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Home My WebLink About02-3753Attorneys 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 Lnm INSURANCE COMPANY, a Connecticut Corporation, Plaintiff V. MAN~ CArve INTERNATIONAL, INC., a Penn- sylvania Corporation doing business as MAN~ CAvv~, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW CONFESSION OF JUDGMENT IN EJECTMENT FOR POSSESSION OF REAL PROPERTY 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 for possession of the real property described as follows: The premises designated as Store No. C-3 erected as part of the shopping cen- ter known as the "Camp Hill Shopping Center," located at 32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania, as is more fully described in the Lease, a copy of which is attached to the Complaint filed in this action. JOHNSTON & DIAMOND Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 2, 2002 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 Phone: (717) 975-5500 CONNECTICUT GENERAL Lnm INSURANCE Corn, ANY, a Connecticut Corporation, Plaintiff V. M~d,~ C~ve INTERNATIONAL, INC., doing business as MA~ C~FE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW CERTIFICATION OF ADDRESSES PURSUANT TO Pa.R.C.P. 236 lOWS: 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: MAN~ CAvve INTERNATIONAL, INC., doing business as MAN~ CAere c/o Robert L. Pham, President 1106 Waynesford Road Mechanicsburg, PA 17050 JOHNSTON & DL~MOND Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 Dated: August 2, 2002 Diamond, Esquire 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 Phone: (717) 975-5500 CONNECTICUT GENERAL Lnm INSURANCE COMPANY, a Connecticut Corporation, Plaintiff V. MANI CAFFE INTERNATIONAL, INC., doing business as MAN[ CAFFE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. CIVIL ACTION - LAW NOTICE TO DEFENDANT BY PROTHONOTARY OF ENTRY OF CONFESSED JUDGMENT FOR POSSESSION TO: MAre CAI~'FE INTERNATIONAL, INC., doing business as MANa CAFFE, pursuant to Pa. R.C.P. No. 236, that on ~ x~ ,2002, You are hereby notified judgment by confession was entered against you in the above-captioned case for ejectment at Store No. C-3 erected as part of the shopping center known as the "Camp Hill Shopping Mall," located at 32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania. /~ · ' I ~ - Prothonotary ' v - {~ 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 [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 EWE INSURANCE COMP,~P~', a Connecticut Corporation, Plaintiff MAN[ CAFFE INTERNATIONAL, INC., a Penn- sylvania Corporation doing business as MAN~ CAFFE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA. C1VIL ACTION - LAW COMPLAINT BY CONFESSION FOR POSSESSION 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 2970, et seq., of the Pennsylvania Rules of Civil Procedure, whereby Plaintiff confesses judgment against Defendant, MAN[ CAF~E INTERNATIONAL, INC., a Penn- sylvania Corporation doing business as MANI CAFFE, for possession of real 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 (hereinafter"Landlord"), is a Connecticut corporation which has a place of business at the Camp Hill Shopping Mall, 32nd 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, 32~a 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 Mamh 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 Mail," located at 32nd 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 heroin 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. 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, by virtue of the said March 31, 2000 Lease, took possession of the Store Premises designated as C-3 (hereinafter the "Demised Premises"), in the enclosed mall erected as -2- part of the said Camp Hill Shopping Mall, which Premises is more particularly described in the Lease attached hereto as "Exhibit 1" and incorporated herein by reference. As of the date of this Complaint, Tenant remains in possession of the said Demised Premises. 9. Notwithstanding the terms, covenants and conditions of the Lease, Tenant at relevant times defaulted by failing to pay rent and other charges due to Landlord. 10. At all relevant times, Tenant was required to make monthly payments to Landlord of rent and other charges, as is provided for in the Lease. 11. At all relevant times since at least December of 2000, Tenant failed to properly and timely pay such monthly rent and other charges to Landlord. 12. 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. 13. 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: I. 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 I-IVAC 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...." -3- 14. 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. 15. 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- sel, dated June 26, 2002, a true and correct copy of which is attached hereto, marked as "Exhibit 3," and incorporated herein by reference. 16. Tenant has failed or refused to cure its material monetary delinquencies. 17. 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. 18. The Lease, in Section 19.3, which provides Landlord with the right to terminate the Lease upon the occurrence of an Event of Default or a Deliberate Event of Default, provides as fol- lows: -4- "SECTION 19.3 Termination (a) Upon or after the occurrence of any one or mom of such Events of Default, or Deliberate Events of Default, and upon the expiration of the applicable notice required hereunder, if the Term shall not have com- menced Landlord may immediately cancel this Lease by written notice to Tenant, or if the Term shall have commenced Landlord may serve upon Ten- ant a written notice that this Lease and the Term will terminate on a date to be specified therein, and in either event, Tenant shall have no fight to avoid the cancellation or termination by payment of any sum due or by other perform- ance 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 com- pletely as if such date were the day herein definitely fixed for the end and ex- piration of this Lease and such Term, and Tenant shall then quit and surren- der 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." 19. By written notification through its attorney, James A. Diamond, Esquire, dated July 23, 2002, the original of which was hand delivered to Tenant at the Promises, Landlord notified Ten- ant of the termination of Tenant's Lease pursuant to Section 19.3, effective at 11:59 p.m., July 23, 2002. A true and correct copy of the notification of Lease termination and an Affidavit of hand de- bvery are attached hereto, collecuvely marked as Exhibit 4, and incorporated herein by reference. 20. Pursuant to the Lease, including Section 19.7(b), Landlord, by virtue of Tenant's said Deliberate Events of Default, and by virtue of the said termination ofTenant' s Lease and right' of possession, now has the right to confess judgment for possession against Tenant. 21. The Lease, in Section 19.7(b) provides in this regard as follows: "(b) IN THE EVENT OF THE BREACH OF ANY PROVISION OF THE LEASE, AN EVENT OF DEFAULT OR A DELIBERATE EVENT OF DEFAULT AS DEF1NED HEREIN, EITHER DURING THE TERM OR ANY RENEWAL OR -5- EXTENSION THEREOF, AND/OR WHEN AND AS SOON AS THE TERM SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT HEREBY IR- REVOCABLY 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 LAND- LORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE, OR A TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WAR- RANT, 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 CANCELED OR SUSPENDED AND POSSESSION OF THE PREMISES REMAIN IN OR BE RESTORED TO TEN- ANT OR ANY PERSON CLAIMING THROUGH OR UNDER TENANT, LAND- LORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON ANY SUBSEQUENT TERMINATION OR EXPIRA- TION OF THIS LEASE, OR ANY RENEWAL OR EXTENSION HEREOF, OR OF TENANT'S RIGHT OF POS SESSION AS HEREINBEFORE SET FORTH, TO CONFESS JUDGMENT IN EJECTMENT AS HEREIN BEFORE SET FORTH ONE OR MORE ADDITIONAL TIIVIES TO RECOVER POSSESSION OF THE PREMISES. TENANT HEREBY ACKNOWLEDGES THAT BY AGREEING TO THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF AT- TORNEY, TENANT WAIVES THE RIGHT TO NOTICE AND A PRIOR JUDI- CIAL PROCEEDING TO DETERMINE ITS RIGHTS AND LIABILITIES, AND FURTHER ACKNOWLEDGES THAT LANDLORD MAY, ON DEFAULT BY TENANT UNDER THE LEASE, SUBJECT TO SUCH NOTICE REQUIRE- MENTS, IF ANY, AS ARE HEREIN EXPRESSLY PROVDED, 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 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 SIGN- ING 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 CERTI- FIES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND EF- -6- FECT OF THE FOREGOING CONFESSION OF JUDGMENT AND WARRANT OF ATTORNEY. TENANT FURTHER ACKNOWLEDGES THAT THIS LEASE IS A COMMERCIAL TRANSACTION, AND THAT THE RELATIONSHIP BE- TWEEN LANDLORD AND TENANT CREATED HEREUNDER IS COMMER- CIAL IN NATURE. 22. There has been no prior exemise of the warrant of attorney to confess judgment for possession contained in the said instrument in any jurisdiction. A Judgment for money damages un- der Section 19.7(a) was confessed by Complaint filed with the Cumberland County Court of Com- mon Pleas on or about July 25, 2002, and docketed at Case No. 02-3563 Civil Term. Moreover, the warrant of attorney in Section 19.7(b) expressly provides that judgment for possession may be con- fessed thereunder more than one time. 23. 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 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. -7- WHEREFORE, Plaintiff prays your Honorable Court to enter judgment in ejection in favor of Plaintiff and against Defendant for the said Demised Promises located at Store C-3, Camp Hill Shop- ping Mall, 32nd Street and Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011. Respectfully submitted, JOHNSTON & DIAMOND Suite 100, 150 Corporate Center Drive Post Office Box 98 Camp Hill, Pennsylvania 17001-0098 (717) 975-5500 p~.S A. Diamond, Esquire D. No. 43902 Attorneys for Plaintiff Dated: August 2, 2002 -8- EXHIBIT 1 INDENTURE OF LEASE THIS INDENTURE OF LEASE, made on Ihe~l~ day of March, 2000, by CAMP HILL SHOPPING CENTER ASSOCIATES, a PermsylvanJa general partnership ("Landlord"), with a notice address of e/o Kravitz Properties, Inc. 555 City Line Avenue, Suite 460, Bala Cymwd, PA 19004 (Kravitz Properties, Inc. being hereinafter referred to as "Agent") and MANI CA~'FE INTERNATIONAL, 1NC. authorized to do business in the Commonwealth of Pennsylvania, 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 thn 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 case of those walls separating the Premises from other stores in the Shopping Center, from the center lines of such walls, the Premises being approximately five hundred thirty-seven square feet (592 sq. lc) together with the right to the non-exclusive use in comrnon 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 rules 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 lmreinafler called the "Commencement Date"): (1) sixty (60~ days after delivery of premises to Tenant for Tenant s Work or; (2) the date on which ;fen~r~t s ~al'l ~lrs'l open the Premises for business with the public. The Term (defined herein) shall be for a period of seven (7) years from the Commencement 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 first full calendar month in the Original Tenn. The expected date of deliveE~ ofpossassion to Tenant is un or aboot March 17, 2000. C. Fixed Minimum Rent. (a) Tenant shall pay to Landlord a guaranteed annual 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 $I,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 from Landlord and thereafter throughout the Term. (c) Each such instaihnent of Fixed Minimum Rent shall be due and payable on or before the first day of each calendar tnnnth in the Original Tema, 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 not the Commencemant Date is the first day cfa calendar month. In'the event that the Commencement Date of the Term shall be a day other than the first day cfa calendar month, Tanant's first paylnent of Fixed Minimum Rent shall be prorated for the fractional month between the Commencemant Date and the first day of the first full calendar month in the Teton, on a per diem basis (calculated on a thirty (30) day molath). Landlord may accept any payment by Tenant of a lesser anmunt than shall be due from Tenant without prejudice to any rights or remedies which Landlord may have against Tenant. Any andm'semant or statement on any check accepted by Landlord, or any statement in corresponden~ accompanying such check, that acceptance of such lesser amount is payment in full, shall be effect. All rent shall be pai,,-in Urdted States currency and shall, ii uther than cash, be drawn on a 'United States bank. (d) As long as Tenant is open for business to the publi~ 6n or before the Conamencement Date, continues to operate and is not in default under this Lease, Landlord shall abate Fixed Minimum Rent in the form of a rent credit in the amount of One Thousand Dollars ($1,000.00) per month for each month after the Commencement Date and prior to and including Decelnber 31, 2000. If the Commencement Date is other than the first day of a calendar month and as long as the nther 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 Rent for that partial month. D. Percentage Rent. In addition to the 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 the 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 Base. The Percentage Rent Gross Sales Base for the following periods within each Lease Year shall be: YEARS ANNUAL Years i - 2 $187,000.00 Years 3 - 5 $225,000.00 Years 6 - 7 $262,500.00 E. Use of Premises. Subject to the provisions of Article 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 cappuceino, 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 menu attached to this Lease as Exhibit "E"; and for no other purpose. Notwithstanding the foregothg, Tenant covenants and agrees that no beer, liquor or wine or other alcoholic beverage shall be sold, served or cousumed at or on the Prexnises (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 Tenant shall not be operate the Premises as a full-service full menu sit-down restaurant. Tenaut, as a condition to the fight to sell any liquor in the limited ciranmstances permitted in the preceding sentence, shall obtain all liquor licenses and other governmental permits required for snch sales and shall furnish Landlord with evidence that Tenant's liability insurance covering liquor or so- called "dram-shop" liability. F. Shopping Center Hours of Operation. The present hours of operation of the Shopping Center during which Tenant must have the Premises open for business with the public (subject to adjustmant by Landlord as set forth in Section 5.1) are: Monday tth'ough Friday: Saturday: Sunday: G. HVACCharge. 10:00 A.M. to 9:00 P.M. 10:00 A.M. to 9:00 P.M. 12:00 Noon to 5:00 P.M. In accordance with and subject to the adjustments set forth in Section 12.1 of the Lease, for each year during the Original Term, Tenant shall pay Landlord the mmual 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 Tenm~t is open for business to the public on or before the Commancement Date, continues to operate and is not in default under this Lease, Landlord shall abate the full amount of the HVAC Charge due for the period of time fi'om the date Landlord delivers possession of the Premises to the Tenant to and in October 3 I, 2000. ~ Iq[IL^i\114~3973~2 0?05O3.SS0 2 MANI CAFFE INTERNATIONAL INC. P.O. BOX ~20 CAMp IHLL~ PA 17001-O520 PHONE: (717)379-~$38 FAX: (717) 737-6985 MARCH 15, 2000 DEAR M~L DONALD W. M~LLER: MR. CHARLES RUE: THERE'S.A LITTLE NOTATION IN SECTION E - USE OF PREMISES CONCERNING ABOUT "NO GRILLING." WITH CONTACT GRILL (I.E. PANINI SANDWICHES ARE MADE SUCH AS WAFFLE MACI-IINE OR SAME AS GEORGE FOREMAN LEAN MEAN GRILLING MACHINE TYPE) WHICH REQUIRES NO EXHAUST SYSTEM FOR THE SANDWICH PROCESS. WE LIKE INFORMING YOU ABOUT THE PROCESS OF PANINI SANDWICHES. THANK-YOU FOR YOUR COOPERATION IN THiS MATTER AS SOON AS POSSIBLE. 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 am~ual amount of One Dollar and Six Cents ($1.06) multiplied by the number of square feet of floor area contained within the Premises. The dollar amount set forth herein is an initial estimate only. 1. Operating Qosts. In accordance with and subject to the adjustments set forth in Section 7.3 of the Lease, for each "Accountnig Period" (as defined in said Section) during the Original Tea'm, Tenaut shall pay Landlord on account of Tenant's share of"Operating C sts (as thereto defined), t~e ammal amount equal to Six Dollars and Thirty Cents ($6.30) multiplied by the number of square feet of floor area contained within the Premises. The dollar amount set forth hereni is an initial estimate only. J. Marketing Fund and Media Fond. In accordance with and subject to the adjustments set fortb in Article 15 of the Lease, for each year during tbe Orignial Term, Tenant shall pay to Landlord the almual amount of One Dollar and Twelve Cents ($1.12) multiplied by the number of square feet of floor area contained within the Premises for the Marketing and Media Charge, subject to any increases described in Sections I5.1 and 15.2. K. Electricity Charge In accordance with and subject to the adjustments set forth in Article 12 of the Lease, for each year during the Original Term, Tenant shall pay Landlord the annual mnount (in equal monthly iustallments) 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 poasession of the Premises to the Tenant to and including October 31, 2000. L. Proportiouate Insurance. Intentionally Deleted. M. Remodeling. In accordance witb the provisions of Section 4.2 of the Lease, Tenant shall remodel the eotire 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 of this Indeoture of Lease and Lease, has deposited with Landlord the sum of Two Thousand Dollars ($2,000.00), receipt of which is hereby acknowledged by Landlord, wbich deposit is now the property of the Landlord and is to be held as security for the faithful performance by Tenant of all of the terms, coveuants and conditions of this Lease by said Tenant to be kept and performed during the Term, subject to Article 20 of the Lease. ?HILA I\1149973~2 070593.000 O. Lease Doclllllellts. . In 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 Lease as fully as though set £orth at length in the Lease Rider, if any, and the following Exhibits: Exhibit "A" - Site Plan of Shopping Center ExhiI3it "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 Pbam Exhibit "G" - Plan of Premises with Delineation of Permitted 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 TENANT: MANI CAFFE~IJgT-~ATIONAL, INC., trading as Title: '4~.,~.~./~..-~_'~ ~'~2~_~) LEASE AGREEMENT ARTICLE 1 TERM; DEFINITIONS SECTION I.I 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 agreement prepared by Landlord, wherein Tenant shall: (1) certify that the Lease is in full force and effect and (2) certify the commencement and termination dates of the Original Temp. (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 terminate the same, and Teoant hereby waives notice to vacate the Premises and agrees that Landlord shall be entitled to the benefit of all provisions,of law respecting the summary recovery of possession of Premises holdiug over to the same extent as if statutory notice had been given· from a teuant (c) The period commencing on the date hareof and termiuating on the date immediately prior to the Commencement Date is herein referred to asthe "Initial Term," and the period from the Commencement Date to the stated expiration date (and all extensions or renewals thereof) or earlier temfination of this Lease is herein referred to as the "Original Tenn·" For the purposes of this Lease the word "Term" shall be deemed to mean the Initial Term and the Original Term and all extansions or renewals thareof (hereinal~er collectively called the "Term"). During the Initial Term, all of the temps, covenants and conditions hereof shall be in full force and effect, but Tenant's mouetary obligations hereunder, except for payment of the utility, electricity and the HVAC Charges, shall be abated uutil the Original Term has colnmeneed. SECTION 1.2 Failure of Tanant to Open; Failure to Operate It is expressly understood and agreed that Landlord does not consider the Fixed Minimum Rent in itself a fair and adequate rental for the Premises and would not have entered into this Lease unless Tenant had obligated itself to pay Pereantage Rent which Landlord expects to supplement the Fixed Minimum Rent to provide such fair and adequate rental return. Therefore, (i) if Tenant fails to open for business at the Commencement Date and/or (ii) thereafter, if Tenant fails to continuously operate its business in accordance with the terms of this Lease or vacates the Premises prior to the expiration of the Tem~, Landlord will suffer damages in an amount which are not readily ascertainable and thus in any such 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 thstallment of Fixed Mthimum Rent for each day which Tenant fails to so operate. SECTION 1.3 Certain Definitions "Attorney's Fees" has the meaning set forth in Section 21 ·25. 'Accountlug Period" means the permd consisting of twelve (12) consecutive calendar months, cmnmencing 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 meaning set forth in Paragraph B of the Indenture of Lease. 'Common Areas means all areas, space, facilities, equipment, aud signs, 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, concessionaires, licensees, customers and other invitees. If and to the extent made available by Landlord, Cmnmou Areas shall include, but not be limited to, the sidewalks, parking areas, access roads and drives, driveways, parking decks, bridges, landscaped areas, truck servieeways, tmmels, loading docks, open and enclosed pedestrian walkways, corridors and mails, courts, stairs, roofs, skylights, siguage, ramps, elevators, escalators, comfort and first aid stations, public washrooms, community hall or anditorium, parcel pickup stations, utility lines and utility rooms. "Deliberate Events of Default" has the meaning set forth in Section 19.2. "Early Temaination Date" has the meaning set forth in Section 4.4(c). · E iv' o nnental Statt. ~s" has the mca fng set forth in Section ~.30). ."Eveut of Default' has the meaning set forth in Section 19.1. "Excluded Areas" has the meaning set forth in Section 3.1 (d). "Gross Sales" has the meaning set forth in Section 2.2. "Hazardous Material" has the mean'ng set forth in Sectmn 21.23(a). "HVAC Charge" has the mcan'ng set forth m Section 12.4. ' Initial Term" has the meaning set forth in Section 1. I (c). "Lease Year" means the twelve (12) f~ll calendar months of the Term commencing with the January 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 the 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 in Section 4.4(c). "Marketing Charge" has the meaning set forth in Section. 15.i. "Marketing Fund" has the meaning set forth in Section 15.1. "Media Charge" has the meaning set forth in Section 15.2. Med a Fund has the mean ng set fort ~t in Section 15.2. 'Operating Coats" has the meaning set forth in Section 7.2. Or gmal Term ms he meaning set forth in Section 1.1.C. "Percentage Rent" has the meaning set forth in Paragraph D in the Indenture of Lease. Percentage Rent Gross Sales Base has the meaning set forth in Paragraph D in the Indenture of Lease. "Premises" has the meaning set forth in Paragraph A in the Indeuture of Lease. "Remediation" has the meaning set forth in Section 21.23(¢). "Rental Adjustment Date" has the meaning set forth in Section 2. l (d). "Shopping Center" has the meaning'set forth in Paragraph A in the Indenture of Lease. · "Taxes" has the mean'rig set forth tn Section 3.1. "Tax Rent" has the meaning set forth in Section 3.1. "Tax Year" has the meaning set forth in Section 3.1. "Teivn" has the meaning set forth in Section 1,1(e). aant s Work has the meaning set forth in Sectmn 4.2(b), ARTICLE 2 RENT SECTION 2.1 Percentage Rent (a) The Percentage Rent shall be payable without prior demand and without any setoff or deduction whatsoever, at the times set forth hereinafter at the place then fixed for the payinent of Fixed Mininmm Rent. PIIILa I\1149973~2 070593.000 6 ~ (b) Not later th,._, thirty (30) days after the expiration ot me first" ,, Lease Year of the Temt and, ~nless Landlord exercises its option as set forth in tile next sentence hereof, thereafter not later than thirty. (30) days after the expiration of eacb subsequent Lease Year in the Term, Tenant shall pay to Landlord the Percentage Rent due for the Lease Year in question. In the event that Percentage Rent shall be payable for any Lease Year in tbe Term, after the expiration oftbe first Lease Year containing twelve (12) complete calendar months, Landlord may require Tenant to pay, as Additional Rent, together with each monthly installment of Fixed Mininmm Rent due hereunder commencing with the first sucb payment due immediately after the receipt by Tenant of such notice an anmunr equal to one- twelfth (l/12th) of eighty percent (80%) of the Percentage Rent payable fox- the im~nediately preceding Lease Year. Thereafter, Tenant shall continue to pay estimated payments of Percentage 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 moothly payments of Percentage Rant may, at Landlord's option, be adjusted at the expiration of each subsequent Lease Year after receipt by Landlord of Tenant's statement referred to in Section 2.3Co) to an amount equal to one-twelfth (l/12th) of eighty percent (80%) of the Percentage Rent payable for the Lease Year imlnediately preceding such adjustment and eommancing with the payment of Fixed Minimum Rent due innnndiately after receipt by Tanant 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 shall pay the Landlord an amount ceuqUrraelntt°Ltle~;ea~reeaSr.aid monthly 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 tban twelve (12) 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 Saies Base obtained by multiplying the applicable Percantage 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 dehorn nator of wh ch shall be three hundred sixty-five (365). ' ' (d) In the event tile amount of the Percentage Rent Gross Sales Base set forth herein is subject to adjustments during the Term, and the date on which such adjustment is to occur (the "Rental Adjustmeut 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 off (1) the lesser Percentage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by a fraction, tbe umnerator of which shall be the number of days in the period commencing on the first day of the Lease Year in which the Rental Adjustmant Date shall fall and ending on the day immediately prior to the Reutal Adjustment Date and the denominator of which shall be tlu'ee hundred sixty-five (365), plus (2) the greater Percentage Rent Gross Sales Base set forth in the Indenture of Lease multiplied by a fraction, tbe numerator of which shall be the number of days in the period commencing on the Rental Adjustment Date and ending on the last day of the Lease Year in which the Rental Adjustment Date sball fall and the danominator of which shall be three hundred sixty-five (365). (e) Except as provided herein to the contrary, there shall be no abatement, apportiomnent or suspension of the Percentage Rent payable hereunder. If pursuant to any other section of this Lease, Tenant 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 which the Fixed Minimum Rent shall have been abated, apportioned or suspended; and during any and all Lease Years in which there shall be one or more such periods, the Percentage Rent Gross Sales Base shall be reduced in the same proportion as the Fixed Mininmm Rent shall bave been abated, apportioned or suspended. (f) If during any Lease Year the Premises shall not be open for business on one or more days ou which Tenant is obligated to conduct business pursuant to this Lease and for which days Tenant shall nnt be entitled to an abatement, apportionment or suspension of the Fixed Minimum Rent~ the Percantage Rent Gross Sales Base shall be deemed to be reduced to zero for such days. In the event that any reductim~ 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 the Percentage Rent for such Lease Year shall be determined by averaging on a daily basis (excluding frmn 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 during such Lease Year. SECTION 2.2 Gross Sales Defined (a) The words "Gross Sales" as uses herein shall mean the gross amount of all revenue generated by sales, rental, performance of services or otherwise by Tenant and/or by any subtenant, Iiceusee or concessionaire in, at or from the Premises (including, but not limited to, catalogue Sal PI [ILA I \l 14997~2 070593,000 7 (~ made at or from the Pret. ocs), whether for cash, credit or oth~. consideration, with snch other · cousidcration being determined at fair market value and financing charges on all Gross Sales (wilhout 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 originating in, at or fi'om the Premises, whether delivery or performance is made from the Premises or from some other place; (2) pursuant to mail, telephone, telegraph, telecopy, fax, interact, closed TV circuit, and other devices, autmnated or otherwise, whereby orders are received at the Premises or (3) which Tenant or any subtenant, licensee or concessionaire in the nom~al course of its business would attribute to its operations at the Pre~nises. Gross' Sales also include all deposits not refunded to purchasers. Each sale upon installment or credit shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Teuant shall receive payment therefor. (b) Tile 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 between stores of Tenant where such exchange is made solely for the convenient operation of Tenant's business and not for the purpose of consummating a sal~ made in, at or from the Premises, (2) returns to shippers or manufacturers, (3) cash or credit refunds to customers on transactions otherwise included iu Gross Sales, (4) sales of fixtm'es, machiuery and equipment after use thereof in the conduct of Tenant's busiuess in the Premises, (5) amounts collected and paid out by Tenant for any salas tax imposed by any duly constitated govenmaental authority provided such tax is both added to the selling price as a separate and distinct anaount in addition to the regular price f Tenant s merchandise and 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 mmual Gross Sales, (7) receipts from the permitted pay telephone 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 caleudar month in the Term, Tenant shall submit to Landlord an itemized and accurate written statement signed by Tenant, its duly authorized officer or duly authorized representative reflecting the' full amouut of Gross Sales made during the preceding calendar month and certifying same to be tree and correct. If the Commencement Date herenf shall not be the first day of a calendar month, the period between the Commencement Date and the first day of the first full calendar month in the Term and Tenant's Gross Sales during such period shall be added to the 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. I (b) hereof, Tenant shall submit to Landlord a complete written statement of Tenant's Gross Sales for the preceding Lease Year in such reasonable detail, as requested by Landlord, accompanied by a statement signed and certified by Tenant, its duly authorized officer or representative, stating that the Gross Sales reported by Tenant are in accord with tile amount thereof set forth on Tenant's regularly maintained books and records and that the Gross Sales confum~ with and are computed in compliance with the definition of Gross Sales contained in this Lease. Simultaneously with the delivery of the statement referred to in the preceding sentence, Tenant shall pay to Landlord the full unpaid balance of the Pementage 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 io 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 wifuin thirty (30) days; provided, if such overpayment is for the last Lease Year, Landlord shall not be obligated to refund to Tenant the amount of such overpaymeut until Tenant has fully performed all of its obligations under the Lease, is not 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) The acceptance by Landlord of payments of Percentage Rent or reports thereof sbalI without prejudice, and shall in no event constitute a waiver of Landlord's rights to claim a deficiency of such Percentage 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), within the perio? se} forth therein, Landlord shall have 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 shall be binding upon Tenant and Tenant shall promptly pay to Landlord the cost of the examination, together with the full balance of Pementage Rent due and payable for said Lease Year. PIIILA n1149973\2 070593.000 8 SECTION 2.4- Tenant's R~...,rds . (a) Tenant covenants and agrees that the business records of Tenant and of any subteeant, licensee 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 accordance with generally accepted accounting principles and sufficient to establish an audit trail with respect to ail operations of the business to be conducted in or from the Premises, including, xvithout 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 ail 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 documents and papers in any way relating to the operation of such business (all of which are hereinafter collectively referred to as "books and records"), for at least three (3) years from the end oftbe Lease Year to which they are applicable, or, if an audit is commenced or ifa controversy should arise between tbe parties hereto regarding the rent payable hereonder, until such audit or controversy is terminated even though such retention period may be after fue expiration of the Term of, or earlier termination of, this Lease. Such books and records shall be open at all reasonable times during the aforesaid retention period, after prior written uotice to Tanant, to tbe iuspection 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 right to require of Tenant, its agents and employees, such information or explanation with respect to such books and recto'ds as may be necessary for a proper examination and/or audit thereof. If for any reason Tenant does not fully comply with tbe above obligations on the date designated by Landlord for an inspection and/or audit of Tenant's books and records, and Landlord agrees to reschedule such inspection and/or audit, Tenant shall reimburse Landlord, 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 examination and/or attdit, 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 ascertainabIe and thus, in such event, Landlord in addition to and not in lieu of any ofl~er remedies which LandIord has under this Lease, at law or in equity, sball have the right, at its option, to collect, as liquidated damages and not as a penalty, an amount equal to twenty percent (20%) of the greater of (1) Perceutage Reut reported for the period or periods in questiou, or (2) the am~ual Fixed Minimuln Rent payable for the period or periods iu 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 mmum from the due date thereof to the date of payment, but not in excess of the highest rate allowed by law. In the event any check tendered by Tenant to Landlord is not honored on initial presentation, Tenant shall pay Landlord tbe greater of Thirty-Five Dollars ($35.00) or the amount 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.l, he word Taxes shall Include all Taxes attributable to improvemeuts now or hereafter made to the Shopping Center or any part thereof or attributable to the present or future installation in tbe Shopping Center or any part thereof of fixtures, machinery or equipment, all real estate Taxes, assessments, water and sewer and other governmental impositions and charges of every kind and nature whatsoever, nonrecurring as ~vell as recurring, general or special assessmeuts, ordinary as well as extraordinary, foreseen and unforeseen, all metropolitan di cbarges, all assessments fo] .chools, public improvements and benefits, charges, fees or assessments for , all go~,enunental services or purported benefits to the Shoppihg Cehier, any business or special services district, mercbants' advertising, use or similar tax, assessment or levy applicable to owners of real estate or to any retail establishment, whether payable to a state, county or nmnicipal authority or to a separately assessed service district, payments in lieu of Taxes, all business privilege taxes, trash geueration taxes aud 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 on the use or occupancy of the Shopping Center or any part thereof, or on the rent payable under any' lease or in comaection with the business of renting space in the Shopping Center, and eacb 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 any iuterest ii], the Sbopping Center or any part thereof, or any 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 iu Section 3.1(d) hereof). The word "Taxes" sball not include any charge, anch as water meter charge and sewer rent based thereon, which is measured by the consumptiou by the actual user of the itel]] or service for wbich the cb.argo is made (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 nmltiplying the total of ail Taxes payable during such Tax Year by a fraction, the numerator of which shall be the square feet of floor area of the Premises and the danominator of whicb shall be the average of the total amount of square feet of"leasable floor area" (as defined aod computed pursuaut to Sectiou 3.1 (d) hereof) in the Shopping Center in 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 iustalhnent of Fixed Minbnum Rent, without demand or setoff, an amount equal to one-twelfth (I/12th) of the annual amount payable on account of Tax Rent, as set forth in the Sectiou H of the Indenture of Lease for each square foot of floor area contained within the Premises. Such amount may be adjusted by Landlord at any time during the Term to an amount equal to one-twelfth (1/12) of the Tax Rent payable by Tenant for the preceding Tax Year. f Tenant s payment on account of Tax Rent for any Tax Year exceeds the I ' actnal amount payable by Tenant as Tax Rent for such Tax Year, Landlord shalI 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 sball refund such excess to Tenant within thirty (30) days; to the extent Tenant is not iudebted to Landlord and provided Tenant bas fully performed all of its obligations tinder this Lease and has vacated the Premises in accordance with the provisions hereof. In the event Tenant is indebted to Landlord for any reasou whatsoever, Landlord may deduct anch amount 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 evidance of Taxes due or payable all of wbich are hereinafter collectively referred to as a "Tax 11 (wbether such bill is a final bill, an Bi" estimate of armual 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 written notice from Laudlord containing a written statement setting forth the Taxes for wbich Landlord has received a Tax Bill, Tenant's share of Taxes, and Tenant's payments theretofore made on account of such Tax Rent. All subsequent monthly paymants on account of Tax Rent made by Tenant during such Tax Year after date of written notice of such bill and statement sball 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 couclusive evidence of the 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 in the Term whether or not Landlord shall theretofore 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 Reut billed to Tenant to the expiration of the Tenn. If Landlord has not received a tax bill and/or has not ascertained the leased floor area of the Shopping Center fol' such period, Landlord sbaIl estimate tbe amount of such last installment of Tax Rent on the basis of information contained in the tax bill most recently received by Landlord, and/or the leased floor area of the Shopping Center, anbject to adjustment when Landlord receives a Tax Bill which includes the period from the date of such Tax Bill to the expiration of the Teml and/or confirms such Ieased floor area. Tenant shall pay such adjusted amount upon billing by Landlord. (d) As used irt this Lease, "Excluded Areas" shall mean portions of the Sbopping Center used or designated on Exhibit "A" for use in connection with the operation of a depa~:ment store, premises 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, all buildings shown on Exhibit ttac sea hereto w nc ] are labeled "excluded", and any portions of additions to the Shopping Center referred to in Section 4.3(b) wbich Landlord hereafler designates as an Excluded Area. For the purposes of this lease, the PI 0LAni 149973~ 070593000 10 ~ xvords "leasable floor area ahall mean the square feet of floor area in enclosed buildings xvbich are erected on portions of file Shopping Center other than Excluded Areas and which are capable of being occupied pursnant to an agreement with Landlord, and which are for a term greater than one (1) year. In the event of any dispute as to the floor area in tile Shopping Center or any portion thereof (other than the Premises wbich sball be determined by the provisions of the Indenture of Lease), the substantially accurate determioation of Landlord shall be binding upon file partie~. (e) For the purpose of this Lease, the words "Tax Year" shall mean the twelve (12) full calendar months of the Term commencing with the January 1st immediately following the Commencement Date and ending December 31 st of such calendar year and each succeeding twelve (12) month period thereafter commencing in the .Term; provi(ed, h. owever, the first Tax Year shall commence on the Commencement Date and terminate on the munedmtely succeeding December 31 st. (O If the Original Term cormnences or terminates (other than by reason of Tenant's default) on a day other than the first or l~t 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 not 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 in obtaining such 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 aoy proceedings with respect to the assessed valuation of the Shopping Center or any part thereof for the purpose of securing a tax reduction. In the event the Landlord shall retain any consultant to uegotiate the amount of Taxes, tax rate, assessed value and/or other factors influencing the amount of Taxes aud/or institute ally administrative and/or legal proceedings challenging the tax rate, assessed value or other factors influenciug the anlount 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 ail such reasonable fees, reasonable attorneys' and appraisers' fees and all disbursements, court costs and other similar items paid or incurred by Landlord during the applicable Tax Year with respect to such proceedings which is obtained by multiplying the aggregate of such sums by tbe fraction set forth in Section 3.1(b) bereofi Landlord sball have Ilo obligation to contest, object to or litigate the levying or imposition of any Taxes and may settle, compromise, consent to, waive or other~vise detemline in its discretion any Taxes without the consent or approval of Tenant. (b) If at any time daring the Term, as an addition to or substitute for Taxes, in whole or in part, as same are set forth in Section 3.1(a), a~d 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, imposition, charge, assessment, levy, excise or license fee is levied oil, imposed against or measured, computed or determined, in whole or in part, by: (1) rents payable hereunder (Fixed Minimum, Percentage, Tax and/or Additional) or (2) the value of any lien placed against the Shopping Center or against the real property comprising the Shopping Center or any thereby, obligations secured or (3) the economic value of the Shopping Center, or ally portion thereof, or (4) if any other tax (except Landlord's capital stock, income, inheritance, succession or estate tax), imposition, charge, assessment, levy, excise or license fee which is not referred to in Section 3.1(a), however described or denoted, shall be levied or imposed by any such jurisdiction, to the extent that the cost of any of the foregoing shall be imposed, either directly or indirectly, on Landlord, such tax, imposition, charge, assessment, levy, excise or licens~ fee, shall be deemed to constitute "Taxes" for the purposes of tiffs Section 3.1. SECTION 3.2 Other Taxes (a) In additiou to any other Taxes due pursuant to this Article, Tenant shall pay to tile 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 witbout limitation, 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 consideration to be received by Landlord under this Lease, and other simifar taxes (not including, however, Landlord's income taxes) levied, imposed or assessed by the state in which tile Pranlises is located or any political subdivision thereof or other taxing authority upon any rent payable hereunder. Whenever Tenant pays any consideration under this Lease, including without limitation, Fixed Miuimum Rent, Percentage Rent, Tax Reut and Tenant's sbare of Operating Costs, Tenant shall also pay to Landlm-d, at the time of such payment, any taxes measured by the amount of consideration paid herannder. II (b) Tenant shall Jo pay to the appropriate agency or t,. ~andlord if Landlord is charged , with 111¢ responsibility of collecting such monies, prior to the time the same shall become delinquent or payabte with penalty, all taxes imposed and/or assessed upon Tenant's inventory, furniture, trade fixtures, apparatus, equipment or leasehold improvements 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 made any representations as to the present or future condition of the Prenris~s, the presence or absence of I-Iazardous Materials (as defined in Section 21.23) therein or what items the prio? occupant of the Premises is required to or may leave in the Premises. Landlord shall not be Iiable 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 every 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 from the date hereof, at Landlord's option this Lease shall be null and void and neither party shall have any liability hereunder 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 iu accordance with the plans and specifications referred 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 storefrunt 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 heating load calculations, electrical panelboard schedules and loads and suer 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 hereo0 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 Tenaut's plans and specifications and has turned over possession of the Premises. All such work shall be promptly commenced and thereafter continued with due diligence to the end 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 the Indenture 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, renovations, alterations, or any other work in the Premises, Tenant shall cause its general contractor to execute and fi'l~ 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, without limitation, any work required by Section 21.23) are collectively referred to as "Tenant's Work." All of Tenant's Work shall be completed at Tenant's'sole cost and expense. In performing Tenant's Work, Tenant shall comply with the following requireomnts: 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 all risk builder's risk insurance in the standard form for the State where the Shopping Center is located. Said insurance shall cove? the full replacement value of all wm-k 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 ($10,000.00). PHiLA I\1 i49973U 070593.000 12 (~ 2. At a,. times during Tenant's Construction ,criod, Tenant's contractors and · subcontractors shaIl maintain in effect worker's compensation insurance as required by the laws of the State in which the 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 all or any portion of Landlord's Work is also damaged or destroyed by such casualty, Landlord shall notify Tenant when repairs or reconstmction of Landlord's work.is substantially completed and, within fifteen (15) days after receipt of such notice, Tenant 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 by Landlord for any aspect of suer 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 responsible 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 the Shopping Center, and deposit it in receptacles, if any, provided by Landlord or otherwise remove the same from the Shopping Center. Tenant shall contain all construction materials, equipment, fixtures, merchandise, shipping containers and debris within the Premises. Malls, courts, arcades, public corridors, Scl*ice corridors and the exterior of the building shall be clear of Tenant's equipmant, merchandise, refilse, and debris at all times. 7. To the end that there shall be no labor disputes which would interfere with any construction occurring in the Shopping Center or the operation thereof, or any part thereof including, but not limited to, the Premises, in performing any Tenant's Work, Tenant agrees to engage the services of only such 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 with the employees, contractors and subcontractors of ali 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 wilI work in harmony and without causing any labor dispute with each other, with Landlord's employees, contractors and subcontractors mad with the employees, contractors and subcontractors of all others working in or upon 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 perform any portion of Tenant's Work for Tenant in or upon the Premises. 8. At any time and from time to time during the perfommnce 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 p6rfonned in a thoroughly first-class and workmanlike maturer, shall incorporate only new or like new materials and shall 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 that Tenant's Work will not interfere with the operation of the Shopping Center or interfere With or delay the completion of any other construction within the Shopping Center, and each such contractor and subcontractor shall comply with all procedures and regulations prescribed by Landlord or Agent for integration of Tenant's Work with that to be performed in connection with any construction in the Shopping Center and in com~ection with tbe operation of the Shopping Center. I0. Neither Tenant nor its contractors or subcontractors may use any space within the Shopping Center (except the Premises) for storage, handling and moving of materials and equipment, and if Tenant or such contractors and/or subcontractors 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 terminate such use or remove all of Tenant's and such contractor's or subcontractor's material, equipment and other property from such space without Landlord being liable to Tenant and/or such contractors or subcontractors and the cost of such tem~ination and/or removal shall be paid by Tenant to Landlord. It shall be Tenant's responsibility tfl:~.~ cause each contractor and subcontractor to maintain continuous protection of adjacent property and · improv'ements against damage by reason of Tenant's Work. In addition, if a barricade, temporary storefront, lights or guardrail is deemed to be necessary by Landlord, Landlord shall instalI same and Tenant 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 request and nfs design by Landlord. approved 11. Tananl shall promptly pay all coutractors and materialmen so as to minimize the possibility of a lien or claim of lien being filed with respect to the Premlsas or the Shopping Canter, 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 airy other right or remedy which Landlord may have under this Lease, at laxv or ill equity, Landlord may, bnt shall not be obligated to, discharge the same either by paying the anlount claimed to be due or by procuring the discharge of such lien or claim of lien by deposit or by bonding proceedings, and in any such evant, Landlord sball be entitled, if Landlord so elects, to compel the prosecution of any action for the foreclosure of such iien or claim of ien by the lienor with nterest, .costs and expenses. Any amount so paid by Landlord mid all costs and expenses incurred by LandJord in connection therewith or in connection with insuring the title to the Shopping Center or any interest herein fi'ce of such lien or claim of lien, together with a late charge thereon at the rate set forth ill Section 2.6, fi'om the respective dates of Landlord'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 Tenant to Landlord on demand. (c) Within ten (10) days after initially opening the Premises for business with the public, Tenant shall supply to Landlord the following: 1. An executed and acknowledged release of mechanic's liens with respect to the Premises executed by Tenant's general contractor and by every subcontractor and supplier of Iabor and/or materials engaged in Tenant's Work. 2. Properly issued certificates evidencing acceptance or approval of tbe Premises by appropriate govermnental authorities, including the underwriter's approval of Tenant's sprinkler installation and electrical system. 3. A set of as-built plans and specifications for Tenant's Work prepared and sealed by Tenant's architect, together with names and addresses of Tenant's electrical, plumbing, and otber contractors. (d) Nothing in this Lease shall be construed as in any way constituting a consent or request by Landlord, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer, or materialman for the performance of any labor or the furnishing of any materials for any specific or general improvement, alteration, or repair of or to the Premises or to any buildings or improvements thereon, or to any part thereof. Notwithstanding anything 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 construed as evidencing, indicating, or causing an appearance that any erection, construction, alteratimr or repair to be done, or caused to be done, by Tenant is or was in fact for the immediate use and benefit of Landlord. Tanant covenants and agrees that Tenant shall have no r/ght, authority or power to bind Landlord, or any interest of Landlord in the Premises or Shopping Center, for any claim for labor or materials or for any other charge or expense incurred in connection with tbe construction of any iruprovements 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 Shopping Center. SECTION 4.3 Roof, Walls, Changes and Additions to Shopping Center (a) Landlord hereby reserves the exclusive right at any time and from time to time to use all or any pal~ of the roof, exterior walls and air space above the finished ceiling of the Premises for any purpose; to erect scaffolds, protective barriers or other aids to construction on, aroand and about the exterior of the Premises, provided that access and visibility to the Premises shall not be substantially denied. Landlord also reserves the right after written notice to Tenant to enter the Premises (except that in the 'event of an emergency, no notice shall be required), at any time and from time to time to make soch repairs, additions or alterations as it may deem necessary or desirable to the Premises, to the building in which the Premises is contained, or the Shopping Center ill ganeral; to sbore the foundatians aed/or walls thereof and/or to install, maintain, use, repair, inspect and replace foundations, columns, pipes, ducts, conduits and wires leading through or located adjacent to the Premises and serving other parts of the Shopping Center. Landlord sball use reasonable efforts to install such pipes, ducts, conduits I'HILA/\I t'~ 9973x2 070593.000 14 ~ or ~vires in the space above ,. ,hunt's finished ceiling (or if Tenant doe~ not have a finished ceiling, then , iu the sl~ace above the height where, in Landlord's opinion, a finished ceiling would othenvise exist), or another location which does not materially interfere with Tenant's use of tbe Premises. Landlord's rights hereuuder may be exercised by Landlord's designee. Tenant shall not remove or tamper with any such pipes or other apparatus installed by Landlord. (b) Lmldlord hereby reserves the right at any time to make alterations or additions to, and to build add t ona stories on, and to build any adjoining buildings in the Shopping Center, including the building in which the Premises are contained, and to constmct other buildings or improvements in the Sbopping Center and Tenant shall have no interest of any kind whatsoever itl the said additions or additional stories or adjoining buildings. Landlord also reserves the right to reduce or enlarge the 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 anlarged, to constmct umlti-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 dfford to the person causing or authorized to cause such excavation license 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 agaiust Landlord or diminution or abatement of rent. (d) Landlord reserves the rigbt to install heating, air-canditionil~g, ventilating equipment, kiosks, fountains, benches, seating arrangements, promotional activities, seasonal displays, temporary stores, amusement devices and other amenities in certain portions of the Common Areas selected by Landlord from th'ne to time, all of which sball be done at Landlord's sole cost and expense and xvithout any approval and consant of Tenant. (e) Tenant acknowledges that Lm~dlord's implemeutation of its rights set forth itl Section 4.3 may interfere with access to or visibility of the Premises or the availability of certain parking areas aud 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 possession of tbe Premises nor shall the same render Landlord liable in any manner to Tenant for any incmlvenieuce, disturbance, loss of Business or any other occurrence arising from the exercise of ally such rights. SECTION 4.4 Right to Change Shopping Center and Relocate Tenant; Early Termination (a) The purpose oftbeplan hereto annexed as E ' " ' ' xh~b~t A s so e y to show the approximate locatiou 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 thereon. Landlord hereby reserves the right at any time and from filne to time to make changes or revisions in sucb plan and the Sbopping Center, including but not limited to, additions to, subtractions from, and/or relocations or rearrangements of, the building, parking areas, and other Common Areas shown on such plan. (b) Notwithstanding anything to the contrary contained in this Lease, in co~mection with any expansion, enlargement or rearrangement of the Shopping Center or any aspect thereof, Landlord shall have the right ou mae or more occasions to require that Tenant relocate from the Premises to a locatian designated by Landlord ~ meateu t'rem~ses ) 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 tile Relocated Premises and the date by which Landlord will require that Tenant complete such relocatiou. 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 th accordance with the provisions bereof. In the event Tenant faiIs to notify Landlord that Tenant will relocate within the aforesaid time fimne, or fails to notify Landlord of its decision with respect to such relocation, or Tenant refuses to relocate, then at any time thereaf[er Landlord may cancel this Lease upon ninety (90) days prior written notice to Tenant, in whicb event this Lease will expire on such date as though the date set forth in the letter of cancellation was fixed as the expiration date bereof, and Landlord shall have no liability to Tenant as a result of such cancellation. If Tenant agrees to so relocate, after notice fi'om Landlord to do so, Tenant shall, at its sole cost and expense ("Relocafion Costs"), comnmnce aod diligenlly proceed to completion all work required to make the R~loca~ed Premises suitable for Tenant's business, physically relocate to such Relocated Premises and comlnence business therein not later than the date specified iu Landlord's notice to Tenant whicb date shall not be less than thirty (30) days fi'om the date of said uotice, and Landlord shall reimburse Tenant for its Relocation Costs an amount equal to the unamortized portion of Tenant's Work, exclusive of equipment, removable trade fixtures, furniture, merchandise and other re-usable items plus reasonable cost and expenses of relocating. Prior~) miL^ In 149~3x2 o~o5~.ooo 15 perfomfiug such work, Tena,~t shall submit to Landlord for approval the pIans referred to in Section 4.2 ' disclosing all of Tenant's Work to be performed in the Relocated Premises and no such work shall commence until such plans have been approved by Landlord. In any event, not later thau the date specified for the completion of such move, and whether or not Tenant shall have comnaenced business in the Relocated Premises, Tenant shall vacate the Premises and peaceably sun'ender possession thereof to Landlord in accordance with the provisions hereof. Commencing as of the last day by whicli such relocatiou must be accomplished, or if sooner, the day Tenant cnnnnences business in th~ Relocated Premises, all of Tenant's right, title and interest in and to the Premises sball cease and temfinate and fi.om and after such date the Relocated Premises shall be deemed demised herennder in lieu of the Premises. At the request of Landlord, the parties shall enter into an mnendment to this Lease which shall confi~m the area and size of the Relocated Premises· The Fixed Minimum 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 iii the Lease as the existhig area of the Premises bears to the area of the Relocated Premises. (c) Notwithstanding anything contained herein or in tbis Lease to the contrary, in the event Landlord desires to entdr into a lease (a "Major Tenant Lease") with a "Major Tenant" (as hereinafier defined) and, as a condition of such Major Tenant Lease, the Landlord is required to grant an exclusive to such Major Tenant which prohibits the sale of any of Tenant's permitted use items set forth iii Paragraph E of the Indenture of Lease, then and in such event, Landlord shall have the right .... to termiuate tbis Lease on the date (the Early Termlnatmn Date") which shall be ninety (90) days after written notice thereof from Landlord· Tenant shall surrender the Premises to Landlord as required by the terms of this Lease on or before the Early Termination Date. If Landlord exemises its right to terminate under this paragraph, Landlord shall reimburse Tenant for its reasonable, out-of-pocket costs of moving its equipment, removable trade fixtures, furniture, mercbandise and otber re-usable items to another location not more than five (5) miles from tbe Shopping Center plus th'e Unamortized portion of Tenant's Work, exclusive of equipmeut, removable trade fixtures, furniture, merchendise and other re-usable items. ARTICLE 5 CONDUCT OF BUSINESS SECTION 5.1 Use of Premises (a) Except as otherwise specifically provided herein, eomn;encing on the Commencement Date and thereafter fur the balance of the Total, Tenant shall continuously occupy and use the Premises solely for conducting the business specified in the Indenture of Lease as the permitted use, and Tenant will not use or permit or suffer the use of the Premises for any other 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 Tenant's covenant to continuously operate in the Premises as above said, and Tenant's failure to continuously operate as above said shall be deemed a material breach of the Lease. In addition, Tenant agrees that Tenant sball not operate or oanse or permit to be operated any catalogue, mail, or telephone order sales in or from the Premises except the incidental sale of merchandise which Tenaut is perarftted to sell over tbe counter to custolners in the Premises pursuant to the permitted use set forth in the Indenture of Lease, nor shall Tenant divert elsewhere any bushiess which would ordinarily be transacted by Tenmat at, in, on or from tbe Premises. The authorization of the use of the Premises for the business purposes set fortb in the Indenture of Lease does not cunstitute a representation or warranty by Landlord that any particular use of the Premises is now or will cnntinue to be permitted under applicable laws or regulations. (b) Tenmat shall not permit, allow or cause any of the followhig to be conducted iii the 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· Teuant shall not use or permit any use of the Premises, except in a manner consistent with the general high standards of merchandising in the Slloppmg Cot?r, nor shall Tenant's advertising indicate or mply that Tenaut is operating its business in a manner winch is uot consistent with the general high standards of merchandising in the Shopping Center. Notbhig 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 contrary, including Paragraph E of the ludeoture of Lease captioned "Use of Premises", Tenant is specifically prohibited from selling or distributing tobacco ~'papers", pipes of the type and nature commonly associated with the smoking of marijuana (e.g. "water pipes"), "roach clips", cocaine "spoons" and all other types of smoker's novelty items, inaterials or paraphernalia which are or may reasonably be. cons.trued to be, intended for use in connection with narcotics or other unlawful substances. ?nlLAI\1149973~2 070593 000 16 ~ (d) Because the adequacy of the rental hereunder depends upon Teuant's Gross Sales , whethor or not Percentage Rent is payable hereunder, Tenant agrees that connnencing xvith the Commencement Date and thereafter throughout the Term, Tanant 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 seaannable merchandise of the quality, kind, type and breadth which Tenaut 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 doring the hours set forth in Paragraph F of the Indenture of Lease. Tenant agrees that the hours dnring which Tenant is obligated to operate may be changed by Landlord from time to time provided that Landlm-d will not act in a discriminatory manner. (O Tenant shall operate and/or advertise the business operated at or from the Prenfises only under the uame set forth in the first page of the Indenture of Lease, unless and until the use of annther name is permitted in writing, by Landlord. Tenant represents that it is entitled to use said name pursuaut 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 portiou of the Common Areas for the placement of small tables and chairs to be used by its customers, provided Tenant shall have obtained all permits and approvals required by all local governmeutal autborities. The portion of the Common Areas that Teuant is pemfitted to place small tables and chairs is limited to the area outlined and labeled as "Permitted Outside Seating Area" on Exbibit "G" and limited to seating for not more than twelve (12) persons, exclusive of the seating permitted iuside the Prenrises pursuant to this subsection and subject to Landlord's right to reasmlably modify this requirement. Tenant's selection of the sinai1 tables and chairs is subject to Landlord's prior approval. Tenant s use of the Permitted Outside Seating Area is subject to the Landlord's roles mid regulations and such other requirements of the Landlord and all applicable govennnental and quasi-governmental laws, ordinances and regulations. Tenant shall cause its liability insurance policy maiutained hereunder to cover damages, losses and claims arising out of the use by Te ~a~t of the Permitted Common Area Seating. Tenant shall be solely responsible at its expense to keep and maintain tbe Permitted Common Area Seating in a neat and orderly condition, including routiue pick-up of litter, garbage or other refuse. SECTION 5.2 Storage Tenant shall warehouse, store and/or stock in tile 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 witbin the Shopping Center. Any goods, wares, merchandise, equipmeut or other property xvhich are stored by Tenant other lban within the Premises are stored at Tanant's sole risk and Landlord shall not be liable to Tanant in any manner whatsoever for any loss, whetber 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 Teuant covenants mid 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 adjoiuing 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 iu odor-proof, mt-proof containers within the interior of the Premises shielded from the view of tile general public uutil removed and will not bum any refuse whatsoever but will cause all such refuse to be removed by such person or companies, including Landlord, as may be designated ill writing by Landlm-d 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 prior written consent, place or maintain any merchandise or other arlicles in any vestibule or entry of the Premises or within two (2) feet of any entrance froln the Premises to tbe enclosed mall, on the footwalks adjacant thereto or elsewhere on the exterior thereof; (e) Will not use or pemait the use of any apparatus for sound reproduction or transmission, or any musical instlq~nlent, ill such manner that the sound so reproduced, transmitted or produced shall be audible beyond the confiues of the Premises, and will not use any other advertising medium, PlllLAI\1149tJ73k2 070593000 1 7 without limitation, flashing ~nts or search lights which may be he,~,d or experienced outside of the Premise. s; (F) Will keep all mecbanical apparatus free of vibratiou and noise which may be transmitted beyond the confines of the Premises; (g) Premises; Will not cause or permit objectionable odors to emanate or be dispelled from the (h) Will not solicit business, distribute handbills or other adve~lising matter or hold demoustratious iii 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 future stai~tes, laws, mlas, regulations, guidelines, .orders, ordinances, directives and other requirements of applicable federal, state and local governmental authorities, commissious, boards and agencies and all present and fi~ture requirements of common law; with respect to (i) Tenant's obligations under this Lease, (ii) the Premises, (iii) Tenant's use of the Premises and Shopping Center, (iv) any work to be perfomled in the Premises by Tenant, (v) the Americans with Disabilities Act of 1990 as it rel~/tas to the Premises and (vi) the environment, 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, hazardous substances, hazardous waste or Hazardous Materials (herein collectively called "Envn'onmenta Statutes"). Tenant shall in a timely maouer secure and keep in full force and effect all pemfits, licenses and approvals required for the Premises mid Tenant's use thereof and Tenant shall make and file all notifications and registrations as required by Environmental Statutes. Tenant shall at all times comply with the terms and conditions of any such permits, licenses, approvals, notifications and registrations. In addition, Tenant shall also comply with all recommendations of the Factory Mutual llmurance Companies, the Insurance Services Organization, or other similar body establishing standards for all risk insurance ratings with respect to the use or occupancy of the Premises by Teuant, and will participate in periodic fire brigade instmcfion and drills at the request of Landlord and will supply, maiutain, repair and replace for tbe Premises any fire extinguishers 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 rules, regulations and Insurance 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 facilit es provided for that purpose by Landlord and will not permit any del very of goods, supplies, merchandise, or fixtures to or from the Premises to be made tlxrough any of the enclosed malls unless the Premises has no entrance other then on ancha lnall, in which latter case Tenant shall use its best efforts to schedule such defiveries 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 adjoining the Premises including, but not limited 1% sidewalks and loading docks free fromice and snow, and Tenant hereby agrees that Tenant is solely liable for any accidents occurring on said outside areas due or alleged to be due to any accumulation of ice and snow; (n) Will refer to the name of the Shopping Center in ail advertising done to promote sales 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, bu! Tenant shall not sell any goods, wares or merchandise bearing such name or logo without the prior 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 constmed as pennissign to coutiuue such use after such tenninatiou 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 s la not be used after the temrination of the Lease or regarding a location other than the Premises. In all local and regional advertising, in the event that Tenant specifies the location of any specific store it shall also specify, by Shopping Center name, the Premises. (o) Will not use the plumbing facilities for any other pnrpose than that for which they are constructed and will not permit any foreign substauce of any kind to be tturown therein and the expe of repairing any breakage, . i,ppage, seepage or damage, whether ,~.,:urring on or off the Premises, · resultin~g from a violation of this provision by Tenant or Tenant's employees, agents or invilees shall be borne,by Tenant. All grease traps and other plumbing traps shall be kept clean and operable by Tenant at Tenant's own cost and expense. Tenant shall keep the floor of the Premises and all penetrations thereof properly seaied and caulked so that water or other substances in use in the Premises shall not leak fi'om the Premises to any Common Area or adjoining stores or stores located below the Premises; (p) Will not permit any shopping car~s in the Common Areas even if taken there by customers; (q) Will not place or cause or permit to be placed xvithin the Premises, pay telephones, vendiug machines (except those for the exclusive use of Tenant's employees which 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 wbicb do not discriminate among the non-department store tenants, and to amend and supplement such roles 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 roles and regulations. To the extent practicable, the same shall be applied uniformly to substantially all non-department store retail tenants offue Shopping Center. (b) Landlord's rights and remedies in the event Tenant shall fail to comply witb and observe such roles and regulations shall be the same as though such tales and regulatioos 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 Canter is located, upon Tenant's business at the Premises so as to maximize Tenant's Gross Sales, and Tenant further acknowledges that any activity by Tenant within such geographical area in operating or participating in the operating of a 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 parties agreed. Accordingly, in the event that during the Term 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 indirectly owns, operates, is employed in, directs or serves afiy otl~e~ place of business, the same, or silnilar to, or competitive with, Tenant's business as set forth herein, within a radius of five (5) miles fi'om the outside boundary of the Shopping Center, which distance shall be measured in a straight line without reference to road mileage, dmn 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 tlris Lease, as fully as though such Gross Sales had actually been made from the Premises, or (iii) increase the annual amount of Fixed Minimum 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 ~a!endar year prior to the opening of such other business. In tim event Landlord so elects, all of the prov~smns of Article 2 hereof shall be applicable to the Gross Sales of, and all the books and records pertaining to, such competing store. SECTION 5.6 Parking Facilities Tenant and its employees shall park their cars only in those portions of the parking 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 automobiIe license 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 sucb changes occur. In the event that Tenant or its employees park their cars in areas other than such designated parking areas, then Landlord after giving notice to Tenant of such violatiou shall have the right to charge Tenant Txvanty- Five Dollars ($25.00) per day per car parked in any areas oflmr than those designated. ARTICLE 6 GRANT OF CONCESSIONS SECTION 6.1 Condition to Grant The provision against subletting elsewhere contained in this Lease shall be applicable so as to prohibit Tenant from granting concessions without the conseut of Landlord for the operation of nne or more departments of the business of Tenant, and any grant of concessions consanted to by Landlord sball 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 concession shall be deemed to be a part of the Gross Sales of Tenant for the purpose of detemfiniog the Percentage Rent payable to Landlord; (iii) all of the provisions hereuuder applying to the busiuess of Tenant 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 Olriy as part of the business operation generally conducted by Tenant on the Premises and uuder the advertised name of Tenant; and (v) at least seventy-five percent (75%) of the salas 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 coutrol 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 witbout limitation, the right to keep any enclosed Shopping Center 6pen only during the hours designated by Landlord) and Landlord shall have the sole right and exclusive authority to employ aud discharge all personnel with respect thereto. Landlord hereby expressly rose,wes the right frmn time to time to construct, maintaiu and operate lighting and other facilities, equipment and signs on ail of the Common Areas; to police and maintain security for the Common Areas; to use and allow others to use tbe Comnlnn Areas for any purpose; to change the size, area, level, locatiou and arrangement of' the Common Areas; to build mulfistory and/or subterranean parking facilities; to regulate parking by tenants and otber occupants of the Shopping Center and their respective employees, agents, subtenants, coucess!onaires and licensees; to anforce parking charges (by operation of meters, or other,.vise) with appropriate provisions for parking ticket validation for tenauts; to close temporarily, all or aoy pm~tinn of the Common Areas for the purpose of making repairs, changes or alteratinns thereto or performing necessary maintenance in connection with any emergeucy, in com~ection 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-customer parking; to establish, modify and enforce reasnnable rules and regulations with respect to the Common Areas and the use to be made thereof. For tile Term, Tenant is hereby given the license in common with fill otfie~s 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 prell, or the size, area, level, locatinn or arrangement of such Cmnmon Areas or the type of facilities at any time forming a part thereof be changed, altered, rearranged or diminished, Laudlord shall not be subject to any liability therefor, nor shall Tenaot be entitled to any compensation or diminution or abatement of rent therefor, nor shall such alteration, rea~Tangement, revocation, change or diminution of such Common Areas be deemed a constructive or actual ewct~on or otherwise be grounds for terminatiug or modifying this Lease, Iu order to establish that tile Shopping Center or any portion thereof is and will continue to remain private property aud to prevent a dedication thereof or the accrual of any rigbts to any person or to the public therenn, Landlord hereby reserves the unrestricted right, in Landlord's sole reasonable discretion, to close ali or any portion of the Common Areas to such exteut 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 person or the public thereon; provided, however, Landlord reserves the right at ally time and from thne to thne to dedicate to public use part or all of the ring roads, access roads, th'ives and utility lines, together with all easements required to effectuate such dedications, as it may see fit. SECTION 7.2 Operatthg 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 of tbis Lease, "Operating Costs" shall be those costs of operating, repairing, m~naging, mai~taining, and replacing the Common Areas and the Shopping Canter of which the Premises forms a part m a manner deemed by Landlord to be reasonable and appropriate including, but not limit costs and expenses, whether ,)ended or incurred of operating, repai,._.g, replacing, lighting, cleaning, .painting~ and maintaining (including, but not limited to, preventive maintenauce) such Common Are~ and tho Shoppiug Center and insuring the same (mad 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 thjury endorsement coveriug false arrest, detention or i~nprisomnent, malicious prosecution, libel and slander, and wrongful entry or eviction, worker's compensation insurance, plate glass insurance, contractual liability iusurance and fidelity bonds but excluding the insurance referred to in Section 7.4 hereot); removing s~iow, ice, rubbish and debris; inspecting, policing, providing security and regulating traffic; rental of sweepers, tracks and other equipment; depreciatiou (over a period not exceeding sixty (60) months) of machinery and equipment and other non real estate assets used in the operatiou and maintenance of the Shopping Center; maintaining, repairing and/or replaciug of paving, roofs, curbs, walkways, landscaping, drainage, on-site water lines, sanitary sewer lines, stoma water lines, Commml Area heating, ventilating and air-conditioning systems, floors, floor coverings, canopies, skylights, fotmtains, escalators, electrical lines and other equipment serving the property on which the Shoppiug Center or any part thereof is constructed; heating, ventilating and air-conditioning enclosed Common Areas at the same rate Lhndlord charges to tenants; unifon'ns and replacement of uniforms; the rental of musm programs, services and loudspeaker systems including the furnishing of electricity therefur; all costs incurred by Landlord in compliance with any enviroumental or other similar laws, rules, regnlations, guidelines or orders, including the cost of removing Hazardous Materials from the Shopping Center; the cost of obtaining and operating public transportatiou or shuttle bus systems used iu cmmection 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 and accomplisb the foregoing and au administrative charge equal to fifteen (15%) per cent of the total of all Operating Costs (exclusive of sucb 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 deterrniuative and binding on the parties. SECTION 7.3 Reimbursement of Landlord (a) For each Accounting Period during the Original Term, Tenant shall pay to Landlord; as Additional Rent, as Tenant's share of the Operating Costs, a sum equal to the product obtained by multiplyiug (1) the total Operating Costs for such Accountiug Period less all coutributions thereto actually made by occupants of any Excluded Areas by (2) a frantion, the numerator of which shall be the square feet of floor area of the Premises, aud the denominator of which shall be the average of the total anaount of square feet of leasable floor area in the Shopping Center ill effect ou tile last day of each caleudar quarter in tbe Term. (b) On the first day of each calendar month during that portion of the Term falling within the first Accounting Period during the Original Term Tenant shall pay to Landlord, in advance, without demand and without any setoffor deduction, as an esthnated payment ou account f Tanant s share of the Operating Costs an amount equal to one-twelfth (l/12th) of the sum obtained by multiplying the square feet of floor area of the Premises by the minimum mmual clam:ge per square foot set forth in Paragraph I of the Indenture of Lease. If the Commencement Date hereof shall not be the first day ora calendar month, Tenmat's payment of its proportionate share of Operating Costs for the fi'actional nmnth between the Cmnmencement Date and the first day of the first fitll 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 payment of Fixed Minimum Rent. (c) After the first Accounting Period, Tenant shall continue to pay such estimated amouut of Tenaut's proportionate share of Operating Costs on the first day of each month in advance without demand and witbout 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 dm'tug the Term on the basis of the projected Operating Costs for the subject Accounting Period, within Landlord's reasonable business judgment. Upon Landlord funrishing to Tenant a statement setting forth such revised estimated Operathag Costs, Tenant shall pay to Landlord such revised estimated share in equal lnonthly instalbnents, each such installment to be a sum equal to one-twelfth (I/12th) of such revised estimated Operating Costs, in advance on the first day of each calendar month thereafter until the next succeeding revisiou in such estimate. (d) Followiug the end of each Accounting Period, Landlord sbaI1 fumisb to Tenant a written statement, ii1 reasonable detail covering the Accounting Period jnst expired showing the total Operating Costs for such Accounting Period, the amount o£ Tenant's sbare thereof and payments made by Tenant with respect tbereto. All subsequant monthly payments on account of Tenant s share of Opera ing Costs made by Tenant during such Accounting Period after receipt of suc~ statement sla be a ted b Landlord as paymant oi account of Tenant's ob 1 atmn for ~ts share o PP Y 'g ' ' f Operating Costs for the ensuing Accounting Period a,,d shall not reduce Tenant's obligatiou to pay the balance due Landlord pursuartt to such statement. In making the computations as aforesaid, Landlord's statement shall be prima Tacie 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 Tenant's share of the Operating Costs Lan. dlord shall credit such excess to Tenant within thirty (30) days and Lahdlord may elect to apply such excess to any indebtedness to Landlord. If such overpayment is for the last Accounting Period, Landlord shall refund 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 amouut owed from such ovelpayment. (f) If the Original Term commences or terminates (other than by reason of Tenant's default) during an Accounting P~riod, Tenant's obligation for Tenant's proportionate share of Operating Costs for such Accountiug Period shall be equitably prorated. SECTION 7.4 Proportionate Insurance For each Accounting Period or portion thereof in the Original Tem~, 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 insurance 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 Signs, Awnings and Canopies (a) Tanant 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 shall be visible from the exterior thereof or within tl~ree (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 thereoI) any sign, awning, canopy, decoration, Iettering, advertising matter or any other thing without in each instance first obtaining Landlord's written approval thereof; and Tenant further agrees to design and to maintain such sign, decoration, lettering, advertising matter or other thing as may be approved in good condition and repair at all times in compliance with the requirements of the 'SIg 1 Regu ations" attached hereto, made part hereof and marked Exhibit "B". (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 obtaining 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; and Tenant further agrees that all articles and the arrangement, style, color and gefieral appearance thereof, in the interior o£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 Premises so as to keep with the character and standards of the Shopping Center. SECTION 8.2 Trade Fixtures All trade fixtures, signs and other persona ty ~ereafier nstalled by Tenan,~ n the Pr,e, mises (or any part of the S lopping Ce ~ter as permitted) shall be new or reconditioued and like new, shall be and remain the property of Tenant and shall be removed by Teuant at the expiration or earlier termination of the Term provided that: (i) Tenant shall not at such time be in default under this Lease and (ii) Tenant shall promptly restore the damage done to th.e Premises by the installation and/or removal thereof. Should Tenmlt fail to so remove Teuant's trade fixtures and/or to so restore the Premises, Landlord may do so, collecting npon demand at Landlord's option, the cost and expense thereof as Additional Rent. Any such trade fixtures which are not removed by Tenant at or prior to any termination of this Lease iucluding, but uot limited to, a termination by Landlord pursuant to this Lease, shall unless Landlord gives Tenant notice to remove any or all of such trade fixtures, be and becmne the property of Landlord PIIILAII1149973X2 070593000 22 (without any obligation by Landlord to pay compensation for such trade fixtures). In the event Landlord · gives Tenant such notice to remove any or all of such trade fixtures, Tenant shalI promptly remove such of the trade fixtures as may be specified by Landlord in such notice. Notwithstanding anything herein cootained to the contrary or any decision of any court to the contrary, tile term "trade fixtures" shall not include any air-conditioning, heating, Iighting, eIectrical and plumbing equipment installed by Tenant iii the Premises, or any wiring or other apparatus related thereto. SECTION 8.3 Alterations and Mandatory Refurbislunent (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, nmdify 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 stmcturai integrity of the building of which the Premises shall form 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 Thousaffd Dollars ($10,000.00), and provided further that any such alterations shall conform to the then current design criteria for the Shopping Center. Tenaut agrees that it will not make auy other alterations (whether structural or otherwise), improvements, additions or changes to the iuterior or exterior of the Premises (including, but not limited to, the storefrout of the Premises) during the Term without in each instance obtaining Landlord's prior writteu consent. LandIord's consent shall not be unreasouably withheld as to interior nonstmctural alterations. Furthemaore, Teuant will not, except for installation of fixtures or other work specified on Tenant's approved plans and specificatious referred to in Section 4.2 hereof or to the extent permitted by the first sentence of this Section 8.3(a), cut or drill into or secure any fixture, apparatus or equipment of any kind to auy part of the Premises without in each instance first obtaining Landlord's written consent. Together with 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 aud Tenaut shall comply with such section in performing such approved alteratioos. (b) If the Term is a period in excess of five (5) years, then as a material inducement to receiving a Te~ in excess of five (5) years, Tenant shall remodel, at its own expense, the exterior storefront aud interior of the Premises at least every five (5) years, measured from the Commeucement Date or from the commencement of the last remodeling required by this Lease, whichever is latan 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'cruises to a like-new condition and shall incorporate Tenant's latest store design concept to the extent possible without making structural alterations. Such remodeling shall include, without limitations, uew floor and wall coverings, and whatever labor and materials are necessary to generally refurbish the exterior storefront and the interior of tl~e Premises to a like-new condition. ARTICLE 9 MAINTENANCE AND REPAIR; SURRENDER OF PREMISES SECTION 9.1 Repair and Ma!ntenanee by Tenant (a) Tenant shall at all times at its own expense keep and maintain all portions of the Premises not required to be maintained by Landlord pursuant to Section 9.2 hereof, in good order and repair and in a neat, safe, clean and orderly 6ondition, including, but not limited to, reasonable periodic paintiug and making all uonstmctural ordinary and extraordinary, foreseen and unforeseen repairs and replacemeuts to the Premises and its component systems. The foregoing santence shall obligate Tenant to repair, maintain and replace, without limitatinn, all entrances to the Premises, the storefront, the glass i~ all doors aud windows of the Premises, a interinr portions of the Premises, all trade fixtures, fixtures, signs aod all wails thereof (except to the extent set forth in Section 9.2(a)), as well as plumbiog, electrical, sprinkler, heating, ventilation and air-conditioning systems, escalators and elevators, if any, mechauica[ systems, sod sewer lines within the Premises, or uude.e the rom' slab thereof, provided the subject systems or components of said systems exclusively serve the Premises. Tenant shall also maiutain fi'ee flow to the main service line, and shall repair, maintain and replace all other apparatus or ec~u.ipment which were installed by Tenant outside the Prenfises. Teoaut shall not overload the electrical wmug serving tile Premises or within the Premises, and will install at its owu expense but only after obtaioing Laudlord's written approval, any additional electrical wiring which may be required in cmmection with the Premises. If Landlord, Agent or affiliates therenf, elect to provide heating, ventilating and air-conditinning 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 others if Landlord elects not to perform such services, the Te anlt shall contract for such services with a qualified service contractor. ~ (b) Tenant will . air promptly at its own expense al,. damage (whelher structural or tmnstm, ctural) to the Premises caused by any construction or alterations performed by Tenant or bringing ituo the Premises any property for Tenant's use, or by the installatinn or removal of such property, regardless of fault or by whom such damage 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 tile, 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 for 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 Premises 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 resuIting from the insertion or construction of an expansion joint or strip in the floor slab shall not be deemed a structural defect requiring repair by Landlord, but rather, a normal construction practice which shall be Tenant'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 condemnation in which' evenl 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 which affects the structural portions of the Premises and/or the roof of the building of which the Premises are a part and/or that portion of the exterior of the Shopping Center which Landlord is obligated to repair pursnant 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, afflxation or other work of and from such repair obligation and thereafter Tenant agrees to be solely responsible for the maintenance, repair and replacement of any or all such structural portions, roof, exterior and building which have been affected as aforesaid; provided, in the event Tenant shall default in the performance of such responsibilities to Landlord's satisfaction (or at Landlord's option regardless of Tenant's performance) Landlord, in addition to LandIord'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 ar~y 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 'ay 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 the foregoing, if Tenant performs any such alterations, additions, improvemants, changes, affixations or other work in a manner inconsistent with Landlord's prior consent theretu, such work shall be deemed to have been performed without Landlord's consent. SECTION 9.3 Surreuder of Premises (a) At the expiration or earlier termination of the Term, Tenant shall peaceably surrender the Premises, broom clean, free of debris, in good order, condition and state of repair as required hereby, 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 covered by Landlord's all risk property insurance and Tenant shall surrender all keys for the Premises to Landlord and shall notify Landlord in writing of all cnn'~binations of locks, safes and vaults, if any, in tile Premises. Tenant shall comply with the provisions of Section 8.2 respecting the removal of its trade fixtures before surrendering the Premises. (b) Whether or not approved by or subject to approval of Landlord, ail alterations, improvements, additions, or changes made by Tenant and all air-conditioning, heating, 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 Premisas (whether or not such equipment and fixtures are affixed to the Premises as to be removable without destroying the chattels thanaseIves or the property to which they are affixed and whether or 0or such equipment and fixtures are real property or personalty) shall remain upon the Premises at tile expiration or earlier termination of the Term and shall become the property of Landlord immediately upon the installation thereof and shall remain the property of the Landlord without any obligation of Landlord' to pay compensation therefor. ARTICLE 10 INDEMNIFICATION; SUBROGATION SECTION 10.1 Indemnification and Waiver ofClaim (a) Tenant will defend and will indemnify Landlord and Agent and save them harmless from and against any and all 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 arising from, related to, or in connection with the perfomaance of Tenant's Work, the occupancy of the Premises or occasioned wholly or in part by act or omission of Tenant, its contractors, 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 Tanant s breach of any of the provisions of th~s Lease. (b) Neither Landlord, Agent nor their respective agents, servants, employees or contractors shall be liable for, and Tenant, in consideration of Landlord's execution of this Lease, hereby releases all claims for loss of life, personal injury or damage to property or business sustained by Tenant or any person claiming tlu'ough Tenant resulting from any fire, accideut, occurreoce or condition in or upon the Shopping Center or any part thereof (including, without limitation, the Premises and the building of which the 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, heating or air-conditioning equipmeot, 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 minting of any tank, washstand, water closet, waste pipe, drain or any other pipe or tank in, upon or about tlt~ ShoPping Center; (4) the backiug up of any sewer pipe; (5) the escape of steam or hot water; (6) water, snow or ice being upon or coining through the roof or any other place upon or neox 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) any act or omission of other tanants or other occupants of the Shopping Center. The foregoing waiver and release is intended by Landlord and Teuant to be absolute, unannditional and without exception and to supersede any specific repair obligation imposed upon Landlord hereunder. SECTION 10.2 Subrogation Notwithstandiug anything set forth in this Lease to the contrary, Landlord and Tenant do hereby waive any and all 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 Laudlord or Tenant or any party claiming by, tlu-ough or under Landlord or Tenant, as the case may be, with respect to their respective proPerty, the Shopping 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 eanse or origin, including the negligence of Landlord 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 insuranoe required by this Lease beeu carried) covered by insurance. Since this mutual waiver will preclude the assignment of any such claim by subrogation (or otherwise) to an insurance company (or any other person), Landlord and Tenant each agree to give each iusurance company which has issued, or in the future may issue, policies of insurance, with respect to the items covered by this 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 such insurance policies by reason of such mutual waiver. For the purpose of the foregoing waiver, the anmunt of any deductible applicable to any loss or damage shall be deemed covered by, atad recoverable by the insured under the insurance policy to which such deductible relates. Iu the evelrt that Tenant is pemfitted to and self-insures any risk which would have been covered by the insurance required to be can-led 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 tltereto or eonteuts thereof shall be decreed covered by and recoverable by Tenant under valid and collectible policies of iusurance. ARTICLE 11 SECTION I1.1 Insurance 1NSLrRANCE (a) Teuant will keep in force with insurance companies hay,lng an A.M. Best Rating of "A-" or better and licensed to do business in the Commonwealth of Penosylvania at Tanant's expense at all fimes during the Teml and during such other times as Tenant occupies the Premises or any part thereof: 25 1. Commercial general liability insurance with respect to the Premises, the sidewitlks, if any, abutting and adjoining the Premises, and the business operated by Tenant and any subtenants, licensees and concessionaires of Tenant in or from the Premises and its appurtenances providing, ou an occurrence basis, a minimum combined single limit of Two 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 tile result of any one accideut or disaster. If the nature of Tenant's operation is such as to place any or all of its employees under the coverage of local worker's compensation or similar statutes, Tenant sball also keep in force, at its owu expense, worker's compensation or similar insurance affording statutory coverage and containing statutory limits. Such liability insurance shall, in addition, extend to any liability of Tenant arising out of the iudennfities provided in Section 10.1 bexeof. 2. All risk property insurance covering (a) alt of Tenant's stock iu trade, trade fixtnres, furniture, furnishings, such equipment as is not affixed to the Premises, and (b) Tenant's interest in all of the improvements aud betterments installed iu the Premises by Tenant, in each case lo tile extent of at least eighty percent (80%) of their collective replacement value, without coinsurance. 3. Such other types of insurance and such additional amounts of insurance as, in Landlord's judgment, arc necessitated by good business practice or as may be standard and customary in the industry. 4. If Tenant sells or dispenses alcoholic beverages, Tenant shall 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 the provisions of this Section 11.1, or certificates thereof, togetber with satisfactory evidence of tile payment of the required premium or premiums thereof. The insurance required hereby may be maintained by means of a policy or policies of blanket insurance so long as the provisions of this Section are fully satisfied and provided, further, that such policies specifically name Tenaut's business at tile Premises and Tenant provides Landlord with a certificate of such insurance. SECTION I 1.2 Insurance Provisions All policies of insurance required to be carried by Tenant sball provide that the poIicy shall not be subject to cancellation, termination or change except after thir/y (30) days prior written notice to Laudlord and the policy referred to in Section 11.l(a)(1) shall name Landlord 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 additional insured as their respective interests may appear. In addition, such policies of insurance shall contain a provision substantially as follows: "It is understood and agreed that the insurance afforded by this policy or policies for more than one named insured shall not operate to increase the limits of the companies' liability, but otherwise shall not operate to limit or void the coverage of any one named insured as respects claims against the same named insured by any otber nanled insured or the mployees of such other named insured. SECTION 11.3 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 policies insuring against loss or damage by fire or other hazards (including, but not limited to, public liability), which Will adversely affect Landlord's all risk property or liability insurance premium rating or which will prevent Landlord from procuring such policies in companies acceptable to Landlord. If anything done, mnitted to be doue 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 Ceuter, the premium rate of all risk property or other insurance on the Premises or other property of the Shoppiug Center 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 Premises for the proposes permitted under this Lease or to such other property in the Shopping Center for the use or uses made thereof, Tenant will pay the amount of such increase or, in the event that other circumstances existing at die Shopping Center shall have contributed to such iucrease, such equitable portion of such increase as reasouably detenniued by Laudlord, as Additional Rent upon Landlord's demand and wilI thereafter pay tbe anmnnt of such iucrease, as the same may vary from time to time, with respect to every premimn relating to coverage of the Prenrises during a period falling witbln the Tem~ until such iucrease is eliminated. In addition, if applicable, Landlord may at its option rectify tbe condition existing on the Premises which caused or was a contributing cause of the increased premium rate in the event that the Tenant should fail to do so and may charge the cost of such action to Tenant as Additional Rent, payable on demand. In deternfining whether increased premiums are the result of Tenant's use of the Premises, a schedule, issued by the organization making the insurance ratg on the Premises, showing th I'l III_AlII 149973~2 070593.000 26 e~ components of such rate, s ,l be conclusive evidence of the severa~ ,terns aud charges which make up the all risk property insurance rate on the Prenfises. (b) If for any reason whatsoever Tenant fails to provide and keep in force any or all of the insurance policies set forth in Section 11.1 hereof, then in such event Tenant shall indanmify and hold Landlord harmless 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 Temh Tenant agrees to purchase from Landlord and pay for electricity to be used by Tenant at the Premises iii 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 adjustments in accordance with Landlord's Charge Rate Adjustment Schedule attached hereto as Exhibit "D". (b) Tenant shall purchase and install a water meter prior to the Commencemant Date, in accordance with Landlord'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 liei} upon the Premises, or tae realty of which they are a part, pursuant to law, order or regulation made or issued in connection with the use, consumption, maintenauce 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 nne or more of the utility services to the Premises, without any responsibility to Tenant, except to connect Tenant's distribution facilities therefor with another source for the utility service so discontinued. In addition, Landlord reserves the right to cut offend discontinue, upon thirty (30) days' notice to Tenant, furnishing any heating, ventilation, air-conditioning or other utility services furnished by Landlord and to r&move its property at any time when Tenant has failed to pay any amonnt (whether as rent or otherwise) due tinder tiffs 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 tbe 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. SECTION 12.2 Application For Utilities In the event Landlord shall cease to supply any utility services to the Premises, Tenant sball make all appropriate applications to the local utility companies at such times as shall be necessary to iusure utilities being available at the Premises at all times and shall pay all required deposits, connection fees and/or charges for meters within the applicable time period set by the local utility company. SECTION 12.30perationofHeatingandAir-Conditioning Tenant must operate heating and/or cooling equipment serving the Premises in such a manner as to maintain store temperatures at such temperatures as will prevent the freezing or bursting of pipes and the draining of heated or chilled air, hs the case may be, from any enclosed sections of tim Shopping Center. SECTION 12.4 HVAC Charge Defined 27 consideration, review or doc,,nent preparation of any consented to assignn~ent or subletting, such sam , to be paid at the time Tenant requests Landlord's execution 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, shall be transferred by sale, assignment, bequest, inheritance, operation of law or other disposition so as to result in a change in 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, Tenant 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 fil~ percent (50%) of the voting power of tile Tenant corporation or of such parent ~:orporation is held by fifty (50) or more unrelated shareholders or distributed to such number of urn'elated shareholders in a public distribution of securities. (0 If Tenant is a partnership and if any time during the Term any person who at the time of the execution of this Lease owns a general partner's interest ceases to own such general partner'~ interest, such cessation o'f ownership shall constitute an assignment of this Lease for all purposes of this Section. (g) Upon the occurrence of any such events as described in Section 14.i 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), Laudlord 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 contributions referred to herein to be made by Tenant and other tenants, 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, all annual charge ("Marketing Charge") in the anannnt specified in Paragraph J' of the Indenture of Lease, such amount to be increased on .ranuary Ist of each year during tile Term by three percent (3%) of the previous year's payment. The Marketing Fnnd shall be used to pay all costs and expenses associated with the fomlation and carrying out of an ongoing program for the promotion of the Shopping Center, which program may include, without limitation, special events, shows, displays, signs, seasonal events, 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 which, in Landlord's judgment, are necessary to administer the 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 shall have the sole authority to employ and discharge the same. The Marketing Fund may be used to defray the cost of administration of such market ag activities including the salary or payments and reimbursements due such organization and personnel, rent, travel expenses, and other business expenses· SECTION 15.2 MediaFund (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 baok acconnt into which Landlord shaIl deposit the contributions referred to herein to be made by Tenant and other tenants, the aggregate of such funds on hand from time to time being referred to herein as the "Media Fund". Tenant shall pay the Landlord, as Tenant's contribution to the Media Fund, an annual charge ("Meda Charge") in the amou-, .... ;,~_a · ~, , . ~ -~ oF~,~-scu in raragrapn o ot the Indenture of Lease, such amount to be increased on January 1st of each year during the Term by three percent (3%) of the previous 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 the promotion of the Shopping Center. Landlord shall have the sole fight to designate and contract for the services of an advertising agency or other professional organization or personnel to administer the Media Fund and such agency, organization and personnel shalI be under tile exclusive control and supervision of Landlord who shall have the sole authority to employ and discharge the same. The Media Fund may als~ be used t Ihe cost of administration c le Media Fund including the salary m .yments and reimbursements due · such agency, organization aha personnel, as well as rent, travel expanses and otber 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, pronmtion 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 lieu of Tenant's payments to the Marketing Fund and/or Media Fund, Tenant shall commence paying an amount equal to the then current Marketing Charge and/or Media Charge to Landlord, as agent for such merchants' 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 tiffs Article 15 shall be deemed "Additional Rent", shall be payable with each monthly installment of Fixed Minimum Kent, without demand, deduction or offset, and shall be prorated for partial time periods during the Term. SECTION 15.5 Expansion Opening Contribution If the Shopping Center shall be expanded by adding floor area equal to nmre than fifteen (15%) percent 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 Contribution") determined 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 TotalorPartialDestmctionofPremises (a) If the Premises shall be damaged by fire or other casualty covered by Landlord'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, shall .cause such damage 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 Premises rendered untenantable until the completion of Landlord's repairs thereto. (b) If the Premisas shall be damaged or destroyed by a fire or casualty not covered by Landlord'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 fmm and after the occurrence of such damage or destruction, to cancel and te~Tninate this Lease. Either party shall have the right, to be exercised by notice in writing, delivered to the 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 tluree (3) years of the Term, said cancellation to take effect ninety (90) days from and after the receipt of such notice by the other party, and in such event this Lease and the tenancy hereby created shall cease as of the aforesaid date (except that such cancellation shall not affect the obligations of the parties which have accrued thereto fore and remain unpaid), the rent to be adjusted as of such 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 cancellation shall be considered void. (c) In no event shall Landlord be obligated to espenc~ for any repairs or reconstruction pursuant to this Section 16.1 an amount in excess of the insurance proceeds recovered by it and allocable to the damage to the Premises afler 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 tbe abatement in whole or in part of the Percentage Rent, and the calculation · of Pete.enrage Rent shall be goverued solely by Section 2.1(e) hereof. The prnvisiens hereof nre sabject to the terms 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 theraln 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 Premisas 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 dmnage 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 reqnimd by Landlord hereunder and in addition to all other rights and remedies under this Lease, at law or in equity, 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 EMINENT DOMAIN SECTION 17.1 Total Condemnation of Premisas 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 tenninate 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 condenming 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 taking 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 continue 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 ilnmediately prior to such taking or conveyance such reduction cmnmencing 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 open for business the calculation of Percentage Rent 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 uecessary repairs, restoration and alterations of Tenant's fixtures, equipment and furnishings and shall promptly reenter the Premises and commence doing basiness iu accordance with the provisions ~'~ of this Lease. For purposes ,.~ determining the amount of funds available for restoration of the Premises · from th'e 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 recoverittg 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 compensation for land) which is equitably allocable to the Premises. SECTION 17.3 Partial Condemnation of Shopping Ceutcr If (i) more th;n one-third (1/3) of the floor area of the buildings of which tbe Premises are a or more than one-third (1/3) 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 tbe Shopping Center is so taken or conveyed and as a result of such partial taking or conveyance tbe size, layout or location of the remaining parking facilities will violate the requirements of the applicable zoning 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 Shall have the right and power, at its option to be exercised by written notice to Tenant, to terminate this Lease effective either the date title vests in the condemning authority or the date Landlord is required to deliver posseasio~r of the part so taken or conveyed, provided, however, in tbe event of a taking or conveyance described in clause (ii) if Landlord shall take immediate steps towards eliminating such violation, this Lease shall be unaffected and remain in full force and effect. In any event, Tenant shall have no claim 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 othenvise for such condemnation and Landlord and any mortgagee of Landlord are to rece ve 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 fi]e event of any condemnation are to belong to the 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 Shopping 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 merchandise, furniture, fixtures and equipment. ARTICLE 18 BANKRU?TCY SECTION 18.1 Banlcruptcy (a) If there shall be flied 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 reorganizatibn 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 option of Landlord, may be cancolled or terminated, in which event neither Tenant nor any person claiming through.or under T. enant by virtue of any statute or of an order of any court shall be entitled to acquire or remain m possessmu of the Premises, as the case may be, and Landlord shall have no further liability hereunder to Tenant or such person, and Tenant or any such person shall forthwith quit and surrender the Promises. If this Lease shall 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 statute or rule of law, may retain as liquidated damages any rent, security deposit and 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 Baokruptcy Code, 11 IJ.S.C. Section 101 et seq. (he Bankruptcy Code ), fifty percent (50%) of any and all monies or other consideration payable or otherwise to be delivered in cormection with such assigmnent shall be paid or delivered to Landlord, shall be and remain the exclusive property of Landlord and shall not constitute property of Tenant or of tbe estate of Tenant wit[ in the mean ng of the ['[liD', I~1149973~ 070593.000 33 ~ Bankruptcy Code. Any I des or other consideration constituting Landlord's property under the .precedir~g sentence not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and shall be promptly paid or delivered to Landlord. (c) Auy person or entity to which this Lease is assigned pursuant to the provisions of the Bankruptcy Code shall be deemed, without further act or deed, to have assumed all of the obligations arising under this Lease on or after the date of such assig~mrent. Any stich 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 assignment, as set forth above, Landlord shall have the right, to be exercised by giving notice to Tenant within thirty (30) days after receipt of Tenant's request to assign 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 (3000 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 shali 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 amended shall continue thereafier in full force and effect. The failure of Landlord to exercise its right of recapture shall not be construed in any manner to be an approval of Tenant's request to assign or sublet, such approval to be effective only if given in writing by Landlord to Tenant. ARTICLE 19 EVENTS OF DEFAULT, LANDLORD'S REMEDIES SECTION 19.1 Events of Default The followiug shall constitute an Event of Default: 1. If Tenant defaults in the payment of any stun ofmouey (whether 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, Marketiug 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 the remedies set forth in this Article. 2. Except as to acts, defaults, omissions and/or occurrences specified in subsections 1, 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 cannot 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 such twenty (20) day period and shall not thereafter diligently proceed therewith to completion. 3. If auy 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 thereof. 4. Any event described in Section 18.1 or Seotiou 19.2. 5. The occurrence of any other event described as constituting au Event of Default elsewhere in this Lease. SECTION 19.2 Deliberate Events of Default (a) The following shall be deemed to be a Deliberate Eveut of Default: 1. If Teoant 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 ease 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~,,~ ?f*ILAIIt 14997 ~x2 070503.000 34 any period of twelve (12) months, or (ii) fail to maintain the hours of operation required by Paragraph F · of the l'ndenture of Lease and such failure shall be repeated more than three (3) timas in any period of twelve (12) months, and notwithstanding that such failures shall have been timely cured. 2. If Tenant abandons the Premises whether the Premises are vacant or not, or if Tenant pemfits the Premises to become vacant. (b) In the event of a Deliberate Event of Default, Landlord may immediately and Without any notice to Tenant exemise 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 Term shall not have commenced Landlord may immediately cancel this Lease by written notice to Tenant, or if the Tefin shall have commenced Landlord may serve upon Tenant a written notice that this Lease and the Term will terminate on a date to be specified therein, mad 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 tenxdnation, 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 la,v, or decision of any court to the contrary, Tenant shall remain liable as set forth hereinafter. SECTION 19.4 Right of Poasession 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, ten'nination and/or dispossession by summary proceedings or otherwise, in addition to, and not in lieu of, all other remedies which Landiord 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 Tanant 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 instalhnent of Fixed Minimum Rent, one-twelfth (l/12tb) of the annual average Percentage Rent payable hereunder for the three (3) Lease Years immediately preceding (or for the entire preceding portion of the Term if less than three (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 cmnputed on the basis of the average monthly charge for the said three (3) preceding Lease Years or entire preceding portion of the Term, 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 accouut of the lease or leases of the Premises for such month. PI IILAIM 149973~ 070593.000 35 ~ The failure Landlord to relet the Premises or any part 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, such 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 Of prqparing the Premises for relettiog aK hereinafter provided. Any such liquidated damages shalI be paid in monthly instalhnents by Tenant on the day specified in this Leaso 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) hereof. 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 shaIl 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. olleet the rent thereof under such reletting. (b) In any of the circumstances mentioned in the foregoing Section 19.5(a) in which Landlord shall have the fight to hold Tenant liable 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 and fractional months which would have constituted the balance of the Term (or such lesser time period specified by Landlord), all discounted to present worth at the prime rate, together with costs and reasonal~le attorneys' fees. (c) In the event of a breach or threatened breach by Tenant of any of the covanants or provisions hereof, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if reentry, summary proceedings and other ren~edies were not provided for herein. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedies under this Lease, or now or hereafter existing at law or in equity or by statute. The provisioos of this Section 19.5(c) shall not apply to Landlord's rights under Section 5.5 which 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 fights of redemption granted by or nnder any present or future laws in the event of Tenant being evicted or dispossessed for any cause, or in any event of Landlord obtaining possession of the Premises by reason of the violation by Tenant of any of the covenants and conditions of this Leaso 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 antual anmunts for any Fixed Minimum Rent, Percentage Rent or Additional Rent are not known at the fime of such termination, Landlord shall be permitted to estimate the sums due hereunder based upon the rate of current charges and other reasonable factors. Landlord reserves ihe right to adjust the amounts due hereunder following 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 with any such notice to the satisfaction of Landlord prior to the date on which such noncompliance would constitute an Event of Default, in ~ddition to, and not in lieu of or in limitation of any other remedy which Landlord may have pursuant to this Lease, at law or in equity, Landlord may, but shall not be obligated to, enter upon the Premises and do the things specified in said notice. Landlord shall have uo liability to Tenant for any loss or damage resultiug in any way from such action and Tenant agrees to pay upon demand, as Additional Rent, any sums or costs iocurred by Landlord in taking such action, plus administrative costs of Landlord in a sum equal to twenty percent (20%) of such sums and/or costs. Notwithstanding the foregoing, Landlord's performance of any or all of Tenant's covanants shall not release Tenant from liability for nonperformance. SECTION 19.7 Confession of Judg~nent (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 IILA lO 149973L2 070593.000 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, ~UT 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 TERMII:IATION 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 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 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 JIJDGMENT 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 JIJDGMENT 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 ATTORlq-Ey. 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 '9~IEN 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 LrNDER 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 LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE, OR A TRUE AND CORRECT COPY THEREOF, SHALL BE SUFFICIENT WARRANT, WHEREUPON IF LANDLORD SO DESIRES, A Vv~R.IT 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 RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON ANY SUBSEQUENT TERMINATION OR EXr,RATION 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 RI~COVER 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 JIJDGMENT 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 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 (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. (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 SETTING 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 WARRANTS 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 waives: 1. The benefit of all laws, now or hereafter in fume, exempting any goods on the Premises, or elsewhere, from distraint, levy or sale in any legal proceedings taken by Landlord to enforce any rights under this Lease. 2. The benefit of all laws existing now or fiereafi~r 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 from the Premises, and further relieves Landlord of the obligation of proving or idenfifying 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 rent 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 enter a writ of execution or other(f process upoi1 Tenant's volu. ary waiver and further agrees that said real estate may be sold on a writ of · exectltioll 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 now specifically and knowingly authorizes Landlord to sell any 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 coudemnation of the goods, but upon five (5) days' notice to Tenant of the date, place and temps of sale, including Landlord's right to purchase all or any of the property. 6. If the Shopping Center is located in Pennsylvania, the right to any notices to quit as may be specified by the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, 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 ARTICLE 20 SECURITY DEPOSIT SECTION 20.1 Security Deposit (a) Landlord acknowledges receipt fi.om Tenant of the sum set forth in the Indenture of Lea~e to be held as 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 termthation 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 account of such default, and thereafter Tenant shall restore the resulting deficiency in 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 shall 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, in 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 21 MISCELLANEOUS SECTION 21.1 Access by Landlord Landlord may at all reasonable times, with reasonable prior notice to Tenant, except in the event of an emergency (in which event no prior notice shall be necessary) during the Tema 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 shall not be open for business. SECTION 21.2 Holding Over In the event of holding over by Tenant after expiration or other termination 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 teuancy at sufferance and in no event for month-to-month or year-to-year. Tenant shall, throughout the antire holdover period, be subject to all the terms and provisions or'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 Tenant or payments of money by Tenant to Landlord after the expiration of the term of this Lease shall be construed to extend the Term 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 rot' all loss or damage, 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~..Q,( \ PIItLAt\I 149~)73~2 070593.000 39 any other tenant or prospe~,lve 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 pmies hereto shall extend to and bind the several respective heirs, executors, administrators, trustees, receivers, legal representatives, successors and assigns of the said parties; and if there shall be more than one tenant, they shall all 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 assignmant 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 interrupfion by Landlord or any other person or persons lawfully claiming by, through or under Landlord, subject, nevertheless, to the terms and conditions of this Lease. Landlord's liability under this Section shall cease opon 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 in or prevented from performance of any act required hereunder by reason of any strike, lockout, labor dispute, civil commotion, warlike operation, invasion, rebellion, hostilities, military 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 such act by Tenant shall be excused for the period of such delay; provided, however, the foregoing shall not excuse Tenant from the prompt payment of Fixed Minimum Rent, Percentage Rent, Tax Rent, Additional Rent or any other payments required by the terms of this Lease or delay the date on which Tenant's obligation to commence such payments shall begin. Notwithstanding anything in this Lease to tbe contrary, Landlord shall not be deemed in default with respect to the performance of any of the terms, 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 financing, 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 monetary obligations of Tenant hereunder, whether or not denoted as rent hereunder, shall not be construed as a waiver of any preceding breach by Tenant of any 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 deemed to have been waived by Landlord, unless such waiver be in writing and executed by the Landlord. SECTION 21.7 Custom and Usage Any law, usage or custom to the contrary notwithstending, 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 the part of the Landlord in refraining from so doing at any time or thnes 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 same shall not be cor~strued as having created a custom in any way or manner COlm'ary to the specific terms, provisions and covenaots of this Lease or as having ill any way or rammer modified the santo. SECTION 21.8 Accord and Satisfaction No payment by Tenant or receipt by Landlord of a lesser amount than any payment of rent or Additional Rent herein stipulated shall be deemed to be other than on account of the earliest stipulated/~ miL^In 149973~2 070593.000 40 rent or Additional Rent th,,,~ 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 sanae 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 folwVarded to Landlord's lock box or directly to Landlord, Agent or elsewhere and Landlord or Landlord's bank may accept such check or paymant without prejudice to Landlord's right to'recover the balance of such rent or pursue any other remedy provided in this Lease, at law or in equity. SECTION 21.9 Creditworthiness of Tenant Within ten (10) days of receipt of a request therefor from Landlord, Tenant agrees to for~vard to Landlord a financial statement of Tenant and/or if applicable, Tenant's guarantor or surety, in foml 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 accel~table to Landlord· If the financial or credit rating of Tenant 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 xvithout 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 Defanlt hereunder. ' SECTION21.10 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, 5.3(i), 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 Agreemant 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, arrangements, 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 may rider hereto is inconsistent with any printed provisions of this Lease, the provision contained in such rider shall supemede said printed provision. Tenant hereby acl~owledges 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 department store or regional or national chain store or any other memhant 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 ofindanement 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, inany way or for any purpose, become a partner of Tenant in the conduct o£ 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 included solely for the purpose of providing a method whereby adequate rent is to be measured and ascertaiued. SECTION 21.13 Notices All payments of rant 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, until Tenant is notified otherwise in writing, and all notices given to Landlord hereunder shall be in/' writing sod forwarded to it at such address, attention: Law Department, postage prepaid, by registered Jr Pill LA I\1149973~ 070593.000 4 l or certified mail, return reo.,pt requested or by nationally recognized expedited delivery service which · provides proof of delivery. All noticas to Tenant shall be forwarded to it at the 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, ie 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 behalf by Agent or by any attorney for Landlord or Agent. SECTION 21.14 Captions The captions apI~earing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections or articles of this Lease and do not in any way affect this Lease. SECTION 21.15 Tenant 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 nmre than one Tenant, any notice required or permitted by the terms of this Lease may be given by or 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 individual, 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 have 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 fom~s a pat for the satisfaction of Tenant's remedies, including without limitation, the collection of any judgment or the enfomement 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, the 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 mean 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), the "Landloixl" initially named herein, or in the case ora subsequent transfer, the transferor, as of the date of such 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 ali 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 the Landlord or any transferor only during the periods in which it is a Landlord hereunder. SECT1ON 21.17 Liability of Agent K-J-avitz 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 fulfillment or non-fulfillment of any of the temps, 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. Any waiver of Landlord's liability hereunder, including any waiver of subrogation rights, shall apply with equal force and effect of such Agent. I,,tc^lu I~u o7o~.ooo 42 A~ SECTION 21.I 8 Effect of ,vemmental Limitation on Rents and Other Charges , In the event that any law, decision, role or regulation of any governmental body having 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 following amounts shall nevertheless be payable by Tenant: (i) throughout such period of limitation, Tenant shall remain liable for the maximum amount of rent and other charges which 'are legally payable (without regard to any lirnitat!on 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 which 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 from the Tenant during the period of limitation but which were not paid because of such limiting law, decision, role or regulation, and (iii) for the remaining Term following the pefiod of limitation, Tenant shall pay to Landlord all amounts due for such portion of the Term in accordance with 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 unenfomeable 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 shall not record this Lease without the written consent of Landlord. 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 Promises, 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 Pmmisas, the Shopping Center or this transaction, the party having failed to disclose such contact will be responsible for and will defend, indemnify 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 Constmcfion/Wime of the Essence It is the intent of the parties hereto that if any term, covenaut, 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 essence 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 any hazardous substance, hazardous material hazardous waste or toxic substance as such terms are now or hereinafter defined under any Enviromnantal 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 govermnental anthority to be capable of posing a risk of injury to health, safety or property. I'IllLAI\114997]~2 07059].000 43 (b) Tenant shall ._ot 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 Premi'ses or Shopping Center by Tenant, its agents, employees, contractors or invitees, except that constmctian materials (other than asbestos or polychlorinated 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 anmunts 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 timas in compliance with all Environmental Statutes and all other applicable governmental 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 mechanical apparatus in the Premises or on the Shopping Center contains any Hazardous Material placed there by Tenant or Tenant's agents, servants, contractors 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, remove and properly dispose of same, and any material that was contaminated by the Hazardous Material, off the Shopping Center mad 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 hereof, or (ii) comply ~vith all Enviromnental 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 the enviromnent relating to such Hazardous Material, in which event Tenant shall reimburse Landlord, on demand, for ail costs incurred by Landlord in doing so and securing the certificates referred to below. (d) If Landlord requires Tenant to perfoma 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 specifications 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 Euvironmental 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 perform or permit to be perforated such work in strict accordance with the process as approved by Landlord. Tenant sball close for business while such work is being perfon'ned. Landlord reserves tile right to monitor the performance of such work from time to time and, if Landlord believes.that such work is being done in a mmmer 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 corrected to Landlord's satisfaction. Tenant shall replace any contaminated equipment 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 perfmm 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 ilzs~all 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 tile 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 commancement 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 Laodlord performs such work it shall do so in compliance with all Environmental 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 the performence 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. (f) 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)/~ PlllLAI~1149973k2 07059.1.000 44 all notifications, registrati~.,s, repons and other documents, and supporting information, prepared, ' submitted or maintained in connection with any Environmental Statute; (iii) all permits, licenses, approvals, and amendments or modifications thereof, obtained under any Enviromnental 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 Environmental 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 Premises or Shopping Center. If Tenant does install or cause the installation of any such Tank, Tenant shall comply with all applicable, laws as to its installation, maintenance, operation and closure, including any requirement for the maintenance of liability insurance with respect to risks associated witb any such Tank. If such liability insurance is required to be maintained, Landlord shall be named as an additional insured thereunder 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 expense, remove any Tank instal, led by Tenant and any associated contaminated material and perform all tests required by Landlord and any required by applicable Environmental Statutes and provide Landlord and all required government agencies with the results of such tests in such form as required by Lamllord m- as required by Environmental Statutes, or Landlord may perform such removal and tests and Tenant shall reimburse Landlord, on demand, for all costs ificurred by Landlord in doing so. (h) If tbe use of the Premises by Tenant or any operation or activity conducted at the Premises during the Term is such as requires, under any presant or future Environmental Statute, tbe obtairting 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) th coonection 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 temrination of this Lease (each of the transactions and occurrences refen-ed to in the foregoing clausas (i), (ii) or (iii) being hereinafier called a "Change"), Tenant, at Tenant's sole cost and expense, shall, in compliance with' all Environmental Statutes, apply for and, prior to the Change, deliver to Landlord a copy of the required Environmental Approval or acknowledgment and Tenant sball perform all remedial actions reqnired by such govermnental agency for the issuance of the Environmental Approval in whole or iu part by reason of Tenant's use of the Premises or operations or activities at the Premises during tbe Term; provided that as to any Change which is a change or transfer of ownership o£the Premises or of an interest in Landlord or in any entity which directly or indirectly controls Landlord, Tanant shall iustead (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 perform or, at the option of Landlord, reimburse Landlord within fifteen (15) days' all:er 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 ail other costs and expenses which are attributable to the existence of Tenant's tenancy or to Tenant's use oftbe Premises or to any operatmn or activity at the Premises during the Term and which were incurred to obtain such required Environmental 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 authorized 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 this 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 Submission of Lease to Tenant THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION 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 SECTION 21.25 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 performed and rendered by independent, outside legal counsel. SECTION 21.26 Shopping 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 interest in this Lease, nor in any estate created hereby shall pass to any trustee or receiver or assignee for the benefit of creditors or other,vise 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 Mortgagee 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 YU'RY 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 IN 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 commencement of the initial construction of the Premises, aod from time to time thereafter prior to the commencement of any material renovations or alterations to the Premises, the Teuaut 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 fol~n of a certified check, The constrncti~9.1t..,-..- security deposit is intended lo secure the proper performance of all portions of Tenant's Work which are · either Oisible from the enclosed mall or considered by Landlord, in 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, wlxich include, without limitation, Tenant's storefront and Tenant's HVAC, sprinkler, electrical and plumbing systems, are hereinafter refereed to as "Tenant's Escrow Work"). Landlord shall not be required to deposit the construction security deposit into an interest bearing account. Also, in the event the construction security deposit is posted by Tenant's general contractor, Tenant shall indemnify and hold Landlord harmless from any claims made by Tenant's general contractor against Landlord 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 wift be returned to Tenant. However, if 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 i0strnetions, to the reasonable satisfactiola of Landlord. If the modifications are not completed within the aforesaid thirty (30) day period to LandIord'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 construction security deposit and will pay the independent contractor said costs out of the construction security deposit. A twenty (20%) percent administrative charge will be added to the independent contractor's invoice to reimburse Landlord for its work, which administrative charge will also be deducted from the construction security deposit. The balance oftbe construction security deposit, if any, will be returned to Tenant. (c) In the event the total cost of said work by the independent contractor and Landlord exceeds the amount of the construction security deposit, Tenant shall reimburse Landlord the amount of such total cost which exceeds the amount of the construction security deposit within thirty (30) days of Tenant's receipt 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 foregning provision with respect to the construction security deposit is in addition to, and not iu lieu of, Landlord's other rights and remedies under this Lease. SECTION 21.31 [Intentionally Omitted] SECTION 21.32 Satellite Dish (a) In the event Landlord makes available a satellite dish for Ihe general use of tenants of tbe 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 harmless from and against any and all ~:I~ims, actioos, damages, liability and expense in connection with loss of life, bodily injury, personal injury and/or property damage arising from or out of the use by Tenant or Tenant's agents, contractors, servants or employees of the satellite dish and related equipment. SECTION 21.33 Adjustment o f Square Footage In the event that the actual square footage of the Premise~ when fully constructed (herein referred to ~ "As-Built Square Footage") shall be different from the square footage as set forth after the words "Total Area" in Paragraph A of the Indenture of Lease (herein referred to as "Square Footage"), such "As-Built Square Footage", as accurately determined by Landlord's architect or engineer, shall 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 herein be those amounts which bear the same relationship to the Fixed Minimum Rent and Percentage Rent Gross Sales Base herein stated as the actual As-Built Square Footage bears to the Square Footage· 47 EXHIBIT "A" SITE PLAN OF SHOPPING CENTER 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. m x c LANDLORD HERESY RESERVES THE RIGHT, AT ANY TIME AND FROM TiME TO TIME, TO ALTER OR OTHERWISE MODIFY THE LOCATIONS AND/OR DIMENSIONS OF ALL RU)LDINGS, PARKING AREAS, ROADS, ENTRANCES. EXITS, MALLS AND OTHER FACILITIES SHOWN ON TH)S EXHIBIT "A". TO PLACE IN THE MALLS, COURTS. CORRIDORS AND OTHER COMMON AREAS OF THE SHOPPING CENTER, LANDSCAPING. DECORAT{VE ITEMS, AND BTRUCIURES, AND AREAS FOR REIAIL SALES AND PROMOI'IONAL ACl{VITIES, AND TO CONSTRUCT, LEASE, OPERATE AND MAINTAIN BUILDINDS, STRUCTURE,~, 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. EXHIBIT "B" SIGN REGULATIONS (a) The purpose of these regulations is to encourage and develop creative and diversified signage for Tenant's store in compliance with the following criteria which shall in any event be limited by the provisions of Section 8.1 of the Lease. 1. Wording of the signs shall be limited to Tenant's pemfitted store or trade name. Tenant's customary signature or logo, hallmark, insignia, or other trade identification will be permitted only if in 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 Landlord at Landlord's sole discretion. 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 (1) size shall be consistent in style and size: 16" high maximum, up to 2~ thick, unless otherwise approved, and pin mounted. The 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 coosistent in style. Capital or upper case letters are limited to a maximum height of 18" and lower Case Ietters are limited to 12". Approval by Landlord of any deviations from .this qriteria shall 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 maximuln length of sixteen feet (16') and shall terminate a minimum 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 present an orderly appearance of all of the signs of ali the tenants in the Shopping Center, taken as a composite or panorama of signs. 4. Printed signs on storefronts or show windows are probibited 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 minimum sizes may be used. 6. Paper signs, stickers, banners or flags may not be used by Tenant. 7. An exterior sign (one located on the outside of Tenant's rear wail) shall be permitted only with Landlord's prior written approval and shall be limited to those tenants authorized by Landlord to have a direct rear customer entrance from the parking area. Such signs shall be subject to L ndlord s sole d seretmn as to destgn, size and location. 8. No exposed raceways, ballast boxes or electrical transformers will be permitted. 9. Sign company names or stamps shall be concealed (applicable ordinances and codes pemfitting). pernfitted. 10. No exposed sign illumination and no flood lighting of signs or storefronts shall he 1 l. 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 on the glass, not over four and one-ball inches (4~) in height. 12. No more than one store sign may be installed on each Shopping Center frnntage in which one or more customer entrances are located. If Tenant has Shopping Center frontage with a custmner eotrance on each level of the Shopping Center, two signs may be installed, one on each level of the Sbopping Center. If the Premises is a "comer" store, even though a customer entrance is not located on each frontage, two store signs may be installed, one on each Shopping Center frontage of the Premises. The use oflogo's is also encouraged. 13. MaxiL am brightness allowed for interior signs which front on the enclosed mall · will be one hundred (100) foot lamberts taken at the letter face. 14. No portion of any sign shall project more than four inches (4") beyond the store front 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 b. ottom of any projecting sign shall .not be located closer than eight feet (8') to the finished floor. 1.6. 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 when required by code. 18. All signs must be approved by Landlord's representative. 19. No wood blocking or flammable construction material is to be used in the attaclunent 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 Tenant without Landlord/s prior written approval of their size, type, location, quality and aesthetic properties. (c) Should there be a conflict between these sign regulations and those in the Tenant Criteria Manual, the Tenant Criteria Manual shall take precedence. Changes to the 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 Additioual 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 anaount 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 connected 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 information, Landlord or Landlord's electrical engineer shall make an estimate of the annual total of average monthly charges (the "Electricity Componenf') which Tenant would otherwise 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 and were not being furnished by Landlord; provided, however, in no 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 Minimum 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 sums 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 authm'ity. 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 be determined in the same maimer and subject to the same adjustments as Tenant's Electricity Component. 2. At any time after the expiration of one (1) year from the date of the notice referred to in Paragraph 1, and from time to time thereafter, if, in Tenant's judgment, Tenant's Electrical Installations have 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 and Tenant do not agree upon the anmunt of such reduction, file 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 terms 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 forth above, the Electricity Component is in excess of the annual amount of the charges which Tenant would other,vise 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 furnisbed by Landlord. If, within thirty (30) days after a failure by the parties to agree upon the amonnt 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 rules 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 o£ 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 TenanLwould otherwise be required to pay, as aforesaid, the amount of such excess or deficianey. The decision of the 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 tha~.~ 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 Laodlord 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 become effective as of the first day of the first full calendar month following the month in which the demand for the appraisal was made. 5. If, from time to time after the Conunencement Date of the Tenn, the electrical charges which Tenant would othe~vise 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 thereo0 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, sumharge 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 determined 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 Tenant, 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 as 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 estimated 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 adjustmenLas set forth herein, and shall be paid in advance on or before the first day of each calendar month during the Term 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, heating 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 more 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 limitation, (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 term "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 purposes 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 gnvermnental or quasi-governmental agency 6r'authority or taxing authority. (iii) Tenant's share of the Service Charge shall be detemained by multiplying 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 m~d 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 pgrposes of determining the square footage of Serviced Area for this calculation, Landlord's engineer shall determine which common 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 billed 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 calculation, "common areas" shall include those office areas being used by Landlord in its operation and maintenance of the Shopping Center. Al, (v) ~andlord shall estimate the amount ot ~e Service Charge, from time to time, h~sed 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 Landlord 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 Landlord. In the event Tenant's share of the recomputed Service Charge exceeds Tenant's paym6n~s 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 recolnputed Service Charge is less than Tenant's payments towards the estimated Service Charge for said accounting period, Tenant shall 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 anmunt of such overpayment provided Tenant 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 flint: a) The heat gain contribution of people is in excess of three and one- half (3.5) BTUH per square foot of Prelnises Floor Area; and/or b) The heat gain contribution of electrical load is in excess of twenty and one-half (20.5) BTUH per square foot of Premises 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 in any 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 interraption 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 reasonable efforts to restore the discontinued service in all situations which are not due to the fault of Tenant hereunder. Utilities (a) Tenant shall be solely responsible for and pr6mptl~ pay all charges for heat, water, electricity, sewer rents or char~es, 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 Colnmencement 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, 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 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 Prelnises, 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 Adjustment Schedule attached hereto as Exhibit "D". (b) Tenant shall purchase and install a water meter prior to the Conrmencement Date, in accordance with Landlord's specifications, at Tenant's sole cost aud expense. (c) In the event, local authority, municipality, utility o, other body collects for the water ' and/or .~ewerage or sanitary service and/or consumption, as aforesaid, Tenant covenants and agrees to pay the water and sewer rent charge (both minimum and other~vise) 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 law, order or regulation made or issued in connection with the use, consumption, maintenance or supply of water, or the water or sewerage connection or system. (d) Landlord may, after thirty (30) days' notice to Tenant, cease to funfish any one or more of the utility services to the Promises, without any responsibility to Tenant, except to connect Tenant's distribution facilities therefor with another source for the utility service so discontinued. In addition, Landlord reserves the right to cut off and discontinue, upon thirty (30) days' notice to Tenant, furuishing 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 amonnt'(whether as rent or other~vise) 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 of this Lease, "Operating Costs" 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, cIeaning, 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 endorsement covering false arrest, detention or imprisonment, malicious prosecution, libel and slander, and wrongful entry or eviction, worker's compensation insurance, plate glass insunn~ce, contractual liability insurance and fidelity bonds but excluding the insurance referred to in Section 7.4 hereof); removing snow, ice, rubbish and debris; inspecting, poliaing, providing security and regulating traffic; rental of sweepers, trucks and other equipment; depreciation (over a period not exceeding sixty (60) months) of mechinery 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, eIectrical 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, roles, 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 Canter; stormwater management facilities; the gross compensation and fringe benefits of the Shopping Center manager, the Shopping Center office pemonnel and all other on-site personnel required to supervise add accomplish the foregoing and an 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 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 cxecutiun by Landlord of a Lease Agreement dated as of the __ day of March, 2000, bet~veen CAM~ HILL SHOPPING CENTER ASSOCL~TES 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, (heremaflar 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, convenants and conditions thcrenf 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 nnticc or acceptance hereof, but the same shall be deemed to have been accepted by thc 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 all the terms, covenants and conditions of the Lease which shall be binding upon the sa~d Tenant az provided in the Lease; (3) no extension, forbearance or leniency extended by Landlord to the said Tenant shall discharge Surety and Surety agrees at all timas it will be liable notwithstanding same and notw thstanding thc 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 sucb modifications, extensions, amendments or other covenants respecting the Lease and that Surc~y sball not be released thereby, it being ~ntended that any join~tcr, ~a]¥¢r, consent or agrcanmnt by Tenant 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 otherwise affected; ($) neither the Surety's obligation to make payment in accordance with the terms of this agreement nor any remedy for the enforecment thereof shall be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of thc ~anant or its estate in bankruptcy or of any remedy for the enforcement thereof, resulting from thc operation of any present or future provision 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 anthorization, without limitation, in thc Lease, and with the same force and effect as if it were designated in and had executed the Lease as Tenant thereunder. The underaigned, 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 compctnnt Court an action or actions for the rccovecy of any sum or sums of money which may be due or become due hereunder, and in said action or actions to confcas judgment against the undersigned for said sum or sums, as of any term, w/th or without declaration filed, and with attorney's fees, interest and costs together wfth n attorn? s comm~ssmn of five (~%) percent th. creel. Said authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time and as often as any said sum or sums becomes duc hereunder, and such powers may be exercised as well after thc expiration n£tbc original term during any cxtansiun or renewal of thc thc Lease. In any sncb action, Landlord shall first cause to be filed in such action an affidavit made by it or smnconc acting for it setting forth the facts necessary to authorize thc 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 bc neccesary 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. Thc undersigned further waives thc right to delay execution on any real estate that may be levied upon to collect any amonnt which may be due under the terms and cond~tlons of this Suretyship Agreement, and authorizes the prothonotary to enter a Writ of Execution or o~hcr process upon thc undersigacd'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 sball be the joint and several obligation of all such parties, and shall not be revoked or impaired as to any by the death of ~11 or any of such parties, or by the revocation or release of any obligations bereunder, by or against all or any &such other parties. Philal\1155278\1 070593.000 IN WITNESS V. 2KEOF, the undersigned has ca~sedJ, h ~, Suretyship Agreement to be duly executed this day of De~'2x~ci, 1999..~/~_~_~ WIT~/S ROBERT PHAM Address: ~ (Home) NAOmi PHAM Address: (Home) EXHIBIT "G" PL,AN OF PREMISES WITH DELINEATION OF PERMITTED OUTSIDE SEATING AREA LADLES STeeRAGE 1 ~ELYN L~IES CLOTHINJ E WARD'S CARD~ & GI~S EXHIBIT 2 07/12/26@2 12:25 7177576429 CAMPHILL NALL PAGE 02/~3 I HILL 8HO~N~I MALL T~; 01;4~ PM I I 07/12/2062 12:25 7177376429 CAMPHILL MAU- PAGE 03/03 Gr4~ ToI~I: 36,62~A0 91s*,50 912.50 Z,ll~.(~ Z, 162.00 a0.474.40 EXHIBIT 3 CHARLES W. JOHNSTON JAMES A. DIAMOND" *Also Admitted to NJ Bar LAW OFFICES JOHNSTON & DIAMOND A PROFESSIONAL CORPORATION SUITE 100 150 CORPORATE CENTER DRIVE P, O. BOX 98 CAMP HILL, PENNSYLVANIA 17001-0098 June 26, 2002 TELEPHONE (717) 975-5500 TELECOPIER (717) 975-5511 VIA UPS OVERNIGHT AIR Mani Caffe International, Inc. t/a Mani Caffe Camp Hill Shopping Mall 32nd Street and Trindle 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 rights 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 ~mly yours, JOHNSTON &; DIAMOND, P.C. JAD/jff Enclosure CC: Dennis Bards, Property Manager Nina R. Kilroy, CPM, Sr. Vice President A. Diamond EXHIBIT 4 AFFIDAVIT OF SERVICE BY HAND DELIVERY I, DENNIS BARRIS, General Manager of the Camp Hill Shopping Mall, located at 32na Street and Trindle Road in Camp Hill, Cumberland County, Pennsylvania, hereby depose and say as follows: On July 23, 2002, at[~:/'~ O'clock, ~ .m., I personally delivered to [name, if known], the person for the time being in charge of the Mani Caffe store, Space No. C-3 in the Camp Hill Shopping Mall, located at 32"a Street and Trindle Road in Camp Hill, Cumberland County, Pennsylvania, whose physical de- scription is as follows: [describe person to whom delivery is made] a Notice of Lease Termination effective July 23, COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND 2002, a tree and correct copy of which is attached hereto and incorporated herein by reference. SS.: On this, the 23~d day of July, 2002, before me, a Notary Public, the undersigned officer, person- ally appeared t~enrl ;s (~cr ~;a , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he exe- cuted the same for the purposes therein contained. In witness whereof, I hereunto set my hand and seal. NOTAR ~.//LICY]~/~ ,.-- NOTNII,AL EIF. AL JOAN fl, FRY, Noilly Pul)Dc Camp Hill, Cumberland County My Commil~on Ex, res Nov. 14, 2002 CHARLES W. JOHNSTON JAMES A. DIAMOND* *Also Admit~l to NJ 8ar LAW OFFICES JOHNSTON &: DIAMOND A PROFESSIONAL CORPORATION SUITE 100 150 CORPORATE CENTER DRIVE P. O. BOX 98 CAMP HILL, PENNSYLVANIA 17001-0098 TELEPHONE (717) 975-5500 TI~LECOPIER (717) 975-5511 July 23, 2002 VIA HA~ DELIVERY AT PREMISES Mani Caffe International, Inc., doing business as Mani Caffe C.~a~aa p Hill Shopping Mall, Store No. C-3 32 a Street and Trindle Road Camp Hill, PA 17011 Re: Camp Hill Shopping Mall - Mani Caffe (Store No. C-3) Notice of Lease Termination - Effective July 23, 2002, ll:59 p.m. Dear Sir/Madame: As your records will reflect, I am attorney for Connecticut General Life Insurance Com- pany (hereinafter "Landlord"), owner and Landlord of the Camp Hill Shopping Mall in Camp Hill, Pennsylvania. Please be advised that Landlord, in exercise of its rights under Article 19 of the Lease, hereby notifies Mani Caffe International, Inc., doing business as Mani Caffe, that its Lease relating to its Camp Hill Mall store, and the balance of the term of the Lease, shall termi- nate effective at 11:59 p.m., July 23, 2002. You are further notified that you are required, imme- diately upon the Lease termination effective date, to quit and surrender the Demised Premises. The aforesaid termination of Lease by Landlord is due to the continuing material breach of the Lease by Mani Caffe International, Inc., doing business as Mani Caffe, including its con- tinuing failure or refusal to pay installments of rent and other charges under the Lease, notwith- standing repeated Notices of Default from Landlord. Such continuing failure or refusal to pay sums due under the Lease constitutes an Event of Default and a Deliberate Event of Default un- der Article 19 of the Lease. Mani Caffe International, Inc., doing business as Mani Caffe July 23, 2002 Page 2 As was reflected in the Notice of Default that I sent to you on behalf of Landlord dated June 26, 2002, the principal amount of your accrued delinquency of rent and other charges pur- suant to the Lease as of that date was at least $36,623.40. You have failed to properly cure that delinquency. Thank you very much for your kind attention to this matter. If you have any questions, you---or your attorney, if you are represented in this matter--should direct them solely to our offices, as attorneys for Landlord. CC; Very truly yours, JOHNSTON & DIAMOND, P.C. ~AM~S A. DIAMOND (via Certified Mail) Mr. Robert Pharn and Ms. Naomi Pham 1106 Waynesford Road Mechanicsburg, PA 17050 Nina R. Kilroy, CPM, Sr. Vice President Dennis Barris, General Manager VERIFICATION I, NINA R. KILROY, Senior Vice President of Metro Commercial Management Services, 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 tree and correct to the best of my knowledge, information and belief. mLRO ' / State of New Jersey SS.: County of Gloucest:er On this, the ~t~ day of ~ , 2002, before me, a Notary Public, the undersigned officer, personally a~)peared 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. ,IfiL J. NOTARY PUBLIC OF NEW JERSEY ¥~ CU~msao~ Expires Janua~ 20,2005