HomeMy WebLinkAbout02-3563Attorneys for Plaintiffs:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
M~,qi CAFFE INTERNATIONAL, INC., doing
business as MAN[
Defendant
IN TIlE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
CONFESSION OF ,JUDGMENT
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 the Plaintiff and against Defendant, as follows:
Principal
Attorneys' Fees (15% commission)
Total
$36,623.40
5,493.51
$42,116.91
Respectfully submitted,
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Dated: July 23, 2002
By /~ es~ Di~a ~ ~7
~a. i.D. i~o.' 4~2d' Esquire
Attorneys [or Plaintiffs:
JAMES A. DIAMOND~ ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
V.
MANI CAFFE INTERNATIONAL, INC., a Penn-
sylvania Corporation doing business as
M~,,r[ C~'F~,
Defendant
11'4 THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
COMPLAINT IN CONFESSION
OF ~IUDGMENT FOR MONEY
Plaintiff, CONNECTICUT GENERAL Lnm INSURANCE COMPANY, a Connecticut Corporation,
through its attorneys, James A. Diamond, Esquire and the law firm of Johnston & Diamond, P.C.,
brings this action pursuant to Rule 2950, et seq., of the Pennsylvania Rules of Civil Procedure,
whereby Plaintiff confesses judgment against Defendant, Mm~,a C~rFE INTERNATIONAL, INC., a Penn-
sylvania Corporation trading as MANX Cneee, for money in the total amount of $42,116.91, on the
basis of a commercial shopping center lease between the parties relating to property located at Store
No. C-3 at the Camp Hill Shopping Center, Camp Hill, Pennsylvania, and in support thereof alleges
as follows:
1. Plaintiff, Connecticut General Life Insurance Company (heminafter"Landlord"), is a
Connecticut corporation which has a place of business at the Camp Hill Shopping Mall, 32na Street
and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. Defendant Mani Caffe International, Inc., a Pennsylvania Corporation trading as Mani
Caffe (hereinafter "Tenant"), at relevant times had a business address at Store No. C-3, Camp Hill
Shopping Mall, 32na Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011.
3. Landlord's predecessor-in-title and Tenant entered into a certain Indenture of Lease
and Lease Agreement dated March 31, 2000 (hereinafter referred to as the "Lease"), pursuant to
which Landlord's predecessor-in-title leased to Tenant certain commercial retail store premises des-
ignated as Store No. C-3 in the enclosed mall erected as part of the Shopping Center commonly
known as the "Camp Hill Shopping Center" or as the "Camp Hill Shopping Mall," located at 32na
Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. A true and correct
photostatic copy of the said Lease is attached hereto as "Exhibit 1," and incorporated herein by refer-
ence.
4.
The said Lease that is attached to this Complaint as "Exhibit 1," and incorporated
herein by reference, is a true and correct copy of an original instrument which has been executed by
Defendant.
5. The Lease was entered into between Landlord's predecessor-in-title and Tenant for
the purposes of Tenant conducting a retail business at the Camp Hill Shopping Mall, and does not
constitute a residential lease.
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6. The judgment being entered herein by confession is not being entered against a natu-
ral person in connection with a consumer credit transaction.
7. Tenant, as of July 1, 2002, was in default in the payment of this instrument in the
principal amount of at least $36,623.40, as is more fully set forth in the Statement of Delinquencies
which is attached hereto as "Exhibit 2," and incorporated herein by reference.
8. The Lease, in Section 19.2(a), defining "Deliberate Events of Default," provides in
pertinent part as follows:
"(a) The following shall be deemed to be a Deliberate Event of Default:
1. If Tenant shall (i) fail timely to make payment of Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating
Costs, Tenant's proportionate share of Landlord's all risk property insurance,
the HVAC Charge, Marketing Charge or Media Charge in each case on the
date such payment is due hereunder, without regard to any grace period
and/or written notice otherwise required from Landlord, and any such failure
shall be repeated two (2) times in any period of twelve (12) months...."
9. Tenant failed and refused to make timely and proper payments of Fixed Minimum
Rent, Tax Rent, Tenant's proportionate share of Operating Costs, and other charges due under the
Lease, in each calendar month during the period from at least December of 2000, through July 1,
2002.
10. Although the Lease provides that Tenant's failure to make proper payments of rent
and other charges more than two times in a twelve-month period constitutes a Deliberate Event of
Default without regard to any grace period or any written notification of default, Landlord neverthe-
less notified Tenant of its default, including most recently by its Notice of Default, through its coun-
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sel, dated June 26, 2002, a true and correct copy of which is attached hereto, marked as "Exhibit 3,"
and incorporated herein by reference.
11. Tenant has failed or refused to cure its material monetary delinquencies.
12. The said repeated monetary delinquencies of Tenant, which are continuing as of the
date of this Complaint, and which had been repeated twelve times in the twelve months leading up to
the date of this Complaint, constitute a "Deliberate Event of Default" within the meaning of the
Lease, and Landlord currently has the right under the Lease to confess judgment against Tenant for
all of those delinquencies and for other sums due under the Lease.
13. In this regard, Section 19.7(a) of the Lease provides, in pertinent part, as follows:
(a) IF TENANT SHALL DEFAULT 1N THE PAYMENT OF RENT OR ANY
OTHER SUMS DUE HEREUNDER BY TENANT, OR 1N THE EVENT OF A
DELIBERATE EVENT OF DEFAULT AS DEFINED HEREIN, TENANT
HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY PROTHO-
NOTARY OR ATTORNEY OF ANY COURT OF RECORD WITHIN THE
UNITED STATES OF AMERICA, OR ELSEWHERE, TO APPEAR FOR TEN-
ANT, WITH OR WITHOUT COMPLAINT FILED; AND IN SAID SUITS OR
ACTIONS TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS,
AGAINST TENANT AND ALL PERSONS CLAIMING THROUGH OR UNDER
TENANT, IN FAVOR OF LANDLORD, FOR ALL OR ANY PART OF SAID
RENTAL AND/OR SAID OTHER SUMS, INCLUDING, BUT NOT LIMITED
TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER SUB-
SECTION a) or SUBSECTION b) OF THIS SECTION, AND INCLUDING ANY
AMOUNT TO WHICH LANDLORD WOULD BE ENTITLED AS DAMAGES
UNDER THE PROVISIONS OF THIS LEASE, INCLUDING, BUT NOT LIM-
ITED TO, ARTICLE 19, AND FOR INTEREST AND COSTS, AND A REASON-
ABLE ATTORNEY'S COMMISSION NOT TO EXCEED FIFTEEN PERCENT
(15%) OF THE TOTAL AMOUNT OF SUCH RENTAL AND/OR SAID OTHER
SUMS FOR COLLECTION FOR WHICH THIS LEASE OR A TRUE AND COR-
RECT COPY THEREOF, SHALL BE SUIq~'ICIENT WARRANT, AND SUCH
POWERS MAY BE EXERCISED AS WELL AFTER THE TERMINATION OR
EXPIRATION OF THE TERM OF THIS LEASE. THE WARRANT OF ATTOR-
NEY HEREIN GRANTED SHALL NOT BE EXHAUSTED BY ONE OR MORE
EXERCISES THEREOF, BUT SUCCESSIVE ACTIONS MAY BE COM-
MENCED AND SUCCESSIVE JUDGMENTS MAY BE CONFESSED OR OTH-
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ERWISE ENI'ERED AGAINST TENANT FROM TIME TO TIME AS OFTEN AS
ANY OF THE RENT AND/OR OTHER AMOUNTS AND SUMS SHALL FALL
OR BE DUE OR BE IN ARREARS, AND THIS WARRANT OF ATTORNEY
MAY BE EXERCISED AFTER THE TERMINATION OR EXPIRATION OF THE
TERM AND/OR DURING OR AFTER ANY EXTENSIONS OF THE TERMS OR
RENEWALS OF THIS LEASE. TENANT HEREBY ACKNOWLEDGES THAT
BY AGREEING TO THE FOREGOING CONFESSION OF JUDGMENT AND
WARRANT OF ATTORNEY, TENANT WAIVES THE RIGHT TO NOTICE
AND A PRIOR JUDICIAL PROCEEDING TO DETERMINE ITS RIGHTS AND
LIABILITIES, AND FURTHER ACKNOWLEDGES THAT LANDLORD MAY,
ON DEFAULT BY TENANT UNDER THE LEASE, SUBJECT TO SUCH NO-
TICE REQUIREMENTS, 1F ANY, AS ARE HEREIN EXPRESSLY PROVIDED,
OBTAIN A JUDGMENT AGAINST TENANT FOR ALL SUMS DUE HERE-
UNDER, AND LEVY EXECUTION ON SUCH JUDGMENT AGAINST ANY
AND ALL PROPERTY OF TENANT WITHOUT ANY OPPORTUNITY OF
TENANT TO RAISE ANY DEFENSE, SETOFF, COUNTERCLAIM OR OTHER
CLAIM THAT TENANT MAY HAVE, AND THAT TENANT KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY GRANTS LANDLORD THE FORE-
GOING RIGHT TO CONFESS JUDGMENT AND WARRANT OF ATTORNEY
AS AN EXPLICIT AND MATERIAL PART OF THE CONSIDERATION BAR-
GAINED FOR BETWEEN TENANT AND LANDLORD. TENANT CERTIIqES
THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD THE OPPORTUNITY
TO BE REPRESENTED) AT THE SIGNING OF THIS LEASE AND IN THE
GRANTING OF THIS CONFESSION OF JUDGMENT AND WARRANT OF
ATTORNEY BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS
THE CONI~ESSION OF JUDGMENT AND WARRANT OF ATTORNEY WITH
COUNSEL. TENANT FURTHER CER~I'iP'IES THAT IT HAS READ AND UN-
DERSTANDS THE MEANING AND EIq~ECT OF THE FOREGOING CONFES-
SION OF JUDGMENT AND WARRANT OF ATTORNEY. TENANT FURTHER
ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL TRANSACTION,
AND THAT THE RELATIONSHIP BETWEEN LANDLORD AND TENANT
CREATED HEREUNDER IS COMMERCIAL IN NATURE.
14. Pursuant to the Lease, including in Section 19.7(a) thereof, Tenant, in addition to be-
ing liable for the principal amount of Tenant's said delinquencies, is liable to Landlord for attomeys'
fees for collection equal to fifteen (15%) percent of such damages, together with costs of suit.
15. The following assignments of the instrument have been made since its execution and
delivery: The Lease, as well as all other Leases relating to the said shopping center, was assigned to
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Landlord by the prior owner of the shopping center, Camp Hill Shopping Center Associates, a Penn-
sylvania General Partnership, effective November 1, 2000, in connection with a conveyance of the
property to Landlord.
16. There has been no prior exercise of the warrant of attorney to confess judgment con-
tained in the said instrument in any jurisdiction.
17. As is more fully detailed in the Statement of Delinquencies which is attached hereto
as "Exhibit 2," and incorporated herein by reference, the amount due and payable from Defendant
under this instrument is as follows:
Principal
Attorneys' Fees (15% commission)
Total
$36,623.4O
5,493.51
$42,116.91
WHEREFORE, Plaintiff demands that judgment be entered against Defendant in the amount
of Forty-two Thousand, One Hundred Sixteen Dollars and Ninety-one Cents ($42,116.91), as author-
ized by the warrant of attorney contained in the instrument.
Respectfully submitted,
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Dated: July 15, 2002
p~. ies A. Diamond, Esquire
.D. No. 43902
Attorneys for Plaintiff
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EXHIBIT 1
INDENTURE OF LEASE
%
THIS INDENTURE OF LEASE, made on the .. ~' day of Mamh, 2000, by CAMP HILL
SHOPPING CENTER ASSOCIATES a Pennsylvania general partnership ("Landlord"), with a notice
address of ¢/o Kravitz Properties, Ine. 555 City Line Avanue, Suite 460, Bala Cynwyd, PA 19004
(Kravitz Properties, Inc. being hereinafter referred to as "Agent") and MANI CAFFE
INTERNATIONAL, 1NC. authorized to do business in the Commonwealth of Pe~msylvania, trading as
MANI CAFFE with an address at 2 Dogwood Court, Camp Hill, PA 17011 ("Tenant").
WITNESSETH:
A. Premises.
(a) Landlord hereby leases to Tenant and Tenant hereby rents from Landlord the store
premises (the "Premises") designated on the plan attached as Exhibit "A' hereto as Premises No. C~3 as
part of a shopping center presently known as Camp Hill Shopping Center ("Shopping Center") and
presently comprising the area shown in Exhibit "A', located at 32nd Street and Trindle Road,
Cumberland County, Camp Hill, Pennsylvania 17011, the Premises being measured and described by
the following dimensions which are measured from the outside building lines of each wall of the
Premises or, in the ease of those walls separating the Premises from other stores in the Shopping Canter,
from the center lines of such walls, the Premises being approximately five hundred thirty-seven square
feet (592 sq. ft.) together with the right to the non-exclusive use in common with others entitled to use
same of all such automobile parking areas, driveways, malls, courts, corridors, footways, loading
facilities and other facilities as may be designated by Landlord from time to time, as more fully set forth
in and subject to the terms and conditions of this Indenture of Lease and the Lease Agreement
(collectively the "Lease"), and to such reasonable rales and regulations for the use thereof as may be
prescribed from time to time by the Landlord in accordance with Section 5.4 of the Lease.
B. Length of Term.
The Original Term (defined herein) and Tenant's obligation to pay rent and occupy the Premises
in accordance with the terms of the Lease shall commence on the earlier of the following dates (such
earlier date being hereinafter called the "Commencement Date"): (1) sixty (60) days after delivery of
premises to Tenant for Tenant's Work or; (2) the date on which Tenant shall first open the Premises for
business with the public. The Term (defined herein) shall be for a period of seven (7) years from the
Commancement Date, plus the period, if any, between the Commencement Date, if it falls on a day
other than the first day of the month, and the first day of the Erst full calendar month in the Original
Tenn. The expected date of delivery of possession to Tenant is on or about March 17, 2000.
C. Fixed Minimum Rent.
(a) Tenant shall pay to Landlord a guaranteed amaual minimum rent ("Fixed Minimum
Rent") for each of the following periods during the Term as follows:
YEARS ANNUAL MONTHLY
Years 1 - 2 $15,000.00 $1,250.00
Years 3 - 5 $18,000.00 $1,500.00
Years 6 - 7 $21,000.00 $1,750.00
(b) Tenant shall however pay for all utilities consumed within the Premises from the date
Tenant receives possession of the Premises fi-om Landlord and thereafter throughout the Tenn.
(c) Each such installment of Fixed Minimum Rent shall be due and payable on or before the
first day of each calendar lnonth in the Original Term, in advance, at the office of Agent or at such place
as may be designated by Landlord from time to time, without any prior demand therefor and without any
deduction or setoff whatsoever, the first installment to be paid on the Commencement Date whether or
hot the Cmnmencement Date is the first day of a calendar mouth, hfthe event that the Cmnmencement
Date of the Term shall be a day other thau the first day of a calendar nmnth, Tenant's first payment of
Fixed Minimum Rant shall be prorated for the fractional month between the Commencement Date and
the first day of the first full calendar month iu the Term, on a per diem basis (calculated on a thirty (30)
day mouth). Landlord may accept auy payment by Tenant of a lesser amount than shall be due from
Tenant without prejudice to any rights or remedies which Landlord may have against Tanant. Any
endorsement or statement on any check accepted by Land ord, or any sta ement in correspondanc~e""l
accompanying such check, that acceptance of such Iesser amount is payment in full, shall be give~-~
/'/M
effect. All rent shall be pai,~' tn United States currency and shall, it uther than cash, be drawn on a
United States bank.
(d) As long as Tenant is open for business to the public' 0u or before tile Commencement
Date, continues to operate and is not in default under this Lease, Landlord shall abate Fixed Minimum
Rent in the form ora rent credit in the amount of One Thousand Dollars ($i,000.00) per month for each
month after the Commencement Date and prior to and including December 31, 2000. If the
Commencement Date is other than the first day of a calendar month and as long as the other condition
set forth in the previous sentence of this subsection are satisfied, Landlord shall abate Fixed Minimum
Rent in the form of a rent credit the amount of which shall be the lesser of (i) One Thousand Dollars
($1,000.00) or (ii) the prorated Fixed Minimum Rant for that partial month.
D. Percentage Rent.
In addition to tile Fixed Minimum Rent as aforesaid, Tenant, in accordance with Section 2.1 of
the Lease, shall pay to Landlord, as Additional Rent (defined herein) hereunder ( Percentage Rent ),
and as part of the consideration of the aforesaid demise, for each Lease Year (defined herein) in tbe
Original Term equal to eight percent (8%) of that portion of Gross Sales (as defined in Section 2.2 of the
Lease) during each Lease Year which is in excess of the applicable Percentage Rent Gross Sales Bas~.
The Percentage Rent Gross Sales Base for the following periods within each Lease Year shall be:
YEARS ANNUAL
Years l - 2 $187,000.00
Years 3 - 5 $225,000.00
Years 6 - 7 $262,500.00
E. Use of Premises.
Subject to tbe provisions of Axtiele 5 of the Lease, Tenant shall use the Premises solely for the
purpose of conducting the business of a coffee bar for the preparation and retail sale of coffees and
specialty coffee drinks including cappuccino, latte, and mocha; granita shakes, biscotti, panini
sandwiches, Belgium waffles, Gelati, soft drinks, hot chocolate and tea; confectioneries of chocolate
covered coffee beans and fruit; other items currently listed on the manu attacl'~ed to this Lease as Exh b t
"E"; and for no other purpose. Notwithstanding the foregoing, Tenant covenants and agrees that no beer,
liquor or wine or other alcoholic beverage shall be sold, served or consumed at or on the Premises
(except as an additive or flavoring in coffee or other beverages sold at or on the Premises) and no frying
or grilling of food shall be performed at or on the Premises (but baking of food shall be permitted
therein), and the Tanant shall not be operate the Premises as a full-service full menu sit-down restaurant.
Tenant, as a condition to the right to sell any liquor in the limited' circumstances permitted in the
preceding santence, shall obtain all liquor licenses and other governmental permits required for such
sales and shall furnish Landlord with evidence that Tenant's liability insurance covering liquor or so-
called "drain-shop" liability.
F. Shopping Center Hours of Operation.
The present hours of operation of the Shopping Center during which Tenant must have tile
Premises opan for business with the public (subject to adjuatment by Landlord as set forth in Section
5. l) are:
Mm:day through Friday:
Saturday:
Sunday:
I0:00 A.M. to 9:00 P.M.
10:00 A.M. to 9:00 P.M.
12:00 Noon to 5:00 P.M.
G. HVAC Charge.
In accordance with and subject to the adjustments set forth in Section 12.1 of the Lease, fro' each
year during the Original Term, Tenant shall pay Landlord the atmual amount (in equal monthly
instalhnents) of Nine Hundred Dollars ($900.00) for the heating and/or cooling medium supplied by the
Landlord to the Premises. The dollar amount set forth herein is an initial estimate only. As long as
Tenant is open for business to the public on or before the C0mmancement Date, continues to operate and
is not in default under tbis Lease, Landlord shall abate the full amount of the HVAC Charge due for the
period of time fi'om the date Landlord delivers possession &the Premises to the Tenant to and in
October 31, 2000. ~
PIIILAI\1149973~2 070593.000 2
H. Taxes.
. In accordance with and subject to the adjustments set forth in Section 3.1 of the Lease, for each
"Tax Year" (as defined in said Section) during the Original Term, Tenant shall pay Landlord on account
of Tenant's share of any "Taxes" (as defined in such Section), the annual mnount of One Dollar and Six
Cents ($1.06) multiplied by tho number of square feet of floor area contained within the Premises. The
dollar amount set forth herein is an initial estimate only.
I. Operating Costs.
In accordance with and subject to the adjustmeuts set fortb in Section 7.3 of the Lease, for each
Accounting Period (as defined in smd. Section) during tb~ Original Total, Tenant shall pay Landlord
on account of Tenant's share of "Operatmg Costs" (as there~n defined), the ammal amount equal to Six
Dollars and Tbirty Cents ($6.30) multiplied by the number of square feet of floor area contained within
the Premises. Tbe dollar amount set forth herein is an initial estimate only.
J. Marketing Fund and Media Fund.
In accordance with and subject to the adjustments set forth in Article 15 of the Lease, for each
year during tbe Original Term, Tenant shall pay to Landlord the mmual amount of One Dollar and
Twelve Cents ($l.12) multiplied by the number of square feet of floor area contained witbin the
Premises for the Marketing and Media Charge, subject to any increases described in Sections 15.1 and
15.2.
K. Electricity Charge
In accordance with and subject to tbe adjustments set forth in Article 12 o£tbe Lease, for each
year during the Original Term, Tenant shall pay Landlord tbe annual amount (in equal nmnthIy
installmants) of One Thousand Eight Hundred Dollars ($1,800.00). The dollar amount set forth herein is
an initial estimate only. As long as Tenant is open for business to the public on or before the
Commencement Date, continues to operate and is not in default under this Lease, Landlord shall abate
the full amount of the Electricity Charge due for the period of time from the date Landlord delivers
possession of the Premises to the Tenant to and including October 31, 2000~
L. Proportionate Insurance.
Intentionally Deleted.
M. Remodeling.
In accordance with the provisions of Section 4.2 of the Lease, Tenaot shall remodel the entire
Premises not later than sixty (60) days from the date of delivery of the Premises to Tenant.
N. Security Deposit.
Tenant, contemporaneously with the execution oftbis Indenture of Lease and Lease, bas
deposited with Landlord the sum of Two Thousand Dollars ($2,000.00), receipt ofwlfieh is hereby
acknowledged by Landlord which depos t is now the property of the Landlord and is to be held as
seour ty for the faithful performance by Tenant of all of the terms, covenants and conditions of this
Lease by said Tenant to be kept and performed during the Term, subject to Article 20 of the Lease.
O. Lease Documents.
. I~ addition to the Indenture of Lease and the Lease Agreement consisting of pages, the
following are attached to the Lease and are hereby incorporated in and made part of the Le~se as fully as
though set forth at length in the Lease Rider, if any, and tbe following Exhibits:
Exhibit "A" - Site Plan of Shopping Center
Exhibit "B" ~ Sign Regulations ~
Exhibit "C" - Electricity Schedule
Exhibit "D" - Landlord's Charge Rate Adjustment Schedule
Exhibit "E" - Tenant's Current Menu
Exhibit '?' ~ Form of Guaranty to be executed by Robert Pham and Naomi Pinata
Exhibit "G" - Plan of Premises with Delineation of Pem~itted Outside Seating Area
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have
caused this Lease to be duly executed the day and year first above written.
LANDLORD:
CAMP HILL SHOPPING CENTER ASSOCIATES
BY: DonaI~d~w. Miller~' ~'e~eral Pa~
TENANT:
MANI CAFFE~I~I.T-F.~ATIONAL, INC., trading as
P[[ILAlU149973~ 070593.000 4
LEASE AGREEMENT
ARTICLE 1
TERM; DEFINITIONS
SECTION 1.1 Confirmation of the Term
(a) At any time after the Commencement Date of the Term the parties shall execute and
deliver to each other, at the option of Landlord, either an instrument in recordable form or a letter
agreeraent prepared by Landlord, wherein Tenant shall: (1) certify that the Lease is in full force and
effect and (2) certify the commancement and termination dates of the Original Term.
(b) This Lease and the tenancy hereby created shall cease and terminate at the end of the
Term without the necessity of any notice from either Landlord or Tenant to temfinate the same, and
Tenant hereby waives notice to vacate the Premises and agrees that Landlord shall be entitled to the
banefit of all provisions.of law respecting the suramary recovery of possession of Premises from
holding over to the same extent as if statutory notice had been given, a tenaut
(c) The period eolmnancing on the date hereof and terminating on the date immediately prior
to the Commeneelnent Date is herein referred to as the "Initial Term," and the period from the
Commencement Date to the stated expiration date (and all extensions or renewals thereof) or earlier
termination of this Lease is herein referred to as the .... ,,
Original Term. For the purposes of this Lease the
word "Term" shall be deemed to mean the Initial Term and the Original Term and ail extensions or
renewals thereof(hereinafter collectively called the "Term"). During the Initial Term, all of the terms,
covenants and conditions hereof shall be in full force and effect, bu Tenant's mon
~ ary ool ga Ions
hereuuder, except for payment of the utility, electricity and the HVAC Charges, shall be abated until the
Original Term has commenced.
SECTION 1.2 Failure of Tenant to Open; Failure to Operate
It is expressly understood and agreed that Landlord does not consider the Fixed Minimum Rout
in itself a fair and adequate rental for the Premisas and would not have entered into this Lease unless
Tenant had obligated itself to pay Pementage Rent which Landlord expects to supplement the Fixed
Mininmm Rout to provide such fair and adequate rental return. Therefore, (i) if Tenant fails to open for
business at the Commenceraent Date and/or (ii) thereafter, if Tenant fails to continuously operate its
busiueas Jn accordance with the terms of this Lease or vacates the Premisas prior to the expiratiou of the
Term, Landlord will suffer damages in an amount which are not readily ascertainable and thus in any
anch event Landlord shall have the right, at its option, to collect as liquidated damages, and not as a
penalty, in addition to all other charges which are due hereunder, one-thirtieth (1/30th) of an amount
equal to the monthly installment of Fixed Miniraum Rant for each day whicb Tenant fails to so operate.
SECTION 1.3 Certain Definitions
"Attorney's Fees" has the meaning set forth in Section 21 ·25.
"Accountiug Period" means the period consisting of twelve (12) consecutive ealandar months,
corem, cueing on a date determined by Landlord from time to time and each succeeding twelve (12)
caleudar month period during the Original Term.
"Additional Rent" has the meaning set forth in Section 2.6.
"Commencement Date" has the raeaning set forth in Paragraph B of the Indenture of Lease.
reas meaus all areas, space, facilities, equipment, and sigos, to the extent made
available by Landlord for the common and joint use and benefit of Landlord, Tenant and other tenants
and occupants of the Shopping Center, and their respective employees, agents, subtenants,
concassionaires, licensees, customers and other invitees. If and to the extent made available by
Landlord, Common Areas shall include, but not be limited to, the sidewalks, parking areas, access roads
and drives, driveways, parking decks, bridges, landscaped areas, tla4ck serviceways, tunnels, loading
docks, open and anclosed pedestrian walkways, corridors and malls, courts, stairs, roofs, skylights,
signage, ramps, elevators, escalators, comfort and first aid stations, public washrooms, community hall
o1' auditorium, parcel pickup stations, utility lines and utility rooms.
'Delibera e Eveuts of Defanlt has the meaning set forth iu Section 19
.2.
"Ea ly Tennma Ion Date" has the meaning set forth in Section 4.4(c).
'Envilomnental Stat~. ~s" has the meaning set forth in Section ~.3(j).
. "Event of Defanlt" bas the meaning set forth in Section 19.1.
"Excluded Areas has the meaning set fort ~ in Section 3.1(d).
"Gross S les has the meaning set forth in Section 2.2.
"Hazardous Material" has the meaning set forth iu Sectiou 21.23(a).
"HVAC Charge" has the meaning set forth in Section 12.4.
"Initial Term" has the meaning set forth in Section 1.1 (c).
"Lease Year" means the twelve (12) full calendar months of the Term commencing with the
Jannary 1st immediately following the Commencement Date and ending December 31st of such
calendar year and each succeeding twelve (12) month period; provided, however, that the first Lea~e
Year shall commence oh the Commencement Date and terminate on the immediately following thirty-
first (31st) day of December in the Term and the last Lease Year shall tem~inate on tbe last day of the
Term.
"Major Tenant" has the meaning set forth in Section 4.4(c).
Major Tenant Lease has the meaning set forth tn Section 4.4(c).
"Marketing Charge" has the meaning set forth in S ectioh 15.i.
"Marketing Fund" has the meaning set forth in Section 15.1.
"Media Charge" has the meaning set forth in Section 15.2.
"Media Fund" has the meaning set forth in Sectiou 15.2.
"Operating Costs" has the meaning set forth in Section 7.2.
"Original Te ....
rm hastbemeamngset forth in Section I.I.C.
"Percentage Rent" has the meaning set fortb in Paragraph D in tbe Indenture of Lease.
"Percentage Rent Gross S les Base has the meaning set forth in Paragraph D in the Indenture of
Lease.
"Premises" bas the meaning set forth in Paragraph A in the Indenture of Lease.
"Remediation" has the meaning set forth in Section 21.23(c).
"Rental Adjustment Date" has the mea~fing set fmlh in Section 2.1 (d).
"Shopping Ceuter' ~as the meaning set forth n Paragraph A in the Indenture of Lease.
"Taxes" has the mean'ng set forth in Section 3.1.
"Tax Rent" has the meaning set forth ill Section 3.1.
"Tax Year" has the meaning set forth in Section 3.1.
"Term" has the meaning set forth in Section 1.1 (c).
Tenant's Work" has the meaning set fortb in Section 4.2(b).
ARTICLE 2
RENT
SECTION 2.I Percentage Rent
(a) Tbe Percentage Rent shall be payable without prior demand and without any setoff or
deduction whatsoever, at the times set forth hereinafter at the place t ~en fixed for the payment of Fixed
Minimum Rent.
Pi [i LA lU t40973~2070593.000 6 ~
(b) Not later th,.. thirty (30) days after the expiration ol me first" ,,
Lease Year of the Term
aud, {julass Landlord exercises its option as set forth in the next sentence hereof, thereafter not later than
tbirty.(30) days after the expiration of each subsequent Lease Year in the Term, Tenant shall pay to
Landlord the Percentage Rent due for the Lease Year in question. Iu the event that Percentage Rent
shall be payable for any Lease Year in the Term, after the expiration of the first Lease Year containing
twelve (12) complete calendar months, Landlord may require Tenant to pay, as Additioual Reut,
together with each monthly installment of Fixed Minimum Rent due hereunder commenciug with the
first such payment due immediately after tbe receipt by Tenant of such notice an amount'equal to one-
txvelfll~ (l/12th) of eighty percent (80%) of the Percentage Rent payable for the immediately preceding
Lease Year. Thereafter, Tenant shall continue to pay estimated payments of Perceutage Rent together
with each monthly installment of Fixed Minimum Rent due for each calendar month in the Term;
provided, however, that the amount of such estimated monthly payments of Percentage Rent may, at
Laudlord's option, be adjusted at the expiration of each an .
of Tenant's statement referred to xn Section 2.3~'b~ to a ~e,q,u,,en~t~.L.~e,as, e Year after receipt by Landlord
, , n a .........u'~,~ to one-twelfth (1/12th) of eighty
pemeut (80%) of the Percentage Rent payable for the Lease Year immediately preceding such
adjustmant m~d commencing with the payment of Fixed Minimum Rent due immediately after receipt by
Tenant of notice of such adjustment, Tenant shall continue to pay such adjusted amount until the next
adjustment. Although estimated Percentage Rent shall be payable monthly as aforesaid, the final
computation and payment shall be on an annual basis. Within thirty (30) days after receipt of each
notice from Landlord implementing the foregoing adjustment, Tenant shalI pay the Landlord an alnount
equal to the aforesaid montbly estimated payment of Percentage Rent retroactive to the first day of the
(c) In the event that the first or last Lease Year shall consist of other than twelve (I2) full
calendar montbs, the Percentage Rent Gross Sales Base for sucb Lease Year shall be deemed to be that
portion of the Percentage Rent Gross Sales Base obtained by multiplying the applicable Percentage Rent
Gross Sales Base set forth in the Indenture of Lease by a fraction, the numerator of which shall be the
number of days contained in such Lease Year and the deuomina or of which shall be three hundred
sixty-five (365).
(d) In the event the amount of the Percentage Rent Gross Sales Base set forth herein is
subject to adjustments during the Term, and the date on which such adjustmeut is to occur (the "Rental
Adjustment Date") is other than the first day of a Lease Year, tbe Percentage Rent Gross Sales Base of
the Lease Year in which the Rental Adjustment Date shall fall shall be the sum oft (1) the lesser
Percentage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by a fraction, the
Omnerator of which shall be the number of days in the period cmnmencing on tbe first day of the Lease
Year in wbicb the Rental Adjustment Date shall falI and ending un the day immediately prior to the
Reutal Adjustment Date and the denominator of wbich sball be tlucee hundred sixty-five (365), plus (2)
the greater Percentage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by a fraction,
the uumerator of which shall be the number of days in the period commencing on the Rental Adjustment
Date and ending on the last day of the Lease Year n which the Rental Adjustment Date shall fall and the
deuo ninator of wbich shall be three hundred sixty-five (365)·
(e) Except as provided herein to the coutrary, there shall be uo abatemeut, apportioun~ent or
suspension of tbe Percentage Rent payable hereunder. If pursuant to any other section of this Lease,
Teuant should be entitled to an abatement, apportionment or suspension of the Fixed Minimum Rent
payable hereunder, Tenant shall continue to pay to Landlord the Percentage Rent during the period in
wbich the Fixed Minimum Rent shall have been abated, apportioned or suspeuded; and during any and
all Lease Years in which there shall be one or more such periods, the Percentage Reut Gross Sales Base
shall be reduced in the same proportion as the Fixed Mininmm Rent shall have been abated, apportioned
or suspended.
(0 If during any Lease Year the Prem scs shall not be o en for busi
on winch Tenant ,s obligated to conduct business pursuant to this LPease a~" e-~e.s's'°'n '°ne ~ more days
uot be entitled to an abatement, apportionment or suspension of the Fixed Minimum Rent~ the
Pereeutage Reut Gross Sales Base shall be deemed to be reduced to zero for such days. In the event that
any reduction of the Percentage Rent Gross Sales Base is applicable to one or more days during a Lease
Year, the Percentage Rent Gross Sales Base to be used in calculating tbe Percentage Rent for such Lease
Year shall be detemained by averaging on a daily basis (excluding from the calculation those days
during which the majority of stores in the Shopping Center shall not have been open for business) the
Percentage Rent Gross Sales Base applicable duriug such Lease Year.
SECTION 2.2 Gross Sales Defined
(a) The words "Gross Sales" as usea herein shall mean the gross amount of all reveuue
geuerated by sales, rental, performance of services or otherwise by Tenant mid/or by any subtenant,
licensee or coucessionaire in, at or from the Premises (including, but not limited to, catalogue
sal
made at or frmn the Preh ~es), whether for cash, credit or oth~., consideration, xvitI3 such other
· consid, eration being determined at fair market value and financing charges on all Gross Sales (without
reserve or deduction for inability or failure to collect) including, but not limited to, such sales, rental,
and services (1) as a result of transactions origiuafing iu, at or fi'om the Premises, whether delivery or
performance is made from the Premises or from some otber place; (2) pursuaut to mail, telephone,
telegraph, telecopy, fax, interact, closed TV circuit, and other devices, automated or other,.vise, xvhereby
m-ders are received at the Premises or (3) which Tenant or any subtenant, licensee or concessionaire in
the normal course of its business would attribute to its operations at the Premises. Gross' Sales also
include all deposits not refunded to purchasem. Each sale upon installment or credit sball be treated as a
sale for the full price in the month during which such sale sball be made, irrespective of the time wheu
Tenant shall receive payment therefor.
(b) The following shall be deducted from Gross Sales if originally included therein, or
excluded therefrom, as the case may be, provided separate records are supplied supporting such
deductions or exclusions, namely: (1) any exchange of merchandise betweeu stores of Teuant where
such exchangn is made solely for the convenient operation of Teuaut's bnsiness and not for the purpose
of consummating a sal6 made in, at or from the Premises, (2) returns to sbippers or manufacturers, (3)
cash or credit refunds to customers on transactions other,vise iucluded iu Gross Sales, (4) sales of
fixtnres, machinery and equipment after use thereof in the conduct of Teuant's business in the Premises,
(5) amounts collected and paid out by Tenant for any sales tax imposed by any duly constituted
govenunental authority provided such tax is both added to the selling price as a separate and distinct
amount in addition to the regular price of Tenant's merchandise aud paid to the taxing authority by
Tenant (but not by any vendor of Tenant), (6) sales at a discount to employees, not to exceed one
percent (1%) of almua[ Gross Sales, (7) receipts from the permitted pay telepbone and vending machines
referred to in Section 5.3(q). No value added tax, and no franchise or capital stock tax and no income,
gross receipts or similar tax based upon income, profits or gross receipts as such shall be deducted from
Gross Sales.
SECTION 2.3 Percentage Rent Statements
(a) Not later than the fifteenth (15th) day after the end of each calendar month in the Term,
Tenant shall submit to Landlord an itemized and accurate written statement signed by Teuant, its duly
authorized officer or duly anthor/zed representative reflecting the full amount of Gross Sales made
during the preceding calendar month and certifying same to be tree and correct. If the Cmnmencement
Date hereof shall not be the first day of a calendar month, the period between the Commencement Dat~
and the first day of the first full calendar month in the Term m~.d Tenant's Gross Sales during such
period shall be added to tbe first calendar month for both the purpose of the computation of Percentage
Rent and the purpose of reporting of Gross Sales.
(b) Not later than the date set forth in Section 2.1(b) bereof, Tenant shall submit to Landlord
a complete written statement f Tenant s Gross Sales for the preceding Lease Year in suclt reasonable
detail, as requested by Landlord, accompanied by a statement signed and cert fled by Tenant, its duly
authorized officer or representative, stating that the Gross Sales reported by Tenant are in accord with
the amount thereof set forth on Tenant's regularly maintained books and records and that the Gross
Sales coufonn with and are cmnputed in compliance with the definition of Gross Sales contained in this
Lease. Simultaneously witb the delivery of the statement referred to in the preceding sentence, Tenant
shall pay to Landlord tbe full unpaid balance of the Percentagn Rent due and payable for such Lease
Year, if any. In the event Tenant is making estimated payments of Percentage Rent and Tenant is not
then in default hereunder or otherwise indebted to Landlord, any excess of estimated Percentage Rent
that Tenant may have paid for such Lease Year over the Percentage Rent actually due for such Lease
Year shall be refunded to Tenant within thirty (30) days; provided, if such overpayment is for the last
Lease Year, Landlord shall not be obligated to refund to Tenm~t tbe amount of such overpayment until
Tenant has fully performed all of its obligations under the Lease, is riot indebted to Landlord and bas
vacated the Premises in accordance with the provisions of this Lease. In the event Tenant is indebted to
Landlord for any reason whatsoever, Landlord may deduct such amount owed from such overpayment.
(c) Tbe acceptance by Landlord of payments of Percentagn Rent or reports thereof shall be
without prejudice, and shall in no event constitute a waiver of Laudlord's rigbts to claim a deficiency of
sucb Perceutage Rent or to audit Tenant's books and records as set forth in Section 2.4 hereof.
(d) If Tenant shall fail to deliver such statement as required by Section 2.3(b), xvithin the
period set forth tberein, Landlord shall bare the right thereafter to employ an accountant to make such
examination of Tenant's books and records as may be necessary to certify the amount of Tenant's Gross
Sales for said Lease Year, the certification so made sball be binding upon Tenant and Tenant shall
promptly pay to Landlord the cost of the examination, together witb the fi~ll balance of Percentage Rent
due and payable for said Lease Year.
PIIILA Ill 149973/2 070593000 8
SECTION 2.4 Teuanl's Re. ords
. (a) Tenant covenants and agrees that the business records of Tenant and of any subtenant,
licansee or concessionaire upon the Premises shall be maintained in accordance with generally accepted
accounting principles. Furthermore, Tenant shall keep at all times during the Term, at the Premises or at
the general office of Tenant, full, complete and accurate books of account and records in accordaoce
with generally accepted accounting principles and sufficient to establish an audit trail xvith respect to all
operations of the business to be conducted in or from the Premises, iucluding, without limitatioo, the
recording of Gross ~ales and the receipt of all merchandise into and the delivery of all merchandise from
the Premises during the Term and Tenant shall retain such books and records, copies of all tax reports
submitted to the appropriate taxing authorities, as well as copies of contracts, vouchers, checks,
inventory records, dated cash register tapes with sealed continuous totals or other equivalent original
sales records and other d~cuments and papers in any way relating to the operation of sucl~ business (all
][/hich are hereinafter collectively referred to as "books and records"), for at least tlu'ee {3) years frmn
and of the Lease Year to which they are applicable, or, if an audit is connnenced or ifa controversy
shoold arise between the parties hereto regarding the rent payable hereunder, until such audit or
controversy is terminated even though such retention period may be after the expiration of the Term of,
or earlier tenninatiou of, this Lease. Such books and records shall be open at all reasonable times daring
the aforesaid retention period, after prior written notice to Tenant, to the inspection of Landlord or its
duly authorized representatives, who shall have full and free access to such books and records, the right
to audit such books and records and the rig!~t to require of Tenant, its agents and employees, such
information or explanation with respect to such books and records as may be necessary for a proper
exalnination and/or audit thereof. If for any reason Tenant does not fully comply with the above
obligations on the date designated by Landlord for an inspection and/or audit of Teuant's books and
records, and Landlord agrees to reschedule such inspection and/or audit, Tenant shall reimburse
Laudlord, on demand, for Landlord's out-of-pocket expenses relating to such rescheduling.
(b) In the event Tenant violates the provisions of Section 2.4(a) and as a result of such
violation, Landlord, or its duly authorized representative, is unable to conduct a proper exanlination
and/or audit, the parties agree that Landlord shall have been deprived of an important right under this
Lease and, as a result thereof, will suffer damages in an amount which is not readily ascertainable and
thus, in such event, Landlord in addition to and not in lieu of any other remedies which Landlord has
under this Lease, at law or in equity, shall have the right, at its option, to collect, as liquidated damages
aud not as a penalty, an amount equal to twenty percent (20%) of the greater of (1) Percentage Rent
reported for the period or periods in question, or (2) the am~ual Fixed Minimum Rent payable for the
period or periods in question.
SECTION 2.5 Audit
If the examination and/or audit referred to in Section 2.4 shall disclose that Tenaut has
understated its Gross Sales by two pement (2%) or more for any Lease Year during the period being
examined, Tenant shall pay to Landlord, upon demand, the cost of such examination and/or audit in
addition to the deficiency in Percentage Rent which shall be payable in any event.
SECTION 2.6 Additional Rent
All sums of money or charges required to be paid by Tenant under this Lease, whether or not the
same are designated "Additional Rent", shall for all purposes hereunder be deemed and shall be paid by
Tenant as rent. If such amounts or charges are not paid at the time provided in this Lease, they shall
nevertheless, if not paid when due, be collectible as rent with the next installment of Fixed Minimum
Rent thereafter falling due hereunder together with a late charge of fifteen percent (15%) per atmum
from the due date thereof to the date of payment, but not in excess of the highest rate allowed by law. Iu
the event any check tendered by Tenant to Landlord is not honored on initial presentation, Tenant shall
pay Landlord the greater of Tbirty-Five Dollars ($35.00) or the amouot Landlord's bank charges
Landlord for processing such returned check.
ARTICLE 3
TAXES
SECTION 3.1 Taxes
(a) For the purposes of this Section 3.1, the word "Taxes" shall include all Taxes attributable
to improvements now or hereafter made to the Shopping Center or any part thereof or attributable to the
present or future installation in the Shopping Center or any part thereof of fixtures, machinery or
equipmant, all real estate Taxes, assessments, water and sewer and other governmental impositions and
charges of every kind and nature whatsoever, nonrecurring as xvell as recurring, general or special
assessmenls, ordinary as well as extraordinary, foreseen and unforeseen, all metropolitan di
charges, all assessments for .,thools, public improvements and benefits, charges, fees ur assessnlents for
all go.vemmental services or purported benefits to the Shopping Ce'nfer, any business or special services
district, merchants' advertising, use or similar tax, assessment or levy applicable 1o OWners of real estate
or to ally retail establishment, whether payable to a state, county or municipal authority or to a
separately assessed service district, payments ill lieu of Taxes, all business privilege taxes, trash
generation taxes and any tax, fee or excise on the act of entering into this Lease or any other lease of
space in the Shopping Center (including, but not limited to any realty transfer tax) or Ol.~ the use or
occupancy of the Shopping Center or any part thereof, or on the rent payable under any lease or in
comlection with the business of renting space in the Shopping Center, and each and every installment
thereof, which shall or may during the Term be levied, assessed or imposed, or become due and payable
or become liens upon, or arise in connection with the use, occupancy or possession of, or ally interast ill,
the Shopping Center or any part thereof, or ally land, buildings or other improvements therein, less all
amounts paid as Taxes to Landlord or others by the occupants of any "Excluded Areas" (as defined in
Section 3.1(d) hereof). The word "Taxes" shall not include any charge, anch as water metar charge and
sewer rent based thereon, which is measured by the consumption by the actual user of the item or
service for which tile charge snade.
(b) For each "Tax Year" (as defined in Section 3.1(e) hereof) during the Original Term,
Tenant shall pay to Landlord as Additional Rent ("Tax Rent"), the amount obtained by multiplying the
total of all Taxes payable during such Tax Year by a fraction, the numerator of which shall be the square
feet of floor area of the Promises and the denominator of which shall be tile average of the total amount
of square feet of "leasable floor area" (as defined and computed pursuant to Section 3.1 (d) hereo0 iu the
Shopping Ceuter ill effect on the last day of each calendar quarter in the Tenn. On account of Tax Rent,
Tenant shall pay monthly, in advance, as Additional Rent, together with each monthly instathnant of
Fixed Minthmm Rent, without demand or scruff, an amount equal to one-twelfth (l/12th) of the annual
amount payable on account of Tax Rent, as set forth ill the Section H of the Indentm'e of Lease for each
square foot of floor area contained within the Premises. Such amount may be adjusted by Landlord at
ally tinle during the Term to all amount equal to one-twelfth (1/12) of the Tax Rant payable by Tenant
for the preceding Tax Year. If Tenant's payment on account of Tax Rent for any Tax Year exceeds the
actnal amount payable by Tenant as Tax Rent for such Tax Year, Landlord shall credit such excess to
Tenant within thirty (30) days, and Landlord may elect to apply such excess to any indebtedness to
Landlord. If such Tax Year is the last Tax Year in the Term, Landlord shall refund such excess to
Tenant within thirty (30) days; to the extent Tenant is not indebted to Landlord and provided Tenant has
fidly performed all of its obligations under this Lease and has vacated the Premises in accordance with
the provisions hereof. In the event Tenant is indebted to Landlord for any reason whatsoever, Landlord
may deduct such anlount owed from such overpayment.
(c) Landlord shall have the right to bill Tenant for Tax Rent at any time after each receipt by
Landlord of a bill, assessment, levy, notice of imposition or other evidence of Taxes due or payable all
of which are hereinafter collectively referred to as a "Tax Bill" (whether anch bill is a final bill, an
estimate of ammal Taxes or represents a Tax Bill based upon' a final or partial assessment or
determination). Tenant shall pay the balance of its Tax Rent within thirty (30) days of date of writtan
notice from Landlord containing a written statement setting forth the Taxes for which Landlord has
received a Tax Bill, Tenant's share of Taxes, and Tenant's payments theretofore made oll account of
such Tax Rent. All subsequent monthly payments on account of Tax Rent made by Tenant during such
Tax Year a~ar date of written notice of such bill and statement shall be applied by Landlord toward
payment on account of Tenant's obligation for Tax Rent for the next ensuing Tax Year and shall not
reduce Tenant's obligation to pay the balance due Landlord pursuant to such statement. In making the
computations as aforesaid, a tax bill or photocopy thereof submitted by Landlord to Tenant shall be
conclusive evidence oft. he amount of the Taxes included in the computation of the Tax Rent in question;
provided, however, Landlord shall have the right to bill Tenant for Tenant's share of the Tax Rent for
the last Tax Year ill the Term whether or not Landlord shall thereto fore have received a tax bill covering
the period fi'om the date of the Tax Bill which formed the basis of the most recent installment on
account of Tax Rent billed to Tenant to the expiration of the Tenn. If Landlord has not received a tax
bill and/or has not ascelirained the leased floor area of the Shoppthg Center for such period, Landlord
shall esthn, ate 'tile amomlt of such last installment of Tax Rent on the basis of infonnation contained in
the tax bill most recently received by Landlord, and/or the leased floor area of the Shopping Center,
subject to adjustment when Landlord receives a Tax Bill which includes the period from the date of such
Tax BilI to lhe expiration of the Teml and/or confirms such leased floor area. Tenant shall pay such
adjusted amount upon billing by Landlord.
(d) As used itl this Lease, Excluded Areas shall mean portions of the Shopping Center used
m' designated on Exhibit "A" for use in connection with the operatinn of a depatl:ment store, premisas
which aggregate at least 15,000 square feet of floor area leased to a single tenant, all office space, all
basement space, all out parcels and pad sites, ail buildings shown on Exhibit "A" attached hereto which
are labeled "excluded", and any portions of additions to the Shopping Center referred to in Section
4.3(b) which Landlord hereafter designates as all Excluded Area. For the purposes of this lease, the
xvords "leasable floor area ,,hall mean tbe square feet of floor area in enclosed buildings which are
erectqd ou portions of the Shopping Center other than Excluded Areas and wbich are capable of being
occupied pursuant to an agreement with Landlord, and which are for a tema greater than one (1) year. In
the event of any dispute as to the floor area in the Shopping Ceuter or may portion thereof (other thm~ the
Premises which shall be determined by the provisions of the Indenture of Lease), the substantially
accurate determination of Landlord shall be binding upon the partie~.
(e) For the purpose of this Lease, the words "Tax Year" shall mean the twelve (12) full
calendar montl'`s of the Term commencing with the January 1st innnediately following the
Commencement Date and ending December 31st of such calendar year and each succeeding twa ve (12)
month period thereafter commencing in the Term provided, however, the first Tax Year sball
commence on the Commencement Date and terminate on the immediately succeeding December 31st.
(0 If the Original Term commences or terminates (other than by reason of Tenant's default)
on a day other than the flint or last day, respectively, of a Tax Year, Tenant's Tax Rent for such Tax
Year shall be equitably prorated.
(g) If, after Tenant shall have made the required ammal payment of Tax Rent, Landlord shall
receive a refund of any portion of the Taxes included in the computation of such Tax Rent, provided
Tenant is uot then in default hereunder, within forty-five (45) days after receipt of the refund, Landlord
shall pay to Tenant that percentage of the net refund after deducting all costs and expenses (including,
but not limited to, reasonable attorneys' and appraisers' fees) expended or incurred ix'. obtaining snch
refund, which the portion of the Taxes in question paid by Tenant bears to the entire amount of such
Taxes immediately prior to the refund. Tenant shall not institute airy proceediugs with respect to the
assessed valuation of the Shopping Center or any part thereof for the purpose of secnriug a tax
reduction. Iu the event the Landlord shall retain any consultant to negotiate the amount of Taxes, tax
rate, assessed value and/or other factors influencing the anaount of Taxes and/or institute any
admiuistrative and/or legal proceedings ahallanging tl'`e tax rate, assessed value or other factors
influeucing the amount of Taxes, whether or not such action results in a reduction in the amount of
Taxes, Tenant's Tax Rent shall include the portion of the aggregate of all such reasonable fees,
rea~ouable attorneys' and appraisers' fees and all disbursements, court costs and other similar items paid
or recurred by Laudlord during the applicable Tax Year with respect to such proceedings which is
obtaioed by multiplying the aggregate of such sums by the fraction set forth in Section 3.1(b) hereof.
Laudlord shall have no obligation to contest, object to or litigate the levying or imposition of any Taxes
and may settle, compromise, consent to, waive or other,vise deterntine in its discretion any Taxes
without the consent or approval of Tenant.
(h) If at any time during the Term, as an addition to or substitute for Taxes, in whole or in
part, as same are set forth in Section 3. l(a), and whether or not customary or in the contemplation of the
parties on the date of this Lease, under the laws of any one or more jurisdictions in which the Shoppiug
Center is located, a tax, impost on, charge, assessment, levy, excise or license fee is levied on, imposed
agmnst or measured, computed or determined, in whole or in part, by: (1) rents payable hereunder
(Fixed Minimum, Perceutage, Tax and/or Additional) or (2) the value of any ben placed agaiust the
Shopping Center or against the real property comprising the Shopping Center or any obligations secured
thereby, or (3) the economic value of the Shopping Center, or any portion thereof, or (4) if any other tax
(except Landlord's capital stock, income, inheritance, succession or estate tax), imposition, cbarge,
assessnmnt, levy, excise or license fee which is not referred to in Section 3.I(a), however described or
denoted, shall be levied or imposed by any such jurisdiction, to the extent that the cost of any of tbe
foregoing shall be imposed, either directly or indirectly, on Landlord, such tax, imposition, charge,
assessment, levy, excise or liceus& fee, shall be deemed to constitute "Taxes" for the purposes of this
Section 3.1.
SECTION 3.2 Other Taxes
(a) Ii'` addition to any other Taxes due pursuant to this Article, Tenant shall pay to the
appropriate agency when due or make payment to Landlord for all taxes and other governmental
impositions imposed and/or assessed upon Tenant's rent, lease and business operation, including without
limitatiou, all sales tax, excise tax, value added tax, business privilege tax, use and occupancy taxes,
taxes assessed for trash generation, special services district taxes and other taxes assessed upon the
consideratiou to be received by Landlord under this Lease, and other similar taxes (not inclnding,
bowever, Landlord's income taxes) levied, imposed or assessed by the state in wbich the Premises is
located or auy political subdivision thereof or other taxing authority upou any reut payable hereunder.
Whenever Tenant pays any consideration under this Lease, including without limitation, Fixed
Minimum Reot, Percentage Rent, Tax Rent and Tenant's share of Operating Costs, Tenant shall also pay
to Laudlm-d, at the time of such payment, any taxes measured by the amount of consideration paid
hereunder.
(b) Tenant shall ~o pay to tile appropriate agency or t~ ~andlord if Landlord is charged
· with lh, e responsibility of collecting such monies, prior to the time the same shall become delinquent or
payable with penalty, all taxes imposed and/or assessed upon Tenant's inventory, furniture, trade
fixtures, apparatus, equipment or leasehold imprevements installed by Tenant or by Landlord on behalf
of Tenant, and any other property of Tenant.
ARTICLE 4
CONDITIONS AND REMODELING OF PREMISES;
CHANGES TO THE SHOPPING CENTER
SECTION 4.1 Condition of Premises
Tenant has had the opportunity to examine the Premises and hereby agrees to accept them in the
"as is" condition existing on the Commencement Date. Tenant further acknowledges that neither
Landlord nor Agent has naade any representations as to the present or future condition of the Pren'tis~s,
the presence or absence of Hazardous Materials (as defined in Section 21.23) therein or what items the
prior occupant of the Premises is required to or may leave in the Premises. Landlord shall not be liable
for any inability to deliver possession of the Premises to Tenant by the Commencement Date, except
that any such inability shall extend the Commencement Date by a period of time equal to one (1) day for
everT day after the expected delivery date and the date Landlord delivers possession; provided, however,
if Landlord has not turned over possession by a date which is one year fi'om the date hereof, at
Lmadlord's option this Lease shall be null and void and neither party sball bare any liability herannder to
the other.
SECTION 4.2 Remodeling of Premises; Construction Schedule
(a) As of the Commencement Date, Tenant shall fully and completely remodel the Premises
in accordance with the plans and specifications refen'ed to below, such work to be completed by the date
specified in Paragraph M of the Indenture of Lease. Such work shall include installation of a new
storefront and a complete refurbishment of the interior of the Premises to the extent specified by
Landlord and shall be consistent with Landlord's design criteria, if any. Not later than March 24, 2000,
Tenant shall deliver to Landlord detailed plans and specifications (which shall include cooling and
beating load calculations, electrical panelboard schedules and loads and such other details as may be
required by Landlord's engineer, list of equipment to be used by Tenant, and the design of Tenant's
sign(s), subject to Section 8.1 hereof) prepared by Tenant's licensed architect, disclosing the remodeling
of the Premises. Landlord shall review such plans and specifications and advise Tenant of any changes
required by Landlord; Tenant shall promptly revise such plans and specifications to incorporate
Landlord's required changes and deliver revised plans to Landlord within twenty (20) days after being
advised of Landlord's changes. Landlord may require further changes in such plans and Tenant shall
similarly revise and resubmit the same to Landlord within an additional period of twenty (20) days.
Tenant shall commence such renovations within ten (10) days after Landlord has approved Tenant's
plans and specifications and has turned over possession of the Premises. All such work shall be
promptly commeoced and thereafter continued with due diligence to the cud that it shall be fully
completed and the Premises opened for business in accordance with the provisions hereof not later than
the later of the Commencement Date or the date set forth in Paragraph M of tbe hrdenture of Lease.
Tenant shall perform no work in the Premises until such plans and specifications have been approved by
Landlord. Prior to commencing any new construction, renovafions, alterations, or any other work in the
Premises, Tenant shall cause its general contractor to execute and fi'lc in the Prothonotary's Office for
the County in which the Shopping Center is located a waiver of the right to file mechanics' liens against
the Premises and the Shopping Center in a form approved by Landlord.
(b) All work required under this Section and all other alterations to the Premises performed
by Tenant pursuant to this Lease (including, w thout mitation, any work reouired b Sectio .
collectively referred to as "Tenant's Work." All of Tenant's Work shall ho'o~-- , ~Y - - _n 21 ~3) are
......... umple[ea at lenant s sole
cost aud expense. In performing Tenant's Work, Tenant shall comply with the following requirements:
1. In addition to, and not in lieu of the other policies of insurance required by this
Lease, at ail times between the start and completion of Tenant's Work (such period is herein referred to
as "Tenant's Construction Period"), Tenant, at its own cost and expdnse, shall maintain in effect with a
responsible insurance company, a policy of ail risk builder's risk iosurance in the standard form for the
State where the Shopping Center is located. Said insurance shall covei the full replacement value of all
work done and fixtures and equipment installed or to be installed at the Premises by Tenant, without
coinsurance and with a deductible clause not to exceed Ten Thousand Dollars ($ I 0,000.00).
2. At a,. times during Tenant's Construction .cried, Tenant's contractors and
· subcontractors shall maintain in effect worker's compensation insurance as required by the laws of the
State iu which tile Shopping Center is located.
3. Repair and/or reconstruction of all or any portion of Tenant's Work damaged or
destroyed by any casualty occurring during Tenant's Construction Period shall be commenced by
Tenant as soon as possible after such casualty; provided that if ali or any portion of Landlord's Work is
also damaged or destroyed by such casualty, Landlord shall notify Tenant when repairs or reconstruction
of Landlord's work is substantially completed and, within fifteen (15) days after receipt of such notice,
Tannnt shall diligently pursue such repair and/or reconstruction to completion.
4. Any approval or consent by Landlord of any or all of Tenant's criteria, systems,
plans, specifications or drawings shall neither constitute an assumption of resPonsibility hy Landlord for
any aspect of such criteria, systems, plans, specifications or drawings including, but not limited to, their
accuracy or efficiency nor obligate Landlord in any manner with respect to Tenant's Work and Tenant
shall be solely rasponsi.ble for any deficiency in design or construction of all portions of Tenant's Work.
5. Tenant shall obtain and pay for all necessary permits and shall pay all other fees
required by public authorities or utility companies with respect to Tenant's Work.
6. Tenant shall maintain the Premises and the Common Areas (as defined in Section
1.3) adjoining the same in a clean and orderly condition during construction. Tenant shall promptly
remove all unused construction materials, equipment shipping containers, packaging, debris and waste
from file Shopping Center, and deposit it in receptacles, if any, provided by Landlord or othem, ise
remove the same from the Shopping Center. Tenant shall contain all construction materials, equipment,
fixtures, memhandise, shipping containers and debris within the Premises. Malls, courts, arcades, public
corridors, service corridors m~d the exterior of the building shall be clear of Tenant's equipment,
merchandise, refuse, and debris at all times.
7. To the end that there shall be no labor disputes wbich would interfere witb any
construction occurring in the Shopping Center or the operation thereof, or any part thereof ncluding, but
not limited to, the Premises, in performing any Tanant's Work, Tenant agrees to engage the services of
only sucb contractors or subcontractors as will work in harmony and without causing any labor dispute
with each other, with Landlord's employees, contractors and subcontractors and witb the employees,
contractors and subcontractors of all others working in or upon the Shopping Center or any part thereof,
and Tenant shall require its contractors and subcontractors to employ only such labor as will work in
harmony and without causing any labor dispute with each other, with Landlord's employees, contractors
and subcontractors and with the employees, contractors and subcontractors of all others working ill or
upou the Shopping Center or any part thereof. Furthermore, only those contractors and subcontractors
as have been duly licensed by the authority having jurisdiction over the appropriate profession and
which have been approved in writing by Landlord may perfmm any portion of Tenant's Work for
Tenant in or upon the Premises.
8. At any time and from time to time during tile performance of Tenant's Work,
Landlord, Agent, Landlord's architect and/or Landlord's general contractor may enter upon the Premises
and inspect the work being performed by Tenant, and take such steps as they may deem necessary or
desirable to assure the proper performance by Tenant of Tenant's Work and/or to protect the building
and/or any Premises adjacent to the Premises. In addition, Tenant's Work shall be performed in a
thoroughly first-class and workmanlike mamler, shall incorporate only new or like new materials and
shalI be in good and usable condition at the date of completion.
9. Tenant's Work shall be coordinated with all work being performed or to be
performed by Landlord and other occupants of the Shopping Center to the end tbat Tenant's Work will
not interfere with the operation of the Shopping Center or interfere ';vith Or delay the completion of any
other construction within the Shopping Center, and each such contractor and subcontractor shall comply
witb all procedures and regulations prescribed by Landlord or Agent for integrafion of Tenant's Work
with that to be performed in connection with any construction in the Shopping Center and in com~ection
with the operation of the Shopping Center.
10. Neitber Tenant nor its contractors or subcontractors may use any space withiu tile
Shopping Center (except the Premises) for storage, handling and moving of materials and equipment,
and if Tenant or such contractors and/or subcnntractors shall use any space in the Shopping Center
(except the Premises) for any of the aforesaid purposes without obtaining Landlord's prior written
approval therefor, Landlord shall have the right to tem~inate such use or remove all of Tenant's and such
contractor's or subcontractor's material, equipmant and other property from such space without
Landlord being liable to Tenant and/or such contractors or subcontractors and the cost of such
termioation and/or removal shall be paid by Tenant to Landlord. It shall be Tenant's responsi
I'HII.A I\11499730 070593.000 13 b~
cause each contractor and subcontractor to maintain continuous protection of adjacent property and
· improvements against damage by reason of Tenant's Work. Itt addition, if a barricade, temporary
storefront, lights or guardrail is deemed to be necessary by Landlord, Landlord shall install same and
Tenaut shall reimburse Landlord, on demand, for the cost incurred in Landlord's installation of such
items, or, at Landlord's option, Tenant shall install same at Landlord's re uest and o
by Landlord. q f a design approved
11. Tanaut shall promptly pay all coutractors aud materialmen so as to minimize the
possibility ora lien or claim of lien being filed with respect to the Premises or the Shopping Ceuter, and
should any such lien be made or filed, Tenant shall cause the same to be discharged by bond or
otherwise within ten (10) days after written request by Landlord. If Tenant shall fail to cause such lien
or claim of lien to be bonded against or to be discharged within the period aforesaid, then, in addition to
any other right or remedy which Landlord may have under this Lease, at law or in equity, Landlord may,
but shall not be obligated to, discharge the same either by paying the anmunt claimed to be due or by
procuring the discharge of such lien or claim of lien by deposit or by bondiog proceedings, and in any
such event, Landlord shall be entitled, if Landlord so elects, to compel the prosecution of any action for
the foreclosure of such hen or claim of lien by the lianor with iuterest costs and expenses. Any amount
so paid by Landlord and all costs and expenses incurred by ~Landiord in connection therewith or in
cmu~ectioo with insuring the title to the Shopping Center or any interest herein free of such lien or claim
of lien, together with a late charge thereon at the rate set forth in Section 2.6, fi-om the respective dates
of Lm~_d ord's making of the payment and incurring of the cost and expense, shall constitute Additional
Reni payable by Tenant under this Lease and shall be paid by Teuaut to Landlord on demand.
(c) Within ten (10) days after initially opening the Premises for business with the public,
Tanant shall supply to Landlord the following:
I. An executed and acknowledged release of mechanic's llans with respect to the
Premises executed by Tenant's general contractor and by every subcontractor and supplier of labor
and/or materials engaged in Tenant's Work.
2. Proparly issued certificates evidencing acceptance or a ·
appropriate governmental authorities ' .4 ~ ,~ , , pproval of the Prem scs b
installation and electrical system. ,- -*,~,mt s sprumler
3. A set of as-built plans and specifications for Tenant's Work prepared and sealed
by Teuant's architect, together with names and addresses of Tenant's electrical, plumbing, and other
contractors.
(d) Nothing in this Lease shall be construed as in any way coustituting a consent or request
by Land!oral, expressed or implied, by inference or otherwise, to any coutractor, subcontractor, laborer,
or mater]raimon for the performance of any abor or the furnishing of any materials for any specific or
general ~mprovement, alteration, or repair of or to the Premises or to any buildings or improvements
thereon, or to any part thereof. Notwithstanding any~rhing in this Lease, or in any other writing signed
by Landlord to the contrary, neither this Lease nor any other writing signed by Landlord shall be
coustmed as evidenciug, indicating, or causing an appearance that any erection, construction, alteration
or repair to be doue, or caused to be done, by Tanant is or was in fact for the immediate use and benefit
of Landlord. Tenant covenants and agrees that Tenant shall bare no right, authority or power to bind
Landlord, or any interest of Landlord in the Premises or Shoppiug Center, for any claim for labor
materials or for any other charge or expense incurred in comiection with the construction of any
improvements on the Premises or Shopping Center, and Tenant further covenants and agrees that no
liens or claims of whatever nature, including without limitation, liens or claims for labor performed on,
or materials delivered to or stored at the Premises or Shopping Center, will attach to the Premises or
Sfiopping Center.
SECTION 4.3 Roof, Walls, Changes and Additions to Shopping Center
(a). Landlord herel~y reserves the exc usive right at any.time and from time to time to use all
or a ~y prat of the roof, extermr wa s and air space above the finished eetling of the Premises for auy
pm'pose; to erect scaffolds, protective barriers or other aids to construction on, around and about the
exterior of the Premises, provided that access and visibility to the Premises shall not be substantially
deuied. Laudlord also reserves the right after written notice to Tanant to enter the Premises (except that
in the event of an emergency, no notice shall be required), at any time and from t/me to time to make
such repairs, additious or alteratious as it may deem necessary or desirable to the Premises, to the
building in wlficb the Prernises is contained, or the Shopping Center in general; to shore the foundations
m.~d/or walls thereof and/or to install, maintain, use, repair, inspect and replace foundations, columns,
p~pes, ducts, conduits and wires leading through or located adjacent to the Premises and serving other
parts ofthe Shopping Center. Landlord shall use reasonable efforts to install such pipes, duets, conduits
Pill LA I \l 149973\2 070593.000 14
or wires in the space above , .nant's fimshed cci lng (or if Tenant doe~ not have a finished ceiling, then
· in the space above the height where, in LandIord's opinion, a finished ceiling would otherwise exist), or
another location which does not materially interfere with Tenant's use of the Premises. Landlord's
rights hereunder may be exercised by Landlord's designee. Tenant shall not remove or tamper with any
such pipes or other apparatus installed by Landlord.
(b) Landlord hereby reserves the right at any time to make alterations or additions to, and to
build ~dd lionel stories on, and to build any adjoining buildings in the Shopping Center, including the
building in which the Premises are contained, and to construct other buildings or improvements in the
Shopping Center and Tenant shall have no interest of any kind whatsoever in tile said additions or
additional stories or adjoining buildings. Landlord also reserves the right to reduce or enlarge tbe area
of the Shopping Center by excluding portions of the ground therefrom or adding additional ground
thereto from time to time, and whether or not so reduced or enlarged, to constract multi-deck elevated or
subterranean parking facilities.
(c) If any excavation shall be made or authorized to be made upon land adjacent to the
Premises, Tenant shall ~.fford to the person causing or authorized to cause such excavation Iicense to
enter upon the Premises for the purpose of doing such work as Landlord shall deem necessary to
preserve the wall or the building of which the Premises form a part from injury or damage and to
support the same by proper foundations, without any claim for damages or indemnification against
Landlord or diminution or abatement of rent.
(d) Landlord reserves the right to install heating, air-confiitiouing, ventilating equipment,
kiosks, fountains, bencbes, seating arrangements, promotional activities, seasonal displays, temporary
stores, amusement devices and other amenities in certain portions of the Common Areas selected by
Landlord from time to time, all of which shall be done at Laodlord's sole cost and expense and xvithout
any approval and consent of Tenant.
(e) Tenant acknowledges that Landlord's impIementation of its rights set forth in Section 4.3
may interfere with access to or visibility of the Premises or the availability of certain parking areas and
Common Areas and Tenant agrees that the exercise of any such rights shall not constitute any grounds
for an abatement of any rent hereunder or be deemed an eviction or disturbance of Tenant's use and
possessinn of the Premises nor shall the same render Landlord liable in any manner to Tenant for any
incnnvenience, disturbance, loss of business or any other occurrence arising from file exercise of any
such rights.
SECTION 4.4 Right to Change Shopping Center and Relocate Tenant; Early Terminatiou
(a) The purpose of the plan hereto annexed as Exhibit "A" is solely to show tile approximate
location of the Premises and the present layout of the Shopping Center, but Landlord does not warrant or
represent to Tenant that the Shopping Center will continue to be improved as shown tbereon. Landlord
hereby reserves the right at any time and from time to time to make changes or revisions in such plan
and the Shopping Center, including but not limited to, additions to, subtractions from, and/or relocations
or rearrangements of, the building, parking areas, and other Connalon Areas shown oil such plan.
(b) Notwithstanding anything to the contrary contained in this Lease, in connection with any
expansion, enlargement or rearrangement of the Shopping Center or any aspect thereof, Landlord shall
have the right on one or more occasions to require that Tenant relocate from the Premises to a locatinn
designated by Landlord ( Relocated Prem scs ) which shall contain approximately the same number of
square feet as currently contained within the Premises, such relocation to be implemented in accordance
with the terms and conditions set forth below. Landlord shall advise Tenant in writing as to tile location
of the Relocated Premises and the date by which Landlord will require that Tenant complete such
relocation. Within thirty (30) days after receipt by Tenant of Landlord's notice, Tenant shall advise
Landlord in writing whether Tenant agrees to relocate to the Relocated Premises in accordance with the
provisions hereof. In the event Tenant fails to notify Landlord that Tenant will relocate within the
aforesaid time fi'ame, or fails to notify Landlord of its deeisiou with respect to such relocation, or Tenant
refuses ~o relocate, then at any time thereafter Landlord may cancel this Lease upon ninety (90) days
prior written nntice to Tenant, in which event this Lease will expire on such date as thnngh the date set
forth itl the letter of cancellation was fixed as the expiration date hereof, and Landlord shall have no
liability to Tenant as a result of such cancellation, If Tenant agrees to so relocate, after notice from
Landlord to do so, Tenant shall, at its sole cost and expense ("Relocation Costs"), cnnnnence and
diligently proceed to completion all work required to make the R~located Premises suitable for Tenant's
busiuess, physically relocate to such Relocated Premises and commence business therein not later than
the date specified in Landlord's notice to Tenant which date shall not be less than thirty (30) days fi'om
tile date of said notice, and Laudlord shall reimburse Tenant for its Relocation Costs an amount equal to
the unamortized portion of Tenant's Work, exclusive of equipment, removable trade fixtures, fumiture,
merchandise aud other re-usable items plus reasonable cost aud expenses of relocating. Prior.~'
PIJILA I\114'3973/2 070593.000 15
performing such work, Tena,~t shall submit to Landlord for approval tile plans referred to in Section 4.2
· disclosh3g all of Tenant's Work to be performed in the Relocated Premises and no such work shall
comnmnce until such plans have been approved by Landlord. In any event, not later than the date
specified for the completion of such move, and whether or not Tenant shall have commenced business m
the Relocated Premises, Tenant shall vacate tbe Premises and peaceably surrender possession thereof to
Landlord in accordance with the provisions hereof. Commencing as of the last day by which such
relocation must be accomplished, or if sooner, the day Tenant comn3ances business in th~ Relocated
Premises, all of Tenant's right, title and interest in and to thc Premises shall cease and temfinate aud
from and after such date the Relocated Premises shall be deemed demised hereunder in lien of tbe
Premises. At the request of Landlord, the parties shall enter into an amendment to this Lease which
shall confirm the area and size of the Relocated Premises. The Fixed Minin3um Rent and Percentage
Rent Gross Sales Base shall be amended automatically to bear the same relationship to the Fixed
Minimum Rent and Percentage Rent Gross Sales Base presently set forth in the Lease as the existing
area of the Premises bears to the area of the Relocated Premises.
(c) Notwithstanding anything contained herein or iii this Lease to the contrary, in the event
Landlord desires to ente;r into a lease (a "Major Tenant Lease") with a "Major Tenant" (as hereinafter
defined) and, as a condition of such Major Tenant Lease, the Laadlord is required to grant an exclusive
to such Major Tenant which prohibits the sale of any of Tenant's permitted use items set forth io
Paragraph E of the Indenture of Lcase, then and in such event, Landlord shall have the right to tem~inate
this Lease on the date (the "Early Termination Date") whicl~ shall be ninety (90) days after written
notice thereof from Landlord. Tenant shall surrender the Premises to Landlord as reqtdred by the terms
o(this Lc}se on or before the Ear!y Termination Date.. If Landlord exercises its right to terminate u lder
this paragraph, Landlord shall reimburse Tenant for Its reasonable, out-of-pocket costs of moving its
equipment, removable trade fixtures, furniture, merchandise and other re-usable items to another
location not more than five (5) miles from the Shopping Center plus tlie i. mamortized portion of Tenant's
Work, exclusive of equipment, removable trade fixtures, furniture, mercbandise and other re-usable
items.
ARTICLE 5
CONDUCT OF BUSINESS
SECTION 5.1 Use of Premises
(a) Except as otherwise specifically provided herein, commencing on the Commencement
Date and thereafter for the balance of the Term, Tenant shall continuously occupy and use tile Premises
solely for conducting the business specified in the Indenture of Lease as the permitted use, m~d Tenant
will not use or pen'nit or suffer the use of the Premises for any oilier business or purpose and shall not
be, or in any manner appear as, a discount, off-price or manufacturer's outlet type of operation or
business. Landlord would not have ~ntered into the Lease but for
operate in the Premises as above said, nd Tenant s fmlure to continuously operate as above said shall be
a , . . Tenant's covenant to continuously
deemed a material breach of the Lease. In addition, Tenant agrees that Tenant shall not operate or cause
or peixnit to be operated any cate ogue, ma 1, or telephone order sales in or from the Premises excep the
incidental sale of merchandise which Tenant is permitted to sell over tle counter to customers in the
Premises pursuant to the permitted use set forth in the Indenture of Lease, nor shall Tenant divert
elsewhere any business which would ordinarily be transacted by Tenant at, in, on or from the Premises.
The authorization of the use of the Premises for the business purposes set forth in the Indenture of Lease
does not constitute a representation or warranty by Landlord that any particular use of the Premises is
now or will continue to be permitted under applicable laws or regulations.
(b) Teoant shall not permit, allow or cause any of the following to be conducted in thc
Premises: any public or private auction, or any sale which would indicate to the public that Tenant is
bankrupt, is going Out of business, or has lost its Lease. Tenant shall not use or pe~zait any use of the
Premises, except in a manner consistent with the general high standards of merchandising in the
Shopping Center, nor shall Tenant's advertising indicate or imply that Tenant is operating its business in
a manner which is not consistent with the general high standards of merchandising in the Shopping
Center. Nothing contained in this Section 5.1(b) shall affect or is intended to affect Tenant's pricing
policies.
(c) Notwithstanding anything contained herein to the cnntrary, including Paragraph E of the
Indenture of Lease captioned "Use of Prelnises", Tenant is specifically prohibited from selling or
distributing tobacco "papers", pipes of the type and nature commonly associated with the smoking of
I. narijuana (e.g. "water pipes"), ' ·
"roach clips", cocmne "spoons" and all other types of smoker's novelty
ttems, inaterials or paraphernalia wllicll are or may reasonably be construed to be, intended for use in
connection with narcotics or other unlawful substances.
PI II LA I \1149973~2 070593 000 1 6 ~
(d) Because the ddequacy of the rental hereunder depends upon Tenant's Gross Sales
· whether or not Percantage Rent is payable hereuuder, Tenant agrees that conunencing with tile
Commencement Date and thereafter throughout the Term, Tenaut will continuously, actively and
diligently operate or cause the permitted business to be operated in good faith and in an efficient,
businesslike and respectable manner, maintaining in the Premises a full staff of employees and a full
stock of seasonable merchandise of the quality, kind, type and breadth which Tenant usually soils, and
employing Tenant's best continual efforts and abilities to the end that the maximum profitable Gross
Sales which can reasonably be produced from the Premises shall be produced.
(e) Throughout the Term, Tenant shall cause its store to remain open each day of the week
during the hours set forth in Paragraph F of the Indenture of Lease. Tenant agrees that the houm duriug
which Tenant is obligated to operate may be changed by Landlord from time to time provided that
Landlord will not act in a discriminatory manner.
(f) Tenant shall operate and/or advertise the business operated at or from tile Premises only
under the name set forth in the first page of the Indenture of Lease, unless and until the use of another
name is permitted in writing, by Landlord. Tenant represents that it is entitled to use said name pursuant
to all applicable laws. Tenant shall not have seating for more than ten (10) persons inside the Premises,
exclusive of the seating permitted outside the Premises pursuant to this subsection. Tenant may utilize a
portion of the Common Areas for the placemant of small tables and chairs to be used by its customers,
provided Tenant shall have obtained all permits and approvals required by all local governmental
authorities. The portion of the Common Areas that Tenant is permitted to place small tables and chairs
is limited to the area outlined and labeled as "Pemlitted Outside Seating Area" on Exhibit "G" and
limited to seating for not more than twelve (I2) persons, exclusive of the seating permitted inside the
Premises pursuant to this subsection and subject to Landlord's right to reasonably modify this
requirement. Tenant's selection of the sm~ll tables and chairs is subject to Landlord's prior approval.
enants use of the Poma tied Outside Seating Area is subject to the Landlord's roles and regulations and
such other requiremems of the Landlord and all applicable governmeutal and quasi-governmeutal laws,
ordinances and regulations. Tenant shall cause its liability insurance policy maintained hereunder to
cover damages, losses and claims arising out of the use by Tenant of the Permitted Common Area
Seating. Tenant shall be solely responsible at its expense to keep and maintain the Permitted Common
Area Seating itl a neat and orderly conditinn, including routine pick-up of litter, garbage or other refuse.
SECTION 5.2 Storage
Tenant shall warehouse, store and/or stock in the Premises only such goods, wares and
merchandise as Tenant is permitted and intends to offer for sale at retail in, at or from the Premises.
This shall not preclude occasional transfers of merchandise to other stores of Tenant, if any, not located
within the Shopping Center. Any goods, wares, merchandise, equipment or other property which are
stored by Tenant other than within the Promises are stored at Tenant's sole risk and Landlord shall not
be liable to Tenant in any manner whatsoever for any loss, whether or not the result of Landlord's
negligence or the negligence of any of its employees, servants, agents or workmen.
SECTION 5.3 Additional Use of the Premises
Tenant covenants and agrees that Tenant at its own cost and expense:
(a) Will keep all exterior and interior store front surfaces clean and will maintain the rest of
the Premises and all corridors and loading areas immediately adjoining the Premises in a clean and
orderly condition and free of insects, rodents, vermin and other pests;
(b) Will not permit accumulation of any refuse, but will remove the same and keep such
refuse ill odor-proof, rat-proof containers within the interior of the Premises shielded from the view of
the geueral public until removed and will not bum any refuse whatsoever but will cause all such refuse
to be ·
removed by such person or compantes, including Landlord, as may be designated in writing by
Landlord and will pay all charges therefor;
(c) Will replace promptly with glass of a like kind and quality any plate glass or window
glass of the Premises which may become cracked or broken;
(d) Will not, without Landlord's -rior written
other mlicles in any vestibule or entry of the Premises or w thin two (2) fee of any entrance fi'om the
Premises to the enclosed mai, on the footwa ks adjacant thereto or elsewhere on the exterior thereof;
(e) Will not use or permit the use of any apparatus for sound reproduction or transmission, or
any nmsical instrument, ill such manner that the sound so reproduced, transmitted or produced shall be
audible beyond tile ccmlines of tile Premises, and will not use any other advertising medium, inc
PIHLAIl1149973U 070593000 1 7
xvithoat limitation, flashing, btus or search lights which may be he,~,d or expehenced outside of the
· Premis.es;
(f) Will keep all mechanical apparatus free of vibration and noise which may be transmitted
beyond the confines of the Premises;
Premises
Will not cause or pennit objectionable odors to emanate or be dispelled from the
(h) Will not solicit business, distribute handbills or other advertising matter or hold
demonstrations in the parking areas or other Common Areas;
(i) Will not permit the parking of delivery vehicles so as to interfere with the use of any
driveway, walk, parking area, or other Common Areas in the Shopping Center;
(J) Will comply and will cause compliance with all present and filture statutes, laws, roles,
regulations, guide fines, .orders, ordinances, directives and other requiremeuts of applicable federal, state
and local governmental authorities, commissions, boards and agencies and all present and future
requirements of common law; with respect to (0 Tenant's obligations uuder this Lease. (n) the Premises,
(iii) Tenant's use of the Premises and Shopping Center, (iv) any work to be performed iii the Prenfises
by Tenant, (v) the Americans with Disabilities Act of 1990 as it relates to the Premises and (vi) the
eumroument, subject to the terms of Section 21.23 herein, including, without limitation, those relating to
the generation, use, handling, treatment, storage, transportation, release, emission, disposal, Remediation
or presence of any material, substance, liquid, effluent or product, including, without limitation,
?zardous substances ,,hazardous waste or Hazardous Materials (herein collectiv
Environmenta Statutes ) Tenant shal i- ~ .:~'- - . ely called
· · ., ,~ ~m~y mannar secure and keep in full force and effect all
pernuts, licenses iud approvals required for the Premises and Tenant's use thereof and Tenaut shall
make and file all notifications and registrations as required by Environmental Statutes. Tenant shall at
ail times comply with the terms and conditions of any such permits, licenses, approvals, notifications
and registrations. In addition, Tenant shall also comply with all recommeudations of the Factory Mntual
Insurance Companies, the Insurance Services Organization, or other sinfilar body establishing standards
for all risk insurance ratings with respect to the use or occupancy of the Prenfises by Tenant, and will
participate in periodic fire brigade instruction and drills at the request of Landlord and will supply,
maiutain, repair and replace for the Premises any fire extiuguishers or other fire prevention equipment
and safety equipment (including installation of approved hoods and ducts if cooking activity is
conducted on the Premises) required by the aforementioned roles, regulations and Insurauce Services
Organization or other body in order to obtain insurance at the lowest available premium rate throughout
the Term;
(k) Will not receive or ship articles of any kind except through the facilities provided for that
purpose by Laudlord and will not permit any delivery of goods, supplies, marchandise, or fixtures to or
from the Premises to be made through any of the enclosed malls uuless the Premises has no entrance
other than on such a lnall, in which latter case Tenant shall use its best efforts to schedule such deliveries
outside Shopping Center business hours, except with Landlord's approval in emergency situations;
(1) Will light the show windows of the Premises and exterior signs each day of the year to
the extent which shall be required by Landlord but in no event later than one hour after the close of the
Shopping Center;
(m) Will keep all outside areas immediately adjoiniug the Premises including, but not limited
to, sidewalks and loading docks free fromice and snow, and Tanant hereby agrees that Teuant is solely
liable for any accidents occurring on said outside areas due or alleged to be due to any accumulation of
ice iud snow;
(n) Will refer to the name of the Shopping Center in all advertising done to promote saIes at
its store or stores in the geographical area in which the Shopping Center is located. In advertising its
business in the Premises, Tenant shall have the right to use the name and logo of the Shopping Center,
but Tanant shall not sell any goods, war,e,s or merchandise bearing such name or logo without the pr or
written consent of Landlord. Landlord s permission to use all or part of the name identifying the
Shopping Center during the Term shall not be construed as permission to contiuue such use after such
lem~ination of the Lease or regarding locations other than the Premises, and Tenant agrees that such
name or other identification of it or its business with the Shopping Center shall not be used after the
termiuatiou of the Lease or regarding a location other than the Premises. In all Iocal and regional
advertisiug, in the event that Tenant specifies the location of any specific store it shall also specify, by
Shopping Ceuter name, the Premises.
(o) Will not use the plumbing facilities for any other purpose thau that for which they are
const!q.lcled and will not permit any foreign substance ofaly kind to be thrown therein and the expe
of repairing any breakage, , -,ppage, seepage or damage, whether ,..,:un'lng on or off the Premises,
resulti~g from a violation of this provision y Tenant or Tenant s employees, agents or lnv~tees shall be
borne.by Tenant. All grease traps and other plumbing traps shall be kept clean and operabIe by Tenant
at Tenant's own cost and expense. Tenant shall keep the floor of the Premises and ali penetrations
thereof properly sealed and caulked so that water or other substances in use in the Premises shall not
leak from the Premises to any Common Area or adjoining stores or stores located belmv the Premises;
(p) Will not permit any sbopping carts in the Common Areas cyan if taken there by
(q) Will not place or cause or permit to be placed within tile Premises, pay telephones,
vanding machines (except those for the exclusive se of Tenant s employees wh eh are not visible to the
public) or amusement devices of any kind without the prior written consent of Landlord.
SECTION 5.4 Rules and Regulations
(a) Landlord reserves the right from time to time to adopt and promulgate reasonable rules
and regulations applicable to the Premises and the Shopping Center which do not discriminate among
the non-department store tenants, and to amend and supplement such rules and regulations. Notice of
such rules and regulations and of any amendment and supplements thereto shall be given to Tenant and
Tenant agrees thereupon to comply with and observe all such rules and regulations. To the extent
practicable, the same shall be applied uniformly to substantially all non-department store retail tenants
of the Shopping Center.
(b) Landlord's rights and remedies in the event Tenant shall fail to comply with and observe
such rules and regulations shall be the same as though such roles and regulations were set forth in
Section 5.3 of this Lease.
SECTION 5.5 Competition
Tenant acknowledges that Landlord's obtaining a fair and equitable rental depends upon Tenant
concentrating all of its business efforts within the geographical area in which the Shopping Center is
located, upon Tenant's business at the Premises ao as to maximize Tenant's Gross Sales, and Tanant
furtlmr acknowledges that any activity by Tenant within such geographical area in operating or
participating in the operating ora similar or competing business must necessarily have an adverse effect
on the volume of Gross Sales by Tenant at the Premises to the detriment of Landlord and will deprive
Landlord of the fair rental to which the par~ies agreed. Accordingly, in the event that during the Tem~
either Tenant or Tenant's management, or any person or entity controlled by Tenant or controlling
Tenant, or controlled by the same person or entity or persons or entities who control Tenant, directly or
iudireetly owns, operates, is employed in, directs or serves any otl~e~ place of business, the sanae, or
similar to, or competitive with, Tenant's business as set forth herein, within a radius of five (5) miles
from the outside boundary of the Shopping Center, which distance shall be measured in a straight Ithe
without reference to road mileage, than Landlord may either (i) cancel this Lease upon thirty (30) days
prior written notice to Tenant, (ii) include the Gross Sales of any such other place of business in the
Gross Sales made from the Premises to determine the Percentage Rent due under this Lease, as fully as
though such Gross Sales had actually been made from the Premises, or (iii) increase the annual amouut
of Fixed Mthimum Rent payable thereafter, and each component thereof if the Fixed Minimum Rent is
otherwise subject to increase, by an amount equal to the highest Percentage Rent payable by Tenant in
any calandar year prior to the opening of such other business. In the event Laudlord so elects, all of the
provisions of Article 2 hereof shall be applicable to the Gross Sales of, and ail the books and records
pertaining to, snub competing store.
SECTION 5.6 Parking Facilities
Tenant and its employees shall park their cars only in those portions of the parkthg area
designated for that purpose by Landlord and Tenant shall notify its employees of the requirement that
they abide by this policy. Tenant shall furnish Landlord with automobile licanse numbers assigned to
Tenant's car or cars and cars of its employees within ten (I0) days of a request therefor and shall
thereafter notify Landlord of any changes within ten (10) days after such changes occur. In the event
that Tenant or its eluployeas park their cars in areas other than such designated parkiug areas, than
Landlord afl, er giving notice to Tenant of such violation shall have tile right to charge Tenant Twenty-
Five Dollars ($25.00) per day per car parked in any areas other than those designated.
19
ARTICLE 6
GRANT OF CONCESSIONS
SECTION 6.1 Condition to Grant
The provisiou against subletting elsewhere contained in this Lease shall be applicable so as to
prohibit Tanant from granting concessions without the consent of Landlord for the operation of Olio or
more departments of the business of Tenant, and any grant of concessions consented to by Landlord
shall be subject to the conditions that (i) each such concession which may be granted by Tenant shall be
subject to all the terms and provisions of this Lease; (ii) the Gross Sales from the operation of each such
concassion shall be deemed to be a part of the Gross Sales of Tenant for the purpose of detemfining the
Percentage Rent payable to Landlord; (iii) all of the provisions hereunder applying to the business of
Teuant including, but not limited to, the provisions of Article 2 shall apply to each such concession; (ix,)
unless otherwise approved in writing by Landlord, such departmant or departments shall be operated
only as part of the business operation generally couducted by Teuant on the Premises and uuder the
advertised name of Tenant; and (v) at least seventy-five percent (75%) of the sales floor area of the
Premises shall at all times be operated directly by Tenant.
ARTICLE 7
SECTION 7.1 Control
COMMON AREAS
All Common Areas in or about the Shopping Center shall be subject to the exclusive control of
Landlord. Landlord shall operate, manage, equip, police, light, surface and maintain the Common Areas
all in such manner as Landlord, in its sole discretion, may, from time to time determine (including
withnnt limitation, the right to keep any enclosed Shopping Center open only during tile hours
designated by Landlord) and Landlord shall have the sole right and exclusive authority to employ and
discharge all personnel with respect thereto. Landlord hereby expressly reserves the right from time to
time to construct, maintaiu and operate lighting and other facilities, equipmcot and signs on ali of the
Common Areas; to police and maintain security for the Common Areas; to use and allow others to use
the Cnnlmon Areas for any purpose; to change the size, area, level, locatiou and an-angement of the
Common Areas; to build multistory and/or subterranean parking facilities; to regulate parking by tenants
and other occupants of the Shopping Center and their respective employees, agents, subtenants,
concessionaires and licensees; to enforce parking charges (by operation of meters, or otherwise) with
appropriate provisions for parking ticket validatinn for tenants; to close temporarily, ail or any portion of
the Co~nmnn Areas for the purpose of making repairs, changes or alterations thereto or performing
uecessary maintenance in connection with any emergency, in commction with closings resulting from
adverse weather conditions or for any other purpose whatsoever, whether such purpose is similar or
dissimilar to the foregoing; to discourage non-cnstomer parking; to establish, modify and enforce
reasonable roles and regulations with respect to the Common Areas and the use to be made thereo£ For
the Term, Tenant is hereby given the license in common with all others to whom Landlord has or may
hereafter grant rights to use the Common Areas as they may from time to time exist; provided, however,
that if such license shall be revoked at any time, in whole or in part, or the size, area, level, location or
arrangement of such Common Areas or the type of facilities at any time forming a part fl~ereof be
changed, altered, rearranged or diminished, Landlord shall not be subject to any liability therefor, nnr
shall Tenant be entitled to any compensation or diminution or abatement of rent therefor, nor shall such
alteration, remTangement, revocation, change or diminution of such Common Areas be deemed a
~oOnStructive or actual eviction or otherwise be grounds for terminating or modifying this Lease. In order
establish that the Shopping Center or any portion thereof is and will continue to remain private
property and to prevent a dedication thereof or the accrual of any rights to any person or to the public
therenn, Landlord hereby reserves the unrestricted right, in Landlord's sole reasonable discretion, to
close all or any portion of tile Common Areas to such extent as, in the opinion of the Landlord's
counsel, may be legally sufficient to prevent such dedication thereof or accrual of any rights to any
persnn or the public therenn; provided, however, Landlord reserves the right at any time and fi'om thne
to time to dedicate to public use part or all of the ring roads, access roads, drives and utility liuas,
together with ail easements required to effectuate such dedications, as it may see fit.
SECTION 7.2 Operating Costs
Laudlord (subject to reimbursement as set forth in Section 7.3) at its expense will operate and
maintain or cause to be operated and maintained the Common Areas aud the Shopping Center. ~ For the
purposes of this Lease, "Operating Costs" shall be those costs of operating, repairing, managing,
lnaintaining, aad replacing the Common Areas and the Shopping Center of which the Premi
pa~, in a manner dee ned by Landlord o be reasonable and annronriate inc
costs and expenses, whether pended or incurred of operating, repai,_..g, replacing, lighting, cleaning,
· painting, and Inaintaining (including, but not limited to, preventive maintenance) such Conunon Areas
and the Shopping Center and insuring the same (and all costs related to said coverage) witb such policies
and companies and in such limits as selected by Landlord (including, but not limited to, all risk property
insurance, liability insurance covering personal injury, deaths and property damage with a personal
injury endorsement covering false arrest, detention or inaprisolzment, maficious prosecution, libel and
slander, and wrongful entry or eviction, worker's compensation insurance, plate glass insurance,
contractual liability insurance and fidelity bonds but excluding the insurauce referred to in Section 7 4
hereof); removing s~ow, ice, rubbish and debris; inspecting, policing, providing security and regulating
traffic; rental of sweepers, trucks and other equipment; depreciation (over a period not exceeding sixty
(60) months) of maclfinery and equipment and other non real estate assets used in the operation and
maintenance of the Shopping Center; maintaining, repairing aud/m- replacing of paving, roofs, curbs,
walkways, landscaping, drainage, on-site water lilies, sanitary sewer lines, storm water lines, Common
Area heating, ventilating and air-conditioning systems, floors, floor coverings, canopies, skylights,
fountains, escalators, electrical lines and other equipment serving the property on which the Shopping
Canter or any part thereof is constructed; heating, ventilating and air-conditioning enclosed Connnnn
Areas at the same rate L,~ndlord charges to tenants; uniforms and replacement of uniforms; the rental of
music programs, services and loudspeaker systems including the furnishing of electricity therefor; all
costs incurred by Landlord in compliance with any environmental or other similar laxvs, rules,
regtdafions, guidelines or orders, including the cost of removing Hazardous Materials from the Shopping
Center; the cost of obtaining and operating public transportation or shuttle bus systems used in
counection with bringing customers to the Shopping Center; stonnwater management facilities; tile
gross compensation and fringe benefits of the Sbopping Center manager, the Shopping Canter office
personnel and all other on-site personnel required to supervise and accomplish the foregoing and all
administrative charge equal to fifteen (15%) per cent of the total of all Operating Costs (exclusive of
such administrative charge)· Operating Costs shall not include depreciation other than as specifically
referred to above· In the event of any dispute as to whether an item represents an expeuse or a capital
item, Landlord's accounting practices shall be determinative and binding or_ tlle parties.
SECTION 7.3 Refinbursement of Landlord
(a) For eacb Accounting Period during the Original Term, Tenant shall pay to Landlord, as
Additional Rent, as Tenant's share of the Operating Costs, a stun equal to the product obtained by
multiplying (1) tbe total Operating Costs for such Accannting Period less all contributions thereto
actually made by occupants of any Excluded Areas by (2) a fraction, the uumerator of which sllall be the
square feet of floor area of the Premises, and tbe denominator of wlfich shall be the average of the total
amount of square feet of leasable floor area in the Shopping Center itl effect on the last day of each
calendar quarter in the Term.
(b) On the first day of each calendar month during that portion of the Term falling witbiu the
first Accounting Period during the Original Term Tenant shall pay to Landlord, in advance, withant
demand and without any setoff or deduction, as an esfimated payment ou account f Tenant s share of
tile Operating Costs an amount equal to one-twelfth (I/12th) of the sum obtained by multiplying the
square feet of floor area of the Premises by the minimum am~ual chm'ge per square foot set forth in
Paragraph I of the Indenture of Lease. If the Commencement Date hereofsball not be the first day ora
caleudar montb, Tenant's payment of its proportionate sbare of Operating Costs for the fractional month
between the Commencement Date and the first day of the first fulI calendar month in the Term shall be
prorated on a per diem basis (calculated on a thirty (30) day month) and shall be paid together with the
first paymeut of Fixed Minbnum Rent.
(c) After the first Accounting Period, Tenant shall continue to pay such estimated amount of
Tenant's proportionate share of Operating Costs on the first day of each month in advance without
dan~and and without any setoff or deduction, but the aforesaid estimated amount of Tenant's share of
Operating Costs may be adjusted and revised by Landlord after the end of each Accounting Period
during the Term on the basis of the projected Operating Costs for the subject Accounting Period, within
Landlord's reasonable business judgment. Upon Landlord furnishing to Tanaot a statement setting fortb
such revised estimated Operating Costs, Tenant shall pay to Landlord such revised estimated share in
equal monthly instalhneuts, each such installment to be a sum equal to one-twelfth (1/12th) of such
revised estimated Operating Costs, in advance on the first day of each calendar month thereafter until
the oext succeeding revision in such estimate.
(d) Following the end of each Accouuting Period, Landlord shall fumisb to Tenant a written
statement, in reasonable detail covering the Accounting Period just expired showing tile total Operating
Costs for anch Accounting Period, tbe amount of Tenant's share thereof and payments made by Tenant
with respect thereto. Ail subsequent monthly payments on accouot of Tenant's share of Operating Costs
made by Tenant during such Accounting Period after receipt of such statement shal be pplied by
Landlord as payment on account of Tenant's obligation for its share of Operating Costs foa~ file ne~"'~
Hill. AlU 149~73~2 070593.000 2
ensuing Accounfing Period mhd shall not reduce Tenant's obligation to pay tile balance due Landlord
· pursua~t to such statement. Ill making the computations as aforesaid, Landlord's statemant shalI be
prima'facie evidence of Operating Costs.
(e) If Tenant's share of Operating Costs exceeds Tenant's payments with respect to any
Accounting Period, Tenant shall pay to Landlord the deficiency within thirty (30) days after the date of
the furnishing of the statement from Landlord; if Tenant's payments exceed Tanant's share of the
Operating Costs Landlord shall credit such excess to Tenant within thirty (30) days and Lahdlord may
elect to apply such exgess to any indebtedness to Landlord. If such overpayment is for the last
Accounting Period, Landlord shall retired such excess to Tenant within thirty (30) days to the extent
Tenant is not indebted to Landlord and provided Tenant has fully performed all of its obligations under
this Lease and has vacated the Premises in accordance with the provisions hereof. In the event Tenant is
indebted to Landlord for any reason whatsoever, Landlord may deduct such amount owed from such
oveipayment.
(f) If the Original Term commences or terminates (otber than by reason of Tanant's default)
during an Accounting Pbriod, Tenant's obligation for Tanant's proportionate share of Operating Costs
for such Accounting Period shall be equitably prorated.
SECTION 7.4 Proportionate Insurance
For each Accounting Period or portion thereof in the Original Term, Tenant shall pay to
Landlord, as Additional Rent, as Tenant's share of the cost of Landlord's policy or policies of all risk
property insuranee insuring the Shopping Center (in addition to the costs relating to the Common Areas
as set forth in Section 7.2) and Landlord shall bill Tenant for same as a component of the Operating
Costs as more particularly set forth in Sections 7.2 and 7.3 hereof.
ARTICLE 8
SIGNS; AWNINGS; CANOPIES; FIXTURES; ALTERATIONS
SECTION 8.1 Sigus, Awnings and Canopies
(a) Tenant shall not place or maintain or suffer to be placed or maintained on the exterior of
the Premises or on the glass of any window or door of the Premises which sba be visible from the
exterior thereof or within ttn-ee (3) feet of any such glass (other than neatly lettered signs of reasonable
size placed on the floor of the display window identifying articles offered for sale and the price thereo0
any sign, awning, canopy, decoration, ettering, advertising matter or ali · .
instance first obtainin~ Landlord's ,q. ........ , .~. . . ~ y other thing w~thout m each
· ~ w.,,,,.,, al.,t.,uvnI mereor; anu lenant further agrees to design and to
maintain such sign, decoration, lettering, advert/sing matter or other thing as may be approved ia good
condition and repair at all times in compliance with the requiremems
hereto, made part hereof and marked Exh bit ,,B,,. of the S'gn Regulations" attached
(b) Tenant shall not paint or decorate any part of the exterior of the Premises, or any part of
the Premises which shall be visible from the exterior thereof, without first obtainiug Landlord's written
approval of such painting or decoration.
(c) Tenant shall install and maintain at all times, subject to the other provisions of this
Section, displays of seasonable memhandise in the show windows (if any) of the Premises; aud Tenant
further agrees that all articles and the arrangement, style, color and gefleral appearance thereof, in the
interior of the Premises which shall be visible from the exterior thereof, including, but not limited to,
window displays, advertising matter, signs, merchandise and store fixtures, shall be maintained in the
Pren'fises so as to keep with the character and standards of the Shopping Center.
SECTION 8.2 Trade Fixtures
All trade fixtures, signs and other personalty hereafter installed by Tenant in the Premises (or any
part of the Shopping Center as permitted) shall be new or reconditioned and "like new," shall be and
remain the property of Tenant and shall be removed by Tanant at the expiration or earl er termination of
the Term provided that: (i) Tenant shall not at such time be n default under this Lease and (ii) Tenant
shall promptly restore the damage done to the Premises by the installation and/or removal thereof.
Should Tenant fail to so remove Tanant's trade fixtures and/or to so restore the Premises, Landlord may
do so, collecting upon demand at Landlord's option, the cost and expeuse thereof as Addifioual Rent.
Any such trade fixtures which are not removed by Tenant at or prior to any termination of this Lease
including, but not limited to, a tem'dnation by Landlord pursuant to this Lease, shall unless Landlord
gives Tenant notice to remove any or all of such trade fixtures, be and become the property of Landlord ~
PIIILA I\1149973\2 070593000 22 ~'~NNQ
(without any obligation by Landlord to pay compensation for such trade fixtures). In the event Landlord
· gives Tanant such notice to remove any or all of such trade fixtures, Tena ~t shall promptly remove san l
of the trade fixtures as may be specified by Landlord in such notice. Notwit ~standiog anything herein
contained to the contrary or any decision of any court to the cootrary, the term "trade fixtures" shall not
include any air-conditioning, heating, lighting, electrical and plumbing equipment installed by Tenant in
the Premises, or any wiring or other apparatus related thereto.
SECTION 8.3 Alterations and Mandatory Rethrbishment
(a) Tenant may, without Landlord's consent, but with prior notice to Landlord, make
alterations to the interior of the Premises which do not alter, modify or in any other maimer whatsoever
affect the structural portions of the Premises and/or the roof of the building of which the Premises shall
form a part and/or the exterior of the Premises (including but not limited to the storefront) and/or the
structural integrity of the building of which the Premises shall fom~ a part, and/or the plumbing,
electrical, heating, ventilating, air-conditioning, or mechanical systems or installations in the Premises,
provided that any such single alteration (or series of such related alterations) does not involve a cost in
excess of Ten Thousar/d Dollars ($10,000.00), and provided further that any such alterations shall
conform to tbe then current design criteria for the Shopping Center. Tenant agrees that it will not make
any other alterations (whether structural or other~vise), improvements, additions or changes to the
interior or exterior of the Premises (including, but not limited to, the storefront of the Premises) during
the Term without in each instance obtaining Landlord's prior written consent. Landlord's consent shall
not be unreasonably withl~eld as to interior nonstmctural alterations. Furthennore, Tenant will not,
except for installation of fixtures or other work specified on Tenant's approved plans and specificatioos
referred to in Section 4.2 hereof or to the extent permitted by the first seotence of this Section 8.3(a), cut
or drill into or secure any fixture, apparatus or equipment of any kind to any part of the Premises without
in each instance first obtaining Landlord's written consent. Together xvith each request for such consent,
Tenant shall present to Landlord detailed plans and specifications for such proposed alterations,
improvements, additions or changes as required by Section 4.2 hereof and Tenant shall comply with
such section in performing such approved alterations.
(b) If the Term is a period in excess of five (5) years, than as a material inducement to
receiving a Term in excess of five (5) years, Tenant shall remodel, at its own expense, the exterior
store front and interior of the Premises at least every five (5) years, measured from the Commencement
Date or from the commencement of the last remodeling required by this Lease, whichever is later.
Tenant shall submit to Landlord for approval, plans and specifications for such work pursuant to Section
4.2 hereof. The remodeling required by this Section shall restore the exterior storefront and interior of
the Pi'enfises to a like-new condition and shall incorporate Tanant's latest store design concept to the
extent possible without making structural alterations. Such remodeling shall iuclude, without
limitations, new floor and wall coverings, and whatever labor and materials are necessary to generally
refurbish the exterior storefront and the interior of the Premises to a like-new condition.
ARTICLE 9
MArNTENANCE AND REPAIR; SLrRRENDER OF PREMISES
SECTION 9.1 Repair and Ma!ntenance by Tenant
(a) Tenant shall at all times at its own expense keep and maintain all portions of the Premises
~.~ot required to be maintained by Landlord pursuant to Section 9.2 hereof, in good order and repair and
m a neat, safe, clean and orderly dondition, including, but not limited to, reasonable periodic painting
and making all uonstructural ordinary and extraordinary, foreseen and unforeseen repairs and
replacements to the Premises and its component systems. The foregoing sentence shall obligate Tenant
to repair, maintain and replace, without limitation, all entrances to the Premises, the storefront, the glass
i[~ all doom and windows of the Premises, all interior portions of the Premises, all trade fixtures, fixtures,
slgus and all walls thereof (except to the extent set forth in Section 9.2(a)), as well as plumbing,
electrical, sprinkler, beating, ventilation and air-conditioning systems, escalators and elevatm-s, if any,
mechanical systems, and sewer lines within the Premises, or under the rom' slab thereof, provided the
subject systems or componants of said systens exc us rely se~-/e ~e Premises Tenant shall also
mai!~tain fi'ce flow to the main serv ce line, and shall repair, maintain and replace all other apparatus or
eqmpment which were installed by Tenant outside the Pren~ises. Tenant shall not overload the electrical
wiring serviug the Premises or within the Premises, and will install at its own expense but only after
obtaiuing Landlord's written approval, any additional electrical wiring which may be required in
connection with the Premises. If Landlord, Agent or affiliates thereof, elect to provide beating,
ventilatiog and air-conditioning inspection, adjustment, cleaning and repair services to Tenant, Tenant
shall utilize such services and pay for the same at rates which are competitive within the same
geographic area for similar services performed by othem; if Landlord elects not to perform such
services, tile Tenaut shall contract for such services with a qualified service coutractor. ~
(b) Tenant will air promptly at its own expense al.. danaage (whetlmr structural or
, nonstm, ctural) to the Premises caused by any construction or alterations performed by Tenant or bringing
into the Premises any property for Tenant's use, or by the installation or removal of sucb property,
regardless of fault or by whmn such danlage was caused, unless and then to the extent caused by the
negligence of Landlord or its servants or employees.
SECTION 9.2 Structural Repairs by Landlord.
(a) Except as otherwise provided by 9.1(b), structural columns, structural portions of the
floors (excluding floor file, carpet or other floor coverings), the roof of the Shopping Center and exterior
walls thereof will be repaired by Landlord provided Tenant gives Landlord notice specifying the need
fro- and nature of such repairs; provided, however, if Landlord is required to make any repairs to such
portions of the Premises by reason, in whole or in part, of the negligent act or failure to act by Tenant or
Tenant's agent, servants, employees, contractors or subcontractors, or by reason of any use of the
Prenrises by Tenant which is not normal wear and tear, Landlord may collect the cost of such repairs, as
Additional Rent, upon demand. For the purpose of this Lease, any difference in floor level, shifting of
floor slab, or deviation in finished floor height resulting from tim insertion or constmctiml of ail
expansion joint or strip in the floor slab shall not be deemed a structural defect requiring repair by
Landlord, but rather, a normal constraction practice which shall be Teuant's responsibility to
appropriately plan for in its construction and use of the Premises. The provisions of this subsection shall
not apply in the case of any casualty or condenmlation in which even'~ the provisions of Article 16 or 17,
as the case may be, shall control.
(b) If, without Landlord's prior consent, Tenant performs any alterations, additions,
improvements, changes, affixations of chattels or other work wbich affects the structural portious of the
Premises and/or the roof of the building of which the Premises are a part and/or that per, ion of the
exterior of the Shopping Center which Landlord is obligated to repair pursuant to Section 9.2(a) or
which affects the structural integrity of the building of which the Premises form a part, such action by
Tenant shall release and discharge Landlord as of the commencement of such alteration, addition,
improvement, aftixation or other work of and from such repair obligation and tbereafter Tenant agrees to
be solely responsible for the maintenance, repair and replacement of any or all such structural portians,
roof, exterior and building which have been affected as aforesaid; provided, in the event Tenant sllall
default th the performance of such responsibilities to Landlord's satisfaction (or at Landlord's option
regardless of Tenant's performance) Landlord, in addition to Landlord's other remedies under this
Lease, at law or in equity, may (but shall not be obligated to) cure such default at Tenant's cost without
any liability of Landlord, its agents, servants, employees, contractors or subcontractors for damage to
Tenant's merchandise, fixtures or other property or to Tenant's business by reason of Tenant's actions
hereunder, or by reason of Landlord's actions to remedy the damage caused by Tenant hereunder. For
the purposes of tile foregoing, if Tenant perfom~s any such alterations, additions, improvements,
changes, affixations or other work in a manner inconsistent with Landlord's prior consent thereto, such
work shall be deemed to have been performed without Landlord's consent.
SECTION 9.3 Surrender of Premises
(a) At the expiration or earlier termination of the Term, Tenant shall peaceably surrender tbe
Premises, broom clean, bee of debris, in good order, condition aud state of repair as required bereby,
ordinary wear and tear excepted to the extent the Premises is not required to be repaired and/or
maintained by Tenant and damage by casualty excepted to the extent that the same is required to be
overed by Landlord s all r sk property ~nsurance and Tenant shall surrender all keys for the Premises to
Landlord and shall notify Landlord in writing of all combinations of locks, safes and vaults, if any, in
the Premises. Tenant shall comply with the provisions of Section 8.2 respecting the renmval of its trade
fixtures before surrendering the Premises.
(b) Whether or not approved by or subject to approval of Landlord, all alteratious,
improvements, additiorts, or changes made by Tenant and all air-conditioning, beating, lighting,
electrical and plumbing equipment and fixtures, and all wiring and other apparatus related to air-
conditioning, heating, lighting, electrical and plumbing equipment installed by Tenant (whether such be
installed prior or subsequent to the Commencement Date) at the Premises (whether or not such
equipment and fixtures are affixed to the Premises as to be removable without destroying the chattels
tlmmselves or the prope~i:y to which they are affixed and whether or uot sucb equipment and fixtures are
real property or personalty) shall remain upon the Premises at the exl~iration or earlier termination of the
Term and shall become the property of Landlord immediately upon )he installation thereof and shall
remain the property of the Landlord without any obligation of Landlord to pay compensation therefor.
?I]ILAI\I 149973~. 070593.000 24
ARTICLE 10
INDEMNIFICATION; SUBROGATION
SECTION 10.1 Indemnification and Waiver of Claim
(a) Tenant will defend and will indemnify Landlord and Agent and save them harmless from
and against any and ali claims, actions, damages, liability and expense (including, but not limited to,
reasonable attorneys~ fees and disbursements) connected with the loss of life, personal injury or damage
to property or business ar/sing from, related to, or in connection with the perfomrance of Tenant's Work,
tbe occupancy of the Premises or occasioned wholly or iu part by act or omission of Tenant, its
coutractors, subcontractors, subtenants, licensees or concessionaires, or its or their respective agents,
servants or employees on any part of Landlord's property or the Shopping Canter or by reason of
T '
anant s breach of any of the provisions of this Lease.
(b) Neither Landlord, Agent nor their respective agents, servants, employees or contractors
shall be liable for, and Tenant, in cousideration of Landlord's executio-
,, ,~ uns t~ease, nereby releases ali
claims for loss of life, personal injury or damage to property or business sustained by Tenant or any
person claiming tln-ough Tanant resulting from any fire, accidant, occurrence m' condition iu or upou the
Shopping Center or any part thereof (including, without limitation, the Premises and the building of
which tbe same is a part), including, but not limited to, such claims for loss of life, personal injury or
damage resulting from (1) any defect in or failure of plumbing, beating or air-conditioning equipmem,
electrical wiring or installation thereof, water pipes, stairs, railings or walks; (2) any equipment or
appurtenances being out of repair; (3) the bursting, leaking or mm~ing of any tank, washstand, water
closet, waste pipe, drain or any other pipe or tank in, upon or ab6ut thb Shopping Center; (4) the backing
up of any sewer pipe; (5) the escape of steam or hot water; (6) xvater, snow or ice being upon or coining
through the roof or any other place upon or near the Premises or the building of which the same is a part
or otherwise; (7) the falling of any fixture, plaster, ceiling tile or stucco; (8) broken glass; (9) auy act or
omission of other tenants or other occupants of thc Shopping Center. The foregoing waiver and release
is intended by Landlord and Tenant to be absolute, unconditional and without exception and to
supersede any specific repair obligation imposed upon Landlord hereunder.
SECTION 10.2 Subrogation
Notwithstanding anything set forth in this Lease to the contrary, Landlord and Tenant do hereby
waive any and ali right of recovery, claim, action or cause of action against the other, their respective
principals, beneficiaries, partners, officers, directors, agants and employees, and with respect to
Landlord or its Mortgagee(s), for any loss or damage that may occur to Landlord or Tenant or any party
claiming by, through or under Landlord or Tenant, as the case may be, with respect to their respective
property the Shopp ng Center or the Premises or any addition or improvements thereto, or any contents
therein, by reason of fire, the elements or any other cause, regardless of cause or origin, including the
negligence of Laudlord or Tenant, or their respective principals, beneficiaries, partners, officers,
directors, agents and employees and, with respect to Landlord or its Mortgagee(s), which loss or damage
is (or would have been, had the insurance required by this Lease bean carried) covered by insurance.
Since this mutual waiver will preclude the assignment of any such claim by subrogation (or otberwise)
to an iosurance company (or any other person), Landlord and Tenant each agree to give each insurance
company which has issued, or in the future may issue, policies of insurance, with respect to the items
covered by tbis waiver, written notice of the terms of this mutual waiver, and to have such insurance
policies properly endorsed, if necessary, to prevent the invalidation of any of the coverage provided by
sucb iusurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the
anmuut of any deductible applicable to any loss or damage shall be deemed covered by, and recoverable
by the insured under the insurance policy tu which ancb deductible relates. In the event tbat Tenant is
permitted to and self-insures any risk wlfich would have bean covered by the insurance required to be
carried by Tenant pursuant to this Lease, then all loss or damage to Tenant, its leasehold interest, its
business, its property, the Premises or any additions or improvements thereto or contents thereof shall be
deemed covered by and recoverable by Tenant under valid and collectible policies of insurance.
ARTICLE 11
SECTION I1.1 Insurance
INSURANCE
(a) Tenant will keep in force w t ~ insurance companies having an A.M. Bes! Rating of"A-"
or better and liceosed to do business in t~e Commonwealth of Pennsylvania at Tenant s ex ense
times during the Term and during such other t -- - ' p at a 1
m~es as tenant occupies the Premises or any part thereof:
25
1. Commercial general liability insurance with respect to the Premises, the
sidex~lks, if any, abutting and adjoining the Premises, and the busineas operated by Tenant and any
subtenants, licensees and concessionaires of Tenant in or from the Premises and its appurtenances
providing, oo an occurrence basis, a minimum combined single limit of Txvo Million Dollars
($2,000,000.00), including insurance against assumed or contractual liability under this Lease, on
account of bodily injury, death, property damage or personal injury as the result of any oue accidant or
disaster. If the nature of Tenant's operation is such as to place any or all of its employees uuder the
coverage of loca! worker's compensation or similar statutes, Teoant shall also kee '
statutory limits. Such liability insurance shall, in addition, extend to any liability of Teoant arising out
of the indemnities provided in Section 10.1 hereof.
2. All risk property insurance covering (a) all of Teuant's stock in trade, trade
fixtures, furniture, furnishings, such equipment as is not affixed to the Premises, and (b) Tenant's
interest in all of the improvements and betterments installed in the Premises by Tenant, in each case to
the extent o fat least eil~hty percent (80%) of their collective replacement value, without coinsurance.
3. Such other types of insurance and such additional amounts of insurance as, m
Landlord's judgment,
are necessitated by good business practice or as may be standard and customary in
the industry.
4. If Tenant sells or dispenses alcoholic beverages, Tenant sball maintain liquor
liability insurance with limits of not less than Two Million Dollars ($2,000,000.00).
(b) Upon request, Tenant will deposit with Landlord policies of insurance required by tl~e
provisions of this Section 11.1, or certificates thereof, together with satisfactory evidence of the payment
of the required premium or premiums thereofi The insurance required hereby may be maintained by
means of a policy or policies of blanket insurance so Iong as. the provisions of this Section are fully
satisfied and provided, further, that such policies specifically name Tenant's businass at the Premises
and Tenaut provides Landlord with a certificate of such insurance.
SECTION 11.2 Insurance Provisions
All policies of insurance required to be carried by Tenant shall provide that the policy shall not
be subject to cancellation, termination or change except after thirty (30) days prior written notice to
Landlord and the policy referred to in Section 11.1(a)(1) shall nmne Laudlord and any other entities as
may be from time to time requested by Landlord including, but not limited to, Landlord's mortgagee(s),
as an additionaI insured as their respective interests may appear. In addition, such policies of insurance
shall contain a provision substantially as follows: "It is understood aud agreed that the insurance
affol-ded by this policy or policies for more than one named insured shalI not operate to increase the
limits of the companies' liability, but otherwise shall not operate to limit or void the coverage of any one
uamed iusured as respects claims against the same named insured by may other named iusured or the
employees of such other named insured."
SECTION I 1.3 Effect on Insurance
(a) Tenant will not do, omit to do, or suffer to be done or keep or suffer to be kept anything
in. upon or about the Premises which will violate the provisions of Landlord's ,,olici~ :-~- ·
,~ ~o m~ur ng against
loss or dan~age by fire or other hazards (including, but not limited to, public liability), which will
adversely affect Landlord's ail risk
e-"v*~ry or mmnty insurance premium rating or which will prevent
Landlord from procuring such policies in companies acceptable to Landlord. If anything done, mnitted
to be done or suffered to be done by Tenant, or kept or suffered by Tenant to be kept in, upon or about
the Premises shall cause, by itself or in combination with other circumstances existing at the Shopping
Center, the prenfium rate of all risk property or other insurance on the Premises or other property of the
Shopping Canter in companies acceptable to Landlord to be increased beyond the established rate from
time to time fixed by the appropriate underwriters with regard to the use of the Premisas for the pulposas
permitted under this Lease or to such other property in the Shopping Ceuter for the use or uses made
thereof, Tenant will pay the amount of such increase or, in the event that other circmnstances existing at
the Shopping Canter shall have contributed to such iucrease, such equitable portion of such increase as
reasonably detem~ined by Laudlord, as Additional Rent upon Landlord's demand and will thereafter pay
the amount of such increase, as the same may vary from time to time, with respect to every premium
relating to coverage of the Premises during a period falling withiu the Tenu until such iucrease is
eliminated. In addition, if applicable, Landlord may at its option rectify the conditim~ existing on the
Premises which caused or was a contributiug cause of the increased nremium
Tenant should fail to do so and m '-, oh .... , ..... ,. , . Z rate m the event that the
a.~ *-,,,s~ m< co~ o~ sucn action to tenant as Additional Rent, payable
on demand. In detenniniog whether increased premiums are the result of Tenant's use of the Premises,
a schedule, issued by the organization making the iosurance rate on the Premises, showing th
I'1 [I LA [/1149973~2 070593 000 26 e~
components of such rate, s ,1 be conclusive evidence of the severa, ~tems and charges which inake up
· the all.risk property insurance rate on tile Premises.
(b) If for any reason whatsoever Tenant fails to provide and keep itt force any or ali of the
insurance policies set forth in Section I 1.1 hereof, thou in such event Tenant shall indemnify and bold
Landlord hanulass against any loss which would have been covered by such insurance.
ARTICLE 12
SECTION 12.1 Utilities
UTILITIES
(a) Tenant shall be solely responsible for and promptly pay all charges for heat, water,
electricity, sewer rents or charges, and any other utility used or consumed in the Premises or in
providing heating and air-conditioning to the Premises, including in each instance, all sales and other
taxes applicable to the .sale or supply of such utilities, said responsibility commencing on the earlier of
the Commencement Date or the date Tenant first enters the Premises for any reason. Should Landlord
elect or be required to supply or make available any utility used or consumed at the Premises, Tenant
agrees to purchase and pay for same, as Additional Rent, every month in the Term. During the Tem~,
Tenant agrees to purchase from Landlord and pay for electricity to be used by Tenant at the Premises in
accordance with Exhibit '~C" attached hereto. During the Tem~, Tenant agrees to purchase from
Landlord and pay for the heating and/or cooling medium supplied by Landlord to the Prenrises, to be
used by Tenant for heating and/or air-conditioning the Premises, as Additional Rent, upon presentation
of bills therefor, at the rate set forth in the paragraph in the Indenture of Lease captioned "HVAC
Charge", subject to adjustments in accordance with Landlord's Charge Rate Adjustmeut Schedule
attached hereto as Exhibit "D".
(b) Tenant sball purebase and install a water meter prior to the Commencement Date, in
accordance with La tdlord's specifications, at Tenant's sole cost and expanse.
(c) In the event the local authority, municipality, utility or other body collects for the water
and/or sewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants and agrees to
pay the water and sewer rent charge (both minimum and otherwise) and any other tax, rent, levy,
connection fee or meter or other charge which now or hereafter is assessed, imposed or may become a
lien upon the premises, or the realty of which they are a part, pursuant to Iaw, order or regulatiou made
or issued in cmmection with the use, consumption, maintenance or supply of water, or the water or
sewerage counection or system.
(d) Landlord may, after thirty (30) days' notice to Tenant, cease to furnish any one or more
of the utility services to the Premises, without any respousibility to Tenant, except to connect Tenant's
distribution facilities therefor with another source for the utility service so discontinued. In addition,
Landlord reserves tile right to cut offand discontinue, upon thirty (30) days' uotice to Tenant, furnishing
any heating, ventilation, air-conditioning or other utility services furnished by Landlord and to remove
its proper~y at any time when Tenant has failed to pay any amount (whether as rent or other~vise) due
nnder this Lease. Landlord shall not be liable for any such discontinuance and the same shall not
constitute ' ' ·
a termmatmn of this Lease or an eviction of Tenmtt.
(e) In no event shall Landlord be liable to Tenant in damages or otherwise for any
inten'uption, curtailment or suspension of any of the foregoing utility services in the event of a default
by Tenant under this lease or due to repairs, action of public authority, strikes, acts of God, or public
euemy, or any other cause, whether similar or dissimilar to the aforesaid.
SECTION 12.2 Application ForUtilities
In the event Landlord shall cease to supply any utility services to the Premises, Tenant shall
make all appropriate applications to the local utility companies at such times as shall be necessary to
insure utilities beiug available at the Premises at all times and shall pay all required deposits, cormection
fees and/or charges for meters within the applicable time period set by the local utility company.
SECTION 12.3 Operation of Heating and Air-Conditioning
Tenant must operate heating and/or cooling equipment serving the Premises in such a rammer as
to maintain store tenlperaturas at such temperatures as will prevent the freezing or bursting of pipes and
the draioing of heated or chilled air, ~s the case may be, front any enclosed sections of the Shopping
Center,
SECTION I2.4 HVAC Charge Defined
p lin.^ m ~ 4 ~o?3a 0705,~ 000 2 7
consideratioo, review or doc.,uent preparation of any consented to assigmnent or subletting, such sum
· to be paid at the ' ·
time Tenant requests Landlord's executmn of such document.
(e) If at any time during the Term any part or all of the corporate shares of Tenant, or of a
parent corporation of which the Tenant is a direct or indirect subsidiary, sball be transferred by sale,
assigment, bequest, inheritance, operation of law or other disposition so as to result in a change ii: the
present effective voting control of Tenant or of such parent corporation by the person or persons owning
or controlling a majority of the shares of Tenant or of such parent corporation on the date of this Lease,
Tenm~t shall promptly notify Landlord in writing of such change, and such change in voting control shall
constitute an assignment of this Lease for all purposes of this Section; provided, however, that this
provisinn shall not apply in the event that over fifty percent (50%) of the voting power of the Tenant
corporation or of such parent ~orporation is held by fifty (50) or more unrelated sharehelders or
distributed to such number of unrelated shareholders in a public distribution of securities.
(0 If Tenant is a partnership and if any time during the Term any person who at tile time of
the executinn of this Lease owns a general partner's interest ceases to own such general partner'~
interest, such cessation oT ownership shall constitute an assignment of this Lease for ail purposes of this
Section.
(g) Upon the occurrence of any such events as desi:ribed in Section I4.1 hereof, whether
voluntary, involuntary, by operation of law, or otherwise, without the prior written consent of Landlord
(whether or not Tenant shall have given notice thereof to Landlord), Landlord may treat any such
occurrence as an Event of Default.
ARTICLE 15
MARKETING AND ADVERTISING THE CENTER
SECTION 15.1 Marketing Fund
Landlord has elected to provide or cause to be provided an ongoing program of promotional
events which, in Landlord's judgment, will serve to promote the Shopping Center and attract customers
thereto. Landlord has established a separate bank account into which Landlord shall deposit the
contributinns referred to herein to be made by Tenant and other tanants, the aggregate of such funds on
hand from time to time being referred to herein as the "Marketing Fund". Tenant shall pay the
Landlord, as Tenant's contribution to the Marketing Fund, an annual charge ("Marketing Charge") in the
anmunt specified in Paragraph J of the Indenture of Lease, such amount to be increased on January I st
of each year during the Term by three pement (3%) of the previous year's payment. The Marketiug
Fund shall be used to pay ail costs and expenses associated with the formation and carrying out of an
ongoing program for the promotion of the Shopping Center, whicb program may include, without
limitation, special events, shows, displays, signs, seasonal evants, and other activities designed to attract
customers to the Shopping Center. In connection with the operation of the Marketing Fund, Landlord
shall have the right to contract for or otherwise employ a professional promotional organization and
other personnel whinh, in Landlord's judgment, are necessary to administer tbe Marketing Fund and
such promotional activities to be implemented by Landlord, and such organization and personnel shall
be under the exclusive control and supervision of Landlord who shaIl have the sole authority to employ
and discharge the same. The Marketing Fund may be used to defray the cost of administration of such
marke~t ng activities including the salary or payments mid reimbursements due such organization and
personnel, rent, travel expenses, and other business expenses.
SECTION 15.2 Media Fund
(a) In addition to the Marketing Fund set forth in Section 15.1, Landlord has elected to
provide or cause to be provided an ongoing program to purchase and provide electronic, print and other
institutional advertising for the promotion of the Shopping Center. Landlord has established a separate
bank accnnnt into which Landlord shall deposit the contributions referred to herein to be made by
Tenant and other tenants, tile aggregate of such funds on hand from time to time being referred to herein
as tile "Media Fund". Tenant shall pay the Landlord, as Tenant's contribution to the Media Fund, an
annual charge ("Media Charge") in tbe amount specified in Paragraph J of the Indenture of Lease, such
amount to be increased on January Ist of eacb year during the Term by three percent (3%) of the
prevmus year's payment. The Media Fund shall be used to pay all costs and expenses associated with
the purchase of electronic, print and other institutional advertisiug for tile promotinn of the Shopping
Center. Landlord shall have the sole right to designate and contract for the services of ail advertising
agency or other professinnal organization or personnel to administer the Media Fund and such agency,
organiza~io ~ and personnel shall be under the exclusive control and supervision of Landlord who shall
have the sole authority to employ and discharge the same. Tbe Media Fund may als$ be used t
tim cost of administration ( ~e Media Fund including the salary oi .yments and reimbursements due
· such agency, organization anct persmmel, as well as rent, travel expenses and other business expenses.
(b) Landlord may, at its option, combine the Media Fund with the Marketing Fund and
administer both as a single entity.
SECTION 15.3 Merchants' Association
In the event there presently exists either a merchant's association, prolnotion fund, or other
similar entity the purpose of which is to advertise the Shopping Center, Landlord agrees that unless
Landlord shall hereafter direct otherwise, the Tenant shall not be obligated to contribute any sums
thereto. If Landlord shall direct, in lien of Tenant's payments to the Marketing Fund and/or Media
Fund, Tenant shaIl commence paying an amount equal to the then current Marketing Charge and/or
Media Charge to Landlord, as agent for such memhants' association and/or promotion fund. Tenant
does hereby irrevocably assign to Landlord all of Tenant's voting rights contained in any bylaw or other
similar document forming or governing the administration of any such association or other entity.
Tenant further agrees that Landlord shall have the option at any time during the Term to discontinue and
dissolve such merchants' association and/or other entity then in effect and to pay over to the Marketing
Fund and Media Fund in such percentages as Landlord shall determine, any sums remaining therein.
SECTION 15.4 Payment of Obligations to the Marketing Fund and Media Fund
All sums required to be paid by Tenant pursuant to this Article 15 shall be deemed "Additional
Rent", shall be payable with each monthly instalhnent of Fixed Minimum Rent, without demand,
deduction or offset, and shall be prorated for partial time period~ during the Term.
SECTION 15.5 Expansion Opening Contribution
If the Shopping Center shall be expanded by adding floor area equal to more than fifteen (15%)
pement of Landlord's gross leasable floor area, Tenant shall pay to the Marketing Fund, within thirty
(30) days of demand therefor, a one-time charge for each such expansion (the "Expansion Opening
Coutribution") detem~ined by multiplying the square footage of Tenant's total floor area in the Premises
by One Dollar ($1.00).
ARTICLE 16
DESTRUCTION OF PREMISES
SECTION 16.1 Totalor PartialDestmction of Premises
(a) If the Premises shall be damaged by fire or other casualty covered by Laudlord's policies
of all risk property insurance but are not thereby rendered untenantable in whole or in part, subject to the
limitations hereafter set forth, Landlord, at its own expense, aha cause anch dan~age to be repaired, and
the rent shall not be abated. If by reason of such occurrence, the Premises shall be rendered untenantable
in whole or in part, subject to the limitations hereafter set forth, Landlord, at its own expense, shall cause
the damage to be repaired and the Fixed Minimum Rent shall be abated proportionately as to the portion
of the Premisas rendered untenantable until the completion of Landlord's repairs thereto~
(b) If the Premises shall be damaged or destroyed by a fire or casualty not covered by
La ~dlord's policies of all risk property insurance and Landlord, at its option, decides not to repair and
restore the Premises, Landlord shall have the right, to be exercised by notice in writing delivered to
Tenant within sixty (60) days from and after the occurrence ofsucb damage or destruction, to cancel and
terminate this Lease. Either party shall have the right, to be exercised by notice in writing, delivered to
tile other within thirty (30) days from and after any occurrence which renders the Premises wholly
untenantable to cancel this Lease, if said destruction of the Premises occurs within the last three (3)
years of the Term, said cancellation to take effect ninety (90) days from and after tile receipt of such
notice by the other party, and in such event this Lease and the tenancy hereby created shall cease as of
tile aforesaid date (except that such cancellation shall not affect the obligations of the parties which have
accrued tharetofore and remain unpaid), the rent to be adjusted as of sucb date; provided, however, that
if Landlord shall commence repairs or reconstruction of the destroyed Premises during the period prior
to the cancellation date, the tenancy shall remain in effect and said notice of caucellation shall be
considered void.
(c) In no event shall Landlord be obligated to e~pend for any repairs or reconstruction
pursuant to tbis Section 16.1 an amount in excess of the insurance proceeds recovered by it and allocable
to the damage to the Premises after deduction therefrom of Landlord's reasonable expenses in obtaining
such proceeds and any amounts required to be paid to Landlord's mortgagee. Nothing in this Section
shall be construed to permit the abatement in whole or itl part of the Percentage Rent, and the calcul
PI I/LA I~1149973~2 070593.000 3 1 a~
of Percentage Rent shall be governed solely by Sectiou 2. l(e) hereof. The provisions hereof are subject
· to the t~mas of Section 16.2 hereof.
(d) If Landlord is required to repair or reconstruct the Premises pursuant to the provisions of
this Section 16.1, its obligation shall be limited to the construction of the structural demising Walls
(without drywall) and roof of the Premises. Tenant shall submit to Landlord for Landlord's approval
detailed plans and specifications for all other work not required to be done by Landlord and upon
approval of such plans and specifications, and within fifteen (15) days after Tenant has be[n notified
that Landlord has completed its work on the Premises, Tenant shall reenter the Premises and th. erein
diligently pursue to completion such work at Tenant's expense and immediately thereafter commence
doing business all in accordance with the provisions of this Lease. Landlord shall not be liable for
delays occasioned by adjustment of losses with insurance carriers or by any other cause, so long as
Landlord shall proceed in good faith.
(e) Notwithstanding anything set forth herein to the contrary, Tenant shall be responsible for
all repairs and replacements of damage and/or destruction of the Premises necessitated by burglary or
attempted burglary, or ahy other illegal or forcible entry into the Premises.
(f) Tenant covenants that it will give notice to Landlord of any accident or damage, whether
such damage is caused by insured or uninsured casualty, occurring in, on or about the Premises within
seventy-two (72) hours after Tenant has knowledge of such accident or damage. If Tenant breaches its
covenant set forth in this Section 16.1(0, Landlord's liability shall be limited to performing the repairs
rec[uired Cy Landlord hereunder and in addition to all other rights and remedies under this Lease, at Iaw
or In eqmty, Landlord shall, at its option, hold Tenant liable for and Tenant shall reimburse Landlord for
the cost to remedy any such damage which could have been prevented by Tenant's timely notice to
Landlord as herein set forth.
SECTION 16.2 Partial Destruction of Shopping Center
In the event that fifty pement (50%) or more of the gross leasable floor area of the Shopping
Center shall be damaged or destroyed by fire or other cause notwithstanding that the Premises may be
unaffected by such fire or other cause, Landlord shall have the right, to be exemised by notice in writing
delivered to Tenant within sixty (60) days after said occurrence, to cancel and terminate this Lease.
Upon the giving of such notice, the Term shall expire by lapse of time upon the fifteenth (15th) day after
such notice is given and Tenant shall vacate the Premises and surrender the same to Landlord.
ARTICLE 17
EMrNENT DOMAIN
SECTION 17.1 Total Condemnation of Premises
If the whole of the Premises shall be taken by any public or quasi-public authority under the
power of eminent domain, condemnation or expropriation or in the event of a conveyance in lieu
thereof, then this Lease shall terminate as oftbe date on which possession of the Premises is required to
be surrendered to the condemning authority, and Tenant shall have no claim against Landlord or the
condemning authority for the value of the unexpired Term.
SECTION 17.2 Partial Condemnation of Premises
(a) If any part of the Premises shall be so taken or conveyed and if such partial takiog or
conveyance shall render the Premises unsuitable for the business of the Tenant, then the Term shall
terminate as of the date on which possession of the Premises is required to be surrendered to the
condemning authority and Tenant shall have no claim against Landlord or the condemning authority for
the value of any unexpired Term.
(b) In the event such partial taking or conveyance is not extensive enough to render the
Premises unsuitable for the business of Tenant, this Lease shall conthiue in full force and effect except
that the Fixed Minimum Rent and the Percentage Rent Gross Sales Base shall each be reduced in the
same proportion that the floor area of the Premises so taken or conveyed bears to such floor area
immediately prior to such taking or conveyance such reduction commencing as of the date Tenant is
required to surrender possession of such portion and with respect to the days during which the Premises
are not opan for business the calculation of Percentage Rant shall be adjusted in accordance with Section
2.1(d) hereof. Landlord shall promptly restore the Premises, to the extent of condemnation proceeds
available for such purpose, as nearly as practicable to a condition comparable to their condition at the
time of such condemnation less the portion lost in the taking or conveyance and Tenant shall promptly
make all necessary repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings
and shall promptly reenter the Premises and commence doing business in accordance with the provisions
of this Lease. For purposes ~ determining the amount of funds available for restoration of the Premises
' from the condemnation award said amount will be deemed to be that part of the award which remains
after payment of Landlord's reasonable expense incurred in recovering same and of any amounts due to
any mortgagee of Landlord, and which represents a portion of the total sum so available (excluding any
award or other con~pensation for land) which is equitably allocable to tile Premises.
SECTION 17.3 Partial Condemnation of Shopping Center
If(i) more than one-third (1/3) of the floor area of the buildings of which tile Premises are a part
or more than one-third (I/3) of the leasable floor area of the Shopping Center or more than one-third
(1/3) of the Common Areas shall be so taken or conveyed or (ii) if any part of the parking area in the
Shopping Center is so taken or conveyed and as a result of such partial taking or conveyance tile size,
layout or location of the remaining parking facilities will violate the requirements of the applicable
zonhig or similar law (or any permitted variance or exception thereto), then in any or all such events
notwithstanding the fact that the Premises are not so taken or conveyed, Landlord ihall have tile right
and power, at its option to be exercised by written notice to Tenant, to tenninate this Lease effective
either the date title vests in the condemning authority or the date Landlord is required to deliver
possession of the part so taken or conveyed, provided, however, in the event of a taking or couveyance
described in clause (ii) if Landlord shall take immediate steps towards eliminating such violation, this
Lease shall be unaffected and remain in full rome and effect. In any event, Tenant shall have no cIaim
against Landlord or the condemning authority for the value of any unexpired Term.
SECTION 17.4 Landlord's Damages
In the event of any condemnation or taking as hereinbefore provided, whether whole or in part,
Tenant shall not be entitled to any part of the award as damages or otherwise for such condemnation and
~andlord and any mortgagee of Landhird are to receive the full amount of such award as their respective
interests may appear. Tenant hereby expressly waives any right or claim to any part thereof and assigns
to Landlord any such right or claim to which Tenant might become entitled.
SECTION 17.5 Tenant's Damages
Although all damages in the event of any condemnation are to belong to tbe Landlord and any
mortgagee of Landlord as aforesaid, whether such damages are awarded as full compensation for
diminution in value of the leasehold or to the fee of the leased Premises, Tenant shall have the right to
the extent that same shall not diminish the Landlord's or such mortgagee's award to claim and recover
from the condemning authority, but not from Landlord or such mortgagee, such compensation as may be
separately awarded or recoverable by a tenant under the applicable eminent domain code in effect where
the Slmpping Center is located in Tenant's own right for or on account of, and limited solely to, any cost
to which Tenant might be put in removing Tenant's memhandise, furniture, fixtures and equipment.
ARTICLE 18
BANKRUPTCY
SECTION 18.1 Bankruptcy
(a) If there shall be filed against Tenant or any guarantor or surety of this Lease or any of
Tenant's obligations under this lease, in any court, pursuant to any statute either of the United States or
of any state, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or any portion of Tenant's or such guarantor's or surety's property, and if,
within thirty (30) days thereof, Tenant or such guarantor or surety fails to secure a discharge thereof, or
if Tenant or such guarantor or surety shall voluntarily file any such petition or make an assignment for
the benefit of creditors or petition for or enter into such an arrangement, then this Lease, at the optinu of
Landlord, nray be cancelled or terminated, in which event neither Tenant nor any person claiming
through or under Tenant by virtue of any statute or of an order of any court shall be entitled to acquire or
remain io possessiou of the Premises, as the ease may be, and Laudlord shall have no further liability
hereunder to Tenant or such person, and Tenant or any such person sball forthwith quit and surcender the
Premises. If this Lease sball be so cancelled or terminated, Landlord, in addition to the other rights and
remedies of Landlord under Article 18 hereof, or contained elsewhere in this Lease, or by virtue of any
statt~te or rule of law, may retain as liquidated damages any rent, security deposit aud any other money
received by Landlord fi'om Tenant or others on behalf of Tenant.
(b) If this Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, i1 U.S.C. Section 101 et seq. (the "Bankruptcy Code"), fifty percent (50%) of any
and all ninnies or other consideration payable or otherwise to be delivered in cormectinn with such
assigmnent shail be paid or delivered to Landlord, sha be and remain the exclusive property of
Landlor~ and shall not constitute property of Tenant or of the estate of Tenant, within the meanin
Bankruptcy Code. Any z ties or other consideration constituting Landlord's property under the
· precedi.ng seutence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and sball be promptly paid or delivered to Landlord.
(c) Any person or entity to which this Lease is assigned pursuant to tile provisions of tile
Bankruptcy Code shall be deemed, without further act or deed, to bare assumed all of tile obligations
arisiug under this Lease on or after the date of such assignmeut. Any such assignee shall, upon the
request of Landlord, forthwith execute and deliver to Landlord an instrument, in form and substance
acceptable to Landlord, confirming such assumption.
(d) In addition to Landlord's right to approve or disapprove the proposed sublease or
as?~m~ae~.t, as set forth above, L. andlord shall have the right, to be exercised by giving notice to Tenant
w~th~n thirty (30) days after receipt of Tenant's request to assigu or sublet, to recapture the Premises, or
portion thereof described in the proposed sublease or assignment. If notice of such recapture is given, it
shall serve to cancel and terminate this Lease with respect to the proposed sublease or assignment space,
or, if the proposed sublease or assignment covers the entire Premises and Term, it shall serve to cancel
and terminate the Lease,. in either case as of the thirtieth (30th) day after the date of Landlord's notice
and as fully and completely as if that date had been definitely fixed as the expiration of the Term. If this
Lease be cancelled pursuant to the terms hereof with respect to less than the entire Premises, the Fixed
Minimum Rent shall be adjusted on the basis of the proportion of the total area retained by Tenant to
Tenant's total area originally demised hereby, the Lease so emended shall continue thereafter m full
rome and effect. The failure of Landlord to exercise its fight of recapture shall not be construed in any
maturer to be an approval of Tenant's request to assign or sublet, such approval to be effective only if
given in writiug by Landlord to Tenant.
ARTICLE 19
EVENTS OF DEFAULT, LANDLORD'S REMEDIES
SECTION 19.1 Events of Defanlt
The following shall Constitute an Event of Default:
1. If Tenant defaults in the payment of any sum of money (whether Fixed Minimum
Rent, Percentage Rent, Tax Rent, Tenant's proportionate share of Operating Costs, Tenant's
proportionate share of Landlord's ali risk property insurance, the HVAC Charge, Marketing Charge,
Media Charge, Additional Rent or otherwise) when due. If such default shall not be cured within ten
(10) days after the date of written notice from Landlord to Tenant of said default, Landlord may pursue
tile remedies set forth in this Article.
2. Except as to acts, defaults, omissions and/or occurrences specified iu subsections
I, 3 and 4 of this Section 19.1(a), or those characterized, defined, denoted, or identified in this Lease as
a Deliberate Event of Default, if Tenant defaults in fulfilling any of the non-monetary covenants of this
Lease on Tenant's part to be performed hereunder and such default shall not be cured within the period
within which performance is required to be made by specific provision of this Lease, or, if no such
period is so provided, within twenty (20) days after the date of written notice from Landlord to Tenant
specifying the nature of said default, or, if the default so specified shall be of such a nature that the same
camaot be reasonably cured or remedied within said twenty (20) day period, if Tenant shall not in good
faith have commenced the curing or remedying of such default within snch twenty (20) day period and
shall not thereafter diligently proceed therewith to completion.
3. If any execution or attachment shall be issued against Tenant or any of Tenant's
property and shall not be discharged or vacated within twenty (20) days after the issuance thereofi
4. Any event described in Section 18.1 or Section 19.2.
5. The occurrence of any other event described as constituting an Event of Default
elsewhere in this Lease.
SECTION 19.2 Deliberate Events of Default
(a) The following shall be deemed to be a Deliberate Eveot of Default:
1. If Tenant shall (i) fail timely to make payment of Fixed Minimum Rent,
Percentage Rent, Tax Rent, Tenant's proportionate share of Operating Costs, Tenant's proportionate
share of Landlord's all risk property insurance, the HVAC Charge, Marketing Charge or Media Charge
in each case on the date such payment is due hereunder, without regard to any grace period and/or
written notice othenvise required from Landlord, and any such failure shall be repeated two (2) ti
P/IILA BI 149973~2070§93.000 34 ~
any period of twelve (12) months, or (ii) fail to maintain the hours of operation required by Paragraph F
· of the Indenture of Lease and such failure shall be repeated more than three (3) times in any period of
twelve (12) manths, and notwithstanding that such failures shall have been timely cured.
2. If Tenant abandons the Premises whether tile Premises are vacant or not, or if
Tenant permits the Premises to become vacant.
(b) In the event of a Deliberate Event of Default, Landlord may immediately and without any
notice to Tenant exercise any or all of its rights under this Lease in addition to those it may have at law
or in equity.
SECTION 19.3 Termination
(a) Upon or after the occurrence of any one or more of such Events of Default, or Deliberate
Events of Default, and upon the expiration of the applicable notice required hereunder, if the Tema shall
not have commenced Landlord may immediately cancel this Lease by written notice to Tenant, or if the
Tempt shall have commenced Landlord may serve upon Tenant a written notice that this Lease and the
Teml will terminate on a date to be specified therein, and in either event, Tenant shall have no right to
avoid the cancellation or termination by payment of any sum due or by other performance of any
condition, term or covenant broken.
(b) Upon the date specified in the aforesaid notice of termination, this Lease and the Term
shall terminate and come to an end as fully and completely as if such date were the day herein definitely
fixed for the end and expiration of this Lease and such Term, and Tenant shall then quit and surrender
the Premises to Landlord, but notwithstanding any statute, rule of law, or decision of any court to the
contrary, Tenant shall remain liable as set forth hereinafter.
SECTION 19.4 Right of Possession
Upon or after any one or more Events of Default or Deliberate Events of Default and upon the
expiration of any applicable notice period required hereunder; or if the notice provided for above in
Section 19.3 hereof shall have been given and this Lease shall be terminated; or if the Premises become
vacant or deserted; then, in all or any of such events, in addition to and not in lieu of all other remedies
of Landlord, Landlord may without notice terminate all services (including, but not limited to, the
furnishing of utilities) and/or reenter the Premises either by reasonable force if necessary to properly
secure the Premises or in the event of emergency, or by summary or other court proceedings to
dispossess Tenant and the legal representative of Tenant or other occupant of the Premises, and remove
their effects and repossess and enjoy the Premises, together with all alterations, additions and
improvements, all without being liable to prosecution or damages therefor:
SECTION 19.5 Additional Remedies of Landlord
(a) In the event of any Event of Default, Deliberate Event of Default, reentry, termination
and/or dispossession by summary proceedings or otherwise, in addition to, and not in lieu of, all other
remedies which Landlord has under this Lease, at law or in equity:
1. The Fixed Minimum Rent and all Additional Rent shall become due thereupon
and be paid up to the time of such reentry, dispossession and/or expiration;
2. Landlord may relet the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term which may at Landlord's option be less than or exceed the period
which would otherwise have constituted the balance of the Term, and may grant concessions or free
rent; and
3. Tenant or the legal representative of Tenant shall also pay Landlord, at Landlord's
option and whether or not Landlord has terminated or cancelled this Lease, as liquidated damages for the
failure of Tenant to observe and perform said Tenant's covenants herein contained, for each month of
the period which would otherwise have constituted the balance of the Term, the excess, if any, of the
sum of one monthly installment of Fixed Minimum Rent, one-twelfth (1/12th) of the mmual average
Perceutage Rent payable hereunder for the three (3) Lease Years immediately preceding (or for the
entire preceding portion of the Term if less than tlu'ee (3) Lease Years), the monthly portion of the
payment of Tax Rent that would have been payable for the period in quastion but for such reentry or
termination, the HVAC Charge payable for such month computed on the basis of the average monthly
charge for the said three (3) preceding Lease Years or entire preceding portion of the Teml, as the case
may be, the monthly payment of Tenant's current proportionate share of Operating Costs, and the
Marketing Charge, computed on a monthly basis over the net amount, if any, of the rents actually
collected on account of the lease or leases of tile Premises for such month.
The failure Landlord to relet the Premises or any pall: or parts thereof shall not release
or affect Tenant's liability for damages. In computing such liquidated damages there shall be added to
the said deficiency all expenses Landlord may incur in connection with reletting, sucb as court costs,
reasonable attorneys' fees and disbursements, brokerage, and management fees and commissions, cost
of putting and keeping the Premises in good order and costs 0f prgp~.ring the Premises for reletting as
hereinafter provided. Any such liquidated damages shall be paid in monthly instalhnents by Tenant on
the day specified in this Lease for the payment of Fixed Minimum Rent and any action brought to
collect the amount, of deficiency for any month shall not prejudice in any way either the rights of
Landlord to collect the deficiency for any subsequent month by a similar proceeding, or the rights of
Landlord to elect to collect liquidated damages calculated by the fommla set forth in Section 19.5(b)
bereofi Landlord, at Landlord's option, may make such alterations, repairs, replacements and/or
decorations in the Premises as Landlord in Landlord's sole judgment considers advisable and necessary
for the purpose of reletting the Premises; and the making of such alterations and/or decorations shall not
operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to relet the Premises or, in the event that the Premises
are relet, for failure to c.ollect the rent thereof under such reletting.
(b) In any of the cimumstances mentioned in the foregoing Section 19.5(a) in which
Landlord shall have tbe right to hold Tenant able as therein provided, Landlord shall have the election,
in place and instead of holding Tenant so liable, forthwith to recover against Tenant, as liquidated
damages for loss of the bargain and not as a penalty, a sum equal to the monthly amount of Fixed
Minimum Rent and all Additional Rent multiplied by the number of months m~d fractional months
which would have constituted the balance of the Term (or such lesser thne period specified by
Landlord), all discounted to present worth at the pr/me rate, together with costs and reasonable
attorneys' fees.
(c) In the event of a breach or threatened breach by Tenant of any of tile covenants or
provisions hereof, Landlord shall have the right of injnnction and the right to invoke any remedy
allowed at law or in equity as if reentry, summary proceedings and other remedies were not provided for
berein. Mention in this Lease of any particular remedy sball not preclude Landlord from any other
remedies under this Lease, or now or hereafter existing at law or in equity or by statute. The provisions
of this Section 19.5(c) shall not apply to Landlord's rights uuder Section 5.5 wlfich shall be limited to
the provisions set forth therein.
(d) Tenant hereby expressly waives the service of notice of intention to reenter or to institute
legal proceedings to that end and any and all rights of redemption granted by or uuder any present or
future laws in the event of Tenant being evicted or dispossessed for any cause, or in any event of
Landlord obtaiuing possession of the Premises by reason of the violation by Tenant of any of the
covenants and conditions of this Lease or otherwise. The words "reenter" and "reentry" as used in this
Lease are not restricted to their technical legal meaning.
(e) Upon the termination of the Lease for any reason, in the event the actual amouuts for any
Fixed Minimum Rent, Percentage Rent or Additional Rent are not known at the time of such
termination, Landlord shall be permitted to estimate the sum~ due. berannder based upon the rate of
current charges and other reasonable factors. Landlord reserves ihe right to adjust the amounts due
hereunder followiug the end of the relevant Accounting Period, Tax Period or other relevant time period
provided for herein and to bill Tenant for any balances due hereunder.
SECTION 19.6 Performance of Tenant's Covenants
Tenant covenants and agrees that it will perform all agreements and observe all covenants herein
expressed on its part to be performed and observed, and that it will promptly, upon receipt of written
notice specifying action required by this Lease, comply with such notice; and further, that if Tenant shall
not comply witb any such notice to the satisfaction of Landlord pr/or to the date on which such
noncompliance would constitute an Event of Default, in addition to, and not in lieu of or in limitation of
any other remedy wlfich Landlord may have pursuant to this Lease, at law or iu equity, Landlord may,
but shall uot be obligated to, enter upon the Premises and do the things specified in said notice.
Landlord shall have no liability to Tenant for any loss or damage resulting in any way from such action
and Tenant agrees to pay upon demand, as Additional Rent, any sums or costs incurred by Landlord in
taking such action, plus administrative costs of Landlord in a sum equal to twanty percent (20%) of sucb
sums and/or costs. Notwithstanding the foregothg, Landlord's performance of any or all of Tenant's
covenants shall not release Tanant from liability for nonperformance.
SECTION 19.7 Coufession of Judgment
(a) IF TENANT SHALL DEFAULT IN THE PAYMENT OF THE RENT OR ANY
OTHER SUMS DUE HEREUNDER BY TENANT, OR IN THE EVENT OF A DELIBERATE ~
PI IJLAII[ 149973~ 07059].000 36 ~-~
EVENT OF DEFAULT AS DEFINED HEREIN, TENANT HEREBY IRREVOCABLY
· AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF
RECORD WITHiN THE UNITED STATES OF AMERICA, OR ELSEWHERE, TO APPEAR FOR
TENANT, WITH OR WITHOUT COMPLAINT FILED; AND IN SAID SUITS OR ACTIONS TO
CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST TENANT AND ALL
PERSONS CLAIMiNG THROUGH OR UNDER TENANT, IN FAVOR OF LANDLORD, FOR ALL
OR ANY PART OF SAID RENTAL AND/OR SAID OTHER SUMS, iNCLUDING, BUT NOT
LIMITED TO, THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER SUBSECTION a)
or SUBSECTION b) OF THIS SECTION, AND INCLUDING. ANY AMOUNT TO WHICH
LANDLORD WOULD BE ENTITLED AS DAMAGES UNDER THE PROVISIONS OF THIS
LEASE, INCLUDING, BUT NOT LIMITED TO, ARTICLE 19, AND FOR INTEREST AND COSTS,
AND A REASONABLE ATTORNEY'S COMMISSION NOT TO EXCEED FIFTEEN PERCENT
(15%) OF THE TOTAL AMOUNT OF SUCH RENTAL AND/OR SAID OTHER SUMS FOR
COLLECTION, FOR WHICH THIS LEASE, OR A TRUE AND CORRECT COPY THEREOF,
SHALL BE SUFFICIENT WARRANT, AND SUCH POWERS MAY BE EXERCISED AS WELL
AFTER THE TERMIIIIATION OR EXPIRATION OF THE TERM OF THIS LEASE. THE
WARRANT OF ATTORNEY HEREIN GRANTED SHALL NOT BE EXHAUSTED BY ONE OR
MORE EXERCISES THEREOF, BUT SUCCESSIVE ACTIONS MAY BE COMMENCED AND
SUCCESSIVE JUDGMENTS MAY BE CONFESSED OR OTHERWISE ENTERED AGAINST
TENANT FROM T/ME TO TIME AS OFTEN AS ANY OF THE RENT AND/OR OTHER
AMOUNTS AND SUMS SHALL FALL OR BE DUE OR BE iN ARREARS, AND THIS WARRANT
OF ATTORNEY MAY BE EXERCISED AFTER THE TERMINATION OR EXPIRATION OF THE
TERM AND/OR DURING OR AFTER ANY EXTENSIONS OF THE TERMS OR RENEWALS OF
THIS LEASE. TENANT HEREBY ACKNOWLEDGES THAT BY AGREEING TO THE
FOREGOING CONFESSION OF JIJI)GMENT AND WARRANT OF ATTORNEY, TENANT
WAIVES THE RIGHT TO NOTICE AND A PRIOR JUDICIAL PROCEEDING TO DETERMINE
ITS RIGHTS AND LIABILITIES, AND FURTHER ACKNOWLEDGES THAT LANDLORD MAY,
ON DEFAULT BY TENANT UNDER THE LEASE, SUBJECT TO SUCH NOTICE
REQUIREMENTS, IF ANY, AS ARE HEREIN EXPRESSLY PROVIDED, OBTAIN A JUDGMENT
AGAINST TENANT FOR ALL SUMS DUE HEREUNDER, AND LEVY EXECUTION ON SUCH
JUDGMENT AGAINST ANY AND ALL PROPERTY OF TENANT WITHOUT ANY
OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE, SETOFF, COUNTERCLAIM OR
OTHER CLAIM THAT TENANT MAY HAVE, AND THAT TENANT KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY GRANTS LANDLORD THE FOREGOING RIGHT TO
CONFESS JUDGMENT AND WARRANT OF ATTORNEY AS AN EXPLICIT AND MATERIAL
PART OF THE CONSIDERATION BARGAiNED FOR BETWEEN TENANT AND LANDLORD.
TENANT CERTIFIES THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED) AT THE SIGNING OF THIS LEASE AND IN THE
GRANTING OF THIS CONFESSION OF JUDGMENT AND WARRANT OF ATTORNEy BY
INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS
HAD THE OPPORTUNITY TO DISCUSS THE CONFESSION OF JUDGMENT AND WARRANT
OF ATTORNEY WITH COUNSEL. TENANT FURTHER CERTIFIES THAT IT HAS READ AND
UNDERSTANDS THE MEANING AND EFFECT OF THE FOREGOING CONFESSION' OF
JUDGMENT AND WARRANT OF ATTORNEY. TENANT FURTHER ACKNOWLEDGES THAT
THIS LEASE IS A COMMERCIAL TRANSACTION, AND THAT THE RELATIONSHIP
BETWEEN LANDLORD AND TENANT CREATED HEREUNDER IS COMMERCIAL IN
NATURE.
(b) IN THE EVENT OF THE BREACH OF ANY PROVISION OF THE LEASE, AN
EVENT OF DEFAULT OR A DELIBERATE EVENT OF DEFAULT AS DEFINED HEREIN,
EITHER DURING THE TERM OR ANY RENEWAL OR EXTENSION THEREOF, AND/OR WHEN
AND AS SOON AS THE TERM SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT
HEREBY IRREVOCABLy AUTHORIZES AND EMPOWERS ANY PROTHONOTARY OR
ATTORNEY OF ANY COURT OF RECORD AS ATTORNEY FOR TENANT AND ANY PERSONS
CLAIMING THROUGH OR UNDER TENANT, WITH OR WITHOUT COMPLAINT FILED, TO
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING
THROUGH OR UNDER TENANT, IN FAVOR OF LANDLORD, FOR THE RECOVERY BY
LANDLOILD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE, OR A TRUE AND
COP,~ECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT, WHEREUPON IF
LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE
FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND
PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN
COMMENCED THE SAME SHALL BE DETERMINED, CANCELLED OR SUSPENDED AND
POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TENANT OR ANy
PERSON CLAIMING THROUGH OR UNDER TENANT, LANDLORD SHALL HAVE THE PdGHT
UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON ANY SUBSEQUENT
TERMiNATION OR EXraLATION OF THIS LEASE, OR ANY RENEWAL OR EXTENSION
' HEREOF, OR OF TENANT'S RIGHT OF POSSESSION AS HEREINBEFORE SET FORTH, TO
CONFESS JUDGMENT IN EJECTMENT AS HEREINBEFORE SET FORTH ONE OR MORE
ADDITIONAL TIMES TO RECOVER POSSESSION OF THE PREMISES, TENANT HEREBY
ACKNOWLEDGES THAT BY AGREEING TO THE FOREGOING CONFESSION OF JUDGMENT
AND WARRANT OF ATTORNEY, TENANT WAIVES THE RIGHT TO NOTICE AND A PRIOR
JUDICIAL PROCEEDING TO DETERMINE ITS RIGHTS AND LIABILITIES, AND FURTHER
ACKNOWLEDGES THAT LANDLORD MAY, ON DEFAULT BY TENANT UNDER THE LEASE,
SUBJECT TO SUCH NOTICE REQUIREMENTS, IF ANY, AS ARE HEREIN EXPRESSLY
PROVIDED, OBTAIN A JUDGMENT AGAINST TENANT FOR POSSESSION OF THE PREMISES
WITHOUT ANY OPPORTUNITY OF TENANT TO RAISE ANY DEFENSE, SETOFF,
COUNTERCLAIM OR OTHER CLAIM THAT TENANT MAY HAVE, AND THAT TENANT
KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY ~ GRANTS LANDLORD THE
FOREGOiNG RIGHT TO CONFESS JUDGMENT AND WARICANT OF ATTORNEY AS AN
EXPLICIT AND MATERIAL PART OF THE CONSIDERATION BARGAINED FOR BETWEEN
TENANT AND LANDLORD. TENANT CERTIFIES THAT IT HAS BEEN REPRESENTED (OR
HAS HAD THE OPP~DRTUNITY TO BE REPRESENTED) AT THE SIGNING OF THIS LEASE
AND IN THE GRANTING OF THIS CONFESSION OF JUDGMENT AND WARRANT OF
ATTORNEY BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL,
AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THE CONFESSION OF
JUDGMENT AND WARRANT OF ATTORNEY WITH COUNSEL. TENANT FURTHER
CERTIFIES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND EFFECT OF THE
FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF ATTORNEY. TENANT
FURTHER ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL TRANSACTION, AND
THAT THE RELATIONSHIP BETWEEN LANDLORD AND TENANT CREATED HEREUNDER
IS COMMERCIAL IN NATURE.
(c) IN ANY ACTION OF OR FOR EJECTMENT OR FOR RENT OR OTHER SUMS, IF
LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY
IT OR SOMEONE ACTING FOR IT SETT1NG FORTH THE FACTS NECESSARY TO
AUTHORIZE THE ENTRY OF JUDGMENT, SUCH AFFIDAVIT SHALL BE CONCLUSIVE
EVIDENCE OF SUCH FACTS; AND IF A TRUE COPY OF THIS LEASE (AND OF THE TRUTH
OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED iN SUCH
ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF
ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY
NOTWITHSTANDING. TENANT HEREBY WAIVES AND RELEASES TO LANDLORD, AND
TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR LANDLORD, ALL PROCEDURAL
ERRORS IN ANY PROCEEDINGS TAKEN BY LANDLORD, WHETHER BY VIRTUE OF THE
WARtLANTS OF ATTORNEY CONTAINED IN THIS LEASE OR NOT, STAY OF EXECUTION
AND EXTENSION OF TIME OF PAYMENT, ALL LAWS EXEMPTING REAL OR PERSONAL
PROPERTY FROM EXECUTION AND ALL LIABILITY THEREFOR, AND NO BENEFIT OF
EXEMPTION WILL BE CLAIMED UNDER AND BY VIRTUE OF ANY EXEMPTION LAW NOW
IN FORCE OR WHICH MAY HEREAFTER BE PASSED.
SECTION 19.8 Waivers
Tenant expressly wai~'es:
1. The bene~t of all laws, now or hereafter in force, exempting any goods on the
Premises, or elsewhere, from distraint, levy or sale in any legaI proceedings taken by Landlord to
enforce any rights under this Lease.
2. The benefit of all laws existing now or hereafter enacted regarding any limitation
as to the goods upon which, or the time within which, distress is to be made after removal of goods of
the Tenant or others fi-om the Premises, and further relieves Landlord of the obligation of proving or
identifying the goods distrained, it being the purpose and intent of this provision that all goods of
Tenant, whether upon the Premises or not, shall be liable to distress for rant at any time after Tenant's
default under this Lease, including particularly, but not limited to, those goods removed from the
Premises clandestinely and fraudulently, as defined above in this Lease.
3. The right to issue a writ of replevin for the recovery of any goods seized under a
distress for rent or levy upon an execution for rent, damages or otherwise.
4. The right to delay execution on any real estate that may be levied upon to collect
any amount which may become due under the terms and conditions of this Lease and any right to have
the same appraised, and Tenant authorizes any Prothonotary or clerk to anter a writ of execution or other(,,,,-'~
process upon Tenant's volu..ay waiver and further agrees that said real estate may be sold on a xvrit of
· execution or other process.
5. All rights relating to the Landlord-Tenant relationship under any law, ordinance
or statute, to the extent that they might limit Landlord's right to cause the distrained goods to be sold,
Tenant oow specifically and knowingly authorizes Landlord to sell rely goods distrained for rent at a
public auction sale to be held at any time at least seven (7) days after that distraint without appraisement
and condemnation of the goods, but upon five (5) days' notice to Tenant of the date, place and terms of
sale, including Landlord's right to purchase all or any of the property.
6. If the Shopping Center is located in Pemlsylvania, the right to any notices to quit
as may be specified by the Landlord and Tenant Act of Pennsylvania, Act of April 6, 195l, as amended,
or any similar or successor provision of law, and agrees that the notice provided for in this Lease shall
be sufficient or if no such notice is provided that ten (10) days' notice shall be sufficient in either or any
such case.
ARTICLE 20
SECURITY DEPOSIT
SECTION 20.1 Security Deposit
(a) Landlord acknowledges receipt from Tenant of tile sum set forth in the Indenture of
Le~e to be held ss security for the payment of any rent and all other sums of money payable by Tenant
under this Lease and for the faithful performance of all covenants of Tenant hereunder, the amount of
such security deposit, without interest, shall be refunded to Tenant after termination of the Term,
provided Tenant shall have made all such payments and performed all such covenants. Upon any
default by Tenant hereunder, all or part of such security deposit may, at Landlord's sole option, be
applied on ac(3ount of such default, and thereafter Tenant shall restore the resulting deficiency itl such
security deposit, upon demand. Tenant hereby waives the benefit of any provision of law requiring such
security deposit to be held in escrow or in trust, and such security deposit sball be deemed to be the
property of Landlord and may be commingled with Landlord's other funds.
(b) Landlord may deliver the security deposit to any purchaser of Landlord's interest in the
Premises, ill the event that such interest be sold, and thereupon Landlord shall be discharged from any
further liability with respect to such security deposit, and Tenant agrees to look solely to such purchaser
for the return of such security deposit.
ARTICLE 2l
MISCELLANEOUS
SECTION 21.1 Access by Landlord
Landlord may at all reasonable times, with reasonable prior notice to Tenant, except in the eveot
of an emergency (in which event no prior notice shall be necessary) during the Teml enter to inspect the
Premises and/or may show the Premises and building to others. At any time within ninety (90) days
immediately preceding the expiration of the Term, Landlord shall have the right to show the Premises
and all parts thereof to prospective tenants between the hours of 9:00 A.M. and 9:00 P.M. on any day
except Sunday and any legal or religious holiday on which Tenant sball not be open for business.
SECTION 21.2 Holding Over
In the event of holding over by Tenant after expiration or other temrination of this Lease or in the
event Tenant continues to occupy any part of the Premises after the termination of Tenant's right of
possession, occupancy of the Premises subsequent to such termination or expiration shall be that of a
teoancy at sufferance and in no event for month-to-month or year-to-year. Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of'this Lease and shall pay for its use
and occupancy an amount (on a per month basis without reduction for any partial months during such
holdover) equal to twice the sum of the Fixed Minimum Rent and Additional Rent due for the period
immediately preceding such holding over, provided that in no event shall Fixed Minimum Rent and
Additional Rent during the holdover period be less than the fair market rental for the Premises. No
holding over by Teuant or payments of tunney by Teuant to Landlord after the expiration of the term of
tiffs Lease shall be construed to extend the Teml of the Lease or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise. In addition, the obligation
to pay the amounts set forth above during any such holdover period, Tenant shall be liable to Landlord
For all loss or dmnage, including any consequential damage, which Landlord may suffer by reason of
any holding over by Tenant, and Tenant shall indemnify Landlord against any and all claims made by~
any other tenant or prospe,,,~ve tenant against Landlord for delay by Landlord in delivering possession
of the-Premises to such other tenant or prospective tenant.
SECTION 21.3 Successors/Joint and Several Liability
All rights, obligations and liabilities herein given to or imposed upon, the respective parties
hereto shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers,
legal representatives, successors and assigns of the said pm~ies; and if there shall be more than one
tenant, they shall alt be bound jointly and severally by the terms, covenants and agreements herein. No
rights, however, shall inure to the benefit of any assignee, legal representative, trustee, receiver, legatee
or other personal representative of Tenant unless, the assig~maent to such party has been approved by
Landlord in writing as provided in Section 14.1 (a) hereof.
SECTION 21.4 Quiet Enjoyment
So long as Tenant shall pay the rents herein provided within the respective times provided
therefor, and provided, and so long as Tenant observes and performs all the covenants, terms and
conditions on Tenant's part to be observed and performed, Tenant shall peaceably and quietly hold and
enjoy the Premises for the Term hereby demised without hindrance or intenmption by Landlord or any
other person or persons lawfully claiming by, through or under Landlord, subject, nevertheless, to the
terms and conditious of this Lease. Landlord's liability under this Section shall cease upon a
conveyance by Landlord of the Premises.
SECTION 21.5 Excuse of Performance
Notwithstanding anything in this Lease to the contrary, if Tenant shall be delayed or hindered iu
or prevented from performance of any act required hereunder by reason of any strike, lockout, labor
dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, nfilitary or usurped power,
sabotage, govermnental regulations or controls, failure of power, inability to obtain any material or
service, or Act of God, then performance of sanh act by Tenant shall be excused for the period of sanh
delay; provided, however, the foregoing shall not excuse Tenant fi.om the prompt payment of Fixed
Minimum Rent, Percentage Rent, Tax Rent, Additional Rent or any other payments required by the
temps of this Lease or delay the date on which Tenant's obligation to commence such payments shall
begin. Notwithstanding anything in this Lease to the contrary, Landlord shall not be deemed in default
with respect to the performance of any of the temps, covenants and conditions of this Lease if Landlord's
failure to perform such terms, covenants and conditions is due to any strike, lockout, labor dispute, civil
commotion, warlike operation, invasion, rebellion, hostilities, military or usurped power, sabotage,
governmental regulations or controls, failure of power, inability to obtain any material, service or
finmming, Act of God, fire or other casualty or other cause, whether similar or dissimilar to those
enumerated in this Section, which is beyond the control of Landlord.
SECTION 21.6 Waiver
The waiver by Landlord of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of the same or a waiver of any other term,
covenant or condition herein contained. The subsequent acceptance by Landlord of rent due hereunder
or any or all other moneta~ obligations of Tenant hereunder, whether or not denoted as rent hereunder,
shall not be constraed as a waiver of any preceding breach by Tenant of may term, covenant or condition
of this Lease, other than the failure of Tenant to make the particular payment so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such rent. No covenant,
term or condition of this Lease shall be deelr~ed to have been waived by Landlord, unless such waiver be
in writing and executed by the Landlord.
SECT[ON 21.7 Custom and Usage
Any law, usage or custom to the contrary notwithstanding, Landlord shall have the right at all
times to enforce the covenants and conditions of this Lease in strict accordance with the terms hereof,
notwithstanding any conduct or custom on tbe part of the Landlord in refraining fi.om so doing at any
time or times with respect to the Tenant hereunder or with respect to other tenants of the Shopping
Center. The failure of Landlord at any time or times to enforce its rights under said covenants and
provisions strictly in accordance with the stone shall not be construed as having created a custom in any
way or manner contrary to the specific temas, provisions and covenants of this Lease or as having in any
way or mmmer modified the sanle.
SECTION 21.8 Accord and Satisfaction
No payment by Tenant or receipt by Landlord of a lesseramount than any payment of rent or
Additional Rent herein stipulated shall be deemed to be other than on account of the earliest stipufated/'~
rl~L^~\t ~40~73X2 0705'~3 000 40
rent or Additional Rent thu~ due and payable. Tenant is hereby advised that Landlord may instruct
· Tenant to forward all sums due Landlord to a lock box account maintained by Landlord which will
result in such checks being automatically deposited to Landlord's account without review or inspection
prior to the same being deposited. Accordingly, Tenant agrees that Landlord shall not be bound by any
endorsement or statement on any check or any letter accompanying any check or payment and no such
endorsement, statement or letter shall be deemed an accord and satisfaction, whether such check or letter
is forwarded to Landlord's lock box or directly to Landlord, Agent or elsewhere and Landlord or
Landlord's bank may accept such check or payment without prejudice to Laudlord's right to'recover the
balance of such rent or pursue any other remedy provided in this Lease, at law or in equity.
SECTION 21.9 Creditworthiness of Tenant
Within ten (10) days of receipt of a request therefor from Landlord, Tenant agrees to forward to
Landlord a financial statement of Tenant and/or if applicable, Tenant's guarantor or surety, in foma
satisfactory to Landlord, certified by an independent certified public accountant acceptable to Landlord
and/or Tenant agrees to provide Landlord with written authorization to perform a credit check as to
Tenant on a form accelJtable to Landlord. If the financial or credit rating of Tenam and/or, if applicable,
Tenant's guarantor or surety is not acceptable to Landlord, Landlord shall have the right to cancel this
Lease if Tenant refuses to execute or supply such additional assurances and/or guarantors or sureties as
Landlord shall state as necessary for such acceptance within thirty (30) days after Landlord's request
therefor which request may not be made after delivery of possession. If any such right to cancel is
exercised, this Lease shall thereupon be null and void, each of the parties shall be released from any
other or further liability, any security deposit made hereunder shall be refunded to Tenant without
interest and neither party shall have any liability to the other by reason of such cancellation. After
delivery of possession, Tenant's failure to provide Landlord with a financial statement and/or said credit
check authorization shall constitute an Event of Default hereunder. '
SECTION 21.10 Survival of Obligations
All of Tenant's obligations accruing during the Term pursuant to Sections 2.3, 2.4, 3.1, 3.2, 4.2,
5.30), 7.3, 7.4, 8.3, 10.1 and 21.23 shall survive the expiration or earlier termination of the Tenn.
SECTION 21.11 Entire Agreement
The Indenture of Lease, the Lease Agreement, the Exhibits and Rider, if any, set forth all the
covenants, promises, agreements, conditions, representations, promises and understandings between
Landlord and Tenant concerning the Premises and there are no covenants, agreements, conditions,
representations, promises or understandings, either oral or written, between them other than as herein set
forth. All prior communications, negotiations, arrangelnents, representations, agreements and
understandings, whether oral, written or both, between the parties hereto, and their representatives, are
merged herein and extinguished, this Lease superseding and canceling the same. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and executed by the party against Which
such subsequent alteration, amendment, change or modification is to be enforced. If any provision
contained in any rider hereto is inconsistent with any printed provisions of this Lease, the provision
contained in such rider shall supersede said printed provision. Tenant hereby acknowledges that: (i)
this Lease contains no restrictive covenants or exclusives in favor of Tenant; (ii) this Lease shall not be
deemed or interpreted to contain, by implication or otherwise, any warranty, representation or agreement
on the part of Landlord that any depa~nent store or regional or national chain store or any other
merchant shall open for business or occupy or continue to occupy any Premises in or adjoining the
Shopping Center during the Term or any part thereof and Tenant hereby expressly waives all claim with
respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or
agreement by Landlord either as a matter of inducement in entering into this Lease or as a condition of
this Lease or as a covenant by Landlord.
SECTION 21.12 No Partnership
Landlord does not, iu any way or for any purpose, become a partner of Teuant in the conduct of
its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant. The
provisions of this Lease relating to the Percentage Rent payable hereunder are iucluded solely for the
purpose of providing a method whereby adequate rent is to be measured and ascertained.
SECTION 21.13 Notices
All payments of rent and any and all other monetary obligations of Tenant accruing hereunder,
whether or not denoted as rent, shall be paid to Agent at the address stated in the Indenture of Lease,
antil Tenant is notified otherwise in writing, and a notices given to Landlord hereunder shall be in/'
writiug and forwarded to it at such address, attention: Law Department, postageprepaid, by registered:red/t/
PIIlLA I \1149973L2070593000 41
or certified mail, return recu,pt requested or by nationally recognized expedited delivery service which
· provides proof of delivery. Ali notices to Tenant shall be forwarded to it at tile address set forth in the
Indenfure of Lease by postage prepaid, registered or certified mail, return receipt requested or by
nationally recognized expedited delivery service or by delivery in person at said notice address or at the
Premises, and in the event of a delivery in person, the affidavit of the person making such delivery shall
be conclusive proof of the delivery and of the date and time of such delivery. All changes of notice
address requested by Tenant shall only be valid and binding on Landlord if executed by a duly
authorized officer, partner or owner of the Tenant. All notices shall be deemed to have been given on
the date when deposited in the mail receptacles maintained by the corporation which has been chartered
by the United States Government to operate and deliver the mail as aforesaid or, in the case of notices
delivered by nationally recognized expedited delivery service, when received or in the case of notices
delivered in person to Tenant, when so delivered. Notices by the Landlord may be given on its bebalf
by Agent or by any attorney for Landlord or Agent.
SECTION 21.14 Captions
The captions apl~earing in this Lease are inserted only as a matter of convenience and in no way
~lefine, limit, construe or describe the scope or intent of such sections or articles of this Lease and do not
In any way affect aais Lease.
SECTION 21.15 Tenaut Defined; Use of Pronoun
The word "Tenant" shall be deemed and taken to mean each and every person or party
mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any
notice required or permitted by the terms of this Lease may be given by o;' to any one thereof, and shall
have the same force and effect as if given by or to all thereof. The use of the neuter singular pronoun to
refer to Landlord or Tenant shall be deemed a proper reference even though Landlord or Tenant may be
an ifldividual, a partnership, a corporation, or a group of two or more individuals or corporations. The
necessary grammatical changes required to make the provisions of this Lease apply in the plural number
where there is more than one Landlord or Tenant and to either corporations, associations, partnerships or
individuals, males or females, shall in all instances be assumed as though in each case fully expressed.
SECTION 21.16 Negation of Personal Liability
Notwithstanding anything contained herein to the contrary, Tenant agrees that neither Landlord
nor any partner, officer, director, shareholder, member or employee of Landlord, shall leave any personal
liability with respect to any of the provisions of this Lease and Tenant shall look solely to the estate and
property of Landlord in the land and buildings comprising the Shopping Center of which the Premises
forms a part for the satisfaction of Tenant's remedies, including without limitation, the collection of any
judgment or the enforcement of any other judicial process requiring the payment or expenditure of
money by Landlord in the event of any default or breach by Landlord with respect to any of the terms
and provisions of this Lease to be observed and/or performed by Landlord, subject, however, to the prior
rights of any holder of any Mortgage covering all or part of the Shopping Center, and no other assets of
Landlord or any principal of Landlord shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim and in the event Tenant obtains a judgment against Landlord, tile
judgment docket shall be so noted. This Section shall inure to the benefit of Landlord's successors and
assigns and their respective principals. The references to "Landlord" in this Lease shall be limited to
lnean and include only the owner of the Shopping Center of which the Premises forms a part. In the
event of a sale or transfer of such interest (except a Mortgage or other transfer as security for a debt), tile
"Landlord" initially named herein, or in the case of a subsequent transfer, the transferor, as of the date of
sttch transfer, shall be automatically released from all liability for the performance or observance of any
term, condition, covenant or obligation required to be performed or observed by Landlord hereunder;
and the transferee shall be deemed to have assumed all of such terms, conditions, covenants and
obligations except as to preexisting defaults by Landlord. The covenants and obligations contained in
this Lease to be performed on the part of"Landlord" shall be binding on file Landlord or any transferor
only during the periods in which it is a Landlord hereunder.
SECTION 21.17 Liability of Agent
Kravltz Properties, Inc. in its capacity as Agent, is acting as Agent only and in such capacity
shall not in any event be held liable to the Landlord or to Tenant for the fulfilllnent or non-fulfillment of
any of the terms, covenants or conditions of this Lease or for any action or proceedings that may be
taken by Landlord against Tenant, or by Tenant against Landlord. A~ay waiver of Landlord's liability
hereunder, including any waiver of subrogation rights, shall appIy with equal force and effect of such
Agent.
SECTION 21,18 Effect of ,vernmental Limitation on Rents and Other Charges
, In the event that any law, decision, role or regulation of any govenm'~ental body baying
jurisdiction shall have the effect of limiting for any period of time the amount of rent or other charges
payable by Tenant to any amount less than that otherwise provided pursuant to this Lease, the followiug
amounts shall nevertheless be payable by Tenant: (i) throughout such period of limitation, Tenant shall
remain liable for tbe maximum amount of rent and other charges which are legally payable (without
regard to any limitation to the amount thereof expressed in this Lease except that all amounts payable by
reason of this Section 21.18 shall not in the aggregate exceed the total of all amounts ~vhich would
otherwise be payable by Tenant pursuant to the terms of this Lease for the period of limitation), (ii) at
the termination of such period of limitation, Tenant shall pay to Landlord, on demand but only to the
extent legally collectible by Landlord, any amounts which would have been due fi-om the Tenant during
the period of limitation but which were not paid because of such limiting law, decision, rule or
regulation, and (iii) for the remaining Term following the period of limitation, Tenant shall pay to
Landlord all amounts due for such portion of the Term in accordance witb the terms hereof calculated as
though there had been no intervening period of limitation.
SECTION 21.19 Partial Invalidity; Separate Covenants
If any term, covenant or condition of this Lease or the application thereof to any person or
circumstance shall to any extent, be invalid or unenforceable, the remainder of this Lease or the
application of such term, covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby and each term, covenant and condition of
this Lease shall be valid and be enforced to the fullest extent permitted by law. Furthermore, each
covenant, agreement, obligation and other provision contained in this Lease is, and shall be deemed and
construed as a separate and independent covenant of the party bound by, undertaking or making the
same, and not dependent on any other provision of this Lease unless expressly so provided.
SECTION 21.20 Recording
Tenant shaIl not record this Lease without the written consent of Landlmxi. If Landlord requests,
the parties shall execute and acknowledge a short form of lease for recording purposes which shall be
recorded at Landlord's expense.
SECTION 21.21 Brokerage Commission
Landlord and Tenant represent and warrant that they have had no dealings, negotiations or
consultations with respect to the Premises, the Shopping Center or this transaction with any broker or
finder except Agent and The Daniel Group and that with the exception of Agent and The Daniel Group
no broker or finder called the Premises or any other spaces in the Shopping Center to Tenant's attention
for lease. In the event that any other broker or finder other than Agent claims to have submitted the
Premises or any other space in the Shopping Center to Tenant. to have induced Tenant to lease the
Premises or to have taken part in any dealings, negotiations or consultations with respect to the
Premises, the Shopping Center or this transaction, the party having failed to disclose such contact wiII be
responsible for and will defend, indenmify and save the other party and Agent, harmless from and
against all costs, fees (including without limitation attorneys' fees) expenses, liabilities and claims
incurred or suffered by such party and/or Agent as a result thereof.
SECTION 21.22 Construction/Time of the Essence
It is the intent of the patties hereto that if any term, covenant, condition or agreement of this
Lease is capable of two or more constructions, one or more of which would render the provision void,
and the other or others of which would render the provision valid, then the provision shall have the
meaning or meanings which would render it valid. Although the printed provisions of this Lease were
drawn by Landlord, this Lease shall not be construed for or against Landlord or Tenant but this Lease
shall be interpreted in accordance with the general tenor of the language in an effort to reach the
intended result. Landlord and Tenant agree that time is of the essance with respect to the performance
of the respective obligations set forth in this Lease.
SECTION 21.23 Hazardous Material
(a) As used herein, the term "Hazardous Material" means ally hazardous substance,
hazardous material hazardous waste or toxic substance as such terms are now or hereinafter defined
under any Enviromnental Statutes or any other material, substance, liquid, effluent or product
(including, without limitation, asbestos), the use and/or disposal of which is now or hereafter regulated
by any Environmental Statutes, and/or which now or hereafter is determined by any state, federal or
local govenm~ental authority to be capable of posing a risk of injury to health, safety or property.
(b) Tenant shali __at cause, suffer or permit any Hazardous Material to be brought upon, kept,
· used, generated, manufactured, stored, disposed of, handled, released, or emitted, in or about the
Premises or Shopping Center by Tenant, its agents, employees, contractors or invitees, except that
construction materials (other than asbestos or polycblorinated byphenyls), office equipment, and
cleaning solutions and other maintenance materials that are or contain Hazardous Material may be used,
handled or stored on the Premises, provided such is in de minimis amounts only and is incidental to and
reasonably necessary for the operation and maintenance of the Premises for the use permitted hereunder
and is at all times in compliance with all Environmental Statutes and all other applicable gl~vemmental
requirements. Should any release of any Hazardous Material occur at the Premises, Tenant shall
immediately contain, remove and dispose of same in accordance with Section 21.23(c) and (d) hereof.
(c) If the Premises or any equipment, trade fixtures, leasehold improvements, or other
meclaanical apparatus in the Premises or on the Shopping Center contains any Hazardous Material
placed there by Tenant or Tenant's agents, servants, contractom or employees, or released by Tenant or
Tenant's agents, servants, contractors or employees, then Landlord, at its election, shall have the right to
(i) cause Tenant to comply with all Environmental Statutes and to contain, renmve and properly dispose
of same, and any material that was contaminated by the Hazardous Material, off the Shopping Center
and to remedy and mitigate all threats to human health or the environment relating to such Hazardous
Material, all of the foregoing being "Remediation", all at Tenant's sole cost and expense and in
compliance with Environmental Statutes and the provisions befool, or (ii) comply with all
Environmental Statutes or perform the Remediation itself and to respond to, assess or remediate any
condition posed by the Hazardous Material and all threats to human health or tbe environn~ent relating to
such Hazardous Material, in which event Tenant shall reimburse Landlord, on demand, for all costs
incurred by Landlord in doing so and securing the certificates referred to below.
(d) If Landlord requires Tenant to perform any Remediation, Tenant shall retain the services
of an environmental consultant and an environmental contractor, both of whom must be previously
approved in writing by Landlord and shall have substantial experience in performing such Remediation.
Tenant shall submit to Landlord for approval the insurance certificates of Tenant's environmental
consultant and environmental contractor, a written Remediation plan and detailed plans and
spe~ificafions which shall disclose, without limitation, the dates on which such work is to be performed,
the steps to be taken to protect the public in the Shopping Center, and the HVAC, water, sanitary and
storm systems from contamination during the Remediation process and full compliance with all
Environmental Statutes. No work disclosed in the Remediation plan shall be commenced until Landlord
has approved all aspects of such Remediation process and Tenant shall only perfoma or pemfit to be
perfommd such work in strict accordance with the process as approved by Landlord. Tenant shall close
for business while such work is being perfomaed. Landlord reserves the right to monitor
performance of such work from time to time and, if Landlord believes that such work is being done in a
rammer which permits Hazardous Material to escape from the Premises or violates any applicable
Environmental Statutes or Remediation process approved by Landlord, or otherwise constitutes an
unsafe condition, at Landlord's direction, Tenant shall immediately cease such work until such problem
has been Colxected to Landlord's satisfaction. Tenant shall replace any contaminated equipmant or
materials removed from the Premises with new equipment or material performing the same function. If
asbestos is removed from the Premises, prior to replacing the asbestos with an approved fire retardant
material, Tenant shall cause its environmental consultant to perform an air quality test in the Premises
and to certify the results thereof in a letter directed from such environmental consultant to Landlord and
Agent. Tenant shall not insfall such fire retardant or reopen for business, until the results of such air
quality tests are accepted by Landlord. Tenant shall perform such further acts as may be required to
make such results acceptable to Landlord. Upon Landlord's acceptance of the air quality test, Tenant
shall install the fire retardant material and promptly reopen for business.
(e) If Landlord elects to perform the Remediation of the Hazardous Material from the
Premises, Landlord shall so notify Tenant of Landlord's anticipated commencement date of such work
and Tenant shall close for business not later than such date and remain closed until notified by Landlord
to reopen whereupon Tenant shall promptly reopen for business. If Landlord performs such work it
shall do so in compliance with all Enviromnental Statutes. If directed to do so by Landlord, Tenant shall
remove such of its merchandise, personal property and trade fixtures as shall be required by Landlord
for the completion of such work or Landlord, its contractors and subcontractors, may relocate the same
within the Premises or elsewhere in the Shopping Center during fae performaoce of such work; neither
Landlord, Agent, nor their contractors or subcontractors shall be liable to Tenant in any regard for any
damage to or loss of such items or for any other acts occurring in the Premises during the performance
of such work, except in regards to Landlord's negligence or the negligence of its contractors or
subcontractors.
(0 Tenant shall provide to Landlord copies of the following, forthwith after each shall have
been submitted, prepared or received by Tenant or any occupant of the Premises: (i) all applications and
associated materials submitted to any governmental agency relating to any Environmental Statute; (ii)f
PI IILAlU 149973~2 070593.000 44
all notifications, registratk,.,s, reports and other documents, and supporting infonnation, prepared,
· submit'ted or maintained in connection with any Environmental Statute; (iii) all permits, licenses,
approvals, and antendments or modifications thereof, obtained under any En;'irom~'`ental Statute; and
(iv) any correspondence, notice of violation, summons, order, complaint, or other document received by
Tenant or any occupant of the Premises pertaining to compliance with or liability under any
Euvironmental Statute.
(g) Tenant, without the prior written consent of Landlord, shall not install or cause the
installation of any above or underground storage tank or related piping (hereinafter the "Tank") at the
Pi'cruises or Shopping Center. If Tenant does install or cause the installation of any such Tank, Tenant
shall comply with all applicabl~ laws as to its installation, maintenance, operation and closure, including
any requirement for the maintenance of liability insurance with respect to risks associated with any such
Tank. If such liability insurance is required to be maintained, Landlord shall be named as an additional
insured therannder and the provisions of Article 11 hereof shall apply thereto· Upon termination of the
Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole cost and expens.e,
remove any Tank insta, lled by Tenant and any associated contaminated material and perform all tests
required by Landlord and any required by applicable Environmental Statutes aud provide Landlord and
all rcquired government agencies with the results of such tcsls in such Form as rcqttircd by Landlord or
as required by Environmental Statutes, or Landlord may perform such removal and tests and Tenant
shall reimburse Landlord, on demand, for all costs i~/curred by Landlord in doing so.
(h) If the use of the Premises by Tenant or any operation or activity conducted at the
Premises during the Term is such as requires, under any present or future Enviroranental Statute, the
obtaining of an approval or consent (herein called an "Enviromnental Approval") by any governmental
agency, or an acknowledgment by such agency that such approval or consent is not required, (i) in order
to change or transfer ownership of the Premises or any interest in Landlord or in any entity which
directly or indirectly controls Landlord, (ii) in order to change or transfer Tenant's interest in this Lease
or any interest in Tenant or in any entity which directly or indirectly controls Tenant or (iii) in
connection with: (a) cessation of all or any operation or activity at the Premises for any reason or (b) a
change in or transfer of any operation or activity at the Premises or (c) the expiration or temfination of
this Lease (each of the transactions and occurrences referred to in the foregoing clauses (i), (ii) or (iii)
being hereinafter called a "Change"), Tenant, at Tenant's sole cost and expense, shall, in cmnpliance
with all Environmental Statutes, apply for and, prior to the Change, deliver to Landlord a copy of the
required Enviromnental Approval or acknowledgment and Tenant shall perform all remedial actions
reqnired by such governmental agency for the issuance of the Environmental Approval in whole or in
part by reason of Tenant's use of the Premises or operations or activities at the Premises during the
Term; provided that as to any Change which is a change or transfer of ownership of the Premises or of
an interest in Landlord or in any entity wlfich directly or indirectly controls Landlord, Tenant shall
instead (i) promptly comply with any request of Landlord to provide such information, statements or
affidavits as to operations and activities at the Premises during the Term, and as to the use of the
Premises by Tenant, as may be determined by Landlord to be necessary, (ii) either promptly perfo~an or,
at the option of Landlord, reimburse Landlord within fifteen (15)~ days' after demand for Landlord's costs
of any Remediation and all remedial actions required by any govermnental agency for issuance of the
Environmental Approval and (iii) pay or reimburse Landlord for all other costs and expenses which are
att[d~utable to the existence of Tenant's tenancy or to Tenant's use of the Premises or to
· y peranon or
activity at the Premises during the Term and which were incurred to obtain such required Envirmunental
Approval or acknowledgment. Tenant covenants, represents and warrants that any application,
statement or information made or provided by or through Tenant pursuant to this subsection shall be
accurate, tree and complete.
(i) Tenant agrees to permit Landlord and its anthorized representatives to enter, inspect and
assess the Premises at reasonable times for the purpose of determining Tenant's compliance with the
provisions of this Section 21.23 and to perform any Remediation pursuant to provisions of tbis Section
21.23. Such inspections and assessments may include obtaining samples and performing tests of soil,
surface water, groundwater or other media.
SECTION 21.24 Subnrission of Lease to Tenant
THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO
BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN O~PTION FOR THE LEASING OF
THE PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER
PARTY UNTIL THE EXECUTION THEREOF BY LANDLORD AND THE DELIVERY OF AN
EXECUTED ORIGINAL COPY THEREOF TO TENANT OR ITS REPRESENTATIVE.
45
SECTION21.25 Expenses, :Enforcement of Lease
, If during the Term, Landlord incurs any expenses whatsoever, including but not limited to
attorneys' fees, relating to the provisions of this Lease or any default hereunder, whether or not Landlord
institutes any action or proceeding against Tenant, Tenant agrees to reimburse Landlord for all such
expenses. Notwithstanding any provision of this Lease to the contrary, the term "Attorney's Fees"
wherever used in this Lease shall mean only the reasonable charges .for services actually perfonned and
rendered by independent, outside legal counsel.
SECTION 21.26 Sl~0pping Center Lease
It is understood and agreed that this is a "lease of real property in a Shopping Center" as such
term is used in the Bankruptcy Code, and that neither Tenant's ir~terest in this Lease, nor in any estate
created hereby shall pass to any trastee or receiver or assignee for the benefit of creditors or otherwise
except as may be specifically provided therein. Nothing contained in this Section 21.26 shall be deemed
in any manner to limit Landlord's rights and remedies under the Bankruptcy Code, as presently existing
or as may be hereafter amended.
SECTION 21.27 Performance of Landlord's Obligation by Mortgagee
Tenant shall accept performance of any of Landlord's obligations hereunder by any Mm~tgagee
of Landlord.
SECTION 21.28 Waiver of Jury Trial
TENANT HEREBY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THE LEASE WOULD BE BASED UPON DIFFICULT AND
COMPLEX ISSUES, AND THEREFORE, KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LEASE OR ITS
NEGOTIATIONS OR RELATIONSHIP WITH LANDLORD. TENANT HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR AGENT OF LANDLORD (INCLUDING ITS COUNSEL) HAS
REPRESENTED EXPRESSLY OR OTHERWISE, THAT LANDLORD WOULD NOT IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL. TENANT ACKNOWLEDGES THAT LANDLORD HAS BEEN INDUCED TO ENTER
INTO THE LEASE WITH TENANT BY INTER ALIA, THE PROVISIONS OF THIS PARAGRAPH.
TENANT FURTHER CERTIFIES THAT IT HAS BEEN REPRESENTED BY (OR HAS HAD THE
OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LEASE AND IN THE
MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH
COUNSEL. TENANT FURTHER CERTIFIES THAT IT HAS READ AND UNDERSTANDS THE
MEANING AND EFFECT OF THIS WAIVER.
SECTION 21.29 Applicable Law
THIS LEASE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE 1N WHICH THE
SHOPPING CENTER IS LOCATED, AND TENANT HEREBY AGREES TO THE JURISDICTION
OF ANY STATE OR FEDERAL COURT LOCATED WITHIN SAID STATE, OR SUCH OTHER
VENUE AS LANDLORD CHOOSES, AND TENANT AGREES THAT ALL SERVICE OF
PROCESS MAY BE MADE BY CERTIFIED MAIL DIRECTED TO TENANT AT TENANT'S
ADDRESS SET FORTH ABOVE, AND SERVICE SO MADE WILL BE DEEMED TO BE
COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN DEPOSITED IN THE
UNITED STATES MAILS, POSTAGE PREPAID; PROVIDED THAT NOTHING CONTAINED
HEREIN WILL PREVENT LANDLORD FROM BRINGING ANY ACTION OR EXERCISING ANY
RIGHTS AGAINST ANY SECURITY OR AGAINST TENANT INDIVIDUALLY, OR AGAINST
ANY PROPERTY OF TENANT WITHIN ANY OTHER STATE OR NATION TO ENFORCE ANY
AWARD OR JUDGMENT OBTAINED IN THE VENUE PROVIDED ABOVE, OR SUCH OTHER
VENUE AS LANDLORD CHOOSES. TENANT WAIVES ANY OBJECTION TO VENUE AND
ANY OBJECTION BASED ON A MORE CONVENIENT FORUM IN ANY ACTION INSTITUTED
HEREIN.
SECTION 21.30 Construction Security Deposit
(a) Prior to the cotnmencement of the initial construction of the Premises, and from time to
time thereafter prior to the commencement of any material renovations or alterations to the Premises, the
Tenant or Tenant's general contractor shall be required to give Landlord a Two Thousand Five Hundred
Dollar ($2,500.00) construction security deposit, in the form of a certified check. The constructcal ~,--~
m,~^ m ~409~,a 070s930oo 46
security deposit is intended ko secure the proper performance of all portions of Tenant's Work which are
· either'visible from the enclosed mall or considered by Landlord, iu its sole and reasonable judgment, as
having a possible adverse impact on portions of the Shopping Center that are maintained by Landlord
(such portions of Tenant's Work, which include, without limitation, Tenant's storefront and Tenant's
HVAC, sprinkler, electrical and plumbing systems, are hereinaftar referred to as "Tenant's Escrow
Work"). Landlord shall uot be required to deposit the construction security deposit into an interest
bearing account. Also, in the event the construction security deposit is posted by Tenaut's general
cnntractor, Tenant shall indemnify and hold Landlord harmless from any claims made by Teoant's
general contractor against Landlurd in connection with the construction security deposit.
(b) If Tenant's Escrow Work meets the standards set forth in Tenant's approved plans and
Landlord's design criteria, the full amount of the construction security deposit will be returned to
Tenant. However, f Tenant's Escrow Work does not meet the standards set forth in Tenant's approved
plans and Landlord's design criteria, Tenant will be notified to make the required modifications before
the construction security deposit is returned. These modifications must be completed within thirty (30)
days after Landlord's ir~stmctions, to the reasonable satisfaction of Landlord. If the modifications are
not completed within the aforesaid thirty (30) day period to Landlord's reasonable satisfaction, then
Landlord, at its option, may hire an independent contractor to complete the modifications and Landlord
will deduct the costs of said modifications from the constraction security deposit and will pay the
independent contractor said costs out of the construction security deposit. A twenty (20%) pement
administrative charge will be added to the independent contractor's invoice to reimburse Landlord for its
work, which administrative chargn will also be deducted from the construction security deposit. The
balance of the construction security deposit, if any, will be returned to Tenant.
(c) In the event the total cost of said work by the indepeudent contractor and Landlord
exceeds the amount of the construction security deposit, Tenant shall reinthurse Landlord the amount of
such total cost which exceeds the amount of the construction security deposit within thirty (30) days of
Te aant's rece pt of an invoice therefor. Landlord shall also be permitted to pursue Tenant for collection
of said costs pursuant to the terms and conditions of the Lease. The foregoing provision with respect to
the construction security deposit is in addition to, and not in lieu of, Landlord's other rights and
remedies under this Lease.
SECTION 21.31 lint entinnally Omit ted]
SECTION 21.32 Satellite Dish
(a) Io the event Landlord makes available a satellite disb for the general use of tenants of the
Shopping Center during the Term, Tenant shall be permitted to access such satellite dish at Tenant's sole
cost and expense and in accordance with the terms and conditions of the provider of the satellite dish.
Landlord makes no representation or warranty whether the satellite dish will be compatible with
Tenant's transmitting or receiving systems or that Landlord will continue to provide same for the
duration of the Tenn.
(b) Tenant shall defend, indemnify and save Landlord hamdess fi-om and against any and all
claims, actions, damages, liability and expense in connection with Ioss of life, bodily injury, personal
injury and/or property damage arising from or out of the use by Tenant or Tenant's agents, contractors,
sorvants or employees of the satellite dish and related equipment.
SECTION 21.33 Adjustment of Square Footage
In the event that the actual square footage of the Premise~ When fully constructed (herein
ferred to as As-Built Square Footage") shall be d ffarent from the square footage as set forth after the
words "Total Area" in Paragraph A of the Indenture of Lease (herein referred to as "S u
q are Footage ),
such "As-Built Square Footage", as accurately determined by Landlord's architect or engineer, sball be
the area of the Premises for all purposes of the Lease, and the Fixed Minimum Rent and Percentage Rent
Gross Sales Base shall for all purposes heroin be those amounts which bear the same relationship to the
Fixed Minimum Rent and Pementage Rent Gross Sales Base berein stated as the actual As-Built Square
Footage bears to the Square Footage.
47
LANDLORD HEREBY RESERVES THE RIGHT, AT ANY TIME AND FROM TIME TO TIME,
TO ALTER OR OTHERWISE MODIFY THE LOCATIONS AND/OR DIMENSIONS OF ALL
BUILDINGS, PARKING AREAS, ROADS, ENTRANCES, EXITS. MALLS AND OTHER
FACILITIES SHOWN ON THIS EXHIBIT "A", TO PLACE IN THE MALLS, COURTS, ~
CORRIDORS AND OTHER COMMON AREAS OF' THE SHOPPING CENTER, LANDSCAPING:,
DECORATIVE ITEMS, AND STRUCTURES, AND AREAS FOR RETAILS SALES AND
PROMOTIONAL ACTIVITIES. AND TO CONSTRUCT. LEASE. OPERATE AND MAINTAIN
BUILDINGS, STRUCTURES. AND OTHER FACILITIES NOT SHOWN ON THIS EXHIBIT "A",
PROVIDED. HOWEVER, THAT LANDLORD DOES NOT VIOLATE ANY RIGHTS EXPRESSLy
RESERVED TO TENANT IN THIS LEASE.
LANDLORD HEREBY RESERVES THE RIGHT. AT ANY TIME AND FROM TIME TO T)ME. TO ALTER OR OTHERWtSE MODIFY THE
LOCATIONS AND/OR DIMENSIONS OF ALL BUILDINGS, PARKING AREAS, ROADS, ENTRANCES. EXITS. MALLS AND OTHER
FACILITIES SHOWN ON THIS BXHIRIT "A". TO PLACE IN THE MALLS, COURTS. CORRIDORS AND OTHER COMMON AREAS OF
THE SHOPPING CENTER, LANDSCAPING, DECORAT/V~ ITEMS, AND STRUCIUR[$, AND AREAS FOR REIAIL SALES AND
PROMOTIONAL ACTIV)TIES, AND TO CONSTRUCT, LEASE, OPERATE AND MAINTAIN BUILDINGS, STRUCTURE~. AND OTHER
FACILITIES NOT SHOWN ON THIS EXHIBIT "A", PROVIOBO HOWEVER, THAT LANDLORD DOES NOT VIOLATE ANY RIGHTS
EXPRESSLY RESERVED TO TENANT IN THIS LEASE.
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EXHIBIT "B"
SIGN REGULATIONS
(a) The purpose of these regulations is to encourage and deve/op creative and diversified
slglage for Tenant s store n comp anco w h the fo owing criteria w~ ca shall in any eveut be limited
by tile provisions of Section 8.1 of the Lease.
l. Wording of the signs shall be limited to Tenaut's pemlitted store or trade name.
Tanant's customary signature or logo, hallmark, insignia, or other trade identification will be permitted
only if itl conformity with these sign regulations, and provided such contain no product advertising.
2. Signs shall consist of individual letters and not of box type unless approved by
L ndlord at Landlord s sole d~scretmn. Exposed lamps, signs of the flashing, blinking or animated type
are not permitted.
3. The size of all signs shall be limited and shall be in scale and harmony with the
Shopping Center. The lettering on Tenant's sign shall not exceed the following limitations:
(i) Height:
a) Letters of one (I) size shall be consistent in style and size: 16"
high maximum, up to 2V~ thick, unless other,vise approved, and pin mounted. Tile face of all letters
must be in the same plane. Pin projections are not to exceed 1" to the back face of letters.
b) If letters of two (2) sizes are desired then they shall be consistent in
style. Capital or upper case letters are limited to a maximum height of 18" and lower Case letters are
limited to 12". Approval by Landlord of any deviations from this criteria shal be at Landlord's sole
discretion.
(ii) Area - No lettering shall be located within two feet (2') of any adjacent
neutral pier or corridor. Signage shall be limited to 2/3rds of the length of the storefront width with a
maximum length of sixteen feet (16') and shall temfinate a nrinimum of twenty-four inches (24") from
the demising pier face. The location of the lettering within the permitted sign area shall be such as to
preseut an orderly appearance of all of the signs of all the tenants in the Shopping Center, taken as a
composite or panorama of signs.
4. Printed signs on storefronts or show windows are prohibited with the exception of
small-scale signs or logo's which are neatly lettered on the glass of the storefront.
5. Subject to compliance with all applicable code requirements, public safety decals
on glass in miuimum sizes maybe used.
6. Paper signs, stickers, banners or flags may not be used by Tenant.
7. An exterior sign (one located on the outside of Tanaut's rear wall) shall be
permitted only with Landlord's prior written approval and shall be limited to those tanants authorized by
Landlord to have a direct rear customer entrance from the parking area. Such signs shall be subject to
Landlord's sole discretion as to design, size and location.
8. No exposed raceways, ballast boxes or electrical transformers will be permitted.
9. Sign cnn~pany names or stamps shall be concealed (applicable ordinances and
codes permitting).
permitted.
I 0. No exposed sign illumination and no flood lighting of signs or storefronts shall be
11. No permanent or temporary window signs fastened to the interior or exterior of
the show window shall be permitted except for small signature or identification signs lettered directly nn
the glass, not over four and oue-halfinches (4~) in height.
12. No more thau one store sign may be installed on ~ach Shopping Center fi'ontage
in which one or more customer entrances are located. If Tenant has Shopping Center frontage witli a
customer entrance ou each level of the Shopping Center, two sigus may be installed, one nn each level
of the Shopping Center. If the Premises is a "comer" store, eveu though a custmner entrance is not
Iocated on each frontage, two store signs may be installed, one on each Shopping Center frontage of the
Premises. The use oflogo's is also eucouraged. .
13. Maxi~,_,m brightness allowed for interior signs ~vhich front on the enclosed mall
·will be,one hundred (100) foot lamberts taken at the letter face.
I4. No portion of any sign shall project more than four inches (4") beyond the
storefront unless approved with a storefront pop-out.
15. Signs and identifying marks shall be placed entirely within the boundaries of the
Premises with no part higher than the neutral curtain wall space above the storefront. The I?ottom of any
projecting sign shall .not be located closer than eight feet (8') to the finished floor.
16. Signs for kiosks, promotional displays or for shows will in every instance require
the written approval of the Landlord.
17. Tenant shall comply with the requirements of all applicable codes, and/or local
ordinances and obtain local government approval whan required by code.
18. &Il signs must be approved by Landlord's representative.
19. No wood blocking or flannnable construction material is to be used in the
attachment of any sign material above the storefront.
20. No signage shall be installed on slanted bulkheads unless expressly approved by
Landlord, which shall fie at Landlord's sole discretion.
(b) Tenant shall submit drawings for Tenant's signs and other methods of identification.
Notwithstanding the fact that such signs and other methods of identification are in compliance with the
foregoing criteria, no such sign or other method of identification shall be installed by Tanrest without
Landlm'd's prior written approval of their size, type, location, quality and aesthetic properties.
(c) Should there be a conflict between these sign regulations and tbose in the Tenant Criteria
Manual, the Tenant Criteria Manual shall take precedence. Changes to tbe requirements of the Tenant
Criteria Manual shall be at Landlord's sole discretion.
EXHIBIT "C"
ELECTRICITY SCHEDULE
(a) It is intended by Landlord and Tenant that Tenant's cost of electricity be charged as
Additional Rent in the rent reserved in the Lease: Since the use characteristics of Tenant's electrical
equipment and fixtures are not yet known, it is not presently possible for Landlord and Tenant to agree
upon the amount to be included as Additional Rent on account of such cost of electricity., For that
reason, the rent presently set forth in the Lease does not include the component amount for such cost of
electricity. This Electricity Schedule sets forth Landlord and Tenant's agreement as to the method by
which the amount of the Additional Rent related to Tenant's cost of such electricity will be ultimately
fixed. Landlord and Tenant, intending to be legally bound hereby, agree as follows:
1. No later than twenty (20) days after the date hereof, Tenant shall furnish Landlord
with such information as Landlord or Landlord's electrical engineer may reasonably require in order to
estimate the cmmected load which will be used by all of Tenant's electrical fixtures, appliances and
equipment ("Tenant's Electrical Installations") in the Premises. Based on such infomaation, Landlord or
Landlord's electrical engineer shall make an estimate of the annual total of average monthly charges (the
"Electricity Component") which Tenant would other,vise be required to pay to the public utility or
public authority then furnishing such electricity to the Shopping Center if, on such date, such electricity
were being furnished directly to Tenant as a retail customer of the aforesaid public utility or public
authority mid were not being furnished by Landlord; provided, however, in nn event shall such estimate
be based on less than five (5) watts per square foot multiplied by three hundred (300) Equivalent Full
Load Hours per month (the "Minimum Usage"). Landlord shall notify Tenant, in writing, of the amount
of the Electricity Component and Tenant agrees that the Electricity Component shall be paid, as
Additional Rent, in equal monthly installments together with the monthly installments of Fixed
Minimurn Rent as provided for in the Lease. For the purpose of determining the Electricity Component,
the words "charges which Tenant would otherwise be required to pay", shall be deemed to include
within their meaning, in addition to the rate for such service (which shall include any adjustment under
paragraph 5 hereof), all fuel adjustment charges, taxes, surcharges and all other stuns regardless of how
denoted which Tenant, as a retail customer, would be required to pay to the public utility or public
authority to obtain electricity service whether such utility retains such charge, tax, surcharge or other
sum, or is required to pay all or any part thereof to any government, taxing authority or other
governmental or quasi-governmental agency or authority. For the purpose of Section 7.3 of the Lease,
in determining Landlord's cost of furnishing electric service to the enclosed mall, such cost will he
determined in the same manner and subject to the same adjustments as Tenant's Electricity Componeut.
2. At any time after the expiration of one (I) year from the date of the notice referred
to in Paragraph l, and from time to time thereafter, if, in Tenant's judgment, Tenant's Electrical
Installations bave a lower connected load or lower demand factor or are used for a lesser number of
hours than would justify the Electricity Component established by Landlord, Tenant shall be entitled to
request a reduction of the Electricity Component. If Landlord m~d Tenant do not agree upon the amount
of such reduction, the parties hereto agree that an appraisal shall be made by an independent third party
(the "Umpire") mutually acceptable to Landlord and Tenant. The Umpire shall be duly qualified in
tenns of professional education and experience so as to be competent to determine, as an expert,
whether, as of the date of the request for a reduction, based upon the criteria set forlh above, the
Electricity Component is in excess of the annual amount of the charges which Tin,ant would otherwise
be required to pay to the public utility or public authority furnishing electricity to the Shopping Center,
if, as of the date of the request for a reduction, such electricity were being furnished directly to Tenant as
a retail customer of the aforesaid public utility or public authority and were not being furnished by
Landlord. If, within thirty (30) days after a failure by the parties to agree upon the amount of the
reduction, Landlord and Tenant cannot agree upon an Umpire, then Landlord and Tenant shall promptly
arbitrate the amount of such reduction before the American Arbitration Association (the "Arbitrator"), in
accordance with the rules of said Association including, but not limited to, those roles regarding the
manner of selection of the arbitrators, at such office of said Association as the parties may mutually
agree upon, or in the absence of such agreement, at the offices of said Association in the City of
Philadelphia, Commonwealth of Pennsylvania. The aforesaid decision of the Umpire or Arbitrator (as
the case may be) shall set forth (a) whether the Electricity Component in effect on the date of Tenant's
request for reduction exceeds, is equal to, or is less than the annual amount of charges which Tenant
would otherwise be required to pay as a retail customer of the aforesaid public utility or public authority
if on such date the same were not being furnished by Landlord, and (b) if more than or less than such
annual amount of the charges which Tenant would otherwise be required to pay, as aforesaid, the
amount of such excess or deficiency. The decision of fl~e Umpire or Arbitrator (as the case may be)
shall be binding upon both parties and not subject to appeal. Notwithstanding Tenant's actual usage or
anything else set forth herein to the contrary, in no event shall Tenant's usage be deemed to be less than~
the Minimum Usage.
3. Tenant reciprocally agrees that, if at any time and from time to time, in
· Landlord's judgment, the Electricity Component is lower than would be justified by the connected load
or den~and factor or number of hours used by Tenant's Electrical Installations, Landlord may increase
the Electricity Component to an amount which would be so justified, which increase shall be effective
thirty (30) days after notice thereof to Tenant; provided, however, Tenant shall have a right to request a
reduction in such increase in accordance with the procedure provided in paragraph 2 above.
4. · The cost of any such appraisal or arbitration shall be shared equally by Landlord
and Tenant; provided, however, that if either party requests an appraisal prior to twelve (12) full months
after the effective date of the last preceding appraisal or arbitration, as the case may be, the cost of such
appraisal or arbitration shall be paid for by the party requesting an appraisal. In each case, upon
completion of any appraisal or, if necessary, an arbitration, the Electricity Cornponent (and each
monthly installment thereof) shall be adjusted by the amount, if any, of the excess or deficiency so
determined and any change in the Electricity Component shall beconae effective as of the first day of the
first full calendar month following the month in which the demmtd for the appraisal was made.
5. If, from time to time after the Conunencement Date of the Term, the electrical
charges which Tenant would otherwise be required to pay if it were a retail customer of the public utility
or public authority furnishing electricity to the Shopping Center, as aforesaid, shall be increased or
decreased, the parties agree that the Electricity Component in effect at such time (and each monthly
installment thereof) shall be increased or decreased to the same extent, such increase or decrease to
become effective as of the effective date of any such increase or decrease. In the event Landlord is
required to pay any tax, surcharge or other sum, regardless of how denoted, which is or are designed to
discourage, limit or in any other manner decrease or control the use of energy, the Electricity
Component (and each monthly installment thereof) shall be increased by an equitable proportionate
share of such tax, surcharge or other sum.
6. Notwithstanding any disagreement between Landlord and Tenant with respect to
the amount of Tenant's Electricity Component, Tenant agrees to pay to Landlord the full amount
detemfined in accordance with Landlord's determination and shall continue to pay such amount during
the pendency of the proceedings referred to in paragraphs 2 and 3 above. In the event it shall be
subsequently determined that Tenant has overpaid the Electricity Component, Landlord shall refund to
Tenant the full amount of such overpayment within thirty (30) days after such determination is made.
Furthermore, at any time after the date hereof, Landlord shall have the right (but not the obligation) to
change the method of computing the amount of electricity consumed by Tenant in the Premises, from
the estimated basis set forth above to the actual usage of Tanant, as determined by a meter, and the cost
of electricity actually consumed shall be the cost which Tenant would otherwise be required to pay as a
retail customer of the public authority or public utility then furnishing electricity to the Shopping Center.
Each month in the Term, Tenant shall pay to Landlord such charges for electricity ss Additional Rent.
Tenant shall also be responsible for the costs and installation of such an electric meter.
EXHIBIT "D"
LANDLORD'S CHARGE RATE ADJUSTMENT SCHEDULE
(a) All of the terms set forth herein shall have the same meaning as set forth in the Lease to
which this Exhibit is attached to and made a part of. The esfiinated annual HVAC Charge, as more
particularly set forth in the Indenture of Lease and Article 12 of the Lease, shall be paid by Tenant to
Landlord as Additional Rent in twelve (12) equal monthly installments, subject to adjustment~as set forth
herein, and shall be paid in advance on or before the first day of each calandar nmnth during the Tem~
without demand and without any setoff or deduction. The HVAC Charge shall be calculated and
adjusted in accordance with the following:
1. HVAC CHARGE.
(i) Tenant covenants and agrees to pay to Landlord an annual fee (in equal
monthly installments) for its share of the costs and expenses relating to the availability and use of the
system servicing Tenant's Premises, which system shall consist of all Shopping Center infrastructure
improvements necessary to provide one or more of the following: cooling, he~ting or ventilation (herein
collectively called the "System"). The System shall be provided to Tenant in such manner and in
accordance with the terms and provisions as set forth within Landlord's "Tenant Mechanical Design
Criteria", which is part of Landlord's "Design Criteria", as mom particularly set forth in Article 4 of the
Lease. The System shall not include any service or distribution system within Tenant's Premises, which
shall be the responsibility of Tenant, and shall be subject to Landlord's approval as more particularly set
forth in the Lease.
(ii) Such costs and expenses shall include all costs and expenses relating to the
availability, operation, maintenance, repair and replacement of the System, including, without linfitation,
(i) a fixed charge for providing the System to service Tenant's Premises, calculated at the annual rate of
Fifty Cents ($0.50) per square foot of the Tenant's Premises, multiplied by the "Load Factor" (the tema
"Load Factor" is defined in Paragraph 2 below while such fixed charge, as multiplied by the Load Factor
is herein called the "System Charge") and (ii) a variable charge for the costs and expenses of fuel, water,
electricity, direct and indirect personnel costs for personnel who operate and maintain the System, the
operation, maintenance, repair and replacement costs and expenses for equipment and parts thereof,
supplies, contracted services, and an administrative fee of fifteen percent (15°/,) of all such costs and
expenses (exclusive of such administrative charge and the System Charge), all of the foregoing costs and
expenses set forth in subpart (ii) of this sentence being herein called the "Service Charge". There shall
be no duplication of any of the charges which comprise any part of the Service Charge with any
Additional Rent or other charges Tenant may be required to pay Landlord under the terms and
conditions of the Lease. In addition, for the !3urposes of calculating the Service Charge, the electricity
costs shall be deemed to mean the charge for electricity for the System computed at the rate for similar
service and usage established by the public utility or municipal authority then furnishing electricity to
the area in which the Shopping Center is located, plus ail fuel adjustment charges, taxes, surcharges and
all other sums regardless of how denoted which are required to be paid to obtain such service, whether
the party supplying the same retains such charge, tax, surcharge or other sums or is required to pay all or
any part thereof to any governmental or quasi-governmental agency 6r'authority or taxing authority.
(iii) Tenant's share of the Service Charge shall be determined by nmltiplying
the Service Charge by a fraction, the numerator of which shall be the square footage of Tenant's
Premises, hereinafter called the "Premises Floor Area", and the denominator of which shall be the sum
of the total leased and occupied square footage of floor area serviced by the System, plus the total
square footage of floor area in the common areas directly serviced by the System, such denominator
being herein called the "Serviced Area." Tenant's share of the Service Charge shall be adjusted in
accordance with Tenant's "Load Factor" (defined in Paragraph 2 below). Therefore, a summary of the
formula to calculate Tenant's share of the Service Charge is as follows:
($) Service Charge x (Premises Floor Area/Square Footage of Serviced Area) x Load Factor =
($) Tenant's share of the Service Charge.
(iv) For the purposes of determining the square footage of Serviced Area for
this calculation, Landlord's engineer shall determine which comlnon areas are directly serviced by the
System. For purposes of this calculation, the directly serviced common areas shall be treated as if the
same were a tenant of the System and shall be hilled accordingly except that such common areas shall
pay the Service Charge only and shall not pay the System Charge, and said bill for the common areas
shall be an Operating Cost pursuant to the terms of Section 7.3 of the Lease. For purposes of this
cal~:ulation, "common areas" shall include those office areas being used by Landlord in its operation and
maintenance of the Shopping Center.
(v) .andlord shall estimate the amount ol -,e Service Charge, from time to
· time, based upon Landlord's projections of such costs for the next accounting period (defined below)
which,may be based, in whole or in part, at Landlord's option, upon the costs and expenses incurred or
expended by Landlord for the prior accounting period. For purposes of this calculation, the "accounting
period" shall be the twelve (12) consecutive month period of time determined by Landlord over which
Laodlm-d projects the Service Charge described herein.
(vi) At the end of each accounting period, the aforesaid estimated amount of
Tenant's share of the Service Charge may be adjusted and revised by Landlmd. In the event Tenant's
share of the recomputed Service Charge exceeds Tenant's paym6nts towards the estimated Service
Charge for said accounting period, Tenant shall pay to Landlord such deficiency within ten (10) days of
Tenant's receipt of an invoice therefor. In the event Tenant's share of the recmnputed Service Charge is
less'than Tenant's payments towards the estimated Service Charge for said accounting period, Tenant
sball receive a credit for such excess payments against payments next due Landlord, or if such
overpayment is for the last accounting period, Landlord shall refund to Tenant the amount of such
overpayment provided T. anant is otherwise in compliance with the terms and provisions of this Lease.
2. LOAD FACTOR.
(i) Unless increased as set forth below, Tenant shall be deemed to have a
minimum Load Factor (herein called the "Load Factor") of one (1,0).
(ii) The Load Factor shall be subject to increase at the commencement of the
Term or at any time during the Term in the event that Tenant's approved plans specify or Landlord's
engineer determines that:
a) The heat gain contribution of people is iu excess of three and one-
half(3.5) BTUIt per square foot of Premises Floor Area; aod/or
b) The heat gain contribution of electrical load is in excess of twenty
and one-half(20.5) BTUH per square foot of Premisas Floor Area; and/or
c) The introduction of outside air is in excess of the minimum
requirements of the more stringent of applicable codes and laws or Landlord's Tenant Mechanical
Design Criteria.
3. INTERRUPTION OF SERVICE.
(i) Landlord shall not be liable hereunder iu ally respects for any deficiency,
excess or interruption in the supply of heating, ventilating or cooling services provided by the System,
nor shall any such deficiency, excess or interruption constitute a breach by Landlord of the terms and
conditions of this Lease, nor shall any such deficiency, excess or interruption constitute grounds for
abatement of any sum payable by Tenant hereunder, regardless of whether Landlord or Landlord's
Agent supplies the service to Tenant. Notwithstanding the foregoing, Landlord shall use reasunable
efforts to restore the discontinued service in all situations which are not due to the fault of Tenant
hereunder.
Utilities
(a) Tanant shall be solely responsible for and pr6mptly 'pay all charges for heat, water,
electricity, sewer rents or charges, and any other utility used or cousumed in the Premises or in
providing heating and air-cunditioning to the Premises, including in each instance, all sales and other
taxes applicable to the sale or supply of such utilities, said responsibility commencing on the earlier of
the Commencement Date or the date Tenant first enters the Premises for any reason. Should Landlord
elect or be required to supply or make available any utility used or consumed at the Premises, Tenant
agrees to purchase and pay for same, as Additional Rent, every month in the Term. During the Term,
Tenaut agrees to purchase from Landlard and pay for electricity to be used by Tenant at the Premises in
accordance with Exhibit "C" attached hereto. During the Term, Tenant agrees to purchase from
Landlord and pay for the heating and/or cooling medium supplied by Landlord to the Premises, to be
used by Tenant for heating and/or air-conditioning the Premises, as Additional Rent, upon presentation
of bills therefor, at the rate set forth in the paragraph in the Indenture of Lease captioned "HVAC
Charge", subject to adjustmants in accordance with Landlord's Charge Rate Adjustment Schedule
attached hereto as Exhibit "D".
(b)
accordance with Landlord's specifications, at Tenant's sole cost and expense.
Tenant shall purchase and install a water meter prior to the Commencement Date, in
(c) In thc event ,~ local authority, municipality, utility o, other body collects for the water
and/or .sewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants and agrees to
pay the water and sewer rent charge (both minimum and otherwise) and any other tax, rent, levy,
cnnnectinn fee or meter or other charge which now or hereafter is assessed, imposed or may become a
lien upon the Premises, or the realty of which they are a part, pursuant to law, order or regulation made
or issued in colmection with the use, consumption, maintenance or supply of water, or the water or
sewerage connection or system.
(d) Landlord may, after thirty (30) days' notice to Tenant, cease to furnish any one or more
of the utility services to the Premises, without any responsibility to Tenant, except to connect Tenant's
distribution facilities therefor with another soume for the utility service so discontinued. In addition,
Landlord reserves the right to cut offand discontinue, upon thirty (30) days' notice to Tenant, furnishing
any heating, ventilation, air-conditioning or other utility services furnished by Landlord and to remove
its property at any time when Tenant has failed to pay any arfiount'(whether as rent or otherwise) due
under this Lease. Landlord shall not be liable for any such discontinuance and the same shall not
constitute a termination of this Lease or an eviction of Tenant.
(e) In no event shall Landlord be liable to Tenant in damages or otherwise for any
interruption, curtailment or suspension of any of the foregoing utility services in the event of a default
by Tenant under this lease or due to repairs, action of public authority, strikes, acts of God, or public
enemy, or any other cause, whether similar or dissimilar to the aforesaid.
Operating Costs
Landlord (subject to reimbursement as set forth in Section 7.3) at its expense will operate and
maintain or cause to be operated and maintained the Common Areas and the Shopping Center. For the
purposes o£ this Lease, "Operating Coats" shall be those costs of operating, repairing, managing,
maintaining, and replacing the Common Areas and the Shopping Center of which the Premises forms a
part in a manner deemed by Landlord to be reasonable and appropriate including, but not limited to, all
costs and expenses, whether expended or incurred of operating, repairing, replacing, lighting, cleaning,
painting, and maintaining (including, but not limited to, preventive maintenance) such Common Areas
and the Shopping Center and insuring the same (and all costs related to said coverage) with such policies
and companies and in such limits as selected by Landlord (including, but not limited to, all risk property
insurance, liability insurance covering personal injury, deaths and property damage with a personal
injury andorsement covering false arrest, detention or imprisonment, malicious prosecution, libel and
slander, and wrongful entry or eviction, worker's compensation insurance, plate glass insurance,
contractual liability insurance and fidelity bonds but excluding the insurance referred to in Section 7.4
hereof); removing snow, icc, rubbish and debris; inspecting, policing, providing security and regulating
traffic; rental of sweepers, tracks and other equipment; depreciation (over a period not exceeding sixty
(60) months) of machinery and equipment and other non real estate assets used in the operation and
maintenance of the Shopping Center; maintaining, repairing and/or replacing of paving, roofs, curbs,
walkways, landscaping, drainage, on-site water lines, sanitary sewer lines, storm water lines, Common
Area heating, ventilating and air-conditioning systems, floors, floor coverings, canopies, skylights,
fountains, escalators, electrical lines and other equipment serving the property on which the Shopping
Center or any part thereof is constructed; heating, ventilating and air-conditioning enclosed Common
Areas at the same rate Landlord charges to tenants; uniforms and replacement of uniforms; the rental of
music programs, services and loudspeaker systems including the furnishing of electricity therefor; all
costs incurred by Landlord in compliance with any environmental or other similar laws, rules,
regulations, guidelines or orders, including the cost of removing Hazardous Materials from the Shopping
Center; the cost of obtaining and operating public transportation or shuttle bus systems used in
connection with bringing customers to the Shopping Center; stormwater management facilities; the
gross compensation and fringe benefits of the Shopping Center manager, the Shopping Center office
personnel and all other on-site personnel required to supervise an'd acc0mplish the foregoing and an
admiuistrative charge equal to fifteen (15%) per cent of the total of all Operating Costs (exclusive of
snch administrative charge). Operating Costs shall not include depreciation other than as specifically
referred to above. In the event of any dispute as to whether an item represents an expense or a capital
item, Landlord's accounting practices shall be determinative and binding on the parties.
EXHIBIT "E"
TENANT'S CURRENT MENU
SURETYSHIP AGREEMEN~I
In consideration of the execution by Landlord of a Lease Agreement dated as of the
__ day of March, 2000, between CAMP HILL SHOPPING CENTER ASSOCIATES as
Landlord and MANI CAFFE INTERNATIONAL, INC., trading as MANI CAFFE (hereinafter
'~Tenant"), respecting certain store premises in Camp Hill Shopping Center, Camp Hill,
Pennsylvania, the undersigned, (hereinat~er referred to as "Surety") intending to be legally bound
hereby, hereby becomes surety for the prompt and faithful performance by Tenant of the Lease
and all the terms, conveannts and conditions thereof including, but not limited to, the payment by
Tenant of the rental and all other sums to become due thereunder.
Surety agrees that (1) this obligation shall be binding upon Surety without any further
notice or acceptance hereof, but the same shall be deemed to have been accepted by the
execution of the Lease; (2) immediately upon each and every default by Tenant, without any
notice to or demand upon Surety, Surety will pay to Landlord the sum or sums in default and will
comply with or perform ali the terms, covenants and conditions of the Lease which shall be
binding upon the sa~d Tenant as provided in the Lease; (3) no extension, forbearance or leniency
extended by Landlord to the said Tenant shall discharge Surety aod Surety agrees at all times it
will be liable notwithstanding same and notwithstanding the fact that Surety has had no notice of
any said default or of any said forbearance or extension; (4) at any time or times enter into sttch
modifications, extensions, amendments or other covenants respecting the Lease and that Surety
shall not be released thereby, it being intended that any joini:ler, ',~aiver, consent or agreement by
Tanant by its own operation, shall be deemed to be a joinder, consent, waiver or agreement by
Surety with respect thereto and that Surety shall continue as Surety with respect to the Lease as
so modified, extended, amended or othenvise affected; (5) neither the Surety's obligation to
make payment in accordance with the terms of this agreement nor any remedy for the
enforcemem thereof shall be impaired, modified, changed, released or limited in any mmmer
whatsoever by any impairment, modification, change, release or limitation of the liability of the
tenant or its estate in bankruptcy or of any remedy for the enforcement thereof, resulting from
the operation of any present or future prevision of the National Bankruptcy Act or other statute,
or from the decision of any court.
Surety further agrees to be bound by each and every covenant, obligation, power and
authorization, without limitation, in the Lease, and with the same force and effect as if it were
designated in and had executed the Lease as Tenant thereunder.
The undersigned, jointly and severally hereby authorize and empower any prothonotary
or attorney of any Court of Record of Pennsylvania, or elsewhere, to appear for and sign for the
undersigned an agreement for entering in any competent Court an action or actions for the
recovery of any sum or sums of money which may be due or become due hereunder, and in said
action or actions to confess judgment against the undersigned for said sum or sums, as of any
term, with or without declaration filed, and with attorney's fees, interest and costs together with
an attorney's commission of five (5%) percent thereof. Said authority shall not be exhausted by
oue exercise thereof, but judgment may be confessed as aforesaid from time to time and as often
as any said sum or sums becomes due hereunder, and such powers may be exercised as well after
the expiration of the original term during any extension or renewal of the the Lease.
In any such action, Landlord shall first cause to be filed in such action an affidavit made
by it or someone acting for it setting forth the facts necessary to authorize the entry of judgment,
of which facts such affidavit shall be conclusive evidence, and if a true copy of this Suretyship
Agreement be filed in such action, it shall not be necessary to file the original as a warrant of
attorney, any rule of court, custom, or practice to the contrary notwithstanding.
The undersigned expressly waives the benefits of law, now or hereafter enforced,
exempting any goods of other property from distraint, levy or sale in any legal proceedings taken
by Landlord to enforce any rights under this Suretyship Agreement. The undersigned further
~aives the right to delay execution on any real estate that may be levied upon to collect auy
amount which may be due under the terms and conditions of this Suretyship Agreement, and
authorizes the prothonotary to enter a Writ of Execution or other process upon the undersigned's
voluntary waiver, and further agrees that the said real estate may be sold on a Writ of Execution
or other process.
If this Suretyship Agreement is executed by two or more parties, it shall be the joint and
several obligation of all such parties, and shall not be revoked or impaired as to any by tbe death
of all or any of such parties, or by the revocation or release of any obligations hereunder, by or
agaiust all or any of such other parties.
IN WITNESS ',3. 2REOF, the undersigned has ca~sedJ, h.o Suretyship Agreement to be
duly executed this day o£Dec~Tab~, i~99. ~?~.~)
ROBERT PH~
Address: ~ ~ ~
(.om*) d~ ~ Il., !~· I ~ ti
NAO~II PHAM
Address:
(Home) t";~,'Y?
EXHIBIT "G"
PLAN OF PREMISES WITH DELKNEATION OF PERMITTED OUTSIDE SEATING AREA
I EVELYN
lES CLOTHIN
EXHIBIT 2
07/12/2802 12:25 7177576429 CAMPHILL MALL PAGE 02/83
HILL gHOPP~N~I MALL Time; 01;46 PM
Plaice; 0/'/02
07/12/2002 12:25 7177376429 CAHPH]LL ['/ALL PAGE 03/03
, 0?,~12/:t00Z .1~:$! T'.~,.,T. 855 666 157,]. ~e;z'~O ¢0i~RC~'&L ~003
CA~P HILl. SF,,OPFING
IP~f~od;
1111~t H ~AC ~GU~ ~ 75,00 o,o0 o.~ D.00
1~IR1 E EL~IC C~ ~ ~0-00 0,O0 O.~ ~.00
3~ ~ ~ ~ON ~ ~.~ 0.~ 0,~ O.~ 0.~
~2 C ~ ~ ~ ~o,oo O.O0 0 ~ ~00 0.00
~1~ E ~C ~ ~ 1~,~ 0.~ 0.~ 1~
W~ R ~ ~A~ T~ CH 97.00 0,0o 0,~ 97.~ 0.~
2
7/t~09.
a8.5~
306.25
1 ,ZSO.OO
3~.2:8
160.00
75.00
0,00
0.00
0.00
30,47440
Graft~l Ta~II: 36,62~ AO 912,50 912.50 2,162.00 ~,162,00 30.474.40
EXHIBIT 3
CHARLES W. JOHNSTON
JAMES A. DIAMOND*
I. AW OFFICES
JOHNSTON ~: DIAMOND
A PROFESSIONAL CORPORATION
SUITE 100
150 CORPORATE CENTER ORIVE
P. O. BOX 98
CAMP HILL, PENNSYLVANIA 1 7001-0098
June 26, 2002
TELEPHONE
(717) 975-5500
TELECOPIER
VIA UPS OVERNIGHT Am
Mani Caffe International, Inc.
t/a Mani Caffe
Camp Hill Shopping Mall
32nd Street and Tfindle Road
Camp Hill, PA 17011
Re:
Camp Hill Mall - Mani Caffe - Store No. C-3
Notice of Default
Dear Sir/Madame:
As you are aware, I am attorney for Connecticut General Life Insurance Company (here-
inafter "Landlord"), Owner and landlord of the Camp Hill Mall in Camp Hill, Pennsylvania. I
am writing on behalf of Landlord to formally notify Mani Caffe International, Inc., doing busi-
ness as Mani Caffe, that it continues to be seriously in default with respect to its monetary obli-
gations under the Lease.
As is more fully reflected in the enclosed Statement of Delinquencies, Mani Caffe, as of
June 1, 2002, had a delinquency in the principal amount of at least $36,171.70. (This does not
included charges due on or after June 2, 2002, adjustments to payments made on account, inter-
est, attorneys' fees, late fees, or other charges that may be assessed in the future.) Mani Caffe
has continued with its material defaults notwithstanding prior notification from Landlord.
If Mani Caffe does not cure all outstanding delinquencies within ten (10) days of this no-
tification, Landlord intends to pursue all of its fights and remedies in accordance with the Lease
and Pennsylvania law. These remedies at Landlord's option may include, but not be limited to, a
termination of the Lease. Pursuant to the Lease, Mani Caffe may be subject to liability for Land-
lord's attorneys' fees and court costs in addition to other sums due under the Lease if Landlord is
forced to pursue a judgment against Mani Caffe. It is, therefore, in Mani Caffe's best interests to
immediately remedy its material defaults.
Mani Caffe International, Inc.
t/a Mani Caffe
June 26, 2002
Page 2
Should have any questions, you-~or Mani Caffe's attorney, if it is represented in this
matter--should direct them solely to my office, as attorney for Landlord.
Very truly yours,
JOHNSTON & D~vIOND, P.C.
JAD/jrf
Enclosure
CC'
Dennis Ban'is, Property Manager
Nina R. Kilroy, CPM, Sr. Vice President
Databal;~ METRO3 Aged DeJlnquenctes Page; t
Date: 6/25/02
ENTtTY: 87344)2 CAMP HILl. SHOPPING MALL Time; 04.24 PM
InvOke Date Ca~ Sovme Amount Cm're~t 1 Manlh zMon~ 3 Mo~th~ ~ Mcxdh~
12/'tl00 NL~ MERCHANT ASSOCIATION CH 13-Og 0,00 0,00
1fi/0'& 8 B~E/MINIMUM RENT CH 1 ,D00.00 0,00 0.00
2/1/01 B BAbE/MINIMUM RENT CH 1,250.00 0.00 0.00
2/1/01 C CAM CHARGE CH 310_80 0,00 0.00
?.Jt~1 E L:~CTRJC CHAJ~GE CH 150,00 0. gO
~1/01 H HvAC REGULAR CH 75.00 0,00
2/1/01 MA MERCHANT ASSOCIATION CH 50.00 0,DO 0,00
2/1/01 R REAL ESq'ATIE TAX CH 52.29 0,00 0,5O
3/1/01 S BASE/MINIMUM ~ CH 1,2~0,00 0,00
3/1/01 C CAM CHARGE CH 310,~0 0.00 0.00
3~1/0t E ELECTRIC CHARGE CH 1,50.00 0.DO 0.0O
3/1/01 H I-IVAC REGULAR CH 75.00 0,00 0.00
3/1/01 MA IV~tCI'IANT AS SOCIATION CH 5O,00 0-00 O.00
3/t/0t R ~ ~"TAT~ TAX CH 52.29 0,00 0.O0
4/1/01 B BASE/MINIMUM RENT CH 1,250,00 0.00 0,00
4/1/01 C CAM CHARGE CH 310,00 0.00 0.00
4/1/01 E L=LECT~C ~ CH 150,00 0,00 0,00
4/1~01 H HVAC REGULAR CH 70,0~ 0.00 0.00
4/1/01 R REAL ESTATE T~3~ ~ 52,2~ 0,00 0,00
5/1/01 B 6ASE/MINffdUM RENT CH 1,2S0.00 0,00 0.00
5/1/01 c CAM CHRRq~i~ CH ~10.80 0.00 0,00
5/1/0t E ELECTRIC CHARGE CH 150.00 0.DO 0.00
5/t/01 H HVAC REC-aJLAR CH 7~.5O 0,00 0.00
r~1/01 R FF-AL ESTATE TAX CH 52,29 0,00 0.00
5~2/01 RX EXCES~ RE TAX CH 13~.67 0.00 0,00
Q/1/01 B BASE/MINIMUM ~ CH 1.250.0EI 0.00 0.00
9/1~1 C CAM CHARG~ CH 3..q6.2B 0,00 0,00
6/1/01 E ELECTPJC CHARGE CH 100.00 0.00
6/1/01 H ~ HVAC REGULAR CH ?0,00 0.00 0.00
~/1KIt MA MERCHANT A,~,~O C, IATION CH 50.00 0,00
~1101 R REAL ESTATE TAX CH 85_.52 0,00 0,00
?/1/01 B BA$.FJMINIMUM RENT CH 1.250,00 0.00 0,00
711101 C CAM Cl-IARGE CH 396.28 O,C/J 0,00
?/1101 E B..ECTRIC CHAI=tGE CH 150,00 0,00 0.00
711101 H HVAC REGULAR CH 75.00 0,00
711;01 MA kER~ A$$OCJATION CH 50.00 0.00
?1t/01 R REAL ES'TATI; TAX CH 85.52 n,DO
I~1/01 ~ BA~E/MINIMUM RENT CH 1,2~0.00 0.00
8/1/01 C CAM CHARGE CH 398.28 o.00
8/'t/01 E ELECTRIC CHARGE CH 150.00 0,00
8/1/01 H I-IVAC REGULAR CH 78.00 0,00
8/i/m MA MERCHANT ASSOCIATION CH 5O.00 0,00
8/1/01 R REAL ESTATE TAX CH 8S.52 0,00
9/1/01 B BA~FJMiNIMUM RENT CH 1,250.00 0.00
9/1/01 C CAM CHARGE CH 396.28 0,00
9/1/01 E ELECTRIC CHARGE CH 150.00
9/tl01 H HVAC RE~ CH 75.00 0.00
9/1/01 MA MERCHANT ASSOCIATION CH 50.00
9/1/01 R REAL E,D'rATE TAX CH ;55.52 0.00
1011/~I B BASE/MiNIMUM RENT CH ~,250.00
10/1101 C CAM CNARGE CH $9§28 0,00
10/1101 E EI.EC'TR. IC CHARGE CH 150.00
0,00 O.QO 13.09
0.{3O 0.00 1,000.00
0.00 O.gO 1,Z50.00
0.00 0.00 310.80
0.~0 0.0O 150.00
O.O0 0.(]0
0,00 0.DO 50.00
0-00 0.130 52.29
0.00 O.00 1
0.00 0.00 3t0.80
0.00 O,00 1S0.00
0,00 0.00 75.00
0.00 0.00 50.00
0.DO 0.00 ~2.29
0.00 0.00 310,80
0.00 0.DO 1,50.00
0.00 0.00 50.00
0_~0 0,00
0.00 0.00 310,80
0,00 0.00 150.00
O.DO 0.00 50,00
0,00 O.DO S2.29
0.00 0.00 34.9.04
0.00 0.00 135.67
0,OO 0.00 1.2~0.00
0,00 0.00 396.2a
0,00 0.00 150.00
0.00 0.00 75,00
0.00 O.DO 50.OO
0.00 0.00 85.52
0.00 0.00 1,250.00
0.00 0.00 396.28
0.00 0,0O 150.00
0,00 0.00 0.00 75.DO
Q.O0 O.DO O.DO 50.00
0.00 0.00 0,00 65.52
0.00 0,00 0.00 1,250.00
0,00 0.00 0.00 396.28
0,00 0,00 0~5O 1~i0.00
0,00 0,00 0.00 75.00
0,00 O.DO 0.00 50.00
0.00 O.00 0,00 85.52
0,00 0_00 0,5O
0,00 0.00 0.00 396.28
0,00 0-00 0.00 150.00
0,00 0.00 0.00 75,00
0,00 0,00 0,00 50,00
0.00 0,00 0-00 85.52
0.00 0.00 0.00 1,250.00
0,00 0,DO 0.00
0.00 0.00 0,00 150_00
06/25/2002 16:34 F/~ 655 665 1611 ~RO COMM~RCIAL ~003/Oll
Oata~es~ IVL=TR03
F_NTI~(; 873402
Invoi=m Date C~t~gmy Source
10/1/01 H HVAC ~GULAR CH
10/1/01 R F~-AL ESTATE TAX CH
11 It/01 u BASE/MINIMUM RENT CH
tl/1~1 ¢ CAM C~GE CH
11/I/01 MA MERCHANT ~TION CH
1111/01 R REAL ESTATE TAX CH
t2/1/01 6 BA~,ETMINIMUM I~ CH
12/1/01 C ~ ~ CH
12/1/91 H HVAC REGULAR CH
12fl/91 MA M~ ASS0(~IA'FION CH
12/I/01 R, REAL ESTATE TAX CH
1tim2 8 BASE/M1NIMUU RENT CH
1/1/02 C CAM CHARGE CH
1/1/g2 E ELECt'RIO CHARGE
1/1~2 H HVAC REGM~ CH
1/lfl)Z R REAL ESTATE TAX CH
2/1/02 B BA~MUM RENT CH
~/1/02 E ELEC~RIC CI"~RGE CH
2/I/'02 H HVAC REGUI~ CH
2/1/02 R REAL ESTATE TAX CH
2/2M)2 CX F_X~ CAM CH
~ RX EXCE_SS RE TAX CH
5/1~)2 B ~MI.~ RENT CH
3/1/0~' ~= I~-ECTRIC CI'~N~.GE CH
~'¢/02 H HV,aC REC-,LN-AR CH
3,/I/{~2 MA MERCHN~ ASSOC~ CH
3/1/02 R RF.a~ E.~I'ATE TAX CH
4/1~ B BASE/t/~N~MUM RENT CH
~ C CN~ CHN~ CH
~1/Q2 a 8ASFJMINIMUM PENT CH
5/1/~2 E Et. ECTRIC CHARGE
5/1/02 MA MERCHANT ASSOCIATION CH
5/1/02 R REAL ESTATE TAX CH
6/1]~2 BPL POT IN LIEU OF 8~$E CH
MANI CAFFE Tokai:
EN I I i T' 873402 TotUl;
C,NVlP HILL SHOPPING MALL
P~;~l: ~2
?S. O0 · 0.00 0.00
50.00 0.00 0.DO
85,52 0.00 0.00
1,250.00 0.00 O.00
396.28 0.O0 0.00
1l]0.00 0.00
7~5.00 0.00 ~.00
1 A,50.00 O.00 0:00
396.28 0.00 O.00
15/Z00 0.00 0.00
75.OO 0,00
~0,00 0.O0 0.0~
85.52 0.0O 0.00
1.250.00 0.00 O.00
54O. O0 0.00 0.00
1 ~O.~0 ~ 0.00
75.00 0,00 0.00
~i0,00 0.00 0.00
97.00 0.00 0.00
540.Q0 0.00 0.00
150.00 0.00
75.00 0.00 0.ao
50.¢~ 0.00 0.00
97.OO 0.0O 0.0O
1.1~8.'~ 0.~0 0.00
187-~9 0.00
t~.00 0.Og 0.00
540.00 0-00 0.00
150.00 0.O0 0.00
75-00 0.00 0.00
50.00 0,00
97.00 0,00
t ,250.00 0.00 0,00
540,00 0.00 0.00
150.00 0,00
75.00 0,00 0.00
.50_00 0.00 0.00
97'.00 0.0O 0.00
1.250.00 0,00
~.OO 0,00 540,00
150.00 0.00 t50.00
75.00 ·0,00 75.00
50.00 0.00 50.00
07.00 0.0~ g7_O0
912.50 912.50 0.00
36,171.70 ~t?-50 2,162.00
36,171_~0 912.50
2 I~n~
0.00
0.00
0.00
0,00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
t,250_00
150,00
75.OO
0.00
0.00
0.00
2.162.00
2,167-00
Date:
'nme:
Months
0.00
0.00
0.00
0.~0
0.00
0.00
0.QO
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0_00
75~00
9?.OO
0~00
0,00
0.00
0-00
n.00
2~162~00
2,162,00
2
04:24 PM
Mm'dtm
85.52
3~6,28
150.00
75.OO
6O,.OO
396.28
5O.O0
97_00
182.69
0.00
0.~0
0.00
o.ao
0.0o
0.00
0.oo
0.00
o.0o
0.oo
0-00
Grand Total: 36,171.7{} 912,50 2.162.00 2.1 ~2.00 2,162.00 28,773.20
VERIFICATION
I, NINA R. KILROY, Senior Vice President of Metro Commercial Management Ser-
vices, Inc., as agent for Connecticut General Life Insurance Company, am authorized to
make this Verification, and hereby verify that the statements contained in the foregoing
Complaint are true and correct to the best of my knowledge, information and belief.
: SS.:
County of ~ :
On this, the /~ day of ~ , 2002, before me, a Notary Public, the under-
signed officer, personally appe~ed Nina R. Kilroy, known to me (or satisfactorily proven) to
be the person whose name is subscribed to the within instrument, and acknowledged that she
executed the same for the purposes therein contained.
In witness whereof, I hereunto set my hand and seal.
NC, Tt~t(L~U B LiC LJ
JILt. J. HIGGINS
NOTARY PUBLIC OF NEW JERSEY
t/q CO'AlflMssion Expires January 20,2005
Attorneys for~S:
~MES A. DIAMOND, I~SQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
~ 975-5500
IN THE cOURT OF COMMON PLEAS
CONNECTICUT GENERAL LWE INSURANCE :
Coym~,a', a Connecticut Corporation, :
Plaintiff
cUMBERLAND cOUNTY, PENNA.
CIVIL ACTION - LAW
MANI CAFFE INTERNATIONAL, INC., doing
business as Mtma CAFF~,
Defendant
CERTIFICATION OF ADDRESSES
PURSUANT TO Pa.R.C.P. 236
I, James A. Diamond, Esquire, attorney for Plaintiff in the above matter, hereby certify as fol-
The address of plaintiff is as follows:
Connecticut General Life Insurance Company
Camp Hill Shopping Mall
32na Street and Trindle Road
Camp Hill, PA 17011
The last-known address of the Defendant is as follows:
MANI CAFFE INTERNATIONAL, INC., doing business as M~qI
Camp Hill Shopping Mall, Store No. C-3
32na Street and Trindle Road
Camp Hill, PA 17011
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
lOWS:
Dated: July 23, 2002
//J~mes A. Diamond, Esquire
~l~a. I.D. No. 43902
Attorneys for Plaintiff
Attorneys for Plaintiffs_:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
~975-5500
IN THE COURT OF COMMON PLEAS
CONNECTICUT GENERAL LIFE INSURANCE
CO~'n'~N¥, a Connecticut Corporation,
Plaintiff
MANI CAFFE INTERNATIONAL, INC., doing
business as M~2q~ C~b'E,
Defendant
cUMBERLAND cOUNTY, PENNA.
No.
CIVIL ACTION - LAW
NOTICE TO DEFENDANT BY PROTHONOTARY
OF ENTRY OF CONFESSED JUDGMENT
TO: MAre CAFFE INTERNATIONAL, INC., doing business as M~,r[ C~FE,
You are hereby notified pursuant to Pa. R.C.P. No. 236, that on ~, 2002,
judgment by confession in the amount of $42,116.91, was entered against you in the above-captioned
case.
I
Prothonot y ~ (55:~
IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE, PLEASE
CONTACT THE ATTORNEY FOR PLAINTIFF:
James A. Diamond, Esquire
150 Corporate Center Drive, Suite 100
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
Telephone: (717) 975-5500
Attorneys for Plaintiff:
JAMES A. DIAMOND, ESQUIRE
Pa. I.D. No. 43902
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Drive
P. O. Box 98, Camp Hill, PA 17001-0098
Phone: (717) 975-5500
CONNECTICUT GENERAL LIFE INSURANCE
COMPANY, a Connecticut Corporation,
Plaintiff
MANI CAer'~ INTERNATIONAL, INC., doing
business as MANI CAFFE,
Defendant
IN THE cOURT OF COMMON PLEAS
cUMBERLAND cOUNTY, PENNA.
No. 02-3563 CIWL TERM
CIVIL ACTION - LAW
:
PRAECIPE
TO THE PROTHONOTARY:
Please mark the Judgment against Defendant Mani Caffe International, Inc., doing business
as Mani Caffe, in the above-captioned matter as satisfied.
Respectfully submitted,
JOHNSTON & DIAMOND
Suite 100, 150 Corporate Center Dr.
Post Office Box 98
Camp Hill, Pennsylvania 17001-0098
(717) 975-5500
Dated: August 30, 2002
By: f~s A. DIAMOND
""Pa. Reg. No. 43902
Attorneys for Plaintiffs