HomeMy WebLinkAbout06-5091
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v, )
)
WILD PAGING, INC. , )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No, CJ~- SD'f/ CivIL'~~
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 10/1/05 through 8/1/06
$ 21,466.04
$ 1,073.30
Attorneys' fees for enforcement and collection (5%)
provided under ~16.02 of the Lease
Filing Fee
$
19.50
TOTAL
$ 22,558.84
Dated: August a 2006
~o~4tAV~~~
Attorney for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v, )
)
WILD PAGING, INC. )
)
Defendant. )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
CIVIL DIVISION
No, Ol. -.{;o9f (t..~CT~
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, I.D, No, 43523
Moira Cain-Mannix
PA ID 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, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v, )
)
WILD PAGING, INC" )
)
Defendant. )
)
)
)
CIVIL DIVISION
No, Ot. -S'09( /9C L~,..
LlcJl ' / Sc.."'l
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 Wild Paging, Inc. is a New Jersey corporation. Defendant's last
known address is 3111 Route 38, Suite 11-110, Mt. Laurel, NJ 08054,
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 July 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 installment or year-end adjustment thereof if such failure
continues for ten (10) days after written notice thereof by Landlord to Tenant."
7, Plaintiff avers that Section 16,02 (b) of the Lease authorizes the entry of
Judgment for money after an Event of Default thereon, An Event of Default has occurred under
the Lease in that Defendant failed to make payment of rent and other charges which were due
from approximately October of 2005 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 10/1/05 through 8/1/06 (Ex, 2)
$ 21,466,04
Attorneys' fees for enforcement and collection (5%)
provided under ~16,02 of the Lease
$ 1,073.30
Filing Fee
$
19.50
TOTAL
$ 22,558.84
WHEREFORE, Plaintiff, as authorized by the warrant of attorney contained in the Lease,
demands a money judgment against Defendant in the total sum of $22,558.84 plus costs,
attorneys' fees and interest at the Lease rate from and after the date of the Entry of Judgment as
provided in the Lease, and brings said Lease to Court to recover said sum.
Respectfully submitted,
Dated: August 1#, 2006
~~~ or
{
Stephen S. Zubrow
Moira Cain-Mannix
MARCUS & SHAPlRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
(412) 471-3490
Counsel for Plaintiff, PR Capital
City Limited Partnership
Wild Paging, Inc.
UNSWORN VERIFICATION UNDER 18 PA. C.S. & 4904
The undersigned hereby states subject to the penalties of 18 Pa, C,S, S 4904 regarding
unsworn falsification to authorities as follows: I am a duly authorized representative of the
Plaintiff identified in the attached Complaint in Confession of Judgment for Money and that
averments of fact contained in such Complaint are true and correct to the best of my knowledge,
information and belief,
PREIT SERVICES, LLC,
Agent for PR CAPI L CITY LIMITED PARTNERSHIP
Dated: ~2J 2:,
,2006
By:
G an
I Counsel and Executive Vice President
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
WILD PAGING, INC., )
)
Defendant. )
)
)
)
CIVIL DIVISION
No, Dt-. - Ct'u~LI~
NOTICE OF ENTRY OF CONFESSED JUDGMENT FOR MONEY
TO: WILD PAGING, INC.
Please take notice that a judgment for money in the amount of$22,558,84 has been
entered against you by confession on the date below in favor of the Plaintiff,
Date:-1J,.l1 _~O ~ODle.
I
Pro onot of Co on
Pleas of Cumberland Co
c
.
j,/
,.
'"'
LEASE AGREEMENT
BY AND BETWEEN
Q,','
~
SCANNED
'7111 loS cA
PR CAPITAL CITY LIMITED PARTNERSHIP, . Landlord
T -MobIIe(WlldPaglng}-CapltalClty..K1ook-FINAL
June 8, 2005 \ MIlIerICB
and
WILD PAGING, INC.. . Tenant
TRADE NAME: T -MOBILE
EXHIBIT 1
,.t'--,
()
FUNDAMENTAL LEASE PROVISIONS
This Lease is executed and made as of ~-.) \'1 1 ,2005, by and between PR CAPITAL CITY LIMITED
PARTNERSHIP, a Pennaylvanlallm_ partn.rahlp (herein called "Landlord") and WILD PAGING, INC.. a New Jersey
corporation (herein called "Ten.nt"), Landlord and Tenant having the follaNlng notice addresses:
Landlord:
Copy to:
PR CAPITAL CITY LIMITED PARTNERSHIP
Management 0IfIce
3506 Capltat City Mall DrIve
Camp Hili, PA 17011
Attn: General Manager
PR CAPITAL CITY LIMITED PARTNERSHIP
c/o PREIT Services, LLC
200 South Broad Street
The BellevU8, Third Floor
Philadelphia, PA 19102
Attn: General Counsel
Ten_nt:
Copy 10:
Wild Paging, Inc,
3111 Route 38
Sulle 11-110
Mt. Laurel, NJ 08054
Certain Fundamental Lease Provisions ara presented in thio SectIon and represent the agreement of the parties hereto,
subject to def1nltlon and elaboration in the reapecttve referenced SectIons and elsewhere In thio La...:
(a)
(b)
Tenant', Trade Name:
T -Mobile
(See See, 7,01)
Renl Term: Eighty-four (84) months commencing on the Rent Commencement Date, The Rent Term expires
on the last day of the eighty-fourth (84~) month following the Rent Commencement Date (the "expiration Data"),
(See See. 3,01)
(c)
(d)
(e)
(I)
Tenant 810... Number:
K-6
(See Exh, A)
(See See, 1,04)
(See See, 2,03)
(See See, 2,03)
(See See, 2,03)
GLA of Pram"":
192 square feet
D..llIn Drawtnga Sublnl..lon Data: July I, 2005
Tenant'. "Construction Commencement D....:
& "ConatNcllon Period.: Thirty (30) days
(g) Minimum Rant:
Augustl,2oo5
Tlma Period
Annual Amount
lIonthlv Amount
Rent Commencement Date
through the 36th month
From the 37th month
through the end of the Term
$61,998,72
$5,166,56
$84,999.66
$5,416,84
(See See, 4,03)
(h) Percentaga Rant:
Tlma Period
Break Point
ThIl"h~"
(i)
0)
(k)
Rent Commencement Date
through the 36th month
From the 37th month
through the end of the Term
Required Openlnll Data:
September 1, 2005
$310,000,00
Ten Percent (10%)
$325,000,00
Ten Percent (10%)
(See See, 4,04)
(See See, 4,02)
(See See, 2,02)
(See See, 9,01)
(See See, 9,02)
Security De_It:
NJA
Markatlnll Service Chili'li.: $1,00 per square foot of the GLA of the Premis.. per Year
Minimum Advertlalng Charge: NJA
(I) Certain Other Chili'li" Payabl. by Tenanl:
Tax Charge
~Chlll'll"
R_ Handling Charge
CAM Charge
SpeclaI_menl
T -Mobllo(WlldPaglngr<:apltalCity-Kloak.flNAl.
June 8, 2005 \ Mlller/CB
(See See. 5,01)
(See See. e,02)
(See See, 6,04)
(See See, 8.03)
(See See. 9,01)
2
;-
()
FUNDAMENTAL LEASE PROVISIONS (CONT'D)
(m) .Agent" and To Whom Rent Payable:
PR Capitol City Associates LP
P,O, Box 644052
Pittsburgh, PA 15264-4052
(n) U..: The sale et retail of T-MobHe wireless pagenI, teIephonea end llCC8S1OI'ie8 end for no other purpose
whatsoever,
(See See, 7.01)
r-Mobile(WiIdPoglngj.CapitaiClty-Kiosk..fiNAL
June 8. 2005 \ MII6er/CB
3
C)
LEASE AGREEMENT
ARTICLE 1: INTRODUCTORY PROVISIONS
Section 1,01: REFERENCES AND CONFLICTS,
References sppearing in the Fundamental lease Provisions are to designate some of the other places In th!5
Lease where additional provisions eppliceble to the perticuler Fundamentel Lease Provisions appear, Each reference In
this Le...e to any of the Fundamental Lease Provisions shall be construed to Incorporate all of the terms provided for
under such provisions, and auch provision shatl be read In conjunction with all other provisions of this Lease a.pplicable
lherelo, "Ihere is arti contIIcI be\Weefl arti of the Fundamentel Leaae Provisions and any oIher provisions of thIS Lease,
tha latter shall control. The listing on the Fundamentel Leaae Provisions of monetary charges payable by Tenant shall not
be construed to be an exhaustive list of all charges or the amounl \hereof payable by Tenant under this Lease,
Section 1,02: GENERAL DEFINmONS,
(a) The term "Shopping C.nter' means the land shown on Exhibit "A" attached hareto and by this
reference incorporated herein, as the same may hereafter be reduced. expanded or otnerMse altered from time to time.
(b) Tha term "Moll Proml_' means the Shopping Center excluding however the Majors' Premises and the
term "Mall Preml..... Includes U1e same as reduced, expanded or otherwise altered from time to time.
(c) The term "Land.ord'. Building" means the buildings, structures and other Improvements shown in
general on Exhibit -A- and includes the "Encl08ed Mall" (hereinafter defined), but excludes the Majors' Premises
(hereinefter defined), Landlord's Building is pari of the Mall Premis..., The term "Landlord'. Building. Includes the same
as reduced. expanded or otherwise altered from time to time.
(d) The term "Mojora' Proml.... (or "Mojor'. Prom_Oj means the prom Is... shown on Exhibit .A., p_
1 by such term, or by the word "Mejor' or neme of the prospective or ac\ual prlnclpal occupant thereof (the "Mojora' or a
"MoJor'), and the term "MoJora- Prom...." (or "MoJor'. Proml_") Includ.. tha .ame as reduced, expanded or
otherwise altered from time to time, The term "Major' (or "M.l....") includea any replacement for or other substilule of the
primery occupanl of a Mojor's Premises as well ..., In the caoe of an expansion of the Shopping Center, the primary
occupant of the promises equal to or exceeding, In terms of GLA, the GLA of anyone (1) of the Majors' Premises shown
on Exhibit "A" hereof (even though those premls... may not be originally shown thereon), References In this L.... to a
Major or Majors shall Include any such replacement, substitute or additional Major and tts premises are Included within the
terms "M-Jo.... Premlaw" and "MaJor'a Preml...".
(e) The term "Common Areu" means all areas, facilities and improvements operated or provided at or in
connec\\on wilh the Shopping Cenler from lime to lime for the non-exclusive common use of Landlord, the tenants of the
Mall Premises and the Majors, and shall include bul not be limited to the 'Encl_ M.II" (herelnaf\er defined), parking
areas, roadways, ramps, traffic controls, truci<ways, loading and unloading _s, delivery areao, sidewalks, s\alrWays,
escalators and ejevstors (If any). service corridors, exit corrktors, seating areas, buffer areas, screening faclltties,
merchandise pickup stations (excluding those of Majors, II any), public rest rooms and comfort stations, retaining walls,
landscaped areas, open space areas, utility systems, sanitary and other waste handling syatems, holding tanks, force
mains, fire detection and/or suppression systems, life safety systems, security systems, community rooms, drainage
systems, and lighIlng syslems, Tha lerm "Common _. includes the same as reduced, expanded or otherwise allered
from time to time.
(1) The term "Encloaed M.II" means the enclosed climate controUed pedestrian mall located In Landlord's
Building, and the term "Enclosed M.II" includes the same as reduced, expanded or otherwise altered from time to time.
(g) The term "Prom_' means the area of the Enclosed Mallon which Tenanl shalllnstelllts kiosk which
space Is in the approxlmata locaIion marl<ed on Exhlbtt "A", Notwlthstandlng that the klosk shall for some purposes be
deemed personal property, unless otherwise specifICally provided for, whenever In this Lease the ~ "prom_" Is
used, ij shall include the klosk within Its meaning, In the event the Premises is a corner location, the Premls.. shall
exclude any rights with respect 10 the e_lor side wall of the Premises,
(h) The term "Fool Food Clua!'" means the area or areas now or In the future speclflC8l1y designaled by
Landlord for small restaurant or other food service operations sitUated In Landlord's Building or etsewhere in the Mall
Preml&eS, including the indMdual premises and any seating areas located therein and the maintenance and housekeeping
areas primarily serving the Fast Food Cluster. The term "Fat Food Cluater" includes the same as reduced, expanded or
otherwise altered from time to time.
(I) The term "GLA" means with respect to the Premiae. and aU olt1er leasabie area., 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 lnvitees including without limitation mezzanines and
balconies II used for Ihe sale of goods and/or services (but excluding all other areas and space defined herein as part of
Common Areas). GLA of the Premises shall be the areas shown on the Fundamental Leale Provisions and the GLA of all
other leasable area. shall be measured from lt1e ex\ertor face of the exle\1Or walls and the __ face of service conldor
walls, the line along the front of the premises where the promises abuts the Enclosed Mall... shown on Exhibij A (which
line Is commonly known as lt1e "Lou. L1n.'), or the Lease Line of any pop-outs referred to In Saction 1,04, ... the case
may be, and the CflInter line of any wall the tenant in question shares with other tenants or occupants of the Landlord's
Building, With respect to a111..sabie areas other than the Preml..., GLA shall be determined by vlrtua of the definition
contained in the ~ase 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 Tenanl nalk:e 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 ,eductions, expanskms or
other alterations of Landlord's Building or as such GLA may be adjusted pursuant to provisions in the leases of other
T -Mobl\e(WildPaging)-CapltaICIly-Kiosk-FINAL
June 8. 2005 \ Mlller/CB
4
(~ 0
tenants or occupants, The GLA of the Premises and of l.andlotd'. BuNdlng .hall be utilized to C8iculate tho GLA Fraction
"(defined in Soctton 1,020) and to make any other C8iculetlon. required to determine the charges to Tenant
U) The term "GLA Fractlon" mean. a fraction, the numerator of which .hall be the GLA of the Premise. and
the denominator of whlch .hall be the occupied GLA of l.andlord'. Building, .ubject, however, to the provi.lon. of Section
4,08,
Tenant hereby acknowledge. and agree. that, notwith.tendlng anything to the contrary set forth
el.ewhere In this Lea.e, for purposes of computing any Additional Rent hereunder which I. C8iculated by u.lng the GLA
Fraction, the numerator of the GLA Fraction .hell Include tho total square footage of a two foot (2') wide quaulng area
along the entire langth of the opan .lde(.) of the Premises, Therefore, In order to determine any Additional Rent
hereunder wh"'h calculated upon a per-square-foot basi. as aforesalel, the GLA of the Premises .hell be deemed to be
three hundred twenty (320) square feet In lieu of the actual GLA of tho Premises os set forth In the Fu_mental Lea.e
Provi.lon.. Such queuing area (which contains one hundred lWenty.<lIgh\ (126) square feel of floor area) Is \nCIuded for
purpose. of calculating Additional Rent under thl. Leese as set forth hereinabove, but only for such purpose, and S<lch
queuing area .hall not, in any menner whatsoever, be deemed hereunder 10 be a part of the Premises, Further, in no
event shall Tensnfs kiosk encroach into or upon said queuing area.
(k) The term . Junior M~.) p....,1_. mean. either of the following, (not herein identified a. or otherWIse
hereunder con.tltuting a """0<"): (I) any .0 C8iied "out parcel" or any premises thet does not have dlrecl cu.tomer .tore
frontege and/or cu.tomer entry to the Encloeed Mall or (II) any premises which contaiN> In excess of 15,000 squere feel of
GLA In the Shopping Center,
(1) The term .L_" a. used In thl. document (the "L_") shell mean the Fundamental Lease Provl.lon.,
the Lea.e Agreement, the Exhibits attached hereto and Addendum, Wany,
SeelIon 1,03: EXHIBITS,
The following plen. end .peclal provi.ion. are attached hereto as exhibits, are incorporated herein and hereby
made a part of this Lease.
EXHIBIT A
Plan of the Shopping Cenler a. presentiy con.tltuted which plan also .hows the approximate location of
the Premises,
EXHIBIT B
Delated,
EXHIBIT C
Completion Certificate,
Section 1,04: GLA OF THE PREMISES,
Deleted,
Section 1,05: CHANGES TO SHOPPING CENTER,
~ between Landlord and Tenant, l.andlord may at any time and from lima to time eliminate land from, or add to or
.ubstitute for land of, tha Shopping Center or any part thenIof, or eliminate, add or .ubstltute any improvements, or
change, enlarge or consent to a change In lhe shape, .ize, 1oceI1on, number, height, or extent of the implOV8fT1ents to the
Shopping Center or any part thereof, Including, without limitation adding add~lonallevel. to any existing building. therein,
Section 1,06: CROSS EASEMENT AGREEMENT,
Tenant understand. and agrees with Landlord that, notwith.tandlng anything to the contrary contained in thl.
Lea.e, the Shopping Center Including, without limitation, tha Common Areas and the Premises are and .hall be .ubject,
.ubordinate and o\he!wlsa ju_ to any CI'OSS easement agreemant (as \hey may be or may have been created, amended,
.upplemented or otherwise modified from time to time) between Landlord and each occupant of tho Majors or Junior
Majors who are parties thereto (such cro.. easemant agreement being herein coUecIIveIy _ the "REA"),
ARTICLE 2: PREMISES AND TENANrS WORK
Section 2.01: LEASE OF PREMISES,
Landlord, In con.ideration of the "Renr (deflned In Section 4,01) to be palel and the covenants to be performed by
Tanant, doe. hereby demise and leese unto Tenant, and Tenent hereby iellses and tekes from l.andlord, for the Term, at
the rental, and upon the covenants, conditions and other terms herein set forth, the commercial space referred to herein
as the Premi.e. .ituated or to be .ituated In l.andlord'. BuDding, a. the ca.e may be,
~Ion 2,02: SECURITY DEPOSIT,
Deleted,
Section 2,03: PREPARATION OF PLANS AND TENANTS WORK,
(a) Tenant he. had the opportunity to examine the Premi.e. and hereby agrees to accept same In the "os i."
cond~lon In which the Premlo.. exist on the date Landlord turns over the key to the Premises to Tenant or Tenenr.
designee, Tenant further acknowledges thel Landlord has not made any representation. os \0 the present or futura
condition of the Premi... or what ~em.> W any, the present occupant of the Premises 10 required \0 or may leave therein,
Landlord .hell not be required to .end Tanant any formal notice tendering pos....1on of the Premises nor .hall Landlord
T-MoblIe(WIIdPaging)-CapitaIClty-KJosk-FINAL
Juoe 8, 2005 \ MliletICB
5
l 0
be liable In the eyent the exls~ng occupant of the Premises fells to ~moly vacate the'seme, except that eny delay In
'occupancy shell extend the Required Opening Dete speclfted herein lor a period equal to the number of days between the
Construction Commencement Date specified herein and the dale such former tenant vacates: provided that K physical
possession of the Premlsea Is not ayallable by a date which Is one year from the Construction Commencement Date, at
Landlord's op~on, this Lease shall be null and yoid and neither party shall heye any liability hereunder to the other,
(b) Tenant shall perform all wor1< required to be performed by Tenant to con.truct and In.tall the kiosk and to
adapt the same for Tenant's use, as such use Is spectfied and limited by the Fundamental Lease Provisions, all such work
being referred to herein as "Tenant's Work". Tenant shall design the kmk In accordance wtth Landlord's current store
and storefront design criteria booklet and otherwise comply with all Insurance and other requirements therein (herein
called "5Iore o.l8n C_"), a copy of which Tenant acknowledges It hes received, Tenant shall Instruct Its architect
or designer to prepare Tenanrs plan. for the kiosk In compliance with the American. with DisabHl\les Act, the Clean Air
Act and all other applicable laws, Nles, codes, and ragula~ons, In the event of any Inconsistencies between the text of this
Lease and the Store Design Criteria, the lalter shell preyail, Entry by Tenant to the Premises prior to the Rent
Commencement Date shall be subjact to all of the proYlslons of thl. Lease, except the duty to pay Rent but Tenent .hail
pay for all utilities and services supplied to It during such period. Tenant agrees to perform Tenant's Work in accordance
with the provisions of this Lease and in such manner so as not to cause any interference wfth the use, occupancy or
enjoyment of the remainder of the Shopping Center, or any part thereof. Tenant shall promptty cause to be repaired all
items which may have been damaged 8S a result of the performance of Tenanrs Work prompUy upon the occurrence of
such damage and shall at all times keep all portions of the Shopping Center free from and unobstructed by debris,
equipment or materials related to Tenant's Work. Tenant shall not penetrate the floor slab of the Premises.
(e) On or before the Design Drawing Submission Date, Tenant shall submit to Landlord's tenant coordinator
(herein called the 'Tenant Coordtnlltor") for the Landlord's approval design drawings (herein called the "Dealgn
Drawing.") .pecifying each aspect of Tenant's Work and specifically Including a colored rendering of the proposed
storefront and signing, semple materials to be used In the kiosk and .Ign, photograph of flxturas to be u.ed and the Interior
layout of the kiosk, The Design Drawings shall be prepared In accordance with the Store Design Criteria, After receipt of
the De.lgn Drawings, Landlord .hall raturn to the Tenant the Design Drawings, a1ther 'approYed", "approved e. noted" or
"disapproved"; If they are marked "disapproved", Landlord shall also note the reasons of such disapproval. On or before
thirty (30) days after receipt of the "dlsepproYed" Design Drawings, Tenant .hall resubm" to the Tenant Coordinator
revised Design Drawings meeting Landlord's objection., Landlord shall thereafter raturn the seme to Tenant, marked as
set forth aboye and Tenant shell within an additional thirty (30) day period ra.ubmll ravlsed drawings until the same heye
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
.pactftcatlons (herein called .Flnal P1.n..) for architectural, electrical, machanical, .prinkler and plumbing work within the
Premises and all other Tenant Work proposed by Tenant and shown on the Design Drawings and required by the Store
Design Criteria. The Final Plans shall be prepared in accordance with the Design Drawings as marked "approved as
noted" or 'approyed" by Landlord, The Final Plans shall Incorporate any raYlsions required by Landlord to the Design
Drawings, including those forming the basis of Landlord's approylng the same "as noted", After receipt of the Final Plans,
Landlord shall retum to Tenant the Final Plans, marked either "approved", "approved as noted" or "disapproved", If they
ara marked "dlsepproved", Landlord shall state the reason. for suCh disapproval and Tenant .haIl, on or before ten (10)
days after receipt of .uch "disapproved" Final Plans, correct eny deflclencles .tated by Landlord and rasubmll within ten
(10) days corrected Final Plans to landlord until same are accepted as "approved as noted" or "approved". If landlord
accepts Tenant's FinaJ Plans "approved as noted", Tenant need not resubmit the same to landlord's Tenant Coordinator,
but Tenant shall revise such Final Plans to incorporate landlord's required changes and Tenant covenants that the Tenant
Work in the Premises shaU be constructed In such fashion 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 Default. Tenant's Work shall be performed omy in
accordance with the Final Plans, as marked "approved as noted" or "approved" by landlord. Tenanfs failure to submit its
Design Drawings on or before the Deaign Orawtngs Submission Date or Tenant's fa~ure to commence Tenant's Work on
or before the Construction Commencement Date shall be an Event of Default pursuant to SectIon 16.01 unless such
failure results from landlord's inability to deliver possession of the Premises to Tenant on the Construction
Commencement Date.
(d) Together with Tenant's .ubmisslon of Its Design Drawings and together w1th any other plan. .ubmltted 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 One Thousand and 00/100 Collars ($1,000.00) 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 certiflC8tes of
insurance as required in Artlde 11 and the Store Design Criteria, as well as a true copy of Tenaors building permit and
Tenant.hall commence Tenant's Work and prosecute II dlllgen~y end con~nuously to completiOn Including in.tallatlon of
fixtures and equipment In the Premises. PrIor to the commencement of any Tenant Work or the delivery of any material to
the Preml.es by any contractor, subcontractor or materialman (herein called "ConlrIIclor"), Tenant .hall deliver to the
Tenant Coordinator a .igned, acknowledged and.eaIed waiver of liens (herein called .ContraCtors Waiver of Lien..) from
each Contractor In the form speclfted by Landlord, The Contractor'. Welver of Llans proYIdes, among other things, that
the Contractor waives any and all lien rights thet It may have against Landlord's eatate, right, \iUe and interest In the
Shopping Center and any part _Including, without limitation, Landlord's Building and the Mall Premises, W1thln thirty
(30) days after Tenanrs opening the Premises for business, Tenant shall deliver to Landlord an executed Completion
Certificate In the form attached hereto as Exhlbtt .C.,
(I) Landlord shall heve the right to post and keep posted In the Premlsea notices of non.....pon.lbUIty, or
.uch other notlcas as Landlord may deem to be proper for the protection of the Landlord or Landlord'. estate, right, \iUe
and interest In the Shopping Center and any part thereof, Tenant .hell before the commencement of any wor1< which
might resull in any clalm, lien or other charge give to the. Landlord written no~ce of Its Intention to commence .aId wor1< In
.ufflclent time to enable Landlord to post, file and record .uch notlcas, The provialon. of thl. 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.
T-Moblle(WlidPaglng~pitalClty-Klo.k.fINAL
June 8. 2005 \ MUterfCB
6
(-
r)
SectIon 2,04: OPENING OF PREMISES,
(a) Tenant agrees to open Its business to the public In the Premises no later than the Required Opening Date
specifl8d in the Fundamental Lease Provisions.
(b) Tenant shall complete, or cause to be completed, Tenant's Work and the Installation of merchandise no
later than the Required Opening Date. If Tenant falls to open Its business to the public in the Premises on or before the
Required Opening Date, Tenant .hall pay to Landlord, In addition to Minimum Rent and Addlllonal Rent, an amount equal
to one percent (1%) of the annual Minimum Rent for each day Tenants business remains not open In the Premises from
and aIler the Required Opening Date (counting the Said Required Opening Date as the first .uch day). Any.nd.1I .um.
and other charges payable by Tenant to Landlord pursu.nt to the Immediately preceding ..ntence .hell be paid on
demand to offset administrative costs and expenses Incurred by Landlord as a reluU of Tenanfs late opening and shall In
no way abrogate, or relieve Tenant from any of Tenanr. obligation. under thl. L...., Including wtIhout limitation the
obligation to open its business In'the Premises, and Landlord shall have all other rights and remedies under this Lease. at
law and In equtty, arising from Tensnrs failure to open pursuant to this Section 2.04(b).
Section 2,05: MECHANIC'S UENS,
(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 .ny mortgag., conditional sale, .ecurity agreement or chattel mortgage which might be or become a lien
or encumbrance or other charge (coIl~y a "Charge") against or upon the Shopping Center or any part thereof,
Including without limitation the Mall Premises and landlord's Bulfdlng or the Income therefrom. Tenant will not suffer any
other matter or thing whereby the e.tate, right, title and Intereat of Landlord in the Shopping Center or any part thereof
including without limitation the Mall Preml.e. .nd Landlord'. Building might be impelred, W any cI.lm or lien or notice of
claim or lien on account of an aJleged 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'. Building or the Mall Preml..., Tenant .hell within twenty (20) days aIler 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 aalm or lien or other Charge to be
discharged within the period aforesaid, th.n, In addition to any other right or remedy II may heve, Landlord may, bot .hall
not be obligated to, dl.charge the same by payment, deposll or by bonding proceedings, and In .ny .uch event Landlord
sh.1I be entitled, W Landlord so elects, to compel the prosecution of an action for the forecIo.ure of the .ame by the
claimant and to pey \he amount of any judgment in favor of \he clelmant with Interea~ coats and allowances, Any amount
.0 peld by Landlord and all Interest, costs .nd expenses, Including .ttorneys' fee., Incurred by Landlord In connection
therewith. .hall con.titut. Additional Rent payable by Tenant under this Lease and .hell be paid by Tenant to Landlord on
demand, Nothing h.reln contained .hall obligate Tenant to pay or discharge .ny Charge created by Landlord,
(b) Tenant shell pay promplly all person. furnl.hlng labor or materl.l. with '"-' to any work by Tenant or
Tenant'. contractor In or .bout the Preml..., No work which Landlord permits Tenant to do .haIl be deemed to be for the
immediate u.e and benalll of Landlord .0 that no mechanic.' or other c1.lm, lien or other Cherge .hall be allowed agaln.t
the e.tate, right, title or Int.....t of Landlord by reason of any con..nt given by Landlord to Tenant to do work In or about
the Premises or provlde materials therefor. Nothing contained tweln shall Imply any consent or agreement on the part of
Landlord to .ubJacl Landlord'. estate to liability under any mechanics' or other lien law,
ARTICLE 3: TERM
Section 3,01: TERM OF THIS LEASE,
The term of this Lease (.ometlme. herein called \he "Term') means th. period of the "Interim Term" (hereatter
defined) followed immediately by th. period of the "Rent Term" (hereinafter daIlned), The "Interim Term" m..ns the
period commencing on the date of thl. Lea.. .nd ending on \he date Immediately preceding the Rent Commencement
Date, The "Rent Term. means \he period commencing on \he Rent Commencement Date and andlng on the Expiration
Date, a. extended pursuant to Saction 21.02 hereof or by agreemant executed by L.ndlord and Tenant or sooner
terminated 88 provided herein, .. the case may be, During the Interim Term, W Tenant I. not open for bu.lne.s In the
Premise., all of the provl.lon. of thi. L.... .hall .pp1y except that Ten.nt'. obligation to pay Rent .hall abete, other then
for utilities and trash charges.
Section 3,02: YEARS,
The term "Y...... means each successive tv.<elve (12) month period from January 1 through December 31
occurring during the Term, plu., W applicable any Partial Year, "PartIal Y_ mean. the period between and Including the
Rent Commencement D.te, W \hat date I. not J.nu.ry 1, .nd the next .ucceedlng December 31 .nd, Wapplicable, W the
Term end. on other than a December 31, the period beginning on the last Janu.ry 1 of the Term and ending on the la.t
day of the Term,
ARTICLE 4: RENT
Section 4,01: TENANTS AGREEMENT TO PAY RENT,
T.nant hereby agrees to pay for the right of u.e and occupency of the Premises during the Rent T.rm, .t the
limes and in the manner herein provided, the Minimum Rent, Percentage Rent and Additional Rent. As used in this lease,
the term "Rent" means, coUectlvely, the Minimum Rent, Percentage Rent and Additional Rent.
T -Mobile(WIIdPsglng)-CapItalClty-Kloak-FINAL
June 8, 2005 \ Mlller/CB
7
r
Secllon 0\.02: RENT COMMENCEMENT DATE,
As used In this L.as., th. term "Rent Commen_.m Dille" shall mean the .arll.r of:
()
(a)
D.."); or
the date on which Tenant Initially opens its business to the public in the Premises (the "Aetu81 Opening
(b)
the calendar date set forth as the Required Opening Date in the Fundamental Lease Provisions.
Section 4,03: MINIMUM RENT,
(a) The base rent T.nant shall pey Landlord for each Year shall be the amount set forth in the FundamenteJ
Lease ProvJsk)ns as the Minimum Rent per Year and shall be payable In twelve (12) equal monthly Installments, in
advance, on th. f.sl day of each'caI.ndar month,
(b) The bese rent T.nant shall pey 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. AI, uHd in this Lease,
"Partlel V..r Frectlon" means a fraction, the numerator of which Is the number of days in the applicable Partial Vear, and
the denominator of which is three hundred sixty-five (385), The bas. rent peyab/e for a Partlal V..r shall be paid In equal
monthly Installmenm, In advance, on the first day of each calendar month, axcept that W the Rent Commencement Date Is
not the first day of a calendar month, then that portion of .uch base r.nt which Is atlrlbUtabl. to the days In that first partial
calendar month shall be paid. in advance, on the Rent COmmencement Date.
(c) Th. baa. rent peyabl. by Tenant pul'Sll8nt to SectIon 4,03(a) or (b), whichever I. applicable, Is called the
"Minimum Rent" In this L_., Minimum Rent sh.11 be prorated for pertlal months, Wany, W the Minimum Rent Increases
durlng th. Rent Term, for the purpose of determlnlng the d.te on which Minimum Rent Increese(.) become effectlv., a
partial month shall be disregarded.
(d) W, at any time durlng the Term the Shopping C.nter shall be expanded by the addition of on. or more
Majors' Premls" or the Shopping Center I. .xpanded by more then 50,000 square teet of GLA, Tenant agrees that the
Minimum Rent provided In the Fundamental Lease Provision. .hall be increased by fifteen percent (15%) upon the d.te
.ach such .ddftlonal Majors' Premises first open. for bu.ln..s or the opening of the exp.nded Shopping Cent.r, Landlord
agrees thai the Break Point .hall be likewise Increased by fifteen percent (15%),
Soctlon 4,04: PERCENTAGE RENT_
(a) In addftlon to Minimum R.nt, Tenant shell pay Landlord percentage rent (her.in called "P-'-P
Rent") as determined by this AttlcI. 4, The pernentage Rent for each Year shall be an amount equal to the "PorcenIIige"
(which I. set forth In the Fundamentel L.... Provisions) multiplied by the .mount of Gro.. Sales made during such Year
In .xces. of the appllcab\e Break Point set forth In the Fundamente! L.... Provlolon., Th. Percentage Rent for each
Partial Vear shall be an amount equal to the Percentage multiplied by the .mount of Gros. _ made during .uch Partlel
Vear In .xcess of the Partial Vear Break Polnl The term "PortIaI V_ Breek Point" .ha11 mean an amount equal to the
Br.ak Point multiplied by the Partial Veer Fraction for the applicable Partial Veer, For the purposes of thl. L...., the
Break Point and Partial V..r Break Point are collecllvely referred to a. the .B...... PoInf,
(b) In .ach V.ar or Partial V..r, T.nant shall be obligated to pey P.rcentage Rent beginning with the first
month In which the aggregate amount of Gross Sales mad. for such V..r or P.rtlal Veer axceed. the Break Point.
T .n.nt .h.1I pey Pernentage Rent (In addition to Minimum Rent and Additional Rent) for each .nd fNery .ucceeding
month during the remainder of such Year or PartIal Vear on all additional Gross Sales, Each payment of Percentage Rent
shall be peld by T.nant to Landlord without dem.nd and otherwl.. as ..t forth in this Artk:Ie 4 together with Tenanr.
monthly .tatement of Gros. Sales provided for In SectIon 4,06, subject to the annual adju.bnent provided for In such
Section 4,06,
(c) In the event arYf Break Point Is .ubject 10 adjualm.nta during the term of thl. L...., and the date on
which any such adjustment I. to occur (h.reafter referred to as the "Rentm AdJuatment Dele") Is other than the first day
of a V.ar, the Break PoInt for the V.ar in which the Rental Adjustment Date shall fall shall be the sum of: (1) the initial
Break Point multiplied by a fraction the numerator of which shaH be the number of days In the period comm.ncing on the
first day of the V.ar In which the Rente! Adjustment Date shall fall and ending on the dey Immediately prior to the Rental
Adjustm.nt Date and the denominator of which .hall be three hundred .ixty-fiv. (365), plus (2) the latter Break PoInt
multiplied by a fraction, the numerator of which shall be the number of days In the period commencing on th. Rental
Adjustment Dele and .ndlng on the last day of the Veer in which the R.nta1 Adjustment Date .hall fell and the d.nomln.tor
of which shall be thr.. hundred .ixty-fiv. (365),
Section 4,05: GROSS SALES,
tal The term "G..... Sol.." mean. th. toteJ gross receipts and receivables of all merchandise, wares and
other goods .oId or leased and the ectuel cherges for all servlcea performed, busineSs conducted and accommodations
rendered by Tenant and by any subtenant, licensee. conceasionaire and other occupant In, at, from, or arising out of the
us. of the Premises, whether whoiesal. or retail, whether for cash or credit, or otherwise, and Including the valu. of all
con.lderation other than money received for any of the foregoing, without r..erve or deduction for inability or fa\lure to
collect, Including but not limited to saJes, leases and services:
(I) where the orders therefor orlglnate In, at, from or arlsl"" out of the use of the Premises, whether
delivery or performance is mad. from the Premises or from som. other piece and r~leos of the piece of bookkeeping
for, peym.nt of, or collection of any acoount; or
(II) mad. or perfonned by mall, telephone, 1-..01. webslte or similar m..n. 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: CK
T -MobIIe(WIIdPeglng}-CapIlaICIty-Kiosk-FINAL
Juno 8, 2005 \ Mlller/C6 8
c 0
(Iv) which Tenant, and eny subl8n8nt, licenIe8. COIlC8IIlonalre and 'other oocupant, In the normel and
I 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 cred~ sale
shall be treated as a sate lor the full price In the month during which such sale Is made, irreopactlve of whether or whan
Tenant receives payment therefor. No franchise, value added tax, capitaJ stock tax, tax based upon assets or net worth or
gross receipt tax, and no income or aim"ar ta)C. based on income or profits shall be deducted from Gross Sates.
(b) Only the following shall be excludad from Gross Sales:
(i) any exchange of merchendise between stores of Tenant when such exchange is made solely for
the convente"' operaUon of Tenant's business and is not for the purpose of consummating a sale made in, at or from the
Premises;
(II) retums to suppliers, shIPPB'" or manufacturer1l;
(iii) cash or cred~ refunds to customers on transection otherwise included in Gross Sales:
(iv) sales 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
T anant to any govarnment for any s_ or excise tax Imposed by law altha point of sale,; and
(vi) notwtthstandlng anything to tha contrary set forth herein, Tenant's Gross Sales shail not Include
activation. alrttme, access and all other communications servtce charges, phones, data devtoes. or hardware. Only
acoes8ones and equipment shall be included for purposes of calculating Tenant's Gross Sales.
Sectlon 4,00: REPORTING OF GROSS SALES; YEAR END ADJUSTMENT,
(a) Tenant shall furnish to Landlord within twenty (20) days after tha end of each cal8nder month during tha
Term a complete statement (tha "Monthly R_rt"), certIf1ed by Tenant (or a reaponsible financlel oflIcer thereof ~ Tenant
Is a corporetion), setting forth (I) the amount of Gross Sales during such month, (U)tha __ amount of Gross Sales
during such Year (or Partlel Year, as the case may be), Including such month, (III) the amoun~ ~ any, by which such
aggregate amount of Gross Sales exceeds the Break Polnt, and (Iv) the amount of Percentage Rent previously paid by
Tenanl 10 Landlord for such Year (or Partial Year, astha 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 10 Landlord within sixty (60) days after tha end of each Yeer e complete statement
(the "Y..r1y Repol1") certIf1ad by the chief financial oflIcer of Tenant, showing In reuonable detail the amounlof Gross
Sales during such Year and the amount paid to Landlord pursuant 10 SectIon 4,04(b) lor such Yeer, The Yearly Report
shall be accompanied by the signed opinion of the person certifying tha Yeariy Report specifically stating that such person
has read the def1nltlon of .G...... S_. contained In this Lease, that such person has examined the Yearly Report of
Gross Sales of such Year, that such person's examination includad such tests of Tenanfs books and records as such
parson considered neceuary under \he circumstances, and lhal tha Yearly Report accurately represents the Gross Sales
of such Year.
(c) An adjustment shall be made with the fumlshing of each Yearly Report with reapact to Percentage Rent as
follows: ~ Tanant shall have paid to Landlord an amount greater than Tenant Is required to pay as Minimum Rent and
Percentage Rent under tha terms of SectIons 4,03 and 4,04(a). Tenant shall receive a cred~ of such excess against
paymants of Minimum Rent next becoming due to Landlord; or, ~ Tenant shall have paid an amount less than was
required 10 be so paid. th8n Tenant shall forthwilh pay such difference, In no evenl, however, shall the sum of the
Minimum Rent and Percentage Rent to be paid by Tenant and retained by landlord under the terms of Sect10ns 4,03 and
4,04(a) for any given Year be less than the Minimum Rent for such Year,
(d) Tha reports required by this Section 4,06 shell be delivered to Landlord at the notiCes address of landlord
or 10 such other person anellor 10 such other place as may be designated from time to time by notice from Landlord to
Tenant. If Tenant shaU fell to deliver any Monthly Report anellor Yeariy Report when due, in addition to all of Landlord's
other rights and remadles heretJnder, Tenanl shall pay to Landlord, as Addltlonel Rent, an amounl equal 10 Twenty Five
Dollars ($25,00) per day for each day such statement Is overdue,
Section 4,07: TENANTS 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 prlnaples. Furthermore, Tenant
shall keep al all times during the Term, at tha Premises or at the home Of ,egIonaI office of Tenant. full comple\e and
accurate books of account and records In aCCOldance with generally accepted accounting practice with reapact to all
oparatlons of tha business conductad In or from the Premises, Including the recording of Gros. Sales and the receipt of all
merchandise and other goods into and the delivery of all merohandise and other goods from tha Premises during tha
Term, and shall retain such books and records, coplea of all tax reports and tax returns submitted to taxing authorl\ies, as
well as copies of contracts, vouchenl, checks, Inventory records and other documents and -" In any way relating to
the ope<atlon of such buslnesa lor at least three (3) y&8l'S from tha end of the period to which \hay are applicable, or ~ any
aud~ Is required or . controversy should arise between the parties _ ~Ing the Rent payable heretJnder, until such
aud~ or controversy Is terminated even though such retention period may be after the exptratIon of the Term or eariier
termination of this Lease, Such books and records shall be open at all reasonable times during the aforesaid retention
period 10 the Inspactlon of Landlord or Its duly authorized repreaentativel, who shall have full end free accaas to such
bOoks and records and the right to require of Tenant, its agents and employees, such Information or explanation and aud~
thereof and the right to requlre Tenant to make such books, ,ecords and other ma_ which Tenant Is required to remln
avaUable at the Premises for such examination and audit.
(b) The acceptance by the Landlord of payments of Percentage Renl shall be without prejudice to the
landlord's examination and audit rights heretJnder, Landlord mayet any reasonable time, upon ten (10) deys' prior written
notice to T enanl, cause a complete aud~ to be made of Tenanr. enUre books, records and other materiels which Tenant Is
required to retain (including the books and records of any subtenant licensee, concessionaire and other occupant) for all
H~obIIe(WlldPaging~apIlalCny.Klosk,FINAL
June 8, 2005 \ MIlterlCB
9
or any part of the three (3) year period imCedlately preceding the day of the giving of.ed nollce by Landlord to Tenant, ff
, .uch audtt .hall reveal a daftcieney in any peyment of Percentage Ren~ Tenant .hall forthwith pay to Landlord the amount
of the deficiency,
(c) ff .uch audtt .hall disclose that (i) any of the Yearly Reports undllnllate Gros. Sales during the reporting
period of tha report to the extent of two percent (2%) or more: or (II) Tenant has not recorded Gross Saiea, or kept books
of account and records, a. and for the period required by this SactIon 4,07: or (ill) ff Tenant .haI1 be delinquent in delivering
to Landlord the Yearly Report or Monthly Reports for two (2) consecutive months, or mora than twIca in any Year or Partial
Year, then .uch undanllatement, failure or delinquency .hall be an Event of Dafault, In addition, In the event of such
understatement or failure, Landlord shall have the right to bill to Tenant the amount of any defIclency In Percentage Rent
and tha rea.onable cost of said audtt which shall be paid by Tenant within ten (10) days after damand which defIclency will
bear interest at the "Delilull Rate" (defined In Section 16,03 hereof) from and after the date tt .hould have been paid until
paid,
(d) In the event Tenant violates the provisions of Sections 4.06 or 4.07 or both and as a result of such
violation, Landlord, or its duly aulhortzad representatlvas, is unable to conduct a proper examlnatlon and/or audl~ the
parties agree that Landlord .hall have been deprived of an Important right under this Lease and, as a resull theraof, will
suffer damages In an amount which 1I not readily .Icertalnabte and thus, In such event, Landlord, In addition to and not in
ileu of any other remedies which Landlord has under this Lease, at law or In equity, shall have the right, at its option, to
collect, as liquidated damages and not as a penalty, an amount equal to -.ty percent (20%) of the greater of (i)
Percentage Rent reported for the period or pariods in question, or (II) the annual Minimum Rent payable for the period or
peliods 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 additional rent (herein sometimes
collectively called "Addltlon.1 Rent") aU other amounts, sums of money or charges of whatloever nature required to be
paid by Tenant to Landlord pursuant to thl. Lease, whether or not the same is designated as "__ Rent", The
terms "Taxes", "Tax Charge', "CAM Sum" and "CAM Charge" are defined In ArtJcIes 5 and 8, respectively. In computing
the Tax Charge, the CAM Charge and any other charge to Tenant computed on the same or substantially similar baslli as
the Tax Charge or the CAM Charge (collecllvely "Other Uke Chvgee"), the net payments by the occupant of the Majors
and Junior Majors to Landlord toward the Taxes, the CAM Sum or the sum. on which Other Llka Charges are based
(coIlecIlvely the "OLC SUIlllI.) shall be epplied re.pactively to reduce the Taxes, the CAM Sum and the particular OLC
Sum before apportionment and datarmlnatlon of the Tax Charge, CAM Charge or Other Llka Charge to be paid by Tanant
and for the purposes of computing the Tax Charge, the CAM Charge and .uch Other Like Charge, the danomlnator of the
GLA Fraction shall not Include tha GLA of the Majors' Premise. and the Junior Majors' Preml...,
Section 4,09: WHERE RENT PAYABLE AND TO WHOM: NO DEDUCTIONS,
Rent payable by Tenant undar this Lease (whether Minimum Rent, Percentage Rent, or Additional Rent) shall be
paid when due without prior demand tharefor (unless such prior damand Is expressly provldad for In this Leasa), shall be
payable without any deduction. or setoff. or countarclalm. whatsoever (except for credits expres.1y permitted by this
Leasa) and shall be paid by Tenant to Landlord at the payment addre.. of Landlord sat forth In the Fundamental Lease
Provl.lons or to such payee and/or at such other place as may be designated from time to tlma 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 Tenan~ Any Ren~ or Installment _, which Is not
paid by Tenant to Landlord within seven (7) calendar days after tt Is due shall bear intere.t at tha Oefautt Rete, In the
event any In.taIlment of Minimum Rent or other sum under this Lease .haIl not be peid whan due, a .LAte Ch"'lla' of five
cents ($,05) per each dollar so overdue may be charged by Landlord, a. Additional Ren~ for the purpose of defraying
Landlord's admlni.tratlve expenses Incident to the handling of such overdue payments, ff Tenant pays any installmant of
Rent by chack and .uch check I. returned for Insufficient funds or other reason. not the fautt of Landlord, then Tenant
shall pay Landlord, on damand, a processing fee of One Hundred Oollars ($100,00) per returned check plus all eppllcable
Late Charges and ff three (3) checks are retumad for Insufflclant funds or other reasons not the fault of Landlord, ali
subsequent payments to Landlord by Tenant shall be in the form of either a certified or cashier's check.
ARTICLE 5: TAXES AND ASSESSMENTS
_on 5,01: TENANTS TAX CHARGE,
Tenant shall pay to Landlord in each calendar year, 8S Additional Rent. Tenant', share of all real estate and other
ad valorem taxes and other assessments. impositions. excises and other governmental or quasi-govemmen~ charges of
every kind and nature (Including, but not limited to, general and .peclal ......ments, _ and lira district a.....ments,
foraseen as well as unforeseen and ordinary as well as extraordinary) with respect to the Shopping Cantar end all
improvements thereon or any part thereof. Such taxes and assessments are collectively called the '7...... in this Leese.
Tenanf. share of the Taxe.ln aach calendar year (the "Tax Ch_") shall be an amount equal to the product obtained by
multiplying the Taxes applicable to .uch calendar year by the GLA Fraction (with daHy proratlon for any Partial Year),
"Tax.." shall also Include Landlord'. reasonable costs and expense. (Including statutory Interast, H any) In obtaining or
attempting to obtain any refund. reduction or deferral otTaxes.
Section 5,02: PAYMENT BY TENANT,
(a) Payment of the Tax Charge required undar this Article 5 shall be paid by Tenant in equal monthly
installments in advance in such amounts as are estimated and bHled by Landlord based upon the total Taxes payabte in
each calendar year. Landlord may revise Its estimate and may adjust such monthly payment at the end of any calendar
month, Tha first such Installmant shall be due and payable by Tenant on the Rent Commencement Date (prorated for the
remaining number of days In the calendar year) and subsequent Installmants .hall thereaftar be due and payable at the
beginning of each en.ulng calendar month during the Term, In addition to the payments provided for In the Immediately
precadlng sentence, H' prior to the Rent Commencemant Date, Landlord shall have prepaid all or a portion of the Taxes
T-MobIIe(WIIdPaglng}CspIIaICtty..Kloak-FINAL
June 8, 2005 \ MllleriCa 10
o
,applicable to the Term, the Tax Charge .haIllnc1ude end Tenant .hall reimburse to Laridlord the Tenanrs .hare of .uch
Taxe. (calculated in accordanca with the provisions of 5tction 5.01), on or before the Rent Commencement Date,
Landlord .hall send to Tenant an Invoice .ettlng forth Tenanr. .hare of .uch Taxe., together with copies of receipted bill.
evidencing Landlord'. payment of.uch Taxes,
r
(b) After Landlord ha. recelved the Tax bill. for each calendar ~r, Landlord will notify Tenant of (i) the
amoont of Taxes on which the Tax Cherge 1. based, (II) the .moont of .ny refund, raductlon or deferral expensea, (IIi) the
total GLA of the Preml... and Lendlord'. Building on which the Tax Cherge I. based .nd (Iv) \he .mount of \he Tax
Ch.rge, If the aforesaid monthiy payments on .ccount of the Tax Ch.rge for a given calendar year .re greatar than
Tensors share of the Taxes payable for a given calendar year. Tenant shall recetve 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 .hall forthwith pay Landlord the difference,
Sactlon 5,03: TENANTS ADDITIONAL TAX OBLIGATIONS.
(a) Tenant shall pay before delinquency any and all taxes, aasessments, Impositions, excises, fees and other
charge. levied, assessed or Imposed by governmental or qua.l-governmental authority upon Tenant or Its bu.lness
oper.tion, or based upon the u.e or occupancy of the Premlsea, or upon Tenanr. leasehold Intarest, value of the kio.k,
trade fixture., furnishings, equipment, leasehold improvement. (Including, but not limited to, those required to be mede
pursuant to Tenanrs Work) a~erations, changes and additions mede by Tenant, merch.ndlse .nd peraonal property of
any kind owned, In.talled or u.ed by Ten.nt in, from or upon \he Preml..., W the property of Landlord Is included In any of
the foregoing nem., the aforesaid taxes, 8SS8SIlII1ents, Imposition., excises, fses and other charges .hall nonetheles. be
paid by Tenant as herein provided, Tenant .haIl pay, when due and payable, eny .ale. tax, or other tax, as....ment,
imposition, exclse or other charge now or hereafter levied. assessed or Imposed upon or against this Lease or any Rent or
other .um. paid or to be paid hereunder, or Tenent'., Landlord'. or Agenr. Intarest In thla Lsese or any Rent or other
.um. paid or to be paid hereunder, Shoold the .pproprIate taxing .uthority require thet any tax, .....oment, imposition,
excise or other ch.rge referred to In thl. Section 5,03(.) be coHected by Landlord or Agent for or on behalf of .uch taxing
authority, then .uch tax, asse..ment, imposition, axclse or other ch.rge .hall be paid by Tenant to Landlord or to Agent
monthly a. Additional Rent In accordance with the tenn. of any notice from L.ndIord or Agent to Tenant to.uch effect,
The taxes, ...es.ments, impo.ltIon., excise., fses .nd other charges described in thl. Section 5,03(.) .haIl be the
obligation of Ten.nt and not Landlord or Agent. W .ny tax, ......ment. Impo.ltIon, axclse, fee or other charge covered by
this Section 5,03(.) I. Imposed on Landlord or Agent, Tanant .h.1I pay the .ame 10 L.ndlord within thirty (30) days after
receipt of each bill therefor,
(b) Nothing herein contained shall be con.trued to include In Taxes any Inheritance, estate, .ucces.ion,
transfer, gift, franchise, corporation, net Income or profit tax or capital levy thet Is or may be Imposed upon Landlord:
provided, however, th.t. K at any time during the Term the method. of taxation prev.illng at the commencement of the
Term .h.1I be .Iterad so that in lieu of or as . .upplement to the whole or any part of the taxes now levied, ......ed or
imposed on real estate a. .uch there .hell be levied, ...e.sed or impo.ed (I) . tax on the rents received from .uch real
estate, or (i1) . Ilcen.e fee measurad by the rents receivable by Landlord from the Shopping Center or .ny portion thereof,
or (iil) . tax or Iicensa fse Impo.ed upon L.ndlord which I. othelwtse mea.ured by or based In whole or In part upon the
Shopping Center or .ny portion thereof, then the same .hail be included in \he computation of 'Taxe.' hereunder,
computed a. W the .moont of .uch tax or fse .0 payable Mre that due W the Shopping Center Mre the only property of
L.ndlord .ubject thereto. W .ny gross receipts tax .hall be payable by Landlord, Tenant .hall pay the portion thereof
attributable to Landlord's receipts from this Lease.
ARTICLE 6: SERVICES
Sactlon 6,01: UTILITIES,
(a) During the Term, Tenant .hall be .oIely respon.lble for and promptly pay all charge. for heat, water,
electricity, sewer rents or charge., .prinkler charges, A,D,T, or other alarm .ystem, water _ent facUity cherge., and
any other utility u.ed or con.umed In the Premlsea or In providing heating and air conditioning to the Premlsea together
with all connection and service ch.rges .nd all taxes or other charge. levied on such uIJlltles. Should Landlord elect or be
required to .upply or m.ke .vallable any utility u.ed or con.umed .t the Premlsea, Tenant _ to purcha.e.nd pay for
.ame, as Additional Rent, every month in tha Term: provided that Tenant .hall not be obligated to pay to Landlord an
aggregate annual .um therefor In excess of the aggregate annu.' .moont therefor which Tenant would otherwise be
obligated to pay for .imllar u\JIity usage .nd .ervice es . retei cu.tomer of the public utility or municipal .uthority then
.upplying .uch utility to \he Shopping Center. In addition, Tenant .haIl .1.0 p.y any taxes. surcharges. Imposition.,
penalties or other eddltlonal charge. .pplicable to \he utility service being supplied, provided that .uch taxes, surcharges,
Impo.ltlon. or other charge. are required by I.w to be collected from Tenant or are paid by Landlord to Its .uppller of the
utility .ervlce in question, Landlord may, at Its option, In.tall an Energy M.nagement System to eII1cIentty conserve utility
u..ge .nd Tenant agrses to pay monthly, the .um of Fifty ($50,00) Dollara es Tenanrs .here of \he Energy M.nagement
System purch..e, In.tall.tion, m.intenance and upgrade cosls, If permilled by law, Landlord .haIl h.ve the right at any
time and from time to time during the Term to etther contract for service from a different company or companies providing
utility servlca to the Shopping Center,
(b) In the event the Premises does not presenUy contain an electric or other utility meter, at Landlord's
reque.t, Tenant .hall, within forty-five (45) days after receipt of .uch reque.t and at Its sole cost.nd axpanse, In.tall .
meter of a type .pproved In adv.nce by Landlord. There.fter, et Landlord'. request, Landlord and Tenant .h.1I enter Into
an amendment to thla Lease specifylng the procedures for reading such meter and the rendering of bills to Tenant for the
utility being so meterad, In the event L.ndlord or the local .uthorlty, munlclpelity, uIJlity or other body IUpplles water .nd/or
sewer services end collects for .uch service .nd/or consumption, Tenant covenants .nd _ to pay the water and
sewer charge (both minimum .nd otherwl.e) and .ny other tax, rent, levy, connection fse or mater 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 luued in connection \Ntth the use, consumption, maintenance or suppty of water, or the water
or sewerage connection or system. Such chargee shall be based on metered readings or other formula speclf\ed by
Landlord,
T -Moblle(WIIdPaglng)-CapltaIClIy-KIoek-FINAL
June 8. 2005 \ Mlllerlea
11
,,'
o
(c) Landlord stlall not be liable or responsible for any loss, demago or expon.. Tenant may sustain or Incur
by reason of any chango, failure, cur1allment, Interruption, dISruptiOn, 'brown out" or dotect In tho supply or character of any
utillly supplied to tho Shopping Conter or Premls.. or W tho quantily or character of tho utUlIy supplied by Landlord or any
"Nice provider Is no ionger available or sullable for Tenant's requirements and none of the foregoing shall constitute an
actual or constructive eviction or .ntilte 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 8 manner 88 shall not waste energy or water or
burden or damago the utHIIy Hnos therein,
(d) Landlord may, after thirty (30) days notice to Tenant, cease to furnish any one or more of the utillly
services to the Premises, without any responslbHIIy to Tenant, except to connect at Tensnfs sole cost and expense,
Tenant's distribution facilities \horefOf with analhe\' souroo for the utHIIY service so discontinued,
Section 8,02: APPLlCAnON FOR UnLITIES,
Tenant shaH make all appropriate applicatiOns to the iocal utility compenl.. at such tim.. as shall be necessary to
Insure utilities being avaHable at tho demised premi... no later than tho commencement of tho term and pay all required
deposits, connection fees andlor charges for motors within the appllceble time period set by the local utillly company,
Section 8,03: TRASH AND GARBAGE REMOVAL,
Tenant shall be solely responslbfe for trash and garbage removal from the premiae8, Including the placing of all
trash and garb.go In containers provided by Landlord 'or .uch purpose, In the event Landlord e_ to 'urn Ish .uch
service to the tenanto In Landlord's BuHdlng, Ten.nt egree. to u.. only the ..rvlce provided by Landlord .nd to pay 'or
such service (including, without Hmltatlon, both tha cost of leasing contelners and the cost of remov.l) monthly, .s
Additional Rent, in .ccord.nce with a schedule of charges to be established by Landlord (tho "R_ H_Hng Charge"),
In no event shall Tenant be obllgeted to pay Landlord more for the Rofuae H.ndHng Ctlarge then tho prevelHng competltlve
rates of reputable Ind.pendent tra.h removal contractors for _ .lmH.r to thet provided by Landlord, Tensnt .hall not
dl.po.. of any hazardous moterlal. Of environmentally ..n.1tIve or restricted Item of we.te In any tra.h facII~1es provided
by L.ndlord, .nd In lieu thereof, Tenant .h.H errengo, .t lto sole cost .nd .xponse, to hove all such Item. removed from
the Pr.mls"" and Shopping Conter In accord.nce with all Governmental Requirements (herelnaftor deftned),
ARTICLE 7: USE OF PREMISES
Section 7,01: SOLE USE AND TRADE NAME,
T.nant cov.n.nto and egree. thet throughout th. Rent Tenn, Ten.nt .hall COI1tlnuously u...nd operate ell of the
Preml..s for the use set forth In the Fundem.ntal Lea.. Provlllon. and under T.nent'. Trade Name set forth therein,
Tenont .tlall not u.. Of porm~ the Premises to be used for.ny other purpose or under any other trade name without the
prior wrltt.n con..nt of Landlord, Tenant egree. that W T.nant or anyone e1.e claiming through or under T.nant uses the
Premi."" 'or . u.e or trade name not ..t forth In the Fundemental Leese Provision. without Landlord's prior wrtIIon
consent, .uch conduct .hall con.titut. .n Event of Dot.ult. Tenant .hall, .t Its .xponse, procure OIly and all gov.rnmental
licen... .nd pormlto, Including, wItI10ut limitatiOn, .Ign pennlts, required for the conduct of busl.... in or from the
Preml."" and .h.U, at all Ume., comply wItI1 the requirements of each .uch license .nd penn~. Landlord does not
repres.nt or warrant thet ~ wlU obtain for T.n.nt (or thet T.n.nt will be abl. to obtain) any licon.. or porm~,
Section 7,02: HOURS,
Tenant covenants and agrees that throughout the Rent Term, Tenant shall condnuousJy operate, conduct its
bu.In"". within and otherwi.. u.. th. Preml... in eccord.nce with the terms and condltlon. ", this Lea.., Including,
without UmitallOn, the provl.lon. of Section 7,01 hereof.nd .,1 of tho othor provl.lon. of thl. Article 7 (unles. th. Premise.
are rendered unfit for occupancy by rea.on ", fire or other casually, In which event Article 12 .hail COI1trol), Tenant will
keep the Premise. open for buslnes. to the public at least: (a) '"'"'Y Monday through Saturday from 10:00 a,m, untll9:3O
p,m,: .nd (b) a1.0 on Sunday from 11:00 a,m, until 7:00 p,m, (unles. prohibited by juri8dlctlonal.uthor1lieo) a. required by
Landlord, In addition to.ny olhe\' right or remedy, the Break Polnt.ha11 be reduced,.t Landlord'. option, on. per diem
ba.l. for .ach violation of tho foregoing and Ten.nt .hall pay to Landlord the Percentage Rent so computed by Landlord,
Ttla per diem reduction .hall be tho .mount of the .ppllceble Break Point divided by 360 for each violation, Tenant_
ttlat Landlord may c::hango tho foregoing bu.lnes. hours from Um. to time to reftect local cu.tom or ....onal .hopping
pett.rn. provided th.t .uch ch.ngo. are unWonnly .pplled to the mejority of r.taU tenento In Landlord'. BuHdlng, Tenant
.h.11 not be required to keep the Premises open during hours wilen the Enclosed Mall I. _ to tho public, The
requirement. of this Section 7,02 .re .ubject. wItI1 respect to any bu.lness controlled by governmental regulations In Its
hours of operetion, to the hours or operetlon .0 prescribed by such governmentai regul.tIonI and ere further subject to
appUcable federal, state, and local environmental and other laws. rules, or regulations, guidelines, judgments or orders.
Section 7_03: OPERATIONAL REQUIREMENTS,
Tenant agrees that It:
(.) will not In connection with th. Pr.mi... conduct Of pennlt to be conducted any .uclion, fire, benkruptcy or
goin9 oul of bu.in... sal.., or .imllar type ..ie, or utilize any unethical method of bu.ines.; provided, however, thet this
provi.lon .hall not restrict tho .bIOIute freedom (.. between L.ndlord .nd Ten.nt) of T.nant to delennin. lto own selling
pric.. nor .haH it preclude tho conduct of periodic, ....ona!, promotional or clearence .a1..;
(b) will not u.. or porm~ the u.. of .ny epperetus for sound and/Of light reproduction or ....namlaalon
InclUding loud.peakers, phonogreph., radIOS or television., or of any mu.lcallnstrum.nt In .uch manner th.t the .ound.
so reproduced, transmitted or produced .hell be .udlble beyond tho Intertor of tho Premi...; wlH not di8ltlbute, or cause to
be distributed, at the Shopping C.nter or In .ny part thereof eny h.ndblll. or olhe\' _sing or notices; .nd will not
conduct or penn~ .ny ectMtles thet might constitute a nuisance, or which are prurl.nt or othorwi8e not _11y
T -MobIlo(WUdPaglngrc.pltalCtty.Kloak-FINAL
Jun. 8, 2005 \ MlUarfCB 12
( ,")
con.idered appropriate In accordanca with .tandards of oparation for the Shopping Canter ..tabllshed by Landlord; will
not InstaN any antennae or other communlcatlon equlpmant on the roof of Landlord'. Building or anywhere on the axterlor
of the Premises;
(c) wiN k_ all mechanical apparatus free of vibration and nol... :""ich 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 permn the loading or unloading of merchandise, supplie. or other property, nor .hip, nor
receive oulside the area and antrance designated therefor by Landlord from tima to time; will not parmn the parking Or
.tandlng outslda of .aid area of trucks, trail...., or other vehlcta. or equipment angaged In such loading or unioadlng In a
manner :""ich may interfere with the u.e of any Common Areas or any pedestrian or vehicular u.e and good regional
.hopplng cento< practice; wiN u"' Its best efforts to completa or cau.e to be completed aN deliveries, loading, unloading
and ...Nlce. to the Premises prior to 9:3O a,m, each day;
(e) will not palnt or decorate any part of the e_lor or interior of the Pramlses, or chango the architectural
treatment, fixturing, decor or other appearance of the Interior or exterior of the Pramlses, without first obtaining Landlord's
written approval of such painting. decoration or change; al'ld will remOVe promptly upon order of Landlord any paint,
decoration or change :""Ich he. been applied to or in.talled upon tha e_r or interior of the Premises without Landlord's
Written approval:
(f) will keep the inside and outside of aJl glass in the doors and windows of the Premises clean and will
replace any cracked or broken glass wtth glass of the same kind, size and quality; will malntaln the Premises at its own
expan.e In a clean, ordorty and sanitary condnlon and free of 1_, rodenta, vannln, and oU1er peota and will u.e an
exterminator de.lgnated by Landlord and at tim.. de.lgnated by Landlord: will not bum or parmn undue accumulation of
garbage, tra.h, rubbl.h and other refuse; will (subject to Section 8,04) remova the same from the PremlsN to compactors
or other receptaclee 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 f_ral, .tate and local environmental and other laws, rule., regulation.,
guidelines. judgments and orders and all recommendation. of any public or private agency heving authority over insurance
rate. which now or In the future enact requiremanta with r..pact to the usa or occupancy of the Premlsa. by Tenant,
including, without Iimllalion. the requirements Imposed by the Amortcan. with DIsablItieo Act :""ich imposes requirements
raIatlng to tha de.lgn and u... of the Proml... end the requlromenta imposed by the Clean Air Act :""Ich Impo...., among
oth..... requirements relating to tha venting, u... of, and dl.posal of chlorofluarocarlJons and other rafrigeranta (coIloctfve1y
the "Govemmental Requlrem...ts"): will not usa or permn the u... of any portion of the Premises for any unlawful
purpose: and will conduct Its bu.ines. in tha Premi... in ai' respects In a dlgnlflad mannar and In accordance with high
standards of store operation;
(h) will provide, or cause to be provided all security within Its Premises as II d..m. approprlata:
(i) will 01.0 comply with and observe all rule. and regulation. astabllshed by Landlord from time to tima in
accordance with Section 8.05:
(j) wi" not permit the use of any portion of the Premises for soIicttatJons. demonstrations or any activities
inconsistent with reasonable standards of a first class shopping mall;
(k) will not u8e~ or permit to be used, the malls or sidewalks adjacent to the Premises, or any other space
outside of the Premises for the display or sale or offering for aale of any merchandise or for any other business,
occupation or undertaking;
(I) will provide or cause to be provided within the Premises, without COIlt or ""_ to Landlord, adequata
lighting and security for its Iicen..... Invlt.... and employees during .uch periods as the Premise. are open for bu.in....:
(m) will maintain at all tim.. a full staff of amployee. and a complate .tock of mercl1andlse and other good.
con.l.tent with the use of the Praml...;
(n) will conduct Its business to maximize Gross Sales;
(0) Tanant .heIl maintain tha Prami.as in first-cla.. condition throughout the Tarm of the Leasa and sheli
refurbish all worn surfaces to bring the same to like new condition, at Tenant's sole cost and expense, as same is
rea.onably neces.ary during the Tarm:
(p) will conduct Its labor ralations and Its ralallon. with ampioyees in .uch a manner as to avoid all .trlkes,
pickating, boycotts or hend bllling at or about the Pramlses and the Mall Promises, Tanant further agr... that W, during the
period of any work by or for Tenant In or about the Premises In connectlon with .uch work \hare i. a .trika, picketing,
boycotting, hend billing or other activity objoctfonabla to Landlord. Tanant .hall remO'la or causa to be removed from the
Preml.e. and the Mall Promises all parson., to the extent not prohibited by law, until .uch strika, picketing, boycotting,
hand billing or other activity ceases and the cau... thereof I. .ettled to Landlord'. satisfaction;
(q) will not, without obtaining Landlord'. prior written approval, :""Ich approval may be wIlhhaId in Landlord's
di.cretion, in.tall any .torage or propane tank, whether above or underground, at the Premises or In the Shopping Canter
and W Landlord shall consent to .uch In.talIation, Tenant will comply with all applicable laws, regulations and underwriter
raqulramenta concerning the In.taIlation, operation, and clOIura of .uch tank, Upon termination of this ~, Landlord
.hall heve the option of requiring that Tenant, at Tenanrs sole COIlt and a"""nsa, perform t..ta relating to the condition of
such tank and/or remove any tank Installed by Tenant and associated contaminated material, Tenant shall be deemed the
owner and operator of any tank Installed by Tenant. Tenant shall relocate such tank at Landlord's request and at Tensnrs
expanse, to another location acceptabIa to Landlord;
T -Moblls(WlldPsglngrcallltalCIIy-Klo.k.FINAL
June 8. 2005 \ MIIIorICB
13
( 0
,(r) will not install, or penntt'to be in.18l1ed or operate any coin or token'"pereted vending machine, game
machine, pinball machine, pay telephone., pay lock"",, pay _, _, am.....ment devk:e8 and machines for the sale
of beverages, food., candy, cigarette. or other commodlllee, excapt80lely lor u.. by Tenanfs employees in non se1es
area and not to exceed collectively two (2) machines or o!her devk:e8; and
(s) will not store, display, rent or setl any audio or video cassettes;
(I) will not, without Landlord's prior written conaent, place or maintain any article in the Common Area or
elsewhere on the exterior of the kiosk; and
(u) Tenant speclllcally agrees that both !he ganeral appearanca of !he kiosk and !he manner in which
Tenanfs merchandl.e Is diapleyed .hall meet !he standard. of a llrat-cla.. regional .hopping center, In the event that
Landlord shall give wriIIen notlce to Tenant of Landlord'. objection with ....pect to either or both of !he aforesaid matters
and Tenant, within sixty (60) days of such wriIIen notloe, falls to cure the objection to Landlord's satlslactlon, Landlord shall
have the right, in addition to all other rights and remadl.. .et forth herein, to declare Tenant to be In delautt of !he Lease,
Section 7.04: TENANTS USE OF ROOF, EXTERIOR WALLS, ETC,
NoIwiIhstandlng Tenant'. rights .et forth elsewhere In this Lea.., Landlord may erect additional storie. or other
.tructu.... over all or any part of !he Prem_, Landlord's Building and any other part of !he Mall Preml..., In connection
with .uch erection, or otherwl.., Landlord may retocate Tenanrs equipmenland may erect temporary .caffold. and o!her
aids to such construction at Landlord's sole ClOSt and expense.
Soctlon 7,05: OPERATION OF HVAC SYSTEM,
DeIeIad,
Section 7,011: EMPLOYEE PARKING AREAS,
Landlord may, from time to Ume, de.lgnate that par\k:ular porllOn. 01 the Shopping Canter parking areas (!he
"Empl_ Parlclnll _") are to be usad by Tenant and Its employees, or other Individual. worIcIng at or from !he
Preml..., ~ Landlord does 80, Tenant and Its employees .haIl pork their vehlclea only In !he Em~ Parking Areas,
Tenent.haIl fumiah Landlord with a list of Tenant'1 and emptoyaes' vehicla IIcanaa numberw within IIfteen (15) days_
Tenant opens for bulinea.ln the Preml..., and at Landlord'. requ..t, !he Tenant.hall_ notlly Landlord in Wliting
01 any addttion, delet10n or other change to or from such liat within live (5) days _ Landlord makes .uch request,
Tenant .hall notlly aach empioyee In Wliting of !he provl.lons of thi. Sectlon 7,011 prior to each employee commencing
amployment or work at or from !he Premises, ~ Tenant or any of Its emptoyaes do not perk Ihelr vehicles In the Employee
Parking Area., Landlord may give Tenant notice of .uch violation, W Ten.m does not cease such violation, or cau.e .uch
violation by the employee to """"e, as !he case may be, within two (2) days _ Landlord'. notice 01 vIoIadon Is given,
Tenant .hall pay to Landlord, a. Additional Rent, an amount equal to Twenty Five Dollars ($25,00) per day per violating
vehicle, For any .ubsequent violations, said Twenty Five Dollars ($25,00) per day per violating _ charge shall
commence without the neces.1ty 01 further notice, and Landlord .haII, In addition, have !he right to have \he _g
vehicles towed at Tenant's expense.
Section 7,07: NONoCOMPETIT10N COVENANT,
Deleted,
Sactlon 7,011: SIGNS AND ADVERTISING.
Tenant .hall not place or penntt to be placed on !he kiosk, any sign, banner, decoradon, iatterlng or adverti.ing
mailer (coiiectively a .alll".) without the Landlord'. prIOr Wlitien approVlll, Tenant .hall .ubmtt to Landlord reaaonabIy
detailed drawings of its proposad sign. lor review and approval by Landlord prior to utilizing same; however, Tenant may
without .uch approval ..... in !he store front professionally made reaaonably .ized .Ign. Indicating prices, .tyIe. and like
information, All sign. shall be in.ured and malntalnad at all Umes by Tenant In good condition, oparaUng order and repelr,
Flashing .Ign. are prohlbllad,
Landlord .hall have !he right, _ twenty-lour (24) hours prior wriIIen notice to Tenant and without liability lor
damage to tha Premiseo reasonably C8Usad !hereby, to remove any bam. diaplayed or affIxad in or to the Premise. which
Landlord determine. (In tt. reasonable Judgment) to be In violation 01 the provi.1ons 01 this Section 7,08,
Tenant will keep the .torefront .ign and diaplay windows In !he Premia.. lighted during all period. !het the
Shopping Center I. open to !he public and lor one-ha~ hour _ required buolnesa hours and lor such other perIOds a.
may be reasonably required by rules and regulations ..tablished In accordance with Secdon 8,05.
ARTICLE 8: COMMON AREAS
Sactlon 8,01: USE OF COMMON AREAS,
(a) Tenant and Its employee. and Invl\eeS are, except a. otherwl.e .pecillcatly provided In thl. Lea.e,
authorized, empowered and privileged during the Term to use !he Common Areas Ior!he~ reapec\lve Intended purposes
in common wtth other persons. Tensnrs right to use any meeting room or aud"orl~m. if any, in the Common Areas shan
be .ubject to .uch .chedules and payment of .uch lee. or charge. therefor a. Landlord may from time to time adopt
governing the u..thereof,
(b) Landlord .haI1 at all limes have !he right to utilize !he Common Areas including, wlthout limitation, the
Enclo'ad Mall lor promotion., exhibits, carnival type shows, rides, outdoor .hows, displays, automobile and other .hows or
events, the leasing or IlcenaIng of klo.ks, pu.h carts and food facllllles, landscaping, .eaUng area., ....onal displays,
T.MobIIe(WlldPsglng)-CapltalClty-Klo8l<-FINAL
Juna 8, 2005 \ Mll18rlCB 14
( q)
decorative Items, and any other use which, In Landlord', Judgment, tends to attract custOmers to, or benefit the customers
, of the Shopping Center,
SectJon 8,02: COMMON AREA MAINTENANCE SUM,
(a) The term .Common Area M..nt.n..... Sum' (or the .CAM Sum.) she" be charged and prorated in the
manner hereinafter set forth and shalt mean aIt luml )ncurred tn a manner deemed by Landlord to be rea80na~e and
appropriate and for the beIIt Intoreota of the Shopping Cenler In connection with the -"'tIon and maintenance of the
Common Areas and the Shopping Center (and any additions t_), Includlng, without limitation, the <:oIta and axpenses
of:
(I) operatlon,_ inspection and/or maintenance of the storm, santtary, electrical, gas, steam. water,
lelephone systems, lighting system (including poles, bulbs, and fixtures), and other utility systems, including pipes, ducts
and similar ~ems; direCtional silins and othar traffic signals, marl<ers, controls, slgl18 (Including all iclenllficatlon sigl18) both
on and off site:
(II) snow, ice, trash and garbage removal, pest control, and cleaning, painting, sweeping, striping and
repaving all parking surfaces. services areas and other porttons of the Common Areas;
(ill) operation and/or maintenance of all heating, ventilating and air cooling and other utility systems,
emergency waler and sprinkler, security, Ide safety systems, pumping systems, eIecIricaI systems and all escalator and
el8vator systems and any other Items. facilities, equipment, and system8 furnished by Landlord as part of the Common
Areas;
(iv) premiums and other charges for insurance to the extent provided by L.andlord, indudlng without
limitation, liability Insurance for pelllonal and bodily Injury, death and property damaga; Insurance covering Landlord's
Building and tha COmmon Areas against flre and extended coverage perils; theft or casualties; ~ers' compens..lon:
plate glass insurance for glass exduslvely serving the COmmon Areas; boNer Il18urance (d carried); Ioas.. borne by
Landlord as a resull of deductlbles or self-lnourod retenijons carried by Landlord under an Insurance policy 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 oxtarior planting, replanting and replacing of all flowers,
shrubbery, planta, trees and other landscaping within the Common Areas;
(vi) operation and/or maintenance of Landlord's Building's structure, Including, without limitation,
fiooIlI, doors, walls, calling, roofs, skylights, and windows:
(vii) maintenance and dopradatlon of all machinery and equipment used in the operation or
maintenance of the COmmon Areas <Induding but not limited to all ascaIators, elevatollland other vertical transpor\a\ion (d
any), security vehicles end eqUipment) and all pelllonal property taxes and other charges incurred in connection with such
machinery and equipment:
(viii) anncense and permit foos, any and all parking surcharges thet may resull from any environmental
or other laws, rul.., regulations, guidelines or orders;
(ix) the expense of tl181a11atlon and operation of loudspeaker systems, music program services, cable
television systems, or similar audio or video transmission systems;
(x) personnel, Induding without limitation, cleaning and maintenance poraonnel, Landlord's
management staff [which Indudes tha GenoraI Manager, Assistant Ma_, socratarios, bookkoopors and accountanta
(regardl..s of where the aforesaid personnel are located)] together with the undorms, payroll, payroll taxes and employee
benefits of an such personnel;
(xi) the expense of security personnel and equipment,' Including, without limitation, uniforms as well as
transportation and $WVemance equtpment;
(xli) all costs, charges, and expenses incurred by Landlord in connection with any change of the
Identity of the utility prov_ to the Shopping Canter;
(xlii) Landlord's supervisory charge In an amount equal to flf\oon percent (15%) of the total _agete
cosl of operating and maintaining the Common Areas, indudlng but not limited to those things listed in Section 8,02(a);
and
(xiv) expanding, adding to or reconflguring the COmmon Areas (or any portion thereof),
(b) Notwithstanding the foregoing, the CAM Sum shall not Include:
(i) the axpen.. of any repair or repiacement required of Landlord pUllluant to the reconstruction
obligations of Section 12,01;
(iI) depreciation (other then depraclatlon as abOve spoctf1ed): and
(Iii) any utilltl.. which are directly metered or submelered to tenants In Landlord's Building,
(c) Notwithstanding anything contained in this Lease to the contrary, In calculating the .CAM Ch_.
(defined in SectIon 8.03), the CAM Charge may be besad upon Landlord's ..tim_, which __ and paymonta
thereon shall be subject to edjustments In future billings to Tenant based on Landlord's actual coat, it baing underatood
and agreed that in dotonnining actual costs, Landlord In ita sole discretion, will make allocatlol18 of certain Items be_n
the Enclosed Mall and other portions of the Shopping Center of which the Enclosed Mall is a pert, which need not be
based on relative siZe or use.
(d) Landlord may cause any or all maintenance services for the Common Areas to be provided by an
Independent contractor or contractors or others and the costa therefor shell be induded In the CAM Sum, Except as
provided hereinabove, none of the costs for the original construction and InstaHadon of the Common Areas shall be
induded in the CAM Sum,
(e) If Landlord from time to time acquires, or mak.. available, additional land or improvements for parking or
other Common Area purposes, the CAM Sum shall also Includo all coata and expon... Incurred by Landlord in connection
with the operation or maintenance of said additional land and Improvements,
(f) The words "maintenance". "maintain" or "maintaining" 8S used in this Article 8 includes, without limitation,
all repairs. replacements and other work and service of any type whatsoever.
T -MobiI8(WlldPsglng~plI8ICity-Kloak.FINAl
June 8. 2005 \ Miller/Ce
15
o
Section 8.03: CAM CHARGE.
(a) Tenant shall pay to Landlord, as Addnlonal Rent, Tenant's shere of the CAM Sum in the manner set forth
in Section 8,03(b) end (c) below, Tenant's share of the CAM Sum for each calendar year shall be an amount equel to the
CAM Sum for thet period multiplied by the GLA Fracllon (the 'CAM Charg.'), For any Partial Year, the CAM Sum will be
muitiplied by the Partial Year Fraction with the resun multiplied by the GLA Fraction,
(b) Tenant shali pay Landlord on the Rent Commencement Date and on the first day of each calendar month
in the Term thereafter amounts estimated by Landlord 10 be Tenanh monthly share of the CAM Sum, Landlord may
adjust said amount at the end of any c:alendar month on the basis of Landlord's experience and reasonably anticipated
costs.
(c) Following the end of each caJendar year, Landlord shall fumish Tenant a statement covering the calendar
-' just explred, celIlfied as _ by an independent publIC accountant or an authorized representative 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 tne preceding Section 8,03(b). If Tenanrs aggragate monthly payments on acoount of the CAM Charge are
greater than Tenant's shere of the CAM Sum, Tenant shall receive a credn for the excess against monthly installments on
account of the CAM Charge next becoming due to Landlord: II said payments are less than said share, Tenant snail pay to
Landlord the difference forthwith,
(d) Landlord may heve heretofore elected to spreed, and may hereafter elect to spread, the amount of any of
the expenses of the CAM Sum over such period of years 81 Landlord shall determine by amortizing them over such
periods instead of including such expenses entirely in the year in which expended or incurred, in which event, the annual
amortization amount shall be deemed to be an expense Incurred durtng each year of the amortization period,
notwithstanding that such expenses may have been expended or incurred prior to the execution of this lease.
Sactlon 8,04: CHANGES BY LANDLORD,
As between Landlord and Tenant, Landlord shall at all times have the right and privilega of determining the nalure
and extent of the Common Areas and of making such changes, rearrangement, additions or reductions therein and th<<eto
from time to time which in Its opinion are deemed to be desirable or which are made as a result of any federal. state or
locai environmental or other law, rule, regulation, guideline, judgment or order, Including but not limited to, the location,
relocation, enlargemenl, reduction or addlllon of driveways, entrances to the Landlord's Building andlor Shopping Center,
automobile parking spaces, employee and customer perking areas (ff any), the direction and flow of traffic, installation of
escalators and elevators, landsceped areas, and any and all other facilities of the Common Areas, Landlord (or Its
designees) may from Ume to time make alterations, renovations, reductions, or additions anywhere within Landlord's
Building or to the Common Areas or other part of the Shopping Center or any lands or improvements added thereto,
construct additional buUdlngs or Improvements on the Common Areas or elsewhere and make -.tJons thereto, build
additionel stortes on any buildings, construct multi~evel or elevated or underground parking facilities, and construct roof,
walls, and any other Improvements over, or In connection with artt part of, or an of, the Common Areas in order to enclose
same.
Section 8,05: RULES AND REGULATIONS,
Tenant agrees that landlord may establish and from time to time change, alter and amend, and enforce against
Tenant, such reasonable rules and regulatJons as Landlord may deem necessary or advisable for the proper end efflclent
use, operation and melntenance of the Common Areas, provided thaI all such rules and regulations afIactIng T anant and
its invltees and employees shall apply equally and without discrimination to substantially all of the retail tenants in
Landlord's Building or substantlally all retail tenants engaging in cerlain acts or of a certain usa, The ru\es 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.
Sactlon 8,08: 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 condition and manner, Landlord shall, as bstween Landlord and Tenanl, al all times during the Term have
the sole and exclusive control, management and direction of the Common Areas, and shall provtde or cause to be
provided, securfty in the Common Areas at a level determined by Landlord (and Tenant shall provide, or cause to be
provided, adequate securfty within Tenanrs Premises as Tenant deems appropriate), Landlord may at any time and from
time to time during the T arm exclude and restrain any person from use or occupancy of any of the Common Areas,
excepting, nowever, Tenont and other tenants of Landlord and bona fide invn... of either who make use of said areas for
their Intended purposes and in accordance with the rules and reguiations astabllshed 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 the rights of oIhers to
use the same in common with Tanant, and n shell be the duty of Tenant to keep all of the Common Areas free and clear of
any obstrucllons or Interferences created or permitted by Tenant or resulting from Tenanfs oper8lion, Landlord meyat
any time and from time to time close aM or any portion of the Common AreIIs to make repelrs or changes, or to such extent
as may, in the opinion of Landlord, be necessary to prevent a dedication thereof or the accrual of eny rIgI1ts to any person
or to the public therein, to close temporarily any or all portions of the Common AreIIs and to do and perform such other
acts In and to Common Araas as, in the exercise of good business judgment, Landlord shell determine to be advisable
with a view to the improvement of the convenience and use thereof by occupants and tenants. their employees and
inv\tees.
ARTICLE 9: PROMOTION OF SHOPPING CENTER
AND MINIMUM ADVERTISING
Section 9,01: MARKETING SERVICE,
(a) Landlord hes established or will establish an edvertlaing and promotional service (herein called the
'M.rkatlng Service') to furnish end maintain adverllstll\l and sales promollons which, in Landlord's Judgment, win benefit
T -MoblIe(WIIdPaging}-CepltalCity-KIosi<-FINAL
June 8, 2005 \ MlllorlCB 16
1\ 0
the Shopping Center, Lendlord has astaDllshed or will astabllsh e fund (the "Markellnll SerIk:e Fund") to be used by
Lendiord to pay all costs end expenoeo a_led wIIh \he, formulation end carrying out 01 an ongoing program for the
advertising and other promotion of the Shopping CeI1li1t, fhe p!OljnIm may Include, wItIJout limitation, special evants,
shows, displays, signs, marqu....., decor, seasonal events, advertising for \he St1o\l\lln9 Cenlllr, promO\lOllaI IneralUle antl
o\her activities to markelthe Shopping Center based on sums collected from tenants, Tenant shall pay, as Its shere of the
cost and expanse of tile Marketing Service lor the base calendar year [as daflned In Sect10n 9.03 (a) set forth hereinllelov<]
of tha term of the Lease, tho amount set lorth In tho Fundamental Loase Provisions (herein called the "Markellnll Service
Ch.rg."), Tho Marketing Service Charge for any Partial Vear shall ba datermlned by multiplying Tenant's Marketing
Service Charge by the Partial Vear Fraction,
(b) Landlord may appoint an adviSOry committee, composed at least of a representative of Lendlord, a
ropresentative 01 oach Major, and a representative from each of six (6) tenants In Lendlord's Building to revieW the
advertising and other promotional activities provk:led. Such committee shall func::tion sotely in an advisory capacity subject
to Landlord's discretion. '
(c) In addition, Lendlord may usa the Marketing Service Fund 10 dolray the costs of administration of the
Marketing Service, including, without limitation, the salary and benefits of a marketing director and related administrative
personnel, rent and Insurance.
(d) Notwithstanding the provisions of this Artlclo g, Lendlord may, at any tlmo, In Its solo discrotion, decide
that Landlord will, on and alter a certain data t_, no longor provldo tho Marketing Service, Lendlord may ceaso
performing the Marketing SolVlce on tho date so spectfied by the Lendlord, provided that nothing horeln shall require
Landlord to broach or fall to perform any agreemant or obligation ~ has made wIlh or to any third person In connection wIIh
Iho Marketing Service, ~ Lendlord dotermlnea that ~ Is or may be at risk of any such breach or lallure, Lendlord need not
ceaso performing tha Marketing Service until Lendlord dotermlnea that such risk has passed,
(0) In tho evont that during tho Torm thoro Is (I) any renovation of tho Lendlord's Building or the Enclosed Mall
which also involves \he l'8I1OV8tlon of \he slorolronts of Ilfty porcont (50%) or more of tha existing tenants' spaces (a
"Storefront Renov.uon"): or (II) any oxpanslon of Lendlord's Building which Increases tho GLA of Lendlord's Building by
ton percent (10%) or more (a 'Bulldlng I!xpanalon"), than at \he time of a Storefront Ranovation or Building Expansion,
Tonant shall pay to Landlord (whone_ thoro Is and In each C8IO of a Storolront Renovation or a Building Expansion) a
special assessmont (tho "Special _men!") In an amount equal to tho Marketing Servlee Charge (and in addition to
tha Markatlng Sorvlco Charge) lor tho calondar year 01 complotlon of a Storofronl Ronovation or a Building Expansion,
Funds collected by tho Special Assossmonl will be used lor expansion/renovation advertising and/or special ovents to
promota the Storefront Renovation or the Bu>>ding Expansion,
(I) Landlord reservos tho right, In Its sole discretion, to recommonce providing \he Marketing Service at any
tlmo altor Landlord ceased providing tho samo,
Socllon 9,02: TENANT'S MINIMUM ADVERTISING OBLIGATION.
Deloled,
Socllon 9,03: ADJUSTMENTS AND CHARGES,
(a) Tho Marketing Service Charge shall be adjusted annually by a percentage equal to tha percentage
increasa or doer.... In tha oIectronlc, print and outdoor advertising ratea of the media used lor advertising and
promotions In tho pracodlng calondar year In tha media markotln which the Lendlord's Building Is Iocalod: provided,
howevor, Ihat tho Marketing Service Cl\arge shall not be loss than as set 'orth in tha Fundamental Lease Provisions, The
calondar year In which tho Rent Commencomont Date OCCUnl sholl be considered the base calendar year and every other
calendar year tharealtor a rovlsed base calendar year In computing \he adjustments hereunder, The Minimum Ad_lng
Charge lor any Partial Voar shall be dotermlned by multiplying Tonant's Minimum Advortislng Charge by tha Partial Vear
Fraction.
(b) Tho Marketing Service Charge shall be paid In equal monthly Installmonts, In advance, on tho first day of
oach month, oxcept that ~ tho Ront Commencement Date Is not on the first day of a calendar month, then that portion of
tho Markotlng Sorvlce Charge which Is attributable to tha days In that first partial calondar month shall ba paid In advance
on the Rent Commencement Date.
(e) landlord may charge all costs and expenses of providing the Marketing Service in any calendar year
against the budget tharolor, Said costs and expensos may Includo without limitation the following:
(I) the services of a marketing dlroctor and all stoll and outside consultants (Including professional
markotlng sorvlce organization) doomed _sary by Lendlord to carry out ofIoctlvely tha marketing and publiC relations
objoctlvo of tho Markotlng Service, Including without limitation all payroll, payroll taxos end omployoo benefits 01 any such
director and staff;
(Ii) such reasonabte amount of space within the Landlord's Building as may be necessary to carry out
tha Markoting Service, \he ronlal thorolor to be comparablo to tho rental for slmllar1y sized commercial space;
(III) all actual costs Incurred In odvertIslng and promoting tho Shopping Conter, Including without
limitation radio, newspaper, tetevlsion, direct and Indirect costs of services, art work, copy, printing. paper, stationery and
supplies; and
director.
(Iv)
such office equipment, utilities and telephones as may be deemed necessary by the marketing
(d) Tho markoting director and consultants shell be undor tho excluslvo control and supervision 01 Lendlord,
and Lendlord shell havo tho solo authority to omploy and discharge them or onller of thom and tho stoll of tho director,
(e) Notwithstanding tha apportlonmont 01 amounts to tha abov_scribed marketing and advertising funds as
sot forth In both this Articlo 9 and In Soct1on (k) of the Fundamantal Lease Provisions, Lendlord hereby ",""",es tho right
T -MobIIo(WlldPa9Ingj-CapilaICIly.J<losk-FINAL
Juno 8, 2005 \ Mlllor/Ca 17
( (')
from tlme-ta-time to allocete the total amount receIVed by Landlord for .ucl1 funds In any manner whatsoeVer Landlord, In
, its .ole discretion, deem. appropriate, 80 long .. any and ell such funds at1rIbutable to sald marketing and advertlslng
fund. are used only to defray the cost of the marketing end adVertI.lng program. initiated by Landlord and to market,
adverti.e and promote the Shopping Center,
Section 9,04: DISSOLUTlON OF MERCHANTS ASSOCIATlON,
In the event there presently exists a marchanfa Bssooiation in use in the Shopping Center. Tenant agrees that
Landlord shall have the unHateral right to take any steps required to tennlnate the &ame and to replace such ~hant'$
a..oclation with a merketing .ervlce, promotion fund, advertising fund, or eny other .1mllar enlily designated by Landlord in
which event, upon notice to Tenant, Tenant shall automatlceHy be deemed a member thereof and .hall contribute to the
same the amount whlcl1 Tenant Immediately prior to such termlnstlon was required to contribute to the merchanfs
association. Further, Tenant does hereby irrevocably assign to Landtord all of Tenant'. voting rights contained in any by.
law Of other similar document fohnlng Of governing the administration of any .uch merchanfs assoclation,
ARTICLE 10: CONSTRUCTION WORK
Section 10,01: APPROVALS AND STANDARDS,
T anant shall not perform any construction or make any aUerations or changes in or to the Premises at any Ume
during the Term (herein sometim.. collecttvely called 'Conslrucllon Work') WIthout Landlord'. prior written consent.
Tenant shal1 be directly responsible for 8fYt and all damages, including, WIthout limitation, damages to Landlord's Building,
the Premise. and the preml.es of other tenant. In Landlord's Building resulting from any of Tenanrs Con.truction Work,
whether or not Landlord'. con.ant therefor was obtained. Any and ell Construction Work which I. consented to by
Landlord shall be performed in accordance with (a) plans and .pecJlJcatlon. prepared by a licensed architect, or engi_r
and approved In writing by the Landlord before the commencement of the Construction Work, (b) all necessary
governmental approvals and permits, which approval. and permits Tenant .hall obtain at its sole _, and (c) all
applicable laws, rules, regulallon. and buHdlng codes retaIIng thereto, All Con.tnlctlon Work .hall conform to Landlord's
Store Design Criteria and .haII be performed In a good and WOI1<manllke manner and dalgently ptOHCIlted to complellon
to the end that the Premises .hall at all times be a complete uM except during the period of the Construction Work, Any
Con.tructlon Work performed by Tenant without Landlord'. consent .hall be returned to Its ortgInal condition at Tenant's
expense upon request by Landlord. Tenant shall 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 Ar...,
SectJon 10,02: INSURANCE AND RECONSTRUCTlON,
In the event Tenant .hall perform any permitted or required Construction Work, none of the Construction Work
need be In.ured by Landlord under .uch In.urance a. Landlord mey carry upon the Landlord'. BuHdlng not' shall Landlord
be required under any provision. of this Lease relating to reconstruction of the Preml.es to reconstruct or reln.tall any
such Con.tructlon 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 Tenan~ T.nant will carry and maintain, at Its sole cost and .xpens., the following types of In.urance. in the
amounts specified and In the form h.reinafter provided for:
(I) Commercial Generlll Liability Insu_, Commarclal general liability in.urance covering tha
Premi.es and T enanrs use thereof against claim. for 'peraonal and adverti.ing InJury" and 'bodMy Injury" or death,
'property damage' and 'product/completed operation.' liability (as the aforesaid terms are defined In sucl1 policy)
occurring upon, In or about the Premises and Tenant's activities in the Common Area, such insurance to afford protacllon
to the limit of not less than $3,000,000 regardless of the number of persons claiming Injuries or damages eri.lng out of any
one occurrence, The insurance coverage required under this SectIon 11,01 (a)(l) .hall, In eddltion, extend to any liability of
Tenant arising out of the indemnities provided for in SectIon 11,03, Therefore, such policy .hall not contein any exclusion
for contractual liability coverage for any of the foregoing coverages, The general aggregate limits under the lIabalty
in.urance polley or poIiol.. mu.t apply .eparataly to the Premises and to Tenanr. use thereof. The certlficete of
in.urance evidencing the commercial general liability form of policies shall specify on the face thereof that tha limits of
,uch policie. apply separataly to the Premi...,
(i1) Bolle... Boller and machinery Insurance in edequate amounts on ail fired objects and other fired
pressure ve..els and systems .....Ing the Premises (W any): and W the said objects and the damage that may be caused
by them or result from them are not covered by Tenanr. .pecJaI form coverage In.urance, then .ucl1 insurance .hall be In
an amount not less than $250,000 and be I..ued on a replacement cost basis,
(ill) Tenant Leuehold Improvements and Ptoperty, Insurance covering the kiosk, merchandi.e
and personal property from time to time in, on or upon the Premlses In an amount not less than one hundred percent
(100%) of th.lr fuil replacement cost from time to time during the Term, providing special form coverage,lne\udtng but not
limaed to, protection again.t the perIJ. Included with the standard .tate form of fire and broad form extended coverage
insurance policy, together with insurance against sprinkler damage, vandalism and mallcJous mischief. Any policy
proceed. from sucl1 insurance .haII be held In tru.t by Tenanr. In.urance company for the rapalr, recon.truction and
restorellon or repJacom.nt of the property damaged or de.troyed unless this L.... .hall cease and terminate under the
proviSions of Artiae 12.
(Iv) Workers' Compensotlon And Employer's L1alllllty. Workers' Compensation and Employer's
Liability in.urance affording .tatutory cov.raga and contelning .tatutory limits with the Employer'. Liability portion thereof
to have minimum limits of $1,000,000,00,
T-Moblle(WildPaging)-CapllaiClty-Klosk-FINAL
June 8. 2005 \ MIIIerICB
18
, 0
(v) B..,_ Inl.""ptIon Inauronce, Business Interruption Insurance equal to not less than f1fty
percent (50%) of the estimated gross eamingl (es defined In 1M s_ state form of buslneas Inlemlpllon insurance
policy) of Tenent at the Preml..s which insurance sheH be Issued on 8n .a11 risks. basis (or Its equivalent),
(b) All policies of Insurance provided for in Section 11.01(a} shall be iSlued by Insurance companies with a
financial rating of not le88 than A VII 81 rated In the mOlt current available -...r. ",.u,.nce Reporta". and quaUfled to
do busin..s in the state in which Landlord's Building is located, Tensnrs obligation to "",vide the Insurance coverage
specified in Section 11,01(a)(l) above shall not be affected by any deductible with respect to such policy or self Insurence
retention maintained by Tenant. Each and every such policy, except for WorkeA,' 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 nob from Landlord to Tenane;
(Ii) shall be for the mutual and joint _and proteetlon of Landlord and Tenant and any such other
parties in interest;
(ill) shall (or a certllicatethereof shall) be delivered to each of Landlord and any such other parties In
Interest within thirty (30) days prior to the expiration of each such polley, and, es often as any such policy shall expire or
terminate. Renewal or edditional policies shall be procured and maintained by Tenant In like manner and to like extenL
(Iv) shall contain a provlSlan that the Insurer will give to Landlord and such other parties in Interest at
leaslthlrty (30) days nollce In writing In advance of any material change, cancellation, termination or lapea, or the aIIecllve
date of any reduction In the amounts of Insurance;
(v) shall be written as a primary policy which does not contribute 10 and Is not in excess of coverage
which Landlord may carry: and
(vi) shall contain a provision that Landlord and any such other parties in interest, although named as
an additional insured, shall nevertheless be entlUed to recover under said policies 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 polley or pollci.. of
blanket insurance, covering additional Items or locations or insureds, provided, however, that:
(i) Landlord and any other parties In interest from time to time designated by Landlord to Tenant shall
be named as an addnionallnsured 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 poJicy of insurance;
(iii) any such policy or policies [except any covering the risks referred to In Section 11 ,01 (a)(i)J shall
specify therein (or Tenant shall furnish Landlord with a written statament from the Insurars under such policy specifying)
the am""nt of the total insurance allocated to the Tenanrs im"",vements and "",perty more specifically detailed In SectIon
11,01(a)(ili); and
(iv) the requirements set forth in this Article 11 ara 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) Landlord shall at all times during the Term carry and maintain the following types of Insurance In the
amounts specified and in the form hereinafter provided for:
(i) Comm.rclel Gene..1 Ueblllty Insurance, Commercial generelllabiIity insurance against claims
for "",perty damage and bodily Injury or death, such Insurance to afford "",teetlon to the limn of not less than $5,000,000
in respect to property damage, injury or death to any number of parsons arising out of anyone occurrence,
(Ii) Lendlord'. R..I 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)(ill)} In an amount not less than one hundred percent (100%) of full replacement cost (exclusive of the cost of
excavations, foundations and footings), from lime to time during the Term, providing protection against perils Included
within the standard state form of special fonn coverage Insurance polley, together with Insurance againsl sprinkler
damage, vandatlsm and malicious mischief, and such other risks as Landlord may from time to time determine and with
any such deductibles as Landlord may from time to time determine.
(ill) Rent Insurance. Rent insurance with raspect to the premises of the tenants In the Shopping
Center If available at a cost which Landlord In Its sole judgmant deems reasonable, against loss of rents in an "-'"
am""nt 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 monthly emount ..timated from time 10 time by Landlord to be payable by such tenants as
Percentage Rent and as Additional Rent pursuant to their leases.
(b) Any insurance provided for In Section 11,02(a) may be maintained by means of a policy or policies of
blanket insurance, covering additional items or locations or insureds provided that the requlremants of Section 11,02(a)
are otherwise satisfied.
(c) Tanantshall heve no rights In any policy or policies maintained by Landlord and shall not be entilled 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 otherwfse.
Section 11,03: INDEMNIFICATION BY TENANT,
Tenant ag.....that Landlord shall not be liable for any damage 0< liability of any kind or for any injury to or death of
persons or damage to property of Tenant 01' any other person durtng the Term, for any cause whatsoever (Including
wlth""tlimitation the acts or omissions of Landlord or Agent, bursting pipes and smoke) by.....on of the construction,
use, occupancy or anjoymant of the Premisas by Tenant or any person therein or holding under Tenant or happening upon
or about the Premises and Tenant for the purposes of this Section 11.03 shell be deemed to be In exclusive control of the
T-Moblle(WiIdPaglng}-CapItsICIty-Klosk-FINAL
June 8, 2005 \ Mlller/CB
19
Premiaes during the Term, Tenant d~\\8reby agree to and stwlt protect, defend:~emnlfy and save harmless Landlord
and Agent from all claims. actions. demands, 00111 and exp6noM and liability _er, IncIuclIng reaaonable attorneys
fees, on account of any such real or claimed event, damage or liabll1ty, and from all ilans, claims and demands arising
from (a) any occurrence in, or about the Premises, and/or (b) Tenant's activnles in the Common Areaa, and/or (c) alialng
out of the conatruction, use, OCCUpancy or enjoyment of the Premises, and/or (d) occasioned In whole or In part by any act
or omission of Tenant. Its agents, contractors, servants, employees or InV'ttees. regardless of 'Nhere occuning. Tenant
further agrees that the obligation to defend Landlord and Agent continues ~less of allegations of negligence or other
fault on the part of Landlord or Agent until such negligence or faun has been eatabllohed in a final edJudication, Tenant
shaii not, however, be l1able for damage or injury occasioned by the wiUfuI act of the l.andIonl which Is the cause of
damage or Injury unless Tenant Is required by this Lease to aSSume or insure .galnst such damage or Injury. Tensnfs
obligations under the aforesaid indemnity shall not be I1mned to the amount of commercial general l1abl1lty insurance
coverage whlch Tensnt 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 Landiord or Tenant, as the case mey be, !helr respective property, the Premiaes, ita contants or to the other
por1Ions of Landlord's Building, arising from any risk covered by special form coverage insurance, and to the extent of
recovery under valid and collectibie policies of such Insurance, provlded thet such waiver does not invalidate such policies
or prohibit recovery thereunder, The parties hereto each. on behalf of their respective Insurance companies Insuring the
property of either Landlord or Tansnt against any such loss, waive any right of subrogation that such insurers may hava
against Landlord or Tenant, as the caso may be.
Section 11,05: COMPLIANCE WITH INSURANCE AND GOVERNMENTAL REQUIREMENTS,
Subject to Landlord's obligations in Section 13,01 to maintain the slnJcture of the Premises, Tenant agrees at ita
own expense to comply wtth 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 rattng bureau or any slmnar
public or private body and any governmental authority having jurisdiction with respect to the use or occupancy of
Landlord's Building, including, but not limited to, Installation of lire extinguishara or _ _, suppression
systems ancllor IWe-safety systems, any changes, modifications or alterations In the detection and/or suppreaslon systems
or additional detectors ancllor sprinkler heads or the location of partitions, trade fixtures, or other contents of the Premiaes,
Landlord shall not matarla\ly change the dimensions of the Premises or materially affect access to the Premises from the
Landlord's Building unl... required to make any such chenges by reason of any federal, state or local environmental or
other law, rule, regulation, guideJlne, judgment or order.
Section 11,08: EFFECT ON LANDLORD'S INSURANCE,
Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything In, upon or about the Premises
which will contravene Landlord's policies Insuring against loss or damage by fire or other hazards, or which will prevent
Landlord from procuring such policies In companies acceptable to Landlord at regular rates or which will In any way cause
an increase in the insurance ratea for any portion of the ShoPlling Center, W Tenent violates any prohibition provided for In
the first sentence of this Section 11.06, Landlord may, without notica to Tenant, correct the same at Tenant's expanse,
Tenant shall pay to Landlord as Additional Rent forthwith upon demand the amount of any Increase In the premiums for
insurance resulting from any violation of the firstsentance of this Section t 1,06, even W Landlord shall have consented to
the doing of or the keeping of anything on the Preml_ which constituted such a violation (but payment of such Additional
Rent shall not entlbe Tenant to vloleta the provisions of the first sentence of this 5ectIon 1 I ,06),
Section 11,07: LIMIT OF LANDLORD'S RESPONSIBILITY,
Landiord shall not be responsible or lleble to Tenant for any 10.. or damage thet may be occesior1ed by or through
the acts or omissions of parsons occupying space edjolnlng the Premises or any other part of the Shopping Center or
Landlord's Building, or for any 1088 or damage resulting to the Tenant or ita property from bursting, stoppage or leaking of
water, gas, sewer or staam pipes or other utility lines or for any dam_ or loss of property within the PremJ_ from any
cause whalloever, Such limitation of responsibility and liability shall not, however, apply to Landlord's willful acts, except
to the extent such willful acts are waived or released by Tenant pursuant to Sections 11,03 or 11,04,
ARTICLE 12: DAMAGE OR DESTRUCTION
SectIon 12,01: LANDLORD'S DUTY TO RECONSTRUCT,
In the event the Landlord's Building is damaged or dea~ by any of the riska referred to in Section 11,02(a)(i1)
against which Landlord Is obligated to procure Insurance, Landlord shall (subject to being able to obtaln all necessary
permits and approvals therefor, Includlng wtthout limitation permita and approvals required from any agency or body
administering environmental laws, rules or regulations), within one hundred twenty (120) days after such dam_ or
destruction (unless Landlord terminates this Lease pursuant to Section 12,03), commence to: (e) repair or reconstruct
Landlord's Building and (h) repair or reconstruct the slnJctural floor sleb of the PremisM, Landlord shaH prosecute all such
work diligantiy to completion, In no event shall Landlord be liable for In\ernJptlon to Tensnrs bu&1neu or for damage to or
repair or reconslnJctiOn of any of those things which Tenant Is required to insure pursuant to Section 11,01(a)(i1i), nor shall
Landlord be required to expend more for any repair or reconatnJctlon pursuant to this SectIon than the net amount of
insurance proceeds actually received by Landlord and allocable to the Premises on 8 square foot basis.
Section 12,02: TENANTS DUTY TO RECONSTRUCT,
If the kiosk is damaged or destroyed by fire or other casuatty, Tenant shall (subject to bemg able to obtain all
necessary parmlts and approvals therefor, Including without limitation permlll and approvals required from any agency or
body administering environmental laws, rules and regulations), within ~n (15) days after Landlord has substantially
T-Moblle(WIIdPaglng}-CapitaICIty-Klosk-FINAL
June 8, 2005 \ MlllerlCe
20
(:' "'"
repai~ or reconstructed Landlord's .....lIdlng and the floor at the Premises (~s Landlord tennlnates this Laase
, pursuant to SeoIlon 12,03), replece the kiosk with enother one approved In advance by Landlord_
Section 12,03: LANDLORD'S RIGHT TO TERMINATE,
(a) Landlord shall have the option to terminate this Lease upon giving written notice to Tenant of the exercise
thereof within one hundred \Wanty (120) daya alIer the Landlord'. Building Is damaged or daatro~ W;
(I) the Premises are rende~ wholly unfit for carrying on the Tenant's buslneas after damage to or
destruction thereof from any cause; or
(II) Landlord's Building Is damaged or destro~ as a result at any flood, earthquake, act at war,
nuclear reaction, nuclear radlatlon or radioactive contamination, or from any other risk not covered by insurance whtch
Landlord Is obligated to procure pursuant to 5eeIIon 11,02(a)(II); or
(IIi) any danlage to or daa\ruclion at Landlord'sllullding occurs within the last three (3) Years of the
Term or in any Partial Year at the end of the Term; or
(Iv) fifty percent (50%) or more at the GLA In the Landlord's Building immediately p<ior to the damage
or destruction is rendered unfit for carrying on business therein; or
(v) Landlord's Building Is so subslantially damaged that It Is reasonably necessary, In Landlord's
judgment. to demolish the same for the purpose of reconstruction; or
(vi) Landlord elects not to penn It kiosks In the Enclosed Mall,
(b) Unless so terminated, this Lease shall continue in full force and effect, and Landlord and Tenant shall
perfonn their respective obllgal1ons under SectIon 12,01 and 12,02, Upon any terrnlnal10n at this L..... under any at the
provisions at thls SectIon 12,03, the Rent shell be adjusted as at the date at such termination and the parties shall be
released from all liability hereunder upon the surrender at possession at the Premls.. to the Landlord, except for Items
which heve been theretofore accrued and are \hen unpaid,
Section 12,04: ABATEMENT OF RENT,
If this Lease is not terminated by Landlord pursuant to Section 12.03 after damage or destruction of the LandkJrd's
Building, and W the Premises are rendered wholly or partially unfit for ~ng on Tenanrs business by such damage or
destruction, then the Minimum Rent and the Additional Rent payable by Tenant under this Laaoe shall be abeted, and the
applicable Break Point and Partial Year Break Point (as the case may be) shall be reduced In direct proportion to the
_taga at the GLA In the Premls.. which Is rendered unfit for that period from the date the Premises are so rendered
unfrt until the earlier of sixty (eo) days alIer Landlord re-dellvers possession at the Premises 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 at the Enclosed Mall, structural columns and cement structural floor or floors which
comprise the Premises In good repair, Notwithstanding the foregoing provisions at IhI& SeoIion 13,01, Landlord shall not in
any way be liable to Tenant unless Tenant .hell have given Landlord _ notice at the necessity for sucl1 repairs and
Landlord fails to commsl"IOe making such repairs within a reasonable period thereafter. and provided that any damage
necessitating such r_1rs shall not hava been caused by the ami..lon, negligence or willful act at Tenant, Its
concessionaires, Invitees, officers, employees, llcens_ or contractors or by the faNure at Tenant to perform any at Its
obligations under this Lease (In etther at whlch e_ts Tenant.ha11 be responsible therefor) or have been caused to any at
the Items Tenant Is requlred to insure pursuant to ArtIcle 11. Landlord shaH be under no liability tor repair, maintenance.
alteration, Improvement, reconstruction, renewal or any other action with respect to the Premises or eny part thereof, or
any plumbing, electrical, heating, ventilating, air condnlonlng, or other mechanlcel Installal10n 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 all other work to or for the klosk and every part thereof to render
the same In good and tenantable condition, Tenant's obligation under this 5eeIIon 13,02 shall Include, but not be limited
to, repairing, replacing and otherwise maintaining the entire kiosk and Items as are required by any governmental agency
having jurisdiction thereof (whether the same Is ordinary or extraordlnaty, foreseen or unforeseen), utility meters, pipes
and conduits Inside the Premls.. which are Installed by or demleed to Tenant or which exclusively serve the Pramlses, all
fIXtUres, all equipment In the Premises, all at Tensnrs signs, securI\y grilles or similar enclosures, locks and closing
devices, Tenant shall pennn no waste, damage or Injury to the Premises and Tenant shalllnlllale and C8ITY out a program
of regular repair and other maintenance at the Premises, Including the painting or refinishing at an areas at the interior and
the storefront as approved by Landlord, so as to Impede, to the eldent possible, deterioration by ordinary wear and tear
and to keep the same In attractive condition, Tenant will not overload the electricel wlrlng or other systems serving the
Premises or within the Premises, and will install at Its expense, but only after obtaining Landlord's wrI1Ien approval, any
additional ai_I wirlng or other nems which may be requl~ In connection with Tenanrs apparabJs,
Section 13,03: RIGHT TO ACCESS TO THE PREMISES,
Landlord and Its authorized representatives may enter the Preml8es at any and all times during usual business
hours and at all other tim.. In the case at an emergency, for the purpose at Inspecting the same or to make any additions,
alterations, ~Irs or replacements to the Premises or to any utility sys1ems or equipment locateclln, above or under the
Premises which may be necesaary or desirable to comply with governmental requirements andIor the recommendations of
any Insurance reting bureau or eny similar public or private body or to prevent waste or detertoratlon In connection with the
operation at the Premises, Nothing herein contained shell Imply any duty on the part at Landlord to do any such work
which under any other proviSion at this Lease Tenant may be requlrecl to do nor shall Landlord'. performance at such work
T -Moblle(WlldPsglng)-CspltaICIty-Kjosk-FINAl.
June 8. 2005 \ MIlJer/CB 21
G'i rJ',
constitute a waiver of Tenanrs detail"'" falling to do the same, In the event Lan6.\l;(j performs or caUHS any wort< to be
performed which, by virtue of the provisions of this Lease, Is Tenant's responsibility. Tenant shell pay the cost thereof to
Landlord, as Additional Rent, upon demand, No exlll'CiSe by Landlord of any rights provided In this _n shall entitle
Tenant to any damage for any inconvenienca, disturbance, loss of business or oIher damage to Tenant occasioned
thereby nor to any abatement of Rent.
section 13,04: CONFLICTS,
To the extant, ~ any, that there may be any conflict between this ArIicIe 13 and Article 12. or between this Artide
13 and Article 22, Article 12, ~ applicable, or ArIicIe 22, Wapplicable, shall prevail,
ARTICl-E 14: FIXTURES AND PERSONAL PROPERTY
SectIon 14,01: TENANTS PROPERTY; ReMOVAL,
The kiosk to be constructed by Tenant and all any trade IIxtures, signs, counters, shelving, Inventory, showcases,
mirrors, and other personal property of Tenant not permanently afIIxed \0 the Premises shall remain the property of
Tenant. Tenant shall have the right, provided Tenant II not In defauH under thiS Lease. at any time and from time to time
during the Term, to remove any and all of Its personal property which n may have stored or Insllllled In the PremlHS, W
Tenant is in delault under this Lease, Landlord shall have the right to teke exclusive pas....1on of such property and to
use such property wllhout rent or charge, and Landlord. wh_ or not n takes possession of such property, shall have the
benefit of any lien thereon permllled under the laws of the state in which Landlord's Building is located and, W such
possession is taken or such lien Is asserted by Landlord in any man_, Including but not limited to operation of law,
Tenant shall not remove or permn the removal of said kiosk. trade fixtures, signs or oIher persona\ property until such
possession is relinquished or the lien is removed, as the case may be. Nothing in this Article shall be deemed or
construed to permit or aJlow Tenant to remove any of such personal property prior to the end of the Term without the
Immediate replacement thereof with similar personal property of comporable or better quality, or _se render the
Premises unsuitabfe for the continued conduct of Tenanfs permitted use thereof. Tenant at Its expense shafl immediatety
repair and otherwise make good any damage occasioned \0 the Premises or Shopping Center by reason of installation or
removal of tha kiosk or any such peraonal property unless such damage Is caused by Landlord pursuant to SectIon 13,03
and ~ Tenant faHs to remove such Items from the Premises prior to such expiration or termination, or K this Leaae Is
terminated by Landlord and Tenant falls to remove such Items from the Premises prior to the effective date of such
terminallon, then in any such event kiosk and all such personal property .hail thereupon become the property of Landlord.
without furthe< act by either P8llY hereto, unless Landlord elects to require all or a portion of such Items to be removed by
Tenant in which case Tenant shall prompUy remove the items designated by Landlord and restore the Premises to Its prior
condition at Tenanrs expense.
Section 14,02: IMPROVEMENTS TO PREMISES,
Subject to the provisions of Section 14,01, at the expilatlon or earlier termination of this Leaae, Tenant shall
remove the kiosk and the area upon which the kiosk was constructed shall be left in the same condnlon In which such area
was when the construotJon of the Idosk commenced, ordinary wear and tear excepted. Tenanfe obfigation to observe and
perform the covenants set forth In this Section 14,02 shall survive the expiration or _ termination of this Lease,
Should Tenant fail to remove the kiosk and Its trade fixtures and/or to so restore the Premises, Lendlord may do so,
collecting upon demand at Landlord's option, the cost end expense thereof as Additional Rent. or Landlord mey permft
future occupants \0 utilize the kiosk without accounting to Tenant.
ARTICLE 15: ASSIGNMENT AND SUBLETTING
SectJon 15,01: PROHIBITED,
Tenant shall not permtt anyone other than Tenant to occupy the Premises or any part thereof and shall not
transfer, assign, sublet, ent". Into license or concession or other occupancy or use agreements or mortgage or
hypothecate this Leaae or the Tenant's In_t in and to tha Lease or the Premises or any part _ ("-n collectively
referred to as "Tranafer") without first obtaining In each and every Inslance the prior written consent of Landlord which
Landlord may wtthhold In lis sole diacretion, Any attempted Transfer without such prior written consent shall be an Event
of Default. shall not be binding upon Landlord, shall confer no rights upon any third person and shall not relieve Tenant of
its obligations under this Lease, Any transfer by merger, consolidation, liquidation or otherwll8 by operation of law,
including, but not limited to, an assignment for the benefit of creditors, as weN as any transfer. assignment, or
hypothecation of any stock or general partnership Interest In Tenant so as to result In a change of the oontroi thereof, shall
be Included In the term "Tranafer" for the purposes of this Lease and shaH be a violation of this SectIon 15,01 and an
Event of Default, except as otherwise speclflcally set forth In this Article 15, Consent by Landlord to eny Transfer shall not
constitute a waiver of the necessity for such consent to any subsequent Transfer, In the event of a permllled Trensfer,
Tenant agrees neverthaless to and shall remain fuMy liable for the full performance of each and every obligation under this
Lease to be performed by Tenant and the assignee shalt be deemed \0 have 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
"Requoet Notice") requesUng Landlord's consent to the proposed Transfer at leaatthlrly (30) deys prior \0 the date on
which, with Landlord's prior written consent, the Transfer would be effective, The Request Notice shall contain, without
limitation. at least: (i) the full identification of tha proposed transferee; (II) the most recent flnenclal statements and other
evidence of the transferee's financial responslblll\y and buslnes. performance; '(lii) the transferee's proposed specific use
and business proposed to be conducted at the Premises; (iv) the scope of any propoled aIteralIons to the storefront of and
wtthin the Premises; and (v) the monetary and non-monetary terms and conditions of the proposed Transfer, Landlord
shall have the right and option (the "Tak_ Option"), exerclseble by Landlord giving Tenant written notice within thirty
(30) days after Landlord's receipt of the Request NoIlce of reacquiring the Premises or portion thereof which Is the subject
of the proposed Transfer and terminating this Lease with respect thereto, W Landlord elects not \0 exercise the Take-back
Option and elects to give Landlord's wrillen consent to the proposed Transfer, then Tenant shall pay to Landlord forthwith
T -Mobi1e(WlldPaglng}-CapltaICity-Klosk-FINAL
June 8, 2005 \ MllledCB 22
c\ r..
upon T enanfs receipt, as AddUlonal ~t, all sums and other economic consldenliiUn (wI1ether by lump sum peyment or
otIte<wlse) received by Tenant In any month es a resull of the Transfer whether denominated rentals or otherwise which
exceed, In the __te, the total sums which Tenant Is obllQ8ted to pey and does pey Landlo<d under this Lease In the
same month (prorated to reflect obligations allocable to that portion of the Premises which Is \l\e SIlb\eCI of \l\e Tran$\er),
all without affecting or reducing any other obligation of T enanl hereunder provided. lhet In the case of an assignment of
this Lease such Additional Rent payment by Tenant to Landlord shall equal the entire consideration for such assignment
If Landlord gives Landlord's written consent to the proposed Transfer and the Transfer Is nol made (Including without
limitation, delivery of possession by Tenant to and occupancy by the proposed transf_ epproved by Landlord) within
thirty (30) days after the dale Landlord g1v... Its written consent to the proposed Transfer, then Landlord's wrIIten consent
and the Transfer shall be automatically null, void and of no force or effect wha_, The Take-bac:k Option shell nol be
exheusted by any one exen:i8e thereof by Landlo<d but shall be exarcisable from time to time and as often as there is a
proposed Transfer, The Taka-back Option may be exercised by any esslgnee of Landlord's right. tIUe and Inlereslln this
Lease or any other person which at the time of the Request Notica Is Landlord under this Lease, ff after receipt of the
Requesl Notice Landlord requests additional or further Information which Landlo<d reasonably requires to consider the
proposed Transfer, Tenant shell deliver such Information to Landlord upon Landlord's request therefor and the period for
Landlord to exercise the Takeback Option shall be extended by the number of days -., Landlord's request for and
Landlord's receipt of such eddltional or further Inform.tion, Tenant shall pay to Landlord the sum of Five Hundred
($500,00) Dollars to defray Landlord's admlnlstrallve costs, overhead and counsel _ In connection with the
consideration, review and documant preparation of any proposed assignment or subletUng, such sum to be peld at the
time Tenant delivers the asstgnment.and assumptton agreement executed by the assignee and assignor.
ARTICLE 16: DEFAULTS BY TENANT
SectIon 18,01: EVENTS OF DEFAULT,
This Lease Is made upon the condition thet Tenant shall punctually and faithfully perform and fulfill all of the
covenants, conditions and ag_ments by Ii to be performed es In this Lease sel forth, In addition to evenls elsewhere
staled In this Lease as Events of Defaul~ the following shall be deemed 10 be an Event of DefauU (each of which is
sometimes referred to as an 'Ev_ of Default" In this Lease):
(a) the failure by the Tenant to pey Minimum Rent and/or Perce"'- Renl and/or Additional Rent or any
installment or year...nd edjustment thereof Ii such failure continues for tan (10) days after wriIIen nolica lhereof by
Landlord to Tenant: or
(b) the failure of Tenant 10 submU Its Design Drawings on or before the Design DrawIngs SubmisSion Date In
accordance with Section 2,03(c) or commence Tenant's Work on or before Ihe Construction Commencement Data In
accordance with the terms and conditions of Section 2,03(c); or
(c) the Iallure of Tenant to open Its business to the public In the Premises on or prior to the date on which
Tenant Is required to open Its business to the public pursuent to the tenns end conditions of Section 2.04. or the failure to
open the Premises, or 10 keep lhe Premises open, on \he days and hours required by this Lease, or if Tenanl vacates or
abandons the Premises; or
(d) the failure of Tenant to observe or perform any of the covenanla, terms or conditions set forth In Article 15
(relating to assignment and sublatUng); or
(e) the sale or removal of a substantial portion of Tenant's property located in the Premises in a manner
which is Qutslde the ordinary course of Tenant'a business; or
(f)
hereof; or
the failure to maintain inventory levels and employee staff in accordance with the provisions of Article 7
(g) repetition or conijnuation of any failure 10 timely pey any Minimum Rant 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 continue or ba repealed for two (2) consecutive months, or for a total of three (3) months In any
period of t\Yelve consecutive months; or
(h) repetition of any failure 10 observe or perfonn any of the Lease covenants, terms or conditions more then
three (3) limes, In the aggregate, In any period of twelve (12) consecutive months; or
(I) any other failure of Tenant to observe or perform any of the other covenants, tenns or conditions sat forth
in this Laase where said failure continues for a period of twenty (20) deys after wrIIten nollce thereof from Landlord to
Tenant (unless such failure cannot reasonebly ba cured Within twenty (20) days and Tenant shall have commanced to cure
said failure within twenty (20) days and continues diligently to pursue the curing of the same unlll completed); or
0> the commencement of levy, execution, or attachment proceedings against Tenant or Guarantor (hereaflef
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 \he estate created In Tenant hereby; the application for or \he appolnlment of a
liquidator. receiver, custodian, sequestrator, conservator. trustee, or other similar judicial officer for Tenant or Guarantor or
for all or any substantial pert of the property of Tenant or Gueranlor (end such appolntment continues for a period of thirty
(30) days): the Insolvency of Tenant or Guarantor of Tenant In bankruptcy or equity sense; eny assignmenl by Tenant or
Guarantor for the benefit of creditors; or
(k) \he commencement of a casa by or against Tenanl or Guarantor, under any insolvency, bankruptcy,
creditor adjustment or debtor rehabilitation laws, state or federal; or the detannlnation by the Tenant or Guarantor to
request rel1ef under any Insolvency proceeding, including any Insolvency, bankruptcy, creditor adjustmenl or debtor
rehablllt8tlon laws, state or federal, and in no event shall the Premises or Tenant's Interest In this Lease becxtme an asset
In any such proceedings; or
T-MoblIe(WlldPsglng)-CspliaJClty-K_-FINAl.
June 8, 2005 \ M1ller/CB 23
n
I
, (I) notwlth.tandlng the Tenant. obligation to pay Minimum Rent andlor Percentage Rent andlor Additional
Rent a. of the first day of each month during the Term, In the lIVent that an Insolvency, bankruptcy or .'mpar proceeding ,.
flied by or agaln.t tha Tenant or any Guanmtor, the Tenant .hall ba obligated to pay all .uch Minimum Rent andlor
Porcentago Rent endlor Additional Rent on a ratable basi. from the date of the commencement of any .uch proceeding
through the end of the month in which such proceeding is commenced.
o
5ecllon 16,02: lANDLORD'S REMEDIES.
(a) Landlord may treat any Event of Default as a mater~ breach of this Lease. Landlord's failure to insist
upon .trict performance of any covenant, term or condition of thl. Lease or to exorcise any right or ramedy ~ has herein
.hall not ba doomed a waiver or relinquishment for tha future of such performance, right or remedy, In add~ion to any and
all other rights or remedloo of Landlord in this L.... or at law or In equity provided, Landlord .hell have tha following tights
and ramedle. W there .hall occur any Event of Default none of which .haII be construed as an _n to forego any of tha
other remedies then or In the future:
(i) accelerate the whole balance of Ren~ and all other .ums payable hereunder by Tenant, for the
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 pos.es.ion thereof and to remove
all persons and contents therefrom, and Tenant .hall have no further claim or right hereunder: and/or
(III) to bring .u~ for the coIlectlon of Rent and for damages without antering into pos.ession of the
Premises or terminating this Lease; and/or
(iv) to terminate Tenanr. right of possas.ion of the Premises by .ummary proceedings 0( otherwise,
without terminating this Lease, In the event of any....ntry and termination of possession, Landlord .heIl have the right
bot not the obligation to remove .ny personal property from tha Premises and either treat .uch property e. abandoned, or
at L.ndlord'. option, place the .ame in .~ at a public warehouse .t the sole cost expense and risk of the Tenant;
and/or
(v) to enter the Premise. and wIthoUt further damand or notice proceed to di.tres. and sale of the
good., chattels, personal property and other contents there found and to levy the Rent, and Tenant .hall pay all costs and
officers' commissions, Including watchmen's wages and sums chargeable by Landlord, and further Including charges
which Landlord may Impose by .tatule a. commis.lons to the constable or other person making the levy, and in .uch
cases all co.ts. officers' commi..ion. and other charge. .hell 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) Cont.alon of Judam.nt. Rent. Tenant covenants and agrees that if there Is an Event of Default, then
Landlord may, without IImltallon, cau.e judgments for money to be entered agalnot Tenant and, for tho.e purpoaes,
Tenant hereby grants the foUowIng warrant of attorney: (I) Tenant hereby Irrevocably authorize. and empowers any
prothonotary, clerk of court, attorney of any court of record andlor Landlord (a. well as someone dng for Landlord) in any
and ali action. commenced again.t Tenant for recovery of the Rent andlor other amounts to be paid to Landtord by Tenant
to appear for Tenant, and sssess damages and confess or othelwtse enter judgment against Tenant, for an or any part of
the Rent and/or other amounts to be paid to Landlord by Tenant Including, wIthoUt limitation, sum. under Sectlon f6,02(a),
together with Interest, costs and an attorneys' comml..lon of five percent (5%) of the full amount of such Ren~ amounts
and .um., and thereupon writ. of execution a. wall as attachment may forthwith I..ue and be servad, without any prior
notice, wr~ or proceeding whatsoever except as may otherwise be required by applicable law; (II) the warrant of attorney
herein granted shall not be exhausted by one or more exercises thereof but succe88lve actions may be commenced and
successive judgments may be eonfessed 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 0( expltation of tha Term andlor during or after any oxtenolon. of the Term or renewal. of thi. Lea.e;
and (III) the provl.1ons of SocIlon 16,02(d) are Incorporated herein by thl. referance therelo,
(c) Con"-Ion of Judament . Pft&a...loR. Tenant covenants and agrees that If there Is an Event of
Defau~ or this Lease i. terminated 0( the Term or any extension. or renewal. thereof i. terminated 0( the Term or any
exten.ion. or renewal. thereof I. terminated 0( expire., then, and in addition to the rights and remedies set forth In SecIlon
16,02(b), Landlord may, without IIm~allon, cau.e judgments in ejectment lor po.....ion of the Premises to be entered
again.t Tenant and, for those purpose., 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 andIor Landlord (as
wall a. someone acting for Landlord) in any and all action. commenced for recovery of po.....lon of the Premi.es to
appear for Tenant and confess or otherwise enter ludgment 10 ejectment for poseession of the Premises against Tenant
and all person. claiming directly or indirectly by, through or under Tenant, and thereupon writ of pos....,on may forthwith
issue and be served, wtthout any prior noUce, writ or proceeding whatsoever except as may otherwise be required by
applicable law; (Ii) W, for any rea.on after the foregoing actiOn or actiOn. .hell have been commenced, ~ .hall be
determined that possession of the Premises should remain in or be restored to Tenant, Landkm:t shall have the right to
commence one or more further actions as hereinbefore set forth to recover possession of the Premises lndudlng, without
limitation, appearing for Tenant and confessing or otherwise entering judgment for possession of the Premises as
hereinbefore set forth; and (iii) the proviSions of SactiOn 16.02(d) are incorporated herein by this reference thereto,
(d) In any action or proceeding described in Section 16.02(b) andlor Secllon 16,02(c), or In connection
therewith, W a copy of this Lea.e Is therein verified by Landlord or .omoon. acting lor Landlord to be a true and correct
copy of thi. Lea.e (and .uch copy .hall be conclu.lvely presumed to be true and correct by virtue of.uch verlflcallon),
th.n It .hall not be necessary to file the orlgtnal of this Lease, any .tatute, NIe of court of law, custom or practice to the
contrary notwlth.tanding, Tenant hereby reI...es to Landlord, an~ne acting for LandlO(d and all attomey. who may
appear for Tenant all errors in procedure regarding tha entry of Judgment or judgments by conles.ion or otherwise by
virtue of the warrants of allomey contained in thl. Lease, and all liability therefor, The right to enter judgment or judgments
by confe..ion or otherwl.e by virtue of the warrants of attorney contained in this L_e and to enforce all of the other
provision. of this Lease may be exorcised by any aulgnee of Landlord's right, t1lle and lnt.....t in this Lea.e In .uch
assignee's own name, any statute, rule of court or law, custom or practice to the contrary notwithstanding.
(e) Tenant expressly waives:
T -MoblIe(WlldPaglngrcapltalCity-Kiosl<-FINAl.
June 8, 2005 \ MUlerlCB
24
{<-:-, (',
(i) Th. benefit of' all 1aw8, now or hereinafter In force, ex.,'rpting any goods In the Preml8e8 or
e1sewher. from distraint, I.vy or sal.ln any lagel proceedings taken by Landlord to enforce any rights under this L..se,
(II) The benefit of all laws now m.d. or which may hereafter be mad. regarding any IImltatlon as to
th. goods upon which, or the tlm. within which, distress Is to be made efter the removal of goods, and T.nent further
relieVes Landlord of the obligation of proving or idanIlfylng such good.; ~ being the purpose and Intent of this provision that
all good. of Tenant whether upon the Premises or not, .hall be llabl. to distre.. for rent,
(III) The right to I..u. a writ of replevin for the recovery of any goods s.ized under a distress for Rent
or levy upon an execution for Rent, damages or otherwise.
(Iv) The right to delay .xecutlon on any real ..tata that may be I.vled upon to coIlecl any amount
which may becom. due under the term. and conditions of this L..se and any right to have the .ame appraised, Th.
Prothonotary or Clerk of Court I. hereby authorized and .mpowered by Tenant et Landlord'. in.tance to .nter a writ of
ex.ecutkm or othef procesa upon Tenant's voluntary waiver and furthet' agrees that said real eatate may be sold on a writ of
execution or other process,
(v) All rights under Act of April 5, 1957, No 20 and all suppl.m.nts and am.ndments _, hereby
authorizing the sal. of any good. dl.trained for rent at any time efter sev.n (7) days from .ald distraint without any
appraisement and condemnation thereof.
(vi) Th. right to three (3) month. andlor fifteen (15) or thirty (30) days' notice required und.r certain
circumstances, or any other nob required or otherwise provided by statute 8S a c:ondition to the commencement of
summary prooeedlngs or an action for poo_slon or to the termination of this L...... or any retaking of po....slon, T.nant
hereby agreeing that the respective notice periods provided for In this L...... .hall be .ufficlent In any .uch cas.,
Section 16,03: DAMAGES,
(a) II Landlord electa to I.rminal. T.nanr. right to possession und.r Ihls Less., but not to t.rmlnat. this
Lease, landlord may relet the Premises (or any part thereof) for the account of Tenant at such rentals and upon such
t.rms and condlllon. as Landlord .hell deem approprial<l (which may be Ie.. than or .xceed the balance of the Term),
and to the exlent Landlord recelv.. the R.nt therefor, Landlord .hall apply the sam. first to the paym.nt of .uch .xpenses
as Landlord may have Incurred In recovering poo....ion of the Premise. (Including, without limitation, '-I .xpenses and
attorneys' fees) and for putting the Premises into good order and condition and repairing or remodeling or aftering the
same for ralerting, and any other expenses, commissions and charges paid, assumed or Incurred by or on behatf of
Landlord in connectIOn with the reIettlng of the Promises (col\eCllvely lhe "com of Reltlttlng"), and than to the fulfllim.nt
of the cov.nants of T.nant under thl. Leas., T.nant shall pey to Landlord the Rent up to the time of .uch 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 IeS8 the net Bvail. of such retettlng, if any, during the
.am. period, and the .ame shall be due and payable by T .nant to Landlord on the dates .uch R.nt Is due under thl.
L.as., Any rel.ltIng by Landlord .hall not be con.trued a. an _n on the pert of the Landlord to terminet. this Less.
unl.ss a nollc. of such Intentlon I. given by Landlord to Tenant, Notwithstanding any _Wng without tarmination of thl.
L...e, Landlord may at any time the<eafter elect to terminate this L...., In .nyevent, Landlord .haIl not be liable for, nor
.hall T .nant'. obligation. hereunder be diminished by reason of any failure by Landlord to reiet the Premises or any failur.
by Landlord to collect any sum. due upon .uch rel.ttlng, T.nent .hall not be entltIed to any R.nt received by Landlord in
.xce.s of R.nt provided for In thl. L..se, Landlord may fil. sull to recover any sum. falling due under the term. 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 Judgm.nlln favor of Landlord,
(b) If Landlord .Iects to t.rminal<l this Laese instead of terminating only Tenant's right to pes_slon,
Landlord shall have the right to Immediately recover against Tenant as damages for loss of the bargain, and not as a
penalty, the .xce.. (W any), a. det.rmlned by Landlord, of (i) the present v.lu. of the projected R.nt payabl. by Tenant
under this lease (as determined by Landlord on the basis of the amounts of Additional Rent which would have been
payabl. pursuant to this L.ase for the full calendar year prior to the calendar yaar in which the default occurred, Incr..slng
annuelly on the first of each yaar after such calendar year et the rate of .ix percent (6%) per annum compounded) that
would have accrued for the balance of the Term pjus any other amount necessary to compensate Landlord for all
d.trim.nts proxJmately caused by Tenant'. failure to perform Its obligations under this Laase, Including reasonable
altom.y. fees and Inter..t on all.um. due Landlord at the Default Rate (her.after defined), I... (Ii) the then present fair
mar1<.t rental valus of the Premise. for the balance of the T.rm a. reasonably determined by Landlord, taklng Into account
among other things, the condition of the Premises, market conditions and the period of time the Premises may remain
vacant before Landlord I. abl. to rel.t the sem. to a .ultabl. replacem.nt tenant, and the CosI8 of Relettlng (as deftned
_v.) that Landlord may Incur In ordar to entar Into a replacement I.... ("Benefit of the Il8rgeIn DlIII1_"),
Notwithstanding anything to the contrary contained In this L...., W, subsequ.nt to the termination of tIli. L.... and the
recov.ry of damages from T.nant pursuant to tills .ubsectlon (b), Landlord _18 the Proml.... for an effective Rent
higher or lower than the Rent assumed for purpo... of celculatlng the Benefit of the Bargain Damage., tIl. _ of the
Bargain Damages shall not be recalculated and Landlord shall be entitled to retain all of the proceeds of such rejettlng.
(c) The "Default Rat." means the rate of Interest which is three percent (3%) over the announced prime rate
of PNC Bank, Philadelphia, Penn.~vanla or any successor thereto or other bank saIecled by Landlord,
section 10,04: LANDLORD'S SELF-HELP,
In addition to Landlord's right. to .eW-help set forth .Isewher. In this L...., W T.nant at any time falls to perform
any of tt. obligation. Undar thl. L.... in a manner rea.onably sallsfactory to Landlord, Landlord .haIl have the right, but
not the obligation, upon giving T.nant at lea.t three (3) days prior writt.n notice of Its election to do .0 (In the .vent of any
.m.rg.ncy no prior notice shall be required) to perform such obIlgatioM on behalf of and for the account of Tenant and to
take all such action to perform such obligations, In such .v.nt, Landlord'. costs and expenses Incurred therein .hall be
paid for by Tenant a. Additional Rent, forthwith, upon demand therefor, with interest thereon from the date Landlordiperforms such work at the Default Rate. The performance by Landlord of any such obligation 8hall not constitute a retea..
or waiver of Tenant therefrom.
T -MobiIe(WiltlPagIng)-CapltalClty-Klosk-FINAL
June 8, 2005 \ Mlller/C6
25
@
~Ion 18,05: LEGAL EXPENSES,
(a) In the .v.nt that Landlord should r.taln _nl" Ind/or lnetitute any lult agalnlt T.nant for violation of or
to .nforce any of the covenants or COndltlonl of Ihls Lease, or should T.nant instltut. any action against Landlord for
violation of any covenants or conditions of this L...., or lhould ellher party lnetitut. a sun agalnet the other for a
declaration 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 prevaulng party In any such suit shall be enutled to all Its costa, expenses and
reasonable fees to Its attorney(s) In connection therewith,
Q
(b) In th. .venl that a bankruptcy proceeding Is filed by or agalnet Tenant under any chapter of the
Bankruptcy Code, Of' Tenant makes an aSllgnment for the benefit of creclltora or commences or otherwise becomes the
subject of any insolv.ncy, recelverahlp or s1m1ler proceeding, Landlord shall be .ntltled to recover Its reasonable attorneys'
fees and costs incurred In or In connection wtth any such proceeding from Tenant or any trustee, custodian, receiver,
..signee or other repreaentalive acting on Its behalf, all of which fees and expenses shall cons_, in addition to any
other sums due and owing under this L.... (i) an obligation of Tenant her.under, and (Ii) a component of any cur. claim
ass.rtabl. by Landlord under 11 U,S,C, ~ 365(b) of othOfWis.,
ARTICLE 17: LIABILITY OF LANDLORD
Section 17,01: LANDLORD'S DEFAULT.
Exc.pt as olharwise provided in this L...., Landlord shall be in defaull under till. Lease II Landlord fali. to
perionn any of Its obligation. hereund.r and ..id f.Hure contlnu.. for . period of tIIlrty (30) d.ys _ wrltt.n notice
thereof from T.nant to Landlord (unl... .uch faHure cannot reason.bly be cured within thirty (30) days .nd Landlord .hall
have commenced 10 cure s.id failure within said \hirty (30) days .nd continu.. dDlganlly to pursu. the curing of the same),
II Landlord shall be In deI.ult under this L.... .nd, II, .. . consaqu.nce of .uch cfefaull, T.nant.haIl recover. money
judgment agaln.t Landlord, such judgm.nt shall be .etiBfIecI only out of the procaed. of sale received upon exacutlon of
such judgm.nt and levied thereon againet the right, title .nd InteAl.t of Landlord in th. Shopping Center as the same may
then be .ncumbered and Landlord sh.1I not be lI.bIe for any deficiency. In no event shall T.nant h.ve the right to Iavy
execution again.1 .ny property of Landlord other then L.ndlord'. right, titi. .nd intere.t in the Shopping Center ..
h.reinbefore expressly provided, No delaull by L.ndlord under \his Laa.e shall give T.nant the right to terminate this
lease.
Section 17,02: TRANSFER OF LANDLORD'S INTEREST,
In the .v.nt of th. sat. or other Ir.nef.r of Landlord'. right, till. .nd Intere.t in \h. Premi..s or the Shopping
Cenler (.xcept in the ca.. of . .alo-l..._ fin.nclng transaction In which Landlord Is the lessee), Landlord shall
tran.fer and essign to .uch purch...r or tran"""ae any portion of the Security Deposit which may \hen be hekt by
Landlord pursuant to Section 2,02 of this L..... and Landlord thereupon and without lurther act by aIthar party hereto .haIl
be released from all lleblllty .nd obligations herounder d.rtvecI from \his L.... ariBlng out of .ny act, occurrence or
omission relating to the Premises or this Leaae oocurrtng after the consummation of such sale or tranefer. Tenant shall
hav. no right to tanninate thl. L.... nor to abate R.nt nor to deduct from nor set-off nor coun_ against Rant
betaus. of any"" or transfar (Including wtthout limitation .ny sala-1easaback) by Landlord or Its gran_, .uccesB0<8 or
assigns, Nalther Landlord'. mortgagaa (or Its d..ignee) nor the purcha..r at e foreclosure"" shall be liabl. to Tenant
for the retum of Ten.nr. Securtty Deposit unle.. .nd unlD Landlord actu.11y dalivers the Securtty Depo.n to .uch
mortgagee or purchaser or their designee.
ARTICLE 18: SUBORDINATION AND ATTORNMENT
Section 18.01: SUBORDINATION OF lEASE,
Tenanlagrees thai, excepl as hereinafter provided, this Laa..I., .nd shall always be, subject and subordinate to
any laasa wherein Landlord i. the lea... .nd to the lien of any or .11 mortgagee or deacls of trust, regardleas of whether
such I...., mortgagas or daad. of trusl now exlsl or m.y hereafter be created with regard to all or .ny peri of the
Shopping Center, and to .ny .nd .11 advances to be made tharaund.r, and to the interest thereon, and all modlflcatlon.,
con.oIid.tions, renewals, r.p1.cem.nts .nd extensions tharaof, Such subordination shell be _ wIthoul the
execullon of .ny lurthar Instrum.nt. Ten.nt also .grees thai any l.lIBO(. mortgagee or trultea may aIect to hav. this
L.... prior to .ny I.... or IIan of Its mortgaga or daed of tru.t. and In the .vent of .uch .Iection .nd upon notlflcallon by
such leasor, mortgagee or tru.l.. to T.n.nllo thai effect, tills La... shall be deemed prior in lien to the sald lease,
mortgage or daed of trust, wh.ther thl. L.... I. d.ted prior to or suboaqu.nt to tho d.te of .aid I...., mOrtgaga or daed
of tru.t.
Section 18.02: TENANTS ATTORNMENT,
In the event of any foreclosure of, or the exercise of a power of sale under, any mortgage or deed of tnJat referred
to in Section 18.01 covering the Premises or in the event of the tannlnallon of .ny I.... r_ to In Section 18,01
wherein Landlord i.th.I....., T.nant. upon the purch..er or lessor's requ..t, .hall attorn 10 .nd recognize the purch...r
or Landlord'.I".or.. Landlord under this Leaae,
SectIon 18.03: INSTRUMENTS TO CARRY OUT INTENT,
T.n.nt agraesthat, upon th. requ.st of Landlord, or .ny such I....,r, mortgagee or trustee, T.nant shall executa
and dallv.r what.v", Instruments may be required for such purposes and to carry out the intent of \his ArtIcIa 18, .nd in
the event T.n.nt fails to do.o within liltaen (15) d.ys _ demand In writing, T.n.nt .hall be deamed to have committed
an Event of Default.
T _o(WlldPagIng~.p1"ICIl';-Klosk.FlNAL
June 8, 2005 \ MIIIerICB
26
() ~
Any document executed by Tiini.nl evldenclng.uc:h subordination .hall prOVide thet Landlord'. mortgagee or such
, pu'rchaser shell not be liable for any action or oml..1on of any prior landlord (Including Landlord) under the Lease, .ubject
to any off .ets, claim. or defenses which Tenant might hava against prior landlotd (Including Landlotd), b04Jnd by any Rent
which Tenant might have paid for more than the current month to any prior landlord (Including Landlord), b04Jnd by any
amendmenl or modillcalion 01 the Lease or any other agreement concerning the Lease made _t mortgagee'. wrlIIen
consent or responsible In any WfJy for any security deposit which was deUvered to Landlord but was not sub8equentiy
detivered to such mortgagee or purchaser,
ARTICLE 19: ESTOPPEL CERTIFICATES
_Ion 19.01: TENANTS AGREEMENT TO DELIVER,
From ijme 10 ijme wtthln'twenty (20) days after request In writing therefor from Landlotd, Tenant agrees to axacute
and deliver to Landlotd, or to .uch other eddr...... or addres_ .. Landlord may designate (end Landlord and any such
eddre.... may rely th8leOll), a .-.nenl In wrltlng In form end substance satlsfacto<y 10 Landlord (herein called
"Tananr. EatoppeI C_a"), certllytng a. to .uch matters a. may be reasonably requested by Landlord, Tenant
expres.ly agree. that Landlotd may a..lgn Its Interest In the Tenant'. E.toppel Cet1lfIcate to Its lender(.) at any time who
may act in material reliance thereon.
_Ion 111,02: FAILURE OF TENANT TO PROVIDE,
In the event that Tenant fall. to provide a Tenant'. Estoppel Cet1lfIcate wIIhln twenty (20) days after Landlord'.
written requa.t therefor, Tenant .hell be deemed to have committed an Event 01 Default,
ARTICLE 20: QUIET ENJOYMENT
_Ion 20,01: FAITHFUL PERFORMANCE,
Upon payment by the Tenant 01 the Rent herein provided for, and upon the observance and performance 01 all of
the agreements, covenants, \em1. and condition. on Tenanf. part to be oboerved end performed, Tenanl shall peaceably
and Quietly hold and enjoy the Premises for the Tarm without hindrance or Interruption by Landlord or any other person or
persons lawfully or equitably claiming by, through or under Landlord, .ubject, nevortheles., to the lerm. and condltiona 01
\hI. Lease, and mortgage., lease. and other matters to which this Lea.. i, ,ubject or .ubordlnate,
ARTICLE 21: SURRENDER AND HOLDING OVER
Section 21,01: DEUVERY AFTER TERM,
Tenant shall deliver up and surrender to Landlord possession of the Premises upon the expiration or eartier
larmlnation of the Term, broom clean, free 01 dabris, In good order, condition and ,tete 01 rapalr and In compliance with
Section 14,01 (excepting Landlord', obligation under thl. Lea.., damage by caoually and ordinary wear and tear), and
.hall deliver the keys to the management oIIIce of Landlord or 10 .uch other place .. may be designated from time to time
by notice from Landlord to Tenant. If not sooner terminated .. herein provided, \hI, Lease shall \em11na1e at ttMo end of the
Term as provided for In Al\lcle 3 without the neces,tly 01 notice from either Landlord or Tenant to tem1lnate the same,
_Ion 21,02: EFFECT OF HOLDING OVER; RENT,
)f Tenant or any party claiming under Tenant remains In possession of the Premises or any part thereof, after any
expiration or termination of this Lea.e, no lenancy or In_t In the Preml.., ,hell resuh therefrom but such holding over
,hall be an unlawful_ and all ouch parties ,hall be subject to Immedlete ou_ and removal, and (a) Tenant .hall
pay upon damand to Landlord for any period when Tenanl shall hold the Premises _ the Term ha' \em1lnated or
expired, as liquidated rent for such period, a sum equal to all PeroenIage Rent and Additional Rent provided for In this
Lea,e p1u. an amount computed at the rate of double tha Minimum Rent for ,uc:h period, and (b) Tenant .halllndemnlfy
and hold harmless Landlord from all loa., COSI, expense and liability whatlOB_ resulting from such holding over,
Including, without Ilmlllng the generality 01 the for~, any claim' mede by any succeeding lenant based on such
hotding over.
ARTICLE 22: CONDEMNATION
Sec:t1on 22,01: ALL OF PREMISES TAKEN,
If the whole or any part 01 the Premises ,hell be teken or condemned either permanently or temporarily for any
public or Qua.l-publlc u.. or purpose by any competent authority in appropriation proceedlnge or by any right of eminent
domain or by agreement or conveyance In lieu thereof (each being hetel_ refBlTed to .. "Condam_'), this Lease
.hell terminate .. of the day poo....ion ,hall be taken by ,uc:h authority, and Tenant ,hall pay Rent and perform all of Its
other obIlgations uncler thl' Leaae up to the! date wtth a proportionate refund by Landlord of any Rent a' ,hall have been
paid In advance for a period subeequent to the date of the taking of pooaession, Tenant shalt remove the klosl< at the lime
01 termination and .hall not participate In any condemnatJon _ which may be payable,
T-MobUo(W11dPaging)-CapltalCIty-Kloak-FINAL
June 8, 2005 \ MiIlerlCB
27
(;1 G
'ARTICLE 23: MISCELLANEOUS
_Ion 23.01: INTERPRETATION,
(a) The captions, table of contents and Index of dafinad terms appaarlng In this Lease are Inserted only as a
matter of convenience end 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 pamm or eorporatlon Is named as Landlor<l or Tenant In thla Lease and executes the
same as such, or beoOmas Landlord or Tenant. then and in such avent, the ~s "Landlord" or "Tananr wharaver used In
this Laasa are Intended to rater to all such persons or corporations, and the liabHIty of such parsons or corporations for
compliance with and performance of ell the terms, covenants and pro.lslons of thIS Lease shall be joint and se.eral.
(c) The neuter, feminine or masculine pronoun when used herein shall each include each of the other
genders and tha use of tha singular shalllnelude tha plural.
(d) The parties herato agree thai all the pro.lsions of this Lease ara to be construed 81 co.anants and
agreements as though the words Importing such covenants and agreements were used In each separate provision hereof.
Furthermore. each covenant, agreement, obligation and other provision contained In this L.... Is, and shall be deemed
and construed as a separate and Indepandent co.enant of the perty bound by, undertaking or make the same, and not
depandent on any other \ll'O"lS1on of \his Lease unless expressly so provided,
(e) Although the prO'llsions of this Lease were drawn by Landlord, this Lease shall not be construed for or
against Landlord or Tenant, but this Leese shall be Interpreted In accordance with tha general tenor of the language in an
effor! to reach the Intended resun,
_Ion 23.02: RELATIONSHIP OF PARTIES,
Nothing herein contelned shall be deemed or construed by tha parties hereto, or by any third party, as creating the
relationship of principal and agent or of partnership or of joint 1I8ntura between the partias hereto, n being understood and
agreed that neMer the method of computation of Percentage Rent, nor any other prol/lSlon contained herein, nor any acts
of tha parties herein, shall be deemed to create any relationship between the partlas hereto other than the relationship of
landlord and tenant nOf cause landlord to be responsible in any way for acts. debts Of obligations of T a08m.
_Ion 23,03: NOnCES,
Any notice, demand, request, approval, consent or other instrument which may be or Is required to be given under
this Lease shen be In wrIIIng, and, shall be deemed to ha.a been gwen (a) when mailed by UnlIed States registered or
certJfjed mall, return receipt requested, postage prepaid and recewed or refused by the eddre....., or (b) when sent by
courier guarantying overnight delwery, addrassad to Landlord or Tenant at the raspaC\1ve addresses set forth in the
Fundemental Lease _Ions and/or such other address or addresses as eithar party may designate by notice to tha
other in accordance with this SectIon and recelved or rafuaad by the addressee, Any notice by the Landlord may be given
on lis behaW by Agent or by an attorney lot Landlord or Agent, Any notice property sent to Tenant shall be deemed
effactive whether or not a copy is sent to the address daslgnated In tha Fundamental Lease Prol/lSions to recewe a copy of
such notice.
_Ion 23,04: SUCCESSORS,
This Lease and the covenants and conditions herein contained ahalllnure to the benefit of and be binding upon
(subject to ArtIcle 11) Landlord, Its successors and assigns, and shall be binding upon Tenant, its hetr&, successors and
assigns and shall inure to the benefit of Tenant and only such assigns of Tenant to whom the aasignment by Tenant has
been consented to by Landlord In wrIIIng, Nothing in \his SectIon 23,04 shall be deemed to require Landlord to gwe any
such consent. All of Tenanrs obligations during the Tenn pursuant to Saction 4,05, 4,06, 4,07, 5,01, 5,02, 7,03, 8.03,
11.03 and 23,17 shallsUNlve \he expiration or earlier tennination of \his Leese,
_Ion 23,05: BROKER'S COMMISSION,
Tenant warrants that, except for Agent, n has dealt with no broker in connection with this Lease, and ag...... to and
shall defend, indemnify and sa.e Landlord hannless from all clalms, actions, dam_, costs and expanses and liability
whatsoever, including reasonable attorneys' fees, that may srlM from any claim by or through Tenant fora commission,
finders or like fee In connection with thla Lease, Landlord shall pay the fee or commission due Agent In connection with
this Lease.
Section 23,06: UNAVOIDABLE DELAYS,
In the e.ent that either party hareto shail be delayed or hindered in or pre.ented from the performance of any act
required hereunder by reason of strikes, lockouts, Inability to procure labor or materials, faUure of power, restrictive
go.emmental laws or regulations, riots, Insu_n, _ (wI1eIher actual or t_nad), lac\< of access to the Shopping
Center due to evacuation; damage or governmental order, fire or other casualty or other reason of a slmUar or dissimilar
nature beyond the reasonable control of the party delayed In performing wort< or doing acts required under the terms of this
Lease, then performance of such act, but not Tenanrs obligation to pay Rent shall be excused for the period of \he delay
and the period for tha performance of any such act shall be extended for . parlod equwalent to the period of such delay,
During Tenant's Construction Period the \ll'O"lSlOns of \his SectIon 23,06 shall not operate to excuse Tenant from
completing construction of the Premises within Tenanrs Construction Period unless Tenant gives written notice of the
delaying avent to Landlord within ten (10) days of the occurrence of such _\ring event. SUch wriltan notice shallspacify
tha nature of the delaying event and the number of days of delay c1almed to resun therefrom, Tenanrs Construction
Period shall be extended for e period equi.alent to the period of actual deley, After the Rent Commencement Dale the
pro.lslOns of this Section 23,06 shall not excuse Tenant from the prompt paymant of Rent and all other sums due by
Tenant under this Lease and such delay shall not extend the Tenn. Deleys or failures to perform resulting from lack of
T-Mobile(WildPsgingj-Cspi\8ICIty-KIosk-FINAL
June a, 2005 \ MJUorfCB 28
o (')
f4nds or the unav.il.bHIty of . particular contractor or pet80nnel shall not be deemed del.ys ~nd the reasonabl. control
of a party,
Section 23.07: SEVERABILITY,
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 \he provIalon Invelld .nd \he other of which would render \he provlsion valid, then Ill. pt'Ovlaion shall
hev. the meaning which rend.... K valid. W any term or provision, or .ny portion Illereof, of Illls Leaae, or Ill. application
thereof to any pet80n or clrcumstances sheH, to any ext.nt, be Inv.Hd or unenforceabl., the remainder of this Leaae, or the
application of such t.rm or provIaion to the poroona or circumstances other Ill.n those .s to which It Is held Invalid or
unenforceabl., shall not be affected thereby, and .ach Ierm .nd provision of this L..... sh.11 be valid and be enforced to
Ih. fulleal .xI.nt permllled by law,
Sectlon 23_08: TIME OF ESSENCE,
Tim. is of the ..s.nce with r.spact to the perform.nce of Ill. respectiVe obligations of Landiol<l and T enent set
forth in this Lease.
Section 23,09: OTIlER TENANTS: RELOCATION OR TERMINATION,
L.ndlord reserves the absoluta 'Igh\ to effect such other tenancies In the Shopping Cenler .. Landlord shall
delermlne In the ex.rcI... allts sol. business judgmerrt, T.nant hereby acknowtedges that (i) Illls L.... contains no
re.trIctIve covenents or .xclu.lves In favor aI T.n.nt; (H) this Leaae shall not be _med or Interpreted to contain, by
implication 0' otherwise, .ny warranty, representation or .greement on the part aI Landlord th.t any departm.nt store or
regional or national chain store or .ny other merchant sh.11 open for busin... or occupy or continu. to occupy any
premises In or adjoining the Shopping Center during the T.rm or .ny part thereof or thai Tenant shall generate . certain
.mount of Gross SaI.. or Ill.t .ny relmbumlble .mount payebIe by Tenant shall be any spectfk: amount, and Tenant
hereby .xpressly waives all claims with respect thereto .nd acI<nowIedges that Tenant Is not ~ on any such warranty,
repres.ntatlon or .greement by Landlord .I\hel' .s . m.tIer allnducem.nt In .ntering Into this L.... or as condition aI this
Lease or as a covenant by Landlord.
Sectlon 23,10: APPLICABLE LAW,
The laws of the state In which Landlord'. BuHding I. located sh.H go_n the validity, perform.nce .nd
.nforcem.nt of this L...., W .Ith.r party Institutes legal suK or .ction for .nforcement 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.
(.) Th. waiv.r by Landlord of any term, covenant. agreement or condKion herein contained .h.H not be
deemed to be a waiver aI.ny subsequant bteach aI the sam. or .ny other terms, cov.nant. agreem.nt or condition herein
contained, Th. .ubsequent .cceptance of Rent hereunder by Landlord shall not be deemed to be . waiver of any
preceding breach by T.n.nt aI any Ierm, cov.nant, agreemerrt or condition of Illis L...., other than the f.Uure of T.nant
to pay the particul.r R.nt so accepted, regardtess of Landlord's knowtedge of such preceding breach at the time of
acceptance of such Rant. No covan.nt, lerm, agreemerrt or condition of Illis L.... .haI1 be deemed to h.ve been waived
by Landlord. unless such waiver be in writing and executed by Landlord.
(b) No waiv.' of .ny coven.nt, term, agreemant or condKIon of this L.... or legal right or r.medy shall be
implied by the f.llur. of Landlord to declare. forfeiture, or for .ny other reason, No walv.r by Landlord In re.pect to one
or more tenants or occupants of Landlord's Building or any other part of the Shopping Center shall constitute a wafver in
favor of .ny oth., ten.nt. L.ndlord's consent to, or approval of, any act by T.nant requiring Landlord'. 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, requk'ement or other provision
of this L.... on .ny occasion unless mad. In writing and .xecuted by. general partner (or .xecutive officer) of L.ndlord,
Section 23,12: ACCORD AND SATISFACTION,
No p.ym.nt by T.nant or receipt by Landlord of. I...er .mount then the Rant herein stipul.ted shall be deemed
to be other than on account of the eaI1\est stipulated Rem nor shall any endorsement or statement on any check or any
I.tter .ccompanying any such check Of paym.nt os RanI or the Ilk. be deemed an accord .nd satisfaction, .nd Landlord
may .coapt such chack or paym.nt without prajudica to Landlord's rlghl$ and remedies \0 reocMII' the balance of such
Rant or pursue .ny other right .nd remedy provided for In this L.... or .v.llabl. .t law or In equlty, If Landlord shall dlract
Ten.nt to pay R.nt to. 'ockbox" or other depository whereby checi<s ISSued In paym.nt aI Rant are initially cashed or
daposiled by . person or .ntity other th.n Landlord (a1beK on Landlord's authority) then, for .ny .nd ell purposes under
this L..se: (.) Landlord shall not be deemed to heve accepted .uch paym.nt until ninety (90) d.ys after \he data on which
Landlord shall have actually received such funds, (b) Landlord shall be deemed 10 have accepIOd such paymant W (.nd
only if) within said nln.ty (90) d.y period, Landlord sholl not have refunded (or .ttempted \0 refund) .uch payment to
T.n.nt .nd (e) Landlord shall not be bound by .ny .ndorsemant or .tatem.nt on any check or.ny IeI\er accompanying
any check or payment and no such endorsement, statement or letter shall be deemed an accord and satisfaction.
Landlord or Landlord's bank m.y accept .uch check or paym.nt without prajudica to Landlord's right to recover the
baI.nce of such rani or pursue .ny other remedy pt'Ovided In Illls L...., .t law or In equity, Nollllng COnl81ned In the
Immediately preceding ..ntence .h.1I be construed to place T.n.nt ln defauK of Tenanrs obligation to pay Rant W .nd for
so long .s T .n.nt sh.1I timely pay the Rant required pursuant to this L.... In the manner designated by L.ndlord,
Section 23,13: CORPORATE TENANTS,
In the event the Tenant hereunder Is a corporation, the persons exeoutlng this Leaae on behalf of the Tenant
hereby covenanl.nd warranl \he\: \he Tenont Is . duly conslituted corponltion qu.llf1ed to do business In the .tata In which
Landlord's Building Is loceted: .11 T.n.ors franchise, c:orporat..nd other lien.bIe tax.. h.ve been paid to d.ta; all future
T -Moblle(WHdPsging>-CaPltaICIty-Klosk.FINAL
June 8, 2005 \ MIIIerICB
29
() Q
fprms, raparta, _ and other documanta -.ary for Tanantlo comply with applicable laws will be flied by Tanant wilen
due: and such persons are duly authorized by the governing body of IUch corporation 10 axecute end deIlver this Lease
(Including the warTant and/or power of attomay provisions contained In SectIon 16,02) on behali of the corporation,
Section 23,14: TENANT'S GUARANTOR,
Delated,
Section 23,15: ReCORDING,
This Lasse shall not be recorded: howevar Landlord shall have th. right to record a short form or m.morandum
thel'eof, at Landlord's expense, at any time during the term hereof. and Tenant shall execute same.
SeelIon 23,16: AGENT OF LANDLORD,
Agent has acted as an agent of Landlord in connection with the .xecution of this Lease end shall not In .ny .vent
be held liabla 10 the Landlord or 10 Ten.nt for the fulfHlment or non-fulflllment of any of the terms or condllions of this
L.... or for any action or pt'OC88dlng that may be taken by Landlord agelnst Tanant, or by Tenant ageinst Landlord, Any
waiver of Landlord'. llabllily hereunder, InctudIng any wall/er of subrogation rights, shall apply with equal force and effect
to, and .s a walvar of any Iiabillly of, Agent.
Section 23,17: HAZARDOUS MATeRIAL,
(a) As used harein tha term "hozardou. mlllerlel" m..ns any flammabla, expIoalva, medical, human or
animal ti..u.. or .ubstance., hazardous or Ioxlc IUbstance, material or wasta (including, without limitation, asbestos and
chlorofluorocarbons) which has been, or In the fulurels, determined by any state, federal or local governmental authority or
any law, ordinance, .tatute, governmentai NIe or _1atIon 10 be capable of po.1ng a risk of Injury 10 health, safely or
property and/or the use, .torage and/or dl.posal of which is _Ialed by any __ental aulhortIy, including, without
limitation, all of thosa materials and sub.tances dealgnaled as hazardous or Ioxlc by the local government having
juri.dlction over tha Premise., th. U,S, Environmental Protection Agency, the Consumer Products Safety Comml.slon, the
Food and Drug Administration or any other govemmental agency now or hereafter authorized 10 _late material. and
substance. Tenant shall not cause or permit any hazardous matw18J to be lnatatled In the Premises as a part of ' Tenant's
Work or olhe!wise brought upon, used, kept, stored 01' dlspoMd of In 01' about the Proml... or the Shopping Center by
Tenant, It. agents, employees, contractors 01' Inv_, Notwtth.tandlng the foregoing, Tenant may handle, slore, use and
di.posa of products containing .mall quandll88 of hazardous materials (such as aeroeoI can. containing In_s, toner
101' copiers, pelnts, vamlsl'1es and cleanlng supplies) of insignificant quantlli.. .tored In ..aled contelners and used In
accordance with manufacturers' requirements.
(b) Ii tha Premls.., any equipment (including, wIthoutlimitatlOn, HVAC equlpmant), trade fixtures or other
mechanical apparatus therein contain any hazardous materials Installed by Tenant, ita agenta, employees, contraclor8 01'
invltees, Landlord, at ita election, .haIl have the right to (i) cause Tanantlo remove and propetly dlspoee of same, all at
T .nant'. sola cost and expense, In accordance with applicable law end means end methods "Illl'OV8d In advance by
Landlord and ita prot...lonal consultants, and Landlord .hall have the right to monitor such -'t or (ii) perfOl'm the
removai and dl.posallheraof itseli, In which .....nt Tenant shell comply with au reasonable requirements Impoeed by
Landlord with respect to the performance of such -'t, including wtlhout Ilmitatlon closing the Premloea for bU.lness and
ramalning closed durtng tl'1e performance of .uch -'t, and Tenent shall reimburse Landlord, on demand, for the cost
Incurred by LandlOl'd In performing such removal (Including LandIOl'd's cost of professional oonsullants),
(c) Tanant.hall:
(i) Prompdy provide Lendlord with copies of any document, comlIIpondence,
raport or communicallon, written 01' oral, raIaIlng to hazardous materlals
at 01' effecting tha Shopping Center (x) to 01' from any regulatory body, 01'
(y) stating a baa'" for any potential liability or responslblll\y of Tenant,
Landlord, or the Shopping Center: Including all such documents,
co.....pondance, reports or communicaliona prep&r8d by 01' on bahali of
Tenant. In eddllion to the above, at Landlord's request, Tenant .hall
provida coples of any and all record. and communlcalions __ar
relating to hazardous materials at 01' affecting the Shopping Canter,
(iI) Immediately notify Landlord in the """"t of a lU.pected 01' confirmed
rei.... of a hazardous materlal or violation of environmental laws at or
affecting the Shopping Center and caused by 01' related 10 tha operations
of Tenant, \Is employee., contractors, agent., or any party acting on
behalf of Tenant and, at Landlord'. sole option, _ promptly remedlate
or correct such reteaae or violation to Landlord'. aatiafecUon or reimburse
Landlord'. cost of remediation (Including reasonabla attorneys' and
consultants' f...) a11...at forth In (b) abova; and compen.ate Landlord
and/OI'thlrd perti.. for all r..ullant damage,
(ill) Parmtt Landlord reasoneble accaas \0 the Premls.. for the purpose of
conducting an .nvlronm.ntal audit or testing, the cost of wf11ch .hall be
borna by Landlord unl..s the results indicate activity prohibited by
environmental laws or hereunder.
(d) In accordance with the Occupational Safaty and Health Administration Asbestos Rule (1995), 59 Fed,
Reg, 40964, a. amended and .upplemanted ("OSHA AabMtoa Rul..), Landlord hereby notifies Tenant of the _nce
or poesible presence of a.beslos containing materials ('ACMe") and/OI' prasumed a.bestos containing materials
("PACMe") (as such terms are daflned In tha OSHA Asbestos Rule) within the Premises or adjoining enclosed common
T -MobIIe(WikIPagIng}-CapltalCity-Klosk-F1NAL
June 8, 2005 \ MnlerlCB 30
';l C)
,are... Wany, The ACMs and PACMs may take the form of pipe wrap, vinyl asbeatoe'floorlng, sprayed on or trowted on flra
proofing. acoostical plaster, Insulation. textured ceiling paint and other forms, The speclflc location of any ACMs or
PACMs within the Prami..s or adjoining Common Areas may be ascertained by Tenant requesting in writing from
Landlord. without cost or expensa to Tenant. the applicable portions of any envlronmenlal impact survey conducted by
Landlord regarding the Sh_lng Center, The purpo.. of Landlord'. notification Is to make Tenant, its agents. employees
and contractors aware of the presence or poallble presence of ACMs and/or PACMs In the Shopplng Center In order to
avoid or minimize any damage to or dlaturbance of such ACMe and/or PACMs during the progress of Tensnrs Work
and/or Con.tructlon Work, Tenant .hall obtain a signed acknowledgment from its agents. employeeo and contractors
working In or about the Preml8es Indicating thet such agents, employees and contractors are aware of the presence or
possible presence of ACMs and/or PACMs within the Shopping Center and agreeing not to disturb the same during the
performance of Tensors Work and/or Construction Work. At Landlord's request. Tenant shall deliver to Landtord copies
of such signed acknowledgments.
(e) Tenant shall comply with all applicable Govemmental Requirements affect1ng the Premi.... the operation
of Tenant'. bu.lness at the Premises. and the u.. and ramoval of any substances therefrom. Including, without limitation,
hazardous malerlals Installed by Tenant. Its _nts, employees, contractors or inviteeB, Such compliance shall include.
inter alia: (I) the flllng by Tenant of all governmental applications and registrations for all substances uoed, stored.
manufactured. generated or otherwl.. In the Praml...; (II) the obtaining of alllican... and permits with respect thereto:
(iii) the timely flllng from time to time, a. required, of ell reporta end other matters required to be flied with governmental
authorities having Jurisdiction: and (Iv) nollfylng each of Its agents. employees and contractors of the presence or
presumed pre..nce of ACMs and PACMs within the Sh_lng Center.. ..I forth above,
(f) Tenant shall protect, defend, Indemnify and hold Landlord harmless of, from end against all claims.
ect1ons. liens. damands. costs. damages, punlt1ve damages, expen.... fines and judgment. (Including Iegel costs and
attomeys fees) incurred by reason of any ectual or eaaertad faUure of Tenant to fully comply with the provisiOns of thl.
Section 23,17 and/or spills or other contamination of ait, soil. or water by or resulting from any hazardous materials
Installed by Tenant. its agents, employees, contractors or Invltee8 at or around the Premises or the Shopping Center or
resulting from removal thereof.
(g) Upon ten (10) days prior written request from Landlord, Tenant shall execute, acknowledge and deliver to
Landlord a wrilten .tatament In form &etisfectory to Landlord certlfying (i) W true. that Tanant has not disposed of any 011,
grease, toxic, or hazardous material, at the Premises or (II) that any such substances used, proceaaecl or generated at the
Premises have been disposed of properly In accordance wlth ell applicabla Governmental Requlremenla. ~ Tenant i.
unable to certify althar of the above. Tenant .hall so not1fy Landlord and give Landlord tha details resulting In Tenanh
Inablllly to'.o certify,
(h) Tenant shall surrander tha Praml... to Landlord upon the expiration or earlier termination of this Laue
free of hazardous meterlals brought thereon by Tenant and those ect1ng on its beha~ 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 Section shall survive the expiration or sooner termination of this lease.
Section 23,18: FINALIZATION OF CHARGES,
Notwithstanding anything to the contrary contained In this Laue, Tenant's failure to object to any statement,
invoica or billing rendered by Landlord within a period of one hundred alghty (180) days efter receipt thereof shall conotJtute
Tenant'. acquiescence with respect thereto and .hell render such statement. Invoice or billing alinel and binding account
stated between Landlord and Tenant. Landlord and Tenant intand that tha foregoing provision shall supersede any right to
audn or request beck up documentation from Landlord which may otherwlsa be provided by this L.... and the foregoing
provisions are not Intended to grant any such right to Tenant not otherwise expressly provided In thls Lease.
Section 23,18: PRIOR LEASE,
Deleted,
Section 23,20: FINANCIAL INFORMATION.
Tenant shell at any time and from tima to time within twenty (20) days of written request from Landlord. deliver to
Landlord such finenclellnformetlon concerning Tanant. Guarantor and Tenanrs and Guarantor's business operations as
may be requested by Landlord. any mortgagee or prospective mortgagee or purch...r or prospective purchaser,
Section 23,21: SPRINKLER CHARGE,
Deleted,
Section 23,22: NOTICE TO MORTGAGEE,
~ the holdar of any mortgage which has alien agelnst the Shopping Center or any pert thereof fOlW8rd. to Tenant
written notice of the existence of such lien, then Tenant shall, so long as such mortgage is outstanding, be required to give
to such lienholder the same notice and opportunlly to correct any defeun as Is required to be given to Landlord under this
Lease, but such notice of default may be given by Tenant to Landlord and such lienholder concurrently.
Section 23.23: WAIVER OF JURY TRIAL,
Landlord and Tenant hereby waive all right to a trial by jury in any IlUgatIon related to this Lease including any
mandatory counterclaim or cross claim.
T-Mobllo(WlklPaglngj-CepltslCl\y-K1oBk.fINAL
June 8. 2005 \ MIl1erICB
31
_on 23,24: COHFIDENTIAL~
It I. agreed and understood that Tenant may acknOWledge only the existence of this Lea.. by and between
Landlord and Tenant. and thet Tenant may not disclose any of the lerm. and provision. contained In this Lease to any
tenant or other occupant In the Shopping Centar or to any agent, employee, subtenant or asslgMe of such tenant or
occupant. Tenant ackr1<lWledges that any breach by Tenant of the _ents set forth In this SectIon 23.24 shall cause
Landlord irreparable harm. The terms and provisions of thls Section 23.24 shall 8UNive the termination of this Lease
(whether by lap.. of time or olharwise),
~\
\"",
Sectlon 23,25: ENTIRE AGREEMENT,
(al There are no oral agreements between the parties hereto affecting this Lea.e, and this Lease .upersede.
and cancels any and all previous negotiations, .rrangements, letters of Intent. I.... propooaIs. _res, _ments.
representations. promises, w.rtantiea .nd understandings _ the parties hereto or dlspl~ by Landlord 10 Tenant
wlth respect 10 the subject m.tter thereof. and none theraof shall be used 10 Interpret or conalnle this Lease, The Lease
.et. forth all of the covenents, promises. agreements. conditions .nd underatandlngs be_ Landlord and Tenant
concemlng the Preml.... Landlord'. Building and the Shopping Center, No aJtaration. amendment. change or eddltlon to
thl. L.... .hall be binding upon L.ndlord or T.n.nt unl... reduced 10 writing, signed by them .nd mutually dellve<ed
between th.m,
(b) The .ubm,,,'on by Landlord to Tonont of thlo ~ _ he.,. no b1nc1lnc1 force 01' _, .hen
not con_tilLIte .n option for ....I"g of the Preml... nor confer any rtghta or Impoa IIIIY obllg8dona upon either
party until the ex_n thereof by Landlord .nd the dollve<y of en executed orfglnal COI>Y thereof to Tanem,
(e) THE UNDERSIGNED ACKNOWLEDGES THAT IT FULLY UNDERSTANDS THE CONFESSIONS OF
JUDGMENT CONTAINED IN SECTION 16,02(b) AND (e) AND THAT THE LANDLORD-TENANT RELATIONSHIP
CREATED BY THIS LEASE IS COMMERCIAL IN NATURE, TENANT WAIVES ANY RIGHT TO A HEARING WHICH
OTHERWISE WOULD BE A CONDITION TO LANDLORD'S OBTAINING THE JUDGMENTS 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 TENANrS
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 FUU Y ADVISED OF THOSE RIGHTS AND
NONETHELESS KNOWINGL Y. 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 .nd T.n.nt h.ve 8l<<lCU1od thl. L..se as of the dale first hereinabove written,
LANDLORD:
PREIT SERVICES, LLC, AGent for PR CAPITAl CITY LIMITED
PARTNERSHIP
BY:
TENANT:
By:
Title:
TIt..:
T.MobtIe(WIldPaglngj-Cap1la1CIty-K_.fINAL
June 8. 2005 \ M1l1er/CB
32
o
{'"
~
, , '
-"-,.-~ ,"-
.-.,-.:.,;;:.;...... ........ ~ ~
1,~ ... -~-,.. -"" ~, ~
~'- --- ,.-'
- a l~ '.
..
'f. I
\\
';
.
~
~
r:t
III
-
Q.
.2;
~
exhibit "K
page 1 of2
\\ll
..,
\\lor
'\\\
\t-\
\\\\
iit\
hti
~t\\
\\i~
l"~
\\~..
\lJ\
, \1\\
"'" J fi
~ t-\
. l
~
.\\\\
\\I~~,
~it
ill
\I\i
~\\\
\\\~
3t~~
\\\.
\t\\
U\3
\\\\
it\i
~\\\
i
-.
....
01
~n
6~
:x:
-' .".
i=::a
.,,01
-~
o
o
- (jl
g 1"'"1
'~ ~
~ t/'l
~t).
6v
.r:}~~
~I
!l
~
.' . . .
" ',\11'.
"
~
c...
q
(\)
:>
:>
(\)
,'<
\. ,f)ClIIbIt "A"
pegezof2 .
:J:
1"'"1
~
-i
vi
@
T-MobIIe(WIIdPagIngl-CopltalC~.FINAL
June 8, 2005 \ MlIIerICB
EXHIBIT -8-
GUARANTEE OF' J:U~
DELETED,
33
<)
wB
Q
EXHIBIT 'C'
COMPLETION CERTIfICATE
DATED AS OF
o
PARTI
SHOPPING CENTER lEASE (the .l....) dated .. of
Parties:
PR CAPITAl CITY LIMITED PARTNERSHIP
WilD PAGING, INC
("landlonl')
("TonlUll.)
Premises:
Tsnant Store No.
K-6
GLA of Premises:
192 sauare feet
Actual Opening Date:
Renl Commencemenl Dale:
Expiration Date:
PART"
Tenant, Intending legally to be bound hereby, hereby ratJflas the lease end hereby carllfIas and agrees with
landlord.. follows:
A, the dates and other infonnetlon set forth in this Completion Certiflcate are true and COlT8Ct; and,
B. the Rent Term commences on the Rent Commencement Date let forth In PART I hereof and ends
absolutely and wIthouI notice at 11:59 P,M, (local lima) on the Expiration Date, unless sooner terminated es provided In
this lease or extended by written agreement of the parties; end,
C, the laesa hes not bean ..signed, supplemented, amended or _se modified; the leasa represents
the entire agreement between the parties ... to the Premises and Its _Ing; there are no breaches or other dafauIts by
landlord under the lease: all cond~lons of the leasa to be performed by landlord end necessary to the enfon:aabUIty of
the lease have bean satisfled: the lease Is In all other regards In fuU force and effect; and,
0, Tenant hes accep\ed possession of and has entered Into occupancy of the Premises; the Premises has
been accep\ed by Tenant as being In accordance with the terms and conditions of the \.ease; no Rent has bean norwlll be
paid or prepaid other then as provided In the lease and there ere no defenses, offsets, deductions or counterclaims
against the enforcement of the lease by landlord or the payment of Rent by Tenant, and,
C, the lease Is subordinate to the REA and to any and all mortgages on or _s of trust as to the Shopping
Center subject 10 the non-dlsturt>ance provision of SectIon 18,02 of the laesa,
PART III
In add~lon 10 the foregoing certiflcatlons, Tenant has delivered to landlord 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 landlord) from contractors engaged by
Tenant that all work In or about the Premises h... bean fully completed In accordsnca with Ihe Final Plans llIlIl'OV8d by
landlord and that each of Tenenrs contrac\Or$, as well as all subcontrac\Or$, laborers and materbllmen, h... been paid in
full: and
B, properly executed and acknowledged releases of mechanics', materialmen's and laborers' liens
(satisfactory to landlord) with respect to the Premises from eacll of Tenanrs contractors and from fN8fy subcontractor
and materlatman; and
C, a sat of approved 'as-bullt. drawings and speclltcat10na for the work done by Tenant in and about the
Premises, prepared, signed and sealed by Tenanrs architect, together with a complete set of Tenant's ....-bullt. sprinkler
and other fire protection drawlngo and speelf\catlons prepared, signed and sealed by Tenanr. arch~ or engineer: and
0, true and complete copies of certificates of occupancy and licenses from governmental bodies having
jurisdiction over Tenanrs use or occupancy of any part of the PremIseS; and
E. a detaned cost break~own sheet satlafactory to Landiord specifying the line ttems and cost of each line
~em of the work done by, through or under Tenant In and about the Premises; and,
F, elactrical underwriters certificate from an organization satisfactory to landlord,
T -MobIIe(WlldPsglngrcapl\alClty-Kloek.F1NAl
June 8. 2005 \ MilkNfCB 34
@i) @
All terms defined In any other"part of the Lease .... used heroin .. daflned theraln,
This COMPLETION CERTIFICATE has been axacutad .. of tho data first abova written,
TENANT:
WILD PAGING, INC,
(Corpol'llle s-I)
By:
Tm.:
-=
TIlle:
T-MoblIe(WIldPagIng)-CapltalClly-K_-FINAL
June 8, 2005 \ ~B
35
7'~7 7:]:' 0607
10:4€.21 z.m.
08-10-2006
10111
, ,
, '
',I
" ,
j:! :
STATEMENT
D-'_.
",-
2II5lI
,HII,
,
'I",'
, ,I
i"
ili
lil.1
Iii-I,
PR CAPITAL CITY L1MITEDIPAR~ERsHIP
,
I
, :1
FOR INQUIRIES CALL: Justo v._ TEL: 1"\7-737-1275 or: F~ 717.737.0107 ArnounI R.nitttd: i
! I: ! Rlmlttop porion wiIh PlYf'*lf. I'
:1 i I
ii,', i I: ' I
_ _ ___ _....~1r":"_J...J:_ ~_:~UU_~~j~..-L_--J_L=___-,-~~J___
t 1/,12lI03 ,'Ilol...._.! I!lill 1,110 :
111_ IIM....""R~,I 1'11':1 $,'_"1',' (702..)!' '4,37,.... 01 '
1MmJ05 ! : M"'~Fln:I" :' 'I 21.17)' {4(8) I ' zua 01
,- 'I'; ENlIY~~/;! so.oo'l;, (1:") I 42.33 01
1Mt2005 ~; REALESTAlET~; JI'I 51.,3'1,' (1.12) I ' ~.21 01
1_ C... ElICftOW' ! !,' , .,0... I' (42.04) I 231.34.'
I Iii I
10N2001 ; MINIMUM f'ENT j : ,: I 5,1..51 I ' 5,'''.51
: : I
1CMS12005 u.ruang FIftI. I . 21.r7 i ~.17
1M'2005 E'*V)'MIIMgwnintF... 5O.DCl ; ~.ao
1UWOQS REALESTATETAx!S "51.13 51.'3
1M12OO1 c.w ESCROW ; 27..20 271.20
7I1JZOOe ....INUM RENT ! I I 5.1.'" 5.'11.51
7111ZDD1 MtrUIng Fund I ! i 21.11 215.57
i :,1 ,
7/'l2aoe En.. ~ FeT: I 1IO.OD 5D.1JD
7/112m1 iREALESTATET~ESii 51.13 58.13
7111200I CNI ESCROW I 27t.zo 27V.zo
1111200I MINIMUM ftlNT: 'i' 5. '..51 ! 5,1..51
II1I2OD1 ....... Pund! , ' 2I.IT I 21.17
1/11200I 'EnlrgyMlrllgemlnlFM: 50.00 ! 50.00
" , '
II1J2OQ1 REALESTATETA.lCES I 51.'3 i 51.13
II'~ CAM ESCROW 271.20 I 27t.2Q
i
I
cl.......
MIi.eft..
p..,.bIeT.:
PO BOX 9240& I
ClEVELAND OH 441VJ
To:
T-MobiIe
Sulli11.1'O
3'11 RouI_ 38
Mt ~IWI NJ 01054
DET"'L-C~RGE
j:,
PAYMENTS .ECTIOH I '
II I
GII._ Poo_
~ .Pa~IReC'tJ-l'hri YOIl
'2f1tnoos 'P.~nl RJ.d. ~k Y~
I: . : i:,
"17~ ~~.Th~kYO!J i
2/1~ P.~tR~-ThIIl/CYOU
'171''1.' ~' ""f" - Thonl< Vou
4110q0ae P~l ~. ThMII YCKl
7/'''' payrMnl R~. Th.ra You
11412006 Payment Rec'lf. Th.-.k You
II
I II
I'
:1 II
1.1:
, 11
! Ii
i:
_.
StII:"""No.
Page-
"
from: CAPITAL CITY MALL
350& CAPITAl.. CITY MALl. DR
CAMP HilL PA 170"-1003
TIMId: T -Mati!_
"
, , ;
p~i'
~'o2.u
~m.5a
~5OlI'"
5.5OlI,50
.....,50
5.510'.11I
$,5"'"
$,610'"
,
R_ I
I
I
Ii
-
~1_
",1Of_~'
11.7.&1.11
32,332.34
27,102.10
..--
3fI_tz
.........
"..,
1511
'527
,...
..50
'SOD
1130
,...
ACCOUNT SUMMARY
',"IencePriorTo
+= co..... From
EXHIBd 2
I
1/112003
1/'12003
,..
22.3Z2.24
,~
~-_....------~
'0-.47:'"'2 a.m.
."ll4IlO'
....
,....'
1
--
,..,.-. -
-""" 110-
.....-
(IOI-1Ol
_-:-;_e;-
:"~; 0601
S't",.sM!N'f \
I \
I'
, i
\' 1\
_~I~f"" ,~"... '.
Ii ~1IOIl,"oUlf: =-,
II ' ' \ "
'\1 i\ I
I '\ \
\ " "
~ " .._'10
II
\
I
I,
\
II,
\ \\;
\ \\\\
\ \\\\
\ ~\
}\ \'\
,~to \ \ ,1".-
.,.,-l \ -- .,.,-
'r ',\1 :
\ \1,',,\
I','
I
Ii,
I', '
\\ :\\
~~\t\1
\ ~ \~
r\
_ owr\1O ~
......~
','1,
\
(II
II'
\,\
I'
\''
\\\
I'
, ,
\\i,\
I
\
\
I.'"
\
\
,
i
-\-
-- ,.- - ~ - - . - --
\
-- - .~ - _.-
\ ~ \
~!_,+ -1- _\\-
\,\ ' \ '\ '
\ ,\\\\\ \ \\ ...
\ I I \
,I
- ._- - ~
,\
,I
"q
I
'\';
1,1
I
I,
_, _ 1:-
\
\
i
,
"
"
I,
,
,
r
\
\
,I
\
"
\
\
\
\,
II'
,,"
,lj,
\~"
~\
.\{
,',t
II
,
,
\
\
\
\
I
\
Ii: ,I':
\1,1\ ,\
'\\
\,
1'1 \
I II
1.1
II
"
\
I
I'
\ I ,
\
\
Vi
(:) ~
t~ -
\. ...c
0 ......,
6- = 0
C 0;;:'> -n
~~~ "'"'
t...) ".. ::r.l::n
... c:
~ - Lv ~ G"> [11,-
, .c:: c..) -oi",!
-"CJ
lJ r- CJ (~;~ (1:.\
-1- -1",
~, ~ C> -0 ('')::.3
( ~) ::J~ ,,()
~ , w ;Sm
--:?' :--\
:'3 r ~n
~ -" co .<
IN THE COURT OF COMMON PLEAS
OF CUMBERI,ANn COUNTY, PF~NNSYL VANIA
)
PR CAPITAL CITY LIMITED PARTNERSHIP, )
CIVIL ACTION. LAW
Plaintiff,
)
)
)
)
No. 06-5091
v.
Defendant.
}
)
)
)
)
)
)
)
)
)
)
AFFIDAVIT OF SERVICE O}'
NOTICE UNDER RULE 2958.1 O}'
JUDGMENT AND EXECUTION
THEREON, NOTICE OF
DEFENDANT'S RIGHTS
WILD PAGING, INC.,
Filed on Behalf of the Plaintiff,
PR Capital City Limited Partnership
Counsel of Record for this Part,y:
)
)
)
)
)
)
)
)
)
)
)
)
Stephen S. Zubrow
PAID No. 43523
Moira Cain-Mannix
Pa, J.D. No. 81131
MARCUS & SHAPlRA, 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 CUMBERLAND COVNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
}
v. )
)
WILD PAGING, INC., )
CIVIL DIVISION
No. 06-5091
Defendant.
)
)
AFFIDAVIT OF SERVICE OF NOTICE UNDER RULE 2958.1 OF JUDGMENT
AND EXECUTION THEREON-1.cNOTICE OF DE}~ENDANT'S RIGHTS
I, Moira Cain-Mannix, being duly sworn according to law, hereby certify that:
1. I served upon Wild Paging, Inc., Defendant in the wWlin action, an original
Notice Under Rule 2958.1 of Judgment and ExecutIOn Thereon, Not:ce of Defendant's Ri:4lts by
1 i nited States Certified Mail, Return Receipt Requested on the 25th day of September, 20(}!&. A
true and correct copy of said Notice is attached hereto as Exhibit A; and
2. Attached hereto as Exhibit B is the onginal certified return receipt issued by the
United States Post Office, providing proofof service ofthe Notice Under Rule 2958.1 of
Judgment and Execution Thereon, Notil;(' Gf U,:.~'~'nd;,lnt':) R.ghts on September 25,2006.
~~:)UIA~ _ ~ .
Moira Cain-Mannix ~~'-'::.!::'-7
MARCUS & SHAPIRA LLP
35th Floor, One Oxford Centre
301 Grant Street
PJttsburgh, P A 15219
(412) 471-3490
Sworn to and sub~ed
before me this_.-!:l__ day of
October, 2006.
~J?2cMJJ<
Notarj Public
My Commission Expires:
COi.'llvl0NWEAiJH OF PENNSlL\,p..i J-
Notarial Seal
Laurie B. Miller, Notary Public
City of Pittsburgh, Allegheny County
My Commission Expires Jan. 28, 2008
Member, Pennsylvani" Associ"li'~,n (';1 NDla,il:~,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYL VANIA
PR CAPITAL CITY LIMITED PARTNERSHIP, )
)
Plaintiff, )
)
v. )
)
WILD PAGING, INC. )
)
Defendant. )
)
)
)
)
CIVIL DIVISION
No. 06-5091
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: WILD PAGING, INC.
A judgment in the amount of $22,558.84 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 mDGE 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 LA \-VYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP,
Lawyer Referral Service
4th Floor, Cumberland County Courthouse
Carlisle, P A 17013
(717) 240-6200
Exhibit A
September 11, 2006
1!.~lk~(~
tephen S. Zubrow
Pa. I.D. No. 43523
Moira Cain-Mannix
Pa. I.D. 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
. Complete items 1, 2, and 3. Also complete
item 4 if Restrlcted Delivery is desired.
. Print your name and address on the reverse
so that we can return the card to you.
. Attach this card to the back of the mallplece,
or on the fIoQnt.if space permits.
1. Article
I tjD53
2. ArtIcle Number
(Transfer from senitce label)
PS Form 3811, ~ 2004
ExpnIss Mall
O.Retum Receipt fOr Merchandise
o Insured M7 .0 C.O.D.
4. Restricted DelIve1y? (Extra Fee).} 0 Yes
...
7006 0100 0000 6663 0617
Don..ac RlIUn ReceIpt 1Cl1l18H2-M-1540
Exhibit B
. ~"~"i',.-" '~"
. ,
CE-RIU:lt~\J.~~."nf' SERVICE
The undersigned hereby certities that a true and correct copy of the foregoing Affidavit of
Service of Notice Under Rule 2958.1 of Judgment and Execution Thereon, Notice of
Defendants' Rights was served upon the followmg by lJnitcd States mail, first class service,
postage prepaid, this ~ day of October.. 200':,
Wild Paging, !lH:.
c'o '},\rcles~; Ct'Ural
2f)"} Andrews Road
Trevose, PA 19053
(')
c
<
clUj
~1 ~_~~~
Z~
~Z
...... ~."
'--,,}
f ~'.-}
{ .
.-1
'-r
"'""'r)
di
~3
~n
w .<