HomeMy WebLinkAbout06-5080
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff,
CIVIL DIVISION
No. t:J.- -$tjJ)O e;(.>i.t..T€IL~
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER t/a A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the Warrant of Attorney, the original or a copy of
which is attached to the Complaint filed in this action, I appear for the Defendants and confess
judgment in favor of Plaintiff and against Defendants for money as follows:
Amount due from 10/1/05 through 8/1106 (Ex. 2)
$ 38,638.85
Attorneys' fees for enforcement and collection (5%)
provided under ~16.02 ofthe Lease
$ 1,931.94
Filing Fee
$
19.50
TOTAL
$ 40,590.29
Dated: AUgust'U5, 2006
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Attorney for Defendants
Sponseller tla A Different Pretzel Twist
UNSWORN VERIFICATION UNDER 18 PA. C.S. IS 4904
The undersigned hereby states subject to the penalties of 18 Pao CoSo S 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 CAPITAL ITY LIMITED PARTNERSHIP
Dated: 1\)0* VS ,2006
By:
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff,
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER t/a A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
CNIL DIVISION
No. 0(.. -SDfD {Ju~tT€tL."l.
COMPLAINT IN CONFESSION OF
JUDGMENT FOR MONEY
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa. J.D. No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER tla A DIFFERENT TWIST
PRETZEL CO.,
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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CIVIL DIVISION
Plaintiff,
No.
v.
Defendants.
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
1. Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited
partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner ofthe Capital City
Mall in Camp Hill, Pennsylvania.
2. Defendants Douglas N. Sponseller and Linda M. Sponseller are adult individuals
tla A Different Twist Pretzel Co. Defendants' last known address is 226 East Elm Street,
Hanover, PA 17331.
3. The original instrument evidencing the obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defendants which
is a true and correct reproduction of the original, is attached hereto and marked as Exhibit 1,
and is incorporated herein by reference. The instrument is a Lease dated March 21, 2005 (the
"Lease"). Defendants are the Tenant under the Lease, and as noted above, Plaintiff is the
Landlord under the Lease. This confession for money judgment is warranted by Section 16.02
(b) of the Lease.
4. Plaintiff avers that judgment on the Lease is not being entered by confession
against a natural person in connection with a consumer credit transaction. The underlying Lease
of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial
transaction.
5. Judgment has not been entered on the Lease in this or any other jurisdiction.
6. Section 16.01(a) ofthe Lease provides that the following shall be deemed an
"Event of Default": "the failure by the Tenant to pay Minimum Rent and/or Percentage Rent
and/or Additional Rent or any installment or year-end adjustment thereof if such failure
continues for ten (10) days after written notice thereof by Landlord to Tenant."
7. Plaintiff avers that Section 16.02 (b) of the Lease authorizes the entry of
Judgment for money after an Event of Default thereon. An Event of Default has occurred under
the Lease in that Defendants failed to make payment of rent and other charges which were due
from approximately October of2005 forward. Plaintiff gave written notice of the failure to pay
on, among other dates, April 21, 2006, and August 10, 2006, and more than ten days have passed
after Defendants were sent notice of its failure to pay without making the missing payments.
Further, Defendants vacated the premises on April 17, 2006 in violation of Section I 6.01 (c) of
the Lease.
8. The itemization of the amount presently due under the Lease and without waiver
of future damages is as follows:
Amount due from 10/1/05 through 8/1/06 (Ex. 2)
$ 38,638.85
Attorneys' fees for enforcement and collection (5%)
provided under ~ 16.02 ofthe Lease
$ 1,931.94
Filing Fee
$ 19.50
TOTAL
$ 40,590.29
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendants in the total sum of $40,590.29 plus costs,
attorneys' fees and interest at the Lease rate from and after the date of the Entry of Judgment as
provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: August 1J;, 2006
~1; -
Stephen S. Zubrow ~
Moira Cain-Mannix
MARCUS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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CIVIL DIVISION
Plaintiff,
No. 01.- -
eiC;~1
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER t/a A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY
TO: DOUGLAS N. SPONSELLER and LINDA M. SPONSELLER t/a A DIFFERENT
TWIST PRETZEL CO.
Please take notice that a judgment for money in the amount of $ 40,590.29 has been
entered against you by confession on the date below in favor of the Plaintiff.
Date:-Pu ~
.10. :Jd:>b
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IJ
C)
SCANNED
I -a -C)3-t:JS I
LEASE AGREEMENT "
BY AND BETWEEN
PR CAPITAL CITY UNITED PARTNERSHIP. ..1.MdIonI
.nd
DOUGLAS N. AND UNDA M. SPONllELLER. HusII8nd IIncI W1f8, .. T....nt
TRADE NAME: A IlIFfERJ!NT ~ PRETZEL CO.
EXHIBIT 1
AOIII8nlnlTwiotPl8I28ICo..QIpitIIIClty-Fln.1
March 4. 2005 \ VonoanlIJTf
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FUNDAMENTAl. lEASE PROVISIONS'~'
This lease isexecuted and mad..s of ~ ,tt; , 2005, by and _ PR CAPITAl. CITY UMITED
PARTNERSHIP, I Psnnsylvlnll IImllld psrtnll'lhlp (herein called 'L.sncIIonI") and DOUGLAS N. AND llNDA M.
SPONSELLER, Husblllnd and WWe, jointly and severally, (he1eln called 'T_'), Landlord and Tenant having the
following notice add_s..:
Lsndlord:
PR CAPITAL CITY LIMITED PARTNERSHIP
cia PREIT ServIces, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
AtIn: General Counsel
Ten.nt:
Douglas and Unda Sponaeller
c/o A Olffenml Twlal_ Co.
226 East Elm Street
Hanover, PA 17331
Copy to:
PR CAPITAl. CITY LIMITED PARTNERSHIP
~0flIce
3506 Capltal ClIy Mall DrIve
Camp Hili, PA 17011
AtIn: Generll Ma_
Copy 10:
Certain Fundamental L.... ProvIsions are presented In this SectIon and represent the agreement of the parties hereto,
subject to definition and elaboration In the _pectIve referenced SectIons and eIoewhere In this L....:
(a)
(b)
Tononr. TI'lldI N"",":
A Dlflerent Twist Pretzel Co.
(See Sec. 7.01)
Ronl Tlnn: One Hundred Twenty (120) months commencing on the Rent Commencement Date. The Rent
Term expires on the last day of the One Hundred Twentieth (120"') month follaMng the Rent Comme_ment
Date (the "I!xpI1'IIIon Date'). (See Sec. 3.01)
(e)
(d)
(e)
(I)
Tonomt Store Numbsr:
GLA of P......_:
218-8
(See Exh. A)
(See Sec. 1,04)
(See Sec. 2.03)
(See Sec. 2.03)
(See Sec. 2,03)
595 square feel
llsIlgn Dl'lWlngs Submlallon D...: May I, 2005
Tonlnl'l .Constructlon Comman_ 0....:
& .Constructlon PsrIocI": Sixty (60) days
(g) Minimum Rent:
TI__
Rent Commen<:ement Date
through the 38" month
From the 37'" month
through the 84~ month
From the 85'" month
through the and of the Term
(h) Psn:en,- Rent:
(I)
0)
(k)
n__
Rent Commencement Date
through the 38" month
From the 37'" month
through the 84~ month
From the 8511I month
through the and of the Term
Rsqulred OpenIng Dot.:
Securlty DIpoIIt:
NlA
July 1, 2005 -'
Annual Amount
IIonthIv Amount
$41,650,00
$3,470.83
$44,825,00
$3,718.75
$47,600.00
$3,966.87
(See Sec. 4.03)
B....k Point
TM "PwI\-,............
$894,166.87
SIx Percent (6%)
$743,750.00
Six Percent (6%)
$793,333.33
September " 2005
Six Percent (6%)
(See Sec. 4.04)
(See Sec. 4.02)
(See Sec. 2.02)
(See Sec. 9.01)
(See Sec. 9.02)
MlII1clllng ServtcI C...rge: $3.00 per square foot of the GLA of the Premiss. per Year
Minimum __Inll Ch_: NlA
AOIIIeIllf1lTwlSlPretzeteo.-capttalClly-FInaI
M.rch 4, 2005 \ VanssnUJT1'
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'~tlNDAIIENTAI. LEASE PROVISIONS (CON-rD)
(I) ~n Other Ctmv- Payable by Tenant:
TaCh_
SerIIcM Ch_
R_ _ling Charge
CAlI C~
S_""_mant
(m) "Agent" ""d To Whom R.... PII)'abltl:
PR Capital City Associates LP
P,O. Box 844052
PITTSBURGH, PA 15264-4052
(n) u..: The .. at retail of hand-~ _ dough soft pteIzeIs, which ftaYOl'llIl1ll)' Include original, cinnamon
...gar, almond crunch and gertlc pIIl'1l1_n, TenIIflt mil)' 11IIo oeIl_ producla utlIlzIng the_ pteIzeI dough,
Including mini pizzas, hem and a- In _ pteIzeI dough, _ ...- dough _ .1uII8d with tuna and
chlci<en _, hot dogs ~ In _ ,..- dough, WId loa cnMI ..-...d In _ ...- dough wraps.
IncldentallhoretD, TIII18I1I mil)' 11IIo sail at ralIIIl, _, julola WId soft drInka. ~.. the flngoIng,
TenIIflt henoby _ th8l the _ 01 mini pizzas WId loa ..-. ..-...d In _ ,..- dough wraps, In the
_egate, .hall not exoeecl ten pan:anl (10%) ofTenanf. Graoa s-. per V_.
(s.... sec, 5.01)
(See sec, 6.02)
(See sec. 6.04)
(See sec. 8.03)
(See sec. 9.01)
(See sec. 7.01)
ADtfIenlnITwtstProtzeICo.-<;apItaICI\y-FInaI
Mard14, 2005 \ VansantlJTF
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Ict..
'Ic~
LEASE AGREEMENT
ARTICLE 1: INTRODUCTORY PROVISIONS
SecIIon 1.01: REFERENCES AND CONFLICTS.
References appearing In the Fundamental Leeoe Provllions .... to designate some of the other places In this
Leese where additional provIlionl appl_ to the particular Fundamental Leeoe ProvIslonl e_. Each reference In
this Lll8se to any of the Fundamental Lll8se Provlsionl shall be construed to IncorpoI'8te all of the terms provided for
under such provisions, and luch provision lhall be read In conjunction with all other provlsionl of this L.... applicable
thereto. ~ there II any conftlcl _ any of the Fundamental Lee.. ProvIoIonl and any other provIoIons of this Lea..,
the latter Ihall control. The IIs~ng on the Fundamental Leeoe ProvIsions of mOMmry chargeo payable by Tenant shall not
be construed to be an exhaultlve list of all Chargel or the amount thereof payable by Tenant under this Lee...
SectIon 1.02: GENERAL DEFlNmONS.
(a) The term .Shopplng Canlef" meanl the land shown on Exhlblt "A" ettachad h....to and by this
reference Incorporated herein, as the same may hareafter be reduced, expanded or olherwiae altared from ~ma to time.
(b) The term "Mall Prem_" meensthe Shopping Center excluding however the Majors' Premises and the
term "Mall Preml..." Includes the S8me as reduced, expanded or otherwt8e altered from time to time.
(0) The term "Landlonl'o Building" meens the buildings, structures and other Improvemento shown In
general on Exhlblt "A" and Includos the "Encl_ Mall" (hereinafter deIInod), but excludes the Majors' Premises
(hereinafter defined). Landlord's Building Is part of tho Moll Preml.... The tann "Landlord.o Building" Includeo the same
as reduced. expanded or otherwise attered from time to time.
(d) The term "M......' Praml_" (or"Mojcn Pram_Oj meenlthe premls.. shown on ExIIlbll"A", page 1
by such term, or by the word "Major" or name of the prospective or actual principal occupant thereof (the "Mojcn" or a
'Major"), and the term "Majo..' Preml_" (or "M...... Prem_.) IncIud.. the same as reduced, oxpanded or otherwise
allered from time to ~me. Tha tann "Major" (or "Majo..") Includ.. any replacement for or other subs_ of the primery
occupant of a Majors Premises as well as, In the case of an expansion of the Shopping Center, the primary occupant of
the preml..s equal to or exceeding, In terms of GLA, the GLA of anyone (1) of the Majcn' Premises ohown on Exhlblt
"A" (even though those premises may not be originally shown thereon), References In this Leese to a Major or Majors
shall Include any IUch replacement, substitute or eddltlonal Major and Its premises are Included within the tanns .Majo..'
Praml_' and "Major'a Prem_",
(e) The term "Common _" mll8ns all areas, facilities and Improvements operated or provided at or In
connection with the Shopping Center from ~me to ~ma for the non-exclustve common u.. of Landlord, the tenanto of the
Mall Preml... and the Majors, and Ihalllncluda but not be limited to the "E_ Mall" (hereinafter defined), parking
areal, roadwaya, rempa, trafIJc contrOls, truck wayo, loading and unloading docks, delivery areas, s_ks, llalrways,
escalators and elevators (~ any), s"",toe corridors, exil conidora, _ng areu, buffer areas, saeenlng faclllllel,
merchandl.. pickup olations (excluding thooe of Majors, ~ any), public rest roomo and comfort Statlonl, retaining walls,
landscaped araao, open opace areas, utHlty oyotems, sanitary and other waote handling oyotems, holding lanks, force
mains. fire detectton and/or suppression sy&tems, life safety systems, security systems, community rooms, drainage
systems, and lighting systems. The term "Common ~. Includes the same as reduced, expanded or otherwise ahered
from time to time.
(I) The term "Encl_ Mall" means the enclosed climate controlled ped..trIan mall locatad in Landiord's
Building, and the term "En_ Mall"lncludeo the sama as reduced, expanded or olherwIae a_ from time to ~me.
(g) The term "Praml_" meens the space cIemlsad by this Lease and situated In Landlord'. Building which
space Is In the approximate location marked on Exhlbll "A", however, the Premises Is limited _11y to the ceiling
height above the otructuraJ floor set forth in Landiord's .Storellelllgn CrIIerIa" (defined In Section 2.03(b) hereof). In the
event the Premises Is a comer location, the Premises shall exclude any rights with respect to the exterior side wall of the
Premises.
(h) The term "Faot Food Cluate<" means the area or areas now or In the future specifically d..lgnated by
Landlord for small reateurant or other food servtoe operations situated In Landlord's Building or a1sawhere In the Mall
Praml..s, Including the Individual premls.. and any _ng areas Iocatad therein and the maintenance and housekeeplng
arees primarily serving the Fast Food Cluster. The term "Fast Food Cluster" Includes the same eo reduced, expanded or
otherw;se altered from time to time.
(I) The term "GLA" means with respect to the Preml... and all other leasable araao, Landlord's best
estimate of the number of square feet of area on all ftoors In Landlord's Building for the excluotve u.. by the tenants or
other occupants thereof and thalr customers, cilento or other Inv_ Including without limitation mezzanines and
balconl.. ~ usad for the sale of goode and/or ..rvlcoo (but excluding all other areu and opace defined herein as part of
Common Areas). GLA of the Premises shall be measured from the exterior face of __ walls and the exterior face of
s"",lce corridor wallo, the llna along the front of the Premises where the Prem_ abuts the EncIceed Mall es s'-n on
Exhibit A (which line Is commonly known as the "LeMe Una.), or the Leeoe Llna of any pojH>U\s referTed to In Section
1.04, as the case may be, and the center line of any wall Tenant sharas with other lenanto or occupanto of the Landlord's
Building or a Majors' Premises. With respect to all __ areas other then the Prem_, GLA shall be determined by
virtue of the definition contained In the lea.. In quootion. No deduction from GLA lhall be made for columns, slalrs,
elevators, or any Interior conotructlon or squlpment. From ~me to time during the Tann, Landiord may give Tenant notice
of the GLA of Landlord'. Building, at a given ~mo for a given perlocl of ~me, as such GLA may be revised because of
reductions, expansions or other aIteratlons of Landlord's Building or as IUCh GLA may be edJusted pursuant to provisions
In the lees.. of other lenanto or occupants. The GLA of the Prem_ and 01 Landlord'. Building Ihall be utHlzed to
calculate the GLA Fraction (defined In Section 1,020) and to make any other calculations required to detannlne the
AOllleranlTwlBtPratzalCo.-copitalClty-Flnsl
March 4, 2005 \ Vanll8nl/JTF 4
requirements _n (_ caIIeo 'Store Deelgn Crl\erhl"), a copy of which; enant acknoWledges n has received.
Tenant .hall instruct its archlt8cl or designer to prepare Tenanr. plan. for the Premises In compliance with the Amarlcan.
with Disabilities Act. the Clean AIr Act and all other 8pllIlcebIe laWs, rules, codes, and regulation.. In the aven\ of any
Incon.l.tenol8s _n the text of this L.... Ind the Store Design CrI\eria, the latter ,h8l1 prevail. EntJy by Tenant to tha
Premisas prior to the RanI Commencement Date shall be subject to ell at the provlllons at thll L..... except the duty to
pay Rent but Tenant ,hall pay for all utllltles and s_s supplied to n during such period. Tenant agreetI to perform
Tenant's WO<k In accordance with the provlllons of this Lassa and .uch manner 10 as not to causa any Intarference with
the use, occupancy or enjoyment of the remainder of the Shopping Canter. or any part _. Tenant .hall promptly
cau.e to be repaired all llam. which may have been damagec:l as a rasun of the performance at Tenant's WO<k promptly
upon the occurrence of such damage and shall at all times keep all portions at the ShoppIng Center (other than the
Premlses)f_ from and unobstructed by debris, equlpmant or materials related to Tenant's WO<k.
(c) On or before the Design llnlwIng Submission Date, Tanantshall .ubmn to Landlord's tanant coordinator
(herein called the or....... Coordinator") for the Landlord's approval design drawings (herein called the -o.llIn
DrBwInga") spec;lfylng each' aspeel of Tenant's WO<k and speclf\cally Including a colored render1ng at the proposed
.torefront and .Ignlng, sample matartal. to be used In the Premisas and .Ign, photograph of flxturas to be used and the
Interior layout of the Premlsas. Tha DesIgn llnlwIngs shall be prepored In acc:oRlance with \he Store Design CrilariII,
After racalpt at the Design Drawings, Landlord .hall retum to the Tenant the DesIgn llnlwIngs, either "approved",
"approved as nolad" or "disapproved"; II they are marked "disapproved., Landlord .holl allO note the rea.ons of .uch
dl.approval. On or befora thirty (30) days after receipt at the "disapproved" Design Drawings. Tanant.hall rasubmn to the
Tenant Coordinator revtsed Design llnlwIngs maetlng Landlord'. objection.. Landlord .hall thereaftar retum the sama to
Tenant, marked as.at forth above and Tenant .hall within an eddl\lonal thirty (30) day period rasubmn revt,ed drawings
until the sama hlva been "approved a. noted' or .approvad", On or before thirty (30) days after racalpt of.approved a.
nolad" or "approved" Design llnlwIngs Tenant .haIl .ubmn to the Tenant CoordInator for Landlord'. Ipprova\, wor1<lng
drawings and .peclflcatiOn. (herein called "fInal Plano") for archl\edurei, _c:al, mechlnlcal, .prlnkler and plumbing
wor1< within the Preml... and all other Tanant WO<k propooed by Tenant and shown on the Design Drawings and required
by the Store Design CriterIa. The Final Plan. .hall be prepared In accordance with the Design Drawings as marked
"approved as noted" or "approved. by Landlord. The Final Plan. ohalllncorporote any revtslon, required by Landlord to
the Design Drawings, including thooa forming the ballll of Landlord'. approving the same .a. noted". Alter receipt at the
Final Plan., Landlord .hall ratum to Tenant the Final Plan., marked either .epprovad", "approved as noted" or
"dl.approvad". If they are marked 'dlsapproved". Landlord .haIl_ the reaoons for .uch disapproval and Tenant .haIl,
on or before tan (10) days after racalpt at such "disapproved. Final Plan., correct eny daflcienol8s .tated by Landlord and
re.ubmn within ten (10) days c:orT8CIad Final Plan. to Landlord until .ame are ecceptad a. "approved a. noted" or
'approved", n Landlord ac<:apts Tenant'. Final Plans "approved as noted". Tenant need not re.ubmn the .ame to
Landlord's Tenant Coordinator, but Tenant .hall revile .uch Final Plan. to Incorporate Landlord'. required changes and
Tenant covenants that the Tenant Work In the Pramlsas .haIl be c:onatructed In .uch _ as to comply with the notes
disclosed on .uch "approved sa noted" Flnel Plan.. n Tenant does not correct .uch deIIcIenc:y and resubmn any
disapproved Final Plans within the required time period, such failure .hall constitute an Event of Defoui\, Tenant'. Work
.hall be performed only In accordance with the Final Plan., a. marked "approved as noted" or "approved" by Landlord.
Tenant'. failure to .ubmn its Design Drawings on or before the Design llnlwIngs Submission Date or Tenant'. failure to
commenca Tenant'. WO<k on or before the Con.tructlon Commencement Date .hall be an Event at Oafaun pursuant to
Section 16,01 unless such failure resuits from Landlord'. Inability to deliver poo....lon at the Premisa. to Tenant on the
Construction Commencement Date,
(d) Togath8r with Tanant'. subml..lon at Its Design llnlwIngs and together with any other plans .ubmltted by
Tenant reIaIIng to any other wor1< In the Praml... which Tenant d..1res or Is required to perform, Tanant .hall pay Agent
on each occa.lon the sum at One Thou.and and 00/100 Dollars ($1,000.00) to defray the cost at revtewtng Tenant'.
Design Drawings and Final Plan.,
(e) On or before the ConsltUC\lon Commencement Data, Tenant.hall deposn with Landlord cartlflcates of
Insurance as required In ArtIcle 11 and the Store Design Crilarta, a. well as a trua copy at Tenant'. building permn and
Tenant.hall commence Tenanr. WO<k and prosacute n dlllgenUy and continuously to completion Including In.tallatlon at
fixtures and equipment In the Premisas. PrIor to the commencement at any Tenant WO<k or the delivery at any material to
the Premises by any contrac:tor, .ubc:ontrac:tor or materl8lman (heraln called ~), Tenont .haIl delivar to the
Tenant CoordInator a .Igned, _gad and sealed waiver at liens (herein called "Contractors Waiver at Llan.") from
aach Contrac:tor In the form .pecIfIed by Landlord. The Contractor'. Waivar of LIen. provides, among other things, that
the Con_ waives any and all lien rights that n may have against Landlo<<l'. _, right, \IlIe and Interest In the
Shopping Center and any part _ Including, without IImlta1lon, Landlord'. BuAdlng and the Moll Preml.... Within thirty
(30) days after Tenant'. opening the Pramlsas for bu.lnes., Tenant .hall deliver to Landlord an exocutad Completion
Cartlflcate In the form attached hereto as Exhlb~ .C.,
(I) Landlord shall have the right to pool and keep poolad In the Prem_ notleas of non-rospon.lblilty, or
.uch othar noticas as Landlord may deam to be proper for the ptO\eC\lon at the Landlord or Landlord'. ..tate, right, titie
and Interast In the Shopping Canter and any part _. Tenant sholl before the comm_t of eny wor1< which
might re.ult In any claim, lien or other charge giva to the Landlord wrtttan notlca at its IntantIon to commenca said wor1< In
sufflclant time to enable Landlord to poot, file a.nd raoon:I .uch notices, The provision. at this Section 2.03 .hall apply with
re.peeI to T enanh WO<k or eny other work performed In or about the Premi_ at any time during the Term hereof.
5_on 2.04: OPENING OF PREMISES.
(a) Tanant agreetI to open its bu.'ness to the public In the Preml.e. no later than the Required Opening Date
specified in the Fundamental Lease Provlskms.
(b) Tenant .hall complate, or cause to be complatad, Tenanh WO<k and the In.tallatlon of fixtures,
equlpmenland merchandisa no later than the Required Opening Data. n Tanant fall. to open Ila bu.'nes. to the public In
the Preml... on or before the Required Opening Date, Tenant.haIl pay to Landlord, In addition to MInlmum Rent and
Additional Rent, an amount equal to one percant (1%) at the annual Minimum Rent for each day Tenant's bu.,ness
remain. not open In the Premlsas from and after the Required Opening Date (counting the said Required Opening Date as
the first .uch day). AIry and all .um. and other charge. payable by Tenant to Landlord pursuent to the Immediately
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preceding aentence shall be paid on """,.nd to _ administrative coati and exile.... Incurred by Landlord .s . result
of Tenanfslllle opening .nd shall In no way .b1ogete, or rellev. Tanant from any of T.nanfs obligations under this L....,
Including without limitation the obligation to open Ito business In the Premises, and Landlord shall have all _ rights .nd
remadles under this Laaae, at law .nd In aqulty, .rlslng from T.nant's failure to open pursu.nt to this SeelIon 2,04(b),
Section 2.05: MECHANIC'S LIENS.
(a) Tanant will not perron to be created or to rem.ln undischarged .ny li.n, ancumbrence or other charge
arising out of .ny ~ done or meterlals or supplies furnished by any contrector, sut>cc>.-, mech.nlc, 1._ or
m.terI.lm.n or .ny m~, condlttonal sale, security agreement or chattaI m~ which might be or become a lien
or encumbrence or _ charge (coIlecttve1y a "Charge') against or upon the Shopping Center or any part thereof,
including without limitation the Mall Premises and Landlord's Building or the Income therefrom. Tenant will not suffer any
other matter or thing whereby the estate. rlght, title and Interest of Landlord In the Shopping Canter or any pert thereof
Including without limitation the Mall Premlaea and Landlord's Building might be Impaired. If any cl.lm or lien or notice of
claim or lien on account of an' alleged debt of Tenant or any notice of contract or Charge by a person engaged by Tenant
or Tenant's contrector to "",Ii< on the Premises shall be filed against or upon the Shopping Center or any part thereof
Including without limitation, the Landlord's Building or the Mall Premlaea, Tenant shall within twenty (20) days after demand
from Landlord, cause the same to be dlsch8fll8d of record by paym.nt, depoan. bond, order of a court of competent
jurisdiction or otherwise. W Tenant shall fall to cause such cl.lm or lien or notice of claim or lien or _ Charge to be
dlschargad within the period aforesaid, then, In .ddWon to any _ rlght or remady n m.y have, Landlord may, but shall
not be obligated to, discharge the seme by payment, depoan or by bonding p<oceedlnga, .nd In .ny such event L.ndlord
sh.1I be entWad, W Landlord so elects, to compel the prosecution of en action for the foreclosure of the same by the
cl.lm.nt .nd to pay the .mount of .ny Judgment In favor of the cl.lm.nt with 1_, coati .nd .lIowancaa, Any amount
so paid by Landlord .nd all Intereet, coata and expenaM, Including attorneys' _. Incurred by Landlord In connection
therewith, shall constitute Additional Rent p.yable by Tenant under this LNae and shall be paid by Tenant to Landlord on
demand, Nothing herein contalnad shall obligate Ten.nt to pay or discharge any Charge aeated by Landlord.
(b) Tenant shall pay promptly all panlons furnlshlng labor or materiels with respect to any work by Tenant or
Ten.nrs contrector In or about the Premlaea. No "",Ii< which Landlord perrolto Tanant to do shall be deemed to be for the
immedlllle use and benefit of Landlord so thet no machanlea' or _ cl.lm, lien or _ Charge shall be allowed against
the estate, rlght, tWe or interest of Landlord by reeaon of eny consent given by Landlord to Tenant to do ~ In or .bout
tha Premises or provide materials therefor. Nothing contelned herein shall Imply any consent or agreement on the part of
Landlord to subject Landlord's estate to liability under eny meehanlea' or other lien law.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS LEASE.
The term of this Lease (sometimes herein callad tha "Term") means tha period of the 1nterlm Term" (hereafter
daftned) followed Immediately by the period of the .R""I Tenn" (hereinafter defined). The 1ntar1m Term" means tha
period commencing on the date of this Laaae and ending on the dele Immediately preceding the Rent Commencement
Ollie. Tha .Rant Term" means the period commencing on the Rent Commencement Dele and ending on the Expiration
Date, .s extended PlJIlIusnt to SectIon 21.02 _ or by agreement executed by Landlord and Tanant or sooner
terminated as provlded herein. as the case may be. Ourlng the Interim Term, W Tenant Is not open for buslneas in the
Preml.... all of the provtalons of this Lease shall apply except that Tenant's obligation to pay Rent shall abate, other then
for utilities and trash charges.
Section 3.02: YEARS.
The term -V..r" means each IUcceaslve lweIve (12) month period from January 1 through December 31
occurring durlng the Term, plus. W .pplleable any Partial y_. ......... y_ means the period _n and Including the
Rent Commencement Ollie. W th.t dele Is not January 1, .nd the next IUccaedlng December 31 and, W applicable, W the
Term ends on _ then e December 31, \he period beginning on the lasl J.nuary 1 of the Term .nd ending on tha last
day of the Term.
ARTICLE 4: RENT
Section 4.01: TENANT'S AGREEMENT TO PAY RENT.
Tenant hereby _ to pay for the right of us. and occupancy of the Premlaea durlng the Relit Term, at tha
times and In the manner herein provlded. the Minimum Rent, peocentage Rant and Addltlonal Rent. As usad In this Lease,
the term "Rant" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent.
Section 4.02: RENT COMMENCEMENT DATE.
As usad In this Lease, the term "R""I Commancam""l Data" shall mean \he earlier of:
(a)
Date"); or
the dllle on which Tenant InlUalty opens Its business to the public in the Premlaea (the .Actual Opening
(b)
the calendar dllle set forth .s the Raqulred Opening Ollie In the Fundamental Lease Provisions.
Section 4.03: MINIMUM RENT.
(a) The base rent Ten.nl sh.11 pay Landlord for each V_ sh.1I be the emount set forth In the Fundamental
Lease PrcMSton& 8S the Minimum Rent per Year and shall be payable In twelve (12) equat monthly Installments. In
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ad""""", on the lIrat day of each cai6ndar month,
(b) The base rent Tenent sh8ll pay Landlord for """ PerttaI Vear shall be that amount set 10rll1 In tha
Fundamental Lease Provisions as the Minimum Rent per Vear tIm... the PerttaI Vear Fraction. As used In this Lease,
"Partial V_ Fraction. mea". afracllon, the numerator 01 whlcl1ls the number 01 days In the 8PllUcable Partial Vear, and
the denominator 01 whld1ls three hundred slxtyo-llve (385), The bese rent payable lor a Partial Vear shall be paid In equal
monthly I".tallmenla, In advance, on the flret day of each calendar month, except that W the Rent Commencement Date Is
not the lIrat day of a _ month, then that portion 01 such _ rent whld1ls attributable to the days In that flret partial
calendar month shall be paid, In advIInca, on tha Rent Commencement Date,
(c) The base rent payable by Tenant pursuant to Section 4,03(a) or (b), whIChever Is applicable, Is callad the
"Minimum Rent" In this Leae, Minimum Rent shail be prorated for partial months, Wany. K the Minimum Rentincfeaaea
during the Rent Term, for the purpose 01 detennlnlng the date on whlcl1 Minimum Rent Increaae(s) become effective. a
partial month shall be dlsf8lll!'dad.
(d) K, at any time during the Tenn the Shopping Center shail be expanded by the addlllon 01 one or more
Majora' Preml... or the Shopping Center Is expanded by more than 50.000 square _ of GLA. Tenant agrees that the
Minimum Rent provided In the Fundamental L.... Provlalons shall be _ by _ percent (15%) upon the data
each such addlllonal Majora' Preml... firet opens for business or the opening 01 the expanded Shopping Center, Landlord
agrees that the Break Point shall be likewise Increased bylJfteen percent (15%).
Section 4.04: PERCENTAGE RENT.
(a) In addl\lon to Minimum Rent, Tenant shall pay l.andIonl percentage rent (herein called "P_boge
Rent") as determined by this ArtIcle 4. The Percentage Rent for each Vear shall be an amount equal to the .,..-.toge"
(which is set lorth In the Fundamental L...... ProvIaIons) multiplied by the amount 01 Gross sa... made during such Vear
in excess 01 the applicable Break Point set forth in the Fundamental Leae ProvIsions. The Pen:entage Rent lor each
Partial Vear shall be an amount equal to the Percentage mulllplled by the amount 01 Gross sa... made during such Partfal
Vear In excess 01 the PartfaI Vear Break Point. The term "Portia! V_1Iruk Point" shall mean en amount equal to the
Break Point multiplied by the Partial Vear Fraction lor the applicable Partla' Vear and the Break Point and Partial Vear
Break Point are collectively referred to 1M the .8_ Point.,
(b) In each Vear or Partial Vear. Tenant shall be obligated to pay Percentage Rent beginning With tha lIrat
month in 'Nhlch the aggregate amount of Gross sales made tor suah Veer or Partial Year exceeds the Break Point.
Tenant shall pay Percentage Rent (In oddlllon to Minimum Rent and Addl\lonal Rent) for each and 8VfIfY succeeding
month during tha remalnder 01 such Veil or ParlIaI Vear on all eddlllonal Gross SaI.... Each payment 01 Percentage Rent
shall be paid by Tenant to Landlord without demand and _se as sat forth In this ArtIcle 4 together With Tenanrs
monthly statement 01 Gross Sales provided lor In SectIon 4.06, subject to the annual adjustment provkled lor In such
SectIon 4.06.
(c) In the event any BreaI< Point Is subject to adjustment during the term 01 this Leae. and the date on whlcl1
any such edJustment Is to occur (hereafter reIerTed to 1M the .R_ AdJ- Date") Is other than the first day of a
Vear. the Break Point lor the Vear In which the Rental Adjustment Date shalllall shall be the sum 01: (1) the Inlllal Break
Point mulllplled by a lractIon the numerator 01 whlcl1 shall be the number 01 days In the period commanclng on the flret day
01 the Vear In which the Rental Adjustment Date sh8ll fall and ending on the day Immedlalaly pr'ror to the Rental
Adjustment Date and the denominator 01 whlcl1 shall be three hundred slxtyo-llve (385). plus (2) the latter Break Point
multiplied by a Iracllon. the numerator 01 which shall be the number 01 days In the period commencing on the Rental
Adjuatment Date and ending on the last day of the Vear In whlcl1 the Rental Adjustment Date shelllall and the denominator
01 which shall ba three hundred slxty-flve (385).
Section 4.05: GROSS SALES.
(a) Tha term "6..... ...... mea". the totallll'08S receipts and _ 01 all merchandise, wares and
other goods sold or Iaa8ed and the actue' "'- lor all servlcas performed, bus_ cond_ and accommodattons
rendered by Tenant and by any subtenant, 11canHe, concessionaire and _ occupant In, at.1I'om, 01' arising oul 01 the
use 01 tha Praml..., whether _ or """", _lor cash or credit, or otherwise, end inclUding the valua of all
considerellon _ than money -.d for any of the loregolng, without reserve or deduction lor Inability 01' laHure to
collect, including but not IimHed to sales. I..... and servtces:
(I) whale the orders therefor originate In, a~ II'om or arising oul 01 the use 01 the Preml.... whether
delivery 01' performance Is made from the Premises or from some _ place and regardless of the pIaca 01 bookkeeping
for, payment of, or cohctton of any account; or
(II) mede or performed by mall, telephone, Internet, webeHe 01' slmHar mea". and ordere received or
filled or delivered In. at or II'om the PremI8es; or
(III) mede or performed by means 01 talephonlc. mechanical or other vending means or devices In or
for the Premises; or
(Iv) whld1 Tenant, and any subtenant, lleansee, concesslonalre and other occupant. In the normal and
customary course 01 Ita business, would or does credH or attribute to Ita operations at the Preml... or any part thereof.
Any deposH accapted and retained by Tenant shall be Included In Gross Sales. Each Installment or credH sale
shall be b'eated as a sele lor the lull prtce In the month during which such sale Is made, IrrespeclNe 01 whether or when
Tenant receives payment therefor. No franchise, value edded tax. capital stock tax, tax ba8edupon _ or net worth or
gross receipt tax, and no Income or similar tax baaed on Inc:ome or proflta shall be deducted from Gross Sales.
(b) Only the following ,hall be excluded II'om Gross Sal...:
(I) any exchange 01 merchandise between stores 01 Tenant when such exchange Is made solely for
the convenient operation of Tenants business and Is not for the purpose of consummating 8 s. made In, at or from the
Premises;
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March 4, 2005 \ VsnsantlJTF
8
(il) relUma to s"Il\lIIe"" shippers or manufac:lurers; .
(III) caah or credll rafundsto CUltom... on lnI_n otherwise Included In Gross Sales;
(Iv) saI.. of fixtures, mochlnery and equipment, which are not stock for sale or trede, after use thereof
In the conduct of Tenanfl business;
(v) emounts separately stated In the saI.. receipt end collected from custome", which are pald by
Tenant to any govemment for any seles or exelse tax Imposed by law at the point of sale,
_on 4.08: REPORTING OF GROSS SALES: YEAR END ADJUSTMENT.
(a) Tenant shall fumlsh to Landlord within twenty (20) days after the end of each calendar month durtng the
Term a complete statement (the "Monthly Report"), certtfIed by Tenant (or a responsible financial ofIIcer _ W Tenant
Is a corporatton), setting forth (I) the amount of Gross Sales durtng such month, (II) the awegate amount of Gross Sales
durtng such Year (or Parttal Year, as the case may be), Including such monlh, (III) the amount, Wany, by whlcl1 such
aggregate amount of Gross Sal.. exceeds the Breal< Point, and (Iv) the amount of Percentage Rent previously paid by
Tenant to Landlord for such Vear (or Partial Year, as the case may be). The Monthly Report shall be In such form and
styte and contain such details and breakdown as Landlord may reasonably require.
(b) Tenant will also furnish to Landlord within sixty (eo) days after the end of each Vear e complete statement
(the "Yuriy R_rt") certtfIed by tha cI1lef financial ofIIcer of Tanant, showtng In _ _II the amount of Gross
Seles during such Vear and the amount paid to Landlord pulSuant to SectIon 4.04(b) for luch Vear, The Vearly Report
shall be accompanied by the signed opinion of the peroon carttfylng the VaarIy Report spaciflcally stating thet such person
has read the definition of "Grooa _" contained In this Lease, that such person has """mined the Vurty Report of
Gross Sales of such Vear, that such person's examination Included such tasts of Tenanfs _ and records as such
person considered necessary under the clrcumstances, and that the Vearty Report accurately represents the Gross Sal..
of such Year.
(c) An adjustment shall be made with the furnishing of each Vearty Report with respect to Percentage Rent as
follows: W Tenant shall have paid to Landlord an amount greater than Tenant Is required to pey as Minimum Rent and
Percentage Rent under the terms of SectIons 4.03 and 4.04(a), Tenant Ihall .-va a credll of such excess _Inst
payments of Minimum Rent next becoming due to Landlord; or, W Tenant shalt have paid an amount I..s then was
required to be so paid, then Tenant shall forthwith pay such difference, In no avant, ~, shall the sum of the
Minimum Rent and Percentage Rent to be paid by Tenant and retained by Landlord under the terms of SectIons 4.03 and
4.04(a) for any given Vear be less than the Minimum Rent for such Vear.
(d) The reports required by thls Section 4.06 shall be delivered to Landlord at the notices add.... of Landlord
or to such other person andlor to such other place as may be designated from time to time by notice from Landlord to
Tenant, W Tenant shall fall to deliver any Monthly Report andlor Vaarty Report when due, In addition to all of Landlord's
other rights and remedies hereunder, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five
DoIla", ($25.00) per day for each day such statement Is overdue.
_on 4.07: lCNAHT'S RECORDS & AUDITS.
(a) Tenant covenants and agrees that the business records of Tenant and of any subtenant, IlcensOa or
concessionaire shall be maintained In accord8nce with generally accepted accounting prtnclples. Furthermore, Tenant
shall keep at all tim.. durtng the Term, at the Premises or at the home or regional ofIIce of Tenant, full complete end
eccurate books of account end records In accord8nce with generally accepted accounting practice with respect to all
operations of the business conducted In or from the Premises, Including the recording of Gross Sales and the receipt of all
merchandise end other goods Into end the delivery of all merchendl8e end other goods from the Preml... during the
Term, and shall retain such _ and records, copies of all tax reports end tax returns submllted to taxlng authorities, as
wetl as copies of contracts, vouchers. checks, Inventory records and other docum_ and papers In any WfIy relating to
the operation of such bualness for at least three (3) years from the end of the period to which they ere applicable, or Wany
audllls required or a controversy should artse _ the parties _ regarding the Rent payable hereunder, until such
audll or controversy Is terminated even though such retention period may be _ the expiration of the Term or earlier
termination of this Lease, Such books and records shell be open at all reasonable tim.. during the _ retention
period to the Inspection of Landlord or Its duly authorized represen\a\Ives, who sholl hove full end free ecceos to such
books end records and the right to require of Tenant, Its agents and employees, such Informatlon or explanation and audll
- and the rtght to require Tenent to make such _, records and other malarlals whlcl1 Tenant Is required to retain
available at the Premlses for SUCh examination and audit.
(b) The acceptance by tI1e Landlord of payments of Percentage Rent shall be without prejudice to the
Landlord's examination and audll rights hereunder. Landlord may at eny _ lima, upon ten (10) days' prtor written
notice to Tenant, cause a complete eudll to be made of Tenanfs entire _, records and other materials whlcl1 Tenant II
required to retain (Including the books and records of any subtenant, licensee, conceoslonalre and other occupant) for all
or any part of the tine (3) year period Immediately preceding the day of the gMng of such notice by Landlord to Tenant W
such audllshall reveel e deficiency In any payment of Percentage Rant. Tenant shall forthwith pey to Landlord the amount
of the deficiency.
(c) If such audll shall disclose that (I) any of the VaarIy Reports u_ Gross Sales durtng the reporting
period of the report to the extant of two percent (2%) or more: or (II) Tenant has not recorded Grooa Sales, or kept books
of account and records, as and for the period required by this SectIon 4.07; or (JII) W Tenant ohell be delinquent In delivering
to Landlord the VaarIy Report or Monthly Reports for two (2) consecutive monthe, or more than twtce In eny V_ or Partial
Vear, then such understatement, failure or delinquency shall be an Event of Defaull. In addition, In the event of such
understatamant or fallure, Landlord shall have the right to bHl to Tenant the amount of eny deficiency In Percentage Rent
and the reasoneble cost of said audll which shell be pald by Tenant within ten (10) days after demand whlcl1 deficiency wltl
bear Interest at the "Defoun _" (defined In SectIon 16.03 hereof) from end after the date II should have been paid until
paid.
(d) In the event Tenent violates the provisions of SectIons 4.06 or 4.07 or both and as a resull of such
violation, landlord, or ita duty authorized representatives, Is unable to conduct a proper examination and/or audit, the
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March 4, 2005 \ VansantlJTF
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paI\IeI agree 1ha\ l.andIonl shall ha\Ie been doprlved 01 sn Important right unclerll1ls Lease ond. as a l'8Iun t_, will
suffer damages In an amount wIllch 10 not readly ....rtalnabla and lI1us, In ouch event Landlord. In addition to and not In
lieu 01 any other remedlel _ Landlord has under IhIo Lease. stlaw or In equity. shall ha\Ie the right. at ill optlon. to
collect. as Ilquldatad damages and not as a penalty. an amount equal to twenty percent (20%) of the greater of (I)
Pen:enlage Rant raportad for the period or periods In questton, or (II) lI1a annual Minimum Rent payable for the period or
periods In question, T.nant agl'lfll to pay such Ilquldatad damages.
SectIon 4.08: ADDITIONAL RENT.
In addition to Minimum Rant and PIlCI!\lage R.nt, Tenant shall pay. as additional rent (hareln IOmetlm.s
colleclively called .Addltlonal Rant.) all other amounto. sums of money or charges of whatooever nature required to be
paid by Tanant to Landlord pursuant to this Lease, wheIhar or not the oama 10 daalgnated 81 ._aI Rent.. The
tenns "Tax.... "Tax Charge.. .CAM Sum. and "CAM Charge. are deIlned In _ 5 and 8. I'8lpectlvely. In computing
the Tax Charge. the CAM CI\8IllI and any other charge to Tenant computed on the oam. or substantially similar baslo as
th. Tax Charge or the CAM Charge (_Iy "Other Llka e","_'). the net paymanll by the occ:upant of the Majors
and Junior Majors to Landlord toward the Taxes. the CAM Sum or the sums on wIllch Other Llka Charges are based
(coIIeclive1y the "OLC Sumo.) shall ba applied ....pettiIIeIy to reduce the Tax... the CAM Sum and the partlcular OLC
Sum before apportlonmant and det"""lnatton of 111. Tax Charge. CAM Charge or Other Llk. Charge to ba paid by Tanant
and for th. purpolll of computing the Tax Charge, the CAM Charge ond suct\ Other LIk. Charge, the denominator of th.
GLA Fracllon shall not Includ. the GLA of the MaJors' Preml... and the Junior Majors' Prem_,
SectIon 4.08: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS.
R.nt payable by Tenant under thIS Lose (wheIhar Minimum Rant. Percentage Rant. or Addlllonal R.nt) shall ba
paid wIl.n due without prior demand ~ (unless such prior d.mand Is expretlsly provided for In 11110 Lease). shall ba
payabl. without any deductlons or I8lOIfs or counte<Clalms __ (except for CNdill expretlS\y pamlllted by this
Lease) and shall be paid by T.nant to Landlord at the paym.nt address 01 Landlord set forth In the Fundam.ntal L....
Provlolons or to such payee and/or et ouch other place as may ba deaJgnated from tim.to tIm. by notice from Landlord to
T.nanl. At the .nd 01 the Term. provided Tenant Is not In default. Landlord shall !$fund to Tenant any amount of excess
R.nt paid to Landlord and any other amounts due from Landlord to Tenant. Any Rant. or Instalment _. wIlleh Is not
paid by Tenant to L.andIord WIllIIn """"" (7) calandar days after n Is due shall bear Interest at the Defaun Rete, In the
.vent any Installmant of Minimum Rent or other sum urlder 11110 Lease shall not be paid when du.. a ...... C"". of fIv.
cents ($.05) par each dollar 10 overdue may be ch8rged by Landlord, 81 Addillo!lal Rant. for the purpose of defraying
landlord's admlnl.trative expen... Incident to the handling of such overdue paymanll. ff Tenant pays any Installm.nt of
R.nt by check and such check I. returned for Ins_nt funds or other reasons not the f.un of Landlord. then T.nant
shall pay Landlord. on demand. a processing fee 01 One Hundred 00I18rs ($100.00) per returned check plus all appllcabl.
Late Charges and n 111"'" (3) checks are returned for Insutllclent fund. or other reasons not the faun of Landlord. all
subsequ.nt paym.nto to Landlord by Tenant shall be In the fonn of either a certified or cashier'. check,
ARTICLE 5: TAXES AND ASSESSMENTS
Section 5.01: TENANrS TAX CHARGE.
T.nant .hall pay to Landlord In each cal.nder year." Additional Rent. Tenanrs.hare of all reaI..tate and other
ad valorem tax.. and other ......m.nto, Imposlllons. excises ond other governmental or quuJ.governmental charges of
every kind and nature (including. but nolllmlled to. general ond .pecIaI......ments. .- and fire dlslrlcl a_m.nts.
fareseen as well as unforeseen and ordinary 81 well as llJClr1IortlIna) WIllI respect to the Shopping Canter and all
improvemento thereon or any part _. Such tax.. and ~ are collectively called the "T_. In this Lease.
T.nanr. .hare of the TaxIS In each calondar year (the "Till ChaIlI8.) .haIl be an amount equal to the product obtained by
multiplying the Taxes appIlcabl. to such calendar year by the GLA Fraction (WIllI dally proretIon for any Partial Year).
"T.... shall also Include Landlord's reasonable costs and .xpenses (including slstulory I~t, Wany) In obtaining or
att.mptlng to obtain any refund. reductton or deferral of Tax..,
SectIon 5.02: PAYMENT BY TENANT.
(a) Payment of the Tax Charge required under II1ls ArIicIe 5 shall be paid by Tenant in equal monthly
Installmentoln advance in such amounts es are ..timated ond billed by Landlord based upon the total Taxes payable In
._ calendar year. Landlord may revise ill estimate and may adJust.uch montl1ly payment et the and of any calendar
month. The first .uch In.tallm.nt .haIl be due and payebl. by T.nant on the Rant Commencement Date (prorated for the
remaining number of days In the calendar year) and IUbsequenllnstallments .haIIl1w_ be due and payable at the
beginning of each ensuing calendar monll1 during the Term. In addlllon to the paymanll provided for In the immediately
preceding sent.nce. n. prior to the Rent Commencement Date, Landlord shall have -'<l all or a ~ of 111. Taxe.
applicable to the Term. the Tax Ctl8lge .haIllnc1ude and Tenant shall ralmburse to Landlord the Tenanrs .hare of .uch
Tax.. (calculated In accordance with the provision. of Section 5.01~ on or before the Rent Commencement Date.
landlord shall.end to Tenant an invoice l8lllno forth Tenanr. .hare of ouch TaxIS. together WIllI coplel of receipted bill.
evidencing landlord's payment of such Taxes.
(b) After Landlord haS received the Tax bill. for each calandar year, Landlord wll notify Tenant of (I) the
amount 01 Tax.. on wIllch the Tax Charge Is based. (II) the amount of any !$fund. reduotIon or def..",1 expenseo. (iii) the
total GLA of the Premises and Landlord'. Building on w1t1ch the Tax Charge Is based and (Iv) the amount of the Tax
Charge. ff the aforesaid monthly paymants on account of the Tax Charge for a given caland.. year are greater than
T.nanr. share of th. Taxes payable for a given calendar year. Tenant shall __ a <ftdIl from Landlord for the .xces.
_Instlnstallm.nto of the Tax Charge next becoming dUlto Landlord. and ff sald paym.nto are lei. then Tenant'. .hare.
T.nant shall forthwIlh pay Landlord the difference.
SectIon 5.03: TENAHrS ADDmONAL TAX OBUGATIONS.
(a) Tenant.haIl pay before delinquency any and all tax... .......manll, Impoalllons. ..ci.... fees and other
AO_T_ICo.-<:84>ftalClty-Flnal
March 4, 2005 \ VaneentlJTF 10
ohr.rgea hwIod, .......ed or Impoe8d by governmental or quael-govemm_1 authorlly upon Tenant or Its business
operation, or based upon tha use or occupancy of tha Premises, or upon Tenaors leasehold Interes~ trade flxturas,
furnishings, aqulpment, leesehoid Improvements (Includlhg, but not IImIl8d to, those required to be made pursuant to
Tenaors Work) alteratlons, changes and addlllons made by Tenant. merchandlsa and personal property of any kind
owned, Installad or used by Tenant In, from or upon tha Premleaa, W tha property of Landlord Is Included In any of tha
foregoing items, tha aforasald_, _smenls, Impositions, excises, fees and oIher ch8'ge8 shall no_s be paid
by Tenant as haraln provided, Tenant shall pay, when due and peyllbIe, any sales tax, or oIher tax, assessment,
Imposillon, excise or oIher cherga .- or haraaiIIer lIWIed, asses..., or Imposed upon or against this ~aase or any Rant or
oIher sums paid or to be paid hereunder, or Tenanr., Landlord'. or Agent's Interest In this ~ease or eny Rent or othar
.um. paid or to be paid hereunder. Should tha appropriate taxing authorlIy requira that ony lax. ......mant, imposition,
axel.e or oIher charge _ to In this SectIon 5.03(a) be collected by Landlord or Agent for or on _ of .ueh taxing
authority, then such tax, _ament. Imposition, excise or oIher charge .haIl be paid by Tenant to Landlord or to Agent
monthly a. Additional Rant In accordance with tha term. of any notloe from Landlord or Agent to Tenant to.uch effect.
The taxa., _ments, Impositions, excises, fees and oIher ch8tges _bed In this SectIon 5.03(a) .hall be tha
obligation of Tenant and not tandlord or Agent. W 8IVf tax, as.es.ment, imposition, axelse, lee or other charge covarad by
thl. Section 5.03(a) I. Imposed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days aftar
racelpt of each bill tharafor.
(b) Nothing herein contalnad .hall be con.trued to includa In Taxas any Inheritance, eslata, succes.lon.
lransfar, gift, franchise. corporation, net Income or profit tax or capllai levy that Is or may be imposed upon Landlord;
provldad, however, that, W at any time during tha Tarm tha methods of taxation prevailing at tha commencement of the
Term shall be _ so that In lieu of or as a supplement to tha whole or any part 01 tha taxes .-Ievled, assessed or
Imposed on real eslata as such there .haIl be lavIed, a.....ed or Imposed (I) a tax on tha rants received from .uch real
..lata, or (II) a license fee measured by tha rants race_ by Landlord from tha Shopping Centec or 8IVf portion thereof.
or (iii) a tax or license fee Imposed upon Landlord wf11ch Is otherwise measured by or based In whole or In part upon the
Shopping Centar or any portion thereof, then tha same .hall be Included In tha computation of Taxas hereunder, computed
as W the amount 01 such tax or fee sO peyllbIe ware that due W tha Shopping Centec ware tha only property of ~andlord
subject thereto. W any gross """'Ipta tax .hall be peyllble by Landlord, Tenant .haIl pay tha portion thereof attrIbuteble to
Landlord'. receipts from thl. ~eaae.
ARTICLE 6: SERVICES
s-tlon 8.01: UTILmes.
(a) Durlng tha Term. Tenant .hall be soIaIy responelble for and promptly pay all ch8tges for heat, watar.
electricity, .ewer rants or charges, .prinkler charges, A.D.T. or oIher eIann system, water treatment facHlty charges, and
any othar uttllty u.ed or consumed In tha Premises or In providing '-ling and air conditioning to tha Premises together
with all connection and service charges and all _ or oIher ch8tges ieYlad on such utilities. Should Landlord elect or be
required to .upplyor make avaHabIe any utility used or consumed at tha Premises. Tenant _ to pun:hue and pay for
same, a. Additional Rent, every month In tha Tarm; provided that Tenant .ha11 not be obligated to pay to Landlord an
--'" annual sum therefor In ex.... of tha aggregate annual amount tharafor wf11ch Tenant would otherwise be
obIIgaIed to pay for similar u1IIIty usage and _ e. e ....n cu.tomer 01 tha public u1IIIty or municipal authorlly than
supplying .uch utility to tha Shopping Center. In addition, Tenant .hall also pay any _, surcharges, Imposition.,
penalties or oIher additional charges applicable to tha utility _ being .uppllad, provided that such taxes, surcharges,
Impositions or oIher charges ara required by law to be coIIectod from Tenant or are paid by Landlord to Its supplier of the
utility service In question. L.andlord may, at Its option, Install an Energy Ma_ent System to eflIcIen1ly conseMI utility
usaga and Tenant _ to pay monthly, tha sum of Fifty ($SO.OO) DolIn as Tenaors .hare of tha Energy M8nagament
System purchase, Installation. maintenance and upgrMle costs, ff permitted by law, L.andlord .ha11 have tha rtght at any
tima and from time to time during tha Tarm to eIthar contract for service from a dlllerant company or companies providing
utility service to tha Shopping Center,
(b) In tha avant the Premises does not prasantIy contain an aIactrtc or oIher uttllty matar, at Landlord'.
request, Tenant .hall, wfthln forty..fIva (45) days _ receipt of.uch request and at Its sole cost and expense, Install a
meter of a type approved In advance by Landlord. ~. at Landlord'. request, Landlord and Tenant .haIl entar Into
an amendment to thl. Lea.e apectfylng tha procedures for reading .uch meter and tha rendering of bill. to Tenant for tha
utility being 10 m_. In the event Landlord or tha local authcrily, munlclpallty, utility or oIher body supplies _ andlor
sewer servlcas and ~ for such _ and/or consumption, Tenant covenants and _ to pay tha watar and
sewer charge (both minimum and otherwise> and eny oIher tax, rent, levy. connection fee or _ or _ charge which
now or ~ I. ......ed. Imposed or mey become e lien upon tha Premises, or tha Shopping Centec, pursuant to law,
order or regulation made or Issued In connection with the use, consumption, malntenllnce or suppty of WIter. or the water
or soweraga connection or system. Such charges .hall be based on m_ readings or oIher formula specllied by
~andlord.
(c) Landlord .hall not be liable or respon.lble for any loss, damaga or expense Tanant may sustain or Incur
by raa.on of any change, failure, curtailment, In\emJptIon, dlaruption, 'brown our or defect In tha supply or character of any
utility supplied to tha Shopping Centar or Premises or W tha quantity or charIIctar of tha utHlty supplied by Landlord or any
service provldar I. no longer available or .ultable for Tenant'. requirements and none of tha foragoIng .haII con.tltute an
actual or con.trucllve eviction or entI1Ie Tenant to _ a-.nent or diminution 01 Rent or _ Tenant from any of Its
obUgations under this Lease. Tenant aheM operate the Premises In such B manner as shaN not waste energy or water or
burden or damaga tha utility lines therein.
(d) Landlord may, after thirty (30) days notice to Tenant, cease to fumlsh any one or more of the uttllty
services to the Premises. without eny reoponalblllty to Tenant. except to connect at Tenant'. .ote cost and expen.e,
Tenaor. distribution facHlties tharefor with another source for tha uttllty _ 10 discontinued.
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March 4, 2005 \ V.nuntlJTF
11
Section &.02: APPLICATION FoitUTlLITIES.
Tenant shell make aU applQllriale appIk:alIons to the local u\IIIIy companles 81 such times as ,hall be necesaary to
Insure utilities being ...1I8ble 81 the demlaed pI8II1_ no later thIn the commencemont of the term Ind pay ell required
deposits. connection foes and/or charges for meters within the applicable time period set by the locoI utility company.
SlCllon 8.03: TRASH AND GARBAGe ReMOVAL.
Tenont sholl be solely responsible for b'ash and gorboge removol from the Preml8es, Including the placing of III
trash and gerbege In contalnero provided by LandIo<U for 0U<:h purpose. In the e>Alntl.oncllonl _ to furnish such
service to the lenonts In Lendlord's Building. Tonant _ to use only the _ provided by Landlord Ind to pay for
such service (Including. withOut IIm_n, both the coot of _Ing contolners and the coot of removal) monthly, as
Additional Rent In occordance with I 8chodule of chargee to be establlohed by Landlord (the "Rofuoo _ling Chll'fll').
In no event shell Tenont be obIii1otod to PlY Landlord more for the ReIuoe Hlndllng Charge thon the prevailing competItiVe
rates of repulabIe Indepeudem \raah removal COIilr_tor. for _ Ilmllar to thot provided by Landlord. Tonant shall not
dlopose of any hazardoUs m_ or environmentally senanlve a< ....tr1cted Item of _Ie In any b'ash facIIltJeo provided
by Landlord. and In lieu thereof, Tenant shall amtnge, et Its sole cost and expense. to hoVe all such Items removed from
the Premises and Shopping Center In occordlnce with all Governmentol Requlremento (henlIn8ftor defined),
ARTICLE 7: USE OF PREMISES
Section 7.01: SOLE use AND TRADe NAMe.
Tenant covenants Ind _that throoghout tha Ront Term, Tenant shell contInUOU8ly use and operete 011 of the
Premises for \he use set forth In \he FundomentII Lease Provlolons and under Tenant's Trodo Noml set forth therein.
Tenant shall not use a< permft \he Prem_ to be usod for Iny other purpooe a< under Iny other !rode noml without \he
prior written conaent of Landlord. Tenont _\het ti Tenon! a< anyono else c1llmlng through or under Tenant uses the
Prem_ fa< a use or tradl nome not set forth In the Fundamental Lease ProvIoIons without Landlord's prior written
consent. such conduct ,hall constitute an event of Defauft. Tenant shell, at Its expense, procure any and all governmental
licenses and permits. including, withOut IImltallon. sign permits. required for \he conduct of business In or from the
Preml8es and shill, at all times, comply with \he requlremlnts of eech such 1_ and permn, Landlord does not
represant or warrant that n will obtain for Tenant (or thai Tenant will be able to obtain) any _ or permti.
Section 7.02: HOURS.
Tenant covenonts Ind _ thet throughout the Rent Term. Tenont shell continuously operate, conduct Its
business within and _ use the Prem_ In accordance with \he terms Ind condlllons 01 this Lease. Including.
Without IImltalion, the provisions of SectIon 7.01 hereof and all of \he other provisions of thlo Article 7 (unleos\he Premises
are rendered unfit for occupancy by reason of fire a< other casually, In wlIIch event Article 12 8haIl conIJoI). Tenant will
keep \he Preml8es open for business to \he public at 1ea8t: (a) every Monday through Saturday from 10:00 I.m. until 9:3O
p.m.; and (b) also on Sunday from 11:00 a,m. until 7:00 p.m. (unless prohlbltsd by jurtsdtctlonaJ authorttieo) as required by
Lendlord. In addition 10 any other right or remady. \he Break Point shall be reduced. at Landlord', option. on a per diem
basis for each violation 01 \he foregoing and Tenont shall pay to Landlord the Pllcentage Rent so computed by Landlord.
The per diem reduction ahaII be \he omount 01 \he appllcabla Break PoInI divided by 385 for eech vloIatlon. T enent_
that Landlord may change \he foregoing bullnass hours from time 10 time to _ local CUllom or s.sonaI shopping
pattems provided thot such changes are uniformly applied 10 the majority of llllaI tenants In Landlord's Building. Tenant
shell nol be requlnld to keep \he PremJsas open during hours wilen the Enclosed Mall 10 cIooed to \he public. The
requlremento 01 this SectIon 7,02 are subject. with respect 10 any business controlled by governmental raguIatIons In Its
hours of operation. 10 the hours or operation so prescribed by such governmental regutallons and are further subject 10
applicable _rei, s_. and local envlronmentoland other 1_. NIeo, a< regulations. guidelines. Judgments a< ord....
_on 7.03: OPERATIONAL ReQUIREMENTS.
Tenont_ thot n:
<a) will not In connection with the Preml_ conduct a< permn 10 be conducted any auction, fire, benkruptcy or
going out of business sales, or slmlar type sale, a< utHlze any unethical method of _ness; provided, hoWever, thot this
provision shell not....trIct the absolute fraodom (as betwwn Landlord and Tenont) of Tenant to -.nIne Its own Selling
prlcao nor shall n preclude the conduct of periodic, s_onol. promottonol a< clearance .-:
(b) will not use a< permti tha usa of Iny apparatus for sound and/or light reproduction or transmission
Including loud_k.... phonographs. radios a< _Ions. or of any musical Instrument In such manner that the sounds
so reproduced. transmlltod a< produced shl" be audible beyond \he 1_ of the PremJsas; will not distribute. a< causa to
be distributed, et \he Shopping Center a< In any pert thereof any handbills or other _sing or notices; and will not
conduct a< permn any actMIles thot might constitute a nuisance, or which .... prurient or _ not genara\ly
considered appropriate In occordance with standords of operation for \he Shopping Center estaIJIlshed by Landlord; will
not Install any antennae or other communication equipment on the roof of Landlord's Bulkllng or anywhere on the exterior
of the Premises;
(el will keep ell mechanical apparatus _ 01 vibration and noise which may be transmmed beyond \he
conlinas of the PremJsas; will not cause a< permn strong. unusual, offensive a< objectionable sound. sights. odors. fumes.
dust or veporslO emanete a< be dl,peIled from the Preml_:
(d) will not load or perm" \he loading or unloading of merchandise. supplies or other property, nor ship, na<
receive. outside the .... and entrance desIgnetad therefor by Landlord from "me to time: will not perm" the perking or
standing outside of said oraa 01 trucks, trallara, or other vehicles or equipment engaged In such Ioedlng or unloading In a
manner which may Interfere with \he use of any Common Ateas or any pedestrian or ~.. use and good regional
shopping center prac\Ice; will usa Its best efforts 10 complete or cause 10 be complated all _. loading, unloading
AllIIfarentTwIslPretzaICo..(;apItoIClty-flnsl
March 4. 2005 \ Vansant/JTF 12
and services to the Premls.. prior 109:30 a.m. _h day;
(e) will not pelnt or decorate any pert of the exterior or Interior of the Prem,-, or change the archllectural
treatment, flxluring, decor or other appearance of the Interior or .- of the Prem'-, without flrat obtaining Landlord's
wrIIten approval of such pelnting, decoration or change; and will remove promptly upon order of Landlord any paint,
decoretion or change which has been applied to or Installed upon the exterior or Interior of the Premise8 without landlord's
written approval;
(I) will keep the Inside and outside of all gI..s In the doors and windows of the Prem'- clean end will
replace any cracked or broken glass with glass of the same kind, size and quality; will malntaln the Premises al ns own
expense In a clean, orderly end sanitary condlllon and free of Insects, rodents, vermin, and other pests and will usa an
extenninator deslgnlled by landlord and at times designated by landlord; will not bum or permtt undue accumulation of
garbage, trash, rubbish and other refuse; will (subject to SectIon 6.04) remove the same from the Premises to compactora
or other receptacles designated by landlord, and will keep such refuse In proper contalnera In the Interior of the Premises
until so removed from the Preinlses:
(g) will comply with all appliceble federal, state and local anvlronmental and other laws, rulas, ragulatlons,
guidelines, Judgments and ordera and all recommendations of any public or prtvate _ncy having authorIIy over Insurance
ratas which now or In the future enact requirements with respect to \he use or occtJp&ncy of \he Prem'- by Tenant,
including, wtlhout IImltatlons \he requirements Imposed by the Americans with olsablllllas Act which Imposes requirements
relating to the design and use of the Premises and the requirements Imposed by the Clean AIr Act which Imposes, among
othera, requirements relating to the venting, use of, and disposal of chIorofluorocarns and other refrigerants (coIIecItvely
the "Govem_ Requl_"); will not use or permtt the use of any portion of the Prem'- for any unlawful
purpose; and will conduct lis business In the Prem'- In all respects In a dignified manner and In accordance with high
standards of store operation;
(h) will provide, or cause to be provided all securtty within Its Prem'- as n deems appropriate;
(I) will also comply wIlh and obaerve all rules and ~latIons astabllshed by landlord from time to time In
accordance with SectIon 6.05;
0) will not permn the use of any portlon of the Premises for soIlcllstions, demonstrations or any activities
inconsistent with reasonable standards of a flrsl class shopping mall;
(k) will not use, or permtt to be used, the malls or sldewaJks adjacent to \he Premises, or any other space
outside of the Premises for the display or sale or offering for sale of any merchandise or for any olher business,
occupation or undertaklngj
(I) will provide or cause to be provided wIlhln the Premises, wtlhout cost or expense to landlord, adequate
lighting and securtty for tts licensees, Invitees and employees during such periods as the Premises are open for business;
(m) will maintain alall times a full staff of employees and a complete stock of merchandise and other goods
consistent with the use of the Premises;
(n) will conduct lis business to maximize Gross Sales;
(0) will within ninety (90) d;.y. before or after the fifth (5th) anniversary of the Rent Commencement Dale at
Tenanfs sole cost and expense remodel the Premises. Such remodeling shall Include refinishing, renewing end/or
replacing the floor coverings, wall coverings, lighting, ceiling, flxlures, furnishings, equipment and other trade flxlures at the
Premises end, In landlord's reasonable Judgment, all other work -.ary to put the Premises in a state of _rence
and condnlon conforming to landlord's then current sta_ for retail tenants of landlord's Building. All of the provisions
of this Lease which apply to Tenanrs Work Including, wIlhoulllmllatlon, \hose for Final Plans and Completion CertIflcale,
shall apply to \he remodeling; .
(p) will conduct lis labor relations and lis relations with employees In such a manner.. to avoid all strikes,
picketing, boycotts or hand billing at or aboul the Premises and the Mall Premises. Tenant further _IhaIII, during \he
period of any work by or for Tenant In or about \he Premlsas In con_ with auch work there Is a strlka, picketing,
boycotting, hand billing or other activity objectionable to landlord, Tenant shall remove or cause to be removed from \he
Premises and the Mall Premises ell peraons, to the extent not pro/llbI\ed by law, unll auch strlke, picketing, boycotting,
hand billing or other acIIvIty ceases and lhe causa thereof Is settled to landlord's Se\lsIactIon;
(q) will not, without obtaining landlord's prior wrIIlen approval, which approval may be withheld In landlord's
discretion, Install any storage or propane tank, whether above or underground, at the PTwm'- or In the Shopping Center
and II Landlord shall consent to such Installation, Tenant will comply with all appItcable laws, ~ and underwriter
requirements concerning the installation, operation, and closure of auch tank. Upon termination of thll Lease, landlord
shall have the opllon of requiring IhaI Tenant, et Tenanrs sole cosl and expense, perform leats rele11ng to the condition of
such tank and/or remove any tank Installed by Tenant and 8IIOCIa\ed contaminated material. Tenant shell be deemed the
owner and operator of any tank Installed by Tenant. Tenant shall relocate such tank at Landlord', request and at Tenant's
expense, to another location acceptable to Landlord;
(r) will, II appliceble, Install and properly maintain a grease trap and either a "black Iron duct", or other sell-
contained venting and exhaust system acceptable to Landlord. Such Items shall be Installed In 8 manner, of materials and
al a location approved In advance by landlord and shall, at landlord's option, connect to trunk 1acllIIIas, II any, supplied by
Landlord for same;
(s) will not use the plumbing facilities for any purpose other than that for which they were constructed and will
not dispose of any damaging or Injurious substance therefn;
(I) will not install, or permtt to be Installed or operate eny coin or token operated vending machine, game
machine, pinball machine, pay telephones, pay lockers, pey toIIsIs, scales, amusement davlces and machines for the sale
ADItlerentTwI_eo.-capItaIClly-Flnsl
March 4, 2005 \ VaneantlJTF 13
of be_", foodo, candy, ~ or other commod_, except IOlIlly lor use by Tenanfs omployoes In non .alel
area and not to exceed coIlec11Vely two (2) machl_ 01 other de_; and
(u) will not store, display, rent or s"'l any audio 01 video cassatt..,
SectIon 7.04: TENANl'S USE OF ROOF, EX7ERIORWALLS, ETC.
Tenant shall not. without havtng obI8Insd \he prior wrIIIan consen1 <If \he landlord, peIfoml any -" of any nature
wI1alaoevor to \he roof, extartor walll or to any of \he structural portions of Landlord's Building 01 \he Premises Olin areas
reserved to landlord 01 excluded from Tenant In \he Store Deslgn~. A/rf damage to \he P<eml... or eny parson or
property occ:urrtng .. a ""'ull of a breech of thle provision shall be \he oole "",ponslbtllly, cost and _ of \he Tenant.
Notwith.tandlng Tenant's rlghla lI8llorth elHWhare In thle Lease, landlord may 8I1ICt addltlonals_ 01_ structures
0_ all or any part <If \he P<emlses, LandIord'. Bulldlng and any _ part of \he Mall P<emlses. In connection with such
arectlon, or otherwise, Landlord may relocate Tenanfs equipment and may erect temporary sealfoIds and other aids to
.uch con.tructlon atlal\dIord's lOle cost and expense.
_on 7.05: OPERATION OF HVAC SYSTEM.
Tenant agrees, during \he hours the P<emlses Is open lor business, to control andIOI oparete .. applicable the
HVAC .ystem _g \he P<em_ ~rdIes. of _ such equipment W88 Installed by Landlord or Tenant so that
condlllons Inside the Premises are maintained within a range of 72 to 75 degrees Fahrenhell or within such range .. may
be prescribed by applicable govarnmentaI _ so lhat heel, v_ and cooled air are not drained from the
Premls.. or ths Enctosed Mall.
Section 7.08: EMPLOYEE PARKING AREAS.
landlord may, from tlma to Uma. designate that particular potI1ons of \he Shopping Cantar parKing area. (the
"Emplo_ Perldnll_") are to be ued by Tenant and Ita omployMs. or other Indlvld.-1s -'<Ing at or from the
Preml.... If landlord does so, Tenant and Ita omployees shall part< their vehicles only In \he Employee ParkIng Areas.
Tanant .halllumlsh Landlord with a lilt of Tenanrs and omployees' _1_ numbarl within ltIteen (15) days_
Tenant opens lor busl"""s In the Praml.... and at landlord's req_~ the Tenant shall therelIfter nottfy landlord In writing
of any addition, deletion or other change to 01 from such list within flve (5) days _ Landlord mak.. such request
Tenant .hall notify each omployM In wrIlIng of the provisions of this SectIon 7.08 prior to each omployee commencing
omploymenl or -" at or from \he Preml..... II Tenant or enyof Ita omployoes do not pari< their vehicles In the Employee
Parklng Areas, landlord may give Tenant nob of such violation, II Tenant does not ClllII8 such violation, or cau... .uch
violation by tha emptoyee to caese, as the cue may be, within two (2) days _ Landlord's nolIce of vIoIa1Ion ill given,
Tanant .hall pay to Landlord, .. Additional Rent, an amount equal to Twenty Five Dollars ($25.00) per day per vlolaUng
vehicle. For any subeequent violations, said Twenty Five DoIJars ($25.00) par day par violating vehk:le charge shall
commence wtthou1 the _1Iy of lurthar noUce, and Landlord shall, In addition, have the right to have the violating
vehicles towed at Tenanfs expense.
Sectlon 7.07: NON.cOMPETITION COVENANT.
Tenant covenants and agrees with Landlord that through the Tarm, nalther Tenant or any .AIIII.... of T...lIIIl.
(haralnaftar dalined) shall directly or Indirectly own, oparate or manage or have a financlalln_ in any bull_s wIlich Is
.Imllar to that of Tenant or wIlich sells or dleplays, directly or Indlrec:tly, merchandise or _ goods, or _, similar to
those sold or offered or dllpl~ by Tenant at or from the Premises (the "C.........ng ......") within five (5) mlle8from
the property line of tha ShoppIng Canter _110 \he Compe1lng Store (the foregoing covenant being hara_ called
"T...IIIlt'. Non.com........n CovenMl"). 'AflIIIIIIll of T....nt" mean. a proprtatorshlp, corporation. partnership,
unincorporated _ or other person or entity .controlllng., .controIled. by or under common "control" with Tenant,
The words "controlling", "contralled' and "conbar shall have the meanings given them under the Securtlleo Exchange
Act of 1934, .. amended. II the Tenant'. Non.compatltlon Covenant Is vIoI.ted, then, In addition 10 all other rlghla and
remedlel, Landlord shall have the right to add the .gross receIpta of the Compatlng Store" (het...._ dalined) to the
Groos Salel made by Tenant hereunder lor tha purpose of computing PIlI'C8/lbIge Rent. The phrase "graD _pis of
the Comp<<lng _. shall be delarmlned by applying the dalin1tlon or Gross s-. at SectIon 4.05 to tranoactlons of tha
Competing Store. Tenant shall Include the addl'llOo and identity or Ita bull_s at the Premises In all ed_ents made
by Tenant in wIlich \he edd..... and IdenUty of any similar /OOaI bu_ of Tenanlls mentioned and shall not divert from
tha Preml... any transactions or other buslna.. wIlich would occ:ur et or from the Praml....
SectIon 7.08: SIGNS AND ADVERTISING.
Tenant.haII not place or parmk to be placed on \he extarlor of the Praml.... or w1_ Olin the .tore lronl or
roof, any sign, bannar. decoration, leltarlng or _ng mattar (coIIecllvely a "atlln") without the landlord's prior wrIlIen
approval. Tenant shall submn to landlord reasonably detailed drawings of 1\1 prop<l6ed signs lor review and approval by
Landlord prior to utilizing same; _er, Tenant may without such approval use In the store front professionally made
reasonably sized signs indicating prices, .tyIes and like Information, All signs sholl be Insured and melnl8lned at all times
by Tenant In good condition, operaUng order and repair. Flashing signa are prohlblled, Tenant shall Install one Internally
illuminated. individually _ sign or _ type of .Ign as speclfled by landlord above the s~ of the P<emises
and profes.lonally 1_ name signs on lis _ cIooro In accordance with the Final Plans or _ plans and
specification. previously approved by landlord,
landlord .hall have tha right, after twenty-four (24) hours prior wrIIIan notice to Tenant and wIthoulliabillty lor
damage to the Preml... reasonably caused thereby, to remove any Items displayed or alIIxed In or 10 the Praml... wIllch
landlor<l determines (In Ita _Judgment) to be In violation of \he provisions of thill_7.08.
Tenant will keep tha .torefront sign and dleplay windows In tha Premises lighted during all periods thallhe
Shopping Center Ie open to tha public and lor ona-haIf hour _ required bustness hours and lor such other periods a.
may be reasonably required by rule. and regulation. astabllehed In accordance with SectIon 8.05.
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ARTICLE 8: COMMON AREAS
SectIon 8.01: USE OF COMMON AREAS.
(a) Tenant and Its employees and 1_ ara, except 88 otherwIae speclllcaJly provided In this Lease,
authorized, empoMnld and prMieged during the Term to use the Common Area for their raspective intended pu_
In common wtlh other peraona. Tensnfs riglrt to use any meeting room or auditorium, Wany, In the Common Anl88 shall
be subject to such schedules and payment of such fees or charges -.. 88 Landlord may from time to time adopt
governing the use t_.
(b) Landlord shall at all times have the right to utilize the Common Area Including, without limitation, the
Enclosed Mall for promotions, exhibits, camlv8l type shows, rides, outdoor shows, displays. automobile and other shows or
events, the leasing or licensing of kiosks, push carts and food 1acII1tIes, landscaping, _ting ......, aeaaonaI displays.
decorative ltams, and any other use which, In Landlord's judgment, tends to attract customers to, or benefit the customers
of the Shopping Center.
SectIon 8.02: COMMON AREA MAINTENANCE SUM.
(a) The term "Common Ana M"_ce Sum. (or the "CAM Sum.) shall be charged and prorated In the
manner hereinafter set forth and shall mun all sums Incurred In a menner deemed by Landlord to be reasonable and
appropriate and for the best Interests of the Shopping Center In connection wtlh the operation, rapalr and malntenance of
the Common Areas and the Shopping Center (and any additions !herato), Including, wtlhout limitation, the costs and
expenses of:
(I) operation, Inspection and/or maintenance of the stonn, senltary, _, gal, steam, water,
telephone systems, lighting system (Including poles, bulbs, and 1Ixtures), and other utility Systeml, Including plpes, ducbl
and similar ltams; d_nal Ilgns and other tratfIc signals, markers, controll, signs (Including a1lldentlllcatlon signs) both
on and off site:
(II) snow, Ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and
rapavlng all parking surfllces, _ areas and other portIonl of the Common Area;
(III) operation and/or maintenance of aU _ng, ventilating and air cooling and other utility systems,
emergency water and sprinkler, security, life safety systems, pumping .yatems, eIectrIcaJ .ystems and all escaI.tor and
elevator systems and any other Items, facHlties, equipment, and systems furnished by Landlord 88 part of the Common
Areas;
(Iv) premiums .nd other charges for Insurance to the extent provided by Landlord, Including without
limitation, liability inaurance for penlonaI and bodily Injury, death lII1d property damage; lnaurance covering Landlord's
Building and the Common Area agolnat flra and extended CXl'I8I8\l8 pertIs; theft or ......-; wori<ers' compans.tlon;
pl.te g1.ss Insurance for glass exclu.1veIy serving the Common Area; boiler lnauranee (W carried); losses borne by
Landlord as a raauIt of deductibles or seIf~naured ratentlona carried by Landlord under .n Insurance policy or self
Insurance by Landlord; Landlord's risk m.~ment expenses .nd rent lnaunmce provided by Landlord pursu.nt to
SactIon 11.02;
(v) operation and/or maintenance of gazebos, fountains, art faatures, sculptures, fanclng .nd slmll.r
ltams located wtlhln the Common Area .nd Interior .nd exterior planting, repI.ntlng .nd replacing of all flowers,
shrubbery, pl.nta, trees and other landscaplng wtlhln the Common Area;
(vi) operation and/or m.lntenance of L.ndlord's BuNdlng's structura, Including, without limitation,
floo"" doors, walls, ceNlng, roofs, skylights, and windows;
(vII) m.lntenance.nd depreciation of .11 machinery .nd aqulpment used In the operation or
maintenance of the Common Areas (including but not limited to all _, e1.....tors .nd other vertical tranlportatlon (W
.ny), security vehicles .nd aqulpment) .nd .11 penlonel proparty taxes and other charges Incurred In connection wtlh such
machinery and equipment;
(vIII) alii_ .nd permit fees, any.nd .11 parking surch.rges that may rasu~ from .ny environmental
or other laws, rules, regulations, guidelines or orders;
(ix) the expense of lnatallatlon and operation of Ioudspesker systams, music program services, cable
television systems, or almH. audio or video transmission systems;
(x) personnel, Including without limitation, cleaning .nd maintenance peraonnel, Landlord's
m.~menl.taff (which Includes the General M.n.ger, Asslstent Mll_, ......Ies, book"-.nd accountants
(regardless of where the afores.1d penlonnel are located)) together wtlh the unllom1s, payroll, payroll taxas and employae
ben_ of .11 such personnel;
(xl) the expense of security penlonnel .nd aqulpment, Including, without limitation, uniforms 88 wall .s
transportation and surveHlance equipment;
(xII) all COIta, charges, .nd expenses Incurred by Landlord In connection wtlh .ny change of any
company providing electricity aervIce, Including, without limitation, malntanance, repair, Installation, .nd service costa
associated therewith;
(xiii) all expenaes Incurred by Landlord .t the same rate per un~ Landlord charges to tenants, In
connection wtlh refuse dlspoaal, water .nd sewer, ges, steam, exterior site lighting, electricity, .Ir conditioning, heating,
.nd other utilities, Including, without limitation, .nyand .11 uaage, aervIce, hook-up, connection, avaiI.bilty .nd/or standby
fees or ch.rges pertaining to same;
(xlv) Landlord's supervisory charge In .n .mount aqual to _ percent (15%) of the total aggregate
cost of operating .nd malntalnlng the Common Areas, Including but not limited to those things listed In SectIon 8.02(a);
.nd
(xv) expanding, adding to or recontlguring the Common Area (or .ny portion thereof).
(b) Notwithstanding the foregoing, the CAM SUm sh.1I not Include:
(I) the expanse of .ny repair or replacem.nt required of Landlord pursu.nt to the reconstruction
obligations of SectIon 12.01;
(II) depreciation (other th.n depreciation as .bove speclfled); .nd
(III) .ny utilities which .ra directly metered or .ubm.tared to ten.nta In Landlord's Building,
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March 4, 2005 \ Val1MntlJTF 15
(c) NoIwIthotandlng anything contalnad In this Laase to the contrary, In calculating the 'CM Charve"
(dellnad In SectIon 8.03), the CAM Charge moy be based upon Landlord's astimates, which astlmates and paymants
thereon shall be subject to edJustments In luture billngs to Tenent based on Landlord's actual COSL " being understood
and agreed that In _Inlng actual costs, Landlord in Its sole discretion, will make allocations of cartaln Items baIween
the Enclosed Mall and _ portions of the Shopping Center of which the Enclosed Mall Is a part, which need not be
baaed on relative size or use.
(d) Landlord may cause any or all malntanance 8er1Ices lor the Common Areas to be provided by an
Independent contractor or contractors or others and the costs therefor shall be included In the CAM Sum. Except as
provided hereinabove, none of the costs lor the original constnJction and Installation of the Common Areas shall be
Included In the CAM Sum.
(e) W Landlord I",!" time to time acquires, or makas available, additional land or improvements lor parking or
other Common Area purposes, the CAM Sum shall also Include all costs and expanses Incurred by Landlord In connection
with the operation or maintenance of said eddlllonalland and Improvements.
(I) The words .malntanance', .malntaln" or "maintaining" as used In this ArtIcIa 8lnc1ud.., without limitation,
all repairs, replacements and _ work and service of any type whatsoever.
Section 8.03: CM CHARGE.
(a) Tenant shall pay to Landlord, as Additional Rent, Tanant's share of the CAM Sum In the manner set lorth
In Section 8.03(b) and (c) below. Tensnfs share of the CAM Sum lor each calender year shall be an amount equal to the
CAM SUm lor that period multiplied by the GLA Fraction (the 'CAM CIw'ge"). For any Partial Yeer, the CAM Sum will be
multiplied by the Partial Yaar Fraction with the result multiplied by the GLA Fraction.
(b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calandar month
In the Term thereafter amounts astimatad by Landlord to be Tenanfs monthly share of the CAM Sum. Landlord may
adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated
costs.
(c) Following the end of each calandar year, Landlord shalllumlsh Tenant a statement covering the calendar
year Just expired, cerlIfIad as correct by an Independent public accountant or an authorized ~ of Landlord,
showing the CAM Sum and the amount of the CAM Charge and the payments made by T"""nt with respect tharato as sat
lorth In the pJ8Cedlng Section 8.03(b), W Tenanfs aggregsta monthly payments on account of the CAM Charge are greater
than Tenanrs share of the CAM SUm, Tenant shall receive a credit lor the excess against monthly Installments on account
of the CAM Charge next becoming due to Landlord; W said payments are I... than aald share, Tanant shall pay to
Landlord the difference forthwith.
(d) Landlord may have her8toIore _to spread, and may _ elect to spread, the amount 01 any of
the expenses of the CAM Sum over such period of years as Landlord shall -.mIne by amortizing them over such
periods insteed of Including such expenees antlraly In tho year In which expended or Incurred, In which evenL the annual
amortization amount shall be deemed to be an expense incurred during each year of the amortization period,
notwithstanding thet such expenses may have boon .xpended or incurred prior to the execution of this Leas..
Section 8.04: CHANGES BY LANDLORD.
As balwoen Landlord and Ten.nt, Landlord shall at all timas have tho right and prtvilago of -.mIning the natura
and .xtent of the Common Areas and of making such changes, rearrangement, additions or reductlona therein and thereto
from time to time which in Its opinion are deemed to be daslrablo or which ara made as a result of any federal, stat. or
local environmental or _ law, rule, regulation, guldallne, Judgment or order, including but not IImllod to, the location,
relocation, .nlargem.nt, reduction or addition of drlvawaye, entrances, oxIls, automobllo parking spaces, employee and
customer parking areas (W any), the direction and flow of traf!ic, Instaltallon of landscaped areas, and any and all other
lacllltlas of the Common Areas. Landlord (or others entitied to) moy from time to time make oIleratIona, renovations,
reductions, or addlllons anywhere within Landlord's Building or to the Common Areas or _ pert of the Shopping Canter
or any lands or improvements added tharato, oonotruct additional buildings or Improvements on the Common Areas or
elsewhere and make ~ns tharato, build additional stortoa on any buildings, conatnJct mulll-lavol or _ or
underground parking facIl_, and constnJct roof, walls, and .ny _ Improvements over, or In connection with any part
of, or all of, the Common Areas In order to enaoee same.
_on 8.05: RULES AND REGULATIONS.
Tenent ag_ that Landlord may astabllsh and from time to time chango, alter and amend, and onforco _Inst
Tenant, such reasonable rulas and regulations.. Londlord may deem nocoaaary or _blo lor the proper and oftIctont
use, operation and maintenance of the Common Areas, provided that all such rules and regulations affoctIng Tenant and
its Invlteas and employeas shall apply equally and without disa1m_ to subatantlally 011 of the retail tenants In
Landlord's Building or substantially all retai tenants engaging In certain acIS or of a certain use. The rules and regulations
heraln provided lor may Includa, but shall not be limited to, the hours during which the Common Areas shall be open lor
use.
Soctlon 8.08: LANDLORD.S MAINTENANCE AND CONTROL
Landlord agrees to maintain .nd operate, or cause to be maintalnad and operated, the Common Areas in good
and reasonable condition and manner, Landlord shall, .. between Landlord andT.nant, at all timas during the Term have
the sole and exclusive control, menagement and direction of the Common Areas, and _ provide or cause to be
provided, security In the Common Areas at a laval datennlnad by Landlord (and Tenant shall provide, or cause to be
provided, adequate security within T.nanfs Proml..s as Tenant dooms oporoprlate). LondIord may at any time and from
time to time during the Term exclude and reetraln any penson from use or occupancy of any of the Common Areas,
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M."", 4, 2005 \ V.nsantlJTF
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\... . ,
excepting, however, Tenant and otI1or tonanll of Landlord and bona lido In_ of liIlfiot who make UN of sold eroo. for
tholr Intended purpoooo and In acconlonce with tho ",100 end rogulatlona established by Landlord from time to time with
respect thOt'Oto. The rights of Tenent In end to tho Common AI'-. .haH at en times be.ubject to the rlghll of others to
use the .eme in common with Tenant, and ~ .haIl be tho duty of Tenant to keep all of tho Common AI'-. free and clear of
any obstructions or Inlelforoncos crooted or ponnltlod by Tenant or rosultlng from Tenant'. operation. Landlord may at
any time and from time to time clOH all or any portion of the Common AI'-. to make repairs or chongoo, or to such extent
as may, In the opinion of Landlord, be neces.ary to prevont a dedlcetlon _ or tho accrueI of any rights to eny _n
or to tho public therein, to clOH temponlrlly any or all portiona of tho Common _. and to do and perform .uch other
acts In and to Common AI'-. as, In tho exon:lse of good bu.l..... Judgment. Landlord shall determine to be _bIe
with a view to the Improvement of the conv&nktnce and un thereof by occupants and tenants, their employees and
Invlteea.
ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 8.01: MARKETING SERVICE.
(a) Landlord he. ostebllshed or will estebllsh an edvertl.ing and prom_ ll8IVIce (herein caned tho
"Morkellng ServIce.) to fuml.h and maintain advertI.lng and sales promotion. which, In Landlord'. Judgment, wtll benefit
the Shopping Center. Landlord has establlahed or will establlah a fund (tho .M-..g ServIce Fund') to be used by
Landlord to pay all costs and expon_ associated with tho formulation and C81rytng out of en ongoing program for tho
advertl.ing and other promotion of tho Shopping Center. The program may Include, wlthout limitation, .paeIaI evenll,
s_, dlaplays, .Igns, merqu_, decor, lI88SOIllII 0Y0nts, ~ for tho Shopping Center, prom_ litorat1Jre and
other activities to market tho Shopping Contor booed on .um. coI_ from tenanta, Tenant .haIl pay, ..Ita .hare of the
cost and expanse of the Merkellng _ for tho _ caIondar _ [eo deIInod In SectIon 9.03 (a) set foi1h horelnbelow}
of tho te"" of tho L..... tho amount set forth In tho FundarnontallMla Provisions (herein caNed tho .M_1IlI Service
Ch_.). The Markellng _ Charge for any Partial Year .haIl be determined by multlplylng Tenanr. Marketlng
ServIce Charge by tho PartIal Year Fraction. The Minimum AdvertIling Charge for any Partial Year Ihall be determined by
multiplying Tenanrs Minimum AdvertI.lng Charge by tho Partial Year Fraction.
(b) Landlord may appoint an advtoory comm_, composed at least of a repreoentative of Landlord, a
repreMntative of oach Major, and a repreoontatlva from oach of IIx (6) tenants In Landlord'. Building to review tho
advertl.lng and other promotional actIvttIos provtdod, Such comm_ lhall function solely In an advt.ory capacity subject
to Landlord'. discretion. .
(c) In addition, Landlord may use tho Marketing _ Fund to defray tho COlli of admlnl.tration of.tho
Marketing SorJlce, Including, without limitation, tho salery and be_ of a marketlng director and related admlnl.tratlve
personnel, rant and Insurance.
(d) NotwIth.tendlng tho provlalon. of thla Article 9, Landlord may, at any time, In III .00e discretion. declda
that Landlord wtll, on and after a cortaIn date _. no longer provide tha Marketing SerlIce. Landlord may C88se
perfo""lng tho Marketing _ on tho _ so .pecIfIod by tho Landlord. provtdod that nothing herein .hall require
Landlord to breach or faU to perform any _mont or obligation ~ has made with or to any thlrd _n In connection with
the Marketing _. K Landlord dolemllnoo that ~ Ia or may be at r1ak of any .uch broach or faHure. Landlord need not
cease performing tho Marketing _ until Landlord determines that such r1ak he. pa.sed.
(e) In tho ovant that during tho Term thoro I. (I) any renovation of tho Landlord'. Building or tho Enclcead Mall
which also Involves tho renovation of tho otoreIronts of fifty porcen\ (50%) or more of tho oxlatlng tenants' .pacoo (a
._ __,; or (II) any _Ion of l.andIonl'. Building which 100 ..... tho GlA a1Landlord'. Building by
ten percent (10%) or more (a "Building Exponolon.). then at tho time aI a Storefront Renovation or Building Expansion,
Tenant .hall pay to Landlord (_ thoro Is and In ooch COO8 of a Storefront RonovatIon or a Building Expansion) a
.paeIaI aSlHamon! (tho "SpocJo11loo..mont") In an amount oquaI to tho M_ng _ Charge (and In addition to
tho Markellng _ Charge) for tho caIondar yoer of completion aI a Storefront RonovatIon or a Building Expan.lon,
Fund. coIl0ct0d by tho Speclal _mon! will be used for exponslonlrenovatlon adverIIoIng and/or .peclal events to
promote tho Storefront RanovatIon or tho Building Expan.lon.
(I) Landlord .-vas tho right, In III sole discretion, to recommence providing tho Markellng SerlIce at any
time after Landlord ceased providing tho some.
Section 9.02: TENANTS MINIMUM ADVERTISING OBUGATION.
Deletad.
SoctIon 9.03: ADJUSTMENTS AND CHARGES.
(al The Marketing _ Charge .haIl be adju_ annuaNy by a percentage equal to tho percentage
1ncrea80 or deaoaoo In tho eleclronlc. print and outdoor _ng ratoo of tho media used for advertising and
promotion. In tho preceding calendar yoer In tho media market In which tho Landlord'. BuHdIng Ia located; provided,
however, that tho Marketing _ Charge .haIl not be Ieso thon eo set forth In tho Fundamental L.... ProvIolons. The
celondar _ In which tho Rent Commencomont Date OCCUB Ihall be conoldered tho _ calendar year and overy other
calendar year thoreattor a revl.ed base calendar year In computing tho edJustments hereunder.
(b) Tho Marketing ServIce Charge .halI be paid In equal monthly In.taIlments, In advance, on tho first day of
oach month. except that K tho Rent Commencement Dote Ia not on tho tlnll day of . calendar month, then that portion of
tho Marketing _ Charge which Is attrIbutebIo to tho days In that first partial calendar month .haIl be paid In advance
on the Rent Commencement Date.
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(c) Landlord may charge '>0, coala .nd axpan... of providing the M8n<aIIng Sarvtce In .ny calendar ~.r
against the budget tharafor. S.1d coala .nd axpan... m.y Include without limitation the loIIowtng:
(i) the sarvlcaa of . mart<ating d_ .nd .U stall .nd outaIda consultanta (Including pmtasaional
m.rt<.tlng sarvlce organization) daamad necasaary by Landlord to carry out affectlvely the markallng .nd public relations
objective of the Markallng Service, Including wllhout limitation .11 payroll, payroll taxes .nd employaa benefits of any such
dlractor end staff:
(II) such reasonable .mount of space wllhin the Landlord's Building .. may be necasaary to carry out
the Mert<aIIng Sarvlce, the rental tharafor to be coml*8b1e to the rental for slmHarty sized commercial space;
(III) all actual coala Incurred In advertising end promoting the Shopping Center, Including wllhout
limitation r.dlo, newspaper, television, direct and Indirect cosla of _, .rt work, copy, printing, paper, statlonary.nd
supplies: and
(Iv) such office equlpmant, utilllies .nd talephones as m.y be deemed necessary by the mart<aIIng
director.
(d) The mart<ating director and consultanta shall be under the .xeluslve control and supervision of Landlord,
and Landlord shall have the sole authority to employ and discharge them or either of them .nd the staff of the director.
(e) NotwIIhatandlng the .pportionment of amounta to the above-descrtbad marketing and edvertislng lunds as
set forth in both this ArtlcIe 9 .nd In SectIon (k) of the Fundamental Laaee Provlsiona, Landlord hereby _ the right
from time-to-time to a1_ the tolaI amount receIvad by Landlord lor such funda In any manner whatooever Landlord, In
Its sole dlscrallon, deems appropriate, so long as any and all such funda attributable to said marketing and advertising
funds .re used only to defray the coat of the mart<aIIng .nd advertising programs In_ by Landlord and to market,
advertise .nd promote the Shopping Center.
Section 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION.
In the avant there presently exists. merohanrs assoctatlon In use In the Shopplng Center, Tenant agrees that
Landlord shall have the unltaterel right to lake any steps required to terminate the same and to rapIace such merohanrs
association wIIh a marketing service, promotion fund, advertising fund, or any other slmH.. entity designated by L.ndlord In
which avant, upon notice to Ten.nt, Tenant shall automatically be deemad a member _ and shall contribute to th.
same the .mount which Tenant Immadllllaly prtor to such termination was required to contrIbuta to the merohanfs
assoclatIon. Further, Tenant does hereby Irrevocably assign to Landlord all of Tenanrs votlng rights contained In .ny
bylaw or other similar document fanning or governing the administration of any such merohanrs assoclatIon,
ARTICLE 10: CONSTRUCTION WORK
SectIon 10.01: APPROVALS AND STANDARDS.
T.nant shall not perfonn any conslruclton or make any alterations or changes In or to the Premises at .ny time
during the Term (herein sometimes collectively called'~ Wortc") without LandIord"s prtor wrlllen consent In
no avant shall Tenant make or cause to be made .ny penetration through any roof, floor or exterior or corridor wall without
the prtor wrlllen consent of Landlord. Ten.nt shall be directly responsible for .ny and all dam_, Including, without
limitation, dam_ to Landlord's Building, the Premises .nd the premises of other tenanta In Landlord's Bulding resulting
from any of Tenanrs Conotruction Work, whether or not Landlord's consent _ was _. Any.nd all
Conslruclton Work which Ia consented to by L.ndlord shall be performad In accordance wIIh (a) pi... end specifications
prepared by a licensed .rchitect, or .ngi..... .nd .pproved In writing by the Landlord before the commencement of the
Construction Work, (b) all necesaary governmental approvals and permlta, which approvals and permlta Tenant shall
obtain at Ita sole expense, and (c) .11 appI_ laws, nJies, regulations and buDding codes relating thareto. All
Construction Wort< _ conform to Landlord's Store Design CtItarI. and shall be performed in . good .nd workmanllk.
m.nner .nd dHlgently prosecuted to complatlon to the end that the Premloao shall at all times be a complete unll except
during the period of the Conalruclton Work. Any Construction Work performad by Tenant without Landlord's consent shall
be returned to Ita original condition at Tenanrs expense upon request by Landlord. Tenant shall perform any Conslruclton
Work In such . manner es not to obstruct the accesa to the premises of any other oocupent to the Enclosed Mall nor
obstruct other Common Areas.
Section 10.02: INSURANCE AND RECONsmUCTION.
In the 8'1enl Tenant shall perform any pennlttad or required Construction Work, none of the Conatruc:tlon Work
need be Insured by Landlord under such Insurence as Landlord may carry upon the L.andIord's Buildtng nor shall Landlord
be required under any provisions of this L.... relating to reconstruction of the Praml... to reconstruct or reinstall .ny
such Construction Work.
ARTICLE 11: INDEMNITY AND INSURANCE
SectIon 11.01: TENANrS INSURANCE.
(.) Tenant further covenants and _ that from .nd _ the date of delivery of the Preml... from
Landlord to Tenant, Tenant will carry.nd maintain, .tlls sole cost and expense, the following types of Insuronce, In the
.mounts specified and In the lonn herelnofter provided for:
(I) Comm_1 Gen.- UablIIly lnou......... Commercial generot liability insurance covertng the
Premls.. and Ten.nrs use thereof against cIolms for .peraonel and advertising injury" and "badDy Injury" or death,
'properly d.m_" .nd 'productIcomplatad operotlons. liability (II the _ terms .. deIInad In such policy)
occulTIng upon, In or.bout the Preml... and Tenanh activities In the Common Area, such Insurance to afford protection
to the Ilmll of not 1888 than $3,000,000 regardlass of the number of perwons cIolmlng injuries or cIam_ arising out of .ny
on. occurrence. The Insurance coverage required under this SectIon 11.01 (s)(l) shall, In addition, extend to any liability of
ADIllorenlT_,oIl<..teo..(JepItaICIly-FIn.1
March 4, 2005 \ V""",ntlJTF 18
Tenanlarislng out of the IndamnnlaB pi'ovldad for In SectIon 11.03. Therefora, such,..,J1ey ohaIl not contain any exclusion
for contractual liability coverage for any of the for8golng ~. The ganeraI __te IImlls under the liability
insurance polley or poIlc1e8 must apply separately to the Promises and to Tananrs use _. The certlfk:ata of
insurance evidencing the commercial general liability form of poIlclaB shall specify on the face _ that the limits of
such poIlc1as apply s~ to the Preml....
(II) Boll.... Boller and mochlnery Insurance In adaquate amounts on .11 fired objects and other fired
pressure vessels and systems II8<Vlng the Premises (W sny); and W the said objects and the dam_ thet may be ceused
by them or result from them .-e not covered by Tenants special form coverage Insurance, then such Insurance shall be in
an amount not laBs than $250,000 end be Issued on a replacement cost besls,
(iii) Ten_ l...hoId Improvements and Property. Insurance covering aU of the Items included in
Tenant's leasehold Improvements, heeling, ven\Hatlng and air conditioning aqutpment and all other Improvements and
beIIennents installed by (or demised by this Leese to) Tenant, end all trade fixtures, merchandise and personal property
from tima to tima in, on or upon the Promises, and a_ns, addlllons or chenges mede by Tenant pursuant to ArtIcle
10, in an amount not laBs ther ona hundred percent (100%) of theb' full replacement cost from time to time during the
Tenn, providing special form coverage, Including but not limited to, protection against the pertls Included with the standard
state form of fire and bmed form extended coverage Insurance polley, together with Insurance egolnst sprinkler dam_,
vandalism and malicious mischief. Any polley proceeda from such Insurance shall be held In trust by Tenant's Insurance
company for the rapeb', reconstruction end _lion or replacement of the property damaged or destroyed unless this
Lease shell cease end terminate under the provisions of ArtIcle 12.
(Iv) Wotbra. Companulton And I!mployWI L_IIty. WOIker.' Compenaatlon and Employers
Liability Insurance affording statutory coverage and containing statutory IImlls with the Employsrs Liability portion thereof to
have minimum limits 01$1,000,000.00.
(v) BUlln_ InlemIptIon lnouronce. Business Interruption Insurance aqual to not laBs then ftfty
percenl (50%) of the estimated gross earnings (as defined In the standard state form of business interruption Insurance
policy) of Tenant at the Promises which insurance shell be issued on an "all risks. basis (Ollis aqulvalent).
(b) All policies of Insurance provided for In SecIIon 11.01(a) shall be ISlUed by Insurance companlaB with a
financial rating of not less then A VII as rated In the most current aV1llleble "BMt'1 /nou....... Reporto", and qualified to
do business In the state In which Landlord's Building Is located. Tenant's obligation to pmvIde the Insurance cover_
specified In Section 11.01 (a)(l) above shall not be affected by any deductible with respect to such polley or self Insurance
retention maintained by Tenant. Each and every such polley, except for WOIkera' Compenaatlon and Employ8<$ Liability
insurance:
(i) shall be issued in the name of Tenant and shall name as an additi0nai Insured each of Landlord,
Agent and any other partles In Interest from time to time daslgnated In wrIIIng by notice from Landlord to Tenant;
(II) shell be for the mulualand joint benefit and protection of Landlord and Tenanland any such other
parties in Interest;
(ill) shall (or a certificate _ shall) be delivered to eech of Landlord and any such other parties In
interest within thirty (30) days prior to the expiration of eech such polley, and, .. often es any such policy shall expire or
terminate. Renewal or additi0nai poIlc1e8 shell be procured and malnlalned by Tenant In like manner and to like extent;
(Iv) shall contain a provIston that the Insurer will give to Landlord and such other parties In Interest at
least thirty (30) days notice In wrIIIng In advance of any m_ change, cancellation, termination or lapee, or the affec\lve
date of any reduction In the amounts of Insurance;
(v) shall be wrIIIen as a primary policy which does not contribute to and Is not In excess of coverage
which Landlord may carry; and
(vi) shall contsln a provtBion \hat Landlord and allY such other partles in Interesl, although named as
an addnlonal Insured, shall nev_ be entitled to reco_ undar said poIlc1as for any loss occasioned to n, its
servants, _nts and employeeo by reason of the negligence of Tenant.
(c) Any Insurance provided for In SectIon 11.01(a) may be maintained by means of a polley or policies of
blanket insurance, covering addltionalltems or ~1on8 or Insured., provided, however, that:
(I) Landlord and any other parties In Interest from time to time designated by Landlord to Tenant shall
be namad as an additional Insured thereunder as lis Interest may appear;
(ii) the coverage afforded Landlord and eny such other parties In Interest will not be reduced or
diminished by reason of the use of such blanket polley of Insurance;
(III) any such polley or poIlc1e8 [except any covering the risks referred to In SectIon 11.01 (a)(l)] shall
specify theraln (01 Tenant shall furnish Landlord with a wrIIIen statement from the Insurers under such policy specifying)
the amount of the toIaIlnsurance allocated to the Tenanrs Improvements and property more specifically detailed In SecIIon
11.01(a)(lIi); and
(Iv) the requirements set forth in this ArtIcle 11 are otharwise satlsfted,
(d) Tenant agrees to pemln Landlord at all reasonable times to Inspect the poIlc1e8 of insurance of Tenant
with respect to the Promises for which poIlclaB or coplaB thareof are not delivered to Landlord.
Section 11.02: LANDLORD'S INSURANCE.
(a) Landlon:l .haIl at all times during the Term carry and maintain the _ng types of Insurance in the
amounts specified and In the fonT1 hereinafter provided for:
(I) Comm_ _ L1....11ty lnou..nee. Commercial generelllablllty Il1IUI8nce _Inst claims
for property dam_ and bodily Injury 01 death. such Insurance to afford protection to the limn of not laBs then $5,000,000
In respect to property dam_, Injury or death to any number of persons arising out of any one OCCUITenC8.
(II) L.andlord'l RMI ond "....on." Propllty. Insurance covering the Landlord's Building [exclusive
of any tenant Improvements and betterments and property required to be Insured by Tenant pursuant to Section
11.01(a)(III)] In an amount not less then one hundred percent (100%) of full replacement cost (exclusive of the cost of
excavation., foundations and footings), from ~me to ~me during the Tenn, providing P'-' agaInsl perlls Included
within tha standard state form of special form covarage Insurance polley, together with Insurance egolnst sprinklar
damage, vandatlsm and malicious mischief, and BUch other risks 81 Landlord may from time to time determine and with
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any such deducllble& ..landlord mayliom lIm. to lIm. determine.
(III) Rentl...u........ Rent Insurance with respect to the premises of the tenants In the Shopping
Center ~ a_ at a coat whlclIl.andIold In Its aoIe judgment deems _., agelnalloos of rents In an aggregate
amount equal to not more then tMnly-four (24) times the sum of (I) the monthly requirement of Minimum Rent of such
tenants, plus (II) the average monthly amount esllmeted from time to time by Landlord to be payable by such tenants as
P.rcen. R.nt and .. Additional Rent pursuant to their I......
(b) Arrt inlurance provided for In S8cllon l1.02(a) may be malntelned by means of a policy or poIlcia& of
blanket insurance, covering additional ~ems or locations OIlnsurads provided that the requlremen18 of S8cllon 11 ,02(a)
are otherwise satisfied.
(c) Tenant shall have no rIghl8 In any policy 01 poIlcia& maintained by Landlord and &hall not be antIIIad 10 be
namad an Insured _liller, by reason of payment, as part of the CAM Sum of Il8 share of Landlord's premiums fOl the
Insurance provldad for In this. S8cti0n 11.02 01 otherwise.
SectIon 11.03: INDEMNIFICA110N BY TENANT.
Tenant_ th.t Landlord shall not be liable fOl any damage OIllablllty of any kind 01 for any Injury to 01 death of
persons or damage to property of T.nant 01 any other paraon durtng the Term, for any cauaa whatsoever (lnctudlng
_limitation the acto or omissions of Landlord 01 Agent, bursting pipes and smoka) by raaoon of the construction,
us., occupancy 01 enjoym.nt of the Pnlmlses by T.nent or any paraon theraln or holding under Tenant or happening upon
or about the Premises .nd Tenant for the purpoeas of IhIa SectIon 11.03 shall be _mad to be In exclusive control of the
Premises durtng the Term, Tenant does hereby agree to and shall prol8Cl, defend, Indemnify.-.d lI8V8 hanni_landlord
and Agent from all claims, actions, demands, coals and axpansao and IIabltIty whatsoever, including _ a1tomay's
fees, on account of any such real or c:IaImad avant damage or liability, .nd from all llana, claims end demands artslng
from (a) any OCCUIT8M8 In, or about the Premises, endIor (b) Tenant's actIvl1lao In the Common _, and/or (c) arising
oul of the c:onstrucIIon, uaa, occupancy or enjoyment of the Premises, and/or (d) oocaaionad In _ or In part by any act
or omission of Tenant, Its agents, contraclonl, HMInts, employees or _, __ of where occurring, Tenant
further _ that the obI~ to defend Landlord and Agent conIlnu8I ~ of ~.. of negllganca or other
fault on the part of l.andIon:I or Agent until such negllganca or tau~ haI been _Iohad In a final edjudlcatlon. Tenant
shall not, however, be 1_ for damage or injury OCC8IIoned by the wtIIful act ct the l.andIon:I whlclI Is the cause of
damage or Injury unless Tenant Is required by this ~aase to assume or insure agaInat such damage or Injury. Tenant's
obligations under the _ Indemnity shall not be limited to the amount ct commercial generai IIabHIty Insurance
CO'Iaraga which Tenant Is required to carry,
Sactlon 11.04: MUTUAL WAIVERS.
Landlord and Tenant hereby waive any righls each may have agelnst the other on account of any loss or damage
occasioned to landlord or T.nant, as the C888 may be, thait reepactIv8 property, the Pnlmlses, Its contents or to the other
portions of Landlord's Buldlng, arising from any risk covered by spacial form c:overage Inouranoe, and to the extent of
recovaoy under vaIkI and coIIacIIbIa poIIcIas of such Insurance, provided that such waiver does not Inv8IIdate such poIlcia&
or prohlb~ recovery _nder. The parties hereto each, on _ of thair raspectIv8 Insurance compenles Insurtng the
property of _Landlord or Tenent agelnst any such loss, waive any rtgh\ of subroge1lol, lhalsuch lnau""" may have
agelnst ~andlord or Tenant, as the case may be.
Section 11.05: COMPlIANCE WITH INSURANCE AND GOVERNMI!NTAL REQUIREMENTS.
Subject to Landlord's obllgallons In SectIon 13.01 to maintain the structure of the Premises, Tenant_ at 118
own .xpense to comply with all Governmantal Requirements as MIl as tha recomm.ndatIons and requlram.nls, with
respact to the Premises, or Il8 us. or occupancy. of the Insurance u_ or Insurance rating bureau or any slmUar
public or privata body end any governmantal .uthorIty havtng Jurtsdk:tlon with respect to the use or occupancy of
~andlord's Building, Including, but not limited to, Installation of fire axtlngulshers or automatic _, suppression
systems and/or IIla-saIaty systems, any changes, modlflcatlons or a1boatlo.lI in the _ and/or suppression systems
or addlltonal detectors .nd/or spnnkler heads or the location of partIltons, trade flxturas, or other contents of the Premises.
Landlord shall not materially change the dimensions of the _ or materially aII8Ct lICCll8S to the Preml_ from the
~andlord's Building unless required to m.... any such changes by reason of any fadaral, state or local envtronm.ntal or
other law, rul., regulation, guideline, Judgment or order.
Sactlon 11.H: EFFECT ON LANDLORD'S INSURANCE.
Tenant shall not do or suff.r to be dona, or keap or suffer to be k.pt, anything In, upon or about the Preml...
which will contravene LandlO<d's poticIas lnaurtng agelnslloss or damage by fire or other _s, or whlcl1 will prevent
~andlord from procuring such poIlcia8 In companies accaptabIa to Landlord at regular rates or whlcl1 will In any WI)' cause
.n Increa..ln the Insurance rates for any portton of the Shopping Canter, ~ Tenant violates any p<ahIbIlton provldad for In
the firsl sentence of this SectIon 11.06, Landlord may, wiIhouI notice to Tenant, corract the sem. at Tenanfs _se.
T.nant shall pay to Landlord as AddIlton8I Rent forlhwIlh upon demand the amount of any I~ In the premiums for
Insurance resulting from any violation of the fIral sentanoe of this SectIon 11.06, ...., ~ Landlord shaN have consantad to
the doing of or the keeping of anything on the Preml... which constllutad such a violation (but payment of such Add~1ona1
R.ntshall not entItI. Tenant to vIoIat.the proviSions of the first sentanoe of thls SaclIon 11.06).
Section 11.07: LIMIT OF LAND~ORD'S RESPONSIBILITY.
~andlord shall not be responslbl. or llabl. to T.nant for any 1011 or demage that may be occasioned by or through
the acts or omISSIons of parsons occupying space adjoining the Premises or any other par1 of the Shopping Canter or
~andlord's Building, or for any loss or damage resulting to the Tenant or Il8 property from burdng, ~ or leaking of
water, gas, s_ or stearn pipes or other utility lines or for any damage or loss of property within the Premises from any
cause whatsoever. Such IImllatlon of rasponslblllty end IIabNIty _ not, _, apply to landlord's willful acts or
negligent omissions, excapt to the ext.nt the same are waived or _oed by Tenant pursuant to SectIons 11.03 or 11.04.
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ARTICLE 12: DAMAGE OR DESTRUCTION
_12.01: LANDLORD'S DUTY TO RECONSTRUCT.
In the event the Landlord'. Building Is d.maged or destroyed by .ny of the rl.ks referred to in SectIon 11.02(.)(11)
_Inst which Landlord Is obligated to procure in.urenoo, Landlord .hall (.ubject to being _ to obt8In .11 .-sary
pennits .nd .pptOV.... _, including without IImlt8tlon permits .nd spproY8i. reqund from .ny agency or body
admlnlsterlng environmental 1lIws, rules or reguletlons), within one hundred twenty (120) days _ soch clemBge or
destruction (unless Landlord termlnale8 this la8H pursuant to SectIon 12.03), comm.- to: (.) repelr or reconstruct
Landlord'. Bulldlng and (b) repair or reconstruct the .tructural floor slab, deml8lng wall .tuds (without drywall) and roof (or
floor .lab above) as the case may be of the Premises. Landlord shell prooeou\e lII.uch ___ dlllgenlly to completion. In
no event .hall Landlord be liable for interruption to T ....or. bu.l"",," or for clemBge to or repair or reconstruction of any of
those things which Tenant Is required to Insure pursuant to SectIon 11.01 (a)(III), nor .haII Landlord be requited to expand
mora for any repelr or reconstruction pursuant to thl. SectIon thon tho net amount of Insurance proceed. actually received
by Landlord and alloceble to tho Premise. on a square foot bul..
Section 12.02: TENAN'MI DUTY TO RECONSTRUCT.
n any Item which T....nt I. required to Insure pursuant to SectIon 11.01(a)(lII) Ia damaged or destroyed by flre or
other casualty, Tanant .heIl (.ubject to being able to obtain all -..y permits IInd approvola therefor, Including without
lImllatlon permits and approvala required from any agency or body admlnlsterlng environmental 1lIws, rules IInd
regulation.), within _ (15) days after I.andlord has subetanllolly repeIred or recons_ Landlord'. Building IInd tho
portion of tho Premises Landlord Is obligated to repair or reconstruct purauant to SectIon 12.01 (unless Landlord
termlnaleo this La8se pursuant to SectIon 12.03), commenoo to repair or reconstruct soch damaged or destroyed Item. to
at least .ubo\entlally tho sama condition In which thoy -.. prior to soch damage or destruction IInd prosecute the same
diligently to completion.
SKtion 12.03: LANDLORD'S RIGHT TO TERMINATE.
(aj Landlord shall hava tho option to terminate this L_ upon giving written notIca to Tanant of the exercise
thereof within one hundred twenly (120) days _ tho Landlord'. BuBdlng I. clemaged or destroyed n:
(I) tho Prem"'eo are re_ wholly unfit for canylng on tho Tenanr. bu.lnes. after damBge to or
clestructJon thereof from any C8U88; or
(II) Landlord'. Building Is clemaged or deotroyed a. a reoutt of any flood, BBrthquake, act of war,
nuclear reaction, nucle8r radiation or redlOactlve COnlIImlnation, or from any other risk not covered by Insurenoo which
Landlord Is obligated to procure pursuant to SectIon 11.02(a)(II); or
(m) any clemBge to or destruction of Landlord'. Building occurs within tho last three (3) Years of tha
Tonn or In any Partial Year at tho IInd of the Tonn; or
(Iv) fifty percent (50%) or mora of tho GLA In tho Landlord's Building Immediately prior to the d.mBge
or dastructlon Is rendered unfit for ClIf1yIng on bualneo. therein; or
(v) Landlord'. Building Is .0 substantially damaged that tt Is reaaonabIy necesaary, In Landlord's
judgment, to demolish the same for tho purpoee of reconstruction.
(b) Unless .0 terminated, this Leue .hall continue In full force IInd eIfect, IInd Landlord and Tensnt .hall
perform their respective obI\gallons under SectIon 12.01 and 12.02. Upon any termination of this La8se under any of the
provl.1ons of this SectIon 12.03, tho Rent .heIl be adju.ted eo of tho data of .uch terrn_ IInd tho pertles .haII be
released from all liability hereunder upon tho .Urrender of poe_lon of tho Premises to tho Landlord, axcopt for Item.
which have been !her_a accrued IInd ara then unpeld.
Section 12.04: ABATEMENT Of' RENT.
n thl. Leue Ia not terminated by Landlord pursu.nt to SectIon 12.03 _ clemBge or deslructlon of tho Landlord'.
Building, and n the Premises are rendered wholly or partially unfit for carrying on Tenant'. busInesa by .uch demBge or
dastructlon, then tho Minimum Rent IInd tho Additi0nai Rent payable by Tenant under this ~ .haII be abaled, and the
applicable Break PoInIlInd _ Year Break PoInI (as tho case may be) shall be reduced In direct proportion to tho
percentage of tho GLA In tho Premises which I. rendered unfit for thet pertod from tho date the Premises _ so rendered
unfit until the earlier of .Ixty (80) days _ Landlord _Ivers poesession of tho Premises to Tenant or the date Tenant
reopens for buslnes..
ARTICLE 13: MAINTENANCE OF PREMISES
_Ion 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE.
Landlord wltl keep the roof, exterior face of s....1ce corridor walls, .tructural columns IInd .tructural floor or floors
which enclose tho Premises (excluding floor cover1ngs, .uch eo ..".ung, \emlZm IInd _ ~ flooring, walls
installed at tho requeot aI Tenant, doonI, windows and glass) In good repair. NoIwlthstandlng the ~ng provisions aI
thl. 5ectIon 13,01, Landlord.heII not In anyway be 11_ to Tenant unles. T....nt __ gillen Landlord written notIca
of \he necessity for .uch repairs and Landlord falls to commenoe making soch rapan within a _ pertod
thereafter, and provided that any damBge _lIallng such repairs shall not have -. caused by tho omission,
negl~ or willful act aI Tenant, its concesslonaIres, _, _, em,*,-, 1Ioen._ or "",,,,...,\or. or by \he
failure of Tenant to perfonn any of Its obligations under this La8se (In either of which _ Tenant .haIl be responalble
therefor) or have been caused to any of the Item. Tenant Is requited to Insure pulSUll/l\ to ArtIcle 11. LandIord.haII be
under no liability for repair, maintenance, 81le1etJon, Improvement, reconstruction, .- or en)' other action with respect
to the Premises or any part _, or any plumbing, electrical, heeling, ventilating, air conditioning, or _ mechonlcel
installatlon therein, except as may be expressly set forth In this L....,
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Section 13.02: TENAIlT'Il DUTY TO MAINTAIN PREMISES.
Tenant wtII at all times, from and after d61Nery of pijNeoalon of the Premloee to Tenant, at Its own coot and
expense. maintain and make all n_ repairs, and do all _ work to or for the Premises and every part thereof to
render the same In good and tenantable condition. Tenant's obllgation unde< thIa SectIon 13.02 shall incIllde, but not be
limited 10, repairing, replacing and otherwise maintaining Itsms as are required by any ~_I agency having
jur1sdlCtion thereof <_ the seme Ia ordln8l)' or extraordinary. foreseen or ""II. ueen), WIll. <_ than the exterior
lace of service corridor wall.), ceHlngo. plate gIau. utility meterl. p/peo and conduits outelde the Premises which are
in.talled by or demioed to Tenant or which exclusively serve the Premloee, all flxIures. he8lIng, ventilating and elr
conditioning equipment 1_ by or demlaed 10 or uoed IOieIy by T..-m, II eny (_ oucI1 _ng ventilating and air
conditioning equipment Ia located In.ide the Premia.., _ the ceiling and the roof or on the roof of Landlord'.
Building). .prtnkler equipment and _ equlpmenl within the Premloee. the stanlftont or sl<llalloola. ell of Tenant's signa,
security grill.. or .lmBar _urea. locI<I end closing devices, and ell window seah, casement or frame., docn and door
fram..; provided that Tenant,1haJ1 make no adjustment, alleration or repair of any part of any sprinkler, life aafety or other
datection or .uppres.1on .yotem In or aervlng the Premloee without Landlord'. prior approval. Tenant .hall permll no
waste, damage or Injury 10 the Premises and Tenant .halllnlUate and carry out a 0I0ll'8Il1 of regular repair and _
maintenance of the Premises. including the paInIIng or refinishing of all.... of the _ and the storefront as approved
by Landlord, so sa to Impede, to the extent _Ible, deterioration by ordln8l)' wear and _ and \0 keep the same In
attractive condition. Tenant will not overIoed the electrical wiring or _ .yotem. aervIng the Premises or wilhIn the
Premi.... and wIllln.taU at Its expense, but only after obtaining Landlord'. wrttIen approval. any additional _I wtr1ng
or other lIems which may be required in connection with Tenant'. epparatu.,
Section 13.03: RIGHT TO ACCESS TO THE PREMISES.
Landlord and Its authorized representaUve may enter the Preml_ at any and all times during u.ual bu.ln..s
hours for the purpose of In.pacllng the same (and at all_ tim.. In the caoe of emergency). Tenant further agrees that
Landlord may from time 10 time go upon the Premla8l and make any addition.. alteration.. repalra or replacements and do
other work to the Premla8l or to any utIIltieo, .ystem. or equipment located In, above or unde< the Preml_ which
Landlord may deem _ry or deIIrabIe to comply with all governmental requirements ancIIor reoommandatlon. of an
in.urance rating bureau or of any .Imllar public or prtvete body or that Landlord may deem neceosary or d..lrable to
prevent waste or deterioration In connection with the Preml_ II the Tenant _ not make or C8I.II8 oucI1 addlllona,
alleratlon., repairs or _ work to be made or performed promptly after receipt of written demand ftorn Landlord,
Nothing herein contained .halllmply any duty on the part of Landlord to do any oucI1 work which unde< any provfalon of this
Lea.ethat Tenant may be required to do, nor .hall II conatitute a waiver of Tenanr. delauft In faIIng to do the oeme. In
the event Landlord perform. or causea any oucI1 work to be performed, Tenant .hall pay the coat thereof to Landlord a.
Additional Rent upon demand therefor. In addition. Landlord may ""'taU. use, repair or re~ any and all malertal., tool.
and equipment. and pipes, ducts. conduits. columna, fou_na, foolIngo, _ and _ mec:hanIcaI equipment serving
other portion.. tenants and occupants of Landlord'. Building In, through, under or above the Preml_ that Landlord
deems d..lrable therefor. without the same conllltutlng an actual or conotnJctive eviction of Tenant. Landlord may also
enter tha Premise. at ell tim.. during u.ual bu.ln... hours for the purpoae of .howIng the Prem_ to proapactIve
purchaaera. m~ and tenants. No exerclsa by Landlord of any rlghll provided In SectIon 13.01 or 13,03 .hall
entllle Tenant \0 any damage for any Inconvenience, disturbance, Ioaa of bu.lneaa or other damage to Tenant occa.loned
thereby nor to any abatement of Rent
Section 13.04: CONFUCTS.
To the extent, II any, that !hare may be any confIlcI_ this ArtIcIa 13 and ArtIcle 12, or between thl. Article
13 and Article 22. Article 12, II applicable, or Article 22, II appllcabla, .hall prevail,
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01: TENANT'S PROPERTY; REMOVAL
Any Irada flxIure.. .Igna, coun~, .haIving. Invento<y, Ihowcasea, mlrronl, and _ peraonal property of Tenant
not permanently aIIIxad 10 the Prem_ .haD remain the property of Tenant. Tenant .hall have the right, provided Tenant
i. not In default unde< thIa Leaae, at any time and from time to lime during the Term, \0 remove any and all of Its peroonal
property which II may have .tored or InataUed In the Preml_. ~ Tenant Is In deraull unde< lhIa Leeoe, Landlord .haU have
the right to take exclusive OO8....lon of BUell property and to use oucI1 property without rent or charge, and lAndlord.
whether or not II takea po.....lon of .uch property, .hall have the beneIII of any lien thenlon I*"'IIted under the 1_ of
the .tate In which Landlord'. Building Ia _ and. II .uch oo8....1on Is taken or oucI1llen I. lIIHIfad by Landlord In any
manner. Including but not limited 10 opetatlon of law, Tenant .hall not remove or permll the I'lIIIIOVlII of said Irada fixtures.
.igna or other petIOnal property until .uch OO8_lon I. rellnqullhed or the lien Is removed, .. tha case may be. Nothing
In thl. ArtIcIa ahaII be deemed or conaInJed to permll or allow Tenant to remove any of .uch peraonal property prior to the
end of tha Term without the Immediate replacement thereof with .imHar penonal property of comparable or _ quality.
or _.e render the Preml_ unauitable for the continued conduct of Tenanrs I*"'IIted _ thereof. Tenant at Its
expenae .halllmmedlalely repair and otherwise maka good any damage occaaIoned to the Premises or Shopping Center
by reason of lnatellatlon or removal of any .uch penoonaI property u_ .uell demage Ia cauoed by Landlord pul1luant to
SectIon 13.03 and II Tenant lalla 10 remove .uell Item. ftorn the Premla8l prior to oucI1 expiration or termination. or II this
Leaae I. terminated by Landlord and Tenant taU. to remove .uch Item. ftorn the Prem_ prior to the effective dele of
.uch termination, then In any oucI1 event all oucI1 penoonaI property shall lheraupon become the property of Lanc:IIonl.
without further act by either party hereto, unleal Landlord __ to requlra all or a portion of oucI1ltem. 10 be removed by
Tenant In which case Tenant .haIl prompl1y remove the Item. dellgnated by Landlord and reetore the PremIa8l to Its prior
condttmn at Tenant's expenee.
SectIon 14.02: IMPROVEMENTS TO PREMISES.
All Im_entl made 10 the Preml.e. by Tenant, Including, but not limited to, the Item. fIlmlahad pursuant to
Tenanrs Work, alteration., changes and addition. by Tenant light flxIures, floor cover1ngo and partltIona. heating,
AO_tTwlatPrelzeIeo..cepltaIClty-Flnal
March 4. 2005 \ VanaanllJTJ' 22
ventllallng and a1r-<:ondltlon1ng equlp.:i.nt, mechanlcel Ind plumbing equipment, bul exclucllng _ _ Ind signs
Ind other peI10neI ~.pecIIIed In Sectlon 14.01, .heIl _I the ~ 0/ lIndlord upon expIretlon or ..~Ier
termlnetlon 0/ this ~; provided, _, th8t L8ndIor<I m.y designlte by _n notice to Tenon!. prior to Tenonr.
mlklng .uch 8I1er8tlons, those 8I1er8tlons, ch8nges, and eddltlon. made In the Premises after the Rent Commencem.nt
Olt. which shaH be remOYld by Tenlnt II the expir8lion or termlnetion of thlt ~, In which """"' TenenI shell II
Tenlnr. sol. cost Ind expen.. promptly remove the semI and repe~ Ind _ make good the dam_ to the
Premises caused by such removel or by the Install8llon 0/ .uch _llIons, changes or additions.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
SectIon 15.01: PROHIBITED.
Tlnlnt shIll not perm" Inyone other then T.nent to occupy the Premises or any part thereof Ind shell not
transfer, 1..lgn, .ublet, entar Into license or concesslon or other occupancy or u.. agreements or mortgage or
hypothecata thla ~ or the T.nenr. I_t In Ind to the le8H or the Premises or Iny part_ (herein collectively
referred to IS "T.......) without first _nlng In each Ind fIV81Y Instance the prior wrIttan consent 0/ landlord which
lIndlord mlY withhold In Its soil dlsaetlon. Any lIIlamptad Transfer without such prior wrItlen consent .haIl be In EVlnt
of Default, shell not be binding upon landlord, shall confer no rtghts upon Iny third person and shell not relieve T.nlnt 0/
Its obligations under thl. L..... Any lrIInsfer by merger, conoolld8tlon, Ilquld8llon or _ by oper8lIon 0/ low,
including, but not Ilmltad to, In ...lgnm.nt for the benefit 01 crecIIIo<s, .. well .. _ transfer, llSSignment, or
hypothec8llon of.ny .tock or general partnership Intarestln T.nant so .. to I'88Ylt In I chenge 01 the control thereof, shell
be Included In the term -r....._ for the pu_ of this L.... end .haH be I violation 01 this Section 15.01 and an
Event of DeIau", except.. _ .p.clflcelly set forth In this Article 15. Consent by lIndlord to Iny Transfer .hell not
con.tJtuta I waiver 0/ the necesslly for .uch consent to any subsequent Transfer, In the """"' 0/ a permitted Transfer,
Tenant _ _sl.s. to and .heII remain fully liable for the full pIffonnance 01 each and fIV81Y obIig8llon under this
Lease to be parformed by Tenant and the 8SSignM shall be deemed to have 8SSumed, Ind egreed to be bound by III 01
the tann. of this le8H, In the """"' of any proposed Transfer, Tenant aheII deliver to lIndIord _ notice (the
'R""u'" NoUce.) requesting lIndlord's consent to the proposed T_ It _t thirty (30) days prior to the dill on
which, with lIndlord's prior wrIttan consenL the Transfer would be efIectIve. The Request NotIce shall contain, without
Iimltatlon, It l_t: (I) the fuillde,,1lIlc8lIon 0/ the proposed tran_; (II) the most I'8C8OlI\nllnclal .tatam.nts Ind other
Ivldlnce 0/ the transferee's financial ....ponslbUlly Ind bu.lneaa performance; (III) the trln_'. proposed .pecIflc use
and busln8u proposed to be conducted at the Pnlmlses; (Iv) the scop8 0/ Iny proposed IIItar81Ions to the .torefront oIlnd
within the Premia..; Ind (v) the monetary Ind non-monetary term. and condltlona 0/ the proposed Transfer, lIndIord
shall hIve the ~ght Ind option (the -r_ OptIon.). exan:is8ble by landlord giving Tenont _ notice wIlhin thirty
(30) dlYS _ lIndlord's _pt 0/ the Requoot Notice oI_uiring the Pnlmlses or portion _ which i. tI18 subject
01 the proposed Transfer Ind terminating this ~ with ....pecl_. W landlord _ not to exercise the Tlka-back
Option and _ to give lIndIord's wrIttan consent to the proposed Transfer, then T.nent shaH pay to Londtord forthwith
upon Tenlnr. receipt, I. Additional Rent. all sums and other economic cons_ (_ by lump sum paym.nt or
otherwise) received by Tenontln any month e. a fMU" of the T_ _ denoml_ rerQIs or otherwise which
exceed, in the eggreg8le, the total sums which TlInInt Is obIlgetad to pay and _ pay L8ndIord under this L.... In the
same month (prorated to reflect obllgallons a1locabl. to th8t portion 01 the Premises which Is the subject 01 the Transfer).
III without effecting or reducing Iny other oblig8llon 01 Tenant hereunder provided, th8t In the C8S8 0/ en 8SSlgnment 01
this LeIse .uch Addltlon8l Rent payment by Tenent to Lendlord shall equet the entIra conslder8llon for such 8SSlgnment.
W Landlord gives l.andIord'a _n consent to the proposed Transfer Ind the Transfer Is not made (Including without
limitation, delivery 01 _.Ion by Tenant to and occupancy by the proposed trln.f.... approved by lIndlord) within
thirty (30) days _ the data lIndlord gives Its _n consent to the proposed Transfer, then l.andIord'. _ consent
Ind the Transfer .hell be lutoml_1y null, void Ind 0/ no force or effect whetaoever. The Teka-back OptIon shall not be
.xhau.ted by eny one exercise _ by lIndlord but .haH be ex_ from tIm. to Um. and .. olIen as there Is .
proposed Transfer. The Tak_ Option may be .- by Iny 888Ignee 01 lIndIord's right, tltIe and I..-tln thl.
Lease or any other _ which It the time 01 the Request NotIce Is L8ndtord under thls~. W _ receipt of the
Request NotIce lIndIord _Is eddltlon8l a- further 1nIorm-'lon which L8ndtord I'8MOI1IIbIy requlraa to consider the
proposed Transfer, TenenI.haIl deliver such 1nIonn-'lon to Landlord upon Landlord's request "-'or Ind the period for
Llndlord to exercise the Tlkeback OptIon sh811 be .xtanded by the number 01 days _ landlord'. requoot for Ind
lIndlord's receipt 0/ such eddltlon8l or further Informotion. Tenent .heIl pay to lIndlord the sum of Five Hundred
($500.00) DoIla" to defray lIndIord's administrative. coals, ~ Ind counsel _ In ~n with the
consideration, review and document p<eperation 0/ any proposed 8SSignment or subleltlng, such sum to be paid II the
time Tenant dellv... the 8SSlgnment and ...umption agreement executed by the..~ end ..algnor.
ARTICLE 16: DEFAULTS BY TENANT
Section 11.01: EVENTS OF DEFAULT.
This L.... Is mad. upon the condition th8t Tenont shall punctually Ind faithfully perform Ind fulflll III of the
covenants, condltlons end agreem.nts by ft to be perIonned .. In this ~ sallorth. In addition to events elsawhere
stated In thl. ~ as E_ts 0/ DeIeu". the following shell be deemed to be an Event 0/ DeIeu" (each of which Is
som8llm.s referred to.. en "Evant 01 Default" In this Lease):
(a) the fallura by the Tenant to pay Minimum Rent India- Per<lentage Rent and/or _ Rent or any
In.tallment or yeer-end adJustm.nt _ W .ucnfallure conUnuet for ten (10) days _ wr1ttan notice thereof by
Landlord to Tenant; or
(b) the failure 01 T.nant to subm" Ita DesIgn DrawIngs on or beIcri the Dealgn DrawIngs Submission Oat. In
Iccordance with Sectlon 2.03(e) or commence Tenonr. wort< on or beIcri'the Cona\NctIOn Commencement Date In
accordlnce with the tenn. Ind condltlona 0/ SectIon 2.03(c); or
(e) the falure 01 Tenent to -" Its bu.lne.s to the public In the Preml... on a- prior to the dlta on which
T.nant 's required to -" Ita business to the public pU"Ulnt to the terms and conditions 0/ Section 2.04, or the failure to
AOI/I\onIntTwt~.~FInaI
Mardi 4. 2005 \ V_JTF 23
open the Prem_. or to keep the Preml_ open. on the doys and hours required oy this Lease. or W Tenant vacatas or
abandons the Premlsas; or
(d) the failure of Tenant to obaarva or perform any of the covenants. tarms or cond~lons set forth In Article 15
(relating to assignment and subletting); or
(e) the sale or removal of a substantial portion of Tenanfs property located In the Preml_ In a manner
which is outside the ordinary course of Tenant's business; or
(I)
hereof; or
the failure to maintain Invantoiy levels and employee staff In ecoordance with the provisions of Article 7
(g) repetition or continuation of eny failure to timely pay any Minimum Rent and/or Percentage Rent and/or
Additional Rent or other sums reserved hereunder or to timely report Gross SeIas as provided in SectIon 4.06 hereof
where such failure shall continue or be repeated for two (2) consacutiva months. or for a total of three (3) months in any
period of tweIva consacutiva months; or
(h) repetttion of any failure to observe or perform any of the Lease covenants, terms or conditions more than
three (3) timas,ln the aggregate. In any period of_va (12) consacutiva months; or
(I) eny other failure of Tenant to observe or perform any of the other covenants. tanns or conditions sat forth
In this Leasa where said feHure continues for e period of twenty (20) doys after written notloe _ from Lendlord to
Tenant (unlass such failure cannot reasonably be cured within twenty (20) deys and Tenant shall hava commencad to cure
said faHure within twenty (20) days and contlnuas dlllgentiy to pursue the curing of the same until completed); or
OJ the commencement of levy. execution. or attachment proceedings against Tenant or Guarantor (hereafter
defined) or a substantial portion of Tenanrs or Guarantors assets; the commencement of levy. execution. attachment or
other proces. of law upon. on or against the estate craeted In Tenant hereby; the application for or the appointment of a
liquidator. recelvar. custodian, sequestrator. conservator. trustee. or other .imllar Judicial oIIIcer for Tenant or Guarantor or
for all or any .ubstantlal pert of the property of Tenant or Guarantor (and .uch appolntment continues for a period of thirty
(30) days); the In.olvency of Tenant or Guarantor of Tenant In bankruptcy or equity _; any a..lgnment by Tenant or
Guarantor for the benaftt of creditors; or
(k) the commencement of a case by or against Tenant or Guarantor, under any Insolvency. bankruptcy.
cred~or adJu.tment or debtor rahabllltatlon laws. ._ or federel; or the determination by the Tenant or Guarantor to
request relief under any insolvency proceeding, Including any InsoIvancy. bankruptcy. a-edltor adju.tment or debtor
rehabHltation laws. state or federal, and In no event shall the Premises or Tenant's interest In this Lease become an 8Sset
in any such proceedings; or
(I) noIwithatandlng the Tenanr. obligation to pay Minimum Rent and/or Percentage Rent and/or Additional
Rent a. of the first day of each month during the Term, In the event that an Insolvency, banl<ruptcy or .Imllar proceeding I.
filed by or against the Tenant or any Guarantor. the Tenant .haIl be obligated to peyall .uch Minimum Rent and/or
Percentage Rent and/or Additional Rent on a ratable basis from the date of the commencement of any such proceeding
through the end of the month In which .uch proceeding I. commencad,
_on 18.02: LANDLORD'S REMEDIES.
(a) Landlord may treat any Event of Defau~ a. a material breech of this Leasa, Landlord'. failure to insl.t
upon strict perf",,"ance of eny covenant, term or cond~1on of thl. L_ or to exerc18e any right or remedy ~ has herein
shall not be deemed a waiver or relinquishment for the futura of such perf",,"ance, right or remedy. In addition to any and
all other rights or remedlas of Landlord In this L.... or at law or In equity provtdad, Landlord .hall have the foIlowtng rights
and remedlas W there .haIl occur any Evant of Defau~ none of which shall be construed as an eIaction to forego any of the
other remedies then or In the future:
(i) accaIarate the whole balance of Rent. and ell other sum. peyable hereunder by Tenant. for the
entire balance of the Term. or any pert of such Rent and other .um.; and/or
(II) to tannlnate this L..... and to re-enter the Prem_ and take _Ion thereof and to remove
all person. and contents therefrom, and Tenant shall have no further claim or right hereunder; and/or
(iii) to bring .u~ for the collection of Rent and for damaga. without entering into pas....1on of the
Premises or terminating this Lease; and/or
(Iv) to tannlnate Tensnrs right of _Ion of the Prem_ by summary proceeding. or otharwt.e.
without terminatlng this L..... In the event of any ......ntry and tannlnation of possaa.lon, Landlord .hall have the right
but not the obligation to remove eny personal property from the Premlsas and _ treat .uch property a. abandoned. or
at Landlord's option. place the same in .torage at a public warehousa at the sole cost. expenae and ri.k of the Tenant;
and/or
(v) to enter the Premlsas and without further demand or notloe proceed to distress and sale of the
goods. chattels. personal property and other contents there found and to levy the Rent, and Tenant .haIl pay all co.ts and
officers' commls.lons. Including watchmen's _ and sum. chargeable by Landlord. and further Including charges
which Landlord may Imposa by .tatute a. commi..lons to the __ or _ _ making the levy, and In .uch
ca_ all costs, ofIIcer8' commlaslons and other charges .hall Immediately attach and become part of the claim of
Landlord for Rent, and any tender of Rent without saki costs, comml8slone and charges made, after the Issuance of a
warrant of dlstre... .haIl not be .ufl\cIent to satisfy the claim of Landlord.
(b) Conf8ulon of Judament. R..... Tenant covananta and agrees that W there is an Event of Defaul~ then
Landlord may, without limitation. causa Judgmanta for money to be entared against Tenant and. for those purpo...,
Tenant hereby granta the following warrant of attorney: (i) Tenant hereby Irrevocably authorizes and em_ any
prothonotary. clerk of court, attomey of any court of record ond/or Landlord (as weltes someone actlng for Landlord) in any
and all action. commenced against Tenant for recovery of the Rent and/or other amounta to be pald to Landlord by Tenant
to appear for Tenant, and a..... damages and confess or otherwIsa enter Judgment agaIn.t Tonant. for all or any pert of
the Rent and/or other amounta to be pald to Landlord by Tenant Including. without limitation. .um. under Section 18.02(a).
ADHl8rentTwistPretzelCo.-CopltaIClty-Flnol
M8I<h 4. 2005 \ VoneontlJTF 24
together with I_~ caota and an ottOrneya' comml8llon of live percont (5%) of the lull amount of .uch Ren~ amounts
and .um., and th8t8Upon wr1I8 of exocutlon a. well IS 8It8chment may forthwith I..ua and be &erled, without any prior
notice, wrII or pIOCHCllng wh_ axcept a. may othtli"MH be roqulred by appllcebla I8w; (II) the WlrTlInt of attorney
herein granted shall not be exhausted by one or more exerci888 thereof but successive actIona may be commenced and
.ucce..ive judgmants may be confoued or oIherwIoe entered ogoln.t Tenant from time to time IS often IS any of the
Rent andlor other amounts and .um. .hell fall or be due or be In IIIT8lIrs, and this WlrTlInt of attorney may be exercised
after the termination or expiration of the Term andlor during or _ any exten.lon. of the Term or renewal. of thl. Lease;
and (III) the provisions of SectIon 16.02(d) are lnoorporated heretn by this reference thereto.
(c) Co~1on of Judament .. a----_Ion. Tenant covenants and agrees that tf there is an Event of
Default or thl. L.... I. terminated or the Term or any exten.lons or renewal. _I. terminated or the Term or any
exten.lon. or renewal. thereof I. terminated or explres, then, and In addition to the rtghI8 and remedies set forth In SectIon
16.02(b), Landlord may, wIthoutllmll8llon, ceuse Judgments In ejectment for posses.1on of the Premls.. to be entered
against Tenant and, for lhoa1' purposes. Tenant hereby grants the following WlrTlInt 01 attorney. (I) Tenant hereby
Irrevocably authorize. and empowers any prothonolaly. clerk of court, attorney of any court of record andlor Landlord (as
well a. .omeone acting for Landlord) In any and all llclionI commenced for recovery 01 _Ion of the Premises to
appear for Tenant and confess or oIherwIoe enter judgment In ejectment for possession of the Premises agaIn.t Tenant
and all person. c1almlng dlreclly or Indlreclly by, through or under Tenant. and thereupon wrII of po._lon may forthwtth
I..ue and be served, without any prior notice. wrII or pIOCHCllng wh_ except as may _se be roqulred by
applicable law; (II) W. for any reason _ the foregoing action or actions .hall have been commenced, II .hell be
determined thai pas....lon of the Preml... .hould remlin In or be reatored to Tenant. Landlord .hall heve the rtght to
commence one or more further action. IS hereinbefore set forth to recover possession of the Preml... Including. without
limitation, appearing for Tenant and confes.lng or olherwlae entering judgment for po_n of the Preml... a.
hereinbefore .et forth; and (III) the provl.lons of Section 16.02(d) are Incorporated heretn by thl. refetence thereto,
(d) In any action or pIOCHCllng described In SectIon 16.02(b) andlor Section 16.02(c), or In connection
therewith, W a copy of thl. Lea.e I. thareln vertIIed by Landlord or someone acting for Landlord to be a true and corract
copy of this Lea.e (and such copy shell be concIu.1veIy _umed to be true and COI11lCl by virtue of such vertfIcalion),
then II shell not be necessary to flle \he original of this Lea.e, any statute. rule 01 court of law. aJStom or practice to the
contrary notwIth.tandlng. Tenant hereby _ to Landlord. anyone acting for Landlord and aU attorneys who may
appear for Tenant all IITOrs In P/OCedure ~Ing the entry of judgment or judgments by confession or otherwise by
virtue of the WlrTlInts of attorney contained In this Lease. and all liability therefor. The right to enter judgmant or judgments
by confes.lon or otherwl.e by virtue of the worrants of attorney contained In this Lease and to enforce all of the other
provision. of this Lease may be exercised by any ...~ of Landlord's rtght, IItIe and Interest In thl. Lease In .uch
asstgnee's own name, any statute. rule of court or law, custom or practice to the contrary notwithstanding.
(e) Tenant expres.ly Wllves:
(I) The benefit of all laws, now or hereinafter In force. exempting any good. In the Premises or
el.ewhere from dl.tralnt. levy or .ale In any legal pIOCHCllngs taken by Landlord to enforce any rights under this L.....
(II) The benefit of all laws now mlde or which may hereafter be made ~Ing any IImll8llon as to
the goods upon which, or the time within which. distress Is to be made _ the removal of goods, and Tenant further
rellev.. Landlord of the obligation of proving or identifying .uch good.; It being the purpose and Intent of this provl.lon that
all good. of Tenant whether upon the Prem_ or not. .haIl be liable to distress for rent.
(III) The rtght to Is.ue a wrII of replevin for the recovery of any good. setzad under a dlstres. for Rent
or levy upon an execution for Rent. dam_ or otherwise.
(Iv) The right to dalay execution on any reel e.tate that may be levied upon to collect any amount
which may become due under the terms and condllion. of this L.... end any rtght to have the same appraised. The
Prothonotary or Clerk of Court I. hereby authorized and empowered by Tenant et Landlord'. Instance to enter a wrII of
execution or other process upon Tenanfs voluntary waiver and further agrees that said realeatate may be sold on a writ of
execution or other process.
(v) All rights under Act of AprIl 5. 1957, No 20 and all.upplements and amendments thereto, hereby
authorizing the sale of eny good. dl.tralned for rent at any time after .even (7) days from said dl.tralnt without any
appraisement and condemnation thereof.
(vi) The right to three (3) months andlor fifteen (15) or thirty (30) days' notice roqulred under certain
clrcum.tances. or any other notice roqulred or otherwise provided by .tatute IS a condllion to the commencement of
.ummary pIOCHCllnga or en action for posses.lon or to the termination of thl. L.... or any retaking of pas_Ion, Tenant
hereby agreeing thai the reapecllve notice periods provided for In thl. L.... shall be .ufflclentln any .uch case.
Section 16.03: DAMAGES.
(a) If Landlord elects to terminate Tenanrs right to pos....lon under this Lease. but not to terminate this
Lease, Landlord may relet the Preml... (or any part thereof) for the account of Tenant at such rental. end upon .uch
terms and conditions IS Landlord shall deem approprtete (which may be less than or exceed the belance of the Term),
and to the extent Landlord receives the Rent therefor. Landlord .haIl apply the same first to the payment of .uch expense.
as Landlord may have Incurred In recovering possession of the Premises (Including, without limitation. legal expenses and
attorneys' fees) and for putting the Prem_ Into good order and condllion and repelrtng or remodeling or altering the
same for relettlng, and any other expen.... commissions end charges peld. assumed or Incurred by or on beheW of
Landlord In connection with the relettlng of the Premises (collectively the "CMb of R_ng'). and then to the fulfillment
of the covenants of Tenant under thl. L..... Tenant shall pey to Landlord the Rent up to the time of such termination of
Tenents right to possession under this Lease, and thereafter. Tenant covenants to pay Landlord until the end of the Term
of thl. Lea.e the equivalent of the amount of Rent under this L.... I... the net avail. of such relettlng, W any. during the
same period, end the same .haIl be due end peyable by Tenant to Landlord on the deles .uch Rent I. due under this
Lea.e. Any relettlng by Landlord .hall not be construed as an election on the pert of the Landlord to terminate this L....
unless a notice of such Intention Is given by Landlord to Tenant. _.tandlng any relettlng without termination of this
Lea.e. Landlord may etany time thereafter aIecl to terminate this Lease. In any event. Landlord .hall not be liable for, nor
shall Tenents obligation. hereunder be dlmlnl.hed by reason of eny feDure by Landlord to .- the Preml... or eny failure
by Landlord to colleclany sum. due upon such reIettIng. Tenant.haIl not be entitled to any Renl_ by Landlord In
excess of Rent provided for In thl. Leese, Landlord may file .ull to recover any .um. falling due under the term. of thl.
sub8eclion from time to time. and no .u" or recovery of any portion due Landlord hereunder .haIl be a defense to any
AllItIerentTwIslPtelzeICo..capilalCIty-Fln.1
March 4. 2005 \ v.nsantlJTF 25
subsequent ectIon brought for any amount not theretofore reduced to Judgment In favoi of Landlord.
(b) W Landtord _ to tamlnate this LeaH Ino_ of terminating only Tenanfs right to possession,
Landlord shall have the right to Immediately recover against Tenant as damages for Ioas of the bargain, and not as a
penalty, the excess (Wany), as detennlned by Landlord, of (I) the present value of the projected Rent peyable by Tenant
under this Lease (as detennlned by Landlord on the balls of the amounts of Additional Rent which would have been
payable puBuant to this L_e for the full calender ~r prior to the calendar __ In which the _uIt occurred, Increasing
annually on the flrst of each year after such calender __ at the rate of six percent (8%) per annum compounded) that
would have accrued for the balance of the Tam plus any other amount necessary to compensate Landlord for all
detriments proximately caused by Tenaors failure to perform Its obligations under this LeaH, Including reasonable
attorney's fees and I_t on all sums due Landlord at the Defau~ Rata (_ defined), lass (II) the then present fair
market rental value of the Premises for the balance of the Tam as reasonably -.mIned by Landlord, taking Into account
among other things, the condition of the Prernlsas, market conditions and the period of time the Premises may remain
vacant before Landlord Is able to reIot the same to a suitable replacernent tenant, and the Costs of Reiottlng (as defined
above) that Landlord may lrieur In order to enter Into a replacement leesa r- of !he Barvaln Dam_.).
Notwithstanding anything to the contrary contained In this Lease, W, subsequent to the termination of this LeaH and the
recovery of damages from Tenant pursuant to this subsection (b), Landlord relats the Premises for an effective Rent
higher or lower than the Rent assumed for purpoees of calculating the Benefit of the Bargain Damages, the Benefit of the
Bargain Demages shall not be recalculated and Landlord shall bs entitled to retain all of the proceeds of such relottIng.
(c) The .DafauR Rata" means the rate of Interest which Is three percent (3%) over the announced prime rate
of PNC Bank, Philadelphia, Pennsylvania or any successor thereto or other bank salected by Landlord.
5ecllon 18.04: LANDLORD'S SELF.lfELP.
In addition to Landlord's rights to saif-heip set forth elsewhere In this Lease, W Tenant at any time falls to perfonn
any of Its obligations under this Lease In a manner reesonably satlsfllClory to Landlord, Landlord shell have the right, but
not the obligation, upon gMng Tenant at I_t three (3) days prior written notice of Its election to do 10 (in the event of any
emergency no prior notice shall ba reqUired) to perform such obligations on behlIIf of and for the account of Tenant and to
take all such action to perform such obligations, In such event, Landlord's costs and expenses Incurred therein shall be
paid for by Tenant as Additional Rent, forthwith, upon demand therefor, with Interest thereon from the date Landlord
perfonns such work at the Oefau~ Rata. The performance by Landlord of any such obligation shall not constitute a release
or watver of Tenant therefrom.
Section 18.05: LEGAL EXPENSES.
(a) In the event that Landlord should retain counaei and/or Institute any su~ against Tenant for violation of or
to enforce any of the covenants or conditions of this LeaH. or should Tenant Institute any ectIon against Landlord for
violation of any covenants or conditions of this Lease, or should alther party In8titute a su~ against the other for a
declaration of rights hereunder, or should either party Intervene In any su~ In which the other Is a party, to enfon:e or
protect Its Interests or rights hereunder, the prevailing party In any such su~ shall ba entltted to all Its costs, expanses end
reasonable fees to Its attomey(s) In connection therewith.
(b) In the event that a bankruptcy proceeding Is flied by or against Tenant under any chapter of the
Bankruptcy Code, or Tenent makes an assignment for the benefit of creditors or commences or otherwise becomas the
subject of eny Insolvency, receivership or similar proceeding, Landlord shall be entitled to recover Its reaaonebIe attorneys'
fsea and costs Incurred In or In connection with any such proceeding from Tenant or any trustee. custodian, _er.
assignee or other representative acting on Its behaW, all of which fees end expenaes shall constitute. In addition to any
other sums due and owing under this Lease (I) an obligation of Tenant hereunder, and (II) a component of any cure claim
assertable by Landlord under 11 U.S.C, S 365(b) of _se,
ARTICLE 17: LIABILITY OF LANDLORD
Section 17.01: LANDLORD.S DEFAULT.
Except as _se provided In this Lease, Landlord shell ba In defau~ under this Lease W Landlord falls to
perfonn any of Its obligations hereunder end said falure continues for a period of thirty (30) days _ wrttten notice
thereof from Tenant to Landlord (unless such falure cannot realOl18b/y ba cured within thirty (30) days end Landlord shell
have commenced to cure said failure within said thirty (30) days end continues diligently to pursue the curing of the same).
If Landlord shall be In -..~ under this Lease and, W, es e consequenoe of such -"It. Tenant shell recover e money
judgment agalnet Landlord, such judgment shllil be s_ only out of the proceeds of .... _ upon execution of
such judgment and levied thereon egalnst the right, title end 1_ of Landlord In the Shopping Center as the seme may
then be encumbered end Landlord shell not be liable for any deIIcIency. In no avenlshall Tenant have the right to levy
execution _Inst any property Of Landlord other than Landlord's right, title and I_t In the ShoppIng Canter as
hereinbefore expressly provided. No -..~ by Landlord under this Lease shell give Tenant the right to terminate this
Lease.
5ecllon 17.02: TRANSFER OF LANDLORD'S INlCREST.
In the event of the sale or other transfer of Landlord's right, title and i_t In the Premlsas or the Shopping
Center (exoepl In the case of a sale-leaseback flnanclng transaction In which Landlord Is the leesee), Landlord shall
transfer and assign to such purchaser or trans_ any portion of the Security Oepos~ which may then be held by
Landlord pursuant to Section 2.02 of this Lease, and Landlord thereupon and without further eel by either party hereto shall
be reieased from all liability end obligations hereunder derived from this LeaH erlslng out of any ect, occurrence or
omission relating to the Premises or this Lease occulTing _ the consummation of such sale or transfer. Tenant shall
have no right to tennlnate this Lease nor to _te Rent nor to deduct from nor set-off nor counterclaim _Inst Rent
because of any sale or transfer (Including without limitation any saJe.leasebacl<) by Landlord or Its gran_. successors or
assigns, Neither Landlord's mortgagee (or Its designes) nor the purchaser et a forecIoeure sale shell be liable to Tenant
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March 4. 2005 \ VsnsantlJTF 26
for the return of Tensnt. SecurIIy riepos~ unless .nd until Landlord actually dlllivers the Security ~It to such
mortgagee or purch.ser or their desigMe.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 18.01: SUBORDINATION OF LEASE.
Tenant .grees that except as heralnefter pIOVIded, thl. Lease I., and .hall .lways be, subject .nd subordln.te to
.ny le..e wherein Landlord I. the lessee and to the lien of .ny or all mortgagee or _ of INst, regardlee8 of whether
such lease, mortgages or deed. of tru.t now exl.t or m.y _ be created with regard to all or .ny part of the
Shopping Center, .nd to.ny.nd all edvances to be made thereunder, .nd to the Interest thereon, and all modlftcetions,
con.olld.tlon., ran_., replacements .nd exten.lon. thereof. Such subordination .haIl be eIfectIve without the
execution of .ny further In.trument. Tenant a100 agrees th8I .ny lessor, mortgages or INstee may elect to have thl.
Lease prior to .ny lease or lien of Ita m~ or deed of trust, and In the event of such election end upon notification by
such les.or, mortgagee or tru.tee to Tenant to that effect, thl. Lease .hall be deemed prior In lien to the said lease,
mortgege or deed of tru.t, whether thl. L...e I. dated prior to or subeequent to the d.t. of said I...., m~ or deed
of trust.
Section 18,02: TENANrS ATTORNMENT.
In th. event of eny foreclosure of, or the exercls. of. power of sale under, any mortgage or deed of tru.t referred
to In SectIon 18.01 covering the Premises or In tha .vent of the tennlnaUon of any lesse referred to In SectIon 18.Q1
wherein Landlord Is the lessee, Tenant, upon the purchaser or I..s""s requ..t, shall.ttom to.nd recognize the purch..er
or Landlord's lessor as Landlord under this Lease.
Section 18.03: INSTRUMENTS TO CARRY OUT INTENT,
Tenant _ that, upon the reque.t of Landlord, or .ny such I..sor, mortgages or trustee, Tenant sh.1I execute
.nd deliver whetever Instruments m.y be required for .uch purposes .nd to carTY out the Intent of this Artlcle 18, .nd In
the event Ten.nt f.lI. to do so WIthin fIIleen (15) days after dem.nd In writing, Tenant shall be deemed to h.ve commmed
.n Event of Deleult.
Any document executed by Tenant evtdenclng such subordlnatton shall provk:te that Landlord's mortgagee or such
purch.ser shall not be liable for .ny action or oml..lon of any prior I.ndlord (Including Landlord) under the Lease, subject
to .nyoff sets, cl.lm. or defenses which Tenant might h.ve against prior landlord (Including Landlord), bound by.ny Rent
which Tenant might have paid for more than the current month to .ny prior I.ndlord (Including Landlord), bound by eny
.mendment or modification of the Lease or .ny other agreement concerning the Lease made without mortgages'. written
consent or respon.lble In .ny way for any security depos~ which was delivered to Landlord but was not .ubsequently
delivered to such mortgages or purchaser.
ARTICLE 19: ESTOPPEL CERTIFICATES
Section 19.01: TENANrS AGREEMENT TO DELIVER,
From time to Ume within twenty (20) days after requ..tln writing therefor from Landlord, Tenant agrees to execute
.nd dllliver to Landlord, or to .uch other Iddreesee or .dd_ .. Landlord mey de.1gnate (end Landlord and any .uch
eddressee m.y rely thereon), . statement In writing In form .nd substance ..-ctory to Landlord (herein celled
"Tenant'. e.toppeI CerIIII_"), certifying as to such matters .. m.y be reasonably req_ted by Landlord. Ten.nt
expres.lyagrees th.t Landlord may ..sign Its Interest In the Tenant. Estoppel Certificate to Ita lender(s) at .ny time who
may act In m.-I reliance thereon.
Section 18,02: FAILURE OF TENANT TO PROVIDE.
In the event that Tenant fell. to provide . Tenant. Estoppel CertIfIcate within twenty (20) days after L.ndlord'.
written request therefor, Ten.nt .hall be deemed to h.ve commmed .n Event of DeI.u~.
ARTICLE 20: QUIET ENJOYMENT
Section 20.01: FAITHFUL PERFORMANCE,
Upon paymant by the Tenant of the Rent heraln pIOVIded for, and upon the _ence and perform.nce of .11 of
the agreements, COV8OIInts, tenn. .nd condition. on Tenant'. part to be _ and performed, Tenant .haIl _b1y
.nd quietly hold .nd enjoy the Premlse8 for the Tenn without hindrance or Interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord, .ubject, nevertheles., to the tenn. .nd cond~lon. of
this Lease, and mortgages, leases and other matters to which this leaH Is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21.01: DELIVERY AFTER TERM.
Ten.nt .h.1I deliver up .nd .urrender to Landlord poasesalon of the Premise. upon the explretlon or earlier
tennlnatlon of tha Tenn, broom clean, free of debris, In good order, condition .nd .tate of repair .nd In compliance with
Sactlon 14.01 (excepting Landlord'. obligation under thl. Lesse, dem_ by ca.ualty and ordinary weer.nd leer), and
.hall dllllver the keys to tha me~ment office of Landlord or to .uch other place .. may be designated from time to time
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by no\ICe from Lancllonl to T_nl. Knot aooner terminated.. hereln provlded, thle L_e shall termln8tll at the end of the
Term as provided for In AttIcIa 3 without the necessity at no\ICe from either Landlord or Tenant to terminate the sama.
Section 21.02: EFFECT OF HOI.DlNG OVER; RENT.
K Tanant or any party claiming under Tanant remains In possession of the Premises or any part _, after any
explretlon or termination of this Lease, no tenancy or Inlenlst In the Premises shall resuK therefrom but such holding CNer
shall be an unlawful _ and all such parties shall be subject to immediate ou_ and removal, and (a) Tenant shall
pay upon demand to Landlord for any period when Tenant shall hold the PremINs _ tha Term has terminated or
aXplred, as liquidated rent for such period, a sum equal to all Peroentage Rent and Addlllonal Rent provided for In this
Laase plus an amount computed at the rate at double the Minimum Rent for such period, and (b) Tenant shall Indemnify
and hold harmless Landlord from all 1018, cost, expense and liability whatsoever resulting from such holding over,
Including, without limiting the generality at the foregoing, any claims made by any suc<:aedlng tenant based on such
holding ovar.
ARTICLE 22: CONDEMNATION
Sec:lIon 22.01: ALl OF PREMISES TAKEN.
K the whole of the Premises shall be taken or condemned either permanenUy or temporarily for any public or
quasi-public use or PUIllOSl by any competent authoritY In appropriation proceedings or by any right of eminent domain or
by agreemant or conveyance In IIou _ (oach being herelnafter refen'ed to .. "CondemnMlon"), this L_e shall
terminate a. at the day posses.ion shall be takan by.uch authority, and Tenant shall pay Rent and perfonn all of Ita other
obligation. under thI. L.... up to that dete wtth a proportlonata refund by Landlord at any Rent a. .hall have been paid in
advance for a period subsequent to the date of the taking of pos....Ion.
Section 22.02: U:SS TlfAN ALL OF PREMISES TAKEN.
If I... than all but mora than twenty-flve percent (25%) of the GLA In the Premises Ie takan by Condemnation, or K
(regardIas. at the ~ at the GLA In the Premises which Is taken) the remainder at the Preml'" cannot be used
for the carrying on at Tenant'. busl"""., then In either event Landlord or Tenant .haH each have the right to terminate thl.
Lease upon no\ICe In wrtlIng to the other party within nInaIy (GO) days after _ion Ie 1aken by such Condemnation. K
this Lease IS 80 terminated, K shall terminate as of the day _ion shal1 be taken by such authoritY, and Tenant .hall
pay Rent and perform all of Ita obllg8tions under thl. L.... up to that data wtth a proclOI'\lonate refund by Landlord of any
Rent as may have been paid In advance for a period subsequent to the date of the taking of _ion. K thle Lease I.
not 80 terminated, K .hall terminate only wtth respect to the perta of the PremINs 80 taken II of the day of pos....ion
shall be taken by such authorIIy, and Tenant _hall pay Rent up to that day wtth a proporlloI.... refund by Landlord of any
Rent a. may have been paid for a period .ubsequent to the data at such taking and, thereafler, the Rent and the
applicable Break PoInt shall be reduced In direct proporllon to the amount of GlA of the Prem.... taken and Landlord
agrees, at Landlord'. cost and expensa, .. soon as rea80Nlbly posatIlIe to restore the PremIses on the land remalnlng to
a complete unK of .lmUar qullllty and character as exloted pr10r to .uch appropriation or taking (to the extant feaalble);
provided that Landlord _hall not be required to expend more on such restoration than an amount equal to the
condemnation award received by Landlord (I..s all expenses, coala, legal f_ and court cosla Incurred by Landlord In
connection wtth such award).
Sec:lIon 22.03: SHOPPING CENTER TAKEN.
K any part of the Shopping Center Ie takan by Condemnation .0 as to render, In Landlord'. judgmant, the
remainder unsultabla for u.. as an enclosed mall .hoppIng center, Landlord .hall have the right to terminate thl. Lease
upon notice In wrtlIng to Tenant wtlhln one hundred twenty (120) days _ po.....ion I. taken by ouch Condemnation. K
Landlord 80 terml_ this Lease, K shatI termln8tll .. of the day _Ion Ie taken by the condemning authority, and
Tenant .hall pay Rent and perform all of Ita other obIlglIIion. under thla Lease up to that date wtth a propor1Ionate refund
by Landlord of any Rent a. may have been paid In advance for a parlod subsequent to .uch _ion.
Sec:lIO" 22.04: OWNERSHIP OF AWNtD.
Aa batween Landlord and Tanant, all damages for any Condemnation of all or any part of Shopping Center.
Including, wlthout limitation, all damages as compensellon for dlmlnullon In value of the _, reveralon and fee, and
Tenant'. leasehold Improvements. shall belong to the Landlord wlthout any deduction therefrom for any present or future
estate of Tenant. and Tenant hereby auigns to Landlord all Ita right, title and 1_ to any.uch awwd. AI\hOUgh atI
damages In the event of any Condemnation ... to belong to the Landlord. whether .uch damage. are awarded a.
compan.atlon for dlm\nUllon In value of the _, reveralon or fee of the Prem..... or Tenant'. Iessehold
Improvements. Tenanl _hall have the right to claim and .- from the condemning euthority, but not from Landlord.
.uch compensation a. may be ..parately awarded or recoverable by Tenant In Tenanfl own right for or on account of any
co.t or expense which Tenant might Incur In removing Tenant'a merchandles, furniture and fixtures, provtded .uch
compen.allon does not In any way dlmlnleh the compensatiOn otharwlae available to Landlord,
ARTICLE 23: MISCELLANEOUS
Sectlo" 23.01: INTERPRETATION.
(aJ The captions, teble of contento and Index at defined term. appearing In this Lea.e are Inserted only as a
matter of convenience and In no way amplify, define, IImK. con.true, or describe the .COIlI or Intent of ouch Se<:tions of
this Lease nor In any way affect this Lease.
(b) K more than one person or COIllOlatiOn I. named .. Landlord or Tenant In thla Lease and exacutea the
same as .uch. or becomes Landlord or Tenant, then and In such event, the word. "Landlord" or....enant" wherever used In
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this Lease are Intended to refer to oil such peroona Or corporations, .nd the liabilItY' of such persons or corporations for
compliance with and perform.nce of all the terms, covenants .nd provisions of this Lease shall be joint .nd _I.
(c) The neuter, feml~lne or m.lIClIllne pronoun wIl.n used herein sh.II each Include each of the other
genders end the use of the singular shall Include the plural.
(d) The partlee hereto agree thet oil the provisions of this Lease .... to be construed as covenants end
agreemants as though the -.Is Importing such covenants .nd egreernents __ used In eech separate provision hereof,
Furthermore, each covenanL egreement, obIlgel1on end other provision contained In this L.... Is, and shall be deemed
and conslNed as a separate and Independent covenant of the party bound by, und_klng or make the sama, .nd not
dapandant on .ny other provision of this Lease unl..s expressly so provided.
(a) Although the provisions of this Lease __ drawn by Landlord, this Lea.. shall not be construed for or
against Landlord or Tenant, but this L.... sh.II be Interpreted In accordance with the genereltenor of the 1a_ In an
effort to reach the Intended resu~.
SectIon 23.02: RELATIONSIIIP OF PARTIES.
Nothing herein contained shall be deemed or conslNed by the parties _, or by any Ihlrd party, os creatlng the
relatlonshlp of principal and agant or of partnership or of joint venture between the parties _. ~ being understood .nd
.greed that neither the method of computation of Parcentaga RanI, nor .ny other provision contained hereln, nor any acts
of the p.rtles herein, shall be deemed to create any relationship _n the parties hereto other than the relationship of
landlord and tanant nor cause Landlord to be responslbie In .ny way for acts, dabts or obIlgel1ons of Tenant.
Section 23.03: NOTICES.
Any notice. demand. request, .pproval, conSent or other Instrument wIllch may be or Is required to be given under
this Lease shall be In writing, .nd, shall be deemed to have been given (.) when maled by United Stateo registered or
certified mall. return receipt reqU18led. postage _Id and received or refused by the addressee, or (b) when sant by
courier gu.rantying overnight delivery, addresoed to Landlord or Tenant .t the respective add....... set forth In the
Fundamental Lease Provislon8 and/or such other add_ or acIdresses as _ party may deeIgr1aIe by notice to the
other In accord.nce with this SectIon and _ or refused by the addressee. Any notice by the Landlord may be given
on its beh.W by Agent or by an attorney for Landlord or Agent, Any notice properly sent to Tenant shall be deemed
effective whether or not a copy Is sent to the address d18lgnated In the Fundamental L.... Provisions to receive a copy of
such notice,
Soctlon 23.04: SUCCESSORS.
This L.... and the covenants .nd conditions herein contained sh.11 Inure to the benefit of and be binding upon
(SUbject to Article 17) Landlord, its succeosora and 1SI1gns. and shaH be binding upon Tenant. its helnl, 8UCCI88OrS and
assigns and shall Inure to the benefit of Tenant and only such lSIigns of Tenant to whon1 the assignment by Tenant has
been consented to by Landlord In writing. Nothing In this SectIon 23.04 shall be deemed to require Landlord to give any
such consent All of TenanI's obIlgatIons during the Term pu....nt to SectIon 4,05, 4.06, 4.07, 5.01, 5.02, 7,03, 8,03,
11.03 and 23.17 shall survive the expiration or earlier termination of this Lease.
Section 23.05: BROKER'S COMMISSION.
Tanant wanants theL axcept for Agent. ~ has dea~ with no broker In connection with this Lease, and .- to and
shall defend, Indemnify and save Landlord hannl..s from .11 claims, ectIona. dam_. costs and _III and liability
whatsoever, Including reasonabIa attorneys' f_, thai may arise from any claim by or through Tanant for a commission,
finders or like fea In connection with this L..... Landlord shall pay the fee or commission due Agent In connection with
this Leass,
SoctIon 23.06: UNAVOIDABLE DELAYS.
In the event thet either party hereto shall be delayed or hindered In or prevented from the perform.nce of any act
required hereunder by """,on of strikes, lockouts, inability to procure labor or materl.ls, !lIlIu... of power, restrictive
govemmantallaws or ~Iatlons, riots, insurrection, war (whether actual or _), leeI< of _ to the Shopping
Center due to evacuatiOn; d.maga or govemmantal order, fire 01" _ casualty 01" other reason of a simler or dIoalmllar
nelure beyond the reasonabie control of the party delayed In performing wort< or dolng acts required under the terms of this
Lease, then perform.nce of such act. but not Tenant's obligation to pay Rant. shaH be excused for the period of the delay
and the period for the perform.nce of any such act shall be extended for . period equlv8lent to the period of such delay.
During Tenanrs ConstnJcllon Period the provisions of this SectIon 23.06 shall not operate to excuse Tanant from
completing constnJcllon of the PtenlI... within TenanI's ConstnJcllon Period unless Tenant gives wrlIten notice of tha
dalaylng event to Landlord within tan (10) days of the occurrence of such del.ylng event, SUch written notice shall specify
the natura of the delaying event .nd the number of days of delay claimed to resu~ tt...o!Iom. Tanant'. ConstnJcllon
Period shall be extended for a period equivatanl to the period of ~ delay. Aller the Rent Commencemant Date the
provisions of this SectIon 23.06 shaH not excuse Tenant from the prompt payment of Rent and all other sumsdu. by
Tenant under this Lease and such delay shall not extend the Term. Delays or falu.... to parfonn resultlng from lack of
funds or the unavailability of . partIcutar contractor or personnel sh.11 not be deemed delays beyond the reasonable control
ofaparty.
Soctlon 23.07: SEVERABILITY.
It Is the Intention of the parties hereto that W any provision of this Lease Is capable of two constructions. one of
which would render the provision \IWalld and the _ of _ -.Id render the provision vslld, than the provision shall
hava the meaning which renders ~ valid. W any term or provision. or any portion thereof, of this Lease. or the appllcallon
thereof to any parson or circumstances shall, to any extant, be Invalid or u_e, the remainder of this Lease, or the
application of such Ienn or provision to the persons or clrcumstences other than thooe as to which It Is held Invalid or
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March 4, 2005 \ VansantlJTF
29
'unenforceable, _ not be alIecIed thereby, and each \arm and provision of this Lease shan be valid and be enforced to
the fullest e><tent permltt8d by lew.
S_on 23.08: nME OF ESSENCE,
Time i. of the e..ence with respect to the performance of the respective obligations of Landlord and Tenant set
forth in this Lease.
Section 23.09: OTHER TENANTS; RELOCAnON OR TERMlNAnON,
(a) Landlord reserves the absolute right to effect .uch other tenancies In the Shopping Center as Landlord
.hell determine in the eJ<erclse of Its sole business judgment. Tenant hereby acllnowtedges that (I) this Leese contain. no
reslrk;t1ve covenants or exclusives In favor of Tenant; (II) this l.H8e shall not be dMmed or Interpreted to contain, by
Impllcatlon or oth_, any warranty, ~ or agreemant on the part of Landlord that any departmant store or
regtonaI or national chain store or SlIy other marchant shall open for business or occupy or continue to occupy any
preml... in or edjolnlng the Shopping Center during the Term or SlIy pert thareof or that Tenant shall generate a certain
amount of Gf'OOll Salas or that any relmburaable amount peyabla by Tenant shall be any spaclftc amount, and Tenant
hereby expressly _ all claims with respeel thereto and acknowledges that Tenant Is not relying on any.uch WlIITlInty,
representation or agreement by Landlord either as a matter of Inducement In entering Into this Laase or as condition of this
Lease or as a covenant by Landlord.
(b) Durtng the Term or any renewals or e><tension thereof, Landlord may expand, renovate, remerchandl.e or
otherwise change the .Ize or confIguratton of the Shopping Center or Landlord'. Building and In connection therewith
Landlord may requlra that Tenant .urrender _.Ion of all or a porIIon of the Premises elIher temporarily or
pennanantiy. Accordingly, Landlord reservas tha right In such even~ In Landlord's sole and absolute dlllCAltion, to either (I)
offer to amend this Lease to (a) maka changes resulting from any alteration In Tenant'. GLA resulting from an altenttlon In
the.1ze or .hape of the Premises andJor (b) retocate Tenant to other comparable preml... within the Shopping Center on
the same terms and conditions as thoBe contained In this Lease, either on a temporary besle or for the balance of the
Term, or (II) terminate this Lease In exchange for paytng Tenant en amount equal to tha unamolllzed net cost to Tenant of
Its leasehold Improvements In the Premls.., which unamortized net cost shall be calcu'-led using a straight line
amortization .chedule and an amortlzetton period equal to the Rent Tenn pius any pravtously exercised renewal options
afforded by thl. Leaae. Landlord shall exercise Its right .et forth In this SectIon upon prior written notice to Tenant
("Landlord" N_.) which shall .pecIfy whether Landlord _ to amend this l.H8e and W so, Include tha proposed
lease amendmenI or to terminate the same. Tenant shall deliver to Landlord within ten (10) daya after Landlord's Notice
Indicating Landlord's dealre to terminate this Leese, reasonably _lied evidence substantiating Tenant's unamortized net
co.t of Its laasehOld Improvements to the Premises end Landlord shall have the right to verify the accuracy thereof.
Landlord reserve. the right to rescind Landlord'. Notice of termlnatton within ten (10) daya after receipt of Tenant'.
evidence .ubetentlatlng Tenanf. unamortized net cost of ItS leasehold Improvements to the Preml... and may In lieu of
terminating the same, elect to relocate Tenant to other comparable Preml... In lICCOI1lance with the provl.lons of (b)
above. Any proposed amendment to the Leese .haIl afford Tenant at lessl .Ixty (80) deys after the date of Landlord'.
Nottoe before Tenant shall be required to .u!T8nder possession of any portion of \he Preml_ and/or relocate. In the
event Landlord _ to terminate this Lesse, .uch notice .haIl provide thet .uch termination shall not be effective for at
lea.t .Ixty (80) days after the date of Tonant's receipt of Landlord's NotIce. In the event Tenant _ to execute .uch
amendment, n .hall do so within fifteen (15) daya following Its receipt of the same and W Tenant fall. to do so, Landlord
.hall have the further right at any time thereafter to terminate this Leaae In accordance with the provIalons of (Ii) above.
Tenant .hall vacate the Premises end surrender po.....lon thereof to Landlord not later than the date specllled In
Landlord'. NotIce end In accon:lance with \he terms of this Leese. Landlord will pay Tenant Its unamortized net co.t of
Tanent's leasehold Improvements to the Premises within ton (10) days after Tenant vacates the Premises. Tenant agrees
that the execution of the lease amendment or Its receipt of the payment of the con.lderatlon for the laase termination In
eccordance with (II) above shall be Tenanl'. .oIe remedy In the event Tenant Is required to su!T8nder pos....ion of the
Preml.es a. provided in thl. SectIon.
Landlord _ thet an aneratlons to the Premise. nece.sltated by the expansion, renovation or other change to
the Shopping Center referred to In this SectIon will be perfonned by Landlord at Its .00e cost and expense Including, W
Tenant elects to execute the Ieese amendment referred to above which provides for a permanent relocation of the
Premises, the con.tructlon of Improvements to any relocated premises deslgnaled by Landlord such thet .uch relocated
premises will be comparable in flnish to the Premises demised hereby as they existed Immedlately prior to Tenant'.
vacating lhe seme. In the event Tenant is required to temporarlly relocate, Tenant .haIl accept the reloceled premises "a.
I.. and Landlord shall not be required to perform any WOIk therein. In addlllon, Landlord wll relmburae Tenant for Its
reasonable and .ube\anlleted expenses IncuITlld In moving from the Premises originally demised hereby to the reloceted
preml... (and returning to the original Preml_, W appl_) which relmburaement shall be m_ within fOrty-five (45)
days following Tenant'. subml..1on of Tonanfs documented expenses. In the event Tenant Is requIrad to only .ummder a
portion of the Premises to Landlord, but Is able to operate In the remainder thereof, Rent shall abete on a proportionate
basis from the date Tenant surrenders to Landlord possession of the portion of the Premises so affected.
Section 23.10: APPLICABLE LAW,
The laws of the state In which Landlord'. Building Is located shall govern the validity, performance and
enforcement of this Lease, W either party In._ legal .UIt or action for enforcement of any obligation contained herein,
It I. agreed that venue for .uch .ull or action .haIl be In the stele In which the Premis.. are located.
Section 23.11: WAIVER.
(a) The waiver by Landlord of. any term, covenant, agreement or condition herein contained shall not be
deemed to be a waiver of any .ubsequent _ of the same or any other terms, covenant, agreement or condition herein
contained. Tha .ubsequent acceptance of Rent hereunder by Landtord .hall not be dMmed to be a waiver of SlIy
preceding breach by Tenant of any tenn, covenant, agreement or condition of this Lease, other than the failure of Tenant
to pey the per1Icular Rent so acc:epIed, ~ess of Landlord's knowledge of .uch precedtng breach at the time of
acceptance of SUCh Rent. No covenant, term, agreement or condition of this Laase shall be dMmed to have been waived
by Landlord, unles. such waiver be In writing and executed by Landlord.
AIlIIIerentTwIsIP_eo.-capnaICIty-Flnal
March 4, 2005 \ VanoenllJTF 30
(b) No waiver of any covenan~ term. agreement or condition of this Lease or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord In respect to one
or more tenants or occupants of Landlord's Building or any other part of the Shopping Center _ conslltute a waiver In
favor of any other tenant. Landlord's conaent to. or approval of. any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecasaary Landlord's consent to or approyel of any subsequent similar
act by Tenant. No consent or approval by Landlord shall operate to change any condition. requirement or other provision
of this Lease on any occasion unl... made In _ng and axacuted by a general partner (or executive officer) of Landlord,
Section 23.12: ACCORD AND SATISFACTION.
No payment by Tenant or receipt by Landlord of a lesser amount then the Rent h....1n stipulated shall be deemed
to be other than on account of the eertlest stlpuleted Rent nor shall any endorsement or .-ment on any check or any
letter accompanying any IUcI\ check or payment 88 Rent or the like be deemed an accord and satlsf8ctIon, and Landlord
may accept such check or payment wtthout prejudlca to Landlord's rights and remedies to recover the balance of such
Rent or pursue any other right and remedy provlded for In this L.... or avalleble at law or In equity. If Landlord shall dlract
Tenant to pay Rent to a .Iockbox' or other depository whereby checks lesued In payment of Rent are Initially cashed or
depos~ed by a person or entity other than Landlord (albeit on Landlord's authority) then. for any and all purposes under
this Lease: (a) Landlord shall not be deemed to have eccepted such payment until ninety (110) days after the date on which
Landlord shall have actually received such funds. (b) Landlord shall be deemed to have accepted such payment If (and
only if) within said ninety (110) day period. Landlord shall not have refunded (or attempted to refund) such payment to
Tenant and (c) Landlord shall not be bound by any endorsement or stetement on eny check or any letter accompanying
any check or payment and no such endorsement. statement or letter shall be deemed an accord and satisfaction.
Landlord or Landlord's benk may accept such check or payment without prejudice to Landlord's rtght to recover the
balance of such rent or punlue any other remedy provided In this L..... aI law or In equity. Nothing contained In the
Immediately preceding sentence shall be construed to place Tenant In _u~ of Tenanrs obllge\lon to pay Rent If and for
so long as Tenant shall timely pay the Rent required pUnlusnt to thia L....ln tha manner designated by Landlord.
_on 23.13: CORPORATE TENANTS.
In the event tha Tenant hereunder ia a corporatlon. the persons executing this Leese on behalf of the Tenant
hareby covenant and walTllnt that: \he Tenant ia a dUly con_ corporation quellfted to do business In the state In which
Landlord's Building Is located; all Teneors franchiae. COI....lG end _lienable _ have been pald to date; all Mure
forms, reports, fees and other documen18 necasaary for Tenant to comply with applicable laws will be flied by Tanant when
due; and such persons are duly a"- by the governing body of such corp.ullon to execute and deliver this Lease
(Including the walTllnt and/or power of ettomay provisions contained In Saction 18.02) on behalf of \he corporation.
_on 23.14: TENANTS GUARANTOR.
Deleted.
Section 23.15: RECORDING.
ThiS Leaae shall not be recorded; however Landlord shall have the rtght to record a short form or memorandum
thereof. at Landlord's expense, at any time during the term hereof, and Tenant shall axacute same.
Section 23.18: AGENT OF LANDLORD.
Agent has acted 88 an agent of Landlord In connection with \he execution of this L.... and shall not In any event
be held liable to the Landlord or to Tenant for the fulfillment or non-fulflllment of any of the terms or conditions of this
Lease or for any action or proceeding that may be taken by Landlord against Tenant. or by Tenent -">ot Landlord. Any
waiver of Landlord's liability hereunder, Including any waiver of subl'ogatJon rights, shall apply with equal foroe and effect
to. and 88 a waiver of any liability of, Agent.
Section 23.17: HAZARDOUS MATERIAL.
(a) As used herein \he term 'hamd_ ...-al' means any flammable, axpIoslve. medical, human or
animal tissues or substances. hazardous or toxic subetance, material or waste (including, wIIhout limitation. 88bestos and
Chlorofluorocarbons) which has been, or In the future Is. deWmlned by any stete. federal or local governmental authority or
any law. ordinance, staMe. governmental NIe or regulation to be capable of posing a risk of Injury to health, safety or
property and/or the use. storage and/or dlspooal of which Is regutllled by any govern_ authority, including. without
IImltallon, a" of those materials end substances designated 88 hllZllrdoua or toxic by \he local government having
Jurisdiction over the Premlsas, the U.S. Environmental -.. Agency. the Consumer ProducII Safety Commission, the
Food and Drug Admlntstratlon or eny other governmental _ now or _ a"- to regulate metertals and
substance. Tenant shall not causa or perm~ any hazardous material to be Installed In the Pramlsas 88 e part of Tananrs
Work or oth_ brought upon, used. kapt. stored or dlepoeed of In or about the Premlsas or \he Shopping Center by
Tanant. Its agents. employees. conll'8Clor8 or 1nvItees. NotwIIhatandlng the foregoing, Tenant may handle, store. use and
dispose of producta containing omall quantltleo of hIIZlIrdoua m_s (such as _ cans containing 1n8ecl1cideo, toner
for copiers, paints. vamiahes and cleaning supplies) of Inslgnlflcant quantltleo 8tored In sealed contaInero and used In
accordance with manufacturers' requlremen\8.
(b) If the Praml..., any equlpmant (Including, wIIhout limitation. HVAC equipment), trade fIxtu.... or other
mechanical apparatus therein contain any hazardous ma_s Installed by Tenant, 1\8 agents. employees, contractors or
Invl_, Landlord, at 1\8 e1action, shall have the right to (I) cause Tenant to remove and properly dispose of same, all at
Tenaors sole cost and expensa, In accordance with applicable law and m..... and m_ approved In advance by
Landlord and 1\8 profeoolonel consultants, and Landlord shell have the rtght to monitor such work or (II) perform the
removal and dlspooal thereof _. In which event Tenant shall comply with all __ requlremento Impooad by
Landlord with respect to the performance of such work, Including wtthout limitation c10alng the Premlsas for 0001_0 and
remaining closed during the performance of such work. and Tenant shall reimburse Landlord, on demand, for the COlt
ADIfferontTwlstPretzoICo.-<:apJtaICIty-Flnol
March 4, 2005 \ Van88ntlJTF
31
incurred by Landlonlln performing suell removal (Including Landlord's cost of pt'Ofesslonal consultants).
(c) Tenant shall:
(I) Promptly provIcIe Landlord with copies of any document, correspondence.
report or communlcetlon, 'M'itlen or oral, relating to hazardous materiels
at or atlectlng the Shopping Center (x) to or from any regulatory body, or
(y) sta~ng a b801s for .ny potenllal liobIllty or I88ponolblllty of Tonan!,
L.ndlord, or the Shopping Center; Including 811 ouch documents,
c:orrespondence, reports or communlc8llono prepared by or on _ of
Ten.nt. In eddltton to the .bove, II Landlord's request, Tenanl sholl
provIcIe coplea of .ny .nd 811 records and communlcatlons whaIooevor
reI.~ng to hazardous m8l8rl.ls II or _ng the Shopping Center.
(II)' Immediately notify Landlord In the even! of . ouspocted or confirmed
- of . hozardous m8l8rle1 or violation of envlronmentallawo .t or
_ng the Shopping Centar and CluOld by or reI_ to the operat/ono
of Tenant, Ilo employeeo, con_, -"18, or .ny porty dng on
beh8W of Tenant and, 81 Landlord's solo option, _ promptly remedl.te
or conocI such rei.... or violation to Landlord's _ or reimburse
Landlord's cool of remediation (including reooonable lIllomeyo' .nd
conoullonts' fees) all es set forth In (b) 8bove; .nd compenoote Landlord
.ndlor thl1d port188 for .11 resultant d.mogo.
(IU) Permll Landtord re880nable 8CC88S to the Premls.. for the purpose of
conducting .n envlronmenl8l .udll or teollng, the cool of wI1lch sholl be
borne by Landlord unleoo the reoullo Indicate 8CI1vtty prohibited by
environmental laws or hereunder.
(d) In lCCOrd.nce with the Occupotlon.1 S8f8ty .nd He8Ith Administration Asbestos Rule (11l95), 59 Fed.
Reg, 40964, .s amended .nd supplemented ("OSHA Aa_ Rule"), Landlord hereby _ Ten.nl of the presence
or possible presence of .sbestos containing m.terials ("ACMo") .nd/or presumed ..besloo conl8lnlng m_s
('PACMo") (.s ouch terms ore defined In the OSHA Asbestos Rule) within the Prem_ or edjoinlng enclosed common
.reas, W .ny. The ACMs .nd PACMs moy take the form of pipe Wl'8p, vlnyl.s_ flooring, spreyed on or trowted on fire
proofing, 8COU8tlcol plaster, Insulation, textured ceiling point and other forms. Tho specific location of any ACMs or
PACMs within the Prem_ or edjoinlng Common Areos m.y be ascertained by Tenant reques~ng In wrttlng from
Landlord, without coot or expense 10 Tonan!, the .ppllc8ble portions of .ny envlronmentallmp8CI SUIV8y conducl8d by
Landlord regarding the Shopping Centar. The purpo.. of Landlord's noIIfIcatIon Is to m.ke Tenant, Ilo -"la, employees
and con_ _ of the presence or possible presence of ACMs end/or PACMs In the Shopping Center In order to
avoid or minimize any damogo to or dlsturb.nce of such ACMs and/or PACMo during the progress of Tonant's Work
.ndlor Construction Work. Tenant sholl obtain. signed acknowtedgment from Ilo egents, employeeo .nd conlr8ctoro
~ng In or .bout the Prem_ Indlc8ling th.t ouch ogonlo, .mployeeo and conlr8ctoro ore 8W8r8 of the _ or
possible presence of ACMe .nd/or PACMe within the Shopping Center and ogreelng not to disturb the same during the
performance of Tenant's Work snd/or Construction Work, At Landlord's requesl, Ten.n! sh8l1 deliver to L.ndlord coplea
of such signed acknowledgments.
(e) Tenant sh.1I comply with .11 oppllc8ble Govommental Requlremenlo _ng the Prom_, the opet'at/on
of Ten.nt's business .t the Prem_, .nd the use .nd remov.1 of.ny substances therefrom, Including, without Ilmllallon,
hozardous m.lerIeIo In$talled by Tenant, Ilo -"la, employees, contractoro or Invtl_. Such compll8nc8 sholl Include,
Inter .lIa; (I) the filing by Tenant of .11 govemm.n181 .pp1lc8tJons and registrallons for 811 substances uOld, stored,
manuf8Clured, genereted or oIherwIo8 In the Proml...: (II) the obtolnlng of 011 licensee .nd permllo with respect thereto:
(III) the ~moly filing from ~me to ~me, .s requlrecl, of.1I reports .nd other m8llero requlrecl to be flied with govemmenl8l
authorities hIVing JurlsdlctJon: .nd (Iv) notifying eoch of Ilo egents, employees .nd con_ of the presence or
presumed presence of ACMs .nd PACMs within the Shopping Center .s set forth .bove.
(f) Tonant sholl proIect, defend, Indemnify .nd hold Landlord harmless of, from .nd _Insl .11 claims,
8CII0n0, liens, dem.nds, cceto, domogeo, punlllve d.mogeo, e-,..., fines .nd Judgments (Including leg8I cosio .nd
lIllomeyo f_) Incurred by reooon of any 8Clu81 or ....rted follure of Tenanl to fully comply with the provIaIono of this
SecIIon 23.17 andIor spHIs or other contamination of .Ir, soil, or woter by or resulting from .ny hoz8rdous m8l8rlols
Installed by Tenant, Ilo egents, employeeo, contractors or Invltees II or around the Prem_ or the Shopping Center or
resulting from removal thereof.
(g) Upon tan (10) d.ys prior 'M'itlen requesl from Landlord, Tenant sholl execute, ocknowledge.nd deliver 10
Landlord. wrttlen sl8lement In form oatIofactory to Landlord certifying (I) W true, that Ten.n! hoa not dlopceed of .ny 011,
greose, toxic, or hozardous m_, II the Prom_ or (II) that .ny such substances used, pI'IlC8IS8d or genereted .1 the
Proml... hove been disposed of properly In lCCOrd.nce with .11 .pp1lc8b1e Govommenl8l Requirements. W Tenant Is
unable to certify _ of the .bove, Tenant sh.1I1O notify L.ndlord and give Landlord the _lis resul~ng In Tenant's
Inability to 10 certify.
(h) Ten.nt sholl surrender the Proml... to Landlord upon the expiration or eorIler termination of this L..se
free of hozardous m.terials brought thereon by Tenant.nd those acting on Ilo beholf.nd In . condltton wI1lch compiles
with .11 Govommental Requlremenla, recommend.tJons of consullonts hlrecl by L.ndlord, .nd such other r..sonable
requirements .s moy be Imposed by Landlord,
(I) This SecIIon sholl survive lho explrollon or sooner lermlnlllon of this L.....
_Ion 23.18: FINALlZAnON OF CHARGES.
Notwithstanding .nythlng to the contrary contelned In this L...., Tonant's foIlure to object to .ny statem.nL
Involc8 or bllllng rendered by Landlord within. period of one hundred eighty (180) doyo _ receipt _ sholl constitute
ADItIorontTwIolPl8tzeICo..(:opIloICity-Flnsl
Us"'" 4, 2005 \ V.nsonllJTF 32
'Tenant's acquiescence with respect _ and shall render such statement, Invok:e or billing a flnal and binding account
stated _ Landlorll and Tenant. Landlord and Tenant Intend that the foregoing provision shall supenede any right to
aOOU or request beck up documentation 110m Landlord which may otherwise be provided by thls Laesa and the foregoing
provisions are not Intended to grant any such ~ghtto Tenent not otherwise expressly provided In this L......
Section 23.19: PRIOR LEASE.
Deleted,
SectIon 23.20: FINANCIAL INFORMATION.
Tenant shall at any time and from time to time within twenty (20) days of written request 110m Landlord, deliver to
Landlord such flnanclallnformatlon concerning Tenant, Guarantor and Tenant's and Guarantor's business operattons as
may be requestad by LandlorQ. any mortgagee or prospective mortgagee or purchaser or prospective purchaser.
Sectton 23.21: SPRINKLER CHARGE.
Deletad,
Section 23.22: NOTICE TO MORTGAGEE.
II the holder of any m~ which has a lien against the Shopping Center or any pIIrt _ forwanls to Tenant
written notlca of the existence of such lien. then Tenant shall. 10 long .. such morlQage Is oute18ndlng, be required to give
to such lienholder the same nottce and opportunity to correct any _uU as Is required to be given to Landlord under this
Lease, but such nottce of _uU may be given by Tenant to Landlord and such lienholder concurrently,
Section 23.23: WAIVER OF JURY TRIAL.
Landlord and Tenant hereby waive all right to a trial by Jury In any IItlgatlon relalad to this Lease Including any
mandatory counterclaim or cross claim.
Section 23.24: CONFIDENTIALITY.
It is agreed and understood that Tenant may acknowledge only the existence of this Laesa by end between
Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained In this L.....to any
tenant or other occupant In the Shopping Center or to any agent. emplo)<oe, subtenant or assignM of such tenant or
occupant. Tenant acknowladgeo that any breach by Tenant of the agreements set forth In this SectIon 23.24 shall cause
Landlord Irraparable harm. The terms and provisions of this SectIon 23.24 shall survive the termination of this Lease
(whether by 'apse of time or otherwise).
Section 23.25: RIGHT OF FIRST REFUSAL.
As a specifically bargained for right hereunder, II Tenant makes an assignment for the benefit of creditors. flies or
suffers the flllng against U of a patItIon under any chapter of the Unllad States Bankruptcy Code, or II proceedings for
reorganization or composlllon with creditors under any federal or state law are InstiIulad by or against Tenant and Tenant
or Tenanrs trustee (es the case may be) subsequently attempts to assign this Laesa or Tenant's interests In this Lease
pursuant to 11 U.S.C, S 385 or otherwise, Landlord shall have the right of flrst refusal to pu_ and assume this L.....
and Tenant's Interests thereunder (collectively "Tenont'. L_hold Int_') upon the following terms and condUlons:
a. II Tenant recatves a bona fide. arm's length offer to purchase Tenant's Leu.hoId In_ts (the .Thlrd
PIIIty OIIer'), which Third Party OtIer Tenant or Tenant's trustee (u the case may be) _s acceptable, Tenant or
Tenant's trustee shall first. deliver a copy _to Landlord ('Landlord'. RFR NotIce'). Landlord shall _ have
the right to a..ume and acquire Tenant's L.....hoId Interests described in Landlord's RFR Nolice on the same terms and
condlllons as set forth In the Third Party OtIer.
b. Within thirty (30) days following Landlord's recaipt of Landlord's RFR Nolice, Landlord shall notify Tenant
or Tenant's trustee (as the case may ba) in wrlttng of Landlord's Intention to exercise the right of refusel to acquire
Tenant's LaasehoId In_ts or be deemad to have waived such right of flrst refusel with respect to the transaction
described in Landlord's RFR Notice. II Landlord timely exercises Landlord's right of first refusal, Tenant or Tenant's
trust.. shall be deemad to be contractually bound to selland assign Tenant's Laesahold Interests excluslvety to Landlord
In accordance with the terms and condlllons set forth In the Third Party Offer. II Landlord falls timely to respond to
Landlord's RFR Nolice or declines to exercise the right of first refusal granted hereunder In such Instance. then Tenant or
Tenant's trustee (u the case may be) shall be free to selland usign the Tenant's L_hoId Interests described In the
Landlord's RFR Notice to the proposad purchaser (the "Third PIIIty Pu_) on the same terms and condltlons set
forth In the Third Party OtIer; provided, however, that the sale and assignment of Tenant's LaesehoId In_to the Third
Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this
Lease by the Third Party Purchaser or any successor _, shall be and remain subject to the right of refusal herein
grantad to Landlord.
c. The parties hereby specifically acknowladge and agree that the right of first refusal granted to Landlord
herein Is not Intended to operate, and shall not be construad, as a provision that prohibits, restrtcts, or condUlons the
assignment of this Lease within the meaning of 11 U.S.C, S 385(1) or any similar staMery provision.
Section 23.28: ENTIRE AGREEMENT.
(a) There are no oral agreements between the parties hereto aIfectlng thia Lease. and this L..... supersedes
and cancels any and all previous negotiations, arrangements, -.. of Intent. Ie8H propoeels, brochures, agreements,
representations, promises, walTlnlies and understandings _ the parties hereto or dlspleysd by Landlord to Tenant
with respect to the subject matter thereof, and none thereof ahall be used to Interpret or construe this Lease. The Lease
AOIffe...ntTwistPnIlzeleo.-CopltaICIty-Flnsl
Men:h 4, 2005 \ v.nsantlJTF 33
~ iorth all of the covenants, promileo, ~ents, conditions and undenl18riaongB _n l.lIndlord and Tenant
concerning the Prem_, l.lIndlord's BuHellng and the Shopping Center. No a1t8l'8llon, amendment, change or addition to
this L...... shell be binding upon l.lIndlord or Tenant unleas reduced to writing, signed by them end mutually delivered
between them.
(b) The oubmlaalon by Londlonl to Tonont of thlo ~ ohall hll'l1l no binding _ or _, ohall
not conot_ on option for _Ing of the Prom_ nor confer any r1ghto or Im_ ony obll__ upon either
perty until the _ th8NOf by Landlord end the delivery of on ax_ original copy th8NOf to Tonont.
(e) THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF
JUDGMENT CONTAINED IN SECTION 16.02(b) AND (e) AND THAT THE LANDLORD-TENANT RELATIONSHIP
CREATED BY THIS LEASE IS COMMERCIAL IN NATURE. TENANT WAIVES ANY RIGHT TO A HEARING WHICH
OTHERWISE WOULD BE A CONDITION TO LANDLORD'S OBTAINING THE JUDGMENTS AlITHORIZED BY SUCH
SECTIONS AND ACKNOWLEDGES AND AGREES THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT
LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT M; SET FORTH IN SUCH SECTION WITHOllT
FURTHER PRIOR NOTICE TO TENANT AND LANDLORD MAY THEREAFTER GARNISH OR ATTACH TENANT'S
ASSETS OR PROPERTY AND MAY PLACE A LIEN ON THE SAME WITHOlIT FURTHER PRIOR NOTICE OR
OPPORTUNITY FOR A HEARING. TENANT HAS CONSULTED WITH AN ATTORNEY REGARDING THE RIGHTS
WHICH ARE BEING WAIVED UNDER THIS LEASE, HAS BEEN FULLY ADVISED OF THOSE RIGHTS AND
NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH RIGHTS OR TENANT HAS HAD
THE OPPORTUNITY TO SO CONSULT WITH AN ATTORNEY AND KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVES THE OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THE WAIVER OF
THESE RIGHTS AND NONETHELESS KNOWINGLY, INTELLIGENTLY AND VOLUNTARfL Y WAIVES SUCH RIGHTS.
IN WITNESS WHEREOF, l.lIndlord and Tenant haye executed this Leese as of the date IItot hanllnaboye wrflten.
LANDLORD:
PREIT SERVICES, LLC,
Agent for CAPITAL CITY LIMITED PARTNERSHIP
BY:
TENANT.
DOUGLAS AND UNDA SPONSELLER,
HUSBAND AND WIFE.
d/b/o A DIFFERENT TWIST PRETZEL CO.
~d<;o,.~' ~
saN.: 171_
~~~>I""U',
UNDA SPONIIilII -It
saN.: 202 111120
AllItI'enlrlffi_CO.-cepltaIClly-FI...1
March 4, 2005 \ Vanl8ntlJTF
34
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Mard14, 2005 \ VanaantlJTF
EXHIBIT ,.
QUARANTEE OF' .&..
DELETED.
35
EXHIBIT 'C'
COMPUOnONCERTIF~TE
DATED AS OF
PART I
SHOPPING CENTER LEASE (the "~e") dated as of
Parties:
PR CAPITAL CITY LIMITED FlARTNERSHIP
DOUGLAS AND LINDA SPONSEUER
("llIndlord.)
("TelUllll")
Premises:
Tenant Store No:
218-B
GLA of Premises:
Actual Opening Date:
595 souare feet
Rent Commencement Date:
expiration Date:
PART II
Tenant, Intending legally to be bound hereby, hereby ratifies the Lease and hereby certilIes and _ with
Landlord as follows:
A. the dates and other Information set forth In II1ls Completion CertIfIcate are true and corract; and,
B. the Rent Term commences on the Rent Commencement Date set forth In PART I hereof and ends
absolutely and without notice at 11:59 P.M. (1oc81 time) on the ExpiratIon Date, unless sooner termlneted as provided In
this Lease or extended by written _ment of the parties; and,
C. the Lease has not been assigned, supplamented, amended or otherwise modlfied: the Lease represents
the enllre agreement _ the parties as to the Prem_ end Its _Ing; there are no bl_ or other defaults by
Landlord under the Lease; all conditions of the Lease to be performed by Landlord and necessary to the enforceability of
the Lease have been satislled: the Lease Is In all other ~s In full force end effect; and,
D. Tenant has accepted poss_ of end has entered Into occupancy of the Premises; the Premises has
been accepted by Tenant.. being In accordance with the terms and conditions of the Lease; no Rent hes been nor will be
peld or prepeld oII1er then .. provided In the Lease end there are no defensas, offsets, deductions or counterclal",s
against the enforcemant of the Lease by Landlord or the payment of Rent by Tenant; and,
E, the Lease Is subordinate to the REA end to any and all mor1gageo on or deeds of trust as to the Shopping
Centor subjact to the non-dlslurbance provision of SectIon 18.02 of the Lease.
PARrill
In addition to the foregoing certlflcallons, Tenant has delivered to Landlord all of the following documents relating
to work that has been performed by, II1rough or under Tenant In or about the Premises:
A. properly executed and acknai.1edged affId_ (satIafactory to Landtord) from contractors engaged by
Tenant lI1at all work In or about the Premises has been fully com~ In llClCOrdence with the Flrwl PIano approved by
Landlord and that each of Tenanrs contracl1n, as well as allsubconlraclonl, laboranl and materialmen, has been paid In
full; and
B. properly executed and acknowledged releases of mechanics', materialmen's and laboranl' liens
(satisfactory to Landlord) with respect to the Premises from each of Tenant's contractors and from evary subcontractor
and materialman; and
C, a set of approved ....00111" drawings and speclllcatlons for the work done by Tenant In and about the
Pramlses, prepared, signed end sealed by Tanenrs architect, together with a complete set of Tenant's 'as-bullt. sprinkler
and other fire protection drawings and specillcatlons prepared, signed and sealed by Tenant's architect or engineer; and
D. trua and complete copies of certificates of occupancy and licenses from governmental bodies having
Jurisdiction over Tenanfe use or occupancy of any part of the Praml...; and
E. a datalled cost break-down sheet satisfactory to Landlord spactfytng the llna Items and cost of each llna
lIem of the work dona by, through or undor Tenant In and about the Prem_; and,
F. electrical underwrltars certlflcata from an organization satisfactory to Landlord.
ADltI8rentTwIslPrelaICo..QlpftaICIty-FInsI
Maroh 4, 2005 \ VsnaantlJTf 36
All terms deftned In any other Part of tha laa8a ant used hareln as deftned ~n,
This COMPLETION CERTIFICATE has baan axacutad as of tha data first abova wrItlan,
TENANT:
DOUGLAS AND UNDA SPONSELLER,
HUSBAND AND WIFE,
dIbI. A DIFFERENT lWIST PRETZEL CO.
DOUGLAS SPONSELLER
SIN.: 171 11 tll3
UNDA SPaNS" I "R
SSN.: 202 31 111I0
ADIlIerontTwI~.-capitaIClty-Fln.1
March 4, 2005 \ Vanunt/JTF
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STATEMENT
Dalo.
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PR CAPITAL CITY UNITED PAR'IliIERSHIP
PO BOX 12401
CtiVEl.ANO OH 44113
FnMn: CAPITAL CITY MAll
350B CAPITAL CITY MAll DR
CNM' Hl.L PA 1701 '.70D3
_TWIoI_.Co.
__EIIII_
ItInlMrPA 17331
,..lit: ~TwiII:"""Co.
i
FOR INQtJIRIES CALL: MtoV",TEJ.: 717.137-1275 ot P'AX: 717~737-a101
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DETAIL CHARGE
C_C", MoD DIferWlI TwIIt .....1 Co. ~ _114
,-- - Choovoo - ....... ~N_
1'112003 -- .co
1/'_ "1N1MUN~ 3,470.t3 (....13) ........, 0'
1/'_ __F_ ..,... (....) ..... D'
II1I21lO5 ......... F'" 141.71 (27,11) 121.04 01
1/'- REAl. ESTATE TAXES ,..... (20.14) 07.10 01
1/'_ CAM ESCROW $11.'4 (11.72) ...... D1
10/112000 MtNIMUM RENT 3,470.13 3.470.13
'01112000 EMtIJ_F.. ..... ...co
'01112000 _ F'" 1....75 141.11
'01112000 REN..ElTATE TAXES 10l.Ot ,-
'....12000 CNlI!IICIIOW 511.14 5'1.'.
11l1f2C105 MINIMUM ~ 3,410.13 "4_
111112005 en.g, MIl............ F..' ...... ...00
',1112005 -.... '....15 _70
111112005 R!AL ESTATE TAXES ,..... ,.....
,,1112005 CNI ESCROW 511.1. '1'.14
121112000 MINIMUM RENT 3,470.13 3.470.13
'21112000 en.,. Mlnllllfl'lMl ~ ...00 -
'21112000 ......... F... '....15 141.75
'21112000 REAl. ESTATE TAXES ,- ,-
'21112000 CAM ESCROW 51"'4 511.14
4/'_ MIlIIMUM RENT 3..70.13 1"-
41112001 __F_ ...... ".00
4/'/2001 M_F.... 1...15 141.75
4/'/2001 REAL ESTATE TAXES 101.01 : ,-
41112011I CAM ESCROW 51'.14 I $11.14
4I3/2COI .- 331... ......
4I3/2COI .....,.. 20.30 I 20...
412712001 ElectrieP_1ty 13.17 , 13.17
4/7//2WIl .- 37...D 173.10
4/7/12000 StaleT.. 22," 22."
5/1/2W1l ~IMUM RENT 3,470.13 3.470.13
5/'/2001 En"VYMI~F.. ".00 ".00
5/'/2001 Mll'IlIa1g Fund 14'.75 : 141.75
5/1/2001 R....ESTATET~ 1ot.08 ! 101.01
,
5/'/2001 CAN. ESCROW 518.'4 i ""'4
1/'/2001 MINIMUM RENT "410.13 I ..410.13
,
EXHIB~T 2
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff,
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER tJa A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
CIVIL DIVISION
No. ex. -sciD eiu~tT <T/L.~
VERIFICAITON OF NON-
MILITARY SERVICE
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa. J.D. No. 43523
Moira Cain-Mannix
PAIDNo.81131
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
.' .
...
Sponseller tJa A Different Twist Pretzel
VE.RIFICATION
The undersigned does hereby verify subject to the penalties of 18 Pa. C.S. ~ 4904 relating
to unsworn falsification to authorities, that the parties against whom Judgment is to be entered
according to the Complaint attached are not active members of the Armed Forces of the United
States or any other military or non-military service covered by the Servicemembers Civil Relief
Act, as amended, December, 2003 ("SCRA"). The undersigned further states that if said parties
are engaged in military or non-military service, as defmed within the SCRA, the undersigned is
without receipt of or knowledge of an Application for Relief as required by the SCRA. The
undersigned further states that the infonnation is true and correct to the best of the undersigned's
knowledge and belief and upon information received from others.
Date: <l /23 / O~
I
Don L. Smith, General Manager
Capital City Mall
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL V ANI1\.
\
!
p~ CAPiTAL CITY L r~UTED PARTNERSHIP, )
)
Plaintiff,
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER t/a A DIFFERENT TWIST
Pl.{ETZEL CO.,
Defendants.
CIVIL ACTION - LAW
No, 06-5080
)
)
)
)
)
)
)
)
)
)
)
)
)
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AFFIDA VIT OF SERVICE OF
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION
THEREON, NOTICE OF
DEFENDANTS' RIGHTS
Filed on Behalf of the Plaintiff,
PR Capital CIty Limited PaItncl'ship
Cpunsel of Record fOl thi<;; Party'
Stephen S. Zubn.'w
PA ID No 43523
)
)
)
)
)
)
)
)
)
)
)
)
)
Moira Cain-Manlllx
Pa LD No, 8113J
MARCUS & SHAPIRA, LLP
Finn No 145
One Oxford Centre, 35th Flom
301 Grant Stret:t
Pittsburgh, P A 15219
(412) 471-3490
IN THE COURT OJ<' COMMON Pl,EAS
OF CUMBERLAND CODNT\,',PENNSYI.V ANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
~ )
)
DOUGLAS N, SPONSELLER and LINDA M. )
SPONSELLER t/a A DIFFERENT TWIST )
PRETZEL CO., )
)
Defendants. )
CIVIL DIVISION
No. 06-5080
AFFIDAVIT OF SF,RVleE OF NOTICE UNDER RULE2958.1 OKJUDGMF~NT
~N!t~XEC.UIJON THEREON. NO'flCE Qf_ltE.F]~:NDA.~I~_"R1GI:[T~
I, Moira Cain-Mannix, being duly sworn according tn law, hereby certify that: '.
1. I served upon Douglas N. Sponseller tla A Different TwistPr~tzel Co. and Up01l
Lmda M. Sponseller t/a A Different Twist Pretzel Co., Defendants in the within action,an
nnginal Notice Under Rule 2958.1 of Judgment and ExecutlOtl thereon, Notice of Defendants'
Rights by United States Certified Mail, Return Recelpt Requested on the 13th 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 certitied 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 Defendants' Rights on September 13,2006,
~~
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
'h
35' Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Sworn to and subscribed
before me this _____ day of
September, 2006.
Notary Public
My Commission Expires:
,t,~
IN THE COURT OF COM:MON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
DOUGLAS N. SPONSELLER and LINDA M,
SPONSELLER tJa A DIFFERENT TWIST
PRETZEL CO.,
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
)
)
CML DIVISION
Plaintiff,
No, 06-5080
v.
Defendant.
NOTICE UNDER RULE 2958.1 OF JUDGl\ffiNT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: DOUGLAS N. SPONSELLER and LINDA M. SPONSELLER t/a A DIFFERENT
TWIST PRETZEL CO.
A judgment in the amount of$40,590.29 has been entered against you and in favor of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper allegedly signed by you. The sheriff may take your money or
other property to pay the judgment at any time after thirty (30) days after the date on which this
notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property
from being taken, YOU MUST FILE A PETITION SEEKING RELIEF FROM THE
JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, P A 17013
(717) 240-6200
Exhibit A
i .._.~
September jl, 2006
~
1 ~~
Stephen S. Zu row
Pa. LD. No. 43523
Moira Cain-Mannix
Pa. LD, No, 81131
MARCUS & SHAPlRA, LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Attorney for Plaintiffs, PR Capital City
Limited Partnership
/
SENDE
. Complete Items 1, 2, and 3. Also complete
item 4 If Restricted Delivery Is desired.
. Print your name and address on the reverse
so that we can return the Card to you.
. Attach this card to the back of the mailplece,
or on the front If space permits.
1. ressed to:
. s. ~ l\\rO~ S~nsQ..\\ Q. y
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m\,\()'\1Q\ \ ~ rq \133 \
2. ArtIcle Number
(TfImIer Ih:lm....--.
PS Form 3811, ~ 20CM
A Signature ~ '
?~1fi1J4 ~.)?uJh~ g ~ressee
B. Recelvecl by ( PrInted Name) C.
q
D. Is dellveIy address dlffelent from Item 1?
If YES, enter delivery address belo~:
a.lice "TYpe
Certified Mall 0 Express Mall
egister8d 0 Return ReceIpt for Merchandise
o Insured Mall 0 C,O.D.
4. Restricted Delivery? (Extra Fee) 0 Yes
7006 0100 0000 6bb3 0656
DorneMIc Return.Aec.Ipt ~114O
Exhibit B
C~g.~UFlCATE OF SERVICE
'The undersigned hereby certifies that a true and correct copy of the foregoing Atlidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights was served upon the followmg by United States mail, first class service,
postage prepaid, this'_~ay of September, 2006:
Douglas N. Sponseller
tla A Different Twist Pretzel Co.
226 East Elm Street
Hanover, PA 17331
Linda M. Sponseller
tla A Different Twist Pretzel Co
226 East Elm Street
Hanover, PA 17331
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
Plaintiff,
No. 06-5080
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER tla A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
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 Douglas N. Sponseller tla A Different Twist Pretzel Co.,
Defendants, whose last known address is 226 E. Elm Avenue, Hanover,
Pennsylvania 17331;
(3) against Linda M. Sponseller tla A Different Twist Pretzel Co., Defendants,
whose last known address is 226 E. Elm Avenue, Hanover, Pennsylvania
17331; and
(4) against PNC Bank, NA, Garnishee, with an address of2101 Market Street,
Camp Hill, Pennsylvania 17013;
(5) and index this writ against Douglas N. Sponseller Defendant, as a lis
pendens against the real property of the Defendants;
(6) and index this writ against Linda M. Sponseller Defendant, as a lis
pendens against the real property of the Defendants.
{A0183770.l }
...
(7) Amount due:
Interest from August 2,2006 at 6%: $
Costs:
Writ:
Sheriff:
TOTAL AMOUNT:
$ 40,590.29
527.11
$ 15.50
$ 150.00
$ 41,282.90
. ~
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: October tl, 2006
~~7M '
Stephen S. Zubrow (PA J.D. ~
Moira Cain-Mannix(PA J.D. No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
, ....
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of Cumberland County, for debt, interest and costs,
as above, directing attachment against the above-named garnishee for the following property (if
real estate, supply six copies ofthe description; supply four copies oflengthy personalty list)
Any and all of defendant's bank accounts in the possession ofPNC Bank NA. garnishee
and all other property ofthe defendant(s) in the possession, custody or control of the said
garnishee(s).
Date: OctoberLi, 2006
~Jn ·
Stephen S. Zubrow (P A J.D~)
Moira Cain-Mannix (PA J.D. No. 81131)
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
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 (1 ~ay of October, 2006:
Douglas N. Sponseller tla A Different Twist Pretzel Co.
Linda M. Sponseller t/a A Different Twist Pretzel Co.
226 E. Elm Avenue
Hanover, Pennsylvania 17331
~~~A' l^
Moira Cain-Mannix
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 06-5080 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 DOUGLAS N. SPONSELLER AND LINDA M. SPONSELLER T/A A DIFFERENT
TWIST PRETZEL CO., 226 E. ELM AVENUE, HANOVER, P A 17331
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of PNC BANK, NA GARNISHEE WITH AN ADDRESS OF 2101 MARKET STREET, CAMP
HILL, PA 17013
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated,
Amount Due $40,590.29
Interest FROM 8/2/06 AT 6% - $527.11
Atty's Comm %
Atty Paid $37.50
Plaintiff Paid
L.L. $.50
Due Prothy $1.00
Other Costs
Date: OCTOBER 23, 2006
Curtis
(Seal)
By:
Deputy
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, 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. 81131
"
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
)
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER tla A DIFFERENT TWIST
PRETZEL CO.,
Defendants.
CIVIL ACTION - LAW
No. 06-5080
PRAECIPE TO DISCONTINUE AS
TO GARNISHEE PNC BANK, NA
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
PAID No. 43523
Moira Cain-Mannix
Pa. J.D. No. 81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
"
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
DOUGLAS N. SPONSELLER and LINDA M.
SPONSELLER t/a A DIFFERENT TWIST
PRETZEL CO.,
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
Plaintiff,
No. 06-5080
v.
Defendants.
PRAECIPE TO DISCONTINUE AS TO GARNISHEE PNC BANK, NA
TO THE PROTHONOTARY:
Pursuant to Pa. R. Civ. P. 229, please mark the above action discontinued without
prejudice as to Garnishee PNC Bank, NA.
Dated: November 17,2006
Respectfully submitted,
~~
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
Counsel for Plaintiff,
PR Capital City Limited Partnership
. ...
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Praecipe to
Discontinue as to Garnishee PNC Bank, NA was served upon the following by United States
mail, first class service, postage prepaid, this J 1"day of November, 2006:
Craig S. Sharnetzka, Esquire
Countess Gilbert Andrews, PC
13 5 North George Street
York, PAl 7401
Carol Williams
PNC Bank, NA
Firstside Center
500 First Avenue
Pittsburgh~PA 15219
~~1J1~
Moira Cain-Mannix
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CASE NO: 2006-05080 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CITY LIMITED
VS
SPONSELLER DOUGLAS N ET AL
And now WILLIAM CLINE
,Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:00 Hours, on the 1st day of November, 2006, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT
SPONSELLER DOUGLAS N T/A
A DIFFERENT TWIST PRETZEL CO
in the
hands, possession, or control of the within named Garnishee
PNC BANK NA 2101 MARKET ST
CAMP HILL, PA 17011
Cumberland County, Pennsylvania, by handing to
AMY BELLMUND (TELLER)
personally three copies of interogatories together with 3
true
and attested copies of the within WRIT OF EXECUTION
and made
the contents there of known to Her .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So answers: .
:~~ ~~~~C~tt
.00 R. Thomas Kline
.00 Sheriff of Cumberland
. o~ 00 if rl._ "}It, }M,
11;03/2006
By4V~
v Deputy Sheriff
County
Sworn and Subscribed to
before me this
day of
A.D
SHERIFF'S RETURN - GARNISHEE
~. ~lt
CASE NO: 2006-05080 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
PR CAPITAL CITY LIMITED
VS
SPONSELLER DOUGLAS N ET AL
And now WILLIAM CLINE
(Sheriff or Deputy Sheriff of
Cumberland County of Pennsylvania ( who being duly sworn according
to law( at 0015:00 Hours ( on the 1st day of November ( 2006( attached
as herein commanded all goods ( chattels, rights( debts, credits, and
moneys of the within named DEFENDANT
SPONSELLER LINDA M T/A
A DIFFERENT TWIST PRETZEL CO , In the
hands, possession, or control of the within named Garnishee
PNC BANK NA 2101 MARKET ST
CAMP HILL, PA 17011
Cumberland County, Pennsylvania ( by handing to
AMY BELLMUND (TELLER)
personally three copies of interogatories together with 3
true
and attested copies of the within WRIT OF EXECUTION
and made
the contents there of known to Her .
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
.00
.00
.00
.00
.00
.00
Sworn and Subscribed to
before me this
day of
By
A.D
Thomas Kline, Sheriff, who being duly sworn according to law, states
this writ is returned STAYED.
Sheriffs Costs:
Docketing
Poundage
Advertising
Law Library
Prothonotary
Mileage
Surcharge
Levy
Certified Mail
Post Pone Sale
Garnishee
Postage
TOTAL $
18.00
1.84
.50
1.00
13.20
30.00
20.00
9.00
93.54 ../ L~
(S : \ \ ',/ C\(,
li..,/! , i
(f;,.~
".
Advance Costs: 150.00
Sheriffs Costs: 93.54
$ 56.46
,.
/-
Refunded to Atty on 11/20/06
J ;)-/1/ J 0"-
~~~~
.,~
R. Thomas K~ine, Sheriff J'
cJ~, ~~2bJ
By Claudia A. Brewbaker
o
("'
~
O<J
<:;
\.~ 0?Sllns
'-
t~, '/ ~ g ~'(p
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 06-5080 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 DOUGLAS N. SPONSELLER AND LINDA M. SPONSELLER T/A A DIFFERENT
TWIST PRETZEL CO., 226 E. ELM AVENUE, HANOVER, PA 17331
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property ofthe defendant(s) not levied upon in the possession
of PNC BANK, NA GARNISHEE WITH AN ADDRESS OF 2101 MARKET STREET, CAMP
HILL, PA 17013
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $40,590.29
Interest FROM 8/2/06 AT 6% - $527.11
Atty's Comm %
Atty Paid $37.50
Plaintiff Paid
Date: OCTOBER 23, 2006
L.L. $.50
Due Prothy $1.00
Other Costs
Curtis
(Seal)
By:
Deputy
REQUESTING PARTY:
Name MOIRA CAIN-MANNIX, 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. 81131