HomeMy WebLinkAbout06-5081
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff,
CNIL DIVISION
No. Ol, -.tt:i>( l?i()~CT~
v.
SHAHRZAD (SHERRY) M. LIAGHAT t/a
ITALIA JEWELERS,
Defendant.
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 Defendant and confess
judgment in favor of Plaintiff and against Defendant for money as follows:
Amount due 9/2/06 through 1/31/08
(17 mos. @ $2,916.67)
$ 8,770.28
$ 49,583.39
Amount due from 2/1/06 through 8/1/06
Attorneys' fees for enforcement and collection (5%)
provided under 916.02 of the Lease
$ 2,917.68
Filing Fee
$ 19.50
TOTAL
$ 61,290.85
Dated: August 18, 2006
~~~.
Attorney for Defendant r-
Ital1a Jewelers
UNSWORN VERIFICATION UNDER 18 PA. C.S. & 4904
The undersigned hereby states subject to the penalties of 18 Pa. C.S. S 4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative of the
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 CAPI CITY LIMITED PARTNERSHIP
Dated: ~'a "2..,t;;
,2006
By:
an
sel and Executive Vice President
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff,
v.
SHAHRZAD (SHERRY) M. LIAGHAT tla
ITALIA JEWELERS,
Defendant.
CIVIL DIVISION
No. 0(.. -S'DP/ C('ui~~
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. LD. No. 43523
Moira Cain-Mannix
PA ID No. 81131
MARCUS & SHAPIRA 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
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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CIVIL DIVISION
Plaintiff,
No.
v.
SHAHRZAD (SHERRY) M. LIAGHAT t1a
ITALIA JEWELERS,
Defendant.
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
1, Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited
partnership, with an address of clo PREIT Services, LLC, 200 South Broad Street, Third Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the Capital City
Mall in Camp Hill, Pennsylvania.
2, Defendant Shahrzad (Sherry) M. Liaghat is an adult individual t1a Italia Jewelers.
Defendant's last known address is 2810 Fairview Road, Camp Hill, PA 17011.
3, The original instrument evidencing the obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defendant which
is a true and correct reproduction of the original, is attached hereto and marked as Exhibit 1,
and is incorporated herein by reference. The instrument is a Lease dated November 1, 2005, as
amended by First Amendment of Lease dated April 3, 2006 (the "Lease"). Defendant is the
Tenant under the Lease, and as noted above, Plaintiffis the Landlord under the Lease. This
confession for money judgment is warranted by Section 16.02 (b) ofthe 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 l6.0l(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 Defendant failed to make payment of rent and other charges which were due
from approximately February of 2006 forward. Plaintiff gave written notice of the failure to pay
on, among other dates, July 22, 2006, and August 10,2006, and more than ten days have passed
after Defendant was sent notice of its failure to pay without making the missing payments.
Further, Defendant vacated the premises on July 22,2006 in violation of Sectionl6.01 (c) ofthe
Lease.
8. The itemization of the amount presently due under the Lease and without waiver
of future damages is as follows:
Amount due from 2/1/06 through 8/1/06 (Ex. 2)
$ 8,770.28
$ 49,583.39
Amount due 9/2/06 through 1/31/08
(17 mos. @ $2,916.67)
Attorneys' fees for enforcement and collection (5%)
provided under S 16.02 of the Lease
$ 2,917.68
Filing Fee
$ 19.50
TOTAL
$ 61,290.85
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendant in the total sum of$6l,290.85 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 1.8 , 2006
~~~
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
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Counsel for Plaintiff, PR Capital
City Limited Partnership
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SHAHRZAD (SHERRY) M. LIAGHA T tla
IT ALIA JEWELERS,
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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CIVIL DIVISION
Plaintiff,
No.ex. -
C.i~~L~'iJL~
v.
Defendant.
NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY
TO: SHAHRZAD (SHERRY) M. LIAGHAT tla ITALIA JEWELERS
Please take notice that ajudgrnent for money in the amount of$6l,290.85 has been
entered against you by confession on the date below in favor of the Plaintiff.
Date:
f&>
LEASE AGREEMENT
BY AND BETWEEN
l.E6AI.
lS~~~~~~
PR CAPITAL CITY LIMITED PARTNERSHIP, .. Landlord
ltall"'ewele~8pIt8ICIty-Klo&k-Fln81..fln81
September 13. 2005 \ OIOlolCO
and
SHAHRZAD (SHERRY) M. LIAGHAT, a. T.n.nl
TRADE NAME: IT ALIA JEWELERS
EXHIBIT 1
FUNDAMENTAL LEASE PROVISIONS
Thl. Leue i..xocuted end medea. of NfftWl'" 1. ,2005, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP, a Pennaylvanla Ilmllad ""rtna..hlp (herein called "Landlol<l") and SHAHRZAD (SIII!RRYI M,
LIAGHAT, (herein called "Tanant"), Landlord and Tenant having the following notice add.......,
Landlord:
Copy 10:
PR CAPITAL CITY LIMITED PARTNERSHIP
c/o PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA 19102
Altn: General Counsel
PR CAPITAL CITY LIMITED PARTNERSHIP
Managemenl OffICe
3506 Capital City Mall Drive
Camp Hili, PA 17011
Attn: General Manager
Tenant:
Copy 10:
Shahrzad (Sherry) M. Llaghat
51 Emerson Street
Uniontown, PA 15401
Certain Fundamental Lease Provisions are presented in this Section and represent the agreement of the parties hereto,
subject to definition and elaboration in the respective referenced Sections and elsewhere in this Lease:
(a)
Tenant', Tracie Name:
ltalls Jewelers
(See Sec. 7.01)
(b) Rent Term: Twenty-S1x (26) months commencln9 on the Rent Commencament Date, The Rent Term expires
on the last day of Januery, 2008 (the "Explratlon Oat."),
(c)
(d)
(e)
(f)
Tenant Store Number:
K,12
(See See. 3.01)
(See Exh, A)
(See See. 1.04)
(See Sec. 2.03)
(See See, 2.03)
(See See. 2,03)
GLA of Proml":
192 square feet
D..lgn Dl'1IWlnl/l Subml..lon Oat.: September 15, 2005
Tenant'. "Con8tructlon Commencement Date":
& "Con.lrucllon Perfod": Slxty-One (81) days
(g) Minimum R.nt:
October1,2005
nme Period
Annual Amount
Monthly Amount
Rent Commencement Date
through the end of the Term
$35,000,00
$2,916.67
(See See. 4.03)
(h) Percontogo Rent:
Time P.rlod
Break Point
The "Percentaae"
(I)
Q)
(k)
Rent Commencement Date
through the end of the Term
Required Opening Date:
December 1, 2005
$350,000,00
Ten Percent (10%)
(See See. 4,04)
(See See. 4,02)
(See Sec. 2.02)
Securlty Dopoalt:
$3,000,00
Markatlng S.rYlce Chal'l/l: $5,20 per square foot of the GLA of the Premises per Year
Minimum Advertlolng Chal'l/l: NIA
(I) C.rtaln Other Charg.. Payable by Tenenl:
(See See, 9,01)
(See Sec. 9,02)
Tax Charg.
S.rYl_ Cha_
Refue. Handling Charg.
CAM Chal'l/l
Spoclal AI....m.nl
(See Sec. 5.01)
(See See. 6.01)
(See See, 6.03)
(See See. 8,03)
(See See. 9.01)
ltallaJeweleI"l-CBpltBICIty-Klolk.Flnal.Flnal
September 13, 2005 \ DiDIo/CD
2
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FUNDAMENTAL LEASE PROVISIONS (CONT'D)
"Agent" and To Whom Rent Payable,
PR Capillll CIIy Associates LP
P,O, Box 644052
PiIlsburgh. PA 15264-4052
(n) U.., The retail 181e 01 gold and silver J_lry Including necklaces. braoelell, watcheS, chamls, end earrings,
clocks. gems end stones of all kinds, figurines and the repair of all 01 the same and for no other purpose
whatsoever,
(m)
(See Sec. 7,01)
ItBllaJeweterl-CapbtCIty-Klo8k-Flnal-Flnal
September 13, 2005 \ DIDIoICD
3
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LEASE AGREEMENT
ARTICLE 1: INTRODUeTORY PROVISIONS
Section 1.01: REFERENCES AND CONFLICTS.
Referencea .ppe.ring in the Fund.m.ntal L.a.. Provision. are to d..lgnat. .om. of the oth.r pl.ces In thl.
L.a.. where additional provl.lon. .pplicabl. to the particular Fund.m.ntal L.a.. Provi.ion. .ppe.r. E.ch ref.r.nc. In
this Lease to any of the Fundamental Lease Provision, ,ha" be construed \0 Incorporate all of the terms provided for
under such provlsfons, and such provision shall be read in conjunction wtth all other provisions of this Lease appHcable
th.reto, If there I. .ny conflict between any of the Fund.m.ntal L.a.. Provisions and .ny other provl.ion. of thl. L....,
the I.tt.r .hall control. The lI.ting on the Fundam.ntai L.... Provl.lons of monetary charges payabl. by T.nant shall not
be construed to be an exhau,stive list of all charges or the amount thereof payable by Tenant under this Lease.
Section 1.02: GENERAL DEFINITIONS.
(.) Th. t.rm 'Shopping Cont.(' m.an. the iand shown on Exhibit 'A' attached her.to and by this
reference incorporated herein. as the same may hereafter be reduced, expanded or otherwise altel'ed from time to time.
(b) The term 'M.II P.....I...' m..n. the Shopping C.nt.r .xcluding howev.r the Majors' Pr.mis.. and the
term "Mall Premi.....lncludes the same as reduced. expanded or otherwise altered from time to time.
(0) The term "Landlord'. Bulldl"i" means the buildings, structures and other improvements shown in
general on Exhibit 'A' and Includ.s the 'Encloa'" M.II' (herein_ defined), but .xclud.. the MajClnl' Pr.mi..s
(hereinafter defined), Landlord'. Building is part of the Mall Premise., The term 'landlord'a Building' includ.. the ..m.
as reduced, expanded or otherwise ahered from time to time.
(d) Tha t.rm 'Malora' Preml...' (or 'Malor'. P.....I....) mean. the pr.mi... shown on Exhibit 'A', page
1 by such term, or by the word 'MaJor' or name of the prospective or actual principal occupant thereof (the 'MaJora" or a
'Major"), .nd the term 'Malora' P.....l.... (or 'Malor'. P....._.) Includ.. the sam. as reduced. .xpanded or
oth.rwls. altered from time to tlm.. The term 'Mojor' (or 'Malora') includ.. any repl8Ctlm.nt for or oth.r .ubstnute of the
primary occupant of a Malor's Premises as Mil as, in the case of an expansion of the Shopping Center, the primary
occupant of the pr.mls.. equ.1 to or .xceeding, in t.rms of GLA, the GLA of any on. (1) of the Mejors' Premls.s shown
on Exhlbtt "A" hereof (even though those premises may not be originally shown thereon). Referencee. in this Lease 1.0 a
Major or Majors shall include any such replacement, substitute or additional Major and its premises are included within the
terms "MaJoN' p,.ml..." and "M~or'. Preml......
(e) The term "Common AreM" means all areas, facilities and improvements operated or provided at or in
connection with the Shopptng Center from tUne to time for the non-exctuslve common use of Landlord, the tenants of the
Mall Premls,s .nd the Majors, and shall include but not be limited to the 'Entloa'" M.II' (her.inaft.r defined), parking
areas, roadways, ramps, traffic controls, truckways, loading and unloading docks, delivery areas, sidewalk., stairways,
escalators and elevators (if any), service corridors, exit corridors, seating areas, buffer Breas, screening facilities,
merchandise pickup stations (excluding those of Majors, If any), public rest rooms and comfort stations, retaining walls,
landscaped areas, open space areas, utility systems, sanitary and other waste handling systems, holding tanks, force
mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage
systems, and lighting systems. The term "Common Areas" includes the same as reduced, expanded or otherwise altered
from time to time.
(f) The term "End08ec:t Mall" means the enclosed cUmate controlled pedestrian mall located in Landlord's
Building, and the term "Enclo.ec:t Mall" includes the same as reduced, expanded or otherwise altered from time to time.
(g) The term 'P.....I..." m.an. th. ar.a of the Encio.ed M.1i on which T.nant .helllnstali its kio.k which
.pace is In the approxlnlete location m."'ed on Exhibit. A'. Nolwilhstanding th.t the klo.k sh.1I for .om. purpo..s be
deemed personal property, unless otherwise specifically provided for, whenever in thl$ Lease the word "Preml..... Is
u.ed, it shall includ. the klo.k wttI1ln its m..ning. In the .v.nt the Pr.mlses Is a corner location, the Premises sh.1I
exclude any rights with respect to the exterior side wall of the Premises.
(h) The term "Fait Food Cluater" means the area or areas now or in the future specifically designated by
Landlord for small restaurant or other food service operations situated in Landlord's Building or elsewhere in the Mall
Premises, including the Individual premises and any seating weas located therein and the maintenance and housekeeping
areas primarily serving the Fast Food Cluster. The term "Fast Food elu.te"" includes the same as reduced, expanded or
otherwise altered from time to time.
(i) The term "GLA" means with respect to the Premises and all other leasable areas, Landlord's best
estimate of the number of square feet of area on all floors in Landlord's Building for the exclusive use by the tenants or
other occupants thereof and their customers, clients or other Invitees Including without limitation mezzanines and
balconies if used for the sale of goods and/or services {but excluding all other areas and space defined herein as part of
Common Areas). GLA of the Premises shall be the areas shown on the Fundamental Lease Provisions and the GLA of all
other leasable areas shall be measured from the exterior face of the exterior web and the extertof face of service con'idor
walls, the line along the front of the premises where the premises abuts the Enclosed Mall 81 shown on Exhibit A (which
line is commonly known as the ..L.... L1n."), or the Lease Line of any pop..outs referred to in Section 1.04, as the case
may be, and the center line of any wall the tenant ln question shares with other tenants or occupants of the Landlord's
Building. With re.pect to all I....bl. .reas other than the Premis.s, GLA sh.1I be detarmined by virtu. of the deflnillon
contained in the lease In question. No deduction from GLA shall be made for columns, stain, elevators, or any lnterior
construction or equipment. From time to time during the Term, Landlord may give Tenant notice of the GLA of Landlord's
Building, at a given time for a given period of time, as such GLA may be revised because of reductions, expansions Of
other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions In the leases of other
ItBlleJewelers-C8pltaIClty-Klolk~Flnal~Fln81
September 13, 2005 \ OIOIoICO 4
te""nts or occupants, The GLA of the Premises and of Landlord's Building shall be utilized to calculate the GLA Fraclion
(defined in Section 1.020) and to make any other calculatlons required to determine the charges to T enent.
m The term "GLA Frectlon" means a fraction, the numerator of which shell be the GLA of the Premises and
the denominator of which shell be the occupied GLA of Landlord's Building, subject, however, to the provisions of Section
4.08,
Tenant hereby acknowledges and agrees that. notwithstanding enythlng 10 the conlrary sel forth
elsewhere in this Lease, for purposes of computing any Add~ional Rent hereunder which is calculated by using the GLA
Fraction, the numerator of the GLA Fraction shall Include the total square footage of a two fOOl (2') wide queuing area
along the entlre length of the open .1d8(s) of the Premises. Theralore, in order to determine any Addltion.' Renl
hereunder which calculated upon a per.square-foot basis as aloresald, the GLA of the Premlsas shall be deemed to be
three hundred twenty (320) squere feet In lieu of the actual GLA of Ihe Premises as set lorth In the Fundamental lease
Provisions. Such queuing area (which contains one hundred twenty-alght (128) square leet of floor area) Is Included for
purposes of calculetlng Additional Rent under this Lease as set forth hereinabove, but only for such purpose, and such
queuing area shall not, in any manner whatsoever, be deemed hereunder to be a part of the Premises. Further, in no
event shall Tenant's kiosk encroach into or upon said queuing area.
(k) The tarm "Junior Mojor(e) Preml..." means elthar of the following, (not heraln Identified as or otherwlsa
hereunder constllutlng a "Mojor"): (i) any so called "out parcel" or any premtseo Ihal does not have direct customer store
frontage andlor customer entry to the Enclosed Mall or (II) any premises which contains in excess of 15.000 square feet of
GLA in the Shopping Center,
(I) The term "L...." as used in this document (the "L......) shall mean the Fundamental Lease Provisions,
the lease Agreemenl, lhe Exhiblls a\\ached hereto end Addendum, ~ any.
SllCtlon 1.03: EXHIBITS,
The following plans and special provisions are attached hereto as Exhibits, are Incorporated herein and hereby
made a part of this Lease.
EXHIBIT A
Plan of the Shopping Center as presently constituted which plan also shows the approximate location of
the Premises.
EXHIBIT B
EXHIBIT C
Deleted,
Completion Certificate.
Section 1.04: GLA OF THE PREMISES.
Deleted.
SllCtlon 1.05: CHANGES TO SHOPPING CENTER.
As between landlord and Tenant, Landlord may at any time and from time to time eliminate land from, or add to or
substitute for land of, the Shopping Center or any part thereof, or eliminate, add or substitute any improvements, or
change, enlarge or consent to a change In the shape, size, location, number, height, or extent of the improvements to the
Shopping Center or any pert thereof. Including, without limitation adding addlllonallevels 10 any existing bu"dings therein.
Section l.oe: CROSS EASEMENT AGREEMENT.
Tenant understands and egrees with Landlord that, notwithstanding anything to the contrary contained In this
lease, the Shopping Cen\er Including, wlthoul limitallon, \he Common Areas and the Pramls.. are and shill be subject,
subordinate and otherwise junJor to any cross ....ment agreement (as they may be or may have been cr.ated, amended,
supplamanted or otherwise modllJed from tima to time) between Landlord and each occupant of the Malors or Junior
Majors who are parties thereto (such cross easement agreemant baing herein collectively caned the "REA").
ARTICLE 2: PREMISES AND TENANT'S WORK
SllCtlon 2.01: LEASE OF PREMISES.
Landlord, In consideration of the "Rent" (defined In Section 4,01) to be paid and the covenants to be performed by
Tenant. does hereby demise and teaM unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at
the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein
as the PremIses situated or to be situated In Landlord's Building, as the case may be,
Section 2.02: SECURiTY DEPOSIT.
The sum referred to as the security deposit in the Fundamental Lease Provisions is herein called the "Security
D.pa.M". The Security Deposit will be held by landlord, wlthoul Inlerest accruing in favor of Tenant, as security for
Tenant's faithful performance of all of the terms and conditions of this Lease for and during the Term. Provided Tenant is
not in default under this Lease, Landlord shall return the Security Depos~ to Tenant at the expiration of the r""t twelve (12}
months of this Lease. In no instance shall the amount of the Security Deposit, be considered a measure of liquidated or
other damages, Allor eny part of the Security Deposit may be applied by Landlord in total or pertial cure by Landlord Of
any bceach or other defau\t of Tenant. Tne application 01 all or any part of the Security Deposit to any obligation or default
of Tenant under this Lease shall not deprive Landlord of any other rights or remedies Landlord may have nor shall such
application by Landlord constitute a waiver or assumptiOn by landlord, If, during \he firsl lweIve (12) months of Ihls leese,
all or any pert of the Security Deposll is applied by Landlord to an obligation or dalault of Tenant her.under, Landiord .hall
Itall.Jewele....C.pltaICIty-Klotk..F1n.I..Flnal
September 13, 2005 \ DlDIoICD 5
ha~e the right to call upon Tenant to restore the Security Deposit to its original amount by giving notice to Tenant and
Tenant shall Immediately ....tore the Security Depoall \0 Its original amount by p.yment thereof to L.ndIOrd, T.nant shall
not h.ve the right to call upon L.ndlord to .pply .11 or any pari of the Security Dopasllto cure .ny breach or other def.ult
or to fulfill any obligation of Tenant but such use shall b<l oaIeIy In the discretion of L.ndIord. It Is distinctly understood and
agreed that W Landlord tr.nslers lis Interest In this Lease during the first twelve (12) months of this L..... then the
Security o.po.1I may b<l turned over by Landlord to Landlord'. grantee or other tran.f......, and upon any such turnover of
the Security Depo.lt. Tenant hereby rei..... L.ndlord herein n.med of .ny .nd .1I11.blllty or other obligation with re.pect
to the Security Depoall. II. application and return. and Tenent agree. to look solely to .uch. grantee or other transferee. It
is further understood and agreed that these proVisions shall also apply to subsequent grantees and other transferees.
Section 2.03: PREPARATION OF PLANS AND TENANrS WORK.
(a) Tenant has had the opportunity to examine the Premises and hereby agrees to accept same In the "as is"
condition In which the Premises exist on the date Landlord turns over the key to the Premises to Tenant or Tenant's
designee. Tenant further acknowledges that landlord has not made any representations as to the present or future
condition of the Prem\&&s or' what Items, If any, the present occupant of the Premises is required to or may leave therein.
Landlord shall not be required to send Tenant any formal notice tendering possession of the Premises nor shall Landlord
b<lll.ble In the evant the .xistlng occupant of th. Premise. fa"s to timely vacale the same. except that any d.l.y in
occupancy shall extend the Required Opening Date .peclfled herein for a period equal to the numb<lr of days b<ltween the
Construction Commencement Date specified herein and the date such former tenant vacates; provided that if physical
possession of the Premises Is not available by a date which is one year from the Construction Commencement Date, at
Landlord's option, this Lease shall be null and void and neither party shall have any liability hereunder to the other.
(b) Tenant shall perform all work required to be performed by Tenant to construct and install the kiosk and to
adapt the same for Tenant's use, as such use is specified and limited by the Fundamental Leale Provisions, all such work
being referred to herein as ""en.nt'. Work". Tenant shall design the kiosk In accordance with Landlord's current store
and storefront design criteria booklet and otherwise comply with all insurance and other requirements therein (herein
called "StOI'1l o..llIn Crltttrl."). a copy of which Tenant acknowledges It has received, Tenant.hall In.truct lis architect
or designer to prepare Ten.nrs pl.n. for the klo.k In compll.nce with the Americans with Dlsab"lIles Act. the Clean Air
Act and all olhor .pplicable laws, rules, codes, end reguI.tlon.. In the event of any incon.lstencl.. b<ltween th. text of this
Le..e and the Store o..lgn Crneria, the latter shall prev.lI, Entry by Tenant to the Premises prior to the Rent
Commencement D.te .hell b<l .ubject to all of the provisions of this Lea.., except the duty to pay R.nt but Tenant.hall
pay for all ulllnle. and service. supplied to It during such parlod, Tenant agree. to perform T.nanrs Work in accordance
with the provisions of this Lease and in such manner so as not to cause any Interference wlth the use, occupancy or
enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall prompUy cause to b<l rep.lred ell
items which may have been damaged as a result of the performance of Tenant's Work promptly upon the occurrence of
such damage and sha" at .11 limes keep all portions of the Shopping Center free from .nd unob.tructed by debris.
equipment or materials related to Tenant's Work. Tenant shall not penetrate the floor slab of the Premises.
(c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(h.reln c.lled the "Tenant Coordinator") for the Landlord's approval design drawings (hereln called the "O..lgn
Orawlnga") specifying each a.pect of Tenanrs Work and specifically Including. colored rendering of the proposed
storefront and signing. s.mple material. to be used In the kiosk and sign, photograph of flxtu.... to be u.ed and th. interior
layoul of lhe kiosk, The De.lgn Drawing. .hall b<l prepared In accordance with th. Store o.slgn Criteria, After receipt of
the Design Drawings. Landlord .h.1I return to the Tenant the Design Drawings. ellh.r "approved". "approved a. nOled" or
"disapproved"; if they are marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before
thirty (30) d.ys after receipt of the "dl.epproved" o..lgn Drawings. Tenant shall re.ubmlt to the Tenant Coordin.tor
revised Design Drawings meeting Landlord's objections. Landlord shall thereafter return the same to Tenant, marked as
set forth above and Tenant shall within en additional thirty (30) day period re.ubmll revised drawings until the s.me heve
been "approved as noted" or "approved", On or before thirty (30) days efter receipt of 'approved as noted" or "epproved"
Design Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working drawings and
specifications (herein called "Final Plan.") for architectural, electrical, mechanical, sprinkler and plumbing work within the
Pr.ml..s and .11 other Tenant Work proposed by T.nanl and shown on the Design Drawings and required by the Store
Design Criteria. The Final Plans .hall b<l prepared In accordanca with the Design Drawings a. marked "approved a.
noted" or "approved" by Landlord. The Final PI.ns shall Incorporate any revisions required by Landlord 10 lhe Design
Drawings. InclUding tho.e forming the basis of L.ndlord's .pproving the same "a. noted", Aft... receipt of the Final PI.ns.
Landlord .hall return to Ten.nt the Final Plans, marked ellher "approved". "approved as noted" or "di..pproved". W th.y
are marked "d\aapproved", Landlord shan state the reasons for such disapproval and Tenant shall, on or before ten (10)
days efter receipt of such "di.approved" Final PI.ns, correct any deflclencle. stated by Landlord and resubmit within ten
(10) days corrected Final Plans to Landlord unt" ..me are accepted as "approved as noted" or "approved". If Landlord
accepts Tenant's Flnat Plans "approved as noted", Tenant need not resubmit the same to Landlord's Tenant Coordinator,
but Tenant shall revise such Final Plans to Incorporate Landlord's required changes and Tenant covenants that the Tenant
Work In the Premises shall be constructed In such fashion 8S to comply with the notes disclosed on such "approved as
noted" Final Plans. If Tenant does not correct such deficiency and resubmit any disapproved Final Plans within the
required time period, such fal\ure shall constitute an Event of Default. Tenant's Work shall be perlormed only in
accordance with the Final Plans, as marked "approved as noted" or "approved" by Landlord. Tenant's failure to submit its
Design Drawings on or before the Design Drawings Submission Date or Tenant's failure to commence Tenant's Work on
or before the Construction Commencement Date shall be an Event of Default pursuant to Section 16.01 unless such
failure results from Landlord's inability to deliver possession of the Premises to Tenant on the Construction
Commencement Date.
(d) Together with Tenant's submission of Its Design Drawings and together with any other plans .ubmitted by
Tenant relating to any other work In the Premises which Tenant desires or is required to perform, Tenant shall pay Agent
on each occasion the sum of Two Hundred Fifty and 00/100 Dollars ($250.00) to defray the cost of reviewing Tenant's
Design Drawings and Final Plans.
(e) On or b<lfore the eons\Nctlon Commencemenl Dale. Ten.nt shall d.posn with L.ndlord certificates of
Insurance as required In Article 11 and the Store Design Criteria, as well as a true copy ot Tenant's building permit and
Tenant shall commence Tenant's Work. and prosecute it diligently and continuously to completion including installation of
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f1x~res and equipment in the Premises. Prior to the commencement of any Tenant Work or the delivery of any material to
the Premises by any contractor, subcontractor or materialman (herein called "Contractor"), Tenant shall deliver to the
Tenant Coordinator a signed, acknowledged and sealed waiver of liens (herein called "Contractors Weiver of Liens") from
eech Contractor In the form apeclflod by Landlord. The Contractor's Waiver of Uens provides, among other things, that
the Contractor waives eny end all lien rights that It may hava against Landlord's estate. right, tnle and Interest In the
Shopping Center and any pert thereof Including. without limitation, Landlord's Su.dlng and the Mall premis.., Within thirty
(30) days after Tenantls opening the Premises tor business, Tenant shall deliver to Landlord an executed Completion
Certfflcate In the form attached hereto as Exhibit "C".
(f) Landlord shall have the right to post and keep post.d in the Promis.s notices of non-responsibility, or
such other notices as Landlord may deem to be proper for tho protection of tho Landlord or Landlord's .stet., right, till.
and interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any work which
might result in any claim, lien or other charge give to the Landlord wrItten l'lOtice of its intention to commence said work In
sufficient time to anabl. Landlord to post, fil. .nd record such notic.s. Th. provisions of this S.ctlon 2,03 shall apply with
respect to Tenant's Work. or,any other work performed in or about the Premises at any time during the Term hereof.
Section 2.04: OPENING OF PREMISES,
(a) Tenant agrees to open its business to the public in the Premises no later than the Required Opening Date
specified In the Fundamantel L.asa Provisions.
(b) Tenant shall compl.te, or caus. to be completed, T.nant's Work and tho Installation of m.rchandise no
later than the Required Opening Date. If Tenant fails to open its business to the public In the Premises on or before the
Required Opening Date, T.nanl shall pay to Landlord, In addition to Minimum Rent and Additional Rant, an amount equal
to one percent (1 %) of the annual Minimum Rent for each day Tenant's business remains not open in the Premises from
and aftar the Required Opening Dale (counting tha said Required Opening Date as the first such day). Any and ail sums
and other chargas peyable by Tanant to Landlord pursuant to the immediately preceding sentenea shall be paid on
demand to offset administrative costs and expenses incurred by Landlord as a result of Tenant's late opening and shall in
no way abrogate, or relieve Tenant from any of Tenanrs obligations under this Lease, Including without limitation the
obligation to open Its business in the Premises, and Landlord shall have all other rights and remedies under this Lease, at
law and In equity, arising from Tenant's failure to open pursuant to this Section 2.04(b).
Soctlon 2.05: MECHANIC'S LIENS,
(a) Tenant will not permit to be created or to remain undischarged any lien, encumbrance or other charge
arising out of any work done or materials or supplies furnished by any contractor, subcontractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement or chattel mortgage whtch might be or become a lien
or ancumbrance or otho< oharg. (collectively a "Charv-") against or upon the Shopping Center or any part th.raof,
including without limitation the Mall Premises and Landlord's Building or th.lncoma therefrom. Tenant w1i1 not suffer any
other matter or thing whereby the .state, right, title and interest of Landlord In the Shopping Center or any part thereof
Including wlihout limitation the Mall Preml..s and Landlord's Building might be Impaired, ~ any claim 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 contractor to work on the Premises shall be fited against or upon the Shopping Center or any part thereof
including wllhoullimltatlon, the Landlord's Building or the Mall Premises, Tenant shall within twenty (20) days after demand
from Landlord, cause the same to be discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fall to caus. such claim or iien or notice of claim or lien or other Charge to ba
discharged within the period afore..ld, th.n, In addition to any other right or remedy Ii may hava, Landlord may, but shall
not be obllgaled to, discharge tho sam. by payment, deposll or by bonding proceedings, and in any such event Landlon:l
shall be antllled, ~ Landlord so elects, to compel the prosecution of an action for the foroolosuro of the same by the
claimant and to pay the amount of any judgment in favor of the claimant with intemt, costs and allowances, Any amount
80 paid by Landlord and all Interest, costs and .xpen.... Including atlorneys' fees, incurred by Landlord in connection
therawlth, shall constltuta Additional Rent payable by Tenant under this Leasa and shall be paid by T.nant to Landlord on
demand. Nothing herein contained shall obligate T.nent to payor discharge any Charge created by Landlord,
(b) T.nant shall pey promplly all persons furnishing labor or materials with roSllOCt to any work by Tenant or
Tenant's contractor In or about the Promlsas. No work which Landlord permits Tenant to do shell be deemed to be for tho
immediate use and benefit of Landlord so thaI no machanlcs' or other claim, lien or other Charge shall be allowed agelnst
the estate, right, title or Interest of landlord by reason of any consent given by Landlord to renant to do work in or about
the Premises or provide materials therefor. Nothing contlllned herein shall Imply any cons.nt or agreement on the part of
Landlord to subject Lendlord's estate to liability und.r eny mechanics' or other llan law,
ARTICLE 3: TERM
Soctlon 3.01: TERM OF THIS LEASE,
The term of this Leale (sometimes herein called the "Term") means the period of the "Interim Term" (hereafter
defined) followed Immediately by the period of tho "R.nt Tonn" (herolnofter defined), The "Intorlm Tonn" means the
period commencing on the date of this Lease end ending on the dat. Immediately preceding the Rent Commancement
Date. The "Rent Term" means the period commencing on the Rent Commencement Date and ending on the Expiration
Date, as extended pursuant to Section 21.02 hereof or by agreement executed by LandlOfd and Tenant or sooner
terminated as provided herein, as the case may be. During the Interim Term, If Tenant Is not open for business in the
Premises, all of the provisions of this lease shall apply except that Tenant's obligation to pay Rent shall abate, other than
for utilities and trash charges.
Soctlon 3.02: YEARS.
The term "Y..(' m.ans each successlva twalva (12) month period from January 1 Ihrough December 31
occumng during the Term, ~us, If applicable any Partial Year, "Partial Veer" means the period between and including the
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ReQt Commencement Dele, W th.t d.te I. not J.nu.ry 1, .nd the next .ucceeding December 31 .nd, W .ppllcebie, W the
Term ends on other than a December 31, the period beginning on the last January 1 of the Term and ending on the last
d.y of the Term,
ARTICLE 4: RENT
Section 4.01: TENANT'S AGREEMENT TO PAV RENT.
Ten.nt hereby agree. to p.y for the right of use .nd occupancy of the Premise. during the Rant TBmI, .t the
time. .nd In the m.nner herein "",vlded, the Minimum Rant, Percentage Rent and AddltJon.1 Rent. As u.ed In thl. L....,
the term 'Rant' me.ns, collectively, the Minimum Rent, Percentage Rent .nd AddltiOn.1 Rent.
Section 4.02: RENT COMMENCEMENT DATE.
As used in this Lease, the term "Rent Commencement Oat." shall mean the earlfer of:
(.)
Date'); or
the date on which Tenant Initially opens Its business to the public in the Premises (the "Actual Opening
(b)
the calend.r d.te .et forth .. the Required Opening D.te In the Fund.mental Le.se Provi.lon.,
Soctlon 4.03: MINIMUM RENT.
(.) The b.se rent Tenant .h.1I p.y L.ndiord for ..ch Ve.r shall be the .mount set forth in the Fund.mental
Lease Provisions as the Minimum Rent per Year and shall be payable In twelve (12) equal monthly installments, in
advance, on the first day of each calendar month.
(b) The base rant Ten.nt sh.1I pay L.ndlord for 'IT'/ Pertl.1 Ve.r shal1 be llUIt .mount set forth in the
Fundamental Lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this Lease,
'Paltlal Vor Fraction' me.ns . traction. the numerator of which is the number of d.Y" In the appl1cabie Partial Vear, .nd
the denomln.tor of whk:h Is three hundred sixty-five (365). The bese rent p.yable for . Partial Ve.r shall be paid In aqu.1
monthly Installments, in advance. on the first day of each catendar month, except that If the Rent Commencement Date Is
not the flfSl day of . calend.r month, then that portion of .uch bese rent whk:h Is .nrlbutable to the d.Y" in th.t first partl.1
calendar month shall be paid. in advance, on the Rent Commencement Date.
(c) The b.se rent p.yable by Ten.nt pur.u.nt to Section 4.03(.) or (b), whichever is .ppllcable, Is called the
'Mlnlmum Rent' In thl. Le..e. Minimum Rent sh.1I be prorat.d for partl.' month., W.ny. K the Minimum RantlllCfe.seo
during the Rent TBmI, for the purpo.. of determining the d.t. on which Minimum R.nl incre.se(.) become effective, .
p.rtl.1 month .h.1I be dlsregardad,
(d) If, .t .ny time during the T.rm the Shopping Center .h.1I be expanded by the addnlon of ona or more
M.jors' Preml... or the Shopping Cent.r I. exp.nded by mora than 50,000 .qu.re feet of GLA, Tenant .gree. th.t the
Minimum Rent provided In the Fund.ment.1 L.... Provisions sh.1I be increesed by fifteen percent (15%) upon the dete
e.ch such .ddnlonal Majors' Premises first open. for bu.lnes. or the opening of the exp.nded Shopping Center. L.ndlord
.grees th.t the Bre.k Point sh.1I be likewise Incre.sed by fIft.en p.rcent (15%),
Soctlon 4.04: PERCENT AGE RENT.
(al In addItiOn to Minimum Rant, Tan.nt sh.1I pay L.ndlord percent.ge rent (h.reln called "Percentage
Rent") .s d.termlned by this Artlde 4, The Percentage Rant for e.ch Ve.r sh.1I be .n .mount aqu.1 to the 'Percentage"
(whioh Is .et forth In the Fund.mental Le.se Provisions) multiplied by the .mount of Gross Sales made during such Year
In excess of the .ppllcable Break Point set forth In the Fund.mental L..se Provision.. The Percentage Rent for e.ch
P.ril.1 Ve.r sh.11 be .n amount aqu.lto the Percentage multiplied by the .mount of Gross Sale. made during such Pertl.1
Ve.r In excess of the P.rtl.1 Vaar Break Point. The term 'PertJeJ Vear Break Point' shall mean .n .mount aqu.lto the
Bre.k Point multiplied by the P.rtiel Vear Frectlon for the applicable P.rtl.1 Ve.r. For the purposes of this Le..e, the
Break Point.nd Partie! Vear Break Polnl are coI1ectivaly referred to.s the .B.....k Point'.
(b) In e.ch Ve.r or P.rtl.1 Ve.r, T.n.nt .hall be obligated to pay PeroanUlge RanI beginning whh the flrst
month in which the aggregate amount of Gross Sales made for such Year or Plrtlal Year exceeds the Break Point.
Tenant sh.1I pay Pen:antage Rent (In addition to Minimum Rent .nd Addnional Rant) for each .nd every succeeding
month during the rem.lnder of such Vear or P.rtl.1 Ve.r on .11 .ddltlon.1 Gross Sales, e.ch payment of Percentage Rent
sh.1I be p.id by Tenant to Landlord without dem.nd .nd otherwl.. as set forth In this Artlc:1e 4 together with Ten.nt's
monthly statement of Gfan Sales provided for In Section 4.00, subJect to the annual adjustment provtcled for in such
Section 4,06.
(c) In the event .ny Break Point is subject to .djustments during the term of thl. Le.se, and the d.te on
which .ny .uch .dJu.tment i. to occur (her.after referred to .. the 'Rantal Ad)u_t Date') Is other th.n the first d.y
of a Ve.r, the Break Point for the Vear In whk:h the Rental Adjustment D.te shell fell shall be the sum of: (1) the Initial
Bre.k Point multiplied by. fraction the numerator of whk:h .h.1I be the number of d.Y" In the period comm.nclng on the
first d.y of the Vear In which the Rantal Adju.tment O.te shall f.lI.nd ending on the day Immedl.tely prior to the Rental
Adjustment Date .nd the danomlnator of whk:h sh.1I be three hundred sixty-five (365), plus (2) the '.tter Bre.k Point
multiplied by. fraction, the numetetor of which .hall be the number of d.Y" In the period commencing on the Rental
Adjustment Date ancl .ncIlng on the laat day of the Year In which the Rental AdJ~ltment Date shall fall and the denominator
of which sh.1I be three hundred sixty-five (365).
Itall.Jeweletl-Caplt8lCIty-KIoak..f'ln.I~Fln81
Septemller 13, 2005 \ DIDIo/CO
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Soctlon 4.05: GROSS SALES.
(a) The tarm 'Oros. S..... means tha total gross receipts and recelvablas of all marchandl.., waras and
other goods sold or _ and the actual charges for all sorvices performed, busl""ss conducted and accommodations
rendered by Tanant and by ony subtenant, 11ean..., concesslon.lre and other occupant In, at, from, or arlllng out of the
ula of the Praml..., whether wholesala or retail, whether for cash or cred~, or o~. and Including the valuo of all
consldel'lltlon other thIn money received for any of the foregoing, without reserve or deduction for inability or failure to
collect, including but not limited to sales, lea8es and services:
(I) where the orders therefor originate In. at, from or arising out of the use of the Premises, whether
delivery or performance Is made from the Premises or from some other place and regardless of the place of bookkeeping
for, payment of, or collection of any account; or
(Ii) made or performed by mall, telephone. Internet, website or similar means and orders received or
filled or delivered in. at or from the Premises; or
(iii) made or performed by means of telephonic, mechanical or other vending means or devices in or
for the Premises; or .
(Iv) which Tenant, and any subtenant, licensee, concessionaire and other occupant, In the normal and
customary course of its bUSiness, would or does credit or attribute to Its operations at the Premises or any part thereof.
Any daposlt accepted and retalnod by Tanant shall be Included in Gross Sales, Each installment or cred~ salo
shan be treated as a S81e for the full price In the month during which such sale is made, Irrespective of whether or when
Tonant recelvos paymont thorefor, No franchise, value edded tax, capital stock tax, tax besad upon assets or not worth or
gross receipt tax, and no income or sim"ar tax based on income or profits shall be deducted from Gross Sales.
(b) Only the following shall be excluded from Gro.s Sal..:
(I) any oxchango of merchandlsa between storas of Tonant when .uch oxchange Is made Sololy for
the convenient operation of Tenant's business and is not for the purpose of consummating a sale made In, at or from the
Premises;
(ill return. to suppllors, shlppars or manufacturars;
(III) cash or credit rolunds to customers on transaction otherwlso Included In Gross Sal..;
(Iv) ..Ios of fixtures, machinery and equipment, which are nol .tock for salo or trade, anor usa theroof
In the conduct of Tenant's business;
(v) amounts ..parataly stated In tho lalo. receipt and coIloctad from customers whiCh aro paid by
Tenant to any govemmentfor any sales or excise tax Imposed by law at the point of sale.
SICllon 4.06: REPORTING OF GROSS SALES; VEAR END ADJUSTMENT.
(a) Tanant .hall fumlsh to l.andlord w~hln twenty (20) days aIIer tha end of oach calondar month during tha
Term a complete statemont (the "Monthly Report"), certified by Tonant (or a roaponalblo financial officer thereof If Tonant
is a corporation), sottlng forth (I) tho amount of Gross Sal.. during such month, (U) the _to amount of Gross Sale.
during SUGh Voar (or Partial Yaar, as tha caso may be), Including such month, (III) the amount, ff any, by which such
aggregata amount of Gross Sal.. excoads the Break Point, and (Iv) tho amount of Percentage Ront provlously paid by
Tanant to Landlortl for such V_ (or Partial Yoar, as lhe ca.. may be). Tha Monthly Roport shall ba In such form and
style and contain such details and breakdown as Landlord may reasonably require.
(b) Tanant will also fumlsh to landlOrd within sixty (60) days anar tho and of each Yoar a comploto statoment
(the -V..r1y Report") certified by tho chief financial officar of Tonant, showing In re..onabla detail the amount of Gross
Sal.. during such Yoar and tha amount paid to Landlord pursuant to Section 4,04(b) for luch Year, Tho Yearly RllflOrt
.hall be aocompanled by the signed opinion of tho parson certJfylng the Yearly RIlport specifically .tating that such parson
has read the definition of "Gron hi.... contained in this Lease, th.t such person has examined the Yearly Report of
Gross Sales of such Year, that such person's examination Included such tests of Tenant's book. and records as such
person considered necessary under the circumstances, and that the Yearly Report accurately represents the Gross Sales
of such Yoar,
(c) An adJustmont shall be made with tho fumlshing of oach Yearly RIlport with respec\ to Porcentaga Ront as
follows: ff Tanant shall havo paid to Landlord an amount greater than Tanant Is required to pay as Minimum Rant and
Percentage Renl under \ho terms of Seclions 4,03 and 4,04(a), Tonant shall recelva a credit of such oxcess against
paymonts of Minimum Ront naxt becoming due to Landlord; or, ff Tanant shall havo paid an amount I..s than was
required to be so paid, then Tanant shall forthwith pay such difference, In no ovont, however, shall tho sum of tho
Minimum Rent and Percentage Ront to be paid by Tanant and retained by Landlord undor tho terms of SocIlon. 4.03 and
4.04(8) for any given Year be less than the Minimum Rent for such Year,
(d) Tha reports required by this Section 4,06 lhall be delivered to Landlord at tho notices address 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
Tonant. If Tanant shall fall to dollver any Monthly Roport andlor Yoarly Roport When duo, In eddltlon to all of Landlord's
other rights and remedies hereunder, Tenant shall pay to Landlord, as Additional Rent, an amount equal to Twenty Five
Dollars ($25.00) per day for each day such statement is overdue.
Section 4,07: TENANrS RECORDS & AUDITS.
(8) Tenant covenants and agrees that the business records of Tenant and of any subtenant, licensee or
concessionaire shall be maintained In accordance with generally accepted accounting principles. Furthermore, Tenant
shall keep at all times during the Term, at the Premises or at the hOme or regionat office of Tenant, tu" complete and
accurate books of account and records In 8ccordance with generally accepted accounting practice with respect to all
operation. of the busln..s conducted In or from the Preml..., Including tho recording of Grosl Sol.. and tho ,"""Ipt of all
mercnondl.. and other goods Into and the dollvery of all merchandl.e and other goods from tho Proml... during tho
Term, and shall retain such books and records, copies of all tax reports and tax retums submitted to taxing authorities, as
well as copies of contracts. vouchers, checks, inventory records and other documents and papers In any way relating to
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Septambar 13, 2005 \ OIOloICO
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th~ operation of such busln.ss for at l.a5tth,"" (3) years from th. .nd of th. period to which th.y are applicabl., or Wany
audtt Is required or a controversy should arls. between the pertl.s her.to reg.rding the R.nt payabl. hereund.r, until such
audtt or controversy Is terminated ev.n though such retention period may be aft.r the .xplration of the Term or .arli.r
termination of this l...., Such books and records shall be open .t .11 r.esonable tim.s during th. Mor.sold ret.ntlon
period to the Inspection of landlord or Its duly authorized repras.ntativ.s, who shall heve full end free access to such
books and records end the right to require of T.nant, Its agents and employees, such information or .xplanation and audtt
thereof and th. right to require T.nant to mek. such books, r.cords and oth.r mat.rlals which T.nant is required to r.taln
available at the Premises for such examination and audit.
(b) Th. .cceptance by the landlord of paym.nts of P.rcentage R.nt shall be without pr.judlc. to the
Landlord's examination and audIt rights hereunder. Landlord may at any reasonable time, upon ten (10) days' prior written
notice to Tenant. cause a complete audit to be made afTensnt's entire books. records and other materials which Tenant is
required to retain (including the books and records of any subtenant, licensee. concessionaire and otner occupant) for all
or any part of the three (3) year period immedlat.ly preceding the day of the giving of such notice by landlord to T.nant. If
such audit shall reveal a deficiency in any payment of Percentage Rent. Tenant shall forthwith pay to Landlord the amount
of the defICiency. .
(c) If such audtt shall disclose that (I) any of the V.arly Reports underlltat. Gross Sales during the r.porting
period of the report to the extent of two percent (2%) or more; or (II) Tenant has not recorded Grols Sales, or kept books
of account and records, as and for th. period required by this Section 4,07; or (Iii) W Tenant shell be dalinqu.ntln delivering
to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or more than twice in any Year or Partial
Year, then such understatement, failure or delinquency shall be an Event of Default. In addition, in the event of such
understatement or faUure, Land\ord shall have the right to bill to Tenant the amount of any deflciency in Percentage Rent
and the reasonable cost of s.1d audn which shall be paid by T.nant within ten (10) days after d.mand which defici.ncy will
bear int.rest at the "Default Ret." (daftned In Section 16,03 hereof) from and aller the date il should have been paid until
paid,
(d) In the event Tenant vi~ates the provisions of Sections 4,06 or 4.07 or both Bnd as a result of such
violation, Landlord, or its duty authorized representatives, is unable to conduct a proper examination and/or audit, the
perlies agree th.t landlord shall have been deprived of an Important right under this l.ese and, as a r.sult thereof, will
suffer damages in an amount which Is not readily ascertainable and thus, in such event, Landford, in addition to and not in
Ii.u of any other r.medies which landlord he. under this l...., at law or In equity, shall have the right, at lis opllon, to
collect, as liquidated demages and not es a penalty, an amount equal to twenty percent (20%) of th. great.r of (i)
percentege Rent r.ported for the period or periods In qu.stlon, or (II) the annuel Minimum R.nt peyabl. for th. period or
periods in question. T enent agrees to pay such liquidated damages.
Section 4.08: ADDITIONAl RENT.
In addition to Minimum R.nt and Percentage Rent, Tenant shall pay, as addnlonal rent (her.in som.tim.s
collectively called "Additional Rant") all oth.r amounts, sums of money or charge. of whetsOev.r nature required to be
peld by T.nant to landlord pursuant to this ~.as., wh.ther or notth. sam. Is designated os "Additional Rant". The
terms "Tax.s", "Tax Charge", "CAM Sum" and "CAM Charge" are daftned in Articles 5 and 8, respectively, In computing
the Tax Charge, the CAM Charge and any other charge to T.nent computed on the sam. or substantl.lly slmller basis es
the Tax Charge or the CAM Charge (collectively "Olhar Llk. Ch.rgaa"), the net payments by the occupent of the Majors
and Junior Majors to landlord loW8rd the Taxes, the CAM Sum or the sums on which Other like Charges .re bas.d
(collectlv.ly the "OLC Sums") shell be applied r.specll,eiy to reduce the Taxes, the CAM Sum and the particular OlC
Sum before apportlonm.nt and d.termlnetlon of the Tax Charge, CAM Charge or Other llk. Charge to be paid by T.nant
and for the purpos.s of computing th. Tax Ch.rge, the CAM Charge and such Other lIi<e Cherge, the denominator of the
GLA Fraction shall not include the GLA of the Majors' Premises and the Junior Majors' Premiaes.
Section 4.08: WHERE RENT PAYABI.E AND TO WHOM; NO DEDUCTIONS.
R.nt payabl. by T.nant und.r this leese (whether Minimum Rent, Percentage Rent, or Addnlonal R.nt) shell be
paid when due without prior d.m.nd therefor (unl.ss such prior d.mand Is .xpre.sly provided for In this l.as.), shall be
payable without any declucUons or setoffs or counterclaims whatsoever (except for credits expressly permttted by this
Lease) and shan be paid by Tenant to Landlord at the payment address of landlord set forth In the Fundamental Lease
Provisions or to such payee and/or at such other piace as may be designated from time to time by notice from Landlord to
Tenant. At the end of the Term, provided Tenant Is not In default, Landlord shall refund to Tenant any amount of excess
Rent paid to Landlord and any other amounts due from Landlord to Tenant. Any Rent, or Installment thereof, which is not
paid by Tenant to landlord within s.ven (7) cal.ndar deys after tt Is due shall beer int.rest at the OefllUit Rate, In th.
event any installment of Minimum Rent or other sum under this Lease shall not be paid when due, a "L8te Charge" of five
cents (S.05) per .ach dollar so ov.rdue may b. charged by landlord. .s Additlon.1 R.nt, for the pul1lOO. of d.fraying
Landlord's administrative expenses incident to the handling of such overdue payments. If Tenant pays any InstaUment of
Rent by check and such check is returned for Insufficient funds or other reasons not the fault of Landlord, then Tenant
shall pay landlord, on demand, a processing fee of One Hundred Dollars ($100.00) per returned check plus ell .ppllcabl.
lat. Charges and W three (3) checks .re returned for insufficient funds or other r.e.ons not the fault of landlord, all
subsequ.nt paym.nts to landlord by Tenant shall be In the form of .ither a certified or cashier's check,
ARTICLE 5: TAXES AND ASSESSMENTS
SKtlon 5.01: TENANT'S TAX CHARGE.
(a) Tenant shell pay to landlord In .ach calendar year, as Additional R.nt, T.nant's share of all real estate
and other ad valorem taxes and other assessments, Impositions, excises and other governmental or qU8sJ..governmental
charges of .v.ry kind and neture (including. but not limited to, generel end special ...essm.nts. sewer end fire district
assessments, foreseen a. well a8 unforeseen and Ordinary as well 81 extraordinary) with reapect to the Shopping Center
and all Improvements thereon or any part thereof, Such tax.s and ass..sm.nts are collecllve1y called th. "T"".." In this
Lease. Tensnrs share of the Taxes in each calendar year (the 'Tax Charg.") shall be an amount equal to the product
ItellaJewelers-C8pIt8ICMyoot(101k-Fln81.Flnal
~_bef 13, 2005 \ DIDIo/CO 10
obtained by multiplying the Taxes applicable to such calendar year by the GLA Fraction (with daily proration for any Partial
Year). "T..... ahall alao Include Landlord's reasonable costs and expenses (including statutory interest, if any) in
obtaining or attempting to obtain any refund, reduction or deferral of Taxes.
(b) Notwfthstandlng the provisions of Section 5,01(a), Tenant's Tax Charge for 2005 shall be Two and 181100
($2,18) Dollars per Iquare foot of GLA of tha Premises, Lendlord and Tenant agree that Tensnrl Tax Charge for 2006
shall equal the amount per square foot for 2005 plus five percent (5%), and further, that any subeequent Vear's Tax
Charge shall be equal to the Immediately preceding Vea~s payment plus five percent (5%) of such payment.
Section 5.02: PAVMENT BV TENANT.
(a) Payment of tha Tax Charge required under this Article 5 shell be paid by Tenant in equal monthly
installments In advance In such amounts as are provided in Section 5.01. The firstluch inltallment shall be due and
payable by Tenant on the Rent Commencement Date (prorated for the remaining number of days In the calendar year)
and subsequent installmentf; shall theresfter be due and payable at the beginning of each ensuing calendar month during
the Term.
(b) Deleted,
Soctlan 5.03: TENANT'S ADDITIONAL TAX OBLIGATIONS.
(a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other
charges levied, asseased or Imposed by governmental or qUBsi-govemmental authority upon Tenant or its business
operation, or based upon the use or occ:upancy of the Premises, or upon Tenant's leasehotd Interest, value of the ktosk,
trade fixtures, furnishings, equipment, leasehold Improvements (Including, but not limited to. thase required to be made
pursuant to Tenanrs Work) alterations, change. and addnlons made by Tenant, merchandise and personal property of
any kind owned. Installed or used by Tenant In, from or upon the Premises, ~ the pr<lll8r\y of Landlord is included In any of
the foregoing items, the aforesaid taxes, assessments, Imposnlons, exelses, fees and other charges shell nonethale.s be
paid by Tenent as hareln provided, Tenant shall pay, when due and payable, any sales tax, or othar tax, assessment,
Impo.ltlon, excl.e or ather charge now or hereafter levied, assessed or Imposed upon or agelnst this Laase or any Rent or
other sums paid or to be paid hereunder, or Tenant'., Landlord's or Agent's interest In this lHee or any Rent or other
sums paid or to be paid h......nder, Should the appropriate taxing _ty require that any tax, ......ment, lmposnlon,
excise or other charge referred to in this SectIon 5,03(a) be collected by Landlord or Agent for or on beha~ of such taxing
authority, then such tax, assessment, Imposnlon, excise or other charge shall be paid by Tenant to Landlord or to Agent
monthly as Additional Rent In accordance with the terms of any notice from Landlord or Agent to Tenant to such effect.
The taxes. asse.sments, Imposnlons, excises, fees and other charges described In this SectIon 5.03(a) shall be the
obligation of Tenant and not Landlord or Agent. ~ any tax, assassment, Imposnlon, excise, fee or other charge covered by
this Section 5,03(a) Is Imposed on Landlord or Agent, Tenant shall pay the .ame to Landlord wnhln thirty (30) days after
receipt of each bill therefor,
(b) Deleted.
ARTICLE 6: SERVICES
Section 6.01: UTILITIES,
(a) During the Term, Tenantlhall be .olely responsible for and promptly pay all charges for heat. water,
electricity, .ewer rents or charges. sprinkler charges, A,D,T. or other alarm system, water treatment facility charges, and
any other utility used or consumed In the Premises or In providing heating and air conditioning to the Premises together
with all connectiOn and service charges and all taxes or other charges levied on such utilities. Should landlord elect or be
required to suppfy or make available any utility used or consumed at the Premiaes, Tenant agrees to purchase and pay for
.ame, as Additional Rent, every month In the Term; provided that Tenant shall not be obligated to pay to Landlord an
aggregate annual sum therefor in excess of the aggregate annual amount therefor which Tenant would otherMse be
obligated to pay for similar utility usage and se",lce as a retail cUltomer of the public utility or municipal authority then
supplying such utility to the Shopping Canter, In edditlon, Tenant shall allo pay any taxes, surcherges, Impollllons,
panaltJas or other eddnlonal charges applicable to the utility service being supplied, provided thai such taxes, surcharges,
Imposlllons or other chargel are required by law to be collected from Tenant or are paid by Landlord to lto supplier of tha
utility service In question. Landlord may. at Its option, Install an Energy Management Syetem to efficIentiy conlerve utility
usege and Tenant agrees to pay monthly, the lum of Fifty ($50,00) Dollars as T.nanh Ihere of the Energy Management
System purchase, Installation, m.lntenanCII and upgrede costs, ~ permitted by law. Landlord shall have the right at any
time and from time to time during the Term to either contract for service from a different company or companies providing
utility service to the Shopping Center,
(b) In the event the Premises does not presently contain an electric or other utility meter, at landlord's
request, Tenant shall, within forty-five (45) days after recelpl of such request and at Its sole cost and expense, install a
meter of a type approved In advance by Landlord, Thereafter, at Landlord's request, Landlord and Tenant shall enter Into
an amendment to this Lease speclfytng the procedures for reading such meter and the rendering of bills to Tenant for the
utility being so metered. In the event Landlord or tha local authority, municipality, utility or other body .uQlllIe. weter end/or
sewer services and collects for such service and/or consumption, Tenant covenants and agrees to pay the water and
sewer charge (both minimum and otherwise) and any other tax, rent, levy, connection fee or meter or other charge which
now or hereafter II assessed. Imposed or may become a lien upon the Premises, or the Shopping Center, pursuant to law,
order or regulation made or issued In connection wjth the use, consumpUon, maintenance or supply of water, or the water
or sewerage connection or system. Such charges shall be based on metered readings or other formula specified by
Landlord.
(c) Landlord shall not be liable or responsible for any 108S, damage or expense Tenant may sustain or incur
by reason of any change, failure, curtailment, Interruption, disruptIon, 'brown out" or defect in the supply or character of any
utility supplied to the Shopping Center or Premises or ~ the quantity or character of the utility supplied by Landlord or any
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Sop_ber 13, 2005 \ OI0101CD 11
se~lce provider IS no longer available or sunable for Tenant's requlraments and nona of the foregoing shall constitute an
actual or constructive eviction or entltte Tenant to any abatement or diminution of Rant or relieve Tenant from any of its
obUgatlons under this Leale. Tenant shall operate the Premises In such a manner as shall not waste energy or water or
burden or damage the utlUly lines therein.
(d) Landlord may, after thirty (30) days notice to Tenan~ cease to furnish any ona or more of the utility
services to the PremIIl88. without any responsibility to Tenant, except to connect at Tenanrs sole cost and expense,
Tenant's distribution facilities therefor with another source for the utility service so discontinued.
(e) Notwithstanding the proviSions of this Seollon 6,01, Landlord and Tenant _by agree that Tenant shall
pey a set charge of Fifty Dollars ($50,00) per month on the first (1") day of every month of the Tarm of this Lease as
Tenant's charge for electricity usage at the Premises.
Soctlon 8,02: APPLICATION FOR UTILmES.
Tenant shall make all appropriate applications to the local utility companies at such times es shall be necessary to
insure utilities being available at the demised premises no later than the commencement of the term and pay all required
deposits, connaction fees andlor charges for meters within the apPllcable time period set by Ihe local utility company.
Section 6.03: TRASH AND GARBAGE REMOVAL.
Tenant shall be solely responSible for trash and garbage remoyal from the Premiaes, Including the placing of all
trash and garbage in containers provided by Landlord for such purpose. In the event Landlord elects to furnish such
service to the tenants In Landlord's Building, Tenant agrees to use only the service provtded by Landlord and to pay for
such service (including, without limitation, both the cost of leasing containers and the cost of removal) monthly, as
Add"lonal Rent, In accordance with a schedule of charges to be established by Landlord (the "ReIu.. Handling Cha'll.").
In no event shall Tenanl be obligated to pay Landlord more for the Refuse Handllng Charge than the pl'evalllng competitive
rates of reputable independent trash removal contractors for service similar to that provided by Landlord. Tenant shall not
dispose of any hazardous materials or environmentally sensitive or restr1cted Item of waste in any trash facilities provided
by Landlord, and In lieu thereof, Tenant shall arrange, at lts lOIe cost and expense, to have .11 such items removed from
the Premises and Shopping Center In accordance with all Governmental Requirements (hereinafter defined).
ARTICLE 7: USE OF PREMISES
Soctlon 7.01: SOLE USE AND TRADE NAME.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall contlnuoully use and operate all of the
Premises for the use set forth In the Fundamental Lease ProVisions and under Tenant's Trade Name set forth therein.
Tenant mey change Tenant's Trade Name with the prior writt.n consent of Landlord which consent shall not be
unreasonably withheld. conditioned or delayed. Tenant shall confmlhal such new Trade Name does nOl violale any
trademarks. Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name
wilhout the pl'ior written consent of Landlord. Tenant agrees that ~ Tenanl or anyona else claiming through or under
Tenant uses the Premises for a use or trade name not set forth In the Fundamental Lease Provisions without Landlord's
prior written consent. such conduct shall constitute an Event of Default. Tenant shall, at Its expense, procure any and all
govemmentallicenses and permits, including, without limitation, sign permits. required for the conduct of business in or
from the Premises and shell, at all times, comply with the requirements of each such license and permit. Landlord does
not represent or warrant that It will obtain for Tenant (or that Tenant will be able to obtaIn) any license or permit.
Provided that Tenant Is operating In the Premises for the Use described In Fundamontal Lease Provision In} of
this Lease and Tenant Is not In Default In any of the terms of this Lease, then Landlord shall nOllease any kiosk in the
Shopping Center within twenty (20) feet of the Premises for the Use set forth in Fundamental Lease Provision (n).
Soctlon 7.02: HOURS.
Tenant covenants and _ that throughout the Rent Term, Tenant shell continuously operete, conduct Its
business wtthln and otherwise use the Premises In accordance with the terms and conditions of this Lean, including,
wilhout limitation. the provisions of Seollon 7,01 hereof and all of the other provisions of this Article 7 (unless the Premises
are rendered unfll for occupency by reason of fire or other cesualty, in which event Arttcle 12 shell control). Tenant will
keep the Premises open for business to the public at ieast: (a) every Monday through Saturday from 10:00 a.m. un11l9:30
p.m.; and (b) also on Sunday from 11:00 a,m, until 7:00 p,m, (unl88s prohibited by Jurlsdlctlonel authorities) as required by
LaI'Idlord. In addillon 10 any other righlor remedy, the Break Point shall be reduced, at Landlord's option, on a per diem
basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord.
The per diem reduction shell be the amount of the applicable Break Poinl divided by 360 for _h violation. Tenant agrees
that Landlord may change the fOl'agOlng buslnass hours from time 10 time to reftecllocal custom or seasonal shopping
patterns provided that such changes are un~ormly epplled to the majority of retail tenants In Landlord's Building. Tenenl
shall not be required to keep the Premises opan during hours when the Enclosed Mall Is closed to the public. The
requirements of this Section 1.02 are subject, with respect to any business controlled by governmental regulations in Its
hours of operation, to the hours or operation 80 prescribed by such governmental regul8tions and are further subject to
applicable federal, state. and local environmental and other laws, rules, or regulations, guidelines, Judgments or orders.
Soctlon 7.03: OPERATIONAL REQUIREMENTS.
Tenant agrees that it:
(8) will not In connection with the Premises conduct or permit to be conducted any auction, fire, bankruptcy or
goIng out of business sales, or similar type sale, or utilize any unethical method of business; provided, however, that this
ItaIl8JeweI.rs-.capltalCIty-KloIk~Fln8I-Fln81
Sop\emb8r 13, 2005 \ DIDloICD
12
provision shall not restrict the absolute freedom (as between Landlord and Tenant) of Tenant to determine its own selling
prices nor shall It preclude the conduct of periodic, seasonal, promotional or clearance sales;
(b) will not use or permit the use of any apparatus for sound and/or light reproduction or transmission
Including loudspeake~, phonographs, radios or televisions, or of .ny musical instrllment In such m.nner th.t the sounds
so reproducad, transmitted or producad shell be .udible beyond the Interior of the Premises; will not distribute, or c.use to
be distributed, .t the Shopplng Center or in .ny p.rt thereof .ny handbills or other advertising or notlcae; .nd will not
conduct or permft any .ctivlties th.t might constitute. nuisance, or which ere prurient or otherwise not gener.IlY
considered .ppropriete In accordanca with standards of operation for tha Shopping Center established by L.ndlord; will
not Install any antennae or other communication equipment on the roof of Landlord's Building or anywhere on the exterior
of the Premises;
(c) will keep all mechanical appar.tus free of vibration and noise which may be transmitted beyond the
contines of the Premises: will not cause or permit strong, unusual, offensive or objectionable sound, sights, odors, fumes,
dust or vapors to emanate or be dispelled from the Premises;
(d) will not load or perm II the lo.dlng or unloading of merchandise, supplies or other property, nor ship, nor
receive, outside the area and entrance designated therefor by Landlord from time to time; will not permit the parking or
standing outside of said area of trucks, trailers, or other vehicles or equipment engaged in such loading or unloading in a
manner which may interfere with the use of any Common Areas or any pedestrian or vehicular use and good regional
shopping center practice: will use Its best efforts to comptete or cause to be completed all deliveries, loading, unloading
and services to the Premises prior to 9:30 a,m. each day;
(e) will not paint or decorate any part of the exterior or Interior of the Premises, or change the architectural
treatment, flxturing, decor or other appearance of the Interior or exterior of the Premises, without first obtaining Landlord's
written .pprov.1 of such p.inting, decoration or change; .nd will remove promptiy upon order of Landlord .ny p.int.
decoration or change which has been applied to or Installed upon the exterior or Interior of the Premises without Landlord's
written approval;
(I) will keep the Inside .nd outside of all glass In the doors and windows of the Premlsas clean .nd will
replace any cracked or broken glass with glass of the same kind, size and quality; will maintain the Premises at its own
expense in a clean, orderly and sanitary condItion and free of insects, rodents, vermin, and other pests and will use an
exterminator designated by Landlord and at times designated by Landlord; will not burn or permit undue accumulation of
garbage, trash, rubbish and other refuse; will (subject to Section 6.04) remove the same from the Premises to compactors
or other receptacles designated by Landlord, and will keep such refuse In proper containers in the interior of the Premises
until so removed from the Premises;
(g) will comply with all .ppllcable federal, state .nd local environmental and other laws, rul.., roguletions,
guidelines, judgments and orders and all recommendations of any public or private agency havtng authority over insurance
rates which now or in the tuture enact requirements with respect to the use or occupancy of the Premlles by Tenant,
including, without limitations the requirements impoaad by the Americans with Dls.blllties Act which Impoaoa requirements
relating to the d..ign .nd use of tha Promis.. and tha requirements imposed by tha CIe.n AIr Act which imposes, .mong
othe~, requiraments relating to the venting, use of, .nd dlspos.1 of chlorofluorocarbons and other refrigerants (COllectively
the .Governm.ntal R...ul......n18.); will not use or permit the u.. of any portion of the Premis.. for .ny unlawful
purpose: and will conduct Its business in the Premises 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 security within Its Premises as it deems appropriate:
(I) wIll also comply with and observe all rules and regulations established by Landlord from time to time in
accordance with Section 8.05;
(j) will not permit the use of any portion of the Premises for solicitations, demonstrations or any activities
Inconsistent with reasonable standards of a first class shopping mall;
(k) will not use, or permit to be used, the malls or sidewalks .djacant to tha Premi..s, or any other speee
outside of the Preml... for the dls~ay or sale or offering for sale of any merchandise or for any other business,
occupation or undertaking;
(I) will provide or cause to be provided within the Premises, without cost or expense to Landlord, adequate
lighting and security for its licensees, invltees and employees during such periods as the Premises are open for business;
(m) will maintain at all 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 its business to maximize Gross Sales;
(0) if the Term exceeds sixty (80) months, will within ninety (90) days before or after the fifth (5th) anniversary
of the Rent Commencement Date, at Tenant's sole cost and expense, remodet and/or refurbjsh andlor replace the kiosk in
a manner approved by Landlord. All of the provisions of this Lease which apply to Tenant's Work including, without
limitation, those for Fin.1 Plans and Completion Certificate, shall.pply to the remodeling;
(p) will conduct Its labor relations and its relations with employees In such a manner as to avoid all strikes,
picketing, boycotts or hend billing at or .bout the Premi..s .nd the Mall Promises, ren.nt further .g..... th.t W, durtng the
period of any work by or for Tenant In or about the Premlses In connection with such work there is a strike, picketing,
boycotting, hand billing or other activity objecUonable to Landlord, Tenant shall remove or caule to be removed from the
Premises and the Mall Premlaes 811 persons, to the extent not prohibited by law, until such strike, picketing, boycotting,
hand billing or other activity ceases and the cause thereof is seWed to Landlord's satisfaction;
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September 13, 2005 \ DIDIo/CD
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(q) will not, without obtaining Landlord's prior written approval, which approval may be w~hheld In Landlord's
discretion, Install any storage or propane tank, whether above or underground, at the Premises or In the Shopping Center
and ff Landlord shall consent to such Installation, Tenant will comply with all appllcabie IOWI, regulations and underwr~er
requirements concerning the Installation, operation, and closure of such tank, Upon termination of this Lease, Landlord
shall have the option of requiring that Tenant, at Tenanrs sola coat and expense, perform tests relating to the condition of
such tank and/or remove any tank Installed by Tenant and associated contaminated material. Tenant shall be deemed the
owner and operator of any tank Installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tenant's
expense, to another location acceptable to Landlord;
(r) will not Install, or permit to be installed or operate any coin or token operated vending machine, game
machine, pinball machine, pay telephones, pay lockers, pay toilets. scales, amusement devices and machines for the sale
of beverages, foods, candy, cigarettes or other commodities, except solely for use by Tenant's employees In non sales
area and not to exceed collectively t\YD (2) machines or other devices; and
(5) will not store, display, rent or sell any audio or video cassettes;
(I) will not, without Landlord's prior written consent, place or maintain any article in the Common Area or
elsewhere on the exterior of the kiosk; and
(u) Tenant speclflcally agrees that both the general appearance of the kiosk and the manner in which
Tenant's merchendlse Is displayed shall meet the standards of a fi",t-<:la.. regional shopping center. In the event that
Landlord shall give wrillen notice to Tenant of Landlord's objection with respect to e~her or both of the aforesaid matte",
and Tenant, within sixty (80) days of such writtan nottca, falls to cure the obJectlon to Landlord's satlsfactlon, Landlord shall
have the right, in addition to all other rights and remedies set forth herein, to declare Tenant to be in default of the Lease.
Section 7,04: TENANT'S USE OF ROOF, EXTERIOR WALLS, ETC,
Notwithstanding Tenant's rights set forth elsewhere In this Lease, Landlord may erect additional stories or other
structures over all or any part of the Premises, Landlord's Building and any other pert of the Mall Premises. In connection
with such erection, or otherwise. Landlord may relocate Tenant's equipment and may erect temporary scaffolds and other
aids to such construction at Landlord's sole cost and expense.
Section 7.05: OPERATION OF HVAC SYSTEM,
Oeletad.
Section 7.08: EMPLOYEE PARKING AREAS.
Landlord may, from time to time, designata that particular porllons of the Shopping Center parking areas (tha
"Employee Parking Areu') are to be used by Tenant and its employees, or other Individuals working at or from the
Premises, If Landlord does so, Tenant and ns employees shall park their vehicles only In the Employee Parking Areas.
Tenant shall furnish Landlord with allsl of Tenent's and employees' vehicle license numbe", within flftaen (15) days after
Tenant opens for business In the Premises, and at Landtord's request, the Tenant shall thereafter notify Landlord in wrttlng
of any addition, deletion or other change to or from such list within five (5) days after Landtord makes such request.
Tenant shall notify each employee in \NI"ltIng of the provisions of this Section 7.06 prtor to each employee commencing
employment or work at or from the Premises, If Tenant or any of ns employees do not perk their vehicles In the Employee
Parking Areas, Landlord may give Tenant notice of such vlolaUon. If Tenant does not cease such vJolatlon, or cause such
violation by the employee to cease, as the case may be, within two (2) days after Landlord's notice of violation Is given,
Tenant shall pay to Landlord, as Addnlonal Rent, an amount equal to Twenty Fiv. OoIla", ($25.00) per d.y per vlol.tlng
vehicle, For any subaequ.nt violations, said Twenty Five Oolla", ($25.00) per day per violating vehicle charge shall
commence without the neceaalty of further notIce, and Landlord shall, In addition, have the right to have the violating
vehides towed at Tenant's expense.
Section 7.07: NON.cOMPETmON COVENANT.
Deleted,
Section 7.08: SIGNS AND ADVERTISING.
Tenant shall not place or permn to be placed on the kiosk, any sign, banner, decoration, lettering or advertising
matter (collectively a 'algn') without the Landlord's prior written approval. Tenant shall submn to Landlord reasonably
detailed drawings of Ita proposed signs for review and approval by Landlord prior to utiliZIng same; however, Tenant may
without such approval use In the store front professionally mede reasonably sized signs Indlceting prices. styles and like
Information. All signs shall be insured and maintained at all times by Tenant In good condition, operating order and repair.
Flashing signs are prohibited.
Landlord shall have the right, after twenty-four (24) hou", prior written notice to Tenant and without liability for
damage to the Premises reasonably caused thereby, to remove any Items displayed or affixed In or to the Premises which
Landlord determines (In Its reasonable judgment) to be in violation of the provisIons of this Section 7 .Q8.
Tenant will keep the storefront sign and display windows in tha Premis.. lighted during ali periods that the
Shopping Center Is open to the public and for one-haff hour after required business hou", and for such other periods as
may be reasonably required by rules and regulations established In accordance with Section 8.05.
ItaUaJewele,...capItaICtty.Kioek-FlnaJ-Flnal
September 13. 2005 \ DIDIo/CO
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ARTICLE 8: COMMON AREAS
_on 8,01: USE OF COMMON AREAS.
(a) Tenant end Ita employees and invltees are, axcept as otherwise specifically provided In this Lease,
authorized, empowered end privileged during the Term to use the Common Areas for their respectJve Intended purposes
In common with other persona. Ten.nr. right to use any meettng room or auditotiUm, if any, In the Common Areal ahall
be subject to such schedules and payment of such fees or chargas tharefor as Landlord may from time 10 time adopt
govemlng the use thereof.
(b) Landlon:l ahell at all times have the right to utilize tha Common Areas including, withoYt limitation, the
Enclosed Mall for promotions, exhlbita, carnival type shows, rid.., outdoor shows, dlaplaya. automobile and other showa or
evenla, the leasing or Ilcenllng of kiookl, push certa end food facllll,"s, landscaping, _ng a..... aeaoonal dllplaya,
d.coratlve lIems. and any other ule which, In Landlord's Judgment, londs to e\tract cullom... 10, or benefit the customers
of the Shopping Cenlor,
SectIon 8.02: COMMON AREA MAINTENANCE SUM.
(a) The term "Common Area MaIntenance Sum" (or the "CAM Sum") Ihall be charged and prorated In the
manner hereinafter set forth and shall mean all sums incurred in a manner deemed by landlord to be reasonable and
appropriate and for the best Interests of the Shopping Cenlor in connection with the operation and mainlenance of the
Common Areas and the Shopping Center (and any additions thereto), including, without limitation, the costs and expenses
of:
(I) operallon, inspection andlor malntananca of the storm, sanitary, electrical, gas, steam, water,
telephone syalams, lighUng syatem (Including poies, bulbs, and fixtures), and other utility syaloms, Including pipes, ducts
and similar items; directional signs and other trafflc signals, markers, controls. signs (including all identification signs) both
on and off site:
(il) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and
repaving aU parking surfaces, services areas and other portions of the Common Areas;
(ill) operation andlor maintenance of all heating, ventilating and air cooling and other utility systems,
emergency water and sprinkler, security, life safety systems, pumping systems, electrical systems and all escalator and
elevator systems and any other Items, facUlties, equ\pment. and systems furnished by Landlord as part of the Common
Areas;
(iv) premiums and other charges for insurance to the extent provided by Landlord, inctuding without
limitation, liability insurance for personsl Bnd bodily Injury, death and property damage; insurance covering Landlord's
Building and the Common Areas against fire and extended coverage perils; theft or casualties; workers' compensation;
plale glass Insurance for glass excluslvaly serving the Common Areas; boiler insurance (W carried); losses borne by
Landlord as a relUlI of deductlbles or seW-Insured ratentlons carried by Landlord under en Insurance policy or seW
Insurance by Landlord; Landlord's risk management expenses and rent insurance prov\ded by Land'lord pursuant to
Section 11,02;
(v) operation and/or maintenance of gazebos, fountains. art features. sculptures, fencing and similar
Items located within the Common Areas and Interior and exterior planting, replanting and replacing of all flowers,
shrubbery, plants, treea and other landscaping within the Common Arees;
(vi) operation andlor maintenance of Landlord's Building's struetura, including, without limitation,
fioors, doors, walls, ceiling, roofl, Ikylighla, and windows;
(vii) malntanance and depreciation of all machinery and equipment used In the operation or
maintenance of the Common Areas (Including but not limited to all escalators, elevators and other ve"leal transportation (W
any), security vehk:les 8nd equipment) and all personal property taxes and other charges Incurred in connection with such
machinery and equipment;
(viii) all license and parmlt fees, any and all parking surcharges that may result from any environmental
or other IIW$, rules, regulations, guidelines or orders;
(Ix) the expense of Installation and operation of loudspeaker systems, music program services, cable
television systems. or similar audio or video transmission systems;
(x) personnel, Including without IImltaUon, cleaning and malnlonance personnel, Landlon:l's
management staff [which Includas the aaneral Manager, Asslltant Manager, secretarias, bookkeepers and accountants
(regardless of where the aforesaid personnel are localed)) together with the unWorms, payroll, payroll taxas and employee
benefots of all such personnel;
{xl} the expense of security personnel and equlpment, including, without llmltatlon, uniforms as well as
transportation and surveillance equipment;
(xii) all costs, charges, and expenses Incurred by Landlord In connection wllh eny chenge of Ihe
Idantlty of the utility provider to the Shopping Center;
(xiii) Landlord'. supervisory cherge In an amount equal 10 fift_ percenl (15%) of the totoll aggregate
cost of operating and malntalning the Common Areas, including but not limited to those things listed In Section 8.02(a);
and
(xiv) expanding, adding to or reconflguring the Common Areas (or any portion thereof).
(b) Notwithstanding tile foregoing, the CAM Sum shall not include:
(I) the expense of any repair or replacement required of L.andlord pursuant to the reconstruction
obligations of Section 12.01;
(Ii) depreclaUon (other then depreciation as abova specified); and
(iii) any utlllU.. whlch are directly metered or submetered 10 tenanls in Landlord's Building.
(e) Deletad.
(d) Deleted.
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September 13, 2005 \ DIOloICO
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(oj n Landlord from time to time acquires, or makes available, addnlonalland or Improvements for parking or
other Common Area purposes, the CAM Sum shall also Include aU COlts and expenses incurred by Landlord in connection
with tho oparation or maintenance of said addlllonal land and Improvements.
(I) The words "melntanence", "maintain" or "maintaining' as used in this Article 8 includes, wlthoulllmnatlon,
all repairs, replacements and other work and service of any type whatsoevar.
SllCltlon 8.03: CAM CHARGE.
(a) Tenanl shaIi pay 10 Landlord, as Addllional Rent, Tenanh share of tho CAM Sum in the manner set forth
in Section 8,03(b) and (c) below, Tenant's share of tho CAM Sum for each calandar yoar shall be an amount equal to the
CAM Sum for that period multiplied by tho GLA Fraction {the "CAM Ch_"}, For any Partial Yaar, tho CAM Sum will be
munlplled by the Partial Year Fraction with the result multiplied by the GLA Fraction.
(b) Tenant shail pay Landlord on the Rent Commencement Date and on tho first day of each calendar month
In the Term thereafter amounts estimated by Landlord to be Tenant's monthly share of tho CAM Sum. Tenent's CAM
Charge for 2005 shall be Ten and 471100 ($10,47) Dollars per square foot of GLA of the Preml.... Landlord and Tenant
agree that Tananrs CAM Charge for 2006 shall equal the amount per square foot for 2005 plus flve percont (5%), and
further, that any subsequent Yea~s CAM Charge shall be equal to tho Immedlalely preceding Yaar's payment plus five
percent (5%) of such payment.
(c) Oeleled.
(d) Landlord may have heretofore elected 10 spread, and may hereafter elect to spreed, the amount of any of
the expenses of the CAM Sum over such period of years as Landlord shall determine by amortizing them over such
periods insteed of Including such expenses entirely In the yoer In which expended or IncuITed, In which event, Ihe annual
amortization amount shall be deemed to be an expense incurred during each year of the amortization period,
notwithstanding that such expenses may have been expended or incurred prIor to the execution of this Lease.
SllCltlon 8.04: CHANGES BY LANDLORD.
As between Landlord and Tenant, Landlord shall at all times have the right and privilege of daterminlng the nature
and extent of the Common Areas and of making such changes, rearrangement, additions or reductions \herein and thereto
from time to time which in its opinion are deemed to be desirable or which are made 8S a result of any feelersl. state or
local envlronmanlal or other law. rule, regulation, guldaline, Judgment or order, Including but not limited to, the location,
ralocallon, enlargement, reduction or addlllon of driveways, entrances to the Landlord's Building andlor Shopping Center,
automobile parking spaces, employee and customer parking areas (If any), the direction Ind flow of traffic, installation of
escalators and elevators, landscaped areas, and any and all other facilities of \he Common Araas, Landlord (or Its
designees) may from time to time make alterations, renovations, reductions. or additions anywhere within Landlord's
Building or to the Common Areas or other part of the Shopping Center or any lands or improvements added thereto,
construct addnlonal buildings or Improvements on the Common Areas or a1sewhere and make alteretlons thereto, build
addnlonal stories on any buildings, construct multl~eval or elevated or underground parking *,11_, and construct roof,
wall$. and any other improvements over, or in connection with any part of, or all of, the Common Areas in order to enclose
same.
Sec:tlon 8.05: RULES AND REGULATIONS.
Tenant agrees that Landlord may establish and from time to time change. alter and amend. and enforce against
Tenant, such reasonable rules and regulations .s Landlord may deem necessary or advls.ble for the proper and etnc:lent
use, operation and maintenance of the Common Areas, provided thet all such rules and regulations affecting Tenant and
Its Invltees and employees shall apply equally and wtthout dl....lminatlon to substantlelly all of the retail tenants In
Landlord's Building or subetantlally all retaU tenants engaging in certain acts or of a certain use, Tho rut.s and regulations
herein provided for may include, but shall not be limned to, the hours during which tho Common Areas shall be open for
use.
Section 8.011: LANDLORD'S MAINTENANCE AND CONTROL.
Landlord agrees to maintain and operate, or cause to be maintained and operated, tho Common Areas In good
and reasonable condnlon and manner, Landlord shall, as between Landlord and Tenant, at all times during the Term have
the sole and exclusive control, management and direction of the Common Areas, and shall provide or cause to be
provided, saourity In the Common Areas at a level datermined by Landlord (and Tenant shall provide, or cause to be
provided, adequate security within Tenanrs Premises as Tenant deems appropr1ate), Landlord may at any time and from
time to time during the Term exclude and reltraln any person from use or occupancy of any of the Common Areas,
excepting, however, Tenant and other tenants of Landlord and bona fide inyitees of either who make use of laid areas for
their Intended purposes and In accordance with the rules and regulations established by Landlord from time to time with
respect thereto. The rights of Tenent In end to tha Common Areas shall at all limes be subject 10 tho rights of others to
use the same In common wlth Tenant. and It shall be the duty of Tenant to keep all of the Common Areas free and clear of
any obstructions or interferences created or permitted by Tenant or resulting from Tenant's operation. Landlord may at
any time and from time to time close all or any portion of the Common Areas to make repairs or changes, or to such extent
as may, in the opinion of Landlord. be necessary to prevent a dedication thereof or the accrual of any rights to any person
or to the public therein, to close temporarUy any or all porttons of the Common Areal and to do and perform such other
acts In and to Common Areas as, in the exercise of good business Judgment, Landlord shall determine to be edvloable
with a view to the Improvement of the convenience and use thereof by occupants and tenants, their emplOyees and
invitees.
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ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 9.01: MARKETING SERVICE.
(a) Landlord has established or will esteblish an advertising and promotionel service (herein called the
"Merteetlng Service') to fumlsh end maintain advertising and seles promotions which, in Landlord's judgment, will benefit
Ihe Shopping Center, Landlord has established or will establish a fund (the 'Martcllllllll lIervlce Fund') to be used by
Landlord to pay all coats end expenses associated with the formulation and carrying out of an ongoing program for the
advertising end other promotion of the Shopping Center. The program may Include, without IImltetion, special events,
shows, displays, signs, marqu_, decor, seasonal events, advertising for the Shopping Center, promotional merature and
other activities to market the Shopping Center based on sums collected from tenants. Tenenlshail pay, 88 lis share of the
cost and expen.. of the Marketing Service for the base calendar year [as defined In Section 9.03 (a) set forth hereinbelow]
of the term of the Lease, till' amQlJnt ..t forth In the Fundamental Lease Provisions (herein called the 'Marteetlng Service
Charge"). The Marketing Service Charge for any Partial Year shali be determined by muitiplylng Tenant's Marketing
Service Charge by the Partial Year Fraction.
(b) Landlord may appoint an advisory committee, composed at least of a representative of Landlord, a
representative of each Major, and a representative from each of six (6) lenanls in Landlord's Building 10 review the
advertising and other promotional activities provided. Such committee shall function solely in an advisory capacity subject
to Landlord's discretion.
(c) In eddltlon, Landlord may use the Marl<eting Service Fund to defray the costs of administration of the
Markellng Service, including, wIthoulllmilatlon, Ihe salary and benefits of a marl<etlng director and related administrative
personnel. rent and insurance.
(d) Notwithstanding the provisions of this Article 9, Landlord may, at any time, In Its sole discretion, decide
that Landlord will. on and 8fler a certain date thereafter, no longer provide the Marl<etlng Service, Landlord may cease
performing the Marl<etlng Service on the date 10 specified by the Landlord, provided that nothing herein shall require
Landlord to breech or fall to perform any agreement or obligation It has made With or to eny third person in connection with
the Marketing Service. If Landlord determines Ihat II Is or may be at risk of any such breech or failure, Landlord need not
cease performing the Marl<etlng Service until Landlord datermlnes that such risk has passed,
(e) In the event thet during the Term there Is (I) any renovation of the Landlord's Building or the Enclosed Mall
which also Involves the renovation of the storefronts of folly percent (50%) or more of the exlsllng tenants' spaces (a
"Storwlront Renovation"); or (II) any expansion of Landlord's BUilding which Increeses the GLA of Landlord's Building by
ten percent (10%) or more (a 'Building Expanelon"), then at the time of a Storefront Renovation or Building Expansion,
Tenanl.hall pay to Landlord (whenever there is and in each case of a Storefront Renovation or a Building expansion) a
special assessment (the "Speclel An..ernen!") In an smount equal to the Meri<etlng Service Cherge (and In eddlllon to
the Merl<etlng Service Charge) for the ceIendar year of complellon of a S_ant Renovation or a Building Expenslon,
Funds collected by the Speclel Assa.sment will be used for expanslon/renovetlon advertising and/or special events to
promote the Storefront Renovation or the Building Expension,
(0 Landlord reserves the rlght, in its sole discretion, to recommence providing the Marketing Service at any
lime aftar Landlord ceased providing Ihe same,
Section 9.02: TENANT'S MINIMUM ADVERTISING OBLIGATION,
Deleted.
SectIon 9,03: ADJUSTMENTS AND CHARGES.
(a) Deleted.
(b) The Merketlng Service Charge shell be paid in equal monthly Installments, In advence, on the first day of
each month, except that If the Rent Commencement Date Is not on the first day of 8 calendar month, then that portion of
the Marketing Service Charge which Is attributable to the days in that first partial calendar month shall be paid In edvence
on the Rent Commencement Date. Tenant's Marketing Service Charge for the Term of this Lease shall be Five and
20/100 ($5.20) DoIlers per .quare fOOl of GLA oflhe Premises per Vear,
(c) landlord may charge all costs and expenses of providing the Marketing Service In any calendar year
against the budget therefor, Said costs and expenses may include without limitation the following:
(I) the services of a marketing director and all staff and outside conluttants (Including professional
marl<etlng service organization) deemed nacessery by Landlord to carry out etlectlve/y the marl<etlng and public reletlons
objective of the Marl<etlng Service, including without IImltallon all payroll, payroll tax.. end employee benefits of any such
director and staff;
(iI) such reasonable amount of space within the Landlord's Building as may be necessary to carry Ollt
the Marketing Servlce, the rental therefor to be comparable to the rental for slmilarty sized commercial space;
(III) all actual costs incurred In edvertlslng and promoting the Shopping Center, Including without
IImllatlon radio, newspaper, lelevision, direct and ind~ect costs of services, art work, copy, printing, paper, stationery and
supplies; and
(Iv) such office equipment, ullllties and telephones as may be deemed necessary by the marketing
director.
(d) The markeUng director and consultants shall be under the exclusive control and supervision of Landlord,
and Landlord shell heve the sole authority to employ and discharge them or either of them and the sleft of the director,
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Soctlon 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION.
In the event there presenUy exists a merchanrs association In use in the Shopping Center, Tenant agrees that
Landlord shall have the unilateral right to take any .~ l'tqulred to lermlnate lhe .ame and \0 replace .uch merchant's
a.soclatlon wIIh a markeUng .ervlce, promotion fund. advertl.lng fund, or any other .Imllar entlly designated by Landlord In
which event, upon notice to Tenant, Tenant shall automatically be deemed a member thereof and shall conlrlbule 10 Ihe
same the emount which Tenent immediately prior to .uch termination was required to contribute to the m...,hant'.
e.soclatlon, Further, Tenant does hereby Irrevocably a..I9O to Landlord all of Tenant's voting rights contained In any by.
law or other aim"ar document forming or governing the administration of any such merchant's 8ssociation.
ARTICLE 10: CONSTRUCTION WORK
Section 10.01: APPROVALS AND STANDARDS.
Tenant Shall not perform any construction or make any atteratlons or changes in or to the PremIses at any time
during the Term (herein .ometlmes collectively cailed "Conltructlon Wortc") without Landlord'. prior written con.ent.
Tenant .hell be directly respon.ible for any and all damages, including, without limitation, damage. to Landlord'. Building,
the Premises and the praml.es of other tenant. In Landlord'. Building resulting from any of Tenlnl's Con.tructlon Work,
whether or not Landlord'. consenl therefor was obtained. MY and ell Construction Worl< which Is con.ented to by
Landlord .hall be performed In accordlnce with (a) plan. and .peclflcatlons prepared by a licensed archKect, or engineer
and approved in wrIllng by the Landlord before the commencement of the Con.tructIon Worl<, (b) ai' nece.sary
govemmental approvals and permKs, which approvals and permits Tenant shell obtain at Ks .011 expense. Ind (c) all
applicable 18Wll, Nles, regulation. and building cod.. relaUng th_o. All Con.tructlon Worl< lhell conform to Llndlord'.
Store Design Criterta and .heIl be performed In a good and workmanlike manner and dlllgenUy _uted to compietlon
to the end that the Premises .hell at all times be a complete unK except during the period of the Construction Worl<, Any
Construction Work performed by Tenant without Landlord'. con.ent shall be returned to ns original condition at Tenanrs
expense upon request by Landlord, Tenant .hall perform any Construction Worl< In .uch a manner as not to ob.tNcl the
access to the premises of any other occupant to the Enclosed MaU nor obstruct other Common Areas.
SocIlon 10.02: INSURANCE AND RECONSTRUCTION.
In the event Tenant .hall perform any permitted or required Construction Work, none of the Constructlon Work
need be insured by Landlord under .ucll insurance as Landlord may carry upon the Landlord" Building nor shall Landlord
be required under any provisions of this Lease relating to reconstruction of the Premises to reconstruct or reinstall any
such Construction Work.
ARTICLE 11: INDEMNITY AND INSURANCE
SocIlon 11,01: TENANTS INSURANCE.
(a) Tenant further covenants and agree. that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant will carry and maintain, at Its sole cost and expense, the following types of Insurance, in the
amounts specified and In the form hereinafter provided for:
(I) Comm.rcl.1 o.n.rel Lllblllty In.urance. Commercial general liability in.urance covering the
Premises and Tenant's use thereof against claims for 'personal and advertl.lng Injury" and "bodily Injury" or death,
.property damage' and 'product/completed operations' liability (as the afollll8id terms 818 defined In such policy)
occurring upon, in or about the Premis.. and Tenant's actlvltle. In the Common Area, .uch In.urence to afford protection
to the limit of not I..s than $3,000,000 regardl..s of the number of persons claiming Injuries or damages arillng out of eny
one occurrence. The Insurance coverege required unde< this Sectlon 11 ,01(a)(i) shell, in addition, extand to any liability of
Tenant arising out of the Indemnities provided for In Section 11,03, Therefore, .uch policy shell not conllln sny exclusion
for contractual "ablllly coverage for any of the foregoing coverages, The general aggregate IImKs under the liability
Insurance policy or policies mu.t apply separately to the Premises end to Tenant's use thereof, The certlftcete of
Insurance evidencing the commercial genera/liability form of policies shsll specify on the face thereof that the limits of
such policies spply separately 10 the Premi....
(II) BoII.III. Boller and machinery Insursnce In sdequate amounts on all flred objects and other flred
pres.ure vessel. and systems serving the Preml.es (K any); snd K the .ald objects and the dlmege that may be caused
by them or r..ult from them are not covered by Tenant's .peclal form coverage In.urance, then such insurance .hall be In
an amount not less than $250,000 and be Issued on a replacement cost basis.
(iii) Tlnlntl8uehold Improvomenll Ind Property. Insurence covering the klo.k, marchandlse
and personal property from time to time In, on or upon the Premlaes In an amount not I... than one hundred percent
(100%) of their full replacement coal from time to time during the Term, providing .pecial form coverage, Including but not
limited to, protection agelnst the peril. Included with the standard .tate form of flre and brOad form extended coverage
insurence policy, together wIIh Insursnce against .prlnkler damege, vandall.m and m8llciou. mischief. Any policy
proceeds from such Insurance shall be held In trust by Tenant's Insurance company for the repair. reconstruction and
restoration or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the
provisions of Article 12.
(Iv) Wortc.,.' Companllllon And Employe~1 Liability, Workers' Compensation and Employer's
LiabUity insurence affording statutory coverage and conlainlng statutory Iimlis with the Employer's Liability portion thereof
to have minimum limits of $1.000,000,00,
(v) IUlln_ Int.rruptlon Inlulllnce. Bu.ine.. Interruption Insurence equal to not iess than fIfIy
percent (50%) of the ..tlmated gross eamings (as defined In the IlIndard Slllte form of buslnes. Interruption insurence
polley) of Tenant at the Premises which insurance shall be Issued on an "all risks" basis (or Its equivalent).
1t8llaJewelers-CapItaICity-KIotk-FlnsI--Flnel
September 13, 2005 \ DIDIo/CD
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(b) All policies of Insurance provided for in Section 11,01(a) shell be issued by insurance companies with a
fhianclal rating of not _. than A VII 8S rated In the most current available "B..t'. In.urance Reporta", and qualified to
do business in the state In which Landlord's Building Is. located, Tenant's obligation to provide the insurance coverage
specified In Sectfon 11.01(aXI) above shall not be effected by any deductible with respect to such policy or seW insurance
ratention maintained by Tenant. Each and every such policy, except for Workers' Compensation and Employers Liability
insurance:
(/) shall be issued in the name of Tenant and shall name as an additional insured each of Landlord,
Agent and any other parties In Intarast from tlma to time designated in writing by notice from LandlOl'd to Tenant;
(i1) shall be for the mutual and joint benafit and protactlon of Landlord and Tenant and any such othar
parties In interest;
(iii) shall (or a certificate thereof shall) be dallvered to aach of Landlord and any such olher parties In
inleresl within thirty (30) deys prior to the expiration of each such policy, and, as often as any such policy shall expire or
terminate. Renewal or additional paUcles shall be procured and maintained by Tenant In like manner and to like extent;
(Iv) sheP contain a provision thatlhe Insurer will give to Landlord and such other pertlas in Interast at
least thirty (30) days notice In writing In advance of any material change, cancellation, termination or lapsa, or tha affectiva
date of any reduction in the amounts of insurance;
(v) shall be written as a primary policy which does not contribute to and Is not in excess of coverage
which Landlord may carry; and
(vi) shall contain a provision that Landlord and any such other parties in interest, although named as
an additional Insured, shall nevertheless be entitled to recover under said policies for any loss occasioned to it, Its
servants, agents and employees by reason of the negtigence of Tenant.
(c) Any insurance provided for In Section 11.01 (a) may be maintained by means of a policy or policies of
blanket Insurance, covering additional items or locations or Insureds, provided, however, that:
(i) Landlord and eny other partias in Interest from time to tlma designated by Landlord to Tananlshall
be named as an addltion811nlured thereunder as Its Interest may appear;
(II) the coverage afforded Landlord and any such other parties In Interelt will not be reduced or
diminished by re810n of the use of IUch blanket polley of Insurance;
(ill) eny such policy or policies [except any covering the risks referred to in Section 11,01(a)(i)] shall
specify Ihereln (or Tenant shall furnish LandlOl'd with a _an statemant from the Insurers under such policy specifying)
the amount of the total insurance allocalad to the Tenanrs improvements end property more specifically detailed In Section
11.01 (a)(IiI); and
(iv) the requirements set forth In this Article 11 are otherwise S8tisftttd.
(d) Tenant agrees to permli Landlord at eli reasoneble times to inspect the policies of insurence of Tenant
wlih respect to tha Pramises for which policies or copias thereof are not delivered to Landlord,
Section 11,02: LANDLORD'S INSURANCE,
(a) landlord shall at all times during the Term carry and maintain the following types of Insurance in the
amounts specified and In the form hereinafter provided for:
(i) Commercl., Gene...1 Liability Inauranee. Commercial general liability insurance against claims
for property damage and bodily Injury or death, such Insurance to afford protactlon to the limli of nol less than $5,000,000
In respect to property damage, Injury or death to any number of persons arising out of anyone occurrence.
(Ii) Landlord's R..I snd P_onsl Property. Insurence covering the Landlord's Building [exciuslve
of any tenant Improvements and betterments and property required to be insured by Tenant pursuant to Section
11,01(eXIiI)) In an amount not less than one hundred percent (100%) of full repl_ment cost (excluslva of the cosl of
excavations, foundations end footings), from time to time during the Term, providing protection against perils included
within the standard state form of special form coverage Insurance policy, together with insurance against sprinkler
damage, vandalism and malicious mischief, and such other risks as landlord may from time to time determine and with
any such deductlbles as Landlord may from time to time determine,
(ill) Rsnt InsurlInca. Rent Insurance with respect to the premises of the tenants in the Shopping
Center W evallable at a coat which Landlord in Its sole Judgment deems reasonable, against Ioas of rents In an aggregate
amount equal to not more thon twenty-four (24) times the sum of (i) the monthly requirement of Minimum Rent of such
tenants, plus (Ii) the average monthly amount estimated from time to tima by Landlord to be payable by such tenants as
Parcentage Rent and as Addnlonel Rent pursuant to their laases,
(b) . Any Insurance provided for in Section 11,02(a) may be meintained by moans of a policy or policies of
blanket Insurance, covering additional items or locations or Insureds provided that the requirements of Section 11.02(a)
are otherwise satisfied.
(c) Tenant shall have no rights In eny policy or policies maintained by LandlOl'd and shell not be entitled to be
named an Insured thereunder, by reason of payment, as part of the CAM Sum of Its share of Landlord's premiums for the
Insurance provided for In this Section 11.02 or otherwise.
Sactlon 11.03: INDEMNIFICATION BY TENANT,
Tenant agrees that Landlord shall not be liable for any damage or liability of any kind or for any injury to or death of
persons or damage to property of Tenant or any other person during the Term, for any cause whatsoever (including
without limitation the acts or omissions of Landlord or Agent. bursting pipes and smoke) by reason of the construction,
US8, occupancy or enjoyment of the Premises by Tenant or any person therein or holding under Tenant or happening upon
or about the Premises and Tenant for the purposes of this Section 11.03 shall be deemed to be In exclusive control of the
Premises during the Term. Tenant does hereby agree to and shall protect, defend, Indemnify and save harm&ess Landlord
and Agent from all claims, action., demands, costs and expenses and Uabllity whatsoever, Including reasonable attorneys
fees, on account of any such real or claimed event, damage or liability, and from all liens, claims and demands arillng
from (a) any occurrence in, or about the Premises, and/or (b) Tenant's activities In the Common Areas, and/or (c) arising
ItallaJewelers-CapltalCltrKioek-Flnal-Flnal
September 13. 2005 \ DIDIo/CO
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au,t of the con.tructlon, u.., occup.ncy or .njoym.nt of the Preml..., .nd/or. (d) occa.loned In whol. or In p.rt by .ny .ct
or oml..lon of Ten.nt, Its .gents, contractors, ..rv.nts, .mployee. or Inv~ee., reg.rdles. of where occurring. T.n.nt
further .gree. th.t the obligation to def.nd Landlord .nd Agent continues regardles. of .lIegatlon. of negligence or oth.r
f.ult on the pert of Landlord or Agent until .uch neglige_ or fau~ h.. been ..tabll.hed In a flnal adjudlc8tlon. T.n.nt
.h.11 not, however, be liable for d.m.g. or Injury occasioned by the wllWul act of the Landlord which I. the ceu.. of
dam.g. or Injury unles. T.n.nt I. required by thl. L.... to ...um. or In.ure agaln.t .uch d.mage or Injury, T.n.nt'.
obligation. und.r the eforesald Ind.mnlty .h.1I not be limited to the .mount of comm.rcl.1 gen.rel lI.blllty In.ur.nc.
coverage which Tenant is required to carry.
Section 11.04: MUTUAL WAIVERS.
Landlord and Tenant hereby waive any rights each may have against the other on account of any 108s or damage
occasioned to Landlord or Tenant, as the case may be, their respective property, the Premises. Its contents or to the other
portions of Landlord's Building, arising from any risk covered by specntl form coverage Insurance, and to the extent of
recov.ry und.r v.lld .nd collectlbl. pollcle. of .uch in.urance, provided th.t .uch waiv.r doe. not Inv.lldat. .uch pollcl..
or prohibit recovery ther.und.r, Th. partl.. her.to each, on beheW of th.lr r..pectlv. In.urance companies In.uring the
property of either landlord or Tenant against any such loss, waive any right of subrogation that such insurers may have
against Landlord or Tensnt, as the case may be.
Section 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS.
Subj.ct to L.ndlord'. Obligation. in Sacllon 13.01 to m.lntaln the .tructur. of the Pr.ml.es, T.n.nt .gr_ at it.
own expense to comply with all Governmental Requirements as well as the recommendations and requirements, with
respect to the Premises, or Its use or occupancy, of the Insurance underwriters or insurance rating bureau or any similar
public or prlv.t. body and .ny govemmant.1 .uthority hevlng jurl.dictlon with r..pect to the u.. or occup.ncy of
Landlord's Building, Including, but not limited to, installation of fire extinguishers or automatic detection, suppression
systems andlor IIfe-safety systems, Bny changes, modifications or alterations in the detection and/or suppression systems
or addltion.1 d.tectors .nd/or .prlnkl.r h.ed. or the location of part~lon., trade flxtur... or oth.r conlltnts of the Preml...,
Landlord .h.1I not materl.,1y chenge the dlm.n.lon. of the Pr.ml... or m.t.ri.lly affect accaa. to the Premi... from the
Landlord's Building unless required to make any such changes by reason of any federal, state or local environmental or
other law, rule, regulation, guideline, judgment or order.
Section 11.08: EFFECT ON LANDLORD'S INSURANCE.
Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything In, upon or about the Premises
which will contrav.n. Landlord'. pollci.. inlurlng ag.ln.t 10.. or d.m.g. by flr. or oth..r hazard., or which will prev.nt
Landlord from procuring .uch pollc1e8 In companl.. accaplabl. to Landlord .t regular r.tes or which will in .ny way ceu..
an Incre... In the In.urance rat.. for .ny portion of the Shopping C.nt.r. If T.n.nt violates .ny prohlb~lon p<ovlded for In
the first sentence of this Section 11.06, Landlord may, without notice to Tenant, correct the same at Tenant's expense,
T.n.nt .h.1I p.y to Landlord .. Addlllon.' R.nt forthwith upon dem.nd the .mount of .ny Increa.. in the premium. for
In.urance resulting from .ny vlol.llon of the flrst ..nt.nce of thl. Section 11.08, even W Landlord .h.1I have con.ented to
the doing of or the keeping of .nythlng on the Preml.es which con.lltuted .uch . violation (but paym.nt of .uch Addltion.l
R.nt .h.1I not .ntlll. T .nant to vlol.t. the provt.lon. of the flrst ..nt.nc. of thl. Section 11,08),
Section 11.07: LIMIT OF LANDLORD'S RESPONSIBILITY.
L.ndlord .h.1I not be respon.lbl. or lI.bl. to T.nant for .ny io.. or d.mage th.t m.y be occa.loned by or through
the acts or oml..lon. of person. occupying .pace .djoinlng the Preml.es or any oth.r part of the Shopping C.nter or
Landlord'. Building, or for .ny 10.. or damage re.ultlng to the T.nant or It. property from bursting, .toppage or Ie.klng of
walltr, ges, .ewer or .llt.m pipa. or other utlilty line. or for any dam.ge or 10.. of property within the Premlsas from .ny
ceu.. wh.tsoev.r. Such limitation of re.pon.lblllty and liability .h.1I not, however, apply to Landlord'. wllWul act., .xcept
to the extent such willful acts are waived or released by Tenant pursuant to Sections 11.03 or 11.04,
ARTICLE 12: DAMAGE OR DESTRUCTION
Section 12.01: LANDLORD'S DUTY TO RECONSTRUCT.
In the .v.nt the Landlord'. Building I. d.maged or d..troyed by .ny of the ri.ks ref.rred to in Section 11 ,02(.XII)
.galn.t which Landlord i. obligated to procur. in.ura_, Landlord .hall (.ubject to belng .bI. to obtain .11 nece...ry
permits and approvals therefor, including without limitation permits and approvals required from any agency or body
.dminl.tering .nvlronmental law., rul.. or regulation.), within on. hundred twenty (120) days after .uch damage or
destruction (unles. Landlord termin.llt. thl. L.... pur.uant to Section 12,03), comm._ to: (a) repair or recon.truct
Landlord's Building and (b) repair or reconstruct the structural floor slab of the Premises, Landlord shall proIecute all such
work diligently to completion, In no event shall LancUord be liable for interruption to Tenant', business or for damage to or
repair or reconstruction of any of those things which Tenant Is required to insure pursuant to Section 11.01(aXill), nor shall
LandlOrd be required to expend more for any repair or reconstruction pursuant to this Section than the net amount of
Insurance proceeds actually received by Landlord and allocable to the Premises on a square foot basis.
Section 12.02: TENANT'S DUTY TO RECONSTRUCT.
If the klo.k I. d.maged or d..troyed by flre or oth.r ca.u.lty, T.nant .hell (.ubject to being able to obtain all
necessary permits and approvals therefor, including without limitation permits and approval. required from any agency or
body .dmini.tarlng .nvtronmental I.ws, rule. .nd regulation.), within fifteen (15) d.ys aft.r Landlord ha. .ub.tantially
repaired or reconstructed L.ndlord'. BuHdlng and the floor of the Pr.ml... (unl... L.ndlord t.rmin.t.. this L....
pursuant to Saction 12.03), replace the klo.k with .noth.r on. .pproved In .dvance by Landlord.
lt8lleJeweler'I-CepitaIClty-KIOIk.Flnej..Flnel
Sept.mber 13, 2005 \ DlDloICD
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s.ctlon 12.03: LANDLDRD'S RIGHT TO TERMINATE.
(a) Landlord .hall have the option to terminate thl. Lea.e upon giving written notlco to Tenant of the exercl.e
thereof within one hundred twenty (120) days after the Landlord'. Building I. damogod or de.troyed W:
(I) the Preml.e. are rendered wholly unfit for tatty!ng On the Tenant'. bu.ine.s after damage to or
d..tNctlon tharoof from any cau..; or
(i1) Landlord'. Building Is damaged or destroyed as a re.ult of any flood, earthquake, act of war,
nuclear reaction, nuclear radiation or radioactive contamination, or from any other risk not covered by Insurance which
Landlord Is obllgetod to procure pursuant to Section 11 ,02(aXII); or
(III) any d.mage to or d..tructlon of Landlord's Building occurs within thela.t thr.. (3) Vears of the
rerm or in any Partial Year at the end of the Term; or
(iv) flfty percant (50%) or more of the GLA in the Landlord's Building Immediately pnor to the damage
or destruction Is rendered unfit for carrying on business therein; or
(v) Lendlord'. Building I. .0 substantially damogod that it Is reasonably neces.ary, In Landlord's
judgment, to demolish the same for the purpose of reconstruction; or
(vi) L.ndlord elocts not to permit kiosks in the Enclosed Mall.
(b) Unless so terminated, this Lease shall continue in full force and effect, and landlord and Tenant shall
perform th.lr respective obllgallons under SectIon 12,01 and 12,02, Upon any tormlnatlon of this Lease under any of the
provisions of this Section 12.03, the Rent shall be adjusted as of the date of such tormln.Uon and the p.rtles shall be
released from all Ii.blllty hereunder upon the surrend.r of possession of the Preml.es to the Landlord, .xcopt for nems
whk:h have been theretofore accrued and are then unpaid.
Section 12,04: ABATEMENT OF RENT.
If this L.asels not terminated by Landlord pursuant to SectIon 12.03 after damage or destrucllon of the Landlord's
Building. and W tha Preml.e. are rendered wholly or partially unflt for catty!ng on Tenant's buslnoos by .uch damage or
d..trucllon, then the Minimum Rent and the Additional Rent payable by Ten.nt under thl. Lease .hall be aboted, and the
.pplicable Break Point and Partial Vear Break Point (as the ca.e may be) .hall be reduced In direct proportion to the
perc.ntage of the GLA In the Preml... which Is rendered unflt for that period from tho d8lo the Proml... are so rendered
unfit until the earllor of sixty (60) days aft.r Landlord re-dellvers possession of the Preml... to T.n.nt or the d.te Tenant
reopens for business,
ARTICLE 13: MAINTENANCE OF PREMISES
SKllon 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE,
l.ndlord will kaop the roof of the Enclo..d Mall, stNctur.1 columns .nd coment structural floor or floors which
compnse the Premises in good repair, Notwithstanding the foregoing provisions of this SocIlon 13.01, L.ndlord .h.1I not in
any way be liable to Tenant unless Tenant shall have given Landlord written notice of the necessity for such repairs and
Landlord falls to commence making such repairs within a reasonable period thereefter I and provided that any damage
necessitating such repairs shall not have been caused by the omlsalon, negligence or willful act of Tenant, its
concesstonaires, Invltees, officers. employees, licensees or contractors or by the failure of Tenant to perform any of Its
obllgetlons under this Le.s. (in .Ith.r of which .v.nts Ten.nl shall be re.ponslble therefor) or h.ve boon causad to any of
the items Tenant Is required to insure pursuant to Article 11. Landlord shall be under no liability for repair, maintenance,
alteration, improvement, reconstruction, renewal or any other action with respect to the Premises or any part thereof, or
any plumbing, electrical, heating, ventilating, air conditioning, or other mechanical Installation therein, except as may be
expressly set forth In this Lease.
SKllon 13.02: TENANTS DUTY TO MAINTAIN PREMISES,
Tenant will at all times, from and after delivery of possession of the Premlns to Tenant, at Its own cost and
expense, maintain and make all needed repairs, and dp all other work to or for the kiosk and every part thereof to render
the s.me in good .nd tenantabl. condition, T.n.nt's obligation under this Section 13,02 .hall include, but not be limited
to, r.palring, replacing .nd otherwise m.lntalning the entire kio.k .nd Item. .s sre required by .ny govemmental agency
h.vlng junadlcllon thereof (whether the s.me Is ordinary or extraordln.ry, fores..n or unfore...n), utility metors, pipe.
and conduits inside the Preml... which .ra Inst.lled by or demised to T.n.nt or which exclusively serve the Premi.es. .11
fixtures, all equipment in the Premises, all of Tenant's signs, security grilles or similar enclosures, locks and closing
devIces. Tenant shall permit no waste, damage or injury to the Premises and Tenant shall Initiate and carry out a program
of regular repair .nd other m.inten.nce of the Premises, Including tho peinUng or refinishing of.1I .rea. of the interior .nd
th. storefront.s .pproved by Landlord, .o.s to Impede, to the extent possible, deterioration by ordinary we.r and tear
and to k..p the ..me In attractive condnlon, Ten.nt will not overload the oIoctrical winng or other .ystems sorvlng the
Premls.s or within the Preml..., .nd will Install .t Its expen.., but only after obtaining Lendlord's written .pprov.I, .ny
additionaleloctncal wiring or other Items which m.y be required In connection with Ten.nt'. app.ratu..
Section 13.03: RIGHT TO ACCESS TO THE PREMISES.
landlord and Its authorized representatives may enter the Premises at any and all times during usual business
hours and at all other times In the case of an emergency, for the purpose of Inspecting the same or to make any additions,
.It.ratlons, repelrs or replacoment. to tho Premises or to .ny utility systems or oquipmenllocatod In, above or under th.
Premises which may be necessary or desirable to comply with governmental requirements and/or the recommendations of
any insurance rating bureau or any similar public or private body or to prevent waste or deterioration In connection with the
operation of th. Preml.... Nothing hareln contained shall Imply any duty on the p.rt of L.ndlord. to do any such work
which under any other provision of this L.... T.n.nt m.y be required to do nor sh.1I Landlord'. perlorm.nco of such work
constitute a waiver of Tensnrs default In failing to do the same. In the event Landlord performs or causes any work to be
performed which, by virtue of the provisions of this Le.s., Is Ten.nt's re.ponslbllity, Tenant .h.1I pay the coat thereof to
landlord, as Additional Rent, upon demand. No exercise by landlord of any rights provided In this section shall entitle
ItallaJowolera-capitslClIyol(iook.Fins~Fln.'
September 13, 2005 \ DIDIo/CD 21
:Tenant to any damage for any inconvenience, disturbance, loss of business or other damage to Tenant occasioned
thereby nor to eny ebatement of Rent.
Section 13.0<1: CONFLICTS.
To the extent, W.ny, th.t there m.y be .ny conflict between thl. Article 13 .nd Article 12, or between this Article
13 .nd Articl. 22, Articl. 12, W .pplicable, or Articl. 22, W .ppllcable, .h.1I prev.il.
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01: TENANTS PROPERTY: REMOVAL.
The kiosk to be constructed by Tenant and all any trade fixtures, signs, counters, shelving, Inventory, showcases,
mirrors, and other personal' property of Tenant not permanendy affixed to the Premises shall remain the property of
Tenant. Tenant shall have the right, provided Tenant Is not in default under this Lease, at any time and from time to time
during the T.rm, to remove .ny.nd .11 of it. person.1 property which It m.y h.ve .tored or In.talled in the Preml..., If
Tenant IS in default under this Lease, Landlord shall have the right to take exclusive possHsion of such property and to
use such property without rent or charge, and Landlord, whether or not It takes posselSlon of such property, shall have the
benefit Or .ny lI.n thereon permitted under the I.ws of the .tat. In which L.ndlord'. Building I. located .nd, W .uch
possession Is taken or such lien is asserted by Landlord In any manner, Including but not limited to operation of law,
Ten.nt .hall not remove or permit the removal of ..Id kiosk, trade fixtur.., .ign. or oth.r person.1 property until .uch
possession is relinquished or the lien Is removed, as the case may be. Nothing in this Article shall be deemed or
con.tru.d to permn or allow Ten.nt to remove .ny of such person.1 property priOl' to the end of the T.rm without the
immedi.t. replacement thereof with .Imll.r person.1 property of comp.r.bIe or better qu.lity, or otherwi.e render the
Premi.e. un.uitabl. for the continued conduct of Tenant'. permitted u.e thereof, T.n.nt.t its .xpen.e .h.1I immedi.tely
repair .nd otherwi.. m.k. good any d.m.ge occa.ioned to the Preml... 01' Shopping Center by rea.on of install.tion 01'
r.mov.1 of the kiosk 01' .ny .uch personal property unle.. .uch d.mage i. caused by Landlord pursu.nt to Section 13,03
.nd W Ten.nt fall. to remove .uch it.m. from the Preml.es prior to .uch expiration 01' termination, or W this L.... is
t.rmin.ted by L.ndlord .nd Ten.nt fall. to remove .uch nem. from the Premi..s prior to the effective d.te of .uch
termin.tion, then in .ny .uch event klo.k .nd .11 .uch person.1 property .hell thereupon become the property of L.ndlord,
without furth.r act by enher p.rty hereto, unl... L.ndlord eI.cts to require .11 or . portion of .uch lIem. to be r.moved by
Tenant in which case Tenant shall promptly remove the items designated by Landlord and restore the Premises to its prior
condition at Tenanrs expense.
Soctlon 14,02: IMPROVEMENTS TO PREMISES,
Subject to the provisions of Section 14.01, at the expiration or earlier termination of this Lease, Tenant shall
remove the kio.k .nd the .rea upon which the klo.k was con.tructed .h.11 be left In the ..me condnlon In which .uch .r..
was when the con.tructlon of the kiosk commenced, ordinary we.r.nd tear excepted, Tenant'. obligation to ob.erve .nd
perform the covenants ..t forth In thl. Section 14,02 .h.1I .urvlve the explraUon 01' earlier termln.tion of thi. L...e,
Should T.nent f.11 to remove the kiosk .nd Ita trade fixtures .nd/or to so r..tore the Premi..., Landlord m.y do '0,
collecting upon demand at Landlord's option, the cost and expense thereof as Additional Rent, or Landlord may permit
future occupants to utilize the kiosk without accounting to Tenant.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
Section 15,01: PROHIBITED.
Tenant shall not permit anyone other than Tenant to occupy the Premises or any part thereof and shall not
transfer, assign, sublet, enter into license or concession or other occupancy or use agreements or mortgage or
hypothecate thl. L.... 01' the T.nant'. Intere.tln .nd to the L.... or th. Preml... or .ny pert thereof (herein collectively
referred to .. "T...._> without first obtaining in ..ch .nd evary In.tance the prior written con.ent of L.ndlOl'd which
Landlord may withhold In Its .01. dl.cretion, Any .tt.mpted Tran.fer wIIhout.uch prior written con..nt .hell be .n Event
of Def.un, .h.1I not be binding upon L.ndlord, .h.1I confer no rights upon .ny third person.nd .h.11 not relieve T.n.nt of
Ita obligation. under thl. Lea.e, Any tran.fer by m.rger, con.olld.tlon, Ilquld.tlon or otherwl.e by operation of law,
Including, but not limited to, an assignment for the benefit of creditors, as well as any transfer, assignment, or
hypothecation of .ny .tock or general p.rtnershlp int.rest In T.nant .0 .. to result In . ch.nge of the control thereof, .h.1I
be Included In the term "T...._ for the purpo... of this Le..e .nd .h.1I be . violation of thle Section 15.01 .nd .n
Event of Default, except 81 otherwise specifically set forth In this Article 15. Consent by Landlord to any Transfer shell not
constitute a waiver of the necessity for such consent to any subsequent Transfer, In the event of a permitted Transfer,
Tenant agrees nevertheless to anclshall remain fully liable for the full performance of each and every obligation under this
Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bound by all of
the t.rm. of thle Lea.., In the event of .ny proposed Tren.f.r, T.n.nt .h.1I deliver to Landlord written notice (the
"Requ_ NolIce") requesting L.ndlord'. con..nt to the proposed Tran.fer .t I...t thirty (30) d.ys prlof to the d.te on
which, with Landlord's prior written consent, the Transfer would be effective. The Request Notice shaH contain, without
limitation, .t '...t: (I) the fullldenlfficatlon of the proposed tr.n.ferea; (II) the most recent financial .tetements .nd other
evidence of the transferee's financial responsibility and business performance; (iii) the transferee's proposed specific use
and business propoHd to be conducted at the Premises: (Iv) the scope of any proposed alterations to the storefront of and
wtthin the Premises; and (v) the monetary and non~monetary terms and conditions of the proposed Transfer. Landlord
sh.1I h.ve the right .nd opUon (the "T__ Option"), .xercl..ble by L.ndlord giving Ten.nt written notice within thirty
(30) d.ys efter L.ndlord'. receipt of the Reque.t NoUce of reacquiring the Pr.ml.es 01' portion thereof which is the .ubj.ct
of the proposed Transfer and terminating this Lease with respect thereto. tf ~andk>rd elects not to exercise the Take-back
Option and etects to give Landlord's written consent to the proposed Transfer, then Tenantlhall pay to Landlord forthwith
upon Tenant's receipt, as Additional Rent, all sums and other economic conalderatlon (whether by lump sum payment or
otherwise) received by Tenantln any month as a result of the Transfer whether denominated rentals or otherwise which
.xceed, In the .ggreg.te, the total .um. which T.n.ntl. obligated to p.y .nd doe. p.y Lendlord und.r this Leas. in th.
118'laJewelere-CapltaICIty-Kioek-Fln8~Fln81
Sopt.mber 13, 2005 \ DiDio/CD
22
s~m. month (proreted to reflect obllg.tion. .lIocabl. to that portion of Ih. Premises which is th. .ubject of the T r.n.f.r),
.11 v#.hout affecting or reducing any other obligation of T.nant hereunder provided, th.t In the case of.n a.signm.nt of
thl. L.... .uch Addlllonal Rant paym.nt by T.n.nt to L.ndlord .h.1I equ.1 th. entire consideration for .uch ...slgnm.nl.
~ Landlord gives Landlord'. written con.ent to the proposed Tr.".f.r and the Trenofer I. not med. (Including without
limitation, delivery of _ssion by T.n.nt to .nd occupancy by lhe proposed tran._ approved by Landlord) wllhln
thirty (30) days after the date Landlord glv..1ta writtan con..nl to th. proposed Trenst.r, then Landlord's written con..nt
.nd the Trensfer .h.1I be .utom.tically null, void .nd of no force or effect whatsoev.r, The T.kll-back Option sh.1I not be
.xh.u.ted by anyone ex.rcI.. thereof by L.ndlord but .h.1I be .xerclsabl. from tim. to tim. .nd .. oft.n .. th.r. i. .
propo.ed Trenst.r, The T.kll-back Option m.y be .x.rci.ed by any ...ignee of L.ndlord's right, tltl..nd Int.rest In this
L.... or .ny oth.r person which .t th. tlm. of th. Requ.st Notice Is Landlord under thl. L..... If aft.r receipt of the
Requ..t Notlca Landlord requ..t. addltlon.1 or further Inform.tlon which L.ndlord re.sonably require. to con.id.r the
propo.ed Tren.f.r, T.n.nt .h.1I deliver such Inform.tlon to Landlord upon Landlord'. reque.t therefor and the period for
L.ndlord to .x.rcls. the T.k.back Option .h.U be .xt.nded by the number of days between L.ndlord's requ.sl for and
Landlord's receipt of such additional or further information. Tenant shall pay to landlord the sum of Five Hundred
($500,00) DoU.r. to defray L.ndlord'. admlnlstretlv. coot., ov.rh..d and couns.1 fees In connection with the
consideration, review and document preparation of any proposed assignment or subletting, such sum to be paid at the
time Tenant delivers the assignment and assumption agreement executed by the assignee and assignor.
ARTICLE 16: DEFAULTS BY TENANT
Section 18.01: EVENTS OF DEFAULT.
Thl. L.... I. med. upon the condition th.1 T.nant shall punclu.lly and faithfully perform and fu~1II all of the
covenants, conditions and agreements by It to be performed as In this Lease set forth. In addition to events elsewhere
.tated In thl. L..se .. Ev.nts of O.f.ult, the following sh.U be d..m.d to be .n Ev.nt of Oef.ult (..ch of which is
sometimes referred to as an "EVent of Defaultll in this Lease):
(a) the f.llure by the T.n.nt to p.y Minimum R.nt .nd/or P.rc.ntage R.nl andlor Addltion.1 R.nt or .ny
installment or year-end adjustment thereof If such failure continues for ten (10) days after written notice thereof by
Landlord to Tenant: or
(b) th. failure of T.nant to .ubmlt II. O..lgn Orewlng. on or before the Design Drawing. Submission D.t. in
.ccordance with Section 2.03(c) or comm.nce T.n.nt'. Work on or before the ConstNctIon Comm.ncem.nt Oal. In
accord.nce with the t.rm. .nd condition. of S.ctlon 2,03(c); or
(c) the failure of Tenant to open its busine.. to the pUblic in the Premises on or prior to the date on which
Tenant il required to open its bUllne.. to the publiC pursuant to the terms and conditions of Section 2.04, or the failure to
open the Preml..., or to k..p the Pr.mis.. open, on the d.ys .nd hours required by thl. L...., or ~ T.nanl vacat.. or
abandons the Premises; or
(d) the failure of Tenant to observe or perform any of the covenants, terms or conditions set forth in Article 15
(relating to .s.lgnm.nt .nd .ubletting); or
(.) the 181. or removal of. .ub.tantl.1 portion of T.n.nt's property located In the pr.mlse. In . m.nn.r
which is outside the ordinary course of Tensnt's business: or
(I)
h8fllOf; or
(g) repetlllon or continu.tIon of any failur. to timely pay any Minimum R.nt .ndlor P.rcentage R.nt .nd/or
Addlllonal R.nt or other .um. reserved hereund.r or to timely report Gro.. Sale. a. provided In Section 4,06 hereof
where IUch failure shall continue or be repeated for two (2) consecutive months, or for a total of three (3) months in any
perIocI of twelve consecutive months; or
the failure to maintain inventory levels and employee staff In accordance with the proVisions of Article 7
(h) repetition of any failure to observe or perform any of the Lease covenants, terms or conditions more than
three (3) tlm.s, In th. .ggr.gat., In any parlod of tw.lv. (12) con.ecutiv. month.; or
(i) any other failure of Tenant to observe or perform any of the other covenants, terml or conditions set forth
in thl. L.... where said f.llure contlnu.. for a period of twenty (20) d.ys aft.r written notice thereof from L.ndlord to
Tenant (unless such failure cannot reasonably be cured within twenty (20) days and Tenant shall have commenced to cure
said fallur. within twenty (20) days .nd contlnu.s diligently to pur.u. the curing of In. ..m. until compl.ted); or
(j) the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor (hereafter
defined) or a substantial portion of Tenant's or Guarantors assets; the commencement of levy, execution, attachment or
other proce.s of law upon, on or .g.ln.t the ..tat. cre.t.d In T.nant her.by; the .ppllcatlon for or th. .ppointm.nt of.
liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judk:ial officer for Tenlnt or Guarantor or
for all or any substantial part of the property of Tenant or Guarantor (and such appointment continues for a period of thirty
(30) days); the Insolvency of Tenant or Guarantor of Tenant in bankruptcy or equity sense; any assignment by Tenant or
Guarantor for the benefit of creditors: or
(k) the commencement of a case by or against Tenant or Guarantor, under any insolvency, bankruptcy,
oredltor adjustment or debtor rehabilitation laws, stete or federal; or the determination by the Tenant or Guarantor to
request relief under any Insolvency proceeding, including any insolvency, bankruptcy, creditor adjustment or debtor
rehabilitation laws, state or federal, and in no event shall the Premises or Tenant's interest In this Lease become an asset
In any such proceedings; or
(I) notwltl1atendlng the T.n.nr. obligation to pay Minimum R.nt .nd/or P.rcentage Rent .ndlor Addltlon.1
R.nt a. of the first day of ..ch month during th. T.rm, In the .v.nt th.t.n Insolv.ncy, b.nkNptcy or .Imll.r proceeding I.
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,filed by or against the Tenant or any Guarantor, the Tenant shall be obligated to pay all such 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 such proceeding Is commenced.
Soctlon 18.02: LANDLORD'S REMEDIES.
(a) Landlord may traat any Event of Default as a material breach of this Lease, Landlord's fallura to Insist
upon strict performance of any covenant, term or condition of this Lease or to exercise any right or remedy it has herein
shall not be deemed a waiver or relinquishment for the futura of such performance, right or ramedy. In addition to any and
all other rights or remedl.. of Landlord In this Lease or at law or In aquity provided, Lendlord shell have the following rights
and remedIes If there shall occur any Event of Default none of which shall be construed 8S an election to forego any of the
other remedies then or In the future:
(I) accelerate the whole balance of Rent. and all other sums payable hereunder by Tenant, for the
entire balance of the Term, Ot any part of such Rent and other sums; and/or
(il) to terminate this Leas., and to re-enter the Premises and take possession thereof and to remove
all persons and contents therefrom, and Tenant shall have no further claim or right hereunder; and/or
(iii) to bring suit for the collection of Rent and for damages without entering Into possession of the
Premises or terminating this Lease; and/or
(Iv) to terminate Tenant's right of possession of the Premises by summary proceedings or otherwise,
without terminating this Lease. In the event of any re...entry and termination of possession, Landlord shall have the right
but not the obligation to remove any personal property from the Premises and either treat such property as abandoned, or
at Landlord's optIon, place the same In storage at a public warehouse at the sole cost, expense and risk of the Tenant;
and/or
(v) to enter the Premises and without further demand or notice proceed to distress and sale of the
goods, chattels, personal property and other contents there found and to levy the Rent, and Tenant shall pay all costs and
officers' commissions, Including watchmen's wages and sums chargeable by Landlord, and further including charges
which Landlord may impose by statute as commissions to the constable or other person making the levy, and in such
cases all costs, officers' commissions and other charge. shall Immediately attech and become part of the claim of
Landlord for Rent, and any tender of Rent without said costs, commissions and charges made, after the issuance of a
warrant of distress, shall not be sufficient to .atlsfy the claim of Landlord,
(b) Cont.alon of Judqment .. Rent. Tenant covenants and agrees that if there's an Event of Default, then
Landiord may. without IImltetion, cause judgments for money to be entered against Tenant and, for those purposes,
Tenant hereby grants the following warrant of ettomey: (I) Tenant hereby irrevocably authorizes and empowers any
prothonotary, clerk of court, attomeyof any court of record and/or Landlord (as wall as someone acting for Landlord) In any
and all actions commenced against Tenant for recovery of the Rent and/or other amounts to be palcl to Landlord by Tenant
to appear for Tenant, and assess damages and confess or otherwise enter judgment against Tenant, for aU or any part of
the Rent and/or other amounts to be paid to Landlord by Tenant Including, without IImltetlon, sums under Section 16,02(a),
together with interest, costs and an attorneys' commission of flve percent (5%) of the full amount of such Rent. amounts
and sums, and thereupon writs of execution as well as attachment may forthwith issue and be served, without any prior
notice, writ or proceeding whatsoever excepta. may otherwise be required by appliceblelaw; (i1) the warrant of attorney
herein granted shall not be exhausted by one or more exercises thereof but successive actions may be commenced and
successive judgments may be confessed or otherwise entered against Tenant from time to time as otten as any of the
Rent and/or other amounts and sums shall fal/ or be due or be In arrears, and this warrant of attorney may be exercised
after the termination or expiration of the Term and/or during or atter any extensions of the Term or renewals of this Lease;
and (UO the provisions of Section 16.02(d) are incorporated herein by this reference thereto.
(c) ConfM:alon of Judament .. Po.....lon. Tenant covenants and agrees that if there Is an Event of
Default or this Lease is terminated or the Term or any extensions or renewals thereof is terminated or the Term or any
extensions or renewals thereof is terminated or expires, then, and in addition to the rights and remedies set forth in Section
16.02(b), Landlord may, without limitation, cause judgments in ejectment for possession of the Premises to be entered
against Tenant and, for those purposes, Tenant hereby grants the following warrant of attorney: (I) Tenant hereby
irrevocably authorizes and empowers any prothonotary, clerk of court, attorney of any court of record and/or Landlord (as
well as someone actlng for Landlord) in any and all actions commenced for recovery of possession of the Premises to
appear for Tenant and confess or otherwise enter Judgment In ejectment for posselslon of the Premises against Tenant
and all persons claiming directly or Indirectly by, through or under Tenant, and theretJpon writ of possession may forthwith
issue and be served, without any prior notice, writ or proceeding whatsoever except as may otherwise be required by
applicable law; (11) W, for any raason alIer the foregoing action or actions shall have been commenced, It shall be
determined that possession of the Premls.. should remain In or be restored to Tenant, Landlord shall have the right to
commence one or more further actions as hereinbefore set forth to recover posselSlon of the Premises Including, without
limitation, appearing for Tenant and conteaslng or otherwise entering judgment for possHslon of the Premises as
hereinbefore set forth; and (Ill) the provisions of Section 16.02(d) are Incorporated herein by this reference thereto.
(d) In any action or proceeding described In Section 16,02(b) and/or Section 16,02(c), or in connection
therewith, If a copy of this Lease is therein verified by Landlord or someone acting for Landlord to be a true and correct
copy of this Lease (and such copy shall be conclusively prasumed to be true and correct by virtue of such verification),
then It shall not be necessary to file the original of this Lease, any statute, rule of court of law, custom or practice to the
contrary notwithstanding. Tenant hereby releases to Landlord. anyone acting for Landlord and all attorneys who may
appear for Tenant all errors in procedure regarding the entry of judgment or judgments by confession or otherwise by
virtue of the warrants of attorney contained in this Lease, and all liability therefor. The right to enter judgment or judgments
by confession or otherwise by virtue of the warrants of attorney contained in this Lease and to enforce ail of the other
provisions of this Lease may be exercised by any assignee of Landlord's right, title and Interest In this Lease in such
assignee's own name, any statute, Nie of court or law, custom or practice to the contrary notwithstanding.
(e) Tenant expressly waives:
(I) The benefit of all laws, now or hereinafter in force. exempting any goods in the Premises or
elsewhere from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease.
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(i1) The benefil of .1I1.ws now m.de or which m.y h.r..ft.r be m.d. regarding .ny limitation .s to
th. goods upon which, or th. time within which, dlslr.ss Is 10 be m.d. .ft.r the r.mov.1 of goods, .nd T.n.nt furth.r
rell.v.s Landlord of the obligation of proving or id.ntlfying such goods; It being Ih. purpose .nd Inl.nl of this provision th.1
.11 goods of T.n.nt wheth.r upon the Premises or not, Shill be lIible to dlstr.ss for rent.
(ill) The rtghl to Issue. wrll of repl.vin for lhe r.cov.ry of .ny goods s.lzed und.r . distress for R.nt
or levy upon an execution for Rent, damages or otherwise.
(Iv) The right to delay execution on any real estate that may be levied upon to ccNlect any amount
which may become due under the terms and conditions of this Lease and any right to have the same appraised. The
Prothonotary or CI.rk of Court Is her.by .uthorized .nd .mpowered by T.n.nt .1 L.ndlord's inst.nc. to .nt.r . writ of
execution or other process upon Tenant's voluntary waiver and further agrees that said real estate may be sold on a writ of
execution Or other process.
(v) All rights und.r Act of AprilS, 1957, No 20 .nd.1I suppl.m.nts .nd .mendm.nls Iher.lo, her.by
authorizing the sale of any goods dlstrained for rent at any time after seven (7) days from said distraint without any
appraisement and condemnation thereof.
(vi) Th. rJght to thr.. (3) months .nd/or fofteen (15) or thirty (30) d.ys' notice required und.r certain
circumstances, or any other notice required or otherwise provided by statute 8S a condition to the commencement of
summary proceedings or an aetton for possession or to the termination of this Lease or any retaking of possession, Tenant
hereby agreeing that the respective notice periods provided for In this Lease shall be sufficient In any such case.
Section 16.03: DAMAGES.
(a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this
Leas., Landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
terms .nd conditions .s Landlord shell deem .ppropri.te (which m.y be I.ss th.n or .xceed th. bal.nce of the T .rm),
and to the extent Landlord receives the Rent therefor, Landlord shall apply the same first to the payment of such expenses
as Landlord may have incurred In recovering possession of the Premises (including, without limitation, legal expenses and
.ttorn.ys' fees) .nd for putting the Pr.mlses Into good order .nd condition .nd repairing or remodeling or .Itering the
same for relettlng, and any other expenses, commissions and charges paid, assumed or Incurred by or on behalf of
Landlord In connection with the r.l.ttlng of th. Preml..s (collectively the "Coale of Relelllng"), .nd then to the fulfHlm.nt
of the covenants of Tenant under this Leale. Tenant shall pay to Landlord the Rent up to the time of such termination of
Tenant's right to possession under this lease, and thereafter, Tenant covenants to pay Landlord until the end of the Term
of this L.... th. equivalent of the amount of R.nt under this L.... less th. net .v.i1s of such relettlng. W eny, during Ih.
sam. parlod, .nd the ..m. shell be due end payable by Ten.nt to L.ndlord on the dates such R.nt Is due und.r this
L..s.. Any rei.ltlng by Landlord sh.1I not be construed .s .n .Iectlon on the p.rt of the Landlord to termlnet. this Le.se
unless a notice of such Intention Is given by Landlord to Tenant. Notwithstanding any relett1ng without termination of this
Lease, Landlord may at any time thereafter elect to terminate this lease. In any event, Landlord shall not be liable for, nor
sh.1I Ten.nt's obligations h.reunder be diminished by reason of eny failure by L.ndlord 10 rei.t th. Pr.mlses or .ny f.llure
by Landlord to collect any sums due upon such reletting. Tenant shall not be entltied to any Rent received by landlord in
excess of Rent provided for In this lease. Landlord may file suit to recover any sums falling due under the terms of this
subsection from time to time, and no suit or recovery of any portion due landlord hereunder shall be a defense to any
subsequent action brought for any amount not theretofore reduced to judgment in favor of Landlord.
(b) If Landlord elects to terminate this Lease instead of terminating only Tensnrs right to possession,
Landlord shall have the right to immediately recover against Tenant as damages for 1088 of the bargain, and not as a
pan.lty, the .xcess (W .ny), .s det.rmlned by L.ndlord, of (I) the pres.nt velue of the projected R.nt p.yabl. by T.n.nt
under this Lease (as determined by Landlord on the basis of the amounts of Additional Rent which would have been
payable pursuant to this Lease for the full calendar year prior to the calendar year in which the default occurred, increasing
annually on the first of each year after such calendar year at the rate of six percent (6%) per annum compounded) that
would have accrued for the balance of the Term plus any other amount necessary to compensate Landlord for all
detriments proximately caused by Tenant's failure to perform its obligations under this Lease, including reasonable
.ttorn.ys fees and Int.rest on .11 sums due Landlord at the Def.ult Rate (h.reaft.r defined). less (II) the th.n pr.s.nl f.lr
market rental value of the Premises for the balance of the Term as reasonably determined by Landlord, taking into account
among other things, the condition of the Premises, market cond"lons and the period of time the Premises may remain
vacant before Landlord Is able to relet the same to a suitable replacement tenant, and the Coati of Reletting (as defined
.bove) th.t Landlord m.y Incur In order to .nt.r Into. replacement I.... ("Benefit of the Bergeln Dem_"),
Notwithstanding anything to the contrary contained in this lease, If, subsequent to the termination of this Lease and the
recovery of d.m.ges from T.nent pUnlu.nt to this subsection (b), L.ndlord relets the Preml..s for .n effectlv. R.nt
higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Camages, the Benefit of the
B.rg.ln D.m.g.s sh.1I not be recelculated .nd L.ndlord sh.1I b. .ntltled 10 retain .11 of Ih. proceeds of such relettlng.
(c) The "o.fault Rate" 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 selected by Landlord.
Section 16.04: LANDLORD'S SeLF-HELP,
In .ddltlon to Landlord's rtghts to seW-help s.t forth .Isewher. In this L..s., W T.nent 01 .ny tlm. f.lls to p.rform
any of Its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right, but
not the obligation. upon giving Tenant at least three (3) days prior wri\ten notice of Its election to do 10 (in the event of any
emergency no prior notice shall be required) to perform such obllgattons on behalf of and for the account of Tenant and to
take all such action to perform such obligations. In such event, Landlord's COlts and expenses incurred the~n shall be
paid for by Tenant as Additional Rent, forthwfth, upon demand therefor, wfth interest thereon from the date Landlord
performs such work at the Default Rate. The performance by Landlord of any such obligation shall not constitute a release
or waiver of Tenant therefrom.
Section 16.05: LeGAL EXPENSES.
(a) In the event that Landlord should retain counsel and/or institute any suit against Tenant for violation of or
to enforce any of the covenants or conditions of this lease, or should Tenant Institute any action against Landlord for
violation of any covenants or conditions of this Lease, or should either party Institute a suit against the other for a
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declaration of rights hereunder, or should either party Intervene in any suit in which the other is a party, to enforce or
p'roter:t Its Interests or rights hereunder, the prevailing party in any such suit shall be entitled to aU Its costs, expenses and
reasonable fees to its attomey(s) In connection therewith.
(b) In the event that a bankruptcy proceeding is flied by or ageinst Tenant under any chapter of the
Bankruptcy Code, or Tenant makes an aslgnment for the benefit of creditors or commences or otherwise become. the
subject of any Insolvency, recelvershlp or similar proceeding. Landlord shall be entitled to recover Its reasonable attomeys'
fees and costs Incurred In or In connection with any such proceeding from Tenant or any trustee, custodian, receiver,
assignee or other representative ectlng on Its behaW, all of which f_ and expen... shall conatllute. in addltJon to any
other sums due and owing under this Lease (I) an obllgatlon of Tenant hereunder, and (II) a component of any cure claim
assertable by Landlord under 11 U,S,C. ~ 365(b) of otherwise,
ARTICLE 17: LIABILITY OF LANDLORD
Section 17,01: LANDLORD'S DEFAULT.
Except as otherwise provided in this Lease, Landlord shall be In default under this Lease If Landlord fails to
perform any of lis obligations hereunder and said failure continues for a period of thirty (30) days after written notice
thereof from Tenant to Landlord (unless such failure cannot reasonably be cured within thirty (30) days and Landlord shall
have commenced to cure said failure within said thirty (30) days and continues dlllgenUy 10 pursue the curing of the same).
If Landlord shall be In default under this Lease and, W, as a consequence of such delauh, Tenant shall recover a money
judgment agolnat Landlord, such judgment shall be satisfied only out of the proceeds of sale received upon execution of
such judgment and levied thereon against the right. title and Inleretlt of Landlord In the Shopping Center as the same may
then be encumbered and Landlord shall not be liable for any deficiency, In no event shall Tenant have the right to levy
executlon agolnat any property of Landlord other than Landlord's right, tlUe and Interest In the Shopping Center as
hereinbefore expressly provided. No default by Landlord under this Lease shall give Tenant the right to terminate this
Lease.
Section 17.02: TRANSFER OF LANDLORD'S INTEREST.
In the event of the sale or other transfer of Landlord's right, title and interest in the Premises or the Shopping
Center (except in the case of a sale-leaaeback financing transaction in which Landlord Is the lessee), Landlord shall
transfer and assign to such purchaser or transferee any portion of the Security Deposit which may then be held by
Landlord pursuant to Sectlon 2,02 of this Lease, and Landlord thereupon and without further act by either party hereto sha"
be released from all "ablllty and obligations hereunder derived from this Lease arising out of any act, occurrence or
omission AMBtlng to the Premises or this Lease occurring after the consummation of such sale or transfer. Tenant shall
have no right to terminate this Lease nor to abate Rent nor to deduct from nor set-off nor counterclaim against Rent
because of any sale or transfar (including without limitation eny sale-leaseback) by Landlord or Its grantees, successors or
essigns, Neither Landlord's mortgagee (or Its desig_) nor the purchaser at e foreclosure sale shall be liable to Tenant
for the retum of Tenanh Security Caposh unless and until Landlord actually delivers the Security Deposit to such
mortgagee or purchaser or their designee.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 16.01: SUBORDINATION OF LEASE.
Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be. subject and subordinate to
any leasa wherein Landlord Is the lessee and to the lien of any or all mort_s or deeds of trust, regardless of whether
such Iesse. mortgages or deeds of trust now exist or mey hereafter be created with __rd to all or any part of the
Shopping Center, and to any and all advances to be made thereundar, and to the Interest thereon, and all modifications,
consolidations. re.-Is, replacements end extensions thereof. Such subordlnatlon .hall be elfectlve without the
execution of any further Instrument. Tenant also agrees that any lessor, mortgagee or trustee may eiect to have this
Lea.e prior to any lee.. or lien of Its mortgage or deed of trust. and In the event of such _n and upon notIfIcatlon by
such lessor, mortgagee or trustee to Tenant to that effect. this Lease shall be deemed prior In lI.n to the said leue,
mortgage or deed of trust, whether this Lea.. Is dated prior to or subsequent to the date of said iease, mort_ or deed
of trust.
Seellon 18.02: TENANT'S ATTORNMENT.
In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed of trust referred
to In Section 18.01 covering the Premises or In the event of the termination of any lean referred to in Section 18.01
wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attorn to and recognize the purchaser
or Landlord's lessor as Landlord under this Lease.
Section 18.03: INSTRUMENTS TO CARRY OUT INTENT,
Tenant agrees that, upon the request of Landlord. or any such lessor. mortgagee or trustee. Tenant shall execute
and deliver whatever Instruments may be required for such purposes and to carry out the intent of this Article 18, and in
the event Tenant fails to do so within fifteen (15) days after demand in writing, Tenant shall be deemed to have committed
an Event of Default.
Any document executed by Tenant evidencing such subordination shall provide that Landlord's mortgagee or such
purchaser shall not be liable for any action or omission of any prior landlord (Including Landlord) under the Lease, subject
to any off sets, claims or defenses which Tenant might have against prior landlord (Including Landlord), bound by any Rent
which Tenant might have paid for more then the current month to any prior landlord (Including Landlord), bound by any
amendment or modification of the Lease or any other agreement concerning the LeaH made without mortgagee'. written
consent or responsible in any way for any security deposit which was delivered to Landlord but was not subsequently
delivered to such mortgagee or purchaser.
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ARTICLE 19: ESTOPPEL CERTIFICATES
Section 18,01: TENANT'S AGREEMENT TO DELIVER.
From time to time within twenty (20) clays after request In writing therefor from Landlord, Tenent _ to execute
and deliver to Landlord. or to .uch other addres... or addr...... a. Landlord mey d..lgnate (and Landlord and any such
addres... may rely thereon), a .tetement In writing In form and .ub.tence sati.factory to Landlord (herein called
"1'....nt.. Eatoppel CertlfIcaltI"), certifying a. to .uch matters a. may be reasonably req_ted by Landlord. Tenant
expre..ly agree. that Landlord maya..lgn ns Intere.tln the Tenant's Estoppel Certificate to n. lender(s) at any time who
may act in material reliance thereon.
Section 19.02: FAILURE OF TENANT TO PROVIDE.
In the event that Tenant falls to provide a Tenant's Estoppel Certtflcate within twenty (20) days after Landlord's
written request therefor, Tenant shall be deemed to have committed an Event of Default.
ARTICLE 20: QUIET ENJOYMENT
Section 20.01: FAITHFUL PERFORMANCE,
Upon payment by the Tenant of the Rent herein provided fOf, and upon the observance and performance of all of
the agreements, covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peaceably
and Quietly hold and enjoy the Premise. for the Term without hlndrence or Interruption by Landlord or any other person or
person. lawfully or equitably c1elmlng by, through or under Landlord, subject, neverthele.., to the terms and condnlon. of
this Lease, and mortgages. leases and other matters to which this Lease Is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Sactlon 21.01: DELIVERY AFTER TERM.
Tenant .hall deliver up end .urrender to Landlord pos....lon of the Preml... upon the expiration or eerller
termlnetlon of the Term, broom c1een, free of debrl., In good order, condnlon end .tete of repair and In compllence with
Section 14,01 (excepting Landlord'. obligation under thl. Lee.e, damage by casualty and ordlnery wear and tear), and
.hell deliver the keys to the menagement office of Lendlord or to .uch other piace e. mey be designated from time to time
by notice from Landlord to Tenant, ~ not sooner terminated e. herein provided, this Lee.e .hell termlnete et the end of the
Term a. provided for In Article 3 without the nece.slty of notice from enher Landlord or Tenant to termlnete the same.
Section 21.02: EFFECT OF HOLDING OVER; RENT.
If Tenant or any party claiming under Tenant remains In possession of the Premises or any part thereof., after any
expiration or termination of this Lease, no tenancy or Interest In the Premises shall result therefrom but such holding over
.hall be an unlawful detelner and ell such parties .hell be .ubject to Immediate ouster and removal, and (a) Tenant shall
pey upon demend to Landlord for any period when Tenant .hell hold the Preml... after the Term ha. terminated or
expired, es liquidated rent for .uch period, a .um equel to ell Percentage Rent and Addltionel Rent provided for In thl.
Lea.. plus en amount computed et the rete of double the Minimum Rent for .uch period, and (b) Tenant .helllndemnlfy
and hold harml... Landlord from all loa., coat, expen.e end lIeblllty whetsoever resutttng from .uch holding over,
Including, without limiting the generellty of the foregoing, any claims made by any succeeding tenant based on such
holding over.
ARTICLE 22: CONDEMNATION
Sactlon 22.01: ALL OF PREMISES TAKEN.
If the whole or any part of the Premises shall be taken or condemned either permanentty or temporarily for any
public or Qua.l-publlc u.e or purpo.e by any competent euthorlty In appropriation proceedings or by any right of eminent
domain or by agreement or conveyance In lieu thereof (each being hereinafter referred to as "Condemnation"), thl. Lea.e
.hell terminate e. of the day po..e..lon .hell be taken by .uch authority, and Tenant .hell pay Rent and perform ell of Ita
other obligation. under this Lee.e up to that date with e proportionate refund by Landlord of any Rent .. .hell have been
paid In advance for e period .ubseQuent to the date of th. teklng of pos....lon, Tenant shall remove the kiosk at the time
of termination and shall not participate in any condemnation award which may be payable.
ARTICLE 23: MISCELLANEOUS
Sactlon 23.01: INTERPRETATION.
(8) The captions, table of contents and Index of defined terms appearing in thts lease are Inserted only as a
matter of convenience and In no way amplify, define, limit, construe, or describe the scope or Intent of such Sections of
this Lease nor in any way affect this Lease.
(b) If more than one person or corporetlon is namad e. Landlord or Tenant In thl. Leese and execute. the
same as such, or becomes Landlord or Tenant, then and In such event, the 'NOrds "Landlord" or "Tenanr wherever used in
this Lease are Intended 10 refer to all such persons or corporations, and the liability oflUch person. or corporations for
compliance with and performance of all the terms, covenanls and provisions of this Lease shall be joint and several.
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. (c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other
gen.ders and the use of the singular shall include the plural.
(d) Th. partie. h.r.to agree that .11 tho provl.ion. of thi. l.... .r. to be con.trued as cov.n.nts .nd
.greements .. though tho word. Importing .uch covenant. .nd agreem.nts wore used In each ..parate provision hoteOf,
Furth.rmor., ..ch coven.nt, agreem.nt, obligation .nd oth.r provl.lon contained In thl. l.... I., .nd .h.11 be deemed
and construed as a seperate and Independent covenant of the party bound by, undertaking or make the same, and not
dependent on any other provision of this Lease unless expressly so provided.
(.) Although tho provl.lon. of thl. l.... were drawn by Landlord, thl. L.... .h.1I not be con.tru.d for or
against Landlord or Tenant, but this Lease shall be Interpreted in accordance with the general tenor of the language In an
effort to reach the Intended result.
Soctlon 23,02: RELATIONSHIP OF PARTIES.
Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party, 8S creating the
relationship of principal and agent or of partnership or of joint venture between the parties hereto, It being understood and
.greed th.t neither tho method of computation of P.rcentage R.nt, nor .ny other provi.lon contained h.r.ln, nor .ny act.
of the parties herein, shall be deemed to create any relationship between the parties hereto other than the relationship of
landlord and tenant nor cause Landlord to be responsible in any way for acts, debts or obligations of Tenant.
Section 23.03: NOTICES.
Any notice, demand, request, approval, consent or other instrument which may be or Is required to be given under
thl. l.... .hall be In writing, .nd, .h.1I be deemed to have been giv.n (.) when m.lled by United Stat.. regl.tered or
c.rtlfled m.lI, return receipt requested, po.tage pr.pald and received or refu.ed by the addre..ee, or (b) wh.n ..nt by
courl.r guarantying overnight d.llvery, addres.ed to landlord or T.nant at tho r..pective addre.... .ot forth In tho
Fundamental Lease Provisions and/or such other address or addresses as either party may designate by notice to the
other in accord.nce with thl. Section .nd received or refused by the .ddre...., Any notJco by tho Landlord m.y be giv.n
on Its beh.W by Agent or by .n .ttorney for l.ndlord or Agent. Any notice properly ..nt to T.n.nt .h.1I be deem.d
effective whether or not a copy is sent to the address designated in the Fundamental Lease Provisions to receive a copy of
such notice,
Soctlon 23.04: SUCCESSORS,
This l...e .nd th. cov.n.nts .nd condnlon. herain contained .hall inure to the benefit of .nd be binding upon
(subject to ArIicl. 17) Landlord, Its .uccessors .nd .sslgn., .nd .hall be binding upon Tenant, Its heirs, .uccessors .nd
assigns and shall Inure to the benefit of Tenant and only such alllgns of Tenant to whom the assignment by Tenant has
been con..nted to by Landlord in writing, Nothing In thl. Section 23,04 .h.1I be deemed to require l.ndlord to give .ny
.uch consent. All of T.nanr. obligation. durlng tho T.rm pursu.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.
Soctlon 23.05: BROKER'S COMMISSION,
Tenant warrants that, except for Agent, it has dealt with no broker in connection with this Lease, and agrees to and
shall defend, indemnify and save Landlord harmless from all claims, actions, damages, coats and expenses and liability
whatsoever, Including reasonable attorneys' fees, that may arise from any dalm by or through Tenant for a commission,
finders or like fee In connection with this Lease. Landlord shall pay the fee or commission due Agent in connection with
this Lease.
Section 23.06: UNAVOIDABLE DELAYS.
In the event that either party hereto shall be deJayed or hindered In or prevented from the performance of any act
required hereunder by reason of strikes, lockouts, Inability to procure labor or materials, failure of power, restrictive
governm.ntallaws or regulation., riots, In.urrectlon, wer (wh.th.r ectu.1 or thre.t.ned), lack of access to the Shopping
Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a similar or dlsslmllar
n.tura beyond the re.sonabl. control of tho perty del.yed In perlormlng work or doing act. required under the terms of this
Lease, then performance of such act, but not Tenant's obltgatlon to pay Rent, shall be excused for the period of the delay
and the perlocl for the perfonnance of any such act ahall be extended for a period equivalent to the period of such delay.
During Tenant's Construction Period the provisions of this Section 23.06 shall not operate to excuse Tenant from
completing construction of the Premises within Tenanrs Construction PerIocI unleSl Tenant give. written notice of the
d.laying .v.nt to Landlord within t.n (10) d.ys of the occurrence of .uch del.ying .vent. Such wrm.n notice .hell.poclfy
tho n.ture of th. delaying ov.nt .nd tho number of d.ys of del.y cl.lmed to result therefrom, T.n.nt'. Con.truction
Period shall be extended for a period equivalent to the period of actual delay. After the Rent Commencement Date the
provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all other sums due by
T.n.nt und.r this l.... .nd such d.l.y .hell not extend the Term, DeI.ys or f.Uure. to perlonn resunlng from I.ck of
funds or the unavailability of a particular contractor or personnel shall not be deemed delays beyond the reasonable control
of . p.rty,
Section 23.07: SEVERABilITY.
It Is the intention of the parties hereto that if any provision of this Lease is capatH of two constructions, one of
which would render the provl.lon Inv.lld .nd tho other of which would render tho provi.lon v.lld, then tho provl.lon .h.1I
hev. tho m..nlng which rend.rs it v.lld, W .ny t.rm or provl.lon, or .ny portion theraof, of thl. l...., or the .pplicatlon
thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to the persona or circumstances other than thoee as to which It Is hetd Invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to
the full..t .xt.nt permitted by law,
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Section 23.08: TIME OF ESSENCE.
Time Is of the essence with respect to the performance of the respective obligations of Landlord and Tenant set
forth In this Lease,
Section 23,09: OTHER TENANTS; RELOCATION OR TERMINATION.
(a> Landlord reserves the absolute right to effect such other tenancies in the Shopping Center as Landlord
shall determine in the exercise of its sole business judgment. Tenant hereby acknowledges that (i) this Lease contains no
restrictlve covenants or exclusives in favor of Tenant; (Ii) this Lease shall not be deemed or Interpreted to contain, by
Implication or otherwise. any warranty, representation or agreement on the part of Landlord that any department store or
regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any
premises In or adjoining the Shopping Center during tha Term or any part thereof or that Tenant shall generete a certain
amount of Gross Sales or thet any reimbursable amount payable by Tenant shall be any specific amount, and Tenant
hereby expressly waives all claims with respect therato and acknowledges that Tenant Is not relying on any such warranty,
representation or agreement by Landlord either as a matter of inducement In entering Into this Leale or as condition of this
Lease or as a covenant by Landlord.
(b) During the Term or any renewals or extension thereof, Landlord may expand, renoyate, r.merchandise or
otherwise changa the size or configuration of the Shopping Center or Landlord's Building and In connection therewith
Landlord may require that Tenant surrender possession of the Premises either temporarily or permanently. Accordingly,
Landlord reserves the right In such event, In Landlord's sole and absolute discretion, to either (i) offer to amend this Lease
to relocate Tenant's kiosk to another kiosk location within the Shopping Center on the same terms and conditions as those
contained in this Lease. either on a temporary basis or for the balance of the Tarm, or (ii) termlnate.thls Lease in axchange
for paying Tenant an amount equal to the unamortized net cost to Tenant of its kiosk, which unamortized net cost shall be
calculated using a straight line amortization schedule and an amortization period equal to the Rent Term plus any
previously exercised renewal options afforded by this Lease, Landlord shall exercise Its right set forth in this Section upon
prior written notice to Tenant ("LIIndlord'. Notla-) which shallspeolfy whether Landlord electa to amend this Lease and If
so, Include the proposed lease amendment Of to terminate the same, Tenant shall deliver to Landlord wnhin ten (10) daya
after Landlord's Notice Indlcetlng Landlord's desire to terminate this Lease, reasonably detailed evidence substantieting
Tenant's unamortized net cost of its kiosk and Landlord shall have the right to verify the accuracy thereof, Landlord
reserves the right to rescind Landlord's Notice of termination within ten (10) days after .....Ipt of Tenant's evidence
substantiating Tenant's unamortized net cost of Its kiosk and may In lieu of terminating the same, elect to relocate
Tenant's kiosk to another kiosk location in accordance with the provisions of (b) above. Any proposed amendment to the
Lease shali efford Tenant at least sixty (60) days aftar the date of Landlord's Notice before Tenant shall be required to
surrender possession of the Premises andlor relocate. In the event Landlord elects to terminate this Lease, such notice
shall provide that such termination shall not be effective for at least sixty (60) days aftar the date of Tenant's receipt of
Landlord's Notice. In the event Tenant desires to execute such amendment, It shall do so within fifteen (15) days follOWing
Its receipt of the same and If Tenant falls to do so, Landlord shall have the further right at any time thereafter to terminate
this Lease in accordance with the provisions of (il) above. Tenant shall vacate the Premlus and surrender possesslon
thereof to Landlord not later than the date spaclfied In Landlord's Notice and In accordance with the terms of this Lease,
Landlord will pay Tenant Ita unamortized net coat of Tenant's kiosk with.in ten (10) daya after Tenant vacates the Premises.
Tenant agrees that the execution of the lean amendment or its receipt of the payment of the consideration for the lease
termination in accordance with (II) above shall be Tenant's sole remedy in the event Tenant Is required to surrender
possession of the Premises as provided in this Section.
Landlord agrees that If Tenant elects to execute the lease amendment referred to above which provides for either
a temporary or a permanent relocation of Tenant's klolk, Landlord shall, at Landlord's 101e COlt and expense, move and
Instell Tenant's kiosk at the new kiosk location designated by Landlord, end In the event of a temporary reiocation,
Landlord shall also, at Landlord'. sole cost and expense, move Tenant's kiosk back and re-Install the same at the
Premises originally demised hereundar.
Section 23.10: APPLICABLE LAW.
The laws of the state In which Landiord's BuUdlng Is located shall govern the validity, performance and
enforcement of this Lease, Welther party institutes legelsuU or action for enforcement of any obligation contained herein,
n Is agreed thet venue for such suU or action shall be In the stele in which the Premises are located,
Section 23.11: WAIVER.
(a) The waiver by Landlord of any tenn, covenant, agreement Of condition herein contained shall not be
deemed to be a waiver of any aubsequent breach of the same or any other terms, covenant, agreement or condition herein
contained, The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, agreement or condition of this Lease. other than the failure of Tenant
to pay tha particular Rent so accepted, r_rdless of Landlord's knowledge of such preceding breech at the time of
acceptance of such Rent. No covenant. term, agreement or condition of this Lease shall be deemed to have been waived
by Landlord, unless such waiver be in wrlting and executed by Landlord.
(b) No waiver of any covenant, term, agreement or condition of this Lease or legsl right or remedy shall be
Impttecl 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 shall constitute a waiver in
favor of any other tenant. Landlord's consent to, or approval of, any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent similar
act by Tenant. No consent or approval by Landlord shall operate to change any condition, requirement or other provlskm
of this Lease on any occasion unless made in writing and executed 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 than the Rent herein stipulated shall be deemed
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. to be other than on account of the earliast stipulated Rent nor shall any endorsement or statement on any check or any
letter accompenylng eny such check or peyment as Rent or the like be deemed an accord and satisfaction, and Landlord
mey accept such check or peyment wtthout prejudice to Landlord's rights and remedies to recover the balance of such
Rent or pursue any other right and remedy provided for In this Lease or avalleble at law or In equity, " Landlord shall direct
Tenant to pay Rent to e 'ockbox" or other depository whereby checks issued In payment of Rent ar. In~lally ceshed or
deposited by a P8f8on or entity other than Landlord (albe~ on Landlord's authority) then. for any and all purposes under
this Leese: (a) Landlord shall not be deemed to have accepted such payment until ninety (90) days after the date on which
Landlord shall have actually """,Ived such funds, (b) Landiord shall be deemed to have accepted such payment" (and
only If) wtthln said ninety (90) dey perlod. Landlord shall not heve refunded (or ellempted to refund) such peyment to
Tenant and (c) Landlord shall not be bound by any endorsement or stetement on any check or any leller accompanying
any check or payment and no such endorsement. statement or tetter shall be deemed an accord and satJsfactlon.
Landlord or Landlord's bank may accept such check or payment without prejudice to Landlord's right to recover the
balance of such rent or pursue any other remedy provided In this Lease. at law or In equity. Nothing contained in the
Immediately preceding sentence shall be construed to place Tenant In default of Tenant's obligeUon to pay Rent" and for
80 long as Tenant shall timely pay the Rent required pursuant to this Lease In the manner designated by Landlord.
Socllon 23.13: CORPORATE TENANTS.
In the event the Tenant hereunder Is a corporation, the persons executing this Lease on behalf of the Tenant
hereby ,",venant and warrant that: the Tenant Is e duly conatlMed corporation qualJfJad to do business in the stete In which
Landlord's Building Is located; all Tenant's franchise, corporete and other lienable taxes have been paid to date; all future
fonns. reports, fees and other documents necessary for Tenant to comply wtth applicable laws witl be flied by Tenant when
due; and such persons are duly authorlzad by the governing body of such corporation to execute and deliver this Lease
(Including the warrant and/or power of allorney provisions contelned In Section 16,02) on behalf of the corporation,
Socllon 23.14: TENANT'S GUARANTOR.
Deleted.
Section 23.15: RECORDING.
This Leaae shall not be recorded; however Landlord shall have the right to record a short form or memorandum
thereof, at landlorch expense, at any time during the term hereof, and Tenant shall execute same.
Socllon 23.18: AGENT OF LANDLORD.
Agent has acted as an agent of Landlord In connection With the execution of this Lease and shall not In any event
be held liable to the Landlord or to Tenant for the fulfillment or non-fulfillment of any of the tenns or conditions of this
Lease or for any ectIon or proceeding that may be teken by Landlord egelnst Tenant, or by Tenent agelnst Landlord, Any
waiver of Landlord's liability hereunder, Including any waiver of subrogation rlghts. shall apply wtth equal force and effect
to. and as a waiver of any l/abillty of. Agent.
Section 23.17: HAZARDOUS MATERIAL.
(a) As used herein the tenn "haardoua matarlal" means any flammeble. explosive, medical. human or
animal tissues or substances, hazardous or toxic sulntance, materiat or waste (Including, without limitation, 8sbestos and
chlorofluorocarbons) which has been. or In the future is. determined by any state. federal or local governmental authority or
any law, ordinance, statute, governmentel rule or rllQtllalion to be capable of posing a risk of Injury to health, sately or
property andlor the use, storage .ndlor disposal of which Is regulated by any governmentel authority. Including, without
Ilmlt8tJon, all of those materials and substances designated as hazardoua or toxic by the local government having
jurlsdlctlon over the Premises. the U.S, Envlronmentel Protection Agency, the Consumer Products Safely Commission. the
Food and Drug Administration or any other govemmentel agency now or hereafter authorized to regulate materials and
subatence, Tenant shell not cause or pennlt any hazardous material to be instelled In the Preml8el as a pert of 7enant's
Work or otherwise brought upon, used, kept. stored or disposed of In or about the Premises or the Shopping Center by
Tenant. ns agents, employees, contractors or inv~_, NotWilhatanding the foregoing, Tenant may handle. store, use and
dispose of products contelnlng small quantities of hazardous matarlals (such as aerosol cans contelnlng Insecticides, toner
for copiars, paints. varnlshas and cleaning supplies) of Insignificant quant~les stored In sealed conteiners and used In
accordance with manufacturers' requirements.
(b) if the Premises, any equipment (including, withoulllmllation, HVAC equipment). trade fixturas or other
mechanical apparatus therein contain any hazardous matertals Installed by Tenant, itl agents, employees, contractors or
invitees, Landlord, at lts election, shall have the right to (0 cause Tenant to remOVe and property dispose of same, all at
Tenant's sole cost and expense, in accordance with applicable law and means and methods approved in advance by
Landlord and Ita professional consultents, and Landlord shall have the right to monitor such work or (II) perfonn the
removal and disposal thereof Itself, In which event Tenant shall comply with all reasonabte requirements Imposed by
Landlord with respect to the performance of such work, Including without limitation closing the Premises for business and
remaining closed during the performance of such work. and Tenant shaJJ rejmbursa Landlord. on demand. for the cost
incurred by Landlord in performing such removal (including landlord's cost of professional consultants).
(c) Tenant shall:
(i) Promptly provide Landlord With copies of any document, correspondence,
report or communication, written or oral, relating to hazardous materials
at or affecting the Shopping Center (x) to or from any regulatory body. or
(y) stating a basis for any potential liability .or responsibility of Tenant,
Landlord. or the Shopping Center; inclUding oil such documents,
correspondence, reports or communicati0n8 prepared by or on behalf of
Tenant. In addition to the above, at Landlord's requRt, Tenant shall
provide copias of any and all records and communications whatsoever
relating to hazardous materials at or affecting the Shopping Center.
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(II) Immedlataly notify Landlord In tha avant of a suspected or confirmed
release of a hazardous material or violation of environmental laws at or
affactlng the Shopping Canter and caused by or related to the _rations
of Tanant, Its amployees, contractors, agents, or .ny party acting on
bahaij of Tanant and, at Landlord's sola option, either promptly remedlate
or correct such release or violation to Landlord's aatlsfactlon or reimburse
Landlord's cost of remediation (Including reaaonable attorneys' and
consultants' feas) all as set forth In (b) above: and compensata Landlord
andlor third parties for all resultant damage.
(III) Permit Landlord raasonable access to the Premlsaa for the purposa of
conducting an environmental audit or testing, the cost of which shell ba
borne by Landlord unles8 the results Indicate activity prohibited by
'environmental laws or hereunder.
(d) In accordance with the Occupational Safety and Health Administration Asbastos Rule (1995), 59 Fed.
Reg. 40964, as amended and supplamented ("OSHA As_os Rule"), Landlord heraby notifies Tenant of lI1e presence
or possible presence of asbestos containing materials ("ACMe") andlor presumed asbeltos containing materials
("PACMs") (as such terms are defined In the OSHA Asbastos Rula) wlll1ln the Pramlses or adjoining anclosed common
areas, W any. The ACMs and PACMs may take the form of pipe wrap, vinyl asbestos flooring, spreyed on or trowled on fire
proofing, acoustical p1astar, insulation, textured calling paint and other forms, The spaclflc location of any ACMs or
PACMs within the Premises or adjoining Common Areas may ba ascertained by Tenant requesting In writing from
Landlord, without cost or expense to Tenant, the applicable portions of any environmental impact survey conducted by
Landlord regarding the Shopping Center. The purpose of Landlord's notification Is to make Tenant, Its agents, employees
and contractors aware of the presence or poSSible prasence of ACMs and/or PACMs In the Shopping Canter In order to
avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during the progress of Tenanh Work
and/or Construction Work, Tenant shall obtain a signed acknowledgment from Its agents, employees and contractors
-'<Ing In or about the Pramlses Indicating that such agents, employees and contractors are aware of the presence or
possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to disturb the same during the
performance of Tenanh Work andlor Construction Work, At Landlord's request, Tenant shall deliver to Landlord copies
of such signed acknowledgments,
(e) Tenant shall comply wllI1 all applicable Govemmental Requirements affecting the Pramises, the operation
of Tenant's business at the Premises, and lI1e use and removal of any substances therefrom, Including, without limitation,
hazardous materials installed by Tenant, its agents, employees, contractors or invttees, Such compliance shall include.
inter alia: (I) the filing by Tenant of ali govemmental applications and registrations for all substances used, stored,
manufactured, generated or otherwise In tha Premises: (Ii) the obtaining of all licenses and permits wllI1 respect lI1erato:
(iii) the timely flllng from time to time, as requlrad, of all reports and other matters required to be flied with govemmental
authorities having Jurisdiction: and (Iv) notifying aach of Its agents, employees and contractors of the presence or
presumed presence of ACMs and PACMs wtthln the Shopping Center as set forth above.
(I) Tenant shall protact, defend, Indemnify and hold Landlord harmless of, from and against all claims,
actions, liens, demands, costs, damages. punitive damages, expenses, fines and judgments (lnduding legal costs and
attorneys feas) Incurred by reaaon of any actual or asserted failure of Tenant to fully comply with the provisions of this
Section 23.17 and/or spills or other contamination of air, soli, or water by or resulting from any hazardous materials
Installed by Tenant, Its agents, employees, contractors or Invltees at or around the Premises or the Shopping Center or
resulting from removal thereof,
(g) Upon tan (10) days prior written request from Landlord, Tenant shall axecuta, acknowledge and deliver to
Landlord a written statement In form ..tlsfactory to Landlord certifying (I) W true, that Tenant has not disposed of any 011,
grease, toxic, or hazardous mateMaI. 8t the Premises or (Ii) that any such substances used, procesaed or generated at the
Premises have bean disposed of properly In accordance wllI1 all applicable Govemmental Requirements. If Tenant Is
unable to certify ellher of lI1e above, Tenant shall so notify Landlord and give Landlord the details resulting in Tanant's
Inability to so certify,
(h) Tenant shall surrender the Premises to Landlord upon the expiration or earlier termination of this Laase
free of hazardous materials brought thereon by Tenant and those acting on Its baha~ and In a condlllon which complies
with all Governmental Requirements, recommendations of consultants hired by Landlord, and such other reasonable
requirements as may ba Imposed by Landlord,
(i) This Sactlon shall survive the expiration or sooner termination of this Lease,
Section 23.18: FINALIZATION OF CHARGES,
Notwithstanding anything to the contrary contained In this Lease, Tenant's failure to object to any statement,
Invoice or billing rendered by Landlord within a period of one hundrad eighty (180) days after receipt lI1eraof shall constllute
Tenant's acquiescence with respect thereto and shall render such statement, Invoice or blUing a flnal and binding account
stated batween Landlord and Tenant. Landlord and Tenant intend that the foregoing provision sh.lIsuparsede any right to
audit or request back up documentation from Landlord which may otherwise ba provided by II1ls Leasa and lI1e foregoing
provisions are not Intended to grant any such right to Tenant not otherwise expressly provided In this Lease.
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 from Landlord, delivar to
Landlord such flnanclallnformatlon concerning Tenant, Guarantor and Tenant's and Guarantor's business operations 8S
may be requested by Landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaser.
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, , S!""lon 23.21: SPRINKLeR CHARGe.
Deleted,
Seellon 23.22: NOTICe TO MORTGAGee.
ff the holder of any mortgage which hes a lien against the Shopping Center or any part thereof forwards to Tenent
written notice of the existence of such lien, then Tenant shell, so long as such mortgage is outstanding, be required to give
to such lienholder the same notice and opportunity to correct any defau~ as Is required to be given to Landlord under this
Lease, but such notico of defau~ may be given by Tenent to Landlord and such lienholder concurrantiy.
Seellon 23.23: WAIVeR OF JURY TRIAL.
Landlord and Tenant hereby waive all right to a trial by Jury in any litigation related to this Lease including any
mandatory counterclaim or cross claim. .
Section 23.24: CONFIOeNTIALITY.
It is agreed and understood that Tenant may acknowledge only the existence of this lease by and between
Landlord and Tenant, and that Tenant may not disclose any of the terms and provisions contained in thie Lease to any
tenant or other occupant In the Shopping Center or to any agent, employee. subtenant or ..signee of such tenant or
occupant. Tenant acknowledges that any breach by Tenent of the agreements set forth In this Section 23,24 shall couse
Landlord Irrepareble harm, The terms and provisions of this Section 23,24 shall survive the termination of this Lease
(whether by lapse of time or othOfWtse).
Seellon 23.25: eNTIRe AGReeMeNT,
(a) There are no oral agreements between the parties hereto affecting this Lease, and this Lea.. suparsedes
and cancels any and all previous negotlatlons, arrangements, letters of Intent. lease proposal., brochures. agreements.
representations, proml..s, warranties and understandings between the parties hereto or displayed by Landlord to Tenant
with respect to the subject matter thereof, and none thereof shell be used to Interpret or construe this Lease, The Lease
sets forth all of the covenants. promises, agreements, conditions and understandings between Landlord and Tenant
concerning the Preml..., Landlord's Building and the Shopping Center. No alteretlon, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to wrftlng, signed by them and mutually delivered
between them,
(b) Th. .ubml..lon by Landlord to T.nant of this L_. ahall hava no binding force or aflact. ahall
not constltut. an option for 1_lng of the Praml_ nor confer any rlghta or Im_ any obligation. upon .lth.r
party until the execution th.reof by Landlord and the dallv.ry of an .xecutad original copy tharaof to Tanant.
(c) THE UNDeRSIGNED ACKNOWLeDGES THAT IT FULLY UNDeRSTANDS THE CONFeSSIONS OF
JUDGMENT CONTAINeD IN SeCTION 16,02(b) AND (c) 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 AUTHORizeD BY SUCH
SeCTIONS AND ACKNOWLEDGeS AND AGReeS THAT UPON THe OCCURReNce OF AN eveNT OF DeFAULT
LANDLORD MAY OBTAIN A JUDGMENT AGAINST TENANT AS SeT FORTH IN SUCH SECTION WITHOUT
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 WITHOUT 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 VOLUNTARilY WAives SUCH RIGHTS,
IN WITNess WHEReOF, Landlord and Tenant have executed this Lease as of the date first hereinabove written,
LANDLORD:
LIMITeD PARTNeRSHIP
BY:
TeNANT:
Wltn...:
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September 13, 2005 \ DiDIo/CD
EXHIBIT "B"
GUARANTEE OF I ~.6."E
DELETED.
33
EXHIBIT "C"
COMPLETION CERTIFICATE
DATED AS OF
PART I
SHOPPING CENTER LEASE (the "Lase.") dated as of
Parties:
PR CAPITAL CITY LIMITED PARTNERSHIP
("L.ndlord")
("T"".nl")
SHAHRZAD (SHERRy) M LIAGHAT
Premises:
TAnant StorA No'
K-12
GLA of Premises:
192 8CIuare feet
Actual Opening Date:
Rent Commencement Date:
expiration Date:
PART II
Tanant, Intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and agrees with
Landlord 8S follows:
A, the dates end othar Information set forth In this Completion Certificate ere true and correct; and,
B, the Rent Term commences on tha Rant Commancement Date set forth In PART I hereof and ends
absolutety and without notice at 11:59 P.M. (local time) on the Expiration Date. unless sooner terminated as provided in
this Lease or extended by written agreement of the parties: and.
C. the Leese has not been assigned, supplemented, amended or otherwise modified: the Lease represents
the entire agreement between the partie. as to the Premises and Its leasing; there are no breaches or other defaults by
Landlord under the Lease; all condl1lons of the Lease to be performed by Landlord and necessary to the enforceability of
the Lease have been satisfied: the lease is In all other regards In full force and effect; and,
0, Tenant has eccepted possession of end hes entered Into occupancy of the Premises; tha Premls.. hes
been accepted by Tenant 88 being In accordance with the terms and conditions of the Lease; no Rent has been nor will be
paid or prep8kt other than 8S provided In the Lease and there are no defenses, offsets, deductions or counterclaims
against the enforcement of tho Lease by Landlord or tho paym""t of Rant by Tenant; and,
E. the Lease Is subordinate to the REA and to any and all mortgages on or deeds of trust as to the Shopping
Center subject to the non-dlsMbance provision of SaC1lon 18,02 of the Lease,
PART III
In eddl1lon 10 the fonIgolng certIflcatlons. Tenant has delivered to Landlord all of the following documents relating
to wort< thel has been performed by, through or under Tenant In or about the Premises:
A, properly executed and acknowledged affidavits (satlofectory to Landlord) from contractors engaged by
Tanant that all work In or about the Premls.. has been fully completed In accordance with the Final P1.ns approved by
Landlord and that each of Tenant's contractors, as well as all subcontractors, laborers and matenalmen, hes been paid In
full; and
B. properly executed and acknowledged releales of mechanics', materialmen's and laborers' liens
(satisfactory to Landlord) with I'8llpect to tho Praml..s from aach of Tenanf! contractors and from evary subcontractor
and materialman; and
c. a set of approved "81-bullt" drawings and specifications for the work done by Tenant In and about the
Premises, prepared, signed and sealed by Tanant's archnact, together with a com plate set of Tenant's "as,bullt" sprinkler
and other fire protection drawings and specifications prepared, signed and sealed by Tenant's architect or engineer; and
D. true and complete copies of certificates of occupancy and licenses from governmental bodies having
jurisdiction over Tenant's use or occupancy of any part of the Premises; and
E. a detailed cost bre~k-down sheet satisfactory to Landlord specifying the line items and cost of each line
item of the work done by, through or under Tenant In and about the Premises; and,
F. electrical underwrl1ers certificate from an organization satisfactory to Landlord,
ItallaJ.....lors-CapltaIClly-Klosk-Fln.~Fln.1
S.ptember 13, 2005 \ DIDloIeD 34
',- , ~.
All t.rm. defined In .nyother part of the L.... .r. u.ed herein a. d.fined therein.
Thl. COMPLETION CERTIFICATE has been .xecut.d a. of the date first above writt.n.
TENANT'
Wltn...:
SHAHRZAD(SHERRY)M,~T
..
ItallaJewel8...copIlsICIty4OoM-FlnoI-Flnol
S.pWmber 13, 2005 \ OIDIoICD
35
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FIRST AMENDMENT OF LEASE
THIS FIRST AMENDMENT OF LEASE (the "First Amendment"), made this
~ay of Prr.,i L, 2006, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP ("Landlord") and SHAHRZAD (SHERRY) M, LIAGHAT tla ITALlA
JEWELERS ("Tenant").
WIT N E SSE T H:
WHEREAS, by a lease dated November 1, 2005 (the "Lease"), Landlord
leased to Tenant all those certain premises owned by Landlord situate in the Capnal cny
Mall, Camp Hili, PA known and designated as Store Number K-12 (the "Premises"), for a
term of years upon certain terms and condnions as more fully set forth in the Lease; and
WHEREAS, Landlord and Tenant desire to modify the provisions of the
Lease upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, In consideration of the mutual promises herein
contained, the parties hereto, intending to be legally bound hereby, covenant and agree as
follows:
1 . Tenant's notice address reflected on page two of the Lease is deleted
in ns entirety and the following address is substituted in lieu thereof:
2810 Falrvlew Road
Camp Hili, PA 17011
2. The following paragraph which is the second paragraph 01
Fundamental Lease Provision 0) is hereby deleted In ns entirety:
Tenant hereby acknowledges and agrees that, nolWnhstanding anything to
the contrary sel forth elsewhere in this Lease, for purposes of computing any Addlllonal
Rent hereunder which is calculated by using the GLA Fraction, the numerator of the GLA
Fraction shall include the total square footage of a two foot (2') wide queuing area along
the entire length of the open side( s) of the Premises, Therefore, in order to determine any
Addllional Rent hereunder which calculated upon a per-square-foot basis as aforesaid, the
GLA of the Premises shall be deemed to be three hundred twenty (320) square feet in lieu
ofthe actual GLA ofthe Premises as set forth in the Fundamental Lease Provisions. Such
queuing area (which contains one hundred twenty-elght (128) square feet of floor area) is
included for purposes of calculating Addllional Rent under this Lease as set forth
hereinabove, but only for such purpose, and such queuing area shall not, In any manner
whatsoever, be deemed hereunder to be a part of the Premises. Further, in no event shall
Tenants kiosk encroach Into or upon said queuing area.
italiaJewefttra-CapttatCtty-Amd-C
March 10, 2006 \ DiDIo/CD 1
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3. Except as herein provided to the contrary, all ofthe terms, covenants,
condnions and stipulations contained in the Lease, including the confession of judgment
contained therein and all other terms whether or not deemed personal covenants, shall be
continued wnh like effect and to all legal intents and purposes as if Included in a new lease
containing identicel terms, covenants, conditions and stipulations as in the Lease except as
herein modified, until the time of expiration of the term, and the same is hereby ratified and
confirmed.
4. This First Amendment shall be binding upon and Inure to the benefn of
the parties hereto and their respective heirs, SUcceSSOIll, administrators, successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed on the day and year first above written.
LANDLORD:
PREIT SERVICES, LLC,
Agent for PR CAPITAL CITY LIMITED
P
BY:
TENANT:
Witness:
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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.
SHAHRZAD (SHERRY) M, LIAGHAT tla
IT ALIA JEWELERS,
Defendant.
CIVIL DIVISION
No,D(. -S'6F>{ Ciot{T~
VERIFICA nON 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, l.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
\ .
Shshrzod (Sheny) M. Uaghat tla [talia Jewelers
VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 Pa. C,S. ~ 4904 relating
to unsworn falsification to authorities, that the party against whom Judgment is to be entered
according to the Complaint attached is not an active member 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 party is
engaged in military or non-military service, as defined 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 information is true and correct to the best of the undersigned's
knowledge and belief and upon information received from others,
Date:
rjd:3/tJ(P
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Donald L. Smith, General Manager
Capital City Mall
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IN THE COURT 01" COMMON PLEAS
OF ClJMBERLANn COUNTY, PENNSYLVANIA
)
PR CAPITAL ClIY LIMITED PARTNERSHIP, )
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Plaintiff,
v.
SHAHRZAD (SHERRY) M. LIAGHAT t/a
ITALlA JEWELERS,
Defendant.
CIVIL ACTION - LAW
No. 06-5081
AFFIDAVIT OF SERVICE OF'
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION
THEREON, NOTICE OF
DEFENDANT'S RIGHTS
Filed on Behalf of the Plaintiff,
PR Capital CIty Limited Partnership
Counsel of Record for this Party:
Stephen S. Zuhrow
PAID No. 43523
Moira Cam-Mannix
Pa. LD. No. 81131
\
)
)
)
)
)
)
)
MARCUS & StIAPIRA, LLP
Firm No,145
One Oxford Centn:, 35th Floor
',01 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
'"
IN THE COURT OF COMMONPLIi:AS
OF' CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
Plaintiff:
No. 06-5081
v.
SHAHRZAD (SHERRY) M. LIAGHAT Va
IT ALIA JEWELERS,
Defendant.
AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JlJDGMENT
ANI> EXECUTION TJIEREON_LNQ].'1C'E Of.I!EFE1~{!>-~T.'S IDGIJ.T~t
I, Moira Cain-Mannix, being duly swom according to Jaw,herebycertif) that:
L I served upon Shahrzad (Sherry) M. Liaghat t:a Halia Jewelers, Detend:mt in th(:.
within action, an original Notice Under Rule 2958,] of Judgment aud. Execution Thcnxm, Notice
of Defendant's Right~ by United States Certified Mail, Return Receipt Requested on the 13th
day of September, 2006, A true and correct copy of said Notice is attached hereto as Exhiblt A;
and
2. Attached hereto as Exhibit B is the original certified return receipt issued by the
United States Post Office, providing proof of service of the Notice Under Rule 2958.1 of
Judgment and Execution Thereon, Notice of Defendant's Rights on September 13,2006.
~
.~
- --- --.....
Moira Cain-Mannix .
MARCUS & SHAPIRA LLP
35th 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:
..,..,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SHAHRZAD (SHERRY) M. LIAGHAT t/a
IT ALIA JEWELERS,
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
Plaintiff,
No. 06-5081
v,
Defendant.
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: SHAHRZAD (SHERRY) M. LIAGHAT tJa ITALIA JEWELERS
A judgment in the amount of$61,290.85 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 T AK.E 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 it 2006
~~~:}n~
Stephen S. Zubrow
Pa, LD. No. 43523
Moira Cain-Mannix
Pa. LD. No. 81131
MARCUS & SHAPIRA, LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Attorney for Plaintiffs, PR Capital City
Limited Partnership
. 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 mallplece,
or on the front if space permits.
1. Article Addressed to:
o h<l Y\YZ-Cld '~. L~o.~ \-
0'00 :L-D\lQ JE\)j-,<-\e\(.5
Z- <6 ,a t=o3{\J~Q uJ ~Go-d
~<1ro~ \\\ \ \ \ ~ 'A \ 1 <J t \
2, ArtIcle Number
(T,."".,./h:lm --*>> libel)
,PS Fonn 3811. FebnJ8ry 2004
3~ ~Mall 0 Express Mall
~ ;;;;sterect 0 Retum Receipt for Merchandise
o Insured Mall 0 C.O.D.
4. Restricted Dellvel'y? (CxtnI Fee) 0 Yes
.
J:lorMBIIc ReUn ReceIpt '02585-02*'540
7DDb D1DD DDDD bbb3 Db49
Exhibit B
CE.Rl':"U:((;~IE. .Q.F~_E.RVICE
The undersigned hereby certifies that a true and correct copy ofthe foregoing Affidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights was served upon the following by United States mail, first class service,
postage prepaid, this ~day of September, 2006:
Shahrzad M. Liaghat
d/b/a Italia Jewelers
2810 Fairview Road
Camp Hill, P A 17011
~~~
oira Cain-Mannix
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