HomeMy WebLinkAbout06-5090
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC. , )
)
Defendant. )
)
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)
CIVIL DIVISION
No. 6i- -~cltO C;O~t&...,.",
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 from 2/1/06 through 8/1/06
$ 5,950.96
$ 297.54
Attorneys' fees for enforcement and collection (5%)
provided under ~16.02 of the Lease
Filing Fee
$ 19.50
$ 6,268.00
TOTAL
Dated: August~ 2006
t?hA~~' - tk~ 'r-
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Attorney for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
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Plaintiff, )
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v. )
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Y J CAMP HILL FOODS, INC. )
)
Defendant. )
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CIVIL DIVISION
No. Dl- -Scf1D ev..LT~
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
PAIDNo.81131
MARCUS & SHAPIRA LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
Defendant. )
)
)
)
CIVIL DIVISION
No. 0(,,- ~6'iO e,Oa~
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
1. Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limited
partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, Third Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the Capital City
Mall in Camp Hill, Pennsylvania.
2. Defendant Y J Camp Hill Foods, Inc. is a Pennsylvania corporation. Defendant's
last known address is c/o FZ Management Co., 94-08 68th Avenue, Forest Hills, NY 11375.
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 September 7, 2005 (the
"Lease"). Defendant is the Tenant under the Lease, and as noted above, Plaintiff is the Landlord
under the Lease. This confession for money judgment is warranted by Section 16.02 (b) of the
Lease.
4. Plaintiff avers that judgment on the Lease is not being entered by confession
against a natural person in connection with a consumer credit transaction. The underlying Lease
of real property at Capital City Mall, Camp Hill, Pennsylvania, was made as a commercial
transaction.
5. Judgment has not been entered on the Lease in this or any other jurisdiction.
6. Section 16.01(a) of the 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 installrnent 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 rnake 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, June 21,2006, 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.
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)
$ 5,950.96
Attorneys' fees for enforcement and collection (5%)
provided under ~16.02 of the Lease
$ 297.54
Filing Fee
$ 19.50
TOTAL
$ 6,268.00
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendant in the total sum of $6,268.00 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 14-, 2006
~~-~
Stephen S. Zubrow '
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
Y J Camp Hill Foods, Inc.
UNSWORN VERIFICATION UNDER 18 PA. C.S.l\ 4904
The undersigned hereby states subject to the penalties of 18 Pa. C.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 CAPIT CITY LIMITED PARTNERSHIP
Dated: A ,~4 '2.'0 ,2006
By:
I an
ounsel and Executive Vice President
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
Defendant. )
)
)
)
CIVIL DIVISION
No. Dl- -
e;otr~
NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY
TO: Y J CAMP HILL FOODS, INC.
Please take notice that a judgment for money in the amount of$6,268.00 has been
entered against you by confession on the date below in favor of the Plaintiff.
Date: ChI,? .:?r)1 ~o6tD
Common
County
YummyJapan-CapJtaICny..Flnal
August 24, 2005 MostlJTF
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LEASE AGREEMENT
BY AND BETWEEN
PR CAPITAL CITY LIMITED PARTNERSHIP, .. Landlord
and
YJ CAMP HILL FOODS,INC.,.. Tenant
TRADE NAME: YUMMY JAPAN
EXHIBIT 1
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FUNDAMENTAL LEASE PROVISIONS
This Lease is executed and made as of Se~ ~ (' 7, 2005, by and between PR CAPITAL CITY UMITED
PARTNERSHIP, a Pannaylvanla limited partne..hlp (herein called "Landlord") and YJ CAMP HILL FOODS, INC., a
New York corporation (herein called "Tenantlt), Landlord and Tenant having the following notice addresses:
Landlord:
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
clo PREIT Services, LLC
200 South Broad Street
The Bellevue, Third Floor
Philadelphia, PA \9\02
Attn: General Counsel
PR CAPITAL CITY LIMITED PARTNERSHIP
Management Office
3506 Capitai City Mall Drive
Camp Hill, PA 17011
Attn: General Manager
Tenant:
Copy to:
Y J Camp H", Foods, Inc.
FZ ManalLement Co,
94-08 68 Avenue
Forest HUls, NY 11375
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 etsewnere In this Lease:
(a)
(b)
Tenant'. Trade Name:
Yummy Japan
(See See. 7.01)
Rent Term: One Hundred Twenty (120) months commencing on the Rent Commencement Date. The Rent
Term expires on the last day of the One Hundred TlNentieth (120'ln) month following the Rent Commencement
Date (the "Expiration Date"). (See Sec. 3.01)
(c)
(d)
(el
(f)
Ten8nt Store Number:
FC3
(See Exh, A)
(See See, 1,04)
(See See. 2,03)
(See Sec. 2.03)
(See Sec. 2.03)
GLA of Praml...:
428 square feet
Oulgn DrawlnllS Submlulon Date: August 30, 2005
Tenant'. "ConatrucUon Commencemel'\t Date":
& .Conatructlon PerIod.: Sixty (60) days
(g) Minimum Rant:
OcIober \, 2005
Time Period
AnnulIl Amount
Monthlv Amount
Rent Commencement Date
through the 48th month
From the 49th month
through the end of the Term
(h) Percentoge Rent:
$49,998.96
$4,166,58
$54,998,00
$4,583.17
(See See. 4.03)
Tim. Period
Rent Commencement Date
through the 48th month
From the 49th month
through the end of the Term
Break Point
The "Pereen~"
$624,987.00
Eight Percent (8%)
$687,475.00
Eight Percent (8%)
(See See. 4.04)
(See See. 4.02)
(See Sec. 2.02)
(i)
0)
Raqul.-d Opening Data:
December " 2005
Security Dapoall:
$6,000.00
(k) Marketing Service Ch8rge: $1.50 per square foot of the GLA of the Premises per Year (See Sec. 9.01)
Minimum Advertlalng Charge: $\.50 per square foot of the GLA of the Premises par Year (See See. 9,02)
(I) Certain Olhar Chal'l/N Payable by Tanant:
T""Charga
Sarvlcaa Chal'l/u
Refuaa Handling Chal'l/e
CAM Charga
Spacial Aaa_mant
(See Sec. 5.01)
(See Sec. 6.01)
(See See. 6,03)
(See See. 8.03)
(See Sec, 9.01)
YummyJapalrCapltalClty...f'lnal
August 24,2005 \ Most/JTF
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FUNDAMENTAL LEASE PROVISIONS (CONT'D)
(m) "Agant" and To Whom Rant Payabla:
PR Capital City Associates LP
P.O. Box 644052
Pittsburgh, PA 15264-4052
(n) Ua.: For the sole purpose of the sale of those iiams listed on the manu attached hereto as Exhibit D. Any
changes to Tananrs menu must be ~ by Landlord In writing.
(See Sac. 7.01)
YummyJapa","CapItaICIty~Final
August 24, 2005 \ MostlJTF
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LEASE AGREEMENT
ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1.01: REFERENCES AND CONFLICTS.
References appearing in the Fundamental Lease Provisions are to designate some of the other places in this
Lease where addttional provisions applicable to the particular Fundamental Lease Provisions appear, Each reference in
this Lease to any of the Fundamental Lease Provisions shall be construed to incorporate all of the terms provided for
under such provisions. and such provision shall be read in conjunctiOn with all other provisions of this Lease applicable
thereto. If there is any conflict between any of the fundamental Lease Provisions and any other provisions of this Lease,
the latter shall control. The listing on the Fundamental Lease Provisions of monetary charges payable by Tenant shall not
be construed to be an exhausttve list of aU charges or the amount thereof ?aya~ by T ensol under this Lease.
Sacllon 1.02: GENERAL DEFINITIONS.
(a) The term "Shopping Cent.r" means the land shown on ExhIbit "A" attached hereto and by this
reference incorporated herein, as the same may hereafter be reduced, expanded or otherwise altered from time to time.
(b) The term "Malt Pram""" means the Shopping Center excluding however the Majors' Premises and the
term "Mall Premi..... includes the same as reduced. expanded or otnerwise altered from time to time.
(c) The term "Landlord'. Building" means the buildings, structures and other Improvements shown in
general on Exhibit "'A" and includes the "EnclOHd MaU" (hereinafter defined), but excludes the Majors' Premises
(hereinafter defined). Landlord's Building is part of the Mall Premises. The term "Landlord'. Building" Includes the same
as reduced. expanded or otherwise altered from time to time.
(d) The term "Majo..' Praml..." (or "Majo.. Premia..") means the premises shown on Exhibit "A", page 1
by such term, or by the word "Major" or name of the prospectlve or actual principal occupant thereof (the "Majors" or a
"Major"), and the term "Majo..' Premia.." (or "Majo.. Premia..") includes the same as reduced. expanded or otherwise
altered from time to time. The term "Major" (or "Majors") includes any replacement for or other substitute of the primary
occupant of a Majors Premises as well as, in the case of an expansion of the Shopping Center, the primary occupant of
the premises equal to or exceeding, in term. of GLA, the GLA of anyone (1) of the Majors' Premises shown on Exhibit
"A" (even though those premises may not be originally shown thereon). Raferences in thl. Lease to a Major or Majors
shall include any such replacement, substitute or additional Major and its premises are Included within the terms "Majors'
Premia.." and "Major's preml...".
(e) The term "Common Areas" means all areas, facilities and Improvements operated or provided at Of in
connection with the Shopping Center from Ume to time for the non..exclusfve common use of Landlord, the tenants of the
Mall Premises and the Majors, and shall Include but not be limited to the "Encl_ Mall" (hereinafter defined), parking
areas, roadways, ramps, traffic controls, truck ways. loading and unloading docks, delivery areas, sidewalks, stairways,
escalators and elevators (If any), service corridors, exit corridors, seating areas, buffer areas, screening facilities.
merchandise ptckup 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 "Enclosed Mall" means the enclosed climate controlled pedestrian mall located in Landlord's
Building, and the term "Enclosed Mall" includes the same as. reduced, expanded or otherw\se altered from time to time.
(g) The term "Premises" means the space demised by this Lease and situated In Landlord's Building which
space is in the approximate location marked on Exhibit "A", however, the Premises is limited vertically to the c:eiling
height abcve the structural floor sat forth In Landlord's "Store llealgn Crttarta" (defined in Section 2.03(b) hereof). In tha
event the Premises is a comer location, the Premises shall exclude any rights WIth respect to the exterior side wall of the
Premises.
(h) The term "Fast Food Cluster" 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 areas located therein and the maintenance and housekeeping
areas primarily serving the Fast Food Cluster. The term "Fast Food Cluster" inc!udes the same as reduced, expanded or
otherwise altered from time to time.
(i) The term "GLA" means with respect to the Premis&& 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 wlthout 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 measured from the exterior face of exterior walls and the exterior face of
service corridor wal\S, \he line along the front of the Premises where the Premises abuts the Enclosed Mali as shown on
Exhibit A (which line is commonly known as the ilL... Line"), 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 waU Tenant shares with other tenants or occupants of the Landlord's
Building or a Majors' Premises. With respect to all leasable areas other than the Premises, GLA shall be determined by
virtue of the definition contained in the lease In question. No deduction from GLA shall be made for columns, stairs,
elevators, or any Interior 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 or other alterations of landlord's Building or as such GLA may be adjusted pursuant to provisions
in the leaselS of other tenants or occupants. The GLA of the Premises and of Landlord's BuUding shall be utili%ed to
calculate the GLA Fraction (defined in Section 1.02(j) and to make any other calculations required. to determtne the
YummyJapan..capftalClty.Flnal
August 24, 2005 \ Most/JTF 4
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:charQe5'to Tenant.
0) The term "GLA Fraction" means a fraction, the numerator of which shall be the GLA of the Premises and
the denominator of which shall be the occupied GLA of Landlord's Building, subject, however, to the provisions of SecIIon
4.08,
(k) The term" Junior Major(a} Pramla.." means eIIher of the following, (not herein identified as or otherwlse
hereunder constituting a "Mtljor"): (I) any so called "out parcel" or any premises that does not have direct customer store
frontage and/or customer entry to the EnclostKI 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 "Leaee") shall mean the Fundamental Lease Provisions.
the lease Agreement. the Exhlb~S' attached hereto and Addendum, if any.
Section 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 B
EXHIBIT C
EXHIBIT D
EXHIBIT E
Plan of the Shopping Center as presently constituted which plan also shows the approximate location of
the Premises,
Deleted,
EXHIBIT A
Completion Certificate.
Tenant's Menu.
Fast Food Cluster T enBnt Exhibit.
SllCIlon 1.04: TENANT'S STOREFRONT.
Tenant may, subject to receipt of all required governmental approvals and Landlord's prior written approval, "pop-
out" all or a portion of the storefront. Should Tenant Install a pop-out storefront, the GLA of the Premises shall be
increased to Include the square foot area of the pO~t(s), The Minimum Rent and the Break Pelnt aha<< be accordingiy
increased, to include the area of such pop--out(s).
SllCIlon 1.05: CHANGES TO SHOPPING CENTER.
As between Landlord and T ensnt, Landlord may at any time and from time to time ellminate 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 part thereof, including, without limitation adding additional levels to any existing buildings therein.
In exercising its rights hereunder, Landlord agrees to use reasonable efforts not to materially adversely affect
access to, or visibility of, the Premises,
Secllon 1.06: CROSS EASEMENT AGREEMENT.
T anant understands and agrees with Landlord that, notwithstanding anything to the contrary contained in this
Lease, the Shopping Center Including. without limitation, the Common mas and the Premises are and shall be subject,
subordinate and otherwise junior to any cross easement agreement (as they may be or may have been created, amended,
supplemented or otherwise modified from time to time) between Landlord and each occupant of the Majors or Junior
Majors who are part"'" thereto (such eros> easement agreement being herein collectivaty called the 'REA").
ARTICLE 2: PREMISES AND TENANTS WORK
Section 2.01: LEASE OF PREMISES.
Landlord, in consideration of the "RentR (defined In Section 4.01) to be paid and the covenants to be performed by
Tenant, does hereby demise and lease unto Tenant, and Tenant hereby leases and takes from Landlord, for the Term, at
the rental, and upon the CO'Jenanta, condJUons 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.
SllCIlon 2.02: SECURITY DEPOSIT.
The sum referred to as the security deposit in the Fundamental Lease Provisions is herein called the "Scurlty
o.poalt". The Security Deposit will be held by Landlord, without Interest 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 >hall return the Security Depos~ to Tenant at the expiration of the Term. In no
instance shall the amount of the Security Deposit be considered a measure of liquidated Of other damages. All or any part
of the Security Deposit may be applied by Landlord In total or partial cure by Landlord of any breach or other default of
Tenant. The application of 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 appUcation by Landlord
constitute a waiver or assumption by Landiord. Wall or any part of the Security Deposit Is applied by Landlord to an
obligation or default of Tenant hereunde<. Landlor<lshall have the righllo call upon Tenant \0 restore lt1e Security Depcsit
to its original amount by giving nollce to Tenant and Tenant shall Immediately restore the Security Depcs~ to its original
amount by payment thereof to Landlord. Tenant shall not have the right to call upcn Landlord \0 apply all or any part of the
YummyJapan~CapItaICltv..flnal
August 24, 2005 \ M08t1JTF 5
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'Security Deposit to cure any breach Or' other default or to fulfill any obligation of Tenant but such use shall be s~ely in the
discretion of Landlord. It Is distinctly undenltood and agreed tha.t should Landlord transfer Its Interest In this Lease, the
Security Deposit may be turned over by Landlord to Landlord', grahtee or other transferee, and upon any such turnover of
the Security Deposit, Tenant hereby releases Landiord herein named of any and allllebUity or other obligation with respect
to the Security Depcsft, its application and retum, and Tenant agrees to 1001< solely to such grantee or other transferee. It
is further understood and agreed that these provisions shall also apply to subsequent grantees and other transferees. The
Security Depcslt shall be deemed tha sole property of Landlord.
Sactlon 2.03: PREPARATION OF PLANS AND TENANT'S 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 tums 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 Premises or what items, If any, the present occupant of the Premlses 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
be liable in the event the existing occupant of the Premises faHs to timely vacate the same, except that any delay in
occupancy shall extend the Required Opening Date specified herein for a period equal to the number of days between the
Construction Commencement Date specified herein and the date such former tenant vacates; provided that tf physical
possession of the Premises Is not available by a date which is one year from the ConstnJctlon Commencement Date, at
Landlord's option, this Lease shall be null and void and neither party shall have any liability hereunder to the other.
Prior to delivering possession of the Premises to Tenant, Landlord shall perform the following work in the
Premises (hereinafter "l..andlord's Work"):
1. Provkte and install demising wall studs only to roof deck. Oemo.Jition necessary to demise.
2. Provide conduit only from Landlord's distribution area to the Premises sized to 277/480v.
3. Provide domestic and sanitary line stub-ins to the Premises.
4. Pull telephone conduit to the Premises.
5. Provide and install %" stutHn from propane line at location designated by Landlord.
6, Provide and install sprinkler system to include main lateral grid and sprinkler heads (up).
(b) Tenant shall perform all work required to be perfonmed by Tenant to fully and completely remodel the
Premises and to adapt the same for Tenant's use, as such use is specified and limited by the Fundamental Lease
Provisions, all such work being referred to herein as "Ten.nr. Work". Tenant shall design the Premises in accordance
with Landlord's current store and storefront design criteria booklet and otherwise comply with all Insurance and other
requirements therein (herein called "Store DMlgn Crltert."), a copy of which Tenant ackl'lO'Nfedges It has received.
Tenant shall Instruct its architect or designer to prepare Tenant's plans for the Premises in compUance with the Americans
with Disabilities Act, the Clean Air Act and aJl other applicable laws, rules, codes, and regulations. In the event of any
inconsistencies between the text of this Lease and the Store Design Criteria, the latter shall prevail. Entry by Tenant to the
Premises prior to the Rent Commencement Date shall be subject to all of the provisions of this Lease, except the duty to
pay Rent but Tenant shall pay for all utilllles and services supplied to ~ during such period. Tenant _s to perfonm
Tenant's Work in accordance with the provisions of this Lease and such manner so as not to cause any interference with
the use, occupancy or enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shalf promptiy
cause to be repaired all items which may have been damaged as a result of the pertonnance of Tenanrs Work promptly
upon the occurrence of such damage and shall at all times keep all portions of the Shopping Center (other than the
Premises) free from and unobstructed by debris, equipment or materials related to Tenant's Work.
Tenant's Work shall be commenced on or before October 1, 2005 (the "Construction Commencement Date") and
shall be completed on or before December 1, 2005 (the "Required Opening Date"). Tenant shall include the following
work to the entire Premises:
1. Install new wall treatments and finishes.
2. Install new floor treatments and finishes.
3, Install new ceiling treatments and finishes.
4. Install new lighting systems.
6. Install new efectrical systems.
6. Install new plumbing system.
7. Install new HVAC system Including new rooftop unit.
8. Install new sprinkler and tire protection systems.
9, Install new storefront and finishes with display window(s).
10. Install new Internally illuminated storefront.
11. Install new store displays and Interior fixturing and furnishings.
(c) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(herein called the "Tananl Coordinator") for the Landtord's approval design drawings (herein called the "Deellln
Drawings") specifying each aspect of Tenanrs Work and spaclflcally including a colored rendering of the proposed
storefront and signing, sample materials to be used in the Premises and sign, photograph of fixtures to be used and the
interior layout of the Premises. The Design Drawings shall be prepared In accordance with the Store Design Criteria.
After receipt of the Design Drawings, Landlord shall return to the Tenant the Design Drawings, either "approved",
"approved as noted" or "disapproved"; jf they are marked "disapproved". Landlord shall also note the reasons of such
disapproval. On or before thirty (30) days after receipt of the "disapproved" Design Drawings, Tenant shell resubmit to the
Tenant Coordinator revised Design Drawings meeting Landlord's objections. Landlord shall thereafter retum the same to
Tenant, marked as set forth above and Tenant shatl within an additional thirty (30) day period resubmit revised drawings
until the same have been "approved as noted" or "approved". On or before thirty (30) days after receipt of "approved as
noted" or "approved" Design Drawings Tenant shall submit to the Tenant Coordinator for Landlord's approval, working
drawings and specificallons (harein called "Final Plana") for archltecturel, electrical, mechenlcal, sprinkler and plumbing
work within the Premises and all other Tenant Work propcsed by Tenant and shown on the Design Drawings end required
by the Store Design Criteria. The Final Plans shall be prepared in accordance with the Design DrawIngs as marked
"approved as noted" or "approved" by Landlord. The Final Ptans shall incorporate any reviskNls required by Landlord to
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lhe Design Drawings, including those jarmlng the basis of Landlord's approving the ~ame "as noted". After receipt of the
Final Plans, Landlord shall return to Tenant the FlnaJ Plans, marked either "approved", "approved as noted" or
"disapproved". If they are marked "disapproved", Landlord shall state the reasons for such disapproval and Tenant shall,
on or before ten (10) days altar receipt of such "disapproved" Final Plans, correct any deficiencies stated by Landlord and
resubm~ within ten (10) days corrected Final Plans to Landlord until same are accepted as "approved as noted" or
"approved", If landtord accepts Tenant's Final Plans "approved as noted", Tenant need not resubm;t 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 fsshton as 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 failure shall constitute an Event of Defauij. Tenanrs Work
shall be performed 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 Tensnrs failure to
commence Tenanfs 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 submitted 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 Five Hundred and 00/100 Dollars ($500.00) to defray the cost of reviewing Tenant's Design
Drawings and Final Plans.
(e) On or before the Construction Commencement Date, Tenant shall deposit with Landlord certificates of
insurance as required In ArtIcle 11 and the Store Design Criteria, as well as a true copy of Tenant's building permit and
Tenant shall commence Tenant's Work and prosecute It diligenUy and continuously to completion including installation of
fixtures 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 Waiver of Liens") from
each Contractor In the form specified by Landlord. The Contractor's Waiver of Liens provides, among other things, that
the Contractor waives any and all lien rights that It may have against Landlord's estate, right, title and Interest in the
Shopping Center and any part thereof Including, without limitation, Landlord's Bu~dlng and the Mall Premises. Wtthin sixty
(60) days after Tenanrs opening the Premises for business, Tenant shall deliver to Landlord an executed Completion
Certificate in the form attached hereto as Exhibit "C".
(f) Landlord shall have the right to post and keep posted in the Premises notices of non-responsibility, or
such other notices as Landlord may deem to be proper for the protection of the Landlord or Landlord's estate, right. title
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 notice of Its intention to commence said work in
sufficient time to enable Landlord to post, file and record such notices. The provisions of this Section 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.
Sactlon 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 Fundamental Lease Provisions.
(b) Tenant shall complete, or cause to be comp'eted, Tenant's Work and the installation of fixtures,
equipment and merchandise 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, Tenant shall pay to Landk>rd, in addition to Minimum Rent and
Additional Rent. an amount equal to One Hundred and 00/100 ($100,00) DoUars for each day Tenanrs business remains
not open in the Premises from and after the Required Opening Date (counting the saki Required Opening Date as the first
such day). Any and all sums and other charges payable by Tenant to Landlord pursuant to the immediately preceding
sentence shall be paid on demand to offset administrative costs and expenses Incurred by Landlord as a resutt of Tenant's
late opening and shall In no way abrogate, or relieve Tenant from any of Tenant's obligations under this Lease, including
without limitation the obUgation to open Its business in the Premises, and Landlord shall have all other rights and remedtss
under this Lease, at law and in equity, arising from Tenant's failure to open pursuant to Jhls Section 2.04(b).
Sactlon 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 suppUes furnished by any contractor, subcontractor, mechanic, laborer or
materialman or any mortgage, conditional sale, security agreement or chattel mortgage which might be or become a lien
or encumbrance or other charge (collectively a "Charve") against or upon the Shopping Center or any part thereof,
including without limitation the Mall Premises and Landlord's Building or the Income therefrom. Tenant will not suffer any
other matter or thing whereby the estate, right, tltie and interest of Landlord In the Shopping Canter or any part thereof
including without limitation the Mall Premises and Landlord's Buiiding might be Impaired. W 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 filed against or upon the Shopping Center or any part thereof
including without limitation, 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 cause such claim or lien or notice of claim or 'fen or other Charge to be
discharged within the period aforesaid, then, In addition to any other right or remedy it may have, Landlord may, but shall
not be obligated to, discharge the same by payment, deposit or by bonding proceedings, and in any such event Landlord
shall be entiUed, ~ Landiord so elects, to compel the prosecution of an aellon for the foreclosure of the same by the
claimant and to pay the amount of any Judgment in favor of the claimant with intelltSt, costs and a1towances. Any amount
so paid by Landlord and all Interest, costs and expenses, including attorneys' fees, Incurred by Landlord In connection
therewith, shall constitute Additional Rent payable by Tenant under this Lease and shall be paid by Tenant to Landlord on
demand. Nothing herein contained shall obligate Tenant to payor discharge any Charge created by Landlord.
(b) Tenant shall pay promptly all persons furnishing labor or materials with respect to any work by Tenant or
Tenant's contractor in or about the Premises. No work which Landlord permits Tenant to do shatl be deemed to be for the
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'immediate use and benefit of Landiord'so that no mechanics' or other claim, lien or other Charge shall be allowed against
the estate, right, title or interest of landlord by reason of any consent given by Landlord to Tenant to do work in or about
the Premises or provide materials therefor. Nothing contained herein shall imply any consent or agreement on the part of
Landlord to subject Landlord's estate to liability undar any mechanics' or other lien law.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS LEASE.
The term of this Lease (sometimes herein called the "Term") means the period of the "Interim Term" (hereafter
defined) followed immedlataly by !he period of the "Rent Tenn" (hereln_ defined). The "Intartm Tenn" means the
period commencing on the date, of this Lease and ending on the date immediately preceding the Rent Commencement
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 Landlord 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 Tenanrs obligation to pay Rent shall abate. other than
for utilities and trash charges.
Section 3,02: YEARS.
The 18nm -Vear" means each successive lwelve (12) month period from January 1 through December 31
occurring durtng the Tenm, plus. ~ applicsble any Partial Year. "Partial Y..... means the period betwaen and including the
Rent Commencement Date, ~ that date Is not Jenuary 1, and the next succeeding December 31 and. ij applicable, ~ 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
day of the Term.
ARTICLE 4: RENT
Section 4,01: TENANTS AGREEMENT TO PAY RENT.
Tenant hereby agrees to pay for the rtght of use and occupency of the Premises during the Rent Tenm, at the
times and in the manner herein provided, the Minimum Rent. Percentage Rent and Additional Rent. As used in this Lease,
the term "Rent" means, collectively, the Minimum Rent, Percentage Rent and Additional Rent.
Section 4.02: RENT COMMENCEMENT DATE.
As used in this Lease, the term "Rent Commencement Date" shall mean the earlier of:
(a>
Date"); or
the date on which Tenant Initially opens its business to the public In the Premises (the "ActU81 Opening
(b)
the calendar date set forth as the Required Opening Date In the Fundamental lease Provisk>ns.
Section 4,03: MINIMUM RENT.
(a) The base rent Tenant shall pay landlord for each Year shall be the amount set forth in the Fundamental
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 rent Tenant shall pay landlord for any Partial Year shall be that amount set forth in the
Fundamental lease Provisions as the Minimum Rent per Year times the Partial Year Fraction. As used in this lease,
"P.rtlal Year FnlCtlon" means a fraction. the numerator of whtch is the number of days In the applicable Partial Year, and
the denominator of which is three hundred sixty-five (365), The base rent payable for a Partial Year shall be paid in equal
monthly installments, in advance. on the first day of each calendar month, except that if the Rent Commencement Date is
not the first day of a calendar month. then that portion of such base rent which is attributable to the days in that first partial
calendar month shall be paid, in advance, on the Rent Commencement Date.
(c) The base rent payable by Tenant pursuant to Section 4.03(a) or (b), whichever is appiicable, is called the
"Minimum Rent" in this lease. Minimum Rent shall be prorated for partial months, if any. If the Minimum Rent increases
during the Rent Term, for the purpose of determining the date on which Minimum Rent increase(s) become effective, a
partiai month shaU be disregarded.
(d) If, at any time during the Tenn the Shopping Center shall be expanded by the addition of one or more
Majors' Premises or the Shopping Center is expanded by more than 50.000 square feet of GLA, Tenant agrees that the
Minimum Rent provided in the Fundamental Lease Provisions shall be Increased by ten percent (10%) upcn the date each
such additional Majors' Premises first opens for business or the opening of the expanded Shopping Center. landlord
agrees that the Break Point shall be likewise increased by ten percent (10%).
Section 4.04: PERCENTAGE RENT,
(a) In addition to Minimum Rent, Tenant shall pay Landlord percentaga rent (herein called "Percentage
Rent") as determined by this Article 4. The Percentage Rent for each Year shall be an amount equal to the "Percentage"
(which is set forth in the Fundamental lease Provisions) multiplied by the amount of Gross Safes made during such Year
in excess of the applicab'e Break Point set forth in the Fundamental Lease Provisions. The Percentage Rent for each
Partial Year shall be an amount equal to the Percentage multiplied by the amount of Gross Sa6es made during such Partial
Year in excess of the Partial Year Break Point. The term "P.rtlal Yea, B....k Point" shaH mean an amount equal to the
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Break Point mulUpl1ed by the Partial Year Fraction for the applicable Partial Year and the Break Point and Partial Year
Break Point are collectJvety referred to as the "B...k Point",
(b) In each Year or Partial Year, Tenant shan be obligated to pay Percentage Rent beginning with the first
month in which the aggregate amount of Gross Sales made for such Year or Partial Year exceeds the Break Point.
Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every succeeding
month during the remainder of such Year or Partial Year on all additional Gross Sales. Each payment of Percentage Rent
shall be paid by Tenant to Landlord without demand and otherwise as set forth in this Article 4 together with Tenant's
monthly statement of Gross Sales provided for In Section 4.06, subject to the annual adjustment provided for in such
Section 4.06.
(c) In the event any Break Point Is subject to adjustment during the term of this Lease, and the date on which
any such adjustment is to occur (hereafter referred to as the "Rentall Adjustment Date") is other than the first day of a
Year, the Break Point for the Year In which the Rental Adjustment Date shall fall shall be the sum of: (1) the inlUal Break
Point multiplied by a fraction the numerator of which shall be the number of days In the period commencing on the first day
of the Year in which the Rental Adjustment Date shall fall and ending on the day Immediateiy prior to the Rental
Adjustment Dale and the denominator of which shall be threa hundred sixty-fiva (365). plus (2) the lall.. Break Point
mulUplled by a fraction, the numerator of which shall be the number of days in the period commencing on the Rental
Adjustment Date and ending on the last day of the Year in which the Rental Adjustment Date shall fall and the denominator
of which shall be three hundred sixty-five (365),
Section 4.05: GROSS SALES.
(a) The term "Groee Sal.... means the total gross receipts and receivables of atl merchandise, wares and
other goods sold or leased and the actual charges for all services performed, business conducted and accommodations
rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant in, at, from, or arising out of the
use of the Premises, whether wholesale or retail, whether for cash or credit, or otherwise, and including the value of all
consideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to
collect, Including but not limited to sales, leases and services:
(i) where the orders therefor originate in, at, from or arising out of the use of the Premises, where
delivery or performance is made from the Premises regartlless of the place of bookkeeping for, payment of, or collection of
any account: or
(Ii) made or performed by mail, telephone, Internet, webslte 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 deposit accepted and retained by Tenant shall be included in Gross Sales. Each installment or credit sale
shall be treated as a sale for the full price In the month during which such sale is mede, irrespective of whether. or when
Tenant receives payment therefor. No franchise, value added tax, capital stock tax, tax based upon assets or net worth or
gross receipt tax, and no income or similar tax based on income or profits shall be deducted from Gross Sales.
(b) Only the following shall be excluded from Gross Sales:
(I) any exchange of merchandise between stores of Tenant when such exchange is made smely 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;
(Ii) returns to suppliers, shippers or manufacturers;
(Iii) cash or credit refunds to customers on transaction oth8fWise included in Gross Sales;
(iv) saies of fixtures, machinery and equipment, which are not stock for sale or trade, after use thereof
in the conduct of Tenant's business;
(v) amounts separately stated in the sales receipt and collected from customers which are paid by
Tenant to any government for any sales or excise tax Imposed by law at the point of sale.
Section 4.06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT.
(a) Tenant shall furnish 10 Landlord within twenty (20) days aft.. the end of each calendar month during the
Term a complete statement (the "Monthty Report"), certified by Tenant (or a responsible financial officer thereof ~ Tenant
is a corporation), setting forth (i) the amount of Gross Sales during such month, (II) the allll'egate amount of Gross Sales
during such Year (or Partial Year, as the case may be), including such month, (Ill) the amount, If any, by which such
aggregate amount of Gross Sales exceeds the Break Point, and (Iv) the amount of Percentage Rent previously paid by
Tenant to Landlord for such Year (or Partial Year, as the case may be). The Monthly Report shall be in such form and
style and contain such details and breakdown as Landlord may reasonably require.
(b) Tenant will also furnish to Landlord within sixty (60) days after the end of each Year a complete statement
(the "Yaarty Report") certified by the Tenant, showing in reasonable detail the amount of Gross Sales during such Year
and the amount paid to Landlord pursuant to Section 4.04(b) for such Year, The Yeariy Report shall be accompanied by
the signed opinion of the person certifying the Yearly Report speclftcally stating that such person has read the definition of
"Groa SaIH" contained In this Lease, that such person has examined the Yearly Report of Gross Sates of such Year,
that such person's examination Included such tests of Tenant's books and records as such person considered necessary
under the circumstances, and that the Yearly Report accurately represents the Gross Sales of such Year.
(e) An adjustment shall be made with the furnishing of each Yearly Report with respect to Percentage Rent as
follows: if Tenant shall have paid to Landiord an amount greater than Tenant Is required to pay as Minimum Rent and
Percentage Rent under the terms of Sections 4.03 and 4,04(a), Tenant shall receive a credtt of such excess against
payments of Minimum Rent next becoming due to Landlord; or, if Tenant shall have paid an amount less than was
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required to be so paid, then Tenant shall forthwith pay such difference.
(d) The reports required by this Section 4.06 shall be delivered to Landlord at the notices address of Landlord
or to such other person and/or to such other place as may be designated from time to time by notice from Landlord to
Tenant.
Section 4.Q7: TENANrS RECORDS & AUDITS.
(a) 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
shail keep at ail times during the Term, at the Premises or at the heme or regiOnal office of Tenant, full complete and
accurate books of account and records In accordance with generaily accepted accounting practice with respect to ail
operations of the business conducted In or from the Premises, Including the recording of Gross Sales and the receipt of all
merchandise and other goods ihto and the deilvery of all merchandise and O\ller goods from the Premises during the
Term, and shall retain such books and records, copies of all tax reports and tax returns submitted to taxing authorities, as
well as copies of contracts, vouchers, checks. inventory records and other documents and papers in any way relating to
the operation of such business for at least three (3) years from the end of the period to which they are applicable, or ~ any
sudh is required or a controversy should arise between the parties hereto regarding the Rent payable hereunder, until such
audit or controversy Is terminated even though such retention period may be after the expiration of the Term or earlier
termination of this Lease. Such books and records shall be open at all reasonabte times during the aforesaid retention
period to the inspection of Landlord or its duly authorized representatives. who shall have full and free access to such
books and records and the right to require of Tenant, its agents and employees, 8uch Information or explanation and audit
thereof and the right to require Tenant to make such books, records and other materials which Tenant is required to retain
available at the Premises for such examination and audit.
(b) The acceptance by the Landlord of payments of Per<:entage Rent shall be without prejudice to the
Landlord's examinatiOn and audit rights hereunder. Landlord may at any reasonabte time, upon twenty (20) days' prior
written notice to Tenant, cause a complete audit to be made of Tenant's entire books, records and other materials wh\ch
Tenant IS required to retain (including the books and records of any subtenant, licensee, concessionaire and other
occupant) for ali or any part of the three (3) year period immediately preceding the day of tha giving of such notice by
Landlord to Tenant. If such audit shall reveal a deficiency in any payment of Percentage Rent, Tenant sha)l forthwith pay
to Landlord the amount of the deficiency.
(c) If such audit shail disclose that (I) any of the Yearly Reports understate Gross Sales during the reporting
period of the report to the extent of two percent (2%) or more; or (Ii) Tenant has not recorded Gross Sales, or kept bOOks
of account and records. as and for the peliod required by this Section 4.07; or (iii) if Tenant shall be delinquent In delivering
to Landlord the Yeariy Report or Monthly Reports for two (2) consecutive months, or more than twice in any Year or Partlai
Year, then such understatement. failure Of dellnqueney shall be an Event of Default. In addition, in the event of such
understatement or failure, Landlord shaJl have the right to bill to Tenant the amount of any deficiency in Percentage Rent
and the reasonable cost of said audit which shall be paid by Tenant within twenty (20) days after demand which deficiency
will bear interest at the "Def8UIt Rate" (defined In Section 16.03 hereof) from and after the date it should have been paid
until paid.
(d) In the event Tenant violates the proVisions of Sections 4.06 or 4.01 or both and as a result of such
violation, Landlord, or its duly authorized representatives, is unable to conduct a proper examination andlor audit, the
parties agree that Landiord shall have been deprived of an important right under this Lease and, as a resuH thereof. wiil
suffer damages in an amount which is not readity ascertainable and thus, In such event, Landlord. In addition to and not in
lieu of any other remedies which Landlord has under this Lease, at law or in equity, shall have the right, at its option. to
collect. as liquidated damages and not as a penally, an amount &quai to ten percent (10%) of the greater of (i) Percentage
Rent reported for lhe period or periods In question, or (i1) the annuai Minimum Rent payable for the period or periods In
question. Tenant agrees to pay such liquidated damages.
Section 4.08: ADDITIONAL RENT.
In addition to Minimum Rent and Percentage Rent, Tenant shall pay, as addltionaJ rent (herein sometimes
coilectiveiy called "Additional Rant") all other amounts, sums of money or charges of whatsoever na/Ure r&qulred to be
paid by Tenant to Landlord pursuant to this Lease, whether or not the same Is designated as "Additional Rent". The
terms "Taxes", "Tax Charge", "CAM Sum" and "CAM Charge" are defined in ArtIcles 5 and 8, respectively. In computing
the Tax Charge, the CAM Charge and. any other charge to Tenant computed on the same or substantiaUy similar basis as
the Tax Charge or the CAM Charge (collectively "Other Like Chargee"), the net payments by the occupant of the Majors
and Junior Majors to Landlord toward the Taxes, the CAM Sum or the sums on which Other like Charges are based
(collectively the "OLC Suma") shall be applied respectively to reduce the Taxes, the CAM Sum and the particular OLC
Sum before apportionment and determination of the Tax Charge, CAM Charge or Other Like Charge to be paid by Tenant
and for the purposes of computing the Tax Charge, the CAM Charge and such Other Like Charge, the denominator of the
GLA Fraction shall not include the GLA of the Majors' Premises and tha Junior Majors' Premises.
Section 4.09: WHERE RENT PAYABLE AND TO WHOM; NO DEDUCTIONS,
Rent payable by Tenant under this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be
paid when due without prior demand therefor (unless such pliOr demand is expressly provided for in this Lease), shaJl be
payable without any deductions or setoffs or counterclaims whats08\ler (except for credits expressiy permitted by this
Lease) and shall be paid by Tenant to Landlord at the payment addr.ss of Landlord set forth in the Fundamentai Lease
Provisions or to such payee andlor at such other place as may be desVlated from time \0 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 wtthln seven (7) calendar days after it is due shall bear interest at the Default Rate. In the
event any installment of Minimum Rent or other sum under thiS Lease shall not be paid when due. a "LMe Ch..-ge" of flve
cents ($,05) per each dollar so overdue may be charged by Landlord, as Additional Rant, for the purpose of defraying
Landlord's administrative expenses Incident to the handling of such overdue payments. If Tenant pays any Installment of
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Rent by check and such check Is retUrned for insuflJciant funds or other reasons not the faun of Landlord, then Tenant
shaU pay Landlord, on demand. a processing fee of Fifty Dollars ($50.00) per returned check plus all applicable Late
Charges and if three (3) checks are returned for Insufficient funds or other reasons not the fault of Landlord. all
subsequent payments to Landlord by Tenant shall be In the form of either a certified or cashier's check.
ARTICLE 5: TAXES AND ASSESSMENTS
Section 5.01: TENANTS TAX CHARGE.
Tenant shall pay to Landlord In 8ach calendar year, as Additional Rent, Tensors share of all real estate and other
ad valorem taxes and other assessments, imposltlons, excises and other governmental or quasl-govemmental charges of
every kind and nature (including, but not limited to, general and special assessments. sewer ancl fire district assessments.
foreseen as well as unforeseen and ordinary as ,\Yell as extraordinary) wtth respect to the Shopping Center and all
improvements thereon or any part thereof. Such taxes and assessments are collectively called the "Tax.." in this Lease.
Tenant's share of tha Taxes in each calendar year (the 'Tax Charge") shall be an amount equal to the product obtained by
multiplying the Taxas applicable to such calendar yeer by the GLA Fraction (with daily proration for any Partial Year).
"lax.... shall also Include Landlord's reasonabte costs and expenses (Including statutory interest, If any) in obtaining or
attempting to obtain any refund, reduction or deferral of Taxes.
Sactlon 5.02: PAYMENT BY TENANT.
(a) Payment of the Tax Charge required under this Article 5 shall be paid by Tenant in equal monthly
installments in advance In such amounts as are estimated and billed by Landlord based upon the total Taxes payable in
each caJendar year. Landlord may revise its estimate and may adjust such monthfy payment at the end of any emendar
month. The first such installmant shali be due and payeble by Tenant on the Rent Commencement Date (prorated for the
remaining number of days in the calendar year) and subsequent installments shall thereafter be due and payable at the
beginning of each ensuing calendar month during the Term. In addition to the payments provkJed for in the Immediately
preceding sentence, If, prior to the Rent Commencement Date, Landlord shall have prepaid all or a portion of the Taxes
applicable to the Term, the Tax Charge shall Include and Tenant shall reimburse to landlord the Tenanrs share of such
Taxes (calculated in accordance with the provisions of Section 5.01), on or before the Rent Commencement Date.
Landlord shall send to Tenant an Invoice setting forth Tenanrs share of such Taxes, together with COpteS of receipted bills
evidencing Landlord's payment of such Taxes.
(b) After Landlord has received the Tax bills for each caiendar year, Landlord will notify Tenant of (i) the
amount of Taxes on which the Tax Charge is based, (Ii) the amount of any refund, reduction or deferral expenses, (Iii) the
total GLA of the Premises and Landlord's Building on which the Tax Charge is based and (iv) the amount of the Tax
Charge. If the aforesaid monthly payments on account of the Tax Charge for a given calendar year are greater than
Tenant's share of the Taxes payable for a given calendar year, Tenant shall receive a credit from Landlord for the excess
against installments of the Tax Charge next becoming due to Landlord, and if said payments are less than Tenant's share,
Tenant shall forthwith pay Landlord the difference.
Sactlon 5.03: TENANTS ADDITIONAL TAX OBLIGA nONS.
(a) Tenant shall pay before delinquency any and all taxes, assessments, impositions, excises, fees and other
charges levied, assessed or imposed by governmental or quasi..govemmentaJ authortty upon Tenant or its business
operation, or based upon the use or occupancy of the Premises, or upon Tenant's leasehold interest, trade fixtures,
furnishings, equipment, leasehold improvements (Including, but not limited to, those required to be made pursuant to
Tenanrs Work) alterations, changes and additions made by Tenant, merchandise and personal property of any kind
owned, installed or used by Tenant in, from or upon the Premises. If the property of Landlord.is included in any of the
foregoing items, the aforesaid taxes, assessments, Impositions, excises. fees and other charges shall nonetheless be paid
by Tenant as herein provided. Tenant shall pay, when due and payable, any sales tax, or other tax, assessment
imposition, excise or other Charge now or hereafter levied, assessed or Imposed upon or against this Lease or any Rent or
other sums paid or to be paid hereunder, or Tenanrs, Landlord's or Agenrs interest In this Lease or any Rent or other
sums paid or to be paid hereunder. Should the appropriate taxing authority require that any tax. assessment. impcsilJon,
excise or other charge referred to in this Section 5.03(a) be collected by Landlord or Agent for or on behalf of such taxing
authority, then such tax, assessmant, imposlllcn, axcise or other charge shall be paid by Tenant to Landlord or to Agent
monthly as Additional Rant in accordance with the terms of any notica from Landlord or Agent to Tanant to such effect.
The taxes, assessments, impositions, excises, fees and other charges described In this Section 5.03(a) shall be the
obligation of Tenant and not Landlord or Agent. If any tax, assessment, imposition, excise. fee or other charge covered by
this Section 5.03(a) is impcsed on Landlord or Agent, Tenant shall pay the same to Landlord within thirty (30) days after
receipt of each bill therefor.
(b) Nothing herein contained shall be construed to Include in Taxes any inheritance, estate, succession,
transfer, gift, franchise, corporation, net income or profit tax or capital levy that Is or may be imposed upon Landlord;
provided, however, that, if at any time during the Term the methods of taxation prevailing at the commencement of the
Term shall be altered so that in lieu of or as a supplement to the whole or any part of the taxes now levied, assessed or
imposed on real estate as such there shall be levied, assessed or Imposed (i) a tax on the rents received from such real
estate, or (ii) a license fee measured by the rents receivable by Landlord from the Shopping Center or any pcrtIon thereof.
or (iii) a tax or license fee Imposed upon Landlord which is otherwise measured by or based to whole or in part upon the
Shopping Center or any portion thereof, then the same shall be included in the computation of Taxes hereunder, computed
as if the amount of such tax or fee so payable were that due If the Shopping Center were the only property of landlord
subject thereto. If any gross receipts tax shall be payable by landlord, Tenant shatl pay the portion thereof attributable to
Landlord's receipts from this Lease.
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ARTICLE 6: SERVICES
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Section 6.01: UTILITIES.
(a) During the Term, Tenant shall be solely responslbkJ for and promptly pay all charges, for heat, water,
electricity, sewer 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 supply or make available any utility used or consumed at the Premises, Tenant agrees to purchase and pay for
same as Additional Rent, every month in the Term; provided that Tenant shall not be obiigated to pay to Landlord an
aggreQate annual sum therefor in excess of the aggregate annual amount therefor which Tenant would otherwise be
obligated to pay for similar utility usage and service as a retail customer of the public utDlty or municipal authority then
supplying such utility to the Shppping Center. In addition, Tenant shall also pay any taxes, surcharges, impositions,
panaltles or other additional charges applicable to the utility service being supplied, provided that such \a)(es, surcharges,
imposijions or other charges are required by law to be collected from Tanant or are paid by Landlord to Its supplier of tha
utility service in question. Landlord may, at Its opllcn, instali an Energy Management System to etllclenUy conserve utility
usage and Tenant agrees to pay monthly, the sum of Fifty and 00/100 ($50.00) Dollars as Tenanh share of the Energy
Management Systam purchase, Installation, maintanance and upgrade costs. ~ pannmed 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 dtfferent company or
companies providing utility service to the Shopping Center.
(b) In the event the Premises does not presenUy contain an efectric or other utility meter, at Landtord's
request, Tenant shall, within forty-five (45) days after receipt of such request and at Its sole cost and expanse, 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 specifying the procedures for reading such meter and the rendering of bills to Tenant for the
utility being so metered, In tha event Landlord or the iocal authcrlty, municipality, utility or other body supplies watar and/or
sewer services and ccXlects 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 is 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 with the use, consumption, 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 Iiabte or responsible for any loss, 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 supplled to the Shopping Center or Premises or If the quantity or character of the utility supplied by landlord or any
service provider is no longer available or suitable for Tenant's requirements and none of the foregoing shall constitute an
actual or constructive eviction or entitle Tenant to any abatement or diminution of Rent or relieve Tenant from any of its
obligations under this Lease. Tenant shall operate the Premises in such a manner as shall not waste energy or water or
burden or damage the utility lines therein.
(d) Landlord may, after thirty (30) days notice to Tenant, cease to furnish anyone or mora of the utility
services to the Premises, without any responsibility to Tenant, except to connect at Tenant's sole cost and expense,
Tenant's distribution faclltties therefor with another source for the utility service so discontinued.
Section 6.02: APPLICATION FOR UTILITIES.
Tenant shall make all appropriate applications to the local utility companies at such times as shall be necessary to
insure utilities being avallabte at the demised premises no later than the commencement of the term and pay all required
deposits, connection fees andlor charges for meters within the applicable time period set by the local utility company.
Section 6.03: TRASH AND GARBAGE REMOVAL.
Tenant shall be solely responslbte for trash and garbage removal from the Premises, including the placing of aU
trash and garbage in containers provided by landlord for such purpose. In the event Landlord elects to furnish such
service to the tanants in Landlord's Building, Tanant agrees to use only the service provided by landlord and to pay for
such service (including, without limitation, beth the cost of Iaasing contalnars and tha cost of removal) monthly, as
Additional Rent, In accordance wijh a schedule of charges to be established by Landiord (the "Refuaa Handling C"-"),
In no event shall Tanant be obligated to pay Landlord more for the Refuse Handling Charge than the prevailing compatltive
rates of reputable independent trash removai contractors for service similar to that provided by Landlord. Tenant shall not
dispose of any hazardous materials or environmentally sensitive or restrlcted item of waste in any trash facilities provided
by Landlord, and In lieu thereof, Tenant shall arrange, at rts sole cost and expense, to have all such Items removed from
the Premises and Shopping Center in accordance with all Governmental Requirements (hereinafter defined).
ARTICLE 7: USE OF PREMISES
Section 7.01: SOLE USE AND TRADE NAME.
Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously use and operate ail of the
Premises for the use set forth In the Fundamental Lease Provisions and under Tensnrs Trade Name set forth therein.
Tenant shall not use or permit the Premises to be used for any other purpose or under any other trade name without the
prior written consent of Landlord. Tenant agrees that If Tenant or anyone efse clatming 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 governmental
licenses and panmijs, Including. without Iimitallcn, sign panmits, required for tha conduct of business In or from the
Premises and shall, at aJi times, comply with tha requlrementB of each Buch ilcense and panmij, Landlord does not
represent or warrant that it will obtain for Tenant (or that Tenant will be able to obtain) any ltcense or permit.
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Sectlon'7.02: HOURS.
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Tenant covenants and agrees that throughout the Rent Term, Tenant shall continuously operate. conduct Its
business within and otherwise use the Premises in accordance with the terms and conditions of this Lease, Including,
without limitation, the provisions of Section 7.01 hereof and all of the other provisions of this Article 7 (unless the Premises
are rendered unfit for occupancy by reason of fire or other casualty, in which event Article 12 shall control). Tenant will
keep the Premises open for business to the public at least: (a) every Monday through Saturday from 10:00 a.m. until 9:30
p,m,; and (b) also on Sunday from 11:00 a.m. until 7:00 p,m. (unless prohibited by jurisdicllonal authorities) as required by
Landlord. In addition to any other right or remedy, the Break Point shall be reduced, at Landlord's option. on a per dlflm
basis for each violation of the foregoing and Tenant shall pay to Landlord the Percentage Rent so computed by Landlord.
The per diem reduction shall be the amount of the applicable Break Point divided by 365 for each violation. Tenant ag~s
that landlord may change the foregoing business hours from time to time to reflect local custom or seasonal shopping
patterns provided that such changes are uniformly apptled to the majority of retail tenants In Landlord's Building. Tenant
shall not be required to keep the Premises open during hours when the Enclosed Mall is closed to the public. The
requirements of this Section 7.02 are subject, with respect to any business controlled by governmental regulations in its
hours of operation, to the hours or operation so prescribed by such govemmental regulations and are further subject to
applicable federal, state, and local environmental and other laws, rules, or regulations, guidelines, judgments or orders,
Section 7.03: OPERATIONAL REQUIREMENTS.
Tenant agrees that It:
(a) 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; provtded, however, that this
provision shall not restrtct 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 loudspeakers, phonographs, radios or televisions, or of any muslcaJ Instrument in such manner that the sounds
so reproduced, transmitted or produced shaU be audible beyond the interior of the Premises; will not dlsbibute, or cause to
be disbibuted. at the Shopping Center or in any part thereof any handbUls or other advertising or notices; and will not
conduct or permit any activities that might constitute a nuisance, or which are prurient or otherwise not generally
considared appropriate in accordance wtth standards of operallon for the Shopping Center established by Landlord; 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 apparatus free of vibration and noise which may be transmitted beyond the
confines 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 permit the loading 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 complete 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, fixturing, decor or other appearance of the interior or exterior of the Premises, without first obtaining Landlord's
written approval of such painting, decoration or change; and will remove promptly upon order of landlord any paint,
decoration or change which has been applied to or installed upon the exterior or Interior of the Premises without Landlord's
written approval;
(f) will keep the inside and outside of all glass in the doors and windows of the Premises clean and 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, order1y 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 bum 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 applicable federal, state and local environmental and other laws, rules, regulations,
guidelines, judgments and orders and all recommendations of any public or private agency having authority over insurance
rates which now or in the future enact requirements with respect to the use or occupancy of the Premises by Tenant,
including, without limitations the requirements Imposed by the Americans with Disabilities Act which imposes requirements
relating to the design and use of the Premises and the requirements lmposecl by the Clean Air Act which imposes, among
others, requirements relating to the venting, use of, and disposal of chlorofluorocarbons and other refrigerants (collectively
the "Governmental Requlremente"); will not use or permit the use of any portion of the Premises for any 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) wilt also comply with and observe all rules and regulations established by Landlord from time to time in
accordance with Section 8.05;
0) will not pennit 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 adjacent to the Premises, or any other space
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outside 'Of the Premises for the display 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, ~equate
lighting and .ecurity for its licensees, invitees and employees during .uch periods as the Premises are open for buslne.s;
{m} wtll mam\a\n at all \\mttS 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) Tenant shall maintain the Premises in first..class condition throughout the Term of the Lease and shall
refurbish all wom surfaces to bring the same to like new condition, at Tenant's sole cost and expense, as same is
reasonably necessary dUl"ing the'T6l'm;
(p) will conduct Its labor relations and its relations with employees in such a manner as to avoKl all strikes.
picketing, boycotts or hand billing at or about the Premises and the Mall Premises. Tenant further agrees that if, during the
period of any work by or for Tenant In or about the Premises in connection with such work there is a strike, picketing,
boycotting, hand bltling or other activity ob}ectionable to Landlord, Tenant shall remove or cause to be removed from the
Premises and the Mall Premises all persons, to the extent not prohibited by law, until such strike, picketing, boycotting,
hand billing or other activity ceases and the cause thereof Is settled. to Landlord's satisfaction;
(q) will not, without obtaining Landlord's priO( written approval, which approval may be withheld in Landlord's
discretion, install any storage or propane tank, whether above or underground, at the Premises or in the Shopping Center
and if Landlord shall consent to such installation, Tenant will comply with all app'icabte laws, regulations and underMiter'
requirements concerning the Installation, O\I8<'lltion, and closure of such tank, Upcn tenmlnatlon of this Lease, Landlord
shall have the option of requiring that Tenant, at Tenant's s<>>e cost and expense, perform tests retating 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, If applicable, install and properly maintain a grease trap and either a "black iron duct", or other self.
contained venting and exhaust system acceptable to Landlord. Such Items shall be tnstalled In a manner, of materials and
at a location approved In advance by Landlord and shall, at Landlord's option, connect to trunk facilities, if any, supplied by
Landlord for same;
(.) will not u.e the plumbing facilities for any purpo.e other than that for which they _e con.tructed and will
not dispose of any damaging or injurious substance therein;
(t) will not install, or permit to be installed or operate any coin or token operated vending machine, game
machine, pinball machine, pey telephones. pay lockers, pay toilets, seales, amu..ment devices and machines for the .ale
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 two (2) machines or other devices;
(u) will not stOf8, display, rent or selt any audio or "ideo cassettes; and
(v) Sampling Rights: Notwithstanding anything contained herein to the contrary, provided Tenant does not
interfere with the adjoining businesses or impede the flow of pedestrian traffic in the Common Areas, Tenant shall have
the right to offer samples of its food products and copies of its menu only In front of and within five (5) feet of the Premises,
provided further that Tenant shall keep such area free and clear of any debris resulting from such sampling.
Section 7.04: TENANT'S USE OF ROOF, EXTERIOR WALLS, ETC.
Tenant shall not, without haVing obtained the prior written consent of the Landlord, perionm any work of any nature
whatsoever to the roof. exterior wall. or to any of the .tructural portions of Landlord'. BuDding or the Premises or in areas
reserved to Landlord or excfuded from Tenant in the Store Design Criteria. Any damage to the Premises or any person or
property occuning as a result of a breach of this provision shall be the sole responslbDity, cost and expense of the Tenant.
Notwithstanding T enanl'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 part 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.
Tenant agrees, during the hours the Premises is open for business, to control and/or operate as appticabte the
HVAC system serving the Premises regardless of whether such equipment was installed by Landlord or Tenant &0 that
conditions in.ide the Preml..s are maintained within a range of 72 to 75 degrees Fahrenhell or wlthln.uch range as may
be prescribed by applicable governmental authorities so that heat, ventilation and coated air are not drained from the
Premises or the Enclosed Malt
Sacllon 7.06: EMPLOYEE PARKING AREAS.
Landlord may, from time to time, de.ignate that particular portion. of the Shopping Center parking areas (the
"Employee Parking _") are to be used by Tenant and Its employees, or olher Individuals working at or from the
Premi.... If Landlord does .0, Tenant and Its employee. .hail perk their vehicles only in the Empioyee Parking Area..
Tenant shall furnish Landlord with a i1st of Tenanrs and employees' vehicle license numbers within fifteen (15) days after
Tenant open. for busine..ln the Premise., and at Landlord'. request, the Tenant .hail ther_ notify Landlord in writing
of any addition, deletion or other change to or from .uch list within five (5) days after Landlord makes .uch request.
Tenant shall notify _h employee in writing of the provision. of thl. SectIon 7.06 prior to each am~ commenclng
employment or work at or from the Premises. ~ Tenant or any of its employees do not park their vehicles in the Employee
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Parking Areas, Landlord may give TenSiht notice of such viotation. If Tenant does not cease such violation, or cause such
violation by the amployee to cease, as the case may be, Within \wo (2) days _ Landlord'. no\loa of vloIation Ia given,
Tenant shali pey to Landiold, as Additional Rent, an amount aquel to Twenty Five Dollars ($25.00) par day par violating
vehicle, For any subeaquent vlolallons, said Twenty Five Dollars ($25.00) per day par violating vehicle charge shall
commence witI10ut the necaesity of further notice, and Landiold shell, in addnion, have the right to heva the violating
vehicles towed at Tensnrs expense.
Section 7.07: NON-COMPETlTION COVENANT.
Deleted.
Sactlon 7.08: SIGNS AND ADVERTISING.
Tenant shall not place or perm{t to be placed on the exterior of the Premises or windows or in the store front or
roof, any sign, banner, decoration. lettering or advertising matter (collectively a "slon") without the Landlord's prior written
approval. Tenant shallsubmn to Landlord reasonabiy detailed drawings of its proposed signs to< review and approval by
Landlord prior to utiliZIng same; however, Tenant may without such approvat use In the store front professionally made
reasonably sized signs Indicating prices. styles and like Information. All signs shan be Insured and maintained at all times
by Tenant in good: condmon, operating order and repair. flashing signs are prohibited. Tenant shalllnstaJl one internally
illuminated, Indivldualty lettered sign or other type of sign as spectfled by Landlord above the storefront of the Premises
and professionally lettered name signs on Its SaNtee doors in accordance w1tt\ the Final Plans or other plans and
specifications previously approved by Landlord.
landlord shall have the right, after twenty-four (24) hours prior written no\loa 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 determinea (in i\$ reasonable judgment) 10 be in violation of the provisions of this SecIIon 7.08.
Tenant Wili keep the storefrol1t sign and display windows in the Premlaea Ughtad during all periods that the
Shopping Center is open to the public and for one-half hour after requtred business hours and for such other periods as
may be reasonably required by rules and regulations established in accordance with Section 8.05.
ARTICLE 8: COMMON AREAS
Section 8.01: USE OF COMMON AREAS.
(a) Tenant and its employees and invltees are, except as otherwise specifically provk!ed in this Lease,
authorized, empowered and privileged during the Term to use the Common Areas for their respective intended purposes
In common with other persons. Tenant's right to use any meeting room or auditorium, if any, in the Common Areas shall
be subject to such schedules and payment of such fees or charges th...efor as Landlord may from time to time adopt
governing the use thereof.
(b) Landlord shall at all times have the right to utilize the Common Areas including, without limitation, the
Enclosed Mall for promotions, exhibns, camival type shows, rides, outdoor shows, dlspiaya. automob<le and other shews or
events, the leasing or licensing of kiosks, push carts and food facilities, landscaping, seating areas, seasonal displays,
decorative items, and any other use which, In Landlord's judgment, tends to attract customers to, or benefit the customers
of the Shopping Cent....
Section 8.02: COMMON AREA MAINTENANCE SUM.
(a> The term "Common Area Malntananca Sum" (or the "CAM Sum") shall 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 Center in connection with tha oparation, repelr and maintenance of
the Common Areas and the Shopping Canter (and any additions thereto), including, without limitation but witI10ut
duplications, the costs and expenses of:
(i) operation, Inspection andlor maintenance of the storm, sanitary, electrical, gas, steam, water,
telephona systems, lighting syatem (including peles, bulbs, and flldures), and other utility syatems, including pipea, duels
and similar items; directional signs and other traffic signals, markers, controls, signs (Including aU ldentiffcation signs) both
on and off site:
(Ii) snow, ice, trash and garbage removal. pest controi, and cleaning. painllng, sweeping, striping and
repaving all parking surfaces, services areas and other portions of the Common Areas;
(U1) operation and/or maintenance of all heating, venUleting 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, facilities, equipment, and systems furnished by Landlord as part of the Common
Areas;
(Iv) ptemiums and other charges for insurance to the extent provided by Landlord, including without
limitation, liability insuranoe for personal and bodily injury, death and property damage; insurance covering Landlord's
Building and the Common Areas against fire and extended coverage perils; theft or casualtlea; workers' compensation;
plate glass insurance for glass exclusively serving the Common Areas: boiler Insurance (tf carried); losses borne by
Landlord as a result of deductlbles or setf~insured retentions canied by Landlord under an insurance ~icy or self
insurance by landlord; Landlord's risk management expenses and rent insurance provided by Landlord 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 plenting, rapianting and replacing of all 1Iowers,
shrubbery, plants, trees and other landscaping within the Common Areas:
(vi) operation and/or maintenance of Landlord's Building's structure, induding, without limitation,
froors, doors, walls, celllng, roofs, skylights, and windows;
(vii) maintenance and depreciation of aU machinery and equipment used in \he operation or
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maintenance of !he Common Arees (iiA::lUdlng but not limited to all escaletors. elava..... and other vertical transportallon (~
any), security vehicles and equipment) and all personat property taxes and other charges incurred in connection with such
machinery and equipment;
(viii) all license and permit fees. any and all parking surcharges that may result from any environmental
or other laws, 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 Vkl80 transmission sy&.tems;
(x) personnel, Including without limllallcn, claaning and maintenance personnel, Landlord's
management staff [which includes the General Manager. Assistant Manager, secretaries, bookkeepers and accountants
(regardless of where the aforesaid personnel are located)) together with the un~onms. payroll, payroll taxes and emplovee
benefits of all such personnel;
(xi) the expense of security personnel and equipment, including, without limitation, uniforms as we\\ as
transportation and surveillance equipment;
(xii) all costs. charges, and expenses Incurred by Landlord in connection with any change of any
company providing electricity service, including, without limitation, maintenance, repair, installation, and service costs
associated therewith;
(xlii) all expenses incurred by Landlord at the same rate per unit Landlord charges to tenants, in
connection with refuse disposal, water and sewer, gas, steam, exterior site lighting, electricity, air conditioning, heating,
and o!her utill\leS, incIudlng, without limitation, any and all usage, seNlce, hook-up, connection, avallabllily and/or standby
fees or charges pertaining to same;
(xiv) Landlord's suparvisory charge in an amount equai to fifteen percent (15%) of the total aggregate
cost of operating and maintaining the Common Areas, including but not limited to those things listed in Section 8.02{a);
and
(xv) expanding, adding to or reconfiguring the Common Areas (or any porllcn thereof).
(b) Notwithstanding the foregoing, the CAM Sum shall not Include:
(i) the expense of any repair or replacement required of Landlord pursuant to the reconstruction
obligations of Section 12.01:
(ii) depreciation (other than depreciation as above specified); and
(iU) any utllilles which are directly metered or submetered to tenants in Landlord's Building,
(c) Notwithstanding anything contained In this Lease to the contrary. in calculating the "CAM Charge"
(defined In Secllcn 8.03), !he CAM Charge may be based upon Landlord's estimates, which estimates and payments
thereon shall be subject to adjustments In future billings to Tanant based on Landlord's actual cost. iI being understood
and agreed 1hat in determining actual costs, Lancnord In lts sole discretion, will make allocatiOns of certain Items between
the Enclosed Mall and other portions of the Shopping Center of which !he Enclosed Mall Is a part, which need not be
based on relative size Of use.
(d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an
independent contractor or c:ontractors or others and the costs therefor shall be included In the CAM Sum. Except as
provided hereinabove, none of the costs for the original construction and installation of the Common Areas shall be
Included in lhe CAM Sum.
(e) tf Landlord from time to time acquires. or makes avallabie. additional land or ImPfovements for parking or
other Common Area purposes, the CAM Sum shall also include all costs and expenses incuM'8d by Landlord in connection
with the operation or maintenance of said additional land and improvements.
(f) The words "maintenance", "maintain" or "maintaining" as used in this Article 8 includes, without limitation,
aU repairs, replaCements and other work and serv\ce of any type whatsoever.
Secllon 8.03: CAM CHARGE.
(a) Tenant shall pay to Landlord, as Addttionai Rent, Tenant's share of the CAM Sum in the manner set forth
in Section 8,03(b) and (c) below. Tenanrs share of the CAM Sum for each calendar veer shall be an amount equal to the
CAM Sum for that pariod multiplied by the GLA Fraction (the "CAM Cha'll""). For any Partial Year, !he CAM Sum will be
multiplied by the Partial Year Fracllcn wllh!he result multiplied by lhe GLA Fraction.
(b) Tenant shall pay Landlord on the Rent Commencement Date and on the first day of each calendar month
in the Term thereafter amounts estimated by Landlord to be Tenant's monthty share of the CAM Sum. Landlord may
adjust said amount at the end of any calendar month on the basis of Landlord's experience and reasonably anticipated
costs.
(c) Following !he end of each calendar year, Landlord shall furnish Tenant a stalement covering !he calandar
year just expired, certified as correct by an independent public accountant or an authorized reprasentaUve of Landlord,
showing the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect thereto as set
forth in the preceding _n 8.03(b). W Tenant's aggregate monthly payments on eccount of !he CAM Charge are greater
than Tenant's share of the CAM Sum, Tenant shall receive a credit for the exc:ess against monthly instaJlments on account
of the CAM Charge next becoming due to Landlord; tf said payments are less than said share, Tenant shall pay to
Landlord the difference forthwith.
(d) Landlord may have heretofore elected to spread, and may hereafter elect to spread, 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
per\Qds instead of including such expenses entirety In the year In which expended or incurred, In which event. the 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.
Section 8.04: CHANGES BY LANDLORD.
As between Landlord and Tenant, Landlord shall at all times have the right and privilege of determining the nature
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, and extent of the Common Areas anCNn' making such changes, rearrangement, aO\.t'aOns or reductions therein and thereto
from time to Ume which in its opinion are deemed to be desirable or whtch are made as a result of any fedElral, state or
local environmental or other law, rule. regulation, guideline, judgment or order, including but not limited to, the location.
relocation. enlargement, reduction or addition of driveways, entrances, exits. automobile parking spaces. employee and
customer parking ar_ (~ any), the direction and flow of trefIic, installation of landscaped areas, and any and all other
facilities of the Common Areas. Landlord (or others entltlec:l to) may from time to time make alterations, renovations,
reductions. or addttiona anywhere wtthtn Landlord'a Bulkik\g or to the Common Areaa or other part of the Shopp)ng Center
or any lands or improvements added thereto. construct additional buildings or improvements on the Common Areas or
elsewhere and make alterations thereto, build additional stories on any buildings, construct multl-level or efevated or
underground parking facUltie&. and construct roof, walls, and any other Improvements over, or in connection with any part
of, or all of, the Common Areas in order to enclose same.
Section 8.05: RULES AND REGULATIONS.
Tenant agrees that Landlord may estabUsh and from time to time change, alter and amend, and enforce against
Tenant, such reasonable rules and regulations as Landlord may deem necessary or adviaatMe for the proper and efficient
use, operation and maintenance of the Common Areas, provkied that all such rules and regulations affecting Tenant and
its invitees and employees shall apply equaily and without discrimination to substantially all of the retail tenants in
Landlord's Building or substantially all retail tenants engaging In certain acts or of a certain use. The rules and regulations
herein provided for may include, but shall not be limited to, the hours during which the Common Areas shall be open for
use.
Section 8.06: LANDLORD'S MAINTENANCE AND CONTROL.
Landlord agrees to maintain and operate. or cause to be maintained and operated, the Common Areas in good
and reasonable condlllon and manner. Landlord shall, as between Landlord and Tenan!. at all times during the Term have
the sate and exclusive control, management and direction of the Common Areas, and shall provkte or cause to be
provided, security in the Common Areas at a level determined by Landlord (and Tenant shall provkte. or cause to be
provided, adequate security within Tenant's Premises as Tenant deems appropriate). Landlord may at any time and from
time to time during the Term exclude and restrain any person from use or occupancy of any of the Common Areas,
excepUng, however, Tenant and other tenants of Landlord and bona fide invitees of either who make use of said areas for
their intended purpc_ and in accordance with the rules and reguiations estabilshed by Landlord from time to time with
respect thereto. The rights of Tenant in and to the Common Areas shall at all times be subject to Ihe rights of others to
use the same in common 'It'IIth Tenant, and it shall be the duty of Tenant to keep all of the Common Areas free and clear of
any obstrucllons or interfarences aeated or penmltted by Tenant or reaulting from Tenanfs operation. Landlord may at
any time and from time to time close aU 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 dedicallon thereof or the accrual of any rights to any person
Of to the pubUc thefein, to close temporart\y any Of aI\ porUona of '\he Common Areas and to do and perform such other
acts in and to Common Areas as, in the exercise of good business judgment, Landlord shan determine to be advisable
with a view to the improvement of the convenience and use thereof by occupants and tenants, their employees and
invitees.
ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Sactlon 9.01: MARKETING SERVICE.
(a) Landlord has established Of \MIl establish an advertising and promotk>nal service (herein called the
"Marketing Service") to furnish and maintain advertising and saies promollons which, in Landlord's Judgment. will benefit
the Shopping Center. Landlord has established or wIU establish a fund (the "Merketlng Service Fund") to be used by
Landlord to pay all costs and expenses associated with the fonmulallon and carrying out of an ongoing program for the
advertising and other promollon of the Shopping Center. The program may include, without Iirnltallon. special events,
shews, displays. signs. marquees, decor, seasonal events, advertising for the Shopplng Center, promollonallUerature and
other activtties to market the Shopping Center based on sums collected from tenants. Tenant shall pay, as its share of the
cost and expense of the Mari<e\lng Servica for Ihe base calendar year (as defined in SectIon 9.03 <a) set forth hereinbelow)
of the term of the Lease, the amount set forth In the Fundamental Lease Provisions (herein called the "Merketlng Service
Charga"). The Mari<ating Service Cherge for any Partial Year shall be determined by mulliplying Tenanrs Marketing
Service Charge by the Partial Year Fraction. The Minimum Advertising Charge for any Partial Year shall be detenmined by
multiplying Tenant's Minimum Advertising 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) tenants in Landlord's Building to review the
advertising and other promotional activities provided. Such committee shall function soIety in an advisory capacity subject
to Landlord's discretion.
(c) In addition, Landlord may use the Marketing Service Fund to defray the costs of administration of the
Marketing Service, Including, without limitation, the salary and benefits of a marketing director and rEttated administrative
personnel, rent and insurance.
(d) Notwithstanding the provisions of this Article 9, Landlord may, at any time, in its sme discretion, decide
that Landlord will, on and after a certain date thereafter, no longer provide the Marketing Service. Landtord may cease
performing the Marketing Service on the date so specified by the Landtord, provided that nothing herein shall require
Landlord to breach or fall to perform any agreement or obligatton It has made with or to any third person In connection with
the Mafketing Service. If Landlord determines that It ~ or may be at risk of any such breach or failure, Landlord need not
cease performing the Marketing Bervies until Landlord determines that such risk has passed.
(e) In the event that during the Tenm there is (i) any renovation of the Landlord's Building or the Enclosed Mall
wI1ich also involves the renovation of the storefronts of fifty percent (50%) or mora of the exloting tenants' spaces (a
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'Sloref",nl Ranovallon"); or (ii) any elt)lansion of Landiord's BuHdlng which i"""",,"" the GLA of LandlO<d's Buiidlng by
ten percent (10%) or more (a "Building Expanalon"), then at the lime of a Storefront Renovation or Building Expansion,
Tenant shall pay to LandlO<d (whenever there Is and in each case of a Storefront Renovation or a Building ExpanSion) a
spacial assessment (the "Speclal AuMement") in an amount equal to the Marketing ServIce Charge (and In addition to
the Marketing Service Charge) for tha calendar year of completion of a Storefront Renovetion or a Bulidlng Expansion.
Funds collected by the Special Assessment will be used for expansion/renovation advertising andlor special events to
promote the Storefront Renovation or tile Building Expansion,
(f) Landlord reserves the right, In Its sole discretion, to recommence providing the Marketing Service at any
time after Landlord ceased providing the same.
Section 9.02: TENANTS MINIMUM ADVERTISING OBLIGATION.
(a) In addition to, and not in lieu of the Marketing Service Charge, Tenant agrees to participate In joint
advertising programs comprised of advertising media used by Landlord to advertise the Shopping Center and tenants
thereof (herein called "Tenant'a Minimum A<!vertlalng Obligation"). The initial annua\ expense to Tenant for such joint
advertising programs (the "Minimum A<!vertlalng Charge") has been computed to be tile sum and/or at the rate par
square foot of GLA of the Premises sot forth in the Fundamentel Lease Provisions as tile same may from time to time be
adjusted in accordance with the provisions of SacIIon 9.03 hereof. The Minimum AdvertJaing Cllerge for any Partial Year
shall be determined by multiplying Tenant's Minimum Advertising Charge by the PartlaJ Year Fraction.
(b) Tenant shall adVise Landlord's marketing director annually (or more frequenlly iI requested) of the joint
advertising programs in which Tenant intends to participate in each calendar year. If Tenant fails \0 furnish advertising
copy as required, or for any other reason falls to participate In any' joint advertising program for which It has been
committed, Tenant shall within sixty (60) days altar the end of such calendar year, pay to Landlord the difference between
the amount propeny spent by Tenant in fulfillment of Tenant's Minimum Advertising Obligation and the Minimum
Advertising Charge. Funds paid to the Landlord pursuant to the preceding sentence shall be spent for the promotion of the
Shopping Center in such manner as Landlord may determine.
Section 9.03: ADJUSTMENTS AND CHARGES.
(a) The Marketing Service Charge and Minimum Advertising Cllerge shali be adjusted annually by a
percentage equal to the percentage increase Of decrease in the electronic, print and outdoor advertisJng rates of the media
used for advertising and promotions in the preceding calendar year in the media market In which the Landlord's Building is
located; provided, however, that the Marketing Service Cllerge and the Minimum Advertising Charge shall not be less than
as set forth in the Fundamental Lease Provisions. The calendar year in which the Rent Commencement Date occurs shall
be considered the base calendar year and every other calendar year thereafter a revised base calendar year in computing
the adjustments hereunder.
(b) The Marketing Service Charge and tile Minimum Advertising Charge shall be paid in equal monthly
installments, in advance, on the first day of each month, except that If the Rent Commencement Date Is not on the first day
of a calendar month. then that pcrtion of the Marketing Service Charge and the Minimum Advertising Charge .which is
attributable to the days in that first partial calendar month shall be paid In advance on the Rent Commencement Date.
(c) Landlord may charge aU 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 foUowing:
(i) the services of a marketing director and all staff and outside consultants (including professional
marketing service organiZation) deemed necessary by Landlord to carry out effectively the marketing and public relations
objective of the Marketln9 Service, including without limitation all payroll, payroll taxes and 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 out
the Marketing Service, the rantal therefor to be comparable to the rental for simUarly sized commercial space;
(iii) all actual costs incurred in advertising and promoting the Shopping Canter, including without
limitation radio, newspaper, television, direct and indirect costs of services, art work, copy, printing, paper, stationery and
supplies; and
(iv) such office equipment, utilities and telephones as may be deemed necessary by the marketing
director.
(d) The marketing director and consultants shall be under the exclusive control and suparvision of Landiord,
and Landlord shall have the sole authority to employ and discharge them or either of them and the staff of the director.
(e) Notwithstanding the apportionment of amounts to the above--descrlbed markeUng and advertising funds as
set forth In both Ihls Article 9 and In SecIIon (k) of the Fundamantal Lease Provisions, Landlord hereby reserves the right
from lIme.to-time to aliocate the total amount received by Landlord for such funds in any manner whataoever Landlord. In
its sole discretion, deems appropriate, so long as any and all such funds attributable to said marketing and advertising
funds are used only to defray the cost of the marketing and advertising programs Initiated by Landlord and to market,
advertise and promote tile Shopping Center.
Section 9.04: DISSOLUTION OF MERCHANTS ASSOCIATION,
In the event there presently exists a merchant's association in use in the Shopping Center, Tenant agrees that
Landlord shall have the unilateral right to take any steps required 10 terminate the same and to replace such merohanrs
association with a marketing service, promotion fund, advertising fund, or any other .slmilar entity designated by Landlord In
which event, upcn notice to Tenant, Tenant shall automatically be deemed a member lhereof and shall contribute to the
same the amount which Tenant immediately prior to such termination was required to conbibute to the merchant's
association, Further, Tenant does hereby irrevocably assign to Landlord all of Tenant's vollng rights contained In any
byfaw Of other $k'nHar document forming or governing the administration of any such merchanfs association.
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ARTICLE 10: CONSTRUCTION WORK
Section 10.01: APPROVALS AND STANDARDS.
Tenant shall not perform any construction or make any alterations or changes in or to the Premises at any time
during the Term (herein sometimes caUsatively called "Conatructlon Wortc") without Landlord's prior 'Nritten consent. In
no event shall Tenant make or cause to be made any penetratiOn through any roof, floor or exterior or corridor wall without
the prior wrillen consent of Landlord. Tenanl shall be directly responsible tor any end all damages, including, wllhout
Iimllatlon, damages to Landlord's Building, the Premises and the premises of other tenants in Landlord's BuHding resulting
from any of Tenant's Construction Work, whether or not Landlord's consent therefor was obtained. Any and all
Construction Work which is consented to by Landlord shall be performed in accordance with (a) plans and speciflcallons
prepared by a licensed archtt8C\, or engineer and approved In writing by the Landlord before the commencement of the
Construcllon Wort<., (b) all necessary governmental approvals and permits, which approvals and permits Tenant shall
obtain at its sole expense, and (c) all applicabte laws, rules, regulatiOns and buikting codes relating thereto, All
Construction Work shall conform to Landlord's Store Design Cr~erla and shell be performed In a good and workmanlike
manner and dlUgentty prosecuted to completion to the end that the Premises shall at all times be a comptete unit except
during the period of the Construction Wort<.. Any Construction Wort<. performed by Tenant wIIhout Landlord's consent shall
be returned to its ortglnal condition at Tenant's expense upon request by Landlord. Tenant shaH perform any Construction
Work in such a manner as not to obstruct the access to the premises of any other occupant to the Enclosed Mall nor
obstruct other Common Areas.
Notwithstanding anything set forth in Section 10.01 to the contrary, Tenant may without landlord's consent, make
alterations to the Interior of the Premises whk:h do not alter, modify or In any other manner whatsoever affect the structural
porIIons of the Premiaas (including, but not limited to, the storefront) and/or the structurel integrity of the building of which
the Premises shall form a part and/or the plumbing, electrical. heating, ventilating or air conditioning or mechanical
systems and installations in the Premises, provided that any such alter8tion (or series of such related alterations) does not
involve a cost or aggregate coat (as the case may be) in excess of Ten Thousand and '00/100 (510,000.00) Dollars per
Year.
Sactlon 10.02: INSURANCE AND RECONSTRUCTION.
In the event Tenant shall perform any permitted or required Construction Work, none of the Construction Work
need be insured by Landlord under such insurance as Landlord may carry upon the Landlord's 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
Section 11.01: TENANTS INSURANCE.
(a) Tenant further covenants and agrees 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 spectfied and in the form hereinafter provlded for:
(i) Commercial General Liability Inaurance. Commercial general liability insurance covering the
Premises and Tenanrs use thereof against claims for Kpersonal and advertising injury" and ~bodlly injurY or death,
"property damage" and 'productJcompleted operations" liability (as the aforesaid terms are dafined in such policy)
occurring upon. in or about the Premises and Tenant's activities in the Common Area, such Insurance to afford protection
to the limit of not less than $1,000,000 regardless of the number of persons claiming InJuries or damages arising out of any
one occurrence. The Insurance coverage required under this SectIon 11.01(a)(i) shall, in addlllon, tllC\and to any liability of
Tenant arising out of the indemnities provided for in Section 11.03. Therefore, such policy aha!' not contain any exclusion
for contractual iiablllty coverage for any of tho foregoing coverages. The gel18fal --'e limns under the liabHity
insurance policy or policies must apply separately to the Premises and to Tenant's use thereof, The certiflC8te of
insurance evidencing the commercial general liability form of policies shall specify on the face thereof that the limits of
such policies apply separately to the Premises.
(") 801...... Deleted.
(Iii) T.nant Lauahold Improvem.nta and Properly. Insurance covering all of the items included in
Tenant's leasehold improvements, heating, ventUatlng and air conditioning equipment and all other improvements and
bettermonts installed by (or demised by this Leesa to) Tanant, and all trade fixtures, merchandise and personal property
from time to time in, on or upon the Premises, and alterations, additions or changes made by Tenant pursuant to Article
10, In an amount not less than eighty percont (80%) of their full replacement cost from time to time during the Term,
providing special form coverage, including but not limited to, protection egainst the perils included with tho standard state
form of f~e and broad form extended coverage insurance pelicy, logethar wIIh Insurance egainst sprinkler damage,
vandalism and malicious 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 tennlnate under the provisIOns of Article 12.
(Iv) Work...' Companaatlon And Employer'S Liability. Workars' Compensallon and Employ<lfS
Liability insurance affording statutory coverage and containing statutory limits with the EmpJoyers LiabUity portion thereof to
have minimum limits of $1 ,000,000.00,
(v) Bu.nus Int.rruptlon lnau...nce. Business interruption tnsurance equal to not less than fifty
percent (50%) of the estimated gross earnings (as defined in the standard state form of business interruption insurance
policy) of Tenant at the Premises which insurance shall be issued on an ~a11 risks" basts (or its equivalent).
Tenant shall not be required to maintain the Business Interruption Insurance set forth in this
subsection 11.01(a)(v) of this Lease, bulli Tenant elects not to maintain such Insurance, then and automallcally by such
election and without the need of any further documentation, Tenant releases and discharges landlord, its agents, servants
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and employees forever from any claims-: actions, tossas. damages. causas of action, manners of action, covanants. bends
and agreements arising out of 0< resuUing from business Interruption to the eldent thet the insurenoa required under this
subsection 11 ,01 (a)(v) would have covered the same bywhemsoever 0< whatsoever caused. In all evants Tenant shall be
respensible to replace. at Tenanfs sole cost and expense, all plate glass of or in the Premises including, without limitation,
any funning part of the slorefront.
(b) All pcHtcies of insurance provided for in Section 11.01{a) &hall be issued by msurance companies with a
financial rating of not less than A VII as rated In the most current available "S-t'. In.urance Report8I1, and qualtfled to
do business In the state in which Landlord's Building Is located. T 808ol's obligation to provide the insurance coverage
specif1ed in Section 11.01 (a)(i) abeve shall not be affected by any deductible with respect to such policy or se~ insurance
retention maintained by Tenant. Each and every such policy, except tor Workers' Compensation and Employers Liability
insurance:
(i) shall be- Issued In the name of Tenant and shall name as an additional Insured each of Landlord.
Agent and any other parties in interest from time to time designated in writing by notice from Landlord to Tenant:
(ii) shall be for the mutual and joint benefit and protection of Landlord and Tenant and any such other
parties in interest;
(iii) shall (or a certificale thereof shall) be delivered to each of Landlord and any such other parties in
interest w~hin thirty (30) days prior to the expiration of each such policy, and, as often as any such policy shan expire or
terminate. Renewal or additional policies shaU be procured and maintained by Tenant In like manner and to like extent;
(iv) shall contain a provision that the insurer will give to Landlord and such other parties In mterest at
least thirty (30) days notice In writing In advance of any material change, cancellation, termination or lapse, or the effective
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) shan contain a prOVision that Landlord and any such other parties in interest, aIIhoogh named as
an additional Insured, shall nevertheless be entitled to recover under said ~icfes for any loss occasioned to it, its
servants, agents and employees by reason of the negligence of Tenant.
(c) Any insurance provided for In Section 11.01(a) may be maintained by means of a policy or policies of
bianket insurance, covering additional items 0< Iocallcns or insureds, provided, however, that:
(I) Landlord and any other parties in Interest from time tQ time des\gnsted by Landlord to Tenant shall
be named as an additional Insured thereunder as Its Interest may appear;
(ii) the coverage afforded Landlord and any such other parties in interest will not be reduced or
diminished by reason of the use of such blanket policy of insurance;
(i1i) any such pency or policies [except any covering the risks referred to in Section 11.01(a)(i)) shall
specify therein (or Tenant shall furnist1 Landlord with a written statement from the insurers under such policy specifying)
the amO<Jnt of the totai insurance anocated to the Tenanfs improvements and property more spaclflcaJly detailed in Section
11.01(a)(iii): and
(iv) the requirements set forth in this Article 11 are otherwise satisfied.
(d) Tenant agrees to permit Landlord at all reasonable times to inspect the policies of Insurance of Tenant
with respect to the Premises for which policies or copies thereof are not delivered to Landlord.
Section 11.02: LANDLORD'S INSURANCE.
(a) Landiord shall at ail times during the Tenm carry and maintain the foliowing types of insurance in the
amounts specified and in the form hereinafter provided for:
(i) Commercl.1 General Liability Inaurance. Commercial general liability Insurance against claims
for property damage and bodily injury 0< death, such insurance to afford protectlon to the limit of not lass than $5,000,000
in respect to property damage, Injury or death to any number of persons arising out of anyone occurrence.
(iI) Landlord'. Real and P...onal Property. Insurance covering the Landlord's Building [exclusive
of any tenant improvements and betterments and property required to be insured by Tenant pursuant to Section
11.01(a)(iii)) in an amount not I"s than one hundred percant (100%) of full replacement cost (exclusive of the cost of
excavations. foundations and footings), from time to time during the Tenm, providing protection against parils included
within the standard state fonm of special form coverage Insurance pelley, together with insurance against sprinkler
damage, vandalism and malicious mlacrnef, and such other nsks as Landlord may from time to time determine and with
any such deductlbles as landlord may from time to time determine.
(iii) Rani Inauranca. Rent insuranoa with raspect to the premises of the tenants in the Shopping
Center iI available at a cost which Landlord in Us sole judgment deems "","onable, against loss of rents in an aggregale
amount equal to not more than twenty-four (24) times the sum of <I) the monthly requirement of Minimum Rent of such
tenants, plus (Ii) the average monthty amount estimated from time to time by Landlord to be paya~ by such tenants as
Percentage Rent and as Additional Rent pursuant to their leases.
(b) Any insurance provided for In Section 11.02(8) may be maintained by means of a poiicy 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 any policy or policies maintained by Landlord and shall 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.
Section 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
p8fSons 0< damage to property of Tenant 0< any other person during the T arm, for any cause whatsoever (including
without limitation the acts or omissions of Landlord or Agent, bursting pipes and smoke) by reason of the construction,
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use, occupancy or enjoyment of the h--emlses by Tenant or any person therein or hOlding uncler Tenant or happening upon
or about the Premises and Tenant for the purpos.. of this SectIon 11.03 shaJi be deemed 10 be in exclusive control of the
Premises during the Term, Tenant does herebyagru 10 end shall prolact, defend, indemnify and save hanmless Landlord
and Agent from all daims. actions, demands, costs and expenses and liability whatsoever, Including reasonable attorney's
fees, on account of any such real or claimed event, damage or liabnlty, and from all liens, claims and demands arising
from (8) any occurrence In, or about the Premises, and/or (b) Tenant's activtties In the Common Areas, and/or (c) arising
out of the construction, use, occupancy or enjoyment of the ?remises, and/or (d) occasioned In whole or In part by any act
or omission of Tenant, Its agents, contractors, servants, employees or invitees, regardless of where occurring. Tenant
further agrees that the obligallcn to defend Landlord and Agent continues regardless of allegations of negligence or other
'ault on the part of Landlord or Agent until such negligence or fau<< has been established In e final edjudication. Tenant
shall not, however, be liable for damage or Injury occasioned by the willful act of the Landlord which is the cause of
damage or injury unless Tenant Is required by this Lease to sasume or Insure against such damage or injury. Tenant's
obUgations under the aforesaid indemnity shall not be limited to the amount of commercial general Ilabmty insurance
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 loss or damage
occasioned to Landlord or Tenant, as the case may be, their respactive property, the Premises. its contents or to the other
portions of Landlord's Building, arising from any risk covered by special form coverage insurance, and to the extent of
recovery under valid and collecllble pcIicles of such Insurance, provided that such waiver doa& not invalidate such pcIicies
or prohibit recovery thereunder. The parties hereto each, on behalf of their respective Insurance companies Insuring the
property of either Landlord or Tenant against any such loss, waive any right of subrogation that such insurers may have
against I..andlord or T enent, as the case may be.
SectIon 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS.
Subject to Landlord's obllgetions in Section 13.01 to maintain the structure of the Premises, Tenant agrees at its
own expense to comp'y 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 private body and any governmental authority having jurisdiction with respact to the uae or occupancy of
Landlord's Building, including, but not limited to, Installation of fire extinguishers or automatic detec:tion, suppresskln
systems and/or IIIe-safety systems, any changes, modifications or alterallcns In \he detecllon and/or suppression systems
or add<<ional detectors and/or sprinkler heads or the location of partitions, trade fixtures, or other contants of the Premises,
Landlord shall not materially chenge the dimanslons of the Premls.. or materially affect access 10 the Premises 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 11.06: 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 contravene Landlord's pcIlcies insuring agelnsl/oss or damage by fire or other hazards, or which will prevent
Landiord from procuring such pcIlcies in companies acceptable 10 Landlord at regular rat.. or which will In any way cause
an Increase in the insurance rates for any portion of the Shopping Center. If Tenant violates any prohibition provided for in
the first sentence of this Section 11.06, landlord may, without notice to Tenant. correct the same at Tenant's expense,
Tenant shall pay to Landlord as Addillcnal Rent forthwith upcn demand the amount of any increue In the premiums for
insurance resulting from any violation of the first sentence of \his SectIon 11.06. even II Landlord shall have consented to
the dOing of or the keeping of anything on the Premises which constttutad such a violation (but payment of such Additional
Rent shall not entitle Tenant to violate the provisions of the first sentence of this Section 11.06).
Section 11.07: LIMIT OF LANDLORD'S il'SPONSIBILITY.
Landlord shall not be responsible or liable to Tenant for any loss or damage that may be occastoned by or through
the acts or omissions of persons occupying space adjoining the Premises or 8TVi other part of the Shopping Canter or
Landlord's Building, or for any ioss or damage resulting 10 the Tenant or <<s property from bursting, sloppage or leaking of
water, gas, sewer or steam pipes or other utiilly lines or for any damage or loss of property within the Premises from any
cause whatsoever. Such limitation of responsibility and liability shall not, however, appty to Landlord's .willful acts or
negligent omissions. eXC8ptto the extent the same are waived or released by Tenant pursuant to Sections 11.03 or 11.04.
ARTICLE 12: DAMAGE OR DESTRUCTION
Section 12.01: LANDLORO'S DUTY TO RECONSTRUCT.
In the event the Landlord's Building is damaged or destroyed by any of the risks referred to in SectIon 11.02(a)(ii}
against which Landlord is obiigatad to procure insurance, Landlord shall (subjact 10 being able 10 obtain all necessary
permits and approvals therefor, induding without limitation permits and approvajs required from any agency or body
administering environmental laws, rules or regulations), within one hundred twenty (120) days efter such damage or
destruction (unless Landlord terminates this Lease pursuant to SectIon 12.03), commence to: (8) repair or reconstruct
Landlord's Building and (b) repair or reconstruct the structural floor slab, demising wall sluds (wIIhcut drywall) and roof (or
floor slab above) as the case may be of the Premises. Landlord shall prosecute all such work diligently to completion. In
no event shall Landlord be liable for interruption to Tenant's business or for damage to or repair or reconstruction of any of
these things which Tenant I. required to insure pursuant 10 Sactlon 11.01(a)(iII), nor shall Landlord be required 10 expend
more for any repair or reconstruction pursuant to this Section than the net amount of Insurance proceeds actually received
by Lanc:llord and allocable to the Premises on a square foot basis.
Section 12.02: TENANT'S DUTY TO RECONSTRUCT.
~ any itam which Tenanlls required to insure pursuant to Sactlon 11.01(a)(iii) is damaged or destroyed by fire or
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other casualty, Tenant shall (SUbjeci'tObeing abfe to obtain all necessary permits and approvaJs therefor. including without
limitation parmlts and approvals required from any agency or body administering environmental laws, ruI.. and
regulations), within flftaen (15) days after Landlord has subltantialiy repaired or raconstrucled Landlord's Building and the
portion of the Premises Landlord is obIigaled to repair or _struct pursuant to SecIIon 12.01 (unless Landlord
lermlnates this Lea.. pursuant to Section 12.03), commence to repair or reconstruct such damaged or d..troyed ilems to
at least substantially the same condition in which they were prior to such damage or destruction and prosecute the same
diligenUy to completion.
Sacllon 12.03: LANDLORD'S RIGHT TO TERMINATE.
(a) Landlord shall have tha option to terminate this Lea.. upon giving W1itten notice to Tenant of the exercise
lhereof wilhin one hundred twenty (120) days after the Landlord's Building is damaged or destroyed~:
(i) the Premises are rendered whotly unf\1 for carrying on the Tenant's business after damage to or
destruction thereof from any cause; or
(i1) Landlord's Building is damaged or destroyed as a resutt of any flood, earthquake, acl of war,
nuclear reaction, nuclear radiation or radioactive contamination, or from any other risk not covered by insurance which
Landlord is obligatad to procure pursuant to Section I I .02(aXil); or
(III) any damage 10 or destruction 01 Landlord's Building occurs within the last three (3) Years of the
Term or in any Partial Year at the end of the Term; or
(iv) frfty parcent (50%) or more of the GLA In lha Landlord's Building immedialely prior to the damage
or destruction is rendered unfit for carrying on business therein; or
(v) Landlord's Building is so substantially damaged that It is reasonably necessary, in Landlord's
judgment, to demolish the same for the purpose of reconstruction.
(b) Unless so termlnaled, this Lease shall continue in full force and effect, and Landlord and Tenant shall
parform lhair respective obligations under Secllcn 12.01 and 12.02. Upon any termination of this Lea.. under any of tha
provisions of this Section 12.03, the Rent shall be adjusled as of tha dale of s""" term_ and the partles shall be
released from allliablJity hereunder upon the surrender of possession of the Premises to the Landlord, except for items
which have been theretofore accrued and are then unpaid.
Sacllon 12.04: ABATEMENT OF RENT.
If this Lease is not terminated by Landlord pursuant to Saction 12.03 after dam_ or destruction of the Landlord's
Building, and if the Premises are rendered wholly or partially unfit for carrying on Tenant's business by such damage or
destruction. then the Minimum Rent and the Additional Rent payable by Tenant under this Lease shall be abated, and the
applicable Break Point and Par1la1 Year Break Point (as tha case may be) shall be reduced in direct proportion to the
percentage of the GLA in the Premises which is rendered unfit for that period from tha dale tha Premis.. are so rendered
unfit until the earlier'of sixty (60) days after Landlord re-dellvers possession of the Premise. to Tenant or the date Tenant
reopens for business.
ARTICLE 13: MAINTENANCE OF PREMISES
Section 13.01: LANDLORD'S DUTY TO MAINTAIN STRUCTURE.
Landlord will keep the roof, exterior face of service corridor walls, structural columns and structural floor or floors
which enclose the Premises (excluding floor coverings, such as carpeting, terrazzo and other special flooring, walls
instailed at the request of Tenant, doors, windows and glass) In good repair. Notwithstanding the foregoing provisions of
this Saction 13.01, Landlord shail not in anyway be liable to Tanant unless Tanant shall hava given Landlord _n notice
of the necessity for such repairs and Landlord fails to commence making such repairs within a reasonable period
thereafter, and provided that any damage necessitating such repairs shall nol have been caused by the omission,
negligence or willful act of Tenant, its concessionaires, invitees, officers, employees, licensees or contractors or by the
failure of Tenant 10 perform any of ils obligations under this Lease (In either of which events Tenant shall be responsibla
therefor) or have been caused to any of the ilems Tenant is required to insure pursuant to Article 11. Landlord shall be
undar 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 mechanicai
installation therein, except as may be expressly set forth in this Lease.
Section 13.02: TENANrS DUTY TO MAINTAIN PREMISES.
Tenant will at all times, from and after delivery of possession of the Premises to Tenant, at Its own cost and
expense, maintain and make all needed repairs, and do al\ other work to or for the Premises and every part thereof to
render the same in good and tenantable condition. Tenant's obligation under this Section 13.02 shalllncfude, but not be
limited to, repairing, replacing and otherwise maintaining items as are requtred by any governmental agency having
jurisdiction thereof (whether the same is ordinary or extraordinary, foreseen or unforeseen), walls (other than the exterior
face of service corridor walls), ceilings, plate glass, utility meters, pipes and conduits outside the Premises which are
installed by or demised to Tenant or which exclusively serve the Premises, all fixtures, heating, ventilating and air
conditioning equipment installed by or demised to or used solely by Tenant, If any (whether such heating ventilating and air
conditioning equipment is located Inside the Premises, between the ceiling and the roof or on the roof of Landlord's
Building), sprinkler equipment and other equipment within the Premises, lhe storefront or storefronts, all of Tenanrs signs,
security grilles or similar enclosures, locks and closing devices, and all window sash, casement or frames, doors and door
frames; provided that Tenant shall make no adjustment, alteration or repair of any part of any sprinkler, life safety. or other
detection or suppression system in or serving the Premises without landlOrd's prior approval. Tenant shall permit no
waste, damage or injury to the Premlsas and Tenanl shalllniliate and carry out a progrem of regular repair and other
maintenance of the Premises, including the painting or refinishing of all areas of the interior and the storefrOnt as approved
by Landlord. so as to Impede, to the extent possl~e, deterioration by ordinary wear end tear and to keep the same In
attractive condition. Tenant will not overload the electrical wiring or other systems serving the Premises or within the
Premises, and will install at Its expanse, but only alter obtaining Landlord's written approval, any additionai electrical wiring
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_Ion 13.03: RIGHT TO ACCESS TO THE PREMISES.
Landlord and its authorized representative may enter the Premises at any and all times during usual business
hours upon forty-eight (48) hours notice to Tenant for the purpose of Inspecting the lame (and at all other times and
without notlco In the C8$8 of emergency). Tenant further agrees that Landlon:l may from time to time go upon the
Premises and make any additions, atterations, repairs or replacements and do other \t\'Of'k to the Premises or to any
utillties. systems or equipment located In, above or under the Premises which Landlord may deem necessary or desirable
to comply with all governmental requirements andlor recommendatfons of an Insurance raUng bureau or of any similar
pubUc or private body or that Landlord may deem necessary or desirabte to prevent waste or deterioration in connection
with the Premises W the Tenant doss not make or cause such addItiOns, aItoIations, repairs or _ ~ to be made or
parformed prompUy after receipt of written demand from Landlord. Nothing herein contained shall imply any duty on the
part of Landlord to do any such Work which under any provision of lhis Lease thai Tenant may be required 10 do, nor shall
it constitute a waiver of Tenant's default In falling to do the same. In the event landlord performs or causes any such work
to be parfonmed, Tenant shall pey the cost thereof to Landlord as AddItiOnal Rent upon demand therefor. In addition.
landlord may install, use, repair or replace any and all materials, tools and equipment, and pipes, ducts, conduits,
columns, foundations. footings, wires and other mechanical equipment serving other portions, tenants and occupants of
Landlord's Bu"ding In, through, under or above the Premises that land\ord deems deslrable therefor, without the same
constituting an actual or constructive eviction of Tenant. Landlord may also enter the Premises at aU times during usual
business hours for the purpose of showing the Premises to prospective pul'chasers, mortgagees and tenants, No exercise
by landlord of any rights provided In Section 13,01 or 13.03 shall entitle Tenant to any damage for any Inconvenience,
disturbance, loss of business or other damage to Tenant occasioned thereby nor to any abatement of Rent.
_Ion 13.04: CONFLICTS.
To the extent, if any. that there may be any conflict between this Article 13 and Article 12, or between this Article
13 and Article 22, Article 12, if applicable, or Article 22, if applicable, shall prevail,
ARTICLE 14: FIXTURES AND PERSONAL PROPERTY
Section 14.01: TENANT'S PROPERTY; REMOVAL.
My trade fixtures, signs, counters, shtMving, inventory, showcases, mmors, and other personal property of Tenant
not parmanenUy affixed to the Premises shall remain the proparty 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 Term, to remove any and all of Its personal
property which It may have stored or Installed in the Premises. If Tenant Is in default under this lease, Landlord shall have
the right to take exclusive possession of such property and to use such property without rent or charge, and Landlord,
whether or not rt takes pcS$8ssion of such proparty, shall hava the benallt of any lien thereon pannitted under the laws of
the state in which Landlon:l's Building Is located and, W such possession is token or such lien Is essarted by Landlord In any
manner, including but not limited to operation of law, Tenant shall not remove or perm\\ the removal of said trade fixtures,
signs or other personal property until such possession Is relinquished or the lien Is removed. 8S the case may be. Nothing
in this Article shall ba deemed or construed to pannit or allow Tenant to remove any of such personal property prior to the
end of the Term without the Immediate replacement thereof with similar paraonal property of comparable or better quallly,
or otherwise render the Premises unsuitable for the continued conduct of Tenanfs permitted use thereof. Tenant at its
expense shall immediately repalt and otherwise make good any damage occasioned to the Premises or Shopping Center
by reason of installation or removal of any such personal property unless such damage Is caused by Landtord pursuant to
Section 13.03 and W Tenant falls to ,emove such items from the Premises prior to such expiratlon or termination, or W this
Lease is terminated by Landlord and Tenant falls to remove such Items from the Premises prior to the effective date of
such tenmination. then In any such avent all such personal proparty shall thereupon become the property of Landlord,
without further act by either party hereto, unless Landlord elects to require all or a por1Jon of such iiams to be ramoved by
Tenant in which case Tenant shall promptly remove the Items designated by Landlord and restore the Premises to its prior
condition at Tenant's expense.
Section 14.02: IMPROVEMENTS TO PREMISES.
All improvements mede to the Premises by Tenant, including, but not limited 10, the iiams furnished pursuant to
Tanant's Work. alterations. changes and addItiOns by Tenant, light fbdures, floor coverings end partlllons, healing,
ventilating and airooeondltlonlng equipment, mechenlcal and plumbing equipment, but excluding trade fixtures and signs
and other parsonal property specified in Sec\lon 14.01, shall become the property 01 Landlord upon explrallon or earlier
termination of this Lease: provided, however, that Landlord may designate by written nolloa to Tenant, prior to Tenant's
making such arterations, those alterallons, changes, and addlllons made In the P.-mises af\er the Rent Commencemenl
Data which shall ba removed by Tenant at the expiration or tanmlnallcn of this Lease, In which event Tenant shall at
Tenant's sole cost and expense promptly remove the same and repair and otherwise make good the damage to the
Premises caused by such removal or by the installation of such alterations. changes or additions.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
_Ion 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 Ik:ense or concession or other occupancy or use agreements or mortgage or
hypothecate this lease or the T enent's interest In and ,to the lease or the Premises or any part thereof (herein collectively
referred to as "Tranafer") without first obtaining in each and every instance the prior written consent of Landlord which
Landlord may withhold in its sole di~. Any attempted Transfer without such prior written consent shall be an Event
of Default, shall not be binding upon Landlord, shell confer no rights upon any third pa.-on and shall not relieve Tenant of
Its obligations under this Lea$8. Any transfer by merger, ccnsolidation, IIquidallon or otherwise by operation of law,
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incJudinb. but not limited to, an assignment for the benefit of oredltor&, 88 well as any transfer, assignment, or
hypothecation of any stock or general partnership Interest in Tanant so as to result in a change of the controlthenlof, shall
be Included In the tenn 'Tranafar" for the purposes Df this Leas. and shall be a violation of this Section 15.01 and an
Event of Default, except as otherwise specifically set forth in this Article 15. Consent by Landlord to any Transfer shall 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 and shall remain fully lIatHe for the full performance of each and every obligation under this
lease to be performed by Tenant and the ass\gnee shall be deemed to halve assumed, and agreed to be bound by all of
the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (the
"Requaat Notice") requesting Landlord's consant to the proposed Transfer at least thirty (30) days prior to the date on
which, with Landlord's prior wrttten consent, the Transfer would be effective. The Request Notice shall contain, without
limitation, at least: (i) the full kientiflCStion of the proposed transferee; (i1) the most recent financial statements and other
evidence of the transferee's financlal responsibility and business performance; (ill) the transferee's proposed specifiC use
and business proposed to be conducted at the Premises; (iv) the scope of any proposed afterations to the storefront of and
within the Premises; and ('I) the monetary and non-monetary terms and conditions of the proposed Transfer. Landlord
shall have the right and option (the "Take-back OptlonR), exercisable by Landlord giving Tenant written notice within thirty
(30) days after Landlord's receipt of the Request Notice of reacquiring the Premises or portion thenlof wt\lch Is \he subject
of the proposed Transfer and terminating this Lease with respect thereto. If Landlord etects not to exercise the Take-back
Option and elects to give Landlord's written consent to the proposed Transfer, then Tenant shall pay to Landlord forthwith
upon Tenant's receipt, as Additional Rent, all sums and other economic consideration (whether by lump sum payment or
otherwise) received by Tenant in any month as a result of the Transfer whether denominated rentals or otherwise which
exceed, in the aggr_te, the total sums which Tenant is obligated to pay and does pay Landlord under this Leasa in the
same month (prorated to reflect obligations allocable to that portion of the Premises which is the subject of the Transfer),
all without affecting or reducing any other otHlgatlon of Tenant hereunder provided. that in the case of an assignment of
this Lease such Additional Rent payment by Tenant to Landlord shali equal the entire consideration for such assignment.
If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer is not made (including without
limitation, delivery of possession by Tenant to and occupancy by the proposed transferee approved by Landlord) within
thirty (30) days after the date Landlord gives its written consent to the proposed Transfer, then Landlord's written consent
and the Transfer shall be automatically null, void and of no force or effect whatsoever. The Take-back 0pIi0n shall not be
exhausted by anyone exercise thereof by Landlord but shall be exercisable from time to time and as often as there is a
proposed Transfer, The Taka-back Option may be exercised by any assignee of Landiord's right, tltte and interest in this
Lease or any other person which at the time of the Request Notice is Landlord under this Lease. If after receipt of the
Request Notice Landlord requests additional or further Information which Landlord reasonably requires to consider the
proposed Transfer, Tenant shall <laIiver such information \0 Landlord upon Landlord's requesllherelor and the period for
Landlord to exercise the Takeback Option shall be extended by the number of days between Landlord's request for and
Landlord's receipt of such additional or further information. Tenant shall pay to Landlord the sum of Five Hundred
($500.00) DoUars to defray Landlord's administrative costs, overhead and counsel fees in connection wtth 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 assumptlon agreement executed by the assignee and assignor.
ARTICLE 16: DEFAULTS BY TENANT
Sactlon 18,01: EVENTS OF DEFAULT.
This Lease is made upon the condition that Tenant shall punctually and faithfully perform and fulfill all of the
covenants, conditions and agreements by it to be performed as In this lease set forth. In addItiOn to events elsewhere
stated in this lease as Events of Default, the following shall be deemed to be an Event of Default (each of which is
sometimes referred to as an "Event of Default" in thiS Lease):
(a) the failure by the Tenant to pay Minimum Rent and/or Percentage Rent and/or Additional Rent or any
instalimant or year-end adjustment thereof ff such failure conllnues for twenty (20) days after written notice thereof by
landlord to Tenant; or
(b) the failure of Tensnt to submit its Destgn Drawings on or before the Oestgn Drawings Submission Date in
accordance with SectIon 2.03(c) or commence Tenanrs Work on or before the Construction Commencement Date in
accordance with the terms and cond~ions of Section 2.03(c}; or
(c) the failure of Tenant to open its business to the public in the Premises on or prior '" the date on which
Tenant is required to open its business to the public plJrsuant to the terms and conditions of Secllon 2.04, or the failure to
open the Premises, or to keep the Premises open, on the days and hours required by this Lease, or If Tenant vacates.or
abandons the Premises: or
(d) the fa"ure of Tenant to observe or perform any of the covenants, terms or conditlons set forth in Article 15
(relating to assignment and subletting); or
(e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner
which is outside the ordlmary course of Tenanrs business; or
(I)
hereof; or
the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7
(g) repetition or continuation of any failure to tim~y pay any Minimum Rent and/or Percentage Rent and/or
Additional Rent or other sums reserved hereunder or to timely report Gross Sales as provided in Section 4.06 hereof
where such failure shall conllnue or be repeated for two (2) consecutive months, or for a total of three (3) months in any
period of ~ve consecutive months; or
(h) repetition of any failure to observe or perform any of the Lease covenants, terms Of conditions more than
three (3) times, in the aggregate. in any period of twelve (12) consecutive months; or
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, (i) any other failure of lenant to observe or pert:orm any of the other covenants, terms or conditions set forth
in this Lease where said failure continues for a period of ~rty (30) days after written notice thereof from Landlord to
Tenant (unless such failure cannot reasonably be cured within thirty (30) days and Tenant shall have commencecl to cure
said failure within thirty (30) days and continues dlligentiy to pursue the curing of the same until completed); or
U) 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 process of law upon, on or against the estate created in Tenant hereby; the application for or the appointment of a
liquidator, receiver, custodian, sequestrator, conservator, trustee, or other similar judicial officer for Tenant 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,
creditor adjustment or debtor rehabilitation laws, state 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) notwithstanding the Tenant's obligation to pay Minimum Rent and/or Percentage Rent and/or Additional
Rent as of the first day of each month during the Term, in the event that an insolvency, bankruptcy or similar proceeding is
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 8 ratable basis from the date of the commencement of any such proceeding
through the end of the month in which such proceeding Is commenced.
Section 16.02: LANDLORD'S REMEDIES.
(a) landlord may treat any Event of Default as a material breach of this Lease. Landlord's failure 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 future of such performance, right or remedy. In addition to any and
all other rights or remedies of Landlord in this Lease or at iaw or in equity provided, Landlord shall have tha foliowlng rights
and remedies ~ there shall occur any Event of Default none of which shall be construed as an election to forego any of tha
other remedies then or in the future:
(i) accelerate the whole balance of Rent, and aJi other sums payable hereunder by Tenant, for tha
entire balance of the Term, or any part of such Rent and other sums; and/or
(II) to terminate this Lease, 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
(lil) 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 chargeatHe 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 charges shall immediately attach 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 satisfy the claim of Landlord.
(b) Confession of Judament - Rent. Tenant covenants and agrees that If there is an Event of Default, then
Landlord may, without limitation, cause judgments for money 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 acting for Landlord) in any
and all actions commenced against Tenant for recovery of the Rent andlor other amounts to be paid to Landlord by Tenant
to appear for Tenant, and assess damages and confess or otherwise enter judgment against Tenant, for all or any part of
the Rent and/or other amounts to be paid to Landlord by Tenant Including, wtthout limitation, sums under Section 16.02(a),
together with Interest, costs and an attorneys' commission of five 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 except as may otherwise be required by applicable law; (il) the warrant of attorney
herein granted shall not be exhausted by one or more exercises thereof but succesalve actions may be commenced and
successive judgments may be confessed or otherwise entered against Tenant from time to time as often as any of the
Rent and/or other amounts and sums shall fall or be due or be in arrears, and this warrant of attorney may be exercised
after the termination or expiration of the Term and/or during or after any extensions of the Term or renewals of this Lease;
and (Iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto.
(c) Confeulon of Judament - Pouauion. 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 acting 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 possession of the Premises against Tenant
and all persons claiming directly or indirectly by, through or under Tenant. and thareupcn writ of possession may forthwith
issue and be served, without any prior notice, writ or proceeding whatsoever except 8S may otherwise be required by
applicable law; (Ii) If, for any reason after the foregoing action or actions shall have been commenced, It shall be
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determmed that pcssession of the Premises should remain in or be restored to Tenan~ LandlOi'd shall have the right to
commence one or more further actions as hereinbefore set forth to recover possession of the Premises Including, without
limitation. appearing for Tenant and confessing or otherwl.. eriterlng judgment for possession of the Premises as
hereinbefore set forth; and (ii1) the provisions of Section 16,02(d) are incorporatad herein by this reference lhareto.
(d) In any action or proceeding described in Section 16,Q2(b) andlor 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 conclustvely presumed 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 ail attorneys who may
appear for Tenant all errors in procedure regarding the entry of judgment or judgments by confession or otharwlse by
virtue of the warrants of attorney containad In this Lease, and all liability lharefor. Tha right to enter judgment or judgments
by confession or otherwise by virtue of the warrants of attorney contained In this Lease and to enforce all 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, rule of court or law, custom or practice to the contrary notwtthstanding.
( 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.
(ii) The benefit of all laws now made or which may hereafter be made regarding any limitation as to
the goods upon which, or the time within which, distress is to be made after the removal of goods, and Tenant further
relieves Landlord of the obligation of proving or ldenttfying such goods; it being the purpose and intent of this provisKm that
all goods of Tenant whether upon the Premises or not, shall be lIabte to distress for rent.
(iii) The right to issue a writ of replevin for the recovery of any goods sejzed under a distress for Rent
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 collect any amount
which may become due under the terms and conditions of this Lease and any right to have the same appraised. The
Prothonotary Oi' Clerk of Court is hareby authorized and empowered by Tenant at Landiord's Instance to enter a wrll 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 under Act of April 5, 1957, No 20 and all supplements and amendments lhareto. hareby
authorizing tha sale of any goods distrainad for rent at any time after seven (7) days from said distraint without any
appraisement and condemnation thereof.
(vi) The right to three (3) months and/or thirty (30) days' notice required under certain circumstances,
or any other notice required or otherwise provided by statute as a condition to the commencement of summary
proceedings or an action 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.
Sactlon 18.03: DAMAGES.
(a) If Landlord elects to terminate Tenant's right to possession under this Lease, but not to terminate this
Lease, Landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
terms and conditions as Landlord shali deem appropriate (which may be less than or exceed the balance of tha Tenm),
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
attomeys' fees) and for putting the Premises into good order and condition and repairing or remodeling or altering the
same for reletting, and any other expenses, commissions and charges paid, assumed or incurred by or on behalf of
Landlord in connection with the relettJng of the Premises (collectively the "Coale of RaIalIlnll"), and then to tha fulfillment
of the covenants of Tenant under this Lease. 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 Lease the equivalent of the amount of Rent under this Lease less the net avails of such reletting, if any, during the
same period, and the same shall be due and payable by Tenant to Landlord on the dates such Rent is due under this
Lease. Any reieUing by Landlord shall not be construed as an e1ec11on on the part of the Landiord to terminate this Lease
unless a notice of such Intention Is given by Landlord to Tenant. Notwithstanding any reletting 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
shall Tenant's obhgatlons hereunder be diminished by reason of any failure by Landlord to relet the Premises or any failure
by Landlord to collect any sums due upon such reietting. Tenant shall not be entltled 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 Tenant's right to possession,
Landlord shall have the right to immediately recover against Tenant as damages for loss of the bargain, and not as a
penalty. the excess (K any), as detenminad by LandlOi'd, of (I) Iha present value of Iha projected Rent peyable by Tenant
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
attorney's fees and interest on all sums due Landlord at the Default Rate (hereafter defined), less (it) the then present fair
market rental value of the Premises for the balance of the Term as reasonably determined by Landlord, takiilg into account
among other things, the condition of the Premises, market conditions and the period of time the Premtses may remain
vacant before Landlord is able to relet the same to a suita~e replacement tenant, and the Costs of Relettlng (as defined
above) that Landlord may Incur in order to enter Into a replacement tease'(ItBeneflt of the BargaIn Damageelt).
Notwithstanding anything to the contrary contained In this Lease, If, subsequent to the termination of this Lease and the
recovery of damages from Tenant pursuant to this subs8CUon (b), Landlord retets the Premises for an effective Rent
higher or lower than the Rent assumed for purposes of calculating the Benefit of the Bargain Damages, the Beneflt of the
Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such relattlng.
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( I ,.-}.
'(C) The "Default Rate" 'means the rate of Interest which Is three percent (3%) over the announoed prime rate
of PNC Bank, Philadelphia. Pennsylvania or any successor thereto or other bank selected by Landlord,
Section 18.04: LANDLORD'S SELF-HELP.
In addition to Landlord's rights to self.help set forth elsewhere in this lease, if Tenant at any time fails to perform
any of its obligations under thls Lease in a manner reasonably satisfactory to Landlord, Landlord shan have the right, but
not the obiigation, upon giving Tenant et I..st three (3) days pl'ior written notice of ~s election to de so (in the event of any
emergency no prior notice shall be required) to perform such obligations on behalf of and for the account of Tenant and to
take all such action to perform such obligations. In such event, Landlord's costs and expenses incurred therein shall be
paid for by Tenant as Addillonal Rent. forthwith, upon demand therefor, with in_t 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 18.05: LEGAL EXPENSES.
(a) In the event that Landlord should retain counsel andlor 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
cleclaration of rights hereunder, or should either party Intervene In any suit In which the other Is a party, to enforce or
protect its interests or rights hereunder, the prevailing party In any such suit shall be entitled to all its costs, expenses and
reasonable fees to its attomey(s) In connection therewith.
(b) In the event that a bankNptcy proceeding is filed by or against Tenant under any chapter of the
Bankruptcy Code, or Tenant makes an assignment for the benefit of creditors or commences or otherwise becomes the
subject of any insolvency, receivership or similar proceeding, Landlord shall be entitled to recover its reasonable attorneys'
fees and costs Incurred in or in connection with any such proceeding from Tenant or any trustee, custodian, receiver,
assignee or other representattve acting on Its behalf, all of which fees and expenses shall constitute, in addition to any
other sums due and owing under this Lease (I) an obligation of Tenant hereunder, and (II) a component of any cure claim
assertable by Landlord undar 11 U,S,C. S 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 Its obligations hereunder and sald failura continues for a period of thirtY (30) days after writtan notice
therecf 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 thlrtv (30) days and continues dillgenlly to pursue the curing of the same).
If Landlord shall be In default under this Lease and, if, as a consequence of such default, Tenant shall recover a money
judgment against 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 Interest 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 shell Tenant have the right to levy
execution against any property of Landlord other than Landlord's right, title 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 sal&4easeback 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 Section 2.02 of this Lease, and Landlord thereupon and without further act by either party hereto shall
be released from all liabUity and obligations hereunder derived from this Lease arising out of any act, occurrence or
omission relating 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 transfer (Including without limitation any sale-laasebeck) by Lendlord or itlI g..ntees, succesaors or
assigns. Neither Landlord's mortgagee (or its designee) nor the purchaser at a foreclosure sate shall be liable to Tenant
for the retum of Tenanrs Security Deposit unless and until landlord actually delivers the Security Deposit to such
mortgagee or purchaser or their designee.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 18,01: SUBORDINATION OF LEASE.
Tenant agrees that, except as hereinafter provided, this Lease is, and shall always be, subject and subordinate to
any lease wherein landlord is the lessee and to the lien of any or all mortgages or deeds of trust, regardless of whether
such lease, mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part of the
Shopping Center, and to any and all advances to be mede thereunder, and to the interest thereon, and all modifications,
consolidations, renewals, repiacements and extensions thereof. Such subcrdlnetion shall be effective without the
execution of any further Instrument. Tenant also agrees that any lessor, mortgagee or trustee may efect to have this
Lease prior to any lease or lien of Its mortgage or deed of trust, and In the event of such election and upon notification by
such ktssor, morigagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said lease.
mortgage or deed of trust, whether this Lease Is dated prior to or subsequent to the date of said lease, mortgage or deed
oftNSt.
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Section 18.02: TENANTS ATTORNMENT.
In the event of any foreclosure of, or the exercise of a ~r of sale under. any mortgage or deed of trust referred
to in Secllon 18.01 covering the Premi.... or in the event of the lermlnallon of any lea.. referred to In SacIIon 18.01
wherein Landlord is the lessee, Tenant, upon the purchaser or lessor's request, shall attom 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 thts Artiae 18, and in
the event Tenant falls to do so within thirty (30) 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 llabla for any action or omission of any prior landlord (including Landlord) under the Lease. subject
to any off sets, claims or defenses whk:h Tenant might have against prior landlord (inctuding landlord), bound by any Rent
which Tenant might hava paid for more than the current month to any prior landlord (including Landlord). bound by any
amendment or modification of the lease or any other agreement concerning the lease made without mortgagee's 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.
ARTICLE 19: ESTOPPEL CERTIFICATES
Section 19.01: TENANT'S AGREEMENT TO DELIVER.
From time to time within thirty (30) days after request in wriUng therefor from landlord, Tenant agrees to execute
and deliver to landlord, or to such other addressee or addressees as Landlord may designate (and Landlord and any such
addressee may rely thereon), a statement in writing in form and substance satisfactory to landlord (herein called
'Tanant'a Eatoppal CaIlIftcate"), certifying as to such matt8lS as may be raasonably raqueated by Landlord. Tenant
expressly agrees that landlord may assign its interest in the Tenant's Estoppel Certfficate to its 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 fails to provide a Tenant's Estoppel Certificate within thirty (30) 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 for, and upon the observance and performance of all of
the agreements, covenants, terms and conditions on Tenant's part to be observed and pert'ormed, Tenant shall peaceably
and quieUy hold and enjoy the Premises for the Term without hindrance or Interrupllon by Landlord or any other parson or
persons lawfully or equitably claiming by, through or under Landlord, sUbjact, nevarthaless, to the tenms and cond~lons Of
this Lease, and mortgages, leases and other matters to which this lease is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21.01: DELIVERY AFTER TERM.
Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or earlter"
termination of the Term, broom clean, free of debris, In good order, condition and state of repair and in compliance with
Secllon 14.01 (excepting Landlord's obligation under this Lease, damage by casually and ordinary wear and tear). and
shall deliver the keys to the management office of Landlord or to such other place as may be designated from time to time
by notice from Landlord to Tenant. If not sooner terminated as herein provided, this Lease shall tenminate at the end of the
Term as provided for In ArtIcIa 3 w~hout the necessity of notice from aither Landlord or Tenant to tenninate 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
shall be an unlawful detainer and all such parties shall be subjact to Immediate ouster and removal, and (a) Tenant shall
pay upcn damand to Landlord for any period whan Tenant shall hold the Premises aftar the Term has terminated or
expired, as liquidateel rent for such period, a sum equal to an Percentage Rent and Additional Rent provlcled for in this
lease plus an amount computed at the rate of double the Minimum Rent for such period, and (b) Tenant shall indemnify
and hold harmless landlord from all loss, cost, expense and liability whatsoever resulting from such hotdlng over,
including, without limiting the generality of the foregoing, any claims made by any succeeding tenant based on such
holding over.
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~ARTICLE 22: CONDEMNATION
Sactlon 22.01: ALL OF PREMISES TAKEN.
If the whole of the Premises shall be taken or condemned either permanently or temporarily for any pubtic or
quasi-public use or purpose by any competent authority 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"), this Lease shall
terminate as of the day possession shell be taken by such authority, and Tanant shell pay Rent and perform all of its other
obligations under this Lease up to that date with a proportionate refund by Landlord of any Rent as shall have been paid in
advance for a period subsequent to the date of the taking of possession.
Section 22.02: LESS THAN ALL OF PREMISES TAKEN.
,
~ less than all but more than twenty-five percent (25%) of the GLA in the Premls.. Is taken by Condemnation. or ~
(regardless of the percentage of the GLA In the Premises which is taken) the remainder of the Premises cannot be used
for the carrying on of Tenant's business, then in either event Landlord or Tenant shall each have the right to terminate this
Lease upon notice in writing to the other party within ninety (90) days afIar possession i. taken by such Condamnallon. ~
this Lease is so terminated. it shall terminate as of the day possession shall be taken by such authority, and Tenant shall
pay Rent and perform all of its obligallons undar thl. Lea.e up to thet date with a proportionata rafund by Landlord of any
Rent as may heve been paid in advance for a period subsequent to the data of the taking of pos....ion. If this Lease Is
not so terminated, it shall terminate only with respect to the parts of the Premises so taken as of the day of possession
shall be taken by such authority, and Tenant shali pay Rent up to that day with a proportionate rofund by Landlord of any
Rent as may hava been peid for a period subsequent to the date of such taking and, thareaftar, the Rent and the
applicable Break Point shell be reduced in direct proportion to the amount of GLA of the Pramiaa. taken and Landlord
agrees, at Landlord's cost and expense, as soon as reasonably possible to reetore the Premises on the land remaining to
a complete unit of similar quality and character as existed prior to such appropriation or taking (to the extent feasible);
provided that Landlord shall not be requtred to expend more on such restoration than an amount equal to the
condemnation award received by Landlord (less all expenses, costs, legal fees and court costs incurred by Landlord in
connection with such award).
Section 22.03: SHOPPING CENTER TAKEN.
If any part of the Shopping Center is taken by Condemnation so as to render, In Landlord's judgment, the
remainder unsuitable for use as an enclosed mall shopping center, Landlord shall have the right to terminate this Lease
upon notice in writing to Tenant within one hundred twenty (120) days after possession Is taken by such Condemnation. tf
Landlord so terminates this Lease, it shall terminate as of the day possession is taken by the condemning authority, and
Tenant shall pay Rent and perform all of Its other obligations under this Lease up to that date with a proportionate refund
by Landlord of any Rent as may have been paid in advance for a period subsequent to such possession.
Sactlon 22.04: OWNERSHIP OF AWARD.
As between Landlord and Tenant, all damages for any Condemnation of all or any part of Shopping Center,
including, without limitation, all damages as compensation for diminution In value of the leasehofd, reversion and fee, and
Tenant's leasehold Improvements, shall belong to the Landlord without any deduction therefrom for any present or future
estate of Tenant, and Tenant hereby assigns to Landlord atl its right. title and interest to any such award. Although all
damages in the event of any Condemnation are to belong to the Landlord, whether such damages are awarded as
compensation for diminution in value of the leasehold, reversion or fee of the Premises, or Tenanrs teasehold
improvements, Tenant shall have the right to claim and recover from the condemning authority, but not from Landlord,
such compensation as may be separately awarded or recoverable by Tenant in Tenant's own right for or on account of any
cost or expense which Tenant might Incur in removing Tenant's merchandise, furniture and fixtures, provided such
compensation does not in any way diminish the compensation otherwise available to Landlord.
ARTICLE 23: MISCELLANEOUS
Sactlon 23.01: INTERPRETATION.
(a) The captions, table of contents and index of defined terms appearing in this 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 corporation Is named as Landlord or Tenant in this Lease and executes the
same as such. or becomes Landlord or Tenant, then and In such event, the words "Landlord" or "Tensnr wherever used in
this Lease are intended to refer to all such persons or corporations, and the liability of such persons or corporations for
compliance with and performance of all the terms, covenants and provisions of this Leese shall be joint and several.
(c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other
genders and the use of the singular shallincfude the plural.
(d) The parties hereto agree that all the provisions of this Lease are to be construed as covenants and
agreements as though the words importing such covenants and agreements were used In each separate proviston hereof.
Furthermore, each covenant, agreement, obligation and other provision contained in this Lease is, and shall be deemed
and construed as a separate and independent covenant of the party bound by, undertaking or make the same, and not
dependent on any other provision of this Lease unless expressly so provided.
(e) Although the provisions of this Lease were drawn by Landlord, this Lease shall not be construed for or
against Landlord or Tenant, but this Lease shail be intarpretad in accordance wlih the general tenor of the language In an
effort to reach the intanded ro.ult.
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'Section 23.02: RELATIONSHIP OF"PARTlES.
Nothing herein contained shall be deemed or construed by the parties hereto, or by any third party, as creating the
relationship of prtncipai and agent or of partnership or of Joint venture _n the parties hereto. it being understood and
agreed that neither the method of computation of Percentage Rent, nor any other provision contained herein, nor any acts
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 obUgations 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
this Lease shall be in writing, and, shall be deemed to have been given (8) when maUed by United States registered or
certified mail, return receipt requested, pcstage prepaid end received or refused by the addresaea, or (b) when sent by
courier guarantying overnight delivery, addressed to Landlord or Tenant at the respective addresses set forth In the
Fundamental Lease Provisions andlor such other address or addresses as either party may designate by notice to the
other In accordance with this Section and received or refused by the addressee. Any notice by the Landlord may be given
on its behe~ by Agent or by an allorney for Landlord or Agent. Any notice properly sent to Tenant shall be deemed
effective whether or not a copy is sent to the address designated In the Fundamental Lease Provisions to recetve a copy of
such notice.
Section 23.04: SUCCESSORS.
This Lease and the covenants and conditions herein contained shall inure to the benefit of and be binding upon
(subject to Article 17) Landlord, Its successors and assigns, and shell be binding upcn Tenant, its heirs. successors and
assigns and shall Inure to the benefit of Tenant and only such assigns of Tenant to whom the assignment by Tenant has
bean consented to by Landlord In writing. Nothing in this Section 23.04 shell be _med to require Landlord to give any
such consent. All of Tenanrs obligallons during the Term pursuant to Section 4.05,4.06,4.07.5.01,5.02, 7,03, 8.03,
11.03 and 23.17 shall survive the expiration or earlier termination of this Lease.
SectIon 23.05: BROKER'S COMMISSION.
Tenant warrants that, except for Agent, It has dealt wtth no broker in connection with this Lease, and agrees to and
shall defend, indemnify and save Landlord hannless from all claims, actions, damages, costs and expenses and liabUity
whatsoever, including reasonable attorneys' fees, that may arise from any claim by or through Tenant for a commission,
finders or like fee in connection wtth 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 delayed or hindered in or prevented from the performance of any act
required hereunder by reason of strikes, lockouts, inability' to procure labor or materials, faNure of power, restrictive
govemmentallaws or regulations, riots, Insurrection, war (whether actual or threatened), lack of access to the Shopping
Center due to evacuation; damage or govemmental order, fire or other casualty or other reason of a similar or dissimilar
nature beyond the reasonable control of the party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act, but not Tenant's obligation to pay Rent, shaU be excused for the period of the delay
and the pariod for the performance of any such ect shaU be extended for a pariod equivalent to the period of such delay,
During Tenant's Construction Peliod the provisions of this Section 23.06 shall not operate to excuse Tenant from
completing construction of the Premises within Tenanrs Construction Period urness Tenant gives written notice of the
delaying event to Landlord within ten (to) days of the occurrence of such delaying event. Such wrlttan notice shall spacify
the nature of the delaying event and the number of days of delay ,claimed to resu~ therefrom, Tenanrs Construction
Period shall be extended for a period equivalent to the period of actual delay. After tho Rent Commencement Date tile
provisions of this Section 23.06 shall not excuse Tenant from the prompt payment of Rent and all other sums due by
Tenant under this lease and such delay shall not extend the Term. Delays or faUures to perform resulting from lack of
funds or the unavailability of a particular contractor or personnel shall not be deemed delays beyond the reasonabte control
of a party,
Section 23.07: SEVERABIUTY.
It is the intention of the parties hereto that if any provision of this lease Is capable of two constructions. one of
which would render the provision invalid and the other of which would render the provision valid, then the provision shall
have the meaning which renders jt valid. If any term or provision, or any portion thereof, of this lease, or the application
thereof to any person or circumstances shali, to any extent. be invalid or unenforce_, the remainder of this Lease, or the
application of such term or provision to the persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to
the fullest extent permitted by iaw,
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
restrictive covenants or exclusives in favor of Tenant; (il) 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 nationai chain store or any other merchant shall opan for buslneas or occupy or continue to occupy any
premises in or adjoining the Shopping Center during the Term or any part thereof or that Tenant shatl generate a certain
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'amdunl of Gross Sales or that any reimbursable amount payable by Tenant shall be any specific emount, and Tenant
hereby expressty waives all claims with respect thereto and acknowledges ~at Tenan~ is no~ rety;ng on any suc~ .warranty,
representation or agreement by Landlord either as a matter of Inducement In entering Into thiS Lease or as condition of this
Lease or as a covenant by Landlord.
(b) Deleted,
Section 23.10: APPLICABLE LAW.
The laws of the state In which Landlord's Building is located shall govern the validity, performance and
enforcement of this Lease. If either party institutes legal suit or action for enforcement of any obligation contained herein,
it Is agreed that venue for such suit or action shall be In the state in which the Premises are located.
Section 23.11: WAIVER.
(a) The waiver by Landlord of any term, covenant, agreement or condition herein contained shall not be
deemed to be a waiver of any subsequent 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 the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such Rent. No covenant, term, agreement or condttion of this lease shall be deemed to have been waived
by Landlord, unless such waiver be In writing and executed by Landlord.
(b) No waiver of any covenant, term, agreement or condition of this lease or legal right or remedy shall be
implied by the failure of Landlord to declare a forfeiture, or for any other reason. No waiver by Landlord In respect to one
or more tenants or occupants of landlord's Building or any other part of the Shopping Center shall constitute a waiver in
favor of any other tenant. landlord's consent to, or approvai of, any act by Tenant requiring LancUord'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 provision
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
to be other than on account of the earliest stipulated Rent nor shall any endorsement or statement on any check or any
letter accompanying any such check or payment as Rent or the like be deemed an accord and satisfaction, and landlord
may accept such check or payment without prejudice to landlord's rights and remedies to recover the balance of such
Rent or pursue any other right and remedy provkled for in this Lease or available at law or in equity. If Landlord shall direct
Tenant to pay Rent to a "Iockbox" or other depository whereby checks issued In payment of Rent are initially cashed or
depcsrted by a person or entity other than Landlord (albeit on Landlord's authority) than, for any and all purposas under
this Lease: (a) Landlord shall not be deemed to have accepted such payment until ninety (90) days after \he date on which
Landlord shall have actually received such funds. (b) Landlord shall be deemed to have accepted such paymant W (and
only if) within said ninety (90) day period, Landlord shall not have refunded (or attempted to refund) such peyment to
Tenant and (c) landlord shall not be bound by any endorsement or statement on any check or any letter accompanying
any check or payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction.
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 shalt be construed to place Tenant In default of Tenanrs obligation to pay Rent if and for
so long as Tenant shall timely pay the Rent required pursuant to this lease In the manner designated by Landlord.
Section 23.13: CORPORATE TENANTS.
In the event the Tenant hereunder is a corporation, the persons executing this Lease on behalf of the Tenant
hereby covenant and warrant that: the Tenant is a duly constituted corporation qualified to do business in the state in which
Landlord's Building is located; all Tenant's franchise, corporate and other lienable taxes have bean paid to date; all future
forms, repcrts. fees and other documents necessary for Tenant to comply with applicable laws will be f~ed by Tenent when
due; and such persons are duly authorized by the governing body of such corporation to execute and deliver this Lease
(including the warrant and/or power of attorney provisions contained in Section 16.02) on beha~ of the corporation.
Section 23.14: TENANT'S GUARANTOR.
Deleted.
Section 23.15: RECORDING.
This Lease shall not be recorded; however landlord shall have the right to record a short form or memorandum
thereof, at landlord's expense, at any time during the term hereof, and Tenant shall execute same.
Section 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 futflllment or non4ulfillment of any of the terms or conditions of this
lease or for any action or proceeding that may be taken by Landlord against Tenant, or by Tenant against Landlord. Any
waiver of landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect
to, and as a waiver of any liability of, Agent.
Section 23.17: HAZARDOUS MATERIAL.
(a) As used herein the term "haz.rdous mat.rllll" means any flammable, explosive, medical, human or
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, ariinlal tissues or substances, hazardous or toxic substance, material or waste (including, without limitation, asbestos and
chlorofluorocarbons) which has been, or in the future is, determined by any state, federal or local governmental authority or
any law. ordinance, statute, governmental Nie or regulation to bll cePllbla of posing a risk of Injury to health. safety or
property and/or the use, storage and/or disposal of whIch is regulated by any governmental authority, including, without
limitation all of those materials and substances designated as hazardous or toxic by the local government having
jurisdicti~n over the Premises. the U.S. Environmental Protection Agency, the Consumer Products Safety Commission, the
Food and Drug Administration or any other governmental agency now or hereafter authorized to regulate materlats and
substance. Tenant shall not cause or permit any hazardous material to be installed in the Premises as a part of Tenant's
Work or otherwise brought upon, used, kept, stored or disposed of In or about the Premises or the Shopping Center by
Tenant, its agents, emptoyees, contractors or Invttees. Notwithstanding the foregoing, Tenant may handle, store. use and
dispose of products containing small quantities of hazardous matertals (such as aerosol cans containing inaecticides, toner
for copiers, paints, varnishes and cleaning supplies) of Insignificant quantities stored in sealed containers and used in
accordance with manufacturers' requirements.
(b) tf the Premises, any equipment (including, without limitation, HVAC equipment), trade fixtures or other
mechanical apparatus therein contain any hazardous materials Installed by Tenant, its agents, employees, contractors or
invitees, Landlord, at its etacticn, shall have the right to (i) 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 its professional consultants, and landklrd shall have the right to monitor such work or (ii) perform the
removal and disposal thereof itself, In which event Tenant shall comply with all reasonable requirements Imposed by
Landlord with respect to the parformance of such work, Including without limitation closing the Premises for business and
remaining closed during the performance of such work, and Tenant shall reimburse Landlord, on demand, for the cost
incurred by Landlord in performing such removal (including Landlord's cost of professkmal consultants). .
(c) Tenant shall:
(l) Promptiy provide Landlord with copies of any document, correspondence,
report or communication, written or oral, relating to hazardous materials
at or affecting the Shopping Canter (x) to or from any regulatory bcdy. or
(y) stating a basis for any potential liability or responsibility of Tenant,
Landlord, or the Shopping Center; including all such documents,
correspondence, reports or communications prepared by or on behalf of
Tenant. In addition to the abcve, at Landlord's request, Tenant shall
proVide copies of any and all records and communications whatsoever
relating to hazardous materials at or affecting the Shopping Center.
(II) Immediately notify Landlord in the event of a suspected or confirmed
re{ease of a hazardous material or violation of environmental laws at or
affecting the Shopping Center and caused by or related to the operations
of Tenant, Its employees, contractors, agents, or any party acting on
beha~ of Tenant and, at Landlord's sole option, either promptiy remedlate
or correct such release or viol.ation to Landlord's satisfaction or reimburse
Landlord's cost of remediation (Including reasonable attorneys' and
consultants' fees) all as set forth in (b) above; and compensate landlord
and/or third parties for all resultant damage.
(III) Permit Landlord reasonable access to the Premises for the purpose of
conducting an environmental audit or testing, the cost of which shall be
borne by Landlord unless the results indicate activity prohibited by
environmental laws or hereunder.
(d) In accordance with the Occupational Safety and Health Administration Asbestos Rule (1GG5), 59 Fed.
Reg. 40964, as amended and supplemented ("OSHA Asbaatoa Rula"), Landlord hereby notifies Tenant of the presence
or possible presence of asbestos containing materials ("ACMe") and/or presumed asbestos containing materials
("PACMa") (as such terms are defined In the OSHA Asbeslos Rule) within the Premises or adjoining enclosed common
areas, ~ any. The ACMs and PACMs may take the form of pipe wrap. vinyl asbestos flooring, sprayed on or trawled on flre
proofing, acoustical plaster, Insulation, textured ceiling paint and other forms. The specific location of any ACMs or
PACMs within the Premises or adjoining Common Areas may be 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 Landiord's notification is to make Tenant, its agents. employees
and contractors aware of the presence or possible presence of ACMs and/or PACMs In the Shopping Center in order to
avoid or minimize any damage to or disturbance of such ACMs and/or PACMs during the progress of Tenant's Work
andlor Construction Work. Tenant shall obtain a signed acknowiedgment from its agents, employees and contractors
working in or about the Premises 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 durtng the
performance of Tenant's Work andlor Construction Work. At Landlord's request, Tenant shall deliver to Landlord copies
of such signed acknowledgments.
(e) Tenant shall comply with all applicable Governmental Requirements affecting the Premises, the operation
of Tenanrs business at the Premlses, and the use and removal of any substances therefrom, including, without Ilmjtation,
hazardous materials Installed by Tenant, Its agents, emptoyees, contractors or Invitees. Such compliance shall include,
inter alia; (i) the flling by Tenant of all governmentai applications and registrations for all substances used, stored,
manufactured, generated or otherwise in the Premises; (Ii) the obtaining of all licenses and permits wtth respect thereto;
(Iii) the timely filing from time to time, as required, of all reports and other matt~ required to be filed with governmental
authorities having jurisdiction; and (Iv) notifying each of its agents, emptoyees and contractors of the presence or
presumed presence of ACMs and PACMs within the Shopping Center as set forth above.
(f) Tenant shall protect, defend, indemnify and hoid Landlord harmless of, from and against all claims,
actions, liens, demands, costs, damages, punitive damages, expenses, fines and judgments (including legal costs and
attorneys fees) inculTed by reason of any actual or asserted failure of Tenant to fully comply with the provisions of this
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. S&ctior1 23.17 and/or spills or other contamination of air, soli, or water by or resulting from any hazardous materla!s
installed by Tenant, Ita agents, employees, contractors or invltees at or around the Premises or the Shopping Center or
resulting from removal thereof.
(g) Upon thirty (30) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver
to Landlord a written statement in form satisfactory to Landlord certifying (I) If true, that Tenant has not diSposed of any od,
grease, toxic, or hazardous material, at the Premises or (Ii) that any such substances used, processed or generated at th.e
Premises have been disposed of properly In accordance with all appllca~e Governmental Requirements. tf Tenant IS
unable to certify either of the above. Tenant shall so notify Landlord and give Landlord the details resulting in Tenant's
inability to so certify.
(h) Tenant shall surrender the Premises to Landlord upon the expiration or earl.. termination of this Lease
free of hazardous materials brought thereon by Tenant and those acting on Its behatf and In a condition which complies
with all Governmental Requirements, recommendations of consultants hired by Landlord, and such other reasonable
requirements as may be imposed by Landlord.
(i) This S'ection shall survive the expiration or sooner termination of this Lease.
Sactlon 23.18: FINALIZATION OF CHARGES.
Notwithstanding anything to the contrary contained in this Lease, Tenanfs failure to object to any statement,
invoice or billing rendered by Landlord within a period of one hundred twenty (120) daye after receipt thereof shall
constitute Tenant's acquiescence with respect thereto and shall render such statement, Invoice or billing a final and
binding account stated between Landlord and Tenant. Landlord and Tenant intend that the foregoing provision shall
supersede any right to audit or request back up documentation from Landlord which may otherNIse be provided by this
Lease and the foregoing provisions are not intended to grant any such right to Tenant not otherwise expressly provided in
this Lease.
Sactlon 23.19: PRIOR LEASE.
Deleted.
Sactlon 23.20: FINANCIAL INFORMATION.
Tenant shall at any time and from time to time within twenty (20) days of wrlllen request from Landlord, deliver to
Landlord such flnanciallnformation concerning Tenant, Guarantor and Tenanfs and Guarantor's business operations as
may be requested by Landlord, any mortgagee or prospective mortgagee or purchaser or prospective purchaaer.
Sactlon 23.21: SPRINKLER CHARGE.
Deleted.
Sactlon 23.22: NOTICE TO MORTGAGEE.
If the holder of any mortgage which has a lien against the Shopping Center or any part thereof forwards to Tenant
written notice of the existence of such Uen, then Tenant shall, so long as such mortgage is outstanding, be required to give
to such lienholdar the same notice and opportUnity to correct any defaull as Is required to be given to Landlord under this
Lease, but such notice of defaull may be given by Tenant to Landlord end such lienholder concurrently.
Sactlon 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.
Sactlon 23.24: CONFIDENTIALITY.
It Is agreed and understood that Tenant may ackl1CM'ledge 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 this Lease to any
tenant or other occupant in the Shopping Center or to any agent, employee, subtenant or asejgnee of such tenant or
occupant. Tenant acknowledges that any breach by Tenant of the agreements set forth in this SecIIon 23.24 shell cause
Landlord irreparabte henn. The terms and provisions of this SectIon 23.24 shall survive the termination of this Lease
(whether by lapse of ijme or otherwiae).
Sactlon 23.25: RIGHT OF FIRST REFUSAL.
As a specifically bargained for right hereunder, ~ Tenant makes an assignment for the benefrt of creditors, files or
suffers the filing against it of a petition under any chapter of the United States Bankruptcy Code, or if proceedings for
reorganization or composition with creditors under any federal or state law are instituted by or against Tenant and Tenant
or Tenant's trustee (as the case may be) subsequently attempts to assign this Lease or Tenanfs Interests in this Lease
pursuant to 11 U.S.C. 5: 365 or otherwise, Landlord shall have the right of first refusal to purchase and 888ume this Lease
and Tenant's interests thereunder (collectively "Ten.ntl. L..ehold Int.......) upon the following tenns and conditions:
a. If Tenant receives a bona fide, arm's length offer to purchase Tenant's Leasehold Interests (the "Third
Party Off.....), which Third Party Offar Tenant or Tenanfs trustee (as the caaa may be) deems acceptable, Tenant or
Tenant's trustee shall first, deliver a copy thereof to Landlord ("Landlord'a RFR Notice"). Landlord shall thareafter heve
the right to assume and acquire Tenant's Leasehold Interests described in Landlord's RFR Notice on the same terms and
conditions as set forth in the Third Party Offer.
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, b, Within thirty (30) dav' following Landlord's racalpt of Landlord's RFR NotJca, Landlord shall notify Tenant
or Tenant'8 trustee (as the case may be) In writing of Landlord's Intention to exercise the rtght of refusal to acquire
Tenant's Leasehold Interests or be deemed to have waived such right of first refusal with respect to the transaction
described In Landlord's RFR Notice. If Landlord timely exerclsas Landlord's right of first refusal, Tenant or Tenant's
trustee shall be deemed to be contractually bound to sell and assign Tenant's Leasehold Interests exclusively to Landlord
In accordance with tha tenms and conditions set forth in the Third Party Offer. If Landlord fails timely to respcnd to
Landlord's RFR Notice or dedines to exercise the right of first refusal granted hereunder in such instance, then Tenant or
Tenant's trustee (as the case may be) shall be free to sell and assign the Tenant's Leasehold Interests described in the
Landlord's RFR NoIIca to the proposed purchaser (the "Third Party Purch..er") on tho same terms and conditions set
forth in tha Third Party Offer; provided, however, that the sale and assignment of Tenant's Laasehold Interests to the Third
Party Purchaser shall be and remain subject to this right of first refusal provision, such that any future assignment of this
Lease by the Third Party Purchaser or any successor thereto, shall be and remain subject to the right of refusal herein
granted to Landlord.
c. The parties hereby spacifically acknowledge and agree that the right of first refusal granted to Landlord
herein is not Intended to operate, and shatl not be construed, as a provision that prohibits, restricts, or conditions the
assignment of this Lease wtthln the meaning of 11 U.S.C. S 365(f) or any similar statutory provision.
Sactlon 23.28: ENTIRE AGREEMENT.
(a) There are no oral agreements between the parties hereto affecting this Lease, and this Lease supersedes
and cancels any and all previous negotlaUons, arrangements, letters of intent, lease propoaais, brochures. agreements,
representations, promises, warranties and understandings between the parties hereto or displayed by Landlord to Tenant
with respect to the subject matter thereof, and none thereof shall 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 Premises, Landlord's Building and the Shopping Center. No alteration, amendment, change or addition to
this Lease shall be binding upon Landlord or Tenant unless reduced to writing, signed by them and mutually delivered
between them.
(b) Th. aubmlaalon by Landlord to Tenant of this L.... shall have no binding force or effect, shall
not conatltuto an option for 1...lng of tha Pram.... nor confer any rlghta or Impoaa any obIlgatlona upon either
party until the execution thereof by Landlord and tha dallvery of an axacutad original copy tharaof to Tanant.
(cl THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF
JUDGMENT CONTAINED IN SECTION 18.02(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:
PREIT SERVICES, LLC,
Agant for PR AL CITY LIMITED PARTNERSHIP
BY:
TENANT:
~'9~'~~
Title: -r (/(.h~
::: ~
YummyJapan-CapltaICIty-Final
August 24, 2005 \ MostlJTF
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EXHIBIT "e"
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COMPLETION CERTIFICATE
DATED AS OF
PART I
SHOPPING CENTER LEASE (the "L_e") dated as of
Parties:
PR CAPITAL CITY LIMITED PARTNERSHIP
Y J CAMP HILL FOODS. INC.
("Landlord")
("Tanant")
Premises:
Tenant Store No;
FC3
GLA of Premises:
428 &OUBre feet
Actual Opening Date:
Rent Commencement Date:
Expiration Date:
PART II
Tenant, intending legally to be bound hereby, hereby ratifies the Lease and hereby certifies and agrees with
Landlord as follows:
A. the dates and other information set forth in this Completion Certificate are true and correct; and,
B. the Rent Term commences on the Rent Commencement Date set forth In PART I hereof and ends
absolutely and without notice at 11:59 P.M. (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 Lease has not been assigned, supptemented, amended or otherwise modified unless otherwise
stated; the Lease represents the entire agreement between the partIe& as to the Premises and its lealing; there are no
breaches or other defauits by Landlord under the Lease; all condlllons of the Lease to be performed by Landlord and
necessary to the enforceability of the Lease have been saUsfIed; the Lease is In all other regards In full force and effect;
and,
D. Tenant has accepted possession of and has entered into occupancy of the Premises; the Premises has
been accepted by Tenant as being In accordance with the terms and conditions of the Lease; no Rent has been nor will be
paid or prepaid other than as provided in the Lease and there are no defenses, offsets, deductions or counterclaims
against the enforcement of the Lease by Landlord or the payment of Rent by Tenant; and,
E. the Lease Is subcrdlnate to the REA and to any and all mort_s on or deeds of trust as to the Shopping
Center subject to the non-dlsturbance provision of Section 18.02 of the lease.
PART'"
In addition to the foregoing certifteations, Tenant has delivered to Landlorcl all of the following documents relating
to work that has been performed by, through or under Tenant in or about the Premises:
A. properly executed and acknowledged affidavits (satisfactory to Landiord) from contractors engaged by
Tenant that all work in or about the Premises has been fully completed in accordance with the Finaf Plans approved by
Landlord and that each of Tenanfs contractors, as well as all subcontractors, laborers and materlalmen, has been paid In
full; and
B. properly executed and acknowtedged releases of mechanics', materialmen's and laborers' liens
(satisfactory to Landlord) with respect to the Premises from each of Tenanfs contractors and from every subcontractor
and materialman; and
C. a set of approved "as-built" drawings and specifications for the work done by Tenant in and about the
Premises, prepared, signed and sealed by Tenant's architect, together wtth a complete set of Tenant's "as.bt.lIlt" sprinkler
and other fire protection drawings and specifications prepared,. signed and sealed by Tensnfs 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 break.doWflo'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,
YummyJapan..capitaICity-Flnal
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F. electrical undat'wrnen. certlficata from an organizallon satisfactory' to Landlord.
All terms defined In any other part of the Lease are used herein as defined therein.
This COMPLETION CERTIFICATE has been executed as of the date first above written.
(COrporate Seal)
TENANT:
YJ CAMP HILL FOOOS,INC,
By:
Title:
Attaet:
TItle:
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EXHIBIT "E"
FAST FOOD CLUSTER TENANT EXHIBIT
Thl8 FAST FOOD CLUSTER TENANT EXHIBIT (the "FFC Exhibit") is annexed to and made a part of the
Shopping Center Lea.. (the "L...a") by and between PR CAPITAL CITY LIMITED PARTNERSHIP, as Landlord. and YJ
CAMP HILL FOODS. INC., aa Tenant fOf those Premises designated currently by Landlord as Tenant Store Number FC3
(the "Premia..") in Capital City Mall and is executed of even date with the said Leesa.
In the event a conflict arises between the provisions of this FFC Exhibit and any other part of the Lease, the
provistons of this FFC exhibit shall modify and supersede the conflicting provisions of such other part of the Lease to the
extent necessary to eliminate such confltct but not further. All terms which are defined in any other part of the Lease shaJl
have the same meaning when used herein.
ARTICLE 1: THE FOOD COURT AREA
Section 1.01: THE FOOD COURT AREA.
The "Food Court Area'" (sometimes referred to in this Lease as the "Fast Food Cluster"') means and shall be the
area specifically designed for small restaurant operations situated in the Landlord's Building, incloding, without limitation
the individual premises, as well as any seating area and the maintenance areas exclusively serving the Food Court Area.
Section 1.02: FOOD COURT SEATING AREA.
The "Food Court Seating Area" means and shall be the portion of the Common Areas which Is made available by
Landlord for seating purposes and shan be for the non-exclusive use by customers and patrons of the Food Court Area.
Landlord shall furnish and install equipment, floor covering, lighting fixtures, decoratiVe and permanent fixtures, ceiling,
tables. chairs, accessories and other property in the Food Court Seating Area. Landlord shall be the sole owner of said
fixtures. equipment and property, and shall have the right to make changes from time to time In the size, shape or location
or both, of the Food Court Seating Area and in the number, type and style of any or all aspects of the facllities, equipment
and other property therein.
Section 1.03: CHANGES BY LANDLORD,
As between Landlord and Tenan~ Landlord shall at all times heve the right and privilege of determining the nature
and extent of the Food Court Area and of making such changes, rearrangements, additions, or reductions therein and
thereto from time to time which In its opinion are deemed to be desirabte and for the best Interest of a significant number
of the persons using the food Court Area or which are made, pursuant to Section 1.05 of this Lease, 81 a result of any
federal, state or local, environmental or otller law, rula. regulallon, guideline, judgment or order. Landlord shall not,
however, change materially the dimensions of the Prem\&&s.
ARTICLE 2: USE
SectIon 2.01: USE.
Tenant shall use the Premises solely for the preparation. saJe and delivery of food to the public for "carry..out" or
for consumption in the Food Court Seating Area. Tenant agrees to seU amy those food Items specifically enumerated in
Section (n) of the Fundamental Leasa Provisions (those food lIems herein_ sometimes referred to as the "Menu") and
to maintain the highest standards in quality, pcrtlons of sarvingo. and preparallon of such food Items. Tenant agrees to
offer for sale each of the enumerated food Items on the Menu and any failure to sell any of the items on the Menu or any
substitulion for or addlllon to such Menu wlihout L8ndlord's spec/fk: written approval shall be deemed an Event of Default
pursuant \0 Section 16.01 of this Lease; and, in addlllon to any other r1gh1S or remedies pursuant to this Leese, Landlord
shall specificaliy have the right to tenmlnate this Lease W Tenant violates this provision.
Section 2.02: DISPOSABLE PRODUCTS.
For the purpcse of serving food and bevereges to the public, Tenant agrees to use only dispcsable paper or other
equaily degradable goods and utensils, including. but not i1mlled to, cups, wrap malerlals, p18tas, trays, boats, strawo,
bags, napkins, spoons, for1<s, knives, stir sticks and the like (coIlectlvely the "DIa__lae"). Landlord shall have the right
to develOp a uniform design for all such Disposables as may be required in the operation of the Food Court Area. All
Dispcsables shall bear the name and/or logo of Tenant, or tile unWonm design developed by Landlord, W any, Tenant
agrees, in any event, to use only Disposables of the type, size, material end color reaaonably approved by Landlord.
Tenant shail not be required to purchasa such Disposables from Landlord, but Land\ord may, for the convenience of both
parties, develop a local source of supply. Tenant shall at ail times have the right to develop its own source of supply for
such Disposables, provided only that the Disposables meet the requirements stated herein.
Section 2.03: EMPLOYEE DRESS AND CONDUCT.
Employees shall at all times be required to present a clean and \tYeI1-groomed appearance and shall wear
uniforms, the color and style of which are to be subject to Landlord's reasonable approval. Tenant may make such
arrangement with Employees as It deems appropriate regarding the purchase and maintenance of standard uniforms.
However. Tenant shall require its standard uniform to be wom by all Employees at at! times while on duty In the Premises.
L.andlord may, at any time, difect Tenant to require any EmplO)lHS not 10 attired to immedBtety conform to the
requirements or leeve the Premises. Notwithstanding any provisions of tIIis L.... to the contrary. Tenant sheil heve the
right to use such staff unWonms as are used In malority of stores operating under the same Trade Name as Tenant.
YummyJapan-CapitaIClty-Final
August 24, 2005 \ MostlJTF
39
() 0
ARTICLE 3; FOOD COURT CAM SUM & FOOD COURT CAM CHARGE
Section 3.01: FOOD COURT CAM SUM.
As a tenant of the Food Court Area, Tenant agrees to pay and shall pay to Landlord. commencing on the Rent
Commencement Date and each and every month and as Additional Rent thereafter throughout the Term. Tenant's share,
as hereinafter set forth, of the "Food Court CAM Sum". The term "Food Court CAM Sum" means and shall be all sums
incurred in a manner deemed by Landlord to be reasonabJe and appropriate and for the best interests of the Shopping
Center In connection with the operation and maintenance of the Food Court Seating Area (as the same is redlK*1,
expanded or otherwise altered from time to time) including, without Iimlta~on, the following: (a) the cost of operallng,
maintaining or repairing any HVAC equipment specifically installed to serve the Fast Food Seating Area; (b) the cost of all
insurance specif'ICaUy required for the operation of the Fast Food Seating Area (including, without limitation, insurance
against fire and other casualties, bodily Injury. personal injury, property damage, product liability, s;go Insurance and any
other insurance required to be 'Carried by Landlord foe the Fast Food Seating Area; (c) the cost of maintenance, repair
andlor replacement of interior landscaping, decorating, lighting, lighting systems, electrlcal systems, plumbing systems,
HVAC System and any other systems serving the Fast Food Seating Area; (d) the cost of trash. rubbish and garbage
removal service; (e) cost of sanitary control; (f) the cost of maintenance, repair and/or replacement of furniture and
fi><lures; (g) tha cost of all supplies and equipment necessary proparly to clean, operate or meintaln the Fast Food Seating
Area; (h) the cost of all peraonnei required by Landlord satisfactorlly to supervise, implement. maintain or operate the Fast
Food Seating Area in a high standard of cleanliness and efficiency; (I) the cost of any security personnel that may be
required by Landlord specificelly for the Fast Food Seating Area; m amorttzation of the furniture. fl><\Ures and equipment of
the Fast Food Seating Area; (k) the cost of any other item Of' personnel deemed by Landlord necessary to operate or
maintain the Fast Food Seating Area in a first class manner; and (I) Landtord's supervisory charge in an amount equal to
fifteen percent (15%) of \he total aggregate cost of operating end maintaining the Fast Food Sea~ng Area, including,
without limitation, those things listed hereinabove. Landlord may have heretofore elected to spread, and may hereafter
elact to spread. the amount of certain items of the Food Court CAM Sum over such period of years as Landlord shali
determine by amortlZing them over such periods Instead of Including such amounts entirely in the year in which expended
or incurred, in which event, the annual amortfzatlon 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
hereof.
Section 3.02: FOOD COURT CAM CHARGE.
Tenant's share of the Food Court CAM Sum (the "Food Court CAM Chllrg<O") shell per Yeer be equal to three
percent (3%) of Tensnfs monthty Gross Sales. Tenant understands and agrees that the CAM Sum set forth in ~ of
this Lease does not Include the Food Court CAM Sum and Tenenrs obllgallon to pay the Food Court CAM Charge shall in
no way reduce Tenanrs obliga~on to pay Tenant's CAM Charge as set forth in ~ of this Lease.
Sactlon 3.03: PAYMENT OF FOOD COURT CAM CHARGE.
(a) Tanant shell pay 10 Landiord, as Addl~onal Rent. Tenant's Food Court CAM Charge. Tenant shall pay its
Food Court CAM Charge within twenty (20) days following lhe end of each calendar month and include Tenant's Monthly
Report (as defined In SectIon 4.06(a) along with the payment.
(b) Deleted.
(c) Deleted.
(d) Tenant acl<nowIedges and agrees that Tenanrs Food Court CAM Charge is in addition to not only
Tenanrs CAM Cherges but also Tenanrs Utility Charges pursuent to AlIlliILJ! of this Leaaa, Tenanrs Tax Charges
pursuant to ~ of this Lease and all of the other charges set forth, without limitation, in e-.1 of this Lease.
IN WITNESS WHEREOF, Landlord and Tananl have duly executed this FAST FOOD CLUSTER TENANT
EXHIBIT as of even date wIIh the Lease.
LANDLORD:
BY:
TENANT-
(CORPORATE SEAL)
:~:C~OD0~
Title: ' f./'l.M oC.-#'./ ,-Ji
AIl..I:
Tille:
YummyJepan-C8l>IialC1ty-Flnal
August 24, 2005 \ MostlJTF
40
717 737 0607
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06-' C-2006
STATEMENT,
Dale.
Acc:aunt.
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PR CAPITAL CITY LIMITED PARTNERSHIP
PO BOX 12408
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
)
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
)
\
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
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)
)
)
)
)
Defendant.
CIVIL ACTION - LAW
No. 06-5090
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. Zubrow
PA ID No" 43523
Moira Cain-Mannix
Pa. J.D. No. 81131
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
Defendant. )
)
)
CIVIL DIVISION
No. 06-5090
AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT
AND EXECUTION THEREON. NOTICE OF DEFENDANT'S RIGHTS
I, Moira Cain-Mannix, being duly sworn according to law, hereby certify that:
1. I served upon Y J Camp Hill Foods, Inc., Defendant in the within action, an
original Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of Defendant's
Rights by Hand Delivery on the 11 th day of October, 2006. A true and correct copy of said
Notice is attached hereto as Exhibit A; and
2. Attached hereto as Exhibit B is the original Proof of Service executed by Donald
L. Smith, providing proof of service of the Notice Under Rule 2958.1 of Judgment and
Execution Thereon, Notice of Defendant's Rights on Y J Camp Hill Foods, Inc.
-
~~
Moira Cain-Mannix
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Attorney for Plaintiff, PR Capital
City Limited Partnership
Sworn to and subscribed
before me this -1+- day of
October, 2006.
~J b.~Il~
Notary Public
My Commission Expires:
C,"Aj\10NWEALTH OF I'C:,.
Notarial Seal
Laurie B. Miller, NO~1ry Public
City of Pittsburgh, Allegheny Couniy
My Commission Expires Jan. 28, 20lS .
Member. Pennsylvania ~,sSnCi8hY' of
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC. )
)
Defendant. )
)
)
)
)
CML DNISION
No. 06-5090
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: Y J CAMP HILL FOODS, INe.
A judgment in the amount of$6,268.00 has been entered against you and in favor of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper allegedly signed by you. The sheriff may take your money or
other property to pay the judgment at any time after thirty (30) days after the date on which this
notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property
from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE
JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR
RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VB 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
September iL, 2006
1J1h~f1~~ 7'
Stephen S. Zubrow
Pa. I.D. No. 43523
Moira Cain-Mannix
Pa. LD. No. 81131
MARCUS & SHAPlRA, LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Attorney for Plaintiffs, PR Capital City
Limited Partnership
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAP IT AL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC. )
)
Derendant. )
)
)
)
)
CIVIL DIVISION
No. 06-5090
PROOF OF SERVICE
Date: October Ii, 2006
Place: Yummy Japan
Capital City Mall
3506 Capital City Mall Drive
Camp Hill, P A 17011
Documents Served: Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights
Served on: ~ r tK LJ {;t
Print Name
by HAVlJ D
Manner of Service
I, J)(") Il A-,.D L. Sm rfh
, hereby declare under penalty of peJjury under the laws of
the United States of America that the foregoing information contained in the Proof of Service is true
and correct.
Executed on IO/II/oee
Date
~c7--/ /:?e:-
Signature of Server
~"'lIl-l}) L. S"" .th
Name of Server
Exhibit B
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Address 0 Server
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PA 0011
Jl1--.73?X-~::jS-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Affidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendant's Rights was served upon the following by United States mail, first class service,
postage prepaid, this ~day of October, 2006:
YJ Camp Hill Foods, Inc.
FZ Management Co.
94-08 68th Avenue
Forest Hills, NY 11375
Yummy Japan
Capital City Mall
3506 Capital City Mall Drive
Camp Hill, P A 17011
~
Moira CaID-Manni~
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Douglas C. Lovelace, Jr., Esquire
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, P A 17013
(717) 385-1866
PR CAPITAL CITY LIMITED
PARTNERSHIP
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff
v.
: CIVIL ACTION - IN LA W
Y J CAMP HILL FOODS, INC.
: NO. 06-5090
Defendant
DEFENDANT'S PETITION TO STRIKE OR OPEN
CONFESSED JUDGMENT
Defendant, Y J Camp Hill Foods, Inc., by its undersigned counsel, respectfully petitions
this Court to strike or open the confessed judgment, and in support states as follows:
1. Plaintiff filed a complaint with the prothonotary on August 30, 2006 pursuant to Pa.
R.C.P. No. 2951(b) and (c) to enter judgment by confession against defendant for unpaid rent
under a commercial lease containing a warrant of attorney. A true and correct copy of the
complaint which attaches the lease as its Exhibit "1" is attached hereto as Exhibit "A."
2. Plaintiff served upon Defendant original notice under Pa. R.C.P. No. 2958.1 of
judgment and execution and of Defendant's rights on October 11,2006. A true and correct copy
of said notice is attached hereto as Exhibit "B." Attached hereto as Exhibit "C" is a true and
correct copy of proof of service executed by Donald L. Smith.
3. The terms of the warrant of attorney upon which Plaintiff relies require the occurrence
of a default in the payment of rent before judgment may be entered, and the occurrence of such
default cannot be ascertained from the lease itself.
4. The computation of the amount Plaintiff claims is due is not sufficiently specific for
determination of its accuracy. Plaintiff leaves it completely ambiguous as to what type of rent it
alleges Defendant has failed to pay.
5. Defendant avers that the amount of money Plaintiff claims Defendant owes Plaintiff is
not rent, as provided for by the terms of the lease.
6. Defendant further avers that it is current in its payment of all "Minimum Rent" and
"Percentage Rene as dermed and required by the lease.
7. Defendant avers it owes no "Additional Rent" to Plaintiff -- the only other form of
rent provided for by the lease.
8. The amount of money Plaintiff claims Defendant owes Plaintiff derives from the
amount Plaintiff erroneously paid on an invoice erroneously submitted by Potteiger-Rain tree,
Inc. to Plaintiff, Plaintiff's erroneous payment to Waste Management of Central P A for refuse
removal, a fifteen percent fee added by Plaintiff: and attorney fees.
9. Defendant avers it owed no money to Potteiger-Raintree, Inc. and that Plaintiff should
not have paid Potteiger-Rain tree, Inc. mistakenly on Defendant's behalf. Potteiger-Raintree, Inc.
should have submitted its invoice to Stairs Project Management, Inc., the general contractor.
10. Defendant owed no money to Waste Management of Central P A. Waste
Management of Central P A should have submitted its invoice to Stairs Project Management, Inc.
11. Under the provisions of "Section 2.05: Mechanic's Liens" of the lease, Plaintiff may
consider as "Additional Rent" amounts paid by the Plaintiff only as a result of lien's placed on
the Plaintiff's property or claims filed against the Plaintiff, as a result of money owed by
Defendant to a contractor, subcontractor, mechanic, laborer, or materialman.
2
12. In its complaint, Plaintiff makes no averments that Defendant owed Potteiger-
Raintree, Inc. nor Waste Management of Central PA any money.
13. In its complaint, Plaintiff makes no averments that any lien or encumbrance has been
placed on Plaintiff's property, nor that any claim has been filed against Plaintiff by any party, as
a result of money owed by Defendant.
14. Under the provisions of the lease, the money Plaintiff claims Defendant owes cannot
be considered rent of any type provided for by the terms of the lease.
15. Since the amount Plaintiff claims Defendant owes Plaintiff cannot be considered rent
of any type provided for by the terms of the lease, Defendant is not in default of the terms of the
lease under Section 16.01(a), as claimed by Plaintiff.
16. Since Defendant has not defaulted on the terms of the lease, Section 16.01(b) does
not provide Plaintiff a ground for entry of judgment against Defendant.
17. Accordingly, the entry of judgment upon Plaintiff's Complaint in Confession of
Judgment for Money was improper.
WHEREFORE, Defendant, Y J Camp Hill Foods, Inc., respectfully requests that this
honorable Court enter a rule upon plaintiff, PR Capital City Limited Partnership, to show cause
why the judgment by confession of August 30, 2006, should not be stricken or opened.
Date: November -g, 2006
R~~4'
Douglas C. Lovelace, Jr.
Attorney for Defendant
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, P A 17013
(717) 385-1866
3
EXHIBIT A
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, P.ENNSYL V AKIA
PR CAPITAL CIT'{ LIMITED PAR TNERSHIP ~ )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC. )
)
Defendant. )
)
)
)
)
)
)
)
)
)
)'
)
)
)
)
)
)
)
)
)
)
EXHIBIT A
CIVIL DIVISION
No. Df. ..,s'ot'{:l Cl:.,L~
COMPLAINT IN CONFESSION OF
JUDGMENT FOR j"ONEY
Filed on Behalf Ofthl~ Plaintiff,
PR Capital City Limi too Partnership
Counsel of Record for this Party:
Stephen S. Zubrow
Pa" I.D. No. 43523
Moira Cain~Mannix
PA ID No. 81131
MARCUS & SHAPIRA LLP
Finn No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL V ~,"IA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
Defendant. )
)
)
)
CIVIL DIVISION
No-
COMPLAINT IN CONFESSION OF JUDGMENT FOR MONEY
1 . Plaintiff, PR Capital City Limited Partnership, is a Pennsylvania limitt~
partnership, with an address of c/o PREIT Services, LLC, 200 South Broad Street, TI'.ird Floor,
Philadelphia, PA 19102. PR Capital City Limited Partnership is the owner of the CaItital City
Mall in Camp Hill, Pennsylvania.
2. Defendant Y J Camp Hill Foods, Inc. is a Pennsylvania corporation" Defendant's
last known address is c/o FZ Management Co., 94-.08 68th Avenue, Forest Hills, NY 11375.
3" The original instrument evidencing the obligation on which judgment is herein
confessed, or a photostatic copy or like reproduction showing the signatures of Defenclant which
is a true and correct reproduction of the original, is attached hereto and marked as Exl:.ibit 1,
and is incorporated herein by reference. The instrument is a Lease dated September 7, 2005 (the
"Lease"). Defendant is the Tenant under the Lease, and as noted above, .Plaintiff is thE~ Landlord
under the Lease. This confession for money judgment is warranted by Section 16.02 (b) of the
Lease.
4. Plaintiff uv~rs 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 rcal property at Capital City Mall, Camp Hill, Pennsylvania, was made a.s a comnlercial
transaction.
5" Judgment has not been entered on the Lease in this or any other jurisdiction.
6" Section 16,01(a) of the Lease provides that the following shall be deemed an
"Event of Default": "the failure by the Tenant to pay Minimum Rent and/or PercentB,ge Rent
and/or Additional Rent or any installment or year-end adjustment thereof if such failure
continues for ten (10) days after written notice thereofby 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, June 21 ~ 2006, and August 10,2006, and more than ten da.ys have passed
after Defendant was sent notice of its failure to pay without making the missing payments.
8" The itemization of the amount presently due under the Lease and withc1ut waiver
of future damages is as follows:
Amount due from 2/1/06 through 8/1/06 (Ex. 2)
$ 5,950.96
Attorneys' fees for enforcement and collection (5%)
provided under ~ 16.02 of the Lease
$ 297.54
Filing Fee
$ 19.50
TOTAL
$ 6,268.00
T\VHEREFORE, Plain~iffj as authorized by the v:a;.-ant of attorney contained in the Lease,
demands a money judgment against Defendant in the total sum of$6,268.00 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'1Jf, 2006
~P-
- . ~ I~~ - ~
Stephen S. Zubrow
Moira Cain~Mannix
MARCUS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh~ P A 15219
(412) 471~3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
IN THE COURT OF CO)\il\rO~ PLEAS
OF CUl\1:BERLAND COUNTY, PE~:NS\1.JVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC" , )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No.
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 from 2/1/06 through 8/1/06
$ 5,950.96
Attorneys' fees for enforcement and collection (5%)
provided under g 16.02 of the Lease
$ 297.54
Filing Fee
$ 19 "50
TOTAL
$ 6,268.00
Dated: August~, 2006
~!hu' '
Attorney for D;fend~t ~
Y 1 (\lmp Hill FlUIds, Il,\;.
UNSWORN VERIFJCATI.ON UNDER 18 PA. C.S. & 4904
TI,e undersigned hereby states subject to the penalties of 18 Pa_ C .S. * 4904 J.cgarding
unsworn falsification to authorities as follows: I am a duly authorized tepresentative~ of the
Plaintiff identified in the attached Complaint in C()nfcsslon of Judgment for Money and that
averments of fact contained in such Complaint arc true and correct to the best of my knowledge,
infonnation and belief
PREIT SERVICES; LLC,
Agent fbr PR CAPIT "',CTTY LIMITED PARTNERSHIP
Dated; Y 2" _, 2006
By:
1dJ{,an
ounsel and Executive Vice President
~.",--.
YummyJapan.~ICtty.Fln31
AUQust 24. 2005 MostIJT~
o
LeASE AGReEMENT
BY AND BI;lWEEN
0,'
, ,
J.' ....,
Q _ JLl . 0 5 tll>
PR CAPITAL CITY LIMITED PARTNERSHIP... ....ndlo.-d
and
Y J CAMP HILL FOODS, INC., as Tenant
TRADe NAME: YUMMY JApAN
EXHIBIT 1
(i)
(j)
~
FUNDAMENTAL LEASE PROVISIONS
This Lease Is executed and made as of ~'os(" 7, ~OO$, by and betw'een PR CAPITAL em' LIMITED
PARTNERSHIP, a Pennsytvanla limited partn8rl1hlp (hereIn called 'lan~IQ'd.) and VJ CAMP HIl.l FOO[)S, INC., a
New YQrk corporation (herein oal~d "Tenant"), LandlOrd and Tenant having the following notice addresses:
Landlord:
Cop)' to:
PR CAPITAL CIlY LIMITED PARTNE~SHIP
c/o PRE:/T Services, LLC
200 South Broad Street
The eettevue. Third Floor
Philadelphia, PA 19102
Attn: General Counsel
FIR CAPITAL CITY L1MITEO PARTNERSHIP
Man~ment Office
3506 Capital City Mall Drive
Camp Hili. PA 17011
Attn: Goneral Manager
Tenant:
Copy to:
Y J Camp Hin Foods, Inc.
FZ Mana&omEll1t Co.
94.oa 68 Avenue
Forest Hills, NY 11375
Cenain Fundamental Laase Provisions ere presented in this SectiOI'l and represent the agreement of the parties hereto,
subject to definition and olaboratlon In the respectIve referenced Section!! and elseW'here ;n t~js Lease:
(a)
(b)
TlM13nt's TrtId., Namt\:
Yummy Japan
(See Sec. 7,01)
Rent Term: One Hundred Twenty (120) months commencing on the Rent Comm~ernent Date. The Rent
Term expires on lhe last day of tM One Hundred Twentieth (120ffl) month fOllowing the Rent Commencement
Date (tl1e "Expiration Date"). (See ~iec. 3.01)
(C)
(d)
(e)
(1)
tenant StOta Number:
FC3
(See e;)(h, A)
GLA of Premises:
428 square feel
(See ~;ec. 1.04)
(See ~ec. 2.03)
(See !:ec. 2.03)
(See ~E1C. ;?,03)
Design Drawings Submission Date: Avgust 30, 2005
Tonant.s "Construction CommenQftrnent Oate":
& "Construction Period": Sixty (60) days
Oetob~r 1, 2005
(g, Mlnl",um Rent:
time Ptlrfod
Rent Commencement Dale
thrOUgh tl1e 48th month
F rOm the 4gtll month
lhro~h the end of the Term
Annual Amount
MonthlY Amount
$49.99a.96
$4,166,58
$54,99S.00
$4,583.17
(See S'~c. 4,03)
(h) Perc.ntage Rent:
Time Period
Bf8:ak P2!oS
The "Pereentaa."
Rent Commencement Date
through the 48'" n10nth
From the 49"' month
tnrQugh the end of the Term
RequIred Opening Date:
$624.987.00
Eight Percenl (6%)
$687,475.00
Eight Pereent (8%)
(See SE1C. 4,04)
(S~ Sec. 4,02)
(See Sec. 2,02)
Deoember " 2005
SecurIty DepQslt:
$8,00000
(k) Marketing Service Charge: $1.50 Per square foot of the GLA of the Premi$es per Yesr (SOe Sec. 9.01)
Minimum AdvertisIng Charge: $1.50 per RQlIare foot of the GLA of the Premises per Year (See Se::. 9.02)
(J) Certain Other Charges Payable by T8flant:
Tax Ch.vge
Servfc:ea Charges
R.fuge "'andUng Charge
CAM Charge
Spoclal Assesament
(See Sel;, 5.01)
(See Sel:. 6.01)
(See Set:. 6.03)
(See See:. 8.03)
(See S$c. 9.01)
YUn'lmyJaPi1ln--CapltaIClly_FI"al
AugU$1 24. 2005 \ MostlJTF
2
,0)
FUNDAMENTAL LEASE PROVISIONS (CONT'D)
(m) "Ag8m" .nd To Whom Rent Payable:
PR Capital City Associates LP
P.O. Box: 644052
Pittsburgh, PA 15264~052
(n) U..; For the sole purpose of r"'A asla of thoM item!;\ listed on the menu attached l'M,retl:l as exhIbit O. Any
ehanges to T enlnt's mel1u must ba pr&-3pprovAd by landlord In writing.
(Soct Bee. 7.01)
YummVJapan-Capit8ICIty-Flnal
Auoust 24, 2005 \ Most/JTF
:3
,",""
I
LEASE AGREEMENT
ARTICLE 1 ~ INTRODUCTORY PROVISIONS
Seetlo" 1,01: RSf"ERENCES AND CONFLICTS.
Referenees appe4iring in the Fundamental Lease Provisions are to designate SOme of the other place!; In this
Lease where additIOnal provi~lons applicable to the particular I=undar'tlantal Lease Provisions appear. e;~c:I1 reierence in
this LeasE! to olIny of the Fundamental Lease Provisions shall be construed to incorporate aU of the terms pruvided for
under such provisions, and such provision shall be raad in conjunction with all other !)rovisions of this Lease applicable
thereto. If thare i", tiny conflict between any of the Fundamental Lease Provisions and any otNJr provisions of tt,ls Lease,
the lalter shall control. The listing on tl1e Fundamental Lelil8e Provisions of monetary charges payable by Tensn; shall not
be construed to be ~n exhaustive list of all charges or the amount thereof payable by Tenant under this Lease.
Section 1.02: GENERAl OEANITIONS.
(a) The term "Shopping Cent."" means the I<lnd snown 01"1 Exhibit "Aft attached I'lal"eto an:! by this
reference Ineorporated hereIn. as tl'la $~me may hereafter be reduced. expandad Or othelWise altered from time t,) time.
(b) The term "Mall Premls.s" m@ans the Shopping CMt8l' excll,ldfl1g however thtl Maiers' Premls~!; and the-
term "Mall Preml""In<::ludes ~he Sam0l!l~ reduced, expanded Of otherwise altered from time to tIme.
(e) The term "landlord'. BulldlnQ" means the bUlldin98, strlJctUteS 3l'Id other Improl/ements ~hown In
general on Exhibit "A.i' and lneh..n.ies the "eneloMd Mall" (hereinafter defined), bl,lt oxcludea the Majors' :Iremises
(hereinafter defined), Landlord's auilding Is part of the Mall Premises. The term "Landlord'. Building" lr'\cludes the samf:l
as reduCed, expanded or otherwise altered from time to time.
(d) The term "Majors' Pr.mls.... (or "M~ors Premlsel!l") means the premisEI$ shown on Exhibit "A~, page 1
by '1,100 term. or by the word "Major" Or name of the lYoF;lpoctlve or actual principal occupant tt1ereof (thA ''U.aJo,." or.a
"MaJor"), and the term "Majors' Premia.." (or "M." ptwml...n includes the same as redUotK!, e.xpanded or utherwlse
altered from rime to time, The larm "M-.Jor" (or "MBJDr!.I") Includ$a any replacement for or other substitute of tnn primary
occupant 0( a Majors Premi5e~ ~!3 well as. in t~ case of an expansion of tria Shopping Center, the primary ocllupant of
the premilloes equal to Or e:<oeedlng, in terms of GLA, the GLA of anyone (1) of the MaJOI"$' Premises shown 011 Exhibit
"AM (ev~n thol,Jgh those premi!i8S may not be Qriglnally Ghown thereon).. References In this l.ease to a Major (lr Majol'!.
shall include any SuCh replacement, $ubsliture or additional Major ar'1r:1 its Pfemtses a~ included Within the terms "Maio",'
Premlsos. and ~M-.lorrs Premises".
(e) ThEIl term "Common Aren" mean$ all areas, fl!l(:ilities and improvements operated or providecl at or In
conneQtion with t!'le ShoppIng Center from time to time for the nQn-exdusive oommon use of ~ndlord. the tenants of the
Mall Premises and the Ma;Or$. and shall ir"tclude but not be limited to tl'le "Enclosed MaJl" (hereinafter defined) plilrking
areas, roadwa~. ramps, traffic control!>, trl,lok ways. loading and lJnloa(ling docks, de"v~ areas, sidewalks, s :airways,
escalators and elevators (if lilny), sel'\{ioe corrtdors. exit CorridON;, seating areas. buffer areas, screenIng 'acJlities,
merchandIse piokl,lp stations (excluding mose of MaJOrs, if any), publle rest rooms and eOmfort stationa, retalnh)Q walls.
IQndscsped 3r08$. open space erees, utIlity systems, sanitary and other waste handling systems, holding tsnlts, force
mains. (ire detection and/or sUPPfe5sion systems, life safety systems, s4!lcl,lrity system$, community rooms, drainage
s)'$tem!l, and IIghti~ ~ystems.. ihe term "Common Areas" inc;ludos the same 3S reduQed, expanded or otMf:lrw;,,~ alterl!ld
from time to time.
(f) The term "Enclosed MaW' means the enclosed climate controlled pedestrian mall located in Lmdlord's
Building, and the term ''enerosed Mall" includes the same as reduced, expanded or oth~l'Wise altered from time to time..
(9) Tne term "Pramls"" means the space demised by this Lease '!ind sltualed in Landlord's Bulldir!jJ which
space is In tM approximatE! locatIOn marked on l;)(hlblt "A", however, the PremlslllS ;s limited vertically to tho ceiling
height aDove the structural floor set forth In l.andlOrd's "Store Oecltl" Crlterta" (defined in Section 2.03(b) hAreof;.. In the
evenr the Premises i$ 8 corner locatIon, the Premises shall exorl,l(le any rights with res~ct to tl'le exterlOl' ~ide w:;,lI ~ the
PremisG$.
(h) The term "fast Food Cluster" means Ihe area or areas now or in the future speCifICally desigrated by
Landlord tot' small restaurant or o!l'ler food MrvIce operations sItuated In Landlord's Buitding or elsewtler@l in Ine Mall
~r8mise~, induding the Individual premise5 and any seatin~ areas IOe<ed therein and the maintenance and house <eeplng
areB~ primarily serving the Fast Food Clust$r, The term "Fast Food Clu8ter" includes the same as reduced, expanded or
otl'lerwlsCl altered from time to time,
(i) The term "GU" means with respect 10 the Premises and all ather leasable areas. Landlorcl's best
estimate Of the number of SQuare feet of area 01'1 all floors in Landlord's Building for the exclusive use by the teroants or
other oeeupants thereof and theIr ClJstome,.s, clients or other invitees including without limitation mezzanines and
b~lcon\es if used for the sale of goods and/or services (but excluding all Other af8a$ and s!)aee defined herein as ~~rt of
Common Areas). GLA of the Premj~es shall be me3svred from the exterior face of exterIor walls anc;f the exterior f~ of
serv:ice corrid~r w.slts: tha line along the front of the Premises whefe the PremIses abvts the J;nclossd Mati as sh~\Nri on
ExhIbit A (whICh hne IS oommonly known as the "Leue line"), Of the Lease line of any POp-out5 referred to in .Sectlon
1,04,. a~ the case m~y be, and t!'le C8nt~r line of $ny wall Tenant shares with oth9r tM$nts or occupants of the l:H\(llord'&
~ulldlng or :I M..IoJore Prlilmlso". ~Ith rel$j;lect t,o alllea.sJ;lble areas otner than the PremiSes, GLA $1'/.aI1 be determined by
virtue Of the def;nltlon contained In the lease '11 question. No doduotion from GLA shall be made for colUMns stairs
elevatOrs, Qr any inrerio~ lXln~t~ction or e~Ulpment. From rlrYIf:l to tlms durIng the Term, LMdford may give Tenani "ot~
of the .GLA of Landlords BuUa,ng, at a gIven time for a glv(!n periOd of time, as &0011 GL.A may be revised be~use of
~eductrOI1S, expansIons or otl1er af!f;'!ration$ of Landlord's BUilding or as such GLA may be adjusted pursuant 10 pro',iSions
f!'llthe leases of other tenants or occl,Jpants, Tn!;! GLA of thf:l Premi$es and of Landlord's Building Shall b(! utlli~ed to
:a culate tl'le ,...~LA Fractlol1 (dafll1ed in Section 1.02(J) and to mske any other cah;:ulatJons rAl'll.Jirec:1 to determ\I'- tho<
T ummyJapan........pltaIClty-Flnal ~'1 19 '"
Al,JguBt ~4, 2005 \ MolJtlJTF"
4
')
charges'to Tenant.
(j) The term "GLA Fraction" means a fraction, the numerator of wl'liCl'l shall be th8 GLA of the PrEmises and
the danominator of whleh shall be the oecupled GLA of Lllmc;llord's Building, subject, however, to the provisions of SOction
4,08,
(kl The tfll'l'li "Junior Major(s) Premts.s" means either of the fOllOWIng. (not h$f'eln identifIed as 01 oUlerwlsEI
hereunder constitl,lting a "MaJor"): (I) any so callBd "out parcel" or any premises that does not t1ave direct cust,)mer store
frontage and/or customer entry to the EnClosed Mall or (II) any premises which contalnfi in excess of 15,000 $ql..are feet of
GLA In the Shopping Center.
(I) The term .L..... a$ u!;jed in thiS document (the "Lease") shall mean the Fundamental Lease Provisions,
the Lea$(! Agreement. the EXhib!t9 3tt.acned hereto and Addendum, if any.
SBctu,n 1.03: EXHIBITS.
The following plans and special provisions art! at1achf)d hereto as (i;xhibits, are Incorporaled herein and hereby
made 8 part of this Lease.
EXHIBIT A
Plan of the Shopping Center' as presently constituted whieh pI~11 also shows the approximstt! 'Q(l$tion of
the Premises.
EXHIBIT B
eXHIBIT C
Deleted _
Completion Certificate.
EXHIBIT 0
EXHIBIT e
Tenant's Menu.
Fast Food Cluster T anant Exhibit.
Suction 1.04: TENANT'S STOREFRONT"
Tenant may. subject to receipt of ~ll required Q(lvemmental approval$ ljInd Landlord's prior written apprcval, "pop-
out" all or a portion of the storefront. Should Tenant install a pop"<)ut storefront, the GLA of thePremi$B~, shall De
increased to Inelude the square foot area of tne PGp..out(s). TM Minimum RCll'It and the 6reak Point ~hall be 81:cordingly
Increased, to Include the area of such pop.out(s).
Seetlon 1.05; CHANGES TO SHOPPING CENTER,
As betINMn Landlord and Tenant. Landlord may at any time and from tin'lE! to time ellmln~te land from, or add to or
substitute for I~nd of, the Shopping Canter or any ~art thereof. or eliri'lil1lQ1te. add or sub,tiMe any improvements, or
change, ar'lJarge or com:aflt to 8 change in the shape, si:1;e, loca1/on, number, height, or extent of tMe improvements to the
Shol'Pinli Center or any part thereof, including, without limitatIon adding additional levels to any elC.i~ting buildl~ lherein.
In exercising its rights hereunder. landlord agrees to use re~!Sonabla efforts not to materially advers ~y affect
accas~ to, or visIbIlity of, the Premlaas.
Section 1.06: CR.OSS EAS(i;MENT AGREeMENT.
Tenant unders~l"ld5 and agrees with Landlord that, notwithstanding anything to the contrary eont8inEld In this
LBl;lse, the Shopping Cenlar includIng, without limitation, the Common Areas and the Premises are and shall bEl subJect,
SUbordinate and otherwis@ junior to any orOss easement agreement (as they may be or may have been c::reated. amended.
supPlemented or otherwise modlfled from time 10 time) bCltween landlord and each occupant ()f the M~j1)r5 'Jr JuniOr
Major!: who are partiEt$ thereto (suc:l1 cro~t ~lSemMt agreement being herein QOIlectl'tfJly called tha "REA~).
ARTICLE 2: PREMISES AND TENANrS WORK
Section 2.01; LEAS! OF PREMISES.
Landlord, In eonslderatlon of the .R~nt. (defined In S&ction 4.01) to be paid and the cO\l8NInts to be perfCl'l'Iied by
Tenant, does hereby demise and lease unto Tenant, and Tenant hereby lea!;e!!; and takes from Landlord, for the Term, at
the rental, and upon tn. covenant$. conditions and other terms herein set fort"', the commercial space referred to herein
as the Premi$es situated or to be situated in Landlord's Building, as the ca$e may be.
S.ction 2.02: $eCURllY DEPOSIT.
The sum referred to as the security deposit in the Fundamental Lease Provi$ions IS herein called the "l;':urlty
OepOslt". .The Security Deposit Will be h~d by Landlord, without interet I accruing in favor qf Tenant. a$ security for
T anant's faithful perlonnance of all of the terms and conditions of this loase for and during the Term, Provided T "flant Js
.not in default under this Lease. Landlord shall retUrn the Security Deposit to Tenant at the expiratiOn of the Tern'. In no
Instance shall the amO\,lnt of the Security DAposlt be considered clImeasu(t!!t Qf liquidated or otl1er dan'tagM. All or ;my part
of the Secl,lrlty OePDsit may be applied by L~ndJ(lI'd In total 0( partial cure by LanClIord of any breach or other df~'ault of
Tenant. The application of all or Sr'ly part of the Security Deposit to any obligation or defal.llt of lenant under thl!: Lease
shall not deprive Landlord {If any other rights or remedies I..andlord may "ave nor sh~1I such application by landlord
con&tlt~te a waIVer or as~umptlon by Landlord. If all or sny part of ttle Security DepOsit Is appl/$d by LandlO(,j to an
ob~fgatl~n. or default of Tena~t hereunder. Landlord $hall halle th~ right to call upon Tenant to restore the Secut'ity Deposit
to Its o"9.nal amount by giVIng notice to Tenant and Tenant shan immediately restore the Security DePOSJt to its )riglnal
amount by payment thereof to I..sndlord. Tenant shan not have the right to ~f1 uPOfl Landlord to apply all or any pari of th,.
YlJrnrnYJ8P.n~ltsrCIty-Firl3'
Augu~ 24. ~005 \ M08t1JTF 5
.
Securitv Depo~it to Cura any breach or 'other def$uJt or to fulfill any obligation of Tenant but such use shall be s:)lely in the
discretiOn Of Landlord. It Is dlstlnetly und$l"StoOd and agreed thaI should Landlord transfer Its Interest in IM;$ ~ea$e. tt1e
Security O4:l!)OSit may be turned over by Landlord to landlorcS'$ giant_ or other transferee, and upor'\ G111Y such :urnOVM of
the Security Oeposit. Tenant t'lereby releasfls Landlord herein named of any and allliabllit'J Qr other obligation ,,-ith respect
to the Security Deposit. its ap"'leation and return, and Tenant agrees to look $oIely to such grantee or other tra'!:if@I'$e, It
Is further understood and ag~ed that these provisions shall also apply to $ubseQuent grantees and other transf''''ees, The
Security Deposit shall be dHmad the sole property of L~ndlord.
........:
hction 2.Q3: PREPARATION OF PLANS AND TENANi'S WORK,
(a) Tensnt has had the opportunity to examinl!l the Ptemises and hereby agreC!l$ to aecept e.ame in the "as It"
condItion In whicl1 the Pr8ml~es lllll;i$t on the date Landlord turns Over the key to th~ Pr'emi$.~ to Tenant or Tenant's
designee. Ten~nt further aCknowledges that Landlord has not m:cllie any represontatlons as to the present or 'uture
condition of the Premises or WMt it$m!;l, if any, the present OCcupant of the Premises Is required to or may tea Ie therein.
Landlord shall not be reQuired to send Tenant any formal notice tendating pOssession of t~ Prernls6t nor shalll.andlord
be liable In the event the existing oecUl'ant of the Premises falls to timely vacate the same, except that ary delay In
occupency shall extend tile RequITed Opening Date specified herein for a periOd equal to the number of days b~~tween the
Construction Commeneament Date specified herein and the date such former tenant vacates; provided that If physical
posse,sion of the Premises is not available by a d<;ite which is one year from the COr'l$truction Commefleeme"t Date, at
LandlQrd's optkm, this lease sh1;!lI be null and vOid and neither party shall have any liability hereundl1lr to the other,
Prior to deliverinl;j possession of the Premises 10 Ttlriant, LandlQrd shall perform the following w"k in the
Premises (hereinafter "landlord's Work"):
1, Provide and install demising wall liotuds only to roof daok. O.,molition necessary to demise,
2. Provide conduit only from Landlord's distribution aree. to the Premises sized to 217(48011.
3. Provide domestic and sanitary line stubMlns to the Pr~mises,
4. Pull telephone conduit to the Premises.
5, F'rovido and Install ..w stub-in from propane line at location deslgnat&d by lMdlord.
6. F'rovide and Install ~prinkler sysrem to inc:rude main lateral grid and !oprll'lkler heads (uP).
(b) Tenant shall perform ell work required 10 be performed by Tenant 10 My and completely renodel the
Premises and to lJdept the same for Tenant's lIse, as s\J(;h us~ Is speclfled and limited by the Fundamental Lease
Provisions, all such work baing referred to herlllil'l as "Tenant's Work", Tenant .,1'1:;.11 design th~ Premises in QI:cOI"dance
with Landlord's current $tore "nd storefront design criteria booklet and otherwise comply wkh all insurance and Qther
requirements therein (I'terein call~d "Store DesIgn Criteria"), a copy of which Tenant acknowledge$ It has received.
Tenant shaflln$(ft,Jct its architect or deSigner to prepare Tel1$l'1t's plans for the PramiSe$ in compliance with the tlmerlcans
wIth DIS;llt)ilities Act, the Clean Air Act and all othet appli~ble laws, n.J1.~, eoda~. and regulatIons. In ttle 6Vllnt of any
inconsistencies between the text of this Lease and the Store DesIgn CrltAri~, the Jatter shall prevail. Entry by Tt'mant to the
Premi~BS prior to the Rent Commencemenl Oate shall be subject to all of the provisions of rhia Les$e, except t 1e duly to
pay Rent but Tenlilnt shan pay'O(' all utilities and servlCe$ supplied to It during auc::h period. Tenant 3grees to:) perform
T~nant's Work in accordance With the provIsions of thi~ LEl:iilse and such manner SO 85 not to cau&ta any interference with
the vse. occupancy Of enjoyment 01 the remainder of the Shopping Center, or any part thereof. T er'lar'1t shall promptly
GitlU5e to be repaired all items which may hewe been damaged f,l.S a result of tMe performance of Tenant's Wor~ promptly
upon the ocCtlIT&noa of such damage and shall at all tImes keep all portions 0' the Shopp(ng Center (Qthel' than the
Premi$es) free from and unobstructed by debris, equipment or materials r@lated to Tenant's Work.
Tenant's Work shall be commel'10ed on or before October 1,2005 (the "Construction Commencement ['ate") and
shall be completed on or before December 1, 2005 (the "Required Opening Date"), Tenant shall include the following
WOrk to the entire Premises:
1, Insti!lll new walllreatments and finishes.
2. Installl'1ew floor tre.atrnents and finishes.
3. Inst.ell new ceUlng treatments and frnishes.
4. !nstall new lighting systems.
5. Install new electrical systems.
6. Install new plumbing system.
7. Installl'1eW HVAC system Ineluding new rooftop unit.
8, Inst8l1 new sprinlder and fire protectJon systems.
9, Install new stO/'$frQnt and finishes with display wlndow(s).
10. Install new Internally illuminated storefront, .
, 1. Inl;itall new atore dIsplays ~nd Interior fixturlng and furnishings,
. (c) On or befOre the DeSIgn Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(here,n ~lleQ th~ ."Tenant Coordinator") fo~ the Landlord's aJ:lproval design drawings (herein called the nDeaign
Drawings ) S~C~"Q each aspect of Tenant s Work Md speclflOiillly including a colored rondenng of the proposed
storefront and signing. sample materlala to be U$ed In tne PremIses and sign, photograph of fixtures to be usee and the
InterIOr hayout of the Premises, The Oesign Drawings Shl;'lll be prepared In aOCOrd8nce with the StQfe Design Criteria
~fter reoeiot of thep Oe~i~11 Or3wlnS;'" l.andlord shall return to the Tenant the Design Drawings. either Ha~'PrQved":
~ppro\ll;ld as noted or d's~pproved; If they are marked "dl&approved", Landlord shall also note the reasons of such
dlsapP1"Qval. ~"or Oef~re thIrty ~30) day~ after receipt of the "diS8pprOVed~ Design Drawings, TfMlant shall r9Subnit to the
Ter'1ant Coordinator reVised DeSign DraWIngs meeting I..andlord't ObjectloM. L.andlord Shall thereafter return the sam@ to
Tt'"~I'lI, marked as set forth above and Tenant sl'1all Within an additional thirty (SO) day period resubmit rev;setl tlrawlngs
until t~ 5~me have .boen ..al'''rove~ 01:9 noted" or .....ppr~ocl'. 01'1 Qr before thirty (;:;0) Clays an~r receipt of "approved as
not~ or approved DeSIgn Dr~w'nga Te~,nl sh~" ~lJbmit to the Tenant Coordinator fer landlord's approval, working
drawmgs .and Specl1i~tlons (hereIn called Final Plans") for architectural, electrfcal, mechanical, sprinkler and ~IUml)ing
work within the PremISes and all other Tenant Wort< proposed by Tenant and shown on the Design Drawlngs and 'e ' d
by the Stor@ Design Criteria, The Final Plans shall be prepared In ac:cordanee with the Oesigr\ Drawings a . m qu~e d
"apprOved as noted" or "approved" by l.andlord. The Final Plans Ghaflll'lcorpO/Olte anv r~vision$ reqUired by l:ndl:;d ~o
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1he Destgn Drawings including those forming the basIS of Landlord's approving the same "as noted". After rec,~lpt of the
Final Plans, LandlO~d shall return to Tenant the Final Pllns, marl(ed either "approved", "approved as !1oted" or
-disapproved". If they are merked "di~pproved", Landlord sMll5tate the reasons for such. disapproval and Tetlant shall,
on or before ten (10) days after receipt of such "dIsapproved" Final Plans, correct any deflciencles stated by Lardlord and
resubmit within ten (10) daY' corrected Final Plans to Landlord until same,. Eire ac:c::epted ~$ "appl'g"e~ as noted" or
"approved". If I.liIf'\dlord ~oceP~ Ten8nt's Final Plans "approved as note,o , len~nt ~d no~ resu~mlt the 83me to
Landlord'$ Tel"lal"lt Coordinator, but Tenant shall revise such Final Plans to In~orporatB L~ndlord s required ~hEnges and
Tonant covenants that the Tenant Work in the Premises shell be oonlltl'ucte(j,r'l $uoh fashIon as to eom~y WIth the notes
disclosed on such "approved as noted" Final Plans. If rt;!!n~nt doe, not ClOl1"EIOt sueI'! deficiency and rellllbmit any
disapproved Final Plans within the rsqulred lime periOd, $ueh failure shall consmute an E.vent of Default. Tenant's Work
shall be performed only In accordaneo with the Final Plans, IiIS marlc:ed "approved lilS noted" or "approved" by landlorrl.
Tel1(jmt's faMure to submit Its DeSign Drawings on or before the Oesign Drawings Submission Date or Tenant's failurQ to
commence Tenant's Work on or before the Construction Commencement Date shell be an evenl of Default pursuant to
SeotiOr'l Hl.01 l,mle'$ such fa"ure results from Landlord's Inability 10 deliver possession at tile Premises to Temmt on the
Construction Commenoament Date.
(d) T~9@ther with Tenant's submission of Its Design Drawil"lgs and together with any other plans sutlmitted by
Tenant relating to any ottlfilr WQrk in the Premises which Tenant desires or is required to perform, Tenant shalll)8Y Agent
on each oeeasion the sum of F=ive Hundred and 00/100 Dollars (5500.00) to defray the cost of reviewin!:l Tenan':'s Oesign
Drawings and Final Plans.
(e) On or before the Construction Commencement Date, Tenant shall de~o$it with Landlord certficates Of
In$url;lnce as reQuired In Miele 11 and the Store Oesign Criteria, as well 3S a tnJe copy of Tenant's building permit and
Tenant shall commence TEtr'llilnfs Wort( and prosecute It dlllgenUy and continuously to completion including installation of
fixtures and equipment in the Premises. Prior to tne commencement of any Tenant Work Of the delivery of any naterlal to
the Premises by any eontractor, subcontractor or materialman ("'sr.in called ..Contracto....), 'tenant shall dell'fer to the
Tenant Coordinator 8 signed. acknowledged and sealed waiVer of liens (herein called ~Conlractors Waiver of L1Eins") from
eaen Contractor In the form ,peclfied by Landlord, The Contraclor's Waiver of Liens provides, $mong other tt~ngs, that
the Conttactot waives any al1d all lien rights that It may have against Landlord's estate, right, title and inter,!)st In the
Shopping Centet and any part thereof including, without limitation. Landlord's Building and 1M Mall Premises, "^ Ithln sixty
(60) days after Tenant's opening the Premises for business, Tenant shall deliver to Landlord an el<ecuted C:>mpletlon
Certificate in the form attached hereto as Exhibit Me".
(f) Landlord shall have the rig"'. to post and keep posted in the Premises notlca of nOI'l-respon~ibitity. or
sueh other notices as Landlord may deem to be proper for the protection of the Landlord or lal'l(llord's estate, right, title
and Interest in the Shopping Center and any part thereof. Tenant shall before the commencement of any w,)rI< which
might result in any claim, tien or other charge give to the l.andlorcl written notice (Jf Its intention to commence SilIl(I work in
sufficient time to enable Landlord to ~Ol!:t. file and record such notices, The provisions of this S$t:tiQn 2.03 shall :lIpply with
re$p~ to 1enant's Work or any other work performed in or about the Premises at any time Cllll'ing the Term here;,f.
Section 2.04: OPENING Of= PREMISES.
(a) Tenant agrees 10 o~n its business to the public In the Premises no later than the Required Op~,ing Date
specified in the Fundamental Leasa Provl.sions.
(b) Tenant shall eomplete, or cause to bo t:omplc:IIad, Tenant's Work ~nd the Installation 01 fixtures,
equipment and merchandise no later than the Required Opening Date. If Tenant falls to open Its business to thfl public In
the Premises on or before the R8i:lulred Opening Date, Tenant shall pay to Landlord, ;~ ~dditlon 10 Minimum Rent and
Additional Rent, an amount equal to One HundrEl(l and 00/100 (1100.00) DOllars for each day Tenant's businesll remains
not open In me Premises fn)m lilnd after the ReqUired OpenIng Date (counllng the said ~eqUlred Opening Date a$ the first
such day). Any and all sums and other charges payable by Tenant to Lal'ldlord purSuant to the Immediately preceding
sentence shall be paid on deman~ to offset administrative costs and 8)(penSas ineutn;ld by Landlord as a result of Tenant's
late ope~i~9 and shall In n~ W$Y abrogate, or,relieve Tenant from any of Ten~nt's obHgatlons und~ this L.ease, Including
without limitation the obligation to open Its buslneS$ in the Premises, and Landlord shall have all other rights and remedies
Under this lease, at law Md ;n equity. arising from Tenant's failure to open pursuant to ,hls Section 2.04(b).
SKtlon 2.05: MECHANIC'S LIENS,
, ($) Tenant will not permit to be crEll1lted or to remain undischarged any lien, encumbrance or othur char~
arlslnQ oul of any worl< done or materIals or supplies furnished by any contractor, $ul)oontTactor, mechanic, "borer or
materialman or any mortgage, conditional 58le. securlly agreement or chalt$1 mortgage which might be or Deco 'ria 8 lien
or en~umb~ance or, o~er el'latge (collectively a "Charge") ag"inst or upon the Shopping Center or any par: t"ll~reof,
including without IImltahon the Mall Premi$es and Landlord's au~dlng or tne income therefrom, Tenant wfll not Euffer any
other ~jjltt~r or th!~ ~ereby the aSlate, nght, tltllll and interest of Lal"ldlord in the Shopping Center or :c.ny pa 1 thereof
Inch,ldll'lg WIthout hmltttlon the Mall Prl!lmises and Landlord's Building mi\ilht be Impaired. If any claim or lien or notiee of
CI.tltrTI or It?n on account of an alleged debt of Tenant or anr notleE! of contract or Charge by a pet$on enga~ed ty Tenant
or i e~ant ~ contrac!or .to work on the PremIses shl;lll be. fll~ against or upon tne Shopping Center or any pall th8reof
Includln!ij Without f1mltliltlon, the LaMlord's Building or the Mall Premises, Tenant shall within twenty (20) day$ after demand
fro~ _L~ndlord. oaus~ the sarn~ to be dls~harged of ftlCOrd by paymMt. deposit. bond. order of a court of eum etent
JurIsdiction Of' o!herwlse, If Ten~mt sMail fall to caUM such claim or lien or notice of claim or lien or other ChtJl'g/to be
dlschsr~ Wltt-UM the. period afo~said. then, In addition to any other right or remedy It mliiY have, Landlord may but shall
n~t b6 Obligated to. dlSeharSje the same by payment, deposit Or by bonding prOCeedings, and in any suCh event Landlord
s aIr be entllled. it Landlord so elects, to compel the prosecution of an action for the foreclosure of the same b the
ctalr'l'l~rit and to pay the amount of any judgmelllln favor of mfl elaimant with interest costs and 8nO~nces AnI' er:ount
so paid Oy I,,~ndlord and all Interest, costs and expenses InCluding attorney$' fees' incurrBd by Landi d '/ .
~~e~:~h. ~h~1l cont;tit~ta Addi~ional Rt'nt payablo by Tena~1 under thj$ Lea~", ~nd 3hall be paid by Tena~t to \~~~:~tl~~
, othlnQ h$(ern cOl"llalned s"~1I obllgat~ Tenant to payor discharge any Charge oreated by Landlord.
(b) Tenant ~hall pay promptly all persons furnlshln lb.
Tenant's contractor In or about the Premi~es. No work which L~n;'o~~ or malt tar rIalS wlth M$pect to any Work by ien~nt or
Yl.lltlrnyJapan-CapltaIClly-Flnal perm $ enant to do snall be deemed to b~ for th$
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immediate use and benefit of l.andlord sO 1hat no mechank;s' or othet elall"r'l, li$n or other Ch$l'ge $/'laJl be allo~d against
the es~tft. right, title or intl!N't\!st of Landlord by reason of any COf1se.nt gjve~ by Landlord to lena"t to do wor~ lr or about
the PrGmi&e$ or provide materials therefor. Nothing contained herein shall Imply any consent or agreement on t"le pan of
Landlord to $ubjeet Landlord's estate to liability under any mechanics' or other lien law.
ARTICLE 3: TERM
Section 3.01: TERM OF THIS Ll:A$E.
The term of this Lease (somotlm9!l herein called the "T4lInn") means the period of the '1nterim Tenn" I h",rfit~er
defined) follOMd Immediately by the period of the "Rent Term" (\'lereirnlfter defined), ~e "Interim Temtn ",'e8ns the
period commenc:1ng on me date. of this Lea&8 and ending on the data immediately preceding the R~t Comm':noement
Date. The "Rent Term" means the period commencing on the Rent Commencement 08te ~"d ending on the I;xplratlon
Oete. as extended pursuant to Seetion 21.02 hereof Qr bV agreement executed by L~ndlord and Tenant or sooner
terminated as provided herein, as the case may btl, Ouring the Int~m term.. If tenant IS not open for busl~lss In the
F'remi$8$, lilll of the provisions of this l.ease shall apply exoept that Tenent'liI obhgMlon to pay Rent shall abate, (Ither than
for l,Itllitie~ e1nd trash charges.
Section 3.02: YEARS.
The term "Year" means eaoh sl,IcC$$$iv$ twelve (12) month period 1rom January 1 through D~,mber 31
oerorrlng during U''Ie Tenn. "Ius, If applicable any Partial Year. "Partial Vear" meant; thel'4lriod between al'\d including tl1e
~errt Commencement Date. If that date Is not January 1, and the next succeeding Oec:ember 31 and. it applicable, if the
term ends Qn other than a December 31. the period beginning on the I.,t Jl',Inl,l(l(y 1 of the ierm and ending on the last
day of the Term,
ARTICLE 4: RENT
Section 4.01: TENAHT"S AGREEMENT TO PAY RENT.
ien.ant hereby agrees to pay for the right of use and occupancy of the Premises dl,Jring the Rent Term, at the
times and In the manner herein ptOvided. the Minimum Rent. pereontage REll'\t and AdditiQ~1 ~ent. A& used in tt.ts Laass,
the term "R8Ilt" means, collectIVely. the MinimuM Rent, F'ercentage Rent and Additional Rent.
Seetlon 4.02.: RENT COMMENCEMENT DATE.
As usel;l in th~ Lease, the term "Rent Commef1Clem.nt Oat." shall mean tne eaflier of:
(a)
Oate"); or
the date on which Tenant Initially open$ its business to the publi~ in thePrBmises (the "Actual O~.ning
(b)
\he ealendsr date Bet forth as th~ Required Ogening Date In the Fundamental Le~se ProvIsions.
Sec:rtio" 4.03: MINIMUM RENT.
(a) The base rent Tenant shall pay Landlord for each Year shall be the amoun1 set forth In the f:uMamental
Lease Provisions as the Minimum Rent per Yesr and shall be payable in tll\l@lvl'l (12} equal monthly installments, In
advance, on the first day of aacl'a calendar month.
(b) The base rent Tenan1 shall pay Landlord for any Partial Year sh311 be that amount set for:h in the
Fw,damental l.eliJse Provisions as tOO Minimum Rel'lt per Year times the Partial Year Fraction. A$ Uged In thIS Laa~e,
"PartNliI YNlr fnlCtlon" me.ana lit fractlont the numerator of whlcl'1 is the number of days in 1M applioable Partial Year. and
the denominator of whiCh Is three hundred Sixty-five (365). The base rent payable for a Partial Year shall be paid in equal
monthly Installmen(~, in advance. on the first day of each calendar month, except that it the Rent Commencement Date Is
!'lot the flrst day o'f a calendar month, then that portion of such base rent which is attributable to !he days in that fit st pal'\ial
~Iendar month shall be paid. In ad\latltl!;), on the Rent Commencement Date,
(c) The base rent payal:lle by Tenant pursuant to Section 4,03(a) or (b), whichever is applicable, ig called the
"Minimum Rent" in this Lease, Minimum Rent shall be prorated for partial months, if any. If t~ Minimum Rent il\eta~se$
during the Rent Term, for the purpose of determining the elate on which Mlnir'nvm Rent Incraa~e(5) become effective a
partial month shall be disregarded. .
(d) If. at any time during the Term thEt Shopping C8flter shall be 8xpanded by the additiQr'\ of ona Ot more
Majors' Premises or t/'Ie Shopping Center is expanded by mor~ than 50,000 square feet of GlA, Tenant agr~s that the
Minimum .~ent Pl'Ovid~ In me. Fundamental Lease Provisions shall b$ Increased by ten percent (10%) upon the d ~te $8ch
sucl1 additional Malora Premises fll't;t opens for business or the opening of the $ltp$nded Shopping Ct!lJ'lter. _andlord
agrees that the Break Point shall billikewise incr@l'I$ed by ten percent (10%),
S.etlon 4.04: PERCENTAGE RENT_
(a) In addition to Minimum Rent, Tenanr shall pay Landlord percentago tent (herein called "P..r'~.ntag8
R.~t.,) as determi~ed by thia Article 4. The Pel'C$l'Itage Rent for each Year shall be an amount equal to the -P8rCl~nt....
~whlch Is $Ell forth In t!W FUMamemal Lease PrOViSiOns) multiplied by the amOUtit of Gross S*es made during $l.ch Year
In excess of the applicable Break Point set forth 11'1 the Fundamental Lease ProvisIons, the Percentage Rent l'or each
Partial Year shall ~ an amount equ31 to the Pefcentage multiplied by the amount of Grou Sales made during sue: '1 Partlaf
Year In excess 01 the Parnal Vaal' Breek PoInt The term "P.rtlal Year B....... PoInt- ahall mean an amount equ,~1 to the
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August 24. 2005 \ MostJJTF 8
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Break Point multiplied by the PaMlal Year Fraction f(lr the spplieable Partial Year aM the Break Point and Partial Year
Break Point are collect/valy ref$N'l!td to as the "Break Point..
(b) .11'1 ~aoh Year or Partial Year, Tenant shall be obl~ted to pay Percentage Rant beginnil'l9 with the fir$t
month in which the aggregate amount of Gross Sales made tor such Year Of Partial Year exceeds the 6re$1c, F'~nt.
Tenant shall pay Percentage Rent (in addition to Minimum Rent and Additional Rent) for each and every SlJ,.l(:~I"Sl
month during the remainder Qf :such Yelilf or P.artlal Year on all a<ldltlon.al GrQ$~ Sales. Each P$yment of Percenhlge Rent
shall be ~id by Tenant to Landlon;l witho\,lt demsnd and otherwise liI5 set forth in this Article 4 together with Tenant's
monthly statement of Gross Sales provided fOr in SeQtion 4.06, :sullied to the annual adjustment provided for in such
Section 4.06.
(C) In the event any 6reak Point is subject to adjustment during the term of this Lease. and the date on whfch
any such lildjustrnent is to occur (hereafter referred to as the "Rental Adjustment Oat.") is other than the fil'$t day at a
Year, the Break Point for the Year In which the Rental Adju'tl'l'lMt Oato ~hall fall ,hall be the sum of: (1) the ini1ial Break
Point muKiplied by 1!I fraction the numerator of which $hall be thl;! number of dSY$ln the period commencing on t!...) first day
of the Year in which the Rental Adjustment Dat~ $I'lell fall and ending 01'1 ttle day imm~i8tely prior to tte Rental
Adjustment Date and the denominator of Which ,hall be three hundred sixty-five (365), plus (2) the latter Brtlak Point
multiplied by a fractlonr the numerator of whlOI'1 shall be the number of days in the pertod commencing on t~le Rental
Adjustment Oate and ending on \halast d$Y of the Year in whioh the Rental Adjustment Date shall fall and the der omlnatOl'
of which shall be three hundred slxty.f!vQ (M5),
Sectton 4.05: GROSS SALes"
(a) The term "Gress Salu" means the t()tal gross receipts and receivables of all merchandise, "'ar~$ Md
other goods sold or leased and the actoal charges for all servloes performed, busIness conduoted arid ac:c:ommodattons
rendered by Tenant and by any subtenant, licensee, concessionaire and other occupant In. at. ftom, Or I;1ri9ing 'lu( of the
use of the Premises, whether wholesale or relail, whether for cash or <:fedlt, or othecw\se, and induding the ~ lue of 811
COnsideration other than money received for any of the foregoing, without reserve or deduction for inability or failure to
coll~c;t, indudlng but not limited to sales, leases and services:
(I) where the orders therefor Origirl8te in, at. from or arising out of the use o( the ~remiSE'$, where
delivery Or perfOflTl8rn:;e is made from rhe Premises regardleSs of the place of bookkeeping for, ~aymel'lt of, or collection of
any account: or
(ii) mada or periormed by mail. telephone, IntMI'1Bt. webslte or $imKar means and orders r&:18ived or
filled or delivered In. at or from the Premises; or
(Iil) mada or perlormed by means of t~h!l~MnIC, l't'IechaniCal Or other vending means or dsv ces in or
10r the Premises; or
(Iv) WhiCh Tenant, and any subtenant, licensee. conc:easionaire and other occupant, in the nc:rmal and
oustomary COUf'Sa of itS business, would or does credit or attribute to its operations at the Premlaas 01" any part thereof.
Any deposit 8Qcepted and ,QtalMd by Teflant shall be Included In Gross Sale'. each installment or credit sale
shall be treated as a sale for tha fl.lll ~ in the month during which sueh sale Is made. irrespective of whethar or when
Tenant receives payment therefor. No franchise, value a<lded tax, c:apital stock tax, tax based upon lS$et!3 or net worth or
gross receipt tax, anc;l no income or similar tax baSad on income or proflts shall be deducted fl'om GrOlli5 Sales.
(b) Only the following shall be el(cluded from Gross Salas;
(i) any elCchange of merchandise between stores of Tenant when such e)(ohange is made :wlely for
fhe convenient opEltatlon of Tl)nant's business and 1$ not 10r the purpose of consummatffl9 a $ale made in. al or from the
Premises:
(Ii) returns to supplIers, shippers or manufacturers;
(Hi) C8sh or credit refunds to customers on Iransactlon otherwise included In Gross Sales:
(Iv) sales of fixtures. machinery and equipment. which are not stock for ute or trade, after UIH th.reQf
in the conduct of Tenant's business:
(v) amounts separately stated In the sale& receipt and collected from customers whieh :ilIrf!' paid by
Tenant to any government for any sal~s or e'icise tax ImpOSed Dy law at the poInt of sale.
Section 4_06: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT',
(a)' Tenant shall fuml~t'\ to Landlord Wittlin twenty (20) days after the end of aaeh calendar l'I'1onth dlJring tl'te
Term a cOmplete statement (the "Monthly Report"), certlf1ed by Tenant (or a respCll'l$il)le financial officer thereof If TeM,..t
is a corporation), settIng f~rth (i) the amount of Gross Sales during such month, (ii) lI'1e aggregate amount of Gro" Sales
during such Year (or Partial Year, as the case may be), inclvding such month, (iii) the amount, If any, by wI1 ch such
aggregate amount of Gross Sales exceeds 11'\$ Break POil"ll, ~fld (iv) the amount of Percentage Rent previous!) paid by
'tenant to Un~lord for such Year (or Partial Year. 3& the case may bAl. The Monthly RepOft shall ~ in such fotrTl and
$ty1e and contaIn such details and breakdown as Landlord may reasonatlly require.
(b} Tenant Will also furnish tQ l.andlord within sixty (eO) days aft8r the end of each Year a complete slalement
(thl!l "Y..rly Report-) certlfled by the Tenant, showlnQ in reasonahle det$lI the amounl of Gross Sales durIng $r..ch Year
and t.he amOtJn~ paid to landlord pursuanl to Section 4,04(b) for such Year. The Yearly Report shall bl) iIc(:Omp.tnlod by
!he !;1Jgned opl,?lOn of th~ ~Bon certifying the Yearly Report spec:/ftcaJly stating Ii'1st such person has read the did Mien of
Gross Sat.. contlilfne<1ln Ihls Lease. that such per.ion has examined th& Yearly Repon Of Gross Sales of suc'h Year
that such ~son's examinatlon included such tests of Tenant's books and ree<lrds as such person <:onsiderecl nE~ '
under the OIrCUmt;t~ncest and that the Yearly Reoort accurately represents the Gross Salas of such Year. ry
. ~c) An sdJ\.l$trnent shell be made with the furni3hing of each Yearly RepOrt wittl respect to Percenta Rent as
~tlows't If Te~ant shall have paid 10 landlord an amount gteatet' than Tenant i$ required to pay as MinjmUIY\~ent and
eroen age "e~t. under the term~ of Sec:tions 4,03 and 4.04(a), Tenant shall receive a credit m sen'
p.1iI)'ml!ll"lts of Minimum Rent next b$coml.,g due to Landlord; or, If Tenant shall have paid an a~~nt ~;:~h:a;:~
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required to I)e $0 paid, 'hen Tel'l~l'lt $hall fOrl.t'lWlth pay 5Uch diff$rence.
(d) Tile reports required by this Section 4.06 shall be dellv@lred to Landlord at the notices. address of ;.andlOfd
or to such other person ~md/or to such other place as may be designated from time to tlme by nobce from LIJI,dlord to
Tenant,
Section 4.07; TENANrS RECORDS & AUDITS.
(a) Tenant covenants 3M agrees that the business records of Tenant and ,Clf any subtenant, liQf!n$etll or
concessionaire shall be maintained in accordance with generally accepted at;CQl,lf1tfng prtflQlples. Furthermore. Tenant
ahall keep at all time$ dl,lring tho 'Term, at the Premises or at the home or regional offICe of tenant, full oomj:lete and
aCCllratll book$ of aocount ~U1d records In accordance with generally accepted accounting practice with respt~ to all
oplltation& ot the busi"ess col1dUQted in or from the Premises. Including the recording of Gross SalAS and l~e rec:lII~l of all
merchandl~ and other goods iflto and ttle delivery of all merchandise and other goods from the Pl'emI5" dUT11'1g the
Tetm and tlhall rehlil'l $ud1 books end records, copies of all tal( reports and tax retums submitted to taxinQ authorities. as
well as copies of contrects. vouchers. checks, Inventory record$ and other documents and I)spers in any way wlating to
the operation of 9uch bUSiness for 8t least three (3) years from tM end of the periOd to which they ere applicable. or jf any
audit Is requlr'ed or a cXInttClversy st'\ould arise between the parties h$tato regarding tns Rent payable hereunder. I. ntll such
audit OC' eontrovertiy is tl!HTl'linated even though such retention petlod may be aftl!ll' the expiration of the Term or earlier
termination of this LAase. SU~h baOk5 and reoords shall be open at all reasona~ times dutil'\g the aforesaid -etentlon
period 10 the lnsplldion of I.9ndlord or Its dUly authorized repreStmtatiVes. who $hall have full and free accass 10 such
books and records and the right to require of Tenant. Its agents and .mployee~, auc::h Information Of explanation ~Ind aUdit
tmereof and the rlght to roqUil'Cl Tenant to m(llc;e such books, reeords and Othm- materials which TGf18nt is required to retaIn
av~il"ble at the Premises for such examinatiOn and audit.
(1:)) The acceptance bV the Landlord of payments of Percentage Rent $hall be without prejudle' to the
Landlord's lI!l)(amlnation and audit rights hereund8l". Landlord ml'lV at any reasonable time. upon twenty (20) d~lYS' prior
written notice to Tenant, eauQ4iJ Ii complete audit lo be made of Tenant's entIre books, records and other materi~ls which
Tenant is reql,lirfitd to retain (InclUding the bQQk, and recor(Js of any subtenant, licensee, conceSSionaire al1d otl"ter
occupant) fQr liill or any part of the thret!l (3) year period immediately p.'eCeding the d$y of the giving of such r'lOtice by
Landlord tQ Tenant. If such audit shall C'ElV$ElI a deficiency In any paymAnt of Pereentag$ R.ent. Tenant shall fortl'lwith pay
to Lancllotd the amount of the deflclency.
(c) I~ such audit shall dlsclosa that (i) any of the Yearly Reports understate Gross Sale$ during the repOrting
period of the report to the E"..xtent of two peroenl (2%) or more; or (II) T8nant l'lasnot reoOl'dBd Gross Sales, or kel)t bOoks
Clf account and r9eords, as and for the period required by this Section 4.07: or (ili) if Tenant shell be delinquent in dallvElring
to l..8ndlord the Yearly Rel)Ort or Monthly Reports for twO (2) consecutive months, or more ttlal'l twice In any Year ell' Partial
Year. then such understatement. failure or dolinquel"ll:Y shall be an Evenl of Oef'ault, In addition. In the event of such
understatement or failurlit, Landlord shall have Ihe rigl1t to bill to Tenant the amount of any deficiency In F2etOelitage Rent
and thll rAaaOt'!able cost of said audit which shall be paid by T anal'lt within twenty (20) days aft8\' dem~lOd which dflflclency
will bear interest at the "o.fault R.... (defined in Section 16.03 hereof) from and after th$ date it should have bn~n paid
until paid.
(d) In the event Tenant violates the provisions of Sections 4.06 or 4,01 or both and as a result of $\,Jch
violation, I..andlord. or its dl,lly 1iI1,1thorlzed representatives, is unable to condllct a proper e){emlnatlon aJ'IdIor al~c;Iit. the
partie$ agree that Landlord $hafl have been deprlv$d of an important riglrt Lll'ldtr this Leese and, as al'asult thereof. will
5uffer damages In an amount which Is not readily ascertainable and thus, in such event. Landlord, il'\ addition to arid not in
lieu of any other remedies which Landlord has under this lea$e, at law or in equity, shall n~~ the right, at its O)tiOI1, to
collect, as liquid8ted damages and not as a penalty, an amount equal to ten ~rCAnt (10%) of the greater of (i) Percentage
Rent reportad for the period or periods in quesllon. Of (ii) the annual MInimum Rent payable for the period or pElrlods in
question. Tenant agrees to pay Suctllk!r,.Jidated damagea,
Section 4.08: ADDITIONAL RENT.
In addition to Minimum Rent and Percentage Rel"ll. iilnant shall pay, as additional rMlt (herein sor1etlmljl$
C(IIleotively called "Additional Rel\t") all othel' amounts, sums of money or charges of wnat$oevM nature requirttd to be
paid by Tenant to Landlord pursuant to ll'li$ Lease. whether or not the same is designated as ~Addltlonal Rel'l'\". The
terms "'iexes", "Tal< Charge". "CAM Sum" end "CAM Ch"rge" are defined in ArtIcles 5 ant;! 8. respectively. In computing
the Tax Ch3rge, the CAM Chargl!l and any otMr charge to Tenant oomputed on the same or subctar'ltilllly similar h8$is as
the Tax ~harg. or the CAM Charge (collectIvely "Ottlef Like Chwg.."), the !'let payments by the occupant of the Majol1i
and JunIOr Majors to landlord toward the Taxes, ttv) CAM Sum or the sums Ql'l which Othet Like Charges arEI based
(Collec:1lvely the nOLe Sums") Chall be applied respectively to reduce tl'\$ Taxes, the CAM Sum and the part/Gular Ole
SUm before apportionment and determination of the Tax Charge. CAM Charge or Other Like Charge tQ be paid by Tenant
and for th~ purposes of computing the Tax Charge. the CAM Charge "nd such OtMr Like ChargEl, the denOmiI18tc-r of tne
GLA Fraction shall not Includ<a the GLA of the Majors' Premises and tl1e Junior Majors' Premls$$.
SelJtlon 4.08: WHERE RENT PAYAeLE AND TO WHOM; NO DEDUCTIONS.
Rent paY~ble by T 80IiInt under mis Lease (whether Mitlimum Rent, Percentage Rent, or Additional Rent) lIhall be
paid when. due Without prlor.demand th","efor (unless such prior demand i$ expressly provided for in this ll!lase), fihall be
payable WIthout any deductions or 5etoffs or OOUnterc/aims whalsoever (e)Ccept fQr credits e:l(pre&~ly permitted by this
Lease~ 3~ s,",all be paid by Tenanl to Landlord :at the payment address of landlOf'd set forth in the Fundamental Lease
ProviSions or to SIJCl1 payee Iilnd/or a( such othl!!r place as may be designated from time to tlrne by notj~ from ~l1<JIord to
Tenant.. At lho 4Jnd of the Term, provided Tenant Is not in default, Landlorcl shall refund to Tenan{ any amount of Itxcess
R~nt paid to Lal'ldlord a/'ld any other amOl.lnts due from landlord to Tenant. Any Rent or insta)lment tt'rereof whidl is not
paId by Tenant 10 Landlor~ .within S~V9n (7) Qo1Ionclar da~ after It is Clue shall bear i~terest at me O$fault Rate. In the
event any Installment of MinImum Rent or other sum ynder this Lease shall not be paId when due, a "Lattel Ch8rge" of five
centa ($,05) per each dolf:ar ao overdue may be charged by Landlord ~s Additional Rent tar m
Landlord's admlni$lratlva expenses IncJdent to the handling of $uch QV$rdue l:J8yments. If Tenanr ::~r:0~~~,~:~:~
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Rent b)f O/'\$ek al"d sueh check is r~r~ecl for tnaufflclent funds or other f8aSOnS nOt the fault of ~I"l<llotd, t~el\ Tenant
shall P$y Landiard, on demand, a proc:t$$il'lg fee of Fifty Dollars ($50.00) per returned cheok plus all appliOelb1e Late
Cha"9~ and if three (~) ch6cks are returned for il'lsuffld4ln! funds or other reasons not the fault of L.andlord, aU
sub$9quent paYMents to Landlord by Tenant shlilll be in tl'le form of either a certified or cashier's check.
ARTICLE 5: TAXES AND ASSESSMENTS
Section 5.01: TENANrS TAX CHARGE"
tenant $hall pay t(l L~ndlord in eaeh eal4!lndar year. as Additional Rent; Tenant'$ snare of all real estat4!l ~1nd other
ad valorem taxes and other assessments, impo$itlons, exOi$.s and other governmental or qU3sl-governmef'ltal Charges of
every kind and nature (Including\ bt.It r'\(lt limited to. gerteral and speclal assessments. sewer and fire district C1sse:OSment$,
foreseen, as well as unfore$een and ordinary $$ well as extraordinary) wtth respect to the Shopping Cente' and all
Imj)rOv~ments thereon or any pan thereof. Such taxes and assessments are colleCtively call4!lCl the 'iax.." in Un Lease.
Ten~nl'$ shBfe of the Taxes in aael'1 calendar year (the "Tall: Charge") 'hall be an amount equal to the product ob':ained by
multiplying the TaxIS apj:)Ueabl4!llo such calendar ygar by the GLA Fradion (with daily proration for any Partial Year),
lUes" shall also include Landll;m:l's reason~ble costs and expenSt;tS (inCluding statutory interellt. If any) in Obtaining or
attempting to obtain any refund, reduction or deferral of Taxes.
Section 5.02: PAYMENT BY TENANT.
(a) Payment of the Tax Charge requIred under this Article 5 shall be p{:ljd by Tenant in equal monthly
Installments In advance In such amounts as are estlmat8d and bUled by Landlord based upon the total Taxes plyable In
each calendar year. Landlord may I'8vlse Its estimate and may adjust such monthly payment at the end of any calendar
month. The first such Installment s"all be dua and payable b'f Tenant on 1M Rent Commencement Date (prorau.c1 for the
remaIning number of days In the calendar year) and subsequent Installments shall thereafter be due and payatlle at the
beginning of each ensuing calflndar month during the Terl'l'l. In additiot'l to the payments provided for in the imr'ledi.tely
preceding sentence, If. prior to the Rent Comm8fleemer'tt [)ate, Landlord shell have prepaid all or a por1lon of ttle Taxes
applicable to the Tarm. the Ta)( ChafQl![l t>l'1all il'lolude and Tenant shall reimbullle to L.andlord the Tenant's sharf! of $ucf1
TaxN (calculated in aecordance with the provisions ot Section 5.01), on Or before the Rent COlTlfTIoncemEiflt Date.
Landlord shall send to T enanl an Involee setting forth Tenant's share of such Taxes, together with copies of recel )ted bUls
evidencing LanOlord's payment of such Taxes.
(b) After landlord nas receilf4!ld the T~ bm~ for el;l(lh tlliJlSflder )'eel', I..sndlord will notify Tenant .)f (I) the
amount of Taxes on which the Tax Charge it; based, (Ii) the amount of any refund, reduction or deferral expens.:~, (Iii) Ih9
total GLA of th4!l Premises and Landlc;m;l'!,\ 6uil(tlng on which the Tax Charge Is based and (Iv) the amount 01 the Tax
Charge. If the aforasaid monthlY pl!Iyl'nan\$ on Elceount of the Tax Charge for a given calendar year are grilllter than
Tenant's share of the TaX4!lto payablo for I) given calendar year. Tenant shall receive a credit from Landlotd for (h,~ ~xc;:e,~
against Installments of the Tax Charge nex.t becoming due to Landlord, and If said payments are less than Tenanl's share.
Tenant shall forthwfth pay \.andlol'd the difference.
Section 5.03: TENANT'S AODITlONAL TAX OBLIGATIONS.
(8) Tenant shall pay befofe delinquency any and all taxes. assessmenrs. ImpOSitions, excises. fees ::nd other
ct'larges I~ied, assessed or Imposed by governmental or quasl.govemmental authority upon Tenant or its l)uslnQu
o~tion, or based upon th@ usa or oeoupalicy ot the Premises. or upon Tenant's leaaehold interest. trade fixtures.
furnishings, equipment. leasahold imprQvetlT1ents (includIng. but not Itmlted to, those required to be made pursuant to
TSmilnt's Work) alterations, changes and additions made by Tenant. merchandise and personal property of ..ny kind
OWl'led, in"tslled or usod by Tenant in. from or upon the Premises. If tt. property of Landlord is Included In any of the
foregoing items. the aforesaid taxss, assessments, Impositions, Q)(clseto, f.-. and other charges shall nonetI"lelO$!.1)(! paid
l':Iy Tenant as herein provided. Tenant shall pay. when due and payable, any sales tax, or otMr tax. aSSEtSSment.
imposition. excise or other charge now or hereafter leVied, 1i!l8SEI$sed or imposed upon or against this Lease or BOl' Rent or
other sums paid 01' to be paid hereunder. or Ter'lsnt's, L.andlord's or Agant'a intet8Bt in this L.ease or any Rent or other
sums paid or to be paid hereunder. Sl'll)l.Jld ttle appropriate taxing $Uthortty req1.lire that any talc, iI$$eSsment. imposition,
excise or other charge referred to In this Section 5.03{a) be collected by L.andlord or Aoent for or on behalf of ~U(:h taxing
authority, then such tax. as&4!lSSmel'1t. imposition" excise or other charge shall be paid by Tenant to Landlon:l Or 10 Agent
monthly as Additional Rent In accordance with the term!;! Of any notice from Landlord or Agent to Tenant to such effect.
Th~ ~es, assessments. ImpOl!litlons. excises, fMS and other ch~ described In this Sectton 5.03(a) shall be the
obligation of Tenant and not l$ndlord or Agent. If any tax. assessment, imposition. excise. fee 01' ot!'1er charge eo/ered by
this Seetkm 5,03(8) Is Imposed on Landlord or Agel'll. Tenant shall pay the same to Landlord within thirty (30) days trfter
receil)t of each bill tht!Jrefor,
(b) Nothing herein contained !Jhall be eonstrued to Include In Taxas li1r'1y inheritance estate succession
tran~fer. gift. franchise, ~orporatlon. net i~me or profit tax or capital levy that 1$ or may be Im~d upon LandlOrd;
provided. however. that, if at any tIme durIng the Term the methods of taxation prevailing at the eOmmencemeltt of the
Term shall be altered so thst in lieu of or as lit supplement to the whole or any part of the taxes now levied, assClssecl 01'
Impos8(lon real estate as such there shall be levied, allSG.$$ed or imposecl (i) a U.lC on the rents reCeived from s1JClh real
estat4!l. or (ii) a '!cense fee ~easured by th$ rents reeeivable by L.andlord from the Shopping Center or any pOrtion thoreof,
or (Ill) ~ tax or lICense fee I~POSed upon L.andlord whiCh is otherwise measured by or based in Whole or in part Llpon the
Sh~PPlng ConteI' or any pqrtlO(l thereof. then the Same shall be Included in the computatlon Of Taxes I'lereunder, e('mputed
85 ~ the amount of sue" tax Or fee SO payable were that due If t!'le Shopping Center W81'e the only property of l.andlord
subJeot thereto., If any gross receipts tax $I'lall be payable by L.andlord. Tgn~nt shall pay thG p(H'tlon theroof attribtltabtlll to
landlord's r8etllipt$ from thl& L$$se.
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ARTICLE 6: SER.VICES
Soetion 6.01: UTILmES"
(a) During the Term, il!lf'lanl shall be ~oIlilJy responsible for and promptly pay all charges for hea', water,
eleotriClty. sewer rentlil or chlillrges, sprinkler chBr~es. A.D.T. or other alarm syStf)m. water treatment facility ~8r~les, $nd
any ather utilit~ usecl or consumed in the Premises or In prQvil;ling heating and air conditioning to the PremISe' log&tl'1er
with all connection and service charges and all taxes or other ehargM levied on suct'l utilities. Should landlord ~1Ct or be
required to supply or make available any utmty used or oonsumed at the Premises. lenant agrees to purchase and pay for
same. as Additional ~ent. ~ery month in the Term; prOVided that Temmt sh~1I not be obligalAd to pay to ~"'~'ot'd an
aggregate annuat sum therefor In excess of the aggregate al'lnuat amount therefor whiGh Tenant would othefwi$e be
obligated to pay for simUar utility usage and service as 8 retail oIJstomer of the public utility (ll' municipal authority then
$vpplying $uc::h utility to the Shppplng Center, In additlQn, Tenant shall also pay any taxas, !QUl'eharges, Impositions.
penalties or otNlt additional charg~ appliceble to the utility $l\rV\ee being supplied, provlcled that ~ueh taxes. sumherges,
ili"lposition& 01' other charges are required by I$ow to be cortedad from T en8nt or art paid by Landlord to Its suppl~ar of t~
utility service In question. Landlord may. $( it$ OptiOI"l, install an Energy Management System to etfIclently conserve utility
usage and Tenant agrees to pay monthly, the 51,J1li of Fifty and 00/100 ($50,00) Dollars as Tenant's sl'lare of thE1 Energy
Management System purchase, installatiOn, mainte"ane.;, and upgracle costs. If penTlltted by law, Landlord shall have the
right at any time and fl'Om time to time during the Term to either (:ontraet (or service from a different CQlTp.l;lny or
companie5 prOViding utility sarvlca to the Shopping Center.
(b) In !he event the Premises does not presently col'ltain an electric or other utility meter, at I..mQlord's
r8quest, Tenant shall, withIn forty-five (45) days after reoelpt Qf SUCh re~uest and at Its sole coet 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 specifying the procedures for reading such meter and the rendering of bills to T en8f1t for the
utility being so metered. In the event Ulndlord or the localliluthol'ity, munlelt)allty, utility or other body supplies wator and/or
sewer servlt;es and collects for SI,IC;:h servtee and/or consumption. Tenant covenants and agrees to pay the wllter and
~r cherge (both minimum and othel'Wlse) and any othet tax. tent., levy. connectfon fee or meter or other cham. which
now or herasfter is assessed, imposed Or may become a lien upon the Premises. or the Shopping Center. pursuant to law.
OI'CUM' or regulation made or issIJed In oonMCtlon with the use, consumption. malntllnance or supply of water. or t-. water
Of sewerage connection or s~tem. Such charges shall be based on metered rctadlngs or other formula spe::lflod by
Landlord.
(c) landlord shall not be liable or responslbl@ for any loss, damage or expense Tenant may sustain or Incur
by reason of any cM~. failure, curtailmlllnt, interruptiQn, di~ption, 'brown out" or defect in thE! $I,/pply or c:ha~~r of any
utility suppllGd to tI'Ie ShOpping Center or Premi$~s or if the QUliIIlltity or c:halllcler of thEll,ltlllty $Upplied by Landlord or any
service provider i$ no longer available or suitable for i enant's requirements and 1'I0Cle Q1 ttle foregoing shall conE t1tute an
actV$1 or constructive eviction or entitle Tenant to any abatement or dimInution of Rent or relieve Tenant from ;:,ny of Its
obligations under this Lease. Tenant shall operate the F7emlses In such a manner as shall not waste energy or water or
burdef1 or ~m~ the utility lines therein,
(d) L.andlord may. after thIrty (30) days noticl!l to Tenant. CClase to furnish any Me or more of be l,lt~ity
servIces to the Premises. without any responsibility to Tenant, elClOept to COI'\neet $t Tel"ltllnfs sole cost and Elxpense,
Tenant's dl9tnbutlon fadlltlQ~ th$r$'fQl' with anothet source for the utility service so discontinued.
Section 6.02: APPLICATION FOR UTILITIES.
TAr'lant &,",811 r'ru,ke $II appropriate appllcatlonSlo tn. local utility cOmpanie~ at sueh times as shall be necE'Ssary to
Insure utilities I*n9 ava~abl" at the demised premises no later than the COmrfl8l'le8ment of the term and pay all reqUired
deposits. connoetion faea and/or charges for meters wfthln the applicable lime perIod ~et Oy tI'l$ local utility oompeny,
Section 8.03: TRASH AND GARBAGE REMOVAL.
Tenan! shall be solely responSible for trash and garbage removal 'rom the Pt$mises. including the placing of all
trash and garbage In containers provided by Landlord for such purpose. In tile event Landlord Meets to furnish ,uch
service to 1118 fAnsl'lts 11'1 Landlord's Building. T@nant ,gr$e$ to use only the s8fVice provided by L=mdlord and tel pay for
such sArvloe (inell.ldinQ, without limitation, both the cost of leasing containers and the cost of removal) monthly, as
Additional Rent. in accordanoe W"I'I a schedule of charges to be established by L.andlord (tne "Refuse Handling Ch8rge").
In I'1Q e..,en~ shall Tenant be obIiglilted to pay Landlord more for the Refuse Handling Charge than t~ prevaNlng cornpetltNe
r~tes of reputable indePfilndent trash removal ~Ontlllctors for service ~Imllar to that provided by ~ndlord. Tenant ~hall not
dispose of any hazardous. materials or envirollmentally sensitive or re&tricted item of waste in any trash facilities llfovlded
by landlord, end in lieu thereof, Tenant aheU arrange, at Its sol$ eost and expense, to have all such items removed from
the Premises and Shopping Genter In ae\:QrQance with all Go....t;trnmental Requirements (hereinafter defined),
ARTICLE 7: USE; OF PREMISES
Sedlon 7.01: SOL~ USE AND TRADE NAME.
. Tenant CQvenant:; and agrees that Ihroughout the Renl Tl!trm. Tenant !lnsll continuously use :>tnd operate all of the
PremlBe$ for the use set forth In the Fundamental Loase Provisions and under Tenant's Trade Name SElt forth therein.
T~nant c~11 f19t use or permit the Premises to be used for any other purpose or under any other trade name wlt10Ut the
smor ~rl"llIn consent of lanclford. Tenant agrllles that If Tenant Or anyone else claiming thrt:M.tgh or under Tenant IlS(!t. the
PrE!ml~es for a uaa or trade name not set forth in the Fundamental Lea$e ~vislon& without Landlord's prlol' written
~onsBnt. sud'l conduct shall ~n$titute an evont of OefaUIt, Tenant shall, 8T Its IXPflIlSe, procure any aM all gov41r~m$,.,tal
~cen~ and permIts, Including. wlthOl.lt IImlration. sign permif$. required for the conduct of busIness in or fl'om the
remIses and shall, at all times, comply with ttw;! requIrements of each such license and permit LQndl d d
represent or warral'll that it will Obtain for Tenant (or that Tenant Will be a~ to obt:lln) any license or permit. or oes not
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s.ctlon7.02: HOURS.
Tenant covenants ~nd agrees that throughOl,lt tt'le Rent Term, Tenant shall continuously ~eraIA, cor.duc~ its
business within and otherwi$Q use the Premises in accordance with the terms and conditions of thiS Lease, In clud.lrlg ,
without limitation tl'le provisions of $$otlon 7.01 hereof and all Qf the other provisions of this Article 7 (unless the P'eml5e.s
are rendered unfit for occupancy by reason of fire or other casualty, In which event ArtIcle 12 shan control). Te"a,nt WIll
Keep the Premises open for buSinesS to the public at least: (a) every MOIi~~Y through. S~t~rday from 1.~:OO a.m. ufl~l 9;30
pm' and (b) also on Sund~from 11:00 lJI,m, until 7;00 p.m. (unless pl'ol'nbited by JunsdlCttonal autl'1orlt.es) as r8Q:Jlred by
L~ndlord, In addition to any OIMr right or remedy, Ihe Break Point shall be reduced, at Landlord's option, on a 1=er dlttm
bl!lsis for each violation of the foregoing and Tenant snail pay to l.andlord the Percentage Rent so compute(! by L!lndlord.
The per diflm reduetlon shall be the amount of the applicable Break Point divi(led by 3a5 for each violation, Tenan': agr~s
that L.andlord may change the foregoing business hol.ll'$ from time to ~Ime to re~e01 local custom or ,seas~1 shopping
patterns provid~ that Such changes are uniformly applied to the majonty of tGtail tltllants In Landlord s Building. Tenant
shall not be re~ulred tQ k411Elp tl'le Premises open during hour~. wh41ln the Enclosed Mall it closed to the publ c. The
fequlrement5 of this Section 7.02 are subject. wfth respect to any tll,lslness controlled by ~overnmental regulations In Its
hours of O~t1. to the hours or operation so prescribed by :sueh governmental reQu~atlon$ a~d are furthar subject to
appli(:l:;lble f@deral, $tate. and local environmental and ot/'ler laW$, rules, or regulations, gUldellnes, judgments or orelers.
Sec:1:lo" 7.03: OPERA1"IONAL REQUIREMENTS.
Tenant agrees that it:
(3) will not in connection with the PremlS4lis conduct or pem1it to be conducted any auctiOn, fire, bankruptcy or
going out of business sales. or sImilar type sale. or ut"'le any unethical methOd of bUSiMBA: provided. however, that thIs
provlsion shan not restrict the absolute freedom (as belween Landlord and Tooant) ~ Tenant \Q determine its ow, salling
prices nor shah it preclude the conduct of periodic. seasonal, promotional or c;le$r$l"lce taales;
(b) will 1'10t use or permit the use of any apparatus for sound and/or light reproduction or tramimisslon
including loudspeakers, phonographs, radios or televisions, or of any musIcal instrument In such manner that the sounds
sO teproduc;ed, transmitted or produced shall be audible beyond the Interior of the Pr&mIS8S; wtll not distribute, or .:ause to
be diStrlDuted. at the Shopplng Center or In any pan thereof any handbills or other advel1lslng or notices: and will not
conduct or permit any aetlvltles that might constltutA a nuisance. or which are prurient or otherwise not ,-enerally
considered appropriate In accordance with standardS of operation for tt'le Shopping Canter established by Land ord: will
nol Install any antennae or other eornmunleatlon equipment on the roof of landlord's Building Or anyWhere On tne exterior
of the PremisElS;
(e) will keep all meehl!lnical l!lPparatus free of vibration and noise whieh may be transmitted be)ond the
COnfines of the Premises; will not cause or permit strong. unusual, offensive or objectionable sound, sights, odors, fumes.
duSI or vClpOrslc emST'late or be dispelled from the Premises;
(d) wit! not load or permit the loading or unloading of merohandise, supplies or other property, nor :,hlp, nor
receive, outside the area and entranee dl!lsig~ted therefor by I.andlord from time to time; will not permit the pi1l1'klng or
standing outside of said area 01 truck,s, tr;;Jilers. or other vehicles or equipment engaged in such loading or unloading in a
manner which may Interfere WIth lhe LJse Of .any Common Areas or any pedestrian or vehicular use and good regional
~hopplng center praetlCl!l: wllllJse l~ bast affor'tS to Qomplele or cel.l~e to be completed all deliver~s, loading, uq/oading
and services to the Premises prior to 9:30 a.m. 9aeh day:
(e) will not paint or decorate any part of the exterior ar interior of t/'le Premises, Or ch9nge the arcr'tectural
trlt!atment. fixturing. decor or olher a~aranoo of tl'l$ interior Qr fiiI)(terior of the ~reml$e*, without first obtaining Lcandlord's
written approval of such painting, deooralion or change; and will remove promptly upon order of landlord ;!ltlY psint,
decoration or change which has been applied to or inst"lIed upon the exterior or interior of the Premises without Landlord's
written approval:
(f) will keep the inside and outside of all 91ass in the doors and windows of the Premises cloan and will
replace any eracktld or broken glass with glass of the soame kin(!. si7.e !;Ind quality; will maintain the PremISes at its own
expens.e in a (:Ie~n, OI'derty and sanitary con~ltfon and free of im~ect5, rodents, vermin, and ort\er pats and will use an
QldertnJnator deslg~ted by Landlord and at tlllles designated by Landlord; will not bum Ot permit undue accumulation of
garbese, trash, rubbISh and other refuse; will ($l.Ibject to Section 6.04) ramove the same from the PrAmises to C::OrTIpadors
or ~ther receptacles desigtlated by landlord. and will keep sue" refuse in proper conralne1's In the fr'llerior of the Premises
untrl so removed from the Premises;
. . (9). will comply with all applicable federal. state and local li!nvironmental and other laws. rules. reglJlatlons,
gUldBh"'e~, Il,ldglT1en~ and orders and all recommendations of any public or private ageney having authority over insurance
~ates wl'llCl'I now ~r ~n t!'e future enact reql.lir.ements with rBap(tCt to the use or occupancy of the Premises by Tenant
,nclu"dlng, withOut ~lIl.,itatlons the requlreme,nts Imposed by t~ Americans with Disabilities Act which Imposes reQui-em6nt~
rel:atlng to the deSign and use of the Pr~ml8~ and the reqUIrements Imposed by the Clean Air Act which Imposes among
othe~, requIrements relating to the ~Qnhng, use of, and dispQ!i81 of chlorofluoroearbons and other refrigerants (collectively
the Go~m~t81 Requ.l...m8~tli ); will not uSe or ~rmlt the use of any portIon of the Premises for any Imlawful
purpose, and Will condu01lts bUSIness In the f=lremlses In all respects in a dlgnlfled manner and in accordance with h'l'Ih
slandards of store OperaUOn; I~
(h) will provide, Or Cause to be provided all security within its Premises as It dgeli1s approl'ri-..te;
d (i) . will also comply with and observe all rules and regul~tiQns established by l$l1dlord from time to time in
accor ance WIth Section 8.05;
inconSis~nt wIth ~~~~~~:~~~a~:a~~e o~~ fi'Zt ~~':~h~P:j~g,%t;!a";jses for solicitations, demOn$tratloM Or any activities
(k) Will not use. or permit to ~ used th II 'd 11._ '
YummyJapan-Caj)italClty.Flnal ' e ma S or SI ewa".;! adjacent to the Premisf)S, or any othel' space
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outside 'of me Premls4tS fot the disPlay or sale or offerin!;;! for sale of any merc;l'landlse or for any other bu&lness,
occup~tiQn or undertaking;
(I) will provide or cause to be J)rovir:lllld within the Premises, without cost or 9lCpen:!:9 to Landlord. :;d8qu:;ate
lighting alid 5~urityfor its licensees. invilees and employees during such periods as the Premises an~ oj)$n for butlne:!:s:
(m) will m~lntain at all times a full staff of employees and a completE! stock of merchandise and othl~r goods
consistent with the use of the Premises;
(n) will conduct Its business to m:aximize Gross Sale5;
(0) Tenant shall maintain the Premises In first-class condttlon throughout the Term of the Lease 21nd shall
r(!rurbish all worn !ilurfaoes to bring the same to like new condition. at Tenant's sole cost and expense, as same is
reasonably r'I~9!>!'>al"y during the"lerrn;
(p) w\l1 conduct Its labor relatIons and ita rSlatiol"l'li with $mplQyees in ~uCh Ii! manner C115 to GlVQid :ill, 5trike5,
picketing. boycotts or hand billing at or about the Premises llnd the Mall Pn:l",ises. Tenant f\.lrthef agrees mat If. durIng the
period of any work by or for Tonant in or ,abc)ut the Premises in connection with such work there is a strike, plcl<otlng,
boycotting, hand billing or otn9r acUvi~ objactionable to Landlord, TeMnt shall remove or cause to be removed from the
Prerni$e$ and the Mall Premises '-'II person&. to the axtMl not prOl'libitecl by law, until such strike, picketing. boycotting,
hand billing Of other ~tivity ceases and the cause thereof is settled to Landlr:m;l's satisfactIon;
(Q) will not without obtaining Landlord's prior wrltt9n approval, whlel'l approval may be with/'leld in L.Hndlord'$
discretion. Install any storage or propane tank, whether above or underground. at the Premises or in the S~pll"~ Center
and if Landlord shall conSGnt to tlueh Installation, Tenant will comply with all applicable laws. regulations and un,;jerwriter
requirements concernIng the Installation, operation, and Closure of suoh tank. Upon termination of this Lease, l.andlOfd
shall have !hI!! QptiQn Qf r~quiring that Tenant, at Tenant's sol. QQSt ~n~ eXPense, perfQrJTl tests I'8latlng to the OOI'ldltion or
!Juc:h tal'llc: and/or remove any rank II"l$te(led by Tunant and associated contamiJ'l~~ material, Tenant shall b8 d~med the
owner and Q~ator of any tank Installed by renant. Tenant shall relocate $uoI'l tank at Landlord's reqUest and atrenanr,
eXl'ense, to another location acceptable to landlord;
(r) will, if applieable, install and properly maintain oliI grease trap and either a "black iron duct", or other self.
contained venting ilnd exhaust system aeceptable to I.andlord. Such Item& &hall be Installed in a manner. of mate 'Ials and
at a locatlonapprovBd ill ~dvance by Landlord and shall, at I.andlord's option, connect to trunk. faeillties, if any, SUI 'Piled by
Landlord for samE!;
(t) willl'1ot use the plumbing facllitillt$ fOf any purpose other than that for which they were constructed and will
not di$~o'e of any damaging or InjuriOu$ $l,Ibstance ther~n;
(1) Will not install. or permit to be h'lstalled or operate any coIn or rokan operated vending machin.a, game
machine. pinball machine, pay telephones, pay locIcers, pa)1 toilets, $e~les, amusement devices and machines for the sale
of beveragQs. foods. can~, cigarettes or oth~ COmmodities, except soCely for usa by Tenant's employees In nlln sale5
area and not to exceed collfllcUv~ly l\M) (2) machines or oth9r davices;
(u) will not ~tort'l, disp11ilY, rent or sell any .l!lI..1dio or videQ cassettes; and
(v) Sampling Rights: Notwithstanding anythin9 contained herein to the contrary, provir;kad Tenant (!OfjS not
Interfere with the adjoining hutIM$$e& or impede the f101N of pedestrian traffic In the Gommon Areas, Tenant sl'lall nave
the right to offer samples Qf itS food products and copies of its menu only In front of lilncl within five (S} feet of the I='remises,
prOVided further that Tenant shill keep such area free and clear of any debrIS rasulting from such Gamplil"lg.
SectiO" 7,04: TENANrS USE OF ROOF, EXTERIOR WALLS, ETC.
Tenant shall not, without having obtained the prior written oonsont of the Landlord, perform any work of ani nature
whatsoever to the roof, exteriOr walls or to any of tI'le structural ponlon5 of Landlord's BuNdil'lg or the Premises or n areas
reS9rvGd to I.andlord or e~elU(led from Tenant In 1he Store Deslgn Ct'iterfa. Any damage to the Pl'8mlse$ or any purson or
property Occurring 8S a result of 1iI breach of this provision shall ~ the salt responaibility, cost and expense of the Tenant.
Notwithstanding Teflant's rights a~ forth els8Wt\ere in this LelWl, Landlord may lltl'$et addItional stories or other stl1Jctures
over all or any part of the Premises, Landlord's Building and any otl'ler part of the Mall Premlsa$. In connection w.th such
erection. or otherwise, l.andlord may relocate Tenant's equlpmant and may ~rMt tt~mporary $eaffolds and arMr ..ids to
such construCtion at Landlord's sole oost liind 8XI)9nse,
Sectiol'\ 1.05: OPERATION Of HVAC SYSTEM.
Tenant .srees, durln9 the hours th$ F'remlses is open for business, to control and/or operate as :;ap~ionble the
HVA~. syste~ serving the PremilJe9 regardless of whether such equipment was Installed by Landlord or Tenant so that
coMitions. Insida the P;emIS$!l are maintained withIn a tsnge of 72 to 75 degree& Fahrenheit or WIthin such range ~$ may
be p~scnbed by applICable governmental l:ll.lthorlrle$ so that heat, ventilation and cooled air are not drained froll'! the
Premises or tl'te EncrO$ec1 Mall.
Seetlon 7.06: EMPLOYEE PARKING AREAS.
" I.andlord may, fro";, time to time, dasignate that p~rticular portions of the ShOpping Center parking areas (the
t:rnplo~ P8rklng AAa& ) \'Iiro to b6 1J3ed by Tenant and its employees, or other Individuals working at or fr:Jm the
PrernlSM. If Landlord d~t; '0, Tenant and Its employees ,11811 par\4; their vshieles only In the Employee Par~jng Areas
Tenant $hall furnish ~andlord wl1h ~ liat of TMant'$ and employees' vehicle liCense numbel's within fifteen (is) da,'S afte~
Tenant opens for busll'less In the Premises. and at Landlord's request. the Tenant ahall thereafter notify UnGlord tn' n
r any addition, .deletlon or other change to or from such list within five (5) days after Landlotd mak tJCh wrltl g
anent shall notify each employge in writing of the prl)visions of this ~tlon "I 06 nor to each em less rtlqueet.
~~~==B=~.~n:fm tl'le Premises. If Tel'lant or .ny of It$ employees do n~t park their vehi~:::t1:~:~:~~
AugU$t 24,2005 \ MosuJ"tF 14
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~3rklng Areas, I.andlord may give Tenant notiC4!J of such violation. If TeI'1~nt dOM not cease ,such violation. or. ca Jse ~uch
violation by thf;l empk;Jyee to cease, as the cne may be, WIthin two (2) dSlY' after Landlord s notice of vlolatron Is. Q1~n,
Tenant shall pay to Landlord. as Additional Rent. an amount equal to Twenty Five Dollars (S25,~) per .day per vlOl~lng
vehicle. For any subsequent violations, said Twenty Five Dollars ($25.00) per day per violating vehicle charge shall
commence without the necessity of furtl1er notice. and landlord ~hall, In addition, have the right to have the vIolatIng
vehicles towed at Te"liInt's eXPf.lnse.
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Section 7.07: NON-COMPETmON COVENANT.
Deleted .
Section 7.08: SIGNS ANO ADVERTISING"
fenent $11811 not place or permit to be placed on the exterior of the Premises or wlnoows or in the stom front or
roof, ~ny sign. banner, decoration. letterlng or advertising matt&/' (collectively a "sign") without the L.andlord's prl.,r WI'ltten
",ppn)~l. TenGl1t ~h4Ill submit te l.andlord reasonably detailed drawIngs of Its proposed signs for review and ap3roval by
LandlOn;1 prior to utili%ing ~afT1e; however, Tenant may without such approval use in the store front professioN lIy made
reasonably sIzed signs Indicating prices, styles and like infQf'TT1ation. AU tigne shall be insured .and maintained at all times
by Tenant In good condition. operating order and repair. Flashing $igna are prohibited. Tenant !Jh~1 install one internally
illuminated, Indtvldu81ly lettered sign or other type of sign as 'peelflod by Landlord above the ~torGfront of ~ l)romiM$
liInd professionally lettered name signs on Its service doors in aeOOrdai"l4::e With me Final Plan iii Or other p ens and
specifieations previously approved by Landlord.
LandlQrCI shCllI have the right. after twenty.four (24) hours prior wrltton nolle. to T.mlnt and without lii~ility for
damage to the Premises reasonably caused thereby. to remove aMY ItQM& di&played or al'flxad in or to the Premises which
Landlord determines (in its reasonable Judgment) to be in violation of the pJ'tJvision$ of this $action 7,08,
Tenant will keep the storefront sign and dit;~lay WindoW$ in tile Premises Iigtltecl during all periods tMat tne
ShQpping Center is open to the public and for OM-half hour after required business hoors and for such otMr J)lll'iQc;ls 0;1$
may be reasonably required by rules and regulations e$tablished in accordance with Section 8.05.
ART1ClE 8: COMMON AREAS
Section a.01: USE OF COMMON AREAS.
(a) Tenant and its employees and lnvltees are. exeept as otherwise specifically provided in thh Lease,
authorized. empowered and privileged during the Term to uSe the Common Areas for [heir rMl)edive intended purposes
in common with ot~r persons. Tenant's right to use any meeting room or auditorium, If any. in tl'le Common Ar,~as shall
be subject 10 $l,ICh 5Qhedule5 and payment of $ueh fees or charges therefor as landlord may from time to time acklpt
governing tl'le use thereof,
(b) Landlord shall at all times have the right to utilize the Common Areas including, without lImit~tion, the
Enclosed Mall 'or promotions. exhibits, carniVal type shows. rides, outdoor shows, displays, automobile and other :lhows or
events. Ihe leasing Or licensing of klosk~. push om1s and food facilities, landscaping, fleeting areas, seasonal :jilllpl~~,
decorative Items, and any other use whiCh. in LandlQrd's judgment, tends 10 attract customers to. or benefit I~ Cl.1$tomers
of the Shopping Center.
Sec=tJon 8.02; COMMON AREA MAINTENANCE SUM.
(a) The term "COtnmon ArM Maintenance Sum" (or the "CAM Sum-) shall be charged end Pforat.td 11'1 the
mannar hereinafter set forth and shall mean all sums incurred In a manner deemed by LandIQr'd to be reasonable and
appropriate and for the best Interests of the ShoppIng Center In connection with the operatlon, f'el)air and malnti!ll\ance of
the Common Areas and the Shopping Center (and any addltion$ thereto), including, without limitation but without
duplicatiOns. the costs and expenses of:
(1) ?peratlon. InsPElc:tion and/or maintenance of the stQrm, sanitary. electrical. gas, staarr., water.
lalep"!O~e systems,.llgh~n9 system (InclUding poles, bulbs, and fixtures), and other utility systems. including piPES, duct!;
and SimIlar Items: d"lkJtronal sIgns and other traffic signalS, markers. control$, Signs (including all identification signs) both
on and off site:
. (Ii) snow. Ice. trash and garbage rl~mo\lal. pest contrl;II, and cleaning, paInting, SW9ElpinQ, strll)/ng i;lllcl
repavIng all pi1rkln~ surfaces, serviCes ~reas and other portions of me Common Areas'
(Hi) operation and~or ~8Int.nanC:$ cf all heatl~, ventilating and air COOling and other utility !.ystems.
emergency water and .sprInkler, &~Ul'ity. life safety systems, pumpll1g systeml!l, electrical systtlm$ and alf e$eaMtor and
eleV$tor system& Md any other Items, facUlties. equipment, ~nd systems furni$~ by L.andlord as part of the Common
Areas;
, ,. ., (i~) premiums and othel' C::harges for insurance to the elCtent provlded by I.lIndlotd, including without
hm.'~tion. liability Insurance for personal .and bodily Injury. death and property damage; insuraneG ooverlng L~ndlord's
BUddIng al'ld (lie Common Areas against fire and extended coverage perHs: theft or CSBUaltl8&: workers' compensation'
plate glass Insur~nce for 9f8S5 exclUSively serving the Common Areas: boll8l' Insurance {If Carried); losses borne by
~andlord as a result of c:Ieductlbles or self-Insured retentions carried by l.andlOr'd under an insurance policy or self
Insurance by Landlord; L.andlord'$ risk management expenses and rent Insurance provided I)y L.andlord purs uaf'lt to
S4i!ctlon 11 .02; _
, (V). operatIon and/or m~i"tenance of gazebos, fcuntalns, art features. sculptures, fencing anC similar
,terns 'coated withIn the Common Areas and InteriOr and e)(t$r;or planting. replanting and replaCing of all ''Iowers
Shrubbery, planrs. .tre8S aM oth9r Isndscapjng wlthinlhe Common Areas; .
11 d (v,) OperatIon snr?or maintenance of Landlord's 8ulldlng's $b'U(;ture, Including without limitation
aors. oars, waifs: c~r'ng, ~, Skylights, and windows; 'j
(vii) maIntenance and dep/'8(ljation of all maChinery and equipment l.lsed in the Opl!lral'
'fl.rmmyJ"~n-capJtarCjty-Flnar Ion or
Al,lQust ~4. 2005 \ Most/JTF
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maintenance of the Common Areas (IOOlJdlng but not limited to all escalators, eleva,ul'$ and other ~ical u-aospOl1atiQn (if
any), security ventdes and equipment) and all persornal property t8)(., Bnd otM... ehargos Inoon-ee1 In eonnectlon w th such
machinery an(lliltlult)ment;
(viii) all license and permit fees, any and all p$rking surcharges that rn:ay I'Illsult from any envIronmental
or other laws. rules, regulatlom, guidelines or Of'ders; .'
(Ix) the expens$ of installatlon lllT1d operation of loud8!:1'i18kor systems. musIc program servlCej, cable
television systems, or similar Budio or video transmission syStems;. .
(x) personnel. Incluoin9 without limitation, cleaning and malntenan~ personnel, Landlord s
management st8ff {whicn Includes the General Manager" Assistant Manager, secretaries, bookkeepers and aeC(~ntants
(regardless of where the aforesaid personnel are located)] together with t"llI uniforms, payroll. payroll taxes and ernployee
benefits of all such personnel;
(1(1) tnll expense of seourity personnel and equipment, including, without limitation, uniforms 3! well as
transportation and sl,lrveillance equipment
(xii) all costs, charges, and expenses incurred by Landlord in conneotion with any change of any
company providing aladridty r:ervlce, including, without limitation, malntenatnce, tl!lpair, installatIon. and service costs
associated thel'eWith;
(xiii) all expenses irn::urred by l.andlord at the same rate per \,Init Landlord eharQcs to tenants, in
conneetion with refuse disposal, water and sewer, gas. ateam, ext8f'lor site lighting, electrielty, air conditioning, ~eating,
and other utilities, Including, without limitation, .any and all usage, service. hook-up, conneotlon, avallablUry and/or standby
fees or charges pertaining to same;
(xiv) Landlord's supervisory charge in an amount $'11.181 to fifteen peroent (15%) of the to~l a~gregate
co~t of operating and l'liail'ltaifdl'lg thll"J Common Areas, including but not limited to tnOBe things listed in Section 8,02(a):
and
(xv) expanding. liIdding to or reconfiguring the Common Areas (Or ~y portIOn thereof).
(b) Notwlthst~ndin!il the fore!;lQing, the CAM Sum shall not Include:
(i) thE! expenSE! of any repair or replacement required of Landlord pursuant to It'Ie reconntructlon
oblig~tiQns of Section 12.01;
(ii) d$Pt'$(;iation (otl'ler than depredation as above speclfled); and
(Iii) any utilities which are directly metered or submetered to tenants in LliIndlQrd's Building.
(c) NatwitM~ndjn9 anything CQfltained in thiS Lease to the contrary. in calculating the "CAM c:harge"
(defined in SectiQn 8.03), the CAM Charge may be based upon Landlord's estimates. which estimates and pllyments
thereon shall be subject to adjustments 11'1 futu... billil'lgs to Tenant based on Landlord's actual cost. It being unc1erstood
and sgreed that in determining actual costs, Landlord in its sole discretion, Will make allocations of certain Items hetween
the enClosed Mcal1 ~nd other portiol'!s of the Shopping Cent$( 01 whiel"l the EneloMd Mall Is. a part, Whieh neetl not be
based on relative size or use.
(d) Landlord may cause any or all maintenance ~ervleas for the Common Areas to be provided by an
independent contractor or contractors or others and tM eoslS therefor ~hall be '"eluded In the CAM Sum. E):e.pt as
provided hereinabove, none of the costs for the original construction and Installation 0' the Common Areas ~hall be
included in the CAM Sum.
(e) If Landlord from time to time acquIres, or makes availabte. additional land or improvements fOr p.Erk,in!;l or
Other Common Area purposes. the CAM Sum shall also Includs all costs and expenaas Incurred by Landlord in cOllrnwtiQn
with the operation or maintenanc:e of said additional land and Improvements.
(1) The words "maintenance", "maintain" or "maintaining" as used in this Article a ineludEl$, without limitation,
all repairs, reph!lc::ement~ ~nd other work and service of any type whatsoever.
Section 8.03: CAllI CHARGE.
(a) Tenant shall pay to landlord, as AdditiOl'laJ Relit. Tenant's share of the CAM Sum in th$ manner :Jet forth
in Sedion 8.03(b) and (e) below. Tenant's snare Of the CAM Sum for ead1 calendar year snail bt;l an $l'l1ount equ.i11 to the
CAM Sum for that period multipUeq by the GLA Fraction (the "CAM Ch.up"). For any Partial Year, tne CAM Sum will be
multiplied by tne Partial Year Fraetlon with the result multiplied by the GLA FractIon.
(b) Tenant shalt pay Landlord on tl"l(! ~ent Commencement Date and on the first day of each calendar month
In the Term t1'181'$.-fter amounts estlmated by LandlQrd to be Tenant's monthly share of tht!l CAM Sum, Landlord may
adjust said amount fit the end of any calendar montn On the basis of landlord's experience and reasonably antielpated
costs.
(c) Following the end of $~ calendar year, Landlord shall furnisl'l Tenant a st:iltement covering the calendar
yea... just expired, certified as lXIl'1'ect by an independent l:lul)Ue accountant or an authorIzed reQl'esentative of liu~lord
sl'r~ng the CAM Sum and the amount of the CAM Charge and the payments made by Tenant with respect therel-) as set
forth In the preceding Section 8.03(b). If Tenanrs aggregate JYlOllttlly payments on account of the CAM Charge are greater
than Tenant's $~re of the CAM Sum, Tenant shall receive a oredlt for the excess against monthly installment& 01'1 !ilQCount
of the CAM C:h8r~ next becoming due to Landlord; if sai(l payments are less tnan said share. Tenant shall pay to
Landlord the difference forthwith.
(d) landlord may have heretofore .Iec:ted to eprcacI. and may hereafter elect to spread, the amOUnt of any of
the. ex~nsElS of t~e CAM SUM ov~r $uch perIod of years as landlord snalf determine by amortizing them l)V'M' sucn
perl~S I~st~ad of Including such t)I)(penses entirely in the year in whicl1 expended or lneun"li!d, in which f!I"EIt'1t, the annual
amorti:!'atlQn amount snail be deemed to be an e)(pen~ inculTed during elaQn year of tne amortization periocI
nolWltl'1!1tliilnding that such expenses may hav~ been expended or IncUrl'tld prior to the execution of tliio Le85e. '
Section 8.04: CHANGES BY L.ANDLORD.
YummyJ::'=~ci;;:%~d and Tenant, Landlord shall at all limes have the rIght a~ privilege of determining the nallJre
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. and extent of the Common Areas anc-vt making such changes, rearrangement, a(ll.mIOIl$ or redUC;llons therein and thereto
from time to time which in its opiniOn at'8 deemed 10 be d"j",b~ or whlch are r:'$dl!l .a~ a n!lsult of any federal, state or
local environmental or other law. l'llle, regulation. guideline, jvdgrnent or order, Includl~g but not limited 10. the locatIon,
relocation, enlargement, radlJetion or additIon of drivewaY', el'1ttanees. exits, auton'1obd~ parking spaces, empl(yee and
Ol.lslomer parking areas (if any), the direction and flow of traffic. iJ"\9tallatlcn of lands~ped areas, and any and aU ~t/'ler
faoilitiat; of the Common Areas. landlord (or others entitled to) may from time to tIme make alterations. r~Clvatlons,
reduc\1ons or additions anywhl!tl'8 Within Landlord', B\.lUdlng or to the Common Areas or ot/'ter part of the ShoPpln ~ Center
or any lands Of Improvements added theret~, cons~ot addltlorlal buildings ~.impto"emenrs on the Common ,~reas or
elsewhere and make alteratioos thereto, bl,Jlld .additIonal storles on any bUIldings, contmJet multl-lev~ or !1e"atOd 01'
underground parking facilities, end conslrud roof, walls. and any other ImprovemeJ'l~ over, or In connection with 8I(ly part
of, or all of, the Common Areas in order to enclose same.
Section 8.05: RULES AND REGULATIONS.
Tenant agreea that landlord may establish and from tIme to time change, alter and amend, and enforcE! sgainst
T Mant, sueh reasonable rules and regulations as L.andlord may deem necessary or advisable fOr tl'H;! proper ~nd efficient
use operation and maintenance of the Common Areas, provided that all such rules and reQUI~()n5 affecting Tell$nt and
Its invltees and employees shall apply equally and without discrimination to substantially all of the retail tenants in
LanQlO1'd's BuIlding or substantially aU retail tl!lnants engaging in eertaln ads or of a certain use. The rules and r~~latlons
herein provided for may Include, but snail not be limited to, the hour'9 during which the Common Areas shall be open for
use.
SoctIon 8.08: LANDLORD'S MAINTENANCE AND CONTROL
Landlord sgrMs to maintain and oper*te, or cause to be maintained al'ld oper8fed, the Common Areas In good
and reasonable condition and manner. Landlon.:lsh:all,:as between Landlord and Tenant. at all times during th4:I T€rrm have
the sofe and 8xduslve control, management and dlr4ilCtion of the Common Areas, liInd shall provide or call:le to be
provided. seourlty In the Common Areas at a level determined by L.andlord (and Tenant shall provkle. or eau ~ to be
provided. adequate security within Ten~n1'$ Premises as ienant deems appropriate). Landlord may at any lime and from
time to time during the Term exclude and restrain any person from use or occupancy of al'ly of the Commol Areas.
excepUng. however, Tenant ~nd oilier tenants of I.andlord and bona fide Invlt.es of either who mak~ use of said areas for
their tntended purposes and In a0tXlrd81lC$ with the rules and regulations established by Landlord from time to lime with
respect thereto_ T~ rights of Tenant in and to the Common Are$$ $"'-11 lilt all til"l'l$8 be subject to the rights of .)rhatt; to
use the same in c:ommc)r'l with Tenant. and It shaH be tne duty of Tenant to keep all of the Common Areas free and clear of
any obstruetiona or interferences created or permlnee! by Tenant ot r$$ulting 11'01"1'I i$l'tant's operation. Landlord may at
any time and from time to time close all or any portIon of me Common Areas to make repairs or changes, Of to $lJc:h e~ent
as may, in tl'\e OpinIOn of Landlord, be necessary to ptOVC!lr'l! a Cledle\lition thereof or the accrual of any rights to an~ person
or to the public thereln. to dose temporarily any or all ponlona of the Common Are.ul and to do and perform suQh other
acts in and 10 Common Ateas as, in the exercise of good bualn8lla judgn.,t, Landlord ~h:a" determine to be advisable
with a view to thQ Improvement of the conveniel"lce and use thereof by Occupants and lenant!;J, their employees and
Inv~ee&.
ARnCLE 9; PROMOTION Of SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 9.01: MARKETING SERVICE.
(a) Landlord has established or will establish an adverti$lng and promotional service (herein allied tl'le
"M.rketlng Service") to fl,Jrt'!;sl"l and maintain aClverti$ing and sales promollons which, ill I.andlOf'd's judgment, wi Igenetit
the Shopping Center, Landlord has established or will e$tablish a fund (the ''Marketing s.tY1c. Fund") to be used by
Landlord to pay all COsl$ anQ expenses assoc1ated with the formulation and carrying out of an ongoing program for the
advertising and other promotion of the Shopping Center. The program may IndudCl, without limitation, special events,
shows. diaplay$, /jigns, marquees, decor, seasonal events, advertising for thlt Shopping Center. promorlol'lallitera:ure and
other adivltifi to market the Shopping Center based on sums collected from ten'l'1b. renant snail pay, 8S its sha"e of Ihe
cost and expense of the Marketing Service for the ba~ calendar year (as defined in Section 9.03 (8) set forth nerelnbelow)
of the term of t'- L.ease, the amount $el forth In the Fundamental Lease Provisions (herein called tl'1e "M.rtcetlng Service
Ch~W), The Marketing. Service Ch~g. for an~ Partial Yeat $hall be determined b~ multiplytng Tenant's Marketing
Sfl!rvlce Charge by tMe Partial Year Fradiol'l. The Minimum Advertising Charge for any Partial Year $l1all be deternlined by
multiplying Tenant's Minimum AdvertiSing Charge by tM@ Partial Year Fraction.
(b) Landlord ~ay appoint an advlsOty committee, composed at I('ast of a reptesentatlve of Landlord, a
representative of each Major. and ~ ~~pregen~t/\{t! from each .of six (e) tenants In landlord's Building to review the
advertising and other promotional activitieS proVIded. Such COn-tmittee shall function SOIAiy in an advisory capa~ Subject
to Landlord's disCretion.
, (c) . In addltl~n, L<I~dlord m~y ~$e the Marketing Servlee FunC$ to defray the costs of administration of the
Marketing ServICe, 1!"c1udlng, Without II"Mabon. thl!! si;llliIry and benefits of a mar1<etlng director and related admlni$trative
personnel, rent and InSUrance,
(d) Notwfthstanding the provisiol1s of thIS Article 9. Landlord may. at any time. in its sole discretion decide
'Mat Landlord will. on I;In(l after a certain date thereafter, no longer provide tlie Marketing Ser\lice. Landlord ma:, cease
performing the M.,.rt<etlng Service on the date so speclfled by the I.andlord, provided that nothing herein 5hall' require
Landlord 10 breacl1. or fall to perform any liIgreement Qf' obligation it has made with or to any thltd r;lerson in oonnection wi1h
th., Marketlnj:; ~enllce. If L"~lord d~tl!ll'1'!'lines that it Is or may bo at rlak of any sum breaC:l1 or fanure. LancllOfd need not
cease performIng the Mark.bng SeNloe untlJ landlord determine, that $uch risk has passed.
n (e) . In the event thaI during the Term there is (I) any renovation of the Landlord's Building or lhe Enclo$ed MaU
~u~~Y~~':~~~~C1~~F:~ovatJor'l of the atorefronts of fifty percent (500/0) or more of tl'le eXisting tenants' spnal$ (a
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~Stc)rvfl"()nt Renovation"): or (Il) any exPansion of Landlord's Building which incr..es tM GLA of landlord's Bu Iding by
ten perQJnt (10%) or more ($ ~Bulldlno Expanlllonj. then at the tlma of a Storefront Renovation or Building Exl)an$;on.
Tenant shall ))8y to LandlOrd (whenever there Is and In each case of' a $to~rront Renovation or a Bu~diog Expansion) a
special assessment (the "Special A8HMmentj in an amount equal to the Marketing Service Charge (and In addition 10
the Marketing Service Charge) for the ClslElnclar year of eompletion of a St(;ll'$frant Renovation or a Budding EltJ,.ntilon.
Funds collected by the Spedal Assessm"nt will be used for expansion/renovation advertising andlor s.peci~1 e\fent$ to
promote the Storefront Renovation or the Bl.lilding Expant;iOn,
(f) Landlord retietV8S the rIght. In its sole discretion, to recommence providing the Mar1ceting SefVic~ .;!It My
timlll after Landlord ceased providing the same.
Section 9.02: TENANrS MINIMUM ADVERTISING OBLIGATION.
(3) In addition to. Md not in lieu of the M:!uketlng Service Charge. Tenant agfees to j)articlj)ate in joint
advertising programs comprised of ,dvertising media used by L~,"dlord to advertise the Shopj)ing Center and tenants
thereof (herein called "Tenant's Minimum Advertising ObU_lon"). The initial annual expense to Tenant for SIJch joint
.advertising progrems (t~ .'t4Unlmu", Ad"ertl$lnv Ch.rg.-) has been computed to be ttMiI $urn a,..d/or 8t the rate pttr
square foot of GLA of the Premises set forth in the Fundamental Lease Provtslclns as the same may from time to time be
adjusted in secordanoe with the provh~lQns of Section 9.03 her&of, The Minimum Advertising Charge for any Parllal Yoar
shall be determined by multiplying Tenant's Minimum Advertising Ch$rge by the Partial Year Fraction.
(b) Tenant shall advise Landlord's mark-flung directof annually (or more freql.lef1tly jf requested) of the joint
advertising programs in which Tenant Intends to partICipate In each calenclar year. If Tenant fails to furnish ad..ertlsi"g
copy as required. or far any other rtillilllJOn fails to partiCipate In any jolnt advertising program for which it h.Js been
committed. Tenant shall within t;ixty (BO) day(! iMter the end of such calendar year, pay to landlord ti'la diff"-'l'lQ1lt !~tween
the amount properly spent by Tenant in fulfillment of lena nt's Minimum Advertising Obligation and the MinimVITl
Advertising Charge, Funds paid to the Landlord purauant to the r;lr~lng sente(1ce shall be spent for the promotion of the
Shopping Center In su~ marmer 1iI3 Landlord may determine.
Seetlon 9.03: ADJUSTMENTS ,ANP CHARGES.
(a) The Marl<etlng Service Charge and Minimum Ad"artlsln~ Charge shall be adjusted annually by a
percentage equal to the perce"'tege increase or decrease In the electtonic, print and outdoor advertising ratM of the media
tJ~ed for advertising and promotions in the preeeding calendar year In the medilil market in whioh the Landlord's Bllilding is
located; provided. however, that the Ma~eting Service Charge and me Minimum Advertising Charge shall not be Il~'$ than
as set forth In the Fundam8f1tal LaaBS Provisions, TM calendar year in which tne Rem COmmel'lC8Ment Oate occurs !ll'1all
be c::ol'1sidered the base calendar' yaar M(I every orher calendar year thereafter a revised base calendsI' yElar in cOmplJting
the adjustments hereunder.
(b) The Marketing Service Charge and the Minimum Advel11&lng Charge shall be paid in equal monthly
installments, In advance, on the first day of eacl't !'l'1(mtt1. except that If the Rent Commel'1cement Date Is not on the fin;t dlilY
of a calendar month. then that portion of me Marketing Service Charge ~nd the Minimum Advertising CMrga which is
attributable to me days in that first partial calendar month shall be paid in advance on the Rent Commaneement Dile.
(c) L.andlord may eharge all costs and e)(~nSEls of providing rhe Markarlng Service in any calentlar year
against the budget therefor. Said costs and expenses may include without Umitallon the follOWing:
(i) the servIces of a marketing director and $11 staff and outside consultants (Inc:ludlng prof'~$$iQnllll
marketi"'9 $el'Vice organlzatfon) deemed necessary by LEll"1dlord to carry out Iffeetllll!lly the marketing and public relations
obJootlve Of the Marketing Serviee, inc:Juding without limitelion llll p~/I. payroll taxes and employee benefits of lilrlY such
direetor and st$ff;
(ii) sueh reasonable amount of $~ce within the Landlord's Building 3S may be necessary to carry Qut
me MarkElti~ $f;trvice. the rental therefor to be comparable to the tental10r similarly sized commercial space:
(III) all actual costs lneu/'tl!!d in advertl!ilng and promoting the ShOj)ping Cent.... ir\cluding without
limltatlott radio. newspaper, television. dlreet and indirect eosts of services, art work, cop)', printing, papsr, stationery and
supplies; and
(iv)
such office equipment, utilities and telephones as may be deemed necessary by the marketing
director.
(d) The m~rIt;eting director and consultant$ $hall be under the exclusive control and supervision of Landlord.
:;lnd Landlord shall have the sole authority to employ and discharge them or either of tht!Jm and the staff of tt1e director.
(e) Notwithstanding the :apportionment of ~",ounts to the above.-described marl(etlng and .advetming fund$ as
!ret fO~h in ~th thIs Article 9 and In Seetion (k) of, tt'le Fundamentall.ease Provisions., I.$l'Idlord hereby reserves t le right
from tlme.to-tlme to allooat~ the total amount reO$lv$d by LandlOrd for suoh ful'l(b~ in any manner whatsoel/er landlord in
its solo diacretion. deems ar;lproprlate, .0 long as any and all &uoh funds attributable to saId marketing and l:Ild\/ertlslng
tvl1ds are used only to defray the COlt of the rnElrl(etIng and l!Idvenlslng Pl'09rams initialed by laMlord and to i'l'J..rket
advertise and promote the ShoppIng Center. '
Section 9.04: DISSOLUTION OF MERCHANT'S ASSOCIATION.
In the event there presently exists l;I merchant', aSSOCiation in use In the Shopping Cel1ter, Tenant agree& that
"andl~~ $hall hal/a the ~nllateral nght to take any steps reQuired to terminale rhe same and to replace soch m.r:lhant's
assocratiorl with a marketmg service, promotion fund, ~dvertlslng fund, or any othef similar &I'ltity designated by Landlord In
whlcl't event, upon notl,ce to Tenan.t, Te~nt shall automatie~lIy be deemed a member thereof and shall contribute to the
same. the amQl,Jnt which Tenant Imrnedlat~ly prior to such tel"mination was required to contribute to the me(l;hant's
~$oclatlcln. F~rtherr Tenant does hereby Irrevocably assign to 1.1iIndlord $11 of Tenant's voting rights contained i" an
bylaw Of other 91mUar document forming or governing the administration of any such merchant't; association. Y
YummyJlIp~CapitalCltywFjn!lf
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ARTICLE 10: CONSTRUCTION WORK
Section 10.01: APPROVALS AND STANDARDS.
Tenant shall not perform any constNetion or make any alteration:5 or changes tn or to the Premises al any rime
during the Term (hereln sometimes ooHectlvely callAd "Con.truetlon Work") w1ti'lout Landlord's prior written ccnsent. In
no IIvent ahall Tenant make or O$use to be made any penettetion through any roof, floor or elCterlor or con1dor w,!lll without
the prior written consent of Lal'ldlord. Tenant shall be difeetly responsible for any and all damages. lnclul:lln~, without
limitation, damages to Landlord's Building. the Premises and the premises of other tenants in l.andlord's Bulldin~1 resulting
from any of Tenant's Construction Work;, whether or I'lllt Landlord's consent therefor was obtained. Anv Snd aU
Construc:tlon Work whictl is consented to by I.lilndlord shall bEl petformed in accordance With (a) plans and Spe.:lfieationli
prepared by a Iicensad architect or ongln80r and approved In writing by the L.andlord before tile oommenocm !lnt of the
Construction Wont. (b) all necessary govttrnmenlal approval& and !*'mits. which approvalS al'ld permits T81,ant cnall
obtain at iw sole 6xpensf,!, and (c) all applicable laws, rules, regulations and buUdlng CQdes relating U'I.reto. All
Construction Work shall ~"forrn to L.andlord's Store Design Criteria and shall be performed In a good and wo1<manlike
manl"Milr and diligently prosecuted to com~on to the end that the Premises shall at all times be 8 complet6 U "lit e)(copt
during the period of the CC'lni!ltrvc:tion Work. Any COnstruction Work perfonned by Tenant without Landlord's eontent shall
be returned to its original condition at Tenant',. t!lxpense upon reqtJ8$t by Landlord, Tenant shall perform any CoU1fuction
Work in SUQh $ manner as not to obstruct the acceSs to the premises of any other OQcupant to the Enclosec Malll'1Or
obstrud other Common Areas.
Notwithstanding anything set forth in Section 10,01 to the contrary. Tenant may without Landlord'$ conS'mt. make
altet'allons to tho Interior of the P1'emlaea which do not alter, modify or In any othel' manner whatsoever 8ffBc;t the structural
portions of the Premise. (including, but not limited to. the ~Iorefront) and/or the structural integrity of tho buildin~1 of which
the Premises shall form a pert andror the plumbing, .fectrleal. heating, ventilating or air condlUonlng or m IK;hank::81
syst4:lms and installations In tM Premie.es. provid8d that any such alteration (or ,eries of such related alterations) does not
involve a eost or aggregate eot;t (as the case may be) in 9lCcess of Ten Thousand and 00/100 ($10,OOO,OO) D:lllars pet
Year.
SlIf;:tion 10.02: INSURA~Cf AND RECONSTRUCTION,
In the event Ten.nt shall perform any permitted or required Construction Work, none of the Construction Work
need be Insured by I.andlord under such insurance as LandlQrI:I msy carry upon the Lar'ldlor(l's Building nor shall1.3ndlord
be required undet i!lny provIsions of this Lease relating to reconstnJction of the Premiae$ to reconstruct or reinstall any
suOh Construct/on WOrl<.
ARTICLE 11: INDEMNITY AND INSURANCE
Section 11.01: TENAN,..S INSURANCE.
(~) Tenant further covenants and agrees that from and after the date of delivery of the Premi:les from
landlord tQ Tenant. Tenant will ~rry and maintl;lin, at Its &ole cost Iilnd expense. the following types of i!'lsuranc:e, In the
amounrs sl)$eified and In the fom'l hereinafter provided for:
(I) Commercial Gen&nlf Liability In.u~nce. Commereial general liability insurance eO"~ring the
Premise!;\ and Tenant's use thereof sQIilinst claims far "personal and advertising Injury" al'ld "bodily Injury" ()( death.
"property damage" and .product/oompleted operations. liability (a$ the aforesaid termti are deflned in sue 1 policy)
oeeurring upon. in or about the PremlSe$ ::s11d Tenant's activities in the Common Area, Suc::h insurance 10 afford protoetion
to the limit of not less tMn $1.000.000 regardless of Ihe number of p$l'$(lns claiming inJunes or damages arising out of any
one oeourrenoe. The insurance coverage required under this Section 11.01(8)(1) shall, in addition, extend to any liability of
Tenant ariaing out of the indemnities provided for In S-.:tion 11.0~. Therefore, such poliCy shall not OOntain any flxe/usion
for contradual liability CO\rflrilge for any of the foregoil"1g coyerages, the general aggregate limits under thu liability
jn~uranee policy or polic:i9!J must apply separately to the PreMises and to Ten$nt's use thereof, The certificare of
il19Ura~ evidencing U'le commerCial general liability form of policies shall specify on tha face thereof that the limits of
,!iu,Ich polICies apply SEI~tely to lhe Premiss,..
(ii) Boilers. Delered,
(Ill) Tenant Le=-tehold Improvement$ and Property, Insurance oOvering all of the items inc:luded ,n
Tenant'~ le~:rehold Improvements, heating, ventilating and air conditioning equlpmel"lt and all other improverm:nts and
better,:",ents Installed by'(or demilrled by this l.ease to) Tenant. and all trade fixtures, merchandise and personal property
from lime to time in, on or upon the Premises, and alterations, .'ildditlon& OJ' changes made by Tenant pul'tuant tQ Atticle
10, In,an amount not less than ~ighty /)$fcent (80%) of their full replacement cost from time 10 time during the Tel'n1,
providing special fOrM coverage. Including but not limited 10, protection against the P$rils included with the 5tand~trd state
fol't'll of flro ~nd broad form extendec:l COverage IrnU.Jt8lnce policy, together with insurance against sprinkler damage
vandalism and malicious mischief. Any poliey proceeds from Such Insurance shall be held In trust by Tenant$ insura~
Company for tile repair, reconstruction and restoration or replacement of the property damaged Or destroyed unless this
leaso Sl'lall cease al'Jd termlnat$ under the provisions of Artlele 12.
. ,.. (iv) Workers' CGmP"'satlon AndE;...,ploy.r'. Liability. Workers' Compen$Eltton and Employers
LIability I~~mrance affording statutory coverage and eont~jning statutory limits with the Employert; liability portion r~ereof to
have minImum limite of $1 .000,000,00.
(v) 8usln... Interruption IrUlurance. Business fnterrl,Jf)tion Insu"'l1oe equF,l1 to not less U1an fifty
p8~cent (50%) of the estimated gro~s earnings (as deflnec:t in rhe standard stale form 1)1 business Interruption imuranee
pohey) of Tenant at the Premises whICh ll'lsural'lce shan be issued on an "all risks" basis (or Its equivalent).
. Te~ant shall not, be required ro maintain the Business InterruptIon InSUrance set fortl'1 in th~
S~b~ctlon 11,.01 (al(v) of Ih,s Lease, but If renant $Iecrs not to maintain 54/ch Insurance, rhen and automatically hy such
e ectlon "nd INIthout the need Of any further documentation, Tenant releases and discharges landlord. Its agents, S!!rvanrs
YurnmyJ8p~n.C8pllaICIty.Fin81
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and employees forever from any olalrmi. actions, losses, damagf!l$. causes of action, manners of action. covenants, bonds
and agreements ariSing cut of or resulting from buCinHS Intl!lrruj)tI(Il"I to the extent that tI'Ie insurance reql,.lired under this
subHdiOn 11,01 (a}(v) would have covered the same by whomS08\lElt Or whatsoever cau:Sed, In aU evant& Tensnt shall be
responsible to replaca, at Tenant's $Ole cost and exptSl'lse, all plate glasi of Of in the Pmrnises including, wtthoul limitation,
any forming ~arf of the storefront.
(b) All policies of Insurance provided for in Section 11.01(a) shall be Issued by insuranc@l corn par lies with a
finanCial rating of not Ie~s than A VII a~ reted In the most current 8Vl!lileble "8Mt's In.Llran~ Roports'" and Cluallfied to
do butilr'leSS In the state in which Landlord's Building i$ located. Tenant's obligation to provide the Insurance coverage
specified In Section 11.01(a)(I) above shall not be affected by any deductible with respect to such policy (lr self lnsuranoe
retention maintained by Tenant. Each and every such policy, except for Workers' Compensation and Employers LIability
in~urance:
(i) shall be'issued In the name of Tenant and shall name 8S an addlliOnallnsured ~on of landlO((I,
Agent and any other parties in interest from tirT'le to tIme ~signated In writing by notice from Landlord to Tenant;
(ii) shall be for the mutual and joint benefit and protGetion of Landlord and Tenant and any ~:uch other
parties in interest;
Ciii) shall (or a certificate thereof snell) be delivered to t!lach of Landlord and any suen ether parties in
interest within thirty (30) days ~l'ior to the axpir$tIon of 8aoh such policy" and, ;as often as any $uch policy shall expire or
terminate. Renewal or eddltlonal policies shall be procured and mElintained by Tenant in like manner and to like (lxtent;
(Iv) shall contain S prcvfs!an tnQt the Insurer will give to Landlord and such other parties in nterest at
least thirty (30} days notice In wrIting in advance of any material Cl'Iange, cancell8tlon. termination Or lapse, or tho effective
date of $ny reductlon in the amounts of insurance;
(v) shall ba written as a primary polley which dces not contribute to and It; not in exce~g of CQverage
Which Landlotd may carry: and
(vi) shall contain a provIsion that landlord and any $ueh other parties In ll'lterest. although named as
an additional InsUl'ed, shall MII'Al1heleSS be entitled to recover under said policies for any 10$5 occastonec to It, Its
servarrts. agents and employees by reaSon of the negligence of Tenlilnt,
(c) Any ir'!ljl.lrance provided for In ~otion 11.01 (iii) may be maintained by means of a poliey or ~1()1,lclo:!'i of
blanket Insurance, covering additional items or IO(:Qtions or insureds. provided, however, that:
(i) L.andlord and any other p8nles In Interest from time to time designated by Landlord to Te '\ant shall
be n8med as an additionallnsl,.Ired thereunder as Its Interelilt may appear;
(Ii) the coverage afforded L.andlord and any sueI'! other parties in interest will not be reduced or
dift1inished by te3$On of the use of such b1ank"t policy of ineursnce;
(iii) any such policy or \'J(Jlicies [8)(~pt any cO\I.ring the risks merred to In SElcti<m 11.01(~;)(i)] shall
Specify therein (or Tenant shall furnish lal'ldlord with a written statement from the insurers under such IXllicy specifying)
the amount of the totalln$urance aUoeated to the Tel'1snt's improvements and Property mor@ specifically deta~ed I:, Section
11.01 (a)(iii); and
(Iv) the requltements set forth in this Article 11 ara otherwise sal.l$fied.
(d) Tenant agrees to permit Landlord at all reasonable times to Inspect the polle/es of lnsuranc:e r;,f Tenant
with Mspec1: to the Ptemises for which POIlClt!J!o Qr copies thereof are not delivered to Landlord.
Section 11.02: lANDLORD'S INSURANCE.
(:;1) Landlord shall at all times durll'\g the Term carry and maintain tMe following types of lfl~uran(:a ;1'1 the
amounts specified and in the form "'ereinafter provided (or:
(i) CommerQial G.neral Liability Insuranf;e; Commercial generalliab/llty jn~l,Irance B9Bin:~1 claims
for property damage and bodily injury or death. SUQh insuranQO to afford protection to the limit of not less tl'lan 55000,000
In respect to property damagt, injury or death lOany numbl!!r 01 persons al'ising out of anyone OCXll.lrrence.
(ii) t..,dlord's RvaJ and P.rsonal Property. Insurance covering thE! Landlord's Building [Ell(c(ustve
01 any tenant Improvements and bettermel'lts and properly required to be insured by T eJM$nt pursuant to Section
11,01(a)(iU)) in an amount notle~5 than one hund...d percent (100%) of full replaeement CO$t (exclusive of th~l cost of
eXC8vatlon~, foundations and footings), from time to time llvring the Term, Pf'Q\'iding protection against perils ndude(l
Within the standard state fOl'rr'\ of special form covElf'Sg$ insurance polley, together with Insuratlce agaili$t ,;prinkler
d8mage, vandalism and malicious mischief, and $uch other risks S$ Landlord may from time to time determine ilnd with
any such deductJbls!3 8S Landlord may from tlma to time determine.
(iii} Rent 'nsUl'al1ee. Rer'lt insurance wlth respect tl) the premi$os of the tenanl.$ in the Shopping
Center if avail~b1e at a CO$t whIch Landlord in Its so/e judgment deem$ reasonable. against 1058 of rents In an ~-gre9ate
amount equal to not more th~n twenty-four (24) tlm~ the sum of (I) the monthly t$quirement of Minimum Rent of such
tenan~, plus (ii) the a\'ersg~ monthly amount e~tlm",ted from tlme to time by Landlord to ~ payable by such ter~nts as
Percentage Rent and a$ Additional Rent pursuant to their laa$es.
(b) Any Insurance provided for in Section 11.02(8) may be maintail'led by means of a policy or po loles of
blanket insuranee, C:Ollering additional Item$ or 100000tions or insurerds provlaed ht the requirements of Section ~ 1.02(a)
are otherwise &ati~fled.
(0) Ter'lant snaN have 1'10 rights in any policy Or poltcl$s maintailied by landlord and shalt not be entiflEld to be
named an in$ured thereunder. by r~ason of P8ymont, as part of the CAM Sum of its share of L~ndlord's premiums for the
insurance provide<! for in this Section 11,02 Or othel'\Yille.
Section 11.03: INDEMNIFICATION BY TENANT,
Tenant agrees that Landlord shl;llll"lot be liable for any damSQ8 Of liability of any kirid or for any injury to or death of
~ons,or d~mage to Properry,Qf.Tenant Or any other person during thQ Term, fOl' any cause whetsoever (In.~ludin
WIthout IImltatron the acts or omlaSlOna of Landlord or Agent, bursting pl~s and smok@) by reason of the constructjo~
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use, occupancy or enjoyment 01 tf'le f.-IGr'f'Ii$e6 by Tenant or any person therein or t'lolCllng under Tenant or hapPf'lning upon
at about N Pren'lisQ ~,"d T enan! fot tI'la purlXlgeS of thts SectIon 11.03 shall btl deemed to be in exclusive control of lhe
Premises during the Term. Tenant CIOe$ hereby agree to and shall proted, defend, Indemnify and save haffll\IK; Lar'ldlord
and Agent frmn all c:laims, actions, dl!!rn~', CO$t5 and expenses and liability whatsoever, indudlng reasonable attorney's
fees, on account of any suon real or cfaimed event. damage or liability, and from an liens, claims and demards ariSil'lg
from (a) any occurrence In, or about the Premises. and/or (b) Tenant's aetiVitie$ ir'\ tile Common Areas. and/or (e) arising
out of the constructlon, use, occupancy Qr enjoyment 01 the PremiSes. and/or (d) occasioned In wtlole Of In part by any act
or omission of Ten$lnt, Its agents. contractors. servants, employees or Invltees. regardh:'lst; of whc;Ire occurrln!l. Tenant
further agrees that the oblige.ion to defend Landlord and Agent continues regardless of all~Qtion& of negligence or other
'ault on the !)ert of Landlord or Agent until "",ch negligence or fault has been t!latsbllsl1eQ in a final adJUdlcatkln. tenant
shall not, how$ver, be liable for damage or injury occasioned by the willful ad of the I..andlord which Is the caUSt!l of
damage or injury unlf!S!1o Ten~f1t Is l'8qulrod by this Lease to assume or 1n&Uf'G agillilir;;t 8Ueh damage or InJury. Tenanf3
obligation!; under tne aforesaid Indemnity Shell not be limited 10 tha amount of cl;)lTlmercial general liability insurence
covera~ which Tenant is required to catty,
SectJon 11.04: MUTUAL WAIVERS"
Landlord and Tenant hereby WilIive ~ny rights each may have aglJim.-t the otner on account of any loss elr damage
occasioned to L.andlord Of'Tenant, a'!l the cese may be. tneit respective property, the Premise.. its eont.nts or tCl the other
porttons of Lal'ldlord's Building. arlcing frc:m, any risk covered by el)G(:ial form coverage insuran~, and to the extent of
recovery under valid and eoIlEJetible policies of such In$l,lral'lce. provided that such waiver does not invalidate suc:h poliCies
or prohibit re<:Qvery thereunder. The ~e' hereto each, on behalf Of tholr respective insurance companies in&uring the
proP<<tY of either L.andlord or Tenal'1l ~111S. any sucn/oss, waive any right of subfogat/on that such Insurers may have
against Landlord or Tenant. as the eaaa may be.
Section 11.05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUiREMENTS.
Subject to Lanl110fd'S obligations In Section 13.01 to maintain t~ $tructure of the PremlsGs, Tenent a~rces at Its
Own expense to oomply with all Govemmental Req\llrements as \WII as tr're recommendations and requirements, with
respect to the F'remise&, or its use or occupancy, of the insurance unClel'lNtltet$ or insurance rating bureau or any slm";r
public or private body and any govemmental authority having jurtSdICtlon with respect to the U!JIe or ~.pancy of
Landlord's Building, indudlng, but not limited to, installation of fire elftil'Jguis~ or automatJe dlettectlon. SUppression
systems and/or IItA-safety syStems, any ch"'ges. modifications or alterations in the detection and/or suppresslOf! sY$lems
or eddltional deteetor& andfor sprinkler heads Qr .he l()(;8tloo of partitions, trade fixtures, or other oontenls of the I'remises.
Landlord shall nol matt!lriillly change the dimenaiol'ls of the Premi!;GS or materially affect access to the Premise!; from the
Landlord's Building unless required to make any 9ucf1 changes by reasen of any federal. state or locsl environmental or
other law, rule. regulation, guideline. judgmenl or order.
SectiOn 11.06: 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 Ine Premises
whioh will contravel'le Landlord's pollei$$ Insuring against 10$S Or damage by fire or other h$%8rds, or whlc'" will prevent
Landlord froftl procuring such poIlol$$ in companies aecel)t8ble to L.andlord at regl.llar f$tos or whk:h wlll In C1ny way caUSG
an increase In the Insurance fates fer IiIny portion of the Shopping Center. If Tell"lant viole~es any prohibition provided for in
the ftrst "ntence of this S4!lotlOn 11.OEl, Landlord may. ~out notlc& to Tenant, oarTect the same at Tenan\'s elCp8nse.
ienant shafl pay to l.iIndlord as Additional Rent forthwith UI'JOl'1 demand the amount of any increase In th$ prer,iums for
insurance 1'QC1J1~l'Ig from any violatIon of the tintt sentenQ$ of this Section 11.06, t!IV$n if Landlord shall have consented to
the doing of or the keeping of anything on the Premlsos w1iicf1 CQnstltuted such a ,,'oIation (but payment of such I'ddltlonal
Rent shall not entitle Tenant to violate the provfslon& of the first sentence of lhis Section 11.06).
Section 11.07: LIMIT OF LANDlORD'S RESPON$IBILITY.
L.andlord shall not be responsible or liable to Tenant for any loss or damace that may be occasioned by or tnrough
the ac~ or omIssions of persons occupying space adjoining the Premises or any other part of the Shopping I~enter or
Landlord's BuildIng, 01' for any loss or damage resulting to the Tenant or it$ property from bursting. stoppage or ~aa/(jng of
water. gas. sewer or ,team pipes or other utility lines or for any damage or loss of property withIn the Pr$mises from any
cause whatsoever. Such limitation of responsibility and liability shall not. however, apply to Landlord's . willf1., I 3CtS or
negligent omis:!iion~, except to the extent the same are wa1V8C1 Or released by TanBnt pursuant to Sections 11.03 lIr 11.04.
ARTICLE 12: DAMAGE OR DESTRUCTION
S9ction 12.01: lANDI..ORD'S DUTY TO RECO....STRUCT.
In ~he event the ~3ndlord's Building is damaged or di!!l$troyed by any of the risks referred to In Section 11.02(a){ii)
ltgalnst Which L.andlord IS obligated to procure Irtsuranee, Landlord shell (!.ubject to being able to obtain all "'~essary
perml~ and appr~v8ls therefor, InclUding without limitation permIts and approv:clls required from any agency or body
administering l!Invlronmental laws, rulGS or regul$tions), within one hundred tweoty (120) days after such dal1age or
destruct'?n (unless Landlorcj te~mlnatl!l$ this Le$se pursuant to Sflctlon 12,03). commence to: ($) repair or re<:onstruct
I.anl1Jord 5 Building end (b) rep"lIr or re<:onstruet .he structural floor slab, demising wall studs (WIthout d/YMIII) an(ll'O()f (or
floor slab abovfJ) 8.$ the ene may be of the F'remiSM. Landlord sl'lall prosecute aI/such work dlll9'&t"ltly to compltJtion. In
no event shBIII.~ndlord be llabh;! f,?r IntMtuptlon to Tenant's business or for damage to or repalt or reCOnstruction I)f any 01
those things whlC~ Tenlilnt Is req~rred to insure Dur;suant to Section 11.01 (<2XIiI)" 1'101' ..hall L~nr;tlord bill requlrOCl tc e)(~1'\d
more for any repaur or reconsrruCtlOn pursuant to thIS Section than the net amO\,lnt of insurance proceeds actually '9CCIived
by landlord al'ld alloeable to the PremIses on a square foot basis.
S8Ctlon 12.02: TENANT'S DUTY TO RECONSTRUCT"
If any item which Tenant is require(! to insure pursuant to Section 11.01(a)(lIi) is damaged or <testroyed b fire Or
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other casualty Tenant shall (subjeCt (0 being able to o!:ltain all n$Q8Ssary p$rmits and approvals therefor, including without
limitation ~lts and approvals requited from Iny agency ot body adminlStelring fl!nviroomentat laws, rules and
regulations) within fifteen (15) days after Landlord has sUMtal'ltlally rapaited or reconstructed Landlord's Building and the
pOrtion of the Premlsea Landlord Is oblIgated to repair or reeonstI'UCt purJuant to $eotIon 12.01 (unless Landlord
terminates this la.sa pursuant to Section 12,03), commence to r~pair or reconstruct such da'!'aged or destroyec~ Items to
at least substantially the uma eondltion in which they were prior to such dam~ Or destruction and prcseCl.ltlil the same
diligently 10 oompletion,
Section 12.03; L.ANDLORD'S RIGHT TO TI;RM1NATE.
(8\ Landlord shall have the option to tarmlnste thiS, Lea~e. upon giving written notice to 7enant of the exercise
tnereofwithin one hundred twenty (120) days after the Lar'lcllon;h 6ulldmg Is damaged or destroyed if,
(i) the Premitil!ls are rendered wholly unf~t for carry(ng an the Tenant's business after damage,to or
destruction thetoof from any cause: or
(il) Landlord's BuildIng is dsmBgfitQ or destroyed as ell rssult of. any flood. earthq~ke, Be:t of W9r.
nuclear relilCtion. nuclear r8cliation or radioactive eontamlf'latlon. or from any otl'ler n!!Ok not covered by Insurar.l:Ie whk:h
Landlord is obligated to procure pursuant to Section 11.02(a)(ii): or
(iii) any damag$ to Of destruction of \..andlorcl's Building OOOl.lrs within the laat three (3) Ye"rs of the
Term or in any Partial YeaI at the $fld of the Term: or
(iv) fifty percent (50%) or more of the GLA In the Lal'ldlord's aullding Immediately prior to thE damage
or destruction Is rendered unfit for carrying on busIness tl1el'eln; or
(v) landlord's eulldlng Is so substantially damaged th$t it is reasonably necessary. in landlord'~
judgment, to demolish the aame for the purpose of tt;lconstructlon.
(b) Unless so ten'l'lin8ted. this Luse $hall continue in full force and effect. ~ Landlord and rer.ant shall
perform their respective obllg$ltlons under Section 12,01 and 12.02, Upon any termination of this lease under anv of the
provisions of this Sectlan 12.03, the Rent shall bt) adjusted as af the date of such termination and the parties shall boa
released from all liability heteunder upon tho $l.Jrrender of pos'8SeiQn of the Premlaes to the Landlol'cl, ~xcept for Items
whleh have been theretofOl'$ $CCl'ued and ara tl'ien unpaid.
Section 12.04; AllATEMENT OF R.ENT.
If Ihis I.ease is not tetmin~ted by Landlord pursuant to Saotion , 2.03 after damage or de.stl'lJdion of the L;lndlord's
81,1I1d\ng. and if the PremlHS are rendered wholly or partially unfit for carrying on Tenant's business by $l,Jc:h damage or
destruction. tI'len the Minimum Ral'lt and the Addition81 Rent payable by Tenant under !:hllll Lease shalf be abated and the
applicable Break Point and Partial Vec.r Break POii'll (as the caso may be) shall be rodueed in direct proportic'n to the
po!rcentage of the GLA in the Premises which Is rent!enlKl unfit for that period from the date thf;, Premises are $0 I'endered
unfit until ~he earlier of sDcty (60) days after l.andlord rs-dellvers possession of the PremISes tQ Tenant or the d$tj~ Tenant
reopens for business.
ARTICLE 13: MAINTENANCE OF PREMISES
Seetion 13.01: LANDL~D'S DUTY TO MAINTAIN STR,UCTURE.
Landlord will keep the roof. exterior f~ of sarvk;:e oonidor wsIl$, structural cclumns and structural floor or tlQOfS
which endo&e t~ Premlse$ (excluding ftoor covet\ng5, such as carpeting, terrazzo and ottw speQiallloor1f19, walls
installed at the request of Tenant, dool'$. windows and glass) In good repair. Notw\th$14lndlng the foregoing pro" $ions of
this Section 13.01, LandlOt'd shall not In any way be liable to Tenant unless Tenant shall have given Landlord wrl\tten notice
of the neces~l~ for such repairs and L4Inc:llord falls to commenee making sLlCh repairs within a reasOn$blo period
thereafter. and provlded that any dam~ neceS$it8ting such repairs shall not have ., caused by the o,niS$ion,
negligence (It willful aet Of Tenant, 11$ CQnoesslonslr",s, Invltee!i, officers, employees, Ilcen$ees or COntractors or by the
failure of Tenant to perform any of Its Qbligatlon& under this Lease (In either of which events Tenant 5hatl be responsible
therefor) or have been caused to any of the Items Tenant ~ required to insure pUl'$uant to Miele 11" Lancllord shall be
under no liability for repai.., malnre~nce, alt8t'Qtion. imprOVement, raeonstructlon, renewal or any othar adion with respect
to the Premises or an~ pert thereof, or any plvmbing, electt1<l81r heating, ventllating, air conditioning, or otn8l' mel:f1anlcal
installation tl'Iereln. except 8S may be exptMsly set f~h in this Lec1lse.
Sedion 13.02: TENANT'S DUTY TO MAINTAIN PFtEMISES.
Tena...t will at aU times, frorn and after delivery of possession of fhe Premises to Teliant. at it!t own CJ$t and
exponse, maintain and make all ne~d repalr9, and do ell other work to or for the Premises and every p$rt tM'lreQf to
~e~dor the '8m~,in good 8n,d tenantable r;onditiDf"l, Tenant's obligation un(2er this Section 13.02 $halllnclude. bu', not be
~'~Ited 10, repaIring, replaeang and otherwise maintaining Item$ as are required by any governmental agency having
JlJnsdlctlOn tt:'ereof (~ethe.. the same is ordin.ary or extraordinary, forellfl.n or unforeseen). walls (other than the !lxterior
!ace of servICe corndOf walls), ceilings, plate glass. utility meter&. pipes and conduits outside thfil Premises wr.ieh arQ
ln$ts~~ .hy or deMi,ed to Tenant or whIch exclusively serve the PremIS9$. 811 fbctul'fil!S, heating, ventilating 3nd ~jr
cond~t~o",ng equIpment Installed by or ~emltiE!d to or ~sed sQrely by Tenant. If any (whether such heating ventilating and air
CO~d~tlonln9 ~ulpment Is located inside tl'te Premises, between tl'\e celll.,g and the roof or on ttle roof ot Landlord's
BUlldl!'9)' sprinkler ~ull'ment ~nd other equipment within the Premises. the storefront or !1otorefrorns" all of TAI'lsnt'" signs,
.securrty grilles or similar enClosures. locks and r;losing devlees. and atl window ~ash, casement Or framelJ, dool'S 'lIrld door
fram~; provided that Tenant shall make nO .adju$tment, ~Iteration or repair of any r;l8rt of any sprinkler, life safety cr other
detection or suppr~sslon system 10 or &eMng the PrerT'lJses Without Landlord's prior at)prov~. Tenant shall pel1"l1it no
wa~te. damage or Injury to the Premises and Tenant shall initiate and earry out a program <1f regular rflpair and other
maIntenance Qf the P~m/eeSj fndudll19 the painting or refiniShIng of all areas of the Intet'lor and the storefront as apl)toved
by Landlord. S? ,I,lS to Impede,. to the extent possible. deterioration by ordiniu)I wear and tear and to Keep the smne In
atttac;tlve CQnd'ti~n: Tenant Will not overload the electrical wiring or otl'ler $yatems aerving tI1e Premises or Wittlln
PremIses, and WIll Install at Its expense. but only after obtaining Landlord'$ wrttten apJ)roval. ~r'ly additionsl elo.::trical wirl~
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or other items which may be requited In 'connection with Tenant's ap~aratus.
s.c:aon 13.03: RIGKtTO ACCf;~ 1'0 THE PREMISES.
landlord and its authorized representative may entel' the Premises at any elnd ~f1 bm$s during usual I,uslness
hours upon fort)R-elght (48) nours not~ to Te~nt fortM PUl'J)ou of Inspecting too SICIme (and at all other tirl\es and
without notil::e in the eese of emergeney). Tenant further agrees that Landlord m.y from time to time go upon the
Premises and make any additioos, alterations, t'Gpaltc or taplacomonts and do other work to tile Pr$J'nilJes 1;1' to any
utilities, systems or equipment located In. above or under the Premises which Landlord may deem nec;:essary or (Iesirable
to comply with all governmental requirements and/or recommen<1atlOn$ of an Insurance rating bureau or of an~ similar
public or private body or that landlord may deem n9C8Ssary or desirable to prevent waste or deterioration In connection
with tho Premlse$ If tho Tencllnt does nQt mak. or cause such additions. alterations, repairs or other work to be Iilade 01'
perlotmed promptly after receipt of written demand fram Landlord. Nothing herein contained shall imply ;any duly on tl'le
part of Landlord to do any such ~ which under any provision of this Lease that Tenant ml)' be required to do. nor shall
it constitute a waiver of Tenant's default In falling to do the same. In the event landlord performs or causes any such war!<
to be perlOl'l'l'led, Tenant shall pay the cost tt\$tllN)f to l~ndll)l'1;l ~t; Additional Rent upon demand therefor. In addltfon.
Landlord may Install, use. repair or replaoe any a~ all maletlals, tools and equipment, and pipes, ducts, Ilondults,
columns. foundations. footings, wltes and oth61' mechanical equipment $81'Ving other portions. tenants and OtX:l.ipanta of
L.andlord's BuUdlng In, through. under or above the Premlf;es that Landlord deems desirable therefor. without the same
constituting an actual Of constructive evlctlon of Tenant. Landlord may also enter the Premises at all times durl"lg usual
business houl1J for the purpo!lle of showing the Premises to prospectl~e purchasers, mortgagees and tenants. No exercise
by L.andlord of any rights provided In SectIOn 13.01 or 13.03 shall entitle Tenant to -'ny damage for any Incon\lenlence.
disturt;Jancli!, 109$ Qf bu$line~s or other d~mage to Tenant occasioned thereby nor to any abatement of ~ent
SKtIon 13.04: CONFLICTS.
To thO oxtont. If any, lh-'I tl'ullre may bo any conflict between this Article 13 and Article 12, or ~tween th'$ Article
13 and Artlcle 22, Article 12. If appll<:abfe. or Al'ticle 22, if applicable, shall prevatl.
ARTICLE 14: FIXTURES AND PERSONAL -=-ROPERTY
Section 14.01: TENANrS P~OPERiY: RENlOVAL.
Any trade fixtures. signs, counters, shelving, inventory, showcase5, miI'1'Q1'$, and other persOnal property of Tenant
not permanently affixed to the Premises shah remain the proP\!!lrty of Tenant. TeJ'\ant Sr'lall "'~v~ the right. providefl Tenant
i~ 110t In default under this l.ease. at any time and from time to time during the TE!I'11'l, t(l remove any and all of its 3el'Sonal
property which it may have stored or Installed In the Ptemi$t;l$. If T$Il$n1. is in defel.llt under this Lease. Landlord shall have
the right to take exclusive possession of suc:h property 1iI1'1d to use such property WIthout rent or charge, and landlord,
whether or not Ir takes posysslon of such prQp$rty. shall have the benefit of any lien th8l"eorl permitted und$C' thn lews 01
the state In which Landlord's BvQdil'tg i5 Ioc:ated and. if such possuslon Is taken or such llef'l is asserted by Landlo'd In any
mannor. lncluding but not limite<' to operation of law, Tenant a!'\all not remoVf;l Of permit th$l'emoval of said trade flxtur.s,
signs or other pEll'$()nal property until such possessIon Is l'elinql,li$he4 or ttIe lien is remove<:!. 8S the case may be. Not"ing
In rhls Artlelo Sl'\i!l1I tJe deemed or construed to permit or allow T.~nt to remo\le aflY of such personal pl'opert)' prll)(' to the
end of the Term Without the immediate replacement th8l'8of with $irniler personal prOPerty of comparable or batta. quality,
or otherwise render the Premises unsuitable for the contlnueel conClur;t I)f TenCil"r$ permitted use thereof. Tenilnt at it~
eXPense shall Immediately repair and otherwise make good any damage occasiQned to the Premises or Shoppin!J Centfilr
by reason of installation or remDval of any such per$oMI proj)erty unlVU such damage is caused by Lancllol'd!)ulSuant to
Section 1 :3.03 and if Tenant fails to remove sucn item$ from the Premises prIor to such expiration or termination, or if this
Lease Is terminated by Landlord and Tenant fail$ to remove such Items from the Premises priOr to the effective date of
such termination, then In any such event all suoh personal property shall thereupon become the property of Landlord,
without furtl'ltlr act by either party hereto, unlH~ Landlord elects to r.quire all or .. portion of such Irem$ to be rerr.oved by
Tenant In which case ienant .shall proml'tly remove the items destgnat$d by Landlord and restore the ~mises to Its prIor
condition at Tenant's axpense,
Sed'on 14.02~ IMPROVEMENTS TO PReMISES.
All impr'l)vernents made to the Premises by TElnant. including, bul not limited to. the Items furnished punuant to
Tenant:Si Work, alterations., ehan~s and addltlQn~ by Tenant, light fixtvre!3, floor covertngs and partltlons, heating,
ventilating and air-conditionIng eqUipment, m8d1anrcal and !)lumbing equipment. but exducling trade f1xtutes and signs
and ~th~r perso~al propol'ty '~ified In Section 14,01, s~1I become the property of landlord uDOn CllCplration or e3t'Iler
term..n$,llt1on of thIS Leastl; proVIded. however, that l.andlord ma~ deSiQO<e by written notice to Tenant, prior to ~.enant'$
making such alterations. those alterations. cl'langes. and additions made in the Premises after the Rent Commencement
Date which shall be removecI by Tenant at tM expiration or tarmination of this Lease, in which event Tenant shall at
Tena~t's sole cost and expense promptly remove the same and repair and othal'Wise make good the dama~! to the
Pl'@m,ses caused by such removal or by the installation of sueh alterations" changes Or addition,.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
Section 15.01: PROHIBITED.
Tenal1t shall not permit anyone other than Tenant to occupy the PremiSes Or any part thereof and $ 1811 not
transfer, assign. sublet, enter Into license or concessIon or other ocovpancy or U98 agreements or mort~age Ot
hypothecate this Lease ~ ~ Ten~l1t's inter:e~t I" and to the LN$e or the Premises or any part theroof (horeln COlI~ively
ref$rrQd to :as "Tran.$f~r ~ WIthout first obtall'lmg In each and every instance the prior written consent of L.andlortl which
L.t1ndIOrd may w1thnold In Its sore dlsct8t/on. Any attempted T fCl"'sfer without such prlor written consent shall be all Elf t
~ O:~I.lI~~ shall not be binding upon Landlotd, shall confer no rights upon any third person and shatl not r'$Iieve Tenan~
S 0 '98 IOns under this LQse. Any transfer by merger, col'llllOlidatlon liqUidatiOn or otherwise "'v nnara..... f I
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August 24, :!OO5 \ MostJ~ 23
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InChJdlng, but not limited to, an asslgnmenl for tile benefit of credltor5, a$ Well a$ any transfer, a&$ig1lment, or
nypo1h~io" of tiny ,tQCk or general partnership interest in Tenant so as to resultln a changA of th. control me'OOf, shall
be inoluded in the term "Transf..... for the purposes of this Lease and shall be a violation of this $eotioo 15.01 and an
event of Default, except as otherwise speclfleally SAt forth in this Aniele 15. Consent by landlord to any Transfe- snail not
constitute is watver of the necessity 10r such consent to any subsequent Transfer, 'I" the eVeI'It of a ~lttecl Tta1"l$fer,
i ensnt agrees nevertheless to and ahall remain fully liable for the full performance of each and every obligation Jnder this
Lease to be performed by Tenant and the assignee shall be deemed to have assumed, and agreed to be bounj by all of
the terms of this Lease. In the event of any proposed Transfer, Tenant shall deliver to Landlord written notice (rM
"Request Notice") requesting Landlord's consent tel the proposed Tranafer at lust thittY (30) day$ pnOl' to ~M d8te on
wI'lich, with landlord's prior wrttten consent. the Transfer would be effeCtiVG. TM ~tlque$t NotiQe shall contai1. without
limitation" at 'east: (i) the full identification of me proposed transfel'M: (II) tna moat reeant linand81 statements and other
evideflQe of the tram;fer..'s financial I'esponsibitity and business performance: (III) the transferee's proposed specific use
and businesIJ propo,od to be conducted at the Premisf;lf,l; (iv) the scope of any proposed alterations to the storem)/it of and
within the Premises; and (v) th8 monetary and non-monetary terms and conditions of the propoucl Tr$l"I$fer, l...andlofd
shall have the right and option (the "Talc...~ Option"), eXlrclsabla by L8odlord giving Tenant written notIee within thirty
(30) days after Landlord's reC$ipt of the Request Notice of reaequi!'int;J the Premises or portion thereof which Is the subject
01 ttle proposed Transfer and termineting this I.ease with respect Ihereto. 11 L.ar'ldlon:t elects not to exercise the lake-back
O~tion and elects to give LandlOtd's written consent to the pn:IpOAad Tral1sfer. then Tenant shall pay to landl(1tc:: forthwith
LlPOn Tenant's receipt. as Additional Rent, all sums and other eoonoMic consider1ltion (whether by lump sum j)ilyment or
otherwise) rl!lC8ivecl by Tenant In any month as a result of the TransfM whether denominated rentals or otheMise which
exceed, in the aggregate, the total sums V\I1'li<;1'1 tenant Is obligated to ~y .and dO$$ pay Landlord under this Lease in the
same Month (ptorated to reflect obligatIons a1loeeble to that portion 01 1M Pl'8l'1'llses Which is the subject of the 'rranS;for),
all without affGCtil'lg or reducing any other ooll~tiOt'I Of Tenant hereunder praVided, that In the case of an as&I~lnment of
this Lease such AckIitiQnal f{ent payment by Tenant to Landlord shall equal the entire consideration for such a$;~gt'\ment.
If landlord giVes Landlord's written consMt to the proposed TraM'ar and the Tl'8r'1afef Is not made (includirlg without
limitation. delivery of possession by Tenant to and occupancy by the l'tOr)osed transferee appmvAd by l.andlclrcl) within
thIrty (30) dayS after the date Landlord giVEts its written consent to the ptOposed i\'lll"l$fer, then Landlotd'a writtell consent
and the Transfer st1a11 be automatically null, void and of no force or effect wl'l3tsoever, The Take--back Option st an not be
8xhauatlKl by .anyone exerelN thereof by l.andlord but shall be elCert:isable from time to time and as often as there Is a
proposed Trensfer, The Take.baek Option may be exerclsed by any Mtlgnee of Landlotcfs right, title and inte"'..t In this
Lease or any Other person which at the time of the Request Notice Is Landlord under this Leese. If after receiPt of the
Request NotiQ8 Landlord requ8Slt. addiUOnal or further Information which Landlon:f reason81b(y requires to C01'1Sider the
proposed T~lJfer. Tenanl shall deliver such Information to Landlord upon Landlord'$ request therefor and the ,,.,;00 for
Landlord 10 exereise the Takeback, OP1iOl'l shall be extended by the number m claya between I.andlord's requent for and
L.andlord's r"BCSipt of suc:h additional or further Information. Tenant shall pay to Landlorcl the sum of Fille Hundred
($500,00) Dollars 10 dem-yLandlord's adminlstratlve costs" overhs8d and counsel fees in connectIon wittl the
consid....tiofl. review and doeul'l'lent preparallon of any proposect acaigl'll'l'lent or sublettlng, such $Um to be pllld at tt'le
time Tenant delivers tho assignment and aS811mptiOr'l agreement executed by tI'\e Q$slgnee and asSignQr.
ARTICLE 18: DEFAULTS BY TENANT
SectJO" 16.01: EVENTS OF DEFAULT.
This Lease is M$de upon the COndition that Tenant shall punerually and (uithfully perlorm 4Ind fulfill ;all of the
covenants. condllloM and sgreemftn~ by It to be perforMed as in this Lease set forth. In addltlol'l to events elsewhere
stated in this Lease as Events of Default. tM following shall be deemed 10 be an Event of Dofaulf (each of which is
sometimes referred to as an ~Event of ~ult. In thIs I.ease):
(a) the failure by the Tenant to pay Minimum Ront i\nd/or Percentaga Rent and/or Additional Rent ot any
Installment or year~nd adjustment thereof If sueh (ailure contInues fOt twenty (20) day$ after written notice tt,9ftlof by
Landlord to Tenant; or
(b) ttle faUul'8 of Tenant to submit its. Design ~wings on or before t~ Oesign Drawings Submisaion Date In
accordance with Section 2.03(c) or commence Tenanf$ Work on or before the Construction Commencemenl Date in
accordarn;e with the terms and conditions of Section 2.03(<1); or
(c) the failure of Tenant to open its business to the public In tl'!e !:'remises on Of prior to the date 1m which
Tenant Is required to open lt$ business to the public pursuant to the tetr\'lS ancl conditions of Section 2,04, or the. failUl'e to
open the Premises. or 16 keep the Pr~mjaes open. on the days aM hours required by this l.ease. or jf Tenant V~1Cat" or
abandon$ the Premises; Or
(d) the failure of Tenant to observe Ot perform any of the covonants. terms or conditions set fo~h in I\rticle 15
(relating to assignment llInd subletting); or
(e) the sale or removal of a substantlall'OrtiQn of Tenant's (;lroperty located in the I=lremises In a manner
which is outside the ordinary course of T .nant.s buslne&s; or
(f)
l1ereof; or
the failuro to maintain Inventory levels and employee staff In accordance with the provj~ions of Il.rticre 7
.. (g) repeUtlon or continuation of any failul'tl to timely pay any MlnlmLlI'l'l Rent and/or Percentage Rort and/or
AdditIonal Re~t or other $l,tms reserved hereunder or to timely report ~~e StllQ iI$ provided in Sec::tion 4.00 hereof
wh~re such f:i!llure shall oontlnue or be re~ted for two (2) consec:utive months. or for a total of three (3) months in any
Q$f,od of tlMalve con$etuttve months; or
(h) .repetition of any ~lIlIlIura to observe or parfQITTl any of tne Lease covenants, terms or conditions more than
three (3) tlmn, In the aggregate. rn any period of twelve (12) consecutIve months: or
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(i) any other failure of 1 enant to observe or pOOOfM any of the other covenants. terms Of c(R'lditions set forth
in this Lease where saiel failure continues for a period of 1""t'tV (30) days after wrttton notk:e thereof from Ultldlord to
Tenant (unless such failure cannot r8ssonably bit cured within thirty (30) days and Tenant shell have commenced to cute
$l!Iid failure wlthln thirty (30) days and continues diligently to pursue the ouring of the same until completed); or
(j) the commenoer'ner'lt of lavy, execution, or attachment proceedings against Tanant or Guarantor (hereafter
defined) or a SI,II;I$Wintial portlOr"t of Tenant's or Guarantors ss&ets; the commencement of levy, I!Ixecutlon. attacnment Of
other process of law upoli, Oli or against the estate created in Tenant hereby. the application fot or the appointment of a
liquidator. receiv$l'. custodian, sequestrator, conservator, trustee, or other similar judici<ll officer fOr Tenant or GUElrantor or
for all or any subst8\'1ti.1 !)art of the l)toperty of Tenant or Guarantor (sl'ld $ouch appointment continues fDr a J:)eril)~ of lhlr'ty
(30) days); the in,olveflC:y of T$nant or allsranlor of Tenant in bankruptcy or aqulty sense; any assignment by Uenant Of
Guarantor for the benefit of creditors; Ot
(k) the commencement of 8 case by or against Ten$nt or Guarantor, under any insolver'lcy, bar'lkl'1Jptcy,
creditor adjustment or dobtor rehabllltatlon laws. state or federal; or the delermlnarlon by thfJ Tenant or GUElT8ntor to
request relief under any Insolvency proceeding, Including <Af\y insolveney, bankruptcy, creditor adjustment .,r debtor
rehabilitation laws. state or federal, and 'n no event shall the premises or Tenant's Interest In this Lease bet;ome an asset
in any such proceedings; or
(I) notwith,Winding the TMant'!! obligation to pay Minimum Ront and/or Percentage Rent liIndlor J\dditional
Rent as of the first day of each month during the Term, in the event that an Insolvency, bankl'lJptcy or similar proceeding is
filed by or against tM ienant or any Guarantor. tne Tenant shall be obligated to pay all such Minimum Rent and/or
PerQentaga RMt and/or Additional Rent on a ratable basis from the date of ttle commenc&ment of any such proceeding
!hrougn the end of the month In which such proceeding Is commence(!.
Section 16.02: LANDLORD'S REMEDIES.
(a) L.andlord may trelJlt any event of Clefavll a$ f.I meterisl breech of this Lease_ l.li1nl;IIQr(1's fsilum to insist
upon strh;::t performanee of any (:Ovenant. term or condition of fhi& LeaM or to exercise any right or remedy it hill, herein
snail not be deemed a waiver or rell~uishment for the Mur. of SUCh performance, right or remedy_ In ~dition to any end
all other rights or remedies 01 Landlord In this Lease Of ~t law or in eQuity provided. Landlord sh$ll h$ve the follCMing tights
and remedies if there shall ~r any Event ot Oefault l"IOI"IEt of Whieh $1'1,,11 be construed as an el$Otion to forego nny of tne
other remedies tl'lel'l or in the Mure:
(I) acceletate the whoh,t btlance of Rent. :!Ind all other $l,JI'l'l$ ~yable hereunder by TenlJrtt, for the
entirebalanee of 11'10 Tt!lrm, or any part of SlJ(:h Ael'lt and ottler ,urn,; and/or
(II) to terminate tnls Lesse, and to r1Hll'lter tl'l$ PremiSes and take ~osse$$iOn thereof and t;;l remove
all p4!1i'SOM 81'1d COtltent$ therefrom, and Tenent !,ItI$1I have no fvrther claim or right hereunder; and/or
(iii) to bring $uit for the collection of Rent and for damages without entering Into posMSslon of the
Premises or termtn"ting this l.ease; and/or
(Iv) to terminate Tenant's right of possession of the Premi&8 by tiummary l)roceeditJgs or ctherwise,
without terminating this Lease. In the event of any re-.ntty and termination of pO$a$stiion, Ul.,dlOl"d shall have the right
but not the obligation 10 remove any pel"llonal property from the Premises and either treat such pf'Qperty as abanfjoned. ot'
at t..andlord's option, place the same In storage al a public: warehOuse at the 51)1$ eO$t. expense and risk of thll Tenant:
and/or
(v) to enter the Premises and without further dem$r'1d or notice pfOc;eed to distress and si.le of th~
goods. cI1attels. petSonall't'OpMty and other contents there found and to levy the Aent, and Tenant shall ~ all I;O$ts and
officGr$' eon-u'I"Iis$ior'ls, ine/l,Iding watchmen's wages and sums chargeable by Landlord, and furtht!lr il"lcludinQ charges
whleh l,andlOtd may impOse by statute as commissions to the constable or otner pArson making the levy, ancl In such
easeS all costs, officers' QOmml$slons and other charges shall immedlat&ly attaeh and become part of the claIm of
landlord fOr Rent, and any tender of Rent without saId costs, commissions and charges m$de, Elfter the issu~lnce of a
wat'l'~nt of distress, sl'1~1 nQt be sufficient to satisfy me claim of laneSlord,
(b) Coni_sian of Judament - Rent. Tllnant coveMnts and agrees that if there is an Event of Oefaurt. then
Landlord mey, without limitation, eautie judgments for money to be entered a~inst Tenant and, for those purposes,
Tenant hereby grants the follOWIng wll'M'an1 of attorney: (I) Tenant hereby irrevocably ~uthorizes and tlmpcriYers Bny
prothonotary, clerk of court, attottiey of any court of record and/or LandloM (s, well $8 someone acting for Lanello'd) in any
and all actions commenced agaili!ilt Tenant for recovery of the Rent and/or ather amounts to be paid to lal'ldl(Jl'd t,y Tenant
to appear for Tenant, and assess damages and confes~ or othatwjse Anter judgment o1Igainst Tenant. Jor all or fJl1Y part of
the Rent and/or other amounts 10 be paid to l.andlord by Tenant InclUding, wit\'l(ll,lt limitation, $Urns under SectlOk'l16.0~(tl).
together with interest costs and an attotneys' commission of five pereent (5%) of the full amount of such Rent, amounts
and sums. and thereupon writs of execution as well as attachment may forthwit/'l iS$ue and be served, WIthout any prior
notice, wrIt or proceecllng whatsoever except as may otherwise be reql,Jlre<l by applicable law; (U) the WB~nt of attornBY
herein granted ,hall not be exhausted by one or mOt'e exerei$u ~ but Sl,l~sive actions may be Clomme"ced and
successive judgments may be confesSed or othelWlse enterld against Tenant from time to time as often as any of the
Rent and/or other amounts and sums $hall fall or be due or be in IfTears. and this W8"ant of attomey may be mcercilled
after the termination or explratlon of the Term and/or during or after any extensions of the Term or renewals of thilji Lease'
and (iii) the provisions of Section 16.02(d) are incorporated herein by this reference thereto. '
(c) Confession of Judamont - PossHslon, Tenant covenants and agrees that if there is an event of
Default or thit> l$$$e is terminated (It the Term or any $l(tel"l$kms or renewals therBof i$ terminated or the Terll or any
extensloos or ranawala thereof Is tcrmtnatBd 01' expires, then. and in addition to the rights and remedies set fOM iI' Section
16.02(b), Landlord may, without limitation, caUSE! judgments In ejactment for possession of the Premises to bE' entered
against Tenant and" tor those purposes, Tenant hereby grants the folloWing warrant of attorney: (i) Tenant hflrahy
Irrevocably al,lthorlze~ and empowers ~y prothonotary, clerk; of court, attorney of any court of rec:wd and/or Landlord (as
well as $QfTleone acting for L..tndlord) In any :;lind till! actions commtt'~d fOf" recovery of po$"G8ion of tho Premi:Je;J to
ap~ar for Tenant and confess or otherwise el'\ter judgment i" ejectment for PO$$EISSion of the Premises against Tenant
~nd all persons claiming" dlreetly or indirectly by, through or under Tenant, and thereupon wrIt of pOSSession may forthwith
Issue and be se""e~, WIthout any prior notice, writ or proceeding whatsoever except 8S m~y otherwise be reclJJred b
"'pplleable law; (II) if, for any ra~son after the foregoing aenon or actlon$ shall have been eommen"'''"'d "t hall lo~
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August 24, 2005 \ MostlJTF
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determmed that posse$$lQn of the 'Pr~is" should remain in or be t8&tored to Tenant, LandkJrd ~ha" have the right to
commenc:e one or mor$ further aetlons as l'I$telnbefore $$t ronn to re<:Over possession of the Premise8 including without
limitation appearing for Tenant and confessing or otheJWist1ll entering judgment for possession 01 the Premises as
Mrelnbefore set forth; and (iii) the provisions 01 Section 16.02(d) aM Incorptlfllted I'lerein by this reference thereto.
(d) In any action or proceeding described in Section 16,02(b) and/or Sec:tion 16.02(0), or in c01ner;:tion
therewith, If a copy of this L.oe,e la lheteln verified by Landlord or someone acting for Landlord to be a true an~). c~ec;t
copy of thiS Lease (and SUC/"I copy shall be conclusively presumed to be trlle and correct by virtue of s.uch V~r.lcatlon),
then it shall not be r'IeOtlSsary to file the origlnal of this L8ale, any statut8. rule of COurt of law, C1.I$tom or practlc:e to tM
contrary notwtthstandlng, Tenant hereby releS$Q$ to landlord, anyone actin!;! for landlord end all anomey$ viho may
appear for Tenant all 8ITQnI in procedure regarding the efltrY of Judgment or JudgmentS by c::onfession or 0~he1'WlSe by
virtUt;! of the warrants of attorney contained in this Lease, (ilnd all liability therefor. The rtght to efltet judgment or ju~gmenls
by confession OT OtherwiSfl by vIrtue of the warrants of attomey contained il'l lhls Lease and te) enforce all of lhe ortler
provisions of this Lease may be exercisad by any assignee of Landlord's right. title and interest In this L.ease in such
assignee's own name. any statute, rule of court or law, custom or practice to the contrary notwithstanding,
(8) Tenantexpresslywalves:
(i) TM l;lenaflt of all laws. now or hereinafter in foree, exempting any goods in the Pral'l'lIS9S or
elsewhere from distraint It!vy or sale In any I~I !)roeeedlngs taken by L.Mdlotd to enforce' any nohts under this L'ilS5Ei.
(il) The b8neflt of all laws now mede or which may hereafter be made l'Elgelrdlng any limitation 8$ to
the goods upon wtlich. or the time within which. distress is to be made aftet the remove! of goods, and TOM"t further
relieves Landlord of tne Obligatlon of proving or identifying such goods; it bftif1Q' the purpose and intMt of IMls prov slon th.at
all ~ods of Tenant whether upon the Premises or not, shall b8 Hable to distress for rent
(iii) The righl to Issue a writ of replevin for the recovery of any goods sei~ under a distress for Rent
or levy upon an execution for Rent. damages or otherwi~.
(Iv) The right to delay execution on ~ny real estate that me.y be levied upon to collect ~)' amount
whlOh may become dl.Ce l,mdet tM terms and oondltk)n$ of th~ LeaH and any nghllo have the same appraised, The
~lhonoWy or Clerk of Court i$ hereby authorized and empowered by Tenant at l.t1nc:llotd's instance to enter a writ of
execution or other process IJpon Tenant's voluntary waiver and f1.Irther agrees that said real estate may be sold Of! a writ of
execution or other process.
(v) All rights under Act of April 5, 1957, No 20 and all supplemenl$ and am~tndments IheretQ, hereby
$uthorUlng lhesale of any goods distrained for rent at any time after seven (7) days from $sid distraint without any
appraisement and c:ondemnation thereof.
(vi) 'fhe rigl'lt to three (3) months and/or thirty (30) days' notice required under c8rtain circumstances.
or any other notice requiMd 01' otherwise provided by sbatute as a condition to the commencement of ~ummary
proceedings or an {lotiOn fot pos.seaslon or to the temlination of this Lease or any retaking of JXlSs8Ssion, T8nal,t hereby
agreeing that the respective notiCe p$l'lods provided for in this Lease shall tHa sufficient in any suth case,
Soctlon 16.03: OAMA.GES.
(a) If Lal1d1ord elects to terminate Tenant's right to ~O$$8S&iOI'l under this Lease, but not to term nate this
Lease, Landlord may relet the Premises (or any part thereof) for the ;Iceount of Tenant at such rent-..I$ and u,xm t;uch
tl!ll"TTlS and conditions as Landlord shall deflll'l'l ElPpropriate (which may be 169$ than or exceed the balance of ttoe Tl!Irm),
and to the ext.nt Landlotd receives the Rent therefor, Landlord shall apply the same first to the payment of such ',xpenses
as Landlord may have ineurted In recowring possesSion of the Pr8mlses (inclUding, without limitation. legal expenses and
3ttofne~' fees) and fot putting the Premises into good Qrdet and conditlon and repairing or remadelir'19 or altetlng the
same for ;eretling" and any other ej(penses. QOmmiUior'\~ and cnarges paid. assl,Jl'I1~ or inourred by or on behalf of
Landlord In connectJon with the reletri1'lg of the Premises (collectively the "Camof Rutting"). and then to the li,llfillmel'lt
of the covenants or Tt;!nent under this Lease. Tenant shall pay to Landlord the Ftent up to the time of such termination 01
Tena"t's right to pOssel!isiOn ul'ldet this Lease. and thereafter, TenantC;:O\f8nt1nts lOpay landlord untU ttJe end of the Term
of this Les$e tM ~ul\r.llenl of the amount of Rent under this Lea$t;lle$$ 11'1$ net avails of such reletting, if any. (luring the
5~me ~d, and the same shall be due and payable by Tenant to Landlord on tM datN such Rent Is due L'nder this
L.ease. Arry rel$ttil'lQ by Landlord shall not be consrru@ld as an election on the part of the Landlord to terminate thi$ Leasa
unless a notice of such intention is givfi!n by L4'nCllol'(/ to Tanant. Notwithstanding any reletting without terminati,n of this
Lease, Landlord may at any time thereafter eleat to terminate this Lea$$. In any 8VeM, Landlord shall not be liable for, nor
shall Tenant's ObllgatloM hereunder ba diminished by reason of any failure by U1ndlOl'd to relat tI'Ie Premises or Eny fal/ure
by Landlord to collect any sums due upon such relenlng. Tenant shall not be entitled to any Rent racsived by Lnndlord in
exces.s of Rent provided for In this Lease. Landlord may file suit to recover any sum$ faDing due under tI1e terms of thitl
subsection from time to time, and no suit or recovery of any portion due Landlord hereunder shall be a clefen';e to any
SUb$equent action brought for any amount not theretofore reduced 10 judgment In favor of Landlord.
(t!) 11 I..andlo,:, .1801,5 to t!rl'l'lln~te tI'li$ Le$$tlI il'lstead 01 terminSltlng only T8nant's right to possession,
Landlord ~h~1 have ~he right to Imrne~h$tely recover against Tenant as damage$ for loss of the bargain, $nd not as a
pvnatty, ~ne excess (if any). as determIned by landlord. of (I) the present value of the projec:;tecl Rent payable by Tenant
l,Inder ttllS I..ease (a5 determined by Landlord on the basis of the amounts of Additional Rent which would have been
payebk;! pursuant. to this Lease for the full calendar year prior to the calend.-, year In which the default ocellrrecl, increasing
annually on the first of each yaar a1Wr such calendar year at the rale of six percent (El%) per annum compourded) that
wou~d !'lave ac:~ for the balance of the Term plus any other amount necessary to eomper'l~te Landlord for aU
detnm",~ts proxlma~eIy caused by Tenant's failure to perform its Qbliglitions under this Lease, including reasonabltll
attOmE!y s fees and Interest on 3/1 sums dU8 LandlOrd at the Default Rate (hereafter defined), less (Ii) the thenl)rK$l'lt f$ir
market rental value of the Pre~.lses for the balanee of the Term as reasonably determined by l.andlord. taking intf) account
among other things. tM e01'ldllron of the Premises, market condItIOns and the period of time the Premises m~:y remain
vaOsnt before Landlord Is able to relet the l!Iame to . !;IuI1~b'e replaeement renant, and the Costs of Relett1ng (~$ defined
abov~) tnet L.andlord may lnour il'l order to enter Into a replacement leaae ("B.neftt of the Bargain Damages").
Notwith:at8ndlng anything to the eontrary contaIned In thi$ L8ase. if, subsequent to the termination of this LeSSI! and the
r~overy of oamagcas from Tenant pursuant to thi$ $ubttctlon (b), l.andlordrelets the Premises for an etree'ive Rent
hlghor or Iowwilr than the Rent a$,:;umed fOf purp03es of caloulatlng the Benefit of the Bargain Damages the Be"'~fIt of rl'u/!
BargaIn Damagc!lS !ill1all not be recaloulated and LandlOrd shall be entltl8d to retain all of the proe$Gd$ of ~uch rele'jing.
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(c) The "Default Rate" meant the rate of Interes.t wnlCh i$ tMee percent (3%) over tI1e announced prime rate
of PNC Bank., PnMadelphN:l, pennsylvania or aJ'\y $l,Iceessor thereto or ctl'1er bank selected by Landlord,
Section 16.O.t: LANDLORD'S SeLF~HELP.
In addition to Landlord's rights to self-help ~t fonh elsewhere in thi$ Lease. if Tenant at any lima falls te perform
any of Its obligations under this Lease tn e manner reasonably samfaotory to I..andlord, Landlord s~BlI hao"e the ight, but
not the obligatIOn. upon gtving Tenant at lea$t tt\reo (3) days prior Wl'ltten notiCe of Its election lo do SQ (in lne event 011i1ny
emergency no prior notice shall ~ required) to p$rform such obligations 00 behalf of and for the aceount of ien$nt and to
take all such action to perform such obllgatlons. In $l,.ich event, Landlord's costs and expenses inCurred therein shall be
paid for by Tenant at> Additional Rer'lt, fonhwlth, upon demand therefor, with Interest ther$Jn from the data Landlord
performs such work at t~e Oefault Rate. The performance by L.lii'Mlord of any sueh obligation shall not eonstltute :, release
or waiver of T anant ttw;II'$ffom.
Seetlon 16.05: Le.GAL EXpENSeS.
(a) In the event that Landlord should retain counsel and/Qr in!ltitute any suit against Tenant for vtolation of or
to enforce any of the covenant$ or conditions of this Lease. or should Tenant Institute any action against LandlOrd for
violation of any covenants Qr conditions of this lease, or should either pa~ Institute a $ult .in$t the other for a
dedaration of rights hereunder, or should either party intervene tn any suit in which the other is a party, to e,force or
ptQteet its Interests or righl$ hereunder, the prevaAing ~ in any such suit ~alf be entitled to all its costs, expenses and
rellsonable fees to its aft01'ney(s) In connection therewltn.
(b) In the event that a bankruptcy proceeding is filed by or against Tenant under any chapt.,,- of the
Bankruptcy Code. or T9I'laOt makes an assIgnment 10r the bMeftt of credltor.;l or commenc:es or otherwise bee,,"., the
subject of any 10000vency, receivership or similar proceeding, landlord ,han be entltled to recover it. reasonable attorneys'
fees and cost& incurred In e>r In conneotion with any such proceeding from Tonant or any trostes, cul!ltodlan" receiver.
assignee or other representative acting on lis behalf. an of whioh fee$ and expenses shall con$titute, In addltltm to any
other" sumS due and owing under this L.ease (I) an obligation 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
Seclion 17.01; LANDLORD'S DEFAUL f.
Except li$ othftrwlae provided In this l.e~", Landlord shall be in default under this Lease if landlOld tail$ to
perform any of i~ obligations hereunder and said failure conunues for a period of thirty (30) days after written notiC:a
thereof from Tenant to landlord (unless such failure cannot reasonably be cured ~nln thIrty (30) days and l.anc;llord $haIl
nave commenced to CUI'$ $#)id failure within said thirty (30) days and contlnues dUigently to J,'lUl'$lJe tM eurlng of the same),
If Landlord shall be in default under this Lease and, If, as a conS$<ll,lenea of such default, Tt;tnsnt tohall ~er a money
judgment ~Inst landlord. such judgment &1'IaI1 be satisfied only out of the proceeds of sale received upon e)('~tIon of
such judgment and levied thereon against the right. title and Imerest of Landlord in the Shopping Center as the lisme may
then be encumb6red and I.$(ldrQrd Shall not be liable for any defi~noy. In no event shall Tenant have the ri, ht to levy
executiOn against any property ,,1 u.ndlord other than landlord'$ riSht, title and intereet in thlll Shopping (~enter as
I'lerelnbefore expressly provided. No default by Landlord under this LeaSe ~halt give Tenant the right to tern'lnate this
Lea:sl!'l.
Section 17.02: TRANSFER OF LANDlOItO.S INTEREST.
In the event of the sale or ottler transfer of Landlord's righi, title and interel'St in the Pren'll$8$ or" \he Shopping
Center (except in the case Qf a ~''-''''$'I:Il)Qk, fin$neing transaction In which Landlord is the lessee). Lanc:lOrd shall
transfer and assign to such J;lUrchaser or transfer" ar'ly j)OrtiOn of the Security Deposit which may then b3 held by
L..andlord pursuant to Section 2,02 of thi$ I.~!I$, ~nd Landlord therl!lupOn and without further aet by either party h.lf'eto sf'1al1
be released from all lIabKIty and obligations hereunder derived from thi$ Lease arising out of any act. occurrence or
omiACIon rebating to the Premises or thi$ Lease occurring .r th$ consummation of such r:ale or transfer. Tenant shall
have no right to terminate this I.ease nor to a~e ~ent nor to deduct from nor set-off nor counterclaim ~llnst Rent
because of any s:ale or tn1Insfer (induding without limitation any tiial~aebaek) by Landlord or Its grantees. 8UC(:e8Sors or
assigns, Neither Landlor'th mortgsgae (or its designee) nor" the purchaser at a foreclosure sale shall be liable to Tenant
for the return of Tenant's S$eurlty DepO!lit unless and until Landlord aebJally delivers the Security Oeposlt to such
mortgagee or purchaser or their dElsignee.
ARTICL.E 18: SUBORDINATION AND ATTORNMENT
SectJon 18.01: SUBORDINATION OF LEASE.
Tenant agrees that, except 8S hereinafter provided, this Lease Is, and shall always be. subject and sub(.rdinate to
~I1Y lease wherein landlord Is the lessee and 10 the lien of any or all mortgages or deeds of trust, regardless t.f whether
such lease. mortgages or deeds of trust now exist or may hereafter be created with regard to all or any part of the
Snopp~ng ~enter" and to any and alt 3dv3nces to be made thereunder, ar"ld to the Inten)st thereon. and all mocifl(l8tlons,
consolidations, renewals, replacement$ and ell:tensions thereof. StIch subordination shall be effectiVe w,tl'1Qut the
execution of any funher IM~ruMt!!I~t. Terililf'lt also agrees that any lessor, mortgagee or trustee may eled to have this
Lease prior to any leaae or Iren 0( It$ mortgage or deed of trust, ~nd in the event of suoh election and u~on notHie.atiOl'l by
such lessor, mortgagee or trustee to TaMnt to thet effec:t, this LeaH SMail be deemed l3f'iar in lien to the Solid lease
mortgage or deed of trust, whether' thl$ LeElse Is dated prior to Qr $ubsequent to the date of said lea$e mnr+n"ga or deed
~~~ ' -~
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SKtlo..- 18..02: TENANrS ATTORNMENT,
In the event of $flY foreclosure of, or the exercise of a power of &ale under, any mortgage or t;lee~ of trust refefTad
to in Section 18.01 covering the Premi..s or In the event ot the termination Qf a"Y lease referred to In Sectlc,n 18.01
wherein L.3ndlard ia the lessee. Tenant, upon tne purchaser or lessor's request, !ilhall attorn to and recogrlize the purchaser
or l.andlord's lessor as L.andlord under this Lease,
Sectlr;m 18.03; INSTRUMalTS TO CARRY OUT INTENT.
Tenant agrees thEil, upon the request of Landlord. or any such lessor, mortgagee or trustee, Tenant snail execute
and deliver whatever instruments may be reqlJlT'ed for such purposes and to carry out the Intent of thia Article 11l. and in
the event Tenant fails. to do $0 within thirty (30) day' ~fter demand In writing. Tenant shall be deemed to have ec mmltted
an Event of Default.
Any document executed by Tenant evidencing such subordlnliltiOn SMIl provitkJ thlilt Landlord's mortgageE' or such
purchaser shall not be liable for any action or omission of any prior lendlord (Including l..arll~lord) uncler the Lease, subject
to any off' sets. claims or ~ense$ whiel'l Tenant might have against prior landlord (including Landlord). bound by any Rent
which Tenant might h.ve paid for more than the current month to any prior landlord (including Landlord). boufl4~ by any
amandment Of mod~tion of th$ Lease or any other agreement concerning me L.ease made witho~ mOl'lgagaa's written
consent or responsible in any way tOf' any security deposit whioh was dt!Ilivered to LandlOrd but wall; not sUDsequently
delivered to SI,l(lh mortgagea or purchaser.
ARTICLE 19: ESTOPPEL CERTIFICATES
Set;tion 19.01: TENANrs AGREEMeNT TO DELIVER.
From time to time wlttlin thirty (30) dlily$ after rGquGst In writing therefor from 1.andlord, Tenant agrees to execute
and deliver to Landlord, or to !)I,lQh other addrG"" Of' addressees as l.andlord may ckJt;ig~to (and Landlord and :my such
addressee mlilY rely tl'\ereon) , a statement In writing In form and substanoe satisfactory to landlord (here" callee!
"Tenant'. Estop". Cllrtltlcet.~), certifying at; to sueh matters as may be reasOn$bIy requetited by landlOrd. Tenant
expressly agrees that Lan<llord may ~ign its interest in the Tenant's Estoppel Certlficlate to i15 lender(s) 8t 81'1y lime who
may act In material reliance thereon.
s.etlon 19.02: FAILURE OF TENANT TO PROVIDE.
In the event U1li1t Tenant fails to provide IS Tenant's Estoppel Certificate within thil1y (30) days after I..:mdlord's
written request therefor, Tenant shall bEt d$eli'led to have committed an Event of Default.
ARTICLE 20: QUIET ENJOYMENT
S.-ctlon 20.01: F"FTHFUa:.. PERFORMANCe.
Upon p8ymentby the Tenant of the Rant herein provided for, al'ld upon the observance and performanC(l of all of
the agreements. covenantEi, terms and /;:OndltiOli1$ On Tenant's part to be obl!l8l'\led and performed. Tenant shallp.~ably
and Quietly l'Jc)ld anc:r enjoy thll! Pr&mi$~ for tl'te Term without hi~ranc. or ln1erruptlon by Landlord or any other ~erson or
per$ons lawfully or equitably dtlirning by, through or 1..U'lder Landlord, subject, nevertneless, to tl'l8 terms and eOMltlons of
this Lease, ~I'I(I mortgages, '$$$E!!S and other mat1ers to whICh this Lease Is subject or subordinate.
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21 "01: DelIVERY AfTER TeRM.
Tenant shall deliver up and surrender to LandlOtd poSsessiOn Of the Premises upOn the expiration (Ir earlier
terminatlon of the Term, broom clean, free of debris. in good order. condition and state of repair and in compliance with
Section 14.01 (elCcepting l.andlord's obligation undel' this lease. damage by casualty and ordinary wear aM t~lar), and
shall deliver the keys to the management office of Landlord or to such other place as may be designated from tim li! to time
by notice from Landlord to Tenant. If not sooner terminated as herein Provided. this Lease sh~l tel'T'ninate at the e,d of the
Term as provided for In Artkle 3 without the necessity of notice from either Landlord or Tenant to tenninate the same.
Section 21..02: ~FFECT OF HOLDING OVER; RENT.
If Tenant or any party cJ$iming under Tenant remains In possesl:lon of tM Pram/$es or any Pl!lrt thereof, after any
expiration or termination of this Le$$e, no tenancy or Interest in tM Premi~s shall rMult therefrom l;ll.lt Sl.ICh holding over
shall be an l,.InlalNful detall'le( and all SlJch parties shall be subjact to Immediate ouster and removal, and (a) Tenant shall
pay upon dGmand to lar'l(l/ord for any period when Tenant t:i"aU hold the F'remhsec after the Term has terminated or
expired. as liquidated rant for /,Juotl period, a sum equal to all F'ercentli'lge ~ent Sind Additional Rent pl'O\llded fur in this
I.ease plus an amoum com~uted at the rete of double the MinimUm Rant for Such perlod. and (b) Tenant shall irldemnify
and ~old h~rmles~ ~~ndtord from all, 105$, cost, expense and liability wMtsoever resulting from $uc::t'l holdllg over.
Includrng, without I1rrlltrng the genar=hty of the foregoing, any claims made by any sueceedlno tenant based on such
holding over,
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ARTICLE 22~ CONDEMNATION
Sec.tlon 22.01: ALL OF PREMISES TAKEN.
If the whole of the Premj$eti shall be taken or condemned either permar'lently or tempotarlly for any :)ublic or
quasi-t)Ubllc U51;! or purpose by any eompetent authority in awoprlatlon I'roc;eedlngs or by any right of eminent d :lmain or
by ~m8nt or CQnveyance In lieu thereof (each being hereinafter referred to as KCondemnatton"). thIs Leilse shall
terminate as of the dW possession shall be raken by such authority, *nd Tenant shall pay Rent and J)8I'form atl of its olher
obligations under this LM&A up to that date WIth a prQpOrtlonate refund by Landlord of ~ny Rent as 5\'lall have beEn paid in
advance for a periOd suba&quent to the date of the takil'l9 of possession.
Section 22.02: LESS THAN ALL OF PREMISES TAKEN.
,
If Jess th~n all but more th$J"l twenty-flve percent (25%) of the GLA in the Premises IS taken by Condemn~ 000. or if
(regardless of the pel"cll!lntage of the GLA in the Prem1S6$ whiCh is taken) tile femalnder of the Premises cannot be used
tor the carrying Or! of Tenant's busiI"lEl$$, rhen In either event l,.al'ldlol'd or Tenar'lt shall each hElve the right to terminate this
Lease upon notiee In writing to the other l3arty within ninety (90) days after pos$$$slon is taken by $l.Ie~ Condemnation, If
this Lease Is so terminated. It shall termin:al$ a$ of the day ~ses$ion shall be taken by such authority, and Tenant shall
pay Rent end perform all of Its obligatlons under rhis I.ease UP to that dale with a proportIonate refl,lnd by Landlcrd of any
Rent as may have been paid in a(lvanee for a peI'lod su~eque"'t to the date of tn. taking of posse5&ion. If this Lease i$
not so tem"linated. it shall terminate only with respect to the p.ar1! of the Premises sO taken as of the day of ~tSsess\on
snail be taken by suct1 i1UthOfIty, and Tenant shall ~ Rent up 10 that d.;Iy with a l)I'oportlonate r$fund by Landlcrd of any
Rent li'l~ may have been paid for a period 5ubsequlll.,t to the date of ;ueh taking and, t/'lEiteafter, the Ren! and the
aP\lli~ble Break Point shan be reduced in direct proportion to the amount of GLA of the Pre..,...es. takan and Landlord
agrees, at Landlord', ecat and expense, :as SO(lI'1 as reasonably possible h~ tMtore the Pr8mises on the land remaining to
a complete unit of similar quality and c:haracter as elClsl~d prior to such appropriation or taking (to tlit!J 4tl<tent feasible);
provided that Landlord shall not ~ n;tQl,Iired to expend more on such restoration than an amounr equ itl to en.,
condemnation award received by LaI'1dIol'd (IM~ all expenses, oo.t3. (,egsl fees and court casts incurred by L~,ndlon;l in
connection with such award).
Section 22.03: SHOPfl~MG CENTER TAKEN.
If any part of the ShOpping Center is taken by CondemnatiOt'l $0 88 to render, in Landlord's judgment, the
remainder unsuitable for use as an encloseQ mall ~hot:lping center, Landlord sh~lnave lne right to terminate tllis l.eS$e
upon notice in writing to Tenant within one hundred twanty (120) days after possession is takAn by sueh Condemnation. If
Landlord sO farmlnates this Lease. it sl1~1 terminatll!l as of the day possession is taken by the eondemnlng aut/'lority, and
Tenant &I'lall pay Rent and perform ~II of its atI"Iat obligations under this Leue up to that date with a pr09Ortlonflte refund
by landlord of any Rent 3S mliiY have ~n paid in advance for a perIod sub!J&quent to such possession.
Section 22.~: OWNERSHIP Of AWARD.
As between Lal1cllOrd and Tenant, all damages for any Condemnation of all or any part 01 $hoppin~ Cer"lter,
includIng. without limitation, all damages as compensation for diminvtlon ir'l value of the leasehold, rever$ion snd f~, and
Tenant's leasehold improvements, shall belong to tne landlord without any deduction therefrom for any presenl or future
estate of Tenant, artd Ten$nt hereby aAsigns to landlord all its right, title and Interest to any such award. A"l,ough all
damages in the event of 8ny Condemnadon al'8 to belong to the LandlOl'd, whether such damages are aVt'8rded 8$
COn'lpensatlon for diminution i11 vall,ls of tho kYsohold. reversion or fee of the PremlsM, or Tenant's leasehold
Improvements. Tenant shall have the tight to claim and reeover from the condemning ~thQ/'Ity, but not from Landlord.
such com~nsatlon as may be s8parateJy awarded or recoverable by T el'\3nt In Tenant's own right for or on acco ~nt of any
cost or ell;pl!ll'Ise whiM Tanant might Incur In removing Tenant's rnerch,ndlS8, furniture and flX\Ures. proviied sucl1
compensation dO$$ !'lOt in an)' way dIminish tne eompensation otherwise availal)le to I..andlord.
ARTICLE 23: MISCELLANEOUS
Section 23.01: INTERPRETATION.
(a) The captiof)$, table of content, liInd index of defined tarms appearing In this Lease are Inserted only as a
matter of convenience and in no way amplify, define, limit, Qon$ttue, or descrIbe the scope or Imant of such S&ctlons of
this Lee$e nor in any way affect ""Is Le&$e.
(b) If mOf'$ than one person or corporation is named as Landlord or Tenant in this Lease and eXl!.cutes the
same as such, or beCOmes LandlOrd or Tenant, then and in SUCh evet'It, the words Kl.andlord" or "Tenant" wherevlll' used In
this Lease are intended to refer to all such persons or corporations, and tn. liability of &uch poriSOns or corporatloM for
comf)liance wlth and performance of all the terms. covenants and provisions of this Leljl!jfil ,llIi:dl be joint and several.
(C) The neuter, femInine or m~sCUllnt!! pronoun when u!ied herein shall each Indude each of the other
genders and the use of the singular shall include the plural.
(d) The parties herelo agree that all the prOvitiiOI'\S Of this Lease are to be eon$trl.led as eovellants and
agreements as though the words Importing such covenants and agreements were used In eaeh $ll!lparale provision herElQf.
FurthermOt$. e~eh eovel'lant. agreement. obligatIon and other provls:lon contaIned tn this LUll. i$. and 5t'1~1l bl! daemed
anCl construed as a ~parate end independent covenant of the pany boufI(I by, undertaking Or mlilke the sarTW. and not
depE!I1dent l)f1 any other prOVision of this Lease unl$$s $",prEt$$ly $0 provided,
. (e) Although the prov~sion8 of this Lease were drawn by I..endlord, this L.ease shall not be constrll$d for (lr
against I.andlord or Tenant, but thiS Lea$8 shall be interpreted in aClXlrdance with the general tenot of the 18nQ\lage in an
effort to reach the Intended fl!lsult.
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'Section 23.02: RELATIONSHIP OF PARTIES.
Nothing I'lereln cl;)rltained shall be deemed 01' construed by tne pl!ll'ti85 hereto, or by any third party. as creating the
relationship of principal and agent or of partnership or of Joinr IIMttJre bet.Waen the parties hereto. It being understood and
agreed that neither the method of computation of Percentage Rent. nor any other provision contaIned herein. nor any acts
of the parties herein, shall be deemed to create any relatienshlp between the parties I'lereto othBl' than the rela'lonS~lp of
landlord and lenant I10r cause Landlord to be responsible in any way for acts, debts or obligations 0' Tenant.
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Section 23.03: NOTICES.
Any notice. demand, request, approval, COll,ent or other instrument which may be or is required to be gillen under
this Lease shall be In writing, and, Sl'Iarl be d88t'n(!(I to have been given (a) when mailed by United State~ r"5iatered or
eeliifjed mail. return receipt requested. postage I)t$paid and received or refused by the addrel!iS4M, Of (b) whc;n lIent by
COurier guarantying overnight delivery, addrcK~ to \.andlord Of Tenant at the respectlva addresses set 10rth in the
i=l,JndamentaJ lease Provisions and/or such Qtf'ler address or addresses as either party may <I&signate by notice to the
other in accordance wlth thil!: SectIOn and reoeivec:l or refused by the addre!!:s". Any notlea by the t...andtord ma~' be given
on its behalf by AgAl'\t or by an attorney for I.andlord or Agent. Any r'IOtioe properly asnt to Tenant shall ~I deemed
effectIve whether or not a eopy is sent to the address deslgnate<:1 In tne Fundamentalleat;e P/'()visions to receive a copy of
such notice.
s.crlon 23.04: SUCCESSORS.
This Lease and the covenants and CClnditions herein contained shall Inure to the benefit r:d and be bif1l:Sing upon
(subject to Article 17) landlord, "-$ i!1I.IC(:$SSOrs and assigns. and shall be binding upon Tenant, itlil heirs, SUCC6:JSOI'S and
a$slgns and shall Inur. to the benefit of T$I"I8nt *nd only such assigns of Tenant to whom the assigl"!ll1ent by Tlmant ha&
beEtn consented to by LAndlord In wrlIlng. Nothil'lg In this Section 23.04 shall be dMmecl to ff!tquire landlord t(I give any
sueh eot'lsent. All of T\1nsnt's obIlgatlons durIng the Term pursuant to Section 4.05. 4.06, 4.07, 5.01, 5.0~, 7,03, 8.03.
11.03 and 2~.17 sht;\1I $urvive the expiration or earlier termination of this lease.
Section 23.05: BROKER'S COMMISSION.
Tenant warrants that. $xcept for Agent. it has dealt WIth no br~er in oonnection with thIs Leasa, and age-es to and
shall d8fC!nd. Indemnify and save Landlord harmless fr(Jm aU claims, actions. damages. costs and expenses IIlld liability
whatsoever. Including reMOl'lsbla attorneys' fees, that May arise from any Qlaim by or through Tenant for 8 cornmlsslon.
finders or like fM In eol"lnM;tion with this Lease. landlOl'd s~1I ~ the fee or commlssioo due Ag@lnt i.n eonJ'l$ction with
this l.ease,
Section 23.06: lJ"AVOIDASLE DELAYS.
In the event tnat either party hereto shalt be delayed or hindered in or prevented from the Performance ()f any act
required hereunder by n!ll!l$cm of strikes, lockouts. inability to prQiJUre labor or materials, fa~l)re of power, 'estric:tlve
governmental laws or regulatiOn$. riot?s. insurrection, war (whether actc.lal or threatened). lack of access to the Shoppmg
Center due to evacuatlon: daMage or governmental order. rite Or othet Cilli1ualty or other reason 01 ill similar or dissimIlar
l'laltJre beyond tt1e reasonable! col'ltrOf of the party delayed In perfl)m'ling work or doing acts required under the tenns of this
LatiN, then performance of SlJOI'l act. but not Tenant't; obligation to pay Rent. shall be excused for t~ p~riod of the delay
ana the ptIriQ(l fC)r the performance of any suc::h $Ct shall be extended for a periQc:f eql.Jivelent to the period of !KJctI dela)'.
During Tenant's COI1~ttrJctlon PerlOCl tne Pl'l)vi~ions of this Seetlon 23.06 ,/'Jail not operate to e)(~ Terilnt from
complotlng eonsttucticn of the Premu::es within Tenant's Construetlc)1'l Period I.II'Il$Ss lenant g1vM written l1otioe of the
delaYing event to Landlord within ten (10) deys of the occurren~ Q( such delaying event. Such written notice sh~1l1 spedfy
the naful'$ of the delaying event and tI'I~ number of days of delay claimed to result thl!i'l'e'rorn, Tenant's eorlstruetion
Period shall be extended for a period equivl;Ilent to the petlod o1l,1ctu~1 delay. After the Rent Commencement Oate the
provisions of this Section 23.06 shall n<lt excuse Tenant from thl;! pt"Qmpt payment of Re1'It artd all other sums due by
Tenant under this L.ease and such delay shall not extend the Term. Del~ or faYuI'Gs to perform r8sultf~ from lecK of
funds 01' the unavailability of a partiC:L1ler contractor or personnel shall not be deemed dera~ beyond the rdasOn.ble control
of a pa~.
Section 23.07: SEVI;RA8ILITY.
II is the Intention of the parties herAto thst if any prOVision of this L.ease Is capable of two construction 3. one of
whiC:h would render tho provision invalid and the other of wnloh wOUld render the provision valid. then the prOVi:iion shall
have the meanIng which renders it vallet If any term or provision. or any poI'tIon thereof. of tnit; lease, or the allplication
ther$(Jf'to any person Of circumstances shall, to any ex\ent, be Invalid or unenforceable. the remainder of this Lem;e, or the
appliC41tlon of such term or proviSion to the petsonll or clrcum!tances other than those as to which it is held invalid or
unenforceable, shall not be aHeded thereby. and ElQQh term an(l provision of It'lls le$lie shall be v$ljQ and be er'lforced 10
Ihl;! fullest extent permitted by law.
s.ctlon 23.08: TIME OF ESSeNCE.
Time i$ of (he es~ence with respect to the performance Of the respect/va Obligations of L$ndlord and Te,nant set
forth in tnls Lease. '
S&C;tlon 23.09: OTHER TENANTS: RELOCATION O~ TERMINATrON.
(8' Landlord reserves the abSOlute rfght to effect aueh other renanel" in the Shopping Center as Landlord
shall. d~termjne il'l the exerclse ~f its sole business judgment. Tenant hcire.oy acKnowledges that (I) thIS Lease C(u':t8ins no
restr:ictJve covenants, or el(oIuslv9$ In favor of Tenam; (Ii) this L~ shall not be deemed Of interpr~tecl to contain oy
tmpJfI::allon Or otherwrse. . any warranty, representatlon or agreement on It'te part of Landlord that any department $tor~ or
reglo~al or natlon.~ ~aln store or any othM meronant shall open fat business or OCCUpy or continue to OCCJ en
premises In or OOjoll'1Io9 the Shopping Center durlng the Term Qr any part l~reo1 or that Tenant $1'1811 generate S. ~~rtal~
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amount of Gross Sales or that any ~mbursable amount payeblo by Ten4'lrit aha.1I be afty specific;: amount. a.,d Tenant
hereby expressly waives all claims Witl'l rMpect thereto and acknowledges that tenant is not relying on any suo~ warranty,
representation or agreement by Landlord elther as a matter of inducement in entering into tl'lis Lease or as oonditiOn of this
Lease or 3$ a covenant by Landlord,
(b) Deleted.
Sec1lon 23.10: APPliCABLE LAW,
The laws of the state in which LandIOfd'$ BLlllding 1$ located shall govern the validity, performance and
en10rcElment of this Lease. If either party Institutes legal suit or action for enforcement of any obligation contaired herein.
It is agreed that venue for such suit or action shall be In the state in wl'1ich the Premises are located.
Section 23.11: WAIVER
(a) Tile waiver by Landtord of any term. covenant, agreement or condition herein contained stall not be
deemed to be a waiVer of any subsequent breach of the same or any other tarm&, covenant, agr1t8ment or condi lion herein
contained. The subsequent acceptance of Rent hereunder by Land/crd shall net be deemed to be a wal'/er of any
praeedlng breach by Tenant of any term, oovenal'1t, agreement or eondltlon of this Lease, other than tl'la failure of Tenant
to pay the particular Rent so accepted, regardless of L,rt<llord's knowledge of suoh prfJQllding breaCh at the time of
acceptance of such Rent. No covenant. term, agreement or c::ondltion of th~ Lease shall be d$8med to I'lavfl ht-en waived
by Landlord, unl"s such waiver be In wrttlng and executed t)y landlord.
(b) No waiVer of any covenant. term, egreen1ant or condition of this l.e$tie 6t legal right or reme.ly shall be
implied by tl1e failure of Landlord to dAdare a forfellul'e, or for any other reason. No waiver by Landlord In respect te one
or more tenants or occupants of landlord's Building or any other part of the Shopping Center shall c:onstlMe II welver in
favor of any other lenai'll. Landlord's consent to. or approval of, any act by Tenant requlr1ng Landlord's IlOnsent or
approval shall not be dl!Jgmed 10 waIve or render unnecessary Llllndlord', consent to or approval of any subsequent similar
act by Tenant. No consent or ElP!)roval by UlIndlord shall operate to change any eonclltlon, requirement or other provision
of thIs Lease on any occasiQn vnle$$ mada In writing and executed by a gener$1 partl'lar (or eXGeullve officer) of Landlord,
Section 23_12: ACCORD AND SATISFACTION.
No p8ytllent by Tenant or receipt by Landlord of a lesser atilount tt'lan the Rent herein stipulated shall t16 deemed
fo be ather than on account of the earliest stipulated Rent nor shan any endorsement or statement on any ch IIQk or any
letter ~mpanying any slIeh check or payment as Rent or the Ul(e be deemed an accord and satisfaction, an:l Landlord
may accept such dleck or payment without prejudice to Landlord's rigl'lts and remedies to recover the balan;e of such
Rent or pursue any other right and remedy provided for In this Lease or available at law or in equity. If Landlord !Shall direct
Tenant to pay Reflt tQ a -loekbOx. or other depository whereby checks Issued in payment of Rent are InitIally cashed or
deposited by a person or entity other than Landlord (albeit on Landlord's authority) then. for any and all purp<.ses under
this Lease; (a) l.andlord shall not be deemed to have accepted such payment until nin$ty (90) days aftAr the dat! on which
Landlord shall have actually received $ur;h funds, (b) Landlord shall be deemed to hiIV$ accepted Sl,Iol'l pAyment If (al"ld
only If) within said ninety (90) day period, Landlord shall not have refUnded (or attfilmptecf to refl,lnd) such ~Iayment to
Tenant and (I:) Landlord $hall nat bA bound by any Gt'ldo~omont or statement on ~ny ~ Of any letter ~)n'lpanylng
any check or payment and no sucl'l el1don.$mr;m1, $b1tel'l'lenl or !error shall be. deemed an accord and Siltisfacticn.
Landlord or Landlord's bank fTlay ~pt such oh$ck Qt' !)8yMAnt without prejudice to Landlord's right to n~ver the
balance of such rent or ~ue any ottler I'f;lmedy provided in this Lease. at law or In equity. Nothlngconta oed In the
immediately preceding sentence shall be construed to place Tenant 11'\ defatJlt of Tenant's obllgatJon to pay Reftt If and for
so long as Tenant shall tImely pay the Rent requIred pursuant to this L.eBse in the manner designated by Landlord.
Section 23.13: CORPORATE TENANTS,
In the event the T8flant hereunder Is a corporation. the t)8I'sons executing this Lease on behalf of the Tenant
hereby covenant and warrant that: the Tenant i$ $ d1.lly COnl$tituted eorporatiOl"llluallfled 10 do bUalne&lI in the stat. in which
LandlQn:f's Budding is loCated; all Tenant's franchise, corporate and other lienable ta~es nave been paid to datfl; all future
fOn'l'l$. rl)pol't$, fees and other doouments necessary for Tenant to comply with applicable laws will be fMeeI by Te-nant when
due; and suc:t1 persons are duly authorized by the governing body of such corporatiOn to 8)(8CUtEI and deliver this Lefte
(in(:luding the warrant and/or power of attorney provisions contained in Sactlot'l1 8.02) on behalf of t"$ OO~'n.
SctctfDn 23.1.: TENANrS GUARANTOR.
Oeleted.
Section 23.15: ~ECOROING.
Ihi~ Lease snail not be recorded: nowever I..anglord shall have the right to record a short form or me Tlorandum
thereof, at Landlord's expense, at any time during the term hereof, and Tenant shall executa same.
Section 23.1 &: AGENT OF LAHDlOt(O,
Agent has acted as an agent of Landlord in connection With the execution of this Lease and Shall not in any 91191'1t
be heir;! liable to the Landlord or to Tenant for the fulfillment or non.fulf'illment of any of the terms or condltilms of this
L.ease or for li'lIFlY action or proceeding that may be taken by yndJord against Tenant or by Tenant against Landlord Any
waiver 01 Ulnd~ord'g liability tMJraunder, .Includlna any waiver of subrogatIOn fights, &MII Ctpply with equal fQl'"l;ie and .t
to, and as a waIVer of any liability of, Agent.
Section 23.17: HAZARDOUS MATERIAL.-
(a) As used herein the term "hazardous matlrlal" means any flammable. axploslve, medical, human or
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. anjmal tlssu8$ or substances, I'Iazardous 0( tOllie substaoo8. material or waste (Including. w1thoot limitation. asbHtO$. and
chlorofluorocarbons) which ~, been. or in the future is, determined by any state. federal or local governmental a .Jth(lrity or
:any law, ordinance, statute, gQvernmli'fltal rule or regulation to be capable of posing a rIsk of Injury to healtn, &afety or
property lind/or the use, stOl'~ and/or dispoaal of which i$ regulated by any governmental authority, Indudln~. WIthOut
limitation an of those materials and substances designated as hazardous or toxic by the local government having
lUri9di~1"l OVet the Premises, the U.S. Environmental Protection Agency, the Consumer Products Safoty Commission, the
Food and Drug Administration or any other goverT\mental agency nfYW or hereafter authorlz.ed to regulate mab!lrlals and
substance. Tenant shall not oause or permit any h~rdous mat~rial to be installed in the PremIses as a part o,r TMant'&
Work or otherwise brougnt upon. used, kept, stol'f;Id Qr disposed of In or about the Premises or the Shopping :::enter l:ly
Tenant, its. agents. employees, eontrac1Ors or Invltllte$. Nctwltl1standing the foregoing, Tenant may handle. stOl'i!', use and
dispose of products containing IImall quantities of hazardous materials (such as aerosol cans containing InseeUeltjM, toner
for copiers, palnl$, varnishew; and cleaning $upplies) of Inslgnlflcant quantities stored In seal$d eontain$r'$ and used in
accordance with manufaeturars' I'Oquirements.
(b) If the Premises, any equipment (inc;:luding, wltl10ut limitation, HVAC equipment), trade fixture:. or Qther
mechanical appsr~ll,lS therein oontaln any I'r.Iz3rdous materi~ls installed by Tenant, its agents, employees, eOl'lttaCtors Or
Invitees, landlOrd, lilt its election, shall have the rlght to (i) ~I,l'e lenant to remove and property dispose of same, all at
Tenanl's sole (:O$t and expense, in accordance with appliQ$bl$ 18W and means and methods approved In a(lIIal'lOe by
landlord and ita professiofl31 consultants. and LandlOrd shlilll h~ve the right to monitor such work or (11) perlorm the
removal and disposal ther$of itself. in which event Tanant sPlaIl (lOmply with IlII1 reasonable requirements Imposad by
Landlord with respect to the perfoonance of sueh work, inl;:ll,I(1lng wit!'1wt limitstion closing the Premises for business and
remaining closed during tl'te performance of such work, and Tenant shell ",Imbur$e Landlord. on demand. fo' the cost
incul'1'ad by Landlord in perfQrmlng such removal (ineludil1g landlOrd's CO!ilt of professional consultants), .
(c) Tenant shall:
(i) Promptly provide Landlord with copies of any document, correspondence.
report or communk;:ation, wri\'tI;In or oral, relating to hazardous malerlal,
at Of affecting the ShOpping Center (I() to or from any regulatory body, or
(y) stating a basis for any f)OMnti$1 lil!lbnity or r_pon$ibillty of Tenant.
Landlord, or the Shopping Cent.r; inc:luding alf 51,1ch documents,
correspondence, repoM or communlcatil:ms prepared by or on behalf of
Tenant. In addltlon to the above, atl..andlonfs request. Tenant shall
provide capIaS of eny and all records and communications wI'lat~vQr
relating to hazardous materi$Is ~ or 8ffecl1ng the Shopping Center.
(ii) ImmedIately notify L.andlord In the event of a suspected or c(ltttll'\Tled
release of 8 hamrdous material or vlolatfon of enVlfOnmentaJ 1~ lit or
affecting the Shopping Cent.,. and caus.e by or rOlalGd to (1'14\1 optmltions
of Tenant, its emploY"$. contraetOl'$. agents, Or AI'lY ~ acting on
behalf of Tenant and. at Landlord's 100e option, either PfOl'nptly remedlate
or correc.t such release or vlolatlon to LandlQrd'$ qti$htction or reimburse
Landlord'$. cost of remedlallon (il'lOluding "e.,onable attorneys' and
consultilnts' fees) all as ~t forth in (b) above: and compeMalt! Ulndlortl
and/or third parties for all resultant damage.
(Hi) Permit LandlOl'd reason$bIe aet;ess to the Premisos for tria purpose of
conducting an environmental audit or testing. the cost of wf'tich s~all be
borne by L.andlord unles$ the results Indicate activity prohibited by
enviTonmentall8W$ or hereunder,
(d) In accordance with tl'le Occupational Safely and Health Administration Asbestos Rule (1995) 09 ~ed.
~eg, .40964. as amended and supplemented ("OS...,.. AltMtstos Rul."), l.andlord hereby notifies Tl;UIsnt of the ~e$ence
or possible presence of asbestos containing materials ('"ACNs") and/or presumed asbestos containing materlal~
("PACMs") (as sueh terms are defined In th$ OSHA AsbestoB ~l,Ile) within the PNmisM or adjoining enclO$lkl oommon
areas. If any. The ACMs and PACMs may take the form of pipe wrap, vinyl a$O$$to$ flooring, sj:l~ on or trowt.!!ld on fll'e
proofing. acoustical plaster, insulation, texturACl ceiling paint and other forms, The specific location of any ""eMs or
PACMs Within the Premi$es or adjoining Common Areas may t)e :ascertained by T$~ntrequesUng in wri':ing from
Landlotd,. without cost or EllCpense to Ttlnant, the applicablE! pOrtions of any environmental impact survey conc'ucted by
Landlord regarding the Shopping Center. The purpose of Landlord's notlfJc.atlon is to make Tlnant, itS agents, olnployees
and contractors aware of the presence or possIble presence of ACMs ..,d!or PACMs In lhe Shopping Cf!lnter iI" order to
avoid or mlnitnia any damage to .or dlsturbar'lC$ of such ACM$ and/or PACMs dur/I'1Q ttle progress of Tenarlt's Work
snd/Of ConstructiOfl Work. Tel'\ant shall obtain a slgnad aoknowt"grnent from its agents. .ml=Jlo~s and ecnttac::tors
wori(~ng In or abOut tt1e Premises indic3tlrl\j that Sl.lch agents. omployees and eontraotors are aware of the preSf!n(:l!l or
Po~slble presence of ACMs and/or PACMs Witl'lin the Shopping Center and agrMil'lg not to disturb the same during the
~:lIarlormance of Ten~nt's Work and/or Construe1ion Work. At UI1dlord's request. ionant shall deliver to Landl(ll1;1 copies
of t;uch signed acknowledgments.
(e) Tenant shall comply with all applicabla GOvernmental Requirements affeetil'lg the Premise$ t~ l)j)$ration
of Tenant's bUSintl5!J at 1M F'remi$es. al'ld the use and removal of any substances tt'lerefrom, including, without I mitatlon,
hazard?,-,s materiar~ installed by Tenant, It' agents, employees, contractors or invitee,. Such O)(I'Ipllance shall include,
Inter alia; (I) the filing by Tenaflt of all governmental applications ~fId regHlitratiOns for all SUbstenoes uaed stored
manufactured, ~etated or otherwise ifl the Premi$es: (ii) the obt31nil'lg of all licenses and permitt with resped'thereto;
(Ill) thE! .timely fl.lrng from .ti~B to tlmo,. all reql,l/rod, of ~1I r~orta and other matters reqUired to be file<l with gov4l-nmental
authorities having jurlsctietion; and (1\1') notifying each of its agents. employees al'ld oontractor's of the p~.ence or
presumed presence of ACMs E\nd PACMs within the Shopping Centar as set forth above,
I (f) Tenant shall protect. defend. Indemnify and hold Landlord harmless of from and ~jn5t all claims
:' Or'ls, lien$" demands, costs. damages, punitive damages. 8ltpenSe$. fines ar'ld judgm~n~ (including legal costs afld
Y orneJY9 f"-ell) InCUrred by reason Qf any actual or a~s8f'tt)d failure of Tenant to fully Clomply with theprl)vision" of thl.
ummy "!)an apitalCIty-Final ~ 10
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Section 23.17 and/or spillS or other contamination of air, soil. or water by or resulting from any hazardous materials
Installed by Tenant, Its agents, $mployeeS. contractors or l"vltMB at ot' around the Premises or the ShOpping Center or
resulting from remov$l tf'torf!lQ(
(Q) Upon thirty (30) days prior W\"itten request from l.andkltd, TMant shall execute, acknowledge and deliver
to Landlord a written statement In form satisfactory to l.8ndlord certifying (i) if true. that Tenant has not dispot;ed of any oil.
graue. tOXIC. or nazardoYs material, filt the Ptf!II'1'lisR or (II) that l;Iny liIuch su~tanees used. processed or g8f'Wlnlted at the
Premises hl!Ve been diaposed of properly In accordance with all applicable Governmental ~equl...m.nts. If Tenant is
unable to c;:ertIfy either of the abOv~. Tenant shall so notify l.$ncI10rcl and gtve Landlord the details resulting In Tenant's
inability to 50 certify.
(n) Tenant shall surrender the Premises to l$ndlOrd upon the expiration or earlier t$l'mlnarlon of lhis Lease
free of hazardOua materials brought thereon by Tenant and thOM aeting on Its behalf and in a condition whlct complies
with all Govemmental Requirements, recommendation$ 01 (:Onsultants hired by landlord. ar'ld such other r'~onsble
reql,lirement~ a~ may be Imposed by Landlord.
(I) This Section shall $lJl"\llve the expiration or sooner termin$tion of this Lease.
Section 23.18; FllttAlIZATION OF CHARGES.
Notwithstanding $nything to the contrary contained in this Lease, Tenant's failvre to Objec::t to any l:tatement,
tnvo~ or billing rendered by Landlord within ~ pcIrlod of one hundred twt'Inty (120) days after reoelpt th~lreof shall
OOflstlMe Tenant's acquiescence with respect thereto and shall render such stiltl!lmMt, Invoice or billing a final and
binding account stated between Landlord and Tenant Landlord and Tenant Intend that the foregoing provision shall
s1,lpe~e any right to audit or request back up documentation from Landlord which may othenNlse be ptO\Jlc 8d by this
I.ease and the foregoing provIsions are not Imended to grant IIny such right to Tenant not Qtherwi$e mcpre!ialy ~ltovld8d In
this Lease,
Section 23.19: PRIOR LEASE.
Deleted.
Section 2J.20~ FINANCIAL. tNFORMATlON,
Tenant shall at any Umc and from time to time within twenty (20) d,aya of written reQuest from Landlord deliver to
l..andlord $ueh flJ'lQneiallnformatlon concerning Tenant. Guarantor and Tenant's and Guarantor's business opEiatlons as
may be rl!!qul1l$'Gd by Landlord, any mongagee or prospective mortgagee or pu~set or prospeetl\/e purchaset'o
Sec:.1lon 23.21: SPRINKLER CHARGE.
Deleted.
Section 23.22: NOTICE TO MORTGAGEE.
If tn., holder of any mortgage wI'lich hall Blian agBinst the ShOpping C9ntM or any part lher90f fO/Wards to Tanant
written not~ of ttte existt;ll'lce of such lien, the" Tenant sh811, sO long allsueh mortgage Is outstanding, be r~uj'ed to give
to such Iil1lnhOldet the $ame notlca and o~portunity 10 eorreet any default as IS required to be given to . landlord under this
Lease, but such notic);! of de1al,llt may bEl given by Tenant to undlol'd and sue" lienholder concurrently.
Sec;:tjQn 23.;l3; WANER OF JURY TRlAL
Landlord ~d Tenant hereby waive all right to a trial by jury in any litigation related to this L.ease inc uding any
mandatory counten::IBim or cross claim.
s.ctlon 23.24; CONFtOENTlALllY.
It ~ aQreed and understood that Tenant may acknowled!;je only tI'Ie exlstencl of this Lease by and between
Landlord l;Ind Tenent, end that Tenant may not dlaoloae al'ly of the tetms and provlsiona contained in this lease to any
tenant or other DCCUpl,'nt in the Shopping Center or to ~I'ly agant. 6mployee, $ubtenant or S$signee of such tenant or
OeCUP81"!t. tenant acknowledges that any breach by Tenant of the $IQl'eemel"lt$ Get forth in this Sectloo 23.24 shall cause
Landlord irrep$r$bhit ~rm. rhe terms and provisions of this Section 23,24 shall survive lhe tenninatlon of Ihls Lease
(Whether by I~l)$$ 01 time or othelWise).
SliId;iQn 23.2$: RlGHT OF FIRST REFUSAL
As a speeifieally bargained for right hereunder, If Ten8lit makes an assignment for the benefit of creditc:rs files or
suffers the. tHing against !t. of 8. petition under any oh$pter of the United States Bankruptcy Code, or if proceed'lngs for
reorganizatIon or composition with credltor'$ I.Il'1der snyfederal or state law ara Instltutad by or against Tenant 31"ld Tenant
Of Tenant's tru$~ee (as the case mayb$) $ubsequently atteMpts to a$sign tl'li$ Leese or Tenant's interests In 'hls L6aSSJ
pursuant to 11 U.S.C. ~ 365 or otherwise, L~ndlord shall have the right of first refu$81 to purel'laae liInd assume :his l$B3~
and Tenant's Interesls thereunder (COllectively '7enant'. Leu.hold Int.......) upon the following term9. and ccnditions:
a. If Tenant receives a bcna fide. arm', I~gth offer to purchase Tenant's Leasehold Inl$f"ests (lhe "Third
flarty ?'IV). which Third Party Offer Ten$nt or ienant.s trustee (as the ;ase may be) cIoems acceptabl$, ienant or
Tenant s tI\Istee shall first, delIVer a copy thereof to Landlord ("Landlord's Rt=R Notice"). Landlord shall there.iter have
the ri.g.l'lt to assume and acquire Tenant's Leueho/cllnterests dr::acrlbed In Landlord's RF~ Notice on the same "erms and
condItions as set fonh in the ThIrd Party Offer.
Yuml'fl)'Japsn-Capita'C'ty..Fln;\lll!
August 24. 2005 \ MostlJTF
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. , b. WltI'lln thlny (30) days following Landlord's regelpt of Landlord's RFR Notice. l..andlord shall nolify Tenant
or TtJnanl's trustee (as the ~ may be) 'n wrltlng of Landlord's Intention to exercise the right of refusal ':0 acquire
Tel'lant's I..easehold Interests or be deemed to l1ave WliIived such right of first refusal with reJPGCt to tr'le transa<:tion
describ$d in 1,.$l'ldIQrQ'$ RFR NotiCe, 11landl(lr(l timaly e)(ercIses landlord's .rlght Of tirst re1U$.111, Tenant 01' Tenant's
trustee shall be deemed to be contractually b<)ul'J(l 10 S$II and assign Tenam's Leasehold lntere$t$ llIxelUSlvAly tu Landlord
in accordance with !he terms and conditions set forth in t~ Third pany Offer. If Landlord ftails timely to n!$Pond to
Landlord's RFR Notice or declines to exereise the righl of first reflJsal !jInlnted hlYt:lLll'lder in such Instance, then Tenant or
fenal1t'!,i tru$tM <4$ tria 04$. m$y ~) shall be free to sell and assign ttle Tenant's leasehold Interests described In the
LaM/lord's RFR Notk:e to the proposed purchaser (the 'ThIrd Patty Ptttch.....') on the seme terms ..nd con-:Iltions set
fonn in the Thfrd Party Offer: provided, however. that the sale and $$PJ~nml!lnt of Tenant's Leasehold Interests t(l the Third
Party Purchaser shall be and remain subject to this rignt of first retus"l proVision, such that any future assignment of this
Le$~ l)y me Third Pa~ Purehaser or any successor thereto. shall be and rem$in Iliub;eet to me right of refusal herein
granted to Lat'ldlord.
c. ihe pertiel!l h8tt!tby speoifically acknowledge and agl'H that the right of first refusal gra/"lted t[1 LandlOrd
herein is not intended to operat., and shall not be eonstrued, a~ a provision that prohibits, restricts, or cOfl4jitions the
assignment of this Lease within the m..l'ling of '1" U.$.C. ~ 365(f} Ql' "fly similar statutory provision.
Section 23.28: ENTIRE AGREEMENT,
(a) There are no oral agreements between the pattJes hereto affec:ting this l.ei'll.e. i1nd tt'li$ Llil$$e $IJp$rSsdes
and cancels any and all previous negott..tiQl'ls, ,..rr~enta, letters of intent. lease proposals, brOChures, agreements.
representations, promises, warrenUes and understanding~ between the parties hereto or dlsplayecl by Landlord to Tenant
with res~ tQ tile ,ubj$Qt f'ti$tl$r ~($()1, ~nd none thel'$(lf ahall be used to interpret or construe this Leas~. '~h8 L~ase
Blltt~ forth all of tl'l$ (:(lvAl'l~l'lttl. pr'Of'l'llaa$, .~ents, eondltlona and undarstandlngs betwMn Landlord AI'ld Tenant
oonoeming tl'la PremlSat;, landlord's Building and th8 Shopping Cent8/'. No alteration, amendment. c:hange or addition to
Ihis Lease $hall be binding upon Landlord or Te1"Iant unless reduced to writing. signed by them and mut\Jal~ delivered
be~n them.
(b) The submIssIon by Landlord to Tenant 01 ml, LOMe shall haw no binding force or efflect. shall
not COI"IetItubl .. option for ...Inu of ttre Premls.. nor oonter any rlghb or Impose any obUg.tfons UFlOn ttlther
par1y until the execution thel1lOf by Landlord and the d.'very of an executed orIgIn" copy thBNOf to T"Ianl,
(c) THE UNDERSIGNED ACKNOWLEDGES THAT IT FULl. Y UNDERSTANDS THe CONFe~1I0N$ OF
JUDGMENT CONTAINED IN SECTION '16.02(b) AND (C) ANO THAT THe LANOLORO-TENANI RELATIONSHIP
C~EATED BY THIS LEASE ,S COMMERCIAL IN NATURe. TENANT WAIVES ANY RIGI1T TO A HEARIN.3 WHICH
OTHERWISE WOULD BE A CONDrTlON TO LANDlORD'S OBTAINING THE JUDGMENTS AUTHO~IZED BY SUCH
SECTIONS AND ACKNOWLEDGES AND AGREES THAT UPON THE OCCURRENCE O~ AN EvENT OF iJEFAUL T
LANDLORD MAY OBTAIN A JuDGMENf AGAINST TENANT AS SET FOf(TH IN SUCH SECTION WITHOUT
FlJ~""'ER PRIOR NOTiCe: TO TENANT AND I.ANDlORO MAY THEREAFTER GARNISH OR ATTACH 1'I;NANi'S
ASSETS OR PROPERlY AND MAY PLACE A LIEN ON THE SAME WITHOUT FURTHER PRIOR NCTICE OR
OPPORTUNIlY FOR A HEARING. TENANT HAS CONSULTED WITH AN ArrORNEV REGARDING THE RIGHTS
WHICH ARE BEING WA(VeO lJNOeR THIS LEASE. HAS BeEN FULL. Y ADViSeD OF THOSE RIGHTS AND
NONETHELESS KNOWINGLY. INTELLIGC:NTL Y AND VOLUNTARILY WAIVES SUCH RIGHTS OR TENANT HAS HAO
THE OPPORTUNITY TO SO CONSULT WITH AN ATTORNEY AND KNOWINGLY. INTELlIGEN1'L Y AND
VOL.UNTARllY WAIVES THE OPPORTUNITY TO CONSULT WITH AN AlTO~"'EY Rf:GARDING THE WAIVER OF
THESE RIGHTS AND NONETHELESS KNOWING!.. y, INTELLIGENTLY AND VOLUNTARILY WAIVES SUCH FUGHTS.
IN WITNESS WriERSOF, L.andlord and Tenant have executed this Lease as of the dale first herelnabc:Jve writter,
LANDLQ!U!i.
PREIT SERV.CSS. LLC,
Agent for PR ITAL CITY lIMrreD PAATNERSHtl'
BY:
TENAN..L
:::9~FG~
Tltlo: 7- f~~
_: S~
Title: ~~
YummyJapB1l~CapltalC~F'IM'
AI.I~sr 24, 2005 \ MosrlJTF
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YUlM\yJlIIP8ft-Cl\pItalC1ty-F1n1l1
August 24. 2005 \ MostlJTF
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EXHIBIT"S"
GUAIUH'I'EE OF ~
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I;XHIBIT "CN
COMPLETION CERTIFICATE
DAlEO AS OF
PART I
SHOPPING C!;NTeR LEAse (the "Lifo.....) d$ted ilI6 of
Partie5:
PR CAPITAL CITY LIMITED PARTNERSHIP
("Landlord")
'( J CAMP Hill FOODS INC
("Tenant")
Premises:
Tenant Store No:
FC3
GLA of Premises:
428 SQuare reet
Actual Opening Date:
R$nC Commencement Date:
Expiration Date:
PART"
Tenant, Intending legally to be bound hereby. hereby ratifies the Leal;$ and hereby certifies and ag'M~ with
landlord at; fOllows:
A. the dat.. and other information set forth in this Completion Certificate are true and eol'tec:t; end,
6, the Rent Term commences on the Rent Commtnc:ement Date set forth in PART I ~reof and ends
a~Qh.ltely and without notice at 11 :59 P.M. (local lime) on the Eiq)iration Date, urness sooner terminated as provided in
this Lease or cxtet'ld.d by written agreement of the partie.; and,
C. the Lease has not bun asaigr'led, supplemented, amended or othel'lNise modified unless uttMIl'Wlse
stated; the Lease representr; tM entire agreement bolwMn rha !)$rtIe$ as to the Premises and Its ~~ing; there are no
breaches or other dMault$ by Landlord under N Lease; all conditions of the Lease to be ~ed by Landlord and
necessary to tne enfOrceability of the lease have bee,.. satisfied; the Lease la In all omer regal'ds in full fortXl and e11~;
and.
D. Tltl'lant hJW accepted possession of and has entered Into oceupaney of the Premises: the Prert'lises h3S
been accepted by TenElnt B' being In accordanC$ with the terms and condltlOn8of l/'Ie Lease; no Rent haa tlecm nor will be
paid or prepaid otl'ler than as provlded In the Lease and ttwe are no defenses, offsets, Mduetlons or coun:erclalms
agalns! the en1orcernel1t of the L.ease by Lanc;llord or the payment of Rent by Tenant; and.
~. the Lease Is $l,Ibordinate to the REA and to any and all mortga!:jM on Or deeds of trust as to the :>hopping
Center $l.Ibi~ to the non-dlslurbance provision of Seetion 18,02 of the Lease.
PART lit
In ~r;lition to the fo..going certl1lcatlons. Tenant has d$livered to Landlord aU of tl'le following dO<;:l,ImentH relating
to work that ha$ been petformecl by. throU~h or under Tenal'\l in or ~bout the Premititlti;
A. properly executed and aekl'lowledged atfid$vits (satisfactory to LandlQrd) from contractors e1'l!;&ged by
Tenarlt that all work in or abOut the Pr8l'l"l..!iI has been fully completed In aCCQfl;fanoe with the Final Plant; app'oved by
Landlord and th~t each of TBnant'$ contractots, as well a~ all subcontractors, labOre~ and materialmen. has been paid In
full; and
B. properly olltaeuted and aCknowledged releases 01 mechanics'. materialmen's and labOre's' liens
(sotisfactOfy to L:Jl'\dlord) wit" respect to the Premises from each of Tenant's contractol'$ and from ~Vfi'1)' subClmtractor
and matnlman: and
c. a set of approved "a!l-bvilt" drawlng$ and specifICations for tl'le work done by Tenant In and abOUt rhe
Premises, pl'l!!p8red. slgrtCld l;Ind sealed by Tenant's arc:hltec\. tOgether with a complete g~t of Tenant's "as-built" JprlnkIM
and 01her fire I'rote<::tIon drawin9' and specifications prepared. signed and sealed by Tenant's architect or enoineer; and
O. true and complete copies 01 certlfleetes of occupancy and licet'1ses from governmental bodie~; having
jutisdictlon over Tenant's use or O<:Cupancy of any part ofthf! F'l"&mlse~; and
. E. a detailed COst bre~k-down-sheer satisfactory to L.andlQra speeifyil'lg the line items and cost of each line
,tern of the work dol'le by. through or under tenant in and about tl'll!l Premises; and,
YumrnyJapeo.CaplralCily-Flnal
August 24. 2005 \ MostlJ'T'~
36
'"""",
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F. eleetrleal underwritel'$ certificate from an organizatIon satlsfactoty to Lan<:ll(J(d.
All terms defrnod In any other part of the Lf)8se are used herein as defined thttrein.
This COMPLETION CERTIFICATE has been executed as of the date first abova 'Mittan.
TENANT;
Y J CAMP HILL FOODS, INC.
(Corporate Seal)
By:
Tltkt:
Att1Mt:
TIt..:
YummyJapan-Caplt.aICify-FInaI
August 24,2005 \ MO&tlJTF
37
YummyJaD8n-CspItBIClt)'-Flnal
Augl,l$t 24. ~OO5 \ MostlJTF
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eXHIBIT "e"
FAST FOOD CLUSTER TE~ANT EXH'8J1
Thtl FAST ~OOD CLUSTER TENANT EXHIBIT (the "FFC E)dtiblt") Is annexed to and made a f8rt of the
ShQppingCenter Lease (the .L.....) b)l and between PR CAPITAL CITY UMn"eD PARTNERSHIP, as Landlol'd,llInd YJ
C~p HILL fOOOS, INC.. as Tenant for thOBe Premises designated currently by Lal'ldlord as Tenant Store Nu,..ber FC3
(the "Pre"U5..") In Capital City Mall and Is executed of even dato with the said Lene,
In the ."ent ~ oonfllct arises between the provlslon~ Of this FFC Exhibit and any other part of the L ease. the
provision. of this FFC elChlblt shalt modify and supersede the conflicting provisions of such other part of the Le.JSe to tM
extent necessary to eliminate such conflict but not further. All farrn$ whIch are dl!lfined In any other PliIrt of the L.~ase $hall
have lhe same meaning when used herein.
ARTICU; 1: THE FOOD COURT AREA
Section 1.01: THE FOOD COURT AREA.
The "Food COIJrt Area" (sometimes refen'ed to in ltlis Lease es the "Fast Food Cluster") meant:; and srall be Ule
3re9 speCifically deslgned for small restalJrant operatlans situated 1M thG Landlord's Building, inc;:ludlng, without limitation
the Individual premises, a~ well 88 any &eating area and the maintenance arElas exC:luslve/y serving the Food Court Area.
S8Ctlon 1.02: FooO COURT SEATING MEA.
The uF'ood Court Seating Area" means and shall be the portion of the Common Areas whiCh is mado available by
Landlord for ~~til1g purposea and shall be for ttle non-el<dusive use by eustomfiQ and patronl!l of the Food CcIUJ't Area.
Landlord shall furnish and Instan equiprflenl, floor covering. 11g1'\ti"9 fixtures, decorative sod permanent fixtUl'8!~. ceiling,
tables, el'uilirs, accesS(l(i~ and other property In the Food Court Saatfng Area. Landlord shall be the sole ownl!lr of $aid
fixtures, equipment and property, and shall have the right to make ehanges from time to time In the I!lite, shape or I~tion
Of batt'l. of me FOOd COl,lrt Seating Area and In the number. type and $tyIe of any or alt "peds of fhe facNitIes, et'juipment
and other property therein,
Section 1.03: CHANGES 8Y LANDLORD.
As betwHn lClndlord and Tenant. landlord shall at all times have thE! tight and privilegE! CJf' determining the nature
and extent of 1M Food Court Area and of making such Chan;es, rearrangamt1Jot$, addltJOl"lti, or reductlol'\$ tmlf'eln and
t~to from time to time which In i~ oPinion an\\ deemed to be deslrabla and for tile best Interest of a siQrIifleanl number
of the P$~ons using the Food Court Area or whlet'\ are mad., pursuant to Seetion 1.05 of this Lease, as a reslllt of any
federal. s1at4;l or local, environmental or other law, rule, regulation, guldelln~, judgment or order. Lanc2lord tlhall not,
however. enar'lge materially the dimensionS of thfJ Premises,
ARTICLE 2: USE
Section 2.01: USE.
TenElnt shall us~ the Premises solelY for the preparation, sale al1d delivery of food to the publi~ for "carry-out" or
for consumption In the FoOd Court $Elating Ate:il, Tenant agrees to sell only those food items s~ific8l1y enumm'lted In
Sectlon (n) of the Fundamental LQse PrOVisions (thos. food items hereinafter sometimes referred to as the "Menu.) and
to maintain the highest standard. i"qual~, \:IOrtiOns 01 $4i!Mngs, and preparatlon of such fDO<! items. Tenant agree' to
offer 10t sale each of the enumereted. food itof'r1S on the Menu and sny faHura to $llIIl any of th$ items 01"1 the Menu or any
substitution for or Bddltlon to such Menu WIthout LandlOrd's specific written ap~v81 shall ~ deemed an Event ct' Default
pursuant to SeetiOl'I 16.01 of this L.easa; end, in addition to any other rights or remedll!tls p..,rrsuQnt 10 this leaSflt, l.andlord
shall $peclflcally have the right to termlr'\ate this Lease if Tenant vlotates this. provision.
Sec;:.tton 2.02: DISPOSABLE PRODUCTS,
For rM pyrpose of serving fOOd and beverages to the public, Tenant agrees to use only dlst>QSable paper or other
equally degradQble good$ and ut~I'l'Us. Inc;luding, bOt not IImlt$d to. cupta, wrap materials. platts. trays, boats. straws.
bags. napkins. spoons, fork$, knives. stir sticks and the like (collectively the MDlsposab.....). Landlord shall hav~ !'he right
to develop a uniform design for all $uch Disposables as may be reqUired in the operation of the Food CQurt Al'8a. All
Disposables shalt bear the name anel/or logo of Tenant, 01' the uniform dE!sign developed by Landlord, if any. Tenant
agrees, in any evoot. to use only Disposables of the type, si~, materIal and color reasonably approved by LI\ndlord.
Tenant shall nor be required to purol'tilse sue", Oispos.ables from L.andlord, but landlord may, (or the convenl~ of both
parties, develop a local source of $I.IPply. Tenant shall at all times have the right to develOj) Its own source 01 supply for
such Oisposal)les, provided only that the Disposables meet the requirements stated herein.
Seotlon 2.03: EMPLOYEE DRESS AND CONDUCT.
Employees $h8l1 at :cI1l time; be required to present a clean and well-groomed appearance iilnd shsll wear'
vnlforms. the color and style of which are to be subject to ~ndlord's reasonable apptOval. Tenant may make SUCh
arrangement with Emtlloyees as It dAEllT1s :appn;lprlate regarding the purchase and maintenance of standard ur iforms.
Howe\l~r. Tenant snail require Its standard uniform to be worn by all EmplOyees at an times while on duty In the PrElmises.
L.an~lord may. :&It any time. direct Tenant to require any Employees not $Q attired to immediately conform tQ the
~Ulrements or Iea"Q tn.e Premises, Notwithstanding any provisions of thl$ l.ease to the contrary. Tenant shall I'1l1ve the
rlQht to use suel'l staff uniforms as a(e used in majority d $torM operatIng under the same Trade Name as ienant.
YummyJapao-Capit&lClly-Flnal
August 24, 2005 \ MoetIJTF
39
~"", ,
I' I
ARTICl.E 3: 'FOOD COURt CAM SUM & FOOD COURT CAM CHARGE
Section 3.01: FOOD COURT CAM SUM.
As a tenant of the Food Court Area, Tenant agrees to pay and shall pay tolandlorcl. commencing on the Rent
Commencement Date and each and eV$ry month and as Additional ~ent thereafter throughout the Term. Tena"lt's share.
as herfjlflaftel' set forth. ot the "Food Court CAM Sum", The term "FOOd Court CAM Sum" means and shall btt all IlIUms
incurred in a manner dMmec:l by Landlord to be reasonable and appropriate and for the best intl!tl"mJts of the ShOpping
Center In connectiOn with the operation and 1Tl~lntenance of the FOOd Coun Seating Area (as tM ~me It redUo.!ld,
expanded or otM!Wise altered from time to time) including, without limitation, the followil'lg; (a) the oost of operating,
maintaining or repairing any HVAC equipment S!:l6(:lflcally installed to serve the Fast Food Seating Area; (b) the cost of all
insurance specifically required fer the operation of the Fa,t Food SeatIng Area (including, without limitation, insurance
against fire alid other ca$lJaltles. bodily injury, perso",1 injury. property damage. prOduct liability, sign insurancl!l and :any
other i"surance reqUired to be'Carrted by landlord for the Fasl Food Seating Aroa; (c) the COA. of maintenaree, repair
and/or replacemet"lt t;d interior land$e.aplng. deearating, lighting, lighting systems, e!@Ctrtcal systamti, plumbing s)'$t$ms,
HVAC System and any ether system$ servlng the Fast Food SellltinQ Area: (d) the c:ost of rraah, I'\Jbblsh and Qarbage
removal service: (6) COst of sanitary control: (1) the cost of mail'1tenance, repair ar'ldler replacement of flJmltl,lre and
fbctUI'$$; (g) the cost 01 atl supplies end equlpmCtl'lt necessary propef'fy to clean, operete or maintain the Fast FO(~ Seating
Aro$; (h) the coat t;d all personnel required by Landlord satlst$Qtgrtly to sUpeNtS$, implement. maintain or OJ)erah the Fast
FOOd Seating Area in a high stand*ref of cleanliness and affidlilncy; (I) the cos.t of any Sect.ll'ity personnel th~lt may be
required by I.andlord sJ)eClfIcaUy for tt1e Fast Food Seating Area; (;) amortlzatlon of the furniture, tixtures and ~l.ljpmenc of
the Fast Food Seating Are~; (k~ the coat of any other item or peI'&Onnel deemed by Landlord necessary to 1:1pm-ate or
maintain the Fast Food s.ting Area itl a first class manf'lor; and (I) 1.andtord's sup81'Vl$ory charge in an amourt equal to
fifteen percent (15%) of the total a~e cost of operating and maintaining the Fast Food Setting Area, including,
without limitation, tho~ things listed htwelnabove. Landlord may have heretofoF* eIeQt~ to .spread, and may hereafter
oloct to spre~, the amount of certain items of the FOOd Court CAM Sum over sueh pertod of year$ as Lanclord shall
daterml'" by amortizing tMm over such periQds Instead of lnoludlng such ~J11Ql.lnt. entirely in the year in which "'l(pendec:!
or incurrfKl, in which event. the annual amortlmtiol'l amount s"alll)e deemed to be an expense incurred during IJach year
of the amo~tion perlOcl, netwlthstarldlng that 'uCh expenses May have been ~d or Incurred prior to the &lCeeution
l'Iereof.
s.c:tion 3.02: FOOO COURT CAM CHARGE.
ienant's shar$ of the Food Court CAM Sum (the "food Court CAN Chq.") shall !)er Year be equal to thl'Ol!!
percant (3Dk) of Tenant', monthly Gross Sales. Tenant understands aM __grees that the CAM Sum set forth in .6~ Of
this leaae does not include the Food Court CAM Sum and Tenant', obl~tion to pay the Food Court CAM Char!;e shall In
no way reduce Tenant's Obligation to pay Tenant's CAM Chat'QE1 as set forth in ~ of this Lease.
Section 3.03: PAYMENT OF FOOD COORT CAM e"ARCE.
(ill Tenant shall pay to Landlord, as AdditiOnar Rent. Te"ant's Food Court CAM Charge. T e~nt shall ~y its
Food Court CAM Charge within twenty (20) days fO/lowing tha ancI of each oalendar month and include renant'~ Monthly
Report (as defined in Section 4.06(8) along with the payment.
(b) Oe/eted.
(c) Oeleted.
(d) T~ant acknowledges and agl'1!J8S that Tenant's Food Court CAM Charge is in addition to not only
Tenlllnt's CAM Charges but also Tenant's Utility Charges pursuant to ~ of th~ 1..$85e, Tenant's Tax Charges
pursuant 10 ~ of this Lease $l'\d all of tI'Ie ONr charges &at forth. without limitation, In fR.1 of this lease,
IN WITNESS WHEREOF, landlord and Tenant have duly executed lhis FAST FOOD CLUSTER "ENANT
E:XHIBIT a$ of even date with the Lease.
LANDLORD:
PREIT SERVlCI;S. LLC.
Ag..,t tor CAPrrAt. CITY L1"'ITED PARTNERSHIP
BV;
TENANT~
tCORPORATE SEAL)
::,~Oe~
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Attest:
VUmtl'IyJapan-CaplIaICIty-Flnsl
Augost 24, ~OOS \ MostIJT~
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EXHIBIT B
IN THE COURT OF C01\1J:\10N PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC. )
)
Defendant. )
)
)
)
)
CIVIL DNISION
No. 06-5090
NOTICE nNDER RULE 2958.1 OF JUDGMENT AND E:x.~CUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: Y J CAMP BILL FOODS, INC.
A judgment in the amount of$6,268.00 has been entered against you and in favor of the
Plaintiffwithout any prior notice or hearing based on a confession ofjudf:,rment contained in a
'written agreement or other paper all egedly 5i gned by you. "The sheriff may take your money or
other property to pay the judf,rrnent at any tinle after thirty (30) days after the date on whioh tbis
notice is served on you.
You ll'lay have legal rights to deieat the judh,'1nent or to prevent your :money or property
from being taken. YOU rvrusT FILE A PETITION SEEKING RELIEF FROM THE
mDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE
DATE ON \VI-IICH THIS NOTICE IS SERVED ON YOU OR yOU :MA Y LOSE YOUR.
RJGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LA \VYER AT ONCE, IF YOU DO
NOT HAVE ALA "\VYER OR CANNOT A..FFORD 01\TE, GO TO OR TELE:PHO~1E THE
OFFICE SET FORTH BELOW TO FIND OUT Vll-IERE YOU CAN GET LEGAL HELP.
Lawyer Referral St:rvice
4tb Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6200
EXHIBIT B
Septernbe:~~) 2006
~D/a~~
St~phen S. Zubrow
Pa. J.D. No. 43523
Moira Cain-M.annix
Pat I.D. No, 81131
MARCUS & SHAPIRA., LLP
One Oxford Centre 35th Floor
,
30 J ('rrant Street
Pittsburgh, P A 15219
(412) 471-3490
Attorney for Plaintiffs, PR Capital City
:Limited Partnership
EXHIBIT C
IN THE COURT OF COMMON I)LEAS
O)~ CUM.BERLAND COUNTY , PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP 1:-J.ILL FOODS, INC. )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No. 06-5090
PROOF OF SERVlCE
Date: October Ii ,2006
Place: Yummy Japan
Capital City Mall
3506 Capital City Mall Drive
Camp Hill, PA 17011
Documents Served: Notice Under RuJ~ 2958.1 of Judgment and Executi0l1 Thereon, Notice of
Defendants' Rights
Servedon:_ ~r IX Vt"
Print N alne
by t1AI'I) '0
Malmer of Service
1, J::~l A 11'\ /,..l) m ,} Ili
.~ hereby declare under penalty of peljury under the laws of
the United S':ates of America that the foregoing information contained in the Proof of Service is true
and correct.
Executed on J 0/ )1 /(.~S:i:
Date
/~
~~:JI:"~' L .'~
Signature of Server
~..., 14 In L ,S 7'Ii . tj.,
Name of Server
EXHIBIT C
-
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Address of Server
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.--
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL V AN1A
PR CAPITAL CITY UMlTED PARTNERSHIP, )
)
Plaintiff; )
,)
v. )
)
Y J CAMP HILL FOODS, INC. )
,
CIVIL DIVISION
No. 06~5090
Sworn to aud subscribed
before me this 4 day of
October,2C06.
~~&Mhij D.~/l~
Notary Pub::ic
My Commi ~sion Expires:
cn/:J:./IONwr:AL:n~ (H' t'i~HI.:..:. ,." ..:
~ Notarial S"al , \
Lauric B. Miltm-. NO~lry '>UI2.1,ll' . u I
C:it,y or Pittsburgh. ~J1eS.hl:ll>' <;:0, t\l~\,\", \
1\1..)' Commission ~Xpln.s Jun'~,l
Mnmoor. pennsylYliIliP. ,"~SOCIi:lt"'" ,)1 H"::~''',:';
-
11/04/2006 17:20
7172412280
D LOVELACE
PAGE 05/05
VERIFICATION
Joan Zhou, agent for Y J Camp Hill Foods, Inc., Defendant in this action, states
that the statements offact made in lh~ foregoing Defendant's Petition to Strike or Open
Confessed Judgment are true and correct to the best of her personal knowledge.
infonnaticm. and belief. The undersigned understands that the statements herein are made
subject to the penalties of 18 Pa. C.S.A. ~ 4904 relating to unsworn falsification to
authorities.
iN
Date: November '5 !t 2005
~~
CERTIFICATE OF SERVICE
I, Douglas C. Lovelace, Jr., attorney for Defendant, Y J Camp Hill Foods, Inc., hereby
certify that on November 8,2006, I served a true and correct copy of the foregoing Petition
to Strike or Open Confessed Judgment upon the following below named individual by depositing
the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County,
Pennsylvania.
SERVED UPON:
Moira Cain-Manix
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
Attorney for Plaintiff
Douglas C. Lovelace, Jr., Esquire
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, P A 17013
(717)385-1866
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Douglas C. Lovelace, Jr., Esquire
Attorney Identification Number: 83889
36 Donegal Drive
Carlisle, P A 17013
(717) 385-1866
PR CAPITAL CITY LIMITED
P AR1NERSHIP
: IN THE COURT OF COMMON PL AS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
Plaintiff
v.
: CNIL ACTION - IN LAW
Y J CAMP HILL FOODS, INC.
: NO. 06-5090
Defendant
PRAECIPE TO ENTER APPEARANCE
To The Prothonotary:
Please enter my appearance as attorney for Y J CAMP HILL FOODS, INC., D fendant
in the above captioned matter.
Date: November _, 2006
~r:&tl.
DOUGLAS C. LOVELACE, JR.,
Attorney for Defendant
Attorney Identification Number: 83 89
36 Donegal Drive
Carlisle, P A 17013
(717) 385-1866
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PR CAPITAL CITY LIMITED
PARTNERSHIP
PLAINTIFF
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
V.
Y J CAMP HILL FOODS, INC.
DEFENDANT
NO. 06-5090 CIVIL
ORDER OF COURT
AND NOW, this 13th day of November, 2006, upon consideration of the
Defendant's Petition to Strike or Open Confessed Judgment, IT IS HEREBY ORDERED
AND DIRECTED that:
1. A Rule is issued upon the Plaintiff to show cause why the relief requested
should not be granted;
2. The Plaintiff will file an answer on or before December 4, 2006;
3. If no answer to the Rule to Show cause is filed by the required date, the relief
requested by Defendant shall be granted upon the Court's receipt of a Motion requesting
Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and
the answer raises disputed issues of material fact, an evidentiary hearing will then be
scheduled. The Prothonotary is directed to forward said Answer to this Court.
By the Court,
,~
J,
M. L. Ebert, Jr.,
Douglas C. Lovelace, Jr., Esquire
Attorney for Defendant
Moria Cain-Mannix, Esquire
Attorney for Plaintiff
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IN THE COURT OF COMMON PLEAS
OF CUMBERI~AND COUNTY, PENNSYL VANIA
)
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC., )
)
)
Defundant. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL ACTION - LAW
No. 06-5090
MOTION FOR CONSENT ORDER
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Party:
Stephen S, Zubrow
PA ID No. 43523
Moira Cain-Mannix
Pa, J.D. No. 81131
MARCUS & SHAPIRA, LLP
Firm No. 145
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, P A 15219
(412) 471-3490
~#
IN THE COURT OF COMMON PLEAS
OF CUMBERl__AND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v, )
)
Y J CAMP HILL FOODS, INC., )
)
Defendant. )
)
)
CIVIL DIVISION
No. 06-5090
MOTION FOR CONSENT ORDER
Plaintiff, Capital City Limited Partnership, and Defendant, Y J Camp Hill Foods, Inc., by
and through their respective counsel, tile the within Motion for a Consent Order striking the
judgment in this matter, and discontinuing this action without prejudice to the right of the
Plaintiff to institute a civil action not involving a confession of judgment against the Defendant,
and with each party bearing their own costs and attorneys' fees. A Consent Order agreed to by
the parties is attached hereto.
WHEREFORE, the parties to the written action respectfully request that the Court enter
the attached Consent Order,
Respectfully submitted,
~~-?u~. · l
Moira Cain-Mannix (
Pa. LD. No. 81131
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital City Limited
Partnership
.4
~~-
Douglas C. Lovelace, Ir,
Pa. LD. No. 83889
36 Donegal Drive
Carlisle, P A 17017
(717) 385-1866
Counsel for Defendant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
Y J CAMP HILL FOODS, INC" )
)
Defendant. )
)
)
CIVIL DIVISION
No, 06-5090
CONSENT ORDER
,\
AND NOW, this 1. ~ day of ~o" , 2006, upon the Motion and agreement of
the parties,
IT IS ORDERED that the judgment in the within action is stricken, and the above-
referenced matter is hereby discontinued, without prejudice to the right of the Plaintiff to
institute a civil action not involving a confession of judgment against the Defendant, and with
each party bearing their own costs and attorneys' fees.
, J,
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