlord's other remedies under this Lease, at law or in equity, may (but shall not be obligated to
do so) cure such default on behalf of Tenant without any liability of Landlord, ita agents,
servants, employees, contractors or subcontractors for damage to Tenant's merchandise, lix!:Ures
or other property or to Tenant's business by reason thereof, and Tenant shall reimburse
Landlord, as additional rent, upon demand, for any sum paid or costs incurred in curing such
default, plus administrative costs of Landlord in a sum equal to twenty percent (20%) of such
sum and/or costs. For the purposes of the foregoing, if Tenant performs any such alterations,
additions, improvements, changes, afflxations or other work in a manner not consistent with
Landlord's prior consent thereto, such work shall be deemed to have been performed without
Landlord's consent.
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SECTION 9.03. Surrender of Premises.
At the expiration of or earlier termination of the term of this Lease, Tenant shall
peaceably surrender the leased premises in the same condition including, but not limited to, the
conditions of cleanliness, as the leased premises were upon the commencement of the term of
this Lease. ordinary wear and tear excepted to the extent the leased premises is not required to be
repaired and/or maintained by Tenant and damage by unavoidable casualty excepted to the
extent that the same is covered by Landlord's fire insurance policy with extended coverage
endorsement, and Tenant shall surrender all keys for the leased premises to Landlord at the
place then fIXed for the payment of rent and shall notify Landlord in writing of all combinations of
locks, safes and vaults, if any, in the leased premises. Tenant shall comply with the provisions of
Section 8.02 respecting the removal of its property before surrendering the premises as aforesaid.
Any property not so removed at the expiration of the term hereof, shall be deemed to have been
abandoned by Tenant, and may be retained or disposed of by Landlord, as Landlord shall desire.
Tenant's obligation to observe and perform the covenants set forth in this Section 9.03 shall
survive the expiration or earlier termination of the term of this Lease.
ARTICLE X
lNDEM!fD'ICATION; SUBROGATION
SECTION 10.01. Indemnification and Waiver of ClAim.
(al Tenant will defend. and, except to the extent caused by the negligence of
Landlord, its agents, servants, and employees, will indemnify Landlord and Agent and save them
harmless from and against any and all claims, actions, damages, liability and expense (including.
but not limited to, attorney's fees and disbursementsl in connection with the loss of life, personal
injury or damage to property or business arising from, related to, or in connection with the
occupancy or use by Tenant of the demised premises or any part of Landlord's property or the
Shopping Center or occasioned wholly or in part by act or omission of Tenant, its contracton,
subcontractors, subtenants, licen$Ces or concessionaires, or its or their respective agents,
servants or employees. Tenant shall alao pay all costs, expenses and reasonable attorney's fees
that may be expended or incurred by Landlord and/or Agent in successfully enfOrcing the
covenants and agreements of this Lease. The provisions of this Section 10.01 shall survive the
termination or earlier expiration of the term of this Lease.
(bl Unless and then solely to the extent such damage is caused by the negligent acts
or omissions of Landlord, Agent, or their respective agents, servants, and employees, neither
Landlord, Agent nor their respective agents, servants, employees or contractors shall be liable for,
and Tenant, in consideration of Landlord's execution of this Lease, hereby releases all claims for
loss of life, personal injury or damage to property or business sustained by Tenant or any person
claiming through Tenant resulting from any flJ"e, accident, occurrence or condition in or upon the
Shopping Center or any part thereof (including. without limitation, the demised premisea and the
building of which the same is a partJ, including. but not limited to, such claims for Joss of life,
personal injury or damage resulting Cram (II any defect in or failure of plumbing, heating or air
conditioning equipment, electrical wiring or installation thereof, water pipes, stairs, railings or
walks; (21 any equipment or appurtenances being out of repair; (31 the bursting. lealcing or
running of any tank, washstand, water closet, waste pipe, drain or any other pipe or tank in,
upon or about the Shopping Center; (41 the backing up of any sewer pipe; (51 the escape of steam
or hot water; (6) water, snow or ice being upon or coming through the roof or any other place
upon or near the demised premises or the building of which the same is a part or otherwise; (71
the failing of any fixture, plaster or stucco; (8) broken glass; (91 any act or omission of other
tenants or other occupants of the Sbopping Center; and (10) any act or omission of Landlord,
Agent or their respective principals, agents, seIVants and employees whether occurring on, prior
to, or subsequent to the date of this Lease. The foregoing waiver and release is intended by
Landlord and Tenant to be absolute, unconditional and without exception and to supersede any
specific repair obligation imposed upon Landlord hereunder.
ARTICLE Xl
INSURANCE
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SECTION I\.? I. Insurance.
(a) Tenant will keep in force in companies licensed to do business in the state where
the Center is located at Tenant's expense at a1l times during the term of this Lease and during
such other times as Tenant occupies the demised premises or any part thereof;
(1) Public liability insurance with respect to the demised premises, the sidewalks
abutting and adjoining the demised premises, if any, and the business operated by Tenant and
any subtenants, licensees and concessionaires of Tenant in or from the demised premises with
minimum limits of One Million Dollars ($1,000,0001 combined single limit for bodily injury and
property damage, and including coverage for liability assumed under contracts.
(2) Worken' Compensation insurance which will provide for all Tenant's
employees the statutory benefits for the state in which demised premises are located, and will
also include Employen' Liability insurance with minimum limits of One Hundred Thousand
Dollars ($100,000.001.
(3) Such other types of insurance (excluding rent insurance in favor of Landlordl
and such additional amounts of insurance as, in Landlord's judgment, are necesaitated by good
business practice.
(b) Prior to delivery of possession of the demised premises and within ten (101 days
of each occasion of renewal or replacement of insurance coverage, throughout the term of the
Lease, Tenant shall submit to Landlord, marked "Attention Insurance Department", a valid
Certificate of Insurance, signed by an authorized agent of the insurer, which shall eWIence all the
insurance coverage required by this Section 11.0 I and which shall set forth the follOwing:
(I) Landlord is named an "additional insured" on the public liability insurance
policy.
(21 At least thirty (301 days prior notice shall be given to Landlord as to any
policy cancellation or any material alteration in coverage.
(3) The public liability insurance policy is an "occurrence' form of coverage;
(claims-made insurance is not acceptablel.
SECTION 11.02. Insurance Provisions.
It is a condition or this Lease that the Tenant shall install and maintain, in proper
working order, an Underwriter'a Laboratory and Rating Bureau approved Automatic
Extinguishing System in the hoods and ducts serving such Tenant's cooking equipment and deep
fat fryers. The system shall also be arranged to shut off the electrical current and/or gas supply
to the deep rat fryen when the extinguishing system is activated. No change affecting the
operation of this system shall be made without giving prior notification to the Landlord.
SECTION 11.03. Effect on Insurance.
(al Tenant will not do, omit to do, or suffer to be done or keep or suffer to be kept
anything in, upon or about the leased premises which will violate the provisions of Landlord's
policies insuring against loss Or damage by fire or other hazards (including. but not limited to,
public liability), which will adversely affect Landlord's fue or liability insurance premium rating or
which will prevent Landlord from procuring such policies in companies acceptable to Landlord,
provided Tenant is fIrSt given adequate notice of the requirements of such policiea. If anything
done, omitted to be done or suffered to be done by Tenant, or kept or suffered by Tenant to be
kept in, upon or about the premises shall by itself or in combination with other circumstances
existing at the Shopping Center cause the premium rate of fire or other insurance on the leased
premises or other property or the Shopping Center in companies acceptable to Landlord to be
increased beyond the established rate from time to time fixed by the appropriate underwriters
with regard to the use of the demised premises for the purposes permitted under this Lease or to
such other property in the Shopping Center for the use or uses made thereof, Tenant will pay the
amount of such increase or, in the event that other circumstances existing at the Shopping
Center shall have contributed to such increase, such equitable portion of such increase as
reasonably determined by Landlord, as additional rent upon Landlord's demand and will
thereafter pay the amount of such increase, as the same may vary from time to time, with respect
to every premium relating to coverage of the demised premises during a period falling within the
term of this Lease until such increase is eliminated. In addition, if applicable, Landlord may at
its option rectify the condition existing on the demised premises which caused or was a
contributing cause of the increased premium rate in the event that the Tenant should. fail to do so
and may charge the cost of such action to Tenant as additional rent, payable on demand. In
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determining whether increased premiums are the result of Tenant's use of the leased premises, a
schedule, issued by the organization making the insurance rate on the leased premises, showing
the various components of such rate, shall be conclusive evidence of the several items and
charges which make up the fire insurance rate on the leased premises.
(b) If for any reason whatsoever including, but not limited to, the abandonment or
the demised premises, Tenant's failure to pay the insurance premium or Tenant's failure to
occupy the demised premises as herein permitted, Tenant fails to provide and keep in force any or
aU of the insurance policies set forth in Section 11.01 hereof, then in such event Tenant shall
indemnify and hold Landlord hannless against any loss which would have been covered by such
insurance.
(cl If Tenant shall not comply with its covenants made in this Section, Landlord in
addition to Landlord's other remedies hereunder may (but shall not be obligated tol cause
insurance, as aforesaid, to be issued, and in such event Tenant agrees to pay the premium for
such insurance as additional rent promptly upon Landlord's demand, or Landlord, at its option,
may treat such failure to comply as a Deliberate Event of Default.
ARTICLE XlI
UTILITIES
SECTION 12.01. Utilities.
(a) Tenant shall be solely responsible for and promptly pay all charges for heat,
water (including atsndby), electricity, sewer rents or charges, sprinkler charges, A.D.T. or other
alarm system, water treatment facility c::harges, and any other utility used or consumed in the
leased premises or in providing heating and air conditioning to the leased premises, without
limitation, together with all connection and service charges and all taxes or other charges Jevied
on such utilities, said responsibility commencing on the date Landlord notifies Tenant that the
leased premises are ready for Tenant's commencement of Tenant's Work. Should Landlord eJect
or be required to supply or make available any utility used or consumed at the demised premises,
Tenant agrees to purchase and pay for same, as additional rent, every month in the term hereof;
provided that Tenant shall not be obligated to pay to Landlord an aggregate annual sum therefor
in excess of the aggregate annual amount therefor which Tenant would otherwise be oblipted to
pay for similar utility usage and service as a retail customer of the public utility or municipal
authority then supplying such utility to the Center. Tenant agrees to purchase from Landlord
and pay for electricity to be used by Tenant at the demised premises in accordance with the
Utility Schedule attached hereto as Exhibit .C..
{bl In the event that Tenant does not have a water meter installed in the leased
premises, Tenant will pay to Landlord, as additional rent, every month in the term of this Lease
the minimum charge for the size of the line installed in the leased premises in accordanoe with
the rates established Cram time to time by the company or authority supplying water to the
premises.
(c) In the event the local authority, municipality, utility or other body collects for the
water and/or sewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants
and agrees to pay the water and sewer rent charge (both minimum and otherwise) and any other
tax, rent, levy, connection fee or meter or other charge which now or hereafter is assessed,
imposed or may become a lien upon the demised premises, or the realty of which they are a part,
pursuant to law, order or regulation made or issued in connection with the use, consumption,
maintenance or supply of water, or the water or sewerage connection or system.
(dl In no event shall Landlord be liable to Tenant in damages or otherwise for any
interruption, curtailment or suspension of any of the foregoing utility services in the event of a
default by Tenant under this Lease or due to repairs, action of public authority, strikes, acts of
God or public enemy, or any other cause, whether similar or dissimilar to the aforesaid.
SECTION 12,02. Aoolication For Utilities.
Tenant shall make all appropriate applications to the local utility companies at such
times as shall be necessary to insure utilities being available at the demised premises no later
than the commencement of the term and pay all required deposits, connection fees and/or
charges for meters within the applicable time period set by the local utility company.
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SECTION 12.03. Ooeration of Heatin2 Rnd Air-Conditionin2.
Tenant must operate heating and cooling equipment to maintain store temperatures at
such temperatures as will prevent the freezing or bursting of pipes and the draining of heated and
chilled air from the enclosed mall.
SECTION 12.04. Utility Char2e Defined.
All s\lms to be paid by Tenant in accordance with this Article XII are collectively herein referred to
as the "Utility Charge".
ARTICLE xm
ESTOPPEL CERTIFICATE; SUBORDlKATlOlf; ATTORlIMElIT
SECTION 13.01. Execution of Estoooel Certificate.
At any time, and from time to time, upon the written request of Landlord or any
mortgagee, Tenant, within twenty (20) days of the date of such written request, agrees to execute
and deliver to Landlord and/or such mortgagee, without charge and in a form satisfactory to
Landlord and/or such mortgagee, a written statement: Is) ratifying this Lease; (b) confirming the
commencement and expiration dates of the term of this Lease; (c) certifying that Tenant is in
occupancy of the demised premises. and that the Lease is in full force and effect and has not
been modified, assigned, supplemented or amended except by such writings as shall be stated; (d)
certifying that all conditions and &greemcota under this Lease to be satisfied or performed by
Landlord have been satisfied and performed except as ahalI be stated; (el certifying that Landlord
is not in default under the Lease and there are no defenses or offsets against the enforcement of
this Lease by Landlord, or stating the defaults and/or defenses claimed by Tenant; (I) reciting the
amount of advance rent, if any, paid by Tenant and the date to which such rent has been paid; (g)
reciting the amount of security deposited with Landlord, if any; (h) certifying compliance with the
environmental covenants of the Lease as set forth in Section 5.03{j) of the Lease; and (il any other
information which Landlord or the mortgagee shall require.
SECTION 13.02. Failure to Execute EstoDocl Certificate.
The failure of Tenant to execute, acknowledge and deliver to Landlord and/or any
mortgagee a statement in accordance with the provisions of Section 13.01 above within the period
set forth in Section 13.01 shall constitute an acknowledgment by Tenant which may be relied
upon by any penon holding or intending to acquire any interest whatsoever in the demised
premises or the Shopping Center that this Lease has not been assigned, amended, chanpi or
modified, is in full force and effect and that the Fixed Minimum Rent, Tax Rent, Tenant's share of
Operating Costs, Utility Charge, Percentage Rent and additional rent have been duly and fully
paid not beyond the respective due dates immediately preceding the date of the request for such
statement and shaD constitute as to any persons entitled to rely on such statements a waiver of
any defaults by Landlord or defenses or offsets against the enforcement of this Lease by Landlord
which may exist prior to the date of the written request, and Landlord, at its option, may treat
such failure as a Deliberate Event of Default.
SECTION 13.03. Subordination and Attornment.
Tenant agrees (al that, except as hereinafter provided, this Lease is, and all of Tenant's
rights hereunder are and shaH always be, subject and subordinate to any mortgage, Ieaaes of
Landlord's property (in sale-leaseback) pursuant to which Landlord has or shall retain the right of
possession of the demised premises or security instruments (collectively called "Mortgage") that
now exist, or may hereafter be placed upon the demised premises or the Shopping Center or any
part thereof and to all advances made or to be made thereunder and to the interest thereon, and
all renewals, replacements, modifications, con80lidations, or extensions thereof; and (hI that if the
holder of any such Mortgage ("Mortgagee"), the purchaser at any foreclosure sale or at any sale
under a power of sale contained in any Mortgage, or the owner, at the time of the hereinafter
described request, of the fee estate or the leasehold estate of the real estate upon which the
demised premises is situate (hereinafter referred to as Landlord for purposes of this Sectionl shall
at its sole option so request, Tenant will attorn to, and recognize such Mortgagee. purchaser, or
Landlord, as the case may be, as Landlord under this Lease for the balance then remaining of the
term of this Lease, subject to all terms of this Lease; and (c) that the aforesaid provisions shall be
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self operative and no further instrument or document shall be necessary unless required by any
such Mortgagee, purchaser, Or Landlord. Notwithstanding anything to the contra!)' set forth
above, any Mortgagee may at any time subordinate its Mortgage to this Lease, without Tenant's
consent, by execution of a written document subordinating such Mortgage to this Lease to the
extent set forth therein, and thereupon this Lease shall be deemed prior to such Mortgage to the
extent set forth in such written document without regard to their respective dates of execution,
delivery and/or recording and in that event, to the extent set forth in such written document
such Mortgagee shall have the same rights with respect to this Lease as though this Lease had
been executed and a memorandum thereof recorded prior to the execution, delivery and recording
of the Mortgage and as though this Lease had been assigned to such Mortgagee. Should
Landlord or any Mortgagee or purchaser desire confIrmation of either such subordination or such
attornment, as the case may be, Tenant upon written request, and from time to time, will execute
and deliver without charge and in form satisfactory to Landlord, the Mortgagee or the purchaser
all instruments and for documents that may be requested to acknowledge such subordination
and/or agreement to attorn, in recordable form.
ARTICLE XIV
ASSIGRMEl'IT AND SUBLETTING
SECTION 14.01. Assimment and SublettinlL
(a) Tenant shall not voluntarily, involuntarily, or by operation of law, assign,
transfer, mortgage or otherwise encumber (herein collectively referred to as an "assignment' this
Lease or any interest of Tenant herein, in whole or in part, nor sublet the whole or any part of the
demised premises, nor permit the demised premises or any part thereof to be used or occupied by
othen, without first obtaining in each and every instance the prior written consent of Landlord.
Any consent by Landlord to an assignment or subletting or use or occupancy by others sha1l be
held to apply only to the specifIC transaction thereby authorized and shall not constitute a waiver
of the necessity for such consent to any subsequent assignment or subletting or use or
occupancy by others, including, but not limited to, a subsequent assignment or subletting by any
trUstee, receiver, liquidator, or personal representative of Tenant, nor shall the references
anywhere in this Lease to subtenants, licensees and concessionaires be construed as a consent
by Landlord to an assignment. If this Lease or any interest herein be assigned or if the demised
premises or any part thereof be sublet or used or occupied by anyone other than Tenant without
Landlord's prior written consent having been obtained thereto, Landlord may nevertheless collect
rent (including, but not limited to, Fixed Minimum Rent, Percentage Rent, the Utility Charge, Tax
Rent, Tenant's proportionate share of Landlord's Operating Costs, and additional rent) from the
assignee, sublessee, user or occupant and apply the net amount collected to the rents herein
reserved, and furthermore in any such event Tenant shaH Pay to Landlord monthly, as additional
rent, the excess of the consideration received or to be received during such month for such
asaignment, sublease, or occupancy (whether or not denoted as rent) over the rental ~ "..d for
such month in this Lease applicable to such portion of the demised premises so ."Siped, sublet
or occupied. No such assignment, subletting, use, occupancy or collection shall be deemed a
waiver of the covenant herein against assignment, subletting or use or occupancy by others, or
the acceptance of the assignee, subtenant, user or occupant as Tenant hereunder, or constitute a
release of Tenant from the further performances by Tenant of the terms and provisions of this
Lease. If this Lease or any interest of Tenant herein be assigned or if the whole or any part of the
demised premises be sublet or used or occupied by others, after having obtained LandIord'a prior
written consent thereto, Tenant shall nevertheless remain fully liable for the full perfol1DlU1Ce of
all obligations under this Lease to be performed by Tenant and Tenant shall not be re1eased
therefrom in any manner.
(h) If at any time during the term or this Lease any part or all of the corporate shares
of Tenant, or of a parent corporation of which Tenant is a direct or indirect subsidiary, shall be
transferred by sale, assignment, bequest, inheritance, operation of law or other disposition 80 as
to result in a change in the present effective voting control of Tenant or of such parent
corporation by the person or persons owning or controlling a majority of the shares of Tenant or
of such parent corporation on the date of this Lease, Tenant shall promptly notify Landlord in
writing of such change. and such change in voting control shall constitute an assignment of this
Lease for all purposes of this Section; provided, however, that this proviSIon shall not apply in the
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e"ent that over fifty percent (50%) or the voting power of the Tenant corporation or of such parent
corporation is held by fifty (50) or more unrelated shareholders or distributed to such number of
unrelated shareholders in a public distribution of securities. Tbis clause shall not apply to a
corporation whose stock is traded in a nationally recognized stock exchange. This clause shall
not apply In the event oC the transCer oCvotlng stock to the spouse or children oC Ronald J.
Kaplan lor to any trust Cor the benefit oC his spouse or children) upon hla death or
disability.
(c) If Tenant is a partnership and if at any time during the term of this Lease any
person who at the time of the execution of this Lease owns a general partner's interest ceases to
own such general partner's interest, such cessation of ownership shall constitute an assignment
of this Lease for all purposes of this Section.
(d) Upon the occurrence of any of such events as described in Section 14.01(a),
14.01(b), or 14.01(cl hereof, whether voluntary, involuntary, by operation of law, or otherwise.
without the prior written consent of Landlord (whether or not Tenant ahall have given notice
thereof to Landlord), Landlord may treat any such occurrence as a Deliberate Event of Default
SECTION 14.02. ADDlication to Assim or Sublet
In the event the event that Tenant should desire to assign or sublet the whole or a part of
the leased premises, Tenant shall submit to Landlord a written statement, signed by Tenant,
setting forth the following information:
lal The name and address of the proposed assignee or subtenant and the character
of its business;
(bl The activities to be conducted in and the use to be made of the premises by the
proposed assignee or subtenant;
(cl A full and complete outline of all of the terms and conditions of the proposed
assignmentorsublettin~
(d) Such financial information and credit information pertaining to the proposed
assignee or subtenant su1licient to enable Landlord to evaluate its financial responsibilil;y;
leI A representation that the proposed assignee or subtenant is not a tenant,
subtenant, assignee or occupant of any space in the Shopping Center.
During a period of thirty (30) days after receipt by Landlord of the foregoing information,
Landlord may elect (11 to consent to such proposed assignment or sublettin~ or (2) to refuse or
withhold consent to such assignment or subletting{ SF (.2) MARinate this l.ase. .ill wlUM &1l"8at
this leas! B1:lS:ll teAllinate 8:flEl eRa apeR thiRy (:10) Mye' WFitteR Rauee Be ba:REllsAl"e al.ai.l9ft te
sa tOFmiRate. Such election may be exercised by written notice served upon Tenaat within such
thirty (30) day period, but if no such notice is served, it shall be deemed that Landlord has elected
to refuse or withhold consent of the proposed assignment or subletting. Landlord asrees not
unrea80nably to refuse or withhold consent to such proposed assignment or subletling. but it
shall conclusively be deemed that Landlord's refusal or withholding of coa.nt is not
unreasonable if the proposed assignee or subtenant, or the character of the tn'w--~ of the
proposed assignee or subtenant, or the use for which the proposed assignee or subcalant is to
occupy said premises, or any of them, is in Landlord's sole discretion less desirable; and it shall
conclusively be deemed that Landlord's refusal or withholding of consent is not unreasonable if
the sublease rent is greater then the rent payable under this Lease, unless Tenant agrees in
writing that such excess shall be paid to Landlord.
SECTION 14,03. CODV of AssilUUnent or Sublease.
Landlord's consent to any assignment or sublease shall not be effective until OIIC (I) fully-
executed copy of any written instrument of assignment or sublease has been delivered to
Landlord.
ARTICLE XV
MERCHANTS' ASSOCIATIOI'f; PROMOTIOI'f FUND; ADVERTISING
SECTION 15.01. Merchants' Association. Promotion Fund and Advertisin2.
la) Tenant covenants and agrees to become a member of any Merchants' Association
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formed by the tenants of the Shopping Center and approved by Landlord, and to maintain such
membership throughout the term of this Lease. Tenant further agrees to pay as its share of the
cost of the activities conducted by such association the sum set forth in Section "J" of the
Indenture of Lease Or such other sum as shall be determined by the Merchants' Association,
hereinafter referred to as .Merchants' Association Payment., payable in advance in monthly
installments to the Merchants' Association. If Landlord elecls, Landlord may collect said
Merchants' Association Payment on behalf of the Merchants' Association in which case Tenant's
Merchants' Association Payment shall be payable monthly together with installments of Fixed
Minimum Rent. In addition, should Tenant fail to make any such Merchants' Asaociation
payments when due, Landlord, on behalf of the Merchants' Association, may collect said
payments in the same manner and with the same rights granted to Landlord under the Lease for
the collection of rent or other charges. Commencing with the second Lease Year, and each Lease
Year thereafter, the Merchants' Association payment shall be adjusted in the manner set forth
below, but never less than the above amount. The amount of the Merchants' Association
payment for each Lease Year, commencing with the second Lease Year, shall be determined as
follows: Using the .Consumer'a Price Index _. U. S. Average, All Item and Commodity Groups.,
published monthly in the "Monthly Labor Review" by the United States Department of Labor, for
the month and year during which the Lease was executed as the denominator and the index
number for the first month of each Lease Year thereafter as the numerator, multiply said
resulting fraction times the above stated Merchants' Association rate. In the event that the
Bureau of Labor Statistics shall change the base period, the new index numben shall be
substituted for the old index numben in making the above computation. In the event the
Consumer'a Price Index of the United States Bureau of Labor Statistics is discontinued,
comparable statistics on the purchasing power of the consumer dollar as published at the time of
said discontinuation by a responsible financial periodical of recognized authority shall be used for
making such computation. Tenant also agrees to cooperate fullY with the Landlord and other
tenants of the Shopping Center in promoting the use of trade names and s/ogana as may be
adopted for the Shopping Center, and all promotional and advertising campalgna, and pay any
special assessments as are required by the Merchants' Association. '1.'itkin thirty (:Jot days after
Billing, TeR8flt alll"eee t9 pay in 8Ehliti8R t9 the fsngamg fiee, a eiRgle iRKi&l1l888SSfBeRt 8Elllal te
the alReY-Rt Bet feFth iR &:eBt:isR "J- sf tlte IREleRNN eC L.ess! feF 'AlRl8tlSnal. supans!. in
iR9'edueiRg die aRsppiRg aeRter tEl the IIlaFItst area ~enant agrees that Landlord or its designee
may in its sole discretion and under its exclusive control and supervision provide the association
with any or all of, and be reimbursed by the association for providing the following; (i) the services
of a marketing director and all stair and outside consultants (including professional marketing
service organizations) deemed necessary by Landlord to carry out effectively the marketing and
public relations objectives of the Merchants' Association including, without limitation, all payroll,
payroll taxes and employee benefits of any such director and stair; (ii) such reasonable amount of
space within the shopping center as may be necessary for the Merchants' Association, the rental
therefor to be comparable to the rentals for similarly sized tenant space in Landlord's building;
(iii) all actual costs incurred in advertising and promoting the Shopping Center, including without
limitation radio, newspaper, television, direct and indirect costs of services, artwork, copy,
printing, paper, stationery and supplies; and (iv) such office equipment, utilities and telephones
as may be deemed necessary by the marketing director.
(bl Notwithstanding that Landlord may form the Association as set forth above,
Landlord or the Landlord's designee reserves the right at any time and from time to time, without
Tenant's consent or approval, to institute in its place a Promotion Fund to furnish and maintain
advertising and sales promotions for the benefit of all tenants of the Shopping Center. Upon
formation of the Promotion Fund, the Association will turn over all amounts in its possession to
Landlord or the Landlord's designee which will open and maintain a bank account, separate from
all of its other bank accounts, into which Landlord or the Landlord's designee shall deposit the
promotion fund contribution paid by Tenant, the aforesaid amount received from the Association,
as well as other contributions which Landlord or the Landlord's designee may receive from time to
time from other tenants of the Center (the aggregate of such funds on hand from time to time
being referred to herein as the .Promotion Fund"). Upon turning over such funds to Landlord or
the Landlord's designee, the Association shall be liquidated and dissolved. Commencing with the
formation of the Promotion Fund, and thereafter while the Promotion Fund is in existence, Tenant
shall pay to Landlord or the Landlord's designee, as Tenant's contribution to the Promotion Fund.
the iRitisl charge and an annual charge ("Promotion Charge") which shall be in the same
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amounts, including any CPI adjustments, as the assessment Tenant would be required to pay to
the Association if the same was in effect, except that the annual charge shall be payable monthly
together with installments of Fixed Minimum Rent. The Promotion Fund shall be used by
Landlord or the Landlord's designee to pay all costs and expenses associated with the
implementation of an ongoing program for the promotion of the Shopping Center, which program
may include, without limitation, special events, sbows, displays, signs, seasonal events,
institutional advertising for the Shopping Center, Promotional literature and other activities
designed to attract customers to the Shopping Center. In connection with the operation of the
Promotion Fund, Landlord or the Landlord's designee shall have the right to employ or cause to
be employed all promotional services and personnel which, in the judgment of the Landlord or the
Landlord's designee, are necessary to administer such fund and such promotional activities, and
such personnel shall be under the exclusive control and supervision of Landlord or the Landlord's
designee who shall have the sole authority to employ and discharge such penonnel. The
Promotion Fund may also be used to defray the cost of administration of the Promotion Fund and
such advertising programs including. without limitation, the salary of the promotion and
advertising director and related administrative penonnel, rent and insurance. Landlord shall
have no obligation to expend on such ongoing programs any funds in excess of the annual sums
contributed to the Promotion Fund after payment of all such adminiatrative and other expenses.
(c) All sums required to be paid by Tenant pursuant to this Article XV shall be
deemed "additional rent", shall be payable without demand, deduction or offset, and for the
purposes of Articles XVIII and XIX of this Lease shall be referred to as the Promotion Charge.
(d) Notwithstanding anything to the contrary contained herein, Landlord or the
Landlord's designee reserves the right, from time to time upon written notice to Tenant, to convert
the Association or Promotion Fund to any other entity selected by Landlord or the Landlord's
designee to perform the services theretofore performed by the Association or Promotion Fund.
Upon the formation of such entity, the provisions of Sections la) and/or (b) hereof which are then
in effect shall cease and become null and 1rllid, and thereafter Tenant shaD comply with the
charter or by-laws of such new entity. Tenant shall pay to such new entity, Landlord, or the
Landlord's designee, as directed by Landlord or the Landlord's designee, the payments theretofore '
required to be paid by Tenant to the Association or Promotion Fund.
(e) If the Shopping Center, as initially constrUcted, shall be expanded by adding floor
area equal to more than ten percent (10%) of the Qoor area initially contained in the Shopping
Center, Tenant shall pay to Landlord, on demand, an amount determined by (i) multiplying the
floor area of the demised premises by the average rate per square foot of all contributions which
tenants of the expansion area shall become obligated to make with respect to promotion and
advertising of the initial opening of such expansion for business, and (ii) dividing the product
thus obtained by two (2).
ARTICLE XVI
DESTRUCl'IOII OF LEASED PREMISES
SECTION 16.01. Total or Partial Destruction.
(aJ If the leased premises shall be damaged by fU'C or other casualty COIIeRd by
Landlord's policies of fire and broad form extended coverage insurance but are not thereby
rendered untenantable in whole or in part, subject to the limitations hereafter set forth, Landlord,
at its own expense, may cause such damage to be repaired, and the rent shall not be abated. If
by reason of such occurrence, the premises shall be rendered untenantable in whole or in part,
subject to the limitations hereafter set forth, Landlord, at its own expense, may cause the damage
to be repaired and the Fixed Minimum Rent shall be abated proportionately as to the portion of
the premises rendered untenantable until the completion of Landlord's repairs thereto.. If the
leased premises shall be damaged or destroyed by a fire or casualty, in whole or in part, and the
Landlord, at its option, decides not to repair and restore the premises, Landlord shaD have the
right, to be exercised by notice in writing delivered to Tenant within sixty (601 days Cram and alter
the occurrence of such damage or destruction, to cancel and terminate this Lease. Either party
shall have the rigbt, to be exercised by notice in writing, delivered to the other within thirty (3Qj
days from and after any occurrence which renders the premises wholly untenantable to cancel
this Lease, if said destruction of the premises occurs within the last three (3J years of the term of
thIS Lease, said cancellation to take effect ninety (90) days from and after the receipt of such
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notice by the other party, .nd in such event this Lease and the tenancy hereby created shall
cease as of the aforesaid cancellation date, the rent to be adjusted as of such date; provided,
however, that if Landlord shall commence repairs or reconstruction of the destroyed premises
during the period prior to the cancellation date, the tenancy shall remain in effect and said notice
of cancellation shall be considered void. In no event shall Landlord be obligated to expend for any
repairs or reconstruction pursuant to this Section 16.01 an amount in excess of the insurance
proceeds recovered by it and allocable to the damage to the leased premises after deduction
therefrom of Landlord's reasonable expenses in obtaining such proceeds and any amounts
required to be paid to Landlord's mortgagee. Nothing in this Section shall be construed to permit
the abatement in whole Or in part of the Percentage Rent, and the calculation of Percentage Rent
shall be governed 80lely by Section 2.0 I (c) hereof.
(b) If the Landlord is required to repair or reconstruct the leased premises pursuant
to the provisions of this Section 16.01, its obligation shall be limited to the building shell. Tenant
at Tenant's expense shall promptly perform all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the demised premises and conunence doing business in
accordance with the provisions of this Lease. Landlord sha1l not be liable for delaya occasioned
by adjustment of losses with insurance carrien or by any other cause 80 long as Landlord shaU
proceed in good faith.
(c) Notwithstanding anything set forth herein to the contrary, Tenant shall be
responsible for all repairs and replacements of damage and/or destruction of the leased premises
necessitated by burglary or attempted burglary, or any other illegal or forcible entry into the
demised premises.
SECTION 16.02. Partial Destruction of Shooninl! Center.
In the event that fift;y percent (50%) or more of the gross leasable Ooor ares of the
Shopping Center shall be damaged or destroyed by fire or other cause notwithstanding that the
leased premises may be unaffected by such fire or other cause, Landlord shall have the right. to
be exercised by notice in writing delivered to Tenant within ~ (60) days after said occurrence,
to cancel and terminate this Lease. Upon the giving of such notice, the term of this Lease shall
expire by lapse of time upon the fifteenth (15thl day after such notice is given and Tenant shall
vacate the leased premises and surrender the same to Landlord.
ARneLl: XVII
EMINENT DOMAIN
SECTION 17.01. Total Condemnation.
If the whole of the demised premises shall be taken by any public or quasi-public
authority under the power of eminent domain, condemnation or expropriation, or in the event of a
conveyance in lieu thereof, then this Lease ahall terminate as of the date on which poaeesaion of
the demised premises is required to be surrendered to the condemning authorily, and Tenant
shall have no claim against Landlord or the condemning authority for the value of the unexpired
term of this Lease.
SECTION 17.02. Partial Condemnation.
If any part of the leased premises shall be so taken or conveyed and if such partial taking
or conveyance shall render the leased premises unsuitable for the business of the Tenant, then
the term of this Lease shall cease and terminate as of the date on which possession of the
demised premises is required to be surrendered to the condemning authority and Tenant shall
have no claim against Landlord or the condemning authority for the value of any unexpired term
of this Lease. In the event such partial taking or conveyance is not extensive enough to render
the premises unsuitable for the business of Tenant, this Lease shall continue in full force and
effect except that the Fixed Minimum Rent and the Percentage Rent Gross Sales Base shall each
be reduced in the same proportion that the floor area of the demised premises so taken or
conveyed bears to such Ooor area immediately prior to such taking or conveyance, such reduction
commencing as of the date Tenant is required to surrender possession of such portion and with
respect to the days during which the demised premises are not open for business the calculation
of Percentage Rent shall be adjusted in accordance with Section 2.01Ic) hereof. Landlord shall
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promptly restore the leased premises. to the extent of condemnation proceeds available (or such
purpose, as nearly as practicable to a condition comparable to their condition as the time of such
condemnation less the portion lost in the taking or conveyance and Tenant shall promptly make
all necessary repairs, restoration and alterations of Tenant's fIXtures, equipment and furnishings
and shall promptly re-enter the leased premises and commence doing business in accordance
with the provisions of this Lease. For purposes of determining the amount of funds available for
restoration of the leased premises from the condemnation award, said amount will be deemed to
be that part of the award which remains after payment of Landlord's rea80nable expenses
incurred in recovering same and of any amounts due to any mortgagee of Landlord, and which
represents a portion of the total sum 80 available (excluding any award or other compensation for
land) which is equitable allocable to the leased premises.
SECTION 17.03. Partial Condemnation of Shonoino: Center.
lal If more than one-third (1/3) of the floor area of the buildings of which the
demised premises are a part or more than one-third (1/31 of the leasable floor area of the
Shopping Center or more then one-third (1/3) of the Common Areas shall be 10 taken or
conveyed, or (b) if any part of the parking ares in the Shopping Center is 10 taken or conveyed
and as a result of such partial taking or conveyance the size, layout or location of the remaining
parking facilities will violate the requirements of the applicable zoning or similar law (or any
permitted variance or exception thereto), then in any or all such events notwithstanding the fact
that the denUsed premises are not so taken or conveyed, Landlord ahall have the right and power,
at its option to be exercised by written notice to Tenant, to terminate this Lease effective either
the date title vests in the condemning authority or the date Landlord is required to deliver
possession of the part so taken or conveyed; provided, however, in the event of a taking or
conveyance described in clause (bl, if Landlord ahall take immediate steps towards eliminating
such violation, this Lease ahall be unaffected and remain in full force and effect. In any event,
Tenant shall have no claim againat Landlord or the condemning authority for the value of any
unexpired term of this Lease.
SECTION 17.04. Landlord's Damalles.
In the event of any condemnation or taking as hereinbefore provided, whether whole or
partial, the Tenant shall not be entitled to any part of the award as damages or otherwise for such
condemnation and Landlord and any mortgagee of Landlord are to receive the full amount of such
award as their respective interests may appear. Tenant hereby expressly waives any right or
claim to any part thereof and assigns to Landlord any such right or claim to which Tenant might
become entitled.
SECTION 17.05. Tenant's Damalles.
Although all damages in the event of any condemnation are to belong to the Landlord and
any mortgagee of Landlord as aforesaid, whether such damages are awarded as full compensation
for diminution in value of the leaaehold or to the fee of the leased premises, Tenant ahall have the
right to the extent that same shall not diminish the Landlord's or such mortgagee's award to
claim and recover from the condemning authority, but not Cram Landlord or such mortgagee,
such compensation as may be separately awarded or recoverable by Tenant under the Eminent
Domain Code in Tenant's own right for or on account of, and limited 80lely to, any cost to which
Tenant might be put in removing Tenant's merchandise, furniture, fixtures, and equipment.
ARTICLE xvm
BANKRUPTCY OR INSOLVENCY
SECTION 18.01. Bankruotcv or Insolvencv.
(a) [f at any time prior to the date herein fIXed as the commencement of the term of
this Lease or at any time thereafter there shall be filed by or against Tenant in any court
pursuant to any statute either of the United States or of any state, a petition in insolvency, or if
Tenant makes an assignment for the benefit of creditors or if there is an assignment by operation
of law, or if Tenant makes application to Tenant's creditors to settle or compound or extend the
time for payment of Tenant's obligatIon, or if any execution or attachment shall be levied upon
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any ",r the Tenant's property or the demised premises are taken or occupied or attempted to be
taken or occupied by someone other than the Tenant, then this Lease shall at the Landlord's
option be cancelled and terminated and, in which event, neither Tenant nor any person claiming
through or under Tenant or by virtue of any statute or of an order of any court shall be entitled to
possession oC the demised premises.
(b) If at any time prior to the date herein fIXed as the commencement of the term of
this Lease or at any time thereafter there shall be filed by or against Tenant in any court of the
United States a petition in bankruptcy or for reorganization or for the appointment of a receiver or
trustee of all or a portion of Tenant's property, then this Lease shall at the Landlord's option be
cancelled and terminated if such cancellation or termination is permitted by the applicable law. If
such termination or cancellation is not permitted by the applicable law, then: (il upon the filing of
a petition by or against Tenant under the Bankruptcy Code, Tenant, as debtor and as debtor in
possession, and any trustee who may be appointed, agree to perfonn each and every obligation of
Tenant under this Lease until auch time as this Lease is either rejected or assumed by order of
the United States Bankruptcy Court; and to pay monthly in advance on the first day of each
month as reasonable compensation for use and occupancy of the Premises an amount equal to all
Annual Minimum Rent and Additional Rent; and to reject or assume this Lease within sixty (60)
days of the filing of such petition under the Bankruptcy Code; and to give Landlord at least forty-
five (45) days prior written notice of any proceeding relating to any assumption of this Lease; and
to give at least thirty (30) days prior written notice of any abandonment of the Premises; any such
abandonment to be deemed a rejection of this Lease; and to do all other things of benefit to
Landlord otherwise required under the Bankruptcy Code; and to be deemed to have rejected this
Lease in the event of the failure to comply with any of the above; and to have consented to the
entry of an order by an appropriate United States Bankruptcy Court providing all of the above,
waiving notice and hearing of the entry of same; (iil no default of this Lease by Tenant, either
prior to or subsequent to the filing of such a petition, shall be deemed to have been waived unless
expressly done so in writing by Landlord; (iii) it is undentood and agreed that this is a Lease of
real property in a shopping center and of nonresidential real property as such a Jease is described
or referred to in the Bankruptcy Code; (iv) included within and in addition to any other conditions
or obligations imposed upon Tenant or its successor in the event of assumption and/or
assignment are the cure of any monetary defaults and the reimbursement of pecuniary loss
within not more than thirty (30) days of assumption and/or assignment; and the deposit of an
additional sum equal to three (3) months' Rent; and the use of the Premises as set forth in the
Indenture of this Lease and the quality and/or lines of merchandise of any goods or services
required to be offered for sale are unchanged; and the reorganized debtor or assignee of such
debtor in possession or of Tenant's trustee demonstrates in writing that it has sufficient
background including, but not limited to, substantial retailing experience in shopping centers of
comparable size and fmancial ability to operate a retail establishment out of this Lease; and the
Premises, at all times, remains a single store and no physical changes of any kind may be made
to the Premises unless in compliance with the applicable provisions of this Lease.
ARTICLE XIX
EVENTS OF DEFAULT; LANDLORD'S REMEDIES
SECTION 19.0 I. Events of Default.
The following shall constitute Events of Default:
(a) If Tenant defaults in the payment of any sum of money (whether Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating Costs, the Utility
Charge, Promotion Charge, additional rent or otherwise) when due and such default shall
continue for a period of more than ten (10) days after the date said payment is due.
(b) Except as to acts, defaults, omissions and/or occurrences characterized, defined,
denoted, or identified in this Lease as Deliberate Events of Default, if Tenant defaults in fulfilling
any of the other covenants of this Lease on Tenant's part to be performed hereunder and such
default shall continue for the period within which performance is required to be made by specific
provision of this Lease, or, if no such period is provided, fifteen (15) days after the date of written
notice from Landlord to Tenant specifying the nature of said default. or, if the default so specified
shall be of such a nature that the same cannot be reasonably cured or remedied within said
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fifteen (IS) day period, if Tenant shall not in good faith have commenced the curing or remedying
of such default within such fifteen (15) day period and shall not thereafter diligently proceed
therewith to completion.
(c) If any execution or attachment shall be issued against Tenant or any of Tenant's
property and shall not be discharged or vacated within ten (10) days after the issuance thereof.
(d) Any event described in Section 18.01.
(e) If Tenant shall abandon the demised premises or if the demised premises shall be
permitted to become vacant, or shan fail to keep the demised premises continuously and
uninterruptedly open for business.
SECTION 19.02. Deliberate Events of Default.
(al Notwithstanding anything to the contrary set forth in this Lease, if Tenant shall
default (I) in the timely payment of Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant's
proportionate share of Operating Costa, the Utility Charge, or Promotion Charge or in the timely
reporting of Gross Sales or any of them, and any such default shall be repested two (2) times in
any period of twelve (12) months; or (2) in the performance of any other covenant of this Lease
more then three (31 times in any period of twelve (121 months, then, notwithstanding that such
defaults shall have been cured within the period after notice as above provided, any further
similar default within such twelve (12) month period shall be deemed to be a Deliberate Event of
Default.
(bl Any default, act, omission or occurrence characterized, defmed, denoted, or
identified elsewhere in this Lease as a Deliberate Event of Default shall also be a Debberate Event
of Default.
(cl In the event of a Deliberate Event of Default, Landlord, without giving Tenant any
notice and without aIfording Tenant an opportunity to cure the default rrenant hereby specifically
waiving any right of tenderl may exercise any or all of its rights under this Lease in addition to
those it may have at law or in equity.
{~
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SECTION 19.03. Termination.
Upon or after the occurrence of anyone or more of such Event 01 Default or Deliberate
Events of Default, if the term shall not have commenced, Landlord may immediately cancel this
Lease by written notice to Tenant, or if the term shall have commenced Landlord may serve upon
Tenant a written notice that this Lease and the term will terminate on a date to be specified
therein, which shall not be less than ten (10) days after the date of such notice and, in either
event, Tenant shall have no right to avoid the cancenation or termination by payment of any sum
due or by other performance of any condition, term or covenant broken. Upon the date specified
in the aforesaid notice of termination, this Lease and the term hereof shall terminate and come to
an end as fully and completely as if such date were the day herein definitely flltCd for the end and
expiration of this Lease and such term, and Tenant shall then quit and surrender the demised
premises to Landlord, but notwithstanding any statute, rule of law, or decision of any court to the
contrluy, Tenant shall remain liable as set forth hereinafter. Notwithstanding Land1ord'a election
to terminate this Lease, Landlord may, at its option, reinstate this Lease at any time tberea{ter,
and a letter from Landlord, Agent or the attorney for Landlord or Agent setting forth landlord's
exercise of its option to reinstate the Lease sha1l be su1l1cient to reinstate this Lease upon all of its
terms and conditions, without any other notice to or from either party to the other.
~
SECTION 19.04. RilZht of Possession.
Upon or after anyone or more Events of Default or Deliberate Events of Default; at if the
notice provided for above in Section 19.03 hereof shall have been given and this Lease shall be
terminated; or if the demised premises become vacant or deserted; then, in all or any of such
events, in addition to, and not in lieu of, all other remedies of Landlord, Landlord may without
notice terminate all services (including, but not limited to, the furnishing of utilitiesj and/or re-
enter the demised premises, either by force or otherwise, and/ or by summary proceedings or
otherwise dispossess Tenant and the legal representative of Tenant or other occupant of the
aemised premises. and remove their effects and repossess and enjoy the demised premises,
together with all alterations, additions and improvements, all without being liable to prosecution
or damages therefor.
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SECTION 19.05. Additional Remedies of Landlord,
(a) In the event of any Event of Default, Deliberate Event of Default, re-entry,
termination and/or dispossession by summary proceedings or otherwise. in addition to, and not
in lieu of, all other remedies which Landlord has under this Lease, at law or in equity: (I) the
Fixed Minimum Rent shall become due thereupon and be paid up to the time of such re-entry,
dispossession and/or expiration; and (2) Landlord may, in its sole discretion, relet the demised
premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term
which may at Landlord's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease, and may grant concessions or free rent;
provided, however, Landlord is expressly under no obligation to relet the demised premises; and
(3) Tenant or the legal representative of Tenant shall also pay Landlord, at Landlord's option and
whether or not Landlord has terminated or cancelled this Lease, as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein contained, for each
month of the period which would otherwise have constituted the balance of the term, the excess,
if any, of the sum of one monthly installment of Fixed Minimum Rent, one-twelfth (l/l2thl of the
annual average Percentage Rent payable hereunder for the three (31 lease years immediately
preceding (or for the entire preceding portion of the term of this Lease if Jess than three (3) lease
years), the monthly portion of the payment of Tax Rent that would have been payable for the
period in question but for such re-entry or termination, the Utility Charge Payable for such
month computed on the basis of the average monthly charge for the said three (31 preceding lease
years or entire preceding portion of the term, as the case may be, the monthly payment of
Tenant's current proportionate share of Operating Costs, the Promotion Charge computed an a
monthly basis over the net amount, if any, of the rents actually collected on account of the lease
or leases of the demised premises for such month. The refusal or failure of Landlord to relet the
demised premises or any part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said deficiency such
expenses as Landlord may incur in connection with reletting, such as court costs, attorneys' fees
and disbursements, brokerage and management fees and commissions, cost of putting and
keeping the demised premises in good order and costs of preparing the demised premises for
reletting as hereinafter provided. Any such liquidated damages shaH be paid in monthly
installments by Tenant on the day speciflCd in this Lease for the payment of Fixed Minimum Rent
and any action brought to collect the amount of deficiency for any month shall not prejudice in
any way either the rights of Landlord to collect the deficiency for any subsequent month by a
similar proceeding; provided only that such liquidated damages shall be reduced by the amount,
if any, of monthly liquidated damages collected by Landlord minus the actual cost (including
attorneys' fees and costs) of collecting such monthly liquidated damages. Landlord, at Landlord's
option, may make such alterations, repairs, replacements and/or decorations in the demised
premises as Landlord in Landlord's sole judgment considers advisable and necessary for the
purpose of reletting the demised premises; and the making of such alterations and/ or decorations
shall not operate or be construed to release Tenant Cram liability hereunder as aforesaid.
Landlord shall in no event be liable in any way whatsoever for failure to relet the demised
premises, or, in the event that the demised premises are relet, for failure to collect the rent
thereof under such reletting.
(b) In any of the circumstances mentioned in the foregoing Section 19.05(a) in which
Landlord shall have the right to hold Tenant liable as therein provided, Landlord shall have the
election, in place and instead of holding Tenant so liable, forthwith to recover against Tenant, as
liquidated damages for loss of the bargain and not as a penalty, a sum equal to the Fixed
Minimum Rent multiplied by the number of months and fractional month which would have
constituted the balance of the term, together with costs and attorneys' fees.
(c) In the event of a breach or threatened breach by Tenant of any of the covenants
or provisions hereof, Landlord shall have the right of injunction and the right to invoke any
remedy allowed at law or in equity as if re-entry, summary proceedings and other remedies were
not herein provided for. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedies under this Lease, or now or hereafter existing at law or in
equity or by statute.
(d) Tenant hereby expressly waives the service of notice of intention to re-enter or to
institute legal proceedings to that end and any and all rights of redemption granted by or under
any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or
in the event of Landlord obtaining possession of the demised premises by reason of the violation
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by Tenant of any of the covenants and conditions of this Lease or otherwise. The words "re-enter"
and "re-entry" as used in this Lease are not restricted to their technical legal meaning.
SECTION 19.06. Confession of Jud2ment.
(a) Upon the occurrence of any Event of Default, or in the event of a Deliberate Event
of Default as defined herein, Tenant hereby empowers any Prothonotary or any attorney oC any
court oC record within the United States or elsewhere to appear for Tenant with declaration filed,
and confess judgment in favor of Landlord, its successors or assigns, as of any term, for any
determined amount to which Landlord would be entitled as damages under the provisions of
Article XIX hereoC including al80 an attorney'a fee for collection of the same of five percent (5%1 of
the total amount of such damages, together with costs of suit, and Tenant hereby waives all
errors, defects and imperfections in entering said judgment or in any writ, or process, or
proceeding thereon or thereto or in any wise touching or concerning the same; and for the
confession and entry of such judgment, this Lease or a true and correct copy thereoC shall be
sufficient warrant and authority. The authority and power contained herein shall not be
exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time
and as often as there is an occurrence of any Event of Default, or in the event of a Deliberate
Event of Default as deCmed herein; and furthermore such authority and power may be exercised
during the original term and any extension or renewal thereof, or after the expiration or earlier
termination of the term hereof.
(bl When this Lease shall be terminated or cancelled by reason of the breach of any
provision hereof, either during the original term of this Lease or any renewal thereof, and also as
soon as the term hereby created or any renewal thereof shall have expired, it shall be lawful for
any attorney as attorney Cor Tenant to file an agreement Cor entering in any court oC competent
jurisdiction an amicable action and confession of judgment in ejectment against Tenant and all
persons claiming under Tenant for the recovery by Landlord of poasession oC the demised
premises, for which this Lease or a true and correct copy thereof shall be his sufficient warrant,
whereupon, if Landlord 80 desires, a writ of possession may issue forthwith, without any prior
writ or proceedings whatsoever, and provided that if for any rea80n after such action shaH have
been commenced the same shaH be terminated and possession remain in or be restored to
Tenant, Landlord shall have the right upon any subsequent deCault or deCaults, or upon the
termination or cancellation of this Lease as hereinbefore set forth, to bring one or more amicable
action or actions as hereinbefore set Corth to recover possession as aforesaid.
SECTION 19.07. Waivers.
(a) Tenant expressly waives:
(I) The benefit of all laws, now or hereafter in force, exempting any goods on
the demised premises, or elsewhere, from distraint, levy or sale in any legal proceedings taken by
Landlord to enCorce any rights under this Lease.
(2) The benefit of all laws now made or which may hereafter be made
regarding any limitation as to the goods upon which, or the time within which, distress is to be
made after the removal of goodS, and further relievea Landlord oC the obligation of proving or
identifying such goods. it being the purpose and intent of this provision that all goods of Ten ant,
whether upon the demised premises or not, shall be liable to distress for rent.
(3) The right to issue a writ of replevin for the recovery oC any goods seized
under a distress for rent or levy upon an execution Cor rent, damages or otherwise.
(41 The right to delay execution on any real estate that may be levied upon to
coUect any amount which may become due under the terms and conditions of this Lease and any
right to have the same appraised, and Tenant authorizes any Prothonotary or clerk to enter a writ
of execution or other process upon Tenant's voluntary waiver and further agrees that said real
estate may be sold on a writ of execution or other process.
(5) All rights under any law, ordinance or statute relating to Landlord and
Tenant rights to the extent of hereby authorizing the sale of any goods distrained for rent at
anytime after seven (7) days Crom said distraint without appraisement and condemnation thereof.
16) The right to three (3) months' notice and/or fifteen (15) or thirty (30)
days' notice required under certain circumstances by The Pennsylvania Landlord and Tenant Act
of 1951, as amended, hereby agreeing that any notice time period as required in this Lease
Agreement shall be sufficient in either or any such case. Landlord and Tenant agree that this
Section (6) shall only be applicable if the demised premises is situate in Pennsylvania.
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(bl The parties hereby waive trial by jury in any action, proceeding or counterclaim
brought by either party against the other on any matter whatsoever arising out of. or in any way
connected with, this Lease, the relationship of Landlord and Tenant created hereby, Tenant's use
or occupancy of the Demised Premises, and/or any claim for injury or damage. In the event
Landlord commences any action or proceeding for nonpayment of Minimum Rent or any item of
additional rent due hereunder, Tenant shall not interpose any counterclaim of any nature or
description in any such action or proceeding. The foregoing, however, shall not be construed as a
waiver of Tenant's right to assert such claim in a separate action or proceeding instituted by
Tenant.
ARTICLE XX
MISCELLANEOUS
SECTION 20.01. Access bv Landlord.
Landlord may at all reasonable times during the term of this Lease enter to inspect the
demised premises and/or may show the demised premises and building to othen. At any time
within one (11 year immediately preceding the expiration of the term of this Lease, banlllsFd shall
kw-e the Figkt te Eli.pla)- 8ft the _eRaF Bf the demised premiseB fIIw.t Ret 18 as te uRflae8B8\11y
9BstNet tile ~Jie'\llJ' tiler..f 9F aBseIl therete) the lNltSRWY .Fer RaB!" lip anll 6MB we'" peABa
Landlord may show the premises and all parts thereof to prospective tenants between the hours
of 9:00 A.M. and 9:00 P.M. on any day. Landlord al80 reserves the right after notice of intention
to so enter (except that in the event of an emergency, no notice shall be required) to enter the
premises at any time and from time to time to make such repairs, additions or alterations as it
may deem necessary for the safety, improvement or preservation thereof, or of the building in
which the demised premises is contained, but Landlord assumes no obligation to do 80, and the
performance thereof by Landlord shall not constitute a waiver of Tenant's default in failing to
perform the same. Landlord shall in no event be liable for any inconvenience, disturbances, loss
of business or other damage to Tenant by reason of the performance by Landlord of any work in,
upon, above or under the demised premises. If Tenant shall have vacated or deserted the
demised premises or, in the event of an emergency, or if in any other instance after Landlord has
given notice of Landlord's intention to enter, Tenant or Tenant's employees shall not be penonally
present to permit an entry into the demised premises, then, in any such event, Landlord or its
agents or employees may enter the same by the use of foree or otherwise without rendering
Landlord liable therefor, and without in any manner affecting Tenant's obligations under this
Lease. The exercise of any such reserved right by Landlord shall not be deemed an eviction or
disturbance of Tenant's use and possession of the premises and shall not render Landlord liable
in any manner to Tenant or to any other person, nor shall the same constitute any grounds for an
abatement of any rent hereunder.
SECTION 20.02. Holdinll Over.
Should Tenant hold over in possession of the demised premises after the expiration of
the term hereof without the execution of a new lease agreement or extension or renewal
agreement, Tenant, at the option of Landlord, shall be deemed to be occupying the demised
premises from month to month, subject to such occupancy being terminated by either party upon
at least thirty (30) days' written notice, at the rental, including, but not limited to, Fixed
Minimum Rent computed at a rate which is double the Fixed Minimum Rent rate in effect for the
last full month of the term of this Lease, Percentage Rent, Tax Rent, Tenant's proportionate share
of Operating Costs, the Utility Charge, Promotion Charge, and additional rent all calculated, from
time to time, as though the term of this Lease had continued and otherwise subject to all of the
other terms. covenants and conditions of the Lease insofar as the same may be applicable to a
month to month tenancy.
SECTION 20.03. Successors.
All rights, obligations and liabilities herein given to, or imposed upon, the respective
parties hereto shall extend to and bind the several respective heirs, executors, administrators,
trustees, receivers, legal representatives, successors and assigns of the said parties; and, if there
shall be more than one tenant, they shall all be bound jointly and severally by the terms,
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covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee,
legal representative, trustee, receiver, legatee or other personal representative or Tenant unless
the assignment to such party has been approved by Landlord in writing as provided in Section
14.01(a) hereof. Any reference to any department store herein shall apply to its successors,
replacements or assigns.
SECTION 20.04. Ouiet Eniovrnent.
So long as Tenant shall pay the rents herein provided within the respective times
provided therefor, and provided and 80 long asTenant observes and performs all the covenants,
term and conditions on Tenant's part to be observed and performed, Tenant shall pesceably and
quietly hold and enjoy the demised premises for the term hereby demised without hindrance or
interruption by Landlord or any other person or persons lawfully claiming by, through or under
Landlord, subject, nevertheless, to the terms and conditions of this Lease. Landlord'. liability
under this Section shall cease upon a conveyance by landlord of the premises.
SECTION 20.05. ~.
The waiver by Landlord of any breach of any term, covenant or condition herein
contained shall not be deemed to be a waiver or any subsequent breach of the same or a waiver of
any other term, covenant or condition herein contained. The subsequent acceptance by Landlord
of rent due hereunder or any or all other monetary obligations of Tenant hereunder, whether or
not denoted as rent hereunder, shall not be deemed to be a waiver of any preceding breach by
Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to make
the particular payment 80 accepted, regardless of Landlord's knowledge of such P....,....t;"1 breach
at the time of acceptance of such rent. No covenant, term or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing and executed by
Landlord.
SECTION 20.06. Custom and Uswze.
Any law, usage or custom to the contrary notwithstanding, Landlord shaD have the right
at all times to enforce the covenants and conditions of this Lease in strict accordance with the
terms hereof, notwithstanding any conduct or custom on the part of the Landlord in refraining
from SO doing at any time or times with respect to the Tenant hereunder or with respect to other
tenants of the Shopping Center. The failure of Landlord at any time or times to enforce its rights
under said covenants and provisions strictly in accordance with the same shall not be oonatrued
as having created a custom in any way or manner contrary to the specific terms, provisions and
covenants of this Lease or as having in any way or manner modified the same
SECTION 20.07. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than any payment of
rent or additional rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent or additional rent then due and payable, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as rent be deaDed an
accord and satiafaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy provided in this
Lease, at law or in equity.
SECTION 20.08. Performance ofTenant's Covenants.
Tenant covenants and agrees that it will perform all agreements and "'-rYe all
covenants herein expressed on its part to be performed and observed and that it win promptly,
upon receipt of written notice speciJYing action desired by Landlord in connection with any such
agreement or covenant, comply with such notice; and further, that if Tenant shall not comply
with any such notice to the satisfaction of Landlord prior to the date on which such
noncompliance would constitute an Event of Default, in addition to, and not in lieu of or in
limitation of any other remedy which Landlord may have pursuant to this Lease, at law or in
equity, Landlord may, but shall not be obligated to, enter upon the premises and do the things
specified in said notice. Landlord shall have no liability to Tenant {or any losa or damage
resulting in any way from such action and Tenant agrees to pay upon demand, as additional rent,
any expense incurred by Landlord in taking such action. Notwithstanding the foregoing,
Landlord's performance of any or all of Tenant's covenants shall not release Tenant from liability
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for non-performance.
SECTION 20.09. Entire A2reement.
The Indenture of Lease, the Lease Agreement, the Exhibits and Rider, if any, set forth all
the covenants, promises, agreements, conditions and understandings between Landlord and
Tenant concerning the demised premises and there are no covenants, promises. agreements,
conditions or understandings, either oral or written, between them other than as herein set forth.
All prior communications, negotiations, arrangements. representations, agreements and
undentandings, whether oral, written or both, between the parties hereto, and their
representatives, are merged herein and extinguished, this Lease supeneding and canceling the
same. Except as herein otherwise provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Landlord or Tenant unleaa reduced to writing and
executed by the party against which such subsequent alterations, amendment, change Or
modification is to be enforced. If any provision contained in any rider hereto is inconsistent with
any printed provisiona of this Lease, the provision contained in such rider ahaII supersede said
printed provision. Tenant hereby acknowledges that: tal this Lease contains no reatrictive
covenants or exclusives in favor of Tenant; (bl this Lease shall not be deemed or interpreted to
contain, by implication Or otherwise, any warranty, representation or agreement on the part of
Landlord that any department store or regional or national chain store or any other merchant
shall open for business or occupy or continue to occupy any premises in or a<ljoining the
Shopping Center during the term of this Lease or any part thereof and Tenant hereby expressly
waives all claim with respect thereto and acknowledges that Tenant is not relying on any such
warranty, representation or agreement by Landlord either as a matter of inducement in entering
into this Lease or as a condition of this Lease or as a covenant by Landlord.
SECTION 20.10. No Partnershio.
Landlord does not, in any way or for any purpose, become a partner of Tenant in the
conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with
Tenant The provisions of this Lease relating to the Percentage Rent payable hereunder are
included solely for the purpose of providing a method whereby adequate rent is to be measured
and ascertained.
SECTION 20.11. Notices.
All payments of rent and any and all other monetaly obligations of Tenant accruing
hereunder, whether or not denoted as rent, shall be paid to Landlord or its agent at the address
set forth in the Indenture of Lease, until Tenant is notified otherwise in writing, and all notices
given to Landlord hereunder shall be in writing and forwarded to it at such addreaa, postage
prepaid, by registered or certified mail, return receipt requested, or prepaid by any nationally
recognized express or overnight mail delivery service which provides proof of receipt All notices
to Tenant shall be forwarded to it at the address set forth in the Indenture of Lease, until
Landlord is notified otherwise in writing. by postage prepaid, registered or certified mail, return
receipt requested, or prepaid by any nationally recognized express or overnight mail delivery
service which provides proof of receipt, or by delivery in person and in the event of a delivery in
person, the affidavit of the person making such delivery shall be conclusive proof of the delivery
and of the date and time of such delivery. All notices shall be deemed to have been given on the
date when deposited in the mail receptacles maintained by the corporation which has been
chartered by the United States Government to operate and deliver the mail, deposited with the
express or overnight mail service as aforesaid or, in the case of notices delivered in person to
Tenant, when so delivered. Notices by the Landlord may be given on its behalf by Agent or by any
attorney for Landlord or Agent.
SECTION 20.12. Captions and Index.
The captions and index appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or intent of such sections
or articles of this Lease nOr in any way affect this Lease.
SECTION 20.13. Tenant Defined: Use of Pronoun.
The word "Tenant" shall he 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 then one
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Tenant, any notice required or permitted t-y the term of this Lease may be given by or to anyone
thereof, and shall have the same force and effect as if given by or to all thereof. The use of the
neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even
though Landlord or Tenant may be an individual, a partnership, a corporation, or a group or two
or more individuals or corporations. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural number where there is more than one Landlord or
Tenant and to either corporations, associations, partnerships or individuals. males or females,
shall in all instances be assumed as though in each case fully expressed.
SECTION 20.14. Neotion of Personal Liabilitv.
Notwithstanding anything contained herein to the contrary, Tenant !'grees that both
Landlord aDd ADY mortpc.. shall have no personal liability with respect to any of the proviSions
of this Lease and Tenant shall look 80Iely to the estate and property of Landlord in the land and
buildings comprising the Shopping Center of which the demised premises forms a part for the
satisfaction of Tenant'. remedies, including. without limitation, the collection of any judgment or
the enforcement of any other judicial process requiring the payment or expenditure of money by
Landlord or aDY mortes,.. in the event of any default or breach by Landlord or SJlY mortes,..
with respect to any of the tenDS and provisions of this Lease to be observed and/or performed by
Landlord or ADY mortpcee, subject, however, to the prior rights of any holder of any Mortgage
covering all or part of the Shopping Center, and no other assets of Landlord or aDY mortpcee or
any principal of Landlord or aDY mortpcee shall be subject to levy, execution or other judicial
process for the satisfaction of Tenant's claim and, in the event Tenant obtains a judgJllCnt against
Landlord or aDY mortpcee, the judgment docket shaH be so noted. This Section shall inure to
the benefit of Landlord's successors and assigns and their respective principals.
The references to 'Landlord" in this Lease shall be limited to mean and include only the
owner of the Shopping Center of which the Premises forms a part. In the event of a sale or
transfer of such interest (except a Mortgage or other transfer as security for a debt!, the
"Landlord" initially named herein. or in the case of a subsequent transfer, the transferor, as of the
date of such transfer, shall be automatically released from all liability for the performance or
observance of any term, condition, covenant or obligation required to be performed or observed by
Landlord hereunder; and the transferee shaD be deemed to have assumed all of such terms,
conditions, covenants and obligations except as to pre-existing defaults by Landlord. The
covenants and obligations contained in this Lease to be performed on the part of "Landlord" shall
be binding on the Landlord or any transferor only during the periods in which it is a Landlord
hereunder. The name and designation Crown American Realty Trust is the name of the Trust
and the collective designation of the Trustees from time to time under the Declaration of Trust
amended and restated as of August 6,1993, and as may be further amended and/or restated, and
all persons dealing with the Crown American Realty Trust must look 80Iely to the Shopping
Center for the enforcement of any claims against Crown American Realty Trust, as neither the
Trustees, offlOers, agents or shareholders of the Crown American Realty Trust assume any
per80nal liability for obligations entered into by the Crown American Realty Trust by re&80n of
their status as said Trustee, officer, agent or shareholder.
SECTION 20.15. Effect of Governmental Umitation on Rents and Other Charv:es.
In the event that any law, decision, rule or regulation of any governmental body having
jurisdiction shall have the effect of limiting for any period of time the amount of rent or other
charges payable by Tenant to any amount less than that otherwise provided punuant to this
Lease, the following amounts shall nevertheless be payable by Tenant: (a) throughout such period
of limitation, Tenant shall remain liable for the maximum amount of rent and other charges
which are legally payable (without regard to any limitation to the amount thereof expressed in
this Lease except that all amounts payable by reason of this Section 20.15 shall not in the
aggregate exceed the total of all amounts which would otherwise be payable by Tenant pursuant
to the terms of this Lease for the period of limitation), (bl at the termination of such period of
limitation, Tenant shall pay to Landlord, on demand but only to the extent legally collectible by
Landlord, any amounts which would have been due from the Tenant during the period of
limitation but which were not paid because of such limiting law, decision, rule or regulation. and
{el for the remaining term of this Lease following the period of limitation, Tenant shaH pay to
Landlord all amounts due for such portion of the term of this Lease in accordance with the terms
35
D: \ Legal \LcslieH\LEASES\CCM.Capitol Tuxedo-tl-5-99.doc
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hereof calculated as though there had been no intervening period of limitation.
SECTION 20,16. Partial Invaliditv: Seoarate Covenants.
If any term, covenant or condition of this Lease or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease or
the application of such term, covenant or condition to persons or circumstances other than those
as to which it is held invalid or unenforceable shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid and be enforced to the fullest extent permitted
by law. Furthermore, each covenant, !'greement, obligation and other provision contained in this
Lease is, and shall be deemed and construed as, a separate and independent covenant of the
party bound by, undertaking or making the same, and not dependent an any other provision of
this Lease unless expressly 80 provided.
SECTION 20.17. Recordinll.
Tenant shall not record this Lease without the written consent of Landlord. If Tenant
requests, and Landlord consents, the parties shall execute and aclmowledge a short form of Lease
for recording purposes which shall be recorded at Tenant's expense.
SECTION 20.18. BrokeraRe Commission.
Landlord and Tenant each warrant to the other that neither has been represented by any
Broker with regard to this Lease Agreement. Further, Landlord and Tenant each agree to
indemnify and hold hannless the other should any claim be made by any Broker claiming to have
represented either Landlord or Tenant regarding this Lease Agreement.
SECTION 20.19. Construction.
ft is the intent of the parties hereto that if any term, covenant, condition or agreement of
this Lease is capable of two or more constructions, one or more of which would render the
provision void, and the other or others of which would render the provision valid, then the
provision shall have the meaning or meanings which would render it valid.
SECTION 20.20. Pemetuitv.
If the term of this Lease shall not have commenced within three (3) years of the date
hereof, then this Lease automatically shall become null and void and both Landlord and Tenant
shall be relieved of all obligations hereunder.
SECTION 20.21. Choice of Law.
This Lease shall be construed and enforced in accordance with the laws and jurisdiction
of the State in which the demised premises is situate.
SECTION 20.22. Joint Prenaration.
This Lease is to be deemed to have been prepared jointly by the parties hereto and any
uncertainty or ambiguity existing herein, if any, shall not be interpreted against any party, but
shall be interpreted according to the application of the rules or interpretation for arm's length
agreements.
SECTION 20.23. Interlineation.
Whenever in this Lease any printed portion has been stricken out, whether or not any
relative provision has been added, this Lease shall be construed as if the material so stricken was
never included herein and no inference shall be drawn from the material so stricken out which
would be inconsistent in any way with the construction or interpretation which would be
appropriate if such material were never contained herein.
SECTION 20.24. Submission of Lease to Tenant.
THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO
BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF
THE DEMISED PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE Ar>fY OBLIGATIONS UPON
EITHER PARTY UNTIL THE EXECUTION THEREOF BY LANDLORD AND THE DELIVERY OF AN
EXECUTED ORIGINAL COpy THEREOF TO TENANT OR ITS REPRESENTATIVE.
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D,IL.gallLesli.HI LEASESlcCM-Capltol Tu.""do-11-5.99.doc
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Revision Date: August 28,1996
CAPITAL CITY MALL
Camp Hill, PA
EXHIBIT "A"
(SATELLITE TENANTS "AS IS")
1. Tenant has inspected the premises and agrees to accept the premises in an 'as is' condition.
Except as provided in the foregoing Lease Agreement, Landlord shall not be required expend
any amount of money or do any other act which might be required to make the demised
premises suitable for the use permitted in the Lease Agreement.
2. Tenan~s Plans and Specifications:
A. Complete professionally prepared working drawings and specifICations shall be
submitted for review andlor approval by Landlord within thirty (30) days after the
Landlord provides the tenant with a criteria package for the demised space.
B. Drawings and specifications shall be prepared and arranged in four (4) categories as
applicable: Architectural, H.V.A.C., Plumbing and ElectricaL The practice of
combining two or more groups onto one plan should be avoided. Each group shall be
clearly designated. Plans shall be drawn at liS" scale or larger, on a standard paper
size no larger than 30" x 42" throughout. All drawing submissions shall include
properly completed Landlord Conslnlction Standards (LCS) Drawings (set of LCS
Drawings are part of Tenant Criteria Package).
C. During all phases of plan development and prior to bidding or commencing of
constmction, the tenant shall make a physical on-site inspection of the demised space
and verify conditions, dimensions etc. of the demised space. Failure to do SO shall be at
the risk and sole expense of the tenant.
D. Landlord's plan review andlor approval is for compliance with Landlord's criteria only,
and this approval does not relieve tenant of responsibility for compliance with local,
state and federal codes, and regulatol)' agencies governing this area.
Stores Under 5,000 Sq. Ft. .................
800
Stores Over 5,000 Sq. Ft. ....... .. . . . . . . . . . . . . . .. $ 1,000
Restaurants. . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .. $ 1,200
You invoiced upon a"proval?f plans. All fees are payable to Crown American
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3. Compliance:
Tenant shall be required to attain all necessary approvals and permits from state and local
governing authorities including a final inspection and a Certificate of Occupancy, as required.
Tenant shall also comply with any requirements of the American's with Disabilities Act (A.D.A.)
as applicable and as mandated by local and state authorities.
4. Mandatory Remodeling Requirements:
If the store has not been remodeled within the last three (3) years, the following requirements
will apply. If the store has been remodeled within the past three (3) years, remodeling
requirements will be enforced at Landlord's option.
Mandatory Remodeling Requirements Include:
A. Storefront - Landlord doea encourage pop-outs of storefronts, and/or sign band area.
final pop-out limitations shall be determined by the Landlord. No more than 50'.16 of
storefront to be open to the mall common area. Minimal storefront remodeling
requirements would include all new finishes, materials, and signage.
B. HVAC Unit-Ifunit is more than ten (10) years old, Landlord will require a written
statement from a bonafide HV AC Contractor that the unit has been inspected in all
phases of operation and is in good working condition.
C. All electrical work shall comply with the latest National Electrical Code (N.E.C.), and all
federal, SlAte and Local Codes. Landlord does not Permit:
I. Exposed light source in public or sales area.
2. Romex - All wiring must be in conduit.
D. Ceiling Tile - Landlord recommends the use of a 2' x 2' ceiling tile pattern.
E. The tenanes store design, drawings, specifications and construction must comply with
all the Landlord requirements presented within the Tenant Design &. Construction
Criteria Handbook. Tenant, tenanes agents, tenant's architect and/or engineer, and
tenant's conlractor(s) and/or subcontractor(s) are responsible to comply with all
Landlord requirements and specifications.
5. Tenant's Construction/Remodel Work:
Tenant shall promptly commence and thereafter diligently proceed with and complete the
remodeling of the demised premises within sixty (60) days after the approval of such plans and
specifications. If Tenant shall neglect, fail or refuse to commence its wod:: as aforesaid or
thereafter neglects, fails or refuses to diligently proceed with and complete its wad::, the
Landlord, in addition to other rights or remedies it may have and after fifteen (t 5) days notice
to Tenant, may (a) complete Tenant's remodeling work at Tenanes expense and thereupon the
Rental Commencement Date shall occur and all of Tenant's payment obligations pursuant
thereto will commence, (h) cause the Rental commencement Date to occur and aU of Tenant's
payment obligations pursuant thereto to commence, notwithstanding the incomp1etion of
Tenant's remodeling work, or (c) declare the Lease canceled and of no further force and effect.
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A. Tenant's progress and workmanship is subject to Landlord's inspection and approval.
Any violation involving the Tenant's store construction shall be corrected and made
acceptable to the Landlord, at the Tenant's sole responsibility and cost. Tenant's failure
to correct violations within fifteen (15) days of notice of same to the tenant shall, at
Landlord's option, result in correction of same by Landlord or its agent. Related costs
will be billed to the tenant as additional rent under the terms and conditions of the
lease.
B. Tenant shall perform and cause tenanfs contractor(s) and subcontractor(s) to perform
all tenanfs work in a manner so as not to damage, delay or interfere with the
prosecution or completion of any work being performed by the Landlord or the
Landlord's contractor(s) in the demised space or in or about any other portion of the
Shopping Center, or to comply with all construction procedures and regulations
prescnbed in, or pursuant to, this Exhibit "A" for the execution of the tenanfs work and
the coordination of such WOtT with WOtT being performed by the Landlord or by the
Landlord's contractor(s).
1. Landlord, in its sole discretion, and for any reason, shall have the right to order
tenant to terminate any construction work: being performed by or on behalf of
tenant in the dem.ised premises. Upon notification from Landlord to tenant to
cease any such work:, tenant shall forthwith remove from the demised premises
all agents, employees and contractors of the tenanfs performing such work
until such time as Landlord shall have given its consent for the resumptions of
such constnlction work and tenant shall have no claim for dAmage of any
nature whatsoever against Landlord in connection therewith.
.'
Should tenant fail to comply with the rules and regulations established by
Landlord or its contractors in any union contract to which Landlord, its
contractors or any subcontractor may be a party. Landlord shall have the
option either to cancel the lease agreement or to compel tenant immediately to
suspend the work: being performed.
3. All work must be performed by bonafide licenses contractor(s) and confonn
with all applicable laws, rules, regulations, specifications, codes, and standards.
2.
6.
Insurance:
2.:'
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Tenant is responsible to furnish the Landlord with evidence of general liability and property
damages insurance coverage for the tenanfs contractor(s) and/or sub- contractor(s) prior to
the start of any construction within the demised space. General liability insurance.mall be a
combined single limit of one million dollars ($1,000,000.00). Tenant shall indemnify and hold
harmless the Landlord from and against any claims, actions or dAmages resulting from the acts
or neglects of the subcontractor(s) in the performance of the tenanfs worle.
7.
Notification:
Tenant shall notify the Landlord a minimum of one (1) week prior to moving onto the job tocommence construction. Tenant must also check in with the mall manger and present him/her
with a set of approved plans along with the building permit number (where applicable).
8, Service Charges:
The following services will be handled directly by the Mall Management Office with all
associated costs invoiced to the tenant's contractor(s), unless directed otherwise by the tenant in
writing to the Management office.
Page 3
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A. Trash dumpster will be provided and handled for the demised space up to the tenant's
opening date. Landlord will locate a construction dumpster. The tenant's contractor(s)
or subcontractor(s) are respon sible to place all rubbish, construction trash and surplus
material in the dumpster. The tenant or its contractor(s) is cautioned against having
trash accumulated within the demised space. Should this develop, Landlord will
remove the trash and charge the tenant for all costs.
B. Temporary electrical service as necessary will be provided under the following
conditions:
I. Termination of this service is at Landlord's sole discretion.
2. Landlord is not responsible for interruption of this service.
3. One (I) hook-up is provided for the demised space.
C. Roof work and reflashing for H.V.A.C. equipment, plumbing vents, penetrations, etc.,
shall be provided by the Landlord's roofing contrac1Or only (as per Landlord
construction standard drawings). Tenant shall be responsible for the removal of any
abandoned rooftop equipment within the demised premises.
D. Sprinkler system modific4tion with respect to the tenant design and specifications will
be perfonned by the landlord's Sprinkler contractor, in compliance with N.F.P.A.
Regulations and Landlord's Insurance Co.
9. Waiver of Liens:
A. Tenant agrees to enter into Waiver of Liens Agreements or Waiver of Rights to file Lien
contract with any of its contractors, subcontractors, materialmen, or other persons
furnishing services, labor or materials concerning, in any way, work to be completed
in part, or while, in connection with tenant's work and provide Landlord with copies of
same.
B. Any mechanic's lien filed against the demised premises or the Shopping Center for
work claimed to have been done or for materials claimed to have been furnished to
Tenant shall be discharged within twenty (20) days after filing by bonding or as
provided or required by law or in any other lawful manner. Tenant's failure to comply
with this (Paragraphs 9, A &: B) shall be deemed an event of default.
10. Hazardous Materials:
Tenant and/or its architect and/or contractor(s) and/or subcontractor(s) shall not specify,
furnish, install or use any materials containing any hazardous or carcinogenic producing
materials in the completion of tenant's work. Ten (to) working days after completion of
tenant's work, the tenant or tenant's architect shall deliver to Landlord a certification that none
of the materials used in the completion of tenant's work contains hazardous/or carcinogenic
producing materials.
11. H.V.A.C. Maintenance:
Within ninety (90) days of tenant's opening for business, tenant is required to place in force
and keep in force for the full term of the lease agreement a maintenance agreement, witb a
reputable licensed company, for the service, repair and maintenance of all the tenant's H.V.A.C.
unites) proViding service to the demised space. The agreement shall provide for but not be
limited to at least four (4) inspection and services each year and a minimum of eigbt (8) filter
changes each year. A copy of the agreement must be delivered to the Landlord.
I'age 4
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12. After Tenant opens for business, Landlord will be responsible for removing Tenant's trask,
excluding grease trap residue, from the rear of the demised space to a compactor and/or
holding bin (s). Tenant shall contact mall management office prior to opening for busine.u to
make all necessary arrangements for trash removal. Tenant is responsible to separate dty truh
from wet and suitably bag and/or containerize same as directed by the Landlord. A cha~ for
removal will be levied on the Tenant based on a fIXed fee, subject to periodic escalation,
comparable to existing local rates.
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('age 5
EXHIBIT .C.
UTILI TY SCtf:OULE
RATE.
1. Utility Services shall be furnished to individual tenants as needed. Tenant agrees to
use and pay for utility service supplied by landlord 88 additional rent under the Lease on a monthly
basis. landlord ..Y e8ti~ate such periodic billinq8 and conftr. and/or adjust 8ame on a Jess frequent
basts. Charges for utility service shall be in accordance with Tenantls use category as if Tenant
were serviced directly by the lacs 1 public utility or BUnicip.l .uthority then supplying utility ser_
vice to the Shopping Conter (the "t.riff") and any supplements thereto or .ny tariffs issued to super_
.ede said t.riff, whiCh ..y here.ft.r be filed, end Tenant ehall .1.0 pey any t..... surchsrg.s,
I~O$ltion., penelti.. or other .dditlon.l charge. applic.ble to the utility .ervice ueed by it which
are not included in the .foreaeid rst. and t.rlff. provided thst such t..... .urch.rge., iepo.ition. .
or other ch.rge. are r.quired by Isw to be collected fro. T.nant Or sr. peid by Landlord to it.
.uppli.r of utility service.
2. Notwithstanding anything contaln.d h.r.in to the contrery, in the .vent that the rat.
which would b. charged by . public utility for equivslont 800Unto of oorvico becoees inauffici.nt to
cOMpens.t. Landlord for tha r.a.on.bl. coot. of eupplying utilitiss to Tonant, then Lendlord eh.Il b.
.ntitisd to c"erg. Tenant an _aunt .qual to the ",,!ual coot of eupplying the utility service.
tog.th.r with an aoount not to ..ceed 151 of each utility bill.
J. In no .vent oh.ll Landlord be lioble for the quality, quantity, fsiIure or int.rruption
of any utility service to the ~i..d presioeo.
.. Th. Landlord ..Y. .t ita option. inot.ll an En.rgy Hsnago..nt Syst.. to effici.ntly con-
o.rv. utility usage. Tenant agr... to poy a oonthly charge of lSO.DO IS Tenant'o ohare of the En.rgy
Manag...nt SYltes purch.... in.tsllaent. ..intenance and upgr.de c08t.. Tenant sh.ll reait this
charge. which will be aeperotely identified in the original invoic., eo part of the Tenent's regular
monthly ueility psyeent.
ELECTRIC SERVICE.
Electric energy supplied hereunder by Landlord sholl be nominally si.ty-cycle. unregulated
alternating current, in the rara of ) phese, . wires, and of 8 voltage designated by Landlord.
Instollation of Tenant'a electric facilities sholl be in conformity with the Lesse, the Notional
Electric Code and the requir...nts of the public utility or municipal .uthority then furnishing
electricity to the Shopping Center.
If Tenant is replaCing a prior tenant in the demised premises, Landlord will charge the new
Tonant . 1150.00 charge for the transfer of utility services responsibilities froo Lsndlord to new
Tenant.
RIGHT TO CUT-OfF.
landlord shall have the right to discontinue its utility service to Tenant and to remove
its property from Tenant's premises whenever bills for utilities are in arrears beyo"d the grace
periOd set forth in the lease, or in case Tenant fails to ~omply with or perfor~ any of the terms,
conditions or obligations or violates any of the covenants set forth in the Lease beyond the grace
period set forth in the Lease.
APPLICATION rOR UTILITY SERVICE.
Tenant shall make application for utility service to Landlord, in accordance with rules
and regulations set forth in Landlord1s Utility booklet, where such service is supplied by Landlord.
.
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hytltte To:
PR CAPITAl CITY UNITED PARTNERSHIP
PO lOX.....
CLEVELAND OH 44193
To:
CIPIaITUMdo, Inc.
5511 CaIliate Pin
Med'llnicllMlrg PA 17050
FOR "QUJRES~;JuIea YtQI TEL; 717.737-1215 orfAX: 717.737-0107
STATEMENT
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Fntm: CAPITAL-CITY MALL
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
~ )
)
CAPITOL TUXEDO, INC. )
)
Derendant. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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CIVIL ACTION - LAW
No. 06-4923
AFFIDAVIT OF SERVICE OF
NOTICE UNDER RULE 2958"1 OF
JUDGMENT AND EXECUTION
THEREON, NOTICE OF
DEFENDANT'S RIGHTS
Filed on Behalf of the Plaintiffs,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PAID No. 43523
James F, Rosenberg
Pa. I.D. No. 53552
MARCUS & SHAPIRA, LLP
Firm No, 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
I IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
~ )
)
CAPITOL TUXEDO, INC. )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No. 06-4923
AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958"1 OF JUDGMENT
AND EXECUTION THEREON. NOTICE OF DEFENDANT'S RIGHTS
I, James F. Rosenberg, being duly sworn according to law, hereby certify that:
1. I served upon Capital Tuxedo, Inc., Defendant in the within action, an original
Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's Rights by
United States Certified Mail, Return Receipt Requested on the 1 st day of September, 2006. A
true and correct copy of said Notice is attached hereto as Exhibit A; and
2. Attached hereto as Exhibit B is the original certified return receipt issued by the
United States Post Office, providing proof of service of the Notice Under Rule 2958.1 of
Judgment and Execution Thereon, Notice of Defendant's Rights on September 1,2006.
es F. nberg
ARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
Sworn to and subscribed
before me this ~ day of
September, 2006.
~D.MU~
Notary Public
My Commission Expires:
COiV'.MONWEALTH OF PENNSYLVANII,
Notarial Seal
Laurie B. MilIer, Notary Public
City of Pittsburgh, AIlegheny County
My Commission Expires Jan. 28, 2008
Member, Pennsylvania Association of Notaries
IN THE COURT OF COIVm10N PLEAS
OF CUIwBERLAND COUNTY, PEJ\TNSYLV ANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
CAPITOL TUXEDO, INC. )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No. 06-4923
NOTICE UNDER RULE 2958"1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: CAPITOL TUXEDO, INC"
A judgment in the amount of $12,227.09 has been entered against you and in favor of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper allegedly signed by you. The sheriffmay take your money or
other property to pay the judgment at any time after thirty (30) days after the date on which this
notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property
from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE
JUDGMENT AND PRESENT IT TO A nmGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VB A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CA..cN GET LEGAL HELP.
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, P A 17013
Exhibit A
. Complete Items 1, 2, and 3. Also complete
Item 4 if Restricted Delivery Is desired.
I . Print your name aOlt-address on the reverse
so that we can return the card to you. '
. Attach this card to the back of the maJlplece,
or on the front If space pennlts.
1. Article Addressed to:
Chpdol Tw& I~'
$i7lkrll~IL ~&
~1~Sbll~}~
(J 170~D
2. Article Number
(T"ransfer from service label)
PS Form 3811 , Febru8ry 2004
~~ ,
(] Add,... .
C. Date of DeIIYery
-j--d ,
. Is delively address dIffenlnt fronlltem 11 D Ves
If YES. enter delivery address below: 0 No
3. Servjl:e 1YPe
19'6ertmed Mall
D Registered
Dves
7006 0100 0000 b6b3 0670
Oorl'..uc Return ReceIpt 102Sl115-02-M-1540
Exhibit B
~
August~, 2006
ph S. Zubrow
Pa. 1. . No. 43523
Jams F. Rosenberg
. LD. No. 53552
MARCUS & SHAPIRA, LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
Attorneys for Plaintiff, PR Capital City
Limited Partnership
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights was served upon the following by United States mail, first class service,
postage prepaid, this J~ day of September, 2006:
Capital Tuxedo, Inc,
5517 Carlisle Pike
Mechanicsburg, P A 17050
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
CAPITOL TUXEDO, INC. )
)
Defendant. )
)
)
CIVIL DIVISION
No. 06-4923
PRAECIPE FOR WRIT OF EXECUTION
To the Prothonotary:
Kindly issue a Writ of Execution upon a judgment entered by confession in the above
matter.
(1) directed to the Sheriff of Cumberland County, Pennsylvania;
(2) against Capitol Tuxedo, Inc., Defendant, whose last known address is
5517 Carlisle Pike, Mechanicsburg, Pennsylvania 17050; and
(4) against Community Banks, NA, Garnishee, with an address of201 St.
Johns Church Road, Camp Hill, Pennsylvania 17011;
(5) and index this writ against Capitol Tuxedo, Inc., Defendant, as a lis
pendens against the real property of the Defendant;
(6) Amount due: $ 12,227.09
Interest from August 2,2006 at 6%: $ 258.00
Costs:
Writ: $ 15.50
Sheriff: $ 150.00
TOTAL AMOUNT: $ 12,650.59
{AO 1 83770.1 }
~.' ..
CERTIFICATION
I certify that:
a) This praecipe is based upon a judgment entered by confession, and
b) Notice has been served pursuant to Rule No. 2958.1 at least thirty (30) days prior
to the filing of this praecipe as evidenced by an Affidavit of Service filed of
record.
Date: December ~ , 2006
Ste hen S. Zu r (P A I.D. No. 43523)
Ja sF. Rosenberg (PA I.D. No. 53552)
M CDS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
;.r.' ~
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs,
as above, directing attachment against the above-named garnishee for the following property (if
real estate, supply six copies ofthe description; supply four copies oflengthy personalty list)
Anv and all of defendant's bank accounts in the possession of Community Banks. NA. Garnishee
and all other property of the defendant(s) in the possession, custody or control of the said
garnishee(s).
n S. Z row (P A I.D. No. 43523)
sF. senberg (PA I.D. No. 53552)
CDS & SHAPIRA LLP
o Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Date: December~, 2006
Counsel for Plaintiff,
PR Capital City Limited Partnership
a"r",1o
...
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe
for Writ of Execution was served upon the following by United States mail, first class service,
postage prepaid, this ~ day of December, 2006:
Capitol Tuxedo, Inc.
5517 Carlisle Pike
Mechanicsburg, P A 17050
Markian Slobodian, Esquire
801 North Second Street
Harrisburg, PAl 71 07
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 06-4923 Civil
CIVIL ACTION - LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due PR CAPITAL CITY LIMITED PARTNERSHIP,
Plaintiff (s)
From CAPITOL TUXEDO, INC., 5517 CARLISLE PIKE, MECHANICSBURG, P A 17050
(1) You are directed to levy upon the property of the defendant (s)and to sell REAL PROPERTY OF
THE DEFENDANT.
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of COMMUNITY BANKS, NA, 201 ST" JOHNS CHURCH ROAD, CAMP HILL, P A 17011
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $12,227.09
Interest FROM 8/2/06 AT 6% - $258"00
Atty's Comm %
Atty Paid $37"50
Plaintiff Paid
L.L. $.50
Due Prothy $1.00
Other Costs
Date: DECEMBER 13, 2006
(Seal)
~~
CurtV'R. Long, P notary
By:
Deputy
REQUESTING PARTY:
Name JAMES F" ROSENBERG, ESQUIRE
Address: MARCUS & SHAPIRA LLP
ONE OXFORD CENTRE, 35TH FLOOR
301 GRANT STREET
PITTSBURGH, PA 15219
Attorney for: PLAINTIFF
Telephone: 412-471-3490
Supreme Court ID No. 53552